                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-1914
                                   ___________

Daniel R. Baird,                      *
                                      *
            Appellant,                *
                                      *
      v.                              *    Appeal from the United States
                                      *    District Court for the
Burlington Northern and Santa Fe       *   District of Minnesota
Railway Company,                      *
                                      *    [UNPUBLISHED]
            Defendant,                *
                                      *
United Transportation Union,          *
                                      *
            Appellee.                 *
                                 ___________

                             Submitted: November 16, 2001
                                Filed: November 29, 2001
                                 ___________

Before BYE and BEAM, Circuit Judges, and GOLDBERG,1 Judge.
                              ___________

PER CURIAM.

       Daniel Baird sued his employer, Burlington Northern and Sante Fe Railway
Company (BNSF), and his union, the United Transportation Union (UTU), claiming
entitlement to benefits under a severance agreement that closed a railway terminal in

      1
       The Honorable Richard W. Goldberg, Judge, United States Court of
International Trade, sitting by designation.
Staples, Minnesota, in 1994. Baird’s claims against BNSF were quickly dismissed,
but he proceeded against the UTU alleging a breach of the duty of fair representation
under the Railway Labor Act and a claim under Minnesota law for intentional
infliction of emotional distress (IIED). The district court2 granted UTU’s motion for
summary judgment on both claims and we affirm.

       Assuming dubitante that the UTU owed Baird a duty to represent him in his
grievance proceeding against BNSF, we hold that the UTU did not breach that duty.
A breach of the duty of fair representation occurs only when the union’s conduct is
“arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190 (1967);
see Peters v. Burlington Northern R.R. Co., 931 F.2d 534, 538 (9th Cir. 1991)
(applying this standard in a Railway Labor Act case). A union member faces a
considerable burden in proving breach of duty. “Mere negligence, poor judgment or
ineptitude by a union is insufficient to establish a breach of the duty of fair
representation.” Buford v. Runyon, 160 F.3d 1199, 1202 (8th Cir. 1998). Baird’s
proof of breach is largely based on a dispute with the UTU over the proper
interpretation of the severance agreement and his entitlement to benefits thereunder.
The UTU’s considered opinion that Baird was ineligible to receive benefits falls well
short of conduct that is “arbitrary, discriminatory, or in bad faith.” Vaca, 386 U.S.
at 190. Baird’s additional arguments that the UTU failed to investigate his promotion
to Grand Forks, North Dakota three weeks before the severance agreement was
implemented; reconsidered the claims of other employees but not his; and certified
only a few employees as eligible for benefits likewise fail to persuade us that the
UTU breached any duty it may have owed him.

     Baird’s IIED claim against the UTU lacks merit. To prevail, Baird must at a
minimum show that the UTU’s conduct was extreme and outrageous, Hubbard v.


      2
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.

                                         -2-
United Press Int’l, Inc., 330 N.W.2d 428, 438-39 (Minn. 1983), which means conduct
that is “so atrocious that it passes the boundaries of decency and is utterly intolerable
to the civilized community.” Haagenson v. Nat’l Farmers Union Property & Cas. Co.,
277 N.W.2d 648, 652 n.3 (Minn. 1979). We think it perfectly obvious that Baird
cannot meet this formidable burden. Even considering all of Baird’s evidence in a
favorable light, no reasonable person could conclude that the UTU’s mere refusal to
represent Baird during his BNSF grievance was utterly intolerable in a civilized
society.

      We affirm the judgment of the district court in all respects.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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