Unpublished Disposition, 861 F.2d 268 (9th Cir. 1985)

MEMORANDUM^* 

The district court granted appellees' motions for summary judgment, holding that appellant's state tort claim for wrongful discharge against Publishers Paper Company ("Publishers") and her state handicap discrimination claim against Association of Western Pulp and Paper Workers, Local No. 68 and Association of Western Pulp and Paper Workers ("Union") were preempted by federal law. The district court further held that Publishers did not violate a state handicap discrimination law and did not breach the collective bargaining agreement. Finally, the district court held that the Union did not breach its duty of fair representation.

Appellant contends that the district court erred in granting the motions for summary judgment, arguing that the wrongful discharge claim against Publishers and the handicap discrimination claim against the Union are not preempted because they are based upon independent state rights. In addition, appellant contends that the state handicap discrimination claim against Publishers and the breach of the duty of fair representation claim against the Union should not have been dismissed as they raise genuine issues of material fact. Finally, appellant asserts that the claim against Publishers for breach of the collective bargaining agreement, which is dependent upon a finding of a breach of the duty of fair representation by the Union, also should have survived summary judgment.

STANDARD OF REVIEW

On appeal, appellant challenges the district court's grant of summary judgment in favor of Publishers and the Union. We therefore review all of the issues raised by this appeal de novo. Scott v. Machinists Automotive Trades Dist. Lodge No. 190, 827 F.2d 589, 591 (9th Cir. 1987).

DISCUSSION

I. State Tort Wrongful Discharge Claim Against Publishers

Appellant contends that her state tort claim for wrongful discharge is not preempted by section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a), because consideration of the state law claim is not dependent on analysis of the terms of the collective bargaining agreement. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212 (1985) (" [I]t would be inconsistent with congressional intent under [section 301] to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract."). Appellant asserts that the district court mischaracterized her claim as one to obtain disability benefits, when it was actually a claim that she was terminated in retaliation for requesting those benefits.

When resolution of a state law claim requires interpretation or analysis of the terms in a collective bargaining agreement, that claim is preempted by section 301. Lingle v. Norge Division of Magic Chef, Inc., --- U.S. ----, 108 S. Ct. 1877, 1881 (1988). In the instant case, in order to decide whether appellant's termination was in retaliation for requesting disability benefits, it would be necessary to interpret the provision of the collective bargaining agreement that discusses payment of disability benefits and termination of disabled employees. Thus, regardless of how appellant's state wrongful discharge claim is characterized, it is preempted by section 301 because it is "inextricably intertwined" with consideration of the terms of the collective bargaining agreement. Allis-Chalmers, 471 U.S. at 213.

II. State Handicap Discrimination Claims Against Publishers and the Union

For appellant's state handicap discrimination claim against Publishers to be timely under Oregon Revised Statutes (ORS) Sec. 659.425, she must have commenced her lawsuit within one year after receiving notice of her termination from Publishers. ORS Sec. 659.121(3). Appellant was informed of her termination on September 12, 1984; she filed suit on September 13, 1985. Under Oregon law, the day of the act (here, the date of receipt of the notice of termination) is not counted in computing the deadline for filing suit. Or. R. Civ. P. 10A; ORS Sec. 174.120. Therefore, appellant had one year beginning September 13, 1984 to commence her lawsuit against Publishers. This one year period ended on September 12, 1985. Because appellant did not file her lawsuit until one day later--September 13, 1985--her state handicap discrimination claim against Publishers is time-barred. See, e.g., Kirk v. Woods, 218 Or. 593, 346 P.2d 90, 92-93 (Or. 1959) (en banc) (where triggering event occurred on March 11, 1958, one year period began to run on March 12, 1958, and ended on March 11, 1959), rev'd on other grounds, 290 Or. 53, 618 P.2d 1265, 1267 (Or. 1980).

Appellant's handicap discrimination claim against the Union was properly subject to summary judgment because appellant failed to raise a genuine issue of material fact in support of her claim that the Union discriminated against her due to her physical handicap.¹  Even assuming that ORS Sec. 659.425(3) is not limited to union membership decisions,²  appellant's claim is not supported by facts that could reasonably lead a finder of fact to conclude that the Union's failure to pursue appellant's grievance through all available steps was due to the Union's discrimination against appellant because of her physical impairment. See California Architectural Building Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987), cert. denied, 108 S. Ct. 698, 699 (1988) (when non-moving party will bear burden of proof at trial as to element essential to its case, and that party fails to make a showing sufficient to establish genuine dispute of fact with respect to existence of that element, then summary judgment is appropriate) (citing Celotex Crop. v. Catrett, 477 U.S. 317, 322-23 (1986)). The decision not to pursue the grievance any further was based on the Union's judgment that the claim did not merit further efforts. This decision, absent any showing of discriminatory motives, does not raise a genuine issue that would need to be resolved at trial. See id.

