Opinion
No. CV 00 0372852
August 11, 2004
MEMORANDUM OF DECISION RE (#108) MOTION FOR SUMMARY JUDGMENT
This is an action by the plaintiff, Adrienne Baumgartner ("Baumgartner"), against the defendant, American Federation of State, County and Municipal Employees, AFL-CIO, Council 4, Local 1565 ("the Union").
In her complaint, dated March 15, 2000, Baumgartner alleges, inter alia, that she "was discharged by her employer, the Connecticut Department of Correction" (DOC), while a member of the Union. She further alleged that the defendant was "the designated and recognized representative of the plaintiff" which had an obligation under Section 5-271, C.G.S. to act for the plaintiff and to represent her interests in her relationship with DOC.
The plaintiff has further alleged that the Union failed to timely file a request for arbitration on behalf of the plaintiff thereby resulting in a determination by the Connecticut Board of Mediation and Arbitration that the plaintiff's grievance was "not arbitrable." She further alleges that the Union wrongfully failed to inform her of its failure to so file.
She also alleged that the Union fraudulently concealed its failure to timely file for approximately six months, thereby costing the plaintiff her remedy under the collective bargaining agreement.
The defendant has moved the court for summary judgment on the ground that the plaintiff cannot prove a breach of duty of fair representation and on the additional ground that the plaintiff failed to allege in her complaint that her employer, DOC, violated the collective bargaining agreement by firing her and, consequently, cannot maintain an action against the Union for breach of the duty of fair representation.
A "motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279 (1989). "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nomnoving party." Webster Bank v. Oakley, 265 Conn. 539, 545 (2003).
Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751 (1995). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252 (2003).
FAILURE OF PLAINTIFF TO ALLEGE THAT EMPLOYER VIOLATED CBA
While the defendant is correct in its claim that "an employee has no cause of action whatsoever against [her] union where the employer has not breached the collective bargaining agreement," as set forth in Hines v. Anchor Motor Freight, 424 U.S. 554, 568-70 (1970), care should be taken to note that in the instant case the defendant maintains that the plaintiff has no cause of action against the Union because she failed to allege that her employer breached the CBA. The Union also argues that the plaintiff is limited to the allegations set forth in her complaint and that there is an "utter dearth" of any claim that the employer (DOC) acted improperly in terminating the plaintiff's employment.
As noted above, in her complaint the plaintiff noted that "the plaintiff was discharged by her employer." It is further alleged that "the defendant [Union] thereupon, acting on the plaintiff's behalf, filed a grievance regarding the said discharge." It is further alleged that "the plaintiff requested the defendant to file [a] request for arbitration and the defendant agreed to do so."
While the plaintiff's complaint, as originally filed did not expressly allege a violation of the CBA by the plaintiff's employer, that allegation is found to be implicit in the complaint when read as a whole. Why else would the plaintiff have called upon the union to file a grievance regarding the discharge and then to seek arbitration when the grievance was denied by the Office of Labor Relations? Clearly, this cause of action is based in the plaintiff's belief that the discharge was wrongful, as evidenced by the efforts undertaken by the plaintiff to seek to have that wrong reviewed and corrected.
After this argument was raised by the defendant, the plaintiff filed a motion to amend complaint to specifically allege that the discharge was "without just cause, in violation of the collective bargaining agreement."
The failure of the plaintiff to expressly allege a violation of the CBA by the plaintiff's employer is not a sufficient reason to find that the plaintiff cannot maintain an action against the Union for breach of fair representation.
PLAINTIFF'S FAILURE TO ALLEGE AND PROVE BREACH OF FAIR REPRESENTATION
Among the documents and evidence offered by the Union is a recitation of a portion of Article Twelve, Section Five of the collective bargaining agreement which provides, in relevant part, "A grievance shall be deemed waived unless subsequently processed within the the limits provided in this agreement."
