International U. of Op. Eng. v. Fischbach and Moore, Inc., 19476.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: BARNES, JERTBERG, and ELY, Circuit
• Citation: 350 F.2d 936
• Parties: INTERNATIONAL UNION OF OPERATING ENGINEERS, ETC., Appellant and Cross-Appellee, v. FISCHBACH AND MOORE, INC., a corporation, et al., Appellees and Cross-Appellants.
• Docket Number: No. 19476.,19476.
• Decision Date: 17 September 1965

350 F.2d 936 (1965)

INTERNATIONAL UNION OF OPERATING ENGINEERS, ETC., Appellant and Cross-Appellee,
v.
FISCHBACH AND MOORE, INC., a corporation, et al., Appellees and Cross-Appellants.

No. 19476.

United States Court of Appeals Ninth Circuit.

September 17, 1965.

350 F.2d 937

Charles K. Hackler, Julius Reich, Brundage, Hackler & Roseman, Los Angeles, Cal., for appellant (cross-appellees).

Carl M. Gould, Stanley E. Tobin, Cecil E. Ricks, Jr., Hill, Farrer & Burrill, Los Angeles, Cal., for appellee (cross-appellant).

Before BARNES, JERTBERG, and ELY, Circuit Judges.

ELY, Circuit Judge:

This is an appeal by the appellant labor union from a judgment in favor of appellees, plaintiffs below, for damages arising out of alleged unfair labor practices. The action was brought under § 303 of the Labor Management Relations Act, 29 U.S.C. § 187, which provides in subsection (b) that "whoever shall be injured in his business or property by reason of any unfair labor practice committed by a labor organization may sue therefor in any district court of the United States * * *, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the cost of the suit."

The principal issue here involved is whether the action, filed more than three but less than four years after its accrual, is barred by lapse of time.

The problem arises because § 303 does not provide a time within which suit must be instituted. The court below, in reaching its decision, listed five possible solutions:

1. utilization of state statutes of limitations;

2. utilization of an arbitrary, judicially adopted period to be applied in all similar cases;

3. utilization of a federal statute of limitations applicable to suits of analogous nature;

4. utilization of the equitable doctrine of laches; and

5. utilization of no period of limitations at all. Fischbach & Moore, Inc. v. International Union of Operating Eng'rs, 198 F.Supp. 911, 915 (S.D.Cal.1961). It concluded that, in cases such as this, the fifth solution, tempered by the fourth, is appropriate, and finding on the facts of the case that laches was not applicable, held that the action was not barred.

At the outset we must express our view that the trial court was clearly misguided in holding that actions under § 303 could be barred only by application of the equitable doctrine of laches. The court justified its decision by expressed concern for the interest of uniformity in the federally occupied field of labor relations. It rejected the California three-year statute of limitations, applicable to actions based on liability created by statute, Cal.Civ.Proc. Code 338, subd. 1, because to apply it, said the court, "`"would be inconsistent with the terms or defeat the purposes of the legislation of Congress," or defeat "the assertion of Federal rights, * * *."'" 198 F.Supp. at 914 (Citations omitted.). It is true that we cannot achieve perfect uniformity when fifty possible time periods of limitation may apply, but resort to the doctrine of laches, which adds complex factual considerations to each controversy, can create in every case a previously unknown period. This would result in time limitations inconsistent even within the same state where numerous controversies may have occurred. In short, adherence to the rule adopted by the court below could result only in uniform uncertainty.

There are strong reasons for the application of a six-month period, borrowed from § 10(b) of the LMRA, 29 U.S.C. § 160(b), which provides, "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board * * *." We think it is neither logical, nor just, nor in keeping with the policy which Congress has thus far articulated in the field of labor relations that

350 F.2d 938

a six-month period shall limit the filing of a complaint with the Board and that some different period, be it based on laches or a different statute of limitations, shall operate to limit the time for commencing a suit for damages under § 303 based on the same alleged unfair labor practice. See Tully v. Fred Olson Motor Serv. Co., 56 L.R.R.M. 2960, 2964 (Wis.Cir.Ct.1964), rev'd, 134 N.W.2d 393 (Wis.1965). Given reasons for the enactment of § 10(b) were "to bar litigation over past events `after records have been destroyed, witnesses have gone elsewhere, and recollections of the events in question have become dim and confused,' H.R.Rep. No. 245, 80th Cong., 1st Sess., p. 40, and of course to stablize existing bargaining relationships." Local Lodge No. 1424, International Ass'n of Machinists AFL-CIO v. NLRB, 362 U.S. 411, 419, 80 S. Ct. 822, 828, 4 L.Ed.2d 832 (1960) (Footnote omitted.). Certainly the...