Stanley v. American Federation of State & Municipal Employees Local No. 553

BARBERA, J. This appeal has its genesis in a union’s refusal to arbitrate a member’s grievance with his employer. In 2000, Ramon Stanley, appellant, was terminated from his employment with the City of Cumberland after a urine sample he submitted to the Allegany County Health Department (the “Health Department”) tested positive for the presence of marijuana. That result was appellant’s second positive test result in approximately one year. Appellant, a member of the American Federation of State & Municipal Employees Local No. 553 (the “Union”), sought the Union’s assistance in pursuing a grievance on his behalf against the City of Cumberland.

The Union’s members initially voted to arbitrate the decision to terminate appellant’s employment, but later voted not to proceed on appellant’s behalf. The Union notified appellant that he could proceed to arbitration on his own and without Union representation. When appellant attempted to enter into arbitration with the City of Cumberland, however, it refused to arbitrate. Appellant thereafter filed suit in the Circuit Court for Allegany County against the Mayor and the City Council of Cumberland (the “City”) and the Union, all appellees herein.

Appellant alleged in the complaint that the Union breached its duty of fair representation, and that he was wrongfully terminated from his employment with the City. Appellant also asked the court to issue an order compelling the City to arbitrate his grievance. After the court entered summary judgment in favor of appellees, appellant noted this timely appeal. For the reasons discussed below, we hold that there are triable issues concerning appellant’s claim for breach of the Union’s duty of fair representation.

We therefore reverse the court’s grant of summary judgment in favor of the Union. We also reverse the court’s grant of summary judgment in favor of the City on ⁶ the count alleging wrongful termination. We affirm the court’s summary judgment ruling in favor of the City on the counts requesting an order compelling arbitration and an order that the grievance be decided in appellant’s favor. Background Appellant began working for the City in October 1974, and had been working as an “Equipment Operator 2” for approximately ten years before his employment was terminated in 2000.

Shortly after he began his employment with the City, appellant became a member of the Union. In 1979, the City designated the Union “the exclusive bargaining agent for certain employees in the general trades and labor and clerical/technical classifications of the City of Cumberland!)]” From July 1, 1998 through June 30, 2001, appellees were parties to a Collective Bargaining Agreement (the “Agreement”). Article IV, §§ 1-5 of the Agreement, about which we shall say more later in this opinion, outlines the procedures used in handling a “grievance or dispute which may arise between the parties!)]” A condition of appellant’s employment was that he must hold a commercial driver’s license. The Federal Government requires individuals holding a commercial driver’s license to submit to a random drug and alcohol screening.

See 49 C.F.R. § 382 (2004). Accordingly, in September 1999, appellant submitted to a random drug test. The test results reported positive for marijuana. Appellant received from the City a letter dated October 8, 1999.

In it, the City informed appellant that he was in “violation of Rule # 4, section A, of the Rules [for Progressive Disciplinary Actions for Operating and Utility Employees (the ‘Rules’)],” which the Union and the City had negotiated. Rule # 4 is titled “3 DAYS OFF/5 DAYS OFF/DISCHARGE, ” and provides, in pertinent part, that “[t]he use or possession of intoxicants or controlled dangerous substances by employees during their tour of duty or while on [C]ity property shall be cause for disciplinary layoff or dismissal.... ” The City in ⁷ formed appellant that he was suspended for three days and that, “[a]s a condition of continued employment with the City[,]” he would have to complete a drug counseling program and then submit to random monthly drug and alcohol screenings, as part of a one-year probation. 1 The City stated that, should appellant test positive or refuse to undergo the drug screening during his probationary period, he would be immediately terminated from employment. Appellant completed the drug counseling program, returned to work, and submitted to the required monthly drug screenings with the Health Department. In late August 2000, he submitted a urine sample to the Health Department.

The Health Department forwarded the sample to Friends Medical Laboratory (“Friends”) in Baltimore, which reported that the sample tested positive for the presence of marijuana. The City notified appellant of the positive test result the following month, and informed him that, effective immediately, he was “suspended without pay pending the outcome of a pre-termination hearing!.]” On September 7, 2000, a pre-termination hearing was held. 2 James Bestpitch, Union Representative, and John Keiper, Union President, attended the hearing with appellant. During the hearing, appellant disputed the test results. The hearing panel granted Mr. Bestpitch’s request, on appellant’s behalf, for additional time to submit information concerning the testing.

