*

Honorable John R. Gibson, Senior U.S. Circuit Judge for the

Eighth Circuit, sitting by designa` 

United States Court of Appeals,

Eleventh Circuit.

No. 95-2672.

INTERNATIONAL UNION, UNITED PLANT GUARD WORKERS OF AMERICA and

Local Union No. 127, Plaintiffs-Counter-Defendants-Appellants,

v.

JOHNSON CONTROLS WORLD SERVICES, INC., Defendant-CounterClaimant-Appellee.

Dec. 4, 1996.

Appeal from the United States District Court for the Middle

District of Florida. (No. 94-557-CIV-ORL-22), Anne C. Conway,

Judge.

Before CARNES, Circuit Judge, and FAY and GIBSON*

, Senior Circuit

Judges.

JOHN R. GIBSON, Senior Circuit Judge:

The International Union of the United Plant Guard Workers of

America and its Local Union No. 127 appeal from the district

court's entry of summary judgment against them on their suit to

compel Johnson Controls World Services, Inc. to submit to

arbitration. The district court determined that the union's suit

was time-barred under the six-month statute of limitations borrowed

from the National Labor Relations Act. We reverse.

The union and Johnson Controls are parties to a collective

bargaining agreement covering conditions of employment of security

guards working at Cape Canaveral Air Force Station. Cape Canaveral

is a federal enclave, ceded by the state of Florida to the federal

government in 1955.
 1

The union concedes that two of the three grievances have

been settled and are therefore moot. This opinion only concerns

the surviving grievance, No. 91-SP-19, concerning the use of

sergeants to do electronic security system control monitoring. 

 2Article 22, section (c) of the collective bargaining

agreement stated: "Supervisors normally will not perform the

duties of Security Policemen other than in emergency situations." 

On July 17, 1991 the union filed three grievances 1 alleging

that Johnson Controls was using supervisory personnel to do work

guaranteed to the members of the bargaining unit under the

collective bargaining agreement.2 The union appealed the

grievances to arbitration, in accordance with the provisions in the

collective bargaining agreement. On August 26, 1993 Johnson

Controls notified the union that it denied the grievances and would

not process them further. On May 16, 1994, the union filed suit

under section 301 of the Labor-Management Relations Act, 29 U.S.C.

§ 185 (1994), seeking to compel arbitration of the grievances.

Johnson Controls moved for summary judgment on the ground that

the suit was barred by the six-month statute of limitations

borrowed from section 10 of the National Labor Relations Act, 29

U.S.C. § 160(b) (1994). The district court entered judgment for

Johnson Controls. The court reasoned that since section 301 of the

LMRA had no statute of limitations, the court should borrow state

law in accord with the principles of Reed v. United Transportation

Union, 488 U.S. 319, 109 S.Ct. 621, 102 L.Ed.2d 665 (1989),

DelCostello v. International Brotherhood of Teamsters, 462 U.S.

151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), and United Paperworkers

International v. ITT Rayonier, Inc., 931 F.2d 832 (11th Cir.1991).

The court did not explicitly consider which state it ought to
borrow from, but merely assumed that it should borrow the law

governing the situs of the dispute, Cape Canaveral. Cape

Canaveral, being a federal enclave, has no state law as such,

except to the extent that it incorporated, as its own, Florida law

as it existed at the time Florida ceded the enclave to the United

States. The court therefore arrived at the conclusion that if it

were to apply state law at all, it must be Florida law as it

existed in 1955, the time when the enclave was ceded to the United

States. The analogous limitation period from pre-cession Florida

law was five years. Fla.Stat. ch. 95.11(3) (1955). The court

concluded that a five-year limitation period would contravene the

federal interest in prompt resolution of labor disputes, citing

International Association of Machinists & Aerospace Workers, Local

1688 v. Allied Products Corp., 786 F.2d 1561 (11th Cir.1986).

Consequently, the court decided that it must apply the most

analogous federal statute of limitations, which was the six-month

period from section 10(b) of the N.L.R.A. The union filed the suit

more than six months after Johnson Controls informed the union of

its refusal to arbitrate. Therefore, the court held the suit was

time-barred.

On appeal, the union argues that the pre-cession law of

Florida is not state law. Even though it originated as state law,

it has been incorporated into the federal law of the enclave and is

now federal law. Therefore, the court would not be borrowing state

law, as dictated by Reed, et al., if it borrowed this federal law.

The union argues that to borrow state law, we must look to the

present law of Florida. On the other hand, Johnson Controls argues
that pre-cession Florida law is the relevant state law, that the

district court properly refused to follow it, and that the court

correctly chose the federal six-month statute.

