Unpublished Disposition, 927 F.2d 610 (9th Cir. 1986)

MEMORANDUM^* 

Gene Slafer appeals the grant of summary judgment to defendants California Hyatt Corporation ("Hyatt")¹  and International Union of Operating Engineers AFL-CIO, Local 501 ("Union"),²  and the dismissal without prejudice of his pendent state law defamation claim against defendant John Davis. We affirm.

* We review de novo a grant of summary judgment. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986). The court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989).

To establish a breach of the duty of fair representation, an employee has the burden of demonstrating that the union's conduct towards him was "arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, 386 U.S. 171, 190 (1967). Slafer contends on appeal that the Union's investigation of his claim was so minimal as to constitute arbitrary conduct.

This Circuit has held that a Union behaves arbitrarily and in violation of its duty of fair representation when it fails to carry out a procedural or ministerial task without substantial or rational reasons. Banks v. Bethlehem Steel Corp., 870 F.2d 1438, 1442 (9th Cir. 1989). " [M]ere negligent conduct on the part of a union does not constitute a breach of the union's duty" nor may a union's conduct be deemed arbitrary "simply because of an error in evaluating the merits of a grievance." Peterson v. Kennedy, 771 F.2d 1244, 1253-54 (9th Cir. 1985). However, "a union must conduct some minimal investigation of grievances brought to its attention." Tenorio v. NLRB, 680 F.2d 598, 601 (9th Cir. 1982). The thoroughness of the investigation required varies in each case. "Although we afford unions a reasonable range of discretion in deciding how best to handle grievances, union conduct that shows an egregious disregard for the rights of union members constitutes a breach of the duty of fair representation." Id.; see also Banks, 870 F.2d at 1443 (a union behaves arbitrarily when it places itself "in a situation where it either could not or would not make an informed judgment regarding the merits of the individual claims").

In this case, the Union investigated Slafer's claim sufficiently to make an informed judgment. Union representative Mear met with Slafer initially to discuss his claims. Mear then arranged a meeting with Hyatt personnel which was attended by another union representative, McLaughlin. Mear was informed of Hyatt's investigation into the matter and shown the affidavit of engineer Kangvan stating Slafer encouraged him to falsify SCORE sheets, along with copies of the allegedly falsified SCORE sheets. McLaughlin had further conversations with Hyatt's chief engineer Paul Crouch, who conducted the investigation of Slafer regarding the SCORE sheets and the poor condition of the equipment under Slafer's responsibility. Mear and McLaughlin met with Slafer a second time to give him an opportunity to rebut Hyatt's allegations. These efforts by the Union were sufficient to satisfy its duty to investigate. See Evangelista v. Inlandboatmen's Union of the Pacific, 777 F.2d 1390 (9th Cir. 1985) (reading the grievance, reviewing internal records, and reviewing collective bargaining agreement sufficient); Eichelberger v. NLRB, 765 F.2d 851, 857 n. 10 (9th Cir. 1985) (reading of grievant's letter by two union representatives sufficient investigation).

Slafer argues that McLaughlin's failure to interview Jim White, John Davis, and engineer Kangvan reflects inadequate investigation. These omissions do not rise to the level of egregious disregard of a union member's rights; at most they constitute negligent conduct by the Union, which is insufficient to support a claim of breach of the duty of fair representation.

In addition to arguing it did not behave arbitrarily, the Union points out that "unions are not liable for good faith, nondiscriminatory errors of judgment made in the processing of grievances," Peterson, 771 F.2d at 1254, and Slafer failed to demonstrate the Union's decision not to pursue his claim was discriminatory or taken in bad faith. We agree Slafer offered no evidence to support his allegations that the Union generally disfavored chief engineers, or that the Union was hostile towards him because he filed an internal Union charge against Davis, another union member. Slafer argues that Peterson was wrongly decided and should be abandoned. This panel is bound by the decisions of earlier panels of the court.

Summary judgment in favor of Hyatt as well as the Union is warranted since "an employee must first establish that his union breached its duty of fair representation before a claim against the employer is cognizable in court." Peters v. Burlington Northern R.R. Co., 914 F.2d 1294, 1302 (9th Cir. 1990).

II

We review for abuse of discretion the district court's dismissal without prejudice, rather than remand, of Slafer's pendent state claim against John Davis. Bale v. General Tel. Co. of California, 795 F.2d 775, 778 (9th Cir. 1986). Slafer argues dismissal without prejudice was an abuse of discretion because the statute of limitations had run on the state action, and dismissal therefore effectively denied him access to state court. In Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351-52 (1988), the Supreme Court stated that "a remand generally will be preferable to a dismissal when the statute of limitations on the plaintiff's state-law claims has expired before the federal court has determined that it should relinquish jurisdiction over the case."

Davis wrote the letter on which Slafer's defamation claim is based on or before November 12, 1985. Slafer filed his complaint on November 14, 1986. The statute of limitations for a libel or slander claim under California law is one year, Cal.Code.Civ.Proc. Sec. 340 (1990), and the claim accrues on the date of publication. Manguso v. Oceanside Unified School Dist., 88 Cal. App. 3d 725, 727 (1979). Since the statute of limitations had already run on Slafer's claim, dismissal was not prejudicial. See Carnegie-Mellon, 484 U.S. at 352.

Finally, we deny the Union's request for attorneys' fees under Fed.R.App.Proc. 38. Slafer's appeal is not so frivolous as to warrant sanctions. See Taylor v. Sentry Life Ins. Co., 729 F.2d 652, 656 (9th Cir. 1984).

The district court's judgment is AFFIRMED.