White v. Detroit Edison Company

• Citation: 472 F.3d 420
• Decision Date: 22 December 2006
• Docket Number: No. 06-1007.,06-1007.
• Parties: Darryl WHITE, Plaintiff-Appellant, v. DETROIT EDISON COMPANY, Utility Workers Union of America AFL-CIO, and Utility Workers Union of America Local 223, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

472 F.3d 420

Darryl WHITE, Plaintiff-Appellant, v. DETROIT EDISON COMPANY, Utility Workers Union of America AFL-CIO, and Utility Workers Union of America Local 223, Defendants-Appellees.

No. 06-1007.

United States Court of Appeals, Sixth Circuit.

Argued: November 30, 2006.

Decided and Filed: December 22, 2006.

ARGUED:

Mark S. Demorest, Law Offices of Mark S. Demorest, Dearborn, Michigan, for Appellant. Richard J. Seryak, Miller, Canfield, Paddock & Stone, Detroit, Michigan, Ellen F. Moss, Klimist, McKnight, Sale, McClow & Canzano, Southfield, Michigan, for Appellees.

ON BRIEF:

Mark S. Demorest, Law Offices of Mark S. Demorest, Dearborn, Michigan, for Appellant. Richard J. Seryak, Charles T. Oxender, Miller, Canfield, Paddock & Stone, Detroit, Michigan, Ellen F. Moss, Klimist, McKnight, Sale, McClow & Canzano, Southfield, Michigan, for Appellees.

Before MARTIN, NORRIS, and GIBBONS, Circuit Judges.

BOYCE F. MARTIN, JR., Circuit Judge.

Plaintiff Darryl White, a former Detroit Edison employee and member of the utility workers' union at the Detroit Edison power plant in River Rouge, Michigan, appeals from the district court's grant of summary judgment in favor of Detroit Edison, his local union, and the union's national affiliate. White seeks to resuscitate his action against the local and national unions for their breach of the duty of fair representation, and against Detroit Edison for terminating him without cause in violation of the union's collective bargaining agreement. For the reasons discussed below, we AFFIRM the decision of the district court.

I

The following facts were stated by the district court:

Plaintiff Darryl White began employment with Defendant Detroit Edison in May 2001, as a pipefitter for Detroit Edison's River Rouge power plant. At this time, White became a member of the utility workers union, Defendant [Utility Workers Union of America] Local 223. As a member of the union, White's employment status was protected and governed by a collective bargaining agreement between Detroit Edison and Local 223. Pursuant to the agreement, during the first year of employment, an employee has probationary status. After one year, an employee can be discharged only for just cause.

On March 12, 2002, while still a probationary employee, White was disciplined for being away from his work area without permission on two occasions. White did not file a grievance in response to the discipline. White completed his probationary period with Detroit Edison in May 2002. On both June 1 and June 7, 2002, White left work early by approximately one half hour. On June 14, 2002, a fact-finding hearing was held concerning White's early absences from work in compliance with the collective bargaining agreement which requires a fact-finding hearing before issuance of serious discipline to a union employee. As a result of the hearing, Detroit Edison placed White on "decision-making" leave, which is paid leave where an employee is provided the opportunity to consider the future status of his or her employment with Detroit Edison. Decision-making leave is considered serious discipline and it puts an employee on notice that any subsequent inappropriate behavior may result in more severe discipline, including discharge from employment.

White challenged the discipline by filing a grievance. Pursuant to the collective bargaining agreement, a "third step hearing" was held on the grievance in September 2002. Third step hearings are in-house hearings conducted by employees of Detroit Edison. White was present at the hearing, had the opportunity to defend himself, and was represented by Local 223. On October 25, 2002, a ruling from the hearing was issued, upholding White's decision-making leave discipline. White alleges that he did not learn of the ruling until April 2003, which was too late to make an appeal.

Between the September 2002 third step hearing and April 2003, White had some difficulty with his supervisors. Two fact-finding hearings were conducted on separate incidents: in one case, a refusal by White to do work because of safety concerns; in another case, an accusation that White engaged in disruptive behavior during a briefing. Neither hearing resulted in White receiving any additional discipline. Also during this time, White had two counseling sessions for arguing with a supervisor and for failing to tell his supervisors where he could be reached. The counseling sessions were not considered discipline, nor did they result in any discipline.

