Petition for Writ of Certiorari — Thomas Schramm, Petitioner v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC, aka United Steel Workers, aka USW

Supreme Court briefJan 5, 2026

Ask Donna

What actually matters in this document.

Text

No. 25In the

Supreme Court of the United States

THOMAS SCHRAMM,

Petitioner,

UNITED STEEL, PAPER AND FORESTRY, RUBBER,

MANUFACTURING, ENERGY, ALLIED INDUSTRIAL

AND SERVICE WORKERS INTERNATIONAL UNION,

AFL-CIO-CLC, AKA UNITED STEELWORKERS,

AKA USW,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Nicholas Roumel

Roumel Law

4101 Thornoaks Drive

Ann Arbor, MI 48104

(734) 645-7507

nick@roumel-law.com

Wendy E. Marcotte

Counsel of Record

Marcotte Law PLLC

102 West Washington Street,

Suite 217

Marquette, MI 49855

(906) 273-2261

wendy@marcottelaw.us

Counsel for Petitioner

388882

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

Petitioner Tom Schramm, a 30-year member of the

United Steelworkers union (USW), was fired based

on false rumors. Although wholly innocent, the USW

accepted the company’s version of events at face value

and did not interview Schramm, otherwise investigate,

or even file a step one grievance.

The Sixth Circuit affirmed summary judgment for the

USW, giving deference to the union’s decision in reliance

on Air Line Pilots v. O’Neill. Four other circuits follow

this approach; four do not (three are unclear).

The questions presented are:

Whether the same standards for determining

a breach of the duty of fair representation in

contract negotiations should be imposed upon

unions for individual discharge and grievance

cases.

Whether the duty of fair representation requires

a union’s decision-making to be based on objective

competent evidence, or whether the union may

decline to pursue a meritorious grievance for

unjust discharge based on subjective information

and belief.

PARTIES TO PROCEEDING

Petitioner Thomas Schramm was the appellant in

the court below. Respondent is the United Steel, Paper

and Forestry, Rubber, Manufacturing, Energy, Allied

Industrial, and Service Workers International Union,

AFL-CIO-CLC, (“United Steelworkers” or “USW”) and

was the appellee in the court below.

iii

STATEMENT OF RELATED CASES

District Court for the Western District of Michigan,

Northern Division, Thomas Schramm, plaintiff, v. Neenah

Paper Michigan Inc., and United Steel, Paper and Forestry,

Rubber, Manufacturing, Energy, Allied Industrial and

Service Workers International Union, AFL-CIO, CLC,

commonly known as the United Steel Workers or USW,

defendants, no. 2:22-cv-00047 (September 11, 2024)

Sixth Circuit Court of Appeals, Thomas Schramm,

Plaintiff-Appellant, v. Neenah Paper Michigan, Inc.,

Defendant, and United Steel, Paper and Forestry, Rubber,

Manufacturing, Energy, Allied Industrial and Service

Workers International Union, AFL-CIO-CLC, aka United

Steel Workers, aka USW, Defendant-Appellee, no. 24-1882

(October 6, 2025)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO PROCEEDING . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT OF RELATED CASES . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATUTORY PROVISION INVOLVED . . . . . . . . . . . 3

STATEMENT OF CASE . . . . . . . . . . . . . . . . . . . . . . . . . 4

Factual Background . . . . . . . . . . . . . . . . . . . . . . . 4

II. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . 9

A. District court proceedings . . . . . . . . . . . . . . 9

B. Sixth Circuit decision . . . . . . . . . . . . . . . . . .10

Table of Contents

Page

REASONS FOR GRANTING THE PETITION . . . . 11

The Sixth Circuit’s Application of O’Neill

Swallows Vaca Whole and Exposes a Deep

Circuit Split . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

A. This Court’s precedent recognizes a

heightened duty of fair representation in

discharge grievances . . . . . . . . . . . . . . . . . . 11

B. Many circuits wrongly apply O’Neill

to discharge grievances, resulting in a

4-5 split . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Four circuits apply the correct

standard . . . . . . . . . . . . . . . . . . . . . . . . . 20

2. Five circuits apply the incorrect

standard . . . . . . . . . . . . . . . . . . . . . . . . . 23

Three circuits do not have a

consistent standard . . . . . . . . . . . . . . . . 26

II. Review is Necessary to Protect Substantial

Worker Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

III. Deference to a Union’s Subjective Motives

and Intent Should Never Take Precedence

Over Vaca’s Objective Test or Traditional

Standards of Summary Judgment . . . . . . . . . . . 29

Table of Contents

Page

IV. This Case Presents an Ideal Vehicle for

Resolving the Tension Between Vaca and

O’Neill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

vii

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED OCTOBER 6, 2025 . . . . 1a

APPENDIX B — OPINION AND ORDER OF

T H E U N I T E D S TA T E S D I S T R I C T

COURT FOR THE WESTERN DISTRICT

OF MICHIGAN, NORTHERN DIVISION,

FILED SEPTEMBER 11, 2024 . . . . . . . . . . . . . . . . 22a

viii

TABLE OF CITED AUTHORITIES

Page

CASES:

Abilene Sheet Metal, Inc. v. N.L.R.B.,

619 F.2d 332 (5th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . 14

Air Line Pilots Assn v. O’Neill,

499 U.S. 65 (1991) . . . . . . . . . . . . . . 2, 9-11, 15-20, 22-29

Barrington v. Lockheed Martin,

257 F. App’x 153 (11th Cir. 2007) . . . . . . . . . . . . . . . . 27

Beavers v.

United Paperworkers Int’l Union, Loc. 1741

72 F.3d 97 (8th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . 25

Black v. Ryder/P.I.E. Nationwide, Inc.,

15 F.3d 573 (6th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . 14

Bodin v. Morton Salt, Inc.,

No. 6:22-CV-01863, 2023 WL 5761332

(W.D. La. Sept. 6, 2023) . . . . . . . . . . . . . . . . . . . . . . . 26

Bryan v. Am. Airlines, Inc.,

988 F.3d 68 (1st Cir. 2021) . . . . . . . . . . . . . . . . . . . . . . 24

Burns v. Salem Tube, Inc.,

381 F. App’x 178 (3d Cir. 2010) . . . . . . . . . . . . . . . . . . 24

Crampton v. Kroger Co.,

709 F. App’x 807 (6th Cir. 2017) . . . . . . . . . . . . . . . . . 25

Cited Authorities

Page

Cromwell v. United Steel Workers of Am.,

423 F. App’x 213 (3d Cir. 2011) . . . . . . . . . . . . . . . . . . 24

Cross v. United Auto Workers, Loc. 1762,

450 F.3d 844 (8th Cir. 2006) . . . . . . . . . . . . . . . . . . . . 25

DelCostello v. Int’l Bhd. of Teamsters,

462 U.S. 151 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Dement v. Richmond F. & P.R.R.,

845 F.2d 451 (4th Cir.1988) . . . . . . . . . . . . . . . . . . 20, 21

Detroit Edison Co. v. N.L.R.B.,

440 U.S. 301 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Driver v. U.S. Postal Service,

328 F.3d 863 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Eastex, Inc. v. N.L.R.B.,

437 U.S. 556 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Emmanuel v.

Int’l Bhd. of Teamsters, Loc. Union No. 25,

426 F.3d 416 (1st Cir. 2005) . . . . . . . . . . . . . . . 14, 23, 24

Fall River Dyeing & Finishing Corp. v.

N.L.R.B.,

482 U.S. 27 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Ford Motor Co. v. Huffman,

345 U.S. 330 (1953) . . . . . . . . . . . . . . . . . . . . 11, 16, 20-22

Cited Authorities

Page

Garcia v. Zenith Elec. Corp.,

58 F.3d 1171 (7th Cir.1995) . . . . . . . . . . . . . . . . . . . . . 14

Gehringer v. Atl. Detroit Diesel Allison LLC,

595 F. App’x 157 (3d Cir. 2014) . . . . . . . . . . . . . . . . . . 24

Green v. United Parcel Serv. Inc.,

No. CV 23-1082, 2025 WL 359282

(W.D. La. Jan. 30, 2025) . . . . . . . . . . . . . . . . . . . . . . . 26

Griffin v. Int’l Union, United Auto., Aerospace

& Agr. Implement Workers of Am., UAW,

469 F.2d 181 (4th Cir. 1972) . . . . . . . . . . . . . . . . . . . . . . 1

Harris v. Schwerman Trucking Co.,

668 F.2d 1204 (11th Cir. 1982) . . . . . . . . . . . . . . . . . . . 27

Hines v. Anchor Motor Freight Inc.,

421 U.S. 928 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Hines v. Anchor Motor Freight, Inc.,

424 U.S. 554 (1976) . . . . . . . . . . . . . . . . . . . . . 2, 12-15, 31

Humphrey v. Moore,

375 U.S. 335 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Int’l Union, United Auto., Aerospace & Agric.

Implement Workers of Am. v. Nat’l Lab. Rels. Bd.,

844 F.3d 590 (6th Cir. 2016) . . . . . . . . . . . . . . . . . . . . 25

Cited Authorities

Page

Jacoby v. NLRB,

233 F.3d 611 (D.C. Cir. 2000) . . . . . . . . . . . . . . . . 22, 23

Jaubert v. Ohmstede, Ltd.,

574 F. App’x 498 (5th Cir. 2014) . . . . . . . . . . . . . . . . . 26

Johnson v. Thomas Jefferson Univ. Hosp.,

112 F. App’x 838 (3d Cir. 2004) . . . . . . . . . . . . . . . . . . 24

Kallas v. AAF-McQuay,

No. CIV. A., 97-00010-H, 1998 WL 264750

(W.D. Va. May 5, 1998) . . . . . . . . . . . . . . . . . . . . . . . . 20

Klimek v. United Steel Workers Loc. 397,

618 F. App’x 77 (3d Cir. 2015) . . . . . . . . . . . . . . . . . . . 24

Lampkin v. Int’l Union, United Auto., Aerospace

& Agr. Implement Workers of Am. (UAW),

154 F.3d 1136 (10th Cir. 1998) . . . . . . . . . . . . . . . . . . . 27

Landry v. The Cooper/T. Smith Stevedoring Co.,

880 F.2d 846 (5th Cir. 1989) . . . . . . . . . . . . . . . . . . . . 26

Lowrey v. Exxon Corp.,

812 F. Supp. 644 (M.D. La. 1993),

aff’d, 19 F.3d 15 (5th Cir. 1994) . . . . . . . . . . . . . . . . . . 26

Lucas v. N.L.R.B.,

333 F.3d 927 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . 22

xii

Cited Authorities

Page

Marquez v. Screen Actors Guild, Inc.,

525 U.S. 33 (1998) . . . . . . . . . . . . . . . . . . . . . . . 15, 18, 19

Miller v. Gateway Transp. Co.,

616 F.2d 272 (7th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . 14

Miller v. U.S. Postal Serv.,

985 F.2d 9 (1st Cir. 1993) . . . . . . . . . . . . . . . . . . . . 23, 24

N.L.R.B. v. Action Automotive, Inc.,

469 U.S. 490 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

N.L.R.B. v. Curtin Matheson Scientific, Inc.,

494 U.S. 775 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Newport News Shipbuilding & Dry Dock Co. v.

N.L.R.B.,

631 F.2d 263 (4th Cir. 1980) . . . . . . . . . . . . . . . . . . . . 14

Olsen v. United Parcel Serv.,

892 F.2d 1290 (7th Cir. 1990) . . . . . . . . . . . . . . . . . . . 22

Pattern Makers’ League of N. Am., AFL-CIO v.

N.L.R.B.,

473 U.S. 95 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Pennco, Inc. v. N.L.R.B.,

459 U.S. 994 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

xiii

Cited Authorities

Page

Plumbers & Pipe Fitters Loc. Union No. 32 v.

N.L.R.B.,

50 F.3d 29 (D.C. Cir. 1995) . . . . . . . . . . . . . . . . . . . . . 23

Samuels v. Air Transp. Loc. 504,

992 F.2d 12 (2d Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . 28

Sanozky v. Int’l Ass’n of Machinists

& Aerospace Workers,

415 F.3d 279 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . 24, 28

Schmidt v. Int’l Bhd. of Elec. Workers, Loc. 949,

980 F.2d 1167 (8th Cir. 1992) . . . . . . . . . . . . . . . . . . . 25

Schultz v. Owens–Illinois, Inc.,

696 F.2d 505 (7th Cir.1982) . . . . . . . . . . . . . . . . . 20-22

Sears, Roebuck & Co. v. San Diego County

Dist. Council of Carpenters,

436 U.S. 180 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Smith v. United Parcel Serv., Inc.,

96 F.3d 1066 (8th Cir. 1996) . . . . . . . . . . . . . . . . . . . . 25

Steele v. Louisville & N.R. Co.,

323 U.S. 192 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Thomas v. United Parcel Serv., Inc.,

890 F.2d 909 (7th Cir. 1989) . . . . . . . . . . . . . . . . . . . . 22

xiv

Cited Authorities

Page

Tolan v. Cotton,

572 U.S. 650 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Vaca v. Sipes,

386 U.S. 171 (1967) . . . . . 1, 2, 11, 12, 15, 16, 21, 25, 26, 28-31

Walk v. P*I*E Nationwide, Inc.,

958 F.2d 1323 (6th Cir. 1992) . . . . . . . . . . . . . . . . . . . 14

Webb v. ABF Freight Sys., Inc.,

155 F.3d 1230 (10th Cir. 1998) . . . . . . . . . . . . . . . . . . 27

Young v. United Auto. Workers Lab. Emp.

& Training Corp.,

95 F.3d 992 (10th Cir. 1996) . . . . . . . . . . . . . . . . . . . . 26

STATUTES AND OTHER AUTHORITIES:

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

29 U.S.C. § 185 . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9, 12, 13

Gorman, Basic Text on Labor Law, Unionization,

and Collective Bargaining, Ch. 30, § 6 (West

Pub. Co., St. Paul 1976) . . . . . . . . . . . . . . . . . . . . . . . 14

Leffler, Piercing the Duty of Fair Representation:

The Dichotomy Between Negotiations and

Grievance Handling, 1979 U.Ill.L.F. 35 . . . . . . . . . 21

INTRODUCTION

There are over 14 million unionized workers in the

United States, almost ten percent of the workforce.1 These

workers rely on the “just cause” job security provided

by their collective bargaining agreements, and depend

on their unions to protect their job, “especially in the

handling of a grievance based on discharge – the industrial

equivalent of capital punishment.” Griffin v. Int’l Union,

United Auto., Aerospace & Agr. Implement Workers of

Am., UAW, 469 F.2d 181, 183 (4th Cir. 1972).

