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Patterson v. Matanuska Maid et al (8/5/94), 880 P 2d 1038
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
THE SUPREME COURT OF THE STATE OF ALASKA
WILLIAM L. PATTERSON, )
) Supreme Court No. S-4125
) Superior Court No.
v. ) 3AN-88-1093 CI
STATE OF ALASKA, DEPARTMENT OF) O P I N I O N
AGRICULTURE, Individually and )
Severally; MATANUSKA MAID, ) [No. 4108 - August 5, 1994]
INC., Individually and )
Severally; and its agents )
JOHN SEAWELL, RON WILDE, )
STEVE BEVINS and JOE )
VAN TREECK, Individually )
and Severally, )
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Karen L. Hunt, Judge.
Appearances: A. Lee Petersen, Law
Offices of A. Lee Petersen, P.C., Anchorage,
for Appellant. Parry Grover, James H.
Juliussen, Davis Wright Tremaine, Anchorage,
for Appellees Matanuska Maid, John Seawell,
Ron Wilde, Steven Bevins, and Joe Van Treeck.
Kevin Saxby, Assistant Attorney General,
Anchorage, Charles E. Cole, Attorney General,
Juneau, for Appellee State of Alaska.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
[Burke, Justice, not participating.*]
William Patterson initially sued Matanuska Maid and its
agents (Mat-Maid) for defamation. Patterson then filed a second
lawsuit against the State of Alaska, Department of Agriculture
(State) and Mat-Maid for wrongful termination. Patterson now
appeals from the superior court's grant of summary judgment in
favor of the State and Mat-Maid on both claims.
II. FACTS AND PROCEEDINGS
Patterson had been employed by Mat-Maid for seven and
one-half years, during which time the company came under new
management. Mat-Maid had experienced financial difficulties, and
the federal bankruptcy court ordered reorganization. The
bankruptcy court authorized the State to operate the company, and
a new managing agent, John Seawell, was appointed in November
Patterson was involved in an accident with a company
truck in June 1985. He was reprimanded, and a corrective action
report was placed in his file. This incident, coupled with the
change in management and Patterson's problems associated with
post-traumatic stress disorder,1 appear to have triggered a
series of absences from work, customer complaints about
Patterson, and reprimands regarding his performance of routine
duties. Mat-Maid took no formal disciplinary action against
Patterson for any of these reported incidents.
Starting in April 1986, a collective bargaining
agreement between Mat-Maid and Teamsters Local 959 controlled
Patterson's terms of employment.2 The agreement required "just
cause"for termination of employment and also contained mandatory
grievance and arbitration procedures.3
On February 6, 1986, Steve Bevins, Patterson's
immediate supervisor, wrote a letter to the secretary-treasurer
of Local 959, Robert J. Sinnett, asserting misconduct by
Patterson. Bevins alleged that Patterson tried to poison him and
that Patterson was calling his home making obscene remarks to his
spouse. The letter also said that Patterson made obscene calls
to other employees, and that Bevins was concerned about
Patterson's stability and performance. Essentially, the letter
asked Local 959 to intervene and attempt to straighten out the
situation, and stated that if problems with Patterson's behavior
continued, he would be fired.
Patterson was subsequently involved in a second
automobile accident on April 30, 1986. At the time of the
accident Patterson had detoured without permission from his
delivery route. He drove to the Teamsters Building in an attempt
to gain Sinnett's permission to attend a meeting between Local
959 and Mat-Maid. As he left the parking lot a pick-up truck
collided with the rear of his delivery truck. Patterson was
terminated for cause that same day.
Patterson subsequently filed a termination grievance,
which Local 959 took to arbitration on his behalf. An
arbitration hearing was held and on July 2, 1986, the arbitrator
rendered a decision and award in favor of Mat-Maid. Neither
Patterson nor Local 959 appealed from the arbitration decision.
