Crampton et al v. The Kroger Company et al
Filing
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ORDER Granting Defendants' Motions for Summary Judgment 24 and 25 and Deeming Moot Plaintiffs' for Show Cause 30 . Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Tammy Crampton, et al.,
Plaintiffs,
Case No: 14-14136
Hon. Denise Page Hood
v.
The Kroger Co. d/b/a
Kroger # 576, et al.
Defendants,
/
ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY
JUDGMENT (DOC. # 24) AND (DOC. # 25) AND DEEMING MOOT
PLAINTIFFS’ MOTION FOR SHOW CAUSE (DOC. # 30)
I.
INTRODUCTION AND BACKGROUND
Plaintiffs Tammy Crampton (“Crampton”) and Mary Beth Savage
(“Savage”) both worked as grocery store clerks for Kroger. Their immediate
supervisor was Maggie Phan. United Food and Commercial Workers Local #876
(“UFCW”) is a labor union that represents Kroger # 576 employees, including
Plaintiffs. Plaintiffs allege that their employment is governed by a Collective
Bargaining Agreement (“CBA”) negotiated by UFCW. Kroger has a work rule that
forbids employees from making store purchases while “on the clock.” According to
Kroger, violation of this work rule will result in discharge.
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Plaintiffs made purchases at the Kroger store while they were on the clock
working. The same day they made these purchases, Phan suspended both women
“pending advisability of discharge” for “purchasing on the clock.” Plaintiffs
contend that this was a commonly violated work rule and many employees violated
this rule without ramifications. UFCW filed grievances on behalf of Plaintiffs, but
these grievances were denied at “Step 3," by Kroger’s labor relations manager Joe
Gusman. Both Plaintiffs requested that UFCW proceed to Step 4 which is
arbitration. UFCW refused to proceed to arbitration. In Crampton’s case, UFCW
stated it would “not take such cases (“purchasing on the clock”) to arbitration.
Plaintiffs are suing Kroger for breach of the CBA. They argue that the CBA
provides that “No employee shall be discharged or disciplined, except for just
cause.” (Doc. 1 pg. 4). And, it includes a grievance procedure which provides for
binding arbitration. According to Plaintiffs, arbitrators have the ability to reverse
an adverse employment decision.
Plaintiffs filed suit against Kroger and the UFCW. Plaintiffs allege that
Kroger breached the collective bargaining agreement by firing them in violation of
non-bargained for work rules. Plaintiffs allege that they were not fired for just
cause, but rather for minor violations of Kroger’s “Purchase Policy.”
Plaintiffs allege that UFCW breached its duty of representation. They argue
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that although the UFCW filed grievances, it failed to pursue the matter to
arbitration and challenge the terminations. Instead, Plaintiffs contend that UFCW
acceded to Kroger’s decision to terminate Plaintiffs and agreed that the
terminations were reasonable. Plaintiffs further allege that UFCW has an official
policy of failing to challenge violations of the “Purchase Policy.” According to
Plaintiffs, UFCW’s conduct was arbitrary and lacked good faith.
Defendants disagree. Kroger says its policy is clear that employees who
make purchases on the clock will be terminated. It contends it has consistently and
uniformly applied this policy to all known employees who violate this rule.
Accordingly, it did not breach the CBA. The Union states that it was justified in
refusing to pursue Plaintiffs’ grievances to arbitration and its decision was rational.
The UFCW contends it did not act with bad faith or in an arbitrary or
discriminatory manner.
Plaintiffs’ First Amended Complaint contains a third count alleging race
discrimination against Crampton in violation of Title VII. In Kroger’s Motion for
Summary Judgment, it states that Plaintiffs agreed to withdraw this count. The
parties did not address this issue at oral argument. Plaintiffs’ response to Kroger’s
motion for summary judgment does not address the racial discrimination count.
Plaintiffs’ failure to address the claim demonstrates abandonment and waiver of
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the claim. See Brown v. Gojcaj Foods, Inc., No. 09–14537, 2011 WL 1980533, at
*3 (E.D.Mich. May 20, 2011).
