Petition for Writ of Certiorari — Bedat v. McLean Trucking Co.

84-1455"

A- 670

No.

Office - Supreme Court, U.S.

FILED

MAR 14 1986

ALEXANDER L. STEMAG&

Supreme Court of the Anited

APRIL TERM, 1985

HAROLD A. BEDAT, ef. als.

Petitioners

vs.

McLEAN TRUCKING COMPANY,

Respondents

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

EBNWEST C. LAFOLLETTE

1432 POST ROAD

r FAIRFIELD. CT 06430

2C 5-454°1487 OF COUNSEL

THOMAS K. TWIST

002 CHEMICA! BANK BLDG.

9 DELAWARE AVENUE

BUFFALO, NEW YORK 14202

716-856-3670

CLERK

COUNSEL FOR THE PETITIONERS

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW.......... ii

og ge Se ee ee ee ee iii

JURISDICTIONAL STATEMENT..........eee00% Ee |

STATUTORY PROVISIONS INVOLVED........... 1v

TAR OF AUTHOR Bre vce csvccccscectacs Vv

DEMEMEUEIE, OF THE GRDEs ccc ccc cceccvseves 1

REASONS FOR GRANTING THE WRIT........... 4,

I, 5 sooo ek pases 18.

APPENDIX

Opinion of the U.S. Court of Appeals

for the Second Circuit 84-7507....... 19.

QUESTIONS PRESENTED FO. 3EVIEW

1. Whether it violates the wue

Process clause of the Fifth Amendment of the

U.S. Constitution to terminate a pending case

by the retroactive application of a newly

adopted statute of limitations where the

action was timely under existing law at the

time it was instituted?

2. Whether DelCostello is to be

applied retroactively to a § 301 hybrid

action without an analysis of the factors of

Chevron Oil Co. v. Huson?

3. If Chevron Oil Co. v. Huson is

applicable, whether this case requires an

exception to the retroactive application of

DelCostello?

ii

OPINION BELOW

The opinion of the Court of Appeals

for the Second Circuit appears in the Appendix

hereto. The opinion is unreported and un-

published. Judgment was entered on December

14, 1984.

JURISDICTIONAL STATEMENT

The judgment of the United States

Court of Appeals for the Second Circuit was

entered on December 14, 1984.

This Court's jursidiction is invoked

under 28 U.S.C. §1254(1).

iii

STATUTORY PROVISIONS INVOLVED

UNITED STATES CODE, TITLE 29:

§160(b) Complaint and notice of

hearing; answer; court rules of

evidence applicable.

»~PROVIDED, That no complaint

shall issue based upon any unfair

labor practice occurring more than

six months prior to the filing of

the charge with the Board and the

service of a copy thereof upon the

person against whom such charge is

made, unless the person aggrieved

thereby was prevented from filing

such charge by reason of service

in the armed forces, in which

event the six-month period shall

be computed from the day of his

discharge.

UNITED STATES CODE, TITLE 29:

§185(a) Suit by and against

labor organizations, venue, amount,

and citizenship.

(a) Suit for violation of contracts

between an employer and a labor

organization representing employees

in an industry affecting commerce

as defined in this chapter, or

between any such labor organizations,

may be brought in any district court

iv

of the United States having

jurisdiction of the parties, with-

out respect to the amount in con-

troversy or without regard to the

citizenship of the parties.

TABLE OF AUTHORITIES

CASES PAGES

Aarsvold v. Greyhound Lines, Inc.

Van Pee fe Coe Clr 1eO Tics os sak cewek 16

Abrams v. Carrier Corp.

434 F2d 1234, 1253 (2nd Cir, 1970)..... 4,17

Antoni v. Greenhow

pr de Pe ee Eg .. Serer retro gee arr 2

Barina v. Gulf Trading and Trans-

portation Co.

