United States Court of Appeals
For the First Circuit
No. 10-2488
WENDY BALSER,
Plaintiff, Appellant,
v.
INTERNATIONAL UNION OF ELECTRONIC, ELECTRICAL,
SALARIED, MACHINE & FURNITURE WORKERS (IUE) LOCAL 201
and GENERAL ELECTRIC COMPANY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. Magistrate Judge]
Before
Torruella, Lipez, and Howard,
Circuit Judges.
Mitchell J. Notis, with whom Law Office of Mitchell J. Notis,
was on brief for appellant.
Laura M. Raisty, with whom Keith B. Muntyan and Morgan, Brown
& Joy, was on brief for General Electric Company.
Brian J. Rogal, with whom Angoff, Goldman, Manning, Wanger,
Hynes & Dunlap, P.C., was on brief for IUE Local 201.
November 16, 2011
TORRUELLA, Circuit Judge. Plaintiff-Appellant Wendy
Balser ("Balser") appeals the district court's award of summary
judgment to her employer, General Electric Company ("GE"), and her
collective bargaining agent, International Union of Electronic,
Electrical, Salaried, Machine & Furniture Workers Local 201 ("Local
201" or "Union"), on her allegations of wrongdoing by both
companies for violations of her rights as an employee pursuant to
section 301 of the Labor Management Relations Act ("LMRA"), 29
U.S.C. § 185. Specifically, Balser claims that (1) GE violated the
collective bargaining agreement between itself and the Union when
it reclassified a position for which she was hired, resulting in
her subsequent removal from that position; and (2) the Union
violated its duty of fair representation in colluding with GE to
reclassify her position and in refusing to take her filed grievance
to arbitration. We conclude that the district court properly
granted summary judgment as to Balser's claims and affirm the
district court's decision. Balser v. IUE Local 201 & Gen. Elec.
Co., No. 08-11376-LTS, 2010 WL 3927719 (D. Mass. Oct 4, 2010).
I. Background
A. Balser's Work at River Works
GE, a multinational company that does business in the
Commonwealth of Massachusetts, is composed of several divisions.
One of its divisions is General Electric Aircraft Engines, which
manufactures jet engines for both commercial and military use and
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has a manufacturing facility, River Works, in Lynn, Massachusetts.
GE hired Balser in July 2007 to work as a "Zyglo Inspector"1 at the
River Works facility; this position required her to engage in the
nondestructive testing of parts to be used in the construction of
aircraft engines. In preparation for this position, Balser was
required to undergo approximately four hundred hours of on-the-job
training, after which she became certified to perform Zyglo-related
work.
Local 201 is a labor union that exclusively represents GE
employees at the River Works facility. Since the start of her
employment at River Works, Balser has, by virtue of her position,
been a member of Local 201 and subject to the terms of a Collective
Bargaining Agreement ("CBA") between GE and Local 201 that governs
the basic terms and conditions of employment for all union members
employed at River Works. The CBA consists of three agreements: (1)
the 2007-2011 National Agreement between GE and IUE-CWA, the
Industrial Division of the Communications Workers of America, AFL-
CIO, CLC and its affiliated locals, which include Local 201
("National Agreement"); (2) the 1974 Local Understanding Upgrading
and Job Posting Agreement; and (3) the 1977 Supplemental
Agreement's Layoff and Transfer Supplement. The third agreement,
1
Balser referred to this position as "Zyglo Inspector" in her
Complaint and at deposition. The position's full name is
technically "Inspector Non-Destruct." For purposes of this appeal
and for the sake of consistency, we adopt Balser's "Zyglo
Inspector" terminology.
-3-
the Layoff and Transfer Supplement, provides that day-work
employees who have been laid off "will be transferred to any
equally rated or higher rated open classification in the [River
Works] Plant, exclusive of upgrading, for which they are qualified
considering their [River Works] Plant employment record."
B. Balser's Layoff and the Search for Zyglo Sorters2
It is common practice for GE to complete "Requests for
Help" when it anticipates needing additional employees in a
particular field or position, whether due to increased need or in
order to replace a retiring or temporarily absent employee. GE
also commonly tries to fill such positions in advance of the
expected vacancy.
In January 2008, GE predicted a need for two "Zyglo
Sorters," a position that also involved the non-destructive testing
of aircraft engine components. Zyglo Sorter positions generally
were highly coveted in GE because employees were paid according to
the amount of work completed and not on an hourly basis, creating
the potential to earn significantly more money than other
positions. For this reason, Zyglo Sorter openings typically were
filled by senior employees eligible for an upgrade; however, such
positions also could -- though in practice tended not to -- be
2
Balser referred to this position as "Zyglo Sorter" in her
Complaint and at deposition. The position's full name is
technically "PW Zyglo Sorter," with "PW" meaning "piecework." For
purposes of this appeal and the sake of consistency, we adopt
Balser's "Zyglo Sorter" terminology.
-4-
filled by employees transferring from one job to another due to
lack of work.
At that time, GE management believed two current Zyglo
Sorters -- Robert Murciak ("Murciak") and John Doherty ("Doherty")
-- would be retiring soon.3 It filed two Requests for Help -- Nos.
11983A and 11984A -- on January 28, 2008, and officially posted the
positions on February 12, 2008.