II.
STANDARD OF REVIEW
A Court should grant summary judgment if "the movant shows 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); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250-57 (1986). A fact is material if it could affect the outcome of the case
based on the governing substantive law. Id. at 248. A dispute about a material fact
is genuine if on review of the evidence, a reasonable jury could find in favor of the
nonmoving party. Id.
The moving party bears the initial burden to demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the movant meets this burden, the nonmoving party must "go beyond the
pleadings and … designate specific facts showing that there is a genuine issue for
trial." Id. at 324. The Court may grant a motion for summary judgment if the
nonmoving party who has the burden of proof at trial fails to make a showing
sufficient to establish the existence of an element that is essential to that party's
case. See, Muncie Power Prods., Inc. v. United Tech. Auto., Inc., 328 F.3d 870,
873 (6th Cir. 2003). "The mere existence of a scintilla of evidence in support of the
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plaintiff's position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. "Conclusory
allegations do not create a genuine issue of material fact which precludes summary
judgment." Johari v. Big Easy Restaurants, Inc., 78 F. App'x 546, 548 (6th Cir.
2003).
When reviewing a summary judgment motion, the Court must view the
evidence and all inferences drawn from it in the light most favorable to the
nonmoving party. Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.
1986). The Court "need consider only the cited materials, but it may consider other
materials in the record." Fed. R. Civ. P. 56(c)(3). The Court's function at the
summary judgment stage "is not to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for trial." Anderson,
477 U.S. at 249.
III.
DISCUSSION
Plaintiffs bring a hybrid § 301 claim of the Labor–Management Relations
Act, 29 U.S.C. § 185, which states:
Suits for violation of contracts between an employer and a labor organization
representing employees in an industry affecting commerce as defined in this Act,
or between any such labor organizations, may be brought in any district court of
the United States having jurisdiction of the parties, without respect to the amount
in controversy or without regard to citizenship of the parties.
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A hybrid § 301 claim is “the consolidation of two separate but interdependent
actions: one against the employer for breach of the collective-bargaining agreement
and one against the union for breach of the duty of fair representation.” Robinson
v. Central Brass Mfg. Co., 987 F.2d 1235, 1238–39 (6th Cir.1993). “To prevail
under any claim, the employee must show both that the employer discharged [her]
in violation of the collective-bargaining agreement and that the union breached its
duty of fair representation during the grievance process.” Id. at 1239. “Unless
[plaintiff] demonstrates both violations, [she] cannot succeed against either party.”
Bagsby v. Lewis Bros. Inc., 820 F.2d 799, 801 (6th Cir.1987). Consequently, the
two claims are often combined in a single lawsuit and referred to as a hybrid §
301/fair representation claim. Robinson, 987 F.2d at 1239.
A.
UFCW Alleged Breach of the Duty of Fair Representation
Plaintiffs contend that UFCW breached its duty of fair representation by
failing to pursue their claims to arbitration. They allege that this failure was
arbitrary and in bad faith because the work rule was allegedly frequently violated.
Plaintiffs also allege that Defendants have a policy of not challenging “purchase
policy” grievances. Defendants argue that the decision to forgo arbitration was
lawful because Plaintiffs’ claims lacked merit.
Neither party cited any case law that examines whether a union that has a
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policy of not pursuing certain claims to arbitration violates its duty of fair
representation. Plaintiffs have not cited to any authority that examines a union’s
policy regarding refusal to arbitrate certain claims. As a result, the Court examined
authority exploring a union’s obligations regarding its duty of fair representation.
