Opinion
Case Number 04-10034-BC.
March 29, 2005
OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
The plaintiff, Darrell Lamont Sims, was a member of United Auto Workers Local 455 (UAW) when defendant Minsor Powertrain Systems fired him for excessive tardiness and absenteeism on July 28, 2003. He filed this "hybrid" action under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (LMRA), alleging that his employer breached the collective bargaining agreement when it fired him, and his union breached its duty of fair representation when it did not file a grievance protesting the action. Both Minsor and the UAW have filed motions for summary judgment. The Court heard arguments from the parties through their respective counsel on February 28, 2005, and now finds that the plaintiff has not come forward with evidence establishing a genuine fact issue that his Union engaged in arbitrary, discriminatory, or bad faith conduct in its representation of him. The Court, therefore, will grant the defendants' motions and dismiss the case.
I.
Darrel Lamont Sims worked for defendant Minsor Powertrain Systems as a forklift operator from October 1999 until his termination on July 28, 2003. As an employee of Minsor, the plaintiff was a member of defendant UAW Union Local 455 and his employment was governed by a collective bargaining agreement (CBA). One feature of the CBA was a provision that regulated attendance by means of a "no fault," "incident" or "point system." That system established a "bank" of points for each employee at the beginning of the year; points would be withdrawn according to a schedule for each absent or tardy incident. Points could be added for a month of perfect attendance, and when an employee's bank reached eight points, additional points would accumulate in a bonus pool that eventually led to pay awards. The reduction of the point bank to four points triggered a regimen of progressive discipline that began with a written warning, followed by a shift suspension, then a five-day suspension when the bank dropped to two points, and finally discharge at one point. The CBA contains the following schedule: INCIDENT BANK BONUS POOL
8.0 PAY OUT AT 2.0 POINTS 7.5 7.0 6.5 6.0 5.5 5.0 4.5 4.0 1st STEP DISCIPLINE — Written Warning 3.5 3.0 2nd STEP DISCIPLINE — 2nd Written Warning Balance of Shift Disciplinary Suspension 2.5 2.0 3rd STEP DISCIPLINE — 5 days Disciplinary Suspension 1.5 1.0 LAST STEP DISCIPLINE — Discharge.Minsor Mot. Summ. J. Ex. 2, CBA at 81-82. The plaintiff in this case was fired when he exhausted his incident bank, but the incidents that caused the reduction of his points came in such rapid succession that he did not progress through all the steps of discipline.
Each employee at Minsor started the year with eight points in his attendance bank. The CBA provided that points would be withdrawn from the bank for an attendance "incident." An "incident" was defined as "any continuous period of absence between scheduled shifts or reporting to work after scheduled starting time." Minsor Mot. Summ. J. Ex. 2, CBA at 77. An incident could result in the withdrawal of a full point or a half point. A "full incident withdrawal" occurred when the employee was "[a]bsent with no prior notification and/or medical/legal documentation showing that the Employee was unable to work as a result of the incident," or was "[t]ardy more than two hours with no prior notification and/or medical/legal documentation showing that the associate was unable to attend work on time." Id. at 78. A "one-half incident withdrawal" was an absence "with prior notification and/or medical/legal documentation showing that the Employee was unable to work as a result of the incident," or when the employee was "[t]ardy less than two hours or more than two hours with call in and submission of documentation." Ibid. In addition, "[r]eturning from lunch late [was] treated as tardiness and result[ed] in a one-half point loss." Ibid.
The CBA also prescribed breaks and lunch periods. It stated:
Breaks, lunch periods and Wash-up times will be established for each department or operation consistent with the hours of work and the relief system utilized to maintain operations. Production operations shall have a paid break of fifteen (15) minutes before the thirty (30) minute unpaid lunch period and a paid break of fifteen (15) minutes after the lunch period. A wash up allowance of five (5) minutes before the lunch period will be continued.Id. at 34.
Employee attendance was monitored by Pat Cimino, the manager of Minsor's human resource department. She used a computer system to track employees' attendance and their respective points. She explained that a "punch detail that is printed from our E time which is our clock, punching in and out, is every week and I receive a copy of that." Minsor Mot. Summ. J. Ex. 3., Cimino dep. at 22-23. Cimino was then responsible for implementing the attendance policy and keeping supervisors informed of their employees' balances.
