Singer v. Flying Tiger Line, Inc.

• Decision Date: 13 August 1981
• Docket Number: No. 79-3728,79-3728
• Citation: 652 F.2d 1349
• Parties: 108 L.R.R.M. (BNA) 2392, 92 Lab.Cas. P 12,967 Donald SINGER, Plaintiff-Appellant, v. The FLYING TIGER LINE INC., and Air Line Pilots Association, International, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1349

652 F.2d 1349

108 L.R.R.M. (BNA) 2392, 92 Lab.Cas. P 12,967

Donald SINGER, Plaintiff-Appellant, v. The FLYING TIGER LINE INC., and Air Line Pilots Association, International, Defendants-Appellees.

No. 79-3728.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 5, 1981.

Decided Aug. 13, 1981.

Peter J. Marx, Los Angeles, Cal., for plaintiff-appellant.

Gary Green, Washington, D.C., A. James Roberts, Tuttle & Taylor, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before TANG and BOOCHEVER, Circuit Judges, and PRICE, ^* District Judge.

BOOCHEVER, Circuit Judge:

This suit involves a claim by an airline flight engineer that he should have been granted a second opportunity to become a copilot. He claims that the union breached its duty of fair representation and the employer breached the terms of the collective bargaining agreement. The union and employer both claim Singer's suit is barred by the applicable statute of limitations. We find that some of Singer's claims can be characterized as continuous violations and they are thus not time-barred. As to the surviving claims, however, we conclude that Singer has failed to allege facts which would preclude the district judge from granting summary judgment in favor of the defendants. We therefore affirm.

I. Facts

Donald Singer was first employed as a flight engineer or second officer by the Flying Tiger Line, Inc. (FTL) in 1956. At that time, flight engineers were represented by Teamsters Local 986, while first officers (copilots) and captains (pilots) were represented by the Air Line Pilots Association, International (ALPA).

In 1966, while Singer was still a flight engineer, Local 986, FTL and ALPA signed an agreement which provided that from that point on, ALPA would serve as the exclusive collective bargaining agent for the flight engineers in place of Local 986. The "Tripartite Agreement," as the parties refer to it, granted certain grandfather rights to the 84 flight engineers who were then represented by Local 986.

In 1970, Singer successfully bid for a position as a copilot, but in 1972 he failed to pass a proficiency test and was downgraded to flight engineer. On April 6, 1972, FTL notified Singer that he was "permanently" reduced in status to flight engineer. This letter led to a series of actions that ultimately, more than six years later, led to this lawsuit.

On April 17, 1972, Singer filed a grievance with FTL, which was denied. ALPA submitted the grievance to arbitration before the ALPA-FTL System Board of Adjustment, ¹ and ALPA counsel represented Singer at the grievance hearing. The principal issues raised were that: (1) Singer had received inadequate training for the proficiency test; (2) Singer took the test under adverse circumstances and was unaware of the fact that he would not have another chance to qualify; and (3) paragraph 22 D 3 of the collective bargaining agreement between ALPA and FTL (the Pilot Agreement) granted him a second chance to qualify as a copilot. In October 1972, the four members of the System Board voted unanimously to deny the grievance.

In May and July of 1974, Singer again bid for a copilot position and FTL again denied his request. Singer filed another grievance, FTL denied it, and ALPA again represented him at a System Board hearing. Singer raised a somewhat different issue in the 1974 proceeding. As just discussed, in 1972, Singer argued that paragraph 22 D 3 of the Pilot Agreement between ALPA and FTL provided for a second opportunity to qualify for a copilot position. The Tripartite Agreement provides that a copilot who fails a proficiency test shall be "returned to a flight engineer vacancy or assignment." Although it is not clear from the record, Singer apparently believed that the 1972 Board had relied on this language to conclude that the general language of the Pilot Agreement did not apply to the 84 flight engineers covered by the Tripartite Agreement. Singer contended in the 1974 grievance that the language in the Tripartite Agreement did not imply a permanent reduction in status. According to Singer's theory, the Tripartite Agreement was not intended to limit any rights, and therefore the general language of the Pilot Agreement providing two chances to qualify for a higher position was meant to be applied to everyone.

