Early v. Eastern Transfer

• Decision Date: 01 February 1983
• Docket Number: No. 82-1217,82-1217
• Parties: 112 L.R.R.M. (BNA) 3381, 96 Lab.Cas. P 14,005 John EARLY, et al., Plaintiffs, Appellants, v. EASTERN TRANSFER, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 552

699 F.2d 552

112 L.R.R.M. (BNA) 3381, 96 Lab.Cas. P 14,005

John EARLY, et al., Plaintiffs, Appellants, v. EASTERN TRANSFER, et al., Defendants, Appellees.

No. 82-1217.

United States Court of Appeals First Circuit.

Argued Sept. 14, 1982.

Decided Feb. 1, 1983.

Mark D. Stern, Cambridge, Mass., with whom Goldstein, Pressman, Stern & Hiller, Cambridge, Mass., was on brief, for appellants.

Alan Kaplan, Boston, Mass., with whom Nathan L. Kaitz and Morgan, Brown, Kearns & Joy, Boston, Mass., were on brief, for appellee Eastern Transfer.

Kathryn M. Noonan, Boston, Mass., with whom McDonald & Noonan, Boston, Mass., was on brief, for appellees Local No. 82, Bart Griffiths and George Harris.

Arthur L. Fox, II, and Alan B. Morrison, Washington, D.C., on brief for Teamsters for a Democratic Union, amicus curiae, urging reversal.

Before DAVIS, ^* CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

John and Stephen Early, father and son, brought this suit in the district court under section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185, against their former employer, their union, and two of the union's officers. Asserting breaches of the duty of fair representation by the union and of the collective bargaining agreement by the employer, they challenged a joint committee decision upholding their discharges, and demanded damages, reinstatement, back pay, and attorneys' fees. On cross-motions for summary judgment, the district court found there had been no breach of the duty of fair representation and accordingly entered judgment for all defendants.

The two Earlys, as employees of Eastern Transfer, were working at the Hynes Auditorium in Boston on Saturday, June 6, 1981, setting up a trade show. They left their job in the early evening without express permission of their employer and without completing their assignments. When they reported for work the next morning at 6:00 a.m., they and three other employees who had left with them were discharged. On the day of the discharge, union and company officials met informally, apparently pursuant to steps one and two of the grievance procedure set out in the collective bargaining agreement. The company reduced one employee's penalty to a one-week suspension, but let the discharges of the other four stand. The discharged employees, including the two Earlys, thereupon filed formal grievances.

On July 23, 1981, the grievances were heard by a four-member joint committee. ¹ Defendant George Harris, the president of the union local, sat on the committee, and defendant Bart Griffiths represented the grievants. Griffiths made various arguments on their behalf, but did not present that considered by the appellants to be the most compelling, viz. that under the collective bargaining agreement employees could leave unfinished work without permission on weekends. John Early made this argument, among others, when reading from a prepared statement; Stephen Early also made a statement on his own behalf. At the close of the hearing, the grievants were asked whether they felt they had been properly represented. All responded affirmatively. The committee upheld the discharges. It did not give any reasons for doing so.

Before the district court, the Earlys contended that Griffiths investigated and argued their grievances perfunctorily, and that the joint committee's decision was tainted by Harris's bias. ² The district court ruled that plaintiffs in their affidavits and other supporting materials had failed to raise genuine issues of material fact with respect to the union's fair handling of their grievances. While conceding that plaintiffs may have suggested a motive for their union's acting arbitrarily or using less than its best efforts on their behalf, the court concluded that they "offered insufficient evidence of conduct or omissions to support an inference of the union's breach of its statutory duty." The court also rejected any theory that union members on the joint committee owed a duty to deadlock the committee and thereby trigger the next contractual step of arbitration.

In reviewing the district court's grant of summary judgment, we look at the record in the light most favorable to the opposing party and indulge all inferences favorable to that party. Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed. 754 (1976). We will uphold the district court if there exists no genuine issue of material fact and the appellees are entitled to judgment as a matter of law. Condon v. Local 2944, United Steelworkers of America, 683 F.2d 590, 594 (1st Cir.1982). We conclude that the lower court did not err.

