Federal District Court Opinions

JONES v. U.S. POSTAL SERVICE, (E.D.Mich. 11-9-2006) JOHN
et al., Defendant. No. 04-CV-74540-DT. United States
District Court, E.D. Michigan, Southern Division. November
9, 2006


GERALD ROSEN, District Judge


This hybrid Section 301 breach of contract/breach of duty of
fair representation claim is presently before the Court on
the Motions for Summary Judgment filed by Plaintiff’s
employer, Defendant United States Postal Service, and
Plaintiff’s union, Defendant American Postal Workers Union,
AFL-CIO (the “APWU”). Plaintiff has responded to these
Motions and Defendants have replied. Having reviewed and
considered the parties’ various briefs and supporting
evidence, the Court has determined that oral argument is not
necessary. Therefore, pursuant to Eastern District of
Michigan Page 2 Local Rule 7.1(e)(2), this matter will be
decided on the briefs. This Opinion and Order sets forth the
Court’s ruling.


Plaintiff John Eric Jones is a United States Postal Service
employee. Jones began his employment with the Postal Service
in August 1987, as a part-time flexible (“PTF”) clerk at the
Saline, Michigan Post Office. He became a full-time regular
(“FTR”) clerk in 1993 and remained employed in that capacity
at the Saline Post Office through September 2001.

Plaintiff’s Transfer from the Saline Post Office to the
Allen Park Bulk Mail Center

In June 2001, Dorothy Collins, the Postmaster at the Saline
Post Office, announced that the Bulk Mail Center (“BMC”) in
Allen Park, Michigan was accepting applications for
maintenance mechanic positions. Shortly thereafter,
Plaintiff attended an open house at the BMC in order to
learn more about the position. During his visit, Plaintiff
was given a tour of the facility by Bob Shirlin, a
maintenance supervisor. After taking the tour, Plaintiff
decided to obtain the necessary training to qualify for a
maintenance mechanic position. He thereafter enrolled in a
six-week training class at Wayne County Community College
and took the in-service examination.

In August 2001, Jones’ name was placed on a register of
qualified people for open maintenance mechanic positions. On
August 31, 2001, Jones received an interview notice from the
Postal Service. The notice stated that it was not an offer
of employment and Plaintiff was, accordingly, advised that
he should not resign from his position at that Page 3 time.
The interview notice also contained a “Declination
Statement” for Jones to complete if he wanted to decline a
maintenance mechanic appointment.[fn1] Plaintiff did not
decline the appointment; instead, he marked the box
requesting that his name be retained on the register for
“Career [Maintenance Mechanic] Appointments,” signed it, and
returned it to the Postal Service together with his
completed application for the maintenance mechanic position
at the BMC, indicating on his application that he was
available “right away.” See Postal Service Ex. 2. Page 4

Jones was interviewed for the position by Bob Shirlin, the
same maintenance supervisor who had previously given Jones a
tour of the BMC facility, on September 6, 2001. During the
course of the interview, Jones was shown a copy of the
maintenance mechanic job description and asked substantive
questions about his abilities to perform certain maintenance

On September 13, 2001, Saline Postmaster Dorothy Collins,
was notified by Linda Stokes, a Human Resources Department
employee, that Plaintiff had been selected to be a Level 5
Maintenance Mechanic at the BMC and that the Postal Service
was requesting an effective date of September 22, 2001 for
Plaintiff’s transfer. See Postal Service Ex. 7. Ms. Stokes
further indicated that Plaintiff was to report to the Main
Post Office in Detroit for orientation on September 24,
2001. Id. Ms. Stokes also advised Ms. Collins that a Form 50
would be mailed to Plaintiff. Id. (A “Form 50” is the form
used by the Postal Service when an employee transfers
positions within the Postal Service to effectuate his
transfer to the BMC.) Ms. Collins, in turn, informed
Plaintiff that he was awarded the BMC Maintenance Mechanic
position and gave him a copy of the email message from Ms.
Stokes for his records.

