Patricia Rupcich v. United Food

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3377
P ATRICIA R UPCICH,
Plaintiff‐Appellant,
v.
U NITED FOOD AND C OMMERCIAL WORKERS INTERNATIONAL
U NION, LOCAL 881, and J EWEL FOOD STORES, INC.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12‐CV‐6615 — John Z. Lee, Judge.
____________________
A RGUED OCTOBER 27, 2015 — D ECIDED A UGUST 17, 2016
____________________
Before KANNE and R OVNER , Circuit Judges, and BRUCE ,
District Judge. 
The Honorable Colin S. Bruce, of the United States District Court for the
Central District of Illinois, sitting by designation.

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2 No. 14‐3377
KANNE , Circuit Judge. Plaintiff Patricia Rupcich was fired
from her job of twenty‐five years at one of Defendant Jewel
Food Stores, Inc.’s stores in January 2012 for wheeling a
twenty‐five pound bag of birdseed in a grocery cart past the
last cash register without paying for it. Rupcich said that she
wheeled the birdseed past the last cash register by accident,
as she rushed home to care for her sick grandson after her
shift ended. That this may in fact be true is irrelevant, ac‐
cording to Jewel, because it claims to define “misappropria‐
tion” and theft to be strict liability violations that do not re‐
quire a showing of intent. Of course, there does not appear
to be evidence that Jewel communicated this definition to
Rupcich. There is evidence, however, that it relayed this in‐
formation to Rupcich’s union, Defendant United Food and
Commercial Workers International, Local 881, which decid‐
ed not to dispute her termination with Jewel in arbitration or
even process it through the collectively bargained grievance
procedure. Instead, Local 881 abandoned her case because
Rupcich admitted she took the bag of birdseed past the last
cash register in her store without paying for it. Local 881
made this decision despite substantial evidence that Rupcich
had made an inadvertent mistake in her rush to get her
grandson to the doctor.
Rupcich filed this complaint alleging amongst other theo‐
ries that Local 881 breached its duty of fair representation to
her and that Jewel breached the relevant collective bargain‐
ing agreement. 1 The parties cross‐moved for summary
1 Rupcich also alleged state defamation claims against Jewel. The district
court granted Jewel’s motion for summary judgment on those claims.
Rupcich does not appeal that decision.

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No. 14‐3377 3
judgment, with Local 881 arguing that the great amount of
deference afforded unions under federal labor law shielded
any questionable decisions it may have made in declining to
pursue Rupcich’s grievance. The district court agreed, and
on that basis, granted Local 881 and Jewel’s motions for
summary judgment on the breach of fair duty of representa‐
tion claim and breach of contract claim, respectively. It de‐
nied Rupcich’s motions for summary judgment.
Rupcich appeals the district court’s decisions on her
claims for breach of the duty of fair representation and
breach of the collective bargaining agreement. Finding that a
reasonable juror could determine that Local 881’s actions in
this case were arbitrary and outside the “wide range of rea‐
sonableness” afforded unions in the grievance process, see
Air Line Pilots Assʹn, Intʹl v. OʹNeill, 499 U.S. 65, 67 (1991) (in‐
ternal quotation marks omitted), we reverse the district
court’s decision granting summary judgment to Local 881
and Jewel on Rupcich’s claims against them. We do, howev‐
er, affirm the district court’s decision to deny Rupcich’s mo‐
tions for summary judgment.
I. BACKGROUND
A. Factual Background
Rupcich worked for a Jewel grocery store in Chicago’s
East Side neighborhood from November 1986 until her ter‐
mination on January 31, 2012. During her twenty‐five year
tenure as a Jewel employee, Rupcich was also a member of
Local 881. Local 881 had negotiated a collective bargaining
agreement with Jewel entitled “Local 881 UFCW Contract
2010‐2013 Jewel Food Stores, Inc. Chicagoland” (“CBA”),
which governed Rupcich and other Jewel employees’ rela‐