On approximately February 11, 2008, Balser received a
"lack of work" notice informing her that she was going to be laid
off because there was not sufficient work to be divided amongst the
Zyglo Inspectors.4 On February 13, 2008, Balser met with GE's
3
Why GE believed these individuals would be retiring soon is not
clear from the record. The record shows that neither individual
retired in February 2008, nor had either submitted requests to
retire as of January or February 2008.
According to Doherty's deposition, he had been thinking of
retiring in 2008, but had not informed anyone of that fact.
Murciak contacted Local 201 in mid-February to complain about the
posting of Zyglo Sorter positions, believing there would not be
sufficient work to share amongst himself and the other sorters --
hardly the actions of someone about to retire. Both individuals
did, in fact, retire in 2008, with Doherty notifying GE of his
intention on May 1 and retiring on June 30. Murciak retired on
July 31.
4
During her deposition, Balser testified that GE Manager for
Union Relations, Richard Sampson ("Sampson"), informed her that she
had been laid off, first, because there was not enough work to
share amongst those in her position, and second, because the lowest
seniority person -- in this instance, Balser -- is laid off when
there is a lack of work. Balser conceded that there did not seem
to be sufficient work to share amongst those in her position, and
does not contest her layoff from the Zyglo Inspector position on
appeal.
-5-
Manager for Union Relations, Richard Sampson, to discuss other jobs
for which she might be qualified and which might be available to
her on account of her layoff, pursuant to the CBA's Layoff and
Transfer Supplement, see supra Part I.A. Sampson informed Balser
of three jobs for which she might be eligible due to her layoff.
One of the offered employments was the recently posted Zyglo Sorter
position.5 Sampson explained that the Zyglo Sorter position was an
option for Balser, not only because of her recent layoff, but also
because of her prior Zyglo certification. Sampson, understanding
the job to be permanent at that time, informed Balser as such.
Balser expressed an interest in the Zyglo Sorter position
and an interview was arranged with Zyglo Sorter Manager, Thomas
Towey ("Towey"). Before her interview, Sampson prepared an
Interview Referral Form stating that Balser was applying for
Request for Help No. 11983A and that she would be replacing "Skip
Doherty" in the Zyglo Sorter position. Sampson informed Balser
that Doherty's name on the interview form had no actual
significance, i.e., it did not affirmatively mean that she would be
Doherty's replacement if she were hired.
On February 14, 2008, Balser interviewed for and was
offered the Zyglo Sorter position. Balser accepted the position
that same day. She was scheduled to start work on February 19,
5
The other two positions were a parts handler position and a
production follower position.
-6-
2008.6 Balser in fact did not start work until February 20, 2008,
a pivotal fact that will be addressed subsequently.
C. The Ides of February
The following events transpired between Sampson's
February 13 "job opening" meeting with Balser and her February 20
"punch in" or start date.
1. Union Member to Casilli: Balser is a Sorter?
On or around February 13, 2008, Union Business Agent Rick
Casilli ("Casilli") received a phone call from a union member
expressing frustration that Balser either had been offered and/or
accepted the recently posted Zyglo Sorter position. The union
member, speaking on behalf of himself and other members, was upset
that Balser, who at the time only had approximately seven months of
service with GE, had been offered a position typically reserved for
only the most senior employees. Because it is Local 201's duty to
investigate how GE fills its positions -- particularly if a hiring
might contradict the CBA or GE past practice -- and to process
grievances if it determines that a position was not filled
according to CBA procedures or GE custom, the Union decided to
investigate GE's possible hiring of Balser, a lack of work
employee, for the Zyglo Sorter position.7
6
Balser was not scheduled to start work on Monday, February 18,
2008, because it was a holiday.
7
For purposes of this opinion, the following terminology will be
relevant. A "lack of work" employee is a GE employee who has been
-7-
2. Casilli to Sampson: Lack of Work Gets Priority Over
Upgrade?
According to Casilli's deposition testimony, on receiving
the February 13 call from the union member, he "[i]mmediately"
contacted Sampson to investigate the possible hiring of Balser.
Casilli informed Sampson as to the disgruntled rumblings from union
members. Casilli asked Sampson how Balser, having only worked at
the company for less than a year, could have been offered or hired
for a position typically reserved for more senior-level employees.
Casilli stated that Sampson told him he did not believe Balser's
hire was due to upgrade -- as was generally the practice for such
a seniority-preferred position -- but rather, lack of work.
Casilli said he told Sampson during that conversation that "[t]his
could be a big problem" because the Zyglo Sorter positions only had
been posted as of February 12. Further, GE generally only posted
laid off from his or her employment. Casilli testified that a lack
of work employee generally filled a vacant position after GE had
reviewed openings in the facility and assessed whether that
employee met the position's qualifications. If he or she did, "the
company's obligation would be to offer . . . [the position] or give
. . . [the employee a] bump in rates."
In contrast, an "upgrade" employee is an employee who has
obtained a level of seniority in GE, which is calculated based on
the day that an individual was hired at GE, and not according to
seniority on the job. To fill a position by upgrade, Casilli
testified, GE generally examined the upgrade files and reviewed
"the high senior people . . . . Then they would look at the top two
or three candidates. They would usually pick the top senior
candidate. If they are going to skip the top senior, they have to
have pretty good reason. They would call usually the top two
senior people and offer them the job."
-8-
jobs it intended to fill by upgrade, and it went against company
practice to post an opening for a position only to fill it on a
lack of work basis.
