Arnold v. Air Midwest Inc.

• Decision Date: 15 November 1996
• Docket Number: No. 95-3185,95-3185
• Citation: 100 F.3d 857
• Parties: DAVID ARNOLD, Plaintiff-Appellant, v. AIR MIDWEST, INC. and A.R. PAQUETTE, Defendants, and AIR LINE PILOTS ASSOCIATION, and JOHN G. SCHLEDER, Defendants-Appellees,
• Court: U.S. Court of Appeals — Tenth Circuit

Page 857

100 F.3d 857

DAVID ARNOLD, Plaintiff-Appellant, v. AIR MIDWEST, INC. and A.R. PAQUETTE, Defendants, and AIR LINE PILOTS ASSOCIATION, and JOHN G. SCHLEDER, Defendants-Appellees,

No. 95-3185

United States Court of Appeals, Tenth Circuit

November 15, 1996

Appeal from the United States District Court for the District of Kansas, (D.C. No. 93-CV-2426) Edward A. McConwell (Laura L. McConwell, with him on the briefs), of McConwell Law Offices, Overland Park, KS, for Plaintiff-Appellant.

Marcus C. Migliore (Eugene B. Granof, with him on the brief), of Air Line Pilots Association, Legal Department, Washington, D.C., for Air Line Pilots Association and John G. Schleder, Defendants-Appellees.

Before SEYMOUR, Chief Judge, PORFILIO and LUCERO, Circuit Judges.

SEYMOUR, Chief Judge.

David Arnold's employment as a pilot was terminated by Air Midwest, Inc. on November 6, 1992. Mr. Arnold brought suit against his union, the Air Line Pilots Association ("ALPA"), for breach of its federal duty of fair representation under the Railway Labor Act, and for breach of contract and of fiduciary duty arising out of alleged deficiencies in pre-termination representation. Mr. Arnold also brought claims against union attorney John G. Schleder for breach of fiduciary duty and legal malpractice, arising out of the same alleged deficiencies in representation.¹ The district court granted summary judgment in favor of defendants, holding that the six month statute of limitations had run on Mr. Arnold's duty of fair representation claim against the union, that his state law claims against the union and its attorney are preempted by federal labor law, and that Mr. Schleder is immune from suit as an agent of the union. Mr. Arnold appeals, and we affirm.

I.

This court reviews a grant of summary judgment under the same standard applied by the district court.² Summary judgment is appropriate if there is no issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). We view the evidence in the record in the light most favorable to the nonmoving party. Bohn v. Park City Group, Inc., 94 F.3d 1457, 1460 (10th Cir. 1996). Viewed in this light, the facts are as follows.

In October 1992, Mr. Arnold concluded that Air Midwest was requiring operation of aircraft in a manner contrary to aircraft specifications and federal regulations. Mr. Arnold began operating his plane in what he believed was a safe manner, contrary to Air Midwest directives. On October 19, Mr. Arnold was warned that he was in trouble for failing to achieve the set flight times, and on October 21 he was suspended. Mr. Arnold requested legal representation from ALPA, and ALPA assigned Mr. Schleder to assist Mr. Arnold in discussions with Air Midwest. Air Midwest accused Mr. Arnold of participating in a union "slow down," which Mr. Arnold denied. Mr. Arnold was advised by Mr. Schleder that, as a union representative, Mr. Schleder might have a conflict of interest if the union and Mr. Arnold made contradictory statements. Mr. Arnold expressed to union representatives his ongoing concerns about this conflict, and about his difficulty in contacting the ALPA attorneys, but he nonetheless continued to rely on Mr. Schleder.

On October 27, Mr. Arnold and Mr. Schleder met with management. After questioning by management, Mr. Arnold was informed that he would be terminated. His termination was confirmed by letter dated November 6. ALPA filed a request for reconsideration on Mr. Arnold's behalf. On November 21, Mr. Arnold informed ALPA that he had retained private counsel to represent him in the grievance proceedings. ALPA nevertheless continued to assist Mr. Arnold through the person of Mr. Schleder. When the request for reconsideration of the termination was denied January 5, 1993, ALPA filed an appeal for Mr. Arnold with the Air Midwest Systems Board, on January 28, 1993, as ALPA was required to do by the collective bargaining agreement. However, a date was never set for the Systems Board hearing. Mr. Arnold filed the instant action on October 20, 1993, asserting several claims against both ALPA and Mr. Schleder arising out of alleged deficiencies in representation from October 20 to November 6, 1992.

II.

