Petition for Writ of Certiorari — Welyczko v. U. S. Air, Inc.

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Supreme Court of the United States... .-.<

October Term 1984

IN THE

No.

ROMAN WELYCZKO,

Petitioner,

-against-

U.S. AIR, INC. and THOMAS POMEROY as

CHAIRMAN OF THE INTERNATIONA”

ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS, LOCAL NO. 75,

DISTRICT NO. 141,

Respondents

PETITIONER FOR WRIT OF CERTIORARI

TO THE U.S. COURT OF APPEALS

FOR THE SECOND CIRCUIT

Respectfully submitted by:

LOMBARDI, REINHARD, WALSH &

HARRISON, P.C.

Attorneys for Appellant

Office and P.O. Address

41 State Street, Suite 405

Albany, New York 12207

Telephone: (518) 449-8411

MARTIN WEINSTEIN, A member of

this Bar, on behalf of

RICHARD P. WALSH, JR. and ~ RO

MICHAEL T. MC GARRY, ESQS. KU\\

seepetaiiens

ae

-1. (a) Questions presented for

review

In DelCostello v. International

Brotherhood of Teamsters, et al.,

US__, 103, S.Ct. 2281, 76 L.Ed.2d 476

(1983), the United States Supreme

Court announced a new, uniform,

federal limitations period governing

the hybrid cause of action based on an

employer's wrongful discharge and a

union's breach of its duty of fair

representation.

Is this new limitations period to

be applied retroactively or is there a

presumption of prospective application

only?

If the new limitations period is

to be applied retroactively, is it to

be applied retroactively in each and

every instance?

If not, what bases are to be used

in determining whether or not to apply

said limitations period retroactively

in given situations?

Should the test for retroactive

application of this new law be the

test announced by the Supreme Court in

Chevron Oil Co. v. Huson, 404 US 97,

92 S.Ct. 349, 30 L.Ed.2d 296 (1971)?

If so, does not the predicament

of the instant petitioner, Roman

Welyczko, satisfy the Chevron test to

the extent that the new limitations

period should not, as to his

circumstances, be retroactively

applied?

In 1975 and within the Second

Circuit, did Roman Welyczko have a

right to rely on a limitations period

for the pertinent causes of action?

If so, what limitations period did he

have a right to rely on?

If not, why did he not have a

right to rely on a limitations period?

If he had such a right but lost it,

why and at what point did he lose it?

Regarding the Second Circuit

decision now sought to be appealed,

why was the Chevron test not applied

to petitioner's case?

In view of the fact that the

appeal to the Second Circuit emanated

fron the Northern District Court's

granting summary judgment in favor of

defendants’ motions, did the Second

Circuit erroneously and unfairly rely

on the facts as stated by the

defendants instead of relying on the

facts as presented by the plaintiff?

Regarding the instant petitioner,

Roman Welyczko, is it not true that:

-in 1975 he had a right to rely

on the six-year limitations

period as established by the

Second Circuit in 1970 in Abrams

v. Carrier Corporation, 434 F2d

1234, cert. den. 401 US 1009, 91

S.Ct. 1253, 28 L.Ed. 2d 454?

-as to Welyczko's situation, the

new law announced in 1983 was

unforeseeable?

“no law will be furthered by the

retroactive application of

DelCostello in this instance;

rather, the substantive laws will

be retarded by the retroactivity?

-petitioner had every right to

rely on his union's assurances

that it would request the special

hearing on his behalf and later,

on his union's assurances that it

had filed the request on his

behalf? As such, is it not true

that, through no fault of his

own, the federal courts represent

petitioner's only forum for

redress?

“retroactive application of the

new and shorter limitations

period in this case would be

unfair and unjust?

-in view of the foregoing,

petitioner satisfies the Chevron

test so that DelCostello should

not be retroactively applied in

this particular case?

If petitioner had a right to rely

on the six-year limitations period,

did not his right to his causes of

action become a vested right when he

timely sued thereunder? As such, are

questions of constitutional due

process raised by the retroactive

application of the new and shorter

limitations period, which new

limitations period did not become law

until some two years after petitioner

had commenced his action?

Should the United States Supreme

Court resolve the conflict that now

exists among the various Circuit

Courts regarding the retroactive

applicz:tion of DelCostello?

|

If if does not resolve said

|

conflicts, is uniformity possible

among the Circuit Courts?

sate

Was not uniformity a desired goal

in the DelCostello decision?

