D'Andrea v. American Postal Workers Union, Cincinnati Local
| Decision Date | 24 February 1983 |
| Docket Number | AFL-CIO,No. 81-3548,81-3548 |
| Citation | 112 L.R.R.M. 2866,700 F.2d 335 |
| Parties | 112 L.R.R.M. (BNA) 2866, 96 Lab.Cas. P 14,162 Angelo Anthony D'ANDREA, Plaintiff-Appellant, v. AMERICAN POSTAL WORKERS UNION, CINCINNATI LOCAL; American Postal Workers Union; United States Postal Service; United States of America, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Rodger N. Walk, James Rimedio, Cincinnati, Ohio, for plaintiff-appellant.
Gary Moore Eby, Robert J. Welch, Elizabeth Gere Whitaker, Asst. U.S. Attys., Cincinnati, Ohio, for defendants-appellees.
Before LIVELY and KRUPANSKY, Circuit Judges, and BROWN, Senior Circuit Judge.
This is a case involving an employee's action against his former employer and his union under Sec. 301(a) of the Labor Management Relations Act, 29 U.S.C. Sec. 185(a). 1 The issue before us is whether it was proper for the district court to dismiss appellant D'Andrea's Sec. 301 action against the employer and union on the ground that the claim was time barred in light of the Supreme Court's holding in United Parcel Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981). We affirm the dismissals.
The facts pertinent to this appeal are not disputed. Angelo Anthony D'Andrea (D'Andrea) was employed by the United States Postal Service and represented by the American Postal Workers Union, AFL-CIO, Cincinnati Local. On July 2, 1972, during the course of his employment, he was observed stealing a man's diamond ring, a woman's opal ring and three coins from the mail. He was arrested, and on July 17, 1972, given a Notice of Discharge by the Postal Service effective August 18, 1972.
On October 17, 1972, D'Andrea was indicted by a federal grand jury for violating 18 U.S.C. Sec. 1709, theft from the mails. He entered a plea of not guilty by reason of insanity, contending that he was physically attacked by his former wife which caused him to completely lose his ability to reason. The trial court dismissed the indictment on April 9, 1973, after finding that D'Andrea was suffering from a mental illness.
In November, 1973, D'Andrea sought reinstatement based upon the dismissal of the indictment and his recovery from the loss of reason. The Postal Service responded in February, 1974, that reinstatement could not be discussed because D'Andrea had not complied with the grievance provisions of the collective bargaining agreement negotiated by the union. The Postal Service rejected D'Andrea's claim that his prior mental state exempted him from the requirement that a timely grievance be filed. The collective bargaining agreement in effect at D'Andrea's dismissal allowed an employee five days to file an objection to the termination after the Notice of Termination was received. The Postal Service referred D'Andrea to his union.
On January 15, 1975, the union filed a grievance on D'Andrea's behalf. The Postal Service denied the grievance on the ground that it was not filed timely under the collective bargaining agreement. The union claimed that D'Andrea's past mental condition precluded him from complying with the bargaining agreement filing deadline. Since the Postal Service and union could not agree, the matter was referred to binding arbitration.
On July 24, 1975, the arbitrator held a full hearing, and on August 7, 1975, he decided in favor of the Postal Service, holding that D'Andrea had not filed the grievance within the time permitted. Moreover, the arbitrator found that D'Andrea had orally protested about the discharge prior to its effective date, and such protest was a "first step grievance" from which no written appeal was taken. Therefore, the arbitrator concluded that this was not a case where a right was "not exercised because of incompetency but a case where a right had been exercised prior to determination of competency" and then not pursued to an appeal.
More than three years later, on August 16, 1978, D'Andrea filed this Sec. 301 suit in the United States District Court alleging that the Postal Service discharged him in violation of the collective bargaining agreement and that the union breached its duty of fair representation. In May, 1979, the Postal Service and union filed motions for summary judgment alleging that the action was time barred under Ohio's four year statute of limitations for tort. OHIO REVISED CODE Sec. 2305.09. These motions were denied. Thereafter, in May, 1981, the Postal Service and union filed motions to dismiss the complaint based upon United Parcel Service v. Mitchell, supra. These motions were granted, and this appeal ensued.
In UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966), the Supreme Court stated that "the timeliness of a Sec. 301 suit ... is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations." Id. at 704-705, 86 S.Ct. at 1112-1113. There remained some question, however, of what was the "appropriate" state limitations statute. Then, in United Parcel Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), the Supreme Court held that where a discharged employee, in the face of an adverse arbitration award, brings a Sec. 301 suit against his employer for breaching the collective bargaining agreement and against his union for breaching its duty of fair representation, the action should be characterized as one to vacate an arbitration award. Id. at 62, 101 S.Ct. at 1563.
The district court dismissed D'Andrea's action after UPS v. Mitchell was decided by applying Sec. 2711.13, OHIO REVISED CODE, which provides a three month period within which a motion to vacate an arbitration award must be filed. 2 As noted above, D'Andrea waited three years after the arbitration decision to commence this Sec. 301 action.
D'Andrea argues that in a recently decided case quite analogous to his, Newton v. Local 801 Frigidaire Local of the International Union of Electrical Workers, 684 F.2d 401 (6th Cir.1982), a panel of this court decided to apply Ohio's six year statute of limitations for actions based on a liability created by statute, OHIO REVISED CODE Sec. 2305.07. 3 In Newton, the appellant was dismissed after an incident with a foreman over the release of a vacation pay check to appellant. The union, representing appellant at his grievance proceeding, claimed the foreman was at fault for the incident, while the company claimed appellant was the principal instigator. The company denied both the grievance and subsequent appeal. A final appeal was taken to the "Umpire Level" where the company and union apparently negotiated an agreement to reinstate appellant. A "contract" was signed to effectuate this agreement when both the company and union wrote "Reinstate--back pay" on a grievance procedure form. The Union then decided, however, not to perfect the agreement by completing the appeal at the "Umpire Level." The appellant sued to enforce the "contract" which he claimed the union and company had entered into.
Newton argued that Ohio's fifteen year statute of limitations for actions based on written contracts, OHIO REVISED CODE Sec. 2305.06, should apply. The district court decided,...
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