Bonser v. Safeway, Inc.

• Decision Date: 18 December 1992
• Docket Number: Civ. A. No. 92-K-148.
• Parties: Jodi BONSER, Plaintiff, v. SAFEWAY, INC., a Delaware corporation, Defendant.
• Court: U.S. District Court — District of Colorado

809 F. Supp. 799

Jodi BONSER, Plaintiff, v. SAFEWAY, INC., a Delaware corporation, Defendant.

Civ. A. No. 92-K-148.

United States District Court, D. Colorado.

December 18, 1992.

Donald B. Gentry, Grant McHendrie, Denver, CO, for plaintiff.

Gregory A. Eurich, David D. Powell, Holland & Hart, Denver, CO, for defendant.

MEMORANDUM OPINION AND ORDER

KANE, Senior District Judge.

Plaintiff Jodi Bonser brings this action for breach of a collective bargaining agreement under federal labor law and breach of contract under state law. Defendant Safeway, Inc. moves for summary judgment, contending that Bonser's federal claim is defective because she did not exhaust her contractual remedies. In addition, Safeway argues that Bonser's state law claim is preempted by federal law. For the reasons stated below, I grant summary judgment in favor of Safeway.

I. FACTS.

Bonser's claims stem from working conditions at Safeway Store No. 33 in Castle Rock, Colorado. On May 2, 1991, Bonser, a cake decorator for Safeway, filed a written grievance with her union, Local No. 7 of the United Food and Commercial Workers International Union (the "Union"). Bonser alleged that she "has been and is being harassed" by two of her supervisors, (Compl., Ex. 2), because she requested but was denied days off and was wrongly accused of poor job performance. (See Pacheco Dep. at 16; Bonser Dep. at 67.)

The collective bargaining agreement ("CBA") between Safeway and the Union provides for a three-step grievance process. Step one is an informal conference among the employee, a union representative and the store manager. Step two requires the grievance, if not resolved at step one, to be reduced to writing and a second, more formal conference between the union and a Safeway designee to take place. If the grievance is not satisfactorily adjusted at step two, the third and final step is arbitration by a member of the Federal Mediation and Conciliation Service. (Compl., Ex. 1 at 54-55.)

On May 22, 1991, Safeway and the Union reached a settlement of Bonser's May 2 grievance at step two (the "Settlement"). In the written comments on the grievance form, Safeway management agreed "to talk to Bonser's supervisors in regards to harassment of Jodi and sic it be stopped." (Compl., Ex. 2.) According to Bonser, however, the harassment continued. Over the next several months, Bonser filed a number of additional grievances with the Union. Bonser reported that she was again denied days off despite her seniority, unfairly "written up" for job deficiencies and required to perform strenuous work outside her duties, even though she was pregnant. (See Mem. Br. Supp. Def.'s Mot. Summ. J., Ex. B.) Some of these grievances were resolved in a subsequent settlement reached on February 14, 1992. (Id., Ex. E.)

On January 27, 1992, Bonser filed this action, alleging that Safeway breached the Settlement by continuing to harass her. Bonser claimed that Safeway's actions were a violation of section 301 of the Labor Management Relations Act of 1947 (the "Act"), 29 U.S.C. § 185, and a breach of contract under state law. Safeway moved to dismiss the complaint on February 18, 1992, arguing that Bonser's exclusive remedy was through the grievance procedure of the CBA. In a memorandum opinion and order entered by Judge Arraj on April 16, 1992, 1992 WL 78066, the court denied Safeway's motion to dismiss, reasoning that Bonser "had pursued her remedies as far as she was able and as far as was necessary" under the CBA, and that she was entitled to enforce the Settlement, even though Bonser did not seek arbitration or file another grievance. (See Mem. Op. Order at 4.) The case was reassigned to me on November 17, 1992.

Safeway now moves for summary judgment on Bonser's federal labor law claim, renewing its contention that Bonser failed to exhaust her contractual remedies. In addition, Safeway requests summary judgment on Bonser's state law breach of contract claim on preemption grounds. Bonser responds that Safeway's arguments relative to her federal claim were disposed of in Judge Arraj's April 16 memorandum opinion and that her state law claim is not preempted because it does not require consideration of the terms of the CBA.

