                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-19-1995

Whittle v Local 641
Precedential or Non-Precedential:

Docket 94-5334




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Recommended Citation
"Whittle v Local 641" (1995). 1995 Decisions. Paper 134.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/134


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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                           No. 94-5334


             MICHAEL J. WHITTLE; JAMES CALANDRILLO,
                                             Appellants

                                V.

       LOCAL 641, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
        CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
              AFL-CIO; YELLOW FREIGHT SYSTEM, INC.


         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW JERSEY
                    (D.C. Civil No. 91-04235)


                     Argued January 12, 1995

        Before:   COWEN, NYGAARD and ALITO, Circuit Judges

                   (Opinion Filed    May 19, 1995)

JOHN A. CRANER, ESQUIRE (Argued)
Craner, Nelson, Satkin & Scheer
320 Park Avenue
P.O. Box 367
Scotch Plains, NJ 07076
Attorney for Appellants

GARY A. CARLSON, ESQUIRE (Argued)
ALBERT G. KROLL, ESQUIRE
Kroll & Gaechter
25 Pompton Avenue
Suite 309
Verona, NJ 07044
Attorneys for Appellee Local 641

JEFFREY I. PASEK, ESQUIRE (Argued)
Cohen, Shapiro, Polisher, Shiekman & Cohen
12 South 12th Street
2200 PSFS Building
Philadelphia, PA 19107
Attorney for Appellee Yellow Freight
OPINION OF THE COURT
NYGAARD, Circuit Judge.

          Plaintiffs Michael J. Whittle and James Calandrillo

appeal from the summary judgment granted to the defendants in

this action under § 301 of the Labor Management Relations Act, 29

U.S.C. § 185.   The district court held that plaintiff-appellants'

hybrid duty of fair representation claim was time-barred.     We

will reverse.

                                  I.

          This case involves a seniority dispute brought about

when defendant Yellow Freight System, Inc. began to reorganize

its New Jersey terminal operations.     Appellants were originally

hired to work in Yellow's Carlstadt terminal, where they were

represented by Teamsters Local 641.     Later, Yellow opened its

Little Falls terminal, staffing it with employees from Carlstadt

and another terminal in Rockaway.      Positions at Little Falls were

filled in accordance with the change of operations procedure

contained in the National Master Freight Agreement, which

provides for staffing new terminals on the basis of seniority.

          Appellants wished to follow the work and transfer to

the Little Falls terminal, believing that their employment

opportunities would be greater at the new facility.

Unfortunately, they did not have sufficient seniority to bid for

jobs at Little Falls.     They approached the union's business

agent, John Barnes, requesting that he help arrange a transfer.

Barnes discussed the matter with company representative Jack

Hall, who initially expressed reservations about allowing

appellants to transfer, believing that it might eventually lead
to a seniority dispute.   Nevertheless, Yellow did allow

appellants to transfer to Little Falls, on condition that they

execute an agreement, under which the appellants would retain

their company seniority for noncompetitive benefits such as

health insurance and the pension plan but would be assigned a new

terminal seniority date for the allocation of all benefits for

which workers compete, such as assignment of work.

          This arrangement apparently worked satisfactorily until

Yellow opened another terminal in Pine Brook, New Jersey and

closed its Little Falls facility.   Yellow planned to staff the

Pine Brook terminal with employees from Little Falls and

Rockaway, and this evidently made appellants apprehensive about

their seniority vis-a-vis the Rockaway employees.    They met with

Barnes and inquired whether their full seniority would be

restored after the move to Pine Brook.   Barnes offered no

comfort, however, taking the position that the agreement

appellants signed in 1988 worked a permanent forfeiture of their

Carlstadt seniority.