Minsor retained the right under the CBA "to discipline and discharge employees for just cause, provided that in the exercise of these rights it will not act wrongfully or unjustly or in violation of the terms of the Agreement." Id. at 15. An employee who was aggrieved by a disciplinary action could protest by following an established procedure that began with a discussion with a supervisor and, at the employee's option, a Union committee person. If the dispute was not resolved, it was reduced to writing, signed by the employee, and filed with the supervisor. A company representative would then respond, and if there was no resolution, the committee person was to submit the grievance to the shop committee within four workdays of the company's answer to the first written grievance. This procedure had two final steps and, if the dispute remained unresolved, culminated in arbitration.
The plaintiff had a history of problems during his employment tenure with Minsor. In 2000, the plaintiff was terminated — although the parties do not explain why — and he later was given "another chance." Minsor Mot. Summ. J. Ex. 1, Cimino aff. at ¶ 4. The plaintiff again was terminated in August 2002, two weeks before his wedding, allegedly as a result of taking time off to care for his sick father. UAW Mot. Summ J. Ex 1, Sims' dep. at 13-14. The plaintiff testified at his deposition that Minsor ultimately rehired him on September 15, 2002; he had asked UAW to file a grievance against the company for violating the Family and Medical Leave Act before his termination but the union, the plaintiff claims, never followed up on his request.
On July 28, 2003, the plaintiff was terminated for the last time for violating the attendance policy described in the CBA; the plaintiff used up all eight points in his incident bank. According to Minsor's records, the plaintiff accumulated four full incident withdrawals when he was absent without a note on February 19, March 8, July 29, 2002, and February 19, 2003. In addition, the plaintiff had one-half incident withdrawals when he was absent but presented documentation of his absences on August 13, 2002, between September 23 and September 30, 2002, and July 24, 25, and 26, 2003. Finally, the plaintiff left work early, started work late, or returned to his shift late on August 5, November 9, December 10, 2003, and on February 3, March 13, April 15, twice on May 28, and July 15, 16, and 21, 2003. Half-point withdrawals occurred on these last three dates because the plaintiff returned late from lunch breaks. He says that he would have been on time if the five-minute wash-up period was added to his allotted lunch time, but the company and the union view the CBA as permitting wash-up on company time, that is, before the employee punches out for lunch or after he punches in afterward. Minsor, therefore, would not let the plaintiff add the wash-up time to his break to avoid the tardy deductions on July 15, 16 or 21.
The plaintiff's incident point deductions were offset by points the plaintiff had earned. No attendance infractions were noted for the months of October, November, and December 2002 and January and June of 2003. The plaintiff also retained 1.5 points in his bonus bank presumably from good attendance the previous year. Despite the added points, by the end of July 2003 the balance in the plaintiff's incident bank was zero. Pursuant to company policy, Cimino completed a disciplinary action form and concluded that the plaintiff had committed a "step five attendance violation." Minsor Mot. Summ. J. Ex 4, Disciplinary Action Form (stating that "Zero attendance points = Termination"). The form recited July 28, 2003 as the date and time of termination. That day, Cimino convened a meeting with union committee person Derek Akins, the plaintiff, and the plaintiff's supervisor, and she informed the plaintiff that his employment was being terminated.
The plaintiff was terminated without first being suspended. As the union understood it, the plaintiff accumulated infractions in a short period of time and it was not possible to first suspend him according to the progressive disciplinary regimen outlined in the CBA. Akins testified at his deposition:
Q. Would you agree looking at this [print out] that between three point oh and, well, zero, I guess, there is at least one step in between, disciplinary step that falls in between those actions? You may have to look over at the second page.
A. Yeah.
Q. Would you agree that, to your knowledge, my client was never given a five-day disciplinary suspension?
A. Yeah.
Q. To your knowledge, I should say?
A. To my knowledge, no.
Q. So, in other words, the company bypassed at least one disciplinary step before they discharged my client, would it appear?
A. If the disciplinary action didn't come before they do the attendance policy. See, like when they do the attendance policy — actually with Darrell, I checked that with Darrell, when he pointed out and he went to 3. Darrell was terminated the same time as three.
Q. Same time as 3, what do yo mean by that?
A. At three points. The days that he missed, the day of the 7/28 that we did his viewing, Darrell Sims was at termination. So if he had four points, he would have had that knowledge of that step that you're referring to.
