CROSKEY, J.
Plaintiffs and appellants George Huff, Lendard Morris,
Plaintiffs are employed by the City of Los Angeles Department of Water and Power (DWP) as security officers. Union is the exclusive representative of security personnel employed by the DWP. However, the DWP also contracts out some of its security to independent contractors; the independent contractors are not represented by the Union.
Security officers employed by DWP have, as a historical matter, been granted the opportunity to bid for specific assignments (posts and shifts) based on seniority. Not all assignments result in the same pay; some assignments have greater overtime opportunities, and others involve a pay differential for graveyard shift work. However, until the 2005 Memorandum of Understanding (MOU) between the Union and the DWP, there was no explicit requirement that assignments be bid. The immediately previous MOU, governing the period from July 2002 through June 2005, did not have a term requiring that positions be bid. However, positions were bid in Spring 2001 and July 2004.
Thereafter, the DWP and the Union entered into negotiations for a list of amendments to the 2002 MOU, which would, when incorporated into the 2002 MOU, become the 2005 MOU. These negotiations were not completed until March 2007. As we now discuss, while the bulk of the terms of the 2005 MOU became effective retroactive to July 1, 2005; this was not the case with respect to the new provision related to bidding.
In opposition to the motion for summary judgment, plaintiffs submitted a document entitled "Amendment to Memorandum of Understanding for July 1, 2005 — September 30, 2010 Salaries and Benefits." The document states, under the heading "Contents of Amendment," in pertinent part, the following: "This amendment adds and revises articles of the July 1, 2002 through June 30, 2005 MOU between the [DWP] and the [Union]. [¶] The salaries contained herein require approval of the City Council. [¶] Unless noted otherwise, all modifications provided herein shall be effective July 1, 2005. [¶] When these modifications are included in the current MOU, the results will be the July 1, 2005 — September 30, 2010 Security Unit MOU."
Included in this amendment is the addition to the MOU of Article 28.1, which provides: "Effective upon adoption of this amendment, the existing bid plan shall be amended to provide for the annual bidding of positions. Specific details as to the process and execution of the bid plan will be established through the Joint Labor-Management Security Committee." (Emphasis added.) Thus, while certain other provisions of the 2005 MOU became effective retroactive to July 1, 2005, the requirement for annual bidding of positions did not become effective until "adoption of this amendment," which was in March 2007.
During the course of the negotiations of the 2005 MOU, the Union surveyed its members as to whether the Union should push management to bid posts under the then-existing (2004) bid plan. Respondents to the survey indicated that they wanted the Union to wait until it negotiated improvements to the bid plan. Additionally, the Union believed that it would successfully convince the DWP, in the MOU negotiations, to reduce its use of contract security personnel, which would open up additional positions for bidding. The Union thus believed that waiting until the MOU negotiations were complete before holding another bid would be in the interests of its members.
Article 28.1, which provided for annual bidding, did not provide for immediate annual bidding. Instead, it provided that "[s]pecific details as to the process and execution of the bid plan will be established through the Joint Labor-Management Security Committee." The Joint Labor-Management Security Committee (JLMSC) was an entity provided for in the 2005 MOU. In that regard, the 2005 MOU stated, "[T]he parties agree to form a [JLMSC] which shall begin work on topics that shall include (and not be limited to): additional safety and/or protective equipment, head coverings such as a baseball-type cap and campaign hat for summer field use, shorts, training, rain gear, security facilities and systems, and all other topics specifically delineated or designated by mutual agreement."
After adoption of the 2005 MOU in March 2007, the JLMSC was not immediately formed; indeed, it did not begin meeting until 2008. However, in May 2007, the Security Services Bid Committee of the JLMSC (Bid Committee) began meeting and negotiating details of the bid plan.
Although it might have been hoped that a new bid plan could have been quickly negotiated, the Bid Committee met numerous times between May 2007 and April 2009 until it had completed its work.
In short: The 2002 MOU did not provide for annual bidding of positions, and annual bids were not, in fact, conducted under the practices in existence under the 2002 MOU. In 2005, negotiations were opened on the 2005 MOU. In March 2007, the 2005 MOU was adopted. It provided for annual bidding of positions, and provided that the newly-created JLMSC would negotiate the details of the new bid plan. In May 2007, the Bid Committee of the JLMSC began meeting, and, in Spring of 2009, completed its work. Bids were immediately held in May 2009, and the annual bidding process began in October 2009.
During this time, plaintiff Huff was concerned that bids were not being held, and chose to pursue one or more grievances. Under both the 2002 MOU and the 2005 MOU, parallel grievance procedures existed — either the Union could pursue a grievance on behalf of its members, or an individual member could pursue his or her own grievance. Indeed, there is a place on the grievance initiation form for the grievant to indicate whether he or she wants to pursue the grievance by self-representation or by Union representation. Huff filed all of his grievances as self-representation grievances.
On March 17, 2009, prior to the date bids were ultimately held, plaintiffs filed this action against the Union. The operative complaint is the first amended complaint, filed May 26, 2009, which states a single cause of action against the Union for breach of the duty of fair representation. Plaintiffs assert the Union breached its duty of fair representation in three ways: (1) by failing to enforce Article 28.1 of the 2005 MOU, which allegedly required annual bids from July 2005 onward; (2) by failing to timely form the JLMSC; and (3) by failing to properly investigate or respond to Huff's grievances.
