Thompson v. ALCOA ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JAMES E. THOMPSON, 
Plaintiff-Appellant,
v.
ALUMINUM COMPANY OF AMERICA;  No. 01-1617
UNITED STEELWORKERS OF AMERICA,
AFL-CIO CLC; UNITED
STEELWORKERS LOCAL 303,
Defendants-Appellees.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CA-99-943-1)
Argued: December 5, 2001
Decided: January 22, 2002
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Gregory wrote the opinion, in
which Judge Motz and Judge King joined.
COUNSEL
ARGUED: Fred Thurman Hamlet, Sr., Greensboro, North Carolina,
for Appellant. Pamela W. Connelly, LEBOEUF, LAMB, GREENE &
MACRAE, L.L.P., Pittsburgh, Pennsylvania, for Appellee Alcoa;
Arlus Jeremiah Stephens, Assistant General Counsel, UNITED
2 THOMPSON v. ALCOA
STEELWORKERS OF AMERICA, Pittsburgh, Pennsylvania, for
Appellee Union. ON BRIEF: William V. Conley, LEBOEUF,
LAMB, GREENE & MACRAE, L.L.P., Pittsburgh, Pennsylvania, for
Appellee Alcoa.
OPINION
GREGORY, Circuit Judge:
James E. Thompson appeals the district court’s order granting sum-
mary judgment in favor of his employer, Alcoa Inc., and in favor of
the Union appellees, United Steelworkers of America, AFL-CIO-CLC
and United Steelworkers, Local 303. The district court dismissed
Thompson’s complaint, which was filed against Alcoa for breach of
contract pursuant to Section 301 of the Labor Management Relations
Act and against the Union for breach of its duty of fair representation.
Because there is no evidence to support Thompson’s claim against the
Union for breach of its duty of fair representation, we affirm.
I.
Appellant James Thompson was employed by Alcoa in 1980 at its
Mobile, Alabama plant. In 1983, following layoffs in Mobile, he
transferred to Alcoa’s Badin, North Carolina plant. The United Steel-
workers of America have represented Alcoa employees since 1942.
The Badin plant is covered by a master agreement between Alcoa and
the Union, which is administered by Local Union 303.
At the Badin plant, Thompson worked as a pot tender and a pot ser-
vicer. Both jobs exposed Thompson to smoke, fumes, dust, hydrogen
fluoride gases, sulfur, coal tar, various oxides, and other chemicals.
Sometime in 1986 or 1987, Thompson began having pulmonary prob-
lems at work. In June of 1995, he filed a workers’ compensation
claim asserting that his asthmatic condition was the result of exposure
to toxic fumes at the Badin plant. Alcoa denied his claim, taking the
position that his medical problems were not work-related.
In November 1995, Thompson informed the potroom safety coor-
dinator that he could not wear the forced-air respirator required for
THOMPSON v. ALCOA 3
pot servicers. He argued that his asthmatic condition made wearing
a respirator unsafe. Alcoa attempted to fit Thompson with various
breathing masks, but Thompson claimed they did not help. On
November 17, 1995, Thompson was disciplined for allegedly refusing
to wear a mask while working. A five day suspension was approved,
and as a result, Thompson filed Grievance 1844.
As a result of the grievance, Alcoa sent Thompson to see a com-
pany doctor, Dr. Landis in Charlotte, North Carolina. Dr. Landis pre-
pared a report for Alcoa in which he corroborated Thompson’s
assertion that he was having difficulty breathing at work. However,
Dr. Landis reported that it was unclear whether this problem was
caused by Thompson’s employment at Alcoa. Alcoa then determined
that Thompson was unable to work under the job requirements, which
required him to wear a mask at all times.
On January 29, 1996, Alcoa removed Thompson from his pot ser-
vicer position and placed him on sickness and accident (S&A) leave.
Thompson was told that there were no other positions available in
Badin at that time. While not working, Thompson was supposed to
draw S&A pay.
