dissenting:
I respectfully dissent because the undisputed facts establish that Ina King’s lawsuit against her union and her former employer is barred by the six-month statute of limitation. In returning this case to the District Court for fact-finding, the majority unsettles the law concerning hybrid section 301/fair representation suits and creates an undefined exposure to damage suits that employers are entitled to believe are time-barred. Moreover, the majority does not instruct the District Court what issues are to be tried, now that summary judgment has been disallowed.
King’s own complaint reveals that the following facts are undisputed: King’s employer denied her step-four grievance on October 1, 1982, the union had thirty days under the collective bargaining agreement to demand arbitration, the union did not demand arbitration within thirty days, King learned on August 2, 1983, both that her step-four grievance had been denied and that arbitration was then being demanded, and King’s suit was not filed until February 24,1984, fifteen months after the union had failed to make a timely demand for arbitration and more than six months after King knew the facts concerning the union’s conduct.
The majority acknowledges that King’s cause of action accrued when she “knew or reasonably should have known” that the union had breached its duty of fair representation in the processing of her grievance against her employer. See Santos v. District Council, 619 F.2d 963, 969 (2d Cir.1980). The action of the union, alleged to be in breach of its duty, was its failure to make a timely demand for arbitration of King’s grievance. Whether that failure was an instance of unfair representation or a legitimate determination that the grievance lacked sufficient merit to warrant arbitration remains to be determined, but the failure, even if actionable, indisputably occurred on November 1, 1982, the end of the thirty-day period for demanding arbitration after the step-four grievance had been denied. King knew of the union’s failure no later than August 2, 1983, when the union told her it was then requesting arbitration. *37At that point she had six months to bring this lawsuit. DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 169-71, 103 S.Ct. 2281, 2293-94, 76 L.Ed.2d 476 (1983). She sued after the six-month period.
The majority allows King’s time-barred claim to survive the summary judgment motions of the union and the employer because, in its view, “there is no basis upon which to conclude that King knew or had reason to know on August 2, 1983, that her claims against NYTEL and the Union had accrued.” It is hard to see why the undisputed facts fail to furnish such a basis. The only factual issue clearly identified by the majority as one requiring resolution on remand is “whether the Union led King to believe that her grievance would be submitted to arbitration with NYTEL.” But that “issue” is not in dispute at all. All parties agree that the union did lead King to believe that her grievance would be submitted to arbitration with the employer. They all agree that this happened on August 2, 1983. But by then it was already nine months too late to submit the grievance to arbitration. I do not understand why an employer that has bargained for a thirty-day limit on demanding arbitration remains liable to suit when a union does not demand arbitration until nine months after the thirty-day period has expired and the employee does not sue until more than six months after learning of the union’s delinquency.