(b) Plaintiff - Roman Welyczko

Defendants - U.S. Air, Inc.

- Thomas Pomeroy

as Chairman of

the Interna-

tional Associa-

tion of

Machinists and

Aerospace Wor-

kers, Local No.

75, District No.

141

(c) Table of Contents Page

Statement of Jurisdiction i,ii

Statutes ii

Statement of Facts 1-7

Reasons for the Writ 7-16

Appendix 17-38

Table of Authorities Page

Abrams v. Carrier Corpora-

tion, 434 F2d 1234, vert. den.

421 US 1009, 91 S.Ct. 1253, 28

weit Ga 545 (1971) supra

Chevron Oil Co. v. Huson

404 US 97, 92 S.Ct. 349, 30 L.

Ed.2d 296 (1971) throughout

Curtis v. Int'l

Brotherhood of Teamsters,

716 F2d 360 (6th Cir. 1983) (per

curiam) 8

DelCostello v. International

Brotherhood of Teamsters, et al.,

US , 103 S. Ct. 2281, 76

L.Ed.2d 476 (1983) throughout

Edwards v. Sea-Land

Service, Inc., 720 F.2d

857 (Sth Cir. 1983) 8

Edwards v. Teamsters

Local No. 36, 719 F.2d 1036

(9th Cir. 1983), cert. den.

104 S.Ct. 1599 (1984) 8

Hand v. Int'l

Chemical Workers Union,

712 F.2d 1350 (llth Cir.

1983) 8

Lincoln v. District

9 of the Int'l Ass'n of

Machinists and Aerospace

‘Workers, 723 F.2d 627

(8th Cir. 1983) 8

Murray v. Branch

Motor Express Co., 723

F.2d 1146 (4th Cir.

1983) 8

Perez v. Dana Corp.

Parish Frame Division,

718 F.2d 581 (3rd Cir.

1983) 7

Storck v. Int'l

Brotherhood of Teamsters,

Local Union No. 600, 712

F.2d 1194 (7th Cir. 1983)

(per curiam) 8

Table of statutes Page

Section 301 Labor Rela-

tions Act, 29U.S.C. Section

185 (a) ii

Railway Labor Act, 45

U.S.C. Section 141 et seq. ii

(ad) Decision of Northern

District, November 1, 1983 unreported

decision of Secton Circuit Court of

Appeals, Aprii 25, 1984 (cite not

(f)

(i) Date of Judgment and

entry - April 25, 1984.

(ii) Date of order denying

rehearing - June 8, 1984.

(iii) Not applicable.

(iv) Section 301 Labor

Management Relations Act, 29

U.S.C. Section 185(a).

Section 301 Labor Management

Relations Act, 29 U.S.C. Section

185 (a).

Railway Labor ACt, 45 U.S.C.

Section 141 et seq.

the U.S.

4th and 14th Amendments of

Constitution.

ii

Petitioner, Martin Weinstein,

duly admitted to practice law in this

Court, as and for a petition on behalf

of Roman Welyczko and his counsel,

Lombardi, Reinhard, Walsh & Harrison,

P.C., and upon informaticn and belief,

Goes hereby allege:

(g) Statement of facts

In 1975 petitioner was a

machinist employed by Allegheny

Airlines, now U.S. Air, Inc. In that

year petitioner sustained a serious

accidental injury and was awaiting

major hip replacement surgery pending

resolution of a serious infection

which was complicating the matter.

On May 5, 1975, petitioner was

granted a ninety-day medical leave of

absence pursuant to Article 10 of the

collective bargaining agreement

between his employer, U.S. Air, and

his union, Local No. 75, District 141

of the International Association of

Machinists and Aerospace Workers.

On or about June 9, 1975,

petitioner was notified by his

employer that an extension of his

medical leave would require an

additional request within the ninety

days.

On or abut July 31, 1975,

petitioner sent the employer the

additional request for an extension of

his medical leave. Having received no

resronse by August 3, 1975, petitioner

sent a telegram to his employer

repeating the request for an

extension.

On or about August 6, 1975, the

employer acknowledged receipt of said

request, and advised petitioner that

approval for extended medical leave

would require corroboration from a

doctor's office.

