Petition for Writ of Certiorari — International Woodworkers Local 3-261 v. Kuhn

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SMR THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1984

INTERNATIONAL WOODWORKERS OF

AMERICA, LOCAL 3-261,

Petitioner,

Vv.

IRENE KUHN, Personal Repre-

sentative of the Estate of

Wolfgang D. Kuhn,

Respondent.

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

ROBERT K. UDZIELA

POZZI, WILSON, ATCHISON,

O'LEARY & CONBOY,

1100 SW 6th, Suite 910

Portland, OR 97204

Telephone: (503) 226-3232

Counsel for Petitioners

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QUESTION PRESENTED FOR REVIEW

Whether this Court's decision

in DelCostello v. Teamsters, 462 US

151, 103 S Ct 281, 76 LEd2d 476

(1983) (which limits to six months

the time within which claims of

unfair representation may be brought

against labor organizations) governs

Claims which were pending in court

on the date DelCostello was decided,

TABLE OF CONTENTS

Page

Brief

Question Presented For Review.. i

Opiniones Selow i ésaceeeseesneea 1

Jurisdiction .vsevceesene 2

Statute Involved «<csereucnveeees 2

Statement of the Case ...cccccee 3

Reasons for Allowance of Writ.. 8

ATQUMONC. coccoccceseneseseneeene ll

Conclusion. ..ceesseneese eka 19

Appenadin A ..0se00ss0eneueeee 20

Appendix 8 .scvsesetucwer eee 22

Appendix C .ccsnevdéeeeeuaeeee 31

iii

TABLE OF AUTHORITIES

Cases Cited

Barina v. Gulf Trading &

Transportation Corp., 726

F2d 560 (9th Cir. 1984) ......

Chevron Oil Company v. Huson,

404 US 97, 92 S Ct 349,

30 LEd2d 296 (1971) eoseeeeeee##see

Curtis v. International Brother-

hood of Teamsters, Chauffers,

Warehousemen and Helpers of

America, Local 299, 716 F2d

366 (Gth Cir. 1983) ccescosece

DelCostello v. Teamsters,

462 US 151, 103 S Ct 281,

Te BEE2ZG 676 (1983) ccesscoveve

Edwards v. Sea-Land Services,

Inc., 720 F2d 857 (5th Cir.

Ce ea ee a a ee

Edwards v. Teamsters, Local No.

36, 719 F2d 1036 (9th Cir,

1983) cert. den. 104 S Ct 1589

8 | PPO OTIT TE TETELOCLECLeri

Ernst v. Indiana Bell Telephone,

717 F2d 1036 (7th Cir. 1983)

cert. den. 104 S Ct 707 (1984)

Page

10,11,

9,12.

14,15,

i,6,7,

8,9,10,

12,13,

14,15,

17,18

TABLE OF AUTHORITES -Continued

Cases Cited

Graves v. Smith's Transportation

Corp., 736 F2d 819 (lst Cir.

1984) e*eeee*ece#eopseee@#ee#ee#ee#e#e#e#ee¢«ee28ee#ee

Gray v. Amalgamated Meat Cutters

Local 540, 736 F2d 1055 (Sth

Cir. 1984) eeeeteoeestee#e#?e#ef8fteeeeeeet#e

Gulf Offshore Company v. Mobil

Oil Corp., 453 US 473, 101 Ss

Ct 2870, 69 LEd2d 784 (1981)..

Lincoln v. Dist. 9, IAM, 723

Jae. Gar BGR Cit. BOS2) seseons

McNaughton v. Dillingham Corp.,

722 F2d 1459 (9th Cir. 1984)..

Metz v. Tootsie Roll Industries,

Inc., 715 F2d 299 (10th Cir.

1983), cert. den. 104 S Ct

SFO CESSS co ccdctvevsencstocevves

Murray v. Branch Motor Express

Company, 723 F2d 1147 (4th Cir.

