Unpublished Disposition, 940 F.2d 669 (9th Cir. 1989)

MEMORANDUM^** 

FACTS

In May of 1985, Robert Pitman was working the "extra board" for the Burlington Northern Railroad in Whitefish, Montana which meant that he was called to fill in for senior employees who held regular jobs with the railroad. On May 15, 1985, Pitman was called to fill a temporary vacancy for an afternoon yardmaster position. The position was temporarily vacant because the person who normally filled it was out of town on personal business. An employee with greater yardmaster seniority than Pitman, Robbie Seward, was filling a regularly assigned day switchman position so was unavailable to take the afternoon yardmaster position. Pitman also filled the position on May 16.

On the afternoon of May 16, Pitman and Seward agreed that Seward would continue working her regular switchman job and that Pitman could fill the yardmaster position on Friday, May 17. However, when the yardmaster job reverted to a day job on Saturday, May 18th, it was Seward's understanding that she would have to take the yardmaster's position in order to protect her seniority.

On the morning of May 18, both Pitman and Steward reported to work for the yardmaster's position. Seward claimed she was entitled to the job because of her seniority and Pitman claimed that Seward had forfeited her seniority by failing to work the yardmaster position on May 17. The clerk resolved the issue by giving the position to Seward.

On May 20 Pitman filed a claim slip for the position. Trainmaster Robert Campbell, the senior Burlington Northern official at Whitefish, discussed the issue with Pitman and Seward. He determined that Seward was entitled to the position.

Pitman notified the union that he wished to pursue a grievance against Burlington Northern. During the months of May and June 1985, the union conducted an investigation into the incident. Robert Grafft, the local union chairman in Missoula, travelled to Whitefish. He reviewed Pitman's written claim and talked with Campbell, Seward and the chief clerk. He determined that Pitman's complaint was without merit. In addition, Glenn Keene, vice general chairman of the union, interviewed Campbell and Seward and reviewed the collective bargaining agreement. The union decided not to prosecute Pitman's grievance.

Pitman contends that he was not promptly notified of the union's decision not to pursue his grievance. In February 1986 the union notified Pitman by telephone that the union would not pursue his grievance. On June 3, 1986, that decision was restated in a letter to Pitman. By this time the 60-day deadline for appealing Burlington Northern's decision had run.

On November 17, 1986 Pitman brought an action for breach of the duty of fair representation against the United Transportation Union of America and Railroad Yardmasters of America. Pitman claimed that the union breached its duty by failing to adequately investigate and prosecute his grievance against Burlington Northern and by failing to notify him in a timely manner of its decision not to pursue his grievance, thereby preventing him from pursuing a grievance on his own behalf.

On November 22, 1989 the district court granted summary judgment in favor of the defendants on the issue of investigation of Pitman's grievance. The court denied summary judgment on the issue of whether defendant's alleged failure to notify Pitman of its decision in a timely manner constituted breach of the duty of fair representation. That issue was tried before a jury on July 22 and 23, 1990. After the close of evidence the district court granted a directed verdict for defendants on the ground that Pitman had not established that Burlington Northern had breached the collective bargaining agreement. Pitman appeals.

ANALYSIS

This court reviews the propriety of a directed verdict de novo. West America Corp., Inc. v. Vaughan-Bassett Furniture Co., 765 F.2d 932, 934 (9th Cir. 1985). We must view the evidence in the light most favorable to the nonmoving party. Blanton v. Mobil Oil Corp., 721 F.2d 1207, 1219 (9th Cir. 1983), cert. denied, 471 U.S. 1007 (1985). A directed verdict is proper where the evidence permits only one reasonable conclusion as to the verdict; it is inappropriate if there is substantial evidence supporting a verdict for the nonmoving party. Peterson v. Kennedy, 771 F.2d 1244, 1256 (9th Cir. 1985), cert. denied, 475 U.S. 1122 (1984).

The district court determined as a threshold matter that it was necessary for Pitman to establish that Burlington Northern had breached the collective bargaining agreement in order to find the union liable for failing to prosecute his grievance. Where an employee sues a union based on the union's failure to adequately prosecute an employer's alleged breach of the employment contract, it is necessary to show that the employer's actions violated the terms of the contract. See Chauffeurs, Teamsters and Helpers, Local. No. 391 v. Terry, 110 S. Ct. 1339, 1344 (1990); DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 166 (1983). A union member can bring an action against a union for breach of the duty of fair representation which does not involve a violation of an employment contract. In those cases, it is not necessary to show that an employer violated the employment contract in order to recover from the union. See Breininger v. Sheet Metal Workers International Local Union No. 6, 493 U.S. 67 (1989). However in the circumstances of the present case the district court was correct in its determination that Pitman was required to establish that the railroad violated the collective bargaining agreement in order to recover against the union.

The district court then found that railroad had not violated the collective bargaining agreement in awarding the temporary yardmaster position to Seward on Saturday, May 18. The evidence at trial established that Seward was working a regular morning shift as a switchman on May 15, 16 and 17. The available yardmaster position was an afternoon position that ran from 3 p.m. until midnight. Under the collective bargaining agreement, she was therefore considered unavailable for the temporary yardmaster position. Seward did take the yardmaster position on May 18 when it became a morning position. On that day she had not already worked a full shift when the opening became available. The district court was correct in finding that the collective bargaining agreement was not breached.

The judgment of the district court is AFFIRMED.