Petition for Writ of Certiorari — Paul Duriso, Petitioner v. West Gulf Maritime Association, et al.

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Case: 17-40938

Document: 00514701623 Page: 1 Date Filed: 10/29/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 17-40938

Summary Calendar

October 29, 2018

Lyle W. Cayce

Clerk

PAUL DURISO,

Plaintiff Appellant

WEST GULF MARITIME ASSOCIATION; INTERNATIONAL

LONGSHOREMEN'S ASSOCIATION SOUTH ATLANTIC AND GULF

COAST DISTRICT; LOCAL 21, INTERNATIONAL LONGSHOREMEN'S

ASSOCIATION,

Defendants Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:15-CV-411

Before BENAVIDES, HIGGINSON, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Paul Duriso appeals from the granting of summary judgment denying

his claims against the International Longshoremen's Union (ILA), ILA

Local 21, and the Western Gulf Maritime Association (WGMA) representing

his employer. We review de novo the district court's grant of summary

Pursuant to 5TH dR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

Case: 17-40938

Document: 00514701623 Page: 2 Date Filed: 10/29/2018

No. 17-40938

judgment. Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994). "A motion

for summary judgment is properly granted when competent evidence

establishes the absence of a genuine issue of material fact and that the movant

is entitled to judgment as a matter of law." Id.; see FED. R. Civ. P. 56(a). To

overcome summary judgment, Duriso must offer specific facts showing a

genuinely contested material issue, and conclusional allegations,

unsubstantiated assertions, or only a scintilla of evidence will not suffice. See

Hemphill v. State Farm Mut. Auto. Ins. Co., 805 F.3d 535, 538 (5th Cir. 2015).

In this "hybrid" action under § 301 of the Labor Management Relations

Act, 29 U.S.C. § 185, Duriso sues the WGMA for breach of the collective

bargaining agreement (CBA), and the ILA and Local 21 for breaching the duty

of fairly representing him in his grievance against the WGMA. See DelCostello

v. International Bhd. Of Teamsters, 462 U.S. 151, 164-65 (1983). Under

DelCostello, Duriso is "bound by the results of the grievance proceeding unless

he" proves both that the employer violated the CBA and that the union failed

to represent him fairly. Thomas, 39 F.3d at 622. Thus, Duriso must show a

breach of the duty of fair representation by the ILA and Local 21 in order to

recover against any defendant. See id. To do that, he must ultimately provide

"substantial evidence" that the behavior of the ILA or Local 21 was arbitrary,

discriminatory, or in bad faith. See Freeman v. O'Neal Steel, Inc., 609 F.3d

1123, 1127-28 (5th Cir. 1980); Landry v. Cooper/T. Smith Stevedoring Co.,

Inc., 880 F.2d 846, 852 (5th Cir. 1989).

Duriso has failed to show a genuine issue of material fact with regard to

whether the ILA or Local 21 acted with the requisite bad faith by declining to

pursue arbitration of his grievance. See Hemphill, 805 F.3d at 538; Landry,

880 F.2d at 852. Accordingly, both of his claims must fail. See DelCostello, 462

U.S. at 164-65. The judgment is AFFIRMED.

Case: 17-40938

Document: 00514701651 Page: 1 Date Filed: 10/29/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 17-40938

Summary Calendar

October 29, 2018

D.C. Docket No. 1:15-CV-411

Lyle W. Cayce

Clerk

PAUL DURISO,

Plaintiff Appellant

WEST GULF MARITIME ASSOCIATION; INTERNATIONAL

LONGSHOREMEN'S ASSOCIATION SOUTH ATLANTIC AND GULF

COAST DISTRICT; LOCAL 21, INTERNATIONAL LONGSHOREMEN'S

ASSOCIATION,

Defendants Appellees

Appeal from the United States District Court for the

Eastern District of Texas

Before BENAVIDES, HIGGINSON, and ENGELHARDT, Circuit Judges.

JUDGMENT

This cause was considered on the record on appeal and the briefs on file.

It is ordered and adjudged that the judgment of the District Court is

affirmed.

IT IS FURTHER ORDERED that plaintiff-appellant pay to defendantsappellees the costs on appeal to be taxed by the Clerk of this Court.

4?P

Case: 17-40938

Document: 00514776430 Page: 1 Date Filed: 12/28/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-40938

PAUL DURISO,

Plaintiff Appellant

WEST GULF MARITIME ASSOCIATION; INTERNATIONAL

LONGSHOREMEN'S ASSOCIATION SOUTH ATLANTIC AND GULF

COAST DISTRICT; LOCAL 21, INTERNATIONAL LONGSHOREMEN'S

ASSOCIATION,

Defendants Appellees

Appeal from the United States District Court

for the Eastern District of Texas

ON PETITION FOR REHEARING AND REHEARING EN I3ANC

(Opinion 10/29/2018, 5 Cir.,

_________

F.3d

Before BENAVIDES, HIGGINSON, and ENGELHARDT, Circuit Judges.

•PER CURIAM:

(The Petition for Rehearing is DENIED and no member of this panel nor

judge in regular active service on the court having requested that the

court be polled on Rehearing En Banc, (FED. R. APP. P. and 5TH Cm, R.

35) the Petition for Rehearing En Banc is also DENIED.

Case: 17-40938

Document: 00514776430 Page: 2 Date Filed: 12/28/2018

( )

The Petition for Rehearing is DENIED and the court having been polled

at the request of one of the members of the court and a majority of the

judges who are in regular active service and not disqualified not having

voted in favor, (FED. R. APP. P. and 5TH CIR. R. 35) the Petition for

Rehearing En Banc is also DENIED.

