Amicus Curiae Brief — Clift v. International Union, United Automobile, Aerospace & Agricultural Implement Workers

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OCTOBER TERM, !987

DONALD JOSEPH CLIFT, ET AL., PETITIONERS

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE

AND AGRICULTURAL IMPLEMENT WORKERS OF

AMERICA (UAW), ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

CHARLES FRIED

Solicitor General

DONALD B. AYER

Deputy Solicitor General

GLEN D. NAGER

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

GEORGE R. SALEM

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor

ELLEN L. BEARD

Altorney

Department of Labor

Washington, D.C. 20210

QUESTIONS PRESENTED

1. Whether the six-month statute of limitations period

applicable to unfair labor practice charges under the Na-

tional Labor Relations Act, 29 U.S.C. 160(b), is ap-

plicable to petitioners’ claim under Title I of the Labor-

Management Reporting and Disclosure Act of 1959

(LMRDA), 29 U.S.C. 411-415, alleging that a union has

improperly denied certain union members the right to vote

on ratification of a proposed collective bargaining agree-

ment, where that claim is joined with allegations under

Section 301 of the Labor-Management Relations Act

(LMRA), 29 U.S.C. 185, that the union violated its duty

of fair representation and the employer violated its obliga-

tions under a prior collective bargaining agreement.

2. Whether the claims raised in this case under the

LMRDA and the LMRA, 29 U.S.C. 185, were initiated

within six months of the accrual of the underlying cause of

action.

3. Whether the alleged denial of voting rights by the

respondent unions in this case involved sufficient govern-

mental action to require that constitutional due process

concerns be satisfied.

(I)

TABLE OF CONTENTS

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I 202 ald cae a aes tie Y a © shcdaceg lave eenaR Ea

NE ay a cb wee ae RKE asc Cede eae ee

TABLE OF AUTHORITIES

Cases:

Abrams v. Carrier Corp., 434 F.2d 1234 (2d Cir. 1970),

cert. denied, 401 U.S. 1009 (1971) ..................

Adkins v. International Union of Elec. Workers, 769 F.2d

PEO x ow ene ted exten shew neaa vee

Agency Holding Corp. v. Malley-Duff & Assocs., Nos.

86-497 & 86-531 (June 22, 1987) ............... dees

American Postal Workers, Local 6885 v. American

Postal Workers Union, 665 F.2d 1096 (D.C. Cir.

Dr teee te eet reer rau tan ceca ahs wsats

Bell v. Metropolitan Sch. Dist., 582 F. Supp. 3 (S.D.

aah ini la apiid niet gaia sb ld dak ian

Christopher v. Safeway Stores, Inc., 476 F. Supp. 950

(E.D. Tex. 1979), aff'd, 644 F.2d 467 (Sth Cir. 1981)...

Communication Workers of America v. Beck, cert.

granted, No. 86-637 (June 1, 1987) ................ 3

Dantagnan v. 1.L.A., Local 1418, 496 F.2d 400 (Sth Cir.

ae oe ec eae ae ha se edo ac hae CAE OS

Davis v. UAW, 765 F.2d 1510 (11th Cir. 1985), cert.

Ss Ue Scie UE CEUUD ook oo ccc cece nesneveea.s

DelCostello v. International Bhd. of Teamsters, 462 U.S.

EN en a uae oeaeee ka 3-4, 7, 8, 10,

Doty v. Sewall, 784 F.2d 1 (Ist Cir. 1986) ........ 5, 8, 9,

Finnegan v. Leu, 456 U.S. 431 (1982) .................

General Building Contractors Ass’n v. Pennsylvania,

nn ok dies ds dee a beeen a eka wo

Goodman v. Lukens Steel Co., No. 85-1626 (June 19,

Ne ee ls ac dws p MA ead OO OR 9,

Grasty v. Amalgamated Clothing & Textile Workers

Union, 828 F.2d 123 (3d Cir. 1987) .................

Hayes v. Consolidated Service Corp., 517 F.2d 564

ee as cle cu x hae Kaw

International Bhd. of Teamsters, Local 310 v. NLRB,

ope ey | Sea A: ere

(111)

Page

7-8, 9

18, 19

11, 13

12, 15

14, 15

Cases — Continued Page

Johnson v. Railway Express Agency, 421 U.S. 454

CE a vehi aep Mane Cee EE eke eee es 14

Kolinske v. Lubbers, 712 F.2d 471 (D.C. Cir. 1983) ..... 11

Linder v. Berge, 739 F.2d 686 (Ist Cir. 1984) ........... 16

Local 82, Furniture Moving Drivers v. Crowley, 467 U.S.

5 oh a Fic oc a 84s ene ad Ces 8 ae e ues 8

Local Lodge No. 1424, Int’l Ass’n of Machinists v.

oe ee ee | errr rere eT er ee 17

Local Union 1397 v. United Steelworkers, 748 F.2d 180

COE Ge, FR ia edb hace d awe kes Nash asieese. 15

Parker v. Locai Union No. 1466, United Steelworkers of

America, 642 F.2d 104 (Sth Cir. 1981) ................. 13

Pattern Makers’ League of North America v. NLRB, 473

OSs ThA ss Pa aul ceed ecuens sees ea eriewess 12

Price v. UA W, 795 F.2d 1128 (2d Cir. 1986) ............ 11

Reed v. United Transp. Union, 828 F.2d 1066 (4th Cir.

