## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________
No. 08-2051

___________ Richard Hansen, *

* Plaintiff/Appellant, * * Appeal from the United States v. * District Court for the * District of Nebraska. Qwest Communications, Corporation; * Qwest Business Resources, Inc., *

* Defendants, *

* Communication Workers of America, * AFL/CIO, * * Defendant/Appellee. *

___________ Submitted: December 11, 2008 Filed: May 6, 2009

___________ Before WOLLMAN, BYE, and RILEY, Circuit Judges.

___________ RILEY, Circuit Judge.

Richard Hansen (Hansen) filed an action in federal district court alleging his union, Communication Workers of America, AFL/CIO (Union), breached its duty of fair representation by failing to provide Ha nsen with full back pay damages after an arbitrator determined there was no just cause for Hansen’s termination. The district1 The Honorable Laurie Smith Camp, United States District Judge for the District of Nebraska.

-2- court 1 determined the Union did not breach its duty of fair representation and granted the Union’s motion for summary judgment. Hansen appeals, and we affirm, substantially for the reasons given in the district court’s opinion.

I. BACKGROUND This case involves the interplay between two collective bargaining agreements. Hansen was employed by Qwest Business Resources, Inc. (Company) and was terminated in January of 2003 for allegedl y falsifying Company documents. At the time of his discharge, Hansen was a me mber of a bargaining unit covered by a collective bargaining agreement (BRI Agr eement), which was in effect from August of 1998 until August of 2003. The BRI Agr eement contained a three step grievance procedure which provided final, binding arb itration as the final step. Under the BRI Agreement, a favorable arbitration result could entitle the employee to full back pay damages.

The other bargaining agreement at issu e is the Qwest Corporation and Union Agreement (Qwest Agreement), which went into effect in August of 2003, after Hansen was discharged. As part of its grievance process, the Qwest Agreement provided an interim step of advisory, non-bi nding arbitration before a single arbitrator, also known as alternative dispute resolution (ADR). A favorable advisory ADR result under the Qwest Agreement would entitle an employee to a maximum of 18 months back pay. The Qwest Agreement provided either party the opportunity to submit the grievance to final and binding arbitration if dissatisfied with the result of the advisory ADR. Unlike the Qwest Agreement, the BRI Agreement in effect at the time of Hansen’s termination did not contain an advisory ADR mechanism.-3- The Union grieved Hansen’s discharge. The Company rejected the grievance at the first two steps, and the Union moved the grievance to the third step of the grievance procedure under th e BRI Agreement. Between the second and third steps of the grievance procedure, the Comp any and the Union e ngaged in settlement negotiations to resolve the grievance, w ith the Company offeri ng to settle for $5,000 with no reinstatement. Hansen rejected th e Company’s offer and, more than 19 months after his discharge, offered to settlefor $50,000 (one year’s wages) and no reinstatement. The Comp any rejected this offer.

After settlement negotiations failed, Union representative Mary Kay Pence (Pence) informed Hansen, based on her assessment of the merits of Hansen’s grievance, Pence did not believe the Uni on could prevail at arbitration. Hansen appealed Pence’s determination through the Un ion’s internal appeal process. Leroy Christensen (Christensen), an administrativ e assistant to Union Vice President John Thompson, reviewed the appeal and determined, while Hansen’s grievance would be difficult to win, it should be pursued.

Christensen approached Company repres entative Hugh Doherty (Doherty) about handling Hansen’s grievance through the advisory ADR process found in the Qwest Agreement, with the understanding that if either party did not accept the advisory ADR result, the parties could submit the matter to binding arbitration under the BRI Agreement. Christensen stated in an affi davit that he decided to pursue advisory ADR in Hansen’s case for a number of reasons, including: (1) binding arbitration can take many months, whereas the advisory ADR pr ocess was much more expeditious and
would allow Hansen to be reinstated much sooner; (2) if Hansen was dissatisfied with the result of the advisory ADR , he retained the option of pursuing full arbitration under the BRI Agreement; (3) the advisory ADR’s remedy of reinstatement and 18 months of back pay was worth more than Hansen’s pr evious offer to settle for one year of back pay and no reinstatement; and (4) based on Christensen’s experience with similar-4- grievances, Christensen did not believe the Company would settle for the amount Hansen was seeking.

