Petition for Writ of Certiorari — Mauget v. Kaiser Engineers, Inc.

85-7095 ( 0)

NO.

IN THE SUPREME COURT OF THE UNITED S

OCTOBER TERM 1985

Supreme Court, U.

FILED

OCT 29 1985

JOSEPH F. SPANIOL,

CLERK

WOODROW MAUGET

Petitioner

VS.

KAISER ENGINEERS, INC. et.

Respondents

al.

To the United States Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

For the Sixth Circuit

Paul H. Tobias

Tobias & Kraus

414 Walnut Street

|

911 Mercantile Library Bldg.

)

|

Cincinnati, Chio 45202

(513) 241-8137

Attorney for Petitioner |

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1985

WOODROW MAUGET

Petitioner

VS.

KAISER ENGINEERS, INC. et. al.

Respondents

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

Paul H. Tobias

Tobias & Kraus

911 Mercantile Library Bldg.

414 Walnut Street

Cincinnati, Ohio 45202

(513) 241-8137

Attorney for Petitioner

QUESTION PRESENTED

Should the decision in DelCostello v. I.B.T.,

103 S.Ct. 2281 (1983), be prospective only or

be retroactively applied?

PARTIES TO THE PROCEEDING

The parties to this proceeding are

Petitioner: Woodrow Mauget (who will

hereinafter be referred to as "Petitioner");

and Respondents; Kaiser Engineers, Inc. and

Pipe Fitters Union Local No. 392 (hereinafter

referred to collectively as "“Respondents").

TABLE OF CONTENTS

ITEM PAGE

QUESTION PRESENTED . . . «6 © «© « i

PARTIES TO THE PROCEEDING. . . . . i

TABLE OF AUTHORITIES oe Gi yaa Ne

eee me. » « «6 ~~. «© «2

GROUNDS ON WHICH JURISDICTION OF THIS

COs Se ees 88 ek ee Ser ie 8

STATEMENT OF THE CASE . =. =<«e« «2 « 3

HOW FEDERAL QUESTIONS WERE RAISED .. 8

ARGUMENT: REASONS RELIED ON FOR

ALLOWANCE OF THE WRIT . ¢ « «© «© «a §

I. THE COURT DISREGARDED THE

STANDARDS OF CHEVRON OIL v.

HUSON, 404 U.S. 97 (1971) IN

DETERMINING WHEN A STATUTE OF

LIMITATIONS MAY BE GIVEN

RETROACTIVE EFFECT he ee eae

II. A WRIT OF CERTIORARI IS NECES-

SARY TO RESOLVE THE CONFLICT

THAT EXISTS AMONG THE CIRCUIT

COURTS ON THE ISSUE OF THE

RETROACTIVITY OF_DELCOSTELLO

v. T.B.T., 103 S.Ct. 2261

(1983) ee ee ° 14

to

CONCLUSION . . . « -« ° . : 16

AFFADAVIT OF SERVICE. . . . ° 17

TABLE OF CONTENTS CON'T

Item Page

Appendix A-

Order of United States Court of

Appeals for the Sixth Circuit,

dated August 2, 1985 ..... -« Al

Appendix B-

Order and Opinion of United States

District Court for the Southern

District of Ohio, Western Division,

filed September 3, 1982 . .... 8B)

Appendix C-

Memorandum and Order of United

States District Court for the

Southern District of Ohio, Western

Division August 2, 1983 ..... C1

-iii-

TABLE OF AUTHORITIES

Cases: 3 Page

Abrams vs. Carrier Corp.,

434 F.2d 1234 (2nd Cir. 1971) . . 10

Arizona Governing Committee v. Norris,

77 L.Ed.2d 1236, 103 S.Ct. 3492

(1983). >. >. o > >. 7 > . . >. 7 . . 13

Badon v. GMC,

679 F.2d 93 (6th Cir. 1982) ... 7

Butler vs. Teamsters Local 832,

514 F.2d 442 (8th Cir. 1975)... 10

Chevron Oil Co. v. Huson, 404

U.S. 97 (1971). . 7 . o + . . . . 6-7,9,12-17

DeArroyo Sindicato vs. De Trabajadores

Packing House,

Gzm Beam aut £18 Cie. 1970). « « 18

DelCostello v. International

Brotherhood of Teamsters, 103

$.Ce. 2281 (1983) = . . . . + . 7 6-7,10-

12,14-16

Devries v. Interstate Motor Freight

System, 91 LRRM 2765 (ND of Ohio,

January 7, 1976) ..+«-+«-2e-ee & 4

Dill v. Wood Shovel & Tool Co.,

68 LC 12,685 (SD of Ohio, 1976) . 4

Edwards vs. Sea Land Service, Inc.,

7a wee Ser tou Gat. V9Es0e « « 58

Edwards v. Teamsters, Local 36,

719 F.2d 1036 (9th Cir. 1983) .

14

Englesburg v. Transcom Lines, Inc.,

530 F.Supp. 628

[Wa Oe BiGines 2 eee) 6s 30 es

Graves v. Smith's Transfer Corp.,

736 F.2d 560 (9th Cir. 1984)...

Gray v. International Assn.,

416 F.2d 313 (6th Cir. 1969) ..

Kennard V. United Parcel

Service, Inc.,531 F.Supp. 1139

ca a Seaees CUEAe @ 6 &@ © 6 @

Kennedy vs. Wheeling Pittsburgh

Steel Corp,

See wae tee «ees Cars 1973) 6 2

Lawson V. Truck Drivers,

696 F.2d 250 (6th Cir. 1983)...

Lincoin v. District. 9, I.A.M.,

77 4a eee Seen Gates: 1POShs « «

Los Angeles Dept. of W & P v.

