LEGAL ARGUMENT I. THE "LAW OF THE CASE" DOCTRINE PRECLUDES RELITIGATION OF THE STATUTE OF LIMITATIONS ISSUE.

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1 LEGAL ARGUMENT I. THE "LAW OF THE CASE" DOCTRINE PRECLUDES RELITIGATION OF THE STATUTE OF LIMITATIONS ISSUE. Defendant Kline Manufacturing Corporation (hereinafter "KMC") has filed multiple motions to dismiss this case, greatly delaying the resolution of this matter, increasing the costs of litigation, and needlessly wasting judicial resources. This case was filed in December 1994, and Plaintiffs still have not had their day in court, due primarily to KMC's tactics. KMC filed its first motion for summary judgment in On November 16, 1997, this Court issued its Order dismissing (without prejudice) Plaintiffs' claims against KMC on the grounds that the state law claims were preempted by 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C The Court held, however, that Plaintiffs' claims were not barred by the six-month statute of limitations applicable to "hybrid" actions under 301 and that the "the statute of limitations to be applied is the two-year limitations period applicable to employment disputes not based on a written contract." (Opinion, dated November 16, 1997, p. 25 (citing Smith v. Chrysler Corp., 938 F. Supp. 1406, (S.D. Ind. 1996) (citing Jones v. General Electric Co., 87 F.3d 209, (7 th Cir. 1996))).) Thus, the Court's ruling left open the possibility of Plaintiffs amending their complaint. Plaintiffs filed their Sixth Amended Complaint which asserts a claim under 301 for breach of the collective bargaining agreement ("CBA") against KMC and sets forth, in 44aee, why any attempt to utilize the grievance and arbitration procedures provided for in the CBA would have been futile. Also, Plaintiffs withdrew their request for an order requiring 1

2 that they be reinstated to the bargaining unit and seek only monetary damages under 301 of the LMRA. No claim is asserted against the union for breach of the duty of fair representation since, at the time of KMC's wrongful acts, Plaintiffs were not members of the bargaining unit and the Union, therefore, had no duty to represent them at all. On January 8, 2003, Defendant KMC filed its Renewed Motion for Summary Judgment. In it, KMC reiterated many of the same arguments it raised in its first motion for summary judgment. Plaintiffs filed their opposition to KMC's renewed motion, and the parties await the Court's ruling thereon. In its latest motion, entitled "Supplemental Renewed Motion of Defendant Kline Manufacturing Corporation for Summary Judgment," filed May 20, 2003, KMC seeks yet another bite at the proverbial apple. Relying on an unreported decision by another judge in this District, having no precedential authority at all, KMC asks this Court to reverse its wellreasoned and well-supported holding that this case is governed by Indiana's two year limitations period, and not the six-month period applicable to "hybrid" suits. "Under the law of the case doctrine the relevant preclusion doctrine in this case 'when a court decides upon a rule of law, that decision should continue to govern the same issue in subsequent stages of the same case.'" AM General Corp. v. DaimlerChrysler Corp., 246 F. Supp. 2d 1030, 1033 (N.D. Ind. 2003) (quoting United States v. Story, 137 F.3d 518, 520 (7th Cir. 1998)) (citations and quotations omitted). Where, as here, a court has ruled on an issue as straightforward as which limitations period applies to a claim, the law 2

