Robesky v. Qantas Empire Airways Ltd.

• Decision Date: 13 March 1978
• Docket Number: A,Nos. 75-1238 and 75-1406,AFL-CI,s. 75-1238 and 75-1406
• Parties: 98 L.R.R.M. (BNA) 2090, 83 Lab.Cas. P 10,492 Ann ROBESKY, Plaintiff-Appellant, v. QANTAS EMPIRE AIRWAYS LIMITED, Defendant-Appellee, and International Association of Machinists and Aerospace Workers,irline Employees District 141, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1082

573 F.2d 1082

98 L.R.R.M. (BNA) 2090, 83 Lab.Cas. P 10,492

Ann ROBESKY, Plaintiff-Appellant, v. QANTAS EMPIRE AIRWAYS LIMITED, Defendant-Appellee, and International Association of Machinists and Aerospace

Workers, AFL-CIO, Airline Employees District 141,

Defendant-Appellee.

Nos. 75-1238 and 75-1406.

United States Court of Appeals, Ninth Circuit.

March 13, 1978.

Ernest C. Moore, III (argued), of Torkildson, Katz & Conahan, Honolulu, Hawaii, for plaintiff-appellant.

Peter G. Wheelon (argued), of Anthony, Hoddick, Reinwald & O'Connor, Honolulu, Hawaii, for Qantas Empire Airways Limited.

Sheldon M. Charone (argued), Chicago, Ill., for International Assn. of Machinists and Aerospace Workers, AFL-CIO.

Appeal from the United States District Court for the District of Hawaii.

Before BROWNING, TRASK, and KENNEDY, Circuit Judges.

BROWNING, Circuit Judge:

Ann Robesky was discharged from employment as a reservation sales agent by Qantas Empire Airways Limited. She brought this suit under the Railway Labor Act, 45 U.S.C. §§ 152 and 182, charging her former employer with violation of the collective bargaining agreement, and her union District 141 of the International Association of Machinists and Aerospace Workers, with violation of its duty of fair representation. Judgment was entered for both defendants after trial to the court. Mrs. Robesky appeals.

I

Appellant claims Qantas breached the collective bargaining agreement (1) by refusing to grant her a leave of absence, and (2) by failing to administer less severe punishment than discharge. We find both claims without merit.

1. Appellant was employed by Qantas in April 1964. At first she performed well. Her health and work performance deteriorated, however, because of increasingly severe migraine headaches and the medication she took to relieve them. She was absent from work a substantial portion of the time. ¹ When on duty, her speech was sometimes slurred, her writing illegible, and her work marred by mistakes. On March 17, 1969, Qantas informed appellant that her performance was unacceptable and suspended her pending hearing. On March 24, a hearing was held in accordance with the grievance procedure established by the collective bargaining agreement. Appellant was notified on the following day that she was discharged effective March 30. The Union appealed on her behalf, and a hearing was held on April 16. On that day Qantas notified the Union that "(t)he appeal at the third step is denied and Mrs. Robesky's discharge stands, effective March 30."

At the April 16 hearing the Union asked that appellant be granted a 90-day leave of absence pursuant to Article 10A of the collective bargaining agreement. ² Qantas refused. Appellant contends this refusal breached Article 10A. The parties agree that appellant was entitled to a leave of absence under Article 10A if (1) there was "justifiable reason" for leave, (2) the "requirements of the service will permit" leave, and (3) appellant had made a "proper application" for leave.

The district court noted that a letter from appellant's doctor presented at the hearing stated "it is difficult to determine the length of illness or date of cure," and Qantas' representatives at the hearing "argued that the requirements of service would not permit granting a leave of absence especially in view of the medical uncertainties as to appellant's condition." The district court concluded that appellant's discharge was not in violation of the collective bargaining agreement.

The district court's holding that Article 10A was not violated implies a determination that appellant failed to satisfy at least one of the three preconditions for obtaining leave under Article 10A. The record would support such a determination as to all three preconditions. As to the precondition that "requirements of the service will permit," there was evidence that appellant was one of only two reservation sales agents on a swing shift, and that the nature of the position made it impossible to fill it with a temporary employee. As Qantas argues, ill health would seem to provide a "justifiable reason" for temporary leave under the contract only when there is a reasonable possibility that temporary leave might alleviate the problem and enable the employee to return to work. Qantas' local manager, Mr. King, testified that appellant's request was denied because appellant's doctor could not give him any encouragement that a 90-day period would make any difference in her performance. As Mr. King noted, although an earlier two-week vacation had resulted in some improvement in appellant's work performance, the improvement was short-lived. Finally, it is doubtful that a "proper application" was made on appellant's behalf. Appellant was suspended March 17 and discharged effective March 30. The Union first requested temporary leave for appellant at the April 16 hearing. It is unlikely Article 10 was intended to apply to an employee not only suspended but already discharged.

