NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG14712006)
Manuel Williams (Williams) was employed as a bus operator by Alameda-Contra Costa Transit (AC Transit) and was a member of Amalgamated Transit Union Local 192 (Local 192), the exclusive labor representative for AC Transit employees. Faced with discharge for alleged misconduct, Williams entered into a last chance agreement which required that he complete a counseling program, and provided that noncompliance would result in termination (Agreement). Williams's noncompliance with the Agreement led to an expedited arbitration and his job termination. Williams sued Local 192 alleging it breached its duty of fair representation by failing to notify him of the arbitration and failing to adequately investigate and to explain his noncompliance to the arbitrator. Local 192 filed a motion for summary judgment, which was granted. Williams seeks reversal, claiming there are triable issues of material fact as to the adequacy of notice of the hearing, and that the court disregarded evidence that a Local 192 representative told his employer to fire him. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
AC Transit employed Williams as a bus driver. Williams was a member of Local 192, the exclusive bargaining representative for AC Transit bus operators, which had a collective bargaining agreement with AC Transit providing for a multi-level grievance procedure. From June through October 2011, AC Transit cited Williams on five separate occasions for various infractions. On January 23, 2012, Williams received his sixth disciplinary charge notice in a seven-month period for violating multiple AC Transit operating rules. Just eight days later, on January 31, he received his seventh disciplinary charge for additional rules violations, including refusing a direct order from a supervisor, failing to abide by instructions, failing to notify the Operations Control Center when deviating from his scheduled route, failing to comply with route procedures, driving with his dome lights off, and driving without a seat belt. Both the January 23 and January 31 letters notified Williams that AC Transit intended to impose discipline up to and including discharge.
All further date references are to dates in 2012, unless otherwise indicated.
Pursuant to the collective bargaining agreement, to address the January 23 and January 31 charges, Local 192 requested first-level hearings. Local 192 Assistant Business Agent Danny Marshall (Marshall) was responsible for providing Williams with notice of the expedited arbitration hearings and representing him. The hearings on both letters were conducted on February 15; Williams, represented by Marshall, attended and testified on the issues raised by both letters. As to the January 23 charges, the hearing officer heard testimony, considered the documentation and accepted Local 192's position: The January 23 letter of charges was rescinded in its entirety. However, the hearing officer sustained the January 31 letter of charges and "the intent to terminate in keeping with progressive discipline." The officer reached the decision, in part, based on a surveillance video and Williams's testimony in which he admitted some of the alleged conduct. Before the hearing officer's decision was rendered, Local 192 and AC Transit reached an agreement that Williams would be allowed to participate in an employee assistance program (EAP) and to sign a last chance agreement. The Agreement required that, within 14 days of its execution, Williams enroll in and then complete the EAP; serve a ten-day suspension; and complete a twelve-month probationary period without any rule violations. Failure to comply with the Agreement would result in his immediate suspension and—upon upholding the charges after an expedited arbitration hearing—immediate termination without appeal. The hearing officer decided that—as agreed by Local 192 and AC Transit—the termination would be held in abeyance, but would be effective if Williams failed to enter the EAP by April 15 or to sign the Agreement. Williams agreed to "cooperate and comply with all aspects of the mandatory EAP."
On May 9, AC Transit gave Williams and Local 192 notice that Williams did not comply with the EAP and the Agreement, that he was suspended and—if the charge was upheld after an expedited arbitration—he would be terminated without appellate rights. Local 192 filed a timely request for an expedited arbitration hearing. On June 22, Marshall sent Williams, by certified mail, notice of a June 28 hearing, but it was misaddressed to "P.O. Box 5090, Alameda, CA 94501." Because Williams did not appear, the hearing was continued to July 26. On July 13, 2012, Marshall sent Williams, by certified mail, notice of the July 26 hearing correctly addressed to "P.O. Box 6483, Oakland, CA 94603." The notice was returned to Local 192 on August 14, unopened and stamped "Unclaimed" by the U.S. Postal Service as of August 9. A similar notice of the July 26 expedited arbitration sent by AC Transit on July 12 to Williams's correct mailing address via certified mail—a copy of which Local 192 received—was likewise returned to sender on August 3, also stamped "Unclaimed." It is undisputed that Williams never contacted Marshall in response to the letter.
Marshall sent a February 15, 2012 letter to Williams at the Oakland address notifying him of a hearing. In response to an interrogatory, Williams admitted that his address between May 9, and July 26, was P.O. Box 6483, Oakland, CA 94603.
Williams did not appear at the July 26 expedited arbitration hearing. Marshall appeared on Williams's behalf and objected to proceeding without him, but the arbitrator overruled the objection, reasoning that proper notice of the hearing had been provided in accordance with his order. At the hearing, AC Transit presented evidence that Williams had not complied with his last chance agreement: the Claremont Employee Assistance Program director's letter stating that Williams had not signed an information-release form—a prerequisite to EAP participation—and therefore he could not provide further information. The letter was admitted in evidence—over Marshall's hearsay objection—under the business records exception. A majority of the arbitrators found Williams did not begin the EAP as required by the Agreement, sustained the charge that Williams violated the Agreement and terminated his employment. AC Transit terminated Williams's employment effective July 26.
