Amicus Curiae Brief — Reed v. Transportation Union

e Supreme Court, U.S.

EILED

No. 87-1031 MAY 11 196

JOSEPiTF S PANIOL, JR.

In the ne

Supreme Court of the United States

October Term, 1987

G. P. REED,

Petitioner,

UNITED TRANSPORTATION UNION, ef al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE ASSOCIATION FOR

UNION DEMOCRACY AND PUBLIC CITIZEN AS

AMICI CURIAE IN SUPPORT OF PETITIONER

Paul Alan Levy

(Counsel of Record)

Arthur L. Fox Il

Alan B. Morrison

Public Citizen Litigation Group

Suite 700

2000 P Street, N.W.

Washington, D.C. 20036

(202) 785-3704

Attorneys for Amici Cunae

May 6, 1988

.

CASILLAS PRESS IN IT17 KOSTREET NW WASHINGTON DC 200006 228-1220

(i)

QUESTION PRESENTED

In a suit by a union member solely against his union to en-

force his right of free speech, should the Court deviate from

the normal federal rule, which requires it to borrow the most

analogous state statute of limitations, and instead rely on the

six-month period for filing charges under the National Labor

Relations Act, which is borrowed for ‘‘hybrid’’ duty of fair

representation actions by an ane against both his

employer and his union?

(iii)

TABLE OF CONTENTS

Page

Tee eee cocuvncecceee. iv

cs cc ccc cc cccccccccccceeee, 1

cc w cc ccncccooceee, ;

Ee 4

ARGUMENT

THE COURT BELOW ERRED BY APPLYING A SIX-MONTH

STATUTE OF LIMITATIONS TO FREE SPEECH CASES

soaks cc deecescccccccccccccsce 5

A. DelCostello: Its History, Its Rationale, and Its

ooo occ cs ccsndencccdscncccccccccccee.$

B. The DelCostello Rationale for Borrowing a Six-Month

Period for Hybrid DFR Suits Does Not Apply to LMRDA

ccc cccuccccecccccccey 12

1. LMRDA Claims Do Not Pose An Immediate or Direct

Threat to Labor Peace or to Labor-Management

Tee ns cccaucccee 13

2. A Six-Month Limitations Period Threatens the

Enforcement of the Union Democracy Provisions

EE ES ee 21

C. The Proper State Limitations Period...................... 23

Neen eT TT ovnce cence nccenne 26

cecilia tia i

(iV)

TABLE OF AUTHORITIES

CASES: Page

Acn v. Machinists,

78 B.O8 1908 Cth Cie. 1006)... oc cc cece cc ecccenccesensss 19

Adams v. Gould,

+ Pe. f: To af | | neers cr 11

Adkins v. Electrical Workers,

769 F.2d 330 (6th Cir. 1985)... .. 2... cc cece cece eee eee e nee 19

Agency Holding Corp. v. Malley-Duff & Assoc.,

ee ee i ccccecdsacstvedscticeseessen 6, 24

Agola v. Hagner,

) Be. By, FF; @)8 a rere ee 13

Alexander v. Gardner-Denver Co.,

ewe neebeseees wheaden seme 10

Alexander v. Operating Engineers,

"ERS: 2 fo RS . SeePerrrerrrrrrrsrrr ieee 17, 18

Bauman v. Presser,

117 LRRM 2903 (D.D.C 1984)... 0... ccc cece ec ee eer ecees 19

Bernard v. Teamsters Local 435,

587 F. Supp. 524 (D. Colo. 1984).......... 0. eee e cere eens 13

Boilermakers v. Hardeman,

ole S| eaeerrrerrrcrrrrecerr Tere er 14

Bowen v. Postal Service,

“") 2 £ Saererererrerrr rrr ers, ty. 14

Burnett v. Grattan,

Ste F eeerewrrerrrrrrrreercrry rrr er. 21

Carpenters Local 22,

oD ) fe errrerrer rr rrr rye rt 20

(v)

Page

Carruthers Ready-Mix v. Cement Masons Local 520,

FOU Wa MP I, IDs ov occ scccccceccconcnceccecneni 10

DelCostello v. Teamsters,

I fn SS ae as 2 ee passim

Doty v. Sewall,

ee ee ee 3, 3.

Dozer v. TWA,

Oe te Oe Pe Ge TI kin nnn vce one ae kilo cc cekenn. 10

Duncan v. Peninsula Shipbuilders Ass'n,

ee ee 15

East Texas Motor Freight,

I see ok A he en ee 20

1820 Central Park Avenue Restaurant Corp.,

ee Sy er Dn, enh Le 18

Elevator Constructors v. Home Elevator Co..,

Fe ee Oe Oe Oe Poa oc chew oss Gen vednnccligee 11

Emporium Capwell Co. v. Western Add'n Cmnty. Org.,

ke ef Rr A Rae en Ea Meta hl te ERR 13

Erkins v. Bryan,

oe fF Le ne re NR une nk OF, 24

Federation of Westinghouse Unions v. Westinghouse Elec. Corp.,

Cee BIDS 6.6 noc oc Senco o ooodc cc ckeocs 1]

Goodman v. Lukens Steel Co,

ee a ns Jo. i ee ee ear 11, 25

Hall v. Cole,

ee IS So te wan babes SON oc hiiee ert 12, 22

Hines ». ‘..chor Motor Freight,

424 U.S. 554 (1974) 7

(vi)

Page

Howard v. Roadway Express,

726 F.2d 1529 (11th Cir. 1984).........--- 2 eee ee eee teens 11

Humphrey v. Moore,

See Fl errr rr errrerrr rrr oc 13

Johnson v. Railway Express Agency,

ee reer reer rrr rer rir. of

Linder v. Berge,

739 F.2d 686 (1st Cir. 1984).......... 0. cece eee eee teens 19

Maguire v. McQueen,

122 LRRM 2449 (S.D.N.Y. 1986).........- 06-0 e sree recess 13

Monarch Long Beach Corp. v. Teamsters Local 812,

762 F.2d 228 (2d Cir. 1985)........---- cee eee eee renee 10, 11

Moody v. Longshoremen,

112 LRRM 2340 (N.D. Ohio 1982)...........---5+55- eee

Murphy v. Operating Engineers Local 18,

774 F.2d 114 (6th Cir. 1985)..........- ee eee ee ee eee eens 20

Musicians v. Wittstein,

- Sit 2) | en eee oo 12

Navarro v. Gannon,

385 F.2d 512 (2d Cir. 1967).......-..--- eee e ee eee neers 12, 16

NLRB v. Allis-Chalmers Mfg. Co..

|. & Serr Serr rr eee 14

Occidental Life Ins. Co. v. EEOC,

Se fF . ee rrr ee ee 6

Plumbers Local 334 v. Plumbers,

ON ing cc ccc sce csinvcnveccesennsencesss 18

Prater v. UMW,

793 F.2d 1201 (llth Cir. 1986). ............ 0. eee eee eens 10

(vil)