Casilli testified that he informed Sampson he would need
additional information concerning Balser's potential hiring as a
Zyglo Sorter, including details about the postings, Balser's
layoff, and the positions themselves, to assess whether Balser or
another union member had a right to the position. Casilli stated
he conferred with Sampson on Wednesday (February 13), Thursday
(February 14), the following Tuesday (February 19), and the
following Wednesday (February 20) regarding the matter.8
According to the record, Casilli met with Sampson in
person on February 14, 2008 and engaged in subsequent email
correspondence with him that day. During these interactions,
Casilli informed Sampson that Local 201 would not support the
placement of a recently-hired employee in the Zyglo Sorter
position. Casilli told Sampson that he intended to file a
grievance on two accounts: (1) GE had not placed lack of work
employees into high paid jobs, like the Zyglo Sorter position, in
over ten years; and (2) it was accepted GE practice for posted
piecework positions, like the Zyglo Sorter job, to be filled by
8
Although Sampson did not recall the specific date(s) of any
communications with Casilli, he acknowledged having spoken with
Casilli on at least one occasion concerning Balser's qualifications
and entitlement to the position.
-9-
upgrades, and not lack of work employees. Casilli additionally
advised Sampson to fill the Zyglo Sorter positions "by seniority
among upgrades" and to place Balser "on a temporary IR 169 for
[Herbert] Sutherland's position."10
Sampson, in turn, noted that he had advised Balser during
their initial meeting of union members' discontent concerning GE's
potential filling of a typically seniority-based position with a
non-senior employee; that if she were hired for the Zyglo Sorter
position, it might be "grieved and she might not stay;" and that
despite this, Balser expressed an interest in continuing to work
until informed otherwise. Casilli informed Sampson, also on
February 14, that he would be "writing the Grievance tomorrow if
you placed her on a 'permanent' position. If you placed her on a
'temporary position' for Sutherland and are placing [other
9
"IR" is a type of employee classification under the CBA. If a
position is classified with the designation "IR" or "R," it
constitutes an "equally rated classification" under the CBA, to be
discussed infra.
10
Herbert Sutherland ("Sutherland") was another GE employee and
Local 201 member. On or around February 7 or 8, 2008, Sutherland
had been offered and accepted a Zyglo Sorter position on an upgrade
basis, approximately one week before Balser's acceptance of the
position. Because there was still a demand for someone in
Sutherland's former position, however, he was not released from his
prior position or able to immediately assume his Zyglo Sorter
duties. This was in accordance with GE policy, which allows up to
four weeks for an employee's release from a current job after
receiving an upgrade. Sutherland did not first punch in for work
as a Zyglo Sorter until March 17, 2008.
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recommended senior-level employees] on [sic] other two jobs -- then
you do not get the Grievance."
3. Murciak to Merchant: Not Retiring and Too Many Zyglo
Sorters
On February 13, 2008, Murciak -- one of the Zyglo Sorters
whom GE initially believed was on the verge of retiring and for
whom it generated the Requests for Help at issue -- contacted Local
201 Executive Board Member Fred Merchant ("Merchant"). During this
phone conversation, Murciak complained about GE's February 12
posting of the Zyglo Sorter positions because he feared it would
interfere with the distribution of work among himself and the other
Zyglo Sorters. Murciak's conversation with Merchant confirmed that
he was not planning on retiring soon, contrary to GE's initial
belief. Merchant promptly informed GE's Human Resources Manager,
Matthew Scagnelli ("Scagnelli") of this information. Based on this
information, GE cancelled its Request for Help No. 11984A.
4. Doherty to GE: Not Retiring and Ready to Be Back in
the Zyglo-Sorting Game
Doherty, who had been out on sick leave since the end of
January due to heart problems, provided GE with a letter from his
doctor, dated February 13, 2008, stating that he would be able to
return to work with no restrictions as of March 1, 2008.11 The
11
On January 31, 2008, Doherty fainted and was taken to a
hospital. Doherty received a pacemaker and testified that although
he felt fit to return to work by February 2, 2008, doctors required
him to wait so that the "wound" or "scar" from the surgery could
"heal."
-11-
specific date when Doherty informed GE of his anticipated March 1,
2008 return is not clear from the record, although Doherty
testified at deposition that he believed it was likely around mid-
February. Sampson subsequently informed Scagnelli that Merchant
had said Doherty would be returning to work following his medical
leave.
5. Scagnelli to Sampson: 11983A Reclassified
Sampson testified that "two or three days after" his
February 13, 2008 meeting with Balser, Sampson received
notification from Human Resource Manager Scagnelli that the Zyglo
Sorter position 11983A had been changed from a permanent to a
temporary position because the person Balser was intended to
replace, Doherty, was now scheduled to return from sick leave.
Sampson additionally testified that Scagnelli informed him that he
had to tell Balser that, on account of 11983A's reclassification,
"she could go to a different R16 position versus going to a
temporary job."
6. Sampson to Balser: The Times They Are A-Changin'
Approximately two or three days following his February 13
meeting with Balser, Sampson stated he met with Balser to inform
her that the Zyglo Sorter position, initially believed to be
permanent, had been reclassified as temporary because the person
she was intended to replace now was returning from sick leave; a
different position (that was permanent) was available to her; she
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still could accept the Zyglo Sorter position, provided that she
understood it was temporary; and she also had the right to refuse
that job without any penalty, given that it was a temporary
position. According to Sampson, Balser stated that she wished to
remain in the temporary Zyglo Sorter position. Although Balser
acknowledges that she spoke with Sampson at least twice prior to
her February 20 start date concerning the position, she denies that
she was told of the position's reclassification before February 20.
