[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 31, 2006
No. 05-15119 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-22763-CV-AJ
PATRICIA TAAFFE,
Plaintiff-Appellant,
versus
BELLSOUTH TELECOMMUNICATIONS, INC.,
COMMUNICATIONS WORKERS OF AMERICA,
COMMUNICATIONS WORKERS OF AMERICA, LOCAL 3122,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 31, 2006)
Before ANDERSON, BIRCH and HILL, Circuit Judges.
PER CURIAM:
Patricia Taaffe appeals the grant of summary judgment to her employer on
her claim against both her employer for breach of contract by violation of the
collective bargaining agreement and her union for breach of its duty of fair
representation under 29 U.S.C. § 159(a). In such a hybrid § 301/fair representation
claim, plaintiff must be able to establish both that the employer breached its
collective bargaining agreement (the “CBA”) with the union, as well as that the
union breached its duty of fair representation of her. In this case, the district court
held that while there were material issues of genuine fact as to the former, Taaffe
failed to establish that the union acted irrationally or arbitrarily in settling a
grievance against her. We find no error in this conclusion.
I.
This case arises out of the selection of one employee over another for
promotion. The employer, Bell South Telecommunications, Inc., reviewed the
applicants and selected Patricia Taaffe for promotion to Material Services
Coordinator over the more senior employee, Debbie Markham. The collective
bargaining agreement between the employer and the union in this case provides
that:
In the selection of employees within the bargaining unit for
promotions within the bargaining unit, seniority shall govern if other
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necessary qualifications of the individuals are substantially equal.
Based upon her seniority, Markham grieved the selection to the union,
Communications Workers of America and Local 3122. The union settled the
grievance in Markham’s favor. Taaffe was returned to her former, lower-paying
position. She filed this action, alleging that the union breached its duty of fair
representation to her by settling the selection grievance in Markham’s favor.
The union breaches its duty of fair representation to Taaffe if it unreasonably
concludes that the employer’s selection of her for promotion was arbitrary. Taaffe
argues that the union could not have reasonably reached such a conclusion
because, although Markham was senior, her qualifications were not “substantially
equal” to Taaffe’s because her attendance record was “significantly worse” than
Taaffe’s.
II.
It is important to keep in mind in this case that we are limited in our review
of the settled grievance. In assessing whether a union has breached its duty of fair
representation, we are limited to the determination of whether the union’s actions
were “arbitrary, discriminatory, or in bad faith.” Vaca v. Snipes, 386 U.S. 171, 190
(1967). “[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
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‘wide range of reasonableness’ . . . as to be irrational.” Airline Pilot’s Assoc. v.
O’Neill, 499 U.S. 65, 67 (1991). We have adhered to these principles, noting that
the “cases are uniform in holding that neither negligence of the union nor a mistake
in judgment is sufficient to support a claim that the union acted in an arbitrary and
perfunctory manner,” and that “nothing less than a determination that the union
acted with reckless disregard for the employee’s rights or was grossly deficient in
its conduct will suffice to establish [a breach of the duty claim].” Harrris v.
Schwermann Trucking Co., 668 F.2d 1204, 1206 (11 th Cir. 1982) (citations
omitted).
Nor does our review of a union’s settlement of a grievance focus on whether
the underlying grievance had merit. “It is settled law that a breach of the fair
representation duty cannot be based on the trial court’s view regarding the
probability of success on the merits of the grievance.” Freeman v. O’Neal Steel,
Inc., 609 F.2d 1123, 1126 (5 th Cir. 1980). “Breach of the duty of fair
representation is not established by proof that the underlying grievance was
meritorious.” Vaca, 386 U.S. at 195. In short, the issue is not whether the union’s
interpretation of the facts and contract language was correct, but whether it was
arbitrary. Tedford v. Peabody Coal Co., 533 F.2d 952, 957 (5 th Cir. 1976).
In this case, the record is clear that the CBA contains no definition or
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explanation as to what constitutes “substantially equal” qualifications. This lack of
definition afforded the union wide latitude in its assessment of the equality of
Taaffe and Markham’s qualifications. Although Taaffe’s attendance was better
than Markham’s, the evidence was that the employer considered both to have some
“attendance issues.” Nor was there any other evidence in the record from which
we could determine that it was unreasonable for the union to determine that the two
employees’ attendance records were not “substantially equal.”
Although we may not agree with the union’s assessment of these two
employees’ qualifications, it is not within our authority to substitute our judgment
for that of the union’s in this regard. So long as the union’s interpretation of the
facts and the contract language in neither “arbitrary nor perfunctory,” and there is
no evidence that the union acted in reckless disregard for the employee’s rights, we
do not second-guess its determination that seniority prevails in this case over two
less-than-perfect attendance records.
We agree with district court that:
A seniority dispute between members of the same bargaining
unit, however, places the Local in a position of conflict which may
fairly be said to be inherent in the structure of federal labor laws . . .
But we are not ready to find a breach of the collective
bargaining agent’s duty of fair representation in taking a good faith
position contrary to that of some individuals whom it represents nor in
supporting the position of one group of employees against that of
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another . . . . “Inevitably differences arise in the manner and degree to
which the terms of any negotiated agreement affect individual
employees and classes of employees. The mere existence of such
differences does not make them invalid. The complete satisfaction of
all who are represented is hardly to be expected. A wide range of
reasonableness must be allowed a statutory bargaining representative
in service of the unit it represents, subject always to compete good
faith and honesty of purpose in the exercise of its discretion.”
(quoting Keane v. Eastern Freightways, Inc., Case Nos. 75-402 and 75-416, 1976
WL 1500 at *5-6 (D.N.J. May 5, 1976) (internal citations omitted).
Thus, as there is also no evidence of discriminatory or bad faith conduct on
the part of the union in this case, we conclude that the evidence in the record is
insufficient to disturb the “wide range of reasonableness” to be afforded the Union
in the handling of this grievance.
III.
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
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