Unpublished Disposition, 860 F.2d 1088 (9th Cir. 1988)

MEMORANDUM^* 

The Union appeals a judgment for damages for breach of the duty of fair representation owed by the Union to its member, Brown. We reverse.

The Union decided not to present a grievance requested by Brown. The district court concluded the grievance had merit, and that the union violated its duty of fair representation by acting arbitrarily in considering Brown's request.¹  The court faulted the Union on three procedural matters: the Union did not seek legal advice on Brown's contract claim; it did not take a formal vote on his request a grievance be filed; and it did not give Brown individual notice of the meetings at which his request was discussed.

We assume the grievance had merit, although that may be doubtful. We do not agree, however, the Union breached its duty to Brown in the procedures it followed in determining not to submit the grievance.

The only relevant testimony as to the first procedural default--the failure to seek legal advice--is that union representatives discussed both Brown's contractual claim and his statutory claim with the union's attorney. R.T. 117-19.

Failure to take a formal vote on whether to file a grievance did not violate the duty owed Brown, in the circumstances disclosed in the record. The record is uncontradicted that Brown's request was discussed and denied by a consensus of those present at the Union meetings. R.T. 69, 122-24. There was no requirement that a formal vote be taken. Even if a formal vote had been required, its omission, after a discussion had been held and a consensus reached, would not "prejudice a strong interest of the employee." Galindo v. Stoody Co., 793 F.2d 1502, 1514 (9th Cir. 1986).

Finally, where, as here, a grievance concerns only an issue of contract interpretation, failure to give individual notice does not breach the duty of fair representation. See, e.g., Moore v. Bechtel Power Corp., 840 F.2d 634, 637 (9th Cir. 1988); Evangelista v. Inlandboatmen's Union, 777 F.2d 1390, 1397 (9th Cir. 1985); Freeman v. O'Neal Steel, Inc., 609 F.2d 1123, 1126-27 (5th Cir. 1980).

REVERSED.