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MELIN v. ARCATA GRAPHICS BUFFALO DIV.

February 7, 1983

JOSEPH MELIN, Plaintiff,
v.
ARCATA GRAPHICS (Buffalo Division), GRAPHIC ARTS INTERNATIONAL UNION, LOCAL 17-B, Defendants



The opinion of the court was delivered by: ELFVIN

MEMORANDUM and ORDER

 Plaintiff, a former employee of defendant Arcata Graphics ("Arcata"), claims that he was discharged by Arcata December 10, 1979 without good cause in violation of a collective bargaining agreement then in effect between Arcata and defendant Graphic Arts International Union, Local 17-B ("Local 17-B"). He further claims that Local 17-B arbitrarily and in bad faith refused to properly process a grievance filed by him in connection with his discharge. Plaintiff asserts causes of action against Local 17-B for breach of its duty of fair representation and against Arcata for violation of the collective bargaining agreement. Defendants have moved to dismiss the Complaint on the grounds that it is barred by the appropriate statute of limitations.

 Section 301(a) (29 U.S.C. § 185(a)) of the Labor Management Relations Act ("the LMRA") provides that:

 
"Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce * * * may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties."

 An action for breach of a collective bargaining agreement may be maintained by an individual employee under section 301 if the action involves "uniquely personal" rights -- such as, wages, hours, overtime pay or wrongful discharge. Hines v. Anchor Motor Freight, 424 U.S. 554, 562, 47 L. Ed. 2d 231, 96 S. Ct. 1048 (1976). See, Smith v. Evening News Assn., 371 U.S. 195, 9 L. Ed. 2d 246, 83 S. Ct. 267 (1962).

 A union's duty to represent fairly members of its collective bargaining unit arises from the subordination of the members' individual interests to the general interests of all members of the unit under the collective bargaining system. Vaca v. Sipes, 386 U.S. 171, 182, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967). The duty of fair representation serves to prevent arbitrary conduct by the union against the employees it represents. Hines v. Anchor Motor Freight, supra, at 564. The duty is breached when a union's conduct towards a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, supra, at 190. A union's arbitrary refusal or failure to process an employee's grievance may violate its duty of fair representation. Id., at 191.

 Congress has not established a limitations period for the commencement of actions under section 301. Nor is there an express federal statute of limitations applicable to a cause of action for a union's breach of its duty of fair representation. Defendants argue that the six-month limitations period prescribed by section 10(b) of the National Labor Relations Act ("the NLRA"), 29 U.S.C. § 160(b), applies to plaintiff's claims in the current case. Because the Complaint was filed approximately fourteen months after plaintiff was discharged, and approximately thirteen months after Arcata denied plaintiff's initial grievance, defendants contend that this action is time-barred. On the other hand, plaintiff maintains that the appropriate limitations period is found in section 213(2) of New York's Civil Practice Law and Rules ("CPLR"), which sets a six-year period for "an action upon a contractual obligation or liability * * *."

 Because there is no federal statutory provision setting a limitations period for an action under section 301, the United States Supreme Court has stated that the timeliness of such an action must "be determined, as a matter of federal law, by reference to the appropriate state statute of limitations." Auto Workers v. Hoosier Corp., 383 U.S. 696, 704-5, 86 S. Ct. 1107, (1966). See also, Johnson v. Railway Express Agency, 421 U.S. 454, 462, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975). Thus, United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 67 L. Ed. 2d 732, 101 S. Ct. 1559 (1981), was an action by an employee against his former employer and union in which the employee claimed that he was discharged in violation of the collective bargaining agreement and that the union breached its duty of fair representation. A grievance and arbitration proceeding had resulted in a decision upholding the discharge. In holding that the district court had properly dismissed the complaint, the Court concluded that the appropriate limitations period was established by section 7511(a) of the CPLR, which governs proceedings to vacate or modify arbitration awards, rather than CPLR § 213(2).

 However, in a concurring opinion in Mitchell, Justice Stewart argued that Auto Workers v. Hoosier Corp., supra, does not require application of the most appropriate statute of limitations under state law. Rather, he suggested that, where a plaintiff joins claims for breach of the duty of fair representation and under section 301 of LMRA, the limitations period set by section 10(b) of the NLRA is controlling. United Parcel Serv., Inc. v. Mitchell, supra, at 65. In a separate concurring opinion, Justice Blackman indicated general approval of Justice Stewart's analysis. Id., at 64-65. The majority expressly declined to consider whether the six-month NLRA limitations period should be applied because the issue had not been properly presented. Id., at 60, n.2.

 Justice Stevens, concurring in part and dissenting in part in United Parcel Serv., Inc. v. Mitchell, supra, at 74-76, criticized Justice Stewart's argument that section 10(b) of the NLRA controlled the timeliness of an action for breach of the duty of fair representation. As Justice Stevens noted, section 10(b) speaks only in terms of administrative procedures under the NLRA and there is "nothing in the statutory language [which] suggests that Congress intended that this 6-month limitations period be applied in any other context." Id., at 75-76, n.8. Justice Stevens also observed that Congress enacted the six-month limitations period several years before the Supreme Court recognized that the duty of fair representation is imposed on a union by the NLRA. Id., at 76, n.9. Justice Stevens also suggested that a different limitations period could be applied to a claim for wrongful discharge against an employer than to a claim for unfair representation against a union. However, because the union had not participated in the petition for certiorari, this issue was not squarely presented to the Court.

 Justice Stewart's analysis in Mitchell squarely supports defendants' argument that plaintiff's claims in the present case are untimely. Nevertheless, I decline to adhere to said analysis in view of the decisions of the United States Court of Appeals for the Second Circuit in Abrams v. Carrier Corporation, 434 F.2d 1234 (2d Cir. 1970), cert. denied 401 U.S. 1009, 91 S. Ct. 1253, 28 L. Ed. 2d 545 (1971), and Flowers v. Local 2602 of the United Steel Workers of America, 671 F.2d 87 (2d Cir. 1982). *fn1"

 In Abrams, the Court stated that:

 
"* * * when a § 301 suit is brought against an employer alleging breach of the collective bargaining agreement in conjunction with a claim that the union breached its fair representation duty to pursue the employee's grievance, the same period of limitations should be applied to both claims." Abrams v. Carrier Corporation, supra, at 1252.

 The court further held that the applicable limitations period was the six-year period set out in CPLR § 213(2). Id., at 1253. Other courts have also applied a contracts statute of limitations to suits in which the plaintiff joins claims under section 301 of the LMRA against his employer and for breach of the duty of fair representation against his union. See, e.g., Butler v. Local U. 823, Int. Bro. of Teamsters, 514 F.2d 442, 446-48 (8th Cir.), cert. denied 423 U.S. 924, 96 S. Ct. 265, 46 L. Ed. 2d 249 (1975); Grant v. Mulvihill Bros. Motor Serv., Inc., 428 F. Supp. 45 (N.D.Ill. 1976); Falsetti v. Local Union No. 2026, United Mine Workers, 249 F. Supp. 970 (W.D.Pa. 1965), aff'd 355 F.2d 658 (3d Cir. 1966). Although Abrams expressly avoided establishing a hard and fast rule that the contracts statute of limitations should always be applied to a claim based on breach of the duty ...


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