PRICE v. UNION LOCAL 25 et al

Filing 37

MEMORANDUM OPINION. Signed by Judge John D. Bates on 8/10/2012. Associated Cases: 1:10-cv-01865-JDB, 1:11-cv-00784-JDB (lcjdb1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

KERRY SHEA PRICE,
Plaintiff,
v.

Civil Action No. 10-1865 (JDB)

UNITE HERE LOCAL 25,
Defendant.

KERRY SHEA PRICE,
Plaintiff,
v.

Civil Action No. 11-784 (JDB) (consolidated
with Civil Action No. 10-1865 (JDB))

DC CAP HOTELIER LLC, CONNIE
MILSTEIN, AND FRANK ARNOLD,
Defendants.

MEMORANDUM OPINION
I.

Background

Plaintiff Kerry Shea Price, proceeding pro se, brings this action against his former
employer DC CAP Hotelier d/b/a the Jefferson Hotel (“the Jefferson”), as well as the Jefferson’s
owner and general manager, alleging that they breached a collective bargaining agreement
(“CBA”) governing his employment at the Jefferson in violation of § 301 of the Labor
Management Relations Act (“LMRA”), 29 U.S.C. § 185. He further alleges that defendant
UNITE HERE Local 25 (“the Union”) breached its duty of fair representation by failing to

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pursue a grievance on his behalf. These claims combine to form what the Supreme Court has
labeled a “hybrid § 301/fair representation” claim. DelCostello v. Int’l Bhd. of Teamsters, 462
U.S. 151, 165 (1983). All defendants have moved for summary judgment pursuant to Federal
Rule of Civil Procedure 56. For the reasons that follow, defendants’ motions will be granted.
A.

Factual Background
The Jefferson Hotel, located in Washington, D.C., employed plaintiff as a cook from July 20,

2009 to November 6, 2009. Pl.'s Am. Compl. [ECF 23] ("Pl.'s Compl.") ¶¶ 2, 23. Many of the
Jefferson’s employees are represented by the Union, a labor organization representing hospitality
workers in and around the District of Columbia. Union’s Mem. in Supp. Mot. Summ J. [ECF 30]
(“Union’s Mem.”) at 2. Over the years, the Union and the Jefferson have negotiated a series of
collective bargaining agreements that govern the terms of employment for Jefferson employees.
Union’s Mem. at 2.
In January 2007, representatives of the Jefferson and the Union met to discuss the hotel’s
planned renovation, which would require the complete closure of the facility. Jefferson Defs.’
Mem. in Supp. Mot. Summ. J [ECF 28] (“Jefferson’s Mem.”) at 2. On January 29, 2007, the
parties signed a series of agreements regarding employment issues relevant to the renovation and
eventual reopening of the hotel. See Union’s Mem. at 2-3 & Att. 1 ¶ 5 (Declaration of Stephanie
Jones) (“Jones Decl.”); Jefferson’s Mem. at 2-3 & Att. 1 ¶ 3 (Certification of Gabrielle
Desintonio) ("Desintonio Cert."). The parties negotiated a shutdown agreement where the
Jefferson agreed to adopt the collective bargaining terms that would be settled in the upcoming
rounds of negotiations with modifications that would apply upon the hotel’s reopening. See
Union’s Mem. at 2; Jones Decl. ¶ 5 & Ex. A ¶ 14 (Shutdown Agreement). Those modifications

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were set forth in a Letter of Agreement, executed on the same day as the Shutdown Agreement.
Jones Decl. ¶ 5 & Ex. B (Letter of Agreement) (“Agreement”).
In the Letter of Agreement, the Union and the Jefferson agreed to a probationary period
for returning employees as well as an extended probationary period for employees hired during
and after the renovation. Agreement ¶¶ 3-4. Employees hired after the start of the renovations
would be on probationary status during a pre-opening period of up to ninety days, and they
would also be subject to an additional ninety-day probationary period following the hotel’s
reopening. Id. During the probationary period, Union-represented employees would not have
access to the grievance and arbitration procedure unless they were “returning employees.” Id. An
explanation of the probationary period was included in the Employee Benefits Guide that was
issued to the Jefferson’s Union-represented employees in the fall of 2009. Jefferson’s Mem. at 3;
Desintonio Cert., Ex. B at 1. Plaintiff acknowledged his receipt of the Employee Benefits Guide
on October 12, 2009. Hotel’s Mem. at 3 & Ex. C.
When the Jefferson hired plaintiff on July 20, 2009, Pl.’s Compl. ¶ 2, the hotel had
already been closed for renovations. It officially reopened on August 31, 2009. Jefferson’s Mem.
at 3. On November 6, 2009, sixty-seven days after the official reopening, the Jefferson fired
plaintiff as the result of an alleged altercation with another employee. Pl.’s Compl. ¶ 23;
Jefferson’s Mem. at 3. The Union filed a grievance on plaintiff’s behalf, Pl.’s Compl. ¶ 27, but
took no further action after the Jefferson informed the Union that plaintiff did not have access to
the grievance procedure because he was still within the ninety-day probationary period following
the hotel’s reopening date, Jefferson’s Mem. at 3.
B.