To protect these workers, unions are tasked with the

“duty of fair representation,” which serves as a “bulwark

to prevent arbitrary union conduct against individuals

stripped of traditional forms of redress by the provisions

of federal labor law.” Vaca v. Sipes, 386 U.S. 171, 182 (1967).

When processing grievances, this duty affirmatively

requires the union to “in good faith and in a nonarbitrary

manner, make decisions as to the merits of particular

grievances.” Id. at 191-94. Vaca thus contemplated a

reasoned decision-making process based on objective,

competent facts.

Here, however, the USW failed to engage in this

objective inquiry, accepting the Company’s version of

events at face value and as confirmation that rumors

coming from the floor were, in fact, valid. Schramm’s guilt

was all but assumed prior to his termination. Through this

lens, Schramm’s pleas of innocence and attempt to reason

1. https://www.bls.gov/news.release/union2.htm, accessed

12/30/25.

with the decision-maker were viewed as confirmation of

his guilt. And, when the company refused to produce

evidence it claimed to have, the union folded – not even

filing a step one grievance.

Instead of focusing on the union’s objective obligation

when reviewing discharge grievances, Vaca v. Sipes,

supra, which includes the affirmative duty to investigate

the merits of a particular grievance, Hines v. Anchor

Motor Freight, Inc., 424 U.S. 554 (1976), the Sixth Circuit

wrongfully relied on the more onerous test meant for

contract negotiation cases, Air Line Pilots Assn v. O’Neill,

499 U.S. 65 (1991), to defer to the union’s subjective

justifications.

The Sixth Circuit is not alone – there are (at least) four

other circuits that have similarly conflated the standards.

The test they employ is so daunting, few who run the

gauntlet are provided the opportunity to clear their name

in court, effectively providing complete immunity to both

the employer and the union alike.

This Court has not directly addressed the union’s

duty of fair representation in the context of a discharge

case in 50 years. Lower courts, as well as unions, require

guidance. There is no better case to provide it than this one,

where a long-time union employee was discharged based

on false rumors and harmed by his union, which neither

investigated nor pursued his meritorious grievance.

OPINIONS BELOW

The opinion of the court of appeals (App.1a–21a)

is unreported, as is the opinion of the district court

(App.22a-41a).

JURISDICTION

The judgment of the court of appeals was entered on

October 6, 2025. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

Labor Management Relations Act, 1947, § 301, 29

U.S.C. § 185,

S U I T S BY A N D AG A I N S T L A B O R

ORGANIZATIONS.

The relevant sections are:

(a) VENUE, AMOUNT, AND CITIZENSHIP

Suits for violation of contracts between an

employer and a labor organization representing

employees in an industry affecting commerce

as defined in this chapter, 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.

(b) RESPONSIBILITY FOR ACTS OF

AGENT, ENTITY FOR PURPOSES OF SUIT,

ENFORCEMENT OF MONEY JUDGMENTS

Any labor organization which represents

employees in an industry affecting commerce

as defined in this chapter and any employer

whose activities affect commerce as defined

in this chapter shall be bound by the acts of

its agents. Any such labor organization may

sue or be sued as an entity and in behalf of the

employees whom it represents in the courts of

the United States. Any money judgment against

a labor organization in a district court of the

United States shall be enforceable only against

the organization as an entity and against its

assets, and shall not be enforceable against any

individual member or his assets.

For the purposes of actions and proceedings

by or against labor organizations in the district

courts of the United States, district courts

shall be deemed to have jurisdiction of a labor

organization (1) in the district in which such

organization maintains its principal office, or

(2) in any district in which its duly authorized

officers or agents are engaged in representing

or acting for employee members.

STATEMENT OF CASE

Factual Background

In 1986, Thomas Schramm began working for Neenah

Paper Company in Munising, Michigan. App.2a. As of

2021, Schramm was the plant’s Fire Chief and a member

of the United Steelworker’s Union (USW), District 2,

Local 2-96, which represented the plant’s maintenance

workers. Id. By year end, he had been terminated twice.

First , he was terminated March 1, 2021, for

reporting a chemical spill to the Michigan Department

of Environment, Great Lakes, and Energy, allegedly

in violation of Neenah’s confidentiality policies. App.3a.

Consistent with the grievance procedures set forth in

the collective bargaining agreement, Local 2-96 filed a

grievance for unjust discharge on his behalf. Id.

The grievance was processed through the third step,

at which time Schramm filed suit in federal court, alleging

violation of Michigan’s Whistleblower Protection Act.

App.3a. The parties agreed to stay the litigation, pending

arbitration. App.4a. Prior to arbitration, Neenah agreed to

unconditionally reinstate Schramm with backpay effective

October 18, 2021. App.4a, 26a. Separately, Schramm and

Neenah settled their lawsuit and agreed that Schramm

would return to work January 3, 2022 instead of October

18, 2021, due to a previously scheduled vacation. App.26a,

30a.

Shor tly a f ter Neena h ag reed to Sch ra mm’s

reinstatement (mid-October), Local 2-96 union president

Josh Trader began to hear concerns from union members

about Schramm’s return to work. App.30a–31a. He alleged

that some employees heard that Schramm had a “hit list.”

App.31a. Trader said he heard “concerns” from “dozens of

people.” Id. Trader passed these concerns along to USW

international rep Chris Haddock and the mill’s human

resources manager Kathy Hill but declined to provide

the names of any of the people who allegedly approached

him. App.31a–32a. At his deposition, he could not recall

a single name of anyone with personal knowledge of any

threat or the hit list. R.1578-79. 2

2. All references to the district court record are noted as

R. Page numbers correspond to the electronic court filing (ECF)

Other union officials “heard similar rumors” from

employees at the plant. App.31a. Mike Peters was the

president of Local 2-87, which represented the production

employees at the plant. App.2a, 31a. Like Trader, Peters

said that mill employees approached him with concerns

about Schramm’s return to work. Peters recalled hearing

that Schramm had a “list” of five people in management

with whom he was unhappy. App.31a. Peters also passed

these concerns along to Haddock and Hill. App.31a-32a.

After Schramm was terminated, Greg Murk assumed his

role as fire chief. App. 31a. Like Peters, Murk recalled

hearing that Schramm had a “list” of five people in

management with whom he had issues. Id. Murk also

raised these concerns with Haddock and Hill. App.31a32a.

During his deposition, Haddock “recalled hearing

from Trader that dozens of people had expressed

concerns” about Schramm’s return to work. App.32a. He

also heard that Schramm had a “list of five people.” Id.

He confirmed that he was not provided with any names,

allegedly out of fear of repercussions. Id. Haddock heard

similar concerns from Peters and Murk. Id.; R.1379.

As of October 13, 2021, Hill became aware of a rumor

that “Schramm was ‘going around telling people he’s going

to [get]’ her and multiple other colleagues ‘fired when he

gets back to work.’” App.5a-6a. During that same time,

she heard concerns from Trader, Peters, and Murk about

what would happen when Schramm returned to work.

system PageID number. So, for example, R.1578-79 corresponds to

PageID.1578-79 in the district court’s ECF system.

App.32a. Hill responded by passing the concerns along

to mill manager Brian Houghton, and Neenah’s vice

president of human resources Monica Howe. Id.

Things escalated on November 17, 2021 when Trader

and Murk expressed concern to Hill over texts from

Schramm wondering if she was in the office. App.6a.

Unaware that Schramm was trying to get his backpay

and insurance issues straightened out, Hill emailed her

concerns to Howe and relayed that she had shared her

concerns with Haddock, who was “very supportive and

said [she] had to do what was right for [her] and the

Munising employees.” Id.

On December 21, 2021, Howe met with two other

members of Neenah’s corporate team and they made a

“business decision,” to terminate Schramm’s employment.

App.6a; R.1495-96.

Howe drafted a “Communication Plan” explaining

the reasons for Schramm’s termination. “The Plan cited

Schramm’s ‘[e]xcessive phone calls or text messages’ and

repeated ‘reference[s]’ to ‘a hit list with [five] names on

it,’ and it stated that Schramm’s fellow employees were

afraid of him and were ‘looking for places to hide.’”

App.6a-7a. Howe shared the plan with Haddock, who

“’supported the company’s decision,’” and emailed him

the Communication Plan. App.7a.

On December 28, 2022, days before his scheduled

return to work, Schramm was terminated for the second

time on a phone call with Haddock and Howe. App.33a.

When Howe informed Schramm that he was terminated,

Schramm was genuinely surprised, R.1842 , while

Haddock pretended to be. App.20a. Howe generally

followed the communication plan, mentioning excessive

calls and texts and “multiple comments and threats”

Schramm allegedly made regarding a “hit list”. App.7a.

Schramm confirmed he was angry with Hill and four other

employees but denied there was any hit list. Id. Toward

the end of the call, Schramm reiterated there was no “hit

list” and voiced his opinion that the only one at the mill who

was afraid of him was Hill because “the day I come back

to work that’s the day that … you know what, I’m [just]

going to let Chris deal with it because Chris knows what’s

in the wind when I come back to work for [K]athy Hill.”

App.8a; R.1857-58. Howe shared the plan with Haddock,

who “’supported the company’s decision,’” and emailed

him the Communication Plan. App.7a.

Immediately after, in a brief follow-up call with

Schramm, Haddock expressed concern about Schramm’s

“in the wind” comment, but assured Tom he knew he didn’t

mean anything by it and promised to file an information

request and a grievance. App.8a; R.1858. Haddock

also informed Trader that he would handle Schramm’s

grievance. App.8a.

Schramm received his termination letter on December

31, 2021 and immediately forwarded it to Haddock to

grieve. App.8a-9a. Under the CBA, the grievance deadline

was January 4, 2022. App.9a. On January 3, 2022, Haddock

emailed Howe an information request and to extend the

deadline. Howe denied both requests on January 5, one

day after the deadline. On receipt of this email, Haddock

notified Howe and Schramm that the union would not be

filing a grievance. Id.

II. Procedural History

District court proceedings

Schramm filed suit against his employer Neenah

Paper Michigan, Inc. (Neenah) March 2, 2022, and added

the USW as a party June 28, 2022. App.9a. His second

amended complaint asserts a hybrid claim under § 301

of the Labor Management Relations Act (“LMRA”)

against Neenah for breach of the collective bargaining

agreement and against the USW for breach of the duty

of fair representation. App.10a, 23a.

All three parties filed cross-motions for summary

judgment. While the motions were pending, Schramm and

Neenah reached a confidential settlement agreement. The

settlement was accepted by the district court and Neenah

dismissed from the action contemporaneous with the

court’s decision granting the union’s motion for summary

judgment. App.23a.

In granting the union’s motion, the district court found

that Haddock did not act arbitrarily or in bad faith when

he refused to file a grievance challenging Schramm’s

second termination. The court fully credited Haddock’s

subjective justifications for not filing the grievance.

App.34a-36a. Citing standards from O’Neill, App.29a, the

court explained that Haddock’s decision “falls within the

range of reasonableness” and was not “wholly irrational”

because “Haddock had to make a decision about filing the

grievance … with the information available to him at the

time.” App.36a-37a.

Despite submission of the transcript and recording

of the actual termination call refuting Haddock’s version

of events, R.1842-63 (transcript), R.1870 (recording), the

court nonetheless found that Schramm had put forth no

evidence to undermine Haddock’s subsequent explanation

for declining to file a grievance and thus there was no

evidence of bad faith. App.38a.

B. Sixth Circuit decision

The Sixth Circuit affirmed, also applying O’Neill’s

deferential standard to conclude that Haddock’s

determination that “Schramm would not prevail in

his grievance” was not “wholly irrational” based on

Schramm’s alleged statements on the termination call as

well as information gained from prior discussions with

local union and company officials. App.12a-13a, 15a.

Similarly, the court agreed there was no evidence of

bad faith on Haddock’s part, despite privately supporting

his termination, feigning surprise on the call, and

misrepresenting his plans to secure evidence and file a

grievance. App.16a. Throughout its opinion, the court

fully credited Haddock’s subjective justifications for his

decisions. App.17a-21a. The Court reasoned that he was

motivated by a desire to protect other members from

perceived threats, which required a balancing of interests.

App.19a. Additionally, the court found that Haddock

provided a reasonable explanation for his actions, that

Haddock’s deception was not serious or material, and that

Schramm had not put forth any evidence that Haddock

was motivated by any “improper intent, purpose, or

motive.” Id.20a-21a.

REASONS FOR GRANTING THE PETITION

The Sixth Circuit’s Application of O’Neill Swallows

Vaca Whole and Exposes a Deep Circuit Split

This Court’s precedent recognizes a heightened

duty of fair representation in discharge

grievances

Over eighty years ago, in rejecting union practices that

discriminated on the basis of race, this Court held that

bargaining representatives had a “duty to exercise fairly

the power conferred upon it on behalf of all those for whom

it acts, without hostile discrimination against them.” Steele

v. Louisville & N.R. Co., 323 U.S. 192, 203 (1944). While

unions are allowed a “wide range of reasonableness,” they

are “subject always to complete good faith and honesty of

purpose in the exercise of its discretion.” Ford Motor Co. v.

Huffman, 345 U.S. 330, 338 (1953). “The undoubted broad

authority of the union as exclusive bargaining agent in the

negotiation and administration of a collective bargaining

contract is accompanied by a responsibility of equal

scope, the responsibility and duty of fair representation.”

Humphrey v. Moore, 375 U.S. 335, 342 (1964).

The contours of a union’s duty of fair representation

towards individual workers were given further shape in

Vaca v. Sipes, supra. “A breach of the statutory duty of

fair representation occurs only when a union’s conduct

toward a member of the collective bargaining unit is

arbitrary, discriminatory, or in bad faith.” Vaca, 386 U.S.

at 190. This Court sought to strike a balance between a

member’s right to have a grievance taken to arbitration,

and a union’s discretion. Id. at 190. The Court “accept[ed]

the proposition that “a union may not arbitrarily ignore

a meritorious grievance or process it in perfunctory

fashion,” but declined to require “that the individual

employee has an absolute right to have his grievance taken

to arbitration.” Id. at 191.

Therefore, where a discharged worker files a “hybrid”

suit under the Labor Management Relations Act, 1947,

§ 301, 29 U.S.C. § 185, it is not enough to prove an unlawful

termination, but also that there was “arbitrary or badfaith conduct on the part of the Union in processing [the]

grievance.” Id. at 193.

In Vaca, the Court found no evidence of arbitrary

or bad faith conduct, where the union “processed the

grievance into the fourth step, attempted to gather

sufficient evidence to prove Owens’ case, attempted to

secure for Owens less vigorous work at the plant, and joined

in the employer’s efforts to have Owens rehabilitated. Only

when these efforts all proved unsuccessful did the Union

conclude both that arbitration would be fruitless and that

the grievance should be dismissed. There was no evidence

that any Union officer was personally hostile to Owens

or that the Union acted at any time other than in good

faith.” Id. at 194.