( )

A member of the court in active service having requested a poll on the

reconsideration of this cause en bane, and a majority of the judges in

active service and not disqualified not having voted in favor, Rehearing

En Banc is DENIED.

ENTERED FOR THE COURT:

Case 1:15-cv-00411-MAC Document 42 Filed 08/11/17 Page 1 of 20 PagelD #: 751

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

PAUL DURISO and DONALD HAGGERTY, §

Plaintiffs,

versus

WEST GULF MARITIME ASSOCIATION,

INTERNATIONAL LONGSHOREMEN'S

ASSOCIATION LOCAL #21, and

INTERNATIONAL LONGSHOREMEN'S

ASSOCIATION SOUTH ATLANTIC AND

GULF COAST DISTRICT,

Defendants.

CIVIL ACTION NO. 1:15-CV-411

MEMORANDUM AND ORDER

Pending before the court are Defendants West Gulf Maritime Association ("WGMA"),

International Longshoremen's Association Local #21 ("Local #21"), and International

Longshoremen's Association South Atlantic and Gulf Coast District's ("ILA") Motion for

Summary Judgment (#28) in which they assert that they are entitled to summary judgment as to

Plaintiffs Paul Duriso ("Duriso") and Donald Ray Haggerty' s ("Haggerty") claims for breach of

the collective bargaining agreement and breach of the duty of fair representation. Having

considered the pending motion, the parties' submissions,' and the applicable law, the court is of

the opinion that summary judgment is warranted.

Defendant WGMA filed the instant motion on behalf of all defendants collectively.

Case 1:15-cv-00411-MAC Document 42 Filed 08/11/17 Page 2 of 20 PagelD #: 752

Background

Duriso and Haggerty were both employed as longshoremen at the Port of Beaumont,

Texas. Duriso worked in a supervisory capacity as a member of Local #21, while Haggerty had

no supervisory rank. Rhonda Stelly ("Stelly"), another longshoreman working out of the Local

#21 hiring hail, filed two separate complaints alleging that she had been sexually harassed, one

against Haggerty on or around April 22, 2015, and another against Duriso on or around May 6,

2015.

Stelly claimed that Duriso repeatedly demanded sexual favors from her in exchange for

providing certain paid work assignments. According to Stelly, Duriso '5 overtures initially began

as offers to provide work assignments for both herself and her son in exchange for sexual favors,

but eventually took on the character of outright demands. Stelly further alleged that when she

refused, Duriso became visibly angry in public, yelled loudly, and, on several occasions,

attempted to use his authority to prevent her from obtaining work assignments in the hiring hail,

including at least one instance that was captured on video. She also reported that Duriso attempted

to prevent her from obtaining seniority status in the course of denying her work assignments and

that, after she obtained seniority status, Duriso taunted her with threats of termination. Stelly

claimed that she was not the only female longshoreman, subjected to such advances and that her

female counterparts were regularly required to submit to Duriso's advances in exchange for work

assignments, a practice referred to cryptically as "playing ball." Additionally, Stelly asserted that

her sister, another female longshoreman at the Port of Beaumont, has been subjected to hostility

from female coworkers sexually involved with Duriso as a result of Stelly's resistance.

Case 1:15-cv-00411-MAC Document 42 Filed 08/11/17 Page 3 of 20 PagelD #: 753

With respect to Haggerty, Stelly alleged that he repeatedly made sexual advances toward

her, uttered numerous sexually explicit comments around her, and attempted to show her videos

taken of himself during sexual intercourse. Stelly claimed that Haggerty s sexual advances, like

Duriso's, initially revolved around her son's employment at the Port of Beaumont. For instance,

Haggerty referred to himself as her children's "step daddy" when in their presence. According

to Stelly, Haggerty characterized her rejections of his sexual advances as a "lover's quarrel."

Further, Haggerty repeatedly offered to take Stelly to dinner and urged her to let him "see what

is under [her] work clothes." Haggerty also informed Stelly that he could make her "holler and

scream," presumably during a sexual encounter, and asked her to let him follow her into the

women's restroom so he could "help her wipe." Additionally, Stelly complained that she was told

by another worker that Haggerty had offered him payment in exchange for a fabricated statement

in support of a frivolous work-related harassment complaint Haggerty planned to file against

Stelly. When Haggerty filed the complaint in 2014, Stelly claimed that he offered to retract it in

exchange for sexual favors.2 Upon Stelly's refusal, he informed her that he and Duriso "would

have sex with her before it is all said and done."

Pursuant to the Deep Sea Bargaining Agreement ("the Agreement" or "DSBA," attached

as Plaintiffs' Exhibit 2), Stelly' s complaints were processed by WGMA, a non-profit organization

that acts as an administrative and logistical intermediary between ILA local chapters, including

Haggerty claimed that Stelly had approached him in an aggressive manner on several occasions

and made derogatory remarks about him to other members of Local #21. According to Chelsea Egmon

("Egmon"), WGMA's Vice-President for Labor Relations, Haggerty's complaint was investigated, but no

action was taken by WGMA because the complaint was found to not be credible. Haggerty's complaint

against Stelly was also discussed during an Executive Board Meeting of Local #21 in late 2014, but no

further action was taken by Local #21. No other specific information about the events or details giving

rise to this complaint are before the court.

