Petition for Writ of Certiorari — Zemonick v. Consolidation Coal Co.

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Bupreme Court, U.Sy ¥

FILED *

OCT 25 1986

JOSEPH F. SPANIOL, JR

CLERK

86-683.

No.

_ IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1986

MICHAEL ZEMONICK, et al.,

Petitioners,

VS.

CONSOLIDATION COAL CO.

and

DISTRICT 31, UNITED MINE WORKERS

OF AMERICA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

ROBERT M. BASTRESS

P.O. Box 1295

Morgantown, W.Va. 26505

(304) 293-5301

Counsel for Petitioners

— ‘

QUESTIONS PRESENTED

1. Whether the three-factor test from

Chevron Oil Co. v. Huson, 404 U.S. 97

(1971), for determining when a decision

should be applied retroactively requires

an equitable balancing of all three fac-

tors and consideration of the parties'

reasonable reliance on prior law.

2. Whether the decision in

DelCostello v. International Bhd. of Team-

sters, 462 U.S. 151 (1983), imposing the

N.L.R.A.'s six month statute of Limita-

tions on § 301/duty of fair representation

suits, should be retroactively applied to

dismiss a claim that: (1) was filed four-

teen months after the cause of action

arose in a jurisdiction where clear

authority had established a five year

limitation and where the shortest possible

state limitations period was two years;

and (2) had been fully litigated, with

cross motions for summary judgment

pending, when DelCostello changed the law

and prompted defendants to amend their

answer and move to dismiss on statute of

limitations grounds.

3. Whether the six month statute of

limitation in § 10(b) of the National

Labor Relations Act applies to a claim for

relief seeking to vacate an arbitration

decision because it violates law and

public policy.

LIST OF PARTIES

The following individuals, peti-

tioners in this Court, were appellants in

the Fourth Circuit and plaintiffs in the

district court:

Michael Zemonick

Andrew Ulrich (now deceased)

Cecil Main

Edward Prickett

Donald Cyphers

Robert Allen

Gary Jarrett

Ronald Moorehead

Raymond Walton

Donald Waters

Joseph Amalett

The appellees in the Fourth Circuit

and defendants in the district court (now

respondents) were:

Consolidation Coal Company, Inc.

District 31, United Mine Workers of

America

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED . ......e.

LIST OF PARTIES « «© s+ « « «© © «© « o ehhl

DECISIONS BELOW . . «. «© «© «© © © © © 2

JURISDICTIONAL GROUNDS. .......

RELEVANT STATUTES ..... « « « «

STATEMENT OF THE CASE .. . « « « « «

ARGUMt s&h a Hw Oh

I. The circuits are in sharp con-

flict on the retroactivity of

DelCostello and on the

application of the Chevron

retroactivity analysis. ....

II. The Fourth Circuit's analysis

conflicted with that prescribed

by this Court in Chevron Oil

Co. v. Huson... . . 2. ee we we

(ARGUMENT )

III. The Court of Appeals' sub silentio

application of § 10(b)"s six month

limitation to petitioners' law and

public policy claim conflicts with

this Court's decisions in Auto

Workers v. Hoosier Cardinal Corp.

and DelCostello v. Teamsters.. . 44

eo is ae ae ee a a ae a

APPENDIX

Appendix A:

Opinion and Judgment of the

Court of Appeals, En Banc. ... 1

Appendix B:

Opinions of the Original

Panel of the Court

eS ae ee ee a ee ee ee ee ee

Appendix C:

Memorandum Order of the

Deena Gere « «) be 6 et te 2

Appendix D:

Judgment Order from the

wamevees GOUTE «ck cet ce cee MH

TABLE OF AUTHORITIES

Cases: Page

Abbitt v. Franklin, 731 F.2d

661 (10th Cir. 1984) ..... .14

Al Khazraji v. St. Francis

College, 784 F.2d

505 (3rd Cir. 1986) ... . .15,28

Anton v. Lehpamer, 787 F.2d

1141 (7th Cir. 1986) ..... .14

Auto Workers v. Hoosier

Cardinal Corp., 383 U.S.

696 (1966) es eo e ® 6 a oe @ s ee Pe

Barina v. Gulf Trading

Transp. Co., 726 F.2d

56G (9th Cir. 1984) . . . « « « «25

Billingsley v. Clelland,

41 W.Va. 234,

23 S.E. 812 (1985) ....424. 534

Byrne v. Buffalo Creek

Railroad Co., 765 F.2d

364 (2nd Cir. 1965) .... . 23,26

Carpenter v. West Virginia

Flat Glass, 763 F.2d 622

(4th Cit. 1985) e e e e * e a e 24

Cash v. Califano, 621 F.2d

626 (4th Cir. 1980)...

Chevron Oil Co. v. Huson, 404

U.S. 97 (1971) es o e e eo

Cipriano v. City of Houma,

395 U.S. 701 (1969) .

DelCostello v. International

Bhd. of Teamsters,

462 U.S. 151 (1983) .

Edwards v. Sea-Land Service,

. Inc., 720 F.2d 857

(SER Git. 1963) . « « « «

Edwards v. Teamsters Local

No. 36, 719 F.2d

1036 (9th Cir. 1983).

England v. State Board of

Medical Examiners,

375 U.S. 411 (1964)

E.E.0.C. v. Gaddis, 733 F.2d

1373 (10th Cir. 1984)

Gates v. Spinks, 771 F.2d

916 (5th Cir. 1985) .

Gibson v. United States, 781

F.2d 1334 (9th Cir. 1986)

passim

e £2,243

- 20,26

- 20,28

2/7

Glover v. United Grocers, Inc.,

746 F.2d 1380 (9th Cir.

1984) e e e & s ° & e e o& e @ af

Graves v. Smith's Transfer Co.,

736 F.2d 819 (lst Cir. 1984).

Gray v. Amalgated Meat Cutters

Local 540, 736 F.2d 1055

(JGR Cir. 1966) « « 2s « 222,25,

Gray v. Local 714, I.U.0.E.,

778 F.2d 1087 (5th Cir.

1985) e e e @ e e e e e o +e oreo

Holzsager v. Valley Hospital,

646 F.2d 792 (2nd Cir. 1981).

Jackson v. City of Bloomfield,

731 F.2d 652 (10th Cir.

1984) e e se e e e e a e e oe 20 5 ]

Jones v. Preuit & Mouldin,

763 F.2d 1250 (llth Cir. 1985).

Jones v. Consolidated

Freightways Corp., 776 F.2d

1458 (10th Cir. 1985). .

. * «& Boe 20, 23, 24,

Kennedy v. Wheeling Pittsburgh

Steel Corp., 81 L.R.R.M.

2349 (4th Cir. 1972). . 32,33,34,

~25

. 28

Landahl v. PPG Indus. ,746 F.2d

Bane (Fem Gals Bee) «0.0 «6 6 «@ oan

Lincoln v. District 9, I.A.M.,

723 F.2d 627 (lst Cir. 1984). . .25

—— v. Hazard, 777 F.2D

40 (6th Cir. 1985)

cert. den., U.S. ,

54 U.S.L.W > 3808

| ae ee ee a es

Northern Pipeline Co. v. Marathon

Pipeline Co., 458 U.S.

50 (1982) . . * . . o * . . o . -20

Perez v. Dana Corp., 718

F.2d 581 (3rd Cir. 1983). .14,23,25

Peterson v. Kennedy,/771 F.2d

1264 (9th Cir. 1965). . « « « » 025

Pitts v. Frito Lay, Inc. 700 F.2d

330 (6th Cir. 1983) . ..... 24

Rogers v. Lockheed-Georgia Co.,

720 F.2d 1247

(AGB Cit. L9G). « 2 2 co co ft 19,25

Smith v. City of Pittsburgh,

764 F.2d 188

Cae GEbs aeeer «© 6 8 at ew te ehh

Smith v. General Motors Corp.,

747 F.2d 372 (6th Cir. 1984). 22,24

United Parcel Service v. Mitchell,

451 U.S. 56 (1981) .. .33,34,35,39

United States v. Johnson, 457

Beme wee Cheeer «6 0 © « 6 6 oe oath

Welyczcko v. U.S. Air, Inc.,

733 F.2d 239 (2nd Cir.

Seer « we Sec 8s OB SS S89 SE

Wilson v. Garcia, 471 U.S. .

Bee Gowes £9SG CAPES) «6 0 ow tt ae

Wycoff v. Menke, 773 F.2d

983 (Sth Cir. 1965) . . « « « « «28

Zemonick v. Consolidation

Coal Co., 796 F.2d 1546

setting aside 762 F.2d 381,

(4th Crs et bs ae 8 ee passim

Miscellaneous:

National Labor Relations Act, §10(b),

29 U.S.C. § 160(b). . . «. . passim

Labor Management Relations Act, $301,

29 Vee Ge § 185 . . . 7 . passim

West Virginia Code 55-2-6. ... . 32,33

Williston on Contracts

§§ 1¢28-30 . 7 . . - . . . . . >

. —_—— . ode iq ‘ ee cmy See al ee oe ee | ee ee aa eee ae oy alse ke) © a. a, mh

DECISIONS BELOW

The en banc decision by the Court of

Appeals for the Fourth Circuit appears at

796 F.2d 1546 (1986) and in Appendix A,

below. It set aside an earlier panel

decision of the Circuit, which appears at

762 F.2d 381 (1985) and in Appendix B,

below. The en banc court adopted the ra-

tionale of the panel's dissenting opinion.

762 F.2d at 389-97. The district court's

opinion was not published, but appears in

Appendix C.

JURISDICTIONAL GROUNDS

A. The Court of appeals for the

Fourth Circuit entered its judgment in

this proceeding on July 28, 1986.

B. This Court has jurisdiction to

review the judgment of the Fourth Circuit

under 28 U.S.C. § 1254(1).

RELEVANT STATUTES

National Labor Relations Act § 10(b),

29 U.S.C. § 160(b).

ss 6 tae complaint shali issue

based upon any unfair labor practice occur-

ring more than six months prior to the

filing of the charge with the Board and

the service of a copy thereof upon the

person against whom such charge is made,

Labor Management Relations Act § 301(a),

29 U.S.C. § 185(a).

Suits for violation of contracts

between an employer and a labor organiza-

ticn representing employees in an industry

affecting commerce as defined in this Act,

or between any such labor organizations,

may be brought in any district court of

the United States having jurisdiction of

the parties, without respect to the amount

in controversy or without regard to the

citizenship of the parties.

West Virginia Code 55-2-6

Actions to Recover on Award or Contract

Other than Judgment or Recognize

Every action to recover money, which

is founded upon an award, or on any con-

tract other than a judgment or recogni-

zance, shall be brought within the follow-

ing number of years next after the right

to bring the same shall have accrued, that

is to say: If the case be upon an indem-

nifying bond taken under any statute, or

upon a bond of an executor, administrator

or guardian, curator, committee, sheriff

or deputy sheriff, clerk or deputy clerk,

or any other fiduciary or public officer,

within ten years; if it be upon any other

contract in writing under seal, within ten

years; if it be upon an award, or upon a

contract in writing, signed by the party

to be charged thereby, or by his agent,

but not under seal, within ten years; if

it be upon any other contract, express or.

implied, within five years, unless it be

an action by one party against his copart-

ner for a settlement of the partnership

accounts, or upon accounts concerning the

trade or merchandise between merchant and

merchant, their factors or servants, where

the action of account would lie, in either

of which cases the action may be brought

until the expiration of five years from a

cessation of the dealing in which they are

interested together, but not after.

STATEMENT OF THE CASE

This is a civil action seeking rein-

statement, backpay, emotional distress

damages, and punitive damages for the 1980

terminations of petitioners from their

jobs as coal miners at the Consoldiation

Coal Company's Four States Mine in Marion

County, West Virginia.

The controversy arose after a Febru-

ary, 1980, strike occurred at the Four

States Mine and the company (hereafter

referred to as "Consol") discharged peti-

tioner Zemonick on the theory he was the

ringleader. The miners returned to work

but walked out again after learning of

Zemonick's discharge. The strike soon

spread to other Consol mines in the area.

Consol then discharged the other ten peti-

tioners, claiming they instigated those

work stoppages. Each of the discharges

went to arbitration and by April 18, 1980,

each was upheld.

The miners immediately filed claims

with the National Labor Relations Board

and directed an attorney to prepare a

civil action against Consol. The NLRB

claims proved unsuccessful and the attor-

ney too slow. So the miners hired a sec-

ond attorney, who also failed to make

adequate progress toward litigation.

Thus, in March, 1981, the miners engaged

their third (and present) Lawyer, who then

' intiated the present litigation in state.

court in June, 1981. That filing was

almost four years in advance of the run-

ning of the then controlling statute of

limitations, as imposed by authoritative

Fourth Circuit precedent. Consol removed

the case to federal district court, which

assumed jurisdiction under 28 U.S.C. §

1331 and 29 U.S.C. § 185.

The complaint alleged that Consol, in

making the decisions to discharge, and the >

arbitrators, in affirming the discharges,

applied a standard that violated law and

public policy because it strangled miners'

rights under the National Labor Relations

Act and the federal and state constitu-

tions. In addition, plaintiffs charged

their union, District 31 of the United

Mine Workers, failed to fairly represent

them in the grievance process and their

dismissals violated the collective bar-

gaining agreement. Finally, the complaint

added several state tort claims.

Extensive discovery ensued. Plain-

tiffs deposed several witnesses, the par-

ties exchanged several sets of interroga-

tories, and thousands of pages of docu-

ments were produced and reviewed. In

1983, the plaintiffs and Consol filed

cross motions for summary judgment on the

merits of the law and public policy

claims. Both sides submitted comprehen-

sive memoranda of law.

While the cross motions for summary

judgment were pending, this Court decided

DelCostello v. International Bhd. of Team-

sters, 462 U.S. 151 (1983), which held the

applicable statute of limitations for

hybrid § 301/duty of fair representation

(DFR) claims is the six month period

stated in § 10(b) of the National Labor

Relations Act. Consol then moved to amend

its answer and add, for the first time, a

statute of limitations defense. After

that motion was granted, Consol moved for

partial summary judgment as to the plain-

tiffs' DFR/§$ 301 claims. The district

court, however, dismissed as untimely both

the DFR/§$ 301 and the law and public poli-

cy causes of action. The court then dis-

missed the state law claims for lack of

jurisdiction.

Plaintiffs appealed the decision to

the Fourth Circuit. A three-judge panel

reversed, holding that DelCostello could

not be retroactively applied to this case.

The circuit court, however, reheard argu-

ment en banc and voted, 7-3, to affirm.