Vaca’s protection of individual members was further

strengthened in Hines v. Anchor Motor Freight, Inc.,

424 U.S. 554 (1976), where the union was found to have

breached its duty of fair representation, even though it

took the worker’s claim to arbitration. In Hines, truck

drivers were discharged over false charges that they were

dishonest – specifically, that they sought reimbursement

for hotel stays above what they spent. The company

shared its evidence with the union, including receipts,

hotel ledgers, and statements from the motel clerk and

owner. Over their pleas of innocence and to investigate the

hotel, the union assured them there was “nothing to worry

about,” and refused to independently investigate. At the

hearing, Anchor, bearing the burden of proof, presented

its case and then the employees were given an opportunity

to be heard. They denied their dishonesty, but neither the

employees nor the union presented any other evidence

contradicting the company’s documentation. The drivers

then lost their hearing in front of a joint committee. Id.

at 556-58.

Subsequently, the drivers independently investigated

and uncovered evidence of actual innocence. Id. at 558.

This Court disregarded the claim that the joint committee

decision operated as a finality bar, and allowed the drivers’

suit to proceed, stating that “enforcement of the finality

provision where the arbitrator has erred is conditioned

upon the union’s having satisfied its statutory duty fairly to

represent the employee in connection with the arbitration

proceedings. Wrongfully discharged employees would be

left without jobs and without a fair opportunity to secure

an adequate remedy.” Id. at 571. 3

3. Certiorari was granted on the following question: “Whether

petitioners’ claim under LMRA § 301 for wrongful discharge is

barred by the decision of a joint grievance committee upholding

their discharge, notwithstanding that their union breached its duty

of fair representation in processing their grievance so as to deprive

them and the grievance committee of overwhelming evidence of their

innocence of the alleged dishonesty for which they were discharged.”

Hines v. Anchor Motor Freight Inc., 421 U.S. 928, 929 (1975). The

Court accepted the circuit court’s holding that the duty of fair

representation had been breached under these facts.

Hines has been widely understood to hold that the

union breached its duty of fair representation by failing

to undertake a good faith investigation of the drivers’

claims of innocence.4 The Sixth Circuit has generally

followed suit, holding that the union’s duty of fair

representation includes a duty to reasonably investigate

the merits of a grievance. See, e.g., Driver v. U.S. Postal

Service, 328 F.3d 863, 869 (2003); Black v. Ryder/P.I.E.

Nationwide, Inc., 15 F.3d 573, 585 (6th Cir. 1994) Walk

v. P*I*E Nationwide, Inc., 958 F.2d 1323, 1326 (6th Cir.

1992) (“union must undertake reasonable investigation to

defend [an employee] from employer discipline”), citing

Hines, supra.

Professor Robert A. Gorman has written that the

relevant inquiry is not “whether the union in fact pursues

an employee’s grievance,” but rather “whether the union

has made a full investigation, has given the grievant notice

and an opportunity to participate, has mustered colorable

arguments and has refuted insubstantial arguments by

the employer.” Miller v. Gateway Transp. Co., Inc., 616

F.2d 272, fns. 10, 11, quoting Gorman, Basic Text on Labor

Law, Unionization, and Collective Bargaining, Ch. 30,

§ 6, n.11, at 718 (West Pub. Co., St. Paul 1976). 5

4. See, e.g., Emmanuel v. Int’l Bhd. of Teamsters, Loc. Union

No. 25, 426 F.3d 416, 420–21 (1st Cir. 2005); Garcia v. Zenith Elec.

Corp., 58 F.3d 1171, 1176 (7th Cir.1995); Abilene Sheet Metal, Inc. v.

N.L.R.B., 619 F.2d 332, 347 (5th Cir. 1980); Miller v. Gateway Transp.

Co., 616 F.2d 272, 277 (7th Cir. 1980); Newport News Shipbuilding &

Dry Dock Co. v. N.L.R.B., 631 F.2d 263, 269 (4th Cir. 1980).

5. Although this Court has not cited this particular language

quoted in Miller, it has cited Gorman’s treatise in many cases: Sears,

Roebuck & Co. v. San Diego County Dist. Council of Carpenters,

436 U.S. 180 (1978); Eastex, Inc. v. N.L.R.B., 437 U.S. 556 (1978);

Contrast here, where Schramm’s union did nothing

of substance; there was no review of company evidence,

no attempt to gather evidence in his favor, no meaningful

attempt to seek his side of the story, no grievance filed,

and no attempt to advocate for him in any way.

Despite this Court’s guidance in Vaca and Hines,

the Sixth Circuit nevertheless deferred to the union’s

decision not to grieve Schramm’s discharge, finding that

Haddock’s determination that the grievance could not be

won was not “wholly irrational,” and “within the range of

reasonableness” even if ultimately wrong. App.12a-13a,

15a-16a. In reaching this conclusion, the Sixth Circuit

misapplied this Court’s decision in O’Neill and Marquez

to render final the termination of an innocent employee,

without any ability for review by a neutral, objective

decision-maker.

Significantly, O’Neill did not involve an individual

worker’s discharge or grievance. It arose from an

acrimonious labor dispute, where Continental Airlines

filed for bankruptcy protection and repudiated its

collective bargaining agreement with the Air Line Pilots

Association (ALPA). A strike ensued and replacements

were hired. Two years later, when vacancies arose,

Continental and ALPA cut a deal to provide the striking

pilots certain choices, including an option to return to

Detroit Edison Co. v. N.L.R.B., 440 U.S. 301 (1979); Pennco, Inc.

v. N.L.R.B., 459 U.S. 994 (1982) (mem.); DelCostello v. Int’l Bhd.

of Teamsters, 462 U.S. 151 (1983); N.L.R.B. v. Action Automotive,

Inc., 469 U.S. 490 (1985); Pattern Makers’ League of N. Am., AFLCIO v. N.L.R.B., 473 U.S. 95 (1985); Fall River Dyeing & Finishing

Corp. v. N.L.R.B., 482 U.S. 27 (1987); N.L.R.B. v. Curtin Matheson

Scientific, Inc., 494 U.S. 775 (1990).

work. Unsatisfied with the deal, some striking pilots sued

ALPA, charging that the union breached its duty of fair

representation. O’Neill, 499 U.S. at 65.

This Court held, unanimously, that Vaca v. Sipes

applied to a union in “all activity,” including its

negotiating capacity. Id. at 67. The Court utilized the

following quotation that has been widely repeated – and

often misapplied: “…the final product of the bargaining

process may constitute evidence of a breach of duty

only if it can be fairly characterized as so far outside

a ‘wide range of reasonableness,’ Ford Motor Co. v.

Huffman, 345 U.S., at 338, that it is wholly ‘irrational’

or ‘arbitrary.’” Id. at 78.

The precise quote in Huffman is “A wide range of

reasonableness must be allowed a statutory bargaining

representative in serving the unit it represents, subject

always to complete good faith and honesty of purpose in

the exercise of its discretion.” Ford Motor Co. v. Huffman,

345 U.S. at 338. O’Neill added the phrase “so far outside”

to modify “a wide range of reasonableness,” and omitted

the qualifiers “bargaining representative” and “subject

always to complete good faith and honesty.” O’Neill is also

the progeny of the phrase “wholly irrational.”

Critically, O’Neill’s focus was on the contract negotiation

process, rather than the contract administration or

enforcement that is involved in grievance arbitration. This

is apparent from multiple passages in that opinion, to wit:

• “ We granted certiorari to clarify the

standard that governs a claim that a union

has breached its duty of fair representation

in its negotiation of a back-to- work

agreement terminating a strike.”

• “The Government has generally regulated

only ‘the process of collective bargaining,’

but relied on private negotiation between

the parties to establish ‘their own charter

for the ordering of industrial relations.’”

• Congress “intended that the parties should

have wide latitude in their negotiations,

unrestricted by any governmental power

to regulate the substantive solution of their

differences.”

499 U.S. at 67, 74, emphasis added, internal cites omitted.

The Court analogized a union’s duty to that owed by

“other fiduciaries to their beneficiaries.” Id. at 74. The

Court then traced the development of the doctrine of the

duty of fair representation and pointed out that the union

asked for a more lenient standard6 for contract negotiation:

“The union correctly points out, however, that virtually

all of those cases can be distinguished because they

involved contract administration or enforcement rather

than contract negotiation.” Id. at 77.

While the Court declined to make such a bright-line

distinction, it agreed that the Court of Appeal’s refinement

6. ALPA argued that the duty of fair representation “requires

only that a union act in good faith and treat its members equally and

in a nondiscriminatory fashion, but does not impose any obligation

to provide adequate representation.” O’Neill, 499 U.S. at 65.

of the arbitrariness component of the standard had

gone too far, “authori[zing] more judicial review of the

substance of negotiated agreements than is consistent

with national labor policy.” Id., emphasis added.

The Court thus elaborated on the appropriate level

of review in the context of collective bargaining: “Any

substantive examination of a union’s performance,

therefore, must be highly deferential, recognizing the

wide latitude that negotiators need for the effective

performance of their bargaining responsibilities.” Id. at

78. That phrase “highly deferential,” restricted in O’Neill

to bargaining cases, has since been misapplied outside

the negotiation process, to individual grievances, as

demonstrated in greater detail below.

The Court went on to admonish the Court of Appeals’

attempt to circumvent the end result of the bargaining

process, because it did not “take into account either the

strong policy favoring the peaceful settlement of labor

disputes, or the importance of evaluating the rationality

of a union’s decision in light of both the facts and the legal

climate that confronted the negotiators at the time the

decision was made.” Id., internal cites omitted.

In short, even a cursory reading of O’Neill points to

its application being restricted to the contract negotiation

process. That limitation was reinforced by a later case,

Marquez v. Screen Actors Guild, Inc., 525 U.S. 33 (1998),

also cited by the Sixth Circuit in denying Schramm’s

appeal. App.13a.

Marquez involved a lawsuit filed by an actress against

the Screen Actors Guild, alleging a breach of duty of fair

representation in its negotiation of a flawed union security

clause. Again, the decision was unanimous.

The Court’s framing of that case was narrow: “Does

a union breach its duty of fair representation merely

by negotiating a union security clause that tracks the

language of § 8(a)(3) [of the National Labor Relations Act]?”

Marquez, 525 U.S. at 42. The Court held that negotiating

such a clause that merely included the language of the

statute did not breach the duty of fair representation.

Id. at 44. Applying O’Neill, this Court explained that the

“wide range of reasonableness” afforded to negotiators

“gives the union room to make discretionary decisions and

choices, even if those judgments are ultimately wrong.”

Id. at 45–46. Though the opinion did not expressly state

that it was restricted to negotiations, the Court took

pains to restrict its consideration of the case only to the

contract negotiation process, declining to hear any of the

petitioner’s claims alleging a breach of the duty of fair

representation arising from enforcement of that clause,

or failing to notify her of certain rights. Id. at 42.

No Supreme Court case has ever applied the much

broader language from O’Neill and Marquez to a case

involving contract enforcement, such as investigation

and grievance administration in the case of a discharged

worker. Nor has any case held that the union has

discretion to ignore a meritorious grievance or to handle it

perfunctorily and without investigation. Yet that is exactly

what the Sixth Circuit did here. Had the Sixth Circuit

applied the correct standard, it should have determined

that there was a triable issue on both arbitrariness and

bad faith.

B. Many circuits wrongly apply O’Neill to

discharge grievances, resulting in a 4-5 split

The Sixth Circuit is not alone. Without Supreme

Court guidance in many decades, at least five circuits

have erased the distinction between a union’s duty of

fair representation towards an individual in discharge

cases and towards the collective good in negotiations.

Specifically, the circuits have taken this Court’s standard

for negotiations as set forth above, and improperly grafted

that language onto discharge cases, which involve contract

enforcement.

The survey of circuits, below, demonstrates a split

of four that correctly limit application of O’Neill to the

bargaining process (Fourth, Seventh, Ninth, and D.C.

Circuits), five that do not (First, Second, Third, Sixth,

Eighth), and three that are inconclusive (Fifth, Tenth,

and Eleventh). Certiorari should be granted to resolve

this circuit split and uncertain landscape.

Four circuits apply the correct standard

The Fourth Circuit has recognized that the “wide

range of reasonableness” language from O’Neill does not

apply beyond the bargaining table. “When it addresses the

merits of an individual grievance, the union is not entitled

to a ‘wide range of reasonableness’ in its conduct.” Dement

v. Richmond F. & P.R.R., 845 F.2d 451, 460 (4th Cir.1988),

quoting Schultz v. Owens–Illinois, Inc., 696 F.2d 505, 515

(7th Cir.1982) and Ford Motor Co. v. Huffman, 345 U.S.

330, 338 (1953). See also Kallas v. AAF-McQuay, No. CIV.

A. 97-00010-H, 1998 WL 264750, at *5 (W.D. Va. May 5,

1998) (granting summary judgment in favor of discharged

employee on breach of duty of fair representation claim,

and citing Dement in stating: “Moreover, when a union

processes an individual grievance, the Fourth Circuit

does not accord the union the same wide latitude as when

the union negotiates a collective bargaining agreement.”)

The Seventh Circuit also recognizes the distinction.

As explained in Schultz, 696 F.2d at 514, “Duty of fair

representation cases may take two forms. First, there

are those cases predicated upon claims that the union

breached its duty in negotiating a collective bargaining

agreement. Second, there are cases alleging that the

union breached its duty in administering the collective

bargaining agreement (e.g., in processing a grievance).”

The Court cited Leffler, Piercing the Duty of Fair

Representation: The Dichotomy Between Negotiations

and Grievance Handling, 1979 U.Ill.L.F. 35, and added,

“The Supreme Court has implicitly recognized this

dichotomy by defining a different standard in each of

these two different situations.” Id. Schultz justified the

distinction with reference to Huffman, 345 U.S. at 33738, noting that “… the union is obligated ‘to represent all

members of an appropriate unit [and] to make an honest

effort to serve the interests of all those members, without

hostility to any.’ … [but] in contract negotiations ‘[t]he

complete satisfaction of all who are represented is hardly

to be expected.’” Schultz, 696 F.2d at 515.

Schultz emphasized, “[o]n the other hand, when

assessing a union’s conduct in processing a grievance, the

Supreme Court, while also using a ‘good faith’ standard,

has not purported to grant the union ‘a wide range of

reasonableness.’” Id., citing Vaca v. Sipes, 386 U.S. at 190.

Schultz reasoned that the grievance context did

not require “the inherent difficulties of satisfying the

demands of diverse employees as it had in Huffman.

