James E. Peterson v. Harold Kennedy, Richard A. Berthelsen, and National Football League Players Association

Appellant James Peterson brought suit against the National Football League Players Association ("NFLPA" or "union") and two of its attorneys, claiming that the union, through the named attorneys, had furnished him with inaccurate advice upon which he detrimentally relied in pursuing a grievance against his ex-ballclub, the Tampa Bay Buccaneers. Peterson appeals from the district court's decisions to grant summary judgment in favor of one of the individually named union attorneys, to issue a directed verdict in favor of the other union attorney, and to grant the NFLPA's motion for a judgment notwithstanding the verdict after the jury had ruled in his favor. We affirm each of the trial court's decisions.

A. Events Giving Rise to Peterson's Grievance

James Peterson played college football at San Diego State University. After graduating with a physical education degree in 1973, Peterson was drafted by the Los Angeles Rams of the National Football League (NFL). He played for the Rams until 1976, at which time he was traded to the Tampa Bay Buccaneers.

In the summer of 1976, Peterson signed three separate one-year contracts with Tampa Bay for the 1976, 1977, and 1978 football seasons. Each of the contracts contained a standard clause providing that if Peterson were unable to play professional football because of an injury incurred in the performance of services under that contract, the club would continue to pay him his full salary during the remainder of the contract term. In addition, the club agreed to Peterson's request to include a special "injury protection" clause in the 1977 contract. That clause specified that if Peterson were unable to play football in either 1977 or 1978 because of a football-related injury, he would receive the full salary to which he was entitled for the year or years that the injury prevented him from playing. Each of the contracts also contained a provision authorizing the ballclub to terminate the agreement if, in the opinion of the head coach, Peterson's level of performance was "unsatisfactory" as compared to that of other members of the club's squad of players.

Peterson's contracts incorporated the terms of the collective bargaining agreement entered into between the NFLPA and the NFL Management Council. The collective bargaining agreement contemplated two distinct grievance procedures by which a player could contest a club's decision to terminate his contract. An "injury grievance" was the proper procedure to be employed by a player seeking to enforce a club's contractual obligation to pay his salary when he incurred an injury in the performance of his services under the contract. A "non-injury" grievance was the appropriate means to resolve all other disputes involving the enforcement of a player's contract. An injury grievance was required to be filed within 20 days of the date on which the dispute arose, a non-injury grievance within 60 days of that date. There were also differences with respect to the intermediate procedures applicable to the two classifications of grievances, but the final step in each was a hearing before a neutral arbitrator. A player was authorized to file and process both forms of grievance on his own without any involvement by the NFLPA.

Peterson was injured in the third game of the 1976 football season. He had surgery on his right knee and was sidelined for the rest of the season. The club honored its contractual obligation to pay Peterson's salary over the balance of the 1976 season. After his surgery, Peterson underwent a medically supervised rehabilitation program. He reported to the Tampa Bay pre-season camp in mid-July, 1977. After passing a physical examination administered by the team's physician, Peterson participated fully in all practices and drills during the first seven or eight days of training camp.

The club's records reveal that on July 22, 1977, Peterson was verbally advised that he had been "cut" from the team and placed on waivers. Peterson received written notification that his 1977 and 1978 contracts had been terminated on July 25, 1977.

Peterson believed that he was cut from the team because of reduced mobility attributable to the knee injury that he suffered in the 1976 season. He claimed that, under the "injury protection" clause of the 1977 contract, the club remained obligated to pay him his full salary for both the 1977 and 1978 football seasons. The club disagreed. Its officials told Peterson that he had been released because he lacked sufficient skill to make the team, not because of his knee injury, and that he was therefore not entitled to payment under the "injury protection" clause.

At trial, the parties vigorously disputed the extent of the NFLPA's involvement in the pursuit of Peterson's grievance against Tampa Bay. Peterson claimed that he called his agent, Richard Mangiarelli, as soon as he was told that he had been released. Mangiarelli testified that he called the NFLPA's main office the following day to seek assistance in enforcing the injury protection clause of Peterson's contract against Tampa Bay. Mangiarelli claimed that he spoke with Harold Kennedy, a recent law school graduate who was then serving as an assistant both to the NFLPA's executive director, Edward Garvey, and to the union's staff counsel, Richard Berthelsen. Mangiarelli said that Kennedy represented to him that he was a practicing attorney, when, in fact, he was not. Mangiarelli testified that he informed Kennedy of the injury protection clause in Peterson's contract and that Kennedy then dictated to him an injury grievance letter with instructions to send the letter to the ballclub. Peterson signed the injury grievance letter on August 5, 1977, within two weeks of the date that he was notified of his release.

