Stiles v . Chemical & Production CV-08-208-JM 09/24/09 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Rosanne Stiles
v. Civil N o . 08-cv-208-JM Opinion N o . 2009 DNH 141P Chemical & Production Workers’ Union, Local N o . 3 0 , AFL-CIO
O R D E R
Plaintiff Rosanne Stiles’ amended complaint sets forth two
causes of action: (1) Count I , based on 29 U.S.C. § 185, alleges
“a breach of the terms of the applicable collective bargaining
agreement as it relates to the representation of the plaintiff by
the defendant” (¶ 1 5 ) ; and (2) Count I I , also based on 29 U.S.C.
§ 185, asserts “a breach of the defendant’s duty to fairly
represent the plaintiff as it relates to the disciplinary action
taken against her by the defendant” (¶ 1 9 ) . Both counts claim:
(a) a failure to properly investigate; (b) a failure to properly
prepare; (c) a failure to communicate; and (d) a failure to
pursue the grievance and to settle over plaintiff’s objection.
Defendant Chemical & Production Workers’ Union, Local N o . 30 has
moved for summary judgment (document n o . 11) claiming there is no genuine dispute of material fact that it did not breach any duty
owed to plaintiff in either the collective bargaining agreement
or the grievance arbitration proceedings and, therefore, it is
entitled to summary judgment on both counts. Plaintiff objects
(document n o . 1 2 ) . For the reasons set forth below, defendant’s
motion is granted.
Discussion
1. Background1
Plaintiff worked for over 22 years as a waitress for Volume
Services of America, Inc., d/b/a Centerplate (“Centerplate”).
Centerplate provided food and beverage services to Rockingham
Ventures at its track facility known as Rockingham Park. Through
Centerplate, plaintiff worked at Rockingham Park.
On January 6, 2007, plaintiff was suspended from work
following an altercation she had with her manager. Plaintiff was
upset because another waitress had apparently left her assigned
shift location early to go work in Rockingham Park’s poker room,
1 More detailed facts are discussed in the analysis section as they pertain to the various issues before the court. Only a brief summary of the incidents out of which this action arose is set forth here, based on defendant’s statement of material facts. See Def.’s Mem. in Supp. of Mot. for Summ. J. (document n o . 11-2) (“Def.’s Mem.”) at 1-13.
2 which was against company policy. When plaintiff’s shift ended
that day, she went into the poker room to tell the manager what
she had observed. In front of customers, plaintiff “protested”
this reassignment and told her manager she was going to report it
to “corporate.” A disagreement ensued, ending with the manager
following plaintiff out of the room and warning her that she
would be “written up.” Plaintiff was suspended from work while
the incident was investigated.
On January 9, 2007, defendant’s business agent, John
McDonough (“McDonough”), met with plaintiff, who had filed a
grievance about her suspension. Plaintiff explained to McDonough
the company rule that waitresses were not allowed to leave a
shift early and go into the poker room, and admitted she yelled
at her manager that she would report the January 6 shift change
to corporate, which prompted him to chase her across the poker
room. Plaintiff, McDonough and another union representative then
met with Centerplate officials to discuss plaintiff’s grievance.
Centerplate informed plaintiff and the union representatives that
it had statements from witnesses to the incident that reported
plaintiff had used profanity. They also told the union
representative that Centerplate had an established grievance
3 procedure plaintiff should have followed. Although McDonough
urged Centerplate to reinstate plaintiff, Centerplate decided to
terminate her. As a result, plaintiff’s grievance was amended to
include the termination and seek arbitration.
On January 2 5 , 2007, Centerplate provided McDonough with
copies of the statements about plaintiff’s behavior on January 6.
The statements were from a manager, three employees and a
customer. McDonough began to investigate plaintiff’s work
history and learned she had been outspoken and temperamental with
management and other employees several times previously. Many of
those outbursts had been tolerated, but plaintiff had received
disciplinary write-ups on at least five previous occasions
between 1986 and 2000. In December 2004, plaintiff had been
banned by Rockingham for one week because of her inappropriate
conduct toward other track employees. Significantly, in January
2005 Centerplate had provided plaintiff with “a final written
warning and notice that if she engaged in any verbally abusive
behavior towards management or other employees in the future, she
would be terminated.” Def.’s Mem. at 3 .
Following this investigation, defendant union’s attorney,
John Ward, concluded that arbitration should be demanded,
4 thinking that an arbitrator might reinstate plaintiff because of
her many years of service despite the strong evidence that the
altercation occurred as reported. Ward and Centerplate agreed on
an arbitrator and set a hearing date for September 2 0 , 2007. On
July 1 9 , 2007, Ward sent a document request to Centerplate
seeking numerous documents relevant to plaintiff’s grievance. He
also wrote a letter to plaintiff’s attorney, Scott Gleason,
advising him of the September 20 hearing date and informing him
of a planned August meeting with plaintiff.