Case 1:15-cv-00411-MAC Document 42 Filed 08/11/17 Page 4 of 20 PagelD #: 754

Local #21, and multiple maritime employers at ports from Corpus Christi, Texas, to Lake Charles,

Louisiana, including the Port of Beaumont. WGMA Compliance Officer Jennifer Stein ("Stein")

and officials from ILA jointly conducted an investigation, determined that Duriso's and Haggerty's

employment in the longshore industry should be permanently suspended, and notified Local #21

President Mark Bridges ("Bridges") of its determination in writing on June 2, 2015. Local #21

immediately contested the decision, and the parties scheduled two grievance hearings—one for

Duriso and another for Haggerty—for June 5, 2015, pursuant to Step 1 of the grievance and

arbitration procedure outlined in the Agreement.

See DSBA, 121-30. Ultimately, both

suspensions were upheld in the Step 1 hearings. Local #21 then appealed the decision to an

appeals committee pursuant to Step 2 of the Agreement. That committee affirmed both

suspensions in a decision rendered on August 4, 2015. Although the Agreement afforded Local

#21 the right to appeal the decision a third time and demand a Step 3 arbitration proceeding, Local

#21 took no further action.

Nonetheless, on October 5, 2015, Duriso and Haggerty brought two claims against Local

#21, ILA, and WGMA in state court. Plaintiffs claim first that Bridges,3 Local #21, and ILA

acted in bad faith by failing to investigate the matter fully and failing to request a Step 3 arbitration

hearing. Second, Plaintiffs allege that WGMA breached the Agreement by permanently

suspending their employment. Shortly thereafter, on October 19, 2015, Defendants removed the

case to this court on the basis of federal question jurisdiction and preemption.

See 28

U.S.C. § 1331; 29 U.S.C. § 185. ILA, WGMA, and Local #21 each filed answers on October

29, November 4, and November 12, 2015, respectively.

Bridges is not named as a defendant in this case.

Case 1:15-cv-00411-MAC Document 42 Filed 08/11/17 Page 5 of 20 PagelD #: 755

On May 5, 2016, Plaintiffs filed a motion for partial summary judgment, arguing that the

Step 2 appeals committee's affirmation of the permanent suspensions was a breach of the

Agreement and that Stelly's underlying sexual harassment claims were not legally actionable. On

July 5, 2016, this court issued a Memorandum and Order (#20) denying Plaintiffs' partial motion

for summary judgment. Specifically, the court found that Plaintiffs had failed to establish that

Defendants breached the Agreement. Doc. No. 20. Further, the court found that Defendants had

raised a genuine dispute of material fact regarding Stelly's potential Title VII claims, although the

court questioned the relevance of this issue with respect to Plaintiffs' asserted claims. Id.

Defendants filed the instant motion on May 29, 2017, asserting that they are entitled to

summary judgment because there are no genuine disputes of material fact concerning Plaintiffs'

claims. Defendants request that the court enter a take nothing judgment as to Plaintiffs' claims

for breach of the Agreement and breach of the duty of fair representation. Plaintiffs respond that

there are genuine disputes of material fact as to both claims.

II.

Analysis

Summary Judgment Standard

A party may move for summary judgment without regard to whether the movant is a

claimant or a defending party. See Apache Corp. v. W&T Offshore, Inc., 626 F. 3d 789, 794 (5th

Cir. 2010); CQ, Inc. v. TXU Mining Co., L.P., 565 F.3d 268, 272 (5th Cir. 2009). Rule 56(a)

of the Federal Rules of Civil Procedure provides that summary judgment shall be granted "if the

movant shows 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); accord Hefren v. McDermott, Inc., 820

F. 3d 767, 771 (5th Cir. 2016). The parties seeking summary judgment bear the initial burden of

Case 1:15-cv-00411-MAC Document 42 Filed 08/11/17 Page 6 of 20 PagelD #: 756

informing the court of the basis for their motion and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

which they believe demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986); Davis v. Fort Bend Cty., 765 F.3d 480, 484 (5th Cir. 2014),

cert. denied, 135 S. Ct. 2804 (2015); Tech. Automation Servs. Corp. v. Liberty Surplus Ins.

Corp., 673 F.3d 399, 407 (5th Cir. 2012).

"A fact issue is material if its resolution could affect the outcome of the action." Hemphill

v. State Farm Mut. Auto. Ins. Co., 805 F.3d 535, 538 (5th Cir. 2015), cert. denied, 136 S. Ct.

1715 (2016); Tiblier v. Diabal, 743 F.3d 1004, 1007 (5th Cir. 2014); accord Poole v. City of

Shreveport, 691 F.3d 624, 627 (5th Cir. 2012); Cooper Tire & Rubber Co. v. Farese, 423 F.3d

446, 454 (5th Cir. 2005). "Factual disputes that are irrelevant or unnecessary will not be

counted." Tiblier, 743 F.3d at 1007 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). "An issue is 'genuine' if it is real and substantial, as opposed to merely formal,

pretended, or a sham." Hudspeth v. City of Shreveport, 270 F. App'x 332, 334 (5th Cir. 2008)

(quoting Bazan ex rel. Bazan v. Hidalgo Cly., 246 F.3d 481, 489 (5th Cir. 2001)). Thus, a

genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party." Hefren, 820 F.3d at 771 (quoting Anderson, 477 U.S. at 248);

Tiblier, 743 F.3d at 1007; accord Haverda v. Hays Cly., 723 F.3d 586, 591 (5th Cir. 2013). The

moving parties, however, "need not negate the elements of the nonmovant[s'] case." Pioneer

Expl., L.L. C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014); Boyle v. Allstate Ins. Co.,

