PUBLISH

UNITED STATES COURT OF APPEALS

Filed 11/15/96 TENTH CIRCUIT

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

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, Kansas, 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.
-2-

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

SEYMOUR, Chief Judge.
1Mr. Arnold’s Complaint also asserted claims against Air Midwest and its

vice-president for, inter alia, wrongful termination, defamation, and tortious

interference with his livelihood. Those claims are not at issue in this appeal.

-3-

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.
2We reject Mr. Arnold’s argument that the district court acted improperly in

converting defendants’ motion to dismiss to a motion for summary judgment. 

Notice to the parties is required to prevent unfair surprise when a judge converts a

12(b)(6) motion into a Rule 56 motion. Nichols v. United States, 796 F.2d 361,

364 (10th Cir. 1986). But “when a party submits material beyond the pleadings in

support of or opposing a motion to dismiss, the prior action on the part of the

part[y] puts [him] on notice that the judge may treat the motion as a Rule 56

motion.” Wheeler v. Main Hurdman, 825 F.2d 257, 260 (10th Cir.), cert. denied,

484 U.S. 986 (1987). Because Mr. Arnold submitted material beyond the

pleadings in opposition to defendants’ motion, he is scarcely in a position to

claim unfair surprise or inequity.

-4-

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
-5-

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.
-6-

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
3

 We stated in Lucas that “when a union represents an employee throughout

a grievance procedure, a claim challenging the adequacy of that union’s

representation normally does not accrue until the dispute resolution process has

been completely exhausted.” 909 F.2d at 421. This is so because until there is a

final adverse result in the grievance process, “the possibility exists that an

employee could be made whole by the grievance process and therefore have no

claim against his union even if his union failed to exercise due care.” Id. That

statement was made in the context of a claim that the union did not fairly

represent the employee during the grievance procedure. Here, however, Mr.

Arnold’s claim against ALPA arose out of ALPA’s proffered assistance to Mr.

Arnold in his pre-termination discussions with Air Midwest, not out of conduct of

ALPA during the subsequent grievance proceedings with the company. Lucas

recognizes that distinction. Id. at 421-22.

-7-

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 dutyof-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
4

 Our opinion in Lucas used the imprecise formulation that “accrual of [the

employee’s] claim can be tolled” by an attempt to exhaust the grievance process. 

909 F.2d at 421 (emphasis added). Edwards makes it clear that the proper reading

of this passage is that the claim has accrued, but the running of the statute of

limitations may be tolled.

-8-

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
-9-

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. 
-10-

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 district court did not

abuse its discretion in refusing to apply the equitable tolling doctrine to Mr.

Arnold’s duty-of-fair-representation claim. The district court properly dismissed

the claim as untimely.

III.

The district court held Mr. Arnold’s state law claims against both the union

and Mr. Schleder preempted by the federal duty-of-fair-representation claim, and

further held that Mr. Schleder, as an agent of the union, is immune from Mr.

Arnold’s claims arising out of Mr. Schleder’s actions taken on behalf of the

union. Mr. Arnold does not appeal the district court’s conclusion that his state

law claims against the union are preempted by his duty-of-fair-representation

claim. He contends, however, that his state law claims against Mr. Schleder are

not preempted by the federal labor laws because, as an attorney, Mr. Schleder is

not entitled to immunity as a union agent. In deciding the immunity issue, we
5

 At argument, Mr. Arnold’s counsel suggested that recent Tenth Circuit

precedent narrows the scope of preemption under the Railway Labor Act. We

have examined the cases referred to by counsel, Fry v. Air Line Pilots Ass’n, 88

F.3d 831 (10th Cir. 1996); Lancaster v. Air Line Pilots Ass’n, 76 F.3d 1509 (10th

Cir. 1996), and conclude they do not mandate a different result in this case.

-11-

must assess the extent to which Mr. Schleder’s actions were taken on behalf of

the union and in fulfillment of the union’s duty of fair representation to Mr.

Arnold. Mr. Arnold advances two main contentions: first, general immunity for

union agents should not extend to lawyers; and second, immunity does not apply

here because an attorney-client relationship existed between Mr. Schleder and Mr.

Arnold.5

Generally, a union’s agents may not be held individually liable for actions

taken on behalf of the union. Atkinson v. Sinclair Refining Co., 370 U.S. 238,

249 (1962). In Atkinson, the Supreme Court concluded Congress had expressed

its intent in section 301 of the Labor Management Relations Act that “the union

as an entity . . . should in the absence of agreement be the sole source of recovery

for injury inflicted by it.” Id. The Court stated that “[t]his policy cannot be

evaded or truncated by the simple device of suing union agents or members,

whether in contract or tort, or both, in a separate count or in a separate action for

damages.” Id. Accordingly, “[w]ith monotonous regularity, court after court has

cited Atkinson to foreclose state-law claims, however inventively cloaked, against

individuals acting as union representatives within the ambit of the collective
-12-

bargaining process.” Montplaisir v. Leighton, 875 F.2d 1, 4 (1st Cir. 1989); see

also Peterson v. Kennedy, 771 F.2d 1244, 1257 (9th Cir. 1985), cert. denied, 475

U.S. 1122 (1986).

