Appellant's Failure To Respond To Alternative Basis To Uphold The Judgment Results In Forfeiture
TRUHLAR v. UNITED STATES POSTAL SERVICE (April 12, 2010)
Kenneth Truhlar was injured while working as a letter carrier for the United States Postal Service. He was required to periodically submit a form to the Department of Labor (DOL) in order to collect his partial disability payments. On the forms, he reported that he had no other job during the period for which he was claiming disability. In fact, Truhlar was a bass guitarist in a rock band and earned several thousand dollars during the period in question. The Service suspended him -- his union filed a grievance and, when it was denied, appealed. After the Service completed its investigation and concluded that Truhlar violated several rules, it notified Truhlar of its decision to terminate his employment. Again, the union grieved -- again, it appealed the denial of the grievance. Meanwhile, the DOL sought repayment of the benefits he had already received and a federal prosecutor considered criminal charges. The union and the Service agreed to a stay of the grievances pending the disposition of those actions. Truhlar appealed the DOL forfeiture order. The prosecutor decided not to prosecute. When a newly appointed postmaster inquired into the status of the pending grievances, she was provided with the Service's and the Department's reports concluding that Truhlar had knowingly failed to report outside income. She was also told, though incorrectly, that Truhlar had not appealed the forfeiture order. The postmaster met with the union representative and passed that accurate information to him. Based on the internal investigation, the Department's investigation, the prosecutor's rationale for declining to prosecute, and his belief that the DOL proceedings were complete, the union representative decided to withdraw the grievances. The Service terminated Truhlar's employment. A few months later, the Department's forfeiture order was reversed. The Appeals Board decided that the form did not put Truhlar on notice that he had to report his bass guitarist earnings. Truhlar filed suit under § 301 of the Labor Management Relations Act. He alleged that the Service violated the collective bargaining agreement by terminating him without cause and alleged that the union breached its duty of fair representation by not pursuing the grievances. The district court granted summary judgment to the defendants. Truhlar appeals.
In their opinion, Chief Judge Easterbrook and Judges Manion and Evans affirmed. In a § 301 "hybrid" action, a plaintiff must prevail on both his claims against his employer and his union. Here, the district court concluded that the Service did not violate the collective bargaining agreement. Since that conclusion was enough to grant summary judgment to the Service, the district court did not address Truhlar's claim against the union. On appeal, the union renewed its argument that it did not breach its duty of fair representation. Truhlar never responded to that argument, explaining at oral argument that he did not think he was required to address a position he had not lost below. The Court explained that an appellee may defend the district court's judgment on any ground raised below. The Court concluded that Truhlar had therefore forfeited any opposition to the union's position on fair representation. Notwithstanding that conclusion, the Court reviewed Truhlar's district court submissions on the topic and concluded that Truhlar would lose on the merits as well. Truhlar's burden was to show that the union's actions were arbitrary and discriminatory or in bad faith. The Court noted that the union representative met with the postmaster, reviewed the internal investigation, reviewed the Department's report and decision, and considered the actions of the prosecutor before reaching his decision to withdraw the grievances. Far from arbitrary, the Court considered the representative's decision rational.
