## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 09-3491

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Aaron Gaston; Earl Rudy; Joe Ahlvers; * William Wehmeyer; Robert Patton; * Richard Pickering; Joseph Palozzola; * Stanley Songer; Jeffrey C. Elliott; John * Haas; Mark Kammer; Michael * Williams; Deborah Rehm; James T. * Miller; Phillip Hite; James Bean; * Robert Cagle; Wanda Hite; William * Dunphy; Oliver Dowden; Dean Riefle; * Keith Ringkamp; Kenny Gravot; Aaron * Epps; Jarrod Brazzill; Mark Johnson; * Appeal from the United States Richard Tracy; Patricia Sutton; Anne * District Court for the Chandler; Steven Rakey; Paul Martin ; * Eastern District of Missouri. Gary Sutton; Wayne Stallings; Terri * Roedel; Richard J. Diggs; Merlyn Hill; * Ledee Deele; Roger Nash; Brennade * Harold; Audrey Phifer; Rodney * Bowden; Darren Streater; Mark Dixon; * Chris Bunch; Chester Johnson; George * Schuetz; Timothy Howard; Allan * Courtney; Richard Tolin; Walter * Mason; Clarence Jones; Ava Carr; * Gerard Winkler; Michael Fink; Richard * Carr; Raymond Gurley, Jr.; Jamie * Borden; David White; Donald Halbert; * Frederick Ivy; Arthur Woolfolk; * Michael Edwards; Rubin Draine, *

* Plaintiffs - Appellants, *

* v. *1 The Honorable Catherine D. Perry, Chief Judge, United States District Court for the Eastern District of Missouri.

-2- * Teamsters Local 600, International * Brotherhood of Teamsters, Chauffeurs, * Warehousemen and Helpers of * America; A.B.C. Dairy Company, a * Missouri corporation, doing business as * Pevely Dairy Company; Prairie Farms, * Inc., an Illinois corporation; Scott * Gilchrist, *

* Defendants - Appellees. *

___________ Submitted: June 16, 2010 Filed: August 2, 2010

___________ Before MURPHY, BEAM, and BENTON, Circuit Judges.

___________ MURPHY, Circuit Judge.

Former workers at the Pevely Dairy sued their employer and its owner (collectively Prairie Farms) and their union, Local 600 of the International Brotherhood of Teamsters (Lo cal 600), and its business agent Scott Gilchrist. The employees allege that Prairie Farms breached their coll ective bargaining agreement (CBA), that Local 600 breached its duty of fair representation under the Labor Management Relations Act (LMRA), and th at Gilchrist breached his fiduciary duty under the Labor Management Reporting and Disclosure Ac t (LMRDA). The district

court 1 granted summary judgment to Prairie Farms, Local 600, and Gilchrist. The former Pevely employees appeal. We affirm.2 Prairie Farms owns A.B.C. Dairy, d/b/a Pevely Dairy Company.

-3- Prairie Farms 2owned and operated Pe vely Dairy in St. Louis, Missouri, until it closed on October 31, 2008. On its closur e Prairie Farms transferred some of the Pevely employees to Mid-States Dairy which it had purchased in June 2007. Employees of both plants are represented by Local 600 and Gilchrist. Gilchrist’s duties include negotiating withPrairie Farms on behalf of both Pevely and Mid-States employees.

Employment at Pevely Dairy was governed by the same CBA under which Mid-States employees still wo rk: the Central States Mast er Dairy Agreement (MDA). The MDA is a multi union, multi employer agreement which governs approximately fifty plants in the Midwest. Each of thes e plants also has a local addendum negotiated by the employer and the local union for th e particular business operation. The agreement between Local 600 and Pevely Dairy governs only Pevely employees, and we refer to it as the Pevely Addendum.

Two sections of the MDA have special importance for the issues before the court. Section 10.4 of the MDA governs employee transfers upon plant closures. It provides that "employees may exercise their right to tran sfer in accordance with their seniority, but shall go to the bottom of the se niority list at the new location." Section 21.1 determines the effect of conflicti ng local addenda. It provides in part:

The provisions of this Master Agr eement shall take precedence over any conflicting or inconsistent provisi on of any Addendum and the parties shall not be bound by any provisions in an Addendum dealing with a subject dealt with in this Master Agreement. . .