Petitioner's doctor was away on

vacation when petitioner attempted to

secure the necessary letter. The

doctor's secretary, knowing that the

petitioner's medical condition had not

changed and assuming that any letter

would have to include the doctor's

signature, sent to the employer a copy

of the doctor's report dated May 5,

1975, in which the doctor had

recommended an indefinite medical

leave of absence.

Thereafter, on or about August

27, 1975, and without any demand to

return to work, petitioner received

notice that his employment had been

terminated as of August 5, i975.

On or before September 1, 1975,

petitioner made a request to his union

to arrange a special hearing pursuant

to Article 14, Section D of the

collective bargaining agreement. This

Section permitted a special hearing to

be requested by either the employee,

or by the union on behalf of the

employee.

Both before and after the passing

of the time limit for the filing of

the request for the special hearing,

the union made repeated assurances to

petitioner that it would institute,

and that it had instituted, the

request on his behalf.

Had the Union informed petitioner

that it would not process the matter,

petitioner would have had the right to

process the request himself on his own

behalf.

The availability of the

collectively-bargained grievance

process thus being foreclosed to him

by the union's failure to timely file,

petitioner sought his last resort for

redress in the court system by

commencing this action in the Supreme

Court of the State of New York on or

about March 13, 1981.

On or about June 18, 1981,

defendants removed the action to the

United States District Court, Northern

District of New York.

The basis of federal court

jurisdiction is that the instant

causes of action, wrongful discharge

by an employer and breach of the duty

of fair representation by a union, are

federal causes of action. This is a

hybrid claim under Section 301 of the

Labor Management Relations Act, 29

U.S.C. Section 185 (a).

In 1983, after the Supreme

Court's DelCostello decision,

defendants moved the Northern District

Court for summary judgment based on

the defense of plaintiff's failure to

timely file within the new limitations

period.

In ruling from the bench on

November 1, 1983, the Honorable Howard

G. Munson, Chief Judge, granted |

defendants' motions.

An appeal to the United States

Court of Appeals for the Second

Circuit resulted in affirmance in an

opinion dated April 25, 1984.

Subsequently, a petition seeking

rehearing was denied by order dated

June 8, 1984.

(h) Not applicable.

(i) Section 301 Labor Mangement

Relations Act, 29 U.S.C. Section

18S(a); federal case law establishing

the hybrid claims as a federal cause

of action involving concurrent

jurisdictions in state and federal

courts.

(j) Reasons to allow the writ

The Ninth Circuit refuses to

apply DelCostello retroactively.

Edwards v. Teamsters Local No. 36, 719

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

denied, 104 S.Ct. 1599 (1984).

Other circuits favor

retroactivity: Perez v. Dana Corp.,

~~

Parish Frame Division, 718 F.2d 581

(3rd Cir. 1983); Murray v. Branch

Motor Express Co., 723 F.2d 1146 (4th

Cir. 1983); Edwards v.

Sea-Land Service, Inc., 720 F.2d 857

(Sth Cir. 1983); Curtis v. Int'l

Brotherhood of Teamsters, Local 299,

716 F.2d 360 (6th Cir. 1983) (per

curiam) (dictum); Storck v. Int'l

Brotherhocd of Teamsters, Local Union

No. 600, 712 F.2d 1194 (7th Cir. 1983)

(per curiam); Lincoln v. District 9 of

the Int'l Ass'n ot Machinists and

Aerospace Workers, 723 F.2d 627 (8th

Cir. 1983); Hand v. Int‘l Chemical

Workers Union, 712 F.2€ 1350 (llth

Cir. 1983) (per curiam).

Thus the circuits were in

conflict even prior to the Second

Circuit's decision below. Prior to

said decision, however, all the

circuits applied the Chevron test in

determining the retroactivity

question.

Now because the Second Circuit

has declined even to apply the Chevron

test, the circuits are in further

conflict.

If the Second Circuit is

presuming retroactive application of

DelCostello in each and every

instance, then it is in conflict with

those circuits which use the Chevron

test to make the retroactivity

determination.

DelCostello represents new law

with no explicit directive regarding

the retroactivity question. As such,

the Chevron test must be applied to

each plaintiff's particular

circumstance to determine whether, as

to each given plaintiff, retroactive

application of the new and shorter

limitations period is appropriate and

fair.