In the instant case, the request for arbitration was required to have been received by the Connecticut Board of Mediation and Arbitration within 40 days of March 3, 1999, the date upon which the plaintiff received the notice from the Office of Labor Relations that her grievance had been denied.
The plaintiff alleges in her complaint that the Union failed to file the request for arbitration in a timely manner. The Union maintains that it did file on time, but that for some unknown reason, the application was not processed until after the 40-day deadline and, consequently, it was deemed to be untimely.
In the memorandum in support of the motion for summary judgment the defendant relies upon the holding in Veca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), wherein the Supreme Court held that a union breaches its duty of fair representation to a client, "only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory or in bad faith." Veca, supra, p. 190.
The defendant further maintains that the allegations against it in the complaint do not rise to those necessary to establish a breach of duty to the plaintiff. "[T]he duty of fair representation is not breached when the union fails to process a meritless grievance, engages in mere negligent conduct or fails to process a grievance due to an error in evaluating the merits of the grievance." (Emphasis added.) Cruz v. Local Union No. 3 of the Int'l. Bhd. Of Electrical Workers, 34 F.3d 1148, 1153-54 (2d Cir. 1994).
The defendant also cites Cook v. Pan American World Airways, Inc., 771 F.2d 635, 645 (2d Cir. 1985), for the proposition that, "As long as the Union acted in good faith the Court may not intercede on the part of an employee who may have been prejudiced by a rationally founded decision." (Emphasis added.)
The cases cited by the defendant in support of its motion are each distinguishable from the instant case in one very critical way. In those cases, the union took up and evaluated the employee's claims, considered whether or not to proceed to arbitration and made a "rationally founded decision" not to pursue them. A critical factor in allowing the union the discretion to not pursue an individual union member's claim is the balancing test a union must conduct in deciding what is best for the entire union as opposed to the individual member who wants to grieve the employer.
When the union makes the conscious decision not to pursue an employee's grievance, you have the situation cited in Cruz and Cook and Veca.
In this case, the egregious conduct complained of by the plaintiff, Baumgartner, is the failure of the Union to timely file a request for arbitration, after the Union had determined that it was the right thing to do — and then failing to advise the plaintiff that it had "dropped the ball" until it was too late for the plaintiff to salvage her grievance.
In Veca, the judge who charged the jury summed up the situation very accurately when he told them that they must return a verdict for the defendants, "if you find and believe from the evidence that the union and its representatives acted reasonably and in good faith in the handling and processing of the grievance of the plaintiff." (Emphasis added.) The corollary being that if they found the union had failed to so act in the "handling and processing" of the grievance, they were to find for the plaintiff.
What could be more illustrative of the failure to act reasonably and in good faith in the handling and processing of a grievance than the failure to timely file it, thereby causing it to be considered "not arbitrable?"
In Veca, the Court went on to note ". . . we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion . . . (Emphasis added.) Veca, supra, p. 191. What could be more perfunctory than the failure to timely serve and file a request for arbitration resulting in the loss of the plaintiff's remedy under the collective bargaining agreement?
Whether or not the defendant did, in fact, act in such a way as to breach its duty to the plaintiff thereby resulting in the damages and losses claimed by the plaintiff remain to be determined by the evidence and testimony at trial.
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500 (1988).
As noted, in order to grant the motion for summary judgment before it, the court must find that, as a matter of law, there are no genuine issues of material fact that the plaintiff's claim that the defendant breached its duty of fair representation is insufficient to maintain this action.
Whether or not the defendant Union acted "reasonably and in good faith in the handling and processing of the grievance of the plaintiff" or whether it "processed it in a perfunctory fashion," thereby causing it to be deemed "not arbitrable," cannot be determined without the type of evidence and testimony normally elicited at trial.
The court finds that the movant has failed to meet its burden and, for that reason, the motion for summary judgment is hereby denied.
By the Court,
Joseph W. Doherty, Judge