Petition — Brain v. Roadway Express, Inc.

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E 83-1034 Oc Supreme Court, Us

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

GUY BRAIN, et al.

Petitioners

vs.

ROADWAY EXPRESS, INC.., et al.

Respondents

THEODORE E. MECKLER

BENJAMIN B. SHEERER

614 Superior Ave. West

611 Rockefeller Bidg.

Cleveland, Ohio 44113

(216) 241-5151

Attorneys for Petitioners

a Sy a ee

SUPREME COURT of the UNITED STATES

Term October, 1983

GUY BRAIN, et al., Petitioners

ve.

ROADWAY EXPRESS, INC., et. al.

Respondents

PETITION FOR A&A WRIT QF CERTIORARI

Te the United Stetes Court of Appesis

Eor the Sixth Circuit

To the Honorable Chief Justice and the

Honorable Associate Justices of the Su-

preme Court of the United States:

Petitioners Guy Brain, et. al. pray

that a writ of certiorari issue to review

the judgment of the United Stetes Court

of Appeals for the Sixth Circuit, entered

on Septeraber 23, 1983 Case No. 82-3078 on

the docket of that Court.

QUESTIONS PRESENTED FOR REVIEW

I. Should this Court’s decision in De]

Cestelio y interestionas Bretberbess ef

Teessters, 462 pau 03 sCt. 22861

(1983) be given gi or retro-

ective effect?

II. Should the eppliceble stetute of

limitetions period be tolled while the

enployees attespted to exheust their

internel union remedies pricr to this

Court’s decision in Cleyten ¥ @utesebile

III. Should a4 grievance adjustment which

is not made final under the terms of the

collective bargaining agreement or a

grievance decision rendered by a griev-

ence mechanism lacking in contractual

jurisdiction be accorded application of

the doctrine of arbitral finality?

PARTIES TO THE PROCEEDING

The perties to this proceeding are

Petitioners: Guy W. Brain, Joseph Vasko,

Dow Dempsey, Donald Bassett, Tom Maki,

George Aloshen, George Scina, Charlies

Kelvas, William Whitesides, Paul W.

Matty, Leslie Montgomery, Randolph

Fuller, Frank Selzer, Bryan McGown, Neil

Kinser, Mackinley Capers, George Bobish,

and Carmel White ‘(who will hereinafter be

referred to collectively as “Petition-

ers”); and Respondents: Roadway Express,

Inc. Chereinafter, “Roadway"), Truck Dri-

vers Local 407, International Brotherhood

of Teamsters, Chauffeurs, Warehousenen

and Helpers of America (hereinafter,

“Local 407"), Joint Council 41, Interne-

tional Brotherhood of Teamsters, Chauf-

feurs, Warehousemen and Helpers of Amer-

ice (hereinafter, “Joint Council 41”),

Teamsters Nationel Freight, Industry Neg-

otiating Committee (‘hereinafter “Nationel

Comnittee™), Freight Division Centrel

Conference of Teensters (hereinefter

“C.C.T.") and Joint Stete Cartege Commit-

tee thereinefter, “Joint Committee”).

(The lest five (5) respondents will be

referred to collectively es the “Union”

or “Union Respondents” .)

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

PARTIES TO THE PROCEEDING

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTIONAL GROUNDS

STATUTES WHICH THE CASE INVOLVES

STATEMENT OF THE CASE

ARGUMENT: REASONS RELIED ON FOR

ALLOWANCE OF THE WRIT

I. THE COURT OF APPEALS IN-

CORRECTLY APPLIED THE RULE OF

DEL COSTELLO RETROACTIVELY

TO THIS CASE.

Il. THE STATUTE OF LIMITATIONS

WAS TOLLED BY PETITIONERS’ AT-

TEMPT TO EXHAUST THEIR INTERNAL

UNION REMEDIES.

Ill. THE DOCTRICE OF ARBITRAL

FINALITY SHOULD NOT HAVE BEEN

APPLIED TO THE GRIEVANCE DEC1-

SION INVOLVED, HEREIN.

CONCLUSION

AFFIDAVIT OF SERVICE

iti

———

TABLE OF CONTENTS CONTINUED

ITEM PAGE

APPENDIX

APPENDIX A - ORDER OF U.S. COURT A-1

OF APPEALS FOR THE SIXTH CIRCUIT

DATED SEPTEMBER 23, 1983

APPENDIX B - MEMORANDUM AND B-1

OPINION OF U.S. DISTRICT COURT

DATED DECEMBER 3, 1981

APPENDIX C - ORDER OF U.S. DIS- C-1

TRICT COURT DATED December 3,

1981

APPENDIX D - UNREPORTED OPINION D-1

OF U.S. COURT OF APPEALS FOR THE

SIXTH CIRCUIT IN La BOND V.

HCLEAN TRUCKING CQ., CASE NO.

82-1576, DATED AUGUST 15, 1983

APPENDIX E - RELEVANT EXCERPTS E-1

FROM THE NATIONAL MASTER FREIGHT

AGREEMENT AND CENTRAL STATES

AREA LOCAL CARTAGE SUPPLEMENTAL

AGREEMENT

TABLE OF AUTHORITIES

Allen v Amalgamated Transit Union 14

415 F.Supp 662 ‘(E.D. Mo., 1976);

eff’d in pertinent part and remanded

in part, 554 F.2d 876 (8th Cir., 1976)

434 US 891

Allen vy McWilliams Electricai Co. 14

494 F.Supp 43 (N.D. Ill., 1980)

Badon v G.M.C., 679 F.2d 936 7, 135,

(6th Cir., 1982) 16, 27

Baldwin v Piano & Organ vs. Int’. 10

Chemical Workers Union, 564 F.

Supp 1262 (N.D. Miss., 1983)

Bigbie vy Local 142, 1.B.T., 6

S30 F.Supp 402 (N.D. Ill. 1981)

Bahersh v Eltra Corp., 20

394 F.2d 502 (6th Cir., 1968)

Buckholtz v Swift & Co., 13

62 FRD 581 (D. Minn., 1973)

Butier v inti Brthrhd of Teamsters i4

etc., 514 F.2d 442 (8th Cir.,

1975) cert.den 423 US 924

Carpenters Locel 1020 vy ENC Corp. 8

658 F.2d 1285 (9th Cir., 1981)

Cerpenters & Millwrights Hith. Ben. 13

Trust Eund vy Domestic Insulstion,

387 F.Supp 144 (D.Colo., 1975)

TABLE OF AUTHORITIES CONT’D

i hiss iodnats PAGE _NOS.

Chevron Oil Co. v Huson 12, 13, 14,

404 US 97 (1971) i. if). 2

Christianson v Pioneer Sand & Gravel 7

Co., 681 F.2d 577 (9th Cir., 1982)

Clayton v Automobile Workers 1, 6, 22,

451 US 679 (1981) 22, 23

Coleman v Kroger Co., 399 F. 13

Supp. 724 (D.Va., 1975)

Collins vy American Freight Systems, 38

Inc, 559 F.Supp 1032 (W.D. Md., 1983)

D* Andree vy American Postal Workers s

Union, 700 F.2d 335 ‘(oth Cir., 1982

DeArroyo vy Sindicato de Treba)sdores 14

Packinghouse, 425 F2d 261 ‘list Cir.,

1970) cert.den 400 US 877, reh.den

400 US 953, cert.den 410 877, reh-

gen 410 US 9326

Del Costello v Iint’i Brthrhd ts 2640

of Teamsters, __US__, 103 8-11, 13-16

S.Ct. (1983) 2281 23, 23. 29:

Del Costello v Int’1l Brthrhd of Tean- 7

sters, 679 F.2d 879 (4th Cir., 1982)

Dent v U.S. Postel Service 7

538 F.Supp 1079 (S.D. Fla., 1982)

De Vries v Interstate, 501 F. 13

Supp 105 (N.D. Oh., 1977) aff'd

620 F.2d 302 (6th Cir., 1980)

TABLE OF AUTHORITIES CONT’D

Dill v Wood, Shovel & Tool Co.

__F.Supp__, 8O LRRM 2445 (S.D. Oh. 1972)

Edie v Brundage Co. 546 F.Supp.

837 (W.D. Mich., 1982)

Edwards v Teamsters Local 36, __F.2d

114 LRRM 3227 (Sth Cir., 1983)

Edwards v U.S. Postal Service, 67%

F.2d 1276 ‘(Sth Cir., 1982)

Engelsberg vy Transcom Lines, Inc.

530 F.Supp 628 (W.D. Wash., 1982)

Febien vy Freight Drivers & Hlprs Lo-

cal 557, 448 F.Supp 835 (D.Md., 1978)

Falsetti v United Mine Workers,

355 F.2d 658 (3rd Cir., 1966)

Fleming v Chrysler Corp., S75 F.2d

1187 (6th Cir., 1978)

Flowers v Local 2602, USWA,

621 F.2d 87 (2d Cir., 1982)

Fox v Eaton Corp., 614 F.2d 716 18,

(6th Cir., 1980)

Gellagher vy Chrysler Corp.,

613 F.2d 167 (6th Cir., 1980)

Goodman vy City Products Corp.

425 F.2d 702 (6th Cir., 1970)

vit

TABLE OF AUTHORITIES CONT’D

TTEM__ ~PAGE NOS.

Grant v Mulvihill Bros. Motor Srv...

Inc. 428 F.Supp 45 (D. Ill., 1976)

Gray vy Int’l Agssn.,

416 F.2d 313 (6th Cir., 1969)

Hend v Int’l Chemical Workers Union

681 F.2d 1308 (1ith Cir., 1982) 8,

Hardesty v Essex Group, inc.,

550 F.Supp. 752 (N.D. Ind., 1982)

Harris vy Walgreen Distribution Ctr.

456 F.2d 588 (6th Cir., 1972)

Hines v Anchor Motor Freight. Inc.

424 US 554 (1976)

Hudson vy Teamsters Local Union 957

S36 F.Supp. 1138 (S.D. Oh., 1982)

Imel v Zohn Mfg. Co., 481 F.2d 181

(10th Cir., 1973) cer.den 414 US 915

(1974)

int’l Union. U.A.W. vy Hoosier Car-

dinel Corp., 383 US 697 (1966)

Kaufman & Broad Home Systems, inc.

vy int’l Brthrhd. of Firemen & Qilers

607 F.2d 1104 (Sth Cir., 1979)

King v Corn Products, 538 F.Supp.

569 (N.D. Ill., 1982)

La Bond vy McLean Trucking Co., iv,

Case No. 82-1576, 8/15/83 (6th Cir)

unreported

vtit

10,

TABLE OF AYTHORITIES CONT’ Db

La Mere v Inland Diy of Gen’l Motors 8

Corp. SSO F.Supp 1005 (S.D. Oh. 1982)

Lake v Martin Meriette Corp., S38 7

F.Supp. 725 (M.D. Fla., 1982)

Larry v Penn Truck Aids, __F.Supp__ 8

112 LRRM 2949 (E.D. Pa., 1982)

Lawson yv Truck Drivers Local Union &

100, 698 F.2d 250 (6th Cir., 1983)

Leske v University of Cancinneti, 16

60S F.2d 255 (6th Cir., 1979)

Leech v U-S: Postel Service, 8

698 F.2d 250 (6th Cir., 1983)

Meauget v Kaiser, 546 F.Supp. 486

(S.D. Oh., 1982)

NcFarland v 1.B.T., 535 F.Supp. 7

970 (N.D. Tex., 1962)

McGovern v 1.B.T. Local 773 20

447 F.Supp. 368 (E.D. Pa., 1978)

Mikel v Wisconsin Bridge & iron Co. 8

359 F.Supp. 444 (D. Wis., 1973)

Newton v 1.U.8., 684 F.2d 401 7, 8

(6th Cir., 1982)

Northwest Airlines. ing. ¥ #4riines 26

Pilots Asen.. int‘is- 590 F.2a 1046,

1050 (D.C. Cir., 1976)

TABLE OF AUTHORITIES CONT*D

ITEM PAGE NOS.

