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Frandsen v. Brotherhood of Railway


January 24, 1986


Appeal from the United States District Court for the Southern District of Illinois. No. 84 C 3067 -- James L. Foreman, Judge.

Author: Flaum

Before CUMMINGS, Chief Judge, BAUER, and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

This case presents an issue of first impression for this court concerning a union's duty of fair representation. The plaintiff here sued his union and employer two years after a change of employers resulted in a loss of his seniority rights. The district court ruled that under the Supreme Court's decision in DelCostello v. Teamsters, 462 U.S. 151, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983), the plaintiff's complaint had not been timely filed within the six-month statute of limitations. The plaintiff argued that under Clayton v. UAW, 451 U.S. 679, 101 S. Ct. 2088, 68 L. Ed. 2d 538 (1981), the exhaustion of internal union remedies was normally a prerequisite to a duty of fair representation suit and that in this case, since exhaustion was required and pursued, the statute of limitations was tolled. The district court found that the plaintiff's exhaustion of internal remedies was "futile" and thus would be excused under the "futility" exception recognized in Clayton. The district court held that when exhaustion is not required under Clayton, there is no reason to postpone the litigation, and therefore the statute of limitations was not tolled.

We reconcile these two Supreme Court doctrines in favor of exhaustion of intra-union remedies and reverse and remand the district court's holding for the union and the railroad-employer.


In March 1982, the defendant Missouri Pacific Railroad Company ("MOPAC") received approval from the Interstate Commerce Commission to purchase approximately seventy miles of railroad track between Pana and Mitchell, Illinois that the Consolidated Rail Corporation ("Conrail") was abandoning.*fn1 The nine Conrail employees, including the plaintiff H. Jack Frandsen, who worked on this stretch of railroad, were represented by the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees ("BRAC"). BRAC also represented 195 MOPAC employees in that company's St. Louis Terminal District 24, into which the Conrail line was to be merged.

H. Jack Frandsen has been a railroad employee and member of the defendant union BRAC since 1944. In 1982 he was working as a signal-block operator in Mitchell, Illinois for Conrail. Because of his thirty-eight years of seniority with Conrail, Frandsen had the right to remain employed by Conrail by "bumping" into other positions at Conrail occupied by employees with less seniority. Under traditional BRAC practices, Frandsen could also choose to keep his old job, but work for the new employer, MOPAC, who purchased the section of track he worked on. Accordingly, BRAC entered into negotiations with MOPAC, which culminated in an agreement on April 15, 1982 that offered the nine Conrail employees, including Frandsen, employment with MOPAC. The Agreement provided that the Conrail employees accepting MOPAC's employment offer were to have "prior rights" to their current positions,*fn2 which meant that they would receive a MOPAC seniority date of April 16, 1982, which gave them the option of displacing any employee who was hired after that date.

But at the time Frandsen had to make a choice, this agreement was not yet finalized. In exercising his choice of whether to stay with the same employer in a new job or to stay in his old job with a new employer, seniority considerations were crucial for Frandsen, because if he left Conrail to work for MOPAC without "dovetailing" protection, he would forfeit all of the seniority rights that he had accumulated at Conrail.*fn3 Frandsen had heard that MOPAC proposed to allow dovetailing, and this understanding was supported by Al Archual, the BRAC General Chairman for Conrail. Yet it was not until the night of April 15, 1982, just before he had to choose whether to switch employers or switch jobs, that plaintiff was allegedly assured by the local MOPAC Chairman, R. L. Teahan, that an agreement providing for dovetailing had been adopted.

The next day, after Frandsen had chosen to go with MOPAC, he found out that rather than being "dovetailed" by the Agreement, he would be "endtailed": his seniority would begin that day, April 16, 1982, so that he would have less seniority than the most junior MOPAC employee.*fn4

On May 10, 1982, five of the transferred Conrail employees, including Frandsen, appealed to BRAC President R.I. Kilroy and protested the terms of the April 15 Agreement. Subsequently, believing that Kilroy was delaying a decision on the appeal, the five former Conrail employees wrote to him on July 12 and again on July 19, 1982, indicating that they were prepared to file a lawsuit if necessary. On the same day, July 19, 1982, Frandsen reviewed a letter from Kilroy to Frandsen's Local Chairman Robert L. Teahan, which distinguished the internal union appeal procedures for protesting the manner in which a grievance was handled from those procedures required to achieve a change in a negotiated collective bargaining agreement. By the next day, two of the five, but not Frandsen, had retained counsel.

