United States District Court, W.D. Missouri, Western Division
MICHELLE M. STRINGFIELD, Plaintiff,
UNITED FOOD & COMMERICAL WORKERS DISTRICT UNION LOCAL TWO, Defendant.
FERNANDO J. GAITAN, JR., United States District Judge
pending before the Court is Defendant United Food &
Commercial Workers District Union Local Two
(“Union's) Motion and Amended Motion for Summary
Judgment (Docs. # 27, 29) and Plaintiff's Motion for
Summary Judgment (Doc. # 33).
was hired by Cosentino in May 2010 as a deli worker at Store
#105. Plaintiff worked in the deli department up until her
termination in October 2014. In connection with her
employment, plaintiff was represented by a labor union, UFCW
Local 2. Cosentino and UFCW Local 2 are signatories to a
Collective Bargaining Agreement with an effective date of
March 3, 2014.
had a history while working at Cosentino of employment
counseling with progressive consequences ranging from verbal
warnings to suspensions. Cosentino had given plaintiff at
least one prior warning for leaving a shift early on
September 12, 2010. Plaintiff has also received disciplinary
counseling for other issues, such as eating in the food prep
area, handling sales transactions for herself and her family
members and insubordination. On October 15, 2014, plaintiff
received a Final Written Warning for violation of the
attendance policy. “[E]xcessive absenteeism including
leaving work early” on four occasions (July 12, 2014 -
October 8, 2014). The form stated: “Michelle is
expected to work entire work schedule and as a shift
supervisor lead by example and appropriately support Dept.
Mgr.” The form also notes that there was previous
counseling regarding this issue:
Jan. 4, 2014 Written = Insubordination & job performance
Jan. 13, 2014 Suspension = Sales Transaction w/ family member
form indicates that the employee has been told that further
incidents or violations will result in termination. Under
employee signature it states: “Refused to Sign.”
Immediately after the meeting, plaintiff returned to the Deli
area, gathered her belongings, called her father and left the
store. Plaintiff never informed any managers that she was
sick and needed to leave. Plaintiff only told a co-worker in
the Deli area that she was upset and needed to leave.
CBA, Article XIV provides that “the Employer may
discharge an employee for any job related reason, provided
the Employer is correct on the facts.” Cosentino's
attendance policy provides that an employee must provide
notice to the Department Manager if he or she needs to leave
work early. It also states that an employee may be terminated
for leaving work without managerial authorization or for an
or someone on plaintiff's behalf contacted Union
Representative Michael Frommer the next day regarding the
October 15, 2014 meeting. Mr. Frommer went to the store to
determine plaintiff's employment status. Mr. Frommer was
told to contact the Human Resources director. Mr. Frommer
attempted to contact the HR director several times between
October 16, 2014 and November 3, 2014, but received no
response. Mr. Frommer finally spoke with the HR Director on
November 4, 2014 and learned that Cosentino considered
plaintiff's employment to be terminated. On November 10,
2014, Mr. Frommer filed a grievance with Cosentino. Cosentino
responded that the company considered the grievance to be
untimely. Mr. Frommer responded by letter dated December 9,
2014 explaining that the Union had made multiple attempts to
contact him to determine what happened and to discover the
status of plaintiff's employment. The letter stated that
if Cosentino refused to meet and discuss the matter, then the
December 9, 2014 letter should be considered as a demand for
arbitration. Cosentino agreed to meet with the Union in an
attempt to resolve the matter. The meeting was originally
scheduled for December 23, 2014, but had to be rescheduled to
January 8, 2015, because plaintiff was not feeling well
shortly before the meeting began. At the meeting on January
8, 2015, plaintiff had an opportunity to speak to
Cosentino's representatives. Cosentino however refused to
reinstate plaintiff's employment. The Union then
investigated whether to take plaintiff's grievance to
arbitration. On January 22, 2015, Mr. Frommer sent plaintiff
a letter stating that he had been trying to get in contact
with her and wanted to meet regarding the grievance. Mr.
Frommer and the Union's attorney, Scott Brown, met with
plaintiff on January 27, 2015 to discuss the grievance. At
the meeting, the parties discussed the issues, why plaintiff
was terminated, the dates she left early without
authorization, other employees who had also left work early
and other incidents regarding plaintiff's work
environment. On January 28, 2015, Scott Brown sent a letter
to Cosentino requesting information from the company about
plaintiff's employment file and her termination.
