Gallegos v. U.S. Postal Service
| Decision Date | 29 November 1993 |
| Citation | 947 F.2d 953 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before McKAY, Chief Judge, EBEL, Circuit Judge, and SAFFELS, * District Judge.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
After seven years' employment, Plaintiff was discharged from the United States Postal Service (USPS) in New Mexico for insubordination to his supervisor and taking unauthorized leave. Plaintiff requested his union, the National Association of Letter Carriers (Union), to process a grievance against the USPS. The grievance proceeded to arbitration. After a hearing, the arbitrator determined that the USPS had just cause to terminate Plaintiff's employment. Plaintiff then sued his union and his former employer under 39 U.S.C. § 1208(b) alleging breach of duty of fair representation and wrongful discharge.
Plaintiff alleged that the Union breached its duty of fair representation because (1) his representative at the arbitration was not thoroughly familiar with his case; (2) his representative did not insist that the arbitrator hear three witnesses in person instead of by affidavit; (3) Plaintiff's medical documentation was not presented to the arbitrator; and (4) the Union failed to communicate offers of settlement. Plaintiff further alleged that the Union and the USPS conspired to deprive him of his employment.
In support of their motions for summary judgment, Defendants submitted Plaintiff's deposition in which he stated that the Union representative's arbitration brief contained all of the available arguments in his favor. Defendants also filed an affidavit from the Union representative stating that the medical evidence did not address the allegations of insubordination and unauthorized leave. In addition, there were affidavits stating that no settlement offers had been made by the USPS. 1
The district court granted summary judgment in favor of the USPS and the Union, holding that Plaintiff had failed to demonstrate the existence of a genuine issue of fact on the Union's breach of duty. 2 The district court found that the first three allegations were tactical decisions which did not establish that the Union breached its duty of fair representation. On the remaining allegation of the failure to communicate settlement offers, the district court found that Plaintiff also had failed to raise a genuine issue of fact. On appeal, Plaintiff asserts that the district court erred in entering summary judgment because the affidavits submitted to the district court establish genuine issues of fact regarding whether the Union breached its duty of fair representation.
We apply the same standard of review employed by the district court under Fed.R.Civ.P. 56(c). Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). The record must be viewed in the light most favorable to the party opposing the summary judgment. Ewing v. Amoco Oil Co., 823 F.2d 1432, 1437 (10th Cir.1987). The moving party carries the burden of showing beyond a reasonable doubt that it is entitled to summary judgment. Id. The nonmoving party must, however, designate specific facts demonstrating the existence of a genuine issue for trial as to the dispositive issues on which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Case law developed under the Labor Management Relations Act, 29 U.S.C. § 185(a), is relevant to this postal employee case. See United States Postal Serv. v. American Postal Workers Union, AFL-CIO, 893 F.2d 1117, 1120 (9th Cir.), cert. denied, 111 S.Ct. 67 (1990) (); see also Bowen v. United States Postal Serv., 459 U.S. 212 (1983) (); Young v. United States Postal Serv., 907 F.2d 305, 307 (2d Cir.1990) (); United States Postal Serv. v. American Postal Workers Union, AFL-CIO, 893 F.2d 1117, 1120 (9th Cir.) (cases 29 U.S.C. § 185(a) have been applied to determine the court's authority pursuant to 39 U.S.C. § 1208(b)), cert. denied, 111 S.Ct. 67 (1990); Bacashihua v. United States Postal Serv., 859 F.2d 402, 405 (6th Cir.1988) (); Roman v. United States Postal Serv., 821 F.2d 382, 386 (7th Cir.1987) ().
To prevail against either the employer or the Union, a discharged employee must not only show that his discharge was contrary to the contract, but must also carry the burden of demonstrating breach of duty of fair representation by the Union. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71 (1976). 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." United Steelworkers of Am., AFL-CIO-CLC v. Rawson, 110 S.Ct. 1904, 1911 (1990) (quoting Vaca v. Sipes, 386 U.S. 171, 190 (1967)).
If the breach of the duty of fair representation "seriously undermined the integrity of the arbitral process," the arbitrator's decision can be set aside. Barnett v. United Air Lines, Inc., 738 F.2d 358, 362 (10th Cir.), cert. denied, 469 U.S. 1087 (1984); see also Hines, 424 U.S. at 567 ().
"[T]he grievance processes cannot be expected to be error-free." Hines, 424 U.S. at 571. Actionable conduct on the part of the Union involves more than "mere errors in judgment." Id.; accord Castelli v. Douglas Aircraft Co., 752 F.2d 1480, 1483 (9th Cir.1985). Tactical errors or negligence of the Union do not give rise to a breach of duty, even if the errors conceivably might have affected the outcome of the arbitration. Barr v. United Parcel Serv., Inc., 868 F.2d 36, 43 (2d Cir.1989).
Here, Plaintiff has failed to establish factual issues regarding whether the arbitral process was undermined by the Union representative's tactical decisions at the arbitration hearing. Plaintiff presented no evidence in support of his allegation that his Union representative was not familiar enough with the case. On the contrary, Plaintiff admitted that the Union representative's brief was thorough and correct. Appellee Supp.App. at 16-17.
On his claim of failure to present medical documentation, the only available evidence was that Plaintiff was medically required to limit his work shifts to eight hours. The Union representative's statement is uncontroverted that the medical evidence was not pertinent to the allegations against Plaintiff.
The Union representative acquiesced in the arbitrator's decision not to hear personal testimony from three witnesses who were prepared to testify on behalf of Plaintiff. The arbitrator received written affidavits from each of the three witnesses. A decision not to call witnesses at an arbitration hearing does not necessarily constitute a breach of the duty of fair representation, see id. at 44, particularly where, as here, the Plaintiff does not allege that the testimony of his witnesses would have differed from, or added to, their respective affidavits. Moreover, none of those witnesses had personal knowledge about the incidents on which the charges against Plaintiff were based.
Plaintiff's remaining contention is that the Union failed to communicate settlement offers between the USPS and Plaintiff. In addressing this claim, we will consider the record in the light most favorable to Plaintiff.
Plaintiff alleges that an offer of settlement of reinstatement with no back pay was authorized by a USPS area manager on the day of the arbitration, but no offer was conveyed to Plaintiff.
Plaintiff fails to demonstrate an issue of fact concerning the alleged offer. We accept as true Plaintiff's statement that a few days after the arbitration hearing, USPS Area Manager Frank Padilla expressed to Plaintiff Padilla's understanding that Plaintiff had refused an offer of reinstatement with no back pay made on the day of the arbitration. That statement neither contradicts nor conflicts with Padilla's affidavit that Padilla had authorized the USPS advocate to make such an offer. After mentioning the alleged offer to Plaintiff, Padilla learned that the USPS advocate never made the offer to the Union because the advocate felt that the USPS was likely to win at arbitration so had decided not to settle the grievance. Appellee Supp.App. at 3.
Even though Plaintiff asserted that the settlement offer had been authorized, he has not established a factual issue of whether the USPS advocate had conveyed a...
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