# Appendix — Barnett v. United Air Lines, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 1087

## Text

—

Case No.

UNITED STATES SUPREME COURT
1984 TERM

FRANF E. BARNETT,
Petitioner,
Vv.

UNITED AIR LINES, INC. and
ASSOCIATION OF FLIGHT ATTENDANTS,

Respondents.
On Writ of Certiorari to the United

States Court of Appeals for the Tenth
Circuit

APPENDIX TO PETITION FOR CERTIORARI

HOBBS/BETHKE & ASSOCIATES

Larry F. Hobbs, P.C.*

William P. Bethke

Attorneys for Petitioner

5353 West Dartmouth Avenue, Suite 501
Denver, Colorado 80227-5564

(303) 989-5850

*Counsel of Record

TABLE OF CONTENTS

Page
45 Gs8.G» ieee ee 1

29 GebsCe § | EE 4

District Court Order
of Dismissal
(February 8, 1982).......... 7

Reporter's Transcript of
Ruling on Motion to Dismiss
(Pebruary 17, L982) AFA is a labor organization
representing flight attendants, such as
Barnett, employed by United. In his
amended complaint, Barnett alleges that
United breached his contractual right
under the Collective Bargaining

Agreement between United and AFA, and

1 As noted later in this opinion,
however, air carriers are expressly
excepted from the application of § 3, 45
U.S.C. § 153. See, §$§ 201 and 202, 45
U.S.C. §§ 181 (Supp. V 1981) and 182
(1976).

21

that AFA violated its duty to him of
fair representation. Barnett argues
that United improperly adjusted his
seniority statuts in violation of the
Collective Bargaining Agreement.
Further, he claims that AFA
"demonstrated bad faith and acted
arbitrarily and capriciously by failing
to process [his] grievance, by failing
to furnish proper representation to
[him] at the arbitration hearing, and by
failing to advise the arbitrator of
their own practice of interpreting the
collective bargaining agreement to
afford seniority credit for time served
in temporary inflight service
Supervision status." Rese VOLi~s f
(Amended Complaint) at 12.

The Collective Bargaining Agreement
between United and AFA controls pay

rates, rules, and working conditions for

22

United flight attendants. Further, the
Agreement established an arbitration
board (System Board of Adjustment)
pursuant to section 204 of the Railway
Labor Act, 24 U.S.C. § 184 (1976). This
Board is authorized to render final,
binding decisions on grievance disputes
between United and its employees.
Barnett filed his grievance
purusant to the Agreement based upon his
contention that United improperly
adjusted his seniority status. The
System Board denied Barnett's grievance
in a decision dated September 7, 1978,
which he received "Several days later."
R., Vol. I (Amended Complaint) at 12.
On October 14, 1980, Barnett filed the
present action in federal district court.
For relief, Barnett asked the court,

inter alia, to "vacate the award of the

System Board of Adjustment ... and

°

23

restore the plaintiff to his proper
seniority statuts."2 RB.» Vein &
(Amended Complaint) at 13. The district
court dismissed the action based on

United Parcel Service, Inc. v. Mitchell,

451 U.S. 56 (1981), finding that the
applicable statute of limitations was
Colo. Rev. Stat. § 13-22-214(2) (Supp.
1982), which establishes a ninety-day
limitation period for an action brought

to vacate an arbitration award.

2 Because Barnett styled his suit in
this manner and because if he were
successful, the suit would effectively
vacate the Board's award, we will view
this as an action to vacate an
arbitration award. See United Parcel

Service, Inc. v. Mitchell, 451 U.S. 56,
61 (1981). In United Parcel, the
Supreme Court noted that even though a
plaintiff seeking review of an
arbitration award characterizes an
action in a particular manner, i.e., as
one for breach of contract, “they
overlook the fact that an arbitration
award stands between the employee and
any relief which may be awarded against
the company." Id. at 62-63 n.4.