Balser was scheduled to start work on February 19, 2008.
However, she called in sick that day, fearing other employees' and
union members' reactions, and did not punch in to the Zyglo Sorter
position until February 20, 2008. On February 19, Balser expressed
her concerns to Sampson. The parties dispute the content of that
conversation.
Specifically, Sampson testified that during that
conversation, he again informed Balser that GE had reclassified the
Zyglo Sorter position from permanent to temporary. Although Balser
asserts Sampson never informed her she was filling a temporary
position and that she "always" believed it was permanent before
starting work on February 20, Balser also (confusingly) testified
that on February 19 she spoke with Sampson who recommended that she
accept the Zyglo Sorter position as temporary. Balser also
subsequently submitted a grievance form on April 2, 2008, prepared
by a Union official, Gary Poland ("Poland"), in which she stated
-13-
that Sampson notified her on February 19, 2008 "that the job was no
longer permanent and that it was temporary." At deposition, Balser
"didn't know" why she had submitted a grievance with information
that she now alleges was incorrect.
Construing the facts in Balser's favor, as we must, we
accept that when she started work on February 20, 2008, Balser did
not have actual knowledge as to GE's reclassification of the Zyglo
Sorter position, and that, at the very least, Balser and Sampson
had some form of communication concerning the position on
February 19, 2008.
7. February 19 Email: "Illness Temporary"
On February 19, 2008, Casilli sent an email to a member
of the Union's Executive Board stating that GE had informed Casilli
that same day that "Balsar [sic] was an 'illness temporary' for
Doherty being out on disability," but that Sutherland and another
senior employee would be "permanent addition[s]." Thus, as of
February 19 at the latest -- one day prior to Balser's actual
punching in at work as a Zyglo Sorter -- GE officially had taken
the position that Balser's position was temporary.
8. February 20: GE Cancels the Zyglo Sorter Positions
On February 20, 2008, Scagnelli sent an email to Sampson
regarding the "Zyglo jobs." In the email, Scagnelli advised
Sampson to "cancel the two zyglo jobs (they were backfills for
Doherty & Murciak)," the individuals whom GE initially believed
-14-
were retiring when it posted the positions. Scagnelli additionally
provided that GE would "keep Sutherland . . . once he is released
[from his former position] & trained," and that GE "can let the
temp zyglo woman go." The February 20 email reaffirmed GE's
position that Balser's position was not viewed as a permanent one
by GE.
D. Reporting for Duty and Aftermath
Balser first reported for work as a Zyglo Sorter on
February 20, 2008. On or about March 3, 2008,12 Doherty returned
from medical leave and resumed his Zyglo Sorter position. Because
GE had not yet released Sutherland from his prior position, Balser
was able to remain in her position after Doherty's return.
Sutherland first reported for his Zyglo Sorter position
on March 17, 2008. Once Sutherland punched in for work, there were
nine Zyglo Sorters, including Balser, doing the work generally done
by seven or eight employees. Of the nine Zyglo Sorters, Balser --
as she herself concedes -- was the least senior.13 Factoring in the
time required for Sutherland to undergo Zyglo training, and
considering that Balser was the least senior of all the Zyglo
12
Doherty testified that he returned to work on March 1, 2008.
Because this date was a Saturday, GE asserts that Doherty's correct
start date was in fact March 3, 2008.
13
The seniority dates of the nine Zyglo Sorters were: George Peach
(January 20, 1965); Doherty (December 21, 1966); Murciak (March 20,
1967); Keith Bamford (March 18, 1968); Sutherland (September 5,
1968); Charles Gamble (May 27, 1969); William Pilote (September 2,
1969); Robert Hasan (October 28, 1971); and Balser (July 16, 2007).
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Sorters, GE informed Balser that her position as a Zyglo Sorter
would end on or about March 28, 2008. It is undisputed that it was
company policy to lay off employees according to their seniority
levels.
GE offered Balser a position as a Stock Keeper on or
about April 1, 2008. Balser first reported to work as a Stock
Keeper on April 7, 2008. GE rates a Stock Keeper position, R-16,
and a Zyglo Sorter position, IR-16. Pursuant to the CBA's Layoff
and Transfer Supplement, if an employee transfers as a day worker
"to an open job with the specific intent of remaining in [her]
department, [the employee] will be recalled only to previously held
high rated classifications in [her] department." Further, under
the CBA, "[a]ny classification with the name numerical 'IR' or 'R'
designation" constitutes an "equally rated classification." Thus,
if an employee moves between two equally rated classifications, she
will have no recall rights to the previous position. Applying
these provisions to Balser, because both the Zyglo Sorter position
and Stock Keeper position were equally rated classifications under
the CBA, she did not have any recall rights to the Zyglo Sorter
position.
E. The Grievance
Following her layoff from the Zyglo Sorter position,
Balser decided to file a grievance. She turned to Union official
Poland for assistance. Poland requested that Balser provide him
-16-
with information confirming that the position from which she had
been laid off had been an open, permanent position. Balser was
unable to provide any hard copy evidence confirming that her
position had been permanent. Instead, Balser discussed her initial
meeting with Sampson, in which he had stated he believed the
position would be permanent; provided a copy of the documents she
brought to her interview with Towey, which had Doherty's name on
them as the individual she was scheduled to replace; asked Poland
to look into a paper that she had misplaced and "to look up the job
code and match it against the paperwork that [Sampson] gave
[Balser] to bring to [Towey] to see that the coding was the same to
show it was an open job;" and asserted that Sutherland had been
hired for the Zyglo Sorter position after her, confirming she was
entitled to the position.
