Opposition — Brain v. Roadway Express, Inc.

ice -<supreme Court, U.S,

rit®yp

No. 83-1034 JAN 25 1904

LU. STEVAS,

IN THE

SUPREME COURT OF THE UNITED

OCTOBER TERM, 1983

GUY W. BRAIN, et al.,

Petitioners,

v.

ROADWAY EXPRESS, INC., et al.,

Respondents.

On Petition For Writ of Certiorari

to The United States Court of Appeals

For the Sixth Circuit

BRIEF IN OPPOSITION

For Respondents, Central Conference of Teamsters,

Truck Drivers Local Union No. 407, Joint Council No. 41,

Teamsters National Freight Negotiating Committee, and

Joint State Cartage Committee

SORRELL LOGOTHETIS

(Counsel of Record)

LOGOTHETIS and PENCE

111 West First Street — Suite 1100

Dayton, Ohio 45402-1156

(513) 461-5310

Attorney for Respondents,

Central Conference of Teamsters,

Truck Drivers Local Union No.

407,

Joint Council No. 41,

Teamsters National Freight

Negotiating Committee

Joint State Cartage Committee

—————EEEEEE—————————————E

COURT INDEX PRESS, INC. — 21/6 & Ninth Street, Cincinnati, Ohio 46202 — (513) 241-1450

QUESTIONS PRESENTED

(1) Whether the Court should review a determination

of a lower Court which held that Petitioners’ attempt to

exhaust internal union remedies against Local Union offi-

cials did not toll the applicable statute of limitations?

(2) Whether the Court should review a determination

of a lower Court according finality to the Local Union's

decision to withdraw grievances that had been settled and

to the decision of the Joint State Committee, held to have

had jurisdiction over the dispute?

(3) Whether the Court should review the decision of a

lower Court which concluded that Petitioners’ section 301

action was, as held by the District Court, time-barred under

the three-month state statute of limitations, applicable

under United Parcel Service, Inc. v. Mitchell, 457 U.S. 56

(1981), and also under the six-month federal period of

section 10(b), 29 U.S.C. § 160(b), application of which

was deemed appropriate in Delcostello v. International

Brotherhood of Teamsters, US. , 103 S.Ct. 2281

(1983) ?

(4) Whether the Court should address the question of

Delcostello’s retroactive application in this case, where the

question was not squarely presented on appeal and was

neither briefed for nor argued to the Court of Appeals?

INDEX

QUESTIONS PRESENTED

(1)

(2)

(3)

Whether the Court should review a deter-

mination of a lower Court which held that

Petitioners’ attempt to exhaust internal

union remedies against Local Union off-

cials did not toll the applicable statute of

limitations?

Whether the Court should review a deter-

mination of a lower Court according final-

ity to the Local Union's decision to with-

draw grievances that had been settled and

to the decision of the Joint State Commit-

tee, held to have had jurisdiction over the

dispute?

Whether the Court should review the de-

cision of a lower Court which concluded

that Petitioners’ section 301 action was, as

held by the District Court, time-barred

under the 3-month state statute of limita-

tions, applicable under United Parcel Ser-

vice, Inc. v. Mitchell, 457 U.S. 56 (1981),

and also under the six-month federal period

of section 10 (b) , 29 U.S.C. § 160 (b) , appli-

cation of which was deemed appropriate in

Delcostello v. International Brotherhood tof

Teamsters, —— US. ——, 103 S.Ct. 2281

(1983) ? rian be tel ee

Page

Pa be

= T "= eC

IV.

(4) Whether the Court should address the ques-

tion of Delcostello’s retroactive application

in this case, where the question was not

squarely presented on appeal and was

neither briefed for nor argued to the Court

of Appeals?

STATEMENT OF THE CASE

REASONS WHY THE PETITION FOR WRIT

OF CERTIORARI SHOULD BE DENIED

CONCLUSION

17

Vv.

