Hand v. International Chemical Workers Union

• Decision Date: 02 August 1982
• Docket Number: No. 328,No. 81-5828,328,81-5828
• Citation: 681 F.2d 1308
• Parties: 111 L.R.R.M. (BNA) 2038, 95 Lab.Cas. P 13,725 Clarence H. HAND, Plaintiff-Appellant, v. INTERNATIONAL CHEMICAL WORKERS UNION, International Chemical Workers Union Local, and Arizona Chemical Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1308

681 F.2d 1308

111 L.R.R.M. (BNA) 2038, 95 Lab.Cas. P 13,725

Clarence H. HAND, Plaintiff-Appellant, v. INTERNATIONAL CHEMICAL WORKERS UNION, International Chemical Workers Union Local No. 328, and Arizona Chemical Company, Defendants-Appellees.

No. 81-5828.

United States Court of Appeals Eleventh Circuit.

Aug. 2, 1982.

Brian A. Dusseault, Panama City, Fla., for plaintiff-appellant.

Robert M. Young, Asst. Counsel, Intern. Chemical Workers Union, Akron, Ohio, for Intern. Chemical Workers Union.

Wade B. Perry, Jr., Mobile, Ala., for Arizona Chemical Co.

Pilacek, Egan, Cohen & Williams, Thomas J. Pilacek, Orlando, Fla., for Intern. Chemical Workers Union Local No. 328.

Appeals from the United States District Court for the Northern District of Florida.

Before TUTTLE, RONEY and CLARK, Circuit Judges.

TUTTLE, Circuit Judge:

The appellant seeks to have this Court fill in what he claims to be a gap left open in the recent Supreme Court opinion in United Parcel Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981). In seeking this result, appellant is one of many litigants who now have sought to have a Court decide that the opinion in United Parcel Service does not prescribe that an action against an employer and his union as bargaining agent is barred as to the union by a state limitations statute dealing with the setting aside of an arbitration award. The Court held in United Parcel Service, a case in which only the employer appealed from a lower court's decision to the contrary, that an employee's suit based upon his allegations of illegal firing, taken to an arbitration board and resolved by a final decision of that board, was tantamount to a suit to set aside an arbitration proceeding as defined in many state statutes. Such statutes generally read in terms of not more than 90 days' limitations.

The facts, necessary to an understanding of our discussion of this case, are relatively simple. On March 6, 1979, Clarence Hand was an employee of the defendant, Arizona Chemical Company, in its chemical plant. By mistake or error he released for storage, some of the company's product, after an improper treatment had been accorded it. His work shift ended and he left the plant, according to his contention, without having become aware of the mistake. The error was caught the following day and partially rectified, but the company suffered a loss by reason of Hand's improper handling of the product. Being faced on March 7 by a company representative, and together with his local union agent, Hand was notified that he was discharged effective the previous day. Thereupon, the union agent requested that Hand be permitted to resign effective on that same day. This request was acquiesced in by the company, and on the following day, Hand wrote his letter of resignation, which was accepted by the company. Thereafter, Hand requested the company to withdraw his resignation and to reinstate him. This was refused. Thereupon, the local union filed a grievance which, a considerable time later, ripened into a hearing by an arbitrator, as provided in the company's bargaining agreement with the union. The arbitrator found that Hand's resignation was effective and voluntary and, therefore, did not reach the basic question as to the propriety of the sanction of discharge under the circumstances.

Shortly after three months following the receipt of the arbitrator's report, Hand filed this action in the Florida state court. It was removed to the United States District Court. It alleged a violation by the company of its bargaining agreement in effecting his discharge and a violation by the union fairly to represent him at and before the arbitration proceedings. By the time the case was ripe for consideration of the motions by the defendants, the employer and the unions, the Supreme Court had announced its decision in United Parcel Service, Inc. v. Mitchell, supra. Based on that decision, which the trial court here called a "spotted dog" case, the district court dismissed the complaints against both employer and the unions.

By his appeal here, Hand joins with a substantial number of present or former union members who have appealed from, or who are relying upon, district court decisions placing their different interpretations on the United Parcel Service case. Only one of these cases, so far as has been discovered by us, deals with the precise issue which we face and has been decided by the Court of Appeals of any of our Circuits. This is the case of Flowers v. Steel Workers Local 2602, 671 F.2d 87 (2d Cir. 1982), 109 LRRM 2805.