Cg ee ae a ne a ee Leen er ae

Rodman v. Hensley, 740 F2d 665,

(8th Cir. Rea é a thbe tence cue

Rogers v. Lockheed-Georgia

Company, 720 F2d 1248 (llth

Cir. 1983), reh. den. (1984)..

Page

14,15

9,11,

TABLE OF AUTHORITIES - Continued

Cases Cited

Scott v. Local 363, Inter-

national Brotherhood of

Teamsters, 725 F2d 226 (3rd

Cir. 19S Gd cccosvéese de eeueenus

Sisco v. Consolidated Rail Corp.

732 F2d 1188 (3rd Cir. 1984)

United Parcel Service Inc. Vv.

Mitchell, 451 US 56, 101

S Ct 1559, 67 LEd2d 732 (1981)

United States v. Johnson, 457

US 537, 73 LEdG2d 202, 102 S$

ie 2579 (1982) eeeeeeeersekee#eeeee#ee?e@®

United States v. Morton, 467

US---, 8l LEd2d 680, 104

S Ct —— Of ' > Pre rrrrerrers cs

Welyczko v. U.S. Air, Inc.,

733 F2d 239 (2nd Cir. 1984)...

Statutory Provisions

28 USC §1291 wocceevevessevecees

28 USC §210N1(C) cove eeveceseeoes

29 USC §185(a) weve seeveeesceces

45 USC §153 wceveeeeesecseececces

Supreme Court Rule 17(a) «sss...

Supreme Court Rule 20.4 weseeeee

Page

7,10

OPINIONS BELOW

The opinion of the Ninth Circuit

Court of Appeals in this matter is

unreported, and was rendered without

Oral argument. In itsS opinion and

ensuing judgment, the Court of Appeals

reversed the judgment of the United

States District Court of the District

of Oregon, which had dismissed Kuhn's

complaint against the IWA as untimely

filed. The opinion of the Ninth

Circuit Court of Appeals is attached

to this petition as Appendix A. The

unreported order of the United States

District Court for the District of

Oregon is attached as Appendix B.

The order of the Ninth Circuit

denying rehearing is attached as

Appendix C.

JURISDICTION

The opinion of the Ninth Circuit

Court of Appeals was dated and filed

on July 26, 1984. A timely petition

for rehearing and suggestion for

rehearing in banc was filed by

petitioner IWA. The Court of Appeals

denied rehearing on Octcber 26, 1984.

This petition is timely filed within

90 days of that date pursuant 28 USC

2101(c), as contemplated by Supreme

Court Rule 20.4.

STATUTE INVOLVED

The only statute involved in

this case is 29 USC §185(a), which

provides in pertinent part:

"(a) Suits for violation of

contracts between an employer

and a labor organization repre-

senting employees in an industry

affecting commerce as defined

in this chapter, or between

any such labor organizations,

may be brought in any district

court of the United States

having jurisdiction of the par-

ties, without respect to the

amount in controversy or with-

out regard to the citizenship

of the parties."

STATEMENT OF THE CASE

l. Statement of the Facts

The case was dismissed on the

pleadings by the District Court.

Thus, all facts are taken from plain-

tiff's complaint (CR 1, ER 1).

Wolfgang Kuhn was employed by

Weyerhaeuser Corporation, in North

Bend, Oregon as a hyster driver.

On May 4, 1981, he was terminated

for damaging company property,

spilling a load from his hyster, and

endangering a coemployee. These

problems arose during an incident

when Kuhn allegedly ran into a sup-

port post in the warehouse with his

Lift truck.

Kuhn disputed his discharge, and

IWA Local 3-261 filed a grievance on

his behalf. Although the contract

between Weyerhaeuser Company and the

IWA has a "just cause" discharge

clause, the grievance mechanism with-

in the contract does not contain a

"final and binding arbitration"

clause. The contract itself is not

before the Court; however, from

allegations in Kuhn's district court

complaint it can be inferred that if

a dispute exists between the employer

and the union at the last (fourth)

stage of the grievance procedure,

resolution is left to a strike by

the union, rather than to arbitration.

