                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                    PUBLISH
                                                                      JUN 23 1998
                  UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                           Clerk
                               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 Straton 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.
      Plaintiffs and appellants Robert Repstine and BN General Committee of

Adjustment (former C & S) GO-291 appeal the grant of 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 the certified collective

bargaining representative for BN employees in the crafts or classes of trainmen,

conductors, locomotive firemen, yardmen and yardmasters. 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, including GO-291. 2 This

agreement (“1991 agreement”) incorporated a crew consist agreement moratorium

from a previous crew consist agreement, pursuant to which a moratorium was


      1
       Initially, BN and UTU were co-defendants in this case. Plaintiffs have
subsequently settled their claims against UTU. UTU remains a nominal defendant
under Fed. R. Civ. P. 19 for the purposes of enabling complete relief.
      2
       A crew consist agreement governs the size of, and pay terms applicable to,
the crew operating each train.

                                       -2-
placed on further bargaining on the agreement without the express agreement of

the parties. Apparently, at the time the 1991 agreement was signed, BN verbally

agreed to give UTU employees the option to later adopt any subsequent crew

consist agreement entered into by BN employees not subject to the 1991

agreement. BN claims the offer was an “all or nothing” 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 individual UTU committee,

including his own, GO-291, retained the authority to accept or reject any

subsequent crew consist agreement.

      In May 1993, BN negotiated a new crew consist agreement with certain BN

employees not subject to the 1991 agreement. BN then notified UTU in June

1993 that it could adopt the new crew consist agreement (“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 agreement except GO-291. The

president requested that the agreement be implemented on all UTU committees

except GO-291, but BN apparently declined to do so.

      On October 14, 1993, UTU’s president informed BN that a majority of its

representatives had ratified the 1993 agreement and advised BN to implement the

agreement on November 1, 1993, on all committees, including GO-291. Mr.

Repstine, on behalf of GO-291, informed BN that GO-291 had appealed UTU’s


                                        -3-
decision to adopt the 1993 crew consist agreement to UTU’s Board of Directors.

Mr. Repstine also told BN that GO-291 would take action to nullify the agreement

if UTU’s Board sustained its appeal. Under UTU’s constitution, the internal

appeal was mandatory. See Volkman v. United Transp. Union, 73 F.3d 1047,

1056 (10th Cir. 1996) (noting that under UTU’s constitution, “the internal appeal

was not optional.”).

      On October 10, 1994, UTU’s Board of Directors rejected 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 district court granted BN’s motion for

summary judgment, concluding that the statute of limitations barred plaintiffs’

claims. Plaintiffs’ claims against UTU were settled. Mr. Repstine and GO-291

appeal the grant of summary judgment to BN. Mr. Repstine and GO-291

members are currently employed under the terms of the 1993 agreement.



                                  DISCUSSION

      We review the district court’s grant of summary judgment de novo,

applying the same standards applied by the district court. Young v. United Auto.

Workers-Labor Employment & Training Corp., 95 F.3d 992, 996 (10th Cir. 1996).




                                        -4-
Accordingly, summary judgment is properly granted where there is no genuine

issue of material fact for trial. Id.

       Mr. Repstine and GO-291 allege that UTU breached its duty of fair

representation; that BN violated the RLA; and that BN committed a common law

breach of contract when it implemented the 1993 crew consist agreement, in

violation of the moratorium clause of the 1991 crew consist agreement.

       In this appeal, we address only the propriety of the district court’s grant of

summary judgment to BN. Plaintiffs’ RLA argument asserts 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 agreement on GO-291 without GO-

291's agreement or approval. As indicated, the district 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 limitations was tolled while they

pursued internal union appeals.



       1. Statute of Limitations for RLA Claim

       The RLA contains no limitations period itself. However, courts uniformly

hold that the six-month limitations period from § 10(b) of the National Labor

Relations Act, 29 U.S.C. § 160(b), applies. See, e.g., Lancaster v. Air Line Pilots


                                          -5-
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 Lines, 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 limitations period commenced to run, on

November 1, 1993, the date the 1993 agreement was implemented. Plaintiffs

argue the limitations period did not begin to run until October 10, 1994, the date

on which UTU’s Board of Directors rejected GO-291's internal union appeal,

thereby exhausting plaintiffs’ internal union appeals. If BN is correct that the

limitations period was not tolled during the pendency of the internal union appeal,

plaintiffs’ claims, filed on April 5, 1995 (seventeen months later), were untimely.

      Plaintiffs argue that their claims are “hybrid,” which 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 remedial procedures provided in a

collective-bargaining agreement.” Edwards v. International 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 “hybrid” claim, an employee

claiming wrongful discharge in violation of the collective bargaining agreement

argues that the “employer breached a collective-bargaining 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,


                                         -6-
the “employee’s unfair representation claim against his union and the underlying

§ 301 claim against his employer are ‘inextricably interdependent.’” Id. at 1051

(quoting DelCostello v. International Bhd. of Teamsters, 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, . . . [employee-plaintiffs] must not only

show that their discharge was contrary to the [collective-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 employee must prove against any

defendant is the same.” Edwards, 46 F.3d at 1051.

