Section 9 Proof of Liability

• Library: Employer-Employee Law 2008

In the hybrid § 301/DFR claim (§ 301, 29 U.S.C. § 185), the plaintiff must prove both a breach of the collective bargaining agreement and the union’s failure to remedy that breach. Typically, courts analyze the evidence on the union’s conduct first because the standard tilts heavily in favor of the union and, thus, presents a generous target on summary judgment. Buford v. Runyon, 160 F.3d 1199, 1202 (8^th Cir. 1998) (review of union’s performance in representing members must be highly deferential) (citing Air Line Pilots Ass’n, Int’l v. O’Neill,
499 U.S. 65, 78 (1991)); McKelvin v. E.J. Brach Corp., 124 F.3d 864, 867 (7^th Cir. 1997) (characterizing the court’s review of union decision not to pursue grievance to arbitration as “extremely deferential”).
A ruling finding no violation of duty on the union’s part obviates the need to determine whether the employer breached the labor contract. Jones v. United Parcel Serv., Inc., 461 F.3d 982, 994 (8^th Cir. 2006); Smith v. United Parcel Serv., Inc., 96 F.3d 1066, 1069 (8^th Cir.1996) (when the court finds summary judgment to be proper for the union on a DFR claim, it necessarily follows that summary judgment must be entered for the company on the breach of contract claim).

A union’s conduct falls below the requisite standard if it is arbitrary, discriminatory, or taken in bad faith. Vaca v. Sipes, 386 U.S. 171, 190 (1967). A union’s decision on processing a grievance should not be deemed “arbitrary”—and thus, a violation of the DFR—unless it appears so unreasonable as to be “irrational.” O’Neill, 499 U.S. at 78. The Eighth Circuit has embraced that forgiving standard. Baxter v. United Paperworkers Int’l Union, Local 7370, 140 F.3d 745, 747
(8^th Cir. 1998) (“To prove arbitrariness,” a plaintiff must show that a union’s “conduct was irrational.”). Likewise, the Eighth Circuit has held that bad faith in processing a grievance requires evidence of “fraud, deceitful action, or dishonest conduct.” Id.; see also Smith,
96 F.3d at 1069. And the discrimination ground for attacking a union’s grievance processing requires “invidious discrimination,” i.e., based on race, gender, or some other immutable characteristic, or “personal prejudice or animus” on the part of the union decision-maker. Schwartz v. Bhd. of Maint. of Way Employes, 264 F.3d 1181, 1186 (10^th Cir. 2001). See also O’Neill, 499 U.S. at 81 (invidious discrimination breaches the duty of fair representation); Barton Brands, Ltd. v. NLRB, 529 F.2d 793, 798–99 (7^th Cir. 1976) (union violates representational duty by preferring “politically favored group” over other members). Some courts have also used the word “perfunctory” to describe a union performance that falls below the required standard. See, e.g., Washington v. Serv. Employees Int’l Union, Local 50, 130 F.3d 825, 826 (8^th Cir. 1997); Beavers v. United Paperworkers Int’l Union, Local 1741, 72 F.3d 97, 101–02 (8^th Cir. 1995). While a perfunctory effort might connote a superficial or unenthusiastic performance, although not necessarily one reflecting bad faith or animus, the courts have essentially construed that characterization to be...