615 F.3d 350, 355 (5th Cir. 2010); Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.

2005) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

Case 1:15-cv-00411-MAC Document 42 Filed 08/11/17 Page 7 of 20 PagelD #: 757

Once a proper motion has been made, the nonmoving parties may not rest upon mere

allegations or denials in the pleadings but must present affirmative evidence, setting forth specific

facts, to demonstrate the existence of a genuine issue for trial. Celotex Corp., 477 U.S. at 322

n.3; see Beard v. Banks, 548 U.S. 521, 529 (2006) (quoting FED. R. CIV. P. 56(e)); Distribuidora

Mari Jose, S.A. de C. V. v. Transmaritime, Inc., 738 F.3d 703, 706 (5th Cir. 2013). The court

must "review the record 'taken as a whole." Black v. Pan Am. Labs., LLC, 646 F.3d 254, 273

(5th Cir. 2011) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)

(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986))); see City

of Alexandria v. Brown, 740 F.3d 339, 350 (5th Cir. 2014). All the evidence must be construed

in the light most favorable to the nonmoving party, and the court will not weigh the evidence or

evaluate its credibility. Reeves, 530 U.S. at 150; Tiblier, 743 F.3d at 1007; see Hefren, 820 F.3d

at 771. The evidence of the nonmovants is to be believed, with all justifiable inferences drawn

and all reasonable doubts resolved in their favor. Tolan v. Cotton,

U.S.

134 S. Ct.

1861, 1863 (2014) (citing Anderson, 477 U.S. at 255); Hemphill, 805 F. 3d at 538; Pioneer Expl.,

L.L. C., 767 F. 3d at 511. The evidence is construed "in favor of the nonmoving party, but only

where there is an actual controversy, that is, when both parties have submitted evidence of

contradictory facts." Spring St. Partners-IV, L.P. v. Lam, 730 F.3d 427, 435 (5th Cir. 2013)

(quoting Boudreaux, 402 F.3d at 540).

Nevertheless, "only reasonable inferences in favor of the nonmoving party can be drawn

from the evidence." Mills v. Warner-Lambert Co., 581 F. Supp. 2d 772, 779 (E. D. Tex. 2008)

(citing Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 469 n.14 (1992), cert.

denied, 523 U.S. 1094 (1998)); accord Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172

Case 1:15-cv-00411-MAC Document 42 Filed 08/11/17 Page 8 of 20 PagelD #: 758

(5th Cir. 2012). "If the [nonmoving party's] theory is

senseless, no reasonable jury could

find in its favor, and summary judgment should be granted." Stearns Airport Equip. Co., Inc. v.

FMC Corp., 170 F.3d 518, 528 (5th Cir. 1999) (quoting Eastman Kodak Co., 504 U.S. at 46869); accord Shelter Mut. Ins. Co. v. Simmons, 543 F. Supp. 2d 582, 584-85 (S.D. Miss.), aff'd,

293 F. App'x 273 (5th Cir. 2008). "Summary judgment may not be thwarted by conclusional

allegations, unsupported assertions, or presentation of only a scintilla of evidence." Hemphill, 805

F.3d at 538 (citing McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012)); see Lujan v. Nat'l

Wildlife Fed'n, 497 U.S. 871, 888 (1990); accord Stauffer v. Gearhart, 741 F.3d 574, 581 (5th

Cir. 2014).

Summary judgment is mandated if the nonmovants fail to make a showing sufficient to

establish the existence of an element essential to their case on which they bear the burden of proof

at trial. Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corp., 477 U.S. at 322;

Tiblier, 743 F.3d at 1007; Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013). "[W]here the

nonmoving party fails to establish the existence of an element essential to that party's case, and

on which that party will bear the burden of proof at trial, no genuine issue of material fact can

exist." Apache Corp. v. W&T Offshore, Inc., 626 F.3d 789, 793 (5th Cir. 2010). In such a

situation, "[a] complete failure of proof concerning an essential element of the nonmoving party's

case necessarily renders all other facts immaterial' and 'mandates the entry of summary judgment'

for the moving party." United States ex rel. Farmer v. City of Houston, 523 F.3d 333, 337 (5th

Cir.), cert. denied, 555 U.S. 1012 (2008) (quoting Celotex Corp., 477 U.S. at 322-23).

Case 1:15-cv-00411-MAC Document 42 Filed 08/11/17 Page 9 of 20 PagelD #: 759

Labor Management Relations Act ("LMRA") Preemption

"Section 301 of the LMRA governs claims founded directly on rights created by collectivebargaining agreements, and also claims 'substantially dependent on analysis of a collectivebargaining agreement." Caterpillar Inc. v. Williams, 482 U.S. 386, 394 (1987) (quoting Elec.

Workers v. Hechler, 481 U.S. 851, 859 n.3 (1987)). Section 301 states:

Suits for violation of contracts between an employer and a labor organization

representing employees in an industry affecting commerce as defined in this Act,

or between any such labor organizations, may be brought in any district court of

the United States having jurisdiction of the parties, without respect to the amount

in controversy or without regard to the citizenship of the parties.

Textron Lycoming Reciprocating Engine Div., AVCO Corp. v. United Auto., Aerospace & Agric.

Implement Workers of Am., Int'l Union, 523 U.S. 653, 656 (1998) (quoting 29 U.S.C. § 185(a));

see Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 403 (1988); Allis-Chalmers Corp.

v. Lueck, 471 U.S. 202, 209 (1985); Houston Ref., L.P. v. United Steel, Paper & Forestry,

Rubber, Mfg., 765 F.3d 396, 401 (5th Cir. 2014). "Any state law cause of action for violation of

a collective-bargaining agreement is entirely displaced by federal law under section 301."