At the time he was placed on S&A leave, Thompson made an oral
request to transfer to Alcoa’s plant in Point Comfort, Texas, pursuant
to Section 80(1)(c)1 of the union contract. Alcoa refused his oral
request, arguing that Section 80 did not apply because there had been
no determination that Thompson’s medical condition was in fact
work-related.
1
Section 80 applies to employees who cannot work because of an on-
the-job injury, "because of a disability attributable in whole or in part to
employment with the Company." If the injured employee can perform a
lower-paying job at his plant, Alcoa must pay him a wage enhancement
so as to prevent a loss in his hourly rate of pay. Section 80 also contains
a transfer provision. If there is no available work for the injured
employee at his home plant, the employee may transfer to another plant
that has work available and is currently hiring. Any medical dispute over
an employee’s eligibility for Section 80 benefits may be resolved by an
independent third-party doctor who will render a final decision.
4 THOMPSON v. ALCOA
Two weeks after Alcoa’s refusal of his transfer request, Thompson
left North Carolina, returning to Alabama so that his parents could
help support him and his two children. He failed to pursue the griev-
ance procedure by never requesting that a union representative appeal
his supervisor’s denial of his transfer request.2
Thompson remained in Alabama for the next year and a half on
S&A leave. On July 7, 1997, he was recalled to the Badin plant to
work as a caster helper, a position at a lower job grade and lower
hourly rate. Shortly after his return, on July 24, 1997, Thompson
approached a Local 303 official and filed Grievance 1969, alleging a
violation of Section 80 for the 1996 denial of his transfer request.
Grievance 1969 stated, "Employee was put out of plant due to a medi-
cal reason. Company never offered alternative work, per contract lan-
guage." Grievance 1969 reported the date of the alleged incident as
July 24, 1997, the same day the grievance was initiated. Thompson
sought to be moved to Point Comfort, Texas.3
2
Article XIII of the collective bargaining agreement details the griev-
ance procedures at Badin. It provides three steps an employee can take
to raise a complaint regarding application of the agreement. Step 1,
which Thompson completed, requires an employee to orally present the
grievance to his immediate supervisor. The supervisor is required to give
an immediate oral answer. If the employee is not satisfied with the super-
visor’s answer, a union representative is empowered to appeal the griev-
ance to Step 2, which involves a written appeal discussed by the
representative and a Works Manager. If the grievance is still not
resolved, it can be taken to Step 3. At Step 3, the union representative
discusses the matter with the company’s Manager of Industrial Relations.
If a grievance is denied at Step 3, the Union has the option to seek arbi-
tration.
Thompson was allegedly aware of these procedures—he had filed at
least five grievances prior to 1996. Additionally, while Thompson was
on S&A leave, he did not immediately receive his benefits, so he filed
Grievance 1855 through the Local 303. Thompson prevailed, and
received a lump sum for the arrearage.
3
A week after filing Grievance 1969, Thompson filed Grievance 1978,
in which he protested Alcoa’s failure to pay him an enhanced hourly rate,
again in reliance on Section 80. This grievance listed the date of incident
as July 7, 1997, the day he returned to work.
THOMPSON v. ALCOA 5
Alcoa denied Grievance 1969 at Step 2 of the grievance procedure.
Subsequently, Thompson’s workers’ compensation claim was
resolved on April 20, 1998.4 Therefore, another Step 2 meeting was
held to address his grievance in light of the resolution. Alcoa again
denied Grievance 1969, and so a Step 3 meeting was held in January
of 1999. Alcoa denied the grievance at Step 3, based on two findings.
First, because Alcoa had disputed Thompson’s contention that his
asthma was work-related in January 1996, the company asserted that
Section 80 did not apply. Second, when Grievance 1969 was filed in
July of 1997, Thompson had resumed work at the plant, rendering
Section 80 inapplicable.