On behalf of the Company, Doherty agreed to handle Hansen’s grievance through the Qwest Agreement’s advisory ADRprocess, and thereafter the grievance could be submitted to binding arbitration unde r the BRI Agreement. Christensen and Doherty testified they also agreed if Hansen prevailed at advisory ADR and both parties accepted the result, Hansen’s b ack pay would be limited to 18 months. When
Christensen called Hansen to tell him th e Union had granted his appeal and the grievance would be proceeding to ADR, Chri stensen neglected to inform Hansen of the 18-month back pay cap.

In January or February of 2005, Jay Boyle (Boyle) was hired to replace Pence as the Union representative for Nebras ka, and Boyle was a ssigned to Hansen’s grievance. Boyle was not informed Hans en’s back pay remedy was limited to 18 months if Hansen prevailed at ADR. Boyl e believed Hansen would be entitled to full back pay if he prevailed at ADR. Boyle contacted Hansen in May of 2005 and explained both sides would have the opportunity to present th eir case to an arbitrator, who would decide whether the Company had just cause to terminate Hansen. Boyle further explained, if both sides accepted th e arbitrator’s decision, it would become final, but if either party rejected it, the party could demand full arbitration.

The only issue at the ADR hearing was whether the Company had just cause to discharge Hansen. Hansen achieved a favorable result at the ADR hearing—the arbitrator found the Company did not have just cause to discharge Hansen. On October 12, 2005, the Company informed the Union it had decided to accept the ADR decision, and Hansen was reinstated on October 31, 2005. On November 2, 2005, Boyle learned Hansen’s back pay would be capped at 18 months. Boyle informed Hansen. Boyle thought the reason for the cap was because a ll employees who prevailed at ADR after the Qwest Agreement took effect were subject to such a cap. Boyle did not realize2 The district court granted summary judgment for the Company on Hansen’s claims against the Company, and Hansen has not appealed the summary judgment on those claims.

-5- until December of 2005 that the reason for th e back pay cap was because Christensen and Doherty had agreed to submit Hansen’s grievance to the Qwest Agreement’s ADR procedure, including the 18-month back pay cap.

On January 26, 2006, the Company offe red Hansen 18 months of back pay, which Hansen rejected. The Company agreed the Union c ould pursue the full back pay remedy under the BRI Agreement. Boyle wr ote Hansen a letter informing Hansen he had the option either to accept the 18 months of back pay and reinstatement, or proceed to final and binding arbitration. Boyle’ s letter warned Hansen, “the [binding] arbitration hearing offers substantial risks. Though the arbitrator could agree with the finding of the advisory arbitrator, there is an equal possibility that the arbitrator could deny the grievance resulting in you losing yourjob and any back pay you have already gained through this initial process.” Hansen refused to accept 18 months of back pay and also would not agree to binding arbitration under the BRI Agreement. Instead, he sued the Company 2 and the Union.

The district court granted summary judgment on Hansen’s claims against the Union, finding Hansen had not put forth evid ence to show the Uni on acted deceitfully, in bad faith, or dishonestly in negotia ting the advisory ADR process with the Company, and Christensen’s failure to in form Hansen of the back pay cap was a mistake which was, at most, negligence. Further, the court found Hansen was not prejudiced because he had the opportunity to reject the advisory ADR decision and proceed with full arbitration. On appeal , Hansen argues his rights are governed by the BRI Agreement because only that agreement was in e ffect at the time of his termination. Hansen also contends, b ecause the parties accepted the advisory ADR result, the parties are bound by the advisory ADR finding that there was no just cause
for his termination.-6- II. DISCUSSION
A. Standard of Review “We review a grant of summary judgment de novo, viewing the facts in the light most favorable to the nonmoving party. ” Schmidt v. City of Bella Villa , 557 F.3d 564, 571 (8th Cir. 2009) (citing Green v. City of St. Louis , 507 F.3d 662, 666 (8th Cir. 2007)). Summary judgment should only be gr anted where there is no genuine issue of material fact and the moving party is en titled to judgment as a matter of law. See id. ; Fed. R. Civ. P. 56(c).

