Kunz v. United Food & Commercial Workers, Local 876

• Decision Date: 29 September 1993
• Docket Number: No. 92-1919,92-1919
• Citation: 5 F.3d 1006
• Parties: 144 L.R.R.M. (BNA) 2345, 126 Lab.Cas. P 10,885 June KUNZ, Plaintiff-Appellant, v. UNITED FOOD & COMMERCIAL WORKERS, LOCAL 876, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1006

5 F.3d 1006

144 L.R.R.M. (BNA) 2345, 126 Lab.Cas. P 10,885

June KUNZ, Plaintiff-Appellant, v. UNITED FOOD & COMMERCIAL WORKERS, LOCAL 876, Defendant-Appellee.

No. 92-1919.

United States Court of Appeals Sixth Circuit.

Submitted June 25, 1993.

Decided Sept. 29, 1993.

Ellis Boal (briefed), Detroit, MI, for plaintiff-appellant.

John R. Runyan (briefed), Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, Detroit, MI, for defendant-appellee.

Before: MILBURN and BOGGS, Circuit Judges, and KRUPANSKY, Senior Circuit Judge.

KRUPANSKY, Senior Circuit Judge.

Plaintiff-Appellant, June Kunz, has appealed the district court's grant of summary judgment in favor of defendant-appellee, United Food & Commercial Workers, Local 876 (Local 876) on her causes of action in breach of contract, breach of the duty of fair representation, and retaliatory discharge. This complaint was initially filed in Michigan state court, but was removed to federal district court after it was determined that at least one of plaintiff's causes of action arose under federal law. Upon review of the record before it, the district court granted the defendant's motion for summary judgment and the plaintiff appealed.

Kunz began working for Local 876 as a housekeeper on June 15, 1985. During her initial employment interview, the union's representative allegedly told Kunz "[t]hat you joined the union. You are backed by the Union.... That you had the job for as long as you wanted it." J.App. at 93. Kunz further testified in her deposition that it was her understanding that "[u]nless you did something horrendously wrong, outrageously, morally, ethically wrong, you had the job. And if you did do something very badly, you had your union representative there to help you out." Id. At the time of her job interview, she had also been informed that union membership was a condition of employment. Hence, on her first day of work, Kunz effected a standard form acknowledging union membership with a dues check-off authorization and an exclusive bargaining agent designation. The President of Local 876, Ron Brown, described the form signed by Kunz as one that was required to be executed by unionized employees of employers other than the union who were represented by Local 876 pursuant to a collective bargaining agreement. The form was not designed nor intended to designate the union as the collective bargaining agent for its own employees because of the obvious legal conflicts that would arise from such an arrangement.

In May 1990, Kunz experienced a work-related injury to her hand. She was immediately placed on medical leave and began receiving worker's compensation payments in early July. On October 8, 1990, she returned to work without restrictions. During her absence, the union officials had decided to terminate her employment because of her deficient work performance. Her supervisor, Barbara Woods, stated in her deposition that she had discussed Kunz's poor job performance with her on several occasions. J.App. at 40-41. Woods also noted that the Secretary-Treasurer of Local 876, Edward Lively, had commented about plaintiff's sub-standard job performance. The union asserted that Kunz interfered with and distracted other employees from performing their assignments, watched television in the employee's lounge during working hours, failed to wear her beeper and was generally inefficient in performing her duties. Kunz was informed of her termination immediately after she returned from her medical leave.

After her termination, Kunz attempted to file two grievances with Local 876, protesting her discharge. She was advised that the union had no grievance procedures that were available to its own employees because they were not members of a collective bargaining unit created by a collective bargaining agreement. Accordingly, she appealed her termination directly to the union's executive board which, after reviewing her charges and the Local's disposition, affirmed Local 876's decision to terminate her employment. Kunz subsequently filed this action alleging breach of contract, breach of the duty of fair representation and retaliatory discharge.