OOS rr rene rrr r rein gcd. Ewer: 8, 15

Rodonich v. House Wreckers Union, Local 95, 817 F.2d

ik: Ge e+) re er pie ee are eae 9, 15

Ross v. Summers, 530 F. Supp. 1267 (N.D. Ind. 1986) ... 10

Sewell v. Grand Lodge of Int’l Ass’n of Machinists &

Aerospace Workers, 445 F.2d 545 (Sth Cir. 1971), cert.

Goma, SOG 4T. CBG Cees i 0c vince s nsec cu teaceea 8

Trotter v. International Longshoremen’s & Warehouse-

men’s Union, Local 13, 704 F.2d 1141 (9th Cir. 1983) .. 8

UAW v. Hoosier Cardinal Corp., 383 U.S. 696 (1966) ... 10

United Indep. Flight Officers v. United Air Lines, 756

he | er err Pee er ee 17

United Steelworkers v. Sadlowski, 457 U.S. 102 (1982)... 8, 18

Vallone v. Local 705, Int'l Bhd. of Teamsters, 755 F.2d

op 2S Oe re er ere rr ee nas 4, 5, 10, 15

Wilson v. Garcia, 471 U.S. 261 (1985) ................ 8, 9, 14

Constitution, statutes and rule:

U.S. Const.:

GIs a ce he ae oe tae 18

Amend. V (Due Process Clause) .................. 3

Labor-Management Relations Act of 1947 § 301, 29

es EE ban. os 6 eee Rae eade cab eetarnen 3, 10, 11, 12, 15

Constitution, statutes and rule— Continued Page

Labor-Management Reporting and Disclosure Act of -_

fe Me me Re aD ee. roe ey as 7

9, 10, 11, 14, 15, 18

ee Le ee | BR eeerrry errr re ere eee 18

2. 20h YO: ere ea ree 7

National Labor Relations Act, 29 U.S.C. 151 ef seq.:

Ss, Sf eS kb cae os dee dasaees 3

Bo BS Soe eer ere 5, 10, 13, 14

FORTE Po 0 er ere er ree rrr ee ree y’

Be Eels ee a oe chs ha eA Sad ork eek eke iene 8

Be res SE kin vs ob des pee kaeukae bee 9, 14

BRS PPT eR ee ere tery Prete re eer 9, 14

Ind. Code Ann. § 34-1-2-2 (Burns 1986) ............... 10

eh, SR. Th ee 0s HAR KR eae Re Rea AR 6

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-42

‘DONALD JOSEPH CLIFT, ET AL., PETITIONERS

INTERNATIONAL UNION, UNITED AUTOMOBIL®. AEROSPACE

AND AGRICULTURAL IMPLEMENT WORK. | ~ OF

AMERICA (UAW), ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s order

inviting the Solicitor General to express the views of the

United States.

STATEMENT

1. Petitioners are four employees of the Indianapolis,

Indiana plant of respondent Navistar International

Transportation Corp. (Navistar), formerly International

Harvester Co. (Pet. App. A3). They were on layoff in ear-

ly 1982 when, because of its precarious financial condi-

tion, Navistar entered into negotiations with the respond-

ent unions, International Union, United Automobile,

Aerospace and Agricultural Implement Workers of

America and its Region 3 and Local 98 (UAW), concern-

ing possible concessions on their existing collective

bargaining agreement, which was scheduled to expire in

October 1982 (id. at A3-A4). The negotiations between

Navistar and the UAW culminated, in April 1982, in a ten-

(1)

tative agreement that created, among other things, a na-

tionwide Master Recall system under which employees on

layoff could fill openings at other Navistar plants (pro-

vided that no local employees were on layoff) and carry

their existing seniority status to any such openings (id. at

A4).

On May 2, 1982, the UAW notified its members of the

tentative agreement, including the new Master Recall

system, held meetings with these members to explain its

terms and effects, and submitted the agreement to the

members for their ratification (Pet. App. A4). A majority

of the members of the local and international unions who

participated in the ratification referendum approved the

proposed agreement, which then became effective the next

day— May 3, 1982 (ibid.). Petitioners did not receive

special notice of the proposed agreement and were not per-

mitted to vote in the ratification referendum, because the

UAW did not consider them to be members in good stand-

ing entitled to vote (ibid.). See UAW Br. in Opp. 4 n.5

(describing UAW rule concerning who is entitled to vote).

Petitioners, along with all others then on layoff, were

recalled to work at the Indianapolis plant in late 1982 and

early 1983 (Pet. App. AS, Al4). Subsequently, on March

7, 1983, the first of several hundred transferees from other

plants arrived at the Indianapolis plant (id. at AS). Pur-

suant to the Master Recall system, the transferees were

placed higher on the seniority list—and thus achieved

greater layoff and recall rights —than some employees who

had worked at the Indianapolis plant prior to the

transferees’ arrival, including petitioners (ibid.). Peti-

tioners complained to Navistar and the UAW, but

Navistar and the UAW wouid not process their claims

through the grievance/arbitration system, and the UAW

was unwilling to nullify the original ratification voie or to

renege On its agreement with Navistar (Pet. 5-6).