3 of the case doctrine provides that the court's ruling should stand, absent extraordinary circumstances. The question of the applicable statute of limitations previously has been analyzed by this court in significant detail. See Merk, 641 F. Supp. at In that opinion, we held that, after dismissal of the unfair representation claim against the Union, this action resembled the "straightforward suit under 301" against the employer alone as in Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S. Ct. 1107, 16 L. Ed. 2d 192 (1966), rather than the "hybrid" action against both the employer and the union as in Del Costello. Merk, 641 F. Supp. at Accordingly, we concluded that the appropriate statute of limitations period, as borrowed from Illinois law, was five years in length. Id. at Relying on International Union of Elevator Constructors v. Home Elevator Co., 798 F.2d 222 (7th Cir. 1986), the Seventh Circuit concurred in our judgment. Merk I, 848 F.2d at 762 n.2. As the law of the case, our adoption of the five-year statute of limitations period will stand unless Jewel can show either a substantial change in facts underlying our previous decision, a change in the applicable case law or gross error in our earlier ruling. See Miles v. Kohli & Kaliher Assoc., Ltd., 917 F.2d 235, 241 (6th Cir. 1990); Wheeler v. City of Pleasant Grove, 896 F.2d 1347, 1350 (11th Cir. 1990); Waggoner v. Dallaire, 767 F.2d 589, 593 (9th Cir. 1985), cert. denied, 475 U.S. 1064, 106 S. Ct. 1374, 89 L. Ed. 2d 601 (1986). Merk v. Jewel Food Stores, Div. Jewel Cos., 813 F. Supp. 1324, (N.D. Ill. 1992) (emphasis added). Here, as in Merk, no unfair representation claim has been or could possibly be asserted against the Union since plaintiffs were not members of the bargaining unit at the time of KMC's wrongful acts and the Union, therefore, had no duty to represent them. Therefore, this is not a "hybrid" claim governed by DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 164, 103 S. Ct. 2281, 2290, 76 L. Ed. 2d 476 (1983), and this Court was absolutely correct in its application of the Indiana two-year statute of limitations. (See 3

4 Point II, infra.) KMC points to no change in the facts or gross error in the earlier ruling. The unreported opinion on which KMC relies, Hawkins v. General Motors Corp. et al, No. IP C-T/K (S.D. Ind. July 9, 2003) [copy attached to KMC's brief], can hardly be considered a "change in the applicable case law" since it has no precedential value. Thus, applying the law of the case doctrine, this Court should refuse to consider KMC's latest motion and should award to Plaintiffs the costs of opposing same. II. THE INDIANA TWO-YEAR LIMITATIONS PERIOD APPLIES TO PLAINTIFFS' CLAIMS UNDER 301 OF THE LMRA. Section 301 of the LMRA, like many federal statutes, contains no specific statute of limitations. Therefore, federal courts have had to fill the gap left by Congress. "The courts have generally concluded that Congress intended that the courts apply the most closely analogous statute of limitations under state law." DelCostello, 462 U.S. at 158, 103 S. Ct. at In International Union, United Automobile Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S. Ct. 1107, 16 L. Ed. 2d 192 (1966), the Supreme Court, employing the general approach outlined above, applied a state statute of limitations to a claim brought by a union pursuant to 301 alleging that the company had breached the collective bargaining agreement by failing to pay accumulated vacation pay. The Court first considered whether federal labor policy required a uniform statute of limitations for all 301 actions and held that it did not. Id. at 702, 86 S. Ct. at The Court characterized the 301 action at issue 4

5 as "essentially an action for damages caused by an alleged breach on an employer's obligation embodied in a collective bargaining agreement. Such an action closely resembles an action for breach of contract cognizable at common law." Id. at 705 n.7, 86 S. Ct. at 1113 n.7. The Court held that the timeliness of such a 301 suit is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations, id. at , 86 S. Ct. at , and applied the Indiana six-year statute of limitations as the most appropriate limitations period. Id. at 707, 86 S. Ct. at In Hoosier Cardinal, the Court noted that other 301 suits might call for application of other rules on timeliness. Id. at 705 n.7, 86 S. Ct. at 1113 n.7. In DelCostello, the Court was confronted with such a situation. The 301 action in DelCostello involved a suit by an employee "against an employer and a union, alleging that the employer had breached a provision of the collective bargaining agreement and that the union had breached its duty of fair representation by mishandling the ensuing grievance-and-arbitration proceedings." 462 U.S. at 154, 103 S. Ct. at The Supreme Court concluded that this type of 301 suit should be subject to the six-month statute of limitations contained in 10(b) of the NLRA. It distinguished the "straightforward" 301 suit it Hoosier Cardinal from the "hybrid" 301 suit in DelCostello. 1 Subsequent to Hoosier Cardinal, the Indiana legislature enacted a two-year limitations period which specifically covers employment disputes not based on a written contract. The Seventh Circuit has held that this is the appropriate limitations period to apply in a straightforward 301 case. International Union of Elevator Constructors v. Home Elevator Co., 798 F.2d 222, 230 (7 th Cir. 1986). 5