Prior to rendering a System Board decision on the 1974 grievance, FTL first requested an interpretation of the Tripartite Agreement by a "Joint Grievance Board." This board, established by paragraph 15 of the Tripartite Agreement, consists of three members and is designed to resolve disputes concerning the meaning of language in the agreement. On January 30, 1975 the Joint Grievance Board unanimously concluded that the Tripartite Agreement did not allow a flight engineer a second opportunity to qualify as a copilot. The basis of the decision is that flight engineers covered by the Tripartite Agreement always retained their former seniority, whereas those not covered by the agreement faced dismissal. The Joint Grievance Board apparently viewed the grandfather rights granted by the Tripartite Agreement as the quid pro quo for giving up the opportunity for a second chance to qualify for a higher position contained in the Pilot Agreement.

Following this decision, the System Board met, concluded that the Joint Grievance Board's interpretation was correct, and unanimously denied Singer's grievance.

Finally, in 1976, Singer made another bid for copilot which the company denied. FTL denied his grievance in 1977. This time ALPA arranged for Singer's case to be heard before a System Board, but refused to represent him. Singer retained private counsel. The principal issue in the hearing related to another System Board decision. In 1976, Captain Calton, an employee covered by the Tripartite Agreement, failed a captain proficiency test. At Calton's System Board hearing the Board gave Calton a second chance to qualify because it found that Calton was under the good faith belief that he had another chance to qualify, and because his proficiency check was performed under adverse circumstances.

In his 1977 grievance, Singer relitigated the issues raised in his prior grievances, and in addition contended that his case was indistinguishable from the Calton case. In a 1977 opinion, the System Board denied Singer's grievance, concluding that the Calton decision did not alter prior board precedent, and that all of Singer's other contentions had been decided by the Board that heard his 1972 and 1974 grievances.

On November 17, 1978, Singer filed a complaint in District Court against FTL and ALPA. This appeal is from an order granting the two defendants' motion for summary judgment.

II. Statute of Limitations

The Railway Labor Act does not contain a statute of limitations and it is therefore necessary to look to relevant state law. See Auto Workers v. Hoosier Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). The parties agree that California law supplies the appropriate limitations period. In Price v. Southern Pacific Transportation Co., 586 F.2d 750, 752-53 (9th Cir. 1978), this court characterized a suit against a union for a breach of its duty of fair representation as an action based upon a national labor statute and concluded that the three year limitations period of Cal.Civ.Proc.Code § 338(1) applied. The trial judge in this case concluded that an action against an employer based upon an alleged breach of a collective bargaining agreement could best be characterized as a suit upon a written agreement and applied the four year statute contained in Cal.Civ.Proc.Code § 337 which is applicable to such suits. Other jurisdictions have accepted this approach, see Butler v. Local Union 823, International Brotherhood of Teamsters, 514 F.2d 442, 446 (8th Cir. 1975), and neither FTL or the union urged the court to apply a different limitations period.

Before oral argument in this court, however, the Supreme Court decided in United Parcel Service, Inc. v. Mitchell, --- U.S. ----, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), that a suit against a union and employer following an arbitration award could best be characterized as a suit to vacate the arbitration award. Many states have short statutes of limitations applicable to such actions, --- U.S. at ---- n.5, 101 S.Ct. 1564 n.5, and California's 100 day limitations period contained in Cal.Civ.Proc.Code § 1288 is no exception.

In the future, as Mitchell requires, when the action is commenced after an unfavorable arbitral decision, we shall treat suits against a union for a breach of the duty of fair representation and against an employer for a breach of a collective bargaining agreement under this type of limitations statute. In this case, however, we decline to apply the rule.

Neither FTL nor ALPA ever asserted in district court that the shorter statute contained in § 1288 was applicable to this case, and ordinarily we will not hear claims that are advanced for the first time on appeal. --- U.S. at ---- n.2, 101 S.Ct. at 1562-63 n.2. Moreover, we believe that it would be inequitable to apply such a rule retroactively. In Chevron Oil Co. v. Huson, 404 U.S. 97, 105-108, 92 S.Ct. 349, 354-56, 30 L.Ed.2d 296 (1971), the Supreme Court, in declining to apply a shorter statute of limitations retroactively to extinguish a claim, identified a number of factors that it considered important. In this case, as in Huson, we believe that a critical factor is that the rule of the Mitchell case is not one which might have been anticipated. Although the Price decision is not precisely on point, ² we believe Singer might reasonably have relied upon it to conclude that he had three years to file a claim. In the district court, FTL and ALPA both vigorously argued that Singer's claims were barred by a three year statute of limitations, rather than the shorter...