Winkels v. George A. Hormel & Co., AFL-CI

• Decision Date: 11 May 1989
• Docket Number: AFL-CI,P-9,A,No. 88-5197,AFL-CIO,L,No. 13 and T,J,13 and T,88-5197
• Citation: 874 F.2d 567
• Parties: 131 L.R.R.M. (BNA) 2338, 57 USLW 2683, 111 Lab.Cas. P 11,203 Peter T. WINKELS, Appellant, v. GEORGE A. HORMEL & COMPANY, a Delaware corporation, United Food & Commercial Workers, International Union,oseph Hanson, individually and in his official capacity as Regional Director, United Food & Commercial Workers, International Union, Regionrustee ofocal 9, United Food & Commercial Workers,ppellees. GEORGE A. HORMEL & CO., v. UNITED FOOD & COMMERCIAL WORKERS, INTERNATIONAL UNION,oseph Hanson, individually and in his official capacity as Regional Director, United Food & Commercial Workers, International Union, Regionalrustee ofocal 9, United Food & Commercial Workers,
• Court: U.S. Court of Appeals — Eighth Circuit

Page 567

874 F.2d 567

131 L.R.R.M. (BNA) 2338, 57 USLW 2683,

111 Lab.Cas. P 11,203

Peter T. WINKELS, Appellant, v. GEORGE A. HORMEL & COMPANY, a Delaware corporation, United

Food & Commercial Workers, International Union, AFL-CIO,

Joseph Hanson, individually and in his official capacity as

Regional Director, United Food & Commercial Workers,

International Union, Region No. 13 and Trustee of P-9

AFL-CIO, Local 9, United Food & Commercial Workers, AFL-CIO,

Appellees.

GEORGE A. HORMEL & CO., v. UNITED FOOD & COMMERCIAL WORKERS, INTERNATIONAL UNION,

AFL-CIO, Joseph Hanson, individually and in his official

capacity as Regional Director, United Food & Commercial

Workers, International Union, Regional No. 13 and Trustee of

P-9 AFL-CIO, Local 9, United Food & Commercial Workers, AFL-CIO.

No. 88-5197.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 12, 1988.

Decided May 11, 1989.

Paul Alan Levy, Washington, D.C., for appellant.

William Isaacson, Washington, D.C., David F. Loeffler, Milwaukee, Wis., for appellees.

Before HEANEY, ^* FAGG and BOWMAN, Circuit Judges.

HEANEY, Senior Circuit Judge.

Peter T. Winkels appeals from a district court order granting summary judgment in favor of Geo. Hormel & Company (Hormel), United Food & Commercial Workers International (UFCW), Local 9 of UFCW, and Joseph Hanson. We reverse.

BACKGROUND

Winkels worked at Hormel's Austin, Minnesota, plant and belonged to Local 9, formerly known as Local P-9, of the In October of 1986, Winkels filed a grievance with the union, alleging that Hormel's failure to reinstate him violated the collective bargaining agreement. Sometime during the next four months, the union decided neither to process Winkels' grievance nor to proceed to arbitration. Although the parties disagree as to the exact date, all agree that Winkels had knowledge of the union's decision not to process his complaint by January 22, 1987.

UFCW. In 1985, Winkels took a leave of absence from his job to serve as business agent for Local P-9, as allowed in Article 10.6 of the collective bargaining agreement in force at that time. Local P-9 decided to strike Hormel in August 1985, and continued the strike into 1986, against the wishes of UFCW. In May 1986, UFCW placed Local P-9 in a trusteeship and appointed Joseph Hanson as trustee. The union terminated Winkels as business agent in June 1986. When Winkels sought to be reinstated by Hormel, he learned that his position had been filled by a permanent replacement.

On July 21, 1987, Winkels started what is popularly known as a hybrid Sec. 301/fair representation suit in state court against Hormel, UFCW, Joseph Hanson and Local 9. The essence of Winkels' complaint is that Hormel breached its contractual obligation to reinstate him after his union leave in violation of section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185, and that the union, by failing to process his grievance, violated the duty of fair representation implied by the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq. Hormel, UFCW and Local 9 were served with a summons and a complaint on July 21, 1987. The following day, Winkels delivered a summons and complaint to the Hennepin County sheriff for service on Hanson. The documents were delivered on July 27, 1987. Winkels never filed a complaint with the state court.

Hormel and UFCW then removed Winkels' hybrid action to federal district court. In their motion for summary judgment, they argued that Winkels' suit was time-barred as he had failed to commence his suit by filing within six months of the date on which his action accrued as required by DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) and West v. Conrail, 481 U.S. 35, 107 S.Ct. 1538, 95 L.Ed.2d 32 (1987). Although the district court apparently agreed with the defendants' interpretation of West v. Conrail, we do not. First, we find no language in Conrail suggesting that Fed.R.Civ.P. 3 has become a substantive rule of federal labor law, applicable to hybrid actions brought in state court. Second, in the absence of a clear statement to the contrary, we will follow the general rule that state procedural rules govern cases originating in state court until removed to federal court. Finally, we disagree with the defendants that the application of the state procedural rule to hybrid actions brought in state court undermines the "uniformity" sought by the Supreme Court in DelCostello.

