The opinion of the court was delivered by: Plunkett, District Judge.
MEMORANDUM OPINION AND ORDER
The question for decision is the appropriate statute of
limitations to apply to suits brought under section 303 of the
National Labor Relations Act (the "N.L.R.A."), 29 U.S.C. § 187
(1982), in light of the Supreme Court's recent decision in
DelCostello v. International Brotherhood of Teamsters,
462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Plaintiff, Park
Electric Company, commenced this suit on November 24, 1981,
alleging that the defendant union, Local 701 of the
International Brotherhood of Electrical Workers, engaged in a
boycott of a general contractor in late October and early
November of 1977, which caused the general contractor to
repudiate its subcontracting contract with plaintiff.
Plaintiff's claims in antitrust and state tort law have been
dismissed. Defendant now moves for summary judgment on
plaintiff's remaining claim under section 303 of the N.L.R.A.,
contending that the DelCostello decision
requires that we apply the six-month statute of limitations
found in section 10(b) of the N.L.R.A., 29 U.S.C. § 160(b)
(1982), under which plaintiff's complaint would be time-barred.
Because we find that the appropriate statute to borrow is a
state statute under which plaintiff's complaint is timely,
defendant's motion is denied.
Section 303 of the N.L.R.A. is part of a dual remedial
scheme directed against secondary boycotts. The section makes
those secondary boycotts which constitute unfair labor
practices under section 8(b)(4) of the Act,
29 U.S.C. § 158(b)(4) (1982), unlawful as well, and provides a private
right of action for persons injured by such conduct. See
29 U.S.C. § 187 (1982). While the six-month statute of limitations
found in section 10(b) for filing unfair labor practice charges
with the N.L.R.A. governs section 8(b)(4) charges, Congress did
not specify a statute of limitations for suits filed under
Courts have generally applied to section 303 cases what they
deemed to be the most analogous state statute of limitations.
See, e.g., International Union of Operating Engineers v.
Fischbach & Moore, Inc., 350 F.2d 936, 937-939 (9th Cir. 1965),
cert. denied sub nom Draucker, Inc. v. International Union of
Operating Engineers, 384 U.S. 904, 86 S.Ct. 1336, 16 L.Ed.2d
358 (1966); United Mine Workers v. Meadow Creek Coal Co.,
263 F.2d 52, 61-63 (6th Cir.), cert. denied, 359 U.S. 1013, 79
S.Ct. 1149, 3 L.Ed.2d 1038 (1959); cf. Daniel v. International
Brotherhood of Teamsters, 410 F. Supp. 541, 554 (N.D.Ill. 1976),
aff'd, 561 F.2d 1223 (7th Cir. 1977), rev'd on other grounds,
439 U.S. 551, 99 S.Ct. 790, 58 L.Ed.2d 808 (1979) (applying
state statute of limitations to suit under § 302(e) of
N.L.R.A.). We must now, as a matter of first impression,
examine this practice in light of DelCostello, see supra, in
which the Supreme Court found that the six-month statute of
limitations in section 10(b), rather than any state provision,
applies to certain suits brought under section 301, 29 U.S.C. § 185
(1982), another private right of action created by the
N.L.R.A. without an express statute of limitations.
In order to assess the applicability of the Court's
reasoning in DelCostello, we must trace with particularity what
was at issue in that case. The statutory provision under which
the DelCostello suit arose, section 301, provides a private
right of action for violations of labor contracts. Where
parties to a collective bargaining agreement have agreed to
submit contract disputes to arbitration, however, they must
attempt to exhaust the arbitration remedy in lieu of pursuing
the section 301 remedy and can seek only limited judicial
review. See DelCostello, 103 S.Ct. at 2290; Vaca v. Sipes,
386 U.S. 171, 184, 87 S.Ct. 903, 913, 17 L.Ed.2d 842 (1967).
But the Supreme Court has carved out an exception to this rule.
In the event that an employee's union fails to provide fair
representation in the arbitration proceeding, the employee is
entitled to seek judicial enforcement of his or her contractual
rights. Hines v. Anchor Motor Freight, 424 U.S. 554, 570-571,
96 S.Ct. 1048, 1059-1060, 47 L.Ed.2d 231 (1976); Vaca, 386 U.S.
at 185-186, 87 S.Ct. at 914-915. Thus section 301 has been
construed to cover "hybrid" suits by employees against both
their union, for breach of the duty of fair representation
during arbitration, and their employer, for breach of contract.
These suits are hybrid in the sense that they comprise both the
express remedy provided by section 301 and a remedy implied by
the judiciary to effectuate the express provision. Cf. Textile
Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1
L.Ed.2d 972 (1957).