The grievance was carried to

step IV of the contract. It was at

that level, on May 19, 198i, that

Weyerhaeuser Company offered to

settle the Kuhn grievance. Under

the terms of Weyerhaeuser Company's

offer, Kuhn would be reinstated at

Weyerhaeuser, but as a utility

worker, with a wage reduction of

$.70 per hour. Weyerhaeuser's offer

was open until June 15, 1981.

Kuhn claimed to have been ad-

vised by the union that a special

meeting of the union membership

would be called and a "strike vote"

taken. Kuhn alleged this never

ocevrred, and instead the matter was

was discussed at a "regular" union

meeting, which took place on June

14, 1981, the day before Weyer-

haeuser's offer expired. Kuhn

alleged the union falsely stated at

that meeting that Kuhn had no support

among the union members. Thus, no

strike vote was taken, and Kuhn was

"forced" to accept Weyerhaeuser's

offer of reduced employment.

Twenty-three months later, on

May 4, 1983, Kuhn filed a complaint

in the United States District Court

of the District of Oregon naming

as defendants Weyerhaeuser Company

and the IWA, Local 3-261. Kuhn

conterded, among other things, that

Weyerhaeuser breached its contract

in discharging him for other than

“just cause", and that the IWA failed

to fairly represent him in his grie-

vance arising out of that discharge.

On IWA's motion, the District

Court dismissed Kuhn's action as

time barred, specifically holding

that DelCostello, 462 US 151, 103

S Ct 281, 76 LEd2d 476 (1983),

decided June 8, 1983, should apply

to Kuhn's claim (Opinion and Order

3).

As the court found IWA's argument

equally applicable to plaintiff's

claims against Weyerhaeuser, the

court on its own motion granted

judgment on the pleadings to Weyer-

hauser,.

Kuhn appealed to the Ninth

Circuit Court of Appeals. 1

The Ninth Circuit reversed the

District Court, refusing to apply

DelCostel?o retroactively. IWA

petitioned for rehearing and the

court denied the petition on

October 26, 1984.

2. Procedural History: Basis of

Federal Jurisdiction.

The procedural history of the

T’Kuhn voluntarily dismissed his claim

against Weyerhaeuser, conceding it

was time barred under United Parcel

Service v. Mitchell, 451 US 56, 67

LEd2d 732 (1981). Kuhn died in

June, 1984, and his widow was sub-

stituted as plaintiff.

claim through the District Court and

Court of Appeals is as set forth

above. Jurisdiction in the District

Court is based upon 29 USC §185.

Jurisdiction of the Court of Appeals

was conferred pursuant to 28 USC

§1291.

REASONS FOR ALLOWANCE OF WRIT

Rul2 17.1(a) permits granting a

review on writ of certiorari whe» «

Federal Court of Appeals has rendered

a decision in conflict with the

decision of another Federal Court of

Appeals on the same matter. In this

case, the Ninth Circuit Court of

Appeals stands alone in its refusal

to apply this Court's decision in

DelCostello v. Teamsters, supra, to

all cases arising out of claims of

unfair representation by labor organ-

izations.

In Edwards v. Teamsters, Local

No. 36, 719 F2d 1036 (9th Cir. 1983),

cert. den. 104 S Ct 1589 (1984), the

Ninth Circuit Court of Appeals first

decided the impact of DelCostello

on cases filed prior to the decision.

In Edwards, the Court applied

the test laid down by this Court

in Chevron Oil Company v. Huson,

404 US 97, 92 S Ct 349, 30 LEd2d

296 (1971) regarding retroactive

application of a statute of limi-

tations, and held, under Chevron

Oil Company, supra, that DelCostello

could not be applied retroactively.

In McNaughton v. Dillingham

Corporation, 722 F2d 1459 (9th Cir.

1984), another panel of the Ninth

Circuit decided that under Chevron

Oil Company v. Huson, supra, Del-

Costello v. Teamsters could not be

applied retroactively in this Circuit.

