UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RALPH JACKSON, et al.,
Plaintiffs,
v. Civil Action No. 12-2065 (JEB)
TEAMSTERS LOCAL UNION 922, et al.,
Defendants.
MEMORANDUM OPINION
As any buyer of a new car knows, driving off the lot typically triggers a feeling of
buyer’s remorse. In other words, once we know there is an opportunity lost by a decision we
make, we often feel post-decision regret. Plaintiffs, eight former employees of Giant Food, LLC,
who have brought a “hybrid” claim under the Labor Management Relations Act alleging
wrongdoing by both Giant and their Unions, appear to suffer from a serious case of buyer’s
remorse with regard to the severance package they accepted when the grocery-store company
laid them off. They insist that had they known that their decision to opt for severance pay meant
they forfeited the right to be placed on a recall list, which might have afforded them an
opportunity to be rehired within six months of their termination, they would not have accepted
such payments. Giant maintains that the choice posed by the severance package was clear, and
that Plaintiffs are precluded from suing the company by the releases they signed.
In bringing this suit, Plaintiffs contend that they are not bound by such releases because
Giant only induced them to sign through material misrepresentations. As causes of action, they
allege that the two Unions of which they were members, Local 730 and Local 922, failed to
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adequately discharge their duty of fair representation in negotiating the terms of the severance
and release, and that Giant’s termination of them and subsequent recall of other employees
violated its collective-bargaining agreements with the Unions. In an earlier Opinion, the Court
ruled that these two claims are interrelated, constituting one “hybrid” claim against both Giant
and the Unions, all three of whom are Defendants in this suit.
Defendants reject Plaintiffs’ narrative and, asserting that the material facts at issue are
undisputed, have separately moved for summary judgment. Concluding that Giant made no
material misrepresentations related to Plaintiffs’ release agreements and that their waiver of
claims is therefore valid, the Court will grant the company’s Motion. In addition, as Plaintiffs’
hybrid claim is deficient, the Court will also grant the Unions’ Motion, putting an end to this
long-running conflict arising from Plaintiffs’ choice.
I. Background
While the Court well knows that facts on summary judgment should be considered in the
light most favorable to the non-movant, it also notes that, pursuant to Federal Rule of Civil
Procedure 56(c), parties “asserting that a fact cannot be or is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record,” and the Court “need
consider only the cited materials, [though] it may consider others in the record.” Fed. R. Civ. P.
56(c)(1)(A), (c)(3). In this case, Defendants have submitted a 54-page Joint Statement of Facts,
Plaintiffs have responded with a 137-page Response, and both sides have each submitted more
than 60 exhibits. See Def. JSOF (ECF No. 130-7); Pl. Resp. to JSOF (ECF No. 141-1).
Plaintiffs’ filings, in addition to being voluminous, are riddled with typographical errors and
incomplete sentences, frequently confuse argument with fact, and often fail to identify precise
record citations to support their claims. It is not the Court’s duty to mine the record for every
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relevant evidentiary item. See Potter v. District of Columbia, 558 F.3d 542, 553 (D.C. Cir. 2009)
(Williams, J., concurring). Where “a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact . . . , the court may . . . consider the fact
undisputed.” Fed. R. Civ. P. 56(e)(1); see also LCvR 7(h)(1) (explaining that Court may assume
that nonmoving party “admitted” facts it failed to “controvert” in its response or opposition). In
other words, the Court will decline the invitation to fill in the literal blanks left by Plaintiffs’
briefing. See, e.g., Pl. Resp. to JSOF, ¶ 104 (“Plaintiffs further incorporate by reference their
responses in response to Defendants allegations in paragraphs , as if fully pled herein.”), ¶ 130
(“See Ex____”). With these principles in mind, the Court recites the facts relevant to its
disposition of Defendants’ Motions for Summary Judgment.
A. Parties and Setting
Plaintiffs in this case are eight former employees of Giant, which operates a chain of
grocery stores located in Maryland, Virginia, Delaware, and the District of Columbia. See Pl.
Resp. to JSOF, ¶ 1. While employed by Giant, Plaintiffs were members of one of two unions,
Local 922 or Local 730 (“the Unions”). Id., ¶ 2. Until 2011, Giant’s retail stores were supported
by two distribution centers located in Jessup, Maryland: one for “fresh” groceries and the other
for “dry” groceries. Id., ¶ 6. The fresh-foods center, including a recycling facility, was operated
entirely by Giant, but the dry-goods compound was only partially operated by Giant; the dry-
goods recycling facility was run by the company, but the dry-goods warehouse was run by a
subsidiary of C&S Wholesale Company. Id., ¶¶ 7-8, 15. All of the Plaintiffs worked at one of
the two recycling facilities. Id., ¶ 9.
In previous years, Giant had operated a variety of facilities in support of its stores –
including its own dairy, bakery, and the like – but at the time of the events at issue, the company
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was focused more on the operation of its retail grocery stores and, in streamlining its operations,
reallocated or laid off workers. Id., ¶ 16. In addition, in June 2012, C&S closed the dry-goods
warehouse it operated in Jessup, Maryland, and relocated those operations to Pennsylvania,
leading to a number of layoffs, including some members of Local 730. Id., ¶ 19. The parties
agree that Giant learned of that planned closure in April 2012 and made some efforts to prepare
for those layoffs, though they dispute precisely what actions were taken and when, id., ¶¶ 20-24;
those disputes, however, are irrelevant to Defendants’ Motions.
In a memorandum dated April 26, 2012, and addressed to the entire Giant Distribution
Team, Giant’s Vice President of Distribution Operations, Mike Scott, informed the Team of the
dry-goods-warehouse closure and indicated that “Giant was still assessing the impact of C&S’s
decision.” Id., ¶ 26. This memorandum was posted in some employee break rooms. Id. Giant
ultimately concluded that, after the C&S closure, “it would be more efficient to operate only one
recycling facility instead of two.” Id., ¶ 29 (citing Def. Exh. 12 (ECF No. 132-2) (Deposition of
Billye Pounds, Giant Senior Manager of Human Resources) at 46:3-16). Because “multiple
people” had been doing the “same work” at the two separate facilities, Giant expected that after
their consolidation, it would not require as many employees. See id., ¶ 32; Pounds Dep. at
55:10-56:10. The parties disagree about how Giant arrived at that expectation, whether its belief
in the reduced need for employees was reasonable, and other such details, but Plaintiffs point to
no testimony indicating that Giant did not “believe that the consolidation of the two warehouses
would . . . mean that there was going to be less work for employees to do.” Pounds Dep. at
55:13-15.
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B. Negotiation and Termination
In late May and early June of 2012, Giant met with the leaders of Local 730 and Local
922 to discuss the effects of the facilities’ consolidation – what the parties refer to as “effects
bargaining.” See Pl. Resp. to JSOF, ¶¶ 34-46. Ritchie Brooks, President of Local 730, and
Ferline Buie, President of Local 922, agreed that the two Unions would jointly negotiate with
Giant during the effects bargaining. Id., ¶¶ 39, 46. At least one meeting between Buie and Giant
was attended by five of the Plaintiffs. Id., ¶ 43.
The Unions sought to convince Giant that the layoffs were not necessary, the number of
laid-off employees should be fewer than the company’s predictions, and Giant should engage in
a $50,000 voluntary buyout. Id., ¶¶ 49-51. The Unions succeeded in bargaining down the
number of laid-off employees but not on their other demands. Id., ¶ 50. The Unions then
requested severance pay for the affected employees or, in the alternative, “recall rights,” meaning
the right to be placed on a list for potential rehire, based on seniority, following termination of
employment. Id., ¶ 51. As to severance, the Unions asked Giant to provide two weeks of
severance pay for each year of employment with the company, but Giant agreed to only one
week per year of service. Id., ¶ 52. As to recall, the Unions asked that those employees who
decided not to accept the severance package would have recall rights for one year. Id., ¶ 53.
Giant and the Unions disputed whether each Union’s Collective Bargaining Agreement with the
Company already gave Union members recall rights, and Plaintiffs and Defendants continue to
dispute what the CBAs required. Id., ¶¶ 54-57.