Accordingly, on September 6, 1983, some sixteen

months after the agreement was ratified bui less than six

months after the first transferee arrived at the In-

dianapolis plant, petitioners filed this suit against Navistar

and the UAW (Pet. 6; Pet. App. AS). Petitioners alleged,

inter alia, that the UAW had failed to provide them with

notice of the proposed agreement, to explain the effect

that the Master Recall system would have on them, and to

respect their right to participate in the ratification referen-

dum (Pet. 6-7; Pet. App. AS). The complaint, as

amended, was read by the courts below as asserting viola-

tions of: (a) the union’s duty of fair representation under

the National Labor Relations Act (NLRA), 29 U.S.C.

159(a), enforceable under Section 301 © the Labor-

. Management Relations Act of 1947 (LMR.4), 29 U.S.C.

185; (b) the employer’s obligations under the prior collec-

tive bargaining agreement, also enforceable under Section

301 of the LMRA; (c) the union member’s “bill of rights,”

set forth in Title I of the Labor-Management Reporting

and Disclosure Act of 1959 (LMRDA), 29 U.S.C. 411-415;

and (d) the Due Process Clause of the Fifth Amendment

(Pet. App. AS, Al7-A18, A21). Petitioners charged that

the union’s acts deprived them of their rights under the

seniority system of the prior collective bargaining agree-

ment and prayed that the district court award them com-

pensatory and punitive damages and enjoin the UAW and

Navistar from enforcing the provisions of the new agree-

ment, including the Master Recall system (Pet. 6-7; Pet.

App. AS).

2. The district court granted the motions of the UAW

and Navistar to dismiss or for summary judgment (Pet.

App. A17-A22). Initially, it noted that “hybrid [Section]

301/oreach of duty of fair representation claims are sub-

ject to the six-month limitations period in [Section] 10(b)

of the Nationa! Labor Relations Act” (id. at Al9, citing

DelCostello v. International Bhd. of Teamsters, 462 U.S.

151 (1983)). It further noted that “the Seventh Circuit

Court of Appeals has held that the six-month period also

applies to claims brought under Title I of the Labor-

Management Reporting and Disclosure Act” (Pet. App.

Al19, citing Vallone v. Local 705, Int’l Bhd. of Teamsters,

755 F.2d 520 (7th Cir. 1984)). It then determined that these

causes of action accrued on May 2, 1982, when the con-

tract was ratified, because “[petitioners] should have

known the meaning of the Master Recall List as of [that

date],” and because “the new contract was reported in the

local media and * * * a union member would have been

able to determine when the ratification meeting was to be

held” (Pet. App. A20, A21). Finally, the court refused to

allow petitioners to add a due process claim to their com-

plaint, stating that “the negotiation of the seniority provi-

sions does not constitute state action” and “[t}he govern-

ment * * * has not transferred traditional state functions

to the union nor has it acted with the private parties in

negotiating the contract” (id. at A21).

3. The court of appeals affirmed (Pet. App. A2-A16).

It noted that, in De/Costello v. International Bhd. of

Teamsters, supra, this Court “decided that in ‘hybrid’ [Sec-

tion] 301 suits, involving both employer violations of the

collective bargaining agreement and the union’s failure to

fairly represent the complaining employee, the ap-

propriate limitation period to borrow is the six-month

limitation period for unfair labor practices found in [Sec-

tion] 10(b) of the NLRA” (Pet. App. A8). It rejected peti-

tioners’ argument that the instant case is distinguishable

from DelCostello because the present case is closer to a

straightforward contract dispute and involves alleged im-

proprieties during contract negotiations rather than during

the grievance process (id. at A9-A10). The court noted

that, as in DelCostello, “this is a suit by individual

employees against both the employer and the union,” and

“the primary dispute in this case concerns whether the

Union acted properly under federal laws controlling its

decision-making processes.” It thus reasoned that, “[s]ince

this case involves a union’s duties when negotiating a con-

tract, an issue central to federal labor law, policy con-

siderations favor a uniform statute of limitations,” and

“{ajn unfair labor practice is a more closely analogous

cause of action” than is a breach of contract claim. Ac-

cordingly, it held that “the appropriate statute of limita-

tions to apply to the LMRA claims is the six-month limita-

tion period found in [Section] 10(b) of the NLRA” (id. at

Al10-A11). 7

The court further rejected petitioners’ argument “that

their LMRDA claims should not have been subjected to

the six-month limitation period” (Pet. App. All). It noted

its prior decision in Vallone v. Local 705, Int'l Bhd. of

Teamsters, supra, holding that “the reasoning in

DelCostello applies equally to both LMRA [Section] 301

claims and claims under sections 411 and 412 of the

LMRDA,” and on that account applied the six-month

limitations period of Section 10(b) of the NLRA, 29

U.S.C. 160(b), to petitioners’ LMRDA claims (Pet. App.

