## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 23 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT REPSTINE; BN GENERAL COMMITTEE OF ADJUSTMENT (former C&S) -- GO-291,

Plaintiffs - Appellants,

v. No. 96-1387 BURLINGTON NORTHERN, INC., a Delaware corporation; UNITED TRANSPORTATION UNION,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D.C. NO. 95-WY-764-CB)

Gordon S. Gannicott (David J. Hollander and David S traton with him on the briefs), Hollander, Lebenbaum & Gannicott, Portland , Oregon, for appellants. Charles W. Shewmake, Fort Worth, Texas (Lawrence M. Stroik, Fort Worth, Texas, and Walter J. Downing, Denver, Colorado, with him on the brief), for appellees.

Before ANDERSON, EBEL, and HENRY, Circuit Judges.

ANDERSON , Circuit Judge.1 Initially, BN and UTU were co-defendants in this ca se. Plaintiffs have

subsequently settled their claims against UTU. UTUremains a nominal defendant under Fed. R. Civ. P. 19 for the purposes of enabli ng complete relief.

2 A crew consist agreement governs the size of, and p ay terms applicable to, the crew operating each train. -2- Plaintiffs and appellants Robert Repstine and BN Ge neral Committee of Adjustment (former C & S) GO-291 appeal the grant o f summary judgment to defendant Burlington Northern, Inc. (“BN”) in this case involving the Railway Labor Act (“RLA”), 45 U.S.C. § 152. We affirm.

BACKGROUND Defendant United Transportation Union (“UTU”) is th e certified collective bargaining representative for BN employees in the c rafts or classes of trainmen, conductors, locomotive firemen, yardmen and yardmas ters. 1 Plaintiff GO-291 is one of the committees comprising UTU, and plaintiff Mr. Repstine is the chairman of GO-291. In October 1991, BN and UTU collectively bargained a new crew consist agreement applicable to all of UTU’s committees, in cluding GO-291. 2 This agreement (“1991 agreement”) incorporated a crew co nsist agreement moratorium from a previous crew consist agreement, pursuant to which a moratorium was-3-

placed on further bargaining on the agreement witho ut the express agreement of the parties. Apparently, at the time the 1991 agre ement was signed, BN verbally agreed to give UTU employees the option to later ad opt any subsequent crew consist agreement entered into by BN employees not subject to the 1991 agreement. BN claims the offer was an “all or noth ing” offer, whereby any subsequent crew consist agreement would have to be adopted on a union-wide basis or not at all. Mr. Repstine argues each indi vidual UTU committee, including his own, GO-291, retained the authority t o accept or reject any subsequent crew consist agreement. In May 1993, BN negotiated a new crew consist agree ment with certain BN employees not subject to the 1991 agreement. BN th en notified UTU in June 1993 that it could adopt the new crew consist agree ment (“1993 agreement”) on an all or nothing basis. In September 1993, UTU’s president notified BN that all of UTU’s committees had ratified the 1993 agreementexcept GO-291. The president requested that the agreement be implement ed on all UTU committees except GO-291, but BN apparently declined to do so. On October 14, 1993, UTU’s president informed BN th at a majority of its representatives had ratified the 1993 agreement and advised BN to implement the agreement on November 1, 1993, on all committees, i ncluding GO-291. Mr. Repstine, on behalf of GO-291, informed BN that GO- 291 had appealed UTU’s-4-

decision to adopt the 1993 crew consist agreement t o UTU’s Board of Directors. Mr. Repstine also told BN that GO-291 would take ac tion to nullify the agreement if UTU’s Board sustained its appeal. Under UTU’s c onstitution, the internal appeal was mandatory. See Volkman v. United Transp. Union , 73 F.3d 1047, 1056 (10th Cir. 1996) (noting that under UTU’s cons titution, “the internal appeal was not optional.”). On October 10, 1994, UTU’s Board of Directors rejec ted GO-291's internal appeal. Mr. Repstine and GO-291 filed this action against UTU and BN on April 5, 1995, alleging breach of the duty of fair representation, Railway Labor Act violations, and breach of contract. The distri ct court granted BN’s motion for summary judgment, concluding that the statute of li mitations barred plaintiffs’ claims. Plaintiffs’ claims against UTU were settle d. Mr. Repstine and GO-291 appeal the grant of summary judgment to BN. Mr. Re pstine and GO-291 members are currently employed under the terms of t he 1993 agreement.

