                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 12a0902n.06

                                           No. 11-3345                                   FILED
                          UNITED STATES COURT OF APPEALS                            Aug 15, 2012
                               FOR THE SIXTH CIRCUIT                          LEONARD GREEN, Clerk


ROBIN HUNTLEY,                                         )
                                                       )
       Plaintiff-Appellant,                            )
                                                       )
v.                                                     )   ON APPEAL FROM THE UNITED
                                                       )   STATES DISTRICT COURT FOR
                                                       )   THE NORTHERN DISTRICT OF
OHIO ASSOCIATION OF PUBLIC SCHOOL                      )   OHIO
EMPLOYEES and ECONOMIC OPPORTUNITY                     )
PLANNING ASSOCIATION OF GREATER                        )
TOLEDO,                                                )
                                                       )
       Defendants-Appellees.                           )


Before: SILER, DAUGHTREY, and WHITE, Circuit Judges.

       SILER, Circuit Judge. Plaintiff Robin Huntley alleges she was wrongfully terminated from

her position as a Head Start Program teacher’s assistant with Economic Opportunity Planning

Association of Greater Toledo (“EOPA”). She followed the internal grievance process as detailed

in the Collective Bargaining Agreement (“CBA”) between her union, Ohio Association of Public

School Employees (“OAPSE”), and her employer, EOPA. The union decided not to pursue

arbitration, and Huntley believes this failure to arbitrate is a violation of the Labor Management

Reporting and Disclosure Act, 29 U.S.C. § 411 (“LMRDA”), the CBA, and an Ohio statute. The

district court granted judgment on the pleadings in favor of the Defendants. The panel unanimously

agrees that oral argument is not needed. See Fed. R. App. P. 34(a). For the reasons that follow, we

AFFIRM.
No. 11-3345
Huntley v. Ohio Assoc. of Public School Employees, et al.

                                                  I.

       OAPSE and EOPA entered into a CBA that prescribes the way in which EOPA employees

must bring complaints such as wrongful termination. The CBA prescribes a four-step process that

includes the employee’s discussion of the complaint with his or her supervisor, submission of a

formal grievance in writing, and, finally, arbitration. Specifically, the final step provides, “If [the

employee and the union are] not satisfied with the written response from the Executive Director, the

Union and the aggrieved person may . . . submit the grievance to arbitration by giving written notice

to the Executive Director.” (emphasis added). According to OAPSE, it decided not to pursue

arbitration because it had difficulty contacting Huntley and because, after conducting its own

investigation, it determined her claims against EOPA were without merit.

       Huntley then commenced this action in federal court against both OAPSE and EOPA,

claiming that their failure to arbitrate violates the CBA, the LMRDA, and Ohio Revised Code §

2711.03. She requested an order compelling OAPSE and EOPA to conduct arbitration. The district

court granted judgment on the pleadings for Defendants and also denied Huntley’s motion to amend

the complaint.

                                                  II.

       We review the dismissal of a complaint under Federal Rule of Civil Procedure 12(c) de novo.

EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001).

                                                  A.

       Defendant OAPSE argues that this appeal should not be heard because Huntley filed a motion

for extension of time to file a notice of appeal one day after the notice of appeal was due. A district

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Huntley v. Ohio Assoc. of Public School Employees, et al.

court may grant an extension of time to file a notice of appeal regardless of whether the motion is

filed late, provided the party shows excusable neglect or good cause. Fed. R. App. P. 4(a)(5)(A)(ii).

Huntley claims she did not receive notice of the district court’s order granting judgment on the

pleadings, and the district court found this to be “good cause for delay.” The district court then gave

Huntley until March 31, 2011 to file a notice of appeal, and she filed the notice on March 30, 2011.

Thus, the appeal is timely.

                                                  B.

       The crux of this case centers on Huntley’s allegation that both OAPSE and EOPA violated

the LMRDA by failing to arbitrate. The LMRDA does not, however, apply in this case.

       First, the LMRDA governs the relationship of labor unions and their members. It applies

only to labor unions, not employers. See Thomas v. N.Y. Cent. R.R., 361 F.2d 137, 145 (2d Cir.

1966) (“[T]he LMRDA regulates only the relationship between the union and its members and not

that between an employer and his employees.”). The district court was correct to dismiss the

LMRDA claim against EOPA.

       Second, Huntley has also failed to state a claim under the LMRDA against the union because

the LMRDA does not provide for the relief Huntley seeks. An action against a union for failure to

arbitrate should be brought under the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185.

See Tucker v. Union of Needletrades, Indust. and Textile Emps., 407 F.3d 784, 785-86 (6th Cir.

