Hammond v. International Longshoremen's Association, Local 1408

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ROBERT HAMMOND,

Plaintiff,

v. Case No. 3:23-cv-1450-MMH-LLL

INTERNATIONAL

LONGSHOREMEN’S

ASSOCIATION, LOCAL 1408, et al.,

Defendants.

ORDER

THIS CAUSE is before the Court on Defendants’ Joint Motion to Dismiss

Second Amended Complaint and Supporting Memorandum of Law of

Defendants International Longshoremen’s Association, Local 1408 and United

States Maritime Alliance, LTD (Doc. 25; Motion), filed on May 10, 2024. In the

Motion, Defendants seek dismissal of Plaintiff’s Second Amended Complaint for

Relief and Demand for Jury Trial (Doc. 14; Second Amended Complaint), filed

on March 8, 2024. Plaintiff timely filed a response in opposition to the Motion.

See Plaintiff’s Response in Opposition to Defendants’ Joint Motion to Dismiss

Second Amended Complaint (Doc. 29; Response), filed on May 30,

2024. Accordingly, this matter is ripe for review. For the reasons below, the

Court finds that the Motion is due to be granted and the Second Amended

Complaint is due to be dismissed.

I. Background1

This action involves a collective bargaining agreement (CBA) between the

two Defendants: United States Maritime Alliance, LTD (USMX) and

International Longshoremen’s Association, Local 1408 (Local 1408). See

Second Amended Complaint ¶ 8. Plaintiff Robert Hammond first “became

employed under the CBA” in 2004, which is when he started working for USMX

and “became a dues-paying member of” Local 1408. Id. ¶¶ 13–14, 16–17.

That same year, Hammond “left his position” with USMX at some point after

completing his “first full 8 hours of employment.” See id. ¶¶ 17–18 (internal

quotation marks omitted). “In 2018, [Hammond] returned to employment

under the CBA.” See id. ¶ 19. The CBA includes a Seniority Plan which,

according to Hammond, entitled him “to integrate his 2004 port wide seniority

into the existing seniority list” after “no more than six months of re-

employment.” See id. ¶ 20.

1 In considering the Motion, the Court must accept all factual allegations in the Second

Amended Complaint as true, consider the allegations in the light most favorable to Hammond,

and accept all reasonable inferences that can be drawn from such allegations. Hill v. White,

321 F.3d 1334, 1335 (11th Cir. 2003); Jackson v. Okaloosa Cnty., Fla., 21 F.3d 1531, 1534

(11th Cir. 1994). As such, the facts recited here are drawn from the Second Amended

Complaint, and may well differ from those that ultimately can be proved.

At an unspecified point in time, Hammond “discovered that he was not

provided with seniority for his employment in 2004 nor for his employment from

2018 through the present.” Id. ¶ 21. According to Hammond, if he had been

credited with seniority beginning in 2004, he “would have been hired for a

considerable number of additional hours of work.” See id. ¶ 22. When USMX

did “not afford[ ] [Hammond] his correct seniority,” he filed a grievance with

Local 1408 to “adjust his seniority” and “provide him with credit for his broken

years of service.” Id. ¶¶ 22, 23. But, Local 1408 “refused to appropriately

adjust” his seniority “and instead deferred the decision to its counsel.” Id. ¶ 24.

In the Second Amended Complaint, Hammond asserts that, “[t]o date, no

decision has been rendered regarding [his] grievance.”2 Id. ¶ 24; see also id.

¶ 27 (asserting that Defendants “effectively den[ied] the grievance” because

they “have failed to provide any determination in response to [his] grievance”).

In Count I of his Second Amended Complaint, Hammond asserts a claim

against Local 1408, alleging that it breached its duty of fair representation by

failing to adjust his seniority. See id. ¶¶ 29–35. And in Count II, Hammond

2 On March 4, 2024, Hammond sought leave to file his Second Amended Complaint in

part because “on January 29, 2024,” Local 1408’s “executive board finally addressed [his]

grievance, denying him relief.” See Plaintiff’s Motion for Leave to Amend Complaint (Doc.

12; Motion to Amend) at 2. Confusingly, in his Second Amended Complaint Hammond

continues to allege that “[t]o date, no decision has been rendered regarding [his] grievance.”

