The opinion of the court was delivered by: NEAHER
MEMORANDUM OF DECISION AND ORDER
Defendants have moved for summary judgment pursuant to F.R.Civ.P. 56 and to dismiss the complaint pursuant to F.R.Civ.P. 12(b). For the reasons which follow, defendants' motions are granted.
Plaintiff commenced this suit on September 21, 1981. Subsequently, on May 3, 1982, court-appointed counsel filed an amended complaint in eight counts, which invoked this Court's jurisdiction under 28 U.S.C. § 1343(4) and 29 U.S.C. § 185(c) to seek redress against plaintiffs' former employers and the union which represented him. Plaintiff alleges that Triangle Affiliates, Inc. (Triangle) (Counts IV, V, and VI) and Tempco Service Industries, Inc. (Tempco) (Counts I, II, and III), his former employers, each acted in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by discriminating against him in work assignments and on-the-job treatment because he is of Puerto Rican origin. He also claims that he was eventually discharged by Triangle for the same reason. The treatment by Tempco allegedly arose from plaintiff's refusal to participate in a scheme to employ illegal aliens. In addition to Title VII claims, plaintiff alleges that his former employers' conduct was a prima facie tort.
Plaintiff has also sued Local 32B-32J, Service Employees International Union, AFL-CIO (Union) (Counts VII and VIII), under section 301 of the Taft-Hartley Act, 29 U.S.C. § 185, for its alleged failure to have processed his grievances and its breach of its duty to provide fair representation.
The parties are not in dispute upon the following facts. In January 1974 Tempco, which held the maintenance and cleaning services contract at the World Trade Center, hired plaintiff as a porter. Tempco subsequently lost the contract to Triangle in February 1978. At that time, Triangle hired plaintiff as a porter and subsequently discharged him on October 31, 1978.
During the pendency of defendants' motions, the Supreme Court determined that the six-month statute of limitations in § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), should govern actions brought by an employee against his union for a breach of the duty of fair representation. Del Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983). Based upon plaintiff's averment that he registered a complaint with the union "immediately" after his termination from Triangle and that approximately one month later, a union business agent informed him that the union could do nothing for him, the union argues that the suit was not filed within six months of the last possible date upon which the claim against it could have accrued. See Vaca v. Sipes, 386 U.S. 171, 191, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967). Plaintiff responds that Del Costello should not be applied retroactively to bar his claim.
The factors to be considered in determining whether to apply a decision of the Supreme Court prospectively only are stated in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971) (citations omitted):
In our cases dealing with the nonretroactivity question, we have generally considered three separate factors. 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. Second, 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."
All three factors in Chevron must be shown to favor prospective-only application before a decision will be denied retroactive effect. Schaefer v. First National Bank of Lincolnwood, 509 F.2d 1287, 1294 (7th Cir. 1975), cert. denied, 425 U.S. 943, 48 L. Ed. 2d 186, 96 S. Ct. 1682 (1976).
Plaintiff first argues that he relied upon prevailing Second Circuit law that the statute of limitations was three years. Assad v. Mount Sinai Hospital, 703 F.2d 36, 43-44 (2d Cir. 1983). The Court is unable to locate any prevailing Second Circuit law upon this issue as of the time, September 21, 1981, when plaintiff filed his complaint. See Kikos v. International Brotherhood of Teamsters, 526 F. Supp. 110, 115 (E.D. Mich. 1981). The question appears to have been first addressed in Flowers v. Local 2602, etc., 671 F.2d 87 (2d Cir. 1982) (on remand for reconsideration in light of United Postal Service, Inc. v. Mitchell, 451 U.S. 56, 67 L. Ed. 2d 732, 101 S. Ct. 1559 (1981)), which was reversed upon that question as a companion case to Del Costello. Moreover, the Supreme Court foreshadowed its decision in Del Costello with dicta in United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 63, 67 L. Ed. 2d 732, 101 S. Ct. 1559 (1981):
We think that the unfair representation claim made by an employee against his union, even though his employer may ultimately be called upon to respond in damages for it if he is successful, is more a creature of "labor law" as it has developed since the enactment of § 301 than it is of general contract law.
In a concurring and dissenting opinion, Justice Stevens noted the potential application of the ...