## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1322

___________ William R. Danylchuk, Jr., * * Appellant, * * On Appeal from the United v. * States District Court for * the Southern District of * Iowa. Des Moines Register & Tribune Co., * * Appellee. *

___________ Submitted: September 8, 1997 Filed: October 21, 1997

___________ Before RICHARD S. ARNOL D, Chief Judge, HEANEY and BEAM, Circuit Judges.

___________ RICHARD S. ARNOLD, Chief Judge.
This is an action for breach of a collective-bargaining agreement under §301 of the L abor Management Relations Act, 29 U.S.C. §185 (1994). The plaintiff, William L. D anylchuk, Jr., alleges that the defendant, Des Moines Register & Tribune Co. , discharged him without good cause and is violating th e agreement by refusing to submit the matter to binding arbitration. The company’s defense turns on the fac t that the union representing the bargaining unit of which Danylchuk was a member, Des Moine s Mailers Union Local 358, has chosen not to pursue the arbi tration remedy. The DistrictThe Hon. Ronald E. Longstaff, United States Di strict Judge for the Southern District 1 of Iowa. -2- Court held that the union, in choosing not to pursue the arbitration, h ad violated no duty 1
owe d to Danylchuk, and therefore granted the employer’s motion for summary judgmen t. (The union itself, originally sued as an additional defendant, had earlie r settled with the plaintiff.)

The key question presented has to do with the union’s conduct. Was the union in breach of i ts duty of fair representation? To show such a breach, plaintiff mus t demonstrate that the union has acted in an arbitrary or discriminatory manner, or in bad faith. See Vaca v. Sipes , 386 U.S. 171, 186 (1967); Smith v. United Parcel Service , Inc. , 96 F. 3d 1066, 1068 (8th Cir. 1996). Moreover, the employer, in addition t o asserting that the union’s conduct was not to blame under thi s stringent standard, claims that no agreement to arbitrate existed in any event, the collective-bargaining agreement between it and the union having expired.
In brief, the relevant facts are these. There was an agreement between the union and the company including an arbitration clause. The agreeme nt expired on February 3, 199 4, but one of its provisions stated that “the terms and conditions of the expire d Agreementsh all be maintained until a new Agreement is reached or other action i s authorized by the . . . Union or by the Company.” After the agreement expired, th e union took the position that the arbitration process, together with the other terms an d conditions of the agreement, survived. The company took the position that it did not, on the ground, among others, that it, the company, had taken “o ther action” to terminate the agreemen t to arbitrate. We need not resolve this dispute in order to decide th e present case . It is sufficient to note that the dispute existed, with the union and th e company taking opposite sides.
On January 5, 1995, Danylchuk w as fired from his job as a mailroom employee. The company claimed that he had failed to report for work twice within one year, in-3-

violation of mailroom office rules. Danylchuk asserted that his failure toreport for work was not voluntary and should be excused on account of illness. Representatives of the company and the union adjusted the grievance through steps 1 and 2 of the grievance procedu re set forth in the expired Agreement. Thereafter, the company refused t o submitthe grievance to a board of arbitration. For a time, the union insisted that th e arbitration clause had survived the expiration of the agreement, and that the company had to abid e by it, but, in the course of negotiations with the company for a ne w coll ective-bargaining agreement, the union ultimately abandoned its position. As part of these negotiations, and in order to secure a new agreement, the union dropped efforts to submit Danylchuk’s case to binding arbitration, and consented to refer it instead to non-binding mediation. Danylchuk then brought this action , claiming that the union had abandoned him in breach of its duty of fair representation.
We affirm the judgment of the District Court, substantially for the reasons given in that court’s opinion. William R. Danylchuk, Jr., v. Des Moines Register & Tribune Co ., Civil No. 4-95-CV-10355 (S.D. Iowa, December 17, 1996). Danylchuk concedes that the union was not motivated by any animus against him. Brief for Appellant 17. The union s imply decided that the welfare of its membership as a whole would b e suffici ently advanced by the conclusion of a new collective-bargaining agreement t o justify its change of position with respect to Danylchuk’s personal situation. Th e union , of course, has to represent all employees in the bargaining unit. Whethe r Danylchuk’s cause would ultimately have been upheld by the arb itrators was unknown. Whe ther the union’s position that the company was obligated to arbitrate woul d ultimately prevail was also unknow n. The company was interested in disposing of the Dan ylchuk

matter as part of the over-all settlement. The union was willing, havin g balanced all the releva

nt considerations, to make this concession. We cannot say that this choice was arbitrary, discriminatory, or taken in bad faith. There is no evidence th atany of those things occurred. The result, we recognize, was not favorable t o Danylchuk

as an individual, but a fiduciary who has to balance the interests of many beneficiaries will often have to make such a choice. We hold that no breach of duty-4-

on the par t of the union has been demonstrated, that there is no genuine issue o f material fact, and that the company was entitled to judgment as a matter of law.

