Lawson v. Truck Drivers, Chauffeurs & Helpers, Local Union 100
| Decision Date | 24 February 1983 |
| Docket Number | Nos. 81-3722,81-3540,s. 81-3722 |
| Citation | 698 F.2d 250 |
| Parties | 112 L.R.R.M. (BNA) 2553, 96 Lab.Cas. P 13,997 Leonard LAWSON (81-3722), Plaintiff-Appellant, v. TRUCK DRIVERS, CHAUFFEURS & HELPERS, LOCAL UNION 100, Defendant-Appellee. George S. LEACH (81-3540), Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE and National Association of Letter Carriers and Local 43, National Association of Letter Carriers, et al., Defendants- Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Andrew Dennison, Lawrence R. Fisse (argued), Batavia, Ohio, for plaintiff-appellant.
Donetta Wiethe, Elizabeth Whitaker, Asst. U.S. Atty., Cincinnati, Ohio, for U.S. Postal Service.
Donald J. Mooney, Cincinnati, Ohio, for Local 43, Nat. Ass'n of Letter Carriers & Ed Fisbeck.
Thomas F. Phalen, Jr., Gary Eby, Cincinnati, Ohio, for Nat. Ass'n of Letter Carriers & Vincent Sombrotto.
Paul Tobias (argued), Cincinnati, Ohio, for George S. Leach.
Jonas B. Katz, Dennis Buckley (argued), Cincinnati, Ohio, for Truck Drivers, Chauffeurs & Helpers, Local Union 100.
Before KEITH and MERRITT, Circuit Judges and PECK, Senior Circuit Judge.
In these two Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) type actions for unfair representation against unions under Sec. 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185 (1976), the essential questions on appeal are: (1) whether United Parcel Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981) 1 and Badon v. General Motors Corp., 679 F.2d 93 (6th Cir.1982), require that a 90-day, Ohio limitations statute for actions to vacate arbitration awards be applied to malpractice-type actions against unions for unfair representation, as well as for actions for wrongful discharge against employers; and (2) whether Mitchell should be applied retroactively to cases pending when Mitchell was decided. We hold that Mitchell applies retroactively to pending cases and that under Mitchell and Badon the Ohio statute of limitations governing suits to vacate arbitration awards applies to unfair representation actions against unions as well as to wrongful discharge actions against employers.
The record reflects that on August 22, 1978, appellant Leach entered the Cincinnati, Ohio Post Office while intoxicated and shouted obscenities about his supervisor and two postal security guards. On August 29, 1978, Leach was issued a Notice of Proposed Dismissal from the Postal Service for conduct unbecoming a postal employee, effective October 6, 1978. The August, 1978, incident was not Leach's first employment problem. His disciplinary record included several warnings and two lengthy suspensions for bad conduct.
Leach's last infraction before his discharge, based on conduct similar to that for which he was ultimately discharged, was the subject of a grievance settlement which reduced his suspension from twenty-eight days to fourteen days. An important element of that settlement was that Leach join and actively participate in the Postal Service's alcohol recovery program for alcoholics. Leach was notified in the settlement that he would be discharged should subsequent disciplinary action be necessary because of continued unsatisfactory job performance. When he thereafter caused a disturbance at work, while drunk, on August 27, 1978, he was discharged.
On September 21, 1978, the defendant postal unions filed a grievance on Leach's behalf asking that Leach be reinstated. The grievance was denied by the defendant Postal Service and was eventually certified for arbitration by the unions. On February 20, 1979, the grievance was heard by Arbitrator Alan Walt. On February 27, 1979, Arbitrator Walt issued his award denying Leach's grievance. In denying the grievance and thus upholding Leach's discharge, the arbitrator found significant Leach's "progressively worsening disciplinary history caused by alcoholism."
Leach's complaint against the employer and the union under Sec. 301 was filed on October 6, 1980, more than 17 months after the Arbitrator's decision. District Judge Carl Rubin entered a final order dismissing the complaint against the postal service for wrongful discharge and against the unions for unfair representation under the 90-day Ohio limitations statute for actions to vacate arbitration awards, Ohio Rev.Code Sec. 2711.13 (1976).