726 F2d 560, 562-563 (9th Cir, 1984)...13

Canadian Northern Reg. Co. v. Eggen

Ce Uses JOTe FOR TAPROOT hae hoe ete scear 10,11

Chevron 0il Co. v. Huson

LOL U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d

ee oe Spe reers re. ere 13,14,15,

16,17,18

DelCostello v. International Brother-

hood of Teamsters

i) es supe fek, Off 679 F.26 STO... 3... 14

DelCostello v. International Brother-

hood of Teamsters

462 U.S. 101, 103 S.Ct. 2281, 76 L.Ed.2d

WO CRE i wh enlne de Sed + eee es 24328512,

13,15,16,

17,18

Edwards v. Sea Land Service, Inc.

Tee: Pe OST COON CAs SPOR c ka aesvecdacen 15

Vv.

Edwards v. Teamsters Local 36

719 F2d 1036, (9th Cir, 1983) cert.

denied U8, » 104 S.Ct. 1599, 80

ge” Ba. ae rear 13

Ernst v. Indiana Bell Telephone Co.

TL? POG 1090 (7TH Cir, L9G3).. cw eccvenene 15

Ferguson v. Sturm Ruger & Co, Inc.

524 F.Supp 1082 (1961)... cc ccc cncnscvcnne 11

Graves v. Smith's Transfer Corp.

Pa ee Ae TARe. CAs 2POO Pesce essa ncnce 13

Gray v. Meatcutters

___F2d__, 116 LRRM 3173 (5th Cir, 1984).15

Herrick v. Boquilles Cattle Co

2 x tee SS | | > Se ere rare are 9

Kennedy v. Wheeling Pittsburgh Steel

Corp. 81 LRRM 2349 (4th Cir, 1973)...... 15

Koshkonong v. Burton

. Sy Eb: +S Se eer "4

Lincoln v. Distric of IAM .

723 Fed 627 (ith 4. Ce CD eo i

Lynch v. United States

eee 0.8. Sts (60s) So ewe

Vy Co.

Murray v. Branch Motor Express,

ee 14

Perez v. Dana Corp, Parash Frame Div. a

718 Fed 581 (3rd, Cir, \:):5) oo 1

Pitts v. Frito-La Inc.

700 F2d 330 (6th Cir, i): +) eee 14

vi.

Rodrigue v. Aetna Casualty & Surety

We Ee Es CG EA CEE OAS cee ck vc ka 16

Rogers v. Lockheed - Georgia Co.

720 F2d 1247 (llth SS, ks 1¢

Scoggins v. Boeing Co, Inc.

742 Fed 1255 Ce 13

Sohn v. Waterson

af Weak See Cow U.8. TOTS T i. ckckc cca 5,6,7,11

Tennessee v. Sneed

I i a ks kd bb wcwa eee 11

Terry v. Anderson

oe SOR fa, y See nnn e aris ara re 10,11

Union Pacific RR v. Laramie Stockyards

Ck Mee SO CA ig 45 4% 6 hk a boca ck oa 9

United Parcel Service,Inc. v. Mitchell

i he Be Eee lire amare rr ot Pe

15,16,17

United States v. Morena

245 U.S. 392 at 397 | g Se neers 9

Vreeland v. Tcewn of Bergen

> G ) "2 Bpetperpey ganna ee 9

Welyczko v. U.S. Air, Inc.

733 F2d 239 (2nd es PR we sb k's bee Cha oe &

W.E. Wortham Co. v. Thomas

2 A A ae. 2) Aegina eee er iee o, 10

vii.

STATEMENT OF THE CASE

Plaintiffs are thirteen employees

of McLean Trucking Company who brought an

action in the Federal District Court in

Connecticut under the jurisdiction of §301 of

the Labor Management Relations Act (29 U.S.C.

§185) for breach of a collective bargaining

contract between McLean and the defendant

Teamsters Union Locals 191 and 677, and

breach of the duty of fair representation by

the Locals.

The within action was initially

filed on June 13, 1980, and amended complaints

were filed on September 3, 1980 and September

2, 1981.

