Norman E. Dutrisac, and Bill Gamble v. Caterpillar Tractor Co., and International Association of MacHinists District Lodge No. 115

Bill Gamble was fired by Caterpillar Tractor Company, allegedly for excessive absenteeism. Gamble brought this action under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1976), charging that Caterpillar had fired him in violation of the collective bargaining agreement and that his union, the International Association of Machinists, District Lodge No. 115 (IAM), had breached its duty to represent him fairly in his attempt to gain reinstatement.

The district court granted summary judgment for Gamble on his fair representation claim against IAM. However, after a bench trial on the wrongful discharge claim, the court found that Caterpillar had fired Gamble for good cause and thus had not breached the collective bargaining agreement. Nevertheless, the court or *1272 dered IAM to pay the legal costs and attorney’s fees of Gamble’s section 301 action, as damages caused by IAM’s breach of its duty of fair representation to Gamble. Du-trisac v. Caterpillar Tractor Co., 511 F.Supp. 719 (N.D.Cal.1981). IAM appeals.

The facts are undisputed. After Caterpillar fired him on February 10, 1978, Gamble filed a grievance alleging that the discharge was racially motivated. In…

concurring:

I concur because I believe the majority is correct in treating the disposition of this case as controlled by Robesky v. Qantas Empire Airways, 573 F.2d 1082 (9th Cir. 1978). I do so reluctantly, however, because I believe that in holding a union liable for an unexplained procedural failure in processing an employee’s grievance, we signify that ordinary negligence may constitute a breach of a union’s duty of fair representation under the doctrine of Vaca v. Sipes, 386 U.S. 171, 190 , 87 S.Ct. 903, 916 , 17 L.Ed.2d 842 (1967).

I agree with Judge Kennedy in his concurring opinion in Robesky that the root of the problem is traceable to the Supreme Court’s use of the imprecise term “arbitrary” in defining a standard of care for union representation. Vaca v. Sipes, 386 U.S. 171, 191 , 87 S.Ct. 903, 917 , 17 L.Ed.2d 842 (1967). As Judge Kennedy pointedly observed:

Robesky, 573 F.2d at 1091-92 .

I fear that the confusion spawned by Vaca v. Sipes was compounded by our court in Robesky . There the possibility of a breach of duty occurred because the union failed to disclose to an employee information critical to her interests. 573 F.2d at 1085 & n. 4, 1087. The district…

749 F.2d 1270 113 L.R.R.M. (BNA) 3532 , 98 Lab.Cas. P 10,318 Norman E. DUTRISAC, Plaintiff, and Bill Gamble, Plaintiff/Appellee, v. CATERPILLAR TRACTOR CO., Defendant, and International Association of Machinists, District Lodge No. 115, Defendant/Appellant. No. 81-4251. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 9, 1982. Decided July 19, 1983. Thomas Titmus, Dodge, Reyes, Brorby, Randall & Titmus, Walnut Creek, Cal., for plaintiff/appellee. Steven L. Stemerman, Davis, Cowell & Bowe, San Francisco, Cal., for defendant/appellant. Appeal from the United States District Court for the Northern District of California. Before SCHROEDER, FLETCHER and NORRIS, Circuit Judges. FLETCHER, Circuit Judge: 1 Bill Gamble was fired by Caterpillar Tractor Company, allegedly for excessive absenteeism. Gamble brought this action under section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185 (1976), charging that Caterpillar had fired him in violation of the collective bargaining agreement and that his union, the International Association of Machinists, District Lodge No. 115 (IAM), had breached its duty to represent him fairly in his attempt to gain…