Schwartz v. Brotherhood of Maint. of Way Employes, 00-8045

• Decision Date: 04 September 2001
• Docket Number: No. 00-8045,00-8045
• Citation: 264 F.3d 1181
• Parties: (10th Cir. 2001) PAUL M. SCHWARTZ; KEVIN R. KLUNDT; BILLY W. ROBINSON; ANDREW E. DILWORTH; JAY L. HATFIELD; ERIC A. JESSON; SCOTT VESKRNA; and all other similarly situated members of the Brotherhood of Maintenance of Way Employes, Plaintiffs - Appellants, v. BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES, and its applicable Division; and BURLINGTON SYSTEM DIVISION, Defendants - Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1181

264 F.3d 1181 (10th Cir. 2001)

PAUL M. SCHWARTZ; KEVIN R. KLUNDT; BILLY W. ROBINSON; ANDREW E. DILWORTH; JAY L. HATFIELD; ERIC A. JESSON; SCOTT VESKRNA; and all other similarly situated members of the Brotherhood of Maintenance of Way Employes, Plaintiffs - Appellants, v. BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES, and its applicable Division; and BURLINGTON SYSTEM DIVISION, Defendants - Appellees.

No. 00-8045

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

September 4, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING, (D.C. No. 99-CV-171-B)

[Copyrighted Material Omitted] Bruce S. Asay (Keith S. Burron with him on the briefs) of Associated Legal Group, LLC, Cheyenne, Wyoming, for Plaintiffs-Appellants.

Charles A. Collins, St. Paul, Minnesota (Michael R. O'Donnell of Burke, Woodard & O'Donnell, PC, Cheyenne, Wyoming, and William A. Bon of Brotherhood of Maintenance of Way Employes, Southfield, Michigan, with him on the brief), for Defendants-Appellees.

Before TACHA, Chief Judge, McKAY and CUDAHY,^* Circuit Judges.

McKAY, Circuit Judge.

This appeal requires us to decide whether a union breached its duty of fair representation to several members. The district court granted summary judgment to Defendant, the Brotherhood of Maintenance of Way Employes, and dismissed the case. Plaintiffs, primarily former union members, appeal. We exercise jurisdiction pursuant to 28 U.S.C. § 1291.

Our recitation of the facts warrants some preliminary explanation. The summary judgment posture of the case compels us to view the evidence in the light most favorable to Plaintiffs, the nonmoving party below. See Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1313 (10th Cir. 1999). This evidentiary lens reveals a case teeming with genuine factual disputes. That is, a rational juror could decide the disputed factual allegations in Plaintiffs' favor based on the evidence presented. See Chasteen v. UNISA JECS Corp., 216 F.3d 1212, 1216 (10th Cir. 2000). To avert summary judgment, however, the contested facts must be material. In other words, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, if Plaintiffs' version of the genuine disputed facts demonstrates a breach of the duty of fair representation, then the dispute must be material, and summary judgment cannot lie. For purposes of this appeal, therefore, we resolve all genuine fact disputes in Plaintiffs' favor and will recite the facts accordingly, without mention of the Defendant union's contrary allegations. If the facts, thus stated, constitute a breach of the union's duty, then we must reverse and remand.

The record shows that Plaintiffs worked for the Burlington Northern-Santa Fe Railroad in the maintenance of way "craft" and belonged to Defendant union, the Brotherhood of Maintenance of Way Employes (International), represented locally by the Burlington System Division. The railroad advertised openings in the train service craft, considered a better job than maintenance of way work. A different union, the United Transportation Union, represents train service employees. Plaintiffs opted to change crafts, which necessitated approximately fifteen weeks of full-time training and successful completion of a test.

However, Plaintiffs could not simply skip their maintenance of way work to attend train service classes without consequence. Failure to report to work constituted grounds for dismissal--a risky proposition considering there was no guarantee that a trainee would ultimately qualify for train service work. Thus, to preserve their seniority rights in Defendant union during the training period, Plaintiffs were required to obtain leaves of absence and any necessary extensions thereof for the term of their absence. All of the Plaintiffs secured an initial leave of absence of sixty or ninety days.