DISCUSSION

In DelCostello, the Supreme Court held that, because no express statute of limitations existed for hybrid actions, it would borrow the six-month limitations period provided for in section 10(b) of the NLRA. ¹ 462 U.S. at 158-71, 103 S.Ct. at 2287-94. In order to meet this statute of limitations, Winkels was required to commence his hybrid action within six months of the alleged breach--in this case, no later than July 22, 1987. At dispute here is whether the state or federal rule of procedure governing the commencement of a suit applies to a hyrid Sec. 301/fair representation claim initiated in state court and subsequently removed to federal court.

Winkels asserts that the state rule governing the commencement of an action, in this case Minn.R.Civ.Pro. 3.01, ² should apply to hybrid actions originating in state court. The defendants argue that the Supreme Court in West v. Conrail established that the federal rule, Fed.R.Civ.P. 3, ³ determines whether a hybrid suit was "commenced" within the requisite six-month period regardless of whether the case originates in federal or state court.

First, we do not find West v. Conrail applicable to cases initiated in state court. In that case, an employee brought a hybrid action in federal district court by filing his complaint, but not serving the defendants, within the six-month limitations period. The Court of Appeals read Sec. 10(b) of the NLRA to require both filing and service of the complaint within the six-month period. The Supreme Court reversed, stating:

The only gap in federal law that we intended to fill in DelCostello was the appropriate limitations period. We did not intend to replace any part of the Federal Rules of Civil Procedure with any part of Sec. 10(b) of the National Labor Relations Act. * * * Although we have not expressly so held before, we now hold that when the underlying cause of action is based on federal law and the absence of an express federal statute of limitations makes it necessary to borrow a limitations period from another statute, the action is not barred if it has been "commenced" in compliance with Rule 3 within the borrowed period.

481 U.S. at 38, 107 S.Ct. at 1541, 95 L.Ed.2d at 37 (footnote and citation omitted).

The defendants urge us to find that, in this passage, the Supreme Court created a substantive rule of federal labor law governing all hybrid actions, regardless of where these actions are brought. We do not believe, however, that the Supreme Court intended federal pleading rules to become substantive federal law in these cases. ⁴ In DelCostello, the Supreme Court merely established that a hybrid action must commence within six months of accrual. It did not address how the action is to be commenced or prosecuted, or how the statute of limitations may be tolled. West involved a hybrid action initiated and maintained exclusively in federal court. The Court's comments about applying federal procedural rules, including Fed.R.Civ.P. 4(j) governing service of process, simply cannot be read to require the imposition of federal procedural rules when the hybrid action is intiated in state court. ⁵

Furthermore, the Supreme Court's reasoning in West v. Conrail would lead us to the opposite conclusion. When borrowing a statute of limitations, the Supreme Court stated that it will take "only what is necessary to fill the gap left by Congress." West, 481 U.S. at 40 n. 6, 107 S.Ct. at 1542 n. 6, 95 L.Ed.2d at 38 n. 6. In the present case, the defendants urge us to ignore existing state procedural rules and "borrow" the federal procedural rule governing commencement of actions in all hybrid actions. Yet, the Supreme Court, in narrowing the holding of DelCostello, expressly stated that there was no need to create a new substantive rule on the tolling of the statute of limitations when, because of the availability of the forum's procedural rules, "there [was] no lacuna as to whether the action was brought within the borrowed limitations period." 481 U.S. at 39-40, 107 S.Ct. at 1542, 95 L.Ed.2d at 38. See Cannon v. Kroger Co., 837 F.2d at 665 (Murnaghan, J., dissenting) ("The procedural rule as to what it takes to commence an action is separate and distinct from what is the time period which shall govern for limitations purposes * * *.") Thus, West v. Conrail neither dictates nor supports the result urged on us by the defendants. But see Cange v. Stotler and Co., Inc., 826 F.2d 581, 599 (7th Cir.1987) (Easterbrook, J., concurring) (interpreting West v. Conrail to hold that Federal Rules of Civil Procedure prevail over inconsistent state law dealing with commencement of hybrid actions).

Second, the defendants' argument requires us to ignore the well-established rule that a federal court must honor state court rules governing commencement of civil actions when an action is first brought in state court and then removed to federal court, even though the cause of action arises from federal law. Herb v. Pitcairn, 324 U.S. 117, 120, 65 S.Ct. 459, 460-61, 89 L.Ed. 789 (1945) (whether case is pending in state court for the purpose of tolling a federal statute of limitations is determined by state law); Dravo Corp. v. White Consol. Industries, 602 F.Supp. 1136, 1139 (W.D.Pa.1985) (in case originating in state court and removed to federal court, state procedural rules on commencement apply to toll statute of limitations). Federal Rule of Civil Procedure 81(c) provides that the federal rules govern procedure after removal from state court....