Unpublished Disposition, 935 F.2d 275 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 275 (9th Cir. 1988) Charles L. SHUSTER, Plaintiff-Appellant,v.LOCKHEED AERONAUTICAL SYSTEMS, COMPANY, InternationalAssociation Machinist & Aerospace Workers & PlantProtection # 1638, AeronauticalIndustrial District Lodge 727,Defendants-Appellees

No. 90-56218.

United States Court of Appeals, Ninth Circuit.

Argued and submitted June 4, 1991.Decided June 17, 1991.

Before FLETCHER, CANBY and BOOCHEVER, Circuit Judges.


MEMORANDUM* 

Charles Shuster appeals the district court's order granting the defendants' motion for summary judgment. The district court found that Shuster had failed to raise genuine issues of material fact adequate to support either his claim that defendant Lockheed terminated his employment without just cause or his claim that defendants International Association of Machinists and Aerospace Workers and Plant Protection No. 1638, and Aeronautical Industrial District Lodge 727 (collectively "the union") breached the duty of fair representation in settling his grievance arising from his termination. We AFFIRM the district court's judgment in favor of the defendants because even assuming all disputed facts in Shuster's favor, he has failed to establish that the union breached its duty of fair representation. Because Shuster must establish both that his termination was wrongful and that the union breached its duty of fair representation in order to prevail on his claim against any of the defendants, DelCostello v. Teamsters, 462 U.S. 151, 164 (1983), we need not reach the question of whether his termination was without just cause.

BACKGROUND

Shuster was employed as a plant protection officer (i.e., a security guard) for Lockheed from 1963 until he was terminated for misuse of company time, possession of unauthorized company equipment, and irregularities in his duty performance on March 20, 1986. Lockheed's asserted basis for the termination is that Shuster was observed outside a building gathering and crushing aluminum cans and inserting objects into his "detex clock" during a period for which his detex clock showed him to have been making his detex rounds inside the building.1  A subsequent consensual search of Shuster's car revealed him to be in possession of company paper towels and plastic bags and a full set of detex keys, the latter of which Lockheed inferred Shuster used to create a false record of having made detex rounds while he remained outside collecting cans.

The collective bargaining agreement containing the terms of Shuster's employment permits Lockheed to discharge employees for "just cause." Shuster conceded in his declaration filed in opposition to the summary judgment motion that performance of detex rounds is a very important duty and that falsification of detex records and failure to make rounds would constitute just cause for termination. Shuster also admitted collecting cans during his shift. There was some dispute in the record as to whether Shuster had been warned by Lockheed previously not to collect cans while on duty. There was likewise some dispute as to what Lockheed's investigator could have observed regarding the detex clock given the distance and the dark conditions. Finally, although Shuster had repeatedly told union representatives and testified in deposition that he had no memory of the events on the night in question, he filed a declaration in opposition to the defendants' motion for summary judgment which offered an alternative, conflicting explanation of his conduct on the night prior to his termination.

Since we do not reach the question of whether Shuster's termination was proper, we need not resolve whether this declaration was entitled to any weight, see Foster v. Arcata Associates, Inc., 772 F.2d 1453, 1462 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986) (plaintiff's declaration in opposition to motion for summary judgment properly disregarded where it contradicted her previous deposition testimony), or whether the disputes related to Shuster's termination are genuine or material. Rather, our focus is on the union's actions related to Shuster's termination and on Shuster's complaints regarding those actions.

Shuster filed a grievance with the union on March 26, 1986, approximately a week after he was terminated. It is undisputed that Shuster had a number of conversations with Edward Sandoval, the union business representative, about his grievance; that Sandoval testified on Shuster's behalf at his unemployment hearing; that Sandoval asked Shuster on several occasions for a detailed chronology of events on the night in question; that Sandoval never received such a chronology from Shuster; that Sandoval reviewed portions of Shuster's personnel file and spoke with other plant protection officers in investigating Shuster's termination; that Sandoval obtained a number of extensions in processing Shuster's grievance, allegedly to enable him to obtain the necessary information from Shuster; and that Shuster made a number of telephone calls to Sandoval, not all of which were returned. The union agreed on December 19, 1987 to settle Shuster's grievance in exchange for Lockheed changing the reason for termination to "voluntary quit"; the entry of that settlement was delayed, however, at Sandoval's request, in order to allow Sandoval to obtain further information from Shuster which might support taking the case to arbitration. When such information was not forthcoming, Shuster's grievance was terminated on March 28, 1988. Shuster did not receive notice of the settlement, however, until at least April 21, 1988.2  He subsequently complained to Bryan Carver regarding the handling of his grievance and requested a further investigation and reopening of his case. Carver ultimately informed Shuster on December 13, 1988, that he had made further inquiry and that Shuster's case would not be reopened.