Jones signed the Form 50 upon receiving it. Then, on
September 24, 2001, Jones and three other transferred
employees reported for duty, and as scheduled, attended a
two-day orientation at the Main Post Office in Detroit.
During the orientation, Plaintiff reviewed the job
description, received information about employee benefits,
read maintenance books, and filled out “a lot of paperwork.”
[Plaintiff’s Dep., pp. 17-18; 24-25.] Page 5 Plaintiff was
also told during his orientation period that information
regarding his work schedule and job assignment would be
provided to him at the BMC. Id. p. 19.

On September 26, 2001, Plaintiff reported to the BMC along
with the three other postal employees who had been selected
for the maintenance mechanics positions. BMC Supervisor, Pat
Byrnes, informed Plaintiff that he had been assigned to the
afternoon shift with either Tuesdays and Wednesdays, or
Wednesdays and Thursdays as his days off. Supervisor Byrnes
also told Plaintiff and the other new maintenance mechanics
that the two transferees with the highest seniority would be
designated “full-time regulars” and the other two would be
designated “unassigned regulars.” (The “unassigned regular”
position is a full-time position with a guaranteed minimum
40 hours with two days off per week. The only difference
from a “full-time regular” position is that while the hours
are set for unassigned regulars, the employee’s duties might
vary based on the needs of the Postal Service.) Jones was
not one of the two transferred employees with the highest
seniority and was, therefore, designated as an “unassigned

After Supervisor Byrnes finished the meeting, Plaintiff and
the other three transferees spent the remainder of their
work day signing papers and taking a tour of the BMC. Jones
admitted in his deposition that he did not at any time
during the meeting with Byrnes or during the tour of the BMC
facility express that he did not want the position.

However, the next day, September 27, 2001, Plaintiff met
with Supervisor Byrnes and Rod Collins, a union
representative. Plaintiff told Byrnes and Collins that he
decided Page 6 he did not want the BMC position because he
did not like his work schedule and that he wanted to return
to his old clerk’s position at the Saline Post Office.
Plaintiff explained that his daughter was living with him
and he “didn’t let her have that much time to herself.”
[Plaintiff’s Dep., pp. 125-126.] Plaintiff was advised to
notify Human Resources of his request so that the Postal
Service could begin the paperwork to transfer his payroll
back to the Saline Post Office. He was further advised that
he needed to put his request to return to Saline in writing.

The next day, Jones called Leonard Brown, Manager of Human
Resources at the BMC, who told Jones that he would have to
stay at the BMC until the transfer paperwork was
processed.[fn2] Jones, however, did not immediately put his
request for re-assignment in writing; it was not until
October 11, 2001 that he hand-delivered a letter to the
Human Resources Office. Jones’ letter stated as follows:

Mrs. Stokes[,] my name is John E. Jones ss# ____, I’m
writing you in the personnel department in regards to my
retreat rights. On 9/22/01 I was reassigned form [sic; from]
Saline Post Office to the BMC in Allen Park. On 9/27/01 I
had a meeting with my union steward Rod Collins and
supervisor Pat Burns [sic] on the issue of me returning to
my old office. They both agreed that it would be ok but I
would have to put it in writing, so here is my request. You
may contact either of them at the Allen Park BMC to let them
know which steps to take next.

Thank you [signed] John E. Jones

[Postal Service Ex. 8.] Page 7

Then, on October 29, 2001, Plaintiff faxed the following
letter to BMC Human Resources Manager Leonard Brown
requesting reassignment to Saline because he had a fear of

Mr. Brown[,] my name is John Eric Jones SS# ____ I am the
person you and Chuck Turner had the discussion about. Do
[sic; Due] to my fear of heights I would be unable to
perform my duties in the maintenance department at the BMC
in Allen Park. Therefore I’m requesting to be reassigned to
my vacated position in the Saline Post Office.

Thank You

John Eric Jones

[Postal Service Ex. 9.]

On November 28, 2001, Jones was informed that his transfer
request back to the Saline Post Office was being granted.
However, Jones was also informed at that time that he was
being assigned to the Saline Post Office as a part-time
flexible (“PTF”) clerk and that he had lost his accrued
facility craft seniority. Jones lost his accrued seniority
at the Saline Post Office (thereby depriving him of the
right to return to his previous full-time regular (“FTR”)
clerk position) because he voluntarily transferred to the
BMC from the Saline Post Office and from the Clerk Craft to
the Maintenance Craft. [Deposition of Richard Blake, Union
Ex. B, p. 39.]

