Justices Won't Review When Six-Month Clock Starts Ticking for Fair Representation Claims

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By Kevin McGowan

Nov. 17 — Denying a former union-represented college professor's petition, the U.S. Supreme Court Nov. 17 declined to review a federal appeals court decision that the professor failed to file a timely breach of duty of fair representation claim against his union under federal labor law.

The justices denied former New York Institute of Technology teacher Gurumurthy Kalyanaram's petition to review a U.S. Court of Appeals for the Second Circuit decision that Kalyanaram failed to satisfy a six-month limitations period governing his duty of fair representation claim against the American Association of University Professors at NYIT (742 F.3d 42, 198 LRRM 2325 (2d Cir. 2014)).

In DelCostello v. Teamsters, 462 U.S. 151, 113 LRRM 2737 (1983), the Supreme Court ruled a six-month limitations period for filing unfair labor practice complaints under the National Labor Relations Act also applies to an employee's claims against a union for breaching the duty of fair representation,

But Kalyanaram argued the collective bargaining agreement in his case made his state court suit challenging an arbitrator's award part of the contractual process he had to exhaust before the award became final. The Second Circuit therefore erred in holding his claim accrued on Oct. 13, 2009, when the arbitrator denied his motion for reconsideration rather than on June 2, 2010, when a state court upheld the arbitration award, he said.

Kalyanaram in September 2010 sued the union in federal court for breach of fair representation based on the union's alleged failure adequately to represent him during the arbitration proceedings. A federal district court in New York dismissed the claim, holding it untimely under DelCostello, and the Second Circuit affirmed. The appeals court said Kalyanaram's fair representation claim accrued, at the latest, in October 2009 when the arbitrator denied reconsideration of the August 2009 award upholding Kalyanaram's discharge.

Alleged Circuit Split on Tolling

The lower courts misinterpreted CBA language that stated “the decision of the arbitrator shall be final and binding subject to appeal by either party to the applicable court,” Kalyanaram said.

The “subject to” language, when read along with other related contract provisions, means Kalyanaram's suit in state court challenging the arbitration award wasn't a “parallel” proceeding but rather an integral part of the contractual process, he said. Under the contract, he wasn't free to raise the fair representation issue against the union until the state court finished its review of the arbitration award, Kalyanaram said.

That contractual process was completed only when the state court denied his appeal of the arbitrator's award in June 2010 and he therefore filed his fair representation claim within the six-month limitations period in September 2010, Kalyanaram said.

The Second Circuit's misinterpretation of the “subject to” clause ignores the contract's plain language and renders that phrase “mere surplusage,” Kalyanaram said. If left intact by the Supreme Court, the appeals court decision will cause confusion among employees, unions and employers about the meaning of similar CBAs and cause premature filings of fair representation claims, he said.

Alternatively, Kalyanaram said the Second Circuit's decision creates a split among the federal appeals courts about whether the fair representation limitations period should be tolled while an employee pursues judicial review procedures explicitly referenced in a union contract.

Kalyanaram said the Second Circuit's decision creates a split among the federal appeals courts, but the AAUP said the court reasonably interpreted the language of the collective bargaining agreement and no circuit split exists regarding tolling of fair representation claims.

Unlike the Second Circuit, the District of Columbia and the Fourth circuits have said fair representation claims don't accrue until parties have exhausted the procedures set out in a bargaining contract, Kalyanaram said, citing Johnson v. District of Columbia, 552 F.3d 806, 185 LRRM 2684 (D.C. Cir. 2008), and Trent v. Bolger, 837 F.2d 657, 127 LRRM 2505 (4th Cir. 1988).

The Supreme Court should grant review to resolve that circuit conflict, Kalyanaram said.

“The issue has important policy implications because unions, employees and employers need certainty concerning their agreements,” Kalyanaram said. “When disputes arise, they need to know when the limitations period will start running for employee claims against the union. And during contract negotiations, they need to know what specific language should be negotiated concerning the employee's rights and whether the courts will accord the language its plain meaning, and not render it meaningless or mere surplusage.”

David T. Azrin of Gallet Dreyer & Berkey LLP in New York was counsel of record for Kalyanaram.

No Review Needed, Union Says

In opposing review, the AAUP chapter said the Second Circuit reasonably interpreted the contractual language and no circuit split exists regarding tolling of fair representation claims.

Kalyanaram acknowledges the “subject to” language in the CBA is unusual, the union said. “[Kalyanaram] is unable to cite a single case involving construction of such language, much less one where another court of appeals' construction thereof conflicted with the Second Circuit,” the union said.

“Indeed, he is unable to point to any other collective bargaining agreement anywhere which includes such language. Thus the present case is of little or no importance to the resolution of other litigation or even to the interpretation of language of other bargaining agreements,” AAUP said.

The Second Circuit's rejection of Kalyanaram's tolling argument is “fully consistent” with Supreme Court precedent and rulings from other federal appeals courts, the AAUP chapter said.

Under relevant Supreme Court rulings, tolling of a federal statute of limitations is permitted only when a claimant has actively pursued his judicial remedies by filing a defective pleading, the claimant has been “induced or tricked” by an opposing party's misconduct into missing a filing deadline or tolling otherwise would vindicate an important federal policy, the union said.

None of those “very narrow circumstances” is present in Kalyanaram's case, the AAUP chapter said. He can't showing tolling is necessary to vindicate an important federal interest, the union said.

“To the contrary, this Court made clear in DelCostello that policy considerations point to establishing a relatively short statute of limitations for DFR claims to ensure ‘rapid final resolution of labor disputes favored by federal law,' ” the union said. “The delay in accrual of DFR claims advocated by [Kalyanaram] would undermine this federal labor policy.”

No federal appeals court ruling points in the opposite direction, the union said. The D.C. Circuit and Fourth Circuit decisions cited by Kalyanaram are inapposite, as he didn't need to commence or conclude the state court proceedings as a prerequisite to filing his fair representation claim, the union said.

Kalyanaram suggested DelCostello supports his tolling argument, but the Supreme Court's decision, if anything, indicates tolling isn't favored, the union said.

“Accepting petitioner's tolling argument would as a matter of course substantially expand the six-month deadline whenever the losing party challenged an arbitration award in court,” the AAUP chapter said. “Such a categorical enlargement of the statute of limitations by way of tolling clearly would be inconsistent with federal labor law.”

Amelia K. Tuminaro of Gladstein Reif & Meginnis LLP in New York was counsel of record for the AAUP chapter.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com