Petition — Teamsters Local Union No. 36, Building Material & Dump Truck Drivers v. Edwards

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Office - Supreme Court. U.S

88-121g | Fiteo

JAN 23 1984

ALEXANDER L. STEWAS,

No. - CLERK

In the Supreme Court of

the

United States

October Term, 1983

TEAMSTERS LOCAL UNION NO. 36,

BUILDING MATERIAL AND DUMP

TRUCK DRIVERS,

Petitioner,

vs.

LEE O. EDWARDS, JR.,

Respondent.

Petition For Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit

RICHARD D. PROCHAZKA

A PROFESSIONAL CORPORATION

Attorney at Law

2918 Fifth Avenue, Suite 302

San Diego, California 92103

(619) 296-7677

By Richard D. Prochazka

Counsel for Petitioner Local 36

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Questions Presented for Review.

(1)

(2)

WHETHER THE NINTH CIRCUIT ERRED

IN REFUSING TO APPLY MITCHEL

TO PETITIONER UNION.

WHETHER THE NINTH CIRCUIT ERRED

IN REFUSING TO APPLY THE 10(b)

PERIOD AS THE LIMITATIONS PERIOD

TO CASES PENDING PRIOR TO THIS

COURT'S DECISION IN DELCOSTELLO.

Parties To The Proceeding.

The following are parties to this

proceeding:

(1) Lee O. Edwards, Jr.

(2) Teamsters Local Union No. 36,

Building Material & Dump Truck

Drivers

(3) Asphalt, Inc.

TABLE OF CONTENTS

Page

Questions Presented for Review ........ i

Parties to the ee i

NE tcc c cece ii

Se MER EEOS 5... okt kt tcc a cee vi

Petition for Writ of Certiorari to the

United States Court of Appeals for

ee es. ccc cccce

NTS Soe bs x cccccccccccccccce

C. Proceedings and Disposition

The Ninth Circuit's Refusal to Apply

Mitchell to the Union is Contrary

to Decisions by this Court .......

iii

Page

II.

There Now Exists an Express Conflict

Among the Circuits as Whether Mit-

chell Should be Applied to

Unions ....... cocccccccecscccecccccs LG

III.

The Ninth Circuit's Refusal to

Retroactively Apply DelCostello is

Contrary to Decisions by This

COUFE cccccccccccccescescccsesescsee 46

IV.

There Now Exists an Express Conflict

Among the Circuits as to Whether

DelCostello Should be Applied

Retroactively ..cccccccccccccsseses 20

GCOBGRMREGR 6 co cccecedcscorsesedceedsésetes. Oe

INDEX TO APPENDICES

Page

Appendix i. Opinion of the Ninth

CePeUbe. Gwsu ew tchs cuban eee App. p. l

Appendix ii. Opinion of the District

COURS 6.6 os 0 0c 6 0s e608 8 5s 6 tae 24)

Appendix iii. Labor Management Re-

lations Act, 29 USC §185— eeeweate 31

Appendix iv. California Civil

ProceGure Code $1208 .ccccesssne 34

Appendix v. Stipulation re Dismissal

of Case as to Defendant Asphalt,

ine. and Order THOTeOn |. <<. cece 35

Appendix vi. California Civil

Procedure Code §338(1) ......... 37

Appendix vii. Union's June 27, 1983

Letter to the Ninth Circuit Re-

questing Consideration of Del-

Coste io Berision os si beescaweus 38

Page

Appendix viii. Cases Within the Ninth

Circuit Affected by the Edwards

Decision eneee nee ere ee eeeeeeeeeeeee 42

TABLE OF AUTHORITIES

Assad v. Mount Sinai Hospital,

703 F2d 36(2nd Cir. 1983).,.......

Badon v. General Motors Corp.,

679 F2d 93(6th Cir. 1982).....2.0-

Chevron Oil Company v. Huson,

404 US 97 (1971). cc cccccceene 8, 20

Corning Glass Works v. Brennan,

S17 US 186, 19) (P94) wc vac cataes

Curtis v. Teamsters Local 299,

Tame ee 260tGth Cis: BIOS} as.< ce wen

D'Andrea v. American Postal Workers,

700 Fae s20toth Cit, 1963) «o«<«0«e8

DelCostello v. Teamsters,

US 103 S.Ct. 2281(1983). 8,9,li,

3, 10, EF 2s

20, 2i.» 22, -823

District 1199, National Union of

Hospital & Healthcare Employees

v. Assad,

_US__ (1983) 104 S.Ct. re eee

Edwards v. Sea-Land Service, Inc.

678 F2d 1276 (Sth Cir... 1962)... 18,

Ernest v. Indiana Bell] Telephone Co.

717 £2d 1036(7th Cir. 1983) secsece

vii

TABLE OF AUTHORITIES -- Continued

Page

Hand v. International Chemical

Workers Union,

712 F2d 1350 (llth Cir. 1983),

el PR re ee 22

International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and

Helpers Local 988 v. Edwards,

_ US (1983) 103 S.Ct. 3104... 17, 18

Lawson v. Truck Drivers, Chauffeurs

and Helpers, etc.

698 F2a 250 (6th Cir. 1963) .<«ccees 15

Leach v. U.S. Postal Se.vice,

_ USB (Oct. 3, 1983), 104

Bects Clee cbs h6 0a ae Ree sees eke ee is

McNaughton v. Dillingham Corp.,

707 P2d 1042(9th Cir. 1983) ..ccec 14

Metz v. Tootsie Roll Industries,

7a. 826 299(7Tth Cixk. LOSSl «2200s ee 21

Perez v. Dana Corp.,

718 F2d 581(3rd Cir. 1983)...ccce- 20

Price v. Southern Pacific Trans-

portation Company,

586 F2d 750(9th Cir. 1978)........ 8

Rogers v. Lockheed-Georgia Co.,

_ F2d_ (llth Cir. Dec. 5, 1983),

116 GRE 3660. ccccscsvescnscsecs ose

Singer v. Flying Tiger Line, Inc., =

652 F2d 1349(9th Cir. 1961)....c-0- 16

Storck v. Teamsters Local 600,

ree» MSh Te, Bt oe) of} ree: |

Vili

TABLE OF AUTHORITIES -- Continued

Page

United Parcel Service, Inc. v.

Mitchell,

451 OS. 560439864). 6, 810,

Re, if 15,

STATUTES

re oc. SE E58'(1) CEST ovata eee 3

oe -0.5,.6;. Si29i-240. 2c oe in aaa ela eee .- 4

Labor-Management Relations Act,

oe G50. $1603. 3.22 ee S,1252335 498

42: Us S.€.. $283 -€8976)— 2 A

OTHER

California Civil Procedure

$338: (2) (Heet’ so, U9S2) vaca co S, id

SL 200 (Mast's FSEZ) cic cekaveks 6, 10

No. -

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1983

Teamsters Local Union No. 36,

Building Material and Dump

Truck Drivers,

Petitioner,

Vs.