Peree v United Auto Workers. 8

Local 3S, __F.Supp__, 113 LRRM

2080 (N.D. Ind., 1982)

Pitts v Erito-Lay. Ins: 8, 16

700 F.2d 330 (6th Cir., 1983)

Price vy Southern Pacific Trnsprtn Co i4

586 F.2d 570 (9th Cir., 1978)

Pullen v Gen’1 Motors Corp., 444 F. 20

Supp. 87 (D.C. Md., 1978)

Relitord v kastern Coal Corp.:, 13

260 F.2d 447 (6th Cir., 1958)

cert.den 359 US 958 (1959)

Robbins vy Newman, 481 F.Supp. 1241 14

(E.D. Mose., 1979)

Ruzicka v General Motors Corp. 20

523 F.2d 306 (6th Cir., 1975)

Sanderson yv Ford Motor Co. 14

423 F.2d 102 (Sth Cir., 1973)

Seandovel v Armour Co., 429 F.2d 1234 13

(2d Cir., 1970) cert.den 401 US 1009

Schrese vy Cospiete Aute Ireneat _.F- 20

Supp__, 101 LRRM 2178 (S.D. Mich., 1979)

Smert vy Elida, S@O F.2d 215 (6th 13, 15

Cir., 1978) cert.den 440 US 958 (19768)

Sterck vy int-. Brthbehd ef Teenetere 10

712 F.2d 1194 (7th Cir., 1983)

TABLE OF AUTHORITIES CONT*D

ITEM PAGE NOS.

Talley v U.S. Postal Service 7

$32 F.Supp 786 (D. Minn., 1982)

United Parcel Service vy Mitchell 6-10,

457 US 56 (1981) 14-15,

22, 29

United Steelworkers vy American 25

Mig. Co., 363 US S64 (1960)

UNW v Barnes & Tucker Co., Sel 27

F.2d 1093 (3rd Cir., 1977)

U.S.W.sA. vy Warrior & Gulf Nevigation 25

Co., 363 US 574 (1960)

Vacs yv Sires 6, 7, 18

386 US 171 (1967) 23, 24

Wechovise Bank & Trust yv Nat’, 14

Student Mrktg., 650 F.2d 342, 347

(D.C. Cir., 1980) cer,.den 101

S.Ct. 3098

Werren vy int‘. Brthrhd of Teamsters. 14

etc., S44 F.2d 334 (Sth Cir., 1976)

Weshbingten vy Nerthiend Nerane Co. 7

Inc. 681 F.2d 582 (9th Cir., 1962)

Weber vy Keiser Siveinus & Chesicei <2

Core.- S63 F.2a 2ie, 230 (Sth Cir.,

1977)

Wilkey v Meizer. ingc., 550 F.Supp. 7

411 (W.b. Mich., 1962)

TABLE QF AUTHORITIES CONT’D

ITEM PAGE NOS.

Willetts v Ford Motor Co., 583 F. 20

2d 8352 (6th Cir., 1978)

Winter vy Teamsters Local 639, 20

S69 F.2d 146 (D.C. Cire., 1977)

STATUTES

28 U.S.C. Sec. 1254(1) v

28 U.S.C. See. 2101¢e) Vv

29 U.S.C. Sec. 160¢(b) (Sec.10(b), vii, ¥

N.L.R.A.) 1u, 14

29 U.S.C. Sec. 18S(a)-(c) vi, 4, 6

(Sec. 301 of L.M.R.A.) 22, 24

RULES

RULE 17.1, U.S. Supreme Court 11

OPINIONS BELOW

The order of the United Stetes Court

of Appeals for the Sixth Circuit is

reproduced at Appendix A. The Memorandum

Opinion of the United States District

Court is reproduced at Appendix 8B. The

Order of the United States District Court

is reproduced at Appendix C.

JURISDICTIONAL GROUNDS

° The decision sought to be reviewed

is that of the United States Court of

Appeals for the Sixth Circuit, filed

September 23, 1983. No rehearing trom

the Court of Appeals nor extension of

time in which to file this Petition have

been sought.

The statutory provisions conferring

jurisdiction on this Court to review the

decision are 28 USC Sec. 1254(1) and 28

USC Sec 2101 (c).

xiit

STATUTES WHICH THE CASE LNVOLVES

29 USC Sec. 1852 (Sec. 301 L.M.R.A-)

Suits by and against isabor organizations

(a) Venue, amount, and citizenship. Suits

for violation ot contracts between an

employer and a labor organization repre-

senting employees in an industry atftec-

ting commerce as defined in this Act, or

between any such labor organizations, may

be brought in any district court of the

United States having jurisdiction of the

parties, without respect to the amount in

controversy or without regard to the

citizenship of the parties.

(b) Responsibility for acts of agent -

Entity tor purposes of suit--Enforcement

of money judgments. Any labor organiza-

tion which represents employees in an

industry affecting commerce as defined in

this Act and any employer whose activi-

ties affect commerce as defined in this

Act shall be bound by the acts of its

agents. Any such labor organization may

sue or be sued as an entity and in behalz

of the employees whom it represents in

the courts of the United States. Any

money judgment against a labor organiza-

tion in a district court of the United

States shall be enforceable only against

the organization as an entity and against

its assets, and shall not be enforceable

against any individual member or his

assets.

actions and proceedings by or against

labor organizations in the district

courts of the United States, district

courts shall be deemed to have jurisdic-

xiv

tion of a labor organization (1) in the

dietrict in which such organization main-

teins its principal office, or (2) in any

district in which its duly authorized

otficers or agents are engaged in repre-

senting or acting for employee members.

(dd) Service ot Process. The service of

summons, subpena, or other legal process

of any court of the United States upon an

ofticer or agent ot a labor organization,

in his capacity as such, shall constitute

service upon the labor organization.

‘e> Determination of question of agency.

For the purposes of this section, in

determining whether any person is acting

as an “agent” of another person so as to

make such other person responsible tor

his acts, the question of whether the

specitic acts performed were actually

authorized or subsequently ratified shall

not be controlling.

23 U.S.C. Sec. 160(b) (Sec 10(b), NLRAI]:

--- (Db) Complaint and notice of hearing -

Answer - Court rules of evidence inappli-

cable. Whenever it is charged that any

person has engaged in or is engaging in

any such unfair labor practice, the

Board, or any agent or agency designated

by the Board for such purposes, shall

have power to issue and cause to be

served upon such person a complaint sta-

ting the charges in that respect, and

containing a notice of hearing before the

Board or a member thereot, or before a

designated agent or agency, ata place

therein fixed, not less that five days

after the serving of said complaint:

Provided, That no compleint shell issue

based upon any untair labor practice

eccurring more than six months prior to

the filing of the charge with the Board

and the service of a copy thereof upon

the person against whom such charge is

made, unless the person aggrieved thereby

was prevented from filing such charge by

reason of service in the armed forces, in

which event the six-month period shall be

computed from the day of his discharge.

Any such complaint may be amended by the

member, agent, or agency conducting the

hearing or the Board ir its discretion at

any time prior to the issuance of an

order based thereon. The person s0 com-

plained of shall have the right to file

an answer to the original or amended

complaint and to appear in person or

otherwise and give testimony at the place

and time fixed in the complaint. In the

discretion of the member, agent, or agen-

cy conducting the hearing or the Board,

any other person may be allowed to inter-

vene in the said proceeding and to pres-

ent testimony. Any such proceeding

ahell, seo far as practicable, be conduc-

ted in accordance with the rules of evi-

dence applicable in the diatrict courta

of the United States under the rules of

civil procedure for the district courts

of the United States, adopted by the

Supreme Court of the United States pur-

suant to the Act of June 19, 1934.

STATEMENT OF THE CASE

Petitioners were all dockworkers en-

ployed at the Cleveland Terminal of Re-

spondent, Roadway during 1978 and 1979.

All were also members of Respondent,

Local 407 and the International Brother-

hood of Teamsters, Chauffers, Warehouse-

men and Helpers of America. (Hereinafter,

“I. B. T.") Respondents, National Commit-

tee and C.C.T., as well as Roadway and

Local 407, were signatories to the Na-

tional Master Freight Agreement and the

Central States Area Local Cartage Supple-

mental Agreement ‘hereinafter the “NMFA”

or the “contract"). This is the collec-

tive bargaining agreement under which

Petitioners were employed.

Joint Council 41, is a labor organi-

zation created under the I.B.T. Consti-

tution which exercises authority over

member Local Unions, such as Local 407.

The Joint Committee, is a decision-making

entity created by the grievance machinery

of the NMFA. [1)

In the spring of 1978, Roadway began

to transfer work from its Cleveland ter-

minal to other terminals, particularly

ite new Copley Terminal. Roadway partial-

ly closed the Cleveland Terminal. Prior

to transferring said work, Roadway did

not seek or obtain the approval of the

appropriate change of operations coanmit-

tee as required by Article 8, Sec. 6 of

the NMFA.

Pursuant to Article 45 Section 1 of

the NMFA, grievances were filed challen-

ging Roadway’s transfer of work in May of

1978. The Joint Local Committee dead-

locked on these grievances (i.e. the

{1] Joint Committees are the major deci-

sion-making mechanism of the NMFA griev-

ance machinery. They are made up of equal

numbers of labor and management represen-

‘tatives. They make decisions, on griev-

ances brought before them by asaajority

vote.

second step of grievance procedure).

Subsequently, the Joint State Committee

deadlocked on the same grievances, (i.e.

the third step of grievance procedure).

The grievances were then scheduled

to be heard on September 22, 1978 by the

Joint Area Committee, (i.@. the fourth

atep of the grievance procedure). How-

ever, prior to actually reaching that

level, the grievances were withdrawn by

the Union.

Thereafter, the transfer of work by

Roadway continued and intensified. As a

result, Cleveland dockworkers, including

Petitioners, began to be laid off. A

second set of grievances were tiled by

the Union. They were again deadlocked by

the Joint Local Committee. On July 19,

19793, the Joint State Committee decided

the grievances in Roadway’s favor.

On November 15, 1979, Petitioners

filed internal union charges against four

(4) of their Union officials essentially

@lleging breaches of the duty of fair

representation. Petitioners conscien-

tiously processed those internel union

charges to the highest level of the

appellate procedures.

Petitioners filed suit on Deceaber

18, 1980 pursuant to Sec. 301 of the

Labor Management Relations Act (LMRA, 29

USC Sec 185), against all six (6) Respon-

dents. Petitioners alleged that Roadway

breached the relevant collective bar-

gaining agreement. Petitioners also al-

leged that the Union Respondents feiled

to represent them fairly and/or colluded

with the other Respondents to deprive

them of their rights under the NMFA.

Petitioners sought restoration of their

seniority benefits, back wages, fringe

benefits, and saoneteary relief for emo-

tional stress as relief against Roadway.

Petitioners sought punitive demeges, rea-

sonable attorneys fees and costs as

relief against the Union Respondents.

On August 17, 1981, all six (6) Re-

spondents filed Motions to Dismiss and/or

for Summary Judgment. All such a,otions

alleged that Petitioners’ action was

time-barred. Petitioners opposed said

motions.

The District Court rendered a Mermor-

andum of Opinion on December 3, 1981 and

issued an order pursuant thereto, which

granted all Respondents’ Motions for Sua-

mary Judgment and dismissed Petitioners’

case.

On September 23, 1983, the United

States Court of Appeals for the Sixth

Circuit issved its order and opinion

affirming the District Court’s dismissal.

It is this decision which Petitioners now

seek to bring before this Honorable Court

for its review.

