___________ No. 94-3737

___________ Ira Beavers, * * Plaintiff - Appellant, * * v. * Appeal from the United States * District Court for the United Paperworkers * Eastern District of Arkansas. International Union, * Local 1741, * * Defendant - Appellee. *

___________ Submitted: September 13, 1995 Filed: December 28, 1995

___________ Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ LOKEN, Circuit Judge.
This is an action by Ira Beavers against his former union, the United Paperworkers International Union, Local 1741 ("UPIU"), alleging a breach of UPI U's duty of fair representation because an arbitrator dismisse d Beavers's wrongful discharge claim as untimely. The district court grante d summaryjudgment in favor of UPIU, and Beavers appeals. Concluding that UPIU's summary judgment motion does not resolve a disputed issue of fact -

- whe ther UPIU processed Beavers's grievance in an arbitrary manner -- w e reverse.

I.

In Februa ry 1992, UPIU and Georgia-Pacific Corporation entered into
a new c ollective bargaining agreement ("CBA") covering production an d maintenance employees at Georgia-Pacific's North

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Little Rock plant. Section XX of the CBA contained the following tim e limits for processing grievances to arbitration:

1. A written grievance must be presented to Georgia-Pacific's Personnel Manager within five days. 2. "[T]he Personnel Manager will meet with the Union Stewar d Committee within five (5 ) days . . . [and] will give a written answer within five (5) days of the meeting." 3. The grievance may be appealed to the Plant Manager "within five ( 5) days of receipt of the above answer. The Plan t Manager
. . . will meet within ten (10) days with the Unio n Steward Committee . . . and will answer within five (5) days." 4. If the Union is not satisfied, it may refer the grievance to arbitration "within ten (10) days after receipt of the [Plant Manager's] answer."
Georgia-Pacific discharged Beavers o n March 9, 1992, giving "[f]alse testimony during the investigation of a 'Sexual Harassment Charge'" as the
reason for his discharge. On March 10, UPIU filed a grievance with th e Personnel Manager, wh o immediately denied it. On March 11, UPIU appealed to the Plant Manager. Without meeting with the Union Steward Committee, the Plant Manager denied the grievance that same day.

UPIU held an "arbitration vote" on M ay 6 and submitted the grievance to arbitration on September 16, long after the t en-day period specified in Section XX of the new CBA. Following a hearing, the arbitrator denied the grievance "as untimely and non-arbitrable." In a lengthy opinion, th e arbitr ator explained that the time limits in a governing collectiv e bargaining agreement are controlling absent contrary prior practice; that there was no prior practice under Section XX of the new CBA; that the Plan t Manager advised UPIU's president on March 11 that the grievance was denied ; that UPIU's May 6 arbitration vote demonstrated that it considered an y failure to meet with the Union Steward Committee "cured"; and

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tha t UPIU's claim that it delayed four additional months before seekin g arbitration because it was waiting for Georgia-Pacific to commenc e arbitration was without merit. The arbitrator concluded:

Uni on has offered no explanation for its more than six-mont h delay in requesting an a rbitration panel in this case. Absent adequate explanation, the undersigned finds that th e matter was unt imelywhen forwarded to arbitration. . . . [S]ince Unio n cl earlyfailed to adhere to [the time limits in the CBA], I find that I am without authority or jurisdiction to rule on the grievance.

Beavers then commenced this action, seeking damages for breach o f UPIU's duty of fair representation. UPIU moved for summary judgment , submitting in support a two-page affidavit of its president, Larry King. Mr. King averred:

Loc al 1741 maintained that the company failed and refused t o fol low its past practices for processing grievances t o arbitration; specificall y, there was no meeting to discuss and try to resolve [Beavers's] grievance prior to requesting a pan el of arbitrators. My interpretation of the contract wa s that until those meetings took place, requesting anarbitration panel would have been pr emature. Furthermore, the company had previo uslyrequested the panel only after such meetings wit h the U nion. An arbitration was conducted on [Beavers's ] grievance and [Beavers] fully participated in the h earing. The arbi tration award found the request for arbitration wa s un timelyunder the terms of the collective bargainin g agreement. Al l my actions with respect to [Beavers] were impartial , nondiscriminatoryand were taken in good faith to protect his int erests to the best of my abilities as the Union' s representative.
Based upon this affid avit, the district court granted summary judgment in favor of UPIU because "[t]he Court is convinced that [UPIU] was guilty of negligence and ineptitude in failing to file the request for arbitration in a time ly manner, but the Court does not view that conduct a s unreasonable or arbitrary in light of the past p ractice and custom between [UPIU] and Georgia-Pacific."

### -4- II.

Because a union enjoys the exclusive right to represent its members in the collective bargaining process, the federal labor laws impose upon the uni on a duty of fair representation "akin to the duty owed by othe r fiducia ries to their beneficiaries." Air Line Pilots Ass'n, Int'l v
. O'Neill , 499 U.S. 65, 75 (1991). This duty is breached "when a union' s con duct toward a member of the collective bargaining unit is arbitrary , discriminatory, or in bad faith." Vaca v. Sipes , 386 U.S. 171, 190 (1967)
.

