Howse v. Roswell Independent School Dist.

• Decision Date: 21 April 2008
• Docket Number: No. 27,171.,27,171.
• Citation: 188 P.3d 1253,2008 NMCA 095
• Parties: Dana HOWSE, Plaintiff-Appellant, v. ROSWELL INDEPENDENT SCHOOL DISTRICT and Communication Workers of America, AFL-CIO, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

188 P.3d 1253

2008 NMCA 095

Dana HOWSE, Plaintiff-Appellant, v. ROSWELL INDEPENDENT SCHOOL DISTRICT and Communication Workers of America, AFL-CIO, Defendants-Appellees.

No. 27,171.

Court of Appeals of New Mexico.

April 21, 2008.

Certiorari Denied, No. 31,111, June 12, 2008.

Martin Law Firm, W.T. Martin, Jr., Kenneth D. Dugan, Carlsbad, NM, for Appellant.

French & Associates, P.C., Stephen G. French, Michelle Lalley Blake, Kerri L. Allensworth, Albuquerque, NM, for Appellee Roswell Independent School District.

Youtz & Valdez, P.C., Shane C. Youtz, Albuquerque, NM, Richard Rosenblatt & Associates, Richard Rosenblatt, Greenwood Village, CO, for Appellee Communication Workers of America, AFL-CIO.

OPINION

PICKARD, Judge.

{1} Dana Howse (Howse) appeals the district court's dismissals of her claim against her union, Communication Workers of America AFL-CIO (CWA), for breach of its duty to represent her fairly in a pay scale grievance she wished to file against her employer, the Roswell Independent School District (RISD), pursuant to the collective bargaining agreement (CBA) between RISD and CWA and her claim against RISD for breach of the CBA. The district court granted CWA's motion for summary judgment and RISD's motion to dismiss. We reverse the summary judgment because there were issues of fact concerning the reasons CWA failed to file a written grievance in the pay scale dispute. We reverse the dismissal because Howse's complaint against RISD in this hybrid action was timely filed pursuant to the discovery rule applicable in such actions.

BACKGROUND

{2} Howse began her employment with RISD in November 1981 and spent her first sixteen years with the school district as a teacher's aide, eventually earning $12,000 a year. At the end of her term in this position, Howse was at salary step twelve on the applicable RISD pay scale. When the teacher's aide program was abolished, Howse spent two years with RISD as a truancy clerk earning the same salary. In 2000, she voluntarily transferred to a position as a security guard, and for the first time in her career with RISD, she became a member of CWA. CWA represents RISD employees in a collective bargaining unit that includes security workers. When Howse joined the union, a CBA was in effect between RISD and CWA that named CWA the "sole and exclusive bargaining agent with respect to [the bargaining unit's] wages, hours and other terms and conditions of employment."

{3} When RISD transferred Howse to her security guard position, she was assigned to salary step zero on the pay scale for campus aides, and her annual salary became $19,188. Howse believed that RISD had incorrectly assigned her to step zero because she had been employed by RISD for many years, and in August of 2000, she spoke with Pauline Ponce, assistant superintendent of RISD, about her step assignment. Ponce told Howse that she would check into the issue and get back to her. Ponce never responded to Howse's inquiry. About two to three months later, Howse discussed her step assignment with Raul Castro, a co-worker and union steward. They agreed that Howse would write a letter to Dr. Cory Butler, assistant superintendent for human resources at RISD, addressing the issue. Butler responded to Howse in writing, stating that the CBA did not apply to her because when she was transferred to her security guard position she was "neither upgraded nor downgraded within the CWA salary schedules." He also wrote that Howse had been "moved from a salary schedule not covered under the CWA agreement to a position on the CWA agreement."

{4} Following receipt of Butler's letter in May 2001, Howse contacted Castro and requested that CWA submit a grievance addressing her salary step assignment. Castro told her that he would speak with Larry Yankee, chief steward for the bargaining unit. At some point soon thereafter, Yankee spoke directly with Howse and told her that he spoke with Butler, but that Butler was inflexible. Yankee asked Howse if she would agree to a compromise step assignment, but Howse told him that she felt she was entitled to a step fifteen assignment and would not settle. Neither Castro nor Yankee told Howse that CWA would not follow through with her grievance on this issue at that time.

{5} The initially required written grievance was never filed on Howse's step assignment. In November 2001, Castro told Howse that Yankee had informed him that CWA could not pursue her matter any further because "the timeline had expired." But at no point did either Castro or Yankee tell Howse that CWA would not or could not pursue her matter any further because they had never filed the initially required written grievance. Meanwhile, Howse was relying on CWA to pursue her grievance. CWA never told Howse that her step assignment claim was not valid, and in fact, Howse understood Yankee to have indicated that he believed her claim was valid. Howse did not learn that CWA had never filed the initially required grievance until May 9, 2002.