Mr. Bestpitch then obtained from the Allegany County Director of Human Resources and Personnel a facsimile containing information about an approved drug screening method ⁸ ology, and apparently stating that, if a drug screening results in a positive test, a confirmatory test using a different method must be conducted. For some reason not reflected in the record, Mr. Bestpitch did not forward this information to the pre-termination hearing panel. Nor did he request additional information regarding testing methods from the Union’s national office. By letter dated September 11, 2000, the City, noting that it had received no further information from appellant concerning the drug test, informed him that his employment would be terminated effective September 12, 2000.

Shortly thereafter, Mr. Bestpitch and Mr. Keiper prepared a grievance by appealing the City’s decision to terminate appellant. .The grievance asserted that appellant “was unjustly terminated” in violation of Article IV, § 7 of the Agreement. 3 After a hearing on the grievance, the City informed Mr. Bestpitch that appellant’s grievance was denied and his termination was upheld. The City pointed out that, although the Union had argued at the grievance hearing that the Health Department had not complied with federal drug testing procedures in conducting the September 2000 test of appellant’s urine, the Union had offered no evidence, other than appellant’s bare testimony, to support that claim. Several weeks later, Mr. Bestpitch notified the City that the Union would proceed to arbitration on appellant’s grievance, in accordance with the Agreement. On December 5, 2000, the Union held a regular meeting, at which appellant was present.

During the meeting, the members were informed that the Union’s Executive Board had recommended that the Union not pursue arbitration on appellant’s behalf. Mr. Bestpitch told the members that appellant could challenge the City’s decision based upon a “technicality” in the testing procedure that resulted in appellant’s second positive drug test, but he was not sure that the “technicality or loophole [was] strong ⁹ enough to win arbitration.” Mr. Bestpitch also explained that he and Mr. Keiper “learned some confidential information,” that is, that appellant “admitted that he was wrong.” Mr. Bestpitch advised the members that arbitration costs would include “approximately $2500 for the brief, and $1500 or more for the rest of the case.” The members discussed appellant’s grievance, then voted to overturn the Executive Board’s decision and to proceed to arbitration on appellant’s behalf. Despite that vote, Mr. Best-pitch did not forward a “Request for Arbitration Panel” form to the City until December 18, 2000. Several Union members who were not present at the December 5, 2000 meeting approached Mr. Bestpitch sometime later that month to discuss the possibility of reconsidering the vote to arbitrate appellant’s grievance.

Mr. Bestpitch advised them how to reconsider the vote at the next Union meeting. On January 2, 2001, the Union met for its regular monthly meeting, during which the members discussed the possibility of reconsidering the vote to proceed to arbitration. Mr. Bestpitch informed them that they could do so if a two-thirds majority voted to reconsider. A vote was taken, and a two-thirds majority was not reached.

Following this meeting, some Union members again approached Mr. Bestpitch and advised him that the motion to reconsider actually needed only a bare majority vote rather than a two-thirds vote to pass. As Union president, Mr. Keiper called a special meeting, which was held on January 11, 2001. At that time, Mr. Bestpitch informed the members that he had incorrectly stated during the previous meeting that a motion for reconsideration required a two-thirds vote to pass, when in fact it required only a majority vote, which it had received. Mr. Bestpitch advised the members that, because the motion had passed during the January meeting, the members could now discuss whether to proceed to arbitration.

He then told them that appellant could “pursue the issue in court if the [Ujnion does not fight for him.” The Union members voted to uphold ¹⁰ the Executive Board’s initial decision that the Union not pursue arbitration of appellant’s grievance. Approximately one week later, Mr. Bestpitch notified appellant in writing that the Union would extend to him the right to proceed to arbitration with the City on his own behalf, absent Union representation, if he would “release [the Union] from any liability associated with th[e] case.” Appellant accepted and informed the City of his desire to proceed with arbitration. Additionally, Mr. Keiper notified the City by letter that, although the Union “voted not to spend any of its [ ] financial resources on the case[,]” it did vote to “g[i]ve [appellant] all rights and privileges to pursue his appeal process through the arbitration process as outlined in the [ ] Agreement ... at his own expense.” The City declined to proceed to arbitration “because the Union had withdrawn the grievance.” The Lawsuit On July 25, 2001, appellant filed a complaint in the Circuit Court for Allegany County against the City. In the complaint, appellant asked the court to order the City to enter into binding arbitration with him, pursuant to the Agreement.

The City filed a motion for summary judgment, arguing that the Agreement did not authorize an employee to arbitrate his grievance personally. The court denied the motion. After amending his complaint once, appellant filed a second amended complaint naming both the City and the Union as defendants. The first count of the second amended complaint sought a court order compelling the City to enter into arbitration with appellant.

