Stiles v . Chemical & Production CV-08-208-JM 09/24/09 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Rosanne Stiles

v. Civil N o . 08-cv-208-JM Opinion N o .

Chemical & Production Workers’ Union, Local N o . 3 0 , AFL-CIO

O R D E R

Plaintiff Rosanne Stiles’ amended complaint sets forth two

causes of action: (1) Count I , based on

, alleges

“a breach of the terms of the applicable collective bargaining

agreement as it relates to the representation of the plaintiff by

the defendant” (¶ 1 5 ) ; and (2) Count I I , also based on

, asserts “a breach of the defendant’s duty to fairly

represent the plaintiff as it relates to the disciplinary action

taken against her by the defendant” (¶ 1 9 ) . Both counts claim:

(a) a failure to properly investigate; (b) a failure to properly

prepare; (c) a failure to communicate; and (d) a failure to

pursue the grievance and to settle over plaintiff’s objection.

Defendant Chemical & Production Workers’ Union, Local N o . 30 has

moved for summary judgment (document n o . 11) claiming there is no genuine dispute of material fact that it did not breach any duty

owed to plaintiff in either the collective bargaining agreement

or the grievance arbitration proceedings and, therefore, it is

entitled to summary judgment on both counts. Plaintiff objects

(document n o . 1 2 ) . For the reasons set forth below, defendant’s

motion is granted.

Discussion

1. Background1

Plaintiff worked for over 22 years as a waitress for Volume

Services of America, Inc., d/b/a Centerplate (“Centerplate”).

Centerplate provided food and beverage services to Rockingham

Ventures at its track facility known as Rockingham Park. Through

Centerplate, plaintiff worked at Rockingham Park.

On January 6, 2007, plaintiff was suspended from work

following an altercation she had with her manager. Plaintiff was

upset because another waitress had apparently left her assigned

shift location early to go work in Rockingham Park’s poker room,

1 More detailed facts are discussed in the analysis section as they pertain to the various issues before the court. Only a brief summary of the incidents out of which this action arose is set forth here, based on defendant’s statement of material facts. See Def.’s Mem. in Supp. of Mot. for Summ. J. (document n o . 11-2) (“Def.’s Mem.”) at 1-13.

2 which was against company policy. When plaintiff’s shift ended

that day, she went into the poker room to tell the manager what

she had observed. In front of customers, plaintiff “protested”

this reassignment and told her manager she was going to report it

to “corporate.” A disagreement ensued, ending with the manager

following plaintiff out of the room and warning her that she

would be “written up.” Plaintiff was suspended from work while

the incident was investigated.

On January 9, 2007, defendant’s business agent, John

McDonough (“McDonough”), met with plaintiff, who had filed a

grievance about her suspension. Plaintiff explained to McDonough

the company rule that waitresses were not allowed to leave a

shift early and go into the poker room, and admitted she yelled

at her manager that she would report the January 6 shift change

to corporate, which prompted him to chase her across the poker

room. Plaintiff, McDonough and another union representative then

met with Centerplate officials to discuss plaintiff’s grievance.

Centerplate informed plaintiff and the union representatives that

it had statements from witnesses to the incident that reported

plaintiff had used profanity. They also told the union

representative that Centerplate had an established grievance

3 procedure plaintiff should have followed. Although McDonough

urged Centerplate to reinstate plaintiff, Centerplate decided to

terminate her. As a result, plaintiff’s grievance was amended to

include the termination and seek arbitration.

On January 2 5 , 2007, Centerplate provided McDonough with

copies of the statements about plaintiff’s behavior on January 6.

The statements were from a manager, three employees and a

customer. McDonough began to investigate plaintiff’s work

history and learned she had been outspoken and temperamental with

management and other employees several times previously. Many of

those outbursts had been tolerated, but plaintiff had received

disciplinary write-ups on at least five previous occasions

between 1986 and 2000. In December 2004, plaintiff had been

banned by Rockingham for one week because of her inappropriate

conduct toward other track employees. Significantly, in January

2005 Centerplate had provided plaintiff with “a final written

warning and notice that if she engaged in any verbally abusive

behavior towards management or other employees in the future, she

would be terminated.” Def.’s Mem. at 3 .

Following this investigation, defendant union’s attorney,

John Ward, concluded that arbitration should be demanded,

4 thinking that an arbitrator might reinstate plaintiff because of

her many years of service despite the strong evidence that the

altercation occurred as reported. Ward and Centerplate agreed on

an arbitrator and set a hearing date for September 2 0 , 2007. On

July 1 9 , 2007, Ward sent a document request to Centerplate

seeking numerous documents relevant to plaintiff’s grievance. He

also wrote a letter to plaintiff’s attorney, Scott Gleason,

advising him of the September 20 hearing date and informing him

of a planned August meeting with plaintiff.