Manhart,

S35-0.8,.-702,55 L.ED2d 657,98

aa Saree Sere 6 6. a we ee

Lowther v. Fred Albrecht Grocery,

97 LRRM 2278 (ND of Ohio 1977). .

McFarland v. I.B.T.,

535 F.Supp. 970

[a -a’: Tee) « » 0 6 © @ &

McNaughton v. Dillingham Corp.,

99 LC 10,688 (9th Cir. 1984)...

15

”

4,10

15

10

‘3

13

15

Northern Pipe Line Co. v.

Marathon Pipe Line Co.,

Moe Weme Oe Cteeeis « «© © 6 2 ew

Perez v. Dana Corp., Parish Frame

Division, 718 F.2d 581

EE ee ee

Pitts v. Frito Lay, Inc.,

veo wane see tocnm Cir. 1983)...

Price v. Southern Pacific

Transportation Co.,

586 F.2d Dnt. CBSO e « 0 © oc

Reyes Barina v. Gulf Trading &

Transportation Co.,

100 LC 10,821 (9th Cir. 1984)

Rogers v. Lockland-Georgia Co.,

7a eee fees eee Car. 1983). .

Singer v. Flying Tiger Line, Inc.,

Sue wee teen teem Cir. 1981)...

Smart v. Ellis Trucking Co.,

nan eae eee seer Car. 1978)...

Sieve e. 6.4.C.,

Tet. 2san Ste

ce er eee wees DMC) .« « « «

Tally v. U.S. Postal Service,

532 F.Supp. 786

DUP S RUE Ds 6 «9 « «6 @ ©

U.A.W. v. Hoosier,

TC CCD. « © 6 © «© ec

United Parcel Service, Inc. v.

Mitchell, 451 U.S. 56, 101 S.Ct.

iia. 6 6 6 6 6 5 « e

-vi-

12

3S

10

14

15

15

5-6,10-11,

15-16

Zemonick v. Consolidated Coal Co.,

103 LC 11, 492 (4th Cir. 1985). . 14

ARTICLES

Comment: "Statute of Limitations

Governing Fair Representation Actions

Against Unions When Brought With

Section 301 Action Against Employer"

44 George Washington Law Review,

416, 424 n.40-42 (1976) . «= © « « 9S

STATUTES

Section 301 of the Labor Management

Relations Act, 29 U.S.C.

Section 1 85 - - a o 7 . el > o * = 3

Section 10(b) of the National Labor

Ee a ee eee tee ee ee ee 7

-vii-

SUPREME COURT of the UNITED STATES

Term October, 1985

No.

WOODROW MAUGET, Petitioner

vs.

KAISER ENGINEERS, INC., et. al.

Respondents

PETITION FOR A WRIT OF CERTIORARI

To The United States Court of Appeals

For The Sixth Circuit

To the Honorable Supreme Court of the United

States of America:

Petitioner respectfully petitions this

Honorable Court to grant a writ of Certiorari

to the United States Court of Appeals for the

Sixth Circuit to review a judgment of that

Court which affirmed orders of the United

States District Court, Southern District of

Ohio, Western Division, sustaining the

Respondents’: motions for dismissal. In its

behalf, Petitioner shows unto this Court:

OPINIONS BELOW

The order of the United states Court of

Appeals for the Sixth Circuit, dated August Z,

1985, is attached hereto as Appendix A. The

orders and opinions of the United States

District Court for the Southern District of

Ohio, Western Division, filed September 3,

1982 and August 2, 1985, are attached hereto

as Appendix B and C.

GROUNDS ON WHICH JURISDICTION OF

THIS COURT IS INVOKED

The decision sought to be reviewed is

that of the United States Court of Appeals for

the Sixth Circuit, dated August 2, 1985.

The statutory provision believed to

confer jurisdiction on this Court to review

the judgment below by writ of certiiorari is

Section 1254 of Title 28 U.S.C.A., which

provides that cases in the United States Court

of Appeals may be reviewed by the Supreme

Court by writ of certiorari.

STATEMENT OF THE CASE

This was an action for wrongful discharge

in breach of a labor agreement and for unfair

representation. Plaintiff was a pipefitter at

the Zimmer Power Station at Moscow, Ohio. On

December 7, 1976 he was discharged for failing

to advise the Company of the reason for his

absence from work. Plaintiff claimed his wife

did in Paw notify the Company concerning his

illness. The union business agent, acting out

of »ersonal hostility towards Plaintiff,

arbitrarily refused to process and arbitrate

his grievance and the union subsequently

refused to refer Plaintiff out for work.

On December 7, 1978 Plaintiff filed a

complaint under Section 301 of the LMRA, 29

U.S.C. Section 185 against the employer in the

U.S. District Court, Southern District of

Ohio. An amended complaint joining the union

as a defendant was filed on March 8, 1979.

At the time, UAW v. Hoosier Cardinal, 338

US 696 (1966) advised the lower federal courts

to consult analogous state statutes for the

applicable statute of limitations in section

301 suits. ..e@ Sixth Circuit in Gray vs.

International Association, 416 F.2d 313 (6th

Cir. 1969) approved a six year Kentucky

statute regulating statutory liability. In

Ohio there were three cases where the court

ruled that a very lengthy statute applied.

Devries vs. Interstate Motor Freight System,

91 LRRM 2765 (ND of Ohio January 7, 1976) (6

year statute based on ORC §1302.98 , Dill v.

Wood Shovel & Tool Co., 68 LC 12,685 (SD of

Ohio 1972) (4 year statute governing

fiduciaries), Lowther v. Fred Albrecht

Grocery,.97 LRRM 2278 (ND of Ohio 1977) (6

year statute based on ORC §2305.07). In July

1978 the Sixth Circuit, in a Michigan case,

approved application of a three year tort

statute. Smart v. Ellis Trucking Co., 580

F.2d 215 (6th Cir. 1978).

