Petition for Writ of Certiorari — Edwards v. International Union

, Supreme Court, U.S.

(\V) FILED

941913 MAY 221995

No. OEFICE OF THE CLERK

HAIRCARE EERE ERE EERE REREREER

In The

SUPREME COURT OF THE UNITED STATES

KREKKRERRERRRREEREREER

October Term, 1994

JERRY L. EDWARDS,

Petitioner,

vs.

INTERNATIONAL UNION, UNITED PLANT GUARD

WORKERS OF AMERICA (UPGWA) and Its

AFFILIATED LOCAL 796,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

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JACK MARWOOD SHORT

Counsel of Record

1709 Utica Square, Suite 230

Tulsa, OK 74114-1420

918/744-8000

R. Forney Sandlin

P.O. Box 0791

Muskogee, OK 74402-0791

918/683-5513

Attorneys for Petitioner

May 1995

QUESTIONS PRESENTED

1. This suit by Edwards against his

Union for breach of its duty of fair re-

presentation was dismissed as barred by

the six-month limitation period estab-

lished by DelCostello v. International

Brotherhood of Teamsters, 462 U.S. 151

(1983): but, did the Union's unsuccess-

ful §301 suit against the employer to va-

cate the arbitrator's dismissal of Ed-

wards’ grievance distinguish this suit

from a hybrid and bring it within Okla-

homa's two-year statute of limitations;

and, should DelCostello be reconsidered

by this Court?

2. Was the six-month limitation per-

iod, if applicable, equitably tolled by

the Union's breach of its fiduciary duty

to inform Edwards of his legal rights, in-

cluding his right to sue the Union; and,

by not responding to Edwards' four (4) de-

mand letters?

TABLE OF CONTENTS

Page

Questions Presented.......-e. Sebosee i

Table Of Contents and Authorities.... ii

Opinions Below....cceccccccsceseveves 1

Statement of Jurisdiction........ee0- 2

Statement of the Case with Facts..... 3

Reasons For Granting The Writ........ 12

The six-month limitation period es-

tablished by DelCostello for filing

a hybrid lawsuit is unfair to union

members because it's esoteric, too

long and difficult to determine. 12

COMBEMELON s 6 ce ccc cece sc cebetscoreese 16

TABLE OF AUTHORITIES

Cases Cited:

DelCostello v. International Brother-

hood of Teamsters, 462 U.S. 151, 103

C.Ct. 2281, 76 L.Ed.2d 476 (1983)

aves Cvew ve ha es Fa es Ok Sos 28s £5, 46

Reed v. United Transportation Union,

BGS Ucos Base 20S &-Ct. SZ1, 102 L.

a eS 7 ee are 7

Statutes Cited:

ge RE oo. | ye RES a ere 2

ee I Se iss Wi du ve edb eee We i3, 16

ee es ee os au wh eae so ‘ 3

ii

Other Authorities Cited:

Podgers, Matters of Timing, A.B.A.J.,

May, 1299s, VObe Gag BE Desiecccsves nas. oe

Stein, 10(b) or Not 10(b): A Critical

Overview of Court-Selected Limitation

Periods In Labor Law, 6 Lab. Law 331

(LPO sl eceees o6n6400606006460408 0060% 11

28 U.S.C.A. § 1658, Commentary by

David D. Siegel, "No Retroactivity",

@. S8hassssieassss7rsebenles eee 16

APPENDIX

Appendix A - January 31, 1995 Tenth

Circuit Opinion, 46 F.3rd 1047 (10th

Cir. 1995), Judgment same date...... la

Appendix B - December 14, 1993 Dis-

CEALCE Court Bee tAlOOs ob cic us hei obo és 33a

Appendix C - February 23, 1995 Tenth

Circuit Order Denying Petition For

ROMPRSIOR « 6.6 4086048 d6 need eke naee 46a

iii

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

Jerry L. Edwards respectfully petitions

for a writ of certiorari to review the judg-

ment of the United States Court of Appeals

for the Tenth Circuit in this case.

OPINIONS BELOW

The opinion by the Tenth Circuit Court

of Appeals, affirming the trial court's

dismissal of Petitioner's Complaint is re-

ported. Edwards v. International Union,

UPGWA, 46 F.3d 1047 (10th Cir. 1995) (App.

A, la-32a).

The opinion and final judgment by the

United States District Court for the Eas-

tern District of Oklahoma, dismissing Pe-

titioner's Complaint On Unions’ Breach Of

Duty Of Fair Representation is unreported.

Edwards v. International Union, et al.,

Case No. 93-455-NJ, entered December 14,

1993. (App.B, 33a-45a).

STATEMENT OF JURISDICTION

The jurisdiction of this Court is in-

voked on the following grounds:

January 31, 1995, is the date of entry

of the judgment by the United States Court

of Appeals for the Tenth Circuit in accor-

dance with its opinion of the same date.

It is the judgment sought to be reviewed.

February 23, 1995, is the date of en-

try of the Tenth Circuit Order denying the

Petitioner's petition for rehearing.

Title 28 U.S.C.§ 1254(1), provides in

pertinent part:

Cases in the courts of appeals may be

reviewed by the Supreme Court by the fol-

lowing methods:

(1) By writ of certiorari granted up-

on the petition of any party to any

civil or criminal case, before or af-

ter rendition of judgment or decree;

which Petitioner believes is the statutory

provision conferring jurisdicion on this

Court to review the judgment in question

by writ of certiorari.

STATEMENT OF THE CASE

This Petition seeks review of a judg-

ment by a United States Court of Appeals

wherein the United States District Court

for the Eastern District of Oklahoma, the

court of first instance, was vested with

jurisdiction by Section 301 of the Labor

Management Relations Act of 1947, 29 U.

S.c.§ 185.

Jerry Edwards was employed by Trover

Security Services, Inc. (Trover) as a se-

curity officer assigned to the McAlester

Army Ammunition Plant, McAlester, Oklahoma

with which Trover was under contract to

provide security service. On June 28, 19-

91, Trover fired Edwards, claiming he was

sleeping on duty. The UPGWA and Trover

are parties to a collecltive bargaining

agreement containing a grievance procedure

for union members. Edwards was a union

member when fired. The Consitution and

By-Laws of UPGWA designate the unions as

exclusive agents of its members on employ-

ment matters.

On July 1, 1991, the UPGWA timely fi-

led a grievance protesting Edwards’ dis-

charge which Trover denied; then on July

23, 1991, UPGWA notified Trover it intend-

ed to seek arbitration.

Five months later, on December 23, 19-

91, UPGWA selected an arbitrator to which

Trover agreed, reserving an objection that

the selection was untimely.

On February 14, 1992, the arbitrator

conducted an evidentiary hearing; but, on

Mar_-h 26, 1992, he dismissed the grievance

holding the five month delay by the unions

in selecting the arbitrator was untimely.

He did not rule on the merits.

On June 22, 1992, the UPGWA and its

Affiliate Local 796 (hereafter Union) fi-

led a Complaint against Trover in the Uni-

ted States District Court for the Eastern

District of Oklahoma, Case No. Civ-92-378-S

to vacate the arbitration award and order

a decision on the merits of the grievance.

On October 28, 1992, the district court

entered its order refusing to vacate the

arbitration award.