Plaintiffs contend that as former

employees of ONC Trucking Company, they were

entitled to be dovetailed in seniority with

McLean employees when McLean purchased

certain operations and assets of ONC Truck-

ing Company, and that the defendants, in

1.

breach °f contract obligations and the duty

of fair representation, entailed ONC employees

rather than dovetailing them, with the result

that ONC employees were given the lowest

seniority and lost substantial wages and

benefits thereby.

McLean filed a Motion to Dismiss on

September 8, 1980, which was granted by

Magistrate Arthur Latimer on June 2, 1981,

based on this Court's opinion in United

Parcel Service, Inc., v. Mitchell, 451 U.S.

56 (1981). The Magistrate's opinion was

approved and adopte by the District Court

(Burns, J.) on August 25, 1981. The Court

granted leave to file an amended complaint

and McLean moved to dismiss the Second

Amended Complaint on grounds of the statute

of limitations of 9 U.S.C. §12 and/or §52-

420 of the Connecticut General Statutes. On

June 8, 1983, the DelCostello case was issued.

By motion of July 5, 1983 McLean sought to

dismiss based on DelCostello. On July 12,

wa

1983, the union first filed a Motion to

Dismiss based on DelCostello.

On February 8, 1984 Magistrate

Latimer granted all defendants' Motions to

Dismiss based on DelCostello, and on May 24,

1984 Judgment was entered for defendants.

Plaintiffs appealed from the

Judgment of the District Court contending

that DelCostello should not have been

applied retroactively to this case ard that

filing of unfair labor charges before the

National Labor Relations Board should have

tolled the six-month statute under 29 U.S.c.

§160.

The Second Circuit filed an in-

formal opinion on December 14, 1984 affirm-

ing the District Court and holding that

"the six-month Statute of Limitations set

forth in DelCostello applies retroactively

to all ‘claims under Section 301. °*

REASONS FOR GRANTING THE WRIT

I.

The Court of Appeals found with-

out merit the argument that the application

of a shortened statute of limitations to

bar a claim which was timely under prior

law raised significant constitutional

issues under the Fifth Amendment of the

United States Constitution. When this

action was filed on June 13, 1980, the

decision in Abrams v. Carrier Corp. 434 F.2d

1234, 1253 (2nd Cir. 1970) represented clear

authority in the Second Circuit that the

applicable statute of limitations period

for §301 hybrid actions was the period for

an action upon a contractual obligation or

liability, that the same statute governed

both the action against the employer and the !

labor representative.

The United States Supreme Court

has often cast doubt on the constitutionality

4,

of legislation shortening statutes of limita-

tions without giving reasonable opportur:i*;,

for litigants to press existing or pending

claims. In the often-cited decision of

Sohn v. Waterson 17 Wall 596 (84 U.S. 1873)

Justice Bradley stated at p. 599:

"A statute of limitations may

undoubtedly have effect upon

actions which have already accrued

as well as upon actions which

accrue after its passage. Whether

it does so or not will depend upon

the language of the act, and the

apparent inzent of the legislature

to be gathered therefrom. When a

statute declares generally that

no action, or no action of a

certain class shall be brought,

except within a certain limited

time after it shall have accrued,

the language of the statute would

make it apply to past actions as

well as to those arising in the

future. But if an action accrued

more than the limited time before

the statute was passed a literal

interpretation of the statute

would have the effect of absolutely

barring such action at once. It

will be presumed that such was

not the intent of the legislature.

Such an intent would be uncon-

stitutional. To avoid such a

result, and to give the statute a

construction that will enable it

to stand, courts have given it a

5.

prospective operation. In doing

this, three different modes have

been adopted by different courts.

One is to make the statute apply

only to causes of action arising

after its passage. But as this

construction leaves all actions

existing at the passage of the

act, without any limitation at

all (which, it is presumed,

could not have been intended),

another rule adopted is, to con-

strue the statute as applying

to such existing actions only as

have already run out a portion

of the statutory time, but which

still have a reasonable time

left for prosecution before the

statutory time expires -- which

reasonable time is to be estimated

by the court -- leaving all other

actions accruing prior to the

Statute unaffected by it. The

latter rule does not seem to be

founded on any better principle

than the former. It still leaves

a large class of actions entirely

unprovided with any limitation

whatever, or, as to them, is un-

constitutional, as is a more

arbitrary rule than the first.

