Stanley v. AM. FED. OF STATE AND MUN. EMP. LOCAL# 553, 1313

• Decision Date: 06 October 2005
• Docket Number: No. 1313,1313
• Citation: 165 Md. App. 1,884 A.2d 724
• Parties: Ramon STANLEY v. AMERICAN FEDERATION OF STATE AND MUNICIPAL EMPLOYEES LOCAL NO. 553, et al.
• Court: Court of Special Appeals of Maryland

884 A.2d 724

165 Md. App. 1

Ramon STANLEY v. AMERICAN FEDERATION OF STATE AND MUNICIPAL EMPLOYEES LOCAL NO. 553, et al.

No. 1313, September Term, 2004.

Court of Special Appeals of Maryland.

October 6, 2005.

Stephen C. Wilkinson, Cumberland, for appellant.

Linda McKeegan (Joel A. Smith, Kahn, Smith & Collins, PA, on brief), Baltimore, H. Jack Price, Jr., Cumberland, for appellee.

Panel DEBORAH S. EYLER, BARBERA, and WILLIAM W. WENNER, (retired, specially assigned), JJ.

BARBERA, J.

This appeal has its genesis in a union's refusal to arbitrate a member's grievance with his employer. In 2000, Ramon Stanley, appellant, was terminated from his employment with the City of Cumberland after a urine sample he submitted to the Allegany County Health Department (the "Health Department") tested positive for the presence of marijuana. That result was appellant's second positive test result in approximately one year.

Appellant, a member of the American Federation of State & Municipal Employees Local No. 553 (the "Union"), sought the Union's assistance in pursuing a grievance on his behalf against the City of Cumberland. The Union's members initially voted to arbitrate the decision to terminate appellant's employment, but later voted not to proceed on appellant's behalf. The Union notified appellant that he could proceed to arbitration on his own and without Union representation. When appellant attempted to enter into arbitration with the City of Cumberland, however, it refused to arbitrate.

Appellant thereafter filed suit in the Circuit Court for Allegany County against the Mayor and the City Council of Cumberland (the "City") and the Union, all appellees herein. Appellant alleged in the complaint that the Union breached its duty of fair representation, and that he was wrongfully terminated from his employment with the City. Appellant also asked the court to issue an order compelling the City to arbitrate his grievance.

After the court entered summary judgment in favor of appellees, appellant noted this timely appeal. For the reasons discussed below, we hold that there are triable issues concerning appellant's claim for breach of the Union's duty of fair representation. We therefore reverse the court's grant of summary judgment in favor of the Union. We also reverse the court's grant of summary judgment in favor of the City on the count alleging wrongful termination. We affirm the court's summary judgment ruling in favor of the City on the counts requesting an order compelling arbitration and an order that the grievance be decided in appellant's favor.

Background

Appellant began working for the City in October 1974, and had been working as an "Equipment Operator 2" for approximately ten years before his employment was terminated in 2000. Shortly after he began his employment with the City, appellant became a member of the Union.

In 1979, the City designated the Union "the exclusive bargaining agent for certain employees in the general trades and labor and clerical/technical classifications of the City of Cumberland[.]" From July 1, 1998 through June 30, 2001, appellees were parties to a Collective Bargaining Agreement (the "Agreement"). Article IV, §§ 1-5 of the Agreement, about which we shall say more later in this opinion, outlines the procedures used in handling a "grievance or dispute which may arise between the parties[.]"

A condition of appellant's employment was that he must hold a commercial driver's license. The Federal Government requires individuals holding a commercial driver's license to submit to a random drug and alcohol screening. See 49 C.F.R. § 382 (2004). Accordingly, in September 1999, appellant submitted to a random drug test. The test results reported positive for marijuana.

Appellant received from the City a letter dated October 8, 1999. In it, the City informed appellant that he was in "violation of Rule # 4, section A, of the Rules [for Progressive Disciplinary Actions for Operating and Utility Employees (the `Rules')]," which the Union and the City had negotiated. Rule # 4 is titled "3 DAYS OFF/5 DAYS OFF/DISCHARGE," and provides, in pertinent part, that "[t]he use or possession of intoxicants or controlled dangerous substances by employees during their tour of duty or while on [C]ity property shall be cause for disciplinary layoff or dismissal. . . ." The City informed appellant that he was suspended for three days and that, "[a]s a condition of continued employment with the City[,]" he would have to complete a drug counseling program and then submit to random monthly drug and alcohol screenings, as part of a one-year probation.¹ The City stated that, should appellant test positive or refuse to undergo the drug screening during his probationary period, he would be immediately terminated from employment.

