February 4, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1796
RALPH J. MILLER, JR.,
Plaintiff, Appellant,
v.
UNITED STATES POSTAL SERVICE, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
Before
Torruella, Circuit Judge,
Bownes, Senior Circuit Judge,
and Cyr, Circuit Judge.
Charles G. Douglas III, with whom Douglas & Douglas, was on
brief for appellant.
William B. Peer, with whom Barbara L. Camens, Barr, Peer,
Cohen & Camens, were on brief for appellee National Rural Letter
Carriers' Association (NRLCA).
Gretchen Leah Witt, Assistant United States Attorney, Chief,
Civil Division, with whom Jeffrey R. Howard, United States
Attorney, was on brief for appellee U.S. Postal Service.
TORRUELLA, Circuit Judge. Appellant Ralph J. Miller,
appeals from a summary judgment in an action under 39 U.S.C.
1208(b) (1980)1 for breach of contract against the United
States Postal Service ("Postal Service"), and for breach of duty
of fair representation against the National Rural Letter
Carrier's Association (the "Union"). This joint cause is
commonly referred to as a "hybrid" suit. See, e.g., Reed v.
United Transp. Union, 488 U.S. 319, 327 (1989). We affirm the
district court's judgment.
Appellant, a rural carrier, lost his job at the Postal
Service on May 21, 1986. As a member of the collective
bargaining unit, he filed a grievance under the collective
bargaining agreement between the Union and the Postal Service.
The matter culminated in arbitration, in which the arbitrator
found that the Postal Service fired appellant without just cause,
and ordered reinstatement and lost earnings. Approximately one
month after this ruling, the Postal Service reinstated appellant
1 Section 1208(b) provides:
Suits for violation of contracts between
the Postal Service and a labor
organization representing Postal Service
employees, or between any such labor
organization, may be brought in any
district court of the United States
having jurisdiction of the parties,
without respect to the amount in
controversy.
Because this language is identical in all relevant respects to
that of 301(a) of the Labor Management Relations Act, 24 U.S.C.
185(a) (West Supp. 1992), cases interpreting the latter apply
to 1208(b). Bowen v. United States Postal Serv., 459 U.S. 212,
232 n.2 (1983) (White, J., concurring in part and dissenting in
part).
but refused to afford him back pay. The Postal service based
this refusal on appellant's alleged failure to mitigate his
damages by attempting to obtain other employment during the
thirteen-month period of suspension as required by the Postal
Service's Employee and Labor Relations Manual (the "Manual").
Consequently, appellant filed a new grievance for back
pay which proceeded through the various contractual steps until
it reached national arbitration on July 28, 1989. In addition,
on July 10, 1990, appellant filed the present action in the
United States District Court for the District of New Hampshire.
The Union subsequently withdrew the grievance from arbitration.
Appellant initially proceeded pro se in his federal
court action against the Postal Service and the Union.2 A
series of amendments followed his original complaint.
Essentially, he alleged that: (1) the Postal Service failed to
abide by the arbitration award, and the Manual's mitigation
requirements conflict with the provisions of the collective
bargaining agreement; and (2) the Union was "either unwilling or
unable to recover [his] money."
The Postal Service counterattacked with its own motion
for summary judgment, which the Union joined. The motion
asserted that: (1) the collective bargaining contract
incorporated the Manual by reference; (2) the Manual required a
2 Although in one of the motions to amend his complaint
appellant stated that his "only dispute . . . [was] with his
employer," he later filed a motion for summary judgment accusing
the Union of breaching its duty of fair representation by failing
to "follow up on a lead" that he provided.
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suspended employee to mitigate damages by seeking employment
during suspension or discharge; and (3) appellant failed to
mitigate his damages. Additionally, the Union asserted that its
decision to withdraw appellant's grievance for back pay "was made
for rational, nondiscriminatory reasons."
Appellant, by this time represented by counsel,
retorted that the Postal Service was "not entitled to a judgment
as a matter of law because the defense now asserted was not
raised in the underlying arbitration." With respect to the
Union, appellant maintained that it had treated his claim "in a
perfunctory manner" and that this conduct, coupled with the
three-year delay during which it failed to inform appellant of
alternate modes of relief, amounted to a breach of the Union's
duty of fair representation when it withdrew the grievance.
The district court's summary judgment for the Postal
Service is narrowly tailored and deserves our approval. To
succeed in a hybrid breach of contract and fair representation
claim, appellant must establish not only that the employer
breached the contract, but also that his union breached its duty
of fair representation. Teamsters v. Terry, 494 U.S. 558, 564
(1990); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71
(1976). These claims are "inextricably linked," Demars v.
General Dynamics Corp., 779 F.2d 95, 97 (1st Cir. 1985), and
failure to prove either one of them results in failure of the
entire hybrid action. See DelCostello v. Teamsters, 462 U.S.
