                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 97-1322
                                    ___________

William R. Danylchuk, Jr.,           *
                                     *
           Appellant,                *
                                     * On Appeal from the United
     v.                              * States District Court for
                                     * the Southern District of
                                     * Iowa.
Des Moines Register & Tribune Co.,   *
                                     *
           Appellee.                 *
                                ___________

                              Submitted: September 8, 1997
                                  Filed: October 21, 1997
                                   ___________

Before RICHARD S. ARNOLD, Chief Judge, HEANEY and BEAM, Circuit Judges.
                            ___________


RICHARD S. ARNOLD, Chief Judge.

       This is an action for breach of a collective-bargaining agreement under §301 of
the Labor Management Relations Act, 29 U.S.C. §185 (1994). The plaintiff, William
L. Danylchuk, Jr., alleges that the defendant, Des Moines Register & Tribune Co.,
discharged him without good cause and is violating the agreement by refusing to submit
the matter to binding arbitration. The company’s defense turns on the fact that the union
representing the bargaining unit of which Danylchuk was a member, Des Moines
Mailers Union Local 358, has chosen not to pursue the arbitration remedy. The District
Court1 held that the union, in choosing not to pursue the arbitration, had violated no duty
owed to Danylchuk, and therefore granted the employer’s motion for summary
judgment. (The union itself, originally sued as an additional defendant, had earlier
settled with the plaintiff.)

       The key question presented has to do with the union’s conduct. Was the union
in breach of its duty of fair representation? To show such a breach, plaintiff must
demonstrate that the union has acted in an arbitrary or discriminatory manner, or in bad
faith. See Vaca v. Sipes, 386 U.S. 171, 186 (1967); Smith v. United Parcel Service,
Inc., 96 F.3d 1066, 1068 (8th Cir. 1996). Moreover, the employer, in addition to
asserting that the union’s conduct was not to blame under this stringent standard, claims
that no agreement to arbitrate existed in any event, the collective-bargaining agreement
between it and the union having expired.

       In brief, the relevant facts are these. There was an agreement between the union
and the company including an arbitration clause. The agreement expired on February 3,
1994, but one of its provisions stated that “the terms and conditions of the expired
Agreement shall be maintained until a new Agreement is reached or other action is
authorized by the . . . Union or by the Company.” After the agreement expired, the
union took the position that the arbitration process, together with the other terms and
conditions of the agreement, survived. The company took the position that it did not,
on the ground, among others, that it, the company, had taken “other action” to terminate
the agreement to arbitrate. We need not resolve this dispute in order to decide the
present case. It is sufficient to note that the dispute existed, with the union and the
company taking opposite sides.

      On January 5, 1995, Danylchuk was fired from his job as a mailroom employee.
The company claimed that he had failed to report for work twice within one year, in

      1
       The Hon. Ronald E. Longstaff, United States District Judge for the Southern District
of Iowa.

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violation of mailroom office rules. Danylchuk asserted that his failure to report for work
was not voluntary and should be excused on account of illness. Representatives of the
company and the union adjusted the grievance through steps 1 and 2 of the grievance
procedure set forth in the expired Agreement. Thereafter, the company refused to
submit the grievance to a board of arbitration. For a time, the union insisted that the
arbitration clause had survived the expiration of the agreement, and that the company
had to abide by it, but, in the course of negotiations with the company for a new
collective-bargaining agreement, the union ultimately abandoned its position. As part
of these negotiations, and in order to secure a new agreement, the union dropped efforts
to submit Danylchuk’s case to binding arbitration, and consented to refer it instead to
non-binding mediation. Danylchuk then brought this action, claiming that the union had
abandoned him in breach of its duty of fair representation.

        We affirm the judgment of the District Court, substantially for the reasons given
in that court’s opinion. William R. Danylchuk, Jr., v. Des Moines Register & Tribune
Co., Civil No. 4-95-CV-10355 (S.D. Iowa, December 17, 1996). Danylchuk concedes
that the union was not motivated by any animus against him. Brief for Appellant 17.
The union simply decided that the welfare of its membership as a whole would be
sufficiently advanced by the conclusion of a new collective-bargaining agreement to
justify its change of position with respect to Danylchuk’s personal situation. The
union, of course, has to represent all employees in the bargaining unit. Whether
Danylchuk’s cause would ultimately have been upheld by the arbitrators was unknown.
Whether the union’s position that the company was obligated to arbitrate would
ultimately prevail was also unknown. The company was interested in disposing of the
Danylchuk matter as part of the over-all settlement. The union was willing, having
balanced all the relevant considerations, to make this concession. We cannot say that
this choice was arbitrary, discriminatory, or taken in bad faith. There is no evidence
that any of those things occurred. The result, we recognize, was not favorable to
Danylchuk as an individual, but a fiduciary who has to balance the interests of many
beneficiaries will often have to make such a choice. We hold that no breach of duty

                                           -3-
on the part of the union has been demonstrated, that there is no genuine issue of
material fact, and that the company was entitled to judgment as a matter of law.