In October, 1976, plaintiff Lawson, employed in Ohio by the Mason & Dixon Lines, Inc. as a truck driver, was discharged. The defendant Local 100 was the employee collective bargaining representative for the truck line. The company based the discharge on alleged dishonesty in connection with the cashing of two pay checks for the same work week. Plaintiff had gotten a duplicate check by stating that the original pay check had been lost or stolen; subsequently, both checks were cashed. Plaintiff filed a grievance under the collective bargaining agreement and the grievance was eventually assigned for hearing before the Joint Conference or Committee on October 20, 1976. That Committee, composed of equal numbers of Union and employer representatives, upheld the discharge. A handwriting expert testified for the employer that the endorsements on both the checks were in the plaintiff's handwriting. Neither the Union nor the employee produced an expert witness.
After the discharge the plaintiff engaged private counsel who retained the services of a reputable handwriting expert. The expert concluded that both of the checks had not been endorsed by the plaintiff but on the contrary one bore a forged endorsement. When the Union was informed of this new evidence, an effort was made to reopen the arbitration. The arbitration was reopened and a hearing set for April 20, 1977. The plaintiff, dissatisfied with his prior union representation during the grievance and arbitration process, insisted that he be represented at that stage only by his private counsel. As a result of a meeting with his counsel and the employer, the plaintiff was reinstated with full back pay based on the expert testimony obtained by private counsel.
The plaintiff sued the Union for unfair representation on June 16, 1977, more than 6 months following completion of the arbitration process. He alleged that the union had not properly represented him at the October 20, 1976, arbitration hearing and had failed to get plaintiff promptly reinstated when advised of the opinion of the new handwriting expert. District Judge Hogan dismissed the case as untimely under Ohio's 90-day limitations statute for vacation of arbitration awards, Sec. 2711.13, Ohio Rev.Code (1976).
In both cases, the employee appeals the dismissal of the case against the union on limitation grounds, and in the postal case Leach appeals the dismissal of the employer as well. In both cases the alleged wrongful discharge was addressed in the collectively bargained grievance and arbitration process and a final decision was rendered. If United Parcel Service v. Mitchell, supra, is applied retroactively--a question we will address momentarily--it is clear that the action against the employer in the postal case was barred by Ohio's 90-day arbitration statute. That was the holding of Mitchell.
The narrow holding in Mitchell covers the wrongful discharge case against the employer but does not necessarily cover the unfair representation case against the union, as Justice Stevens points out in his concurring opinion in Mitchell, 451 U.S. at 71, 101 S.Ct. at 1568. Since Mitchell, however, this Court has clearly held in Badon v. General Motors Corp., supra, that "the Mitchell rule also applies to Badon's unfair representation claim" because the same statute of limitations should be applied to both branches of the labor dispute, 679 F.2d at 98. Judge Martin's opinion for the Court in Badon relied on Gallagher v. Chrysler Corp., 613 F.2d 167, 168 (6th Cir.1980), which states the policy of this Circuit that the same statute of limitations should apply to both wrongful discharge and unfair representation cases. Although, as Justice Stevens points out in his concurring opinion in Mitchell, the two causes of action conceptually are based on somewhat different theories, Badon and Gallagher are the law of this Circuit until overruled or reversed, and they require application of the same limitations statute to both types of actions--the wrongful discharge claim against the employer and the unfair representation claim against the union. 2
The rule of Mitchell should be applied retroactively to pending actions against employers and unions. The normal rule is that in civil cases a recent authoritative opinion interpreting the law should be applied to pending cases unless it represents a "clean break" with the past and unless in addition it would be fundamentally unfair or otherwise burdensome to so apply it, see Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971); United States v. Johnson, --- U.S. ----, 102 S.Ct. 2579, 2587 n. 12, 2595, 73 L.Ed.2d 202 (1982).
As Mitchell makes clear, the law on the limitations question in Sec. 301 wrongful discharge and unfair representation cases has been in a state of confusion for some time. This Circuit and other circuits, prior to Mitchell, had adopted various state statutes of limitations, depending on the peculiarities of the limitations law of the state in question and the arguments of counsel in the particular case. Although Smart v. Ellis Trucking Co., Inc., 580 F.2d 215, 219 (6th Cir.1978) (...
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