Plumley v. Southern Container, Inc.

United States Court of Appeals
For the First Circuit

No. 01-2747

JOHN PLUMLEY,
Plaintiff, Appellant,

v.

SOUTHERN CONTAINER, INC.,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]
[Hon. David M. Cohen, U.S. Magistrate Judge]

Before

Selya, Circuit Judge,

Gibson* and Greenberg,** Senior Circuit Judges.

Gerald F. Petruccelli, with whom Petruccelli & Martin, LLP,
Francis M. Jackson, and Jackson & MacNichol were on brief, for
appellant.
Perry S. Heidecker, with whom Joseph M. Labuda, Milman &
Heidecker, James R. Erwin, and Pierce Atwood were on brief, for
appellee.

September 13, 2002

_______________
*Of the Eighth Circuit, sitting by designation.
**Of the Third Circuit, sitting by designation.
 SELYA, Circuit Judge. This case poses a question of

first impression: should compensation awarded for work-hours lost

during an employee's successful pursuit of a grievance count as

"hours of service" within the meaning of the Family and Medical

Leave Act (FMLA), 29 U.S.C. §§ 2601-2654 (1994)? The district

court answered this question in the negative and, accordingly,

entered judgment in favor of the employer.1 We affirm.

I. BACKGROUND

We present the facts in the light most favorable to the

party opposing summary judgment (here, the plaintiff), consistent

with record support. See McIntosh v. Antonino, 71 F.3d 29, 32 (1st

Cir. 1995).

In February of 1996, defendant-appellee Southern

Container, Inc. (SCI) hired plaintiff-appellant John Plumley to

work at its plant in Westbrook, Maine. Throughout his tenure,

Plumley was part of a bargaining unit represented by Local 669 of

the United Paperworkers International Union (the Union). At all

times relevant hereto, SCI and the Union were parties to a

collective bargaining agreement (the CBA) that included a standard

grievance procedure. Under it, an employee who believed that he

had been treated unfairly by SCI could file a grievance and expect

1
In this instance, the district judge accepted and adopted the
detailed report and recommendation of a magistrate judge. For
simplicity's sake, we do not distinguish between the two judicial
officers. Rather, we take an institutional view and refer to the
determinations below as those of the district court.

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a grievance committee elected by the Union to represent his

interests. Any settlement between SCI and the grievance committee

would bind the complaining employee. If SCI and the grievance

committee could not resolve the dispute amicably, either side could

take the matter to arbitration. The CBA stipulated that the

parties (and the complaining employee) would be bound by the

arbitrator's decision.

Plumley invoked the grievance procedure no fewer than

seven times during his tour of duty with SCI. One such occasion

followed his discharge on March 21, 1998. The ensuing dispute

reached the arbitration stage. Finding that the sanction imposed

was overly harsh, the arbitrator vacated the dismissal in favor of

a two-week suspension without pay. Ancillary to this

determination, the arbitrator ordered SCI to compensate Plumley in

full for the wages and benefits that he had lost during the period

when his grievance was being processed (adjusted for the two-week

suspension). Plumley received these emoluments — wages and

benefits for a span of approximately six months — despite the fact

that he had not worked for SCI during that interval.

The plant manager, Leo Parenteau, learned of the arbitral

award on October 5, 1998. The next day, he sent Plumley a

registered letter directing him to return to work on October 12.

Plumley received the letter on October 7, but found the timing

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inconvenient.2 He requested a brief delay, but Parenteau remained

resolute.

On October 12, Plumley reported to work at SCI, but

departed before completing his shift. The next day, he left a

message stating that he would be either late or absent because he

needed to see his ill father. Plumley did not report to work at

all, but, rather, visited his father at a hospital in Boston. When

Plumley arrived at the plant on October 14, Parenteau cashiered him

for abandoning his duties. Plumley attempted to grieve the firing

but the Union elected not to submit his grievance to arbitration.

So goes a rote story in modern labor-management relations

– facts as routine as they are simple. The atypicality of this

case is not apparent until certain elements are viewed through the

prism of the FMLA, a federal statute that "entitle[s eligible]

employees to take reasonable leave for medical reasons . . .