24

Bie

The issues on appeal are (1)
whether the District Court erred in
applving the ninety-day Colorado statute
of limitations and (2) whether Barnett
timely filed this action under the
applicable statute. We hold that the
District Court erred in applying the
Colorado statute; 45 U.S.C. § 153 First
(r) (two years) is the appropriate
Statute of limiations for this cause.
We further hold, however, that Barnett
failed to file this action within the
requisite two-year limitations period.
We will, therefore, affirm the dismissal
of this action.

I.
Although air carriers are subject

to most provisions of the Railway Labor

yb

Act,3 they are expressly excepted
From § 3, 458 U.S.C. § 1353 (2976)
(hereinafer cited as "section 153").
See 45 U.S.C. § 181 (Supp. V 1981).
Section 153 provides for the
establishment of a National Adjustment
Board for railroads. Specifically, 45
U.S.C. § 153 First (r) provides for a
two-year limitations period for any
action at law brought on an award by a
division of the adjustment board. In
section 204 of the Act, 45 U.S.C. § 184
(1976), Congress authorized the airline
industry to establish “local"™ boards

having the same jurisdiction exercised

3 Air carriers are subject to § l, 45
U.S.C. § 151 (1976) (definitions); § 2,
45 U.S.C. § 15la (1976) (statement of
purposes); §§ 4 and 5, 45 U.S.C. §§ 154
and 155 (1976) (National Mediation
Board); and §§ 7, 8, and 9, 45 U.S.C. §§
157, 158, and 159 (1976) (voluntary
arbitration and emergency boards). See
§§ 201 and 202, 45 U.S.C. § 181 (Supp. V
1981) and 182 (1976).

26

by system, group, or regional boards of
adjustment authorized under section 153.
In section 205 of the Act, 45 U.S.C. §
185 (1976), Congress authorized the
National Mediation Board to establish,
when it deems necessary, a National
Board of Adjustment for air carriers
Similar to the railroads’ national board.

However, no provisions is expressly made

for a limitations period governing

actions at law to review air carrier

board decisions.

The Supreme Court has repeatedly
held that when Congess has not expressly
provided a statute of limitations
governing federal statutory actions, a
court must apply the most "'appropriate

state statute of limitations.'" United

Parcel, supra at 60 (quoting Johnson v.

Railway Express Agency, Inc., 421 U.S.

454, 462 (1975) and Auto Workers v.

27

Hoosier Cardinal Corp., 383 U.S. 696,

704-705 (1966)). The district court
adopted the appellees' position that

United Parcel is dispositive of the

issue before us. We disagree. AS we
will disascuss, the uniqueness of the
Railway Labor Act prevents the

mechanical application of United Parcel

to the circumstances before us.4

4 United Parcel was an action for
wrongful discharge brought by an
employee (a car washer) against his
employer (United Parcel Service, Inc.)
under section 301l(a) of the Labor
Management Relations Act, 29 U.S.C. §
185(a) (1976). The employee's Union
filed a grievance on his behalf, which
was submitted to arbitration before a
joint panel (union and company
representatives) pursuant to their
collective bargaining agreement. After
hearing, the joint panel rendered a
binding decision upholding the discharge.
The employee subsequently filed an
action at law under section 30l(a),
alleging that the Union had breached its
duty of fair representation and that UPS

28

a

In Occidental Life Ins. Co. v EEOC,

432 U.S. 355, 367 (1977), the Supreme
Court noted that a state statute of
limitations will not be "mechanically
applied" merely because the federal
Statute failes to expressiy provide for
a limitations period. The Court
emphasized that "'[a]Jlthough state law
is our primary guide in this area, it is

not, to be sure, our exclusive guide.'"

4 (cont.) discharged him for reasons
other than those stated, in violation of
the collective bargaining agreement.
United Parcel, supra at 58-59.