Procedural History

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Plaintiff originally filed two separate lawsuits, one against the Union and one against the
Jefferson, bringing several statutory and constitutional claims against each defendant.1 The Court
eventually dismissed all claims except for (1) the claim that the Jefferson had breached the CBA
in terminating plaintiff, in violation of § 301 of the LMRA, 29 U.S.C. § 185, and (2) the claim
that the Union breached its duty of fair representation by failing to adequately represent him in
his grievance against his termination. As explained, plaintiff’s two claims combine to form what
the Supreme Court has labeled a “hybrid § 301/fair representation” claim. DelCostello, 462 U.S.
at 165. Hence, the two actions were consolidated. Order Granting Mot. to Consolidate Cases
[ECF 22].
II.

Standard of Review

Summary judgment is appropriate when the pleadings and the evidence demonstrate that
“there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial
responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its
motion by identifying those portions of “the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made
for purposes of motion only), admissions, interrogatory answers, or other materials,” which it
believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(1); see
Celotex, 477 U.S. at 323.

1
Both actions were filed in the Superior Court of the District of Columbia. Defendants removed
the cases to this Court pursuant to 28 U.S.C. §§ 1441 and 1331. See Notice of Removal, No. 11784 (April 22, 2011) [ECF 1]; Notice of Removal, No. 11-1865 (Nov. 2, 2010) [ECF 1].

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In determining whether there exists a genuine issue of material fact sufficient to preclude
summary judgment, the court must regard the non-movant's statements as true and accept all
evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the
“mere existence of a scintilla of evidence” in support of its position. Id. at 252. By pointing to
the absence of evidence proffered by the non-moving party, a moving party may succeed on
summary judgment. Celotex, 477 U.S. at 322. “If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50
(citations omitted). Summary judgment is appropriate if the non-movant fails to offer “evidence
on which the jury could reasonably find for the [non-movant].” Id. at 252.
Defendant Jefferson contends that in accordance with Local Civil Rule 7(h), the Court
must accept as true those facts presented by defendants in their statements of material facts that
plaintiff did not specifically refute. Reply Mem. in Further Supp. of Jefferson’s Mem. [ECF 35]
(“Jefferson’s Reply”) at 2-4. However, district courts have discretion to excuse noncompliance
with Rule 7(h). See Bush v. District of Columbia, 595 F.3d 384, 387 (D.C. Cir. 2010); Arrington
v. United States, 473 F.3d 329, 335 (D.C. Cir. 2006). Furthermore, courts must construe pro se
filings liberally, Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999), and “may
ignore some technical shortcomings,” Voinche v. FBI, 412 F. Supp. 2d 60, 70 (D.D.C. 2006).
See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam) (holding pro se complaints
to “less stringent standards than formal pleadings drafted by lawyers”). As a result, this Court
will excuse plaintiff’s omission of a statement of genuine issues.

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III.

Discussion

A “hybrid” claim under § 301 of the LMRA comprises two causes of action: one against
the union for breach of the duty of fair representation and one against the employer for breach of
contract. DelCostello, 462 U.S. at 164. In order to prevail against either defendant, a plaintiff
must prove both parts of the hybrid claim, as the two parts are “inextricably interdependent.”
United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 62, 66 (1981). Procedurally, the Court must
first determine whether a bargaining representative has breached its duty of fair representation
before assessing the breach of contract claim. Id. at 62; Brown v. Gino Morena Enters., 44 F.
Supp. 2d 41, 44 (D.D.C. 1999).
A.