Following Alcoa’s denial of the transfer grievance at Step 3, the
Union decided not to pursue arbitration. Union representative Joe
Weber, who presented the case at Step 3, spoke with a Union Alcoa
specialist, John Herron, about the case. Herron advised Weber not to
seek arbitration because Thompson would not prevail. Herron testi-
fied that the problem with the grievance was that Thompson did not
pursue it until he was already back at the plant working full time.
Once Thompson was working in his new job, and especially after he
received the wage enhancement, Herron believed that Alcoa had com-
plied with the Section 80 mandate.
Thompson argues that Alcoa breached the collective bargaining
agreement by denying the transfer requests made in January 1996 and
July 1997. He also claims that the Union breached its duty of fair rep-
Months after settlement of Thompson’s workers’ compensation claim,
Grievance 1978 was resolved when Alcoa began paying Thompson the
wage enhancement. The settlement also resulted in Alcoa paying Thomp-
son a lump sum representing the retroactive application of the wage
enhancement to the time he filed the grievance in July 1997.
4
The settlement of Thompson’s workers’ compensation claim provided
that Alcoa pay Thompson $9000, with no deduction for the S&A benefits
he received, that it acknowledge the compensability of his occupational
asthma, and that the company be released from any future workers’ com-
pensation liability. The settlement did not resolve the pending grievances
—it stated that Thompson could continue to pursue them and that Alcoa
could continue to contest them.
6 THOMPSON v. ALCOA
resentation by failing to appeal Grievance 1969 to arbitration. He
filed an action in state court, which was removed to the United States
District Court for the Middle District of North Carolina. Following
discovery, the defendants moved for summary judgment, which was
granted on March 30, 2001.
II.
On appeal, decisions granting summary judgment are reviewed de
novo. JKC Holding Co. LLC v. Washington Sports Ventures, Inc., 264
F.3d 459, 465 (4th Cir. 2001). In reviewing the evidence, we draw all
reasonable inferences in favor of Thompson, the non-moving party.
We make no credibility determinations, and we do not weigh the evi-
dence. Edell & Assoc., P.C. v. Law Offices of Peter G. Angelos, 264
F.3d 424, 435 (4th Cir. 2001). "One of the principal purposes of the
summary judgment rule is to isolate and dispose of factually unsup-
ported claims or defenses." Celotex Corp. v. Catrett, 477 U.S. 317,
323-24 (1986).
Summary judgment is appropriate when "the pleadings, deposi-
tions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(c).
III.
Thompson filed this action against Alcoa for breach of contract
pursuant to § 301 of the Labor Management Relations Act, 29 U.S.C.
§ 185, and against the Union for breach of its duty of fair representa-
tion. This is a so-called "hybrid 301" action, where in order to prevail
on the merits against either party, an employee must prove both 1)
that the union breached its duty of fair representation and 2) that his
employer violated the collective bargaining agreement. See DelCos-
tello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 164-65 (1983).
Though both claims are brought in one suit, a cause of action "will
only lie against an employer if the union has breached its duty of fair
representation of the employee." Amburgey v. Consolidation Coal
Co., 923 F.2d 27, 29 (4th Cir. 1991) (citing Vaca v. Sipes, 386 U.S.
THOMPSON v. ALCOA 7
5
171, 186 (1967)). Accordingly, an employee "must prevail upon his
unfair representation claim before he may even litigate the merits of
his § 301 claim against the employer." United Parcel Service , Inc. v.
Mitchell, 451 U.S. 56, 67 (1981) (Stewart, J., concurring). Because
Thompson cannot demonstrate that the Union breached its duty of fair
representation when it declined to appeal Grievance 1969 to arbitra-
tion, we affirm the district court’s grant of summary judgment in
favor of Alcoa and the Union.
A.