To prepare for the hearing, McDonough agreed to travel to
New Hampshire in August 2007 to meet with plaintiff and any
witnesses she might have. McDonough left several voice messages
with plaintiff asking her to call him on his cell phone to
arrange to meet on August 8 and 9. Instead of calling his cell
phone, plaintiff called McDonough’s office on August 9, when he
was already in New Hampshire, instructing him to arrange through
Gleason the meeting with her. Because McDonough and plaintiff
never met, defendant requested the September 20 hearing be
postponed to give them additional time to prepare. After
notifying plaintiff of her need to cooperate, Ward and McDonough
arranged for another meeting with her on September 20 to review
5 evidence, including both documents and witnesses. Plaintiff did
meet with Ward and McDonough as planned, but failed to provide
any potential witnesses that day or to identify any documents for
the hearing. Plaintiff told Ward and McDonough that she
suspected Rockingham would not let her return to its property,
but got upset when asked why she thought that. Plaintiff told
Ward that it was his job to get her back to work and that Gleason
would handle matters with Rockingham.
Defendant worked with Centerplate to exchange information in
preparation for the arbitration hearing, now scheduled for
October 1 5 . Ward reminded plaintiff by letter dated October 3
that she needed to provide him with witness information and any
documents she thought were relevant to her case. Finally on
Friday afternoon, October 1 2 , with the hearing scheduled to begin
Monday, October 1 5 , plaintiff provided Ward with the names of 5
witnesses. Ward met with those witnesses Monday morning before
the hearing began. Ward never received the requested information
regarding plaintiff’s interim wages, however, so Ward sought and
obtained Centerplate’s agreement to bifurcate the arbitration
hearing to address the termination first and the back-pay issue
subsequently. After a full day of hearing, the arbitration was
6 continued to December 1 8 , 2007.
On October 1 7 , Centerplate expressed an interest in settling
the grievance, which Ward communicated to plaintiff. Although
plaintiff was not receptive to the idea initially, she eventually
agreed to consider a settlement that included a waiver of her
demand for reinstatement. She advised Ward that she would
discuss that proposal further with Gleason and get back to Ward
with her demand. She also promised she would provide Ward with
the documents needed to calculate her lost wages.
On November 1 9 , Centerplate confirmed plaintiff’s earlier
suspicion that Rockingham would not allow her to return to its
property even if she succeeded in her arbitration. With this
news defendant reassessed its strategy, because it had assumed
plaintiff was more likely to get reinstatement than back-pay and
now it was apparent reinstatement was not a viable remedy. That
same day Centerplate offered to settle the grievance for $2,500.
Ward called plaintiff to advise her of Rockingham’s decision and
relay Centerplate’s settlement offer. Plaintiff was upset by the
offer and expressed as much to Ward. Ward asked plaintiff to
provide him with the documents needed to calculate her lost wages
and to respond to Centerplate’s settlement by November 3 0 .
7 Plaintiff did not comply with either request.
Defendant then estimated plaintiff’s earnings would have
been $22,000, that her interim earnings were approximately
$11,000 since her termination and offered to accept a figure of
$11,000 in settlement of plaintiff’s claim. Centerplate
countered with a $5,000 offer on December 1 2 , 2007. Defendant
rejected that offer, but proposed a non-wage settlement of
$15,000, along with neutral recommendations and a mutual release,
because defendant thought its proposal was fair, informed
Centerplate it would accept the settlement even without
plaintiff’s approval.
The parties negotiated the terms back and forth before
finally agreeing on December 14 to a settlement for $10,000
payment to plaintiff for back-pay and other injuries in exchange
for, among other things, mutual releases. Ward advised Gleason
of the settlement agreement. On December 1 7 , Gleason informed
Ward that plaintiff rejected the settlement, but defendant
decided to accept it over plaintiff’s objections.
On January 2 4 , 2008, Ward sent Gleason a detailed letter
explaining the settlement terms and the many reasons why
defendant had agreed to accept i t . Ward emphasized that
8 Rockingham’s decision to ban plaintiff from returning to work on
its property was critical to the settlement decision, because
plaintiff’s disciplinary history made an award of back-pay
unlikely, and Rockingham’s decision made any potential
reinstatement order a nullity. Ward advised Gleason that he
believed the settlement was a better result than plaintiff would
have received through arbitration. On March 1 9 , Gleason finally
responded to Ward’s letter, disagreeing with his assessment. On
April 3 , Ward sent Gleason the final settlement agreement for
review and comment. Gleason objected to releasing Rockingham
from liability, and Ward brought that concern back to Centerplate
in an effort to remove that term from the agreement. Centerplate
would not agree to removing the Rockingham release, however,
which Ward advised Gleason of on July 3 , 2008.
Plaintiff’s tax returns indicate that she earned $19,437 in
2006. In 2007, the year she was terminated from Centerplate, she
reported $5,596 in wages, salary and tips from employment and
$4,628 in unemployment compensation, for a total of $10,224.
