NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 19-3516 ______________

SANDRA CLOWNEY, Appellant

v.

URS/AECOM, URS FEDERAL SERVICES; I.A.M. INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS; IAMAW DISTRICT LODGE 1; DISTRICT LODGE 1; LOCAL 1717 ______________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 3-17-cv-00223) District Judge: Honorable Malachy E. Mannion ______________

Argued: December 10, 2020

Before: MCKEE, PORTER, and FISHER, Circuit Judges.

(Filed: June 3, 2021) ______________

Neil F. MacDonald Durkin MacDonald 536 East Drinker Street Dunmore, PA 18512 Gerard J. Martillotti [ARGUED] Jerry Martillotti & Associates 4221 Ridge Avenue Philadelphia, PA 19129

Counsel for Appellant

John M. Nolan, III Jackson Lewis 1601 Cherry Street Philadelphia, PA 19102

Marjorie N. Kaye, Jr. [ARGUED] Jackson Lewis 666 Third Avenue New York, NY 10017

Counsel for Appellee URS/AECOM, URS Federal Services

John R. Bielski [ARGUED] Willig Williams & Davidson 1845 Walnut Street Philadelphia, PA 19103

Counsel for Appellees International Association of Machinists and Aerospace Workers and IAMAW District Lodge 1

Linda M. Martin [ARGUED] Willig Williams & Davidson 1845 Walnut Street Philadelphia, PA 19103

Counsel for Appellees District Lodge 1 and Local 1717

OPINION ∗

∗ This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent.

2 PORTER, Circuit Judge.

Sandra Clowney appeals the District Court’s order granting summary judgment to

her employer and union. Clowney claims that her employer, AECOM and URS Federal

Services, Inc. (“URS”), violated its collective-bargaining agreement by not rehiring her

after a company-wide layoff. She also claims that the union 1 violated its duty of fair

representation by (1) not pursuing her claim against URS, and (2) not including her in a

settlement involving a different layoff. The record does not support her claims. The

District Court properly granted summary judgment for the company and the union.

I2

We assume the parties’ familiarity with the facts of this case and the issues for

review. We review the District Court’s grant of summary judgment de novo. Podobnik v.

U.S. Postal Serv.,

(3d Cir. 2005). “[S]ummary judgment is appropriate

only where the parties have established that there is no genuine dispute of material fact

and are ‘entitled to judgment as a matter of law.’”

(quoting Fed. R. Civ. P. 56(a)). We

“view the facts in the light most favorable to the non-moving party,” and we “make all

reasonable inferences in that party’s favor.”

II

Clowney sued URS for breach of a collective-bargaining agreement under

Section 301 of the Labor Management Relations Act. See

. Typically, an

1 The union consists of the International Association of Machinists and Aerospace Workers, District Lodge 1, and Local 1717. 2 The District Court had jurisdiction under

. See Hines v. Anchor Motor Freight, Inc.,

(1976). We have jurisdiction under

. 3 employee must exhaust the collective-bargaining agreement’s arbitration procedures

before suing in federal court. DelCostello v. Int’l Brotherhood of Teamsters,

(1983). But when an employee claims wrongdoing by the union itself, she can

bring a “hybrid” suit against both the employer and the union.

. We treat such

suits as two separate causes of action: the claim against the employer rests on Section 301

for breach of the collective-bargaining agreement, and the claim against the union is

implied under the National Labor Relations Act for breach of the union’s duty of fair

representation.

To recover, Clowney must prevail on both claims. See

.

A union breaches its duty of fair representation only when its conduct toward one

of its members is “arbitrary, discriminatory, or in bad faith.” Riley v. Letter Carriers

Local No. 380,

(3d Cir. 1981) (internal quotation marks omitted)

(quoting Vaca v. Sipes,

(1967)). When an employee files a grievance

against an employer, “a union may not arbitrarily ignore a meritorious grievance or

process it in perfunctory fashion.”

(internal quotation marks omitted) (quoting Vaca,

). “Perfunctory” means something more than “[m]ere ineptitude or

negligence,” and “[t]he fact that trained counsel would have avoided the error or pursued

a different strategy is not enough.”