ARGUMENT: REASONS RELIED ON FOR ALLOWANCE

OF THE WRIT

I. The Court of Appeals Incorrecty Ap-

plied the Rule of Del Costello Retro-

actively to This Case.

In the last few years this Court has

issued three decisions which impact upon

the question of what is the appropriate

limitations period to apply to a Vaca

suit 2] brought pursuant to Section 301

of the Labor Management Relations Act,

(L.M.R.A., 29 USC Sec. 185). The first

of these cases was United Parcel Services

v. Mitchell 457 US 56, 101 S Ct. 1559

(1981). The second was Clayton vy Auto-

mobile Workers, 451 US 679, (1981). 3)

The third was Del Costello vs. Interna-

tiona] Brotherhood of Teamsters, 462 US

103 S.Ct 2281 (1983).

{2] Vaca v Sipes, 386 U.S. 171 (1967)

(3] The impact of Clayton is less direct

but of particular significance in this

case. It is discussed more fully at

pp 18 to 24 of this petition.

In Mitchell this Court determined the

statute of limitations that is most anal-

ogous for a Vaca claim against an explo-

yer is the state statute of limitations

governing the vacation of arbitration aw-

ards. Mitchell led to a multitude of Dis-

trict and Appellate Court decisions on

[4]

the various questions it left unanswered.

[4] See e.g. Del Costello v International

Brotherhood of Teamsters 679 F2d 879 (4th

Circ, 1982); Flowers v. Local 2602, USWA,

621 F2d 87 ‘(2d Circ, 1982); Newton v.

I.U.E., 684 F. 2d 401 (6th Cir., 1982);

Lake y Martin Marietta Corp., 538 F.

Supp. 725 (M.D. Fla., 1982); Dent v. U.S.

Postal Service, S38 F.Supp. 1079 (S.D.,

Fla., 1982);King ys Corn Products, 538

F.Supp. S69 (N.D., Ill., 1982); Wilkey v

Meijer, Inc. SSO F.Supp 411 (W.D. Mich,

1982); Christianson vy Pioneer Sand &

Gravel Co. 681 F.2d 577 (9th Cir., 1982);

Washington v Northland Marine Co. Inec.,

681 F.2d S82 (9th Cir., 1982); Edwards y

U.S. Postel Service, 678 F.2d 1276, (Sth

Circ., 1982); Talley v. U.S. Postal Ser-

vice, S32 F.Supp 786 (D. Minn., 1982);

Engelsberg v Transcom Lines, iInc-, 530

F.Supp 628 (W.D. Wash, 1982); McFarland v

1,.B.T.» S35 F.Supp 970 (N.D. Tex. 1982);

Hend vy Internetional Chemical Workers

Union 681 F.2d 1308 (i1ith Circ., 1982);

Badon vs. G.M.C. 679 F.2d 936 (6th Cir.

1982); Herdesty v Essex Group, inc-., 550

{continued on next page botton)

These unanswered questions included

the appropriateness of applying Mitchell

retroactively. These decisions were var-

ied in their results. Certiorari was

issues which Mitchell left unanswered

including retroactivity. [5]

{4 cont’d] F.Supp 752 (N.D. Ind, 1982);

Larry v Penn Truck Aids __F.Supp__, 112

LRRM 2949 (E.D. Pa., 1982); Lawson v.

Truck Drivers Local Union 100 698 F.2d

250 (6th Circ, 1983); Leech v U.S. Postal

Service 698 F2d 250 (6th Circ, 1983);

Workers Local 5, __F. Supp__,. 113 LRRM

2080 (N.D. Ind, 1982); Pitts v Frito-Lay,

Inc. 700 F.2d 330 (6th Cir., 1983); D’

Andrea vy American Postal Workers Union,

700 F2d 335, (6th Circ, 1982); LaMare v

Inland Div of General Motors Corp., S50

F.Supp. 1005 (S.D. OH, 1982); Maget vs

Kaiser, 546 F.Supp 486 (S.D. OH, 1982);

Bigbie v Local 142, I1.B.T., 530 F. Supp.

402 (N.D. I1ll., 1981); Carpenters Local

1020 yv EMC Corp., 658 F 2d 1285 (9th

Circ, 1981); Collins v Americen Freight

System Inc., S59 F.Supp 1032 «(W.D. Md.,

1983); Edie v. Brundage Co. 546 F Supp

837 (W.D. Mich, 1982); Hudson v Teansters

Local Union No. 957, S36 F Supp. 1138

(S.D., Oh, 1982).

{5} The other issues presented in Del

Costello were: (1) Is state arbitral

{continued on next page botton]

Del Costello did not specifically

address the question of whether Mitchell

should be given prospective or retroac-

tive application. Instead, the Court

found that the Mitcheli rule was no

longer viable because:

---Sstate limitations periods for va-

cating arbitration awards fail to

provide an aggrieved employee with «4

satisfactory opportunity to vindicate

his rights under Sec 301 and the fair

representation doctrine.

Del Costello, supra at 2284.

On that basis, the Court looked be-

yond the Mitchell rationale and applied

the statute of limitations period of Sec.

10¢(b) of N.L.R.A. (29 USC Sec.160(b))] The

Court adopted the reasoning of Justice

Stewart in his concurring opinion in

Mitchell.

in United Parcel Service v. Mitchell eap-

plicable to both company and union when

fair representation suit is filed against

both of them? (2) Should limitations

period for bringing fair representation

suits be borrowed from National Labor

Relations Act rather than state statutes

for vacation arbitration awards?

In the instant case, the Court of

Appeals applied Del Costello retroac-

tively without any discussion as to

whether or not retroactive application

was appropriate. (See Appendix A-1 to

A-11) Thus, this case is in conflict with

LeaBond, supre and Edwards, supra. The

Federal Courts of Appeals are in conflict

on this question. Further, various

Courts of Appeals heve now decided impor-

tant questions ot tederal law which have

not been but should be settled by this

Court. The Court ot Appeals decision also

seems to be in conflict with previous

decisions ot this Court. Therefore,

review on certiorari would be appropriate

in this instance. (See Rule 17.1 of the

Rules of the Supreme Court.)

kers Union 564 F.Supp. 1262 N.D. Miss.,

1983 (discussing retroactivity ot Dei

Costello without resolution).

In the instant case, the Court of

Appeals applied Del Costello retroac-

tively without any discussion as to

whether or not retroactive application

was appropriate. (See Appendix A-1 to

A-11) Thus, this case is in contlict with

LaBond, supra and Edwards, supre.- The

Federal Courts of Appeals are in conflict

on this question. Further, various

Courts of Appeals have now decided impor-

tant questions of federal law which have

not been but should be settled by this

Court. The Court of Appeals decision also

seems to be in conflict with previous

decisions of this Court. Theretore,

review on certiorari would be appropriate

in this instance. (See Rule 17.1 of the

Rules of the Supreme Court.)

{6 con’t) and Organ v Int’1 Chemicel Wor-

kers Union 564 F.Supp. 1262 N.D. Miss.,

1983 (discussing retroactivity of Del

Costello without resolution).

The landmark case on the subject of

civil retroactivity is, of course, Chey-

ron Qil Co. vs Huson, 404 US 97 (1971).

In terms of retroactivity, the cited case

is factually similar to the instant one.

In Chevron, this Court pronounced a

three part test to determine when 4 deci-

sion should be given prospective only

application:

In our cases dealing with the non-

retroactivity question, we have generally

considered three separate factors.

First, the decision to be applied

non-retroactively must establish a new

principle of law, either by overruling a

clear past precedent on which litigant

may have relied, or by deciding an issue

of first impression whose resolution was

not clearly foreshadowed.

Second, it has been stressed that “we

must...weigh the merits and demerits in

each cese by looking te the prior history

ef the rule in question. its purpose end

effect. and whether retrospective opere-

tion will further or reterd its eopere-

tion.” Finglly. we beve weighed the

dneguity ispeosed by retreective sprlice-

tion. for “(where ea decision of this

Court could produce substentiel inequit-

eble results if epplied retroectively,

there is ample basis in our cases for

avoiding the injustice or hardship by a

holding of nonretroactivity.”

Chevron, supra, at 106-107,

(citations omitted, emph. added)

Each of these factors weigh heavily in

Petitioners’ favor.

There can be little question but that

Del Costello established 4 new principle

[7]

of law overruling clear past precedent.

(7) The overwhelming weight of authority,

in the Sixth Circuit and elsewhere at the

time Petitioners filed suit, suggested

that a contract or torts statute of limi-

tations was the proper statute to apply.

See e.g. Int’l Union, U.A.W. vy. Hoosier

Cardinal Corp., 383 US 697 (1966); Galle-

gher vy Chrysler Corp, 613 F2d 167 (6th

Circ, 1980); Smart v Ellis, 580 F2d 215

(6th Cir 1978), cert.den 440 US 958; Gray

vy Int’l Agan., 416 F.2d 313 (‘6th Cir,

1969); De Vries v Interstete, 501 F.Supp

105, (N.D. Oh., 1977) at£’d 620 F2da 302

(6th Cir., 1980); Dili v Wood, Shovel &

Oh., 1972); Relitord vy Eastern Cosel

Corp., 260 F.2d 447 (6th Cir., 1958) cert

den. 359 US 958; Faelsetti vy United Mine

Workers,355 F.2d 658 (3rd Cir. 1966);

Buckholtz vy Switt & Co. 62 FRD 5861 (CD.

Minn., 1973); Sendovel vy. Arsour Co. 429

F2d 1234 (2nd Cir., 1970) cert den. 401

US 1009; Cerpenters & Hiliwrights Hith.

Ben. Trust Fund vy Domestic iIneuistion,

{continued on next pege botton)

This is particularly so in the Sixth

Circuit where the Court’s three srmost

recent decisions (prior to Mitchell and

DelCostello» applied state tort statute

Butler v Int’1i Brotherhood of Teamsters,

etc., S14 F2d 442 (8th Cir., 1975) cert

den. 423 US 924; Mikel vs. Wisconsin

Bridge & Iron Co. 359 F.Supp. 444 (D.

Wis., 1973); Warren v Int’l Brotherhood

of Teamsters, Etc. S44 F.2d 334 (8th

Cir., 1976); Grant v Mulvihill Bros.

Motor Service, inc., 428 F.Supp 45 (D.

Ill., 1976); Allen v Amalgamated Transit

Union, 415 F.Supp. 662 (Ed. Mo., 1976);

aff’d. in pertinent part and remanded in

part, S54 F.2d 876 (8th Cir., 1976);

Kaufman & Broad Home Systems, inc. v

Int’L Brother-hood of Fireman & Oilers,

607 F. 2d 1104 (Sth Cir, 1979; Robbins yv

Newman, 481 F.Supp. 1241 (E.D. Mo.,

1979); Allen vy McWilliams Electrical Co.

494 F.Supp 43 (N.D. I11., 1980); Coleman

vy Kreger Co. 399 F.Supp 724 (D.Va.,

1975); Sanderson v Ford Motor Co. 483 F2d

102 (Sth Cir., 1973); DeArroyo vy Sindi-

cato de Trabajadores Packinghouse, 425 F.

2d 261 ‘(list Cir, 1970) cert.den.- 400 US

877, reh.den 400 US 953, cert.den, 410 US

877, reh. den- 410 US 926; Price v South-

ern Pacific Trnsprtn. Co, S86 F2d 570

(9th Cir., 1978). Of the three Chevron

factors, the first is the “most fundenmen-

tel". Wechovie Bank end Irust y Net-i

Student Mrktg. 650 F2d 342, 347 (D.C.

Cir, 1980), cert.den., 101 S.Ct. 3098.

of limitations to Vaca actions.‘'8) None

of these decisions applied the limitation

period of Sec. 10(b) of the N.L.R.A.

