Opinion
Case No. 1:03-cv-0816-DFH-TAB.
March 3, 2005
Edward R. Hannon, HANNON ROOP HUTTON, for Plaintiff.
ENTRY ON MOTION FOR SUMMARY JUDGMENT
Plaintiff Edward Huber was a member of the United Automobile, Aerospace Agricultural Implement Workers of America-United Auto Workers while he worked at the Rolls-Royce Corporation's Allison Engine Company ("Rolls-Royce-Allison") in Indianapolis. Rolls-Royce-Allison discharged Huber on February 25, 2000 after he failed a drug test. Huber had been working under a "last chance agreement" that gave management the right to give him a drug test at any time and to fire him if the results were positive. In this lawsuit, Huber has sued the local and the international union for allegedly failing to fairly represent him in violation of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 141, et seq. Defendants have moved for summary judgment, and the undisputed facts show that the defendants' motion must be granted. First, Huber's firing did not violate the collective bargaining agreement. Under well established precedent on the duty of fair representation, there is no viable claim against the union if the employer did not also violate the collective bargaining agreement. Also, Huber's various complaints about the handling of his grievance do not raise any genuine issues of material fact. The union was not required to pursue further than it did Huber's so-called "knee-pad" grievance (which football fans might compare to a "Hail Mary" pass). The law allows the union to exercise judgment and discretion in deciding whether and how far to pursue apparently hopeless cases.
Huber originally brought federal claims against the union for violations of the LMRA, the National Labor Relations Act, and the Americans with Disabilities Act, as well as state law claims for breach of fiduciary duty, breach of contract, and defamation. All but the LMRA claim were dismissed at Huber's request.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, affidavits, and other materials demonstrate that there exists "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). Only genuine disputes over material facts can prevent a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the suit under the governing law, and a dispute about a material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id.
On a motion for summary judgment, the moving parties must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which the parties believe demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Where the moving parties have met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Local Rule 56.1 requires the party opposing a motion for summary judgment to identify specific and material factual disputes. The existence of some metaphysical doubt does not create a genuine issue of fact. A party must present more than mere speculation or conjecture to defeat a summary judgment motion. Liberty Lobby, 477 U.S. at 252; Packman v. Chicago Tribune Co., 267 F.3d 628, 637 (7th Cir. 2001); Sybron Transition Corp. v. Security Insurance Co. of Hartford, 107 F.3d 1250, 1255 (7th Cir. 1997). When deciding a motion for summary judgment, the court considers those facts that are undisputed and views additional evidence, and all reasonable inferences drawn therefrom, in the light reasonably most favorable to the non-moving party. See Fed.R.Civ.P. 56(c); Liberty Lobby, 477 U.S. at 255; Celotex, 477 U.S. at 323; Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999).
Undisputed Facts
The following facts are either undisputed or reflect the evidence in the light most favorable to plaintiff Huber as the party opposing summary judgment. Adverse facts established by the defendants beyond reasonable dispute are included in the narrative.
Edward Huber was employed by Rolls-Royce's Allison Engine Company from March 13, 1995 until February 25, 2000. While employed at Rolls-Royce-Allison, Huber was a member of the bargaining unit represented by the International Union and its Local 933. Local 933 is an amalgamated local representing bargaining unit employees who are employed by Rolls-Royce, Allison Transmission, and Ryder Logistics. Woodcock Dec. ¶ 5. The Rolls-Royce unit of Local 933 is commonly referred to as the Maywood Unit, and the Allison Transmission Unit of Local 933 is commonly referred to as the Speedway Unit. Id. During the period relevant to the events surrounding Huber's discharge and grievance, Rolls-Royce-Allison and the union were parties to a collective bargaining agreement ("CBA"). Def. Ex. 4; Woodcock Dec. ¶ 6.
The events relevant to Huber's February 2000 discharge and grievance began in 1996. On July 16, 1996, Rolls-Royce-Allison discharged Huber as a voluntary quit when he did not return to work after a period of sick leave. Def. Exs. 4, 11; Woodcock Dec. ¶ 12. The union filed a grievance on Huber's behalf and negotiated for his reinstatement. Def. Ex. 12; Woodcock Dec. ¶ 13. Rolls-Royce-Allison reinstated Huber after he signed a "last chance agreement" on March 4, 1997. Def. Ex. 13; Woodcock Dec. ¶ 14; Farley Dec. ¶ 7; Huber Dep. at 25-29, 114. The last chance agreement, which was to last for three years, provided in relevant part:
In cases where Management deems it to be appropriate, Mr. Huber may be asked to submit to use of a drug and alcohol screening administered by the Plant Medical Department. Positive finding will result in immediate discharge. Refusal to submit to Management's request for such drug and alcohol screening will result in discharge.
