George Nemsky v. International Union of Operati ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-4028 & 08-4130
G EORGE “T OM” N EMSKY,
Plaintiff-Appellant,
Cross-Appellee,
v.
C ONOCOP HILLIPS C OMPANY,
Defendant-Appellee,
and
INTERNATIONAL U NION OF O PERATING
E NGINEERS, L OCAL 399,
Defendant-Appellee,
Cross-Appellant.
Appeals from the United States District Court
for the Southern District of Illinois.
No. 3:07-cv-00205-MJR-CJP—Michael J. Reagan, Judge.
A RGUED JUNE 4, 2009—D ECIDED A UGUST 3, 2009
Before F LAUM, W OOD , and T INDER, Circuit Judges.
2 Nos. 08-4028 & 08-4130
F LAUM, Circuit Judge. Plaintiff George “Tom” Nemsky
brought a lawsuit against defendants ConocoPhillips
and the International Union of Operating Engineers,
Local 399, for breach of the defendants’ Collective Bar-
gaining Agreement and breach of the duty of fair represen-
tation, respectively. The district court granted summary
judgment to defendants and Nemsky appeals that ruling.
Local 399 also cross-appeals the district court’s denial
of Rule 11 sanctions against Nemsky. For the reasons
explained below, we affirm the judgment of the
district court in all respects.
I. Background
A. The Collective Bargaining Agreement and the 2004
Substance Abuse Policy
Nemsky worked as an operating engineer at
ConocoPhillips’s Wood River Refinery. The operating
engineers at Wood River were represented by the Inter-
national Union of Operating Engineers, Local 399. Local
399 and ConocoPhillips had a Collective Bargaining
Agreement (“CBA”) that governed the relationship be-
tween union members and ConocoPhillips. Article 20 of
the CBA stated that a represented employee “may be
disciplined, including discharge, only for just cause.”
Article 20 also provided that, if, after compliance with
normal discipline grievance procedures, a “complaint
[against ConocoPhillips] is not settled in a satisfactory
manner,” Local 399 “may submit the complaint to arbitra-
tion.” The CBA stated that, when arbitration is initiated,
Nos. 08-4028 & 08-4130 3
“it is understood and agreed that the arbitrator shall
determine whether the Company had just cause for
discipline.”
Article 21 of the CBA stated that ConocoPhillips could
make rules and regulations “from time to time . . . which
will not be in conflict with anything contained in this
Agreement.” Purportedly pursuant to the rule-making
authority outlined in Article 21, in 2004, ConocoPhillips
implemented a revised substance abuse policy for all of
its North American employees (the “2004 SAP”). The
2004 SAP provided for random drug and alcohol testing
for all employees, including those at the Wood River
Refinery. The 2004 SAP also stated that it was a violation
of the policy for employees to report for or remain on
duty if there were “any detectable trace amount” of
alcohol in their systems. The guidelines implementing
the policy defined “detectable trace amount” as a blood
alcohol content of 0.040 or greater. Under the 2004 SAP, the
“consequence of any confirmed positive test result [was]
termination.”
After the 2004 SAP was promulgated, Local 399, along
with the nine craft unions also represented at the
Wood River Refinery, filed a collective grievance re-
garding ConocoPhillips’s unilateral implementation of
the revised policy. Local 399 wished to arbitrate the
issue. However, ConocoPhillips maintained that the
2004 SAP was issued pursuant to its Article 21 rule-
making authority, that it was not part of the CBA, and
that issues arising from it were not subject to the CBA’s
grievance procedure. ConocoPhillips indicated that it
would not submit to arbitration unless the union agreed
4 Nos. 08-4028 & 08-4130
that it could seek de novo court review of the policy’s
substantive arbitrability, if necessary.
In addition to the collective grievance, on September 30,
2004, Local 399 filed an unfair labor practice charge
with the National Labor Relations Board (“the NLRB”)
regarding ConocoPhillips’s allegedly unlawful implemen-
tation of the 2004 SAP. The NLRB Regional Office dis-
missed the charge by letter on December 22, 2004 and
an NLRB agent advised George Machino, the business
representative of Local 399, of the futility of an appeal.
Machino testified that he had expected the NLRB to defer
the unfair labor practice charge to arbitration and when
that did not happen he concluded that the NLRB
agreed with ConocoPhillips that issues arising under
the 2004 SAP were not arbitrable. Machino also testified
that, around the time the NLRB filing was dismissed, he
knew that no ConocoPhillips union in the country had
been successful with grievances or unfair labor practices
charges resisting ConocoPhillips’s new SAP. Floyd
Fessler, Local 399’s business agent, likewise gave testi-
mony that Local 399 believed its options with regard to
the 2004 SAP were weak.