Mangiarelli further testified that once the union assured him that it would handle Peterson's grievance, in mid-August, 1977, he put Peterson in direct contact with Kennedy. Peterson claimed that he remained in frequent contact with both Kennedy and Berthelsen throughout the remainder of 1977 in order to monitor the progress of his grievance. He mentioned specifically that, in early September, he spoke with Kennedy about the injury protection clause and that Kennedy assured him that the union had access to his contract. Peterson testified that he continually relied on the assurances of the two union representatives that they were handling his grievance for him.

The testimony of the union's witnesses differed sharply from that presented by Peterson and Mangiarelli. Kennedy declared that he could not recall ever speaking with either Mangiarelli or Peterson and that he had no recollection of working on Peterson's grievance. Berthelsen testified that he first became aware of Peterson's grievance in late January or early February of 1978. Berthelsen claimed that it was not until mid-February, 1978 that the union was sent copies of Peterson's contract and that he was made aware of the injury protection clause contained therein. Berthelsen explained that after examining the contracts he determined that Peterson should have filed a non-injury grievance and that, on February 17, 1978, he attempted to "rechannel" Peterson's original injury grievance into a non-injury claim. Berthelsen's efforts were undertaken well beyond the 60-day period in which Peterson could have timely filed a non-injury grievance.

The rechanneled non-injury grievance was heard by Arbitrator James Scearce on June 16, 1978. After a hearing in which the merits of Peterson's claim under the injury protection clause were fully argued, Arbitrator Scearce dismissed the grievance as untimely filed. He ruled that Berthelsen's efforts in February, 1978 to rechannel Peterson's claim as a non-injury grievance were undertaken more than 60 days after the dispute arose and that the grievance was therefore time-barred. Arbitrator Scearce did not address the merits of Peterson's claim that, because his release was attributable to the knee injury suffered in the 1976 season, the club remained obligated, under the "injury protection" clause, to honor his 1977 and 1978 contracts. Peterson has not challenged the propriety of Arbitrator Scearce's ruling.1

Peterson complained to Berthelsen that the NFLPA was at fault for the dismissal of the non-injury grievance. The NFLPA then advised Peterson that it planned to reactivate the original injury grievance. The injury grievance was subsequently heard by Arbitrator Marlin M. Volz. The issue considered by Arbitrator Volz was whether Peterson was entitled to his salary under the 1977 contract pursuant to the club's obligation to continue paying his salary if he was injured in the performance of services under that contract. Arbitrator Volz ruled against Peterson, finding that Peterson failed to establish that he was physically unable to play professional football at the time that the contract was terminated because of an injury incurred under that contract. The arbitrator apparently based his decision primarily on the fact that Peterson did not incur an injury during the term of the 1977 contract.2 He also determined, however, that Peterson was not physically unable to play football at the time he was released by Tampa Bay. The latter finding would, in itself, have justified the denial of Peterson's claim.3

Dissatisfied with the union's representation, Peterson filed the instant action in district court in November, 1980. The complaint was not served on any of the defendants, however, during the period that the union continued to pursue Peterson's injury grievance before Arbitrator Volz. Shortly after the injury grievance was dismissed, Peterson filed an amended complaint which was ultimately served on the defendants in early February, 1982.

The amended complaint alleged that the NFLPA had breached its duty of fair representation by erroneously advising Peterson to file an injury grievance and by failing to rectify its error while there was still time to do so. It also alleged that the union did not conduct an adequate investigation prior to rendering its advice. The complaint included a professional malpractice claim against the union attorneys, Berthelsen and Kennedy, for the same misconduct which formed the basis of Peterson's breach of duty claim against the union.