6 Defendant KMC mischaracterizes the holding of DelCostello by implying that DelCostello overruled Hoosier Cardinal. (Deft.'s Brief at 4.) Clearly, it did not. The Supreme Court merely carved out a narrow exception to the general rule requiring application of the most analogous state limitations period, as set forth in Hoosier Cardinal. As noted by the Seventh Circuit: DelCostello did not signal an abandonment of the general practice established in Hoosier Cardinal. The Supreme Court, in DelCostello, emphasized that its holding "should not be taken as a departure from prior practice of borrowing limitation periods for federal causes of action, in labor law or elsewhere." 462 U.S. at 171, 103 S. Ct. at The general norm remains that, unless it is inconsistent with federal law or policy, a federal court will apply the most analogous state limitation period in a 301 suit. Id.; Carruthers Ready-Mix, Inc. v. Cement Masons Local Union No. 520, 779 F.2d 320, 322 (6th Cir.1985); Derwin v. General Dynamics Corp., 719 F.2d 484, 487 (1st Cir.1983). Indeed, this court, in Plumbers Pension Fund [Local 130 v. Domas Mechanical Contractors, Inc., 778 F.2d 1266, (7th Cir.1985)], established a methodology for determining whether we should depart "from the longstanding rule of borrowing the applicable state statute of limitations." 778 F.2d 1266, 1268 (7th Cir.1985) (emphasis supplied). In Plumbers Pension Fund, this court isolated the two factors which the Supreme Court found controlling in selecting the federal limitations period in DelCostello. First, federal law provided a more closely analogous limitations period than any state statute. Second, the federal policies at stake and the practicalities of litigation made the federal limitation period a significantly more appropriate vehicle for interstitial law making. 778 F.2d at Accordingly, recognizing that DelCostello is an exception to the general rule, we must determine whether the factors which distinguish DelCostello from Hoosier Cardinal require us to apply the six-month federal limitation period in this case. If these factors are not present, then we are bound by the Supreme Court's holding in Hoosier Cardinal to apply the most analogous state statute of limitations. International Union of Elevator Constructors v. Home Elevator Co., 798 F.2d 222, (7 th Cir. 1986). 6

7 In Home Elevator, the Seventh Circuit held that the two-year Indiana statute of limitations for employment disputes not based on written contracts was applicable to a union's 301 claim against an employer for breach of a CBA. In analyzing the claim, the Court noted that the first consideration upon which the Supreme Court relied in selecting a federal limitations period in DelCostello was the lack of a closely analogous state cause of action. "The suit is thus not a straight-forward breach-of-contract suit under 301, as was Hoosier, but a hybrid 301/fair representation claim, amounting to "a direct challenge to 'the private settlement of disputes under [the collective-bargaining agreement].'" DelCostello, 462 U.S. at 165, 103 S. Ct. at 2291 (quoting United Parcel Service v. Mitchell, 451 U.S. 56, 66, 101 S. Ct. 1559, 1565, 57 L. Ed. 2d 732 (1981) (Stewart, J., concurring)). Such a suit, noted the Court, "has no close analogy in state law." DelCostello, 462 U.S. at 165, 103 S. Ct. at In Home Elevator, the Seventh Circuit concluded that like Hoosier Cardinal and unlike DelCostello the basic allegation in this case is that a company breached the collective bargaining agreement. As, in Hoosier Cardinal, the interests at stake in this 301 suit are similar to those that the state legislature would have considered when it established a limitations period for a breach of contract action. The fact that the contract at issue also contained an arbitration clause does not reduce the similarity between the 301cause of action and a breach of contract claim. The existence of an alternate forum for the resolution of the dispute does not change the character of the legal claim. 798 F.2d at Thus, the Court determined that the 301 suit at issue was closely analogous to a common-law breach-of-contract action. 7