It is specifically understood that this settlement is Mr. Huber's last chance to establish himself as a productive employee of Allison Engine Company and if he fails to complete any of the aforementioned terms and conditions of this agreement he will be immediately discharged.
Def. Ex. 13, ¶¶ 8-9.
On February 18, 2000, a few weeks before his last chance agreement was due to expire, Huber was involved in a dispute with his direct supervisor, Area Manager Danny Self. Huber Dep. at 30-34. A few hours after the dispute, Rolls-Royce-Allison's management ordered Huber to submit to a drug and alcohol screening test, and Huber complied. Woodcock Dec. ¶ 15; Farley Dec. ¶ 12; Huber Dep. at 34-37. Huber's drug test was verified as positive for THC metabolite (marijuana) on February 22, 2000. Def. Ex. 36; Huber Dep. at 61-62. Huber subsequently entered an outpatient drug program. Huber Dep. at 45-46. Huber had a disciplinary interview with management on February 25, 2000, during which Huber was represented by Local 933 Zone Committeeperson Dean Farley and District Committeeperson David Jugg. At the interview management told Huber that he had tested positive for marijuana, and Huber acknowledged that he had a problem with drug use. Woodcock Dec. ¶ 16; Farley Dec. ¶¶ 13-14; Def. Ex. 4. Rolls-Royce-Allison discharged Huber that same day. Woodcock Dec. ¶ 17; Farley Dec. ¶ 15; Def. Ex. 14. On February 28, 2000, Jugg filed a grievance on Huber's behalf. Woodcock Dec. ¶ 18; Farley Dec. ¶ 16; Def. Ex. 15.
Under the CBA, the grievance procedure was divided into several steps. Def. Ex. 4, ¶¶ 28-55. At Step 1, an employee presents a grievance to his supervisor. If not adjusted by the supervisor, the grievance is reduced to writing on company forms and signed. If the grievance is not adjusted at Step 1, the District and/or Zone Committeeperson takes the grievance to higher levels of company supervisors (Step 1B). If the grievance is not adjusted at Step 1B, it is referred to the appropriate Shop Sub-Committee (Step 2A). Grievances not adjusted at Step 2A are appealed to the Shop Committee as a whole (Step 2B). The Shop Committee could then further investigate the grievance. If the grievance is not adjusted at this step, the regional director of the International Union reviews the case and determines if an appeal should be pursued. If the grievance is appealed, to the International Union, the case is considered and ruled on by an Appeal Committee (Step 3). If the grievance is still not adjusted, it may be appealed to an impartial umpire, provided it is the type of case on which the umpire is authorized to rule. The umpire's decision is final and binding.
Rolls-Royce-Allison denied Huber's grievance at Steps 1A and 1B of the grievance procedure. Def. Ex. 15; Def. Ex. 4, ¶¶ 29-32; Woodcock Dec. ¶ 18. This elevated the grievance to Step 2A, and then to Step 2B after the Shop Sub-Committee did not adjust the grievance.
The Shop Committee, represented by Zone Committeeperson Farley, then discussed Huber's grievance with Rolls-Royce-Allison's Labor Relations in a series of eight meetings held from March 6 to July 7, 2000 (March 6th, March 10th, March 20th, April 17th, May 10th, June 6th, June 29th, and July 7th). Farley Dec. ¶ 23.
On March 6th, Farley returned a telephone call from Huber, and told Huber that he had discussed his grievance with Labor Relations. Huber Dep. at 52. Farley also told Huber that he would have another meeting on March 10th with Labor Relations representative Steve Fitzpatrick. Farley Dec. ¶ 18. On March 16, 2000, Farley called Huber and told him that management refused to agree with Farley's proposal to reinstate Huber with back pay. Farley Dec. ¶ 19. Farley next spoke to Huber on April 11th, at which time he told Huber that his grievance still was not settled. Farley Dec. ¶ 20.
During the May 10th meeting with management, Farley asked Fitzpatrick to bring Huber back to work under a new last chance agreement. Farley Dec. ¶ 21. Management was not responsive. Farley solicited support from one of Huber's co-workers, as well as Danny Self, Huber's immediate supervisor. Farley Dec. ¶¶ 19-20; Huber Dep. at 31.
Rolls-Royce-Allison denied Huber's grievance a final time at the July 7, 2000 meeting with Farley. Farley Dec. ¶ 23. Farley stated that management denied Huber's grievance for a variety of reasons, including Huber's drug and attendance problems. Id. On August 18, 2000, the Local 933 Bargaining Committee withdrew Huber's grievance without prejudice at Step 2 of the grievance process. Def. Ex. 16. At some time during August but after Huber's grievance was withdrawn, Bargaining Committee chairman Robert Woodcock and Farley spoke with Huber about the withdrawal of his grievance. Farley Dec. ¶ 23; Woodcock Dec. ¶ 21. Huber received formal written notice on September 18, 2000 that his grievance had been withdrawn. Woodcock Dec. ¶ 22; Def. Ex. 17.
