Unpublished Disposition, 845 F.2d 329 (9th Cir. 1988)

MEMORANDUM^* 

Lawrence Moore (Moore) appeals from the district court's grant of summary judgment to all defendants in his action alleging breach of contract under section 301 of the Labor Management Relations Act (LMRA), breach of the union's duty of fair representation, and union discipline in violation of 29 U.S.C. § 411(a) (5). We affirm.

FACTS

On April 29, 1985, Moore was hired by L & B Electric, Inc. (L & B) to work on a department store remodeling project. On May 14, 1985, Moore was assigned to the graveyard shift. On June 3, 1985, L & B terminated Moore's employment in connection with a reduction in the graveyard shift workforce.

On June 6, 1985, Moore filed a grievance with Local 569 of the International Brotherhood of Electrical Workers Union (Union) against L & B under the terms of the Inside Agreement that governed the work. In the grievance, Moore alleged that he had been wrongfully terminated for complaining about late paychecks, that his pay for working on the swing and graveyard shifts had been miscalculated, and that L & B had breached the Inside Agreement by using non-union workers to remove electrical materials, equipment, and apparatus from the site.

The Union Business Manager, Paul Blackwood (Blackwood), received the grievance and assigned Thomas Pridemore (Pridemore) to investigate. Pridemore questioned two witnesses named by Moore regarding his claim of wrongful termination. These witnesses stated that Carlos Lima (Lima), the job supervisor, had said that Moore was laid off because of his complaints. Pridemore questioned Lima about the reason for Moore's lay-off but did not confront him with the witnesses' statements. Pridemore also questioned other workers and determined that they had no information concerning the reasons for the termination of Moore's employment.

The questions of shift pay and non-union materials handling were essentially matters of contract interpretation. The evidence shows that Pridemore contacted the I.B.E.W. International regarding the interpretation of the contract language governing shift pay, because the language was uniform in similar contracts throughout the country. Pridemore stated that he did not seek an interpretation of the contract language governing the removal of electrical material from the job site by non-union workers because Lima informed him that that task was not covered by the contract. Pridemore questioned the persons removing the electrical materials. These non-union workers confirmed that they were not employed by L & B.

After Pridemore completed his investigation, the Union decided to proceed with the grievance. The first step was to present the grievance to the Labor-Management Committee (Committee). Blackwood directed Moore to represent himself at the hearing before the Committee. Wayne Lovin was assigned to assist him. The Committee heard the grievance on July 9, 1985. Because Moore was dissatisfied with the Union's presentation of his grievance, he was allowed to submit his own version of the facts and his interpretation of the contract.

On July 18, 1985, the Committee decided that the shift pay had been miscalculated and awarded Moore a net of $27.14. The Committee deadlocked on the issues of wrongful termination and the handling of the electrical materials.

The Union then submitted those unsettled grievances to the Council on Industrial Relations (CIR) for the Electrical Contracting Industry, as required by the Inside Agreement. The Inside Agreement provided that a hearing before the CIR was the final step in the grievance process and that its decision would be binding.

Moore was not notified of the date of the CIR hearing. Blackwood testified during his deposition that Moore should have been notified by mail of the CIR hearing. Blackwood also stated that Union members whose grievances were referred to the CIR were not invited to attend its hearings in Washington, D.C.

On July 29, 1985, Richard Robbins (Robbins), the I.B.E.W. International Representative, sent a letter to the secretary of the CIR expressing his opinion that Moore's claims were without merit. There is no evidence that anyone responsible for deciding Moore's grievance ever saw the letter. On August 13, 1985, the CIR heard Moore's case and ruled that L & B had not violated the Inside Agreement.

On February 26, 1986, Moore filed this action in the district court. He alleged that L & B breached the Inside Agreement. In addition, he alleged that the Union, Blackwood and Lovin breached their duty of fair representation and imposed improper discipline in violation of the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 411(a) (5).

On May 11, 1986, the district court granted summary judgment in favor of all defendants.