Plaintiff's counsel, a specialist in

representing Plaintiffs in Duty of Fair

Representation (DFR) suits, re.iied upon these

authorities. |

At the time no authority in the Sixth

Circuit even hinted that a short 90 day state

arbitration statute or six month NLRB statute

might apply. Thus Defendants' answers did not

even raise the statute of limitations as a

defense.

During the four year period of 1978-1981

the parties engaged in extensive discovery.

Pretrial statements were filed as the parties

prepared for trial.

In April 1981 the Supreme Court decided

the case of United Parcel Services v.

Mitchell, 101 S.Ct. 1559 (1981) holding that

arbitration statutes applied to 301-DFR suits.

lEvery law review article and legal treatise

at the time of suit supported Plaintiff's

right to rely upon a lengthy limitation

period, See, e.g. "Statute of Limitations

Governing Fair Representation Actions Against

Union When brought with a Section 301 action

Against an Employer," No. 4 George Washington

Law Review, 418 (1976).

=

'S eae eeeeaeeresepeaéeeseegeaa&bh &

Defendants then amended their answers, pleaded

the 90 day statute set forth in ORC 2711.13 as

a defense and filed motions to dismiss.

On September 9, 1982 the district court

applied the test of Chevron Oil Co. v. Huson,

404 US 97 (1971). The Court noted that

"retroactive application (of Mitchell) would

thus unfairly punish Plaintiff for his

justifiable reliance on settled Sixth Circuit

law" but nevertheless, granted Defendants'

motions for summary judgment based on other

national policies. However, the related DFR

claim of wrongfully failing to refer Plaintiff

for work out of the union hall survived,

because it was not related to the handling of

grievances.

On August 2, 1983 the remaining DFR claim

against the union was dismissed based on the

then recently decided case of DelCostello vs.

Teamsters, 103 S Ct. 2281 (1983) which

overruled Mitchell and announced the new rule

that courts should apply the six month Section

10(b) rule of the National Labor Relations

Act.

In Smith v. General Motors Corp., 747

F.2d 372 (6th Cir. 1984 en banc) the Sixth

Circuit decided that the DelCostello decision

should be retroactively applied to all hybrid,

301-DFR suits.2 On August 2, 1985 the Court,

relying upon Smith, dismissed Plaintiff's

appeal and affirmed the district court

judgment.

2The Smith case determined that this court sub

silento decided the retroactivity issue in Del

Costello by permitting retroactive application

of the statute in Del Costello. Earlier

decisions of the Sixth Circuit were in

conflict concerning whether, on a case by case

basis, Chevron standards required prospective

only application of Del Costello. Badon v.

GMC 679 F.2d 93 (6th Cir. 1982) Pitts v. Frito

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

LawSon v. Truck Drivers, 698 F.2d 250 (6th

Cie. 1983).

se

HOW FEDERAL QUESTIONS WERE RAISED

Federal questions herein were raised in

the briefs in the United States Court of

Appeals for the Sixth Circuit.

ARGUMENT: REASONS RELIED ON FOR

ALLOWANCE OF THE WRIT

I. THE COURT DISREGARDED THE STANDARDS OF

CHEVRON v. HUSON, 404 U.S. 97 (1971) FOR

DETERMINING WHEN A STATUTE OF LIMITATIONS

MAY BE GIVEN RETROACTIVE EFFECT.

In Chevron Oil v. Huson, 404 U.S. 97

(1971), this Court set out a ‘three part test

to be followed in determining when a decision

should be denied retroactive application:

"First, the decision to be applied

nonretroactively must establish a new

principle of law, either by overruling

clear past precedent on which litigants

may have-relied...or by deciding an issue

of first impression whose resolution was

not clearly foreshadowed...Secondly, it

has been stressed that ‘we must...weigh

the merits and demerits in each case by

looking to the prior history of the rule

in question, its purpose and effect, and

whether retrospective operation will

further or retard its operation’...

Finally, we have weighed the inequity

imposed by retroactive application, for

‘where a decision of this Court could

produce substantial inequitable results

if applied retroactively there is ample

basis in our cases for avoiding the

injustice or hardship by a holding of

nonretroactivity.' at 106-107. (cites

omitted)

Here the breach of contract was in 1976.

The original complaint was filed in 1978, 22

months later after the date of the unfair

representation.

Prior to 1978, the other circuit courts

of appeal were in accord with the Sixth

Circuit's approval of a lengthy statute in the

Gray case (op. cit); DeArroyo Sindicato De

Trabajadores Packing House, 425 F.2d 281 (ist

Cir. 1970); Abrams v. Carrier Corp. 434 F.2d

1234 (2nd Cir. 1971) cert. denied, 401 U.S.

1009 (1971); Kennedy vs. Wheeling Pittsburgh

Steel Corp., 482 F.2d 102 (5th Cir., 1973);

Price v. Southern Pacific Transportation Co.,

586 F.2d 750 (9th Cir. 1978); Butler v.

Teamsters Local 832, 514 F.2d 442 (8th Cir.

1975).

We know of no circuit court decision

prior to 1978 that "foreshadowed" the Mitchell

er DelCostello decision or that applied a

short statute to suits for breach of the duty

"=

of fair representation. Mitchell and

DelCostello established new principles which

overruled past precedent.

During the period of 1976-1979 no lawyer

in America could reasonably have predicted

that a 90 day or 6 month statute would apply.

Even the district court noted that “at the

time the present suit was filed counsel was

warranted in believing the appropriate Ohio

statute of limitations was either the 6 year

limitation period for liabilities created by

statute contained in ORC Section 2305.07 or

the 2 year period for actions for injuries to

person or property contained in ORC 2305.10."

