Pierce v. Schwebel Baking Company

PEARSON, J.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

MARCUS PIERCE, )

) CASE NO. 4:24-cv-612

Plaintiff, )

)

v. ) JUDGE BENITA Y. PEARSON

)

SCHWEBEL BAKING COMPANY, et al., )

) ORDER

Defendant. ) [Resolving ECF Nos. 41 and 43]

Pending before the Court is Defendant Schwebel Baking Company’s (“SBC”) Motion for

Summary Judgment. ECF No. 41. Also pending before the Court is Defendant Local 377

Chauffeurs, Teamsters, Warehousemen & Helpers Union’s (the “Union”) Motion for Summary

Judgment. ECF No. 43. Defendants individually move the Court for judgment as a matter of

law against Plaintiff Marcus Pierce on Count I (claiming SBC had just cause to terminate

Plaintiff’s employment), and Count II (claiming the Union did not breach its duty of fair

representation when it determined Plaintiff’s grievance lacked merit and declined to advance it to

arbitration). ECF Nos. 41 and 43. Both motions have been fully briefed. See Pl. Opp. Br., ECF

No. 51; Def. Union Reply, ECF No. 52; Def. SBC Reply, ECF No. 53. The Court has been

advised, having reviewed the record, the parties’ briefs, and the applicable law. For the reasons

set forth herein, the Court grants Defendants’ motions.

I. BACKGROUND1

A. Plaintiff’s Employment With SBC

SBC employed Plaintiff Marcus Pierce as a semi-truck driver beginning on July 11, 2022.

Pl. Dep. Tr., ECF No. 40-1 at PageID #: 539 at 46:5-19. During his employment, Plaintiff was a

Union member. ECF No. 40-1 at PageID #: 542, 49:8-10. The collective bargaining agreement

(“CBA”) between SBC and the Union indicates that SBC may discipline and/or terminate a

member-employee for just cause. ECF No. 40-1 at PageID #: 877, Ex. 30. Plaintiff

acknowledges that when he was initially hired, he received a copy of SBC’s Employee

Handbook, which divides work rules into two categories: Group A and Group B. ECF No. 40-1

at PageID #: 549, 56:6-8. That handbook states, and Plaintiff acknowledges, that, “[a] violation

of a rule in Group B is considered serious enough so that an employee faces immediate discharge

on the first violation.” ECF No. 40-1 at PageID ##: 549-50, 56:22-57:7; ECF No. 40-1 at

PageID ##: 813-15, Ex. 9. “Insubordination or refusal to perform tasks assigned by supervisors”

falls under Group B and subjects the offending employee to immediate termination. ECF No.

40-1 at PageID ##: 549-50, 56:22-57:7; ECF No. 40-1 at PageID ##: 813-15, Ex. 9.

Plaintiff was responsible for delivering bread from SBC’s bakery in Youngstown, Ohio

to its distribution centers. ECF No. 40-1 at PageID #: 539, 46:5-21. In September 2023,

Plaintiff’s assigned delivery routes included Bridgeville, Pennsylvania and McKeesport,

Pennsylvania. ECF No. 40-1 at PageID #: 540, 47:3-6. His normal route to Bridgeville was to

take the Ohio turnpike into Pennsylvania, exit on to Route 50 (i.e., Millers Run Road), then turn

left at Hickory Grade Road. ECF No. 40-1 at PageID #: 556, 63:7-20. Plaintiff would then turn

1 Because the parties failed to submit stipulated facts, as required, the Court mined

the docket for facts pertinent to the ruling. See ECF No. 56.

onto Southpointe Road before entering the Bridgeville distribution center parking lot and pulling

into the loading dock behind the facility. ECF No. 40-1 at PageID #: 558, 65:18-21.

A. Plaintiff’s Termination

On September 1, 2023, Plaintiff was scheduled to deliver bread to the Bridgeville

distribution center. ECF No. 40-1 at PageID #: 552, 59:6-9. According to Plaintiff’s driving

log,2 he left Youngstown at approximately 6:48 p.m. and arrived in Bridgeville at 8:07 p.m.

ECF No. 40-1 at PageID ##: 55-56, 62:16-63:17; Pl. Driving Log, ECF No. 40-1 at PageID #:

831, Ex. 23. When he arrived, Plaintiff was unable to enter the distribution center parking lot

using the Southpointe entrance because the road was being repaved. ECF No. 40-1 at PageID

##: 556-57, 63:21-64:13. With the assistance of a police officer and a flagger, Plaintiff turned

his truck around and parked along the side of Hickory Grade Road. ECF No. 40-1 at PageID ##:

560-61, 67:4-68:4; Map of Distribution Center Area, ECF No. 40-1 at PageID #: 820, Ex. 11;

ECF No. 49-14 at PageID #: 1291.

Plaintiff then called his SBC supervisors for instruction. ECF No. 40-1 at PageID ##:

563-64, 568. The supervisors provided Plaintiff with two alternative methods of delivery: (1)

use a second entrance near the T2 CrossFit gym; or (2) pull into a nearby parking lot and wait for

the distribution center to send smaller trucks to transfer the cargo. Behmer dep. Tr., ECF No. 39-

1 at PageID ##: 449-50, 13:2-14:5; Rosales dep. Tr., ECF No. 38-1 at PageID #: 392, 8:4-13.