The events that constitute the reason for White's eventual discharge from employment occurred on July 23 and 24, 2003. On July 23, White finished an assignment at approximately 5:00 p.m. White waited for another assignment until 7:00 or 7:30 p.m., and then went on his double shift lunch break. After his lunch, White continued to relax in the break room, waiting for another assignment. White testified that there were several other employees also present relaxing in the break room. White claims that he got up several times to look for his supervisor in order to receive another assignment, but that he was unable to locate him. White waited until 11:30 p.m. without working or receiving another assignment, punched out of work, and went home.

The following day, July 24, White began working on an assignment in the morning. Before White was done with his first job, his supervisor, Wallace Cash, assigned White to another job. From White's testimony, Cash told White of the second job at 10:30 or 10:45 a.m. White testified that he could not get to the second job immediately, because he was not finished with the first job. White testified that after lunch, at around 12:15 or 12:30 p.m., he went to check the status of his second job, and found that he could not begin because insulation was still being removed at the job site. White left the job site, and a co-worker subsequently began the job without White. White eventually did return to the job site and began work on this second job at around 2:00 p.m.

On July 29, 2003, a fact-finding hearing was held to consider the events of July 23 and 24, 2003. White was present at the hearing and was represented by Local 223. The ruling resulting from the fact-finding was that White was absent from his work location without permission for approximately 3½ hours on July 23 and approximately 2½ hours on July 24. Because this misconduct occurred while White was still on decision-making leave probation, Detroit Edison then made the decision to terminate White's employment. Detroit Edison discharged White in an official letter dated August 22, 2003.

White filed a grievance, and a third step hearing was held on October 27, 2003. White was again present at the hearing and represented by Local 223. On January 27, 2004, a ruling was issued upholding the termination of White's employment. White then asked Local 223 to take his case to arbitration. Local 223 reviewed White's request and decided against taking White's case to arbitration, notifying White of its decision on March 10, 2004.

White appealed Local 223's ruling to [the] National Union. On July 28, 2004, after providing both Local 223 and White an opportunity to submit additional information, [the] National Union decided to uphold Local 223's refusal to take White's case to arbitration.

White v. Detroit Edison Co., 400 F.Supp.2d 1020, 1022-23 (E.D.Mich.2005).

White filed a complaint in federal district court against Detroit Edison, Local 223, and the national union, alleging violations of the Labor Management Relations Act, 29 U.S.C. § 185 et seq. White's complaint alleged: (1) that Detroit Edison breached the collective bargaining agreement by terminating his employment without just cause, and (2) that Local 223 and the national union breached their duties of fair representation by not submitting White's grievance to arbitration.¹ In response, the national union, Local 223, and Detroit Edison all filed motions for summary judgment. The district court ruled on all of the motions in an opinion dated November 15, 2005.

The district court denied Detroit Edison's motion, finding that when viewed in light most favorable to White, a genuine issue of material fact existed as to whether Detroit Edison had good cause to discharge White. The district court granted Local 223's motion, noting that under Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), 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." The district court also granted the national union's motion, noting that White was similarly unable to point to any arbitrary action on its part. The court held: "National Union did not merely `rubber stamp' Local 223's decision. Instead, National Union solicited from both Local 223 and White any additional information that would be helpful in considering White's appeal. . . . [T]here is nothing in the record to indicate that National Union did not consider all the evidence in White's case." 400 F.Supp.2d at 1027.

On November 30, 2005, the district court issued a supplemental order to its November 15 opinion. The order noted that in cases involving inextricably intertwined— also known as "hybrid"—claims against both union and employer, a plaintiff must survive summary judgment on both claims in order to prevail. Thus, notwithstanding its November 15 judgment denying Detroit Edison's summary judgment motion, the district court concluded that because neither Local 223 nor the national union breached its duty of fair representation to White, his cause of action against Detroit Edison must necessarily fail as a matter of law.

II

This Court reviews a district court's grant of summary judgment de novo, and must view "the facts and any inferences that can be drawn from those facts . . . in the light most favorable to the non-moving party." Bennett v....