Counsel for the Union in that action,

which is the same firm representing it in

this action (Gregory, Moore, Jeakle, et

al., Detroit, MI), mailed a copy of that

court order to Mr. Edwards. The Union did

not appeal that order nor did it or its

counsel inform Mr. Edwards of his legal

rights, including a possible cause of ac-

tion against the Union for breach of duty

of fair representation (BDFR) with a six-

month statute of limitations.

Mr. Edwards retained legal counsel,

who, on November 28, 1992, mailed a letter

to Mr. Eugene McConville, President, In-

ternational Union, in Roseville, MI, cl-

aiming money damages for Edwards' losses

caused by the Union's BDFR, requesting a

reply by December 21, 1992.

ne

ee ewee-es wews Oe

There was no response; so, on December

23, 1992, he mailed a follow-up letter;

another follow-up on March 29, 1993; and,

8 final follow-up on May 7, 1993(certified

return yeceipt requested and received).

In ta written decision, the arbitra-

tor wrote that the Union stated its delay

was due to the grievance being circulated

by the regional and national union office,

then sent to counsel for review. Edwards

assumed his letters were receiving similar

treatment.

When he'd had no response at all from

the Union president, Edwards’ lawyer, Jack

Short, filed his Complaint on July 6, 1993.

On July 13, 1993, Scott Brooks, Union

lawyer, faxed a letter to Short asserting

DelCostello v. International Brotherhood

of Teamsters, 462 U.S. 151 (1983) estab-

lished a six-month statute of limitations

barring this action and requested its dis-

missal with a threat of sanctions.

On July 15, 1993, Short faxed a res-

ponse to Brooks citing Reed v. United

Transportation Union, 488 U.S. 319 (1989)

for its explication of DelCostello being

a narrow exception to the general rule

that state law is the norm for borrowing

limitation periods. And, contending this

is a straight-forward action against the

Unions akin to an action for legal mal-

practice which has a two (2) year limita-

tion period in Oklahoma. Petitioner de-

clined the request to dismiss his case and

again suggested negotiating a settlement.

On July 29, 1993, the Union filed a

Motion To Dismiss with a brief in support

contending DelCostello established a six-

month statute of limitations for hybrid

lawsuits alleging breach of the duty of

fair presentation by the union and/or bre-

ach of contract by the employer; so this

action is time-barred because it was filed

eight (8) months after this cause accrued.

On August 5, 1993, Petitioner filed a

Response to the Union's motion to dismiss

asserting DelCostello applies only to hy-

brid §301/fair representation suits and it

doesn't apply here because this is an ac-

tion against the Union only for breach of

duty of fair representation. Further, Ar-

ticle VI, Section 14 of the Constitution

of the UPGWA imposes a fiduciary duty on

the Union to inform Edwards of all of his

legal rights including that Edwards had a

cause of action against the Union for bre-

ach of duty of fair representation with a

six-month statute of limitations, in their

Opinion. Failure to do so tolled the six-

month or any statute of limitation inde-

finitely. And, the Union's failure to re-

spond to any of petitioner's four (4) de-

mand letters breached that fiduciary duty

and tolled any applicable statute of li-

mitations. Petitioner contends these as-

sertions are extensions or modifications

of the federal equitable tolling doctrine.

Petitioner also asserted the Oklahoma

two (2) year statute of limitations for

legal malpractice applied here and this

action was filed well within it.

On August 13,1993, the Union replied:

this is a hybrid suit even though the ac-

tion is only against the Union because Ed-

wards could have joined Trover, his emplo-

yer, as a defendant.

On December 14, 1993, the trial court

granted the Union's motion to dismiss on

findings that this is a hybrid §301/fair

representation suit and "The Union's al-

leged failure to inform plaintiff of the

six-month limitation period and its alleg-

ed failure to respond to plaintiff's de-

mand letters simply do not affect plain-

tiff's claim for breach of duty of fair

representation in connection with the

timely prosecution of his grievance. In

sum, plaintiff cannot unilaterally extend

the limitation period by alleging omissions

on the part of the Union which are not re-

lated to the duty of fair representation

claim asserted in his complaint." (App.B,

44a).

On December 21, 1993, petitioner filed

a motion for the court to reconsider its

Order, pointing out the Union's §301 suit

against Trover, his employer, on his be-

half, to vacate the arbitrator's decision

distinguishes this case from a hybrid §301

fair representation suit because it fore-

closed Edwards from bringing another §301

Suit against Trover; hence, the two-year

statute of limitations applies.

On February 8, 1994, the trial court

denied Edwards’ motion to reconsider and

he timely appealed to the Tenth Circuit

presenting two issues:

1. The fact the Union filed and lost

a separate §301 suit against Trover on

his behalf precluded him from filing

another §301 claim against Trover and

that fact distinguishes this case from

a “hybrid” §301/unfair representation

action with a six-month statute of limi-

tation period from the LMRA.

10

le lt Ee

2. If the six-month statute of limita-

tions does apply, it was tolled by the

Union's breach of its fiduciary duty to

(1) inform him of his right to sue after

his grievance was dismissed for ‘en's

untimely selection of an arbitrat and

(2) Union's failure to respond to is

four demand letters. (App. A, 7a-8a)

On January 31, 1995, the Tenth Circuit

entered its opinion and judgment affirming

the trial court's dismissal of Edwards'

Complaint, stating:

Unless and until the Supreme Court or

Congress reconsiders DelCostello, we

are bound to apply § 10(b)*s six-month

statute of limitations to Vaca-type

"hybrid" § 301/unfair representation

claims such as the case before us.

* Various courts and commentators have

suggested DelCostello be reconsidered. See,

e.g., Mark S. Stein, 10(b) or Not 10(b): A

Critical Overview of Court-Selected Limita-

tions Periods in Labor Law, 6 Lab.Law 331

(1990) (questioning propriety of applying

810(b)'s statute of limitations for admin-

istrative claims filed with the NLRB to

civil claims filed in federal district

SUUERE)< 4.6 . (App. A, 22a)

11

ee i

And,

Again construing the record in the

light most favorable to Edwards, we

find these facts do not rise to the le-

vel of “active deception” sufficient to

invoke the powers of equity and toll the

legal limitations period for hybrid ac-

tions set by the United States Supreme

Court in DelCostello. (App. A, 30a-31la)

On February 14, 1995, Edwards filed a

Petition For Rehearing which was denied

February 23, 1995. (App. C, 46a)

REASONS FOR GRANTING THE WRIT

The six-month limitation period esta-

blished by DelCostello for filing a hybrid

lawsuit is unfair to individual union mem-

bers because it's esoteric, too short and

difficult to determine.

The foregoing is dramatically illus-

trated in Podgers, Matters of Timing, A.B.

A.J., May 1995, Vol. 81, at 50, where Del-

Costello is cited in a parenthetical para-

graph as an example of a limitation period

that is difficult to determine.

12

The final paragraph of Podger's arti-

cle shows Congress has seen the error of

its ways, to-wit at 52:

Congress has taken steps, however, to

ease the difficulties for later statutes

in which limitations periods are not stated.

Under 28 U.S.C. §1658, any federal statute

enacted after Dec. 1, 1990, will automati-

cally have a limitations period of four

years when a limitation period is not

otherwise stated. [Civil actions. ]

DelCostello forces union members to

guess on crucial legal issues such as:

When is a claim a hybrid?

