Schwartz v. Brotherhood of Maintenance of Way Employes

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 4 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

PAUL M. SCHWARTZ; KEVIN R.
KLUNDT; BILLY W. ROBINSON;
ANDREW E. DILWORTH; JAY L.
HATFIELD; ERIC A. JESSON;
SCOTT VESKRNA; and all other
similarly situated members of the
Brotherhood of Maintenance of Way
Employes,
Plaintiffs - Appellants,
v. No. 00-8045
BROTHERHOOD OF
MAINTENANCE OF WAY
EMPLOYES, and its applicable
Division; and BURLINGTON
SYSTEM DIVISION,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 99-CV-171-B)

Bruce S. Asay (Keith S. Burron with him on the briefs) of Associated Legal
Group, LLC, Cheyenne, Wyoming, for Plaintiffs-Appellants.

Charles A. Collins, St. Paul, Minnesota (Michael R. O’Donnell of Burke,
Woodard & O’Donnell, PC, Cheyenne, Wyoming, and William A. Bon of
Brotherhood of Maintenance of Way Employes, Southfield, Michigan, with him
on the brief), for Defendants-Appellees.
_________________________
Before TACHA, Chief Judge, McKAY and CUDAHY, * Circuit Judges.
_________________________

McKAY, Circuit Judge.
_________________________

This appeal requires us to decide whether a union breached its duty of fair

representation to several members. The district court granted summary judgment

to Defendant, the Brotherhood of Maintenance of Way Employes, and dismissed

the case. Plaintiffs, primarily former union members, appeal. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291.

Our recitation of the facts warrants some preliminary explanation. The

summary judgment posture of the case compels us to view the evidence in the

light most favorable to Plaintiffs, the nonmoving party below. See Bullington v.

United Air Lines, Inc., 186 F.3d 1301, 1313 (10th Cir. 1999). This evidentiary

lens reveals a case teeming with genuine factual disputes. That is, a rational juror

could decide the disputed factual allegations in Plaintiffs’ favor based on the

evidence presented. See Chasteen v. UNISA JECS Corp., 216 F.3d 1212, 1216

(10th Cir. 2000). To avert summary judgment, however, the contested facts must

be material. In other words, “[o]nly disputes over facts that might affect the

*
Honorable Richard D. Cudahy, United States Senior Circuit Judge, United
States Court of Appeals for the Seventh Circuit, sitting by designation.

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outcome of the suit under the governing law will properly preclude the entry of

summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Thus, if Plaintiffs’ version of the genuine disputed facts demonstrates a breach of

the duty of fair representation, then the dispute must be material, and summary

judgment cannot lie. For purposes of this appeal, therefore, we resolve all

genuine fact disputes in Plaintiffs’ favor and will recite the facts accordingly,

without mention of the Defendant union’s contrary allegations. If the facts, thus

stated, constitute a breach of the union’s duty, then we must reverse and remand.

The record shows that Plaintiffs worked for the Burlington Northern-Santa

Fe Railroad in the maintenance of way “craft” and belonged to Defendant union,

the Brotherhood of Maintenance of Way Employes (International), represented

locally by the Burlington System Division. The railroad advertised openings in

the train service craft, considered a better job than maintenance of way work. A

different union, the United Transportation Union, represents train service

employees. Plaintiffs opted to change crafts, which necessitated approximately

fifteen weeks of full-time training and successful completion of a test.

However, Plaintiffs could not simply skip their maintenance of way work to

attend train service classes without consequence. Failure to report to work

constituted grounds for dismissal—a risky proposition considering there was no

guarantee that a trainee would ultimately qualify for train service work. Thus, to

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preserve their seniority rights in Defendant union during the training period,

Plaintiffs were required to obtain leaves of absence and any necessary extensions

thereof for the term of their absence. All of the Plaintiffs secured an initial leave

of absence of sixty or ninety days.