TABLE OF AUTHORITIES

Cases: Page

American Pipe & Construction Co. v. Utah,

414 U.S. 538 (1974) 7

Badon v. General Motors Corp., 679 F.2d 936

(6th Cir. 1982) 15, 16

Baldini v. Local Union No. 1095, 581 F.2d 145

(7th Cir. 1978) 8

Brady v. Transworld Airlines, 223 F.Supp. 361

(D. Del. 1963), aff'd, 401 F.2d 87 (3d Cir. ”

1968) , cert. denied, 393 U.S. 1048 (1969) 8

Burnett v. New York Central Railroad Co.,

380 U.S. 424 (1965) 7

Buzzard v. Local Lodge 1040, 480 F.2d 35

(9th Cir. 1973) 8

Chambers v. Local Union 639, 578 F.2d 375

(D.C. Cir. 1978) 8

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) 14

Clayton y. Automobile Workers, 451 U.S. 679

(1981) ; 6, 7,8

Delcostello v. International Brotherhood of

Teamsters, —— U.S. ——, 103 S.Ct. 2281

(1983) a . 5, 18, 14, 15, 16

Fizer v. Safeway Stores, Inc., 586 F.2d 182

(10th Cir. 1978) re 8

Geddes v. Chrysler Corp., 608 F.2d 261 36

Ca SOT. . u vis hide 0 aos 6, 9

General Truck Drivers v. Riss & Co., Inc.,

orm wa Bie CROCS). Peis haan Oke ll

VI.

Glus v. Brooklyn Eastern Terminal, 359 US.

231 (1959) 7

Holmburg v. Armbrecht, 327 U.S. 392 (1946) 7

Humphrey v. Moore, 375 U.S. 335 (1964) 1]

Imel v. Zohn Mfg. Co., 481 F.2d 181 (10th Cir.

1973), cert. denied, 415 U.S. 915 (1974) 8

Lawson v. Truck Drivers Local Union No. 100,

698 F.2d 250 (6th Cir. 1983) 15, 16

Morris v. Werner-Continental, 466 F.2d 1185

(6th Cir. 1972), cert. denied, 411 U.S. 965

(1973) 11

Pitts v. Frito-Lay, Inc., 700 F.2d 330 (6th Cir.

1983) . 15

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

(1966) - 13

United Parcel Service v. Mitchell, Inc., 451 US.

56 (1981) 13, 14, 15, 16

Willetts v. Ford Motor Co., 583 F.2d 852 (6th

Cir. 1978) 8

Winter v. Local Union No. 639, 569 F.2d 146

(D.C. Cir. 1977) 8

Statutes:

Section 301 of the Labor Management Relations

Act of 1947, as amended, 29 U.S.C. § 185 1, 7, 8, 9, 15

Section 10 (b) of the National Labor Relations Act,

29 U.S.C. § 160 (b) . 5, 13-14

Section 203 (d) of the National Labor Relations

Act, 29 U.S.C. § 173 (d) : 13

Ohio Rev. Code § 2711.13

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

No. 83-1034

GUY W. BRAIN, et al.,

Petitioners,

v.

ROADWAY EXPRESS, INC., et al.,

Respondents.

On Petition For Writ of Certiorari

to The United States Court of Appeals

For the Sixth Circuit

BRIEF IN OPPOSITION

For Respondents, Central Conference of Teamsters,

Truck Drivers Local Union No. 407, Joint Council No. 41,

Teamsters National Freight Negotiating Committee, and

Joint State Cartage Committee

STATEMENT OF THE CASE

This action arose under section 301 of the Labor Man-

agement Relations Act of 1947, as amended, 29 U.S.C.

§ 185. Petitioners, all former dockworkers employed at the

Cleveland, Ohio terminal of Respondent, Roadway Ex-

i

2

press, Inc. (hereinafter sometimes referred to as “Road-

way” or “Company’’), sought relief from Roadway and

from the following additional parties, all of which are Re-

spondents herein: Truck Drivers Local Union No. 407

(hereinafter referred to as “Local 407”) , a labor organiza-

tion in which Petitioners held membership and which, with

Roadway, was signatory to the National Master Freight

Agreement and Central States Area Local Cartage Supple-

mental Agreement, effective April 1, 1979 to March 31,1982

(hereinafter referred to as the ‘““NMFA” or “contract’’) ;

Teamsters Joint Council No. 41 (hereinafter referred to

as “Joint Council”); Teamsters National Freight Nego-

tiating Committee (hereinafter referred to as “Negotiating

Committee’’) ; and the Freight Division, Central Confer-

ence of Teamsters (hereinafter referred to as the “Central

Conference’) .

