August Term, 1999
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Plaintiffs-Appellants,
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Defendants-Appellees.
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B e f o r e:
HODGES, District Judge. (1)
Appeal from an adverse grant of summary judgment in the District of Connecticut (Janet C. Hall, Judge). Appellants argue that their union's refusal to readmit them as members violated the Labor Management Reporting and Disclosure Act as well as Connecticut statutory and common law. The district court held that appellants' federal claim was time-barred and that their state law claims were preempted by the Labor Management Relations Act. We conclude both that appellees are estopped from interposing a limitations defense and that the limitations period of the federal claim was tolled. We therefore reverse the dismissal of the federal claim. However, we affirm the dismissal of the state law claims.
WENDY E. SLOAN, Hall & Sloan, New York, New York, for Plaintiffs-Appellants.
ROBERT M. CHEVERIE, Robert M. Cheverie & Associates, P.C. (John T. Fussell, of counsel), East Hartford, Connecticut, for Defendants-Appellees.WINTER, Chief Judge:
Appellants Gary R. Wall and William Cooksey, Sr. -- two long-time dissident members of appellee Construction & General Laborers' Union, Local 230 (hereinafter "Local 230" or the "Union") -- stopped paying dues after prevailing against the Union in a National Labor Relations Board ("NLRB") unfair labor practice proceeding. Thereafter, however, both men attempted to be readmitted to the Union pursuant to a right guaranteed by the Union's constitution. However, the Union refused to readmit them based on shifting reasons.
Appellants' complaint in the present matter alleged
violations of Sections 101 and 609 of the Labor Management
Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. ßß 411, 529,
and state law claims. The Union moved to dismiss the complaint
for lack of subject matter jurisdiction on the ground that
appellants were not "members" of the Union. The district court
denied the motion. (2)
However, it granted summary judgment on
limitations grounds based on the fact that appellants did not
file suit within three years from the time that the Union first
responded to their requests for readmission. The district court
rejected appellants' arguments that the Union's conduct
constituted a continuing violation and/or that the limitations
period was tolled. It also dismissed the state law claims,
concluding that they were preempted by Section 301 of the Labor
Management Relations Act ("LMRA"). We reverse in part and affirm in part. We hold both that
appellees are equitably estopped from interposing a limitations
defense and that the limitations period was tolled on statutory
grounds. Accordingly, appellants' LMRDA claim should not have
been dismissed as time-barred. Appellants' state law claims,
however, were properly dismissed on preemption grounds, although
on remand the district court may in its discretion permit these
claims to be reframed as federal claims. BACKGROUND We of course view the record in the light most favorable to
appellants. See Bayway Refining Co. v. Oxygenated Marketing &
Trading A.G., 215 F.3d 219, 222 (2d Cir. 2000). In this regard,
we have a considerable advantage over the district court in that
appellants now have the benefit of counsel, and a more organized
presentation of the record has been made to us than was made in
the district court. a) Lapse in Union Membership and Initial Readmission Efforts Wall and Cooksey were both long-time members of Local 230,
one of several local unions affiliated with the Laborers'
International Union of North America ("LIUNA"). By or about
1985, appellants had become dissidents clashing with the Union
leadership, including appellees Lopreato, Pezzente, and LeConche.
Believing they were being singled out for discriminatory
treatment, appellants brought unfair labor practice charges
against the Union before the NLRB. The NLRB found that the Union
removed Wall as shop steward in November 1985 in retaliation for
refusing to follow directions involving the "shake down" of
laborers for money. The NLRB also found that the Union had
discriminated against both Wall and Cooksey in the Union's hiring
hall referral system in retaliation for their opposition to Union
management. The NLRB ordered the Union to make appellants whole
for lost earnings suffered as a result of its discriminatory
conduct. In July 1990, Cooksey could not get work and stopped paying
union dues. In January 1992, the unfair labor practice
proceeding was settled with appellants' consent. Wall stopped
paying union dues in February 1992, intending to dissociate from
the Union. Disputes later arose, however, with respect to the
effect of the settlement on Wall's and Cooksey's pension credits.
