Filed: Dec. 04, 1996
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals, Eleventh Circuit. No. 95-2672. INTERNATIONAL UNION, UNITED PLANT GUARD WORKERS OF AMERICA and Local Union No. 127, Plaintiffs-Counter-Defendants-Appellants, v. JOHNSON CONTROLS WORLD SERVICES, INC., Defendant-Counter- Claimant-Appellee. Dec. 4, 1996. Appeal from the United States District Court for the Middle District of Florida. (No. 94-557-CIV-ORL-22), Anne C. Conway, Judge. Before CARNES, Circuit Judge, and FAY and GIBSON*, Senior Circuit Judges. JOHN R. GIBSON
Summary: United States Court of Appeals, Eleventh Circuit. No. 95-2672. INTERNATIONAL UNION, UNITED PLANT GUARD WORKERS OF AMERICA and Local Union No. 127, Plaintiffs-Counter-Defendants-Appellants, v. JOHNSON CONTROLS WORLD SERVICES, INC., Defendant-Counter- Claimant-Appellee. Dec. 4, 1996. Appeal from the United States District Court for the Middle District of Florida. (No. 94-557-CIV-ORL-22), Anne C. Conway, Judge. Before CARNES, Circuit Judge, and FAY and GIBSON*, Senior Circuit Judges. JOHN R. GIBSON,..
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United States Court of Appeals,
Eleventh Circuit.
No. 95-2672.
INTERNATIONAL UNION, UNITED PLANT GUARD WORKERS OF AMERICA and
Local Union No. 127, Plaintiffs-Counter-Defendants-Appellants,
v.
JOHNSON CONTROLS WORLD SERVICES, INC., Defendant-Counter-
Claimant-Appellee.
Dec. 4, 1996.
Appeal from the United States District Court for the Middle
District of Florida. (No. 94-557-CIV-ORL-22), Anne C. Conway,
Judge.
Before CARNES, Circuit Judge, and FAY and GIBSON*, Senior Circuit
Judges.
JOHN R. GIBSON, Senior Circuit Judge:
The International Union of the United Plant Guard Workers of
America and its Local Union No. 127 appeal from the district
court's entry of summary judgment against them on their suit to
compel Johnson Controls World Services, Inc. to submit to
arbitration. The district court determined that the union's suit
was time-barred under the six-month statute of limitations borrowed
from the National Labor Relations Act. We reverse.
The union and Johnson Controls are parties to a collective
bargaining agreement covering conditions of employment of security
guards working at Cape Canaveral Air Force Station. Cape Canaveral
is a federal enclave, ceded by the state of Florida to the federal
government in 1955.
*
Honorable John R. Gibson, Senior U.S. Circuit Judge for the
Eighth Circuit, sitting by designa`
1
On July 17, 1991 the union filed three grievances alleging
that Johnson Controls was using supervisory personnel to do work
guaranteed to the members of the bargaining unit under the
collective bargaining agreement.2 The union appealed the
grievances to arbitration, in accordance with the provisions in the
collective bargaining agreement. On August 26, 1993 Johnson
Controls notified the union that it denied the grievances and would
not process them further. On May 16, 1994, the union filed suit
under section 301 of the Labor-Management Relations Act, 29 U.S.C.
§ 185 (1994), seeking to compel arbitration of the grievances.
Johnson Controls moved for summary judgment on the ground that
the suit was barred by the six-month statute of limitations
borrowed from section 10 of the National Labor Relations Act, 29
U.S.C. § 160(b) (1994). The district court entered judgment for
Johnson Controls. The court reasoned that since section 301 of the
LMRA had no statute of limitations, the court should borrow state
law in accord with the principles of Reed v. United Transportation
Union, 488 U.S. 319,
109 S. Ct. 621,
102 L. Ed. 2d 665 (1989),
DelCostello v. International Brotherhood of Teamsters,
462 U.S.
151,
103 S. Ct. 2281,
76 L. Ed. 2d 476 (1983), and United Paperworkers
International v. ITT Rayonier, Inc.,
931 F.2d 832 (11th Cir.1991).
The court did not explicitly consider which state it ought to
1
The union concedes that two of the three grievances have
been settled and are therefore moot. This opinion only concerns
the surviving grievance, No. 91-SP-19, concerning the use of
sergeants to do electronic security system control monitoring.
