Balser v. Int'l Union of Elec., Electrical, Salaried, Machine & Furniture Workers (IUE) Local 201

• Decision Date: 16 November 2011
• Docket Number: No. 10–2488.,10–2488.
• Citation: 192 L.R.R.M. (BNA) 2001,661 F.3d 109
• Parties: Wendy BALSER, Plaintiff, Appellant, v. INTERNATIONAL UNION OF ELECTRONIC, ELECTRICAL, SALARIED, MACHINE & FURNITURE WORKERS (IUE) LOCAL 201 and General Electric Company, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

192 L.R.R.M. (BNA) 2001

661 F.3d 109

Wendy BALSER, Plaintiff, Appellant,

v.INTERNATIONAL UNION OF ELECTRONIC, ELECTRICAL, SALARIED, MACHINE & FURNITURE WORKERS (IUE) LOCAL 201 and General Electric Company, Defendants, Appellees.

No. 10–2488.

United States Court of Appeals, First Circuit.

Heard June 8, 2011.Decided Nov. 16, 2011.

Mitchell J. Notis, with whom Law Office of Mitchell J. Notis, was on brief for appellant.

Laura M. Raisty, with whom Keith B. Muntyan and Morgan, Brown & Joy, was on brief for General Electric Company.

Brian J. Rogal, with whom Angoff, Goldman, Manning, Wanger, Hynes & Dunlap, P.C., was on brief for IUE Local 201.

Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

Plaintiff–Appellant Wendy Balser (“Balser”) appeals the district court's award of summary judgment to her employer, General Electric Company (“GE”), and her collective bargaining agent, International Union of Electronic, Electrical, Salaried, Machine & Furniture Workers Local 201 (“Local 201” or “Union”), on her allegations of wrongdoing by both companies for violations of her rights as an employee pursuant to section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185. Specifically, Balser claims that (1) GE violated the collective bargaining agreement between itself and the Union when it reclassified a position for which she was hired, resulting in her subsequent removal from that position; and (2) the Union violated its duty of fair representation in colluding with GE to reclassify her position and in refusing to take her filed grievance to arbitration. We conclude that the district court properly granted summary judgment as to Balser's claims and affirm the district court's decision. Balser v. IUE Local 201 & Gen. Elec. Co., No. 08–11376–LTS, 2010 WL 3927719 (D.Mass. Oct. 4, 2010).

I. Background

A. Balser's Work at River Works

GE, a multinational company that does business in the Commonwealth of Massachusetts, is composed of several divisions. One of its divisions is General Electric Aircraft Engines, which manufactures jet engines for both commercial and military use and has a manufacturing facility, River Works, in Lynn, Massachusetts. GE hired Balser in July 2007 to work as a “Zyglo Inspector” ¹ at the River Works facility; this position required her to engage in the nondestructive testing of parts to be used in the construction of aircraft engines. In preparation for this position, Balser was required to undergo approximately four hundred hours of on-the-job training, after which she became certified to perform Zyglo-related work.

Local 201 is a labor union that exclusively represents GE employees at the River Works facility. Since the start of her employment at River Works, Balser has, by virtue of her position, been a member of Local 201 and subject to the terms of a Collective Bargaining Agreement (“CBA”) between GE and Local 201 that governs the basic terms and conditions of employment for all union members employed at River Works. The CBA consists of three agreements: (1) the 2007–2011 National Agreement between GE and IUE–CWA, the Industrial Division of the Communications Workers of America, AFL–CIO, CLC and its affiliated locals, which include Local 201 (“National Agreement”); (2) the 1974 Local Understanding Upgrading and Job Posting Agreement; and (3) the 1977 Supplemental Agreement's Layoff and Transfer Supplement. The third agreement, the Layoff and Transfer Supplement, provides that day-work employees who have been laid off “will be transferred to any equally rated or higher rated open classification in the [River Works] Plant, exclusive of upgrading, for which they are qualified considering their [River Works] Plant employment record.”

B. Balser's Layoff and the Search for Zyglo Sorters²

It is common practice for GE to complete “Requests for Help” when it anticipates needing additional employees in a particular field or position, whether due to increased need or in order to replace a retiring or temporarily absent employee. GE also commonly tries to fill such positions in advance of the expected vacancy.

In January 2008, GE predicted a need for two “Zyglo Sorters,” a position that also involved the non-destructive testing of aircraft engine components. Zyglo Sorter positions generally were highly coveted in GE because employees were paid according to the amount of work completed and not on an hourly basis, creating the potential to earn significantly more money than other positions. For this reason, Zyglo Sorter openings typically were filled by senior employees eligible for an upgrade; however, such positions also could—though in practice tended not to—be filled by employees transferring from one job to another due to lack of work.