Instead, the Court emphasized the union’s statutory

obligation to represent each individual employee fairly,

with a nonperfunctory concern for his complaints and

with a nonarbitrary exercise of judgment in evaluating

grievances.” Id. Schultz concluded, “The application of the

Vaca standard in the context of grievance procedures does

not provide for union discretion within ‘a wide range of

reasonableness’—in contrast to the collective bargaining

standard of Huffman.” Id.

Seven years later, in Thomas v. United Parcel Serv.,

Inc., 890 F.2d 909, 918 (7th Cir. 1989), the court quoted the

Schultz reasoning at length to reaffirm the “two forms” of

duty of fair representation cases, and to vacate dismissal

of the worker’s claim against his union. Thomas involved

a duty of fair representation claim in the context of an

unjust termination. Also relying on this reasoning was

Olsen v. United Parcel Serv., 892 F.2d 1290 (7th Cir. 1990).

Both Thomas and Olsen vacated district court findings

in favor of the unions and reinstated the workers’ claims.

The Ninth Circuit follows the D.C. Circuit in correctly

recognizing that O’Neill must be read in context. Lucas

v. N.L.R.B., 333 F.3d 927, 933 (9th Cir. 2003) (declining

to apply O’Neill to union operation of a hiring hall “in

light of the added responsibility that unions have over

workers’ livelihood[s].”) In rejecting application of O’Neill’s

highly deferential standard, the Court held that “in

administering a hiring hall, a union has a heightened duty

of fair dealing that requires it to operate by ‘reference to

objective criteria.’” Id. at 935, quoting Jacoby v. NLRB,

233 F.3d 611, 616 (D.C. Cir. 2000) and Plumbers & Pipe

Fitters Loc. Union No. 32 v. N.L.R.B., 50 F.3d 29 (D.C.

Cir. 1995), discussed below.

Finally, the D.C. Circuit restricts O’Neill’s “highly

deferential” standard to “context.” In Jacoby, 233 F.3d at

616, the Court explained: “In O’Neill the Court’s focus was

on “protecting the content of negotiated agreements from

judicial second-guessing. … Absent clear instructions

from the Supreme Court, we decline to weaken this

principle [by extending it to other contexts].” The Jacoby

Court reinforced its previous holding in Plumbers & Pipe

Fitters, which reasoned that in O’Neill, “[t]he Court’s focus

on protecting the content of negotiated agreements from

judicial second-guessing is apparent from its repeated

references to ‘the substance of negotiated agreements,’

and ‘the final product of the bargaining process.’” Jacoby,

50 F.3d at 33, quoting O’Neill, 499 U.S. at 77–78. Thus,

O’Neill’s references to “highly deferential,” “so far outside

a wide range of reasonableness,” and “wholly irrational”

were intended to be applicable only to the bargaining

process. Id.

Five circuits apply the incorrect standard

In the First Circuit, in Miller v. U.S. Postal Serv., 985

F.2d 9 (1st Cir. 1993), a postal worker unsuccessfully sued

his union for failing to enforce a grievance arbitration

award. The court relied on the O’Neill standard in

affirming the district court’s grant of summary judgment.

Miller was then relied on in Emmanuel v. Int’l Bhd. of

Teamsters, Loc. Union No. 25, 426 F.3d 416 (1st Cir. 2005),

where a terminated bus driver sued his union for allegedly

failing to adequately investigate prior to his arbitration

hearing. He lost in the district court on summary

judgment, which the First Circuit affirmed. Miller was

most recently relied upon in Bryan v. Am. Airlines, Inc.,

988 F.3d 68 (1st Cir. 2021), where a pilot sued his union for

improperly investigating his claim and failing to take it

to arbitration. Like Miller and Emmanuel, the worker in

Bryan failed to get a trial, having his claim dismissed in

the trial court on summary judgment, which was affirmed

in the Court of Appeals, applying the “highly deferential”

standard to the discharged plaintiff. Bryan, 988 F.3d at

74-75, quoting O’Neill, 499 U.S. at 78.

In the Second Circuit, Sanozky v. Int’l Ass’n of

Machinists & Aerospace Workers, 415 F.3d 279 (2d

Cir. 2005) affirmed the grant of summary judgment to

a union, against a worker who alleged that the union

failed to adequately pursue his wrongful termination

grievance. The court mechanically cited the language

that “[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.” Id. at 282–83.

The Third Circuit routinely applies O’Neill in cases

involving discipline and discharge, e.g. Cromwell v. United

Steel Workers of Am., 423 F. App’x 213, 218 (3d Cir. 2011),

Burns v. Salem Tube, Inc., 381 F. App’x 178, 181 (3d Cir.

2010), Klimek v. United Steel Workers Loc. 397, 618 F.

App’x 77, 81 (3d Cir. 2015), Gehringer v. Atl. Detroit Diesel

Allison LLC, 595 F. App’x 157, 161 (3d Cir. 2014), and

Johnson v. Thomas Jefferson Univ. Hosp., 112 F. App’x

838 (3d Cir. 2004).

Previous to this case, the Sixth Circuit applied O’Neill

in other disciplinary cases, including Int’l Union, United

Auto., Aerospace & Agric. Implement Workers of Am. v.

Nat’l Lab. Rels. Bd., 844 F.3d 590, 603 (6th Cir. 2016) (union

processed grievance through second step and then settled

it with a last chance agreement), and Crampton v. Kroger

Co., 709 F. App’x 807 (6th Cir. 2017) (union processed

grievance through last step in the grievance process but

declined to arbitrate where employees admitted to policy

violation and employer uniformly terminated for known

violations of the policy), finding no breach of duty.

The Eighth Circuit grafted O’Neill’s holding onto

discharge cases beginning with Schmidt v. Int’l Bhd. of

Elec. Workers, Loc. 949, 980 F.2d 1167 (8th Cir. 1992),

where the worker argued that the union acted arbitrarily

in refusing to press his grievance to arbitration, the

Court stated: “The Supreme Court recently defined the

“arbitrary conduct” standard under Vaca v. Sipes: “[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.” Id. at 1169, citing

O’Neill, 499 U.S. at 68. The Court affirmed summary

judgment to the union, noting that “as the O’Neill standard

recognizes, unions must be afforded considerable latitude

in the exercise of their reasoned judgment.” Id. The

following cases also applied O’Neill to discharge grievance

cases, Beavers v. United Paperworkers Int’l Union, Loc.

1741, 72 F.3d 97 (8th Cir. 1995), Smith v. United Parcel

Serv., Inc., 96 F.3d 1066 (8th Cir. 1996), Cross v. United

Auto Workers, Loc. 1762, 450 F.3d 844 (8th Cir. 2006).

Three circuits do not have a consistent

standard

In the Fifth Circuit, before O’Neill, in Landry v.

The Cooper/T. Smith Stevedoring Co., 880 F.2d 846, 852

(5th Cir. 1989), the Court correctly cited Vaca’s standard

that “a union may not ‘arbitrarily ignore a meritorious

grievance or process it in perfunctory fashion.’” A

union also has “an obligation for a union to investigate a

grievance in good faith … [and] to prosecute a grievance

‘with reasonable diligence unless it decided in good faith

that the grievance lacked merit or for some other reason

should not be pursued.’” Id. Landry was relied upon in

subsequent district court opinions, Lowrey v. Exxon

Corp., 812 F. Supp. 644 (M.D. La. 1993) (finding genuine

issues of material fact as to whether union breached its

duty in failing to investigate based on facts raised in

opposition to motion, but dismissing case based on failure

to establish a breach of contract by employer), aff’d, 19

F.3d 15 (5th Cir. 1994); Bodin v. Morton Salt, Inc., No.

6:22-CV-01863, 2023 WL 5761332 at *5 (W.D. La. Sept.

6, 2023); and Green v. United Parcel Serv. Inc., No. CV

23-1082, 2025 WL 359282, at *3 (W.D. La. Jan. 30, 2025).

In contrast, in Jaubert v. Ohmstede, Ltd., 574 F. App’x

498, 502 (5th Cir. 2014), the Fifth Circuit cited O’Neill and

affirmed a grant of summary judgment to the union based

on the “deferential standard of review that we apply to a

union’s actions.” Id. at 503.

The Tenth Circuit’s application of O’Neill to discharge

cases is also inconsistent. Young v. United Auto. Workers

Lab. Emp. & Training Corp., 95 F.3d 992, 999 (10th Cir.

1996) cited O’Neill in affirming a grant of summary

judgment against a worker, concluding, “… we must agree

with the district court that under O’Neill ‘s “irrational”

standard, the appellant is “far from a legitimate lawsuit

in federal court.” Also see Lampkin v. Int’l Union, United

Auto., Aerospace & Agr. Implement Workers of Am.

(UAW), 154 F.3d 1136 (10th Cir. 1998).

Conversely, in the same time frame, the Tenth

Circuit explicitly rejected a union’s reliance on O’Neill

in a discharge case, reasoning, “… the dispute in O’Neill

involved claims of union misconduct in the context of

contract formation, as opposed to contract administration

in a grievance proceeding.” Webb v. ABF Freight Sys., Inc.,

155 F.3d 1230, 1240 (10th Cir. 1998). In that case, the court

had no difficulty affirming a jury verdict for the unjustly

discharged employee where the union “made no serious

effort to investigate the facts of Webb’s claims.” Id. at 1241.

In the Eleventh Circuit, the seminal case seems to be

Harris v. Schwerman Trucking Co., 668 F.2d 1204 (11th

Cir. 1982), which in a brief but concise opinion, surveyed

the various circuits to conclude that a union may only be

held liable if it handled a grievance in an arbitrary and

perfunctory manner. Id. at 1206 (finding no breach where

union assisted with grievance and a hearing was held

before joint committee). Although there is a dearth of

opinion post O’Neill, the Eleventh Circuit did apply O’Neill

to a discharge case in Barrington v. Lockheed Martin,

257 F. App’x 153, 156 (11th Cir. 2007), upholding a grant

of summary judgment against a pro se worker.

II. Review is Necessary to Protect Substantial Worker

Rights

The standard set forth in Vaca v. Sipes strikes a fair

balance between workers’ rights and union discretion.

However, application of O’Neill’s extremely deferential

“wholly irrational” standard creates a much higher bar for

workers to overcome when alleging that their unions failed

to adequately represent them in employment termination

grievances.

For example, before adopting Sanozky, supra, the

Second Circuit was correctly applying the narrower

standards for discharge cases. In Samuels v. Air Transp.

Loc. 504, 992 F.2d 12 (2d Cir. 1993), the court reinstated a

vacated jury verdict for the worker, finding that “The jury

reasonably could have found the union failed to investigate

and present adequately the grievance because it neglected

to discuss the case or possible witnesses with Samuels

until the day of the hearing.” Id. at 16. Despite Samuels

having been cited in over 1,000 cases, it effectively died

out without any negative history. Sanozky didn’t cite it

at all when altering the standard, and has since become

the new precedent, cited 21 times to date by the Second

Circuit, to the exclusion of Samuels altogether. Not one

of those cases found for the worker.

Indeed – trying to prove that a union’s decision not to

grieve is “wholly irrational” may not overcome even the

weakest, slightly plausible explanation as to why a union

didn’t investigate or grieve an employment termination.

In Schramm’s case, for example, the union was permitted

to rely on a subjective interpretation of Schramm’s

statements in the vulnerable moments immediately

following his second discharge. App.9a. Far from an

admission of guilt, Schramm denied any wrongdoing and

tried to explain why he felt he was being set up, once again.

R.1851-53, 1856-58. But that didn’t matter, because the

USW chose to believe the company over Schramm, and

the court fully credited Haddock’s subjective explanations,

even excusing his dishonesty and expressions of support

for Schramm’s termination. App.13a-21a.

III. Deference to a Union’s Subjective Motives and

Intent Should Never Take Precedence Over

Vaca’s Objective Test or Traditional Standards of

Summary Judgment

The Sixth’s Circuit’s error in applying O’Neill’s

“wholly irrational” test was further compounded by

prioritizing its deference to the union’s subjective motives

and intent, at the expense of the objective test demanded

by Vaca v. Sipes and traditional standards of summary

judgment. When that occurs, this Court may intervene,

as it did in Tolan v. Cotton, 572 U.S. 650, 659 (2014): (“we

intervene here because the opinion below reflects a clear

misapprehension of summary judgment standards in light

of our precedents,” which is to “view the evidence ‘in the

light most favorable to the opposing party.’” Id. at 657.

Here, the Sixth Circuit’s deference to the union was so

skewed that it disregarded traditional summary judgment

jurisprudence, with multiple facts and inferences resolved

in the union’s favor.

In support of the USW’s motion for summary

judgment, Haddock justified his decision not to grieve

based on three factors (1) he believed the company had

proof of misconduct, R.1182 (Decl. ¶ 59); (2) he understood

Schramm’s statements following his termination to

be admissions of guilt, R.1182 (Decl. ¶ 62); and (3) he

determined that Schramm made a veiled threat on the

call, R.1183 (Decl. ¶ 64). The Sixth Circuit accepted these

assertions. App.9a, 14a-21a.

To understand the gravity of the court’s wholesale

adoption of Haddock’s rationale for denying the grievance,

context is essential. At his deposition, Haddock testified

that he made this decision on his own, without reviewing

any evidence because he felt he already had all of the

information he needed. R.1388. Haddock had never seen a

text, email, or phone message where Schramm threatened

someone. R.1375. Nor did he speak with anyone who

personally heard Schramm make any threat. Instead, he

relied exclusively on reports “of concerns” he had received

from local union leadership and the company. Id.

Prior to the termination call, Haddock had been

briefed by Howe on the company’s decision and was

supportive. App.7a. Haddock testified, “During that call

on the 21st, that’s when it was being confirmed and it was

– everything was coming together, that he in fact had a

list, and it was being confirmed by the company as well

… from corporate HR.” R.1384.

Then, at the outset of the December 29, 2021 call,

Schramm was terminated. When Haddock asked “what

proof do you have?”, Howe falsely responded, “We have a

lot of proof that’s been sent up both to myself and to our

corporate legal department.” R.1847. This is key because,

as explained by Haddock, the “first factor” in his decision

was “Howe’s unequivocal representation that she had ‘a

lot of proof’ of Schramm’s threatening behavior.” R.1182

(Decl. ¶ 59); See also R.1847 (transcript).

From that point forward, everything that Schramm

said in his defense, including his proclamation of innocence,

was viewed through a lens of guilt. It didn’t matter what

he said or how he said it.