In 1977, Roadway opened a terminal in Copley, Ohio. In

the spring of 1978, Roadway began transferring some of

its work from its Cleveland terminal to other terminals in

its system, including its Copley terminal. In May, 1978,

nine (9) of the Petitioners and several other dockworkers

filed grievances with Local 407 protesting the movement

of work to the Copley terminal and requesting, inter alia,

back pay. These grievances alleged that work was being

transferred to the Copley terminal without proper auth-

orization from the Change of Operations Committee as

required under the NMFA.

Pursuant to the grievance machinery set forth in the

NMFA, the grievances were processed to the local level

hearing, where they were deadlocked. Thereafter, the

grievances advanced to the Joint State Committee level of

the grievance procedure. The grievances were also dead-

locked at the Joint State Committee level and thus were

to advance to the Joint Area Committee for disposition. The

6+

nl.

3

grievances were scheduled to be heard by the Joint Area

Committee on September 22, 1978.

However, the Joint State Committee, composed of an

equal number of management and labor members, sent

the deadlocked grievances back to the parties for resolution.

Local 407 and Roadway settled the grievances on Septem-

ber 14, 1978, several days before the scheduled hearing

before the Joint Area Cartage Committee. Roadway paid

eight (8) hours wages to three dockworkers who had not

been called for work on the days in question.

Roadway continued to transfer work from the Cleveland

terminal to other terminals. In December of 1978, workers

at the Cleveland terminal began to be laid off. Five (5) of

the Petitioners filed grievances at various times in January,

February and June, 1979, alleging that the work being

transferred to the Copley terminal was without proper

authorization from the Change of Operations Committee

and protesting their respective layoffs.

These grievances were deadlocked at the Joint Local

Committee level. A hearing before the Joint State Com-

mittee was conducted on July 19, 1979. Concluding that

there has been no violation of the collective bargaining

agreement with respect to the transfer of work, the Joint

State Committee denied the grievances. Five of the grie-

vants (5), four of whom are Petitioners herein, partici-

pated in the hearing and were present when the decision

denying their grievances was announced.

On or about November 15, 1979, Petitioners filed in-

ternal union charges against three officers and a business

agent of Local 407. These charges alleged that the officers

and agent had breached the duty of fair representation and

had violated the Constitution of the International Broth-

erhood of Teamsters, Chauffeurs, Warehousemen and Help-

aor: al

®, > at deg

oO ee ee ee ee BS re Lr’

4

ers of America (hereinafter referred to as I.B.T.), and the

Bylaws of Local 407, with regard to the handling of the

grievances in the transfer of work dispute with Roadway.

No internal union charges were filed against the Negotiat-

ing Committee, the Joint State Committee, the Central

Conference, or any of their respective officers.

The internal union charges were processed in accordance

with the appeals procedure set forth in the I.B.T. Constitu-

tion. After the charges were dismissed, Petitioners ap-

pealed to the General Executive Board of the I.B.T. How-

ever, on December 18, 1980, while the internal union

charges were pending before the General Executive Board

of the I.B.T., Petitioners commenced this lawsuit. Subse-

quently, on January 30, 1981, the General Executive Board

denied Petitioners’ charges against the Local 407 officials.

The gravamen of the Complaint was that Roadway had

breached the collective bargaining agreement by transfer-

ring work from the Cleveland terminal to its Copley ter-

minal without approval of the contractually established

Change of Operations Committee and that the subsequent

transfer of Petitioners to the Copley terminal without

“dovetailing’”’ them into Copley’s seniority list further

violated the contract. Correspondingly, the Complaint also

alleged that the defendant labor organizations breached

their duty of fair representation by withdrawing Petition-

ers’ grievances in September of 1978, by ineptly handling

the grievances over the transfer of work to Copley, and by

permitting the Company to transfer Petitioners to Copley

without full seniority rights.