Duty of Fair Representation
The Supreme Court has held that labor unions have “a statutory duty fairly to represent”

covered employees under the National Labor Relations Act. Vaca v. Sipes, 386 U.S. 171, 177
(1967). In order to establish that a bargaining representative has breached its duty of fair
representation, a plaintiff must demonstrate that the union represented the employee in a
“discriminatory, dishonest, arbitrary, or perfunctory fashion . . . .” DelCostello, 462 U.S. at 164.
See also Payne v. Giant Food, Inc., 346 F. Supp. 2d 15, 20 (D.D.C. 2004) (“[T]he Union
breaches its duty only when its behavior is so far outside a wide range of reasonableness that it is
wholly irrational or arbitrary . . . .”) (internal quotation marks and citations omitted).
Plaintiff cannot make that showing here. The Letter of Agreement between the Jefferson
and the Union expressly established an extended probationary period for all employees who were
hired after the hotel’s renovation began. Under that agreement, “[o]nce the Hotel officially
opens, all employees . . . will be subject to a ninety (90) day probationary period. . . . No
employee shall have access to the grievance and arbitration procedure during this period except

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for ‘returning employees.’” Agreement ¶ 4.2 Plaintiff does not claim that he was a “returning
employee.” For other employees, the agreement unambiguously denies access to the grievance
and arbitration procedure for anyone dismissed during the ninety-day probationary period
following the hotel’s reopening. Hence, if the Letter of Agreement is valid and plaintiff was a
probationary employee at the time of his termination, the Union would have had no obligation to
initiate a grievance or arbitration procedure on his behalf. Therefore, there would be no violation
of the duty of fair representation, because a union does not breach its duty by failing to act when
it is not obligated to do so. See Diaz v. Int’l Longshore and Warehouse Union, Local 13, 474
F.3d 1202, 1206 (9th Cir. 2007); Cruz v. Local Union No. 3 of the Int’l Bhd. of Elec. Workers,
34 F.3d 1148, 1153-54 (2d Cir. 1994) (union defendants do not breach their duty of fair
representation by failing to “process a meritless grievance”).
Plaintiff challenges the validity of the Letter of Agreement on the ground that its terms
conflict with the master CBA.3 Pl.’s Opp’n to Jefferson’s Mem. & Union’s Mem. [ECF 34]
(“Pl.’s Opp’n”) at 6. However, the Letter of Agreement expressly provides that “[t]o the extent
this side letter conflicts with the CBA, the side letter governs.” Agreement at 1. Side letters
mutually agreed to by the parties in a collective bargaining relationship may supplement the
original collective bargaining agreement. See N.Y. & Presbyterian Hosp. v. NLRB, 649 F.3d

2
Similarly, the Employee Benefit Guide states that: “Once the Hotel officially opens, all
Employees who have met the Hotel’s standards during the Pre-Opening Period . . . will be
subject to a ninety (90) day probationary period. During this official hotel Opening Period,
Employees may be terminated for failing to meet the Hotel’s established rules and standards, as
determined by the hotel, with no access to the grievance and arbitration procedure.” Hotel’s
Mem., Ex. B at 1.
3
Plaintiff also argues that the Letter of Agreement is invalid for a number of other reasons,
including its “uncustomary and unconventional” probationary period. Pl.’s Opp’n at 6-7.
However, probationary provisions are a common practice in collective bargaining agreements,
and even a six-month probationary period is not so far outside a wide range of reasonable
alternatives that it is irrational or arbitrary. See Brown, 44 F. Supp. 2d at 44-45.