On February 5, 1988, Patterson filed a pro se tort
action for defamation against Mat-Maid. On May 2, 1988,
Patterson filed a second lawsuit for wrongful termination against
Mat-Maid, Local 959 and its officers, and the arbitrator. Both
actions were based on the conduct of Mat-Maid and Local 959
during Patterson's employment and the subsequent grievance
proceedings. According to Patterson's complaint, the arbitrator
"admitt[ed] unsubstantiated, irrelevant, and grossly hearsay
evidence," sustained Patterson's termination on grounds other
than those charged, "overstepp[ed] his bounds,"and "ignor[ed]
his duty as an impartial judge." The two cases were subsequently
consolidated by superior court order. On February 6, 1989,
Patterson filed a document titled "Addition to Plaintiff's List
of Defendants in Above Mentioned Cases,"in which for the first
time he named the State as a defendant in the now consolidated
lawsuits. The State and Mat-Maid thereafter filed separate
summary judgment motions.
The superior court granted summary judgment in favor of
the State in May 1989, on the grounds that Patterson had not
named the State as a party until after the statute of limitations
for wrongful discharge and defamation had run. The superior
court also held that Patterson's claim against the State did not
relate back to the date of his original complaints, see Alaska R.
Civ. P. 15(c), because he was not mistaken as to the identity of
the proper party.4
Without comment, the superior court granted summary
judgment in favor of Mat-Maid in June 1989. The court entered
final judgment in favor of Mat-Maid on August 10, 1989. Now
represented by counsel, Patterson appeals from the grants of
summary judgment to the State and Mat-Maid.5
A. Standard of Review
"When reviewing an appeal from summary judgment,
we determine whether there was a genuine issue of
material fact before the trial court, and whether the
moving party was entitled to judgment on the law
applicable to the established facts." Crissey v.
Alaska USA Fed. Credit Union, 811 P.2d 1057, 1059
(Alaska 1991). B. Patterson's Wrongful
Termination Claim and the Applicable Period of
An arbitrator's decision can only be challenged in two
ways: (1) collaterally in an action alleging breach of contract
against an employer and breach of the duty of fair representation
against a union; or (2) directly through an action to vacate the
award. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570
(1976); see also Sine v. Local No. 992 Int'l Bhd. of Teamsters,
644 F.2d 997 (4th Cir.) (addressing and analyzing both employee's
direct challenge to arbitrator's decision and employee's claim
for union's breach of duty), cert. denied, 454 U.S. 965 (1981).
We turn first to the issues pertaining to Patterson's collateral
attack on the arbitrator's decision.
1. The Applicable Limitations Period for
301 Hybrid Claims
Patterson attempts to characterize his May 2, 1988
wrongful termination suit as a hybrid action that federal law
authorizes when a labor union breaches its duty to fairly
represent an employee in arbitration proceedings. See
DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 164-
65 (1983). Brought under 301 of the Labor Management Relations
Act, 29 U.S.C. 185,6 this action is both a suit against the
employer for breach of a collective bargaining agreement, and a
suit against the union for breach of the duty of fair representa
tion. DelCostello, 462 U.S. at 164-65; see also Vaca v. Sipes,
386 U.S. 171, 186-87 (1967). State courts have concurrent
jurisdiction to hear a collective bargaining suit presenting
301 hybrid claims. Vaca, 386 U.S. at 186-87. See generally John
P. Ludington, Annotation, State Court Jurisdiction as Pre-empted
by National Labor Relations Act as Amended (29 U.S.C.S. 141 et
seq.)--Supreme Court Cases, 75 L. Ed. 2d 988, 1012-13 (1985)
(discussing lack of pre-emption in 301 cases). However, state
courts must apply federal substantive law in adjudicating 301
actions.7 We conclude that Patterson's action is a 301 action
even though he seeks to vindicate "uniquely personal" rights
related to his claim for wrongful discharge. See Hines, 424 U.S.
As a threshold issue, both Mat-Maid and the State
contend that Patterson raises 301 claims for the first time on
appeal and that this court should decline to hear Patterson's
arguments. The record indicates that Patterson indeed failed to
make a 301 argument to the superior court.
The State and Mat-Maid presented separate defenses
before the superior court, and do not present a common defense on
appeal. In the proceedings below, the State responded to
Patterson's wrongful discharge and defamation claims without
discussing any aspect of federal labor law. However, in its
memorandum in support of its summary judgment motion, Mat-Maid
raised several arguments concerning the applicability of 301 to
Patterson's claims. Thus 301 issues were before the superior
The statute of limitations for hybrid 301 claims is
six months. DelCostello, 462 U.S. at 170-72.9 However, the
statute of limitations begins to run not on the date of the
arbitrator's decision but on the date that the employee learns of
the arbitrator's decision. Galindo v. Stoody Co., 793 F.2d 1502,
1509 (9th Cir. 1986).10 Patterson contends that Mat-Maid never
established in the record the exact date on which he became aware
of the decision, and that thus a genuine issue of material fact
exists that precludes summary judgment.