Plaintiff also called Robert Ford, Sr., a Union Steward, for additional guidance. ECF No. 40-1 at

2 SBC states that consistent with its obligations under the Federal Motor Carrier

Safety Administration’s Hours of Service regulations, SBC tracks the amount of time

drivers are actively driving so as not to exceed the 11-hour driving limit. See 49 C.F.R. §

395.3(a); Pl. Driving Log, ECF No. 40-1 at PageID ##: 828-48, Ex. 23.

PageID #: 564, 71:11-13; 822, Ex. 14. Plaintiff alleges that during that call, Mr. Ford told him to

drive through the cones and the construction site into the parking lot. ECF No. 40-1 at PageID

##: 565-66, 72:25-73:9. Mr. Ford denies telling Plaintiff to drive through the cones. Ford dep.

Tr., ECF No. 36-1 at PageID #: 346, 32:3-14.

Plaintiff chose none of SBC’s proposed options. Rather, he claims that: (1) the T2

CrossFit entrance had a sign reading: “No thru-way – No semis allowed”3 (ECF No. 40-1 at

PageID #: 598, 105:9-13); and (2) the parking lot near the Bridgeville distribution center was full

of construction crew vehicles and equipment. ECF No. 40-1 at PageID #: 570, 77:1-7. SBC

Vice President of Sales James Behmer testified:

So, the solution that we came up with was to – you know, if he

wasn’t comfortable, you know, taking the truck through the back

way, which apparently he was not, that we would have him go down

to the shopping area that’s at the bottom of the hill, less than half a

mile away, stop there, and we would get individuals out of the

shipping department to take some straight trucks down and pull the

load off of the transport truck by backing it up to each other, you

know, bumper-to-bumper . . . and roll the product into the straight

trucks, and then they would take it back to the distribution center.

J. Behmer dep. Tr., ECF No. 39-1 at PageID ##: 449-50, 13:18-14:5. Plaintiff refused to pull

into the shopping center, claiming that the parking lot was full of cars and he did not think he

could safely park and unload there. ECF No. 40-1 at PageID #: 570, 77:12-17.

3 Although Plaintiff submitted as much in his proposed uncontested facts (ECF No.

55 at PageID #: 1391, ⁋ 6), Defendants have not agreed to this fact. Defs. Proposed Stip.

Facts, ECF Nos. 42, 54. As discussed herein, Plaintiff’s claim that there was signage

explicitly prohibiting semi-trucks from entering the T2 CrossFit gym parking lot is not

supported by evidence in the record. See Parking Lot Sign ECF No. 40-1 at PageID #: 827,

Ex. 18.

After a police officer ordered Plaintiff to move his truck, he drove back to Hickory Grade

Road, turned right on to Route 50, and reentered the turnpike towards Youngstown. ECF No.

40-1 at PageID #: 574, 81:12-23. He had been in Bridgeville for approximately 34 minutes. See

Pl. Driving Log, ECF No. 40-1 at PageID #: 831, Ex. 23.

When SBC learned Plaintiff was driving back to Youngstown, shift supervisor Jeriel

Harris called him and instructed him to find a safe place to park in or near Bridgeville to await

further instructions. See Rosales dep. Tr., ECF No. 38-1 at PageID #: 396, 12-7-15; Behmer dep.

Tr., ECF No. 39-1 at PageID ##: 449-50, 13:18-14:5; Anzevino dep. Tr., ECF No. 49-1 at

PageID #: 1197, 43:15-17. SBC Director of Logistics and Transportation Abraham “A.J.”

Rosales also tried contacting Plaintiff to direct him to return to Bridgeville and complete the

delivery. ECF No. 38-1 at PageID #: 397, 13:11-20. At 9:41 p.m., Mr. Rosales texted Plaintiff:

Marcus, this is A.J. I’ve been trying to contact you. This is a Direct

Order to turnaround and deliver the Bridgeville load. If you refuse

and fail to deliver you will be terminated!

ECF No. 40-1 at PageID #: 823, Ex. 15. Plaintiff did not comply. He pulled into the

Youngstown bakery at approximately 10:07 p.m., turned in his paperwork, and left. ECF No.

40-1 at PageID ##: 585-86, 92:21-93:1; Pl. Driving Log, ECF No. 40-1 at PageID ##: 831-32,

Ex. 23. That same night, another SBC employee, Robert Ford, Jr., took Plaintiff’s semi-truck

back to Bridgeville and successfully completed the delivery using the alternative entrance

without incident. Behmer dep. Tr., ECF No. 39-1 at PageID #: 465, 29:1-24.

B. Grievance Process

On September 2, 2023, Transportation Manager John Ritzler notified Plaintiff that he was

suspended pending an investigation into his refusal to complete his assigned delivery. ECF No.

40-1 at PageID #: 595, 102:11-15. On September 13, 2023, Plaintiff requested and received a

letter with his hire date and last date worked. ECF No. 40-1 at PageID #: 783, Ex. 7. With the

assistance of Local Union President Steve Anzevino, Plaintiff grieved his termination. Pl.

