Benson v. Communication Workers of America

• Decision Date: 11 October 1994
• Docket Number: Civ. A. No. 2:93cv552.
• Citation: 866 F. Supp. 910
• Court: U.S. District Court — Eastern District of Virginia
• Parties: James T. BENSON, Plaintiff, v. COMMUNICATION WORKERS OF AMERICA and Contel of Virginia, Inc., Defendants.

866 F. Supp. 910

James T. BENSON, Plaintiff, v. COMMUNICATION WORKERS OF AMERICA and Contel of Virginia, Inc., Defendants.

Civ. A. No. 2:93cv552.

United States District Court, E.D. Virginia, Norfolk Division.

October 11, 1994.

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Edwin Vieira, Jr., Manassas, VA, Hugh L. Reilly, Nat. Right to Work Legal Defense Foundation, Springfield, VA, for plaintiff.

G. Michael Price, Connor, Pennington & Price, Norfolk, VA, Gerard C. Boyle, James B. Coppess, Boyle, Tyburski, Toll & Rosenblatt, Washington, DC, for defendant Communications Workers of America.

MEMORANDUM OPINION AND ORDER

MacKENZIE, District Judge.

This matter is before the Court on objections to the United States Magistrate Judge's Report and Recommendation entered on June 24, 1994.

I. FACTS AND PROCEDURAL HISTORY

Under § 9(a) of the National Labor Relations Act (NLRA), defendant Communications Workers of America (CWA) was designated as the exclusive representative for a bargaining unit of co-defendant Contel of Virginia, Inc.¹ employees. James Benson, the plaintiff, and Barbara Kirker are and have been members of this bargaining unit of hourly employees at all times relevant to this dispute. CWA and Contel entered into a Collective Bargaining Agreement (the Agreement) that specifies the terms under which the members of this bargaining unit are employed. The Agreement contains a dispute resolution procedure, known as a "grievance," which specifies several steps at which Contel and CWA must meet in an effort to resolve the dispute between themselves, ultimately leading to a hearing before an arbitrator if these steps are unsuccessful.

Upon the posting of a "Notice of Job Opening" for a Service Technician position that had become available, both Benson and Kirker applied for the position. A clause in the Agreement between Contel and CWA required Contel to select the "best qualified senior applicant." Although Kirker had been employed by Contel longer than Benson, Benson was selected for the position. Kirker then filed a grievance with CWA.

Benson brought this action claiming that CWA breached its duty of fair representation owed under § 9(a) of the NLRA in pursuing the interests of Kirker to Benson's detriment. The alleged breach occurred in CWA's pursuit of a promotion bypass grievance on behalf of Kirker without providing Benson notice of or opportunity to be heard at any stage of the grievance or at arbitration. The grievance resulted in an arbitration award in favor of Kirker and in Benson's subsequent demotion. Benson claims that Contel is derivatively in breach of the Collective Bargaining Agreement by following the grievance award and assigning Kirker to the position for which Benson had originally been selected. Benson alternatively claims that, if CWA has met its obligations under the duty of fair representation, then his rights under the First and Fifth Amendments to the Constitution have been violated. Benson seeks declaratory, injunctive, and compensatory relief.

This case was originally filed on May 28, 1993. On January 10, 1994, both Benson and CWA filed motions for summary judgment. After a hearing on the issues, Magistrate Judge William T. Prince filed proposed recommendations for disposition of the summary judgment motions on June 24, 1994. The Magistrate's Report and Recommendation recommended that CWA's motion for summary judgment be granted and that plaintiff's motion be denied.

The United States Code provides that if a party serves and files written objections to the Magistrate Judge's Report and Recommendation, the District Judge is required to make a de novo determination of those portions of the report to which objection is made, see 28 U.S.C. § 636(b)(1), and either affirm, reject, or modify the Magistrate Judge's recommendation.

After plaintiff filed objections to the Report and Recommendation and CWA responded, this Court heard oral arguments on September 23, 1994. The undersigned Senior United States District Judge has examined the record, heard oral argument from both counsel, and has considered the record and objections to the Magistrate Judge's Report and Recommendation de novo. For the reasons stated below, the Court agrees with the Magistrate Judge's determinations regarding those portions of the Report and Recommendation to which plaintiff objected. Hence, the Report and Recommendation filed by Magistrate Judge Prince on June 24, 1994 is accepted and affirmed as filed.