B. The Union’s Duty of Fair Representation Hansen claims the Union breached its duty of fair representation by (1) using the Qwest Agreement’s advisory ADR mechanism, including the Qwest Agreement’s 18 month back pay cap, and (2) failing to inform Hansen of the 18-month back pay cap. To establish the Union breached its duty of fa ir representation, Hansen must show the Union’s conduct toward him was “arbitrary, di scriminatory, or in bad faith.” Vaca v. Sipes , 386 U.S. 171, 190 (1967) (citations omitted). “[A] union’s actions are arbitrary only if, in light of the factual and legal la ndscape at the time of the union’s action, the
union’s behavior is so far outsi de a wide range of reasonabl eness as to be irrational.” Air Line Pilots Ass’n, Int’l. v. O’Neill , 499 U.S. 65, 67 (1991) (internal quotation omitted). “Mere negligence, poor judgment, or ineptitude by a union is insufficient to establish a breach of the duty of fair representation.” Buford v. Runyon , 160 F.3d 1199, 1202 (8th Cir. 1998) (citation omitted).

“The doctrine of fair representation is an important check on the arbitrary exercise of union power, but it is a purpos efully limited check, for a ‘wide range of
reasonableness must be allowed a statutory bargaining representative in serving the unit it represents.’” United St eelworkers of Am. v. Rawson , 495 U.S. 362, 374 (1990) (quoting Ford Motor Co. v. Huffman , 345 U.S. 330, 338 (1953)). “Any substantive examination of a union’s performance, th erefore, must be highly deferential,-7- recognizing the wide latitude that negotiato rs need for the effective performance of their bargaining responsibilities.” Air Line Pilots , 499 U.S. at 78 (citations omitted).

1. Agreement to Submit Hansen’s Grievance to Advisory ADR Hansen argues the Union had no authority to modify his rights and remedies under the BRI Agreement by pursuing the inte rim step of advisory ADR. The duty of fair representation “may be violated wh en a union in bad faith or with dishonest purpose interferes with a rightconferred on an employee by his employer, fails to take a grievance to arbitration, or waives the provisions of a collective bargaining agreement intended to benefit an employ ee.” Emmanuel v. Omaha Carpenters Dist.
Council , 535 F.2d 420, 423 (8th Cir. 1976). Howe ver, a union does not act in bad faith or with dishonest purpose merely by agreeing to submit a grievance to non-binding arbitration instead of binding arbitration. SeeDanylchuk v. Des Moines Register &
Tribune Co. , 128 F.3d 653, 654 (8th Cir. 1997) (r easoning the union’s actions were not “arbitrary, discriminatory, or taken in ba d faith” when, as part of overall negotiations for a new collective bargaining agreement, “the union dropped efforts to submit [the grievant’s] case to binding arbitration, and consented to refer it instead to non-binding mediation”).

There is no evidence the Union acted “in bad faith or with dishonest purpose” in agreeing to submit Hansen’s grievan ce to advisory ADR. Christensen believed
Hansen’s case would be difficult to win. Thus, Christensen determined advisory ADR
would be more beneficial to Hansen than full arbitration because: (1) binding arbitration can take many months, whereas the advisory ADR process was much more expeditious and would allow Ha nsen to be reinstated much sooner; (2) if Hansen was dissatisfied with the result of the advisory ADR, he retained the option of pursuing full arbitration under the BRI Agreement; (3) th e ADR’s remedy of reinstatement and 18 months of back pay was worth more than Ha nsen’s previous offer to settle for one year of back pay; and (4) based on Christense n’s experience with similar grievances, Christensen did not believe the Company would settle for the amount Hansen was3 The BRI Agreement did not provide Hansen with a standalone “right” to full back pay. Instead, the BRI Agreement’ s full back pay remedy was dependent upon the grievant first prevailing at full arbitration.