Medrano v. Excel Corp., 985 F. 2d 230, 232 (5th Cir.), cert. denied, 510 U.S. 822 (1993) (citing

United Steelworkers of Am., AFL-CIO-CLC v. Rawson, 495 U.S. 362, 368 (1990)); accord

Ramirez v. Lockheed Martin Corp., No. 4:04-CV-518-A, 2005 WL 1017995, at *2 (N.D. Tex.

Apr. 28, 2005).

Section 301 of the LMRA provides the requisite jurisdiction and exclusive remedy for an

individual employee covered by a collective-bargaining agreement ("CBA") between the

individual's employer and the union representing the employees, who asserts a violation of such

agreement. Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994); Karnuth v. S. Cent. United

Case 1:15-cv-00411-MAC Document 42 Filed 08/11/17 Page 10 of 20 PagelD #: 760

Food & Commercial Workers Union, No. Civ. A. 399CV0687-D, 1999 WL 354236, at *2 (N.D.

Tex. May 28, 1999). Thus, an individual employee alleging breach of a CBA may file a lawsuit

against his employer under § 301. Waldron v. Boeing Co., 388 F.3d 591, 593 (8th Cir. 2004)

(citing Smith v. Evening News Assn, 371 U.S. 195, 200 (1962)); Smith v. Kerrville Bus Co., Inc.,

748 F.2d 1049, 1052 (5th Cir. 1984); Toney v. IC Corp., No. 4:05CV000929 JMM, 2006 WL

3759528, at *3 (E.D. Ark. Dec. 18, 2006). Under § 301(a), "[s]uits for violation of contracts"

are not suits declaring a contract invalid, but suits that claim a contract has been violated. Textron

Lycoming Reciprocating Engine Div., AVCO Corp., 523 U.S. at 657 (quoting 29 U.S.C.

§ 185(a)).

Section 301 "expresses a federal policy that the substantive law to apply in § 301 cases 'is

federal law, which the courts must fashion from the policy of our national labor laws." AllisChalmers Corp., 471 U.S. at 209 (quoting Textile Workers Union of Am. v. Lincoln Mills, 353

U.S. 448, 456 (1957)); accord Int'l Assn of Machinists & Aerospace Workers Local Lodge 2121

AFL-CIO v. Goodrich Corp., 410 F.3d 204, 213 (5th Cir. 2005). As the Supreme Court of the

United States noted in Allis-Chalmers Corp., § 301 is understood as a congressional mandate to

the federal courts to develop a body of federal common law to address disputes arising out of labor

contracts. 471 U.S. at 209; see Lingle, 486 U.S. at 403; Labor Relations Div. of Constr. Indus.

of Mass., Inc. v. Healey, 844 F.3d 318, 323 (1st Cir. 2016). The creation of such federal

common law acts to ensure uniform interpretation of CBAs, thus promoting the peaceable,

consistent resolution of labor-management disputes. Lingle, 486 U.S. at 404.

Case 1:15-cv-00411-MAC Document 42 Filed 08/11/17 Page 11 of 20 PagelD #: 761

Plaintiffs' Claims under § 301(a) of the Labor Management Relations Act

When a collective bargaining agreement establishes a mandatory, binding grievance

procedure and gives the union the exclusive right to pursue claims on behalf of aggrieved

employees, the results obtained through the process are normally conclusive of the employees'

rights under the agreement. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 568 (1976); see

Vaca v. Sipes, 386 U.S. 171, 185 (1967); United Steelworkers v. Enterprise Wheel & Car Corp.,

363 U.S. 593, 599 (1960); Mitchell v. Cont'lAirlines, Inc., 481 F. 3d 225, 232 (5th Cir.), cert.

denied, 552 U.S. 821 (2007). "The rule of judicial deference to such finality clauses is in part

designed to encourage grievance arbitration and decentralized, informal settlement of industrial

disputes." Sear v. Cadillac Auto. Co. of Boston, 654 F.2d 4, 7 (1st Cir. 1981) (citing Enterprise

Wheel & Car Corp., 363 U.S. at 596). "The rule is important for 'grievance machinery under

a collective bargaining agreement is at the very heart of the system of industrial selfgovernment." Id. (quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S.

574, 578 (1960)). Therefore, an aggrieved employee, whose employment is governed by the

terms of such an agreement, normally lacks standing to initiate grievance procedures

independently, to sue for breach of the collective bargaining agreement, or to attack the results of

the grievance process in court. Id.; see Mitchell, 481 F. 3d at 232; Acuff v. United Paperinakers

& Paperworkers, 404 F.2d 169, 171 (5th Cir. 1968), cert. denied, 394 U.S. 987 (1969).

These rules, however, are not without exception. In DelCostello v. Teamsters, the

Supreme Court created an exception for an employee whose union breached its duty of fair

representation by arbitrarily refusing to pursue a claim through the grievance process or by doing

so in a perfunctory or otherwise inadequate manner. 462 U.S. 151, 163-64 (1983); Vaca, 386

Case 1:15-cv-00411-MAC Document 42 Filed 08/11/17 Page 12 of 20 PagelD #: 762

U.S. at 190. In such a situation, not only may a union member sue the employer for a violation

of the collective bargaining agreement, but he may also sue the union for breach of the union's

duty of fair representation. Reed v. United Transp. Union, 488 U.S. 319, 328 (1989); Vaca, 386

U.S. at 190; Thomas v. LTV Corp., 39 F.3d 611, 621 (5th Cir. 1994); Wood v. Houston Belt &