2. Standard of Review
Summary judgment is appropriate only “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
9 together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). A genuine issue is one “that properly can be resolved
only by a finder of fact because [it] may reasonably be resolved
in favor of either party.” Anderson v . Liberty Lobby, Inc., 477
U.S. 2 4 2 , 250 (1986). A material fact is one “that might affect
the outcome of the suit.” Id. at 248. In ruling on a motion for
summary judgment, the court construes the evidence and all
inferences reasonably drawn therefrom in the light most favorable
to the nonmovant. See Navarro v . Pfizer Corp., 261 F.3d 9 0 , 94
(1st Cir. 2001); Suarez v . Pueblo Int’l, Inc., 229 F.3d 4 9 , 53
(1st Cir. 2000).
The party moving for summary judgment bears the initial
responsibility of demonstrating the absence of a genuine issue of
material fact. Celotex Corp. v . Catrett, 477 U.S. 3 1 7 , 323
(1986). Once the moving party has met its burden, the burden
shifts to the nonmovant to “produce evidence on which a
reasonable finder of fact, under the appropriate proof burden,
could base a verdict for i t ; if that party cannot produce such
evidence, the motion must be granted.” Ayala-Gerena v . Bristol
10 Myers-Squibb Co., 95 F.3d 8 6 , 94 (1st Cir. 1996) (citing Celotex,
477 U.S. at 323 and Anderson 477 U.S. at 2 4 9 ) . Neither
conclusory allegations, improbable inferences, nor unsupported
speculation are sufficient to defeat summary judgment. See
Carroll v . Xerox Corp., 294 F.3d 2 3 1 , 236-37 (1st Cir. 2002); see
also Price v . Canadian Airlines, 429 F. Supp. 2d 459, 461 (D.N.H.
2006).
In order to “properly oppose” a motion:
an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.
Fed. R. Civ. P. 56(e). In addition, this Court’s local rules
provide that:
All properly supported material facts set forth in the moving party’s factual statement shall be deemed admitted unless properly opposed by the adverse party.
United States District Court District of New Hampshire Local Rule
(“LR”) 7.2(b)(2). Plaintiff has failed to comply with the
affidavit requirements in Fed. R. Civ. P. 56 (c) & ( e ) . She also
has not fully complied with the requirement that she provide “a
11 short and concise statement of material facts, supported by
appropriate record citations, as to which [she] contends a
genuine dispute exists so as to require a trial.” LR 7.2(b)(2)
(emphasis added).
When, as is the case here, the nonmoving party fails to
provide any documentation to refute the moving party’s properly
supported statement of material facts, those facts must be
accepted as true. See LR 7.2(b)(2); see also Mariani-Colon v .
Dep’t of Homeland Sec., 511 F.3d 216, 219 (1st Cir. 2007)
(deferring to district court’s enforcement of local rules). An
improperly supported opposition motion does not automatically
give rise to a grant of summary judgment, however, because the
moving party still bears the burden of demonstrating no genuine
issue of material fact exists on any claim or defense it is
asserting. See Cordi-Allen v . Halloran, 470 F.3d 2 5 , 28 (1st
Cir. 2006) (citing authority); see also Aguiar-Carrasquillo v .
Agosto-Alicea, 445 F.3d 1 9 , 25 (1st Cir. 2006) (same); Fed. R.
Civ. P. 56 (c) & ( e ) . The district court must still review the
merits of the case based on the record before i t , to determine
whether summary judgment is appropriate. See Aguiar-Carrasquillo
445 F.3d at 2 5 . Once the record is so assessed, summary judgment
12 enables the court to “pierce the boilerplate of the pleadings”
and “dispos[e] of cases in which no trial-worthy issue exists.”
Quinn v . City of Boston, 325 F.3d 1 8 , 28 (1st Cir. 2003) (citing
Suarez, 229 F.3d at 5 3 ) .
3. Analysis of Plaintiff’s Claims
a. Count I
Count I , to the extent that it is anything other than
another iteration of Count I I , is somewhat of a mystery.
Plaintiff does not provide any explanation of what terms of the
collective bargaining agreement, as they relate to representation
of her, defendant allegedly breached. She simply asserts that
defendant’s conduct breached “the terms of the applicable
collective bargaining agreement” without citing which terms give
rise to an individual cause of action against the union. See Am.
Compl., ¶ 1 5 . A review of that agreement, see Def.’s Mem., Ex.
14 (“Collective Bargaining Agreement”) (document n o . 11-34), does
not reveal any provision relating to defendant’s representation
of plaintiff that defendant could have breached. Plaintiff’s
objection to the motion for summary judgment does not offer any
13 facts or argument to support the claim.2 The Collective
Bargaining Agreement simply has no language creating an
enforceable obligation against the union by individual employees.
