- Joined
- May 8, 2007
- Messages
- 3,146
- Reaction score
- 3,236
Here is THE standard by which ALL DFR's are measured. In NO WAY can Silver grant what the AOL pilots want....NO WAY!
"FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
ü CHERYL ANN BECK, Plaintiff-Appellee, No. 05-16414 v. D.C. No. ý CV-02-00495-EHC UNITED FOOD AND COMMERCIAL WORKERS UNION, Local 99, OPINION Defendant-Appellant. þ
Appeal from the United States District Court for the District of Arizona Earl H. Carroll, District Judge, Presiding
Argued and Submitted May 14, 2007ÐSan Francisco, California
Filed November 1, 2007
Before: Cynthia Holcomb Hall, Diarmuid F. O'Scannlain, and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta"
"We first turn to the district court's holding that Local 99 breached its duty of fair representation in handling Beck's grievances. ªThe duty of fair representation is a judicially established rule imposed on labor organizations because of their status as the exclusive bargaining representative for all of the employees in a given bargaining unit.º Peterson v. Ken-nedy, 771 F.2d 1244, 1253 (9th Cir. 1985). The duty of fair representation exists because a single labor organization rep-resents the interests of all employees within a unit, and ªif individual employees are not to be deprived of all effective means of protecting their own interests, it must be the duty of the representative organization to `serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.' º DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164 n.14 (1983) (quoting Vaca v. Sipes, 386 U.S. 171, 177 (1967)). The burden of proving a breach of the duty of fair representation is on the plaintiff. Vaca, 386 U.S. at 193; Slevira v. W. Sugar Co., 200 F.3d 1218, 1221 (9th Cir. 2000) (citing Vaca).
A union breaches its duty of fair representation when its ªconduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.º Vaca, 386 U.S. at 190; see also Air Line Pilots Ass'n. Int'l v. O'Neill, 499 U.S. 65, 67 (1991). Conduct can be classified as arbitrary ªonly when it is irrational, when it is without a rational basis or explanation.º Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 46 (1998). This deferential standard for arbitrary conduct ªgives the union room to make discretionary deci-sions and choices, even if those judgments are ultimately wrong.º Marquez, 525 U.S. at 45-46.
In light of this standard, we have analyzed the breach of the duty of fair representation on a continuum. See Peters v. Bur-lington N.R.R. Co., 931 F.2d 534, 539-40 (9th Cir. 1991) (ª `[M]inisterial act' and `act of judgment' represent . . . opposing points on a continuum that broadly attempts to sepa-rate discretionary decision making from inexplicable con-duct.º); see also Marino v. Writers Guild of Am., E., Inc., 992 F.2d 1480, 1486 (9th Cir. 1993).
On one end of the continuum is intentional conduct by a union exercising its judgment. Peters, 931 F.3d at 539-40. As noted above, a union's conduct constitutes an exercise of judgment entitled to deference even when the union's ªjudg-ments are ultimately wrong.º Marquez, 525 U.S. at 45-46. Under Supreme Court precedents, so long as a union exercises its judgment, no matter how mistakenly, it will not be deemed to be wholly irrational. Id. at 46; O'Neill, 499 U.S. at 78. We may decline to give a union the deference owed to an exercise of judgment only where union actions or inactions are ªso far outside a wide range of reasonableness that [they are] wholly irrational or arbitrary.º O'Neill, 499 U.S. at 78 (internal quo-tations and citations omitted); see also Peters, 931 F.2d at 540 (ªt makes little sense to allow a union to hide behind the mantle of `judgment' and `discretion' when the evidence sug-gests that it actually exercised neither.º); Peterson v. Ken-nedy, 771 F.2d 1244, 1254 (1985) (ªIn all cases in which we found a breach of the duty of fair representation based on a union's arbitrary conduct, it is clear that the union failed to perform a procedural or ministerial act, that the act in ques-tion did not require the exercise of judgment and that there was no rational and proper basis for the union's conduct.º (emphasis added)).
Although we cannot deem a union's exercises of judgment to be wholly irrational and thus arbitrary, a union can still breach the duty of fair representation if it exercised its judg-ment in bad faith or in a discriminatory manner. Moore v. Bechtel Power Corp., 840 F.2d 634, 636 (9th Cir. 1988). To establish that the union's exercise of judgment was discrimi-natory, a plaintiff must adduce ªsubstantial evidence of dis-crimination that is intentional, severe, and unrelated to legitimate union objectives.º Amalgamated Ass'n of St., Elec. Ry. & Motor Coach Employees of Am. v. Lockridge, 403 U.S. 274, 301 (1971) (internal quotations omitted); see also Vaca, 386 U.S. at 177. To establish that the union's exercise of judgment was in bad faith, the plaintiff must show ªsubstan-tial evidence of fraud, deceitful action or dishonest conduct.º Lockridge, 403 U.S. at 299.
On the other end of the continuum are actions or omissions that are unintentional, irrational or wholly inexplicable, such as an irrational failure to perform a ministerial or procedural act, Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, 1273 (9th Cir. 1983); see also Marquez v. Screen Actors Guild, Inc., 124 F.3d 1034, 1043 (9th Cir. 1997), aff'd, 525 U.S. 33 (1998). We have referred to such actions or omissions as ªar-bitraryº action. For example, courts have consistently refused to accept unions' claims that their actions involved any judg-ment or strategy where the union simply failed to perform some procedural act. See, e.g., Peters, 931 F.2d at 541 (ª[plaintiff] had presented a triable question as to whether the union acted in a completely arbitrary, indifferent manner by failing to research the [collective bargaining agreement]º); Moore, 840 F.2d at 637 (failure to provide notice of meetings and tardy notification of a grievance decision might be arbi-trary); Galindo v. Stoody Co., 793 F.2d 1502, 1514 (9th Cir.1986) (union representative's failure to notify employer that employee was a steward was arbitrary where the representa-tive knew of impending layoffs); Dutrisac, 749 F.2d at 1274 (union's failure to file a grievance on time was arbitrary); Robesky v. Qantas Empire Airways, Ltd., 573 F.2d 1082, 1091 (9th Cir. 1978) (ªtrier of fact could reasonably find that the Union's failure to disclose to appellant that her grievance would not be submitted to arbitrationº was arbitrary).
These arbitrary actions can breach the duty of fair represen-tation only where the act substantially injures the union mem-ber. Such an injury may arise in situations where ªthe individual interest at stake is strongº and the union's arbitrary action or omission ªcompletely extinguishes the employee's [grievance] right
[1] In sum, in order to hold that union conduct breached the duty of fair representation, we must determine either that the union conduct at issue is a discriminatory or bad faith exercise of judgment, or is an arbitrary (meaning wholly irrational, inexplicable, or unintentional) action that substantially injured an employee. See, e.g., Marino v. Writers Guild of Am., E., Inc., 992 F.2d 1480, 1486 (9th Cir. 1993).
We review de novo the question whether the union engaged in arbitrary conduct that substantially injured a member, and thus amounted to a breach of its duty of fair representation. Galindo, 793 F.2d at 1513 (citing United States v. McConney, 728 F.2d 1195, 1204 (9th Cir. 1984) (en banc))."
Although this is a title VII case, the standard for DFR remains the same. The "goal posts" that USAPA has to defend on the Continuum are Ministerial act as one post and Act of Judgement as the other post. There is NO WAY AOL will prevail.
I will agree with Bean only that this sore will fester and infect the APA that when APA negotiates a new CBA in 2019 there will be plenty of pilots to cross any picket line APA tries to erect.