In short, Haddock’s decision not to grieve was not

based on any objective evidence or review of the company’s

proof, but on his clouded perception that the company

was credible and Schramm was not. As illustrated

above, this is not the type of objective, reasoned decision

making contemplated by the Vaca or Hines Courts. To

discount and disregard all evidence that did not support

the company’s version of events was in error and cannot

be justified under the union’s duty of fair representation.

IV. This Case Presents an Ideal Vehicle for Resolving

the Tension Between Vaca and O’Neill

Tom Schramm’s case is particularly apt for this Court

to resolve the circuit split and to clarify the standards

for evaluating a union’s conduct in a discharge case. Both

lower courts, in applying the wrong test, held that this

wholly innocent worker was not entitled to a trial, where

his union relied on false assumptions and rumors, did not

investigate, and failed to file even a step one grievance. If a

worker cannot get a trial even under these circumstances,

that is tantamount to a standard of immunity that is

extremely challenging to overcome.

For fourteen million-plus unionized workers in the

United States, who rely on their union to protect them

when their jobs and livelihood are on the line, a grant of

certiorari will permit this Court to thoroughly examine

these critical questions.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Nicholas Roumel

Roumel Law

4101 Thornoaks Drive

Ann Arbor, MI 48104

(734) 645-7507

nick@roumel-law.com

Wendy E. Marcotte

Counsel of Record

Marcotte Law PLLC

102 West Washington Street,

Suite 217

Marquette, MI 49855

(906) 273-2261

wendy@marcottelaw.us

Counsel for Petitioner

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED OCTOBER 6, 2025 . . . 1a

APPENDIX B — OPINION AND ORDER OF

T H E U N I T E D S T A T E S DI S T R IC T

COURT FOR THE WESTERN DISTRICT

OF MICHIGAN, NORTHERN DIVISION,

FILED SEPTEMBER 11, 2024 . . . . . . . . . . . . . . . 22a

Appendix

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT,

FILED OCTOBER 6, 2025

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 24-1882

THOMAS SCHRAMM,

Plaintiff-Appellant,

NEENAH PAPER MICHIGAN, INC.,

Defendant,

UNITED STEEL, PAPER AND FORESTRY,

RUBBER, MANUFACTURING, ENERGY, ALLIED

INDUSTRIAL AND SERVICE WORKERS

INTERNATIONAL UNION, AFL-CIO-CLC, AKA

UNITED STEEL WORKERS, AKA USW,

Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE WESTERN

DISTRICT OF MICHIGAN

Before: SUTTON, Chief Judge; STRANCH and RITZ,

Circuit Judges.

Appendix A

OPINION

JANE B. STRANCH, Circuit Judge. Thomas

Schramm filed suit against his Union, United Steelworkers

International, asserting breach of the duty of fair

representation arising out of the Union’s refusal to

grieve his second termination. The district court granted

summary judgment on the ground that Schramm failed

to adduce sufficient evidence of a breach. For the reasons

set forth below, we AFFIRM the judgment of the district

court.

I. BACKGROUND

A. Factual Background

Since 1986, Schramm worked for Neenah Paper

Company, a producer of paper-based consumer products,

at the company’s plant in Munising, Michigan. As of 2021,

Schramm was the plant’s Fire Chief and a member of

the United Steelworkers Union, District 2, Local 2-96,

which represents the plant’s maintenance workers. United

Steelworkers International (USW) negotiated a collective

bargaining agreement (CBA) with Neenah on behalf

of Local 2-96 along with a separate USW union, Local

2-87, which represents the production employees at the

Munising plant.

Schramm’s First Termination

This case involves two claims of unjust termination,

separated by time, which Schramm sought to grieve.

Appendix A

Neenah first terminated Schramm on March 1, 2021, for

reporting a chemical spill to the Michigan Department

of Environment, Great Lakes, and Energy, purportedly

in violation of Neenah’s confidentiality policies. Schramm

contested the termination, thereby triggering the CBA’s

grievance process.

The CBA establishes a grievance procedure consisting

of three stages. Under standard protocol, Local 2-96

is the entity that is generally responsible for filing

grievances on behalf of its members and shepherding

those grievances through the first two stages. At the first

stage, the local union steward presents the grievance to

the employee’s supervisor. If the grievance is not resolved,

the local union steward transmits the grievance up the

chain of command to the department superintendent or

a designated representative. If no resolution is reached,

the grievance proceeds to the third stage. At that point,

an international representative from USW takes over and

attempts to negotiate a settlement with the plant manager.

If no agreement is reached, the matter may proceed to

arbitration. At the time of Schramm’s termination, Chris

Haddock was the USW staff representative in charge of

overseeing and prosecuting member grievances beginning

at the third stage.

Local 2-96 filed a grievance on Schramm’s behalf

and represented him through the first two stages, both

of which resulted in denials and led to Haddock taking

over the grievance procedure at the third stage. During

the third stage, Schramm filed suit in federal court,

alleging violation of the Whistleblower Protection Act,

Appendix A

and the parties agreed to stay the litigation pending

arbitration. On October 6, 2021, before arbitration

occurred, Neenah agreed to reinstate Schramm with

backpay. Neenah continued to negotiate with the USW

and Schramm, represented by Haddock, on the amount

of backpay and other “additional rules that might exist”

regarding Schramm’s return to work. R. 77-2, Schramm

Dep., PageID 1315. In December 2021, Neenah entered

into a Settlement Agreement that set Schramm’s returnto-work date as January 3, 2022, and Schramm’s lawsuit

was dismissed by stipulation.

Tensions Between Schramm and Other Neenah

Employees

Schramm had a contentious relationship with a

number of employees at Neenah. Relevant here, in May

2021, shortly after his first termination, Schramm told

Josh Trader, the president of Local 2-96, that he wanted to

see five Neenah employees fired. These employees included

Kathy Hill, Neenah’s local human resources director, and

Brian Houghton, the manager of the Munising plant.

Schramm’s apparent animus toward his coworkers

became an issue of concern among officials at Neenah,

as well as the local unions. According to Trader, during

reinstatement negotiations for Schramm, multiple Neenah

employees voiced concerns that Schramm had a “hit list”

consisting of the five Neenah employees that he wanted

fired and that Schramm was “volatile,” “hostile,” and

potentially “violent.” R. 77-10, Trader Dep., PageID 1577,

1582-83. Michael Peters, president of Local 2-87, and

Appendix A

Gregg Murk, who succeeded Schramm as Fire Chief after

Schramm’s first termination, testified that they heard

similar expressions of concern from Neenah employees

regarding Schramm’s behavior and his list, though neither

recalled it being expressly referred to as a “hit list.”

Trader, Peters, and Murk passed these concerns on to

Haddock, as the individual who oversaw the third stage of

Schramm’s grievance and the negotiations over his return

to work. They did not, however, provide Haddock with the

names of the individuals who purportedly felt threatened,

citing the individuals’ fear over potential “repercussions

from . . . Schramm.” R. 77-4, Haddock Dep., PageID 1374.

During this period, officials at Local 2-96 and Local

2-87 internally voiced their concerns about Schramm’s

prospective return to work. For example, on October

10, 2021, Trader texted Murk that he was “embarrassed

to be representing [Schramm].” R. 78-14, Trader/Murk

Texts, PageID 1666. In response, Murk texted that

“[Schramm’s] going to be a f------g pain” and mused that

“[m]aybe Haddock will piss [Schramm] off enough he will

just go away.” Id. at PageID 1667. On November 3, Trader

emailed Hill that he “still believe[s] it would be beneficial to

find a way to not have [Schramm] back.” R. 79-1, Trader/

Hill Email, PageID 1681. Five days later, on November

8, Trader informed Hill that Schramm had called him

multiple times and left multiple voicemails, and he called

Schramm “nuts.” R. 79-2, Trader/Hill Texts, PageID 1683.

Hill testified that she became increasingly concerned

about her safety as Fall 2021 wore on. On October 13, Hill

emailed Monica Howe, Neenah’s vice president of human

Appendix A

resources, reporting information from Peters and Trader

that Schramm was “going around telling people he’s going

to [get]” her and multiple other colleagues “fired when

he gets back” to work. R. 77-5, Hill Dep., PageID 1436.

On November 17, while he was out of state, Schramm

texted Trader and Murk asking if Hill was in the office.

According to Schramm, he wanted to speak with Hill

about backpay and insurance issues. Trader and Murk

reported the texts to Hill, voicing concerns for her safety.

Hill reported the safety concerns to Howe and Houghton.

In a November 18 email to Howe, Hill wrote that she had

shared her concerns about Schramm with Haddock and

emphasized that she “would be doing everything in [her]

power to stop this madness,” and that Haddock was “very

supportive and said [she] had to do what was right for [her]

and the Munising employees.” R. 79-5, Hill/Howe Email,

PageID 1692. Howe passed these concerns on to Neenah’s

corporate management.

Schramm’s Second Termination

On December 21, 2021, Howe and two members of

Neenah’s corporate team—Michael Rickheim and Noah

Benz—decided to terminate Schramm’s employment. That

same day, Howe drafted a list of talking points that would

be provided to Schramm regarding his termination. The

document, titled “Communication Plan,” explained that

Schramm was being terminated because of “comments

and behaviors” that “violat[ed]” Neenah’s “workplace

harassment and appropriate behavior policy.” R. 796, Communication Plan, PageID 1696. The Plan cited

Schramm’s “[e]xcessive phone calls or text messages”

Appendix A

and repeated “reference[s]” to “a hit list with [five] names

on it,” and it stated that Schramm’s fellow employees

were afraid of him and were “looking for places to hide”

should he return to work. Id. Howe spoke with Haddock

regarding the decision and emailed him a copy of the

document. Howe testified that Haddock “supported the

company’s decision when [she] called him and told him.”

R. 77-7, Howe Dep., PageID 1498.

On December 28, Howe held a conference call

with Schramm and Haddock, in which she informed

Schramm that he was being terminated from Neenah

due to his inappropriate behavior. Haddock asked “what

proof” Howe possessed that Schramm had behaved

inappropriately. Howe pointed to “excessive phone calls

and text messages” from Schramm, as well as “multiple

comments and threats” that he had made regarding a “hit

list” of his fellow employees. Id. Haddock stated that the

termination was “out of the blue” for him and that he would

need to “put together an information request seeking out

th[e] individuals” who voiced safety concerns regarding

Schramm. Id. at PageID 1847-49. Haddock also told Howe

that he would have to grieve the termination.1

During the call, Schramm confirmed that he had been

angry with Hill and four other Neenah employees, though

he denied that he had a “hit list” and asserted that he had

initially planned, upon his return to work, to make amends

with these five individuals. He continued to criticize these

1. The transcript of the call erroneously transcribes the word

“grieve” as “read.”

Appendix A

individuals on the call, accusing them of fostering a hostile

work environment and falsifying information relating to

the first termination. Schramm also asserted that Hill

was “the one that started” the conflict between him and

Neenah, and he acknowledged that Hill was scared to work

with him. R. 84-2, Call Tr., PageID 1852, 1857. At the end

of the call with Howe, Schramm began to say, “the day

that I come back to work that’s the day that . . .” before

trailing off and stating, “you know what, I’m going to let

Chris deal with it because Chris knows what’s in the wind

when I come back to work for [K]athy Hill.” Id. at PageID

1857-58. Haddock immediately ended the call with Howe.

Haddock then called Schramm back and told him

that his statement that Hill “knows what’s in the wind”

constituted a “threat” that “did not help” their case “at

all” and “probably cut [their] feet right off.” Id. at PageID

1858-59. Schramm denied that he meant the comment as

a threat and posited that “the thing that’s in the wind

with [K]athy Hill” is “the grievance.” Id. at PageID

1861. Schramm also emphasized that the accusations

against him were “complete bulls- - t,” to which Haddock

responded, “I hope you’re right.” Id. at PageID 1859.

Haddock expressed doubt that Neenah would “give [him]

the names of the people” who complained about Schramm

“if the people are feeling threatened.” Id. He stated,

however, that he would “file a grievance and an information

request” on Schramm’s behalf. Id.

Haddock alerted Trader that he would handle the

grievance for this second termination. On December

31, Schramm received his termination letter, which he

Appendix A

forwarded to Haddock that same day. Per the CBA,

Haddock had two days to file the grievance, excluding

weekends and holidays, thus placing the filing deadline on

January 4, 2022. On January 3, Haddock emailed Howe

a request for information and to extend the grievance

deadline, both of which Howe denied on January 5, one

day after the deadline’s passage. Haddock then sent

Schramm and Howe a letter informing them that USW

would not be pursuing a grievance in response to the

second termination.

Haddock testified that his decision not to file a

grievance on Schramm’s behalf was based on three factors:

(1) he found credible Howe’s assertions that Schramm had

engaged in threatening behavior; (2) Schramm admitted

that he had a list of five Neenah employees “who were the

objects of his anger”; and (3) Haddock believed Schramm’s

“in the wind” comment was a veiled threat against Hill.

R. 75-1, Haddock Decl., PageID 1182-83.

B. Procedural History

On March 2, 2022, Schramm filed suit against Neenah.

Schramm added USW as a party to the action on June

28. On March 8, 2023, Schramm filed his second and final

Amended Complaint against Neenah and USW, asserting

claims against Neenah and one count of breach of the duty

of fair representation (DFR), brought pursuant to Section

301 of the Labor Management Relations Act (LMRA),

against USW. Schramm and Neenah then reached a

settlement agreement, leaving USW as the sole remaining

defendant.

10a

Appendix A

Schramm and Neenah cross-moved for summary

judgment on March 29, 2024. On September 11, the district

court granted USW’s motion for summary judgment

and denied Schramm’s motion for summary judgment.

Schramm timely appealed.

II. ANALYSIS

The district court had federal question jurisdiction

under 28 U.S.C. § 1331 and we have jurisdiction to hear

the timely appeal under 28 U.S.C. § 1291.

We review a district court’s order granting summary

judgment de novo. King v. Steward Trumbull Mem’l

Hosp., Inc., 30 F.4th 551, 559 (6th Cir. 2022). Summary

judgment is proper only “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.” Id. (quoting

Fed. R. Civ. P. 56(a)). We view the facts in the light most

favorable to, and draw all reasonable inferences in favor

of, the nonmoving party. Kirilenko-Ison v. Bd. of Educ.

of Danville Indep. Schs., 974 F.3d 652, 660 (6th Cir. 2020).

Schramm brings a “hybrid” action under § 301 of

the LMRA, 29 U.S.C. § 185 consisting of two claims:

(1) breach of a collective bargaining agreement by the

employer and (2) breach of the duty of fair representation

by the union. Garrison v. Cassens Transp. Co., 334 F.3d

528, 538 (6th Cir. 2003). The two claims are inextricably

linked; the plaintiff cannot succeed in the action unless

he establishes both claims. Id. Here, however, the district

court ruled only on the DFR prong, and because that prong

is dispositive, it is the focus of this appeal.