Edwards contends the chronology of his

grievance shows he didn’t have a hybrid

claim when he filed this action because

on June 22, 1992, the Union filed a § 301

"Complaint To Vacate Arbitration Award"

against Trover in federal court which ru-

led in favor of Trover on October 28, 19-

92. That §301 suit against Trover on his

behalf is res judicata as to Trover, lea-

ving Edwards with only a BDFR (breach of

duty of fair representation) suit against

the Union having a two-year statute of li-

mitations in Oklahoma.

13

Union's Duty Of Fair Representation

In DelCostello, 462 U.S. 151, 164, n.14

(1983), this Court explained:

The duty of fair representation

exists because it is the policy of the

National Labor Relations Act to allow

a single labor organization to repre-

sent the interests of all employees

within a unit, . « »« « ne auty

stands “as a bulwark to prevent arbi-

trary conduct against individuals st-

ripped of traditional forms of redress

by the provisons of federal labor law."

Vaca, supra, at 162, .. «

Here, the Union dropped Edwards like a

hot potato right after the Court refused

to vacate the abritrator's dismissal of

his grievance---didn't inform him at all

of his legal rights, including his right

to sue the union, nor mention a six-month

statute of limitations.

ln fact tne Union dian't even teii nim

it was dropping him. Edwards had to guess

about that, too.

This Court recognizes the vulnerabil-

ity of the individual union member "In the

labor setting, by contrast, the employee

14

will often be unsophisticated in collec-

tive-bargaining matters, and he will al-

most always be represented solely by the

union." DelCostello, supra, at 166.

To compound an already bad situation

for Edwards, the Union stonewalled all

four of his demand letters seeking to set-

tle this matter.

By granting certiorari, the Court will

have the opportunity to insist labor unions

fully perform their duty of fair represen-

tation by informing members of their legal

rights at every stage of a grievance pro-

cess including any statute of limitations

that might be applicable.

And, the Court will have the opportun-

ity to find the Union's conduct here tolled

any applicable statute of limitations.

Reasons To Reconsider DelCostello

In its opinion herein, the Tenth Cir-

cuit states "Unless and until the Supreme

15

Court or Congress reconsiders DelCostello

- « «3 then, in footnote 3 “Various

courts and commentators have suggested Del-

Costello be reconsidered." (App. A, 22a)

By enacting 28 U.S.C. § 1658, Congress

prospectively eliminated much of the fede-

ral limitations problem. But, it left un-

touched the existing limitations problems.

See 28 U.S.C.A. § 1658, Commentary by David

D. Siegel, “No Retroactivity", p. 241.

The six-month period for an adminis-

strative appeal is too short for a court

action especially when it's created by

caselaw making it elusive even for lawyers.

CONCLUSION

The Court should grant a Writ of Cer-

tiorari to address this important

but troubled area of federal labor law.

The Court is urged to do so.

ctf sisi Lalex

rwood Short OBA #8208

Counsel of Record

1709 Utica Square, Suite 230

Tulsa, OK 74114-1420

918/744-8000

May 1995

16

a ee

APPENDIX A - TENTH CIRCUIT OPINION, 46

F.3rd 1047 (10th Cir. 1995)

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 94-7035

January 31, 1995

JERRY L. EDWARDS, Plaintiff-Appellant,

vs.

INTERNATIONAL UNION, UNITED PLANT GUARD

WORKERS OF AMERICA (UPGWA) and its AFFI-

LIATED LOCAL 796, Defendants-Appellees.

On Appeal From the United States District

Court for the Eastern District of Okla-

homa (D.C. No. Civ-93-455-NJ)

Jack Marwood Short, Tulsa, Oklahoma (R.

Forney Sandlin, Muskogee, Oklahoma, with

him on the brief), for Plaintiff-Appel-

lant.

Scott A. Brooks of Gregory, Moore, Jeakle,

Heinen, Ellison & Brooks, P.C., Detroit,

Michigan (Lisa S. Lane with him on the

brief) for Defendants-Appellees.

BALDOCK and BRORBY, Circuit Judges, and

*KANE, Senior District Judge.

KANE, Senior District Judge.

*Honorable John L. Kane, Jr., Senior U-

nited States District Judge for the Dis-

trict of Colorado, sitting by designa-

tion.

la

a te

Appendix A

Jerry L. Edwards brought this action

against his collective bargaining agent,

United Plant Guard Workers of America and

its affiliated Local 796 (collectively,

the "Union"), alleging the Union breached

its duty of fair representation by mis-

handling his wrongful discharge griev-

ance against his former employer, Trover

Security Svc. ("Trover"). The district

court dismissed the action as barred by

the six-month statute of limitations ap-

plicable to "hybrid" breach of collec-

tive-bargaining agreement/fair represen-

tation claims under the rationale set

forth in DelCostello v. International

Bhd. of Teamsters, 462 U.S. 151 (1983),

and this appeal ensued.

Edwards asserts the district court

erred in characterizing his suit as a

"hybrid" action and contends it more

closely resembles one for legal malprac-

tice to which Oklahoma's two-year sta-

2a

Appendix A

tute of limitations should apply. Al-

ternatively, Edwards argues the Union's

dilatory conduct in processing his grie-

vance and responding to demand letters

he sent after all grievance procedures

were exhausted tolled the running of his

unfair representation claim. For the

reasons set forth below, we affirm.

I. Background

Jerry L. Edwards was an employee of

Trover and a member of the Union until

his discharge on June 28, 1991. The U-

nion and Trover are parties to a collec-

tive bargaining agreement covering the

terms and conditions of employment of

all employees in the bargaining unit.

The agreement incorporates Article VI,

§14 of the Constitution and By-Laws of

UPGWA which describes and governs the

grievance process and "irrevocably" de-

3a

Appendix A

signates the Union "to appear exclusive-

ly and act as [each member's] agent to

represent and bind him in the presenta-

tion, prosecution, adjustment and set-

tlement of all grievances, complaints or

disputes of any kind or character aris-

ing out of the employer-employee rela-

tionship."

On July 1, 1991, the Union timely

filed a grievance on behalf of Edwards

protesting his discharge. On July 23,

1991, the Union notified Trover of its

intent to arbitrate but did not select

an arbitrator until December 23, 1991.

The Union justified the five month de-

lay as having been "due to the grievance

being reviewed by the regional and na-

tional union office .. . [and] then sent

for review by counsel." (Aplt's App. at

14.) Trover agreed to the selection, but

reserved an objection as to its timeli-

ness.

4a

————E

Appendix A

On March 26, 1992 the arbitrator dis-

missed Edwards’ grievance as untimely in

light of the delay between the time the

Union notified Trover of its intent to ar-

bitrate and the time the arbitrator was

actually selected. On June 22, 1992,

still acting exclusively on behalf of Ed-

wards, the Union filed suit against Trover

in the district court (Case No. 92-378-S)

seeking an order vacating the arbitration

award and requiring the arbitrator to con-

sider Edwards’ grievance on the merits.

Trover moved for summary judgment and on

October 28, 1992, the district court up-

held the arbitrator's decision and dismis-

sed the Union's suit.

