874 F2d 816 Huhn II v. Pullman Power Products Corporation

874 F.2d 816

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Leo Howell HUHN, II, Plaintiff-Appellant,

No. 88-5894.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 6, 1989.
Decided May 4, 1989.

Richard A. Gadbois, Jr., District Judge, Presiding.

Before CANBY, WIGGINS, O'SCANNLAIN, Circuit Judges.

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Leo Howell Huhn, II (Huhn) appeals the dismissal of his wrongful termination action against his former employer, Pullman Power Products Corporation (Pullman). The district court dismissed this action after granting Pullman's motion for summary judgment. Huhn alleges that he was discharged without proper cause, in violation of the applicable collective bargaining agreement (CBA). Huhn further alleges that his failure to exhaust the contractual grievance procedures was excused by his union's breach of its duty of fair representation and by Pullman's repudiation of the procedures. We affirm.



Pullman did contracting work for Pacific Gas & Electric Company (PG & E) at the Diablo Canyon Nuclear Power Plant (Diablo Canyon) in San Luis Obispo, California. Pullman employed Huhn as a welder at Diablo Canyon. On July 10, 1984, Pullman terminated Huhn's employment.


Huhn was a member of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (Association). The terms and conditions of Huhn's employment with Pullman were governed by the General Presidents' Project Maintenance Agreement by Contract (GPPMA), the CBA between Pullman and the Association. Under the GPPMA, Pullman could discharge Huhn only for good cause. Since Huhn believed he was wrongfully terminated, he took his grievance to the Association. Through the Association, Huhn submitted his grievance to step I of the four step grievance procedure mandated by the GPPMA. Sid Stolper, business manager of the local union, represented Huhn at this step.


Huhn's grievance was not resolved at step I and the Association submitted it to step II. Robert Costello, the Association's international representative, represented Huhn at step II. According to Costello and Pullman, Pullman agreed to recommend to PG & E that Huhn receive back pay and be eligible for rehiring. PG & E refused to authorize any back pay. Huhn, however, asserts that Pullman actually promised to pay him back wages but then reneged when PG & E refused to reimburse Pullman for the outlay.


In September 1985, Costello informed Huhn that the Association would not pursue his grievance any further. Costello explained that he felt that the grievance could not be won at later steps because of PG & E's position on back pay. Costello based his decision on conversations with Pullman's representative and on the Association's previous experiences with similar grievances involving a contractor and PG & E. Consequently, the Association did not submit Huhn's grievance to steps III or IV.


Huhn filed a civil action based on wrongful termination against Pullman in state court. Pullman removed the case to federal district court. In his second amended complaint, Huhn alleged that Pullman had fired him without proper cause in violation of the GPPMA. Huhn admitted that he had failed to exhaust the grievance procedure mandated by the GPPMA, but asserted that his failure was excused by the Association's breach of its duty of fair representation and by Pullman's repudiation of the grievance procedure. The district court granted summary judgment in favor of Pullman, concluding that the Association had not breached its duty of fair representation and Pullman had not repudiated the grievance procedure. Huhn timely appealed. We have jurisdiction under 28 U.S.C. Sec. 1291.


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This court reviews a grant of summary judgment de novo, examining the record in the light most favorable to the nonmoving party. Moore v. Bechtel Power Corp., 840 F.2d 634, 636 (9th Cir.1988); Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986). We must determine whether there is any genuine issue of material fact and whether the district court correctly applied the substantive law. Id.


This action for breach of a CBA arises under section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185. Generally, a bargaining unit employee may not bring an action for breach of a CBA unless he has exhausted the contractual grievance procedures. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53 (1965); Truex v. Garrett Freightlines, Inc., 784 F.2d 1347, 1353 (9th Cir.1985). The employee, however, may obtain judicial review of his claim despite his failure to exhaust contractual remedies if the employer repudiates the contractual procedures or the union breaches its duty of fair representation. Vaca v. Sipes, 386 U.S. 171, 185-86 (1967).


A. Breach of the Association's Duty of Fair Representation


"The duty of fair representation is a judicially established rule imposed on labor organizations because of their status as the exclusive bargaining representative for all of the employees in a given bargaining unit." Peterson v. Kennedy, 771 F.2d 1244, 1253 (9th Cir.1985), cert. denied, 475 U.S. 1122 (1986). Unions, however, have broad discretion to act in what they perceive to be their members' best interests and this court has construed the fair representation doctrine narrowly to protect that discretion. Moore, 840 F.2d at 636; Galindo v. Stoody Co., 793 F.2d 1502, 1514 (9th Cir.1986). A union breaches its duty of fair representation when its conduct towards a member of the bargaining unit is "arbitrary, discriminatory, or in bad faith." Vaca, 386 U.S. at 190; Salinas v. Milne Truck Lines, Inc., 846 F.2d 568, 569 (9th Cir.1988). In applying the fair representation doctrine:


we ask first whether the act in question involved the union's judgment, or whether it was "procedural or ministerial." If it is a union's judgment that is in question ... the plaintiff may prevail only if the union's conduct was discriminatory or in bad faith. Arbitrariness alone would not be enough. Only when the challenged conduct was procedural or ministerial does arbitrariness become controlling.