Ultimately, the Unions and Giant agreed to a severance package under which affected
employees would have the option either to receive up to eight weeks of severance pay, depending
on their years of service but with a minimum of two weeks’ pay, or instead to be placed on the
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recall list for six months. Id., ¶ 58. If they chose the latter option, they would still lose their
jobs, but would be eligible for rehire if Giant recalled any employees. The company agreed to
reduce its number of layoffs to eight employees from Local 730 and twelve employees from
Local 922. Id., ¶ 81. This agreement was later memorialized in two Memoranda of
Understanding. See Def. Exh. 33 (ECF No. 133-13) (Local 922 MOU), 34 (ECF No. 133-14)
(Local 730 MOU).
During the effects bargaining, leadership of Local 730 and Local 922 had requested that
the Unions, rather than Giant, be permitted to inform their members about the layoff, and Giant
acquiesced. Id., ¶ 62; see also Def. Exh. 1 (ECF No. 131-1) (Deposition of Michael Scott, Giant
Director of Warehousing) at 112:6-9. The Unions held these meetings from the beginning to the
middle of June 2012. Id., ¶¶ 63-64. What was and was not said at those meetings is the source
of some dispute, but the parties agree that representatives from Giant’s Human Resources
department and Distribution Services division attended, id., ¶ 64, and that Union members were
informed about the impending layoffs and severance package that had been negotiated on their
behalf with Giant. Id., ¶¶ 65, 74. The parties do not agree whether the Union leaders told Union
members that, should they choose to decline the severance package, they would be placed on a
recall list for up to six months. Id. In addition, information was provided to the employees who
would be laid off to help them find new employment. Id., ¶ 67.
At the request of Union leaders, Kelli Hall, Giant’s Human Resources Manager, or her
associate met individually with each of the twenty affected employees for approximately ten
minutes each and provided them with copies of the Separation and Release Agreement they
would need to sign if they chose to receive severance pay. Id., ¶¶ 87-90. Although Plaintiffs
maintain that they did not understand the terms of the Agreement, Hall maintains that she read
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the separate Acknowledgement of Receipt of Separation and Release Agreement out loud to each
of them and gave them copies of both documents, informed them that they had forty-five days in
which to determine whether or not to sign it, encouraged them to consult with an attorney before
signing it, and explained that, as required by the Older Workers Benefit Protection Act of 1990,
employees had seven days after signing the Agreement in which to revoke it. Id., ¶ 92. She
states that she explained that they would receive the severance pay within two weeks if they
decided to sign the Agreement. Id. After meeting with Hall, all Plaintiffs then signed the
Acknowledgement, which set forth in writing this information. See Declaration of Kelli Hall,
Exh. 1 (ECF No. 130-4) (Plaintiffs’ Signed Acknowledgements). The Acknowledgement also
explained that the terminations had been determined pursuant to the seniority process in the
Collective Bargaining Agreements and that employees should not sign and return the Agreement
any earlier than three days before their last day of work. Id.
The Agreement itself contained two provisions of special relevance to this litigation. The
first is a paragraph entitled “Rehire” telling employees that by signing the Agreement, they
“hereby agree not to knowingly seek or accept employment, whether directly or indirectly, with
the Company . . . or any of its operating companies or affiliates. You further agree that your
execution of this Agreement is good and sufficient cause for the Company and/or its affiliates to
reject any application you may make for employment or re-employment.” Def. Exh. 2 (ECF No.
130-5) (Plaintiffs’ Signed Agreements), ¶ 10. The second is a “Complete Release of Claims”
paragraph explaining that employees
fully release, waive and forever discharge the Company . . . from
any and all administrative claims, actions, suits, . . . or liabilities of
any nature . . . , whether known or unknown, arising prior to the
Effective Date of this Agreement, including, but not limited to . . .
all claims arising in law or equity or any claims arising under [a
variety of federal and state statutory and common-law causes of
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action] . . . . You expressly agree and understand that this General
Release means that you are releasing the Released Parties from all
claims, whether known or unknown, . . . and whether or not the
claims arise out of your employment with or termination of
employment from the Company . . . .
Id., ¶ 3; see also id., ¶ 4 (“Pursuit of Released Claims”).
All of the Plaintiffs signed the Agreements. Id. They agree that they had the opportunity
to review the Agreement prior to signing it, though they maintain that they did not understand all
of it. See Pl. Resp. to JSOF, ¶ 110. Only one of the twenty laid-off employees opted not to sign
the Agreement. Id., ¶ 108; see also Hall Decl., ¶ 17 (explaining that Frank Manieri told her he
wanted to be placed on the recall list, and she told him that he should not sign the Agreement if
he wanted to preserve the option of being recalled). The parties do not agree about what, if any,
advice the Unions gave the employees about whether to sign the Agreements. See, e.g., Pl. Resp.
to JSOF, ¶¶ 111-12. No Plaintiff revoked or attempted to revoke her Agreement within seven
days of signing it, and all Plaintiffs received their severance payments in accordance with the
terms of their Agreements. Id., ¶¶ 114-15.
On June 29, 2012, a massive storm known as a “derecho” hit the Washington
metropolitan area, resulting in the loss of power to more than seventy of Giant’s stores in the
region. Id., ¶ 119. While the parties disagree about the impact of the storm on the Jessup
facility’s operations, id., ¶¶ 120-21, it is undisputed that Giant chose to recall – first on a
temporary basis and then permanently – three employees on July 4 and then hired twelve
additional temporary employees in the days afterward. Id., ¶¶ 123-25. Plaintiffs maintain that
Giant knew or should have known that the July 4th period would be a busy time, requiring
additional workers, but Giant insists that it had no plans to recall or hire new workers prior to the
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derecho. Id., ¶¶ 123-26. Neither the eight Plaintiffs nor any of the other employees who signed
the Agreements were among the recalled employees. Id., ¶ 127.
C. Grievances, NLRB Charge, and Litigation
In early July, Plaintiffs learned of some recalls. Id., ¶ 128. On August 16, 2012,
members of Local 730, including Plaintiffs Tiffany Cherry, Christopher Mundell, and Sharron
Foster, filed a “group grievance” with their Union complaining that their layoffs violated the
Local 730 CBA. Id., ¶ 137. On the same day, members of Local 922, including Plaintiffs Donna
Ward, Donchez Coates, Linda Mathis, William Christopher, and Ralph Jackson, also filed a
“group grievance” with their Union raising the same complaint with regard to their CBA. Id.,
¶ 138. A joint letter from both Unions was also sent on Plaintiffs’ behalf to Giant’s Human
Resources department, accusing the company of improperly laying off Plaintiffs and requesting
that the Company meet with them to resolve the grievance. Id., ¶ 139. The parties “vigorously”
dispute whether the grievances filed against the Unions were timely and whether they were
handled properly by the Unions, see, e.g., id., ¶ 144, but neither Union processed the grievance to
arbitration. Id., ¶¶ 146, 149. After receiving the grievances from the Unions, Giant denied the
grievance of the Local 730 Plaintiffs by letter dated August 26, 2012, and the Local 922
Plaintiffs’ grievance by letter dated August 29, 2012. Id., ¶¶ 144-48.
On November 17, 2012, those Plaintiffs, through counsel, together filed three unfair-
labor-practice charges with the National Labor Relations Board: one each against the Unions and
one against Giant. Id., ¶ 152; see also Def. Exh. 45-46 (ECF No. 134-5, -6) (NLRB Charges). In
their charges against the Unions, Plaintiffs claimed that Local 730 and Local 922 breached their
duty of fair representation vis-à-vis their termination and severance package; in their charge
against Giant, Plaintiffs claimed the company “unlawfully” terminated their employment by
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inducing them through threats and coercion to sign the Separation and Release Agreements. See
Pl. Resp. to JSOF, ¶¶ 153-154. The NLRB Regional Office then conducted an investigation into
the charges, id., ¶ 156, which included interviewing six of the eight Plaintiffs. Id., ¶ 157.
By letters dated January 31, 2013, the NLRB Regional Director, Wayne Gold, dismissed
the charges against the Unions. See Def. Exh. 56-57 (ECF No. 134-16, -17) (Letters Dismissing
Local 730 & Local 922 Charges) (“The investigation failed to reveal any evidence that
employees were coerced into signing severance agreements. Rather, the evidence established
that the Union simply informed employees of their options regarding severance.”). Gold
similarly dismissed the charge against Giant on the same day. See Def. Exh. 55 (ECF No. 134-
15) (Letter Dismissing Giant Charge) (“The evidence obtained during the investigation
established the Employer notified the employees’ collective-bargaining representative of its
decision to conduct the layoff. The Employer then bargained over the effects of the layoff with
[that] representative. The employees were selected for layoff by order of seniority; and, they
were provided with two options, (1) sign a severance agreement and waive . . . recall rights or (2)
accept six months of recall rights. . . . Your allegation that the employees were threatened and
coerced into signing the agreements also lacks evidentiary support.”).
