
USCA1 Opinion

	




          February 4, 1993  UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1796                                RALPH J. MILLER, JR.,                                Plaintiff, Appellant,                                          v.                        UNITED STATES POSTAL SERVICE, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                _____________________               Charles  G. Douglas III, with whom Douglas & Douglas, was on               _______________________            _________________          brief for appellant.               William B.  Peer, with whom  Barbara L. Camens,  Barr, Peer,               ________________             _________________   ___________          Cohen  & Camens, were on brief for appellee National Rural Letter          _______________          Carriers' Association (NRLCA).               Gretchen Leah Witt, Assistant United States Attorney, Chief,               __________________          Civil  Division,  with  whom  Jeffrey R.  Howard,  United  States                                        __________________          Attorney, was on brief for appellee U.S. Postal Service.                                 ____________________                                 ____________________                    TORRUELLA, Circuit  Judge.  Appellant Ralph  J. Miller,                               ______________          appeals  from a  summary judgment  in an  action under  39 U.S.C.            1208(b)  (1980)1  for breach  of  contract  against the  United          States Postal Service  ("Postal Service"), and for breach of duty          of  fair   representation  against  the   National  Rural  Letter          Carrier's  Association  (the  "Union").    This  joint  cause  is          commonly referred  to as  a "hybrid"  suit.  See,  e.g., Reed  v.                                                       ___   ____  ____          United Transp.  Union, 488 U.S. 319,  327 (1989).  We  affirm the          _____________________          district court's judgment.                    Appellant, a rural carrier, lost his job at the  Postal          Service  on  May  21,  1986.    As a  member  of  the  collective          bargaining  unit,  he  filed  a grievance  under  the  collective          bargaining agreement  between the  Union and the  Postal Service.          The  matter culminated  in arbitration,  in which  the arbitrator          found that the Postal Service fired appellant without just cause,          and ordered  reinstatement and lost earnings.   Approximately one          month after this ruling,  the Postal Service reinstated appellant                                        ____________________          1  Section 1208(b) provides:                      Suits for violation of  contracts between                      the   Postal   Service   and    a   labor                      organization representing  Postal Service                      employees,  or  between  any  such  labor                      organization,  may  be  brought   in  any                      district  court  of  the   United  States                      having   jurisdiction  of   the  parties,                      without   respect   to   the  amount   in                      controversy.          Because this language  is identical in  all relevant respects  to          that of   301(a) of the Labor Management Relations Act, 24 U.S.C.            185(a) (West  Supp. 1992), cases interpreting  the latter apply          to   1208(b).  Bowen v. United States Postal Serv., 459 U.S. 212,                         _____    __________________________          232 n.2 (1983) (White,  J., concurring in part and  dissenting in          part).          but  refused to afford  him back pay.   The Postal  service based          this  refusal  on appellant's  alleged  failure  to mitigate  his          damages  by  attempting to  obtain  other  employment during  the          thirteen-month  period of  suspension as  required by  the Postal          Service's Employee and Labor Relations Manual (the "Manual").                    Consequently,  appellant filed a new grievance for back          pay which  proceeded through the various  contractual steps until          it reached national arbitration  on July 28, 1989.   In addition,          on  July  10, 1990,  appellant filed  the  present action  in the          United States  District Court for the District  of New Hampshire.          The Union subsequently withdrew the grievance from arbitration.                    Appellant  initially proceeded  pro  se in  his federal                                                    ___  __          court  action against  the  Postal Service  and  the Union.2    A          series   of   amendments   followed   his   original   complaint.          Essentially, he alleged that:   (1) the Postal Service  failed to          abide  by  the arbitration  award,  and  the Manual's  mitigation          requirements  conflict  with  the  provisions of  the  collective          bargaining agreement; and (2) the  Union was "either unwilling or          unable to recover [his] money."                      The  Postal Service counterattacked with its own motion          for  summary  judgment,  which  the  Union  joined.   