In Barina v. Gulf Trading &

Transportation Corp., 726 F2d 560

(9th Cir. 1984), a third panel of

the Ninth Circuit Court of Appeals

decided that neither United Parcel

Service Inc. v. Mitchell, 451 US 56,

101 S Ct 1559, 67 LEd2d 732 (1981)

nor DelCostello will be applied retro-

actively. The panel deciding Barina

noted the Ninth Circuit's variance

with every other Circuit across the

country which had decided the issue,

726 F2d 563 at nt. 5.

Essentially, the Ninth Circuit

said it was unimpressed with the

rule of law in all other Circuits,

and as stated by this Court; the

rule in the Ninth Circuit apparently

will be followed regardless of its

correctness. As a matter of the

exercise of the Court's power of

supervision, and to maintain con-

sistency within the Circuits on this

important issue of federal law,

certiorari should be granted. See

United States v. Morton, 467 US ---,

81 LEd2d 680, 104 S Ct --(1984).

ARGUMENT

As indicated, all other Circuit

Courts of Appeal deciding the issue

have decided contrary to the Ninth

Circuit's decision in Edwards,

McNaughton, Barina, and the case at

bar. That is, all Circuit Courts of

Appeal have applied this Court's

decision in DelCostelilo retroactively.

First Circuit: Graves v. Smith's

Transportation Corp., 736 F2d 819

(lst Cir. 1984). The First Circuit

gave weight to the precedent of other

Circuits so deciding, and applied

the Chevron Oil Company v. Huson

Standard in holding DelCostello

retroactive,

Second Circuit: Welyczko v.

U.S. Air, Inc., 733 F2d 239 (2nd

Cir. 1984). The Second Circuit

noted in this decision that the

Ninth Circuit stands alone ‘in its

refusal to apply DelCostello retro-

actively.

Third Circuit: Sisco v. Con-

solidated Rail Corp., 732 F2d 1188

(3rd Cir. 1984), applied DelCostello

retroactively to a claim under the

National Labor Railway Act (45 USC

153 et. seq.). Scott v. Local 863,

International Brotherhood of

Teamsters, 725 F2d 226 (3rd Cir.

1984), citing to Chevron Oil Company

v. Huson, supra.

Fourth Circuit: Murray v. Branch

Motor Express Company, 723 F2d 1147

(4th Cir. 1983). This specifically

holds DelCostello to be retroactive.

Fifth Circuit: Gray v. Amalga-

mated Meat Cutters Local 540, 736 F2d

1055 (Sth Cir. 1984). Edwards v.

Sea-Land Services, Inc. 720 F2d 857

(Sth Cir. 1983).

Sixth Circuit: Curtis v. Inter-

national Brotherhood of Teamsters,

Chauffers, Warehousemen and Helpers

of America, Local 299, 716 F2d 360

(6th Cir. 1983). Dicta as to retro-

activity.

Seventh Circuit: Ernst ve

Indiana Bell Telephone, 717 F2d 1036

(7th Cir. 1983), cert. den. 104 S Ct

707 (1984). Applied DelCostello

retroactively, without discussion.

Eighth Circuit: Rodman v. Hen-

Sley, 740 F2d 665 (8th Cir. 1984).

Lincoln v. Dist. 9, IAM, 723 F2d 627

(8th Cir. 1983).

Tenth Circuit: Metz v. Tootsie

Roll Industries, Inc., 715 F2d 299

(lOth Cir. 1983), cert. den. 104 5S

Ct 976 (1984).

Eleventh Circuit: Rogers v.

Lockhced-Georgia Company, 720 F2d

1248 (llth Cir. 1983), reh. den.

(1984), Applies DelCostello retro-

actively, discussing Chevron Oil

Company v. Huson,

In virtually all these cases,

the Courts of Appeal were cognizant

of the following:

(1) As a general rule, Federal

courts should apply the law in effect

at the time of their decision. Gulf

Offshore Company v. Mobil Oil Corp.,

453 US 473, 101 S Ct 2870, 69 LEd2d

784 (1981).

(2) Departure from that general

rule will occur cnly if the compell-

ing standards of Chevron Oil v. Huson,

Supra, are met.

