ALBERT B. BAKER vs. LOCAL 2977, STATE COUNCIL 93, AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL EMPLOYEES, AFL-CIO, & another. [Note 1]

KAPLAN, J. William Ames, the plaintiff Albert Baker, and four others applied to fill an advertised vacancy for the position of section foreman, highway division, Barnstable department of public works, W-12. After evaluation of these persons, the defendant town of Barnstable, as employer, through the department, selected Baker for the post. [Note 2] Ames filed a grievance

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under the collective bargaining agreement between the town and the defendant union, the exclusive representative of the relevant unit of employees, of which Ames and Baker were members. The grievance charged that the selection of Baker was in violation of article V ("Seniority") of the collective agreement, quoted in the margin, [Note 3] and that, upon a proper application of this provision, Ames deserved the appointment. Ames's grievance was denied at the first and second stages of the grievance procedure, but at the third stage, consisting of submission to the selectmen, the town allowed the grievance and appointed Ames to the post. Accordingly, Baker reverted to his previous position as mechanic in the highway division.

Baker then filed his grievance, asserting a violation of article V in the appointment of Ames, and claiming his, Baker's, right to the appointment. This grievance was denied through the third stage, and the union, although requested by Baker, did not press the grievance to the final stage, arbitration. [Note 4] Baker, as plaintiff, commenced the present action in Superior Court with the union and the town as defendants, alleging that the union's decision not to go to arbitration was in breach of its duty of fair representation. Baker prayed for a judgment directing the town to proceed to the arbitration of his grievance. [Note 5]

What emerged upon trial may be briefly stated. It was common ground that, if seniority were disregarded, Baker was better qualified for the position than Ames by a substantial

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margin; Ames could be found to be minimally qualified. Ames, however, had a wide advantage over Baker in seniority: Ames had twenty-four years of service, Baker eight. The judge, upon findings of fact and rulings of law, holding in effect that Baker had failed to establish breach of duty on the part of the union, entered judgment denying the application to compel arbitration. Baker appeals.

As a rule a court will not compel last-stage arbitration of a grievance at the suit of an individual employee when his union has declined to request arbitration under the collective agreement. Exceptionally, the individual may secure such relief when he is able to establish by "substantial evidence" [Note 6] that the union's negative decision was "arbitrary" or "discriminatory" or actuated by "bad faith," [Note 7] and the union thus stands in breach of the duty of fair representation. Our Labor Relations Commission has expressed a union's responsibility in other words that come to much the same thing, "Because bargaining agents' obligations often require that they represent conflicting interests, the National Labor Relations Board and the courts allow them a wide range of reasonableness in fulfilling their statutory duties, subject to good faith and honesty in the exercise of their discretion. . . . Consequently, an aggrieved employee, notwithstanding the possible merits of his claim, is subject to a union's discretionary power to pursue, settle, or abandon a grievance, so long as its conduct is not improperly motivated, arbitrary, perfunctory or demonstrative of inexcusable neglect." [Note 8] Under such a canon, it is not enough for the employee

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to show that his grievance was "meritorious," [Note 9] or that the union made a "judgmental error", [Note 10] or employed reasoning which, as an original matter, would not satisfy an expert Labor Relations Commission [Note 11] or, by extension, a judge. That a union did not reach the correct interpretation of a collective agreement [Note 12] -- was "inartful, unskillful, or erroneous" in contract analysis [Note 13] -- would not endow the grieving employee with a right to correction at the hands of a court. The distinction often to be observed is "between honest, mistaken conduct, on the one hand, and deliberate and severely hostile and irrational treatment, on the other." [Note 14]

On the present record, there is nothing approaching "substantial evidence" that the defendant union was other than "honest" in deciding not to pursue the grievance to the end. We do not enter upon a detailed inquiry whether the union's implicit interpretation of the seniority provision was correct. The view that an employee with much greater seniority than another, but with much less, yet minimal, merit qualified for promotion

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over that other, is not on its face irrational or indicative of any ulterior or malign motive on the part of the union. [Note 15]

Judgment affirmed. [Note 16]