Kilroy did not directly respond to their appeal until August 25, 1982, when he held that the April 15 Agreement was fair under the circumstances and complied with the intent and the purpose of the BRAC Constitution. Frandsen appealed that decision to BRAC's International Executive Council on September 3, 1982. By October 11, 1982 Frandsen felt that his appeal was not being ruled on promptly and wrote to the Secretary of BRAC's Executive Council to protest the delay. In that letter Frandsen stated that he had "reviewed the Constitution of the Grand Lodge and [was] aware that certain appellate procedures must be followed before outside action was taken. However, in the event irreparable harm may occur . . . as a consequences of the slowness of the appeal procedure built into the International Constitution, it is possible that other action may be necessary."

No union officer at any time directly sought to correct Frandsen's misconception that intra-union exhaustion was required, and it was not until September 23, 1983, eleven months after Frandsen filed his appeal to the Executive Council and more than ten months following his letter to the Secretary implying that he might be forced to take "outside action," that the Executive Council voted to sustain President Kilroy's decision.

On March 7, 1984, less than six months from the formal ruling of the Union's International Executive Council, Frandsen filed this action. In his complaint Frandsen alleged that BRAC, BRAC's General Chairman for MOPAC, T.W. Taggart, Jr., and BRAC's International President, R.I. Kilroy, had breached the duty of fair representation they owed to him by negotiating an agreement that deprived him of almost forty years of seniority. Frandsen further contended that MOPAC had conspired with BRAC to deprive him of his seniority and thus that MOPAC shared in BRAC's liability.

BRAC subsequently moved for summary judgment, alleging (1) that Frandsen's cause of action accrued on April 16, 1982 when he became aware of the terms of the April 15 Agreement and, therefore, that his claim was barred by DelCostello's six-month limitation period, and (2) that on the merits Frandsen's complaint failed to state a claim for breach of the duty of fair representation.

The district court granted BRAC's motion for summary judgment in an opinion reported at 601 F. Supp. 941. The court held that under DelCostello, Frandsen's complaint had not been timely filed within six months after his cause of action accrued on April 16, 1982. The district court thoroughly analyzed the issue and recognized that under Clayton, the exhaustion of internal union remedies was normally a prerequisite to a duty of fair representation suit unless exhaustion would not promote private resolution of the dispute. If exhaustion is required by the circumstances of the case, then the six-month statute of limitations is tolled during the pendency of the intra-union proceedings. The district court asserted, however, that when exhaustion is not required, there is no reason to toll the statute and thus postpone the litigation. The court stated, "In other words, if the plaintiff reaps the benefit from the no exhaustion rule, he must also pay the costs." 601 F. Supp. at 944.

Applying this analysis to the facts before him, the judge decided that when the alleged breach consists not of a failure to process a grievance, but rather of improper negotiation of an agreement, the internal remedy cannot possibly afford aggrieved employees the relief sought in the litigation, because effective relief would require modification of the collective bargaining agreement. Thus, according to the district court, exhaustion would be excused under the Clayton "futility" exception in every case of this kind. Although the district court recognized that unions can sometimes renegotiate contracts, it reasoned that if the mere possibility of renegotiation meant that exhaustion was not futile, the entire futility exception would evaporate, and that the Supreme Court could not have intended such a result. Moreover, the court was not convinced "that the slight possibility of nonjudicial resolution resulting from the pursuance of futile internal union remedies outweighs the need for a quick and complete judicial resolution." Accordingly, the district court concluded that "pursuance of internal union remedies which cannot afford the grievant complete relief does not toll the six-month statute of limitations." 601 F. Supp. at 945. Frandsen now appeals the district court's grant of summary judgment for the defendants.


This case presents a tension between policy and procedure and calls for this court to "fine-tune" the interrelationship of two distinct legal doctrines. Thus, it is necessary at the outset to review the policy underlying the duty of fair representation and the two procedural rules that channel the resolution of claims alleging that the duty has been violated. These two procedures involve the exhaustion of internal union remedies and the statute of limitations governing when claims can be brought. Traditionally, the purpose of the exhaustion doctrine has been to encourage private rather than judicial resolution of disputes. Clayton, 451 U.S. at 689. The purpose behind the six-month statute of limitations is a rapid resolution of labor disputes. DelCostello, 462 U.S. at 168. While these two goals are not necessarily mutually exclusive, they appear to conflict when internal union procedures take longer than six months.

