806 F.2d 1324 (7th Cir. 1986), 85-2597, Bonds v. Coca-Cola Co.

Docket Nº:85-2597.
Citation:806 F.2d 1324
Party Name:Johnnie BONDS, et al., Plaintiffs-Appellants, v. The COCA-COLA COMPANY, et al., Defendants-Appellees.
Case Date:December 03, 1986
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1324

806 F.2d 1324 (7th Cir. 1986)

Johnnie BONDS, et al., Plaintiffs-Appellants,

v.

The COCA-COLA COMPANY, et al., Defendants-Appellees.

No. 85-2597.

United States Court of Appeals, Seventh Circuit

December 3, 1986

Argued Sept. 22, 1986.

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Jacob N. Gross, Jacob N. Gross, Ltd., Abramson & Fox, Chicago, Ill., for plaintiffs-appellants.

Marvin Gittler, Asher Pavalon Gittler & Greenfield, Ltd., Lawrence L. Summers, Vedder, Price, Kaufman & Kammholz, Chicago, Ill., for defendants-appellees.

Before FLAUM and EASTERBROOK, Circuit Judges, and SWYGERT, Senior Circuit Judge.

EASTERBROOK, Circuit Judge.

Johnnie Bonds and 36 other truck drivers were employed by Midwest Machinery Movers under an industry-wide collective bargaining agreement to which Midwest and Local 710 of the Teamsters were parties. Midwest provided transportation services for The Coca-Cola Company. In 1982 Coca-Cola moved some of its operations from Chicago to St. Paul, Minnesota. It terminated its contract with Midwest, which in turn laid off the drivers. The drivers, asserting that Midwest was an alter ego of Coca-Cola, invoked a provision of the collective bargaining agreement providing that employees may transfer to follow the work. Midwest denied the request, because it had not transferred any work to St. Paul, and Coca-Cola, which was not a party to the collective bargaining agreement, denied that it had obligations to the drivers.

The drivers asked their union to represent them in this dispute. Local 710 presented the drivers' claim to the Joint

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Area Council, an arbitral body including representatives of labor and management, on December 15, 1982. The drivers contend that Local 710's agent did not press their case before the Council, and that the labor representative on the Council voted with management to reject the claim. On July 28, 1983, more than seven months later, some of the drivers filed this hybrid contract and duty of fair representation action under Sec. 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185, against Local 710, Midwest, and Coca-Cola. After the completion of discovery and some preliminary skirmishing, the district court granted summary judgment for defendants. The court held that the suit is untimely under DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), which established that hybrid Sec. 301 actions must be filed within six months after the claim accrues.

The drivers argue that DelCostello does not apply to this case because it was decided on June 8, 1983, only seven days before the date that the district court held was the last on which the drivers could have filed and therefore "was not in the public domain within the period of limitation held by the court below." We take this to be an argument that DelCostello is not retroactive. It is an argument we have rejected in several cases, none acknowledged by the drivers. E.g., Landahl v. PPG Industries, Inc., 746 F.2d 1312 (7th Cir.1984), pointing out that until DelCostello this court had applied an even shorter period of limitations.

The drivers' principal argument is that the claim did not accrue until mid-February 1983. It is undisputed for current purposes that, shortly after the Council's decision, the business agent of Local 710 told some of the drivers that the union would commence litigation to challenge the Council's decision, and that on January 20, 1983, the union's lawyer told three of the drivers that such litigation had no prospect of success, implying that none would be pursued. The drivers claim--and this is hotly disputed--that the others did not learn until mid-February that the union would not sue, because until then Local 710's business agent continued to represent that the union would act. The drivers contend both that the failure to sue was a breach of the duty of fair representation and that until they learned of the decision not to sue they did not know that the union had been against them all along. (They also contend that the union's negotiation of an agreement with Midwest rather than Coca-Cola violated the duty of fair representation.) Because the failure to sue was a breach of duty by the drivers' lights, they insist that the claim did not "accrue" until mid-February.

The district judge relied on Freeman v. Teamsters, 746 F.2d 1316 (7th Cir.1984), for the proposition that the claim accrued the date the Council decided against the drivers. We held in Freeman that the failure to contest an arbitration award in court cannot be a breach of the duty of fair representation. Arbitral awards are binding, and courts sustain them except in the most extraordinary circumstances. We discourage efforts to upset these awards. E.g., Dreis & Krump Mfg. Co. v. Machinists, 802 F.2d 247 (7th Cir.1986). A union is never obliged to contest an award in court in order to discharge its duty of fair representation, and a suit is likely to be met with an award of attorneys' fees to the other side, as it was in Dreis & Krump. We therefore held in Freeman that the date of the arbitrator's decision is the critical one for purposes of DelCostello, because on that date the employees know or could discover that they have a potential claim against their union. See Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299, 304 (7th Cir.1983), cert. denied, 464 U.S. 1070, 104 S.Ct. 976, 79 L.Ed.2d 214 (1984). The drivers do not discuss Freeman in either their opening or their reply brief. It is dispositive against them. See also the decision on remand from the Supreme Court in DelCostello v. Teamsters, 588 F.Supp. 902 (D.Md.1984), affirmed, 762 F.2d 1219 (4th Cir.1985), rejecting

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an argument almost identical to the one presented by the drivers.

There might have been room for an argument based on equitable tolling. The drivers might have argued that although the claim accrued in December 1982, it was tolled by the union's promise to sue, and perhaps such an argument is implied by their position. The tolling lasted until February 1983, the argument might proceed, because not until February were all of the plaintiffs told that the union was on management's side.

This is a problematic line of argument. DelCostello emphasized the importance of expeditious resolution of hybrid claims under Sec. 301. Freeman establishes a readily ascertainable time when the claim accrues, if the union has taken it to arbitration. A rule that contemplation of suit tolls the time is equivalent to the rule rejected in Freeman--that the claim does not accrue until the union has decided not to file a suit. Many unions will discuss litigation; discussion may or may not be taken as a promise to sue; to use open discussion to enlarge the time for suit is to extend from six to nine months the effective period of limitations. (The union would have had 90 days to file a suit, see Dreis & Krump, 802 F.2d at 249-251.) In the process all certainty would be lost, as this case demonstrates. Now more than three years...

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