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4 No. 14‐3377
tionship with Local 881 and Jewel. This CBA was in effect at
the time of Rupcich’s dismissal from Jewel.
On January 19, 2012, Rupcich was performing her duties
as a receiving clerk at the East Side Jewel when she received
a call from her husband around 12:15 p.m. Rupcich’s hus‐
band, who had been babysitting their grandchildren while
she worked that day, called Rupcich to tell her that her
grandson was ill and to ask for her to come home immedi‐
ately to help. After speaking with her daughter—the child’s
mother—regarding the situation, Rupcich decided to finish
her shift, which ended at 1 p.m. Rupcich planned to go
home, pick up her grandson, and take him to a doctor’s of‐
fice around 2 p.m.
During her shift that day, Rupcich had been cleaning the
receiving area and came across two bags of birdseed. Rup‐
cich scanned one bag and discarded it as damaged; as for the
other bag, Rupcich placed it in the shopping cart. According
to Rupcich, she planned to return the bag of birdseed to the
front of the store as she left for the day. Rupcich said it was
her practice to bring overstock items like the bag of birdseed
to the front of the store. Rupcich packed up her personal be‐
longings—her winter attire, her coffee cup, the lunch she
paid for at Jewel, and a receipt for the lunch—and placed
them in the cart’s child seat. The birdseed bag was in the
cart’s main carriage.
After clocking out at the front of the store, Rupcich rolled
the shopping cart with her personal belongings and birdseed
bag past the last point of sale and headed to the exit where
Jewel Loss Prevention Associate Gregory Young was stand‐
ing. Young asked to see Rupcich’s receipt for the birdseed
bag, which, according to Young, was not concealed. Rupcich

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No. 14‐3377 5
testified she realized her mistake, apologized, explained to
Young that her grandson was sick, and wheeled the cart
with the birdseed to the wall by the service desk and self‐
checkout. Young told Rupcich he would have to report the
incident to his supervisor. According to Young, he made this
report even though he did not believe that Rupcich intended
to steal the birdseed. After their brief conversation, Rupcich
proceeded home and took her grandson to the doctor.
Young informed his supervisors, including Jewel Loss
Prevention Manager Marty Oppenhauser, of the incident. He
also completed a Security/Loss Prevention Incident Report
in which he recounted the incident. In the account, Young
states that Rupcich told him she had forgotten about the
birdseed and that it was overstock.
Oppenhauser was directed to investigate the January 19
incident. According to Oppenhauser, he viewed a video
showing Rupcich’s movements from the receiving area to
the front and filled out a “Digital Video Evidence Log” re‐
counting meaningful events in Rupcich’s journey. On Janu‐
ary 23, 2012, Oppenhauser interviewed Rupcich. Rupcich
provided an account substantially similar to the one dis‐
cussed above. A decision was then made to suspend Rup‐
cich until further review.
Rupcich contacted her Union representative, Marcella
Robinson, the same day to report the suspension and pro‐
vide her version of events. Robinson told Rupcich that she
would attempt to determine the status of Rupcich’s case.
Robinson then contacted Rupcich’s store manager, Raymond
Ulatowski. The two had a brief conversation in which Ula‐
towski did not provide any information on Rupcich’s case
and directed Robinson to contact Jewel’s loss prevention de‐

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6 No. 14‐3377
partment. Robinson then proceeded to file a grievance on
Rupcich’s behalf and sent a letter to Jewel seeking security
reports, video, and any other documentation related to Rup‐
cich’s suspension.
After his meeting with Rupcich, Oppenhauser forwarded
the information he gathered from his investigation to his su‐
periors. Those investigative results included: (1) Oppen‐
hauser’s memorandum summarizing his interview with
Rupcich; (2) Rupcich’s written statement; (3) Oppenhauser’s
video log; and (4) Young’s report. Oppenhauser did not in‐
terview Young or anyone else from the store who may have
known Rupcich or witnessed the January 19 incident.
John Novosel, a Jewel associate relations representative,
reviewed that investigative file and the video of the incident
before making the determination to terminate Rupcich. In
making this determination, Novosel relied on Jewel’s
“strict[ly] enforc[ed]” misappropriation policy, which, ac‐
cording to Novosel, operates under the following strictures:
(1) any taking of unpaid for merchandise past the last point
of sale—the last cash register or self‐checkout terminal—is
considered “theft” under the policy; (2) it is Jewel’s policy to
terminate anyone who violates the policy, unless “special or
mitigating circumstances exist”; (3) an “employee’s intent or
state of mind” in taking that unpaid merchandise past the
point of sale is irrelevant in enforcing Jewel’s misappropria‐
tion policy; and (4) “forgetting to pay for product” is not a
“special or mitigating circumstance” under the policy. No‐
vosel concluded that the video showed Rupcich walk past
the final point of sale with unpaid merchandise in her cart
and that her explanation for doing so did not qualify as a
“special or mitigating circumstance.” After making this deci‐