The Pevely Addendum was set to expi re in July of 2007 and was undergoing renegotiation when Prairie Farms announced that the Pevely Dairy would close in 2008 and that some of its employees would be transferred to Mid-States Dairy. The-4- Pevely Addendum to the MDA was at th at point silent on seniority rights of transferred employees. Under § 10.4 of the MDA, however, the transferred Pevely employees were to be placed at the bottom of the Mid-Stat es seniority list, a process known as "endtailing." The employees assigne d for transfer wanted to preserve the seniority they had had at Pe vely Dairy instead and hoped to be slotted into the MidStates seniority list, a process known as "dovetailing."

Appellant Aaron Gaston, who was also on the bargaining committee, asked Gilchrist if dovetailed seniority could beachieved by negotiati ng it into the Pevely Addendum. Appellants claim that Gilchrist told them that it could not be done, but he says that he explained to them th at any dovetailing provisi on would be rendered ineffective by § 21.1 of the MDA and th at Prairie Farms would not agree to dovetailing because it had already announced it would endtail the transferees. The parties agree that a union representative spoke with Prairie Farms about dovetailing, but disagree as to whether it occurred during a formal bargaining session.

Before their transfer to Mid-States, se veral Pevely employees filed grievances seeking to be dovetailed into the Mid-States seniority list upon their transfer. Prairie Farms denied the grievances and the dispute proceeded to a hearing by the joint areas committee (JAC), the dispute resolution body provided by the MDA. The JAC denied the grievances. Prairie Farms then submitted an offer to Local 600 for a renewed Pevely Addendum without a dovetailing provision. Lo cal 600 accepted the offer in December 2007. When the Pevely plant was closed in October 2008, the transferred employees were endtailed into the Mid-States seniority list.

After exhausting their administrative remedies, former Pevely employees commenced this action in district court in Decembe r 2008. They a lleged breach of fair representation by Local 600 under the LMRA, 29 U.S.C. §151 et seq. , and breach of fiduciary duty by Gilchrist under the LMRDA, 29 U.S.C. §501 et seq

.-5- The district court granted summary judgm ent to all defendants, concluding that the MDA could not be modified by any dovetailing addendum for Pevely employees and that Prairie Farms had not violated the MDA. The employees appeal only the summary judgment in favor of Local 600 and Gilchrist.

We review de novo a district court’s gr ant of summary judgment, viewing all facts and making all reasonable inferences in the light most favorable to the nonmoving party. Med. Liab. Mut. Ins. Co. v. Alan Curtis LLC , 519 F.3d 466, 471 (8th Cir. 2008). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.

Appellants first claim that Local 600, as represented by Gilchrist, breached its duty of fair representation under the LMRA. 29 U.S.C. § 151 et seq . A union has exclusive bargaining rights under a CBA, and federal law places a duty on it to represent fairly all the workers covered by su ch an agreement. Sanders v. Youthcraft Coats & Suits, Inc. , 700 F.2d 1226, 1229 (8th Cir. 1983). The duty of fair representation is breached if the union’s c onduct is "arbitrary, discriminatory, or in bad faith." Smith v. United Parcel Serv., Inc. , 96 F.3d 1066, 1068 (8th Cir. 1996) (citing Vaca v. Sipes , 386 U.S. 171, 190 (1967)).

Mere negligence, poor judgment or in eptitude on the part of the union is insufficient to establish a breach of the duty of fair representation. Id. For a union’s conduct to be arbitrary it must be "so far outside a 'wide range of reasonableness' as to be irrational." Washington v. Serv. Employees Int’l Union Local 50 , 130 F.3d 825, 826 (8th Cir. 1997) (citing Smith v. United Parcel Serv., Inc. , 96 F.3d 1066, 1068 (8th Cir. 1996)). A showing of bad faith requires proof of "fraud, deceitful action, or dishonest conduct." Id. Unions are afforded consider able deference in executing their duty of fair representation. Air Line Pilots Ass’n Int’l v. O’Neill , 499 U.S. 65, 78 (1991).-6- Appellants also claim that Gilchrist br eached his fiduciary duty. The LMRDA provides that union representatives must refrain from acting adversely to the union and from "holding or acquiring any personal in terests" conflicting with its interests. 29 U.S.C. § 501(a). We interpre t the LMRDA broadly. SeeJohnson v. Nelson , 325 F.2d 646, 650 (8th Cir. 1963) ("Being trustees [union] officers must subvert their own personal interests to the lawful mandate s and orders of the organization.").

The claims by the transferred workers arise from the same alleged conduct by Gilchrist. Gilchrist had previously been a driver for Mid-States Dairy and remains on its seniority list, classified as having a leave of absence. Appellants claim that Gilchrist failed to negotiatedovetailing into the Pevely Addendum in order to protect his own interests and those of other Mid-States employees. Instead, according to appellants, Gilchrist wrongfu lly advised them to file a grievance regarding their seniority rights that was unlikely to succeed.

