Unpublished Disposition, 894 F.2d 409 (9th Cir. 1984)

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US Court of Appeals for the Ninth Circuit - 894 F.2d 409 (9th Cir. 1984)

Abraham GHEBRESELASSIE, Plaintiff-Appellant,v.COLEMAN SECURITY SERVICES, INC., et al., Defendants,andCalifornia Teamsters Public, Professional and MedicalEmployees Union Local 911, Defendant-Appellee.

No. 88-6122.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 4, 1989.Decided Jan. 25, 1990.

Before JAMES R. BROWNING, ALARCON and FERGUSON, Circuit Judges.


MEMORANDUM* 

OVERVIEW

Abraham Ghebreselassie was discharged from his job based on charges of theft of which he was later acquitted. An arbitrator found that he had been discharged without just cause but that his grievance had not been timely filed. He appeals the district court's grant of summary judgment in his suit for breach of the duty of fair representation. The district court's findings and the record as a whole demonstrate the existence of disputed issues of material fact. We therefore reverse.

FACTS AND PROCEEDINGS

Abraham Ghebreselassie worked as a parking lot cashier at Los Angeles International Airport from 1982 until April 1984. He was a member of defendant California Teamsters, Public, Professional and Medical Employees Union, Local 911 ("Union"). The union contract prohibited discharge without just cause and required that any grievance be filed within ten days. Once filed, grievances must be processed within seven days; extensions could be arranged by agreement between the employer, Parking Concepts, Inc. (PCI), and the Union.

Following a security investigation into theft of parking lot revenues through "ticket manipulation," Ghebreselassie was arrested on April 5, 1984, criminally charged with theft, and discharged from his job. On April 6, he received notice that he had been terminated from his job on April 5.

Immediately following his arrest, Ghebreselassie contacted his union representative, Ray Whitmer. Whitmer did not file a grievance with the company at the time. The district court's findings of fact show that Whitmer testified he decided not to file a grievance during the pendency of the criminal action, telephoned Len Iasparro of PCI, and arranged for an extension. The court also found that Iasparro denied making any agreement for an extension.

After Ghebreselassie was acquitted of the criminal charges, the union filed a grievance on his behalf which ultimately went to arbitration. At the arbitration, the union produced a "Speedy-Memo" from Whitmer to Iasparro which recounted an agreement for delayed filing of the grievance. The "Speedy-Memo" was dated April 4, 1984 and referred to the arrest of the cashiers on April 3, 1984.

The arbitrator found Ghebreselassie had been discharged without just cause but that the grievance had not been timely filed. A year later, in another stage of this litigation, the arbitrator made a declaration regarding the award which was attached by the union to its motion for summary judgment in the proceeding under review here. In the declaration, the arbitrator stated that the basis of his award was his belief that the statute of frauds required that the agreement be signed in order to be enforceable.

Ghebreselassie sued PCI for wrongful discharge, malicious prosecution, defamation, and other claims, and sued the Union for breach of the duty of fair representation. The union removed the suit to federal district court. The district court vacated the arbitrator's award and found for the company on several state law claims. On appeal, this court reversed the order vacating the arbitrator's award and remanded for further proceedings, Ghebreselassie v. Coleman Sec. Serv., 829 F.2d 892, 898-899 (9th Cir. 1987), cert. denied, --- U.S. ----, 108 S. Ct. 2900 (1988), and affirmed summary judgment for the employer on the negligence, defamation, and malicious prosecution claims, id. at 898.

On remand, the district court granted summary judgment for the union on the duty of fair representation claim, holding that no disputed issue of material fact existed. Ghebreselassie now appeals from the grant of summary judgment.

STANDARD OF REVIEW

The grant of summary judgment is reviewed de novo, viewing the evidence in the light most favorable to the non-moving party. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986). The court must decide whether there are any genuine issues of material fact and whether the district court correctly applied the law. Id.