Appellants contended that they were misled as to what they would
receive. Appellants apparently came to believe that their pension
benefits might be enhanced if they renewed their membership in
the Union. Cooksey first requested readmission to the Union in a
letter dated April 24, 1992, to which he attached a check for
$351.00. The Union responded on April 28, 1992 that there was no
work available and that it was the Union's policy not to
"initiate or reinstate" members absent work opportunities. The
letter suggested that Cooksey "defer [his] application of
reinstatement until [he] bec[a]me employed" and returned the
$351.00 check. The letter said nothing about a one-year
limitation on readmission. In August 1993, Wall wrote to the Union to learn the amount
of dues owed on his "book," a term synonymous for our purposes
with union membership. The Union responded in a letter dated
August 25, 1993, titled "Readmission to Local Union 230." The
letter stated that, because Wall had been delinquent in the
payment of his dues "in excess of one (1) year, [he was] not
eligible for a readmission on [his] previous book but must be
reinitiated as a new member, subject to payment of the initiation
fee." The letter also stated that it was the Union's policy not
to accept new members except where there are work opportunities
"or where the applicant is working at the calling." The letter
closed by explaining that Presently, there are no significant referral
opportunities in the jurisdiction. However,
should you wish to sign the list for referral
if and when such an opportunity should arise,
you are free to do so. Upon your referral or
employment at the calling, you will be
considered eligible for membership, subject
to payment of all required fees. Thereafter, both appellants sought work through the local's
hiring hall, as suggested by the Union's letters. b) Readmission Efforts from 1995-1997 On February 13, 1995, LIUNA entered into an agreement with
the United States Department of Justice. At or about this time,
appellants retained an attorney, Marc P. Mercier. Mercier
suggested that appellants seek readmission through procedures
established in the new agreement before filing suit. Both men
thereafter sent letters to the Union again requesting
readmission. Cooksey sent a letter dated March 1, 1995,
"requesting to be readmitted" and noting that this was his
"second request." The Union responded in a letter dated March 7,
1995: [I]t is and has been the policy of Local
Union 230 to take no new initiations or
readmissions unless and until there is a job
to which the applicant can be referred or
unless the applicant has a position in
covered employment. Regrettably, there is no
work now available on a referral basis.
However, you may register for referral at any
time and will be referred to work in
accordance with our existing referral system
as vacancies may occur. In a letter dated April 24, 1995, Wall also "request[ed] to
be readmitted," referring specifically to his right to
readmission under LIUNA's constitution. The Union responded on
April 26, 1995, stating that Wall had "been advised previously
that it is and has been the policy of Local Union 230 to take no
new initiations or readmissions unless and until there is a job
to which the applicant can be referred to unless the applicant
has a position in covered employment." Neither response by the
Union mentioned anything about a one-year rule. In December 1995, several months after these rejections, the
Union barred appellants from signing the referral list.
Appellants immediately complained to Michael S. Bearse, LIUNA's
General Counsel, and, with Mercier's aid, were once again allowed
to sign the referral list. Wall also wrote to the Union and
asked, among other things, whether he could "interpret the
meaning of being registered on Local Union 230 out of work list
as meaning [the Union] will now allow us to exercise our rights
to readmission. If so please tell me the amount of money needed
and I will send it to you immediately." On January 5, 1996,
LeConche responded to Wall's inquiry regarding readmission,
stating that "it is my opinion that you may be a barred
individual within the meaning of the LIUNA Ethics Code.
Therefore, I will be referring this matter to the Inspector
General's Office." On April 9, 1996, the Union's attorney,
Robert M. Cheverie, wrote a letter to the Inspector General
conveying his legal opinion that Wall and Cooksey were "barred
persons." During this time period, LIUNA's General Executive Board
("GEB") attorney, Robert D. Luskin, investigated appellants'
complaint concerning their right to readmission into the Union. (3)
On June 26, 1996, Luskin wrote Cheverie and noted that he had
read Cheverie's April 9, 1996 letter. However, Luskin stated
that he believed Cheverie's position to be untenable. Luskin
noted that he "understand[s] Local 230's current position . . .