Machino testified that, with these concerns in mind,
Local 399 made “a conscious decision . . . to get the best
deal that [it] could get on behalf of the [union] members.”
Accordingly, Local 399 dropped its challenge to the 2004
SAP by entering into a “Memorandum of Agreement” (the
“MOA”) with ConocoPhillips on January 27, 2005. The
MOA stated that a “confirmed positive test” under the
SAP “shall be cause for immediate termination and such
termination shall not be subject to the grievance and
Nos. 08-4028 & 08-4130 5
arbitration provisions of the Collective Bargaining Agree-
ment.” However, the MOA also stated that Local 399
“continues to maintain the right to grieve and arbitrate
the integrity of the chain of custody process of the policy.”
At his deposition, Machino expressed satisfaction with
Local 399’s retention of the ability to grieve chain of
custody issues. Machino testified that, as far as he was
aware, Local 399 was the “only union in the country that
got any movement whatsoever in this policy” and stated
that he viewed the retention of Local 399’s right to
grieve chain of custody issues as “gaining a right for
Wood River employees that no other [ConocoPhillips]
employees had.”
B. Nemsky’s Termination
At the time of his termination, Nemsky had worked as
an operating engineer for the Wood River Refinery for
twenty-two years and had a history of solid work perfor-
mance. As an operating engineer, he occupied a safety-
sensitive post; one of his duties was to ensure that areas
of the refinery were cleared of combustible material so
as to minimize the possibility of an explosion at the
refinery.
Nemsky reported to work on September 20, 2006 (a
Wednesday) at 6:45 am. While working that morning, he
inadvertently kicked over a can of pipe cement and got
cement on his coveralls and shoe. He went to the restroom
and used a solvent to remove the pipe cement. During
the process of removing the cement, Nemsky was within
a small unvented space and he began to feel light-headed.
6 Nos. 08-4028 & 08-4130
After Nemsky left the restroom, he received a call
from his supervisor informing him that he had been
selected for a random drug and alcohol test pursuant to
the SAP. Nemsky proceeded to the medical office for
testing, where Nurse Pat Diener administered his first
alcohol test around 7:45 am. Diener testified that
Nemsky was fully cooperative through all testing. Prior
to conducting the test, Nemsky told Diener that he had
taken Robitussin immediately prior to reporting for
work, but Diener was apparently unconcerned that this
would taint the test. Nurse Diener used an Intoximeter
handheld breath test device to conduct the alcohol test-
ing. The first test given to Nemsky returned a 0.043 blood
alcohol level, a result which qualified as a “detectable trace
amount” of alcohol under the 2004 SAP. After the first test,
the testing instrument automatically ran a “blank.” The
“blank” test registered a 0.000 alcohol level, indicating
that there was no residual alcohol in the testing equip-
ment. After a fifteen minute wait, Diener gave Nemsky
a second test. which showed a blood alcohol level of
0.044. After the second test, the testing instrument auto-
matically required a calibration check. Diener conducted
the calibration check using a standard canister of gas
known to have an alcohol content of 0.037. Although the
Intoximeter device is considered to be in proper working
condition if the test measures within .005 of the known
standard, the calibration check registered precisely at the
level of the known standard, 0.037, without any measur-
able deviation.
After the second test, Nemsky called union official
Floyd Fessler and told him that he had failed an alcohol
Nos. 08-4028 & 08-4130 7
test. Fessler told him to get a blood test as quickly as
possible. Shortly after speaking with Fessler, Nemsky
told ConocoPhillips medical office personnel that he
needed to leave. Medical staff told him he could not
drive because he was impaired, but offered to get a cab
for him. Nemsky declined the cab.
Medical personnel gave Nemsky two additional breath
tests at 8:40 am and 9:56 am, which returned results of
0.026 and 0.000 respectively. Between these third and
fourth tests, Nurse Diener conducted another calibration
check, which again produced the accurate result of 0.037.
Plaintiff argues that the breath tests were false posi-
tives. However, he admitted at deposition that he con-
sumed between two and four beers the evening of Septem-
ber 19, 2006 (the night before his blood alcohol tests).