Plaintiffs, unsurprisingly, appealed the Regional Director’s dismissals to the NLRB’s
Office of Appeals. See Declaration of Ritchie Brooks, Exh. 8 (ECF No. 134-18) (Feb. 19, 2013,
NLRB Appeal Acknowledgment) at 1. On April 17, 2013, the NLRB Office of Appeals affirmed
the Regional Director’s dismissals of Plaintiffs’ three charges, “substantially for the reasons in
the Regional Director’s letters of January 31, 2013.” Id. at 3 (Apr. 17, 2013, NLRB Denial
Letter).
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Shortly after Plaintiffs filed their NLRB Charges – but before those charges could be
adjudicated – they filed suit in this Court against Giant and the Unions. See Complaint (ECF
No. 1) (filed Dec. 27, 2012). The Complaint asserted six causes of action and sought monetary
damages to compensate for lost wages, benefits, and emotional distress; reinstatement to their
positions at Giant; attorney fees and costs; pre-judgment interest; and punitive damages. Id. at 7-
16. With leave of court, Plaintiffs subsequently filed a 68-page Amended Complaint that
asserted eight causes of action: breach of the duty of fair representation by the Unions (Counts I
and II) and six counts against Giant, including breach of contract (Count III),
“misrepresentation” (Count IV), fraud and constructive fraud (Counts V and VI), “detrimental
reliance” (Count VII), and retaliation (Count VIII). See Amended Complaint (ECF No. 39).
Defendants then moved to dismiss the Amended Complaint and alternatively sought summary
judgment. See ECF Nos. 40-42.
On February 12, 2014, this Court issued an Order granting in part and denying in part
Defendants’ motions. See ECF No. 53. In an accompanying Memorandum Opinion, the Court
dismissed all of Plaintiffs’ claims against Giant except for one: breach of contract. Jackson v.
Teamsters Local Union 922, 991 F. Supp. 2d 71, 86 (D.D.C. 2014). It further concluded that the
breach-of-contract cause of action was in fact only viable as a claim under section 301 of the
Labor Management Relations Act, and so should proceed under that statute. Id. at 81. The Court
also held that it was premature to enforce the waiver of claims against Giant in the Separation
and Release Agreements given that discovery had not yet fully fleshed out the circumstances
surrounding those releases. Id. at 82-83.
The Court then examined Plaintiffs’ § 301 claim against Giant and their breach-of-duty-
of-fair-representation claims against the Unions and concluded that these did not stand alone, but
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were, in fact, pled as a “hybrid section-301/fair-representation suit against both Giant and their
Unions.” Id. at 81. As this hybrid claim was sufficiently pled to defeat a motion to dismiss, the
Court permitted that sole cause of action to proceed against all three Defendants. Id.
The parties next traveled through the discovery phase, during which they had a number of
substantial disagreements over deposition testimony and expert witnesses. See Jackson v.
Teamsters Local Union 922, 310 F.R.D. 179 (D.D.C. 2015) (striking portions of employees’
errata sheets that made substantive changes or contradictions to prior deposition testimony);
Jackson v. Teamsters Local Union 922, No. 12-2065, 2015 WL 11023790 (D.D.C. Oct. 26, 2015)
(denying Plaintiffs’ motion to reconsider Court’s prior ruling on errata sheets); Jackson v.
Teamsters Local Union 922, 312 F.R.D. 235 (D.D.C. 2015) (denying Plaintiffs’ motion for leave
to supplement expert reports). Eventually, Defendants each moved for summary judgment. See
ECF Nos. 128 (Local 922 MSJ), 129 (Local 730 MSJ), 130 (Giant MSJ). Those Motions are
now ripe.
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S.
at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely
disputed must support the assertion” by “citing to particular parts of materials in the record” or
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“showing that the materials cited do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1).
When a motion for summary judgment is under consideration, “[t]he evidence of the non-
movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Liberty
Lobby, 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v.
Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). On a motion for summary
judgment, the Court must “eschew making credibility determinations or weighing the evidence.”
Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
The nonmoving party’s opposition, however, must consist of more than mere
unsupported allegations or denials and must be supported by affidavits, declarations, or other
competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant is
required to provide evidence that would permit a reasonable jury to find in his favor. See
Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).
III. Analysis
Plaintiffs’ “hybrid” section-301/fair-representation claim is composed of two parts: A
claim against Giant for breach of its collective-bargaining agreements (CBA) and a claim against
the Unions for breach of their duty of fair representation. See Cephas v. MVM, Inc., 520 F.3d
480, 485 (D.C. Cir. 2008) (citing DelCostello v. Int’l Bhd. Of Teamsters, 462 U.S. 151, 164-65 &
n.14 (1983)). Because these components are “intertwined,” Jackson I, 991 F. Supp. 2d at 81,
Plaintiffs must succeed on both in order to prevail.
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In seeking summary judgment, Giant first contends that by signing Separation and
Release Agreements, Plaintiffs have expressly waived their right to assert that the company
violated the CBAs. Should its waiver argument fail to persuade, Giant also maintains that it did
not breach the CBAs and that the Unions did not breach their duty of fair representation. The
Unions similarly argue that Plaintiffs cannot succeed on either prong of their hybrid claim.
The Court first finds that the Agreements are valid and thus release Giant from all claims
Plaintiffs raise against the company. It next turns to the question of whether, as Plaintiffs assert,
they may nevertheless bring a stand-alone claim against the Unions and the viability of such a
claim.
A. Waiver of Claims Against Giant
Giant’s first line of defense is its waiver argument: It insists that Plaintiffs waived their
right to bring any claim relating to their termination of employment with Giant, including any
breach-of-CBA or hybrid claim, when they signed their Separation and Release Agreements with
the company in June 2012.
The Agreements, offered to employees “considered for separation pursuant to the number
of positions available and the seniority process established in the Collective Bargaining
Agreements,” Acknowledgements at 1, required that employees, in exchange for severance pay,
“fully release, waive, and forever discharge the Company, [and] all affiliated or related
companies . . . from any and all administrative claims, actions, suits, debts, demands, damages,
claims, judgments, or liabilities of any nature, including costs and attorneys’ fees, whether
known or unknown, arising prior to the Effective Date of this Agreement.” Agreement, ¶ 3. The
Agreement expressly noted that this “General Release” applied “whether or not the claims
ar[o]se out of your employment with or termination of employment from” Giant. Id.
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These terms, Giant insists, clearly cover the breach-of-CBA claim, which is based on the
company’s layoffs and recalls that Plaintiffs believe violated the CBA. The Agreements were
signed on June 28 or 29, 2012, depending on the Plaintiff, and their effective dates were eight
days after Plaintiffs signed them. See id., ¶ 12(g). As the layoffs occurred on June 30, 2012, see
id., ¶ 1, predating the effective dates of the Agreements, Defendants believe any breach claims
are waived. Plaintiffs do not dispute that if the waivers are valid, they are out of luck with
respect to their suit against Giant. Instead, they rejoin that they were induced to sign the
Agreements by the company’s material misrepresentations and omissions and that, accordingly,
the Agreements should be deemed void and unenforceable. See Opp. (ECF No. 141) at 39-40.
The Agreement includes a choice-of-law provision instructing that it “shall be governed
by the laws of the State of Maryland.” Agreement, ¶ 14. The parties agree that under Maryland
law, a release is a contract. See Owens-Ill., Inc. v. Cook, 872 A.2d 969, 985 (Md. 2005); Parish
v. Md. & Va. Milk Producers Ass’n, 242 A.2d 512, 555 (Md. 1968). As such, the construction
and interpretation of this release is governed by the Maryland law of contracts, “the cardinal
rule” of which “is to effectuate the intentions of the parties.” Cook, 872 A.2d at 985.
As the Court noted in its earlier Opinion, see Jackson I, 991 F. Supp. 2d at 84, a contract
is voidable under Maryland law if signed in reliance upon a misrepresentation of material fact by
a counter-party. See Snyder v. Herbert Greenbaum & Assocs., Inc., 380 A.2d 618, 621 (Md. Ct.
