ZEMONICK v. CONSOLIDATION COAL COMPANY, 796 F.2d 1546 (4th Cir. 1986)

MICHAEL ZEMONICK, ET AL., APPELLANTS v. CONSOLIDATION COAL COMPANY, A CORPORATION, ET AL., APPELLEES.

No. 84-1353.United States Court of Appeals, Fourth Circuit.Argued February 3, 1986.
Decided July 28, 1986.

Robert M. Bastress (Barbara J. Fleischauer, West Virginia University College of Law, Morgantown, W. Va., on brief), for appellants.

Robert M. Steptoe, Jr., (C. David Morrison, Steptoe
Johnson), Clarksburg, W. Va., for appellee Consolidation Coal Co.

(Michael J. Aloi, Manchin, Aloi Carrick, Fairmont, W. Va., on brief), for appellee Dist. 31, United Mine Workers of America.

Appeal from the United States District Court for the Northern District of West Virginia.

Before RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN and CHAPMAN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.[*]

PER CURIAM:

[1] The district court dismissed these hybrid § 301/DFR claims as barred by the six months limitation period established by the Supreme Court of the United States in DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476
(1983). The plaintiffs appealed to this court, and the majority of the three judge panel hearing the appeal reversed the district court, holding that DelCostello should not have been given retroactive effect in this case, and remanding the case to the district for further proceedings. Zemonick v. Consolidation Coal Co., 762 F.2d 381 (4th Cir. 1985). One member of the panel dissented, expressing the views (1) that the Supreme Court in DelCostello had already resolved the issue of retroactivity against the plaintiffs and (2) that even if it is appropriate to conduct an independent analysis of retroactivity under Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), the Chevron
factors require that DelCostello be given retroactive rather than prospective application to these facts.

Page 1547

[2] A majority of the active judges of this court subsequently voted to give en banc consideration to the issues raised by this appeal. Following briefing and oral argument, it was held that the district court did not err when it applied DelCostello
retroactively in this case and that the decision of the court should be affirmed. Since the rationale for the en banc
court’s decision is adequately reflected in the dissenting opinion in Zemonick v. Consolidation Coal Co., 762 F.2d 381, 389-397 (4th Cir. 1985), no useful purpose would be served by repeating it here. [3] AFFIRMED. [4] HAYNSWORTH, Senior Circuit Judge, with whom Judge DONALD RUSSELL and Judge DONALD RUSSELL and Judge K.K. HALL join, dissenting. [5] I dissent for the reasons set forth in the majority panel opinion in Zemonick v. Consolidation Coal Co., 762 F.2d 381, 382-89 (4th Cir. 1985).

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