Serna v. National American Postal Workers Union-AFL-CIO et al

Filing 105

MEMORANDUM OPINION AND ORDER. Signed by Judge Jason K. Pulliam. (mgr)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

RICHARD SERNA,
Plaintiff.
v.

No. 5:17-CV-01231-JKP

NATIONAL AMERICAN POSTAL
WORKERS UNION, AFL-CIO, et al,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter came before the Court on October 28, 2019, for hearing upon Defendant
American Postal Workers Union, AFL-CIO’s (“APWU National”) Motion to Dismiss Plaintiff’s
Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF No. 73)
and Defendant American Postal Workers Union San Antonio Alamo Area Local 0195’s (“Local
0195”) Partial Motion to Dismiss (ECF No. 76). Joni S. Jacobs and Matthew Gerald Holder
appeared on behalf of Defendants. Plaintiff failed to appear. Having considered Defendants’
motions and Plaintiff’s responses, the record, and the applicable law, the Court GRANTS
Defendant APWU National’s Motion and DENIES Local 0195’s Motion as MOOT.
I. Factual and Procedural Background
Richard Serna’s (“Serna” or “Plaintiff”) original Complaint, filed December 11, 2017,
specifically alleged causes of action against Defendants under the National Labor Relations Act
(“NLRA”) and for breach of duty to fairly represent Serna. (ECF No. 3).1 The Complaint also
appeared to assert a discrimination claim based on an alleged disability and a claim for breach of

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Plaintiff initiated this action on December 4, 2017, filing a motion to proceed in forma pauperis accompanied by a
Proposed Complaint. ECF No. 1.

APWU National’s Constitution. Id. On February 23, 2018, Defendants filed two motions to
dismiss Serna’s Complaint. See ECF Nos. 9, 10.
APWU National and the National Officers’ Motion sought dismissal on the following
grounds: (i) the Court’s jurisdiction is limited to Serna’s duty of fair representation (“DFR”)
claims, (ii) the union officers and/or board members cannot be individually liable on a DFR
claim, (iii) Serna’s DFR claim cannot go forward against APWU National because APWU
National did not “ratify” misconduct by Local 0195, and (iv) Serna’s DFR claims are barred by
the statute of limitations. ECF No. 9. Local 0195 and the Local Board Members’ Motion raised
some of the same arguments and also asserted that the Court lacked jurisdiction over Serna’s
claims for breach of APWU National’s Constitution. ECF No. 10. Serna responded in
opposition, incorporating his responses to both motions in a single pleading. ECF No. 11.
On August 29, 2018, the Court dismissed Serna’s claims against APWU National’s
Officers and Local 0195’s Executive Board Members; claims asserted under sections 7 and 8 of
the National Labor Relations Act; and Serna’s “stand alone” or “independent” claims alleging
breach of APWU National’s Constitution. ECF No. 47. In dismissing Serna’s claims, the Court
noted that a federal district court does not have jurisdiction over claims asserted under the
NLRA, nor can a district court hear independent claims under a union’s constitution because
“such claims do not involve allegations concerning the violation of a contract between an
employer and a union.” Id. (citing Martin v. Local 556, Transp. Workers Union of Am. AFL-CIO,
201 L.R.R.M. 3036, 2014 WL 4358480, at *3 (N.D. Tex. 2014) (granting 12(b)(1) dismissal
when “only conceivable contract” that had been alleged by plaintiff was the union’s
constitution). The Court’s Order also noted Serna’s withdrawal of his discrimination claim under
the Americans with Disabilities Act. Id. The Court’s Order afforded Serna an opportunity to

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amend his complaint to clarify any “potentially viable” duty of fair representation (“DFR”)
claims “against Defendant Local 0195, and —only if Plaintiff can provide factual allegations
demonstrating ‘ratification’ by APWU National—a DFR claim against APWU National.” Id.
Serna filed his Second Amended Complaint on March 1, 2019. ECF No. 72. APWU
National filed its Motion to Dismiss Plaintiff’s Second Amended Complaint on March 15, 2019.
(ECF No. 73). APWU National argues the action should be dismissed because Serna has failed
to plausibly allege any DFR claim. Local 0195 filed its Partial Motion to Dismiss on March 15,
2019. (ECF No. 76). Local 0195’s motion seeks to dismiss with prejudice the NLRA and ADA
claims alleged in Plaintiff’s Second Amended Complaint.
II. Standard of Review
To withstand a Rule 12(b)(6) motion to dismiss, a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed factual allegations” are not
required, a plaintiff must state “more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The contents of the
pleading must provide enough detail to “give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.” Id.
When presented with a motion to dismiss under Rule 12(b)(6), a court generally “must
assess whether the complaint contains sufficient factual matter, accepted as true, to state a claim
for relief that is plausible on its face[.]” United States v. Bollinger Shipyards Inc., 775 F.3d 255,
257 (5th Cir. 2014) (internal citations and quotation marks omitted). “A claim has facial

