Shane v. Greyhound Lines, Inc.

• Decision Date: 27 February 1989
• Docket Number: No. 87-3526,87-3526
• Citation: 868 F.2d 1057
• Parties: 130 L.R.R.M. (BNA) 2822, 111 Lab.Cas. P 10,966 Louis J. SHANE and Elizabeth L. Shane, husband and wife; Steven M. Thornell; Jeffrey Ischar; James Brockman, Plaintiffs-Appellants, v. GREYHOUND LINES, INC., a foreign corporation; Amalgamated Council of Greyhound Divisions Amalgamated Transit Union, Locals 1055 and 1384, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1057

868 F.2d 1057

130 L.R.R.M. (BNA) 2822, 111 Lab.Cas. P 10,966

Louis J. SHANE and Elizabeth L. Shane, husband and wife;

Steven M. Thornell; Jeffrey Ischar; James

Brockman, Plaintiffs-Appellants, v. GREYHOUND LINES, INC., a foreign corporation; Amalgamated

Council of Greyhound Divisions Amalgamated Transit

Union, Locals 1055 and 1384, Defendants-Appellees.

No. 87-3526.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 1, 1988.

Decided Feb. 27, 1989.

Sam B. Franklin, Seattle, Wash., for plaintiffs-appellants.

Curman Sebree, Tacoma, Wash., for defendants-appellees.

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

Before WALLACE ^* and FLETCHER, Circuit Judges, and AGUILAR, ^** District Judge.

FLETCHER, Circuit Judge:

Appellants, Greyhound maintenance workers, brought this wrongful discharge action against their employer, Greyhound Lines, after the employees' union had already grieved the matter under the collective bargaining agreement and had accepted a settlement from Greyhound on their behalf. Appellants disapproved of the Union's settlement because it did not expressly reserve their rights to bring further action against Greyhound. In this suit the employees seek damages for wrongful discharge under federal labor law and state tort and contract law. We affirm the district court's grant of summary judgment for Greyhound.

BACKGROUND

Appellants Louis Shane, Steven Thornell, James Brockman, and Jeffrey Ischar were discharged from their positions as Greyhound maintenance workers a few months after the conclusion of a long, unsuccessful strike in which these four apparently played a significant role. Their discharge notices cite the reason for discharge as destruction of company property and harassment of other workers, charges based on graffiti written on the terminal's walls, lockers, and other property during the strike.

Appellants filed grievances with their union, the Amalgamated Transit Union, Locals 1055 and 1384 ("the Union"). Pursuant to a collective bargaining agreement (CBA) containing a final and binding arbitration clause, the Union is the exclusive bargaining representative for these Greyhound employees. Appellants also filed unfair labor practice charges with the National Labor Relations Board (NLRB), alleging they had been terminated because of their union and strike activity in violation of Sections 7 and 8 of the National Labor Relations Act (NLRA), 29 U.S.C. Secs. 157 and 158.

The Union pursued each appellant's grievance through successive stages, up to and including the selection of three-party arbitration panels. At the onset of the arbitration hearings, it reached a settlement with Greyhound. The Union believed the settlement it had obtained--reinstatement with seniority, and back pay less one month--was fair and would meet with appellants' approval. Appellants contend that, contrary to their wishes, the settlement did not include language preserving The NLRB dismissed the unfair labor practice charges, saying that further proceedings were not warranted since the grievance had been settled. Appellants did not appeal the dismissal, apparently feeling that would be futile. Instead, they brought this action in federal district court against Greyhound and the Union, seeking redress for violation of their rights not fully compensated under the settlement. ¹

their rights to pursue additional damage claims against Greyhound. They did, however, return to work and cash their back-pay checks.

The district court granted Greyhound's motion for summary judgment on all counts. It found that the tort claims were preempted by LMRA Sec. 301 and NLRA Secs. 7 and 8, and that appellants had failed to raise an issue of material fact that could defeat summary judgment on the claim for breach of the Union's duty of fair representation. This appeal followed.

STANDARD OF REVIEW

We review a district court's grant of summary judgment de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986).

DISCUSSION

I. Wrongful Discharge for Union Activity

Appellants allege federal claim for wrongful discharge--that they were wrongfully terminated for their union activities during the strike. This claim encompasses both a breach of the CBA and an unfair labor practice. Both allegations fail but for different reasons: (1) the CBA breach cannot be brought against the employer because appellants have failed to show the Union breached its duty of fair representation; and (2) the unfair labor practice charge is preempted by NLRA Secs. 7 and 8.