A third construction is that which

was adopted by the Court below in

this case, and which we regard as

much more sound than either of

the others (citing C.J. Taney, in

Lewis v. Lewis, 7 Harvard 778).

‘Upon principle, it would seem to

be clear, that it must commence

when the cause of action is first

subjected to the operation of the

statute, unless the legislature

6.

has otherwise provided.'"

In a decision upholding a state

reduction of the limitations period for

suits by municipal bond holders, Koshkonong

v. Burton 104 U.S. 668 (1881) at 675, the

Opinion states:

"It was undoubtedly within the

constitutional power of the

legislature to require, as to

existing causes of action, that

suits for their enforcement

should be barred unless brought

within a period less than that

prescribed at the time the

contract was made or the liability

incurred from which the cause of

action arose. The exertion of

this power is, of course, sub-

ject to the fundamental condition

that a reasonable time, taking

all the circumstances into con-

Sideration be given by the new

law for the commencement of an

action before the bar takes

effect.”

Sohn v. Waterson, supra, wes cited

with approval by the Supreme Court as late

as 1953 in United States v. Lindsey, 346

U.S. 568, 570.

The difficulty herein is that the

triple barrage of United Parcel Service,

7.

Inc. v. Mitchell, 451 U.S. 56 (April 20,

1981);

DelCostello v. International

Brotherhood of Teamsters, 462 U.S. 101,

103 S.Ct.2281, 76 L.Ed.2d. 476 (1983); and

Welyczko v. U.S. Air, Inc. 733 F.2d 239

(2nd Cir, 1984) left plaintiffs no time

whatsoever, let alone a reasonable time

Since pending actions were summarily

dismissed.

If it be argued that the Sohn

case and its progeny protect only against

State infringements under the obligation

of contract clause of the U.S. Constitution,

other cases extend the principle to the

federal leval within the ambit of the Due

Process clause of the Fifth Amendment. See

Lynch \.

(1933):

United States, 292 U.S. 571, 580

"Contracts between individuals

or corporations are impaired

within the meaning of the con-

stitution whenever the right to

enforce them by legal process is

taken away or materially lessened."

8.

~--

>

>

In a case upholding a federal

statute shortening the time required for

application for citizenship to seven

years after declaration, the Supreme Court

stated in United States v. Morena, 245 U.S.

392 at 397 (1917):

"A limitation of time even upon

the assertion of a right there-

fore having no limitation upon

its assertion, or a different

limitation, is not infrequent,

and its legality is unquestion-

able if a time reasonable, in

view of the subject matter, be

given."

An extensive discussion of the

Sohn decision is contained in Union Pacific

RR v. Laramie Stockyards, 231 U.S. 200

(1913). The Supreme Court in Herrick v.

Boquilles Cattle Co, 200 U.S. 96, 102 (1905)

noted that a suit pending at the time a

ten-year statute took effect could not be

barred by retrospective application of the

statute, citing Vreeland v. Town of Bergen,

34 N.J. Law 438. See also W.E. Wortham Co.

v. Thomas, 292 U.S. 426, 433 (1934) per

J. Hughes:

"But we also held that this

essential reserved power of the

State must be constured in

harmony with the fair intent of

the constitutional limitation,

and that this principle precluded

a construction which would permit

the state to adopt as its policy

the repatriation of debts or the

destruction or the denial of

the means to enforce them."

In Terry v. Anderson, 95 U.S. 628,

632 (1877), Chief Justice Waite wrote:

"This court has often decided

that statutes of limitations

affecting existing rights are

not unconstitutional if a reason-

able time is given for the

enforcement of the action before

bar takes effect."

In Canadian Northern Reg. Co. v.

Eggen, 252 U.S. 547, 562 (1920) the Supreme

Court opinion stated:

"This is the principle on which

this court has repeatedly ruled

that contracts were not impaired

in a constitutional sense by

change in limitations statutes

which reduce the time for

commencing actions upon them,

provided a reasonable time was

10.

given for commencing suit

before the new bar took effect.