DelCostello was a "clean break" with the

past. As observed in McNaughton v. Dillingham

Corp., 99 LC 10,688 (9th Cir. 1984)

"eit is difficult to

state that Plaintiffs

should have anticipated

that the Supreme Court

would borrow a federal

statute of limitations.

Even the Supreme Court in

DelCostello notes that

such a procedure is

unusual."

=

Retroactive application of DelCostello

deprives Plaintiff of any judicial remedy

based on an unforeseeable, superseding and

brand new doctrine. Denying Plaintiff, who

has been diligent, of his day in court is not

one of the purposes of DelCostello. In

addition, dismissal of this claim will retard

the salutory basic purpose of the law favoring

301-DFR suits where there has been a gross

injustice.

The instant case was pending over three

years before the statute of limitations

defense was even raised. Plaintiffs expended

a tremendous amount of time, energy and money

in reliance on existing law. It would produce

an extreme hardship and inequitable result to

apply DelCostello retroactively.

Recently this Court has emphasized the

reliance, hardship, and inequity factors set

forth in Chevron. In Northern Pipeline Co. v.

Marathon Pipe Line Co., 458 U.S. 50, (1982)

this Court refused to apply retroactively its

-12<

decision holding portions of the Bankruptcy

Code unconstitutional. The Court noted that

retroactive application would "...surely visit

substantial injustice and hardship on those

litigants who relied on the Act's vesting of

jurisdiction in the bankruptcy courts." 458

U.S. at 88, 73 L.Ed.2d at 626. Recently, this

Court has refused retroactive application of

two of its decisions involving relief under

Title VII of the Civil Rights Act of 1964 on

Similar grounds. Los Angeles Dept. of W & P

v. Manhart, 435 U.S. 702, 55 L.Ed.2d 657, 98

S.Ct. 1370 (1978); Arizona Governing Committee

v. Norris, 103 S.Ct. 3492, 77 L.Ed.2d 1236,

(1983) (per curiam) (Separate Opinions of

Powell, J. and O'Connor, J.).

In sum, each of the Chevron factors

weighs heavily in petitioner's favor. The

Sixth Circuit in Smith erred in its opinion

that this Court has already ruled on the

nts.

retroactivity issue in DelCostello and also

erred by failing to apply the. teachings of

Chevron to the case at bar.

II. A WRIT OF CERTIORARI IS NECESSARY TO

RESOLVE THE CONFLICT THAT EXISTS AMONG

THE CIRCUIT COURTS ON THE ISSUE OF THE

RETROACTIVITY OFF DELCOSTELLO V.I. B.T.

103 S.Ct. 2281 (1983).

Most recently the Fourth Circuit denied

retroactive application of DelCostello in

circumstances which "shout of inequity" and

where "belated erection of a procedural bar is

an unwarranted frustration of reascnable

expectations of adjudication on the merits."

Zemonick v. Consolidated Coal Company, 103 LC

11,492 (4th Cir. 1985). The 9th Circuit has

also refused to apply DelCostello

retroactively based upon the Chevron analysis.

Edwards v. Teamsters Local Union 36, 719 F.2d

560 (9th Cir. 1984). Reyes Barina v. Gulf

Trading and Transportation Co., 100 L.C. 10,

821 (9th Cir. 1984).

n14-

However, other Circuits have approved

retroactive application of DelCostello.

Graves v. Smith's Transfer Corp., 736 F.2d 819

(1st. Cir. 1984); Edwards v. Sea-Land Service,

Inc., 720 F.2d 857 (5th Cir. 1983); Rogers v.

Lockland-Georgia Co., 720 F.2d 1247 (iith Cir.

1983); Lincoln v. District 9, IAM 99 LC ‘10,665

(8th Cir. 1983); Perez v. Dana Corp., 718 F.2d

581 (3rd Cir. 1983).

Using the test articulated in Chevron, a

number of Courts had refused to give the

earlier Mitchell decision retroactive

application: Kennard v. United States Postal

Service, Inc., 531 F.Supp. 1139 (E.D. of Mich.

1982); Engelsburag v. Transcon Lines, 530

F.Supp. 628 (W.D. of Wash. 1982); Tally v.

U.S. Postal Service, 532 F.Supp. 786 (D. of

Minn. 1982); Singer v. Flying Tiger Line,

Inc., 652 F.2d 1349 (9th Cir. 1981) and

McFarland vs. International Brotherhood of

Teamsters, 535 F.Supp. 970 (N.D. of Texas

1982).

-

Whether or not a judical decision should

be accorded retroactive or merely prospective

effect is an issue that arises over and over

again. The numerous pronouncements of the

various federal courts in DFR cases, in the

wake of Mitchell and DelCostello, will have a

profound impact on the development of the

Chevron doctrine. Unless this Court takes this

opportunity to speak, the law will remain in

hopeless confusion.

CONCLUSION

The Court below disregarded the rule of

Chevron Oil vs. Huson, causing an inequitable

dismissal on the eve of trial, after many

years of expensive litigation.

Each of the Chevron factors favor

Petitioner. DelCostello established a new

unpredicted rule of law. Prospective only

application of DelCostello will further the

purposes of the rule. Petitioner invested

=)

substantial time, money, and energy in

justifiable reliance upon a lengthy statute of

limitations. It would be unconscionable to

destroy his reasonable expectations.

Retroactive application would deny Petitioner

his “day in Court", and cause extreme harship

and produce a gross injustice.

The decisions of the Courts of Appeals

vary. The Chevron rule is in disarray and

needs clarification. Review on certiorari is

therefore necessary.