-8- seeking. Hansen acknowle dges he has no basis for be lieving any agreement between Christensen and Doherty was motivated by discriminatory, deceitful, or dishonest
intent.

Further, Christensen did not waive or modify any of Hansen’s rights under the BRI Agreement by agreeing to submit Hansen ’s grievance to advisory ADR. The Qwest Agreement’s advisory ADR was an interim step, not a substitute for full arbitration under the BRI Agreement. Hansen retained the right to reject the advisory ADR result and submit the matter to binding arbitration with the possibility of full back pay as provided under the BRI Agreement. 3 In agreeing to pursue advisory ADR, Christensen simply obtained an additional h earing to which Hansen was not otherwise entitled under the BRI Agreement, and to wh ich Hansen now claims he would never have agreed. Boyle achieved a favorable fi nding for Hansen at that hearing. As a result of Christensen’s and Boyle’s efforts to resolve Hansen’s grievance, Hansen was immediately reinstated and the Company ultimately paid Hansen 18 months of back pay, a significantly higher sum than Hansen himself had offered to settle the grievance.
We fail to see how the Union’s decision to pursue advisory ADR could be considered “arbitrary, discriminatory, or in bad faith,” Vaca , 386 U.S. at 190, or even prejudicial
to Hansen.

2. Eighteen-Month Limitation on Back Pay Hansen contends a genuine issue of mate rial fact exists regarding whether the decision to submit Hansen’s grievance to advisory ADR under the Qwest Agreement also included a specific agreement to limit Hansen’s back pay to 18 months under the Qwest Agreement. Hansen argues a genuine issue of material fact exists because Boyle initially believed Hansen was entitled to full back pay, and when Boyle learned-9- of the 18-month limitation, Boyle surmis ed the reason for the limitation was “all members and [pending] grievances migrate[ d] to the Qwest/CWA agreement.” Hansen claims it would constitute arbitrary conduct if the Union simply lumped Hansen’s grievance with all other pending grievances under the Qwest Agreement. See Martin v. American Airlines, Inc. , 390 F.3d 601, 606 (8th Cir. 2004) (“[A]rbitrary decisionmaking as to the merits of an employee’s grievance may, in some circumstances, be shown where the union ignores the employee’ s complaint or processes the employee’s grievance in a perfunctory manner.” (citing Vaca , 386 U.S. at 194)).

Boyle’s initial unawareness of Christense n’s and Doherty’s agreement to limitHansen’s back pay to 18 months under the Qwest Agreement’s advisory and nonbinding ADR process is insufficient to create a genuine issue of material fact. The two negotiators of the agreement in Hansen’s case, Christense n and Doherty, both testified to the parameters of the agreement—Hans en’s grievance would be submitted to the advisory ADR process under the Qwest Agreem ent, but both parties retained the right to reject the advisory ADR decision and pr oceed to full arbitration. Boyle was not employed by the Union at the time Christ ensen and Doherty made the agreement regarding Hansen’s grievance. There is no evidence Christensen and Doherty agreed to the advisory ADR procedure in the QwestAgreement but did notagree to the back pay remedy limitations in the Qwest Agreemen t. No one testified Christensen and Doherty agreed to couple the Qwest Ag reement’s ADR procedure with the BRI Agreement’s full back pay remedy. Instead , Doherty declared he and Christensen specifically agreed to “follow all provisi ons of Section 16 of the Qwest Agreement, which included an 18 month back pay remedy limitation.”