ARGUMENT

I. THE CIRCUITS ARE IN SHARP CONFLICT ON

THE RETROACTIVITY OF DELCOSTELLO AND

ON APPLICATION OF THE

RETROACTIVITY ANAYLSIS.

The Lower courts are in considerable

disarray over important and recurrent

questions governing the test, set down by

this Court in Chevron Oil Co. v. Huson,

404 U.S. 97 (1971), for determining retro-

active application of a decision announc-

ing a new rule of law. The confusion is

particularly visible when the new rule

provides for a limitations period differ-

ent from that which had previously pre-

vet el: The lower courts ‘have thus split

over the retroactivity of this Court's

decision in DelCostello v. International

Bhd. of Teamscers, 462 U.S. 151 (1983),

which held the six month statute of lLimi-

tations in § 10(b) of the National Labor

Relations Act governs "hybrid" actions

brought under § 301 of the Labor Manage-

ment Relations Act claiming violations of

a union's duty of fair representation and

an employer's duties under the collective

bargining agreement.

Chevron outlined three factors for

determining whether a decision should be

applied retroactively:

First, the decision to be applied

nonretroactively must establish a new

principle of law, either by overrul-

ing clear past precedent on which

litigants may have relied, or by

deciding an issue of first impression

whose resolution was not clearly

foreshadowed. Second, it has been

stressed that 'we must... weigh

the merits and demerits in each 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 retroactive

application, for '[w]here a decision

of this Court could produce substan-

tial inequitable results if applied

retroactively, there is ample basis

in our cases for avoiding the ‘injus-

tice or hardship' by a holding of

nonretroactivity.

404 U.S. at 106 (citations omitted).

Application of those factors has

resulted in splits among the circuits over

several issues.

First, the lower courts have disa-

greed over the meaning of the first fac-

tor. Several circuits have held it must

be assessed in terms of whether there was

any nationwide dispute about the legal

principle in question, while other courts

have focused on whether there was clear

past precedent within that particular

circuit. Compare, e.g., Zemonick v. Con-

solidation Coal Co., 762 F.2d 381, 392

(dissenting opinion), adopted by the en

banc court, 796 F.2d 1546 (4th Cir. 1986);

Perez v. Dana Corp., 718 F.2d 581 (3rd

Cir. 1983) (mational survey conducted),

with Anton v. Lehpamer, 787 F.2d 1141,

1143 (7th Cir. 1986); Smith v. City of

Pittsburgh, 764 F.2d 188, 195 (3rd Cir.

1985); Abbitt v. Franklin, 731 F.2d 661

(10th Cir. 1984) (clear precedent in the

circuit controlss). The latter courts

have relied on the observation in Chevron

that the decision whose retroactivity was

there in dispute had “effectively over-

ruled a long line of decisions in the

Fifth Circuit." 404 U.S. at 107.

The circuits have also disagreed

about the degree of clarity intended by

Chevron's “clear past precedent" standard.

The Third Circuit recently stated the

proper inquiry in a statute of limitations

case to be whether "prior law [was] suf-

ficiently clear that the plaintiff could

have reasonably relied upon it in delaying

suit." Al-Khazraji v. St. Francis Col-

lege, 784 F.2d 505, ___, 40 FEP 397, 402

(3rd Cir. 1986), cert. granted, U.S.

__, 55 U.S.L.W. 3231 (1986). The Tenth

Circuit used a similar approach, pointing

to justifiable reliance by a plaintiff on

a pre-existing statute of limitations to

conclude DelCostello overruled clear past

precedent. Jones v. Consolidated Freight-

ways Corp., 776 F.2d 1458, 1462 (10th Cir.

1985). For that court, "the mention of a

new federal standard does not demonstrate

the existence of a4 majority in its favor"

or establish a sufficient basis to put a

plaintiff on notice he should hasten to

the courthouse. Id. In marked contrast,

the Fourth Circuit in adopting Judge Er-

vin's opinion found that the “mention” of

a new standard in United Parcel Service ve

Mitchell, 451 U.S. 56 (1981), precluded

the existence of any clear past precedent.

Zemonick, 762 F.2d at 392.

Second, conflict has developed over

application of the second Chevron factor,

that regarding the underlying purposes of

the decision whose retroacvtivity is in

question. Judge Ervin's opinion below,

for example, insisted that factor "cannot

vary -- it either favors retroactive ap-

plication of DelCostello in every case or

‘mot at all." Zemonick, 762 F.2d at 394

n.10. In contrast, other circuits have

concluded that different facts can have

different effects upon the precedent's

identified purposes. For example, the

Ninth Circuit has noted differing effects

between retroactive applications that

would shorten the Limitations period and

those that would extend the period. See

Glover v. United Grocers, Inc., 746 F.2d

1380 (9th Cir. 1984). In addition, Part

II, infra, explains how a finding of non-

retroactivity in this case would have a

decidedly different impact on DelCos-

tello's purposes from that which would

result in most other cases.

Third, the circuit court decisions

reflect widely varied treatment of Chev-

ron's third factor, which requires consid-

eration of equecaen that might result from

retroactive application. For example, the

Tenth Circuit has found substantial equity

in the justified reliance of a plaintiff

on a previously prevailing limitations

period. Jones, 776 F.2d at 1463. That

alone was enough to swing the third Chev-

ron factor to the plaintiff's side, even

though plaintiff had taken twenty months

to file his claim and had not expended

substantial resources in Litigation. In

contrast, Judge Ervin in Zemonick refused

to find any equities in the plaintiff's

reliance, charged that thirteen months to

file a claim were unreasonably long, ig-

nored the fact the parties had cross-moved

for summary judgment on the merits, and

dismissed the expenditure of resources

argument with the comment, "nearly every

plaintiff will have ‘expended considerable

time and money' during the trial prepara-

tion stage."

Fourth, the cases reveal considerable

confusion about the relationship between

the three Chevron factors. Some courts

have held that "all three hurdles of the

Chevron test must be passed before courts

will refuse to give a case retroactive |

effect." Zemonick, 762 F.2d at 391;

Rogers v. Lockheed-Georgia Co., 720 F.2d

1247, 1249 (11th Cir. 1983); Holzsager v.

Valley Hospital, 646 F.2d 792, 797 (2nd

Cir. 1981). Other courts, however, have

insisted "[i]t is not necessary that each

factor compel prospective application."

Jones v. Consolidated Freightways, 776

F.2d at 1460. Accord, E.E.O.C. v. Gaddis,

733 F.2d 1378 (10th Cir. 1984); Jackson Ve

City of Bloomfield, 731 F.2d 652, 655

(10th Cir. 1984)(en banc); Edwards v.

Teamsters Local No. 36, 719 F.2d 1036 (9th

Cir. 1983). Rather, "the final determina-

tion involves pulling together the three

factors for a careful balancing." Cash v.

Califano, 621 F.2d 626, 629 (4th Cir.

1980); Jones, 776 F.2d at 1461. Compare

also Northern Pipline Co. v. Marathon Pipe

Line Co., 458 U.S. 50, 88 (1982)(all three

factors "mitigate against" retroactive

application), and United States v. John-

son, 457 U.S. 537, 550 n.12 (1982) (factors

two and three considered only if the first

is satisfied), with Cipriano v. City of

Houma, 395 U.S. 701, 706 (1969) (balancing

is required), and England v. State Board

of Medical Examiners, 375 U.S. 411, 422

(1964) (same).

Fifth, the Lower courts have disa-

greed on whether the Chevron analysis

establishes a prescriptive rule for all

subsequent cases or whether it should be

applied on a case-by-case basis, with due

regard for stare decisis. The Sixth

Circuit expressly stated it did "not

agree... that the equity inquiry called

tor in Chevron is to be made on a case-by-

case basis. The prospect of a separate

statute of limitations for every section

301 plaintiff with a case pending when

DelCostello came down is unacceptable."

Smith v. General Motors Corp., 747 F.2d

372, 375 n.6 (6th Cir. 1984) (en banc).

The Fifth Circuit took the same approach

in construing Edwards v. Sea-Land Service,

Inc., 720 F.2d 857 (5th Cir. 1983), that

circuit's first ruling on DelCostello's

retroactivity. Gray v. Local 714,

I.U.0.E., 778 F.2d 1087 (Sth Cir. 1985);

Gray v. Amalgamated Meat Cutters Local

540, 736 F.2d 1055 (5th Cir. 1984). The

Second Circuit in Welyczcko v. U.S. Air,

Inc., 733 F.2d 239 (2nd Cir. 1984), also

laid down a prescriptive rule, although

that circuit's subsequent decision in

Byrne v. Buffalo Creek Railroad Co., 765

F.2d 364 (2nd Cir. 1985), belied the gen-

eralization. Judge Ervin's opinion below

in Zemonick expressed approval of Edwards,

Gray, and Welyczko, 762 F.2d at 396, and

his analysis could certainly be accused of

following their lead.

Meanwhile, other circuits have con-

strued Chevron to require an individual-

ized analysis for each case. E.g., Jones

v. Consolidated Freightways, 776 F.2d 1458

(10th Cir. 1985); Glover v. United Gro-

cers, Inc., 746 F.2d 1380 (9th Cir. 1984);

Perez v. Dana Corp., 718 F.2d 581, 588

(3rd Cir. 1983). Although the analysis

applicable to Chevron's first and second

factors will often carry over from one

case to another, their impact can vary

depending upon the prior law of the par-

ticular circuit and the law of the state

in which the cause of action arose. See,

e.g., Jones, supra; Zemonick, supra (panel

majority opinion); Carpenter v. West Vir-

ginia Flat Glass, 763 F.2d 622 (4th Cir.

1985); Pitts v. Frito Lay, Inc., 700 F.2d

330 (6th Cir. 1983).

Not surprisingly, these differences

among the circuits regarding the applica-

tion of the Chevron analysis produced

divergent holdings on the retroactivity of

DelCostello. The Fourth, Sixth, and Elev-

enth circuits now hold that decision must

be applied retroactively in all cases.

Zemonick, supra; Smith, supre; Gray, sup-

ra. The First, Second, Third, Seventh,

Eighth, and Eleventh Circuits have found

DelCostello should be asserted retroac-

tively in at least some, and probably

most, cases. Graves v. Smith's Transfer

Co., 736 F.2d 819 (1st Cir. 1984); Welycz-

ko, supra; Perez, supra; Landahl v. PPG

Indus., 746 F.2d 1312 (7th Cir. 1984);

Lincoln v. District 9, I.A.M., 723 F.2d

627 (8th Cir. 1983); Rogers v. Lockheed

Georgia Co., 720 F.2d 1247 (1983). The

Ninth and Tenth Circuits, however, have

held DelCostello should not be applied

retroactively, at least when such applica-

tion would work to shorten the Limitations

period. Peterson v. Kennedy, 771 F.2d

1244 (9th Cir. 1985); Barina v. Gulf Trad-

ing Transp. Co., 726 F.2d 560 (9th Cir.

1984); Edwards v. Teamsters Local No. 36,

supra; Jones, supra. Moreover, the Fourth

and the Sixth Circuits’ en banc decisions

both overruled panel decisions refusing

retroactive application, and the Second

Circuit may well have an intra-circuit

split on the question. See Byrne, supra

(Van Graafeiland, J., dissenting).

The cases have splintered not only on

the proper application of the Chevron

analysis, but also on whether this Court

decided the retroactivity question sub

silentio in DelCostello itself. The

Fourth Circuit below and the Second Cir-

cuit in Welyzcko concluded the DelCostello

Court's application of § 10(b) to the

cases before it resolved the issue conclu-

sively. The Tenth Circuit in Jones spe-

cifically rejected that conclusion, rea-

soning that because the retroactivity

issue was not presented in the petition

for certiorari, argued by the parties, or

discussed by the Court, no inference of a

holding on that issue could be made.

The circuits’ confusion over applica-

tion of the Chevron analysis has repeated

itself in their consideration of the retro-

activity of this Court's decision in Wil-

son v. Garcia, 471 U.S. __, 105 S.Ct.

1938, 85 L.Ed.2d 254 (1985). The splic

has been similar to that which developed

around DelCostello. The Fifth, Sixth, and

Eleventh Circuits have held, without qual-

ification, that Wilson should be applied

retroactively. Gates v. Spinks, 771 F.2d

916 (5th Cir. 1985); Mulligan v. Hazard,

777 F.2d 340 (6th Cir. 1985); Jones v.

Preuit & Mauldin, 763 F.2d 1250 (11th Cir.

1985). The Third, Ninth, and Tenth Cir-

cuits have refused retroactive application

when it would work to shorten the statute

of limitations. Al-Khazraji, supra; Gib-

son v. United States, 781 F.2d 1334 (9th

Cir. 1986); Jackson v. City of Bloomfield,

731 F.2d 652 (10th Cir. 1984). See also

Wycoff v. Menke, 773 F.2d 983 (8th Cir.

1985); E.E.0.C. v. Gaddis, 733 F.2d 1373

(10th Cir. 1984).

Presumably, this Court recognized the

circuits’ disarray over the Chevron analy-

sis when it granted certiorari in Al-

Khazraji, U.S. » 299 U.S.LeW. 3231

(1986). See also Mulligan v. Hazard,

. ——

ee -

U.S. __, 54 U.S.L.«W. 3808 (1986) (White &

Marshall, JJ., dissenting from dental of

cert.).

Appellants urge the Court to grant

their petition for certiorari and adopt

the approach that has been developed by

the Third, Ninth, and Tenth Circuits: a

decision establishing a new limitations

period should not be applied retroactively

to shorten the limitation and bar a claim

that previously would have been timely if

the plaintiff reasonably relied upon the

prior rule and pursued his claim either

before the new rule was announced or

within a reasonable time thereafter.

II. THE FOURTH CIRCUIT'S ANALYSIS

CONFLICTED WITH THAT PRESCRIBED

3Y THIS COURT IN CHEVRON OIL CO.

V. HUSON.

Relying upon the rationale in Judge

Ervin's dissent from the panel decision,

the Fourth Circuit strayed from the Chev-

ron analysis in at least three significant

regards; (1) it failed to accurately as-

sess, from the plaintiffs'/ petitioners'

perspective, the state of the law prior to

their filing of this law suit; (2) it

overlooked important distinctions in the

present case and thus miscalculated the

impact that a holding of nonretroactivity

would have on the purposes behind the

DelCostello holding; (3) it grossly mis-

judged the equitites in the case and ig-

nored facts considered important by this

Court in its Chevron decision. The fol-

lowing discussion addresses, in turn,

_ those errors.

In applying Chevron's first factor

_ and determining whether DelCostello

overruled clear past precedent, Judge

Ervin's reasoning failed to view the law

from the plaintiffs' perspective prior to

their initiation of the litigation. But

that approach must be taken to fairly

assess whether the parties reasonably

relied upon pre-existing law.