Shuster asserts that the union breached its duty of fair representation by 1) settling his grievance for a "voluntary quit" when Sandoval had promised him that he would not settle on that basis; 2) failing to make an adequate investigation; 3) failing to keep him informed of all material events, including the settlement; 4) acting with bad faith and dishonesty during and after the processing of the grievance; 5) exhibiting "covert hostility and animosity" by failing to return his phone calls and letters; 6) requiring a detailed written statement from him as a condition of going forward with arbitration; and 7) making only perfunctory efforts to reopen his case. A number of the factual allegations, e.g. whether Sandoval sent Shuster copies of all relevant correspondance, are disputed by the parties. The district court held that Shuster failed to come forward with sufficient facts supporting his claims that the union acted arbitrarily or in bad faith. It specifically found that the evidence presented on summary judgment demonstrated that the union conducted a reasonable investigation, that Shuster had admitted he had no reason to believe union representatives were motivated by animosity or hostility, and that Sandoval had attempted repeatedly to obtain Shuster's cooperation in pursuing the grievance.

DISCUSSION

We review de novo the district court's grant of summary judgment, examining the evidence in the light most favorable to the nonmoving party. Moore v. Bechtel Power Corp., 840 F.2d 634, 636 (9th Cir. 1988). We must determine whether the district court correctly applied the relevant substantive law and whether there are any genuine issues of material fact. Id. "Specifically, whether a union's conduct amounted to a breach of the union's duty of fair representation presents a mixed question of law and fact that we review de novo." Burkevich v. Air Line Pilots Ass'n, Int'l, 894 F.2d 346, 349 (9th Cir. 1990).

"To establish a breach of the 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)). This court engages in a two-step analysis to determine whether a union has breached the duty of fair representation. First, we must decide whether the alleged union misconduct "involved the union's judgment, or whether it was 'procedural or ministerial.' " Moore, 840 F.2d at 636 (quoting Peterson v. Kennedy, 771 F.2d 1244, 1254 (9th Cir. 1985), cert. denied, 475 U.S. 1122 (1986).3  If the conduct involved the union's judgment, as did most of the alleged conduct here, then "the plaintiff may prevail only if the union's conduct was discriminatory or in bad faith." Id. That is, where the union's judgment is involved, even a showing of arbitrariness will not suffice to demonstrate a breach of the duty of fair representation.

Although Shuster alleges that the union representatives acted with "animosity," "hostility," "bad faith," "dishonesty," and "arbitrariness," he failed to offer any facts in support of those allegations in the trial court below. Nor do his briefs on appeal suggest any facts demonstrating bad faith or discrimination. In fact, Shuster readily acknowledged in his deposition that he had no reason to believe that Sandoval, Brenner or Carver harbored any animosity or bias against him, that he considered Sandoval his friend, and that he had "campaigned" for both Sandoval and Carver when they ran for their union positions. Shuster asserts that Sandoval acted with bad faith and dishonesty because he perjured himself in his deposition by denying that he had ever assisted Shuster in collecting and crushing aluminum cans. Shuster fails, however, to offer any evidence that Sandoval did "perjure" himself, or to explain how such "perjury" would demonstrate bad faith on the part of Sandoval in his approach to Shuster's grievance.