Patterson, however, does not produce evidence that
establishes a specific date from which the limitation period
should run.11 Moreover, contrary to Patterson's allegations, Mat-
Maid in fact specified a date when the limitations period started
to run. In its memorandum in support of its summary judgment
motion, Mat-Maid contended that the statute of limitations
started to run no later than July 2, 1986, the date of the
arbitrator's decision. Further, the record indicates that
Patterson knew or should have known of the arbitrator's decision
no later than July 21, 1986. On July 21, 1986 Mat-Maid appealed
a decision by an Employment Security Division hearing officer
that Patterson was entitled to unemployment compensation from May
4, 1986. The Commissioner of Labor based his decision only on
the evidence presented to the hearing officer. That evidence
included the arbitrator's award upholding Patterson's discharge.
Because Patterson participated in that unemployment compensation
proceeding, he must have known of the arbitrator's decision by
the time of Mat-Maid's appeal on July 21, 1986. Furthermore,
Patterson's counsel "assumes"that Patterson may have learned of
the arbitrator's decision on or about July 7, 1986.
Patterson filed his complaint for defamation on
February 5, 1988 and his wrongful termination claim May 2, 1988,
both over one and one-half years after the July 2, 1986
arbitration award. We therefore conclude that Patterson's 301
suit for wrongful termination is time barred, since it was not
brought within six months of the time Patterson knew or should
have learned of the arbitrator's July 2, 1986 decision.
Patterson also claims that the applicable limitation
period should have been equitably tolled while he pursued quasi-
judicial relief. Patterson filed a complaint with the U.S.
Department of Labor on January 16, 1987. Patterson contends that
if he learned of the arbitrator's decision on or around July 7,
1986 and then filed his complaint with the Department of Labor
within six months of that date, then a genuine issue of fact
exists as to whether the applicable limitations period was
In countering Patterson's argument, Mat-Maid relies on
Harris v. Alumax Mill Products, Inc., 897 F.2d 400, 404 (9th
Cir.), cert. denied, 498 U.S. 835 (1990), where the court cited
authority to the effect that an employee's 301 claim is not
tolled by virtue of the filing of a worker's compensation claim.
The Ninth Circuit concluded "that to allow tolling when the
filing of an NLRB claim was merely optional would 'frustrate the
national policy of prompt resolution of labor disputes.'" Id.
(quoting Conley v. International Bhd. of Elec. Workers, 810 F.2d
913, 916 (9th Cir. 1987)).
The Harris court stated that "'[e]quitable tolling is
most appropriate when the plaintiff is required to avail himself
of an alternate course of action as a precondition to filing
suit.'" Id. (quoting Conley, 810 F.2d at 916). Additionally,
Harris relies on the reasoning of the U.S. Supreme Court
regarding the tolling of a statute of limitations by the filing
of an optional claim, stating that "[t]he Court has made it clear
that it is reluctant to invoke tolling where a plaintiff is tardy
in pursuing a parallel avenue of relief." Id. (citing
International Union of Elec., Radio, & Mach. Workers, Local 790
v. Robbins & Myers, Inc., 429 U.S. 229, 236-40 (1976)). We
conclude that Patterson's filing of a claim with the U.S.
Department of Labor was not a precondition to the filing of his
301 suit against Mat-Maid, and that the applicable six-month
limitation period was not tolled by the filing of that claim.12
2. Applicable Limitations Period for a
Direct Attack on the Arbitrator's July 2, 1986
Because his suit concerns the alleged violation of a
contract between an employer and a labor organization,
Patterson's direct challenge to the arbitrator's decision, like
his claims against Mat-Maid and Local 959, falls under 301, and
state courts thus must apply federal law. See United
Steelworkers of Amer. v. Northwest Steel Rolling Mills, Inc., 324
F.2d 469, 481 & n.2 (9th Cir. 1963) (addressing action to enforce
arbitration award); Safeway Stores v. Brotherhood of Teamsters
Local No. 70, 147 Cal. Rptr. 835, 838 (Cal. App. 1978)
(addressing action to vacate arbitration award). Thus as a
threshold issue we must address the limitations period that
applies to such a direct attack.