It is undisputed that Gilchrist stood to lose some seniority at Mid-States if seniority were to be dovetaile d for Pevely employees. Th e parties dispute the extentof his resulting loss of seniority, however, and whether his friendships with MidStates employees affected his decision maki ng. According to appellants, Gilchrist’s conduct breached Local 600's duty of fair representation and his fiduciary duty.

When the terms of a CBA are unambiguous, they are to be "enforced strictly." SeeContempo Design, Inc. v. Chi. & Ne. Ill. Dist. Council of Carpenters, 226 F.3d 535, 546 (7th Cir. 2000) (en banc); seealso Vaca v. Sipes , 386 U.S. 171, 184–85 (1967). Section 10.4 of the MDA makes cl ear that when a f acility is closed, transferred employees "shall go to the bottom of the seniority list at the new location." For the employees to prove a breach of th e duty of fair representation or breach of fiduciary duty, they would need to establis h that § 10.4 of the MDA could be amended by the Pevely Addendum to a llow dovetailing of seniority.-7- Section 21.1 of the MDA states that provisions of the MDA "take precedence over any conflicting provision of any Adde ndum and the parties shall not be bound by any provision in an Addendum dealing with a subject dealt with in the MDA." Dovetailing language in the Pevely Addendum would not have been binding on the parties because it would have conflicted directly with § 10.4 of the MDA which mandates endtailing for transferred employees . Therefore, even if Gilchrist had successfully negotiated for dovetailing of se niority in the Pevely Addendum, § 21.1 would still have controlled the seniority rights of the Pevely employees.

Moreover, the Pevely Addendum does not bind Mid-States employees. Once transferred to Mid-States, appellants were bound only by the Mid-States Addendum which was not up for negotiation. Even if the Mid-States Addendum had been subject to renegotiation, Gilchrist w ould then have had a duty to represent the best interests of all Mid-States employees, not just the Pevely transferees. Subjecting Mid-States employees to the Pevely Addendum would ha ve violated the plain language of their CBA and made them subject to the results of negotiations in which they were not a party. Local 600 and Gilchrist could not be expected to negotiate for an addendum that would directly violate the MDA and the rights of other employees under the MDA. Nothing in the LMRDA or LMRA re quires a union agent to attempt to amend a CBA to take action that infringes on the rights of an employee group or to engage in futile actions.

As evidence that the Pevely Adde ndum could have included a dovetailing provision, the employees cite a November2008 letter of understanding. Letters of understanding govern specific terms of employment at a specific plant and are entered into by local unions and individual dairy pl ants. In November 2008, eleven months after the new Pevely Addendum was signed, Local 600 and Mid-States Dairy entered into a letter of understanding placing a te mporary moratorium on job bidding, even though § 5.1 of the MDA provides that job vacancies shall open immediately for bidding. This letter of understanding, si gned by Gilchrist, contravened the MDA.-8- According to appellants, the November 2008 letter of understanding is evidence that the MDA can be amended and that Gilchrist was aware of this at the time of the Pevely Addendum negotiations. Record ev idence shows, however, that letters of understanding are only used to define specifi c plant procedures. They do not outline business practices at every other plant covered by the MDA. Although the November 2008 letter of understandi ng between Mid-States and its employees is inconsistent with § 5.1 of the MDA, it is readily distinguishable from the dovetailing provision the employees sought. That letter of understanding was agreed to by all the parties it affected. It created only a short term ch ange in job bidding and was to the mutual benefit of the parties involved. It did not affect any other plants or employees under the MDA, and any inconsistencies with the MDA were temporary.

The provision advocated by appellants, by contrast, would have created permanent changes in direct conflict with§ 10.4 of the MDA. Dovetailing seniority would have harmed the inte rests of Mid-States employees, whose contractual rights under the MDA would have been undermined by an agreement to which they were not a party. The plain language of § 21.1 of th e MDA addresses such direct conflicts and only binds parties to the provisions in the MDA. To dovetail transferred employees would have been a permanent change affecting other plants and employees. Moreover, the November 2008 letter of understanding was si gned eleven months after the events giving rise to this lawsuit. G ilchrist could not have known then that almost a year later Mid-States Dairy would co mpletely agree on a letter of understanding inconsistent with the language of the MDA.

Accordingly, the judgment of the district court is affirmed.

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