At that time, GE management believed two current Zyglo Sorters—Robert Murciak (“Murciak”) and John Doherty (“Doherty”)—would be retiring soon. ³ It filed two Requests for Help—Nos. 11983A and 11984A—on January 28, 2008, and officially posted the positions on February 12, 2008.

On approximately February 11, 2008, Balser received a “lack of work” notice informing her that she was going to be laid off because there was not sufficient work to be divided amongst the Zyglo Inspectors.⁴ On February 13, 2008, Balser met with GE's Manager for Union Relations, Richard Sampson, to discuss other jobs for which she might be qualified and which might be available to her on account of her layoff, pursuant to the CBA's Layoff and Transfer Supplement, see supra Part I.A. Sampson informed Balser of three jobs for which she might be eligible due to her layoff. One of the offered employments was the recently posted Zyglo Sorter position.⁵ Sampson explained that the Zyglo Sorter position was an option for Balser, not only because of her recent layoff, but also because of her prior Zyglo certification. Sampson, understanding the job to be permanent at that time, informed Balser as such.

Balser expressed an interest in the Zyglo Sorter position and an interview was arranged with Zyglo Sorter Manager, Thomas Towey (“Towey”). Before her interview, Sampson prepared an Interview Referral Form stating that Balser was applying for Request for Help No. 11983A and that she would be replacing “Skip Doherty” in the Zyglo Sorter position. Sampson informed Balser that Doherty's name on the interview form had no actual significance, i.e., it did not affirmatively mean that she would be Doherty's replacement if she were hired.

On February 14, 2008, Balser interviewed for and was offered the Zyglo Sorter position. Balser accepted the position that same day. She was scheduled to start work on February 19, 2008.⁶ Balser in fact did not start work until February 20, 2008, a pivotal fact that will be addressed subsequently.

C. The Ides of February

The following events transpired between Sampson's February 13 “job opening” meeting with Balser and her February 20 “punch in” or start date.

1. Union Member to Casilli: Balser is a Sorter?

On or around February 13, 2008, Union Business Agent Rick Casilli (“Casilli”) received a phone call from a union member expressing frustration that Balser either had been offered and/or accepted the recently posted Zyglo Sorter position. The union member, speaking on behalf of himself and other members, was upset that Balser, who at the time only had approximately seven months of service with GE, had been offered a position typically reserved for only the most senior employees. Because it is Local 201's duty to investigate how GE fills its positions—particularly if a hiring might contradict the CBA or GE past practice—and to process grievances if it determines that a position was not filled according to CBA procedures or GE custom, the Union decided to investigate GE's possible hiring of Balser, a lack of work employee, for the Zyglo Sorter position.⁷

2. Casilli to Sampson: Lack of Work Gets Priority Over Upgrade?

According to Casilli's deposition testimony, on receiving the February 13 call from the union member, he “[i]mmediately” contacted Sampson to investigate the possible hiring of Balser. Casilli informed Sampson as to the disgruntled rumblings from union members. Casilli asked Sampson how Balser, having only worked at the company for less than a year, could have been offered or hired for a position typically reserved for more senior-level employees. Casilli stated that Sampson told him he did not believe Balser's hire was due to upgrade—as was generally the practice for such a seniority-preferred position—but rather, lack of work. Casilli said he told Sampson during that conversation that “[t]his could be a big problem” because the Zyglo Sorter positions only had been posted as of February 12. Further, GE generally only posted jobs it intended to fill by upgrade, and it went against company practice to post an opening for a position only to fill it on a lack of work basis.

Casilli testified that he informed Sampson he would need additional information concerning Balser's potential hiring as a Zyglo Sorter, including details about the postings, Balser's layoff, and the positions themselves, to assess whether Balser or another union member had a right to the position. Casilli stated he conferred with Sampson on Wednesday (February 13), Thursday (February 14), the following Tuesday (February 19), and the following Wednesday (February 20) regarding the matter.⁸

According to the record, Casilli met with Sampson in person on February 14, 2008 and engaged in subsequent email correspondence with him that day. During these interactions, Casilli informed Sampson that Local 201 would not support the placement of a recently-hired employee in the Zyglo Sorter position. Casilli told Sampson that he intended to file a grievance on two accounts: (1) GE had not placed lack of work employees into high paid jobs, like the Zyglo Sorter position, in over ten years; and (2) it was accepted GE practice for posted piecework positions, like...