United States Court of Appeals
For the First Circuit
No. 04-1830
EUGENE EMMANUEL,
Plaintiff, Appellant,
v.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL UNION NO. 25,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Howard, Circuit Judge.
Daniel J. Ciccariello with whom Law Office of Daniel J.
Ciccariello, was on brief, for appellant.
Matthew E. Dwyer with whom Dwyer, Duddy and Facklam Attorneys
at Law, P.C., was on brief, for appellee.
October 14, 2005
HOWARD, Circuit Judge. After losing his job as a bus
driver for Laidlaw, Inc. ("Laidlaw"), Eugene Emmanuel filed a
grievance with his union, the International Brotherhood of
Teamsters, Local Union No. 25 ("Union"), claiming that his
termination violated the Union's collective bargaining agreement
("CBA"). The Union unsuccessfully pursued Emmanuel's grievance
through arbitration. Dissatisfied with the outcome, Emmanuel sued
the Union, claiming that it had violated its duty of fair
representation during the arbitration. The district court granted
summary judgment for the Union. Emmanuel appeals that ruling and
also challenges the district court's denial of his motion for
reconsideration. We affirm.
I.
In 1999, Emmanuel began work for Laidlaw as a school bus
driver in West Roxbury, Massachusetts. On June 14, 2000, Laidlaw
asked Emmanuel to drive a bus from its West Roxbury facility to a
facility in a neighboring town. Emmanuel claims that, when he
entered the bus, he could not find the pre-trip inspection log but
recorded his safety observations on the back of his time sheet. He
noted that the brake was "set up a little higher than it was
supposed to be" but that he did not consider this a safety problem.
Emmanuel claims that, as he pulled out of the West Roxbury
facility, the bus accelerated out of control and the brakes failed.
He steered the bus off the road and crashed through several bushes
-2-
and a fence before stopping in a ditch.
Emmanuel blamed the accident on defects in the bus's
accelerator and brake systems. Laidlaw's investigation revealed
that the brakes had been recently serviced and were in working
order. After reviewing other relevant materials, including the
police report and Emmanuel's statement, Laidlaw determined that
Emmanuel was at fault and that the accident was "serious in
nature." The CBA permitted Laidlaw to fire an employee without
warning for involvement in a "serious at-fault accident." On
August 23, 2000, Laidlaw discharged Emmanuel.
Emmanuel filed a grievance with the Union, claiming that
the discharge was "unjust" and requesting reinstatement with
backpay. The Union business agent, Ritchie Reardon, represented
Emmanuel in the grievance proceedings. In October 2000, Reardon,
Emmanuel and several Laidlaw officials met to resolve the
grievance. At this meeting, Laidlaw proposed to reinstate Emmanuel
and to convert the post-termination period into an unpaid
suspension. Emmanuel rejected the offer and demanded arbitration.
Prior to arbitration, Emmanuel met with Reardon to
discuss strategy. Emmanuel urged Reardon to argue that the
accident was caused by mechanical defects in the bus. Emmanuel
provided Reardon with a list of employees who he claimed would
support this theory. Reardon told Emmanuel that he should arrange
for these employees to contact him because employees generally
-3-
resist testifying against their employer after being approached by
the Union business agent. None of these employees (only one of
whom saw the accident) ever contacted Reardon.
Reardon investigated Emmanuel's theory by interviewing
several Laidlaw mechanics. These individuals were "hostile" to
Emmanuel's claim because Emmanuel had been in other accidents which
he had blamed on mechanical defects, and because the mechanics had
taken these excuses "personally." The mechanics told Reardon that
the brakes and accelerating system were not defective. Based on
these conversations, Reardon believed that, if he were to call "the
mechanics to the witness stand they would actually say things that
would have harmed Emmanuel's case."
Lacking evidence to corroborate the defect theory,
Reardon focused on an alternative argument before the arbitrator.
The CBA required Laidlaw to impose discipline on an employee within
20 days of the date that the company learned of the accident.1
Because Laidlaw did not inform Emmanuel of his discharge until 70
days after the accident, the Union argued that Emmanuel's discharge
violated the CBA. The arbitrator rejected this argument and
concluded that Emmanuel's discharge was justified under the CBA.
After losing the arbitration, Emmanuel sued the Union for
violating the duty of fair representation. His complaint alleged
1
The CBA provided that "discipline shall be imposed no later
than twenty days from the day of the company's knowledge of the
incident, which gave rise to such discipline."
-4-
that the Union inadequately investigated his mechanical defect
theory and irrationally decided to present the timing issue to the
arbitrator. After discovery, the Union moved for summary judgment.
The district court concluded, as a matter of law, that the Union
had adequately investigated Emmanuel's defect theory and reasonably
represented him at the arbitration. Because there was no evidence
that the Union's conduct was discriminatory, in bad faith, or
arbitrary, the court entered judgment for the Union.