to be that . . . re-initiation has been denied 'solely' on
account of your conclusion that [Wall and Cooksey] have engaged
in 'barred conduct.'" Luskin explained: Any person may lodge a complaint with the
Inspector General. However, no person may be
denied membership in LIUNA, or have his
membership rights limited or withdrawn,
unless he or she has been charged by the GEB
Attorney and has been afforded the due
process rights guaranteed by the Ethics and
Disciplinary Procedure. Luskin further informed Cheverie that the Union "may not
deny re-initiation to Messrs. Cooksey and Wall on the basis that
you have articulated. [And i]n light of the fact that this is
the sole basis on which their right to re-initiation has been
denied, Local 230 should be advised to permit them promptly to
exercise their right to re-initiate." The Union did not,
however, take any steps to permit Wall and Cooksey "promptly to
exercise their right" to readmission. Several days later, on July 1, 1996, Wall was finally
referred for work. When Wall reported to the work site, he asked
the union steward to call Local 230 to inform the Union that he
had reported to work and that he was requesting a book. The
union steward informed Wall that the Union would not permit him
to buy a book. Membership was thus denied to Wall. On July 16, 1996, Luskin wrote Cheverie another letter in
which Luskin noted that he had been told that Local 230 "was not
relying solely on . . . [the alleged] 'barred conduct' as the
basis for refusing [appellants'] readmission as members. Rather,
[the Union also] believed that a local union member who
voluntarily permitted his membership to lapse was not entitled to
re-admission as a matter of right." Luskin stated that the
position "represents a change from the position previously
asserted" by the Union, namely, that any person, whether or not a
member of the union, may participate in the
job referral list operated by Local 230, but,
so long as members are out of work, no person
will be re-initiated or initiated until he is
dispatched or otherwise obtains a job with a
covered employer. In reliance on this
position, we anticipated that if Mr. Cooksey
or Mr. Wall secured a job with a covered
employer or were dispatched by the local,
they could then exercise their right to re-initiate. Luskin also informed Cheverie that the "current position is
at odds with the plain language of Article III, Section 2(e) of
the [LIUNA] [c]onstitution, which guarantees to each member the
right '[t]o readmission.'" He stated that a "local union simply
does not have discretion absolutely to refuse a request for re-admission. This is especially true in light of the additional
change in local policy to refuse to permit non-members to have
their names placed on the out of work list." Accordingly, Luskin
"directed [Local 230] to permit Messrs. Cooksey and Wall, if they
choose, to exercise their right to readmission." Luskin so
notified Mercier in a letter dated July 24, 1996. Nevertheless, the Union did not readmit Wall and Cooksey.
Rather, Bearse wrote Luskin in October 1996 and took the position
that Cooksey had no constitutional right to readmission because a
year had passed following a lapse in dues. Luskin appears then
to have taken the matter under prolonged reconsideration. On May 15, 1997, Wall and Cooksey, represented by Mercier,
filed the present action against the Union and its officers. On
September 10, 1997, Luskin reversed his position as to
appellants' right to readmission, stating: Since the issuance of the [July 16, 1996]
letter . . ., I have been made aware of
LIUNA's long standing interpretation of
Article III, Section 2(e) and Article VIII,
Section 6 of its Constitution. . . . Upon
review of LIUNA's long established
interpretation and application of its
Constitutionally based readmission right, I
concur that the readmission right afforded
members of LIUNA must be exercised within
twelve (12) months of a member's dues
delinquency, except where there is evidence
that such delay was the result of conduct
prohibited by the LIUNA Ethical Practices
Code, the LIUNA Ethics and Disciplinary
Procedure, or the LIUNA Constitutions. c) Post-Suit Proceedings Appellants asserted three claims in their complaint. First,
they claimed that the Union violated Sections 101 and 609 of the
LMRDA, 29 U.S.C. ßß 411, 529, because it: (i) refused to admit or
readmit them into Local 230; (ii) refused and/or interfered with
their ability to obtain employment; (iii) refused to provide them
with rights afforded to other Local 230 members; and (iv)
unlawfully disciplined them. Second, appellants claimed that
they were "wrongfully terminated, constructively terminated
and/or refused employment," in violation of Conn. Gen. Stat. ß
31-51. Finally, they claimed that the Union "tortiously
interfered" with their "employment and/or reasonable expectations
of employment." The Union's answer, filed in September 1997, asserted that
all three claims were time-barred and that the state law claims
were preempted by federal law. After answering, the Union moved,
inter alia, for summary judgment on limitations grounds. The
district court granted appellants an extension of time to respond
to the motion and to conduct limited discovery. In December
1997, Mercier moved to withdraw as appellants' counsel. The
district court granted the motion, and appellants proceeded pro
se from that point until they retained new counsel on appeal. The district court issued an interim ruling following oral