[including] the care of a child, spouse, or parent who has a

serious health condition . . . ." 29 U.S.C. § 2601(b)(2). The

statute allows such employees to take up to twelve weeks of unpaid

leave for specified reasons during any twelve-month period without

jeopardizing their employment security. Id. § 2612. It defines an

eligible employee as one "who has been employed (i) for at least 12

2
After his discharge, Plumley had started working full-time at
a nightclub in which he held an ownership interest. He complained
to Parenteau that the October 12 recall gave him only two business
days to arrange coverage at the club. Parenteau was unmoved by
Plumley's plight.

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months by the employer with respect to whom leave is requested . .

.; and (ii) for at least 1,250 hours of service with such employer

during the previous 12-month period." Id. § 2611(2)(A).

Seizing upon this language, Plumley filed suit against

SCI in Maine's federal district court, alleging that SCI violated

the FMLA and the Labor Management Relations Act (LMRA), 29 U.S.C.

§§ 141-197 (1994), when it terminated his employment on October 14,

1998.3 SCI denied the material allegations of the complaint. In

due season, Plumley moved for summary judgment.

In his motion, Plumley contended that he met the

requirements for FMLA eligibility because he had worked full-time

for SCI for more than one year and had provided more than 1,250

hours of service during the twelve months preceding the leave

request. He arrived at the total number of hours by aggregating

851.25 hours actually worked up to March 21 (the date when he had

been improvidently discharged) and the hours for which he was

compensated under the arbitral award. In Plumley's estimation,

those hours — which corresponded generally to the work weeks from

March 22 to October 11, 1998, minus the two-week suspension

approved by the arbitrator — were, as a matter of law, hours of

service within the compass of the FMLA (and, thus, brought his

3
Plumley originally joined the Union as an additional
defendant, charging that the Union violated the LMRA when it did
not press his grievance. He subsequently dropped the Union as a
defendant, and the Union is not a party to this appeal.

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aggregate hours of service well over 1,250 for the relevant twelve-

month period). Building on this foundation, he asseverated that

SCI had violated the FMLA by firing him for taking leave to care

for his ailing father. In the alternative, he theorized that SCI

should be estopped from disputing his eligibility for coverage

under the FMLA. Finally, he maintained that he had a right under

the LMRA to recover from SCI since the Union had breached its duty

of fair representation (DFR) by not submitting his grievance to

arbitration.

SCI opposed this motion and simultaneously cross-moved

for summary judgment, emphasizing that Plumley actually had worked

fewer than 1,250 hours in the previous twelve months and thus did

not meet the criteria for FMLA eligibility. In SCI's view, this

fact scuttled both the FMLA and DFR claims. The district court

entered summary judgment in favor of SCI. This appeal followed.

II. ANALYSIS

The role of summary judgment is to look behind the facade

of the pleadings and assay the parties' proof in order to determine

whether a trial is required. McIntosh, 71 F.3d at 33. In

conventional summary judgment practice, the moving party has the

initial responsibility of suggesting the absence of a genuine issue

of material fact. Quintero de Quintero v. Aponte-Roque, 974 F.2d

226, 227-28 (1st Cir. 1992). That entails supporting the motion,

by affidavits, admissions, or other materials of evidentiary

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quality, as to issues on which the movant bears the burden of

proof. McIntosh, 71 F.3d at 33. Once the movant has fulfilled

this obligation, the burden shifts to the summary judgment target

to demonstrate that a trialworthy issue exists. Suarez v. Pueblo

Int'l, Inc., 229 F.3d 49, 53 (1st Cir. 2000). In the last

analysis, summary judgment is appropriate only if the "pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

This same paradigm governs our de novo review of a

district court's grant of summary judgment. See Suarez, 229 F.3d

at 53. That non-deferential mode of review is particularly

appropriate where, as here, a case turns on a question of statutory

interpretation. See Riva v. Commonwealth of Mass., 61 F.3d 1003,

1007 (1st Cir. 1995) (explaining that rulings that depend on

statutory construction engender de novo review). It is against

this backdrop that we ponder Plumley's asseverational array.