Article 37.2.D.6 of the Collective Bargaining Agreement
between the APWU and the U.S. Postal Service (the “CBA”),
which applies to Postal Service employees in the Clerk
Craft, provides as follows:

6. Changes in Which Seniority is Lost Page 8

Except as specifically provided elsewhere in this Agreement,
a full-time employee or a part-time regular employee begins
a new period of seniority:

a. When the change is:

(1) from one postal installation to another at the
employee’s request.

(2) from another craft to the Clerk Craft (voluntarily or

[See Union Ex. C, Declaration of Terry Stapleton, Decl. Ex.

Plaintiff’s Grievance

On December 1, 2001, Plaintiff reported back to the Saline
Post Office. That day, he contacted Richard Blake, a steward
for the Michigan Postal Workers Union (the “MPWU”) whose
jurisdiction includes the Saline Post Office. Jones told
Blake that he felt that because he never “accepted” the
maintenance mechanic position at the BMC, he should have
been able to return to his old FTR clerk’s position at the
Saline Post Office with all of his seniority rights intact.
Blake told Jones that he would look into the matter and that
he would set up a meeting with Postmaster Collins. Jones,
however, did not initiate a Step 1 grievance challenging his
reassignment to PTF and loss of seniority. Step 1 of the
grievance procedure in the CBA provides, in relevant part,
as follows: Page 9

Any employee who feels aggrieved must discuss the grievance
with the employee’s immediate supervisor within fourteen
(14) days of the date on which the employee or the Union
first learned of its cause. The employee, if he or she so
desires, may be accompanied and represented by the
employee’s steward or a Union representative. The Union also
may initiate a grievance at Step 1 within 14 days of the
date the Union first became aware of (or reasonably should
have become aware of) the facts giving rise to the
grievance. In such case, the participation of an individual
grievant is not required.

[See Union Ex. C, Stapleton Decl. Ex. 3.]

On December 5, 2001, Plaintiff and Blake met with Postmaster
Collins. At this time, Blake gave Postmaster Collins a
“Request for Information & Documents Relative to Processing
a Grievance.” Blake told Plaintiff that he would get back to
him after he received the requested paperwork from

Approximately a week later, Plaintiff called Blake to find
out the status of his situation. Blake told Plaintiff that
he still had not received the paperwork from management and,
therefore, he had no new information regarding Jones’

Meanwhile, Plaintiff contacted the Postal Service directly
to complain about his PTF status. On December 19, 2001, Lee
Ward, Manager of Personnel Services, advised Plaintiff that
his reassignment to the Saline Post Office as a PTF clerk
was in accordance with Article 37, section 6 of the CBA.
Obviously not happy with what Ward told him, on December 30,
2001, Plaintiff wrote to Detroit District Manager John
Talick attempting to obtain a different result. See Postal
Service Ex. 11. Talick, however, informed Plaintiff by
letter on February 8, 2002 that his return to the Saline
Post Office had been handled properly under the CBA. See
Postal Service Ex. 12. Page 10

Meanwhile, Richard Blake, the MPWU steward, continued his
investigation into the matter. Blake’s initial reaction to
Mr. Jones’ situation was that it was a “pretty bizarre set
of circumstances.” [Blake Dep., pp. 56, 62-63]. He “felt
that in order to substantiate what Mr. Jones was asserting”
— i.e., that he never actually transferred from his
FTR Saline Post Office position to the BMC maintenance
mechanic position such that he should not have lost his
seniority upon returning to Saline — he “had an
enormous burden to overcome.” Id. at p. 56.