Q. At the time of his discharge?
A. Darrell didn't have no points at that time.
Q. Okay.
A. So it wasn't no disciplinary step, wasn't able to exercise no disciplinary step because he had zeroed out.Id. at 25-26. Akins also noted that it was possible to skip disciplinary steps because of the attendance sheet tabulation: "[t]hey do them at the end of the month." Id. at 29. Further, the points are not tallied "every time you drop half a point." Ibid. In short, the attendance policy is generally applied to each employee once a month. Cimino also acknowledged that the plaintiff was given no notice that his attendance was problematic prior to his termination. Id. at 19. She explained that the plaintiff was not first given a suspension because of timing: "[i]t has to do with when the attendance policy, when the attendance points came, were delivered to the supervisor, that between the lates and the absences it was very quick when they happened and there was not time for a suspension at that time." Id. at 24.
The plaintiff testified that he felt he understood the CBA and its policies on attendance well. In fact, the plaintiff served as a union representative responsible for administering the CBA for a period of time. He also recalled that he had a copy of the UAW constitution and the CBA and that he had read the CBA "cover to cover." Minsor Mot. Summ. J. Ex. 5, Sims dep. at 63. Nonetheless, he believed his termination was unfair. In his deposition, the plaintiff stated:
the fact that you can lose a point if you let's say — I got carjacked in May, guys took my truck, I lost a point for that. I don't feel like I should have lost a point because I got carjacked. Because it's beyond . . . if it's beyond me, I don't think if I get carjacked you should take a point or if I'm sick you going to take a point. I don't think that's right. And I didn't agree with that part of the contract. I don't think we should lose points if you [sic] sick, if you can't work.Id. at 49-50. The plaintiff also argued that it was customary to take thirty-five-minute lunch breaks before Cimino started monitoring attendance.
On July 29, 2003, the plaintiff approached Akins to say that he wished the union to pursue a grievance on his behalf. Minsor Mot. Summ. J. Ex. 6, Akins dep. at 17. Akins testified that he was familiar with the plaintiff's termination; he had attended the meeting on July 28, 2003 with the plaintiff's supervisor and Cimino. Id. at 14. At the meeting, Akins was shown a copy of the plaintiff's attendance records, and Akin's noted that the plaintiff had "pointed out." Ibid. Akins further stated that as union chairperson he immediately began an investigation: "I have to investigate as far as getting a printout of what days he actually missed, you know, because sometime [sic] it don't show." Id. at 15. Before his meeting with the plaintiff, Akins called a meeting of bargaining unit shop committee to determine whether there was a basis to challenge the termination. Id. at 34. The committee members concluded that the plaintiff's termination was proper and no contractual violation had occurred. Id. at 34-38. Consequently, by the time Akins spoke to the plaintiff, Akins had concluded his investigation and told the plaintiff that there was nothing to grieve:
Q. Okay. And what was your response, if anything, to his request?
A. It was that I explained, during my investigation, that he'd exhausted all his points.
Q. All right. So you told him that he exhausted all his points, in your opinion. Did you provide him any further statement regarding his grievance, other than the fact he had exhausted all of his points, in your opinion? Did you say, yes, we're going to grieve it; or no we're not going to grieve it?
A. We went over the points system, him and I. I also gave him a copy of his point system —
Q. All right.
A. — and showed him where he had exhausted his point system. And therefore wasn't nothing contractual for me to substantiate a grievance. I mean, he didn't, he didn't have any points.
Q. So you did tell my client, "No, I'm not going to grieve it" or just say, "I don't see any evidence to support your claim"?
A. Correct, that is what I said.
Id. at 17-18. During their conversation about a possible grievance, the plaintiff expressed concern to Akins over the application of the five-minute wash rule in his case. Id. at 19. At his deposition, Akins clarified his understanding of the wash-up rule:
Q. All right Now have you ever heard of a wash-up period?
A. Yes.
Q. All right. And, in fact, is that an additional five minutes that is afforded people that work eight hours?
A. No. It is not an addition. It is just you have five minutes before you 30-minute lunch period to wash up.
Q. So, in other words it gives you an additional five minutes to get off your job clean up and then go to lunch?
A. Thirty minutes after five minutes.
Q. Yeah, 30 minutes after the five minutes?
A. Yeah.
Q. So you add 30 and 5, it's 35 minutes, correct?
A. Not putting it that way. That way you're giving the person 35 minutes. The five minutes is on company time. You still punched in.Id. at 19-20.
