Guerra v. Comm Workers of Amer ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-20067
_____________________
ROSALINDA GUERRA; ARTHUR R. MARTINEZ,
Plaintiffs-Appellants,
and
DAVID R. NEWMAN,
Plaintiff,
versus
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO; CWA LOCAL UNION 6132;
CWA DISTRICT 6; SOUTHWESTERN BELL TELEPHONE COMPANY
Defendants-Appellees,
and
CWA LOCAL UNION 6222,
Defendant.
________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CA-H-93-0557)
________________________________________________
June 14, 1996
Before BARKSDALE, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:*
Rosalinda Guerra and Arthur R. Martinez, who were employees of
Southwestern Bell Telephone Company (SWBT) and members of
Communications Workers of America, AFL-CIO (the union), challenge
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
post-verdict judgments as a matter of law, which were based on
rulings that Guerra was required, but failed, to exhaust
administrative remedies, and that Martinez's claims were time-
barred. We AFFIRM.
I.
Guerra's employment with SWBT was terminated in mid-1990;
Martinez's in early 1991. In February 1993, they filed this action
with another against, inter alia, the union, their local, and SWBT.
Although their separate claims were tried together, different facts
underlie them.
Guerra claimed that the union and her local, among others,
breached the duty of fair representation by their intentionally
delayed and ineffectual handling of her grievance. After the jury
found that the union had breached that duty, the district court
granted it judgment as a matter of law, because Guerra had not
exhausted administrative remedies and there was insufficient
evidence of breach of the duty of fair representation.
Martinez claimed that SWBT terminated his employment without
just cause under § 301 of the Labor Management Relations Act, 29
U.S.C. § 185, and that the union and his local, among others,
breached the duty of fair representation. After the jury found
against SWBT and the local, the district court granted judgment
against Martinez's claims, concluding that, under the applicable
six-month limitations period, they were time-barred.
II.
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Needless to say, judgments as a matter of law are reviewed de
novo.
In reviewing the district court's decision to grant
a judgment as a matter of law, we use the same
standard of review that guided the district court.
We consider all the evidence with all reasonable
inferences in the light most favorable to the party
opposed to the motion. If the facts and the
inferences point so strongly and overwhelmingly in
favor of [the movant] that reasonable jurors could
not arrive at a contrary verdict, then the motion
was properly granted. If there is substantial
evidence -- that is, evidence of such quality and
weight that reasonable and fair-minded jurors might
reach a different conclusion -- then the motion
should have been denied.
Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948, 950-51
(5th Cir. 1994) (citations omitted), cert. denied, 115 S. Ct. 1110(1995).
A.
Guerra was informed on August 14, 1990, that SWBT was
considering terminating her employment because of poor work
performance. Later that day, she was fired for misconduct for
removing documents claimed proprietary.
On the day that SWBT terminated her, Guerra filed a statement
of occurrence with her local. Within three days, it contested her
discharge by filing a grievance. And, it set a meeting with SWBT
for early October for the first step of the grievance procedure.
At that meeting, the local's president argued for Guerra's
reinstatement; afterwards, Guerra thanked her for her good
presentation. SWBT denied the grievance at the close of the
meeting.
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Rather than proceed through the second and third step
meetings, Guerra elected mediation, which entails bypassing the
second step, appealing to the third step, and, if the grievance is
denied, arranging mediation. (If mediation is unsuccessful, the
employee then has 60 days to elect arbitration, as does an employee
whose grievance is denied after the second and third step
meetings.) Accordingly, the local promptly wrote a letter to
Currie Hallford, union representative, requesting him to proceed to
the third step of the grievance procedure and utilize mediation.
Upon Hallford's demand, SWBT agreed to mediate, but later
informed him that it was unable to do so because Guerra had
initiated an action at law. (Another district court dismissed this
separate action, which pressed a Title VII claim against SWBT and
a § 301 claim against it and the local, for lack of jurisdiction
and failure to exhaust administrative remedies. Guerra appealed;
but, as part of a later settlement with SWBT, discussed infra, she
dismissed the appeal.)
