By Lawrence Peikes and Erick I. Díaz
11/9/07 12:59 PM
9th Circuit: Union Breached Duty of Fair Representation and Violated Title VII
By Lawrence Peikes and Erick I. Díaz
9th U.S. Circuit Court of Appeals
affirmed a lower court’s finding that a union breached its duty of fair representation and violated Title VII when it failed to file a grievance on behalf of an employee disciplined and subsequently fired for profanity.
Cheryl Ann Beck was a former employee of Fry Food Stores and, as a member of a bargaining unit, subject to the terms of a collective bargaining agreement (CBA) between the union and Fry. The CBA included a provision prohibiting the use of profane, abusive or threatening language. On April 13, 2001, while off-duty in a parking lot, Beck argued with a co-worker. The co-worker reported that Beck used profanity during the argument. As a result, Fry suspended Beck, who reported the suspension to the union representative. Beck claimed she did not use foul language and, in any event, should not be disciplined for an off-duty conversation.
On April 20, 2001, Fry issued the plaintiff a final written warning advising that any future use of profanity would result in termination. The union representative promised to file a grievance on Beck’s behalf challenging the warning, but she never did.
A few months later, on July 5, 2001, Beck had another rather heated argument with a different co-worker; this combatant likewise accused Beck of using profanity. On the basis of this second incident of verbal misconduct, Fry fired Beck.
This time the union honored Beck’s request that a grievance be filed on her behalf. Nonetheless, the union refused to arbitrate the grievance because the union’s attorney opined that an arbitrator would likely uphold the discharge given that the union did not challenge Beck’s prior warning.
Beck responded by suing the union on the theory that she had been discriminated against on the basis of her sex in violation of Title VII and further alleging that the union breached its duty to represent her fairly.
Following a bench trial, the district court ruled in the plaintiff’s favor as to her Title VII claim, relying largely on comparative evidence showing that the union did not represent Beck and another female employee as aggressively as it represented two male grievants. On the second count, the district court ruled that the union breached its duty of fair representation by failing to grieve Beck’s April 2001 warning.
On appeal, the union argued that its decision not to grieve the April 2001 warning was an exercise of judgment entitled to judicial deference. The 9th Circuit was not persuaded.
The appeals court found that the district court properly credited testimony from the union representative stating that he told Beck he would file the grievance, but later did not file it. The union’s failure to grieve the warning did not stem from an evaluation of the merits of the grievance. Further, the 9th Circuit agreed with the district court’s conclusion that the plaintiff would not have been terminated as a result of the July 2001 incident but for the union’s failure to grieve the warning issued in response to the April 2001 incident.
The 9th Circuit also highlighted the fact that the incident that led to the non-grieved April 2001 warning occurred while plaintiff was off duty. The appeals court observed that a union is held to a higher standard of care in discharge cases involving off-duty conduct because the sanction is severe and the nexus between job performance and the misconduct is more attenuated.
As for Beck’s Title VII sex discrimination claim, the union argued on appeal that the plaintiff’s comparative evidence of the treatment afforded two male employees was insufficient as a matter of law to establish the union’s discriminatory intent. More particularly, the union asserted that the comparative sample size was too small and did not account for possible nondiscriminatory variables. The 9th Circuit was not swayed, explaining that sample size affects the probative value of statistical evidence, not comparative evidence.
Beck v. United Food and Commercial Workers Union, Local 99
No. 05-16414 (9th Cir. Nov. 1, 2007).
Professional Pointer: Consistency in the application of workplace rules and imposition of disciplinary action is the most effective tool for averting—or, if need be, defending against— employee claims for discrimination.
Lawrence Peikes and Gregory A. Brown are attorneys with the firm of
Wiggin and Dana LLP
Editor’s Note: This article should not be construed as legal advice.
Workplace Law Focus Area