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Hess v. San Bernardino Professional Firefighters Union11/6/2002
ontrol over the grievance procedure, that the decision not to continue providing representation to him was without a rational basis or devoid of honest judgment, and that plaintiff could not show that he would have prevailed on his grievance if the Union had continued to represent him.
For example, the Union argues that the complaint does not sufficiently allege that the Union's actions were taken arbitrarily, discriminatorily, or in bad faith. The Union is of course correct that a union does not violate the duty of fair representation unless it acts arbitrarily, discriminatorily, or in bad faith. (Vaca v. Sipes, supra, 386 U.S. 171, 190; Lane v. I.U.O.E. Stationary Engineers (1989) 212 Cal.App.3d 164, 170, 174.) As Lane explains, a union is not required to process all grievances, but rather is entitled to sort out the meritless complaints from the justifiable ones. (Lane v. I.U.O.E. Stationary Engineers, supra, 212 Cal.App.3d 164, 170, 169-170.)
The Union argues that the complaint here fails to allege facts showing arbitrary, discriminatory or bad faith actions. But the complaint does allege that the Union's actions were arbitrary and discriminatory, and that the Union was motivated by personal animosity towards plaintiff. " eckless disregard of the rights of an individual member constitutes an `arbitrary' failure to represent him. [Citation.]" (Woods v. Graphic Communications (9th. Cir. 1991) 925 F.2d 1195, 1203.) In Woods, the court found that racial discrimination in grievance procedures is a violation of the duty of fair representation: " he district court found intentional and knowing failure to file grievances on behalf of Woods concerning racial harassment. While it did not ignore Woods altogether, the Union's treatment of his harassment grievances never rose above the most informal level. We agree with the district court that the Union violated the duty of fair representation." (Ibid.)
The Union's arguments involve primarily factual issues that are unsuitable for determination as a matter of law. For example, our record does not contain a copy of the memorandum of understanding which contains the grievance procedure, a copy of the grievance filed by the Union on plaintiff's behalf, if any, or any grievances filed by plaintiff himself. Nor does it contain facts showing why representation was declined.
At most, the Union's arguments show that the complaint itself had demurrable defects. Since the prior demurrer is not in our record, we do not know if those issues were raised previously or not. Nor did the Union's pretrial motion for judgment on the pleadings raise any of these issues. Accordingly, we decline to consider them for the first time on appeal on an inadequate record.
SUMMARY AND CONCLUSION
Plaintiff is clearly precluded from changing his position and arguing in this action that he was fit for his job and would have retained it if only the Union had provided him with effective representation. But, as discussed above, he is not precluded from arguing that the Union breached its duty of fair representation and damaged him. While there are significant damages issues raised by his claims, they cannot be resolved as a matter of law. The trial court erred by finding that the Union's affirmative defenses were dispositive without considering the facts of the case. Accordingly, the case should proceed to trial.
DISPOSITION
The judgment is reversed. Mr. Hess is to recover his costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur:
RCIHLI J.
WARD J.
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