STANDARD OF REVIEW

We review de novo the granting of a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986); Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir. 1983). Our duty is to determine whether, viewing the evidence in the light most favorable to the nonmoving party, there is a genuine issue as to a material fact. Anderson, 106 S. Ct. at 2510.

UNION BREACH OF DUTY

A union owes a duty of fair representation to the employees it represents. Humphrey v. Moore, 375 U.S. 335, 350 (1964). When a union's conduct involves an exercise of judgment or discretion, such as, for example, when it interprets a collective-bargaining agreement or determines how best to process an employee's grievance, no breach of duty will be found unless the employee shows that the union acted discriminatorily or in bad faith. Moore v. Bechtel Power Corp., No. 85-6320, slip op. 2651, 2656 (9th Cir. Mar. 3, 1988); Peterson v. Kennedy, 771 F.2d 1244, 1253-55 (9th Cir. 1985), cert. denied, 106 S. Ct. 1642 (1986).

On the other hand, when the union's conduct involves ministerial or procedural matters, an employee can establish a breach of duty by showing that the union's failure to act was arbitrary. Moore, slip op. at 2656. Reckless disregard of the employee's rights is sufficient to establish liability. Johnson v. United States Postal Service, 756 F.2d 1461, 1465 (9th Cir. 1985). In addition, mere negligence is sufficient to establish liability when the union's failure completely extinguishes the employee's right to pursue a grievance in which a strong individual interest is at stake. Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, 1274 (9th Cir. 1983).

Moore asserts that the Union breached its duty of fair representation through a number of actions or omissions motivated by the Union representatives' hostility toward Moore. Specifically, Moore alleges that the Union failed to conduct a proper investigation, mishandled the presentation of his grievance before the Committee, and failed to inform him of the date of the CIR hearing.

a. The Union's Investigation and Presentation of the Grievance

Moore argues that Pridemore failed to question witnesses, arbitrarily rejected Moore's interpretation of the Inside Agreement on the shift pay issue, and failed to seek an interpretation of the Inside Agreement on the materials handling issue. Moore also complains that Blackwood appointed Lovin, Moore's political enemy, to assist Moore in the presentation of his grievance, disagreed with Moore's interpretation of the Inside Agreement regarding shift pay, failed to present a claim that Moore was laid off due to complaints about asbestos, and failed to present witnesses at the Committee hearing. In addition, Moore alleges that the Union representatives acted in bad faith because they were motivated by hostility toward Moore.

A union must investigate grievances brought to its attention, Tenorio v. NLRB, 680 F.2d 598, 601 (9th Cir. 1982), but may exercise reasonable discretion in deciding how best to handle the grievances. Id. As noted above, absent bad faith or discriminatory conduct, a union's manner of presentation of the grievance will not support a claim of breach of duty. Peterson, 771 F.2d at 1254.

The uncontroverted evidence shows that Pridemore investigated Moore's claims. Pridemore also questioned relevant witnesses. Moore requested that the Union call only one of those witnesses to testify before the Committee on his behalf. The record does not reveal whether that witness was actually called. The witness did not attend the hearing. The Union did, however, present the affidavits of both that witness and one other to the Committee. The evidence also indicates that Moore acquiesced in the appointment of Lovin to assist with the presentation of the grievance.

With respect to the asbestos claim, the evidence reveals that Moore complained to Blackwood about asbestos levels on the job. Blackwood replied that Moore should complain to Cal-OSHA, not the Union. The record does not show that Moore complained to the Union that his lay-off was based in part on complaints about asbestos levels at the job site. Moore did not file any grievance regarding asbestos levels.

The uncontroverted facts in this case show that the Union investigated Moore's complaint. No evidence indicates that the Union acted in reckless disregard of his rights. Pridemore's investigation was not so perfunctory as to amount to a breach of the duty of fair representation.

