Julian Encina, Plaintiff-appellant, v. Tony Lama Boot Company, Inc., et al., Defendants-appellees, 448 F.2d 1264 (5th Cir. 1971)

Julian Encina brought suit against his employer and his union seeking reinstatement to his job with back pay and restored seniority.¹  Alternatively, plaintiff requested that a special master be appointed to act as a professional arbitrator of his grievance under the collective bargaining agreement between the employer and the union. In the further alternative, he asked that the defendants be ordered to comply with the arbitration provisions of that agreement and that the union be ordered to process the grievance through arbitration at union expense.

We affirm the decision of the district court granting summary judgment for the defendants. The material facts and conclusions of law are fully set forth in Encina v. Tony Lama Company, 316 F. Supp. 239 (W.D. Tex. 1970), and need not be reiterated.

Although it was not a primary target on this appeal, we have considered whether summary judgment was appropriate where the employee raised an issue of bad faith and arbitrary conduct on the part of the union in failing to prosecute the employee's grievance through arbitration. Our court has held that the issue of bad faith must be generally determined by plenary rather than summary procedures. Riley-Stabler Construction Company v. Westinghouse Electric Corporation, 396 F.2d 274 (5th Cir. 1968), citing, Alabama Great Southern R.R. Co. v. Louisville & Nashville R.R. Co., 224 F.2d 1 (5th Cir. 1955); Azalea Meats, Inc. v. Muscat, 386 F.2d 5 (5th Cir. 1967). However, after full opportunity for discovery, this case was submitted on extensive depositions, affidavits and exhibits, and it clearly appears from the rather comprehensive record and the argument of counsel that the issues here are not evidentiary but legal.

Plaintiff's thrust does not hit subjective mental processes or state of mind, which is so often the situation in bad faith cases. Rather he argues that the undisputed conduct of the union was such as to show a breach of the union's duty of fair representation because of its arbitrary, perfunctory handling of the grievance, Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967). See Harris v. Chemical Leaman Tank Lines, Inc., 437 F.2d 167, 171 (5th Cir. 1971). Being able to resolve the legal issues thus presented without the need of choosing among conflicting evidence and without making credibility choices between the witnesses, and being offered no further evidence that would create issues as to material facts, the district court properly determined the case on motions for summary judgment.²  Miles v. Dickson, 387 F.2d 716 (5th Cir. 1967).

In Lomax v. Armstrong Cork Company, 433 F.2d 1277 (5th Cir. 1970), a decision entered after this case was decided in the court below, we affirmed a summary judgment in a similar case and said:

"Although a union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory manner, an employee does not have an absolute right to have any grievance taken to arbitration * * *." 433 F.2d at 1281.

The real crux of this case is the fact that the union refused to use its funds to finance arbitration, on the ground that the chances of success were slight, but nonetheless offered to request arbitration if plaintiff would pay the expenses.³  That plaintiff finds it less expensive to litigate in Federal court because of our in forma pauperis procedure⁴  is not sufficient ground to require this forum to displace that agreed to by the parties. Allegations of a whole range of union conduct that plaintiff finds less than acceptable do not provide the thrust to put plaintiff's complaints into the orbit of the Federal court jurisdiction where it appears as a matter of law that his particular case received no less attention than that to which it was entitled.

Affirmed.