Lee O. Edwards, Jr.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ee ——— eee ee ee

Petitioner Building Material and Dump

Truck Drivers, Teamsters Local Union No. 36

of the International Brotherhood of Teams-

ters, Chauffeurs, Warehousemen & Helpers of

America, hereafter “Union", prays that

certiorari issue to review the *udqment of

the United States Court of Appeals for the

Ninth Cireuit in the above-entitled case.

OPINIONS BELOW

The opinion of the Ninth Circuit Court

of Appeals is, to date, not officially re-

ported. The opinion is unofficially report-

ed at 114 LRRM 3227.1

The memorandum decision of the,United

States District Southern District of Calif-

lithe Opinion of the Ninth Circuit is

set forth in full in Appendix i.

ornia is neither officially nor unofficially

reported. *

JURISDICTION

On November 3, 1983, the Ninth Circuit

Court of Appeals entered its judgment.

The jurisdiction of this Court is in-

voked pursuant to 28 USC §1254(1) (1976).

STATUTORY PROVISIONS INVOLVED

29 USC §185(1976) of the Labor Manage-

ment Relations Act, hereafter "Act", states

in pertinent part?:

"(a) Suits for violation of

contracts between an employer and

a labor organization representing

employees in an industry affecting

commerce as defined in this chapter,

or between any such labor organiza-

tions, 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."

2The opinion of the District Court

is set forth in full in Appendix ii.

3the statute is set out in full in

Appendix iii.

STATEMENT OF THE CASE

A. Preliminary Statement.

This case came to the Ninth Circuit on

Plaintiffs/Appellants' appeal of the memor-

andum decision of the U.S. District Court

for the Southern District of California.

The basis for jurisdiction in the Ninth

Circuit was 28 USC §1291(1982).

B. Statement of the Facts.

Edwards is a member of a_ bargaining

unit which is covered by a collective bar-

gaining agreement between Local 36 and

Asphalt, Inc. Said collective bargaining

agreement provides for, among other things,

a grievance/arbitration procedure.

On or about December 24, 1980, Asphalt

terminated Edwards who thereafter filed a

grievance with the Union.

On February 9, 1981, pursuant to said

collective bargaining agreement, a Joint

Conference Board considered Edwards' grie-

vance and in a final decision rejected it

as untimely.

Edwards, cognizant of additional grounds

for challenging his termination, filed

another grievance in March 1981 with the

Union. This second grievance was also re-

jected by the Joint Conference Board in a

since hess award in March 1981. The

rejection was based on the same reasons as

the adverse determination of February 9.

Edwards was in attendance at each of

the Joint Board hearings and was made imme-

diately aware of the adverse awards.

On December 15, 1981, Edwards filed a

complaint in the United States District

Court for the Southern District of California.

Edwards' complaint was a "hybrid" Section

301 suit. That is, Edwards alleged that the

employer breached the collective bargaining

agreement while the Union breached its duty

of fair representation. The Court's juris-

diction was based on 29 USC §185(1976).

Additionally, the complaint contained pendant

claims based on state law against both

Asphalt and the Union.

C. Proceedings and Disposition

Be low.

The Union subsequently moved to dismiss

Edwards' complaint. The Union, relying on

United Parcel Service, Inc. v. Mitchell, 45]

US 56(1981), contended that the applicable

Statute of limitations wus California's 109

day limitation period for suit: to vacate

an arbitration award, California Civil Pro-

cedure Code Section 1288 (West's 1982)°, and

that, therefore, Edwards' complaint was bar-

red as untimely.

The U.S. District Court agreed with the

Union's contentions and therefore dismissed

Edwards’ complaint in its entirety.> Sub-

‘california Civil Procedure Code §1288

1s set forth in full in Appendix iy.

By Stipulation, the complaint against

the Employer, Asphalt Inc., was dismissed

with prejudice. ‘The Stipulation is set

forth in full in Appendix v.

sequently, Edwards timely appealed to the

Ninth Circuit.

Edwards appealed the judgment as to

only the Union.

The Ninth Circuit held that the Mitchell

decision was applicable to only an employer.

Relying on a previous Ninth Circuit decision,

Price v. Southern Pacific Transportation Com-

pany, 586 F2d 750(9th Cir.1978), the Court

held that as to the union the applicable

statute of limitations in reference to an

alleged breach of the duty of fair represen-

tation was California Civil Procedure Code

§338(1) (West's 1982)°, a three year statute.

After reviewing the factors set forth

in Chevron Oil Company v. Huson, 404 US 97

(1971), the Ninth Circuit further held that

the decision in DelCostello v. Teamsters,

__US__103 S.Ct. 2281(1983) would not be re-

troactively applied to the present case.’

california Civil Procedure Code §338(1)

is set forth in pertinent part in Appendix .

Tin footnote 2 of its Decision, the

9th Circuit states that "the Union does not

argue here that §10(b) should be applied to

The District Court's dismissal of

Edwards' suit against the Union was there-

fore reversed and remanded.

The Union now seeks review of the

Ninth Circuit's decision and judgment in its

entirety.

bar Edwards' action ... " 114 LRRM 3227,

3229. While it is true that oral and written

argument was completed prior to this Court's

decision in DelCostello, the Union, by letter

dated June 27, 1983 requested that the Ninth

Circuit consider the then recently announced

DelCostello decision in reference to the case

before it. [FRAP Rule 28(j)] Said letter is

set forth in full in Appendix vii.

ARGUMENT

This writ should be allowed for the

following reasons:

THE NINTH CIRCUIT'S REFUSAL

TO APPLY MITCHELL TO THE UNION

IS CONTRARY TO DECISIONS BY

THIS COURT

In cases where Mitchell is deemed appli-

cable to employers, the Ninth Circuit has

adopted a staagered statute of limitations

scheme in reference to a hybrid Section 301/

fair representation claim. In such a hybrid

suit, the Ninth Circuit would have California

Civil Procedure Code §1228, a one hundred

day limitation period, applied to the emp-

loyer while California Civil Procedure Code

§338 (1), a three year limitation period would

apply to the union. According to the Ninth

Circuit, “the choice of a three year statute

does not violate federal labor policy, for

two reasons. First, ... the possibility of

employee suits against a union does not

threaten the quick resolution of labor dis-

putes by means of grievance proceedings.

Second, a three year period is in no sense

inherently too long." Edwards v. Teamsters

Local 36, F2d_ (9th Cir.1983); 111 LRRM

3227, 3229. The Ninth Circuit's contentions

are directly at odds with this Court's dec-

ision in DelCostello, supra.

First, this Court's decision in Del-

Costello v. Teamsters, _US 103 S.Ct. 2281

(1983) makes it clear that as a matter of

national labor policy the same statute of

limitations should be applied to both claims

against an employer and a union. Prior to

DelCostello, the question as to what statute

should govern the fair representation claim

against the Union was not definitively ans-

wered. id, 2285. After DelCostello, that

question was closed. A six month period

under §10(b) of the Act was to be applied to

claims against both employers and unions.

