By Ronald Miller, J.D. A reasonable juror could determine that a union’s actions in abandoning a member’s grievance because she admitted taking a bag of birdseed without paying for it were arbitrary and outside the "wide range of reasonableness" afforded unions in the grievance process, the Seventh Circuit concluded. Accordingly, the appeals court reversed summary judgment in favor of the union and an employer on her claims against them for breach of the duty of fair representation and breach of a collective bargaining agreement, respectively (Rupcich v. United Food and Commercial Workers International Union, Local 881, August 17, 2016, Kanne, M.). "Misappropriation." The plaintiff, a grocery store employee, was fired from her job of 25 years after she wheeled a 25 pound bag of birdseed in a grocery cart past the last cash register without paying for it. She claimed that the incident occurred because she was in a rush to get home to tend to her sick grandson following the end of her shift. From the employer’s point of view, her intent was irrelevant because it claimed to define "misappropriation" and theft to be strict liability violations that did not require a showing of intent. While there was no evidence that the definition was communicated to the employee, there was evidence that it was communicated to her union. The union decided not to dispute her termination in arbitration or even process it through the grievance procedure. The employee filed this complaint alleging that the union breached its duty of fair representation (DFR) and that the employer breached the relevant collective bargaining agreement. The parties cross-moved for summary judgment. The district court granted the union’s and employer’s motions for summary judgment on the breach of DFR claim and breach of contract claim, respectively. On appeal, the employee argued that the district court erred in granting summary judgment in the union’s favor on the DFR claim because it acted arbitrarily in failing to follow the CBA’s grievance procedure and in declining to pursue her grievance to arbitration. Second, she asserted that the district court erred in granting summary judgment to the employer and declining to grant her summary judgment on the breach-of-contract claim in light of the undisputed evidence that she accidentally kept the birdseed in her cart when she left her shift to tend to a family emergency. Duty of fair representation. To prevail against either the employer or the union, the employee was required to not only show that her discharge was contrary to the contract but also to demonstrate a breach of duty by the union. Here, the employee argued that the union’s actions in her case were arbitrary and in bad faith, but not discriminatory. The Seventh Circuit analyzed the union’s actions under those two elements, keeping in mind that the employee need only proffer evidence supporting at least one of these elements" to survive summary judgment. Arbitrary. The Supreme Court has held that a "union’s actions are arbitrary only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a wide range of reasonableness, as to be irrational." The employee had to prove: (1) that her "position is [not just] as plausible as the union’s, but to show that the union’s position could eventually be deemed not even colorable," and (2) that she "was actually harmed by the union’s actions," that is, she had to demonstrate "the outcome … would probably have been different but for the union’s activities." As an initial matter, the appeals court rejected the union’s contention that the "broad authority" granted to unions in the handling of grievance matters is absolute. Rather, the court pointed out that even "a wide range of reasonableness" has bounds, and in this case, a reasonable juror could find the union exceeded them in two ways. There was sufficient evidence for a reasonable juror to find that the union: (1) ignored the plain language of the CBA’s grievance policy and the employee’s contractual rights in processing her grievance, and (2) handled a "substantively similar grievance differently from" the employee’s. Moreover, the employee offered enough evidence for a reasonable juror to conclude that she may have kept her job had the union processed her grievance in accordance with the procedure and pursued her claim in arbitration. Side agreement. Under the CBA, the employee was entitled to a Step 1 conference. She did not receive one. The union argued that it did not need to do so because of a "long-standing practice of bypassing Step 1 in cases of termination." While the union was correct in asserting that unions are afforded considerable discretion in handling grievance matters, that discretion did not empower it to ignore the plain text of the CBA where doing so alters an employee’s fundamental rights. Had the union wanted to change its grievance procedure to reflect its "long-standing agreement" with the employer, it could have amended the CBA. There was no evidence produced of such a written agreement. Rather, looking to the Second Circuit’s ruling in Lewis v. Tuscan Dairy Farms, Inc., the Seventh Circuit concluded that this side arrangement, which purported to remove contractual avenues of review for grievances at the union’s whim, was the type of side arrangement that "contradicts fundamental terms of a ratified collective bargaining contract." Thus, a jury could reasonably conclude that using such a side arrangement when processing the employee’s grievance was "so far outside a wide range of reasonableness, as to be irrational." The employee also argued that the union acted arbitrarily toward her in declining to pursue her grievance to arbitration when it had taken a substantively similar grievance to arbitration. The appeals court agreed that a reasonable juror could conclude that this behavior was arbitrary. Treating similar situations differently without adequate explanation is the very embodiment of arbitrary conduct. Here, the employee presented evidence that a coworker was terminated in May 2008 for violating the same misappropriation policy, but the union took her grievance to arbitration. Causation. Finally, turning to causation, the appeals court ruled that a reasonable juror could find on the record that had the union followed its CBA-mandated grievance procedure and proceeded to arbitration, the employee would have probably prevailed in getting her job back. The court observed that it could easily dispense with the proposition that the employee was terminated pursuant to a reasonable rule related to store operations. It pointed out that there was more than enough evidence for a jury to conclude that the employer’s misappropriation policy was anything but reasonable. An employee could violate the policy without intending to take a product without paying for it. However, the policy itself did not provide the employee with notice of this non-intent-based definition of misappropriation. Moreover, the employer had another undisclosed definition of what it deemed to be "theft," which also did not include intent. Thus, the record demonstrated that a reasonable juror could find that the union breached its duty of fair representation to the employee by acting arbitrarily.
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