The district court entered summary judgment in favor of Kennedy, finding that he lacked sufficient contacts with the State of California to enable the court to exercise personal jurisdiction over him. After a three and one-half day jury trial, the district court issued a directed verdict in favor of Berthelsen, ruling that the legal malpractice claim against him was "subsumed" in and precluded by Peterson's breach of duty claim against the union. The jury returned a verdict against the NFLPA for the full amount sought by Peterson, finding that the union had breached its duty of fair representation in handling his grievance. The trial judge, however, granted the union's motion for a judgment notwithstanding the verdict (JNOV). On appeal, Peterson challenges each of the trial court's rulings.

As a threshold matter, we reject the union's claim that Peterson's complaint was untimely filed. The Supreme Court has held that the National Labor Relations Act's (NLRA) six-month statute of limitations for the filing of unfair labor practice claims is applicable to suits against a union for breach of the duty of fair representation. DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 169, 103 S.Ct. 2281, 2293, 76 L.Ed.2d 476 (1983). Prior to DelCostello, federal courts applied the relevant state statute of limitations to breach of duty suits against labor unions. See, e.g., Price v. Southern Pacific Transportation Co., 586 F.2d 750, 752 (9th Cir.1978).

Until quite recently, we had repeatedly refused to give DelCostello retroactive effect. See, e.g., Rodriquez v. Union Carbide Corp., 735 F.2d 365, 365-66 (9th Cir.1984); Barina v. Gulf Trading & Transportation Co., 726 F.2d 560, 564 (9th Cir.1984). However, we have now made it clear that DelCostello is to be given retroactive application when doing so serves to lengthen rather than shorten the limitations period that would otherwise be applicable under state law. See Aragon v. Federated Department Stores, Inc., 750 F.2d 1447, 1451 (9th Cir.1985); Glover v. United Grocers, Inc., 746 F.2d 1380, 1382 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985).

The parties disagree as to the date on which Peterson's cause of action arose. The union maintains that the cause of action accrued either in February, 1978, when Peterson first became aware of the union's alleged error, or in November, 1978, when Arbitrator Scearce dismissed the non-injury grievance as untimely. Peterson contends that the cause of action did not arise until November 13, 1981, the date that his injury grievance was ultimately dismissed by Arbitrator Volz.

We need not determine the exact date that Peterson's cause of action accrued because we conclude that the complaint was timely filed whether the cause of action arose as early as 1978 or as late as 1981. If, as the union contends, Peterson's claim accrued in 1978, the timeliness of the complaint would be assessed under California's three-year statute of limitations,4 and would be timely commenced regardless of which accrual date suggested by the union is applicable.5 If, as Peterson argues, the cause of action did not accrue until November, 1981, his complaint would be timely under the NLRA's six-month statute of limitations.6

The district court granted the union's motion for a judgment notwithstanding the verdict (JNOV) on two independent grounds: (1) the evidence demonstrated that the union's conduct amounted to no more than negligence, and negligent conduct on the part of a union is legally insufficient to sustain a claim for breach of the duty of fair representation; and (2) assuming that the union breached its duty, Peterson was not damaged thereby because he would not have prevailed on the non-injury grievance even if it had been timely filed.7 We need only consider the first ground.

We review the propriety of a JNOV under the same standard that is applied by the district court. See, e.g., Garter-Bare Co. v. Munsingwear, Inc., 723 F.2d 707, 709 (9th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 381, 83 L.Ed.2d 316 (1984). A JNOV is proper when the evidence permits only one reasonable conclusion as to the verdict. Id. We view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Id. A JNOV is improper if reasonable minds could differ over the verdict. See, e.g., Yeamen v. United States, 584 F.2d 322, 326 (9th Cir.1978).

Peterson's breach of duty claim is based principally on allegations that the union, through its representatives, erroneously advised him to file an injury grievance and that the union failed to rectify its error while there still was time to do so. We assume arguendo that the advice was in fact erroneous, although it is not entirely clear that such was the case. See supra note 2. Viewed in the light most favorable to Peterson, the evidence presented at trial established, inter alia, that: Kennedy, after being informed that Peterson's 1977 contract contained an "injury protection" clause, advised Peterson's agent to file an injury grievance against Tampa Bay; based on Kennedy's advice, Peterson designated his claim as an injury grievance; the union failed to recognize its error within the 60 day period in which a non-injury grievance could have timely been filed; union representatives assured Peterson on many occasions during this 60 day period that the union was handling his grievance for him; as a result of the union's assurances, Peterson failed to file a non-injury grievance within the 60 day period.