To prepare for the hearing, McDonough agreed to travel to

New Hampshire in August 2007 to meet with plaintiff and any

witnesses she might have. McDonough left several voice messages

with plaintiff asking her to call him on his cell phone to

arrange to meet on August 8 and 9. Instead of calling his cell

phone, plaintiff called McDonough’s office on August 9, when he

was already in New Hampshire, instructing him to arrange through

Gleason the meeting with her. Because McDonough and plaintiff

never met, defendant requested the September 20 hearing be

postponed to give them additional time to prepare. After

notifying plaintiff of her need to cooperate, Ward and McDonough

arranged for another meeting with her on September 20 to review

5 evidence, including both documents and witnesses. Plaintiff did

meet with Ward and McDonough as planned, but failed to provide

any potential witnesses that day or to identify any documents for

the hearing. Plaintiff told Ward and McDonough that she

suspected Rockingham would not let her return to its property,

but got upset when asked why she thought that. Plaintiff told

Ward that it was his job to get her back to work and that Gleason

would handle matters with Rockingham.

Defendant worked with Centerplate to exchange information in

preparation for the arbitration hearing, now scheduled for

October 1 5 . Ward reminded plaintiff by letter dated October 3

that she needed to provide him with witness information and any

documents she thought were relevant to her case. Finally on

Friday afternoon, October 1 2 , with the hearing scheduled to begin

Monday, October 1 5 , plaintiff provided Ward with the names of 5

witnesses. Ward met with those witnesses Monday morning before

the hearing began. Ward never received the requested information

regarding plaintiff’s interim wages, however, so Ward sought and

obtained Centerplate’s agreement to bifurcate the arbitration

hearing to address the termination first and the back-pay issue

subsequently. After a full day of hearing, the arbitration was

6 continued to December 1 8 , 2007.

On October 1 7 , Centerplate expressed an interest in settling

the grievance, which Ward communicated to plaintiff. Although

plaintiff was not receptive to the idea initially, she eventually

agreed to consider a settlement that included a waiver of her

demand for reinstatement. She advised Ward that she would

discuss that proposal further with Gleason and get back to Ward

with her demand. She also promised she would provide Ward with

the documents needed to calculate her lost wages.

On November 1 9 , Centerplate confirmed plaintiff’s earlier

suspicion that Rockingham would not allow her to return to its

property even if she succeeded in her arbitration. With this

news defendant reassessed its strategy, because it had assumed

plaintiff was more likely to get reinstatement than back-pay and

now it was apparent reinstatement was not a viable remedy. That

same day Centerplate offered to settle the grievance for $2,500.

Ward called plaintiff to advise her of Rockingham’s decision and

relay Centerplate’s settlement offer. Plaintiff was upset by the

offer and expressed as much to Ward. Ward asked plaintiff to

provide him with the documents needed to calculate her lost wages

and to respond to Centerplate’s settlement by November 3 0 .

7 Plaintiff did not comply with either request.

Defendant then estimated plaintiff’s earnings would have

been $22,000, that her interim earnings were approximately

$11,000 since her termination and offered to accept a figure of

$11,000 in settlement of plaintiff’s claim. Centerplate

countered with a $5,000 offer on December 1 2 , 2007. Defendant

rejected that offer, but proposed a non-wage settlement of

$15,000, along with neutral recommendations and a mutual release,

because defendant thought its proposal was fair, informed

Centerplate it would accept the settlement even without

plaintiff’s approval.

The parties negotiated the terms back and forth before

finally agreeing on December 14 to a settlement for $10,000

payment to plaintiff for back-pay and other injuries in exchange

for, among other things, mutual releases. Ward advised Gleason

of the settlement agreement. On December 1 7 , Gleason informed

Ward that plaintiff rejected the settlement, but defendant

decided to accept it over plaintiff’s objections.

On January 2 4 , 2008, Ward sent Gleason a detailed letter

explaining the settlement terms and the many reasons why

defendant had agreed to accept i t . Ward emphasized that

8 Rockingham’s decision to ban plaintiff from returning to work on

its property was critical to the settlement decision, because

plaintiff’s disciplinary history made an award of back-pay

unlikely, and Rockingham’s decision made any potential

reinstatement order a nullity. Ward advised Gleason that he

believed the settlement was a better result than plaintiff would

have received through arbitration. On March 1 9 , Gleason finally

responded to Ward’s letter, disagreeing with his assessment. On

April 3 , Ward sent Gleason the final settlement agreement for

review and comment. Gleason objected to releasing Rockingham

from liability, and Ward brought that concern back to Centerplate

in an effort to remove that term from the agreement. Centerplate

would not agree to removing the Rockingham release, however,

which Ward advised Gleason of on July 3 , 2008.