Second Amended Complaint ¶ 24. In resolving the Motion, the Court accepts the factual

allegations in the Second Amended Complaint as true—including the allegations that Local

1408 has not issued a decision on Hammond’s grievance. For the reasons discussed below,

however, the result would not change if Hammond had instead alleged that Local 1408 had

“finally addressed [his] grievance, denying him relief.” See Motion to Amend at 2.

contends that USMX’s “failure to recognize [his] seniority” violated the

Seniority Plan, and thus constitutes a breach of the CBA. See id. ¶¶ 36–41.

Defendants seek dismissal of the Second Amended Complaint pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure (Rule(s)), arguing that

Hammond has failed to state a plausible claim for relief in both Counts that he

brings. See generally Motion.

II. Legal Standard

In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the

Court must accept the factual allegations set forth in the complaint as true.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 508, n.1 (2002); see also Lotierzo v. Woman's World Med. Ctr.,

Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable

inferences should be drawn in favor of the plaintiff. See Randall v. Scott, 610

F.3d 701, 705 (11th Cir. 2010). Nonetheless, the plaintiff must still meet some

minimal pleading requirements. Jackson v. BellSouth Telecomm., 372 F.3d

1250, 1262–63 (11th Cir. 2004) (citations omitted). Indeed, while “[s]pecific

facts are not necessary,” the complaint should “‘give the defendant fair notice of

what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus,

551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007)). Further, the plaintiff must allege “enough facts to state

a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A

claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S.

at 556).

A “plaintiff’s obligation to provide the grounds of his entitlement to relief

requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citations

omitted); see also Jackson, 372 F.3d at 1262 (explaining that “conclusory

allegations, unwarranted deductions of facts or legal conclusions masquerading

as facts will not prevent dismissal” (citations and quotations omitted)).

Indeed, “the tenet that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal conclusions,” which simply “are

not entitled to [an] assumption of truth.” Iqbal, 556 U.S. at 678–79. Thus, in

ruling on a motion to dismiss, the Court must determine whether the complaint

contains “sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 570).

III. Summary of Arguments

In the Motion, Defendants argue that both Counts in Hammond’s Second

Amended Complaint are fatally deficient. As to Hammond’s claim in Count I

that Local 1408 breached its duty of fair representation, Defendants contend

that Hammond has not alleged facts supporting even an inference that its

handling of Hammond’s grievance was arbitrary, discriminatory, or in bad

faith. See Motion at 10–13. And regarding Hammond’s claim in Count II that

USMX breached the CBA, Defendants argue that Hammond relies on “a wholly

irrational construction” of the Seniority Plan, and “has simply cherry-picked

provisions of the wrong version of the [Seniority Plan] to reach his desired

result.”3 See id. at 8–9.

In his Response, Hammond argues that he has plausibly alleged that

Local 1408 breached its duty of fair representation because “it is clear that

[Local 1408] (a) refused to acknowledge [his] seniority rights upon his return to

employment following his leave of absence, and (b) failed to process his

grievance grieving the failure to credit [his] seniority following his return to

employment.” Response at 7. He also argues that “Local 1408 and USMX

employed an irrational interpretation of the seniority provisions of the CBA in

3 According to Defendants, the CBA documents which Hammond attaches to his

Second Amended Complaint are from “the 2018 M & R Contract, and not the 2004 M & R

Contract which was in effect” during Hammond’s employment in 2004. See Motion at 8.

Based on documents Defendants attach to their Motion, they argue that under the earlier

version of the CBA, “seniority status only attached after a worker completed ‘three (3) months

continuous employment,’” not eight hours, and therefore Hammond has failed to plausibly

allege that “seniority status ever attached to him” in 2004. See id. In his Response,

Hammond does not appear to dispute that he was ineligible for seniority at the time he left

his employment in 2004, nor does he appear to dispute the authenticity of the two different

versions of the CBA documents which Defendants attach to their Motion. Instead, Hammond

contends that “[u]pon his return” in 2018, he was entitled to seniority under the new CBA

“based on his 8 hours of employment in 2004,” and he also asserts that he has not been

“provided seniority rights based on his employment from 2018 through the present.” See

Response at 3. But for the reasons discussed below, the Court need not determine whether

Hammond is entitled to seniority under either version of the CBA.

order to deny [him] seniority,” and asserts that Local 1408’s “conduct was taken

for an improper reason.” Id. As to his claim against USMX for breach of the

CBA, Hammond argues that “[e]ven if the eight hours worked were insufficient”

for him to receive seniority in 2004, “he undoubtedly had met the prerequisites

for port-wide seniority under the 2018 standard,” and therefore “should have

immediately been credited with seniority beginning in 2004” upon his return to

work in 2018. See id. at 5. Accordingly, Hammond asserts that USMX

breached “the plain language of the” CBA. See id.