DISCUSSION

In order for summary judgment to be appropriate, there must be no genuine issue as to any material fact. Fed. R. Civ. P. 56(c). In cases where the employee's interest is strong, such as grievances dealing with discharge, failure to timely proceed with grievances which the union has decided to pursue has been found to violate the duty of fair representation. Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, 1273-1274 (9th Cir. 1983). Since this grievance dealt with Ghebreselassie's discharge, the interest at stake was a strong one. The question of the existence of an agreement for an extension of time for filing the grievance is therefore material to the determination of whether the union breached its duty in this case.

The district court's findings of fact were drafted by the Union. The findings themselves reveal the existence of disputed issues which make summary judgment inappropriate, including the existence of conflicting testimony over whether any agreement existed at all. In paragraph 15 of its Statement of Uncontroverted Facts and Conclusions of Law, the district court found that PCI had agreed to the request for an extension, and in paragraph 29 it found that PCI's representative had testified that there was no such agreement.

Other findings are also inherently contradictory. In paragraph 3, the district court found that Ghebreselassie was arrested on April 5, 1984, and in paragraph 28, the court found that the Union representative swore that he mailed the "Speedy-Memo" memorializing the agreement for the extension on April 4, 1984. The memo, attached by the Union to its motion for summary judgment, is dated April 4 and does not mention Ghebreselassie by name. On its face and according to the district court's findings, the memo antedates Ghebreselassie's arrest. This demonstrates at the very least a disputed material issue of fact as to whether the memo actually referred to Ghebreselassie's grievance.

There is also internally contradictory evidence within the arbitrator's findings and award. At the summary judgment stage and on appeal, Ghebreselassie argued that the arbitrator's opinion is "conclusive, final and binding as to the matters of fact, law and issues determined therein." However, there is a difference in the deference we accord to an arbitrator's findings in suits challenging the merits of an award and those in which the union's representation of the employee is at issue. Galindo v. Stoody, 793 F.2d 1502, 1511-1512 (9th Cir. 1986). In this case, facial inconsistencies in the factual findings in the arbitration award make deference difficult. The arbitrator first recounted conflicting testimony by the Union and PCI regarding the existence of an agreement for an extension and then referred to the PCI testimony as "uncontested." Therefore, the ambiguity of the award itself shows the existence of a disputed issue of material fact regarding the existence of an agreement.

In an attempt to refute the inference that the arbitrator believed the PCI representative, the Union attached to its summary judgment motion the arbitrator's declaration explaining the award, which stated a different basis for his decision. If timely objection had been made, this declaration would not have been admissible. Alexander v. McNear, 28 F. 403, 406 (C.C.D. Cal. 1886). Since the objection was not made, the court may consider the declaration. Allen v. Scribner, 812 F.2d 426, 435 n. 18, modified in part 828 F.2d 1445 (9th Cir. 1987). However, admissibility does not make the declaration the conclusive interpretation of the arbitrator's award. Viewed in the light most favorable to the moving party, the declaration neither refutes nor impeaches the conclusions regarding the agreement which were stated in the original award.

Finally, the record presents evidence of another disputed issue which is material to resolving the fair representation claim. The arbitrator's opinion states that a PCI representative testified that their established procedure was to sign and return Speedy-Memos and that this was confirmed by Whitmer. Whitmer's declaration denies that he ever testified to a practice regarding time extensions. Obviously, there may be a difference between practices regarding memos and practices regarding time extensions, but the apparent differences in testimony show that a disputed factual issue may exist. In Dutrisac v. Caterpillar Tractor, the lack of evidence of reliance on past practice was found to be relevant in deciding a fair representation claim. 749 F.2d at 1273, n. 1 (union had failed to show evidence of past practice on which it claimed to rely). Therefore, this issue is also material.

CONCLUSION

Review of the district court findings and the record as a whole reveals the existence of disputed issues of material fact. The duty of fair representation claim cannot be resolved without a factual determination of whether an agreement existed between the company and the union to extend the filing of Ghebreselassie's grievance, and the determination of what customary or contractually determined practices existed for documenting agreements. We therefore REVERSE the grant of summary judgment.

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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.R. 36-3