The Union moved for summary judgment, relying on the facts and timeline discussed above. The Union also argued that the superior court lacked jurisdiction as plaintiffs had failed to exhaust their administrative remedy before the City of Los Angeles Employee Relations Board.
The trial court overruled all of plaintiffs' evidentiary objections, a ruling not contested on appeal. Concluding that the facts as submitted by the Union were undisputed, the court granted summary judgment, on the basis that the Union's conduct toward its members was not in any way arbitrary. Judgment was entered accordingly. Plaintiffs filed a timely notice of appeal.
On appeal, plaintiffs argue that summary judgment was inappropriately granted because the Union breached its duty of fair representation. Specifically, plaintiffs argue that the Union failed in its duty by: (1) not enforcing the 2005 MOU's provision purportedly requiring annual bids from July 2005 onward; (2) not enforcing the 2005 MOU's provision requiring the formation of the JLMSC until 2008, "therefore no body was available to set the details for the annual bidding of positions" until that time; and (3) failing to respond to plaintiffs' complaints regarding the failure to annually bid positions. As we conclude the undisputed facts do not support any of plaintiffs' arguments, we affirm.
"`A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail.' (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) The pleadings define the issues to be considered on a motion for summary judgment. (Sadlier v. Superior Court (1986) 184 Cal.App.3d 1050, 1055.) As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. Only then will the burden shift to the plaintiff to demonstrate the existence of a triable, material issue of fact. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065.)" (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) We review orders granting or denying a summary judgment motion de novo. (FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 72; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579.) We exercise "an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law." (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.)
A union has a duty of fair representation, and may be sued for a breach of that duty if its conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith. (Vaca v. Sipes (1967) 386 U.S. 171, 190; Jones v. Omnitrans (2004) 125 Cal.App.4th 273, 283.) In this case, we are concerned with allegations that a union's conduct was arbitrary. "[A] union's actions are arbitrary only if, in light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outside a `wide range of reasonableness,' [citation] as to be irrational." (Air Line Pilots v. O'Neill (1991) 499 U.S. 65, 67.) "Any substantive examination of a union's performance . . . must be highly deferential, recognizing the wide latitude that negotiators need for the effective performance of their bargaining responsibilities." (Id. at p. 78.)
On appeal, plaintiffs continue to argue that the Union breached its duty of fair representation by not requiring the DWP to conduct annual bids from July 2005 onward, on the basis that the 2005 MOU required annual bids and became effective on July 1, 2005. We disagree.
The 2005 MOU, by its express terms, did not require annual bids until the 2005 MOU requiring annual bids was adopted. It was not adopted until 2007. Any failure to require annual bids under the 2005 MOU prior to that date could not possibly have been arbitrary, as the governing MOU did not provide for them. Similarly, the 2005 MOU did not require annual bids under the then-existing (2004) bid plan. Instead, it provided that the JLMSC would negotiate the details of a new bid plan. The Bid Committee of the JLMSC did not complete its work until the Spring of 2009. Any failure to require annual bids under the 2005 MOU between March 2007 and Spring 2009 could not possibly have been arbitrary as, although the 2005 MOU provided for annual bids, the 2005 MOU provided that they be conducted pursuant to a bid plan which had not yet been negotiated.
To the extent plaintiffs argue that the Union acted arbitrarily by not seeking annual bids under the prior (2004) bid plan during the time the 2005 MOU and the 2009 bid plan were being negotiated, no triable issue of fact exists. The Union introduced uncontroverted evidence that its rationale for declining to do so was based, in part, on the following: (1) the Union was seeking a better bid plan; (2) the Union thought it would be better to bid after it had successfully negotiated the reduction of contract security officers, which would increase bid options; and (3) the Union surveyed its members, who preferred to wait. Under these circumstances, we conclude that the Union's actions, as a matter of law, were not so far outside a wide range of reasonableness as to be irrational.
On appeal, plaintiffs argue that the Union acted arbitrarily in not forming the JLMSC from July 1, 2005 until 2008. Yet the 2005 MOU, which required the formation of the JLMSC, was not adopted until March 2007, and plaintiffs fail to explain how the Union could have required management to form a committee prior to the time the MOU requiring it was adopted.
On appeal, plaintiffs argue that their right to fair representation was violated when the Union failed to respond to their complaints regarding annual bids. But the evidence is undisputed that the only plaintiff who sought to grieve the lack of annual bids was Huff, who chose to pursue his grievance by self-representation, rather than with Union assistance.
Plaintiffs rely on Lane v. I.U.O.E. Stationary Engineers (1989) 212 Cal.App.3d 164 (Lane) to support their argument that, even though plaintiffs had a self-representation option, the Union nonetheless was required to investigate and respond to their complaints. We disagree. In Lane, although the plaintiff had been entitled to pursue his own grievance, the union voluntarily undertook to represent him. Under that circumstance, the union has a duty to act with a degree of care identical to the standard imposed by the duty of fair representation. (Id. at pp. 171, 174.) Lane did not hold that a union's duty of fair representation is implicated when a union member chooses to pursue his or her own grievance without union assistance.
While we do not disagree that perhaps this case could have been avoided if the Union had kept its members better informed as to the status of negotiations regarding the bid plan, we conclude that the Union did not breach its duty of fair representation by declining to take any action on grievances which were indisputably pursued as self-representation grievances.
As the Union's conduct was not arbitrary or irrational as a matter of law, the trial court did not err in granting summary judgment.
The judgment is affirmed. The Union shall recover its costs from plaintiffs on appeal.
KLEIN, P. J. and KITCHING, J., concurs.
