concurring:
I concur in all that is said in part I of this decision, pertaining to the employee’s suit against the employer. I concur also in the order remanding the case against the union for further proceedings, but do not agree with the analysis in part II of the court’s opinion.
The principles set forth in our decision should be ones that can be followed faithfully by the employee’s bargaining agent. The standards imposed here, however, are not clear. I suggest the difficulty stems *1092from use of the term “arbitrary” to define a standard of care, when instead it should describe the standard we apply on reviewing the adequacy of the procedures followed by the union in the processing and resolution of grievances. The court attempts to define the term “arbitrary” by using tort law concepts of culpability. As such the term apparently proscribes conduct not involving bad faith, see Beriault v. Local 40, Super Cargoes and Checkers, 501 F.2d 258 (9th Cir. 1974), but which is more blameworthy than ordinary negligence. Dente v. International Organization of Masters, Mates and Pilots, Local 90, 492 F.2d 10, 12 (9th Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974). Neither the law of torts nor precedents in the federal common law of labor relations provide adequate guidance to define the term “arbitrary” in this manner.
The issue in the case is simply whether the procedures followed in the handling of the grievance were adequate. A labor union has some discretion in determining the proper resolution of an employee grievance. Vaca v. Sipes, 386 U.S. 171, 191-93, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). The Supreme Court has required that in exercising this discretion a union should adjust grievances in a manner that is neither arbitrary nor perfunctory. Vaca, supra. The standard of review imposed by this rule seems to me to require the kind of scrutiny we use whenever we review a determination by an individual or body entrusted with discretionary power. We inquire whether the discretion granted has been abused by a failure to make a reasoned decision. In the case now before us, we should inquire whether the union decisions lacked a rational basis, or whether by perfunctorily processing a grievance so that a reasoned decision was not made, the union foredoomed the grievance. In determining whether a union’s handling of a grievance is arbitrary or perfunctory, the trial court should consider whether the grievance lacked merit, e. g., Fountain v. Safeway Stores, Inc., 555 F.2d 753, 756 (9th Cir. 1977), as well as the importance of the grievance to the employee. These factors may bear upon whether or not there was a rational basis for the failure to advise the employee of the status of the claim, and whether or not the procedures followed in the particular case were adequate and fair to protect the interests at stake.
The record in this case would support a finding that the union followed procedures that were not adequate and therefore I would remand the case for further determination under the standards explained here; but I would not require the district court to scan the union’s conduct by placing it upon a tort law based continuum of fault.