Price v. Southern Pacific Transp. Co.

• Citation: 586 F.2d 750
• Decision Date: 24 November 1978
• Docket Number: AFL-CIO,No. 114,77-2433,Nos. 77-1322,114,s. 77-1322
• Parties: 100 L.R.R.M. (BNA) 2671, 85 Lab.Cas. P 11,039 L. D. PRICE, Plaintiff-Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY; System FederationRailway Employees; Department,; International Brotherhood of Firemen, Oilers, Helpers, Roundhouse and Railway Shop Laborers; and Willie T. Thomas, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 750

586 F.2d 750

100 L.R.R.M. (BNA) 2671, 85 Lab.Cas. P 11,039

L. D. PRICE, Plaintiff-Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY; System Federation

No. 114 Railway Employees; Department, AFL-CIO;

International Brotherhood of Firemen, Oilers, Helpers,

Roundhouse and Railway Shop Laborers; and Willie T. Thomas,

Defendants-Appellees.

Nos. 77-1322, 77-2433.

United States Court of Appeals,

Ninth Circuit.

Nov. 24, 1978.

Jack Siedman (argued), San Francisco, Cal., for plaintiff-appellant.

William F. Adams (argued), San Francisco, Cal., William J. Hickey (argued), Washington, D. C., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before SNEED and KENNEDY, Circuit Judges, and DUMBAULD, ^* District Judge.

SNEED, Circuit Judge:

This suit has its origin in an event which occurred on May 25, 1972. The plaintiff, Price, then employed by defendant, Southern Pacific Transportation Co. (SP), left without authority the area within which he worked to get "a bite to eat" and while away was involved in an automobile accident that resulted in his hospitalization for a period of time and prevented an immediate return to work.

As it turned out Price never returned to work. In condensed form the subsequent events are as follows. After several postponements in keeping with Price's wishes, and several failures on the part of Price to keep appointments to discuss his case with union officials, a hearing pursuant to the collective bargaining agreement between SP and International Brotherhood of Firemen, Oilers, Helpers, Roundhouse and Railway Shop Laborers (Union) was held on October 24, 1972. Thomas, Price's brother-in-law and Local Chairman of the Union, attended the hearing and at Price's request represented him in the proceedings. At the hearing Price admitted that his absence from the work area violated Rule 810 of SP's General Rules and Regulations and a foreman at the SP yard testified that Price had no authority to leave the yard on that day. Although the record of this case reflects that absences from the work area to get "a bite to eat" without specific authority were not rare events, neither Thomas nor Price developed this point at the October 24, 1972 hearing. After the hearing was closed SP notified Price on October 27, 1972 that he was discharged for violating Rule 810.

No grievance in behalf of Price was filed by Thomas or Price. However, Thomas, by reason of a specific request by Price, wrote a letter to SP requesting reinstatement of Price on a leniency basis. The request was denied on March 8, 1973. Well over a year later, in July 1974, Price filed suit in state court against SP for wrongful discharge. In due course, this suit was removed on motion of SP to the federal district court where on May 7, 1975 an amended complaint was filed. On April 29, 1976, Price's second amended complaint was filed in which he sought recovery against SP and the Union on the authority of Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). The second amended complaint set forth five causes of action, two against each defendant and one against both defendants. The first against SP asserted, as did the original complaint, a wrongful discharge in violation of the Railway Labor Act, 45 U.S.C. § 152, in which Price's unauthorized absence was used as a "pretext" to deprive him of a "coordination allowance" provided to certain employees by reason of a mediation agreement following a reduction in force by SP. The second cause of action against SP merely alleged a wrongful discharge by reason of the collective bargaining agreement and "federal law" and sought reinstatement with full seniority and fringe benefits. The third cause of action was asserted against both the SP and the Union and charges they "conspired and colluded . . . to unfairly, inadequately, and discriminatively represent" Price at all stages of the grievance procedure. The remedy sought was recovery of the "coordination allowance." The fourth and fifth causes of action are directed against the Union and charge it, as well as Thomas, with perfunctory, inadequate, unfair, and discriminatory representation. All relief heretofore described is set forth in general prayer at the conclusion of this second amended complaint.

