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Labor Law - Federal

Jeffrey D. Hanslick, Esquire
Traci Daffer Martin, Esquire
Benjamin A. McMillen, Esquire 

Eighth Circuit affirms district court's grant of summary judgment in favor of employer and union, holding that the union did not act arbitrarily in declining to take the employee's grievance to arbitration.  Rogers v. Southwestern Bell Telephone Co., No. 10-1171, 2011 WL 264302 (8th Cir. January 28, 2011). 
Southwestern Bell Telephone Company ("Southwestern Bell") terminated the employment of Plaintiff, cable splicing technician Brook Rogers, for allegedly stealing company property in violation of Southwestern Bell's Code of Business Conduct.  Rogers subsequently filed a grievance with the local branch of his union, Communication Workers of America ("CWA"), seeking to challenge his termination and to appeal the company's denial of his request for severance pay.  CWA responded by investigating Rogers' claims, conducting interviews, requesting documents, and eventually meeting with Southwestern Bell to discuss Rogers' situation.  After Southwestern Bell denied Rogers' grievance, CWA (at Rogers' request) further pursued Rogers' claims, concluding ultimately that neither was likely to succeed.  Regardless, CWA continued to work on Rogers' behalf, negotiating a settlement agreement with Southwestern Bell.  However, Rogers rejected the settlement offer and went on to appeal the CWA's decision not to recommend his claims to arbitration.  After exhausting CWA's appellate process, Rogers filed suit in Arkansas state court against both Southwestern Bell and CWA.  The complaint alleged Southwestern Bell unlawfully terminated him and wrongfully withheld severance pay and that CWA breached its duty of fair representation.  After removing the case to federal district court, the defendants filed a motion for summary judgment, which the court granted.
Held: Affirmed.  In affirming the district court's grant of summary judgment, the Eighth Circuit first articulated the basic rule in evaluating "hybrid" claims, i.e. that to succeed against either defendant, Rogers had to establish: (1) CWA breached its duty of fair representation and (2) Southwestern Bell violated the collective bargaining agreement by terminating his employment.  As Rogers had not raised a question of material fact on the first prong, the court concluded that both defendants were entitled to summary judgment.  In doing so, the court observed that Rogers had not offered sufficient evidence to demonstrate that CWA made a decision related to his grievance that was "arbitrary, discriminatory, or in bad faith."  Instead, the court opined that - in light of CWA's thorough investigation and Rogers' extensive disciplinary record - the decision not to take his case to arbitration was not unreasonable.  The court also rejected Rogers' claim that CWA acted arbitrarily because the procedure it used to review his grievance was inadequate.  The court quickly identified that the crux of this claim was that Rogers simply disagreed with the CWA's decision and, without also offering evidence that the grievance-evaluation process was somehow "perfunctory," Rogers failed to meet his burden.  The court next rejected Rogers' allegation that CWA violated its duty by deciding to consolidate his claims (unlawful termination and wrongfully withheld severance pay) instead of pursuing each independently.  Again, the court concluded that CWA had not acted irrationally by deciding that the two claims turned on the same issues and, thus, were likely to reach the same outcome.  In addition, the court was not persuaded by Rogers' argument that CWA acted in bad faith by failing to timely notify him of the consolidation of his claims.  The court opined that even if that allegation were true, a union's failure to notify a grievant, without more, does not amount to a breach of its duty of fair representation.  As such, the court affirmed the district court's grant of summary judgment on each of Rogers' complaints.

The Missouri Bar Courts Bulletin, 11-Mar