Terminal Ry., 958 F.2d 95, 97 (5th Cir. 1992); Trial v. Atchison, Topeka & Santa Fe Ry. Co.,

896 F.2d 120, 123 (5th Cir. 1990). Such claims are termed "hybrid actions" because they consist

of a claim that a union has breached its duty of fair representation coupled with a claim that the

employer has violated a collective bargaining agreement. Thomas, 39 F.3d at 621 (citing Reed,

488 U.S. at 328; DelCostello, 462 U.S. at 164). Hybrid actions are authorized by § 301(a) of the

Labor Management Relations Act and are subject to the six-month statute of limitations set forth

in § 10(b) of the National Labor Relations Act. Reed, 488 U.S. at 328; DelCostello, 462 U.S. at

164; Barousse v. Paper Allied-Indus., Chem. & Energy Workers Int'l Union, 265 F.3d 1059, at

*4 (5th Cir. 2001) (table decision); Wood, 958 F.2d at 97; Trial, 896 F.2d at 124; see also 29

U.S.C. §§ 160(b), 185. An employee may bring a "hybrid" claim against the employer, the

union, or both, "[y]et the two claims are inextricably interdependent." DelCostello, 462 U.S. at

164 (quoting United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 66 (198 1) (Stewart, J. concurring

in the judgment)); Roe v. Diamond, 519 F. App'x 752, 756-57 (3d Cir. 2013). In order to prevail

against either the employer or the union, the employee must prove that: (1) the union breached

its duty of fair representation and (2) the employer breached the collective bargaining agreement.

DelCostello, 462 U.S. at 164-65; see Gibson v. U.S. Postal Serv., 380 F.3d 886, 888 (5th Cir.

2004); Thomas, 39 F.3d at 621-22; Gutierrez v. United Foods, Inc., 11 F.3d 556, 559 (5th Cir.),

Case 1:15-cv-00411-MAC Document 42 Filed 08/11/17 Page 13 of 20 PagelD #: 763

cert. denied, 511 U.S. 1142 (1994); Daigle v. Gulf State Utils. Co., 794 F. 2d 974, 977 (5th Cir.),

cert. denied, 479 U.S. 1008 (1986).

The duty of fair representation requires that union officials represent all members fairly

in the enforcement of the collective bargaining agreement. Vaca, 386 U.S. at 177, 182 (the fair

representation requirement stands "as a bulwark to prevent arbitrary union conduct against

individuals stripped of traditional forms of redress by the provisions of federal labor law"); see

United Steelworkers v. Rawson, 495 U.S. 362, 374 (1990) (the "doctrine of fair representation is

an important check on the arbitrary exercise of union power"). The duty requires union

representatives to "serve the interests of all members without hostility or discrimination toward

any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary

conduct." Vaca, 386 U.S. at 177; see Air Line Pilots Assn Int'l v. O'Neill, 499 U.S. 65, 76

(1991); Simms v. Local 1752, Int'l Longshoremen Assn, 838 F.3d 613, 620 (5th Cir. 2016). A

union breaches its duty of fair representation "by acting in a 'discriminatory, dishonest, arbitrary,

or perfunctory manner." Gutierrez, 11 F. 3d at 559 n.8 (quoting DelCostello, 462 U.S. at 164);

see Vaca, 386 U.S. at 190. "[A] union's actions are arbitrary only if, in light of the factual and

legal landscape at the time of the union's actions, the union's behavior is so far outside a 'wide

range of reasonableness,'

as to be irrational." O'Neill, 499 U.S. at 67 (quoting Ford Motor

Co. v. Huffinan, 345 U.S. 330, 338 (1953)). In other words, "[t]he critical question is whether

the union's conduct was arbitrary, discriminatory, or in bad faith, so that it undermines the

fairness or integrity of the grievance process." Landry v. The Cooper/T. Smith Stevedoring Co.,

880 F.2d 846, 852 (5th Cir. 1989) (citing Hines, 424 U.S. at 567-69); accord Jaubert v.

Ohmstede, Ltd., 574 F. App'x 498, 501 (5th Cir. 2014).

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A union does not breach its duty of fair representation through "simple negligence" or a

"mistake in judgment." Landry, 880 F.2d at 852 (citing Vaca, 386 U.S. at 192-93); accord

Jaubert, 574 F. App'x at 502. Furthermore, a union does not breach its duty "when its conduct

in processing an employee's grievance [is] 'less than enthusiastic' and 'not perfect." Landry, 880

F.2d at 852 (citing Connally v. Transcon Lines, 583 F.2d 199, 202-03 (5th Cir. 1978)).

Moreover, "[a]n employee has no absolute right to have his grievance taken to arbitration, or to

an other level of the grievance process." Landry, 880 F.2d at 852 (citing Vaca, 386 U.S. at 191;

Turner v. Air Transp. Dispatchers Assn, 468 F.2d 297, 300(5th Cir. 1972)); accord Jaubert, 574

F. App'x at 502; Hammons v. Adams, 783 F.2d 597, 601 (5th Cir. 1986) (finding that "fair

representation does not require a union to carry every grievance to arbitration, for the union is

given substantial discretion to decide whether and how far a grievance should be pursued"); Ware

v. Donohoe, No. 4:13-cv-00980, 2015 WL 520876, at *5 (S.D. Tex. Feb. 9, 2015). The court's

substantive review of the union's decision is highly deferential, comparable to judicial review of

legislative decisions. O'Neill, 499 U.S. at 78; Ware, 2015 WL 520876, at 5.