A. The FMLA Claim.

As the parties readily concede, the central issue in this

appeal presents a pure question of law: the interpretation of the

"hours of service" requirement of the FMLA. The record is pellucid

that Plumley performed only 851.25 hours of actual physical work

for SCI in the twelve-month period prior to the date when he

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absented himself to visit his ailing father. In the first

instance, then, Plumley's case stands or falls on the

classification of the hours that he did not actually work but for

which he was compensated under the arbitral award. If those hours

comprise hours of service within the purview of the FMLA, then

Plumley has demonstrated his eligibility for FMLA benefits (and,

therefore, his action should have survived a motion for summary

judgment). If, however, those hours do not count for FMLA

purposes, then Plumley was not eligible for FMLA benefits (and,

therefore, his action was ripe for brevis disposition).

The district court interpreted the FMLA as excluding the

hours in question and entered judgment accordingly. We test this

determination.

In plotting the contours of a statute, courts must look

first to its language and structure. Lopez-Soto v. Hawayek, 175

F.3d 170, 172 (1st Cir. 1999); United States v. Charles George

Trucking Co., 823 F.2d 685, 688 (1st Cir. 1987). Thus, statutory

interpretation always begins with the text of the relevant statutes

— and it sometimes ends there as well. When the statutory language

"points unerringly in a single direction, and produces an entirely

plausible result, it is unnecessary – and improper – to look for

other signposts or to browse in the congressional archives."

Charles George Trucking, 823 F.2d at 688.

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 With these precepts in mind, we examine the statutory

provisions at issue here. The FMLA instructs us that "[f]or

purposes of determining whether an employee meets the hours of

service requirement . . . , the legal standards established under

section 207 of [Title 29] shall apply." 29 U.S.C. § 2611(2)(C).

Section 207 is part of the Fair Labor Standards Act (FLSA), 29

U.S.C. §§ 201-219 (1994). The applicable subsection deals with pay

classifications. It states that the "'regular rate' at which an

employee is employed shall be deemed to include all remuneration

for employment paid to, or on behalf of, the employee . . . ." Id.

§ 207(e).

The phrase "for employment" is critically important. To

ensure needed guidance, the FMLA, in 29 U.S.C. § 2611(3), refers

courts to FLSA § 203(g) for the definition of "employ" (the root of

"employment"). That section provides that "'[e]mploy' includes to

suffer or permit to work." Because this phrase is open-ended —

"includes" is not all-encompassing — we must broaden our search for

the meaning of the words that Congress wrote.

We conduct this inquiry with a keen awareness of the

general principle that, absent credible evidence to the contrary,

courts should assume that Congress knew, and embraced, widely

accepted legal definitions of specific words used in drafting

particular statutes. United States v. Nason, 269 F.3d 10, 16 (1st

Cir. 2001). That principle bears fruit in this instance. For

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legal purposes, the standard definition of "employment" is "[w]ork

for which one has been hired and is being paid by an employer."

Black's Law Dictionary 545 (7th ed. 1999). By like token, the word

"work" is defined in its verb form as "[t]o exert effort; to

perform, either physically or mentally." Id. at 1599. Merging

these definitions into one coherent sentence, we find that the

statutory language, in every technical sense, indicates that only

those hours that an employer suffers or permits an employee to do

work (that is, to exert effort, either physically or mentally) for

which that employee has been hired and is being paid by the

employer can be included as hours of service within the meaning of

the FMLA.

To end our analysis here would truncate the process, for

the task of statutory construction often is informed by reading the

whole of the statute. Acadia Ins. Co. v. McNeil, 116 F.3d 599, 604

(1st Cir. 1997). This case is no exception: other language in

FLSA § 207 strongly supports the conclusion that hours of service

must be limited to hours actually worked at the behest of the

employer. We explain briefly.

FLSA § 207(e) contains a list of remunerations that the

regular rate "shall not be deemed to include." This compendium

encompasses such things as "reward[s] for service, the amount of

which are not measured by or dependent on hours worked, production,

or efficiency [and] payments made for occasional periods when no

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work is being performed due to vacation, holiday, illness, failure

of the employer to provide sufficient work, or other similar

cause." 29 U.S.C. § 207(e)(1)-(2). These exclusions (and the

statutory language used in their explication) illustrate that any

compensation that is not paid for hours actually worked in the

service and at the gain of the employer is not to be counted toward

hours of service. It is surpassingly difficult to make a

principled distinction between wages received for hours not worked

because an employer has failed to provide sufficient work and wages

received for hours not worked because an employer unjustifiably has

kept the employee from working (and, thus, has failed to provide

sufficient work).