To have a right to contest the merits of their discharge in court, the Earlys must first show that the union violated its duty of fair representation; otherwise the decision of the joint committee is "final and binding." Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). ³ This exception to the finality rule is narrow. Sear v. Cadillac Automobile Co. of Boston, 654 F.2d 4, 7 (1st Cir.1981). "A breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). "A union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion." Id. at 191, 87 S.Ct. at 917. However, the fact that the grievance was meritorious does not establish a breach of the duty of fair representation or entitle the grievant to escape the bar of finality imposed by the collective bargaining agreement, for "[t]he grievance process cannot be expected to be error-free." Hines v. Anchor Motor Freight, Inc., 424 U.S. at 571, 96 S.Ct. at 1059. There must be a separate showing of a union breach that "seriously undermined the integrity of the arbitral process." Id. at 567, 96 S.Ct. at 1058. Mere negligence of the union does not amount to such a breach. Condon v. Local 2944, 683 F.2d at 594-95. Looking at the materials submitted by the parties in the light most favorable to appellants, we believe that appellants did not make a sufficient showing that the union's treatment of these grievances lay outside "the range of acceptable performance by a collective bargaining agent." Hines, 424 U.S. at 568, 96 S.Ct. at 1058.

I. Adequacy of Representation

The Earlys contend that Griffiths was hostile to them and failed to investigate and present their case adequately. We consider in turn each of these charges.

A. Hostility

The Earlys' affidavits indicate that they were actively associated with the dissident Teamsters for a Democratic Union, had openly distributed TDU literature, had spoken out at union meetings against policies and practices espoused by Harris and Griffiths, and had declined to testify for the two in separate litigation brought by members of the local against its officers. While Griffiths denied any hostility, pointing out that the union had supported the appellants in several prior grievances, the Earlys' submissions, viewed most favorably, created an issue of fact at least as to whether Griffiths had reason to be hostile to them. That they also created a triable issue of actual hostility is less clear. Griffiths was not alleged ever to have expressed hostility towards the Earlys. ⁴ See Melendy v. United States Postal Service, 589 F.2d 256, 259 & n. 3 (7th Cir.) (upholding grant of summary judgment for defendants), cert. denied, 436 U.S. 927, 98 S.Ct. 2821, 56 L.Ed.2d 770 (1978). But even assuming, without deciding, that animosity on Griffiths's part could be inferred from the Earlys' provocations, this would not, standing alone, establish a breach of the duty of fair representation. E.g., Freeman v. O'Neal Steel, Inc., 609 F.2d 1123, 1127 (5th Cir.), cert. denied, 449 U.S. 833, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980); Hardee v. North Carolina Allstate Services, Inc., 537 F.2d 1255, 1258 (4th Cir.1976). To establish such a breach it must be shown that his handling of the grievances was itself materially deficient. We now turn to that issue.

B. Investigation of the Grievances

The Earlys assert that the materials they submitted demonstrate that Griffiths's investigation was perfunctory and undertaken in bad faith. They say that in conversations with them he voiced disbelief in the merits of their claim and suggested they lie rather than assert allegedly sound defenses, and that he did nothing to prepare their case. The undisputed facts establish, however, that Griffiths spoke with the grievants and company officials on the day of discharge (he was at Eastern Transfer at 6:00 a.m. to do so) and discussed the case with John Early on at least two occasions thereafter. The case was not factually complex: the Earlys did not specify in their affidavits any positive facts of significance which a more thorough investigation would have brought to light. Griffiths arranged that the time cards, which Early had unsuccessfully sought himself, be brought to the hearing, where he and Early examined them and introduced them into evidence. ⁵ John Early asserted that he had had trouble reaching Griffiths, who had not returned his phone calls. But in the absence of some specific indication of why further consultations were needed or how they could have helped, we can find no genuine issue concerning unfair representation due to inadequate investigation. See Findley v. Jones Motor Freight, Inc., 639 F.2d 953, 959 (3d Cir.1981) (reversing jury's finding that union breached its duty).

C. Presentation to the Committee

According to appellants, at the hearing Griffiths presented only four out of their eleven arguments, and even these were presented halfheartedly. Nonetheless, it is undisputed that Griffiths argued that other employees had walked off the job the same day without permission...