Respondents filed their respective Answers at various

times between January 12, 1981 and March 30, 1981. On

August 17, 1981, all six (6) Respondents filed Motions to

Dismiss or, in the Alternative, for Summary Judgment on

5

the ground that Petitioners’ section 301 action was time-

barred under the applicable statute of limitations. On

October 13, 1981, Petitioners filed a Memorandum in Op-

position to Respondents’ respective Motions.

On December 3, 1981, the District Court issued a Memo-

randum of Opinion and Order pursuant thereto, granting

all Respondents’ Motions for Summary Judgment and dis-

missing Petitioners’ case. The District Court held that

Petitioners’ section 301 action was barred under Ohio’s

three-month statute of limitations for actions to vacate

arbitration awards, Ohio Rev. Code § 2711.13.

On December 31, 1981, Petitioners filed a Notice of

Appeal. On September 23, 1983, the United States Court

of Appeals for the Sixth Circuit issued its Order and

Opinion affirming the District Court’s dismissal. Although

concluding that the District Court had correctly granted

summary judgment because Petitioners had failed to com-

mence their suit within the 90-day period of Ohio Rev.

Code § 2711.13, the Sixth Circuit Court of Appeals, relying

on Delcostello v. International Brotherhood of Teamsters,

__. US. ___, 103 Supreme Court 2281 (1983), held

that Petitioners’ action, filed some seventeen (17) months

after their claim arose, was time-barred under the six-

month statute of limitations set forth in Section 10 (b) of

the National Labor Relations Act, 29 U.S.C. § 160 (b). It

is this decision for which Petitioners now seek a Writ of

Certiorari.

6

REASONS WHY THE PETITION FOR WRIT

OF CERTIORARI SHOULD BE DENIED

I

The first set of grievances filed to protest Roadway’s

transfer of work from Cleveland to Copley, Ohio was set-

tled and withdrawn by Local 407 in September, 1978. The

Joint State Committee denied the second set of grievances

on July 19, 1979. Thereafter, on November 15, 1979, some

fourteen (14) months after resolution of the first set of

grievances, and almost four (4) months after the resolution

of the second set, Petitioners filed internal union charges

against officials of Local 407. Petitioners argue that this

belated attempt to exhaust internal union remedies against

officials of one of the six (6) Respondents, undertaken

prior to this Court’s decision in Clayton v. UAW, 451

U.S. 679 (1981), should have tolled the statute of limita-

tions.

Using this Court’s approach in Clayton, the District

Court held that the statute of limitations was not tolled be-

cause Petitioners’ internal union procedures were inade-

quate either to reactivate their grievances or to award them

the substantive relief sought. The District Court bolstered

its conclusion against tolling by reference to Geddes v.

Chrysler Corp., 608 F.2d 261 (6th Cir. 1979) , which fore-

shadowed Clayton by holding that exhaustion of internal

union remedies is not a defense available to an employer.

The Sixth Circuit Court of Appeals, without discussion,

affirmed the District Court's rejection of Petitioners’ tolling

argument. Neither the District Court nor the Court of

Appeals erred in rejecting Petitioners’ argument that their

attempt to exhaust internal union procedures tolled the

applicable statute of limitations.

It is well settled that “under certain circumstances not

«

7

inconsistent with the legislative purpose”, federal courts

have the power to hold that a statute of limitations is tolled.

American Pipe & Construction Co. v. Utah, 414 US. 538,

559 (1974). See also, Burnett v. New York Central Rail-

road Co., 380 U.S. 424, 427 (1965). “[T]his Court has not

hesitated to find the statutory period tolled or suspended”

in cases “where the plaintiff has refrained from commenc-

ing suit during the period of limitations because of induce-

ment by the defendant,” .. . “or because of fraudulent

concealment... .” American Pipe & Construction Co.,

supra, 414 U.S. at 559, citing, Glus v. Brooklyn Eastern

Terminal, 359 U.S. 231 (1959); and Holmburg v. Arm-

brecht, 327 U.S. 392 (1946).

