The opinion of the court was delivered by: Marshall, District Judge.
This case requires us to decide an important question of
national labor policy: What is the appropriate statute of
limitation for an action brought by an employee against his
employer and union which challenges the determination at a
contractually authorized grievance proceeding that the employer
has not violated its labor contract?
Plaintiff alleges the following. Plaintiff is an employee of
defendant D & L Transport Co. ("D & L"), and a member of
defendant Automobile Mechanics Union, Local 701 ("the union").
On May 23, 1980, plaintiff was laid off from his position as a
mechanic at D & L's Gary, Indiana terminal, due to a downturn
in D & L's business. On or about February, 1981, plaintiff
learned that D & L had not laid off a less senior employee, in
violation of the labor contract between D & L and the union.
Plaintiff informed the union of this apparent violation of the
contract.
On March 2, 1981, plaintiff was returned to his position at
D & L's Gary terminal. On March 19, pursuant to the labor
contract between D & L and the union, a grievance hearing was
held to determine whether plaintiff's layoff was unauthorized
and whether monies were owed to plaintiff as a result of the
layoff. The hearing resulted in an adjudication adverse to
plaintiff.
Plaintiff subsequently asked the union, which apparently had
represented him at the grievance hearing, why it had not raised
certain points at the hearing, including plaintiff's loss of
wages and fringe benefits. Plaintiff received no response to
his inquiry. Then, in April of 1981, plaintiff made a demand
upon the union to initiate arbitration with D & L, pursuant to
the labor contract. Again, plaintiff received no response from
the union.
Plaintiff filed the instant complaint in the Circuit Court of
Cook County, Illinois on August 26, 1981. The complaint
proceeds on the theory that D & L violated plaintiff's
contractual rights, and that the union breached its duty of
fair representation to plaintiff. D & L filed a timely petition
for removal to this court pursuant to
28 U.S.C. § 1441(b)(1976).*fn1 This court's jurisdiction rests on §
301(a) of the Labor-Management Relations Act,
29 U.S.C. § 185(a)(1976).
D & L has moved to dismiss the complaint on the ground that
it is time-barred. Defendant contends the ninety day statute of
limitations for actions to vacate arbitration awards contained
in Indiana Code 34-4-2-13 (1976) applies to this action.*fn2
Plaintiff claims that the proper statute of limitation is the
six month time limit for filing charges of unfair labor
practices found in § 10(b) of the National Labor Relations
Act, 29 U.S.C. § 160(b)(1976). Since the instant complaint
was filed more than three but less than six months after the
grievance adjudication, we are required to choose between these
statutes.
The question of whether state arbitration statutes of
limitation or § 10(b) should be applied to actions of this
type has not been decided in any reported decision. In
United Parcel Service, Inc. v. Mitchell, 451 U.S. 56,
101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), the Supreme Court held
that an action under § 301 challenging a mediator's
decision and a union's subsequent refusal to arbitrate the
grievance should be governed by the state statute of limitation
for actions seeking to vacate arbitration awards, and not the
state period of limitation for actions on contracts. However,
the Court reserved the question of whether § 10(b) of the
NLRA should be applied in preference to the state statute,
noting that the question was not properly before it.
See 101 S.Ct. at 1562 n. 2. See also id. at
1565 (Blackmun, J., concurring). However, Justice Stewart did
indicate that, in his view, the appropriate statute of
limitation was that found in the NLRA. See id. at
1565-68 (Stewart, J., concurring in the judgment). The court of
appeals for this circuit has also mentioned but not reached the
question of whether § 10(b) should be applied. See
Davidson v. Roadway Express, 650 F.2d 902, 904 n. 2 (7th
Cir. 1981). We are apparently the first post-Mitchell
court to reach this question in a published opinion.*fn3
Congress did not specify which statute of limitation was to
govern suits under § 301(a). Therefore, courts must decide
which statute of limitation should govern as a matter of
federal law, "which courts must fashion from the policy of our
national labor laws." International Union, United
Automobile, Aerospace & Agricultural Implement Workers v.
Hoosier Cardinal Corp., 383 U.S. 696, 701, 86 S.Ct. 1107,
1110, 16 L.Ed.2d 192 (1966) (quoting Textile Workers Union
v. Lincoln Mills of Alabama, 353 U.S. 448, 456, 77 S.Ct.
912, 917, 1 L.Ed.2d 972 (1957)). In Hoosier Cardinal,
the Court held that, for a breach of contract suit brought by
a union against an employer under § 301, the appropriate
statutes of limitations are the state statutes for contract
actions. However, what the Court said as to why the state
statute was appropriate indicates that its holding was limited.
The present suit is essentially an action for
damages caused by an alleged breach of an
employer's obligation embodied in a collective
bargaining agreement. Whether other § 301
suits different from the present one might call
for the application of other rules of timeliness
we are not required to decide, and we indicate no
view whatsoever on that question. 383 U.S. at 705
n. 7.
Unlike Hoosier Cardinal, the instant suit is not
simply a private breach of contract action. This much was
established by United Parcel:
[R]espondent's characterization of his action as
one for "breach of contract" ignores the
significance of the fact that it was brought in
the District Court pursuant to ยง 301(a) of the
LMRA and that the indispensible predicate for such
an action is not a showing under traditional
contract law that the discharge was a breach of
the collective bargaining agreement, but instead ...