Brown v. Trans World Airlines, Inc., 81-6027-CV-SJ.

• Decision Date: 29 July 1983
• Docket Number: No. 81-6027-CV-SJ.,81-6027-CV-SJ.
• Citation: 569 F. Supp. 247
• Parties: Harold V. BROWN, Plaintiff, v. TRANS WORLD AIRLINES, INC., et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

569 F. Supp. 247

Harold V. BROWN, Plaintiff, v. TRANS WORLD AIRLINES, INC., et al., Defendants.

No. 81-6027-CV-SJ.

United States District Court, W.D. Missouri, St. Joseph Division.

May 4, 1983.

Supplemental Order July 29, 1983.

COPYRIGHT MATERIAL OMITTED

Alvin D. Shapiro, and William H. Norton, Norton, Pollard & Norton, Inc., Kansas City, Mo., for plaintiff.

Larry W. Joye, Karl F. Schmidt, Morris J. Nunn, Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, Mo., for Trans World Airlines, Inc.

Michael D. Gordon, Jolly, Moran, Walsh, Hager & Gordon, Kansas City, Mo., for defendant unions.

ORDER GRANTING PARTIAL SUMMARY JUDGMENT AND DIRECTING FURTHER BRIEFING

SACHS, District Judge.

Pending before the Court are defendants' motions for summary judgment. Plaintiff originally filed this action against his former employer, defendant Trans World Airlines (TWA). He later joined three additional defendants: (1) International Association of Machinists and Aerospace Workers, (2) District 142 of the Association, and (3) Local Lodge 1650 of the Association. (The latter three defendants will be referred to collectively as the "union.") Plaintiff was terminated on June 26, 1980, pursuant to Article 6(d)(10) of the collective bargaining agreement which provides that "an employee will lose his seniority status and his name will be removed from the seniority list(s) under the following conditions: ... He is absent three (3) consecutive workdays without notifying the Company, unless satisfactory reason is given." Plaintiff asserts a breach of the union's duty of fair representation, and a breach of the collective bargaining contract by the employer. Plaintiff also contends that the employer colluded with the union during the arbitration process.

Facts

The union grieved plaintiff's firing through steps two and three of that procedure and the company's decision was affirmed. The union then pursued the complaint through final arbitration, appealing the grievance hearing officer's decision to the System Board of Adjustment. (See 45 U.S.C. § 153). The Board upheld plaintiff's termination. The decision was written by arbitrator Sickles; the TWA representative concurred, and the union representative dissented. The Board found that TWA was "justified in concluding that Brown had violated the provisions of Article 6(d)(10) of the agreement between the parties." Board decision at 2.

The only issue at arbitration involved the credibility of plaintiff and two company supervisors. Plaintiff spoke by telephone to Mr. Schultz and Mr. Cummings, the supervisors, on June 16, 1980, although plaintiff did not realize that Mr. Cummings was listening to the conversation. The plaintiff testified at arbitration that he informed Mr. Schultz during that conversation that doctors had advised him that he would be absent from work for 2 to 3 weeks. Both Schultz and Cummings "categorically denied that Brown ever made such a statement." Id. at 4. The parties agree that plaintiff did not contact his employer again, and on June 26, 1980, TWA advised Brown that his services had been terminated effective that day, pursuant to Article 6(d)(10) of the contract.

The arbitrator found the testimony of Schultz and Cummings credible, and disagreed with the employee's version of the telephone call. "Not only did Cummings and Schultz deny that the Grievant asserted that he would be out for two or three weeks, but both insisted — and the Grievant conceded — that the Employee was advised to keep the Company advised of his condition." Id. at 7. The arbitrator found that "it is conclusively established that the Grievant was fully aware of the 3 day provision ...." The arbitrator further stated that the medical documentation presented by plaintiff in an effort to confirm his testimony did not "fully support the contentions of the Employee." Id. at 8.

Plaintiff asserts several bases for his unfair representation claim. He argues that the inexperienced union representative relied exclusively on plaintiff's deposition testimony, and failed to produce any additional evidence. Brown contends that the union should have conducted extensive discovery, interviewed Schultz and Cummings, reviewed documents to prepare cross-examination of Schultz and Cummings, made a transcript of the hearing, presented additional evidence of plaintiff's medical condition, and argued that plaintiff had a "satisfactory reason" for any failure to notify his employer.