However, none of the factors triggering equitable tolling

are present in the instant case. At the time Petitioner's

cause arose, there were numerous cases demonstrating the

absence of concensus among the circuits as to whether ex-

haustion of internal union remedies was a prerequisite for

the successful prosecution of a section 301 action. Further-

more, there is no evidence in this case that Petitioners

did, in fact, rely upon the exhaustion principle and did, in

fact, forego filing this action during, the pendency of the

internal union appeals procedures. To the,contrary, Peti-

tioners’ actual conduct belies any such assertion.

In Clayton, this Court resolved the question “‘whether an

employee should be required to exhaust internal union ap-

peals procedures before bringing suit against a union or

employer under § 301,” 451 U.S. at 681, by holding that,

except under very limited circumstances, it was not a pre-

requisite to the maintenance of section 301 action. This

Court’s decision did not mark a radical departure from

settled case law or a clean break from a long line of prece-

dent. On the contrary, this Court granted certiorari in

Clayton because the circuits were divided on the issue of

8

whether exhaustion of internal union procedures was re-

quired before bringing suit under section 301. Id. at 684

n.5. See also, Chambers v. Local Union 639, 578 F.2d 375

(D.C. Cir. 1978) ; Baldini v. Local Union No. 1095, 581

F.2d 145 (7th Cir. 1978); Buzzard v. Local Lodge 1040,

480 F.2d 35 (9th Cir. 1973).

Prior to Clayton, some courts had fairly iron clad exhaus-

tion rules. See, e.g., Imel v. Zohn Mfg. Co., 481 F.2d 181

(10th Cir. 1973) , cert. denied, 415 U.S. 915 (1974). How-

ever, many courts excused a failure to exhaust internal

union remedies in a variety of circumstances. For example,

some courts excused exhaustion where the internal union

procedures were inadequate to produce the results sought,

such as reactivation of the grievance. See, e.g., Chambers v.

Local 639, 578 F.2d 375 (D.C. Cir. 1978). Other courts

did not require exhaustion where union officials hearing

the appeal would be so hostile to the employee that he or

she could not hope to be given a fair hearing. See, ¢.g.,

Willetts v. Ford Motor Co., 583 F.2d 852 (6th Cir. 1978) ;

Fizer v. Safeway Stores, Inc., 586 F.2d 182 (10th Cir.

1978) ; Winter v. Local Union No. 639, 569 F.2d 146 (D.C.

Cir. 1977). Still other courts had held that the exhaustion

doctrine was only applicable in cases involving purely in-

ternal union matters. See, e.g., Brady v. Transworld Air-

lines, 223 F.Supp. 361 (D. Del. 1963), aff'd, 401 F.2d 87

(3d Cir. 1968) , cert. denied, 393 U.S. 1048 (1969).

The existence of multiple approaches and varying rules

among the Circuit Courts of Appeal at the time Petitioners

filed internal union charges clearly undermines their argu-

ment that exhaustion of such remedies was a necessary pre-

requisite to maintenance of a section 301 action. At that

time, exhaustion was not a prerequisite for maintenance of

this action; therefore, Petitioners’ belated attempts to ex-

9

haust internal union remedies as against officials of one of

the six Respondents did not toll the statute of limitations.

In addition, Petitioners were put on notice soon after

their grievances were denied by the Joint State Committee

that the Sixth Circuit Court of Appeals had severely limited

the exhaustion rule. In Geddes v. Chrysler Corp., 608 F.2d

261 (6th Cir. 1979) , the Court held that a plaintiff's failure

to exhaust internal union remedies was not available to the

employer as a defense in a section 301 action for breach of

contract. Geddes, which was decided prior to the filing of

Petitioners’ internal union charges, cast an unmistakable

shadow of doubt over the applicability of the internal union

exhaustion requirement as a defense to the union in a

section 301 action.

