# Petition — Teamsters Local Union No. 36, Building Material & Dump Truck Drivers v. Edwards > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1148%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1102 ## Text 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. ii 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 dT 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 ....... 10 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 V. GCOBGRMREGR 6 co cccecedcscorsesedceedsésetes. Oe iv 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, 16 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. to 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. ie 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. v 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. ae 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. 10 ARGUMENT This writ should be allowed for the following reasons: I 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 1] 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. 12 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 14 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. II 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. 15 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. 16 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. 17 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. 18 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. 19 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. 20 IV 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 21 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, 22 712 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 23 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. 24 V 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 6 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 i 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 2/ 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 10 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; 14 349, 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 16 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 17 (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. 18 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 19 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 2] 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: 26 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 28 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 29 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. 30 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 3] 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 / (c) For the purposes of actions and 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 33 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. 34 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. Vw 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 36 may be dismissed with prejudice. SO STIPULATED. Adler and Gniatkowski Dated: March 4, 1983. By John S. Adler Attorney for Plaintiff Lee O. Edwards, Jr. SO STIPULATED. McDougal, Meloche, Love & Eckis Dated: March 2, 1983. By 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 rh 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. 38 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 9 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 40 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 + r - + 4 me \ “ — 4 - Ly ) - ‘ > - nd + c 4 4 . 9 "4 - 4 = 4 C ° . oy ~ - - ~~ ’ * z 7 4 -— +4 4 ‘ . c . “ oo ” - “ > a +4 . a ° 4 4 ‘ ~+ . 4 ) ° - 4 " . + hs 0 > . ’ " 4 + a . =: we , , , ft. wd ~ ad - u - ‘ 4 . . ; a 4 4 ‘ m4 > 42 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. et 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., Sc 82-07 34-T (M) DeAllessi vy we. KS 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 * ' W. David Mullend al 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 44 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1148%3A1. Public record. Not legal advice.