Craggy v . Wausau-Mosinee Paper Corp. CV-03-499-JD 08/04/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Barry L . Craggy

v. Civil N o . 03-499 JD Opinion N o .

Wausau-Mosinee Paper Corporation, et a l .

O R D E R

Barry L . Craggy, proceeding pro s e , has sued his union, his

former employer’s parent company, and its president for vacation

pay denied him during the third year of his sick leave from Wasau

Papers of New Hampshire, Inc.1 The union, on one hand, and the

parent company and its president, on the other, have moved for

summary judgment. Craggy has filed an objection to the union’s

motion but not to that of the parent company and its president.

Background

On October 1 9 , 1999, Craggy began a period of sick leave

from his job at Wausau Papers of New Hampshire (“Wausau Papers”).

His employment, which terminated on April 3 0 , 2002, was governed

by a collective bargaining agreement between the company and his

union, Paper-Allied Industrial, Chemical and Energy Workers

1 Craggy has not sued Wausau Papers of New Hampshire. International Union Local 1-0061. Through the agreement, Wausau

Papers recognized the union as “the collective bargaining agency

for its employees in all matters pertaining to wages, hours, and

working conditions.” Section 6.5 of the agreement states that

“[s]eniority and insurance benefits will continue up to thirty-

six (36) months for any employee absent due to sickness or accident” but makes no mention of vacation pay during that

period. In section 12.15, the agreement provides that When employees are qualified to receive paid vacation but do not have sufficient earnings for the prior year on which to base vacation pay because of . . . being on sick leave . . . they shall have their vacation pay computed at the rate of forty (40) hours times their regular straight time hourly rate . . . . Employees with two (2) or more years seniority and who are laid off, shall have their vacation pay computed at the rate of 2% of their gross annual earnings for the prior year or forty (40) hours straight time pay, whichever is greater for up to two years.

Previous versions of the collective bargaining agreement

contained identical provisions.

After Wausau Papers refused to pay Craggy for vacation time

during the third year of his sick leave, he enlisted the aid of

the union president, Murray Rogers. Rogers asked Wausau Papers

for an explanation of its treatment of Craggy. Greg Nolin, the

director of human resources for Wasau Papers, answered in writing

that employees were ineligible for further vacation pay after

they had been out of work for more than two years, whether due to

2 a work-related injury or an unrelated malady.

The union responded by filing a charge against Wausau Papers

with the National Labor Relations Board on October 1 1 , 2002,

alleging that the policy stated by Nolan amounted to “a

unilateral change in conditions of employ.” As a settlement of

the charge, Wausau Papers offered to extend eligibility for a third year of vacation pay to employees out with work-related

injuries, but not to employees out due to an unrelated accident

or sickness. The company explained that it would be unfair “to

pay the same benefits to those out for sickness or absenteeism as

those who were out due to an injury sustained while working.”

Rogers conferred with the president of the union local about

the employer’s proposal. They decided to accept the offer for a

number of reasons, including “the absence of specific language in

the Collective Bargaining Agreement dispositive of the issue” and that their “only solid evidence . . . was that of a past practice

of nine years duration of paying vacation pay to employees while

absent from work for only two years . . . .” Rogers

acknowledges, however, “some evidence of a practice of paying

vacation pay during a three year absence from work.”

Nevertheless, the union had little confidence that the NLRB’s

ruling on the unfair labor practices charge would result in any

more than two year’s vacation pay for employees absent for any

3 reason. Accordingly, the union evaluated the offer as “most

likely to benefit the largest number of [its] members because it

increased the vacation pay from two to three years for employees

absent from work due to workers’ compensation.”

After accepting the offer, Rogers sent a letter to Craggy

dated October 2 8 , 2002. The letter stated that Rogers had investigated the company’s policy of limiting vacation pay to two

years and discovered that the practice had been in place since

1993. Rogers also wrote that “[i]t turns out Dick LaPoint made

the change with Web Barnetts [sic] blessing.” Barnett, the union

president at that time, denies “mak[ing] any agreement with Dick

LaPoint and/or Wausau Papers that would have changed the policy

for vacation pay for sickness/accident employees from being

eligible for three years to two years.” Rogers’s letter to

Craggy also related the substance of the offer by Wausau Papers and stated that “it would be nearly impossible for the union to

pursue the issue and win. Therefore we cannot pursue it any

further.” On October 2 9 , 2002, Wausau Papers and the union

signed a letter of understanding memorializing the union’s

acceptance of the offer and withdrawal of the charge.