2
Article 22, section (c) of the collective bargaining
agreement stated: "Supervisors normally will not perform the
duties of Security Policemen other than in emergency situations."
borrow from, but merely assumed that it should borrow the law
governing the situs of the dispute, Cape Canaveral. Cape
Canaveral, being a federal enclave, has no state law as such,
except to the extent that it incorporated, as its own, Florida law
as it existed at the time Florida ceded the enclave to the United
States. The court therefore arrived at the conclusion that if it
were to apply state law at all, it must be Florida law as it
existed in 1955, the time when the enclave was ceded to the United
States. The analogous limitation period from pre-cession Florida
law was five years. Fla.Stat. ch. 95.11(3) (1955). The court
concluded that a five-year limitation period would contravene the
federal interest in prompt resolution of labor disputes, citing
International Association of Machinists & Aerospace Workers, Local
1688 v. Allied Products Corp., 786 F.2d 1561 (11th Cir.1986).
Consequently, the court decided that it must apply the most
analogous federal statute of limitations, which was the six-month
period from section 10(b) of the N.L.R.A. The union filed the suit
more than six months after Johnson Controls informed the union of
its refusal to arbitrate. Therefore, the court held the suit was
time-barred.
On appeal, the union argues that the pre-cession law of
Florida is not state law. Even though it originated as state law,
it has been incorporated into the federal law of the enclave and is
now federal law. Therefore, the court would not be borrowing state
law, as dictated by Reed, et al., if it borrowed this federal law.
The union argues that to borrow state law, we must look to the
present law of Florida. On the other hand, Johnson Controls argues
that pre-cession Florida law is the relevant state law, that the
district court properly refused to follow it, and that the court
correctly chose the federal six-month statute.
So, Johnson Controls argues that state law means the law of
the enclave, and the Union argues that state law means the present
law of Florida. Though neither side articulates a theory of how to
select the relevant state law, in effect, the question they pose is
whether we are to apply the limitations law of the forum or that of
the place where the claim arose.
In this circuit we have stated: "Where Congress has provided
no limitations period for a federal claim ... a court must borrow
the applicable limitations period and tolling rules from the state
in which it sits, unless those rules are inconsistent with federal
policy." Hawthorne v. Wells, 761 F.2d 1514, 1515 n. 7 (11th
Cir.1985) (emphasis added). Accord Fullman v. Graddick,
739 F.2d
553, 557 (11th Cir.1984); McGhee v. Ogburn,
707 F.2d 1312, 1313
(11th Cir.1983). In the former Fifth Circuit, the cases sometimes
stated that federal courts borrowed the forum state's law and
sometimes stated that they borrowed the law of the state where the
cause arose, without acknowledging the apparent conflict between
the two rules. Compare Vigman v. Community Nat. Bank & Trust Co.,
635 F.2d 455, 459 (5th Cir.1981) (law of forum); and Beard v.
Stephens,
372 F.2d 685, 688 (5th Cir.1967) (same); with Sewell v.
Grand Lodge,
445 F.2d 545, 549 (5th Cir.1971) (place where claim
arose, but citing Beard v.