Respectfully -submitted,

i a zZ

Paul H. Tobias

TOBIAS & KRAUS

911 Mercantile Library Bldg.

414 Walnut Street

Cincinnati, Ohio 45202

(513) 241-8137

Attorney for Petitioner

oi Be

APPENDIX "A"

No. 83-3717

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WOODROW MAUGET

Plaintiff-Appellant

)

)

)

)

V. ) ORDER

)

KAISER ENGINEERS, INC.; )

)

Defendants-Appellees )

BEFORE: ENGEL and JONES, Circuit Judges; and

CELEBREZZE, Senior Circuit Judge

This Ohio plaintiff appeals from a district court

judgment dismissing his suit filed under §301 of the

Labor Management Relations Act, 29 U.S.C. §185,

charging his company with illegally discharging him in

violation of the collective bargaining agreement, and

charging his union with unfair representation and

unlawful refusal to refer him to other work.

The plaintiff filed his suit on December 7, 1978

approximately twenty-two months after the union chose

not to process his grievance. The district court

ultimately dismissed plaintiff's suit pursuant to

itn

'S S@Se S8@SE BSE SE REE EE EE EE

DelCostello v. Teamsters, 462 U.S. 151 (1983), for

being filed beyond the six month time period contained

in §10(b), of the National Labor Relations Act, 29

U.S.C. §160(b). On appeal, the plaintiff argues that

DelCostello should not be applied retroactively to bar

his case.

Subsequent to the district court's decision, this

Court decided in Smith v. General Motors Corp., 747

F.2d 373 (6th Cir. 1984) (en banc), that the

DelCostello decision shall be applied retroactively to

all hybrid §301 suits. See also Shapiro v. Cook,

United, Inc. F.2d , Slip op. 83- 3087 (6th

Cir. May 17, 1985) (per curiam). It is also clear that

DelCostello applies to bar plainitff's claim charging

the union with unlawful refusal to refer him to other

work because this claim is essentially a charge of

unfair labor practice which, therefore, necessarily

implicates important national policies favoring rapid

resolution within six month time period contained in

§10(b) of the National Labor Relations Act. See a

v. United Steelworkers of America, 723 F.2d 837 (11th

Cir.), cert. denied, 105 S.Ct. 3517 (1984).

=

se S&S eegegPteeeaeegeiiigaik ©

For these reasons, this panel unanimously agrees

that oral argument is not necessary in this appeal.

Rule 34(a), Federal Rules of Appeilate Procedure. The

district court's judgement is, accordingly, affirmed

pursuant to Rule 9(d)(3), Rules of the Sixth Circuit.

?

ENTERED BY ORDER OF THE COURT

Clerk

Dus

APPENDIX "B"

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

WOODROW MAUGET ; No. C-1-78-768

Plaintiff :

vs. :

KAISER ENGINEERS, INC., : OPINION AND ORDER

et. al.

Defendants

SPIEGEL, J.:

This case, brought pursuant to §301 of the Labor

Management Relations Act (LMRA), 29 U.S.C. §185, is

before the Court on the motions for summary judgement

filed by defendant Kaiser (doc.31) and defendant

Pipefitters (doc. 29). Plaintiff has filed memoranda

contra to these original motions (doc. 33, 34) and both

defendants filed memoranda in reply (docs. 37, 39).

Subsequently, supplements to the summary judgment

motions were filed by defendant Kaiser (doc. 48) and

defendant Pipefitters (doc. 49). Plaintiff filed a

memorandum contra (doc. 51) to which both defendarts

replied (docs. 53, 54). Plaintiff then, with leave of

os

Court, filed an additional memoranda contra. Both

defendant Kaiser (doc. 55) and defendant Pipefitters

(doc. 56) responded in reply.

Plaintiff alleges that in December of 1976

defendant Kaiser terminated his employment at a Moscow,

Ohio construction site without just cause and in

violation of the applicable collective bargaining

agreement. Plaintiff further alleges that the

defendant Pipefitters, signatories to the

aforementioned collective bargaining contract, failed

to fairly represent plaintiff in his attempts to secure

reinstatement with defendant Kaiser and, in addition,

unfairly refused to refer plaintiff for other

employment. .

Defendant Kaiser has moved for summary judgment

on three grounds. First, that the applicable

collective bargaining agreement does not contain a

prohibition against discharges without just cause.

Second, that the present action, in light of United

Parcel Services v. Mitchell, 451 U.S. 56 (1981) and

Badon v. General Motors Corp., 679 F.2d 93 (6th Cir.

1982), is barred by the appropriate Ohio statute of

«22.

'Se gece &®&8 42884 6° 2° 2°

limitations. Third, that the statute ot frauds bars

plaintiff's -reliance on implied or oral contractual

agreements.

The union beleives summary judgment is warranted

because no genuine issue of material fact exists

regarding the union's good faith in representing

plaintiff at all times following the disputed discharge

and, alternatiively, that the present action is time

barred.

Both defendants argue that we should follow the

principle of United Parcel Service v. Mitchell, 451

U.S. 56 (1982) and apply the 90 day limitation found in

the Ohio arbitration statute, O.R.C. §2711.13, or the

six month limitations contained in §10(b) of the

National Labor Relations Act (NLRA), 29 U.S.C. §160(b).

The defendants correctly note that both the Sixth .

Circuit and Courts throughout the Southern District of

Ohio have applied Mitchell to actions arising prior to

the date of decision. Badon v. General Motors Corp.,

679 F.2d 93 (6th Cir. 1982); Hudson v. Teamsters Local —

957, No. C-3-80-529 (S.D. Ohio Mar. 23, 1982, Rice,

J.); Taylor v. Spector Freighting System, Inc., No. C-

Pp > wae

2-78-1227 (S.D. Ohio Feb. TT, 1982, Kinneary, J.)3

Lawson v. Teamsters Local 100, No. C-1-77-324 (S.D.