A union's duty of fair representation to its members is not set forth in any labor statute. Rather, it is the result of judicial interpretation of federal labor policies. See, e.g., DelCostello, 103 S. Ct. at 2290, (:[the duty] is implied under the scheme of the National Labor Relations Act");*fn5 Vaca v. Sipes, 386 U.S. 171, 182, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967) (the duty stands "as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law"). These policies are the products of a legal system that places a high value on the rights of the individual but that nevertheless makes collective bargaining the centerpiece of its national labor policy. As the courts have recognized, the duty of fair representation arises out of the collective bargaining scheme, which gives a majority of employees in an appropriate bargaining unit the right not only to choose a representative for purposes of collective bargaining, but also to impose its choice on all employees in the unit, depriving the minority of the right to bargain for itself. See, e.g., Emporium-Capwell Co. v. Western Addition Community Organization, 420 U.S. 50, 43 L. Ed. 2d 12, 95 S. Ct. 977 (1975); Section 9, National Labor Relations Act ("NLRA"), 29 U.S.C. § 159; Section 2, Fourth and Ninth, Railway Labor Act ("RLA"), 45 U.S.C. § 152.

With such exclusive and collective authority comes a responsibility to the individuals whose bargaining rights are correspondingly limited. As the Supreme Court recognized in Steele v. Louisville & Nashville R.R., 323 U.S. 192, 198-99, 89 L. Ed. 173, 65 S. Ct. 226 (1944), unions must be duty-bound to exercise in a fair manner the statutory power to bargain on behalf of all employees. In addition, because the collective representative often controls the individual's access to the grievance system, the Court ruled that the duty of fair representation extends to the union's exercise of this power of access as well. See Hines v. Anchor Motor Freight, 424 U.S. 554, 47 L. Ed. 2d 231, 96 S. Ct. 1048 (1976); Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967).

In Clayton the Supreme Court addressed the relationship between the policies requiring that a judicial forum be available to enforce the duty of fair representation and the conflicting national labor policy of encouraging nonjudicial resolution of labor disputes. The Court made clear that in most cases exhaustion of union remedies should be required in order to advance the policy of nonjudicial resolutions. But where intra-union remedies were not adequate to redress the employee's grievances, where "the member [may] become exhausted instead of the remedies," NLRB v. Marine Workers Local 22, 391 U.S. 418, 425, 20 L. Ed. 2d 706, 88 S. Ct. 1717 (1968), it would be unfair to the employee to insist that internal union remedies be exhausted before going to court. The Court in Clayton reiterated that district courts have discretion to decide whether to require exhaustion of internal union procedures and said:

In exercising this discretion at least three factors should be relevant: first, whether union officials are so hostile to the employee that he could not hope to obtain a fair hearing on his claim, second, whether the internal union appeals procedures would be inadequate either to reactivate the employee's grievance or to award him the full relief he seeks under § 301; and third, whether exhaustion of internal procedures would unreasonably delay the employee's opportunity to obtain a judicial hearing on the merits of his claim. If any of these factors are found to exist, the court may properly excuse the employee's failure to exhaust.

Clayton, 451 U.S. at 689.

It is important to note that this "futility exception" was designed because it would be unfair to the union member, not the union, to insist on exhaustion of futile internal remedies. The Supreme Court balanced the policies favoring exhaustion against the policies favoring an employee's right to obtain quick judicial protection against arbitrary union conduct and concluded, in the context of futile union remedies, that the latter policy outweighed the former. After Clayton, then, the union member clearly must exhaust unless an intra-union appeal is demonstrably futile, in which case he or she has every incentive to file suit without delay. If a union wishes to move the member's grievance into the courtroom, it merely need rapidly determine the intra-union appeals to fulfill the exhaustion requirement.*fn6

The problem of delay was further addressed by the Court's choice of a statute of limitations for duty of fair representation claims. The Supreme Court was forced to chose a statute of limitations in DelCostello because Congress did not specify one for duty of fair representation claims. The Court had first decided in United Parcel Service v. Mitchell, 451 U.S. 56, 67 L. Ed. 2d 732, 101 S. Ct. 1559 (1981), that among possible state statutes, the limitation period for seeking to vacate an arbitration award was the most analogous one. The alternatives, such as tort contract limitations, were simply too long. Many of those alternatives often allowed as long as six years to pass before filing suit. In DelCostello, the Court ruled that the 90 day period generally used for vacating arbitration awards was too short to give employees a fair chance to assert a duty of fair representation claim, given the hardships inherent in bringing such actions.*fn7 Instead, it adopted the six-month limitation period that Congress provided for filing an an administrative charge with the National Labor Relations Board. Section 10(b), NLRA, 29 U.S.C. § 160(b). In doing so, the Court struck a balance between the national interest in expediting the resolution of labor disputes, and the claimant's interest in obtaining a resolution of his claim on the merits, and concluded that the balance was similar in the contexts of both section 10(b) and duty of fair representation suits.

