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May 2, 1984


The opinion of the court was delivered by: Moran, District Judge.


In DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court held that hybrid actions brought under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, against a union for breach of its duty of fair representation and against an employer for breach of a collective bargaining agreement would be governed by a six-month statute of limitations. The six-month period was taken from a federal statute, Section 10(b) of the National Labor Relations Act (NLRA), 29 U.S.C. § 160 (b). Presently before this court is the question of what statute of limitations applies to an action by an employer to vacate a labor arbitration award. The court holds that the reasoning in DelCostello compels application of the same six-month statute of limitations to such actions.

1. Background

Plaintiff was discharged by defendant ITT Continental Baking Company, Inc. (Continental) from his position as sales driver on July 30, 1982. Continental premised the discharge on plaintiff's alleged inability to service the stores on his sales route due to an incident at a grocery store on the route. Plaintiff's employment was governed by a collective bargaining agreement entered into by Continental and defendant Local 734 (Union). The agreement provided for grievance procedures which included arbitration.

  Should any difference arise between the Employer and
  employees now provided for in these Articles, and
  which cannot be adjusted between the Employer and
  employees, it shall then be submitted to a committee
  of five (5) persons, two (2) selected by the
  Employer, two (2) by the Union, and the fifth by the
  first four members of the committee.

(Agreement, Art. XI.)

Plaintiff alleges that a grievance committee was formed and a decision was awarded in his favor ordering reinstatement. Continental alleges that no grievance committee was formed, that Continental had no opportunity to vote on the selection of the fifth member of any grievance committee that was formed, and that though meetings were held, Continental was not informed that the meetings were part of the grievance committee proceedings. Continental also alleges that the decision handed down by the purported grievance committee was grossly in error.

Continental refused to reinstate plaintiff. On January 6, 1983, plaintiff brought suit against Continental under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, seeking to enforce the award of the joint grievance committee. Plaintiff also brought suit under Section 301 against the Union for breach of its duty of fair representation. The Union brought a cross claim against Continental seeking enforcement of the award. Continental answered on February 28, 1983, denying the existence of a valid decision by the grievance committee, and brought counterclaims against the Union and third party individuals under Section 301, seeking to have the award vacated and declared unenforceable, as well as seeking monetary relief.

The Union and plaintiff have moved to strike those portions of Continental's answer and to dismiss that count of the counterclaim which contests the validity of the arbitration award. These motions are brought on statute of limitations grounds. Plaintiff also moves for summary judgment on its count seeking enforcement of the award. The Union moves to strike Continental's fourth affirmative defense as contrary to established law and to dismiss Continental's monetary claims against the Union on the grounds that Continental has yet to exhaust its remedies, under the collective bargaining agreement. Finally, individual third party defendants named in Continental's counterclaims seek to dismiss the action against them on a number of grounds.

The Union claims that Continental's answer and counterclaim, which attack the validity of the arbitration award, fall outside the 90-day limitation period for bringing an action to overturn an arbitration award. See Ill.Rev.Stat. ch. 10, § 112(b). The Union argues that the above statute is the proper state statute of limitations to govern actions brought under Section 301. See generally United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981); Chauffeurs, Teamsters, Warehousemen and Helpers, Local Union No. 135 v. Jefferson Trucking Co., Inc., 628 F.2d 1023 (7th Cir. 1980), cert. denied, 449 U.S. 1125, 101 S.Ct. 942, 67 L.Ed.2d 111 (1981). Continental claims that it is not seeking to vacate the award because it contends no valid award exists.*fn1 In the alternative, Continental contends that the ten-year state statute of limitations for written contracts, the five-year state statute of limitations governing oral contracts or the six-month federal statute of limitations for NLRA suits should apply. Briefs in this case were filed before the Supreme Court's decision in DelCostello.

As stated previously, the Court in DelCostello applied a six-month statute of limitations to hybrid actions brought by employees against the union and the employer. It is not clear whether the Court intended use of the, six-month limitation period for actions by employers to vacate an arbitration award. The 5th Circuit has declared that the Court did not so intend. See International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC v. Ingram Mfg. Co., 715 F.2d 886, 888-89 (5th Cir. 1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1711, 79 L.Ed.2d ___ (1984), where the court applied a four-year limitation. There are some indications within DelCostello to support the 5th Circuit's use of a different, if not a longer, limitations period. In DelCostello the Court was clear in defining the scope of the decision to include only the type of hybrid suit involved in that cash. In addition, the Court appeared particularly concerned about the effect of shorter limitations periods on unsophisticated employees, see DelCostello, supra, 103 S.Ct. at 2291, not a concern when an employer, surely represented by counsel, is involved. The Court in DelCostello was also concerned that use of statutes of limitations involving actions to vacate commercial arbitration awards was not sufficiently analagous to the hybrid actions involved to warrant adoption of those statutes. See Id. 103 S.Ct. at 2291-92. The analogy between an action to vacate a labor arbitration award and an action to vacate a commercial arbitration award is much stronger. While these factors show that the conclusion in DelCostello can be distinguished, other concerns underlying that decision make a compelling case for use of the six-month statute of limitations adopted by the Court from Section 10(b) of the NLRA.

The search for an appropriate statute of limitations to apply when Congress has not specifically detailed one is not done mechanically. The Court must examine the purposes to be effectuated by the limitation and what statutory period best effectuates those purposes. Thus, in Mitchell, the Court in choosing between state statutes chose the shorter period as being more consistent with congressional intent. See 451 U.S. 63-64, 101 S.Ct. at 1564-1565. And thus, in DelCostello, the Court chose to adopt the statutory period found in federal rather than in state law. The Court wrote:

  In some circumstances, however, state statutes of
  limitations can be unsatisfactory vehicles for the
  enforcement of federal law. In those instances, it may
  be inappropriate to conclude that Congress would
  choose to adopt state rules at odds with the purpose
  or operation of federal substantive law.
    "[T]he Court has not mechanically applied a state
    statute of limitations simply because a limitations
    period is absent from the federal statute State
    legislatures do not devise their limitations periods
    with national interests in mind, and it is the duty
    of the federal courts to assure that the importation
    of state law will not frustrate or interfere with
    the implementation of national policies. `Although
    state law is our primary guide in this area, it is
    not, to be sure, our exclusive guide.'" Occidental
    Life Insurance Co. v. EEOC, 432 U.S. 355, 367, 97

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