Thompson’s claims against the Union and Alcoa are "interlocked:
neither claim is viable if the other fails." See Crider v. Spectrulite
Consortium, Inc., 130 F.3d 1238, 1241 (7th Cir. 1997). However, we
first address the claim against the Union, because federal courts
review allegations against employers for breach of collective bargain-
ing agreements only when an employee has first proved that the union
representing him breached its duty of fair representation. Vaca, 386
U.S. at 186.
It is well established that unions, as exclusive bargaining agents in
the negotiation, administration and enforcement of collective bargain-
ing agreements, have an implicit duty "to serve the interests of all
members without hostility or discrimination toward any, to exercise
[their] discretion with complete good faith and honesty, and to avoid
arbitrary conduct." Id. at 177 (citing Humphrey v. Moore, 375 U.S.
335, 342 (1964)), see also 29 U.S.C. § 159(a). Whether a union acted
arbitrarily, discriminatorily or in bad faith requires a separate analy-
sis, because each of these requirements represents a distinct and sepa-
rate obligation. Griffin v. Int’l Union, 469 F.2d 181, 183 (4th Cir.
5
This rule is based on federal labor law policy, which favors adjust-
ment by the parties of disputes arising under collective bargaining agree-
ments. "Final adjustment by a method agreed upon by the parties is
declared to be the desirable method for settlement of grievance disputes."
Amburgey, 923 F.2d at 29 (quoting LMRA § 203(d), 29 U.S.C.
§ 173(d)). "Federal courts do not invade this domain on the complaint of
an employee unless his union is ‘grossly deficient’ in its representation
or ‘recklessly disregards’ the employee’s rights." Id. (quoting Wyatt v.
Interstate & Ocean Transp. Co., 623 F.2d 888, 890-91 (4th Cir. 1980)).
8 THOMPSON v. ALCOA
1972). From our review, we find that Thompson has demonstrated no
facts from which we can infer that the Union’s actions, in deciding
not to appeal Grievance 1969 to arbitration, were arbitrary, discrimi-
natory, or in bad faith.6
To begin, the evidence does not establish that the Union’s decision
not to appeal Grievance 1969 to arbitration was arbitrary. To be "arbi-
trary," a union’s conduct towards its member must be so far outside
a wide range of reasonableness that it is wholly irrational. Air Line
Pilots Ass’n v. O’Neill, 499 U.S. 65, 78 (1991). The facts here show
that Union representatives, in deciding not to pursue arbitration, con-
sidered the collective bargaining agreement, reviewed the record, and
based their decision on Thompson’s status as a working employee.
When Thompson returned to Badin and filed Grievance 1969 in July
1997, he was no longer removed from employment—he had been
recalled and was working again in the Badin plant.7 Transfers to other
Alcoa plants are available under Section 80(1) only when an
employee has been removed from his job, and only "[i]n the event no
available job exists in the plant."8 Since Thompson was working at
the plant, a job obviously existed there. Thompson even acknowl-
edged that under Section 80, "If you’re working at Badin or at another
Alcoa location, you’re not eligible to turn in a transfer request." J.A.
at 530. Therefore, the Union’s failure to seek arbitration in this matter
6
In his appellate brief, Thompson asserts that the Union defaulted in
its duties to him in the handling of four grievances. We note that in his
complaint, Thompson only claims that the Union breached its duty of fair
representation by refusing to appeal Grievance 1969 to arbitration. Thus,
we confine our review to that issue.
7
We note that it is sometimes helpful to look at the arguable merits of
a union’s proffered interpretation of a collective bargaining agreement in
order to determine whether a union breached its duty of fair representa-
tion in failing to arbitrate a grievance. Ooley v. Switzer Div., Household
Mfg., Inc., 961 F.2d 1293, 1298 (7th Cir. 1992). Though we decline to
do so here, where a court is well able to decide that the employee’s con-
tractual claim lacks merit as a matter of law, it is appropriate for the
court to decide the case on that issue. Id.8
The right to transfer does not constitute a vested bonus or benefit, but
exists as a last resort to allow eligible employees to continue earning a
paycheck.