Page

Rector v. Elevator Constructors,

625 F. Supp. 174 (D. Md. 1985).........................5. 13

Reed v. UTU,

LS 16, 19

Republic Steel v. Maddox,

Se I cs kc cccenkwnencdentece 6

Rodonich v. Laborers Local 95,

817 F.2d 967 (2d Cir. 1987)........................... 13

Roland v. Airline Employees,

733 F.2d 1385 (7th Cir. 1985)....................00065, 18

Runyon v. McCran,

Sr NE OM 5 so nn pond awalnvenscdncecnes 5

Shimman v. Frank,

Geo ©.208 OD th Cir. 1900)...................... ee. 20

Smith v. Evening News Ass n,

ee I IS ow 6 ov sees dswccdaccecneca. 6

Steelworkers Local 1397,

240 NLRB 848 (1979).................

Steelworkers Local 1397 v. Steelworkers.

oe | 15, 19

Steelworkers v. Enterpnse Wheel & Car Corp.,

363 U.S. 593 (1960).......... 7

Teamsters Local 745,

240 NLRB 537 (1979)... .

See wa ed cr

Testa v. Gallagher,

621 F. Supp. 476 (S.D.N.Y. 1985).................. 13

UPS v. Mitchell,

451 U.S. 56 (iy8l)......... 7

a

(vill)

Page

Vaca v. Stpes,

en OE Lae OSs Le aaa eee wee ae eee 7, 14

Vallone v. Teamsters Local 705,

eG I, OD, goo voccuseccseeveecctececduves 19

West v. Conrail,

Sn cielSe eee weee eel euupee wees 9, 10

Wilson v. Garcia,

I re eet kok a ol od J ieee 6, 21, 24, 25

LEGISLATIVE MATERIALS:

Statutes:

Civil Rights Acts

ic vc6n 6.066id ace hens che seen seen 10, 17, 22, 25

ee ele ES bas 66g ph Rk ae ee eS 14, 24, 25

Oe. le epee aceenaneweena 10

Labor Management Relations Act,

29 U.S.C. §§ 151 et seq.

er eh, iis swe cetuebuebesnwees passim

Te WEA, I 6 cc cc ecsccewaseuees baleenaiaan 10

Labor-Management Reporting and Disclosure Act of 1959.

ee SE es oe sexist hegsedebeerseien ud passim

— fe fF eee OP eer rrr passim

Section BORG). 29 U.S.C. § SLIM)... ccc ccc cccess 15

Section 101(a)(2), 29 U.S.C. § 411(a)(2).................. 14, 20

Section 101(a)(3), 29 U.S.C. § 411(a)(3).................. 15, 16

Section 101(a)(5), 29 U.S.C. § 411(a)(5).................. 14, 15

ees BORGES, BP UDA. 9 GIG). 0 oon cecccescccvccves 15, 24

cf Le FF FF rere rr rere rr ee 18

SE iy We Ws AER w ccc scccesceseesneceenctes 16, 18

mace Dome, BP UB. 9 GBC)... 2. ee cccenccesscccsess 18

(1X)

an

Title IV, 29 U.S.C. §§ 481 et seg.

Section 401(b), 29 U.S.C. § 481(b).....................00--. 15

a 16, 23

a 15, 16, 24

National Labor Relations Act,

Be I EO ns acc vcncnccccccebeeecccawes passim

Le | SS ae 19

Section 8(b)(1)(A), 29 U.S.C. § 158(b)(1)(A)........... 20

Section 10(b), 29 U.S.C. § 160(b)....................... passim

Racketeer Influenced and Corrupt Organizations Act,

18 U.S.C. $5 106) of ang... 2... cece ccees idteabeenect 6, 24

Railway Labor Act,

RT cS. rol eb wwees coekeeened 9, 10

Section 3, First (r), 45 U.S.C. § 153......................055 y

eties We MI WII sg Gos'v v0.65 casncecvcceceedecduieene 26

Gee Ue WI i os vc cvs cSecuuc bucducecncceewaeni 25

ee

Legislative History:

2 NLRB, Legislative History of the LMRDA (1959)............... 12

S. Rep. No. 187, 85th Cong., Ist Sess. 2 (1959)............... 12

OTHER AUTHORITIES:

Bartosic, Union Fiduciaries, Attorneys, and Conflicts of

Interest, 15 U.C. Davis. L. Rev. 227 (1982).................. 23

Cox, Internal Affairs of Labor Unions Under the Labor Reform

Act of 1959, 58 Mich. L. Rev. 819 (1960)................ oon

(x)

Levy, Membership Rights in Union Referenda to Ratify Collective

Bargaining Agreements, 4 Hofstra Lab. L.J. 225 (1987).

McAdams, Power and Politics in Labor Legislation (1964)

“tC uewreke sy

“eeeenvneve

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-1031

G. P. REED,

Petitioner,

V.

UNITED TRANSPORTATION UNION, et ai.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF FOR THE ASSOCIATION FOR UNION

DEMOCRACY AND PUBLIC CITIZEN AS AMICI

CURIAE IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE

Amact file this brief because, although they agree with peti-

tioner that the Court should not borrow a six-month statute

of limitations, which has previously been borrowed for ‘‘hybrid

actions’’ to enforce the duty of fair representation and collec-

tive bargaining agreements, to govern actions under the Labor-

‘lanagement Reporting and Disclosure Act of 1959

(‘“‘LMRDA’’), they differ with petitioner about the legal

analysis required to reach that result. Most important, amici

believe that the inappropniateness of borrowing the six-month

limitations period becomes most obvious only following a

careful analysis of the historical origins, purposes, and litiga-

tion practicalities of the hybrid action on the one hand, and

of LMRDA actions on the other. Both amici are well situated

to advise the Court in that regard.

The Association for Union Democracy is a non-profit

corporation founded in 1969 which seeks to further democratic

principles and practices in American labor organizations, both

by encouraging union members to participate actively in the

internal life of their unions, and by protecting the exercise of

their democratic rights within their unions. No other organiza-

tion devotes itself primarily to this objective.

The sponsors of the Association include former leaders of

major unions, religious leaders, members of union public

review boards, lawyers, prominent educators in labor studies

and labor law, and, of course, numerous union members.

Despite divergent backgrounds, all share the view that the

labor movement is one of the great forces which help sustain

democracy in our national life and that, if it is to serve this

purpose, union leaders must be responsive to their members,

and unions must be democratic and just in their internal

operations.

In the past, the Association has provided legal and other

support in numerous controversies involving unions. Its exper-

ence leads it to conclude that a six-month statute of limita-

tions is much too short to permit many rank-and-file union

members to obtain needed judicial assistance when their

leaders infringe their democratic nghts.