          Although appellants knew that employees from Rockaway

with less company seniority had been placed higher on the Pine

Brook competitive seniority list [app. 122],1 they waited until

December 7, 1990 before grieving [app. 141].   Barnes then brought

     1Appellants assert on appeal that they noticed for the first
time in December 1990 that the Rockaway employees had greater
competitive seniority. They have provided no citation to the
record to support their assertion, hence we will disregard it.
the matter to arbitration.    On March 26, 1991, the Joint Local

Committee of North Jersey held a hearing, at which Barnes merely

explained to the Committee "exactly how everything happened"

regarding the seniority and transfers.    Appellants were present

at the hearing, but did not dispute or add to anything Barnes

said.    Although the grievance was not filed until eleven months

after appellants' January 2, 1990 transfer to Pine Brook, Yellow

never asserted at the hearing that the grievance was untimely.

The Committee ruled against appellants the day of the hearing,

mailing a written confirmation on May 2, 1991.

              On September 25, 1991, appellants filed this hybrid

suit under § 301 of the Labor Management Relations Act, 29 U.S.C.

§ 185.    They alleged that Yellow's action with respect to their

seniority violated the collective bargaining agreement and that

Local 641's failure to prosecute their cause vigorously before

the Joint Local Committee breached the union's duty of fair

representation.

            The district court granted summary judgment to

appellees, holding that appellants' suit was time-barred.    After

concluding that their cause of action accrued on January 2, 1990,

it reasoned that appellants' failure to file either a grievance

or a legal action within six months of that date made their

federal suit untimely.    Relying on Benson v. General Motors

Corp., 716 F.2d 862 (11th Cir. 1983), the court held that the
limitations period begins to run when the employee knew or should

have known of the loss of seniority.   We disagree.




                               II.

          For limitation of actions, a cause accrues when it is

sufficiently ripe that one can maintain suit on it.   Skyberg v.

United Food & Commercial Workers Int'l Union, 5 F.3d 297, 301

(8th Cir. 1993) (quoting Santos v. District Council of United

Bhd. of Carpenters, 619 F.2d 963, 968-69 (2d Cir. 1980)); City of

Philadelphia v. Lead Indus. Ass'n, 994 F.2d 112, 121 (3d Cir.

1993); Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 163 (2d

Cir. 1989).   Accordingly, the six-month limitations period for

this action could have run only if appellants were entitled to

file their suit on January 2, 1990.

          The Benson plaintiffs agreed to cede their existing

seniority in exchange for "preferential consideration" at another

General Motors plant.   They transferred to the other facility,

but received no preferential treatment and were soon laid off.

They then filed a hybrid suit against their employer and their

union.   Because the collective bargaining agreement required that

seniority lists be posted, the Court of Appeals held that the

limitations period started to run as soon as the list was posted

and the employees knew they had lost seniority.   716 F.2d at 864.

Significantly, however, the seniority dispute in Benson was
neither grieved nor arbitrated, because both parties took the

position that the matter was not arbitrable.   See Benson v.

General Motors Corp., 539 F. Supp. 55, 56 (N.D. Ala. 1981),

vacated, 716 F.2d 862 (11th Cir. 1983).

          When a grievance procedure does apply, the employee-

plaintiff is required to at least attempt to exhaust his or her

remedies under that procedure before a § 301 suit can be filed

against the employer.   DelCostello v. International Bhd. of

Teamsters, 462 U.S. 151, 163, 103 S. Ct. 2281, 2290 (1983);

Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S. Ct. 614,

616 (1965).   Here, the union did not arbitrarily refuse to press

appellants' grievance, but pursued it to arbitration, which the

employees lost.   Hence, there was no way for the employees to

know whether they suffered any loss from the union's alleged

breach until the arbitration decision was issued.   It is possible

that appellants could have won the arbitration, even if the

union's zeal fell below the horizon of fair representation owed

appellants.   See Lucas v. Mountain States Tel. & Tel., 909 F.2d

419, 421 (10th Cir. 1990) (per curiam); Ghartey, 869 F.2d at 163.