Grievance Report, ECF No. 40-1 at PageID #: 849, Ex. 24; Anzevino dep. Tr., ECF No. 49-1 at

PageID #: 1163, 9:10-23. SBC denied the grievance, concluding it was untimely and that SBC

had just cause to terminate Plaintiff’s employment. Grievance Denial, ECF No. 40-1 at PageID

#: 850, Ex. 25. Mr. Anzevino assisted Plaintiff in appealing the denial, represented him during

the grievance hearing and argued on his behalf. ECF No. 40-1 at PageID #: 686, 193:5-6. While

SBC agreed that the grievance was timely, it denied the grievance on its merits, maintaining that

it had just cause to terminate Plaintiff’s employment. Grievance Appeal Decision, ECF No. 40-1

at PageID #: 852, Ex. 27.

Mr. Anzevino conferred with Union legal counsel, relaying “the facts of the case, and

[legal counsel’s] determination to me was we were highly, highly unlikely to win this case in

arbitration.” ECF No. 49-1 at PageID #: 1160, 6:9-12. Based on that assessment, Mr. Anzevino

notified Plaintiff that the Union would not advance his grievance to arbitration. ECF No. 40-1 at

PageID #: 835, Ex. 28. Plaintiff appealed the decision to the Union’s executive board, which

affirmed Mr. Anzevino’s decision because Plaintiff failed to present new evidence at his appeal

hearing. ECF No. 40-1 at PageID #: 854, Ex. 29.

II. Standard of Review

Summary judgment is appropriate when the pleadings, the discovery and disclosure

materials on file, and any affidavits show “that 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); see Johnson v.

Karnes, 398 F.3d 868, 873 (6th Cir. 2005). The moving party is not required to file affidavits or

other similar materials negating a claim on which its opponent bears the burden of proof, so long

as the movant relies upon the absence of an essential element in the pleadings, depositions,

answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). The moving party must “show that the non-moving party has failed to establish an

essential element of his case upon which he would bear the ultimate burden of proof at trial.”

Guarino v. Brookfield Twp. Trustees., 980 F.2d 399, 403 (6th Cir. 1992).

Once the movant makes a properly supported motion, the burden shifts to the non-

moving party to demonstrate the existence of genuine dispute. An opposing party may not

simply rely on the pleadings. Rather, it must “produce evidence that results in a conflict of

material fact to be resolved by a jury.” Cox v. Ky. Dep’t. of Transp., 53 F.3d 146, 150 (6th Cir.

1995). The Court must view the evidence in the light most favorable to the non-moving party

when deciding whether a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144

(1970).

The United States Supreme Court directs that for summary judgment to be granted, there

can be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). To withstand summary judgment, the non-movant must show sufficient evidence to

create a genuine issue of material fact. Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir.

1990). A mere scintilla of evidence supporting the non-moving party’s position will not

ordinarily be sufficient to avoid summary judgment. Id. A mere factual dispute between the

parties will not defeat an otherwise properly supported motion for summary judgment. Scott v.

Harris, 550 U.S. 372, 380 (2007). A fact is “material” only if its resolution will affect the

outcome of the lawsuit. In determining whether a factual issue is “genuine,” the Court must

decide whether the evidence is such that reasonable jurors could find that the non-moving party

is entitled to a verdict. Anderson, 477 U.S. at 248. Summary judgment “will not lie . . . if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The

same standard of review applies to cross-motions for summary judgment. United Food &

Commercial Workers Union Local No. 17A v. Hudson Ins. Co., No. 5:11CV2495, 2012 WL

2343905, at *2 (N.D. Ohio June 20, 2012) (Pearson, J.).

III. Discussion

A. Legal Standard for a Hybrid § 301 Action

Plaintiff has filed this action under § 301 of the Labor Management Relations Act,

alleging that SBC discharged him without just cause (Count I) and that the Union breached its

duty of fair representation (Count II). Compl., ECF No. 1. An action brought by an employee

under § 301 against both an employer and a union is recognized as a “hybrid” action. Winston v.

Gen. Drivers, Warehousemen & Helpers, Loc. Union No. 89, 93 F.3d 251, 254 (6th Cir. 1996);

see Labor Management Relations Act, 1947, 61 Stat. 156 §301, 29 U.S.C. § 185(a). Hybrid §

301 actions involve two interrelated claims: (1) breach of a collective bargaining agreement by

an employer; and (2) breach of the duty of fair representation by a union. Garrison v. Cassens

Transport Co., 334 F.3d 528, 538 (6th Cir. 2003) (quoting Black v. Ryder/P.I.E. Nationwide,

Inc., 15 F.3d 573, 583 (6th Cir. 1994)). Because the two claims are inextricably linked, to

“prevail against either the company or the Union, . . . [employee-plaintiffs] must not only show

that their discharge was contrary to the contract but must also carry the burden of demonstrating

a breach of duty by the Union.” DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164

(1983) (quoting United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 64 (1981)) (brackets in

original; internal quotations omitted); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71

(1976). Stated another way, if Plaintiff cannot satisfy both prongs, he cannot prevail against

either Defendant. Garrish v. Int’l United Auto. Aerospace & Agric. Implement Workers of Am.,

417 F.3d 590, 594 (6th Cir. 2005) (citing Vencl v. Int’l Union of Operating Eng’rs, Local 18, 137

F.3d 420, 424 (6th Cir. 1998); Bagsby v. Lewis Bros. of Tenn., 820 F.2d 799, 801 (6th Cir. 1987).