The district court concluded that the evidence presented was legally insufficient to sustain the jury's verdict that the union breached its duty of fair representation. We agree. After reviewing all of the evidence in the light most favorable to Peterson, we conclude that the union did not breach its duty of fair representation; the record is devoid of evidence that the union acted in an arbitrary, discriminatory, or bad faith manner.

The duty of fair representation is a judicially established rule imposed on labor organizations because of their status as the exclusive bargaining representative for all of the employees in a given bargaining unit. The Supreme Court recently explained the basis and scope of the duty:

The duty of fair representation exists because it is the policy of the National Labor Relations Act to allow a single labor organization to represent collectively the interests of all employees within a unit, thereby depriving individuals in the unit of the ability to bargain individually or to select a minority union as their representative. In such a system, if individual employees are not to be deprived of all effective means of protecting their own interests, it must be the duty of the representative organization to "serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct."

DelCostello, 462 U.S. at 164 n. 14, 103 S.Ct. at 2290 n. 14 (quoting Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967) ).

A union breaches its duty of fair representation only when its conduct toward a member of the collective bargaining unit is "arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, 386 U.S. at 190, 87 S.Ct. at 916. The duty is designed to ensure that unions represent fairly the interests of all of their members without exercising hostility or bad faith toward any. It stands "as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law." Id. at 182, 87 S.Ct. at 912.

The Supreme Court has long recognized that unions must retain wide discretion to act in what they perceive to be their members' best interests. See, e.g., Ford Motor Co. v. Huffman, 345 U.S. 330, 337-38, 73 S.Ct. 681, 685-86, 97 L.Ed. 1048 (1953). To that end, we have "stressed the importance of preserving union discretion by narrowly construing the unfair representation doctrine." Johnson v. United States Postal Service, 756 F.2d 1461, 1465 (9th Cir.1985, as amended May 3, 1985) (citation omitted). We have emphasized that, because a union balances many collective and individual interests in deciding whether and to what extent it will pursue a particular grievance, courts should "accord substantial deference" to a union's decisions regarding such matters. Id. at 1466.

A union's representation of its members "need not be error free." Castelli v. Douglas Aircraft Co., 752 F.2d 1480, 1482 (9th Cir.1985). We have concluded repeatedly that mere negligent conduct on the part of a union does not constitute a breach of the union's duty of fair representation. See, e.g., id; Clayton v. Republic Airlines, Inc., 716 F.2d 729, 732 (9th Cir.1983); Singer v. Flying Tiger Line, Inc., 652 F.2d 1349, 1354 (9th Cir.1981); Stephens v. Postmaster General, 623 F.2d 594, 596 (9th Cir.1980).

Peterson recognizes and does not challenge the established principle that a union's negligence cannot give rise to a suit for breach of the duty of fair representation. Furthermore, he does not contend that the NFLPA or any of its representatives acted toward him or his grievance in a discriminatory or bad faith manner. Rather, Peterson claims that the union breached its duty to represent him fairly because its mishandling of his grievance was so egregious as to constitute "arbitrary" conduct.

Whether in a particular case a union's conduct is "negligent", and therefore non-actionable, or so egregious as to be "arbitrary", and hence sufficient to give rise to a breach of duty claim, is a question that is not always easily answered. A union acts "arbitrarily" when it simply ignores a meritorious grievance or handles it in a perfunctory manner, see Vaca v. Sipes, 386 U.S. at 191, 87 S.Ct. at 917, for example, by failing to conduct a "minimal investigation" of a grievance that is brought to its attention. See Tenorio v. National Labor Relations Board, 680 F.2d 598, 601 (9th Cir.1982). We have said that a union's conduct is "arbitrary" if it is "without rational basis," see Gregg v. Chauffeurs, Teamsters and Helpers Union Local 150, 699 F.2d 1015, 1016 (9th Cir.1983), or is "egregious, unfair and unrelated to legitimate union interests." See Johnson v. United States Postal Service, 756 F.2d 1461, 1465 (9th Cir.1985). In Robesky v. Qantas Empire Airways Ltd., 573 F.2d 1082, 1089-90 (9th Cir.1978), we held that a union's unintentional mistake is "arbitrary" if it reflects a "reckless disregard" for the rights of the individual employee, but not if it represents only "simple negligence violating the tort standard of due care." In Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, 1274 (9th Cir.1983), we concluded that unintentional union conduct may constitute a breach of the duty of fair representation in situations where "the individual interest at stake is strong and the union's failure to perform a ministerial act completely extinguishes the employee's right to pursue his claim."8