Moreover, Machino testified that Nemsky told him
two different stories regarding his consumption of
alcohol the night before the positive tests. Machino testi-
fied that about a week after the positive alcohol tests,
Nemsky told him that he had “two tall mugs of beer at
the bar after work and went home and may have had a
couple there.” A week or so after that, Nemsky sup-
posedly told Machino that “he had a few beers after
work, and you know how it is in a bar when they start
buying you drinks. There may have been a few shots
in there.” 1
1
Machino’s testimony regarding plaintiff’s statements to
him are the statements of a party-opponent, which are not
hearsay. See Fed. R. Evid. 801(d)(2).
8 Nos. 08-4028 & 08-4130
By certified letter dated September 22, 2006,
ConocoPhillips informed Nemsky that his employment
was terminated. On September 25, 2006, Nemsky asked
Local 399 to “contest my discharge per Article 20” of the
CBA. Local 399 sent at least two letters to ConocoPhillips
stating that the union believed Nemsky’s termination
“lack[ed] just cause” and indicating its intent to pro-
ceed to arbitration. By February 2007, Local 399 and
ConocoPhillips had each designated their representa-
tives for arbitration, yet no arbitration was ever held.
Nemsky filed suit with the NLRB against Local 399 and
ConocoPhillips on March 21, 2007, complaining that the
defendants had not followed through with arbitration.2
Fessler later testified that he was “not certain” why
arbitration had not occurred. Machino testified that
Local 399 stopped processing Nemsky’s arbitration at
least in part because Nemsky filed charges against the
union with the NLRB.
Nemsky filed a federal law suit in the Southern
District of Illinois. He alleged that ConocoPhillips had
breached the CBA and that Local 399 had breached the
duty of fair representation. ConocoPhillips and Local 399
filed motions for summary judgment and Local 399 also
asked for Rule 11 sanctions against Nemsky. The district
court granted summary judgment to both defendants
but denied the motion for sanctions. Nemsky appeals the
2
The parties’ briefs do not indicate the outcome of these
charges.
Nos. 08-4028 & 08-4130 9
grant of summary judgment to defendants and Local 399
cross-appeals the denial of Rule 11 sanctions.
II. Discussion
We review the district court’s grant of summary judg-
ment to defendants de novo. See Crider v. Spectrulite
Consortium, 130 F.3d 1238, 1241 (7th Cir. 1997). Summary
judgment is proper where “there is no genuine issue
of material fact and the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c).
Nemsky filed his claim against Local 399 and
ConocoPhillips under Section 301 of the Labor Manage-
ment Relations Act. See 29 U.S.C. § 185. That section
gives federal courts jurisdiction over suits to enforce
the terms of collective bargaining agreements. Id. Nemsky’s
claim is a so-called “hybrid 301” action because he
has sued Local 399 for breaching its duty of fair repre-
sentation and his employer for breaching the collective
bargaining agreement. Crider, 130 F.3d at 1241 (citing Ooley
v. Schwitzer Div., Household Manufacturing., Inc., 961 F.2d
1293, 1297-98 (7th Cir. 1992)). These two parts of Nemsky’s
claim are “inextricably interdependent”: he must estab-
lish both parts of his hybrid claim in order to prevail.
McLeod v. Arrow Marine Transp., Inc., 258 F.3d 608, 613
(7th Cir. 2001) (citing DelCostello v. Int’l Bhd. of Teamsters,
462 U.S. 151, 164-65 (1983)). “[N]either claim is viable if
the other fails.” Crider, 130 F.3d at 1241 (citing White v.
General Motors, 1 F.3d 593, 595 (7th Cir. 1993)).
10 Nos. 08-4028 & 08-4130
A. Duty of Fair Representation
The first part of Nemsky’s hybrid suit is his claim
against Local 399 for breach of the duty of fair representa-
tion.
“ ’National labor policy has been built on the premise
that by pooling their economic strength and acting
through a labor organization freely chosen by the
majority, the employees of an appropriate unit have the
most effective means of bargaining . . . .’ ” McLeod, 258
F.3d at 612-613 (quoting NLRB v. Allis-Chalmers Mfg. Co.,
388 U.S. 175, 180 (1967)). However, when individuals
join together, “the complete satisfaction of all who are
represented is hardly to be expected.” Id. (quoting Allis-
Chalmers, 388 U.S. at 180). Nonetheless, employees are
bound by the union’s actions. See id. To balance the
power bestowed upon a union to exclusively represent
all employees in employment disputes, “ ‘a concomitant
duty of fair representation [is owed by the union] to
each of its members.’ ” Id. (quoting Garcia v. Zenith Elecs.