IV. Discussion

“It has long been established that an individual employee may bring suit

against his employer for breach of a collective bargaining agreement.”

DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 163 (1983). While

ordinarily the “employee is required to attempt to exhaust any grievance or

arbitration remedies provided in the collective bargaining agreement,” there is

an exception when the employee alleges that the union has acted “in such a

discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its

duty of fair representation.” Id. at 163–64. The Supreme Court has described

such an action “as a ‘hybrid § 301/fair representation claim.’” Coppage v. U.S.

Postal Serv., 281 F.3d 1200, 1204 (11th Cir. 2002) (quoting DelCostello, 462

U.S. at 165). “The claim is ‘hybrid’ because it includes two causes of action that

are ‘inextricably interdependent.’” Oltmanns v. Int’l Longshoremen’s Assoc.,

837 F. App’x 689, 693 (11th Cir. 2020) (quoting Coppage, 281 F.3d at 1204).4

One is a “suit against the employer” pursuant to Section 301 of the Labor and

Management Relations Act, 29 U.S.C. § 185, for breaching the collective

bargaining agreement, and the other is a “suit against the union” for breaching

its duty of fair representation under the National Labor Relations Act.5

DelCostello, 462 U.S. at 164. Even when a plaintiff elects to “sue one

defendant and not the other,” the “case he must prove is the same whether he

sues [the employer], the [union], or both.” Id. at 165. Accordingly, “to succeed

on [a] hybrid claim at the motion to dismiss stage,” a plaintiff “must plausibly

allege both that (i) his union . . . breached its duty of fair representation, and

(ii) his employer . . . breached a collective bargaining agreement.” Oltmanns,

837 F. App’x at 694 (citing Parker v. Connors Steel Co., 855 F.2d 1510, 1519

(11th Cir. 1988)). “The absence of either allegation is fatal to the complaint.”

Id.

4 The Court does not rely on unpublished opinions as binding precedent, but they may

be cited in this Order when the Court finds them persuasive on a particular point. See

McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022); see generally Fed. R. App. P.

32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not considered binding precedent, but they

may be cited as persuasive authority.”).

5 This statutory duty is not explicitly enumerated, but “is implied under the scheme of

the National Labor Relations Act.” DelCostello, 462 U.S. at 164 & n.14; see also Lobo v.

Celebrity Cruises, Inc., 704 F.3d 882, 886 n.5 (11th Cir. 2013) (explaining that fair-

representation claims arise “under federal common law,” and that the duty is “implied from

[the union’s] status under § 9(a) of the NLRA as the exclusive representative of” its members

(internal quotation omitted)).

A. Duty of Fair Representation

The Court begins with Hammond’s claim in Count I that Local 1408

breached its duty of fair representation. A union’s duty of fair representation

requires the union to “‘represent fairly the interests of all bargaining-unit

members during negotiation, administration, and enforcement of collective

bargaining agreements.’” Harris v. Schwerman Trucking Co., 668 F.2d 1204,

1206 (11th Cir. 1982) (quoting Int’l Brotherhood of Elec. Workers v. Foust, 442

U.S. 42, 47 (1979)). This duty encompasses the obligation to process employee

disputes through contractual grievance channels. Harris v. Chem. Leaman

Tank Lines, Inc., 437 F.2d 167, 171 (5th Cir. 1971).6 But an employee does not

have “an absolute right to have his grievance taken to arbitration.” Vaca v.

Sipes, 386 U.S. 171, 191 (1967). Indeed, a “union is allowed considerable

latitude in its representation of employees.” Schwerman Trucking Co., 668

F.2d at 1206. For example, as the “exclusive agent for all employees in the

bargaining unit, [a] union has the power to sift out frivolous grievances” and

“abandon processing of a grievance which it determines in good faith to be

meritless.” Chem. Leaman Tank Lines, 437 F.2d at 171. And a union may

exercise its discretion to “settle [a] grievance short of arbitration if its decision

6 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the

Eleventh Circuit adopted as binding precedent all the decisions of the former Fifth Circuit

handed down prior to the close of business on September 30, 1981.

is made in good faith, based upon an evaluation of the merits of the employee’s

claim and of the most advantageous expenditure of the [u]nion’s resources.”