On April 21, 2008, Poland submitted a grievance on behalf
of Balser. The grievance stated that GE "had no right to change
[Balser's Zyglo Sorter position] to temporary status for their
[sic] convenience." Balser reviewed and approved the grievance
before its submission to Local 201, even though Balser presently
disputes some of the information contained in the grievance --
specifically, that Sampson informed her the Zyglo Sorter position
would no longer be permanent.
The Union reviewed Balser's grievance and investigated
her claim. It determined, first, that Sutherland was the
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successful bidder on an upgrade for a Zyglo piecework position that
was awarded to him in January 2008, before Balser was laid off from
her prior position; second, Sutherland was not released earlier to
the Zyglo piecework position because of departmental needs
associated with his prior position; and third, the CBA permits GE
to hold an employee in a previous position up to thirty days. The
Union informed Balser of its findings and requested additional
evidence supporting her claim. On receiving no additional
evidence, Local 201 decided not to proceed to arbitration because
it did not have sufficient evidence to support Balser's claim that
the contested position was permanent. The Union made this
determination on or about May 28, 2008.
F. Seeking Zyglo Sorter Justice
On August 12, 2008, Balser filed a Complaint in the
District Court for the District of Massachusetts against GE and
Local 201. Balser asserted two counts in her Complaint. First,
she argued that Local 201, her collective bargaining
representative, had breached its duty of fair representation owed
to her as a union member. Second, she contended that GE breached
the terms of the CBA between GE and Local 201. GE and Local 201
filed Motions for Summary Judgment on May 17, 2010. The district
court heard arguments on the motions on October 1, 2010.14 On
14
On May 15, 2009, with the parties' consent, the case was
assigned to a magistrate judge for final disposition.
-18-
October 4, 2010, the district court entered an order granting GE
and Local 201's Motions for Summary Judgment in their entirety
because Balser could not show that GE's reclassification of the
Zyglo Sorter position constituted a violation of the CBA by GE.
Balser, 2010 WL 3927719, at *3-6.
II. Discussion
A. Standard of Review
Summary judgment is properly granted where "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). We review the district court's grant of summary
judgment de novo, "drawing all reasonable inferences in favor of
the non-moving party while ignoring 'conclusory allegations,
improbable inferences, and unsupported speculation.'" Sutliffe v.
Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir. 2009) (quoting
Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st Cir. 2009)).
To defeat a motion for summary judgment, the non-movant "must
tender 'significant probative evidence' . . . . Brash conjecture,
coupled with earnest hope that something concrete will eventually
materialize, is insufficient to block summary judgment." Dow v.
United Bhd. of Carpenters & Joiners of Am., 1 F.3d 56, 58 (1st Cir.
1993) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253,
290 (1968)).
-19-
Here, we are confronted with a hybrid claim pursuant to
Section 301 of the LMRA, 29 U.S.C. § 185, that consists of two
"inextricably interdependent" causes of action, i.e., Balser
alleges violations of her rights by both her employer, GE, and her
union, Local 201. DelCostello v. Int'l Bhd. of Teamsters, 462 U.S.
151, 164 (1983) (quoting United Parcel Serv., Inc. v. Mitchell, 451
U.S. 56, 66 (1981)); see also Fant v. New Eng. Power Serv., 239
F.3d 8, 14 (1st Cir. 2001) ("Hybrid claims involve alleged
wrongdoing on the part of both the employer and the union with
respect to the rights of employees."). To prevail, the plaintiff
"must prove both that the employer broke the [CBA] and that the
union breached its duty of fair representation, in order to recover
against either [entity]." Chaparro-Febus v. Int'l Longshoremen
Ass'n, Local 1575, 983 F.2d 325, 330 (1st Cir. 1992); Fant, 239
F.3d at 14 (noting that "the court must resolve whether the union
failed in fairly representing the employee and whether the employer
acted in violation of the CBA terms") (emphasis added).
Thus, in this case, Balser bears the burden of showing
that (1) GE's reclassification of the Zyglo Sorter position from
permanent to temporary, prior to Balser's assumption of the
position's duties, violated the CBA; and (2) the Union's actions
constituted a breach of its duty of fair representation.
DelCostello, 462 U.S. at 165 ("The employee may, if he chooses, sue
one defendant and not the other; but the case he must prove is the
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same whether he sues one, the other, or both."). If Balser cannot
firmly plant each cause of action's foot on legally and factually-
supported ground, her hybrid claim will topple. See Goulet v. New
Penn Motor Exp., Inc., 512 F.3d 34, 43 (1st Cir. 2008); Laurin v.
The Providence Hosp., 150 F.3d 52, 61 (1st Cir. 1998) (stating that
"[f]ailure to establish either prong is fatal to [a plaintiff's]
'hybrid' claim").
B. From Permanent to Temporary: Did GE's Reclassification Violate
the CBA?
Balser's essential argument is that her employer's
exercise of discretion in reclassifying her position at the
allegedly improper and bad faith request of Local 201 constituted
a violation of her rights under the CBA. Balser's first step is to
show that GE's reclassification of the Zyglo Sorter position
contravened the CBA. See Mulvihill v. Top-Flite Golf Co., 335 F.3d
15, 20 (1st Cir. 2003). For the following reasons, Balser's claim
fails.