There are some significant general principles that emerge from our previous decisions. In all cases in which we found a breach of the duty of fair representation based on a union's arbitrary conduct, it is clear that the union failed to perform a procedural or ministerial act, that the act in question did not require the exercise of judgment and that there was no rational and proper basis for the union's conduct. For example, we found a union acted arbitrarily where it failed to: (1) disclose to an employee its decision not to submit her grievance to arbitration when the employee was attempting to determine whether to accept or reject a settlement offer from her employer, see Robesky, 573 F.2d at 1091; (2) file a timely grievance after it had decided that the grievance was meritorious and should be filed, see Dutrisac, 749 F.2d at 1274; (3) consider individually the grievances of particular employees where the factual and legal differences among them were significant, see Gregg, 699 F.2d at 1016; or (4) permit employees to explain the events which led to their discharge before deciding not to submit their grievances to arbitration. See Tenorio, 680 F.2d at 601.

We have never held that a union has acted in an arbitrary manner where the challenged conduct involved the union's judgment as to how best to handle a grievance. To the contrary, we have held consistently that unions are not liable for good faith, non-discriminatory errors of judgment made in the processing of grievances. See, e.g., Castelli, 752 F.2d at 1482; Dutrisac, 749 F.2d at 1273; Singer v. Flying Tiger Line, Inc., 652 F.2d at 1355; Ness v. Safeway Stores, Inc., 598 F.2d 558, 560 (9th Cir.1979); see also Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 571, 96 S.Ct. 1048, 1059, 47 L.Ed.2d 231 (1976). We have said that a union's conduct may not be deemed arbitrary simply because of an error in evaluating the merits of a grievance, in interpreting particular provisions of a collective bargaining agreement, or in presenting the grievance at an arbitration hearing. See Dutrisac, 749 F.2d at 1273. In short, we do not attempt to second-guess a union's judgment when a good faith, non-discriminatory judgment has in fact been made. It is for the union, not the courts, to decide whether and in what manner a particular grievance should be pursued. We reaffirm that principle here.

Sound policy reasons militate against imposing liability on unions for errors of judgment made while representing their members in the collective bargaining process. In Dutrisac, we recognized that holding unions liable for such errors would serve ultimately to "defeat the employees' collective bargaining interest in having a strong and effective union." 749 F.2d at 1273. If unions were subject to liability for "judgment calls", it would necessarily undermine their discretion to act on behalf of their members and ultimately weaken their effectiveness. In the long run, the cost of recognizing such liability would be borne not by the unions but by their memberships. Not only would the direct costs of adverse judgments be passed on to the members in the form of increased dues, but, more importantly, unions would become increasingly reluctant to provide guidance to their members in collective bargaining disputes. Such a result would be inconsistent with our oft-repeated commitment to construe narrowly the scope of the duty of fair representation in order to preserve the unions' discretion to decide how best to balance the collective and individual interests that they represent.

Freeing a union from liability for ordinary acts of negligence in the performance of its representational responsibilities requiring judgment on its part, reflects a balance of the union's organizational interest against the individual interests of its members. Our cases, and those of the Supreme Court, tip the balance in favor of the union, and accept the consequence of uncompensated loss sustained by an individual union member. Whether liability for a loss occasioned by ordinary negligence of the union might be spread more equitably among the membership as a whole, rather than be borne by the individual member who is harmed, is no longer an open question.