Cosentino provided the Union with plaintiff's employment
file. After investigating plaintiff's termination through
meetings with Cosentino, meetings with plaintiff, interviews
of store employees, meeting with the Union's attorney and
reviewing documents from Cosentino, the Union determined that
it could not prevail at an arbitration.
moving party is entitled to summary judgment on a claim only
if there is a showing 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).
“[T]he substantive law will identify which facts are
material. Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986). If the moving party meets this
requirement, the burden shifts to the non-moving party to
“set forth specific facts showing that there is a
genuine issue for trial." Anderson, 477 U.S.
242, 248 (1986). In Matsushita Electric Industrial Co.
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986), the Court emphasized that the
party opposing summary judgment “must do more than
simply show that there is some metaphysical doubt as to the
material facts" in order to establish a genuine issue of
fact sufficient to warrant trial. In reviewing a motion for
summary judgment, the court must view the evidence in the
light most favorable to the non-moving party, giving that
party the benefit of all inferences that may be reasonably
drawn from the evidence. Matsushia, 475 U.S. 574,
588; Tyler v. Harper, 744 F.2d 653, 655 (8th Cir.
1984), cert. denied, 470 U.S. 1057 (1985).
Union's Motion and Amended Motion for Summary
Complaint, when asked to describe her claim, plaintiff
stated: “unfair labor practice by labor organization to
restrain employer [sic] in the exercise of the FMLA rights
guaranteed.” When asked to state the relief requested,
plaintiff stated she wanted the Court to: “find Union
in violation of its duty of fair representation by violation
of arbitrary, discriminatory and in bad faith asserting my
rights to arbitration under FMLA guaranteed rights for
unlawful termination.” (Plaintiff's Complaint, Doc.
Union states that a breach of the duty of fair representation
claim against the Union is a hybrid claim, cognizable under
§301 of the Labor Management Act of 1947, 29 U.S.C.
Section 301 confers federal jurisdiction over “[s]uits
for violation of contracts between an employer and a labor
organization representing employees in an industry affecting
commerce.” 29 U.S.C. § 185; Hines v. Anchor
Motor Freight, Inc., 424 U.S. 554, 561-62 (1976). To
prevail in a Section 301 hybrid action against a union and an
employer, a plaintiff “must prove both that the union
breached its duty of fair representation and that the
employer breached the collective bargaining agreement.”
Scott v.United Auto, 242 F.3d 837, 839
(8th Cir.2001). In other words, an employee cannot
recover against either party unless the employee proves his
or her case against both parties. Id.
A union breaches its duty of fair representation when the
union's conduct is “‘arbitrary,
discriminatory, or in bad faith.'” Smith v.
United Parcel Serv., Inc., 96 F.3d 1066, 1068
(8th Cir. 1996)(quoting Vaca v. Sipes,
386 U.S. 171, 190 (1967)). “Mere negligence, poor
judgment, or ineptitude on the part of the union is
insufficient to establish a breach of the duty of fair
representation.” Id. (internal quotations
omitted). Where a union has acted in good faith, the
union's action or inaction does not violate the duty of
fair representation unless “the union's behavior is
so far outside a wide range of reasonableness as to be
irrational.” Id. at 1068-69 (internal
quotations omitted). To show bad faith, a plaintiff must
offer “evidence of fraud, deceitful action or dishonest
conduct.” Id. at 1069 (internal quotations
Erler v. Graham Packaging Co., No.
4:14-CV-00931-JCH, 2015 WL 4723681, *3 (E.D.Mo. Aug. 10,
2015). In DelCostello v. Int'l Bhd. Of
Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476
(1983), the Court stated that a hybrid action is really
“two causes of action. . .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.”
Id. at 164-65.
Union argues that it did not breach its duty of fair
representation to plaintiff and that plaintiff has failed to
show that it acted in an arbitrary manner, in bad faith or
that it in any way discriminated against her. When plaintiff
was questioned in her deposition she stated:
Q. It's a yes or no question. Is the timeliness issue -
A. Yes, yes.
Q. Is it the only basis on which you're saying the union
breached its duty of fair representation to you?
A. I'm going to say yes.
(Plaintiff's Depo. p. 69).
Q. In your view, how did the union act arbitrarily?
A. They didn't do what they were -they didn't do what