concurring in part and dissenting in part:
I concur in that part of the majority’s opinion dismissing appellants’ suit against RF & P for lack of subject matter jurisdiction. Clearly, the position taken by RF & P is “arguable” or “not obviously insubstantial,” and thus a “minor” dispute under the RLA. I also agree with the majority’s conclusion that appellants failed to state a claim that UTU breached its duty of fair representation in either entering into the Crew Consist Agreement or in presenting Koenig’s claim before the Board. I cannot, however, support the majority’s view that appellants have alleged sufficient facts to support a third separate claim of breach of a duty of fair representation stemming from UTU’s failure to obtain an alleged promise to amend the Crew Consist Agreement.
In order “[t]o establish a breach of the duty of fair representation, the appellants must show that [UTU’s] conduct was arbitrary, discriminatory or in bad faith.” (citations omitted). The majority freely admits that UTU’s conduct in negotiating the Crew Consist Agreement fell far short of this standard. Nor did the majority find merit in appellants’ allegation that UTU mishandled Koenig’s claim before the Board. The majority’s sole basis for reversal in this case is that UTU failed to seek to amend the Crew Consist Agreement when RF & P may have been willing to amend. It is clear from the facts of this case, however, that UTU was under no duty to seek an amendment of the Crew Consist Agreement. Nor are there facts to support the majority’s assertion that Vice-President Harden affirmatively promised that he would seek such amendment.
Assuming, arguendo, that UTU did breach its duty of fair representation in regard to this issue, appellants’ claim must nonetheless fail as barred by the six-month statute of limitations. Appellant Koenig was initially denied benefits in February, 1982. According to appellants’ complaint, Dement contacted the President and Vice-President of UTU in January, 1983, in an attempt to have the Crew Consist Agreement changed. On June 1, 1984, the Board rejected Koenig’s claim. Subsequent to that ruling, Dement informed Hardin that he intended to hire an attorney and file suit. Hardin responded by letter dated July 13, 1984, stating that, inter alia, “[t]he decisions by Public Law Boards are final and binding on both parties.” Appellants did not file their original complaint until November 12, 1986, more than two years after learning of the Board’s final decision, and over four years after the initial denial of benefits to Koenig. The majority inexplicably concludes, however, that due to certain vague assertions by Hardin that he would attempt to “resolve” the matter, the appellants have now stated a continuing independent cause of action based on a duty to amend the Crew Consist Agreement which avoids the statute of limitations. In my view, the district court correctly found that “plaintiffs [were] bound to have known after at least a year following [the] 1984 [Public Law Board rai-*465ing on Koenig’s claim] that the United Transportation Union wasn’t going to take any action that would do them any good.”
For the foregoing reasons, I would affirm the district court’s decision with respect to both UTU and RF & P. Therefore, I respectfully dissent from that part of the majority’s opinion remanding this case for further proceedings in connection with appellants’ claim that UTU acted in bad faith when it failed to seek to amend the Crew Consist Agreement.