In fact, not until Badon v G.M.C. 679

F.2d 93 (6th Cir., 1982) did the Sixth

Circuit break new ground by applying the

Section 10(b) limitation period. [9]

In Badon the Court sought to apply a

Michigan arbitration vacation statute of

limitation as per Mitchell. However, the

Court found the Michigan statute inappli-

cable because it specifically excluded

labor relations matters. Therefore, the

Badon Court looked to Justice Stewart’s

concurrence in Mitchell and applied the

six month limitation period of Sec.10(b).

Subsequently, the Sixth Circuit had

occasion to consider whether Badon should

(6) Grey v Int’l Assn. sguprei: Gellegher vy

Chrysler Corp. suprei Smert yy Ellis.

supre

{9] Bedon wes decided efter Mitchell and

efter Petitioners filed their complaint.

Bedon wes decided before Del Costello.

be afforded retroactive application in

Pitts v Frito-Lay, 700 F2d 330 (6th Cir.

1983). The Pitts Court determined that the

Badon (now the Del Costello) rule should

not be applied retroactively. The Court

came to such a conclusion by analyzing

each of the three Chevron elements.

Subsequently, the Sixth Circuit had

occasion to address the question of

whether Del Costello, like Badon, should

be limited to prospective only applica-

tion. In reliance on Pitts, the Court

McLean Trucking Co., supra. That analy-

Sis should have been applied with equal

force herein.

Retroactive application of Del Cos

tello would cause substantial inequitable

results. It would terminate Petitioners’

suit after they have spent a great deal

of time and money. It would deprive then

of their right to a “day in Court”. Chevyv-

ron, supra, at 108. The transfer of work

challenged in this lawsuit resulted in

Petitioners being deprived of many years

of hard-earned seniority. Petitioners

have suffered tremendous hardships due to

this loss of seniority. In effect, many

have actually lost their livelihood.

Petitioners relied upon the case law

as it existed at the time. Petitioners

merely seek the opportunity to present

the merits of their case to an impartial

trier of fact. In weighing the equities

one reaches the inescapable conclusion

that the scales are tipped dramatically

in Petitioners’ favor.

Like the Chevron case, nonretroactive

application would be the most equitable

method of dealing with the new Del Cos-

ello rule. There is 4aple basis in the

case law to avoid the injustice or hard-

ship by a holding of nonretroactivity.

Chevron, supre at 107. That ample case

law should be employed herein.

II. THE STATUTE OF LIMITATIONS WAS TOLLED

BY PETITIONERS’ ATTEMPT TO EXHAUST

THEIR INTERNAL UNION REMEDIES.

It is well established that equitable

tolling principles should be applied in

the proper circumstances. Leake v Univer-

sity of Cincinnati, 605 F2d 255 (6th

Circ., 1979); Fox vy Eaton Corp.,614 F2d

716 (6th Circ., 1980); Harris v Walgreen

Distribution Center, 456 F 2d 588 (6th

Circ., 1972); Goodman vy City Products

Corp., 425 F2d 702 (6th Circ., 1970). In

determining whether or not to apply such

principles, the question is whether or

not the facts “justify the application of

equitable principles of tolling.” Fox vy

Eaton Corp-, supra, at 718.

At the time Petitioners began to

pursue their internal union remedies, all

indicators upon which they had reason to

rely suggested that exhaustion of such

remedies was a necessary prerequisite to

filing a lawsuit. First, the Constitu-

tion of the International Brotherhood of

Teamsters required ‘and still does re-

quire) such exaustion'19)., Second, the

By-lawa of Local 407 also incorporated

the same exhaustion requirement. [11]

{10) Article XIX, Sec.12‘(a) of the Con-

stitution provides:

Every member, officer, elected busi-

ness agent, Local Union, Joint Coun-

cil, or other subordinate body ag-

ainet whom cherges have been pre-

ferred and disciplinary action taken

ag 4 result thereof, or against whor

adverse rulings or decisions have

been rendered or who claims to be

aggrieved, shall be obligated to

exhaust all remedies provided for in

this Constitution and by the Interna-

tional Union before resorting to any

court, tribunal, or agency against

the International Union, any subordi-

nate body or any officer or employee

thereof.

(11) Article 23 of the By-laws of Local

407, provides:

[continued on next page bottorn)

Third, the case law overwhelmingly sup-

ported the proposition that exhaustion of

(12)

internal union remedies was necessary.

{11 con’t) The Union acknowledges that

the Constitution of the International

Brotherhood of Teamsters, Chauffers,

Warehousemen, and Helpers of America

supersedes any provisions of these By-

lawea herewith or hereinafter adopted

which may be inconsistent with such

Constitution. The Union hereby re-

adopts as its Constitution, such Inter-

national Constitution and incorporates

herein by reference, as though fully

set forth herein, all such provisions

of such Constitution, as it may be

interpreted, modified, or amended from

time to time, which are applicable to

Union matters and affairs, and shall

perform all the duties imposed upon a4

Union by such Constitution.

[12] See e.g. Eleming vy Chrysler Crp, 575

F2d 1187, (6th Circ., 1978); Ruzicka yv

General Motors Corp., S23 F2d 306, (6th

Cir., 1975); Imel vy Zohn MNfig.Co. 481 F2d

181; (10th Cir., 1973) cert.den. 414 US

915, (1974); Bahareh vy Eltrea Corp.-, 394

F2d SO2, (6th Circ., 1968); Fabian vs

Exreight Drivers and Helpers Locel No. 357

448 F. Supp. 835, (D.MNd., 1978); Winter y

Teamsters. Local $2392, S69 F2d 146, (D.C.

D.C. 1977); Willette vy Eord Hotter Co-,

S863 F2d 852, (6th Cir., 1978); Scohrese vs

Comsplete Auto Irensit. —_F-Supp_., 101

LRRMN 2178 (S.D.Mich 1979); Pullen vy Gen’

Corp, 444 F.Supp. 87, (D.C. Nd.,

Notors

1978); NeGovern vy IBT Lecal He. 7723. 447

F. Supp. 368, (E.D., Pa., 19768);

Despite these factors the Court ot

Appeals found no merit to Petitioners’

argument that their attempt to exhaust

the available internal union remedies

tolled the statute of limitations. How-

ever, the Court never really addressed

the reasoning behind this finding. C(Ap-

pendix, A-1 to A-11)

The anamoly of the Petitioners’ “catch

22” plight is rather obvious. Had Peti-

tioners chosen not to attempt to exhaust

their internal union remedies and filed

gauit within six (6) months atter the July

19th grievance decision, Respondents

would undoubtedly have raised the defense

of failure to exhaust internal union

remedies. Unless some exception applied,

the Court would heave been duty-bound, at

thet time, to agree with Respondents end

dismiss Petitioners’ case. Thus, Peti-

tioners were well-advised to sttempt to

exhaust their internal union remedies

before filing suit.

To do otherwise, Petitioners would

have been required (in 1979) to antici-

pate several significant Supreme Court

decisions, (Mitchell, Clayton and Del

Costello» all of which would have signi-

ficant impact upon their Sec.301

case. [13] This would be tantamount to

requiring Petitioners to “walk a high

tight-rope without a net beneath then".

443 US 193, 210, Blackmun, J., concurring

(1979); see also dissenting opinion of

Judge Wisdom in Weber v Kaiser Aluminum &

Chemical Corp., S63 F2d 216, 230, (Sth

Cir., 1977).

In Clayton, this Court addressed the

doctrine of exhaustion of internal union

remedies for the first time. The Court

even been decided by the Courts ot

Appeel.

chose to strictly limit application of

the doctrine as a defense to a Vaca ac-

tion. However, at the time Petitioners

were faced with a choice of filing suit

or exhausting their internal union renme-

dies the state of the pre-Clayton law was

such that exhaustion seemed the aore

prudent first step.

Simply because Clayton eliminated

exhaustion as a prerequisite in this

case, does not make tolling improper.

Under the circumstances of this case,

Petitioners’ attempt to exhaust their

internal union remedies should have acted

to toll the running of the statute. [14]

Petitioners attempted to exhaust

their internal union remedies before

bringing suit in reliance upon the

[14] It should also be noted that this

Court has, at least implicitly, recog-

nized that an attempt to exhaust internal

union remedies might toll the running of

the stetute of limitations. Clayton,

supre, eat 695.

a”,

en a

existing case law, the I.B.T. Constitu-

tion, and the By-laws of Local 407. It

would be inappropriate to deny Petition-

ers their day in court because they re-

lied upon these authorities. The facts

and circumstances of this case overwhela-

ingly “justify the application of equit-

able tolling principles.” Fox v Eaton,

supra at 718. The Court of Appeals erred

in not applying these principles.

III. THE DOCTRINE OF ARBITRAL FINALITY

SHOULD NOT HAVE BEEN APPLIED TQ THE

The principle of lending finality to

@ conclusive decision rendered by the

grievance procedure is the logical under-

pinning of this whole area of law. The

doctrine of finality is the reason why

most Section 301 suits are uniquely “hy-

brid” in nature. Vaca vy. Sipes, 386 US

171 (1967)

The rule of arbitral finality was

developed in order to effectuate the

national policy which favors the settle-

ment of labor-management disputes by

those processes chosen by the Union and

the employer as specified in their col-

lective bargaining agreement. United

Steelworkers vy» American MNfg.Co, 363 US

S64 (1960); U.S.W.A» vs Warrior and Gulf

Navigation Co., 363 US 574 (1960); Hines

vs Anchor Motor Freight, Inc., 424 US 554

(1976). The Mitchell and DelCostello

decisions both recognize the importance

afforded to the rule of arbitral final-

ity. Without a final and binding decision

by the grievance procedure, the analysis

of both Mitchell and DelCostello are in-

applicable. The rule of finality is the

logical underpinning of both decisions.

Under this principle, final and bin-

ding grievance decisions are generally

adhered to by the courts in order to

effectuate the intent of the parties to

the collective bargaining agreement.

Petitioners’ suit challenged both the

grievance decision of July, 1979 and the

earlier withdrawal of their grievance by

Defendants in September, 1978. The grie-

vance procedure of the N.M.F.A. (Article

45, see Appendix E) provides for final

and binding decisions only when the Joint

Local Area Committee, the Joint State

Cartage Committee, or the Joint Area

Cartage Committee, Cor in some circunm-

stances not applicable herein, an uam-

pire) settle disputes by majority vote.

The record reveals that this did not

happen in this case with respect to Peti-

tioners’ earlier grievances.

These grievances were deadlocked be-

fore the Joint Local Area Committee and

the Joint State Cartage Committee. A

hearing before the Joint Area Cartage

Committee was set for September 22, 1978,

but on September 14, 1978, Local 407

withdrew the grievances. Petitioners

alleged that the withdrawal was in bad

faith and in breach of the union’s duty

of fair representation. Local 407 al-

leged that the grievances were “settled”.

There is no provision in the contract

making such a “withdrawal” or “settle-

ment” final and binding. Thus, it should

not be accorded application of the rule

of arbitral finality.

To afford final and binding ettect to

the non-decision in question would be

thoroughly inconsistent with the “means

selected by the parties” for “final ad-

justment of grievances” as expressed in

the language of the collective bargaining

agreement. UMW yv Barnes & Tucker Co.,

S61 F2d 1093 (3rd Cir., 1977); Badon v

G.M.C., supra. As such, the grievance

cannot be afforded finality.