Moore relies on Hughes v. International Bhd. of Teamsters, 554 F.2d 365 (9th Cir. 1977) to support reversal of the order granting summary judgment. In Hughes, we reversed a summary judgment in favor of defendants on the ground that the employee's evidence raised an inference of improper motivation in the Union's refusal to arbitrate the employee's discharge. The employee in Hughes had submitted affidavits showing that the company's practice was to fire employees who insisted on enforcement of the collective bargaining agreement. The affidavits in Hughes also stated that the union representative either told the complaining employees "not to rock the boat" or ignored their grievances. Id. at 368. In addition, the evidence showed that there had been no investigation of the employee's claim. Id.

To support his contention that the Union representatives were hostile toward him, Moore cites evidence that Pridemore expressed his dislike for Moore from the first time he met him, that Moore had filed charges and suits against Blackwood and Lovin, that Moore had recently run unsuccessfully against Lovin in a Union election, and that Robbins sent a letter to the CIR secretary criticizing Moore's case.

This evidence might support a finding that the Union's representatives were generally hostile to Moore. It does not support a finding, however, that the Union ignored or sabotaged his grievance or pursued it in other than a routine manner. Moore did not present any evidence that the Union's alleged hostility prejudiced the processing of his grievance. His reliance on Hughes, therefore, is inappropriate. The district court did not err in finding that there was no genuine issue of material fact as to the claimed breach of the duty of fair representation.

b. The Union's Failure to Notify Moore Regarding the CIR Hearing

Moore alleges that the Union's failure to notify him of the upcoming CIR hearing amounted to a breach of the Union's duty of fair representation.

A union's failure to perform a ministerial duty amounts to a breach of duty when the union acts in reckless disregard of the employee's rights, Moore, slip op. at 2657, or negligently extinguishes an employee's right to pursue a claim that is based on a strong individual interest. Dutrisac, 749 F.2d at 1274.

Moore offered no evidence that suggests that the Union acted in reckless disregard of Moore's rights. The Union's failure to notify Moore was at most mere negligence.

The interest at stake in the CIR hearing was a strong one. Moore had been laid off and was seeking reinstatement and back pay. However, the Union's failure to notify Moore of the date of the hearing did not result in the complete extinguishment of his claim. To the contrary, officials of the Union attended the hearing and represented Moore on his claims of wrongful termination and the performance of work by non-union personnel. Because the Union's negligent failure to notify Moore did not extinguish his ability or right to pursue his claim, we find no breach of the duty of fair representation.

EMPLOYER BREACH OF CONTRACT.

When a collective bargaining agreement establishes a final and binding procedure for resolving disputes arising thereunder, an employee cannot bring an action directly against his employer under section 301 of the LMRA unless he first establishes that the union has breached its duty of fair representation. Margetta v. Pam Pam Corp., 501 F.2d 179, 180 (9th Cir. 1974); International Longshoremen's and Warehousmen's Union v. Pacific Maritime Ass'n, 441 F.2d 1061, 1065 (9th Cir. 1971), cert. denied, 404 U.S. 1016 (1972).

Moore alleges that because the rights involved here are personal rights, he can maintain an action directly against the employer under Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 511 (9th Cir. 1978). The court in Lerwill stated: " [T]his is not a case in which employees were required to exhaust procedures contained in the collective bargaining agreement as a prerequisite to commencing suit under section 301." Id. (emphasis added). Moore's reliance on Lerwill is misplaced. The Inside Agreement that governed the relationship between Moore and L & B provided for final and binding arbitration of grievances, through the Labor-Management Committee and the CIR. The record shows that the Union pursued the grievance through the steps prescribed in the contract and that the result reached by the CIR was final and binding.

Because Moore's claims against L & B were resolved through a final and binding grievance procedure, he cannot maintain an action under section 301 without first showing that the union breached its duty of fair representation. Margetta, 501 F.2d at 180. As discussed in Part III above, Moore has made no such showing. Therefore, the district court properly granted summary judgment on the section 301 claim.

IMPROPER UNION DISCIPLINE

Moore alleges that the Union deliberately mishandled his grievance in retaliation for his political activities in the Union. He claims that the Union's conduct constitutes improper discipline under 29 U.S.C. § 411(a) (5). Because Moore has not produced evidence to support his allegation that his grievance was mishandled, his claim of improper discipline must fail.

Accordingly, we AFFIRM.