Corp., 58 F.3d 1171, 1176 (7th Cir. 1995)).
A union breaches its duty to fairly represent a
member where its conduct toward a member is “arbitrary,
discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171,
190 (1967); Crider, 130 F.3d 1238, 1243. Each of these
possibilities are considered separately in determining
whether a breach has occurred. Id. (citation omitted).
Nemsky argues that the union acted arbitrarily by
entering into the MOA, which settled the union’s claims
against ConocoPhillips arising out of the company’s
enactment of the 2004 SAP. He claims that when Local 399
Nos. 08-4028 & 08-4130 11
agreed to the MOA, it “surrender[ed] the right of all
employees to ever again arbitrate a termination of em-
ployment for an alleged violation fo the Substance
Abuse Policy” and that this decision was “downright
irrational.” He alleges that Local 399’s motivation for
“caving in” to the company was its desire to obtain rein-
statement of two employees who had been terminated
for alleged violations of the SAP, a trade-off that Nemsky
again characterizes as “irrational.” Finally, Nemsky
rejects the notion that the union obtained a concession
from ConocoPhillips by maintaining the right to grieve
“chain of custody” issues with regard to the 2004 SAP.
Rather, he believes that this clause only gave the union a
right to grieve a narrow class of cases and that the
union’s belief “that [the union] got something when the
company agreed to comply with legal requirements
regarding ‘chain of custody’ only reinforces the con-
clusion that the union acted arbitrarily and irrationally
when it gave away the critical ‘just cause’ protections.”
This court has described the test test for determining
whether a union’s conduct is arbitrary as “quite forgiving.”
See Garcia, 58 F.3d at 1176; accord McLeod, 258 F.3d at 613.
Indeed, a union’s actions will only be deemed arbitrary
if, in light of the factual and legal landscape at the time
of the union’s actions, the union’s behavior “is so far
outside a wide range of reasonableness, ‘as to be irrationa”l.’
Id. (quoting Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65,
67 (1991)) (additional citations omitted).
We agree with the district court that no rational jury
could find that the union was “irrational” under this
highly deferential standard. At the time Local 399 signed
12 Nos. 08-4028 & 08-4130
the MOA, its unfair labor practice claims regarding the
2004 SAP had been dismissed by the NLRB, an NLRB agent
had informed a union official that an appeal would be
futile, and no other ConocoPhillips union in the country
had succeeded in challenging the policy. It also bears
noting that, at the time Local 399 signed the MOA, the
union was aware that the Third Circuit Court of Appeals
had recently upheld a refinery’s unilateral imposition of
a national “zero tolerance” drug and alcohol policy
based on the employer’s contractual right to promulgate
disciplinary rules. See CITGO Asphalt Refinery Co. v. Local 2-
991, 385 F.3d 809 (3d Cir. 2004). While we cannot pass
on the wisdom of the union’s abandonment of its chal-
lenge to the 2004 SAP and concomitant agreement to the
MOA, the circumstances described above show that
the union’s execution of the MOA was not arbitrary or
irrational. 3
3
Moreover, although we look only to “the legal landscape at
the time” of the union’s decision to determine arbitrariness,
see O’Neill, 499 U.S. at 799, nothing precludes our use of hind-
sight to confirm the correctness of factors considered by Local
399 when it decided to sign the MOA. As mentioned, after Local
399 signed the MOA, a ConocoPhillips union in Texas chal-
lenged the SAP in two arbitrations and lost both. The
arbitrators in those cases specifically found that ConocoPhillips
had the authority under the CBA to unilaterally revise the
SAP to reflect that an employee could be discharged if he
tested positive, even one time, on a random drug test. Though
we express no opinion regarding the correctness of these
results, they provide further support for Local 399’s decision
to enter into the MOA.
Nos. 08-4028 & 08-4130 13
Although his argument is less than cogent on this point,
Nemsky also seems to argue that the union abandoned
the arbitration of his termination in bad faith. See Vaca,
386 U.S. at 190. Specifically, Nemsky argues that Local
399 abandoned the arbitration of his termination in re-
taliation for his filing of charges against the union in
the NLRB.
