Canada v. United Parcel Service, Inc.

• Decision Date: 03 March 1978
• Docket Number: No. 77 C 20033.,77 C 20033.
• Parties: James M. CANADA, Plaintiff, v. UNITED PARCEL SERVICE, INC., an Ohio Corporation, and Highway Drivers, Dockmen, Spotters, Rampmen, Meat, Packing House, and Allied Products Drivers and Helpers, Office Workers and Miscellaneous Employees Local No. 710, International Brotherhood of Teamsters, an unincorporated association, Defendants.
• Court: U.S. District Court — Northern District of Illinois

446 F. Supp. 1048

James M. CANADA, Plaintiff, v. UNITED PARCEL SERVICE, INC., an Ohio Corporation, and Highway Drivers, Dockmen, Spotters, Rampmen, Meat, Packing House, and Allied Products Drivers and Helpers, Office Workers and Miscellaneous Employees Local No. 710, International Brotherhood of Teamsters, an unincorporated association, Defendants.

No. 77 C 20033.

United States District Court, N. D. Illinois, W. D.

March 3, 1978.

Charles E. Box of Connolly, Oliver, Goddard, Coplan & Close, Rockford, Ill., for plaintiff.

Marvin Gittler of Asher, Greenfield, Goodstein, Pavalon & Segall, Ltd., Chicago, Ill., for Local 710.

MEMORANDUM OPINION

GRADY, District Judge.

Plaintiff brought this action against his former employer, United Parcel Service ("U.P.S."), and Union Local 710, claiming he was wrongfully discharged by U.P.S. and that Local 710 arbitrarily refused to prosecute his grievance with the company. Count I contains a Title VII challenge directed against U.P.S., in which the plaintiff contends the company discriminated against him because of his race. 42 U.S.C. § 2000e, et seq. (1970). Count II alleges the Union violated its duty of fair representation under the National Labor Relations Act, 29 U.S.C. §§ 158(b), 159 (1970), by arbitrarily refusing to represent the plaintiff concerning his discharge.

Local 710 has moved to dismiss Count II as barred by the applicable statute of limitations and for failure to state a claim against it. The Magistrate recommends that we grant the motion on the statute of limitations ground. We disagree. The motion is denied in both respects.

Since the National Labor Relations Act provides no specific period for the institution of unfair representation actions, timeliness should be determined by reference to the analogous state statute of limitations. See International U. A. W., AFL-CIO v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 197 (1966).¹ To determine the applicable state limitations period in a suit to vindicate a federal right, the court must consider both the character of the claim asserted and the purpose of the federal act from which the claim derives. Abrams v. Carrier Corp., 434 F.2d 1234, 1251-52 (2d Cir. 1970), cert. denied 401 U.S. 1009, 91 S.Ct. 1253, 28 L.Ed.2d 545 (1971).

When an employee joins an action against a union for breach of the duty of fair representation with an action against the employer for violation of a collective bargaining agreement, the circuits split on whether the fair representation action is properly treated as a tort or contract action. Thus, the First and Fifth Circuits have applied the state limitations for tort actions, even when the Union's breach of duty of fair representation is raised in a § 301 suit to redress the employer's violation of the collective bargaining agreement. de Arroyo v. Sindicato de Trabajadores Packinghouse, AFL-CIO, 425 F.2d 281 (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 (5th Cir. 1973). The First Circuit reasoned that "the union's duty of fair representation to those it represents cannot be considered a `contractual' duty . . . because the Union's breach was not its mere failure to submit plaintiffs' grievances in compliance with the contract but rather its arbitrary, perfunctory failure to do so." de Arroyo, 425 F.2d at 285-86. Moreover, the Union's obligation of fair representation extends to non-members as well as union employees. Clearly there is no basis for a contractual claim by non-union employees; and claims by union and non-union employees should not be treated differently. Id. at 286.