 So, Johnson Controls argues that state law means the law of

the enclave, and the Union argues that state law means the present

law of Florida. Though neither side articulates a theory of how to

select the relevant state law, in effect, the question they pose is

whether we are to apply the limitations law of the forum or that of

the place where the claim arose.

In this circuit we have stated: "Where Congress has provided

no limitations period for a federal claim ... a court must borrow

the applicable limitations period and tolling rules from the state

in which it sits, unless those rules are inconsistent with federal

policy." Hawthorne v. Wells, 761 F.2d 1514, 1515 n. 7 (11th

Cir.1985) (emphasis added). Accord Fullman v. Graddick, 739 F.2d

553, 557 (11th Cir.1984); McGhee v. Ogburn, 707 F.2d 1312, 1313

(11th Cir.1983). In the former Fifth Circuit, the cases sometimes

stated that federal courts borrowed the forum state's law and

sometimes stated that they borrowed the law of the state where the

cause arose, without acknowledging the apparent conflict between

the two rules. Compare Vigman v. Community Nat. Bank & Trust Co.,

635 F.2d 455, 459 (5th Cir.1981) (law of forum); and Beard v.

Stephens, 372 F.2d 685, 688 (5th Cir.1967) (same); with Sewell v.

Grand Lodge, 445 F.2d 545, 549 (5th Cir.1971) (place where claim

arose, but citing Beard v. Stephens, supra, which states opposite

rule), cert. denied, 404 U.S. 1024, 92 S.Ct. 674, 30 L.Ed.2d 674

(1972); and Dantagnan v. I.L.A. Local 1418, 496 F.2d 400, 401 (5th
 3

Most other circuits borrow the law of the forum. See Ceres

Partners v. GEL Associates, 918 F.2d 349, 353 (2d Cir.1990); 

Eichleay Corp. v. International Ass'n of Iron Workers, 944 F.2d

1047, 1062 (3d Cir.1991), cert. dismissed, 503 U.S. 915, 112

S.Ct. 1285, 117 L.Ed.2d 510 (1992); Champion Int'l Corp. v.

United Paperworkers International Union, 779 F.2d 328, 332-34

(6th Cir.1985); Teamsters Local No. 579 v. B & M Transit, Inc.,

882 F.2d 274, 276 (7th Cir.1989); Kansas Pub. Employees

Retirement Sys. v. Reimer & Koger Assoc., Inc., 61 F.3d 608, 611

(8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 915, 133

L.Ed.2d 845 (1996); Forrestal Village, Inc. v. Graham, 551 F.2d

411, 413 (D.C.Cir.1977). There are, however, other views. See

Held v. Manufacturers Hanover Leasing Corp., 912 F.2d 1197, 1202-

03 (10th Cir.1990) (applying choice of law test from Restatement

(Second) of Conflicts of Law). Compare Chung v. Pomona Valley

Community Hosp., 667 F.2d 788, 791 (9th Cir.1982) (apply

limitations law of state with most substantial contacts with

claim), with Felton v. Unisource Corp., 940 F.2d 503, 511 (9th

Cir.1991) (apply limitations law of the forum). 

 4

In Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed.

1602 (1947), the Supreme Court considered federal question cases

which were filed in Ohio and Pennsylvania, respectively, but

which arose in Kentucky. The Court applied the borrowing

statutes of the forum states, Ohio and Pennsylvania, which in

turn required application of Kentucky's statute of limitations. 

The Supreme Court itself has apparently not considered Cope v.

Anderson a clear statement of the law, since in a later case the

Court explicitly reserved the choice of law question. See UAW v.

Hoosier Cardinal Corp., 383 U.S. 696, 705 n. 8, 86 S.Ct. 1107,

1113 n. 8, 16 L.Ed.2d 192 (1966).

The parties did not brief the question, and the union

has not argued that the Florida borrowing statute, Fla.Stat.

ch. 95.10 (1982), would apply and would require the court to

apply Cape Canaveral law after all. Some circuits routinely

apply the forum state's borrowing statute, see, e.g.,

Robertson v. Seidman & Seidman, 609 F.2d 583, 586 (2d

Cir.1979); Burns v. Union Pac. R.R., 564 F.2d 20, 22 (8th

Cir.1977). But in Champion International Corp. v. United

Paperworkers International Union, 779 F.2d 328 (6th

Cir.1985), the Sixth Circuit rejected the idea that Cope

requires application of the forum state's borrowing statute. 