At some point during the train service courses, Plaintiffs heard rumors that

there would not be any openings when they finished. Apparently, train service

workers coming in from other parts of the country were exercising their seniority

rights by taking the positions anticipated by Plaintiffs. Understandably concerned

about employment prospects, Plaintiffs questioned whether they could return to

the maintenance of way craft pending openings in train service. This presented a

novel situation for Defendant union. Historically, craft transfers had always

found work in the new craft, and no one had ever needed or wanted to return to a

previous department. Moreover, the collective bargaining agreement did not

completely address the Plaintiffs’ question. The most relevant provision simply

provided that “an employe on leave of absence accepting other employment

without first obtaining written permission from the Company and the duly

accredited representative of the employes will be considered as having left the

service and all seniority rights will be forfeited.” Appellee’s Supp. App. at 122

(collective bargaining agreement, rule 15E).

When confronted with the dilemma, David Joynt, the Chairman of the

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Defendant Burlington System Division union, repeatedly told Plaintiffs and/or

their train service instructor, who had been investigating the issue on Plaintiffs’

behalf, that by merely passing the train service exam craft transfers would lose

their maintenance of way seniority, regardless of whether they continued to hold

valid leaves of absence. Based on this representation, Plaintiffs let their leaves of

absence expire while going on to complete the train service course and pass the

final exam. 1 Without a valid leave, they automatically lost their positions in

maintenance of way. Upon qualifying for train service work, Plaintiffs were

immediately placed on furlough, a sort of waiting period allowing an employee to

do whatever else he wants, even getting another job, subject to being called to

work in train service when openings became available.

Several months after first learning of the craft transfer problem, Chairman

Joynt arranged with the railroad to allow those employees with continuing leaves

of absence from maintenance of way, who had qualified for but could not be

placed in train service, to return to work in maintenance of way. This

arrangement did nothing for Plaintiffs, however, who had already lost their

seniority. The district court assumed, as do we on summary judgment, that but for

Chairman Joynt’s advice that their leaves of absence did not matter, Plaintiffs

1
We note that one Plaintiff dropped out of the train service course before
taking the test and began working again in the maintenance of way department.
For convenience, however, we discuss all Plaintiffs as if in the same factual boat.

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would have maintained active leaves and been able to return to the maintenance

of way department while on furlough from train service. See Aplt. Br. App. B. at

9 (Order Granting Defendants’ Motions for Summary Judgment). Plaintiffs

sued Defendant union in federal district court. In relevant part, they claimed that

Chairman Joynt’s advice and dilatory resolution of this novel craft transfer

dilemma breached Defendant union’s duty of fair representation. The district

court granted Defendant summary judgment.

The duty of fair representation arises from a union’s legal status as the sole

and exclusive bargaining representative of employees’ interests with their

employer. See Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1239 (10th Cir.

1998), cert. denied, 526 U.S. 1018 (1999). From that right to represent all the

members of a designated employment unit flows an “obligation to serve the

interests of all members.” Vaca v. Sipes, 386 U.S. 171, 177 (1967). By design,

the obligation “stands ‘as a bulwark to prevent arbitrary union conduct against

individuals stripped of traditional forms of redress by the provisions of federal

labor law.’” DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 165 n.14

(1983) (quoting Vaca, 386 U.S. at 182). On the other hand, representing

collectively a diverse constituency poses tremendous difficulties. Even the best

intentioned, most thoughtful union action will almost invariably further the

interests of one employee faction at the expense of another. See, e.g., Considine

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v. Newspaper Agency Corp., 43 F.3d 1349, 1357 (10th Cir. 1994). Consequently,

too stringent a duty of representation would subject the union to endless attacks

from within, undermining the very purpose for the union’s existence—to present a

strong, unified front to employers. Thus, a sensible duty of fair representation

must allow for the “wide latitude,” Air Line Pilots Ass’n, Int’l v. O’Neill, 499

U.S. 65, 78 (1991) [hereinafter ALPA], that a union needs to represent

collectively the varied interests of its members while at the same time protecting

the individual employee’s legitimate claim for redress due to unjustifiable union

conduct.

