Evangelista v. Inlandboatmen's Union of Pacific

• Decision Date: 09 December 1985
• Docket Number: No. 84-2744,84-2744
• Citation: 777 F.2d 1390
• Parties: 121 L.R.R.M. (BNA) 2570, 104 Lab.Cas. P 11,819 Benita EVANGELISTA, Plaintiff-Appellant, v. INLANDBOATMEN'S UNION OF the PACIFIC; MTG Enterprise, Inc.; Douglas Crute; Paula Dougherty; Mario Garcia; and Does 1 through 10, inclusive, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1390

777 F.2d 1390

121 L.R.R.M. (BNA) 2570, 104 Lab.Cas. P 11,819

Benita EVANGELISTA, Plaintiff-Appellant, v. INLANDBOATMEN'S UNION OF the PACIFIC; MTG Enterprise, Inc. Douglas Crute; Paula Dougherty; Mario Garcia and Does 1 through 10, inclusive Defendants-Appellees.

No. 84-2744.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 7, 1985.

Decided Dec. 9, 1985.

Gilbert T. Graham, San Francisco, Cal., for plaintiff-appellant.

Richard S. Zuckerman, Leonard & Carder, San Francisco, Cal., for defendants-appellees.

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

Before GOODWIN, ALARCON, and POOLE, Circuit Judges.

ALARCON, Circuit Judge:

Benita Evangelista (hereinafter Evangelista) appeals from the district court's order granting summary judgment in favor of appellees Inlandboatmen's Union of the Pacific (hereinafter IBU), MTG Enterprises, Inc. (hereinafter MTG), IBU official Douglas Crute (hereinafter Crute), IBU member Paula Dougherty (hereinafter Dougherty), and MTG President Mario Garcia (hereinafter Garcia) (collectively referred to as appellees), on her complaint for wrongful discharge, breach of the duty of fair representation, intentional interference with economic advantage, and inducing breach of contract. Evangelista also appeals from the district court's denial of her cross-motion for partial summary judgment.

I PERTINENT FACTS

Evangelista was employed by Red and White Catering in July 1979 as a snack bar attendant and bartender on cruise vessels operated by the Red and White Fleet. As a bargaining unit employee, Evangelista was covered by the collective bargaining agreement negotiated by the IBU with Red and White Catering. In February 1983, MTG purchased Red and White Catering's business and assumed all of Red and White Catering's rights and duties under its collective bargaining agreement.

The collective bargaining agreement provides that as the exclusive bargaining representative for all covered employees, the IBU has full authority to settle disputes arising out of the interpretation or application of the agreement. The agreement creates a seniority system which affords protection against layoffs and priority in re-hiring to employees who have a long duration of employment with the employer relative to that of other employees. Section 9:04 of the agreement specifically provides that seniority is interrupted by discharge, resignation, or six consecutive months of unemployment except in cases of sickness or when a leave of absence has been granted. Section 11:00 of the agreement delineates the requirements for the granting of a leave of absence. The dispute in the instant case revolves primarily around an interpretation of the leave of absence provisions in section 11:00 and the effect of Evangelista's alleged failure to comply with those provisions on her seniority status.

On July 2, 1982, Evangelista left her job at Red and White Catering and went to Hawaii, her birthplace. With the assistance of John Goviea, the IBU representative in Hawaii, Evangelista secured temporary employment in late July with Dillingham Tug and Barge in Hawaii. Evangelista worked for Dillingham for approximately two weeks. Following her layoff from Dillingham, Evangelista applied for and obtained unemployment insurance benefits which she continued to receive through December 1982. Evangelista remained eligible for unemployment benefits by assuming an "on call" status with Dillingham and the IBU, and filled out unemployment insurance forms in which she represented that she was available for work and would accept employment if it was offered. During her stay in Hawaii, Evangelista corresponded with Dougherty, a fellow employee at Red and White Catering.

In December 1982, Evangelista returned to California. She resumed work with Red and White Catering on December 8, 1982, and continued as an employee of MTG after MTG purchased Red and White Catering in February 1983. No adjustment was made on Red and White's seniority list at the time.

In June 1983, several employees who had been wrongfully terminated by Red and White Catering during 1982 were reinstated pursuant to arbitration awards. Among them were Paula Dougherty and Renate Stevenson. When Evangelista learned that Dougherty and Stevenson intended to challenge her seniority and bid for her shift on the basis that she had lost her seniority when she went to Hawaii, she filed a formal grievance concerning her status on the seniority list. Evangelista's June 21, 1983 grievance stated that she should not lose her seniority because her leave of absence and temporary employment in Hawaii had been approved by IBU official Crute pursuant to the requirements specified in section 11:00 of the collective bargaining agreement. On June 22, 1983, she sent letters to IBU Chairman George Mihalopoulos and to Crute defending her seniority status.