It is undisputed that the CBA between Local 201 and GE
governs Balser's employment at River Works. The CBA specifically
provides in Paragraph (b) of Article XXIX of the National
Agreement:
Subject only to any limitations stated in this
Agreement, or any other agreement between the
Company and the Union or a Local, the Union
and the Locals recognize that the Company
retains the exclusive right to manage its
business, including (but not limited to) the
right to determine the methods and means by
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which its operations are to be carried on, to
direct the work force, and to conduct its
operations in a safe and effective manner.
(Emphasis added).
Thus, under the express terms of the CBA, GE has the
"exclusive right" to determine how it will manage all operations of
the company, including its "direct[ion of] the work force." Stated
differently, the CBA imposes no restrictions on GE's right to
assess staffing needs for positions at the River Works facility at
any time, either before or after an employee has punched in to his
or her position. Sworn statements of several GE management
officials and Local 201 officials further affirm the significance
and mutual company understanding of this provision of the CBA.
Specifically, both GE Human Resources Manager Scagnelli
and GE Union Relations Manager Justin Warskinskey ("Warskinskey")
stated that if GE learns before an employee punches in that a
position originally posted as permanent might result in "increased
headcount unsupported by the available work," GE may "cancel the
position altogether or change the position from permanent to
temporary, provided that it does so before an employee selected for
the opening punches in." Similarly, if GE determines that there is
not sufficient work to distribute amongst the staffed employees
after an employee punches in, GE has the right to conduct layoffs
-22-
pursuant to the Layoff and Transfer Supplement of the CBA.15 GE
Manager of Union Relations Sampson testified that, pursuant to the
CBA, GE has the "exclusive right" to determine the number of
employees in a given position; to fill a position after an
employee's retirement; and to change a position from permanent to
temporary, even after a position has been posted.
Local 201 further affirms GE's interpretation of the
governing agreement between itself and the Union. Local 201
Business Agent Casilli stated that "GE has the right to determine
the number of employees in a position," and that GE does "not
violate the CBA by cancelling positions," whether before (by
reclassifying or cancelling the position) or after (by conducting
a layoff) an employee has punched into the position.
GE and the Union, on showing "an absence of evidence to
support the nonmoving party's case," Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986), have swung the evidentiary pendulum back
towards Balser for her to show a genuine issue of material fact
pursuant to Fed. R. Civ. P. 56. Balser falters in her burden.
Balser does not "point to 'competent evidence'" or
"specific facts" to counter GE or the Union's interpretation of the
CBA. Wilson v. Moulison No. Corp., 639 F.3d 1, 6 (1st Cir. 2011)
15
This is, in fact, what GE did as to Balser. On determining that
there were too many Zyglo Sorters (nine) to do the work typically
done by only seven or eight employees, GE decided to end Balser's
temporary position, as she was the least senior Zyglo Sorter
amongst those employees. Balser does not contest this point.
-23-
(quoting Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd's
of London, 637 F.3d 53, 56 (1st Cir. 2011)) (internal quotation
marks omitted). Instead, Balser invites the Court to engage in the
dangerous game of considering "conclusory allegations, improbable
inferences, . . . or rank speculation," a game from which we always
abstain. Id. Specifically, Balser asserts the following arguments
to "deflect the swing of the summary judgment scythe." Ahern v.
Shinseki, 629 F.3d 49, 54 (1st Cir. 2010) (quoting Mulvihill, 335
F.3d at 19) (internal quotation mark omitted).
1. Creation of Doherty "Fiction" Violated CBA
Balser asserts GE and Local 201 colluded to create the
"pure fiction" that she had been hired as a temporary injury
replacement for Doherty, and such collusion was in violation of the
CBA. Balser points to no evidence in the record, however,
undermining GE's assertion that when the company initially posted
for the Zyglo Sorter positions, it did so in the belief that
Doherty and Murciak would be retiring soon.
GE first sent out its Requests for Help to fill the Zyglo
Sorter positions on January 28, 2008; Doherty was not out on sick
leave until January 31, 2008. The fact that Doherty subsequently
was absent due to sickness -- creating an immediate and actual
Zyglo Sorter vacancy that quickly needed to be filled -- does not
change the evidence (unrebutted by Balser) showing that when GE
first recorded the anticipated vacancies, it did so in the
-24-
understanding that these respective individuals would be retiring
soon. In fact, the record reflects that it was accepted practice
for GE to file Requests for Help in advance of an anticipated
vacancy to ensure the filling of a position before an employee's
absence. While the record does not clearly show why GE at first
anticipated such individuals' retirement, "[o]ur role is not to
second-guess the business decisions of an employer." Rossy v.
Roche Prods., Inc., 880 F.2d 621, 625 (1st Cir. 1989). The
evidence shows that on receiving information from both Murciak and
Doherty that neither had immediate plans to retire, GE promptly
reevaluated its needs for Zyglo Sorters and acted accordingly.
Specifically, Murciak informed Merchant on February 13,
2008, of his intention to remain in the Zyglo Sorter position.
Doherty received a doctor's note on February 13, 2008 and informed
GE "by mid-February" of his intent to return to work as of early
March. Both of these communications occurred mere days after GE
had officially posted the Zyglo Sorter openings (February 12,
2008). Sampson testified that "two or three days" after his
February 13 meeting with Balser -- during which he first offered
the Zyglo Sorter position -- he received notification from Human
Resource Manager Scagnelli that the 11983A Zyglo Sorter position
which had been offered to Balser needed to be reclassified from
permanent to temporary as the individual for whom she was to serve
as a replacement now would be returning to work.