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plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Although a plaintiff’s factual allegations need not establish that the defendant is
probably liable, they must establish more than a “sheer possibility” a defendant has acted
unlawfully. Id. Determining plausibility is a “context-specific task,” and must be performed in
light of a court’s “judicial experience and common sense.” Id. at 679.
In assessing a motion to dismiss under Rule 12(b)(6), the court’s review is generally
limited to the complaint and any documents attached to the motion to dismiss that are referred to
in the complaint and are central to the plaintiff’s claims. Tellabs Inc. v. Makor Issues & Rights
Ltd., 551 U.S. 308, 322 (2007); In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th
Cir. 2007). When reviewing the complaint, the “court accepts all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff.” Martin K. Eby Constr. Co. v. Dallas
Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (internal quotation marks omitted)
(quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). While well-pleaded facts of a
complaint are to be accepted as true, legal conclusions are not “entitled to the assumption of
truth.” Iqbal, 129 S. Ct. at 1950 (citation omitted). Further, a court is not to strain to find
inferences favorable to the plaintiff and is not to accept conclusory allegations, unwarranted
deductions, or legal conclusions. R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005)
(citations omitted). A court does not evaluate the plaintiff’s likelihood of success; instead, it only
determines whether the plaintiff has pleaded a legally cognizable claim. United States ex rel.
Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 376 (5th Cir. 2004).
III. Discussion
A. Local 0195’s Partial Motion to Dismiss addresses claims previously dismissed

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Serna’s Second Amended Complaint realleges NLRA and ADA claims. ECF No. 72 at
14-16. The Court’s August 28, 2018 Order found Local 0195’s motion to dismiss Serna’s ADA
claim was moot because it was clear that Serna had “withdrawn his ADA claims against
Defendants regarding his separation from employment in February 2017.” ECF No. 47 at 8-9.
The Order also dismissed Serna’s NLRA claims. Id. at 5 (dismissing with prejudice any claims
asserted under the NLRA).
Defendant Local 0195 now moves to dismiss the NLRA and ADA claims with prejudice.
ECF No. 76. Serna concedes this Court does not have jurisdiction over NLRA claims and as
such, any NLRA claims should be dismissed. ECF No. 87. Serna also concedes his previously
withdrawn ADA claim was improperly included in the Second Amended Complaint and should
likewise be dismissed. Id. Because Serna’s NLRA and ADA claims were dismissed by previous
Order, Defendant Local 0195’s Partial Motion to Dismiss, ECF No. 76, is moot.
Serna is cautioned any further pleadings in this action, which raise NLRA, ADA, or
stand-alone claims asserting a violation of APWU National’s Constitution2 will be STRICKEN
and Serna will be directed to re-plead in accordance with the Court’s Orders. A plaintiff who
fails to comply with a court’s orders, despite being warned of the consequences and having been
granted sufficient time in which to do so, hinders the Court’s ability to move his case towards
disposition and indicates that plaintiff does not intend to litigate his action diligently.
Accordingly, Serna is reminded that failure to comply with a court order may result in a sanction,
which could include dismissal of the action. See Fed. R. Civ. P. 41(b); Nottingham v. Warden,
Bill Clements Unit, 837 F.3d 438 (5th Cir. 2016).
See ECF No. 47, in which the Court “clarifies that it does not have jurisdiction to adjudicate any standalone claims
asserting a violation of APWU National’s Constitution. . . . those claims are dismissed with prejudice;” finds “it is
clear that this Court does not have jurisdiction over any of Plaintiffs claims asserted under the NLRA. . . . those
claims are dismissed with prejudice;” and notes “the parties’ briefing make clear that Plaintiff has withdrawn his
ADA claims against Defendants.”
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B. Plaintiff’s Second Amended Complaint fails to allege APWU National ratified Local
0195’s alleged conduct
In its Order of August 29, 2018, the Court noted the only remaining “potentially viable
claim” against the Defendants is a DFR claim. As the Court explained:
“[m]ere constructive knowledge of possible illegal activity on the local level is
not sufficient to impose a duty to intervene on the International Union.” Brenner
v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1289
(3d. Cir. 1991). Instead, a DFR claim against an international union must allege
facts indicating that the international union contractually assumed or functionally
usurped the role of the local union as exclusive bargaining representative. See,
e.g., Tomlison v. Kroger Co., C2-03-706, 2006 WL 2850523 at *4 (S.D. Ohio
Sept. 29, 2006) (denying summary judgment when evidence was presented that
international union contractually undertook the grievance-prosecution duties of
the local union).
Report and Recommendation of United States Magistrate Judge, ECF No. 35 at 7, adopted by
Order of District Judge Orlando L. Garcia, August 29, 2018, ECF No. 47. Serna’s Second
Amended Complaint alleges APWU National ratified Local 0195’s conduct in the handling of
Serna’s grievances when APWU National reviewed and denied Serna’s internal grievance
appeal. ECF No. 72 at 13-15. Serna’s allegation that denial of his grievance appeal ratified Local
0195’s alleged conduct fails to sufficiently allege ratification for two reasons. First, Serna’s
Second Amended Complaint merely realleges the same facts that the Court already held were
insufficient to demonstrate ratification. See Court Orders, ECF Nos. 35 at 6-8; 47 at 6-7, 9. See
also Plaintiff’s Pleadings, ECF Nos. 50 at 7 (“dismissal of Plaintiff’s appeal is by omission
ratification”); 72 at 14 (“dismissal of Plaintiff’s appeal is by default a ratification”).
Second, the duty of fair representation arises only when the union acts as the collective
bargaining representative with respect to employment. See Vaca v. Sipes, 386 U.S. 171, 177
(1967) (holding that when selected as the exclusive representative of the employees in a
bargaining unit, a union has a duty to represent all members fairly). Where decisions are