According to DelCostello, the two claims

involved in a hybrid §301l/fair representation

suit are "inextricably interdependent". Id

at 2290, quoting from Mitchell, 451 US at 66.

Given the interdependency of the claims, the

application of the same limitation period

to both employer and union furthers the pol-

icy of a rapid resolution of labor disputes

for such a claim constitutes "a direct chal-

lenge to the private settlement of disputes

under [the collective bargaining agreement]".

Id at 2291, quoting Mitchell, 451 US at 66.

Under the Ninth Circuit ruling in Ed-

wards, an employee whose claim arose before

1983 must now bring his 301 action against

the employer within 100 days after the claim

arose. As to the fair representation claim

against the Union, however, the employee is

Given three years from the time at which the

Claim arose to file suit. The Ninth Circuit's

contention that such a staggered scheme "does

not threaten a quick resolution of labor

£3

disputes by means of proceedings" is Clearly

contrary to the Court's reasoning in Del-

Costello.

Second, the Ninth Circuit's belief that

a three year statute of limitations period

as to the Union is "in no sense inherently

too long" is also clearly at odds with Del-

Costello.

In DelCostello, the Court reviewed

various statute of limitations alternatives

but eventually rejected all in favor

of the six month period pursuant to 10(b) of

the Act. Thus, the Court discussed the sug-

gestion that the State limitations period

for legal malpractice be applied in hybrid

§301/fair representation claims. The Court

rejected this suggestion for, among other

things, legal malpractice statutes involve

time periods which the Court believed were

Far too lonq.

The Court specifically noted that had

such a legal malpractice limitations period

been used, the respondents Flowers and Jones

would have had three years in which to file

suit. The Court rejected such a three year

Statute of limitations as too lengthly for

with such a time period the grievance/arbi-

tration system could easily become unworkable.

Id at 2292-2293.

The Ninth Circuit's decision to adopt

a three year statute of limitations period

as to the Union is blatantly contrary to the

belief of this Court that such a time period

is inimical to the grievance/arbitration

process.

THERE NOW EXISTS AN EXPRESS

CONFLICT AMONG THE CIRCUITS

AS WHETHER MITCHELL SHOULD

BE APPLIED TO UNIONS.

The Ninth Circuit in both the above-

captioned case and McNaughton v. Dillingham

Corp., 707 F2d 1042(9th Cir. 1983) has held

that Mitchell is not applicable to unions.

The Sixth Circuit, in Lawson v. Truck

Drivers, Chauffeurs and Helpers, etc., 698

F2d 250 (6th Cir. 1983), cert denied, sub

nom. Leach v. U.S. Postal Service, US

(Oct. 3, 1983), 104 s.ct. 69 8,

held that that Circuit's policy was to inter-

pret Mitchell as requiring that the same

Statute of limitations concerning a vacation

of an arbitration award be applied to both

the employer and the union in a hybrid Sect-

ion 301/fair representation claim. See also:

Badon v. General Motors Corp., 679 F2d 93

(6th Cir, 1982); D'Andrea v. American Postal

Workers, 700 F2d 335 (6th Cir, 1983).

In conclusion, because of this "unusually

direct conflict between two circuits,” the

Union respectfully requests that certiorari

issue. Corning Glass Works v. Brennan, 417

In his Petition for Certiorari, the

issues presented by Petitioner Leach were,

among other things, whether the 6th Circuit

erred in applying Mitchell to the union.

LRX Supreme Court Docket-104, Oct. 24,

1983.

US 188, 191 (1974).2

III

THE NINTH CIRCUIT'S REFUSAL TO

RETROACTIVELY APPLY DELCOSTELLO

IS CONTRARY TO DECISIONS BY

THIS COURT

While Edwards received his final adverse

arbitration award in March 1981, he did not

file suit until December 1981. The Ninth

Circuit, however, has refused to apply Del-

Costello retroactively to Edwards.

In DelCostello petitioner, DelCostello,

received his adverse award in August 1977 but

did not file suit until March 1978. Respon-

dents Flowers and Jones received their adverse

award in February 1978 but did not file suit

until January 1979. DelCostello, supra,

The 9th Circuit's Edwards decision con-

flicts not only with decisions of the 6th

Circuit but is also contrary to prior 9th

Circuit caselaw. In Singer v. Flying Tiger

Line, Inc., 652 F2d 1349(1981), the 9th Cir-

cuit held that it would prospectively apply

Mitchell to both the employer and the union.

ia. St 13583.

2285, 2286.

This Honorable Court had no problem in

applying its newly announced six months limit-

ation period to respondents Flowers and Jones

and thereby finding that their suit, filed

more than ten months after their cause of

action accrued, was untimely. As to petitioner

DelCostello, his case was reversed and re-

manded for further proceedings consistent

with the Court's opinion due to the fact that

the District Court failed to consider DelCos-

tello's tolling claim.

In international Brotherhood of Teams-

ters, Chauffeurs, Warehousemen and Helpers

Local 988 v. Edwards, _US_ (1983), 103 S.Ct.

3104, this Court granted certiorari, vacated

the Fifth Circuit's judgment, and ordered that

Circuit to apply DelCostello to an employee

who received an adverse arbitration award

in April of 1980 but failed to file suit

until April of 1981.

In Edwards, the District Court dismissed

Plaintiff's §301 suit as time barred as to

both the employer and the union under the

90 day limitations period of the Texas General

Arbitration Act.

The Fifth Circuit reversed the District

Court and held that the appropriate statute

of limitations as to the employer was Texas'

four year "catch all" statute while the claim

against the union was governed by Texas' 2

year statute of limitation applicable to tort

actions. Edwards v. Sea-Land Service, Inc.,

678 F2d 1276(5th Cir. 1982).

In District 1199, National Union of Hos-

pital and Healthcare Employees v. Assad,

__US__ (1983), 104 S.Ct. 54, this Court granted

certiorari, vacated the judgment of the Second

Circuit and further ordered that Circuit to

apply DelCostello where the employees' hybrid

claim arose in October 1980 but a complaint

was not filed until June 1981.

The District Court had held that plain-

tiff's entire suit was untimely under New

York's 90 day arbitration statute.

The Second Circuit had held that, as

plaintiff's grievance had never been arbit-

rated, the 6 month limitations under §10(b)

of the Act governed plaintiff's claim against

the employer. The Second Circuit simulta-

neously held that the plaintiff's fair re-

presentation claim against the union was gov-

erned by New York's three year malpractice

Statute. In sum, the District Court's hold-

ing that plaintiff's entire suit was untime-

ly was reversed and remanded as to the union

by the Circuit. Assad v. Mount Sinai Hospital,

703 F2d 36(2nd Cir. 1983).

In sum, the Ninth Circuit's refusal to

apply DelCostello in the above-captioned

case is clearly out of step with this Court's

continuing willingness to apply DelCostello

ln Similar situations.