If Congress does not supply an express statute of
limitations regarding enforcement of a federal cause of action,
courts must first look to state law for an analogous rule of
timeliness. Reed v. United Transp. Union, 488 U.S. 319, 323
(1989); Posadas de Puerto Rico Assocs., Inc. v. Asociacion de
Empleados de Casino de Puerto Rico, 873 F.2d 479, 480 (1st Cir.
1989). However, a narrow exception to this rule exists where
adoption of a state statute of limitations would frustrate or
hinder the carrying out of federal policy. Reed, 488 U.S. at
324; Posadas, 873 F.2d at 480. DelCostello gives a two-factor
test for determining when the exception applies:
[W]hen a rule from elsewhere in federal
law clearly provides a closer analogy than
available state statutes, and when the
federal policies at stake and the
practicalities of litigation make that rule a
significantly more appropriate vehicle for
interstitial lawmaking, we have not hesitated
to turn away from state law.
462 U.S. at 172; accord Reed, 488 U.S. at 324.
Applying such an analysis, the DelCostello court
concluded that a six-month limitations period would be
appropriate as to both union and employer in hybrid 301 actions
involving a union's breach of the duty of fair representation.13
462 U.S. at 155, 169-70. The Court contrasted the employee's
claim with an action to vacate an arbitration award in a
The main difference is that a party to
commercial arbitration will ordinarily be
represented by counsel or, at least, will
have some experience in matters of commercial
dealings and contract negotiation. Moreover,
an action to vacate a commercial arbitral
award will rarely raise any issues not
already presented and contested in the
arbitration proceeding itself. In the labor
setting, by contrast, the employee will often
be unsophisticated in collective-bargaining
matters, and he will almost always be
represented solely by the union. He is
called upon, within the limitations period,
to evaluate the adequacy of the union's
representation, to retain counsel, to
investigate substantial matters that were not
at issue in the arbitration proceeding, and
to frame his suit. Yet state arbitration
statutes typically provide very short times
in which to sue for vacation of arbitration
Id. at 165-66.14
However, Patterson's case presents a situation
unanticipated in DelCostello, because here the state limitations
period for challenging the arbitrator's award is potentially far
longer than the six-month period borrowed in DelCostello. Alaska
statutory law applies a ninety-day limitations period for a party
to apply to the superior court to vacate an arbitration award.
See AS 09.43.120(c). However, AS 09.43.010-.180 will not apply
to a labor-management contract unless the contract expressly
incorporates these provisions or another statute provides for
their application. AS 09.43.010. Because the contract between
Mat-Maid and Local 959 contains no provision directing the
application of AS 09.43.010-.180, a ninety-day limitations period
is inapplicable. See, e.g., IBEW, Local Union 1547 v. City of
Ketchikan, 805 P.2d 340, 342 (Alaska 1991); State v. Public
Safety Employees Ass'n, 798 P.2d 1281, 1284-85 (Alaska 1990). We
have consistently urged legislative action on this matter,
because no time limit exists at common law for challenges to an
arbitration award. See IBEW, Local Union 1547, 805 P.2d at 342
n.5; Public Safety Employees Ass'n, 798 P.2d at 1285 n.7.
However, the legislature has not yet responded.
Patterson's appeal presents a less difficult question.
We must decide not the appropriate state limitations period for
his action, but rather whether to apply a state limitations
period or federal one. Our determination turns upon our long-
standing view that "the parties to an agreement reached through
arbitration should be able to proceed to implement the agreement
without worry that it is subject to challenge months or years in
the future,"and that "[f]inality is an important consideration"
in review of an arbitrator's decision. Public Safety Employees
Ass'n, 798 P.2d at 1285 n.7; cf. City of Fairbanks Mun. Util.
Sys. v. Lees, 705 P.2d 457, 459-60 (Alaska 1985) (holding that
courts do not review the merits of an issue submitted to
arbitration, because "arbitration should be a final and binding
means of dispute resolution, not a mere prelude to litigation").