Petitioners would have this Court believe that they were

convinced that exhaustion of internal union remedies was

a necessary prerequisite to the maintenance of a successful

section 301 action. However, the chronology of Petitioners’

collective activities with regard to the internal union

charges exposes their own lack of conviction regarding the

necessity of exhaustion. Although professing to believe that

exhaustion of internal union remedies was a necessary pre-

requisite, Petitioners did not wait to file suit until after the

I.B.T.’s General Executive Board had reached a final de-

cision on Petitioners’ internal union charges. On the con-

trary, Petitioners filed their section 301 suit on December

18, 1980, approximately six (6) weeks prior to the decision

of the I.B.T. General Executive Board; over two (2) years

after the first set of grievances were settled by Local 407;

and approximately one and one-half years after the Joint

State Committee denied their second set of grievances.

Petitioners’ own conduct is inconsistent with the argument

that they have advanced throughout these proceedings with

regard to the tolling of the statute of limitations.

10

Moreover, it bears mentioning that the record itself is

devoid of any evidence indicating that Petitioners actually

did forego the filing of a lawsuit based upon a determina-

tion that exhaustion of internal union remedies was re-

quired. In their Petition, as in their earlier written submis-

sions, Petitioners only argue that reasons existed upon

which they could rely, and not that they did in fact rely on

any of those reasons.

Finally, implicit in Petitioners’ argument is that the filing

of internal union charges against individual officers of Local

407 was sufficient to toll the statute of limitations period

for all of the Respondents. Such an argument is totally

unfounded and lacking in legal efficacy. No charges were

filed against the Negotiating Committee, the Joint State

Committee, the Central Conference, or any of their respec-

tive officers. No agency relationship existed between any

of these Respondents and Local 407. Since Petitioners did

not file internal union charges against any of these Respon-

dents, their implicit argument that the statute of limitations

should have been tolled with respect to these Respondents

is wholly without merit.

Petitioners did not delay the filing of the instant action

on the basis of well settled and uniform case law. They did

not refrain from filing suit because of any inducement or

misrepresentation or concealment on the part of any of the

Respondents. They were, in no way, prevented from as-

serting their rights by filing suit within the applicable

statute of limitations. Therefore, the lower Courts cor-

rectly determined that Petitioners’ attempt to exhaust in-

ternal union remedies against four (4) officials of Local

407 did not toll the statute of limitations in this case.

1]

II

Petitioners argue that the doctrine of finality was improp-

erly accorded to the July 19, 1979 decision of the Joint

State Committee, denying the second set of grievances be-

cause the Joint State Committee “was not the proper forum

to make such a determination.” Petition for Writ of Certio-

rari, 27-28. They contend that the subject of those griev-

ances was within the sole and exclusive jurisdiction of the

Change of Operations Committee pursuant to Article VIII,

Section 6(a) and (d) of the NMFA. See, Appendix E,

Petition for Writ of Certiorari.

Joint Committee awards rendered pursuant to the truck-

ing industry master agreements have long been afforded the

full and binding effect of arbitration awards. General Truck

Drivers v. Riss & Co., 372 U.S. 517 (1963) ; Humphrey v.

Moore, 375 U.S. 335 (1964); Morris v. Werner-Continen-

tal, 466 F.2d 1185 (6th Cir. 1972), cert. denied, 411 USS.

965 (1973). Petitioners contend that the Joint State Com-

mittee’s decision of July 19, 1979, is undeserving of finality

because the Committee lacked jurisdiction over the griev-

ances. They placed total reliance on Article 8, Section 6 (a)

and (d) of the NMFA to support this contention.

However, as determined by the District Court, Petition-

ers’ reliance is misplaced. As found by the District Court,

and left undisturbed by the Sixth Circuit Court of Appeals,

the Joint State Committee is vested with the power to de-

cide issues of seniority pursuant to Article 8, Section 6 (g)

of the NMFA. Section 6(g), which Petitioners conspicu-

ously omitted from Appendix E to their Petition, provides:

Article 8, Section 6

Intentof (g) The parties acknowledge that the

Parties above rules are intended solely as general

standards and further that many factual

a

12

uations will be presented which necessitate

different application, modification or

amendment. Accordingly, the parties ac-

knowledge that questions of the application

of seniority rights may arise which require

different treatment and it is anticipated and

understood that the Employers and Unions

jointly involved and/or the respective griev-

ance committees may mutually agree to

such disposition of questions of seniority

which in their judgment is appropriate

under the circumstances. The Change of

Operations Committees, as provided here-

in or in the Supplemental Agreements, shall

have the authority to determine the applica-

tion of seniority in those situations pre-

sented to them. In all cases the seniority

decisions of the Joint Committees, includ-

ing the Change of Operations Committees

and Subcommittees, established by the Na-

tional Master Freight Agreement and the

respective Supplemental Agreements shall

be final and binding.

