Smith v. General Motors Corp.

747 F.2d 372, 117 L.R.R.M. (BNA) 2941

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 2, 1984
• Docket: Nos. 82-1822, 82-5676 and 83-3414
• Status: Published

Opinions

BOYCE F. MARTIN, Jr., Circuit Judge.

The sole issue in these three cases is whether the decision in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151,103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), establishing a six-month statute of limitations for hybrid, section 301/unfair representation claims, is to be given retroactive as well as prospective effect. A panel of this court heard oral arguments in Smith v. General Motors and Fulkerson v. International Harvester but did not issue opinions. Instead, the panel members moved for consideration en banc because of an apparent conflict in our cases dealing with this issue. That request was granted pursuant to Sixth Circuit Rule 14(a) and Fed.R.App.P. 35. The third case, McConnell v. Rainbo Baking Co., was never submitted to a panel but rather was argued before the en banc court in the first instance.

I.

Judy Smith, appellant in No. 82-1822, was an employee at General Motor’s AC Spark Plug Division in Flint, Michigan. On September 5, 1980, Smith was discharged because she allegedly reported for work under the influence of alcohol in violation of shop rules and her probationary employment agreement. Smith claims that she was not reporting to work but rather was returning to work after her shift had ended to recover the purse she left behind. She immediately filed a grievance over her discharge. However, on October 9, 1980, her union agreed with the employer to withdraw the grievance and change her discharge to a voluntary quit. On September 16, 1981, some eleven months later, Smith filed a complaint in Wayne County, Michigan, Circuit Court charging her employer with violation of her probationary employment agreement.¹ The ease was subsequently removed. On October 5, 1982, the district judge dismissed Smith’s complaint, holding that our intervening decision in Badon v. General Motors Corp., 679 F.2d 93 (6th Cir.1982), which established a six-month statute of limitations for these claims, should be applied retroactively.²

David Fulkerson, Edward Latham, Jr., Johnny Perry, and Robert Wolfe, appellants in No. 82-5676, were employees at International Harvester’s Louisville, Kentucky plant. On August 6, 1979, all four were discharged for their participation in an illegal wildcat strike. The union filed grievances on behalf of each employee but to no avail. After the union declined to take the grievances to arbitration, the discharges were declared final on September 30, 1980. Some fifteen months later, all but Wolfe filed a complaint alleging breach of the collective bargaining agreement by their employer and unfair representation by their union.³ On September 30, 1982, Wolfe was allowed to intervene. On October 8, 1982, the district judge, in light of Badon, dismissed their complaint as untimely filed.⁴

Dennis McConnell, appellant in No. 83-3414, was an employee at Rainbo Baking Company’s plant in Franklin, Ohio. On July 23, 1982, McConnell was fired for failing to report to work as scheduled and for failing to call in to explain his absence. Later that day, McConnell asked his Teamsters local to intervene in his behalf. The union told him they could do nothing for him. On January 19, 1983, almost six months later, McConnell filed this proceeding in the district court against both his union and his employer. On May 6, 1983, his complaint was dismissed because it was barred by Ohio’s three-month statute of limitations for actions to vacate arbitration awards.⁵

II.

In DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court, in an effort to untangle a very confused area of the law, elected to dispense with its normal practice of borrowing analogous state statutes of limitations for federal statutes lacking their own and adopted a uniform, six-month statute of limitations for hybrid section 301/unfair representation claims. The issue raised in each of these three cases is whether the holding of DelCostello should be applied to cases already filed but not finally decided before the decision in DelCostello.

Opinion on this issue in the other circuits is fairly uniform. The First, Second, Third, Fourth, Fifth, Seventh, Eighth and Eleventh Circuits have all held that DelCostello should be given retroactive effect. See Graves v. Smith’s Transfer Corp., 736 F.2d 819 (1st Cir.1984); Welyczko v. U.S. Air, Inc., 733 F.2d 239 (2d Cir.1984); Perez v. Dana Corp., 718 F.2d 581 (3d Cir.1983); Murray v. Branch Motor Express Co., 723 F.2d 1146 (4th Cir.1983); Edwards v. Sea-Land Service, Inc., 720 F.2d 857 (5th Cir.1983); Storck v. International Brotherhood of Teamsters, 712 F.2d 1194 (7th Cir.1983); Lincoln v. District 9, 723 F.2d 627 (8th Cir.1983); Hand v. International Chemical Workers Union, 712 F.2d 1350 (11th Cir.1983).⁶ Only the Ninth Circuit has found that DelCostello should not be applied retrospectively. See Barina v. Gulf Trading & Transportation Co., 726 F.2d 560 (9th Cir.1984); Edwards v. Teamsters Local No. 36, 719 F.2d 1036 (9th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1599, 80 L.Ed.2d 130 (1984). The prior opinion in this circuit appears -to be divided. In Pitts v. Frito-Lay, Inc., 700 F.2d 330 (6th Cir.1983), a case decided before DelCostello, this court declined to give retrospective effect to Badon v. General Motors Corp., 679 F.2d 93 (6th Cir.1982), an earlier opinion of this court which essentially presaged the holding in DelCostello. In Curtis v. Int’l Brotherhood of Teamsters, 716 F.2d 360 (6th Cir.1983), we recognized that DelCostello was retroactively applicable. Nevertheless, this statement was dictum.⁷

III.