We also note that where an employee's 301 challenge to an
arbitrator's decision required a choice between a state's ninety-
day limitations period for challenges to arbitrators' decisions
and the same state's six-year period for contract claims, the
U.S. Supreme Court selected the shorter period, in part on the
grounds that the system of industrial self-government, "with its
heavy emphasis on grievance, arbitration, and the 'law of the
shop,' could easily become unworkable if a decision . . . could
suddenly be called into question as much as six years later."
United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 58-59, 64
Taking the DelCostello and Mitchell decisions together,
we hold that the statute of limitations for directly attacking
the arbitrator's decision is the six-month period under federal
law for hybrid 301 claims. Patterson did not file his suit
against the arbitrator's July 1986 award until 1988, well in
excess of the six-month limitations period. We therefore
conclude that Patterson failed to make timely his direct attack
on the award.
B. Patterson's Defamation Claim
Patterson argues that there are genuine issues of
material fact regarding an agreement not to re-publish Bevins'
February 6, 1986 letter to Sinnett. Mat-Maid responds that the
publication of the allegedly defamatory letter was privileged and
that the privilege constitutes a complete defense.16
The Ninth Circuit has held that statements made by
parties during the course of grievance proceedings conducted
pursuant to the provisions of a collective bargaining agreement
that is subject to the Labor Management Relations Act are
absolutely privileged, as long as the statements are not
published to individuals lacking legitimate interests in them:
Federal labor policy promotes the
collective bargaining process as a means of
stabilizing the relationship between
employers and employees. It is "an effort to
erect a system of industrial self-
government." United Steelworkers of America
v. Warrior & Gulf Navigation Co., 363 U.S.
574, 580, 80 S.Ct. 1347, 1351, 4 L.Ed.2d 1409
(1960). Grievance procedures established by
the [collective bargaining agreement] are
crucial to maintaining that system. "[T]he
grievance machinery under a collective
bargaining agreement is at the very heart of
the system of industrial self-
government. . . . The processing of disputes
through [that] machinery is actually a
vehicle by which meaning and content are
given to the collective bargaining
agreement."Id. at 581, 80 S.Ct. at 1352.
To allow state defamation claims
based on statements made in grievance
proceedings would weaken the grievance system
as a means of industrial self-government.
Hyles v. Mensing, 849 F.2d 1213, 1217 (9th Cir. 1988).
Patterson asserted in his complaints that Bevins'
February 6, 1986 letter was published on three occasions: (1) on
February 6, 1986, when Bevins sent the letter to Sinnett; (2) on
June 23, 1986, when Mat-Maid introduced the letter into evidence
at the arbitration proceeding; and (3) on certain unspecified
dates and to unspecified recipients when "the contents of the
letter [were] used when other employers requested information
regarding Mr. Patterson." On appeal, Patterson failed to
provide briefing about the third occasion; thus we consider this
point waived. See Miles v. Miles, 816 P.2d 129, 133 (Alaska
1991). On the second occasion, publication clearly was
privileged under Hyles. See 849 F.2d at 1217. However, the
first occasion presents a more complex issue. The collective
bargaining agreement on which Mat-Maid relies did not go into
effect until April 1986, after Bevins sent Sinnett the letter.
The agreement was in effect at the time of Patterson's
termination and at the arbitration hearing. Patterson thus
contends that the grant of summary judgment on the absolute
privilege issue was improper because "Mat-Maid has failed to
establish that any [agreement] was in effect at the time of the
initial publication by Bevins to Sinnett."
Mat-Maid's summary judgment motion relied solely on the
April 1986 collective bargaining agreement. However, the
arbitrator's decision states that before the collective
bargaining agreement went into effect, Mat-Maid abided by an
"employer implemented last offer agreement," which was dated
November 18, 1983, and which Local 959 had never endorsed.
Patterson did not address Mat-Maid's arguments at the summary
This evidence is sufficient for the summary judgment in
favor of Mat-Maid to survive Patterson's appeal. If no union-
management grievance resolution mechanism were in effect at all,
then no need would have existed for Bevins' February letter to
Local 959's representative. The implemented agreement clearly
was a substitute for a collective bargaining agreement. The
letter would constitute a type of informal grievance resolution,
related to whatever agreement would be in force at the time of
the actual termination and formal arbitration proceeding. Even
though the letter from Bevins to Sinnett falls outside of formal
grievance proceedings, its relationship with the grievance
resolution process brings it within the scope of the privilege.