2005). While the LMRDA prohibits a union from hindering a member’s access to courts, the district

court correctly noted that “OAPSE did not interfere with Plaintiff’s private right to file a claim

seeking judicial enforcement of the grievance requirements in this Court. . . . Under the LMRDA,

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Huntley v. Ohio Assoc. of Public School Employees, et al.

the protection for limiting the rights of the employee does not extend to submitting cases that arise

under the collective bargaining agreement to arbitration.” Thus, Huntley has failed to state a claim

under the LMRDA.

                                                 C.

       Without a statutory federal nexus, Huntley has failed to explain how federal jurisdiction

exists for the remaining claims: the contract claim (the CBA claim) and state statutory claim.

       Even if federal jurisdiction existed to resolve the CBA claim, the district court was correct

to dismiss it because, based on the plain language of the CBA,1 Huntley cannot compel the union

and EOPA to arbitrate. Step four of the grievance process in the CBA provides, “If not satisfied with

the written response from the Executive Director, the Union and the aggrieved person may. . . submit

the grievance to arbitration by giving written notice to the Executive Director.” On its face,

arbitration is permissive rather than mandatory. Thus, the CBA claim against OAPSE fails.

       The CBA claim against EOPA fails as well. Based on the plain language of the contract, the

employer has no duty to participate in arbitration until the union and the employee submit the

grievance to arbitration. OAPSE decided not to submit the case to arbitration because it believed

Huntley’s claim for wrongful discharge was without merit. Thus, EOPA’s duty to arbitrate (if such

a duty existed) was not triggered. Furthermore, Huntley is not a party to the CBA and lacks standing

to seek specific performance. An employee is typically considered a third-party beneficiary to a

CBA between a union and an employer. See United Food and Commercial Workers Local 951 v.


       1
          The CBA was not attached to the complaint “due to its size,” but Huntley refers to it as if
she had attached it. We will, therefore, consider the CBA as if it had been attached to the complaint.

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Huntley v. Ohio Assoc. of Public School Employees, et al.

Mulder, 31 F.3d 365, 370 (6th Cir. 1994). The complaint does not allege third-party beneficiary

status, and Huntley did not brief the standing issue at the district court level or on appeal.

        Finally, the complaint alleges a breach of an Ohio Statute, which provides in relevant part:

        The party aggrieved by the alleged failure of another to perform under a written
        agreement for arbitration may petition any court of common pleas having jurisdiction
        of the party so failing to perform for an order directing that the arbitration proceed
        in the manner provided for in the written agreement.

Ohio Rev. Code § 2711.03. Putting aside the apparent inapplicability of this statute to any case not

in a “court of common pleas,” this is a state law claim, and without the federal statute, the district

court could not exercise jurisdiction over it.

                                                   D.

        The district court was also correct to deny Huntley’s request to amend the complaint.

Recognizing that she likely pled a cause of action under the wrong statute, in her response to the

Defendants’ motions to dismiss, Huntley sought to amend her complaint to state a claim under the

LMRA. A district court should grant a plaintiff leave to amend the complaint “when justice so

requires.” Fed. R. Civ. P. 15(a). Leave to amend a complaint should be denied, however, when the

amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962). In this case, an

amendment would be futile because the statute of limitations on the suggested LMRA claim has

expired.

        The statute of limitations for a claim that (1) an employer breached its obligations under the

CBA and that (2) a union violated its duty of fair representation by failing to arbitrate, is six months.

Schoonover v. Consol. Freightways Corp. of Delaware, 49 F.3d 219, 221-22, n.1 (6th Cir. 1995).


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Huntley v. Ohio Assoc. of Public School Employees, et al.

The statute of limitations begins to run when the employee discovers, or should have discovered, the

acts giving rise to the cause of action. See id. at 222. In this case, the statute of limitations began

to run when Huntley became aware that her grievance would not be submitted to arbitration. See id.

at 222, n.1. The district court reasoned that the statute of limitations expired on or about November

30, 2008 – six months after Huntley became aware of her wrongful discharge claim. This is

incorrect, however, as Huntley’s complaint in federal court is for failure to arbitrate, not wrongful

discharge.

       The proper inquiry, therefore, is when did Huntley become aware, or when should she have

become aware, that the union would not arbitrate her grievance? Huntley claims she was wrongfully

discharged on May 30, 2008. However, it had to be on May 30, 2007, according to all the records.

The CBA lays out a specific timeline for the grievance process, including a series of steps an

employee must take, with a specific number of days between each step. The complaint alleges that

Huntley “timely filed a grievance and has timely performed every measure under the CBA to exhaust

her administrative appeals, except for arbitration.” Since Huntley followed the steps outlined in the

CBA and now alleges a breach of specific provisions of the CBA, it is reasonable to conclude that

she was (or should have been) aware of the timeline contained in the CBA.