At the time petitioners' cause of

action arose, the circuits were in consid-

erable disagreement about the appropriate

limitations periods for § 301/DFR claims.

But the controversy centered solely on

which state statute of Limitations to

apply, not on whether to apply federal law

or state law. All of the circuits to have

considered the question--and there were at

least eight of them--had followed the

general rule set forth in Auto Workers v.

Hoosier Cardinal Corp., 383 U.S. 696, 704

(1966): “the timeliness of a § 301 suit .

is to be determined, as a matter of fed-

eral law, by reference to the appropriate

state statute of Limitations."

In that timeframe, § 301/DFR plain-

tiffs in West Virginia could rely on the

Fourth Circuit's clear expression in Ken-

nedy v. Wheeling Pittsburgh Steel Corp.,

81 L.R.R.M. 2349 4th Cir. 1972), that such

actions are to be governed by the state's

limitation period of five years for con-

veenill

;

{

tract claims. This Court's holding in

U.P.S. v. Mitchell, supra, did not change

circumstances for West Virginia § 301

litigants. The state does not have a

specific statute of limitations for vaca-

ting or enforcing arbitration decisions.

‘Therefore, the Fourth Circuit's determina-

tion in Kennedy that the most appropriate

state analogue was the contract statute of

five years remained the controlling prece-

dent. Moreover, the shortest Limitation

period reasonably possible under West

Virginia law was two years.

Admittedly, Mitchell included Justice

Stewart's concurrence advocating applica-

tion «. § 10(b)'s six month period and

Justice Blackmun's intimation that he

might also approve of that adoption. The

remainder of the Court expressed no opin-

ion on the proposal. Yet Mitchell was not

decided until one year after the petition

ers' claims arose, and petitioners filed

their complaint in this case just two

months after that decision was handed

down.

Thus, viewing the situation from the

petitioners' perspective, for one year

following their arbitration decisions,

they diligently sought and encouraged

three sets of lawyers to file their

claims, and those lawyers operated under

the reasonable assumption that the Kennedy

decision gave them five years within which

to file the complaint. After one year,

Mithchell's holding left Kennedy intact

and raised no concern that a period

shorter than two years could apply to

them. The Mitchell concurrences suggested

the possibility of § 10(b)'s application,

although no court anywhere had yet issued

such a holding and petitioners had no

reason prior to that time to anticipate a

six months limitation. Petitioners then

moved quickly and in two months filed

their complaint -- three years and ten

months ahead of the deadline under the

controlling law. Petitioners thus acted

in reasonable reliance on prior law by

postponing their law suit until fourteen

months after their claims arose.

Judge Ervin's opinion insisted "hat a

refusal to retroactively apply DelCostello

to this case would frustrate DelCostello's

purposes. His analysis, however, failed

to carefully account for the special facts

presented here and not presented in the

vast majority of § 301/DFR cases.

DelCostello cited three reasons for

its holding: (1) to provide sufficient

time for employees to vindicate their

rights; (2) to provide for. ceasanabiy

rapid resolution of labor disputes; and

(3) to achieve uniformity on a matter of

federal labor law. Obviously, allowing

petitioners to proceed to the merits would

not defeat this Court's concern -- perhaps

the primary concern expressed in DelCos-

tello -- that DFR plaintiffs have a rea-

sonable time in which to file their

claims.

SE PS tn That VS Iie te ReaD

The second and third DelCostello

purposes would not be threatened by a

holding of nonretroactivity here because

only a handful of states are, like West

Virginia, without a specific Limitation

period for arbitration appeals. See Del-

Costello, 462 U.S. at 166 n.15. It is

only in those states where the problems of

reliance and inequity could arise. More-

over, allowing petitioners to have their

day in court would not (as argued by Judge

Ervin) commit federal courts to hearing

long-delayed DFR claims even in the few

states without arbitration statutes.

Rather, the other Chevron factors would

require any plaintiffs to have moved

quickly to court once DelCostello was

decided -- much as petitioners did after

Mitchell.

Thus, the number of cases not subject

to a retroactive application of DelCostel-

lo would be extremely small and there

would be little compromise of DelCostel-

lo's concerns for uniformity and rapid

resolution of labor disputes. When that

marginal sacrifice is balanced against the

degree to which nonretroactivity here

would advance the DelCostello interest in

providing a reasonable filing period for

employees and against the substantial

inequity that would result from retroac-

tive application, the conclusion must be

that this case should proceed to the merit

The Fourth Circuit also completely

ignored the proper analysis, as delineated

by this Court in Chevron, of the equities

of the case. First, Judge Ervin's opinion

argued petitioners lacked diligence in

pursuing their claims. Yet as already

noted, petitioners acted on their claims

with considerable alacrity, filing them

almost four years before the deadline

established by Kennedy and just two months

after Mitchell was decided. In the world

of litigation, fourteen months to file a

case normally reflects some degree of

dtiteeecs: sok a Lack of it -- especially

when a case involves the substantial fac-

tual and legal complexities that are pre-

sent in this case. (See the summary of

the pleadings in the district court's

opinion, reprinted in the Appendix at 81-

84.)

Second, Judge Ervin contended peti-

tioners failed to offer "any sympathetic

or justifiable reason" for not filing

their case more quickly than they did.

Yet according to affidavits submitted by

Mr. Zemonick, his former counsel, and his

present counsel, plaintiffs engaged an

attorney immediately after their discharge

to represent them in getting their jobs

back. When that attorney did not act

quickly enough, and after four months had

not yet filed a law suit, petitioners

hired another lawyer, one with more exper-

ience in labor law. The second attorney,

however, also proved to be too slow to

satisfy the plaintiffs. They therefore

released him and hired a third lawyer, who

filed this action a short while later.

Thus petitioners pursued their claim

quickly and diligently, and were prevented

from filing within six months only by

their Lawyers, who labored under the ree-

sonable impression they had five years

before any deadline threatened them. (Pe-

titioners did timely file complaints with

the National Labor Relations Board.) ie

mittedly, delays by counsel cannot be the

basis for tolling a statute of limita-

tions. But when considering the equities

in a Chevron analysis, such facts do be-

come relevant.

Finally, the Fourth Circuit dismissed

as insignificant the considerable invest-

ment in time and money petitioners had

made in pursuit of their claims in the

district court. "(NJearly every plain-

tiff," wrote Judge Ervin, “will have ‘ex-

pended considerable time and money' during

the trial preparation stage." 762 F.2d at

395. That premise could be seriously

questioned -- especially when comparing

cases that have the factual and legal

complexitites of this one with more sin-

ple, one issue-one party cases. But even

assuming its validity, the premise still

missed the mark. It is relevant to the

equitites just how far the petitioners had

progressed into the litigation before they

were suddenly ousted by an abrupt change

in the law. Here, petitioners had pro-

ceeded to the edge of final determination

with cross motions for summary judgment

fully briefed and pending before the dis-

trict court.

This Court in Chevron, while deciding

against retroactivity, emphasized the in-

equity of terminating a "lawsuit that has

proceeded through lengthy and, no doubt,

costly discovery stages for a year ...."

Here, plaintiffs proceeded through almost

three years of pretrial preparation and

had submitted the significant portion of

their claims for resolution on the merits.

As Judge Haynesworth exclaimed in his

majority opinion for the original panel in

this case, “it is difficult to imagine a

greater inequity than to have the court-

house door suddenly slammed in the faces

of the plaintiffs at a time when they

apparently stood on the eve of decision on

the merits."*

The Fourth Circuit therefore signifi-

cantly departed from the analysis pre-

scribed by this Court in Chevron Oil Co.

Ve Huson.

III. THE COURT OF APPEALS' SUB SILENTIO

APPLICATION OF § 10(b)*S SIX MONTH

LIMITATION TO PETITIONERS' LAW AND

PUBLIC POLICY CLAIM CONFLICTS WITH

THIS COURT'S DECISIONS IN AUTO

WORKERS V. HOOSIER CARDINAL AND

DELCOSTELLO V. TEAMSTERS.

The primary thrust of petitioners'

complaint and of the litigation in the

*¥The inequity of the situation was

exaggerated in this case because defen-

dants never raised the statute of limita-

tions defense until atter DelCostello was

decided -- over two years into the Litiga-

tion. That failure by the defendants also

supports petitioners' position that Del-

pesteae marked a departure in the law for

pense gg. arp litigants that was not rea-

onbis oreseeable.

district court focused on their claim that

their discharges violated law and public

policy. That claim contended the stan-

dards applied by the employer and the

arbitrators, pursuant to decisions promul-

gated by the Arbitration Review Board

under a former U.M.W.-B.C.0.A. contract,

were so grossly overbroad and vague they

severely invaded the free speech and other

rights of miners. The petitioners' un-

derlying theories were premised upon in-

terpretatious of federal and state consti-

tutional provisions, state tort law, and

the National Labor Relations Act. Essen-

tially, petitioners contend the challenged

standards permit discharge of any miner

who is identified in the vicinity (a very

loosely defined area) of a mine during a

wildcat strike, regardless of whether the

miner is engaged in legitimate communica-

tion or in wholly innocent, activity. (For

example, one of the petitioners was diss

charged after he was identified in his

front yard, which happened to be about two

miles from a mine.)

The Fourth Circuit failed to directly

address petitioners’ contention that their

law and public policy claims are not gov-

erned by the statute of limitations in

§ 10(b), but are controlled by the most

appropriate state analogue. The Circuit

Court's failure must therefore be taken as

a sub silentio denial of petitioners'

contention. That ruling squarely con-

flicts with this Court's decisions in

DelCostello and Auto Workers v. Hoosier

| Cardinal, 383 U.S. 696 (1966).

Hoosier Cardinal expressly rejected

the argument that § 10(b) should be ap-

plied to § 301 contract enforcement suits:

"although a uniform Limitations provision

for § 301 suits might well constitute a

desirable statutory addition, there is no

justification for ‘the drastic sort of

judicial legislation that is urged upon

us." 383 U.S. at 702-03. DelCostello

left intact the presumption relied upon in

Hoosier Cardinal that "absent some sound

reason to do otherwise, Congress would

likely intend that the courts follow their

previous practice of borrowing state pro-

visions." DelCostello, 462 U.S. at 158

n.12. The Court cautioned that its hold-

ing there "should not be taken as a depar-

ture from prior practice in borrowing

limitations for federal causes of action,

in Labor law or elsewhere. We do not mean

to suggest that federal courts should

eshew use of state limitations periods

anytine state law fails to provide a per-

fect analogy." 462 U.S. at 171.

DelCostello concluded the the general

presumption in favor of state limitations

was overcome in that case by two concerns:

(1) the practical difficulties created by

the unusual hybrid nature of § 301/DFR

actions, and (2) the interplay of the

limitations periods with federal labor

policy. As shown below, neither of those

is present when dealing with law and pub-

lic policy challenges to arbitration

decisions.

DFR litigation generally requires a

plaintiff to essentially prove two law

suits -- that the union violated its duty

to fairly represent the plaintiff in the

grievance process and that the employer

violated plaintiff's rights under the

collective bargaining agreement. This

bifurcated proof requirement meant no

analogous state statute of limitations

neatly fit both theories.

Petitioners' law and public theory,

however, is not a hybrid action. It pro-

ceeds only against the employer and re-

quires determination of only one claim for

relief. There is, therefore, no complica-

tion from applying one statute to one

defendant and another limitation to an-

other defendant. Moreover, as explained

below, state Limitations on contract ac-

tions comfortably fit such a claim.

DelCostello's second concern -- that

relating to the interplay with federal

labor law -- is similarly inapplicable.

DelCostello emphasized the duty of fair

representation almost invariably raises

the probability of an unfair labor prac-

tice. That being so, the § 10(b) limita-

tion would be most appropriate, given its

primary application in unfair labor prac-

tice cases under § 8 of the N.L.R.A. In

addition, De Vostello highlighted an im-

portant federal labor policy in giving

adequate time for employees to protect

their N.L.R.A. rights and in providing for

speedy resolution to grievance disputes.

Commercial arbitration laws defeated the

former policy and the extended time for

malpractice statutes cut against the

latter.

In cases of law and public policy

challenges to arbitration decisions, those

practicalities are either nonexistent or

greatly minimized. Although a portion of

petitioners' claim raises analogies to

unfair labor practice law, much of the

argument focuses on laws and policies

created in constitutional or other statu-

tory provisions. More importantly, law

and public policy challenges, when viewed

in their generic form, rarely raise unfair

labor practice issues. Certainly, that

theory is not restricted to concerns of

federal labor policy.

DelCostello's concern for giving em-

ployees adequate time to vindicate their

federal labor law rights would certainly

not be endangered by adopting a state

contract or tort statute of limitations.

The additional concern for encouraging

quick resolution of labor disputes is

overridden by countervailing considera-

tions in the underlying theory of peti-

tioners' claim that the arbitrators' stan-

dards violate law and public policy.

While it would be desirable to quickly

resolve any issues relating to the con-

struction of a collective bargaining

agreement, rapid resolution cannot be as

’ important as the paramount "public poli-

1 cies" -- whether legislatively or consti-

; tutionally imposed -- that form the basis

} of the claim for relief. If those poli-

_ cies are not paramount in a given case,

then that merely means the plaintiffs lose

on the merits. Because of the importance

of the societal interest in our laws and

public policies, there needs to be some

mechanism by which parties can raise such

issues without the restriction of a rela-

tively severe statute of limitations. If

nothing else, the complexity that invaria-

bly attends such cases would militate

toward a more comfortable limitation.

Finally, there is an easily identi-

fiable and precise state analogue availa-

ble. The petitioners' theory is essen-

tially a very traditional contract action.

From the earliest days of common law de-

velopment, contracts have been subject to

challenge for inconsistency with laws and

public policy. See, e.g., Billingsley v.

Clelland, 41 W.Va. 234, 244 , 23 S.E. 812,

815 (1895); WILLISTON ON CONTRACTS §§

1628-30. This case, therefore, bears a

telling resemblance to the facts in Hoo-

sier, which applied the state contract

limitations. As in Hoosier,

The present suit is essentially an

action for damages caused by an al-

leged breach of an employer's obliga-

tion embodied in a collective bar-

gaining agreeement. Such an action

closely resembles an action for

breach of contract cognizable at

common law."

383 U.S. at 705 n.7.

The crucial distinction between Del-

Costello, on the one hand, and Hoosier

Cardinal and this case, on the other, is

apparent. DelCostello selected the most

appropriate Limitations for a hybrid ac-

tion that originated only upon the passage

and case law development of the modern

federal labor statutes. But Hoosier se-

lected the most appropriate Limitation for

a traditional, single-defendant contract

claim. Petitioners’ law and public policy

action fits that latter mold and chus

requires a similar statute of Limitation

attend it.