argument, in which it concluded that "further submission by the
[appellants] would assist the court." Thereafter both parties
filed numerous additional documents with the court. In May 1999,
the district court dismissed the complaint. The district court concluded that the LMRDA claim was barred
because Cooksey and Wall failed to file suit within three years
from the date the Union first denied their requests for
readmission in 1992 and 1993, respectively. The district court
rejected appellants' claims that the Union's conduct constituted
a "continuing violation," Wall at 5-6, and that the statute of
limitations had been tolled. As to the state law claims, the district court first decided
to exercise supplemental jurisdiction over them pursuant to 28
U.S.C. ß 1367. See Wall at 10. It nevertheless dismissed the
claims on the ground that Section 301 of the LMRA, 29 U.S.C. ß
185, preempts claims that are "inextricably intertwined with
consideration of the terms of [a] labor contract," id. at 11
(quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213
(1985)), and both state law claims were considered to be
"'inextricably intertwined' with interpretation of the Union's
Constitution," id. at 11-12. This appeal followed. DISCUSSION a) LMRDA Claim Section 101(a)(2) of Title I of the LMRDA -- the "Bill of
Rights" -- guarantees members "the right to meet and assemble
freely . . . and to express any views, arguments, or opinions"
concerning union policies. 29 U.S.C. ß 411(a)(2). Section 609
of the LMRDA protects members from being fined, suspended,
expelled, or "otherwise discipline[d]" for "exercising any right
to which [they] are entitled under the provisions of this
chapter," which includes Title I. 29 U.S.C. ß 529. Appellants
contend that the Union refused to readmit them, interfered with
their ability to obtain employment, refused to provide them with
rights afforded to others, and unlawfully disciplined them
because of their dissident activities, in violation of the LMRDA. The district court concluded, and the parties agree, that a
three-year statute of limitations applies to appellants' LMRDA
claim. See Reed v. United Transp. Union, 488 U.S. 319, 323
(1989) (holding that actions brought under ß 101(a)(2) of LMRDA
are governed by state law limitations period applicable to
personal injury actions); Conn. Gen. Stat. ß 52-577 (Connecticut
personal injury limitations period is three years). The Union
rejected Cooksey's first request for readmission in April 1992
and Wall's first request in August 1993. The instant suit was
filed on May 15, 1997. Concluding that the statute began to run
on the date of the respective first denials, the court granted
summary judgment. 1) The Right to Readmission Although the district court dismissed the complaint as time-barred, it also concluded that there was a material issue of fact
as to whether appellants had a right to readmission. The Union
argues on appeal that appellants, their dues having been in
arrears for more than a year, had, as a matter of law, no such
right. Because this issue is central both to the underlying
dispute and to the limitations issue, we address it now. Local 230 is affiliated with LIUNA, and, as such, is
governed by LIUNA's Uniform Local Union Constitution
("constitution"). The constitution delineates various rights of
union members, including a right to "readmission." The pertinent
provision states that, "all persons having lawfully acquired
membership in the Union, shall be entitled to the following
rights: . . . [including the right] [t]o readmission."
Constitution, art. III, ßß 2, 2(e). With regard to membership, the constitution states that "to
be eligible . . . a person must be working at the calling within
the territory of the Local Union in which the individual applies
for membership." Id. at art. III, ß 1(a). Various other
requirements for membership include the rule that an applicant
"must tender to the Local Union . . . the initiation fee, dues
and other lawful fees and assessments that prevail in said Local
Union." Id. at art. III, ß 1(e). The constitution requires that
members pay dues, or lose eligibility for membership. Id. at
art. III, ß 1(e); art. VIII, ß 4. Article VIII of the constitution -- titled "Initiation Fees,
Readmission Fees, Dues and Assessments" -- states: The readmission fee for persons who are
suspended for nonpayment of dues, assessments
or fines to the Local Union and who remain
suspended for a period of less than one year,
shall be the amount of such assessments or
fines, plus the current dues, plus the
greater of [two amounts] . . . for each month
during which the member was suspended. In no
case shall the readmission fee be greater
than the initiation fee. Once the member has been suspended for
defaulting in the payment of dues . . . the
date of suspension . . . shall be the first
day after the month for which the member's
dues were last paid. Persons in arrears have no right to
attend meetings nor any other rights except
the right to be readmitted in accordance with
the above Section. . . . Readmitted members shall be
considered new members from the date of their
readmission. Id. at art. VIII, ßß 6, 7. Local 230 concedes that there is no express limitation in
the constitution on the right to readmission. It argues,
however, that any such right is limited to the twelve months
beginning with the initial delinquency in dues. This contention
is seemingly based on an inference drawn by the Union from the
above-quoted language in Article VIII of the constitution.