“A breach of the statutory duty of fair representation occurs only when a
union's conduct toward a member of the collective bargaining unit is arbitrary,
discriminatory, or in bad faith.” White v. Detroit Edison Co., 472 F.3d 420, 426
(6th Cir. 2006) citing Vaca v. Sipes, 386 U.S. 171, 190 (1967). The duty of fair
representation does not require a union to fully pursue each and every grievance
filed. Driver v. U.S. Postal Serv., Inc., 328 F.3d 863, 869 (6th Cir. 2003). See also,
Vaca v. Sipes, 386 U.S. 171, 190 (1967) (“we do not agree that the individual
employee has an absolute right to have his grievance taken to arbitration.”). A
union’s failure to pursue a grievance after conducting a thorough investigation of
the employee's complaint, and reaching a reasonable conclusion that the complaint
does not merit further action, does not necessarily violate the union's duty of fair
representation. Driver v. U.S. Postal Serv., Inc., 328 F.3d 863, 869 (6th Cir. 2003).
Plaintiffs allege UFCW’s refusal to arbitrate their grievances was arbitrary.
The Court disagrees. “[A] union's actions are arbitrary only if, in light of the
factual and legal landscape at the time of the union's actions, the union's behavior
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is so far outside a “wide range of reasonableness,” as to be irrational. Air Line
Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 67 (1991)(internal citations omitted).
"[A]n unwise, or even an unconsidered decision by the union is not necessarily an
irrational decision." Air Line Pilots, 499 U.S. at 78. Courts must be highly
deferential when substantively examining the performance of a union’s
representation. Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 78 (1991).
First, the Court wants to clarify that, despite Plaintiffs’ contentions,
Kroger’s “Purchase Policy” was included in the CBA. The CBA states that Kroger
has the right to establish rules for its business operations, the violation of which
may be cause for discharge. See, Doc. 25-7 at 6 CBA (“Article 4 - Management
Rights: The management of the business. . .including. . . the right to establish and
maintain rules and regulations covering operation of the stores, a violation of
which shall be among the causes for discharge, are vested in the Employer. . .”).
Plaintiffs are subject to the rule and the rule was encompassed through the CBA.
UFCW’s failure to challenge a clear policy within the discretion of management is
not arbitrary or irrational. See also, Rural Metro Ambulance Co., 123 Labor
Arbitration Reports 604, 613 (BNA 2007) (“it is generally understood that where
proof of misconduct has been established the decision as to the appropriate penalty
is a determination that lies within the discretion of management.”).
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Kroger’s policy handbook emphatically states that “Any violation of
Employee Purchase Policy will result in discharge.” (emphasis added). Both
Plaintiffs acknowledged understanding this work rule and admitted violating this
rule. Doc. 24-4 Crampton Dep. Pg. 47; 5-19 - pg 48; 1-11. Doc 24-3 Savage Dep.
Pg 37; 19-21; pg. 39; 21-24. UFCW processed Plaintiffs’ grievances to Step 3, but
concluded that the grievances were not worth pursuing to arbitration. (Doc. # 24).
UCFW largely based this decision on the fact that Plaintiffs admitted that they
knew their conduct violated company policy and they had done so before. As noted
by the Sixth Circuit, “[t]he duty of fair representation does not require a union to
fully pursue each and every grievance filed.” Driver, 328 F.3d at 869. UFCW’s
refusal to pursue Plaintiffs grievance to arbitration when the employees knowingly
violated a work rule the consequence of which is termination, was not
unreasonable or completely irrational as to rise to the level of being arbitrary.
Plaintiffs failed to establish that UFCW’s refusal to arbitrate a termination
that was the result of violating known work rule was done so in bad faith. To show
“bad faith,” plaintiff must show the union acted with “improper intent or motive.”
Bowerman v. Int'l Union, United Auto., Aerospace & Agric. Implement Workers of
Am., Local No. 12, 646 F.3d 360, 368 (6th Cir. 2011), citing Williamson v. Lear
Corp., 183 F. App'x 497, 505 (6th Cir. 2006). Bad faith “encompasses fraud,
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dishonesty, and other intentionally misleading conduct.” Burkholder v. Int'l Union,
United Auto. Aerospace & Agr. Implement Workers of Am., Local No. 12, 700 F.
