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RANDALL R. HINKLEY v. ROADWAY EXPRESS, INC.; LOCAL UNION #41 OF THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
Case Number: 06-3097
Judge: Deanell Reece Tacha
Court: UNITED STATES COURT OF APPEALS
Defendant's Attorney: Not Listed
Denver, CO – Labor Relations lawyer represented Plaintiff - Appellant with a violation of the collective bargaining agreement between his employer and his union 00and that his union breached its duty of fair representation in handling his grievance claim.
Mr. Hinkley worked as a city driver for Roadway, a nationwide trucking company.
He was also a member of the Union, which served as his exclusive bargaining agent
under a collective bargaining agreement (“CBA”) between Roadway and the Union.
Under the CBA, Mr. Hinkley may not be terminated “without just cause,” although “no
warning or notice need be given . . . before he is discharged if the cause of such discharge
is proven dishonesty,” which is in fact Roadway’s reason for firing Mr. Hinkley. The
CBA also establishes a grievance procedure for employment disputes, including the
discharge of an employee.
In addition, under the CBA, Roadway may not use “computer tracking devices”
for disciplinary purposes except in a few limited situations not at issue in the present case.
Some Roadway trucks contain a Roadway Digital Dispatch system (“RDD”). The driver
uses the RDD system to record delivery and pick-up information, and the dispatcher uses
the RDD system to send messages to the driver. The RDD system also includes a
tracking system called a global positioning system (“GPS”), which tracks the location of
Roadway trucks by satellite. In handling Mr. Hinkley’s grievance against Roadway, the
Union argued that the CBA prohibits Roadway from using tracking data obtained from
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The District Court identified the GPS, rather than the entire RDD system, as the 1
computer tracking device that the Union argued Roadway could not use for disciplinary
purposes under the CBA. In his brief, however, Mr. Hinkley refers to both the RDD and
the GPS in discussing the computer tracking device specified in the CBA. Based on our
review of the record, we agree with the District Court. During the grievance hearings,
Mr. Hinkley’s Union representative referred to the GPS as the tracking device used by
Roadway to initiate discipline. When we refer to tracking data, we are therefore referring
to data obtained from the GPS, rather than the entire RDD system.
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the GPS for disciplinary purposes.1
On June 6, 2003, Mr. Hinkley worked from 4:00 p.m. to 12:30 a.m. He was
scheduled to make deliveries to two Home Depot stores—one in Bannister, Missouri, and
one in Lee’s Summit, Missouri. Between these two deliveries, Mr. Hinkley stopped at the
Home Depot store in Independence, Missouri.
The following Monday, June 9, Darryl Hoag, Roadway’s driver manager,
reviewed Mr. Hinkley’s RDD entries and noticed significant time discrepancies and
missing entries for his shift on June 6. He then reviewed Mr. Hinkley’s loading guides,
dispatch summary sheet, delivery receipts, and the GPS positioning report. Based on the
GPS report, Mr. Hoag determined that Mr. Hinkley’s RDD entries were incorrect. He
then asked Mr. Hinkley to report to his office with a Union representative when he
arrived at work that day.
Mr. Hinkley and a Union representative subsequently met with Mr. Hoag, who
questioned Mr. Hinkley about his whereabouts the previous Friday, June 6. During this
interview, Mr. Hinkley admitted he was at the Home Depot store in Independence where
he had no authorized company business. When Mr. Hoag asked him why he visited the
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Independence store, Mr. Hinkley replied that he was “taking care of the customer,” but
would not give specific details. He also stated he was taking his lunch break at this time.
Two days later, on June 11, Roadway terminated Mr. Hinkley for “proven dishonesty”
related to his actions on June 6.
After Mr. Hinkley’s discharge, the Union filed a grievance on his behalf, and on
June 17, a joint labor-management committee called the Kansas City Local Cartage
Committee (“Local Cartage Committee”) held a grievance hearing. At the hearing, Mr.
Hinkley’s Union representative, Victor Terranella, raised a point of order regarding the
CBA’s provision prohibiting the use of computer tracking devices (i.e., the GPS) for
disciplinary purposes. Mr. Terranella argued that because Mr. Hoag consulted computer
tracking data after noticing time gaps in Mr. Hinkley’s RDD entries, Roadway had used a
computer tracking device for disciplinary purposes in violation of the CBA, and Mr.