Breach of the Duty of Fair Representation

Turning to the case at bar, Plaintiffs have made no showing that Local #21, or by extension

the ILA, acted in a discriminatory, dishonest, arbitrary, or perfunctory manner in the grievance

or arbitration process. Plaintiffs rely upon the opinions of James Edward Eli ("Eli") and Joseph

Egland ("Egland") to argue that a genuine dispute of material fact exists that the union breached

its duty of fair representation. Eli, a former president of Local #21 who was present at both the

Step One and Step Two proceedings, opines that Bridges and Local #21 "mishandled" Stelly's

complaints against Plaintiffs because it did not resolve the complaints"in house"—i.e., through

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Local #21' s informal grievance procedures—and instead invoked the formal grievance procedure

under the Agreement.' Eli also contends that the union breached its duty of fair representation by

not invoking Step 3 and proceeding to arbitration. Like Eli, Egland, the president of Local #1316,

generally opines that Bridges and Local #21 treated Plaintiffs unfairly by allowing them to be

suspended from the industry. Egland also claims that Bridges somehow failed to protect Plaintiffs

by letting them be punished because Bridges does not personally like Duriso.5

In short, Plaintiffs' position, based Eli's and Egland's testimony at deposition and in their

affidavits, is that the union breached its duty of fair representation because it failed to invoke all

three steps of the grievance procedure as provided in the Agreement and that Bridges acted

unfairly toward Plaintiffs due to some type of personal animus. Plaintiffs' position is without

merit.

First, Eli's contention that the matter should have been handled "in house" appears to be

a matter of personal opinion, which is inconsistent with the parties' rights and obligations under

the plain language of the Agreement. See Doc. No. 38-3, pg. 3 (Master Contract, Plaintiffs'

Exhibit 3) ("The grievance and arbitration procedure is the exclusive remedy with respect to

s statement that "[t]o the best of [his] knowledge, the union never acted on Donald Haggerty 's

complaint" against Stelly appears to be incorrect. Egmon stated that WGMA did conduct an investigation

with respect to Haggerty's complaint and found that the complaint was not credible. Further, as Eli

himself acknowledges, the issue was discussed during an Executive Board Meeting of Local #21 during

late 2014. In any event, WGMA's handling of Flaggerty's prior complaint against Stelly is irrelevant to

the issue before the court.

Egland also suspects that Defendants' motive in punishing Plaintiffs was to reduce the

effectiveness of Local #21. Nevertheless, this opinion is largely speculative, conclusory, and devoid of

factual support. Thus, it is insufficient to create a genuine dispute of material fact. See Turner v. Baylor

Richardson Med. Or., 476 F.3d 337, 345 (5th Cir. 2007) ("Conclusory statements are not competent

evidence to defeat summary judgment."); accord First Colony Life Ins. v. Sanford, 555 F. 3d 177, 181 (5th

Cir. 2009); Eicken v. USAA Fed. Say. Bank, 498 F. Supp. 2d 954, 961 (S.D. Tex. 2007).

Case 1:15-cv-00411-MAC Document 42 Filed 08/11/17 Page 16 of 20 PagelD #: 766

disputes arising between the union and any person working under the Agreement and [WGMA]

and any employee.").' Indeed, both Eli and Egland acknowledged that the grievance process

regarding complaints of sexual harassment and discrimination was modified in October 2006,

which provided that all complaints of sexual harassment or discrimination would be received and

investigated by a third party and that the new process would replace any prior procedures or local

union hall processes. See Doc. No. 28-4, pgs. 22-26.

Second, as noted above, a union is under no absolute duty to appeal an adverse

employment decision to arbitration or to any other level of the grievance process. See, e.g.,

Jaubert, 574 F. App'x at 502; Landry, 880 F.2d at 852. Here, the terms of the Agreement

explicitly gives the local unions complete discretion in management of the grievance process. See

Ware, 2015 WL 520876, at *5 (stating that a union "retains significant discretion when processing

grievances for its members") (citing Landry, 800 F. 2d at 852). Although the union did not appeal

the Step 2 decision to arbitration, the union requested two of three available grievance options on

behalf of Plaintiffs.

Further, on September 3, 2015, the parties discussed the potential for further pursuit of the

grievances and the issues surrounding Step 3 (arbitration) with the Executive Board of Local #21.

At that time, Bridges explained to Duriso that, contrary to Duriso's belief, the union was under

no mandatory duty of moving to Step 3. Further, Bridges informed Duriso that he had a fiduciary

responsibility to let the local members know of impending expenses that could be incurred and

how they could affect the local union. Ultimately, the Executive Board voted 6 to 1 not to move

forward to Step 3 on behalf of Plaintiffs. Bridges then took an additional step and called a Special

Plaintiffs' Exhibit 3 is a "Final Master Contract" dated April 3, 2013, which is part of the

Agreement.

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Meeting with the body of Local #21 to vote on the issue, as well. The majority of the members

of Local #21 voted not to invoke Step 3. Therefore, the union did not act irrationally or

unreasonably by not invoking Step 3 and pursuing arbitration after discussing the issues and taking

two separate votes. See Landry, 880 F.2d at 852.

