Emmanuel v. International Brotherhood of Teamsters

United States Court of Appeals
For the First Circuit

No. 04-1830

EUGENE EMMANUEL,

Plaintiff, Appellant,

v.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL UNION NO. 25,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Howard, Circuit Judge.

Daniel J. Ciccariello with whom Law Office of Daniel J.
Ciccariello, was on brief, for appellant.
Matthew E. Dwyer with whom Dwyer, Duddy and Facklam Attorneys
at Law, P.C., was on brief, for appellee.

October 14, 2005
 HOWARD, Circuit Judge. After losing his job as a bus

driver for Laidlaw, Inc. ("Laidlaw"), Eugene Emmanuel filed a

grievance with his union, the International Brotherhood of

Teamsters, Local Union No. 25 ("Union"), claiming that his

termination violated the Union's collective bargaining agreement

("CBA"). The Union unsuccessfully pursued Emmanuel's grievance

through arbitration. Dissatisfied with the outcome, Emmanuel sued

the Union, claiming that it had violated its duty of fair

representation during the arbitration. The district court granted

summary judgment for the Union. Emmanuel appeals that ruling and

also challenges the district court's denial of his motion for

reconsideration. We affirm.

I.

In 1999, Emmanuel began work for Laidlaw as a school bus

driver in West Roxbury, Massachusetts. On June 14, 2000, Laidlaw

asked Emmanuel to drive a bus from its West Roxbury facility to a

facility in a neighboring town. Emmanuel claims that, when he

entered the bus, he could not find the pre-trip inspection log but

recorded his safety observations on the back of his time sheet. He

noted that the brake was "set up a little higher than it was

supposed to be" but that he did not consider this a safety problem.

Emmanuel claims that, as he pulled out of the West Roxbury

facility, the bus accelerated out of control and the brakes failed.

He steered the bus off the road and crashed through several bushes

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and a fence before stopping in a ditch.

Emmanuel blamed the accident on defects in the bus's

accelerator and brake systems. Laidlaw's investigation revealed

that the brakes had been recently serviced and were in working

order. After reviewing other relevant materials, including the

police report and Emmanuel's statement, Laidlaw determined that

Emmanuel was at fault and that the accident was "serious in

nature." The CBA permitted Laidlaw to fire an employee without

warning for involvement in a "serious at-fault accident." On

August 23, 2000, Laidlaw discharged Emmanuel.

Emmanuel filed a grievance with the Union, claiming that

the discharge was "unjust" and requesting reinstatement with

backpay. The Union business agent, Ritchie Reardon, represented

Emmanuel in the grievance proceedings. In October 2000, Reardon,

Emmanuel and several Laidlaw officials met to resolve the

grievance. At this meeting, Laidlaw proposed to reinstate Emmanuel

and to convert the post-termination period into an unpaid

suspension. Emmanuel rejected the offer and demanded arbitration.

Prior to arbitration, Emmanuel met with Reardon to

discuss strategy. Emmanuel urged Reardon to argue that the

accident was caused by mechanical defects in the bus. Emmanuel

provided Reardon with a list of employees who he claimed would

support this theory. Reardon told Emmanuel that he should arrange

for these employees to contact him because employees generally

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resist testifying against their employer after being approached by

the Union business agent. None of these employees (only one of

whom saw the accident) ever contacted Reardon.

Reardon investigated Emmanuel's theory by interviewing

several Laidlaw mechanics. These individuals were "hostile" to

Emmanuel's claim because Emmanuel had been in other accidents which

he had blamed on mechanical defects, and because the mechanics had

taken these excuses "personally." The mechanics told Reardon that

the brakes and accelerating system were not defective. Based on

these conversations, Reardon believed that, if he were to call "the

mechanics to the witness stand they would actually say things that

would have harmed Emmanuel's case."

Lacking evidence to corroborate the defect theory,

Reardon focused on an alternative argument before the arbitrator.

The CBA required Laidlaw to impose discipline on an employee within

20 days of the date that the company learned of the accident.1

Because Laidlaw did not inform Emmanuel of his discharge until 70

days after the accident, the Union argued that Emmanuel's discharge

violated the CBA. The arbitrator rejected this argument and

concluded that Emmanuel's discharge was justified under the CBA.

After losing the arbitration, Emmanuel sued the Union for

violating the duty of fair representation. His complaint alleged

1
The CBA provided that "discipline shall be imposed no later
than twenty days from the day of the company's knowledge of the
incident, which gave rise to such discipline."

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that the Union inadequately investigated his mechanical defect

theory and irrationally decided to present the timing issue to the

arbitrator. After discovery, the Union moved for summary judgment.

The district court concluded, as a matter of law, that the Union

had adequately investigated Emmanuel's defect theory and reasonably

represented him at the arbitration. Because there was no evidence

that the Union's conduct was discriminatory, in bad faith, or

arbitrary, the court entered judgment for the Union.

