Christianson v. Pioneer Sand & Gravel Co.

• Decision Date: 28 June 1982
• Docket Number: No. 81-3003,81-3003
• Citation: 681 F.2d 577
• Parties: 110 L.R.R.M. (BNA) 3132, 95 Lab.Cas. P 13,718 Ronald L. CHRISTIANSON, et al., Appellants, v. PIONEER SAND & GRAVEL CO., Division of Lone Star Industries, Inc., Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 577

681 F.2d 577

110 L.R.R.M. (BNA) 3132, 95 Lab.Cas. P 13,718

Ronald L. CHRISTIANSON, et al., Appellants, v. PIONEER SAND & GRAVEL CO., Division of Lone Star Industries Inc., Appellee.

No. 81-3003.

United States Court of Appeals, Ninth Circuit.

June 28, 1982.

Steven B. Frank, Seattle, Wash., for appellants.

Peter M. Anderson, Bogle & Gates, Seattle, Wash., for appellee.

Appeal from the United States District Court for the Western District of Washington.

Before SNEED and BOOCHEVER, Circuit Judges, and HOFFMAN ^*, Senior District Judge.

WALTER E. HOFFMAN, Senior District Judge:

This is an action which originally was brought by union members under § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, against both their local union and their former employer, Lone Star Cement Corporation. Plaintiffs alleged that on or about January 26, 1972, Lone Star violated the seniority provisions of the applicable collective bargaining agreement by removing plaintiffs' names from its seniority list and by not subsequently recalling plaintiffs. They also claimed that their local union breached its duty of fair representation by failing to press plaintiffs' complaints through the grievance and arbitration procedures mandated by the collective bargaining agreement.

This action was commenced in the district court on November 2, 1977, almost six years after the employer's actions of which plaintiffs complain. Both the Local and Lone Star raised the statute of limitations defense in their answers. In August 1978, the Local filed a motion for summary judgment on the grounds that Washington's three-year statute of limitations for tort actions, Wash.Rev.Code § 4.16.080(2), barred plaintiffs' claim against the Local. In response to the Union's motion, both plaintiffs and Lone Star contended that a six-year statute of limitations for actions on a written contract, Wash.Rev.Code § 4.16.080(2), should apply. Noting that all parties seemed to assume that the six-year limitations period would apply against the employer, the district court concluded that the same statute of limitations should apply against the Union in order to allow a single adjudication of the two closely related claims. Accordingly, the Local's motion for summary judgment was denied.

Subsequently, in October 1980, both defendants moved to dismiss on the basis of the statutes of limitations. The Local again contended that the three-year tort statute of limitations barred plaintiffs' action against the Union. Moreover, Lone Star contended that the three-year limitations period provided for actions on oral contracts, Wash.Rev.Code § 4.16.080(3), barred the action against the employer. In support of its contention, Lone Star argued that plaintiffs were not parties to the collective bargaining agreement under which they sought relief and that the applicability of that contract to the plaintiffs depended on a showing of the oral contracts of employment between plaintiffs and Lone Star. The district court granted defendants' motions to dismiss, applying the three-year oral contract statute of limitations against the employer and the three-year tort statute of limitations against the Union. The court specifically noted that its application of the state statutes of limitations preserved a uniform limitations period against the employer and the Union and furthered national labor policy by utilizing a shorter limitations period than the six-year period provided for written contracts.

Plaintiffs-appellants have appealed only as to the ruling on the statute of limitations against their former employer, Lone Star. Therefore, the issue of the applicability of Washington's three-year tort statute of limitations to an action against a union under § 301 of the LMRA is not before this court in this case. ¹ In light of the somewhat unique procedural stance of this case, we must first consider a threshold issue-whether the dismissal of appellants' claim against the Union precludes them from recovering against their former employer.

In Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976), the Supreme Court stated:

To prevail against either the company or the Union, petitioners must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union.

