United States v. Anthony Smith

1The Honorable James M. Moody, United States District Judge for the Western
District of Arkansas.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1171
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Brook Rogers, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Southwestern Bell Telephone *
Company; Communications Workers * [UNPUBLISHED]
of America, AFL-CIO, *
*
Appellees. *
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Submitted: December 15, 2010
Filed: January 28, 2011
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Before RILEY, Chief Judge, BEAM, and BENTON, Circuit Judges.
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PER CURIAM.
Brook Rogers appeals the district court's1 grant of summary judgment in favor
of Southwestern Bell Telephone Company and Communications Workers of America,
AFL-CIO (CWA) (collectively "Defendants") in this hybrid suit under section 301 of
the Labor Management Relations Act. We affirm.

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I. BACKGROUND
In 1993, Brook Rogers was hired as a Cable Splicing Technician at
Southwestern Bell Telephone Company, where he worked until he was discharged in
2007. During his employment, Rogers was represented by the CWA–a union that has
a collective bargaining agreement with Southwestern Bell.
The regulations that govern the behavior and performance of Southwestern Bell
employees are found in the Code of Business Conduct (COBC). Rogers, like other
employees, periodically received an updated copy of the COBC and signed a form
acknowledging that he had reviewed the document. Unchallenged evidence in the
record shows that, at least as far back as February 2005, Rogers was repeatedly
disciplined for violating the COBC. In September 2006, Rogers was put on Decision
Making Leave–the final step in the disciplinary process. Rogers continued to receive
reprimands. On March 6, 2007, he received a final warning, which stated that if he
committed any violation during the next year he would be fired.
On December 5, 2007, as Rogers was leaving work, he took a terminal
block–which he had uninstalled from a customer's house several weeks earlier–out of
his work vehicle, placed it in a bag, and walked toward his car. Rogers' manager, Kate
Brogan, saw him leaving with the bag and approached to ask what he was taking
home. Rogers told Brogan that it was a terminal block and that it was "trash." Brogan
told Rogers they would have to meet the next day regarding the incident.
Over the next two days, Southwestern Bell held a series of meetings that
culminated in a finding that, by taking the terminal block, Rogers violated a COBC
provision that prohibits employees from taking company property regardless of the
property's value. On December 7, 2007, Southwestern Bell terminated Rogers. The
collective bargaining agreement between Southwestern Bell and the CWA specifically

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disqualifies an employee from receiving any severance if the employee is terminated
for "misconduct." Southwestern Bell denied Rogers' request for severance pay, finding
that his violation of the COBC constituted misconduct.
Rogers filed a grievance with the local branch of the CWA, asking the union
to challenge his termination and to appeal Southwestern Bell's denial of his request
for severance pay. The CWA investigated Rogers' claims, conducting interviews and
requesting documents from Southwestern Bell. On January 24, 2008, the CWA
representatives met with Southwestern Bell officials about Rogers' grievance, which
Southwestern Bell denied. Rogers requested additional action from the St. Louis
Branch of the CWA, which appointed Staff Representative Bill Wildoner to further
evaluate Rogers' claims. Wildoner consolidated Rogers' termination and severance
claims and, after investigation, concluded that neither was likely to succeed. Despite
drawing this conclusion, Wildoner continued working on Rogers' behalf, negotiating
a settlement agreement with Southwestern Bell. However, Rogers rejected the
settlement. On April 1, 2008, Wildoner notified Rogers that he was not
recommending his claim for arbitration. Rogers appealed to the CWA's internal
arbitration review panel and, after that appeal was denied, appealed again to the CWA
Executive Board. On November 10, 2008, the Executive Board issued a final denial.
On January 12, 2009, Rogers filed a complaint against Southwestern Bell and
the CWA in Arkansas state court. The complaint alleged that Southwestern Bell
unlawfully terminated Rogers and wrongfully denied him severance pay and that the
CWA breached its duty of fair representation. Defendants removed to federal district
court and, subsequently, filed a motion for summary judgment. On January 15, 2010,
the district court granted Defendants' motion for summary judgment. Rogers appeals.