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No. 14‐3377 7
sion, Novosel prepared an “Associate Corrective Action Re‐
view,” which memorialized his decision to terminate Rup‐
cich for “[m]isappropriation of Company property.”
Following Novosel’s decision, Jewel contacted Rupcich
and asked her to attend a meeting on January 31. Rupcich
contacted Robinson who went with Rupcich to the meeting.
At the meeting, Ulatowski told Rupcich that Jewel had de‐
cided to terminate her employment and asked her to sign the
“Associate Corrective Action Review.” On Robinson’s ad‐
vice, Rupcich refused to sign the form.
On February 4, Jewel denied Rupcich’s previously filed
grievance, which prompted Robinson to meet with the Un‐
ion’s Grievance Coordinator, Bill O’Keefe, to discuss the Un‐
ion’s next steps. O’Keefe and Robinson reviewed the inves‐
tigative file, which included video stills showing Rupcich
being stopped by store security past the point of sale, Rup‐
cich’s statement, and a document entitled “Security/Loss
Prevention Detailed Case Report” that states Rupcich’s of‐
fense was “Misappropriation” and her offense category was
“Dishonesty/Criminal Acts.” It is undisputed that Jewel did
not provide the Union the video of the incident, just photo
stills. O’Keefe and Robinson also discussed Rupcich’s state‐
ments to Robinson. O’Keefe decided not to pursue arbitra‐
tion based on “Jewel’s well‐established practice of terminat‐
ing employees who are stopped past the point of purchase
with unpaid merchandise.” Rupcich was subsequently in‐
formed that the Union would not be pursuing her grievance.
Rupcich and her attorney appealed O’Keefe’s decision to
the Union’s Executive Board. Included in their appeal was:
(1) a doctor’s note indicating that Rupcich’s grandson had
been seen by a doctor for difficulty breathing on January 19,

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8 No. 14‐3377
2012, and (2) a signed statement from a clerk in the Thornton
Police Department indicating Rupcich had informed the de‐
partment she could not perform her duties as a crossing
guard on the afternoon of January 19 because “her grandson
had a respiratory emergency.” The Executive Board denied
her appeal.
B. Procedural Posture
On August 17, 2012, Rupcich filed a complaint against
the Union and Jewel alleging that: (1) the Union breached its
duty of fair representation pursuant to section 301 of the La‐
bor Management Relations Act (“LMRA”), 29 U.S.C. § 185;
and (2) Jewel breached the CBA in place between it and the
Union. Rupcich filed an amended complaint in January 2013,
adding claims for defamation per se and defamation per quod
against Jewel.
The parties filed cross‐motions for summary judgment in
October 2013. In September 2014, the district court granted
the Union’s motion for summary judgment on the fair‐
representation claim and Jewel’s motion on the defamation
claim claims and breach of the CBA claim. In ruling for the
Union, the district court concluded the evidence did not
demonstrate that the Union acted in an arbitrary manner in
deciding not to pursue Rupcich’s arbitration claim. It then
found that because her claim against the union failed, her
claim against Jewel for breach of the CBA failed as well. This
appeal followed.
II. A NALYSIS
Rupcich advances two arguments on appeal. First, the
district court erred in granting summary judgment in the
Union’s favor on the fair‐representation claim because the

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No. 14‐3377 9
Union acted arbitrarily in failing to follow the CBA’s griev‐
ance procedure and in declining to pursue Rupcich’s griev‐
ance to arbitration. Second, the district court erred in grant‐
ing summary judgment for Jewel and declining to grant her
summary judgment on the breach‐of‐contract claim in light
of the undisputed evidence that Rupcich accidentally kept
the birdseed in her cart when she left her shift to tend to a
family emergency.
We review a district court’s decision to grant summary
judgment de novo. Nemsky v. ConocoPhillips Co., 574 F.3d 859,
864 (7th Cir. 2009). In reviewing a decision following cross‐
motions for summary judgment, “our review of the record
requires that we construe all inferences in favor of the party
against whom the motion under consideration is made.”
Hendricks–Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir.
1998). We affirm summary judgment only when our review
of the record reveals “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is
appropriate then “if, on the evidence presented, no reasona‐
ble juror could return a verdict in [the non‐moving party’s]
favor.” Sorensen v. WD‐40 Co., 792 F.3d 712, 722 (7th Cir.
2015).
Rupcich filed suit against the Union and Jewel under Sec‐
tion 301 of the LMRA, which grants federal courts jurisdic‐
tion to enforce collective bargaining agreements. See 29
U.S.C. § 185. Rupcich’s suit is often referred to as a “hybrid
301” action because she has alleged that her Union breached
its duty of fair representation and that her employer
breached the CBA. See Nemsky, 574 F.3d at 864. The “two
claims are inextricably interdependent. To prevail against