The plaintiff testified that he knew that the grievance procedure in the CBA required grievances to be submitted within five days after an incident. However, the plaintiff testified at his deposition that he first became aware that the union would not file a grievance on his behalf in approximately January 2004. He said the delay did not concern him because he was aware of other employees who were fired and brought back several months later. The defendants dispute the truth of this testimony in light of allegations the plaintiff made in a charge he filed against the union with the National Labor Relations Board on October 3, 2004. In his charge, the plaintiff stated "[s]ince on or about July 16, 2003, the above-named labor organization has failed to represent me by not filing and/or processing grievances for arbitrary reasons." UAW Mot. Summ. J. Ex. 1, Charge Against Labor Organization Or Its Agents. On November 19, 2003, NLRB Region 7 issued its decision denying the plaintiff's charge, stating:
Darrell Sims filed these charges on October 3, 2003. Sims alleges that the Employer on or about July 16 suspended and subsequently discharged him because of his union activities. Sims also alleges that the Union failed to represent him by failing to file a grievance regarding his discharge for arbitrary reasons.
. . .
About July 28, Sims was discharged assertedly for violating the Employer's no-fault attendance policy. Sims asserts that he asked the Union to file a grievance over his discharge, but the Union denies this assertion. The Union asserts it investigated Sims' discharge and found the Employer's point calculation under the no-fault policy to be correct.
. . .
Accordingly, I am refusing to issue complaint and the charges are dismissed. UAW Mot. Summ. J. Ex. 1, National Labor Relations Board Decision.
The plaintiff acknowledges that before January 2004, he called Gerald Kareem, International Union, UAW regional servicing representative. Kareem recalled that "the conversation was about whether or not a lunch period was 35 minutes or 30 minutes." UAW Mot. Summ. J. Ex 6, Kareem dep. at 11. Kareem testified that it was his understanding that the five minute wash-up period was separate from the thirty minute lunch break. Ibid. He also told the plaintiff that he could not help him because "if [the decision not to grieve is] not appealed to my step, I'm technically not involved." Id. at 15. After speaking with the plaintiff, Kareem stated that he spoke with Akins, and Akins told Kareem "he could not find any contractual violation and that he had turned it upside down or something like that." Id. at 17.
According to Minsor, terminating employees for maintaining a zero balance or "pointing out" is fairly common practice. In her affidavit, Cimino stated that Minsor had terminated 11 employees in 2003 for failing to conform to the attendance policy. Minsor Mot. Summ. J. Ex. 1, Cimino aff. at ¶ 5. In addition, Cimino noted that the union had not brought grievances on behalf of any of these employees. Ibid. She did, however, recall that in some instances she made the decision not to terminate an employee even though that employee had a zero balance. She testified:
Q. Okay. Are you aware of any instances where an employee had 0 attendance points but was not terminated?
A. There are probably some, yes.
Q. Do you recall any of them by name?
A. Not that I can recall right now.
Q. In what circumstance would an employee with zero attendance points not be terminated?
A: It would depend on the employee coming in and talking to me and requesting not to be terminated, explaining their attendance issues, what type of work record they had with the company.
UAW Mot. Summ. J. Ex. 5, Cimino dep. at 21. Cimino was not aware of any terminations that had occurred as a direct result of tardily returning from lunch. Id. at 10.
On February 13, 2004, the plaintiff filed the present two-count complaint alleging that Minsor breached the collective bargaining agreement and UAW Local 455 breached its duty of representation pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. On March 15, 2004, the plaintiff filed an amended complaint stating the same two counts, but adding additional facts. Thereafter, both defendants filed separate motions for summary judgment to which the plaintiff responded.
II.
A motion for summary judgment under Federal Rule of Civil Procedure 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal quotes omitted).