Plumley demurs. Represented by able counsel, he argues

that the arbitral award can be distinguished from the exemplars

listed in FLSA § 207(e) on the basis that all the listed items

provide some benefit to the employee, whereas a wrongfully

discharged employee – even one who subsequently prevails at

arbitration – does not benefit at all from his mistreatment. This

characterization is of doubtful validity; as this case illustrates,

a wrongfully discharged employee who prevails at arbitration

receives not only reinstatement but also the wages that he would

have earned even though he has not performed the services to which

those wages relate. In that sense, the wrongfully discharged

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employee benefits to the same extent as the employee who, say, is

paid for down time.

In all events, Plumley's characterization, even if

accurate, adds no dimension to our analysis. Congress directed

courts to use the "legal standards established under section 207 of

[the FLSA]" in order to determine the way in which hours of service

should be measured. 29 U.S.C. § 2611(2)(C). One of these

standards, enunciated long ago by the Supreme Court, is that "work"

for purposes of the FLSA means "physical or mental exertion

(whether burdensome or not) controlled or required by the employer

and pursued necessarily and primarily for the benefit of the

employer . . . ." Tennessee Coal, Iron & R.R. Co. v. Muscoda Local

No. 23, 321 U.S. 590, 598 (1944) (emphasis supplied). Our

derivation of the statutory language comports with this

definition.4 Moreover, Plumley cites no precedent under the FLSA

in which an adjudication hinged upon whether the employee was (or

4
We recognize, of course, that the extent of exertion involved
carries little legal weight, because "an employer, if he chooses,
may hire [one] to do nothing, or to do nothing but wait for
something to happen." Armour & Co. v. Wantock, 323 U.S. 126, 133
(1944). Nevertheless, the quoted language from Tennessee Coal has
withstood the test of time, and constitutes the yardstick by which
claims under the FLSA are measured. See United Transp. Union Local
1745 v. City of Albuquerque, 178 F.3d 1109, 1116 (10th Cir. 1999);
Dunlop v. City Elec., Inc., 527 F.2d 394, 401 (5th Cir. 1976);
Secretary of Labor v. E.R. Field, Inc., 495 F.2d 749, 751 (1st Cir.
1974); Karr v. City of Beaumont, 950 F. Supp. 1317, 1321-22 (E.D.
Tex. 1997).

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was not) benefitted by the employer's payment. This lack of

citation is understandable.

The case law shows, consistent with Tennessee Coal, that

courts faced with scenarios not clearly anticipated by Congress

have looked primarily to whether the employer was benefitted to

determine if particular hours are covered under FLSA § 207. See,

e.g., Richardson v. Costco Wholesale Corp., 169 F. Supp. 2d 56, 61

(D. Conn. 2001) (holding that employee's time spent in "lock-in

collection procedure" does not constitute work under the FLSA

because not integral to employer's business activities); Ragnone v.

Belo Corp., 131 F. Supp. 2d 1189, 1194-95 (D. Or. 2001)

(determining that pilot's on-call time was not spent primarily for

the benefit of the employer and its business and thus did not

constitute actual hours worked under the FLSA); cf. Dinges v.

Sacred Heart St. Mary's Hosp., Inc., 164 F.3d 1056, 1059 (7th Cir.

1999) (reasoning that emergency medical technician's on-call time

is not work under the FLSA). Consequently, we decline Plumley's

invitation to determine which hours are covered hours of service

based upon the benefit inuring to the employee rather than the

benefit inuring to the employer.

Plumley also argues that FLSA § 207 works by exclusion,

necessitating the inclusion of all compensation (and, therefore,

all hours of service) not explicitly described in one of its

subsections. The fatal flaw in this construct is that it reads the

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limiting phrase "for employment" out of the text of the statute.

It is black-letter law that all words in a statute are presumed to

have meaning and should be given full effect when feasible. E.g.,

United States v. Victoria-Peguero, 920 F.2d 77, 81 (1st Cir. 1990);

United States v. Ven-Fuel, Inc., 758 F.2d 741, 751-52 (1st Cir.