THERE NOW EXISTS AN EXPRESS

CONFLICT AMONG THE CIRCUITS

AS TO WHETHER DELCOSTELLO

SHOULD BE APPLIED RETROACTIVELY

After reviewing the factors set forth

in Chevron Oil, supra, the Ninth Circuit

The 9th Circuit's action is clearly contrary

to the position of other Circuits.

The Third Circuit, after explicitly

reviewing the factors in Chevron Oil, supra,

held that DelCostello should be applied

retroactively to an employee whose claim

arose in or about October 1979 but who did

not file suit until September 1981. Perez

v. Dana Corp., 718 F2d 581(3rd Cir. 1983).

The Fifth Circuit, upon remand from this

Court, held as untimely a hybrid §301 claim

filed one year after am adverse arbitration

award. The 5th Circuit applied DelCostello

retroactively after a specific analysis of

the factors set forth in Chevron Oil, supra.

Edwards v. Sea-Land Service, Inc., _ F2d

(Sth Cir. Dec. 5, 1983); 114 LRRM 3663.

Other Circuit decisions have implicitly

applied DelCostello retroactively.

The Sixth Circuit applied DelCostello

where the final adverse arbitration award

was issued August 1979 while the complaint

was filed April 1981. Curtis v. Teamsters

Local 299, 716 F2d 360 (6th Cir.1983).

The Seventh Circuit, in Metz v. Tootsie

Roll Industries, 715 F2d 299 (7th Cir.1983)

applied DelCostello where the claim arose in

May 1981 but the suit was not filed until

June 1982.

Similarly, the 7th Circuit applied

DelCostello and held untimely an action

filed in April 1982, eleven months after

the issuance of the adverse arbitration award

in May 1981. Ernest v. Indiana Bell Tele-

phone Company, 717 F2d 1036 (7th Cir.1983).

See also: Storck v. Teamsters Local 600,

712 F2d 1194(7th Cir. 1983).

The Eleventh Circuit applied DelCostello

retroactively finding that an employee's

suit which had been filed four months after

the claim arose and which had previously

been dismissed by the District Court as un-

timely to both the employer and the union

under Florida's 90 day statute of limitations

for the vacation of an arbitration award was,

in fact, timely under DelCostello's six month

time period. Hand v. International Chemical

Workers Union, 712 F2d 1350(llth Cir. 1983),

114 LRRM 2254.

In Rogers v. Lockheed-Georgia Co.,

F2d_ (llth Cir. Dec. 5, 1983), 114 LRRM 3660,

the llth Circuit, after noting that "the

Supreme Court in DelCostello applied its

decision retroactively to the parties before

the Court" so as to promote the rapid reso-

lution of labor disputes, concluded that to

“deny retroactive application of DelCostello

would retard rather than further the federal

interests in prompt resolution of labor

disputes, finality, and consistency embodied

in DelCostello". Id at 3662.

In conclusion, the Ninth Circuit's re-

fusal to retroactively apply DelCostello in

the above-captioned matter is Clearly con-

trary to the position taken by other Circuits.

CONCLUSION

The Ninth Circuit's decision in the

above-captioned matter has had a serious

impact on similar cases within the Circuit. !°

The Ninth Circuit's decision in this

case is contrary to the decisions of other

circuits and to decisions of this Honorable

Court. For the foregoing reasons, the Union

respectfully requests that certiorari issue

to review the decision below.

Respectfully submitted,

RICHARD D. PROCHAZKA

Attorney for Building Material

and Dump Truck Drivers,

Teamsters Local Union No. 36

of the International Brother-

hood of Teamsters, Chauffeurs,

Warehousemen & Helpers of

America.

+" ppendix viil is a listing of cases

within the Ninth Circuit affected by the

Edwards decision.

APPENDICES

APPENDIX i

Opinion

United States Court of Appeals

For the Ninth Circuit

Lee O. Edwards, Jr.,

Plaintiff-Appellant,

vs.

Teamsters Local Union No. 36,

Building Material and Dump

Truck Drivers,

Defendants-Appellees.

No. 82-5326

USDC No. CV 81-1278-WBE

Appeal from the United States

District Court for the Southern

District of California

Hon. William B. Enright, District

Judge, Presiding

Argued and Submitted: November 5, 1982

Before: FLETCHER, NELSON, Circuit

Judges, and EAST,* District

Judge.

NELSON, Circuit Judge:

Edwards appeals from the dismissal

of his suit against his union for breach

of its duty of fair representation in

grievance proceedings following his dis-

missal from employment. Edwards filed

this action nearly a year after he was

discharged, and more than ten months after

his grievance against his employer was

unfavorably resolved. The court below

dismissed Edwards' claims against the

employer and the union as untimely filed

On the authority of United Parcel Service

v. WNitchell, 451 U.S. 56, 101 8. Ct.

*Honorable William G. East, Senior United

States District Judge for the District of

Oregon, sitting by designation.

1559, 67 L. Ed. 2d 732 (1981). Edwards

appeals only the judgment for the union.

We reverse that judgment and remand the

case for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

This suit arises from the discharge

of appellant Edwards by appellee Asphalt,

Inc. (Asphalt). After seven years of

continuous employment, Edwards was absent

from work for health reasons for more than

six months in 1980. When he attempted to

return to work on December 24, he was

dismissed. Edwards was a member of

Teamsters Local Union No. 36, Building

Material and Dump Truck Drivers (Union),

which had a collective bargaining agree-

ment (Agreement) in force with Asphalt.

After his termination, Edwards filed

a grievance with the Union alleging he

was fired in violation of the Agreement.

Because of the Union's conduct, Edwards

has been unable to obtain a hearing on the

merits of his grievance. The Union twice

took this grievance before the Joint Con-

ference Board, a three member arbitral

body set up under the Agreement. The

claim was dismissed at the first hearing

because the Union had failed to refer the

matter to the Joint Conference Board

within fifteen days as required by the

Agreement. By advancing additional

grounds for the illegality of his termi-

nation, Edwards convinced the Union to

refer his gricvance to the Board a second

time. This claim was denied on the

grounds that the Union had not originally

communicated his grievance to the employer

within ten days after it arose, again as

required by the Agreement. It appears

that there is nothing further Edwards

could have done to press his claim.

Edwards filed this action on

December 15, 1981. He charges that

Asphalt violated the Agreement by dis-

missing him because of his health or

because of protected union activities,

giving rise to an action under Section 301

of the Labor Management Relations Act.

29 U.S.C. § 185 (1976). Edwards further

charges the Union with breaching its duty

of fair representation in grievance

proceedings, giving Edwards a cause of

action under Vaca v. Sipes, 386 U.S. Lay

G7 S.. CE. 903, 17 i. Ba. te (1967).

There are additional] pendent claims based

On state law against both defendants.

