Harry Hoffman Printing, Inc. v. Graphic Communications, Intern. Union, Local 261, In Matter of

• Decision Date: 31 August 1990
• Docket Number: No. 1399,D,1399
• Citation: 912 F.2d 608
• Parties: 135 L.R.R.M. (BNA) 2774, 116 Lab.Cas. P 10,291 In the Matter of an Arbitration between HARRY HOFFMAN PRINTING, INC., Holling Press (Ward Burns, Inc.), Pollack Printing Corporation, Manhardt-Alexander, Inc., Thorner-Sidney Press, Inc., Kenworthy Graphic Services, Inc., and Savage Litho Co., Inc., constituting the sole and exclusive members of the Litho Negotiating Group, Petitioners-Appellants, v. GRAPHIC COMMUNICATIONS, INTERNATIONAL UNION, LOCAL 261 (formerly Graphic Arts International Union, Local 261), Respondent-Appellee. ocket 89-9102.
• Court: U.S. Court of Appeals — Second Circuit

Page 608

912 F.2d 608

135 L.R.R.M. (BNA) 2774, 116 Lab.Cas. P 10,291

In the Matter of an Arbitration between HARRY HOFFMAN

PRINTING, INC., Holling Press (Ward Burns, Inc.), Pollack

Printing Corporation, Manhardt-Alexander, Inc.,

Thorner-Sidney Press, Inc., Kenworthy Graphic Services, Inc., and Savage Litho Co., Inc., constituting the sole and exclusive members of the Litho Negotiating Group, Petitioners-Appellants, v. GRAPHIC COMMUNICATIONS, INTERNATIONAL UNION, LOCAL 261

(formerly Graphic Arts International Union, Local

261), Respondent-Appellee.

No. 1399, Docket 89-9102.

United States Court of Appeals,

Second Circuit.

Argued May 23, 1990.

Decided Aug. 31, 1990.

Walter D. Kogut, Syracuse, N.Y. (Nicholas J. Fiorenza, Scolaro, Shulman, Cohen, Lawler & Burstein, Syracuse, N.Y., of counsel), for petitioners-appellants.

E. Joseph Giroux, Jr., Buffalo, N.Y. (Law Offices of E. Joseph Giroux, Jr., Buffalo, N.Y., of counsel), for respondent-appellee.

Before VAN GRAAFEILAND, MESKILL and WALKER, Circuit Judges.

MESKILL, Circuit Judge:

This is an appeal from a judgment entered in the United States District Court for the Western District of New York, Elfvin, J., dismissing appellants' petition to vacate an arbitration award as barred by the statute of limitations. The petition sought vacatur of the award pursuant to section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. Sec. 185, and section 10 of the United States Arbitration Act ("Arbitration Act" or "Act"), 9 U.S.C. Sec. 10. The district court held that New York's ninety day time limit on applications to vacate arbitration awards, N.Y.Civ.Prac.L. & R. (CPLR) 7511(a) (McKinney 1980), applies to appellants' petition, rather than the three month statute of limitations contained in section 12 of the Arbitration Act, 9 U.S.C. Sec. 12. The court further held that the petition was untimely under the New York statute. We conclude that the New York statute of limitations does apply, but that the petition was timely brought. Accordingly, we vacate the district court's judgment and remand for consideration of the merits of appellants' petition.

BACKGROUND

Appellants are seven employers engaged in the printing business that have formed a multiemployer bargaining association called the Litho Negotiating Group (Litho). These employers have maintained a collective bargaining relationship with respondent, Graphic Communications International Union, Local 261 (the "union" or "Local 261"), for many years. In July 1983, Local 261's sister union went on strike against the Litho employers, and employees represented Local 261 filed a grievance, asserting that the collective bargaining agreement, which expired by its terms on October 1, 1983, precluded the employers from hiring permanent replacements. The employers contended that the collective bargaining agreement could not bar the hiring of replacements because it had expired. The union sought arbitration of its grievance. In response, the Litho employers petitioned the United States District Court for the Western District of New York, Elfvin, J., to stay the arbitration. The court denied the employers' petition and granted the union's cross-petition to compel arbitration. Harry Hoffman Printing, Inc. v. Graphic Communications Int'l Union, Local 261, No. 84-59E (W.D.N.Y. Jan. 31, 1985). We affirmed the district court's decision by summary order. 767 F.2d 907 (2d Cir.1985).

by Local 261 refused to cross the picket lines. When the strike ended in mid-October 1983, the Local 261 employees wished to return to their jobs. The Litho employers informed the union, however, that they had permanently replaced many Local 261 employees.

The issues submitted to the arbitrators were (1) whether the dispute was arbitrable, and if so, (2) whether the employers breached the collective bargaining agreement by hiring permanent replacements. If the arbitrators found such a breach, the issue of damages was to be submitted to a second arbitration panel. The arbitrators ruled that the dispute was arbitrable, and that the Litho employers had breached the collective bargaining agreement as to those replacements hired before October 1, 1983. This decision was delivered to the employers on July 27, 1988.