SBC retains the right to discipline and terminate employed union members for just cause

under Article 13 of the CBA. See Collective Bargaining Agreement, ECF No. 40-1 at PageID

##: 877, Ex. 30; Pl. dep. Tr., ECF No. 40-1 at PageID #: 550, 57:8-11. “Insubordination or

refusal to perform tasks assigned by supervisors” constitutes just cause under the Employee

Handbook. SCB Employee Handbook, ECF No. 40-1 at PageID ##: 813-15, Ex. 9; Pl. dep. Tr.,

ECF No. 40-1 at PageID #: 550, 57:8-11. At issue is whether: (1) SBC had just cause to

terminate Plaintiff’s employment because he was, in fact, insubordinate on September 1, 2023 by

failing to deliver bread to the Bridgeville distribution center; and (2) the Union breached its duty

of fair representation when it refused to advance Plaintiff’s grievance to arbitration. As

explained below, there is no genuine issue of material fact regarding whether SBC had just cause

to terminate Plaintiff’s employment, or whether the Union breached its duty of fair

representation to Plaintiff.

B. Count I – Wrongful Termination

Defendants claim they are entitled to summary judgment because SBC had just cause to

terminate Plaintiff’s employment for failing to deliver bread to the Bridgeville distribution center

on September 1, 2023. SBC claims Plaintiff was insubordinate when he made no real effort to

comply with instructions to either deliver the bread or wait nearby for other trucks to unload his

trailer. Plaintiff counters that he was unable to access the distribution center’s normal entrance

because of a repaving project and the alternative options provide by SBC were unlawful or

unsafe, thereby negating his required compliance.

1. Legal Standard

A plaintiff’s subjective belief that an employer’s directive is unlawful or unsafe is

insufficient to survive summary judgment. Chavez v. Dakkota Integrated Sys., LLC, 832 F.

Supp. 2d 786, 802-03 (W.D. Ky. 2011). Rather, a plaintiff must show “evidence that [the]

defendant’s actions were, in fact, violations of [state] law[.]” Id. In Vonderhaar v. Waymire, the

plaintiff sued her former employer for constructive discharge, claiming that her colleagues were

engaging in fraud and that she was at risk of participating in unlawful conduct if she remained

employed. 797 F. App’x 981, 994-95 (6th Cir. 2020). Defendant was entitled to summary

judgment because plaintiff had not submitted evidence that her colleagues were violating state

law. Id. at 995. The Sixth Circuit explained that “without evidence concerning the specific laws

at issue, a jury could not find that [plaintiff] risked engaging in illegal behavior by continuing to

work [for] the [employer].” Id. (emphasis in original) (citing Chavez, 832 F. Supp. at 802-03).

While Vonderheer concerned an at-will employee’s wrongful termination claim, it is still

instructive. In Garcia v. NLRB, a Ninth Circuit case cited by Plaintiff, an employee refused to

obey his supervisor’s directive to tap his horn when he stopped to make residential deliveries,

citing a local ordinance forbidding honking except for safety reasons. 785 F.2d 801, 808 (9th

Cir. 1986). The court concluded that employers cannot require their employees to violate state

law and that contracts or awards stating otherwise violate public policy. Id. at 810 (citing

Banyard v. Nat’l Lab. Rel. Bd., 505 F.2d 342, 347 (D.C. Cir. 1974). Garcia is distinguished

from the instant case because it pointed to a specific state ordinance that the plaintiff was

directed to violate. See id. at 808 n. 1; see also Banyard, 505 F.2d at 343 n. 6 (identifying

parties’ stipulation that Ohio law prohibits weight exceedances for certain vehicles and that

plaintiff refused to pull an overweight load).

As set forth below, Plaintiff has failed to submit or identify evidence supporting his

claims that it was unlawful or unsafe to comply with SBC’s directives. Therefore, he has not

met his burden to show that there is genuine issue of material fact as to whether SBC had just

cause to terminate his employment.

2. Drive Through the Cones

Plaintiff alleges that SBC instructed him to drive through construction cones. Pl. dep.

Tr., ECF No. 40-1 at PageID #: 576, 83:4-18; Pl. Opp. Br., ECF No. 51 at PageID #: 1352. This

is contested by SBC (see Rosales dep. Tr., ECF No. 38-1 at PageID #: 424, 40:2-4; Ford dep. Tr.,

ECF No. 36-1 at PageID #: 346, 32:3-14), and is also contradicted by Plaintiff’s deposition

testimony. ECF No. 40-1 at PageID #: 596, 103:5-13. Specifically, Plaintiff admitted that only

Robert Ford, Sr., who is not an SBC supervisor, told him to drive through the cones and that no

other SBC employees or managers gave him that instruction. ECF No. 40-1 at PageID #: 596,

103:5-13. Whether Plaintiff was instructed to drive through construction cones is immaterial, as

SBC provided several alternatives to deliver the bread, including a second entrance or parking

nearby to wait for smaller trucks. Plaintiff must point to evidence in the record demonstrating

some genuine issue of fact exists as to whether these other options were unlawful or unsafe. He

has failed to meet that burden.