See General Motors Corp. v. Meridicki, 367 F.2d 66, 70 (10th Cir.
1966) (holding that absolute privilege extends to statements made
in informal but customary conference, which occurred before
formal hearing on grievance, and which the bargaining agreement
did not mandate); accord Hasten v. Phillips Petroleum Co., 640
F.2d 274, 276-77 (10th Cir. 1981); see also Green v. Hughes
Aircraft Co., 630 F. Supp. 423, 427 (S.D. Cal. 1985) (allowing an
absolute privilege for statements made to union representatives
in a meeting prior to the initiation of disciplinary action).
See generally Gary J. Spivey, Annotation, Libel and Slander:
Privileged Nature of Communication to Other Employees or
Employees' Union of Reasons for Plaintiff's Discharge, 60 A.L.R.
3d 1081 (1974); Gary J. Spivey, Annotation, Libel and Slander:
Privileged Nature of Communications Made in Course of Grievance
or Arbitration Procedure Provided for by Collective Bargaining
Agreement, 60 A.L.R. 3d 1041 (1974).17
We AFFIRM the superior court's grant of summary
judgment to Mat-Maid and the State on Patterson's wrongful
termination claims. As for Patterson's 301 collateral attack
on the arbitrator's award, we conclude that it is barred by the
applicable six-month period of limitations. Similarly, we
conclude that Patterson's direct attack on the arbitrator's award
was untimely and thus was barred.
We AFFIRM the superior court's grant of summary
judgment to Mat-Maid on Patterson's defamation claims, since on
the two occasions when Bevins' February 6, 1986 letter was
published, such publication was absolutely privileged.
* Justice Burke participated in oral argument but retired
from the court before the opinion was rendered.
1 Patterson is a Vietnam veteran who has been diagnosed
as suffering from post-traumatic stress disorder. His
psychotherapist states that as a result of his war experiences
Patterson has "experienced a great deal of problems in his
relationships with supervisors in his work over the years." It
appears that after the change in management "the relationship
between Mr. Patterson and his supervisors became very
2 Before the collective bargaining agreement went into
effect, Mat-Maid looked to an employer-implemented last offer
agreement, which Local 959 had never endorsed, to govern
relations with employees.
3 The agreement specified that the procedures therein
would be "the sole means of resolving disputes, complaints, or
grievances." Under these procedures, arbitration would be a last
4 All claims against Local 959's officers were dismissed
by superior court order in August 1988. The superior court on
that date also ordered a stay of proceedings against Local 959
pursuant to the United States Bankruptcy Code, 11 U.S.C. 362.
In September, the superior court additionally dismissed all
claims against the arbitrator.
5 In Patterson v. State, Mem. Op. & J. No. 0642 (Alaska,
Nov. 4, 1992), this court granted Patterson leave to file a late
appeal from the superior court's final judgment of August 10,
1989. The State now contends that because Patterson did not
explicitly appeal the superior court's May 1, 1989 grant of
summary judgment to the State, he cannot challenge that judgment
here. The superior court's judgment was titled "Order Granting
Final Summary Judgment,"and the State now characterizes this
determination as a proper final judgment.
The State is mistaken. If an action involves multiple
claims or multiple parties, and some claims are adjudicated
before others, then no appeal may be taken until the court has
disposed of the entire case on all substantive issues, except as
provided under Alaska Civil Rule 54(b). See Johnson v. State,
577 P.2d 706, 709-10 (Alaska 1978). Rule 54(b) allows the entry
of final judgment "as to one or more but fewer than all of the
claims or parties only upon an express determination that there
is no just reason for delay and upon an express direction for the
entry of judgment." The superior court's order of May 1, 1989
contained no such explicit findings.
Therefore, no appeals could occur until final
disposition of the action on August 10, 1989, with the entry of
final judgment as to Mat-Maid. The time for filing an appeal on
any of Patterson's claims started at that time. Under these
circumstances, we read our grant of permission to file a late
appeal as an extension of the time to appeal all claims. Whether
Patterson mentioned the judgment of May 1, 1989 in his motion to
file a late appeal is not a relevant consideration.