Affirmed.
HEANEY, Circuit Judge, dissenting.
I respectfully dissent. The district court granted summary judgment in favor of the Des Moines Register & Tribune Co. Thus, we must assume for the purpose of this opinion that

the facts alleged by Danylchuk are correct. Of significance for summary judgme nt is the company’s ultimatum that, unless the union agreed to withdraw it s claim that th e Danylchuk grievance be arbitrated, the company would not enter into a
new collective bargaining agreement. The union complied with this request b y withdr awing its demand for arbitration and agreeing that the Danylchuk grievanc e would be submitte d to nonbinding mediation. The likely result of this action was that Dan ylchuk

could prevail only if the company agreed to a resolution of the grievanc e satisfac tory to Danylchuk, an unlikely event in view of its posture during the relevant time period.

The company o ffers as a defense that the union had the right to abandon th e Danylchuk grievance for the greater good of the union members. I do not believe that the unio n had the right to sacrifice a union member with a meritorious grievance i n order to secure a new collective bargainin g agreement with the company. Under these circumstances, the union’s responsibility was to file an unfair labor prac tice charge with the Nation al Labor Relations Board alleging that the company refused to bargain i n goo d faith. When an employer conditions signing a new collective bargainin g agreement on the union abandoning a grievance or lawsuit, the employer commits an unfair labor practice by violating section 8(a)(5) of the Labor Management Relations Act, 29 U.S.C. § 158(a)(5). See Plattdeutchse Park Restaurant, Inc. , 296 N.L.R.B

. 133, 137-38 (1989); Inner City Broad. Corp. , 270 N.L.R.B. 1230, 1233-34 (1984);-5-

Good G.M.C., Inc. , 267 N.L.R.B. 583, 584 (1983); Laredo Pac king Co. , 254 N.L.R.B. 1, 19 (1981); Nordstrom, Inc. , 229 N.L.R.B. 601, 601 (1977). Therefore, by insisting that the union waive the Danylchuk grievance as a condition of signin g a new collective bargaining agreement, the company engaged in an unfair labor practice.

I have no quarrel with the holdings of Vacaand Smith , the cases cited by th e majority. In neither case, however, did the union agree to waive arbitration of what it
con sidered to be a meritorious grievance for the purpose of entering into a ne w agreement. It may well be that if this case were remanded, as I think it should be, the district court would find that the compa ny did not issue an ultimatum, but that the union acted to facilitate negotiations. If so, Danylchuk would not have a ca use of action against the company. Here, however, we must take the facts in the light most favorable t o Danylchuk. In t

hat light, the company issued an ultimatum that unless the Danylchuk grievance was withdrawn, there would be no collective bargaining agreement.

A union representing members with conflicting interests acts properly when i t proce eds in good faith and on the basis of reasoned, informed judgment. Beardsly v. Chic ago & North Western Transp. Co. , 850 F.2d 1255, 1266-68 (8th Cir. 1988) ; Thomas v. Bakery, Confectionary & Tobacco Workers Union Local No. 433 , 826 F.2d 755, 760 (8th Cir. 1987) (citation omitted); Automotive, Petroleum & Allied Indus

. Employee s Union, Local 618 v. Gelco Corp. , 758 F.2d 1272, 1276 (8th Cir. 1985 ) (citation omitted). Certainly, then, a union has the right to balance the interests o f comp eting groups of employees within the union and enter into an agreement that i t beli eves benefits the whole. In my view, however, a union does not have the right to waive arbitration

of a meritorious grievance with respect to whether an employee had been unlawfully discharged by the company unless there is evidence that th e employee’s grievance was of doubtful merit. I would remand to the district court with instructions to hold a hearing to determine whether the company in fact issued an-6-

ultimatum to the union

or whether the union abandoned Danylchuk’s grievance for no good reason.
A true copy.

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