A. Breach of the Duty of Fair Representation

Appellants' federal wrongful discharge claim is effectively a suit for breach of the CBA, and as such states a claim under LMRA Sec. 301, 29 U.S.C. Sec. 185(a). Federal courts have concurrent jurisdiction with the NLRB if an activity claimed to be an unfair labor practice also allegedly violates a collective bargaining agreement. Lumber Production Industrial Workers v. West Coast Industrial Relations Association, Inc., 775 F.2d 1042, 1045 (9th Cir.1985). However, an employee subject to a CBA who makes his or her union the exclusive bargaining agent must prove that the union breached its duty of fair representation before proceeding with a Sec. 301 suit against the employer. Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 572, 96 S.Ct. 1048, 1060, 47 L.Ed.2d 231 (1976). Appellants have failed to make a case that the Union breached its duty of fair representation.

Appellants' two most likely grounds for showing a breach are first, the Union's acceptance of a settlement rather than proceeding to arbitration; and second, appellants' contention that the Union discriminates against maintenance workers, and in favor of drivers, in its handling of grievances.

The first ground fails because of the great deference we accord unions' handling of grievances. For a union to breach its duty of fair representation, its conduct in handling the grievance must be "arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, 386 U.S. at 190, 87 S.Ct. at 916; Peterson v. Kennedy, 771 F.2d 1244, 1253-54 (9th Cir.1985) ("We have never held that a union has acted in an arbitrary manner where the challenged conduct involved the union's judgment as to how best to handle a grievance."), cert. denied, 475 U.S. 1122, 106 S.Ct. 1642, 90 L.Ed.2d 187 (1986). A union's representation need not be error free. Castelli v. Douglas Aircraft Co., 752 F.2d 1480, 1482 (9th Cir.1985).

Here, the Union's pursuit of appellants' grievances through to setting arbitration hearings was not a "perfunctory" handling that would constitute "arbitrary" treatment, Peterson, 771 F.2d at 1254, nor was its decision to accept a settlement which gave the employees reinstatement, back pay (less one month), and a return to seniority an arbitrary or bad faith exercise of judgment. Scott v. Machinists Automotive Trades Dist. Lodge No. 190, 827 F.2d 589, 593 (9th Cir.1987). Appellants' contemporaneous objections to the settlement do not render the Union's acceptance of it a bad faith act. When employees make their union the sole bargaining representative with the employer, they relinquish the right to control the settlement of their grievances. Unions are free to negotiate and accept settlements even without the grievants' approval. Scott v. Machinists, 827 F.2d at 593; Otero v. International Union of Elec., Radio and Machine Workers, 474 F.2d 3, 4 (9th Cir.1973); Borg v. Greyhound Lines, Inc., 116 L.R.R.M. 3315 (N.D.Cal.1984).

Furthermore, the settlement agreement as it was accepted by the Union did not prejudice appellants' other claims. While not expressly reserving the appellants' rights, the settlement did not affirmatively assert that the appellants had waived all rights to other claims against Greyhound. In addition, the provision appellants wanted to include in the settlement--an explicit right to go against Greyhound for additional damages--would have been toothless, since the additional damage claims they believed they could bring were not available, under federal law, to employees bound by the terms of a collective bargaining agreement.

Appellants second ground--discriminatory treatment of maintenance workers--is based solely on the affidavit of Steven Thornell. Because the affidavit contains only conclusory allegations, not backed up by statements of fact, it cannot defeat a motion for summary judgment. Angel v. Seattle-First Nat'l Bank, 653 F.2d 1293, 1299 (9th Cir.1981). We further note that appellants' attorney had over a year in which to conduct discovery to support this claim, thus, the district court did not abuse its discretion in denying Plaintiffs' Motion for Reconsideration of the Grant of Summary Judgment when the motion sought additional time for discovery.

B. NLRA Preemption of Wrongful Discharge for Union Activities

Appellants assert a federal wrongful discharge claim that they were terminated for their active participation in the strike. ² While federal courts share concurrent jurisdiction with the Board over an activity constituting an unfair labor practice and allegedly violating section 301, here, the employees cannot sustain a section 301 action. Aside from section 301 claims, any federal or state claim for wrongful discharge based on union activity is preempted by NLRA Secs. 7 and 8. 29 U.S.C. Secs. 157, 158; San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). Garmon preemption is intended to protect the NLRB's exclusive jurisdiction over unfair labor practice charges.

Here, appellants first appropriately brought their wrongful discharge claims before the NLRB, which dismissed them. Instead of appealing that dismissal, appellants have restated the claim and included it in this action. Assuming for the sake of argument that appellants' failure to appeal the NLRB...