The Supreme Court held the
employee's suit was effectively one to
vacate an arbitration award. Id. at 6l.
Further, because Congress had failed to
provide an express limitations period
for section 301 actions, the "most
appropriate one provided by state law"
must be applied. Id. at 60. Thus, one
Court held that the New York ninety-day
statute of limitations for an action to
vacate an arbitration award was proper
-- it was consistent with the federal
law policy of rapidly disposing of
disputes in that sector. Id. at 63-64.

29

Id. (quoting Johnson v. Railway Express

Agency, supra at 465). We must not

borrow a state limitations period if its
application would be inconsitent with

federal policy. Occidental, supra

(citing Johnson v. Railway Express

Agency, supra; Auto Workers v. Hoosier

Cardinal Corp., supra at 701; and Bd. of

County Comm'rs v. United States, 308

U.S. 343, 352 (1939)). However, even
when a state statute appears
"appropriate," if another relevant
federal statute exists that siesexs
reflects the interests Congress intended

to protect under the federal statute in

30

question, we must apply it.®?

Johnson v. Railway Express Agency, supra

at 462.

With this directive in mind, we
hold that the two-year limitations
period expressed in section 153 First
(r) applies to actions at law brought to
review adjustment board decisions made

in the airline industry. See Gordon v.

Eastern Airlines, Inc., 268 F. Supp.

210, 212-13 (W.D.Va. 1967). But see

Richey v. Hawaiian Airlines, Inc., 533

2 In United Parcel, the Court declined
to consider an argument raised in an
amicus brief concerning the application
of a relevant federal statute of
limitations because it was not raised
in the lower courts. The majority
opinion in United Parcel dealt only with
the limited issue of which state
limitations period should be borrowed,
not the propriety of such borrowing.
See United Parcel, supra at 60 n. 2.
For a detailed discussion of this
question as it applies to section 301(a)
of the Labor Management Relations Act,
see United Parcel, id. at 65-71
(Stewart, J., concurring).

31

F, Supp. 310, 313 (M.D.Ga. 1982); Hafer

v. Air Line Pilot's Ass'n Int'l, 525 F.

Supp. 874, 877 (D. Hawaii 1981), aff'd,
698 F.2d 1230 (9th Cir. 1983). Although
the Railway Labor Act's express purpose
of settling disputes in the airline
industry in a prompt and orderly manner
would be served by applying the Colorado
ninety-day statute, the refusal to apply
section 153 First (r) would reject the
specific policy decision made by
Congress after it had viewed the
competing interests involved. Congress
determined two years as an appropriate
period for seeking judicial review of
railroad adjustment board awards in
light of the national interests in
prompt and orderly resolutions, and an
employee's interest in setting aside

what he feels is an improper award. Cf.

32

United Parcel, supra at 70 (Stewart, J.,

concurring).

After studying the entire Railway
Labor Act® and its legislative
history, it is clear that Congress
intended the exception of section 153
from air carriers to be temporary. The
"initial omission of § 153 in 1936 was
merely to postpone the establishment of ©
a National Air Transport Adjustment
Baord while the airlines industry grew.
It was not intended to provide an
interim period of confusion and chaos."

Gordon, supra at 213. See also Int'l

Ass'n of Machinists v. Central Airlines,

Inc., 372 U.S. 682, 685-90 (1963), for a

6 Generally, the intent of the Act is
to minimize interruption of the rail and
air transportation services of the
nation caused by strikes and labor
disputes, whether minor or major.
Gordon v. Eastern Airlines, Inc., 268
F. Supp. 210, 212 (W.D.Va. 1967); 45
U.S.C. § 15la (1976).

33

discussion of the history and intent of
the Railway Labor Act. Thus, the
interests balanced by Congress when it
enacted section 153 First (r) are
identical to those which would apply to
the now firmly-established airline
industry. Therefore, by applying
section 153 First (r) to actions
involving air carriers, we would be
assenting to all mandates and concerns:
to enforce the intent and purpose of the
entire Railway Labor Act, to establish
the needed uniformity in federal
procedural law for similar claims,’

and to apply a “relevant federal

7 See United Parcel, supra at 70
(Stewart, J., concurring) (quoting Auto

Workers v. Hoosier Cardinal Corp., 383

U.S. 696, 702 (1966)). Because the bulk
of the Railway Labor Act pertains to air
carriers, to apply different state laws
regarding limitations periods to similar
actions under the Act would result in
“confusion and chaos."