Edwards was notified of the district

court's decision in early November, 1992

and retained legal counsel. On November

28, 1992, counsel mailed the first of four

letters to the Union claiming money dam-

ages for Edwards’ losses caused by the Un-

5a

APPENDIX A

ion's mishandling of the arbitration pro-

cess. (Aplt's App. at 48-49). The letter

requested payment of a sum certain by De-

cember 21, 1992. Id. After receiving no

response by the requested date, counsel

mailed follow-up letters on December 23,

1992, March 29, 1993 and May 7, 1993. Ed-

wards assumed the delay, like the delay in

selecting an arbitrator, was the result of

the intra-union review process. (Aplt's

Br. at 6.)

Eight months after being notified of

the district court's order denying the Un-

ion's motion to vacate the award, and

still having received no response from the

Union to his demand letters, Edwards filed

suit against the Union for breach of its

duty of fair representation. See Com-

laint, No. 93-455-NJ (filed July 6, 1993)

(Applt's App. at 1-4). Edwards asserted

no claims against Trover in this second

6a

Appendix A

lawsuit, and Trover was not a named defen-

dant.

The Union moved to dismiss Edwards'

Suit on July 29, 1993, asserting it was

barred by the six-month statute of limita-

tions prescribed by §10(b) of the Labor-

Management Relatiors Act (LMRA), applica-

ble to "hybrid" §301/unfair representation

actions under DelCostello. The district

court agreed and entered it Order Grant-

ing Defendants’ Motion To Dismiss on De-

cember 14, 1993. (Aplt's App. at 59-64.)

Edwards’ Motion for Reconsideration was

denied, and the present appeal ensued.

II. Merits

Edwards raises two issues on appeal.

First, he contends the fact the Union fil-

ed, and lost, a separate § 301 suit against

Trover on his behalf precluded him from

filing a §301 claim against Trover and

7a

Appendix A

distinguishes this from a "hybrid" §301/

unfair representation action subject to

the LMRA's six-month statute of limita-

tions. Instead, Edwards argves his suit

more closely resembles a lega: malpractice

action to which Oklahoma's two-year stat-

ute of limitations applies. Second, Ed-

wards claims the six-month limitations

period, if applicable, was tolled by the

Union's breach of fiduciary duty (1) to

inform him of his right to sue after his

grievance was dismissed for untimely se-

lection of the arbitrator; and (2) to re-

spond to his four demand letters.

We review the Union's motion to dis-

miss Edwards’ claims under the same stan-

dard applied by the district court. We

accept all well-pleaded allegations in the

complaint as true and construe them in the

light most favorable to the plaintiff.

Mascheroni v. Bd. of Regents, 28 F.3rd

1554, 1560 (10th Cir. 1994). We review

8a

Appendix A

the district court's determination of the

applicable statute of limitations de novo.

Trustees of Wyoming Laborers Health & Wel-

fare Plan v. Morgen & Oswood Constr. Co.,

Inc., 850 F.2d 613, 617 (10th Cir. 1988).

Where, as here, the dates on which the

pertinent acts occurred are not in dis-

pute, the date a statute of limitations

accrues is also a question of law de novo.

Galindo v. Stoody Co., 793 F.2d 1502, 1509

(9th Cir. 1986); see Lucas v. Mountain

States, 909 F.2d 419 (10th Cir. 1990).

A.

Statute of Limitations

i

Section 301 of the LMRA makes collec-

tive bargaining agreements enforceable in

federal court, but provides no statute of

limitations for claimsbrought under it.

See 29 U.S.C. $185 (1988). Under these

9a

ne

Appendix A

circumstances, courts generally infer Con-

gress intended the most closely analogous

state statute of limitations to apply.

See generally Agency Holding Corp. v. Mal-

ley-Duff & Associates, Inc. 483 U.S. 143,

147 (1987) (Rules of Decision Act usually

requires application of statute of limita-

tions and "(g)iven our longstanding prac-

tice of borrowing state law, and the con-

gressional awareness of this practice, we

can generally assume that Congress intends

by its silence that we borrow state law").

This general rule is neither rigid nor

mechanically applied, however. Where

state limitations periods are at odds with

the purpose or operation of federal sub-

Sstantive law, or where they are determined

to be unsatisfactory vehicles for its en-

forcement, federal courts may decline to

borrow them and draw instead from federal

_ — a

ra — ——_———

Appendix A

law. DelCostello, 462 U.S. at 161-622 In

1 Illustrative examples of cases in

which federal interests justified the ap-

plication of a federal limitations period

include Occidental Life Ins. . ¥, EEOC,

432 U.S. 355, 367 CLIC COERCION to ap-

ply state limitations periods to enforce-

ment actions brought by the EEOC under Ti-

tle VII, reasoning state periods may un-

duly hinder the policy of the Civil Rights

Act of 1964 by placing too great a burden

on the agency), McAllister v. Magnolia Pe-

troleum Co., 357 U.S. 221 (1958)(applying

federal Jones Act limitations period to

seaworthiness action, reasoning the re-

latedness of the claims and the practi-

calities of admiralty personal injury li-

tigation made shorter state statute go-

vere pos rene injuries inappropriate),

and Holmberg v. ieatcarht . gat Usd. 392,

396 (1946)(holding state limitations pe-

riods should not apply to federal causes

of action lying only in equity because the

principles of federal equity are hostile

to the "mechanical rules" of statutes of

limitations). See DelCostello 462 U.S.

162.

lla

0 eee — . ———

Appendix A

DelCostello, the Supreme Court determined

federal labor policies and the practicali-

ties of §301 litigation supported the ap-

plication of the six-month statute of li-

mitations prescribed by § 10(b) of the LM-

RA, 29 U.S.C. §160(b), to "hybrid" § 301/un-

fair representation suits charging an em-

ployer breached a collective-bargaining

agreement and the union breached its duty

of fair representation. Id. at 154-55.

We have followed DelCostello and applied

§ 10(b)'s statute of limitations in Aqui-

naga v. United Food & Commercial Workers

Int'l Union, 993 F.2d 1463, 1472 (10th Cir.

1993), cert. denied 114 S.Ct. 880 (1994),

Lucas v. Mountain States Tel. & Tel., 909

F.2d 419, 420 (10th Cir. 1990), and Rucker

v. St. Louis Southwestern Ry. Co., 917

F.2d 1233, 1237-38 (10th Cir. 1990).

The "hybrid" suit is a judicially

12a

Appendix A

created exception to the general rule that

an employee is bound by the result of grie-

vance or arbitration remedial procedures

provided in a collective-bargaining agree-

ment. Vaca v. Sipes, 386 U.S. 171, 185-86

(1967), discussed in DelCostello, 462 U.S.

at 163-64. Where an employee can prove he

suffered a wrongful discharge in violation

of a collective-bargaining agreement that

would have been remedied through the grie-

vance process had the union fulfilled its

statutory duty to represent the employee

fairly, federal law will provide a remedy.

Vaca, 386 U.S. at 185-86, applied in Hines

v. Anchor Motor Freight, Inc., 424 U.S.

554 (1976), United Parcel Service, Inc. v.

Mitchell, 451 U.S. 56 (1983), and Aquina-

ga, 993 F.2d at 1471-72 ("[iJn such in-

stance, the union has effectively ceased

to function as the employee's representa-

tive"). To leave the employee remediless

under these circumstances would, in the

words of the Supreme Court, "be a great

13a

Appendix A

injustice." Vaca, 386 U.S. at 185-86.