Shuster's assertions that Sandoval unduly delayed his arbitration, settled his grievance in breach of his promise not to settle for a voluntary quit, failed to keep him informed of all material events regarding the grievance, failed to conduct a full investigation, and did not return all of his phone calls, even if accepted as true, do not amount to bad faith, discrimination, or even arbitrariness, so as to constitute a breach of the duty of fair representation. Decisions to settle grievances and decisions as to the scope of an investigation are clearly matters involving a union's judgment and thus may constitute breaches of the duty of fair representation only if taken discriminatorily or in bad faith. Burkevich, 894 F.2d at 349-50, 352 (settling individual pilots' claims without their express authorization and deciding to support company's reorganization plan "without adequate investigation" were matters involving the exercise of union judgment and would be upheld absent a showing of discrimination or bad faith). Likewise, the union's conclusions that it required an explanatory statement from Shuster in order to take the grievance to arbitration, and that Shuster had failed to provide adequate information, constitute judgments which Shuster has not demonstrated were made in bad faith or with discriminatory intent.

To the extent that Sandoval failed to return Shuster's telephone calls or to send copies of relevant correspondance related to the grievance (the latter of which is disputed), such conduct amounted to no more than negligence on the part of the union. " [M]ere negligence is not arbitrariness. The union must have acted in 'reckless disregard' of the employee's rights." Moore, 840 F.2d at 636 (citations omitted). Moreover, "the union only breaches its duty of fair representation when its conduct prejudices the strong interest of the employee." Id. There is no evidence that negligence in maintaining communication, if it existed, prejudiced Shuster in any way. No deadlines were missed; no settlement offers foregone. Shuster has likewise failed to demonstrate either in the district court below or on appeal what information the union could have discovered in support of his grievance had it acted more diligently.

Ultimately, the only union conduct which "prejudiced" Shuster's interests was its apparent conclusion that Shuster did not have a strong case and its decision to settle the grievance in exchange for Lockheed changing its records to reflect a voluntary termination. It is well-settled that unions do not have an absolute duty to take every grievance to arbitration. Vaca v. Sipes, 386 U.S. 171, 191 (1967). "Nor does a disagreement between a union and an employee over a grievance, standing alone, constitute evidence of bad faith, even when the employee's grievance is meritorious." Moore, 840 F.2d at 637 (citing Vaca v. Sipes, 386 U.S. at 194-95). Shuster has simply failed to present any evidence of the union's bad faith beyond his dissatisfaction with the manner in which the union handled his grievance. In Moore, we found that similar and arguably more serious lapses by the union (employees alleged, inter alia, that union interpreted agreement provisions in favor of the company, did not want to pursue employees' grievances, missed several time limits, had "camaraderie" with company representatives, and failed to notify employees of material decisions) did not amount to arbitrary or bad faith conduct. Likewise in this case, we find that there exists no genuine issue of material fact with respect to whether the union breached its duty of fair representation. The district court's summary judgment order is therefore AFFIRMED.

Lockheed requests attorneys' fees and double court costs pursuant to Fed. R. App. P. 38 both because Shuster's arguments of error were without merit and because, Lockheed contends, Shuster's brief contained inaccurate citations and citations to inapposite authority. Under Rule 38, we have authority to assess double costs and/or attorneys' fees as sanctions for filing frivolous appeals. Although several of Shuster's legal arguments fell considerably wide of the mark, we cannot say that the appeal was wholly without merit. We therefore decline to impose sanctions under Rule 38.

 *

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

 1

An officer on a detex round is required to stop at specified checkpoints to indicate the time that the round was completed by inserting detex keys, which are permanently affixed to the building at designated checkpoints, into detex clocks such that an imprint is made of a completed inspection

 2

In February, 1988, Sandoval was laid off as a union business representative and returned to work at Lockheed. Shuster's grievance was then handled by Robert Brenner, who explained in deposition that the delay in notifying Shuster of the settlement was due in part to the changeover in union personnel

 3

This court's recent decision in Peters v. Burlington Northern Railroad, 914 F.2d 1294, 1300 (9th Cir. 1990), suggests that the dichotomy between discretionary judgments and procedural or ministerial acts is not absolute and is "merely a convenient shortcut for segregating acts of judgment from acts of nonjudgment." In this case, the union's critical decision to settle Shuster's grievance falls squarely within the realm of discretionary decisionmaking which implicates the union's "judgment."