Communications Workers of America v. American Tel. & Tel. Co., 92-7103

• Decision Date: 17 December 1993
• Docket Number: No. 92-7103,92-7103
• Citation: 10 F.3d 887
• Parties: 145 L.R.R.M. (BNA) 2022, 304 U.S.App.D.C. 112, 127 Lab.Cas. P 10,959 COMMUNICATIONS WORKERS OF AMERICA, Appellant, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 887

10 F.3d 887

145 L.R.R.M. (BNA) 2022, 304 U.S.App.D.C. 112,

127 Lab.Cas. P 10,959

COMMUNICATIONS WORKERS OF AMERICA, Appellant, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY.

No. 92-7103.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 22, 1993.

Decided Dec. 17, 1993.

Appeal from the United States District Court for the District of Columbia (90cv2955).

James B. Coppess, with whom Gerard C. Boyle, Washington, DC, was on the brief, for appellant.

Stephen W. Robinson, with whom Clifford R. Oviatt, Jr., Washington, DC, was on the brief, for appellee.

Before: SILBERMAN and RANDOLPH Circuit Judges; COFFIN, ^* Senior Circuit Judge, United States Court of Appeals for the First Circuit.

Opinion for the Court filed by Senior Circuit Judge COFFIN.

COFFIN, Senior Circuit Judge:

This is an action brought by the Communications Workers of America (union) under Sec. 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. Sec. 185, seeking to compel American Telephone and Telegraph Company (AT & T) to engage in arbitration concerning a grievance filed on behalf of an employee. The issue is whether the complaint seeking to compel arbitration was timely filed. The answer depends on whether the applicable law is the six-month federal statute of limitations borrowed from Sec. 10(b) of the National Labor Relations Act (NLRA), 29 U.S.C. Sec. 160(b), or the three-year period governing contracts in the District of Columbia, D.C.Code Sec. 12-301(7). The district court, noting the extensive litigation in other circuits and the absence of controlling authority in this circuit, sensibly passed the issue to this court without any elaborating opinion. It followed the authority of seven other courts of appeals which have held applicable the six-month period under Sec. 10(b), and dismissed the union's complaint with prejudice. Discerning no persuasive reason why we should create a significant split among the circuits, we affirm.

The essential facts are as follows: An AT & T employee was allegedly wrongfully terminated. The union instituted a challenge to the discharge and won an arbitration award ordering the employee's reinstatement. However, during the employee's absence, his position and pay levels were upgraded. Notwithstanding this, AT & T refused to reinstate him in the upgraded position with compensation for lost wages at the higher level.

In April 1989, the union instituted a new grievance. On November 28, 1989, the union referred the grievance to arbitration. Two months later, on February 8, 1990, AT & T refused arbitration. Eight months later, on December 5, 1990, the union filed the instant complaint seeking to compel arbitration. AT & T filed a motion to dismiss, and the district court subsequently issued an order dismissing the complaint with prejudice. The union appealed.

We first take note of the present state of the law in the federal circuits on the appropriate statute of limitations to apply in an action to compel arbitration under Sec. 301. Seven circuits have adopted the Sec. 10(b) six-month period. ¹ The Eleventh Circuit has applied the Sec. 10(b) period where the state statute of limitations period was six years inInternational Association of Machinists v. Allied Products Corp., 786 F.2d 1561 (11th Cir.1986), but it rejected the six-month period in favor of a slightly longer one-year state limitations period in United Paperworkers International v. ITT Rayonier, Inc., 931 F.2d 832 (11th Cir.1991). This overwhelming, almost unanimous circuit support for the Sec. 10(b) standard has achieved a uniformity from which we would not lightly depart. The appellant, accordingly, bears a considerable burden in attempting to persuade us that we should in effect step forward as the only circuit unambiguously to endorse recourse to analogous state limitation periods.

Our guidance in determining the appropriate limitations period, since there is no provision in the LMRA applicable to Sec. 301, is set forth in DelCostello v. Teamsters, 462 U.S. 151, 172, 103 S.Ct. 2281, 2294-95, 76 L.Ed.2d 476 (1983). In that case, the Court laid down the following prescription:

[W]hen a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking, we have not hesitated to turn away from state law.

The Court in DelCostello was faced with two consolidated hybrid Sec. 301 suits, each brought by the union members against their employers alleging breach of contract and against their union because of a failure to fairly represent them in an arbitration. Both companies and unions had agreed upon settlements, which plaintiffs sought to vacate. In each of the cases the Sec. 10(b) limitations period had expired.