Public Citizen is a public interest organization which was

founded in 1971 by Ralph Nader. Attorneys for Public Citizen

frequently represent union members who have been unable

to protect themselves from undemocratic practices without

invoking judicial authority. Public Citizen has found that, all

too frequently, union members do not come to the realization

that they have legal rights that can be enforced in the courts,

and do not find legal representation, until well after six months

have passed since their rights were violated.

STATEMENT

This is a free speech case in which petitioner, an elected

officer of Local 1715 of respondent United Transportation

Union (‘‘UTU’’), contends that respondents deprived him of

compensation for ‘‘lost time,’’ the leave without pay that he

was required to take from his employment in order to per-

form his union duties, because he was a ‘‘company man’’ who

was too accommodating to the company. Jt. App. 28, ¢ 3(b).

Petitioner alleges that other officers who were allied with the

union leadership were allowed compensation in the same cir-

cumstances in which such compensation was denied to him.

However, he did not bring his suit until more than two years

had passed following the denial of his intra-union appeal.

The district court held that, notwithstanding this Court's

decision in DelCostello v. Teamsters, 462 U.S. 151 (1983),

which borrowed the six-month limitations period for hybrid

actions, the LMRDA is fundamentally different from hybrid

actions, both in terms of the rights provided, the practicalities

of litigation, and the threat to the stability of iabor-management

dispute resolutions that concerned the Court in DelCostello.

However, on interlocutory appeal, the court below refused

to follow the general rule requiring that statutes of limitations

be borrowed from state law, and therefore reversed. The court

of appeals rejected the analysis in Doty v. Sewell, 784 F.2d

1 (1st Cir. 1986), the only appellate decision whicn -arefully

analyzes both the hybrid action and the LMRDA, and which

concludes that the reasons that supported borrowing the six-

month statute for the former do not warrant such borrowing

for the latter.

SUMMARY OF ARGUMENT

As a general rule, the limitations period for a federal cause

of action is to be borrowed from the most closely analogous

state statute. This Court carved out what it characterized as

a narrow exception to this general rule for the federal cause

of action to enforce rights under collective bargaining

agreements when a union has breached its duty of fair

representation (‘‘DFR’’), which is implied by the National

Labor Relations Act (‘‘NLRA’’). In DelCostello v. Teamsters,

462 U.S. 151 (1983), the Court decided that, because of the

need to resolve disputes involving collective bargaining

agreements in order to maintain labor peace, a short limita-

tions period was required to allow the bargaining parties to

be certain that their resolutions of such disputes were in fact

final. Accordingly, it ruled that the time allowed for filing un-

fair labor practice charges under the NLRA — the six-month

period of section 10(b) of the NLRA — would be borrowed

for DFR suits. The Court emphasized, however, that the bor-

rowing of state limitations period was to remain the norm, for

labor as well as other federal claims.

This general rule, and not the narrow exception, applies to

LMRDA claims. To be sure, any labor law claim could be said

to have some connection to bargaining disputes. But if the

result in DelCostello is to remain an exception rather than

become the rule, the application of section 10(b) must be con-

fined to claims which carry the same direct and immediate

threat to the finality of bargaining compromises that DFR

claims do. With very few exceptions, however, LMRDA claims

do not threaten that finality. Indeed, they are fundamentally

unlike DFR claims, which are based on workers’ economic

rights as employees and as members of a bargaining unit

represented by a union, whereas LMRDA claims are found-

ed on members’ civil rights and political liberties as members

of the union. Moreover, the adoption of a short statute of

limitations threatens the remedial objectives of the LMRDA,

which depend entirely on the initiative of individual union

members to find counsel and file suit to enforce the statute.

Finally, given the tenuous connection between LMRDA claims

and bargaining compromises, there is no countervailing

justification for endangering the ability of union members to

protect their rights, comparable to the need for finality in DFR

actions.

Amici do not have strong views on which state limitations

period should be selected, because all of the reasonable alter-

natives adequately permit the enforcement of the LMRDA.

However, amici discuss the choices that might be made and

suggest that a three year statute be borrowed from the North

Carolina code.

ARGUMENT

THE COURT BELOW ERRED BY APPLYING A

SIX-MONTH STATUTE OF LIMITATIONS TO FREE

SPEECH CASES UNDER THE LMRDA.

A. DelCostello: Its History, Its Rationale, and Its

Progeny.

With some exceptions, federal statutes do not contain their

own statutes of limitations; rather, they must be borrowed

from other sources. This Court has repeatedly declared that,

as a general rule, courts should apply the most closely

analogous state statute of limitations. Johnson v. Railway Ex-

press Agency, 421 U.S. 454, 462 (1975); Runyon v. McCrary,

427 U.S. 160, 180 (1976). The determination of which state

statute of limitations is to be borrowed frequently presents

a difficult issue of characterization, because federal statutes

6

often create rights for which there is no exact state parallel.

See Section C, infra. This Court has made clear, however,

that mere difficulty of characterization is not a sufficient reason

to abandon the effort. DelCostello v. Teamsters, 462 U.S. 151,

171 (1983); Wilson v. Garcia, 471 U.S. 261 (1985).

There is a narrow exception to the general rule, however,

for cases in which the use of analogous state statutes would

frustrate the implementation of national policies. Occidental

Life Ins. Co. v. EEOC, 432 U.S. 355, 367 (1977). As the

Court held in DelCostello, the ‘‘hybrid’’ action against a union

and an employer is one example. In order to place in context

the reasons why this Court found it necessary to make an ex-

ception in that type of case, it is important to explain the

precise role which ‘‘hybrid’’ actions play in federal labor law,

and then to examine how they differ from LMRDA free speech

cases such as this.!

Individual employees, as well as their unions, may sue under

section 301 of the Labor-Management Relations Act

(‘‘LMRA’’), 29 U.S.C. § 185, to enforce rights conferred

on them by collective bargaining agreements between their

employers and their unions. Smith v. Evening News Ass‘n,

371 U.S. 195, 200 (1962). But the Court has erected a signifi-

cant procedural barrier to prevent the courts from being in-

undated with suits to enforce collective bargaining agreements

— the plaintiff must exhaust contractual grievance procedures,

!Another exception is a civil action for violations of the RICO statute.

Agency Holding Corp. v. Malley-Duff & Assoc., 107 S. Ct. 2759 (1987).

In Malley-Duff, the Court decided that, given the extraordinary variety)

of types of RICO claims, and the amount of time expended on litigation

of the proper limitations period for each, it was necessary to establish a

single period to govern all RICO claims, id. at 2763-2764. The Court decid-

ed that the four-year limitations period for antitrust claims not only pro-

vided a uniform rule, but provided a close analogy with RICO claims. /d.

at 2764-2765.

including arbitration, before suit is filed. Republic Steel v. Mad-

dox, 379 U.S. 650 (1965). It has also erected a major substan-

tive barrier to such suits — the courts will not overturn ar-

bitral awards unless the award cannot possibly be justified as

having drawn its essence from the collective bargaining agree-

ment. Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S.

593 (1960).