Ohio Oct. 15, 1981, Hogan, J.); D'Andrea v. American

Postal Workers, No. C-1-78-520 (S.D. Ohio Aug. 4, 1981,

Spiegel, J.) Nevertheless, another Sixth Circuit panel

has discussed the limitations issue and did not give

Mitchell retroactive application. Newton v. Electrical

Workers Local 801, No. 81-3045 (6th Cir. Aug. 4, 1982).

We must emphasize that in both Badon and our decision

in D'Andrea, the issue of retroactivity was not fully

briefed and argued. For that reason, those decisions

do not control the disposition of the limitations issue

in the instant action. In addition, our careful

reading of Newton leads us to conclude that the

retroactivity of Mitchell was similarly not at issue

before that particular panel of the Circuit. Each

party to the instant action, however, has briefed the

issue of Mitchell's application in a vigorous and

competent fashion. Accordingly, we will now address

the issue of Mitchell's application consistent with

federal law regarding retroactive application of civil

rules of decision.

= 7 =

The instances where noncriminal and

nonconstitutional decisions are applied prospectively

only are extremely rare. The determination of whether

to so limit a particular decision's application

involves the equitable balancing of several factors.

Among these are whether the Supreme Court's decision

surprised counsel in that it either overruled well

established precedent or decided an issue of first

impression which was subject to rational disagreement

and the ultimate resolution of which could not be

foreseen. Chevron Oil Co. v. Hudson, 404 U.S. 97, 106

(1971) citing danover Shoe v. United Shoe Machinery

Corp., 392 U.S. 481, 496 (1968); Allen v. State Board

of Educations, 393 U.S. 544, 572 (1969). The court

should also consider the policies served by che

decision and determine whether non-retroactive

application will impede the promotion of those

policies. Chevron Oil at 106-107 citing Linkletter v.

Walker, 381 U.S. 618, 629 (1965). In addition, the

Court should consider whether retroactive application

would produce substantial injustice or hardship.

Chevron Oil, at 107 citing Cipriano v. City of Houma,

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395 U.S. 701, 706 (1969). Because the determinative

process is essentially equitable, we deciine to

consider these factors in a mechanical fashion.

Rather, we must decide whether the weight of these

facts tips substaritially in favor of prospective

application. But see, Cochran v. Birkell, 651 F.2d

1219, 1223 n.8 (6th Cir. 1981) quoting Valencia v.

Anderson Brothers Ford, 617 F.2d 1278, 1289 (7th Cir.

1980) (All three Chevron Oil factors must favor

prospective-only application).

Plaintiff argues with a great amount of

persuasion that the lawsuit was filed nearly two years

after plaintiff's discharge in reliance on settled case

law in this Circuit. The Sixth Circuit had

consistently held that hybrid §301 actions against

employers for breach of contract and union for breach

of the duty of fair representation sound in tort. In

accordance with the Supreme Court's decision in United

Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696

(1966), that Courts should apply the most analogous

state statute of limitation, the Sixth Circuit had

applied Michigan's three year statute of limitations

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based on liabilities created by statute was

appropriate. Thus, at the time the present suit was

filed, counsel was warranted in believing that the

appropriate Ohio statute of limitations was either the

six year limitations period for bliss tikka Ceeted by

statute contained in O.R.C. §2305.07, or the two year

period for actions for injuries to person or property

contained in O.R.C. §2305.10. Because application of

Mitchell wotld result in dismissal of plaintiff's

action, retroactive application would thus unfairly

punish plaintiff for his justifiable reliance on

settled Sixth Circuit law.

We are aware of at least one other obvious

indicia of unfairness that would result from Mitchell's

retroactive application. Depriving plaintiff of his

day in Court, through no foreseeable fault of his own,

is inconsistent with the body of federal labor law

|

for actions involving injury to person or property.

Smart _v. Ellis Trucking Co., Inc., 500 F.2d 215 (6th

Cir. 1978). In Gray v. Asbestos Workers Local 51, 416

F.2d 313 (6th Cir. 1969) the Sixth Circuit found that

Kentucky's five year limitations statute for actions

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which sought to protect the rights individual union

members won through collective bargaining against

arbitrary treatment by statutorily recognized

bargaining representatives. The Supreme Court, from

Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192

(1944) to Vaca v. Sipes, 386 U.S. 171 (1967) has

recognized that the best means of protecting these

rights is to provide an effective method for their

vindication. Should we apply Mitchell and dismiss

plaintiff's suit, we would push this effective method

of vindication beyond plaintiff's grasp.

In addition to considering the inequities caused

by retroactive application, Chevron Oil counsels that

we must identify the policies underlying the Supreme

Court's decision in Mitchell and determine whether

non-retroactive application would impede the promotion

of these policies.

In likening a hybrid §301 action to an action to

vacate an arbitration award, thereby calling for the

application of the short statute of limitations

governing such actions, the Mitchell Court stated that

_ short limitations periods promote the "relatively rapid

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disposition of labor disputes." 451 U.S. at 63 quoting

United Auto Workers v. Hoosier Cardinal, 383 U.S. 696,

707 (1966). As the Mitchell Court noted, swift

resolution of labor disputes is a fundamental policy of

federal labor law. This policy is reflected throughout

the text of the NLRA. In §? Congress detailed the

obstruction and burdens upon commerce caused by labor

disputes. In order to lessen the destructive effect of

such burdens and obstructions, Congress sought to

ensure expedited resolution of labor disputes in §

10(b) by creating a short six month statute of

limitations for unfair labor practice charges.

Non-retroactive application of Mitchell in the

instant action would frustrate this fundamental policy.

Rather than eliminate the deleterious effect of a labor

dispute by encouraging immediate action to vindicate

disputed rights, non-retroactive application would here

only permit the underlying controversy to remain at

issue.

