Union Member's Section 301 "Hybrid" Claim Fails When He Cannot Demonstrate That The Employer Breached The Collective Bargaining Agreement
NEMSKY v. CONOCOPHILLIPS COMPANY (August 3, 2009)
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George Nemsky had been an engineer at ConocoPhillips’ Wood River Refinery for over twenty years and had a solid reputation. He was represented by Local 399 of the International Union of Operating Engineers (the Union). In 2004, ConocoPhillips adopted a substance abuse policy which provided for random drug and alcohol testing. It also provided that any employee who had a confirmed positive test result would be terminated. Although the Union filed a collective grievance over the company's adoption of the policy as well as an unfair labor practice charge, it eventually entered into a Memorandum of Agreement with the company in which it agreed not to grieve a termination under the policy. In 2006, Nemsky was selected for a random drug and alcohol test shortly after he used solvent to remove cement from his shoes. The test came back as a confirmed positive. ConocoPhillips terminated Nemsky's employment. The Union indicated its intent to arbitrate his termination. Nemsky filed an action against the Union and ConocoPhillips with the NLRB, complaining that the Union and ConocoPhillips never arbitrated his termination. Nemsky filed suit against both ConocoPhillips and the Union. Nemsky alleged that ConocoPhillips breached the Collective Bargaining Agreement and that the Union had breached its duty of fair representation. The district court granted summary judgment to defendants. Nemsky appeals.
In their opinion, Judges Flaum, Wood and Tinder affirmed. The Court identified Nemsky's claim as a "hybrid 301" action. In such an action, Nemsky must prevail on both his claim that the company breached the Collective Bargaining Agreement and his claim that the Union breached its duty of fair representation. The Court first addressed the fair representation claim. In order to prevail on that claim, the Court noted that Nemsky must show that the Union’s conduct was arbitrary or discriminatory or in bad faith. Nemsky argued that the Union acted arbitrarily in agreeing to the Memorandum of Understanding. The Court concluded otherwise. The Union’s unfair labor practice charge had been dismissed and no other union in the country had been successful in challenging the company's policy. The Court did, however, note that there was evidence that the Union failed to arbitrate Nemsky's termination after he filed his charges. The Court concluded that that was enough to preclude summary judgment on the fair representation aspect of Nemsky's claim. With respect to the company's breach however, the Court concluded that the Union’s agreement to the Memorandum of Understanding defeated any allegation that Nemsky's termination was a breach of the Collective Bargaining Agreement. Since he was required to prevail on both aspects of the hybrid claim, the Court affirmed the lower court's ruling.