The second count alleged wrongful termination, for which appellant sought $644,000.00 in damages. The third count sought a court order that appellant’s grievance be decided in his favor because the City refused to enter into arbitration with him. 4 The fourth count alleged that the Union breached its duty of fair representation. ¹¹ About six weeks before trial was set to begin, appellees filed individual motions for summary judgment, which appellant opposed. The motions came on for a hearing, during which the City argued that appellant had no right to compel the City to arbitrate his grievance absent Union representation. The City asserted that Article IV, § 6 of the Agreement, upon which appellant relied, does not confer upon an employee the right to compel arbitration, but merely maintains an employee’s right to bring complaints directly to his or her supervisor. 5 In support of its motion for summary judgment, the Union argued that appellant’s alleged facts did not state a claim for breach of the duty of fair representation.

The Union also echoed the City’s position that appellant did not have an independent light to pursue arbitration. The Union acknowledged that Mr. Bestpitch had given appellant “bad advice” when informing him that the Union would allow him to arbitrate on his own. The Union argued that, per the October 8, 1999 letter from the City to appellant, he entered into a “last chance agreement” with the City after he failed his first drug test. Appellant opposed summary judgment in favor of the Union on the ground that material facts were in dispute concerning whether the Union had breached its duty of fair representation.

Appellant opposed summary judgment in favor of the City, not because there were material facts in dispute, but because he was entitled as a matter of law to compel arbitration. On July 14, 2004, the court issued an opinion and order granting appellees’ motions for summary judgment on all ¹² counts. First, the court ruled that there was no factual basis for appellant’s claim that the Union breached its duty of fair representation, because the facts, as alleged, did not make out a claim that the Union acted arbitrarily, capriciously, or in bad faith. In making that determination, the court considered the following: (1) the Union weighed the merits of appellant’s claim that the second drug test was faulty; (2) the Union members were informed of the facts surrounding appellant’s termination from employment and the cost of litigation; and (3) appellant had been given an opportunity to speak to the Union members.

The court refused to review the internal procedures used at the Union’s meetings, which appellant had argued were in violation of Robert’s Rules of Order, indicating that the Union acted in a perfunctory manner. Second, the court ruled that appellant did not have the personal right to compel arbitration with the City, and that the City was not required “to bargain with anyone other than [the Union] on the issue of [appellant’s termination[,]” because the Union “is designated as the Exclusive Collective Bargaining Agent for [City] employees[.]” The court agreed with the City that Article IV, § 6 of the Agreement merely confirms the right of an individual employee “to bring a complaint to a supervisor’s attention without having to follow the formal grievance process.” Third, the court rejected appellant’s claim that Article IV, § 4 of the Agreement required a ruling that the grievance be deemed decided in appellant’s favor because the City did not appeal or answer appellant’s grievance. The court reasoned that this provision is “immaterial,” because the City was not obligated to enter into arbitration with appellant. On July 16, 2004, a separate document reflecting the court’s judgment was entered on the docket.

This timely appeal followed. 6 We shall add facts as they become pertinent to our discussion. ¹³ STANDARD OF REVIEW Under .Maryland Rule 2 — 501(f), summary judgment may be granted “if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” We review a circuit court’s order granting summary judgment de novo. Coraneos v. Montgomery County, 161 Md.App. 411, 422 , 869 A.2d 410 (2005). We determine whether there is any dispute of material fact, and, if there is none, we then determine whether the court was legally correct in its ruling. Rockwood Cas.

Ins. Co. v. Uninsured Employers’ Fund, 385 Md. 99, 106 , 867 A.2d 1026 (2005); Mutual Fire Ins. Co. of Calvert County v. Ackerman, 162 Md.App. 1, 5 , 872 A.2d 110 (2005). As we undertake this review, “ ‘we construe the facts properly before the court, and any reasonable inferences that may be drawn from them, in the light most favorable to the non-moving party.’ ” Rockwood, 385 Md. at 106 , 867 A.2d 1026 (citation omitted). “ ‘We ordinarily will uphold the grant of summary judgment only on a ground relied on by the trial court.’ ” Pac.

Employers Ins. Co. v. Eig, 160 Md.App. 416, 428 , 864 A.2d 240 (2004) (citation omitted). DISCUSSION I. The Duty of Fair Representation Appellant argues that the Union breached its duty of fair representation “in the processing and handling of matters relating to his discharge.” He asserts that the circuit court did not consider the facts in the light most favorable to him when it ruled on appellees’ motion for summary judgment. He argues that the trial court erroneously “believe[d] that the issue of whether a union breaches a duty of fair representation is determined on the basis of whether there was a discussion and vote by the membership on the grievance.” The court erred, according to appellant, in overlooking facts alleging that the Union representatives, Mr. Bestpitch and Mr. Keiper, did ¹⁴ not act “in good faith, with diligence, and in a non-perfunetory manner.” Appellant points to his allegations that the Union failed to know or make inquiry into the City’s Rules, which provided for only a five (5) day suspension on a second offense; failed to investigate or even inquire into the validity of the drug test results; conducted its meetings in a “perfunctory manner” by failing to adhere to Roberts Rules of Order; and misadvised the membership that appellant could personally arbitrate his grievance with the City, thereby manipulating the membership’s vote not to arbitrate on his behalf.