Thus, federal law permits an employee

to pursue a § 301 action against his emplo-

yer notwithstanding the outcome or final-

ity of the grievance or arbitration pro-

cess, provided the employee simultaneously

proves he would have obtained a remedy un-

der the agreement but for the union's mis-

conduct. Vaca at 186 & n.11 (citations

omitted). It is under this theory of re-

lief that Edwards brought his suit against

the Union. "

Nevertheless, Edwards contends his

suit against the Union is not a "hybrid"

§ 301/unfair representation action because

it was brought against the Union alone af-

ter the Union pursued, and lost, Edwards’

§301 suit against Trover. We disagree.

Under the exception to the finality rule

set forth in Vaca, an employee's unfair

representation claim against his union and

the underlying §301 claim against his em-

l4a

‘Teiestoadiits Esl 5 sate

BAe AD, 0 oh 208

Appendix A

ployer are "inextricably interdependent."

DelCostello, 462 U.S. at 164-65 (quoting

Mitchell, 451 U.S. at 66-67,(Stewart, J.,

concurring) and Hines,424 U.S. at 570-71),

applied in Aquinaga, 993 F.2d at 1471-72.

This is true regardless of whether the em-

ployee sues the employer, the union or both.

As the Court explained in DelCostello,

the case an employee must prove against

any defendant is the same:

"To prevail against either the com-

pany or the Union, . . . [employee-

plaintiffs] must not only show that

that their discharge was contrary to

the { ollective-bargaining] contract

buf ¥ Naa carry the burden of demon-

strating breach of duty by the union.”

DelCostello, 462 U.S. at 165 (internal

quotes and citations omitted), applied in

Quay v. Sheffield Steel Corp., 25 F.3rd

1058, 1994 WL 235543, *2 (10th Cir. 1994)

(unpublished opinion); Aquinaga, 993 F.2d

at 1469 n.1 &1471-72. As between the two,

however, the ultimate wrong is that of the

employer. DelCostello at 168.

15a

Appendix A

Thus, while employees may sue their union

for unfair representation, the union may

be held liable "only for ‘increases if any

in [the employee's] damages caused by the

union's [wrongful] conduct in process[ing]

" Id. (emphasis original)

the grievance. '"'

(quoting Vaca, 386 U.S. at 197-98). The

result is that a suit against the union by

definition is a suit against the employ-

er.2 Because the employer cannot “hide be-

7Although he attempts to do so, Edwards

cannot avoid this conclusion by character-

izing his suit against the Union as a mal-

practice, rather than a federal "hybrid,"

action. In any malpractice action alleging

an attorney's negligence in allowing the

statutory time limit to run resulted in

the loss of a client's claim, it is the

value of the underlying claim that pro-

vides the measure of the client's damages

See generally 7 Am. Jur. 2d Attorney

Client $226, n. 50. If the underlying

claim is unliquidated, the client must

introduce evidence justifying his right to

recover on the underlying claim thus under-

taking “the proof of two actions in one."

id., n.53. Oklahoma law is no exception.

See Allred v. Rabon, 572 P.2d 979, 981

(Okla. 1977)(to prevail in malpractice ac-

tion against attorney, client must prove

he would have succeeded in the underlyin

action but for the attorney's saxtinetce’ .

Thus, Edwards' contention that his claim

against the Union more closely resembles a

16a

-) Cacho nccoiad ata i

Appendix A

hind the union's wrongful failure to act

the employer may be (and probably

should be) joined as a defendant in the

fair representation suit." Vaca, 386 at

197.

Under the analysis in Vaca and DelCos-

tello, it is clear Edwards’ suit against

the Union cannot exist independently of

his underlying wrongful discharge grie-

vance against Trover. We find the dis-

trict court correctly held Edwards could

not avoid the six-month statute of limita-

tions applicable to both elements of a

"hybrid" claim under DelCostello by suing

only the Union.

3

Edwards next contends he was precluded

from bringing a DelCostello-type "hybrid"

action because the Union's action to va-

cate the arbitration award "was" his $301

suit against Trover. Aplt's Reply at 2.

legal malpractice action under Oklahoma

law is unavailing.

17a

Appendix A

Edwards provides no support for his con-

tention and we reject it out of hand. The

very purpose behind the creation of the

"hybrid" cause of action in Vaca was to

enable an employee to hold his employer

accountable for breaching its collective-

bargaining agreement notwithstanding a

"final" result obtained for him by his

bargaining agent. See DelCostello, 462

U.S. at 164-65 (discussing Vaca and its

progeny).

Under Vaca, the district court's en-

try of summary judgment in favor of Tro-

ver merely marked the end of the Union's

efforts on Edwards' behalf under the col-

lective-bargaining agreement; it did not

preclude Edwards from bringing a “hybrid”

§301/unfair representation action against

the Union, Trover or both. If Edwards

could prove the Union's misconduct preven-

ted him from obtaining a remedy against

18a

APPENDIX A

Trover for wrongful discharge under the

terms of the agreement, he would be entit-

led to relief. See Vaca, 386 U.S. at 186.

Edwards’ contention that the Union's suit

against Trover was somehow res judicata is

therefore without merit.

4,

Even assuming his suit against the Un-

ion is a "hybrid" action, Edwards contends

Oklahoma's two-year statute of limitations

for legal malpractice actions should apply.

In support of his position, Edwards relies

on the Supreme Court's post-DelCostello o-

pinion in Reed v. United Transportation

Union, 488 U.S. 319 (1989), which limited

DelCostello'’s scope and re-emphasized the

general rule favoring application of state

Statutes of limitations to federal causes

of action lacking express limitations per-

lods of their own. We agree Reed narrowly

circumscribed DelCostello's exception to

the general rule favoring state statutes

19a

Appendix A

of limitation, but find Edwards' action a-

gainst the Union nevertheless falls within

its reach.

In Reed, the Supreme Court rejected a

union's contention that §10(b)'s six-month

limitation period would apply to a member's

free speech claim against it under § 102(a)

(2) of the Labor-Management Reporting and

Disclosure Act. The Court ruled the Un-

ion's argument "fails to take seriously

(the Court's) admonition that analogous

State statutes of limitations are to be

used unless they frustrate or significant-

ly interfere with federal policies."

Reed, 488 U.S. at 327. It found the union

member's claim more analogous to a civil

rights action under 42 U.S.C. §1983 than

to an unfair competition claim under the

NLRA, and applied the appropriate state

statute of limitations for personal injury

actions pursuant to Wilson v. Garcia, 4/71

U.S. 261 (1985). Id. at 326-27.

20a

Appendix A

The Court in Reed specifically reaf-

firmed its holding in DelCostello, how-

ever, explaining that unlike "hybrid" §301/

unfair representation claims, the relation-

ship between §102(a)(2) claims and federal

interests in stable bargaining relation-

ships and private dispute resolution were

"tangential and remote." Beed, 488 U.S.

at 330-31 & nn.4, 5. The Court found the

fact §102(a)(2) claims “sometimes have

some impact on economic relations between

union and employer and on labor peace" in-

sufficient to require the application of

§10(b)'s six-month statute of limitations

for unfair labor practice claims:

"This is substantially less immediate

and less significant an impact on

bargaining and private dispute set-

tlement than that which led us to ap-

ply the §10(b) statute to hybrid § 301/

fair representation claims, which di-

rectly challenge both the employer's

adherence to the collective-bargain-

ing agreement and the union's repre-

sentation of the employee in grie-

vance-and-arbitration procedures."