3. Alternate Entrance Option

The parties agree that there is an alternate entrance to the Bridgeville distribution center.

ECF No. 40-1 at PageID #: 599, 106:21-23. This entrance requires trucks to drive through the

adjoining parking lot of a local business, T2 CrossFit gym. ECF No. 40-1 at PageID #: 820, Ex.

11. The parties also agree that there is a sign at the parking lot entrance reading, “Not A Thru-

Way.” ECF No. 40-1 at PageID ##: 825-27, Ex. 16-18. The parties disagree, however, on three

points: (1) whether the sign explicitly prohibited semi-trucks from entering the parking lot; (2)

the legal effect and enforceability of the sign; and (3) whether it was safe to use the alternate

entrance.

First, Plaintiff’s claim that there was signage explicitly prohibiting semi-trucks from

entering the T2 CrossFit parking lot is contradicted by the evidence. See ECF No. 40-1 at

PageID #: 827, Ex. 18. A photograph shows that the sign does not reference semi-trucks and

only reads: “No Thru Way – T2 CrossFit Only.” ECF No. 40-1 at PageID #: 827, Ex. 18.

Plaintiff claims that someone altered the sign after September 1, 2023, and that the “no semis”

portion was removed and replaced with “T2 CrossFit Only.” ECF No. 40-1 at PageID #: 584,

91:15-24. Plaintiff proffers no evidence supporting this claim. Neither has he produced

evidence of any other signs explicitly prohibiting semi-trucks from entering the parking lot or

using the alternate entrance.

Next, Plaintiff claims the sign prohibited throughway traffic and that the police would

have issued a citation had he used the alternate entrance. ECF No. 40-1 at PageID #: 611, 118:5-

9. Plaintiff is required to identify some legal authority or evidence, beyond his subjective belief,

demonstrating that using the alternate entrance was violative of a state law, regulation, or

ordinance. See Vonderdeer, 797 F. App’x at 995. Plaintiff points to no Pennsylvania statute,

regulation, or ordinance supporting his claim.4 Indeed, it is undisputed that another SBC

4 Plaintiff included, but did not reference in his brief or during deposition examination,

“Exhibit 13,” (Anzevino dep. Tr., ECF No. 49-13 at PageID #: 1290) an official Pennsylvania

warning sign description for “No Thru Street” signs. Even if Plaintiff had properly authenticated

this exhibit, he failed to demonstrate that the official justification and enforceability provisions of

“no thru street” signs apply in this case. It is clear the sign at issue does not comport with the

dimensions of an official “no thru street” sign (compare, ECF No. 49-10, with ECF No. 40-13)

and Plaintiff has not demonstrated that the sign was issued or enforced by Pennsylvania authorities.

employee, Robert Ford, Jr., used the same entrance without receiving a citation. ECF No. 40-1

at PageID #: 619, 126:13-18; Behmer dep. Tr., ECF No. 39-1 at PageID #: 465, 29:4-24. In

addition, Plaintiff admits that there were police officers nearby, but he did not ask for permission

to use the alternate entrance. ECF No. 40-1 at PageID ##: 602-03, 109:21-110:7.

Similarly, Plaintiff relies on his subjective belief that entering the T2 CrossFit parking lot

would be a trespass. ECF No. 40-1 at PageID #: 608, 115:8-24. Aside from the sign itself—

which he admits did not display the message “no trespassing” (ECF No. 40-1 at PageID #: 609,

116:11-13)—Plaintiff offers no evidence that entering the parking lot would constitute as a

trespass. ECF No. 40-1 at PageID ##: 608-09, 115:19-116:6. Accordingly, Plaintiff has not met

his burden to show a genuine issue of material fact exists as to whether it was unlawful to use the

alternate entrance.

Finally, Plaintiff claims that the alternate entrance was unsafe because during his SBC

training, he was instructed not to use the alternate entrance due a “dip” in the road, which created

a tipping hazard, and the additional risk of hitting overhead wires. ECF No. 40-1 at PageID #:

667-68. 174:4-175:24; Compl., ECF No. 1 at PageID #: 3, ⁋ 10. SBC argues that it informed

Plaintiff the distribution center would send employees to guide him safely over the dip and

through the entrance. Rosales dep. Tr., ECF No. 38-1 at PageID #: 392, 8:4-13. Plaintiff retorts

he was never told that someone would help him navigate the back entrance. ECF No. 40-1 at

PageID #: 585, 92:7-12. Later that evening, however, Mr. Ford, Jr. safely completed Plaintiff’s

delivery using the alternate entrance with the assistance from the distribution center’s employees.

ECF No. 38-1 at PageID #: 394, 10:1-15.