34

statute” in the absence of a limitations
period expressed by Congress. The
limitations period expressed in section
153 First (r) clearly "fit[(s]) hand in
glove" with an action brought before an
airline adjustment board under the

Railway Labor Act. See United Parcei,

supra at 64.

II.

We must next determine whether
Barnett filed for judicial review within
the time constraints of section 153
First (r). Section 153 First (r)
provides:

All actions at law based
upon the provisions of this
section shall be begun within
two years from the time the
cause of action accrues under
the award of the division of
the Adjustment Board, and not
after. (Emphasis added.)

The dispositive question,

therefore, is at what time the cause of

35

action "accrues." Because Barnett's
action was filed essentially to review

the Board's decision, see supra note 2,

we hold that his action accrued the date

that decision was rendered.® Gatlin

v. Missouri Pacific R.R. Co., 631 F.2d

S51, 5354-555 (8th Cir. 2980). On
September 7, 1978, the Board rendered

its decision concerning Barnett, which

8 Barnett contends that the Colorado
tolling rules, which apply to this
cause, require the word "accrued" to be
equated with the "rule of discovery."
Aprellant's Opening Brief at 18-19.
Thus, Barnett urges us to hold that his
cause accrued when he received the
letter of the Board's decision --
"several days" after October 13, 1980.
We disagree. Because we have applied
section 153 First (r) to this action,
the Colorado tolling and accrual rules
are inapplicabie. Barnett is asserting
rights based on federal law and, thus,
we are presented with a federal question.
See Gatling v. Missouri Racific R-.R.Co.,
631 F.2d 551,554 (8th Cir. 1980) (citing
Vaca v. Sipes, 386 U.S. 171, 177 (1967);
Steele v. Louisvilie & Nashville
RatsGOse 285 Uebs LOSZs £83° ECD
(1944)).

36

was final. See 45 U.S.C. §§ 153 First
(m) and 184 (1976). Pursuant to section
153 First (r), Barnett had two years
from that date to bring an action at law
in federal district court. Because he
filed his action for review on October
14, 1980, Barnett's action is untimely
and was, thus, properly dismissed by the
district court.

In sum, we reverse the district
court's finding that the Colorado
ninety-day statute of limitations to
vacate anarbitration award, but we

affirm the court's finding that Barnett

37

failed to file timely his action at

law.?

REVERSED in part and AFFIRMED in

part.

9 In rendering this opinion, we need
not address the question whether the
district court may review this final and
binding decision of the Baord. We will
note, generally, however, that the scope
of review by a federal court of a
decision by an airline system board of
adjustment is extremely narrow. See,
e.g., Hall v. Eastern Airlines, Inc.,
511 F.2d 663, 663-664 (5th Cir. 1975)
(citing Gunther v. San Diego & Arizona

Eastern R.R. Co., 382 U.S. 257, 263
(1965)); Union Pacific R.R. Co. v.

Sheehan, 439 U.S. 89, 93-95 (1978),
reh'g denied, 439 U.S. 1135 (1979)
(railroad adjustment boards).