Accordingly, by an early January 1991, letter to SWBT,
Hallford withdrew the mediation request. He then set the third
step meeting in Austin (Guerra's home) at the earliest possible
date, considering the schedules of Guerra, the local officers,
various company officers, and himself. But, Guerra relocated to
Houston; upon her request, Hallford in early-January cancelled the
Austin meeting and scheduled it for the end of April in Houston.
At that April meeting, SWBT again denied the grievance.
Guerra claims that Hallford spent inadequate time preparing her
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case for the meeting, resulting in the denial. Hallford testified,
however, that he had a lengthy telephone conversation with Guerra
before she left Austin, reviewed the grievance file before going to
Houston, met with Guerra for 30 or 45 minutes prior to the
grievance meeting, listed six or eight questions Guerra wanted
asked and asked them at the meeting, argued that SWBT did not have
just cause to discharge Guerra, and gave her the opportunity to
speak at the end of the meeting, at which time she said she had
nothing to add. Hallford testified that he presented every
consideration and tried earnestly to get Guerra reinstated.
Hallford advised Guerra by an early May letter that, based on
his review, he could not recommend to the union that her discharge
be submitted to arbitration, because he felt that an arbitrator
would sustain her discharge, but that she had the right to appeal
his decision. Guerra did so; Hallford was overruled; and the union
requested arbitration in late July.
Arbitration was conducted by the American Arbitration
Association. An arbitrator was selected in October 1991, with the
arbitration date being subject to his schedule. The first dates he
offered were in June 1992, and the union agreed to those, as well
as to others. The AAA scheduled the arbitration for that November.
Guerra claims that the arbitration was postponed further
because the union's attorney, Glenda Pittman, was not prepared.
Although Guerra disclosed to the union that, as noted supra, she
was originally told she would be discharged for poor work
performance, ultimately, the reason she was discharged, as she told
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the union, was misconduct. Therefore, as Guerra testified, it was
reasonable for Pittman to construct the grievance case on discharge
for misconduct. When Pittman began reviewing the file for
arbitration, however, it appeared that SWBT then claimed to have
discharged Guerra not only for misconduct, but also for poor work
performance. Accordingly, Pittman sought a pre-hearing ruling
limiting the grounds to misconduct. But, after a conference call
with counsel, the arbitrator declined to limit the grounds and
postponed the November hearing until mid-December, to allow
preparation for the work performance issue.
Next, the December arbitration was postponed at the request of
SWBT's attorney because of pregnancy complications. Upon pressure
from Pittman, however, SWBT obtained another attorney; the
arbitration was scheduled for late January 1993.
While the union was processing her arbitration, Guerra filed
a second separate action against SWBT. It settled that action;
pursuant to the settlement agreement, Guerra dismissed all pending
actions and, by a January 11, 1993, letter to the union, ordered
the arbitration cancelled, only 11 days before it was scheduled.
And a few weeks later, this action was filed.
Guerra asserts that, if the union breached its duty of fair
representation, she is relieved under Vaca v. Sipes, 386 U.S. 171,
186 (1967), of the obligation to exhaust administrative remedies.
She bases breach on two intertwined grounds. First, she claims
that the union was perfunctory in processing her grievance, that
its representative failed to properly investigate and interview
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pertinent witnesses, and that its attorney was unprepared. But, a
breach of the duty of fair representation occurs only when the
union's conduct is "arbitrary, discriminatory, or in bad faith, so
that it undermined the fairness or integrity of the grievance
process". Landry v. The Cooper/T. Smith Stevedoring Co., 880 F.2d
846, 852 (5th Cir. 1989). "A union does not breach its duty of
fair representation, however, through simple negligence or a
mistake in judgment." Id. Nor does it breach that duty if its
"conduct in processing an employee's grievance was `less than
enthusiastic' and `not perfect'". Id.Therefore, as a matter of law, Guerra has not shown that the
fairness or integrity of the grievance process was undermined.