6 This statute states in part:
Suits for violation of contracts
between an employer and a labor organization
representing employees in an industry
affecting commerce as defined in this
chapter, or between any such labor
organizations, may be brought in any district
court of the United States having
jurisdiction of the parties, without respect
to the amount in controversy or without
regard to the citizenship of the parties.
29 U.S.C. 185(a).
7 The U.S. Supreme Court requires application of federal
law alone in order to ensure uniform interpretation of collective
bargaining agreements and to promote the peaceful and consistent
resolution of disputes between labor and management:
The dimensions of 301 require the
conclusion that substantive principles of
federal labor law must be paramount in the
area covered by the statute.
Comprehensiveness is inherent in the process
by which the law is to be formulated . . .
requiring issues raised in suits of a kind
covered by 301 to be decided according to
the precepts of federal labor policy.
More important, the subject matter
of 301(a) "is peculiarly one that calls for
uniform law." The possibility that
individual contract terms might have
different meanings under state and federal
law would inevitably exert a disruptive
influence upon both the negotiation and
administration of collective
agreements. . . . Indeed, the existence of
possibly conflicting legal concepts might
substantially impede the parties' willingness
to agree to contract terms providing for
final arbitral or judicial resolution of
. . . The ordering and adjusting of
competing interests through a process of free
and voluntary collective bargaining is the
keystone of the federal scheme to promote
industrial peace. State law which frustrates
the effort of Congress to stimulate the
smooth functioning of that process thus
strikes at the very core of federal labor
policy. . . . [W]e cannot but conclude that
in enacting 301 Congress intended doctrines
of federal labor law uniformly to prevail
over inconsistent local rules.
Local 174, Teamsters of Amer. v. Lucas Flour Co., 369 U.S. 95,
103-04 (1962) (citations omitted); accord Lingle v. Norge Div. of
Magic Chef, Inc., 486 U.S. 399, 403 & n.2 (1988). See generally
2 The Developing Labor Law 1556-59 (Charles J. Morris ed., 2d ed.
1988) (discussing applicability of preemption doctrine to fair
representation cases under 301).
8 Patterson's 301 claim against the State is meritless.
As used in the Labor Management Relations Act, the term
"employer" does not include states or their political
subdivisions. 29 U.S.C. 152(7).
9 DelCostello borrowed the statute of limitations for
making charges of unfair labor practices to the National Labor
Relations Board. See 29 U.S.C. 160(b); DelCostello, 462 U.S.
10 The Galindo court said that "in a duty of fair
representation case, the six-month period generally begins to run
when an employee knows or should know of the alleged breach of
duty of fair representation by a union." Id.
Similarly, where a duty of fair
representation suit seeks to overturn an
unfavorable arbitration award on the ground
that the union committed errors in the
arbitration proceedings, the claim accrues
when the employee learns of the arbitrator's
11 See Bauman v. State, Div. of Family & Youth Servs., 768
P.2d 1097, 1099 (Alaska 1989) ("Once the movant has met that
initial burden [establishing the absence of genuine issues of
material fact], 'the non-movant is required, in order to prevent
summary judgment, to set forth specific facts showing that he
could produce evidence reasonably tending to dispute or
contradict the movant's evidence and thus demonstrate that a
material issue of fact exists.'") (quoting State, Dep't of
Highways v. Green, 586 P.2d 595, 606 n.32 (Alaska 1978)).
12 Noting that Local 959 had filed for bankruptcy and had
obtained a stay of Patterson's suit against it during that time,
Patterson also contends that Local 959 was an indispensable
party, and that the limitations period thus was tolled for the
duration of the stay. He is mistaken. Except in unusual
circumstances, an automatic bankruptcy stay under 11 U.S.C.
362(a) applies to the debtor alone and not to non-bankrupt co-
defendants. E.g., Cushman & Wakefield, Inc. v. Backos, 129 B.R.
35, 36 (E.D. Pa. 1991). Therefore, severance of the bankrupt
defendant from non-bankrupt co-defendants is allowable unless the
bankrupt defendant is indispensable to the action. Id.