Mr. Arnold concedes that a six month statute of limitations applies to his duty-of-fair-representation claim. See Barnett v. United Air Lines, Inc., 738 F.2d 358, 362-64 (10th Cir.), cert. denied, 469 U.S. 1087 (1984). The question here is when Mr. Arnold's cause of action accrued, and whether the running of the statute of limitations was tolled. "Where, as here, the dates on which the pertinent acts occurred are not in dispute, the date a statute of limitations accrues is . . . a question of law reviewed de novo." Edwards v. International Union, United Plant Guard Workers, 46 F.3d 1047, 1050 (10th Cir.), cert. denied, 116 S. Ct. 60 (1995). Mr. Arnold filed suit October 20, 1993. His claim is thus untimely if his cause of action accrued earlier than April 21, 1993, unless there was tolling. The district court held that Mr. Arnold's cause of action against ALPA accrued in November 1992, and that the statute of limitations was not tolled by Mr. Arnold's attempt to exhaust his remedies against Air Midwest.

The general rule is that "the limitation period begins to run when an employee knows or in the exercise of reasonable diligence should have known or discovered the acts constituting the union's alleged violations." Lucas v. Mountain States Tel. & Tel., 909 F.2d 419, 420-21 (10th Cir. 1990) (per curiam). We agree with the district court's conclusion that Mr. Arnold's claim for breach of the duty of fair representation accrued not later than November 1992. Both the alleged deficiency in ALPA's representation of Mr. Arnold, including possible conflict of interest, and Mr. Arnold's termination from employment allegedly resulting from that deficiency, were known by him no later than his receipt of Air Midwest's letter dated November 6, 1992. Mr. Arnold specifically bases his duty-of-fair representation claim against ALPA on pre-November 6 conduct. Significantly, Mr. Arnold was entitled to file suit against the union for breach of its duty to fairly represent him in the pre-grievance proceeding without first exhausting any remedies against the company. See Czosek v. O'Mara, 397 U.S. 25, 28-29 (1970).³

Mr. Arnold asserts that the statute of limitations was nevertheless tolled by ALPA's ongoing representation of him in the grievance process. We noted in Edwards that in duty-of-fair-representation cases in which "the union's alleged breach arises outside the context of processing a grievance, the employee's claim may be tolled by the employee's good faith attempt to exhaust the grievance procedures." 46 F.3d at 1054; accord Lucas, 909 F.2d at 421-22.⁴ Sound labor law policy supports tolling whenever a nonjudicial remedy might solve the labor dispute. See Adkins v. International Union of Elec., Radio & Machine Workers, 769 F.2d 330, 336 (6th Cir. 1985), cited in Lucas, 909 F.2d at 422. Reinstatement of Mr. Arnold through the grievance process would have resolved most, if not all, of Mr. Arnold's complaint against the union. The district court nevertheless held the doctrine of tolling inapplicable because it concluded that ALPA did not represent Mr. Arnold in the grievance proceedings once he hired his own attorney.

Mr. Arnold claims the trial court erred in concluding that ALPA did not continue to represent him., He maintains that although he discharged Mr. Schleder and retained private counsel, he never discharged the union from representing him. Mr. Arnold further contends the actions taken by the union on his behalf after November 6 establish that the union was engaged in his representation, notwithstanding his retention of private counsel. Viewed most favorably to Mr. Arnold, the evidence in the record suggests that Mr. Arnold did not discharge ALPA itself, and that ALPA's provision of assistance after November 6 indicates ALPA continued to represent Mr. Arnold. We note in this regard that the collective bargaining agreement requires the union to represent an employee before the Systems Board; he may not represent himself individually. Consequently the district court erred in concluding otherwise for summary judgment purposes.

Nonetheless, we agree that Mr. Arnold's duty-of-fair-representation claim was not timely filed because Mr. Arnold does not provide evidence to support tolling the statute of limitations until April 21, 1993. After ALPA filed the appeal on Mr. Arnold's behalf with the Systems Board on January 28, no hearing was ever scheduled. The record indicates that Air Midwest, ALPA, and Mr. Arnold agreed a hearing would be scheduled for a mutually convenient time beyond the normal thirty day limit. The only other evidence in the record, introduced by Mr. Arnold himself, established that on February 25, Air Midwest's counsel wrote to Mr. Arnold's counsel advising that he was still waiting for Mr. Arnold to propose a date convenient to him for the Systems Board hearing. There is no evidence that Mr. Arnold ever proposed a hearing date. The record and Mr. Arnold are utterly silent about his continued inaction after that time. Mr. Arnold asserts only that ultimate responsibility for setting a hearing lies with the chairman of the Systems Board. Under these circumstances, we do not accept Mr. Arnold's argument that the statute of limitations ought to be tolled indefinitely. We stated in Lucas that accrual of the employee's duty-of-fair-representation claim will be tolled if the employee makes a good faith attempt to exhaust grievance procedures. Lucas, 909 F.2d at 421-22. Mr. Arnold has not adduced evidence of such a good faith attempt subsequent to February 25, 1993.

"The application of equitable doctrines rests in the sound discretion of the district court." Edwards, 46 F.3d at 1055. We hold the...