Ash v. United Parcel Service, Inc.

Decision Date11 September 1986
Docket NumberNo. 175,Nos. 85-2024,175,s. 85-2024
Citation800 F.2d 409
Parties123 L.R.R.M. (BNA) 2541, 105 Lab.Cas. P 12,052 Ernest R. ASH, Appellant, v. UNITED PARCEL SERVICE, INC., a New York Corp., International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, a labor organization, & Chauffeurs, Teamsters & Helpers Local Union, a labor organization, Appellees. Ernest R. ASH, Appellee, v. UNITED PARCEL SERVICE, INC., a New York Corp., Appellant, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, a labor organization, & Chauffeurs, Teamsters & Helpers Local Union, a labor organization, Defendants. Ernest R. ASH, Appellee, v. UNITED PARCEL SERVICE, INC., a New York Corp., Defendant, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, a labor organization, & Chauffeurs, Teamsters & Helpers Local Union, a labor organization, Appellant. (L), 85-2173 and 85-2175.
CourtU.S. Court of Appeals — Fourth Circuit

John Taylor, for appellant.

James F. Wallington (Stanley M. Hostler, Hostler & Segal, Charleston, W.Va., for appellee Chauffeurs, Teamsters and Helpers, Local Union No. 175.

David D. Johnson (Charles Q. Gage, Cheryl Harris Wolfe, Jackson, Kelly, Holt & O'Farrell, Charleston, W.Va., on brief), for appellee United Parcel Service, Inc.

Before WINTER, Chief Judge, ERVIN, Circuit Judge, and HAYNSWORTH, Senior Circuit Judge.

PER CURIAM:

This appeal arises out of Ernest Ash's attempt to regain employment at United Parcel Service, Inc. (UPS) after he was discharged for dishonesty. 1 Ash's discharge was upheld through the third step of the grievance procedures defined by the relevant collective bargaining agreement. Ash now seeks judicial relief, claiming that his union, the International Brotherhood of Teamsters (Teamsters), breached its duty of fair representation.

Finding as a matter of law that Ash could not establish the type of grossly deficient conduct required for a breach of the duty of fair representation, the district court granted summary judgment for UPS and the Teamsters. We affirm. 2

I.

UPS discharged Ash after he took excessive unreported breaks and claimed overtime pay for the time required to complete his package deliveries. Ash admitted that he engaged in this conduct. Nevertheless, he filed a grievance because other employees had been suspended, not discharged, for similar behavior. Prior to this episode, Ash had worked for UPS for thirteen years without incident.

The Teamsters pursued Ash's grievance through the third step, a grievance committee hearing. Under the collective bargaining agreement, the committee should have been composed of three union participants, three management participants, and one independent arbitrator. The committee which heard Ash's case was composed of only two union and two management participants. Ash's Teamster representative, Franklin Baxter, did not protest the committee's composition.

At the hearing, Baxter highlighted Ash's good work record, reminded the committee that similar offenders had not been discharged, and argued that the discharge was procedurally defective. He did not assert Ash's innocence. Ash addressed the committee personally and attempted to justify his actions. He now claims that his statement was cut short by a pre-arranged signal from Baxter. At the close of the hearing, however, Ash indicated that he had nothing to add and that he believed that Baxter had properly represented him.

The grievance committee upheld the termination. Ash then filed this lawsuit, claiming that Baxter's representation was perfunctory and in bad faith. Ash claims that the union actually was pleased with his discharge because it ended his activity as a dissident Teamster. Ash's dissident activities included voting against the slate of union officers selected by the existing power structure and criticizing the most recent UPS-Teamster contract. Ash also maintains that non-dissidents were represented more effectively by the union. Finally, Ash claims that a UPS official told him that he would not have been discharged "if it wasn't for something you said or done" during contract negotiations.

II.

The resolution of a grievance under a contractually established scheme is ordinarily final and binding on the parties. See Hardee v. N. C. Allstate Services, Inc., 537 F.2d 1255, 1258 (4th Cir.1976). In order to overturn the committee's decision, Ash must establish that the union handled his grievance perfunctorily or in bad faith and that "there is substantial reason to believe that a union breach of duty contributed to an erroneous outcome in the contractual proceedings." Id. Simple negligence, ineffectiveness, or poor judgment is insufficient to establish a breach of the union's duty. See Harris v. Schwerman Trucking Co., 668 F.2d 1204, 1206-07 (11th Cir.1982). Rather, the union's conduct must be "grossly deficient" or in reckless disregard of the member's rights. Wyatt v. Interstate & Ocean Transport Co., 623 F.2d 888, 891 (4th Cir.1980).

Even in the light most favorable to Ash, the facts and inferences do not create a triable claim of grossly deficient representation. Baxter prepared Ash's case and presented a coherent argument against discharge. Given Ash's admission of culpability, Baxter's presentation cannot be construed as unreasonable. Furthermore, Ash's participation in the hearing and his expression of satisfaction with Baxter's representation substantially undercut his current allegations. See Hardee, 537 F.2d at 1259.

Although there is reason to suspect some union hostility toward Ash, there is no evidence that Baxter shared this alleged ill-will. Even if Baxter did feel hostility toward Ash, there is no evidence that animosity affected his representation of Ash. See Early v. Eastern Transfer, 699 F.2d 552, 556 (1st Cir.), cert. denied, 464 U.S. 824, 104 S.Ct. 93, 78 L.Ed.2d...

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