### 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 o n the briefs), of McConwell Law Offices, Overland Park, Kansas, for P laintiff-Appellant. Marcus C. Migliore (Eugene B. Granof, with him on t he brief), of Air Line Pilots Association, Legal Department, Washington, D.C., fo r Air Line Pilots Association and John G. Schleder, Defendants-Appellees.-2-

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

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

vice-president for, interalia , 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 again st his union, the Air Line Pilots Association (“ALPA”), for breach of its fede ral duty of fair representation under the Railway Labor Act, and for breach of cont ract and of fiduciary duty arising out of alleged deficiencies in pre-terminat ion representation. Mr. Arnold also brought claims against union attorney John G. Schleder for breach of fiduciary duty and legal malpractice, arising out o f the same alleged deficiencies in representation. 1 The district court granted summary judgment in favor of defendants, holding that the six month statute of l imitations 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 o f the union. Mr. Arnold appeals, and we affirm.2 We reject Mr. Arnold’s argument that the district c ourt acted improperly in

converting defendants’ motion to dismiss to a motio n for summary judgment. Notice to the parties is required to prevent unfairsurprise 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 pri or action on the part of the part[y] puts [him] on notice that the judge may tre at 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 i s scarcely in a position to claim unfair surprise or inequity. -4- I. This court reviews a grant of summary judgment unde r 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 l ight, the facts are as follows. In October 1992, Mr. Arnold concluded that Air Midw est was requiring operation of aircraft in a manner contrary to aircr aft specifications and federal regulations. Mr. Arnold began operating his plane in what he believed was a safe manner, contrary to Air Midwest directives. On Oct ober 19, Mr. Arnold was warned that he was in trouble for failing to achiev e 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 adv ised 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 th is 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 withmanagement. After questioning by management, Mr. Arnold was informed that he would be terminated. His termination was confirmed by lette r 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 c ounsel to represent him in the grievance proceedings. ALPA nevertheless conti nued to assist Mr. Arnold through the person of Mr. Schleder. When the reque st 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. Howe ver, a date was never set for the Systems Board hearing. Mr. Arnold filed the in stant action on October 20, 1993, asserting several claims against both ALPA an d Mr. Schleder arising out of alleged deficiencies in representation from October20 to November 6, 1992.-6- II. Mr. Arnold concedes that a six month statute of lim itations 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 whet her 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. H is 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 acti on 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 beg ins to run when an employee knows or in the exercise of reasonable dil igence should have known or discovered the acts constituting the union’s allege d 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 late r than November 1992. Both the3 We stated in Lucas that “when a union represents an employee througho ut

a grievance procedure, a claim challenging the adeq uacy of that union’s representation normally does not accrue until the d ispute 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 proce ss 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 t he union did not fairly represent the employee during the grievance procedu re. Here, however, Mr. Arnold’s claim against ALPA arose out of ALPA’s pro ffered assistance to Mr. Arnold in his pre-termination discussions with Air Midwest, not out of conduct of ALPA during the subsequent grievance proceedings wi th 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 n o later than his receipt of Air Midwest’s letter dated November 6, 1992. Mr. Arnol d specifically bases his dutyof-fair representation claim against ALPA on pre-No vember 6 conduct. Significantly, Mr. Arnold was entitled to file suitagainst the union for breach of its duty to fairly represent him in the pre-grievan ce 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 grievan ce 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 g rievance, the employee’s claim4 Our opinion in Lucas used the imprecise formulation that “accrual of [the

employee’s] claim can be tolled” by an attempt to e xhaust 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; accordLucas , 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 & Ma chine Workers, 769 F.2d 330, 336 (6th Cir. 1985), citedinLucas , 909 F.2d at 422. Reinstatement of Mr. Arnold through the grievance process would h ave resolved most, if not all, of Mr. Arnold’s complaint against the union. The d istrict court nevertheless held the doctrine of tolling inapplicable because it con cluded that ALPA did not represent Mr. Arnold in the grievance proceedings o nce he hired his own attorney. Mr. Arnold claims the trial court erred in concludi ng that ALPA did not continue to represent him. He maintains that altho ugh he discharged Mr. Schleder and retained private counsel, he never discharged t he 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 engag ed 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 assistanc e 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 hims elf individually. Consequently, the district court erred in concludin g otherwise for summary judgment purposes. Nonetheless, we agree that Mr. Arnold’s duty-of-fai r-representation claim was not timely filed because Mr. Arnold does not pr ovide 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 Boar d 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 mu tually convenient time beyond the normal thirty day limit. The only otherevidence in the record, introduced by Mr. Arnold himself, established that on February 25, Air Midwest’s counsel wrote to Mr. Arnold’s counsel advising thathe 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 hear ing date. The record and Mr. Arnold are utterly silent about his continued inact ion after that time. Mr. Arnold asserts only that ultimate responsibility for setti ng a hearing lies with the chairman of the Systems Board. Under these circums tances, we do not accept Mr. Arnold’s argument that the statute of limitations o ught to be tolled indefinitely.-10-

We stated in Lucas that accrual of the employee’s duty-of-fair-repres entation claim will be tolled if the employee makes a good f aith 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 th e 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 equit able tolling doctrine to Mr. Arnold’s duty-of-fair-representation claim. The di strict court properly dismissed the claim as untimely.