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10 No. 14‐3377
either the company or the Union, [Rupcich] must not only
show that [her] discharge was contrary to the contract but
must also carry the burden of demonstrating a breach of du‐
ty by the Union.” DelCostello v. Intʹl Bhd. of Teamsters, 462
U.S. 151, 164–65 (1983) (internal quotation marks omitted). If
one claim fails, “neither claim is viable.” Crider v. Spectrulite
Consortium, Inc., 130 F.3d 1238, 1241 (7th Cir. 1997).
A. Breach of the Duty of Fair Representation
A union is the “exclusive bargaining representative” for
its members and, as such, has a duty “fairly to represent” all
of them, “both in its collective bargaining with [an employ‐
er] and in its enforcement of the resulting collective bargain‐
ing agreement.” Vaca v. Sipes, 386 U.S. 171, 177 (1967) (cita‐
tions omitted). The union’s duty of fair representation ex‐
tends to its negotiations with an employer concerning an
“employee’s terms and conditions of employment, and pro‐
visions for processing his grievances.” NLRB v. Allis‐
Chalmers Mfg. Co., 388 U.S. 175, 180 (1967)(footnote omitted).
An “employee may disagree with many of the union de‐
cisions but is bound by them. The majority‐rule concept is
today unquestionably at the center of our federal labor poli‐
cy. The complete satisfaction of all who are represented is
hardly to be expected.” Id. (internal quotation marks omit‐
ted) (footnote omitted)). That is why “[a] wide range of rea‐
sonableness must be allowed a statutory bargaining repre‐
sentative in serving the unit it represents, subject always to
complete good faith and honesty of purpose in the exercise
of its discretion.” Id. (internal quotation marks omitted).
With these principles in mind, the Supreme Court has long
held that “a union breaches its duty of fair representation if
its actions are either arbitrary, discriminatory, or in bad

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No. 14‐3377 11
faith.” O’Neill, 499 U.S. at 67 (internal quotation marks omit‐
ted) (citing Vaca, 386 U.S. at 190). The duty is “thus akin to
the duty owed by other fiduciaries to their beneficiaries.” Id.
at 74.
Rupcich argues that the Union’s actions in her case were
arbitrary and in bad faith, but not discriminatory. We ana‐
lyze the Union’s actions under those two elements of the tri‐
partite standard, keeping in mind that Rupcich need only
“proffer evidence supporting at least one of these elements”
to survive summary judgment. Filippo v. N. Ind. Pub. Serv.
Corp., 141 F.3d 744, 749 (7th Cir. 1998).
1. Arbitrary
The Supreme Court has held that a “union’s actions are
arbitrary only 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 irrational.”
O’Neill, 499 U.S. at 67 (citation and internal quotation marks
omitted). Determining whether a union’s actions are arbi‐
trary under this standard requires “an objective inquiry.”
Neal v. Newspaper Holdings, Inc., 349 F.3d 363, 369 (7th Cir.
2003). “In applying this extremely deferential standard, we
will not substitute [our] judgment for that of the union, even
if, with the benefit of hindsight, it appears that the union
could have made a better call.” McKelvin v. E.J. Brach Corp.,
124 F.3d 864, 867 (7th Cir. 1997) (alteration in original) (quot‐
ing Garcia v. Zenith Elecs. Corp., 58 F.3d 1171, 1176 (7th Cir.
1995)). That is why we require a plaintiff making out such a
claim to prove: (1) that her “position is [not just] as plausible
as the union’s, but to show that the union’s position could
eventually be deemed not even colorable.” id at 868 (internal
quotation marks omitted), and (2) that she “was actually

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12 No. 14‐3377
harmed by the union’s actions,” that is, she must demon‐
strate “the outcome … would probably have been different
but for the union’s activities,” Garcia, 58 F.3d at 1176. The
union need not be the only cause, as the employer is often a
culpable party in such cases, too. Rather, the union’s actions
must at least probably be a substantial factor in causing the
plaintiff’s injuries.
Local 881’s position appears to be that the “broad author‐
ity” granted to unions is absolute in handling grievance mat‐
ters. See id. at 1175. It is not. Even “a wide range of reasona‐
bleness” has bounds, and in this case, a reasonable juror
could find Local 881 has exceeded them in two ways. There
is sufficient evidence for a reasonable juror to find that Local
881: (1) ignored the plain language of the CBA’s grievance
policy and Rupcich’s contractual rights in processing her
grievance, and (2) handled a “substantively similar griev‐
ance[] differently from” Rupcich’s, see Trnka v. Local Union
No. 688, United Auto., Aerospace & Agric. Implement Workers of
Am., 30 F.3d 60, 61 (7th Cir. 1994). Rupcich has also offered
enough evidence for a reasonable juror to conclude that she
may have kept her job had Local 881 processed her griev‐
ance in accordance with the procedure and pursued her
claim in arbitration.
We start with the language of the grievance policy con‐
tained in the CBA and Local 881’s application of it, or more
properly stated, its disregard for it. Determining whether a
provision in a collective bargaining agreement is unambigu‐
ous is a question of law as is interpreting what that provi‐
sion means. Bennett v. Local Union No. 66, Glass, Molders, Pot‐
tery, Plastics & Allied Workers Intʹl Union, AFL‐CIO, CLC, 958