Hinkley should therefore be reinstated with full seniority and back pay. The Local
Cartage Committee deadlocked on the point of order.
In accordance with the grievance procedure under the CBA, the Union then
pursued Mr. Hinkley’s grievance before the Missouri-Kansas Two-State Committee
(“Mo-Kan Committee”). On July 8, the Mo-Kan Committee held a hearing, at which Mr.
Terranella raised the same point of order regarding Roadway’s use of the GPS data. The
Mo-Kan Committee upheld the point of order and sent the grievance back to the Local
Cartage Committee to be heard on the merits without the use of any computer tracking
data. On July 22, the Local Cartage Committee held a hearing on the merits and upheld
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Mr. Hinkley’s discharge.
Mr. Hinkley subsequently filed a claim against both Roadway and the Union under
section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, alleging Roadway
breached the CBA and the Union breached its duty of fair representation. The District
Court granted both defendants’ motions for summary judgment, concluding that Mr.
Hinkley had failed to present any evidence that the Union breached its duty of fair
representation—a necessary element of Mr. Hinkley’s claim against both defendants. Mr.
Hinkley appeals the court’s order, arguing that summary judgment was improper because
material issues of fact exist concerning the Union’s representation.
We review the District Court’s grant of summary judgment de novo, applying the
same standards that the District Court applied. Young v. United Auto. Workers-Labor
Employment & Training Corp., 95 F.3d 992, 996 (10th Cir. 1996). Roadway and the
Union are entitled to summary judgment if the evidence shows that “no genuine issue as
to any material fact” exists. Fed. R. Civ. P. 56(c). In making this determination, “[w]e
view the record and all inferences therefrom in the light most favorable to” Mr. Hinkley
as the nonmoving party. Nelson v. Holmes Freight Lines, Inc., 37 F.3d 591, 594 (10th
A. Standard Applicable to Duty of Fair Representation Claims
Mr. Hinkley’s claim is a hybrid action under section 301 of the Labor Management
Relations Act. To prevail against either Roadway or the Union, Mr. Hinkley must prove:
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(1) his former employer, Roadway, violated the CBA, and (2) the Union breached its duty
of fair representation. Nelson, 37 F.3d at 594 (“In a hybrid action, an employee’s claims
are directed against both the former employer and the union, and allege a violation of the
collective bargaining agreement by the employer and a breach of the duty of fair
representation by the union.”). The sole issue before us on appeal is whether the Union
breached its duty of fair representation in handling Mr. Hinkley’s grievance against
A union representing an employee in a grievance or arbitration procedure breaches
its duty of fair representation by acting “in a discriminatory, dishonest, arbitrary, or
perfunctory fashion.” Int’l Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 864 n.6
(1987) (quotation omitted); see also Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1239
(10th Cir. 1998) (noting that this Court has repeatedly described this standard “as
prohibiting arbitrary, discriminatory, bad faith, or perfunctory conduct”). In the case
before us, Mr. Hinkley argues that the Union’s conduct was arbitrary and perfunctory and
that it acted in bad faith.
The Union’s representation of Mr. Hinkley is arbitrary “only 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 reasonableness, as to be irrational.” Air Line Pilots Ass’n,
Int’l v. O’Neill, 499 U.S. 65, 67 (1991) (citation and quotation omitted). For the Union to
act in a “perfunctory” fashion, it would have to act “‘without concern or solicitude, or
[give] a claim only cursory attention.’” Webb, 155 F.3d at 1240 (quoting Beavers v.
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United Paperworkers Int’l Union, Local 1741, 72 F.3d 97, 100 (8th Cir. 1995)). To
establish arbitrary or perfunctory action, Mr. Hinkley must demonstrate that the Union’s
actions constitute more than “mere errors in judgment,” Hines v. Anchor Motor Freight,
Inc., 424 U.S. 554, 571 (1976), or “mere negligence,” United Steelworkers v. Rawson,
495 U.S. 362, 372–73 (1990). To establish that the Union acted in bad faith, he must
present evidence of “fraud, deceitful action or dishonest action.” Mock v. T.G. & Y.
Stores Co., 971 F.2d 522, 531 (10th Cir. 1992).