The  motion          asserted   that:     (1)  the   collective  bargaining   contract          incorporated the Manual by reference;  (2) the Manual required  a                                        ____________________          2    Although in  one  of  the  motions  to amend  his  complaint          appellant  stated that his  "only dispute  . .  . [was]  with his          employer," he later filed a motion for summary  judgment accusing          the Union of breaching its duty of fair representation by failing          to "follow up on a lead" that he provided.                                         -3-          suspended  employee to  mitigate  damages  by seeking  employment          during  suspension  or discharge;  and  (3)  appellant failed  to          mitigate his damages.  Additionally, the Union asserted  that its          decision to withdraw appellant's grievance for back pay "was made          for rational, nondiscriminatory reasons."                    Appellant,  by   this  time  represented   by  counsel,          retorted  that the Postal Service was "not entitled to a judgment          as  a matter  of law  because the  defense now  asserted was  not          raised  in the  underlying  arbitration."   With  respect to  the          Union, appellant maintained that  it had treated his claim  "in a          perfunctory  manner"  and that  this  conduct,  coupled with  the          three-year delay  during which it  failed to inform  appellant of          alternate  modes of relief, amounted  to a breach  of the Union's          duty of fair representation when it withdrew the grievance.                    The district  court's summary  judgment for  the Postal          Service  is  narrowly tailored  and  deserves our  approval.   To          succeed  in a hybrid  breach of contract  and fair representation          claim,  appellant  must  establish  not only  that  the  employer          breached  the contract, but also that his union breached its duty                                      ____          of  fair representation.  Teamsters  v. Terry, 494  U.S. 558, 564                                    _________     _____          (1990); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71                  _____    __________________________          (1976).    These  claims  are "inextricably  linked,"  Demars  v.                                                                 ______          General  Dynamics Corp.,  779 F.2d  95, 97  (1st Cir.  1985), and          _______________________          failure to prove  either one  of them results  in failure of  the          entire hybrid action.   See  DelCostello v.  Teamsters, 462  U.S.                                  ___  ___________     _________          151, 164-65 (1983).                                         -4-                    The district  court found  no violation of  the Union's          duty toward appellant, and  we agree.  A Union breaches this duty          "only when  [its]  conduct  toward  a member  of  the  collective          bargaining unit  is arbitrary, discriminatory, or  in bad faith."          Vaca v. Sipes,  386 U.S.  171, 190 (1967);  Williams v.  Sea-Land          ____    _____                               ________     ________          Corp.,  844 F.2d  17,  19 (1st  Cir.  1988).   The Supreme  Court          _____          explained  that a  union's actions  are arbitrary   "only  if, in          light  of the  factual and  legal landscape  at the  time of  the          union's actions, the union's  behavior is so far outside  a 'wide          range of reasonableness' as  to be irrational."  Air  Line Pilots                                                           ________________          Ass'n Int'l v. O'Neill,  111 S. Ct. 1127, 1130  (1991) (citations          ___________    _______          omitted).  Courts may not substitute their own views for those of          the  union.     "[A]ny  substantial  examination   of  a  union's          performance  . . .  must be  highly deferential,"   id.  at 1135,                                                              ___          because  of  the  well-recognized  need  to  allow  unions  ample          latitude in the performance of their  representative duties.  See                                                                        ___          Steelworkers  v. Rawson, 495 U.S. 362, 374 (1990); Vaca, 386 U.S.          ____________     ______                            ____          at 191-93.  Thus, we have  held that a union's mere negligence or          erroneous  judgment will not constitute  a breach of  the duty of          fair representation.   Condon v. United  Steelworkers Local 2944,                                 ______    _______________________________          683 F.2d 590, 594 (1st Cir. 1982).  We also allow the union great          latitude in determining the merits of an employee's grievance and          the level of effort it will expend to pursue it.  Torres-Matos v.                                                            ____________          St.  Lawrence Garment Co., 901  F.2d 1144, 1148  (1st Cir. 1990);          _________________________          Williams, 844 F.2d at 21.            ________                    Accordingly, failure to take a grievance to arbitration                                         -5-          constitutes a breach of the duty of fair representation only when          the  union's otherwise  good faith  decision is  arbitrary.   See                                                                        ___          Col n-V lez v. Puerto Rico Marine Management, Inc., 957 F.2d 933,          ___________    ___________________________________          941  (1st Cir. 1992); see  also Vaca, 386  U.S. at 191 (employees                                _________ ____          have no absolute right to have grievance taken to arbitration).                    The undisputed facts establish that the Union initially          supported appellant's grievance regarding his back-pay claim.  It          processed the grievance through  the various contractual steps up          to national arbitration.  Although  the Union knew of appellant's          failure to  mitigate, the  Union  believed that  a genuine  issue          existed  regarding  whether  the  mitigation   requirements  were          "punitive, unreasonable and in  conflict with other provisions of          the  National   Agreement."    It  thus   sought  arbitration  of          appellant's  claim and continued to investigate the matter.  As a          result of  this investigation, the Union  discovered that several          arbitrators    had    found   mitigation    requirements   valid.          Accordingly,  it decided that it was in everyone's best interests          to withdraw  the grievance from  arbitration.3  Before  doing so,          however, it attempted, unsuccessfully, to negotiate a  settlement          with the Postal Service.  On November 8, 1990, the Union withdrew          the grievance.                    Given these  undisputed facts, we cannot  conclude that          the Union's actions were irrational.  Furthermore, nothing in the                                        ____________________          3    To  continue a  meritless  grievance  adversely affects  the          Union's  credibility and finances.  See Williams, 844 F.2d at 21;                                              ___ ________          Berrigan  v. Greyhound Lines, Inc.,  782 F.2d 295,  298 (1st Cir.          ________     _____________________          1986).                                         -6-          record  intimates  that  the  Union  acted  in  a  perfunctory or          arbitrary  manner or  in  bad faith.    If anything,  the  record          exhibits diligence  and  an attempt  to make  the best  out of  a          difficult situation.   If the  Union failed, it  was not  through          lack  of  effort, but  rather  because  appellant's claim  lacked          merit.                    Finally,  at oral argument appellant argued principally          that  the  Union violated  its  duty  of  fair representation  by          failing  to  properly  advise  him  of  the  Manual's  mitigation          requirements.   This  is  a new  argument,  never raised  in  the          district  court.   Appellant's  change in  direction  has been  a          recurrent theme throughout this litigation.  See, e.g., Miller v.                                                       ___  ____  ______          United States Postal Serv.,  792 F. Supp. 4, 6 n.4 (D.N.H. 1992).          __________________________          If the  argument  was mistakenly  overlooked  during the  pro  se                                                                    ___  __          stages  of  the  case,  appellant  had  ample  opportunity,  once          represented by counsel, to correct any  earlier deficiencies.  It          is now  too late to do  so; we cannot consider  issues raised for          the first time on appeal.   G.D. v. Westmoreland Sch.  Dist., 930                                      ____    ________________________          F.2d  942, 950 (1st Cir.  1991); Johnston v.  Holiday Inns, Inc.,                                           ________     __________________          595 F.2d 890, 894 (1st Cir. 1979).4  After considering  the other          issues raised  by appellant, we find  them equally insubstantial.          Thus,  we need go no further; as  appellant failed to make a case                                        ____________________          4   Notably,  appellant's  new  argument  appears to  lack  merit          anyway.   The failure to  adequately notify its  members of their          burden under the Collective  Bargaining Agreement does not amount          to  more  than  negligence.   Mere  negligence  or  a mistake  in          judgment is  insufficient to establish  a breach  of the  union's          duty."  Jenkins  v. Great  Lakes Plastics, Inc.,  119 LRRM  (BNA)                  _______     ___________________________          2191 (E.D. Mich. 1985).                                              -7-          against the  Union, the  symbiotic  nature of  the hybrid  action          requires  that  we also  reject  the  action against  the  Postal          Service.                    Affirmed.  Costs to appellees.                    ________                                         -8-