Plaintiff’s tax returns indicate that she earned $19,437 in

2006. In 2007, the year she was terminated from Centerplate, she

reported $5,596 in wages, salary and tips from employment and

$4,628 in unemployment compensation, for a total of $10,224.

2. Standard of Review

Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

9 together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). A genuine issue is one “that properly can be resolved

only by a finder of fact because [it] may reasonably be resolved

in favor of either party.” Anderson v . Liberty Lobby, Inc.,

4 2 , 250 (1986). A material fact is one “that might affect

the outcome of the suit.” Id. at 248. In ruling on a motion for

summary judgment, the court construes the evidence and all

inferences reasonably drawn therefrom in the light most favorable

to the nonmovant. See Navarro v . Pfizer Corp.,

0 , 94

(1st Cir. 2001); Suarez v . Pueblo Int’l, Inc.,

9 , 53

(1st Cir. 2000).

The party moving for summary judgment bears the initial

responsibility of demonstrating the absence of a genuine issue of

material fact. Celotex Corp. v . Catrett,

1 7 , 323

(1986). Once the moving party has met its burden, the burden

shifts to the nonmovant to “produce evidence on which a

reasonable finder of fact, under the appropriate proof burden,

could base a verdict for i t ; if that party cannot produce such

evidence, the motion must be granted.” Ayala-Gerena v . Bristol

10 Myers-Squibb Co.,

6 , 94 (1st Cir. 1996) (citing Celotex,

and Anderson

4 9 ) . Neither

conclusory allegations, improbable inferences, nor unsupported

speculation are sufficient to defeat summary judgment. See

Carroll v . Xerox Corp.,

3 1 , 236-37 (1st Cir. 2002); see

also Price v . Canadian Airlines,

(D.N.H.

2006).

In order to “properly oppose” a motion:

an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Fed. R. Civ. P. 56(e). In addition, this Court’s local rules

provide that:

All properly supported material facts set forth in the moving party’s factual statement shall be deemed admitted unless properly opposed by the adverse party.

United States District Court District of New Hampshire Local Rule

(“LR”) 7.2(b)(2). Plaintiff has failed to comply with the

affidavit requirements in Fed. R. Civ. P. 56 (c) & ( e ) . She also

has not fully complied with the requirement that she provide “a

11 short and concise statement of material facts, supported by

appropriate record citations, as to which [she] contends a

genuine dispute exists so as to require a trial.” LR 7.2(b)(2)

(emphasis added).

When, as is the case here, the nonmoving party fails to

provide any documentation to refute the moving party’s properly

supported statement of material facts, those facts must be

accepted as true. See LR 7.2(b)(2); see also Mariani-Colon v .

Dep’t of Homeland Sec.,

(1st Cir. 2007)

(deferring to district court’s enforcement of local rules). An

improperly supported opposition motion does not automatically

give rise to a grant of summary judgment, however, because the

moving party still bears the burden of demonstrating no genuine

issue of material fact exists on any claim or defense it is

asserting. See Cordi-Allen v . Halloran,

5 , 28 (1st

Cir. 2006) (citing authority); see also Aguiar-Carrasquillo v .

Agosto-Alicea,

9 , 25 (1st Cir. 2006) (same); Fed. R.

Civ. P. 56 (c) & ( e ) . The district court must still review the

merits of the case based on the record before i t , to determine

whether summary judgment is appropriate. See Aguiar-Carrasquillo

445 F.3d at 2 5 . Once the record is so assessed, summary judgment

12 enables the court to “pierce the boilerplate of the pleadings”

and “dispos[e] of cases in which no trial-worthy issue exists.”

Quinn v . City of Boston,

8 , 28 (1st Cir. 2003) (citing

Suarez,

3 ) .

3. Analysis of Plaintiff’s Claims

a. Count I

Count I , to the extent that it is anything other than

another iteration of Count I I , is somewhat of a mystery.

Plaintiff does not provide any explanation of what terms of the

collective bargaining agreement, as they relate to representation

of her, defendant allegedly breached. She simply asserts that

defendant’s conduct breached “the terms of the applicable

collective bargaining agreement” without citing which terms give

rise to an individual cause of action against the union. See Am.

Compl., ¶ 1 5 . A review of that agreement, see Def.’s Mem., Ex.

14 (“Collective Bargaining Agreement”) (document n o . 11-34), does

not reveal any provision relating to defendant’s representation

of plaintiff that defendant could have breached. Plaintiff’s

objection to the motion for summary judgment does not offer any

13 facts or argument to support the claim.2 The Collective

Bargaining Agreement simply has no language creating an

enforceable obligation against the union by individual employees.