The IBU took no formal action on Evangelista's grievance and letters because her complaint was not ripe: she had not lost her place on the seniority list and no employee had filed any formal grievance objecting to her seniority ranking. Evangelista did, however, meet with MTG president Garcia and speak with Crute by telephone regarding her grievance during this period.

On July 29, 1983, Renate Stevenson filed a formal grievance alleging that Evangelista Evangelista filed a second grievance on August 11, 1983 protesting the reduction of her seniority. Crute responded in a letter dated August 16, 1983, which explained the IBU's determination with respect to Evangelista's seniority.

had worked for another company while in Hawaii and should therefore have her seniority reduced. The grievance was supported by copies of letters written by Evangelista to Dougherty from Hawaii, which discussed Evangelista's work at Dillingham. Following an investigation of Stevenson's grievance, the IBU determined that it was meritorious and that Evangelista's earlier grievance was not. Crute personally notified Evangelista of the decision to lower her seniority status on August 1, 1983.

On August 12, 1983, Evangelista filed an unfair labor practice charge against the IBU with the National Labor Relations Board, alleging that the IBU had failed to represent her fairly by refusing to process her original grievance and by attempting to cause MTG to terminate her. On September 30, 1983, the Regional Director dismissed her charge.

Evangelista's seniority reduction caused her to drop from eighth to seventeenth position on the IBU's list. Since the reduction she has worked only sporadically with MTG, primarily on weekends, and has been unable to secure full-time employment since August 1983.

II PROCEDURAL POSTURE

Evangelista filed a complaint in Superior Court on September 29, 1983, alleging wrongful discharge, interference with economic advantage, and inducing breach of contract. Appellees removed the action to the district court on October 12, 1983 on the grounds that it was an artfully pled section 301 claim. Labor Management Relations (Taft-Hartley) Act Sec. 301, 29 U.S.C. Sec. 185 (1982). Evangelista filed an amended complaint following removal alleging breach of contract, wrongful discharge, intentional interference with economic advantage, inducing breach of contract, and breach of the union's duty of fair representation.

The district court granted appellees' motion for summary judgment on October 12, 1984, and denied Evangelista's cross-motion for partial summary judgment. The district court concluded that (1) the IBU had not breached its duty of fair representation; (2) because Evangelista did not establish a triable issue of fact with respect to her claim for breach of the duty of fair representation, her section 301 claim against MTG must also be dismissed; (3) IBU official Crute and IBU member Dougherty could not properly be sued in their individual capacities for breach of contract or for breach of the duty of fair representation; and (4) Evangelista's state law claims were preempted by federal labor law.

III STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo. Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 981 (9th Cir.1985). Summary judgment is appropriate if, viewing the evidence in the light most favorable to the opposing party, no genuine issue of material fact remains for trial and the substantive law was correctly applied. Fed.R.Civ.P. 56(c); Friends of Endangered Species, Inc., 760 F.2d at 981.

IV HYBRID SECTION 301/BREACH OF DUTY CLAIM

A. Breach of Duty of Fair Representation Claim

Evangelista contends that summary judgment was inappropriate because she has produced sufficient evidence to raise triable issues of material fact regarding the adequacy of her representation by the IBU. Evangelista argues that the IBU breached its duty of fair representation

through the following course of conduct: (1) failing to act on her first grievance for at least six weeks; (2) failing to obtain Evangelista's version of the facts surrounding her leave of absence prior to reducing her seniority; (3) failing to conduct an adequate investigation of the facts pertaining to her leave of absence; (4) failing to give Evangelista notice of her right to appeal the reduction of her seniority and of the meeting between MTG and IBU at which her grievance was discussed; and (5) allowing Crute to participate in the IBU's decision to reduce Evangelista's seniority when he had personally authorized her leave of absence and temporary employment in Hawaii.

1. Duty to Investigate

Evangelista's first three arguments may be characterized as an assertion that the IBU failed to conduct an adequate investigation of Evangelista's first grievance. A union's duty of fair representation includes the duty to perform some minimal investigation, the thoroughness of which varies with the circumstances of the particular case. Johnson v. United States Postal...