Further, the Joint Committee which

decided the grievance in July, 1979 was

not the appropriate forum to make such a4

determination. Under the relevant terms

of the N.M.F.A., contractual determina-

tions relating to such changes of opera-

tions are exclusively within the province

of a separate and distinct collective

bargaining entity, the Change of Opera-

tions Committee. (N.M.F.A., Article 8&8,

Sec. 6 (a) and (d), see Appendix €£.]) As

such, the Joint Committee had no “con-

tractual juriediction”™ to decide the

grievance. It has been held that:

When an arbitration board ventures

outside the scope of the authority con-

ferred on it by the collective bargaining

agreement, it lacks power to bind the

parties. Northwest Airlines. inc. ¥y

Airlines Pilots Assn. iInt’l. 530 F2d

1048, 1050 (D.C. Cir. 1976)

In this case, the Joint Comnittee

rendered a decision which was outside the

scope of its authority as per the con-

tract. Thus, its decision should not

have been accorded application of the

rule of arbitral finality. To aftord

finality to the grievance “decisions” in

this case would contravene the language

ef the contract rather than enforce it.

This would thoroughly contradict the

principles of the Steelworkers Trilogy.

The Del Costello and Mitchell deci-

sions are only applicable to a grievance

decision that must be accorded applica-

tion of the rule of arbitral finality.

Since neither grievance “decision™ at

iesue in this case was final and binding,

neither Del Costello nor Mitchell have

any application.

CONCLUSION

For the reasons set forth above, it

is respectfully urged that the petition

for certiorari be granted.

Respectfully submitted,

BENJAMIN B. SHEERER

Attorney for Petitioners

611 Rockefeller Building

Cleveland, Ohio 44113

(216) 241-5151

AFFIDAVIT OF SERVICE

STATE OF OHIO )

> SS

CUYAHOGA COUNTY )

I, THEODORE E. MECKLER, after first

being duly sworn according to law, do

hereby certify that three (3) copies of

the foregoing Petition have been depos-

ited in a United States mailbox with

first class postage prepaid on this ___.

day of December, 1983 and sent to Edward

Kaminski, counsel for Respondent, Road-

way, P.O. Box 1500, One Cascade Plaza,

Akron, Ohio 44309; and Sorrell

Logothetis, counsel for Respondents, Lo-

cal 407, Joint Council 41, National Conm-

mittee and Joint Committee, i111 West

First Street, Suite 1100, Dayton, Ohio

45402: and Scott Soldon, counsel for

Respondent, C.C.T., 788 North Jefferson

Street, P.O. Box 92099, Milwaukee, wl

53202, with three (3) copies of this

Petition for each of the atorementioned

counsel.

THEODORE E. MECKLER

Attorney tor Petitioner

SWORN TO AND SUBSCRIBED in my presence on

this day of December, 1983.

NOTARY PUBLiC

82-3078

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GUY W. BRAIN, et al., ?

)

Plaintiff-Appellants )

v. )

)

ROADWAY EXPRESS, INC.,)

et al.,) ORDER

)

Defendants-Appellees.)

Before: KEITH and MERRITT, Circuit Jud-

ges and BROWN, Senior Circuit Judge

This i8 an appeal from a judgment of

the district court which granted summary

judgment in favor of the detendants in an

action brought pursuant to Section 301 of

the Labor Management Relations Act

(LMRA). 1

The appellants are employees ot the

appellee employer, Roadway Express, and

members ot the appellee union, the Inter-

national Brotherhood of Teamsters. During

the spring of 1978, Roadway began trans-

ferring work from the Cleveland terminal,

82-3078 PAGE Zz

where the appellants were employed, to

other terminals. The collective bargain-

ing agreement provided that such trans-

fers of work must be processedaqd through

the Change of Operations Committee.2 The

appellants, alleging that the appropriate

procedures for work transfers were not

followed, filed grievances in May 1978.

These grievances were heard by the

Joint Area Local Committee and the Joint

State Cartage Committee. Both committees

deadlocked on the issue and the griev-

{2} Article 8, Section 6 of the collec-

tive bargaining agreement, which governed

work transfers, provided:

Present terminals, breaking points or

domicilesa shall not be transterred or

changed without the approval of an appro-

priate Change of Operations Committee.

Such Committee shall be appointed in each

of the Conference Areas, equally composed

of Employer and Union representatives.

The Change of Operations Committee shall

have the authority to determine the sen-

iority of the employees aftected and such

determination shall be final and binding.

A-2

82-3078 PAGE 3

ances were forwarded to the Joint Area

Cartage Committee. A hearing was sche-

duled for September 22, 1978. However,

Local 407, the appellants’ local, with-

drew the grievances. Local 407 asserted

that the withdrawal occurred after the

grievances were settled. The settlement

agreement provided that three dockworkers

who had been laid-off in May 1978 due to

the transter of work were to receive two

days wages. Meanwhile, Roadway continued

to transter work trom the Cleveland ter-

minal and in December 1978 it began lay-

ing oft workers.

Five of the plaintiffs filed griev-

ances as 4 result of the layoffs. These

grievances were also brought before the

Joint State Committee who heard the grie-

vance and deadlocked on the issue. On

July 19, 1979, the Joint State Committee

82-3078 PAGE 4

heard the grievance and ina unaninaous

decision ruled that Roadway had not vio-

lated the collective bargaining agree-

ment. The decision was orelly announced

to the employer and the union. According

to the appellees, tour of the tive appel-

lants were also present when the decision

was announced.

On August 23, 1979, the Roadway emplo-

yees at the Cleveland terminal were in-

formed that they could transfer to other

terminals upon the condition that. they

would be placed at the bottom ot the

seniority lists of the terminals. Most

employees accepted this ofter, except the

appellants, who contended that they were

entitled to be “dovetailed” into the

other terminals’ seniority liste.

The appellants brought suit through

internal union procedures alleging that

A-4

82-3078 PAGE 5S

four of the local union officers had

breached their duty of fair representa-

tion. Thie action traversed through

union procedures until February 14, 19861

when the General Executive Board decided

in favor of the union officials.

On December 18, 1983, prior to the

General Executive Board decision, the

plaintiffe also filed suit under Section

301 of the LMRA againat the union and the

enployer.? Restoration of seniority bene-

fite, back wages, fringe benefits, and

damages for emotional distress were

sought against Roadway. Reasonable attor-

ney’s fees and $100,000 in punitive dan-

(3) The Plaintitts-appellants named the

following parties as defendants: 1) Road-

way Express, Inc., the employer; 2) Local

407, the local union representative;

3)Joint Council 41 of the International

Brotherhood of Teamsters; 4) the Tean-

sters Freight industry Negotiating Com-

mittee; S) Freight Division Central Con-

ference of Teamsters; and 6)

A-5

82-3078 PAGE 6

ages were sought against the appellee

unions.

On April 21, 1981, the United States

Supreme Court decided United Parcel Ser-

vice@. inc. vs Mitchell, 451 U. S. S56

(1981) where it was held that the statute

of limitations for actions brought under

Sec.301 of LMRA is to be determined by

reference to the statute of limitations

of an analogous seteate law, @.g.-, the

atatute of limitations governing actions

to vacate arbitration awarde. Appellee

Roadway, in response to the Mitchell

decision, filed a motion to amend its

anewer to assert the statute of limita-

tions defense on May 20, 1981. The dis-

trict court granted Roadway’s motion. On

July 2, 1981, the other defendants filed

@imilear motions which were granted by the

district court on August 11, 1981.

A-6

82-3078 PAGE 7

All the appellees filed motions for

summary judgment on August 17, 1961,

which were granted on December 3, 1981.

Citing the Mitchell decision, the dis-

trict court ruled that Sec.2711.13 of the

Ohio Rev. Code Ann. was the applicable

statute of limitations. This section of

the Ohio Code provides that there is a4

ninety day statute otf limitations tor the

vacating of an arbitration award. Since

the plaintitfs had tiled their suit well

after the ninety days provided for by the

atatute, the district court granted the

defendants’ motion for summary judgment

and diaemissed the case. The plaintitt-

appellants now appeal that decision.

We aftirm the district court’s deci-

sion that the defendants were entitied to

6 summary judgment. However, we uphold

the district court’s decision upon a

82-3078 PAGE 8

basis different from that given by the

district court. In granting the defen-

dants’ motion for summary judgment, the

district court correctly relied upon

United Parcel Service vy. Mitchell, 451

U.S. S6 (1981). The Supreme Court in

Mitchell held that the statute of limita-

tions in an action brought under Sec. 301

is to be determined, as a matter of fed-

eral law, by reference to an analogous

state statute of limitations. Using the

analysis employed by the Supreme Court in

Mitchell, the district court correctly

found that the appropriete state statute

of limitations was Ohio Rev. Code Ann.

Sec. 2711.13. According to this statute,

notice of a motion to vacate an arbitra-

tion award must be given within ninety

days after the award is given to the

parties. Because the plaintiff-appel-

A-8

82-3078 PAGE 9

lants failed to bring their suit within

this ninety day period, the district

court correctly granted the defendants’

motions for summary judgment.

Although the district court was cor-

rect in its decision, the recent case

DelCostello vy. International Brotherhood

cf Teamsters, —.ve..9 2e8 3.Ct. aaa

(1983), compels us to reach the same

result for a different reason. In Del

Costello, the Supreme Court held that the

six month statute of limitations imposed

by Sec.10(b)* of the National Labor Rela-

tions Act (NLRA) is to be applied when an

employee brings a Sec.301 action against

both his employer for breach of the col-

lective bargaining agreement and his

union for breach of its duty of fair

(4) 29 U.S.C. Sec.160(b),

82-3078 PAGE 10

representation.®> Justice Brennan, wri-

ting for the amajority, stated that

Sec.10(b) furthered the “federal policies

at stake and the practicalities of liti-

gation make [(Sec.10.(b)] a significantly

more appropriate vehicle for interstitial

lawmaking.” DelCostello, supra, at 2294.

Thus, the six month statute of limita-

tions provided by Sec.1i10(b) of the NLRA

is the appropriate measure to be used.

Although the DelCostello decision exten-

ded the statute of limitations to six

months from the district court’s original

ruling of ninety days, the appellants

failed to meet this requirement as well.

{S$} This was the position originelly

teken by Justice Stewart in his concur-

ring opinion in United Percel Service.

inc. Ys Hatchell. supre- However, the

majority of the Court refused to aedorft

this position since it hed not been

reised by the perties on appeel. See

Bitchell, 101 S.Ct. et 1562 n.2, 1565-66.

A-10

82-3078 PAGE 11

Appellants did not bring their Sec.301

action until at least seventeen aonths

after their claim arose, and thus, their

action is barred by Sec.10(b).

Finally, we find no merit in any of

the arguments presented by the appel-

lants. These argumente, which were

raised in the appellants’ opposition to

the appellee’s motion for summary judg-

ment, were properly dismissed by the

district court. Accordingly, the deci-

sion of the district court is attirmed.

ENTERED BY ORDER OF THE COURT

JOHN P. HEHMAN,

Clerk of the Court

A-11

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

GUY W. BRAIN, et al.,

Plaintiftfie,

CASE NO. C80-2338

JUDGE JOHN MANOS

ROADWAY EXPRESS, INC.

et al.,

)

Defendants. ?)

On December 18, 1980 the plaintiffs,

eighteen employees otf Roadway Express,

Inc. and members of the International

Brotherhood of Teansters, Chauffeurs,

Warehousemen and Helpers of America,

filed suit against the detendants: Road-

way Express, Inc.; Truck Drivers, Local

407, International Brotherhood of Tean-

sters, Chauffers, Warehousemen, and Hel-

pers of America; Joint Council 41, Inter-

national Brotherhood of Teamsters; Tean-

esters National Freight Industry Negotia-

ting Committee; Freight Division Central

Conference of Teanasters, andthe Joint

B-1

State Cartage Committee, for violations

of section 301 of the Labor Management

Relations Act, 29 U.S.C. Sec.185. Plain-

tiffs allege that Roadway breached the

relevant collective bargaining agreement,

the Naitonal Master Freight Agreement and

the Central States Area Local Cartage

Supplemental Agreement (hereinafter

NMFA), and that the union detendants

failed to represent them fairly or col-

luded with the other defendants to de-

prive them of their rights under the

NMFA. Plaintifts seek as relief against

Roadway restoration of their seniority

benefits, back wages, fringe benefits and

monetary relief for emotional stress and

as relief against the other defendants

#100,000 in punitive damages and reason-

able attorney’s fees and costs. Between

January 12 and March 30, 1981, the defen-

dants answered, denying their liability.