Supp. 2d 895, 907 (N.D. Ohio 2010), aff'd sub nom. Bowerman v. Int'l Union,
United Auto., Aerospace & Agric. Implement Workers of Am., Local No. 12, 646
F.3d 360 (6th Cir. 2011). Plaintiffs do not bring forth any information that suggests
that UFCW acted with bad faith. They did not produce any evidence of ill intent or
motive in failing to arbitrate Plaintiffs’ claims.
Plaintiffs argue that the rule was selectively enforced as it was commonly
broken by others. But, this argument is unpersuasive. First, Plaintiffs failed to
show that the rule was selectively enforced. Plaintiffs identified various individuals
they said violated the “purchase policy,” such as Deborah Vargas and Paul Bryson.
Plaintiffs allege that they witnessed both of these individuals violate the rule
multiple times. See, Crampton Dep. 89-92, 115-116; Savage Dep. 53-54, 85-88.
However, both Plaintiffs admit that they did not report these violations to
management. In fact, Savage was asked, “Do you have knowledge that anyone, any
one of your colleagues, informed management. . . of the other employees who you
saw on a regular basis purchasing items on the clock?” Savage replied, “I would
have no idea if anyone informed them.” Savage Dep. 89- 1-11. The Court agrees
with the reasoning of the Bureau of National Affairs, which stated, “absent
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evidence that the Company was aware of prior incidents in which [the claimant
violated the company rule], the arbitrator cannot conclude that enforcement was so
lax as to constitute approval or tolerance of the purported practice.” Southern
California Edison, 89 Labor Arbitration Reports 1129, 1136 (1987). Absent
affirmative evidence Kroger knew about the other “Purchase Policy” violations,
Plaintiffs cannot show that the policy was selectively enforced.
Second, stating that Plaintiffs’ behavior should be excused because everyone
violated the “Purchase Policy” is not supported by the record. If anything, this
statement only demonstrates that Kroger may be too trusting of its employees. See,
Southern California Edison, 89 Labor Arbitration Reports 1129, 1136 (BNA
1987). (Perhaps the “trust of certain employees was unwarranted, and those
employees, including the Grievant, took advantage of the opportunity. The fact that
several employees may have done so does not establish Company condonation of
[the prohibited behavior].”).
In light of the above, Plaintiffs failed to overcome their burden to show a
material fact exists as to whether UFCW breached its duty of fair representation.
B.
Kroger’s Alleged Breach of Collective Bargaining Agreement
As noted, to recover against either the company or the union, a plaintiff
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must show that the Company breached the collective bargaining agreement and
that the Union breached its duty of fair representation. Bagsby v. Lewis Bros. Inc.
of Tennessee, 820 F.2d 799 (6th Cir.1987). “Unless [plaintiff] demonstrates both
violations, he cannot succeed against either party.” White v. Anchor Motor Freight,
Inc., 899 F.2d 555, 559–60 (6th Cir. 1990)(citing Hines v. Anchor Motor Freight,
424 U.S. 554, 570–71 (1976)). Because Plaintiffs cannot establish that the UFCW
breached its duty of fair representation, it cannot sustain its hybrid claim.
Accordingly, the Court does not need to address whether Kroger breached the
CBA.
IV.
Plaintiffs’ Motion to Show Cause for Failure to Honor Subpeona for
Deposition (Doc. # 30)
Plaintiffs filed a motion to show cause Peter Vargas for failing to honor a
subpeona for deposition. Since the Court grants summary judgment in favor of
Defendants, this motion is moot.
V.
CONCLUSION
Defendants’ Summary Judgment Motions (Doc. # 24) and (Doc. # 25) are
GRANTED. Plaintiffs’ show cause motion (Doc. # 30) is MOOT.
SO ORDERED.
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S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: September 30, 2016
I hereby certify that a copy of the foregoing document was served upon
counsel of record on September 30, 2016, by electronic and/or ordinary
mail.
S/LaShawn R. Saulsberry
Case Manager
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