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No. 14‐3377 13
F.2d 1429, 1434 (7th Cir. 1992). Both questions are subject to
de novo review. Id.
The CBA’s grievance procedure can be found in Section
9.2 of the CBA and states in relevant part: “A grievance may
be initiated by any individual employee, by the Union or by
[Jewel]. Once initiated, the following steps shall be taken to
settle such grievance … .” (emphasis added). The provision
then sets out a three‐step process for resolving grievances.
Under the policy, all “[g]rievances involving only one (1)
store shall be introduced only at Step 1.” (emphasis added).
Step 1 of the CBA mandates that there be a conference be‐
tween the aggrieved employee, her store’s director or assis‐
tant store director, and her Local 881 representative.
It is undisputed that Robinson filed a grievance on Rup‐
cich’s behalf prior to her termination and that this grievance
only involved one store. 2 Under the CBA, Rupcich was enti‐
tled to a Step 1 conference. She did not receive one. In fact,
Local 881’s counsel conceded during oral argument that the
Union did not perform any of the three steps under its
grievance policy. Local 881 argues that it did not need to do
so because of Local 881 and Jewel’s “long‐standing practice
of bypassing Step 1 in cases of termination.” That this prac‐
tice ignored the plain language of the CBA was of no conse‐
quence, according to Local 881, as “[u]nions are ‘accorded
considerable discretion in dealing with grievance matters.’”
(Local 881 Br. at 13 (quoting Garcia, 58 F.3d at 1176).)
2 The district court stated that the grievance had been filed after Rup‐
cich’s termination. The evidence in the record demonstrates that the
grievance had been filed after Rupcich’s suspension but prior to her ter‐
mination.

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14 No. 14‐3377
Local 881 is correct that unions are afforded considerable
discretion in their handling of grievance matters. We have
recognized in a case upholding a union’s decision not to
pursue a member’s grievance that a union “has discretion to
act in consideration of such factors as the wise allocation of
its own resources, its relationship with other employees, and
its relationship with the employer.” Neal, 349 F.3d at 369.
That discretion, however, does not empower Local 881 to
ignore the CBA’s plain text where doing so alters an em‐
ployee’s fundamental rights—such as the right to contest
one’s termination through a grievance process—through a
side arrangement or agreement. Such a side arrangement is
contrary to “national labor policy” and “unenforceable as a
matter of law” when the arrangement’s terms “contradict
fundamental terms of a ratified collective bargaining con‐
tract.” Merk v. Jewel Food Stores Div. of Jewel Cos., Inc., 945
F.2d 889, 894 (7th Cir. 1991).
Section 9.2 of the CBA states that once a grievance is
filed, “the following steps shall be taken to settle such griev‐
ance.” The word “shall” means that Local 881 had to follow
the CBA’s grievance procedure in processing Rupcich’s
claim. It is not a discretionary directive left for the interpre‐
tation by Local 881 and/or Jewel. Had Local 881 wanted to
change its grievance procedure to reflect its “long‐standing
agreement” with Jewel, it could have amended the CBA
pursuant to Section 2.6. But to do so, the parties would have
had to execute a written agreement. Neither Local 881 nor
Jewel produced evidence of such a written agreement. And,
if they had executed such an agreement, the amendment
would have had to be added to the CBA and displayed in
stores pursuant to Section 8.9, which requires a copy of the
CBA “at a place where every employee may have equal and

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No. 14‐3377 15
easy access to same.” There is no evidence of such an updat‐
ed CBA being posted at Rupcich’s Jewel store or other Jewel
stores.
The Second Circuit confronted a similar situation in Lewis
v. Tuscan Dairy Farms, Inc., 25 F.3d 1138 (2d Cir. 1994). There,
the union made a secret agreement with a company that re‐
sulted in a change to the employees’ seniority rights under
the CBA. In affirming a jury verdict finding the union’s ac‐
tions arbitrary, the Second Circuit observed the union “took
no steps to obtain a proper modification” of the CBA, even
though union by‐laws required approval and modification
of the CBA. Id. at 1143. Confronted with these facts, the Sec‐
ond Circuit concluded that “[n]o range of reasonableness
can encompass such conduct by a union official.” Id. (inter‐
nal quotation marks and citation omitted).
On the record before us, the same can be said of Local
881’s actions. This side arrangement, which purports to re‐
move contractual avenues of review for grievances at the
Union’s whim, is the type of side arrangement that “contra‐
dict[s] fundamental terms of a ratified collective bargaining
contract.” Merk, 945 F.2d at 894. It follows then that a jury
could reasonably conclude that using such a side arrange‐
ment when processing Rupcich’s grievance was “so far out‐
side a wide range of reasonableness, as to be irrational.”
O’Neill, 499 U.S. at 67 (internal quotation marks omitted). See
Aguinaga v. United Food & Commercial Workers Int’l Union, 993
F.2d 1463, 1471 (10th Cir. 1993) (agreeing with a jury verdict
that a secret agreement entered into between a company and
a union was arbitrary conduct and observing that such con‐
duct “involve[d] the primary concern that the duty of fair
representation was designed to address—i.e., the concern