On September 19, 2000, Huber appealed Local 933's decision to withdraw his grievance. Woodcock Dec. ¶ 23; Def. Exs. 18-19. At the regular executive board meeting of Local 933 held on September 19th, the appeal was referred to Woodcock for investigation. Woodcock Dec. ¶ 24; Def. Ex. 20. Huber was notified in writing that his appeal was being considered by the Local 933 executive board. Woodcock Dec. ¶ 26; Def. Ex. 22. Woodcock prepared a written report for the board in which he explained the reasons underlying the decision to withdraw Huber's grievance. Woodcock Dec. ¶ 25; Def. Ex. 21. The board denied Huber's appeal on November 15, 2000. Woodcock Dec. ¶ 26; Def. Ex. 23. On November 16th, Huber was given written notice that his appeal would be presented to the Local 933 membership at the regular membership meeting on December 10, 2000. Woodcock Dec. ¶ 27; Def. Ex. 24. At the membership meeting, Huber addressed the membership on behalf of his appeal. He complains, however, that many members were in a separate room watching a football game and did not hear his plea on his own behalf. Huber Dep. at 73; Woodcock Dec. ¶ 28. Members of both the Allison and Rolls-Royce units of the union were permitted to vote on Huber's grievance. Huber Dep. at 74. Huber was formally notified by a letter dated December 11, 2000 that the Local 933 membership had voted 117 to 49 to uphold the decision of the executive board to deny his appeal. Woodcock Dec. ¶¶ 28-29; Def. Exs. 25-26.
Huber appealed the withdrawal of his grievance to the International Union executive board ("IEB") on January 9, 2001. Huber Dep. at 76; Def. Ex. 27. After Huber responded to the IEB's request for information, the IEB scheduled a hearing on Huber's appeal for October 29, 2001. Huber Dep. at 77-81, 84; Def. Exs. 28-33. Huber was represented by counsel at the hearing. Huber Dep. at 84, 89; Def. Ex. 34. On April 8, 2002, the IEB issued a written decision in which it denied Huber's appeal. Def. Ex. 38.
Huber appealed the negative decision of the IEB to the Public Review Board ("PRB"), whose members are appointed by the International Union but who remain independent of the union. Huber Dep. at 90, 93, 95; Def. Exs. 39-44; Klein Aff. ¶¶ 2-6. The PRB denied Huber's appeal on December 3, 2002. Def. Ex. 45; Huber Dep. at 95.
On January 7, 2003, Huber filed an unfair labor practice charge against Local 933 with the National Labor Relations Board. Huber Dep. at 97; Def. Ex. 46. The NLRB dismissed Huber's charge on February 25, 2003 for insufficient evidence to establish a violation. Def. Ex. 47. Huber then filed this action. Additional facts are noted below as needed, keeping in mind the standard that applies to a motion for summary judgment.
Discussion
The Supreme Court has found that the Labor Management Relations Act imposes on labor unions an implied duty of fair representation of their members. See Ford Motor Co. v. Huffman, 345 U.S. 330, 337 (1953) (LMRA imposed duty on union to make "honest effort to serve the interests of all of those members, without hostility to any"), extending Steele v. Louisville Nashville Railroad, 323 U.S. 192 (1944) (under Railway Labor Act, union could not violate rights of black employees by negotiating for seniority system and other work rules that excluded black employees). In Humphrey v. Moore, the Court used the phrase "duty of fair representation" to describe the responsibility of labor unions to the employees they represent, derived from the "undoubted broad authority of the union as exclusive bargaining agent in the negotiation and administration of a collective bargaining contract." 375 U.S. 335, 342 (1964).In Vaca v. Sipes, the Court spelled out the basic standards for lawsuits alleging breaches of the duty of fair representation, and it did so in the context of a union's decision about how, and how far, to pursue an individual employee's grievance. 386 U.S. 171 (1967). In Vaca, the Court declared that a union breaches its duty of fair representation when its conduct in representing an employee is "arbitrary, discriminatory, or in bad faith." 386 U.S. 171, 190 (1967); accord, Air Line Pilots Ass'n, International v. O'Neill, 499 U.S. 65, 67 (1991).
