Weiner v. Beatty

• Decision Date: 08 August 2005
• Docket Number: No. 39605.,39605.
• Parties: Steven WEINER, Appellant, v. Thomas D. BEATTY, Esq., Respondent.
• Court: Nevada Supreme Court

Page 829

116 P.3d 829

Steven WEINER, Appellant, v. Thomas D. BEATTY, Esq., Respondent.

No. 39605.

Supreme Court of Nevada.

August 8, 2005.

Kossack Law Offices and Robert J. Kossack, Las Vegas, for Appellant.

Laxalt & Nomura, Ltd., and Bruce R. Laxalt and Kerry Zachariasen Malone, Reno, for Respondent.

Before the Court En Banc.

OPINION¹

HARDESTY, J.

In this appeal, we consider whether a public-employee union member has an independent claim for legal malpractice against an attorney provided by his union. We conclude that state labor law should be interpreted consistently with federal labor law, which bars legal malpractice claims against lawyers supplied by unions. A union member's remedy lies in an action against the union for breach of the duty of fair representation.

FACTUAL AND PROCEDURAL HISTORY

Dr. Steven Weiner worked for the Clark County School District (CCSD) from 1973 until his termination in 1997.

In October 1996, Weiner was suspended from his employment as a principal at Robinson Middle School. Weiner was a member of the Clark County Association of School Administrators (CCASA), a recognized employee organization² or union for school administrators. The collective bargaining agreement between CCASA and CCSD provided that an employee under investigation was entitled to union representation. Although Weiner had the option to retain his own personal counsel, he requested assistance from CCASA in his quest for reinstatement.

CCASA hired and paid attorney Thomas D. Beatty to represent Weiner during the investigative interview and subsequent arbitration hearing. CCSD was represented in the arbitration by its general counsel C.W. Hoffman, Jr. After three days of hearings, the arbitrator concluded that CCSD had just cause to terminate Weiner.

Unbeknownst to Weiner, Beatty was simultaneously retained by CCSD to represent CCSD's assistant general counsel in a separate, federal law suit.

Weiner filed a state court action against CCASA and then against Beatty individually for malpractice. The cases were consolidated, and Beatty sought summary judgment. The district court concluded that section 301(b) of the Labor Management Relations (Taft-Hartley) Act³ preempted Weiner's claim. The district court also determined that a lawyer representing a collective bargaining organization or union, who argues on behalf of an individual union member, cannot be sued by that member for malpractice. Consequently, the district court granted Beatty's summary judgment motion. Weiner then appealed.⁴

DISCUSSION

This court reviews a district court's decision to grant summary judgment de novo.⁵ Summary judgment is appropriate when, after a review of the record viewed in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.⁶ "In determining whether summary judgment is proper, the nonmoving party is entitled to have the evidence and all reasonable inferences accepted as true."⁷

Weiner filed a malpractice action against Beatty under state law. The district court determined that federal law preempted the state law malpractice claim because under federal law, a union member cannot sue the union attorney for malpractice.⁸ Rather, the union member must sue the union itself for breach of the duty of fair representation.⁹

Federal labor law interpreting Taft-Hartley section 301(b) protects individual union members, agents and representatives from civil liability, so long as their conduct and actions are within the purview of the collective bargaining agreement.¹⁰ In Atkinson v. Sinclair Refining Co., the United States Supreme Court held that union officers and employees are not individually liable for acts performed under the banner of collective bargaining.¹¹ The Atkinson Court emphasized specifically that the policy of holding only the union liable "cannot be evaded or truncated by the simple device of suing union agents or members, whether in contract or tort, or both, in a separate count or in a separate action for damages."¹²

Additionally, the vast majority of courts have determined that an attorney hired by a union to defend a union member covered under a collective bargaining agreement is an agent of the union.¹³ Therefore, a state law malpractice claim will not lie.