The duty of fair representation attempts to accomplish both goals by

making a union liable to its members for conduct that is “‘arbitrary,

discriminatory, or in bad faith.’” Id. at 67 (quoting Vaca, 386 U.S. at 190); see

also Webb, 155 F.3d at 1240-41 (stating that “perfunctory” union conduct may be

actionable in certain contexts or as a specific type of arbitrary conduct). The

Supreme Court has made it clear that this duty “applies to all union activity.”

ALPA, 499 U.S. at 67, 77. Although specific articulations may vary slightly

based on context, see, e.g., Breininger v. Sheet Metal Workers, 493 U.S. 67, 89

(1989) (explaining the duty in a union hiring hall context); Webb, 155 F.3d at

1239 (explaining scope of the duty in a grievance arbitration proceeding), the

general contours of the tripartite standard are well-established.

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 A union’s actions are arbitrary only if, “in light of the factual and
legal landscape at the time of the union’s actions, the union’s
behavior is so far outside a ‘wide range of reasonableness’ as to be
irrational.” [ALPA, 499 U.S. at 67 (citation omitted)]. A union’s
discriminatory conduct violates its duty of fair representation if it is
“invidious.” Id. [at 81]. Bad faith requires a showing of fraud, or
deceitful or dishonest action. Mock v. T.G. & Y. Stores Co., 971
F.2d 522, 531 (10th Cir. 1992).

Aguinaga v. United Food & Commercial Workers Int’l Union, 993 F.2d 1463,

1470 (10th Cir. 1993), cert. denied, 510 U.S. 1072 (1994). We now turn to

application of these principles to the facts outlined above.

First, we agree with the district court that the evidence, even viewed in

Plaintiffs’ favor, does not indicate that Chairman Joynt acted in bad faith.

Indeed, Plaintiffs’ arguments on this issue have wholly failed to assert facts

reasonably showing fraudulent, deceitful, or dishonest representation of union

members—the three bases for finding bad faith. Significantly, Plaintiffs offer no

cases, or any legal authority for that matter, supporting their argument. Plaintiffs’

bad faith allegations are so far afield of our precedent and so lacking in support

that they do not warrant further discussion. Put simply, we see no legal or factual

basis for asserting a bad faith claim in the instant case.

Second, we also agree with the district court that the facts do not show

Chairman Joynt wrongfully discriminated against Plaintiffs. Only “invidious”

discrimination breaches the duty of fair representation. “[D]iscrimination is

invidious if based upon impermissible or immutable classifications such as race or

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other constitutionally protected categories, or arises from prejudice or animus.”

Considine, 43 F.3d at 1359-60. In large part, Plaintiffs base their discrimination

claim on the fact that they were denied re-employment in maintenance of way

while other train service trainees (who possessed valid leaves of absence) were

allowed to return. At most, this might show Plaintiffs were treated differently

than other employees. That mere fact, however, does nothing to suggest why

Plaintiffs were treated differently—the crucial question for a duty of fair

representation discrimination claim. On that score, Plaintiffs have not pointed to,

nor can we find, any record evidence reasonably showing or implying that they

were discriminated against because of some immutable characteristic or because

Chairman Joynt bore personal prejudice or animus towards them.

Lastly, the district court concluded that no evidence suggests Chairman

Joynt acted arbitrarily. “A union’s actions are arbitrary only if, ‘in light of the

factual and legal landscape at the time of the union’s actions, the union’s

behavior is so far outside a “wide range of reasonableness” as to be irrational.’”

Aguinaga, 993 F.2d at 1470 (quoting ALPA, 499 U.S. at 67 (citation omitted)).

Plaintiffs contend that Chairman Joynt’s advice and dilatory resolution of the

overall dilemma satisfy this test.

Based on the current state of the record, there is credible evidence that

Chairman Joynt’s advice was irrational at the time he gave it. For instance,

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during deposition testimony, Plaintiffs’ counsel asked Robert Nickens, a Vice

Chairman in the Defendant Burlington System Division union:

If it’s true that Dave Joynt told [the train service instructor] or
[Plaintiffs] that it didn’t matter whether they had a current leave or
not, as soon as they passed the test, they could not go back to
Maintenance, would that be, in your understanding, an incorrect
statement?