II. MERITS.

The central question in this case is whether Bonser can bring action against Safeway for breach of the Settlement when she has not sought to enforce it through the CBA grievance procedure. To decide this question, I apply the familiar standards for summary judgment. Summary judgment is proper when the record, viewed in the light most favorable to the party opposing the motion, shows no genuine dispute over a material fact and that the moving party is entitled to judgment as a matter of law. See Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991); Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110-11 (10th Cir. 1991). A moving party may rely on the pleadings, affidavits, depositions and other materials to show the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c). The party opposing the motion must then set forth specific facts showing a genuine issue for trial and may not merely rely on the pleadings. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990).

Both parties agree that the general rule regarding actions for breach of a collective bargaining agreement is that an employee must attempt to exhaust her contractual remedies before she can bring suit under section 301 of the Act. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965). This is not an absolute rule. Exhaustion is not required where the plaintiff can show that the union breached its duty of fair representation or where further resort to contractual remedies under a collective bargaining agreement would be futile. See Vaca v. Sipes, 386 U.S. 171, 185-86, 87 S.Ct. 903, 914-15, 17 L.Ed.2d 842 (1967).¹

In this action, Bonser alleges that further prosecution of her harassment claim under the grievance procedure would be futile because Safeway could again agree to a settlement but fail to adhere to it. Safeway responds that Bonser cannot establish futility without at least attempting to enforce the Settlement through arbitration, step three of the grievance process, or by initiating a new grievance. Case law construing exhaustion requirement under the Act does not bear out Safeway's contention.

For example, in National Post Office Mail Handlers Local No. 305 v. United States Postal Service, 594 F.2d 988 (4th Cir.1979), the appellate court reinstated a union's claim against the Postal Service for failure to adhere to several settlement agreements. There, the union representing postal employees instituted a grievance against the Postal Service under the procedures of its collective bargaining agreement. The union negotiated a favorable resolution before the grievance went to arbitration, but the Postal Service failed to implement the resolution. The union then filed a new grievance for breach of the resolution, and again it prevailed. When the Postal Service still failed to comply, the union brought suit under section 301 of the Act (and similar legislation governing the Postal Service), seeking a declaration that the Postal Service was obligated to implement the grievance settlements. See id. at 990-91.

The Postal Service moved to dismiss the union's complaint, arguing that the union had failed to exhaust its remedies by proceeding to arbitration, even though the settlements were reached at earlier steps in the grievance process. The district court agreed and dismissed the action. On appeal, the Fourth Circuit reversed:

We think that on the allegations of the instant case further exhaustion of contractual remedies is not required. The local union alleges that it employed the grievance procedures specified in the contract and prevailed, and it then employed the grievance procedures by reason of defendant's failure to implement the prior resolutions and again prevailed. But, notwithstanding, defendants have still failed and refused to implement the resolutions. It is, of course, true that the collective bargaining agreement does not specify that the favorable resolution of a grievance short of arbitration is final and binding, but neither the national union nor the local union has a right to go to binding arbitration when it has prevailed at a grievance step prior to arbitration. Under the circumstances presented here, if the Postal Service remains adamant in its refusal to implement grievance settlements, aggrieved employees or the union acting in their behalf would be subjected to an endless, fruitless succession of grievance complaints and never realize the benefits of an award. Further exhaustion manifestly would be ineffective.

Id. at 991-92.

Admittedly, the situation in National Post Office Mail Handlers differs from this case in that the union first attempted to enforce its settlements through renewed use of the grievance procedure. In more recent cases, however, courts have upheld the right of unions and employees to enforce binding settlements reached at an intermediate step in the grievance process even absent successive, contractual attempts at enforcement. See, e.g., Bakers Union Factory, No. 326 v. ITT Continental Baking Co., 749 F.2d 350, 355 (6th Cir.1984); United Mine Workers Dist. No. 5 v. Consolidation Coal Co., 666 F.2d 806, 809 (3d Cir.1981); United Mine Workers, Dist. No. 2 v. Barnes & Tucker Co., 561 F.2d 1093, 1096 (3d Cir.1977). Thus, "settlement agreements are treated as arbitration awards for enforcement purposes" under the Act. United Mine Workers, Dist. 4 v. Cyprus Emerald Resources Corp., 681 F.Supp. 271, 278-79 (W.D.Pa.1988).

Here, the CBA permits arbitration of a grievance "if the grievance is not satisfactorily adjusted in Step 2." (Compl., Ex. 2 at 54.) Consequently, like in National Post Office Mail Handlers, Bonser could...