Spec. App. 1977); see also Restatement (Second) of Contracts § 164(1) (1981) (“If a party’s
manifestation of assent is induced by either a fraudulent or a material misrepresentation by the
other party upon which the recipient is justified in relying, the contract is voidable by the
recipient.”). Once a misrepresentation has been established, the question before the Court is
“whether the extraordinary powers of equity may be invoked to rescind the executed contract
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because one or more of the misrepresentations – which the [Plaintiffs] claim they relied on –
induced them to enter into the contract.” Wolin v. Zenith Homes, Inc., 146 A.2d 197, 200 (Md.
1959).
Plaintiffs here contend that the Agreement’s waiver is unenforceable at this stage of the
litigation because there remain genuine issues of material fact
as to whether Giant misrepresented (1) the terms of the separation
agreement – which insists [sic] included the option to choose the
opportunity to be placed on a six-month recall list over severance
pay – (2) the lack of available work, and (3) the slim chance of a
recall, (4) there were going to be future layoffs, (5) that it [sic] was
not enough room or equipment for all the employees[,] (6) the
recycling building was shutting down, ([7]) the laid off members[’]
jobs were gone and they would not be replaced and ([8]) “Giant do
not want you anymore.”
Opp. at 40.
Defendants rejoin, first, that all of these purported representations, even if they are false
or misstatements, are not material to the Agreement, and second, that the record establishes that
Giant never actually misrepresented anything to Plaintiffs in connection with the Agreement.
See Giant Reply (ECF No. 158) at 6-14. The Court addresses each of these responses in turn,
rejecting the first but accepting the second.
1. Materiality
As to the first issue, it is certainly true that only a “misrepresentation of material fact by a
counter-party,” if relied on by another party, can render the resulting contract voidable or merit
rescission. See Jackson I, 991 F. Supp. 2d at 82. The Court of Appeals of Maryland has
explained that typically “reliance upon a misrepresentation of fact, intentionally misrepresented
or otherwise, is justifiable only if the fact misrepresented is material. A fact is material if its
existence or nonexistence is a matter to which a reasonable man would attach importance in
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determining his choice of action in the transaction, or the maker of the misrepresentation knows
that its recipient is likely to regard the fact as important although a reasonable man would not so
regard it.” Carozza v. Peacock Land Corp., 188 A.2d 917, 921 (Md. 1963). Particularly where
“the misrepresentation is made without scienter or fraudulent intent, the element of materiality
must be clearly established. Needless to say, the materiality of a misrepresentation turns on the
facts of the particular case.” Chesapeake Homes, Inc. v. McGrath, 240 A.2d 245, 250 (Md.
1968) (citation omitted); see also, e.g., id. (holding, on those facts, that “what makes the
representation [regarding the identity of the property purchased] material is not the frequency
and confidence with which the assurances were made, but the knowledge on the part of the
appellants that the appellees both desired and expected to receive” something under the contract
that they did not “actually receive[]” and without which they “would have been unwilling” to
enter into the contract); Telma v. Gingell, 146 A. 221, 221 (Md. 1929) (vendor’s representation
that first floor of building was rented to responsible tenant for five-year term was material
misrepresentation on which purchaser might rely in deciding to sign contract for sale of the
property).
Importantly, “[a] representation which merely amounts to a statement of opinion,
judgment, or expectation, or is vague and indefinite in its nature and terms, or is merely a loose,
conjectural or exaggerated statement, is not sufficient to support an action” for rescission. Hall
v. Brown, 94 A. 530, 531 (Md. 1915) (quoting Buschman v. Codd, 52 Md. 202, 207 (1879)); see
also id. (“[P]rovided the statement is material and is not the mere expression of opinion, and
provided the purchaser relies upon it and is deceived, and the statement concerns a matter which
cannot be discovered by ordinary observation, . . . [e]ven an innocent misrepresentation . . . may
avoid the contract.”) (quotation marks and citation omitted).
17
Keeping this standard in mind, the Court believes that the series of “misrepresentations”
Plaintiffs have listed really all go to two separate issues. First, did Giant misrepresent or not
inform Plaintiffs that they had two alternatives – namely, obtain severance or remain on the
recall list? Second, even if it explained these options, did Giant misrepresent that the likelihood
of a recall was slim? Both of these issues could be considered material because an employee
would want to know her options before signing the Agreement and because the likelihood of a
recall could well dictate her decision between those options. The Court thus next looks at each
to see whether a jury could conclude that Giant made such representations and whether they
were in fact false.
2. Misrepresentation re: Severance-vs.-Recall Choice
In response to Plaintiffs’ position that Giant misrepresented their choice between
receiving the severance payment and being placed on the recall list, the company offers two
primary counterarguments. First, the Agreement is clear inasmuch as it includes a provision
expressly disavowing Plaintiffs’ rights to rehire. Second, Plaintiffs’ contention that Giant never
told them about the recall-list alternative fails because the undisputed evidence reveals that they
had actual knowledge of their options.
a. Terms of the Agreement
Giant begins with the terms of the Agreement, which, it maintains, are unambiguous.
The Agreement includes a “Rehire” provision, which states that, by signing the document,
employees “hereby agree not to knowingly seek or accept employment, whether directly or
indirectly, with the Company, [Giant], or any of its operating companies or affiliates. You further
agree that your execution of this Agreement is good and sufficient cause for the Company and/or
its affiliates to reject any application you make for employment or reemployment.” Agreement,
18
¶ 10 (emphasis added). Plaintiffs assert that “instructing [employees] that they cannot be rehired
is not the same as telling them that they cannot be recalled following a layoff,” Opp. at 45, but
the provision’s express inclusion of both employment and reemployment demonstrates that
“Rehire” was meant to include recalls. See EEOC v. Beverage Canners, Inc., 897 F.2d 1067,
1069 n.4 (11th Cir. 1990) (“The distinction drawn by the Company and adopted by the trial court
between ‘recall’ and ‘rehire’ is at most legal fiction. We do not adopt this fiction.”). In any
event, Plaintiffs also agreed not to “accept employment” with Giant. The Agreement is pellucid,
then, that the employees who sign may not be recalled or otherwise seek or accept employment
with Giant in the future.
b. Omission of Recall-List Option
Instead of focusing on the terms of the Agreement, Plaintiffs principally argue that Giant
omitted to tell them about the alternative to signing the Agreement – namely, the six-month recall
list – which is not explicitly set forth in the Agreement. There are three difficulties with
Plaintiffs’ position. First, although the recall option was not discussed in the Agreement,
Plaintiffs knew that by signing they would not be recalled. This was the thrust of section (a),
supra. Second, as explained below in subsection (i), the record demonstrates that Plaintiffs did
actually know about the recall option. Finally, as subsection (ii), infra, makes clear, it is
undisputed that Giant clearly told Plaintiffs’ representatives – i.e., the Unions – about the two
choices.
i. Plaintiffs’ Personal Knowledge
Plaintiffs’ position that they did not understand the alternative to signing the Agreement
lacks concrete factual support in the record. Most specifically, their Opposition identifies only
19
one Plaintiff’s deposition that backs up their assertion that Plaintiffs “were not advised of the
option to be placed on the six month recall list.” Opp. at 43.
Plaintiff Sharron Foster, a member of Local 730, testified that, at the meeting “for the
people that was being laid off,” a representative from Giant’s management was present, as was
Ritchie Brooks, President of Local 730, who had participated in the “effects bargaining” with
Giant on behalf of Local 730. See Pl. Exh. 18 (ECF No. 144-1) (Deposition of Sharron Foster)
at 91:1-6. The Giant representative explained to the employees how they would “be getting paid
for our severance pay, [based on] the years of service that [they] put in,” and that they would be
receiving “the separation agreement.” Id. at 92:12-19. Some employees asked questions, but
Foster stated that she could not recall either those questions or the answers Giant gave to them;
she testified that she “can’t recall” whether anyone asked about a recall. See 99:3-9. Foster
could not state with certainty that the employees were not advised, at that meeting, of the option
to be placed on the six-month recall list if they opted out of the severance pay and chose not to
sign the Agreement. Instead, she testified only that the Giant representative did not state whether
there would actually be a recall or not – i.e., whether Giant would, in fact, need to recall
employees whose names were on the six-month recall list:
Q: . . . In June of 2012 [when you signed the Severance and
Release Agreement] did you know whether or not you had any re-
call rights in your Collective Bargaining Agreement?