Al1-Al12).!

The court next rejected petitioners’ alternative argument

that their claims were filed within the six-month period

(Pet. App. Al2). It noted that “[t}he claims in this case

concern the improper ratification of a collective bargain-

ing agreement” (ibid.), and ruled that these claims must

have “accrued when the collective bargaining agreement

was entered into in May 1982, unless the existence of the

' The court expressly refused to reconsider its earlier decision in

Vallone, stating that “a number of circuits are in accord with the con-

clusion we reached in Vallone” (Pet. App. Al2 n.5), and that the deci-

sion of the First Circuit in Doty v. Sewall, 784 F.2d 1 (1986), is

distinguishable because it involved matters concerning neither “the

bargaining process nor any grievance with [the individual’s] employer”

(Pet. App. Al2 n.5).

new contract could not reasonably have been discovered

until later and was not actually discovered by plaintiffs

until later” (id. at Al3). The court then found that each of

the four petitioners either knew or should have known,

through the exercise of reasonable diligence, of the ex-

istence and contents of the contract more than six months

before they filed suit (id. at Al4-A15). Accordingly, it

held that “[t}he LMRA and LMRDA claims [are] time-

barred for all four [petitioners]” (id. at Al5).

Finally, the court affirmed the district court’s rejection

of petitioners’ due process claim (Pet. App. A15). It stated

that, “[a]bsent the requisite governmental action, there

can be no claim for a denial of constitutional due process”

(ibid.).

DISCUSSION

Three separate questions are “fairly included” (Sup. Ct.

R. 21.1(a)) in petitioners’ challenge to the decision of the

court below. First is the question whether their claim

under Title | of the LMRDA, alleging that the union im-

properly denied them the right to vote in the ratification

referendum, is governed by the six-month limitations

period applicable to unfair labor practice charges under

the NLRA (Pet. 8-14).? Second, petitioners assert (Pet.

18-25) that they in fact initiated their LMRDA and LMRA

claims within six months of the accrual of their underlying

cause Of action. Finally, they urge (Pet. 14-17) that the

alleged denial of their voting rights by the respondent

unions involved sufficient governmental action to require

that constitutional due process concerns be satisfied. In

our view, Only the first of these questions is an appropriate

? Petitioners apparently do not now dispute that their LMRA

claims had to be initiated within that six-month limitations period.

candidate for certiorari review, although the third ques-

tion is sufficiently similar to the “state action” question

raised in Communication Workers of America v. Beck,

cert. granted, No. 86-637 (June 1, 1987), to warrant

holding this petition for disposition in light of the Court’s

judgment in that case.

1. With respect to the limitations period question, the

court below held (Pet. App. A7-A12) that the six-month

statute of limitations applicable to unfair labor practice

charges under the NLRA applies to petitione:s’ claim

under Title I of the LMRDA that the union improperly

denied them the right to vote in the ratification referen-

dum held with respect to the proposed collective bargain-

ing agreement. While there is technically no conflict

among the circuits on this point, there is substantial confu-

sion among the circuits as to how the statute of limitations

question is to be analyzed in an LMRDA Title I case. On

balance, we believe that the question is sufficiently impor-

tant to warrant review by the Court at this time.

a. Where a federal statute does not contain an express

statute of limitations for actions brought under its civil

enforcement provisions, as is true of Title | of the

LMRDA,? this Court has said that it will “ ‘borrow’ the

most suitable statute or other rule of timeliness from some

other source” (DelCostello y. International Bhd. of

Teamsters, 462 U.S. at 158). To identify which limitations

period it will so borrow, the Court follows a two-step

decision-process: First, it determines whether “a uniform

statute of limitations is required to avoid intolerable

‘uncertainty and time-consuming litigation.’” Agency

Holding Corp. v. Malley-Duff & Assocs., Nos. 86-497 &

3 Section 102 of the LMRDA, 29 U.S.C. 412, provides that “[a]ny

person whose rights secured by the provisions of this subchapter have

been infringed by any violation of this subchapter may bring a civil ac-

tion in a district court of the United States for such relief (including in-

junctions) as may be appropriate.”

86-531 (June 22, 1987), slip op. 6 (quoting Wilson v. Gar-

cia, 471 U.S. 261, 272 (1985)). Having made that judg-

ment, it then “inquir[es] whether a federal or state statute

of limitations should be used” (Agency Holding Corp.,

slip op. 4), keeping in mind that, with respect to this in-

quiry, “ ‘resort to state law remains the norm’ ” and that a

federal statute of limitations should be borrowed only

when federal law “ ‘clearly provides a closer analogy than

available state statutes’” and “ ‘the federal policies at

stake and the practicalities of litigation make that rule a

significantly more appropropriate vehicle for interstitial

lawmaking’ ” (ibid. (quoting De/Costello v. International

Bhd. of Teamsters, 462 U.S. at 171-172)).