Arguably, a more plausible meaning is that former members have
priority to membership over new applicants but are otherwise
treated like new members. Indeed, the Union's correspondence
appears at times to use "readmission," "reinitiation," and
"initiation" interchangeably. However, Local 230 also argues
that there is a longstanding interpretation or practice that
limits the right to readmission to 12 months' duration after a
member's unresolved delinquency arises. We disagree. The language of the constitution does not unambiguously --
to say the least -- support the Union's view. Moreover, on the
present record, the claim of the Union as to a longstanding
interpretation or practice regarding a 12-month rule is not
sufficient to resolve the issue as a matter of law. The Union
has hardly been consistent in asserting the 12-month rule even
with regard to appellants. In addition, appellants have
submitted affidavits indicating that other members in arrears for
more than a year were readmitted without difficulty. We agree with the district court, therefore, that there is
"evidence sufficient to support a jury finding" that "the Union
has not consistently enforced a twelve-month time limit on
members' readmission rights." Wall at 4-5 (citing to affidavits
filed in opposition to motion). 2) Equitable Estoppel and Tolling Under federal law, "a claim generally accrues once the
plaintiff knows or has reason to know of the injury which is the
basis of his action." Cornwell v. Robinson, 23 F.3d 694, 703 (2d
Cir. 1994) (internal quotations and citations omitted). However,
a defendant "may be equitably estopped from asserting the statute
of limitations 'in cases where the plaintiff knew of the
existence of his cause of action but the defendant's conduct
caused [the plaintiff] to delay in bringing his lawsuit.'"
Buttry v. General Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995)
(quoting Cerbone v. International Ladies' Garment Workers' Union,
768 F.2d 45, 50 (2d Cir. 1985)). To trigger the doctrine of
equitable estoppel, a plaintiff must show that: (i) "the
defendant made a definite misrepresentation of fact, and had
reason to believe that the plaintiff would rely on it"; and (ii)
"the plaintiff reasonably relied on that misrepresentation to his
detriment." Buttry, 68 F.3d at 1493. In the present matter, appellants' claim is based on an
allegedly discriminatory refusal by the Union to readmit them to
membership. Knowledge of this claim sufficient to start the
limitations period required an act by the Union denying
eligibility for membership. Arguably, the first act of the Union
indicating an unequivocal decision to deny readmission to
appellants occurred only in December 1995 when appellants were
prevented from signing the referral list -- and then only
temporarily -- followed the next month by the Union's claim that
they were "barred persons" under the LIUNA Ethics Code. We need
not fix the precise time at which appellants knew of their claim
because, even before the events of late 1995/early 1996, the
Union provided appellants with false and misleading
justifications as to why they could not be readmitted at a
particular time, while holding out the promise that readmission
would follow referral to a job. Because appellants reasonably
took these justifications at face value and delayed bringing
their action, the Union is estopped from interposing a
limitations defense even if appellants knew of their claim in
1992. The first denial of appellants' readmission requests clearly
stated that both appellants could become union members again if
they were referred for employment. The Union told Wall that he
would be considered eligible for membership "[u]pon [his]
referral or employment at the calling." It told Cooksey that it
was "suggest[ing] that [Cooksey] defer [his] application of
reinstatement until [he] bec[a]me employed either by referral,
recall, or on [his] own initiative." Both men thereafter
attempted to be referred to work by signing the referral list, a
reasonable action given the constitution's conditioning of
membership upon "working at the calling." In March and April 1995, when the Union rejected appellants'
second formal requests for readmission, the Union again stated
that it would take "no new initiations or readmissions unless and
until there is a job to which the applicant can be referred."
However, in December 1995 the Union tried to prevent appellants
from signing the referral list -- an act guaranteeing, of course,
that neither individual would or could be referred for work.