Shortly after this ruling, Emmanuel sought
reconsideration based on his discovery of "new evidence." Through
an internet search, a paralegal working on Emmanuel's case found
that the bus involved in the accident had been recalled by the
manufacturer to check for a defect in the acceleration system.
This recall notice was published and available prior to the
arbitration. Emmanuel argued that this evidence established a
question of fact concerning the sufficiency of the Union's
investigation. The district court denied the motion. Emmanuel
appeals both the summary judgment and motion for reconsideration
rulings.
II.
A. Summary Judgment
We review the grant of summary judgment de novo, taking
all disputed facts in the light most favorable to Emmanuel. See
Houlton Citizens' Coalition v. Town of Houlton, 175 F.3d 178, 184
-5-
(1st Cir. 1999). In so doing, we do not consider "conclusory
allegations, improbable inferences, and unsupported speculation."
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.
1990). We will affirm the grant of summary judgment so long as the
record reflects that no genuine issue of material fact exists and
that the Union is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(c).
As "the exclusive bargaining representative of the
employees, [a] [u]nion [has] a statutory duty fairly to represent
all of those employees both in its collective bargaining . . . and
in its enforcement of the resulting collective bargaining
agreement." United Steelworkers of Am., v. Rawson, 495 U.S. 362,
372 (1990) (quoting Vaca v. Sipes, 386 U.S. 171, 177 (1967)). This
duty is called the "duty of fair representation." BIW Deceived v.
Local S6, Indus. Union of Marine & Shipbuilding Workers of Am., 132
F.3d 824, 830 (1st Cir. 1997). A union breaches this duty by
acting discriminatorily, in bad faith, or arbitrarily toward a
union member. Morales-Vallellanes v. Potter, 339 F.3d 9, 16 (1st
Cir. 2003). Proof of any of these bad acts will suffice to
establish a claim. See id.
Emmanuel argues only that the Union acted arbitrarily in
handling his grievance. A union acts arbitrarily "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
-6-
reasonableness as to be irrational." Miller v. United States
Postal Service, 985 F.2d 9, 11-12 (1st Cir. 1993) (citation
omitted). This standard requires the court to examine objectively
the competence of the union's representation. See Neal v.
Newspaper Holdings, Inc., 349 F.3d 363, 369 (7th Cir. 2003). But
in performing this objective evaluation, the reviewing court must
accord the union's conduct substantial deference. See Air Line
Pilots Ass'n Int'l v. O'Neill, 499 U.S. 65, 78 (1991); Morales-
Vallellanes, 339 F.3d at 16. This standard of review recognizes
that unions must have ample latitude to perform their
representative functions. Miller, 985 F.2d at 12.
Emmanuel challenges the Union's investigation of his
theory of the accident. In particular, he faults the Union for not
interviewing the potential witnesses whom he identified for
Reardon.
The duty of fair representation mandates that a union
conduct at least a "minimal investigation" into an employee's
grievance. Garcia v. Zenith Elec. Corp., 58 F.3d 1171, 1176 (7th
Cir. 1995). But under this standard, only an "egregious disregard
for union members' rights constitutes a breach of the union's duty"
to investigate. Castelli v. Douglas Aircraft Co., 752 F.2d 1480,
1483 (9th Cir. 1985).
Reardon was willing to speak with the potential witnesses
that Emmanuel identified. But he told Emmanuel to urge the
-7-
witnesses to contact him because, in his experience, employees were
reluctant to testify against management after being approached by
the Union business agent. As Reardon explained, requiring
potential employee-witnesses to come to him tested their
"willingness to actually testify or provide evidence that is
unfavorable to an employer." Reardon's approach was designed with
an eye toward assuring that the Union only called helpful witnesses
at the arbitration. This strategy does not constitute a wholesale
disregard of the Union's duty to investigate Emmanuel's claim.
Moreover, Emmanuel has not demonstrated, as he must, that
any of these employees would have provided beneficial information.
See Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 585 (6th
Cir. 1994) (stating that the failure to "present favorable evidence
during the grievance process . . . may constitute a breach of . .
. duty . . . only if that evidence probably would have brought
about a different decision"). From our review of the record, none
of the witnesses was on the bus at the time of the accident or
otherwise was able to offer evidence to corroborate Emmanuel's
assertion that the bus was defective. These witnesses would not
have provided competent testimony to support Emmanuel's claim.2
2
Emmanuel suggests that one of the proposed witnesses would
have testified that he was aware of a previous circumstance in
which a bus accelerator stuck. But without testimony that it was
the same bus or bus model that Emmanuel drove on the day of the
accident, this testimony, if admitted into evidence at all, would
not have been particularly helpful to Emmanuel's case.
-8-
In any event, the Union did actively investigate
Emmanuel's claim. Reardon spoke to several Laidlaw mechanics about
the incident and Emmanuel's theory. These individuals would have
been critical witnesses at the arbitration because they could have
testified about the mechanical condition of the bus. The mechanics
told Reardon that the bus was not defective, and they were openly
resentful of Emmanuel's claim. These interviews understandably
discouraged Reardon from pursuing the defect theory. Reardon's
interviews sufficed to discharge the Union's duty to investigate.