Appellant completed the drug counseling program, returned to work, and submitted to the required monthly drug screenings with the Health Department. In late August 2000, he submitted a urine sample to the Health Department. The Health Department forwarded the sample to Friends Medical Laboratory ("Friends") in Baltimore, which reported that the sample tested positive for the presence of marijuana. The City notified appellant of the positive test result the following month, and informed him that, effective immediately, he was "suspended without pay pending the outcome of a pre-termination hearing[.]"

On September 7, 2000, a pre-termination hearing was held.² James Bestpitch, Union Representative, and John Keiper, Union President, attended the hearing with appellant. During the hearing, appellant disputed the test results. The hearing panel granted Mr. Bestpitch's request, on appellant's behalf, for additional time to submit information concerning the testing.

Mr. Bestpitch then obtained from the Allegany County Director of Human Resources and Personnel a facsimile containing information about an approved drug screening methodology, and apparently stating that, if a drug screening results in a positive test, a confirmatory test using a different method must be conducted. For some reason not reflected in the record, Mr. Bestpitch did not forward this information to the pre-termination hearing panel. Nor did he request additional information regarding testing methods from the Union's national office.

By letter dated September 11, 2000, the City, noting that it had received no further information from appellant concerning the drug test, informed him that his employment would be terminated effective September 12, 2000. Shortly thereafter, Mr. Bestpitch and Mr. Keiper prepared a grievance by appealing the City's decision to terminate appellant. The grievance asserted that appellant "was unjustly terminated" in violation of Article IV, § 7 of the Agreement.³

After a hearing on the grievance, the City informed Mr. Bestpitch that appellant's grievance was denied and his termination was upheld. The City pointed out that, although the Union had argued at the grievance hearing that the Health Department had not complied with federal drug testing procedures in conducting the September 2000 test of appellant's urine, the Union had offered no evidence, other than appellant's bare testimony, to support that claim.

Several weeks later, Mr. Bestpitch notified the City that the Union would proceed to arbitration on appellant's grievance, in accordance with the Agreement. On December 5, 2000, the Union held a regular meeting, at which appellant was present. During the meeting, the members were informed that the Union's Executive Board had recommended that the Union not pursue arbitration on appellant's behalf. Mr. Bestpitch told the members that appellant could challenge the City's decision based upon a "technicality" in the testing procedure that resulted in appellant's second positive drug test, but he was not sure that the "technicality or loophole [was] strong enough to win arbitration." Mr. Bestpitch also explained that he and Mr. Keiper "learned some confidential information," that is, that appellant "admitted that he was wrong." Mr. Bestpitch advised the members that arbitration costs would include "approximately $2500 for the brief, and $1500 or more for the rest of the case."

The members discussed appellant's grievance, then voted to overturn the Executive Board's decision and to proceed to arbitration on appellant's behalf. Despite that vote, Mr. Bestpitch did not forward a "Request for Arbitration Panel" form to the City until December 18, 2000.

Several Union members who were not present at the December 5, 2000 meeting approached Mr. Bestpitch sometime later that month to discuss the possibility of reconsidering the vote to arbitrate appellant's grievance. Mr. Bestpitch advised them how to reconsider the vote at the next Union meeting.

On January 2, 2001, the Union met for its regular monthly meeting, during which the members discussed the possibility of reconsidering the vote to proceed to arbitration. Mr. Bestpitch informed them that they could do so if a two-thirds majority voted to reconsider. A vote was taken, and a two-thirds majority was not reached. Following this meeting, some Union members again approached Mr. Bestpitch and advised him that the motion to reconsider actually needed only a bare majority vote rather than a two-thirds vote to pass.

As Union president, Mr. Keiper called a special meeting, which was held on January 11, 2001. At that time, Mr. Bestpitch informed the members that he had incorrectly stated during the previous meeting that a motion for reconsideration required a two-thirds vote to pass, when in fact it required only a majority vote, which it had received. Mr. Bestpitch advised the members that, because the motion had passed during the January meeting, the members could now discuss whether to proceed to arbitration. He then told them that appellant could "pursue the issue in court if the [U]nion does not fight for him." The Union members voted...