The Union filed a motion to dismiss

Edwards’ suit on the grounds that his

federal law claims were filed too late.

The district court relied On United Parcel

Service, Inc. v. Mitchell, 451 U.S. 56,

101 -S. Ct. 1559, 67 £. Ba. ‘38 922 (1981),

in holding that the federa] law claims

were subject to California's 113-day

limitation period for suits to vacate an

arbitration award. Cal. Civ. Proc. Code

§1288 (West 1982). These claims were

therefore dismissed. The court exercised

its discretion to dismiss the state law

Claims as well, and so dismissed the entire

suit.

ISSUES

I. Whether the district court

applied the correct California statute of

limitations to Edwards' claims against the

Union.

II. Whether the Supreme Court's

recent decision in Del Costello v.

Teamsters, Uede: 9403 Se CE. 228i,

76 L. Ed. 2d 476 (1983), should be

applied retroactively.

DISCUSSION

Selection of a California

Statute of Limitations

A discharged employee must exhaust

the grievance procedures provided by the

collective bargaining agreement before

seeking direct legal redress. Republic

Steel Corp. v. Maddox, 379 U.S. 650, 85

S. Ct. 614, 13 L. Ed. 2a 580° (1965).

"{I]f the contractual processes have been

seriously flawed by the union's breach of

its duty to represent employees honestly

and in good faith and without invidious

discrimination or arbitrary conduct," the

employee has a cause of action against

both the union and the employer. Hines ve

Anchor Motor Freight, Inc., 424 U.S. 554,

2770, 96 &. Ct. 1048, 47 L. Ea. 2d) 231',. 245

(1976). A discharged employee can sue an

employer under section 301 of the Labor

Management Relations Act for terminating

him in violation of the collective bar-

gaining agreement. 29 U.S.C. § 185 (1976).

A union is subject to suit for breach of

the duty of fair representation implied

from the National Labor Relations Act.

Vaca v. Sipes, 386 U.S. 171, 176-78, 87

S. Ct. 903, 909-10, 17 L. Ed. 2d 842,

849-50 (1967).

Section 301 of the LMRA, which estab-

lishes jurisdiction for both kinds of

actions, does not provide a statute of

limitations. The Supreme Court has estab-

lished that in general, "the timeliness of

a § 301 suit .. . is to be determined, as

a matter of federal law, by reference to

the appropriate state statute of limita-

tions." UAW v. Hoosier Cardinal Corp.,

383 U.S. 696, 704-05, 86 S. Ct: 1107,

1113, 16 L. Ed. 2d 192, 199 (1966) .47 In

United Parcel Service, Inc. v. Mitchell,

451 U.S. 56, 63-64, 101 S. Ct. 1559, 1564-

65, 67 L. Ed. 2d 732, 740-41 (1981), the

Supreme Court held that in a section 30]

Suit brought against an employer, the

proper limitations period is the one a

State would apply to an action to vacate

an arbitration award.= The court below

held that Mitchell required it to apply

the statute of limitations for an action to

vacate an arbitration agreement to

Edwards' claims against the Union as well

3/ mM} +

as those against Asphalt. The search for

the appropriate statute of limitations is a

decision of law. See Butler v. Local 823,

International Brotherhood of Teamsters,

914 F.2d 442, 446 (8th Cir.), cert.

denied, 423 U.S. 924, 96 S. Ct. 265, 46

L. Ed. 249 (1975). We review decisions of

law de novo. Miller v. United States, 587

F.2d 993, 994 (9th Cir. 1978).

Edwards argues that Mitchell does not

require the same statute of limitations in

a duty of fair representation claim as in

a pure section 301 claim based on a breach

of the collective bargaining agreement.

This circuit has recently adopted that

proposition. McNaughton v. Dillingham

Corp., 707 F.2d 1042 (9th Cir. 1983),

states:

Mitchell did not resolve the

question against a union of

how an action for unfair

representation should be

Characterized. Justice Stevens,

who concurred in part and

dissented in part, believed

that the claim against the

union for unfair representa-

tion may not be "characterized

as an action to vacate an

arbitration award. ..." 451

U.S. at 73, 101 S. Ct. at 1569,

67 L. Ed. 2d at 746-47. We

agree with his analysis.

Id. at 1047-48 (footnote omitted). We must

therefore find another state statute of

limitatiors for an employee's suit against

his union.

Before the decision in United Parcel

Service v. Mitchell, a case in this circuit

held that because the duty-of fair repre-

sentation is an obligation fashioned by the

courts from the National Labor Relations

Act, a suit against a union for the breach

of that duty is best characterized as an

"action upon a liability created by

Statute." Price v. Southern Pacific

Transportation Co., 586 F.2d 750, 753 (9th

Cir. 1978); accord Kaylor v. Crown

Zellerbach, Inc., 643 F.2d 1362, 1369 (9th

Cir. 1981). Price therefore applied the

three-year statute of limitations of Cal.

Civ. Proc. Code § 338(1) (West 1982) to

such actions.

We find nothing in United Parcel

Service to call Price's analysis into

question. Price properly looked to the

nature of the claim in choosing an

appropriate state statute of limitations.

Moreover, the choice of a three-year

Statute -does not violate federal labor

policy, for two reasons. First, as dis-

cussed above, the possibility of employee

Suits against a union does not threaten

the quick resolution of labor disputes by

means of grievance proceedings. Second, a

three-year period is in no Sense

inherently too long. UAW v. Hoosier

Cardinal Corp., 383 U.S. 696, 86 S. Ct.

1107, 16 L. Ed. 2d 192 (1966), the deci-

sion that established that “rapid disposi-

tion of labor disputes is a goal of federal

labor law" for purposes of choosing a state

Statute of limitations for a section 30]

action, itself applied a six-year statute

of limitations. 383 0.8. at 707, 36.8... Ct.

at 1114, 16 L. Ed. 2d at 200.

Accordingly, we reaffirm Price's

holding that the California statute of

limitations applicable to a suit against a

union for the breach of the duty of fair

representation is the three year statute

for actions "upon a liability created by

statute," vrovided by Cal. Civ. Proc.

Code § 338(1). Edwards filed his suit

within thirteen months of his termination

and the events that followed. His claims

against the Union were therefore timely,

and their dismissal was incorrect.

ie Gs

Impact of the De] Costello Decision

Since this appeal was argued, the

Supreme Court has held that the Six-month

period for bringing an unfair labor

practice claim before the NLRP applies both

to suits brought against an employer for

breach of the collective bargaining agree-

ment and to suits brought against a union

for breach of the duty of fair representa-

tion. Del Costello v. Teamsters, U.S.