To ascertain the correctness of Jones’ contention, Blake
made “numerous requests” to obtain Jones’ Form 50, which
contained information regarding his reassignment as a PTF.
Id. at 13-14. In addition, Blake made several phone calls to
local and district managers concerning Jones’ situation. Id.
at 17, 57. It was not until Jones showed him the February 8,
2002 letter from John Talick that Blake had evidence
confirming that the Postal Service had, in fact, reassigned
Jones to a PTF position. Id. at p. 54. After reading this
letter, Blake concluded that Plaintiff’s situation could not
be resolved without resorting to the grievance process. Id.
at p. 55. Blake started “brainstorming” and “virtually
immediately” filed a Step 1 grievance. At the time Blake
filed the grievance, on February 21, 2002, Blake had no
reason to believe that it was untimely. Id. at 79.

Blake believed that seniority and reassignment issues were
ongoing violations that allowed the Union to file a
grievance under the CBA during the entire time period that
the employee was in the improper classification designation,
plus 14 days. Id. at 31, 50. He Page 11 based this belief on
having recently handled two other grievances regarding the
same issue and “in both of those cases the employer
acknowledged that this is deemed an ongoing violation.” Id.
at 31.

The grievance was denied by the Postal Service at Steps 1
and 2. Id. at pp. 34-35.[fn4] Blake believed that Jones’
situation had “enough merit that it warranted being pursued
and being placed in front of an arbitrator.” Id. at p. 58.
Therefore, he appealed the grievance to arbitration.

An arbitration hearing was held on March 1 and 11, 2004
before Arbitrator Alan Walt. Plaintiff was present at the
hearing. Richard Blake testified at the hearing on
Plaintiff’s behalf. On May 20, 2004, Arbitrator Walt ruled
that the grievance was not timely filed at Step 1 and,
therefore, was not arbitrable. The Arbitrator found that the
grievance should have been filed within 14 days of December
1, 2001, when, upon Plaintiff’s return to the Saline Post
Office, he became aware that his status had changed from
full-time regular to part-time flexible. Arbitrator Walt did
not address the merits of the grievance.

Notwithstanding the results of the arbitration, the APWU and
the Postal Service continued to discuss Plaintiff’s
situation. Mr. Blake had numerous discussions with John Page
12 Clark, the senior National Business Agent for the APWU in
the Chicago Region regarding the matter in the fall of 2004.
Mr. Clark subsequently was able to negotiate a settlement
with the Postal Service of Plaintiff’s underlying grievance.

Under the terms of the settlement agreement, the Postal
Service agreed to disregard the arbitration award and
restore Mr. Jones to full-time regular status and give him
his in-house seniority back. Accordingly, in December 2004,
Jones was returned to his FTR clerk’s position and was
restored his 14 years of seniority. Pursuant to the Postal
Service’s agreement with the APWU, however, Plaintiff was
not paid any compensation in connection with the settlement.
Plaintiff calculates the pay differential that he lost
during the nearly three years that he was classified as a
PTF clerk to be approximately $35,590.

Meanwhile, on November 19, 2004, Plaintiff initiated this
hybrid § 301 breach of contract/breach of duty of
fair representation lawsuit. With respect to his DFR claim,
Plaintiff alleges that the Union breached its duty of fair
representation by failing to timely file his grievance. He
also claims that the Postal Service breached the collective
bargaining agreement with respect to his assignments,
seniority rights and transfers. Discovery has now closed in
this matter, and the Postal Service and the Union have both
moved for summary judgment.



Summary judgment is proper “`if the pleadings, depositions,
answer to Page 13 interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.'”
Fed.R.Civ.P. 56(c).

Three 1986 Supreme Court cases — Matsushita
Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S.
574 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986); and Celotex Corp. v. Catrett, 477 U.S. 317 (1986)
— ushered in a “new era” in the standards of review
for a summary judgment motion. These cases, in the
aggregate, lowered the movant’s burden on a summary judgment
motion.[fn5] According to the Celotex Court,

In our view, the plain language of Rule 56(c) mandates the
entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element
essential to that party’s case, and on which that party will
bear the burden of proof.

Celotex, 477 U.S. at 322.

After reviewing the above trilogy, the Sixth Circuit
established a series of principles to be applied to motions
for summary judgment. They are summarized as follows:

* The movant must meet the initial burden of showing “the
absence of a genuine issue of material fact” as to an
essential element of the non-movant’s case. This burden may
be met by pointing out to the court that the respondent,
having had sufficient opportunity for discovery, has no
evidence to support an essential Page 14 element of his or
her case.