A fact is "material" if its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001). "Materiality" is determined by the substantive law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is "genuine" if a "reasonable jury could return a verdict for the nonmoving party." Henson v. Nat'l Aeronautics Space Admin., 14 F.3d 1143, 1148 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 248). Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St. Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party there is no genuine issue for trial." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Thus a factual dispute which "is merely colorable or is not significantly probative" will not defeat a motion for summary judgment which is properly supported. Kraft v. United States, 991 F.2d 292, 296 (6th Cir. 1993); see also Int'l Union, United Auto., Aerospace Agric. Implement Workers of Am. v. BVR Liquidating, Inc., 190 F.3d 768, 772 (6th Cir. 1999).
The party bringing the summary judgment motion has the initial burden of informing the district court of the basis for its motion and identifying portions of the record which demonstrate the absence of a genuine dispute over material facts. Mt. Lebanon Pers. Care Home, Inc. v. Hoover Univ., Inc., 276 F.3d 845, 848 (6th Cir. 2002). When the moving party has the burden of proof on an issue, whether it be a claim or affirmative defense, its "showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (citation omitted). That said, there is "no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Celotex, 477 U.S. at 323.
The party who bears the burden of proof on an issue must present a jury question as to each element of the claim. Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000). Failure to prove an essential element of a claim renders all other facts immaterial for summary judgment purposes. Elvis Presley Enters., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895 (6th Cir. 1991).
The CBA in this case relegates all employer-employee disputes to the grievance process as the employee's exclusive remedy against the employer. As noted above, the process begins with informal discussions and concludes with arbitration. An employee has no right to sue his employer directly if the bargained-for process has been followed faithfully. Thus, in order to recover in a hybrid suit under Section 301 of the LMRA the plaintiff must show that Minsor breached the CBA and the Union breached its duty of fair representation. Bagsby v. Lewis Bros., Inc., 820 F.2d 799, 801 (6th Cir. 1987); see Chauffeurs, Teamsters Helpers, Local No. 391 v. Terry, 494 U.S. 558 (1990); DelCostello, 462 U.S. at 163-65; White v. Anchor Motor Freight, Inc., 899 F.2d 555 (6th Cir. 1990). "Unless the employees `demonstrate both violations, [they] cannot succeed against either party.'" Higgins v. International Union, Security, Police, Fire Professionals of America (SPFPA), 398 F.3d 384, 387 (6th Cir. 2005) (quoting Bagsby, 820 F.2d at 801); see also Black v. Ryder/P.I.E. Nationwide, Inc., 930 F.2d 505, 510 (6th Cir. 1991) (stating that "[i]n any event, when the union cannot be held liable for unfair representation, of course, the employer cannot be held liable for breach of the collective bargaining agreement").
"The `interdependency' of a union employee's claims against his employer for breach of a collective bargaining agreement and against his union for breach of its duty of fair representation is well-established in this Circuit." Millner v. DTE Energy Co., 285 F.Supp. 2d 950, 960-61 (E.D. Mich. 2003). See, e.g., White v. Anchor Motor Freight, Inc., 899 F.2d 555, 559 (6th Cir. 1990) (observing that "if the first claim anchored in the employer's alleged breach of the collective bargaining agreement fails, then the breach of duty of fair representation claim against the union must necessarily fail with it"); Lucas v. Leaseway Multi Transportation Service, Inc., 738 F. Supp. 214, 220 (E.D. Mich. 1990), aff'd, 929 F.2d 701 (6th Cir. 1991) (noting that "[s]ince plaintiff's count as to the duty of fair representation fails, plaintiff's other count alleging a breach of the CBA also must fail").
In this case, both the union and the employer argue that they are entitled to summary judgment on the plaintiff's claims against each of them.
A.
Minsor contends that it followed the CBA by discharging the plaintiff for cause when he "pointed out" under the no-fault attendance policy. The plaintiff counters that Minsor breached the CBA by discharging him without following all of the steps of progressive discipline; specifically, the plaintiff complains that he was not suspended for five days before being fired. He also contends that he was improperly terminated as a result of taking 35 minute lunch breaks because the CBA is silent as to whether the five minute wash up period is paid or unpaid, and therefore he should not have lost points for after-lunch tardiness on July 15, 16, and 21, 2003.