The employee must show “actual bad faith or

arbitrary conduct,”

and cannot rely on “bare assertions,” Masy v. N.J. Transit Rail

Operations, Inc.,

, 328 (3d Cir. 1986).

Clowney makes two arguments in support of her claim that the union breached its

duty of fair representation. First, she says the union did not fairly represent her when it

asked her to produce evidence supporting her grievance against URS before the union

4 filed the grievance on her behalf. Second, she argues that the union did not fairly

represent her when it excluded her from a labor settlement. Both arguments fail.

A

Clowney first argues that the union unfairly represented her in her grievance

against URS. Her underlying grievance is that URS breached the collective-bargaining

agreement by not recalling her as an equipment cleaner following a company-wide layoff

in April 2013. She claims that the union breached its duty of fair representation by

unreasonably demanding evidence of her former position as an equipment cleaner. We

disagree.

Clowney has not shown that the union exhibited “actual bad faith or arbitrary

conduct.” Riley,

. She worked as an equipment cleaner for Lockheed

Martin, then as an ET-2 and ET-3 for Defense Services, and finally as an ET-3 for URS.

It is not obvious that URS would know of Clowney’s prior work as an equipment cleaner

for Lockheed Martin. The record contains only one document showing that URS could

have known of her prior work: a January 2012 form that Clowney herself filled out.

Because of the limited evidence, the union requested that Clowney produce some proof

of her former work as an equipment cleaner. She could not, and still has not. If “[t]he fact

that trained counsel would have avoided the error or pursued a different strategy is not

enough,” much less is a request for evidence supporting a key fact of Clowney’s

grievance.

Clowney’s inability to produce the requested evidence does not mean the

union unreasonably asked for it. Regardless, the union filed her grievance against URS

5 anyway. Thus, “there is nothing to indicate that the Union has ignored [her] grievances

because of bad faith.” Masy, 790 F.2d at 328.

B

Clowney’s second argument is that the union unfairly represented her by failing to

include her in an arbitration settlement. The arbitration concerned reassignment of ET-2s

involved in a September 2012 layoff. Under the collective-bargaining agreement, URS

could require testing for employees trying to bump into the ET-2 cable-shop position, but

it could not require testing for employees being reassigned to that position. URS had

inappropriately required testing of the reassigned ET-2s, which led to the settlement

agreement. Clowney was trying to bump (not reassign) into the ET-2 cabling position, so

URS could properly require that she pass a cabling test. Clowney thus lacks direct

evidence that she was unfairly excluded from the settlement.

Absent direct evidence, Clowney urges us to infer that she was unfairly excluded

by pointing to other employees who were allegedly similarly situated to herself but were

included in the settlement. This argument is also without merit. All the affidavits

Clowney submitted are from employees who were ET-2s at the time of the September

2012 layoff, not ET-3s. Clowney was neither a part of the 2012 layoffs, nor was she an

ET-2 at the time of her layoff in 2013. She was not similarly situated as the other

employees included in the settlement.

Clowney points to one employee who was laid off with her in 2013 as an ET-3 and

was included in the settlement. However, she has adduced no evidence showing that this

employee was not part of the 2012 layoffs. In other words, Clowney has failed to provide

6 evidence of anyone who was included in the settlement agreement who should not have

been. Without that evidence, we cannot infer that Clowney was unfairly excluded from

the settlement agreement. Clowney must show that the union demonstrated “actual bad

faith or arbitrary conduct” in excluding her from the settlement. Riley,

.

She has shown neither, so her fair-representation claim fails.

* * *

Clowney argues that her union breached its duty of fair representation by not

standing up for her in a grievance proceeding and by excluding her from an arbitration

settlement. She lacks sufficient evidence supporting her claims. Finding no dispute of

material fact, we will affirm the District Court’s grant of summary judgment. 3

3 Judge McKee does not think that summary judgment was appropriate because he believes there are genuine issues of material fact. He believes that Clowney identified at least one employee, Keith Labaty, who was similarly situated to Clowney and was included in a settlement Clowney was excluded from. He also believes there are sufficient questions surrounding URS’s handling of Michael Fink to survive summary judgment. Facts surrounding Fink were not disputed. 7