Petitioners’ argument that the decision of the Joint State

Committee is undeserving of finality is predicated on their

stubborn refusal to read Article 8, Section 6 in its entirety.

Pursuant to Article 8, Section 6(g), the Joint State Com-

mittee had full authority to hear the second set of griev-

ances and to render a decision thereon. That decision, is-

sued by the Joint State Committee on July 19, 1979, was

final and binding, both pursuant to the express language

of the contract and under the prevailing case law.

Petitioners also contend that the adjustment of the first

set of grievances in September of 1978 should not be ac-

corded finality. This argument is patently ridiculous.

Taken to its logical conclusion, Petitioners’ argument

13

would mean that neither an employer nor a union would

be entitled to enter into any sort of final and binding

agreement or a resolution of the grievance short of an ar-

bitration or a Joint Committee decision. It would also

mean that grievances adjusted without resort to arbitration

or to Joint Committees tor disposition could be reactivated

indefinitely. This is obviously inconsistent with the fed-

eral labor policy in favor of ‘‘relatively rapid disposition of

labor disputes.” UAW v. Hoosier Cardinal Corp., 383 U.S.

696, 707 (1966), quoted in, United Parcel Service, Inc. v.

Mitchell, 451 U.S. 56, 63 (1981). Petitioners’ argument

also flies in the face of the Congressional mandate, under

which “final adjustment by a method agreed upon by the

parties is declared to be the desirable method for settle-

ment of grievance disputes arising over the application or

interpretation of an existing collective bargaining agree-

ment.”” Section 203(d) of the National Labor Relations

Act, 29 U.S.C. § 173 (d).

The District Court and the Sixth Circuit Court of Ap-

peals correctly accorded finality to the withdrawal of the

first set of grievances in September, 1978, after they were

settled by Roadway and Local 407. The District Court

and the Sixth Circuit Court of Appeals also correctly ac-

corded finality to the July 19, 1979 decision of the Joint

State Committee, denying Petitioners’ second set of griev-

ances.

Ill

Petitioners contend that the Court of Appeals erred in

applying Delcostello v. International Brotherhood of Team-

sters, US. , 103 S. Ct. 2281, 2285 (June 8, 1983),

wherein this Court held that the six-month federal limita-

tions period set forth in Section 10(b) of the National

14

Labor Relations Act, 29 U.S.C. § 160 (b), “should be the

applicable statute of limitations governing the [section 301]

suit, both against the employer and against the union.”

Petitioners then launch into an analysis of the question

whether Delcostello should, under the tripartite test of

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), be applied

retroactively.

Respondents submit that Petitioners’ argument regard-

ing the retroactive application of Delcostello is, in the con-

text of this case, purely academic. The dismissal of Peti-

tioners’ section 301 action on timeliness grounds in the

case at bar will remain totally unaffected even if Petitioners’

argument against the retroactive application of Delcostello

were determined to be meritorious. In reality, if Delcos-

tello were to be applied prospectively only, a matter upon

which these Respondents expressly decline to comment

at this juncture, Petitioners’ suit would nonetheless be time

barred under the 90-day state statute of limitations, Ohio

Rev. Code § 2711.13, as mandated under United Parcel

Service, Inc. v. Mitchell, 451 U.S. 56 (1981), the predeces-

sor to Delcostello.

Mitchell was decided during the pendency of this case

before the District Court. All of the Respondents moved

to amend their answers to assert the statute of limitations

defense in light of Mitchell and the District Court granted

their respective Motions. In sustaining Respondents’ Mo-

tions for Summary Judgment, the District Court, relying on

Mitchell, held that the statute of limitations applicable to

this case was Ohio Rev. Code § 2711.13, the 90-day provi-

sion for actions to set aside arbitration awards, and ac-

cordingly, determined that Petitioners’ Complaint, filed in

excess of 17 months and as much as 27 months after their

claims arose, was untimely filed.