1985). The words "for employment" fit naturally into the rhythm of

FLSA § 207. Those words inform courts what remunerations to

include in calculating an employee's "regular rate," and, by

incorporation, his hours of service under the FMLA.5

Because Congress imported FLSA § 207 into the FMLA, a

thorough analysis requires us to ensure that our interpretation of

§ 207, when transplanted into the soil of the FMLA, produces a

plausible result. See Charles George Trucking, 823 F.2d at 688.

We turn next to that task.

The stated purposes of the FMLA are "(1) to balance the

demands of the workplace with the needs of families . . . ; (2) to

entitle employees to take reasonable leave for medical reasons . .

. ; [and] (3) to accomplish the[se] purposes . . . in a manner that

5
To be sure, "remuneration" is customarily defined as the act
of paying "a suitable equivalent in return for goods provided,
services rendered, or losses incurred; recompense." American
Heritage Dictionary of the English Language 1476 (4th ed. 2000)
(emphasis supplied). Under this definition, the arbitral award
reasonably could be characterized as payment for losses incurred.
We are not free, however, to choose this course. Rather, we must
give effect to the statutory text as Congress wrote it. Viewed
through that lens, the arbitral award cannot be considered payment
for services rendered.

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accommodates the legitimate interests of employers . . . ." 29

U.S.C. § 2601(b)(1)-(3). We see nothing odd about the fact that

Congress chose to strike this balance by defining eligible

employees as those who have worked for the employer during the

previous twelve months and have contributed 1,250 hours of actual

work. Indeed, if Congress chose to exclude periods when the

employer fails to provide sufficient work – a scenario completely

at the fault of the employer and out of the control of the employee

– we cannot deem it implausible that Congress would want to exclude

for FMLA purposes unproductive time elapsed during the pendency of

a grievance.

Plumley's back-up argument is that the intent of Congress

in requiring 1,250 hours of service was to insulate employers from

having to extend FMLA coverage to part-time workers. Building on

this foundation, he exhorts us to overlook the text of the statute

and find that Congress intended to cover all full-time employees.

But the foundation for this exhortation is porous: Congress chose

to differentiate eligible employees from ineligible employees by

the number of hours worked in the previous twelve months. See S.

Rep. No. 103-3, at 23 (1993), reprinted in 1993 U.S.C.C.A.N. 2, 25

(explaining that "the bill does not cover part time or seasonal

employees working less than 1,250 hours a year"). Because we

already have determined that Plumley did not actually work the

requisite number of hours, the plain letter of the law excludes him

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from coverage under the FMLA.6 Were we to hold otherwise, we would

usurp Congress's policypicking role, and, in the bargain, threaten

both the delicate statutory balance that Congress sought to achieve

and the constitutional balance envisioned by the Founders. Cf.

Victoria-Peguero, 920 F.2d at 81 (declaring this court's resolve to

refrain from "substitut[ing] judicial judgment for legislative

judgment or . . . plac[ing] limitations on [statutory language]

which were not envisioned by Congress").

We summarize succinctly. Our appraisal of the text and

structure of the FMLA, together with the incorporated provisions of

the FLSA, discloses unambiguous language leading to an entirely

plausible result. Thus, we hold that hours of service, as those

words are used in the FMLA, include only those hours actually

worked in the service and at the gain of the employer. It follows

inexorably that compensation resulting from an arbitral award, in

the nature of back pay for wrongful discharge, falls outside the

statutory ambit.7

6
In arguing for a contrary conclusion, Plumley's counsel
asserted at oral argument that this court should regard the FMLA as
a remedial statute designed to protect employees. But this is an
oversimplification. The FMLA is a carefully calibrated compromise
that balances the legitimate interests of both employers and
employees. See 29 U.S.C. § 2601(b). As part of this compromise,
it provides benefits only to eligible employees. This eligibility
is the very issue in dispute here.
7
In his reply brief, Plumley argues for the first time that
SCI violated 29 U.S.C. § 2615(a)(1) (a statute that renders it
"unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided under

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 B. The Estoppel Claim.

Plumley launches a related attack: he contends that SCI

should be estopped from disputing his FMLA eligibility. His

principal reliance is on the doctrine of collateral estoppel. That

reliance is misplaced.