Although Plaintiff has not demonstrated there is a genuine issue of fact as to whether the

alternate entrance was lawful and safe, the record indicates that Plaintiff was at least

uncomfortable with the prospect of using that option, either because he was unsure of his own

driving abilities or some other subjective safety concern. See, e.g., ECF No. 40-1 at PageID #:

599, 106:7-14. For that reason, SBC provided him with the second option: find a place nearby to

park and wait for smaller box trucks to unload his trailer.

4. Park and Wait Option

As with the first option, Plaintiff has not identified any evidence that the directive to

park and wait was unlawful or unsafe. Because Plaintiff was unwilling to use the alternate

entrance, SBC instructed him to find a safe place in Bridgeville to park and wait, suggesting the

parking lot across the street or the shopping center at the bottom of the hill. Behmer dep. Tr.,

ECF No. 39-1 at PageID ##: 449-50, 13:2-14:5; Anzevino dep. Tr., ECF No. 49-1 at PageID ##:

1214-15, 60:25-61:10; Rosales dep. Tr., ECF No. 38-1 at PageID #: 392, 8:5-9. Plaintiff rejected

both options, claiming that the parking lot across the street was full of construction crew vehicles

(ECF No. 40-1 at PageID #: 570, 77:1-11), and that the shopping complex parking lot was full of

restaurant patron vehicles. ECF No. 40-1 at PageID #: 570, 77:12-17. After being told to move

by police, Plaintiff claims he looked around for somewhere to park and determined there were no

safe options. ECF No. 40-1 at PageID ##: 569-70, 76:24-77:3. He then drove to Route 50,

turned right, and entered the turnpike towards Youngstown. ECF No. 40-1 at PageID #: 574,

81:18-23; ECF No. 55 at PageID #: 1391, ⁋ 12; ECF No. 54 at PageID #: 1386, ⁋ 17.

Defendants point to evidence that there were several other options for Plaintiff to park his

truck near the distribution center. SBC Mot. Summ. J., ECF No. 41-1. For instance, the

shopping center at the bottom of the hill had another entrance off Route 50. Map of Distribution

Center Area, ECF No. 40-1 at PageID #: 820, Ex. 11. There was also a Giant Eagle grocery

store about one mile down Route 50 in the other direction, and to which SBC makes deliveries.

Anzevino dep. Tr., ECF No. 49-1 at PageID #: 1197, 43:22-25.

Plaintiff admits that he did not attempt to drive further down Route 50 to locate a safe

parking spot in Bridgeville, claiming he did not know whether his semi-truck was permitted on

that road. ECF No. 40-1 at PageID ##: 574-75, 81:24-82:3. Plaintiff offers no evidence (e.g.,

signage indicating weight limits or prohibiting semis) that he was prohibited from driving in

either direction along Route 50 to find a safe place to park.5 Plaintiff’s claim is dubious given

that his normal route to the distribution center exits the turnpike directly onto Route 50. ECF

No. 40-1 at PageID #: 556, 63:7-13. Presumably, semi-trucks may lawfully drive on that road

for more than a single intersection, otherwise signs would instruct to the contrary. Plaintiff has

presented no such evidence and, accordingly, has not satisfied his burden to show there is a

genuine issue of material fact that it was unlawful and/or unsafe to drive further down Route 50

to locate a safe parking spot.

Plaintiff makes similar arguments explaining why he refused to exit the turnpike and

either park or return to Bridgeville. ECF No. 40-1 at PageID ##: 577-78, 84:14-17, 21-85:3. In

particular, Plaintiff argues that he did not know if his truck was permitted on the roads off the

turnpike. ECF No. 40-1 at PageID #: 577, 84:14-20. Plaintiff offers no evidence indicating that

5 Plaintiff submitted a photograph of a road sign indicating a weight limit. ECF

No. 49-21 at PageID #: 1298. This exhibit appears to have been used during Plaintiff’s

unemployment hearings, which were conducted in December 2023. See ECF No. 49-2.

Plaintiff explained that the sign is posted along the road going into the neighborhood near

the distribution center. ECF No. 49-2 at PageID #: 1246. This sign was not posted along

Route 50 or any of the turnpike exits, and Plaintiff has not offered any other evidence that

driving further down Route 50 or exiting to the turnpike to turn around and return to

Bridgeville would have been unlawful or prohibited.

his semi-truck was not permitted to use the turnpike exits or the side streets connected thereto in

order to turn around and return to Bridgeville. Instead, he argues that turning around would have

been futile because SBC had not provided him with any other safe or lawful alternative options

to deliver the bread. ECF No. 40-1 at PageID #: 583, 90:13-24. His futility argument is not well

taken. As discussed above, even accounting for his discomfort about using the alternate

entrance, Plaintiff has failed to demonstrate that it would have been unlawful or unsafe for him

to park in Bridgeville while SBC figured out a solution.

Plaintiff argues that SBC’s directive to park in the emergency lane and wait for smaller

trucks to arrive to unload the bread on the side of the road was unlawful and unsafe. Pl. Opp.

