Gwin to Hirn in connection with Hirn's duties as union counsel. It is established, further, that when Gwin sent the tape to Hirn, he understood that Hirn was representing MEBA and all its members in the contract arbitrations. (Gwin Dep. at 38, 76).
Furthermore, an attorney acting as an agent of the union has an obligation to act for the benefit of all its members, even if the majority interest clashes with individual interests. See Vaca, supra, 386 U.S. at 182; Griffin v. Air Line Pilots Ass'n, 32 F.3d 1079, 1083 (7th Cir. 1994). In the absence of any evidence to support a reasonable expectation of confidentiality, Hirn's decision to use the tape in contract negotiations was not arbitrary or in bad faith. If Hirn had an ethical obligation to not disclose the tape, Gwin's claim does not lie against the union.
2. Arbitration hearing
Gwin alleges that the union's representation at the arbitration hearing was perfunctory and in bad faith because Hirn failed to present necessary evidence and did not allow him to testify. The union argues that Hirn's representation was competent and that the challenged decisions were strategic ones that were not "irrational" or motivated by bad faith.
In order to find that a union's representation was "perfunctory," evidence that the union acted with reckless disregard for the employee's rights is required. See Castelli v. Douglas Aircraft Co., 752 F.2d 1480, 1482 (9th Cir. 1985). Mere negligence does not arise to the level of a breach of the duty of representation. Id. A union's duty does require some "minimal investigation" of an employee's grievance, id. at 1483 (spending no more than one and half hours for investigation and preparation and failing to call key witnesses not perfunctory), but the quantum that will be considered "minimal" is quite small. In Garcia v. Zenith Elecs. Corp, 58 F.3d 1171, 1178-79 (7th Cir. 1995), the court found that the union's representation was not perfunctory despite the fact that the union's representative put on no evidence of its own, failed to call any witnesses and rested at the end of the employer's case. In the present case, it is undisputed that Hirn met with Gwin for several hours prior to the hearing; spent additional hours preparing outlines of examination questions; cross-examined ETC's witnesses; submitted evidence on behalf of Gwin; and presented Hale's testimony.
Nor does the record support Gwin's claim that the union's failure to present his testimony was a breach of duty. Gwin contends that Hirn's failure to call him to the stand was a direct result of Hirn's desire to conceal the fact that he disclosed the recorded tape. Gwin submits that, had he testified, he would have explained his comments regarding his competency in the Libra telex and his reasons for recording the conversation with Matson. The union responds that the decision not to call Gwin to the stand was a strategical one, and that it was based upon concerns that Gwin would make damaging admissions regarding his participation in a strike vote, as well as general concerns regarding his credibility.
Gwin's conclusory allegations that Hirn did not call him to the stand because of a "conflict of interest" created by the use of the recorded tape are unsubstantiated and are insufficient to create a genuine dispute of material fact. See Garcia, supra, 58 F.3d at 1177-78 (failure to call grievant to the stand is strategic). Gwin's reliance on Achilli v. John J. Nissen Baking Co., 989 F.2d 561 (1st Cir. 1993), in which the court found that the union had acted in bad faith in representing a shop steward due to a conflict of interest, is misplaced. In that case, the court's finding was based on the union's failure to present evidence that it had secretly instructed the shop steward to engage in the work stoppage that resulted in the steward's termination. Id. at 563-64.
3. Failure to appeal arbitrator's decision
Gwin contends, finally, that the union's decision to not pursue an appeal from the arbitrator's ruling breached its duty of fair representation. The question of whether a duty of fair representation can be based on a union's failure to appeal an arbitrator's award is open to debate, see Freeman v. Chauffeurs, Teamsters, Warehousemen, and Helpers, 746 F.2d 1316 (7th Cir. 1984)(finding no such duty); Sear v. Cadillac Automobile Co. of Boston, 654 F.2d 4, 7 (1st Cir. 1981)(duty exists only in "unusual circumstances"), and has not been addressed in this circuit. Even if the court were to assume that such a duty does exist, however, there is no evidence in this record to suggest that the union's decision not to appeal was arbitrary or in bad faith. The union's position that an appeal would be futile was not unreasonable in light of the broad deference accorded arbitration rulings. See American Postal Workers Union v. United States Postal Service, 311 U.S. App. D.C. 210, 52 F.3d 359, 361 (D.C. Cir. 1995)("Our scope of review of an arbitrator's award . . . is extremely narrow.").
Having determined that there is no genuine issue of material fact on the issue of the union's duty of fair representation and that the union is entitled to judgment as a matter of law, the court need not reach the issue of whether ETC breached the collective bargaining agreement in demoting and transferring Gwin.
United States District Judge
Dated: April 30, 1997
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