Appeal from an order of the United States District Court for the Eastern District of New York, Bramwell, J., dismissing the plaintiff's complaint as time-barred against both the employer and the union.
Oakes, Van Graafeiland and Meskill, Circuit Judges.
In United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 67 L. Ed. 2d 732, 101 S. Ct. 1559 (1981), the Supreme Court was asked to determine the appropriate statute of limitations period in cases where an employee, after an unfavorable arbitration decision, brings a wrongful discharge action against his employer and a fair representation claim against his union, both pursuant to section 301(a) of the Labor Management Relations Act, 1947 (LMRA), 29 U.S.C. § 185(a)(1976). The Mitchell Court found that at least as to the action against the employer, a wrongful discharge claim under the LMRA is analogous to a state action to vacate an arbitration award. Relying on its decision in International Union, United Automobile, Aerospace & Agricultural Implement Workers (UAW), AFL-CIO v. Hoosier Cardinal Corp., 383 U.S. 696, 16 L. Ed. 2d 192, 86 S. Ct. 1107 (1966), the Court concluded that an employee's post-arbitration wrongful discharge claim against the employer under section 301 is subject to the limitations period found in the relevant state arbitration statute.
In the action giving rise to the appeal before us, the United States District Court for the Eastern District of New York, Bramwell, J., granted defendant's Fed. R. Civ. P. 12(b)(6) motion to dismiss the complaint. The court ruled that even though the appellant's discharge and fair representation claims were never arbitrated, it was nonetheless bound by Mitchell to apply the state arbitration limitations period. Judge Bramwell accordingly dismissed the appellant's claims against both the employer and union as time-barred under the ninety day limitations period found in the New York State arbitration statute, N.Y. Civ. Prac. Law § 7511(a) (McKinney 1980). We are asked on appeal first to determine whether the Mitchell precedent should apply to unlawful discharge cases in the absence of an arbitration award, and second, whether Mitchell implicitly decided that fair representation claims against the union must also be governed by the limitations period found in the state arbitration statute.
We find that Mitchell is neither controlling nor persuasive where the employee's discharge claim was never arbitrated. The six month limitations period found in section 10(b) of the National Labor Relations Act (NLRA), 29 U.S.C. § 160(b) (1976), is the more appropriate choice. Because appellant failed to bring her claim within the six month period, we affirm the district court's order dismissing her complaint against the employer, Mount Sinai Services-City Hospital Center at Elmhurst (Mount Sinai). In view of Flowers v. Local 2602 of the United Steelworkers, 671 F.2d 87 (2d Cir.), cert. granted, 459 U.S. 1034, 103 S. Ct. 442, 74 L. Ed. 2d 599 (1982), we must hold that Mitchell does not control in fair representation actions brought against the union. In Flowers we concluded that a fair representation action under section 301(a) of the LMRA is most analogous to a malpractice claim brought under state law. We accordingly ruled that the three year limitations period found in the New York malpractice statute, N.Y. Civ. Prac. Law § 214(6) (McKinney Supp. 1982), governed the dispute. Flowers represents the law of the Circuit and we must follow it. Because appellant commenced her suit within the three-year period, we reverse the district court's order dismissing the complaint as time-barred against the union, District 1199, National Union of Hospital and Health Care Employees (District 1199), and remand to the district court for further proceedings.
For the purposes of deciding the legal questions raised by this pro se appeal, we will assume that the following factual statement is undisputed. Appellant Yolande Assad worked for approximately thirteen years as a laboratory technologist at Mount Sinai. During 1980, Assad was granted a medical leave of absence, effective to July 7, 1980. When Assad failed to report for work by that date the Assistant Director of Personnel at Mount Sinai sent her a telegram indicating that the employer would presume that she had voluntarily resigned unless she reported for work or contacted the hospital by July 24, 1980. That date passed without word from Assad and the hospital sent her a letter stating that its employment records would reflect her voluntary resignation as of July 7, 1980.
At some point later in 1980, Assad informed District 1199 that she wished to contest the employer's decision to terminate her. Assad explained that she was undergoing medical treatment during July of 1980 and had been unable to respond to the hospital's inquiries. Assad indicated that she never intended to resign and that she wished to be reinstated to her former position. The union agreed to intercede on her behalf.
The collective bargaining agreement between District 1199 and Mount Sinai provided for a three-step grievance procedure to resolve disputes, and for binding arbitration if the dispute was not resolved through the grievance process.*fn1 In cases of employee discharge, the agreement stipulated that the parties should proceed immediately to step three, which requires the personnel director or administrator of the employer to render a decision within five business days after the grievance is presented.
On October 9, 1980, a meeting was held to consider Ms. Assad's grievance. In attendance were Assad, a union delegate, a union representative, and Doctors Zilversmit and Gtzan from Mount Sinai. Although no formal written decision was issued after the meeting, the employer apparently informed the union that it would not reinstate Assad. Six days later, on October 15, 1980, District 1199 sent a letter to Mount Sinai stating that: "If this situation isn't rectified immediately and Ms. Assad reinstated, this matter will go to arbitration."
The union ultimately decided to forego arbitration on behalf of Assad, purportedly because her claim lacked substantial merit. There is no showing that the union ever communicated this decision to Assad. Pursuant to the terms of the collective bargaining agreement, the employer's discharge decision became final and binding fifteen business days after the grievance procedure was concluded.
In June of 1981, eight months after her grievance was denied, Assad, through her attorney, commenced an action in the New York State Supreme Court, Queens County. She alleged that Mount Sinai had violated the collective bargaining agreement by discharging her without good cause and that District 1199 had breached its duty of fair representation by failing to represent her interests zealously. The action was removed in July of 1981 to the United States District Court for the Eastern District of New York and was assigned to Judge Bramwell.
In an order dated March 3, 1982, Judge Bramwell ruled that Assad's claims against both the employer and the union were time-barred by the ninety day limitations period found in the New York statute governing arbitration awards, N.Y. Civ. Prac. Law § 7511(a) (McKinney 1980). Assad v. Mount Sinai Hospital, 81 Civ. 2273 (E.D.N.Y. Mar. 5, 1982), reprinted in App. of Appellant at 4. Although the order did not explain the court's reasoning, Judge Bramwell did state in open court on February 19, 1982, that he found "the instant case within the Mitchell holding for purposes of determining ...