A leading case is the Ninth Circuit Court of Appeals decision in Peterson v. Kennedy.¹⁴ In Peterson, the court reasoned that a union provides a service to the member when it furnishes legal counsel,¹⁵ the attorney-client relationship exists between the union and the attorney,¹⁶ and a different standard of care governs union liability and claims for legal malpractice.¹⁷ Therefore, the court held that both in-house and outside counsel were an arm of the union.¹⁸ Accordingly, the court concluded that counsel were also protected by the rule set forth in Atkinson that union officers and employees are immune from personal liability for acts undertaken as union representatives.¹⁹

Weiner contends, however, that the collective bargaining agreement between CCASA and CCSD falls outside the scope of federal labor law because he was employed by a political subdivision of Nevada.

In pertinent part, federal labor statutes provide, "The term `employer' includes any person acting as an agent of an employer, directly or indirectly, but shall not include . . . any State or political subdivision thereof."<sup>20</sup> For purposes of this provision, political subdivisions are "`entities that are either . . . created directly by the state, so as to constitute departments or administrative arms of the government, or . . . administered by individuals who are responsible to public officials or to the general electorate.'"²¹ Under the federal labor statutes' express terms, then, they do not govern employees of political subdivisions of the state.²²

As the CCSD is a political subdivision of the State of Nevada,²³ the federal labor statutes do not apply directly to the CCSD or its employees. Instead, because the CCSD is a local government employer²⁴ and Weiner is a local government employee,²⁵ the Nevada Employee-Management Relations Act (EMRA)²⁶ governs this case.

The EMRA is silent on the issue of immunity from personal liability for union officers and employees for acts undertaken as union representatives. We note, however, that by enacting the EMRA, the Legislature "intended to apply principles similar to those of the NLRA to its public employers."²⁷ We have held that precedent interpreting the federal statutes is persuasive in interpreting the EMRA.²⁸ Further, we recognized in Cone v. Nevada Service Employees Union that local government employee organizations are subject to the duty of fair representation.²⁹ And, we determined in Rosequist v. International Ass'n of Firefighters that "fair representation of an employee by a union involving the implementation of the terms of a collective bargaining agreement is a right arising under the [EMRA] and the failure of a union to fairly represent an employee interferes with that right."³⁰

We take this opportunity to further address the scope of the duty of fair representation under the EMRA. We agree with federal law that the duty of fair representation governs the relationship between union members and union representatives.³¹ When a collective bargaining agreement is in place, the union and its bargaining representatives owe a duty of fair representation to its members.³² The duty of fair representation requires that when the union represents or negotiates on behalf of a union member, it must conduct itself in a manner that is not "arbitrary, discriminatory, or in bad faith."³³ If the union's conduct is deemed to be within the duty of fair representation, liability will not lie against the union for acts undertaken in representing a union member.³⁴

In examining a union's fair representation duty, other states have embraced federal labor law, holding that when a union furnishes an employee with legal counsel, it provides a service to the member.³⁵ For that reason, given the union's duty of fair representation, the union is ultimately responsible to the employee for any deficiency in the performance of the legal service.³⁶

In considering the scope of the fair representation duty, a majority of courts have concluded that a rule imposing personal liability on public-employee union agents would be inconsistent with the standard of conduct required of the union.³⁷ Union agents should not be held to a negligence standard of care, when the union for whom they work is liable only if its representation is "arbitrary, discriminatory, or in bad faith."³⁸ We agree with these courts, and further, we see no reason to adopt a rule imposing malpractice liability on union lawyers representing public employees, when the same lawyer would have no liability under federal labor law representing a nonpublic-employee union member.

Accordingly, we conclude that the EMRA should be interpreted consistently with the federal labor statutes, which bar legal malpractice claims against lawyers supplied by the union.³⁹

Beatty's representation of Weiner arose out of the collective bargaining agreement between CCASA and CCSD, as Beatty was appointed counsel for a grievance covered by the collective bargaining agreement. CCASA paid Beatty. Weiner accepted the service provided by his union and declined the opportunity to retain his own personal attorney. Therefore, Weiner's claim directly implicates the union's duty of fair representation under the EMRA. Under the rule in Peterson, Beatty is considered an arm of the union. As an arm of the union, Beatty is protected from a malpractice suit stemming from this representation, for the union is the sole source of recovery.

CONCLUSION

We conclude that when a union provides an attorney to represent a union member in a matter related to a collective bargaining agreement, that attorney is an agent of the union. As an agent...