       According to this timeline, the union had twenty days after the last step to submit the

grievance to arbitration. Calculating the number of days for the entire grievance process in the CBA

and assuming that each step of the process took the maximum number of allowable days, the union

had until late August or early September 2008 to decide whether to arbitrate the grievance. The

statue of limitations expired, then, at the latest, in February or March 2009. Huntley did not file her

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Huntley v. Ohio Assoc. of Public School Employees, et al.

complaint until May 21, 2009. The district court was, therefore, correct to deny Huntley’s motion

to amend her complaint.

       AFFIRMED.




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Huntley v. Ohio Assoc. of Public School Employees, et al.

HELENE N. WHITE, Circuit Judge, dissenting.

        Because I believe that additional fact-finding is necessary to determine whether the statute

of limitations expired on Robin Huntley’s breach of fair representation claim against the Ohio

Association of Public School Employees (“OAPSE”) and her proposed amended claim against the

Economic Opportunity Planning Association of Greater Toledo (“EOPA”) under the Labor

Management Relations Act (“LMRA”), I respectfully dissent.

        Robin Huntley (“Huntley”) was terminated from her position in the Head Start program at

EOPA on May 23, 2007. Subsequently, Huntley followed the grievance procedure outlined in the

collective bargaining agreement (CBA) between OAPSE and EOPA. Under Step 4 of the grievance

procedure, there is an option for the Union and the aggrieved person, in this case, Huntley, to submit

the grievance to arbitration within twenty-days if they are not satisfied with the response of the

Executive Director. There are no further time restrictions regarding the arbitration process in the

CBA. Although Huntley desired arbitration, the union ultimately decided not to pursue that course

of action. On May 21, 2009, Huntley brought claims against OAPSE and EOPA based on their

failure to conduct arbitration in this matter.

        As the majority points out, Huntley incorrectly brought her claims against OAPSE and EOPA

under the Labor Management Recording and Disclosure Act. Nonetheless, in its order granting the

defendants’ motions for judgment on the pleadings, the district court analyzed Huntley’s complaint

as asserting a claim against OAPSE for breach of fair representation, which is authorized under

Section 301 of the LMRA. Chapman v. United Auto Workers Local 1005, 670 F.3d 677, 682 (6th

Cir. 2012). The statute of limitations for this claim is six months. Schoonover v. Consol.

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Huntley v. Ohio Assoc. of Public School Employees, et al.

Freightways Corp. of Delaware, 49 F.3d 219, 221 (6th Cir. 1995). Where “the breach of fair

representation stems from the union’s failure to bring the arbitration claim or the union’s decision

to abandon it before resolution,” the statute of limitations begins “when the grievant knew or should

have known that the union had elected to proceed no further.” Id. at 222 n.1. This “may arise when

the union takes an unequivocal position that it will not seek arbitration.” McCreedy v. Local Union

No. 971, UAW, 809 F.2d 1232, 1236 (6th Cir. 1987).

       In its opinion, the district court used the following timeline to conclude that Huntley’s breach

of fair representation claim was barred by the statute of limitations:

       On May 30, 2007, [Huntley] tendered a grievance to her immediate supervisor . . . .
       Ultimately Defendant EOPA’s Executive Director concurred with the decision to
       terminate Plaintiff on June 26, 2007, thus completing the four steps of the grievance
       procedure . . . . At step five, Defendant OAPSE had thirty days after the Executive
       Director’s response to give their consent to submit to arbitration. The statute of
       limitations began to accrue on the thirty first day after the union failed to pursue the
       arbitration process on Plaintiff’s behalf. Clearly more than six months elapsed before
       Plaintiff filed a case in federal court on May 21, 2009 . . . . The filing of a claim for
       breach of fair representation is time barred.

       However, additional information in the record calls the district court’s timeline into question.

On June 27, 2007, the day after the EOPA Executive Director’s decision, the president of Huntley’s

local OAPSE union, Martha Thames, informed EOPA that the union is “taking this grievance to

arbitration.” Over seven months later, on February 4, 2008, union field representative Andre

Washington (“Washington”) met with Huntley to discuss her grievance.

        In May, 2008, Brenda Wilson-Wright (“Wilson-Wright”) became the new local union

president. Sometime after her election, Wilson-Wright had additional correspondence with Huntley

about her grievance and classified Huntley as still in the “final stages” of the grievance procedure.

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Huntley v. Ohio Assoc. of Public School Employees, et al.

Wilson-Wright testified in her deposition that around May, 2008, she forwarded Huntley’s

paperwork, which included her request for arbitration, to Washington, presumably for the second

time. During her deposition, Wilson Wright was asked: “After you sent the request for arbitration

in concerning Ms. Huntley, do you recall if you had any other involvement with Ms. Huntley’s

grievance”? Wilson-Wright responded, “No. I didn’t have anymore. Just waiting for a letter to come

so if they was going to send it to arbitration I would call her, plus she would get a letter as well.”