The law recognizes that a union, as the exclusive bargaining

representative of employees, has a statutory duty to fairly

represent those employees both in collectively bargaining for the

employees and in enforcing the resulting agreement. See United

Steelworkers of America, AFL-CIO-CLC v . Rawson,

6 2 , 372

(1990) (citing Vica v . Sipes,

7 1 , 177 (1967) to show

the rule is now “well established”). This duty of fair

representation does not arise from the collective bargaining

agreement, but instead arises from the National Labor Relations

Act itself and is breached “only when a union’s conduct toward a

member of the collective bargaining unit is arbitrary,

discriminatory, or in bad faith.” Id. at 373-74 (internal

quotation omitted). A collective bargaining agreement may be

negotiated to require the union to assume other responsibilities

towards the employees through some additional duty of care, as

2 Both parties address the necessity for an allegation that plaintiff’s employer violated the collective bargaining agreement but that is not the thrust of the Count I claim. Count I attempts to assert a claim against the defendant union based on its alleged violation of the Collective Bargaining Agreement.

14 plaintiff seems to allege in Count I , however such a duty would

be contractual and would need to be articulated expressly in the

agreement. See id. at 374 (explaining the limits on the duty of

fair representation). “If an employee claims that a union owes

him a more far-reaching duty, he must be able to point to

language in the collective-bargaining agreement specifically

indicating an intent to create obligations enforceable against

the union by the individual employees.” Id. at 374 (citation

omitted).

Plaintiff has not pointed to any such language, and I have

been unable to find any provision in the Collective Bargaining

Agreement that “relates to the representation of the plaintiff by

the defendant.” Am. Compl. ¶ 1 5 . There is nothing in the

agreement that could fairly be read to create a private right of

action by union members against the union. Defendant’s motion

for summary judgment on Count I is granted.

b. Count II

In Count I I , plaintiff asserts that defendant breached its

statutory duty, discussed supra, to fairly represent her in the

15 grievance proceedings which followed her termination.3 See Am.

Compl. ¶ 1 7 . Since defendant has no duty to represent plaintiff

in a meritless claim against her employer, for plaintiff to

succeed on Count II she must prove that her termination violated

the terms of the collective bargaining agreement4 and that

defendant’s representation of her was done either in bad faith or

in an arbitrary or discriminatory manner. See Teamsters v .

Terry,

5 8 , 564 (1992) (explaining the union’s duty to

pursue an employee’s grievances against an employer); see also

Emmanuel v . Int’l Bhd. of Teamsters,

(1st Cir.

2005) (same). Plaintiff contends here that defendant’s

settlement of her grievance was done arbitrarily and in bad

3 “The duty [of fair representation] requires a union ‘to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.’” Teamsters v . Terry,

5 8 , 563 (1992)(quoting Vaca,

7 7 ) . 4 Defendant first argues it is entitled to judgment as a matter of law because plaintiff did not allege in her complaint that Centerplate violated the Collective Bargaining Agreement when it discharged her. Construing the record in the light most favorable to plaintiff, as I must do on defendant’s motion for summary judgment, plaintiff’s reference to her grievance brought against Centerplate can reasonably be understood to assert a claim that her discharge was in breach of the agreement. See Am. Compl. ¶ 8 . I decline, therefore, to grant summary judgment on this basis.

16 faith, in breach of its duty to fairly represent her.

I adopt plaintiff’s succinct statement of the applicable law

on this point:

A union acts arbitrarily or in bad faith “if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a wide range of reasonableness as to be irrational.”

at 420 (quoting Miller v . United States Postal Service,

, 11- 12 (1st Cir. 1993)). This standard accords the unions substantial deference and ample latitude to perform their representative functions.

In addition, a union’s mere negligence or erroneous judgment will not constitute a breach of duty of fair representation. Miller, supra at 1 2 . A union’s failure to take a grievance to arbitration is a breach only when it is truly arbitrary or irrational. Newbanks v . Central Gulf Lines,

, 5 (D. Mass. 1999).

In order to successfully defend against a motion for summary judgment on a duty of fair representation claim, the plaintiff must point the court to record evidence supporting any one or all of the elements, specifically that the union acted arbitrarily or in bad faith or in a discriminatory manner. Morales, supra at 1 6 , quoting [sic] Griffin v . Air Line Pilots Ass’n, Int’l,

(7th Cir. 1994).

Pl.’s Mem. in Opp. to Def.’s Mot. for Summ. J. (“Pl.’s Opp.

Mem.”) (document n o . 12) at 4 .

Plaintiff points to four alleged breaches of duty by

17 defendant which I consider in turn.

(i) Failure to Properly Investigate

The First Circuit has clearly articulated a requirement that

a union has a duty to investigate alleged grievances.

The duty of fair representation mandates that a union conduct at least a “minimal investigation” into an employee’s grievance. Garcia v . Zenith Elec. Corp.,

(7th Cir. 1995). But under this standard, only an “egregious disregard for union members’ rights constitutes a breach of the union’s duty” to investigate. Caselli v . Douglas Aircraft Co.,

(9th Cir. 1985).