On August 15, 1988, the employers applied to the arbitrators for a modification of the award, claiming that the arbitrators had made typographical errors and miscalculations of figures, and had decided an issue not submitted to them. The arbitration panel denied the application to modify on September 6, 1988, although it gave the parties permission to correct the typographical errors.

On October 26, 1988, ninety-one days after delivery of the arbitrators' award to the employers, the employers filed the present petition to vacate the arbitration award pursuant to LMRA section 301, 29 U.S.C. Sec. 185, and section 10 of the Arbitration Act, 9 U.S.C. Sec. 10. The union moved to dismiss the petition as untimely. The district court held that state statutes of limitations apply to actions brought under LMRA section 301, and therefore New York's ninety day time limit on applications to vacate arbitration awards, CPLR 7511(a), applies. The court further held that the limitations period began to run on the date of delivery of the award, July 27, rather than on September 6, the date on which the application to modify the award was denied. Accordingly, the court dismissed the employers' petition as untimely without reaching the merits.

DISCUSSION

The Litho employers argue that the district court erred in dismissing their petition because (1) the three month statute of limitations contained in the Arbitration Act applies, rather than the ninety day statute of the CPLR, and (2) even if the New York statute applies, the action was timely because the limitations period accrued on September 6, 1988, the date on which the arbitrators rendered a decision on the employers' application to modify the award.

A. Arbitration Act or CPLR?

Litho's petition apparently would be timely under the Arbitration Act's three month statute, if applicable, because the petition was filed on October 26, exactly three months after the arbitrators' July 27 decision. Litho's argument as to why the Arbitration Act should apply is essentially a three-part syllogism: (1) both section 301 of the LMRA and section 10 of the Arbitration Act provide the district court with subject matter jurisdiction to hear a petition to vacate an arbitration award; (2) section 12 of the Arbitration Act, 9 U.S.C. Sec. 12, provides for a three month time limit on petitions to vacate, while the LMRA contains no statute of limitations; therefore (3) the The primary defect is that section 10 of the Arbitration Act does not confer subject matter jurisdiction on a district court. Section 10 states in part that "the United States court in and for the district wherein the award was made may make an order vacating [an arbitration] award." 9 U.S.C. Sec. 10. This language is less than precise, and might be read as conferring subject matter jurisdiction. However, we have consistently held that Congress did not intend the Arbitration Act as a grant of jurisdiction. There must be an independent basis of jurisdiction before a district court may entertain petitions under the Act. See, e.g., Ballantine Books, Inc. v. Capital Distrib. Co., 302 F.2d 17, 19 (2d Cir.1962) (petition to confirm award under Arbitration Act section 9); Metro Indus. Painting Corp. v. Terminal Construction Co., 287 F.2d 382, 384 (2d Cir.) (petition to compel arbitration under section 4), cert. denied, 368 U.S. 817, 82 S.Ct. 31, 7 L.Ed.2d 24 (1961). Recent Supreme Court cases have confirmed this view. In Moses H. Cone Memorial Hosp. v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), Justice Brennan stated: "The Arbitration Act is something of an anomaly in the field of federal-court jurisdiction. It creates a body of federal substantive law establishing and regulating the duty to honor an agreement to arbitrate, yet it does not create any independent federal-question jurisdiction." Id. at 25 n. 32, 103 S.Ct. at 942 n. 32; see also Southland Corp. v. Keating, 465 U.S. 1, 15 n. 9, 104 S.Ct. 852, 861 n. 9, 79 L.Ed.2d 1 (1984); Drexel Burnham Lambert, Inc. v. Valenzuela Bock, 696 F.Supp. 957, 959-61 (S.D.N.Y.1988); 13B C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 3569, at 170-73 (2d ed.1984). ¹

Arbitration Act's statute of limitations should apply. This argument is seriously flawed.

Litho contends that the Arbitration Act gave the district court power to hear the petition by virtue of the "continuing jurisdiction" theory recognized in Smiga v. Dean Witter Reynolds, Inc., 766 F.2d 698 (2d Cir.1985), cert. denied, 475 U.S. 1067, 106 S.Ct. 1381, 89 L.Ed.2d 607 (1986). In Smiga, which involved a petition to confirm an arbitration award under section 9 of the Act, we stated that "a court [that] orders arbitration retains jurisdiction to determine any subsequent application involving the same agreement to arbitrate, including a motion to confirm the arbitration award." Id. at 705. Because the district court compelled arbitration in this case, Litho argues, it retained jurisdiction under the Arbitration Act to vacate the award. This argument is based on a misreading of Smiga.

In Smiga we recognized the requirement that there be an independent basis of jurisdiction before a district court may entertain petitions under the Arbitration Act, and noted that the parties there were diverse. Id. at 703-04. The question in Smiga was whether the parties had agreed to confirmation of the arbitration award as required by section 9, which allows a district court to confirm an award only "[i]f the parties in their agreement have agreed that a judgment of the court shall be entered upon the award." 9 U.S.C. Sec. 9. The parties in Smiga had made no such agreement. It was in this context that we stated that the...