In applying the foregoing principles to the case at hand, we conclude, as a matter of law, that Peterson failed to establish that the NFLPA breached its duty of fair representation. As mentioned, Peterson does not contend that the union acted in a discriminatory or bad faith manner toward either him or his grievance. He relies exclusively on his claim that the union's error was so egregious as to be "arbitrary." We disagree. The alleged error was one of judgment. Viewing the evidence in the light most favorable to Peterson, the most that can be said is that the union provided him with incorrect advice and did not alter its judgment until it was too late to rectify the error. In this case, deciding whether to file an injury or a non-injury grievance was not a purely mechanical function; the union attorneys were required to construe the scope and meaning of the injury and non-injury grievance provisions of the collective bargaining agreement and to determine which of the two grievance procedures was more appropriate. As we have indicated earlier, the answer was not as simple as a literal reading of the two contract sections might indicate. See supra note 2.

Peterson also contends that the union failed adequately to investigate the facts and circumstances of his claim before advising him to file an injury grievance. Peterson does not specify exactly what the union neglected to do; however, his only possible claim appears to be that the union failed to examine copies of his contracts with Tampa Bay before rendering its advice. We find this contention insufficient as a matter of law. Both Peterson and his agent testified that they informed Kennedy of the inclusion of the "injury protection" clause in Peterson's 1977 contract and described its substance to him. We do not believe that a further examination of that provision, or of any other provision in Peterson's contracts, would have better enabled Kennedy to advise Peterson as to which form of grievance to file. It was the grievance and arbitration provisions of the standard collective bargaining agreement, rather than the "injury protection" clause of Peterson's contract, that the union was required to construe in order to determine which grievance procedure was applicable to Peterson's claim. Examining the text of the injury protection clause would not have materially influenced the union's judgment in that regard.

Although the union's representatives may have erred in initially advising Peterson to file an injury grievance and in failing to recognize its mistake in time to file a non-injury grievance in its stead, we are unwilling to subject unions to liability for such errors in judgment. Accordingly, we affirm the district court's conclusion that the evidence presented was insufficient, as a matter of law, to support the jury's verdict against the union.

B. The Directed Verdict in Favor of Berthelsen

The district court issued a directed verdict in favor of Berthelsen, concluding that Peterson's malpractice claim against the union attorney was "subsumed" in and precluded by the breach of duty claim asserted against the union. We review a directed verdict under the same standard as that which we apply when reviewing a JNOV. A directed verdict is proper when the evidence permits only one reasonable conclusion as to the verdict. See, e.g., Shakey's Inc. v. Covalt, 704 F.2d 426, 430 (9th Cir.1983). It is inappropriate if there is substantial evidence to support a verdict for the non-moving party. See, e.g., Id.; Fabrica Inc. v. El Dorado Corp., 697 F.2d 890, 892 (9th Cir.1983). We consider all of the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Id.

The material facts are uncontested. As it customarily did for its members, the NFLPA undertook Peterson's grievance free of charge to him. Berthelsen, as chief staff counsel for the NFLPA, was the union official ultimately responsible for the handling of Peterson's grievance. Dating back to 1972, Berthelsen had been employed as a full-time salaried member of the union's staff. The evidence is undisputed that Berthelsen's sole involvement with Peterson's grievance was in the capacity of staff counsel for the NFLPA; he was not privately retained by Peterson to pursue the grievance.

The district court dismissed the damage claim against Berthelsen, concluding that Peterson could not proceed against him for alleged misconduct that occurred during the course of Berthelsen's employment as the union's staff attorney. Peterson contends that, as an attorney, Berthelsen remains subject to liability for professional malpractice independent of the union's potential liability for breach of its duty of fair representation. He claims that the district court erred in concluding that his malpractice claim against Berthelsen was "subsumed" in his claim against the union. We reject Peterson's contention. We believe that sound policy reasons as well as established precedent compel the conclusion that attorneys who perform services for and on behalf of a union may not be held liable in malpractice to individual grievants where the services the attorneys perform constitute a part of the collective bargaining process.

1. The Atkinson Rule: Union Officers and Employees Are Immune From Personal Liability For Acts Undertaken As Union Representatives

It has long been recognized that union officers and employees are not individually liable to third parties for acts performed as representatives of the union in the collective bargaining process. In Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318,