(3) The compelling standards in

Chevron Oil v. Huson, supra, could

not be met in these cases.

(4) This Court applied its de-

cision in DelCostello retroactively,

i.e., following the general rule,

to the claimants there.

It is clear from the Ninth

Circuit's decisions in McNaughton,

Edwards, Barina and the case at bar,

that that court is concerned that

application of DelCostello would be

“unfair” if applied to litigants

relying on longer periods of limi-

tations. While in some instances

that might be true, the test in

Chevron Oil v. Huson, is not unfair-

ness, but whether the new decision

constitutes a “sharp break" from

past precedent. This Court has ident- \)

ified what it considers to be a (

"sharp break” from past precedent:

"***Such a break has been recog-

nized only when a decision ex-

plicitly overrules a past prece-

dent of this Court, see, e.g.,

Desist v. United States, 394 US

244, 22 L Ed2d 248, 89 S Ct 1030

(1969); Williams v. United States,

401 US 646, 28 L Ed2d 388, 91 S

Ct 1148 (1971), or disapproves a

practice this Court arguably has

sanctioned in prior cases, see

e.g., Goss v. Mayden, 413 US, at

673, 37 L Ed2d 873, 93 S Ct 2926

(plurality opinion); Adams v.,

Illinois" 405 US at 283, 31 L

Ed2d 202, 92 S Ct 916; Johnson Ve

New Jersey, 384 US, at 731, 16 L

Ed2d 881, 86 S Ct 9772, 8 Ohio :

Misc 324, 36 Ohio Ops 2d 439, or A

Overturns a longstanding and .

widespread practice to which this

Court has not spoken, but with a

near-unanimous body of lower court

authority has expressly approved,

wer," 73 L 842d at 215, citations

omitted. United States v. Johnson,

457 US 537, 73 LEd2d 202, 102 8S

Ct 2579 (1982).

As indicated to the Ninth Cir-

cuit in petitioner's petition for

rehearing, none of those examples

apply here. Ail other Circuit Courts

have understood that DelCostello

did not overrule any prior precedent

or make a “clear break" with prior

decisions. Thus, there could be no

justifiable reliance by any plaintiff

upon decisions in this or other

Circuits which would prohibit appli-

cation of the general rule of retro-

active app_ication.

While this case is facially

simple, it is of utmost importance

to labor organizations throughout

the Ninth Circuit. As the Ninth

Circuit stands alone now, labor

organizations are subjected to

liability for actions caused by

employers, long after the employers

themselves can be required to respond

for their improper actions. In this

Circuit, and this Circuit alone, an

employer is permitted the benefit of

the rule in DelCostello, while a

labor organization, whose liability

is derivative at best, is potentially

liable long afer an employer's lia-

bility has been extinguished. Given

the underlying reasons for applica-

tion of the six month limitation

imposed by DelCostello (hybrid

nature of the action, concurrent

liability of union and employer,

rapid disposition of labor disputes),

it appears without any base in logic

to permit differing lengths of lia-

bility to continue. This case may

be appropriate for summary reversal.

CONCLUSION

For the reasons stated in this

writ, the petition should oe granted.

Respectfully submitted,

ROBERT K. UDZIELA

POZZI, WILSON, ATCHISON,

O'LEARY & CONBOY

Counsel for Petitioner

APPENDIX A

DO NOT PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

—_——

IRENE KUHN, Personal Repre-

sentative of the estate of

Wolfgang D. Kuhn,

Plaintiff-Appellant, No. 84-3514

D.C. NO. CV

83-6172

MEMORANDUM

vs.

