Appeal from the United States Court for the Northern District of Illinois, Eastern Division. No. 75 C 3499- John F. Grady, Judge.
Before Cummings, Sprecher and Wood, Circuit Judges.
Ray Melendy appeals from an order and judgment of the district court which granted the motions for summary judgment of the United States Postal Service (USPS) and the National Association of Letter Carriers, AFL-CIO (NALC). This action was commenced by Melendy, a letter carrier for the Postal Service and a union member, against NALC and USPS pursuant to 39 U.S.C. § 1208(b). He sought money damages from both parties. He claimed that USPS had breached the collective bargaining agreement when it disciplined him. He also claimed that NALC had not provided fair representation of his challenges to the discipline in the grievance procedure.
Both NALC and USPS moved for summary judgment. The district court, in an unpublished memorandum decision dated December 13, 1976, granted the motion of the NALC on the fair representation claim, but denied the motion of USPS. On January 13, 1977, the district court, Sua sponte, vacated its order denying summary judgment to USPS, and directed the submission of briefs on whether an employer could be found liable for breach of the collective bargaining agreement if the union had grieved the disciplinary action and had not breached its duty of fair representation during the grievance process. Thereafter, based upon Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S. Ct. 1048, 47 L. Ed. 2d 231 (1976), and Barbarino v. Anchor Motor Freight, Inc., 421 F. Supp. 1003 (W.D.N.Y.1976), the district court also granted summary judgment to USPS.
Melendy contends on this appeal that the district court erred when it granted the NALC's motion for summary judgment because there existed genuine issues of material fact, precluding summary judgment as a matter of law. Melendy further contends that the district court erred when it granted USPS's motion for summary judgment because the district court held that a suit for breach of a collective bargaining agreement could not be maintained if the union provided fair representation in grieving the breach.
The facts involved in this case are as follows: Melendy was suspended from work three times by management between June 1974 and January 1975. He claims these disciplinary suspensions were imposed to force him to resign and were the result of a personality conflict between himself and supervisory staff at the post office to which he was assigned.
The first suspension, for 15 days, resulted from a complaint that Melendy had used foul and abusive language toward a postal customer while discussing attacks by the customer's dog. This suspension was grieved through the procedure established by the collective bargaining agreement.
While the first grievance was still in its early stages, Melendy received a second suspension for 21 days. This suspension resulted from a complaint by the same customer that Melendy was not delivering the mail, and a complaint from a different customer that Melendy was rude. Melendy denied the charges and asserted that the first customer had a continuing vendetta against him.
This suspension was also grieved. At the step 2B grievance meeting of the union and management, the grievance was settled. The suspension was reduced to 10 days. At approximately the same time, the first grievance was denied at the step 2B stage.
After the second grievance had been settled, but before the first grievance had been arbitrated, Melendy received a third suspension for 29 days. This suspension resulted from another complaint from the customer with the dog and another customer both asserting that Melendy had failed to attempt delivery of postage due mail. Melendy admitted not attempting delivery of the postage due mail to the house with the dog, but asserted that the dog prevented the attempt. Melendy denied not attempting delivery of the postage due mail to the neighbor's house.
At the step 2B grievance meeting, this grievance was also settled, the suspension being reduced to 15 days. This settlement was reached after the arbitrator had resolved the first grievance proceeding in Melendy's favor.*fn1
We will first consider the propriety of granting summary judgment to the union, since to reverse as to the NALC would require reconsideration of the granting of summary judgment as to USPS under Hines v. Anchor Motor Freight, Inc., supra.
Melendy contends that the union breached its duty of fair representation by acting arbitrarily and in bad faith. He asserts there were four areas in which genuine issues of material fact were unresolved concerning the suspensions. They were: 1) the hostility towards Melendy of the union representative; 2) the union's bad faith, dishonest treatment of the grievances; 3) the refusal to press the second and third ...