A: No.
Q: You didn’t know one way or the other?
A: That I knew I have re-call, no. Not at that time, no, I
didn’t.
Q: Okay. At the time did you know what re-call rights were?
A: Did I know what they were. You’re asking me do I know
what it mean?
Q: At the time did you know what it meant?
A: Re-call means I could be re-called to come back – to work
if needed for me to be re-called.
20
Q: But you didn’t know whether you had a right to that or
not?
A: No, I didn’t. I wasn’t told that I had a re-call right.
Q: And did you ask anybody?
A: At that time?
Q: Yes.
A: Well, in the break room they said – they didn’t mention
anything about a re-call.
Q: Okay.
A: That I can recall. I can’t –
Q: One way or the other?
A: I wasn’t re-called.
Q: Say that again.
A: I mean, you said one way or the other. I said I wasn’t re-
called.
Q: No, I’m saying at that meeting did he say anything one
way or the other about whether there would be a re-call?
A: No, because he said it wasn’t going to be no more work
for us for a re-call, so, no. . . .
Q: But did he say anything about a re-call?
A: He didn’t tell us that there would be a re-call. No, he
didn’t.
Q: Did he tell you there would not be a re-call?
A: He didn’t tell us that there would be a re-call.
Q: My question was, did he tell you there would not be a re-
call?
A: He didn’t tell us that it would be a recall; because if he
told us that there would be a re-call, I wouldn’t have signed that
form.
Q: I understand. Maybe I’m not being clear. You said he
didn’t say there would be a re-call, right?
A: He didn’t mention anything about a re-call.
...
Q: Did anybody ask if there was a re-call?
A: I can’t recall. It was questions. I can’t recall exactly
whether somebody asked whether there was going to be a re-call or
not.
Q: Did he talk about the possibility of a re-call?
A: No.
Id. at 96:7-99. This confused colloquy is hardly enough to raise the specter of misrepresentation
or omission by Giant, yet Plaintiffs ask the Court to conclude, based on this alone, that Plaintiffs
were not aware that they were signing away their recall rights when they agreed to accept
21
severance pay. Foster’s testimony, however, is not enough to create a dispute of material fact,
particularly given the countervailing evidence in the record.
To begin, Defendants point the Court to the deposition of Ferline Buie, President of Local
922, in which she testified that she had a meeting with Union members on June 5, 2012, to
discuss the information she had been given from Giant’s representatives during the “effects
bargaining” process. See Pl. Exh. 22 (ECF No. 144-5) (Deposition of Ferline Buie) at 26:1-11.
Buie testified that, although she did not officially take attendance at the meeting, “[i]t seems that
everybody [from the Union] was there because I had the meeting at a time wherein the shift
crossed over. In other words, the a.m. people would be getting off and the p.m. people would be
coming in. So all of them would be right there together. . . . [including the members who worked
on the third, night shift who] were there.” Id. at 26:18-27:7. There, she said, “I think somebody
asked me should they sign the severance package. And I said to them, I can’t tell you to sign it.
I can’t tell you not to sign it because I don’t know your condition. But what I will tell you is that
if you sign it you will not be eligible for a recall.” Id. at 41:2-7. This suggests that the Unions,
contrary to Plaintiffs’ suggestion, never sought to hide the ball as to the Agreement and its effect.
Similarly, the record indicates that Giant made substantial efforts to familiarize Plaintiffs
with the Agreement and its terms. Kelli Hall, Human Resources Manager for Giant, stated that
she “met with the associates” to be terminated “on an individual basis, with each meeting lasting
approximately ten minutes. The associates were informed that, if they signed the Separation and
Release Agreement, then they would receive severance pay based on their length of service with
the Company, but if the associate declined to sign the Separation Agreement then he or she
would be eligible to be placed on the recall list for potential rehire.” Hall Declaration, ¶ 7.
22
This testimony is bolstered by the sworn affidavit of Plaintiff Donchez Coates, a member
of Local 922 who signed the Agreement. See Def. Exh. 25 (ECF No. 133-5) (Affidavit of
Donchez Coates). Coates recalled the meeting with Buie at which she explained that some of the
members of Local 922 would be laid off. Id. at 4. Later, he stated, “There was a Giant meeting
run by human resources . . . for the people who were being let go.” Id. at 5. The meeting was
run by “Kell[i] Hall and another lady from human resources,” and afterward Hall spoke
individually with each employee about the severance package. Id. During his conversation with
Hall, Coates had the following exchange:
When I went in the hallway with Kell[i] she went over some forms
with me. She told me that if I took a severance package, I would
lose the opportunity to be called back to work within six months. I
asked if there was a guarantee that I would be called back. She said
no. I asked if I don’t take the severance package, then I won’t get
the money, but I could be called back. . . . I wasn’t allowed to give
her the signed severance agreement because she told me to take it
home and let someone else look at it. I had to wait three days to
give her back the signed severance agreement. I gave Kell[i] the
signed severance agreement after the three days.
Id. Giant points to Coates’s affidavit in support of the proposition that the Company did explain
to members of the Unions that, among the various consequences of signing the severance
agreement was the inability to be included on a six-month recall list. See Giant Reply at 9.
Indeed, Plaintiffs agree that Coates, and four other Plaintiffs, even attended a meeting with Giant
representatives on June 5, 2012, during the effects bargaining, in which the impending layoffs,
the separation agreement, and the employees’ recall rights were discussed. See Pl. Resp. to
JSOF, ¶ 43.
At the end of the day, Foster’s equivocal testimony is the only evidence in the record that
Plaintiffs cite in support of the notion that they did not know they would opt out of being on a
recall list by signing the Agreement. See Fed. R. Civ. P. 56(c)(3) (court “need consider only the
23
cited materials”). This is simply not enough to defeat summary judgment. “The mere existence
of some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine issue of
material fact.” Anderson, 477 U.S. at 247-48. The material question here is whether Giant failed
to mention the recall option, and nothing Plaintiffs have proffered creates a genuine dispute as to
that.
ii. Plaintiffs’ Knowledge Through Unions
Even if the above evidence were insufficiently clear, Plaintiffs cannot dispute that their
representatives (the Unions) were expressly told of the recall option. Indeed, it appears in the
Memorandum of Understanding Giant signed with each of the Unions on June 18, 2012. Those
MOUs memorialize the negotiations between Giant and the Unions and state that the employees
who will be “separated from the company on June 30, 2012 . . . will have the option to collect
severance as specified . . . or elect to decline severance and be placed on the Recall list for (6)
months.” Local 922 MOU; see also Local 730 MOU (same). It thus does not matter that Giant
“did not provide copies of the MOUs to the impacted associates.” Pl. Resp. to JSOF, ¶ 86.
According to the company, the arrangement made sense in part because the six-month
list was a component of its understanding with the Unions and was not actually a term of the
Agreement itself. See Giant Reply at 8 (asserting that although the terms incorporated into the
MOUs represent the agreement between the company and the Unions, “[t]he Separation and
Release Agreements, in contrast, were solely between the individual Plaintiffs and Giant”).
Indeed, the Unions themselves wanted to be responsible for informing their members about the
Agreement, including its alternative. See Scott Dep. at 106:10-16 (explaining that Giant’s senior
management and the Unions decided, at the urging of the Unions, that it would be best if the
24
Unions notify Giant’s employees of the 2012 lay-off, so that “the communication c[a]me from
the Union to the associates”). Nothing in the record suggests that Giant directed the Unions to
misrepresent to their members either the nature of the Agreement or the specifics of the
negotiations, including the recall-list option.
In addition, while Plaintiffs insist that the Unions never informed them that signing the
Agreement meant giving up recall rights, see Opp. at 43, any failure of the Unions to
communicate details about their bargaining with Giant and the resulting accord cannot be an
omission by Giant. A plaintiff typically cannot “make out a claim for rescission of a contract
based on misrepresentation” under Maryland law if “Plaintiff’s agent made the representation,
not the opposing party.” Hsue Tung v. Peters, No. 09-576, 2009 WL 5206627, at *3 (D. Md.