The retroactive application of a

new and shorter limitations period is

inherently repugnant to this system of

jurisprudence, bearing the obvious

seeds of potential abuse. The

critical prong of the Chevron test

should be whether the federal courts

represent the plaintiff's first and

only forum. In all the other

aforementioned circuits, the

plaintiffs all enjoyed some formal

resolution of their grievances within

the collective bargaining grievance

process. The only resolution of the

instant petitioner's grievance

10

occurred when the union inexplicably

failed to timely file the grievance on

his behalf, thus foreclosing to

petitioner the use of the labor forum.

Access to the federal forum in this

circumstance should not lightly be

foreclosed by the retroactive

application of the new six-months

limitations period, which new

limitations period was not revealed to

the petitioner until some two years

after he timely filed suit.

As a note, had the Chevron test

been applied to DelCostello,

DelCostello's situation would probably

have warranted retroactive application

anyway, as that plaintiff would net

have satisfied the third prong of the

test, having already enjoyed a

11

resolution of his grievance within the

labor forum.

Legislatures which enact laws

pronouncing new and shorter

limitations periods are quick to

protect existing causes of action

which had been timely sued under the

previous limitations period, and even

those which arose prior to the new law

and which had not yet been commenced.

Simply because a federal court, albeit

the Supreme Court, has engaged in

judicial legislation, should not

change this legislative precept

involving the protection of existing

causes of action already commenced.

What assurances are there, otherwise,

that any limitations period can be

relied on?

12

Respectfully, the Supreme Court

should clarify the retroactivity

debate regarding DelCostello.

As mentioned, the circuits are in

disagreement as to whether or not to

apply the Chevron test.

Additionally, the circuits

applying the Chevron test are in

cdisagreement as to how the test should

be applied.

Some circuits point to the

developing caselaw leading up to

DelCostello and say that DelCostello

is not “new law" under Chevron (the

first prong of the test.) Other

circuits assess the situation of the

individual plaintiff to determine

whether or not DelCostello represents

"new law" under Chevron as to that

plaintiff, by determining whether the

13

plaintiff could have reasonably relied

on the limitations period he sued

under, or whether the plaintiff would

be held to have foreseen the

DelCostello decision. Different

plaintiffs will be entitled to

different degrees of reliance upon

prior limitation periods.

Regarding the second prong of the

Chevron test, i.e. whether the

retroactive application of the new law

will further or retard its operation,

some circuits look to the new

limitations period while others look

to the underlying substantive causes

of action.

The third prong of the Chevron

test asks the question whether or not

retroactive application in a given

case would be unfair or unjust,

14

emphasizing the unfairness if the

federal courts represent to a given

plaintiff his only forum for redress.

When the federai courts represent

a plaintiff's only forum in these

particular situations, retroactive

application of DelCostello effectively

serves to deny to a plaintiff any

forum at all, thereby denying the

right of the plaintiff to sue his

causes of action at all. The Supreme

Court, respectfully, should determine

whether a plaintiff who timely sued

under a previous limitations period

had secured a vested right to his

causes of action, particularly when,

through no fault of his own, he did

not have access to the grievance

procedures within the iabor forum.

Are there implications of a violation

15

of constitutional due process should

Walyczko, through no fault of his own,

be denied any forum at all?

16

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

ROMAN WELYCZKO,

vs. 81-CV-631

U.S. AIR, INC, and THOMAS POMEROY as

CHAIRMAN of THE INTERNATIONAL

ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS, LOCAL NO. 75 and

DISTRICT NO. 141.

TRANSCRIPT OF DECISION OF MOTION

in the above-entitled matter by Hon.

Howard G. Munson, Chief United States

District Judge for the Northern

District of New York on the lst day of

November 1983 at the United Sates

Courthouse, Albany, New York.

17

3 ha PAO 1G Wa RECT MOR cs Sot

APPEARANCES:

LOMBARDI, REINHARD, WALSH &

HARRISON, ESQS.

Schenectady, New York

Attorneys for Plaintiff

BY: MICHAEL T. MC GARRY, ESQ.

WHITEMAN, OSTERMAN & HANNA, ESQS.

Attorneys for defendant, U.S. Air

BY: MELVIN OSTERMAN, ESQ.