We are inclined to believe, in answer to the first inquiry,

that a uniform statute of limitations is appropriate for

claims under Title I of the LMRDA. Title I creates a “bill

of rights” for union members, protecting their rights to

speak, assemble, have an equal vote in union affairs, par-

ticipate in union meetings, seek union office, receive a

copy of collective bargaining agreements negotiated by the

the union, and have due process protection against unfair

union discipline. See 29 U.S.C. 411-415, 529; see generally

Local 82, Furniture Moving Drivers v. Crowley, 467 U.S.

526, 536-537 (1984); United Steelworkers v. Sadlowski,

457 U.S. 102, 109-110 (1982). As the decisions of the

federal courts of appeals evidence,’ the various types of

4 See, e.g., Reed v. United Transp. Union, 828 F.2d 1066 (4th Cir.

1987) (applying limitations period for unfair labor practice charges

under the NLRA); Doty v. Sewall, 784 F.2d 1 (ist Cir. 1986) (applying

limitations period for personal injury claims); Trotter v. International

Longshoremen’s & Warehousemen’s Union, Local 13, 704 F.2d 1141

(9th Cir. 1983) (applying limitations period for liabilities created by

statute); Dantagnan v. 1.L.A., Local 1418, 496 F.2d 400 (Sth Cir.

1974) (applying limitations period for breach of contract claims);

Sewell v. Grand Lodge of Int’l Ass’n of Machinists & Aerospace

Workers, 445 F.2d 545 (Sth Cir. 1971), cert. denied, 404 U.S. 1024

(1972) (applying limitations period for tort claims).

claims that may be brought under this “bill of rights” are

similar to a wide range of common law and statutory

causes of action. Thus, unless Title I claims are governed

by a uniform characterization for limitations period pur-

poses, there will be much unproductive litigation and con-

siderable uncertainty for both LMRDA plaintiffs and

defendants. In similar circumstances, this Court has said

that there is no reason to believe that Congress would have

sanctioned such an interpretation of the substantive

federal statute. See Wilson v. Garcia, 471 U.S. at 274-275

(42 U.S.C. 1983); Agency Holding Corp., slip op. 5-7

(RICO). Absent a compelling justification for treating cer-

tain classes of Title I claims differently, we are therefore

inclined to believe that a single characterization of all such

claims is appropriate.

Assuming that no such justification exists, the task of

identifying a uniform statute of limitations does not seem

an especially difficult one. Title | of the LMRDA is a kind

of federal “civil rights” statute “aimed at enlarged protec-

tion for members of unions paralleling certain rights

guaranteed by the Federal Constitution.” Finnegan v. Leu,

456 U.S. 431, 435 (1982). Accord, Doty v. Sewall, 784

F.2d 1, 6 (Ist Cir. 1986); Rodonich v. House Wreckers

Union, Local 95, 817 F.2d 967, 976-977 (2d Cir. 1987). In

the context of other statutes securing similar basic civil

rights against violation by state or private action, this

Court has said that the state law limitations period relating

to personal injury actions should govern. See Goddman v.

Lukens Steel Co., No. 85-1626 (June 19, 1987), slip op.

3-4 (2-year state statute of limitations governing personal

injury claims applies to claims under 42 U.S.C. 1981);

Wilson v. Garcia, 471 U.S. at 276-280 (3-year state statute

of limitations governing personal injury claims applies to

claims under 42 U.S.C. 1983). Unless there are very good

reasons to depart from this approach, it follows that the

relevant state limitations period for personal injury ac-

tions should govern claims under Title I of the LMRDA as

well.

b. Pursuant to its earlier decision in Vallone v. Local

No. 705, Int’l Bhd. of Teamsters, 775 F.2d 520, the court

below concluded (Pet. App. Al1-A12 & n.5) that the deci-

sion in DelCostello v. International Bhd. of Teamsters,

supra, requires that the six-month statute of limitations

under the NLRA be applied to LMRDA claims such as

this one, i.e., LMRDA claims that are factually related to

other allegations of improprieties by the union in

negotiating a contract or pursuing a grievance on behalf of

an employee. The question arises, therefore, whether

DelCostello mandates a separate statute of limitations for

these types of LMRDA claims. We believe that it does not

do so.

In DelCostello, the Court was presented with a hybrid

action under Section 301 of the LMRA alleging that the

employer had breached a collective bargaining agreement

and that the union had breached its duty of fair represen-

tation (462 U.S. at 163). In declining to apply a state law

statute of limitations in that instance,* the Court in

DelCostello stressed several factors that made Section

10(b) of the NLRA a “more apt [analogy] than any of the

suggested state-law parallels” that might apply to this par-

ticular LMRA claim (462 U.S. at 169 (footnote omitted)).

Specifically, the Court noted that a “hybrid” breach of

5 The State of Indiana, where this action arose, has a 2-year statute

of limitations for actions relating to persona! injuries (see Ind. Code

Ann. § 34-1-2-2 (Burns 1986)), and that statute has been applied to

other federal civil rights claims (see, e.g., Ross v. Summers, 630 F.

Supp. 1267 (N.D. Ind. 1986); Bell v. Metropolitan Sch. Dist., 582 F.

Supp. 3 (S.D. Ind. 1983)).