__¢ 103 S. Ct. 2281, 76 L. Ed. 2a 476

(1983). See National Labor Relations Act

§ 10(b), 29 U.S.C. §160(b) (1976) (six-

month period). We do not, however, apply

the rule to this case. Retroactive appli-

than that pertaining when the case was

filed is inherently unfair. In Chevron

Oil Co. v. Huson, 404 U.S. 946 92: BC;

349, 30 L. Ed 2d 296 (1971), the Supreme

Court, in declining retroactive applica-

tion of a statute of limitations, set

forth three factors to consider:

First, the decision to be

applied nonretroactively must

establish a new principle of

law, either by overruling clear

past precedent on which liti-

gants may have relied... .,

Or by deciding an issue of

first impression whose resolu-

tion was not clearly fore-

shadowed . .. . Second, it

has been stressed that "we

must . . . weigh the merits

~ and demerits in each case by

looking to the prior history

of the rule in question, its

purpose and effect, and whether

retrospective operation will

further or retard its operation."

: Finally, we have weighed

the inequity imposed by retro-

active application, for "[w]here

a decision of this Court could

produce substantial inequitable

results if applied retro-

actively, there is ample

basis in our cases for avoidina

the ‘injustice or hardship' by

a holding of nonretroactivity."

404 U.S. at 106-07, 92 S. Ct. at 355, 30

L. Ed. 2d at 306 (citations omitted)

(quoting Linkletter v. Walker, 381 U.S.

618, 629, 85 S. Ct. 1731, 1738, 14 L. Ed.

2d 601, 608 (1965); Cipriano v. City of

Houma, 395 U.S. 701, 706, 89 S. Ct. 1897,

1900, 23 L. Ed. 2d 647, 652 (1969));

accord Wiltshire v. Standard Oi] Ceo., 652

F.2d 837, 840 (9th Cir. 1981), cert.

denied, 455 U.S. 1034 (1982); Singer v.

Flying Tiger Line, 652 F.2d 1349, 1353 (9th

Car<: LOL)

The first criterion is met because

Del Costello effectively overrules the case

relied on above, Price v. Southern Pacific

Transportation Co., 586 F.2d 750, 753

(9th Cir. 1978), which clearly applied a

three-year statute of limitations to a dis-

charged employee's suit against a union.

Although Justice Stewart's concurrence in

Mitchelt advocated the limitations period

adopted in Del Costello, 451 U.S. at 65-

71, 101 S. Ct. at 1565-68, 67 L. Ed. at 792-

795, (Stewart J. concurring), it appeared

to run counter to the majority in Mitchell

and certainly did not "clearly foreshadow"

the Costello decision. We find Edwards

could reasonably have relied on Price in

filing this action. See Wiltshire, 652 F.

2d at 841; Singer, 652 F.2d at 1353. As to

the second criterion, we find that the

reasons behind allowing actions against a

union for the breach of the duty of fair

representation would be disserved by

barring suit by an employee when precedent

existing at the time of filing permitted

it. Huson, 404 U.S. at 107-08, 92 5S. Ct.

at 355, 30 L. Ed. 2d at 306; Wiltshire,

652 F.2d at 841. The third criterion is

also satisfied. As the court stated in

Huson, "It would . . . produce the most

"substantial inequitable results' ....

to hold that the respondent ‘slept on his

rights’ at a time when he could not have

known the time limitation that the law

imposed on him." 404 U.S. at 108, 92 S.

Ct. at 356, 30 L. Ed. 2d at 306-07

(quoting Cirpiano v. City of Houma, 395

U.S. 701, 706, 89 S. Ct. 1897, 1900, 23

L. Ed. 2d 647, 652 (1969)); Wiltshire, 652

F.2d at 841-42. This court stated in

Singer: "[A] critical factor is that the

[new] rule . . . is not one which might

have been anticipated." 652 F.2d at 1353.

We find that Edwards was similarly unable

to anticipate the rule in Del Costello,

and accordingly decline to apply that rule

retroactively under the three-part test set

forth in Huson.

CONCLUSION

The dismissal of Edwards' suit against

the Union is reversed. The case is remanded

for further proceedings on the claims

against-the Union.

REVERSED AND REMANDED.

FOO'TNOTES

1/ Because all the relevant events

occurred in California and all parties are

based in that state, California statutes

are the proper source for a limitations

period. Price v. Southern Pac. Transp. Co.,

586 F.2d 750, 753 (9th Cir. 1978).

2/ In United Parcel Service v. Mitchell,

the Court declined to consider the

possible applicability of National Labor

Relations Act section 10(b)'s six-month

period, 29 U.S.C. § 160(b) (1976), because

it was not raised by the parties. 451 U.S.

at 60 n.2, 101 S. Ct. at 1562 n.2, 67 L.

Ed. 2d at 738 n.2. The Union does not

argue here that § 10(b) should be applied

to bar Edwards’ action, and we follow

Mitchell in declining to consider the

question. The Supreme Court has recently

adopted the six-month period for these

Suits, Del Costello v. Teamsters, U.S.

e 103 S. Ct. 2281, 76 L. Ed. 2d 476

(1983), but we decline to apply that deci-

sion retroactively in Part II infra.

3/ The fact that the Union did bring

Edwards' grievance to the Joint Conference

Board distinguishes this case from

Christianson v. Pioneer Sand Gravel Co.,

681 F.2d 577 (9th Cir. 1982). That deci-

sion stated that United Parcel Service, Inc.

v. Mitchell does not apply where "the

Union never even processed appellant's

grievances.” Id. at 580.

APPENDIX ii

Memorandum Decision

United States District Court

Southern District of California

Lee O. Edwards, Jr.,

Plaintiff,

Vv.

Teamsters Local Union No. 36,

Building Material & Dump Truck

Drivers, and Asphalt, Inc.,

Defendants.

Civil No. 81-1278-E

Plaintiff was an employee of defendant

Asphalt, Inc. and a member of a bargaining

unit which is covered by a collective bar-

gaining agreement between Asphalt, Inc. and

defendant Teamsters Local 36. Asphalt

terminated plaintiff on December 24, 1980.

Plaintiff brought his termination to the

union steward as a grievance, as required

by the collective bargaining agreement.

The agreement provides that the union

representative is then required to go to

the employer tepresentative and attempt to

settle the grievance informally. If the

grievance cannot be solved informally it

must be referred to the Joint Conference

Board for resolution. The bargaining

agreement states that the grievance must be

presented to the Joint Conference Board

within 15 days or it will not be con-

Sidered. Plaintiff's grievance was brought

to the Joint Conference Board on February 9,

1981. The grievance was denied as untimely

brought. Plaintiff attempted to get

another hearing before the Joint Conference

Board on a related matter, but this was

also denied as untimely on March 10, 1981.

Plaintiff filed this action on December 15,

1981, alleging three causes of action. The

first cause is brought under Section 30]

of Labor Management Relations Act and

charges the local union violated its duty

of fair representation in carrying out the

above acts. The second and third causes of

action are pendent state claims. Defendant

Local 36 brought a motion to dismiss or

strike, contending: 1) the complaint is

barred by the statute of limitations; 2)

punitive damages are not available; and 3)

attorney's fees are not available. The

court, having considered the pleadings and

exhibits filed herein, and the arguments

advanced at time of hearing, finds the

complaint is barred by the applicable

Statute of limitations and shall therefore

dismiss the action. Under such circum-

stances it is, of course, not necessary to

consider the remaining issues.