The law recognizes that a union, as the exclusive bargaining
representative of employees, has a statutory duty to fairly
represent those employees both in collectively bargaining for the
employees and in enforcing the resulting agreement. See United
Steelworkers of America, AFL-CIO-CLC v . Rawson, 495 U.S. 3 6 2 , 372
(1990) (citing Vica v . Sipes, 386 U.S. 1 7 1 , 177 (1967) to show
the rule is now “well established”). This duty of fair
representation does not arise from the collective bargaining
agreement, but instead arises from the National Labor Relations
Act itself and is breached “only when a union’s conduct toward a
member of the collective bargaining unit is arbitrary,
discriminatory, or in bad faith.” Id. at 373-74 (internal
quotation omitted). A collective bargaining agreement may be
negotiated to require the union to assume other responsibilities
towards the employees through some additional duty of care, as
2 Both parties address the necessity for an allegation that plaintiff’s employer violated the collective bargaining agreement but that is not the thrust of the Count I claim. Count I attempts to assert a claim against the defendant union based on its alleged violation of the Collective Bargaining Agreement.
14 plaintiff seems to allege in Count I , however such a duty would
be contractual and would need to be articulated expressly in the
agreement. See id. at 374 (explaining the limits on the duty of
fair representation). “If an employee claims that a union owes
him a more far-reaching duty, he must be able to point to
language in the collective-bargaining agreement specifically
indicating an intent to create obligations enforceable against
the union by the individual employees.” Id. at 374 (citation
omitted).
Plaintiff has not pointed to any such language, and I have
been unable to find any provision in the Collective Bargaining
Agreement that “relates to the representation of the plaintiff by
the defendant.” Am. Compl. ¶ 1 5 . There is nothing in the
agreement that could fairly be read to create a private right of
action by union members against the union. Defendant’s motion
for summary judgment on Count I is granted.
b. Count II
In Count I I , plaintiff asserts that defendant breached its
statutory duty, discussed supra, to fairly represent her in the
15 grievance proceedings which followed her termination.3 See Am.
Compl. ¶ 1 7 . Since defendant has no duty to represent plaintiff
in a meritless claim against her employer, for plaintiff to
succeed on Count II she must prove that her termination violated
the terms of the collective bargaining agreement4 and that
defendant’s representation of her was done either in bad faith or
in an arbitrary or discriminatory manner. See Teamsters v .
Terry, 494 U.S. 5 5 8 , 564 (1992) (explaining the union’s duty to
pursue an employee’s grievances against an employer); see also
Emmanuel v . Int’l Bhd. of Teamsters, 426 F.3d 416, 420 (1st Cir.
2005) (same). Plaintiff contends here that defendant’s
settlement of her grievance was done arbitrarily and in bad
3 “The duty [of fair representation] requires a union ‘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.’” Teamsters v . Terry, 494 U.S. 5 5 8 , 563 (1992)(quoting Vaca, 386 U.S. at 1 7 7 ) . 4 Defendant first argues it is entitled to judgment as a matter of law because plaintiff did not allege in her complaint that Centerplate violated the Collective Bargaining Agreement when it discharged her. Construing the record in the light most favorable to plaintiff, as I must do on defendant’s motion for summary judgment, plaintiff’s reference to her grievance brought against Centerplate can reasonably be understood to assert a claim that her discharge was in breach of the agreement. See Am. Compl. ¶ 8 . I decline, therefore, to grant summary judgment on this basis.
16 faith, in breach of its duty to fairly represent her.
I adopt plaintiff’s succinct statement of the applicable law
on this point:
A union acts arbitrarily or in bad faith “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 as to be irrational.” Emmanuel, supra at 420 (quoting Miller v . United States Postal Service, 985 F.2d 9, 11- 12 (1st Cir. 1993)). This standard accords the unions substantial deference and ample latitude to perform their representative functions. Id. In addition, a union’s mere negligence or erroneous judgment will not constitute a breach of duty of fair representation. Miller, supra at 1 2 . A union’s failure to take a grievance to arbitration is a breach only when it is truly arbitrary or irrational. Newbanks v . Central Gulf Lines, 64 F. Supp. 2d 1 , 5 (D. Mass. 1999).
In order to successfully defend against a motion for summary judgment on a duty of fair representation claim, the plaintiff must point the court to record evidence supporting any one or all of the elements, specifically that the union acted arbitrarily or in bad faith or in a discriminatory manner. Morales, supra at 1 6 , quoting [sic] Griffin v . Air Line Pilots Ass’n, Int’l, 32 F.3d 1079, 1083 (7th Cir. 1994).
Pl.’s Mem. in Opp. to Def.’s Mot. for Summ. J. (“Pl.’s Opp.
Mem.”) (document n o . 12) at 4 .
Plaintiff points to four alleged breaches of duty by
17 defendant which I consider in turn.
(i) Failure to Properly Investigate
The First Circuit has clearly articulated a requirement that
a union has a duty to investigate alleged grievances.
The duty of fair representation mandates that a union conduct at least a “minimal investigation” into an employee’s grievance. Garcia v . Zenith Elec. Corp., 58 F.3d 1171, 1176 (7th Cir. 1995). But under this standard, only an “egregious disregard for union members’ rights constitutes a breach of the union’s duty” to investigate. Caselli v . Douglas Aircraft Co., 752 F.2d 1480, 1483 (9th Cir. 1985).