8 The second consideration which the Supreme Court looked at in DelCostello was whether the federal policies at stake and the practicalities of litigation made the federal limitation period significantly more appropriate. The Seventh Circuit, in Home Elevator, also paid heed to this important consideration and concluded that two important goals of federal labor policy rapid resolution of labor disputes and a uniform treatment of labor issues did not require application of the six-month limitation period. The Court noted that, "Different degrees of dispatch are necessary or appropriate in different industrial relations contexts." 798 F.2d at 228. Applying the above analysis to the case at bar, it is clear that in determining whether to apply a state statute of limitations to Plaintiffs' 301 claim against KMC versus the sixmonth limitations period provided in the LMRA, the critical issue to be decided is whether this case is a "hybrid" 301/fair representation action governed by DelCostello or a "straightforward" 301 claim governed by Hoosier Cardinal. As demonstrated below, Plaintiffs' claims herein are closely analogous to a common-law breach-of-contract claim and do not include a claim of breach of the duty of fair representation against the union. This case is therefore most appropriately characterized as a "straightforward" 301 case, governed by the Indiana two-year statute of limitations. As this Court no doubt recalls, Plaintiffs herein are all former bargaining unit members who agreed to accept salaried supervisor positions outside the bargaining unit in reliance on KMC's promises and assurances that they would retain the unilateral and unconditional right to return to the bargaining unit. KMC reneged on its promises to 8

9 Plaintiffs and refused to allow Plaintiffs to return to their bargaining unit positions. As nonbargaining unit members, Plaintiffs had no right to file a Union grievance or to be represented by the Union at all. Their only remedy was to file a direct lawsuit against Kline Manufacturing. Plaintiffs included the Union as a party in this lawsuit solely for the purpose of rendering any judgment which may be entered enforceable vis-a-vis the Union. Plaintiffs originally sought an order directing KMC and the Union to return the Plaintiffs to their bargaining unit positions. The most recent amendment of Plaintiff's Complaint, however, now seeks only monetary damages from Defendant KMC. The Union, therefore, is no longer a necessary party to this lawsuit, and Plaintiffs will consent to a voluntary dismissal of all claims against the Union. Plaintiffs do not now and at no time ever claimed that the Union breached its duty of fair representation. The duty of fair representation is a creature of the judiciary, created as a necessary complement to the National Labor Relations Act ("NLRA"), 29 U.S.C. 151 et seq. The duty exists because the NLRA makes certified labor unions the exclusive bargaining representative of all employees in the bargaining unit. See Frandsen v. Brotherhood of Railway, Airline and Steamship Clerks, 782 F.2d 674, (7th Cir. 1986). Since the policy of exclusivity strips employees of normal methods of redress, for their protection, the employees' exclusive representative, the Union, necessarily has the duty "to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Vaca v. Sipes, 386 U.S. 171, 177, 87 S. Ct. 903, 909, 17 L. Ed. 2d 842 (1967). However, this duty of fair representation extends no further than the Union's authority under 9(a) of the NLRA, 29 U.S.C. 159(a), to act as the exclusive representative of the bargaining unit. See, e.g., Freeman v. Local Union No. 135, Chauffeurs, Teamsters, Warehousemen and Helpers, 746 F.2d 1316, (7th Cir. 1984). Thus, if the Union is not the exclusive representative of an employee, it has no corresponding duty to represent that employee fairly or at all. See id. at