INTERNATIONAL WOOD-

WORKERS OF AMERICA,

LOCAL 3-3261,

Defendant-Appellee.

mee ewe eee i

Submitted - May 24, 1984*

Decided - July 26, 1984

Appeal from the United States

District Court

for the District of Oregon

Robert C. Belloni, District Judge,

Presiding

Before: BROWNING, Chief Judge,

WALLACE and POOLE,

Circuit Judges

*The panel is unanimously of the

opinion that oral argument is not re-

quired in this case. Fed R. Civ. P.34(a)

Kuhn appeals from the district

court's grant of judgment on the

pleadings to the International Wood-

workers of America, Local 3, 261, on

his breach of duty of fair repre-

sentation claim. He contends that

the district court erred by holding

that his action was time-barred by

the Supreme Court's decision in

DelCostello v. Teamsters, -- U.S.

--, 103 S. Ct. 2281 (1983), which the

district judge concluded, should be

applied retroactively. We reverse,

DelCostello does not apply retroac-

tively to claims for breach of duty

of fair representation. McNaughton

v. Dillingham Corp., 722 F.2d 1459

(9th Cir. 1984). The appropriate

Statute of limitations is Oregon's

two-year statute for professional

malpractice actions. Id., Under Or.

Rev. Stat. § 12.110 (1983), Kuhn's

action was timely filed.

REVERSED. **

** The panel has concluded that the

issues presented by this appeal do

not meet the standards set by Rule 21

of the Rules of this Court for disposi-

tion by written opinion. Accordingly,

it is ordered that disposition be by

memorandum, forgoing publication in

the Federal Reporter, and that this

memorandum may not be cited to or by

the courts of this circuit save as

provided in Rule 2l(c).

A/O, USC 8-8-84--T1344--600

APPENDIX B

US District Court

District of Oregon

FILED AND ENTERED

November 16, 1983

/s/ DAN MARSH

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

WOLFGANG D. KUHN,

Civil No.

83-6172-C

Plaintiff,

JUDGMENT

WEYERHAEUSER COM-

PANY, a Washington

corporation; INTER- )

NATIONAL WOODWORKERS )

OF AMERICA, LOCAL )

3-261,

)

Ve )

)

Defendants. )

This action is dismissed.

Dated: November 16, 1983.

Robert M. Christ, Clerk

By /s/ Dan Marsh

Deputy

423

US District Court

District of Oregon

FILED AND ENTERED

November 16, 1983

/s/ DAN MARSH

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

WOLFGANG D. KUHN,

)

Plaintiff, ) Civil No.

) 83-6172-C

Vv. )

) ORDER

WEYERHAEUSER COM- )

PANY, a Washington )

corporation; INTER- )

NATIONAL WOODWORKERS )

OF AMERICA, LOCAL )

)

Defendants. )

Plaintiff brings this action

pursuant to Section 301 of the Labor-

Management Act, 29 U.S.C. § 185 et seq.

On May 4, 1981, plaintiff was dis-

charged by defendant Weyerhaeuser Com-

pany after a hyster accident which

allegedly endangered another employee's

life. Plaintiff filed a grievance

with his union, defendant Inter-

national Woodworkers of America, and

the matter proceeded to arbitration

under the applicable collective bar-

gaining agreement. At the conclusion

of the grievance proceeding, Weyer-

hauser offered plaintiff another

position at the company, pending

plaintiff's acceptance of the offer

by June 15, 1981. Although plaintiff

did have hopes the union would call

a strike vote, the strike did not

occur and plaitniff did accept the

offer. He filed the present action

on May 4, 1983.

The Union moved for judgment on

the pleadings, on the ground that

plaintiff's action is time-barred by

DelCostello v. International Brother-

hood of Teamsters, --- US ---, 103 S

Ct 2281 (1983). In that case, the

Supreme Court held that the statute

of limitations applicable to Section

301 actions is not the analogous state

Statute, but Section 10(b) of the

National Labor Relations Act, 29 USC

§ 160(b). Noting that labor grie-

vance procedures are usually governed

by the short limitations period appli-

cable to arbitration awards (e.g.,

ninety days in DelCostello, twenty

days in ORS 33.310), the Supreme Court

balanced the interests at stake and

found the six-months period in Sec-

tion 10(b) best suited to the kind

of actions brought under Section 30l.