Emmanuel, 426 F.3d at 420.
Defendant has established the following undisputed material
facts relating to its investigation:
• On January 9, 2007, within three days of plaintiff’s suspension, the union filed a grievance about the incident on p behalf. Document n o . 11-3, ¶ 1 7 .
On January 1 7 , 2007, defendant interviewed plaintiff and obtained her version of the facts surrounding the termination. Document n o . 11-3, ¶ 1 8 ; document n o . 11-25.
Also on January 1 7 , 2007, the union obtained the company’s side of the story. Document n o . 11-3, ¶ 1 9 ; document n o . 11-25.
On January 1 7 , 2007, the union requested copies of statements and other information that the company had relied upon in making its decision to terminate plaintiff. Document n o . 11-3, ¶ 2 0 .
18 On January 2 5 , 2007, the union received from the company and reviewed: • statements from a customer, three co- employees, and a manager; and • highlighted “Employment Policies” and “Standards of Conduct” the company stated that she violated by using foul language and gestures to a management employee and in front of customers; and a 1/6/05 “final warning” for harassment and misconduct which she had previously been given.
In July of 2007, the union representative left several unanswered voice messages for plaintiff seeking to arrange to meet with her on August 8th or 9th in New Hampshire to prepare her testimony for the scheduled September 20th arbitration. Document n o . 11-3, ¶ 2 7 .
On August 7th, the union representative traveled to New Hampshire and left more unanswered voice mails to plaintiff to arrange a meeting on the 8th. Document n o . 11-3, ¶ 2 8 .
Having continued the hearing to October, the union’s representative wrote plaintiff, warning her of non-cooperation, its right not to have to deal with her through her lawyer and that a failure to contact the union on or before August 31st would result in withdrawal of the grievance. Document n o . 11-3, ¶ 3 0 , document n o . 11-11.
Prior to an arranged September 20th meeting, the union told plaintiff that it wanted to prepare her and her witnesses for the arbitration hearing. Document n o . 11-3, ¶ 3 1 .
At the September 20th meeting, the plaintiff did not bring any witnesses nor arrange for the union representative to meet any. Document n o . 11-3, ¶ 3 2 .
19 Plaintiff was asked to identify her witnesses and provide any documents she thought relevant. Document n o . 11-3, ¶ 3 3 . She refused to do so at the meeting, but said she would within a week. Document n o . 11-4, ¶¶ 2 4 , 3 0 .
On October 3rd, the union sent plaintiff a letter reminding her that she had not identified her witnesses, had not provided relevant documents and told her that she must provide employment and interim compensation information as it was required to prove up her lost wages and to respond to the company’s document request. Document n o . 11-12.
On October 12th, plaintiff provided five names and her attorney faxed some documents, primarily of witnesses to the event and her past good work. Document n o . 11-4, ¶¶ 3 4 , 3 5 ; document n o . 11-21.
Prior to the hearing, plaintiff provided no information on interim earnings and the union obtained the company’s agreement to bifurcate lost earnings out of the initial stage of arbitration. Document n o . 11-4, ¶ 36-37.
Prior to the hearing on October 1 5 , 2007, the union attorney met with and prepared five witnesses plaintiff brought. Document n o . 11-4, ¶ 38.
When the union learned that the owner of the race track where plaintiff had worked for her employer would not allow plaintiff’s employer to bring her back, even if she was reinstated, the union began efforts to settle the case on the basis of her wage claim and again sought receipt of the information on interim wages by November 30th. Document n o . 11-4, ¶¶ 45-49.
The interim wage information was not supplied by plaintiff as requested. Document n o . 11-4, ¶ 5 1 .
20 In the face of the uncontradicted and overwhelming evidence of
this thorough investigation, plaintiff has not offered a single
fact or argument to establish a failure to properly investigate.
The union met its duty to investigate in a complete and
professional manner despite a shocking lack of cooperation by
plaintiff. Summary judgment on the investigation issue is
granted to defendant.
(ii) Failure to Prepare for Arbitration
Plaintiff’s complaint and objection to the motion for
summary judgment do not set out a single alleged fact or argument
to demonstrate a failure to prepare for arbitration. The record
is silent as to any failure to prepare, let alone one that rises
to the level of a breach of the duty of fair representation.
While the duty to prepare for arbitration is not as clearly
delineated as the duty to investigate, courts have recognized
such a duty inferentially. See U.S. Postal Serv. v . Lettis, 39
F. Supp. 2d 1 8 1 , 200-02 (E.D.N.Y. 1998) (explaining differences
in strategy and judgment do not constitute bad faith); Ghartey v .
S t . Queen’s Hosp., Local 1199, 869 F.2d 1 6 0 , 163 (2d Cir. 1989)
(discussing challenge to union’s representation in arbitration).