Stephens, supra, which states opposite
rule), cert. denied,
404 U.S. 1024,
92 S. Ct. 674,
30 L. Ed. 2d 674
(1972); and Dantagnan v. I.L.A. Local 1418,
496 F.2d 400, 401 (5th
Cir.1974) (law of place where claim arose, citing Sewell ).3
The Supreme Court has not definitely settled the question of
what state's limitations law is to be borrowed.4 The choice of law
3
Most other circuits borrow the law of the forum. See Ceres
Partners v. GEL Associates, 918 F.2d 349, 353 (2d Cir.1990);
Eichleay Corp. v. International Ass'n of Iron Workers,
944 F.2d
1047, 1062 (3d Cir.1991), cert. dismissed,
503 U.S. 915,
112
S. Ct. 1285,
117 L. Ed. 2d 510 (1992); Champion Int'l Corp. v.
United Paperworkers International Union,
779 F.2d 328, 332-34
(6th Cir.1985); Teamsters Local No. 579 v. B & M Transit, Inc.,
882 F.2d 274, 276 (7th Cir.1989); Kansas Pub. Employees
Retirement Sys. v. Reimer & Koger Assoc., Inc.,
61 F.3d 608, 611
(8th Cir.1995), cert. denied, --- U.S. ----,
116 S. Ct. 915,
133
L. Ed. 2d 845 (1996); Forrestal Village, Inc. v. Graham,
551 F.2d
411, 413 (D.C.Cir.1977). There are, however, other views. See
Held v. Manufacturers Hanover Leasing Corp.,
912 F.2d 1197, 1202-
03 (10th Cir.1990) (applying choice of law test from Restatement
(Second) of Conflicts of Law). Compare Chung v. Pomona Valley
Community Hosp.,
667 F.2d 788, 791 (9th Cir.1982) (apply
limitations law of state with most substantial contacts with
claim), with Felton v. Unisource Corp.,
940 F.2d 503, 511 (9th
Cir.1991) (apply limitations law of the forum).
4
In Cope v. Anderson, 331 U.S. 461,
67 S. Ct. 1340,
91 L. Ed.
1602 (1947), the Supreme Court considered federal question cases
which were filed in Ohio and Pennsylvania, respectively, but
which arose in Kentucky. The Court applied the borrowing
statutes of the forum states, Ohio and Pennsylvania, which in
turn required application of Kentucky's statute of limitations.
The Supreme Court itself has apparently not considered Cope v.
Anderson a clear statement of the law, since in a later case the
Court explicitly reserved the choice of law question. See UAW v.
Hoosier Cardinal Corp.,
383 U.S. 696, 705 n. 8,
86 S. Ct. 1107,
1113 n. 8,
16 L. Ed. 2d 192 (1966).
The parties did not brief the question, and the union
has not argued that the Florida borrowing statute, Fla.Stat.
ch. 95.10 (1982), would apply and would require the court to
apply Cape Canaveral law after all. Some circuits routinely
apply the forum state's borrowing statute, see, e.g.,
Robertson v. Seidman & Seidman, 609 F.2d 583, 586 (2d
Cir.1979); Burns v. Union Pac. R.R., 564 F.2d 20, 22 (8th
Cir.1977). But in Champion International Corp. v. United
Paperworkers International Union, 779 F.2d 328 (6th
Cir.1985), the Sixth Circuit rejected the idea that Cope
requires application of the forum state's borrowing statute.
Id. at 332-34. The Sixth Circuit held that federal courts
should instead apply a federal choice of law rule, choosing
the forum state's statute of limitations governing the most
analogous state substantive claim unless it undermines
question was arguably decided, if only implicitly, in North Star
Steel Co. v. Thomas, --- U.S. ----, 115 S. Ct. 1927,
132 L. Ed. 2d 27
(1995). There, two cases were filed in Pennsylvania; one of the
cases arose in Pennsylvania and one in Georgia. The issue in the
cases was from what source the court should borrow a statute of
limitations for a federal labor statute that did not contain its
own limitations period. The Third Circuit held that state law
applied, though it did not decide which state, since neither
Georgia nor Pennsylvania law would have barred the suit. United
Steelworkers v. Crown Cork & Seal Co.,
32 F.3d 53, 60 n. 4 (3d
Cir.1994). The Supreme Court opinion affirmed that state rather
than federal law should be the "lender of first resort" for federal
statutes that have no limitations period. --- U.S. at
----, 115
S. Ct. at 1930. The Supreme Court did not discuss the issue of
whether Georgia or Pennsylvania law should apply to the case that
arose in Georgia, but the Court referred to Pennsylvania law,
without mentioning the possible application of Georgia law. See,
e.g.,
id. at ---- -
----, 115 S. Ct. at 1930-31. The Court also
acknowledged that its rule could lead to forum shopping:
"[Petitioners] are right of course that the practice of adopting
state statutes of limitations for federal causes of action can
result in different limitations periods in different states for the
same federal action...."