Appellant's handicap discrimination claims are not frivolous. The claim against Publishers raises issues under Oregon law which, had the claim not been time-barred, would have merited attention. Both the appellant and the district court had problems calculating this rather tricky one-year limitations period. Nor is the claim against the Union so baseless as to warrant an award of attorneys fees to the Union. In these circumstances, we decline to exercise our discretion to grant attorneys' fees to the appellees under ORS Sec. 659.121.

Appellant's handicap discrimination claim is not frivolous. The claim raises issues under Oregon law which, had they not been time-barred, would have merited attention. Both the appellant and the district court had problems calculating this rather tricky one-year limitations period. In these circumstances, we decline to exercise our discretion to grant attorneys' fees to the appellees under ORS Sec. 659.121.

III. Breach of the Duty of Fair Representation Claim Against the Union

Appellant contends that the Union breached its duty of fair representation by (1) failing to inform her that Publishers planned to terminate her if her doctors testified at her personal injury trial that she was permanently disabled; (2) failing to object to Publishers' irrelevant comparison of her abilities to her original job, which had been eliminated; (3) failing to inform her of a union meeting at which withdrawal of her grievance would be considered; and (4) failing to inform her in a timely manner that her grievance had been withdrawn.

Under section 301, a union has a "statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Vaca v. Sipes, 386 U.S. 171, 177 (1967). However, to maintain the integrity of the arbitration process, unions must be given wide discretion to act in what they perceive to be their members' best interests. Johnson v. United States Postal Service, 756 F.2d 1461, 1465 (9th Cir. 1985). Thus, the grievance process need not be error free; more than a mere error of judgment must occur to constitute a breach of the duty of fair representation. Castelli v. Douglas Aircraft Co., 752 F.2d 1480, 1482 (9th Cir. 1985). Breach occurs only when a union acts in an arbitrary, bad faith, or discriminatory manner. Vaca, 386 U.S. at 177. Arbitrary conduct on the part of a union which harms an employee will result in a breach when procedural or ministerial acts are involved. Salinas v. Milne Truck Lines, Inc., 846 F.2d 568 (9th Cir. 1988). But, when a union's judgment is questioned, its conduct must have been discriminatory or in bad faith to constitute a breach; a showing of arbitrariness is not sufficient. Salinas, 846 F.2d at 568.

In the present case, the Union's failure to notify appellant of the meeting where her grievance would be discussed or the subsequent withdrawal of her grievance "was perhaps negligent, but not enough to constitute a breach of the union's duty of fair representation [particularly as no prejudice has been shown by appellant.]" Singer v. Flying Tiger Line Inc., 652 F.2d 1349, 1355 (9th Cir. 1981), rev'd on other grounds, 827 F.2d 1363, 1365 (9th Cir. 1987). In addition, the Union's failure to object to Publishers' allegedly irrelevant job comparison was a matter of judgment within the Union's discretion. Because appellant has not shown that the Union's behavior was based on discriminatory or bad faith motives, its failure to object was not a breach of the duty of fair representation. Finally, appellant's contention that the Union's failure to inform her of Publishers' intention to terminate her if her doctors testified that she was permanently disabled is equally untenable. Because there is no evidence that appellant's doctors testified untruthfully at the trial, we must assume that prior knowledge of Publishers' intentions by appellant would not have affected her termination.

IV. Breach of the Collective Bargaining Agreement Claim Against Publishers

To prevail against Publishers in her breach of the collective bargaining agreement claim, appellant would have to show not only that her "discharge was contrary to the contract, but [would also have to] carry the burden of demonstrating breach of duty by the Union." Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 571 (1976). Because we have found that the Union did not breach its duty of fair representation, appellant's breach of the collective bargaining agreement claim against Publishers also must fail. To hold otherwise would weaken the federal policy of finality in labor arbitration.

AFFIRMED.