Johnson v. U.S. Postal Service

• Decision Date: 02 April 1985
• Docket Number: No. 84-3927,84-3927
• Citation: 756 F.2d 1461
• Parties: 118 L.R.R.M. (BNA) 3411 Kenneth A. JOHNSON, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE and National Rural Letter Carriers Association, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1461

756 F.2d 1461

118 L.R.R.M. (BNA) 3411

Kenneth A. JOHNSON, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE and National Rural Letter

Carriers Association, Defendants-Appellees.

No. 84-3927.

United States Court of Appeals, Ninth Circuit.

Submitted April 2, 1985 ^*.

As Amended May 3, 1985.

Decided April 5, 1985.

John A. Bardelli, Spokane, Wash., for plaintiff-appellant.

John E. Lamp, Earl Hicks, Spokane, Wash., Edward F. Ward, Jr., Lori Joan Dym, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Washington.

Before WRIGHT, KENNEDY, and ANDERSON, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Kenneth A. Johnson was discharged from the U.S. Postal Service following his conviction for third-degree theft arising from off-duty conduct. Johnson and his wife sued the Postal Service and his union for reinstatement, damages and backpay. The plaintiffs alleged breach of the collective bargaining agreement by the Postal Service and violation of the union's duty of fair representation. Following presentation of the plaintiff's case on liability, the district court granted the defendants' Rule

41(b), Fed.R.Civ.P., ¹ motions for dismissal and entered oral findings. We affirm.

FACTS

Johnson, a college graduate, was hired by the U.S. Postal Service in the spring of 1975 as a part-time substitute rural letter carrier in Spokane. Rural carriers act as traveling post offices, selling stamps and money orders to customers.

In June 1976, Johnson became a full-time rural carrier assigned to Spokane's Rosewood Station. He served approximately 500 patrons and drove 100 miles per day.

Previously, full-time rural carrier positions were filled by appointment based on system-wide seniority. Johnson was promoted to full-time status pursuant to a new contract agreement which gave senior part-time workers first priority for new full-time jobs. City carriers and management coveted the position Johnson had won.

He was harassed by some of his co-workers. Postal employees called him names, threatened to "plant" mail in his car and discarded some of his mail. Additionally, he worked an overburdened route for the first 16 months that he was a full-time employee. There is evidence that he increasingly relied on alcohol to cope with job-related stress.

During his employment with the Postal Service, Johnson joined the National Rural Letter Carriers Association ("NRLCA") union. It was the certified collective bargaining representative of the bargaining unit to which he belonged.

In July 1975, the Postal Service and NRLCA entered into a collective bargaining agreement ("Agreement"). It stated in pertinent part:

In the administration of this Article, a basic principle shall be that discipline should be corrective in nature, rather than punitive. No employee may be disciplined or discharged except for just cause such as, but not limited to, insubordination, pilferage, intoxication (drugs or alcohol), incompetence, failure to perform work as requested, violation of the terms of this Agreement, or failure to observe safety rules and regulations. Any such discipline or discharge shall be subject to the grievance-arbitration procedure provided for in this Agreement, which could result in reinstatement and restitution, including back pay.

* * *

* * *

When there is reasonable cause to believe an employee guilty of a crime for which a sentence of imprisonment can be imposed, the advance notice requirement shall not apply and such an employee may be immediately removed from pay status.

Collective Bargaining Agreement (July 21, 1975--July 20, 1978), Pltf.Ex. 1, Art. XVI, at 33, 34.

While off duty on the evening of January 28, 1978, Johnson and a friend were arrested for stealing air pressure regulators from a railroad yard. Johnson did not deny taking a regulator, valued at $140.

On February 10, he entered a guilty plea to the misdemeanor offense of third-degree theft in Spokane County District Court. He was fined $75 and given a 30-day suspended sentence with one year deferred. His theft conviction appeared in the court records section of the local newspaper which served his postal route.

On February 16, 1978, Johnson was discharged from his employment with the Postal Service. The letter of termination indicated the sole reason for removal was that he was found guilty of a crime for which a sentence of imprisonment could be In July 1982, the theft charge against Johnson was dismissed pursuant to Section 3.66.067 of the Revised Code of Washington. ²

imposed. The letter added: "Your retention in an active duty status may result in damage to U.S. Postal Service property, loss of mail or funds, or may be detrimental to the interest of the government or injurious to you, your fellow workers, or the general public."