CONCLUSION

This petition for certiorari should

be granted to resolve serious conflicts in

the circuits and clarify important and

recurrent isses regarding the Chevron

analysis and § 301 Litigation.

Respectfully submitc¢d,

Robert M. Bastress

P.O. Box 1295

Morgantown, W.Va. 26505

(304) 293-5301

COUNSEL FOR PETITIONERS

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Michael Zemonick, et al.,

Appellants,

v. . No. 84-1353

Consolidation Coal Company,

a corporation, et al.,

Appellees.

Appeal from the United States District Court

for the Northern District of West Virginia,

at Elkins. Robert E. Maxwell, District Judge.

Argued: February 3, 1986 Decided: July 28, 1986

Before RUSSELL, WIDENER, HALL, PHILLIPS,

MURNAGHAN, SPROUSE, ERVIN and CHAPMAN,

a Judges and HAYNSWORTH, Senior Circuit

Judge.

Robert M. Bastress (Barbara J. Fleischauer;

West Virginia College of Law on brief) for

Appellants; Robert M. Steptoe, Jr. (C. David

Morrison; Steptoe & Johnson) for Appellee

Consolidation Coal Company; (Michael J. Aloi;

Manchin, Aloi & Carrick on brief) for

Appellee District 31, United Mine Workers of

America

*Chief Judge WINTER did not participate.

PER CURIAM:

The district court dismissed these

hybrid § 301/DFR claims as barred by the si;

months Limitation period established by the

Supreme Court of the United States in

DelCostello v. Teamsters, 462 U.S. 151

(1983). The plaintiffs appealed to this

court, and the majority of the three judge

panel hearing the appeal reversed the

district court, holding that DelCostello

should not have been given retroactive effec

in this case, and remanding the case to the

district court for further proceedings.

Zemonick v. Consolidation Coal Co., 762 F.2d

381 (1985). One member of the panel

dissented, expressing the views (1) that the

supreme Court in DelCostello had already

resolved the issue of retroactivity against

the plaintiffs and (2) even if it is

appropriate to conduct an independent

BEST AVA

analysis of retroactivity under Chevron Oil

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

factors require that DelCostello be given

retroactive rather than prospective

application to these facts.

A majority of the active judges of this

court subsequently voted to give en banc

consideration to the issues raised by this

appeal. Following briefing and oral argument,

it was held that the district court did not

err when it applied DelCostello retroactively

in this case and that the decision of the

court should be affirmed. Since the rationale

for the en banc court's decision is

adequately reflected in the dissenting

opinion in Zemonick v. Consolidation Coal

Co., 762 F.2d 381, 389-397 (1985), no useful

purpose would be served by repeating it here.

AFFIRMED.

LABLE COPY

HAYNSWORTH, Senior Circuit Judge, with whom

Judge Russell and Judge Hall join,

dissenting:

I dissent for the reasons set forth in

the majority panel opinion in Zemonick v.

Consolidation Coal Co., 762 F.2d 381, 382-89

(4th Cir. 1985).

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Michael Zemonick, et al.,

Appellants,

V. No. 84-1353

Consolidation Coal Company,

a corporation, et al.,

Appellees.

Appeal from the United States District Court

for the Northern District of West Virginia,

at Elkins. Robert E. Maxwell, District Judge.

(C/A 81-36).

Argued October 3, 1984 Decided May 22, 1985

Before HALL and ERVIN, Circuit Judges, and

HAYNSWORTH, Senior Circuit Judge

Robert M. Bastress (Barbara J. Fleischauer on

brief) for Appellants; Robert M. Steptoe, Jr.

(C. David Morrison; Michael J. Aloi, Manchin

& Aloi on brief) for Appellees.

HAYNSWORTH, Senior Circuit Judge:

Plaintiffs, eleven former employees of ©

Consolidation Coal Company, were discharged i

for allegedly instigating a wildcat strike.

Each plaintiff took his discharge to

arbitration, where the dismissals were

upheld. In July 1981, approximately sixteen

months after the discharges and thirteen

months after the last of the arbitration ©

decisions upholding the discharges, the

plaintiffs commenced this action in a state

court against the employer and the union.

They asserted Vaca-Hines hybrid claims, |

charging the employer with a breach of the

collective bargaining agreement and the unior

with failure to discharge its duty of fair |

representation in the grievance and |

1. Vaca v. Sipes, 386 U.S. 171 (1967); Hines

v. Anchor Motor Freight, 424 U.S. 554 (1976).

arbitration proceedings.

The employer removed the case to the

United States District Court for the Northern

District of West Virginia where the parties

commenced extensive discovery and pretrial

proceedings, culminating in cross motions for

summary judgnedt.. There was no suggestion

that the commencement of the proceedings were

untimely until July 11, 1983, after the

decision of the Supreme Court of the United

States in DelCostello v. Teamsters, U.S.

__, 103 S.Ct. 2281 (1983). In DelCostello,

the Supreme Court held for the first time

that such hybrid § 301/DFR claims are subject

to the six months period of tumséecious te

§ 10(b) of the National Labor Relations Roe

which governs the filing of charges of unfair

labor practices with the National Labor

2. 29 U.S.C.A. § 160.

Relations Board. Noting that this court, in

Murray v. Branch Motor Express Co., 723 F.2d

1146 (4th Cir. 1983), had held that

DelCostello was to be applied retroactively,

the district court dismissed this action as

having been barred by the six months

limitation period.

Because the circumstances of this case

are quite different from those presented in

Murray and because, with respect to these

West Virginia plaintiffs, DelCostello

represented an abrupt change from what

appeared to have been settled law, we think ©

DelCostello was improperly given retroactive

effect in this case.

Since there was no federal statute of

——--

limitations directly applicable to actions

against an employer under § 301(a) of the

Labor Management Relations Act, the

Supreme Court held in United Autor Workers Ve

Hoosier Cardinal Corp., 383 U.S. 696 (1966),

that the court should borrow from state law

the period of limitations most analogous to

such an action. Accordingly, this court held

in Kennedy v. Wheeling-Pittsburgh Steel

Corp., 81 L.R.R.M. 2349, 69 CCH Labor Cases P

12,980 (4th Cir. 1972), that the applicable

period of limitations for hybrid actions such

as this was supplied by West Virginia's

statute Limiting actions on oral contracts to

five years. See also Howard v. Aluminum

Workers International Union, 589 F.2d 771

(4th Cir. 1978).

In the interim between the decisions of

the Supreme Court in Hoosier Cardinal Corp.

3: ae U.5.C.A. sec. 185(a).

and DelCostello, there was another

significant decision of that Court. United

Parcel Service, Inc. v. Mitchell, 451 U.S. 5

(1981). The United States District Court for

the Eastern District of New York had held

that Mitchell's claim was governed by New

York's ninety day statute of limitations

applicable to actions to overturn an

arbitration award. The United States Court of

Appeals for the Second Circuit had reversed,

624 F.2d 394 (1980). The Court of Appeals had

held that the relevant statute was New York's

six year statute applicable to actions on

contracts. The employer, but not the union,

sought and obtained a writ of certiorari, and

the Supreme Court, agreeing with the district

court, held that the action against the

employer was barred by New York's ninety day

limitation upon actions to set aside an

a ee eee ee etnaeiis

arbitration award. Mr. Justice Stewart, ina

separate concurrence, embraced the position

of the AFL-CIO, as amicus curiae, that the

controlling limitations period should be

taken from § 10(b) of the National Labor

Relations Act, but the other members of the

Court declined to consider that contention

since it had not been advanced by either of

the parties. Justice Stevens filed a separate

' opinion in which he emphasized the fact that

the Court did not have before it the question

of the applicable period of limitations to

the claim against the union, and contended

that the ninety day period for actions

attacking an arbitration award should not be

applied to the claim against the union.

So matters stood when this action was

filed in West Virginia. Most of the states

have very short periods of limitation,

typically ninety days, for actions seeking to

overturn an arbitration award, but West

Virginia is one of the few states that has

statute specifically applicable to such

actions. Thus, the holding of the Supreme

Court in Mitchell had no relevance to the

question of timeliness of the commencement

this action in West Virginia. A careful

lawyer might have given some consideration

the straw in the wind to be found in Justi

Stewart's concurring opinion in Mitchell a

the declination of the other justices to

consider the contention, but the controlli

authority remained Hoosier Cardinal Corp. |

applicable period of limitations was to be

borrowed from state law, and, since West

Virginia had no statute specifically

applicable to suits to overturn arbitratio

awards, our earlier decision holding that |

timeliness question was governed by West

he |

Virginia's five year statute for the

commencement of an action on an oral contract

was controlling.

II.

Nothing the Supreme Court did in

DelCostello forecloses our consideration of

the retroactive aj lication of that decision,

in the circumstances of this case, under the

standards of Chevron Oil Co. v. Huson, 404

U.S. 97 (1971). Im DelCostello, the Supreme

Court applied the new rule to the plaintiffs

in the two consolidated cases before it, but

in neither case was there a potential problem

with retroactive applicable under the

Chevron standards.

DelCostello, himself, brought this

action in the District Court of Maryland,

and, under Mitchell, the district court

properly held that the applicable limitations

period was that contained in Maryland's

AILABLE COPY

thirty day statute for actions to vacate an

arbitration averd. 524 F. Supp. 721 (D. Md.

1981). This court affirmed on the district

court's opinion. 679 F.2d 879 (4th Cir. 1982)

(Mem.). Thus, the “retroactive” application

of DelCostello's new rule to DelCostello,

himself, had the effect of increasing the

limitations period, not decreasing it.

Indeed, the Supreme Court remanded

DelCostello's case for consideration of

possible tolling so as to make the filing of

the complaint timely under the new six months

rule. DelCostello thus benefited from the

retroactive application of the new rule, and

in no sense was hurt by ic.

Flowers, the plaintiff in the

consolidated case decided with DelCostello,

suffered a dismissal of his action in the

Western District of New York. That court held

BEST AVAI

that the relevant limitations period was the

ninety day period provided by New York's

statute for the commencement of actions to

vacate an arbitration award. The Court of

Appeals for the Second Circuit reversed,

holding that the relevant period for both

branches of the claim was New York's six year

statute for the commencement of actions on

contracts. 622 F.2d 573 (2nd Cir. 1980)

(Mem.). That decision, however, was vacated

by the Supreme Court, which remanded the case

to che Court of Appeals for reconsideration

in the light of Mitchell. Upon

reconsideration, that court held, as required

by Mitchell, that the action against the

employer was barred by the ninety day statute

for actions to vacate arbitration awards but

that the claim against the union was governed

by New York's three year statute for the

commencement of actions for malpractice.

ABLE COPY

Flowers v. United States Steel Workers of

America, 671 F.2d 87 (2d Cir. 1982). The

Supreme Court's application of the new six

month rule to both branches of the claim thus

enlarged the applicable period of limitations

for the claim against the employer. It

reduced the limitations period held to be

applicable by the Court of Appeals for the

Second Circuit, but enlarged the Limitations

period initially held to be applicable by the

district court. In any event, from the

outset, Flowers was aware of New York's

ninety day limitation period for the

commencement of an action to set aside an

arbitration award, and was chargeable with

knowledge that the ninety day period might be

held to be the relevant one, just as the

district court had held.

Neither DelCostello nor Flowers was in a

position to claim that the decision in

DelCostello, in application to him, would

substantially and unfairly disadvantage hin.

No one would have perceived any retroactivity

problem if, when the case first came before

it, the Supreme Court had reversed the Court

of Appeals for the Second Circuit in Flowers

and held that the district court was

correct initially in applying the ninety day

period for actions to vacate arbitration

awards.

Application of the new rule to the two

cases before the Court simply does not

suggest that, in other cases, application of

the new rule, under quite different

circumstances, might not appropriately call

for consideration of a retroactive

application under the Chevron standards.

Nevertheless, two courts of appeals have

held that the Supreme Court's decision in

DelCostello, itself, forecloses any

consideration of a contention that its rule

be applied only prospectively. Welyczko v.

U.S. Air, Inc., 733 F.2d 239 (2d Cir. 1984),

cert. denied U.S. __ , 105 S.Ct. 512

(1984), Smith v. General Motors Corp., 747

F.2d 372 (6th Cir. 1984). See also Gray v.

Amalgamated Meat Cutters Local 540, /36 F.2d

1055 (Sth Cir. 1984).

The plaintiff in Welyczko had waited

five years to commence his action, and he

should have known that a much shorter

limitations period might be held applicable

to him, particularly New York's ninety day

period for the commencement of an action to

vacate an arbitration award. The case simply

presented no occasion for a detailed analysis

under Chevron.

The position of at least some of the

plaintiffs in Smith seems to have been

different, but the majority of the en banc

court for the Sixth Circuit chose to follow

Welyczko and what it understood to be the

lead of other circuits, including this one,

in giving retroactive application to

DelCostello, apparently without noticing that

in those cases, application of the

DelCostello rule had had the effect of

enlarging, rather than shortening, the

applicable period of limitations. One judge

concurred in the judgment, but not in the

reasoning of the majority. He had been

through a Chevron analysis in Lawson v. Truck

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

denied, 104 S.Ct. 69 (1983), and he thought

that case required a retroactive application

of DelCostello in Smith. Two judges

4. Earlier, the Court of Appeals for the

Sixth Circuit in Badon v. General Motors

(continued)

dissented.

In any event, in this case, under

circumstances in which a retroactive

application of DelCostello presents manifest

unfairness, we decline to follow Welyczko and

Smith.

III.

Resolution of the question of

retrospective application of the decision of

the Supreme Court in DelCostello is

controlled by the guidelines laid down in

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

Corp., 6/9 F.2d 93 (6th Cir. 1982), after the

upreme Court's decision in Mitchell but

before its decision in DelCostello, picked up

Justice Stewart's position in Mitchell and

held that the six month period of sec. 10(b)

of the National Labor Relations Act applied

to the hybrid claim. In Pitts v. Frito La

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

Circuit held that its decision in Badon was a

significant departure from earlier precedent

and, under the Chevron standards, would not

be applied, retroactively.

Under those guidelines, we are to consider

whether the decision in DelCostello overruled

"clear past precedent on which litigants may

have relied," whether "retrospective

operation would further or retard [the new

law's] operation" and whether an "inequity

[is] imposed by retroactive application."

Applying these guidelines we think the

DelCostello decision should not be applied

retroactively in this case.

In the context of West Virginia's

statutes, the decision in DelCostello was a

clean break with the past. It overruled

direct precedent in this court upon which the

plaintiffs in this case justifiably relied.

