Unpublished Disposition, 919 F.2d 147 (9th Cir. 1989)

MEMORANDUM^**

Plaintiff appeals grant of defendants' motion for summary judgment in his action alleging breach of duty of fair representation against defendant International Brotherhood of Electrical Workers, Local Union No. 1245 ("Union") and wrongful discharge against defendant Pacific Gas & Electric Company ("PG & E") on the ground that the district court erred in finding no genuine issue of material fact as to whether the Union had fulfilled its duty of fair representation. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff was an employee of defendant PG & E in Belmont, California, and a member of defendant Union. In 1984, he began to experience an attendance problem, and was given a number of warnings that his absences could jeopardize his job. From August through December 1985, plaintiff was on special assignment in Bakersfield, California. During this period, he had a perfect attendance record. However, once back in Belmont, plaintiff's attendance difficulties returned.

After several absences, plaintiff was fired near the end of January 1986. Plaintiff filed a grievance with the Union pursuant to Title 102 of the collective bargaining agreement between PG & E and the Union. Under the collective bargaining agreement, plaintiff is limited to this recourse unless the Union fails to fulfill its duties. In accordance with the agreement, a Local Investigating Committee was established to consider this complaint, but could not agree on a disposition. The grievance was then considered by the next level of review under the agreement, the Fact Finding Committee composed of four people, two members representing the Union and two members representing PG & E. After considering the report of the Local Investigating Committee and plaintiff's entire attendance record, the Fact Finding Committee unanimously upheld PG & E's action.

Subsequently, the Union continued to pursue plaintiff's grievance. The Union took the matter to arbitration. However, the arbitrator refused to examine plaintiff's complaint on the merits, and decided only that the decision of the Fact Finding Committee was binding on all parties.

Plaintiff filed this action on January 13, 1988, alleging that the Union did not fulfill its duty of fair representation of the plaintiff in his grievance, and that his discharge was unlawful. Defendant PG & E moved for summary judgment on January 29, 1989, on the grounds that plaintiff's only recourse for an employment grievance was pursuant to the collective bargaining agreement, that the appropriate procedure had been followed to its conclusion and against plaintiff, and that the Union did not violate its duty of fair representation in dealing with plaintiff's dispute. This motion was granted on March 15, 1989 as to both defendants.¹  Plaintiff filed timely notice of appeal on March 30, 1989.

DISCUSSION

A district court's grant of summary judgment is reviewed de novo. The panel must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant law. Moore v. Bechtel Power Corp., 840 F.2d 624, 636 (9th Cir. 1988); Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986). The sole question on appeal is whether an issue of material fact exists as to whether the union breached its duty of fair representation to the plaintiff. If this is the case, then plaintiff may pursue individual remedies against defendant PG & E, as well as recover against defendant Union for breach of its duty. Vaca v. Sipes, 386 U.S. 171, 186 (1967).

A union has very broad authority in the negotiation and administration of a collective bargaining agreement. This authority is accompanied by an equally broad responsibilty, the duty of fair representation. Humphrey v. Moore, 375 U.S. 335, 342 (1964). This duty is only breached when a union's "conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." Vaca, 386 U.S. at 190.

The Ninth Circuit has construed the unfair representation doctrine in a manner designed to protect the union's broad authority. Moore, 840 F.2d at 636; Johnson v. United States Postal Service, 756 F.2d 1461, 1465 (9th Cir. 1985). Under this interpretation, the courts distinguish between acts which involve the union's judgment, and those which are "procedural or ministerial." Peterson v. Kennedy, 771 F.2d 1244, 1254 (9th Cir. 1985), cert. denied, 475 U.S. 1122 (1986); Galindo v. Stoody Co., 793 F.2d 1502, 1514 (9th Cir. 1986). Where the challenged conduct is of a procedural or ministerial nature, the union breaches its duty with arbitrary, discriminatory, or bad faith conduct. However, where the union's judgment is at issue, a plaintiff may only prevail where the union's conduct was discriminatory or in bad faith. Moore, 840 F.2d at 636; Peterson, 771 F.2d at 1254-55.

Plaintiff contends that Mr. Tom Danzell's declaration shows that the Union did not completely examine his attendance record in pursuing his grievance. Plaintiff characterizes this as a failure to complete a procedural task, the arbitrary performance of which breached the union's duty of fair representation. Mr. Danzell declared that the Union erred in its handling of plaintiff's grievance, and that the "Union would not have agreed to uphold plaintiff's discharge originally but for its disregard for the facts surrounding plaintiff's case."

However, the record shows that plaintiff's attendance record was before the Fact-Finding Committee. As noted by defendant PG & E, Mr. Danzell's declaration does not indicate that the Union was unaware of plaintiff's attendance while in Bakersfield, but rather that the Union disregarded this information. Therefore, if the Union did commit an error, it was one of judgment concerning the plaintiff's grievance, and is not challengable except for bad faith or discrimination. Moore, 840 F.2d 633; Peterson, 771 F.2d at 1254-55; Castelli v. Douglas Aircraft Co., 752 F.2d 1480, 1482-83 (9th Cir. 1985). cf. Dutrisac v. Caterpillar Tractor Co. 749 F.2d 1270, 1274 (9th Cir. 1983) (failure to meet filing deadline for grievance is a ministerial error).

Under this standard of review, the Union clearly did not breach its duty of fair representation since no evidence exists that the Union's actions were made in bad faith or discriminatorily. The district court's grant of summary judgment is AFFIRMED.