151, 164-65 (1983).
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The district court found no violation of the Union's
duty toward appellant, and we agree. A Union breaches this duty
"only when [its] conduct toward a member of the collective
bargaining unit is arbitrary, discriminatory, or in bad faith."
Vaca v. Sipes, 386 U.S. 171, 190 (1967); Williams v. Sea-Land
Corp., 844 F.2d 17, 19 (1st Cir. 1988). The Supreme Court
explained that 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." Air Line Pilots
Ass'n Int'l v. O'Neill, 111 S. Ct. 1127, 1130 (1991) (citations
omitted). Courts may not substitute their own views for those of
the union. "[A]ny substantial examination of a union's
performance . . . must be highly deferential," id. at 1135,
because of the well-recognized need to allow unions ample
latitude in the performance of their representative duties. See
Steelworkers v. Rawson, 495 U.S. 362, 374 (1990); Vaca, 386 U.S.
at 191-93. Thus, we have held that a union's mere negligence or
erroneous judgment will not constitute a breach of the duty of
fair representation. Condon v. United Steelworkers Local 2944,
683 F.2d 590, 594 (1st Cir. 1982). We also allow the union great
latitude in determining the merits of an employee's grievance and
the level of effort it will expend to pursue it. Torres-Matos v.
St. Lawrence Garment Co., 901 F.2d 1144, 1148 (1st Cir. 1990);
Williams, 844 F.2d at 21.
Accordingly, failure to take a grievance to arbitration
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constitutes a breach of the duty of fair representation only when
the union's otherwise good faith decision is arbitrary. See
Col n-V lez v. Puerto Rico Marine Management, Inc., 957 F.2d 933,
941 (1st Cir. 1992); see also Vaca, 386 U.S. at 191 (employees
have no absolute right to have grievance taken to arbitration).
The undisputed facts establish that the Union initially
supported appellant's grievance regarding his back-pay claim. It
processed the grievance through the various contractual steps up
to national arbitration. Although the Union knew of appellant's
failure to mitigate, the Union believed that a genuine issue
existed regarding whether the mitigation requirements were
"punitive, unreasonable and in conflict with other provisions of
the National Agreement." It thus sought arbitration of
appellant's claim and continued to investigate the matter. As a
result of this investigation, the Union discovered that several
arbitrators had found mitigation requirements valid.
Accordingly, it decided that it was in everyone's best interests
to withdraw the grievance from arbitration.3 Before doing so,
however, it attempted, unsuccessfully, to negotiate a settlement
with the Postal Service. On November 8, 1990, the Union withdrew
the grievance.
Given these undisputed facts, we cannot conclude that
the Union's actions were irrational. Furthermore, nothing in the
3 To continue a meritless grievance adversely affects the
Union's credibility and finances. See Williams, 844 F.2d at 21;
Berrigan v. Greyhound Lines, Inc., 782 F.2d 295, 298 (1st Cir.
1986).
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record intimates that the Union acted in a perfunctory or
arbitrary manner or in bad faith. If anything, the record
exhibits diligence and an attempt to make the best out of a
difficult situation. If the Union failed, it was not through
lack of effort, but rather because appellant's claim lacked
merit.
Finally, at oral argument appellant argued principally
that the Union violated its duty of fair representation by
failing to properly advise him of the Manual's mitigation
requirements. This is a new argument, never raised in the
district court. Appellant's change in direction has been a
recurrent theme throughout this litigation. See, e.g., Miller v.
United States Postal Serv., 792 F. Supp. 4, 6 n.4 (D.N.H. 1992).
If the argument was mistakenly overlooked during the pro se
stages of the case, appellant had ample opportunity, once
represented by counsel, to correct any earlier deficiencies. It
is now too late to do so; we cannot consider issues raised for
the first time on appeal. G.D. v. Westmoreland Sch. Dist., 930
F.2d 942, 950 (1st Cir. 1991); Johnston v. Holiday Inns, Inc.,
595 F.2d 890, 894 (1st Cir. 1979).4 After considering the other
issues raised by appellant, we find them equally insubstantial.
Thus, we need go no further; as appellant failed to make a case
4 Notably, appellant's new argument appears to lack merit
anyway. The failure to adequately notify its members of their
burden under the Collective Bargaining Agreement does not amount
to more than negligence. Mere negligence or a mistake in
judgment is insufficient to establish a breach of the union's
duty." Jenkins v. Great Lakes Plastics, Inc., 119 LRRM (BNA)
2191 (E.D. Mich. 1985).
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against the Union, the symbiotic nature of the hybrid action
requires that we also reject the action against the Postal
Service.
Affirmed. Costs to appellees.
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Miller v. U.S. Postal Service
Combined Opinion