A union’s failure or refusal to arbitrate a grievance
because a member files charges against it is a breach of the
duty of fair representation. See 29 U.S.C. § 411(a)(4) (“No
labor organization shall limit the right of any member
thereof to institute an action in any court, or in a pro-
ceeding before any administrative agency.”); see also
NLRB v. Industrial Union of Marine & Shipbuilding Workers,
391 U.S. 418, 424 (1968) (“[T]here should be as great a
freedom to ask the Board for relief as there is to petition
any other department of government for a redress of
grievances. Any coercion used to discourage, retard, or
defeat that access is beyond the legitimate interests of a
labor organization.”); Kesner v. NLRB, 532 F.2d 1169, 1175
(7th Cir. 1976), cert. denied, 429 U.S. 1022 (1976) (holding
that once a union has decided to take a grievance to
arbitration, it breaches the duty of fair representation if
it then fails to “fully and fairly advocat[e]” on behalf of
grievant). Unlike the arbitrariness inquiry, which looks
to the objective adequacy of the union’s conduct, the
bad faith analysis focus on the subjective motivation of
union officials. Crider, 130 F.3d at 1243 (citing Trnka v.
Local Union No. 688, 30 F.3d 60, 63 (7th Cir. 1994)).
As noted above, in February 2007, the union informed
ConocoPhillips that it believed Nemsky’s termination
14 Nos. 08-4028 & 08-4130
“lack[ed] just cause” and indicated an intent to proceed to
arbitration. Despite their current litigation position
that Nemsky’s termination could not be grieved or arbi-
trated, it is undisputed that by the end of February 2007,
Local 399 and ConocoPhillips had each designated repre-
sentatives for the purpose of moving forward with arbitra-
tion of the grievance. But no arbitration was ultimately
held. Fessler testified that he “[was] not certain” why the
arbitration had not occurred, while Machino testified:
“quite frankly, it got stopped when [Nemsky] filed the
charges against us” with the NLRB. Nemsky argues that
Machino’s testimony shows that the union failed to
arbitrate his grievance in retaliation for the charges he
filed against the union with the NLRB.
Machino’s deposition testimony provides strong evi-
dence in Nemsky’s favor in this regard. Machino
testified as follows:
Q. Is there any other reason other than the fact that
he didn’t go to the hospital that the union didn’t
push his termination to arbitration?
A. Any other reasons. Well, quite frankly, it got
stopped when he filed the charges against us for
not doing it, and it was pending at the time.
Q. So why would the fact he filed a Section 301 claim
against the union stop the union from arbitrating
his termination?
....
A. He took the position that we weren’t going to.
Nos. 08-4028 & 08-4130 15
Q. So why would that stop you? If he took the posi-
tion that the Cubs are a better baseball team than the
Cardinals, why—that wouldn’t stop it?
A. It was stopped on the basis we didn’t feel we had
a case because he didn’t comply. And at that point,
he quit communicating with us in regards to—he
took the position we weren’t going to do it, so we
were kind of out of bounds at that point in time.
The district court concluded from this testimony that
the union abandoned the arbitration of Nemsky’s ter-
mination “because (1) the Union felt it had no case
since Nemsky did not comply with Fessler’s urging
that he have a blood test; and (2) Nemsky stopped com-
municating with the Union because he took the position
that the Union was not going to arbitrate the issue.” But
we respectfully submit that the district court’s reading
does not take note of a third reason that emerges from
Machino’s testimony: that the union stopped pursuing
arbitration because Nemsky filed charges against it, as
Machino stated in response to the first question
excerpted above. Machino’s statement in this regard is
direct evidence of Local 399’s alleged motivation for
the abandonment, and would be sufficient to preclude
summary judgment on this aspect of Nemsky’s claim.
B. Whether ConocoPhillips Breached the CBA
As noted above, in a “hybrid 301” claim, the em-
ployee’s claim against the union and his claim against
the employer are linked: “neither claim is viable if the
16 Nos. 08-4028 & 08-4130
other fails.” Crider, 130 F.3d at 1241 (citing White v. General
Motors, 1 F.3d 593, 595 (7th Cir. 1993)). Here, Nemsky
provided evidence that the union breached the duty of
fair representation when it failed to arbitrate his griev-
ance. So we next inquire into the second part of Nemsky’s
hybrid claim: whether ConocoPhillips breached the CBA.4
Neither party disputes that Nemsky was terminated
because of a confirmed positive alcohol test conducted
pursuant to the 2004 SAP. But plaintiff asserts that
ConocoPhillips’s enactment of the 2004 SAP breached
the CBA. He points out that the 2004 SAP stated that “the
consequence of any confirmed positive test result will
be termination,” while the CBA required that a termina-
tion be supported by just cause. This argument has some
appeal, as the CBA and 2004 SAP are certainly in tension
in this regard. Plaintiff’s argument fails, however, because
4
Plaintiff argues that an employee suing his union under
Section 301 for breach of the duty of fair representation in
negotiations need not prove that his employer breached the
CBA (although he admits that he must prove a breach of the
CBA if his fair representation claim hinges on the union’s
alleged failure to arbitrate). Because plaintiff has not shown
that the union breached its duty of fair representation in
negotiating the MOA (as explained, supra), plaintiff’s conten-
tion that he need not prove a violation of the CBA in this
particular context is not relevant. However, even if we were
to consider that argument, plaintiff provides no case law or
other authority to support his suggestion that we recognize
an exception to settled precedent in these circumstances. We
thus reject Nemsky’s argument as without merit.