Moore, 840 F.2d at 636 (citations omitted).1


Huhn argues that the processing of his grievance to step III of the grievance procedure was a procedural or ministerial act and that the Association's failure to proceed to step III was arbitrary. Huhn claims that under the GPPMA a grievance unresolved at step II must advance to step III and therefore the Association had no authority to exercise discretion. The Association, however, believed it had the authority to decline to pursue a grievance beyond step II and "a union's conduct may not be deemed arbitrary simply because of an error ... in interpreting particular provisions of a collective bargaining agreement...." Peterson, 771 F.2d at 1254.


The Association declined to pursue Huhn's grievance beyond step II because it believed, based on its past experiences with similar grievances, that further efforts would be futile. This clearly involved the Association's judgment about how best to handle a grievance.


Because the Association's judgment is at issue, Huhn can establish a breach of the duty of fair representation only if the Association's conduct was discriminatory or in bad faith. See Salinas, 846 F.2d at 569. Huhn argues that the Association's failure to pursue his grievance evidences bad faith because the Association knew he had been wrongfully terminated. Huhn apparently raises this issue for the first time on appeal.2 This court generally will not consider an issue raised for the first time on appeal. Bolker v. Commissioner, 760 F.2d 1034, 1042 (9th Cir.1985). Moreover, there is no evidence that the Association acted in bad faith. A disagreement between Huhn and the Association about whether to pursue his grievance beyond step II, standing alone, does not demonstrate bad faith, even if Huhn's claim had arguable merit. See Moore, 840 F.2d at 637 ("a disagreement between a union and an employee over a grievance, standing alone, [does not] constitute evidence of bad faith, even when the employee's grievance is meritorious"). Furthermore, the Association's reliance on its experience with similar grievances in deciding how to handle Huhn's grievance indicates that it did not act in bad faith. See Salinas, 846 F.2d at 569-70 (union's "reliance on precedent suggests that its conduct was not discriminatory or in bad faith").


We conclude, therefore, that no genuine issue of material fact exists with respect to whether the Association breached its duty of fair representation, either by arbitrarily failing to perform a ministerial act or by acting in bad faith. Huhn's failure to exhaust the contractual grievance procedures is not excused because of the Association's conduct and summary judgment was properly granted on that basis.


B. Pullman's Repudiation of the Grievance Procedures


Huhn contends that a genuine issue of material fact exists regarding whether Pullman agreed at step II to pay Huhn back wages. Huhn argues that this fact is material to the issue of whether Pullman repudiated the grievance procedures mandated by the GPPMA. Pullman claims that all competent evidence demonstrates that it never promised to pay back wages. Pullman also contends that even if it did promise to pay back wages, that fact is immaterial as to whether it repudiated the GPPMA grievance procedures.


If Pullman did agree to pay Huhn, then Huhn alleges a breach of that promise. Courts considering the "repudiation" doctrine have looked for a rejection of the specific grievance procedures. A party's refusal to abide by the substantive provisions of the CBA itself does not constitute a repudiation excusing nonexhaustion of contractual procedures. See Drake Bakeries, Inc. v. Local 50, American Bakery Workers Int'l, 370 U.S. 254, 260-66 (1962) (strike called by union in violation of the CBA's no-strike provision was not a repudiation of the arbitration provision because "[a]rbitration provisions, which themselves have not been repudiated, are meant to survive breaches of contract"); Bailey v. Bicknell Minerals, Inc., 819 F.2d 690, 692 (7th Cir.1987) (employer's implementation of a CBA addendum, even if in breach of the CBA, was not a repudiation of the arbritration clause and therefore union must submit dispute to arbitration prior to bringing suit).


Although Huhn alleges the breach of a promise made during the grievance procedure, rather than a breach of the GPPMA itself, the rationale of Drake Bakeries and Bailey nonetheless applies. The Association, not Pullman, decided not to submit Huhn's grievance to step III. Although Pullman may have breached its promise to Huhn, it never rejected the contractual procedures. We conclude, therefore, that Pullman did not repudiate the grievance procedures. Huhn's failure to exhaust the procedures is not excused because of Pullman's conduct and summary judgment was properly granted on that basis.



Huhn's failure to exhaust the mandatory grievance procedures was not excused by any breach of the Association's duty of fair representation or by Pullman's repudiation of the procedures. The judgment of the district court is AFFIRMED.


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


This court has characterized as ministerial acts those involving the timely filing of grievances, Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, 1273-74 (9th Cir.1983), the proper notification to employers of a union member's status, Galindo, 793 F.2d at 1514, or notification to a union member of the union's decision not to pursue his grievance, Robesky v. Qantas Empire Airways Ltd., 573 F.2d 1082, 1088 (9th Cir.1978)


Huhn maintains that his allegation below that the Association "wrongfully, arbitrarily and without rational basis" refused to pursue his grievance adequately raised the issue of bad faith. We disagree