Since, as we have noted, West Virginia,

unlike the great majority of the states, has

no statute of Limitations expressly

applicable to actions to vacate arbitration

awards, we had determined that the applicable

statute under the rule of United Auto Workers

v. Hoosier Cardinal Corp. was West Virginia's

five year statute applicable to actions upon

oral contracts. Kennedy v. Wheeliing-

Pittsburgh Steel Corp., 81 L.R.R.M. 2349, 69

CCH Labor Cases P. 12,980 (4th Cir. 1972).

See also Howard ve Aluminum Workers

International Union, 589 F.2d 771 (4th Cir.

1978). That appears to have been the settled

rule which remained unquestioned until after

the Supreme Court's decision in DelCostello

came down. Indeed, in their responsive

pleadings, the defendants in this case raised

no question of the timeliness of the filing

of the complaint. They responded to the

merits, and both the plaintiffs and

defendants proceeded with extensive pre-trial

discovery and preparation until the filing of

cross~motions for summary judgment on the

merits.

Neither party seems to have thought that

the decision of the Supreme Court in United

Parcel Service v. Mitchell created any

possible question of timeliness. In

retrospect, we cannot say that it did. Since

West Virginia had no statute expressly

dealing with limitations upon actions for the

vacation of arbitration awards, the holding

in Mitci..11 had no direct application to an

action commenced two months later, as this

one was, in West Virginia. The only possible

relevance of the opinions in Mitchell stems

from the concurring opinion of Justice

Stewart in which he expressed the thought

that the courts in these hybrid actions

should not borrow state statutes of

limitations but should borrow the six months

limitation for the filing of charges of

unfair labor practices under § 10(b) of the

National Labor Relations Act. No other

justice joined him in that suggestion: they

simply declined to consider it. From Justice

Stewart's opinion and the circumstances under

which the other justices declined to even

consider the suggestion that § 10(b) was

controlling, one might have speculated that

in some later case other justices might join

Justice Stewart, but the opinions in Mitchell

hardly gave fair warning of what was to come

in DelCostello. A lawyer in West Virginia

still might have placed reasonable reliance

upon the still controlling authority of

United Auto Workers v. Hoosier Cardinal Corp.

and the decisions of this court holding that

the most relevant of West Virginia's statutes

of limitations was the Limitation upon

actions upon oral contracts. We simply do not

think that the lawyers for the plaintiffs and

defendants in this case can be faulted for

not having found in the opinions in Mitchell

a clear on ian ite of the decision in

DelCostello.

At the time this action was filed,

therefore, the applicable precedents clearly

gave the plaintiffs five years within which

to commence their action. The action was

filed well within that time by the third

lawyer retained by the plaintiffs; the first

two having been dismissed for failure to

proceed with the alacrity expected of them by

the plaintiffs.

In Murray v. Branch Motor Express Co.,

>. Lt may bear mention that the complaint in

this action was filed just over two months

after the decision in Mitchell was announced.

The decision in Mitchell was announced on

April 20, 1981, and the complaint in this

case was filed on June 26, 1981.

723 F.2d 1146 (4th Cir. 1983), we held that

the decision in DelCostello was co be applied

retroactively, approving a statement in Perez

v. Dana Corp., Parish Frame Div., 718 F.2d

581 (3rd Cir. 1983), that the decision in

DelCostello was not an abrupt break with past

precedent upon which the plaintiff might

reasonably have relied. The law as it existed

before DelCostello was described as erratic

and inconsistent. In the context of Murray,

the description was appropriate. The case had

arisen in Maryland, and the district court

had applied Maryland's thirty day statute

applicable to actions to vacate arbitration

awards. By early 1983 it might have been

thought that the question, under Maryland's

statutes, had been settled by the Supreme

Court's decision in Mitchell, but the course

of decision there, and in most of the rest of

lad

the country, had certainly been erratic. Nor

had Mitchell settled all of the problems,

because a few of the states had no statutes

‘expressly applicable so actions to vacate

arbitration awards, and some of those that

had such statutes had an unreasonably short

period of limitation, such as Maryland's

thirty day period.

Similarly, in Sine v. Local No. 992

International Brotherhood of Teamsters, 730

F.2d 964 (4th Cir. 1984), we held DelCostello

retroactively applicable to an action

commenced in the District of Maryland. The

district court had dismissed the action as

untimely under Maryland's thirty day statute

for the commencement of actions to vacate

arbitration awards. The action had been

commenced within six months of its accrual,

so that the retroactive application of

DelCostello did not introduce the question of

timeliness but eliminated it.

Nothing in Murray or Sine, therefore, is

applicable to the problem we face. In West

Virginia, the prior law had neither been

erratic nor inconsistent. Indeed, the

responses of the defendants in this case

indicate that in June 1981, West Virginia

lawyers did not think that any Limitations

period shorter than West Virginia's five year

contract claim statute was, or might be,

applicable to this action. Established

precedent justified that belief.

A conclusion that DelCostello should be

applied prospectively only in the

circumstances of this case would not be

disruptive of any great design of the laws of

the United States.

Unquestionably one of the underlying

policies of the laws of the United States

favors relatively quick resolution of labor

disputes and controversies arising out of

collective bargaining agreements. This is

strongly suggested by the six month

limitation for the filing of unfair Labor

practice charges under § 10(b) of the

National Labor Relations Act. The Court's

specific endeavor in DelCostello, however,

was to enlarge the short period of

limitations authorized by Mitchell in states

having statutes of limitations specifically

applicable to actions to vacate arbitration

awards. Maryland's thirty day period and the

typical ninety day period were simply too

short to permit inexperienced and uncounseled

employees to obtain lawyers and to file their

complaints. The Court, too, was impressed by

the fact that § 10(b) provided a more apt

analogy than state statutes enacted without

regard to controversies arising under federal

labor relations laws. Borrowing the federal

limitations period contained in § 10(b) would

also provide a uniform rule applicable

throughout the country and without regard to

varying state statutes.

None of these general policies or

considerations would be furthered or promoted

by a holding that the new rule should not be

retroactively applied in the circumstances of

this case. Equally strong or stronger,

however, is the federal policy exemplified by

DelCostello itself, that aggrieved employees

should have a fair opportunity to file their

Vaca-Hines complaints. That policy would

surely be subverted by retroactive

application of the DelCostello six months

limitation to an action that had been filed

without extraordinary delay and which had

proceeded to a development of the issues on

the merits to the point of decision on cross-

motions for summary judgment without any

question of timeliness having been raised.

Moreover, those other general

considerations would not be subverted by a

Limitation of DelCostello to prospective

application in the circumstances of this

case. The implementation of those policies

would not be significantly retarded. There

are only a few states which have no statutes

limiting commencement of actions to vacate

arbitration awards. Recognition that actions

arising in those states require separate

consideration would occasion some slight

delay in complete implementation of the

DelCostello rule in those states, but that

delay is not of great moment, and, in those

states, DelCostello's bar would unerringly

and indisputably finally fall a few months

after DelCostello was announced in June of

1983. Hence, a holding that DelCostello

should not be retrospectively applied in this

case favors the general policy of fairness

without substantially detracting from early

implementation of senee tatniad policies

underlying the decision in DelCostello.

A retroactive application of

DDelCostello in the circumstances of this

case shouts of inequity. If we assume, as we

must, that the plaintiffs have meritorious

claims upon which they were entitled to

prevail, or, at least, to a reasoned decision

on the merits, belated erection of a

procedural bar is an unwarranted frustration

of their reasonable expectations of

adjudication on the merits.

When the complaint was filed, it was

well within the alloted time under the

established precedent of this court. We had

borrowed the most analogous of West

Virginia's statutes of limitations under the

direction of the Supreme Court in Auto

Workers. Neither defendant raised any

question of timeliness, for, under the state

of law as it existed in June 1981, the filing

of a motion to dismiss would have appeared

only a futile and wasteful imposition upon

the court and counsel. Instead, for almost

two years before DeiCostello came down, the

parties devoted themselves to pretrial

discovery and preparation. Before any

suggestion of untimeliness was made, cross

motions for summary judgment had been filed.

The case apparently was ready for final

determination on the»merits. The plaintiffs

have expended considerable time and effort in

the development of their case on the merits;

they had a considerable investment in the

prosecution of their claims. Under these

circumstances, it is difficult to imagine a

greater inequity than to have the courthouse

door suddenly slammed in the faces of the

plaintiffs at a time when they apparently

stood on the eve of decision on the merits.

They had been long in the court, and their

cases were fully developed when the district

judge announced, in effect, that he was

closing the book because the plaintiffs

should never have crossed the threshhold of

the courthouse door more than two years

earlier.

Given the reasonable reliance of the

plaintiffs upon what appeared to be

established and solid precedent and the full

development by the parties of their proofs on

the merits, equity and fairness required that

the court not abruptly turn a deaf ear to

them.

Another panel of this court considered a

comparable situation in Peterson v. Air Line

Pilots Assn., F.2d (No. 84-1186, 4th

Cir. 1985). It refused to apply the

DelCostello bar on the ground that the

defendant had waived its right to assert the

bar. In doing so, however, it emphasized the

inequity of enforcing a time bar mn a case in

which there had been extensive pretrial

discovery and preparation with no suggestion

of a problem of timeliness. In this case, the

plaintiffs did not contend that the

defendants had waived their right to assert

the time bar, but the inequity of applying

the six months time bar here is equally as

apparent as it was in Peterson. We reach the

same result under a Chevron analysis.

‘aa

IV.

There are a number of cases applying

DelCostello retroactively in which the

plaintiff would otherwise have been held

‘barred by a shorter period of Limitations or.

in which there was reasonable notice that a

shorter period might be held alae,

Those cases do not bear upon our problem, forf

there was no inequity involved.

The Ninth Circuit was held DelCostello

not to be applied retroactively in cases in

6. Perez v. Dana Corp., Parish Frame Div.,

718 F.2d 581 (3rd Cir. 1983);

Storck v. International Brotherhood of

Teamsters, Local Union No. 600, 71Z F.2d T1194

(7th Cir. 1983);

Andres v. Local 600, International

Brotherhood of Teamsters, 724 F.2d 73 (8th

Gils Se

Askew v. F & W Express, Inc., 723 F.2d

624 (8th Cir. 1983), cert. denied, U.S.

, 105 S. Ct. 292 (T1984);

~~ Arrow v. Pulitzer Publ Co., 723 F.2d 622

(8th Cir. 1983);

Hand v. International Chemical Workers

Union, 712 F.2d 1350 (iith Cir. 1983).

which there had been substantial development

of the merits. Barina v. Gulf Trading &

Transportation Co., 726 F.2d 560 (9th Cir.

1984), Edwards v. Teamsters Local No. 36, 719

F.2d 1036 (9th Cir. 1983), cert. denied,

U.S. , 104 §.Ct. 1399 (1984).

The District Court for the Northern

District of West Virginia similarly held that

DelCostello was not to be applied

retroactively to require the dismissal of a

West Virginia claim such as this. Sole v.

Thoroughfare Markets, Inc., 571 F. Supp. 1233

(N.D. W.Va. 1983).

Moreover, after anticipating the Supreme

Court's holding in DelCostello, in Badon v.

General Motors Corp., 679 F.2d 93 (6th Cir.

1982), the Court of Appeals for the Sixth

Circuit held, in Pitts v. Frito Lay, Inc.,

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

six months limitation borrowed from § 10(b)

of the NLRA should not be applied

retroactively.

There are a few cases going the other

way. Graves v. Smith's Transfer Corp., 736.

F.2d 819 (1st Cir. 1984), Rogers v. Lockheed-

Georgia Co., 720 F.2d 1247 (11th Cir. 1983),

cert. denied, U.S. , 405 S.CE. 292

(1984), and Edwards v. Sea-Land Services,

Inc., 720 F.2d 857 (5th Cir. 1983). In those

cases, however, the Chevron analysis was not

so clearly weighted in favor of a prospective

limitation. In one, there was no apparent

reliance upon clearly established earlier

precedent. Edwards. In another, there had

been no substantial investment in time or

money in the preparation of the case on the

merits since the motion to dismiss on

limitation grounds had been filed promptly

after the filing of the complaint. Graves.

In this case in which the equities weigh

so strongly against a retroactive application

of DelCostello and in which defense counsel

as well as plaintiffs' counsel saw no problem

about timeliness until after DelCostello was

decided and this case was ready for

disposition on the merits, we think that the

Chevron analysis properly leads to a

conclusion against retroactive application of

DelCostello.

This problem will shortly go away,\if it

is not already gone, but we think these

plaintiffs should have "a satisfactory

opportunity" to have their cases decided on

the merits, an opportunity which the Supreme

Court in DelCostello clearly sought to

protect.

The judgment of the district court

dismissing the complaints is reversed and the

case remanded for further proceedings.

REVERSED AND REMANDED.

ERVIN, Circuit Judge, dissenting:

I cannot agree with the majority's

conclusion that DelCostello should only be

given prospective effect in this case. In my

view, the majority has strayed afar from the

Supreme Court's clear command in DelCostello

itself to apply the six-month statute of

limitations retroactively even where, as

here, a § 301/DFR claim that would be timely

under the applicable statute statute is time

barred under DelCostello. Although the

Supreme Court's retroactive application of

DelCostello makes an independent analysis of

retroactivity unnecessary, I am also

convinced + the majority has misapplied

the Chevron test in this case. For these

reasons, I respectfully dissent and would

affirm the judgment of the district court.

I. Chevron Oil Co. v. Huson, 404 U.S. 97

(19/71).

The Supreme Court Has Already Resolved

The Question of Retroactivity

For reasons that are unclear to me, the

majority has essentially ignored the Supreme

Court's retroactive application of the six-

month limitations period for § 301/DFR claims

in DelCostello and its companion case.

DelCostello brought his § 301/DFR claim

nearly eight months after his cause of action

arose. 462 U.S. at 155. The district court

held that DelCostello's claim was time barred

under Maryland's 30-day statute of

limitations for actions to vacate arbitration

awards. Id. at 156. The Supreme Court,

however, applied the six-month Limitations

period retroactively and remanded DelCostello

2. Delcostello was consolidated with United

Steelworkers v. Flowers, 462 U.S. 151 (1983).

back to the district court to determine

whether certain events not inquired into

below had operated to toll the running of the

statute of Limitations. Id. at 172. The

Supreme Court also applied the six-month

statute of Limitations retroactively in

Flowers. Id. The plaintiffs in Flowers

allowed ten months to elapse after their

cause of action arose before they filed suit.

Id. Although the Second Circuit found their

suit to be timely under a three-year state

statute of limitations, the Supreme Court

retroactively applied the six-month

limitations period and dismissed the suit as

time barred. Id.