The Sixth Circuit has set forth the principles for interpreting a collective bargaining agreement as follows:
Many of the basic principles of contractual interpretation are fully appropriate for discerning the parties' intent in collective bargaining agreements. For example, the court should first look to the explicit language of the collective bargaining agreement for clear manifestations of intent. Kellogg Co., supra, 457 F.2d at 524. The intended meaning of even the most explicit language can, of course, only be understood in light of the context which gave rise to its inclusion. See Randall v. Lodge No. 1076, International Ass'n of Machinists and Aerospace Workers, AFL-CIO, 648 F.2d 462 (7th Cir. 1981); Forrest Industries, Inc. v. Local Union No. 3-436, International Woodworkers of America, AFL-CIO, 381 F.2d 144, 146 (9th Cir. 1967); United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 570 (1960) (Brennan, J., concurring). The court should also interpret each provision in question as part of the integrated whole. If possible, each provision should be construed consistently with the entire document and the relative positions and purposes of the parties. Kellogg Co., supra, 457 F.2d at 524. See Randall, supra, 648 F.2d at 466; Florida Canada Corp. v. Union Carbide Carbon Corp., 280 F.2d 193 (6th Cir. 1960). As in all contracts, the collective bargaining agreement's terms must be construed so as to render none nugatory and avoid illusory promises. See Cordovan Associates, Inc. v. Dayton Rubber Company, 290 F.2d 858, 861 (6th Cir. 1961). Where ambiguities exist, the court may look to other words and phrases in the collective bargaining agreement for guidance. Variations in language used in other durational provisions of the agreement may, for example, provide inferences of intent useful in clarifying a provision whose intended duration is ambiguous. See American Pad, supra, 372 F.2d at 427-28; Kellogg Co., supra, 457 F.2d at 524. Finally, the court should review the interpretation ultimately derived from its examination of the language, context and other indicia of intent for consistency with federal labor policy. This is not to say that the collective bargaining agreement should be construed to affirmatively promote any particular policy but rather that the interpretation rendered not denigrate or contradict basic principles of federal labor law.International Union, United Auto., Aerospace, and Agr. Implement, 716 F.2d 1476, 1479-80 (6th Cir. 1984).
Minsor asserts that it could not have suspended the plaintiff because his point total did not reach two until the July, 2003 incidents, and then the point losses occurred in rapid succession. It also argues that the five-minute wash-up period was universally understood as coming before lunch and to be a paid break. These arguments, however, are unconvincing at the summary judgment stage of the litigation.
Minsor's records contain the following schedule outlining the plaintiff's incident account:
Month Absent w/note, call in Absent w/o note Late/Early Total Balance Bonus Jan. No attendance infractions 8.0 1.5 Feb. 19 -1 7.0 1.5 Mar. 8 -1 6.0 1.5 Apr. 4/10/02-4/21/02 STD 6.0 1.5 May 05/17/02-7/21/02 FMLA 6.0 1.5 Jun. 6.0 1.5 Jul. 29 -1 5.0 1.5 Aug. 13 5 app -.05 4.5 1.5 Sept. 23-30 -.05 4.0 1.5 Oct. No attendance infractions .05 4.5 1.5 Nov. No attendance infractions 9 app. .05 5.0 1.5 Dec. No attendance infractions 10 app. .05 5.5 1.5 Jan. No attendance infractions .05 6.0 1.5 2003 Feb. 19 3, -1.5 4.5 1.5 Mar. 13, -.05 4.0 1.5 Apr. 15, -.05 3.5 1.5 May. 28, — 1 2.5 1.5 Jun. No attendance infractions 0.5 3.0 1.5 Jul. 24, 25, 26 15, 16, 21 -3.0 0.0 lunc [sic] Minsor Mot. Summ. J. Ex 5, Attendance Point Totals.Minsor has not identified any portion of the CBA that liberates it from the progressive discipline provisions, nor does it point to any affirmative evidence suggesting why it was not bound to follow the four-step disciplinary process. It appears from the schedule reproduced above that the plaintiff at least could have been notified — although not suspended — three times that his attendance was problematic even before July 2003 when he incurred a three-point deduction bringing his balance to zero. Perhaps custom or practice might establish a right by Minsor to dispense with the progressive discipline requirements. However, without additional evidence on the point, Minsor's failure to warn the plaintiff in accordance with the CBA renders the promises therein both "nugatory" and "illusory." Id. at 1480.