¢ The Court had previously borrowed from state law in setting the

appropriate limitations period for breach of contract actions by

unions against employers. See UAW vy. Hoosier Cardinal Corp., 383

U.S. 696 (1966).

contract/duty of fair representation claim under Section

301 of the LMRA will often, if not always, also amount to

an unfair labor practice under the NLRA (462 U.S. at

170); that, in such a case, the LMRA and NLRA actions

implicate an identical balance of interests —i.e., “ ‘the na-

tional interests in stable bargaining relationships and

finality of private settlements, and an employee’s interest

in setting aside what he views as an unjust settlement

under the collective bargaining system’ ” (id. at 170-171

(citation omitted)); and that substantial practical problems

weigh against applying the available state law limitations

periods for the breach of contract and unfair representa-

tion claims that are inextricably intertwined in this kind of

Section 301 action (462 U.S. at 172; see also id. at

165-169). :

Claims under Title I of the LMRDA, unlike hybrid

breach of contract/duty of fair representation actions

under Section 301 of the LMRA, will rarely amount to un-

fair labor practices under the NLRA. Title I claims allege

violations of “union democracy,” and thus are concerned

with the internal operation of the union —i.e., the relation-

ship between union members, the union, and union of-

ficers. See American Postal Workers, Local 6885 v.

American Postal Workers Union, 665 F.2d 1096, 1109 &

n.26 (D.C. Cir. 1981); Hayes v. Consolidated Service

Corp., 517 F.2d 564, 566 (Ist Cir. 1975); Abrams v. Car-

rier Corp., 434 F.2d 1234, 1250-1251 (2d Cir. 1970), cert.

denied, 401 U.S. 1009 (1971). Claims under the NLRA, on

the other hand, generally relate to matters involving an

employee’s relationship with his employer and ordinarily

do not relate to an employee’s relationship with the union

structure. See Kolinske v. Lubbers, 712 F.2d 471, 481

(D.C. Cir. 1983); Price v. VA W, 795 F.2d 1128, 1133-1135

(2d Cir. 1986). An internal union matter may form the

basis for an unfair labor practice charge only if it has a

“substantial impact” on the employee’s relationship with

his employer or impairs a policy clearly embedded in the

NLRA. See, e.g., Pattern Makers’ League of North

America v. NLRB, 473 U.S. 95, 102-107 (1985); /nterna-

tional Bhd. of Teamsters, Local 310 v. NLRB, 587 F.2d

1176, 1183 & n.31 (D.C. Cir. 1978) (citation omitted).

Even then, however, the elements of such an unfair labor

practice charge will be distinct from the elements of an

LMRDA case arising out of the same set of facts. The un-

fair labor practice charge will focus on the unequal

employment status and impairment of NLRA policies

allegedly caused by particular acts of the union, while the

LMRDA case will focus on the unequal opportunity to

participate in union affairs allegedly caused by those or

other actions of the union. Doty v. Sewall, 784 F.2d at 6-7.

Thus, while the unfair labor practice charge provisions

provided an appropriate analogy in DelCoste/io, where the

LMRA claims also resembled unfair labor practice

charges, the same cannot be said here.

For similar reasons, it is clear that LMRDA claims will

rarely, if ever, implicate the same balance of interests

presented by a hybrid breach of contract/duty of fair

representation action brought under Section 301 of the

_LMRA (or its parallel unfair labor practice charge under

the NLRA). To be sure, in some circumstances, as in the

case here, an LMRDA claimant may seek relief that af-

fects not only the union but also the finality of a collective

bargaining agreement or a private settlement reached

under it. To whatever limited extent the LMRDA claimant

may obtain such relief, and we do not think that he will be

able to do so very often or to any significant degree,’ the

7 The LMRDA governs only internal union affairs and thus

LMRDA claims will only rarely require litigation about the meaning,

conient, or enforceability of the collective bargaining agreement. Fur-

ther, LMRDA plaintiffs cannot obtain any relief that would require

the undoing or renegotiation of a settled collective bargaining agree-

ment, since most retroactive relief relating to the collective bargaining

agreement would exceed the “minor” and “ancillary” provisions of an

injunction to which the employer, who is not regulated by the

LMRDA claim, like the claims involved in De/Costello,

will implicate the national interests in stable bargaining

relationships and finality of private settlements that in-

form the choice of limitation periods under the NLRA and

the LMRA. But, even in these circumstances, the LMRDA

claim, unlike the LMRA claim involved in De/lCostello,

will also involve an allegation that the union has deprived

an individual of his statutorily-created right freely to par-

ticipate in union affairs. Congress did not purport to

weigh this interest in the balance when it concluded, in

Section 10(b) of the NLRA, that unfair labor practice

charges should be governed by a six-month statute of

limitations. Accordingly, it cannot be concluded either

that such LMRDA claims are essentially the same as those

authorized by the NLRA or that the balance of policy con-

cerns at stake is indistinguishable from the balance struck

by Section 10(b) of the NLRA.