As the majority points out, Zemonick's

3. On remand, the district court refused to

toll the running of the six-month Limitations

period for § 301/DFR claims and dismissed

DelCostello's suit. DelCostello v. Teamsters,

588 F. Supp. 902, 909-11 (D. Md. 1984).

suit is timely under the applicable West

Virginia statute of limitations but would be

untimely under the DelCostello rule. On this

4/7

basis, our previous decisions in which we

applied DelCostello retroactively may be

distinguished insofar as the six-month

limitations period exceeds the time allowed

under the applicable state statutes in each

case. Application of DelCostello

retroactively in those cases, therefore,

extended rather than curtailed the time

within which a § 301/DFR claim could be

filed. The Supreme Court's holding in

Flowers, however, cannot be distinguished for

the same reason. The applicable state statute

4. Murray v. Branch Motor Express Co., 723

F.2d rat T4th Cir. 1983) cert. denied, 105

S. Ct. 292 (1984); Sine v. Local 992,

International Brotherhood of Teamsters, 730

F.2d 964 (4th Cir. 1984).

of limitations gave the Flowers' plaintiffs

thirty-six months to file their suit, thirty

months more than the six permitted under

DelCostello. Nevertheless, the Court

retroactively applied DelCostello and

dismissed their suit.

However unwise or unfair we may believe

the retroactive application of DelCostello

would be to this case, we cannot refuse to

recognize "the Supreme Court's directive on

this issue." Welyczko v. U.S. Air, Inc., 733

F.2d 239, 241 (2d Cir.), cert. denied, 105

S.Ct. 512 (1984); accord Smith v. General

Motors Corp., 7 F.2d 372, 375 (6th Cir.

1984) (en banc); Campbell v. McLean

>. In Smith, the Sixth Circuit sitting en.

banc reasoned:

If the Supreme Court had not intended for

DelCostello to apply retroactively, the

Court easily could have reserved this

issue or could have applied the statute

of limitations prospectively, as it did

(continued)

Trucking Co., 592 F. Supp. 1560, 1562 (E.D.

N.Y. (1984); see also Goins v. Teamsters

Local 639, 598 F. Supp. 1151, 1154 (D. D.C.

1984) (dictum). Nevertheless, the majority

asserts that "[nJothing the Supreme Court did

in DelCostello forecloses" a Chevron inquiry

into retroactivity here because no “potential

problem with retroactive application" under

Chevron existed in DelCostello and its

companion case. Surely had the Court felt

that in some cases retroactive application of

DelCostello might be inappropriate, it would

in Chevron. By applying the statute of

limitations to extinguish the claim in

the case before the Court, we feel the

Supreme Court demonstrated its intent to

apply DelCostello retroactively.

747 F.2d at 3/5. From this reasoning, the

Sixth Circuit Concluded that the six-month

statute of limitations for § 301/DFR

claims “is applicable to all cases pending at

the time DelCostello was decided." Id.

(emphasis added).

have adopted a case-by-case approach to the

retroactively question by conducting a

Chevron analysis. Yet the Court unmistakably

refused to adopt the case-by-case

retroactivity analysis necessary under

Chevron by directly applying the six-month

limitations period to the cases before it.

Under the majority's position, courts could

completely dispense with a Chevron analysis

when retroactive application of DelCostello

would increase the Limitations period. But

those same courts would have to conduct the

Chevron inquiry where, as here, retroactive

application of DelCostello would decrease the

applicable limitations period. A case-by-case

approach, however, means exactly what it

wii: each case must be examined on the basis

of its own peculiar facts to determine the

appropriate result under the relevant test.

The Supreme Court declined to adopt the

Chevron case-by-case approach and we are

bound to do the same. Consequently, a Chevron

analysis in this case is umnecessary and

DelCostello should be applied retroactively

to bar Zemonick's suit. Welyczko, 733 F.2d at

241; Smith, 747 F.2d at 375; Campbell, 592 F.

Supp. at 1562; see also Goins, 598 F. Supp.

at 1154 (dictum); DelCostello v. Teamsters,

Il.

DelCostello Should Also Be Given

Retroactive Ef£rect Under The Chevron Test

Failing to follow the Supreme Court's

lead, the majority proceeds under Chevron to

find that DelCostelllo should not be applied

retroactively to § 301/DFR claims arising in

West Virginia. DelCostello is, therefore,

applied prospectively to Zemonick's suit by

the majority. Although the Supreme Court has

directed that DelCostello be given

retroactive effect, I feel that the same

result is also mandated under a Chevron

analysis.

Retroactivity Is The General Rule

It is firmly rooted in our judicial

system "that a court is to apply the law in

effect at the time it renders its decision,

unless doing so would result in manifest

injustice." Bradley v. Richmond School Board,

416 U.S. 696, 711 (1974); accord Gulf

Offshore Co. v. Mobil Oil Corp., 453 U.S.

473, 486 n.16 (1981); Thorpe v. Housing

Authority, 393 U.S. 268, 281 (1969); Murray,

723 F.2d at 1147. Consistent with this

principle, it has been repeatedly recognized

"chat the retroactive applicability of

‘udicial decisions of federal courts is the

rule, not the exception." Simpson v.

Director, Office of Workers' Compensation

Programs, 681 F.2d 81, 84 (ist Cir. 1982),

cert. denied, 459 U.S. 1127 (1983). There is,

therefore, a strong presumption in favor of

retroactivity that cannot be easily overcome.

Id.; see also Robinson v. Neal, 409 U.S. 505,

507-08 (1973). Guided by these general

principles, I now turn to the question of

retroactivity in this case under the Chevron

test.

Because of the strong presumption in

favor of retroactivity, all three hurdles of

the Chevron test must be passed before courts

will refuse to give a case retroactive

effect. Rogers v. Lockheed-Georgia Co., 720

F.2d 1247, 1249 (11th Cir. 1983) cert.

denied, 105 S.Ct. (1984); Holzsager v. Valley

Hospital, 646 F.2d 792, 797 (2d Cir. 1981);

Harpp v. General Electric Co., 571 F. Supp.

426, 432 (N.D.N.Y. 1983); accord Kremer v.

Chemical Construction Corp., 623 F.2d 786,

789-90 3% Cir. 1980), aff'd, 456 U.S. 461

6 |

(1982). As a consequence, the party

opposing retroactivity bears the burden of

demonstrating that the decision should be

6. Although not expressly holding that

prospectivity requires that all three Chevron

factors be satisfied, numerous courts have

implicitly indicated that the satisfaction of

each Chevron factor is a prerequisite to

prospective application in any case. See

e.g., Northern Pipeline Co. v. Marathon Pipe

Cine Co., 458 U.S. 50, 88 (1982) (AIL three

Chevron factors "mitigate against the

retroactive application of our holding

today."); United States v. Johnson, 457 U.S.

537, 550 n.12 (1982) (Factors two and three

considered only if the first is satisfied) ;

Jackson v. City of Bloomfield, 731 F.2d 653,

654-55 (10t r. 1984) (first Chevron factor

is threshold test for nonretroactivity) ;

Railroad yardmasters v. Harris, 721 F.2d

T33Z, 1344 n. ~C. Cir. 1983) (all three

Chevron factors supported prospectivity); In

re Locarno 23 Bankr. 622, 632 (Bankr. D. Md.

T9582) (prospective application required

because all three Chevron factors were

satisfied). The requirement that prospective

effect will be given a case only if all three

Chevron factors are satisfied is also

consistent with the strong presumption in

favor of retroactivity.

applied prospectively. Cash v. Califano, 621

F.2d 626, 629 (4th Cir. 1980). Despite

Zemonick's substantial burden, the majority

has concluded that all three Chevron factors

favor giving DelCostello only prospective

effect in this case. I disagree.

Application of the Three Part Chevron Test

To satisfy the first part of the Chevron

test, "a new principle of law [must be

established] either by overruling clear past

precedent... or by deciding an issue of first

impression whose resolution was not clearly

foreshadowed."' Chevron, 404 U.S. at 106. The

majority argues that because of our earlier

decisions in which we expressly held that

7. Kennedy v. Wheeling-Pittsburgh Steel

Corp., 91 L.R.R.M. EL) (4th Cir. 1972);

oward v. Aluminum Workers International

Union, 589 F.2d 771 (4th Cir. 1978).

(1) the same statute of limitations should

apply to § 301 and DFR suits and that (2) the

governing statute of limitations for such

suits should be the state's statute for

actions on oral contracts, DeiCosteilo

overruled clear precedent in this circuit. A

close reading of the opinions filed in United

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

(1981), however, reveals that DelCostello

S&S. There are at least three clear indications

in Mitchell that a change in the applicable

statute of Limitations for sec. 301/DFR suits

was not far away. Graves v. Smith Transfer

Corp., 736 F.2d 819, 821 (Ist Cir. 1984); see

also Local Union 1397 v. United Steelworkers,

748 F.2d 180, 184 (DelCostello neither

established a new principle of law nor

decided an issue which could not have been

foreshadowed); Landahl v. PPG Indus., 746

F.2d at 1312, 1315 (7th Cir. 1984) ("the

result in DelCostello was foreshadowed by

Mitchell"); Lincoln v. District 9, Int'l

Ass'n of Machinists, /23 F.2d 627, 630 (8th

Cir. 1983) ("At the very least, the Mitchell

case should have put [plaintiff] on notice

that a shorter time limitation might be

imposed."); Estades v. Harry M. Stevens

iy 593 F. Supp. 778, (D. PR. 1984)

(continued)

did not erupt "from the Supreme Court

firmament like a bolt out of the blue."

Graves, 736 F.2d at 821.*Mitchell was handed

("Mitchell adumbrated the imposition of a six

months Limitation period in |sec 301/DFR]

suits."). The first indication occurred in

footnote two of the Court's opinion

discussing the amicus argument that the six-

month Limitations period of section 10(b)

should be applied. The Court explained: "Our

grant of certiorari was to consider which

state limitations period should be borrowed,

not whether such borrowing was a

Mitchell, 451 U.S. at 60 n.2 (emphasis in

Original). The second portent of DelCostello

was Justice Blackmun's remark that

"l|ajlthough I find much that is persuasive in

Justice Stewart's analysis, resolution of the

sec. 10(b) question properly should await the

development of a full adversarial record."

Id. at 65 (Blackmun, J., concurring).

Finally, the most obvious foreshadowing of

DelCostello was Justice Stewart's well

reasoned and strongly worded concurring

opinion imploring the Court to adopt the six-

month Limitations period of section 10(b) of

the National Labor Relations Act. Id. at 65-

71 (Stewart, J., concurring). I agree with

the Seventh Circuit that "these three

statements in Mitchell clearly suggest that

the Limitations period of section 10(b) of

the Act would be adopted." Landahl, 746 F.2d

at 1315.

down after our now apparently misguided

decisions in Kennedy and Howard but prior to

the time Zemonick filed his suit. Although

these decisions were controlling in West

Virginia until DelCostello, "a local lawyer

dealing with federal claims cannot simply

ignore the significance of recent

developments in the federal courts that would

clearly warn him not to place undue reliance

on a particular state case" or federal case

applying state law. Landahl, 746 F.2d at

1315. Indeed, "the principle of adopting

federal, rather than state, Limitations

periods in the area of federal labor law has

been openly discussed in the courts, and even

adopted by some courts prior to DelCostello”.

Local Union 1397, 748 F.2d at 184 (citing

Hall v. Printing and Graphic Arts Union, 696

F.2d 494 (7th Cir. 1982); Badon v. General

Motors Corp., 679 F.2d 93 (6th Cir. 1982) )

(emphasis added).

Since Mitchell portended an intended

change in the law, "the first [Chevron]

factor weighs only slightly against

retroactivity," Graves, 736 F.2d at 821.

Clearly, the uncertain wake left behind by

Mitchell reveals that "the six-month statute

of limitations was not an abrupt and

fundamental shift in a doctrine on which the

plaintiff relied because the prior Law was

erratic and inconsistent." Murray, 723 F.2d

at 1148; accord Graves, 736 F.2d at 821;

Lincoln, 723 F.2d at 630 ("DelCostello was

not a clear break from prior law and notice

of a shorter period being applicable was

given in Mitchell."); Perez v. Dana Corp.,

718 F.2d 581, 587 (3d Cir. 1983) (federal

case law was “confused and divided" prior to

DelCostello).

Despite these decisions, the majority

declares that DelCostello “overruled direct

precedent in this court upon which |Zemonick]

-++ justifiably relied." But where the

decision sought to be retroactively applied

decided an issue of first impression, the

inquiry under the first Chevron factor is

only whether the resolution of that issue

“was not clearly foreshadowed." Chevron, 404

U.S. at 106. Here, there can be little

question that DelCostello decided an issue of

first impression that was clearly

foreshadowed by Mitchell. Since the Mitchell

court specifically declined to address

whether section 10(b)'s six-month Limitations

period should be applied to § 301/DFR, 451

U.S. at 60 n.2; id. at 65 (Blackmun, J.,

concurring), when that question was finally

presented in DelCostello -- it represented an

issue of first impression. Additionally, an

examination of Mitchell reveals that the

resolution of the question decided in

DelCostello was clearly foreshadowed. As

noted previously, the Supreme Court gave

three separate indications in Mitchell that

resolution of the section 10(b) question was

just down the road. See supra note 8. No less

telling, the Supreme Court, by overruling

Hoosier Cardinal in Mitchell, revealed that

its view regarding the appropriate statute of

limitations for § 301/DFR suits was in no way

immutable.

If the majority is correct in asserting

that the opinions in Mitchell were not "a

clear foreshadowing of the decision in

DelCostello," I cannot conceive of a case

where a significant and distinct departure

from prior law would ever be considered

"clearly foreshadowed" by prior decisions.

Under the majority's view, a finding that

DelCostello was clearly foreshadowed would

have required an express qualification by the

Supreme Court in its Mitchell decision

informing everyone that it planned to adopt

section 10(b)'s six-month limitations period

for § 301/DFR claims. But by so clearly

revealing its plans for a future decision,

the Supreme Court would be rendering an

advisory opinion which the Constitution

absolutely prohibits. See Muskrat v. United

States, 219 U.S. 346, 361 (1911). Therefore,

I cannot conclude that in this case

satisfaction of the first Chevron factor

required more explicit foreshadowing than

that provided in Mitchell. Although Mitchell

did not hold that § 301/DFR suits would be

governed by section 10(b)'s six month

limitations period, it plainly alerted those

concerned that upon a full adversarial record

the Supreme Court was prepared to address thi

section 10(b) issue and quite possibly adopt

that section's limitations period for

§ 301/DFR suits. In short, "DelCostello

represented a clarification of the law, not .

‘clean break' with past precedent." Landahl,

746 F.2d at 1315.

Given the overriding weight of preceden

holding that DelCostello was not a clear

break from prior law and because Mitchell

5. In Murray, we held that DelCostello was

not a Clear and abrupt change in the

mp gees statute of limitations for sec.

