The Honorable H. Franklin Waters, United States District Judge for the Western 1

District of Arkansas. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-2022

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Avery Allen Baxter, *

 *

Appellant, *

 *

v. * Appeal from the United States

 * District Court for the

United Paperworkers International * Western District of Arkansas.

Union, Local 7370; United *

Paperworkers International Union; *

Whirlpool Corporation, *

 *

Appellees. *

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 Submitted: January 7, 1998

 Filed: March 26, 1998

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Before McMILLIAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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MORRIS SHEPPARD ARNOLD, Circuit Judge.

Avery Allen Baxter appeals from the district court&s adverse grant of summary 1

judgment to his employer, Whirlpool Corporation (Whirlpool), and to the United

Paperworkers International Union and its Local 7370 (referred to collectively as UPI)
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in his action for unfair representation and breach of the collective bargaining agreement

(CBA). We affirm the judgment of the district court.

In February 1994, Baxter was discharged by Whirlpool for allegedly providing

an undercover agent with marijuana on Whirlpool&s parking lot. Baxter, an hourly

employee, was represented by UPI. The CBA between UPI and Whirlpool included

a grievance procedure, and UPI took Baxter&s grievance to arbitration, choosing Archie

Robbins to represent him.

In May 1994, Baxter was acquitted on a criminal charge arising out of the

alleged marijuana incident. Willard Crane Smith, who represented him in the criminal

matter, requested subpoenas from the arbitrator for Baxter&s December 1994 arbitration

hearing, but neither Smith nor Baxter notified UPI of the subpoenas. When the hearing

began, Robbins asked that Smith be excluded. The arbitrator, who was from Florida,

denied the request, citing the Florida “Sunshine law”; he reserved ruling on whether he

would permit Smith to present evidence after UPI and Whirlpool presented their cases.

After Whirlpool&s attorney and Robbins conferred outside the room, Whirlpool&s

attorney indicated that he and Robbins had “de-selected” the arbitrator and would

choose another arbitrator in accordance with the CBA (under which the parties were

to select the arbitrator), and the hearing ended. 

UPI and Whirlpool chose another arbitrator, and the hearing was rescheduled for

February 1995. UPI wrote to Baxter, encouraging him to participate in the hearing and

notifying him UPI considered the arbitration to be between the parties to the CBA (i.e.,

UPI and Whirlpool) and intended to exclude Baxter&s personal attorney from the

arbitration hearing. No personal attorney appeared at the February hearing. Several

months after the hearing, the arbitrator issued a decision finding Baxter gave one

marijuana cigarette to the undercover agent, but decreasing Baxter’s penalty from

discharge to a suspension from the date of his discharge until the date of reinstatement.
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Baxter then brought this action, claiming unfair representation by UPI and breach

of the CBA by Whirlpool. The district court granted UPI&s summary judgment motion,

finding Baxter failed to present sufficient evidence that UPI breached its duty of fair

representation. The court also granted Whirlpool&s summary judgment motion because

a breach of UPI&s fair-representation duty was a prerequisite to Baxter&s claim against

Whirlpool. This appeal ensued.

“A union breaches its duty of fair representation when its conduct is #arbitrary,

discriminatory, or in bad faith.&” See Washington v. Service Employees Int&l Union,

Local 50, 130 F.3d 825, 826 (8th Cir. 1997) (quoted case omitted). Baxter argues that

UPI acted arbitrarily and in bad faith when it agreed with Whirlpool to exclude Smith

and to disqualify the original arbitrator. To prove arbitrariness, Baxter needed to show

UPI&s conduct was irrational. See id. To prove bad faith, Baxter needed to establish

the existence of fraud, deceitful action, or dishonest conduct. See id. We agree with

the district court that Baxter proved neither.

The question of whether a union may exclude a grievant&s personal attorney from

an arbitration hearing is an issue of first impression in this circuit. Under the

circumstances here--i.e., Baxter&s criminal case had been resolved, he failed to show

other employees were treated differently, his attorney had subpoenaed witnesses

without notifying UPI, and there was no evidence of a specific need for Smith&s

presence--we conclude that such exclusion did not constitute a breach of UPI’s duty

of fair representation. See Garcia v. Zenith Elec. Corp., 58 F.3d 1171, 1179-80 (7th

Cir. 1995) (noting that in “unique context of labor relations,” union&s decision “to

disallow the presence of an independently-retained attorney in a particular case is not,

standing alone, enough to show that the union acted arbitrarily”); Castelli v. Douglas

Aircraft Co., 752 F.2d 1480, 1483-84 (9th Cir. 1985) (“no court has adopted the rule

that employees are entitled to independently retained counsel in arbitration proceedings

or that the exclusion of such attorneys from arbitration violates the duty of fair

representation”; participation of employee&s counsel could “bypass the union and
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undermine the policy of exclusive representation”); cf. Seymour v. Olin Corp., 666

F.2d 202, 209-10 & n.5 (5th Cir. 1982) (holding union&s failure to pursue grievance,

because grievant would not discharge his attorney, was arbitrary and breach of fairrepresentation duty; noting union may limit participation of private counsel in grievance

proceedings, but leaving for “another day” question--which potential for criminal

proceedings complicates--whether union “may prohibit the mere presence of private

counsel”).

We also conclude the evidence did not show that UPI’s agreement with

Whirlpool to decertify the arbitrator they had chosen together under the CBA was

discriminatory, irrational, fraudulent, or dishonest. Insofar as Baxter argues that he was

harmed by the arbitrator&s disqualification and the resulting delay, we refuse to

speculate that the original arbitrator would have ruled in Baxter&s favor and more

quickly. 

Because we conclude UPI was entitled to summary judgment on the fairrepresentation claim, summary judgment for Whirlpool on the claim for breach of the

CBA was also proper. See Smith v. United Parcel Serv., Inc., 96 F.3d 1066, 1069 (8th

Cir. 1996). We reject as meritless the remainder of Baxter’s arguments. 

Accordingly, we affirm.

A true copy.

Attest:

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