Br., ECF No. 51 at PageID ##: 1357-58; Pl. Proposed Stip. Facts, ECF No. 55 at PageID #: 1391,

⁋ 13. SBC contests that it instructed Plaintiff to unload his truck while parked in the emergency

lane. See Behmer dep. Tr., ECF No. 39-1 at PageID #: 481, 45:19-22. Rather, SBC claims that

it instructed Plaintiff to either pull over and wait for further instructions or exit the turnpike, turn

around, and return to Bridgeville. Rosales dep. Tr., ECF No. 38-1 at PageID #: 397, 13:11-13;

Pl. dep. Tr., ECF No. 40-1 at PageID #: 823, Ex. 15. Mr. Behmer testified that, had Plaintiff not

been on the turnpike, he would never have been instructed to pull over to the side of the road in

the first instance. ECF No. 39-1 at PageID #: 481, 45:8-18. Mr. Anzevino also testified that “if

[Plaintiff would] have . . . pulled off at another exit and found somewhere safe, we may not be

sitting here.” See Anzevino dep. Tr., ECF No. 49-1 at PageID #: 1225, 71:14-16.

Plaintiff does not identify any legal authority supporting his claim that it is unlawful to

park on the side of the turnpike absent an emergency or mechanical issue his truck. ECF No. 40-

1 at PageID #: 578, 85:10-16. It is immaterial whether it is lawful or unsafe to pull over and park

in the emergency lane on the freeway because SBC provided Plaintiff with lawful and safe

options before he reentered the turnpike. Behmer dep. Tr., ECF No. 39-1 at PageID ##: 449-50,

13:2-14:5. See Anzevino dep. Tr., ECF No. 49-1 at PageID #: 1202, 48:7-25.

Plaintiff has not demonstrated that it was unlawful or unsafe to: (1) find a safe location to

park in Bridgeville; or (2) exit the turnpike and return to Bridgeville. Mr. Rosales warned

Plaintiff that failure to complete the delivery would result in his termination. ECF No. 40-1 at

PageID #: 823, Ex. 15. Plaintiff made no reasonable effort to locate a safe place in or near

Bridgeville to park his truck before unilaterally deciding to return to Youngstown. Similarly,

while on the turnpike, he made no effort to pull over or turn around, nor has he presented

evidence that SBC’s directives were unlawful or unsafe. Accordingly, there is no genuine issue

of material fact regarding whether SBC had just cause to discharge Plaintiff for insubordination.

SBC had just cause to terminate Plaintiff’s employment.

C. Count II – Breach of Duty of Fair Representation

Assuming, arguendo, that SBC did not have just cause to terminate Plaintiff’s

employment, Plaintiff can only succeed on his hybrid § 301 claim against both Defendants if he

can demonstrate that the Union violated its duty of fair representation. Hines, 424 U.S. at 570-

71.

A union’s decision to not arbitrate an employee’s grievance, standing alone, is

insufficient to demonstrate the union breached its duty of fair representation. Poole v. Budd Co.,

706 F.2d 181, 184 (6th Cir. 1983); Dobrski v. Ford Motor Co., 698 F. Supp. 2d 966, 991 (N.D.

Ohio 2010) (citing Vaca v. Sipes, 386 U.S. 171, 191 (1967)). The issue is not whether the Union

acted incorrectly, but whether it handled Plaintiff’s grievance in a manner that “is arbitrary,

discriminatory, or in bad faith.” See Kassab v. Aetna Indus., Inc., 54 F. App’x 819, 823 (6th Cir.

2002) (citing Vaca, 386 U.S. at 190). Each of these components requires a separate inquiry and

Plaintiff must point to some evidence supporting at least one of them to survive summary

judgment. Merrit v. Int’l Ass’n of Machinists & Aerospace Workers, 613 F.3d 609, 619 (6th Cir.

2010).

Plaintiff does not allege the Union acted in a discriminatory manner, nor has he identified

evidence demonstrating the Union’s decisions were motivated by an invidious animus. See

Dragomire v. Local 112 Int’l Union United Auto., Aerospace & Agric. Implement Workers of

Am., 64 F. Supp. 3d 1033, 1054-55 (N.D. Ohio 2014) (quoting Considine v. Newspaper Agency

Corp., 43 F.3d 1349, 1359-60 (10th Cir. 1994)) (a plaintiff’s claim that the union’s action was

discriminatory must be “based upon impermissible or immutable classifications such as race or

other constitutionally protected categories, or arises from prejudice or animus.”).

Rather, Plaintiff argues that the Union’s decision to not proceed to arbitration was both

arbitrary and in bad faith. To demonstrate the Union acted in bad faith, Plaintiff must show that

it acted “with an improper intent, purpose, or motive . . . encompass[ing] fraud, dishonesty, and

other intentionally misleading conduct.” Merrit, 613 F.3d at 619 (citing Spellacy v. Airline

Pilots Ass’n-Int’l, 156 F.3d 120, 126 (2d Cr. 1998)). A union’s decision is arbitrary if, “in light

of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far

outside a ‘wide range of reasonableness’ as to be ‘wholly irrational.’” Garrison, 334 F.3d at 538

(6th Cir. 2003) (quoting Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991)). Mere

negligence, ordinary mistakes, or errors in judgment are insufficient to meet the arbitrary

standard. Id. (citing Walk v. P*I*E* Nationwide, Inc., 958 F.2d 1323, 1326 (6th Cir. 1992)). A

union’s decisions are afforded broad deference under the arbitrary prong and district courts are

careful not to substitute their judgments for those of the authorized union representatives.