II. DISCUSSION

A. Duty of Fair Representation

The Magistrate Judge found that CWA acted in reliance upon an earlier interpretation of the meaning of "best qualified senior applicant" that had been rendered in an arbitration concerning the same parties to the collective bargaining agreement. The standard to be applied is whether CWA's actions were "so far outside a wide range of reasonableness as to be irrational." Airline Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991). CWA's reliance on the earlier arbitrator's decision was not arbitrary, and therefore, CWA's pursuit of the Kirker grievance was reasonable, despite the union's indifference to Benson's position. Specifically, the union's duty of fair representation did not require it to do more than articulate and pursue a non-arbitrary interpretation of the Agreement although the successful pursuit of its interpretation would detrimentally affect one of its members. The Magistrate Judge also analyzed a myriad of cases addressing a union's duty to give notice to adversely affected members and did not find a clear, per se rule requiring it.

Benson objected to the Magistrate Judge's finding by arguing that it does not take into account the basic obligation of CWA to represent all employees in the bargaining unit. Since Benson was awarded the position, he had rights under the Agreement which CWA had a fiduciary duty to protect. Benson further argues that CWA's failure to take his interests into consideration and its reliance on the previous arbitrator's decision was unreasonable and arbitrary.

Benson misunderstands the role of a union in its exercise of the power to speak for its employees. It would almost always be impossible for a union to represent all employees after a grievance has been filed. A grievance normally involves parties on opposite sides of an issue and the union could not promote both positions. The union has the right and obligation to advance collective interests, in doing so, it must also choose between sometimes opposing interests. Humphrey v. Moore, 375 U.S. 335, 349-50, 84 S.Ct. 363, 371-72, 11 L.Ed.2d 370 (1964). Therefore, the Magistrate Judge correctly rejected the argument that the duty of fair representation prevents the union from forcefully advocating a single interpretation of the Agreement that the union has reasonably determined benefits the group as a whole. CWA did not breach its duty to Benson when it represented Kirker.

Benson also argues that CWA had a duty to provide him with notice and an opportunity to seek to participate in the arbitration. He objects to the Magistrate Judge's finding that there was no duty of fair representation violation because there is no per se rule mandating notice and hearing. He states that a reasonably prudent person could not conclude that notice is not required. Benson relies on Steele v. Louisville and Nashville R.R., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944) for the proposition that whenever necessary a union must give notice and hearing to its members. However, Steele is distinguishable from the present case because the statement was made in reference to non-union or minority members of the craft, in the context of discrimination. Steele, 323 U.S. at 204, 65 S.Ct. at 232-33.

B. Breach of Contract

The Magistrate Judge found that in order to prevail, Benson must not only demonstrate a breach of duty by the union, but also show that his demotion was contrary to the contract. However, even if he had found that CWA violated its duty, the arbitration decision was still not erroneous. Benson's argument that he was prejudiced by not being called to participate in the arbitration process was not convincing because the arbitrator's decision shows he was fully aware of the nature of Benson's qualifications. Benson's proffered testimony would not have impacted the arbitrator's decision based on his interpretation of the Agreement.

Benson specifically objects to the breach of contract issue because he was unable to testify before the arbitrator. Benson argues his testimony could have established the relationship between experience and qualifications listed on the job posting and the arbitrator could have ruled in his favor. Further, the testimony of Contel did not adequately present a case for Benson, although he could have explained the connection had he testified.

However, the arbitrator was fully aware of the nature of Benson's qualifications because Benson actively assisted Contel in preparing its case for arbitration. Evidence that Benson says was missing at the arbitration was presented by Contel. Presumably, the arbitrator would be more interested in Contel's assessment of Benson than in Benson's assessment of himself. Furthermore, there is no evidence to indicate that he was inclined to intervene in the arbitration for the purpose of bolstering the Company's case. Benson determined that the best protection of his interests lay in helping Contel prepare its case.

C. The Constitutional Claim

Benson asserts as a final theory for relief that if there was no breach of the duty of fair representation in CWA's failure to give Benson notice of and opportunity to participate in the arbitration, then § 9(a) of the NLRA is unconstitutional as applied. The Magistrate Judge concluded that Benson's constitutional arguments are meritless. The heart of Benson's argument is that he is constitutionally entitled to represent himself,...