In response to the Supreme Court’s

ruling in United Parcel Serv.., inc» Ys

Mitchell, __US__, 101 S.Ct. 1559 (1981)

decided on April 20, 1981, Roadway on May

20 filed a motion to amend its answer to

plead the statute of limitations. On

June 22 this court granted defendant

Roadway’s motion to amend. On July 2 the

other defendants also filed a motion to

amend their answers to plead the statute

of limitations. On August i1 this court

granted the other defendants’ motion. On

August 17, 1981 all of the defendants

filed motions for summary judgment on the

statute of limitations defense. On Sep-

tember 14, 1981 the court granted plain-

tiffs a fourteen day extension of time to

reply to the defendants’ saotions. On

October 1 plaintiffs filed a second ao-

tion for extension of time which the

court denied on Ocotber 5S. On October i13

B-3

plaintiffs submitted a brief in opposi-

tion and ae motion instanter for the court

to accept the brief. The court now

grants plaintiffs’ motion instanter. Be-

tween November il and 17, 1981 the defen-

dants filed reply briefs to the plain-

titfse’ brief in opposition. For the

reasons discussed below, the defendants’

motions for summary judgment are granted.

Ll.

Plaintiffs were dockworkers at Road-

way’s Cleveland Terminal and members of

Teamsters Local 407. In Spring of 1978

Roadway began transferring work from its

Cleveland Terminal to other terminals,

especially its Copley Terminal. Article

8, Section 6 of the NMFA provided that

transfer of work must be processed

through the Change of Operations Commit-

‘the. Plaintiffs esserted that Roadway

did not follow this procedure, and accor-

dingly they filed grievances in May 1978.

B-4

The grievances were deadlocked before

the Joint Local Area Committee and the

Joint State Cartage Committee.! A hearing

on the grievances before the Joint Area

Cartage Committee was set for September

22, 1978, but on September 14, 1978,

Local 407 withdrew the grievances. Plain-

tiffs assert that the withdrawal was in

bad faith and in breach of the union’s

duty of tair representation. Local 407

maintainae that the grievances were set-

tled for payment of two days wages to

three dockworkers who allegedly had been

put on layoff in May because of the

transfer of work.

Roadway continued to tranter work from

its Cleveland Terminal to other termin-

als. In December 1978 Roadway also began

1 These Joint Committees are the griev-

ance machinery of NMFA; majority deci-

sions of a committee are final and

binding on both parties.

to layoff workers at the Cleveland Termi-

nal. Plaintiffs assert a causal connec-

tion between the layoffs and the trans-

fers. Five of the plaintiffs filed griev-

ances over the layoffs and the transfer

of work; the hearing before the Joint

Local Committee was deadlocked.

On July 19, 1979 the Joint State Cona-

mittee heard the grievances and rendered

@ unanimous decision that Roadway had not

violated the contract. At least four of

the five grievants were present at the

hearing. According to the procedure of

the Joint State Committee, it adjourned

after hearing the arguments, decided the

grievance and then reconvened and an-

nounced its decision orally to the emplo-

yer, the union and the grievants. Copies

of the minutes were mailed to the union

and the employer within two months of the

hearing; copies were not sent to the

grievants.

B-6

On August 23, 1979 Local 407 presented

Roadway’s Cleveland Terminal employees

with an opportunity to transfer to the

Copley Terminal on a “take it or leave

it” basis. Thies transeter provided that

the Cleveland employees would not be

“dovetailed” into the Copley eaployee

list according to seniority. Most of the

employees accepted the otter.

On November 15, 1979 plaeintiffe filed

internal union grievance charges tor

breaches of the duty of fair representa~-

tion against four Local 407 otficialse: C.

Jim Kinney, the Loceal’s president; Joe

Lawler, the Local’s vice-president; Russe

Mazzola, the Locel’s business agent; and

Robert Moody. The pleintitte pursued

these remedies to the General Executive

Board of the International Brotherhood of

Teamsters, the highest level of asppellate

procedure for the union. On Feburary 14,

B-7

1981 the General Executive Board ruled

against plaintiffs on their internal

union charges. Plaintifte are now nen~-

bere of Teamsters’ Local 29 which oper-

ates in the Akron area.

Il.

The defendants have moved tor summary

judgment, arguing that plaintiffs’ claima

ere berred by the applicable statute of

limitationa, Ohio Revised Code, Section

2711.13, Motion to vacate, modity, or

correct an Carbitration) award, which

provides in pertinent part: “Notice of a

motion to vacate, modify, or correct an

aveard must be served upon the adverse

party or his attorney within three aonths

after the award is delivered to the par-

ties in intereat...”

Although the decision of an arbitre-

tion board, such ease «4 Joint Committee, is

final and binding on an employee, if the

employee can show that the arbitral pro-

cess had been seriously undermined by the

union’s failure to represent him tairly,

he may obtain judicial review of his

claim under section 301 of the Labor

Management Relations Act. Hines v. An-

cher MNeoter Exreight. Ings, 424 U.S. 554,

96 S.Ct. 1048 (1976) and Smart v. Ellis

Trucking Cos. Ines, S80 F.2d 215 (6th

Cir. 1978), cert. denied, 99 S.Ct. 1497

(1979). However, Congress did not pro-

vide 4 statute of limitations for section

301. Therefore, in Internationa, Us.

UsAse An & AsEtsWe Ys Hoosier Cardinal,

Corp., 383 U.S. 696, 86 S.Ct. 1107 (1966)

the Supreme Court held “that the timeli-

ness of a4 section 301 suit...is to be

determined, aa 4 matter of tederal law,

by reference to the appropriate state

statute of limitations, 66 S.Ct. at 1113.

In Mitchell, supra, the Court elaeb-

orated on whet standards should be used

in determining the appropriate state

eatatute of limitations. Mitchell had

been discharged by his employer tor dis-

honest acts. He filed a4 grievance seek-

ing reinstatment, but the Joint Panel

upheld the discharge. Seventeen aonths

later Mitchell filed his section 301 suit

against the union and his employer. The

defendants had moved tor summary judgment

on the ground that the action was berred

by New York’s ninety day statute ot limi-~

tations for actions to vacate arbitration

awards.2 Mitchell argued that New York’s

aix year limitations period for breach of

contract should apply.

The Court held that the ninety day

2 New York Civil Practice Law (McKinney)

section 7Si1lictad provides that “an

application to vacete or saodity an

{arbitration) award may be made by a

party within ninety days atter ate

delivery to hia.

3 New York Civil Practice Lew Section

213¢(2).

B-10

arbitration statute was more appropriate.

The Court reasoned thet because the en-

ployee, before he may litigate the issue

of the employer’s breach of contract,

must show that the union breached its

duty of fair representation, the suit is

“more analagous to an action to vacate an

arbitration award than to a straight

contract action.” 101 5.Ct. at 1564

(footnote omitted) Moreover, the adop-

tion ot the shorter arbitration statute

of limitations promotes the leading fed-

eral policy of “relatively rapid dispo-

sition of labor disputes.” Id. The Court

then obsered in footnote 5S, Id, that

twenty-eight states have ninety day arbi-

tration statute of limitations. The

Court further supported the need for

rapid disposition of such suits by recog-

nizing that the arbitration process often

interprets critical terms of the collec-

B-11

tive bargaining agreement affecting the

entire relationship between company and

union and subsequent modifications of the

agreement. If such critical decisions

could be called into question as much as

esix years later, the entire collective

bargaining system could easily become

unworkable. Id.

Given the strong reasons announced by

the Supreme Court for adopting the arbi-

tration statute of limitations and that

the facts in Mitchell and the present

case are nearly identical, this court

must hold that Ohio Revised Code Section

2711.13 is the appropriate statute of

limitations for section 301 suite brought

in Ohio.

Plaintitfs, in their brief in opposi-

tion to defendants’ motions for summary

judgment, propose seven arguments for

either tolling or not applying the ninety

day arbitration statute of limitations.

B-12

The first argument is that the detendants

waived the statute of limitations defense

by raising it several months atter the

case had been filed. The plaintiffs rely

upon Hayden vy. Ford Motor Company, 497

F.2d 1292 (6th Cir. 1974) in which the

circuit court held “that statute of limi-

tations are designed primarily tor the

benefit of persons against whom claims

may be made and, in consequence, are

*personal privilege’ defenses that are

waived unless asserted at the earliest

possible moment.” Id, at 1294. In Hay-

en the plaintiff filed two actions: one

timely in state court and the other in

federal court ouside the limitations

period. When the detendant did not raise

the statute of limitations as a defense

to the tederal suit, plaintitt voluntari-

ly dismissed her state action. Six months

later the defendant reisegute detense of

R-13

the statute ot limitations. Under these

facts the Sixth Circuit held that the

defendant hed waived its detense.

However, the Sixth Circuit has limited

the Hayden decision to cases in which the

plaintitt has been prejudiced by the

defendant’s failure to raise the defense.

In Estes v. Kentucky Utilities Co

» 636

F.2d 1131 (6th Cir. 1960) the plaintitt,

injured while working for the defendant,

received worker’s compensation and then

filed suit against the defendant. Three

and a half years after the suit had been

initiated, the defendant raised the de-

fense ot the exclusivity of worker’s

compensation. In upholding the dismissal

of the case on that issue, the circuit

court held that “(wihile it is inexcus-

able for a detendant to induce, either

directly or indirectly, a plaintiff to

forego a legal remedy, it is certainly

@llowable for the defendant to assert a4

B-14

valid legal defense to 4 claim where no

such inducement takes place.” Id, at

1134. In its ruling the court specifi-

cally distinguished Hayden. Moreover in

Pierce v. County of Oakland, 652 F.2d 671

(6th Cir. 1981) the court upheld the dis-

missal of a case on the statute of limi-

tations defense, raised on the day of

trial. The court again distinguished Hay-

den because the plaintiff had not been

prejudiced by the detendant’s raising of

the defense weli after the suit had been

filed.

In the present case the plaintitis

have not been prejudiced by the defen-

dants’ raising the statute of limitations

several months after the suit had been

filed. Moreover, the detendants raised

the defense quickly after the Supreme

Court had clarified the issue with the

Mitchell decision. Therefore, no waiver

“4

occurred.

B-15

Plaintitts’ second argument is that

the Mitchell decision should not be ap-

plied retroactively. They contend that

Chevron Oil Company v. Huson, 704 U.S.

97, 92 S.Ct. 349 (1971) establishes three

etandards, which, it satistied, require 4

deciaion to be applied prospectively: (1)

determine it the new decision overrules

Clear past precedent or decides an issue

of tirst impression when resolution was

not clearly foreshadowed; (2) examine the

prior history ot the rule in question and

whether retrospective operation will fur-

ther or retard its operation; and (3)

weigh any inequities imposed by retroac-

tive application. However, the general

rule is that decisions are give retroac-

tive effect. Unless the party seeking

the prospective-only application can

prove that each of the three Chevron Qil

factors is satisfied, the decision is

given retroactive etfect. Jiminez yY:

B-16

Weinberger, S23 F.2d 689, 704 (7th Cir.

175) cert. denied, 427 U.S. 912, 96 S.Ct.

3200 (1976); Schseter vs First Nationel

Bank of Lincolnwood, SO9 F.2d 1287, 1294

(7th Cir. 1975) cert. denied. 425 U.S.