Shortly after this ruling, Emmanuel sought

reconsideration based on his discovery of "new evidence." Through

an internet search, a paralegal working on Emmanuel's case found

that the bus involved in the accident had been recalled by the

manufacturer to check for a defect in the acceleration system.

This recall notice was published and available prior to the

arbitration. Emmanuel argued that this evidence established a

question of fact concerning the sufficiency of the Union's

investigation. The district court denied the motion. Emmanuel

appeals both the summary judgment and motion for reconsideration

rulings.

II.

A. Summary Judgment

We review the grant of summary judgment de novo, taking

all disputed facts in the light most favorable to Emmanuel. See

Houlton Citizens' Coalition v. Town of Houlton, 175 F.3d 178, 184

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(1st Cir. 1999). In so doing, we do not consider "conclusory

allegations, improbable inferences, and unsupported speculation."

Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.

1990). We will affirm the grant of summary judgment so long as the

record reflects that no genuine issue of material fact exists and

that the Union is entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56(c).

As "the exclusive bargaining representative of the

employees, [a] [u]nion [has] a statutory duty fairly to represent

all of those employees both in its collective bargaining . . . and

in its enforcement of the resulting collective bargaining

agreement." United Steelworkers of Am., v. Rawson, 495 U.S. 362,

372 (1990) (quoting Vaca v. Sipes, 386 U.S. 171, 177 (1967)). This

duty is called the "duty of fair representation." BIW Deceived v.

Local S6, Indus. Union of Marine & Shipbuilding Workers of Am., 132

F.3d 824, 830 (1st Cir. 1997). A union breaches this duty by

acting discriminatorily, in bad faith, or arbitrarily toward a

union member. Morales-Vallellanes v. Potter, 339 F.3d 9, 16 (1st

Cir. 2003). Proof of any of these bad acts will suffice to

establish a claim. See id.

Emmanuel argues only that the Union acted arbitrarily in

handling his grievance. A union acts arbitrarily "if, in light of

the factual and legal landscape at the time of the union's actions,

the union's behavior is so far outside a wide range of

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reasonableness as to be irrational." Miller v. United States

Postal Service, 985 F.2d 9, 11-12 (1st Cir. 1993) (citation

omitted). This standard requires the court to examine objectively

the competence of the union's representation. See Neal v.

Newspaper Holdings, Inc., 349 F.3d 363, 369 (7th Cir. 2003). But

in performing this objective evaluation, the reviewing court must

accord the union's conduct substantial deference. See Air Line

Pilots Ass'n Int'l v. O'Neill, 499 U.S. 65, 78 (1991); Morales-

Vallellanes, 339 F.3d at 16. This standard of review recognizes

that unions must have ample latitude to perform their

representative functions. Miller, 985 F.2d at 12.

Emmanuel challenges the Union's investigation of his

theory of the accident. In particular, he faults the Union for not

interviewing the potential witnesses whom he identified for

Reardon.

The duty of fair representation mandates that a union

conduct at least a "minimal investigation" into an employee's

grievance. Garcia v. Zenith Elec. Corp., 58 F.3d 1171, 1176 (7th

Cir. 1995). But under this standard, only an "egregious disregard

for union members' rights constitutes a breach of the union's duty"

to investigate. Castelli v. Douglas Aircraft Co., 752 F.2d 1480,

1483 (9th Cir. 1985).

Reardon was willing to speak with the potential witnesses

that Emmanuel identified. But he told Emmanuel to urge the

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witnesses to contact him because, in his experience, employees were

reluctant to testify against management after being approached by

the Union business agent. As Reardon explained, requiring

potential employee-witnesses to come to him tested their

"willingness to actually testify or provide evidence that is

unfavorable to an employer." Reardon's approach was designed with

an eye toward assuring that the Union only called helpful witnesses

at the arbitration. This strategy does not constitute a wholesale

disregard of the Union's duty to investigate Emmanuel's claim.

Moreover, Emmanuel has not demonstrated, as he must, that

any of these employees would have provided beneficial information.

See Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 585 (6th

Cir. 1994) (stating that the failure to "present favorable evidence

during the grievance process . . . may constitute a breach of . .

. duty . . . only if that evidence probably would have brought

about a different decision"). From our review of the record, none

of the witnesses was on the bus at the time of the accident or

otherwise was able to offer evidence to corroborate Emmanuel's

assertion that the bus was defective. These witnesses would not

have provided competent testimony to support Emmanuel's claim.2

2
Emmanuel suggests that one of the proposed witnesses would
have testified that he was aware of a previous circumstance in
which a bus accelerator stuck. But without testimony that it was
the same bus or bus model that Emmanuel drove on the day of the
accident, this testimony, if admitted into evidence at all, would
not have been particularly helpful to Emmanuel's case.

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 In any event, the Union did actively investigate

Emmanuel's claim. Reardon spoke to several Laidlaw mechanics about

the incident and Emmanuel's theory. These individuals would have

been critical witnesses at the arbitration because they could have

testified about the mechanical condition of the bus. The mechanics

told Reardon that the bus was not defective, and they were openly

resentful of Emmanuel's claim. These interviews understandably

discouraged Reardon from pursuing the defect theory. Reardon's

interviews sufficed to discharge the Union's duty to investigate.