Defendant Union's Motion

The union seeks summary judgment and contends that even accepting all of plaintiff's assertions as true, there is insufficient evidence of unfair representation. To establish a breach of the duty of fair representation, the plaintiff must demonstrate intentional bad faith, or arbitrary action on the union's part in representing him. Anderson v. United Transportation Union, 557 F.2d 165 (8th Cir.1977); Augspurger v. Brotherhood of Locomotive Engineers, 510 F.2d 853, 859 (8th Cir.1975). "So long as a union exercises its discretion in good faith and with honesty or purpose, a `wide range of reasonableness must be allowed.' ... Mere negligence, poor judgment or ineptitude are insufficient to establish a breach of the duty of fair representation." Curtis v. United Transportation Union, 700 F.2d 457, 458 (8th Cir.1983), quoting NLRB v. American Postal Workers Union, 618 F.2d 1249, 1255 (8th Cir.1980). "To support a claim that a union acted in a perfunctory manner, there must be evidence that the union acted without concern or solicitude, or gave a claim only cursory attention." Id. (citations omitted).

A claim for breach of the duty of fair representation may be disposed of by summary judgment motion, even where plaintiff's allegations are that the union acted in a perfunctory manner. See Barth v. Honeywell, Inc., 716 F.2d 907 (8th Cir. 1983). "The party opposing the motion for summary judgment may not rest on the allegations in his pleadings, but must resist the motion by setting forth specific facts that raise a genuine issue of fact for trial." Burst v. Adolph Coors Co., 650 F.2d 930, 932 (8th Cir.1981) (citations omitted). Plaintiff has alleged in general terms various defects in the union's representation of his claim. However, except for allegations of collusion, plaintiff has in no way suggested that the union's actions were arbitrary or in bad faith, nor has plaintiff presented any facts from which such an inference can be drawn. Even if plaintiff could prove all of his factual assertions at trial, he cannot prevail absent a showing of bad faith or arbitrary and capricious conduct by the union.

Several of plaintiff's contentions relate to matters that were simply not at issue in the termination hearings. Plaintiff's medical condition appears to be irrelevant, because the arbitration determination turned, not on whether his absence was legitimate, but on whether he had properly informed company officials about it. The union and employer do not contend that TWA was unaware of Brown's hospitalization, or that TWA did not realize the seriousness of plaintiff's medical condition. Defendant employer's statement of facts indicates that the company was well aware of plaintiff's hospitalization. See Suggestions in Support of Defendant TWA's Motion for Summary Judgment at 4-5. Rather, the issue throughout the termination proceedings was whether Brown had properly informed his employer on June 16, 1980, that he would be absent from work for the next two to three weeks. Plaintiff consistently maintained that he had informed his employer of his extended absence. For the union to contend in the alternative that plaintiff failed to notify his employer for a "satisfactory reason," would have been inconsistent with Brown's version of the telephone call, and could have further damaged plaintiff's credibility. Thus, plaintiff's allegation that the union failed to prove this crucial fact as a result of inadequate discovery is without merit.

While plaintiff charges the union with "intentional failure ... to present evidence and legal arguments they knew were material and which would have exonerated plaintiff of the charge," plaintiff fails to elaborate on this contention, or to suggest any possible support for such a finding. Plaintiff's core argument is that the union's representation of his claim was "inadequate." However, as the cases make clear, inadequate, incompetent or negligent representation, even if proved, is not sufficient for plaintiff to prevail. A union representative is not a lawyer, and is not held to the standard of a lawyer. Curtis, supra, 700 F.2d at 458. The union in this case took plaintiff's termination all the way through binding arbitration; the union carried plaintiff's claim to the final step, and did not abandon it earlier in the proceedings. Cf. Minnis v. UAW, 531 F.2d 850 (8th Cir. 1975).

Mistakes in the presentation of arguments do not constitute unfair representation, absent improper motivation on the union's part. See Ethier v. Postal Service, 590 F.2d 733 (8th Cir.1979); Curtis, supra. Other than the allegations of collusion, plaintiff has set forth no basis for a finding of bad faith, or perfunctory or arbitrary conduct on the union's part. In addition, were plaintiff to demonstrate such bad motive or indifference by the union, he suggests no detriment as a result. Plaintiff has failed to demonstrate the possibility that any of the union's actions affected the result of the arbitration hearing. See Findley v. Jones Motor Freight, 639 F.2d 953 (3d Cir.1981).

For example, plaintiff does not demonstrate in what respect the cross-examination could have been improved, or how the two witnesses could have been impeached in their testimony. Plaintiff also fails to suggest how discovery of certain "key documents" would have helped. Plaintiff made no showing that the arbitrator relied on such documents, nor does plaintiff indicate how the documents would have helped to prove his version...