301/DFR claims. Admittedly, the applicable

state statute of limitations in Murray was

Maryland's 30-day statute for actions to

vacate an arbitration award, whereas in this

case the appropriate state statute of

limitations is West Virginia's five-year

statute for actions upon oral contracts.

Under the first Chevron factor, however, we

must look to Supreme Court precedent first

and foremost and not merely at our own to

determine whether (1) DelCostello represents

a clear break from prior Law and whether (2)

the issue decided in DelCostello was one of

“first impression whose resolution was not

(continued)

forewarned plaintiffs that the section 10(b)

issue would be addressed in a later case, I

am persuaded that Zemonick has not satisfied

the first part of the Chevron test.

Under the second Chevron factor the

majority cryptically concludes that "a

finding of nonretroactivity in this case

would not be disruptive of any great design

of the laws of the United States." There is,

however, no support in the case law or in

DelCostello itself for the majority's finding

that giving DelCostello prospective effect

will neither retard its operation nor

jettison the carefully balanced policy behind

it. The federal courts have uniformly

concluded because of nonretroactive

clearly foreshadowed." Chevron, 404 U.S. at

106. Because the Supreme Court precedent did

indeed foreshadow DelCostello, I believe our

holding in Murray regarding the first Chevron

factor should also be applied to this Case.

application of DelCostello is manifestly

inconsistent with the purpose of the six-

month limitations period, the second Chevron

Factor does not favor prospective application

of DelCostello. Local Union 1397, 748 F.2d at

184-85 ("the importance of uniformity in

limitations periods" in Labor law which "was

a major consideration in the DelCostello

opinion itself" favors retroactivity) ;

-Landahl, 746 F.2d at 1315 ("giving

retroactive effect to the DelCostello rule

would further its purpose" even though a

longer state statute of limitations would

otherwise apply); Graves, 736 F.2d at 821-22

("LGjiving retroactive effect to DelCostello

will further the purpose of the rule... Leven

where] a longer state statute of limitations

appliels]."); Murray, 723 F.2d at 1148

("|[TJhe purpose of the DelCostello rule

10/

require[s] retroactive application.™) ;

Lincoln, 723 F.2d at 630 ("retroactive

application of DelCostello would further the

policy of prompt settlement"); Rogers 720

F.2d at 1250 (Prospective application of

DelCostello "would retard rather than further

the federal interests in prompt resolution of

labor disputes, finality, and consistency

embodied in DelCostello."); Edwards v. Sea-

Land Service, Inc., 720 F.2d 857, 862 (5th

Cir. 1983) (second criterion of Chevron

favors application of DelCostello

10. I also believe that we are bound by our

previous holding in Murray that the second

Chevron factor favors retroactivity. This

factor must be analyzed independently from

the first Chevron factor and from the

equities of each case involved under the

third Chevron factor. Furthermore, whether

the first and third Chevron factors favor

retroactive application of DelCostello may

vary from case to case. However, the second

Chevron factor cannot vary -- it either

favors retroactive application of DelCostello

in every case or not at all.

63:

retroactivity); Perez, 718 F.2d at 588

("second Chevron factor counsels in favor of

retroactivity"). Although the Ninth Circuit

is the. lone federal court of appeals to give

DelCostello only prospective effect, even

that court has held that "(t]he second

Chevron Oil factor does favor retroactivity"

because application of a longer state statute

of limitations "detracts from the principle

of finality" which is a substantial purpose

of DelCostello. Barina v. Gulf Trading &

Transportation Co., 726 F.2d 560, 564 (9th

Bk oy

Cir. 1984). Hence, I can find no

11. More recently, the ninth Circuit has

declared that in deciding DelCostello, "the

Supreme Court wished a uniform statute of

Limitations to apply" in order to prevent

"(t]he waste of time and resources" that had

previously occurred when plaintiffs pursued

their § 301/DFR claims "under an almost

infinite variety of local limitations

statutes." Glover v. United Grocers, Inc.,

746 F.2d 1380, 1382 (9th Cir. » petition

(continued)

authority among the federal courts of appeals

supporting the majority's dubious finding

that the second Chevron factor favors

prospective application of DelCostello.

In addition, an independent examination

of DelCostello reveals that a failure to

apply the six-month Limitations period to

this case would be contrary to the federal

interests embodied in DelCostello and would

significantly hinder the operation of the

DelCostello limitations period. The Supreme

Court in DelCostello stressed that "the need

uniformity" was an important reason for

for cert. filed, 53 U.S.L.W. 3600 (U.S. Feb.

5, 1985) (No. 84-1257). Consequently, the

court went on to conclude that "|nJot to

apply DelCostello [retroactively in the case

before it] would be to thwart its clear

purpose in making uniform the statute of

limitations applied to employers and unions

when the claim is at once for breach of duty

of fair representation and for breach of

contract." Id. at 1383.

ending the previous practice of borrowing

diverse state statutes of limitations. 462

U.S. at 171 (quoting Mitchell, 451 U.S. at 70

(Stewart, J., concurring)). Equally

significant, "the Court reaffirmed that

federal labor law favored ‘the relatively

rapid resolution of Labor disputes,' and

rejected the adoption of long limitations

period which would allow grievance and

arbitration decisions to be called into

question long after the fact." Perez, 718

F.2d at 588 (quoting DelCostello, 462 U.S. at

168); accord Edwards, 720 F.2d at 861.

Application of West Virginia's five-year

statute of limitations period would be

clearly contrary to DelCostello's dual

12/

purpose of uniformity and rapid finality.

1Z. Despite the collective wisdom of every

federal circuit court of appeals, the

(continued)

Refusing to overlook these purposes behind

the DelCostello six-month limitations period,

majority concludes that the second Chevron

factor favors prospective application of

DelCostello. They reach this conclusion by

Finding (1) "|tJhe court's specific endeavor

in DelCostello ... was to enlarge the short

period of Limitations authorized by

Mitchell;" (2) that prospective application

in this case "would not... significantly

retard[ |" the policies underlying

DelCostello; and (3) that "[t]here are only a

rew states which have no statutes limiting

commencement of actions to vacate arbitration

awards." These assertions are only partially

true.

First, the Supreme Court in

DelCostello's companion case purposely

shortened the statute of limitations that had

been applied to actions against unions by

observing that

[the] application of a longer malpractice

statute as against unions would preclude

the relatively rapid final resolution of

labor disputes favored by federal law....

In No. 81-2408, for example, the holding

of the Court of Appeals would permit a

suit as long as three years after

termination of the grievance proceeding;

many states provide for periods even

longer.

DelCostello, 462 U.S. at 168 (footnote

omitted). Second, prospective application of

DelCostello here would give plaintiffs in

West Virginia who filed suit before the

(continued)

sie ccciaiaaciaiaeatiaaiaeiiaiaaiiill

I conclude that the second Chevron factor

also favors retroactivity.

Analyzing the equities in this case

decision in DelCostello was handed down a

Limitations period that is ten times longer

than the six-month period now in effect.

Equally noteworthy, the majority's holding

today carves an undesirable exception to the

DelCostello rule for cases in this circuit

arising in West Virginia. These observations

clearly demonstrate that prospective

application of DelCostello is totally

inconsistent with the twin aims of

DelCostello: uniformity and rapid finality i

Tabor dispute resolution. Finally, while onl:

a few states do not have statutes Limiting

the time within which an action to vacate an

arbitration award may be brought, every stat:

has a limitations period for malpractice

actions (that ap lied to suits against union:

before DelCoste le ended the practice of

borrowing the most rig ty es state statute

of limitations for § 301/DFR claims) far

in excess of DelCostello's six-month period.

As the Supreme Court observed in DelCostello

One state's limitations period for Legal

malpractice is 10 years. Other states

allow six years (10 states); five years

(4 states); four years (5 states); three

years (10 states and the District of

Columbia); two years (10 states); and on

year (4 states).

Id. at n.18.

under the third Chevron factor, the majority

asserts that DelCostello should not be

retroactively applied to dismiss this case.

According to the majority, dismissal here for

untimeliness "shouts of inequity" because

Zemonick has "expended considerable time and

effort in the development of |his] case on

the merits."

I am unable to agree with these

assertions by the majority. Retroactive

application of DelCostello may be ungenerous,

but it is not for this reason a result that

we can escape under Chevron. First, Zemonick

delayed filing his suit for thirteen months

after he was discharged and his cause of

action arose. Such a delay is more than twice

the time the Supreme Court established for

filing § 301/DFR claims in DelCostello. Nor

has Zemonick offered any sympathetic or

justifiable reason for his delay. Because

this area of federal law was in considerable

flux at the time his cause of action arose,

caution and diligence demanded that Zemonick

exhibit greater promptness in filing suit

than he did. As a result, I cannot agree that

retroactive application of DelCostello in

this case "shouts of inequity." Second, I

attach Little significance to the majority's

observation that Zemonick "expended

considerable time and money" in preparing his

case prior to its dismissal by the district

court. Except for rare cases in which no

pretrial discovery is conducted, nearly every

plaintiff will have “expended considerable

time and money" during the trial preparation

stage. But were, as here, the plaintiff "has

not been deprived of a judgment obtained

before DelCostello came down," there is

little inequity in applying that decision

retroactively. Graves, 736 F.2d at 822;

accord, Estades, 593 F. Supp. at 782.

Admittedly, the majority correctly notes

that our decisions in Murray and Sine may be

distinguished from this case by considering

the equities involved under the third Chevron

factor. in Murray, the plaintiff had notice

that Maryland's exceedingly short cthirty-day

statute of Limitations for suits to vacate an

13. The Eleventh Circuit has even concluded

that the equities mandate retroactivit

"Prospective — Cation of DelCostello would

cause inequitable results. Numerous state

statutes of limitations would apply to

similar causes of action. Prospective

application would extend the inconsistent

results that De rostelee by to remedy."

Rogers, 720 er the

majority's view, rs plaintiff in Maryland

bringing a sec. 301/DFR claim seven months

after his cause of action arose but before

DelCostello came down would find his claim

time barred. A similarly situated plaintiff

in West Virginia, however, could bring the

same claim up to five years after his cause

of action arose without fear of having his

claim time barred. Such a result is hardly

equitable.

arbitration award applied. 723 F.2d at 1147.

Thus, retroactive application of DelCostello

in Murray extended the time within which the

plaintiff could file even though the delay is

filing of over two years still required

dismissal. Id. at 1148. Similarly, the

retroactive application of DelCostello in

Sine had the effect of reinstating a claim

that would otherwise have been time barred

under a shorter state statute of Limitations.

730 F.2d at 966. Nevertheless, the Supreme

Court and many of our sister circuits have

retroactively imposed DelCostello to time ba:

a claim that would have been timely under the

previously governing state statute of

limitations. DelCostello 462 U.S. at 172

(suit filed ten months after cause arosed

dismissed under DelCostello rule even though

state statute of limitations was three

years); Flores v. Levy Co., 118 L.R.R.M.

3129, 3130-31 (7th Cir. 1985) (DelCostello

applied retroactively to dismiss suit brought

three years after cause of action arose

notwithstanding Illinois' ten year statute of

limitations period for written contracts) ;

Landahl, 746 F.2d at 1316 (7th Cir.)

(DelCostello applied retroactively to dismiss

case filed fifteen months after cause of

action arose despite Wisconsin's applicable

six-year limitations period); Linder v.

Berge, 567 F. Supp. 913, 915-16 (D.R.I.

1983); aff'd, 739 F.2d 686, 690 n.3 (1st Cir.

1984) (DelCostello applied retroactively

despite Rhode Island's previously applicable

three-year and six-year statutes of

limitations for § 301/DFR suits); Graves, 736

F.2d at 820-21 (1st Cir.) (DelCostello

applied retroactively to dismiss case filed

eight months after cause arose

notwithstanding New Hampshire's one-year

limitations period); Rogers, 720 F.2d at 1250

(11th Cir.) (rejecting plaintiff's request

that "state statutes of limitations with

periods much Longer than the six-months

adopted in DelCostello be applied); Edwards,

720 F.2d at 859 (5th Cir.) (DelCostello

applied retroactively to dismiss claims

despite previous applicability of Texas' two

and four-year statutes of Limitations);

Estades, 593 F. Supp. at 782 (suit filed two

years and two months after cause of action

arose dismissed by retroactive application of

DelCostello even though suit would have been

timely under Puerto Rico's applicable

fifteen-year Limitations period). Contra

Barina, 726 F.2d at 562 (9th Cir.)

(DelCostello applied prospectively to save

claim filed less than a year after the cause

arose because it was timely under a four-year

state statute of limitations).

Further, the Sixth, Fifth, and Second

Circuits have held that DelCostello must be

applied retroactively to all cases regardless

of the peculiar equities involved in each.

Smith, 747 F.2d at 375 (6th Cir.); Gray v.

Amalgamated Meat Cutters Local 540, 736 F.2d

1055 (Sth Cir. 1984); Welyczko, 733 F.2d at

241 (2d Cir.). Under the illuminating light

of these decisions, it is clear that there is

no inherent inequity in retroactively

imposing DelCostello's statute of limitations

even where, Like here, it reduces the time

available under the previously governing

period. Fairness does not require that

DelCostello be given only asymmetrical

retroactive effect. With respect to statutes

of limitations, equity has two sides. If it

was fair to the defendant in Murray to

reinstate a claim that was time barred under

the state statute by applying DelCostello

retroactively, it is equally fair to the

plaintiff in this case to dismiss his suit by;

giving DelCostello retroactive effect. Under

the majority's argument, the defendant in

Murray -- at least until DelCostello --

reasonably expected to be sued, if at all,

within thirty-days after a § 301/DFR cause of

action arose against it. Applying DelCostell«

retroactively in this case would, therefore,

be no more unfair to Zemonick than it was to

the defendant in Murray. The third Chevron

factor requires courts to examine what the

equitable consequences of retroactive

application are to both parties to an action.

not just the plaintiff. 404 U.S. at 107.

Consequently, the equities in this case do

not demand disregard of the clear weight of

persuasive precedent holding that the third

Chevron factor counsels in favor of applying

DelCostello retroactively.

From the foregoing, it appears that none

of the Chevron factors are susceptible of a

determination that favors prospectivity in

this case. Chevron plainly commands

14/

retroactive application of DelCostello.

Iil.