DISCUSSION

A. CWA's Motion for Summary Judgment

1. Standard of Review

{6} Our review of summary judgment is de novo. Stennis v. City of Santa Fe, 2008-NMSC-008 ¶ 12, 143 N.M. 320, 176 P.3d 309. "Summary judgment is proper if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Roth v. Thompson, 113 N.M. 331, 334, 825 P.2d 1241, 1244 (1992). We "view the facts in a light most favorable to the party opposing the motion and draw all reasonable inferences in support of a trial on the merits." Handmaker v. Henney, 1999-NMSC-043, ¶ 18, 128 N.M. 328, 992 P.2d 879.

2. Howse's Claim Against CWA

{7} As the exclusive bargaining agents of the members of Howse's bargaining unit, CWA and its officers and agents were under a duty to fairly represent Howse. See Jones v. Int'l Union of Operating Eng'rs, 72 N.M. 322, 330, 383 P.2d 571, 576 (1963). "The duty does not end at the bargaining table but extends throughout the contract, and, among other things, it involves a day-to-day adjustment of working rules and the protection of employee's rights secured by the contract." Id. However,

[t]he union has great discretion in handling the claims of its members, and in determining whether there is merit to such claim which warrants the union's pressing the claim through all of the grievance procedures, including arbitration, and the courts will interfere with the union's decision not to present an employee's grievance only in extreme cases.

Id. at 331, 383 P.2d at 577. In fact, a "union's refusal or failure to take the grievance to arbitration has to be arbitrary, discriminatory or in bad faith" to constitute a breach of its duty of fair representation. Callahan v. N.M. Fed'n of Teachers-TVI, 2006-NMSC-010, ¶ 13, 139 N.M. 201, 131 P.3d 51. Howse contends that issues of fact remain as to whether CWA's decision not to pursue her grievance was arbitrary. We agree, and we reverse the district court's grant of summary judgment.

{8} "A union's conduct can be classified as arbitrary only when it is irrational, when it is without a rational basis or explanation." Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 46, 119 S.Ct. 292, 142 L.Ed.2d 242 (1998). "[A]bsent justification or excuse, a union's negligent failure to take a basic and required step, unrelated to the merits of the grievance, is a clear example of arbitrary and perfunctory conduct which amounts to unfair representation." Ruzicka v. Gen. Motors Corp., 649 F.2d 1207, 1211 (6th Cir.1981). As discussed below, CWA can point to no admissible evidence that explains its reasons for not taking the basic step of filing the initially required written grievance on Howse's behalf. Absent justification or excuse, this failure may be found under the law to be "unexplained union inaction, amounting to arbitrary treatment, [that] has barred an employee from access to an established union-management apparatus for resolving grievances." Id. (internal quotation marks and citation omitted).

{9} The district court's written decision focused on the question of whether CWA's decision not to pursue Howse's grievance was without a rational basis or explanation. The court granted summary judgment because Howse admitted at her deposition that she had no facts that CWA's decision not to pursue her grievance was based on anything other than its judgment that CWA could not prevail in arbitration. The court ruled that CWA simply disagreed with Howse based on its review of the circumstances and did not willfully and unreasonably act arbitrarily as a matter of law, finding that Yankee, who participated in the negotiations for the CBA, felt that RISD had full discretion to determine an employee's starting pay and did not violate any provision of the CBA when it determined a new hire's starting salary so long as that starting salary fit within the CBA's salary schedule. The court found that because Howse's starting salary fit within the CBA's salary schedule, Yankee determined that there was no meritorious grievance that CWA could file alleging that Howse's starting salary violated the CBA and that, based on this belief, Yankee told Howse that there was nothing else CWA could do for her.

{10} However, the only evidence in the record supporting these findings by the district court is contained in Yankee's signed, written "declaration." In his declaration, Yankee discussed why, under his reading of the CBA, Howse was not entitled to the salary step assignment she desired, and he recounted his discussions with Butler and Howse on the matter. However, Yankee's declaration was not verified under oath by someone authorized to administer an oath. Its contents are therefore inadmissible because the document does not satisfy the affidavit requirement of Rule 1-056(E) NMRA. See Kiehne v. Atwood, 93 N.M. 657, 667, 604 P.2d 123, 133 (1979) (stating that an affidavit is a "written statement, under oath, sworn to or affirmed by the...