943, 96 S.Ct. 1682 (1976); and Cochran v.

Birkel, 651 F.2d 1219 (6th Cir. 1981).

The clear past precedent upon which

Plaintiffs rely are Smart v. Ellis, su-

prea, S8O F.2d 215 (6th Cir. 1978)

Gallagher v. Chrysler Corporation,

F.2d 167 (6th Cir. 1980)

S.Ct. 119 (1980).4 In those cases

Sixth Circuit held that in Michigan the

appropriate state statute ot limitations

to apply to section 301 suits was the

state’s three year statute ot limitation

for injuries to persons or property.5S

4 The Sixth Circuit decided Galisgher on

January 22, 1980, several months before

the Supreme Court decided Mitchell.

Ss In Smart the Sixth Circuit rejected

Michigan’s arbitration statute of limita-

tions.

Thus pleintiftis have satistied the firet

of the Chevron Qil criteria, but they do

not satisfy the remaining two.

The rule in question is the tederal

labor law policy of “relatively rapid

disposition of labor disputes.” RKetroac-

tive application of the rule will further

this policy. It will insure that the

important elements of a collective pbar-

gaining agreement will not be called into

question years later. Prospective appli-

cation of Mitchell could only retard the

federal policy in question. Theretore,

pleintiffs are unable to satisfy the

second criteria established in Chevron

Qil, and this court must give the Mit-

chell decision retroactive application.

In Kikos vy. International Brotherhood

of Teamsters. Chsufteurs, Warehousenen

and Helpers of America, Civil Action No.

78-70521 <«E.D. Mich. 1981), the district

B-18

court confronted substentielly similer

facts and held thet the Mitchell case

must be applied retroactively, despite

the circuit’s decisions in Smart and

Gallagher. The court specifically ruled

that the equities did not prohibit retro-

active application. The Seventh Circuit

also applied Mitchell retroactively in

Davidson v. Roadway Express, iInc., 650

Plaintitt’s third argument is that the

Joint Committee process is so different

from traditional arbitration processes

that the rule in Mitchell should not be

applied. This argument is not persuasive.

Mitchell is indistinguishable trom the

present case. Both cases involve union

grievance procedures and state arbitra-

tion statutes. The Court all but expli-

6&6 Judge John Peck, Senior Circuit Judge

for the Sixth Circuit Court of Appeals

gat on this case by designation.

B-19

citly rejected pieintittis’ argument when

it ruled thet applying the ninety day

arbitration stetute, the relatively rapid

disposition of labor dispute would be

promoted and then observed that the New

York setetute “is typical in providing a

relatively short limitations period tor

actions to vacate arbitration awards...28

{eatates) have a period of 90 days.” Mit-

chell, 101 S.Ct. at 1565, £n.5. Further-

aore, the Seventh Circuit in DVavidgson,

supra, in interpreting the NMFA held that

the supplemental agreement does in tact

establish an arbitration procedure...”

650 F.2d at 904. tn. 1.

Plaintiffa’ fourth argument ia that

several other Uhio statutes would be amore

appropriate than the arbitration statute.

Plaintittfsa suggest Uhio’s two year stat-

ute for injury to person or property,

Ohio Revised Code section 2305.10, or the

four year statute for an injury to the

B-20

raghts of pleintitftf not erising in con-

trect, Ohio Revised Code section 2305.04,

or the six year stetute tor an action

upon liability created by statute other

then a torfeiture or penalty, Ohio kKe-

vised Code section 2305.07. Given the

Supreme Court’s reasoning in Mitchell,

none of the statutes can be considered

more appropriate than the arbitration

statute.

Plaintiffs’ titth argument is that the

arbitration statute of limitations was

tolled by their attempt to exhaust inter-

nal union remedies. Plaintiffs correctly

note that it head long been hela that a

party could not bring his section 301

action until he had exhausted internal

union renedies. However, this is no

longer the law. in Clayton v. Interne-

tional Union, US__, 1023 S.Ct. 2088

(1981), the Supreme Court held that if

B-21

internal union remedies “cannot result in

reactivation of the employee’s grievance

or an award of the complete reliet sought

in his section 301 suit, exhaustion will

not be required with respect to either

the suit against the employer or the suit

against the union.” 101 S.Ct. at 2093.

In the present case plaintiffs’ inter-

nal union remedies would not resuit in

either the reactivation of their grievan-

ces or the tull reliet sought in the

section 301 suit, (i.@., restoration of

their seniority). The Constitution of

the Internaltional Brotherhood of Tean-

esters, Article XIX, Section 9(a) provides

that the penalties imposed by the Union

“may consist of reprimands, tines, sus-

pensions, expulsions, revocations, denial

to hold any otfice permanently or tor a

fixed period or commands to do or per-

form, or refrain from doing or pertor-

ming, specified acts.” Even assuming

B-22

that on July 23, 1979 Local 407’s presen-

ting to the plaintiffs an offer to trans-

fer to Copley was a grievance which the

plaintiffs could have raised against

Roadway, the time for raising or reacti-

vating any grievance hed passed when the

plaintiffs initiated their internal union

procedures in November, 1979. The NMFA,

Article 45, Section 1(¢i) provides in

pertinent pert:

Any claim by an employee covered by this

Agreement for additional compensation or

benefits must be presented in writing

within thirty (30) deys from the end of

the month in which the employee had know-

ledge of seid claim. Failure to submit a4

Claim within said thirty (30) days shell

automatically bar any such clein from

being presented to or against said Car-

rier either under this Agreement or

otherwise.

This provision is equivalent to the

clause in the collective bergeaining

agreement which the Supreme Court held in

Clayten barred reactivation of the

grievance. i101 S.Ct. at 2096.

B-23

twas

In Clayton the Supreme Court analyzed

why exhaustion ot internai union remedies

was undesirable, if the plaintiffs could

not obtain full relief trom the union

procedures. Citing Mitchell the Court

ruled that the “allegation (breach of the

union’s aguty of fair representation)

raises issues rooted in statutory poli-

cies extending far beyond internal union

interests." Id. at 2095. If full relief

coulda not be granted, exhaustion would

not serve the national labor policy. “In

such cases, exhaustion would be a4 useless

gesture: it would delay judicial consid-

eration of the employee’s Sec.301 ac-

tion..." Id at 2097. Relying on Mitchell

again the Court held that the important

federal policy of “relatively rapid dis-

position of labor disputes” would be

undermined by exhaustion, if the union

remedies could not provide.full relief.

B-24

The Supreme Court continued its analy-

Sis and specifically rejected the, union’s

argument that the exhaustion detense

should be available to the union, even if

the defense was not available to the

employer. The court reasoned:

A trial court requiring exhaustion with

respect to the suit against the union,

but not with respect to the suit against

the employer, would be faced with two

undesirable alternatives. lt it seteyed

the action against the employer pending

resolution of the internal appeals proce-

dures, it would effectively be requiring

exhaustion with respect to the suit ag-

ainst the employer, a result we have held

would violate national labor policy. Yet

if it permitted the action against the

employer to proceed, and tolled the run-

ning of the stetute of limitation in the

suit against the union until the internal

procedures had been exhausted, it could

very well find itself with two separate

Sec.301 suits, based on the same tacts,

proceeding at different paces in its

courtroonr. As we suggested in Vaca vy.

Sipes, supre, 386 U.S., at 197, 87 S.Ct.,

et 920, this is @ result thet should be

sycoided it possible. The preterabl

approech is for the court to permit t

employee’s Sec.301 action to proceed ag-

ainst both defendants, despite the emplo-

yee’s failure to exhaust, unless the

internal union procedures can reactivate

the grievance or grant the relief that

would be available in the employee’s Sec.

B-25

301 suit against both defendants. id, at

2098-99. (Emphasis added)

This court adopts the Supreme Court’s

suggested approach and holds that because

the plaintitfs’ internal union grievances

would not have resulted in the reactiva-

tion of the grievances or the substantive

relief sought, the statute of limitations

was not tolled while the plaintifts pur-

sued their internal union remedies.

The Sixth Circuit foreshadowed the

Court’s Clayton ruling in Gedde

es v. Chry-

gler Corp., 608 F.2d 261 (6th Cir. 1979).

In that case the district court granted

the defendants’ motions for summary judg-

ment on the plaintitt’s section 301 suit

for failure to exhaust internal union

remedies. The circuit court reversed and

remanded es to both tne employer and the

union. The court held that exhaustion of

internal union remedies is not a defense

B-26

available to an employer.7 As to the

union the court recognized that the poli-

cy arguments favoring delay and exhaus-

tion “are weakest ina case like this

one, which is not wholly a dispute be-

tween a union and its members, but rather

is a ‘complex problem concerning eamplo-

yer, union, and employee member’.”" 608

F.2d at 264, citing N.L.R-B. v. Marine

Workers, 391 U.S. 498, 425, 88 S.Ct.

A7Aid >» 1722 (1968). The court also noted

in dicta that:

{[slome cases have gone so tar as to hold

that the doctrine requiring exhaustion of

internal remedies is inapplicable to

cases not involving purely union prob-

lens. See, @-9-,. Brady vy. Trans World

7 Thus regardless of the Supreme Court’s

holding in Clayton, the Sixth Circuit’s

ruling in Geddes mandates that summary

judgment be granted for defendant Road-

way. If exhaustion is inapplicable to an

employer, an employee could not rely on

exhaustion to toll the statute of limita-

tions for his suit against the eaployer.

This seme reasoning would also apply to

the defendant Joint Committee, which is

not part of the Union.

B-27

Air Lines. 223 F.Supp. 361 (D. Del.

1963), atf’d. 401 F.2d 87 (3rd Cir.

1968), cert. denied 393 U.S. 1048, 89

S.Ct. 680, 21 L.Ed.2d 691 (1966).

608 F.2d at 264. However, the Court de-

clined to base its decision on this reas-

oning. It preferred to remand for further

proceedings on the narrower grounds of

the applicability of the futility doc-

trine.

The plaintitte also argue that their

union constitution required them to ex-

haust their internal union remedies be-

fore bringing suit. In Clayton the

Supreme Court rejected this argument

citing Marine Workers, supre:

«--we held that respondent union could

not discpline one of its members for

failing to exhaust internal appeals pro-

cedures before filing an unfair labor

practice cherge with the NLRB, because

the unfair labor practices charge was “in

the public domain and beyond the internal

effairs of the union.” 391 at 425, 88 S.

Ct., at 1722. <A proceeding by the (NLRB)

is not to adjudicate private rights but

to effectuate a public policy, and (lalny

coercion used to discourage, reterd, or

defeat...access {to those proceedings] is

B-28

beyond the legitimate interests of a

labor organization. 391 at 424, 88 S.Ct.,

at 1721.

Plaintifis’ sixth argument is that the

arbitration statute isa tolled until a

written award has been delivered to all

plaintiffs. Ohio Revised Code section

2711.13 requires that the award must be

delivered to the parties in interest

before the statute begins to run. Plain-

tiffe argue that this provision can only

be satisfied through Ohio Revised Code

section 2711.08 which provides:

The award made in an arbitration pro-

ceeding must be in writing and must be

signed by a majority of the arbitrators.

A true copy of such award without delay

shall be delivered to each of the parties

in interest. The parties to the arbitra-

tion agreement may designate therein the

county in which the arbitration shall be

held and the award made.

Although both the union and the emplo-

yer received written copies of the Joint

Committee’s decision, the individual

grievants did not receive such written

copies. Plaintiffs conclude that the

B-29

erbitration statute never began to run

against then.