Id. at 331.

21a

Appendix A

We find Reed bolsters, rather than

weakens, the holding in DelCostello and

its application to Edwards’ suit against

the Union. Unless and until the Supreme

Court or Congress reconsiders DelCostello;

we are bound to apply §10(b)'s six-month

statute of limitations to Vaca-type “hy-

brid” §301/unfair representation claims

such as the one before us.

* Various courts and commentators have

suggested DelCostello be reconsidered.

See, e.g., Mark S. Stein, {0¢b or Not 10

(b): A Critical Overview of Court-Selec-

ted Limitations Periods in Labor Law, 6

Lab. Law. 331 (1990) (questioning propri-

ety of applying §10(b)'s statute of li-

mitations for administrative claims filed

with the NLRB to civil claims filed in

federal district court). See also Bow-

dry v. United Air Lines, Inc., 956 F.2d

999, 1005 (10th Cir. 1992) (discussing

split in circuit courts’ application of

DelCostello to former airline employees'

claims under the Airline Deregulation

Act's Employee Protection Program), cert.

denied sub nom United Airlines, Inc. v.

Bart. Lhd SeGhe SF Caeeets

22a

Appendix A

For the foregoing reasons, we affirm

the district court's determination that a

six-month statute of limitations applies

to Edwards’ suit against the Union for

breach of the duty of fair representation.

B.

Accrual/Tolling of NLRA's Six-Month

Statute of Limitations

Should DelCostello's six-month statute

of limitations apply to his suit against

the Union, Edwards contends the district

court erred in refusing to toll the stat-

ute between the time he received notice

summary judgment had been entered against

him on October 28, 1992 and mid-May 1993,

when the Union failed to respond to his

fourth demand letter. Aplt's Br. at 13.

Edwards argues the UPGWA's constituion im-

posed a fiduciary duty on the Union to

"fully inform" him of his legal rights af-

ter the court refused to vacate the arbi-

trator's decision, as well as to respond

to his demand letters.

23a

sh

Appendix A

Edwards asserts the Union's failure in

both regards supports application of the

federal equitable tolling doctrine and

brings his suit within §10(b)'s six-mon-

th limitations weukite:

i.

Before addressing the equitable issue,

we first determine when Edwards' causs of

action against the Union accrued. We fir-

st addressed the question of what events

signal the commencement of the six-month

limitation period for "hybrid" § 301/un-

fair representation actions in Lucas v.

Mountain States Tel. & Tel., 909 F.2d 419

(10th Cir. 1990). There we adopted the

general rule that the limitation period

4kedwards received notice of the dis-

trict court's refusal to vacate the arbi-

tration award dismissing his grievance in

November 1992 and filed his action in July

1993. If the statute of limitations was

tolled (or his claim against the Union did

not accrue) until May 1993, Edwards suit

would have been timely filed.

24a

ete

Appendix A

begins to run when an employee "knows or

in the exercise of reasonable diligence

should have known or discovered the acts

constituting the union's alleged viola-

tion." Id. at 420-21 (citations omitted).

Application of the general rule turns

on the context in which the claim arose.

When, as in Lucas, the union rejects or

abandons an employee's claim during the

grievance process, the six-month limita-

tions period begins to run when the em-

ployee learns, or in the exercise of rea-

sonable diligence, should have learned of

the union's action. Id. When, on the o-

ther hand, a union represents an employee

throughout the grievance process, a claim

challenging the adequacy of that union's

representation does not accrue until the

dispute resolution process has been com-

pletely exhausted. Id. at 421. Finally,

when the union's alleged breach arises out-

side the context of processing a grievance,

the employee's claim may be tolled by the

25a

Appendix A

employee's good faith attempt to exhaust

the grievance process. Id. at 421-22.

Applying the principles set forth in

Lucas, the district court determined Ed-

wards’ claim against the Union accrued on

March 26, 1992 -- the date the arbitrator

dismissed his grievance based on the Un-

ion's untimely selection of the arbitra-

tor. (Aplt's App. at 63.) As this was

fifteen montns before Edwards filed the

the instant action on July 6, 1993, the

district court held Edwards’ claim was

time-barred. Id. The district court then

opined Edwards’ suit would have been time-

barred even if the limitation period did

not begin to run until the Union's request

to vacate the arbitrator's decision was

denied on October 28, 1992, as that order

was issued eight months before Edwards fi-

led suit. Id.

The record in this case, viewed in the

light most favorable to Edwards, does not

26a

Mee ag.

Appendix A

conclusively demonstrate Edwards' cause of

action against the Union accrued March 26,

1992. According to Edwards, he had no rea-

soh?believe he had exhausted his remedies

under the collective-bargaining agreement as

of that date because the Union, as his ex-

clusive bargaining agent, led him to belie-

ve it could obtain arbitration on the merits

of his grievance. Under the standards ap-

plicable to a motion to dismiss, we con-

clude a reasonable trier of fact could

find Edwards reasonably believed the arbi-

tration process was not exhausted until he

received notice in November 1992 of the

district court's October 28, 1992 decision.

cee Rucker, 917 F.2d at 1238 (summary judg-

ment on unfair representation claim could

not be predicated on §10(b)'s statute of

limitations where there was evidence to

support employees’ claim they were unaware

union had abandoned their interests); King

27a

Appendix A

v. New York Tel. Co., Inc., 785 F.2d 31,

34-35 (2d Cir. 1985)(given the "special

relationship" between a union and its mem-

bers and the fact the union in that case

continued to demand arbitration, record

did not conclusively demonstrate employee

failed to exercise reasonable diligence in

learning union had made untimely demand

for arbitration), cited favorably in Lucas,

909 F.2d 421. For the purposes of the mo-

tion to dismiss at issue here, we find Ed-

wards’ cause of action against the Union

did not accrue until early November 1992.

y ¥

Edwards' suit against the Union is ne-

vertheless time-barred unless the facts as

alleged by Edwards support a tolling of

the limitations period until at least Jan-

uary 6, 1993 -- six-months before Edwards

filed his suit. The district court con-

cluded they do not (Aplt's App. at 64),

28a

Appendix A

and we agree.

As set froth above, the timely filing

of a hybrid §301/unfair representation cl-

aim may be tolled. See Lucas, 909 F.2d at

421-22. In Frandsen v. Brotherhood of

Railway, Airline & Steamship Clerks, 782

F.2d 674, 681 (7th Cir. 1986), the Seventh

Circuit held a hybrid claim may be tolled

"by the pursuit of internal remedies, even

where those remedies are ultimately deter-

mined to have been futile." In King, the

Second Circuit held that in light of the

union's control over the grievance process

and employee and the employee's relative

lack of expertise regarding limitations

periods, "it would be incongruous if the

[u]nion's own dilatory conduct could pro-

vide it with a defense” to an unfair re-

presentation suit. 785 F.2d 34-35.

Though unclear, Edwards appears to ar-

gue the Union lulled him into inaction af-

ter the district court's October 28, 1992

29a

Appendix A

order granting Trover summary judgment by

failing to inform him he had six months to

sue and by refusing to respond to his de-

mand letters. Edwards points out that in

defending against Trover's claim that the

Union had unreasonably delayed in select-

ing an arbitrator, the Union justified its

conduct as the result of its time-consum-

ing national review process. Edwards ex-

plains his own inaction with respect to

filing this suit by stating he assumed his

November 1992 demand letter was receiving

the same treatment. (Aplt's App. at 6.)