CONSTANCE ANGELINI, Attorney for

Thomas Pomeroy and the

International Association of

Machinists and Aerospace

Workers, Local No. 75 and

District No. 14l

18

THE COURT: All right. Well, I

have read the Pitts versus Frito-Lay

case. I think that that is a little

irrelevant of this situation for two

reasons. Number one, it came out

before DelCostello, and number two,

there is no question but what in that

case the Sixth Circuit applied the

pre-existing law in the Sixth Circuit,

and it appears to me that that case is

in opposite to the Second Circuit,

because in the Sixth Circuit the law

was settled, and in the Second Circuit

I'm not certain that it was. If fact,

I think it was not.

Ana so it appears to me that the

Chevron test cannot be satisfied in

this circuit.

I realize that under some

circumstances this causes a problem,

19

but it seems to me that the Rule 15

motion to amend the complaint should

be granted and the motion for summary

judgment by the plaintiff should be

granted, and I do so at this time.

20

CERTIFICATION

I, George T. McGloine, Official

Court Reporter for the United States

District Court, in and for the

Northern District of New York, do

certify this to be a true and accurate

transcript of the stenographic record

of the foregoing, taken at the time

and place noted in the heading hereof,

to the best of my knowledge and

belief.

George T, McGloine

Office Court Reporter

United States District Court

Northern District of New York

Albany, New York

January ll, 1984

21

UNITED STATES [OURT OF APPEALS

For the Second Circuit

No. 999-August Term 1983

(Argued March 30, 1984

Decided April 25, 1984)

Docket No. 83-7976

+

ROMAN WELYCZKO,

Plaintiff-Appellant,

-against-

U.S. AIR, INC. and THOMAS POMEROY as

CHAIRMAN of the INTERNATIONAL

ASSOCIATION OF MACHINISTS AND

AEROSPAC® WORKERS, Local No. 75,

District 14l,

De fendants-Appellees.

+

BEFORE:

KAUFMAN, KEARSE, AND PIERCE,

Circuit Judges

*

Appeal from a Judgment of the

United States District Court for the

22

91 RADY a GORD leg AO lene aeOP BI Fu WES PR i I ek Cac alll u iM OSMD pisces IR 2 iyi hn en cells eae . bas

atic it ‘Sint ea Peso. ies Piss

Northern District of New York, Howard

G. Munson, Chief Judge, granting

appellees’ motions to dismiss

appellant's complaint under Section 2

of the Railway Labor Act, 45 U.S.C.

Section 152, as barred by the statute

of limitations.

Affirmed.

MICHAEL T. MC GARRY, Albany, N.Y.

(Lombardi, Reinhard, Walsh &

Harrison, Albany, N.Y., of

Counsel), for

Plaintiff-Appellant

MELVIN H. OSTERMAN, JR., Albany,

N.Y., (Whiteman, Osterman &

Hanna, Albany, N.Y., of

Counsel), for Defendant-

Appellee, U.S. Air, Inc.

PETER P. PARAVATI, Utica, N.Y.

(Constance J. Angelini, of

Counsel), for Defendant-

Appellee, Thomas Pomeroy.

*

KAUFMAN, Circuit Judge:

23

i ett ae it i Bi hs Cael RO lly i Se alah PT tiny Pa sail a il — a =

Roman Welyczko appeals from the

dismissal cf his hybrid claim against

his employer for wrongful discharge,

and against his union for breach of

its duty of fair representation. The

district judge based his action upon

the Supreme Court's decision in

DelCostello v. International

Brotherhood of Teamsters, 7.8. P

103 S.Ct. 2281 (1983), which

established a six-month statue of

limitations for claims under Section

301 of the Labor Management Relations

Act ("LMRA"), 29 U.S.C. Section

185(a). We hold that the DelCostello

decision has both retroactive and

prospective application, and therefore

affirm the dismissal of Welyczko's

complaint.

24

I

We shall briefly review the

facts. The parties have agreed tha:

Welyczko was an employee of U.S. Air,

Inc. ("U.S. Air") and that the terms

and conditions of his employment were

governed by a collective bargaining

agreement between U.S. Air and the

International Association of

Machinists and Aerospace Workers

("IAM"). Welyczko was granted a 90-day

medical leave of absence on May 5,

1975. On or about July 31 of that

year, he wrote to his employer

requesting an extension of leave. He

reiterated that request by telegram cn

August 3. Approximately three days

later, Welyczko received a letter from

a U.S. Air executive, notifying him

that his request for extended leave

25

would be considered only upon receipt

of corroboration from a physician that

additional leave was necessary.

