                                 ___________

                                 No. 94-3737
                                 ___________

Ira Beavers,                          *
                                      *
     Plaintiff - Appellant,           *
                                      *
     v.                               * Appeal from the United States
                                      * District Court for the
United Paperworkers                   * Eastern District of Arkansas.
International Union,                  *
Local 1741,                           *
                                      *
     Defendant - Appellee.            *
                                 ___________

                   Submitted:    September 13, 1995

                        Filed:   December 28, 1995
                                 ___________

Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                               ___________


LOKEN, Circuit Judge.


     This is an action by Ira Beavers against his former union, the United
Paperworkers International Union, Local 1741 ("UPIU"), alleging a breach
of UPIU's duty of fair representation because an arbitrator dismissed
Beavers's wrongful discharge claim as untimely.   The district court granted
summary judgment in favor of UPIU, and Beavers appeals.     Concluding that
UPIU's summary judgment motion does not resolve a disputed issue of fact --
whether UPIU processed Beavers's grievance in an arbitrary manner -- we
reverse.


                                     I.


     In February 1992, UPIU and Georgia-Pacific Corporation entered into
a new collective bargaining agreement ("CBA") covering production and
maintenance employees at Georgia-Pacific's North
Little Rock plant.   Section XX of the CBA contained the following time
limits for processing grievances to arbitration:


     1. A written grievance must be presented to Georgia-Pacific's
     Personnel Manager within five days.

     2. "[T]he Personnel Manager will meet with the Union Steward
     Committee within five (5) days . . . [and] will give a written
     answer within five (5) days of the meeting."

     3. The grievance may be appealed to the Plant Manager "within
     five (5) days of receipt of the above answer.        The Plant
     Manager . . . will meet within ten (10) days with the Union
     Steward Committee . . . and will answer within five (5) days."

     4. If the Union is not satisfied, it may refer the grievance to
     arbitration "within ten (10) days after receipt of the [Plant
     Manager's] answer."


     Georgia-Pacific discharged Beavers on March 9, 1992, giving "[f]alse
testimony during the investigation of a 'Sexual Harassment Charge'" as the
reason for his discharge.    On March 10, UPIU filed a grievance with the
Personnel Manager, who immediately denied it.   On March 11, UPIU appealed
to the Plant Manager.   Without meeting with the Union Steward Committee,
the Plant Manager denied the grievance that same day.


     UPIU held an "arbitration vote" on May 6 and submitted the grievance
to arbitration on September 16, long after the ten-day period specified in
Section XX of the new CBA.   Following a hearing, the arbitrator denied the
grievance "as untimely and non-arbitrable."     In a lengthy opinion, the
arbitrator explained that the time limits in a governing collective
bargaining agreement are controlling absent contrary prior practice; that
there was no prior practice under Section XX of the new CBA; that the Plant
Manager advised UPIU's president on March 11 that the grievance was denied;
that UPIU's May 6 arbitration vote demonstrated that it considered any
failure to meet with the Union Steward Committee "cured"; and




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that UPIU's claim that it delayed four additional months before seeking
arbitration     because      it   was   waiting   for    Georgia-Pacific      to   commence
arbitration was without merit.            The arbitrator concluded:


         Union has offered no explanation for its more than six-month
         delay in requesting an arbitration panel in this case. Absent
         adequate explanation, the undersigned finds that the matter was
         untimely when forwarded to arbitration. . . . [S]ince Union
         clearly failed to adhere to [the time limits in the CBA], I
         find that I am without authority or jurisdiction to rule on the
         grievance.


         Beavers then commenced this action, seeking damages for breach of
UPIU's duty of fair representation.               UPIU moved for summary judgment,
submitting in support a two-page affidavit of its president, Larry King.
Mr. King averred:


         Local 1741 maintained that the company failed and refused to
         follow its past practices for processing grievances to
         arbitration; specifically, there was no meeting to discuss and
         try to resolve [Beavers's] grievance prior to requesting a
         panel of arbitrators. My interpretation of the contract was
         that until those meetings took place, requesting an arbitration
         panel would have been premature. Furthermore, the company had
         previously requested the panel only after such meetings with
         the Union.     An arbitration was conducted on [Beavers's]
         grievance and [Beavers] fully participated in the hearing. The
         arbitration award found the request for arbitration was
         untimely under the terms of the collective bargaining
         agreement.

         All my actions with respect to [Beavers] were impartial,
         nondiscriminatory and were taken in good faith to protect his
         interests to the best of my abilities as the Union's
         representative.


Based upon this affidavit, the district court granted summary judgment in
favor of UPIU because "[t]he Court is convinced that [UPIU] was guilty of
negligence and ineptitude in failing to file the request for arbitration
in   a    timely   manner,    but   the   Court   does    not   view   that    conduct   as
unreasonable or arbitrary in light of the past practice and custom between
[UPIU] and Georgia-Pacific."




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                                    II.


      Because a union enjoys the exclusive right to represent its members
in the collective bargaining process, the federal labor laws impose upon
the union a duty of fair representation "akin to the duty owed by other
fiduciaries to their beneficiaries."      Air Line Pilots Ass'n, Int'l v.
O'Neill, 499 U.S. 65, 75 (1991).     This duty is breached "when a union's
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).