See Rogers v. Consol. Freightways Corp. of Del., 504 F. Supp. 357, 359 (M.D.

Fla. 1980).7 Because of its broad discretion in representing employees, a union

breaches its duty of fair representation only if the conduct at issue was

“arbitrary, discriminatory, or done in bad faith.” See Parker, 855 F.2d at 1520.

Here, Hammond alleges that Local 1408 refused to “appropriately adjust

[his] seniority” in response to his grievance, “deferred the decision to its

counsel,” and failed to render any final determination after an unspecified

amount of time. See Second Amended Complaint ¶¶ 24–27. Based on these

alleged failures, Hammond contends that “Local 1408 has therefore breached

its duty of fair representation.” See id. ¶ 34. Assuming arguendo that

Hammond is entitled to seniority under the CBA, it is not enough for Hammond

to plead that Local 1408 failed to pursue his grievance: “a breach of the duty of

fair representation is not established merely by proof that the underlying

grievance was meritorious.” See Vaca, 386 U.S. at 195; Samples v. Ryder

Truck Lines, Inc., 755 F.2d 881, 886 (11th Cir. 1985) (stating that “in the early

stages of the grievance procedure the union has substantial latitude to refuse

7 The Court notes that although decisions of other district courts are not binding, they

may be cited as persuasive authority. See Stone v. First Union Corp., 371 F.3d 1305, 1310

(11th Cir. 2004) (noting that, “[a]lthough a district court would not be bound to follow any

other district court’s determination, the decision would have significant persuasive effects”).

to press even a meritorious grievance”); Neal v. Newspaper Holdings, Inc., 349

F.3d 363, 369 (7th Cir. 2003) (explaining that a union may properly consider

“such factors as the wise allocation of its own resources, its relationship with

other employees, and its relationship with the employer” when deciding

whether to take a claim to arbitration). Instead, Hammond must plead

sufficient factual material, accepted as true, to permit the Court to draw the

reasonable inference that Local 1408’s acts or omissions were “arbitrary,

discriminatory, or done in bad faith.” See Parker, 855 F.2d at 1520; Iqbal, 556

U.S. at 678 (citing Twombly, 550 U.S. at 556). This, Hammond has not done.

As a preliminary matter, the Court notes that while Hammond asserts in

his Second Amended Complaint that Local 1408’s conduct was “arbitrary,” see

Second Amended Complaint ¶ 33, this is simply a legal conclusion which is not

entitled to a presumption of truth. See Iqbal, 556 U.S. at 678. Aside from this

bare legal conclusion, Hammond does not allege any facts which plausibly

suggest that Local 1408’s conduct was arbitrary. A union acts arbitrarily “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 (1991)

(quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953)). And “[c]ases

are uniform in holding that neither negligence on the part of the union nor a

mistake in judgment is sufficient to support a claim that the union acted in an

arbitrary and perfunctory manner.”8 Schwerman Trucking Co., 668 F.2d at

1206. “Nothing less than a demonstration that the union acted with reckless

disregard for the employee’s rights or was grossly deficient in its conduct will

suffice to establish such a claim.” Id. at 1206–07. Hammond’s threadbare

assertions that Local 1408 “deferred the decision to its counsel” and had not

rendered a decision “[t]o date,” see Second Amended Complaint ¶ 24, are

insufficient to permit a reasonable inference that Local 1408 acted “with

reckless disregard” for his rights, or that its handling of his grievance was

“grossly deficient.”9 See Schwerman Trucking Co., 668 F.2d at 1206; see also

Yeftich v. Navistar, 722 F.3d 911, 917 (7th Cir. 2013) (allegations on

8 Perfunctory review of a grievance falls under the arbitrariness prong. See

Oltmanns, 837 F. App’x at 695–96 (characterizing Schwerman Trucking Co. as holding that

“the arbitrariness prong prohibits a union from arbitrarily ignoring or giving perfunctory

review” to a meritorious grievance); see also Crider v. Spectrulite Consortium, Inc., 130 F.3d

1238, 1243 (7th Cir. 1997) (explaining that “the arbitrariness analysis” is an inquiry into “the

objective adequacy of the [u]nion’s conduct” while “the discrimination and bad faith analyses

look to the subjective motivation of the [u]nion officials”).