Sohn v. Waterson, 17 Wall 596,

Terry v. Anderson 95 U.S. 628,

32, Tennessee v. Sneed, 96

U.S. 69, 74, Antoni v. Greenhow

107 U.S. 769, 774."

Judge Robert Zampano of the Federal

District Court for the District of

Connecticut dealt with this principle

in Ferguson v. Sturm Ruger & Co., Inc.

524 F.Supp 1042, 1045 (1981) interpreting

a Connecticut Statute stating:

"To the extent an act amends

a statute of limitations so

as to bar accrued causes of

action which were not barred by

the previous statute it is

unconstitutional, Sohn v. Water-

son, 84 U.S. (17 Wall) 596, 599

....The provision here in

question did not allow for any

"grace period’ which could save

it from the proscription of this

doctrine."

If Congress were to enact a six-

month statute of limitations for $301

actions and to bar pending actions pre-

viorsly governed by applicable state

statutes of limitations, could such action

ll.

pass constitutional muster under the fore-

going authorities? It seems likely that

this court would imply a grace period in

order to prevent the statute from operating

retrospectively to bar pending claims. The

federal courts have been left to administer

an area of law through action which resembles

the legislative function. Congress never

placed a limitation on $301 actions, but the

performance of that function resembles a

legislative act.

Whether the imposition of a limita-

tions period to §301 actions be viewed as a

legislative or a judicial function, can the

constitutional problem dealt with so care-

fully by this Court be dealt with differently

because the courts, rather than Congress, are

left to fashion the applicable law?

II

There is a conflict in the circuits.

Although most circuits, including the Second

Circuit, apply DelCostello retroactively,

12.

—

the 9th Circuit does not. Edwards v. Team-

sters Local 36, 719 F.2d 1036, 1040-1041

(9th Cir, 1983), cert. denied __—iU.S.

104 S.Ct. 1599, 80 L.Ed.2d. 130 (1984)

Barina v. Gulf Trading and Transportation

Co., 726 F.2d 560, 562-63 (9th Cir., 1984);

Scoggins v. Boeing Co., Inc. 742 F.2d 1255

(9th Cir, 1984).

Additionally, the Second Circuit

held in Welyczko v. U.S. Air, Inc., 733

F.2d 239 (2nd Cir. 1984) that DelCostello

did not require the application of Chevron

Oil Co., v. Huson. The Sixth Circuit held

to the contrary in Pitts v. Frito-Lay, Inc.

700 F.2d 330 (6th Cir, 1983).

The First Circuit applied the Chev-

ron tests adversely to the plaintiff but

noted that the cause of action accrued in

November of 1982. DelCostello was decided

June 9, 1983 and suit was brought thereafter

on July 15, 1983. Graves v. Smith's Transfer

Corp., 736 F.2d 819 (lst ‘ir, 1984).

13+

The Third Circuit applied the

Chevron tests adversely to plaintiff, noting

that the action had been brought on Septem-

ber 18, 1981 after the decision in United

Parcel Service v. Mitchell on April 20,

1981 and noting also that there was no clear

precedent that the plaintiff could rely on.

Perez v. Dana Corporation, Parash Freme Div.

718 F.2d 581, 587-588 (3rd Cir, 1983)..

The Fourth Circuit in Murray v.

Branch Motor Express Company, 723 F.2d

1146, contained no discussion of past

precedent in the circuit, referred to a

chaotic development of law in the area, and

applied Chevron adversely to a plaintiff

who sued on September 13, 1978, some 29

months after accrual of the cause of

action. However, the Federal District Court

opinion in DelCostello v. International

Brotherhood of Teamsters, 524 F.Supp. 721

aff'd. 679 F.2d 779 applied the Chevron

tests adversely to plaintiffs in applying

14.

United Parcel Service, Inc., v. Mitchell

retroactively. The District Court describ-

ed the unpublished decision of Kennedy v.