38

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
No. 82-1195
FRANK E. BARNETT,
Plaintiff-Appellant,
Vv.
UNITED AIR LINES, INC., et al.,
Defendants-Appellees.
Opinion filed June 21, 1984
The court does hereby grant
appellant's petition for rehearing,
recall the mandate, withdraw the opinion

in Barnett v. United Air Lines, Inc.,

729 F.2d 693 (10th Cir. 1984), vacate
the judgment, and render this Opinion on
Rehearing in lieu thereof.

Plaintiff Frank E. Barnett appeals
from an order of the district court (1)
granting Defendant-Appellee United
Airlines, Inc.'s (United) motion to

dismiss and ( 2) granting

39

Defendant-Appellee Association of Flight
Attendants' (AFA) motion for summary
judgment, on the grounds that Barnett's
claims are barred by a Colorado
ninety-day statute of limitations.
United is an air carrier subject to the
provisions of the Railway Labor Act

(RLA}, 45 8.8.6. 8S 232 8S Bee,

(1976).1 AFA is a labor
Organization representing flight
attendants, such as Barnett, employed by
United. In his amended complaint,
Barnett alleges that United violated his
contractual right under the Collective
Bargaining Agreement between United and
AFA, and that AFA breached its duty to

him of fair representation. Barnett

1 air carriers, however, are expressly
excepted from the application of § 3, 45
U.S.C. § 153. See §§ 201 and 202, 45
U.S.C. §§ 181 (Supp. V 1981) and 182
(1976).

40

argues that United improperly adjusted
his seniority status in violation of the
Collective Bargaining Agreement.
Further, he claims that AFA
"demonstrated bad faith and acted
arbitrarily and capriciously by failing
to process [his] grievance, by failing
to furnish proper representation to
[him] at the arbitration hearing, and by
failing to advise the arbitrator of
their own practice of interpreting the
collective bargaining agreement to
afford seniority credit for time served
in temporary inflight service
Supervision estates." Ras’ VOLsa &
(Amended Complaint) at 12.

The Collective Bargaining Agreement
between United and AFA controls pay
rates, rules, and working conditions for
United flight attendants. Further, the

Agreement estabished an Arbitration

41

Board (System Board of Adjustment)
pursuant to § 204 of the RLA, 45 U.S.C.
§ 184 (1976). This board is authorized
to render final, binding decisions on
grievance disputes between United and

its employees.

Barnett filed a grievance pursuant
to the Agreement based upon his
contention that United improperly
adjusted his szniority status. The
Board denied Barnett's grievance ina
decision dated September 7, 1978, a
decision of which Barnett was first
notified by a letter dated October 13,
1978, which he received "several days
later." R., Vol. I (Amended Complaint)
at id. On October 14, 1980, Barnett
filed the present action in federal
district court where the court dismissed

it based on United Parcel Service, Inc.

v. Mitchell, 451 U.S. 56 (1981). The

42

Te ee

district court found that the applicable
Statute of limitations was Colo. Rev.
Stat. § 13-22-214(2) (Supp. 1982), which
establishes a ninety-day limitation
period for an action brought to vacate
an arbitration award. The district

court found Mitchell controlling

apparently because Barnett styled his
Suit in a manner in which he requested
the award of the Board to be set aside
(see R., Vol. I (Amended Complaint) at
13), and a successful suit would have
effectively vacated the award. See R.,

Vol. II at 2-4; United Parcel Service,

Inc. v. Mitchell, supra at 6l.

The issues on appeal are (1)
whether the district court erred in
applying the ninety-day Colorado statute
of limitations and (2) whether Barnett
timely filed this action under the

applicable statute. We hold that the

43

district court erred in borrowing the
Colorado statute; § 10(b) of the
National Labor Relations Act (NLRA), 29
U.S.C. § 160(b) (1982) (six months), is
the appropriate statute of limitations
for this cause. We further hoid,
however, that Barnett failed to file
this action within the requisite
Six-month limitations period. We will
therefore affirm the dismissal of this
action.
Le

Background

Because the instant case arose
under the RLA, a brief explanation of
the Act and Barnett's claim will be
helpful. By enacting the RLA, Congress
intended to provide a separate and
distinct statutory scheme for labor
disputes arising in two vital national

industries, i.e., the rail industry and

44

the air carrier industry. Labor
disputes between parties in other
industries are governed by the NLRA.
Generally, the RLA recognizes two types
of disputes: (1) "major" disputes,
which relate to the formation of
collective bargaining agreements or
efforts to secure them; and (2) "minor"
disputes, which involve the
interpretation of a collective
wenesiaiie agreement, the existence of

which is not in dispute. See Elgin, J.