10 Merk v. Jewel Food Stores Div., Jewel Cos., 641 F. Supp. 1024, (N.D. Ill. 1986), aff'd, 848 F.2d 761 (7th Cir. 1988), cert. denied, 488 U.S. 956, 109 S. Ct. 393, 102 L. Ed. 2d 382 (1988). In Merk, former employees brought an action against their former employer and the union. The district court held that the union owed the former employees no duty of fair representation and thus, the former employees had no "hybrid" cause of action. The court applied the state statute of limitations to the former employees' direct action against their former employer. The Seventh Circuit affirmed, 848 F.2d 761, and the U.S. Supreme Court denied certiorari, 488 U.S. 956, 109 S. Ct The district court noted that the plaintiffs were ex-members of the bargaining unit. They no longer paid dues and exercised no power within the Union. Not only would it defy common sense to make the Union exclusive representative of departed employees, it would be unfair to the ex-employees and the Union to do so. If the duty of fair representation lingered after the plaintiffs left Jewel, they would have been subject to the Union's exclusive representation but have had no control over their representatives. Unlike current employees who can vote against proposed contracts they do not like, vote against Union officers they do not like or try to decertify the Union altogether, the ex-employees would be stuck with a representative who is not beholden, and therefore unresponsive, to them. If the duty existed, the Union would be forced to deal with an intolerable conflict of interest between its simultaneous duty to current and ex-employees. It would inevitably sacrifice the interest of ex-employees in order to satisfy current employees, who wield present and future power in the Union. To hold that the Union had a duty to continue representing plaintiffs would be tantamount to holding, that it had a duty to achieve the impossible. 641 F. Supp. at It is equally apparent here that the Union had no duty to represent the Plaintiffs with regard to their claims against KMC. Plaintiffs were not members of the bargaining unit. 10

11 Thus, Plaintiffs can assert no claim against the Union for breach of the duty of fair representation. This is plainly not a hybrid suit. The key to the hybrid suit is the breach of the duty of fair representation, which... flows from the federal labor policy of exclusive representation. That policy is implicated in every hybrid suit. Moreover, the hybrid suit typically challenges the result reached by the consensual process this exclusive representative, the Union, and management have engaged in; it usually entangles either the formation of a collective bargaining agreement or, more typically, the private settlement through grievance or arbitration of a dispute under one. Congress designed the six-month period of 10(b) with these policies, among others, in mind.... Unlike the typical hybrid suit, which seeks to modify a collective bargaining agreement or to overturn a result reached through a grievance or settlement of a dispute under such an agreement, this case does not intrude on the new contract or settlement reached between Jewel and the Union. This result flows naturally from the holding that no duty of representation existed. The plaintiffs' rights and their remedy are distinct from those of current employees. In short, because plaintiffs were not part of any settlement, this case, unlike Del Costello, does not directly implicate "those consensual processes that federal labor law is chiefly designed to promote." 462 U.S. at 163, 103 S. Ct. at Section 10(b), which was designed to strengthen and defend the stability of bargaining relationships and to protect a collective bargaining system from delayed attack, see United Parcel Service v. Mitchell, 451 U.S. 56, 68, 101 S. Ct. 1559, 1567, 67 L. Ed. 2d 732 (1981) (Stewart, J., concurring), does not pertain to this case, since plaintiffs fell out of the bargaining relationship and system[.] Id. at Plaintiffs here similarly fell outside of the bargaining relationship and system. No duty of fair representation existed and Plaintiffs' claim is therefore not a "hybrid" claim, but is rather a "straightforward" 301 claim governed by the applicable state statute of limitations under the rulings of Hoosier Cardinal, Home Elevator, and Merk. 11

