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April 27, 1978

Michael WALLACE, Plaintiff,
AMERICAN TELEPHONE AND TELEGRAPH COMPANY, INC. and Communications Workers of America, AFL-CIO, Defendants

The opinion of the court was delivered by: SIFTON


Plaintiff Michael Wallace ("Wallace") commenced this action against his former employer, American Telephone and Telegraph Co. ("AT&T"), and against the union of which he was a member during the relevant period, the Communications Workers of America ("CWA"), after the decision of an arbitrator sustained plaintiff's discharge by AT&T for involvement in drug-related activities on company premises. *fn1" The complaint, which originally was filed in the State Supreme Court, Kings County, alleges a breach of the union's duty of fair representation in that the union provided one attorney to represent, at a combined hearing, Wallace and ten other employees also disciplined for alleged drug-related activities, under circumstances in which, as the union attorney knew or should have known, there was a conflict of interest between plaintiff and some of those other employees. In terms of relief, the complaint asserts that the alleged breach of duty by the union "warrants the reversal of the determination of the arbitrator," and further demands the reinstatement of the plaintiff to his former employment, together with damages for lost wages, counsel fees and the costs and disbursements of bringing this action. Defendants removed the action to this Court, accurately stating in their removal petition that an action of this nature is maintainable pursuant to § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, and is one of which the district courts have original jurisdiction under 28 U.S.C. § 1337.

 Each of the defendants has now moved separately, pursuant to Fed.R.Civ.P. 12(b), for an order dismissing this action. For the reasons stated below, this Court has concluded that both defendants' motions must be granted.

 A. Motion of Defendant AT&T

 Defendant AT&T urges dismissal of this action, at least as to any claims against AT&T, on the grounds that the action is barred by the statute of limitations.

 The Supreme Court has held that "the timeliness of a § 301 suit . . . is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations," Congress never having enacted any federal limitations provisions for § 301 suits. International Union, UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 704-05, 86 S. Ct. 1107, 1113, 16 L. Ed. 2d 192 (1966). Disposition of defendant AT&T's motion therefore turns upon characterization of the nature of plaintiff's action for purposes of determining the applicable limitations period.

 AT&T characterizes plaintiff's action as one seeking to vacate an arbitration award. New York CPLR § 7511(a) provides a ninety-day limitations period for actions of this nature. The instant action, having been brought more than six months after delivery of the arbitration award sustaining plaintiff's discharge, would be time-barred under the ninety-day statute. *fn2"

 Plaintiff, on the other hand, characterizes his action as one for breach of contract. New York CPLR § 213(2) provides a six-year statute of limitations for breach of contract actions. Clearly, plaintiff's action would not be time-barred were it governed by this six-year statute.

 In support of his characterization of his action as one for breach of contract, plaintiff advances essentially two arguments. First, plaintiff argues that the Supreme Court decision upholding an employee's right to maintain a § 301 suit against his employer on a complaint that has already been the subject of a final and binding arbitration decision speaks of the action against the employer in these circumstances as one for breach of the collective bargaining contract. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S. Ct. 1048, 47 L. Ed. 2d 231 (1976). Second, plaintiff asserts that, as a non-party to the arbitration proceeding, he would have no standing to maintain an action to vacate the arbitration award under CPLR § 7511 and that therefore the limitations period provided by that section is inapplicable to this action.

 Plaintiff's reliance on the bare language of the opinion in Hines, supra, a case in which, it must be remembered, the issue of the applicable statute of limitations never was raised, ignores important policy considerations which argue compellingly for a characterization of this action which would permit application of a short statute of limitations. Federal policy strongly favors arbitration as a means of resolving labor disputes. United Steel Workers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960). The efficacy of that policy would be seriously undermined if arbitration decisions remained open to challenge for extended periods of time. See, e.g., Barbarino v. Anchor Motor Freight, Inc., 421 F. Supp. 1003, 1006 (W.D.N.Y.1976).

 Moreover, the fact that plaintiff might not have the requisite standing to bring an action under CPLR § 7511 itself is irrelevant to the application of the limitations period provided in that statute to the instant § 301 action. In applying a state statute of limitations, "federal courts borrow only the chronometric aspects and not the procedural or substantive nuances of the law of the forum." Wolf v. Frank, 477 F.2d 467, 475 (5th Cir.) Cert. denied, 414 U.S. 975, 94 S. Ct. 287, 38 L. Ed. 2d 218 (1973). Section 301 of the LMRA, as interpreted in Hines, supra, supplies plaintiff's standing to maintain the instant action and by an action like the present one, timely filed, plaintiff could have obtained such relief as he would be entitled to in the circumstances. CPLR § 7511 setting forth the most analogous state action, *fn3" that section is appropriately relied upon by this Court for the narrow purpose of providing the limitations period applicable to the form of action which plaintiff has brought.

 Judicial decisions to date line up solidly behind the view that, where there has been a previous arbitration award on the subject of a pending § 301 action, that action is governed by the short statute of limitations provided for actions seeking to vacate an arbitration award. Barbarino, supra; DeLorto v. United Parcel Service, Inc., 401 F. Supp. 408 (D.Mass.1975); UMW v. Jones & Laughlin Steel Corp., 378 F. Supp. 1206 (W.D.Pa.1974); International Brotherhood of Teamsters, Local 249 v. Motor Freight Express, Inc., 356 F. Supp. 724 (W.D.Pa.1973); *fn4" Lunceford v. Western Conference of Teamsters, 74 Lab.Cas. (CCH) P 10,160 (C.D.Cal.1974); Elrod v. Western Conference of Teamsters, 66 Lab.Cas. (CCH) P 11,941 (C.D.Cal.1971), Aff'd, 72 Lab.Cas. P 14,197 (9th Cir. 1973); Howerton v. J. Christenson Co., 65 Lab.Cas. (CCH) P 11,569 (N.D.Cal.1971). Plaintiff has not cited this Court to any contrary authority.

 Thus, for purposes of applying the statute of limitations, plaintiff's action must be characterized as an action to vacate the previous arbitration award sustaining his discharge and that action, having been commenced more than ninety days after delivery of the arbitration award, is time-barred as to plaintiff's former employer, defendant AT&T.

 Even if plaintiff's cause of action against AT&T were not time-barred, this Court would dismiss it based on the present pleadings. As subsequently indicated, plaintiff's claim against defendant CWA for breach of its duty of fair representation has not been sufficiently pleaded to withstand CWA's motion to dismiss. Failure properly to allege a breach of the union's duty of fair representation is fatal to an employee's § 301 action against his former employer for wrongful discharge. Barbarino, supra at 1005; DeLorto, ...

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