Investigation is a prime component of preparation. The
21 undisputed facts set forth above pertaining to defendant’s duty
to investigate clearly establish that the union obtained
appropriate and thorough discovery of Centerplate’s documents and
oral evidence, interviewed and prepared plaintiff and her
witnesses, and sought all of plaintiff’s relevant documents. The
flaws, if any, in preparation were solely due to plaintiff’s
uncooperative delays in producing witnesses and documents.
Defendant has provided substantial material evidence of
preparation for arbitration. Plaintiff has provided no evidence
of defendant’s failure to adequately prepare. Summary judgment
is granted to defendant on the issue of arbitration preparation.
See Lettis, 39 F. Supp. 2d at 202 (bald assertions uncorroborated
by any evidence cannot overcome summary judgment).
(iii) Failure to Communicate with Plaintiff
The frivolity of this claim is demonstrated by the total
absence of a single alleged failure to communicate by defendant.
As demonstrated by the facts outlined above, in the discussion of
the duty to investigate, defendant made numerous unanswered
telephone calls to plaintiff, sent letters to plaintiff and to
her attorney, met with plaintiff and talked with plaintiff. That
defendant did not withdraw the grievance based on plaintiff’s
22 flagrant lack of communication and cooperation is a testament to
the professionalism and dedication of the union.
Defendant has demonstrated by undisputed material facts that
it has more than met its communication duties in fairly
representing plaintiff. Whatever plaintiff’s counsel had in mind
in alleging a “failure to communicate”, he has certainly kept it
hidden. Nothing in the record remotely substantiates a claim
that defendant acted in bad faith or arbitrarily when it
attempted to communicate with plaintiff. “The district court is
free to disregard arguments that are not adequately developed.”
Higgins v . New Balance Athletic Shoe, Inc., 194 F.3d 2 5 2 , 260
(1st Cir. 1999). Summary judgment for defendant is also granted
on the alleged breach of defendant’s duty to communicate.
(iv) Failure to Pursue the Grievance and to Settle over Plaintiff’s Objection
Plaintiff’s final claim that defendant acted arbitrarily and
in bad faith in representing her against Centerplate focuses on
defendant’s decision to settle her claim rather than continue
with the arbitration. In particular, plaintiff asserts that
witnesses at the arbitration hearing supported her position about
what had happened on January 6, 2007, and that the union
representative at the hearing told her counsel that the hearing
23 was going well. See Pl.’s Opp. Mem. at 5 . Because plaintiff
perceived the arbitration was proceeding favorably, she did not
understand why defendant contacted Rockingham Park about her
returning to work there, or why defendant settled her grievance
before the issue of her reinstatement was arbitrated. See id. at
5-6. She now contends defendant’s decisions both to reach out to
Rockingham Park about the reinstatement issue and to settle her
grievance after learning Rockingham’s position demonstrate its
bad faith and arbitrary conduct in breach of its duty to fairly
represent her.
A union acts arbitrarily only i f , “at the time of [its]
actions, the union’s behavior is so far outside a wide range of
reasonableness as to be irrational.” Miller v . U.S. Postal
Serv., 985 F.2d 9, 11-12 (1st Cir. 1993) (citing Air Line Pilots
Ass’n v . O’Neill, 499 U.S. 6 5 , 78 (1991)). A reviewing court
must examine the competence of the union’s representation
objectively, but also must recognize the union’s need for
substantial deference and wide latitude in determining how to
represent its members. See Emmanuel, 426 F.3d at 420 (citing
authority). By contrast to the objective standard on which
arbitrariness is evaluated, the questions of whether a union
24 acted in bad faith or discriminatorily are reviewed based on a
subjective standard. See Crider v . Spectrulite Consortium, Inc.,
130 F.3d 1238, 1243 (7th Cir. 1997).
Although whether the Union’s conduct was discriminatory and whether it was in bad faith must be analyzed separately, the analyses are related. Whereas the arbitrariness analysis looks to the objective adequacy of the Union’s conduct, the discrimination and bad faith analyses look to the subjective motivation of the Union officials.
Id. (citing Trnka v . Local Union N o . 6 8 8 , UAW, 30 F.3d 6 0 , 63
(7th Cir. 1994)).
Plaintiff’s Objection does not clearly delineate the facts
and arguments related to alleged “arbitrariness” from those of
alleged “bad faith.” However, it appears that plaintiff relies
on the following facts to establish arbitrariness.
• Union counsel told plaintiff after the first day of arbitration that it was “going well.” Document n o . 12-23, ¶ 1 2 .
• Union counsel told plaintiff’s attorney that plaintiff had a “good shot” at reinstatement. Document n o . 12-11.5
• Plaintiff had more favorable witnesses to present at day two of the arbitration. Document n o . 12-
5 While many of plaintiff’s documents have not been authenticated and, therefore, justifiably could be disregarded, I have considered them as though they were authenticated since they do not alter the disposition of the pending motion.
25 23, ¶ 12.
Despite this promising start, defendant negotiated a settlement over plaintiff’s objection. Document n o . 12-17.