Moreover, even if the Union breached its duty of fair representation, Mr. Hinkley
must show that the breach “seriously undermined” the grievance proceedings. Webb, 155
F.3d at 1242; see also VanDerVeer v. UPS, Inc., 25 F.3d 403, 405 (6th Cir. 1994) (“[T]he
plaintiff must meet the onerous burden of proving that the grievance process was
seriously flawed by the union’s breach of its duty to represent employees honestly and in
good faith and without invidious discrimination or arbitrary conduct.” (quotation
omitted)). As we have previously noted, judicial review of a union’s conduct is highly
deferential. Young, 95 F.3d at 997 (holding that this Court will not second-guess a
union’s “good faith, nondiscriminatory judgment in assessing and presenting its
B. Evidence that the Union Breached Its Duty of Fair Representation
Mr. Hinkley argues that the Union breached its duty of fair representation because
his Union representative, Mr. Terranella, acted in an arbitrary and perfunctory fashion by
failing to object to one of the panel members hearing his grievance and failing to
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Mr. Hinkley argues that the District Court misapplied the standard applicable to 2
summary judgment motions by improperly weighing evidence and not considering the
record in the light most favorable to him as the nonmoving party. To support this
argument, he cites employment discrimination cases, in which we note that, once a
plaintiff presents evidence that an employer’s stated reason is a pretext for discrimination,
a jury should determine whether the employer actually had a discriminatory motive. See,
e.g., Randle v. City of Aurora, 69 F.3d 441, 453 (10th Cir. 1995). We fail to see how
these cases apply, as Mr. Hinkley has not alleged that the Union’s conduct was
discriminatory. To the extent he is arguing that a jury should decide whether the Union
acted in bad faith, he must present some evidence of “fraud, deceitful action or dishonest
action.” Mock, 971 F.2d at 531. As we note below, he has failed to do so.
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introduce evidence of Roadway’s improper use of information obtained from the
computer tracking device. He also contends that certain remarks made by Mr. Terranella
indicate that the Union acted in bad faith. Based on our review of the record, however,
the Union did not act in bad faith or in an arbitrary or perfunctory manner in its handling
of Mr. Hinkley’s grievance. As we explain below, none of the conduct that Mr. Hinkley
identifies suggests that the Union breached its duty of fair representation.2
First, Mr. Hinkley argues that Mr. Terranella acted arbitrarily in failing to object to
one of the panel members who heard his grievance. On July 8, 2003, the day of Mr.
Hinkley’s hearing before the Mo-Kan Committee, Yellow Corporation (“Yellow”)
announced its intent to acquire Roadway. The labor relations manager for Yellow
Transportation, John Graves, was a member of both the Local Cartage and the Mo-Kan
Committees that heard Mr. Hinkley’s grievance. Mr. Hinkley argues that Mr. Terranella
should have objected to Mr. Graves’s serving on these committees because, in light of the
pending merger, a Yellow employee would not be an impartial arbitrator. In support of
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this requirement of impartiality, Mr. Hinkley notes that the CBA’s procedural rules do not
allow representatives of employers who are parties to the grievance to serve on the
committees hearing the grievance.
The grievance procedures under the CBA do not, however, ensure the complete
impartiality of grievance committees. Instead, the CBA directs that employers and unions
appoint an equal number of committee members. Potential bias is therefore an inherent
part of the selection process; some members represent employers and some represent
unions. See United Steelworkers of Am. Local 1913 v. Union R.R. Co., 648 F.2d 905, 913
(3d Cir. 1981) (characterizing a public law board consisting of a carrier representative and
a union representative as “bipartisan rather than impartial and disinterested”). Indeed,
even though the CBA’s procedural rules also prohibit representatives of the local union
from serving on grievance committees, members of Mr. Hinkley’s union, Local 41, sit on
grievance panels because Local 41 is the only local in the area. Moreover, the Union had
not notified Mr. Terranella of any change in policy regarding the inclusion of Yellow
employees on panels hearing grievances involving Roadway, and although Yellow had
announced its intention to acquire Roadway, the acquisition was not complete until after
Mr. Hinkley’s grievance was resolved. Given the nature of joint labor-management
committees and the fact that Mr. Graves was merely a representative of an entity
intending to acquire Roadway, Mr. Terranella’s decision not to object to Mr. Graves as a
panel member is not arbitrary or perfunctory. It does not fall outside the “wide range of
reasonableness” accorded union representatives, see O’Neill, 499 U.S. at 67, or indicate a
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lack of concern for Mr. Hinkley’s grievance, see Webb, 155 F.3d at 1240.