Craggy brought a small claims complaint against Wausau

Papers’s parent company, Wausau-Mosinee Paper Corporation, and

its president, Tom Howatt, in Lancaster District Court on January

4 1 6 , 2003, seeking $4,453.40 in unpaid vacation time for the third

year of his sick leave.2 Craggy later amended his complaint to

add the union on the theory that it “has failed to respond to

inquiries and reports made by Plaintiff relative to the merits of

this case and has otherwise acted unreasonably.” The union

timely removed the case to this court on the ground that Craggy’s

claim arose under federal law, namely, the National Labor

Relations Act and the Labor Management Relations Act.

Standard of Review

On a motion for summary judgment, the moving party has the

burden of showing the absence of any genuine issue of material

fact. See Celotex Corp. v . Catrett,

1 7 , 323 (1986).

If the movant does s o , the court must then determine whether the

non-moving party has demonstrated a triable issue. Anderson v .

Liberty Lobby, Inc.,

4 2 , 256 (1986). In performing

this analysis, the court must view the entire record in the light

most favorable to the non-movant, “‘indulging all reasonable

inferences in that party’s favor.’” Mesnick v . Gen. Elec. Co.,

(1st Cir. 1991) (quoting Griggs-Ryan v . Smith,

1 2 , 115 (1st Cir. 1990)). Still, “[o]n issues where

2 The case was eventually transferred to Coos County Superior Court.

5 the nonmovant bears the ultimate burden of proof, he must present

definite, competent evidence to rebut the motion.”

; see also Invest Almaz v . Temple-Inland Forest Prods.

Corp.,

7 , 76 (1st Cir. 2001). The court cannot grant a

motion for summary judgment merely because the non-moving party

has failed to file a response; “it must assure itself that the moving party’s submission shows that ‘there is no genuine issue

as to any material fact and the moving party is entitled to

judgment as a matter of law.’” NESPK, Inc. v . Town of Houlton,

, 7 (1st Cir. 2002) (quoting Fed. R. Civ. P. 56(c)).

Discussion

I. The Union’s Motion for Summary Judgment

The National Labor Relations Act empowers those “designated

or selected for the purposes of collective bargaining by the

majority of the employees in a unit” as “the exclusive

representatives of all the employees in such a unit for purposes

of collective bargaining with respect to rates of pay, wages,

hours of employment, or other conditions of employment.”

(a). With this power comes the responsibility to

represent all members fairly. Marquez v . Screen Actors Guild,

3 , 44 (1998). A union breaches its duty of fair

representation to its members only if its actions during

6 negotiations with an employer are arbitrary, discriminatory, or

in bad faith. Torres-Matos v . S t . Lawrence Garment Co.,

(1st Cir. 1990); Condon v . Local 2944, United

Steelworkers of Am.,

9 0 , 594 (1st Cir. 1988). Thus,

“to successfully defend against a motion for summary judgment on

a duty of fair representation claim, the plaintiff must point the court to record evidence supporting any one or all of these

elements.” Morales-Vallellanes v . Potter,

(1st

Cir. 2003) (internal quotation marks omitted).

Craggy contends that the union’s settlement of his claim for

vacation pay during his third year of sick leave violated its

duty of representation in a number of ways. He points out that

no version of the collective bargaining agreement in effect for

the past fifteen years specifically states that employees absent

due to a non-work-related sickness or accident are not eligible to a third year of vacation pay. As the union concluded,

however, the agreement also does not expressly confer the right

to a third year of vacation pay while absent, and Craggy does not

argue to the contrary. Furthermore, other provisions of the

agreement suggest that such a right should not be implied. For

example, section 6.5 extends seniority and insurance benefits,

but not vacation pay, through three years of absence for sickness

or accident. Section 12.15 entitles certain employees who have

7 been laid off to a maximum of two years vacation pay.

“[A] union does not breach its duty of fair representation

by rejecting an employee’s interpretation of the collective

bargaining agreement unless the union’s interpretation is itself

arbitrary or unreasonable.” Bache v . Am. Tel. & Tel.,

, 291 (5th Cir. 1988); see also Miller v . Postal Serv.,

, 6 (D.N.H. 1992), aff’d,

(1st Cir. 1993).

Craggy has not explained how the union’s reading of the

collective bargaining agreement to exclude an absent worker’s

right to a third year of vacation pay fails this test.

Accordingly, the union’s interpretation of the agreement cannot

support his claim for breach of the duty of representation.

Craggy also argues that because Barnett denies making an

agreement with Wausau Papers eliminating eligibility for vacation

pay beyond the second year of sick leave, there was in fact no past practice to that effect. In the alternative, he asserts

that even if there were such an agreement, Barnett would have

lacked the authority under the union by-laws to enter into it and

it would not have survived the expiration of the collective

bargaining agreement in effect at the time of its making. Craggy

also claims that the union has acted in bad faith by failing “to

produce a signed written agreement between [the employer] and

[the union] supporting their ‘past practice’ . . . ”.