Id. at ---- -
----, 115 S. Ct. at 1931-32.
federal policy or causes undue hardship. Id. at 334. The
Sixth Circuit, however, has limited the holding in Champion
International, see Caproni v. Prudential Securities, Inc.,
15 F.3d 614, 617-18 (6th Cir.1994), deciding that it is
sometimes appropriate to apply the forum state's borrowing
statute. It suffices to say that we need not reach this
difficult question.
This statement implies that the limitations law would be borrowed
from the forum state, because if the law were borrowed from the
state where the claim arose, the limitations period would not vary
according to where the case was filed.
Considering the Eleventh Circuit precedent directing us to
look to the law of the forum and the language in North Star which
we take to be consistent with that rule, we conclude that the
district court for the Middle District of Florida must apply the
present law of Florida, the forum state. The district court erred
in applying the law of the federal enclave, which was irrelevant.
Under current Florida law, the most analogous statute of limitation
is the one-year statute for specific performance of contract,
Fla.Stat. ch. 95.11(5)(a). See ITT Rayonier, 931 F.2d at 835-36.
Under the one year statute, the union's suit was timely.
Even if we were to borrow Cape Canaveral law, the relevant
pre-cession Florida statute of limitations was five years,
Fla.Stat. ch. 95.11(3) (1955). The district court declined to
apply the five-year statute because it concluded that a five-year
period would frustrate federal policy favoring speedy resolution of
labor disputes. After rejecting the five-year period, the district
court looked to the six-month federal statute. However, after the
district court's decision, the Supreme Court decided North Star
Steel. There, the Court said that even a six-year statute of
limitations would not frustrate the federal interest in rapid
disposition of labor disputes. --- U.S. at ----, 115 S. Ct. at 1931
(quoting Hoosier Cardinal
Corp., 383 U.S. at 707, 86 S.Ct. at
1114). We have some question as to whether the district court's
reasoning survives North Star. If it does not, even if the federal
enclave law applied, the relevant limitations period in Cape
Canaveral would be five years. This case would be timely, whether
we applied the current Florida statute of limitations or the law of
the federal enclave.
Finally, Johnson Controls contends that the grievance is not
arbitrable because it presents a representation issue that has been
decided by the National Labor Relations Board. The Board decided
two representation proceedings in which the union sought to
represent the sergeants who it claims are doing work guaranteed to
the bargaining unit. First in a bargaining unit clarification
proceeding and then in a proceeding for certification of a separate
bargaining unit, the union sought to represent the sergeants. The
Board denied the clarification petition because the sergeants had
historically been excluded from the bargaining unit and there had
not been recent, substantial changes in their duties and
responsibilities. The Board denied the representation petition
because it found the sergeants to be supervisors. The grievance
does not seek to represent the sergeants, but to keep them from
performing duties of bargaining unit personnel. The grievance
lists as relief requested: "Cease and desist from supervisors
performing bargaining unit work." This issue is distinct
theoretically from that raised in the representation proceedings,
though the two issues are related. See Carey v. Westinghouse Elec.
Corp., 375 U.S. 261, 268-70,
84 S. Ct. 401, 407-08,
11 L. Ed. 2d 320
(1964). Though theoretically distinct, it may be that the factual
issues are identical, but Johnson Controls has not demonstrated
that. Therefore, we have no basis for precluding arbitration.
We REVERSE the judgment of the district court.
