On Appeal form the United States Disrict Court for the Western District of Pennsylvania
Gibbons and Sloviter, Circuit Judges and Bissell, District Judge*fn*
This appeal requires that we determine whether a uniform federal statute of limitations applies to claims alleging a breach of the duty of fair representation ("DFR") by a union for failure to bring a grievance to the National Railroad Adjustment Board under the Railway Labor Act, 45 U.S.C. §§ 151-188 (1976). If a federal limitation period applies, we must decide what that period shall be. The issue appears to be one of first impression in the courts of appeals since the Supreme Court's decision in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983), holding that a uniform six-month limitation period applies to DFR claims under the National Labor Relations Act.
Appellant Robert Sisco was employed by the Renova Division of the Pennsylvania Railroad Co. between 1956 and 1957, during which time, he alleges, he acquired seniority rights under a collective bargaining agreement with a predecessor of the United Transportation Union ("UTU"). In 1963 Sisco resumed work with the Railroad's Buffalo Division, where he worked until January of 1971, when the company laid him off. On January 26, 1971, the Penn Central Transportation Co., successor to Pennsylvania Railroad, recalled Sisco to service in Buffalo. Sisco declined to return to Buffalo, and on February 8, 1971, executed a letter purporting to forfeit his seniority with the Buffalo Division and to claim seniority with the Renova Division. On March 4, 1971, Penn Central asserted that by declining to return to Buffalo, Sisco forfeited all seniority rights, and terminated his employment. Penn Central and UTU exchanged further correspondence later in March of 1971 reasserting their opposing positions on the forfeiture of Sisco's seniority rights.
On March 9, 1971, UTU protested Sisco's dismissal. Thereafter, neither Sisco nor UTU took any action on the grievance until June of 1980, when Sisco renewed his claim for seniority accumulated with Renova. Penn Central's successor, the Consolidated Rail Corp. ("Conrail"), responded, as Penn Central had in 1971, that Sisco had forfeited his seniority by refusing to return to Buffalo. There the matter rested until November of 1980, when UTU requested that Conrail restore Sisco's Renova Division seniority. On February 5, 1981, Conrail notified UTU that Sisco's case had been discussed at a "System Monthly Meeting" in January, and that its position remained unchanged. Although UTU responded in MArch of 1981 that Conrail's position was "unacceptable" and that it anticipated "presenting this case for further handling to a higher tribunal," the union never did so. In particular, UTU did not submit the dispute for adjudication by the National Railroad Adjustment Board ("NRAB" or "the Board").
On May 19, 1983, Sisco sued Conrail and UTU seeking a declaration of his right to seniority with Renova. Although the basis for Sisco's cause of action against UTU as set forth in the complaint is somewhat opaque, we read it as predicated on a breach of the duty of fair representation. Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 47 L. Ed. 2d 231, 96 S. Ct. 1048 (1975).Both UTU and Conrail moved to dismiss on the ground that the action was barred by Sisco's failure to exhaust administrative remedies and on statute-of-limitations grounds. Without deciding on the appropriate limitation period, the district court dismissed the action against both defendants on July 29, 1983, for failure to comply with "the applicable statute of limitations." Sisco now appeals.
Sisco's claim against Conrail gives us little pause. This action arises out of the interpretation and application of the collective bargaining agreement between Conrail and UTU. Such actions are termed "minor disputes." Elgin, Joliet & E. Ry v. Burley, 325 U.S. 711, 722-24, 89 L. Ed. 1886, 65 S. Ct. 1282 (1945). Section 3 of the Railway Labor Act ("RLA"), 45 U.S.C. § 153 First (i) (1976), provides for administrative procedures for the adjudication of minor disputes, including their submission to an appropriate division of the NRAB. The Supreme Court has held that exhaustion of these procedures is generally required under the Act. Andrews v. Louisville & N.R.R., 406 U.S. 320, 322, 32 L. Ed. 2d 95, 92 S. Ct. 1562 (1972). Three exceptions to the exhaustion requirement in actions against employers calling for the resolution of minor disputes have been recognized: (1) when the employer repudiates the private grievance machinery; (2) when resort to administrative remedies would be futile; and (3) when DRF claims are asserted against both the employer and the union. See Czosek v. O'Mara, 397 U.S. 25, 29-30, 25 L. Ed. 2d 21, 90 S. Ct. 770 (1970); Glover v. St. Louis-S.F. Ry, 393 U.S. 324, 329-31, 89 S. Ct. 548, 21 L. Ed. 2d 519 (1969); Goclowski v. Penn Central Transp. Co., 571 F.2d 747, 758-60 (3d Cir. 1977); Schum v. South Buffalo Ry, 496 F.2d 328, 330 (2d Cir. 1974). No allegations are made that Conrail repudiated the private grievance machinery or that resort to administrative remedies would be futile. Neither of the first two exceptions therefore applies. In addressing the third exception, the Supreme Court has held that an employer may be joined in a DFR action against the union if facts are alleged tying the employer to the events complained of. The Court has left open the question whether the employer may also be joined if no such facts are alleged but the presence of the employer is necessary for complete relief. Czosek, 397 U.S. at 30. No facts are alleged tying Conrail to UTU's failure to process Sisco's grievance. Moreover, no allegation is made in this declaratory judgment action that Conrail's presence is necessary for complete relief. Thus, the only plausible claim against Conrail is a minor dispute, over which the NRAB has exclusive jurisdiction.*fn1 See Union Pacific R.R. v. Sheehan, 439 U.S. 89, 94, 58 L. Ed. 2d 354, 99 S. Ct. 399 (1978) (per curiam); Andrews v. Louisville & N.R.R., 406 U.S. 320, 321-26, 32 L. Ed. 2d 95, 92 S. Ct. 1562 (1972); Gunther v. San Diego & A.E. Ry, 382 U.S. 257, 265, 15 L. Ed. 2d 308, 86 S. Ct. 368 (1965). Accordingly, the district court lacked subject matter jurisdiction over Sisco's claim against Conrail.
The claim against UTU invites more lengthy consideration. Any failure to exhaust administrative remedies would not bar a duty-of-fair-representation claim against the union. DelCostello, 103 S. Ct. at 2290; Hines, 424 U.S. at 567; Czosek, 397 U.S. at 27-28; Vaca, 386 U.S. at 185. We must therefore decide whether the claim is barred by the applicable statute of limitations. Sisco maintains that his grievance was not finally rejected until March 26, 1981, when UTU notified Conrail that its decision was "unacceptable." Moreover, Sisco argues, because the applicable limitation period in this case is the six-year Pennsylvania statute of limitation governing actions on a contract, the action is not time-barred. Conrail and UTU dispute the applicability of the Pennsylvania statute, maintaining that the six-month limitation period applicable under the National Labor Relations Act, 29 U.S.C. § 160(b) (1976), applies. Alternatively, Conrail argues, the two-year limitation period for enforcement of NRAB awards in section 3 of the RLA, 45 U.S.C. § 153 First (r) (1976), governs. Under either limitation period, the action would be time-barred even if it did not accrue until March of 1981.
Although Sisco's cause of action arguably accrued in 1971, and may therefore be barred by any applicable limitation period, we read the complaint on this motion to dismiss in the light most favorable to Sisco.Therefore, we assume arguendo that the cause of action did not accrue until March of 1981, and reach the question ...