III. The district court held Mr. Arnold’s state law clai ms against both the union and Mr. Schleder preempted by the federal duty-of-f air-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 actio ns taken on behalf of the union. Mr. Arnold does not appeal the district cou rt’s conclusion that his state law claims against the union are preempted by his d uty-of-fair-representation claim. He contends, however, that his state law cla ims 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 deci ding the immunity issue, we5 At argument, Mr. Arnold’s counsel suggested that r ecent 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 Pi lots Ass’n , 76 F.3d 1509 (10th Cir. 1996), and conclude they do not mandate a diff erent result in this case. -11- must assess the extent to which Mr. Schleder’s acti ons 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 seco nd, immunity does not apply here because an attorney-client relationship existe d between Mr. Schleder and Mr. Arnold. 5 Generally, a union’s agents may not be held individ ually liable for actions taken on behalf of the union. Atkinson v. SinclairRefining Co. , 370 U.S. 238, 249 (1962). In Atkinson , the Supreme Court concluded Congress had expresse d its intent in section 301 of the Labor Management R elations Act that “the union as an entity . . . should in the absence of agreeme nt 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 u nion 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, courtafter court has cited Atkinsonto 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 agent s should not extend to attorneys. Courts have consistently rejected efforts to distinguish lawyers from other union agents for purposes of Atkinsonimmunity. 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 agent s to represent its interests in the collective bargaining process. Peterson , 771 F.2d at 1258. “Where . . . the attorney performs a function in the collective barg aining process that would otherwise be assumed by the union’s business agents or representatives, the rationale behind the Atkinsonrule is squarely applicable.” Id. Thus, “[a] different result is not warranted or permissible me rely 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, r ather than the individual business agent or attorney, that represents and is ultimatel y responsible to the member.” Id. at 1258. More recently, the Ninth Circuit affirme d that immunity for attorneys who perform services for and on behalf of a union e xtends 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 Petersonreasoning. See Montplaisir , 875 F.2d at 6 (quoting Petersonextensively). These courts have also articulated persuasive publi c policy considerations that favor the extension of immunity to union attor neys. Allowing union members to proceed against the union’s attorneys for malpra ctice would anomalously subject the union’s agents to a higher standard of care than the union itself. See Breda1 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 s tate statutes of limitations for legal malpractice are g enerally longer than the six month federal limit for hybrid actions, carving outan 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 att orneys to suit long after the limitation period had expired against both the unio n and employer. Finally, it would be inequitable to impose liability on union attorneys for what are often “essentially political and strategic decisions of t he 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 pu blic policy. We hold that-14-

the immunity for union agents established by Atkins onextends to lawyers, and that an attorney who performs services for and on b ehalf of a union may not be held liable in malpractice to individual grievants where the services performed constitute a part of the collective bargaining proc ess. That process plainly encompasses services provided by the union in its r ole as exclusive representative. Mr. Arnold’s proper remedy would h ave been to timely file suit against the union on his duty of fair representatio n claim. To avoid the Atkinsonbar, Mr. Arnold contends Mr. Schleder acted as Mr. Arnold’s personal representative, not the represent ative 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. Arno ld 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 b argaining process.” Id. at 1258. This is so even when “the underlying grievance belo ngs to a particular union member who has a very real interest in the manner i n 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 u nion is not persuasive. Mr. Schleder was retained by the union, not by Mr. Arno ld. Mr. Schleder’s services were provided to Mr. Arnold as a benefit of Mr. Arn old’s union membership. At6 Mr. Arnold also contends the failure to subject un ion counsel to liability

under state malpractice laws is contrary to public policy because such attorneys are effectively immunized from all liability for ne gligent 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. Ar nold by Mr. Schleder, Mr. Schleder also provided services on behalf of ALPA t o the other ALPA pilots threatened with termination by Air Midwest. Althou gh 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 repres entation was not in connection with the performance of a collective bar gaining function because at the time of the representation no grievance had yetbeen 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 repr esentation of Mr. Arnold occurred pre-termination rather than post-terminati on is insufficient to distinguish it from the activity by union attorneys which has c onsistently been found to be immune. See Montplaisir , 875 F.2d at 4-7 (applying Atkinsonimmunity 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 r epresentation. The judgment of the district court is AFFIRMED.