I. Compliance with the Collective Bargaining Agreement
In Vaca v. Sipes, the Supreme Court both allowed fair representation lawsuits in courts (as opposed to administrative actions before the NLRB or other similar bodies) and at the same time imposed significant restrictions on them. In such a case, the Court requires a plaintiff-employee to show both (a) that the employer violated the collective bargaining agreement and (b) that the plaintiff's union breached its duty of fair representation in failing to secure relief for the breach through the mechanisms of the collective bargaining agreement itself, including grievances, arbitration, and negotiation. 386 U.S. at 186-87. Writing for the Court in a later case selecting a statute of limitations for such actions, Justice Brennan emphasized the need for a plaintiff to prove both prongs: "Yet the two claims are inextricably interdependent. `To prevail against either the company or the Union, . . . [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating a breach of duty by the Union.' . . . The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both." DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 164-65 (1983), quoting United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 66-67 (1981) (Stewart, J., concurring in judgment), quoting in turn Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71 (1976); accord, Crider v. Spectrulite Consortium, Inc., 130 F.3d 1238, 1241 (7th Cir. 1997) ("the employee's claim against the union and his claim against the employer are interlocked: neither claim is viable if the other fails"). "When an employee's underlying contractual claim lacks merit as a matter of law, the employee cannot complain that the union breached its duty of fair representation in failing to process his or her grievance." Souter v. Int'l Union, United Auto., Aerospace Agr. Implement Workers of America, Local 72, 993 F.2d 595, 598 (7th Cir. 1993); White v. General Motors Corp., 1 F.3d 593, 595 (7th Cir. 1993); Ooley v. Schwitzer Division, Household Manufacturing Inc., 961 F.2d 1293, 1303 (7th Cir. 1992) (affirming summary judgment for union despite some evidence of bad faith; underlying claim for breach of contract had no merit, as a matter of law).
The undisputed facts here show that Rolls-Royce-Allison did not violate the CBA when it discharged Huber. Accordingly, the defendants are entitled to summary judgment on the unfair representation claim.
Huber argues that Rolls-Royce-Allison violated the CBA in two ways. First, he argues that the drug test that led to his firing violated the CBA, which did not allow random drug testing. See Def. Ex. 4 at 241, Doc. No. 27. He also points out that the CBA provides that a positive drug test will result only in the employee being deferred from work for two weeks for his first positive drug test.
These arguments ignore the undisputed fact that Huber was subject to a last chance agreement when he was tested for drugs and discharged. The LCA was very specific on this point: "In cases where Management deems it to be appropriate, Mr. Huber may be asked to submit to use of a drug and alcohol screening administered by the Plant Medical Department. Positive finding will result in immediate discharge." See Def. Ex. 13, ¶¶ 8-9. Under this language, to which Huber agreed in order to save his job and secure one last chance, management could insist on a drug test at any time for any reason. In other words, to save his job through the 1997 LCA, Huber gave up his right under the CBA to limit management's right to require him to submit to drug tests.
A last chance agreement like this one supersedes the relevant part of the CBA for a particular employee and must be enforced according to its terms. Tootsie Roll Industries, Inc. v. Local Union No. 1, Bakery, Confectionery, and Tobacco Workers' Int'l Union, 832 F.2d 81, 83 (7th Cir. 1987) (affirming district court decision to vacate arbitrator's award to employee discharged under last chance agreement; arbitrator's application of the company's regular absenteeism policy to employee impermissibly contradicted the clear and unambiguous language in the LCA that the employee would be discharged if she was absent "for any reason whatsoever" during the probation period); accord, International Union of Operating Engineers, Local 351 v. Cooper Natural Resourses Inc., 163 F.3d 916, 919 (5th Cir. 1999) (affirming district court decision to vacate arbitrator's award where last chance agreement allowed random drug testing but CBA did not; "last chance agreements constitute formal contractual settlements of labor disputes," and "[s]ince LCAs follow collective bargaining agreements in time, they should be construed as superceding a CBA in certain circumstances because an LCA reflects the parties' own construction of the CBA"); Coca-Cola Bottling Co. of St. Louis v. Teamsters Local Union No. 688, 959 F.2d 1438, 1440 (8th Cir. 1992) (concluding that the last chance agreement at issue "superceded the collective bargaining agreement" and that "`[i]f the employee fails to measure up as promised in a last chance agreement, the [employer] may proceed to administer the discipline earlier suspended,' without reference to the collective bargaining agreement"), quoting United States Dep't of Air Force v. Federal Labor Relations Auth., 949 F.2d 475, 478 (D.C. Cir. 1991); Ohio Edison Co. v. Ohio Edison Joint Council, 947 F.2d 786, 787 (6th Cir. 1991) (holding that arbitrator did not have authority to set aside last chance agreement imposed for violating terms was unreasonably harsh).
The LCA represented the parties' intentions with respect to Huber. If the parties to Huber's LCA had intended the regular drug testing policy in the CBA to apply to Huber, there would have been no reason for spelling out the specific requirements in the LCA. See Tootsie Roll Industries, 832 F.2d at 83. Because Huber's LCA provided for his immediate discharge upon a positive drug test, a reasonable jury could not find that Rolls-Royce-Allison violated the CBA when it held Huber to the letter of the LCA.