After entertaining oral argument on a motion for summary judgment by Local 876, the district court ordered supplemental briefs addressing two questions: (1) whether Kunz could assert a fair representation claim in the absence of a collective bargaining agreement; and (2) whether the National Labor Relations Board (the Board) had exclusive or concurrent jurisdiction over any unfair labor practice claim that may have resulted from the union's alleged misconduct. Summary judgment was granted in favor of Local 876. The district court concluded that although a collective bargaining agreement was not a prerequisite for a fair representation claim, Kunz nevertheless had failed to state such a claim because defendant was not her exclusive bargaining agent. The court also decided that any asserted unfair labor practice that may have been anchored in the union's alleged misrepresentations and that Kunz could have incorporated into her complaint would have been within the exclusive jurisdiction of the Board.

Kunz timely appealed the district court's order of summary judgment. Appeals from grants of summary judgment are reviewed under a de novo standard. EEOC v. University of Detroit, 904 F.2d 331, 334 (6th Cir.1990). The court must determine whether "the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Massey v. Exxon Corp., 942 F.2d 340, 342 (6th Cir.1991). The evidence must be viewed in a light most favorable to the nonmoving party, but 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 v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). There must be a genuine issue of material fact. Middleton v. Reynolds Metals, 963 F.2d 881, 882 (6th Cir.1992). A fact is material if it will "affect the outcome of the suit under the governing law.... Factual disputes that are irrelevant or unnecessary will not be counted." Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. Thus, "a party may move for summary judgment asserting that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion. If, after sufficient time for discovery, the opposing party is unable to demonstrate that he or she can do so under the Liberty Lobby criteria, summary judgment is appropriate." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989) (adopting the "New Era" of summary judgment as defined by Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); and Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

As her first assignment of error, plaintiff contended that the district court erred in granting summary judgment to Local 876 on her hybrid Sec. 301 violation. ¹ In order to prove a hybrid Sec. 301 claim, the employee must demonstrate that the union breached its duty of fair representation and that the employer breached the collective bargaining agreement. Sparks v. International Union, United Automobile, UAW, 980 F.2d 394 (6th Cir.1992). In the instant case, plaintiff advanced the novel theory that as a result of her discharge without just cause, Local 876 breached both its duty of fair representation as a union and its contractual obligations as an employer. Plaintiff's action is misconceived because a hybrid Sec. 301 claim contemplates an adversarial relationship between the union and the employer that did not and could not have existed in the instant case. Local 876 had no duty to represent Kunz against her employer because Local 876 itself was her employer. Moreover, even if plaintiff could have successfully proved a breach of the duty of fair representation, she could not identify any collective bargaining agreement that had been breached by her termination because no such agreement existed. McTighe v. Mechanics Educational Soc., Local 19, 772 F.2d 210 (6th Cir.1985) (Discharged supervisor cannot claim jurisdiction under Sec. 301 where he was not part of a collective bargaining unit and was therefore not covered by any bargaining agreement). Plaintiff's allegation of an employment contract providing for just cause termination does not constitute a collective bargaining agreement. Sec. 301 clearly provides jurisdiction for "[s]uits for violation of contracts between an employer and a labor organization ... or between any such labor organizations...." 29 U.S.C. Sec. 185. An employment contract between an individual and a labor organization does not fall within the jurisdiction of Sec. 301. Wooddell v. International Brotherhood of Electrical Workers, Local 71, --- U.S. ----, 112 S.Ct. 494, 116 L.Ed.2d 419 (1991) ("[A] suit properly brought under Sec. 301 must be a suit either for violation of a contract between an employer and a labor organization ... or for a violation of a contract between such labor organizations"). See also Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). Accordingly, because plaintiff was not a party to a collective bargaining agreement, the summary judgment in favor of defendant on her hybrid Sec. 301 claim was proper. ²

In Storey v. Local 327, International Brotherhood of Teamsters, 759 F.2d 517 (6th Cir.1985), this circuit recognized, however, that in the absence of a collective bargaining agreement which would give rise to an action under Sec. 301, federal courts have jurisdiction over actions for breach of the duty of fair representation arising pursuant to 28 U.S.C. Sec. 1337. ³ The union's...