Emmanuel,

.

Defendant has established the following undisputed material

facts relating to its investigation:

• On January 9, 2007, within three days of plaintiff’s suspension, the union filed a grievance about the incident on p behalf. Document n o . 11-3, ¶ 1 7 .

On January 1 7 , 2007, defendant interviewed plaintiff and obtained her version of the facts surrounding the termination. Document n o . 11-3, ¶ 1 8 ; document n o . 11-25.

Also on January 1 7 , 2007, the union obtained the company’s side of the story. Document n o . 11-3, ¶ 1 9 ; document n o . 11-25.

On January 1 7 , 2007, the union requested copies of statements and other information that the company had relied upon in making its decision to terminate plaintiff. Document n o . 11-3, ¶ 2 0 .

18 On January 2 5 , 2007, the union received from the company and reviewed: • statements from a customer, three co- employees, and a manager; and • highlighted “Employment Policies” and “Standards of Conduct” the company stated that she violated by using foul language and gestures to a management employee and in front of customers; and a 1/6/05 “final warning” for harassment and misconduct which she had previously been given.

In July of 2007, the union representative left several unanswered voice messages for plaintiff seeking to arrange to meet with her on August 8th or 9th in New Hampshire to prepare her testimony for the scheduled September 20th arbitration. Document n o . 11-3, ¶ 2 7 .

On August 7th, the union representative traveled to New Hampshire and left more unanswered voice mails to plaintiff to arrange a meeting on the 8th. Document n o . 11-3, ¶ 2 8 .

Having continued the hearing to October, the union’s representative wrote plaintiff, warning her of non-cooperation, its right not to have to deal with her through her lawyer and that a failure to contact the union on or before August 31st would result in withdrawal of the grievance. Document n o . 11-3, ¶ 3 0 , document n o . 11-11.

Prior to an arranged September 20th meeting, the union told plaintiff that it wanted to prepare her and her witnesses for the arbitration hearing. Document n o . 11-3, ¶ 3 1 .

At the September 20th meeting, the plaintiff did not bring any witnesses nor arrange for the union representative to meet any. Document n o . 11-3, ¶ 3 2 .

19 Plaintiff was asked to identify her witnesses and provide any documents she thought relevant. Document n o . 11-3, ¶ 3 3 . She refused to do so at the meeting, but said she would within a week. Document n o . 11-4, ¶¶ 2 4 , 3 0 .

On October 3rd, the union sent plaintiff a letter reminding her that she had not identified her witnesses, had not provided relevant documents and told her that she must provide employment and interim compensation information as it was required to prove up her lost wages and to respond to the company’s document request. Document n o . 11-12.

On October 12th, plaintiff provided five names and her attorney faxed some documents, primarily of witnesses to the event and her past good work. Document n o . 11-4, ¶¶ 3 4 , 3 5 ; document n o . 11-21.

Prior to the hearing, plaintiff provided no information on interim earnings and the union obtained the company’s agreement to bifurcate lost earnings out of the initial stage of arbitration. Document n o . 11-4, ¶ 36-37.

Prior to the hearing on October 1 5 , 2007, the union attorney met with and prepared five witnesses plaintiff brought. Document n o . 11-4, ¶ 38.

When the union learned that the owner of the race track where plaintiff had worked for her employer would not allow plaintiff’s employer to bring her back, even if she was reinstated, the union began efforts to settle the case on the basis of her wage claim and again sought receipt of the information on interim wages by November 30th. Document n o . 11-4, ¶¶ 45-49.

The interim wage information was not supplied by plaintiff as requested. Document n o . 11-4, ¶ 5 1 .

20 In the face of the uncontradicted and overwhelming evidence of

this thorough investigation, plaintiff has not offered a single

fact or argument to establish a failure to properly investigate.

The union met its duty to investigate in a complete and

professional manner despite a shocking lack of cooperation by

plaintiff. Summary judgment on the investigation issue is

granted to defendant.

(ii) Failure to Prepare for Arbitration

Plaintiff’s complaint and objection to the motion for

summary judgment do not set out a single alleged fact or argument

to demonstrate a failure to prepare for arbitration. The record

is silent as to any failure to prepare, let alone one that rises

to the level of a breach of the duty of fair representation.

While the duty to prepare for arbitration is not as clearly

delineated as the duty to investigate, courts have recognized

such a duty inferentially. See U.S. Postal Serv. v . Lettis,

8 1 , 200-02 (E.D.N.Y. 1998) (explaining differences

in strategy and judgment do not constitute bad faith); Ghartey v .

S t . Queen’s Hosp., Local 1199,

6 0 , 163 (2d Cir. 1989)

(discussing challenge to union’s representation in arbitration).

