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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 474 U.S. 1057

## Text

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,

-BS-

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

-B6-

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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ii -B7-

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

-B8-

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

-B9-

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.

-B10-

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

7

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‘

-B11-

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

wht Da

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

-B13-

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

-B14-

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.

-B15-

§ 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.

-B16-

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.

-B17-

; > ’

S. Arthur Spiegel
United States District Judge

-B18-

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

-C2-

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0964%3A1. Public record. Not legal advice.