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November 18, 1981

Robert WALSH, Plaintiff,
BOSS LINCO LINES, INC., International Brotherhood of Teamsters, Chauffeurs,Warehousemen & Helpers of America, and Local 641, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Defendants

The opinion of the court was delivered by: BIUNNO

Plaintiff filed suit against his employer, Boss Linco Lines and his union, International Brotherhood of Teamsters and his local, Local 641, on April 14, 1978, approximately two years after the arbitrator upheld termination of his employment.

Plaintiff claims the suit was timely filed, applying the six-year statute of limitations appropriate to contract actions N.J.S.A. 2A:14-1. Defendants claim the suit is more appropriately characterized as a review of the arbitration award and should have been filed within the ninety-day limitations set by N.J.S.A. 2A:24-7.

 This question was recently addressed by both the Third Circuit and the Supreme Court. In United Parcel Service v. Mitchell, 451 U.S. 56, 101 S. Ct. 1559, 67 L. Ed. 2d 732 (1981), the court held that a suit under § 301(a) based on the breach of the duty of fair representation is more a creature of "labor law" than contract law:

"Thus respondent's characterization of his action against the employer as one for "breach of contract' ignores the significance of the fact that it was brought in the District Court pursuant to § 301(a) of the LMRA and that the indispensable predicate for such an action is not a showing under traditional contract law that the discharge was a breach of the collective-bargaining agreement, but instead a demonstration that the union breached its duty of fair representation. Since the conclusion of the Joint Panel was under the collective-bargaining agreement, "binding on all parties', respondent was required in some way to show that the Union's duty to represent him fairly at the arbitration had been breached before he was entitled to reach the merits of his contract claim. This, in our view, makes the suit more analogous to an action to vacate an arbitration award than to straight contract action." 451 U.S. at 62, 101 S. Ct. at 1563.

 The Third Circuit opinion reached the same conclusion on facts strikingly similar to the case at bar. In Liotta v. National Forge, 629 F.2d 903 (CA3, 1980) the court held that a complaint alleging that the employee "was unfairly represented before, during and after arbitration by the attorney for the International Union" when fairly read demonstrated that he sought to vacate the arbitrators award. Idem. at 905.

 Plaintiff claims that both Liotta and United Parcel are inapplicable to the case sub judice because this is an action against the union and does not seek reinstatement or restitution of seniority. In reliance on this position plaintiff argues that success here will not have the same effect as vacation of the arbitrator's award. In United Parcel the employee sought reinstatement and backpay and only the employer petitioned the Court for certiorari. Liotta, too, was a suit against the employer alone.

 However, plaintiff's arguments are misplaced. The Supreme Court makes clear that since both sides are bound by the arbitration an employee must show the breach of duty by the Union before the court can look behind the arbitration to the merits of his claim of wrongful discharge under the collective bargaining agreement.

 In Liotta, the court does not discuss what remedy the employee was seeking when he filed suit, however the court there said:

"... the fact that Liotta alleges that the arbitration award is invalid due to the Unions breach of its duty of fair representation does not change the limitations period because the suit here is against the Company and not the Union."

 It is the nature of the cause of action, not the identity of the defendant which controls the choice of limitation statutes. n* Walsh cannot challenge his termination under the contract unless he first vacates the arbitrator's decision. If he is successful the fact that he seeks damages rather than reinstatement will not alter the nature of his challenge.

 Based upon the two cases cited the court concludes that Walsh's claim under § 301 is time barred and summary judgment is appropriate.

 The court also finds no breach of duty by the Union as a separate and independent reason for granting defendant's motion for summary judgment.

 The duty owed by the union to the employees is the duty to represent their interests in good faith, Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967). To show a violation of that duty the plaintiff must show that the actions taken by the Union had a bad faith motive. Medlin v. Boeing Vertol, 620 F.2d 957 (CA3, 1980).

 Here, plaintiffs allege that the breach of duty resulted from the failure of the Union attorney to question him concerning earlier incidents of mishandling, one of which had resulted in a discharge later bargained down to a four-day suspension. There is no ...

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