Moreover, her conclusionary assertion of futility is insufficient;
she has not met her burden of producing "evidence that resort to
available grievance procedures would in fact be futile". Parham v.
Carrier Corp., 9 F.3d 383, 391 (5th Cir. 1993). To the contrary,
she elected arbitration, but then cancelled it, thus depriving "the
union the opportunity to act on [her] behalf." Republic Steel
Corp. v. Maddox, 379 U.S. 650, 653 (1965). In sum, a reasonable
juror could not have found that the union breached its duty of fair
representation.
For her second line of attack, Guerra claims that the delay of
over two years, from her discharge until she cancelled the
arbitration, constituted a breach of that duty. For starters,
Guerra caused part of the delay. In January 1991, the union had to
withdraw its mediation request because she had prematurely
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initiated an action at law against SWBT and the local; and, in mid-
January, she caused the meeting scheduled for Austin to be delayed
until April 1991, because she had it changed to Houston.
In addition, neither the delay due to the arbitrator's
schedule nor that caused by the pregnancy complications of SWBT's
attorney can be attributed to the union. And, finally, it cannot
be faulted for the delay caused by belatedly having to defend
against discharge for poor work performance in addition to
misconduct. In short, the union was not dilatory and did not
breach its duty of fair representation because of delays in
Guerra's grievance procedure.
The fact of the matter is this: on the brink of the much
delayed and hard fought for arbitration, Guerra cancelled it. In
essence, she then elected her remedy -- her contemporaneous
settlement with SWBT. There was no breach by the union; the
district court properly granted judgment as a matter of law.
B.
Martinez's employment was terminated in February 1991 for
insubordination equating to misconduct for failure to follow
instructions. Dismissal was based also on his repeated violations
of company policies and practices during his 17 years of
employment.
Martinez filed a grievance with his local. After it was
denied at the first and second step meetings, the third step
meeting was scheduled for mid-June 1991; but, when Martinez failed
to appear, it had to be rescheduled for the end of August. SWBT
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again denied the grievance at that meeting; and, pursuant to the
collective bargaining agreement, Martinez had 60 days to demand
arbitration.
By letter dated October 11, 1991, union representative
Hallford advised Martinez that he could not recommended arbitration
because of the difficulty in overcoming Martinez's disciplinary
record, but that Martinez could contact his local to appeal this
decision. It was not until early that December that Martinez
requested an appeal of Hallford's decision. The local, by letter
of December 4, requested that Hallford recommend arbitration.
By letter dated January 6, 1992, to the local, with a copy to
Martinez, Hallford replied that the time for arbitration had
expired and that he did not know what further action could be taken
by the union. Hallford then sent another letter to Martinez, dated
April 3, 1992, stating that the union could not take further action
on the grievance. Martinez testified that he did not realize that
he had a claim until his discussion with a union steward in
September, 1992, and asserts that only then did he become aware
that the union did not intend to pursue the claim further.
The limitations period for filing an unfair labor practice
claim is six months. DelCostello v. Int'l Bhd. of Teamsters, 462
U.S. 151, 169 (1983) (borrowing six-month period from § 10(b) of
National Labor Relations Act, 29 U.S.C. § 160(b)). Pursuant to
Barrett v. Ebasco Constructors, Inc., 868 F.2d 170, 171 (5th Cir.
1989), the period begins to run when the plaintiff "knew or should
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have known" of any breach by the union of the duty of fair
representation.
At the very latest, Martinez should have known that the union
did not intend to pursue his claim when he received Hallford's
April 3, 1992 letter, which stated that "[t]here is no further
action that [the union] can take in regards to your grievance....
Any further action that can be taken would have to be of a legal
nature and you would have to initiate those." But, this action was
not filed until more than ten months later, in February 1993. His
claims are time-barred.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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