Unpublished Disposition, 865 F.2d 263 (9th Cir. 1988)

MEMORANDUM^* 

We consider whether the union breached its duty of fair representation by failing to file a grievance within the time limit specified in the Collective Bargaining Agreement and whether it conducted an adequate investigation.

BACKGROUND

The United Food and Commercial Workers Union, Local 274 AFL-CIO, represented the employees of Leo's Quality Foods, Inc. In November 1984, Fredrick Richman, Leo's attorney, informed Donald Holeman, president of Local 274, that Leo's was being sold to Stephen Whittington, would close down business and discharge its employees effective that day and that the new company would not likely hire any of Leo's employees.

Holeman scheduled a union membership meeting for Monday, November 19, and made an appointment with the union's attorney, Glen Rothner, to discuss the closure and sale of Leo's. At the union meeting Holeman relayed the information given to him by Richman. He told the members that the union was investigating a claim that Whittington's operation was Leo's alter ego and that it would notify them if a grievance was filed. Holeman told the employees that the sale did not appear to be a sham to avoid the union contract, explained their rights under the CBA and encouraged them to apply for jobs with the new company. Holeman and Rothner then met to discuss what action the union might take.

The union filed no grievance. Appellants claimed that it breached its duty of fair representation by failing to file a timely grievance and failing to conduct an adequate investigation. The district court granted summary judgment in favor of the union. We review de novo. Moore v. Bechtel Power Corp., 840 F.2d 634, 636 (9th Cir. 1988).

Duty of Fair Representation Analysis

In exchange for a union's exclusive bargaining rights, the Supreme Court imposes a duty of fair representation. Id. at 636. The union breaches its duty when its acts are arbitrary, discriminatory or in bad faith. Vaca v. Sipes, 386 U.S. 171, 190 (1967).

To determine whether the union breached its duty, we ask whether the act in question involved the union's judgment or whether it was procedural or ministerial. Moore, 804 F.2d at 636. If the union exercised its judgment, then it breaches its duty of fair representation only if the conduct was discriminatory or in bad faith. If the act in question was procedural or ministerial, the union breaches its duty only if the conduct was arbitrary. Id.

Appellants characterize the union's failure to file a grievance as a ministerial omission subject to the arbitrary standard.¹  They rely on Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270 (9th Cir. 1983), where we classified the union's failure to file timely a meritorious grievance as arbitrary conduct and found a breach of the union's duty. Id. at 1273-74. Their reliance is misplaced.

The arbitrary standard is inapplicable where the union evaluates a claim, finds it meritless and thereafter fails to perform a ministerial act. Eichelberger v. NLRB, 765 F.2d 851, 855 n. 7 (9th Cir. 1985).

In all cases in which we found a breach of the duty of fair representation based on a union's arbitrary conduct, it is clear that the union failed to perform a procedural or ministerial act, that the act in question did not require the exercise of judgment and that there was no rational and proper basis for the union's conduct ... We have never held that a union has acted in an arbitrary manner where the challenged conduct involved the union's judgment as to how best to handle a grievance....

Peterson v. Kennedy, 771 F.2d 1244, 1254 (9th Cir. 1985), cert. denied, 475 U.S. 1122 (1986).

A union exercises its judgment when it evaluates a grievance and decides not to pursue it. We may not deem a union's failure to file arbitrary simply because it evaluated incorrectly the merits of a grievance. Id. at 1254.

The union here considered a number of grievances, including the possibility of an alter ego claim, within the time period specified in the CBA and decided not to pursue any charge.²  When attorney Rothner and Holeman met on the first business day after the sale, they believed there was insufficient information to establish an alter ego charge. They discussed filing grievances under Article XXIX of the CBA, examined the possibility of bringing an unfair labor practice charge with the National Labor Relations Board and considered asserting successorship rights. Rothner warned against aggressive union action fearing that the new employer might hire fewer employees. They decided within the time specified in the CBA not to file any grievance.

When a union, as here, exercised its judgment by deciding not to pursue a meritless grievance and not to aggravate a new employer, appellants prevail only if the union acted in bad faith or with discrimination. See Peterson, 771 F.2d at 1254. Disagreement between a union and a member standing alone is not evidence of bad faith even when the grievance has merit. Moore, 804 F.2d at 637. Appellants presented no evidence of bad faith or discrimination. Without such evidence, we accept the union's judgment and find no breach.

Appellants contend that the union breached its duty by conducting a perfunctory investigation. A union acts arbitrarily when it ignores a meritorious grievance or handles it in a perfunctory manner. Vaca, 386 U.S. at 191. It must perform at least a minimal investigation, the thoroughness of which varies with the circumstances. Evangelista v. Inlandboatmen's Union of Pac., 777 F.2d 1390, 1395 (9th Cir. 1985). Although special care must be exercised when handling a discharge grievance, extensive investigation is unnecessary where additional evidence would not have altered the union's decision. Id. at 1395-96. Refusing to process a meritless grievance, cannot alone be deemed arbitrary. Eichelberger, 765 F.2d at 857 n. 10

The union did not ignore a meritorious grievance or handle it in a perfunctory manner. See, e.g., id. (president's reading of letter several times considered sufficient investigation). After Holeman and attorney Rothner met, Rothner researched the possibility of filing an alter ego grievance and of asserting rights under the CBA. He reviewed the CBA, talked with his colleagues, and discussed the transaction with Leo's attorney, Richman.

Appellants complain that the union failed to obtain transactional documents, did not return phone calls and did not investigate the identity of supervisory and management personnel.³  Rothner discussed the transactional documents with Richman and later found them to be as described. Examining the documents would not have influenced materially the union's judgment. See Peterson, 771 F.2d at 1255. Although appellants called the union they did not allege they had information which would have altered its decision. The union need not obtain explanations from every grievant to satisfy its duty. Evangelista, 777 F.2d at 1395. The union did ask appellant Lemus to investigate the identity and number of employees hired by Whittington. Further investigation would not have aided the union.

Because we find no breach, we do not decide whether in a duty of fair representation claim a court may award emotional distress damages or whether there is a right to jury trial.

AFFIRMED.