& E.R. Co. v. Burley, 325 U.S. 71l, 723

(1945); Transport Workers Union of

America v. American Airlines, Inc., 413

F.2d 746, 748 (10th Cir. 1969); De La

Rosa Sanchez v. Eastern Airlines, Inc.,

574 F.2d 29, 31 (lst Cir. 1978). 45
U.S.C. § 184 mandates that air carriers
and their employees, acting through

their representatives, establish system

45

boards of adjustment to resolve the

minor disputes. Machinists v. Central

Airlines, supra. See also Transport

Workers v. American Airlines, supra.

When an aggrieved party appeals an
adjustment board decision to federal
district court, the findings and order
of the board are conclusive against the
parties unless (1) the board failed to
comply with the requirements of the RLA,
(2) the board lacked jurisdiction, or
(3) there was fraud or corruption by a
member of the board. 45 U.S.C. §§
153(q) and 184 (1976).

It is well established, therefore,
that decisions by adjustment boards
which merely interpret collective
bargaining agreements are conclusive and
binding on the parties; no federal or
state court has jurisdiction to review

such a determination by an adjustment

46

board. See, e.g., Union Pacific R.R.

Co. v. Sheehan, 439 U.S. 89, 94 (1978),

reh'gq denied, 439 U.S. 1135 (1979); Air

Line Pilots Ass'n v. Northwest Airlines,

Inc., 627 F.2d 272, 275 (D.C.Cir. 1980);

De La RoSa Sanchez v. Eastern Airlines,

Supra at 32. Because Barnett claims
that United beached the Collective
Bargaining Agreement regarding the
seniority status provisions, the Board's
decision merely involved its own
interpretation of the Agreement. This
is precisely the type of dispute
Congress contemplated to be conclusively
resolved in a prompt manner by an

adjustment board. See Union Pacific

R.R. Co. v. Sheehan, supra at 94;

Brotherhood of Locomotive Fireman and

Enginemen v. Central of Georgia Ry. Co.,

199 F.2d 384, 385 (5th Cir. 1952), cert.
denied, 345 U.S. 908 (1953). Hence, the

47

district court would have been without
jurisdiction to review that claim
standing alone.

However, by styling his suit as a
hybrid involving both a contract and a
fair representation claim, barnett is
potentially able to challenge the
propriety of the Board's decision. If
an employee can estabish that his union
breached its implied duty of fair

representation, then even a binding

decision of the board can be set aside
if the breach seriously undermined the

integrity of the arbitral process.

Hines v. Anchor Motor Freight, Inc.,

424 U.S. 554, 567 (1976); Del Casal v.

Eastern Airlines, Inc., 634 F.2d 295,

299 (5th Cir. 1981), cert. denied, 454

U.S. 892 (1981). Thus, if Barnett could
show that AFA's alleged breach reached

this level, the district court could

48

also entertain jurisdiction on the

breach of contract claim.2 See Del

Casal v. Eastern Airlines, supra at

298-300.
II.

Statute of Limitations:

Applicability of DelCostello

v. International Brotherhood

of Teamsters

Inasmuch as we have established
that Barnett has a potentially valid
claim on the hybrid nature of his
action, we must now determine the
appropriate limitations period within
which that claim must be brought. In

the instant case, there is no express

2 Of course, just as with the district
court, it is not necessary for us to
decide the merits of Barnett's claims at
this preliminary stage. We discuss this
jurisdictional questicn only for the
limited purpose of showing the potential
viability of a hybrid claim such as that
presented by Barnett.

