Unpublished Disposition, 842 F.2d 1294 (9th Cir. 1987)

MEMORANDUM^* 

This appeal arises out of claims by Leon Sanders, a black union member, against Hughes Aircraft Company (Hughes), Electronic and Space Technicians, Local 1553, AFL-CIO (the Union), and the Equal Employment Opportunity Commission (EEOC), alleging discriminatory treatment violative of Title VII, breach of the collective bargaining agreement, breach of the Union's duty of fair representation, and a conspiracy to deprive him of his right to redress grievances.¹ 

On March 9, 1987, the district court granted the Union's motion for summary judgment, finding that as a matter of law, the Union's conduct in determining not to pursue Mr. Sanders' grievances was not arbitrary, discriminatory or in bad faith. Mr. Sanders' motion for reconsideration was denied on April 23, 1987.

In addition to denying Mr. Sanders' motion, the court granted Hughes' motion for summary judgment, finding that as to Mr. Sanders' Title VII claims, no genuine issue of material fact existed which could support an inference of race discrimination. A similar finding was made concerning Mr. Sanders' claim of conspiracy.²  Lastly, the court found that Mr. Sanders' failure to exhaust his contractual remedies barred any claim that Hughes had breached the collective bargaining agreement.

Mr. Sanders appeals the district court's award of summary judgment to the Union and Hughes. This court has jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the decisions of the district court.

A grant of summary judgment is reviewed de novo. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractor's Ass'n, 809 F.2d 626, 629 (9th Cir. 1987). The appellate court's review is governed by the same standard used by the trial court under Fed. R. Civ. P. 56(c). Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). Thus the appellate court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact, and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986).

Mr. Sanders alleges that the Union and Hughes engaged in race discrimination in violation of Title VII, by failing to promote him,³  or allow him overtime work, and in unfairly reprimanding him. This contention is without merit.

Mr. Sanders has repeatedly sought a promotional upgrade from "Drill Operator Machined Parts B" to "Drill Operator Machined Parts A". He claims that on at least two occasions, he had seniority and yet was not promoted because of his race. He alleges that the Union and Hughes collectively prevented him from obtaining the promotion he was due although they both knew he had the most seniority. Mr. Sanders filed a formal grievance following the promotion of a Mr. Mickes. However, while he alleges race discrimination in connection with the promotions of a Mr. Nat, there is nothing in the record establishing that Mr. Sanders ever filed a formal complaint with the Union regarding Mr. Nat's promotions. He did, however, file grievances related to the denial of requested overtime work and the reprimands that he had received.

The Union and Hughes have maintained that race had nothing to with Mr. Sanders' failure to be promoted, lack of overtime work assignments, or with his receipt of reprimands. The Union investigated Mr. Sanders' grievances, determined that they were meritless, and thus decided against referring them to arbitration. Specifically, the Union found that Mr. Mickes had more seniority than Mr. Sanders. The Union also found that there was no overtime work available to anyone on the dates alleged, and that the quality of Mr. Sanders' work merited the reprimands he had received.

In granting summary judgment, the district court found:

1) that Hughes' employment records showed that Mickes in fact had more seniority than Mr. Sanders;

2) that Mr. Sanders had failed to offer evidence sufficient to show that the reprimands he received were wrongful; and

3) that Mr. Sanders' race discrimination claim regarding overtime work was similarly unsupported by the evidence.

As for Mr. Sanders' claims regarding the promotion of Mr. Nat, the district court stated that the claims must fail since Mr. Sanders never presented the court with evidence documenting Mr. Nat's hiring date or bargaining unit seniority. Id.⁴ 

There are two ways a plaintiff may prove race discrimination: disparate treatment and disparate impact. Based on the record, Mr. Sanders' fails to establish a prima facie case under either theory. In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court enunciated the requirements for a prima facie case of disparate treatment in promotions. The plaintiff must show:

1) that s/he belongs to an ethnic minority;

2) that s/he applied and was qualified for an open position;

3) that despite his/her qualifications, s/he was denied promotion; and

4) that after denial, the position remained open and the employer continued to seek applicants with the plaintiff's qualifications.

Id. at 802. Alternatively, a plaintiff may establish a prima facie case of disparate treatment by "offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under [Title VII]." Teamsters v. United States, 431 U.S. 324, 358 (1977).

There is not sufficient evidence in the record to establish an inference of discrimination under a disparate treatment theory. In addition, Mr. Sanders failed to produce evidence establishing that he had more seniority and was qualified for the promotions he sought. Moreover, the Union and Hughes presented credible evidence supporting their defense that even if Mr. Sanders had been eligible for promotion based on seniority, his poor work performance would have precluded him from receiving the promotion.

