a beautician at Andrews Air Force Base on May 19, 1995. Plaintiff
rejected this offer.
On June 22, 1995, plaintiff was advised that the union had
instructed the Director of Member Services and the union
representative to arbitrate her case. On June 28, 1995, the union
filed a Demand for Arbitration with the American Arbitration
Association. In August of 1995, the union secured an offer of
reinstatement for plaintiff to her former position at Boiling Air
Force Base and back pay for her three-day suspension and for the
period between her termination and the date on which she was
offered substitute employment ("settlement offer"). Plaintiff did
not accept the offer.
On September 20, 1995, Michael R. Earman, of the union,
provided plaintiff with a written explanation of the union's
position that arbitration of her grievance was not merited. On
October 3, 1995, plaintiff's counsel requested an extension of
time to respond to the settlement offer. On November 2, 1995, the
August 1995 settlement offer was renewed and held open until
November 15, 1995. Plaintiff again chose not to accept the offer.
Plaintiff filed the instant complaint on January 17, 1996. She
brings this "hybrid" action pursuant to § 301 of the Labor
Management Relations Act (" § 301"), 29 U.S.C. § 185.*fn2 She
alleges wrongful discharge by defendant Morena, her former
employer, and breach of the duty of fair representation on the
part of Local 400. Plaintiff also contends that conduct taken by
defendant Morena supports two pendent state law claims for
A. § 301 of the Labor Management Relations Act
The circumstances under which an employee may litigate an
alleged breach of contract by an employer where the relationship
between the employer and employee is governed by a collective
bargaining agreement are limited. "Because most
collective-bargaining agreements accord finality to grievance or
arbitration procedures established by the collective-bargaining
agreement, an employee normally cannot bring a § 301 action
against an employer unless he can show that the union breached
its duty of fair representation in its handling of his
grievance." Chauffeurs, Teamsters and Helpers, Local 391 v.
Terry, 494 U.S. 558, 564, 110 S.Ct. 1339, 108 L.Ed.2d 519
(1990). Furthermore, any pendent claims by such an employee are
preempted by § 301 if the application of state law requires the
interpretation of a collective bargaining agreement. Lingle v.
Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413, 108 S.Ct.
1877, 100 L.Ed.2d 410 (1988).
In determining whether an employee has asserted a viable § 301
action, the Court must initially determine the threshold issue of
whether a bargaining representative has breached its duty of fair
representation. The union's status as its member's exclusive
bargaining agent includes an obligation "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." Vaca v. Sipes, 386 U.S. 171, 177,
87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Accordingly, a breach of
this duty of fair representation occurs "only when a union's
conduct toward a member of the collective bargaining unit is
arbitrary, discriminatory, or in bad faith." Vaca, 386 U.S. at
190, 87 S.Ct. 903.
"Because . . . the very nature of collective bargaining
requires an agent to
balance interests that quite often are contradictory, see, e.g.,
Humphrey v. Moore, 375 U.S. 335, 349-50, 84 S.Ct. 363, 11
L.Ed.2d 370 (1964), it is clear that `a wide range of
reasonableness must be allowed a statutory bargaining
representative in serving the unit it represents.'" Caudle v.
Pan American World Airways, Inc., 676 F. Supp. 314, 317 (D.D.C.
1987) (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73
S.Ct. 681, 97 L.Ed. 1048 (1953)). "[A] union does not breach its
duty of fair representation, and thereby open up a suit by the
employee for breach of contract, merely because it settle[s][a]
grievance short of arbitration." Vaca, 386 U.S. at 192, 87
S.Ct. 903. Furthermore, the union's settlement of a grievance
does not constitute a breach of the duty of fair representation
simply because the union does not obtain the full relief sought
or because the affected union member is not satisfied with the
terms of the settlement. Shane v. Greyhound Lines, Inc.,
868 F.2d 1057, 1061 (9th Cir. 1989) (union did not breach its duty of
fair representation when it accepted "a settlement which gave the
employees reinstatement, back pay (less one month), and a return
to seniority. . . ."); Scott v. Machinists Automotive Trades
Dist. Lodge No. 190 of N. Cal., 827 F.2d 589, 593 (9th Cir.
