According to the Court’s opinion, the employer frequently
recorded conversations between employees and with customers. The plaintiff was suspected of shirking work
and falsifying his time card on December 4.
An investigation could not substantiate that he had performed the work
he claimed on his time card to have performed on the afternoon in
question. After he was questioned, he
requested another employee to modify a work ticket to reflect that he had
performed certain work recorded on December 9 on December 4. However, there were recorded conversations
about the December 9 work which called that version into question. Then, the employee claimed that he had
performed the work on both dates.
Then, a caller reported that the plaintiff had performed
work on their property on December 4 (and later substantiated that with a
written statement). However, after listening
to a recording of that conversation, the employer and union believed that the
plaintiff was the caller. Then, the
plaintiff reported to the union that he had performed a third work request on
that afternoon as well. A union officer
attempted to recreate the plaintiff’s version of events, but found it to be
physically impossible to have occurred as he had described. For instance, it believed that he would have
had to have driven his truck to have gotten all of the work done as described,
but the GPS showed that his truck never moved that afternoon. In the
meantime, another employee accused him of inappropriate conduct, and of trading
company equipment for illegal drugs.
The Company decided to terminate his employment and the grievance process
ensued. The plaintiff was awarded
unemployment compensation, but the union officers voted to not pursue
arbitration of his claim because they believed that it would be fruitless and
never provided the employer with written statements it had obtained from the
plaintiff or his alleged witnesses.
Finally, the plaintiff reported to the Sheriff’s office that
he had been threatened by the co-worker who had accused him of inappropriate
conduct and taking illegal drugs. A
deputy contacted the HR manager and wrote down that she was told that the
plaintiff had been fired because there had been allegations that he was trading
parts for illegal drugs. The plaintiff
filed suit claiming that he had been terminated without just cause under the
bargaining agreement (the §301 claim), that the union had failed to fairly represent
him, and that the HR manager had defamed him by statements made to the union
and to the deputy sheriff. The trial
court granted summary judgment to the employer.
In order to
prevail on his hybrid claim against the employer and the union, the plaintiff
was required to prevail on both his
§301 claim and his fair representation claim.
Because the plaintiff could not prevail on his fair representation
claim, the court never addressed whether his termination had been for “just
cause” under the bargaining agreement. “A plaintiff may prove breach of duty by
showing that ‘the union’s actions or omissions during the grievance process
were arbitrary, discriminatory, or in bad faith.’” With respect to a union acting arbitrarily, a
plaintiff must prove that the union’s “conduct “is so far outside a wide range
of reasonableness as to be irrational.”
Because the union here had conducted its own investigation, reviewed and
reasonably weighed the evidence and consulted with the international union, its
actions could not be deemed arbitrary.
Its internal investigation need only be reasonable, not perfect. “[U]nion agents are not lawyers,” and “mere
negligence or poor judgment” alone is not sufficient to prove breach of duty. The union had requested and reviewed all of
the employer’s evidence, attempted its own re-creation of the alleged events
and reasonably determined that the plaintiff’s version was not credible even if
supported by written witness statements and even if the union did not
personally interview those witnesses.
There was no evidence that a more thorough investigation by the union
would have changed its decision.
The Court also rejected the plaintiff’s argument that he was
unfairly excluded from the grievance process.
The union’s policy was to exclude grievants from the step 3 meetings and
the employer refused to permit him back onto its property after his
termination. Otherwise, the grievant
was kept informed of the process and was regularly updated. In any event, a “union’s mere negligence in
keeping the grievant informed about the grievance process was not enough to
prove breach of duty.”
The union’s refusal to contest more vigorously the employer’s
evidence was also not inappropriate. The
recordings of the telephone conversations which attempted to substantiate the
plaintiff’s version of events reasonably “posed an insurmountable hurdle” to
prevailing in any arbitration. It was
not irrational to believe that none of the evidence provided by the plaintiff would
have caused the employer to reconsider its decision.
There was also no evidence that the union’s actions were
motivated by discrimination or that he was treated differently than
substantially similar grievants. The
Court also rejected the bad faith argument even though the plaintiff had been
removed as a union steward because of a belief that he was undermining the
union’s business manager. The Court also
found that the union officer’s desire for a non-union management position at
the employer was insufficient evidence of bad faith in the absence of proof of personal
animosity.
As for the defamation claims, the court found that the
alleged statements to the deputy sheriff by the HR Manager could not be
defamatory because the plaintiff himself had relayed substantially similar
information to the deputy approximately 30 minutes earlier. “A plaintiff may therefore prove defamation
only if the third party receiving the publication understands its defamatory
meaning.” Because the deputy could not
have understood the statements to be defamatory after hearing much the same
information earlier from the plaintiff, the alleged statement is not
actionable. Further, it was true that
allegations about drug use had been made against the plaintiff and there is no
indication that the HR Manager conveyed that he believed those allegations to
be true or that he simply conveyed that the plaintiff had been trading company
equipment for drugs. Instead, he relayed
that such allegations had been made.
In addition, the HR Manager’s statements to the union
officers during the grievance meetings about the plaintiff’s alleged misconduct
were protected by qualified privilege. In
any event, playing recordings for the union officers – of the co-worker’s
allegations about inappropriate conduct and trading company equipment for drugs
-- is not actionable as a defamatory
statement. The HR Manager never
indicated that he believed the allegations, but was simply informing the union
that the allegations had been made.
Finally, telling the union officers that the plaintiff
falsified a company record was protected by a qualified privilege because the
HR Manager – while probably incorrect – had interviewed a couple of employees
to determine if someone else had amended the work ticket to reflect that the
work had been performed on December 4 instead of or in addition to the work
performed on December 9. “Ohio extends a privilege to statements made in good
faith, where ‘an interest [is] to be upheld, [the] statement [is] limited in
its scope to this purpose, [there is] a proper occasion, and publication [is]
in a proper manner and to proper parties only.’” In this case, his “statement about the ticket
was published only to necessary parties, the Union officers in charge of the
grievance. Finally, [his] statement was
limited in scope because it was couched as a “belief.” The plaintiff could not overcome this
privilege without evidence of actual malice, i.e., evidence that the HR manager
knew or recklessly disregarded that the information was false.
NOTICE: This summary
is designed merely to inform and alert you of recent legal developments. It
does not constitute legal advice and does not apply to any particular situation
because different facts could lead to different results. Information here can
be changed or amended without notice. Readers should not act upon this
information without legal advice. If you have any questions about anything you
have read, you should consult with or retain an employment attorney.