DISCUSSION We review the district court’s grant of summary jud gment de novo, applying the same standards applied by the districtcourt. Young v. United Auto. Workers-Labor Employment & Training Corp. , 95 F.3d 992, 996 (10th Cir. 1996).-5-

Accordingly, summary judgment is properly granted w here there is no genuine issue of material fact for trial. Id. Mr. Repstine and GO-291 allege that UTU breached it s duty of fair representation; that BN violated the RLA; and that BN committed a common law breach of contract when it implemented the 1993 cre w consist agreement, in violation of the moratorium clause of the 1991 crew consist agreement. In this appeal, we address only the propriety of th e district court’s grant of summary judgment to BN. Plaintiffs’ RLA argument a sserts that BN violated 45 U.S.C. § 152, First, Second, Third, Fourth, and Ninth, by refusing to bargain in good faith and by interfering with, influencing and /or coercing GO-291, all stemming from BN’s imposition of the 1993 agreementon GO-291 without GO291's agreement or approval. As indicated, the dis trict court held that plaintiffs’ claims against BN were barred by the six-month statute of limitations, and it rejected plaintiffs’ argument that the statute of l imitations was tolled while they pursued internal union appeals.

1. Statute of Limitations for RLA Claim The RLA contains no limitations period itself. How ever, courts uniformly hold that the six-month limitations period from § 1 0(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), applies. See, e .g., Lancaster v. Air Line Pilots-6-

Ass’n. Int’l , 76 F.3d 1509, 1527 (10th Cir. 1996), abrogated by__ S. Ct. __, 1998 WL 259977 (May 26, 1998); Barnett v. United Air Lin es, Inc. , 738 F.2d 358, 362- 64 (10th Cir. 1984); see also West v. Conrail , 481 U.S. 35, 38 & n. 2 (1987). BN argues plaintiffs’ claims accrued, and the limitati ons period commenced to run, on November 1, 1993, the date the 1993 agreement was i mplemented. Plaintiffs argue the limitations period did not begin to run u ntil October 10, 1994, the date on which UTU’s Board of Directors rejected GO-291's internal union appeal, thereby exhausting plaintiffs’ internal union appea ls. If BN is correct that the limitations period was not tolled during the penden cy of the internal union appeal, plaintiffs’ claims, filed on April 5, 1995 (sevente en months later), were untimely. Plaintiffs argue that their claims are “hybrid,” wh ich we have recently described as “a judicially created exception to the general rule that an employee is bound by the result of grievance or arbitration rem edial procedures provided in a collective-bargaining agreement.” Edwards v. Inter national Union, United Plant Guard Workers of America , 46 F.3d 1047, 1051 (10th Cir. 1995) (citing Vaca v. Sipes , 386 U.S. 171, 185-86 (1967)). In a typical “hybr id” claim, an employee claiming wrongful discharge in violation of the col lective bargaining agreement argues that the “employer breached a collective-bar gaining agreement and the union breached its duty of fair representation” in connection with the grievance process the employee followed after his discharge. Id. at 1050. In such a case,-7-

the “employee’s unfair representation claim againsthis union and the underlying § 301 claim against his employer are ‘inextricably interdependent.’” Id. at 1051 (quoting DelCostello v. International Bhd. of Teams ters , 462 U.S. 151, 164-65 (1983)). As the Supreme Court has explained, in a “hybrid” action, “‘[t]o prevail against either the company or the Union, . . . [emp loyee-plaintiffs] must not only show that their discharge was contrary to the [coll ective-bargaining] contract but must also carry the burden of demonstrating breach of duty by the Union.’” DelCostello , 462 U.S. at 165 (quoting United Parcel Serv., Inc . v. Mitchell , 451 U.S. 56, 66-67 (1981)). Thus, “the case an employe e must prove against any defendant is the same.” Edwards , 46 F.3d at 1051. Special limitations rules apply to such “hybrid” cl aims. Rather than having to sue the employer within six months of the breach , and then sue the union within six months of the exhaustion of an internal union appeals, a “hybrid” claim may be tolled in its entirety until the internal un ion appeals have been exhausted. Volkman , 73 F.3d at 1054; see also Edwards , 46 F.3d at 1054. Plaintiffs argue that, since their action against BN is part of a “hybrid” claim, the six-month statute of limitations was tolled by their pursuit of their internal union appeal. BN responds that plaintiffs’ suit is not truly a “hybrid” claim because the claims against BN and against UTU are independent. The district court agreed:

Unfortunately for Repstine, his claims are not typi cal “hybrid” claims and the limitations rules that apply to typi cal hybrid actions3 UTU and its constituent committees, like GO-291, entered into a