9 The Fourth Circuit Court of Appeals, in a decision not binding on this Court, has

explained that “[m]alicious or egregious delay in pursuing plaintiffs’ rights can” breach the

duty of fair representation. See Walker v. Consol. Freightways, Inc., 930 F.2d 376, 382 (4th

Cir. 1991). But while Hammond alleges that Local 1408 has delayed in addressing his

grievance, he provides no information about the length of the delay. Indeed, he does not

allege even an approximate date on which he submitted his grievance, nor does he allege facts

suggesting how long the grievance was pending without a decision, or that Local 1408

processed other grievances faster than his. The facts Hammond pleads in his Second

Amended Complaint simply do not permit the inference that any delay in processing his

grievance was malicious or egregious. Cf. Armstrong v. Chrysler Corp., 972 F. Supp. 1085,

1090 (E.D. Mich. 1997) (at summary judgment, determining that a two-year delay in

processing the plaintiff’s grievance was “not per se unreasonable” where there was no evidence

of bad faith, the plaintiff “submitted no proof that the Union typically processes other

grievances faster than his,” and “nothing suggest[ed] that the passage of time affected the

ultimate disposition of [the] plaintiff’s grievance”).

information and belief were too conclusory to state a claim that the union

arbitrarily failed to process grievances where the plaintiffs did not, inter alia,

“give dates or even a time frame across which the grievances were filed,”

“describe the contents of the grievances,” or “explain how long [any plaintiff]

waited after filing a grievance before concluding that it had been abandoned, or

how they knew that such a wait time was an abnormal or arbitrary delay”).

Accordingly, Hammond has failed to plausibly allege that Local 1408 acted

arbitrarily in handling his grievance.

Hammond also fails to plausibly allege that Local 1408 discriminated

against him. To establish that a union breached its duty of fair representation

under “the discrimination prong, a plaintiff must show ‘discrimination that is

intentional, severe, and unrelated to legitimate union objectives.’” See

Oltmanns, 837 F. App’x at 696 (quoting Amalgamated Ass’n of St., Elec. Ry. &

Motor Coach Emps. of Am. v. Lockridge, 403 U.S. 274, 301 (1971)).10 But

10 In Oltmanns, the Eleventh Circuit discussed the duty of fair representation in the

context of the district court’s denial of leave to amend, not its dismissal of the operative

complaint. See Oltmanns, 837 F. App’x at 694 (explaining that the district court properly

dismissed the complaint on other grounds). But this difference in posture does not affect the

relevance of the Eleventh Circuit’s analysis. Notably, the district court in Oltmanns had

denied leave to amend because it determined that the proposed amended complaint still failed

to state a claim for relief, and amendment would therefore be futile. Id. Since futility of

amendment is a conclusion of law, the Eleventh Circuit reviewed this determination de novo

(not for abuse of discretion) and applied “the usual motion to dismiss standard” to the proposed

amended complaint. Id. In other words, the Eleventh Circuit analyzed whether the

proposed amended complaint contained sufficient factual material, accepted as true, to

“sufficiently allege that [the union] breached its duty of fair representation.” See id. at 697.

This is, of course, the standard which the Court must apply to the Second Amended Complaint

in resolving the instant Motion. See Iqbal, 556 U.S. at 678.

Hammond does not plead any facts permitting even an inference that Local

1408 treated him differently from anyone else, let alone that it did so

intentionally. Accordingly, the facts Hammond alleges in the Second Amended

Complaint do not permit even an inference that Local 1408 discriminated

against him. See id. (even where the plaintiff alleged “that under the past port

practice, other employees,” but not the plaintiff, “ha[d] received clerk and

checker seniority . . . based on deck and dockmen hours,” he still failed to state

a claim under the discrimination prong without allegations suggesting that the

difference in treatment was intentional).

Finally, Hammond does not plausibly allege that Local 1408 acted in bad

faith. The bad-faith prong requires a showing that the union acted with an

“improper motive or purpose.” See id. at 696–97 (collecting cases);11 Crider v.