The Second and Eighth Circuits have used the state contracts limitation period in such actions, provided the claim against the Union is presented in a § 301 suit against the employer. Butler v. Teamster Local 823, 514 F.2d 442 (8th Cir.), cert. denied, 423 U.S. 924, 96 S.Ct. 265, 46 L.Ed.2d 249 (1975); Abrams v. Carrier Corp., 434 F.2d 1234 (2d Cir. 1970). The gist of these opinions is that in a joint § 301 action, the same limitation period should apply to the claim against the Union as the claim against the employer. Admittedly, the action against the employer is a contract action, premised on the breach of the collective bargaining agreement. "When the Union's conduct is challenged within the context of a § 301 suit to redress the employer's violation of the collective bargaining agreement, the Union's failure `participates' in the contract violation. . . . Because of the interdependence of the employer's contract violation and the Union's fiduciary violation in the § 301 action, . . . a single statute of limitations is appropriate." Grant v. Mulvihill Bros. Motor Service, Inc., 428 F.Supp. 45, 47 (N.D.Ill.1976). Nonetheless, these courts concede that the Union's failure to fairly represent an employee is tortious in nature. "Conceivably, the courts are persuaded that the Union's breach is a tort because the Union's duty clearly derives from statute, and no underlying contract is obvious." Grant, 428 F.Supp. at 46.

The plaintiff in this action was discharged on February 4, 1975. The complaint was filed on June 3, 1977. The Union contends the proper statute of limitations is two years as provided for tort actions in Illinois, Ill.Rev.Stat. ch. 83, § 15, and that the action is therefore barred. Plaintiff, on the other hand, would have us treat the claim against the Union as governed by one of the contracts limitations provisions — five years for oral contracts, Ill. Rev.Stat. ch. 83, § 16, or ten years for written contracts, Ill.Rev.Stat. ch. 83, § 17. We disagree with both parties and will apply the limitations period which governs statutory causes of action. Ill.Rev.Stat. ch. 83, § 16.²

In the case before us, the claim against the Union is not coupled with a § 301 action against the employer. Rather, Count I, the only claim directed against the U.P.S., alleges a Title VII violation and is not premised on a breach of the collective bargaining agreement. In effect, the breach of fair representation claim in Count II is completely independent of the cause of action asserted against the employer in Count I. Thus, the reasons for applying the contract limitations period are not present in this case. The statutes of limitations will necessarily differ in Title VII and breach of fair representation suits. The claim against the Union is not intimately related to the claim against the employer, nor is there the potential for the apportionment of contract damages between the defendants as exists in joint § 301 actions.

Plaintiff contends this is a § 301 suit and therefore should be governed by the principles established in the Grant case, supra. Clearly the action against the employer is not a § 301 action. Whether the claim against the Union can be so characterized may also be questioned. See Waters v. Wisconsin Steel Works of International Harvester Co., 427 F.2d 476, 490-91 (7th Cir.), cert. denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970),³ and de Arroyo, 425 F.2d at 287. Grant, however, is specifically limited to cases "when an employee pursues a claim that the Union breached its duty of fair representation in a § 301 action against the employer for breach of the collective bargaining agreement." 428 F.Supp. at 48. Plaintiff's reliance on the case is thus misplaced. In fact, a later opinion also by Judge Marshall presents the more analogous situation. In Perez v. Majonnier Brothers Co., Civil No. 76 C 1700 (N.D.Ill., May 23, 1977), the plaintiff sued his former employer under Title VII and the Union for breach of fair representation. The court dismissed the suit against the Union as barred by the tort limitations period, noting the distinction in cases where the claim is raised in the context of a suit to redress an alleged violation of the labor contract.

Since Perez was decided, the Seventh Circuit held in Beard v. Robinson, 563 F.2d 331 (7th Cir. 1977), that the Illinois five year statute of limitations applies to statutory claims brought under the Civil Rights Acts. We find the reasoning of the Court of Appeals compelling and will follow it in this case. Section 16 of the Illinois Limitations Act, Ill.Rev.Stat. ch. 83, § 16, establishes a five year limitations period for "all civil actions not otherwise provided for." Illinois courts have applied this five year catch-all period to causes of action created by statute. Blakeslee's Storage Warehouses v. City of Chicago, 369 Ill. 480, 17 N.E.2d 1, 4 (1938). The Seventh Circuit reasoned that civil rights actions are fundamentally different from common law torts. Since they are based on a liability created by statute, civil...