Defendant agreed to a provision releasing Rockingham Ventures without plaintiff’s consent. Document n o . 12-11.
Defendant did not give plaintiff’s attorney specific case citation to support the position that Rockingham Ventures, owner of the trac k, could bar plaintiff from the track even if were reinstated to employment with Centerplate. Document nos. 1 4 , 1 7 .
Pl.’s Opp. Mem. (document n o . 12) at 5-7.
To support her claim of bad faith, plaintiff relies on the
following allegation:
• “Prior to the arbitration, the defendant expressed hostility to the plaintiff for engaging a private attorney to assist her. (Document n o . 12-6).” Document n o . 12 at 5 , 7 .
• Defendant unilaterally agreed to a settlement. Document n o . 12 at 7 .
• Defendant did not provide legal authorities to plaintiff’s counsel on Rockingham’s authority to bar her or why Rockingham should be released. Document n o . 12 at 6.
• The settlement was without consent. Document n o . 12 at 7 .
Nothing in these allegations intimates, let alone
demonstrates, some irrationality or ill-motive on defendant’s
26 part to support plaintiff’s claims of arbitrariness and bad
faith. The paucity of evidence, case support and convincing
argument by plaintiff is starkly revealed in the face of the
facts and arguments of defendant. Unions are allowed “great
latitude in determining the merits of an employee’s grievance and
the level of effort it will expend to pursue it.” Miller, 985
F.2d at 1 2 . The undisputed facts of this case establish that
defendant’s representation was thorough, professional, thoughtful
and free from arbitrariness and bad faith.
Plaintiff had a disciplinary history of use of obscene
gestures, verbal abuse and altercations with managers in front of
patrons. See Document nos. 11-3, ¶ 1 2 ; 11-66 to 11-76; 11-81.
She had previously been banned from Rockingham’s property. See
Document n o . 11-3. She also previously had been given a written
termination warning. See Document n o . 11-57. The incident
precipitating the termination involved an admitted altercation
with a manager in front of patrons. See Document n o . 11-4, ¶ 8 .
She disputed using foul language, see id., but some witnesses
said she both used the “F” word and made an obscene gesture. See
Document n o . 11-26. While a less dedicated union might well have
avoided this uphill battle, defendant proceeded with a grievance
27 seeking reinstatement.
The union filed a grievance on plaintiff’s behalf and
pursued it to arbitration. Plaintiff claims that defendant’s
letter of August 2 4 , 2007, see Document n o . 12-6, demonstrates
hostility because the union declined to deal with her attorney,
not her. The letter, however, is not hostile but simply states a
position totally consistent with the law of labor relations,
which gives the union broad discretion in fairly representing its
members. Neither plaintiff nor her attorney had any right to
“run the show.” “An important part of a union’s broad discretion
in handling an employee’s grievance is the right to limit the
role of a grievant’s private attorney. . . . A union has the
right to be the sole representative of its members, and it can
refuse to include private counsel in its handling of a grievance
if it so chooses.” Shufford v . Truck Drivers, Helpers, Taxicab
Drivers, 954 F. Supp. 1080, 1091-92 (D. Md. 1996) (citing Garcia
v . Zenith Elec. Corp, 58 F.3d 1171, 1179 (7th Cir. 1995) (citing
additional cases)).
The record here demonstrates that defendant reasonably and
rationally exercised its discretion in dealing with plaintiff and
her private counsel. Certainly having its telephone calls
28 ignored when trying to set up a meeting justifies making it clear
to plaintiff that the union gets to run the show under the law.
In addition, defendant did deal with plaintiff’s attorney. It
sought documents and information from him, kept him advised,
discussed the settlement with him and sought input from him about
i t , and tried to accommodate his concerns. Plaintiff’s hostility
argument on this basis is frivolous.
As I found supra, defendant thoroughly investigated
plaintiff’s grievance and prepared for the arbitration
proceedings. The evidence shows that defendant appropriately
handled the arbitration proceedings and reasonably determined it
was best to settle plaintiff’s claims rather than continue to
arbitrate them. The following facts substantiate this
conclusion.
Prior to that arbitration, on September 20th, plaintiff told
defendant’s attorney that she had reason to believe that
Rockingham Ventures would not let her return to the property.
See Document 11-3, ¶ 3 4 . After the first day of arbitration on
October 1 7 , defendant’s attorney discussed with Centerplate’s
attorney the company’s interest in settling the grievance.
See Document n o . 11-4, ¶ 4 2 . After some initial hostility,
29 plaintiff agreed to consider proposing a settlement demand which
would waive her right to reinstatement, promised to discuss it
with her attorney, and agreed to send documents necessary to
compute lost wages. See Document n o . 11-4, ¶ 4 4 . On November
1 9 , Centerplate’s lawyer advised that Rockingham Ventures had
barred plaintiff from the track, so she could not return even if
she were awarded reinstatement. See Document n o . 11-4, ¶ 4 5 .
