720 F.2d 1247 99 Lab - Cas. P 10,611
720 F.2d 1247 99 Lab - Cas. P 10,611
720 F.2d 1247 99 Lab - Cas. P 10,611
2d 1247
99 Lab.Cas. P 10,611
v.
MOTOR CONVOY, INC., and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local 390, an unincorporated
local organization,
Defendants-Appellees.
Nos. 81-7810, 82-8137, 82-3005, 82-5625, 82-5115, 82-5194,
82-5313 and 82-5589.
Non-Argument Calendar.
Robert S. Giolito, Stanford, Fagan & Giolito, Atlanta, Ga., for defendantsappellees in 82-5625.
Thomas J. Pilacek, Pilacek, Cohen & Associates, Orlando, Fla., for Intern.
Chemical Workers Union, Local 784.
Allan M. Elster, Elster & Schwartz, North Miami Beach, Fla., for Local
390.
Joseph H. Lowe, Marlow, Shoft, Ortmayer, Smith, Connell & Valerius,
Miami, Fla., for Motor Convoy.
Harold Bronstein, Coconut Grove, Fla., for Hanson.
Appeals from the United States District Court for the Northern District of
Georgia.
Appeals from the United States District Court for the Middle District of
Florida.
Appeals from the United States District Court for the Southern District of
Florida.
Before GODBOLD, Chief Judge, FAY and CLARK, Circuit Judges.
GODBOLD, Chief Judge:
These six consolidated cases were stayed pending this court's en banc
consideration of Hand v. International Chemical Workers Union, No. 81-5828.
Hand and the present cases involve the applicable statute of limitations for an
action that combines a breach of contract claim against an employer with a
breach of duty of fair representation claim against a labor union. After this
court granted en banc consideration to Hand, 681 F.2d 1308, the Supreme
Court granted certiorari in two cases presenting the same issue, see DelCostello
v. International Brotherhood of Teamsters and United Steelworkers of America
v. Flowers, U.S. ----, 103 S.Ct. 442, 74 L.Ed.2d 599 (1982), and en banc
consideration was withheld pending decision in DelCostello. The Court decided
DelCostello June 8, 1983, see --- U.S. ----, 103 S.Ct. 2281, 76 L.Ed.2d 476
(1983), and the en banc court then remanded Hand to the panel for
consideration in light of DelCostello. See 712 F.2d 456 (11th Cir.1983). On
August 8, 1983, the panel issued its decision in Hand. See 712 F.2d 1350 (11th
Cir.1983).
In DelCostello the Supreme Court held that the six-month statute of limitations
under section 10(b) of the National Labor Relations Act, 29 U.S.C. Sec. 160(b)
(1976), governed a hybrid breach of contract/duty of fair representation claim.
Each of the hybrid actions in these six cases was filed outside the six-month
limitations period. The only remaining issue is whether the six-month period of
DelCostello will be applied retroactively to these cases. We have considered
supplemental briefs from the parties on this issue. We hold that DelCostello
does apply.
I. Retroactivity
3
It is a "general rule of long standing ... that judicial precedents normally have
retroactive as well as prospective effect." National Association of Broadcasters
v. FCC, 554 F.2d 1118, 1130 (D.C.Cir.1976). The Supreme Court in
DelCostello applied its decision retroactively to the parties before the Court.
Plaintiff Flowers, in the companion case to DelCostello, filed suit in 1979 on a
cause of action that had accrued 10 months earlier. The court of appeals found
his action timely under a state three-year statute. The Supreme Court held,
however, that section 10(b)'s six-month statute of limitations applied and that
Flowers's action was, therefore, barred. Thus the Court retroactively applied its
decision to a cause of action accruing several years earlier.
The test for nonretroactive application of a decision found in Chevron Oil Co.
v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), further supports
our conclusion. In Chevron the Supreme Court held that retroactive application
is inappropriate only where (1) the new rule overrules clear past precedent or
decides an issue of first impression whose resolution was not foreshadowed; (2)
retroactive application will retard rather than further operation of the rule; and
(3) retroactive application will produce substantial inequitable results. Id. at
106-07, 92 S.Ct. at 355-56.
Id. --- U.S. at ----, 103 S.Ct. at 2294, 76 L.Ed.2d at 493 (quoting United Parcel
Service, Inc. v. Mitchell, 451 U.S. 56, 70-71, 101 S.Ct. 1559, 1567-68, 67
L.Ed.2d 732 (1981) (Stewart, J., concurring)).
10
A. No. 81-7810
11
B. No. 82-3005
12
C. No. 82-5625
13
Grievance denied October 1979; suit filed May 1981. Summary judgment for
defendants, 538 F.Supp. 725, AFFIRMED.
D. No. 82-5115
14
Grievance filed June 1980, union withdrew it, and plaintiff learned of
withdrawal October 1980. Suit filed May 1981. Defendants' motion to dismiss
denied and interlocutory appeal granted under 28 U.S.C. Sec. 1292(b). Order
denying dismissal is REVERSED.
Grievance denied May 1979, suit filed June 1980. Judgment for defendants
AFFIRMED.
F. No. 82-8137
16