See Garcia, 58 F.3d at 1177-78 (stating that the union discharged
its duty of fair representation by conducting minimally sufficient
investigation, even though the grievant would have preferred that
the union had investigated his claim more thoroughly); Castelli,
752 F.2d at 1483 (holding that the union met its duty of fair
representation where the union business representative spent no
more that one and a half hours in investigating the grievance and
preparing for the arbitration); Findley v. Jones Motor Freight,
639 F.2d 953, 956-61 (3d Cir. 1981) (concluding that the union
satisfied its duty of fair representation by conducting some
investigation of the grievance, even though it could have conducted
a more searching investigation).
In addition to challenging the quality of the Union's
investigation, Emmanuel faults the Union for presenting the
argument that Laidlaw's discharge decision violated the CBA's
-9-
timing provision. He contends that, because the CBA provision
establishing time limits for imposing discipline was untested, it
was irrational for the Union to rely on this argument before the
arbitrator. We disagree.
"It is for the union, not the courts to decide whether
and in what manner a particular grievance should be pursued."
Patterson v. Int'l Bhd. of Teamsters, Local 959, 121 F.3d 1345,
1349-50 (9th Cir. 1997). A union does not act arbitrarily merely
because it errs in interpreting a particular provision of a
collective bargaining agreement. Peterson v. Kennedy, 771 F.2d
1244, 1254 (9th Cir. 1985). The CBA provision at issue arguably
supported the Union's position that Emmanuel's termination was
untimely. As Reardon had not discovered evidence to support the
mechanical defect theory, it was rational for him to focus on this
alternate theory before the arbitrator. See Garcia, 58 F.3d at
1179 (stating that the union satisfied its duty of fair
representation where it pursued a rational arbitration strategy
even though the employee would have preferred a different
strategy).3
In sum, the record demonstrates that the Union
3
Emmanuel also argues that it was irrational for the Union to
fail to present evidence that other drivers often recorded pre-trip
inspection information, not in the safety log book, but rather in
other locations. Such evidence would have made no difference
because the arbitrator assumed that Emmanuel conducted an
appropriate pre-trip inspection. See Black, 15 F.3d at 585.
-10-
investigated the mechanical defect theory and presented a rational
argument to support the grievance. That is all that the duty of
fair representation requires.
B. Motion for Reconsideration
Shortly after the district court granted the Union's
motion for summary judgment, Emmanuel sought reconsideration on the
ground that he had discovered "new evidence." See Fed. R. Civ. P.
59(e). Specifically, through an internet search, he found that the
bus had been recalled in 1995 because of a problem that resulted in
"the accelerator sticking at the full power position." In light of
this discovery, Emmanuel argues that the Union was incompetent in
not doing this basic research and that, if it had done so, it would
have found evidence to support the mechanical defect theory.
Emmanuel posits that this recall notice establishes a triable issue
on the sufficiency of the Union's investigation, and that the
district court abused its discretion in denying his motion for
reconsideration.
We review the denial of a motion for reconsideration for
a manifest abuse of discretion. See Vasapolli v. Rostoff, 39 F.3d
27, 36 (1st Cir. 1994). Rule 59(e) provides litigants with a
vehicle to present the district court with evidence uncovered after
the entry of judgment. Aybar v. Crispin-Reyes, 118 F.3d 10, 16
(1st Cir. 1997). But it "does not provide a vehicle for a party
to undo its own procedural failures and it certainly does not allow
-11-
a party to introduce new evidence or advance arguments that could
and should have been presented to the district court prior to
judgment." Id. (citations omitted). Thus, a district court does
not abuse its discretion by denying a motion for reconsideration
grounded on the discovery of evidence that, in the exercise of due
diligence, could have been presented earlier. See Hayes v. Douglas
Dynamics, Inc., 8 F.3d 88, 91 n.1 (1st Cir. 1993).
The district court did not abuse its discretion because
the recall notice was available to Emmanuel well in advance of the
court's summary judgment ruling. Emmanuel admits as much in his
appellate brief. In arguing that the existence of the recall
notice demonstrated arbitrary conduct by the Union, Emmanuel
stated that the notice was "information that was available to
anyone" as it was posted "on the internet." Emmanuel has offered
no persuasive reason for waiting until after the entry of judgment
to search the internet for publically available documents that
could have supported his claim.4 See Hayden v. Grayson, 134 F.3d
449, 455 n.9 (1st Cir. 1998).
III.
For the reasons stated, the judgment is affirmed.
4
Emmanuel suggests that he could not have found the recall
notice earlier because the discovery order allowed him to take only
certain depositions, which would not have led him to discover the
notice. Putting aside that Emmanuel could have sought to expand
formal discovery, the notice was a public document available on the
internet to "anyone." The limits on formal discovery had nothing
to do with Emmanuel's delay in searching for this evidence.
-12-