Second, Huber claims that Rolls-Royce-Allison violated the CBA by considering his earlier attendance record when deciding on his discharge and/or his grievance. Paragraph 76b of the CBA provides that management, when disciplining an employee, may not take into account prior infractions occurring more than three years earlier. To support his claim that his past attendance problem was one of the reasons Rolls-Royce-Allison discharged him, Huber cites Dean Farley's declaration about his meetings with management over Huber's grievance of his discharge: "Management continued to express no desire to return Huber to work because of his attendance and early leaving, his substance problem and the nature of the work he did and because he violated his last chance agreement." Farley Dec. ¶ 23. According to Huber, his last recorded instance of being late, leaving early, or not showing up was in 1996, more than three years prior to his discharge on February 25, 2000. Huber argues that because management had demonstrated a willingness to rehire employees who had been fired, management might have reinstated him if the union had insisted that management ignore his attendance record from more than three years earlier.
In Huber's brief, he states: "Evidence of the chance of reinstatement is found in Huber's testimony that he was told by a Local 933 official that there were eight discharges at approximately the same time [as Huber's discharge], yet four of those individuals were reinstated. (Huber Deposition Page 63)." Pl. Br. 45 at 7. Assuming that this testimony could survive a hearsay objection as a party admission, the testimony is not specific enough to present a genuine issue of material fact. Huber did not provide any facts suggesting that those reinstated were similarly situated to him in that they had failed a drug test and violated an earlier last chance agreement.
Paragraph 76 of the CBA applies to employees who have been disciplined by written reprimand, layoff, or discharge. Paragraph 76b provides: "In imposing discipline on a current charge, Management will not take into account any prior infractions which occurred more than three years previously." Def. Ex. 4. Thus, the three year limit applies to a disciplinary action such as a discharge. Huber presents no evidence, however, that Rolls-Royce-Allison considered his attendance record when it made the decision to discharge him, as distinguished from its later, and highly discretionary, decision whether or not to rehire him pursuant to his grievance. There is no doubt that Huber had been using marijuana and no doubt that the February 2000 drug test was positive. Under the terms of the LCA, to which Huber agreed to save his job, he could be fired for that violation. After the termination, Huber and the union were asking the employer to be lenient. The three-year limit in subparagraph 76b does not apply by its terms to such discretionary decisions by management about whether to rehire an employee previously discharged for good reasons.
Huber also argues that Rolls-Royce-Allison violated the CBA by not issuing a written response to his grievance, which was first presented to Labor Relations on March 6, 2000. This alleged violation of the CBA is distinct from Rolls-Royce-Allison's discharge of Huber, and the remedy for a slow written response would not be the reinstatement (or its monetary equivalent) that Huber seeks. The court considers the union's alleged failure to demand written notice from Labor Relations below in the context of Huber's unfair representation claim.
In his brief, Huber also claims that "the results from the [drug] test should not have factored into the decision to terminate Huber because the test results were not available until after Huber was dismissed." Pl. Br. 45 at 10-11. If this statement were supported by evidence it would be serious, but there is no evidence supporting the statement. The undisputed evidence shows that the drug test was administered on February 18, 2000, and the results were verified by the medical lab on February 22nd. Def. Ex. 36. Huber then had a disciplinary interview with Rolls-Royce-Allison management on February 25th, during which he was told that he had tested positive for marijuana. He also has admitted that he had a problem with drug use. Woodcock Dec. ¶ 16.
Huber has not come forth with evidence tending to show that Rolls-Royce-Allison violated the CBA when it discharged him. Accordingly, under the controlling principles that apply to fair representation cases, Huber could not prevail even if he could show that the union had acted arbitrarily or in bad faith. E.g., Ooley, 961 F.2d at 1303-04 (affirming summary judgment for defendants where employer did not violate CBA, despite evidence that would support finding that union acted in bad faith).
Huber argues that even if he cannot show a violation of the CBA, he was still entitled to have the union pursue a grievance further in the hope that the employer might be lenient, perhaps through yet another last chance agreement. The argument conflicts with the Supreme Court's decision in Vaca v. Sipes, 386 U.S. at 190-92, as well as numerous other decisions holding that a union is not required to pursue a meritless grievance to the bitter end of the dispute resolution process. In Vaca v. Sipes, the Supreme Court addressed a debate going on in 1967 as to whether every individual employee should have the right to have his grievance taken to arbitration or whether a union should have substantial discretion in making that decision. Writing for the Court, Justice White adopted the latter view. His explanation is worth setting forth in full, for it addresses the concerns Huber has raised:
Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement. In L.M.R.A. § 203(d), 61 Stat. 154, 29 U.S.C. § 173(d), Congress declared that `Final adjustment by a method agreed upon by the parties is . . . the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.' 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. See Cox, Rights Under a Labor Agreement, 69 Harv. L.Rev. 601 (1956).
