Then, that was it, the end of it, and I never went farther than that.
Q. Did you ever ask Sonny Hill to take your case to arbitration?
Q. Did you ever ask any other union officer or employee to take your case to arbitration?
Q. When was it that you had this discussion about arbitration with Mr. Thompson?
A. Prior to -- on the phone, I guess, from after I received the grievance. I usually talked to him on the phone.
Q. You mean after you got the denial back?
Q. But was this just a casual mention of arbitration with Thompson? Better yet, I will withdraw the question.
Tell me, to the best of your recollection, what did you say, what did he say?
A. I can't recall.
Q. Did you believe that the union would not take this case to arbitration?
A. I believed they wouldn't, no.
Q. When did you form that belief?
A. Well, after the grievance was denied.
Q. So, you were not waiting for some word from some other union officer about taking your case to arbitration, were you?
A. No. I said before that I was only waiting for Joe Thompson's remarks from other meetings that were going to be held throughout the company.
The last meeting, I can't recall, but like I said, my name was mentioned, but nothing has been done about it.
Q. It was after that that you got back the grievance was denied?
Q. You knew, then, that the union would not take your case to arbitration?
Q. In fact, you never asked them to take it to arbitration, did you?
A. No, I never did. No.
Blaszczyk Deposition at 50-57.
On a motion for summary judgment, the moving party bears the burden of proving that there are no genuine issues of material fact. The non-moving party is entitled to have all inferences viewed in a light most favorable to the non-moving party and doubts as to the existence of genuine issues of fact are to be resolved against the moving party. Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981).
In Del Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983), the Supreme Court had opportunity to decide the applicable statute of limitations in a case where an employee alleges that the employer had breached a provision of a collective bargaining agreement, and that the union had breached its duty of fair representation by mishandling the ensuing grievance - and - arbitration proceedings. This type of case, which the Court has labelled, "a hybrid § 301/fair representation claim," is precisely the claim made by plaintiff. As such, there is no doubt that the six-month limitations period in the National Labor Relations Act is the limitations period applicable to the type of suit filed by plaintiff. Plaintiff, however, contends that the six-month limitations period should not be retroactively applied to him and that even if applied, his suit was timely filed.
In support of his contention that Del Costello should not be applied retroactively, plaintiff cites a number of courts that have considered and rejected the notion that it should be applied retroactively. See McNaughton v. Dillingham, 722 F.2d 1459 (9th Cir. 1984); Edwards v. Teamsters Local Union No. 36, 719 F.2d 1036 (9th Cir. 1983), cert. denied, 465 U.S. 1102, 104 S. Ct. 1599, 80 L. Ed. 2d 130 (1984); Woollett v. Bankers Life Co., 572 F. Supp. 650 (E.D. Mich. 1983); Manley v. Great Lakes Steel Corp., 572 F. Supp. 566 (E.D. Mich. 1983). Plaintiff admits that the Court of Appeals for the Third Circuit, whose decisions I am bound to follow,
has applied Del Costello retroactively, Perez v. Dana Corp., Parish Frame Div., 718 F.2d 581 (3d Cir. 1983), but seeks to distinguish that case. Because the present case is not distinguishable from Perez, I will apply the six-month limitation period established in Del Costello.3
In Perez the Third Circuit analyzed the retroactivity issue in light of the applicable Supreme Court decision, Chevron Oil Co. v. Huson, 404 U.S. 97, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971). Two of the three factors set out in Huson and applied to Del Costello in Perez are binding on this court and need only be supplemented to illustrate why the argument for retroactivity is even stronger here than in Perez.
The court of appeals determined in Perez that Del Costello did not establish a new principle of law by overruling clear past precedent or deciding an issue of first impression. Perez, 718 F.2d at 585-87. Plaintiff's contention that "the limitations period applied uniformly by the United States District Courts in Pennsylvania prior to Del Costello to cases such as Blaszczyk's was the six-year period governing written contracts,"
is plainly incorrect. Not only is it at odds with the Third Circuit's analysis in Perez that the "case law was confused and divided,"
prior to Del Costello, it is also an incorrect statement of the law.
In Jackson v. Temple University of the Commonwealth System of Higher Education, No. 82-3857 (E.D. Pa. November 22, 1982), vacated on other grounds, 721 F.2d 931 (3d Cir. 1983), I had the opportunity to address the question - what was the applicable state statute of limitations when plaintiff's grievance had never been submitted to arbitration? "In this action, choosing the most analogous state statute of limitations is further complicated because the plaintiff's grievance was never taken to arbitration." Jackson, slip op. at 5. After a thorough review of those cases that had considered this precise issue, including some from this district, I stated:
I agree with those courts which have held that where a union refuses to proceed to arbitration, after an adverse decision by a grievance committee, the most analogous state statute of limitations is the period applicable in actions to vacate an arbitration award. This statute may not fit "hand-in-glove" in a section 301 action following an adverse arbitration decision. See Mitchell, supra, 451 U.S. at 64. Nevertheless, the direct effect of the grievance committee decision is as final and binding as an arbitration award, once the union elects not to proceed to arbitration.