Investigation is a prime component of preparation. The

21 undisputed facts set forth above pertaining to defendant’s duty

to investigate clearly establish that the union obtained

appropriate and thorough discovery of Centerplate’s documents and

oral evidence, interviewed and prepared plaintiff and her

witnesses, and sought all of plaintiff’s relevant documents. The

flaws, if any, in preparation were solely due to plaintiff’s

uncooperative delays in producing witnesses and documents.

Defendant has provided substantial material evidence of

preparation for arbitration. Plaintiff has provided no evidence

of defendant’s failure to adequately prepare. Summary judgment

is granted to defendant on the issue of arbitration preparation.

See Lettis,

(bald assertions uncorroborated

by any evidence cannot overcome summary judgment).

(iii) Failure to Communicate with Plaintiff

The frivolity of this claim is demonstrated by the total

absence of a single alleged failure to communicate by defendant.

As demonstrated by the facts outlined above, in the discussion of

the duty to investigate, defendant made numerous unanswered

telephone calls to plaintiff, sent letters to plaintiff and to

her attorney, met with plaintiff and talked with plaintiff. That

defendant did not withdraw the grievance based on plaintiff’s

22 flagrant lack of communication and cooperation is a testament to

the professionalism and dedication of the union.

Defendant has demonstrated by undisputed material facts that

it has more than met its communication duties in fairly

representing plaintiff. Whatever plaintiff’s counsel had in mind

in alleging a “failure to communicate”, he has certainly kept it

hidden. Nothing in the record remotely substantiates a claim

that defendant acted in bad faith or arbitrarily when it

attempted to communicate with plaintiff. “The district court is

free to disregard arguments that are not adequately developed.”

Higgins v . New Balance Athletic Shoe, Inc.,

5 2 , 260

(1st Cir. 1999). Summary judgment for defendant is also granted

on the alleged breach of defendant’s duty to communicate.

(iv) Failure to Pursue the Grievance and to Settle over Plaintiff’s Objection

Plaintiff’s final claim that defendant acted arbitrarily and

in bad faith in representing her against Centerplate focuses on

defendant’s decision to settle her claim rather than continue

with the arbitration. In particular, plaintiff asserts that

witnesses at the arbitration hearing supported her position about

what had happened on January 6, 2007, and that the union

representative at the hearing told her counsel that the hearing

23 was going well. See Pl.’s Opp. Mem. at 5 . Because plaintiff

perceived the arbitration was proceeding favorably, she did not

understand why defendant contacted Rockingham Park about her

returning to work there, or why defendant settled her grievance

before the issue of her reinstatement was arbitrated. See

. She now contends defendant’s decisions both to reach out to

Rockingham Park about the reinstatement issue and to settle her

grievance after learning Rockingham’s position demonstrate its

bad faith and arbitrary conduct in breach of its duty to fairly

represent her.

A union acts arbitrarily only i f , “at the time of [its]

actions, the union’s behavior is so far outside a wide range of

reasonableness as to be irrational.” Miller v . U.S. Postal

Serv.,

(1st Cir. 1993) (citing Air Line Pilots

Ass’n v . O’Neill,

5 , 78 (1991)). A reviewing court

must examine the competence of the union’s representation

objectively, but also must recognize the union’s need for

substantial deference and wide latitude in determining how to

represent its members. See Emmanuel,

(citing

authority). By contrast to the objective standard on which

arbitrariness is evaluated, the questions of whether a union

24 acted in bad faith or discriminatorily are reviewed based on a

subjective standard. See Crider v . Spectrulite Consortium, Inc.,

(7th Cir. 1997).

Although whether the Union’s conduct was discriminatory and whether it was in bad faith must be analyzed separately, the analyses are related. Whereas the arbitrariness analysis looks to the objective adequacy of the Union’s conduct, the discrimination and bad faith analyses look to the subjective motivation of the Union officials.

(citing Trnka v . Local Union N o . 6 8 8 , UAW,

0 , 63

(7th Cir. 1994)).

Plaintiff’s Objection does not clearly delineate the facts

and arguments related to alleged “arbitrariness” from those of

alleged “bad faith.” However, it appears that plaintiff relies

on the following facts to establish arbitrariness.

• Union counsel told plaintiff after the first day of arbitration that it was “going well.” Document n o . 12-23, ¶ 1 2 .

• Union counsel told plaintiff’s attorney that plaintiff had a “good shot” at reinstatement. Document n o . 12-11.5

• Plaintiff had more favorable witnesses to present at day two of the arbitration. Document n o . 12-

5 While many of plaintiff’s documents have not been authenticated and, therefore, justifiably could be disregarded, I have considered them as though they were authenticated since they do not alter the disposition of the pending motion.

25 23, ¶ 12.

Despite this promising start, defendant negotiated a settlement over plaintiff’s objection. Document n o . 12-17.

Defendant agreed to a provision releasing Rockingham Ventures without plaintiff’s consent. Document n o . 12-11.