STATUTE OF LIMITATIONS

The source of jurisdiction for this

action is Section 301 of the Labor Manage-

ment Relations Act, 29 U.S.C. 6 165.

Specifically, plaintiff charges that

defendant union breached its duty to

fairly represent him by failing to process

his grievance in a timely fashion. The

Supreme Court has,long held that the time-

liness of a Section 301 suit is to be

determined, as a matter of federal law, by

reference to the appropriate state statute

of limitations. United Parcel Service v.

Mitchell, U.S...» 3201 SS. Cty 2559

(April 20, 1981); UAW v. Hoosier Cardinal

Corporation, 383 U.S. 696 (1966). In

Mitchell, the Supreme Court stated that

Suits involving breach of a union's duty

of fair representation shall come under the

appropriate statute of limitations for

actions to vacate an arbitration award,

rather than the longer statute of limita-

tions applied to general contract actions.

Soon after Mitchell, the Ninth Cir-

cuit made it clear that this rule would be

the law of the Ninth Circuit:

Opportunity for full arbitration hearings

whereas the failure to bring a timely

arbitration claim, such as the union has

allegedly done here, is more like a "pure"

contract violation.

It is true that there had existed

Ninth Circuit authority indicating a

longer statute of limitations period would

be applied to actions of the kind brought

by plaintiff. Moreover, it is true that

the Singer court did not apply the new

rule to the case it reviewed. However, by

the time the Mitchell decision was

announced, the parties in Singer had filed

their complaint, been through summary

judgment in the district court, filed

their appeal and were awaiting oral argu-

ment im the Ninth Circuit. Up to that

point both parties in Singer ‘agreed a

different statute of limitations was

applicable. Under those circumstances the

court stated:

In the future, as Mitchell

requires, when the action is

commenced after an unfavorable

arbitral decision, we shall

treat suits against a union for

breach of the duty of fair

representation and against an

employer for breach of a collec-

tive bargaining agreement under

this type of limitations statute.

In this case, however, we decline

to apply the rule.

Singer, supra, at 1353.

It should be noted that Mitchell was

decided on April 20, 1981, more than a

month before the shorter, 100 day statute

of limitations would have run on plaintiff

Edwards in this case. Yet his complaint

was not filed until December 15, 1981. The

Supreme Court, which could have expressly

limited its holding to prospective applica-

tion, chose not to do so. Under all tradi-

tional canons of interpretation the rule of

Mitchell should be applied to this case.

Plaintiff's second argument is that

Mitchell is not applicable to this case

because it involved an action where the

plaintiff had a full arbitration pro-

ceeding. Plaintiff argues cases where the

union fails to even bring about arbitration

are more like "pure" contract actions.

Though the Supreme Court did mention the

prior opportunity for a full hearing in its

rationale, the ruling it reached cannot be

given the restrictive reading plaintiff

Suggests. The Court's opinion noted that

characterization of the action as a breach

of contract ignores the significance of the

fact that the accion was brought pursuant

to Section 301:

[T]he indispensible predicate

for such an action is not a

showing under traditional con-

tract law that the discharge

was a breach of the collec-

tive bargaining agreement, but

instead a demonstration that

the union breached its duty of

fair representation.

Mitchell, supra, at 1562-63.

The narrow reading urged by the

plaintiff is not to be found in the Supreme

Court's decision. It may also be noted

that the interpretation and rule announced

in Singer is not narrow. This court reads

the Ninth Circuit to state it will apply

the shorter statute of limitations to any

such suit commenced after an unfavorable

arbitral decision, charging the union with

breach of a duty of fair representation.

The shorter statute of limitations period

found in Cal. Civ. Proc. Code §1288 shall

be applied to this case and thus bars the

action.

DATED: March 23, 1982.

/s/

WILLIAM B. ENRIGHT, Judge

United States District

Court

Copies to:

Plaintiff

Defendants

ORDER

United States District Court

Southern District of California

Lee O. Edwards, Jr.,

Plaintiff, .

Vv.

Teamsters Local Union No. 36,

Building Material & Dump Truck

Drivers, and Asphalt, Inc.,

Defendants.

Civil No. 81-1278-E

Defendants’ motion to dismiss or

strike portions of the complaint in the

above captioned matter was heard on

March 22, 1982. The court, having con-

Sidered the pleadings and exhibits, as well

as the arguments advanced at time of

hearing, finds the action is barred by the

Statute of limitations. Cal. Civ. Proc.

Code §1288. Accordingly,

THIS ACTION IS HEREBY DISMISSED.

IS SO ORDERED.

DATED: March 23, 1982.

WILLIAM B. ENRIGHT, Judge

United States District

Copies to:

Plaintiff

Defendants

APPENDIX iii

Labor Management Relations Act,

29 U.S.C. §185

Suits by and against labor organizations.

Venue, amount, and citizenship

(a) Suits for violation of contracts

between an employer and a labor organization

representing employees in an industry aff-

ecting commerce as defined in this chapter,

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 citi-

zenship of the parties.

Responsibility for acts of agent;

entity for purposes of suit;

enforcement of money judgments

(b) Any laBer organization which re-

presents employees in an industry affecting

commerce as defined in this chapter and any

employer whose activities affect commerce

as defined in this chapter shall be bound

by the acts of its agents. Any such labor

Organization may sue or be sued as an entity

and in behalf of the employees whom it re-

presents in the courts of the United States.

Any money judgment against a labor organi-

zation 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.

Jurisdiction

proceedings by or against labor organizations

in the district courts of the United States,

district courts shall be deemed to have

Jurisdiction of a labor organization (1) in

the district in whic! uch Organization

Maintains its principal office, or (2) in any

district in which its duly authorized officers

Or agents are engaged in representing or

acting for employee members.

Service of process

(d) The service of summons, Subpeni,

Or other legal process of any court of the

United States upon an officer or agent of

a labor organization, in his Capacity as

such, shall constitute service upon the

labor organization.

Determination of question

of agency

‘e) For the purpodes of this section,

in determining whether any person is acting

as an “agent” of another verson so as to

make such other person responsible for his

acts, the question of whether the specific

acts performed were actually authorized or

subsequently ratified shall not be con-

trolling.

APPENDIX iv

California Civil Procedure §1288

A petition to confirm an award shall

be served and filed not later than four

years after the date of service of a signed

copy of the award on the petitioner. A

petition to vacate an award or to correct

an award shall be served and filed not

later than 100 days after the date of the

service of a signed copy of the award on

the petitioner.

F, |

APPENDIX v

Stipulation Re Dismissal %f Case as To

Detendant, Asphalt, Inc. and

Order Thereon

United States District Court

For the Southern District of California

Lee O. Edwards, Jr.,

Plaintiff,

Vs.

