1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-17-1995

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Precedential or Non-Precedential: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 100.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/100
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 April 17, l995) 

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 

Attorney 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 Eleventh Circuit 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 employeeplaintiff 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.