2009); cf. Chrysler Workers Ass’n v. Chrysler Corp., 834 F.2d 573, 578, 581-82 (6th Cir. 1987)
(holding, in case where Plaintiffs argued that “they did not know their recall rights were
extinguished” as result of an agreement between their employer and their union resulting in their
transfer to new plants, that “[w]hether or not plaintiffs knew . . . of the terms of the preceding
June letter agreement, it was a valid, reasonable and binding agreement entered into by [the
company] and the plaintiffs’ collective bargaining representative . . . . Plaintiffs undeniably had
the opportunity to ask the Union about their status as [company] employees. There was no
‘affirmative’ act of concealment.”). In short, inasmuch as Plaintiffs maintain that they did not
understand that they had a choice between receiving severance pay upon termination or holding
out for the possibility of being rehired, they never successfully connect that misunderstanding to
a misrepresentation or omission by Giant.
25
3. Misrepresentation re: Slim Chance of Recall
The second material alleged misrepresentation is that Giant told Plaintiffs that, should
they choose not to sign the Agreement, they would face only a slim chance of being recalled
within the following six-month period. With regard to this issue, the dispute is not over whether
Giant so told Plaintiffs, but whether such representation was false.
As a preliminary matter, it is difficult to discern from Plaintiffs’ disjointed briefings
precisely which representations made by Giant they believe were false. What is clear is that the
employees are convinced that what they were told, prior to signing the Agreements, about the
general “lack of work” for Union members was not correct. For instance, Plaintiff Foster
testified that she was told the terminations were “due to the lack of work; it wasn’t enough room
in the warehouse for all of us . . . . And we really didn’t have any option whether we could be
laid off or not because it wasn’t – it wasn’t going to be enough work there for us.” Foster Dep. at
91:20-92:4. But these statements were made by a representative of the Union, not by Giant.
Plaintiff Coates, for his part, stated in his affidavit that he “never asked [Giant HR representative
Kelli Hall] if there was a lack of work.” Coates Affidavit at 5.
Plaintiffs most clearly explain what they believe to be Giant’s misrepresentations in their
NLRB Charges. There, they stated that
[c]omplainants [Plaintiffs] and others were told that there would be
no question and absolutely more future layoffs, that “Giant did not
want them anymore,” they had better sign the agreement, there was
no more work for them to do, they should go look for other work,
among other things.
Reluctantly, the complainants signed the Giant severance
agreement under the belief that there was no more work in the
warehouses, there would be imminent future layoffs and that their
jobs were gone forever.
26
However, in or about August 14, 2012, (approximately 6
weeks later), the complainants learned that . . . there was no shortage
of work at the Giant Jessup Warehouse where they had worked; . . .
that Giant had hired back workers on July 1, 2012, the next day after
complainants were laid off; . . . that Giant rehired at least 3 of the
union workers who had secret conversations with union leaders back
at the Jessup Warehouse and were secretly told not to sign the
severance agreement.
NLRB Charges at 2-3.
Giant, however, maintains that its representations regarding the lack of future work for
Plaintiffs were entirely accurate. Testimony from the company’s leadership establishes that the
layoffs were motivated by Giant’s “reduced need for associates” in its recycling facilities as a
result of the closure of the dry-goods facility formerly operated by C&S. See Scott Dep. at
58:10-15. In other words, Giant’s consolidation of the fresh-foods recycling facility with the
dry-goods recycling facility and the ensuing greater efficiency of its recycling operations meant
that there were fewer jobs. The company, accordingly, decided to terminate twenty of its
employees – including Plaintiffs. See Pounds Dep. at 45:19-46:16 (describing increased
efficiencies as a result of facilities consolidation). Plaintiffs even admit that “evidence in the
record shows that Giant over a period of more than 10 years has been trying to get out of the
‘distribution’ business and to simply operate its retail stores.” Pl. Resp. to JSOF, ¶ 20. In sum,
Plaintiffs have not pointed to evidence creating a jury question as to whether the company was
correct − in its assessment at the time before the derecho struck − that Plaintiffs’ jobs were no
longer needed and that Giant would not need to recall workers to fill them.
Plaintiffs instead cite evidence that they believed there was plenty of work for them to do,
implying that Giant must therefore have known that a recall would be likely or even inevitable.
See Opp. at 48; Pl. Resp. to JSOF, ¶¶ 29-33. On that point, however, the Court concurs with
Defendants that “[w]hether Plaintiffs believe that the Company’s judgment concerning the
27
conduct of its operations was correct is wholly irrelevant.” Giant Reply at 20. For if Plaintiffs
simply had a different view as to the amount of work available at the Jessup facilities in June
2012, then what they posit is merely a difference of opinion, not a misrepresentation. Divergent
opinions, of course, do not constitute misrepresentations and cannot form the basis for a
rescission of an otherwise valid contract. See Hall, 94 A. at 531. No reasonable juror could
conclude, from Plaintiffs’ testimony, that Giant did not believe, at the time it signed the
Agreements, that a recall was unlikely.
Giant admits that it did bring on board new recycling personnel – via recalls and new
hires – after Plaintiffs were laid off. See Scott Dep. at 65-66. But it explains that these positions
were motivated by the derecho of June 30, 2012, and caused Giant to lose power to more than
seventy of its stores. See id. at 152:12-153:6-7 (“Every available refrigerated trailer [at the
recycling facilities] needed to be cleaned or emptied and put into service as quickly as
possible.”). Before that storm, Giant maintains that it did not authorize the hiring of temporary
workers to perform work that laid-off employees would have been performing. Id. at 156:11-
157:11. Plaintiffs, for their part, dispute the derecho theory of the new hires, pointing to
testimony of Plaintiffs Jackson, Cherry, and Christopher indicating that they did not notice that
Giant’s operations at the Jessup facility were affected after the storm. See, e.g., Pl. Exh. 16 (ECF
No. 143-7) (Deposition of William Christopher) at 124:14-17 (“Q: Do you remember what was
going on at work on the 30th of June 2012 as a result of the storm? A: Nothing. We was
working.”). But testimony that operations at Jessup were not affected right away is not
inconsistent with Giant’s statement that the power outages at its retail stores necessitated
increased use of the refrigerated trailers stored in Jessup.
28
More important, Plaintiffs cite nothing in the record supporting their assumption that
Giant used the derecho as an excuse to hire new employees to do the work that Plaintiffs had
been doing before their termination. In other words, Plaintiffs have offered neither argument nor
evidence that this was a situation in which Giant misrepresented the amount of work it needed
done in order to hire cheaper (i.e., less senior or part-time) employees to perform work
previously performed by Plaintiffs. What is more, if this had been such a situation, it would be
precisely the type of employer conduct to which Unions would typically object; here, however,
the Unions had no quarrel with the Severance and Release Agreement and its terms. And the
crucial fact remains that Giant’s July 2012 hires and rehires are not inconsistent with any
representations it made or implied at the time Plaintiffs signed their Agreements regarding the
slim chance of a future recall. In short, Plaintiffs’ proffers are insufficient for a jury to determine
that a misrepresentation was made, as required for rescission of the Agreement. See Parker v.
Prudential Ins. Co. of Am., 900 F.2d 772, 777 (4th Cir. 1990).
In Plaintiffs’ Opposition, they also seem to argue that Giant misrepresented to them in
April 2012 that they were not at risk of termination, notwithstanding layoffs occurring elsewhere
in the company; then, only months later, Plaintiffs were, in fact, laid off. See Opp. at 43. But for
purposes of the Agreement, representations made in April 2012 are irrelevant, as they had no
connection with the severance packages. First, “[i]t is undisputed that they [Plaintiffs] would
have been laid-off whether they signed the Separation Agreements or not. The Agreements
simply provided money in exchange for a release of claims.” Giant Reply at 15. Second, only
the representations Giant made in June 2012, when Giant presented the Separation Agreements
to Plaintiffs and when Plaintiffs agreed to sign them, are relevant for purposes of a claim for
rescission of the Agreement. Plaintiffs could not justifiably rely on representations about Giant’s
29
termination decisions that the company made in April where they differ from those made on the
same issue in June, at the time Plaintiffs were considering whether to sign the Agreements. See
Ryan v. Brady, 366 A.2d 745, 750 (Md. Ct. Spec. App. 1976) (“It is well established in Maryland
that to be entitled to this somewhat extraordinary relief [of rescission of a contract] there must be
proof of justifiable reliance on a material misrepresentation.”) (citing Chesapeake Homes, Inc.,
240 A.2d at 249); see also McCormick & Co. v. Childers, 468 F.2d 757, 766 (4th Cir. 1972)
(noting, where plaintiff sought to rescind contract based on material misrepresentation, pursuant
to Maryland law, that “[i]t is most important to ascertain, in the first place, whether the statement
was such that the party was justified in relying upon it, or was such, on the other hand, that he
was bound to inquire and examine into its correctness himself. In respect to this alternative,
there is a broad distinction between statements of fact which really form a part of, or are
essentially connected with, the substance of the transaction, and representations which are mere
expressions of opinion, hope, or expectations, or are mere general commendations.”) (quotation
marks and citation omitted).