Moreover, the provisions of the CBA concerning the five-minute wash-up period are ambiguous. Whether the plaintiff could wash up for five minutes after punching out for lunch, thereby extending his thirty-minute lunch break to thirty-five minutes, is a question of fact that remains on the present record. Finally, the schedule of the plaintiff's incident account itself creates a fact question. According to that summary, the plaintiff had three points in his bank at the beginning of July 2003. Full points were withdrawn for the lunch tardiness incidents for each of the three days that month. However, the CBA states that "[r]eturning from lunch late will be treated as tardiness and result in a one-half point loss." Minsor Mot. Summ. J. Ex. 2, CBA at 77. Similarly, on May 28, 2003 the plaintiff was docked "1.0" point for being late or leaving early from work. According to the attendance policy, however, leaving late is subject to a ".5" point reduction. It is unclear, therefore, whether the schedule contains an arithmetic error, the plaintiff was late on two occasions that day or late once and left early, or a combination of those possibilities. These ambiguities preclude summary judgment on the plaintiff's claim against Minsor for breach of the CBA.
B.
The plaintiff does not fair so well on his claim against his union. The UAW asserts that its judgment not to pursue a grievance in Sims' case was sound and informed by a thorough investigation, and therefore it did not breach its duty of fair representation of the plaintiff. It asserts that Akins' decision not to write a grievance was motivated by nothing other than his good-faith belief that no contractual violation had occurred. The plaintiff argues that the union breached its duty because Gerald Kareem lied about promises he made to follow up on his case and contacting the local chairperson about his case, and he was otherwise led astray by the union's representations.
In Vaca v. Sipes, 386 U.S. 171, 190 (1967), the Supreme Court stated that "[a] breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining agreement is arbitrary, discriminatory or in bad faith." "Each of these wrongs is mutually independent, meaning, that `the three named factors are three separate and distinct possible routes by which a union may be found to have breached its duty.'" Garrison v. Cassens Transport Co., 334 F.3d 528 (6th Cir. 2003) (quoting Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 584 (6th Cir. 1994)).
A union's conduct is "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' as to be irrational." Air Line Pilots Association, International v. O'Neill, 499 U.S. 65, 67 (1991) (citation omitted). Thus, conduct that might amount to negligence or poor judgment will not violate the prohibition against arbitrary conduct. See United Steelworkers of Am. v. Rawson, 495 U.S. 362, 372-73 (1990). Likewise, although the union's duty includes undertaking a "reasonable investigation," Black, 15 F.3d at 585, that duty "does not require [the] union to exhaust every theoretically available procedure simply on the demand of a union member." St. Clair v. Local Union No. 515, Int'l Bhd. of Teamsters, 422 F.2d 128, 130 (6th Cir. 1969) (internal citations omitted). "A union may breach its duty, however, if it processes a grievance in a perfunctory manner." LaCortiglia v. Aluminum Co. of Am., 976 F. Supp. 707, 711 (N.D. Ohio 1997) (citing Milstead v. International Bhd. of Teamsters, 580 F.2d 232, 235 (6th Cir. 1978)).
"Judging whether a union has acted discriminatorily or in bad faith ordinarily presents a simple and straightforward issue." Black, 15 F.3d at 584. "Bad faith" has been characterized as union actions lacking "complete good faith and honesty of purpose in the exercise of its discretion." Apperson v. Fleet Carrier Corp., 879 F.2d 1344, 1355 (6th Cir. 1989) (quoting Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 564 (1976)).
The Supreme Court has held that an employee must come forth with "substantial evidence" proving that his union breached its duty of fair representation. See Motor Coach Employees v. Lockridge, 403 U.S. 274, 299 (1971). Evidence that a union chose not to proceed with a grievance through arbitration alone will not suffice, since the Court, as a matter of public policy, affords great deference to the union's decision to abandon a grievance it deems meritless.
In providing for a grievance and arbitration procedure which gives the union discretion to supervise the grievance machinery and to invoke arbitration, the employer and the union contemplate that each will endeavor in good faith to settle grievances short of arbitration. Through this settlement process frivolous grievances are ended prior to the most costly and time-consuming step in the grievance procedures. Moreover, both sides are assured that similar complaints will be treated consistently, and major problem areas in the interpretation of the collective bargaining contract can be isolated and perhaps resolved. And finally, the settlement process furthers the interest of the union as statutory agent and as coauthor of the bargaining agreement in representing the employees in the enforcement of that agreement.