Second, Mr. Hinkley contends that Mr. Terranella should have introduced the first
page of an inter-office memorandum during the final grievance hearing. In that
memorandum, Mr. Hoag explained that his interview with Mr. Hinkley occurred after Mr.
Hoag noted discrepancies in Mr. Hinkley’s RDD entries and consulted GPS tracking data
for the day in question. According to Mr. Hinkley, this part of the memorandum shows
that his discharge was based on his employer’s use of a computer tracking device in
violation of the CBA. Mr. Terranella had made this very argument in the first hearing
before the Local Cartage Committee and then again before the Mo-Kan Committee,
urging both committees to order that Mr. Hinkley be reinstated because his discharge was
based on Roadway’s improper use of computer tracking data. The Mo-Kan Committee
agreed that the tracking data should be excluded from the grievance proceedings, but
directed that the case nevertheless be heard on “its merits on discussion with employee.”
Mr. Terranella understood the Mo-Kan Committee’s decision as a directive that the Local
Cartage Committee hear the case based on what transpired in Mr. Hinkley’s meeting with
Mr. Hoag. Relying on his understanding of the Mo-Kan Committee’s decision, Mr.
Terranella did not argue again that Roadway terminated Mr. Hinkley based on improper
use of computer tracking data. In other words, he made a rational decision not to reargue
an issue he thought had already been decided. Hence, his decision not to introduce the
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Mr. Hinkley also claims that Mr. Terranella withheld the first page of this 3
memorandum from him until his grievance proceedings were finished. He argues that
Mr. Terranella intentionally (i.e., in bad faith) withheld this information to conceal his
poor representation, but he offers no evidence that would support his allegations of
improper motive. Consequently, we find this argument meritless.
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first page of the memorandum is not arbitrary.3
In a related argument, Mr. Hinkley claims that Mr. Terranella acted arbitrarily in
not objecting to Roadway’s introduction of evidence based on his meeting with Mr. Hoag
because the meeting would not have occurred if Mr. Hoag had not reviewed the computer
tracking data and used it for disciplinary purposes in violation of the CBA. His theory is
based on an evidentiary rule applied in criminal cases: that is, because the CBA prohibits
use of a computer tracking device for disciplinary purposes, the statements Mr. Hoag
obtained during his interview with Mr. Hinkley were the “fruit of the poisonous tree” and,
as such, could not be used for disciplinary purposes. But this doctrine—intended to deter
unlawful governmental action—does not apply in this context. See Jenkins v. City of
New York, 478 F.3d 76, 91 n.16 (2d Cir. 2007) (“[T]he doctrine is an evidentiary rule that
operates in the context of criminal procedure and has generally been held to apply only in
criminal trials.” (quotation omitted)). Furthermore, the fact that Mr. Terranella did not
present a particular argument does not establish a breach of duty under section 301 when,
as in the instant case, the union representative presented other arguments in support of the
employee. Young, 95 F.3d at 998 (“[T]he failure to present a particular argument is
insufficient to create a genuine issue of material fact in light of the other efforts made by
[the union representatives].”); see also Mock, 971 F.2d at 531 (“Simply showing that the
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Union did not represent [the former employees] as vigorously as it could have does not
establish a section 301 violation.”).
Finally, Mr. Hinkley claims that the Union acted in bad faith by discussing his
grievance in advance of the grievance hearings. He claims that Mr. Terranella indicated
that the Union members of the grievance committees were “on the same page” and that
the Union routinely works out deals in advance of grievance hearings. Mr. Hinkley
supports his allegation of bad faith by drawing our attention to a brief exchange he had
with Mr. Terranella. When asked by Mr. Hinkley whether the Union members of the
grievance committee were all “on the same page,” Mr. Terranella replied affirmatively,
remarking that “we discuss these things.” Even if this were true, the record contains no
evidence that the Union intentionally provided Mr. Hinkley with poor representation, see
Young, 95 F.3d at 997 n.1, or engaged in fraudulent, deceitful, or dishonest behavior in its
representation of Mr. Hinkley, id. In other words, even if Union members discussed the
case, nothing in the record suggests that Mr. Terranella or other Union members were
acting in bad faith in connection with Mr. Hinkley’s grievance.
Outcome: Because no genuine issue of material fact exists as to whether the Union breached
its duty of fair representation, we AFFIRM the District Court’s grant of summary judgment in favor of the Union and Roadway