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16 No. 14‐3377
that individual employees not be deprived of all effective
means of protecting their own interests.”)
Rupcich also argues that Local 881 acted arbitrarily to‐
ward her in declining to pursue her grievance to arbitration
when it had taken a substantively similar grievance to arbi‐
tration. We agree that a reasonable juror could conclude that
this behavior was arbitrary. Part of the reason for why the
Supreme Court believed it appropriate for unions to control
the grievance process was the belief that unions would treat
similar grievances in a consistent fashion. See Vaca, 386 U.S.
at 191 (“[B]oth sides are assured that similar complaints will
be treated consistently … .”). As such, a union’s actions may
be considered arbitrary if they have treated substantively
similar grievances in a different manner. See Trnka, 30 F.3d at
61. Treating similar situations differently without adequate
explanation is the very embodiment of arbitrary conduct.
That is the rule in the agency context, see, e.g., Yetman v. Gar‐
vey, 261 F.3d 664, 669 (7th Cir. 2001) (“[A]gency action is
considered arbitrary when the agency has offered insuffi‐
cient reasons for treating similar situations differently.”),
and we see no reason why unions should not be held to the
same standard.
To prove Local 881’s arbitrary conduct, Rupcich relies on
the case of former Local 881 member and Jewel employee
Belinda Mack. Mack was terminated in May 2008 for violat‐
ing the same misappropriation policy as Rupcich, but the
union took her grievance to an arbitrator. Similar to Rupcich,
Jewel suspended Mack after it determined that she had not
paid for a flat of flowers while scanning her own purchases
at a self‐checkout counter. Like Rupcich, Local 881 filed a
grievance after Mack was suspended. Mack asserted that her

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No. 14‐3377 17
failure to pay for the flat of flowers was an inadvertent mis‐
take—the same defense asserted by Rupcich. Nevertheless,
just as it did in Rupcich’s case, Jewel terminated Mack for
violating the misappropriation policy.
In many ways, however, Rupcich’s case was stronger
than Mack’s. The first key difference between Mack and
Rupcich’s cases is credibility. In Mack’s case, Jewel inter‐
viewed or took written statements from several employees
with personal knowledge of the events surrounding Mack’s
alleged misappropriation of the flat of flowers. Those wit‐
ness interviews and statements raised questions about
Mack’s credibility, as well as her mistake defense. As for
Rupcich, no witnesses were interviewed in her case, includ‐
ing the loss prevention associate who reported the incident.
The only statement provided by someone other than Rup‐
cich was loss prevention associate Young’s contemporane‐
ous written account. That report was the one that initiated
the investigation and was completely consistent with Rup‐
cich’s account of events that she provided to Jewel.
Another key difference was that Mack did not have addi‐
tional corroborating evidence to bolster her mistake defense.
Rupcich did. Her evidence included a doctor’s note indicat‐
ing that Rupcich took her grandson to the doctor on the day
she purportedly misappropriated the bag of birdseed. It also
included a signed letter from the Thornton Police Depart‐
ment indicating that she advised the department she would
be unable to perform her crossing guard duties that day be‐
cause “her grandson had a respiratory emergency.” Rupcich
has offered evidence that suggests this documentation was
provided to Local 881 prior to its decision on Rupcich’s ap‐
peal. A reasonable juror could draw the inference from these

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18 No. 14‐3377
differences that Local 881’s decision to not pursue Rupcich’s
grievance to the extent it did with Mack’s was arbitrary.
Perhaps the biggest difference between Rupcich and
Mack’s cases though is that Local 881 followed the CBA‐
mandated grievance procedure in Mack’s case and pursued
her case to arbitration. With Rupcich, Local 881 abandoned
her case. Mack lost her case in arbitration, but she lost only
after the arbitrator determined under a clear‐and‐convincing
standard that Mack had the intent to take the flat of flowers
without paying for them. In other words, the arbitrator de‐
termined she committed theft.
Local 881 did not address this argument in its brief, but
in the court below, the justification it offered for why it did
not pursue Rupcich’s grievance was that Local 881’s griev‐
ance coordinator, Bill O’Keefe, believed an arbitrator would
not find Rupcich’s claim of inadvertence credible. In his first
affidavit though, he testified that he did not pursue it solely
because Rupcich “admitted to having been stopped past the
point of purchase with an unpaid bag of birdseed.” In es‐
sence, her intent was irrelevant.
Local 881’s justification is beyond the pale. One need on‐
ly look at the arbitrator’s decision with respect to Mack to
see that intent matters. In fact, the arbitrator relied heavily
on statements from other Jewel employees that either con‐
tradicted Mack’s version of events or discredited some of her
statements to Jewel investigative personnel. The arbitrator
did not assume that Mack had committed “theft” by admit‐
ting that she mistakenly moved merchandise past the point
of sale. Instead, he sought actual evidence of intent. A rea‐
sonable juror could conclude that Local 881’s belief that in‐

