ten hours reviewing arbitrators' decisions to determine which arguments might be most effective. Donahue and Newborg revised and rewrote the brief a number of times before submitting it.
Plaintiff's primary contention is that Donahue and Newborg failed to introduce evidence at the arbitration hearing about the exception report generated by plaintiff's late clock out on March 24.
According to plaintiff, the fact that plaintiff generated an exception report establishes that he did not "tinker" with Boeing's time reporting system; thus, he argues, evidence of the exception report, if presented to the arbitrator, would have led to plaintiff's reinstatement.
It is true that an omission by a union may prove inadequate presentation of a grievance if there is "a demonstration that the omission damaged the grievance presentation." Findley, 639 F.2d at 959 (citing Hines v. Anchor Motor Freight, 424 U.S. 554, 568, 47 L. Ed. 2d 231, 96 S. Ct. 1048 (1976)). But it is doubtful that introduction of evidence regarding the exception report would have led the arbitrator to reinstate plaintiff. Exception reports are merely signals generated by Boeing's data collection system to draw attention to possible instances of falsification of time records. The fact that the computer system's automatic printout indicated that plaintiff had clocked out late is immaterial to what the arbitrator correctly referred to as the "crucial question," that is, "whether the late clock-out under all of the circumstances was improper in that it was designed to enable [plaintiff] to be paid for time that he did not work."
Even under plaintiff's version of events on March 24, he did not clock out when he left the Boeing plant for the retirement party at 4:30, but rather upon returning from the retirement party, over two hours later. Plaintiff had not completed his assigned shift when he left the Boeing plant for the party, but clocking out at 6:43 enabled him to be paid for a full work day, and therefore, enabled him to be paid for time that he did not work.
Moreover, even if introduction of evidence concerning the exception report would have produced a different result at arbitration, Donahue and Newborg's failure to introduce it was no more than mere negligence. As the Findley court noted, "mere ineptitude or negligence in the presentation of a grievance by a union has almost uniformly been rejected as the type of conduct intended to be included within the term 'perfunctory.'" Findley, 639 F.2d at 960, n.2. The duty of fair representation does not "hold lay union representatives to the demanding tests applied to a trained trial lawyer." Findley, 639 F.2d at 958. Thus, "if the [arbitrator] had the essential facts before it, a decision adverse to the employee does not establish a breach of the duty of fair representation, even if a court would have come to a different conclusion in passing on the merits of the grievance." Findley, 639 F.2d at 961.
In his complaint, plaintiff also alleges that several other actions by the UAW and Local 1069 constituted breaches of their duty of fair representation: denial of plaintiff's request for representation by an attorney hired by himself or by the UAW or Local 1069; advice to plaintiff to remain silent at the March 31 suspension hearing; and Newborg and Donahue's failure to call a number of additional witnesses before the arbitrator, including Steward McDevitt, other committeemen, and employees affected by the "sensitive" grievances filed by plaintiff.
But plaintiff's allegations are without merit. As the Court of Appeals for the Ninth Circuit has stated, "no court has adopted the rule that employees are entitled to independently retained counsel in arbitration proceedings, or that the exclusion of such attorneys from arbitration violates the duty of fair representation." Castelli v. Douglas Aircraft Co., 752 F.2d 1480, 1483 (9th Cir. 1985). The advice to plaintiff to remain silent at the March 31 hearing seems to have been reasonable and, in any event, was not prejudicial, since plaintiff presented his story in his own words before the Board of Review and the arbitrator. See Stevens v. Highway, City & Air Freight Drivers, 794 F.2d 376, 377 (8th Cir. 1986) (stating that "advice to plaintiff not to speak unless spoken to could well have been proper strategy.") Finally, there is no evidence to support plaintiff's claim that the additional witnesses he identifies would have changed the result at arbitration. Newborg and Donahue's choice of witnesses was reasonable and did not rise to the level of negligence, much less constitute "perfunctory" processing of plaintiff's claim.
In Count III of his complaint, plaintiff alleges that Boeing, the UAW and Local 1069 conspired to terminate him, particularly in a meeting on March 28, 1986, between Boeing Labor Relations Manager Al Mansi, Ciammaichelli, Newborg, and Local 1069 Financial Secretary/Treasurer Robert Methvin. Plaintiff describes in great detail previous political battles he has had with other officials of Local 1069,
as well as grievances he filed on behalf of Local 1069 which he believes were particularly "sensitive" to Boeing.
But the only facts he alleges regarding the "conspiracy" are that Mansi told Ciammaichelli, Newborg and Methvin on March 28 that there was evidence plaintiff had attended a retirement party "off the clock", and that Ciammaichelli, Newborg and Methvin did not inform plaintiff of what Mansi had told them until just before the March 31 meeting.
In their deposition testimony and/or affidavits, Mansi, Newborg and Methvin all state that the members of Local 1069 had nothing to do with the decision to terminate plaintiff, and that the union members did not make any suggestions or statements regarding what action should be taken against plaintiff at the March 28 meeting.
As in Brown v. Trans World Airlines, Inc., 746 F.2d 1354 (8th Cir. 1984), these statements denying any union involvement or collusion are "sufficient to put the burden on plaintiff to come forward with admissible evidence from which a reasonable finder of fact could find collusion. Plaintiff [has] failed to come forward with any such evidence." Brown, 746 F.2d at 1360.
Boeing's motion for summary judgment as to Counts II and III of plaintiff's complaint will be granted. Boeing's motion to limit damages and strike jury trial demand will be denied as moot.
AND NOW, this 13th day of January, 1989, consideration of the motions of defendant Boeing Vertol Company for summary judgment and to limit damages and strike jury trial demand, and of the supporting and opposing memoranda, it is hereby ORDERED that:
1. Defendant's motion to limit damages and strike jury trial demand is DENIED as moot.
2. Defendant's motion for summary judgment as to Counts II and III of plaintiff's complaint is GRANTED and judgment is entered against plaintiff and in favor of defendant.