The union representative confirmed this on November 21st by a
direct telephone conversation with Edward Callahan, president and
general manager of Rockingham Park. See Document n o . 11-3, ¶ 4 0 .
Defendant had good reason to conclude that any reinstatement
award under these circumstances would not get plaintiff’s job
back. See Document n o . 11-3, ¶ 4 1 . The arbitrator had no
authority to order Rockingham to do anything. See Document no
11-4, ¶ 4 6 . Arbitration case law provides ample support for the
conclusion that in these circumstances, where reinstatement is
not an option, an award of back-pay is the proper remedy. See
Def.’s Reply Mem. (document n o . 14) at 7 (citing Burns Int’l
Security Serv., 98 LA 226 (Cox, Arb. 1991) (client’s refusal to
grant security clearance to guard made reinstatement to client’s
facility impossible); First Student Inc., 121 LA 575 (McCurdy,
30 Arb. 2005) (no remedy available for bus driver who was banned
from route by school district); Southern Ocean Transport, 124 LA
464 (Wolfson. Arb. 2007) (no remedy for truck driver improperly
banned from client’s property); Wackenhut Corp., 121 LA 1623
(Landau, Arb. 2006) (appropriate remedy for wrongful discharge of
employees who are banned from property is back-pay)) 6 .
Defendant tried to report the information on a ban and to
discuss the benefits of settlement and risks of going forward,
but plaintiff got loud and verbally abusive. See Document n o .
11-4, ¶ 47-48. Defendant advised her by letter that it would
deal with her attorney on settlement issues. Id., ¶ 4 8 . Despite
repeated requests for interim wage information, defendant was
forced to estimate the interim wage discount and lost earnings
because of plaintiff’s failure to provide the information. See
Document n o . 11-4, ¶ 49-51. Its estimate is remarkably accurate,
as a subtraction of plaintiff’s 2007 income of $10,224, based on
interim earnings and unemployment compensation (document n o . 11-
9 1 ) , from her 2006 earnings of $19,437 (document n o . 11-90)
reflects a net loss of $9,213, and the union estimated a loss of
6 Copies of these decisions were appended to Def.’s Reply and may be found online at The Bureau of National Affairs, Inc., Labor and Employment Law Library, Labor Arbitration Decisions, www.bna.com/corp/index.
31 $11,000 (document n o . 11-4, ¶ 5 1 ) . After much back and forth,
the union and company arrived at a settlement amount of $10,000,
tax and employment security advantageously allocated at one-third
back wages and two-thirds non-wage.
The settlement was rejected by plaintiff on December 1 7 ,
2007. See Document n o . 11-4, ¶ 5 8 . On January 2 4 , 2008, the
union sent plaintiff’s counsel a thorough review, analysis and
rationale for its conclusion that the settlement was in the best
interest of plaintiff. See Document n o . 12-12. Whether or not
plaintiff or her attorney agree with the analysis or conclusion
is beside the point. The letter clearly shows a sound and fair
analysis and it belies any suggestion that the union acted
arbitrarily or in bad faith. In fact, the union achieved a
settlement in excess of the amount plaintiff could have obtained
in any award for back pay.
Plaintiff makes much of Centerplate’s requirement that
Rockingham be released from any and all claims against it she
might assert. However, the absence of any hint by plaintiff’s
counsel that she had any viable cause of action against
Rockingham demonstrates that she was not giving up anything but
the opportunity for a frivolous suit.
32 In summary, Rockingham’s position cut the legs from under
any worthwhile reinstatement order in arbitration. Defendant
negotiated a very favorable cash settlement, particularly given
the facts of the discharge and plaintiff’s failure to provide
repeatedly requested wage information. Defendant never acted in
a hostile manner despite repeated provocation by plaintiff.
Defendant’s settlement rationale was well supported and
considered.
Finally, a union does not need to obtain plaintiff’s consent
before settling a grievance. See Sanderson v . Ford Motor Co.,
483 F.2d 1 0 2 , 114 (5th Cir. 1973); Caputo v . National Ass’n of
Letter Carriers, 730 F.Supp. 1221, 1230 (E.D.N.Y. 1990); Lettis
v . U.S. Postal Service, 29 F.Supp. 2d 1 8 1 , 197 (E.D.N.Y. 1998).
There is no genuine issue of material fact as to whether the
union’s actions were “so far outside a wide range of
reasonableness as to be irrational.” Airline Pilots Ass’n Int’l,
499 U.S. at 6 7 . Defendant is entitled to summary judgment that
it did not breach any duty when it decided to settle plaintiff’s
claims rather than continue with arbitration. Defendant very
ably fulfilled its duty to fairly represent plaintiff in her
grievance proceedings.
33 Conclusion
Defendant’s motion for summary judgment (document n o . 11) is
granted. The clerk is ordered to enter judgment for the
defendant and close the case.
SO ORDERED.
James R. Muirhead United States Magistrate Judge
Date: September 2 4 , 2009
cc: Scott F. Gleason, Esq. Paul McEachern, Esq.