Moreover, at deposition, Eli acknowledged that Local #21 was not required to invoke Step

3 based on the terms of the Agreement, although he states that in his personal opinion the president

of Local #21 should always insist on Step 3. Nevertheless, Eli stated that during his time as Local

#21 president there were multiple Step 2 decisions with which he disagreed that were not taken

to arbitration by Local #21. Thus, Plaintiffs have failed to show that the union acted irrationally

or unreasonably by declining to advance the grievance to arbitration in view of the Agreement's

vesting the union with complete discretion in the grievance process as well as the previous findings

at Steps 1 and 2. See O'Neill, 499 U.S. at 67 (quoting Ford Motor Co., 345 U.S. at 338) ("[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,'

to be irrational."). Accordingly, Plaintiffs have failed to demonstrate a genuine dispute of

material fact as to breach of the duty of fair representation, an essential element of their § 301

claims, and summary judgment is mandated.'

With respect to Duriso's unsworn letter (#38-14), in which he opines on the legal and factual

issues of this case, it is well settled that unsworn statements do not constitute competent summary judgment

evidence. See Smith v. Consol. Recreation & Cmty. Ctr., 131 F. App'x 988, 989 (5th Cir. 2005), cert.

denied, 547 U.S. 1040 (2006) (recognizing that unsworn statements are incompetent summary judgment

evidence); Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 515 (5th Cir. 2001) (finding

that an unsworn statement is not competent summary judgment evidence and therefore cannot raise an

inference of discrimination). Thus, Duriso's letter is not proper summary judgment evidence and will not

be considered by this court.

Case 1:15-cv-00411-MAC Document 42 Filed 08/11/17 Page 18 of 20 PagelD #: 768

Breach of the Agreement

"The 'indispensable predicate' for a section 301 action against an employer, based on a

violation of a collective-bargaining agreement, is the union's breach of its duty of fair

representation." Thomas, 39 F. 3d at 621-22; see Williams v. AT&T Inc., 356 F. App'x 761, 768

(5th Cir. 2009); Gutierrez, 11 F. 3d at 559 n.8; Landry v. Air Line Pilots Assn Int'l, 901 F. 2d

404, 411 n.4 (5th Cir.), cert. denied, 498 U.S. 895 (1990); Nelson, 1999 WL 47250, at *7

Because Plaintiffs have not prevailed on their fair representation claim against Local #21 and the

ILA, their claims that Defendants breached the collective bargaining agreement must fail.

In any event, WGMA acted within the terms of the Agreement by imposing permanent

suspensions on Duriso and Haggerty from the industry for sexual harassment! In short, the

Agreement requires the parties to comply with Title VII. See Doc. No. 38-3, pg. 8; see also

DSBA at 6, 8. Further, the Agreement was modified in October 2006 to prohibit sexual

harassment explicitly. Doc. No. 28-4, pgs. 22-26.

Here, Stelly reported actionable claims of sexual harassment by Duriso and Haggerty to

Local #21 and WGMA. As part of the investigation, WGMA uncovered other incidents of sexual

harassment and/or discrimination by both Duriso and Haggerty, which further necessitated

WGMA to act. Therefore, WGMA had a legal duty to investigate the past incidents of sexual

harassment and to take prompt remedial action to prevent similar conduct in the future based on

both the terms of the Agreement itself and Title VII.

The specific terms and provisions of the Agreement, as well as the standards for interpreting

collective bargaining agreements, were discussed extensively in the court's prior Memorandum and Order

(#20) and need not be restated in detail here.

Case 1:15-cv-00411-MAC Document 42 Filed 08/11/17 Page 19 of 20 PagelD #: 769

Further, contrary to Plaintiffs' position, the punishments administered did not breach the

terms of the Agreement. Specifically, the Agreement allows termination based on "just cause."

DSBA at 6. Sexual harassment can certainly qualify as "just cause" for termination. See, e.g.,

Perez v. Horizon Lines, Inc., 804 F.3d 1, 10-11 (1st Cir. 2015); Stroehmann Bakeries, Inc. v.

Local 776, Int'l Bhd. of Teamsters, No. 91-5261, 1992 WL 12930538, 11 23-30 (3d Cir. June 29,

1992); Newsday, Inc. v. Long Island Typographical Union, No. 915, CWA, AFL-CIO, 915 F.2d

840, 845 (2d Cir. 1990); see also B- Way Corp. & Local Union No. 714, Sexual Harassment Letter

No. 1983, Lab. Arb. Awards 8216278 (C.C.H.), 2006 WL 8216278 (Mar. 14, 2006) (Goldstein,

Elliott H.); Carolina Tel. & Tel. Co. & CWA Greensboro, North Carolina, Sexual Harassment

Letter No. 1958, Lab. Arb. Awards 7210746 (C.C.H.), 2004 WL 7210746 (Feb. 17, 2004)

(Almenoff, Phyliss); IAMA W, Local 1569 & Hughes Bros., Inc., Lab. Arb. Awards 01-2 ARB

¶ 3967 (C.C.H.), 2000 WL 36699704 (Sept. 12, 2000) (King, Jr., F. Craig). Moreover,

Plaintiffs' own expert, Egland, acknowledged that longshoremen could be permanently suspended

under the terms of the Agreement for engaging in sexual harassment. Doc. No. 28-4, pgs. 18-19.

Indeed, as Egmon discusses in her affidavit, other workers covered by the Agreement have

received permanent suspensions for making threats of violence and engaging in harassment on the

job. Because Plaintiffs have failed to raise a genuine dispute of material fact as to breach of the

Agreement, summary judgment is warranted on Plaintiffs' § 301 claims.

III.

Conclusion

For the foregoing reasons, Defendants' Motion for Summary Judgment is GRANTED.

Plaintiffs have failed to raise a genuine dispute of material fact on either of the essential

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elements—breach of the duty of fair representation and breach of the Agreement—of their § 301

claims. Therefore, summary judgment is mandated. A separate final judgment will be issued.

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.