Spectrulite Consortium, Inc., 130 F.3d 1238, 1243 (7th Cir. 1997) (“Whereas the

arbitrariness analysis looks to the objective adequacy of the Union’s conduct,

the discrimination and bad faith analyses look to the subjective motivation of

the Union officials.”). Here, Hammond alleges that “Local 1408’s conduct was

11 The Eleventh Circuit noted in Oltmanns that it was “not aware of any published

decision” it had issued which “expressly requir[ed] allegations of improper motive under the

bad faith prong.” Oltmanns, 837 F. App’x at 696. But after collecting authority, the court

stated, “it is clear to us that such a showing is required under Supreme Court precedent and

our usual understanding of ‘bad faith.’” See id. (citing Lockridge, 403 U.S. at 299, and Bad

Faith, Black’s Law Dictionary (11th ed. 2019)). For his part, Hammond does not dispute

Defendants’ assertion that the bad-faith prong requires a showing of “improper intent or

motive.” See Motion at 12.

in bad faith . . . as evidenced by its failure to represent” him and “the absence

of any legitimate reason” for the denial of seniority rights.12 See Second

Amended Complaint ¶ 32. But he does not plead that Local 1408 acted with

an improper purpose or motive, or any facts supporting an inference that it did.

And his conclusory assertion that Local 1408 did not have “any legitimate

reason” to deny him seniority rights is not entitled to an assumption of truth

and fails to support an inference of such improper intent or motive.

Accordingly, the allegations in Hammond’s Second Amended Complaint do not

plausibly suggest that Local 1408 acted in bad faith.

Having failed to allege facts which plausibly suggest that Local 1408 is

liable under any of the three alternatives to establish a union’s breach of its

duty of fair representation, Hammond has therefore failed to state a claim for

relief against Local 1408. See Twombly, 550 U.S. at 546. In arguing that the

allegations in the Second Amended Complaint are sufficient, Hammond asserts

that “[w]hen a union deliberately turns its back on an employee and sacrifices

that employee’s contractual rights, it has acted improperly.” See Response at

6 (quoting Bennett v. Loc. Union No. 66, Glass, Molders, Pottery, Plastics &

Allied Workers Int’l Union, 958 F.2d 1429, 1438 (7th Cir. 1992)). The problem

with this argument is that even accepting Hammond’s factual allegations as

12 Notably, Hammond does not appear to allege that there was no legitimate reason

for Local 1408’s delay in making a determination as to his grievance.

true and drawing all reasonable inferences in his favor, those allegations simply

do not establish that Local 1408 “deliberately turn[ed] its back” on him. Cf.

Bennett, 958 F.2d at 1435 (in the case Hammond cites, the court reached such

a conclusion because a union and employer intentionally “acted on an ad hoc

basis” to deny the benefits of the collective bargaining agreement to “selected

individuals” but not others). Setting aside Hammond’s legal conclusions, and

assuming arguendo that Hammond’s grievance was meritorious, the allegations

in his Second Amended Complaint establish only that Hammond submitted a

grievance and Local 1408 “failed to provide any determination” regarding this

grievance after some unspecified amount of time. See Second Amended

Complaint ¶¶ 23–27, 30–35. None of the facts Hammond alleges suggest that

any deficiency in handling his grievance was deliberate, or that it was more

than simple “‘negligence’ or [a] ‘mistake in judgment.’” See Oltmanns, 837 at

696. While Hammond may have shown the possibility that Local 1408

breached its duty, his allegations “stop[ ] short of the line between possibility

and plausibility.” See Twombly, 550 U.S. at 546. As the Supreme Court has

made clear, “[t]hreadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Here,

Hammond’s threadbare allegations and conclusory statements in the Second

Amended Complaint are simply insufficient to establish that Local 1408

processed his grievance arbitrarily, discriminated against him, or acted in bad

faith. Accordingly, Hammond’s argument is unavailing.