Defendant did not give plaintiff’s attorney specific case citation to support the position that Rockingham Ventures, owner of the trac k, could bar plaintiff from the track even if were reinstated to employment with Centerplate. Document nos. 1 4 , 1 7 .

Pl.’s Opp. Mem. (document n o . 12) at 5-7.

To support her claim of bad faith, plaintiff relies on the

following allegation:

• “Prior to the arbitration, the defendant expressed hostility to the plaintiff for engaging a private attorney to assist her. (Document n o . 12-6).” Document n o . 12 at 5 , 7 .

• Defendant unilaterally agreed to a settlement. Document n o . 12 at 7 .

• Defendant did not provide legal authorities to plaintiff’s counsel on Rockingham’s authority to bar her or why Rockingham should be released. Document n o . 12 at 6.

• The settlement was without consent. Document n o . 12 at 7 .

Nothing in these allegations intimates, let alone

demonstrates, some irrationality or ill-motive on defendant’s

26 part to support plaintiff’s claims of arbitrariness and bad

faith. The paucity of evidence, case support and convincing

argument by plaintiff is starkly revealed in the face of the

facts and arguments of defendant. Unions are allowed “great

latitude in determining the merits of an employee’s grievance and

the level of effort it will expend to pursue it.” Miller,

2 . The undisputed facts of this case establish that

defendant’s representation was thorough, professional, thoughtful

and free from arbitrariness and bad faith.

Plaintiff had a disciplinary history of use of obscene

gestures, verbal abuse and altercations with managers in front of

patrons. See Document nos. 11-3, ¶ 1 2 ; 11-66 to 11-76; 11-81.

She had previously been banned from Rockingham’s property. See

Document n o . 11-3. She also previously had been given a written

termination warning. See Document n o . 11-57. The incident

precipitating the termination involved an admitted altercation

with a manager in front of patrons. See Document n o . 11-4, ¶ 8 .

She disputed using foul language, see

but some witnesses

said she both used the “F” word and made an obscene gesture. See

Document n o . 11-26. While a less dedicated union might well have

avoided this uphill battle, defendant proceeded with a grievance

27 seeking reinstatement.

The union filed a grievance on plaintiff’s behalf and

pursued it to arbitration. Plaintiff claims that defendant’s

letter of August 2 4 , 2007, see Document n o . 12-6, demonstrates

hostility because the union declined to deal with her attorney,

not her. The letter, however, is not hostile but simply states a

position totally consistent with the law of labor relations,

which gives the union broad discretion in fairly representing its

members. Neither plaintiff nor her attorney had any right to

“run the show.” “An important part of a union’s broad discretion

in handling an employee’s grievance is the right to limit the

role of a grievant’s private attorney. . . . A union has the

right to be the sole representative of its members, and it can

refuse to include private counsel in its handling of a grievance

if it so chooses.” Shufford v . Truck Drivers, Helpers, Taxicab

Drivers,

(D. Md. 1996) (citing Garcia

v . Zenith Elec. Corp,

(7th Cir. 1995) (citing

additional cases)).

The record here demonstrates that defendant reasonably and

rationally exercised its discretion in dealing with plaintiff and

her private counsel. Certainly having its telephone calls

28 ignored when trying to set up a meeting justifies making it clear

to plaintiff that the union gets to run the show under the law.

In addition, defendant did deal with plaintiff’s attorney. It

sought documents and information from him, kept him advised,

discussed the settlement with him and sought input from him about

i t , and tried to accommodate his concerns. Plaintiff’s hostility

argument on this basis is frivolous.

As I found supra, defendant thoroughly investigated

plaintiff’s grievance and prepared for the arbitration

proceedings. The evidence shows that defendant appropriately

handled the arbitration proceedings and reasonably determined it

was best to settle plaintiff’s claims rather than continue to

arbitrate them. The following facts substantiate this

conclusion.

Prior to that arbitration, on September 20th, plaintiff told

defendant’s attorney that she had reason to believe that

Rockingham Ventures would not let her return to the property.

See Document 11-3, ¶ 3 4 . After the first day of arbitration on

October 1 7 , defendant’s attorney discussed with Centerplate’s

attorney the company’s interest in settling the grievance.

See Document n o . 11-4, ¶ 4 2 . After some initial hostility,

29 plaintiff agreed to consider proposing a settlement demand which

would waive her right to reinstatement, promised to discuss it

with her attorney, and agreed to send documents necessary to

compute lost wages. See Document n o . 11-4, ¶ 4 4 . On November

1 9 , Centerplate’s lawyer advised that Rockingham Ventures had

barred plaintiff from the track, so she could not return even if

she were awarded reinstatement. See Document n o . 11-4, ¶ 4 5 .