      In this case, there is no claim that UPIU discriminated against
Beavers, and his conclusory assertion that UPIU acted in bad faith in
processing the grievance lacks the evidentiary support necessary to avoid
summary judgment.   See Schmidt v. Int'l Bhd. of Elec. Workers, Local 949,
980 F.2d 1167, 1170 (8th Cir. 1992) (claim of bad faith requires proof of
"fraud, deceitful action or dishonest conduct by the union").     Thus, the
issue is whether UPIU "arbitrarily ignore[d] a meritorious grievance or
process[ed] it in perfunctory fashion."   Vaca, 386 U.S. at 191, quoted in
Int'l Bhd. of Elec. Workers v. Foust, 442 U.S. 42, 47 (1979).


      A union's conduct is arbitrary 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."
O'Neill, 499 U.S. at 67, quoting Ford Motor Co. v. Huffman, 345 U.S. 330
(1953).   As the district court recognized, "mere negligence, even in the
enforcement of a collective-bargaining agreement, would not state a claim
for breach of the duty of fair representation."     United Steelworkers of
America v. Rawson, 495 U.S. 362, 372-73 (1990); see NLRB v. American Postal
Workers Union, 618 F.2d 1249, 1255 (8th Cir. 1980).          Because union
representatives are not lawyers, it would be inappropriate to hold them in
the grievance-arbitration process to "the demanding tests applied to a
trained trial lawyer."   Stevens v. Highway, City & Air




                                    -4-
Freight Drivers, 794 F.2d 376, 378 (8th Cir. 1986).               Thus, we construe the
Supreme Court's reference in Vaca to the "perfunctory" processing of a
grievance to mean that "the union acted without concern or solicitude, or
gave a claim only cursory attention."             Curtis v. United Transp. Union, 700
F.2d 457, 458 (8th Cir. 1983).
       UPIU intended to arbitrate Beavers's grievance, but the arbitration
was dismissed as untimely.          This same situation was presented in Ethier v.
United States Postal Serv., 590 F.2d 733, 736 (8th Cir.), cert. denied, 444
U.S. 826 (1979).      In Ethier, a new union steward held informal discussions
with    the   employer   and       then   filed     a   written   grievance    challenging
plaintiff's discharge.        The grievance was one day late, and the arbitrator
dismissed it as non-arbitrable.           We affirmed the grant of summary judgment
in favor of the union, concluding:


       If Ethier's point of view were adopted, Unions would be subject
       to claims of unfair representation whenever a grievance was
       ultimately found not to have been timely filed. . . . Certainly
       this record does not support an inference that the Union
       steward here was unconcerned, unsolicitous, or indifferent. To
       the contrary, he pursued the grievance with vigor and erred
       only in failing to anticipate how the Agreement would
       ultimately be construed by an arbitrator.


590 F.2d at 736.         Thus, if UPIU had missed the ten-day deadline for
submitting Beavers's grievance to arbitration because it misconstrued the
CBA as first requiring a meeting between the Plant Manager and the Union
Steward Committee, or because it believed Georgia-Pacific would commence
the    arbitration,    such    a    mistake    would     not   constitute     arbitrary   or
perfunctory conduct.


       However, the record before us is far more ambiguous.                 Here, UPIU did
not just miss a ten-day deadline.             It did nothing for nearly two months.
It then submitted Beavers's grievance to a vote of the union members, but
it did not submit the grievance to




                                              -5-
arbitration for more than four months after the members voted to press the
grievance.     As the arbitrator noted, the CBA clearly required that the
grievance be referred to arbitration within ten days after receipt of the
Plant Manager's ruling, and UPIU's six month delay cannot be explained away
on the basis of past practice because there was no prior practice with
Georgia-Pacific under the new CBA.     Moreover, there is no evidence UPIU
ever contacted Georgia-Pacific to clarify any uncertainty about how Section
XX's rigorous new time limits should be implemented.


     Viewing the record in the light most favorable to Beavers, as we
must, we conclude that a rational factfinder could find that "the union
acted without concern or solicitude, or gave [Beavers's] claim only cursory
attention."     Therefore, Beavers's claim of breach of the duty of fair
representation raises a genuine issue of material fact precluding summary
judgment in favor of UPIU.     Of course, even if Beavers proves that UPIU
breached its duty of fair representation, "damages attributable solely to
the employer's breach of contract should not be charged to the union."
Vaca, 386 U.S. at 197.    Moreover, for this type of alleged breach of duty,
Beavers's claims for punitive damages and for mental and emotional distress
damages are precluded.      See Foust, 442 U.S. at 52 (1979); Anderson v.
United Paperworkers Int'l Union, 641 F.2d 574, 581 n.9 (8th Cir. 1981);
Richardson v. Communications Workers of America, 443 F.2d 974, 982 (8th
Cir. 1971).     Accord Cantrell v. Int'l Bhd. of Elec. Workers, Local 2021,
32 F.3d 465, 468-69 (10th Cir. 1994).


     The judgment of the district court is reversed, and the case is
remanded for further proceedings consistent with this opinion.


     A true copy.


              Attest:


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




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