-25-
Balser's unsupported allegations that GE and Local 201
conspired to reclassify her position by subsequently creating the
fiction of her serving as a temporary illness replacement for
Doherty are insufficient to counter the record's showing of GE's
objective reassessment of company staffing needs following a change
in employee information. Indeed, Balser points to no testimony,
email or letter correspondence, internal memoranda, or other
documentation or communication supporting her contention that the
Union and GE improperly schemed to reclassify; rather, the evidence
shows that on learning of Doherty's subsequent and unpredicted
absence -- despite learning of his non-retirement plans -- GE
reevaluated its staffing needs in the Zyglo Sorter field.
At most, Balser points to the fact that the initial
documentation she received on or around February 13 when applying
for the position provided that she would be replacing Doherty.
However, the evidence shows that Balser herself conceded -- at both
deposition and in her Statement of Undisputed Facts -- that Sampson
expressly informed her that Doherty's name on her employment
documents "[did] not mean that [was] the person [she ultimately
would be] replacing," and that Sampson had "given upgrades with
other people's names on the paperwork [before], but that doesn't
mean that [was] who [she would be] replacing on the job."
Additionally, Balser stated that at the time of her Zyglo Sorter
interview, she was not under the impression that she was replacing
-26-
anyone specifically.16 Thus, given that Balser knew before her
formal offer and acceptance of the Zyglo Sorter position that
Doherty's name on the form did not affirmatively establish that he
was the individual whom GE explicitly intended for her to replace
cuts in favor of GE's practice of continually monitoring staffing
needs -- even after job postings -- and not towards a GE-Union
conspiracy to justify reclassification.
2. GE Exercised Discretion to Enable the Union to
Deprive Balser of the Zyglo Sorter Position
Balser argues that GE's exercise of discretion, which she
asserts was for the sole and improper purpose of allowing the Union
to deprive her of the Zyglo Sorter position, violated her rights
under the CBA. Balser points to no provision in the CBA that
supports her assertion that GE's exercise of discretion in (1)
reclassifying the Zyglo Sorter position on acquiring updated
information concerning staffing needs in that department; (2)
weighing the Union's view that hiring Balser for that position
would contradict GE practice and/or CBA procedures; and (3)
16
At deposition, Balser responded as follows:
Q: What did Mr. Sampson say about other people being
out?
A: He has given upgrades with other people's names on
the paperwork, but that doesn't mean that is who you are
replacing on the job.
Q: You understood that [the paperwork for the Zyglo
Sorter position] was supposedly to replace someone?
A: No.
App. at 377 (emphasis added).
-27-
considering the Union's advisement that hiring a lack of work
employee for a typically upgrade-based position would create
conflict among more senior-level employees, constituted a violation
of the CBA.
Balser references the following provisions to support her
contention that GE's reclassification violated the CBA: (1) Art.
IV, section 2, providing that the Union shall not intimidate or
coerce an employee; (2) Art. XXIX, section (a), providing that GE
acknowledges the Union's obligation to fairly and effectively
represent its employees; (3) Art. XXVIII, section 1, providing that
GE will, "to the extent practical, give first consideration for job
openings and upgrading to present employees" with the necessary
qualifications; and (4) Art. 1(C) of the Layoff and Transfer
Supplement, providing that "[a]ffected daywork employees will be
transferred to any equally rated or higher rated open
classification . . ., exclusive of upgrading, for which they are
qualified" considering their employment record.
None of these provisions expressly or implicitly
restricts GE's "exclusive right" to consider workforce requirements
and, if necessary, to reclassify a position from temporary to
permanent, or vice versa, when information concerning staffing
needs has changed. Articles IV and XXIX specifically address the
Union's obligations to GE employees, and are more applicable to
Balser's second argument concerning the Union's duty of fair
-28-
representation; the latter Articles acknowledge GE's right to
consider an employee's qualifications and overall employment record
when transferring or filling a position. Although Balser tries to
bolster her argument that she was eligible for and thus entitled to
the Zyglo Sorter position -- effectively preventing, as she
asserts, GE's reclassification of the position -- by citing to
Article 1(C) of the Layoff and Transfer Supplement, the issue is
not whether Balser met the position's requirements (on which we
pass no judgment), but simply, whether GE had the right to reassess
its staffing needs for the position and subsequently reclassify it
before Balser first punched in. The CBA's granting of the
"exclusive" right to manage the work force to GE affirms that it
did.
Given that Balser carries the compass to direct us
towards material in the record showing that GE's discretionary acts
-- conducted pursuant to GE's "exclusive right" to manage the work
force under the CBA -- in fact violated the CBA, her inability to
point us to any supporting evidence effectively leaves us on a ship
without its captain steering towards summary judgment shores.
3. GE's Underlying Reasons for Reclassification Were
Pretextual
Balser contends that GE's reasons for reclassifying, and
thereby effectively removing her from,17 the Zyglo Sorter position
17
When the permanent Zyglo Sorters assumed their positions
(including Sutherland and Doherty), Balser was a temporary
-29-
are nothing more than a specious excuse to favor more senior
employees for a position to which she alleges she was entitled.