Mr. Arnold urges that such immunity for union agents should not extend to

attorneys. Courts have consistently rejected efforts to distinguish lawyers from

other union agents for purposes of Atkinson immunity. In rejecting a malpractice

claim against a union attorney for advice given in the grievance process, the Ninth

Circuit noted that a union may use non-lawyer agents to represent its interests in

the collective bargaining process. Peterson, 771 F.2d at 1258. “Where . . . the

attorney performs a function in the collective bargaining process that would

otherwise be assumed by the union’s business agents or representatives, the

rationale behind the Atkinson rule is squarely applicable.” Id. Thus, “[a]

different result is not warranted or permissible merely because a union chooses to

employ an attorney rather than a business agent to perform collective bargaining

functions.” Id. at 1259. Regardless of the identity of the union agent, “when the

union is providing the services, it is the union, rather than the individual business

agent or attorney, that represents and is ultimately responsible to the member.” 

Id. at 1258. More recently, the Ninth Circuit affirmed that immunity for attorneys

who perform services for and on behalf of a union extends equally to in-house

and outside union counsel. See Breda v. Scott, 1 F.3d 908, 909 (9th Cir. 1993). 
-13-

The First Circuit has adopted the Peterson reasoning. See Montplaisir, 875 F.2d

at 6 (quoting Peterson extensively).

These courts have also articulated persuasive public policy considerations

that favor the extension of immunity to union attorneys. Allowing union members

to proceed against the union’s attorneys for malpractice would anomalously

subject the union’s agents to a higher standard of care than the union itself. See

Breda 1 F.3d at 909; Montplaisir, 875 F.2d at 6-7. The standard for malpractice

is negligence, but to prevail in a claim for breach of duty of fair representation, a

plaintiff must prove that the union’s conduct was “arbitrary, discriminatory, or in

bad faith.” Vaca v. Sipes, 386 U.S. 171, 190 (1967). Furthermore, because state

statutes of limitations for legal malpractice are generally longer than the six

month federal limit for hybrid actions, carving out an exception to Atkinson

immunity would frustrate the strong federal policy favoring rapid resolution of

labor disputes. See DelCostello v. International Bhd. of Teamsters, 462 U.S. 151,

168 (1983). This disparity would subject union attorneys to suit long after the

limitation period had expired against both the union and employer. Finally, it

would be inequitable to impose liability on union attorneys for what are often

“essentially political and strategic decisions of the union.” Breda, 1 F.3d at 909.

We find the rationale advanced in these cases to be well-grounded in the

Supreme Court’s precedents and well-supported by public policy. We hold that
-14-

the immunity for union agents established by Atkinson extends to lawyers, and

that an attorney who performs services for and on behalf of a union may not be

held liable in malpractice to individual grievants where the services performed

constitute a part of the collective bargaining process. That process plainly

encompasses services provided by the union in its role as exclusive

representative. Mr. Arnold’s proper remedy would have been to timely file suit

against the union on his duty of fair representation claim.

To avoid the Atkinson bar, Mr. Arnold contends Mr. Schleder acted as Mr.

Arnold’s personal representative, not the representative of the union. Mr. Arnold

might be able to proceed against Mr. Schleder if Mr. Schleder had specifically

agreed to provide direct representation to Mr. Arnold as an individual client. See

Peterson, 771 F.2d at 1261. Mr. Arnold has not alleged any such specific

agreement. “[W]here the union is providing the services, the attorney is hired and

paid by the union to act for it in the collective bargaining process.” Id. at 1258. 

This is so even when “the underlying grievance belongs to a particular union

member who has a very real interest in the manner in which the grievance is

processed.” Id. Mr. Schleder’s client was the union. Mr. Arnold’s attempt to

recharacterize Mr. Schleder’s relationship to the union is not persuasive. Mr.

Schleder was retained by the union, not by Mr. Arnold. Mr. Schleder’s services

were provided to Mr. Arnold as a benefit of Mr. Arnold’s union membership. At
6

 Mr. Arnold also contends the failure to subject union counsel to liability

under state malpractice laws is contrary to public policy because such attorneys

are effectively immunized from all liability for negligent representation. This

objection does not detain us, for we do not address here the viability of a

malpractice claim by the union against its attorney.

-15-

the time when representation was provided to Mr. Arnold by Mr. Schleder, Mr.

Schleder also provided services on behalf of ALPA to the other ALPA pilots

threatened with termination by Air Midwest. Although we must construe all

evidence in the light most favorable to Mr. Arnold, there is simply no evidence in

the record to suggest Mr. Schleder was retained by Mr. Arnold to provide direct

representation to him as an individual client. 

Mr. Arnold also suggests that Mr. Schleder’s representation was not in

connection with the performance of a collective bargaining function because at

the time of the representation no grievance had yet been initiated. We have

recognized, however, that the union’s duty of fair representation may be

implicated by actions taken outside the context of processing a grievance. Lucas,

909 F.2d at 421. The fact that Mr. Schleder’s representation of Mr. Arnold

occurred pre-termination rather than post-termination is insufficient to distinguish

it from the activity by union attorneys which has consistently been found to be

immune. See Montplaisir, 875 F.2d at 4-7 (applying Atkinson immunity to prestrike counseling).6
-16-

We hold that Mr. Schleder is immune from suit, and any claims against Mr.

Schleder are subsumed by the union’s duty of fair representation.

The judgment of the district court is AFFIRMED.