The neutral and AC Transit arbitrators agreed; the Local 192 arbitrator dissented.
Following his termination, Williams filed suit against Local 192 in Alameda County Superior Court. In the operative first amended complaint (complaint), Williams asserted a single cause of action for breach of the duty of fair representation. Among other things, he alleged that Local 192 failed to provide notice of the July 26 expedited arbitration, in violation of his due process rights. He further alleged he was wrongfully discharged and that Local 192 failed to investigate his grievance fully and to present evidence on his behalf at the July 26 expedited arbitration. Williams sought compensatory and punitive damages as well as attorney fees and costs.
Local 192 moved for summary judgment, or in the alternative, summary adjudication. It argued that, as a matter of law, Williams could not establish Local 192 breached its duty of fair representation. Local 192 contended that it was not responsible for Williams failing to claim his mail, that it adequately represented Williams at the expedited arbitration, and that there was no evidence of discriminatory or bad faith conduct on its part. In the alternative, Local 192 sought summary adjudication as to the claims for punitive damages and attorney fees.
Opposing the motion, Williams claimed there were triable issues of fact precluding entry of summary judgment. He stated that he did not receive notice of the July 26 expedited arbitration hearing and that Local 192's letter notifying him of the hearing was returned with the mailing address partially covered by a label indicating the letter was "not deliverable as addressed." Williams asserted that his Local 192 representative, Marshall, did not call to notify him about the hearing and that Local 192's representatives had refused to communicate with his attorney. He also alleged that, at the February 15, hearing, Marshall and other Local 192 representatives urged an AC Transit officer to fire him—a claim not included in the complaint.
The trial court granted Local 192's motion for summary judgment. The court concluded there were no triable issues of material fact as to Local 192's attempts to notify Williams about the July 26 arbitration or its representation of Williams at the arbitration. The court discounted the claim that at the February meeting Local 192 representatives urged AC Transit to fire Williams: The conduct was not alleged in the complaint, and there was no evidence that AC Transit's termination decision was influenced by the event.
Following entry of judgment, Williams timely appealed.
I. Legal Principles
a. Standard of Review
We conduct a de novo review to determine whether triable issues of material fact exist. (Wiener v. Southcoast Childcare Ctrs., Inc. (2004) 32 Cal.4th 1138, 1142 [order granting summary judgment]; Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201, 206 [same].) We apply the same general principles which guided the trial court: We construe respondent's arguments strictly and appellant's liberally, resolving doubts in appellant's favor. (Lonicki v. Sutter Health Central, supra, 43 Cal.4th at p. 206; Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535; Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502; see Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 764 ["On appeal from a grant of summary judgment, we review and recite the evidence in the light most favorable to the nonmoving party"]; see also Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 877 [because summary judgment standards are "far different from applying the substantial evidence test that often governs on appeal," even though it may appear that the trial court took a "reasonable" view of the evidence, "summary judgment cannot properly be affirmed unless a contrary view would be unreasonable as a matter of law in the circumstances presented"].) We independently determine the construction and effect of the facts presented to the trial judge as a matter of law. (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1515; see Kolodge v. Boyd (2001) 88 Cal.App.4th 349, 355-356; Environmental Protection Information Ctr. v. California Dept. of Forestry & Fire Protection (1996) 43 Cal.App.4th 1011, 1015-1016; Rosse v. DeSoto Cab Co. (1995) 34 Cal.App.4th 1047, 1050; Kasparian v. AvalonBay Communities (2007) 156 Cal.App.4th 11, 24.)
b. Duty of Fair Representation
"The duty of fair representation is implicit in the National Labor Relations Act (NLRA) (29 U.S.C. § 151 et seq.) and is made explicit in some California labor laws. (See Vaca v. Sipes (1967) 386 U.S. 171, 177[.)] [Citation.] The NLRA does not apply to public employees [citation] . . . . [Citation.] Nevertheless, California courts recognize that any labor organization which acts as the exclusive representative of its members has such a duty. [Citations.] This is true whether the union becomes the employee's exclusive representative by statute or by contract. [Citation.] Members of such organizations have recourse for breach of that duty . . . through the courts." (Jones v. Omnitrans (2004) 125 Cal.App.4th 273, 283-284.)