But the Court has recognized that employees may be

prevented from exhausting the contractual procedures, or may

be unable to obtain a fair hearing in arbitration, if the union

breaches its DFR either in deciding not to complete the con-

tractual procedures or in the manner of conducting them. Ac-

cordingly, the Court has ruled that individual employees seek-

ing to enforce their rights under a collective bargaining agree-

ment will be excused from the exhaustion requirement, and

from the highly deferential standard of review under Enter-

prise Wheel, if, but only if, they can show that the union breach-

ed its DFR in handling the grievance. Vaca v. Sipes, 386 U.S.

171 (1967); Hines v. Anchor Motor Freight, 424 U.S. 554

(1976). A lawsuit in which employees seek to enforce both

the collective bargaining agreement against the employer, and

the DFR against the union, is known as a ‘“‘hybrid’’ action.

The issue of the proper limitation period for hybrid actions

first reached the Court in UPS v. Mitchell, 451 U.S. 56 (1981).

In Mitchell, the narrow question on which certiorari had been

granted was which state statute was the most analogous for

post-arbitration hybrid suits against employers alone, and the

Court decided that the most analogous statute was that for

Suits to vacate arbitration awards. Jd. at 61-62. Moreover,

the Court expressed concern that, absent a fairly short limita-

tions period, the parties to the collective bargaining agree-

ment could not be sure that an arbitrator’s resolution of a

dispute under the agreement was in fact final. Thus, although

state limitations periods for enforcing contractual rights pro-

vided another analogous alternative, those statutes allowed

too long a penod in which the arbitrator’s disposition of a griev-

ance was in question, and their use would frustrate federal

policy favoring prompt resolution of labor-management

disputes. Jd. at 63-64.

Two years later, in DelCostello, the question presented was

whether to apply a federal limitations period instead of any

of the state alternatives in hybrid suits against both an

employer and a union. The Court reiterated its concern that

several of the analogous state limitations periods, such as ac-

tions for tortious injury or for professional malpractice, were

so lengthy that employer-union disputes, and the compromises

by which they were resolved (including negotiated terms, settl-

ed grievances, or even arbitral adjudications), could remain

in limbo for years, and thus could endanger stability in labor

relations and, in the long run, labor peace. 462 U.S. at 168-169.

The other most analogous state statutes, such as those ap-

plied to actions to vacate arbitration awards, were so short

— generally three months — that they did not give enough

time for aggrieved employees to initiate suit. Jd. at 165-168.

Moreover, the Court recognized that the most analogous state

statutes were different for the employer and for the union,

and if each were applied to their respective defendant, the

result would be the application of different limitations periods

to two parts of the same suit, which would clearly have been

undesirable. /d. at 169 n.19.

Still, the Court said, ‘‘these objections to the resort to state

law might have to be tolerated if state law were the only source

reasonably available for borrowing, as it often is.’’ Jd. at 169.

However, it found that section 10(b) of the NLRA, 29 U.S.C.

\ 160(b), was more appropnate than any of the state analogies,

both because it had been designed by Congress to accom-

modate a ‘‘very similar balance of interests,’’ t.e., employee

rights versus the stability of private adjustment of labor

disputes, and because the DFR was itself a cause of action

implied from the NLRA. Jd. at 169-171.

The Court was careful, however, to emphasize that the

courts should not too readily decline to adopt state limitation

periods simply because state law fails to provide a perfect

analogy: ‘‘We stress that our holding today should not be taken

as a departure from prior practice in borrowing limitations

periods for federal causes of action, in labor law or elsewhere.

. . . [R]esort to state law remains the norm for borrowing

of limitations periods [unless] a rule from elsewhere in federal

law clearly provides a closer analogy than available state

statutes, and. . . the federal policies at stake and the prac-

ticalities of litigation make the rule a significantly more ap-

propriate vehicle.’’ Id. at 171-172 (emphasis added).?

Amici recognize that there are other labor law suits which,

although not addressed by the Court in DelCostello, present

such closely analogous situations that it may be appropriate

to borrow the six-month period of section 10(b) instead of an

analogous period from state law. Thus, for example, although

DelCostello involved hybrid actions against unions and

employers covered by the NLRA and LMRA, hybrid actions

against unions and employers covered by the Railway Labor

Act (‘‘RLA’’) are so similar that the DelCostello reasoning

would presumably apply to require the borrowing of a federal

limitations period in such cases as well.*

Last Term, in West v. Conrail, 107 S. Ct. 1538 (1987), the Court cau-

tioned against an overly mechanical reading of DelCostello to cut back as

far as possible the time for initiating lawsuits, even for hybrid claims.

‘We note that the Railway Labor Act contains an express two-year

statute of limitations for suits to vacate arbitration decisions, 45 U.S.C.

153. First (rn), not a six-month period as in section 10(b) of the NLRA.

(footnote continued)

10

On the other hand, the courts of appeals that have consid-

ered the proper limitations period under section 303 of the

LMRA, 29 U.S.C. § 187, in actions to enforce the secon-

dary boycott provisions of the NLRA have opted not to apply

the six-month period of section 10(b). Monarch Long Beach

Corp. v. Teamsters Local 812, 762 F.2d 228, 231 (2d Cir.

1985); Carruthers Ready-Mix v. Cement Masons Local 520,

779 F.2d 320 (6th Cir. 1985); Prater v. UMW, 793 F.2d 1201,

1209-1210 (11th Cir. 1986). These courts applied longer limita-

tions periods even though labor-management relations are

directly affected by such suits and even though a secondary

boycott, like a breach of the DFR, is an unfair labor practice

for which Congress expressly prescribed a six-month limita-

tions period for filing charges with the NLRB. Nevertheless,

although the case for borrowing section 10(b) is far more com-

pelling for cases under section 303, these courts concluded

that the effect of such litigation on stable labor-management

relations, and consequently on labor peace, is insufficient to

warrant a departure from the normal rule of borrowing

analogous state limitations periods.

Similarly, the limitations periods in employment discrimina-

tion cases have been borrowed from state law, Johnson v.

Railway Express Agency, 421 U.S. 454, 462 (1975), despite

the fact that such actions frequently call into question mat-

ters which had been settled between unions and employers.

Id.; Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)

(Title VII case). The lower courts have continued to apply

State limitations periods in such suits under 42 U.S.C. § 1981,

even against unionized employers, citing the general rule

Nevertheless, every court that has ruled on the statute of limitations in

hybrid actions under the RLA has chosen the NLRA‘s six-month limita-

tions period. E.g., Dozier v. TWA, 760 F.2d 849, 851 (7th Cir. 1985).