Specifically, Balser asserts that GE's consideration of the Union's
ardent objections to Balser's being hired on a permanent basis was
both pretextual and a violation of the CBA.18 Balser points to
nothing in the record -- nor any legal authority -- establishing
that GE's consideration of the Union's investigation of GE's hiring
practices and its views on how GE filled the Zyglo Sorter position
constitute a violation of the CBA. Indeed, the record reflects the
contrary.
The evidence of record demonstrates that the Union had
both the right and obligation to assess whether positions were
filled in accordance with GE practice or CBA provisions, and
notably, Balser has adduced no evidence indicating that Local 201
lacked authority to review how GE filled a position. Here, on
receiving updated information concerning the Zyglo Sorter vacancies
and complaints from union members as to how GE was filling those
openings, the Union took immediate action.
employee, and also the least senior of the Zyglo Sorters, thus
making her subject to layoff. She additionally had no recall
rights to the Zyglo Sorter position because she had moved to a
position with an equally rated classification.
18
The only pretext that Balser asserts is GE's alleged motive to
pacify the Union's objections to Balser's being hired for a
lucrative piecework position typically reserved for more senior
employees.
-30-
Union Business Agent Casilli and Executive/Grievance
Board member Merchant looked into the Zyglo Sorter postings, with
Casilli directly contacting GE's Manager of Union Relations Sampson
to obtain all available information and details concerning the
postings, Balser's layoff, and the vacancies themselves. On
reviewing the acquired information -- including that Balser only
had been employed at GE for seven months; that it was general
company practice to hire more senior-level employees on an upgrade
basis for the lucrative piecework positions; that GE had not filled
a higher paying job, like the Zyglo Sorter position, with lack of
work employees in over a decade; that Balser obtained the position
due to her lack of work (and not upgrade) status; and that the
postings were due to anticipated retirement vacancies that in fact
were inaccurate -- Local 201 strongly urged GE to reclassify the
Zyglo Sorter position from permanent to temporary. GE, taking all
of these relevant factors into consideration, elected to reclassify
the position, as it was entitled to do pursuant to its exclusive,
discretionary rights under the CBA.
Viewing the facts in the light most favorable to Balser,
as we must, even if we were to agree that GE's reasons for
reclassifying the position likely were motivated by favoritism
towards more senior employees and Union pressure, such motivations
do not show a violation of the CBA. At most, they show the
backstage politicking that likely occurs in many bureaucratically
-31-
governed relations between a company and its union, which is not
prohibited by case law nor the underlying CBA at issue.
Indeed, our labyrinthian review of the record returns us
to the same central point as the district court: because GE
unquestionably had the right under the CBA to reassess staffing
needs (either before or after a position had been filled), and
either to reclassify a position before an employee punched in, or
to conduct layoffs after an employee had started her position, the
true issue is one of timing. The record clearly shows that GE
reclassified Balser's position from permanent to temporary; thus,
the determinative question is whether GE reclassified the Zyglo
Sorter position before Balser officially had started as a Zyglo
Sorter, or whether it reclassified her position after her rights in
the position had vested.19
The evidence shows that although Balser was scheduled to
start work as a Zyglo Sorter on February 19, she did not first
punch into work until February 20. Both GE and Local 201 members'
testimony and internal correspondence confirm that as of
February 19, at the latest, GE had reclassified Balser's 11983A
Zyglo Sorter position from permanent to temporary. Although Balser
argues that her rights in the Zyglo Sorter position vested before
19
Significantly, Balser conceded at her deposition that she was
aware of no provision in the CBA that prevented GE from
reclassifying her position before she first punched in as a Zyglo
Sorter. Balser does not argue differently on appeal.
-32-
her February 20 start date -- specifically, when she first orally
accepted the position on February 14 -- her contention cannot drown
out the sirenic call of the evidentiary record, which confirms that
(1) an employee's rights in a GE position do not vest until he or
she has officially punched in to the position, and (2) GE may
change a position from permanent to temporary, provided that it
does so before an employee has punched in.
Because Balser does not contest her February 20 "punch
in" date, nor offer evidence contradicting GE and Local 201
testimony and internal correspondence showing that her Zyglo Sorter
position was reclassified as of, at the latest, February 19, we
find no genuine issue of material fact as to whether GE's pre-start
date reclassification violated the CBA.
C. Union's Duty of Fair Representation
Balser cannot firmly plant one foot of her hybrid claim
in legally and factually-supported ground, and under the law, her
remaining arguments cannot stand on the remaining foot of her
amputated hybrid action. Because Balser has failed to offer
evidence showing that GE breached the CBA when it reclassified
Balser's Zyglo Sorter position from permanent to temporary before
her actual start date, Balser's now monopod claim against the Union
likewise fails. See Mulvihill, 335 F.3d at 27 ("Our conclusion
that [defendant] did not breach the CBA when it terminated
[plaintiff's] employment serves to dispose of [plaintiff's] case
-33-
against the Union as well."); Laurin, 150 F.3d at 62 (holding that
because plaintiff did not show defendant's violation of the CBA,
her "hybrid" claim accordingly failed); see also DelCostello, 462
U.S. at 165 (stating that a plaintiff must show an employer's
violation of the CBA to prevail against either defendant in a
hybrid section 301 action). Balser having no argumentative leg
left on which to stand, we hold that the district court properly
granted summary judgment as to her hybrid claim.
III. Conclusion
For these reasons, we affirm the district court's grant
of summary judgment.
Affirmed.
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