Employment Law Daily Employee’s admission she took birdseed not justification for union to abandon grievance
Thursday, August 25, 2016

Employee’s admission she took birdseed not justification for union to abandon grievance

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, ruled the Seventh Circuit in Rupcich v. United Food and Commercial Workers International Union, Local 881. The appeals court determined that an unwritten side agreement between the employer and union could not shield the union from failing to provide the employee even so much as a Step 1 conference under the parties’ grievance procedure. Misappropriation. A grocery store employee was in a hurry to get home following the end of her shift to care for her sick grandson. In her rush, she wheeled a 25 pound bag of birdseed in a grocery cart past the last cash register without paying for it. The employee’s conduct was totally inadvertent. However, according to her employer, that fact was totally irrelevant. Rather, the employer defined “misappropriation” and theft to be strict liability violations that did not require a showing of intent. As a consequence, the employee was fired from her job of 25 years. While there was no evidence that the misappropriation definition was communicated to the employee, there was evidence that it was communicated to her union. Pointing to the employee’s admission that she had indeed taken the birdseed, the union decided not to dispute her termination in arbitration or even process it through the grievance procedure. She filed a complaint alleging that the union breached its duty of fair representation (DFR) and that the employer breached the relevant collective bargaining agreement. 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 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.” The Seventh Circuit 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.” However, the appeals court determined that the union’s discretion did not empower it to ignore the plain text of the CBA where doing so alters an employee’s fundamental rights. Rather, 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.” Disparate treatment. 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. At this juncture, the union’s case really fell apart. A coworker was terminated for violating the same misappropriation policy as the employee, yet the union took her grievance to an arbitrator. The coworker asserted that her failure to pay for flowers was inadvertent, the same defense asserted by the employee. In many ways, the appeals court found that the employee’s case was stronger than the coworker’s. Thus, it agreed that a reasonable juror could conclude that the union’s behavior was arbitrary. Treating similar situations differently without adequate explanation is the very embodiment of arbitrary conduct, explained the court.

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