By Ronald Miller, J.D. A hybrid Section 301 suit cannot properly be used to challenge a union’s conduct that, though obstructive, did not contribute to employees’ failure to exhaust their contractual remedies regarding employer conduct, ruled the Fourth Circuit. Although the employees alleged that the union breached its duty of fair representation by failing to inform them of the employer’s settlement offer, which included reinstatement, regarding their improper termination, the appeals court determined that there must be some causal nexus between a union’s breach of its duty of fair representation and an employee’s failure to exhaust contractual remedies (Groves v. Communications Workers of America, March 10, 2016, Diaz, A.). Two employees sued their employer and union alleging that the employer breached a collective bargaining agreement by terminating their employment and that the union breached its duty of fair representation by failing to inform them of a settlement offer for that termination. The employees worked as retail consultants and were members of a bargaining unit. The CBA required an aggrieved employee to file a grievance in writing within 45 days. It also provided that failure to submit a grievance pursuant to the CBA constituted a waiver by the employee and union. Settlement offer. Both employees attended orientation and one acknowledged receiving a copy of the CBA. The employees were fired within days of each other for failing to meet sales goals after receiving previous disciplinary warnings. Neither contacted the union about the earlier warnings, or about their terminations, and neither filed a grievance. On August 22, 2012, the employer’s executive director of labor relations emailed the union’s administrative director, to explain that the employer discovered that the sales reports that had led to the termination of 16 employees, including the plaintiffs, were flawed. The employer asked the union to reach out to the affected employees to let them know that it was offering them a settlement of either $2,500 and reinstatement, or $5,000 without reinstatement. No communication. There was no attempt made to contact the employees because they had not filed grievances or otherwise communicated with the union. The employees later learned of the settlement offers independently and, when they contacted the union, they were told only about the $5,000 offer without reinstatement. Both employees expressed a preference for reinstatement and a desire to file a grievance. They later sued the employer and union and in March 2013, the employees settled with the employer and were reinstated to their former positions. With respect to their action against the union, the employees moved for partial summary judgment, while the union moved for summary judgment. The district court granted the union’s motion for summary judgment because it had not prevented the employees from exhausting their claims under the CBA. This appeal followed. Obstructive conduct. The central question raised by this appeal was whether a hybrid Sec. 301 suit can properly be used to challenge union conduct that, though obstructive, did not contribute to the employees’ failure to exhaust their contractual remedies for the employer’s conduct. The hybrid Sec. 301 action exists to avoid the “unacceptable injustice” that would occur if an employee were required to exhaust his contractual remedies even though the union representing him in the grievance/arbitration procedure acted in a discriminatory, arbitrary, or perfunctory fashion so as to breach its duty of fair representation. Employees failed to exhaust contractual remedies. Consistent with the rulings of its sister circuits, the Fourth Circuit held that a hybrid Sec. 301 claim requires an allegation that the union’s breach of its duty of fair representation played some role in the employee’s failure to exhaust his contractual remedies. Here, the employees did not allege that the union’s conduct prevented them from grieving their terminations under the CBA. Moreover, because they did not file a grievance with the union, it did not know that they were terminated—and therefore did not have an opportunity to discover that the employer’s data were flawed—until after the contractual period for filing a grievance had passed. While the union’s failure to contact the employees regarding the settlement offers was irresponsible and prevented them from accepting the employer’s original reinstatement offer, because they waived their right to grieve, they were not entitled to that offer under the CBA, and the Union’s conduct had nothing to do with their failure to vindicate their rights through the contractually designated procedures. Thus, the judgment of the district court was affirmed.
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