Perez v. Dana Corp., Parish Frame Div.

• Decision Date: 28 September 1983
• Docket Number: No. 3733,No. 82-1547,3733,82-1547
• Citation: 114 L.R.R.M. 2814,718 F.2d 581
• Parties: 114 L.R.R.M. (BNA) 2814, 98 Lab.Cas. P 10,484 PEREZ, John T., Appellant, v. DANA CORPORATION, PARISH FRAME DIVISION and United Steelworkers of America, Local Union
• Court: U.S. Court of Appeals — Third Circuit

Page 581

718 F.2d 581

114 L.R.R.M. (BNA) 2814, 98 Lab.Cas. P 10,484

PEREZ, John T., Appellant, v. DANA CORPORATION, PARISH FRAME DIVISION and United

Steelworkers of America, Local Union No. 3733.

No. 82-1547.

United States Court of Appeals, Third Circuit.

Argued June 13, 1983.

Decided Sept. 28, 1983.

Louis M. Shucker (argued), Central Pennsylvania Legal Services, Reading, Pa., for appellant.

Richard E. Lieberman (argued), Georgeanne H. Tilson, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., and Kurt H. Decker, Stevens & Lee, Reading, Pa., for appellee Dana Corp.

Richard J. Brean, Asst. General Counsel, United Steelworkers of America (argued), Pittsburgh, Pa., and Joseph Lurie, Galfand, Berger, Senesky, Lurie & March, Philadelphia, Pa., for appellee United Steelworkers of America, Local Union No. 3733.

Before HUNTER and HIGGINBOTHAM, Circuit Judges, and ZIEGLER, ^* District Judge.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge.

Under section 301 of the National Labor-Management Relations Act of 1947 ("the NLMRA"), ¹ an individual employee may bring an action charging his employer with breach of the collective bargaining agreement, and his union with violating its duty of fair representation in mishandling the ensuing grievance. Vaca v. Sipes, 386 U.S. 171, 186-87, 87 S.Ct. 903, 914-915, 17 L.Ed.2d 842 (1967); see Hines v. Anchor Motor Freight, 424 U.S. 554, 567, 96 S.Ct 1048, 1057-1058, 47 L.Ed.2d 231 (1976). Neither section 301 nor any other section of the NLRMA expressly designates the statute of limitations applicable to such Vaca-Hines actions.

Appellant John T. Perez brought this Vaca-Hines suit against appellees Dana Corporation, Parish Frame Division ("the Company") and United Steelworkers of America, Local Union No. 3733 ("the Union"). Perez alleged that the Company breached the collective bargaining agreement by discharging him, and that the Union violated its duty of fair representation by failing to pursue his grievance. The district court held that United Parcel Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), applied retroactively, and that Perez's claims were barred by the thus-applicable Pennsylvania statute of limitations for vacation of arbitration awards. Perez v. Dana Corp., 545 F.Supp. 950 (E.D.Pa.1982). Perez now appeals.

We hold that DelCostello v. International Brotherhood of Teamsters, --- U.S. ----, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), decided subsequent to Mitchell and during the pendency of this appeal, applies retroactively. Perez's claims are thus barred by the six-month statute of limitations contained in section 10(b) of the National Labor Relations Act ("the NLRA"), 29 U.S.C. Sec. 160 (1976). We will affirm on those grounds.

I

On September 12, 1979, Perez got into a brawl with a co-worker at the Company's Reading, Pennsylvania facility. The Company suspended Perez pending determination of the appropriate penalty. Seeking to reverse the suspension, Perez filed a grievance pursuant to the applicable provisions of the collective bargaining agreement. A hearing on the grievance was held on September 27, 1979. On October 2, 1979, the Company converted the suspension into a discharge. On October 5, 1979, the Union informed Perez that it would not take his grievance to arbitration. Perez states that his cause of action against the Company and the Union arose "on or about October 5, 1979." Amended Brief of Appellant at xiii.

On September 10, 1980, this court decided Liotta v. National Forge Co., 629 F.2d 903 (3d Cir.1980), cert. denied, 451 U.S. 970, 101 S.Ct. 2045, 68 L.Ed.2d 348 (1981). In Liotta we stated that the timeliness of a section 301 suit was determined by reference to the appropriate state statute of limitations. We then determined that the appropriate state statute of limitations for an employee's Vaca-Hines suit against his Pennsylvania employer was the three-month limitations period for vacation of an arbitrator's award contained in section 13 of the Pennsylvania General Arbitration Act, Pa.Stat.Ann. tit. 5, Sec. 173 (Purdon 1963). 629 F.2d at 905. ²