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723, 726 (D.C. Cir. 2011) (“the collective bargaining agreement . . . includes a ‘side letter’”); see
also Moreau v. James River-Otis, Inc., 652 F. Supp. 1030, 1031 (D. Me. 1987) (“The proposed
side agreement constituted an exception to the general provision in the collective bargaining
agreement . . . .”); Evansville-Vanderburgh Sch. Corp. v. Evansville Teachers Ass'n, 494 N.E.2d
321, 325-26 (Ind. Ct. App. 1986) (side letter that declared “this letter will serve to supplement
the collective bargaining agreement” was part of the collective bargaining agreement). Hence,
even if the probationary period established in the Letter of Agreement conflicts with provisions
of the master CBA, the terms agreed to in the side letter control this case. Plaintiff has not
offered any reason the Court should conclude otherwise.
The claim for a breach of the duty of fair representation, then, turns on whether plaintiff
was in fact a probationary employee at the time of his dismissal. The Court denied the
Jefferson’s previous motion to dismiss because on that record there was no way to verify
whether plaintiff was, as defendants claimed, on probationary status. Price v. DC CAP Hotelier,
LLC, 11 Civ. 784 (D.D.C. Jan. 3, 2012) [ECF 10] at 7. However, in an attempt to avoid spending
the parties’ time and resources on prolonged discovery if defendants had a viable threshold
defense, the Court allowed defendants to resubmit their motions and provide evidence on that
point. The Court noted that limited discovery could potentially be taken if necessary, but it
appears that no such discovery was requested or conducted.
Defendants have now submitted the documentation necessary to show that plaintiff was
in fact a probationary employee. The Letter of Agreement and plaintiff’s acknowledgment form
establish that all employees were subject to a ninety-day probationary period following the
hotel’s official reopening and that only “returning employees” had access to the grievance
procedure during that time. The documents also show that plaintiff was dismissed on November

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6, 2009 – sixty-seven days after the hotel’s official opening. He was, then, within the 90-day
probationary period established by the Letter of Agreement at the time of his dismissal.
Plaintiff’s only counterargument is that he was paying union dues at the time of his
dismissal. In support of this argument, he has submitted an earnings statement from the Jefferson
that shows that union dues were deducted from his paycheck in September 2009. Plaintiff
contends that “Defendant Local 25 does not collect union dues, from non-union members” and
therefore “as a result of accepting [p]laintiff’s monthly payments, said [d]efendant had an
obligation and responsibility to represent [p]laintiff . . . .” Pl.’s Opp’n at 7. However, while it
may be unusual to collect union dues from probationary employees, it is not unheard of. See
NLRB v. Okla. Fixture Co., 332 F.3d 1284, 1293-94 (10th Cir. 2003) (en banc) (discussing
deduction of dues equivalent from probationary employees’ wages); see also Holmes v. Cnty. of
Cook, No. 03-4772, 2006 WL 208706, at *2 (N.D. Ill. Jan. 24, 2006) (employee who paid union
dues was still a probationary employee who “[had] no seniority and [could] be terminated at any
time during the probationary period”). Moreover, even if the payment of dues were evidence that
plaintiff was a union member, he still would not have necessarily been entitled to access the
grievance procedure. The Letter of Agreement states that “[n]o employee shall have access to the
grievance and arbitration procedure during [the 90-day probation] period except for ‘returning
employees.’” Agreement ¶ 4 (emphasis added). As noted above, plaintiff has not argued that he
was a returning employee.
Plaintiff’s final argument is that a union’s disparate treatment of probationary employees
is itself a breach of the duty of fair representation. The Court disagrees. The Supreme Court has
held that a union must be accorded a wide range of reasonable choices and has broad authority in
the negotiation of the collective bargaining agreement. Ford Motor Co. v. Huffman, 345 U.S.

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330, 338 (1953). Thus, several courts of appeals have found that a union’s negotiation of a
collective bargaining provision that treats probationary employees differently from regular
employees does not constitute a breach of the duty of fair representation. Traffas v. Cessna
Aircraft Co., 62 Fed. App’x 891, 898 (10th Cir. 2003); Skillsky v. Lucky Stores, Inc., 893 F.2d
1088, 1096 (9th Cir. 1990); Van Leeuwen v. U.S. Postal Serv., 628 F.2d 1093, 1096-97 (8th Cir.
1980). In light of the broad discretion given to unions in negotiating collective bargaining
agreements, the probationary period in the CBA at issue here is not so far outside a wide range of
reasonable alternatives as to be wholly irrational or arbitrary. See Brown, 44 F. Supp. 2d at 4445. Therefore, the Union did not breach its duty of fair representation by agreeing to forego
access to the grievance procedure for probationary employees.
Because the CBA as modified by the Letter of Agreement absolves the Union of any duty
to file a grievance on behalf of a probationary employee, and because plaintiff was a
probationary employee, the Union cannot be said to have violated its duty of fair representation
by not challenging the plaintiff’s discharge. Van Leeuwen, 628 F.2d at 1096-97.
B.