* The respondent cannot rely on the hope that the trier of
fact will disbelieve the movant’s denial of a disputed fact,
but must “present affirmative evidence in order to defeat a
properly supported motion for summary judgment.”

* The trial court no longer has the duty to search the
entire record to establish that it is bereft of a genuine
issue of material fact.

* The trial court has more discretion than in the “old era”
in evaluating the respondent’s evidence. The respondent must
“do more than simply show that there is some metaphysical
doubt as to the material facts.” Further, “[w]here the
record taken as a whole could not lead a rational trier of
fact to find” for the respondent, the motion should be
granted. The trial court has at least some discretion to
determine whether the respondent’s claim is plausible.

Betkerur v. Aultman Hospital Association, 78 F.3d 1079, 1087
(6th Cir. 1996). See also, Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1479-80 (6th Cir. 1989). The Court will apply
the foregoing standards in deciding Defendants’ Motions for
Summary Judgment in this case.


The body of law established under Section 301 of the Labor
Management Relations Act, 29 U.S.C. § 185, et seq.
(the “LMRA”) applies to hybrid claims involving the Postal
Service and labor organizations that represent postal
employees.[fn6] See Lawson Page 15 v. Truck Drivers,
Chauffeurs & Helpers, Local Union 100, 698 F.2d 250, 254
(6th Cir. 1983), cert. denied, 464 U.S. 814 (1983), and
cases cited therein.

The Supreme Court and Sixth Circuit have consistently held
that for a plaintiff to succeed on a hybrid breach of
contract claim, he must prove both that the union breached
its duty of fair representation and that the employer
breached the collective bargaining agreement. Chauffeurs,
Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558,
110 S.Ct. 1339, 1344 (1990); DelCostello v. International
Brotherhood of Teamsters, 462 U.S. 151, 163-65, 103 S.Ct.
2281 (1983); White v. Anchor Motor Freight, Inc., 899 F.2d
555 (6th Cir. 1990); Driver v. United States Postal Service,
328 F.3d 863, 868 (6th Cir. 2003) (“Liability cannot attach
to the Postal Service or the Union unless both prongs of
this test are satisfied”); Lucas v. Leaseway Multi
Transportation Service, Inc., 738 F.Supp. 214, 220
(E.D.Mich. 1990), aff’d, 929 F.2d 701, 1991 U.S. App. LEXIS
6093 (6th Cir. 1991) (“Since plaintiff’s count as to the
duty of fair representation fails, plaintiff’s other count
alleging a breach of the CBA also must fail”). Conversely,
without a valid claim against the employer, the union could
not be challenged because no duty to the employee would have
been triggered. White v. Anchor Motor Freight, supra, 899
F.2d at 559 (“[I]f the first claim anchored in the
employer’s alleged breach of the collective bargaining
agreement fails, then the breach of duty of fair
representation claim against the union must necessarily fail
with it”). This interdependency of § 301 claims has
been noted and approved by the Sixth Circuit:

In this hybrid suit under § 301 of the Labor
Management Relations Act, Page 16 29 U.S.C. § 185, to
recover against either the Company or the Union, [Plaintiff]
must show that the Company breached the Agreement and that
the Union breached its duty of fair representation. Unless
[Plaintiff] demonstrates both violations, he can not succeed
against either party.

Bagsby v. Lewis Bros., Inc., 820 F.2d 799, 801 (6th Cir.
1987) (citation omitted) (emphasis in original). See also
Black v. Ryder/P.I.E. Nationwide, Inc., 930 F.2d 505, 510
(6th Cir. 1991) (“In any event, when the union cannot be
held liable for unfair representation, of course, the
employer cannot be held liable for breach of the collective
bargaining agreement”). Page 17


The Supreme Court set the parameters of the duty of fair
representation in the seminal case of Vaca v. Sipes, 386
U.S. 171, 87 S.Ct. 903 (1967). As to what is required to
establish a union’s breach of its duty, the Vaca court

A breach of the statutory duty of fair representation occurs
only when a union’s conduct toward a member of the
collective bargaining agreement is arbitrary, discriminatory
or in bad faith.