Similarly, Mr. Sanders did not present evidence sufficient to establish a prima facie case of disparate impact. Under this theory, the plaintiff "carries the burden of demonstrating that the challenged employment practices produce a significantly discriminatory selection pattern." Eldredge v. Carpenters Joint Apprenticeship Comm., 833 F.2d 1334, 1338 (9th Cir. 1987) (citations omitted). Mr. Sanders alleged that there is an absence of Blacks in supervisory positions at Hughes. However, Mr. Sanders did not present the district court with the personnel records, statistical studies, or other evidence necessary to support such an allegation.

As plaintiff, Mr. Sanders had both the burden of proof and the burden of production. Given that Mr. Sanders failed to present to the district court the evidence necessary to make his discrimination claims credible, the district court properly awarded summary judgment in favor of the Union and Hughes.

Mr. Sanders also argues that the Union breached its duty of fair representation. He claims that the Union acted in bad faith by failing to process his grievances, thereby violating its duty. We disagree.

The Supreme Court has long granted unions broad discretion to do what they believe is in the best interests of their members. See, e.g., Ford Motor Co. v. Huffman, 345 U.S. 330, 337-38 (1953). To that end, this court has emphasized that "courts should 'accord substantial deference' to a union's decisions regarding such matters." Peterson v. Kennedy, 771 F.2d 1244, 1253 (9th Cir. 1985) (citation omitted), cert. denied, 475 U.S. 1122 (1986). Moreover, a union's representation of its members "need not be error free." Castelli v. Douglas Aircraft Co., 752 F.2d 1480, 1482 (9th Cir. 1985). Thus, some wrongful conduct will not violate a union's duty. Peterson, 771 F.2d at 1253 ("mere negligent conduct on the part of a union does not constitute a breach of the union's duty of fair representation.").

Rather, a "union breaches its duty of fair representation only when its conduct toward a member of the collective bargaining unit is 'arbitrary, discriminatory, or in bad faith.' " Peterson, 771 F.2d at 1253 (quoting Vaca v. Sipes, 386 U.S. 171, 190 (1967)). Thus, "unions are not liable for good faith, non-discriminatory errors of judgment made in the processing of grievances." Peterson, 771 F.2d at 1254.

Mr. Sanders alleges that the Union's decisions not to pursue his grievances were made in bad faith. He offers no explanation as to how he has reached this conclusion. Having failed to articulate facts essential to support a generalized claim of bad faith, the error alleged by Mr. Sanders amounts to one of judgment. In such a case, this court will respect the decision of the Union. Since Mr. Sanders failed to allege facts sufficient to support his claim of bad faith, the court properly awarded summary judgment in favor of the Union.

Mr. Sanders' claims against Hughes arise under section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, which allows actions in federal court to enforce collective bargaining agreements. Mr. Sanders alleges that Hughes breached its collective bargaining agreement with the Union by reprimanding him for poor workmanship, denying him overtime work, and promoting other employees with less job seniority. Hughes correctly responds that Mr. Sanders failed to exhaust his remedies under the collective bargaining agreement and that his claim is thus precluded.

Over a period of almost one and one-half years, Mr. Sanders filed various grievances with the Union, alleging violations of the collective bargaining agreement by Hughes. The Union, in each instance, determined that the grievances warranted no action on behalf of Mr. Sanders.

The Supreme Court in Vaca v. Sipes, 386 U.S. 171 (1967), held that before an employee may resort to judicial action, the employee must exhaust the remedies provided in his/her collective bargaining agreement. Id. at 184. Mr. Sanders failed to exhaust the grievance procedures provided in his collective bargaining agreement. This failure precludes any action against Hughes unless it falls within one of the two exceptions recognized by the Supreme Court in Vaca v. Sipes.

The first exception to the exclusive remedy rule is where the union wrongfully refuses to process the employee's grievance, thereby breaching its duty of fair representation. Id. at 185; Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, 1274 (9th Cir. 1983). As discussed previously, there are no facts to support a claim for breach of the Union's duty of fair representation. Thus, this exception is inapplicable.

The second recognized exception arises when the employer's conduct amounts to repudiation of the contractual grievance procedures, thereby estopping the employer by his own conduct from relying on the unexhausted grievance procedures as a defense to an employee's action against it. Vaca, 386 U.S. at 185. In the instant action, Mr. Sanders does not allege that Hughes failed to comply with the contractual procedures of the collective bargaining agreement. Rather, he claims that the Union wrongfully determined that his grievances lacked merit and would not be pursued.

Due to Mr. Sanders' failure to show adequately facts which would bring his action within one of the outlined exceptions, his failure to exhaust the contractual grievance procedures is fatal to his claims under section 301. Thus the district court's grant of summary judgment was proper.

The district court correctly found that Mr. Sanders failed to present any triable issue of fact to support his claims of discrimination, violation of the duty of fair representation, or breach of the collective bargaining agreement.⁵  The decisions of the district court awarding summary judgment to the Union and Hughes are therefore AFFIRMED.