The question remains open in this Court. West v. Conrail, 107 S. Ct. 1538,

1541 n.2 (1987).

discussed in DelCostello as authority. E.g., Howard v. Road-

way Express, 726 F.2d 1529, 1531 (11th Cir. 1984). See also

Goodman v. Lukens Steel Co., 107 S. Ct 2617, 2621 (1987).*

The question to be decided in this case, then, is whether

the effect of LMRDA free speech litigation on stable

labor-management relations is more like that of a hybrid ac-

tion, or more like the many kinds of statutory labor causes

of action held not to fall within the De/ Costello exception. In

making that determination, the Court should take as its point

of departure its admonition in DelCostello that borrowing from

state law remains the rule and not the exception, in labor law

as elsewhere. 462 U.S. at 171-172. We suggest, indeed, that

the Second Circuit, in a secondary boycott case, identified the

correct standard for deciding whether a court should decline

to borrow state statutes of limitations for a particular labor

law claim: section 10(b) should apply only to suits which *‘in-

evitably involve an immediate and direct impact on labor-

management relations.’’ Monarch Long Beach Corp. Uv.

Teamsters Local 812, supra, 762 F.2d at 231. This test, which

is firmly rooted in the rationale of DelCostello, assures that

the normal rule will be altered only in truly unusual situations.

As we now show, no such departure is warranted for free

speech cases under the LMRDA.

‘The courts are divided over the question whether actions by unions

ater Co.. 798 F.2d 222

Compare Elevator Constructors v. Hom Elevator Co., 798 F.2d 222,

= ——

in those cases. they obviously have a far more direct impact on labor-

management relations than do suits under the LMRDA to entorce umon

members) civil liberties.

12

B. The DelCostello Rationale for Borrowing a

Six-Month Period for Hybrid DFR Suits Does

Not Apply To LMRDA Claims.

In order to understand the differences between hybrid DFR

actions and suits under the LMRDA, it is first necessary to

review the objectives that Congress sought to accomplish by

enacting the LMRDA. The LMRDA, and particularly Title I

of the Act, was the product of hearings conducted in the late

1950's by the Senate Select Committee on Improper Activities

in the Labor-Management Field, chaired by Senator McClellan.

S. Rep. No. 187, 85th Cong., 1st Sess. 2 (1959). The Mc-

Clellan Committee investigations revealed many different ways

in which corrupt union leaders had dominated unions and re-

mained unaccountable to their members. The Committee

focused specifically on the problem of international union of-

ficers who ‘‘circumvent freedom of speech on the part of [a]

local’’ by punishing local officers. E.g., 2 NLRB, Legislative

Mistory of the LMRDA 1105 (1959) (Senator Mundt, citing the

McCleilan Committee Hearings).

Thus, Title I has been construed to effectuate its purpose

of guaranteeing ‘‘the independence of the membership and

the effective and fair operation of the union as the represen-

tative of its membership.’’ Hall v. Cole, 412 U.S. 1, 8 (1973).

See also Musicians v. Wittstein, 379 U.S. 171, 182-183 (1964)

(objective is to achieve ‘‘full and active membership participa-

tion in the affairs of the union’’). As explained by then-Chief

Judge Lumbard, the fundamental objective of the Act is to pro-

mote “‘the members’ rights to determine the course of their

organization.’’ Navarro v. Gannon, 385 F.2d 512, 518 (2d Cir.

1967). The LMRDA’s objectives are thus fundamentally dif-

ferent from those of the NLRA, which seeks to encourage

the practice of collective bargaining and which in many respects

subordinates the economic rights of individual employees in

—

13

order to achieve the collective good. Emporium Capwell Co.

v. Western Add’n Cmnty. Org., 420 U.S. 50 (1975); Hum-

phrey v. Moore, 375 U.S. 335 (1964).

In light of these differences in objectives and functions be-

tween the LMRDA and the NLRA, LMRDA claims cannot

properly be grouped with hybrid DFR actions for statute of

limitations purposes, for two reasons which we more fully ex-

plain in the pages that follow. First, LMRUA claims are far

less likely than hybrid suits, or, indeed, than most other kinds

of labor law suits, to pose a direct and immediate threat to

the finality of labor-management compromises or to stable

labor-management relations. Second, an unduly abbreviated

limitations period will likely make it much more difficult to en-

force the LMRDA, contrary to Congress’ intent that the prin-

ciples of union democracy and responsibility be furthered by

an enforcement mechanism which depends solely on the in-

itiative of individual union members.

1. LMRDA Claims Do Not Pose an Immediate or

Direct Threat to Labor Peace or to Labor-

Management Compromises.

There are numerous differences between hybrid DFR ac-

tions and the great majority of LMRDA actions, all of which

militate against borrowing the statute of limitations in section

10(b) for LMRDA suits. See generally Doty v. Sewall, 784 F.2d

1. 3-4. 6-7 (1st Cir. 1986): Rodonich v. Laborers Local 95,

8317 F.2d 967. 976-977 (2d Cir. 1987); Bernard v. Teamsters

Local 435, 587 F. Supp. 524 (D. Colo. 1984); Testa v.

Gallagher, 621 F. Supp. 476 (S.D.N.Y. 1985); Agola v.

Hagner. 120 LRRM 3279 (E.D.N.Y. 1985); Rector v. Elevator

Constructors, 625 F. Supp. 174 (D. Md. 1985); Maguiri r,

MeQueen, 122 LRRM 2449 (S.D.N-Y. 1986). The principe!

goa! of most hybrid sults Is to protect an emplovee s econom

14

rights under a collective bargaining agreement, generally in

the form of reinstatement, back pay, or improved seniority.

The union is sued because the worker must show a violation

of the DFR as a precondition to the right to enforce the con-

tract against the employer, Vaca v. Sipes, 386 U.S. 171 (1967),

and because the union may bear responsibility for a portion

of the resulting economic loss. Bowen v. Postal Service, 459

U.S. 212 (1983).

LMRDA suits, by contrast, seek to vindicate a union

member's civil liberties or other political rights within the

union, just as an action under section 1983 against a public

official seeks to redress a violation of the constitution’s Bill

of Rights. Furthermore, unlike the DFR, which is inferred from

the NLRA itself, rights under the LMRDA were directly pro-

vided for, precisely because Congress was dissatisfied by the

failure of the NLRA, even as amended by the LMRA, to

regulate internal union affairs and thus to protect union

members from undemocratic abuses by their leaders. See

generally McAdams, Power and Politics in Labor Legislation

(1964). See also Boilermakers v. Hardeman, 401 U.S. 233,

237-241 (1971); NLRB v. Allis-Chalmers Mfg. Co., 388 U.S.

175, 194-195 (1967). And in DelCostello, the Court relied on

the fact that the NLRA, which itself contains a six-month limita-

tions period, is the source of a union’s DFR in deciding to apply

the six-month period to hybrid actions. 462 U.S. at 170.