Clayton and DelCostello, read together, envisage the following scheme: an employee seeking to vindicate his right to fair representation has six months from the date of his injury to file suit in federal court. At the same time, however, he must pursue internal union procedures that possibly may provide him with a remedy. Thus, during the pendency of those union procedures, the six-month statute of limitations is tolled, to commence running only when the union procedures are exhausted. The question remains, however, how to handle the employee who pursues union procedures are exhausted. The question remains, however, how to handle the employee who pursues union procedures that are futile. Should the statute of limitations be tolled where Clayton relieves the employee of the exhaustion requirement? The existence of this unresolved question leaves the injured employee with a dilemma. If the employee does not exhaust internal union remedies, he can be certain that the defendant union will argue that this requires dismissal of the action. On the other hand, if the employee does pursue those remedies he knows that the union will argue that exhaustion would have been futile, and therefore that the statute of limitations should not be tolled during the time it took the employee to exhaust. This is the "Catch 22" that Frandsen alleges he is caught in. He argues that under the district court's holding, if Clayton doesn't get him, DelCostello will.


We resolve this problem by reversing the district court and holding that the DelCostello statute of limitations is tolled by the pursuit of internal union remedies, even where those remedies are ultimately determined to have been futile. Our reasons are simple. First, the district court's rule would contravene the national labor policy of encouraging workers to pursue internal union remedies, while ensuring them a judicial forum in which to resolve disputes. The Supreme Court did not change this policy disputes. The Supreme Court did not change this policy in Clayton, but merely made an exception to the general rule for situations in which pursuing those internal remedies would be futile. Clayton, 451 U.S. at 693; see also Kross v. Western Electric Company, 701 F.2d 1238 (7th Cir. 1983). This exception is designed to confer a benefit to the employee, and there is no language in Clayton, or in any other Supreme Court case, that suggests the worker must pay a cost to get this benefit. It may even be unwise to call the Clayton exception a benefit when the worker has a right to a federal forum that Congress delays only for policy reasons. As we discussed in section II of this opinion, the core of the duty of fair representation is to protect the rights of individuals that are limited by the NLRA. Clayton was not designed to further frustrate access to a federal forum that the national labor policy already compromises.

DelCostello 's six-month statute of limitations lengthened the amount of time a worker had in most states to file a claim in court after exhausting internal union appeals. This too can be called a benefit to the worker, but again there is no necessary and corresponding cost to the worker, other than the expense of federal litigation. The reason the Supreme Court granted workers the benefit of a longer statute of limitations was its recognition that the individual employee usually had to make a decision of whether and when to file while unrepresented by counsel, while unemployed, and after having been abandoned by the very organization he expected to represent his best interests: his Brotherhood, the Union. A rule forbidding tolling in situations such as this, therefore, would turn the purpose of Clayton and DelCostello on its head by making it more difficult to pursue a duty of fair representation claim in federal court.

Second, the defendant's scheme is unworkable in practice because it is not always easy to tell whether or not pursuing an internal union remedy is futile.*fn8 In hindsight it may seem perfectly clear whether or not a claim could have been resolved by the union itself. But that clarity may be illusory to the layman in the midst of unfolding events. In Clayton the Supreme Court did not lay down a bright-line rule for when exhaustion of internal remedies was not necessary. The Court did not limit the possible exceptions to the three that it listed and stated that if events appeared to require immediate resolution, "the court may properly excuse" exhaustion. 451 U.S. at 689. Whether or not to excuse exhaustion is a matter of discretion for the district court, and as our frequent opinions on the topic make clear, there is nothing clear-cut about the factors that will excuse exhaustion. See Vallone v. Teamsters Local 705, 755 F.2d 520 (7th Cir. 1984); Lewis v. Laborers Local 100, 750 F.2d 1368, 1380-81 (7th Cir. 1984); Kross, 701 F.2d at 1246; Rupe v. Spector Freight Systems, 679 F.2d 685 (7th Cir. 1982); Miller v. General Motors, 675 F.2d 146; Battle v. Clark Equipment Company, 579 F.2d 1338, 1343 (7th Cir. 1978). The different factors and fact patterns in these cases, which represent just a few of the exhaustion disputes in this circuit alone, make it clear that it is virtually impossible to predict when the futility exception will apply. See generally Gibbs, Siegel and Levy, Employee and Union Member Guide to Labor Law, 8-82 (1984). Whether or not Frandsen's intra-union appeal was futile, therefore, represents a distinction too problematic to be the determinative question in each case of this kind.*fn9