After discovery and the submission of affidavits the district court, in August 1976, granted SP's motion for summary judgment and denied that of the Union. In May 1977 the district court reversed itself and granted summary judgment to the Union. In these appeals Price contends the district court erred in granting all defendants summary judgment. We have reviewed the record carefully and, although the Union's representation of Price does not reflect impassioned zeal, we affirm the judgments of the district court.

I.

LIMITATIONS.

At the threshold we are met with a limitations question. If the suit against the Union and Thomas is untimely, suit against the SP is also improper because Price's claims against SP are within the exclusive jurisdiction of the National Railway Adjustment Board under the teaching of Andrews v. Louisville & Nashville R. R. Co., 406 U.S. 320, 325, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972). Under Andrews even "wrongful discharge" cases remain subject to the Railway Labor Act's mandatory grievance procedure. Price's failure to utilize this procedure does not serve to open the doors of the federal court to him.

Access to such court depends upon an allegation by the discharged employee that the union of which he is a member breached its duty of fair representation. See Czosek v. O'Mara, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970). Joinder of the employer is permissible when, as in this case, the employee alleges that the employer is implicated in the union's breach of its duty of fair representation. See Kaiser v. Local No. 83, 577 F.2d 642 (9th Cir. 1978). Price's allegations in this case make it unnecessary to decide whether in a case subject to the Railway Labor Act the mere "taint" of the discharge procedure by the union's breach of its duty of fair representation provides a basis for joinder of the employer carrier in the employee's suit against the union. The issue was left open in Czosek v. O'Mara, supra. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976), a case governed by Section 301, of the Labor Management Relations Act, 29 U.S.C. § 185, may suggest an affirmative answer, but the issue need not be confronted in this case.

The issue is simply whether Price's cause of action against the Union was brought within the period allowed by the applicable statute of limitations. Resolution of this issue turns out to be somewhat complex. As will appear, we hold that Price's claim against the Union is not barred by limitations.

We commence with the proposition that the timeliness of Price's suit against the Union and Thomas is governed by the "appropriate" state statute of limitations. International Union, UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). Choice of the "appropriate" state statute requires that the cause of action against the Union be characterized properly. Characterization is a federal question. Butler v. Local 823, International Brotherhood of Teamsters, 514 F.2d 442, 446 (8th Cir.), Cert. denied, 423 U.S. 924, 96 S.Ct. 265, 46 L.Ed.2d 249 (1975).

Proper characterization of an action charging breach of a duty to provide fair representation is a matter of dispute within the Circuits. Id. at 447. The First and Fifth Circuits have characterized the action as one in tort. De Arroyo v. Sindicato de Trabajodores Packinghouse, AFL-CIO, 425 F.2d 281, 286-87 (1st Cir.), Cert. denied, 400 U.S. 877, 91 S.Ct. 117, 27 L.Ed.2d 114 (1970); Sanderson v. Ford Motor Co., 483 F.2d 102, 114 (5th Cir. 1973). On the other hand, two circuits, the Second and Eighth, characterize it as one on a written contract while the Sixth treats it as one "created by statute." Butler v. Local 823, International Brotherhood of Teamsters, supra (contract); Abrams v. Carrier Corp., 434 F.2d 1234 (2d Cir. 1970), Cert. denied, 401 U.S. 1009, 91 S.Ct. 1253, 28 L.Ed.2d 545 (1971) (contract); Gray v. Heat & Frost Insulators & Asbestos Workers Local 51, 416 F.2d 313 (6th Cir. 1969) (statute). The preference for the shorter tort limitations period rests on the resemblance of the duty of fair representation to duties frequently imposed by tort law and a desire to protect the unions from many claims against which, because of the passage of time, it is difficult to defend. The longer written contract period rests on a desire to subject both employer and union to the same limitations period so as to afford complete relief to the employee and to permit a fair apportionment of damages between employer and union.

Each position has merit. We believe, however, we should look to the source of the union's duty of fair representation for aid in characterizing the action for limitations purposes. That source is, inescapably, "a federal obligation which has been judicially fashioned from national labor statutes." Abrams v. Carrier Corp., supra, at 1251. We recognized...