12 In Jones v. General Electric Co., the Seventh Circuit assumed, without deciding, that a claim brought by an employee against his employer seeking enforcement of plant closing provisions of a collective bargaining agreement was a straightforward 301 claim and not a hybrid claim governed by the six-month statute of limitations. 87 F.3d at 212. There, the plaintiff argued that his local union became "defunct" with the closing of the plant and that any duty of the union to represent him was therefore dissolved. Id. at 211. The Court held that the Indiana two-year limitations period applied to the claim. See also Smith v. Chrysler Corp. (applying Indiana's two-year limitations period to employees' claim against employer for breach of CBA). The cases cited by Defendant are all nonbinding and distinguishable. The unreported case of Hawkins v. General Motors et al., No. IP C-T/K (S.D. Ind. July 9, 2003), clearly is not binding on this Court. In that case, Judge Tinder erred in applying the sixmonth statute of limitations to a similar claim against KMC. Judge Tinder erroneously reasoned that "because the CBA contains a grievance procedure, 301 claims against KMC are not actionable unless the Plaintiff can establish that the union breached its duty of fair representation." Id. at 3 (citing Filippo v. Northern Indiana Public Service Corp., 141 F.3d 744, 748 (7 th Cir. 1998); DelCostello, 462 U.S. at ; Greenslade v. Chicago Sun-Times, Inc., 112 F.3d 853, 868 (7 th Cir. 1997)). "Thus, the court concludes that the Plaintiff's breach of contract and other state law claims against KMC are hybrid 301 claims and therefore subject to the six-month limitations period." Hawkins, No. IP C-T/K at 3 (citing Jones, 87 F.3d at ). 12

13 Whether or not the CBA contains a grievance procedure is not determinative of which limitations period applies to the plaintiffs' claims. See Home Elevator, 798 F.2d at 227 ("The only significant difference between this case and Hoosier Cardinal is that the collective bargaining agreement in this case contained an arbitration clause. Accordingly, in determining whether this case should be governed by the general rule of Hoosier Cardinal or by the exception of DelCostello, we must give particular attention to the existence of the arbitration clause in the present case.") There, the Seventh Circuit found that the existence of a grievance procedure in the CBA did not automatically result in a finding that the claim was a "hybrid." The fact that the contract at issue also contained an arbitration clause does not reduce the similarity between the 301 cause of action and a breach of contract claim. The existence of an alternate forum for the resolution of the dispute does not change the character of the legal claim. Home Elevator, 798 F.2d at Judge Tinder failed to consider Hoosier Cardinal or to apply the analysis outlined by the Supreme Court in DelCostello and clarified by the Seventh Circuit in Plumbers Pension Fund Local 130 v. Domas Mechanical Contractors, Inc., 778 F.2d 1266 (7 th Cir. 1985), and Home Elevator. No consideration was given to whether plaintiff's claim was closely analogous to a state cause of action, or whether federal policies and the practicalities of litigation made the federal limitations period significantly more appropriate. Had he engaged in the proper analysis, Judge Tinder would have held that Hawkins' claim, like Plaintiffs' claims herein, was a straightforward 301 claim, subject to the Indiana two-year statute of limitations. 13

14 Filippo, 141 F.3d at 748, cited by Judge Tinder in Hawkins and by Defendant KMC in its brief, is easily distinguished from the case at bar. There, an employee sued her employer and the union, claiming, inter alia, breach of the duty of fair representation. The plaintiff in Filippo filed eight grievances which formed the basis of her complaint against the employer and the union. Id. at 747. The Seventh Circuit found that "[o]ur review of the record does not suggest that the Union acted arbitrarily in its pursuit or resolution of Filippos' grievances." Id. at 749. Thus, the Court concluded that plaintiff's LMRA claims against the union and the employer could not be maintained. Here, Plaintiffs do not claim that the Union breached any duty of fair representation. Plaintiffs filed no grievances. This case, unlike Filippo, is not a "hybrid" action. In a straightforward 301 action such as the case at bar, there is no need to establish a breach of the duty of fair representation. Prudden v. E.J. Brach Corp., 946 F. Supp. 572, 576 (N.D. Ill. 1996) ("the union breach of duty element is wholly absent from straightforward 301 actions.") (citing Hoosier Cardinal; Home Elevator). Plaintiffs here are not required to establish a breach of duty by the Union in order to maintain their 301 claims against KMC. KMC also cites Beck v. Caterpillar, Inc., 50 F.3d 405 (7 th Cir. 1995); Woosley v. Avco Corp., 944 F.2d 313 (6 th Cir. 1991); and Communications Workers of America v. AT&T Co., 10 F.3d 887 (D.C. Cir. 1993), in support of its argument that the six-month statute of limitations of LMRA 10(b) applies to Plaintiffs' claims herein. All three of these cases are distinguishable. Beck involved a hybrid suit brought by an employee against his former employer for breach of the CBA and against the Union for breach of the duty of fair 14