15

On appeal, the Sixth Circuit Court of Appeals approved

the District Court’s reliance on Mitchell and upheld its

dismissal of the action on the ground that Petitioners had

failed to bring their suit within the 90-day period of

§ 2711.13. Only after it had deemed the District Court's

disposition of the case correct under the 90-day state pro-

vision did the Sixth Circuit address the alternative basis

for afirmance under Delcostella.

Petitioners apparently believed that if Delcostello is ap-

plied prospectively only, the timeliness of this suit will be

governed not by Mitchell, but by the confused body of law

antedating the Mitchell decision. They apparently take

the view that Delcostello, while not to be applied retro-

actively, nonetheless renders Mitchell a nullity for all pur-

poses or at least for purposes of this lawsuit.

Respondents submit that the fallacy of Petitioners’ rea-

soning is self-evident. This Court certainly made no sug-

gestion in Delcostello that Mitchell was an aberration to be

treated as if it had never been rendered. No where in

Delcostello did this Court hint that pre-Mitchell statutes

of limitation should govern the timeliness question in pend-

ing section 301 actions. Petitioners have cited no authority

in support of this peculiar notion.

In Lawson v. Truck Drivers Local Union 100, 698 F.2d

250 (6th Cir. 1983), rendered some eight (8) months

before the Court of Appeals decision in the instant case,

the Sixth Circuit held that Mitchell should be applied to

section 301 actions pending against employers and unions.

Finding none of the obstacles present under Michigan law

to prevent application of that state’s statute of limitations

for vacating arbitrations awards, see, Badon v General

Motors Corp., 679 F.2d 936 (6th Cir. 1982), and Pitts v.

Frito-Lay, Inc., 700 F.2d 330 (6th Cir. 1983), the Lawson

16

court held that “Mitchell applies retroactively to pending

cases and . . . under Mitchell and Badon the Ohio statute

of limitations governing suits to vacate arbitration awards

applies to unfair representation actions against unions as

well as to wrongful discharge actions against employers.

698 F.2d at 252.

Respondents submit that this section 301 suit is time-

barred regardless of whether the timeliness question is de-

termined by reference to the six-month federal provision of

section 10(b), as mandated under Delcostello, or to the

90-day provision of Ohio Rev. Code § 2711.13, as man-

dated under Mitchell, and as applied in Ohio. See, Lawson

v. Truck Drivers Local Union 100, supra, 698 F.2d 250.

Accordingly, the question whether Delcostello should be

applied retroactively is one that will not affect the ultimate

outcome of the case at bar and thus is not in the iia. bea

posture for review at the present time.

IV

The decision of the United States Court of Appeals for

the Sixth Circuit, affirming dismissal of this lawsuit on

statute of limitations grounds was consistent with prevailing

law. The Respondents contend that the Court should de-

cline to review that decision for any reason. Respondents

further contend that review of the question whether Del-

costello should be applied retroactively is particularly in-

appropriate under the facts and circumstances of this case.

Obviously, the question of Delcostello’s retroactive ap-

plication was not an issue on appeal. Moreover, this ques-

tion was neither briefed in nor argued to the lower Court.

Finally, the lower Court, itself, did not address the question

of Delcostello’s retroactive application in its decision, af-

firming the dismissal of this lawsuit. This question is being

17

squarely presented for the first time in the Petition for

Writ of Certiorari. Respondents submit that the Court

should decline to review this question which was not pre-

sented to the lower Court and which the parties herein

would be arguing for the fiirst time in this the Court of

last resort.

CONCLUSION

For all of the foregoing reasons, it is respectfully sub-

mitted that the Petition for Writ of Certiorari should be

denied.

Respectfully submitted,

LOGOTHETIS AND PENCE

Sorrell Logothetis

Attorney for Respondents, Central

Conference of Teamsters, Truck

Drivers Union Local No. 407,

Joint Council No. 41, Teamsters

National Freight Negotiating

Committee, Joint State Cartage

Committee