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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 1101

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2533%3A1. Public record. Not legal advice.