Unpublished Disposition, 879 F.2d 865 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 879 F.2d 865 (9th Cir. 1988)

Stella HERNANDEZ, Plaintiff-Appellant,v.CIA MEXICANA DE AVIACION, S.A.; International Associationof Machinists & Aerospace Workers, AFL-CIO, Local142, Defendants-Appellees.

No. 88-6350.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 4, 1989.Decided July 5, 1989.

Before POOLE, BEEZER and TROTT, Circuit Judges.


Stella Hernandez appeals from a grant of summary judgment in favor of defendants CIA Mexicana de Aviacion, S.A. ("Mexicana") and International Association of Machinists & Aerospace Workers, AFL-CIO, Local 142 ("Union"). The district court found that the Union did not breach its duty of fair representation. We affirm.

* Hernandez, a reservations sales representative and member of the Union, was employed by Mexicana from January 1980 until November 1986. The Union and Mexicana were parties to a collective bargaining agreement ("CBA") which established a four-step grievance procedure culminating in arbitration. Hernandez was terminated by Mexicana for chronic poor attendance. She was represented by the Union at two half-day pretermination hearings, and, after her discharge on November 21, 1986, the Union grieved her termination through three steps of the established grievance procedure. On March 13, 1987, the Union informed Hernandez that it had decided not to take her grievance to arbitration. On April 14, 1987, Hernandez filed suit in district court against Mexicana and the Union. In her first amended complaint, Hernandez alleged that Mexicana breached the CBA by firing her for cumulative poor attendance during her seven years with Mexicana. Hernandez also alleged, as a prerequisite to suit, that the Union breached its duty of fair representation.

After a brief period of discovery, each of the parties filed motions for summary judgment. After a hearing, the district court orally granted defendants' motions for summary judgment. On July 12, 1988, the district court entered a written order, memorandum and judgment granting defendants' summary judgment but denying their request for sanctions. While stating that the merits of Hernandez' claim for breach of the CBA were "quite dubious," the district court declined to reach that issue, concluding instead that Hernandez had failed to establish a breach by the Union of its duty of fair representation. She timely appeals.


We review a grant of summary judgment de novo, examining the record in the light most favorable to the nonmoving party. Moore v. Bechtel Power Corp., 840 F.2d 634, 636 (9th Cir. 1988). We determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.


An employee subject to a CBA who makes her union the exclusive bargaining agent may maintain an action for breach of a CBA if she can show, as a prerequisite, that her union breached its duty to represent her fairly. Vaca v. Sipes, 386 U.S. 171, 186 (1967).1  For a union to breach its duty of fair representation, its conduct in handling the grievance must be "arbitrary, discriminatory, or in bad faith." Vaca, 386 U.S. at 190; Johnson v. United States Postal Service, 756 F.2d 1461, 1465 (9th Cir. 1985). Our approach to applying the duty of fair representation has been recently outlined:

[W]e ask first whether the act in question involved the union's judgment, or whether it was "procedural or ministerial." If it is a union's judgment that is in question ... the plaintiff may prevail only if the union's conduct was discriminatory or in bad faith. Arbitrariness alone would not be enough. Only when the challenged conduct was procedural or ministerial does arbitrariness become controlling.

Salinas v. Milne Truck Lines, Inc., 846 F.2d 568, 569 (9th Cir. 1988) (quoting Moore, 840 F.2d at 636 (citations omitted)).

It was Hernandez' contentions at the district court level that the Union breached its duty of fair representation by (1) agreeing to an allegedly illegal two-day extension of her pretermination hearing, and (2) failing to take her grievance to arbitration because of personal animosity towards her.2  The district court determined that both of these claims "border on the frivolous." We are inclined to agree.

Hernandez argues that the Union's failure to obtain a written agreement to extend the pretermination hearing from five to seven days constitutes an arbitrary procedural decision.3  The CBA at issue provided that discharge hearings shall be held within five working days from the date written notice is given of the employer's intent to take disciplinary action. Article XX-C of the CBA further states that deviations from the rules are to be by written mutual agreement "between the Station Manager, the Union Steward and the full-time Union Representative."

We have recently addressed the issue of whether a procedural or ministerial omission on the part of a Union would rise to the level of arbitrary conduct, and hence give rise to a breach of duty claim. In Banks v. Bethlehem Steel Corp., 870 F.2d 1438, 1443 (9th Cir. 1989), after discussing previous cases in which union conduct was deemed arbitrary, we concluded that particular conduct will constitute arbitrary union behavior where the conduct "place [s] the union in a situation where it either could not or would not make an informed judgment regarding the merits of individual claims."4  The Union's failure to obtain a written extension agreement clearly had no effect whatsoever on the Union's judgment regarding the validity or merits of Hernandez' claim. Furthermore, unlike the situations in which we found a union's conduct arbitrary, the Union's oral extension agreement in this case steered far from extinguishing any of Hernandez' rights. Indeed, as the district court found, Hernandez was able to continue working for six weeks as a result in part of the two-day extension.