Id. at 332-34. The Sixth Circuit held that federal courts

should instead apply a federal choice of law rule, choosing

the forum state's statute of limitations governing the most

analogous state substantive claim unless it undermines

Cir.1974) (law of place where claim arose, citing Sewell ).3

The Supreme Court has not definitely settled the question of

what state's limitations law is to be borrowed.4

 The choice of law
federal policy or causes undue hardship. Id. at 334. The

Sixth Circuit, however, has limited the holding in Champion

International, see Caproni v. Prudential Securities, Inc.,

15 F.3d 614, 617-18 (6th Cir.1994), deciding that it is

sometimes appropriate to apply the forum state's borrowing

statute. It suffices to say that we need not reach this

difficult question. 

question was arguably decided, if only implicitly, in North Star

Steel Co. v. Thomas, --- U.S. ----, 115 S.Ct. 1927, 132 L.Ed.2d 27

(1995). There, two cases were filed in Pennsylvania; one of the

cases arose in Pennsylvania and one in Georgia. The issue in the

cases was from what source the court should borrow a statute of

limitations for a federal labor statute that did not contain its

own limitations period. The Third Circuit held that state law

applied, though it did not decide which state, since neither

Georgia nor Pennsylvania law would have barred the suit. United

Steelworkers v. Crown Cork & Seal Co., 32 F.3d 53, 60 n. 4 (3d

Cir.1994). The Supreme Court opinion affirmed that state rather

than federal law should be the "lender of first resort" for federal

statutes that have no limitations period. --- U.S. at ----, 115

S.Ct. at 1930. The Supreme Court did not discuss the issue of

whether Georgia or Pennsylvania law should apply to the case that

arose in Georgia, but the Court referred to Pennsylvania law,

without mentioning the possible application of Georgia law. See,

e.g., id. at ---- - ----, 115 S.Ct. at 1930-31. The Court also

acknowledged that its rule could lead to forum shopping:

"[Petitioners] are right of course that the practice of adopting

state statutes of limitations for federal causes of action can

result in different limitations periods in different states for the

same federal action...." Id. at ---- - ----, 115 S.Ct. at 1931-32.
This statement implies that the limitations law would be borrowed

from the forum state, because if the law were borrowed from the

state where the claim arose, the limitations period would not vary

according to where the case was filed.

 Considering the Eleventh Circuit precedent directing us to

look to the law of the forum and the language in North Star which

we take to be consistent with that rule, we conclude that the

district court for the Middle District of Florida must apply the

present law of Florida, the forum state. The district court erred

in applying the law of the federal enclave, which was irrelevant.

Under current Florida law, the most analogous statute of limitation

is the one-year statute for specific performance of contract,

Fla.Stat. ch. 95.11(5)(a). See ITT Rayonier, 931 F.2d at 835-36.

Under the one year statute, the union's suit was timely.

Even if we were to borrow Cape Canaveral law, the relevant

pre-cession Florida statute of limitations was five years,

Fla.Stat. ch. 95.11(3) (1955). The district court declined to

apply the five-year statute because it concluded that a five-year

period would frustrate federal policy favoring speedy resolution of

labor disputes. After rejecting the five-year period, the district

court looked to the six-month federal statute. However, after the

district court's decision, the Supreme Court decided North Star

Steel. There, the Court said that even a six-year statute of

limitations would not frustrate the federal interest in rapid

disposition of labor disputes. --- U.S. at ----, 115 S.Ct. at 1931

(quoting Hoosier Cardinal Corp., 383 U.S. at 707, 86 S.Ct. at

1114). We have some question as to whether the district court's
reasoning survives North Star. If it does not, even if the federal

enclave law applied, the relevant limitations period in Cape

Canaveral would be five years. This case would be timely, whether

we applied the current Florida statute of limitations or the law of

the federal enclave.

 Finally, Johnson Controls contends that the grievance is not

arbitrable because it presents a representation issue that has been

decided by the National Labor Relations Board. The Board decided

two representation proceedings in which the union sought to

represent the sergeants who it claims are doing work guaranteed to

the bargaining unit. First in a bargaining unit clarification

proceeding and then in a proceeding for certification of a separate

bargaining unit, the union sought to represent the sergeants. The

Board denied the clarification petition because the sergeants had

historically been excluded from the bargaining unit and there had

not been recent, substantial changes in their duties and

responsibilities. The Board denied the representation petition

because it found the sergeants to be supervisors. The grievance

does not seek to represent the sergeants, but to keep them from

performing duties of bargaining unit personnel. The grievance

lists as relief requested: "Cease and desist from supervisors

performing bargaining unit work." This issue is distinct

theoretically from that raised in the representation proceedings,

though the two issues are related. See Carey v. Westinghouse Elec.

Corp., 375 U.S. 261, 268-70, 84 S.Ct. 401, 407-08, 11 L.Ed.2d 320

(1964). Though theoretically distinct, it may be that the factual

issues are identical, but Johnson Controls has not demonstrated
that. Therefore, we have no basis for precluding arbitration.

We REVERSE the judgment of the district court.