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January 28, 1983

KARL PARKER, JR., Plaintiff,

The opinion of the court was delivered by: GREENE

In these consolidated cases a railroad conductor sues his employer and his union, *fn1" alleging that an illegal affirmative action plan has kept him off the promotion track to the sought-after job of engineer. Plaintiff, a white male, claims that the employer was wrong to formulate the affirmative action program that it did, to administer it to plaintiff's detriment, and to retaliate against him when he complained. *fn2" Plaintiff charges the union with wrongfully acquiescing in the plan and with failing to respond adequately to his complaints about it. Before the Court are the union's motion for summary judgment and a motion for partial summary judgment on timeliness grounds filed by the railroad and joined in by the union. Having considered the parties' written submissions and heard oral argument, the Court will grant the union's motion and deny that of the railroad.


 Although plaintiff's complaints, without the context provided by the summary judgment papers, state claims upon which relief may be granted, *fn3" the legal theories under which plaintiff is proceeding against the union are not as fully developed as they might be. In Nos. 79-0158 and 80-2626 plaintiff charges the union with discrimination under 42 U.S.C. § 1981 (1976) for having "approved" the railroad's allegedly unlawful affirmative action plan. *fn4" In No. 81-0266 plaintiff's amended complaint contains a more specific allegation of wrongdoing by the union, to the effect that

Defendant UTU has acquiesced in, assisted and affirmed all actions of Defendant B. & O. in that plaintiff made demands upon Defendant UTU, that it file and process grievances in plaintiff's behalf and secure plaintiff's transfer, together with all back pay and seniority which plaintiff was entitled. However, the Defendant UTU failed and refused to process any grievance in plaintiff's behalf, and, instead Defendant UTU notified plaintiff that it had determined the actions of Defendant B. & O. were proper and that it would not file the grievance in his behalf. This decision not to process plaintiff's grievances was not made in good faith or in the exercise of discretion.

 The attack on the union's handling of grievances suggests that plaintiff is claiming that the union breached its duty of fair representation. *fn5" The facts do not support either claim, however, even viewed in a light most favorable to plaintiff. Only if the duty of fair representation were far broader than it is could plaintiff make out a colorable claim that the duty had been breached in this case, and only then could he begin to make out a § 1981 claim. In his pleadings and at oral argument plaintiff's counsel postulated a practically boundless duty on the union's part, a duty to "actively negotiate nondiscriminatory treatment of its members." *fn6" This phrasing it lifted from a case concerning discrimination against blacks by a predominantly white employer and white union, Macklin v. Spector Freight Systems, Inc., 156 U.S. App. D.C. 69, 478 F.2d 979, 989 (D.C. Cir. 1973), in which the Court wrote that one means of reducing discrimination against blacks by an employer would be "for the union, in its vital role as bargaining agent, to negotiate actively for nondiscriminatory treatment in aid of its black members" (emphasis added).

 It is doubtful that principles developed in cases of egregious discrimination against blacks correctly define a union's duty when the allegation is that the majority intentionally discriminated against or acted unfairly toward a member of its own racial or sexual group through affirmative action. *fn7" Even if the principles were properly transferable, however, plaintiff does not allege facts that, if true, would demonstrate a failure by the union to "actively negotiate" in his interests because he was white and male. Plaintiff states that the union discriminated against white males by approving the affirmative action plan -- yet the union was not a party to the plan. *fn8"

  If plaintiff is arguing that the union acted discriminatorily by not making defeat or modification of the plan one of its collective bargaining objectives, the argument is without merit. Certainly the union was under no duty to try to obstruct the interests of minorities, the persons aided by the railroad's affirmative action plan, and the individuals the civil rights laws are intended most zealously to benefit and protect. United Steelworkers of America v. Weber, 443 U.S. 193, 202-03, 61 L. Ed. 2d 480, 99 S. Ct. 2721 (1979). A stance hostile to the interests of women and minorities might well have subjected the union to legal liability for discrimination of a more traditional sort than that alleged by plaintiff, and the union, within its discretion, was entitled to forego that course of conduct. *fn9"

 The fact is that plaintiff is not really challenging the union's conduct during negotiations; he is complaining, at best, about the union's enforcement of existing collective agreements through the grievance process. Yet it is difficult to see what bearing the union's duty to "actively negotiate" a certain outcome, were such a duty to exist, would have on plaintiff's case when the union's allegedly wrongful conduct occurred in the enforcement stage. As to this claim, plaintiff seems to be arguing that the union had a duty to police the employer's affirmative action program not only by processing his grievance to the last possible stage but also by actually effecting his transfer to a fireman position. This contention is meritless. The Supreme Court expressly rejected such a broad characterization of the duty of fair representation in Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967) in a passage quoted in plaintiff's own pleadings.

We do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement.

 386 U.S. at 191.

 In Vaca the Court explained that

[a] breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.

 386 U.S. at 190. *fn10"

 Properly applied to this case, then, the duty of fair representation entitled plaintiff to no more than a nonarbitrary, nondiscriminatory, and good faith response to his complaints that the B. & O. violated a section of the collective bargaining agreement in failing to transfer him to "fireman." *fn11" This he secured. The section of the labor agreement that plaintiff claims to have been violated by the B. & O. provides that persons with seniority as conductor, such as plaintiff, "will be considered for transfer to positions of locomotive fireman (helpers) in preference to hiring individuals who have not established seniority with the ...

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