49

Statute of limitations provided in the
RLA for suits in the air carrier
industry brought by an employee either
against his employer for breach of the
collective bargaining agreement or
against his union for breach of the duty
of the duty of fair representation.
First, it is clear from the discussion
above that a sole claim involving an
alleged breach of a collective
bargaining agreement may not be
maintained in federal court. Hence,
there is obviously no express
limitations period for such a claim.
Similarly, Barnett's claim against AFA
is not controlled by an express
limitations period. Although it is well
established that an action for breach of
duty of fair representation between
parties subject to the RLA is implied

from 45 U.S.C. §§ 151 and 152, see,

50

eg., Vaca v. Sipes, 386 U.S. 171, 177

(1967); Steele v. Louisville and

Nashville R.R. Co., 323 U.S. 192, 199

and 202-03. (1944), these sections do not
provide expressly for a limitations
period. Hence, we are required to
borrow an appropriate statute of
limitations.

During the pendency of this appeal,
the Supreme Court decided the case of

DelCostello v. International Brotherhood

of Teamsters, U.S. » aes 8 C8.

2281 (1983). The Court in DelCostello

held that where an employee brought an
action under the National Labor

Relations Act (NLRA), 29 U.S.C. §§ 15l,

1)

t seg., against both his employer for

breach of the collective bargaining ~
agreement (19 U.S.C. § 185) and his
union for breach of the duty of fair

representation, the suit was governed by

51

the six-month period of limitations
mandated in § 10(b) of the NLRA, 29
U.S.C. § 160(b). Although the instant
case does not arise under the NLRA, we
nonetheless hold that on the particular
facts of this case, where Barnett made
claims against his employer and his

union similar to those in DelCostello,

the rationale of DelCostello requires

the application of the six-month period
under § 10(b) of the NLRA to Barnett's
cause of action.

The Supreme Court has repeatedly
held that when Congress has not
expressly provided a statute of
limitations governing federal statutory
actions, a court must apply the most
""appropriate state statute of

limitations.'" United Parcel Service,

Inc. v, Mitchell, supra at 60 (quoting

Johnson v. Railway Express Agency, Inc.,

52

421 U.S. 454, 462 (1975) and Auto

Workers v. Hoosier Cardinal Corp., 383

U.S. 696, 704-05 (1966)). This has been
the approach followed by some courts
when determining a limitations period
for a duty of fair representation claim

under the RLA. See Price v. Southern

Pacific Transportation Co., 586 F.2d

ae ern ows teem Cir. 1978);

Brotherhood of Locomotive Firemen and

Enginemen v. Mitchell, 190 F.2d 308, 313

(5th Cir. 1951); Gainey v. Brotherhood

of Railway and Steamship Clerks, 275 F.

Supp. 292, 306 (E.D.Pa. 1967), aff'd on

other grounds, 406 F.2d 744 (3rd Cir.

1968), cert. denied, 394 U.S. 998 (1969).

However, based on the Supreme Court's

recent directives in DelCostello and

Occidential Life Ins. Co. v. EEOC, 432

U.S. 355 91977), we decline to borrow an

53

appropriate state limitations period in
the instant case.

In Occidental, the Court noted that

a state statute of limitations will not
be “mechanically applied" merely because
the federal statute fails to provide
expressly for a limitations period. Id.
at FO? The Court emphasized that
""Tajlthough state law is our primary
guide in this area, it is not, to be
sure, our exclusive guide.'** Id.

(quoting Johnson v. Railway Express

Agency, supra at 465 ). For example, we

must not borrow a state limitations
period if its application would be
inconsistent with federal policy.

Occidental, supra (citing Johnson v.

RAilway Express Agency, supra; Auto

Workers v. Hoosier Cardinal Corp., supra

at 701; and Bd. of County Comm'rs v.

United States, 308 U.S. 343, 352 (1939)).

54

Even when a state statute appears
"appropriate," if another relevant

federal statute exits that clearly

reflects the interests Congress intended
to protect under the federal statute in
question, we must apply rt?

Johnson v. Railway Express Agency, supra

at 462.