The majority identifies two reasons for challenging Judge McLaughlin’s conclusion that King knew or should have known no later than August 2, 1983, that her cause of action had accrued. First, she may not have known that the collective bargaining agreement allowed only thirty days to demand arbitration. Second, she may have thought that the union had preserved its right to demand arbitration. These possibilities ought not to keep this suit alive. In the first place, King does not even allege, in her complaint or her affidavit opposing summary judgment, that she was unaware of the thirty-day time limit for demanding arbitration. In fact her affidavit suggests the contrary; she states, “The fact that the collective bargaining agreement says the union has thirty (30) days from the denial of the Step 4 grievance to request arbitration, did not make me believe the union was acting in bad faith____” In any event, the law was clear, until today, that an employee is charged with knowledge of those terms of a collective bargaining agreement concerning the processing of grievances. See Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299, 304 (7th Cir.1983), cert. denied, 464 U.S. 1070, 104 S.Ct. 976, 79 L.Ed.2d 214 (1984); Illis v. United Steelworkers, 615 F.Supp. 1081, 1085 n. 3 (D.V.1.1985); Hull v. Local 414, International Brotherhood of Teamsters, 601 F.Supp. 869, 873 (N.D.Ind.1985). Though the employee in Metz had even less justification for delaying suit than did King, the case is indistinguishable in its holding that the employee “knew, or at least should have known, that under the provisions of the contract the time to elect arbitration had arrived____” 715 F.2d at 304 (emphasis added).1 As for the possibility that King *38may have thought that the union had “preserved” its right to demand arbitration, she makes no claim to this effect.2
Apparently the majority believes that when a union fails to arbitrate an employee’s grievance within the time provided by the contract and thereafter tells the employee that it will demand arbitration, the employee need not sue within six months of learning of the union’s default but can wait up to six months after the employer rejects the union’s untimely demand for arbitration. That is a curious rule because it leaves the employer exposed to suit for as long as the union exceeded the contractual time period for processing the grievance. Perhaps the majority would not apply this rule to let an employee sue if the union waited a period of years before making its untimely demand for arbitration, but the District Court is given scant basis for knowing how to apply the rule to determine whether this suit is timely. I would simply agree with Judge McLaughlin that the employee must sue, at the latest, within six months of learning that the union has not timely sought arbitration and would therefore uphold the limitations defense on the undisputed facts. At a minimum, if the limitations defense warrants further consideration, I would tell Judge McLaughlin what fact issues remain to be resolved.
. One decision in our Circuit contains language in a-footnote that might be read to suggest that whether an employee knows the time periods for taking grievance appeals pursuant to a collective bargaining agreement is a question of fact. See Schum v. South Buffalo Railway Co., 496 F.2d 328, 331 n. 4 (2d Cir.1974), cert. denied, 425 U.S. 958 (1976). The employee in Schum alleged that he had been informed by his union, within a few days of his discharge, that the union would process his grievance through the appellate procedures outlined in the collective bargaining agreement. The union failed to take a timely administrative appeal, and the employee sued his employer and the union after learning of the union’s failure to appeal. The employer defended on the ground that the employee’s failure to exhaust his contractual remedies was not excused by the union’s failure to take a timely appeal because the collective bargaining agreement gave the employee the right to process his grievance personally. We held that an employee who reasonably relies on his union to process his grievance need not exhaust his contractual remedies before bringing suit. We remanded for a determination of whether the employee’s reliance on the union was reasonable.
Neither the opinion nor the footnote purports to decide whether an employee’s knowledge of *38the time periods for taking grievance appeals is relevant to the reasonableness of his reliance on his union or whether an employee is charged with knowledge of the terms of a collective bargaining agreement. The footnote was merely a response to the employer's argument that the employee's deposition testimony indicated that the employee knew of the time period for processing an appeal. We noted that, insofar as the employee’s actual knowledge of the appellate procedures was relevant, it would be improper to resolve the issue as a matter of law on a summary judgment motion by crediting the portions of the record relied upon by the employer. We did not thereby reject all other legal bases for determining the employee’s knowledge of his contract rights because we were not then faced with either the argument or the issue. Therefore, I would not read Schum to upset the settled rule that an employee is deemed to have knowledge of timeliness requirements for pursuing grievances contained in a collective bargaining agreement.
The sentence quoted from Schum by the majority to the effect that employees lack the expertise to interpret collective bargaining agreements was not written to support a holding that an employee is not charged with knowledge of a clearly expressed arbitration deadline for employee grievances; rather, it was written to support the quite different proposition that an employee's understandable lack of familiarity with the full range of the agreement’s provisions means that the employee need not personally pursue an administrative remedy. It seems odd to enlist it to support rejection of the defense that an employee waited beyond the limitations period to complain that the union had failed to pursue an administrative remedy.
. It is entirely understandable why King refrains from making any claim that she thought the union had "preserved” a right to seek arbitration, a claim the majority is willing to read into her complaint. To make such a claim, she would have to acknowledge that she knew the normal time for seeking arbitration ended on November 1.