Unpublished Disposition, 878 F.2d 1438 (9th Cir. 1989)

MEMORANDUM

McDonald appeals from a summary judgment entered in his hybrid suit against United Parcel Service (UPS) and the International Brotherhood of Teamsters and Warehousemen, Local 57 (Union). The district court found against McDonald on the issue of whether the Union breached its duty to fairly represent McDonald. The district court had jurisdiction under 29 U.S.C. § 185 and 28 U.S.C. § 1331. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

McDonald first argues that the Union acted arbitrarily in failing to (1) submit letters from customers to the joint conference board in a timely fashion, and (2) assert McDonald's charge of harassment. For the reasons stated by the district judge, we believe summary judgment was properly granted on these issues.

McDonald also argued that the Union's representation of him was discriminatory and in bad faith. The burden is on the movant to establish grounds for summary judgment. However, this burden may be met by movant "pointing out to the district court that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Such a showing shifts the burden to the nonmoving party to "designate 'specific facts showing that there is a genuine issue for trial.' " Id. at 324, quoting Fed. R. Civ. P. 56(e).

In order to prevail on a breach of fair representation claim, McDonald will be required "to adduce evidence from which the district court could infer either hostility ... or bad faith in the union's representation of him." Franklin v. Southern Pacific Transportation Co., 593 F.2d 899, 901 (9th Cir. 1979). McDonald alleged that Crouch did not pursue McDonald's grievance in good faith because McDonald supported Shay, a purported rival for Crouch's union office. However, McDonald was unable to produce any admissible evidence that the rivalry in fact existed, let alone caused Crouch to discriminate against or act in bad faith in his representation of McDonald. Consequently, by pointing out the lack of evidence on this essential element of McDonald's claim, the burden was shifted to McDonald to produce evidence that a genuine issue of material fact existed. McDonald's failure to produce such evidence makes summary judgment on this matter appropriate. Banks v. Bethlehem Steel Corp., 870 F.2d 1438 (9th Cir. 1989), is not to the contrary.

AFFIRMED.