87 S.Ct. at 916 (emphasis added).

In Air Line Pilots Association, International v. O’Neill,
499 U.S. 65, 111 S.Ct. 1127 (1991), the Court further
delineated what would constitute “arbitrariness” under the
Vaca standard:

We further hold that a union’s actions are 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

O’Neill, 111 S.Ct. at 1130 (emphasis added) (citation

This standard “gives the union room to make discretionary
decisions and choices, even if those judgments are
ultimately wrong.” Marquez v. Screen Actors Guild, 525 U.S.
33, 45-46 (1998). Therefore, merely characterizing a union’s
conduct as “arbitrary”, “perfunctory” or demonstrative of
“bad faith” is insufficient to withstand summary judgment.
Rather, to meet his burden of proof as to the union’s breach
of its duty of fair representation, a plaintiff must
establish by substantial evidence that the union acted
arbitrarily, discriminatorily or with bad faith. Motor Coach
Employees v. Lockridge, Page 18 403 U.S. 274, 299 (1971);
Ratkosky v. United Transportation Union, 843 F.2d 869 (6th
Cir. 1988) (summary judgment granted where plaintiff fails
to make a showing of bad faith, discrimination or arbitrary
conduct). “Simple negligence or mere errors of in judgment
will not suffice.” Walk v. P*I*E Nationwide, Inc., 958 F.2d
1323, 1326 (6th Cir. 1992). As the court explained in Black
v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573 (6th Cir.
1994), “The `relevant issue in assessing a Union’s judgment
is not whether it acted incorrectly, but whether it acted in
bad faith,’ or extremely arbitrarily, or discriminatorily.”
Id. at 584 (citation omitted).

Thus, “[u]nion action that can be rationally explained does
not violate a duty of fair representation.” Bruno v. United
Steelworkers of America, 983 F.2d 1065, 1993 WL 2300 at *3
(6th Cir. 1993) (unpublished decision; text available on
WESTLAW); see also Ruzicka v. General Motors Corp., 649 F.2d
1207 (6th Cir. 1981) (holding that reasoned conduct does not
violate the union’s duty of fair representation).

In this case, Plaintiff’s DFR claim is based upon his
contention that his union representative, Richard Blake,
failed to timely file a grievance protesting his assignment
to a PTF position upon his return to the Saline Post Office.
Blake explained in his deposition the reasons for his
decision not to immediately pursue the grievance upon Jones’
informing him of the reassignment and instead to wait until
he received confirmation of the action from the Postal
Service. Blake testified that his initial reaction to Jones’
presentation of his situation was that although Plaintiff’s
version presented a “pretty bizarre set of circumstances,”
he did not have “any evidence that Page 19 corroborated
[Plaintiff’s] version of the events.” Blake Dep., pp. 56,
62-63. Blake did not want to pursue a difficult grievance
without confirmation that there was actually a violation of
the National Agreement. Id. at 62-63. Blake testified that
he needed to investigate what Plaintiff was alleging and if
his reassignment and loss of seniority were potential
breaches of the contract. Id.

Blake further testified that if there were breaches of the
CBA, he viewed them as ongoing violations that would allow
the union to file a grievance during the entire period that
the employee was in the improper classification designation,
plus 14 days thereafter.[fn7] Id. He based this belief on
his prior handling of two other grievances involving similar
issues of reassignment and loss of seniority where, in both
cases, the Postal Service acknowledged that the contract
violation was an ongoing one. Id.

A similar situation existed in Ruzicka v. General Motors
Corp., supra. As in this case, in Ruzicka, the union failed
to timely file a grievance statement with the employer and
was subsequently sued by the grievant for breach of the duty
of fair representation. The union defended with evidence
that it relied on a past practice of the employer of
ignoring the deadline for the filing of grievance statements
where the union needed more time to investigate the matter.
The Sixth Circuit held that where the bargaining Page 20
representative’s failure to timely file the grievance
statement was due to reliance on a past practice, the union
would be relieved from liability. The court explained:

In relying on a past practice, a union’s omission is based
on a wholly relevant consideration, is not intended to harm
its member, and is not the type of arbitrariness which
reflects reckless disregard for the rights of the individual
employee. Such conduct, at times, manifests no more than
ordinary negligence and we cannot hold a union liable for
breach of the duty of fair representation based upon simple
negligence. The law in this circuit proscribes that result.
In Dill v. Greyhound Corp., 435 F.2d 231, 238 (6th Cir.
1970), cert. denied, 402 U.S. 952, 91 S.Ct. 1622, 29 L.Ed.2d
122 (1971) we held that bad faith was required to support a
claim of unfair representation where the union had made a
decision that the individual’s grievance was without merit.
See also Whitten v. Anchor Motor Freight, Inc., 521 F.2d
1335, 1341 (6th Cir. 1975), cert. denied, 425 U.S. 981, 96
S.Ct. 2188, 48 L.Ed.2d 807 (1976); Balowski v. International
U., United A.A. & A. Imp. Wkrs., 372 F.2d 829 (6th Cir.
1967). Admittedly, in those cases the merits of the
employee’s grievance had, in fact, been evaluated and
decided adversely to the employee by the unions which chose
not to pursue the grievances. In the present case the union
inaction served to terminate the grievance. Yet, we see no
reason to apply a stricter standard to a union’s filing of a
statement based on past practice than is applied to a
union’s decision not to pursue a grievance that it believes
to be without merit. In both cases, the union can articulate
a sufficient legal rationale to justify the manner in which
the grievance has been handled. Whatever the rationale, the
standard against which it is judged should be uniform. A
contrary conclusion would inject the courts into the process
of second-guessing a union representative’s decisions and
would undermine a union’s ability to rely on prevailing

649 F.2d at 1212.

Here, as in Ruzicka, the union has offered an arguably sound
reason for its decision not to immediately file the
grievance. Relying on his good faith understanding of the
past practice with respect to issues of reassignment and
loss of seniority and waiting for a response to his
information request, Mr. Blake believed that the issue
raised by Mr. Jones Page 21 — if indeed it turned out
to be a contract breach — would be a continuing
violation that could be handled in a similar manner to two
other grievances that he had recently handled with the
Postal Service after he completed his investigation into the
matter and confirmed Plaintiff’s allegations.

Under these circumstances, and by application of the
authorities cited above, Plaintiff cannot make out a legally
cognizable claim against the union for breach of the duty of
fair representation. Therefore, his hybrid claim must be
dismissed not only as against the APWU, but also as against
the Postal Service.


Even assuming arguendo that Plaintiff could make out a DFR
claim against his union, both Defendants are still entitled
to summary judgment on Plaintiff’s hybrid Section 301 claim
because Plaintiff cannot establish a breach of the
collective bargaining agreement.

The contract language in Article 37, Section 2.D.6, clearly
states that a postal employee loses seniority by requesting
to move from one postal installation to another. There is no
dispute that Plaintiff here requested a transfer from the
Saline Post Office to the Bulk Mail Center and from the
Clerk Craft to the Maintenance Craft. He filled out a
transfer form, got the transfer approved and went to work at
the BMC. The fact that Mr. Jones did not like the hours he
was assigned at the BMC did not operate to nullify his
voluntary transfer. Mr. Jones’ subjective interpretation of
the CBA — that he never “accepted” the transfer
because he immediately requested a transfer back to the
Saline Page 22 Post Office and that as a consequence, he was
not subject to the loss of seniority provisions in the
Agreement when he transferred back to Saline — is
irrelevant since he was not a party to the Agreement. And,
Plaintiff has not cited any contractual language in support
of his position that he was entitled to keep his seniority
under the circumstances of this case.

When determining whether the employer breached a collective
bargaining agreement, courts are required to look to the
“plain meaning of the agreement.” Roeder v. American Postal
Workers Union, 180 F.3d 733, 737 (6th Cir. 1998). The
seniority provision in the CBA in this case is clear and
unambiguous. Article 37, Section 2.D.6 states, in pertinent

6. Changes in Which Seniority is Lost

Except as specifically provided elsewhere in this Agreement,
a full-time employee or a part-time regular employee begins
a new period of seniority:

A. When the change is:

(1) from one postal installation to another at the
employer’s request.