It commented that the arbitration

Statutes of limitations seemed too

short, yet the other possibly appli-

cable period -- tort, contract, and

the like -- seemed too long. The

Court did not state whether Del-

Costello should be applied retro-

actively.

The union has moved for judgment

on the pleadings based on DelCostello.

Plaintiff filed his action a month

before the Supreme Court decided Del-

Costello, and he contends DelCostello

should not be applied retroactively.

He proposes as the applicable period

various limitations periods of two

or six years, dpending on characteri-

zation of his claims as tort, action

based on a statute, or contract (see

ORS 12.110, 12.080(2), 12.080(1),

respectively). Plaintiff has over-

looked, however, the arbitration

limitations period of twenty days,

ORS 33.310. That statute provides

that an action based on an arbitration

award must be filed within twenty days

of final judgment, subject to certain

exceptions of fraud, partiality, or

other misconduct and error. While

plaintiff charges the union with laxness

and failure to call the promised strike

vote, he does not frame his allegations

to place his action within cone of the

exceptions of ORS 33.310. The pleadings

are also vague on the finalness of the

Weyerhauser offer. Plaintiff has not

provided a copy of the collective bar-

gaining agreement, "since defendants

already have a copy," and so I cannot

determined if "Step IV of the grievance

procedure” constituted a final arbi-

tration of the dispute. If it did not,

plaintiff's acceptance of the compro-

mise offer might constitute a final

arbitration under ORS 33.310. While

the pleadings do not clearly show that

plaintiff's action is time-barred by

ORS 33.310, they do raise a signifi-

cant question. The most likely choice

is not, as plaintiff contends, between

the six months and twenty days.

I find, howver, that DelCostello

should be applied retroactively. The

Supreme Court specifically weighed the

policy interests at stake in labor-

dispute actions, and found that the

short statutes of limitations usually

applicable by analogy to state law did

not suit the purpose of the Labor-

Management Act. Neither did the longer

statutory periods applicable from state

actions in malpractice, other tort, or

contract. Federal law provided a six-

months period in an analogous labor

action, and the Supreme Court adopted

that compromise period.

This case is similar to DelCostello

in that it, too, involves an extremely

short limitation period of twenty

days and a labor grievance actionable

under both federal and state law.

Plaintiff accepted Weyerhauser's com-

promise offer nearly two years before

he filed his action. The policies

behind the Labor-Management Relations

Act did not contemplate that labor

grievances be pending for years, yet

do not provide that an employee's

rights be cut off in twenty days. As

in DelCostelilo, the six-months period

in Section 10(b) is a compromise limi-

tations period that best suits the

purposes of the Act. I find, there-

fore, that DelCostello does apply to

the present case, and that plaintiff's

claims are therefore time-barred.

Defendant Union's motion for judg-

ment on the pleadings is GRANTED.

Since defendant's arguments are equally

applicable to plaintiff's claim

against Weyerhauser, I grant judgment

on the pleadings to Weyerhauser on the

court's own motion. This action is

dismissed in its entirety.

Dated this 15th day of November,

1983.

/s/ Robert C. Belloni

UNITED STATES DISTRICT JUDGE

APPENDIX C

FILED

October 26, 1984

PHILLIP B. WINBERRY

Clerk, US COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IRENE KUHN, Personal

Representative of the

Estate of Wolfgang D.

Plaintiff-Appellant D.C.No.

° CV 83-6172

ORDER

)

Vv. )

)

INTERNATIONAL WOOD- )

WORKERS OF AMERICA, )

LOCAL 3-3261, )

)

Defendant-Appellee, )

Appeal from the United States

District Court of Oregon

BEFORE: BROWNING, Chief Judge, and

WALLACE and POOLE, Circuit Judges

The panel as constituted above has

voted to deny the petition for rehearing

and to reject the suggestion of rehearing

en banc.

The full court has been advised

of the suggestion for rehearing en banc,

and no judge of the court has requested

a vote on the suggestion for rehearing

en banc. Fed. R. App. P. 35(b).

The petition for rehearing is

denied and the suggestion for rehearing

en banc is rejected.

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