THOMPSON v. ALCOA 9
hardly rises to the level of irrational. The Union officials here did not
ignore a meritorious grievance, they made a decision not to press a
grievance they believed had no chance of success. An employee has
no absolute right to insist that his grievance be taken to a certain
level; a "union may screen grievances and press only those that it con-
cludes will justify the expense and time involved in terms of benefit-
ting the membership at large." Griffin, 469 F.2d at 183.
We add that even if we were to assume that Grievance 1969 had
merit and the Union should have appealed it to arbitration, "a union’s
exercise of its judgment need not appear as wise in the glaring light
of hindsight, and a violation of the duty of fair representation is not
made out by proof that the union made a mistake in judgment." Smith
v. Local 7898, United Steelworkers of America, 834 F.2d 93, 96 (4th
Cir. 1987). As long as a union does not arbitrarily ignore a meritori-
ous grievance or handle it in a perfunctory manner, that union has not
violated its duty of fair representation. Griffen, 469 F.2d at 183. The
Union did not ignore Thompson’s grievance—it initiated the griev-
ance at Thompson’s request, participated in two Step 2 hearings,
appealed the grievance to Step 3 and participated in the Step 3 hearing
with Thompson. Union officials decided not to appeal the grievance
to arbitration only because they believed Thompson would not pre-
vail.
While the analysis of whether a union’s actions were arbitrary
looks to the objective adequacy of that union’s conduct, the analysis
of discrimination and bad faith must focus on the subjective motiva-
tion of the union officials. Crider, 130 F.3d at 1243. Having reviewed
the record and the briefs, and having had the benefit of oral argument,
we find no evidence that Union officials discriminated against
Thompson in any way or acted with bad faith when they decided not
to appeal Grievance 1969 to arbitration.
B.
Our conclusion that the Union did not breach its duty of fair repre-
sentation resolves the case for Alcoa as well. Although not essential
to the resolution of this appeal, we agree with the district court’s con-
clusion that Thompson cannot show Alcoa breached the collective
bargaining agreement when it refused to transfer him to its Point
10 THOMPSON v. ALCOA
Comfort, Texas plant. In 1996, at the time Alcoa first denied Thomp-
son’s transfer request, it was operating under the assumption that
Thompson’s health problems were not work-related. Under Section
80 of the collective bargaining agreement, transfers are required only
when the injury is caused by work. Hindsight always being twenty-
twenty, we know now that Thompson’s condition was in fact work-
related. However, at the time, there had been no such determination.9
Furthermore, as discussed above, when Thompson filed Grievance
1969 in July 1997, he had resumed work and was no longer eligible
under the contract for a transfer.
IV.
The facts, even in the light most favorable to Thompson, show that
when Thompson filed Grievance 1969 in July 1997 he had already
resumed working and was no longer eligible for a transfer. There are
no facts from which we can infer that the Union, in declining to
appeal the grievance to arbitration, acted arbitrarily, discriminatorily,
or in bad faith. Thompson therefore cannot show that the Union
breached its duty of fair representation. Thus, his hybrid 301 suit
against the Union and Alcoa must fail. Accordingly, the order of the
district court is affirmed.
AFFIRMED
9
Section 80(1)(d) of the Agreement states that if a dispute arises over
an employee’s disability or medical condition, the company’s medical
representatives shall make the initial determination on whether condition
is work-related. If that determination is disputed by the Union, the matter
shall be referred to a mutually-designated physician or medical center for
a final binding determination.
The company’s doctor, Dr. Landis, had stated in a letter to the com-
pany that he could not determine that Thompson’s pulmonary problems
were the result of Thompson’s employment at Alcoa. Thompson then left
Badin shortly after his transfer request was denied without pursuing the
grievance procedures that were available to him under the contract.