Nos. 08-4028 & 08-4130 17
the union put any objections to the 2004 SAP aside when
it entered into the MOA in early 2005. The MOA
essentially operated as an amendment to the CBA and
any claim that ConocoPhillips breached the CBA was
resolved when the union entered into that agreement.
Nemsky has advanced no other viable breach of
contract theory, and his hybrid claim therefore cannot
succeed.
C. Is Plaintiff Entitled to “Some Forum?”
Plaintiff’s final argument is that, despite the union’s
agreement to the MOA, he “must be afforded an alterna-
tive venue to enforce the remaining ‘just cause’ provision”
in the CBA. Nemsky cites McNealy v. Caterpillar, 139 F.3d
1113 (7th Cir. 1998) for the proposition that “to have any
reality the ‘just cause’ provision must be subject to a
‘neutral review of the firing decision.’ ” Nemsky is
correct that if he had the right to a just cause inquiry,
McNealy suggests he had the right to neutral review
under that provision. But Nemsky did not have the right
to a just cause inquiry: “just cause” is not a constitu-
tional or even a statutory right; rather it is a contractual
right to be decided and governed by the bargaining
between the parties. Here, the union decided to
give up its challenge to the 2004 SAP, which provided
for termination without a just cause inquiry, and to sign
the MOA, which explicitly recognized that those termi-
nated under the 2004 SAP could only grieve chain of
custody issues. Because Nemsky was fired in accordance
with the terms of the 2004 SAP and the MOA, he does not
have the right to a just cause inquiry.
18 Nos. 08-4028 & 08-4130
D. Rule 11 Sanctions
Local 399 moved for Rule 11 sanctions against Nemsky,
which the district court denied. Local 399 now cross-
appeals the denial of sanctions. We review a district
court’s denial of Rule 11 sanctions for abuse of discretion.
See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990).
Local 399 presents a convoluted argument for sanctions.
It points out that Nemsky’s complaint originally alleged
that the MOA was the result of a secret deal between
ConocoPhillips and the union. Nemsky’s counsel later
stated in an affidavit, in response to ConocoPhillips’s
motion for summary judgment, that he believed his
theory of a secret deal would be borne out by the deposi-
tions of Patricia Diener, the nurse who administered
the breath tests, and Jay Hawley, ConocoPhillips’s desig-
nated corporate representative. According to Local 399,
depositions were taken on February 28 and 29, 2008,
during which Jay Hawley was present and available to
be deposed. However, Nemsky’s counsel never took
Hawley’s deposition. Local 399 argues that Nemsky’s
counsel’s failure to take Hawley’s deposition was “objec-
tive conduct, consistent with the subjective conclusion
that, considering the depositions taken on February 28
and 29 and the documents produced by Local 399
showing there was no ‘secret deal,’ plaintiff’s counsel
concluded Hawley’s deposition would be a waste of time
and money.” Local 399 argues that, having concluded
that there was no “secret deal,” plaintiff was obligated
to dismiss his action.
The chain of inferences Local 399 asks this court to
make in order to conclude that Nemsky should have
Nos. 08-4028 & 08-4130 19
dismissed his action at an earlier date can be described
as speculative at best. Local 399 has not shown that
Nemsky litigated in bad faith or that he advanced a
frivolous claim. It certainly has not shown that the
district court abused its discretion in denying sanctions.
We affirm in this regard.
III. Conclusion
Nemsky provided evidence that the union failed to
arbitrate his grievance in good faith and thus breached its
duty of fair representation. However, plaintiff did not
provide evidence that ConocoPhillips breached the CBA.
Nemsky was required to establish sufficient evidence
of both claims in order to proceed to trial on his hybrid
suit. We therefore A FFIRM the district court’s grant of
summary judgment. We also A FFIRM the district court’s
denial of Rule 11 sanctions to Local 399.
8-3-09