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No. 14‐3377 19
tent did not matter in Rupcich’s case, even though it did in
Mack’s, is arbitrary.
Seemingly recognizing the absurd nature of its claim that
intent never matters in enforcing Jewel’s misappropriation
policy, O’Keefe’s supplemental affidavit—filed in Local
881’s responsive briefing—reverses course and states that he
thought Rupcich’s claim of inadvertence was not credible.
He apparently came this conclusion because (1) she finished
her shift instead of leaving work early to help her sick
grandson and (2) she changed her clothes before taking her
grandson to the doctor. Both facts, however, do not under‐
mine Rupcich’s account or her mistake defense. Both facts
do not suggest Rupcich was not in a rush to get home to her
grandson when her shift ended, which was less forty‐five
minutes from when she received the call from her husband.
And both facts do not call into question whether she took
her grandson to a doctor’s appointment for a respiratory is‐
sue, soon after her shift ended. An obvious inference can be
drawn that O’Keefe’s statements in the supplemental affida‐
vit are post‐hoc rationalizations that are not only arbitrary
but irrational and beyond unreasonable. The fact remains
that no actual evidence that Rupcich intended to steal the
bag of birdseed was present in her case, and the Union knew
or should have known that after reviewing her case. A rea‐
sonable jury could find that Local 881’sposition “could even‐
tually be deemed not even colorable[.]” McKelvin, 124 F.3d at
868 (internal quotation marks omitted and alteration in orig‐
inal).
Finally, turning to causation, a reasonable juror could
find on the record before us that had Local 881 followed its
CBA‐mandated grievance procedure and proceeded to arbi‐

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20 No. 14‐3377
tration, Rupcich would have probably prevailed in getting
her job back. Section 8.12 of the CBA states that Jewel could
only terminate Rupcich for “just cause,” which is defined to
include “dishonesty or other misconduct” or “serious
… infraction of reasonable rules promulgated by manage‐
ment relating to the operation of the store.” The investiga‐
tive file provided by Jewel to Local 881 indicates Rupcich’s
offense was “Misappropriation” and more specifically “Dis‐
honesty/Criminal Acts,” and her “Associate Corrective Ac‐
tion Review” states she was terminated for “Misappropria‐
tion of Company Property.” So, Jewel’s “just cause” for Rup‐
cich’s termination must be that she violated “reasonable
rules” set forth by the management related to store opera‐
tion or that she committed theft within the meaning of the
misappropriation policy.
We can easily dispense with the proposition that Rupcich
was terminated pursuant to a reasonable rule related to store
operations. There is more than enough evidence in the rec‐
ord for a jury to conclude that Jewel’s misappropriation pol‐
icy was anything but reasonable. Jewel and Local 881 insist
that Jewel has a non‐intent‐based misappropriation policy—
that is, an individual can violate the policy without intend‐
ing to take a product without paying for it. The policy itself,
however, does not provide the employee with notice of this
non‐intent‐based definition of misappropriation. Rather, it
states the following:
Misappropriation of company inventory or proper‐
ty, including theft, consumption, or unauthorized
use is prohibited. Misappropriation of merchandise
will result in termination of employment.

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No. 14‐3377 21
(emphasis added). Because the word “misappropriation” is
undefined, a Jewel employee attempting to divine what
conduct would violate this policy would be left with the ex‐
amples of “misappropriation” and its dictionary definition.
Jewel has conceded—as it must—that Rupcich’s conduct
would not qualify as unauthorized use or consumption. The
only other example then that Rupcich would have to deter‐
mine whether her conduct would violate the policy is theft,
which any reasonable person would assume includes an el‐
ement of intent. And the dictionary definition would lead
Rupcich or any other employee to the same conclusion, as it
defines “misappropriate” to mean “appropriate dishonestly
for one’s own use.” Webster’s Third New Int’l Dictionary.
But there is even more that demonstrates the unreasona‐
bleness of Jewel’s misappropriation policy. Novosel, the
Jewel associate relations representative who made the deci‐
sion to terminate Rupcich, testified that not only does Jewel
not define misappropriation in its policy, it has another, un‐
disclosed definition for what it deems to be “theft.” This
Orwellian definition of “theft” is the “taking [of] merchan‐
dise past the last point of sale without management authori‐
zation.” The definition of theft, according to Jewel, does not
include intent. Fine, except that the evidence suggests that
Jewel does not even believe its own doublespeak.
Rupcich has directed us to a series of documents that ap‐
pear to be filled out by Jewel employees who have violated
its misappropriation policy. It is a form document entitled
“Confidential Employee Statement.” In the document, the
employee describes the conduct that would appear violative
of Jewel’s misappropriation policy. At the bottom of the
document, it states “[t]his, I realize, was wrong and done