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 grievances 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. See NLRB v. Acme Industrial Co., 385 U.S. 432, 438; Ross, Distressed Grievance Procedures and Their Rehabilitation, in Labor Arbitration and Industrial Change, Proceedings of the 16th Annual Meeting, National Academy of Arbitrators 104 (1963). It can well be doubted whether the parties to collective bargaining agreements would long continue to provide for detailed grievance and arbitration procedures of the kind encouraged by L.M.R.A. § 203(d), supra, if their power to settle the majority of grievances short of the costlier and more time-consuming steps was limited by a rule permitting the grievant unilaterally to invoke arbitration. Nor do we see substantial danger to the interests of the individual employee if his statutory agent is given the contractual power honestly and in good faith to settle grievances short of arbitration. For these reasons, we conclude that a union does not breach its duty of fair representation, and thereby open up a suit by the employee for breach of contract, merely because it settled the grievance short of arbitration. 386 U.S. at 191-92 (footnote omitted). The Seventh Circuit has followed this teaching to reject similar claims that unions violated the duty of fair representation by choosing not to pursue grievances that might be described as "knee-pad cases" or "Hail Mary" passes. See Reed v. Int'l Union of United Auto., Aerospace Agr. Implement Workers of America, 945 F.2d 198, 203 (7th Cir. 1991) (affirming summary judgment for union where it reached good faith decision that grievance lacked merit); Rupe v. Spector Freight Systems, Inc., 679 F.2d 685, 691 (7th Cir. 1982) ("in handling a grievance, the Union must be allowed the discretion to balance many considerations and interests, including the effect of various resolutions of the grievance on other employees, the requirements of group organization and coherence, the desire for consistent treatment of similar claims, the appropriate allocation of limited resources for pursuing both individual and group claims, the maintenance of the Union's bargaining power and the necessity of maintaining an effective continuing relationship with the employer"). Huber has not identified any precedent that would impose on the union a duty to pursue a groundless grievance further than it did.
II. Duty of Fair Representation
Even if Huber had raised an issue of material fact as to whether his discharge by Rolls-Royce-Allison violated the CBA, the union defendants would still be entitled to summary judgment. The undisputed facts show no breach of the duty of fair representation.
A union breaches its duty of fair representation when its conduct in representing an employee is "arbitrary, discriminatory, or in bad faith." Air Line Pilots Ass'n, International v. O'Neill, 499 U.S. 65, 67 (1991). A union's actions are 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." Id.; McLeod v. Arrow Marine Transport, Inc., 258 F.3d 608, 613 (7th Cir. 2001); see also Konen v. International Brotherhood of Teamsters, Local 200, 255 F.3d 402, 407 (7th Cir. 2001) ("So long as a colorable argument could be made at the time of the union's decision to drop its support that the grievance is meritless . . . the decision cannot be regarded as arbitrary."). In the context of pursuing and resolving grievances, "the union must provide some minimal investigation of employee grievances, but the thoroughness of this investigation depends on the particular case, and only an egregious disregard for union member's rights constitutes a breach of the union's duty." Filippo v. Northern Indiana Public Service Corp., 141 F.3d 744, 749 (7th Cir. 1998); accord, Garcia v. Zenith Electronics Corp., 58 F.3d 1171, 1176 (7th Cir. 1995). Under this deferential standard, Huber cannot survive summary judgment if the evidence tends to show only that the union made a mistake in handling his grievance. See Benditz v. Local 1540, United Food Commercial Workers Union, 1992 U.S. Dist. Lexis 13277, *5, 1992 WL 220671, * 2 (N.D. Ill. Sept. 3, 1992).
To establish discrimination or bad faith, courts look at a union's subjective intent. McKelvin v. E.J. Brach Corp., 124 F.3d 864, 868 (7th Cir. 1997). Specifically, Huber must present evidence tending to show that union representatives expressed subjective hostility toward him or his class and that this hostility adversely affected the union's handling of his grievance. Neal v. Newspaper Holdings Inc., 349 F.3d 363, 369 (7th Cir. 2003); Trnka v. Local Union No. 688, United Auto., Aerospace Agr. Implement Workers of America, 30 F.3d 60, 63 (7th Cir. 1994); Souter v. Int'l Union, United Auto., Aerospace Agr. Implements Workers of America, Local 72, 993 F.2d 595, 599 (7th Cir. 1993).
The court's review of the union's conduct is highly deferential. Konen, 255 F.3d at 407. "Under this extremely deferential standard, courts should not substitute their judgment for that of the union, even if, with the benefit of hindsight, it appears that the union could have made a better call." Ooley v. Schwitzer Division, Household Mfg. Inc., 961 F.2d 1293, 1302 (7th Cir. 1992). Huber also must provide evidence tending to show that the outcome of the grievance process probably would have been different if the union had acted differently. Garcia, 58 F.3d at 1176-77; Ludgatis v. United Parcel Service, 2004 U.S. Dist. Lexis 2090, *6, 2004 WL 432974, *2 (N.D. Ill. Feb. 6, 2004).