If the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery provided by the contract would be substantially undermined, thus destroying the employer's confidence in the union's authority and returning the individual grievant to the vagaries of independent and unsystematic negotiation. Moreover, under such a rule, a significantly greater number of grievance would proceed to arbitration. This would greatly increase the cost of the grievance machinery and could so overburden the arbitration process as to prevent it from functioning successfully.Vaca, 386 U.S. at 191.
There is no evidence of discrimination, bad faith or arbitrariness in this case. It is undisputed that the plaintiff maintained a zero balance in his incident bank. In fact, the union had never grieved a claim based on this so-called "pointing out." Minsor Mot. Summ J. Ex. 1, Cimino aff. at ¶ 5. Although the plaintiff was aware that another person who was terminated for violation of the attendance policy regained his job, he points to no evidence that the union played any role in that process. It is the company that has made decisions in the past not to terminate based on "pointing out" and the plaintiff in fact was rehired by Minsor twice after being terminated, although not for violating the attendance policy.
The plaintiff's supports his argument with his own deposition in which he states that the union made representations that they would follow up on his case. However, the portions of the record that the plaintiff cites do not support the conclusion that the union acted arbitrarily, in a discriminatory manner, or in bad faith. The plaintiff stated the following:
Q. So you were led to believe your grievance was proceeding?
A. Yes.
Q. How about Mr. Kariem did he give you any, did he create the perception that the union was proceeding with the grievance
A. Yes.
Q. What did he do?
A. He said he would contact me, but he never did.
Q. Did Mr. Kariem ever tell you they weren't going to grieve your discharge?
A. He didn't tell me until after like five to six months had probably went by by the time he told me. . . .
Q. So that was the first time you would have been aware?
A. That was the first time I knew they, I was aware they didn't file a grievance.
Pl.'s Resp. Br. Ex. 4., Sims dep. at 71-72. That testimony, however, does not explain how the union acted improperly. First, Kareem was not responsible for that stage of the grievance process. UAW Mot. Summ. J. Ex. 6., Kareem dep. at 13. Second, the plaintiff does not suggest how Kareem's conduct was anything but negligent, if that.
The plaintiff also states that Gerald Kareem lied when he said he spoke to Akins about the plaintiff's case. The plaintiff so concludes because Akins testified that he did not talk to anyone else aside from the Shop Committee. UAW Mot. Summ. J. Ex. 3, Akins dep at. 37. The plaintiff does not explain, however, how this failure to contact Akins was motivated by personal animus, or was arbitrary, or discriminatory. Once again, accepting this allegation as true, the plaintiff does not explain how Kareem's failure to follow through was anything more than negligence.
Finally, the plaintiff states that Kareem admits at his deposition that he did not always follow through with his promises to the plaintiff. The plaintiff draws this conclusion because Kareem stated that he had a second conversation with the plaintiff and Kareem said he would talk to Akins' about the five-minute wash-up period and the plaintiff's apparent misunderstanding about it. Kareem dep. at 18. The portion that the plaintiff cites does not indicate that Kareem never followed through. Even if it did, that portion makes no reference to the reason why Kareem never followed through, and thus does not demonstrate arbitrary, discriminatory, or bad faith conduct. Moreover, Kareem, as international representative, apparently was under no obligation to help the plaintiff — Kareem worked at a later stage in the grievance process after an employee had appealed, see id. at 13 — and there is no indication that Kareem's failure to follow through transcended negligence.
The Court is satisfied that in this case the undisputed facts demonstrate that "the Union's refusal to [pursue the plaintiff's] grievance was based on its reasonable and informed conclusion that the grievance should not be pursued, it did not breach its duty of fair representation." Driver v. U.S. Postal Service, Inc., 328 F.3d 863, 870 (6th Cir. 2003).
III.
The Court determines that the plaintiff has not come forward with evidence that the UAW breached its duty of fair representation of him. Because the plaintiff must prevail on that claim in order to maintain his hybrid Section 301 action, see Black, 930 F.2d at 510, both defendants are entitled to summary judgment.
Accordingly, it is ORDERED that the defendants' motions for summary judgment [dkt #s 19, 20] are GRANTED.
It is further ORDERED that the complaint is DISMISSED with prejudice.