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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 470 U.S. 1053

## Text

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CLERK

Supreme Ceurt, U.S.

Py TiLeD
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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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i
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,

ii

TABLE OF CONTENTS

Page
Brief

Question Presented For Review.. i
Opiniones Selow i ésaceeeseesneea 1
Jurisdiction .vsevceesene 2
Statute Involved « 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

12

12

7,10

16

ll

2

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.

2
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

3

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

4

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

5
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

6

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).

7

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.

8

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.

9

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

10
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

ll
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

12
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.

13
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.

14

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.,

Kt

15
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

16
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).

17
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

18

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.

19
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

20
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)

21

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

22
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

24

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

25
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

26
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

27
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

28
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

29
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

30
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

31
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.

32

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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