Boyle’s later belief regarding the reas on for the 18-month back pay cap—that Hansen’s grievance migrated to the Qwest Agreement with all other pending grievances—is also insufficient to create a ge nuine issue of material fact. There is no evidence Hansen’s grievance was given cursory treatment by the Union or that Hansen’s grievance was arbitrarily swept along and lumped under the Qwest-10- Agreement with all other pending grievan ces. Doherty declared the agreement between himself and Christensen was “uniqueto the Hansen grievance,” and he knew of “no other pending grievance under the BRI Agreement [that] was submitted to the advisory ADR process or any other provisi on of Article 16 of the Qwest Agreement.” The written correspondence between Christense n and Doherty supports their testimony that there was a specific agreement in Hans en’s case to proceed under all the terms of Article 16 of the Qwest Agreement. We th erefore conclude there is no genuine issue of material fact as to (1) whether there was a specific agreement in Hansen’s case to follow the provisions of Section 16 of th e Qwest Agreement, including the 18 month back pay limitation; or (2) whether the Un ion gave Hansen’s grievance individualized consideration. Thus, there is no evid ence to support setting aside the Union’s agreement with the Company to limit back pay damages to 18 months as part of the advisory ADR process.

3. Failure to Inform Hansen of 18-Month Back Pay Limitation The parties agree the Union failed to in form Hansen of the 18-month back pay limitation until November 2, 2005, when Boyle first learned of the back pay cap. Hansen argues “the [U]nion had a duty to di sclose this [back pay limitation] to Hansen
so that he could make an informed deci sion to proceed or not to proceed through ADR.” Based upon the facts in this case, we do not agree.

It is the Union, not the individual employee, who decides how to proceed and whether to submit a grievan ce to arbitration. See Vaca , 386 U.S. at 191, 192 (reasoning unions have the “contractual pow er honestly and in good faith to settle grievances short of arbitration,” and “[i]f the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery provided by the contract would be substantially undermined”). Further, “while a union’s failure to notify a grievant may be negligent and in poor judgment, such an omission, without anything more, does not violate a union’s dut y of fair representation.” Demars v. General Dynamics Corp. , 779 F.2d 95, 98 (1st Cir. 1985) (citations omitted); see also-11- Buford , 160 F.3d at 1202 (“Mere negligence, poor judgment, or ineptitude by a union
is insufficient to establish a breach of the duty of fair representation.”).

In finding the Union’s conduct did not amount to a breach of the duty of fair representation, the district court reasoned:

I decline Hansen’s invitation to readanything more than negligence into Christensen’s failure to communicate to Hansen the back-p ay cap. In the exercise of due care, Christensen w ould have ensured that Hansen knew that an 18-month back-pay cap was in play, but the Court finds that his failure to do so is not legally sufficien t to show arbitrariness. There is no evidence in the record to suggest th at Christensen’s silence was anything other than a mistake.

We agree. Christensen’s conduct does not rise to the level of “arbitrary, discriminatory, or in bad faith” as require d to establish a breach of the duty of fair representation. While it woul d have been better for everyone involved if Christensen had mentioned the back pay cap and the r eason for the cap to both Hansen and Boyle, Christensen’s failure to do so was, at most, negligence.

Further, Hansen learned of the back pay cap within a few days of his reinstatement and was thereafter given th e opportunity to pursue binding arbitration, with the accompanying possibility of a full backpay remedy. Hansen chose not to risk losing what he had already gained—reinstate ment and 18 months of back pay—for the uncertainty of prevailing at binding arbitration and obtaining reinstatement and full back pay. Hansen was simply not entitled to couple the advisory ADR’s finding of no just cause with the BRI Agreement’s remedy of full back pay. This coupling would be inconsistent with both the Qwest Agreem ent and the BRI Agreement. We see no
evidence in the record that Hansen’s decision not to pursue binding arbitration was a result of bad faith, discrimination, or arbitrary conduct by the Union.-12- III. CONCLUSION We affirm the district court’s grant of summary judgment.

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