Dennis John Lewis, A/K/A Richard Kennedy v. Greyhound Lines-East

555 F.2d 1053, 181 U.S. App. D.C. 116, 95 L.R.R.M. (BNA) 2449, 1977 U.S. App. LEXIS 13434

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 12, 1977
• Docket: 76-1583
• Status: Published

Opinions

PER CURIAM:

In this suit under Section 301. of the Labor Management Relations’ Act,¹ appellant contended that he was wrongfully discharged by Greyhound Lines-East (Employer) and that the Amalgamated Transit Union (Union) breached its duty of fair representation in the processing of his grievance. Appellant sought, among other things, to overturn the award in arbitration sustaining his discharge. This appeal is taken from the order of the District Court, granting motions to dismiss by the Employer and the,Union. We affirm, largely on the basis of the opinion of the District Court (Pratt, J.).² Through a brief highlight of the basic, issues, w.e would like to. exemplify various points of agreement with the District Court.

The basic reason for appellant’s discharge is- that he abandoned his job. In brief, he refused to return to his job after being-told that he must attend a disciplinary meeting with the Employer without a Union representative. After a time he located the Union President, who also told him he was not entitled to a Union representative at all possible disciplinary meetings (although the Union President did accompany appellant to all Such meetings). After a discharge en-: sued,'appellant and the Union instituted a grievance and prosecuted it through arbitration. As noted, the arbiter sustained the discharge.

We emphasize at the outset that¹ this, appeal does not call upon us to review the merits of the discharge. The collective bargaining agreement-provided for arbitration as the. exclusive grievance mechanism; where arbitration is so specified in the collective bargaining agreement, courts must respect this and accept the award as final and binding in the absence of procedural flaws indicating the possibility of a miscarriage of justice. An award can be set aside if the union breaches its duty of fair representation in connection with the arbitration proceedings, Hines v. Anchor Motor Freight,³ but, as the District Court properly found here, see infra, no breach of duty occurred. Given the absence of any procedural flaws in an arbitral award agreed by Union and Employer to be exclusive and final, it is hardly the role of an appellate court to go behind the arbiter’s findings and retry this discharge complaint on the facts at this level. We thus affirm the enforcement of the finality provision as respects the arbitration here.⁴

As evidence that the Union breached its duty of fair representation, the appellant relied heavily upon the fact that the President of the Union told him that he was not entitled to a Union representative at the first possible disciplinary meeting. However, the statement of the Union President was based upon “an interpretations manual of the collective bargaining agreement,” thus detracting, in the judgment of the District Court, from the allegations of bad faith that appellant must set out to show the breach of the Union’s duty. The District Court also noted that the events in the case occurred in 1973, prior to the decision in 1975, NLRB v. Weingarten, Inc.,5 holding lack of union representation at disciplinary meetings to be an unfair labor practice.

Appellant also denominated, as further evidence of bad faith, the Union’s failure to file an action with the NLRB after the arbitration. (The Union pressed appellant's discharge to arbitration, where it provided counsel through two days of proceedings). The District Court very properly responded that a union does not have to advance to the NLRB every grievance of its members. It possesses discretion to pursue only those grievances it fairly considers to be meritorious. In addition, the District Court noted, appellant, cannot complain of the running of the statute of limitations on the NLRB appeal since the Union disclosed its intention to challenge only the wrongful discharge, and not the representation issue.

In sum, the District Court correctly decided not to set aside the arbitration award. Since the representation of the Union did not undermine the integrity of the arbitration proceedings, the arbitration award should be enforced as final and binding.

The order of the District Court, granting the motions to dismiss, is hereby

Affirmed.

1 . 29 U.S.C. § 185.

2 . Lewis v. # 1 Greyhound Lines—East, 411 F.Supp. 368 (D.C.D.C.1976).

3 . 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976).

4 . Even were we to reach the merits for any reason, it does not appear to us that the arbiter was arbitrary in sustaining the discharge. The arbiter essentially found that in his failure to report to work after being asked to attend a disciplinary meeting the appellant failed “to recognize the right of the Employer to reasonably control the activities of its employees. .” Opinion and Award', Appendix at 31. In other words, it is not the legitimate prerogative of the employee to disobey a supervisory order, even if he believes that his contractual rights are violated. Lewis should have gone to the supervisor’s office immediately. If he deemed that action improper, he should have pursued his remedy through the established grievance procedure. Since he refused to report to work or to the meeting for a four-day period, during only one of which days, 7 August 1973, does it appear that he could not do so because a meeting with the Employer could not be arranged, Lewis’ absence from work was indeed a voluntary absence and could provide basis for a lawful discharge. In addition, the arbiter found that the disciplinary meeting, which the Union President attended, turned out to be “incomplete and ineffective” due to the appellant’s “attitude,” e. g., his unfounded charges of lying. According to the arbiter, appellant failed “to heed the advice of his Union representative whose intercession he had requested, when the latter attempted to handle the dispute intelligently and correctly.” Ibid.

5 . 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171. Moreover, we might point out, the Board of Arbitration considered Weingarten and found it inapplicable, i. e., appellant was provided union representation. Opinion and Award; App. at 31.