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No. 94-3737

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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. *

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 Submitted: September 13, 1995

 Filed: December 28, 1995 

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

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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 UPIU's duty of fair representation because an arbitrator dismissed

Beavers's wrongful discharge claim as untimely. The district court granted

summary judgment in favor of UPIU, and Beavers appeals. Concluding that

UPIU's summary judgment motion does not resolve a disputed issue of fact --

whether UPIU processed Beavers's grievance in an arbitrary manner -- we

reverse.

I.

In February 1992, UPIU and Georgia-Pacific Corporation entered into

a new collective bargaining agreement ("CBA") covering production and

maintenance employees at Georgia-Pacific's North
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Little Rock plant. Section XX of the CBA contained the following time

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 Steward

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 Plant

Manager . . . will meet within ten (10) days with the Union

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 on 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 the

Personnel Manager, who 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 May 6 and submitted the grievance

to arbitration on September 16, long after the ten-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, the

arbitrator explained that the time limits in a governing collective

bargaining agreement are controlling absent contrary prior practice; that

there was no prior practice under Section XX of the new CBA; that the Plant

Manager advised UPIU's president on March 11 that the grievance was denied;

that UPIU's May 6 arbitration vote demonstrated that it considered any

failure to meet with the Union Steward Committee "cured"; and 
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that UPIU's claim that it delayed four additional months before seeking

arbitration because it was waiting for Georgia-Pacific to commence

arbitration was without merit. The arbitrator concluded:

Union has offered no explanation for its more than six-month

delay in requesting an arbitration panel in this case. Absent

adequate explanation, the undersigned finds that the matter was

untimely when forwarded to arbitration. . . . [S]ince Union

clearly failed 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 of

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: 

Local 1741 maintained that the company failed and refused to

follow its past practices for processing grievances to

arbitration; specifically, there was no meeting to discuss and

try to resolve [Beavers's] grievance prior to requesting a

panel of arbitrators. My interpretation of the contract was

that until those meetings took place, requesting an arbitration

panel would have been premature. Furthermore, the company had

previously requested the panel only after such meetings with

the Union. An arbitration was conducted on [Beavers's]

grievance and [Beavers] fully participated in the hearing. The

arbitration award found the request for arbitration was

untimely under the terms of the collective bargaining

agreement. 

All my actions with respect to [Beavers] were impartial,

nondiscriminatory and were taken in good faith to protect his

interests to the best of my abilities as the Union's

representative. 

Based upon this affidavit, 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 timely manner, but the Court does not view that conduct as

unreasonable or arbitrary in light of the past practice and custom between

[UPIU] and Georgia-Pacific." 
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II.

Because a union enjoys the exclusive right to represent its members

in the collective bargaining process, the federal labor laws impose upon

the union a duty of fair representation "akin to the duty owed by other

fiduciaries 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

conduct 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 case, there is no claim that UPIU discriminated against

Beavers, and his conclusory assertion that UPIU acted in bad faith in

processing the grievance lacks the evidentiary support necessary to avoid

summary judgment. See 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 or

process[ed] it in perfunctory 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 "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."

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 collective-bargaining agreement, would not state a claim

for breach of the duty of fair representation." United Steelworkers of

America v. Rawson, 495 U.S. 362, 372-73 (1990); see NLRB v. American Postal

Workers Union, 618 F.2d 1249, 1255 (8th Cir. 1980). Because union

representatives are not lawyers, it would be inappropriate to hold them in

the grievance-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. 1986). Thus, we construe the

Supreme Court's reference in Vaca to the "perfunctory" processing of a

grievance to mean that "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 intended 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, 444

U.S. 826 (1979). In Ethier, a new union steward held informal discussions

with the employer and then filed a written grievance challenging

plaintiff's discharge. The grievance was one day 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 would be subject

to claims of unfair representation whenever a grievance was

ultimately found not to have been timely filed. . . . Certainly

this record does not support an inference that the Union

steward here was unconcerned, unsolicitous, or indifferent. To

the contrary, he pursued the grievance with vigor and erred

only in failing to anticipate how the Agreement would

ultimately be construed by an arbitrator. 

590 F.2d at 736. Thus, if UPIU had missed the ten-day deadline for

submitting Beavers's grievance to arbitration because it misconstrued the

CBA as first requiring a meeting between the Plant Manager and the Union

Steward Committee, or because it believed Georgia-Pacific would commence

the arbitration, such a mistake would not constitute arbitrary or

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 Beavers'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

grievance. As the arbitrator noted, the CBA clearly required that the

grievance be referred to arbitration within ten days after receipt of the

Plant Manager's ruling, and UPIU's six month delay cannot be explained away

on the basis of past practice because there was no prior practice with

Georgia-Pacific under the new CBA. Moreover, there is no evidence UPIU

ever contacted Georgia-Pacific to clarify any uncertainty about how Section

XX's rigorous new time limits should be implemented. 

Viewing the record in the light most favorable to Beavers, as we

must, we conclude that a rational factfinder could find that "the union

acted without concern or solicitude, or gave [Beavers's] claim only cursory

attention." Therefore, Beavers's claim of breach of the duty of fair

representation raises a genuine issue of material fact precluding summary

judgment in favor of UPIU. Of course, even if Beavers proves that UPIU

breached its duty of fair representation, "damages attributable solely to

the employer'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 distress

damages 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);

Richardson v. Communications Workers of America, 443 F.2d 974, 982 (8th

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 is

remanded for further proceedings consistent with this opinion.

A true copy.

Attest:

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