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22 No. 14‐3377
with the intent of permanently depriving the company of the
property.” (emphasis added). If intent does not matter to
Jewel, then why not have the employee sign a document that
states: “I realize I purposefully or mistakenly took Jewel
property past the point of sale without paying for it”? Intent
then either matters to Jewel or it does not. Either way, a rea‐
sonable juror could determine that Jewel’s rule is beyond
unreasonable and therefore cannot form the basis for a “just
cause” dismissal of Rupcich.
As for the second possible basis for Rupcich’s purported
“just cause” dismissal—“Dishonesty/Criminal Acts”—we
have already established above that Rupcich had what a rea‐
sonable juror may consider an airtight mistake defense given
her credibility, the evidence supporting her mistake defense,
and Jewel’s complete lack of evidence. That same juror then
could also find that an arbitrator would likely determine that
Jewel lacked “just cause” to terminate her for “Dishones‐
ty/Criminal Acts” because Rupcich did not have the intent to
steal the bag of birdseed.
Taken together, we believe the record demonstrates that
a reasonable juror could find that Local 881 breached its du‐
ty of fair representation to Rupcich by acting arbitrarily.
2. Bad Faith
Rupcich also argues that Local 881 breached its duty of
fair representation to her through its bad faith conduct. To
determine “[w]hether or not a union’s actions are … in bad
faith calls for a subjective inquiry and requires proof that the
union acted (or failed to act) due to an improper motive.”
Neal, 349 F.3d at 369; see also Bennett, 958 F.2d at 1438–39 (af‐
firming a district court’s finding of bad faith where the evi‐

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No. 14‐3377 23
dence demonstrated that in addition to giving away plain‐
tiff’s CBA rights, the union president worked with the em‐
ployer’s plant manager to conceal the act that harmed the
plaintiff). Rupcich, however, has not offered any evidence of
an improper motive, such as attempts by the union and
management to conceal an agreement to not pursue Rup‐
cich’s arbitration. Instead, she repackages the same evidence
that demonstrates why Local 881’s actions may be consid‐
ered arbitrary, including Jewel’s lax investigation of her
grievance. This is insufficient to withstand summary judg‐
ment on the grounds that Local 881 acted in bad faith for
purposes of a breach of the duty of fair representation.
B. Breach‐of‐Contract Claim
Rupcich also argues on appeal that the district court
erred in denying her motion for summary judgment on her
claim that Jewel breached the CBA and granting Jewel’s mo‐
tion for the same relief. The district court granted summary
judgment on behalf of Jewel without reaching the merits of
Rupcich’s claim against it because a hybrid 301 claim like
Rupcich’s requires her to demonstrate that “the union
breached its duty of fair representation to maintain an ac‐
tionable § 301 claim against the employer.” Filippo, 141 F.3d
at 748. There was no error in the district court’s approach, as
it did not need to address a breach of the CBA claim in a hy‐
brid 301 action like Rupcich’s if it determined that the plain‐
tiff does not have an actionable claim against the union for a
breach of the duty of fair representation. Rather, the district
court’s error here was in granting Local 881’s motion for
summary judgment.
We agree with Rupcich that the district court erred in
granting summary judgment to Jewel on her breach of the

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24 No. 14‐3377
CBA claim in light of the fact that her claim against Local 881
may go forward. We agree with Jewel, however, that “the
issue of whether there was just cause to terminate Rupcich’s
employment is not appropriate for summary judgment.”
(Jewel Br. at 8.) Therefore, the district court did not err in
denying Rupcich’s motion for summary judgment.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district
court’s grant of summary judgment to Local 881 on Count 1
of Rupcich’s Amended Complaint (Breach of Local 881’s Du‐
ty of Fair Representation) and to Jewel on Count 2 (Breach of
Contract and Wrongful Termination). We AFFIRM the dis‐
trict court’s denial of Rupcich’s motions for summary judg‐
ment; and, REMAND this case for further proceedings.

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