Ultimately, then, no reasonable juror could find that Giant misrepresented the situation
that, at the time the Agreements were signed by the parties, there was not a strong likelihood that
it would need to recall terminated employees within six months. Rather than being misled by
Giant, Plaintiffs seem to be experiencing a classic case of buyer’s remorse, but “[n]either a
party’s subsequent dissatisfaction with a contract, nor a party’s failure to read a contract are
adequate reasons for rescission of a contract.” Hsue Tung, 2009 WL 5206627, at *3. In fact,
much of Giant’s conduct leading up to the signing of the Agreements – the effects bargaining
with Union representatives, the group and individual meetings with Plaintiffs to explain the
Agreements, the 45-day period to review the Agreements, the 7-day revocation period, the
30
encouragement that Plaintiffs have a lawyer examine the Agreement, and the plain language of
the Agreement itself – reflects a good-faith attempt to give Plaintiffs a fair opportunity to
consider the terms of the severance package. If Plaintiffs, despite these efforts, still labored
under misunderstandings about the nature and effects of the Agreement, such misunderstandings
are a unilateral mistake, not one induced by a misrepresentation. And under Maryland law, “a
unilateral mistake is ordinarily not a ground for relief from a contract.” Creamer v. Helferstay,
448 A.2d 332 (Md. 1982); see also Hsue Tung, 2009 WL 5206627, at *4 (where a party to a
contract asserts a “misunderstanding of the contract and [a] view that his attorney” or other
representative “made a mistake in signing” or encouraging him to sign “the agreement,” such
assertions “are all unilateral mistakes and thus do not provide ground for rescission of the
contract.”). Plaintiffs have thus failed to establish a dispute of fact from which a jury could
conclude that Giant induced them to sign the Agreements through material misrepresentations.
4. ADEA
For the first time in their Opposition, Plaintiffs argue that the waiver in the Agreements
somehow violated the Age Discrimination in Employment Act. See Opp. at 50-51. They
concede that the Agreement lists the ADEA as one of the statutes under which Plaintiffs’ claims
against Giant are waived, but they argue that the ADEA requires that a waiver of rights be
knowing and voluntary and sets forth guidelines for how such voluntariness may be assessed.
See id. at 51; see also 29 U.S.C. 626(f)(1). Because four of the Plaintiffs – Mathis, Ward,
Christopher, and Foster – are over the age of forty, Plaintiffs believe they are covered by the
ADEA and did not knowingly and voluntarily waive their ADEA rights.
This argument seems to misunderstand Giant’s position entirely. To begin, Plaintiffs
themselves acknowledge that they did not allege any claims under the ADEA in their Amended
31
Complaint. See Opp. at 51 n.7. Giant argues simply that the release provision covers the claims
that Plaintiffs did plead – viz., their hybrid section-301/fair-representation claim. It takes no
position as to the applicability of the Agreement’s waiver provision as to any claims Plaintiffs
did not plead – including any they might have under the ADEA. Nor need the Court address that
issue, for the question of whether the Agreement complies with the requirements of the ADEA is
irrelevant in a case where the Complaint does not state such a claim.
5. Failure to Revoke
As a final point, Giant correctly underscores that even if it did misrepresent facts material
to the Agreement, Plaintiffs are still not entitled to rescission. Maryland law requires that parties
seeking rescission of a contract as a result of a misrepresentation invoke such a remedy or
otherwise attempt to revoke the contract “promptly . . . once a party discovers facts which justify
it.” Cutler v. Sugarman Org., Ltd., 596 A.2d 105, 110 (Md. Ct. Spec. App. 1991) (quotation
marks and citation omitted); see also Finch v. Hughes Aircraft Co., 469 A.2d 867 (Md. 1984) (“A
plaintiff seeking rescission must demonstrate that he acted promptly after discovery of the
ground for rescission.”). Maryland courts have held that “[r]escission requires at a minimum that
a party exercising a right to rescind notify the other party and demonstrate an unconditional
willingness to return to the other party both the consideration that was given and any benefits
received.” Cutler, 596 A.2d at 111. Should a party seeking rescission fail to “exercise [the right
to rescission] within a reasonable time, which is determined, in large part, by whether the period
has been long enough to result in prejudice,” id., a court many deny the relief sought. Further,
“Maryland decisions” have found that “there was a waiver of the right to rescind . . . on the basis
of an affirmative act of ratification of the contract or some other act which evidences an intent to
benefit from the transaction or which renders restoring the parties to their original position
32
impossible or difficult.” Merritt v. Craig, 746 A.2d 923, 928 (Md. Ct. Spec. App. 2000); cf.
Benjamin v. Erk, 771 A.2d 1106, 1120 (Md. Ct. Spec. App. 2001) (“Within days of discovering
the alleged fraud, appellees demanded rescission, asking to withdraw from the transaction.”).
Here, Plaintiffs filed their Group Grievances in August of 2012, not long after the
Agreements were signed at the end of June. As Giant notes, however, “no Plaintiff has ever
revoked, or attempted to revoke, their Separation Agreement.” Giant Reply at 15 (citing Def.
JSOF, ¶¶ 114-116). Plaintiffs assert, without citing to any specific record evidence, that “some
Plaintiffs testified and/or offered during their depositions to return the money to get their jobs
back [via a recall] and that had Giant offered them jobs back they would have gladly returned the
money.” Pl. Resp. to JSOF ¶ 116. Crucially, they do not contend that they made any actual
attempts to revoke the Agreement at any point before this litigation.
Plaintiffs admit, furthermore, that “they did receive their separation payments.” Id.,
¶ 115. To the best of the Court’s knowledge, all Plaintiffs retained such payments, without ever
attempting to repay Giant in exchange for being placed on a six-month recall list. See, e.g., Def.
Exh. 6 (ECF No. 131-6) (Deposition of Donna Ward) at 125:18-20 (“Q: At any time did you
return that money to the company? A: No sir.”). And while some Plaintiffs indicated that they
would have liked to trade the severance pay they received for a recalled position with Giant, see
Def. Exh. 5 (ECF No. 131-5) (Deposition of Ralph Jackson) at 100:7-10, that suggestion hardly
constitutes an actual attempt at revocation. That Plaintiffs would have been amenable to
revocation does not mean that they took affirmative steps to revoke the Agreement. Nor would
the trade they describe be a true revocation of the Agreement, since Plaintiffs would only have
been placed on a recall list had they not signed the Agreement; they would not have been
recalled as a direct result of revocation. In sum, Plaintiffs did not properly satisfy the prompt-
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revocation element of a claim for rescission under Maryland law. This, therefore, is an
alternative ground on which Giant prevails.
***
As Plaintiffs have failed to establish that a material misrepresentation by Giant induced
them to sign the Agreements, the Court must conclude that they are binding on Plaintiffs –
including the provision releasing Giant from any claims related to their employment or
termination. Based on the undisputed material facts, the Court finds that Plaintiffs have waived
the claims they now seek to assert against Giant. The company, therefore, is entitled to judgment
as a matter of law, and the Court will grant its Motion.
B. Hybrid Claim Against Unions
Although the Agreement’s waiver provision releases Giant from any claims Plaintiffs
might have had against the company, it has no effect on whether they may sue the Unions. This
is because the Agreement’s “Complete Release of Claims” provision only states that signatories
release
the Company, all affiliated or related companies or subsidiaries,
their parents, predecessors, successors, and affiliates (including but
not limited to Giant of Maryland LLC, Giant Food LLC, Ahold
USA, Inc., and Koninklijke Ahold N.V.), and with respect to each
entity, all of its shareholders, directors, officers, agents, attorneys,
employees, representatives, assigns and owners, whether past,
present, or future (collectively, the “Released Parties”).