Under federal law, a party wishing to invoke the doctrine

of collateral estoppel must establish (1) that the issue to be

precluded is the same as that disputed in a prior proceeding, (2)

that the issue was actually litigated in the earlier proceeding,

(3) that the issue was determined by a valid and binding final

judgment or order, and (4) that the determination of the issue in

the prior proceeding was essential to the final judgment or order.

Faigin v. Kelly, 184 F.3d 67, 78 (1st Cir. 1999). Here, Plumley

claims that the district court stripped a final order — the

arbitral award — of its full effect by not counting the wages paid

thereunder towards FMLA eligibility. This claim is unavailing:

the record contains no evidence that the FMLA was mentioned, let

alone adjudicated, in the arbitration proceeding. We conclude,

[the FMLA]"). Neither this statute nor the related regulation, 29
C.F.R. § 825.220(b)(3), were cited to the district court or in the
appellant's opening brief. Consequently, the argument is twice
forfeited. See Teamsters Local No. 59 v. Superline Transp. Co.,
953 F.2d 17, 21 (1st Cir. 1992) (explaining that arguments not
advanced in the district court cannot be raised for the first time
on appeal); Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86-87 (1st
Cir. 1990) (explaining that arguments not asserted in an
appellant's opening brief cannot be raised for the first time in
his reply brief).

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therefore, that the issue of FMLA eligibility was not before the

arbitrator, was not litigated in the arbitration, and was neither

determined by the award nor essential to its efficacy.

Plumley tries to blunt the force of this reasoning by

insisting that the arbitrator, in reinstating him to full

seniority, preserved his rights under the FMLA and necessarily

implied that his hours of service should be credited for that

purpose. This argument is refuted by the CBA's definition of

"seniority."

The CBA states in relevant part that the purpose of the

article anent seniority "is to provide an equitable measure of job

security and promotional opportunity based on the length of service

for all employees in the Bargaining Unit." That article defines

seniority as "continuous service within the Plant" and declares

that the seniority principle "shall be applied in cases of layoff,

recall[,] and transfer to an opening in another department."

From these provisions, it is plain that the CBA

establishes the relative length of employee service as a

determining factor when employees compete for jobs, promotions, and

other scarce resources. But FMLA eligibility is not doled out to

one employee at the expense of another. It is afforded to as many

employees as meet the eligibility criteria in amounts limited only

by the statute itself. Consequently, the CBA's concerns relating

to seniority do not affect — and are not affected by — FMLA

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eligibility. Thus, Plumley's collateral estoppel claim fails

because the arbitrator's reference to seniority cannot plausibly be

interpreted as incorporating statutory rights under the FMLA.

This holding also disposes of Plumley's related argument

that the lower court should have given the arbitral award

preclusive effect in accordance with the Federal Arbitration Act

(FAA), 9 U.S.C. §§ 1-16 (1994). If more were needed — and we do

not think that it is — that argument is based on a faulty premise:

that the Union had the authority to arbitrate a binding agreement

on the dimensions of Plumley's statutory rights under the FMLA.

For the most part, statutory rights conferred by Congress

upon individual workers cannot be consigned to the grievance

procedures created under collective bargaining agreements. See

Pryner v. Tractor Supply Co., 109 F.3d 354, 363 (7th Cir. 1997)

(discussing individual rights under Title VII). This tenet applies

to statutory rights created under the FMLA. See Bonilla v. Small

Assemblies Co., 2001 WL 630969, at *4, 80 Empl. Prac. Dec. ¶

40,609, 143 Lab. Cas. ¶ 34,276 (N.D. Ill. 2001). If unions were so

empowered, the rights of a minority (each individual union member)

would be subject to the will of the majority.

This gets the grease from the goose. If a union cannot

arbitrate a binding agreement for an individual worker regarding

statutory rights, an arbitration proceeding undertaken pursuant to

the CBA cannot yield a final judgment or order binding the employer

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on that issue. Thus, the FAA estoppel argument also fails the

third element of the collateral estoppel test.