Another important difference between LMRDA and hybrid

DFR actions is that, although the latter inevitably involve at-

tacks on decisions resolving disputes between labor and

management, which undermine the finality of these

agreements, LMRDA actions normally do not involve such

matters. Rather, the usual question is whether discipline was

imposed without due process or a member’s free speech rights

nfringed, sections 101(a)(2) and (5), 29 U.S.C. § § 411(a)(2)

15

and (5), whether dues were improperly increased, section

101(a)(3), 29 U.S.C. § 411(a)(3), whether a class of members

was improperly denied the right to vote at a meeting, section

101(a)(1), 29 U.S.C. § 411(a)(1), whether union members

have the right to examine books and records, section 201(c),

29 U.S.C. § § 431(c), or whether a union officer has miss-

pent union funds. Section 501, 29 U.S.C. § 501. Not only

do these issues not involve labor peace or collective bargain-

ing, but it has been uniformly held that employers are not even

proper defendants in such actions. E.g., Duncan v. Penin-

sula Shipbuilders Ass'n, 394 F.2d 237, 239 (4th Cir. 1968).

Thus, unlike DFR actions, most LMRDA suits have no direct

impact on labor-management relations or on labor peace and

stability .®

Some courts have stated that the outcome of LMRDA ac-

tions may affect labor-management relations in a way that is

comparable to the outcome of a hybrid action, because the

exercise of democratic rights of the LMRDA may lead to a

change in union policy, whether by the election of new officers

or otherwise. Steelworkers Local 1397 v. Steelworkers, 748 F.2d

180. 184 (3d Cir. 1984). But the fact that a union may change

its policies does not mean that it has the right to overturn col-

lective bargaining agreements or reopen grievances that have

already been resolved with the employer. Indeed, Congress

has decreed that local unions must hold elections at least every

three years, 29 U.S.C. § 481(b), but that scarcely means that

bargaining compromises made during one officer's term are

destabilized by the possibility that the officer may be defeated

in an election held during the term of the agreement. In sum,

although LMRDA rights may indirectly affect the union's rela-

‘Inasmuch as LMRDA suits cannot proceed against both employers and

unions, the justification offered in DelCostello for resorting to federal law

to find a single applicable limitations period, 462 U.S. at 169 n.19, also

disappears.

16

tions with an employer, that effect is by no means comparable

to the destabilizing effect of DFR actions, and a six-month

Statute of limitations is not needed to advance the policy

underlying the NLRA of promoting stability in labor relations.

The court below borrowed the six-month limitations period

because it feared that an internal union dispute ‘‘if allowed

to fester,’’ could ‘‘erode the confidence of union members

in their leaders’’ or ‘‘distract union officials from their... .

representation of union members in their relations with

employers.’’ 828 F.2d at 1070. However, precisely these

arguments were made to Congress in opposition to the Bill

of Rights for Union Members (Title I), but Congress rejected

them when it enacted the LMRDA. In essence, Congress

decided that the risk of damage to a union’s collective bargain-

ing position was outweighed by the members’ interest — and

the public interest — in union democracy. Navarro v. Gan-

non, 385 F.2d 512, 518 (2d Cir. 1967).

As a theoretical matter, it is possible that the resolution of

an LMRDA action might eventually have some indirect im-

pact on the collective bargaining relationship between the

defendant union and some employers. If, for instance, the

LMRDA had prevented Jimmy Hoffa from imposing a

trusteeship on an errant local when it refused to cooperate

in one of his labor shakedowns of an employer, see 29 U.S.C.

§ 462, labor-management relations might have been affected.

If a union cannot increase its dues because the membership

does not want to pay for a larger strike fund, see 29 U.S.C.

§ 411(a)(3), perhaps the leadership will be more reluctant to

call strikes. Or union officers may be more cautious in the way

they use strike funds if they know that their expenditures can

be called into question as excessive under a fiduciary duty

theory. See 29 U.S.C. § 501. And if a union officer such as

petitioner Reed cannot be subjected to discrimination because

17

he is considered by the union leadership to be a ‘‘company

man,’’ Jt. App. 28, § 3(b), perhaps the result will be a less

adversarial relationship with management. In this sense, some

LMRDA actions may have some indirect impact on economic

relations between unions and employers and on labor peace

in some circumstances.

But in that sense, every labor case, including one involving

racial discrimination under 42 U.S.C. § 1981, has such an im-

pact. Yet in DelCostello the Court said that, in labor cases as

elsewhere, the normal rule applies — 1.e., there is a strong

presumption in favor of borrowing from state limitations

periods instead of from federal law. 462 U.S. at 171-172. Thus,

the mere existence of the Congressional policy favoring the

rapid disposition of labor disputes, which is embodied in sec-

tion 10(b), and which was a primary basis for applying that

limitation period to DFR suits, does not require that section

10(b) be used in actions by union members under the LMRDA.

In another context, the lower courts have recognized the

minimal impact which most intra-union disputes have on labor-

management relations and on labor peace. Thus, until recently,

most courts held that federal courts had no jurisdiction over

suits to enforce a union constitution as a contract between

labor organizations unless the dispute threatened industrial

peace or had a ‘‘significant impact’’ on labor-management rela-

tions. E.g., Alexander v. Operating Engineers, 624 F.2d 1235,

1238 (5th Cir. 1980). The courts have generally been reluc-

tant to find that intra-union disputes in fact have such a signifi-

cant impact; for example, in Alexander, the court found no

significant impact even though the issue was whether a union

should be liable in damages because its business agent allegedly

executed a contract without the membership’s approval.

Although this Court has since held this distinction irrelevant

to the enforcement of union constitutions, at least in cases

18

brought by local unions, Plumbers Local 334 v. Plumbers, 452

U.S. 615 (1981), the analysis in cases such as Alexander is

plainly inconsistent with the assumption that all intra-union

disputes about free speech rights must inevitably have such

a direct and immediate effect on labor-management relations

as to warrant borruwing the statute of limitations from sec-

tion 10(b).

There is evidence in the LMRDA itself that suggests that

Congress did not contemplate a short statute of limitations

in private civil actions under the statute. Thus, in Title III,

Congress established a presumption that, absent clear and

convincing evidence to the contrary, a trusteeship was lawful

if suit is filed within the first 18 months after the trusteeship

is established. After 18 months, by contrast, there is an op-

posite presumption — 1.e., that the trusteeship was unlawful.

29 U.S.C § 464(c). Yet trusteeships are often imposed

because of disputes between locals and internationals about

bargaining matters, e.g., Roland v. Airline Employees, 753 F .2d

1385 (7th Cir. 1985); 29 U.S.C. § 462 (proper purpose for

trusteeships is to assure acceptance of contract ‘‘concessions”’

negotiated by national union). Moreover, litigation over the

authority of a trustee, who takes over a local union and con-

ducts its negotiations with employers, is far more likely than

most Title I suits to affect relations between a union and the

employers with which it bargains. E.g., Moody v.

Longshoremen, 112 LRRM 2340 (N.D. Ohio 1982); cf. 1820

Central Park Avenue Restaurant Corp., 271 NLRB 378, 378

n.3 (1984) (suggesting that trusteeship might affect employer’s

duty to bargain). Inasmuch as Congress plainly intended suits

under Title III of the LMRDA to be filed more than 18 months

after trusteeships are imposed, it is highly unlikely that Con-

gress intended a six-month limitation period for suits under

Title I of the same Act.