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confined to internal union matters, and do not substantially impact “matters affecting
employment,” DFR does not attach. Kirk v. Transp. Workers Union, 934 F. Supp. 775, 791 (S.D.
Tex. 1995) (quoting Local 222, United Food and Commercial Workers Int’l Union, 1979 WL
10034, at *7 (N.L.R.B. Sept. 28, 1979), citing N.L.R.B. v. Miranda Fuel Co., Inc., 140 N.L.R.B.
181, 185 (1962). As the Fifth Circuit explained:
The existence of the DFR, however, does not permit federal court scrutiny of all
of a union’s internal affairs. Because the DFR is imposed on the union as a result
of its position as exclusive bargaining representative, it applies only to union
conduct arising from the union’s position as representative. Thus, in Smith v.
Local No. 25, Sheet Metal Workers, 500 F.2d 741, 746 (5th Cir. 1974), we stated
that the union owes “the duty to represent fairly the interest of each employee in
the unit in dealings with the employer.” Therefore, union conduct that affects only
an individual’s relationship within the union structure is not circumscribed by the
constraints of the DFR. Subject to the provisions of its constitution and bylaws
and the constraints imposed by statute, the union is necessarily invested with
broad discretion to make internal union decisions in a manner the leadership
considers beneficial both to the union membership at-large and to any individuals
involved.
Bass v. Int’l Bhd. of Boilermakers, 630 F.2d 1058, 1062-63 (5th Cir. 1980). Here, Serna has not
alleged that the outcome of his internal appeal would have a substantial impact on Serna’s
relationship with USPS. See Kirk, 934 F. Supp. at 791 (S.D. Tex. 1995) (quoting Kolinske v.
Lubbers, 712 F.2d 471, 481 (D.C. Cir. 1983) (“the NLRB and courts have usually excluded
internal union affairs from being within ‘a matter affecting employment,’ unless the internal
union matter has some ‘substantial impact’ on an employee’s relationship with his employer”).
Consequently, Serna cannot allege APWU National ratified Local 0195’s conduct with respect to
the alleged failure to process Serna’s grievances, because APWU National owed no DFR to
Serna in the context of Serna’s internal grievance appeal.

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III. Conclusion
For the foregoing reasons, the Court GRANTS Defendant American Postal Workers
Union, AFL-CIO’s Motion to Dismiss Plaintiff’s Second Amended Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6) (ECF No. 73).
The Court DENIES Defendant American Postal Workers Union San Antonio Alamo
Area Local 0195’s Partial Motion to Dismiss (ECF No. 76) as MOOT.
Defendant American Postal Workers Union, AFL-CIO is DISMISSED from the action.
It is so ORDERED.
SIGNED this 28th day of October 2019.

JASON PULLIAM
UNITED STATES DISTRICT JUDGE

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