Coordination Agreement which designated certain coo rdination committees as the “person or entity” to receive notices under the RLA , 45 U.S.C. § 152, Sixth, and to otherwise treat with BN. -8- do not apply here. In this case, Repstine’s claims are “hybrid” only in the sense that he has asserted duty of fair repr esentation claims against UTU and breach of contract claims against B N. These claims are not, however, “inextricably interdependent.” Order at 10, Appellants’ App. at 127. We agree as well. While, as plaintiffs assert, they challenge conduct of both UTU and BN s urrounding the implementation of a contract involving both UTU and BN, the district court correctly observed that they challenge “two courses of action that at times overlap, but which essentially are independent.” I d. at 128. Plaintiffs’ claims against UTU, now settled, essent ially involve, as the district court found, “an intra-union dispute over UTU’s obligations to GO-291 and UTU’s authority over GO-291.” Id. at 129. They involve plaintiffs’ claim that UTU violated the Coordination Agreement betwee n UTU and GO-291 and that UTU violated its constitution by first telling BN it should implement the 1993 agreement on all southern lines except GO-291 and then telling BN it should implement it on all southern lines including GO-291 , despite GO-291's objection. 3 None of those claims necessitate proof that BN viol ated the collective-bargaining agreement.4 In their complaint, plaintiffs asserted that BN’s “ unilateral implementation

of the Crew Consist Agreement on members of GO-291 constituted an unlawful interference with, influence and/or coercion of the UTU.” Complaint ¶ 32, Appellants’ App. at 18.

5 In support of its determination that plaintiffs’ cl aims were not true “hybrids,” the district court considered the type o f relief plaintiffs could expect from each set of claims. As the court explained: If Repstine prevails on his claims against UTU, he might obtain declaratory relief and attorneys fees. Practically speaking, the Court would issue a judgment stating that UTU had violate d its agreements with GO-291 and its constitution by failing to insi st that BN deal (continued...) -9- Similarly, plaintiffs’ claims against BN involve al legations of improprieties committed by BN unilaterally in connection with its implementation, over GO291's objection, of the 1993 agreement. 4 Cf. Garcia v. Eidal Int’l Corp. , 808 F.2d 717, 721 (10th Cir. 1986) (“Because [the employer] allegedly acted unilaterally, its potential liability . . . is properly viewed as distinct from that of the union.”). Plaintiffs have conceded that their complaint did n ot allege any collusion or conspiracy between BN and UTU in connection with th e implementation of the 1993 agreement. Rather, it alleges separate and di screte legal claims against both UTU and BN. While, as we have indicated, the claim s all relate generally to the implementation of the 1993 agreement, to which both BN and UTU acceded, each defendant’s particularcourse of conduct was pursued separately and invol ved different allegedly unlawful conduct, and any damag e flowing therefrom would be redressed separately. 55 (...continued)

directly with GO-291, and by endorsing the new crewconsist agreement on behalf of all Southern Lines committee s. As is evident, this relief neither implicates nor affects BN. Along these same lines, if Repstine prevails on his claims against BN, he might obtain declaratory and injunct ive relief. Practically speaking, the Court would issue a judgm ent stating that BN had violated the collective bargaining agreement(and the RLA) and would enjoin BN from imposing the new crew cons ist agreement on GO-291. As is evident, this relief neither impl icates nor affects UTU or the other Southern Lines committees. Such r elief would not and could not alter the Court’s assessment of Repst ine’s claims against UTU (claims involving intra-union agreement s and the UTU constitution). Order at 12-13, Appellants’ App. at 130-31. -10- Indeed, plaintiffs settled their claims with UTU, y et their claims against BN evidently still proceed. We observed in Edwards that the employee’s hybrid “suit against the Union cannot exist independently of his wrongful discharge grievance against [his employer].” Edwards , 46 F.3d at 1052. That is apparently not the case here. In fact, plaintiffs moved for summary j udgment against BN alone and never sought summary judgment against UTU. Moreover, as we stated in Edwards , in a typical “hybrid” case involving wrongful discharge, “the ultimate wrong is that of the employer.” Edwards , 46 F.3d at 1051. In this case, by contrast, the “ulti mate wrong” is not that of BN.6 For instance, plaintiffs could have no claim against BN, because there was

no argument that BN violated the collective bargain ing agreement in offering the 1993 agreement to UTU, yet they could still pursue their claim against UTU, asserting that UTU’s conduct violated its own const itution and the Coordination Agreement with plaintiffs. Similarly, as plaintiff s conceded at oral argument, they could have brought their claims directly again st BN, without including any claims against UTU.

