Giffin v. United Transportation Union

Opinion

Plaintiff and appellant Harry Giffin appeals from an order of dismissal following the sustaining of a demurrer without leave to amend to his first amended complaint against defendant and respondent United Transportation Union and its officers.

Labeled as a complaint for breach of contract, the action is in substance for breach of a labor union’s duty of good faith representation during grievance proceedings pursuant to a collective bargaining agreement. It alleges that appellant was a bus operator for the Southern California Rapid Transit District (SCRTD) and a member of respondent United Transportation Union, which was organized to represent appellant and other members in collective bargaining with the SCRTD. On or about April 20,1981, SCRTD management informed appellant he would be terminated for alleged failure to report an accident. On or about August 12, 1981, respondent union refused to proceed with plaintiff’s grievance to arbitration pursuant to the

Appellant’s complaint was not filed until April 16, 1985, more than three and a half years after respondent’s refusal to take appellant’s grievance to arbitration. The dispositive question is what state statute of limitations applies to this action where the uniform federal six-month period of limitations provided in DelCostello v. Teamsters (1983) 462 U.S. 151 , 169-171 [ 76 L.Ed.2d 476 , 492-493, 103 S.Ct. 2281 ], does not apply because the employer is a public entity exempt from the National Labor Relations Act. We hold the applicable state statute of limitations is three years for actions on a liability created by statute. (Code Civ. Proc., § 338, subd. 1.) Since appellant’s complaint was filed more than three years after the cause of action arose, we affirm the order of dismissal.

Appellant’s Cause of Action Is for Breach of the Union’s Duty of Fair Representation

Appellant’s complaint is labeled as one for breach of contract, and appellant seeks application of the four-year statute of limitations for actions on a written contract. (Code Civ. Proc., §337, subd. 1.) However, the applicable statute of limitations is determined by the substance or gravamen of the action rather than the form of the pleading. (Edwards v. Fresno Community Hosp. (1974) 38 Cal.App.3d 702 , 704 [ 113 Cal.Rptr. 579 , 3 A.L.R.4th 1209 ].) The allegations of the complaint are that pursuant to a collective bargaining agreement respondent was to represent appellant in grievance proceedings against management of the SCRTD; that on or about August 12, 1981, respondent “refused to proceed with plaintiff’s grievance through arbitration; said refusal was arbitrary and capricious and constituted a breach of contract on the part of defendants, and each of them” in light of the evidence that the alleged accident did not occur.

These allegations obviously attempt to state a cause of action against the union for breaching its duty to appellant to represent him in good faith during grievance proceedings pursuant to a collective bargaining agreement. This is a specific and well-defined liability under both federal and state law (Vaca v. Sipes (1967) 386 U.S. 171 , 176-177 [ 17 L.Ed.2d 842 , 850, 87 S.Ct. 903 ]; Lerma v. D’Arrigo Brothers Co. (1978) 77 Cal.App.3d 836 , 840 [144 Cal.Rtpr. 18]), not an ordinary contract liability. (See Sarro v. Retail Store Employees Union (1984) 155 Cal.App.3d 206 , 214-217 [ 202 Cal.Rptr. 102 ].) Thus, despite appellant’s label of breach of contract, the pertinent question is the statute of limitations applicable to an action against a union for breach of its duty of fair representation.

Respondent urges us to adopt a six-month statute of limitation based on DelCostello v. Teamsters, supra, 462 U.S. 151 , 169-171 [ 76 L.Ed.2d 476 , 492-493]. DelCostello held that in a suit brought in federal court against a union directly or against the employer and the union under section 301 of the National Labor Management Relations Act (id., at p. 164 [76 L.Ed.2d at pp. 488-489]), for breach of the union’s duty of fair representation under the National Labor Relations Act, federal courts should borrow the six-month period of limitation from section 10(b) of the National Labor Relations Act ( 29 U.S.C. § 160 (b)), the period for filing a complaint of unfair labor practice before the National Labor Relations Board. (DelCostello, supra, 462 U.S. at pp. 169-171 [76 L.Ed.2d at pp. 492-493].)

State and federal courts have concurrent jurisdiction with the National Labor Relations Board in suits alleging that a union has breached its duty of fair representation under the federal labor law. (Vaca v. Sipes, supra, 386 U.S. 171 , 176-188 [ 17 L.Ed.2d 842 , 850-857].) However, in such cases state courts must apply federal substantive labor law. (O’Malley v. Wilshire Oil Co. (1963) 59 Cal.2d 482 , 486 [ 30 Cal.Rptr. 452 , 381 P.2d 188 ]; Shaw v. Metro-Goldwyn-Mayer, Inc. (1974) 37 Cal.App.3d 587 , 597, fn. 7 [ 113 Cal.Rptr. 617 ].) One California case has since concluded that in an action brought in state court to enforce a union’s duty of fair representation under federal law, DelCostello’s six-month period of limitation would likewise apply. (Rodriguez v. Southern Cal. Dist. Council of Laborers (1984) 160 Cal.App.3d 956 , 958, 960 [ 207 Cal.Rptr. 75 ].)

However, federal labor law and DelCostello do not apply to this case. Congress has specifically exempted states and political subdivisions thereof from the definition of employers subject to the National Labor Relations Act and National Labor Management Relations Act. ( 29 U.S.C. §§ 152 (2), 142(3); NLRB v. Natural Gas Utility District (1971) 402 U.S. 600 , 601-603 [ 29 L.Ed.2d 206 , 208-209, 91 S.Ct. 1746 ]; Crilly v. Southeastern Pa. Transp. Authority (3d Cir. 1976) 529 F.2d 1355 , 1358-1363; Ayres v. International Broth. of Elec. Workers (9th Cir. 1982) 666 F.2d 441 , 443.) Since the statutory definition of employee depends upon the definition of employer ( 29 U.S.C. § 152 (3)), an employee of an exempt employer has no federal cause of action against a union for breach of duty of fair representation. (Crilly v. Southeastern Pa. Transp. Authority, supra, 529 F.2d at pp. 1357, fn. 5, 1361, fn. 22.)

Although acknowledging the federally exempt nature of the employment in this case, respondent nevertheless urges that we adopt the DelCostello rule as good policy and to secure uniformity of treatment of public and private employees. This we cannot do. Having determined that federal labor law is inapplicable, and that appellant’s cause of action arises under state law, we have no discretion to adopt the federal statute of limitations. We have no choice but to determine the applicable state statute of limitations. Although we have discretion to consider federal law as persuasive authority in interpreting state substantive labor law (see Holayter v. Smith (1972) 29 Cal.App.3d 326 , 335 [ 104 Cal.Rptr. 745 ]), we do not have authority to create a statute of limitation. Enactment of statutes of limitations is a legislative function. We are limited to determining the existing state statute of limitations applicable to this cause of action.

The Appropriate State Statute of Limitations Is Three Years for a Liability Created by Statute

A union’s duty of good faith representation of its members in collective bargaining and in the grievance mechanisms of a collective bargaining agreement is a statutory duty. As explained in Vaca v. Sipes, supra, 386 U.S. at page 177 [17 L.Ed.2d at p. 850], involving the federal statute, “[T]he exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Similarly, in DelCostello v. Teamsters, supra, 462 U.S. at page 164 and footnote 14 [76 L.Ed.2d at p. 489], the court stated, “The suit against the union is one for breach of the union’s duty of fair representation, which is implied under the scheme of the National Labor Relations Act.14" Footnote 14 provides: “The duty of fair representation exists because it is the policy of the National Labor Relations Act to allow a single labor organization to represent collectively the interests of all employees within a unit, thereby depriving indi vid