Huber claims that the union handled his grievance in a perfunctory manner because Local 933 did not investigate the procedure for how the laboratory determined his drug test was positive, did not have him take an additional drug test, and did not demand that Labor Relations issue a final decision on his grievance in writing within the required fifteen days. The record evidence relating to these issues would not permit a reasonable finding that the union's actions were arbitrary, discriminatory, or in bad faith. There is no evidence tending to show that the drug test result was not accurate.
Huber likens his case to that of the plaintiff in Miller v. Gateway Transportation Co., 616 F.2d 272 (7th Cir. 1980). In Miller, the plaintiff refused to drive a truck that he alleged exceeded the maximum legal height limit. The dispatcher concluded that the truck was within the legal limit, but Miller's own measurement showed that the height exceeded the limit. Miller filed a grievance after his employer disciplined him with suspension and a written warning.
A few months later, Miller's employer discharged him for delaying acceptance of a driving assignment. Miller filed another grievance, this time charging his employer with wrongful discharge. At a hearing before a committee composed of union and management representatives, a union representative merely read the written grievances Miller had prepared. The committee denied both grievances, as well as any appeal. Miller then brought an action against his employer and union in federal court claiming unfair labor practices. Miller, 616 F.2d at 274-75.
The Seventh Circuit reversed the district court's grant of summary judgment to the employer. The Seventh Circuit held that there was a genuine issue of fact as to whether Miller's refusal to drive the truck had been justified. If his refusal had been justified, then the warning and suspension would not have been justified. And if that had been true, his discharge would have lacked the required predicate of a "valid warning letter" and therefore would have violated the collective bargaining agreement. Moreover, the record did not indicate that Miller received a warning letter before his suspension, also in violation of the bargaining agreement. Miller, 616 F.2d at 276. The Miller court also held that the union did not fairly represent Miller:
So far as it appears, the union's representation consisted solely of a perfunctory reading of Miller's pro se written grievances. No effort was made to urge the absence of the warning letter predicate to Miller's eight day suspension. No investigation was made into the incident involving the height of the truck that gave rise to that suspension, nor was any attempt made to find witnesses to that incident or to obtain relevant records relating thereto.Miller, 616 F.2d at 277.
Huber's reliance on Miller is misplaced. First, in light of the circumstances at the time of the union's actions, a reasonable fact finder could not find that the union's decisions to not investigate the results or procedures of Huber's drug test and to not request a retest were "so far outside a wide range of reasonableness, as to be irrational." McLeod, 258 F.3d at 613. The undisputed evidence shows that the union had a superb reason to believe that Huber had actually failed the drug test. At his February 25, 2000 disciplinary interview, Huber admitted that he had a problem with drug use. Huber has testified in this case that he had used marijuana within the detectable period, that he was not surprised he tested positive, and that he had been smoking marijuana weekly in the six months before the final drug test. Huber has never claimed that the result of the drug test was an error or that he had not used marijuana. These facts decisively distinguish this case from Miller. Because Miller actually disputed the height of the truck, the union was remiss in not investigating his claim that the dispatcher's measurement was wrong. Here, the union had no reason to challenge the test results in the absence of a claim by Huber that the test result must have been wrong. (If one contemplates for a moment the prospect of a jury trial over whether the union should have challenged the accuracy or reliability of a drug test that was admittedly accurate, one gets a sense of how far Huber seeks to stretch the law in this case.)
In Huber's deposition he admitted to using marijuana during the 30-day period prior to the drug test. Huber Dep. at 38-40.
Second, Huber relies on the union's apparent failure to demand that Labor Relations issue a written response to Huber's grievance within the required time period. This failure, however, is not equivalent to the failure of Miller's union to demand a warning letter before Miller was suspended. The purpose of the warning letter in Miller was to give an employee a chance to correct a continuing course of misconduct or to avoid repetition of a single instance of misconduct. Miller, 616 F.2d at 276. The LCA served that purpose for Huber at a time when the employer had every right to fire him in 1997. The purpose of written notice from Labor Relations in 2000 was to give timely notice of management's decisions so that the union could quickly take a grievance to the next step if desired. Although Farley first presented Huber's claim to Labor Relations on March 6, 2000, Farley continued to have a series of meetings with Labor Relations on Huber's behalf until the last meeting on July 7th. Huber does not specify in his brief whether he received written notice from Labor Relations after July 7th. Regardless, unfair representation is not indicated by each and every failure to comply with every detail in the CBA's procedural requirements. Unlike the warning letter requirement in Miller, which had the potential to change the outcome of Miller's dispute with his employer, there is no evidence that the outcome of Huber's grievance would have been any different if Huber had received timely written notice from Labor Relations that it denied his grievance. Garcia, 58 F.3d at 1176-77. To the contrary, Farley was pursuing Huber's "Hail Mary" pass, asking for the employer's indulgence and leniency. Under such circumstances, the union could reasonably conclude that it would not be fruitful to insist on strict adherence to the CBA's timetable.