11a

Appendix A

To demonstrate a violation of the DFR, a plaintiff must

show (1) that the duty applies, (2) that the union breached

the duty, and (3) that the breach caused the plaintiff’s

injury. See Vencl v. Int’l Union of Operating Eng’rs,

Local 18, 137 F.3d 420, 426 (6th Cir. 1998); accord James

v. Norfolk S. Ry. Co., No. 24-3275, 2025 U.S. App. LEXIS

18426, 2025 WL 2049553, at *8 (6th Cir. July 22, 2025)

(same). The parties agree that the duty applies, and do

not contest or discuss the issue of causation. Accordingly,

we focus exclusively on breach, which is the dispositive

issue on appeal.

A union is not obligated to file or prosecute grievances

that it deems meritless. Williams v. Molpus, 171 F.3d

360, 366-67 (6th Cir. 1999), overruled on other grounds,

Chapman v. United Auto Workers Loc. 1005, 670 F.3d 677

(6th Cir. 2012). A union must, however, “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 v. Sipes,

386 U.S. 171, 177, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967).

Accordingly, a “breach of the duty of fair representation

occurs” when “a union’s conduct toward a member of the

collective bargaining unit is arbitrary, discriminatory,

or in bad faith.” Merritt v. Int’l Ass’n of Machinists &

Aerospace Workers, 613 F.3d 609, 619 (6th Cir. 2010).

To prove a breach of the DFR, a plaintiff must show

arbitrariness, discrimination, or bad faith—he need not

demonstrate all three to succeed. Id. Here, Schramm

asserts that USW acted arbitrarily and in bad faith when

it failed to grieve his second termination.

12a

Appendix A

A. Vicarious Liability

Before evaluating Schramm’s claims, we address a

threshold issue—whether USW can be held vicariously

liable for the conduct of officials of its local unions.

Notably, Schramm has sued only USW, and not the two

local unions. The parties agree that, although the decision

over whether to file a grievance generally falls to the local

union, Haddock assumed responsibility over that decision

on behalf of USW.

In his reply brief, Schramm argues—for the first time

on appeal—that USW and its nondefendant local affiliates

should not be treated as distinct legal entities, and that

USW can be held liable for the conduct of officials of its

local affiliates. But Schramm’s principal brief lacks any

argument regarding vicarious liability. Its theories of

arbitrariness and bad faith are tied solely to Haddock’s

conduct. Schramm’s failure to raise the issue waives this

theory of liability. See Sanborn v. Parker, 629 F.3d 554,

579 (6th Cir. 2010) (“[A]rguments made to [this court] for

the first time in a reply brief are waived.”).

We therefore turn to Schramm’s claims, evaluating

whether USW breached its DFR based on Haddock’s

decision making and conduct.

B. Arbitrariness

A union “breach[es] the duty of fair representation

under the ‘arbitrary prong’” only “if the union’s conduct

can fairly be characterized as ‘so far outside a wide range

13a

Appendix A

of reasonableness’ that it is ‘wholly irrational.’” Merritt,

613 F.3d at 619 (quoting Air Line Pilots Ass’n, Int’l v.

O’Neill, 499 U.S. 65, 78, 111 S. Ct. 1127, 113 L. Ed. 2d 51

(1991)). A union’s conduct is irrational if it is “without a

rational basis or explanation.” Marquez v. Screen Actors

Guild, Inc., 525 U.S. 33, 46, 119 S. Ct. 292, 142 L. Ed. 2d

242 (1998). This deferential standard “gives the union

room to make discretionary decisions and choices, even

if those judgments are ultimately wrong.” Id. at 45-46.

Schramm argues that USW acted arbitrarily because

it failed to conduct an adequate investigation into the

allegations against him and, as a result, made an illinformed and unreasonable decision. A union “must

undertake reasonable investigation to defend a member

from employer discipline.” Walk v. P*I*E Nationwide, Inc.,

958 F.2d 1323, 1326 (6th Cir. 1992). This investigation must

be “independent,” and the union may not, for example,

“give up on an employee’s grievance solely because the

employer’s evidence indicates that the employee was at

fault for an incident.” Driver v. U.S. Postal Serv., Inc.,

328 F.3d 863, 869 (6th Cir. 2003). Nonetheless, the extent

to which a union must investigate a particular complaint

or issue depends on the surrounding circumstances, and

the union’s investigatory decisions are entitled to judicial

deference. See Walk, 958 F.2d at 1326-29. The key question

is whether the union acted “with sufficient information”

and made a rational decision based on that information.

Driver, 328 F.3d at 870; see Vaca, 386 U.S. at 194.

The district court concluded that USW did not act

arbitrarily, pointing to (1) evidence that officials of both

14a

Appendix A

Neenah and the local union raised concerns to Haddock

that Schramm was behaving in a threatening manner

and causing his coworkers to fear for their safety, and

(2) statements made by Schramm on his December 28

termination call with Haddock and Howe.

We turn to the record. As the court correctly

recognized, at the time of the December 28 termination

call, Haddock had already spoken not only with multiple

Neenah officials, including Hill and Howe, but also with

members and officials of the local union, including Trader

and Peters. All these individuals told Haddock that

Schramm was angry with several of his coworkers, and

that Schramm’s fellow employees at the Munising plant

were afraid of him and anxious about his return to work.

They also complained of excessive calls and messages

from Schramm, including messages asking about Hill’s

whereabouts, and reported that employees at the plant

were looking for places to “hide” should Schramm return

to work.

Critically, Schramm validated these concerns during

his termination call. Although he denied having a “hit list,”

Schramm confirmed that he had been angry with Hill

and four other Neenah coworkers, continued to criticize

those same coworkers, and conceded that Hill was “afraid

to work with [him].” R. 84-2, PageID 1852-53, 1856-57.

With Howe still on the line, Schramm said “the day that

I come back to work that’s the day that . . .” before simply

concluding that Haddock “knows what’s in the wind when

I come back to work for [K]athy Hill.” Id. at PageID 185758. Given the context, this statement can reasonably be

15a

Appendix A

interpreted as a threat against Hill. Schramm had just

expressed anger toward Hill and acknowledged that she

is “afraid” of him. Id. at PageID 1856-57. The statement

also accorded with Neenah’s proffered rationale for the

termination—that Schramm was threatening Neenah

employees and making them feel unsafe. Indeed, when

the statement was made, Haddock quickly ended the call

with Howe, called Schramm back, and told him that he

“probably cut our feet right off.” Id. at PageID 1858.

Based on Schramm’s statements on the call with

Haddock and Howe, as well as the information Haddock

collected from Neenah officials and local union officials, it

was not “wholly irrational” for Haddock to conclude that

Schramm would not prevail in his grievance. Merritt,

613 F.3d at 619 (quotation omitted). Haddock had a

sufficient basis to conclude that Schramm’s statements

would reasonably be perceived as threatening and would

validate Neenah’s concerns that Schramm posed a risk to

the physical safety of its employees. Because Haddock’s

decision was adequately informed and rational, it is

entitled to judicial deference. See Marquez, 525 U.S. at

45-46.

Schramm contends that the district court erred in

deeming these bases sufficient to justify USW’s decision

because the court made impermissible credibility

determinations and ignored its responsibility to resolve

the facts in the light most favorable to the nonmovant.

Specifically, Schramm argues that the district court

ignored his explanation that he did not intend to threaten

Hill and credited Haddock’s testimony that he found the

16a

Appendix A

statement threatening. That critique misapprehends

the standard. The question for the court is not whether

Schramm intended the statement as a threat or even

whether Haddock was convinced that Schramm intended

to threaten Hill. Rather, it is whether Haddock’s decision

not to file a grievance was sufficiently informed and

rational. See Driver, 328 F.3d at 870; Vaca, 386 U.S. at

194. Here, viewing the evidence in the light most favorable

to Schramm, the record makes clear that Haddock had

a reasonable basis, by the grievance filing deadline, to

conclude that any grievance filed on Schramm’s behalf

would lack sufficient merit to proceed to arbitration.

Haddock, in sum, acted within the wide range of discretion

afforded to him as a union representative. See Marquez,

525 U.S. at 45-46. On this record, we cannot say that the

district court erred in finding that Haddock’s conduct was

not arbitrary.

C. Bad Faith

Schramm also asserts that USW breached the DFR

because it acted in bad faith by failing to grieve his second

termination. As evidence of USW’s bad faith, Schramm

points to Haddock’s “inaction” in representing him, as

well as purported evidence of dishonest or deceptive

conduct, including (1) two instances in which Haddock

privately expressed support for Schramm’s termination

to Neenah officials, and (2) false or misleading statements

made by Haddock during the termination call. The district

court determined that Haddock did not act in bad faith,

reasoning that the record “does not show that Haddock’s

decision was made for an improper purpose.” R. 117, Op.

& Order, PageID 2369.

17a

Appendix A

“A union acts in bad faith when it acts with an improper

intent, purpose, or motive . . . encompassing fraud,

dishonesty, and other intentionally misleading conduct.”

Merritt, 613 F.3d at 619 (citation modified). Unlike with

the arbitrariness prong, we do not grant deference to

unions when assessing bad faith. Id. at 620. Nonetheless,

to show bad faith, a plaintiff must adduce “substantial

evidence of fraud, deceitful action or dishonest conduct.”

Amalgamated Ass’n of St., Elec. Ry. & Motor Coach

Emps. of Am. v. Lockridge, 403 U.S. 274, 299, 91 S. Ct.

1909, 29 L. Ed. 2d 473 (1971) (quoting Humphrey v. Moore,

375 U.S. 335, 348, 84 S. Ct. 363, 11 L. Ed. 2d 370 (1964)).

Misconduct can include “such gross mistake or inaction as

to imply bad faith.” Balowski v. Int’l Union, United Auto.,

Aerospace & Agric. Implement Workers of Am., 372 F.2d

829, 833 (6th Cir. 1967). And the misconduct must be tied

to some improper intent, purpose, or motive. Merritt, 613

F.3d at 619.

Schramm first addresses Haddock’s “inaction.”

Appellant Br. 36. Whether a union’s alleged misconduct,

including its inaction, constitutes bad faith “depends

upon the facts of each case.” See Balowski, 372 F.2d

at 834. Here, as discussed, Schramm has not provided

sufficient evidence that Haddock’s decision not to proceed

further with a grievance was unreasonable or improper

under the circumstances of this case. Before the second

termination, Haddock spoke with multiple local union

and Neenah officials who reported that they were afraid

of Schramm because of his threatening behavior. And

he heard Schramm, on the termination call, confirm his

animus toward a group of employees, including Hill, and

make what can reasonably be interpreted as a threat

18a

Appendix A

against Hill. Haddock obtained sufficient information

to deem Schramm’s grievance not meritorious, and his

decision not to file a grievance does not suffice to raise

an inference of bad faith.

Schramm next points to evidence that Haddock

supported his termination, including (1) an email from

Hill to Howe saying that upon stating her intention to stop

Schramm from reporting to work based on his threats,

Haddock “was very supportive and said [she] had to do

what was right for [her] and the Munising employees,” R.

79-5, Hill/Howe Email, PageID 1692, and (2) testimony

from Howe that Haddock “supported the company[‘s]

decision” to terminate Schramm “when [she] called him

and told him,” R. 77-7, Howe Dep., PageID 1498. This

evidence, Schramm argues, indicates that Haddock was

“complicit[]” in the plan to terminate him and, therefore,

failed to represent him in good faith. Reply Br. 21.

We review this evidence in context and under the bad

faith standard. By the time Haddock spoke with Hill,

he had already received reports from local union and

Neenah officials, including Trader, Peters, and Murk,

that Schramm’s fellow employees felt unsafe around him.

Haddock’s conversation with Howe occurred even later,

after he heard from Hill that she was anxious about her

physical wellbeing because of Schramm’s anger toward

her and his requests to find out her physical location.

Schramm does not explain how Haddock’s alleged support

evinces improper intent, purpose, or motive. See Merritt,

613 F.3d at 619. Schramm has provided no evidence that

Haddock’s alleged expression of support was motivated by

19a

Appendix A

anything other than the concerns raised by Hill and other

individuals regarding their personal safety, which was the

basis of his second termination and the issue Haddock

was responsible for processing. As the First Circuit

has recognized, a union’s decision to take an employee’s

“comments more seriously than he might have wished” is

not evidence of bad faith when that union is acting with

the purpose of “protect[ing] its [other] members from

perceived threats to their safety”—which often requires

unions to “balance . . . competing interests.” Alston v. Int’l

Ass’n of Firefighters, Loc. 950, 998 F.3d 11, 27 (1st Cir.

2021). And contrary to Schramm’s suggestion, the record

evidence does not support the contention that Haddock

actively “encouraged a separation” or participated in

the decision to terminate Schramm. Appellant Br. 12.

Haddock’s expression of support, in short, does not meet

the criteria for bad faith.

Finally, Schramm points to Haddock’s conduct on

his December 28 termination call. In response to Howe

informing Schramm of his termination, Haddock stated

that the termination was “out of the blue” for him and

asked “what proof” Howe had to justify the decision to

terminate. R. 84-2, Call Tr., PageID 1847-48. As Schramm

notes, the record shows that Haddock knew about the

termination one week prior and had expressed support.

Haddock also told Schramm, immediately after the call

with Howe, that he would file a grievance on his behalf,

which he did not do. Schramm argues that Haddock’s

deceptive conduct on the call—when viewed in concert

with Haddock’s prior knowledge of the termination,

expression of support to Hill and Howe, and failure to file

20a

Appendix A

a grievance for Schramm—provides sufficient evidence to

create a triable issue as to bad faith. Haddock responds

that he was surprised by Howe’s decision “not . . . [to] relate

the company’s specific concerns and allow Schramm to

respond,” but rather to immediately “beg[in] the [call] by

telling Schramm that” he was being terminated. R. 75-1,

Haddock Decl., PageID 1176.

