Crampton v. Kroger Co.

• Decision Date: 30 September 2016
• Docket Number: Case No: 14-14136
• Parties: Tammy CRAMPTON, et al., Plaintiffs, v. The KROGER CO. d/b/a Kroger # 576, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

213 F.Supp.3d 910

Tammy CRAMPTON, et al., Plaintiffs,

v.The KROGER CO. d/b/a Kroger # 576, et al., Defendants.

Case No: 14-14136

United States District Court, E.D. Michigan, Southern Division.

Signed September 30, 2016

Nicholas Roumel, Ann Arbor, MI, for Plaintiffs.

Barbara E. Buchanan, Terrence J. Miglio, Varnum LLP, Detroit, MI, J. Douglas Korney, Law Office of J. Douglas Korney, Farmington Hills, MI, for Defendants.

ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (DOC. # 24) AND (DOC. # 25) AND DEEMING MOOT PLAINTIFFS' MOTION FOR SHOW CAUSE (DOC. # 30)

Denise Page Hood, Chief Judge

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.

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 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 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if it could affect the outcome of the case based on the governing substantive law. Id. at 248, 106 S.Ct. 2505. 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2548. 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 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, 106 S.Ct. 2505. "Conclusory allegations do not create a genuine issue of material fact which precludes summary judgment." Johari v. Big Easy Restaurants, Inc. , 78 Fed.Appx. 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, 106 S.Ct. 2505.

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.

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 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, 87 S.Ct. 903, 17 L.Ed.2d 842 (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, 87 S.Ct. 903, 17 L.Ed.2d 842 (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...