The Court in DelCostello reaffirmed

its holding in Occidental that a court

must borrow express limitations periods
from related federal statutes when state
statutes may be unsatisfactory for the

enforcement of federal law. A083 B.C.

3 In Mitchell, the Court declined to
consider an argument raised in an amicus
brief concerning the application of a
relevant federal statute of limitations
(§ 10(b) of the NLRA) because it was not
raised at any stage of the proceedings.
The majority opinion in Mitchell dealt
only with the limited issue of which
state limitations period should be
borrowed, not the propriety of such
borrowing. See 451 U.S. at 60 n.2.

55

at 2289. The Court held that the
six-month statute of limitations
expressly provided for by § 10(b) of the
NLRA should apply to a hybrid beach of
contract/duty of fair representation
claim brought pursuant to that Act; a
breach of the implied duty of fair
representation is most analogous to an
"unfair labor practice," which is
actionable before the National Labor
Relations Board under § 10 of the NLRA.
id. at 2293. The Court reasoned that
the § 10(b) limitations period reflects
the competing interests at stake in such
a hybrid claim brought under the NLRA.

In § 10(b) of the NLRA,
Congress established a
limitations period attuned to
what it viewed as the proper
balance between the national
interests in stable bargaining
relationships and finality of
private settlements, and an

employee's interest in setting
aside what he views as an

56

unjust settlement under the
collective-bargaining system.

Id. at 2294 (quoting United Parcel

Service, Inc. v. Mitchell, supra at 70

(Stewart J., concurring)).
We find that the identical
competing interests recognized in

DelCostello are present in the instant

action brought under the RLA. Section
10(b) of the NLRA is similarly relevant
to a hybrid breach of contract/duty of
fair representation claim brought under
the RLA; thus, the reasoning and

analysis of DelCostello control in the

instant case. An employee like Barnett,
therefore, who files such a hybrid claim
under the RLA in federal district court,

must do so within the six-month period

57

provided in § 10(b) of the NLRA.#4

Welyczo v. U.S. Air, Inc., No. 83-7976

(2nd Cir. 1984).
os

Timeliness of Filing

We must next determine whether
Barnett filed this action within the
time contraints of § 10(b). Because
Barnett brought his action essentially
to review the propriety of the Board's

decision based on the alleged unfair

4 In rendering this decision, we
express no opinion about the proper
limitations period to be applied to
other possible "hybrid" claims brought
by an employee subject to the RLA. Our
decision is limited to the particular
context of "hybrid breach of contract/
duty of fair representation" claims made
by an employee pursuant to the RLA. The
reasoning applied by the Court in
DelCostello regarding the appropriate
limitations period to borrow when two
independantly viable claims are combined
might militate against borrowing the §
10(b) period in another type of “hybrid”
Situation brought under the RLA. See
103 S.Ct. at 2292.

58

representation by AFA at the hearing, we
hold that he was required to file the
action within six months of the date the
Board rendered its decision. Cf.

Butler v. Local Union 823, Internat'l

Brotherhood of Teamsters, 514 F.2d 442,

449-50 (8th Cir. 1975), cert. denied,

423 U.S. 924 (1975). Because the Board
rendered its decision on September 7,
1978, Barnett was required to file the
instant action by March 7, 1979.
Barnett filed the action, however, on
October 14, 1980, clearly beyond the
six-month limitations period. Thus, the
district court properly dismissed
Barnett's complaint. ©

REVERSED in part and AFFIRMED in

part.

59

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
No. 82-1195
FRANK E. BARNETT,
Plaintiff-Appellant,
Vv.
UNITED AIRLINES, INC., et al.,
Defendants-Appellees.
July 10, 1984
This matter comes on for
consideration of appellant's petition
for rehearing filed in the captioned
cause.
Upon consideration whereof,
appellant's petition for rehearing is
denied.

/s/ HOWARD K. PHILLIPS, Clerk.

60

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3216%3A2. Public record. Not legal advice.