The traditional method for determining the retroactivity of a decision in a civil case is to undertake the three-part analysis called for by Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971): (1) does the decision represent a “clear break” with past law; (2) would retroactive application further or retard operation of the new rule; and (3) could retroactive application “produce substantial inequitable results.” In Chevron itself, the Supreme Court declined to give retroactive effect to a new rule changing the statute of limitations in certain admiralty actions.

Nevertheless, we agree with the Second Circuit that use of the Chevron analysis is not appropriate here because the Supreme Court implicitly held in Del-Costello that the statute of limitations should be applied retroactively by barring the claim that was in front of the Court. See Welyczko, 733 F.2d at 241. If the Supreme Court had not intended for Del-Costello to apply retroactively, the Court easily could have reserved the issue or could have applied the statute of limitations prospectively, as it did in Chevron. By applying the statute of limitations to extinguish the claim in the case before the Court, we feel the Supreme Court demonstrated its intent to apply DelCostello retroactively. Accordingly, we hold that the six-month statute of limitations for hybrid, section 301/unfair representation claims is. applicable to all cases pending at the time DelCostello was decided.

IV.

In No. 82-1822, appellant Smith filed her complaint eleven months after her cause of action accrued. Thus it would appear that her complaint is barred by our decision today. However, Smith argues in her brief that the union never told her that her grievance had been dismissed and her discharge changed to a voluntary quit. She argues that this conduct by the union was sufficient to toll the running of the statute long enough to make her complaint timely. Accordingly, we remand her case to the district court to determine if this claim has any merit.

As for appellants in No. 82-5676, their claim was filed fifteen months after their cause accrued. As they have alleged no conduct by defendants which would cause the statute to be tolled, their case is remanded to the district court with directions to dismiss.

Finally, in No. 83-3414, appellant McConnell filed his claim five months and twenty-seven days after his discharge. Under DelCostello, that is soon enough. Accordingly, the district court’s decision to dismiss his complaint is reversed and the case remanded for further proceedings.

1 . The law in effect at the time her case was filed allowed her three years from the time of injury to file her complaint. See, e.g. Echols v. Chrysler Corp., 633 F.2d 722 (6th Cir.1980).

2 . In a subsequent case, this court held that Ba-don should not be given retroactive effect. See Pitts v. Frito-Lay, Inc., 700 F.2d 330 (6th Cir.1983). This decision, however, is no longer dispositive because of the intervening Supreme Court decision in DelCostello establishing a uniform, six-month statute of limitations for all hybrid, section 301/unfair representation claims.

3 . The law in effect at the time this case was filed apparently allowed the appellants five years from the time their discharges became final to bring their complaints.. See, e.g., Gray v. Int'l Ass'n of Heat & Frost Insulators, 416 F.2d 313 (6th Cir.1969).

4 . See supra n. 2.

5 . In United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), the Supreme Court decided that state statutes of limitations for vacating arbitration awards were the appropriate statutes to use for determining the timeliness of an employee’s section 301 claim against an employer for violation of the collective bargaining agreement. In Lawson v. Truck Drivers, 698 F.2d 250 (6th Cir.1983), decided two days before McConnell filed his complaint, we extended this rule to unfair representation claims brought against unions in Ohio.

6 . Lest we paint with too broad a brush, we should note that the decisions in Perez v. Dana Corp. and Edwards v. Sea-Land were limited to the facts of their particular cases. The courts appear to have proceeded with caution because of their reading of the third prong of the Chevron Oil Co. v. Huson test for retroactivity, namely “the inequity imposed by retroactive application.” 404 U.S. 97, 107, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971). The courts examined the diligence with which the plaintiffs in each case acted to protect their rights and found them wanting. Presumably, litigants of greater diligence might manage to avoid being barred by DelCostello. We do not agree, however, that the equity inquiry called for in Chevron is to be made on a case-by-case basis. The prospect of a separate statute of limitations for every section 301 plaintiff with a case pending when DelCostello came down is unacceptable.

We also note that two of the other Circuits that have declared DelCostello retroactively applicable, the Seventh and the Eleventh, did so in cases where retroactivity enhanced rather than restricted employees’ access to the courts. See Storck v. Int’l Brotherhood of Teamsters, 712 F.2d 1194 (7th Cir.1983); Hand v. Int'l Chemical Workers Union, 712 F.2d 1350 (11th Cir.1983). In those cases, the district courts had dismissed the employees’ complaints because not filed within the three-month limitations period called for by the Supreme Court's decision in United Parcel Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981). Application of the six-month DelCostello period made their complaints timely. Perhaps these courts might reconsider their DelCostello holding when a new case restricting access comes along.

7 . Ironically two of our unpublished opinions are more clearly in conflict. In LaBond v. McLean Trucking Co., No. 82-1576 (6th Cir.1983), we found that DelCostello was not retroactive. In Brain v. Roadway Express, Inc., No. 82-3078 (6th Cir. Sept. 23, 1983), we found that it was.