Reasonably construing the evidence in the light

most favorable to Schramm, we assume for purposes of

this appeal, that Haddock was pretending not to have

prior knowledge of the termination when he described

it as “out of the blue,” asked Howe questions to which

he already knew the answer, and told Schramm that

he would grieve the termination. In Williams, we held

that the plaintiff had presented sufficient evidence for a

jury to conclude that the union acted in bad faith or with

discriminatory intent in its handling of the negotiation

of a rider to a collective bargaining agreement. 171 F.3d

at 367. Among other evidence, the plaintiff there alleged

that the union likely secured approval of the agreement

through misrepresentations about who ratified the rider

and who demanded the rider’s endtail provision. Id. By

contrast, even if Haddock misled Schramm about his prior

knowledge of and apparent support for the termination,

that conduct—while inappropriate—would not constitute

the sort of serious, material misrepresentation that can

suffice to raise an inference of bad faith. See also Alicea

v. Suffield Poultry, Inc., 902 F.2d 125, 130 (1st Cir. 1990)

(explaining that a misrepresentation must be “serious” and

“lack rational justification or [be] improperly motivated”

to show bad faith); Carr v. Air Line Pilots Ass’n, Int’l,

21a

Appendix A

866 F.3d 597, 602 (5th Cir. 2017) (explaining that bad faith

requires “sufficiently egregious” union action) (quotation

omitted). And, most importantly, Schramm does not point

to or identify any improper intent, purpose, or motive

underlying Haddock’s apparent deception. See Merritt,

613 F.3d at 619-20. To the contrary, Schramm argues that

Haddock acted out of “irrational fear.” Appellant Br. 36.

Fear for the safety of other employees, including other

union members at the Munising plant, is not an improper

or illegitimate motive. See Alston, 998 F.3d at 27.

On this record, we cannot say that Schramm has

provided “substantial evidence of fraud, deceitful action or

dishonest conduct” evincing improper intent, purpose, or

motive. Lockridge, 403 U.S. at 299. The district court did

not err, therefore, in granting summary judgment to USW

on the issue of bad faith. Nor did it err in determining

that USW’s actions were not arbitrary. Schramm has

failed to adduce evidence that USW breached its duty of

fair representation.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment

of the district court.

22a

APPENDIX B —Appendix

OPINIONBAND ORDER OF

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF

MICHIGAN, NORTHERN DIVISION,

FILED SEPTEMBER 11, 2024

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

No. 2:22-cv-47

Honorable Paul L. Maloney

THOMAS SCHRAMM,

Plaintiff,

-vNEENAH PAPER MICHIGAN INC. AND UNITED

STEEL, PAPER AND FORESTRY, RUBBER,

MANUFACTURING, ENERGY, ALLIED

INDUSTRIAL AND SERVICE WORKERS

INTERNATIONAL UNION, AFL-CIO,CLC,

Defendants.

OPINION AND ORDER GRANTING DEFENDANT

UNION’S MOTION FOR SUMMARY JUDGMENT

AND DENYING PLAINTIFF’S MOTION FOR

SUMMARY JUDGMENT

Plaintiff Thomas Schramm sued his employer

Neenah Paper and the United Steel Workers, the union

representing employees at the Neenah Paper facility

23a

Appendix B

in Munising, Michigan. Plaintiff contends the union

breached its duty by failing to file a grievance on his behalf

after Neenah Paper terminated him in December 2021.

Plaintiff filed a motion for summary judgment covering

all of his causes of action against both defendants (ECF

No. 77). The union filed a motion for summary judgment

addressing the duty of fair representation claim (ECF No.

75). Because the Court concludes the union’s decision not

to file a grievance was neither arbitrary nor made in bad

faith, the Court will grant Defendant’s motion and will

deny Plaintiff’s motion in part.1

A trial court should grant a motion for summary

judgment only in the absence of a genuine dispute of any

material fact and when the moving party establishes it

is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(a). The moving party bears the burden of showing that

no genuine issues of material fact exist. Celotex Crop. v.

Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d

265 (1986). To meet this burden, the moving party must

identify those portions of the pleadings, depositions,

answers to interrogatories, admissions, any affidavits,

and other evidence in the record, which demonstrate the

lack of genuine issue of material fact. Fed. R. Civ. P. 56(c)

1. Plaintiff and Neenah Paper have reached a settlement.

Contemporaneous with this Opinion and Order, the Court grants

a Rule 21 motion for dismissal and will dismiss Defendant Neenah

Paper. In this Opinion and Order, the Court resolves only the portion

of Plaintiff’s motion for summary judgment concerning his claim

against Defendant United Steel Workers.

24a

Appendix B

(1); Pittman v. Experian Info. Sols., Inc., 901 F.3d 619,

627-28 (6th Cir. 2018). The moving party may also meet its

burden by showing the absence of evidence to support an

essential element of the nonmoving party’s claim. Holis

v. Chestnut Bend Homeowners Ass’n, 760 F.3d 531, 543

(6th Cir. 2014).

When faced with a motion for summary judgment, the

nonmoving party “must set forth specific facts showing

that there is a genuine issue for trial.” Pittman, 901 F.3d

at 628 (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).

The court must view the facts and draw all reasonable

inferences from those facts in the light most favorable

to the nonmoving party. Maben v. Thelen, 887 F.3d 252,

263 (6th Cir. 2018) (citing Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89

L. Ed. 2d 538 (1986)). In resolving a motion for summary

judgment, the court does not weigh the evidence and

determine the truth of the matter; the court determines

only if there exists a genuine issue for trial. Tolan v.

Cotton, 572 U.S. 650, 656, 134 S. Ct. 1861, 188 L. Ed. 2d

895 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S.

242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). The

question is “whether the evidence presents a sufficient

disagreement to require submission to the jury or whether

it is so one-sided that one party must prevail as a matter

of law.” Anderson, 477 U.S. at 251-252.

25a

Appendix B

II.

The parties generally agree about the following facts

leading up to Plaintiff’s termination in December 2021.

In 2021, Plaintiff worked for Neenah Paper at the

plant in Munising, Michigan. Neenah Paper negotiated

a collective bargaining agreement with United Steel,

Paper and Forestry, Rubber, Manufacturing, Energy,

Allied Industrial and Service Workers International

Union AFL-CIO, CIC (United Steel Workers or USW).

USW negotiated the collective bargaining agreement on

behalf of Local 2-87 (production workers) and Local 2-96

(maintenance workers). Neenah Paper employed Plaintiff

as the fire chief at the plant. Plaintiff was a member of

USW, District 2, Local 2-96.

In February 2021, a chemical spill occurred at the

Munising facility. Someone at the plant reported the spill

to the local 9-1-1 dispatch around 8:41 a.m. Emergency

responders arrived around 8:45 a.m. And, around 10:00

a.m., Plaintiff reported the spill to the State of Michigan’s

Department of Environment, Great Lakes, and Energy.

Because of his phone call, Neenah Paper terminated

Plaintiff effective March 1, 2021. Through a union

grievance, Plaintiff contested his termination. Plaintiff

also filed a lawsuit in May 2021. Plaintiff and Neenah

Paper eventually resolved the grievance. On October

6, 2021, Neenah Paper issued a third-stage grievance

response that gave Plaintiff back pay and reinstated

26a

Appendix B

Plaintiff allowing him to return to work on October 18,

2021. Plaintiff and Neenah Paper subsequently agreed to

settle the lawsuit also agreed that Plaintiff would return

to work on January 3, 2022.

On December 28, 2021, Plaintiff participated in a

phone call with Chris Haddock, a union representative,

and Monica Howe, the vice president of human resources

for Neenah Paper. Howe informed Plaintiff that he would

not be permitted to return to work in January and that

he was terminated. Howe justified the decision based on

Plaintiff’s concerning behavior since mid-October. Neenah

Paper sent Plaintiff a termination letter. By email to

Neenah Paper, USW requested an extension of time to file

a grievance and also requested the documentation Neenah

Paper used to support its decision, including statements

by workers who felt threatened by Plaintiff. Neenah

Paper did not agree to either request. USW sent Plaintiff

a letter explaining that it would not be filing a grievance

challenging the termination on Plaintiff’s behalf.

Plaintiff filed this lawsuit in March 2022. In April

2023, Plaintiff filed a second amended complaint (ECF

No. 48). Against Neenah Paper, Plaintiff pleads a claim for

violations of Michigan’s Whistleblower Protection Act, a

claim for breach of the settlement agreement, and a claim

for breach of the collective bargaining agreement (CBA).

Against USW, Plaintiff pleads a claim for violation of the

duty of fair representation.

27a

Appendix B

III.

Our Supreme Court describes the combination of

a claim against an employer for breach of a collective

bargaining agreement, a violation of § 301 of the Labor

Management Relations Act, and a claim against a union

for breach of the duty of fair representation, a claim

implied from the scheme of the National Labor Relations

Act, as a hybrid suit. See Reed v. United Transp. Union,

488 U.S. 319, 328, 109 S. Ct. 621, 102 L. Ed. 2d 665 (1989).

Ordinarily, to bring a claim against an employer for breach

of a CBA, the employee must first exhaust any grievance or

arbitration remedies provided for in the CBA. DelCostello

v. Int’l Bhd. of Teamsters, 462 U.S. 151, 163, 103 S. Ct.

2281, 76 L. Ed. 2d 476 (1983). That rule, however, does not

work when the union representing the employee acts in

a discriminatory or arbitrary manner or in bad faith and

breaches its duty of fair representation. Id. at 164. “In such

an instance, an employee may bring suit against both the

employer and the union, notwithstanding the outcome or

finality of the grievance or arbitration proceeding.” Id.

(citations omitted). The hybrid lawsuit contains two causes

of action, one against the employer and one against the

union, and “the two claims are inextricably linked.” Id.

To prevail against either the employer or the union, the

employee must prove that the employer breached the CBA

and the union breached its duty of fair representation.

White v. Anchor Motor Freight, Inc., 899 F.2d 555, 55960 (6th Cir. 1990) (quoting Bagsby v. Lewis Bros. Inc. of

Tennessee, 820 F.2d 799, 801 (1987)). At least for the claim

28a

Appendix B

against the union, the plaintiff must also demonstrate that

the breach of duty caused an injury. Black v. Ryder/P.I.E.

Nationwide, Inc., 15 F.3d 573, 585 (6th Cir. 1994); see

Garrison v. Cassens Transp. Co., 334 F.3d 528, 539 (6th

Cir. 2003) (citing Dushaw v. Roadway Express, Inc., 66

F.3d 129, 32 (6th Cir. 1995)).

A union’s duty of fair representation derives from

the union’s status as the exclusive representative of the

employees of a bargaining unit. Vaca v. Sipes, 386 U.S. 171,

177, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967); Driver v. United

States Postal Serv., 328 F.3d 863, 868 (6th Cir. 2003). As

the exclusive representative, a union owes its members a

duty to represent those members “adequately as well as

honestly and in good faith.” Ryder, 15 F.3d at 584 (quoting

Air Line Pilots Ass’n Int’l v. O’Neill, 499 U.S. 65, 75, 111

S. Ct. 1127, 113 L. Ed. 2d 51 (1991)). “‘[A] union breaches

its duty of fair representation if its actions are either

arbitrary, discriminatory, or in bad faith.’” Id. (quoting

O’Neill, 499 U.S. at 67) (emphasis added in Ryder).

In his motion, Plaintiff argues that USW’s decision

not to file a grievance was both arbitrary and made in bad

faith. A plaintiff demonstrates bad faith by showing that

the union acted, or failed to act, “with an improper intent,

purpose or motive ... encompass[ing] fraud, dishonesty,

and other intentionally misleading conduct.” Int’l Union,

United Auto., Aerospace and Agric. Implement Workers

of America v. Nat’l Labor Relations Bd., 844 F.3d 590, 604

(6th Cir. 2016) (alterations in Int’l Union; quoting Meritt

v. Int’l Ass’n of Machinists and Aerospace Workers, 613

F.3d 609, 619 (6th Cir. 2010)). For allegations of bad faith,

29a

Appendix B

courts engage in a “subjective inquiry” and look for “‘proof

that the union acted (or failed to act) due to an improper

motive.’” Bishop v. Air Line Pilots Ass’n Int’l, 5 F.4th 684,

694 (7th Cir. 2021).

“[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 (cleaned up). “This ‘wide range of reasonableness’

gives the union room to make discretionary decisions and

choices, even if those judgment are ultimately wrong.”

Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 45,

119 S. Ct. 292, 142 L. Ed. 2d 242 (1989). Thus, a plaintiff

must show that the union’s acts were “wholly irrational,” a

standard described as “extreme arbitrariness.” Garrison,

334 F.3d at 539 (citation omitted). “Mere negligence on

the part of a union does not satisfy this requirement.

That is, ‘an unwise or even an unconsidered decision by

the union is not necessarily an irrational decision.’” Id. at

538-39 (all citations omitted). When reviewing a union’s

actions for arbitrariness, courts must be deferential to the

union. Merritt, 613 F.3d at 621. However, when reviewing

a union’s actions for bad faith, deferential review is not

appropriate. Id.

The Court considers whether USW acted arbitrarily

or bad faith when it declined to file a grievance on

Plaintiff’s behalf. For Defendant USW’s motion, the Court

views the evidence in the light most favorable to Plaintiff.

The following facts have support in the record.

30a

Appendix B

In October 2021, Neenah Paper resolved Plaintiff’s

grievance and agreed to allow Plaintiff to return to work

on October 18, 2021. Plaintiff, however, had a previously

scheduled vacation (ECF No. 77-2 Schramm Dep. at

128 PageID.1315) and he disputed the calculation of his

backpay (id. at 132 PageID.1316). Plaintiff worked with

Josh Trader and Chris Haddock to address the backpay

calculations (id. at 132-33 PageID.1316-17).

In the fall of 2021, Josh Trader held the position of

president for Plaintiff’s union (ECF No. 77-10 Trader Dep.

at 10-11 PageID.1568). Plaintiff acknowledged that when

he was initially terminated in May 2021, he identified to

Trader five people at Neenah Paper who needed to be fired

(ECF No. 77-2 Plaintiff Dep. at 170 PageID.1326; ECF No.

77-10 Trader Dep. at 69 PageID.1582). About the time that

Neenah Paper agreed to reinstate Plaintiff, Plaintiff began

complaining to Trader about the backpay calculations

(Trader Dep. at 36 PageID.1374). Trader recalled that

the backpay issue seemed to “trigger” Plaintiff and the

dispute seemed to “snowball” to other disputes with

Neenah Paper (id. at 42-43 PageID.1576). Trader thought

that the situation just “add[ed] to [Plaintiff] already being

upset with people and angry that these people for what

they did to him” (id. at 43 PageID.1576). Trader recalled

Plaintiff “was still pissed off at Kathy, Brian, Curt, Brad

and Pat” (id. at 45 PageID.1576). 2

Soon after the time that Neenah Paper resolved

the grievance with Plaintiff, Trader began to hear

2. Presumably the list refers to Kathy Hill, Brian Houghton,

Curt Linstrom, Brad Jones and Pat McDonald.