The CBA required that in Step 2B of the grievance procedure, "A final decision on grievances appealed to the Shop Committee will be given by the Labor Relations Staff in writing within a maximum of fifteen (15) working days from the date the grievance was first presented to Labor Relations, unless a different time limit is established [by] mutual agreement between Labor Relations and the Shop Committee in writing." Def. Ex. 4, ¶ 35. Huber's claim was first presented to Labor Relations on March 6, 2000.
Huber raises several other arguments in an effort to show the union's supposed bad faith in handling his grievance. None of these arguments would be sufficient to require a trial even if there were a triable issue as to whether the employer had violated the CBA.
First, the record evidence does not tend to show that the union representatives who handled Huber's grievance acted with an improper motive or with hostility toward Huber. Neal, 349 F.3d at 369; Trnka, 30 F.3d at 63. Assuming that Danny Self was hostile toward Huber, the union could reasonably pursue a strategy in an otherwise hopeless case of trying to have the employee's first-line supervisor ask that he be given another chance. There is no evidence suggesting that the union chose Self as an advocate for Huber because it believed that Self would give Huber a poor recommendation. Self did not otherwise participate in the grievance process. Huber offers no evidence that Self gave Huber a bad review or that he influenced management's decision in any way, or that the outcome of Huber's grievance would have been any different if the union had chosen a different advocate. Garcia, 58 F.3d at 1176-77.
Similarly, a reasonable fact finder could not conclude that the union's negotiation of an LCA calling for drug tests in response to an attendance problem was irrational or indicated hostility toward Huber. Although there is no evidence in the record on whether or not Huber's attendance problems and drug abuse were linked, they can reasonably be related. Moreover, Huber offers no admissible evidence that a three-year LCA is an unreasonable probation period. Nor is there evidence that Huber complained or was coerced before he signed the LCA. It was, after all, his last chance to save his job from what would otherwise have been a much earlier discharge.
Huber also argues that "most" of the union members at the December 10, 2000 meeting where he spoke were not paying attention to his presentation, yet the union allowed these members to vote on his appeal of the union's decision to withdraw his grievance. The vote was 117 to 49 to uphold the decision of the executive board to deny Huber's appeal. Without additional evidence regarding the knowledge or motivation of the voting members, a reasonable fact finder could not conclude that the members would have voted differently if the union had required that the members be more attentive. About one-third of the voting members at the meeting voted against denial of Huber's appeal, which suggests that at least some members watching football voted to pursue Huber's grievance.
Huber also contends that members of Local 933 who were not employed by Rolls-Royce-Allison were permitted to vote on his appeal. However, Huber does not dispute that appeals to Local 933 membership are heard by the entire membership. Woodcock Dec. ¶ 28. Local 933 is an amalgamated local representing bargaining unit employees who are employed by Rolls-Royce-Allison, Allison Transmission, and Ryder Logistics. Huber has not contended that the arrangement is unlawful.
Huber claims that the union failed to keep him adequately informed about the status of his grievance. The record shows that Farley had meetings with management regarding Huber's grievance from March 6th through July 7th. Farley spoke with Huber about his grievance on March 6, 2000, when Farley told Huber that he had discussed his grievance with Labor Relations and that he was going to have another meeting on March 10th; on March 16th, when Farley called Huber to tell him about management's failure to agree with Farley's proposal to reinstate Huber with backpay; and on April 11th, when Farley told Huber that his grievance was still not settled. Huber received formal written notification on September 18, 2000 that his grievance was withdrawn. While Huber would have preferred that Farley contact him after every meeting with management, a reasonable fact finder could not find that the union's frequency or content of communication with Huber was irrational or an egregious disregard of his rights, or reflected hostility toward him. Garcia, 58 F.3d at 1176; Souter, 993 F.2d at 599.
Finally, the union's characterization of Huber's grievance as a "knee-pad" case appears to have been entirely accurate. Huber was subject to a last chance agreement that provided for immediate discharge upon a positive drug test. Huber tested positive for marijuana during the probation period of his LCA, and he was discharged. Because Rolls-Royce-Allison did not violate the CBA by discharging him, Huber's grievance was in effect a bid for reinstatement by grace alone. The record would not support a finding that the union did not fairly represent him in those efforts.
Conclusion
The undisputed facts show that plaintiff Huber cannot prove either prong of his claims. He cannot prove that his discharge was a violation of the collective bargaining agreement, and he cannot prove that the union defendants breached their duty of fair representation. Defendants' motion for summary judgment on Huber's LMRA claim is hereby granted. Final judgment shall be entered accordingly.
So ordered.