7As indicated supra , the UTU constitution requires exhaustion of internal appeals: [The UTU constitution] provides that no member “sha ll resort to the civil courts to correct or redress any alleged grie vance or wrong, or (continued...) -11- Plaintiffs’ claims against both UTU and BN equally allege an “ultimate wrong.” Either set of claims could stand without the other. 6 Plaintiffs rely heavily on Volkmanfor their argument that the statute of limitations in their action against BN should have been tolled pending their pursuit of internal union appeals. In Volkman , employees of a railroad sued the same union as in this case (UTU) as well as the rai lroad/employers, arguing that UTU breached its duty of fair representation and th at the railroad had violated a labor protective agreement, all in connection with the negotiation of the agreement implementing the labor protective agreeme nt. We evidently assumed without specific discussion that the employees’ cla im was a “hybrid” to which the six-month statute of limitations applies, and then considered whether the statute should have been tolled pending the employees’ purs uit of mandatory internal union appeals. 7The district court opinion makes it clear that th e claim was a7 (...continued)

to secure any alleged rights” from the union until the member “shall have first exhausted all remedy by appeal provided in this Constitution for the settlement and disposition of any such rights, grievance, or wrongs.” Volkman , 73 F.3d at 1056.

8 The court referred to evidence indicating “[t]he de ceptive and conspiratorial conduct of defendants.” Volkman , 724 F. Supp. at 1309.

9 In Volkman , we acknowledged that in a hybrid breach of duty o f fair representation and breach of contract case “ordinar ily, a plaintiff must exhaust internal union appeals before filing suit, and the statute of limitations is tolled during those appeals.” Volkman , 73 F.3d at 1054. However, we noted that there is no bright line rule. We discussed and cited Fra ndsen v. Brotherhood of Ry., Airline & Steamship Clerks, Freight Handlers, Expre ss and Station Employees , 782 F.2d 674 (7th Cir. 1986). In Frandsen , the court held “that the statute of limitations is tolled against both the union and th e railroad while the employee pursues internal union remedies, even if those admi nistrative appeals are futile, as long as the employee makes a duty of fair represent ation claim based on a collusion of union and employer .” Id. at 686 (emphasis added). Thus, the joint and interdependent nature of the union’s and the employer’s conduct must be evident for the tolling rule to apply. That joint and interdependent conduct was present in Frandsenand in Volkman , as it is in a typical “hybrid” claim, but is not (continued...) -12- “hybrid” claim, and it also makes clear the joint a nd collusive nature of the defendants’ conduct. Volkman v. United Transportat ion Union , 724 F. Supp. 1282, 1309, 1317 (D. Kan. 1989), rev’d , 73 F.3d 1047 (10th Cir. 1996). 8 In this case, by contrast, we have concluded that p laintiffs do not present a true “hybrid” claim. We therefore need not conside r whether Volkmancompels the conclusion that UTU’s mandatory internal union appeal process requires us to toll the statute of limitations for a hybrid claim against the employer. 99 (...continued)

present here. Similarly, plaintiffs urge us to follow Lancaster v . Air Line Pilots Ass’n. Int’l , 76 F.3d 1509, 1528 (10th Cir. 1996), abrogated by__ S. Ct. __, 1998 WL 259977 (May 26, 1998), in which we cited Volkmanfor the proposition that “[i]f the objecting employee . . . pursues his nonjudicia l remedies in good faith, the limitations period is tolled until the nonjudicial proceedings are completed.” In Lancaster , the union asked the employer to terminate the emp loyee for failing to pay a strike assessment, as apparently required by the collective bargaining agreement. Like Volkmanand Frandsen , the interdependent nature of the conduct of both defendants—the union and the employer—was e vident. Tolling of the entire claim, as in a typical “hybrid” claim case, therefore made sense. As indicated, this is not the case here, where the con duct of, and the claims against, each defendant are distinct.

10 The district court rejected an argument plaintiffs apparently made based on a claimed violation of the Merger Protection Agr eement. The court found no reference to such a claim in plaintiffs’ complaint, and concluded, additionally, that the Agreement’s procedural requirements and arbitration provisions rendered the court unable to consider the claim. On appeal, plaintiffs do not pursue the (continued...) -13- 2. Common Law Breach of Contract Claim Plaintiffs also allege that “BN breached the terms of the 1991 Crew Consist Agreement, in particular the moratorium clause, by implementing the 1993 Crew Consist Agreement on Plaintiffs.” Appellants’ Open ing Br. at 21. They argue that this constitutes a common law breach of contra ct, subject to Colorado’s three year statute of limitations. As BN argues, plainti ffs failed to include this claim in their complaint, nor did they argue it before the d istrict court in their filings in opposition to BN’s motion for summary judgment, nordid the district court address it. 10 We decline to address an argument presented for t he first time on10 (...continued)

argument based on the Merger Protection Agreement, but they do assert the more general common law breach of contract claim.

11 Because we affirm the district court’s judgment on statute of limitations grounds, we need not address BN’s argument that pla intiffs have manifested acceptance of the 1993 agreement. -14- appeal. Swanson v. Guthrie Indep. Sch. Dist. , 135 F.3d 694, 698 (10th Cir. 1998). 11

CONCLUSION For the foregoing reasons, we AFFIRM the district c ourt’s decision granting summary judgment to defendant BN.