In addition, the Mitchell Court beleived that

application of short limitaitons statutes to §301

actions assists in affording finality to decisions

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generated by the grievance resolution procedures

created through collective bargaining. 451 U.S. at 63.

The policy favoring private resolution of labor

disputes is perhaps the most fundamental in federal

labor law. Steelworkers v. Enterprise Wheel & Car

Corp., 363 U.S. 593 (1960); Steelworkers v. Warrior &

Gulf Navigation Co., 363 U.S. 574 (1960); Steelworkers

v. American Manufacturing Co., 363 U.S. 564 (1960).

The NLRB also prefers private resolution of labor

disputes, and despite the extent of its expertise and

jurisdiciton, has a settled policy of accomodating

decisions rendered by private procedures. Collyer

Insulated Wire, 192 NLRB 837, 77 LRRM 1931 (1971),

Spielberg Manufacturing Co., 112 NLRB 1080, 36 LRRM

1152 (1955). Indeed, Congress has made this policy

part of the United States Code. 29 U.S.C. §173(d)

provides:

Final judgment by a method agreed upon by

the parties is hereby declared to be the

desirable method for settlement of

grievance disputes arising over the

application or interpretation of an

existing collective bargaining agreement.

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to the collective bargaining agreement, anything which

draws the finality of such decisions into question

disruptes the legitimate expectations of the parties

and their understanding of the rights and duties

created by agreement. For example, judicial

interpretation of a collective bargaining agreement in

a §301 suit filed three years after the disposition of

the grievance in question might so alter the parties'

understanding of their rights as to render the last

three years of harmonious "industrial self-government"

meaningless. 451 U.S. at 64. For this reason,

Mitchell requires those persons objecting to the

ultimate disposition of a griévance or the faimrmess of

the process itself to do so within a relatively brief

time.

In order to encourage management and labor to utilize

bargained for grievance resolution procedures,

decisions from such procedures must be afforded a great

degree of finality. Because the ongoing process of

private grievance resolution gives content and meaning

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Non-: 2troactive application of Mitchell in the

case at bar would unduly obstruct the policy of

affording finality to the private grievance resolution

process. Considering the importance of promoting this

policy and the policy favoring swift resolution of

labor disputes, w> cannot state with the requisite

degree of convic -ion that the obvious inequities to

plaintiff arising from application of Mitchell weigh

substantially in favor of prospective only application.

Accordingly, we rule that Mitchell controls in the

present case.

Our review of two recent Sixth Circuit opinions

Newton v. Electrical Workers, Local 801, No. 81-3045

(6th Cir. Aug. 4, 1982) and Badon v. General Motors

Corp., 679 F.2d 93 (1982) forces us to conclude that

plaintiff's claim for wrongful discharge against

defendant Kaiser and for unfair representation in

connection with the defendant Pipefitter's handling of

plaintiff's discharge grievance are time-barred.

In construing Mitchell, the Badon Court held that

in §301 actions brought in this Circuit, the state

statute of limitations pertaining to vacation of

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arbitration award is, in most circumstances,

appropriate. The arbitration limitations period

applies in all situations where the employment decision

which is the subject matter of the §301 suit has become

final through the operation of a collectively

bargained-for dispute resolution process. 679 F.2d at

98. The Badon Court did fashion one exception to the

applicability of the arbitration limitations period.

When a state, in enacting the arbitration statute,

enunciates a clear policy of excluding labor disputes

from the state system of vacation of arbitration

awards, federal courts must recognize that policy and

apply the six month limitation period contained in NLRA

§10(b). 29 U.S.C. § 160(b). 679 F.2d at 99.

We hereby rule that the 90 day limitation period

provided for vacation of arbitration awards contained

in O.R.C. § 2711.13 applies to the claims against

defendant Kaiser and the unfair representation claims

against the defendant Pipefitters which concern the

handling of plaintiff's grievance. Unlike the Michigan

statute before the Badon Court, Ohio has not enunciated

a clear policy of excluding labor disputes from the

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vacation of arbitration awards under O.R.C. § 2711.13

Moreover, although the disputed dishcarge in the

present case was not submitted to arbitration, the

discharge became final after the union chose not to

pursue the grievance through the procedures created by

the collective bargaining agreement. As the Badon

Court emphasized, the applicability of the arbitration

limitations period depends only on whether the parties

have agreed upon a system to settle disputes among

themselves. The Court stated:

It is not arbitration per se that federal

policy favors, but rather final judgment of

differences by a means selected by the

parties.

679 F.2d at 98, quoting U.M.W. v. Barnes & Tucker Co.,

561 F.2d 1093, 1096 (3d Cir. 1977).

In holding the 90 day vacation of arbitration

awards statute applicable, we are not unaware of the

Sixth Circuit's recent opinion in Newton v. Electrical

Workers Local 801, No. 81-3045 (6th Cir. Aug. 4, 1982).

In Newton, the Court held that it was not error for the

District Court in 1979 to dismiss a §301 claim against

an employer and union on the basis of Ohio's six year

limitations period. For liabilities created by

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statute. We note here, however, that the issues before

the Newton Court was whether the District Court should

have applied a longer limitations period. The Court

only decided that the District Court, at the time of

the decision, did not err in applying a shorter

limitiatons period than that requested by the

plaintiff. The Court did not address the question that

we decide here today, viz, in light of Mitchell, what

is the most appropriate Ohio statute of limitations in

hybrid § 301 actions, however, does not mean that

plaintiff's entire suit is time-barred. Plaintiff has

alleged that the Defendant Pipefitters represented

plaintiff unfairly in matters unrelated to defendant

Kaiser's alleged wrongful discharge. In particular,

plaintiff claims that the Defendant Pipefitters'

refused to refer plaintiff out of the union hiring

hall after the original discharge decision became

final. This claim, which involves only the plaintiff

and defendant union, is not subject to the grievance

procedure of the collective bargaining contract. This

unrelated claim is therefore not governed by the 90 day

limitations period of O.R.C.