Finally, the practical litigation problems that concerned

the Court in De/Costello and that made resort to state law

inappropriate are not applicable here. In contrast to the

very short state limitations period governing vacation of

arbitration awards considered by the Court in

DelCostello, most if not all states allow their citizens at

least one year in which to file personal injury actions. Such

a limitations period plainly provides an aggrieved union

LMRDA, could properly be subjected. See De/Costello v. Interna-

tional Bhd. of Teamsters, 462 U.S. at 168 n.17 (where employer can-

not be sued, equitable remedy such as order to arbitrate cannot be im-

posed); General Building Contractors Ass’n v. Pennsylvania, 458 U.S.

375, 399-401 (1982) (party who has not violated substantive rights of

plaintiff may only be subjected to “minor” and “ancillary” provisions

of an injunctive order). Rather, LMRDA plaintiffs will ordinarily be

limited to relief solely against the union, which may include

declaratory relief, compensatory damages, and possibly punitive

damages. See Parker v. Local Union No. 1466, United Steelworkers

of America, 642 F.2d 104 (Sth Cir. 1981); Christopher v. Safeway

Stores, Inc., 476 F. Supp. 950 (E.D. Tex. 1979), aff'd, 644 F.2d 467

(Sth Cir. 1981).

member with an adequate time period in which to attempt

to vindicate his LMRDA rights. Cf. Johnson v. Railway

Express Agency, 421 U.S. 454 (1975) (borrowing one-year

state law limitations period for enforcement of claim

under 42 U.S.C. 1981). Moreover, unlike the LMRA claim

at issue in De/Costello, which required proof of separate

unlawful actions by both the employer and union, the

LMRDA claim at issue here requires proof only of

unlawful action by the union. Thus, resort to state law will

not resit in two different limitations periods being ap-

plied to the same claim. Finally, a limitations period

longer than six months is not inappropriate here, as it was

in DelCostello, since the LMRDA claim involves an added

concern that the right of free participation in union affairs

be secured. The Court has held equally long limitations

periods appropriate for similar civil rights claims. See

Goodman v. Luken Steel Co., supra (2-year limitations

period applied to civil rights claim under 42 U.S.C. 1981);

Wilson v. Garcia, supra (3-year limitations period applied

to civil rights claim under 42 U.S.C. 1983).

In short, resorting to Section 10(b) of the NLRA rather

than to state law for a statute of limitations to govern ac-

tions brought under Title | of the LMRDA does not ap-

pear to us to be appropriate. The considerations that made

Section 10(b) the appropriate limitations period for

“hybrid” LMRA claims do not apply with the same force

to any LMRDA claim and, furthermore, there is an ap-

propriate state law analogy for a/l/ such LMRDA

claims—i.e., the limitations period governing state law

personal injury actions. While some LMRDA claims have

the potential for disrupting the stability of collective

bargaining relationships to some degree, no LMRDA

claim has the potential for producing any greater degree of

disruption than claims initiated under other federal civil

rights statutes; and the Court has held that those federal

civil rights claims should be governed by state limitation

periods relating to personal injury actions. See, e.g.,

Goodman v. Lukens Steel Co., supra. We do not see a

sound basis for reaching a different conclusion here.

c. The question remains, of course, whether the con-

trary judgment of the court below merits review by the

Court at this time. The courts of appeals are in conflict

about the appropriate statute or limitations to apply to so-

called “freestanding” Title I claims—that is, those

LMRDA claims that do not seek to set aside the results of

the collective bargaining or grievance adjustment process.

But the courts agree that LMRDA claims which are joined

with breach of contract/duty of fair representation claims

under Section 301 of the LMRA (or its analogue under the

Railway Labor Act) should be governed by the six-month

limitations period applicable to unfair labor practice

charges under the NLRA.® Since petitioners’ LMRDA

* Compare Doty v. Sewall, supra (applying state limitations period

for personal injury claims to denial of union membership to

dissident); Rodonich v. House Wreckers Union, Local 95, 817 F.2d

967 (2d Cir. 1987) (applying state limitations period for personal in-

jury claims to union discipline against members of rival political fac-

tion); with Local Union 1397 v. United Steelworkers, 748 F.2d 180 (3d

Cir. 1984) (applying six-month limitations period applicable to unfair

labor practice charges to union discipline imposed by international

union on local union leaders); Davis v. UAW, 765 F.2d 1510 (11th

Cir. 1985), cert. denied, 475 U.S. 1057 (1986) (applying six-month

limitations period applicable to unfair labor practice charges to expul-

sion of dissident union member); Reed v. United Transp. Union, 828

F.2d 1066 (4th Cir. 1987) (applying six-month limitations period ap-

plicable to unfair labor practice charges to internal union dispute

regarding reimbursement of officers’ expenses).

9 See, e.g., Adkins v. International Union of Elec. Workers, 769

F.2d 330 (6th Cir. 1985) (six-month limitations period applicable to

LMRA/LMRDA challenge to negotiation and implementation of col-

lective bargaining agreements); Vallone v. Local 705, International

Bhd. of Teamsters, supra (six-month period applicable to

LMRA/LMRDA case involving modification of collective bargaining

claims are joined with a “hybrid” LMRA ciaim, they are of

the latter variety and the decision below—holding that

they must be brought within six months of the accrual of

the underlying cause of action—does not technically con-

flict with the judgment of any other court.