The precise question in DelCostello was the appropriate
statute of limitations to apply to such hybrid suits. Earlier,
in United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101
S.Ct. 1559, 67 L.Ed.2d 732 (1981), the Supreme Court had
determined that, as between two state statutes of limitations
advocated by the parties, a statute governing actions to vacate
arbitration awards should be applied to the branch of the suit
against the employer. Two years
later, the Court reconsidered the issue in
DelCostello in a different light. Certiorari was granted as to
both the employer and the union, so that the Court considered
the appropriate time limit governing both branches of the
hybrid suit, and the Court was faced with the contention that
section 10(b) rather than any state provision should be
adopted. DelCostello, 103 S.Ct. at 2285. The Court decided to
adopt the section 10(b) rule, but on narrow grounds that do not
apply to the case before this court.
In its decision the Court provided the following guidelines
for determining appropriate statutes of limitations in the
face of Congressional silence. When a statute gives rise to a
right of action without providing an express statute of
limitations, the "fallback rule of thumb" is that Congress
intended courts to follow their normal practice of borrowing
the most analogous state statute of limitations. Id. at 2287,
2287 n. 12, 2294. If a court finds, however, that state rules
are so ill-suited as to be at odds with the purpose or
operation of the federal statute creating the cause of action,
then the court can look to federal law for a closer analogy
than state rules provide. Id. at 2289, 2294.
The Court found the DelCostello suit itself to be such a
case. The Court selected different state rules as most
analogous to each of the two branches of the suit — to the
branch of the suit against the union, the limit for filing
malpractice actions, and to the branch against the employer,
the time limit for actions to vacate arbitration awards — and
determined that each rule would in various ways frustrate the
purpose of one or the other branch of the hybrid suit. Id. at
2291-2293. For instance, the Court found that, on the one hand,
most state statutes of limitations for suits to vacate
arbitration awards, while acceptable to govern the branch of
section 301 suits against the employer, see Mitchell, 451 U.S.
at 64, 101 S.Ct. at 1564, are too short where the goal of
overturning an arbitration decision is compounded by the fact
of lack of adequate representation at arbitration. DelCostello,
103 S.Ct. at 2291. Conversely, the lengthy time generally
allowed for filing malpractice suits would frustrate federal
labor law's goal of rapid resolution of labor disputes
involving agreements which continue to bind the contending
parties. Id. at 2292-2293.
Only after determining the inadequacy of applying these
state rules to section 301 hybrid suits did the Court look to
section 10(b) and find it particularly apt. The Court noted
that the breach of the duty of fair representation by a union
is itself an unfair labor practice or at least bears a "family
resemblence" to one. Id. at 2293. Since Congress designed
section 10(b)'s limitation period to accommodate the various
interests at stake in the resolution of unfair labor practices
involving collective bargaining agreements, id. at 2204
(quoting Mitchell, 451 U.S. at 70-71, 101 S.Ct. at 1567-1568
(Stewart, J., concurring)), the Court found that this rule
would best serve the purposes of hybrid section 301 suits.
A fair reading of DelCostello does not suggest, as defendant
contends, that any cause of action based on an unfair labor
practice must be commenced within the time limit established by
section 10(b). That state law should be our starting point is
clear from the Court's reasoning, as described supra, and its
language, including a final caution that "our holding today
should not be taken as a departure from prior practice in
borrowing limitation periods for federal causes of
action. . . . [R]esort to state law remains the norm for
borrowing the limitation periods. . . ." Id. 103 S.Ct. at 2294.
The Court considered the suitability of section 10(b) only
after rejecting state law alternatives for reasons having to do
with the particular nature of the hybrid section 301 suit and
not simply because the suit embraced an unfair labor practice
claim. In fact, both dissenters to the opinion focused not on
whether the section 10(b) rule is suitable, an undisputed
point, but rather on their view that state law would and should
have sufficed. See, id. at 2295 (Stevens, J., dissenting);
id. at 2296 (O'Connor, J., dissenting). Our job,
then, is to determine whether the purpose or policy of section
303 would be frustrated, as a majority of the Supreme Court
found in regard to one type of suit arising from section 301,
by application of a state rule of timeliness.
We first determine that the most analogous state law cause
of action to section 303 is that for tortious interference
with contract. Plaintiff's claim, in essence, is that
defendant, by exerting pressure in an unlawful manner, caused
a third party to breach its contract with plaintiff, causing
plaintiff injury. Such an allegation states the necessary
elements of a tortious interference with contract claim under
Illinois law. See Martin v. Federal Life Insurance Co.,
109 Ill. App.3d 596, 65 Ill.Dec. 143, 440 N.E.2d 998, 1006-1007
(1st Dist. 1982). In fact, the district court originally
presiding over this case dismissed plaintiff's count alleging
tortious interference with contract on the grounds that the
N.L.R.A. preempts the state law remedy. Park Electric Co. v.
International Brotherhood of Electrical Workers, Local 701,
540 F. Supp. 779 (1982) (order granting motion to dismiss). Illinois
courts apply a five-year statute of limitations, Ill.Rev.Stat.
ch. 110, § 13-205 (1983), to tortious interference with
contract claims. See Tom Olesker's Exciting World of Fashion,
Inc. v. ...