Moreover, we have made clear that under Clayton, exhaustion can, and often should, be required even if the internal review procedure could not afford the claimant the full relief sought in the lawsuit. See Koss, 701 F.2d at 1246; Miller, 675 F.2d at 149. In Koss and Miller we reasoned that if partial relief is obtained, the marginal increase in relief obtained in litigation may not be worth the corresponding increase in expense and risk. The intra-union grievance system may also persuade the member that a claim is not so strong as it might have seemed, or may produce a genuine compromise. The pursuit of a nonjudicial procedure may, if perceived as fair, have a conciliatory or therapeutic value that lessens the employee's perceived need to file suit. As the Supreme Court said in Alexander v. Gardner-Denver Co., 415 U.S. 36, 55, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974):

An employee thus has an incentive to make available the conciliatory and therapeutic processes of arbitration which may satisfy an employee's perceived need to resort to the judicial forum, thus saving the employer the expense and aggravation associated with a lawsuit. For similar reasons, the employee also has a strong incentive to arbitrate grievances, and arbitration may often eliminate those misunderstandings or discriminatory practices that might otherwise precipitate resort to the judicial forum.

Exhaustion may thus avoid litigation even if it cannot provide "complete relief." In addition, exhaustion gives the union's political processes an opportunity to resolve internal disputes without outside interference, and thus, in the long run, improves the union's overall representation of its members.

Finally, the district court's solution in this case may have adverse repercussions for the judicial system. Despite the advantages obtained when exhaustion may be excused under Clayton, a court that considers excusing exhaustion in a particular case, in order to allow a claim to be heard, would have to recognize that such a ruling would have the effect of forbidding exhaustion in like cases, because the statute could not be tolled.

The discretionary exhaustion standard formulated by the Supreme Court in Clayton, and reaffirmed by this court, is itself a reason to err on the side of exhaustion because if the employee gambles incorrectly in a close case, the suit will be dismissed. Thus, the safe bet is to exhaust. See Monroe v. UAW, 723 F.2d 22, 26 (6th Cir. 1983). the district court's rule would shift the incentives in the opposite direction and thus possibly increase the number of duty of fair representation cases filed. An employee would recognize that if a court ultimately ruled that exhaustion was not required, a suit filed after exhaustion would inevitably be dismissed as untimely. If a court ruled that exhaustion was required, the consequences probably are far less severe. If such a suit were stayed, as the Supreme Court has said it should be, nothing but time would be lost: even if a case were dismissed, it could theoretically be refiled once the required exhaustion was completed. The district court's rule could lead to a flood of cautionary litigation, see Scott v. Teamsters Local 863, 725 F.2d 226, 230 (3d Cir. 1984), thereby undermining the very policy behind the exhaustion doctrine. See also Billings v. Chicago, Rock Island and Pacific Railroad Co., 581 F.2d 707, 711 (8th Cir. 1978).

For these reasons we hold that the six-month statute of limitations mandated by DelCostello is tolled until intra-union remedies are exhausted, even if those remedies are ultimately determined to have been futile.


As in the case in most duty of fair representation disputes, Frandsen claims that his employer, MOPAC, is liable to him as a party to BRAC's alleged duty of fair representation breach. Unlike the usual hybrid duty of fair representation claim, however, the plaintiff does not bring a direct claim against his employer based on section 301 of the LMRA, 29 U.S.C. § 185, because section 301 does not apply to employers, such as MOPAC, who are subject to the Railway Labor Act ("RLA"). Therefore, while the typical section 301 claim against the employer could proceed separately from the claim against the union, the allegation here is merely that MOPAC is a party to BRAC's breach. Thus, as the district court observed, if the claim against BRAC is dismissed, the claim against MOPAC must also be dismissed. United Independent Flight Officers, Inc. v. United Airlines, Inc., 756 F.2d 1274, 1283 (7th Cir. 1985). The question that must be answered here is if the claim against BRAC is allowed, must the claim against MOPAC also be allowed to proceed? In this case the answer is yes.*fn10

The railroad-employer argues that Frandsen should have grieved against it through the procedures set up by the RLA, and therefore that Frandsen's failure to do so requires us to hold that the six-month statute of limitations bars his claim. We disagree and conclude that Frandsen did not have to pursue his grievance against the railroad in order to toll the statute of limitations against both the remedies. There are two reasons for this holding. First, Frandsen's fair representation claim is not a "minor dispute" that can be grieved directly to the railroad and then to the National Railroad Adjustment Board. Second, tolling the statute of limitations against both the union and the employer furthers the national labor policies articulated in Clayton and DelCostello.

