Mitchell v. United Parcel Service, Inc., No. 748

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: Before KAUFMAN, Chief Judge, TIMBERS, Circuit Judge, and WERKER; TIMBERS
• Citation: 624 F.2d 394
• Parties: 105 L.R.R.M. (BNA) 2301, 88 Lab.Cas. P 11,920 William MITCHELL, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC., and Department Store and Wholesale Drivers, Warehousemen and Helpers, Local Union # 177, Defendants-Appellees. ocket 79-7803.
• Decision Date: 03 March 1980
• Docket Number: D,No. 748

Page 394

624 F.2d 394 105 L.R.R.M. (BNA) 2301, 88 Lab.Cas. P 11,920 William MITCHELL, Plaintiff-Appellant,
v.
UNITED PARCEL SERVICE, INC., and Department Store and
Wholesale Drivers, Warehousemen and Helpers, Local
Union # 177, Defendants-Appellees. No. 748, Docket 79-7803. United States Court of Appeals,
Second Circuit. Argued Feb. 29, 1980.
Decided March 3, 1980.

Page 395

David Jaroslawicz, New York City (Ira Leitel, Carol Mellor, and Leitel & Jaroslawicz, New York City, on the brief), for appellant Mitchell.

M. David Zurndorfer, New York City (Edward Silver, Mark L. Goldstein, and Proskauer, Rose, Goetz & Mendelsohn, New York City, on the brief), for appellee United Parcel Service, Inc.

Albert S. Parsonnet, Newark, N. J. (Parsonnet, Duggan & Pykon, Newark, N. J., on the brief), for appellee Department Store And Wholesale Drivers, Warehousemen And Helpers Local Union # 177.

Before KAUFMAN, Chief Judge, TIMBERS, Circuit Judge, and WERKER, District Judge. ^*

TIMBERS, Circuit Judge:

Appellant William Mitchell appeals from a judgment entered in the Eastern District of New York, Charles P. Sifton, District Judge, dismissing his wrongful discharge complaint under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1976), as barred by the 90 day limitation period of § 7511 of the New York Civil Practice Law & Rules. The sole issue on appeal ¹ is whether the district court erred in applying § 7511 to the instant action. We hold that it did.

I.

Appellant, a member of Local Union # 177 of the Department Store and Wholesale Drivers, Warehousemen and Helpers, was employed as a car washer by United

Page 396

Parcel Service, Inc. (UPS). In January 1977 appellant was discharged by UPS for dishonest acts, including "stealing time" and falsifying time cards. Appellant, who denied the charges against him, requested that his union file a grievance on his behalf contesting the discharge. As a member of Local Union # 177, the terms of appellant's employment, including grounds for discharge and grievance procedures, were governed by the collective bargaining agreement between UPS and Local Union # 177. Pursuant to this agreement, appellant's grievance was submitted to an arbitration panel the Joint Atlantic Area Parcel Grievance Committee for final resolution. Appellant was represented by his union at the hearing before this panel. On February 16, 1977 the arbitration panel denied appellant's grievance and upheld his discharge. According to the collective bargaining agreement, this decision was final and binding.

Seventeen months after the arbitral decision was rendered, appellant commenced an action under LMRA § 301 ² against his union and employer, alleging that UPS had breached the collective bargaining agreement by wrongfully discharging him and that Local Union # 177 had breached its statutory duty of fair representation by the manner in which it handled appellant's grievance. The district court granted appellees' motions for summary judgment, dismissing the complaint on the ground that the action was barred by the 90 day limitation period set forth in § 7511. ³

II.

There is no federal statute of limitations applicable to § 301 actions. As a result, the Supreme Court has held that "the timeliness of a § 301 suit . . . is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations." International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO v. Hoosier Cardinal Corp., 383 U.S. 696, 704-05 (1966).

The district court, reasoning that "(t)he effect of any grant of relief . . . would be to vacate the determination of the arbitrators", held that the appropriate state statute of limitations was the 90 day period for "application(s) to vacate or modify an (arbitration) award". N.Y.Civ.Prac.Law § 7511 (McKinney 1963). We disagree. We hold that the limitation period which should have been applied is New York's six year period for actions alleging breach of contract. N.Y.Civ.Prac.Law § 213(2) (McKinney 1972).

In addressing the question of which New York statute of limitations should be applied in this case, we turn first to our decision in Abrams v. Carrier Corp., 434 F.2d 1234 (2 Cir. 1970), cert. denied, 401 U.S. 1009 (1971), where we held that:

"when a § 301 suit is brought against an employer alleging breach of the collective bargaining agreement in conjunction with a claim that the union breached its fair representation duty to pursue the employee's grievance, the same period of limitations should be applied to both claims. In the present case,...