31a

Appendix B

concerns from union members about Plaintiff’s return

to work (Trader Dep. at 46 PageID.1577). Some of

the individuals heard that Plaintiff had a hit list (id.

at 47-48 PageID.1577). Trader testified that he heard

concerns from “dozens and dozens of people” (id. at 46

PageID.1577). He heard concerns from people on all

three shifts (id. at 47 PageID.1577). Trader recalled that

people were concerned about their safety at work; they

did not know if Plaintiff “is going to fly off the handle, be

violent, verbal, whatever” (id. at 50 PagerID.1578). Trader

passed these concerns along to Chris Haddock (id. at 49

PageID.1577). Trader told Haddock because Trader was

concerned for the safety of the people at the facility (id.

at 53 PageID.1578).

Other union officials heard similar rumors from

individuals at the facility. Michael Peters was the

president of the Local 87 (ECF No. 77-9 Peters Dep. at 7

PageID.1550). Peters testified that people at the facility

approached him with concerns about Plaintiff returning

to work (id. at 13-14 PageID.1552). Peters recalled hearing

that Plaintiff had a list of five people in management with

whom he was unhappy (id. at 26 PageID.1555). Peters

heard from enough people that he reported their concerns

to Chris Haddock (id. at 21 PageID.1553). Greg Murk

became the fire chief after Plaintiff’s initial termination

(ECF No. 77-8 Murk Dep. at 5 PageID.1528). Murk

recalled hearing that Plaintiff had a list of five people in

management positions with whom Plaintiff had issues (id.

at 14 PageID.1531). Murk heard from enough people he

raised the concerns with the union representative (id. at

15 PageID.1531).

32a

Appendix B

Chris Haddock worked as a representative for USW

in 2021 (ECF No. 77-4 Haddock Dep. at 5 PageID.1369).

Haddock corroborated portions of Trader’s, Peters’

and Murk’s testimony. Haddock recalled hearing from

Trader that dozens of people had expressed concerns

about what would happen when Plaintiff returned to

work (id. at 21 PageID.1373). Haddock recalled hearing

that Plaintiff had a list of five people (id.). When Haddock

asked Trader for the names of people who had approached

Trader, Trader declined to provide the names because

the people were concerned about repercussions from

Plaintiff (id. at 22 PageID.1374). In addition to hearing

from Trader, Haddock also heard from Peters and Murk

that individuals were expressing concerns about Plaintiff

(id. at 26-27 PageID.1375; at 42-43 PageID.1379).

During the relevant events, Kathy Hill worked at the

Munising facility as the human resources manager (ECF

No. 77-5 Hill Dep. at 9 PageID.1423). Hill testified that, in

mid-October, she began to receive reports about Plaintiff

from the two union presidents, Trader and Peters (id. at

62 PageID.1436). Hill also received reports about Plaintiff

from Murk (id. at 105-06 PageID.1447). Hill passed the

reports, concerns about what would happen when Plaintiff

returned to work, along to Brian Houghton (id. at 65-66

PageID.1437). Hill also passed the reports along to Monica

Howe (id. at 77-78 PageID.1440; at 132 PageID.1453).

Brian Houghton worked as the manager of the Munising

facility (ECF No. 77-6 at 8 PageID.1462). Houghton recalled

learning about concerns regarding Plaintiff’s return to

work in late October or early November (id. at 23-24

33a

Appendix B

PageID.1466). Houghton heard some of the concerns from

Kathy Hill (id. at 30 PageID.1468) and from Josh Trader

(id. 34-37 PageID.1469-70). Houghton also heard about

the concerns from Mike Peters (id. at 38 PageID.1470)

and Greg Murk (id. at 40-41 PageID.1470-71). Ultimately,

Houghton passed the concerns along to corporate to

determine whether Plaintiff should be terminated (id. at

52 PageID.1473).

In 2021, Monica Howe worked for Neenah Paper as

vice president of human resources (ECF No. 77-7 Howe

Dep. at 1479). Howe testified that she heard from Kathy

Hill, Josh Trader and Mike Peters that many people had

concerns about Plaintiff returning to work (id. at 86-87

PageID.1498). Ultimately, Howe at least contributed in

part to the decision to terminate Plaintiff (id. at 83-84

PageID.1497). Howe recalled that she made the decision on

December 21, 2021 (id. at 189 PageID.1524). Howe drafted

a talking points document for a conference call that would

include Plaintiff (ECF No. 79-6 PageID.1696). Howe sent

the document to Chris Haddock (id. PageID.1695).

The conference call occurred on December 28,

2021, and included Howe, Plaintiff, and Haddock. Howe

informed Plaintiff he was terminated (ECF No. 77-2

Schramm Dep. at 168 PageID.1325). Among the reasons

for his termination, Howe identified the hit list (id. at

169 PageID.1326). At his deposition, Plaintiff disagreed

with the characterization of it as a hit list (id.). Plaintiff

then proceeded to name five people, the ones “I thought

I needed to talk to and say, hey, I’m back, let’s just put

this behind us, move forward for the better of Neenah”

34a

Appendix B

(id.). Plaintiff admitted that these were the same five

people he told Trader in May 2021 needed to be fired (id.).

Plaintiff also admitted that during the meeting he said

that Chris “knows what’s in the wind when I come back

to work for Kathy Hill, right?” (id. at 170 PageID.1326).

Plaintiff denied the statement was a threat (id.). Haddock

interpreted Plaintiff’s statement as a threat and, referring

to the filing of a grievance, told Plaintiff that the statement

“cut off our legs” (Haddock Dep. at 71 PageID.1386).

Haddock made the decision not to file a grievance.

Defendant USW attaches Haddock’s lengthy affidavit to

its motion for summary judgment (ECF No. 75-1 Haddock

Aff. PageID.1173-84). Haddock summarizes, from his

perspective and in much detail, the events leading up

to and following the December 28 phone call. Notably,

Haddock states that this situation was novel in that (1)

a “significant number of unit employees expressed fear

of a coworker,” (2) “the accounts of events coming from

labor and management were substantially consistent in

almost every detail,” and (3) top corporate officials were

involved rather than local facility management (id. ¶ 5556 PageID.1181).

Haddock identifies three factors that lead to his

conclusion not to file a grievance to challenge Plaintiff’s

termination (id. ¶ 58 PageID.1182). First, Howe made

an “unequivocal representation” that she had proof of

Plaintiff’s threatening behavior, including statements

from hourly employees and salaried employees (id.)

Haddock’s discussions with individuals at the facility made

Howe’s statement plausible (id.). Haddock found credible

35a

Appendix B

Howe’s reluctance to provide the names of individuals who

expressed concerns about Plaintiff (id.). Haddock had no

reason to doubt that Howe actually had documentation

to support her claim (id. ¶ 60 PageID.1182). Second,

during the phone call Plaintiff identified five individuals

which Haddock viewed as confirmation that Plaintiff had

a list (id. ¶ 62 PageID.1182; see Haddock Dep. at 86-87

PageID.1390). Haddock did not find Plaintiff’s explanation

of the list—he wanted to shake hands—to be credible (id.

¶ 63 PageID.1183). Haddock did not think that Plaintiff’s

explanation would be believed at a grievance hearing (id.).

Third, during the phone call, Plaintiff made a comment

about Kathy Hill that could be interpreted as threat (id.

¶ 64 PageID.1183).

Defendant USW has established a lack of genuine issue

of material fact that the decision to not file a grievance was

not made arbitrarily. Plaintiff has not put forth sufficient

evidence to create a genuine issue of material fact that

USW made the decision arbitrarily.

The record contains sufficient evidence to support the

reasons Haddock identified for not filing the grievance.

Haddock had been told from multiple sources that

employees at the plant were concerned about what would

happen when Plaintiff returned to work. He had this

information before the December 28 meeting. When

Haddock asked Trader for names, Trader offered a logical

reason for not giving those names. When Haddock made

similar request for information after the December 28

36a

Appendix B

meeting, Howe declined for the same reason, concern

for the safety of the individuals. The record establishes

that Defendant USW made “a reasonable investigation to

defend a member from employer discipline.” Walk v. P*I*E

Nationwide, 958 F.2d 1323, 1326 (6th Cir. 1992). Plaintiff

points out that the record contains no such documentation

or statements. But, Haddock had to make a decision about

filing a grievance shortly after the December 28 call with

the information he had available at the time. Plaintiff has

not put forth any evidence to show that Haddock should

have doubted the existence of the documentation.

During the phone call, Haddock heard Plaintiff list five

names and also heard Plaintiff make the statement about

Kathy Hill. Haddock did not find Plaintiff’s explanation

for his list of five names to be credible. Haddock thought

the statement about Hill constituted a threat. The record

contains Plaintiff’s explanations for his statements. For

these motions, the Court does not decide what Plaintiff

meant by his words as the parties have a factual dispute

about Plaintiff’s intent. The Court may, however, consider

Haddock’s interpretation of those statements, which

factored into his decision not to file a grievance. Plaintiff

has not put any evidence into the record to suggest that

Haddock had some other interpretation of the statements

or that Haddock’s interpretation of the statements was

not plausible.

Plaintiff argues that the union was “absolutely entitled

to the names of witnesses,” citing Alcoa Corporation,

25-CA-219925, 370 NLRB No. 107 (Apr. 16, 2021) (ECF

37a

Appendix B

No. 77 at 26 PageID.1278). 3 The opinion does not support

Plaintiff’s assertion. In that opinion, the witnesses

were formally interviewed as part of an investigation

and the parties stipulated that none of the employees

requested confidentiality during the interviews (ECF

No. 79-10 PageID.1715). In footnote 3, the panel agreed

with the Administrative Law Judge’s conclusion that

the information sought, the names of the witnesses,

was relevant and necessary to the grievance and that

the “respondent failed to demonstrate any legitimate

confidentiality interests that outweighed the Union’s need

for the information” (id. PageID.1714). Here, Trader and

Howe justified their denial of Haddock’s requests for

names because of confidentiality and safety concerns.

Plaintiff’s bare assertion of entitlement, relying only on

the Alcoa opinion, does not overcome the justification for

withholding the names.

On this record, Haddock’s decision falls within the

range of reasonableness. Plaintiff has not put forth

sufficient evidence to create a genuine issue of material

fact that the Haddock’s decision was wholly irrational.

Defendant USW has also established a lack of genuine

issue that the decision not to file a grievance was not

made in bad faith. Again, for Defendant’s motion the

Court views the evidence in the light most favorable to

Plaintiff. Haddock identified the reasons he chose not to

3. Plaintiff attached a copy of the opinion as an exhibit (ECF

No. 79-10 PageID.1714).

38a

Appendix B

file a grievance. Those reasons undermine the conclusion

that Haddock made the decision for an improper motive.

Plaintiff has not put forth evidence to support the

conclusion that Haddock made the decision in bad faith

or even to create a genuine issue of material fact to

avoid summary judgment in Defendant’s favor. Plaintiff

contends that Haddock was “in on the plan” to terminate

Plaintiff (ECF No. 77 at 26 PageID.1278). While Haddock

did receive Howe’s talking points document in advance

of the telephone call, that fact does not establish or even

permit the inference that Haddock participated in a plan

to terminate Plaintiff. Haddock explained in his affidavit

that he expected, during the telephone call, that Howe

would provide details about Plaintiff’s inappropriate

behavior and that Plaintiff would have an opportunity to

respond (Haddock Aff. ¶ 21 PageID.1176). When Howe

did not provide that information during the telephone call,

Haddock sought the information from her. Additionally,

two of the factors that contributed to Haddock’s decision

not to file a grievance were statements Plaintiff made

during the phone call. The fact that Trader and Peters,

the two union presidents, passed along concerns of union

members does not show that Haddock’s decision was made

for an improper purpose.

Because the Cour t concludes that Defendant

has demonstrated it did not breach the duty of fair

representation, the Court need not consider or determine

whether Neenah Paper violated the terms of the collective

bargaining agreement.

39a

Appendix B

Plaintiff argues that Defendant USW relies extensively

on evidence that cannot be considered at summary

judgment. More specifically, Plaintiff contends that USW

relies on inadmissible hearsay.

At the summary judgment stage, parties do not have

to present evidence in a form that would be admissible

at trial. Celotex Corp., 477 U.S. at 324; Alexander v.

CareSource, 576 F.3d 551, 558 (6th Cir. 2009). The party’s

burden is put forth sufficient evidence that would be

admissible at trial. Alexander, 576 F.3d at 588. Hearsay

refers to statements made by someone other than the

declarant that is offered to prove the truth of matter

asserted. Fed. R. Evid. 801(c). Because the statement

by the declarant could not be admitted at trial, hearsay

statements cannot be considered at summary judgment.

See Carter v. Univ. of Toledo, 349 F.3d 269, 274 (6h Cir.

2003).

The Court declines to exclude from consideration all

of testimony from witnesses that summarize what other

employees said to the witnesses. Plaintiff makes this

hearsay challenge as a blanket statement and does not

point to any particular evidence presented by Defendant.

And, Plaintiff does not identify what truths the statements

can and cannot be used to prove. Likely, the Court could

not consider Trader’s testimony that employees were

reporting that Plaintiff had a hit list to prove that Plaintiff

had a hit list. But, the fact that Plaintiff had a list of five

people with whom he was upset and wanted fired could

40a

Appendix B

be considered for summary judgment purposes because,

at his deposition, Plaintiff admitted to telling this fact to

Trader in May 2021. Likely, the Court could not consider

Trader’s and Peters’ recollections of what other employees

were saying to prove that Plaintiff posed a threat to the

workplace. But, the Court could consider their testimony

for other reasons. The Court might be able to consider

the testimony to explain why Trader and Peters made the

reports to Neenah Paper and to Haddock.

IV.

Plaintiff contends Defendant USW breached its

duty of fair representation by failing to file a grievance

challenging Plaintiff’s December 2021 termination. To

show the breach of duty, Plaintiff needs to establish that

the decision not to file a grievance challenging Plaintiff’s

termination was made arbitrarily or in bad faith. Chris

Haddock, the union representative, explained why he did

not think Plaintiff could prevail through a grievance or in

arbitration and concluded that filing the grievance would

be futile. Haddock’s reasoning supports the conclusion

the decision was not made arbitrarily. Even if Plaintiff

could show that the reasons Neenah Paper gave for

the termination were not ultimately supported by any

evidence, that fact would not show that Haddock acted

in bad faith or with some improper purpose. Haddock

had to make a decision about filing a grievance with the

information available to him at the time. Accordingly,

the Court will grant Defendant’s motion for summary

judgment and will deny Plaintiff’s motion for summary

judgment.

41a

Appendix B

ORDER

For the reasons provided in the accompanying

Opinion, the Court GRANTS Defendant United Steel

Worker’s motion for summary judgment (ECF Nos. 75)

and DENIES Plaintiff Schramm’s motion for summary

judgment (ECF No. 77).

IT IS SO ORDERED.

Date: September 11, 2024

/s/ Paul L. Maloney

Paul L. Maloney

United States District Judge

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.