The Extraordinary Weight of Authority

Favors Retroactivity

My final reason for arguing that

DelCostello should be applied retroactively

to this case is the tremendous weight of

precedent which I do not believe the

majority's reasoning has overcome. Except for

14. Even if we assume that the third Chevron

factor favors nonretroactivity in this case,

retroactive application of DelCostello would

still be necessary because prospective effect

cannot be given a decision unless all three

Chevron factors are satisfied. See Holzsager,

646 F.2d at 797; Rogers, 720 F.2d at 1249.

the Ninth Circuit, every federal court of

appeals has held that DelCostello should be

13/

applied retroactively. Smith, 747 F.2d at

375 (6th Cir.) (en banc); Barnett v. United

Air Lines, Inc., 738 F.2d 358, 362 (10th

Cir.), cert. denied, 105 S. Ct. 594 (1984);

Graves, 736 F.2d at 822 (1st Cir.); Gray, 736

F.2d at 1055 (5th Cir.); Welyczko, 733 F.2d

15. Nearly all of the reported district court

opinions have also applied DelCostello

retroactively. Mosely v. Southern Pac.

Transp. Co., 59 . supp. 1039, 1050 (E.D.

La. roa} Estades. 593 F. Supp. at 782;

Campbell, 592 F. Supp. at 1562; Fisher v. CP

tact Inc., 591 F. Supp. 228, 231 (W.D. Mo.

1984); Bey v. Williams, 590 F. Supp. 1150,

1153 (W.D. Pa. 1984); Heffner v. General

Comm. of Adjustment, 587 F. Supp. 387, 389

(D. Ind. T38aT: Oliver v. Local No. 1261

United Transp. Union, 5837 F. Supp. 316 n.1

(N.D. Ga. )> Thibault v. Stop & Sho

Companies, 585 F. Supp. 1359, T351=6 ,

Conn. 1984); Vecchiore v. United Tel. Co.,

584 F. Supp. ILTII, [116 (N.D. Ohio 1984);

Johnson v. Joseph Schlitz Brewing Co., 581 F.

Supp. 338, 344 n.1 (M.D.N.C. 1984). Contra

Sole v. Thorofare Markets, Inc., 571 F. Supp.

ta335 be D. W.Va. 1983).

at 241 (2d Cir.); Murray, 723 F.2d at 1148

(4th Cir.); Lincoln, 723 F.2d at 630 (8th

Cir.); Rogers, 720 F.2d at 1250 (11th Cir.);

Perez, /18 F.2d at 588 (3d Cir.); Storck v.

Teamsters, 712 F.2d 1194, 1196 (7th Cir.

1983). Contra Barina, 726 F.2d at 564 (9th

Cir.). Given the sound reasoning in these

decisions, I find no reason, unlike the

majority, to join the lonely position taken

by the Ninth Circuit and thereby depart from

the almost uniform view that DelCostello

should be applied retroactively.

For all these reasons, I cannot lend ny

approbation to the majority's decision which

is -- in my view -- neither sound nor

permitted by the case law. Accordingly, I

dissent from the majority's prospective

application of DelCostello in this case and

would affirm the judgment of the district

court.

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF WEST VIRGINIA

MICHAEL ZEMONICK, et al.,

Plaintiffs,

Ve CIVIL ACTION NO. 81-0036-C

_ CONSOLIDATION COAL CO., et al.,

| Defendants.

MEMORANDUM ORDER

This civil action raises important labor

law question and arises from the discharge of

eleven employees of Consolidation Coal

Company, the discharged employees being

members of a Local of District 31, United

Mine Workers of America. Plaintiff Zemonick

was discharged by Defendant Consolidation on

February 18, 1980, and the other Plaintiffs

were all discharged on or about March 5,

1980. Each Plaintiff grieved his discharge

and each took his discharge to arbitration

and was represented in those proceedings by

the Union. The proceedings all resulted in

arbitration awards denying the grievances and

sustaining the discharges. The awards were

entered on varying dates between February 28,

1980, and May 5, 1980.

Plaintiffs contend that the denial of

their grievance proceedings were underpinned

by two decisions of the Arbitration Review

Board (the appeals tribunal established by

the collective bargaining agreement between

the Union and Consolidated and other entities

in the Bituminous Coal Operators

Association). It is urged that Decision 108

(rendered October 10, 1977) and Decision 78-

15 (rendered September 10, 1979) suffered

several infirmities.

This action was filed in June, 1981, and

seeks reinstatement of Plaintiffs in their

former jobs with backpay and appropriate

seniority, or remand to an arbitrator for

another hearing; injunctive relief; monetary

damages, and costs and attorney's fees. The

complaint is broad and far-reaching. The

grounds for relief include the following:

1. The discharge of Plaintiff Zemonick

violated substantial public policy as

reflected in federal and state statures.

(Complaint, par. 37.)

2. The arbitrators decisions affirming

the discharges are void since they are based

on Arbitration Review Board (ARB) decisions

108 and 78-15; the procedures used were

inadequate and violated due process, and the

Union breached its duty of fair

representation. (Complaint, par. 38.)

3. ARB decisions 108 and 78-15 are

vague, overbroad, and arbitrary; place

unreasonable burdens of proof on discharged

employees, and violate public policy. They

are also in conflict with the express intent

of rank and file in contract ratification

votes and the Union violated a duty of fair

representation by bargaining away rights.

(Complaint, par. 39-41.)

4. The arbitration decision in

Plaintiff Zemonick's case is internally

inconsistent and violates the collective

bargaining agreement. (Complaint, par. 42.)

5. The arbitration decisions in the

other Plaintiffs' cases are void because they

violate the collective bargaining agreement.

(Complaint, par. 43.)

6. The procedures at arbitration in all

the cases violated due process since the

level of representation was grossly

imbalanced and exculpatory evidence was

excluded. (Complaint, par. 44.)

7. The Union violated its duty of fair

representation at arbitration proceedings in

all the cases. (Complaint, par. 45-46.)

8. Consolidated conspired with other

coal mining employers in the region to deny

Pleintiffs employment in the coal mining

industry. (Complaint, par. 47.)

Plaintiffs have moved for a partial

summary judgment vacating Plaintiffs'

arbitration decision; declaring void and in

violation of law and public policy the

standards upon which those decisions rested

(presumably, ARB decisions 108 and 78-15),

and declaring legally inadequate the

procedures by which those decisions were

reached. In response, Consolidation filed a

cross-motion for partial summary judgment as

to all issues in this action relating to

Plaintiffs' terminations. The Union filed a

response indicating it has nothing to offer

in regard to Plaintiffs’ motion, and reserved

the right to present argument at a later

time. Finally, following the decision of the

United States supreme Court in DelCostello v.

Teamsters, _—*U.S. ___,:~-76 L.Ed.2d 476

(1983), Consolidated moved for partial

summary judgment as to all causes asserted by

Plaintiffs alleging Consolidated breached a

provision of the collective bargaining

agreement and alleging that the Union had

breached its duty of fair representation.

Consolidated urges that these claims are

barred by the applicable statute of

limitations. All three motions before the

Court have been fully briefed by the

Plaintiffs and Defendant Consolidated.

DelCostello appears to have particular

application to the instant civil action. One

of the two cases before the court in

DelCostello, like the one at bar, concerned

an employee discharge, grievance and

arbitration, and a resulting court action

charging the employer terminated the employee

in violation of the collective bargaining

agreement and the union failed to adequately

represent the employee at arbitration. The

suit against the employer rests on 29 U.S.C.

§ 185, since the employee alleges a breach of

the bargaining agreement, and the suit

against the union is implied under the

National Labor Relations Act. DelCostello,

U.S. __, 76 L.Ed.2d at 489. See Vaca v.

Sipes, 386 U.S. 171 (1967).

The extensive and excellent briefing by

the parties on whether DelCostello should be

applied retroactively to the instant case has

been mooted by the recent decision of the

Circuit Court of Appeals in Murray v. Branch

Motor Express, F.2d » No. 82-1202 (4th

Cir. December 20, 1983). Murray announces

that the Fourth Circuit joins several other

circuit courts in applying DelCostello

retroactively.

It seems abundantly clear that

Defendants should be granted some relief on

their motion for partial summary judgment

based on a statute of Limitations.

DelCostello directs that § 301 (29 U.S.C. §

185) fair representation cases are subject to

the six-month statute of Limitations

contained in 29 U.S.C. § 160. This action was

filed over a year after all of the

arbitration decisions affirming the

dismissals of these Plaintiffs were entered.

Plaintiffs have not alleged that the statute

of limitations was tolled in any fashion.

In its motion raising the statute of

limitations defense, Consolidated appears to

limit the relief requested to issues

surrounding the arbitration proceedings

involving these eleven plaintiffs.

(Consolidated sought relief as to par. 38D,

42-46 of the Complaint. The hybrid type

lawsuit described by DelCostello would

probably also include at a minimum par. 38B. )

As the Court views the complaint, this would

leave issues involving the underlying

decisions of the ARB, the public policy-based

issue on the retaliatory nature of Plaintiff

Zemonick's discharge, and the claim of

conspiracy to deny Plaintiff's employment.

The Court has no problem with viewing

the conspiracy allegations as beyond the

scope of the statute of limitations motion.

Neither is this issue included in the cross-

motions for summary judgment. By virtue of

the cross-motions for summary judgment ,

however, the Court feels comfortable with

addressing whether the remaining issues

involving the Plaintiff's discharges fall

within the purview of the statute of

limitations.

All lawsuits challenging discharges or

arbitration proceedings are not subject to

the statute of Limitations announced by

DelCostello. United Parcel Service Ve

Mitchell, 451 U.S. 56 (1981). International

Union v. Ingram Mfg., 715 F.2d 886 (5th Cir.

1983). A fair reading of the complaint before

the Court, however, reveals (1) a common

theme of employer breach of the collective

bargaining agreement and (2) Union breach of

the duty of fair representation. Even those

parts of the complaint challenging ARB

decisions 108 and 78-15 separate and apart

from their role in arbitration directly

affecting these Plaintiffs contain the

elements of a DelCostello 29 U.S.C. § 185

fair representation hybrid. See Complaint,

par. 40, 41.

The Court recognizes the main relief

sought is reinstatement with back pay and

seniority. This cannot be achieved where the

proceedings, concerning -Plaintiffs'

discharges, are beyond the jurisdiction of

the Court because of the applicable statute

of limitations.

It is the opinion of the Court that this

civil action (with the exception of the

conspiracy issue) must be viewed as a

DelCostello hybrid. Certainly there are some

"accessory" claims which eer illusions of

other species of litigation. The common

1. "Accessory" claims appear to be common to

the DelCostello hybrid. Indeed, in his

(continued)

thread throughout the complaint, however, is

(1) breach of the contract by Consolidated

and (2) breach of the fair representation

duty by the Union. In light of the relief

requested, excision of the "accessory"

allegations would leave Plaintiffs without a

coherent cause of action. Accordingly, all of

Plaintiffs' grounds for relief, save those

raised in par. 47 of the complaint (the

conspiracy issue) will be dismissed on the

basis of the applicable statute of

Limitations.

These defense motions have been

prosecuted by Consolidated. The Union has not

complaint before the District Court, Phillip

DelCostello charged a conspiracy between his

employer and the union to remove him from his

Me i DelCostello v. Teamsters, 510 F. Supp.

16, 720 (D. Md. I981I). An age discrimination

claim was injected by TPR St in Edwards

v. Sea-Land Service, 6/8 F.2d 1276 (5th Cir.

T5982), vacated (on the basis of DelCostello),

__ -U.S. __, 77 L.Ed.2d 1360 (1983).

joined them or filed separate motions.

Because of the nature of the DelCostello

hybrid, however, the cause against the Union

also must be dismissed.

It is the opinion of the Court that the

remaining claim--an allegation that

Consolidated conspired with other coal

producing firms to deny Plaintiffs employment

in the coal mining industry--is a State

common law issue. [t must be viewed as a

pendent claim, and the Court believes it must

be reviewed at this time since the federal

claims to which it is tied are being

dismissed prior to trial.

"It has consistently been recugnized

that pendent jurisdiction is a doctrine of

discretion, not of plaintiff's right." U.M.W.

of A. v. Gibbs, 383 U.S. 715, 726 (1966). The

Gibbs decision strongly suggests pendent

state claims should be dismissed if the

federal claims are dismissed before trial, or

if state issues predominate. Both these

factors are present in the current posture of

the instant case. The Court recognizes the

potential for issues based in federal law

arising in the development and trial of the

conspiracy claim as drawn in the complaint.

Nonetheless, it is believed State issues

predominate.

Since the federal claims are being

dismissed on the basis of the applicable

2. The state claim in Gibbs, like that in the

instant case, charged a conspiracy to deny

employment and freedom to contract.

3. Plaintiffs' claim that the conspiracy

violated rights under 42 U.S.C. sec. 1985(3)

may have been affected by the decision in

United Brotherhood of Carpenters v. Scott,

aa ae Bs gs L.Ed. 2d 1049 (1983) ~

statute of limitations, the Court is

convinced that the State conspiracy claim

should be dismissed without prejudice. Cf.

Metz v. Tootsie Roll Industries, 715 F.2d

299, 307 (7th Cir. 1983) (appeal pending).

The foregoing constitutes the Court's

findings of fact and conclusions of law

pursuant to Rule 52(a), Federal Rules of

Civil Procedure. Upon the reasoning the

conclusions herein, it is

ORDERED that Defendant Consolidated's

motions for partial summary judgment with

regard to all issues relating to Plaintiffs'

discharges are GRANTED, and that Plaintiffs'

motion for partial summary judgment is

DENIED. It is further

ORDERED that the Court declines to

exercise pendent jurisdiction over the

remaining conspiracy claim, and the same is

DISMISSED without prejudice. It is further

ORDERED that this civil action be, and

the same is hereby, DISMISSED and retired

from the docket of the Court.

DATED: February 29th, 1984.

UNITED STATES DISTRICT JUDGE

APPENDIX D

IN THE UNITED STATES DISTRICT COUR.

FOR THE

NORTHERN DISTRICT OF WEST VIRGINIA

MICHAEL ZEMONICK, et al.,

Plaintiffs,

Vv. CIVIL ACTION NO. 81-0036-C

CONSOLIDATION COAL CO., et al.,

Defendants.

JUDGMENT ORDER

For the reasons stated in the Court's

Memorandum Order Dated February 29, 1984, it

is ADJUDGED and ORDERED that:

1. Defendant Consolidated's motions for

partial summary judgment with regard to all

issues relating to Plaintiffs' discharges are

GRANTED, and that Plaintiffs' motion for

partial summary judgment is DENIED.

2. The Court declines to exercise

pendent jurisdiction over the remaining

conspiracy claim, and the same is DISMISSED

without prejudice.

3. This civil action is DISMISSED and

retired from the docket.

APPROVED: February 29, 1984

UNITED STATES DISTRICT JUDCE

Dated at Elkins, West Virginia, this

2nd day of March, 1984.

Clerk of Court

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.