Again construing the record in the

light most favorable to Edwards, we find

these facts do not rise to the level of

; This we glean from Edwards' con-

tention that the Union's failure to so in-

form him or to respond to his counsel's

demand letters breached fiduciary duties

owed him under the UPGWA Constitution.

Because Edwards asserts no claim for br-

each of fiduciaeOValainet the Union, his

contention would otherwise have no impact

on the equitable tolling issue.

30a

Appendix A

"active deception" sufficient to invoke

the powers of equity and toll the legal

limitations period for hybrid actions set

by the United States Supreme Court in

DelCostello. Throughout the eight-month

period between the district court's Octo-

ber 28, 1992 order and the date this suit

was filed, Edwards was represented by

counsel who, as evidenced by the content

of his demand letter dated November 28,

1992, was fully aware of the Union's mis-

conduct. Under these circumstances, it

would have been unreasonable for Edwards

to believe his remedies under the collec-

tive-bargaining agreement had not been

exhausted or that his claim against the

Union had not accrued. See King v. New

York Tel. Co., Inc., 873 F.2d 36, 38 (2d

Cir. 1989)(reliance on Union's overtures

to attempt arbitration unreasonable in li-

ght of representation by counsel), decided

on appeal after remand from King v. New York

3is

Appendix A

Tel. Co., Iae., 763 ¥.20 31 (28 Ghee. 1906).

The most that can be said in these circum-

stances is the patience and deference shown

an insentient bargaining agent are not war-

ranted by a harsh reality.

The application of equitable doctrines

rests in the sound discretion of the dis-

trict court. Purrington v. University of

Utah, 996 F.2d 1025, 1030 (10th Cir. 1993);

State of Ohio v. Peterson, Lowry, Ball,

Barber & Ross, et al., 651 F.2d 687, 694 &

n. 15 (10th Cir. 1981), cert, denied, 454

U.S. 895 (1981). We find the district

court did not abuse its discretion in re-

fusing to apply the equitable tolling doc-

trine to Edwards’ claims, and its Order

Granting Defendants’ Motion to Dismiss is

therefore AFFIRMED.

32a

APPENDIX B--U.S. DISTRICT COURT DECISION

Filed December 14, 1993

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

JERRY L. EDWARDS,

Plaintiff,

INTERNATIONAL UNION, UNI-

TED PLANT GUARD WORKERS OF

AMERICA (UPGWA) and its AF-

FILIATED LOCAL 796, )

)

2

)

)

Vv. ) No. 93-455-NJ

)

)

)

)

Defendants.

ORDER GRANTING DEFENDANTS ’

MOTION TO DISMISS

On July 6, 1993, plaintiff instituted

this action against defendant internation-

al Union, United Plant Guard Workers of

America and its affiliated Local 796 (col-

lectively referred to as the "Union"),

pursuant to the provisions of section 301

of the Labor Managment Relations Act, 29

U.S.C. § 185. Plaintiff alleges that the

Union breached its duty of fair represen-

tation in connection with the prosecution

33a

Appendix B

of his grievance against his employer,

Trover Security Service, Inc. ("Trover").

Specifically, plaintiff alleges that the

Union’s “failure to timely prosecute [his]

grievance through arbitration on its mer-

its is a breach of [the Union’s] duty to

represent [him] fairly.” Complaint, q7 8.

The underlying facts which give rise

to plaintiff’s claim are not in dispute.

Plaintiff was employed by Trover as a se-

curity officer assigned to the McAlester

Army Ammunition Plant in McAlester, Okla-

homa, until his discharge on June 28, 19-

91. Plaintiff was a member of the Union

which was a party to a collective bargain-

ing agreement with Trover covering the

terms and conditions of the employment of

the member employees. On July 1, 1991,

the Union timely filed a grievance contes-

ting plaintiff’s discharge. On July 23,

1991, the Union notified Trover of its in-

tent to arbitrate the grievance. On De-

34a

Appendix B

cember 23, 1991, an arbitrator was selec-

ted. Trover agreed on the selection of

the arbitrator, but reserved its objection

to the timeliness of the selection. On

March 26, 1992, the arbitrator dismissed

plaintiff’s grievance as untimely in light

of the delay between the time the Union

notified Trover of its intent to arbitr-

ate and the time the arbitrator was actu-

ally selected. On June 22, 1992, the Un-

ion filed an action in this court (Case No.

92-378-S) against Trover seeking an order va-

cating the arbitration decision and requi-

ring the arbitrator to consider the merits

of plaintiff's grievance. On October 28,

1992, this court granted Trover’s motion

for summary judgment and denied the Un-

ion’s requested relief. On July 6, 1993,

plaintiff filed the instant action.

Given this series of events, the Un-

ion has now moved the court to dismiss

plaintiff's complaint claiming it is bar-

35a

Appendix B

red by the applicable statute of limita-

tions. Drawing all inferences in favor of

plaintiff for purposes of this motion to

dismiss, the Union claims this action, fi-

led on July 6, 1993, was instituted over

eight months after the limitation period

accrued on October 28, 1992, the date of

this court’s order denying the Union’s re-

quests to vacate the arbitration award and

compel the arbitrator to consider the me-

rits of plaintiff’s grievance; consequent-

ly, the Union contends dismissal is appro-

priate because plaintiff has failed to

bring his suit within the six-month limit-

ation period established for unfair repre-

sentation suits by the United States Su-

preme Court in DelCostello v. Interna-

tional Brotherhood of Teamsters, 462 U.S.

151 (1983). In DelCostello, the Supreme

Court established a six-month limitation

period for hybrid § 301/unfair representa-

36a

Be ROR Pe od

a a le

Appendix B

tion suits. This hybrid suit refers to

the two claims brought by an employee dis-

satisfied with the handling and outcome of

his grievance/arbitration proceedings: one

against the employer for breach of the

collective bargaining agreement and one

against the union for breach of the un-

ion’s duty of fair representation. Id. at

164. In determining what statute of limi-

tations should apply in hybrid suits, the

Supreme Court referred to section 10(b) of

the National Labor Relations Act, 29 U.S.C.

§ 160(b), and adopted its six-month limi-

tation period. Id. at 169.

As noted above, plaintiff has asser-

ted a claim against the Union for breach

of duty of fair representation. As a re-

sult, plaintiff argues DelCostello’s six-

month limitation period does not apply be-

cause the absence of a claim against Tro-

ver precludes this litigation from being

classified as a hybrid suit. Under these

37a

Appendix B

circumstances, plaintiff contends that his

suit is in the nature of a legal malprac-

tice action governed by Oklahoma’s two-

year limitation period under 12 0O.S. § 95

(Third). The court disagrees.

As noted by the Supreme Court in Del-

Costello, the claims for breach of the

collective bargaining agreement and breach

of the duty of fair representation are

“inextricably interdependent." Id. at 164-

65 (quoting United States v. Mitchell, 451

U.S. 56, 66-67 (1981) (Stewart, J., con-

curring) ).