1987) (union did not breach its duty of fair representation when
it settled a grievance for back pay less eight days pay because
it thought that was a reasonable settlement); Dukes v. Bethlehem
Steel Corp., 677 F. Supp. 390, 397 (D.Md. 1987) (union did not
breach duty of fair representation when it accepted what
plaintiff considered to be "an unreasonably low settlement
figure"); Ross v. Runyon, 156 F.R.D. 150, 156 (S.D.Tex. 1994)
(union did not breach duty of fair representation by settling
discharge grievance by agreeing to 30-day suspension); Slavich
v. UAW, Local 551, 1991 WL 353368 (N.D.Ill. 1991) (union did not
breach duty of fair representation when it settled a discharge
grievance waiving back pay for the period employee received
partial unemployment compensation and agreeing to a new 12-month
probationary period). Nor does mere negligence does constitute a
breach of the duty of fair representation. See Barr v. United
Parcel Service, 868 F.2d 36, 43 (2d Cir. 1989); Scott, 827
F.2d at 594; Ruzicka v. General Motors Corp., 649 F.2d 1207,
1212 (6th Cir. 1981); Watkins v. Communications Workers of
America, Local 2336, 736 F. Supp. 1156, 1160 (D.D.C. 1990). Cf.
International Brotherhood of Teamsters v. NLRB, 587 F.2d 1176,
1181 (D.C.Cir. 1978). As indicated above, the union does not
breach its duty of fair representation unless its conduct is
arbitrary, discriminatory, or in bad faith. Vaca, 386 U.S. at
190, 87 S.Ct. 903.
B. Summary Judgment Standard
Summary judgment may be granted only if the pleadings and
evidence "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); Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In
considering a motion for summary judgment, all evidence and
inferences must be viewed in a fight most favorable to the
non-moving party. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986). Summary judgment cannot be granted "if the evidence is
such that a reasonable jury could return a verdict for the
non-moving party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The Court must be wary of granting summary judgment in actions
asserting a breach of the duty of fair representation because
such decisions generally require the Court to probe the intent
and state of mind of the bargaining agent to determine whether
its actions were discriminatory, arbitrary, or in bad faith.
Caudle, 676 F. Supp. at 318. Nonetheless, in order to survive a
motion for summary judgment, plaintiff must offer concrete
evidence regarding the bargaining agent's
state of mind and cannot simply rely on conclusory allegations
regarding intent. Id. Furthermore, when relying on the result
of the bargaining agent's negotiations to establish a breach of
the duty of fair representation rather than upon any direct
evidence of hostility or arbitrariness, the bargaining agent's
wide discretion in conducting negotiations must be considered.
"Any substantive examination of a union's performance . . . must
be highly deferential, recognizing the wide latitude that
negotiators need for the effective performance of their
bargaining responsibilities." Air Line Pilots Ass'n, Int'l v.
O'Neill, 499 U.S. 65, 78, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991).
"[T]he final product of the bargaining process may constitute
evidence of a breach of duty only if it can be fairly
characterized as so far outside a wide range of reasonableness
that it is wholly irrational or arbitrary." Id. (internal
citation and quotation omitted). Accordingly, where plaintiff has
failed to offer concrete evidence of the necessary state of mind
by the bargaining agent, summary judgment is appropriate.
A. § 301 Claim — Breach of the Duty of Fair Representation by
Plaintiff asserts that Local 400 breached its duty of fair
representation by failing to take her claim to the only stage of
the grievance procedure — arbitration — which she contends would
have fully protected her rights against her employer, defendant
Morena. Although conceding that an employee has no absolute right
to arbitration, plaintiff asserts that Local 400 refused to take
her claim to arbitration because it was involved in a conspiracy
with defendant Morena to prevent her from successfully
challenging her termination rather than because of any reason
consistent with its duty of fair representation.