Patterson acknowledges this rule. He also acknowledges that in a
hybrid 301 action, neither the employer nor the union is
typically an indispensable party in an action against the other,
because generally the suit against the employer is for breach of
the collective bargaining agreement, whereas the suit against the
union is for breach of the duty of fair representation. See
Kaiser v. Local No. 83, 577 F.2d 642, 644 (9th Cir. 1977).
Nonetheless, Patterson contends that Local 959 is an
indispensable party, because his claim against Mat-Maid is not
only for breach of the collective bargaining agreement, but also
for conspiring with the union against Patterson. Patterson does
not discuss why the union might be an indispensable party under
Alaska Civil Rule 19 or the parallel federal rule. The sole
authority on which Patterson relies is an unsupported dictum from
Kaiser that an employer is not a participant in the union's
breach of duty "unless, of course, the employee alleges that his
union and his employer conspired against him." Id.
Patterson's arguments must fail. In order for one
member of a civil conspiracy to be liable, not all members of the
conspiracy need be named defendants or be joined as defendants.
E.g., U.S. Indus., Inc. v. Touche Ross & Co., 854 F.2d 1233, 1251
(10th Cir. 1988); Walker Distrib. Co. v. Lucky Lager Brewing Co.,
323 F.2d 1, 8 (9th Cir. 1963), cert. denied, 385 U.S. 976 (1966);
Non-Ferrous Metals, Inc. v. Saramar Aluminum Co., 25 F.R.D. 102,
104 (N.D. Ohio 1960); 16 Am. Jur. 2d Conspiracy 66 (1979).
13 Ordinarily, the federal statute of limitations for a
motion to vacate, modify, or correct an arbitration award is
three months after the filing or delivery of the award. 9 U.S.C.
12. However, the federal arbitration statutes do not apply to
contracts of employment, such as collective bargaining
agreements, see id. 1; United Paperworkers Int'l Union v.
Misco, Inc., 484 U.S. 29, 40 n.9 (1987), and most of the federal
circuits, including the Ninth Circuit, reject the limitations
period found in 9 U.S.C. 12. See Harry Hoffman Printing, Inc.
v. Graphic Communications, Int'l Union, Local 261, 912 F.2d 608,
612-13 (2d Cir. 1990) (summarizing case authority); San Diego
County Dist. Council of Carpenters v. Cory, 685 F.2d 1137, 1141
(9th Cir. 1982).
14 In contrast, if a union raises a suit directly
challenging the arbitrator's award, so that no issue arises
regarding the duty of fair representation, then the concerns
raised in DelCostello are largely absent. Though the circuits
are split as to what limitations period is applicable, see
Posadas, 873 F.2d at 482-84 (surveying the case law), the Ninth
Circuit employs the state statute of limitations for challenges
to arbitrators' decisions when unions seek to vacate them:
The factors that led to the result
in DelCostello have no parallel in the
present case. [The union] does not claim
that the arbitral process itself was flawed
or distorted by the commission of an unfair
labor practice. It does not seek relief that
could not have been obtained in the
arbitration proceedings themselves. It has
been represented by counsel from the
beginning, and does not question the quality
of the representation.
United Bhd. of Carpenters & Joiners Local 1020 v. FMC Corp., 724
F.2d 815, 817 (9th Cir. 1984). At the same time, applying the
state limitations period promotes the speedy adjudication of
workplace grievances. Posadas, 873 F.2d at 483.
15 The Mitchell court declined to reach the issue of
whether to borrow a federal statute of limitations, because
neither party raised the matter on appeal. Id. at 451 & n.2; see
also DelCostello, 462 U.S. at 154 & n.2.
16 Conceding that the State is immune from suit on the
defamation claims, [At. R. Br. 6] Patterson pursues them against
17 In regard to Bevins' sending the February 6, 1986
letter to Sinnett in his capacity as an officer of Local 959, the
collective bargaining agreement provides:
Any dispute that arises between the
employee and the Employer or any complaint or
grievance on the part of both or one, said
grievance, complaint, or dispute shall be
submitted to the Local Union within thirty
(30) days to be eligible to receive the
assistance of the Local Union.
Given this provision, Bevins' letter to Sinnett can fairly be
viewed as a publication in connection with "'the entire
proceeding contemplated by the provisions of the agreement for
the grievance machinery,'"Green, 630 F. Supp. at 427 (quoting
Hasten, 640 F.2d at 277), and thus is absolutely privileged.