The Court refused to follow the earlier authority of Auto Workers v. Hoosier Cardinal, 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966), which, in a case involving arbitration, applied a state limitations period to a Sec. 301 action seeking vacation pay benefits allegedly due under the collective bargaining agreement. The Court was sensitive to the fact that the fair representation case before it constituted a direct challenge to an existing settlement and that the allegation of the union's breach of duty of fair representation affected the entire relationship between the company and the union. It said:

This system, with its heavy emphasis on grievance, arbitration, and the "law of the shop," could easily become unworkable if a decision which has given "meaning and content" to the terms of an agreement, and even affected subsequent modifications of the agreement, could suddenly be called into question as much as [three] years later.

462 U.S. at 169, 103 S.Ct. at 2293 (quoting United Parcel Serv. v. Mitchell, 451 U.S. 56, 63-64, 101 S.Ct. 1559, 1564-65, 67 L.Ed.2d 732 (1981)).

Accordingly, the Court concluded that the Sec. 10(b) limitations period of six months was the more appropriate period because of its consistency with the policy favoring the grievance-arbitration dispute resolution system. The later case of Reed v. United Transportation Union, 488 U.S. 319, 109 S.Ct. 621, 102 L.Ed.2d 665 (1989), involved an issue under Title I of the Labor Management Reporting and Disclosure Act, 29 U.S.C. Sec. 411(a)(2), relating to strengthening internal union democracy--something that the Court recognized as essentially a Bill of Rights kind of claim. The Court applied a three-year state limitations period reasoning that the issue was "not directly related in any way to collective bargaining or dispute settlement under a collective-bargaining agreement." Id. at 330, 109 S.Ct. at 629.

Pursuing the DelCostello dual inquiry, we ask first whether the "state" statute, the District of Columbia Uniform Arbitration Act, D.C. CODE ANN. Secs. 16-4319, 4301, 4302(a) (1989), ² provides a close analogy to the action in the instant case. Inasmuch as Sec. 16-4301 specifically makes the Act applicable "to arbitration agreements between employers and employees or between their respective representatives," we assume that the District of Columbia statute meets this first requirement. Having arguably cleared this first hurdle, appellant bears the heavy burden of convincing us not to follow the seven other circuits that have already held that the six-month federal law period created by Sec. 10(b) is significantly more appropriate than analogous state law periods. See DelCostello, 462 U.S. at 172, 103 S.Ct. at 2294-95.

In answering this question, we shall attempt to identify the pros and cons contained in the arguments of the parties and the decided cases. We first address the federal policy at stake, perhaps the most critical and relevant object of inquiry. Appellant argues the following points: a suit to compel arbitration does not threaten the dispute resolution process but rather seeks to advance it; the local limitations period allows greater opportunity to bring a suit to compel and, thereby, vindicates the policy supporting arbitration; a shorter statute is likely to encourage reluctant parties to take evasive action and stonewall in the hopes of delaying suits to compel beyond the limitations period, thus forcing parties desirous of arbitration to bring premature suits.

We are, however, persuaded to the contrary by the following considerations. In the first place, a lengthy limitations period merely extends the time during which the dispute resolution system effectuated by arbitration remains in limbo, with increased possibility of memories fading, witnesses becoming unavailable, and documentary evidence disappearing. Moreover, such a period of purgatory may well interfere with intervening collective bargaining negotiations. In any event, the relationship between an employer and a union would not seem to be strengthened by a prolonged period of uncertainty. See Teamsters Union Local 315 v. Great Western Chem. Co., 781 F.2d 764, 766 (9th Cir.1986) ("A long period of controversy ... can poison the relationship between the contracting parties....").

Perhaps more important, there is in reality no realistic likelihood of a party stonewalling and engaging in evasive action to such an extent as to trigger a premature suit to compel arbitration. As the court observed in Communications Workers of America v. Western Electric Co., 860 F.2d 1137, 1144 (1st Cir.1988), "[a]fter management has unequivocally refused to arbitrate, the likelihood of further concessions seems highly problematic."

On the latter point, we have but to look to the facts in this case. In the first place, there was a seven-month period following the filing of a grievance before the matter was even referred to arbitration. This allowed considerable time for appellant to explore the attitude of AT & T and possibly to resolve the issue. Second, there was a...