Abernathy v. U.S. Postal Service, 82-1845

• Decision Date: 03 August 1984
• Docket Number: No. 82-1845,82-1845
• Citation: 740 F.2d 612
• Parties: 116 L.R.R.M. (BNA) 3429 James ABERNATHY, Appellant, v. UNITED STATES POSTAL SERVICE, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 612

740 F.2d 612

116 L.R.R.M. (BNA) 3429

James ABERNATHY, Appellant, v. UNITED STATES POSTAL SERVICE, Appellee.

No. 82-1845.

United States Court of Appeals Eighth Circuit.

Submitted March 16, 1984.

Decided Aug. 3, 1984.

William R. Merryman, Wickersham & Merryman, Kansas City, Mo., for appellant.

Robert G. Ulrich, U.S. Atty., Judith M. Strong, Asst. U.S. Atty., W.D. Mo., Kansas City, Mo., Stephen E. Alpern, Associate Gen. Counsel, U.S. Postal Service, Washington, D.C., Gregg R. Sackrider, Senior

Asst. Regional Labor Counsel, U.S. Postal Service, Chicago, Ill., for appellee.

Before ROSS, JOHN R. GIBSON and BOWMAN, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

James Abernathy brought this action to set aside an arbitrator's award sustaining his discharge from the United States Postal Service. He appeals from the dismissal of his complaint. The district court ¹ held that Abernathy's action against the Postal Service under 39 U.S.C. Sec. 1208 (1982) was subject to the Missouri statute of limitations on actions challenging arbitration awards, Mo.Rev.Stat. Sec. 435.120 (1978), and that failure to give ten days notice to the adverse party as that statute required barred Abernathy's action. It also concluded that, absent a claim of inadequate union representation, review of the arbitrator's award was foreclosed under the terms of the collective bargaining agreement, and that 39 U.S.C. Sec. 1005(a) (1982) did not authorize judicial review of an arbitrator's findings and rationale. On appeal, Abernathy argues that the district court erred in its rulings. He specifically contends that he should have been permitted to amend his complaint to substitute as party plaintiff the union which, unlike Abernathy, could legally challenge a binding arbitration decision. We conclude, in light of recent Supreme Court authority, that section 10(b) of the National Labor Relations Act, 29 U.S.C. Sec. 160(b) (1982), with its six-month statute of limitations is applicable to Abernathy's claim, and that he therefore timely filed his complaint. We affirm the dismissal of the complaint, however, because we conclude that the award was final.

The United States Postal Service discharged Abernathy for submitting fraudulent documents to obtain paid leave. His union filed a grievance and took the matter to arbitration pursuant to the collective bargaining agreement. The arbitrator upheld Abernathy's discharge, finding that documents supposedly signed by Abernathy's military commanding officer, stating that his active duty had been extended one day because of the eruption of Mount St. Helens, were false, and that Abernathy had actually returned to Kansas City in time to report for work. Under the collective bargaining agreement, arbitration decisions are final and binding.

Seeking reinstatement, Abernathy brought this action against the Postal Service to have the arbitration decision declared null and void. He alleged that the decision was not rendered within thirty days of the hearing, as required under the collective bargaining agreement, but in excess of one hundred days; that the arbitrator improperly interpreted the legal effect of the collective bargaining agreement; that the award was arbitrary, capricious and without foundation in law or fact; that the arbitrator exceeded his jurisdiction by going beyond the terms of the agreement; and that the award was not derived from the terms and provisions of the collective bargaining agreement. Abernathy also claimed that the delay denied him his rights of due process under the fourteenth amendment.

The district court, in an order entered June 10, 1982, rejected the government's contention that the ninety-day federal statute of limitations governing arbitration challenges, 9 U.S.C. Sec. 12 (1982), should apply. Instead, the court concluded that, because the language of 39 U.S.C. Sec. 1208(b) was identical to that of section 301(a) of the Labor Management Relations Act, 29 U.S.C. Sec. 185 (1982), then under the holding of Internat'l Union v. Hoosier Cardinal Corp., 383 U.S. 696, 704-05, 86 S.Ct. 1107, 1112-13, 16 L.Ed.2d 192 (1966), the analogous state statute of limitations would apply. It further concluded that the most appropriate statute of limitations would be that governing arbitration award challenges. Accordingly, the district court applied Mo.Rev.Stat. Sec. 435.120, ² which not only required such actions to be filed at the next term of court ³ but also required that the adverse party be notified in writing at least ten days beforehand. Because such notice had not been given, Abernathy's action was held barred. The district court also held that because Abernathy had not alleged inadequate union representation, the decision of the arbitrator would be final and binding. It rejected Abernathy's due process argument, concluding that any right bestowed was simply to utilize the procedures provided in the collective bargaining agreement, and finding that the thirty-day time period for rendering an award was not mandatory.