Nevertheless, we are inclined to believe that the decision

below is worthy of certiorari review at this time. As ex-

plained above, we think that the courts of appeals have in-

correctly applied the six-month statute of limitations of

the NLRA to LMRDA claims—both “freestanding” and

those joined with hybrid LMRA claims. There is no reason

to believe that these courts of appeals will reconsider the

position they have taken. Nor is there reason to delay con-

sideration of the question until a more precise circuit con-

flict develops. The conflict that now exists in the circuits

with respect to whether the reasoning of De/Costello ap-

plies to “freestanding” LMRDA claims explicates the com-

peting approaches and considerations that are necessary to

a proper understanding of the statute of limitations issue

for all LMRDA claims. Moreover, statute of limitations

questions arise in LMRDA actions with some frequency

and, if our position is correct, cases are predominantly be-

ing decided under an inappropriately short limitations

period. Finally, until the Court resolves the question, a

large number of plaintiffs will have a perverse incentive to

abandon potentially timely LMRA claims in order to en-

sure that their LMRDA claims are characterized as

“freestanding” and not subjected to statute of limitations

objections. Neither the LMRA nor the LMRDA is served

by such results. Accordingly, this Court’s immediate atten-

tion seems desirable.

agreement); Linder v. Berge, 739 F.2d 686 (ist Cir. 1984) (six-month

period applicable to Railway Labor Act/LMRDA claim based on

employment-related grievance). See also Grasty v. Amalgamated

Clothing & Textile Workers Union, 828 F.2d 123 (3d Cir. 1987) (six-

month period applicable to LMRA/LMRDA claim that union

violated its constitution by fraudulently engineering strike vote and

failing to pursue grievances).

2. The question whether petitioners initiated their

LMRDA and LMRA claims within six months of the ac-

crual of their underlying cause-of-action does not,

however, merit review by this Court. The Court has

previously held that a claim that a union and an employer

have unlawfully entered into an otherwise valid collective

bargaining agreement accrues when the agreement is ex-

ecuted and the employees are notified of it. See Local

Lodge No. 1424, Int'l Ass’n of Machinists v. NLRB, 362

U.S. 411, 416-¢ 9 (1960) (Bryan Mfg.). Here, petitioners’

LMRDA claim is that the UAW used an illegal ratification

procedure prior to entering into this agreement; thus, the

decision in Bryan Mfg. is directly applicable and the court

below correctly held that petitioners’ LMRDA claim

accrued “when the collective bargaining agreement was

entered into in May 1982, unless tlie existence of the new

contract could not reasonably have been discovered until

later and was not actually discovered by plaintiffs until

later” (Pet. App. Al3). Cf. United Indep. Flight Officers

v. United Air Lines, 756 F.2d 1262, 1273 (7th Cir. 1985)

(duty of fair representation claim based on entry into col-

lective bargaining agreement accrues when contract is

signed). The remaining issue raised by petitioners —i.e.,

whether “genuine issues of fact” exist concerning whether

petitioners knew or should have known more than six

months before they filed suit of the existence of the

allegedly unlawful ratification procedure and resulting

contract approval (Pet. 20-25)—does not present either a

federal question of substantial importance or a question as

to which the courts of appeals are in conflict.

3. Nor do we believe that the third question raised by

petitioners—i.e., whether the alleged denial of voting

rights by the respondent unions in this case involved suffi-

cient governmental action to require that constitutional

-due process concerns be satisfied — merits plenary review

by the Court. As explained in our amicus curiae brief

(filed at the Court’s request) in Communication Workers

of America v. Beck, cert. granted, No. 86-637 (June 1,

1987),'° the United States does not believe that the mere

failure by Congress to prohibit a union from engaging in

or failing to engage in certain actions is a sufficient basis

upon which to find “state action.” Thus, in Beck, the

United States has argued that the Court should decline to

find state action arising Out a union’s use of agency fees

collected pursuant to a union security agreement that is

not proscribed by Section 8(a)(3) of the NLRA, 29 U.S.C.

158(a)(3). Similarly, here, the United States would argue

that no “state action” is involved when a union uses a

voting rule that arguably is not proscribed by Section 101

of the LMRDA, 29 U.S.C. 411. Indeed, the Court has

already declined to find “state action” in a closely

analogous LMRDA context. See United Steelworkers v.

Sadlowski, 457 U.S. 102, 121 n.16 (1982) (union rule

determining who may contribute to candidates in union

election is not attributable to the state and thus cannot be

challenged on First Amendment grounds). But the ques-

tion is sufficiently similar to the “state action” question in

Beck to warrant holding the petition for disposition in

light of the Court’s judgment in that case.

CONCLUSION

The petition for a writ of certiorari should be granted

limited to the question whether petitioners’ Title I

LMRDA claim is governed by the six-month limitations

period applicable to unfair labor practice charges under

the NLRA. With respect to the question whether the

alleged denial of voting rights by the unions in this case in-

tioners and respondents.

volved sufficient governmental action to require that con-

stitutional due process concerns be satisfied, the petition

for a writ of certiorari should be held pending the Court’s

decision in Communication Workers of America v. Beck,

No. 86-637.

Respectfully submitted.