Dutrisac v. Caterpillar Tractor Co.

• Decision Date: 19 July 1983
• Docket Number: No. 115,D,No. 81-4251,115,81-4251
• Citation: 749 F.2d 1270,113 LRRM 3532
• Parties: 113 L.R.R.M. (BNA) 3532, 98 Lab.Cas. P 10,318 Norman E. DUTRISAC, Plaintiff, and Bill Gamble, Plaintiff/Appellee, v. CATERPILLAR TRACTOR CO., Defendant, and International Association of Machinists, District Lodgeefendant/Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1270

749 F.2d 1270

113 L.R.R.M. (BNA) 3532, 98 Lab.Cas. P 10,318

Norman E. DUTRISAC, Plaintiff and Bill Gamble, Plaintiff/Appellee, v. CATERPILLAR TRACTOR CO., Defendant and International Association of Machinists, District Lodge No 115, Defendant/Appellant.

No. 81-4251.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 9, 1982.

Decided July 19, 1983.

Thomas Titmus, Dodge, Reyes, Brorby, Randall & Titmus, Walnut Creek, Cal., for plaintiff/appellee.

Steven L. Stemerman, Davis, Cowell & Bowe, San Francisco, Cal., for defendant/appellant.

Appeal from the United States District Court for the Northern District of California.

Before SCHROEDER, FLETCHER and NORRIS, Circuit Judges.

FLETCHER, Circuit Judge:

Bill Gamble was fired by Caterpillar Tractor Company, allegedly for excessive absenteeism. Gamble brought this action under section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185 (1976), charging that Caterpillar had fired him in violation of the collective bargaining agreement and that his union, the International Association of Machinists, District Lodge No. 115 (IAM), had breached its duty to represent him fairly in his attempt to gain reinstatement.

The district court granted summary judgment for Gamble on his fair representation claim against IAM. However, after a bench trial on the wrongful discharge claim, the court found that Caterpillar had fired Gamble for good cause and thus had not breached the collective bargaining agreement. Nevertheless, the court ordered IAM to pay the legal costs and attorney's fees of Gamble's section 301 action, as damages caused by IAM's breach of its duty of fair representation to Gamble. Dutrisac v. Caterpillar Tractor Co., 511 F.Supp. 719 (N.D.Cal.1981). IAM appeals.

The facts are undisputed. After Caterpillar fired him on February 10, 1978, Gamble filed a grievance alleging that the discharge was racially motivated. In accordance with the collective bargaining agreement, IAM began processing Gamble's grievance at the "third step" of the grievance procedure. Union business representative Andrew Barnes represented Gamble at the third-step hearing. A few days later, Caterpillar notified Barnes that it had rejected the grievance. IAM had thirty days from receipt of this notification to request arbitration of the grievance.

Following the third-step hearing, Barnes asked Gamble several times to supply him with certain information that would help him in representing Gamble. Gamble never provided the information. It was IAM's practice to discuss all pending grievances at weekly union meetings and decide which grievances to take to arbitration. IAM discussed Gamble's grievance at one of these meetings and decided to submit the grievance to arbitration.

Barnes filed the request for arbitration of Gamble's grievance. Although Barnes believed he was filing within the thirty-day time limit, he actually filed the request two weeks late. The arbitrator ruled that the grievance was untimely and therefore not arbitrable.

It is undisputed that Barnes had no ill will towards Gamble and that his failure to file the grievance on time was an inadvertent omission. The record does not show that Gamble's failure to provide the information requested by Barnes had any effect on the union's delay in filing. In his deposition, Barnes stated that his method of keeping track of filing deadlines was to review each grievance file at least once a week. He did not explain why he missed the deadline in Gamble's case.

On appeal, IAM argues that, at most, its failure to make a timely request for arbitration amounted to negligence, and that merely negligent conduct does not breach the duty of fair representation. IAM also contends that any breach of the duty of fair representation did not prejudice Gamble because the district court found Gamble's underlying claim against the employer to be nonmeritorious. Finally, IAM contends that an award of attorney's fees is not a proper remedy for breach of the duty of fair representation.

I The Standard of Care

To establish a breach of the union's duty of fair representation, an employee must show that the union's conduct towards him was "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 acts arbitrarily if it "ignore[s] a meritorious grievance or process[es] it in a perfunctory fashion." Id. at 191, 87 S.Ct. at 917. Although arbitrary conduct is not limited to acts intended to harm the employee, Robesky v. Qantas Empire Airways, Ltd., 573 F.2d 1082, 1089 (9th Cir.1978), the standards for determining when an unintentional mistake by a union official should be considered "arbitrary" are still evolving. See generally Morgan, Fair Is Foul, and Foul Is Fair --Ruzicka and the Duty of Fair Representation in the Circuit Courts, 11 U.Tol.L.Rev. 335 (1980); Note, IBEW v. Foust: A Hint of Negligence in the Duty of Fair Representation, 32 Hastings L.J. 1041 (1981).