In this c ase, there is no claim that UPIU discriminated agains t Beavers, a nd his conclusory assertion that UPIU acted in bad faith i n processing the grieva nce lacks the evidentiary support necessary to avoid summary judgment. Se e Schmidt v. Int'l Bhd. of Elec. Workers, Local 949 , 980 F.2d 1167, 1170 ( 8th Cir. 1992) (claim of bad faith requires proof of "fraud, deceitful action or dishonest conduct by the union"). Thus, the issue is whether UPIU "arbitrarily ignore[d] a meritorious grievance o r process[ed] it in per functory fashion." Vaca , 386 U.S. at 191, quoted in Int'l Bhd. of Elec. Workers v. Foust , 442 U.S. 42, 47 (1979).
A union's conduct is arbitrary if "i n light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outs ide a `wide range of reasonableness' as to be irrational. " O'Neill , 499 U.S. at 67, quoting Ford Motor Co. v. Huffman , 345 U.S. 330 (1953). As the district court recognized, "mere negligence, even in the enforcement of a coll ective-bargaining agreement, would not state a claim for breach of the duty of fair representation." United Steelworkers o f America v. Rawson , 495 U.S. 362, 372-73 (1990); see NLRB v. American Posta l Wor kers Union , 618 F.2d 1249, 1255 (8th Cir. 1980). Because unio n representatives are not lawyers, it would be ina ppropriate to hold them in the gr ievance-arbitration process to "the demanding tests applied to a trained trial lawyer." Stevens v. Highway, City & Air

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Freight Drivers , 794 F.2d 376, 378 (8th Cir. 198 6). Thus, we construe the Supreme Court's reference in Vaca to the "perfunctory" processing of a grievance to mean tha t "the union acted without concern or solicitude, or gave a claim only cursory attention." Curtis v. United Transp. Union , 700 F.2d 457, 458 (8th Cir. 1983). UPIU inte nded to arbitrate Beavers's grievance, but the arbitration was dismissed as untimely. This same situation was presented in Ethier v. United States Postal Serv. , 590 F.2d 733, 736 (8th Cir.), cert. denied , 44 4 U.S. 826 (1979). In Ethier , a new union stewardheld informal discussions with t he employer and then filed a written grievance challengin g plaintiff's discharge. The grievance was one da y late, and the arbitrator dismissed it as non-arbitrable. We affirmed the grant of summary judgment in favor of the union, concluding:
If Ethier's point of view were adopted, Unions woul d be subject to claims of unfair representation whenever a grievance wa s ultimately found not to have been timely filed. . . . Certainly thi s record does not support an inference that the Unio n steward here was unconcerned, unsolicitous, or indi fferent. To the contrary, he pursued the grievance with vigor and erre d onl yin failing to anticipate how the Agreement woul d ultimately be construed by an arbitrator.

590 F.2d at 736. Thus, if UPIU had missed the ten-day deadline fo r submitting Beavers's grievance to arbitration because it misconstrued the CBAas first requiring a meeting between the Plant Manager and the Union Steward Committee, or because it believed Georgia-Pacific would commence the ar bitration, such a mistake would not constitute arbitrary o r perfunctory conduct.
However, the record before us is far more ambiguous. Here, UPIU did not just miss a ten-day deadline. It did nothing for nearly two months. It then submitted Bea vers's grievance to a vote of the union members, but it did not submit the grievance to

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arbitration for more than four months after the members voted to press the griev ance. As the arbitrator noted, the CBA clearly required that th e grievance be referredto arbitration within ten days after receipt of the Plant Manager's ruling, and UPIU's six month delay cannot be explained awa y on the basis of past practice because there was no prior practice wit h Georgia-Pacific under the new CBA. Moreover, there is no evidence UPI U ever contacted Georgia-Pacific to clarify any uncertainty about how Sectio n XX's rigorous new time limits should be implemented.

Viewin g the record in the light most favorable to Beavers, as w e must, we conclude that a rational factfinder could find that "the unio n acted without concern or solicitude, or gave [Beavers's] claim only cursor y attention. " Therefore, Beavers's claim of breach of the duty of fai r representation raises a genuine issue of material fact precluding summary judgmen t in favor of UPIU. Of course, even if Beavers proves that UPI U breached its duty of fair representation, "damages attributable solely to the e mployer's breach of contract should not be charged to the union. " Vaca , 386 U.S. at 197. Moreover, for this type of alleged breach of duty , Beavers's claims for punitive damages and for mental and emotional distres s dam ages are precluded. See Foust , 442 U.S. at 52 (1979); Anderson v
. United Paperworkers Int'l Union , 641 F.2d 574, 581 n.9 (8th Cir. 1981) ; Ric hardson v. Communications Workers of America , 443 F.2d 974, 982 (8t h Cir. 1971). Accord Cantrell v. Int'l Bhd. of Elec. Workers, Local 2021 , 32 F.3d 465, 468-69 (10th Cir. 1994).

The judgment of the district court is reversed, and the case i s remanded for further proceedings consistent with this opinion.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.