See Garcia, 58 F.3d at 1177-78 (stating that the union discharged

its duty of fair representation by conducting minimally sufficient

investigation, even though the grievant would have preferred that

the union had investigated his claim more thoroughly); Castelli,

752 F.2d at 1483 (holding that the union met its duty of fair

representation where the union business representative spent no

more that one and a half hours in investigating the grievance and

preparing for the arbitration); Findley v. Jones Motor Freight,

639 F.2d 953, 956-61 (3d Cir. 1981) (concluding that the union

satisfied its duty of fair representation by conducting some

investigation of the grievance, even though it could have conducted

a more searching investigation).

In addition to challenging the quality of the Union's

investigation, Emmanuel faults the Union for presenting the

argument that Laidlaw's discharge decision violated the CBA's

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timing provision. He contends that, because the CBA provision

establishing time limits for imposing discipline was untested, it

was irrational for the Union to rely on this argument before the

arbitrator. We disagree.

"It is for the union, not the courts to decide whether

and in what manner a particular grievance should be pursued."

Patterson v. Int'l Bhd. of Teamsters, Local 959, 121 F.3d 1345,

1349-50 (9th Cir. 1997). A union does not act arbitrarily merely

because it errs in interpreting a particular provision of a

collective bargaining agreement. Peterson v. Kennedy, 771 F.2d

1244, 1254 (9th Cir. 1985). The CBA provision at issue arguably

supported the Union's position that Emmanuel's termination was

untimely. As Reardon had not discovered evidence to support the

mechanical defect theory, it was rational for him to focus on this

alternate theory before the arbitrator. See Garcia, 58 F.3d at

1179 (stating that the union satisfied its duty of fair

representation where it pursued a rational arbitration strategy

even though the employee would have preferred a different

strategy).3

In sum, the record demonstrates that the Union

3
Emmanuel also argues that it was irrational for the Union to
fail to present evidence that other drivers often recorded pre-trip
inspection information, not in the safety log book, but rather in
other locations. Such evidence would have made no difference
because the arbitrator assumed that Emmanuel conducted an
appropriate pre-trip inspection. See Black, 15 F.3d at 585.

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investigated the mechanical defect theory and presented a rational

argument to support the grievance. That is all that the duty of

fair representation requires.

B. Motion for Reconsideration

Shortly after the district court granted the Union's

motion for summary judgment, Emmanuel sought reconsideration on the

ground that he had discovered "new evidence." See Fed. R. Civ. P.

59(e). Specifically, through an internet search, he found that the

bus had been recalled in 1995 because of a problem that resulted in

"the accelerator sticking at the full power position." In light of

this discovery, Emmanuel argues that the Union was incompetent in

not doing this basic research and that, if it had done so, it would

have found evidence to support the mechanical defect theory.

Emmanuel posits that this recall notice establishes a triable issue

on the sufficiency of the Union's investigation, and that the

district court abused its discretion in denying his motion for

reconsideration.

We review the denial of a motion for reconsideration for

a manifest abuse of discretion. See Vasapolli v. Rostoff, 39 F.3d

27, 36 (1st Cir. 1994). Rule 59(e) provides litigants with a

vehicle to present the district court with evidence uncovered after

the entry of judgment. Aybar v. Crispin-Reyes, 118 F.3d 10, 16

(1st Cir. 1997). But it "does not provide a vehicle for a party

to undo its own procedural failures and it certainly does not allow

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a party to introduce new evidence or advance arguments that could

and should have been presented to the district court prior to

judgment." Id. (citations omitted). Thus, a district court does

not abuse its discretion by denying a motion for reconsideration

grounded on the discovery of evidence that, in the exercise of due

diligence, could have been presented earlier. See Hayes v. Douglas

Dynamics, Inc., 8 F.3d 88, 91 n.1 (1st Cir. 1993).

The district court did not abuse its discretion because

the recall notice was available to Emmanuel well in advance of the

court's summary judgment ruling. Emmanuel admits as much in his

appellate brief. In arguing that the existence of the recall

notice demonstrated arbitrary conduct by the Union, Emmanuel

stated that the notice was "information that was available to

anyone" as it was posted "on the internet." Emmanuel has offered

no persuasive reason for waiting until after the entry of judgment

to search the internet for publically available documents that

could have supported his claim.4 See Hayden v. Grayson, 134 F.3d

449, 455 n.9 (1st Cir. 1998).

III.

For the reasons stated, the judgment is affirmed.

4
Emmanuel suggests that he could not have found the recall
notice earlier because the discovery order allowed him to take only
certain depositions, which would not have led him to discover the
notice. Putting aside that Emmanuel could have sought to expand
formal discovery, the notice was a public document available on the
internet to "anyone." The limits on formal discovery had nothing
to do with Emmanuel's delay in searching for this evidence.

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