Hammond also argues in his Response that Local 1408 “employed an

irrational interpretation of the seniority provisions of the CBA” to deny him

seniority. See Response at 7. But this argument contradicts Hammond’s

factual allegations in his Second Amended Complaint, where he affirmatively

alleges that Local 1408 “failed to provide any determination” at all regarding

his grievance.13 See Second Amended Complaint ¶ 27. The facts Hammond

pleads in his Second Amended Complaint do not create a reasonable inference

that Local 1408 reached any conclusion about the interpretation of the seniority

provision, let alone that it relied on such an interpretation to make any decision

or recommendation regarding Hammond’s grievance. 14 Accordingly,

Hammond’s argument is unavailing because it is not supported by any well-

pled allegations of fact. Because Hammond has not alleged sufficient factual

13 As noted above, despite seeking leave to amend partly because Local 1408’s

“executive board finally addressed [Hammond’s] grievance, denying him relief,” see Motion to

Amend at 2, Hammond still alleges in his Second Amended Complaint that “[t]o date, no

decision has been rendered” on his grievance. See Second Amended Complaint ¶ 24. But

even if Hammond had alleged that Local 1408 affirmatively denied him relief, this would not

mean that it found his grievance to be meritless, let alone that it did so based on its

interpretation of the seniority provisions (and not some other reason). See Samples, 755 F.2d

at 886 (stating that a union has discretion to refuse to pursue even a meritorious grievance).

Accordingly, such an allegation—without more—would not lead to a different result.

14 Because Hammond’s allegations do not suggest that Local 1408’s interpretation of

the seniority provision was the reason it “failed to provide any determination,” the Court does

not analyze whether applying such an interpretation would constitute arbitrary,

discriminatory, or bad-faith conduct.

content, accepted as true, to permit any reasonable inference that Local 1408

breached its duty of fair representation, Hammond’s claim in Count I is due to

be dismissed.

B. Breach of the Collective Bargaining Agreement

As discussed above, Hammond’s claim that USMX breached the CBA by

denying him seniority is “‘inextricably interdependent’” with his claim against

Local 1408. See Coppage, 281 F.3d at 1204 (quoting DelCostello, 462 U.S. at

165). Accordingly, the failure of Hammond’s claim against Local 1408 is fatal

to his claim against USMX in Count II, which the Court will dismiss on this

basis. See DelCostello, 462 U.S. at 165 (explaining that “[t]o prevail against

either the company or the [u]nion” on a hybrid claim, an employee “must not

only show” a breach of the collective bargaining agreement, “but must also carry

the burden of demonstrating a breach of duty by the [union]” (emphasis added,

internal quotation marks omitted)); Parker, 855 F.2d at 1521–22 (holding that

the breach of a union’s duty of fair representation is “a crucial element” of a

“hybrid § 301/fair representation claim” against a union and employer); Rupcich

v. United Food & Comm. Workers Int’l Union, 833 F.3d 847, 853 (7th Cir. 2016)

(“If one claim fails, ‘neither claim is viable.’” (quoting Crider, 130 F.3d at 1241));

Chaparro-Febus v. Int’l Longshoremen Ass’n, Loc. 1575, 983 F.2d 325, 331 (1st

Cir. 1992) (summary judgment was warranted on the plaintiffs’ hybrid claims

against an employer because they were “unable to establish [the union’s] breach

of the duty of fair representation”). In doing so, the Court need not and does

not determine whether (or to what extent) Hammond is entitled to seniority

under the CBA, or whether USMX’s failure to credit Hammond with seniority

constituted a breach of the CBA. See Oltmanns, 837 F. App’x at 695 (“Because

we conclude that the proposed complaint fails to sufficiently allege that Local

1475 breached [its] duty [of fair representation], we end our analysis there. We

need not reach the claim that Georgia Stevedore breached a collective

bargaining agreement, and we do not.”).

V. Conclusion

Because Hammond fails to allege sufficient factual material, accepted as

true, to plausibly state a claim that Local 1408 breached its duty of fair

representation, his claim in Count I is due to be dismissed. And without a

viable claim that Local 1408 breached its duty of fair representation, Hammond

cannot pursue his claim in Count II that USMX breached the CBA. The

Motion is therefore due to granted, and the Second Amended Complaint is due

to be dismissed.

Accordingly, it is

ORDERED:

1. The Joint Motion to Dismiss Second Amended Complaint and

Supporting Memorandum of Law of Defendants International

Longshoremen’s Association, Local 1408 and United States

Maritime Alliance, LTD (Doc. 25) is GRANTED.

2. Plaintiff's Second Amended Complaint for Relief and Demand for

Jury Trial (Doc. 14) is DISMISSED.

3. The Clerk of the Court is directed to enter judgment in favor of

Defendants, terminate all pending motions, and close the file.

DONE AND ORDERED in Jacksonville, Florida, on August 21, 2024.

MARCIA MORALES HOWARD

United States District Judge

Ic¢31

Copies to:

Counsel of Record