Because his doctor was then on

vacation, Welyczko decided to forward

to U.S. Air a second copy of the

physician's note, dated May 5. This

document had accompanied his original

application for leave.

U.S. Air refused to accept the

copy as adequate substantiation.

Accordingly, when Welyczko did not

return to work, the company terminated

his employment on august 26, 1975.

This discharge was made retroactive to

August 5, the day his authorized leave

expired. Welyczko responded by

requesting an officer of the IAM to

arrange a special hearing on his

discharge, pursuant to the collective

26

Te

bargaining agreement. The IAM

contradicts this by replying that

Welyczko was advised that he himself

would have to make a written request

for such hearing. In any event, the

hearing was never held, and the

discharge action became final.

The instant suit was commenced in

New York State Supreme Court on March

5, 1981, and was subsequently removed

to federal court. After DeCostello was

decided, appellees moved for summary

judgment asserting that the statute of

limitations adopted in that case

should apply retroactively to

Welyczko's cause of action, which

accrued in 1975. On November 1, 1983,

in a ruling from the bench, Chief

Judge Munson granted the motion.

27

————————— ee

Welyczko appeals.

II

In DelCostello, the Supreme Court

decided that a uniform federal statute

of limitations showld apply to claims

under Section 301 of the LMRA. In the

absence of an expressly applicable

federal limitations period, the Court

acknowledged, the “most closely

analogous statute of limitations under

state law" would normally govern. 103

S.Ct. at 2287. The Court concluded,

however, that the “federal policies at

stake and the practicalities of

litigation make (federal law) a

significantly more appropriate vehicle

for interstitial lawmaking"” in this

instance. Id. at 2294. It therefore

held that the six-month time limit on

unfair labor practice complaints under

28

Section 10(b) of the National Labor

Relations Act applied to Section 301

claims as well.

Welyczko's claim must be

construed as arising under the Railway

Labor Act, 45 U.S.C. Section 151 et

seq., which govern air carriers in

lieu of the LMRA. See 29 U.S.C.

Sections 142, 152; 45 U.S.C. Section

181. We agree with the Ninth Circuit,

however, that this distinction is

“without import." Barina v. Gulf

Trading and Transportation Co., 726

F.2d 560,563 n.6 (9th Cir. 1984). The

same policies which led the Supreme

Court to apply a federal statute of

limitations to claims under Section

301 of the Labor Management Relations

Act apply with equal force to

Tee ee

substantively identical claims under

the Railway Labor Act.

We have already applied the

DelCostello rule retroactively,

although the issue was not

specifically discussed. Assad v.

Mount Sinai Hospital, 703 F.2d 36 (2d

Cir.), vacated, 104 S.Ct. 54 (1983),

on remand, 725 F.2d 837 (1984). Our

action there was consistent with the

"general rule of long standing” that

"judicial precedents normally have

retroactive as well as prospective

effect." National Association of

Broadcasters v. FCC, 554 F2d 1118,

1130 (D.C. Cir. 1976), quoted in

Kremer v. Chemical Construction

Corp., 623 F.2d 786,788 (2d Cir.

1980), aff'd, 456 U.S. 461 (1982). All

but one of the circuits considering

30

aie

the retroactivity of DelCostello have

reached the same result. Perez v.

Dana Corp., Parish Frame Division.,

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

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

1146 (4th Cir. 1983); Edwards v.

Sea-Land Service, Inc., 720 F.2d 857

(Sth Cir. 1983); Curtis v. Int'l

Brotherhood of Teamsters, Local 299,

716 F.2d 360 (6th Cir. 1983) (per

curiam) (dictum); Storck v. Int'l

Brotherhood of Teamsters, Local

Union No. 600, 712 F.2d 1194 (7th Cir.

1983) (per curiam); Lincoln v.

District 9 of the [Int'l Ass'n of

Machinists and Aerospace Workers,723

F.2d 627 (8th Cir. 1983); Hand v.

Int'l Chemical Workers Union, 712 F.zd

1350 (llth Cir. 1983) (per curiam);

contra, Edwards v. Teamsters Local

31

No. 36, 719 F.2d 1036 (9th Cir. 1983),

cert. denied, 104 S.Ct. 1599 (1984).