(2) from another craft to the Clerk Craft (voluntarily or

The Postal Service acted entirely in accordance with this
provision when it classified Plaintiff as a part-time
flexible employee upon his transfer back to the Saline Post
Office, and, therefore, followed rather than breached, the
Collective Bargaining Page 23 Agreement.[fn8]


For all of the foregoing reasons,

IT IS HEREBY ORDERED that the Motions for Summary Judgment
filed by (1) Defendant American Postal Workers Union,
AFL-CIO and (2) Defendant United States Postal Service be,
and hereby are GRANTED. Accordingly,

IT IS FURTHER ORDERED that this case be, and hereby is,
DISMISSED, with prejudice.

[fn1] The Declination Statement portion of the notice
provided as follows:

? I am not available for the above appointment. My future
availability and reason for declining are shown below.

? Remove my name from the register until I notify your
office that I am available.

? Retain my name on the register for the types of
appointments checked below. (If you do not indicate your
availability for any type of appointment, your name will be
removed from the list of eligibles. Your name will be
restored to the register upon receipt of your written
request if the register is still in use and your eligibility
is current.)

? Career Appointments ? I will be available after__________

? Temporary Appointments ? Other (Specify): __________

My Reason for Not Being Available for This Appointment is:



______ Home Address (If changed) Signature Date ______

[Postal Service Ex. 5.]

[fn2] According to Plaintiff, he was told that this would
take two weeks. However, the paperwork processing took much
longer and Plaintiff stayed at the BMC for ten weeks before
he was transferred back to Saline.

[fn3] Article 38.3.E.1, which applies to Postal Service
employees in the Maintenance Craft, similarly states,
“Employees who change from one craft to another shall begin
a new period of seniority for preferred assignment. [Ex. 4
to Stapleton Declaration at Union Ex. C.] See also Article
38.3.E.2 (“Change from one postal installation to another .
. . will require the start of a new period of seniority for
preferred assignment.” Id.)

[fn4] Under the CBA, chartered locals, area locals, state
and regional organizations of the APWU handle grievances at
Steps 1 and 2. The National Union, which is the named union
defendant in this case, does not begin handling grievances
until they have been appealed by the chartered affiliates to
Step 3. Thus, the National Union was not involved in anyway
with respect to the decision of the Richard Blake or the
MPWU as to whether or when to pursue Plaintiff’s the

[fn5] “Taken together the three cases signal to the lower
courts that summary judgment can be relied upon more so than
in the past to weed out frivolous lawsuits and avoid
wasteful trials.” 10A C. Wright, A. Miller, M. Kane, Federal
Practice & Procedure, § 2727, at 35 (1996 Supp.).

[fn6] Hybrid claims alleging breach of contract by the
Postal Service and breach of the duty of fair representation
by a postal workers’ union may properly be brought in
federal court under the Postal Reorganization Act, 38 U.S.C.
§ 1208(b) (the “PRA”). This statute is “an analogue
of Section 301(a) of the LMRA.” Lawson v. Truck Drivers,
Chauffeurs & Helpers, Local Union 100, 698 F.2d 250, 254
(6th Cir. 1983). Therefore, courts apply Section 301 case
law to Postal Service labor relations cases arising under
the PRA. Id.

[fn7] The Sixth Circuit recognizes the “continuing
violation” concept in the labor arena. See D.E.I., Inc. v.
Ohio and Vicinity Regional Council of Carpenters, 155 Fed.
Appx. 164, 172 (6th Cir. 2005). See also, Monee Nursery &
Landscaping Co. v. Int’l Union of Operating Engineers, Local
150, 348 F.3d 671, 676 n. 2 (7th Cir. 2003) (one permissible
definition of the continuing violation theory is the “common
understanding” of the words, that is, that a violation of
the collective bargaining agreement was ongoing.)

[fn8] The Court further notes that Plaintiff received
substantially all of the relief he is entitled to under the
CBA by way of the post-arbitration settlement agreement with
the Postal Service negotiated by his union: He has been
returned to his FTR classification and all of his accrued
seniority has been restored. Page 1