Merrit, 613 F.3d at 620 (citing Ratkosky v. United Transp. Union, 843 F.2d 869, 876 (6th Cir.

1988)); O’Neill, 499 U.S. at 78 (a union’s determination whether to proceed to arbitration is to

be accorded a “wide range of reasonableness.”).

According to Plaintiff, the Union reviewed his grievance “without defining the rationale

for its decision not to go forward.” ECF No. 51 at PageID #: 1360. The record does not support

this argument. During the grievance process, Plaintiff was represented by Local Union President

Steven Anzevino, who spoke on Plaintiff’s behalf and advocated, albeit unsuccessfully, for

Plaintiff’s reinstatement under a last chance agreement. ECF No. 43-1 at PageID #: 948, ⁋ 17.6

Mr. Anzevino investigated Plaintiff’s grievance, visited the distribution center (ECF No. 49-1 at

PageID #: 1185, 31:9-13), spoke with SBC personnel about the incident, and reviewed Plaintiff’s

driving log. ECF No. 49-1 at PageID ##: 1192-93, 38:15-3; Anzevino Aff., ECF No. 43-1 at

PageID #: 947, ⁋⁋ 7-9. Mr. Anzevino assisted Plaintiff in filing a grievance, despite concerns

that it was untimely. ECF No. 40-1 at PageID ##: 634-35, 141:24-142:8; Pl. Grievance Report,

ECF No. 40-1 at PageID #: 849, Ex. 24; Anzevino dep. Tr., ECF No. 49-1 at PageID #: 1163,

9:10-23. It is undisputed that during the grievance hearing, SBC conceded Plaintiff’s grievance

was timely. ECF No. 54 at PageID #: 1387, ⁋⁋ 27, 29; ECF No. 40-1 at PageID #: 686, 193:12-

15; Anzevino dep. Tr., ECF No. 49-1 at PageID #: 1179, 25:20-23. Still, SBC denied the

grievance on the merits. ECF No. 40-1 at PageID #: 852, Ex. 27. After the denial, Mr. Anzevino

informed Plaintiff that the Union determined his grievance lacked merit and would not pursue

6 The Union included Mr. Anzevino’s affidavit with its motion for summary

judgment, detailing the steps Mr. Anzevino took to investigate Plaintiff’s grievance and

included statements from other SBC personnel. ECF No. 43. Plaintiff, in his reply, does

not contest Mr. Anzevino’s attempt to negotiate a last chance agreement for him. See ECF

No. 51.

arbitration. ECF No. 40-1 at PageID #: 853, Ex. 28. During his deposition, Mr. Anzevino

explained his decision:

In this instance . . . I had contacted one of our attorneys, John Doll,

I gave him the facts of the case, and his determination to me was we

were highly, highly unlikely to win this case in arbitration.

So with that information, thus I sent a letter to Mr. Pierce saying that

we would not be forwarding it, that he had the right to appeal to our

executive board.

And he did so, he came in, he presented any and all evidence that he

possibly could have, and explained his side of the story to our

executive board. And our executive board then made the

determination to still not forward it to arbitration[.]

ECF No. 49-1 at PageID #: 1160, 6:7-22; ECF No. 40-1 at PageID #: 854, Ex. 29.

The Union considered Plaintiff’s grievance, consulted with an attorney, and made a good-

faith decision to not proceed to arbitration. ECF No. 49-1 at PageID #: 1160, 6:7-22. Because

Plaintiff had not produced any additional evidence supporting his grievance, the Union decided

not to pursue arbitration. ECF No. 40-1 at PageID #: 854, Ex. 29. Plaintiff has not identified

any evidence that the Union handled his grievance in a perfunctory manner or that its decision to

not arbitrate had no rational explanation. See Poole, 706 F.2d at 184 (collecting cases) (“It is

true that gross mistake or inaction which has no rational explanation may constitute a breach of

the duty of fair representation.”). In addition, Plaintiff has not demonstrated that the Union

engaged in fraud or deceit while representing him throughout the grievance process. As

discussed above, the Union investigated Plaintiff’s grievance, actively represented his interests,

concluded that his grievance lacked sufficient merit to move forward to arbitration, and informed

Plaintiff of that decision. Plaintiff offers no evidence demonstrating the Union acted arbitrarily

or in bad faith.

Because there is no genuine issue of material fact as to whether the Union breached its

duty of fair representation to Plaintiff—it did not—Defendants are entitled to summary

judgment.

IV. Conclusion

For the reasons stated herein, Defendants’ Motions for Summary Judgment (ECF Nos. 41

and 43) are granted. Judgment will be entered in favor of Defendants. The case is dismissed

with prejudice. Trial is cancelled.

IT IS SO ORDERED.

September 25, 2025 /s/ Benita Y. Pearson

Date Benita Y. Pearson

United States District Judge