Teamsters Local Union No. 36,

Building Material and Dump

Truck Drivers, and Asphalt Inc.,

; Defendants.

No. 81-1278-E(T)

If IS HEREBY STIPULATED by and between

the parties hereto that as to defendant,

ASPHALT, INC. the above-captioned action

may be dismissed with prejudice.

SO STIPULATED. Adler and Gniatkowski

Dated: March 4, 1983.

John S. Adler

Attorney for Plaintiff

Lee O. Edwards, Jr.

SO STIPULATED. McDougal, Meloche, Love

& Eckis

Dated: March 2, 1983.

Attorney(s) for

Defendant Asphalt, Inc.

IT IS SO ORDERED that the above-

captioned case be dismissed with prejudice

as to defendant, ASPHALT, INC.

Dated: 3/9/83

Hon. WILLIAM B. ENRIGHT,

Judge United States

District Court

Southern District of

California

APPENDIX vi

California Civil Pracedure §338

Three years; statutory liability;

exception; trespass or injury to realty;

taking, detaining or injuring goods or

chattels; fraud or mistake; bond of

public official; notary public; slander

of title; false advertising; water

guality and hazardous wastis.

Within three years:

@ An action upon a liability created

by statutes, other than a penalty or for-

feiture.

APPENDIX vii

June 27, 1983

Office of the Clerk

United States Court of Appeals

for the Ninth Circuit

7th and Mission Streets

P.O. Box 547

San Francisco, California 94104

Re: Edwards v. Teamsters

Local 36, etc, et al.

Case No. 82-5326

Dear Sir or Madam:

There is a United States Supreme Court

case decided on June 8, 1983 which should

be considered in deciding the above-

referenced case. In DelCostello v. Inter-

national Brotherhood of Teamsters, et al,

US__, 113 LRRM 2737 (1983) the Supreme

Court expressly overruled UPS v. Mitchell,

451 US 56(1981). A copy of that case is

enclosed for your reference. Instead of

resorting to an analogous state statute

of limitations, the Court held that the

Six month period in §1]10(b) of the NLRB

applied in breach of fair representation

Suits against the union as well as against

the employer. Defendant Local 36 respect-

fully request that the Court consider the

DelCostello case in rendering its decision

in the present case. It was raised at the

trial level that Mr. Edwards’ claim was

barred by both federal and state statutes

of limitation. (CR 2, page 2.)

The Court in DelCostello did not indicate

whether its decision was retroactive. How-

ever, Singer vs. Flying Tiger Line, Inc.,

652 F2d 1349 (9th Cir. 1981) would be

helpful in this respect. In Singer this

Court held that Mitchell would not be applied

retroactively to the plaintiff in the Singer

case. The rationale was that since the

limitations period under Mitchell was shorter

than prior 9th Circuit law, it would be

inequitable to apply the shorter period

retroactively, because the plaintiff could

have reasonably relied on the longer period

In the present case Defendant Local 36

has argued that Mitchell was decided within

a month or two of the dates when the Joint

Conference Board rejected Plaintiff Edwards'

grievances. Thus, the Singer exception would

have no application to Edwards' case.

Assuming this Court accepts the argument

that Mitchell is controlling, applyiny Del-

Costello retroactively would not be prevent-

ed by the Singer exception, since the period

in DelCostello is longer than in Mitchell.

Edwards is barred under the DelCostello

case. The Joint Conference Board rejected

his grievances on February 9, 1981 and

March 10, 1981. [Brief for Defendant/Ap-

pellee Local 36, p. 16.] Under DelCostello,

Edwards should have filed his complaint no

later than September 10, 1981. However, he

filed it on December 15, 1981. It is thus

ae i mu

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APPENDIX viii

Since the publication of the 9th Cir-

cuit's decision in Edwards, Union's counsel

had become aware of the profound impact of

that decision within the Circuit. Fair

representation claims in which there are

issues of timeliness are as follows:

(1) Cases pending before the Ninth

Circuit:

Alderson v. Crescent Truck Lines,

83-2126

Virginia Aragon v. Federated Dept.

Stores, inc., et al, 83-6455

Richard Gonzalez v. Rohr Industries,

Inc., et al., 83-6262 (on Inter-

locutory Appeal)

Robert Johnson v. MCA, Inc., et al.,

82-5693

Nelson Rodriguez v. Union Carbide,

et al., 83-2709, 83-2553

Washington, et al v. Northland

Marine Co., Inc., et al,

3-3850, 83-3851

Williams v. United Airlines, et al,

83-2426

(2) Cases pending

han

bia td

urts wi the Ninth

ALC... Gt Ak VW.

87-0340-EFL N.D.

Bates v.

before

Jamieson

the

District

Cirecul

Machinis

Cals

CO.

C-83-1]297-WHO N.D. Cal.

Blandin«

(motion

William E.

irc Larkins Bros.

C-82-7080-RPA N.D.

pending)

Craft, et Ris V.

Cal,

Sheet

Metal Workers International Assoc-

lation, Local 206, et al.,

82-07 34-T (M)

DeAllessi

we.

Bp. Cal.

FO,

C-83-4384-SC N.D. Cal.

Ervin Halasz v. Langendorf Bakeries,

inc.» et }

CV 82-6602-WMB

Haupt v. Local

Bakery Workers

No at FF S-83-

John H Hurtade

oy | . ;

U eiiw ep *

David Mullend

1,7 |=MMI

Company, et

CV 8i-

‘al & Enagineerina Contrac

ames Gsiik's

Union No. 24,

’

5632-RHS

v. Unmiversit'

ive

Lines,

sf E.D. Cal

re The Dannon

‘7

Gems CBLs

Theodore Nabraski v. Daily Racing

Form, Inc., et al,

83-7552-MML C.D. Cal.

Gerald Pounds v. Mathews Ready Mix,

Inc., et al,

S-82-990-EDP E.D. Cal.

Purcell v. Capitol Delivery,

No. Cir. S-81-827-PCW E.D. Cal.

Ben Rameriz v. Cascade National

Gas Corp. & Chemical Workers

Local 121,

C-83-586-RJM E.D. Wa.

Sardinha v. American Home Foods,

S-80-96-RAR E.D. Cal.

Daniel A. Walden v. A.T.B. Packing

Co. & Fresh Fruit & Vegetable

Workers, Local P-78=-B,

S-81-462-PCW E.D. Cal.

(3) Cases pending before the State

Courts within the Ninth Circuit:

Manuela Recorder Carnero v. Intl.

Assoc. of Machinists & Aerospace

Workers, et al.,

No. 806724 Ca. Superior Court,

S.F. Ca.

Clintsman v. Bergen-Brunswick Corp.,

No. 312131 Cal. Sup. Ct.,

Sac., Ca.

Gregory v. Granny Goose Foods,

No. 526204 Cal. Superior Ct.,

Santa Clara, Ca.

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.