Article XV of the Agreement provided a three-step grievance procedure leading to binding arbitration. Johnson filed a grievance concerning his discharge. The union's local steward, Leland Hurlbutt, declined to represent Johnson in the grievance process and turned the case over to Neil M. Buchanan, the union's state steward, who appealed the Step 1 denial. Buchanan discussed the case with Johnson and another employee to prepare for the Step 2a meeting.

After the Postal Service denied the Step 2 appeal, Buchanan forwarded the grievance file to Tom W. Griffith, the union's regional representative, for a decision whether to arbitrate the discharge. Griffith communicated with Johnson to obtain additional information about the theft. Before a decision was made, Johnson's case was set for arbitration to protect the union's rights.

Meanwhile, the union forwarded the file to its General Counsel, William B. Peer, for his review and legal opinion. As an experienced labor lawyer, Peer was aware of several hundred arbitration decisions in similar cases. He recommended against taking Johnson's grievance to arbitration because he believed there was little likelihood of success.

STANDARD OF REVIEW

On a Rule 41(b) motion, the trial judge weighs the evidence, resolves conflicts and determines where the preponderance lies. See Ellis v. Carter, 328 F.2d 573, 577 (9th Cir.1964). The motion may be granted even if the plaintiff has made out a prima facie case, provided the court is convinced that the evidence preponderates against the plaintiff. Securities and Exchange Commission v. Murphy, 626 F.2d 633, 658 (9th Cir.1980).

We review factual findings made pursuant to Fed.R.Civ.P. 41(b) under the "clearly erroneous" standard. An appellate court may not set aside findings of fact unless "on the entire evidence [it] is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed.2d 746 (1948); Sutton v. Atlantic Richfield Co., 646 F.2d 407, 412 (9th Cir.1981). Credibility determinations are insulated from appellate review. Sutton, 646 F.2d at 411.

Whether the district court's factual findings are clearly erroneous is separate from the question whether, under the facts and law, the plaintiff has shown no right to relief. 5 Moore's Federal Practice, p 41.13, at 41-166--41-167 (1984). See e.g., Ingraham v. Wright, 498 F.2d 248 (5th Cir.1974), aff'd, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (appellate court sustained findings of fact but reversed order of dismissal); American Plan Corp. v. State Loan & Finance Corp., 365 F.2d 635, 639 (3rd Cir.1966), cert. denied, 385 U.S. 1011, 87 S.Ct. 719, 17 L.Ed.2d 548 (1967) (clearly erroneous rule has no application in deciding whether trial court applied correct legal standard).

It is unclear what standard of review applies to "ultimate findings" made pursuant to a Rule 41(b) motion. See Pullman-Standard v. Swint, 456 U.S. 273, 289-90 n. 19, 102 S.Ct. 1781, 1790-91 n. 19, 72 L.Ed.2d 66 (1982) (substantial authority on both sides of the issue); Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir.1983) (Ninth Circuit cases divided). We believe de novo review is warranted because mixed questions of law and fact are involved. See 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2376, at 248 (1971); cf. United States v. McConney, 728 F.2d 1195, 1199-1204 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984) (discussing mixed questions of law and fact).

ANALYSIS

Duty of Fair Representation

This action is brought under 39 U.S.C. Sec. 1208(b) of the Postal Reorganization Act, which gives district courts jurisdiction over "suits for violation of contracts between the Postal Service and a labor organization representing Postal Service employees...." Because that statute is essentially identical to Section 301(a) of the National Labor Relations Act, Bowen v. United States Postal Service, 459 U.S. 212, 232 n. 2, 103 S.Ct. 588, 600 n. 2, 74 L.Ed.2d 402 (1983), we may properly rely on Section 301 cases for guidance.

A labor union's duty of fair representation is a "statutory obligation to serve the interests of all members without hostility or discrimination towards any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842 (1967). Breach occurs only when a union acts in an arbitrary, discriminatory or bad faith manner. Id. at 190, 87 S.Ct. 916. A union's conduct is arbitrary if "without rational basis." Robesky v. Qantas Empire Airways, Ltd., 573 F.2d 1082, 1089 (9th Cir.1978).

The Supreme Court has emphasized that unions must have wide discretion to act in what they perceive to be their members' best interests. See Ford Motor Co. v. Huffman, 345 U.S. 330, 337-38, 73 S.Ct. 681, 685-86, 97 L.Ed.2d 1048 (1953). This circuit also has stressed the importance of preserving union discretion by narrowly construing the unfair representation doctrine. Castelli v....