Here, appellants' claim accrued when the adverse arbitration

decision was reached.   See Childs v. Pennsylvania Fed'n Bhd. of
Maintenance of Way Employees, 831 F.2d 429, 436 (3d Cir. 1987)

(Railway Labor Act); Hayes v. Reynolds Metals Co., 769 F.2d 1520,

1522-23 & n.3 (11th Cir. 1985); cf. Vadino v. A. Valey Eng'rs,

903 F.2d 253, 261 (3d Cir. 1990) ("Allowing the section 301 claim
to be tolled until the unfair representation claim also accrues

is consistent with the congressional goal of resolving labor

disputes in the first instance through the collectively bargained

grievance procedure. . . .").

            In Hayes, bargaining unit employees voted to combine

two job classifications and, as a result, plaintiff was laid off.

He pursued his grievance through the preliminary stages of the

grievance procedure, then later requested the union to take the

matter to arbitration.    Three months after his layoff, the union

voted not to arbitrate plaintiff's grievance.    769 F.2d at 1521.

The district court held that appellant's § 301 suit accrued

either "when the merger of the seniority rosters became effective

and certainly no later than plaintiff's termination[,]" noting

that the seniority lists had been posted on or before his layoff.

Id. at 1522.    The Court of Appeals reversed, holding that the

limitations period began to run on the day the union notified

plaintiff it would not arbitrate.    Id.   The court distinguished

its earlier decision in Benson by pointing out that in Benson

there was no applicable grievance procedure.    Id. at 1523 n.3.

            We conclude that appellants' cause of action accrued no

earlier than March 26, 1991, the date of the adverse arbitration

decision.   Because their complaint was filed on September 25,

1991, it was timely.

            That brings us to the effect appellants' delay in

filing the grievance should have on timeliness.    Initially, we
note that there is some question which contractual limitation

period applies to grievances challenging seniority lists.

Article 5, section 4 of the National Master Freight Agreement

contains a thirty-day limitation, while article 44, section 2

contains only a ten-day limitation.    We will assume, without

deciding, that the ten-day period applied.

          The parties here arbitrated their dispute on the

merits, and neither raised the issue of timeliness before the

arbitrator.   Timeliness, of course, is a procedural issue, and in

an arbitration proceeding procedural issues are for the

arbitrator to decide.   See John Wiley & Sons, Inc. v. Livingston,

376 U.S. 543, 557, 84 S. Ct. 909, 918 (1964); Troy Chem. Corp. v.

Teamsters Union Local No. 408, 37 F.3d 123, 126-27 (3d Cir. 1994)

(applying Association of Flight Attendants v. USAir, Inc., 960

F.2d 345, 349 (3d Cir. 1992)).   Neither party cites, nor have we

found a case specifically dealing with objections based on

timeliness.   Nonetheless, failing to raise a defense before the

arbitrator generally results in a waiver of the defense, the

rationale being that it would be unfair to allow a party to take

a case through arbitration, then repudiate the award based on

defenses not raised in that forum.    See Teamsters Local Union No.
764 v. J.H. Merritt & Co., 770 F.2d 40, 42-43 (3d Cir. 1985);

United Steelworkers Local 1913 v. Union R.R. Co., 648 F.2d 905,

913 (3d Cir. 1981); Amalgamated Meat Cutters Local 195 v. Cross

Bros. Meat Packers, Inc., 518 F.2d 1113, 1121 n.19 (3d Cir.
1975);   Lodge No. 75, Int'l Ass'n of Machinists v. Mooney

Aircraft Inc., 410 F.2d 681, 683 (5th Cir. 1969).

             In Mooney, for example, the collective bargaining

agreement required the arbitrator to reach a decision within

three days of a grievance hearing.      Notwithstanding that, the

arbitrator handed down its decision forty-four days after a

hearing and, the losing party filed a § 301 suit.      The Fifth

Circuit Court of Appeals held that, by not objecting to the delay

immediately after the three-day period, the losing party waived

the issue.    Likewise, if the appellees in this case believed that

appellants' grievance was untimely, it was incumbent upon them to

object in the arbitration, rather than arguing it now.      In sum,

the employees' failure to file a timely grievance has no bearing

on the timeliness of their § 301 suit.

                                 III.

          Because the district court erred when it found

appellants' suit to be time-barred, we will reverse its judgment

and remand the cause for proceedings on the merits.