Wheeling Pittsburgh Steel Corp., 81 LRM

2349 (4th Cir. 1973) as rot “addressing

the question decided in Mitchell", since

Kennedy did not deal with arbitration.

The Fifth Circuit appears to be

consistent with the Second Circuit in

applying DelCostello retroactively to all

hybrid cases regardless of a Chevron Oil

analysis. Edwards v. Sea Land Service, Inc.

720 F.2d 857 (5th Cir. 1983), Gray v.

Meatcutters, _—-*F.2d ___, 116 LRRM, 3173,

3174 (5th Cir, 1984).

The Seventh Circuit applied Del-

Costello retroactively to a suit begun

April 9, 1982, the cause of action having

occurred May 13, 1981. Ernst v. Indiana

Bell Telephone Co., 717 F.2d 1036 (7th Cir.

1983). It would appear that the 7th Circuit

joins the "all cases" approach of the Second

15.

and Fifth Circuits. The Eighth Circuit appli-

ed Chevron adversely to a plaintiff who sued

June 8, 1982, noting since United Parcel Serv.

Service, Inc. v. Mitchell presaged DelCostello,

thus there was no clear break with past pre-

cedent. Lincoln v. District 9 of I.A.M.

723 F.2d 627, 630 (8th Cir, 1983). See also

Aarsvold v. Greyhound Lines, Inc. 724 F.2d 72

The Eleventh Circuit applied Del-

Costello retroactively without discussing

Chevron, Rogers v. Lockheed - Georgia Co.,

720 F.2d 1247, 1249 (llth Cir, 1983).

If Chevron is to stand it amounts

to quite a strain to find that the case does

not apply to these facts. In Chevron, while

the plaintiff's case was pending, the Supreme

Court decided Rodrigue v. Aetna Casualty &

Surety, 395 U.S. 352, which held that the

statute of limitations applicable to an

action for injuries under the Lands Att was

16.

a

the shorter state statute, rather than the

longer federal period relied on by plaintiff.

The oft cited three factors of Chevron

militate in plaintiff's favor herein.

First either Mitchell or DelCostello or the

two cases combined represented a clear break

from the Abrams case in the Second Circuit.

Secondly, looking to purpose and

effect, it is argued that if cases brought

prior to United Parcel Service, Inc. v.

Mitchell in timely reliance on clear pre-

cedent in their circuit are allowed to pro-

ceed, no damage will be done tothe rule of

uniformity.

Third, as in the Chevron case

“retroactive application of the (shorter)

statute of limitations to this case would

deprive the respondent of any remedy whatso-

ever or the basis of superceding legal

doctrine that was quite unforseeable.”

404 U.S. at 96.

As stated by +m Chevron Court “non

17

BEST AVAILABLE COPY §

retroactive application here simply preser-

ves his right to a day in Court.” (404 U.S.

p- 96).

TTI

Whether, as maintained by the

Second Circuit in Welyczko, the Supreme

Court in DelCostello intended to dispense

with its tests under Chevron Oil Co. v.

Huson for $301 hybrid action, raises an

important question of federal law.

CONCLUSION

For these reasons, a Writ of

Certiorari should issue to review the

Judgment and Opinion of the United States

Court of Appeals for the Second Circuit.

Respectfully Submitted,

Ernest C. LaFollette, Esq.

Of Counsel,

Thomas Twist, Esq.

March 12, 1985 Counsel for Petitioner

18.

See ts BE :

UNITED STATES COURT OF APPEALS

Second Circuit

At a stated Term of the United

States Court of Appeals for the Second

Circuit, held at the United States Court-

house in the City of New York, on the 14th

day of December one thousand nine hundred

and eighty four.

Present: HONORABLE IRVING R. KAUFMAN,

HONORABLE WILLIAM H. TIMBERS,

HONORABLE MAX ROSENN, *

Circuit Judges.

