of 16 D.C. Code § 4311(b) bars it from raising any affirmative defenses in this action for confirmation. Defendant concedes that ordinarily actions to vacate or modify arbitration awards must be brought within 90 days. However, defendant argues that the 90 day limitations period should not apply when the defendant is contesting the existence of the contract or the arbitrability of the dispute. In such action, according to defendant, the statute of limitations for contract actions should apply.
In this case, defendant seeks to avoid the enforcement of the Committee's decision by arguing that the signing of the "letters of assent" was the product of mistake or fraud. In support of this allegation, defendant has submitted an affidavit from Mr. Stonebanks. This affidavit alleges that Mr. Stonebanks signed the letters of assent in an effort to retain his own union membership while working as an employee on a specific non-union job. According to Mr. Stonebanks, he was not given a copy of the letter he signed and he was not informed that it would bind him to any collective bargaining agreements in the future.
Defendant cites to no authority to support the argument that the contract statute of limitations should apply to a defense of fraud in an enforcement proceeding. However, plaintiff, with commendable candor, has brought to the Court's attention a recent Ninth Circuit case which could be read to support the defendant's position. In Fortune, Alsweet & Eldridge, Inc. v. Daniel, 724 F.2d 1355 (9th Cir. 1983), the Court of Appeals considered the defendant's claim that he had not agreed to submit a dispute to arbitration even though the statute of limitations on motions to vacate had run. The Court noted "in the case before us, Daniel failed to make a motion to vacate within 100 days after the entry of an arbitration award. Therefore, the only issue for the district court to decide was 'whether the parties agreed to arbitrate the subject in dispute.' Sheet Metal Workers' International Association, Local 252 v. Standard Sheet Metal, Inc., 699 F.2d 481, 483 (9th Cir. 1983)." Id. at 1356. The Court cited only one case in support of this holding. In that case, however, the Court held that the statute of limitations barred the company's defense and that the agreement to arbitrate was not in dispute. Thus, while the Fortune case does appear to support defendant's position, it does not contain a detailed justification of its holding. Moreover, the case is a clear departure from the weight of authority which holds that no defenses may be raised in enforcement suits which are brought after the limitations period for motions to vacate has past. Service Employees International Union, Local 36 v. Office Center Services, Inc., 670 F.2d 404, 410-12 (3d Cir. 1982); Chauffeurs Teamsters, Warehousemen and Helpers, Local 135 v. Jefferson Trucking, Co., 628 F.2d 1023, 1027 (7th Cir. 1980), cert. denied, 449 U.S. 1125, 67 L. Ed. 2d 111, 101 S. Ct. 942 (1981); Sheet Metals Workers National Pension Fund v. Metals and Machining Fabricators, Inc., 622 F. Supp. 116, 118 (D.D.C. 1985); cf. Florasynth, Inc. v. Pickholz, 750 F.2d 171 (2d Cir. 1984) (same result under the Federal Arbitration Act).
These precedents are completely in accord with national labor policy which favors industrial self-government and the speedy and final resolution of labor disputes. See supra pp. 4-5. Of course, it is true, as defendant notes, that the question of arbitrability is normally an issue for judicial determination. See AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S. Ct. 1415, 1418, 89 L. Ed. 2d 648 (1986). In this case, for example, if CWS Electric, Inc. had specifically raised the issue of fraud before the arbitrator and had then moved to vacate the unfavorable award, the court would be entitled to decide the issue of fraud in the inducement of the contract de novo. See, e.g., Local 719, American Bakery & Confectionery Workers of America v. The National Biscuit Co., 378 F.2d 918 (3d Cir. 1967). However, the fact that a defense such as fraud might be subject to a different standard of review in the district court does not suggest that it is also subject to a different statute of limitations. The strong policy in favor of a speedy resolution of labor disputes applies when the defense goes to arbitrability as well as when it goes to the substance of the arbitrator's award. While the affidavit of Mr. Stonebanks raises serious allegations which, if proven at trial, might well have required that the arbitration award be set aside, see Operating Engineers Pension Trust v. Gilliam, 737 F.2d 1501 (9th Cir. 1984), the Court cannot ignore the fact that Mr. Stonebanks failed to contest the validity of the letters of assent in court while the arbitration was in process or any time thereafter. These allegations of fraud were raised only after the plaintiff had filed for summary judgment in this enforcement action. This was too late. Moreover, there is no suggestion that the fraud was one of concealment such as might have tolled the statute of limitations. Compare Hobson v. Wilson, 237 U.S. App. D.C. 219, 737 F.2d 1, 32-42 (D.C. Cir. 1984). Accordingly, plaintiff's motion for summary judgment on the basis of the statute of limitations must be granted.
* * *
This produces a harsh result. The Court has hesitated in search of a principled basis for another result. Defendant's counsel has suggested none and the Court has discovered none. Hopefully, the plaintiff labor union will take a statesmanlike view of its claim and give generous consideration to equities which the Court can not reach. In addition, defendant may find that his arbitration counsel who failed to raise the fraud issue in that proceeding has some obligation to alleviate the heavy burden resulting from the award against him and the judgment confirming it.
For the reasons stated in the accompanying memorandum, it is this 24th day of November, 1986, hereby
ORDERED: that the defendant's motion to dismiss the complaint should be, and is hereby, DENIED; and it is further
ORDERED: that the plaintiff's motion for summary judgment should be, and is hereby, GRANTED; and it is further
ORDERED, ADJUDGED and DECREED: that the November 6, 1985 award of the Labor Management Committee is CONFIRMED and defendant shall comply with it.