Both complained to Bearse and were allowed once again to sign the
list. When Wall again requested readmission to membership, the
Union took the position that Wall "may be a barred individual . . . [and] referr[ed] this matter to the Inspector General's
Office." In June 1996, Luskin rejected the "barred persons"
claim and instructed the Union to allow appellants back into the
Union. In July, Wall was finally referred for work. Despite
having been told several times that he could become a member upon
referral, however, he was denied membership. In a July 1996 letter, Luskin indicated that the Union now
claimed that appellants were barred from membership by the 12-month rule. Noting the lack of constancy in the Union's
position, Luskin rejected this new claim. In that and in the
earlier letter in June, Luskin stated, in no uncertain terms,
that appellants were entitled to exercise their right to
readmission notwithstanding the Union's claims of barred conduct
or a limited duration of the readmission right. Accordingly,
Luskin "directed" the Union to permit appellants to exercise
their readmission right. The Union leadership refused and, only
after appellants filed suit, ultimately convinced Luskin to
reverse his opinion. There is more than sufficient undisputed evidence in this
record, as recounted above, to demonstrate that the Union
intended to prevent appellants from ever being readmitted to
membership and sought to conceal that intent by equivocal,
temporizing, and misleading denials based on the lack of
referral. Until late 1995, the Union clearly told appellants
that readmission would be granted upon referral. Later events
showed this to have been a misrepresentation. Relying upon these
clear, albeit false, promises, appellants did not bring suit but
sought referral. That action constituted reasonable reliance
that would clearly be detrimental if the present action were to
be deemed time-barred. Moreover, even after the Union leadership made clear its
adamant opposition to allowing appellants admission to the Union
in late 1995 and early 1996, appellants thereafter reasonably
sought to pursue internal Union remedies under LIUNA's agreement
with the Department of Justice. Luskin's position clearly
suggested that relief would be forthcoming from within the Union.
Indeed, arguably the sole unequivocal denial of readmission in
the course of appellants' pursuit of internal union remedies
occurred only after the suit was brought, when Luskin adopted the
leadership's position against readmission in September 1997. Because appellants pursued internal union remedies after the
leadership's true intentions were finally exposed in late
1995/early 1996, the limitations period was tolled thereafter.
Section 101 of the LMRDA provides that a union may not require
members to exhaust internal remedies for more than four months
prior to filing suit. See 29 U.S.C. ß 411(a)(4) ("No labor
organization shall limit the right of any member thereof to
institute an action in any court . . . . Provided, That any such
member may be required to exhaust reasonable hearing procedures
(but not to exceed a four-month lapse of time . . . before
instituting legal or administrative proceedings.)" The district
court did not decide whether tolling was appropriate on this
basis because it determined that the maximum period for which the
limitations could be tolled was four months, and years had passed
after the denial of appellants' initial requests for readmission
in 1992 and 1993 before suit was brought. See Wall at 8-9. We disagree with the district court's view that 29 U.S.C. ß
411(a)(4) sets a four-month maximum period of tolling while a
plaintiff pursues internal remedies. The intent of this
provision is to protect a member's right to seek redress in court
and to "prohibit[] unions from interfering with their members'
right to bring suit." Johnson v. General Motors, 641 F.2d 1075,
1079 (2d Cir. 1981). It is not the provision's purpose to force
members to sue prematurely before they have fully exhausted
administrative remedies. Indeed, to read the provision in such a
manner impairs both the purpose of the provision to protect
members and the "policy of judicial noninterference in union
affairs." Johnson, 641 F.2d at 1079; see also Detroy v. American
Guild of Variety Artists, 286 F.2d 75, 79 (2d Cir. 1961)
(commenting on the "Congressionally approved policy of first
permitting unions to correct their own wrongs," and that "no
court [should] step in before the union is given its opportunity"
to take corrective action that may well "render a member's
complaint moot"). Other circuits that have addressed this issue have held that
it is appropriate to toll the statute of limitations beyond four
months where plaintiffs make bona fide efforts to exhaust
internal union remedies. See Dunleavy v. Local 1616, United
Steelworkers of Am., 814 F.2d 1087, 1089-90 (6th Cir. 1987)
(holding that tolling applies to pursuit of internal union
remedies even where plaintiff was not "legally required to appeal
his claim" internally, citing "the policy . . . which encourages
the self-governance of labor organizations through the
development of internal remedies"); see also Stevens v. Northwest
Ind. Dist. Council, United Bhd. of Carpenters, 20 F.3d 720, 730
(7th Cir. 1994) (holding that plaintiff cannot "indefinitely
delay resolution of labor disputes merely by bombarding his union
with tiresome requests for needless review," but agreeing that
tolling the applicable two-year statute of limitations may be
proper "during the time in which a union considers an initial but
untimely appeal") (internal citations and quotations omitted).