At some point during the train service courses, Plaintiffs heard rumors that there would not be any openings when they finished. Apparently, train service workers coming in from other parts of the country were exercising their seniority rights by taking the positions anticipated by Plaintiffs. Understandably concerned about employment prospects, Plaintiffs questioned whether they could return to the maintenance of way craft pending openings in train service. This presented a novel situation for Defendant union. Historically, craft transfers had always found work in the new craft, and no one had ever needed or wanted to return to a previous department. Moreover, the collective bargaining agreement did not completely address the Plaintiffs' question. The most relevant provision simply provided that "an employe on leave of absence accepting other employment without first obtaining written permission from the Company and the duly accredited representative of the employes will be considered as having left the service and all seniority rights will be forfeited." Appellee's Supp. App. at 122 (collective bargaining agreement, rule 15E).

When confronted with the dilemma, David Joynt, the Chairman of the Defendant Burlington System Division union, repeatedly told Plaintiffs and/or their train service instructor, who had been investigating the issue on Plaintiffs' behalf, that by merely passing the train service exam craft transfers would lose their maintenance of way seniority, regardless of whether they continued to hold valid leaves of absence. Based on this representation, Plaintiffs let their leaves of absence expire while going on to complete the train service course and pass the final exam.¹ Without a valid leave, they automatically lost their positions in maintenance of way. Upon qualifying for train service work, Plaintiffs were immediately placed on furlough, a sort of waiting period allowing an employee to do whatever else he wants, even getting another job, subject to being called to work in train service when openings became available.

Several months after first learning of the craft transfer problem, Chairman Joynt arranged with the railroad to allow those employees with continuing leaves of absence from maintenance of way, who had qualified for but could not be placed in train service, to return to work in maintenance of way. This arrangement did nothing for Plaintiffs, however, who had already lost their seniority. The district court assumed, as do we on summary judgment, that but for Chairman Joynt's advice that their leaves of absence did not matter, Plaintiffs would have maintained active leaves and been able to return to the maintenance of way department while on furlough from train service. See Aplt Br. App. B. at 9 (Order Granting Defendants' Motions for Summary Judgment). Plaintiffs sued Defendant union in federal district court. In relevant part, they claimed that Chairman Joynt's advice and dilatory resolution of this novel craft transfer dilemma breached Defendant union's duty of fair representation. The district court granted Defendant summary judgment.

The duty of fair representation arises from a union's legal status as the sole and exclusive bargaining representative of employees' interests with their employer. See Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1239 (10th Cir. 1998), cert. denied, 526 U.S. 1018 (1999). From that right to represent all the members of a designated employment unit flows an "obligation to serve the interests of all members." Vaca v. Sipes, 386 U.S. 171, 177 (1967). By design, the obligation "stands 'as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.'" DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 165 n.14 (1983) (quoting Vaca, 386 U.S. at 182). On the other hand, representing collectively a diverse constituency poses tremendous difficulties. Even the best intentioned, most thoughtful union action will almost invariably further the interests of one employee faction at the expense of another. See, e.g., Considine v. Newspaper Agency Corp., 43 F.3d 1349, 1357 (10th Cir. 1994). Consequently, too stringent a duty of representation would subject the union to endless attacks from within, undermining the very purpose for the union's existence--to present a strong, unified front to employers. Thus, a sensible duty of fair representation must allow for the "wide latitude," Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 78 (1991) [hereinafter ALPA], that a union needs to represent collectively the varied interests of its members while at the same time protecting the individual employee's legitimate claim for redress due to unjustifiable union conduct.

The duty of fair representation attempts to accomplish both goals by making a union liable to its members for conduct that is "'arbitrary, discriminatory, or in bad faith.'" Id. at 67 (quoting Vaca, 386 U.S. at 190); see also Webb, 155 F.3d at 1240-41 (stating that "perfunctory" union conduct may be actionable in certain contexts or as a specific type of arbitrary conduct). The Supreme Court has made it clear that this duty "applies to all union activity." ALPA, 499 U.S. at 67, 77. Although specific articulations may vary slightly based on context, see, e.g., Breininger v. Sheet Metal Workers, 493 U.S. 67, 89 (1989) (explaining the duty in a union hiring hall context); Webb, 155 F.3d at 1239 (explaining scope of the duty in a grievance arbitration proceeding), the general contours of the tripartite standard are well-established.

A union's actions are arbitrary only if, "in light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outside a 'wide range of reasonableness' as to be irrational." [ALPA, 499 U.S. at 67 (citation omitted)]. A union's discriminatory conduct violates its duty of fair representation if it is "invidious...