Agreement, ¶ 3. As the Unions are clearly not among the “Released Parties,” the Court next
moves to the merits of the claim against those Defendants.
By way of reminder, Plaintiffs’ only remaining cause of action against the Unions – the
hybrid section-301/fair-representation claim – requires them to prove both that Giant breached
the CBAs by terminating Plaintiffs in June of 2012 and that the Unions breached their duty of
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fair representation when they negotiated the termination and severance agreements with the
company. The Supreme Court has explained that “to prevail against either the company or the
Union” in a hybrid claim, “employee-plaintiffs must not only show that their discharge was
contrary to the [CBA] but must also carry the burden of demonstrating a breach of duty by the
Union. . . . The employee may, if he chooses, sue one defendant and not the other; but the case
he must prove is the same whether he sues one, the other, or both.” DelCostello v. Int’l Bhd. of
Teamsters, 462 U.S. 151, 164-65 (1983) (alteration, quotation marks, and citation omitted).
In this case, the Court ultimately concludes that Plaintiffs cannot prevail on their hybrid
claim against the Unions because the undisputed material facts show that Giant did not breach
the CBAs; it thus need not consider the fair-representation issue. See Burnett v. Wash. Metro.
Area Transit Auth., 139 F. Supp. 3d 231, 236 (D.D.C. 2015) (“[T]he absence of a genuine
question of material fact in the defendants’ favor on either prong is fatal to [Plaintiffs’] entire
[hybrid] claim.”). It bears noting that this merits determination – viz., that Plaintiffs have failed
to establish half of their hybrid claim – also serves as a separate basis to grant Giant’s Motion.
For even in the absence of any waiver, Plaintiffs cannot prevail against Giant on a hybrid claim
where they cannot satisfy one of its two prongs.
To establish the CBA-breach component of their hybrid claim, Plaintiffs assert that Giant
violated its CBAs with the Unions by (1) terminating Plaintiffs “when there was work to
perform”; (2) conducting layoffs without regard to seniority; (3) recalling former employees
without regard to seniority; (4) failing to recall Plaintiffs or put them on notice of such recall; (5)
authorizing supervisors to perform Union members’ work; and (6) authorizing non-Union
workers to perform Union members’ work. See Opp. 66-71. The Court examines each of these
alleged breaches separately.
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As to the first, the Court has already explained that there is no material dispute that
Giant’s decision to terminate Plaintiffs was, in fact, the result of a decrease in work. Plaintiffs do
not disagree – nor could they – that Giant “retained the entrepreneurial right to consolidate its
recycling operations and lay off the employees as a result of the expected gained efficiencies,”
notwithstanding the CBAs. See Giant Reply at 18; see also First Nat’l Maintenance Corp v.
NLRB, 452 U.S. 666, 686 (1981) (NLRA does not require employer to bargain with union “in
deciding whether to shut down part of its business purely for economic reasons”). Indeed, none
of the provisions of the CBAs cited by Plaintiffs suggests that Giant was somehow bound not to
consolidate recycling facilities and terminate redundant employees, nor do they set forth
guidelines for such terminations. Compare Opp. at 66-67 (arguing that “Giant breached Articles
VII, X, XIV of Local 922’s CBA and Articles 1, 15, 15.3F, [15.3]G(3), 22 of Local 730’s CBA in
calling a layoff due to lack of work”) with Def. Exh. 11 (ECF No. 132-1) (Local 922 CBA) at 5
(Article VII, “Seniority”), 9 (Article X, “Grievances and Arbitration”), 10 (Article XIV, “Work
Week and Overtime”); and Def. Exh. 10 (ECF No. 131-10) (Local 730 CBA) at 4 (Article 1,
“Supervisory Personnel”), 11-12 (Articles 15, 15.3F, 15.3G(3), “Seniority”), 16 (Article 22,
“Grievances and Arbitration”). Giant thus did not breach the CBAs by laying off workers as
result of the consolidation of its facilities.
Nor did the company violate the CBAs by conducting layoffs without regard to seniority,
belying Plaintiffs’ second asserted breach. To be sure, both CBAs require that seniority play a
role in determining layoffs. See Local 730 CBA at 11-12 (Article 15.3A, “Seniority alone will
govern in layoffs . . . provided the employee with seniority is capable of fully performing the
job”); see also Local 922 CBA at 5 (Article VII.2, “The principle of seniority shall apply in all
cases of decrease or increase of the working forces, provided the employees have the ability to
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do the work in a satisfactory manner”). The only evidence Plaintiffs marshal in support of their
claim that Giant breached these provisions, however, is an inconclusive suggestion that Curtis
Pumphrey, a member of Local 730 but not a Plaintiff, should not have been laid off when Gloria
Royster, over whom he purportedly had seniority, was allowed to keep her job. See Opp. at 67-
68. Given that Pumphrey is not a Plaintiff and that Plaintiffs themselves are unsure of his
seniority date, see id. at 68, this is hardly enough to create a factual dispute as to Giant’s conduct,
particularly where there is countervailing evidence that Giant did comply with the seniority rules.
Cf. Pl. Exh. 62 (ECF No. 145-12) (“Job Titles and Ages of Giant Recycling Facility Employees
Selected for Separation”) at 1 (noting that employees listed “were considered for separation
pursuant to the number of positions available and the seniority process established in the
Collective Bargaining Agreements between Local 730-4, Local 922 and the Company”). These
are hardly “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at
324 (quoting Fed. R. Civ. P. 56(e)).
Skipping the third allegation for the moment, Plaintiffs’ fourth point that Giant’s “failure”
to recall them breached the CBAs is similarly dead on arrival. There is no dispute, as the
foregoing analysis elucidates, that they opted out of any rights to rehire that they might have had
under the CBAs by signing their Separation and Release Agreements and accepting severance
payment instead. For the same reason, Plaintiffs’ assertion that Giant never notified them of a
recall occurring after their termination and their decision to opt out of the recall list is equally
unavailing.
Plaintiffs’ remaining three asserted breaches of the CBA – which they number (3), (5),
and (6) – all fail because they were not included in their Group Grievance. The Grievance
claimed that Giant “illegally and wrongfully terminated and discharged” Plaintiffs “under false
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pretenses . . . and misrepresentations that allegedly there was no more work . . . , that the
company was getting ready to have more lay-offs, that there was no room or work space,” and
alleged that “Giant also violated the contract/CBA and other laws through deceit and
fraudulently inducing these . . . former Giant employees into wrongfully waiving their rights,
privileges and claims against it under false pretenses.” Def. Exh. 41 (ECF No. 134-1) (Aug. 16,
2012, Group Grievance) at 3. No grievance about seniority-based recalls or authorizing
supervisors or non-Union members to perform work appears.
As the Supreme Court has explained: “It has long been established that an individual
employee may bring suit against his employer for breach of a collective bargaining agreement.
Ordinarily, however, an employee is required to attempt to exhaust any grievance or arbitration
remedies provided in the collective bargaining agreement.” DelCostello, 462 U.S. at 163
(internal citations omitted); see also Daigle v. Gulf State Utils. Co., Local Union No. 2286, 794
F.2d 974, 977 (5th Cir. 1986) (“If the arbitration and grievance procedure is the exclusive and
final remedy for breach of the collective bargaining agreement, the employee may not sue his
employer under § 301 until he has exhausted the procedure.”).
An exception may exist where “the union representing the employee in the
grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory
fashion as to breach its duty of fair representation.” DelCostello, 462 U.S. at 164. That is not
the case here. While Plaintiffs may believe the Unions did not sufficiently prosecute the
Grievance actually filed, they offer no evidence or argument that the Unions improperly failed to
include in such Grievance the three aforementioned issues. Once again, the heart of their
Grievance (and this suit) relates to their termination, not about who performed Union-members’
work.
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In sum, none of Plaintiffs’ allegations concerning Giant’s purported breach of the CBAs
leaves the starting gate, thus hobbling their ability to put their hybrid claim in the running against
the Unions – or, for that matter, against Giant. As the employees are unable to establish one of
the requisite halves of their claim against the Unions, the Court will grant those Defendants’
Motions for Summary Judgment as well.
IV. Conclusion
For the foregoing reasons, the Court will grant Giant, Local 922, and Local 730’s
separate Motions for Summary Judgment and enter judgment in Defendants’ favor. A
contemporaneous Order to that effect will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: September 1, 2016
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