[Vice-Chairman Nickens responded:] I will give you my feeling on
that. That would be impossible. That would be asking David, David,
does the sun come up in the east or the west, and he says it comes up
in the west.

Aplt. App. at 87-88. At another point in the deposition, Vice-Chairman Nickens

testified that “I can’t even say this straight faced that I would have told a guy,

your leave of absence doesn’t matter. It’s just incomprehensible.” Id. at 93

(emphasis added).

Presumably, and no evidence suggests otherwise, Vice-Chairman Nickens

was familiar with the “factual and legal landscape at the time” the advice was

given. Thus, the testimony raises the possibility that Chairman Joynt’s advice

was “so far outside a ‘wide range of reasonableness’ as to be irrational.”

Aguinaga, 993 F.2d at 1470 (quoting ALPA, 499 U.S. at 67 (citation omitted)).

Any other conclusion would effectively read the arbitrary prong out of the duty of

fair representation, at least in bad advice cases, and thereby defy the Supreme

Court’s mandate that the “arbitrary, discriminatory, or bad faith” standard apply

“to all union activity.” ALPA, 499 U.S. at 67.

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 To be sure, as Defendant union points out in its brief, Vice-Chairman

Nickens does not believe that Chairman Joynt actually told Plaintiffs that their

leaves of absence did not matter. But that fact is irrelevant; for purposes of

summary judgment we must assume that he did. The only question is whether

such advice was arbitrary or irrational at the time it was given. The testimony of

Vice Chairman Nickens, reasonably viewed in Plaintiffs’ favor, alleges that it

was. Hence, there is a genuine dispute of material fact regarding what Chairman

Joynt said and whether it was irrational. Consequently, the district court erred in

granting summary judgment on this issue.

Nelson v. Holmes Freight Lines, Inc., 37 F.3d 591 (10th Cir. 1994), does

not compel a contrary conclusion. In Nelson, this court held that a union

representative’s bad advice did not breach the duty of fair representation. In

relevant part, the employer had accused the plaintiff of stealing. The employer

told the plaintiff to resign or else he would be fired and charged with theft.

Needing immediate advice, the plaintiff turned to a union representative who was

present. The representative told the plaintiff that he could not tell him whether to

resign or not, but that if he were in the plaintiff’s position, he would not resign.

Nonetheless, the representative told the plaintiff that the union would file a

grievance either way. The plaintiff resigned and the union filed a grievance. The

hearing committee dismissed the complaint, however, because under the terms of

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the collective bargaining agreement only discharged employees could bring

grievances. See generally id. at 593. In short, the union representative

incorrectly informed the plaintiff that he could bring a grievance even if he

resigned. Though there are obvious similarities between Nelson and the instant

case, there is at least one dispositive difference. In Nelson no credible evidence

indicated that the union representative’s advice was arbitrary or irrational in light

of the legal and factual background, whereas the testimony of Vice-Chairman

Nickens supplies such evidence in the case at hand. On summary judgment

review, that distinction makes all the difference.

In addition to attacking the substance of Chairman Joynt’s advice, Plaintiffs

argue that the way he handled their inquiries was arbitrary. Specifically,

Plaintiffs assert that Chairman Joynt’s eventual resolution of the craft transfer

dilemma several months after first discovering the problem—too late to help

plaintiffs—amounts to arbitrary or perfunctory conduct. In essence, they claim

there is no reasonable explanation for the delay; Chairman Joynt should have

investigated and resolved the problem upon first learning about it. Having

reviewed the record, however, we conclude that the evidence fails to support a

separate claim for arbitrary failure to investigate or for perfunctory conduct.

Nonetheless, Plaintiffs may continue to proffer all of their facts on remand in

support of the general claim that the advice rendered was arbitrary.

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 AFFIRMED in part, REVERSED in part, and REMANDED for proceedings

consistent with this opinion.

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