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II. DISCUSSION
We review the district court's grant of summary judgment de novo. In re
Baycol Prods. Litig., 596 F.3d 884, 888 (8th Cir. 2010). Rogers' claim is a hybrid
claim against his former employer and union pursuant to the Labor Management
Relations Act § 301. Because this is a hybrid claim, to succeed against either
defendant, Rogers must establish that: (1) the CWA breached its duty of fair
representation, and (2) Southwestern Bell violated the collective-bargaining agreement
by discharging him. DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164-65
(1983). Rogers has not raised a question of material fact on the first prong and, thus,
both Defendants are entitled to summary judgment.
Establishing a breach of the duty of fair representation requires Rogers to show
that the CWA made a decision related to his grievance that was "arbitrary,
discriminatory, or in bad faith." Marquez v. Screen Actors Guild, Inc., 525 U.S. 33,
44 (1999). Rogers argues that the CWA acted arbitrarily and in bad faith, but he has
not offered sufficient evidence to raise a question of material fact under either
standard.
A union acts arbitrarily only when it is makes decisions that are "so far outside
a wide range of reasonableness as to be irrational." Air Line Pilots Ass'n Int'l v.
O'Neill, 499 U.S. 65, 67 (1991) (internal quotation and citations omitted). Rogers fills
considerable space arguing that he survives summary judgment on this issue of the
CWA's irrationality because he has produced evidence that he could have or should
have prevailed at arbitration. But, even assuming he could prove this, it is not enough
to survive summary judgment. Raising a question of material fact about the
correctness of a union's decision does not automatically raise a question of material
fact about the union's rationality. A union has considerable discretion in determining
whether to compel arbitration on an employee's grievance. Vaca v. Sipes, 386 U.S.
171, 191-92 (1967). Here, the evidence does not support a reasonable jury finding

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that the CWA was so clearly wrong about the merits of the claim that it was
unreasonable. A union acts reasonably when it takes into account the weakness of its
case and an employee's past record of infractions. See Matthews v. Milwaukee Area
Local Postal Workers Union, 495 F.3d 438, 442 (7th Cir. 2007). Here, the CWA's
experienced Staff Representative concluded, after a thorough investigation, that
Rogers had violated the COBC, and that, given this violation and Rogers' extensive
disciplinary record, arbitration was inappropriate. This was not unreasonable.
Rogers also argues that the CWA acted arbitrarily because the procedure it
used to review his grievances was inadequate. "[A]rbitrary decision-making as to the
merits of an employee's grievance may, in some circumstances, be shown where the
union ignores the employee's complaint or processes the employee's grievance in a
perfunctory manner." Martin v. Am. Airlines, Inc., 390 F.3d 601, 606 (8th Cir. 2004).
A union acts in a perfunctory manner when it acts "without concern or solicitude" or
gives a member's grievance "only cursory attention." Brown v. Trans World Airlines,
Inc., 746 F.2d 1354, 1357 (8th Cir. 1984). However, an imperfectly processed
grievance does not violate the duty. Landry v. The Cooper/T. Smith Stevedoring Co.,
880 F.2d 846, 852 (5th Cir. 1989). Even negligence in a grievance-resolution process
is not enough to breach the duty of fair representation. Smith v. United Parcel Serv.,
Inc., 96 F.3d 1066, 1068 (8th Cir. 1996). Rogers has not presented evidence that
would allow a reasonable jury to conclude that the CWA did not meet this low
standard. Despite his attempt to reframe it, Rogers' argument that the CWA failed to
give his claims sufficient attention essentially boils down to another version of his
argument, which is that, because the CWA did not reach Rogers' preferred conclusion,
it must not have adequately considered his claims. Undisputed evidence shows that
the CWA officials understood Rogers' argument, but ultimately did not accept it.
Rogers has not presented any evidence of a perfunctory grievance-evaluation process
and, thus, cannot survive summary judgment.

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Rogers further argues that the CWA violated the duty of fair representation by
consolidating his claims instead of independently evaluating and pursuing his
settlement grievance. This argument fails for the same reason as the above
argument–Rogers provided no evidence that the union acted irrationally by deciding
the two claims turned on the same issues and, thus, were likely to reach the same
outcome. Rogers argues that there is an additional reason to believe the consolidation
decision was irrational and in bad faith: he claims the CWA did not timely notify him
of the consolidation of his claims. However, even taking this allegation as true, it is
not enough to survive summary judgment. "[W]hile a union's failure to notify a
grievant may be negligent and in poor judgment, such an omission, without anything
more, does not violate a union's duty of fair representation." Demars v. Gen.
Dynamics Corp., 779 F.2d 95, 98 (1st Cir.1985). Here, Rogers offered nothing more
and, thus, has not presented sufficient evidence to survive summary judgment.
Rogers' claim that the CWA acted in bad faith is also unconvincing. Bad faith
action requires "fraud, deceitful action, or dishonest conduct." Baxter v. United
Paperworkers Int'l Union, 140 F.3d 745, 747 (8th Cir. 1998). Rogers offers no
evidence of dishonesty, personal hostility, or treatment that would suggest any union
officer acted with anything less than good faith. See Vaca, 386 U.S. at 194. He
cannot survive summary judgment based on bare allegations of bad faith.
Rogers has not raised a question of material fact about whether the CWA
breached the duty of fair representation. Therefore, because this is a hybrid suit, both
Defendants are entitled to summary judgment.
III. CONCLUSION
For the foregoing reasons, we affirm.
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