"A union does not owe a duty of due care to its members [citation] . . . . Instead, unions owe a duty of fair representation to their members, and this requires them to refrain from representing their members arbitrarily, discriminatorily, or in bad faith." (Hussey v. Operating Engineers Local Union No. 3 (1995) 35 Cal.App.4th 1213, 1219 (Hussey).) The basis and scope of the duty was explained by the United States Supreme Court: "The duty of fair representation exists because it is the policy of the National Labor Relations Act to allow a single labor organization to represent collectively the interests of all employees within a unit, thereby depriving individuals in the unit of the ability to bargain individually or to select a minority union as their representative. In such a system, if individual employees are not to be deprived of all effective means of protecting their own interests, it must be the duty of the representative organization 'to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.' " (DelCostello v. International Broth. of Teamsters (1983) 462 U.S. 151, 164, fn. 14.) The duty of fair representation is not breached by mere negligence. (Castelli v. Douglas Aircraft Co. (9th Cir. 1985) 752 F.2d 1480, 1482 (Castelli).) A union is accorded wide latitude in the representation of its members, and courts are reluctant to interfere with a union's decisions in representing its members absent a showing of arbitrary exercise of the union's power. (Hussey, supra, 35 Cal.App.4th at p. 1219; see United Steelworkers of America v. Rawson (1990) 495 U.S. 362, 374; see also Galindo v. Stoody Co. (9th Cir. 1986) 793 F.2d 1502, 1515 (Galindo).)
Williams argues that there were disputed material factual issues and, therefore, the trial court erred by granting summary adjudication. His complaint alleged that Local 192 breached the duty of fair representation by failing to provide notice of the July 26 expedited arbitration, that he was wrongfully discharged and that Local 192 failed to investigate his grievance fully and to present evidence on his behalf at the July 26 expedited arbitration. On appeal, he also contends that Local 192 breached its duty when, at the February 15, disciplinary hearing, a Local 192 representative told AC Transit officials to "fire him."
We conduct a de novo review to determine whether triable issues of material fact exist. (Wiener v. Southcoast Childcare Ctrs., Inc., supra, 32 Cal.4th at p. 1142 [order granting summary judgment]; Lonicki v. Sutter Health Central, supra, 43 Cal.4th at p. 206 [same].) We apply the same general principles which guided the trial court. construing Union's arguments strictly and Williams's liberally, resolving and doubts in Williams's favor. We consider the undisputed facts in light of the operative law governing Union's duty of fair representation, cognizant that, in discharging that obligation, Union is accorded "wide latitude in the representation of its members, and courts are reluctant to interfere with a union's decisions in representing its members absent a showing of arbitrary exercise of the union's power." (Hussey, supra, 35 Cal.App.4th at p. 1219; see United Steelworkers of America v. Rawson, supra, 495 U.S. at p. 374; see also Galindo, supra, 793 F.2d at p. 1515.) Union does not breach it through mere negligence. (Castelli, supra, 752 F.2d at p. 1482.)
Our independent review reveals that there are no disputed, material facts and that applying the standards of fair representation, Local 192 did not breach its duty to Williams. Williams admited that his address between May and July, was "P.O. Box 6483, Oakland, CA 94603"—the address to which both the Local 192 and the AC Transit notices of the July 26 hearing were sent. Having sent timely notice to Williams's address, Marshall's failure to also call Williams does not constitute arbitrary, discriminatory, or bad faith conduct. Nor did Local 192 breach any duty by communicating directly with Williams—and not responding to Williams's private counsel's letters—pursuant to Local 192 policy. Local 192 president Yvonne Williams testified to the union practice of dealing only with its member and—while there was an ongoing grievance—not communicating with independently-retained counsel. Mindful of the wide latitude afforded unions in the representation of their members, and finding nothing arbitrary in Local 192's practice of communicating directly with the member, rather than with private counsel, we will not interfere with Local 192's decision and find no duty breached.
At the July 26 hearing, Marshall represented Williams. It is undisputed that—contrary to the directions in Marshall's July 13, letter—Williams never contacted Local 192 and therefore did not provide Local 192 with any evidence with which to fight the termination. We, therefore, reject Williams's claim that Local 192 failed to investigate his grievance fully and to present evidence on his behalf.
In his effort to defeat summary judgment, Williams contended that at a February 15 hearing, Marshall and possibly other Local 192 representatives, told AC Transit to "fire him." Whether or not the alleged statements were made, it is undisputed that, as a result of Local 192's representation of Williams, the February hearing was resolved in Williams's favor: The hearing officer rescinded the January 23 letter of charges, and his termination under the January 31 letter was held in abeyance to allow Williams to participate in the EAP—the outcome Williams accepted when he executed the Agreement. Nor is the alleged February 15, incident a material fact as to his termination. As the trial court found—and we agree—there was no evidence that the February event influenced AC Transit's decision to fire him in July, rather it was his failure to participate in EAP and violation of the Agreement.
Reviewing the record in its entirety we find that Local 192's conduct was not arbitrary, discriminatory, nor in any respect in bad faith. To the contrary, faced with a union member who was the subject of repeated rule violations, with progressive discipline imposed pursuant to the collective bargaining agreement, Local 192 achieved an outcome which allowed Williams to retain his position by performing under the last chance agreement. Instead—it is undisputed—he did not enroll in the EAP, did not comply with the Agreement and, pursuant to the terms which he accepted, he was terminated.
The judgment is affirmed. Respondent shall be entitled to recover its costs on appeal.
Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------