8 These arguments rely on an apparent misunderstanding of

Rogers’s explanation for the union’s decision to settle the

unfair labor practice charge. The union did not base its

decision on the existence of an actual agreement, whether written

or oral, with Wausau Papers governing eligibility for vacation

pay beyond the first two years of sick leave. As Rogers explains

in his affidavit, the union found “solid evidence” that for the

past nine years Wasau Papers had been giving vacation pay during

only the first two years of an employee’s absence.3 Craggy has

not come forward with any evidence disputing this point.4

Because the collective bargaining agreement did not forbid the

practice, the absence of a written agreement allowing it is

irrelevant to the reasonableness of the union’s decision.

The statement in the October 2 8 , 2002, letter that “Dick

LaPoint made the change with Web Barnetts [sic] blessing” appears

to refer to the commencement of the practice in 1993 with the union’s acquiescence. Barnett’s affidavit does not relate what

3 Although the affidavit does not explain the source of this evidence, Rogers stated in his letter to Craggy that payroll records supported the company’s characterization of its practice. 4 The bare reference in Rogers’s affidavit to “some evidence of past practice of paying vacation pay during a three year absence from work” does not create a triable issue of fact for summary judgment purposes, particularly in the absence of record facts as to whether those employees who received a third year of vacation pay were absent with work-related or other injuries.

9 the union did in response to the change or even state whether he

was aware of i t . Barnett simply denies “mak[ing] any agreement.”

Again, however, the fact that the union did not enter into an

agreement approving the practice does not mean that the company

did not implement it in 1993. Barnett’s affidavit therefore

creates no factual issue going to whether the union acted arbitrarily by basing its decision on the undisputed fact that

Wausau Papers had not given a third year of vacation pay to an

absent employee since 1993. See Miller,

(upholding summary judgment for union where grievance withdrawn

when investigation revealed that series of arbitrators had upheld

practice of refusing back pay after reinstatement due to

employees’ failure to mitigate damages).

Finally, Craggy asserts that the terms of the settlement are

arbitrary in their judgment that an “employee who is injured on the job and cannot work, possibly by his own lack of following

safety rules, is more worthy of three years vacation pay than

. . . [an] employee who cannot work, possibly because of a health

condition he has no control over.” Even when taken at face

value, this argument does not so undermine the union’s decision

to accept the settlement as to render it arbitrary, i.e., “so far

10 outside a wide range of reasonableness as to be irrational.”5

Airline Pilots Ass’n Int’l v . O’Neill,

5 , 67 (1991)

(internal citation omitted).

Because a union has limited resources, among other reasons,

courts must afford it “great latitude in determining the merits

of an employee’s grievance and the level of effort it will expend

to pursue it.” Miller,

& n.3; see also Mulvihill

v . Top-Flite Golf Co.,

5 , 25 (1st Cir. 2003). Craggy

has failed to come forward with any affirmative evidence that the

union breached its duty of fairly representing him under this

permissive standard of review. The union’s motion for summary

judgment is therefore granted.

II. The Other Defendants’ Motion for Summary Judgment

“Whether an employee sues his employer, his union, or both,

the required proof is the same: the employer’s action must have

violated the terms of the collective bargaining agreement, and

the union must have breached its duty of fair representation.

5 Nor are the terms of the settlement discriminatory in that they provide different benefits to employees injured on the job than off. See Considine v . Newspaper Agency Corp.,

(10th Cir. 1994) (“Inevitable differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such terms does not make them invalid.”)

11 Accordingly, failure of a claim against one party is tantamount

to failure of the action as a whole.” Miller,

(internal citation omitted); see also Morales-Vallellanes,

(quoting DelCostello v . Int’l Bhd. of Teamsters,

5 1 , 164-65 (1983)). Assuming, without deciding, that

Wausau-Mosinee Paper Corporation and its president could be

liable for Wausau Paper’s alleged breach of its collective

bargaining agreement with the union, Craggy’s claim against them

meets the same fate as his claim against the union. Their motion

for summary judgment is therefore granted.6 See Morales-

Vallellanes,

.

Conclusion

For the foregoing reasons, the union’s motion for summary

judgment (document n o . 15) is GRANTED. The other defendants’

motion for summary judgment (document n o . 19) is also GRANTED.

6 Craggy suggests in his objection to the union’s motion that its settlement with Wausau Papers cannot bind him because it was not reached until after the company would have given him the third year of vacation pay. This argument ignores the fact that Craggy’s grievance over the company’s refusal to give him a third year of vacation pay was precisely what the union settled.

12 The clerk of court shall enter judgment accordingly and close the

case.

SO ORDERED.

Joseph A . DiClerico, J r . United States District Judge August 4 , 2004

cc: Barry L . Craggy, pro se Anne G. Scheer, Esquire Vincent A . Wenners, Jr., Esquire

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