In Robesky, we stated that an unintentional mistake is arbitrary if it reflects a "reckless disregard" for the rights of the individual employee, but not if it reflects only "simple negligence violating the tort standard of due care." 573 F.2d at 1089-90; accord, Tenorio v. NLRB, 680 F.2d 598, 601 (9th Cir.1982). "Reckless disregard" and "simple negligence," however, are merely labels. In deciding whether the facts of a particular case constitute a breach of the duty, it is more instructive to compare the types of unintentional errors in union grievance processing that usually are held to breach the duty of fair representation with those usually held not to breach the duty.

Most of the decisions finding "simple negligence" insufficient to establish a breach of the duty involve alleged errors in the union's evaluation of the merits of a grievance, see, e.g., Singer v. Flying Tiger Line, Inc., 652 F.2d 1349, 1355 (9th Cir.1981), in its interpretation of the collective bargaining agreement, see, e.g., Ethier v. United States Postal Service, 590 F.2d 733, 736 (8th Cir.), cert. denied, 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979), or in its decisions concerning presentation of the grievance at the arbitration hearing, see, e.g., Ness v. Safeway Stores, Inc., 598 F.2d 558, 560 (9th Cir.1979); Price v. Southern Pacific Transportation Co., 586 F.2d 750, 751, 754 (9th Cir.1978). When the challenged conduct is not an erroneous decision by the union but its failure to perform a ministerial act required to carry out the decision, courts have been more willing to impose liability for merely negligent conduct. See Morgan, supra, at 341-42; Note, supra, at 1055-69.

For example, in Robesky, the union failed to tell Robesky that it would not take her grievance to arbitration. Because this omission led Robesky to reject an offer of settlement that she would otherwise have accepted, we held that the union had breached its duty to her. 573 F.2d at 1091. Other courts have found a breach when the union decided to file a grievance but failed to file it in a timely fashion, or negligently allowed the filing deadline to pass without evaluating the merits of the grievance. See, e.g., Foust v. IBEW, 572 F.2d 710, 715 (10th Cir.1978), rev'd on other grounds, 442 U.S. 42, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979); Ruzicka v. General Motors Corp., 523 F.2d 306, 309-10 (6th Cir.1975) (Ruzicka I ); ¹ Ruggirello v. Ford Motor Co., 411 F.Supp. 758, 760-61 (E.D.Mich.1976). But see Hoffman v. Lonza, Inc., 658 F.2d 519, 522 (7th Cir.1981). As the district court in this case stated: "[a] reckless disregard for the rights of plaintiff [is] found, as in Robesky, because union officials had full knowledge of the situation that the notice to arbitrate had to be filed within 30 days, and had ample opportunity to timely file their notice, but failed to do so." 511 F.Supp. at 727 (citing Robesky, 573 F.2d at 1090, 1091). We conclude that the union should be responsible for a total failure to act that is unexplained and unexcused. See Ruzicka, 523 F.2d at 316 (6th Cir.1975) (McCree, J., concurring).

The collective bargaining system necessarily subordinates the interests of an individual employee to the collective interests of all employees in the bargaining unit. See Vaca, 386 U.S. at 182, 87 S.Ct. at 912. Because the union must balance many collective and individual interests when it decides whether and to what extent to pursue a particular grievance, courts should accord substantial deference to the union's decisions. See Rupe v. Spector Freight Systems, Inc., 679 F.2d 685, 691 (7th Cir.1982). To hold the union liable for mere errors of judgment in processing grievances would defeat the employees' collective interest in having a strong and effective union.

When the challenged conduct, however, is based not on any decision about how to handle the grievance, but on the failure to perform ministerial acts, judicial deference to the union serves no purpose. A requirement that the union timely pursue those grievances it has decided to pursue does not interfere with union decision making. IAM contends, however, that such a requirement will undermine the discretion of unions to evaluate the merits of grievances because it will force unions to shorten the time they spend investigating grievances before deciding whether to file them. No legitimate interest is served by ignoring the filing deadline merely because it does not happen to coincide with the completion of the union's investigation. If the collective bargaining agreement does not allow enough time for investigation, the union can negotiate to lengthen the contractual time for filing grievances or to provide for extensions of time in particular cases.

IAM also argues that imposing liability in this case has no deterrent value because a union is unable to foresee or prevent acts of negligence by its stewards and business agents. We are not persuaded that unions are...