Itt

Appellant urges us to carve out

an exception to the retroactivity

principle so that his claim may

proceed, arguing that under the

three-factor test articulated by the

Supreme Court in Chevron Oil Co.

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

DelCostello holding should be given

only prospective application. Most of

the authorities just cited, however,

applied the Chevron test and found

that DelCostello should be applied

retroactively, See Perez v. Dana

Corp., Parish Frame Division, supra,

718 F.2d at 584-85; Murray v. Branch

Motor Express Co., supra (adopting

reasoning of Perez); Edwards v. Sea-

32

i ata a ee te eee

Land Service, Inc., supra, 720 F.2d at

860-62; Lincoln v. District 9 of the

Int'l Ass'n of Machinists and

Aerospace Workers,, supra, 723 F.2d at

629-30. Moreover, in our view of this

case does not present circumstances in

which the use of the Chevron test

would be appropriate.

Were we asked to decide if

retrospective effect should be given

to a new rule which our court had

pronounced, the policy factors

enumerated in Chevron Oil would

indeed be determinative. See United

States v. Fitzgerald, 545 F.2d 578,

582 (7th Cir. 1976). Similarly, had

the Supreme Court given no indication

whether DelCostello should apply

retroactively, a Chevron Oil analysis

would also be in order. But these

33

factors are not present here. The

Supreme Court not only adopted a new

statute of limitations in DelCostello;

it applied that time bar retroactively

to govern the very claim at issue in

the case before it. We have noted that

"the Supreme Court is well aware of

how to avoid the effects of applying

one of its rulings retroactively to

the case at bar."

Cates v. Trans World Airlines, Inc.,

561 F.2d 1064, 1073 (2a Cir. 1977).

Thus, when that Court itself has given

retrospective application to a

newly-adopted principle, "no sound

reason exists for not doing so here."

Holzsager v. Valley Hospital, 646 F2d

792,797 (2d Cir. 1981). A court of

Appeals must cefer to the Supreme

Court's directive on this issue,

34

explicit or implicit. See United

States v. Fitzgerald, Supra, at 582.

Certainly, its intended application is

clear in this case.

We therefore decline appellant's

invitation to exclude his suit from

the DelCostello holding. Rather, we

adopt for this circuit the rule that

in employment termination cases, a

six-month statute of limitations

applies both retroactively and

prospectively to wrongful

discharge/failure to represent claims.

Because Welyczko's complaint was filed

more than five years after his

termination, it is clearly

time-barred. Accordingly, we affirm

the judgment of the district court

dismissing Welyczko's complaint.

35

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United

States Court of Appeals, in and for

the Second Circuit, held at the United

States Courthouse, in the City of New

York, on the 8th day of June, one

thousand nine hundred and eighty-four.

-—Ss ee Se 2 eS eee ee eee SB ee ee eS SF Se Oe eT Oe eee eS

ROMAN WELYCZKO,

Plaintiff-Appellant,

-against-

U.S.AIR, INC. and THOMAS POMEROY AS

CHAIRMAN OF THE INTERNATIONAL

ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS,

De fendants-Appellees.

as. + — — -— — — = ee oF ee ee Fe ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee oe oe

A petition for rehearing

xt to.nire a succestion that the

astics be ssheen. as ca. wwtire BEER

field herein by counsel for the

Plaintiff-Appellant, Roman Welyczko,

Upon consideration by the panel

that heard the appeal, it is

BEST AVAILABLE COPY &

Ordered that said petition for

rehearing is DENIED.

It is further noted that the

suggestion for rehearing in banc has

been transmitted to the judges of the

court in regular active service and to

any other judge that heard the appeal

and that no such judge has requested

that a vote be taken thereon.

Elaine B. Goldsmith

Clerk

37

WHEREFORE, petitioner

respectfully requests that the United

States Supreme Court grant the Writ of

Certiorari on behalf of Roman

Welyczko. rf —

lea. r/ bea

MARTIN WEINSTEIN, being duly

sworn deposes and says that he has

read the foregoing and that upon

information and belief it is true to

his knowledge as related by Lombardi,

Reinhard, Walsh & Harrison, P.C., and

that he believes wa Petition’ to be

Th =—-

Sworn to before me this

true.

QUT aay of rex a 1984

hae gd? # Loa Ea Af

Notary Pub ic U

3/3 of P=

38