Breach of Contract
Even if plaintiff could prove that the Union had breached its duty of fair representation,

he still could not sustain a claim for breach of the CBA against the Jefferson. Where a plaintiff
has no contractual protections against dismissal, his discharge cannot be considered a breach of
the CBA. Id. Here, the Letter of Agreement created a probationary status and expressly revoked
any contractual protections against dismissal for probationary employees. The D.C. Circuit has
determined that probationary employees covered by similar provisions cannot raise contractual
challenges to their dismissal. Am. Postal Workers Union, AFL-CIO v. U.S. Postal Serv., 940
F.2d 704, 707 (D.C. Cir. 1991) (employees could not raise contract-based claims in federal court

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where collective bargaining agreement left probationary employees with no contractual means of
challenging their dismissals); Sanders v. Wash. Metro. Area Transit Auth., 819 F.2d 1151, 1158
(D.C. Cir. 1987) (probationary employee terminable at will and without access to grievance
proceedings had no contractual claim for termination). As established above, plaintiff was a
probationary employee at the time of his discharge and therefore was not entitled to use the
grievance and arbitration procedure. Hence, he cannot pursue a claim for breach of contract
against the Jefferson.
C.

Plaintiff's Motion for Leave to File an Amended Complaint
Plaintiff has also filed a motion requesting leave to file an amended complaint. Pl.’s Mot.

to File Am. Compl. [ECF 24]. While leave to amend a complaint should be freely granted when
justice so requires, see Fed. R. Civ. P. 15(a)(2), the Court may deny a motion to amend if such
amendment would be futile, Foman v. Davis, 371 U.S. 178, 182 (1962); James Madison Ltd. v.
Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996). “An amended complaint is futile if it merely
restates the same facts as the original complaint in different terms . . . or could not withstand a
motion to dismiss.” Robinson v. Detroit News, Inc., 211 F. Supp. 2d 101, 114 (D.D.C. 2002)
(citation omitted).
Here, plaintiff proposes to amend his complaint by adding allegations of unfair labor
practices and discharge without just cause. Both claims are fatally defective. Except in limited
circumstances, the National Labor Relations Board has exclusive primary jurisdiction over
claims involving unfair labor practices. See United Electric, Radio and Mach. Workers of Am. v.
Gen. Electric Co., 231 F.2d 259, 308 (D.C. Cir. 1956). Plaintiff has not pled facts that would
support an exception to that rule here, nor has he pled any facts plausibly supporting an
entitlement to relief on this claim. And even if he had, the 180-day statute of limitations for

11

unfair labor practices claims would have run by the time plaintiff filed his complaints in this
case. 29 U.S.C. § 160 (b). The "discharge without just cause" claim, then styled as a wrongful
discharge claim, has already been dismissed to the extent it differed from plaintiff's § 301/fair
representation claim. Price v. DC CAP Hotelier, LLC, 11 Civ. 784 (D.D.C. Jan. 3, 2012) [ECF
10] at 3-4.
In addition, the Jefferson defendants correctly note that this is the second time plaintiff
has sought to amend his complaint to avoid a dispositive motion, even though all relevant facts
were known to him from the beginning of this litigation. Defs.’ Mem. Opp’n Pl.’s Mot. Am.
Compl. [ECF 26] at 5. Although leave to amend should be freely given when justice so requires,
plaintiff cannot keep this case alive indefinitely by shifting his legal theories at the last minute.
For that reason as well, the Court will deny the motion for leave to amend. See Equity Group,
Ltd. v. Painewebber, Inc., 839 F. Supp. 930, 932 (D.D.C. 1993) (“The Court finds that the
amended complaint is merely a tactic designed to evade summary judgment, and that to allow
amendment at this time would protract the litigation and thus prejudice defendant.”); see also
Stoddard v. District of Columbia, 764 F. Supp. 2d 213, 220-21 (D.D.C. 2011).
IV. Conclusion
Summary judgment is appropriate if the non-movant fails to offer “evidence on which the
jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252. Plaintiff has failed
to come forward with specific facts showing that he was not a probationary employee subject to
the terms of the Letter of Agreement at the time of his dismissal. He therefore cannot show either

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that the Union breached its duty of fair representation or that the Jefferson breached any
contractual right of his.4 A separate order accompanies this Memorandum Opinion.

/s/
JOHN D. BATES
United States District Judge
Dated: August 10, 2012

4
Given the resolution of defendants’ summary judgment motions, the Court will dismiss as moot
plaintiff’s motion to commence discovery.

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