Unpublished Disposition, 841 F.2d 1129 (9th Cir. 1988)

MEMORANDUM^* 

John Rizo appeals from a grant of summary judgment claiming that his union violated its duty of fair representation by declining to arbitrate his discharge from the Vacaville Sanitary Service. The United States District Court for the Eastern District of California held that Rizo failed to come forward with sufficient evidence of arbitrary, discriminatory, or bad faith treatment by the union to satisfy the test for triable issues under Fed. R. Civ. P. 56. See Celotex v. Catrett, 106 S. Ct. 2548 (1986). We review the grant of summary judgment de novo. Acri v. Machinists Lodge 115, 781 F.2d 1393, 1397 (9th Cir.), cert. denied, 107 S. Ct. 73 (1986).

Rizo's central claim is that the union acted in less than good faith in investigating his case and then deciding not to arbitrate. The applicable law in this circuit was stated succinctly in Castelli v. Douglas Aircraft Co., 752 F.2d 1480 (9th Cir. 1985):

An employee has no absolute right to have a grievance taken to arbitration, but a union may not arbitrarily ignore a meritorious grievance nor process it perfunctorily. On the other hand, the grievance process need not be error free--to constitute a breach of the duty of fair representation, more than a mere error of judgment must occur.

Id. at 1482 (citations omitted). Under Castelli, a plaintiff must show at least "reckless disregard for the rights of an employee" by the union. Id. (citations omitted).

We have carefully reviewed the record and find no evidence of "a pattern of conduct on the part of the union which shows that it breached its duty." Castaneda v. DuraVent Corp., 648 F.2d 612, 618 (9th Cir. 1981). The evidence was undisputed that Rizo was granted, and availed himself of, a long series of procedural hearings and opportunities to convince the union of the merits of his case. Rather than support a claim of discriminatory treatment, the evidence that Rizo produced went to the issue of whether the union acted negligently or erroneously in deciding not to arbitrate. We are bound, however, to accord substantial deference to unions' decisions "whether and to what extent to pursue a particular grievance," and "alleged errors in the union's evaluation of the merits of a grievance," without more, amount only to " 'simple negligence' insufficient to establish a breach of the duty [of fair representation]." Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, 1273 (9th Cir. 1983).

We affirm the district court's judgment on the duty of fair representation issue. We do not reach the statute of limitations or exhaustion of remedies questions.

AFFIRMED.