We now look at the Court's opinion in United Parcel Service v. Mitchell, ¹ supra. As stated, the facts present precisely the same issue that is before this Court. Mitchell had been discharged from his employment; his union filed a grievance which was pursued through an arbitration, the arbitration resulted in a decision favorable to the employer and Mitchell's discharge was confirmed. Seventeen months thereafter Mitchell filed a suit claiming that he had been fired in violation of his employment contract and that the union had failed to provide him with fair representation during and at the arbitration hearing. The district court granted summary judgment in favor of the employer and the union, ruling that respondent's action was properly characterized as one to vacate the arbitration award entered against him. The appropriate statute of limitations for vacating an arbitration award in New York state is three months. ² Upon appeal, the Court of Appeals for the Second Circuit reversed, holding that the district court should have applied New York's six year limitations period for actions alleging breach of contract.

Only the United Parcel Service, Inc., the employer, appealed from that decision. So, in point of literal fact, the only issue upon which the Supreme Court could pass was the correctness of the Circuit Court's judgment dealing with the statute of limitations barring the employee's suit against his employer. The Court made this plain in the first paragraph of the opinion:

We are called upon in this case to determine which state statute of limitations period should be borrowed and applied to an employee's action against his employer under section 301(a) of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. 185(a) and Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). (Emphasis added.)

451 U.S. at 58, 101 S.Ct. at 1561. Also, the Court at footnote 4, in discussing Mitchell's suggestion that the kind of action dealt with might also be characterized as actions upon a statute, personal injury actions, or malpractice actions, all governed by a three-year limitations period in New York, stated:

All of these characterizations suffer from the same flaw as the effort to characterize the action as one for breach of contract: they overlook the fact that an arbitration award stands between the employee and any relief which may be awarded against the company. (Emphasis added.)

451 U.S. at 62, 101 S.Ct. at 1564.

Noting that the majority opinion did not expressly state that the Court's discussion of the limitations period as being controlled by the 90-day statute required that the same statute would be applicable in a suit against the union for lack of fair representation, Justice Stevens, in a separate opinion expressed the view that a different statutory period should be applied in a contest between the employee and his union. He stated:

The employee's claim against his union for breach of the duty of fair representation, however, is of a far different character. Although this claim is closely related to the claim against the employer, the two claims are nonetheless conceptually distinct ... therefore, with respect to the employee's action against the union, the finality and certainty of arbitration are not threatened by the prospect that the employee might prevail on his judicial claim. Because no arbitrator has decided the primary issue presented by this claim, no arbitration award may be undone, even if the employee ultimately prevails.

451 U.S. at 73, 101 S.Ct. at 1569 (footnotes omitted.)

Shortly after the Court of Appeals for the Second Circuit had decided United Parcel Service, Inc., et al. v. Mitchell, 624 F.2d 394, it reversed a southern district court judgment which had dismissed a similar suit brought on behalf of an employee against his employer and his union. Flowers v. United Steel Workers Local 2602, ³ 622 F.2d 573 (2d Cir. 1980). Steel Workers Local filed their petition for certiorari in the Supreme Court from the adverse decision of the Second Circuit and on May 4, the Court entered the following order:

80-26-United Steel Workers v. Flowers

The petition for writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Second Circuit for further consideration in light of United Parcel Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981).

Upon remand, the Court of Appeals in a two-judge opinion, the third member of the original panel having left the Court in the meantime, concluded as it was required to, that United Parcel Service required that it reverse its position as to the statute of limitations affecting the claim against the employer but it then concluded:

Conceptually, then, we agree (with Justice Stevens' opinion) that the claim against the union is not governed by the statute of limitations for actions to vacate arbitrations.

671 F.2d at 89.

We agree that this conclusion does no violence to the decision of the Court in United Parcel Service, since whatever implications may be thought to arise from some of the language in that opinion which was broad enough to include all parties to this type of litigation, the Court did not have that issue squarely before it. Moreover, we are persuaded because of the stance of ...