These allegations, appellant maintains, establish genuine issues of material fact, rendering summary judgment inappropriate. The Union responds that it breached its duty of fair representation only if its representation of appellant was “arbitrary, discriminatory, or in bad faith,” and that appellant’s allegations fail to make out any such claim. The Union argues that appellant did not object to his 1999 suspension or the other conditions imposed on him for his continued employment and did not ask the Union to file a grievance on his behalf in 1999, and consequently, he should not be given the opportunity now to complain about the Union’s lack of action in 1999; appellant’s challenges relate merely to the Union’s tactical strategy in handling his grievance; there is no factual support for appellant’s argument that Mr. Bestpitch attempted to manipulate the votes of its members; and appellant’s claim that it did not comply with Robert’s Rules of Order is not a ground for finding a breach of the duty of fair representation. It is well-established that a State court may entertain a suit by a union member against a union’s officers and representatives “based on the member’s claim that the union had, without good cause or reason, refused to take to arbitration the member’s grievance against his employer.” Byrne v. Mass Transit Admin., 58 Md.App. 501, 508 , 473 A.2d 956 (citing Vaca v. Sipes, 386 U.S. 171 , 87 S.Ct. 903 , 17 L.Ed.2d 842 (1967)), cert, denied, 300 Md. 794 , 481 A.2d 239 (1984), cert, denied, 471 U.S. 1016 , 105 S.Ct. 2021 , 85 L.Ed.2d 303 ¹⁵ (1985).

The action arises under state law as a breach of contract claim. Id. The duty of fair representation has three requirements. It requires a union “[1] to serve the interests of all members without hostility or discrimination toward any, [2] to exercise its discretion with complete good faith and honesty, and [3] to avoid arbitrary conduct.” Vaca, 386 U.S. at 177 , 87 S.Ct. 903 ; accord Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44 , 119 S.Ct. 292 , 142 L.Ed.2d 242 (1998). “ ‘Each of these requirements represents a distinct and separate obligation, the breach of which may constitute the basis for civil action.’ ” Neal v. Potomac Edison Co., 48 Md.App. 353, 358 , 427 A.2d 1033 (citation omitted), cert, denied, 290 Md. 719 (1981). “ ‘[A] union is accorded considerable discretion in the handling and settling of grievances.’ ” Neal, 48 Md.App. at 358 , 427 A.2d 1033 (citation omitted).

A union does not necessarily breach its duty when it declines to take a member’s grievance to arbitration. See Vaca, 386 U.S. at 191-92 , 87 S.Ct. 903 ; accord Meola v. Bethlehem Steel Co., 246 Md. 226, 235 , 228 A.2d 254 (1967). Indeed, an “ ‘employee has no absolute right to insist that his grievance be pressed through any particular stage of the contractual grievance procedure. A union may screen grievances and press only those that it concludes will justify the expense and time involved in terms of benefitting the membership at large.’ ” Neal, 48 Md.App. at 358-59 , 427 A.2d 1033 (citation omitted)(emphasis deleted). “[M]ere negligence ... would not state a claim for breach of the duty of fair representation^]” United Steelworkers of Am., AFL-CIO-CLC v. Rawson, 495 U.S. 362, 372-73 , 110 S.Ct. 1904 , 109 L.Ed.2d 362 (1990). “[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.” Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 , 111 S.Ct. 1127 , 113 L.Ed.2d 51 (1991).

A union breaches the duty, “for example, ¹⁶ when it ‘arbitrarily ignore[s] a meritorious grievance or processes] it in [a] perfunctory fashion.’ ” Int’l Bhd. of Elec. Workers v. Foust, 442 U.S. 42, 47 , 99 S.Ct. 2121 , 60 L.Ed.2d 698 (1979) (quoting Vaca, 386 U.S. at 191 , 87 S.Ct. 903 ). In other words, although “ ‘[a] union may refuse to process a grievance or handle the grievance in a particular manner for a multitude of reasons, ... it may not do so without reason, merely at the whim of someone exercising union authority.’ ” Neal, 48 Md.App. at 359 , 427 A.2d 1033 (citation omitted). Appellant does not make clear whether his claim of a breach of the duty of fair representation is grounded in