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§ 2711.13. Because this claim involves an alleged

breach of a duty implied from the union's statutorily

authorized status as plaintiff's collective bargaining

representative, we believe, consistent with Newton,

that the action arising out of the defendant

Pipefitters' referral practices is governed by the six

year limitations period for liabilities created by

statute contained in O.R.C. §2305.07.

Accordingly, the motion of defendant Kaiser for

summary judgment is granted. The motion of the

defendant Pipefitters for summary judgment is granted

in part. The motion is denied as to plaintiff's claims

concerning the defendant Pipefitters' referral

practices occurring after the discharge became final.

The defendant Pipefitters, however, contend that

summary judgment is warranted on the remaining unfair

representation claim on an additonal ground. The

defendant Pipefitters argue that plaintiff's failure to

comply with known procedures made plaintiff ineligible

for referral.

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Plaintiff, on the other hand, claims full

compliance with the hiring hall procedures. In support

of this contention, plaintiff points to several

passages from his deposition which indicate compliance.

The defendant Pipefitters, however, have noted two

instances where plaintiff contradicts this testimony.

We have reviewed the substance of these passages and

are forced to conclude that an issue of fact exists as

to whether plaintiff complied with the referral

procedures. We reach this conclusion because under

Rule 56(c) Fed.R.Civ.P. we must consider the evidence

and all the inferences in a light most favorable to

plaintiff. Smith v. Hudson, 600 F.2d 60 (6th Cir.)

cert. dismissed 444 U.S. 986 (1979); Watkins v.

Northeastern Ohio Tractor Pullers Association, Inc.,

630 F.2d 1155 (6th Cir. 1980). Accordingly, summary

judgment on the remaining claim is not appropriate ad

must be denied.

SO ORDERED.

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; > ’

S. Arthur Spiegel

United States District Judge

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APPENDIX "Cc"

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

WOODROW MAUGET : NO. C-1-78-768

Plaintiff :

VS. :

KAISER ENGINEERS, INC., : OPINION AND ORDER

et. al GRANTING MOTION TO

Defendants : DISMISS OF DEFENDANT

PIPEFITTERS LOCAL

NO. 392

SPIEGEL, J.

This matter came on for consideration of the

motion of defendant Pipe Fitters Local No. 392 (doc.

79) to dismiss, plaintiff's memorandum in opposition

(doc. 80), and defendant Pipe Fitters’ reply (doc. 81).

the basis for defendant's motion to dismiss is the

Gecision of the United States Supreme Court in

DelCostello v. International Brotherhood of Teamsters,

et. al., Case No. 81-2386 and United Steel Workers of

America v. Donald C. Flowers and King E. Jones, Case

iw.. 81-2408, issued June 8, 1983, holding that the six

months' limitations period of Section 10(b) of the

eft

National Labor Relations Act is the statute of

Limitation§ applicable to an unfair representation

claim by an employee against a union. Heretofore in

this case, we held that plaintiff's remaining claim

against his Local for failing to refer plaintiff out of

the Union Hiring Hall after the original dishcarge

decision became final was governed by the Ohio six-year

limitations period provided for in Section 2305.07,

O.R.C. Defendant contends that the Supreme Court’s

decision establishing the six-month limitation period

is applicable and binding on this Court.

Plaintiff responds that the aforesaid Supreme

Court decisions should not be applied retroactively,

citing Pitts v. Frit-O-Lay, 700 F.2d 330 (6th Cir.

1983). Pitts applied the factors set forth in Chevron

Oil v. Hudson, 404 U.S. 97 (1971) regarding

retroactivity and concluded that the six month statute

of limitations established in response to United Parcel

Service v. Mitchell, 451 U.S. 56 (1981), not be given

retroactive effect. However, we are persuaded by the

reasoning of the defendant in its reply brief (doc.

81), which points out that Pitts was decided before

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DelCostello. Further on the same date tha* Pitts was

decided, the Sixth Circuit also affirmed D‘Andrea v.

American Postal Workers, Case No. 81-3548, F.2d

, 1983, which dismissed plaintiff's §301 action because

it was not filed within the time required by the Ohio

statute of limitations set forth in O.R.C. § 2711.13,

providing for a three months' period within which a

motion to vacate an arbitration award must be filed.

In that case, D'Andrea had waited three years after the

arbitration decision to commence the §301 action.

D'Andrea was decided in the District Court after

Mitchell, which held that where a discharged employee

brings a §301 suit against his employer for breach of

the collective bargaining agreement following an

adverse arbitration award and against hi's Union for

breach of the duty of fair representation, the action

should be characterized as one to vacate an arbitration

award. The District Court applied Mitchell

retroactively in D'Andrea and the Sixth Circuit

affirmed. To similar effect, see Lawson v. Truck

Drivers, 698 F.2d 250 (6th Cir. 1983), which held that

Mitchell applies retroactively to pending cases.

So

Further, under the Chevron analysis concerning

retroactivity, we conclude that DelCostello may be

applied retroactively. The policy of federal labor

always has been swift resolution of disputes. To the

extent that DelCostello requires quick filing of

complaints, it establishes no new principles of law or

overrules clear past precedent. Rather, it clarfies an

ambiguity and we do not believe it is unjust to apply

it retroactively in this case.

Accordingly, it is the conclusion of the Court

that defendant's motion to dismiss should be granted.

It is hereby ordered that defendant's motion to dismiss

is granted and defendant Pipe Fitters Local No. 392 is

hereby dismissed from this action. Because theese are

no remaining defendants, this case is hereby dismissed.

SO ORDERED.

S. Arthur Spiegel

United States District Judge