On Mаy 4,1981 the Supreme Court vacated this court’s judgment, made by summary order, in favor of appellants Flowers and Jones, and remanded this action for further consideration in light of United Parcel Service, Inc. v. Mitchell,
Flowers and Jones, craft weldеrs at the Bethlehem Steel Corporation, commenced this action against both their employer and their union under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, alleging that Bethlehem Steel breached its collective bargaining contract by wrongfully discharging the employees and that Local 2602 subsequently breached its duty of fair representation in an arbitration hearing. The complaint in this action was filed approximately eleven months after the employees, represented by the union, had lost in arbitration on the wrongful-discharge claim. The district court dismissed the complаint for failure to comply
The employer in Mitchell petitioned for review of the court of аppeals’ decision, although the union did not do so. The Supreme Court characterized the claim against the employer for wrongful discharge as in essence an action to set aside аn arbitration award. Accordingly, the Court reversed and stated that the appropriate standard to apply was the ninety-day limitations period for actions to vacate an arbitration аward. But as Justice Stevens emphasized in his opinion, concurring in part and dissenting in part, the Court’s reasoning as to the claim against the employer did not necessarily determine which statute of limitations gоverned the employee’s claim against the union for lack of fair representation. Thus, on remand in Flowers we must reverse under Mitchell as to the employer Bethlehem Steel Corporation and we hereby do so. But we still must resоlve whether the broad language of Mitchell applies to the duty of fair representation claim as well as to the breach of contract claim. If we conclude that it does not, we must also determine which statute of limitations applies. We have read with interest the parties’ briefs on these questions.
We believe Justice Stevens to be correct that the claim against the union for unfair representation may not be “characterized as an action to vacate an arbitration award.”
What makes the case difficult is that having Justice Stevens’ opinion before it, the seven-person majority in Mitchell did not specifically limit the applicability of its decision to an employee’s claim against his employer. The Court’s reasoning arguably may require applying the same time limit to сauses of action against the union since the Court found, quoting Hines v. Anchor Motor Freight, Inc.,
Other statements in the Mitchell opinion indicate, however, that a different statute of limitations аpplies to the claim against the union. The Court’s observation that the unfair-representation claim is “more a creature of Tabor law’ as it has developed since the enactment оf § 301 than it is of general contract law,” coupled with references to International Union, UAW v. Hoosier Cardinal Corp.,
The questiоn then becomes whether we are bound to follow the somewhat equivocal dicta expressed by a majority of the Court with reference to a matter which was not specifically beforе it, or whether we can follow what we think is the more persuasive reasoning expressed in a solitary dissenting opinion. We have struggled with this difficult question. Though we are pressed by the dicta of the majority, we are persuaded by Justice Stevens’ analysis. Accordingly, we hold that the arbitration award statute of limitations does not apply.
The question remains whether to apply the three-year statute of limitаtions for malpractice actions, N.Y.Civ.Prac.Law § 214(6), or the six-month limitations period of section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b) (1976). We are persuaded by Justice Stevens’ view
Judgment dismissing the complaint against Bethlehem Steel Corporation affirmed; judgment dismissing the complaint against Local 2602 of the United Steel Workers of America and United Steel Workers of America, International reversed.
Notes
. Justice Stevens’ footnote 3 reads as follows:
By its very nature, the employee’s сlaim that the union breached its duty of fair representation cannot be resolved in an arbitration proceeding because it arises out of the conduct of that proceeding itself.
. Footnote 4 of the Mitchell opinion reads as follows:
Respondent suggests Hines actions might also be characterized as actions upon a statute, personal injury actions, or malpractice actions, all governed by a 3-year limitations period in New York, N.Y.Civ.Prac.Law §§ 214(2), 214(5), 214(6). All of these characterizations suffer from the same flaw as the effort to characterize the action as one for breach of contract: they overlook the fact that an arbitrаtion award stands between the employee and any relief which may be awarded against the company.
. Justice Stevens’ footnote 7 reads as follows:
Under the rationale of International Union, UAW v. Hoosier Cardinal Corp.,383 U.S. 696 , 704-705,86 S.Ct. 1107 , 1112-1113,16 L.Ed.2d 192 , arguably the proper statute of limitations to apply to such a claim would be N.Y.Civ.Prаc. Law § 214(6) (McKinney 1976), which governs claims for nonmedical malpractice. Because the question of the appropriate statute of limitations to apply to respondent’s claim against his union is not properly presented in this case, I express no definite opinion on the point. I note, however, that the Court dismisses the suggestion that this action may be characterized as a malрractice action with the observation that this characterization “overlook[s] the fact that an arbitration award stands between the employee and any relief which may be awarded against the company.” Ante, at 1564, n.4 (emphasis supplied). Because no arbitration award stands between the employee and any relief which may be awarded against the union, this observation is inapplicable to the сlaim against the union.
His footnote 9 reads as follows:
The National Labor Relations Act was enacted in 1935. 49 Stat. 449. Although § 10(b) was a part of the Act at that time, in its original form it did not contain a period of limitations. 49 Stat. 453-454. The 6-month limitations period upon which Justice Stewart relies was added to § 10(b) in 1947. 61 Stat. 146. Six years later, the Court decided the first in a series of cases recognizing that the National Labor Relations Act imposes a duty of fair reprеsentation upon unions. See Ford Motor Co. v. Huffman,345 U.S. 330 [73 S.Ct. 681 ,97 L.Ed. 1048 ]. In 1967, in Vaca v. Sipes,386 U.S. 171 , [87 S.Ct. 903 ,17 L.Ed.2d 842 ] the Court clearly held that this duty may be judicially enforced. See generally Hines v. Anchor Motor Freight, Inc.,424 U.S. 554 , 563-567 [96 S.Ct. 1048 , 1055-1057,47 L.Ed.2d 231 ].
. Justice Stewart’s footnote 4 reads as follows:
Concededly, the terms of § 10(b) are directed to the administrative procedures provided by Congress tо resolve unfair labor practices. But the fact that Congress did not provide a limitations period for a judicially*91 enforceable action later found implied in the NLRA is not comparable tо a congressional failure to establish a time limitation for an action it expressly creates by statute. Cf. Occidental Life Ins. Co. v. EEOC,432 U.S. 355 , 367 [97 S.Ct. 2447 , 2454,53 L.Ed.2d 502 ], In any case, it cannot reasonably be assumed here that congressional silence reflects an intent to apply state statutes of limitation for an action based in part on rights and obligations traceable to the NLRA.