Unpublished Disposition, 921 F.2d 280 (9th Cir. 1990)

MEMORANDUM^** 

Michael J. Luparello appeals the district court's grant of summary judgment in favor of Emery Air Freight Corporation ("Emery"). Luparello brought suit against Emery under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Luparello contends that Emery, as successor in interest to CF Airfreight, Inc., breached the collective bargaining agreement by not paying him 100% of the contractual wage rate. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

FACTS

At all relevant times, Luparello was an employee of CF Airfreight, Inc. and was represented in collective bargaining by Local 396, International Brotherhood of Teamsters ("Union"). Three documents constituted the collective bargaining agreement which governed Luparello's terms and conditions of employment.¹ 

Article 63, section 2 of the Western States Supplement sets forth a new hire wage scale. Employees receive 70% of the contractual rate during their first year of employment. This rate increases by 10% until the employee's fourth year, at which time the employee receives 100% of the contractual rate. This scale applies "only to those employers who hire fifty percent (50%) or more of new hires ... through the Local Union hiring hall or referral system." Western States Supp., art. 63, Sec. 2.

Luparello informed the Union that he believed he was entitled to 100% of the contractual rate because CF Airfreight had not hired 50% of its new employees from the Union hiring hall. Luparello filed a grievance, and the Union represented Luparello throughout three levels of review. Union representative Wayne Thompson presented Luparello's claim at a meeting between CF Airfreight and the Union, and at a subsequent hearing before the Joint State Committee. Union representative Ned Hines presented Luparello's claim before the Joint Western Area Committee after the Joint State Committee deadlocked over Luparello's claim.

The Western States Supplement provides that when the Joint Western Area Committee settles a dispute, the decision "shall be final and binding." Western States Supp., art. 45, Sec. 1(b). The Joint Western Area Committee rejected Luparello's claim.

Luparello then filed his section 301 claim in district court, and now appeals from summary judgment in Emery's favor.

DISCUSSION

We review de novo the granting of a motion for summary judgment. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986).

Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, provides an employee with a federal cause of action against an employer for breach of a collective bargaining agreement. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 562 (1976). Federal courts, however, must defer to the contractual procedures formulated by the parties to a collective bargaining agreement to resolve grievances. Id. at 562-63. If the collective bargaining agreement provides that a particular tribunal's determinations shall be "final and binding," an employee may not challenge an adverse determination unless the employee demonstrates that the union breached its duty of fair representation in processing the grievance. Id. at 570-71; see also Dickeson v. Daw Forest Prods. Co., 827 F.2d 627, 629 (9th Cir. 1987).

The employee need not sue both the employer and the union. See DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 165 (1983). An employee, however, still must demonstrate that the union breached its duty of fair representation if the employee chooses to sue only the employer in a section 301 action. Hines, 424 U.S. at 570-71.²  Therefore, Luparello first must demonstrate that the Union breached its duty of fair representation in processing his claim.

We narrowly construe the fair representation duty to protect a union's broad discretion to act in what it perceives is its members' best interests. Banks v. Bethlehem Steel Corp., 870 F.2d 1438, 1441 (9th Cir. 1989); Peterson v. Kennedy, 771 F.2d 1244, 1253 (9th Cir. 1985), cert. denied, 475 U.S. 1122 (1986). "To establish a breach of the union's duty of fair representation, an employee must show that the union's conduct towards him was 'arbitrary, discriminatory, or in bad faith.' " Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, 1272 (9th Cir. 1983) (quoting Vaca v. Sipes, 386 U.S. 171, 190 (1967)) .

Luparello argues that the Union arbitrarily failed to represent him fairly in processing his grievance. In support of this argument he contends that the Union representative, Hines, wrongfully argued to the Joint Western Area Committee that if Luparello was not entitled to 100% of the contractual wage rate, he at least should have been entitled to 80% of the wage rate. We disagree. Hines' argument does not evidence an arbitrary lack of fair representation in investigating or presenting Luparello's grievance. It reflects the Union's choice of tactics. Even if it could be said that this was the wrong tactical choice to make, we have held that an erroneous judgment made in presenting a claim is not arbitrary conduct. Peterson, 771 F.2d at 1254 (stating union is not liable for "good faith, non-discriminatory errors of judgment made in the processing of grievances"); Castelli, 752 F.2d at 1483 (union representative's tactical errors are not evidence of breach of duty of fair representation).

With regard to Luparello's argument that the Union breached its duty of fair representation by Hines' failing to discuss the existence of a Union hiring hall when he presented Luparello's grievance, Luparello has not shown by any competent evidence that such a hall existed. To the contrary, Hines, the Union's business agent, stated unequivocally that the Union had a referral system, not a hiring hall. Luparello's conclusory assertion lacks factual support. As such, it is not sufficient to defeat a motion for summary judgment. Cf. S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., 690 F.2d 1235, 1238 (9th Cir. 1982) (stating "party cannot manufacture a genuine issue of material fact merely by making assertions"); Angel v. Seattle-First Nat'l Bank, 653 F.2d 1293, 1299 (9th Cir. 1981) (holding "mere conclusory allegations unsupported by factual data" cannot defeat motion for summary judgment).

Finally, the record does not support Luparello's allegation that the union representative failed to indicate which agreement applied to Luparello. See Declaration of Michael J. Luparello in Opposition to Motion for Summary Judgment, Exh. 1 at 6 (transcript of hearing before Joint Western Area Committee) (statement by Union representative that grievance concerns article 63, section 2 of Western States Supplement).

CONCLUSION

We conclude that Luparello has failed to present a genuine issue of fact as to whether the Union breached its duty of fair representation. Therefore, Luparello may not pursue his section 301 claim against Emery, and summary judgment was properly granted.

AFFIRMED.