The opinion of the court was delivered by: Mihm, District Judge.
For purposes of this motion to dismiss, the parties take
these allegations as true. Donna Gardner, an employee of
Illinois Bell and a member of the Communications Workers of
America (hereinafter Union), was fired from Bell on February
14, 1979. She attempted to file a grievance to challenge the
discharge and took all steps necessary within 30 days.
However, the Union failed to investigate the incident or
institute any grievance procedure. On April 29, 1982, Gardner
filed this lawsuit suing Bell for wrongful discharge (Count
I); suing the Union for breach of its duty of fair
representation (Count II); and suing W.C. Button, Union
Vice-President, in his individual capacity (Count III).
Gardner asks for reinstatement and $300,000 damages.
Illinois Bell answered the complaint and raised the statute
of limitations as an affirmative defense. Gardner moved to
strike this affirmative defense. The CWA also filed a motion
to dismiss on the grounds that the suit is time barred by the
statute of limitations. Button moved for the dismissal of
Count III on the ground that Union officials are not
individually liable for the Union's breach of its duty of fair
In addition, Illinois Bell has filed a motion for costs and
expenses incurred in opposing Gardner's motion to strike the
affirmative defense on the ground that such motion to strike
was frivolous and groundless. In turn, Gardner has filed a
petition for costs incurred in opposing Bell's motion for
§ 301 of the LMRA permits a union employee to sue his
employer for wrongful discharge. However, where the union and
the employer have agreed to submit disputes to a
grievance/arbitration process, the employee must first show
that the union has breached its duty of fair representation.
See, Hines v. Anchor Motor Freight Co., 424 U.S. 554, 96 S.Ct.
1048, 47 L.Ed.2d 231 (1970). This duty of fair representation
is derived from § 301.
Congress did not specify which statute of limitations was to
govern suits under § 301. Therefore, courts must decide which
statute of limitations should govern as a matter of federal
law, "by reference to the appropriate state statute of
limitations." Chauffeurs Local 135 v. Jefferson Trucking Co.,
628 F.2d 1023, 1026 (7th Cir. 1980); UAW v. Hoosier Cardinal
Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966).
There is a recent Supreme Court case on this question. In
United Parcel, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559,
67 L.Ed.2d 732 (1981), the Supreme Court held that a suit by an
employee against an employer under § 301 can be most closely
analogized to an action to vacate an arbitration award because
the employee must first establish a flaw in the binding
grievance procedure before being entitled to reach the merits
of his contract claim. Therefore, the Supreme Court applied the
state statute of limitations for vacating an arbitration award.
The Seventh Circuit followed Mitchell in Davidson v. Roadway
Express, Inc., 650 F.2d 902 (7th Cir. 1981), by applying the
90-day Indiana statute for vacating an arbitration award. It is
therefore clear that the cases support the application of the
90-day statute of limitations in this case.
Illinois' arbitration act provides a 90 day period in which
an action must be filed to vacate an arbitration award.
Ill.Ann.Stat. Ch. 10, § 112 (Smith-Hurd 1976). This 90 day
statute of limitation applies even though § 112(e) states:
"(e) Nothing in this Section or any other Section
of this Act shall apply to the vacating,
modifying, or correcting of any award entered as
a result of an arbitration agreement which is
part of or pursuant to a collective bargaining
agreement; and the grounds for vacating,
modifying, or correcting such an award shall be
those which existed prior to the enactment of
This conclusion rests on the Supreme Court's directive in
Mitchell that the Federal Court should choose the state statute
most closely analogous to a statute of limitation for the
vacation of an arbitration award.
Plaintiff argues that the 90-day statute of limitation
contained in § 112 is inapplicable because there was never any
action taken by the Union to pursue her grievance rights. In
response to this objection, this Court agrees with and adopts
the reasoning in Bigbie v. Local 142, 530 F. Supp. 402, 405
"[I]t is quite irrelevant at what point in the
contractual grievance procedure Union's breach of
its duty of fair representation has occurred.
Whether Union has failed to file any grievance at
all (as alleged here) or has failed to represent
the employee fairly before the grievance
committee (as in Davidson) or has failed to appeal
from an adverse arbitration decision (as in
Mitchell) has no significance in relation to the
substance of a Section 301 claim: whether Union has
breached its duty of fair representation. From the
employee's viewpoint a union's refusal to launch
the grievance procedure is just as `final and
binding' as a refusal to carry forward a grievance
at any point after the procedure has been invoked.
What is significant in each situation is that the
Mitchell Court chose to analogize the action to one
vacating an arbitration award, rather than applying