Id. at 570-71, 96 S.Ct. at 1059. Similarly, in United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), the court termed a showing that the union had breached its duty of fair representation an "indispensable predicate" of a § 301 action. The significant question is whether such language can be read to mean, as Justice Stewart suggested in his concurrence in Mitchell, that "a plaintiff must prevail upon his unfair representation claim before he may even litigate the merits of his § 301 claim against the employer." Id. at 67, 101 S.Ct. at 1566 (emphasis added). We conclude that such a requirement certainly is unwarranted in the present case.

Even if Justice Stewart's contention that an employee must prevail on his claim against his union before he can reach the issue involving his employer constitutes a correct statement of the majority's holding in Mitchell, that concept is inapplicable here. Both Mitchell and Hines were suits to vacate arbitration awards. When an arbitration decision has been rendered, the interest in finality of that decision is sufficiently strong to warrant clear evidence of a breach of a union's duty of fair representation before the courts should overturn the arbitration award. In the present case, however, the arbitration process was never reached; in fact, the Union never even processed appellant's grievances. Therefore, the concept of finality, which controlled in Hines and Mitchell, is totally inapposite here.

Absent the special consideration of preserving the finality of arbitration, that was present in Mitchell, we hesitate to apply Justice Stewart's suggestion that an employee must prevail against his union in order to make his claim against the employer for breach of a collective bargaining agreement. The respective breaches of duty by the union and the employer often may be wholly unrelated, and we see no reason why an employee's failure to prevail upon his claim of breach by one of the two should preclude recovery from the other. See Vaca v. Sipes, 386 U.S. 171, 195-98, 87 S.Ct. 903, 919-921, 17 L.Ed.2d 842 (1967); Czosek v. O'Mara, 397 U.S. 25, 29, 90 S.Ct. 770, 773, 25 L.Ed.2d 21 (1970). Such a rule would prove especially harsh where, as here, the employee has lost one of his claims, not on the merits, but on the basis of a statute of limitations.

For further guidance in the context we face in the present case, we look to Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), which involved no final arbitration. Therein, the Court stated:

(W)e think the wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee's grievance. We may assume for present purposes that such a breach of duty by the union is an unfair labor practice, as the NLRB and the Fifth Circuit have held. The employee's suit against the employer, however, remains a § 301 suit, and the jurisdiction of the courts is no more destroyed by the fact that the employee, as part and parcel of his § 301 action, finds it necessary to prove an unfair labor practice by the union, than it is by the fact that the suit may involve an unfair labor practice by the employer himself. The court is free to determine whether the employee is barred by the actions of his union representative, and, if not, to proceed with the case. And if, to facilitate his case, the employee joins the union as a defendant, the situation is not substantially changed.

Id. at 186-87, 87 S.Ct. at 914-915 (footnote omitted). The Court thus made it clear that an employee may sue his employer without joining the union as a defendant. See also Mitchell, 451 U.S. at 73 n.2, 101 S.Ct. at 1569 n.2 (Stevens, J., concurring in part and dissenting in part). Moreover, if the employee must establish the union's breach of duty, he may do so in his § 301 suit against the employer.

We see no material difference between the situation discussed in Vaca v. Sipes, where the employee sues only the employer, and the situation presented here, where the employee originally sues both the union and the employer but, due to the running of the statute of limitations in the action against the union, is able to proceed only against the employer. In either situation, the guiding principle is the same-the employee may make any requisite showing of unfair representation by the union in his suit against the employer.

Having passed the threshold issue of whether appellants' suit against Lone Star is precluded by the dismissal of his case against the Union, we move on to determine whether their claim against Lone Star is barred by the statute of limitations. UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966), clearly established "that the timeliness of a § 301 suit ... is to be determined as a matter of federal law, by reference to the appropriate state statute of limitations." Id. at 705, 86 S.Ct. at 1113 (footnote omitted). In that case, the Court further specified:

We agree that the characterization of this action for the purpose of selecting the appropriate state limitations provision is ultimately a question of federal law. But there is no reason to reject the characterization that state law would impose unless that characterization is unreasonable or otherwise inconsistent with national labor policy.

Id. at 706, 86 S.Ct. at 1113 (citations omitted). Relying on...