Hernandez' other attempt to show breach of the duty of fair representation is equally unavailing. She contended that Eduardo Diaz-Green, the union official who represented her, decided against appealing her grievance to arbitration because of his animosity towards her rather than because of the merits of her grievance. See First Amended Complaint p 17. Hernandez, however, admitted during deposition that no personal antipathy existed between them. The evidence thus fails to raise a genuine issue of material fact, and the Union was entitled to judgment as a matter of law.


Because there exists no genuine issue of material fact with respect to whether the Union breached its duty of fair representation, Hernandez is therefore not entitled to proceed against Mexicana.


Appellee Mexicana has requested an award of attorneys' fees on appeal pursuant to Fed. R. Civ. P. 11, Fed. R. App. P. 38, and 28 U.S.C. § 1912. Rule 11 empowers the imposition of sanctions at the trial court level, not on appeal. See Fed. R. Civ. P. 1. We may, however, award attorneys' fees and double costs if the appeal is frivolous under Fed. R. App. P. 38 and 28 U.S.C. § 1912. Taylor, 729 F.2d at 656. An appeal is frivolous "when the result of the appeal is obvious and the arguments of error are wholly without merit." Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 212 (9th Cir. 1987). Such is the situation in this appeal. Furthermore, appellant failed to contain a jurisdictional statement in her opening brief as required by Ninth Circuit Rule 28-2.2, neglected to include relevant pleadings in her Excerpts of Record as required by Ninth Circuit Rule 30-1.2(e), and attempted to raise issues which were not directed to the court below. Such conduct is unworthy of a careful attorney. We award appellees double costs for defending this appeal.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. Rule 36-3


This action was brought under the Railway Labor Act ("RLA"), 45 U.S.C. §§ 151 et seq. (1986). While Vaca involved a claim under the NLRA, the RLA and NLRA are substantially identical, and cases decided under one are applicable to the other. Beers v. Southern Pacific Transp. Co., 703 F.2d 425, 428 (9th Cir. 1983). The RLA applies to the airline industry by virtue of 45 U.S.C. §§ 181-187


Hernandez has raised a host of new issues on appeal in an attempt to create genuine issues of material fact with respect to breach of the Union's duty of fair representation. Her opening brief, as appellees point out, "describes a case that bears only the faintest resemblance to the case previously considered by the District Court." Resp.Br. (Mexicana) at 12. It is well established that, absent exceptional circumstances, "appellants may not upset an adverse summary judgment by raising an issue of fact on appeal that was not plainly disclosed as a genuine issue before the trial court." Int'l Union of Bricklayers & Allied Craftsman v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985) (emphasis added). See also Taylor v. Sentry Life Ins. Co., 729 F.2d 652, 655-56 (9th Cir. 1984) (per curiam); Komatsu, Ltd. v. States Steamship Co., 674 F.2d 806, 812 (9th Cir. 1982). Because exceptional circumstances are not present, we decline to address these belated issues


By focusing on the Union's failure to secure a written agreement to the two-day extension, Hernandez has seemingly altered the argument presented at the district court level. Hernandez argued below that the pretermination hearing was time-barred and that the Union should have vigorously asserted this defense at the hearing. See CR 86 at 8. Nevertheless, her argument on appeal fails in any event, and we deem her argument below to be waived


We have found arbitrary conduct where the union failed: to inquire whether any union members witnessed or had information concerning an incident, Banks, 870 F.2d at 1444; to notify the employer of an employee's steward status, Galindo v. Stoody Co., 793 F.2d 1502, 1515 (9th Cir. 1986); to pursue timely a meritorious grievance, Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, 1274 (9th Cir. 1983); to consider individually the grievances of employees where the factual and legal differences among them were significant, Gregg v. Chauffeurs, Teamsters & Helpers Union Local No. 150, 699 F.2d 1015, 1016 (9th Cir. 1983); to permit employees to explain the events which led to their discharge before deciding not to submit their grievances to arbitration, Tenorio v. NLRB, 680 F.2d 598, 601 (9th Cir. 1982); to disclose its decision not to submit an employee's grievance to arbitration when she was deciding whether to accept a settlement offer from her employer, Robesky v. Quantas Empire Airways, Ltd., 573 F.2d 1082, 1091 (9th Cir. 1978)