After Abernathy's case was appealed to this court, we held it in abeyance pending the Supreme Court's decision in DelCostello v. Internat'l Brotherhood of Teamsters, --- U.S. ----, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). The district court, of course, did not have the benefit of DelCostello, which was decided nearly a year after its order.

I.

We must determine what statute of limitations governs an action brought under section 1208(b) of the Postal Reorganization Act, 39 U.S.C. Sec. 1208(b), against the United States Postal Service for breach of a collective bargaining agreement. Section 1208(b), like its private sector counterpart, section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185, contains no statute of limitations and thus requires that an appropriate one be borrowed. Because section 1208(b) is essentially identical to section 301, see Bowen v. United States Postal Service, 459 U.S. 212, 103 S.Ct. 588, 74 L.Ed.2d 402 (1983), we may properly rely upon case law concerning the borrowing of a statute of limitations in section 301 actions.

In Internat'l Union v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966), the Supreme Court held that the timeliness of a union's section 301 action against an employer to recover accumulated vacation pay was to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations. Id. at 704-05, 86 S.Ct. at 1112-13. Interpreting Hoosier Cardinal, we determined in Butler v. Local Union 823, Internat'l Brotherhood of Teamsters, 514 F.2d 442 (8th Cir.), cert. denied, 423 U.S. 924, 96 S.Ct. 265, 46 L.Ed.2d 249 (1975), that the state statute of limitations for actions based on written contracts governed an employee's suit brought both against the employer for breach of a collective bargaining agreement under section 301, and against the union for breach of the duty of fair representation. The district court in the present case relied upon Hoosier Cardinal and Butler in concluding that the Missouri statute of limitations applied.

In United Parcel Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), the Supreme Court considered which of two state statutes of limitations should apply to an employee's section 301 action against the employer, brought specifically to vacate an arbitration award. In choosing between the two, the Court emphasized that federal labor law policies supported the imposition of the shorter limitations period. The Court expressly left open the questions of whether its holding would apply to an employee's action against a union, as the union defendant had not sought certiorari, and whether a federal statute should apply, as neither party had raised that issue.

In DelCostello v. Internat'l Brotherhood of Teamsters, --- U.S. ----, 103 S.Ct. 2281, 76 L.Ed.2d 476, the Supreme Court resolved the questions it had left open in Mitchell. DelCostello involved two consolidated cases, one challenging a labor arbitration award, the other challenging a decision of a joint union-management committee. Each suit had been brought by an employee against his employer, alleging violation of the collective bargaining agreement, as well as against his union, alleging violation of the duty of fair representation. In one case, the Fourth Circuit had held that both the claim against the employer and the claim against the union were subject to Maryland's thirty-day statute of limitations for actions to vacate arbitration awards. In the other case, the Second Circuit had decided that New York's ninety-day arbitration statute of limitations applied to the claim against the employer, while that state's three-year statute of limitations for legal malpractice actions applied to the claim against the union. The Supreme Court consolidated the cases to consider whether the six-month limitations period of section 10(b) of the National Labor Relations Act, 29 U.S.C. Sec. 160(b) (1982), should apply instead.

In a thorough analysis of its earlier decisions, particularly Mitchell and Hoosier Cardinal, the Supreme Court decided that this federal statute of limitations should apply, and that it should apply to both types of claims. The Court characterized the two causes of actions as follows:

The suit against the employer rests on Sec. 301, since the employee is alleging a breach of the collective bargaining agreement. The suit against the union is one for breach of the union's duty of fair representation, which is implied under the scheme of the National Labor Relations Act. "Yet the two claims are inextricably interdependent. 'To prevail against either the company or the Union, ... [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating a breach of duty by the Union.' "

DelCostello, --- U.S. at ----, 103 S.Ct. at 2290 (quoting Mitchell, 451 U.S. at 66-67, 101 S.Ct....