The plaintiff sued after he was fired from his delivery job at UPS. (Deposit Photos)

A federal judge has found that a local union acted in good faith and therefore did not breach its duty of fair representation in not pursuing arbitration on behalf of a plaintiff member who was terminated from his job for violating his employer’s anti-violence and anti-harassment workplace policies.

Plaintiff Michael P. Smith was terminated from his delivery job at United Parcel Service after mocking another employee’s disability and hitting him on the head. He filed suit against UPS, alleging that he was fired without just cause contrary to the parties’ collective bargaining agreement, as well as against his former union, Local 251 of the International Brotherhood of Teamsters, for its refusal to arbitrate his grievance.

But U.S. District Court Judge William E. Smith in Providence disagreed with the plaintiff’s contentions, granting summary judgment in favor of both defendants.

Smith found the union acted reasonably and in good faith in considering the circumstances underlying the termination, i.e., the evidence supporting the accuser’s version of events and the plaintiff’s lengthy history of disciplinary infractions, in deciding against arbitration.

“Where a union reasonably and in good faith concludes that it cannot ‘establish a wrongful discharge,’ and that arbitration would therefore be ‘fruitless,’ it has the discretion to abandon the grievance process,” Smith wrote. “Affording the union the considerable deference it deserves, this court cannot say that its decision-making was ‘so far outside a wide range of reasonableness to be irrational,’ nor that it was taken with ‘reckless disregard for the rights of the individual employee.’”

With the fair representation claim against the union not passing muster, the closely related contract claim against UPS also failed.

The 19-page decision is Smith v. United Parcel Service, Inc., et al.

The union’s lawyer, Marc B. Gursky, said in a dispute between members, courts will not second-guess the union’s decision about whose version to accept so long as the union conducts a reasonable investigation and there is no evidence of bias.

“The plaintiff harassed a co-worker based on his disability and was on a ‘last chance’ agreement, so Judge Smith obviously got it right,” Gursky said.

The North Kingstown labor lawyer added that the decision is a good tutorial for attorneys who are unfamiliar with the duty of fair representation and think a credibility issue will get them to a jury.

“It won’t,” he said.

Neither the attorney for the plaintiff, Edward C. Roy Jr. of North Kingstown, nor counsel for UPS, Timothy C. Cavazza of Providence, was available for comment prior to press time.

Employee incident

The plaintiff began working as a package driver for UPS in June 2010. As a UPS employee, he was represented by Local 251 of the International Brotherhood of Teamsters, and his employment was governed by a collective bargaining agreement.

One portion of the CBA set forth certain “cardinal offenses” that justified termination without prior warning.

The plaintiff was also subject to UPS’s workplace violence prevention policy, which guaranteed employees a “safe working environment” and established a zero tolerance policy for physical assaults, and its anti-harassment policy, forbidding “inappropriate physical contact” and harassment based on disability.

Violation of either policy was punishable by disciplinary action up to and including termination without warning.

While taking a work break on Nov. 30, 2018, the plaintiff’s hands came into contact with the head of Anthony Cipriano, a fellow UPS employee and Local 251 member. Cipriano reported to a UPS manager and a union representative that the plaintiff had mocked his deafness and “hit” him in the ear with an “open-handed smack.”

In his meeting with union and company officials, the plaintiff maintained he only “tapped” Cipriano. But consistent with the company’s zero tolerance policy, the plaintiff was suspended pending an investigation.

After a UPS human resources employee took statements from two witnesses who heard the exchange between the plaintiff and Cipriano, the company terminated the plaintiff on Dec. 13 for violating its anti-violence and anti-harassment policies.

Local 251 filed a grievance on the plaintiff’s behalf for termination without just cause. At a grievance meeting soon thereafter, union representatives received the plaintiff’s employment and disciplinary records from UPS, which showed a long history of disciplinary issues, such as inflating his mileage and signing packages for customers without permission. He had previously been terminated twice by UPS but was reinstated with the union’s help.

The employment records also revealed the plaintiff’s “last chance agreement,” which he signed after being terminated and reinstated in 2015 for “dishonesty, overall work record and falsification of company documents.”

The plaintiff claimed for the first time at the meeting that Cipriano had mocked him for having a limp and that Cipriano was actively trying to “steal his route.” But UPS labor relations managers found those claims to be untrustworthy and denied the grievance.

In considering whether to take the grievance to arbitration, union officials concluded that the plaintiff’s account was unbelievable, especially given his disciplinary record. With the additional factors that the union was bound to defend Cipriano’s interest in a safe workplace and that the plaintiff’s actions gave UPS just cause for his immediate discharge, the union declined to take the “futile” matter to arbitration.

The plaintiff brought suit in Superior Court, alleging a breach of the CBA by UPS and a breach of the duty of fair representation by Local 251. The case was removed to federal court, where both defendants moved for summary judgment.

‘Just cause for termination’

Smith began his consideration of the motions by noting that the breach of contract and breach of duty of fair representation claims together comprised a “hybrid” Section 301/duty of fair representation suit under the Labor Management Relations Act.

In such a suit, the judge explained, “a plaintiff must prove both that the employer broke the collective bargaining agreement and that the union breached its duty of fair representation” in order to recover against either the employer or the union.

Significantly, Smith said, a disgruntled employee must first prevail on his unfair representation claim.

Thus, he delved into the reasonableness and good-faith character of Local 251’s decision to forgo arbitration in the instant case.

A union breaches its duty of fair representation only when its conduct is “arbitrary, discriminatory or in bad faith,” and courts will assume a deferential posture toward a union’s decision in whether to take a grievance to arbitration, the judge said.

The plaintiff characterized the evidence as too ambiguous to support a reasonable decision not to arbitrate. For instance, he argued that the witnesses never actually saw the touching and that a possible videotape of the incident was left unexplored.

But the judge gave short shrift to the plaintiff’s position, pointing out that the union fulfilled its obligation to conduct at least a “minimal investigation” and observing that even if the union made erroneous judgments, they alone would not constitute a breach of its duty.

The “determinative question,” he said, was whether the union’s determination was reasonable and in good faith.

Putting that decision in context, the judge observed that the union not only participated in UPS’s investigation but reviewed the company’s results and took its own look into the allegations. And even though the actions for which the plaintiff was fired were not listed among the “cardinal offenses” set forth in the CBA, the “law of the shop” at UPS interpreted that provision as non-exclusive.

Further, even though it was not clear whether the plaintiff’s “final warning” remained in effect indefinitely, the court did not deem it a driving force in the outcome.

“Based on its findings — including party statements, witness statements, and [the plaintiff’s] disciplinary record — and its careful consideration thereof, the union determined that [the plaintiff] had likely transgressed the anti-violence and anti-harassment policies, giving UPS just cause for termination pursuant to [the CBA] and rendering arbitration futile,” Smith wrote in granting judgment for the union. “Even viewed in the light most favorable to [the plaintiff], the undisputed facts show that Local 251 did not breach its duty.”

Accordingly, the judge also granted judgment for UPS as the contract claim in a hybrid action is dependent on the employee first prevailing on unfair representation.