The union representative confirmed this on November 21st by a

direct telephone conversation with Edward Callahan, president and

general manager of Rockingham Park. See Document n o . 11-3, ¶ 4 0 .

Defendant had good reason to conclude that any reinstatement

award under these circumstances would not get plaintiff’s job

back. See Document n o . 11-3, ¶ 4 1 . The arbitrator had no

authority to order Rockingham to do anything. See Document no

11-4, ¶ 4 6 . Arbitration case law provides ample support for the

conclusion that in these circumstances, where reinstatement is

not an option, an award of back-pay is the proper remedy. See

Def.’s Reply Mem. (document n o . 14) at 7 (citing Burns Int’l

Security Serv.,

(Cox, Arb. 1991) (client’s refusal to

grant security clearance to guard made reinstatement to client’s

facility impossible); First Student Inc.,

(McCurdy,

30 Arb. 2005) (no remedy available for bus driver who was banned

from route by school district); Southern Ocean Transport,

(Wolfson. Arb. 2007) (no remedy for truck driver improperly

banned from client’s property); Wackenhut Corp.,

(Landau, Arb. 2006) (appropriate remedy for wrongful discharge of

employees who are banned from property is back-pay)) 6 .

Defendant tried to report the information on a ban and to

discuss the benefits of settlement and risks of going forward,

but plaintiff got loud and verbally abusive. See Document n o .

11-4, ¶ 47-48. Defendant advised her by letter that it would

deal with her attorney on settlement issues.

¶ 4 8 . Despite

repeated requests for interim wage information, defendant was

forced to estimate the interim wage discount and lost earnings

because of plaintiff’s failure to provide the information. See

Document n o . 11-4, ¶ 49-51. Its estimate is remarkably accurate,

as a subtraction of plaintiff’s 2007 income of $10,224, based on

interim earnings and unemployment compensation (document n o . 11-

9 1 ) , from her 2006 earnings of $19,437 (document n o . 11-90)

reflects a net loss of $9,213, and the union estimated a loss of

6 Copies of these decisions were appended to Def.’s Reply and may be found online at The Bureau of National Affairs, Inc., Labor and Employment Law Library, Labor Arbitration Decisions, www.bna.com/corp/index.

31 $11,000 (document n o . 11-4, ¶ 5 1 ) . After much back and forth,

the union and company arrived at a settlement amount of $10,000,

tax and employment security advantageously allocated at one-third

back wages and two-thirds non-wage.

The settlement was rejected by plaintiff on December 1 7 ,

2007. See Document n o . 11-4, ¶ 5 8 . On January 2 4 , 2008, the

union sent plaintiff’s counsel a thorough review, analysis and

rationale for its conclusion that the settlement was in the best

interest of plaintiff. See Document n o . 12-12. Whether or not

plaintiff or her attorney agree with the analysis or conclusion

is beside the point. The letter clearly shows a sound and fair

analysis and it belies any suggestion that the union acted

arbitrarily or in bad faith. In fact, the union achieved a

settlement in excess of the amount plaintiff could have obtained

in any award for back pay.

Plaintiff makes much of Centerplate’s requirement that

Rockingham be released from any and all claims against it she

might assert. However, the absence of any hint by plaintiff’s

counsel that she had any viable cause of action against

Rockingham demonstrates that she was not giving up anything but

the opportunity for a frivolous suit.

32 In summary, Rockingham’s position cut the legs from under

any worthwhile reinstatement order in arbitration. Defendant

negotiated a very favorable cash settlement, particularly given

the facts of the discharge and plaintiff’s failure to provide

repeatedly requested wage information. Defendant never acted in

a hostile manner despite repeated provocation by plaintiff.

Defendant’s settlement rationale was well supported and

considered.

Finally, a union does not need to obtain plaintiff’s consent

before settling a grievance. See Sanderson v . Ford Motor Co.,

0 2 , 114 (5th Cir. 1973); Caputo v . National Ass’n of

Letter Carriers,

(E.D.N.Y. 1990); Lettis

v . U.S. Postal Service,

8 1 , 197 (E.D.N.Y. 1998).

There is no genuine issue of material fact as to whether the

union’s actions were “so far outside a wide range of

reasonableness as to be irrational.” Airline Pilots Ass’n Int’l,

499 U.S. at 6 7 . Defendant is entitled to summary judgment that

it did not breach any duty when it decided to settle plaintiff’s

claims rather than continue with arbitration. Defendant very

ably fulfilled its duty to fairly represent plaintiff in her

grievance proceedings.

33 Conclusion

Defendant’s motion for summary judgment (document n o . 11) is

granted. The clerk is ordered to enter judgment for the

defendant and close the case.

SO ORDERED.

James R. Muirhead United States Magistrate Judge

Date: September 2 4 , 2009

cc: Scott F. Gleason, Esq. Paul McEachern, Esq.

34