Finally, Plumley argues that SCI should be equitably

estopped from denying his FMLA eligibility. This argument flows

from his insistence that SCI communicated to him a false

proposition, namely, that he was being terminated properly. He

claims that he relied upon this false proposition and did not

appear for work, thereby forfeiting his FMLA eligibility. This

construct was only vaguely hinted at below, and for that reason is

likely forfeit. See Teamsters Local No. 59 v. Superline Transp.

Co., 953 F.2d 17, 21 (1st Cir. 1992). More fundamentally, it

twists equitable estoppel doctrine into a shape that the law does

not recognize.

Simply stated, equitable estoppel prevents one "from

denying the consequences of his conduct where that conduct has been

such as to induce another to change his position in good faith or

such that a reasonable man would rely upon the representations

made." Clauson v. Smith, 823 F.2d 660, 662 (1st Cir. 1987)

(citations and internal quotation marks omitted). It requires that

(1) the party to be estopped must know the facts; (2) that party

must intend that his conduct be acted upon (or must act in a way

that leads the party asserting the estoppel to believe it is so

intended); (3) the latter must be ignorant of the true facts; and

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(4) he must rely on the estopping conduct to his detriment. Id. at

661.

This body of law does not help Plumley because it clearly

presupposes that the person invoking the doctrine had a choice of

actions to take and, of his own volition, changed position based on

the conduct of, or representations made by, the other party. Here,

however, Plumley had no such options. He was discharged, and could

not thereafter have engaged in hours of service accountable under

the FMLA. Moreover, the record makes manifest that Plumley did not

rely on SCI's representation as to the propriety of the discharge.

To the contrary, he fought that action tooth and nail. For these

reasons, the doctrine of equitable estoppel is inappropriate.

C. The LMRA Claim.

We are left with the LMRA claim. In the last analysis,

however, this claim depends on the viability of Plumley's FMLA

claim. To understand why, it is necessary to explain the structure

of hybrid DFR claims.

The Supreme Court has made it clear that an "employee may

bring an action against his employer . . . , provided the employee

can prove that the union . . . breached its duty of fair

representation in its handling of the employee's grievance." Vaca

v. Sipes, 386 U.S. 171, 186 (1967). A union can breach this duty

if its "conduct toward a member of the collective bargaining unit

is arbitrary, discriminatory, or in bad faith." Id. at 190.

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Because an individual employee does not have an unfettered right to

have each and every grievance taken to arbitration, the mere

failure to take a dispute to arbitration does not establish

liability. Id. at 191-92. If, however, the union fails to take a

meritorious claim to arbitration, that failure may transgress the

duty of fair representation. See Vaca, 386 U.S. at 191; Laurin v.

Providence Hosp., 150 F.3d 52, 62 (1st Cir. 1998); Sarnelli v.

Amalgamated Meat Cutters and Butcher Workmen, 457 F.2d 807, 808

(1st Cir. 1972) (per curiam).

This algorithm means that to succeed on his LMRA claim

Plumley must establish that he had a meritorious claim that the

Union handled in a perfunctory manner, or that the Union's conduct

toward him was otherwise arbitrary, discriminatory, or in bad

faith. The only argument that Plumley offers to support his DFR

count is that the Union arbitrarily refused to take his FMLA claim

to arbitration. As the FMLA claim is devoid of merit, see supra

Part II(A), the DFR count lacks any visible means of support.

After all, Plumley had no absolute right to arbitration of his

grievance, and his bare complaint that the Union disposed of his

grievance contrary to his desire does not establish a DFR breach.

We will not paint the lily. Plumley has offered no

significantly probative evidence to show that the Union breached

its duty of fair representation. That evidentiary gap absolves

SCI, for an employer cannot be liable on a DFR claim unless the

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union too is liable. Vaca, 386 U.S. at 186. Accordingly, the

district court appropriately entered summary judgment for SCI on

this claim. See Suarez, 229 F.3d at 53.

III. CONCLUSION

We need go no further. Although we are neither

insensitive to the equities at stake in this situation nor

unmindful of the tug of competing considerations, justice hones its

edges on hard cases. On which side of this edge employees such as

Plumley fall is a legislative choice, for it is Congress's mission

to set the policy of positive law. Our role is to interpret that

law with precision and predictability. When Congress facilitates

our task by enacting a detailed statutory framework, we must follow

its lead.

Affirmed.

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