HAROLD A. BEDAT, JOHN BENEVENTO, MICHAEL

VARGA, RICHARD NOEL, WILLIAM P. DENSMORE,

CHESTER BARTNIKOVSKI, WILLIAM BURNETT,

THOMAS H. BYRON, ROBERT FLORA, ROBERT

STEFURAK, PETER MOISAN, JOHN MIKLUS, and

ANTHONY ESPOSITO,

Plaintiffs-Appellants,

-against-

McLEAN TRUCKING COMPANY, LOCAL 191-INTER-

NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,

WAREHOUSEMEN AND HELPERS OF AMERICA and LOCAL

677- INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHCUSEMEN AND HELPERS OF

AMERICA,

De fendants-Appellees.

* Senior Circuit Judge, U.S. Court of Appeals

for the Third Circuit, sitting bv designation.

19.

Docket Number: 84-7507

N.B. Since this statement does not

constitute a formal opinion of this court

and is not uniformly available to all

parties, it shall not be reported, citeu

or otherwise used in unrelated cases »efore

this or any other court.

Appeal from the United States

District Court for the District of Connec-

ticut.

This cause came on to be heard on the tran-

script of record from the United States

District Court for the District of Connecti-

cut, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is

now hereby ordered, adjudged, and decreed

that the judgment of said District Court be

and it hereby is affirmed.

1. Bedat, et al (Bedat) asserts

that the district court improperly dismissed

his complaint as time barred. In DelCostello

v. International Brotherhood of Teamsters,

462 U.S. 101 (1983), the Supreme Court

established a six-month statute of limita-

20.

tions for claims brought pursuant to Section

301 of the Labor Management Relations Act,

29 U.S.C. § 185 (a). The “federal pcl_. ‘2s

at stake and the practicalities of litigation”

demanded such a uniform federal limitations

standard. Id. The six-month statute of

limitations set forth in DelCostello applies

retroactively to all “claims under Section

301." Welyczko v. U.S. Air, Inc., 733 F.2d

239, 241 (2d Cir. 1984); see also Assad v.

Mt. Sinai Hospital, 725 F.2d 837 (2nd Cir.

1984); Edwards v. Sea Land Service, Inc.,

720 F.2d 857 (5th Cir. 1983). Because

Bedat's complaint was filed eight months

after the New England Joint Area Conference

Committee determined that Bedat was "not

entitled to dovetail seniority rights," the

district court's dismissal was proper under

DelCostello. See Welyzcko, supra, 733 F.2d

at 241.

2. Bedat claims that, in any

event, his complaint was riled within the

21h

six-month statute of limitations mandated by

DelCostello. He urges that the statute

should have been tolled when he filed and

pursued charges with the National Labor

Relations Board (NLRB). Where the same

factual circumstances give rise to two

separate and independent avenues of relief,

the pursuit of one statutory remedy will

not toll the statute of limitations for the

for the other cause of action. See Inter-

national Union of Electrical, Radio and Mach-

ine Workers v. Robbins & Myers, Inc., 429

U.S. 229 (1976); Johnson v. Railway Express

Agency, 421 U.S. 454 (1975). Actions brought

pursuant to Section 301 are wholly distinct

from claims filed with the NLRB. See Vaca v.

Sipes, 386 U.S. 171, 182-82 n.8 (1967).

Accordingly, the filing of unfair labor

practice charges with the NLRB will not toll

the running of the statute of limitations on

a Section 301 claim. See Aarsvold v.

Greyhound Lines, Inc., 724 F.2d 72 (8th Cir.

22.

1983)s Nicely v. United States Steel Corp.

574 F.Supp. 134, 187-88 (W.D. Pa. 1983).

Moreover, even if it were assumed that

DelCostello’s six-month statute of limita-

tions was tolled during the pendency of the

NLRB action, Bedat's filing of this Section

301 suit on June 13, 1980 was still untimely.

% Bedat's other claims are

Similarly without merit.

4. Accordingly, the judgment of

the district court is affirmed.

o8f Irving R. Kaufman

RVING R. KAUFMAN

/s/ William H. Timbers

WILLIAM H. TIMBERS,

/s/ Max Rosenn

MAX ROSENN,

Circuit Judges

23.