——

19

Admittedly, there is a small class of LMRDA cases which

may have a direct and immediate impact of the kind present

in DelCostello. Typically, in such cases, an LMRDA claim is

appended to a DFR suit as an alternate theory by which the

plaintiffs urge the court to overturn a collective bargaining

agreement on the ground that it was not properly ratified by

the union membership. Most of the early post-DelCostello deci-

sions which applied section 10(b) to an LMRDA claim involv-

ed that sort of contention. See Adkins v. Electrical Workers,

769 F.2d 330, 335 (6th Cir. 1985); Vallone v. Teamsters Local

705, 755 F.2d 520 (7th Cir. 1984); Linder v. Berge, 739 F.2d

686 (1st Cir. 1984). However, the possibility that occasional

LMRDA claims might pose a direct and immediate threat to

a labor-management compromise scarcely provides justifica-

tion for applying a six-month limitations period to the remain-

ing bulk of LMRDA suits which pose no such danger.®

Some courts have held that section 10(b)’s limitation period

should be applied to LMRDA cases because the NLRB has

extended section 7 to protect the right of union members to

engage in dissident activity, and so the LMRDA is said to have

a ‘‘family resemblance’’ to unfair labor practices and to the

DFR. E.g., Steelworkers Local 1397, 748 F.2d at 183, citing

Steelworkers Local 1397, 240 NLRB 848, 849 (1979); Reed

v. UTU, 828 F.2d at 1070. This argument is incorrect for two

reasons. First, under DelCostello, the only ‘‘resemblance’’

6We doubt that such LMRDA claims will frequently be brought more

than six months after the alleged wrongful act, both because the courts

are reluctant to award damages in such cases, Acn v. Machinists, 781

F.2d 1393 (9th Cir. 1986), and because the only useful injunctive relief

at that point would have to apply to the employer, who cannot be held

liable under the LMRDA. Thus, effective relief can only be obtained before

the contract has been implemented. E.g., Bauman v. Presser, 117 LRRM

2393 (D.D.C. 1984). See generally Levy, Membership Rights in Union

Referenda to Ratify Collective Bargaining Agreements, 4 Hofstra Lab. L.J.

225, 258-265 (1987).

20

that warrants adoption of the extraordinarily short six-month

period would be a similarity in effect on national labor policy;

yet, as we have shown above, the connection between most

LMRDA actions and the consensual process of bargaining and

grievance adjustment is at most indirect. Second, unlike the

DFR, which is almost by definition an unfair labor practice,

most LMRDA actions find no parallel in the NLRA. Thus, in

Steelworkers, as in almost all NLRB cases where a union was

found to have committed an unfair labor practice by punishing

a dissident, the unlawful activity of the union related to employ-

ment rights, such as threatening to refuse to process a dissi-

dent’s grievances and asking the employer to discharge a dissi-

dent. Steelworkers Local 1397, 240 NLRB 848, 849 (1979),

and cases cited. See also Teamsters Local 745, 240 NLRB 537

(1979) (threat of violent retaliation).’

Admittedly, if a union officer assaults a member or causes

him to be discharged or otherwise mistreated by the employer

in retaliation for the exercise of Title I rights, that violates

section 101(a)(2) of the LMRDA, e.g., Shimman v. Frank,

625 F.2d 80, 90-91 (6th Cir. 1980); Murphy v. Operating

Engineers Local 18, 774 F.2d 114, 123 (6th Cir. 1985), as well

as section 8(b)(1)(A) of the NLRA. However, not only do such

Cases represent a minute portion of the cases that may be fil-

ed under Title I, but it is precisely because Congress was

dissatisfied with the extent of protection afforded union

dissenters by the NLRA that it enacted Title I of the LMRDA

and gave union members the right to go to court over their

mistreatment at the hands of union leaders. In those

7In some cases, the Board found a violation of the NLRA when unions

fined workers for being dissidents. E.g., Carpenters Local 22, 195 NLRB

1 (1972). More recently, the Board has recognized a congressional policy

‘“not to interfere with the internal affairs of unions, aside from regulations

affecting employment status.’’ East Texas Motor Freight, 262 NLRB 868,

870 (1982).

|

,

3

f

:

;

:

:

21

circumstances, even if the NLRB has now expanded its own

doctrines to address some of the problems tliat it had neglected

in 1959, it would be odd indeed to start borrowing limiting prin-

ciples from the very statute that Congress deemed inadequate,

in order to reduce the impact of the LMRDA on union in-

terests. Wilson v. Garcia, 471 U.S. 261, 279 (1985) (Court

declines to borrow limitations period for state remedies for

wrongs by public officials, because ‘‘[i]t was the very ineffec-

tiveness of state remedies that led Congress to enact the

.. . Act in the first place’’).

In summary then, the vast majority of LMRDA claims in

general, and Reed's claims in particular, do not pose a direct

or immediate threat to labor-management compromises or to

labor peace, and hence application of the six-month limitations

period of section 10(b) is unwarranted.

2. A Six-Month Limitations Period Threatens the

Enforcement of the Union Democracy Provisiuns of

the LMRDA.

Although delay in the filing of LMRDA suits does not pose

a threat to stable labor-management relations, a statute of

limitations as abbreviated as six months does pose a signifi-

cant threat to union members’ access to judicial protection.

This Court recognized the problem in DelCostello, where it

discussed the difficulty that members have in deciding whether

their rights have been violated, in finding counsel in a field in

which almost all of the specialists represent either unions or

employers, in finding money to pay the lawyer, and in perfor-

ming all of the investigative and other prerequisites to suing.

462 U.S. at 166. It was also considerations of this kind that

led the Court, in Burnett v. Grattan, 468 U.S. 42 (1984), to

decline to borrow a state six-month limitation period applicable

to state administrative discrimination claims, to determine the

22

time for filing a complaint under 42 U.S.C. § 1981 in federal

court. Jd. at 49-52.

There are other elements of LMRDA cases that make a

short statute of limitations inappropriate. For instance, in a

hybrid action, a worker who has already been discharged may

have nothing to lose and much to gain by filing suit against

his union and his employer. By contrast, an employee who

believes that his LMRDA rights have been violated by his

union, but who has not lost his job, may have good reason

to think twice before going to court over an abstract principle

of justice and democracy, or to recover a few dollars in

unlawfully collected or misspent union dues. If he decides to

go to court, he must sue a labor official who controls hiring

hall referrals, decides whether or not to process grievances,

and constantly trades away benefits of one group of members

in order to obtain benefits for others. Thus, most workers

are justifiably cautious about stepping forward to confront their

leaders.