      Special limitations rules apply to such “hybrid” claims. 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 union 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 typical “hybrid”
      claims and the limitations rules that apply to typical hybrid actions

                                          -7-
      do not apply here. In this case, Repstine’s claims are “hybrid” only
      in the sense that he has asserted duty of fair representation claims
      against UTU and breach of contract claims against BN. 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 surrounding 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.” Id. at 128.

      Plaintiffs’ claims against UTU, now settled, essentially 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 between 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 violated the collective-bargaining

agreement.




      3
       UTU and its constituent committees, like GO-291, entered into a
Coordination Agreement which designated certain coordination 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-
      Similarly, plaintiffs’ claims against BN involve allegations of improprieties

committed by BN unilaterally in connection with its implementation, over GO-

291'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 not allege any collusion or

conspiracy between BN and UTU in connection with the implementation of the

1993 agreement. Rather, it alleges separate and discrete legal claims against both

UTU and BN. While, as we have indicated, the claims all relate generally to the

implementation of the 1993 agreement, to which both BN and UTU acceded, each

defendant’s particular course of conduct was pursued separately and involved

different allegedly unlawful conduct, and any damage flowing therefrom would be

redressed separately. 5

      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’ claims were not true
“hybrids,” the district court considered the type of 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 violated its agreements
      with GO-291 and its constitution by failing to insist that BN deal
                                                                       (continued...)

                                           -9-
      Indeed, plaintiffs settled their claims with UTU, yet 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 judgment 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 “ultimate wrong” is not that of BN.




      5
       (...continued)
      directly with GO-291, and by endorsing the new crew consist
      agreement on behalf of all Southern Lines committees. 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 injunctive relief.
      Practically speaking, the Court would issue a judgment stating that
      BN had violated the collective bargaining agreement (and the RLA)
      and would enjoin BN from imposing the new crew consist agreement
      on GO-291. As is evident, this relief neither implicates nor affects
      UTU or the other Southern Lines committees. Such relief would not
      and could not alter the Court’s assessment of Repstine’s claims
      against UTU (claims involving intra-union agreements and the UTU
      constitution).

Order at 12-13, Appellants’ App. at 130-31.

                                        -10-
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 Volkman for 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 railroad/employers, arguing that

UTU breached its duty of fair representation and that the railroad had violated a

labor protective agreement, all in connection with the negotiation of the

agreement implementing the labor protective agreement. We evidently assumed

without specific discussion that the employees’ claim 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’ pursuit of mandatory internal

union appeals. 7 The district court opinion makes it clear that the claim was a

      6
        For instance, plaintiffs could have no claim against BN, because there was
no argument that BN violated the collective bargaining 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 constitution and the Coordination
Agreement with plaintiffs. Similarly, as plaintiffs conceded at oral argument,
they could have brought their claims directly against BN, without including any
claims against UTU.
      7
       As indicated supra, the UTU constitution requires exhaustion of internal
appeals:

      [The UTU constitution] provides that no member “shall resort to the
      civil courts to correct or redress any alleged grievance or wrong, or
                                                                      (continued...)

                                         -11-
“hybrid” claim, and it also makes clear the joint and collusive nature of the

defendants’ conduct. Volkman v. United Transportation 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 plaintiffs do not present a

true “hybrid” claim. We therefore need not consider whether Volkman compels

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. 9

      7
       (...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 deceptive and
conspiratorial conduct of defendants.” Volkman, 724 F. Supp. at 1309.
      9
        In Volkman, we acknowledged that in a hybrid breach of duty of fair
representation and breach of contract case “ordinarily, 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 Frandsen v. Brotherhood of Ry.,
Airline & Steamship Clerks, Freight Handlers, Express 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 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
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 Frandsen and in Volkman, as it is in a typical “hybrid” claim, but is not
                                                                         (continued...)

                                         -12-
      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’ Opening Br. at 21. They argue

that this constitutes a common law breach of contract, subject to Colorado’s three

year statute of limitations. As BN argues, plaintiffs failed to include this claim in

their complaint, nor did they argue it before the district court in their filings in

opposition to BN’s motion for summary judgment, nor did the district court

address it. 10 We decline to address an argument presented for the first time on

      9
       (...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 Volkman for the proposition that “[i]f
the objecting employee . . . pursues his nonjudicial 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 employee for failing to
pay a strike assessment, as apparently required by the collective bargaining
agreement. Like Volkman and Frandsen, the interdependent nature of the conduct
of both defendants—the union and the employer—was evident. 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 conduct 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 Agreement. 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-
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 court’s decision

granting summary judgment to defendant BN.




        (...continued)
       10

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

       Because we affirm the district court’s judgment on statute of limitations
       11

grounds, we need not address BN’s argument that plaintiffs have manifested
acceptance of the 1993 agreement.

                                       -14-