The reasoning of these cases applies here, and we believe that
the facts warrant tolling. The LIUNA constitution provides that "[a]ll members are
required to exhaust remedies." Constitution, art. III, ß 3(h).
Wall confirmed below that it was his understanding that he was
obligated to exhaust internal union remedies before filing suit
in federal court. The record is clear that, when the true
purpose of the leadership had been exposed in late 1995/early
1996, appellants sought to resolve the readmission dispute
internally, and LIUNA, through Luskin, conducted an investigation
of the matter. That investigation, in which appellants' attorney
and the Union took part, resulted in a determination by Luskin
that appellants were entitled to exercise their readmission right
and his "direct[ing]" that the Union permit appellants to do so
in July 1996. But the Union resisted, and additional letters
were exchanged. For these reasons, we believe that the
limitations period was tolled from late 1995/early 1996 at least
until appellants brought suit and arguably until Luskin's
reversal of position in September 1997. The district court therefore erred in dismissing appellants'
LMRDA cause of action on limitations grounds. b) State Law Claims The district court did not err, however, in dismissing
appellants' state law claims as preempted by the LMRA. Section
301 of the LMRA preempts claims that are "inextricably
intertwined with consideration of the terms of [a] labor
contract." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213
(1985). We agree with the district court that, "for preemption
purposes, the term 'labor contract' includes union
constitutions." Wall at 11 (citing DeSantiago v. Laborer's Int'l
Union of N. Am., Local No. 1140, 914 F.2d 125, 128 (8th Cir.
1990); Pruitt v. Carpenters' Local Union No. 225, 893 F.2d 1216,
1218-19 (11th Cir. 1990)); see also Shea v. McCarthy, 953 F.2d
29, 31 (2d Cir. 1992). The district court correctly concluded that the "gravamen of
[appellants' state law] claims is that the Union, by failing to
readmit them as members, has deprived them of the membership
benefits and job opportunities that they would have received had
they retained their membership status." Wall at 11. The state
law claims therefore require interpretation of the Union's
constitution -- "[o]nly by examining the Constitution can a court
decide whether the Union's refusal to readmit [appellants] as
members was indeed improper." Wall at 11. Because the state law
claims are clearly "inextricably intertwined" with consideration
of Local 230's constitution and the right of union members to be
readmitted into the union, they are preempted. We do note that the state law claims might be reframed as
Section 301 claims. However, appellants made no effort to assert
them as federal claims even when they were represented by counsel
and when the Union had asserted the defense of preemption. We
leave to the sound discretion of the district court whether, on
remand, to allow appellants leave to replead the claims in
question as arising under federal law. We have considered appellants' other arguments as to the
state law claims and find them to be without merit. CONCLUSION We reverse the dismissal of the LMRDA claim and affirm the
dismissal of the state law claims. FOOTNOTES 2. The district court concluded that there were genuine issues
of material fact as to whether appellants were "members" under 29
U.S.C. ß 402(o), such that they could "avail themselves of the
protection afforded by the LMRDA, which, by its terms, applies
only to union members." Wall v. Construction & General Laborers'
Union, Local 230, 3:97-CV-942, at 2-3 (D. Conn. May 5, 1999)
(unpublished ruling on appellees' motion to dismiss or for
summary judgment); see also Phelan v. Local 305 of the United
Ass'n of Journeymen, 973 F.2d 1050, 1055-57 (2d Cir. 1992)
(explaining that only members of union are entitled to LMRDA
protection). The district court explained that there was a
"factual dispute over the precise contours of the readmission
requirements," and that appellants "presented evidence sufficient
to support a jury finding in their favor" on the issue concerning
the unequal treatment they received when denied readmission.
Wall, at 4-5. We agree. 3. The position of GEB attorney was created in January 1995, by
the LIUNA Ethics and Disciplinary Procedure, which itself "was
established to assist LIUNA's voluntary internal reforms pursuant
to [the February 1995 a]greement between LIUNA and the United
States."
* The Honorable William Terrell Hodges, United States
District Judge for the Middle District of Florida, sitting by
designation.