Frandsen's claim is not of a type that the Railway Labor Act procedures resolve. The Railway Labor Act establishes a mandatory procedure for resolving certain disputes between a rail carrier and its employees. Although the Act does not label the type of dispute that can be resolved by its procedures, the term "minor dispute" is commonly applied. Elgin, Joliet and Eastern Railway v. Burley, 325 U.S. 711, 722-24, 89 L. Ed. 1886, 65 S. Ct. 1282 (1945). The statutory definition for such "minor disputes" appears in section 3 of the Act which covers disputes "between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions." 45 U.S.C. § 152, First (i) (emphasis added). Thus, "minor disputes" are controversies between railroads and employees over the meaning of an existing right or application of a collective bargaining agreement in a particular factual situation. Slocum v. Delaware L. & W.R.R. Co., 339 U.S. 239, 240, 94 L. Ed. 795, 70 S. Ct. 577 (1950). But the courts will take jurisdiction over non-minor disputes requiring exhaustion of Adjustment Board remedies because those remedies would be "absolutely futile." Glover v. St. Louis-San Francisco Railroad Co., 393 U.S. 324, 330, 21 L. Ed. 2d 519, 89 S. Ct. 548 (1969). See also Sisco v. Consolidated Rail Corp., 732 F.2d 1188, 1190-91 (3d Cir. 1984).

Our task is to decide how to characterize the dispute raised in Frandsen's action. Frandsen alleges that the railroad conspired with the union to breach the duty of fair representation owed him.*fn11 A fair representation claim, regardless of its factual context, is by definition a "non-minor" dispute since it involves the implied statutory relationship between a union and those it represents rather than the actual contractual relationship over which the NRAB has jurisdiction.

Second, the national labor policy specifically rejects the notion that an employer is treated unfairly by not having separate proceedings initiated against it. Under the LMRA, for example, the Supreme Court has expressed reservations about having different temporal limitations for the union and the employer when the basic allegation is one of conspiracy or collusion between the two. In Clayton, the Supreme Court rejected the doctrine that an employee's failure to exhaust intra-union remedies gave a defense to the union but not to the employer. 451 U.S. at 695. The Court was concerned that this differentiation would force the employee to bring two separate lawsuits: first against the employer in order to beat the statute of limitations, and then, because the statute of limitations was tolled during the exhaustion of internal appeals, against the union. The Court stated that the resulting piecemeal litigation should be avoided. Id. In DelCostello, one of the reasons given by the Court for selecting the limitation period in 10(b) of the NLRA rather than one provided by state law, was that this selection would avoid "establishing different limitations periods for the two halves" of the action. 462 U.S. at 169 n.19.

As discussed in section III of this opinion, the national labor policy articulated in Clayton and DelCostello is furthered by not burdening the employee merely because he gets the benefit of tolling the statute of limitations under the LMRA. We see no reason why the employee's claim should be treated differently under the RLA, and thus we hold that the statute of limitations is tolled against both the union and the railroad while the employee pursues internal union remedies, even if those administrative appeals are futile, as long as the employee makes a duty of fair representation claim based on a collision of union and employer.

The apparent harshness of this holding toward the employer is muted because like the normal hybrid duty of fair representation/section 301 claim, the employer-railroad is a defendant here solely to permit the district court to award the plaintiff-employee full relief from the results of the union's breach of its obligations as his collective bargaining representative. Moreover, if that relief is burdensome to the railroad, it can invoke Bowen v. Postal Service, 459 U.S. 212, 74 L. Ed. 2d 402, 103 S. Ct. 588 (1983), to require the union to shoulder the responsibility for any increased costs caused by the railroad's reliance on the union's actions and by the union's failure to notify the railroad of the pending intra-union claim. Id. at 227 n.16.


Therefore, the judgment of the district court is reversed and remanded for consideration of the merits of the plaintiff's complaint against both the union and the railroad.

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