However, the Supreme Court has rejec-

ted this reasoning. In Mitchell, the

reviewing Court of Appeals did not adopt

the arbitration statute “in part because

of its view that discharged employees

could not institute such actions under

New York law...” 101 S.Ct. 1563, fn. Be

The Court ruled: “The fact that an emplo-

yee could not bring a direct suit to

vacate an arbitration award, however,

does not mean that his section 301 clain,

which if successful would have the same

effect is not “closely analogous” to such

an action.” Id, Similerly, that the

grievants are not entitled to a written

ewerd, does not mean that section 2711.13

is not the eppropriate statute to apply.

Obviously, the Court intended to borrow

the limitetions period of the erbitretion

b-30

statute, even if the procedural elements

of the Arbitration Act do not apply to

the grievance machinery of a collective

bargaining agreement. Moreover, plain-

tiffs cannot claim prejudice by the fail-

ure to receive notice, because most of

the grievants heard the Joint Committee’s

decision on July 19, 1979.

Plaintiffs’ final argument is that the

doctrine of arbital finality is not ap-

plicable to the grievance decisions in-

volved because the Change of Operations

Committee is the appropriate entity to

determine the labor issues involved. In

essence the plaintitfs argue thet the

Joint Committee had no jurisdiction to

hear their complaints. However, Article

8, Section 6g) of the NMFA vests the

Joint Committees with the power to decide

issues of seniority:

Accordingly, the perties acknowlege that

questions of the application of seniority

B-31

righte may arise which require difterent

treatment and it is anticipated and

understood that the Employers and the

Unions jointly involved and/or the re-

spective grievance committees may autual-

ly agree to such disposition of questions

ot seniority which in their judgment is

eppropriaete under the circumstances... In

ell cases the seniority decisions of the

Joint Committees, including the Change of

Operations Committees and Subcommittees,

established by the National Master

Freight Agreement and the respective

Supplemental Agreements shall be final

and binding.

Accordingly, this court holds that the

ninety-dey arbitration statute of limita-

tions is the appropriate statute to apply

in this case, thet there are no reasons

why the statute should be tolled or not

applied, and that plaintiffs filed their

suit well atter the ninety deysa allowed

by the statute. Defendants’ motions for

summary judgment are granted and the case

is dismissed.

IT IS SO ORDERED.

DISTRICT JUDGE

(JOHN M. MANOS)

B-32

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

GUY W. BRAIN, et al., )») CASE NO. C80-2338

)

Plaintiffs, )

) JUDGE JOHN MANOS

v. )

)

ROADWAY EXPRESS, INC.,)

et al., » ORDER

Defendants. )

IT IS HEREBY ORDERED that pursuant to

memorandum of opinion in the above-

captioned case, ell the defendants’

motions for summary judgment are granted

and the case is dismissed.

UNITED STATES

DISTRICT JUDGE

(JOHN M. MANOS)

No. 82-1576

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GERALD A. LaBOND, ET AL.,

Plaintifts-Appellants

McLEAN TRUCKING COMPANY

Defendant -Appellee

)

Vv. )

)

» ORDER

)

BEFORE: CONTIE and KRUPANSKY, Circuit

Judges; and REED, District Judge

The defendant-appellee moves this Court

to reconsider its order reversing the

district court’s order which had dis-~-

missed plaintiffs’ Sec.301 suit for being

time-barred by the six-month time period

provided in Sec.10(b) of the National

Labor Relations Act. The defendant con-

tends that the Supreme Court has recently

mandated that the six-month time period

shall be applicable to circumstances like

those involved in the instant case. Del

Costello vy. International Brotherhood of

* The Honorable Scott Reed, District

Judge, U.S. District Court for the East-

ern District of Kentucky, sitting by

designation.

D-1

No. 82-1576

-2-

Teamsters, _U.S._._, S51 U.S.L.W. 4693

(June 8, 1983).

As the plaintitfs correctly point out

in their response to the defendant’s a,o-

tion to reconsider, the Supreme Court did

not decide in DelCostello to give their

decision retroactive application; rather,

the Supreme Court essentially rendered an

opinion in accord with this Court’s deci-

sion in Badon vy. Generel Motors Corp.,

679 F.2d 93 (6th Cir. 1982). Absent a

Supreme Court ruling on the issue of

retroactivity, it is clear that this

Court’s decision in Pitts v. Frito-Lay,

Inc.» 700 F.2d 330 (6th Cir. 1983) to

give the Badon decision prospective ap-

plication only is the controlling law in

the instant case.

No. 82-1576

-3-

The defendant’s motion to reconsider

is, accordingly, denied.

ENTERED BY ORDER OF THE COURT

JOHN P. HEHMAN, Clerk

NATIONAL

MASTER FREIGHT

AGREEMENT

covering

OVER-THE-ROAD AND LOCAL CARTAGE

EMPLOYEES OF PRIVATE, COMMON, CONTRACT

AND LOCAL CARTAGE CARRIERS

FOR THE PERIOD OF

APRIL 1, 1979 THROUGH MARCH 31, 1982

(emphasis added)

ARTICLE 8.

NATIONAL GRIEVANCE PROCEDURE

»--Section 6(a) Present terminals,

Change

of Opera-

tions

Change

of Opera-

tions

Committee

..-Change

of Opere-

tions

Seniority

breaking points or domiciles

shall not be transferred or

changed without the approval

of an appropriate Change of

Operations Comnittee. Such

Committee shall be appointed

in each of the Conference

Areas, equally composed of En-

ployer and Union representa-

tives. The Chenge of Opere-

tions Committee shell have the

authority to determine the

seniority ef the ersployees

affected and such determine-

tion shell be finel and bin-

ding.

-+-The Change of Operations

Committee shall also have jur-

isdiction for a period of

twelve (12) months following

the opening of a new terminal

to consider the redomicile of

employees who are laid off as

a direct result of such open-

ing of a terminal. This Con-

mittee shall elso have juris-

diction over the closing of

terminals in regard to sen-

iority...

(d) The Chenge of Operations

Committee established herein

shell heve the sole suthority

te determine questions of the

epplication ef seniority in

those situetions presented to

it and in connection therewith

the following generel rules

shell eppiy, subject, however,

Closing,

Partial

Closing

of Tera-

inals,

Transfer

of Work

to modification as provided by

Section 6g) below:

(1) When branches, teraminels,

divisions or operations ‘here-

inefter “terminal(s)™) are

closed or partially closed and

the work of such terminal(s)

is transferred, in whole or in

part, to another terminals)

the active employees ‘exclu-

ding those employees on ietter

ef layoff) at the closed or

partielly closed terminal‘s)

shell have the right to bid

into a master seniority rester

(road or city) comprised of

bidders from the active sen-

iority rosters of closed or

partially closed terminal(s)

in the order of their contin-

vous classification (‘road or

city) seniority. Continuous

classification seniority shell

be defined as that seniority

which the employee is current-

ly exercising and hes not been

broken in the menner provided

by Article 5, Section 1 or by

voluntary changes in domicile

not directed, approved or or-

dered by ea Change of Opera-

tions Comnmittee. Eaployees

shall bid from the combined

master seniority roster into

openings at the terminal (se)

into which work is being

transferred. Employees so

transferred shell be “dove-

teiled” into the eppropriete

active seniority roster at the

new terminelis) in the order

of their continuous classifi-

Opening of

Terainals

cation seniority. Such trans-

fers shell be permitted prior

to the recall of laid off

employees at such gaining ter~-

mineal(se). If and when addi-

tional employees ere required

in excess of those who formed

the combined active roster at

the point of redomicile, enm-

ployees on letter of layoff at

that location shall be re-

called. If recalled, such

employees shall be “dove-

tailed” with their continuous

classitication seniority.

In addition, the inactive sen-

iority rosters ‘employees who

are on letter of layoff) at

the terminal(s) from which

employees are being redomi-

ciled shall be “dovetailed”

into a master “laid-off” sen-

iority roster and such employ-

ees shall heve the same oppor-

tunities to transter to terna-

ineal(s) within the Area of the

Supplemental Agreement which

are afforded to employees cov-

ered by the provisions of

subparagraph (2)b below...

(3) When a new terminals)

is opened ‘except as a re~-

placement for existing opera~

tions or a new division in a4

locality where there are exis-

ting operations), the Eaployer

shell offer to those employ-

ees, if any, affected thereby

the opportunity to transfer to

regular positions in the new

terminal(s) in the order of

E-4

auch employee’s continuous

Classification (road or city)

seniority date as defined

herein. Upon arrival at such

new location, such eaployees

shell be “doveteiled”™ with

their continuous classitice-

tion (road or city) seniority

date together with other en-

ployees so transferring.

This provision is not intended

to cover situetions where

there is replacement of an

existing operation or where 4

new division is opened in a4

locality where there is an

existing terminal. In these

latter situations, those enm-

ployees laid off at the exis-

ting facilities shall have the

first opportunity for eaploy-

ment at the new operation in

accordance with their contin-

uous classification (road or

city) seniority date, end upon

arrivel shall be similarly

“dovetailed”. If all reguler

full-time positions are not

filled in this amanner, then

the provisions of the prece-

ding paragreph shell apply...

ARTICLE 45. GRIEVANCE MACHINERY AND UNION

LIABILITY

The Unions and the Employers

agree that there shell be no

strike, lockout, tie-up or le-

gal proceedings without first

using all possible saeans of

settlement, as provided for in

this Agreement, and in the Na-

E-5

Section 1.

General

tional Agreement, if applic-

able, of any controversy which

might arise.

Disputes shall first be taken

up between the Employer and

the Local Union involved.

Failing adjustment by these

parties, the following proce-

dure shall then apply:

(a) Where a Joint Locel Ares

Committee, by & majority vote,

setties ea dispute, no appeal

may be taken to the Joint

State Cartage Committee. Such

decisions will be finel and

binding on both parties.

(b) Where a Joint Local Area

Committee is unable to agree

or come to a decision on a

case, or where there is no

such committee, it shall, at

the request of the Union or

the Employer involved, be ap-

pealed to the Joint State

Cartege Committee at the next

reguler constituted session.

Minutes of the local committee

shell set forth the position

and facts relied on by each

party, but each perty may

supplement such minutes at the

heering before the Joint State

Cartage Committee.

(oc) Where s Joint Stete

Certege Committee, by 2 sajor-

ity vote, settles a dispute,

no appeal may be taken to the

Joint Area Cartage Committee.

Such decision will be final

and binding on both parties.

(d) Where a Joint State Car-

tage Committee is unable to

agree or come to a decision on

a case, it shall, at the re-

quest of the Union or the

Employer inolved, be appealed

to the Joint Area Cartage

Committee at the next regular

constituted session, unless

the parties mutually agree to

umpire handling. Matters per-

taining to interpretation are

not subject to umpire handling

at this level. Where the Joint

Ares Committee, by sasiority

vote, settles es dispute, such

decision shell be finsl and

binding on both parties with

no further appesl.

Ce) It is agreed that all

matters perteining to the in-

terpretation of any provisions

of this Agreement may be re-

ferred by the State Secretary

for the Union or the State

Secretery for the Employers at

the request of either the

Employer or the Union parties

to the issue with notice to

the other Secretary, to the

Joint Area Cartage Committee

eat any time for finel deci-

sion. At the request of the

Company or Union represente-

tive, the Joint Area Cartage

Committee shall be convened on

seventy-two (72) hours notice

to handle matters so referred.

(f) Deadlocked cases may be

submitted to umpire handling

if a majority of the Joint

E-7

Area Cartage Committee deter-

mine to submit such metter to

an umpire for decision. Other-

wise, either party shell be

permitted all legal or eco-

nomic recourse.

(g) Failure of any Joint Con-

mittee to meet without fault

of the complaining side, refu-

geal of either perty to subamit

to or appear at the grievance

procedure at any stage, or

failure to comply with any

final decision, withdrawe the

benefits of ARTICLE 45.

(h) The procedures set forth

herein may be invoked only by

the authorized Union represen-

tative or the Employer...

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.