      Affirmed.

HEANEY, Circuit Judge, dissenting.

       I respectfully dissent. The district court granted summary judgment in favor of
the Des Moines Register & Tribune Co. Thus, we must assume for the purpose of this
opinion that the facts alleged by Danylchuk are correct. Of significance for summary
judgment is the company’s ultimatum that, unless the union agreed to withdraw its
claim that the Danylchuk grievance be arbitrated, the company would not enter into a
new collective bargaining agreement. The union complied with this request by
withdrawing its demand for arbitration and agreeing that the Danylchuk grievance
would be submitted to nonbinding mediation. The likely result of this action was that
Danylchuk could prevail only if the company agreed to a resolution of the grievance
satisfactory to Danylchuk, an unlikely event in view of its posture during the relevant
time period.

       The company offers as a defense that the union had the right to abandon the
Danylchuk grievance for the greater good of the union members. I do not believe that
the union had the right to sacrifice a union member with a meritorious grievance in
order to secure a new collective bargaining agreement with the company. Under these
circumstances, the union’s responsibility was to file an unfair labor practice charge with
the National Labor Relations Board alleging that the company refused to bargain in
good faith. When an employer conditions signing a new collective bargaining
agreement on the union abandoning a grievance or lawsuit, the employer commits an
unfair labor practice by violating section 8(a)(5) of the Labor Management Relations
Act, 29 U.S.C. § 158(a)(5). See Plattdeutchse Park Restaurant, Inc., 296 N.L.R.B.
133, 137-38 (1989); Inner City Broad. Corp., 270 N.L.R.B. 1230, 1233-34 (1984);

                                           -4-
Good G.M.C., Inc., 267 N.L.R.B. 583, 584 (1983); Laredo Packing Co., 254 N.L.R.B.
1, 19 (1981); Nordstrom, Inc., 229 N.L.R.B. 601, 601 (1977). Therefore, by insisting
that the union waive the Danylchuk grievance as a condition of signing a new collective
bargaining agreement, the company engaged in an unfair labor practice.

       I have no quarrel with the holdings of Vaca and Smith, the cases cited by the
majority. In neither case, however, did the union agree to waive arbitration of what it
considered to be a meritorious grievance for the purpose of entering into a new
agreement.

        It may well be that if this case were remanded, as I think it should be, the district
court would find that the company did not issue an ultimatum, but that the union acted
to facilitate negotiations. If so, Danylchuk would not have a cause of action against the
company. Here, however, we must take the facts in the light most favorable to
Danylchuk. In that light, the company issued an ultimatum that unless the Danylchuk
grievance was withdrawn, there would be no collective bargaining agreement.

       A union representing members with conflicting interests acts properly when it
proceeds in good faith and on the basis of reasoned, informed judgment. Beardsly v.
Chicago & North Western Transp. Co., 850 F.2d 1255, 1266-68 (8th Cir. 1988);
Thomas v. Bakery, Confectionary & Tobacco Workers Union Local No. 433, 826 F.2d
755, 760 (8th Cir. 1987) (citation omitted); Automotive, Petroleum & Allied Indus.
Employees Union, Local 618 v. Gelco Corp., 758 F.2d 1272, 1276 (8th Cir. 1985)
(citation omitted). Certainly, then, a union has the right to balance the interests of
competing groups of employees within the union and enter into an agreement that it
believes benefits the whole. In my view, however, a union does not have the right to
waive arbitration of a meritorious grievance with respect to whether an employee had
been unlawfully discharged by the company unless there is evidence that the
employee’s grievance was of doubtful merit. I would remand to the district court with
instructions to hold a hearing to determine whether the company in fact issued an

                                            -5-
ultimatum to the union or whether the union abandoned Danylchuk’s grievance for no
good reason.

      A true copy.

            Attest.

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




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