       Based on Wilson-Wright’s deposition, it appears that both she and Huntley were waiting for

an unknown period of time after May 2008 to determine whether the union was going to proceed to

arbitration on this matter. This waiting period occurred after the union had already seemingly made

the decision to submit Huntley’s grievance for arbitration.

       As part of discovery in the instant litigation, Huntley received the following interrogatory:

       Please [sic] the name of each individual that you spoke with from the Ohio
       Association of Public School Employees, the time and date that you spoke with them
       and the subject mattter that you discussed with them.

       In her response to this interrogatory, Huntley states that she contacted Washington on

December 10, 2008, to inquire about the status of her arbitration. Huntley then made two additional

inquiries about her arbitration on January 6, 2009 and January 22, 2009. With respect to her inquiry

on January 6, 2009, Huntley states: “I talked with [Mr. Washington’s secretary] at the OAPSE office

. . . and requested a copy of the letter supposedly denying arbitration.” Although it is clear that

Huntley knew about OAPSE’s decision to deny arbitration by January 6, 2009, it is unclear from the

record whether Huntley knew about the union’s decision prior to her initial inquiry to Washington

on December 10, 2008.

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No. 11-3345
Huntley v. Ohio Assoc. of Public School Employees, et al.

        It is also unclear based on the current record whether Huntley should have known that

OAPSE was not going to pursue arbitration on her grievance prior to December 10, 2008. Although,

the record indicates that on June 27, 2007, OAPSE originally decided to submit Huntley’s grievance

for arbitration, it appears that when Wilson-Wright was elected as the new local president of OAPSE

in May 2008, the decision whether the matter would proceed to arbitration began anew. After that

point, both Huntley and Wilson-Wright expected to receive correspondence fromWashington about

whether the arbitration would go forward. Washington attests in his affidavit that “Huntley was

advised of the Union’s decision [sic] not pursue the grievance and incur the costs of the arbitration.”

However, Washington does not state when Huntley was so advised. Further, despite the fact that

OAPSE initially submitted Huntley’s grievance for arbitration on June 27, 2007, Washington did not

receive a letter stating that OAPSE would not pay for the costs of arbitration until almost a year later,

on June 11, 2008. However, Huntley is not copied on this letter and there is no indication that she

was ever informed about the union’s decision at that time. Additionally, the letter was sent to Janice

Case, an interim local union president who was no longer serving in that position. Wilson-Wright,

the local union president at that time, was not copied on that letter and, based on her deposition

testimony, never received that correspondence.

        In light of the lengthy process used by OAPSE to determine whether to submit Huntley’s

grievance to arbitration, and the fact that the president of Huntley’s local union was never informed

about the final decision on Huntley’s grievance, I cannot agree with the majority’s determination

that, based on this record, Huntley reasonably should have known prior to December 10, 2008 that



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Huntley v. Ohio Assoc. of Public School Employees, et al.

OAPSE was not going to pursue arbitration on her behalf. Accordingly, the district court should not

have found Huntley’s breach of fair representation claim against OAPSE time barred.

       The district court also denied Huntley’s request to amend her complaint to assert a breach

of collective bargaining agreement claim against EOPA on the ground that any such claim would

also be barred by the six-month statute of limitations. However, “[b]efore an employee may bring

a [claim under § 301 of the LMRA] against an employer for dismissing him in violation of the

collective bargaining agreement, the employee must first exhaust any grievance or arbitration

remedies provided in the collective-bargaining agreement.” Robinson v. Central Brass Mfg. Co.,

987 F.2d 1235, 1239 (6th Cir. 1993). Thus, when an employee asserts claims under § 301 of the

LMRA against both the union for breach of fair representation during the grievance process and the

employer for breach of the collective bargaining agreement,“the timeliness of the suit must be

measured from the date on which the employee knew or should have known of the union’s final

action or should have known of the employer’s final action, whichever occurs later.” Id. (emphasis

added). Therefore, although EOPA rendered its final decision with respect to Huntley’s termination

on June 26, 2007, the statute of limitations for Huntley’s LMRA claims did not commence until the

union made its final decision on whether to submit Huntley’s grievance to arbitration. As mentioned

above, it is unclear whether Huntley knew, or should have known, about the union’s final decision

not to pursue arbitration before December 10, 2008. Using December 10, 2008 as the starting point,

Huntley’s LMRA claim against EOPA, which would relate back to the original complaint, filed on

May 21, 2009, is within the six-month limitations period. See Fed. R. Civ. P. 15(c)(1)(B).



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Huntley v. Ohio Assoc. of Public School Employees, et al.

       For the foregoing reasons, I would reverse the district court’s decision that Huntley’s breach

of fair representation claim against OAPSE and proposed amended LMRA claim against EOPA are

time barred, and remand for additional fact-finding on this issue. Accordingly, I dissent.




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