2. Appellant argues that Qantas breached the collective bargaining agreement by discharging her rather than adopting a less extreme course. Admittedly it was Qantas' policy "to move slowly . . . , (to) give the employee every opportunity to correct the error of his ways." Appellant contends that her "abrupt discharge" was contrary to this "established and admitted practice of progressive discipline," and therefore was not for "just cause" within the meaning of the collective bargaining agreement. See Babcock and Wilcox Co., 41 L.A. 862 (1963).

The district court concluded that the collective bargaining agreement had not been violated, thus determining that Qantas acted within the limits of its general practice of affording a delinquent employee a reasonable opportunity to achieve acceptable performance before resorting to discharge. The record supports this determination. Appellant's discharge was not "abrupt." On the contrary, the record reflects repeated efforts by Qantas over a period of months to solve the problem short of discharge, including conferences, oral and written warnings and admonitions, suspensions from daily work, and a two-week leave of absence.

We therefore sustain the district court's rejection of appellant's direct contract claim against Qantas on its merits. ³ This does not end the matter, however. A less-than-ironclad grievance may be settled. Appellant's grievance was. As will be seen, the manner in which the Union handled the settlement may require that appellant be afforded a remedy against the Union. ⁴

II

Appellant contends that in the special circumstances of this case the Union breached its duty to represent her fairly by failing to tell her that her grievance would not be taken to arbitration, leading appellant to reject an offer of settlement she would otherwise have accepted. ⁵

Appellant first argues that the trial court applied an erroneous legal standard to the evidence. We must agree.

The court stated its general finding in these words: "There is no evidence of ill will, prejudice, or deliberate bad faith on the part of the UNION or any of its representatives with ROBESKY, or in the handling of her case." This formulation appears to reflect the standard applied prior to Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). ⁶ In that case, however, the standard was restated: "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" (emphasis added). ⁷ The addition of arbitrariness to the catalogue of conduct the union is obliged to avoid "reflects a calculated broadening of the fair representation standard," and "a rejection of . . . cases . . . holding that 'a bad faith motive, an intent to hostilely discriminate' is required . . . ." Retana v. Apartment Workers Local 14, 453 F.2d 1018, 1023 n.8 (9th Cir. 1972). Since the district court, as the trier of fact, may have absolved the Union for want of evidence of evil motive without considering whether the Union's conduct was arbitrary, the judgment must be reversed, see Beriault v. ILWU Local 40, 501 F.2d 258, 264 (9th Cir. 1974), unless on the evidence a reasonable person could not have found the Union acted arbitrarily. ⁸ We turn to the record.

Following rejection of appellant's appeal at the third and final step of the grievance procedure, Mrs. Robesky asked William Reick, the Union's vice president for Hawaii, to submit her grievance to arbitration. Reick drafted a proposed submission and sent it to the office of District 141 of the Union in Burlingame, California to be revised, typed, and filed. Richard W. Thomas, General Chairman of District 141, and George Robinson, President and General Manager of District 141, did not file appellant's submission until after the expiration of the time limits specified in the collective bargaining agreement. ⁹ Either because of this tardy submission or, as the Union contends, because of their low evaluation of the merits of appellant's grievance, Robinson and Thomas decided to settle the grievance short of arbitration. As a result "no arbitrator was selected, or even attempted to be selected." ¹⁰ Neither Reick nor Robesky were informed of the tardy submission or of the Union's decision to forgo arbitration. Neither "were aware that the submission to arbitration was languishing. Both thought an arbitrator would take up the case."

Robinson and Thomas pressed for settlement of the Robesky grievance. In October of 1969, their efforts proved successful; in return for a Union concession on a separate matter, Qantas agreed to a compromise. Under the compromise, Mrs. Robesky was to be reinstated by Qantas without back pay, without certain seniority rights, and subject to a 90-day probationary period. In exchange for Qantas' agreement to offer appellant reinstatement, the Union withdrew "from any further...