"To prevail against either the com-

pany or the Union, .. . [employee-

plaintiffs) must not only show that

their discharge was contrary to the

contract but must also carry the bur-

den of demonstrating breach of duty

by the Union." .. . The employee

may, if he chooses, sue one defendant

and not the other; but the case he

must prove is the same whether he

sues one, the other, or both.

DelCostello, 462 U.S. at 165 (quoting Hin-

es v. Anchor Motor Freight, Inc., 424 U.S.

554, 570-571 (1976). Artful drafting of

38a

Appendix B

the complaint by plaintiff herein does not

alter the nature of the action instituted.

Plaintiff has brought a claim against the

Union for breach of duty of fair represen-

tation and as part of his burden he must

prove both a breach by the Union and that

his discharge was contrary to the provi-

sions of the collective bargaining agree-

ment. As a result, plaintiff’s claim is a

hybrid claim regardless of the fact that

plaintiff has chosen not to include a br-

each of the collective bargaining claim a-

gainst Trover:

The law is clear that regardless of

who is named as a defendant, a hybrid

claim is presented if an employee has

a cause of action against both the

employer and the union, where the two

claims are inextricably linked, and

where the case to be proved is the

same against both.

Carrington v. RCA Global Communications,

Inc., 762 F.Supp. 632, 637 (D. N.J. 1991).

Plaintiff has pled a textbook hybrid claim

and cannot circumvent the six-month limi-

39a

Appendix B

tation period of DelCostello by the simple

expedient of failing to name Trover as a

defendant. Carrington, 762 F. Supp. 637.

Consequently, the court finds that plain-

tiff’s claim is barred by the statute of

limitations as this action was brought

more than six months after plaintiff's

claim accrued.

In making this determination, the

court finds that plaintiff’s claim accru-

ed, at the latest, on October 28, 1992,

when the court denied the Union’s request

to vacate the arbitration decision. Court

have generally held that the limitation

period in a hybrid § 301/fair representa-

1 Plaintiff cites Reed v. United

Transportation Union, 488 U.S. 319 (1989)

and Bowdry v. United Air Lines, Inc., 956

F.2d 999 (10th) cert. denied, 113 S. Ct.

97 (1992) in support of his contention

that the six-month limitation period does

not apply. Plaintiff’s reference to these

cases adds nothing to the discussion as

neither case involved a hybrid § 301/fair

representation claim.

40a

by ne Meee coe ee oe foe ee tee i ae ae Ban tT

Appendix B

tion suit “begins to run when an employee

knows or in the exercise of reasonable di-

ligence should have known or discovered the

acts constituting the union’s alleged vio-

lations.” Lucas v. Mountain States Tel. &

Tel., 909 F.2d 419, 421 (10th Cir. 1990).

The nature of the aggrieved employee’s

Claim must be considered when applying

this rule. When the employee is challen-

ging the adequacy of the union’s represen-

tation throughout the grievance procedure,

the employee’s fair representation claim

"does not accrue until the dispute resolu-

tion process has been completely exhaus-

ted." Id. In such situation, a hybrid

claim will be considered to have accrued

the moment the employee learns of the ar-

bitrator’s decision. Id.; DelCostello,

462 U.S. at 166 n. 16; Freeman v. Local

Union No. 135, Chauffeurs, Etc., 746 F.2d

1316, 1319 (7th Cir. 1984); see also Elis-

alde v. International Association of Ma-

4la

Appendix B

chinists, District Lodge No. 142, 792 F.2d

114, 115 (8th Cir. 1986), cert. denied,

481 U.S. 1013 (1987) (six-month limitation

period begins to run on the date the union

informs employee that it will not continue

to arbitrate his grievance). Here, plain-

tiff is challenging the adequacy of the

Union’s representation by claiming that

the Union has failed to timely prosecute

his grievance through arbitration. An un-

favorable arbitration decision was render-

ed on March 26, 1992. Under the principles

enunciated in Lucas, plaintiff’s claim ac-

crued on March 26, 1992 - the date the ar-

bitrator reached a final decision on plain

tiff’s grievance. Thus, this suit filed

some fifteen months after the arbitrator's

decision is well past the six-month limi-

tation period. The Union, however, subse-

quently filed suit in this court to vacate

the arbitrator’s decision. On October 28,

1992, this court denied the Union’s re-

42a

Appendix B

quest. Even assuming for purposes of the

instant motion that the limitation period

did not begin to run until this court de-

nied the Union’s request to vacate the ar-

bitration decision on October 28, 1992,

plaintiff’s suit filed July 6, 1993, is

nontheless barred by the applicable six-

month limitation period.

Plaintiff argues that the limitation

period should be tolled because the Union

failed to inform him that he had six mon-

ths to file suit and because the Union

failed to respond to his demand letters

sent after this court’s October 28, 1992,

order. The court finds that neither of

these contentions support tolling of the

limitation period as neither impacted

plaintiff’s ability to bring the instant

action. Plaintiff’s claim is that the Un-

ion failed to timely prosecute his grie-

vance through arbitration. When the arbi-

43a

Appendix B

trator dismissed plaintiff's grievance as

untimely on March 26, 1992, plaintiff knew

of the facts which would support his duty

of fair representation claim. As expl-

ained above with respect to the accural

issue, plaintiff certainly knew of such

facts to support his claim no later than

October 28, 1992, when this court denied

the Union’s request to vacate the arbitra-

tor’s decision. The Union’s alleged fail-

ure to inform plaintiff of the six-month

limitation period and its alleged failure

to respond to plaintiff’s demand letters

simply do not affect plaintiff’s claim for

breach of the duty of fair representation

in connection with the timely prosecution

of his grievance. In sum, plaintiff can-

not unilaterally extend the limitation

period by alleging omissions on the part

of the Union which are not related to the

duty of fair representation claim asserted

in his complaint.

44a

Appendix B

Finally, the Union has requested that

the court sanction plaintiff under Rule 11

of the Federal Rules of Civil Procedure

for filing this action. The Union con-

tends that sanctions are appropriate in

light of the clearly controlling six-month

limitation period of DelCostello. The

court finds that sanctions are not appro-

priate. While the court ultimately agre-

ed with the Union on the applicability of

the six-month limitation period, the court

cannot say that plaintiff's arguments in

support of the limited application of Del-

Costello and in support of tolling were

frivolous. Plaintiff’s attorney’s ar-u-

ments were not persuasive, but the court

is not prepared to say that a reasonable

and competent attorney would not have be-

lieved in the merits of such arguments.

Consquently, the Union’s request is denied.

IT IS SO ORDERED this 14th day of De-

cember, 1993.

S/Frank H. Seay

Frank H. Seay

United States District Judge

45a

APPENDIX C - Order Denying Rehearing

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JERRY L. EDWARDS,

Plaintiff-Appellant,

)

)

)

)

Vv. ) No. 94-7035

)

INTERNATIONAL UNION, UNI- )

TED PLANT GUARD WORKERS OF )

AMERICA, AFFILIATED LOCAL )

796, )

)

)

Defendants-Appellees.

ORDER

Entered February 23, 1995

Before BALDOCK, BRORBY, Circuit Judges,

KANE*, Senior District Judge

This matter comes on for consideration

of Appellant's petition for rehearing.

Upon consideration whereof, the peti-

tion for rehearing is denied by the panel

that rendered the decision.

Entered for the Court

PATRICK FISHER, Clerk

By: S/Opal A. Carter

Opal A. Carter

Deputy Clerk

46a