Moreover, in many LMRDA cases the individual plaintiff who

prevails receives few tangible benefits, if any. Unlike a DFR

case, in which the plaintiff's injury is primarily economic, and

the principal relief sought is reinstatement and damages for

the denial of employment opportunities, in an LMRDA case

the member rarely has any significant economic interest at

stake. Rather, the principal beneficiaries are the union

membership as a whole and the public interest in honest and

democratic unions. Hall v. Cole, 412 U.S. 1, 7-8 (1973). For

example, Reed’s case involves reimbursement of barely more

that $1,000. In these circumstances, a statute of limitations

that allows a very short time for deciding whether to under-

take the risks of suing will inevitably have the effect of unduly

limiting the enforcement of the Act. Doty, 784 F.2d at 9. And

yet, unlike the DFR which can be enforced by the NLRB, the

23

L:..RDA is enforced solely by suits filed by individual union

members who have hired a lawyer to represent them. It is

for these reasons, among others, that commentators as

diverse as Archibald Cox, counsel to the draftsmen of the

LMRDA, and Florian Bartosic, former general counsel of the

Teamsters Union, have urged sensitivity to the difficulties

which rank-and-file union members will have in serving as the

sole means of enforcement of the Act. Cox, /nternal Affairs

of Labor Unions Under the Labor Reform Act of 1959, 38 Mich.

L. Rev. 819, 853 (1960); Bartosic, Union Fiducianes, At-

torneys, and Conflicts of Interest, 15 U.C. Davis. L. Rev. 227,

359-360 (1982).

Accordingly, because applying a limitations period as short

as six months would imperil Congress’ objectives in passing

the LMRDA, in ways which a similar limitations period does

not undermine enforcement of the DFR, the Court should not

adopt the six-month period in section 10(b) for LMRDA ac-

tions, even if the other concerns that motivated the Court in

DelCostello to borrow it for hybrid actions were applicable.

C. The Proper State Limitations Period.

Amici’s principal objective in this case is to persuade the

Court not to extend the DelCostello exception to Title I of the

LMRDA. Amici do not have strong views about which state

limitations period should be borrowed, in this case or

elsewhere. because a limitations period of two, three, or four

“By contrast, Congress has provided that union elections may be

challenged by the Secretary of Labor, and a short statute of limitations

is provided for such cases. 29 U.S.C. § 482.

24

years will suffice to protect Congress’ objective of establishing

effective democratic rights for union members.°

We recognize that the Court has recently moved in the direc-

tion of adopting uniform limitation periods for broad classes

of suits, in order to reduce the burdens imposed on the courts

and the parties by litigation over the proper limitation periods

for fact-specific claims. Wilson v. Garcia, 471 U.S. 261 (1985)

(42 U.S.C. § 1983); Agency Holding Corp. v. Malley-Duff &

Assoc., 107 S. Ct. 2759 (1987) (RICO). Title I has not pro-

duced nearly the outpouring of litigation spawned by section

1983 or by RICO, and thus might present a less compelling

case for a uniform limitations period, perhaps because many

of its claims seek injunctive relief for which laches may be the

applicable doctrine. On the other hand, there are clear benefits

to be gained from a predictable statute of limitations period

for all potential Title I claims, so that the parties can have some

certainty in advance when a specific claim, whose limitations

period has not been litigated, will become untimely.

If the Court does opt for a uniform limitations period for all

Title I claims, North Carolina’s three-year limitations period

for personal injury limitations, N.C. Gen. Stat. § 152(16),

seems to be the most closely analogous. It is true that Title

I claims may relate to what may seem to be a variety of sub-

jects, including economic issues such as blacklisting of

dissidents, monetary issues such as disciplinary fines and dues

levels, and political issues such as the right to speak at union

*However the Court rules on limitations periods for Title I claims, it

should not try to fix a uniform limitations period for claims under other

titles of the LMRDA. There are provisions for private civil actions under

several of the other titles which may raise different considerations from

those raised by Title I suits. E.g., section 201(c), 29 U.S.C. § 431(c)

(right to inspect union records); section 501, 29 U.S.C. § 501 (fiduciary

duties of union officers). See Erkins v. Bryan, 785 F.2d 1538, 1543 (11th

Cir. 1986).

~

ee es ee

25

meetings or to vote on bylaws amendments. Despite these

apparent differences, the one thing which all Title I cases have

in common is that individual members’ civil rights or civil liber-

ties, conferred by the ‘‘Bill of Rights of Members of Labor

Organizations,’’ have been infringed. Indeed, the rationale for

enacting this congressional charter for union democracy was

that Congress had given unions certain powers over their

members, and thus it was fair to subject unions to some of

the same kind of restraints that confine the power of public

authorities. In this sense, Title I provides a cause of action

for union members to enforce certain constitutional rights

against their unions, much as section 1983 provides a cause

of action whereby persons may enforce their constitutional

rights against improper state action. Thus, for the same

reasons that the Court has borrowed the state limitations

period for personal injuries for civil rights actions under sec-

tions 1983 and 1981, Wilson v. Garcia, 471 U.S. 261 (1985);

Goodman v. Lukens Steel Co., 107 S. Ct. 2617, 2620-2622

(1987), it would be appropriate here to borrow the North

Carolina statute of limitations for personal injury claims.

If, on the other hand, the Court does not determine to adopt

a uniform limitations period for all Title I claims, then three

possibilities present themselves here. The Court might bor-

row the state limitations period for personal injury claims, on

the theory that the fundamental issue in this case is whether

the union was trying to suppress petitioner’s personal rights.

N.C. Gen. Stat. § 1-52(16). Or it might borrow the state’s

catch-all statute of limitations for rights conferred by statute,

because petitioner seeks to enforce nghts contained in a federal

statute for which North Carolina has not specified a limitations

period. N.C. Gen. Stat. § 1-52(2). Or, insofar as petitioner

seeks to obtain payment for work done for the union that would

have been paid pursuant to the union’s normal practice, ab-

26

sent the union's improper motive, the Court could conclude

that the state limitations periods for quantum meruit or con-

tract actions is the most closely analogous. N.C. Gen. Stat.

§ 1-52(1). In this case the result would be the same under

any of these alternatives, because the North Carolina statute

of limitations for all of these causes of action is three years,

but that is unlikely to be true in every state.

But whether the Court opts for a broad uniform limitations

period, or for a more claim-specific approach, there are a

number of acceptable analogies to state law causes of action

that serve the Congressional objective of effective, enforceable

union democracy rights, and that do not injure the national

labor policy favoring expeditious resolution of contract disputes

between unions and employers. Accordingly, there is no need

to borrow the extraordinarily short six-month period contain-

ed in section 10(b) of the NLRA.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted,

Paul Alan Levy

(Counsel of Record)

Arthur L. Fox II

Alan B. Morrison

Public Citizen Litigation Group

Suite 700

2000 P Street, N.W.

Washington, D.C. 20036

(202) 785-3704

May 6, 1988 Attorneys for Amic1 Curae

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