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Stringfield v. United Food & Commerical Workers District Union Local Two

United States District Court, W.D. Missouri, Western Division

September 6, 2017



          FERNANDO J. GAITAN, JR., United States District Judge

         Currently 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).

         I. BACKGROUND

         Plaintiff 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.

         Plaintiff 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 & herself.

         The 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.

         The 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 unreported absence.

         Plaintiff 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.

         II. STANDARD

         A 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).


         A. Union's Motion and Amended Motion for Summary Judgment[1]

         In her 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. # 6).

         The 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. § 185.

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 omitted).

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.

         The 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 they ...

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