Responding to the conflict in the circuits created by Liotta, the Supreme Court on April 20, 1981, decided United Parcel Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981). The Court agreed that the state cause of action most analogous to an employee's Vaca-Hines suit against his employer was an action to vacate an arbitration award. Id. at 62, 101 S.Ct. at 1563-1564. The Court held, therefore, that the employee's suit was governed by the state's ninety-day limitations periods for vacation of arbitration awards. Id. at 64, 101 S.Ct. at 1564-1565. Because the parties' arguments and the grant of certiorari had been confined to the choice among state statutes of limitations, the Court declined to consider the argument of an amicus that it should apply the six-month limitations period for unfair labor practice charges contained in section 10(b) of the NLRA. Id. at 60 n. 2, 101 S.Ct. at 1562-1563 n. 2.

On September 18, 1981, twenty-three months after his cause of action arose, Perez filed suit against the Company and the Union in the United States District Court for the Eastern District of Pennsylvania. In his complaint Perez alleged that his discharge violated the penalty provisions of the collective bargaining agreement. Perez also alleged that the Union violated its duty of fair representation by refusing to represent him in the initial grievance hearings or carry his grievance to the arbitration stage. ³ In its answer the Union asserted that Perez's claims were barred because his suit was brought outside the limitations period established by section 10(b) of the NLRA. The Company filed a motion to dismiss on the grounds that Perez had failed to file his suit either within the limitations period of section 10(b) or of the Pennsylvania statute of limitations for actions to vacate arbitrator's awards. The Union then moved for summary judgment based on Perez's failure to bring suit within either limitations period.

On August 13, 1982, the district court granted the Company's motion to dismiss and the Union's motion for summary judgment. 545 F.Supp. at 951. The court stated that the Supreme Court in Mitchell had held that such section 301 actions were governed by the state statute of limitations for actions to vacate arbitration awards. Applying the test set forth in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), the court determined that Mitchell should be applied retroactively. Because Perez had failed to file his suit within the Pennsylvania statute of limitations for actions to vacate arbitration awards, the district court held that Perez's claims were time-barred.

Perez filed a notice of appeal to this court on September 13, 1982. While that appeal was pending the Supreme Court decided DelCostello v. International Brotherhood of Teamsters, --- U.S. ----, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), which addressed the argument that the Court had left unconsidered in Mitchell. The Supreme Court held that the most apt analogy for an employee's Vaca-Hines suit against an employer and a union was to the six-month statute of limitations set forth in section 10(b) of the NLRA, and not to any state statute of limitations. The Court concluded that section 10(b) "should be the applicable statute of limitations governing the suit, both against the employer and against the union." Id. at 2285.

II

As a general rule an appellate court must apply the law in effect at the time it renders its decision. Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 486 n. 16, 101 S.Ct. 2870, 2879 n. 16, 69 L.Ed.2d 784 (1981); United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49 (1801); Behring International v. Imperial Iranian Air Force, 699 F.2d 657, 665-66 (3d Cir.1983). Perez's Vaca-Hines suit against his employer and his union is indistinguishable from the suits involved in DelCostello. Consequently, if DelCostello applies retroactively, section 10(b)'s six-month statute of limitations, rather than any state statute of limitations, applies to bar Perez's claims.

Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), sets forth three factors that we must consider to determine whether a civil statute of limitations applies retroactively. ⁴ See Marino v Bowers, 657 F.2d 1363, 1365 (3d Cir.1982) (en banc). First, we must determine whether the decision establishes "a new principle of law, either by overruling clear past precedent on which the litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed." Chevron, 404 U.S. at 106, 92 S.Ct. at 355. Second, we must look to the prior history of the decision in question, and to its purpose and effect, to ascertain "whether retrospective operation will further or retard its operation." Id. at 106-07, 92 S.Ct. at 355-356 (quoting Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601 (1965)); Marino v. Bowers, 657 F.2d 1363, 1365 (3 Cir.1982). Third, we must weigh "the inequity imposed by retroactive application." Chevron, 404 U.S. at 107, 92 S.Ct. at 355.

A. The Change from Prior Law

To determine whether DelCostello established a new principle of law by overruling clear past precedent or deciding an issue of first impression, we must compare DelCostello with prior law. If DelCostello wrought "an abrupt and fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced an older one" on which Perez had relied, retroactive application may be inappropriate. Hanover Shoe v. United Shoe Machinery Corp., 392 U.S. 481, 498, 88 S.Ct. 2224, 2234, 20 L.Ed.2d 1231 (1968); see Service Employees International Union, Local No. 36 v. Office Center Services, 670 F.2d 404, 413 (3d Cir.1982) (requiring "a newly announced and wholly unanticipated statute of limitations")....