charges with the N.L.R.B., and in settlement of these charges the workers were returned to their original hours.
No agreement was reached on the proper disposition of plaintiffs' grievances. The Postal Service proposed a return to work without backpay -- it is not clear at what starting time. Plaintiffs allege that they were not informed of this offer.
Finally, an arbitration hearing was scheduled for October 23, 1984 -- two years after the discharges complained of. Prior to that date, plaintiffs here had retained independent outside counsel, and asked to be represented by that counsel at the arbitration proceeding. The Union acceded to their request.
At the hearing, the Postal Service renewed its offer to reinstate plaintiffs without backpay -- apparently at the new hours. Plaintiffs declined the offer. The hearing duly proceeded, and testimony and argument were presented by both sides.
On June 19, 1985, the arbitrator rendered her decision upholding the discharges. She first decided that under the collective bargaining agreement the grievants were obliged to obey the orders of the Postal Service, even if such orders proved later to be in violation of the contract. She then found that the plaintiffs had made no effort to conform to the new schedule. She was particularly influenced by the plaintiffs' failure to bid for the 4:00 P.M. time slots. Lastly, she decided that dismissal was warranted, because no lesser disciplinary action would have led plaintiffs to conform to the new starting times.
The defendants in this dispute agreed in their collective bargaining agreement to submit their differences to binding arbitration. The presumption in favor of finality of such arbitration is so great that a district court may not review the arbitrator's award no matter how harsh or unjust it appears to be, Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 571, 47 L. Ed. 2d 231, 96 S. Ct. 1048 (1976); Findley v. Jones Motor Freight, Inc., 639 F.2d 953, 958 (3d Cir. 1981). An exception to this rule occurs when the union's representation of a grievant has been "dishonest, in bad faith, or discriminatory," Hines, 424 U.S. at 571. In such a case, the individual grievant can obtain a determination of the merits of the dispute from the district court, provided he can first show the union's failure to represent him fairly. This failure must have damaged the presentation of the grievant's case to the arbitrator, Findley, 639 F.2d at 959. Furthermore, it must be a failure resulting from a "bad faith motive" on the part of the union; simple negligence is not a breach of the union's duty, Medlin v. Boeing Vertol Co., 620 F.2d 957, 961 (3d Cir. 1980).
Here, plaintiffs were represented by their own counsel, at their own request, at their arbitration hearing. No failure of the Union's duty can be inferred, of course, from the performance of outside counsel.
Instead, plaintiffs try to show a series of violations of the Union's duty at the grievance stages which poisoned the fairness of the arbitration procedure. Even assuming that such violations could lead to review of an arbitration award, this Court is persuaded that no violation of the Union's duty occurred here.
Plaintiffs first complain that the Union did not advise them as to whether they should bid on the later starting times. Their failure to do so, of course, in the end had a damaging effect on their case. However, there was no way for the Union officers to know that. The information available to them was no different than that available to the Union members themselves. Thus, this case does not resemble N.L.R.B. v. Local 282, Int'l Bhd. of Teamsters, 740 F.2d 141, 148 (2nd Cir. 1984), which held that in certain circumstances the union has a duty to provide information to its members. Failure to give advice is simply not an actionable wrong.
Next, plaintiffs assert that they would have been better off if the Union had insisted on arbitrating the contract and disciplinary issues together. As a matter of tactics, this may or may not be so. The Court does not review tactical decisions made in the course of grievance proceedings, Marietta v. Cities Service Oil Co., 414 F. Supp. 1029, 1036 (D.N.J. 1976). Other than tactically, the decision could not have prejudiced plaintiffs, who admittedly received a full hearing of their grievances before a competent arbitrator.
Third, plaintiffs assert that the Union did not notify them of the Postal Service's offer of their positions without backpay. There is no question, however, that the offer was renewed at the arbitration hearing itself, and that plaintiffs refused it. In any event, the failure to communicate a settlement offer cannot possibly affect the "integrity of the arbitration process," Vosch v. Werner Continental, Inc., 734 F.2d. 149, 154 (3d Cir. 1984), and so cannot be grounds for a review of an award.
Lastly, plaintiffs allege that the Union refused to meet with them to plan this appeal of the arbitrator's decision. The Union has no obligation to appeal adverse arbitration awards. Freeman v. Local 135, Int'l Bhd. of Teamsters, 746 F.2d 1316, 1322 (7th Cir. 1984).
The law is clear. Without a showing that the Union has violated its duty of fair representation, this Court has no power to reach plaintiffs' challenge to the arbitrator's award, no matter how meritorious their suit may appear.
For the reasons set forth in the Court's opinion filed herewith,
It is on this day of April, 1986, ORDERED that defendants' motion for summary judgment be,
and it hereby is, granted; and it is further
ORDERED that plaintiffs' motion for summary judgment be, and it hereby is, denied.
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