15 representation. The Seventh Circuit correctly applied the six-month statute of limitations to the hybrid claim. Beck clearly does not control the outcome here. Woosley also involved a "hybrid" claim, although at first glance it may not be readily apparent. The employee-plaintiffs in Woosley presumably had access to the grievancearbitration dispute resolution system of the CBA; three of the six plaintiffs filed a grievance prior to institution of the lawsuit. In the case at bar, none of the Plaintiffs filed a grievance, nor could they have, as they were not members of the bargaining unit at the relevant times. In Communications Workers, the District of Columbia Circuit considered a suit brought by a union to compel an employer to engage in arbitration concerning a grievance filed on behalf of an employee. The Court engaged in the dual inquiry set forth in DelCostello, asking first whether the claim was closely analogous to a "state" cause of action, and secondly, considering whether the federal policies at stake required application of the federal limitations period. The Court concluded that a District of Columbia statute provided a close analogy to the plaintiff's claim but that the federal policy favoring the grievancearbitration dispute resolution system mandated application of the federal limitations period. The D.C. Circuit was also greatly persuaded by the fact that with regard to suits to compel arbitration, "seven other circuits have already held that the six-month federal law period created by 10(b) is significantly more appropriate than analogous state law periods." 10 F.3d at 890. An action to compel arbitration, however, differs significantly from a straightforward claim for damages arising from an employer's breach of a CBA. In the matter sub judice, the 15

16 federal policy favoring the grievance-arbitration dispute resolution system simply is not implicated. Plaintiffs here were not members of the bargaining unit and therefore had no access to that system of dispute resolution. Their only avenue for redress of their complaints against KMC was the present lawsuit. The federal policy reason for applying the federal limitations period in Beck, Woosley, and Communications Workers, therefore, does not exist in the present case. As such, the two-year Indiana limitations period governs Plaintiffs' claims. III. PLAINTIFFS' CLAIMS DID NOT ACCRUE ON THE DATE KMC SOLD THE PLANT; THEY ACCRUED WHEN PLAINTIFFS KNEW OR SHOULD HAVE KNOWN OF KMC'S BREACH OF THE CBA. Without any citation to authority, KMC argues that Plaintiffs' claims accrued "at the latest, on December 1, 1993, the effective date of the sale of the AGT Division." (Deft.'s Brief at 2.) However, the very cases cited by KMC in support of its argument that the sixmonth statute of limitations applies, hold that the employees' hybrid 301 breach of duty of fair representation claims accrued either "seven days after denial of their grievances," Woosley, 944 F.2d at 319, or when the union notified them that their appeal had been denied and that it would take no further action of their behalf, Beck, 50 F.3d at 407. Obviously, here, where no grievance, appeal, or any other action was taken or could have been taken by the union on behalf of the employees, such an accrual date is unworkable. This point lends further support to Plaintiffs' position that their claims against KMC are not hybrid claims but, 16

17 rather, are straightforward claims for breach of the CBA governed by the state limitations period. At the time of the sale of the Allison plant, many of the Plaintiffs still believed that KMC would honor its promises to them. KMC assured its salaried employees, including Plaintiffs, that if they accepted employment with Allison, they would be considered on a "special leave of absence" from KMC and would retain their rights as KMC employees. (See "Template," Exhibit A to Sixth Amended Complaint.) It was not until after the sale that it became readily apparent that KMC would not honor its commitments. It is unnecessary to engage in a lengthy analysis of each Plaintiff's accrual date to determine the timeliness of Plaintiffs' action, however. Even accepting, arguendo, that KMC's accrual date of December 1, 1993 is correct, suit was clearly filed within the two-year period prescribed by the applicable Indiana statute, Ind. Code CONCLUSION For all of the foregoing reasons, KMC's Supplemental Renewed Motion for Summary Judgment should be denied and Plaintiffs should be awarded costs incurred in opposing said motion, including reasonable attorney's fees. 17