Parker v. Amalgamated Transit Union

Filing 24

ORDER & REASONS granting as unopposed 17 MOTION to deem request for admissions admitted & 19 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 8/7/2013. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL PARKER

CIVIL ACTION

v.

NO. 12-2878

AMALGAMATED TRANSIT UNION
LOCAL 1560

SECTION "F"

ORDER AND REASONS
Local Rule 7.5 of the Eastern District of Louisiana requires
that memoranda in opposition to a motion be filed eight days prior
to the noticed submission date.

No memoranda in opposition to

Amalgamated Transit Union Local 1560's motion for summary judgment,
or its motion to deem requests for admission admitted, noticed for
submission on August 7, 2013, has been submitted.
Accordingly, the motions are deemed to be unopposed, and
further, it appearing to the Court that the motions have merit,1 IT

1

The defendant requests that the Court deem its requests
for admissions admitted because the plaintiff has failed to respond
to its written discovery, which was served on April 18, 2013.
Plaintiff has failed to respond notwithstanding the facts that (1)
defense counsel contacted the plaintiff twice seeking responses;
and (2) defense counsel filed an unopposed motion to compel
discovery, which was granted by the magistrate judge on July 23,
2013. The defendant's requests for admissions are deemed admitted.
See Fed.R.Civ.P. 36(a)(3).
The defendant next submits that the plaintiff cannot
sustain his claim that ATU 1560 breached its duty of fair
representation because the record shows that its handling of the
plaintiff's grievances was reasonable and Veolia had good cause to
terminate the plaintiff's employment. Based on the applicable case
literature and the record, the Court finds that ATU 1560 has
demonstrated entitlement to summary relief.
Section 9(a) of the National Labor Relations Act
1

authorizes NLRB-certified or employer-recognized unions to act as
the exclusive barganing agent for an appropriate bargaining unit of
employees. 29 U.S.C. § 159(a). To assure that this power is not
abused, federal labor law imposes on unions a statutory duty to
fairly represent all workers in the bargaining unit, which includes
the duty to treat all such workers without hostility or
discrimination, to exercise its discretion with good faith and
honesty, and to avoid arbitrary conduct. Marquez v. Screen Actors
Guild, 525 U.S. 33, 44 (1998); Vaca v. Sipes, 386 U.S. 171 (1967).
The standard by which courts must measure a union's conduct is
whether "if, in light of the factual and legal landscape at the
time of the union's activities, the union's behavior is so far
outside a 'wide range of reasonableness' ... as to be irrational."
Air Line Pilots Ass'n v. O'Neill, 499 U.S. 65 (1991). Thus, a
plaintiff seeking to prove that his union breached its duty of fair
representation in its handling of grievances must offer evidence
that the Union's actions were arbitrary, discriminatory, or in bad
faith. See Vaca, 386 U.S. at 190.
Moreover, even if the employee
chooses to sue only one defendant (and not both the employer and
the union), he must still prove both elements of his claim: that
the employer violated § 301 of the LMRA by breaching the contract;
and that the union breached its duty of fair representation by
mishandling or failing to invoke the grievance-and-arbitration
proceedings. Reed v. United Transportation Union, 488 U.S. 319,
328 (1983); Barrett v. EBASCO Constructors, Inc., 868 F.2d 170, 172
(5th Cir. 1989). Finally, an employee does not have an absolute
right to have a grievance filed or to have a grievance taken
through the arbitration process. See Vaca, 386 U.S. at 171.
ATU 1560 submits this record in support of its request
for summary relief.
The plaintiff was employed by Veolia
Transportation as a streetcar operator.
The record shows that
Parker had a long discipline history resulting in suspensions and
being terminated. The record also shows that ATU 1560 has grieved
Parker's discipline on a number of occasions, including Parker's
January 6, 2010 termination for working a second job while out
sick.
After ATU 1560 obtained Parker's reinstatement, Parker
eventually returned to work on March 22, 2010 (after having been
out sick from September 14, 2009 to January 6, 2010). Parker again
informed Veolia he was sick on September 12, 2010. On November 2,
2010 Veolia sent Parker a letter informing him he was terminated
for job abandonment; Parker was instructed to contact the company
within seven days. He failed to do so. But, the record suggests,
Parker informed Darrell Felix, ATU 1560's Financial Secretary, that
he had received the letter on November 9, 2010. (Parker later took
the position that he never received the letter). Parker also told
Felix that he did not wish to file a grievance concerning his
2

IS ORDERED that the defendant's motion to deem requests for
admissions admitted and its motion for summary judgment are GRANTED
as unopposed.

The plaintiff's case is hereby dismissed.2
New Orleans, Louisiana, August 7, 2013

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

November 18, 2010 termination. When Parker attempted to return to
work in June 2011, about seven months later, Parker was told that
his employment had been terminated. Nevertheless, ATU 1560 filed
a grievance on June 27, 2011, after Parker said that he had failed
to receive Veolia's November 2 letter; the grievance was denied as
untimely.
The record suggests that Parker, Felix, Joseph Prier, and
Julie Richard-Spencer (ATU 1560's lawyer) met on June 30, 2011;
Richard-Spencer requested additional medical documentation because
the one-page letter Parker had submitted authorizing his return to
work was insufficient. But Parker never contacted Richard-Spencer
after the meeting and never supplied additional medical
documentation.
ATU 1560 exhausted steps 1-3 of the grievance
procedure and did not request arbitration of the grievance. ATU
1560 submits that it did not refuse to proceed to arbitration out
of hostility but, rather, decided not to arbitrate the grievance
because it reasonably believed that it would be unsuccessful under
the circumstances, including Parker's admission that he received
the November 2 letter, Parker's failure to contact the company, and
the untimeliness of the grievance. The record supports ATU 1560's
position that it acted reasonably under the circumstances.
The plaintiff has not offered any evidence whatsoever in
support of his claim. Nor is there any evidence in the record that
would support a finding that the union acted in an arbitrary or
discriminatory fashion. Summary judgment is proper if the party
opposing the motion (here, Mr. Parker) fails to establish an
essential element of his case. See Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
2

In light of this Court's ruling on summary judgment, the
defendant's other (unopposed) motions (motion to continue discovery
deadline and motion to continue trial and pretrial deadlines) are
DENIED as moot.
3