                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
TITUS KORNEGAY,                )
                               )
          Plaintiff,           )
                               )
     v.                        )    Civil Action No. 11-984 (GK)
                               )
MASTER SECURITY, LLC, et al., )
                               )
          Defendants.          )
______________________________)

                              MEMORANDUM OPINION

       Titus    Kornegay     (“Plaintiff”     or     “Kornegay”)     brings     this

action against Master Security, LLC (“Master”) for breach of a

collective      bargaining    agreement      and   against    United      Union   of

Security       Guards   (“Union”)     for    breach    of   its    duty    of   fair

representation (“Defendants”), under Section 301 of the National

Labor Relations Act (“NLRA”), as amended, 29 U.S.C. § 151 et

seq.

       This    matter   is   before    the   Court    on    Master   and    Union’s

Motions for Summary Judgment on the Threshold Issue of the Duty

of Fair Representation [Dkt. Nos. 46 and 47]. Upon consideration

of   the   Motions,     Opposition,     Replies,      and   the    entire   record

herein, and for the reasons set forth below, the Motions are

granted.
I.   BACKGROUND

     A.    Factual Background 1

     Master   provides   security   services    for   federal   government

agencies, among other clients. Kornegay is a former part-time

security guard who was employed by Master at the headquarters

building of the U.S. Department of Housing and Urban Development

(“HUD”) in Washington, D.C. Kornegay worked for Master for over

two years before Master terminated his employment on March 10,

2011.

     Union is an unaffiliated labor organization that represents

1500 or more security officers in the Greater Washington, D.C.-

Baltimore, Md. Metropolitan Area, among other localities. Union

utilizes   work-site   stewards   to   assist   security   officers   with

grievances as well as to monitor employer adherence to the terms

of the applicable collective bargaining agreement (“CBA”).


1
   Unless otherwise noted, the facts set forth herein are
undisputed and drawn from the parties’ Statements of Undisputed
Facts submitted pursuant to Local Civil Rule 7(h). Plaintiff,
proceeding pro se, failed to file a “concise statement” that
sets forth “all material facts to which it is contended that
there exists a genuine issue necessary to be litigated” as
required by Local Civil Rule 7(h)(1). Because of the leniency
afforded pro se plaintiffs, the Court looks to Plaintiff’s
“Summary of Events to Support Motion of Opposition” as his
“concise statement” of facts in dispute. See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (pleadings of pro se plaintiffs are
subject to less stringent standards than those of trained
attorneys).

                                  - 2 -
      Master   and    Union    are   parties      to    a    CBA    effective       as   of

September    28,   2010.    Master     Ex.   4.   The       CBA    contains    numerous

provisions     that   govern    pay,    working        hours      and   conditions       of

work, the imposition of disciplinary action by the employer, and

the   resolution      of   workplace     disputes        through        a   three    step

grievance process. 2 Id.

      In May 2010, Kornegay failed a drug test conducted by an

independent     laboratory     retained      by   Master.          Master    and    Union

claim that Kornegay subsequently was fired, and that he was only

reinstated after Union’s intervention on his behalf. 3 Master and

Union further claim that Master agreed to reinstate Kornegay


2
    In Step 1 of the process, the grievant is to reduce the
grievance into writing and submit it to his or her supervisor
within five workdays of the event giving rise to the grievance.
Master Ex. 4, CBA Section 3. A meeting, attended by the grievant
and representatives of the union and company, is to be arranged
within ten workdays of the employer’s receipt of the written
grievance. Id. The employer is required to issue its written
response to the grievance within ten workdays after the Step 1
meeting. Id. In Step 2 of the process, a meeting is to be
arranged within ten workdays after the employer’s response to
the Step 1 meeting. The Step 2 meeting is to be attended by the
grievant and representatives of the union and employer. Id. If
the grievance is not satisfactorily settled after the Step 2
meeting, the grievance may proceed to Step 3. In Step 3 of the
process, the Union may refer the grievance to arbitration. Id.
3
  Kornegay disputes this contention, claiming that he “was never
cancelled, reprimanded or fired for the error.” Opp’n at 2.
This factual dispute is not material to the issue of Union’s
duty of fair representation.


                                       - 3 -
with the understanding that he would be subjected to unannounced

and   unlimited     random    drug    testing    at    the   discretion       of   his

supervisors and managers at the HUD worksite.

      On or about February 24, 2011, Kornegay filed a grievance

claiming that he was entitled to a paid ½ hour lunch period,

which    was    duty-free    and    incorporated      into   his   6½   hour   work-

shift. Master denied the grievance and explained that, under the

CBA, Kornegay was not entitled to be compensated by Master for

the ½ hour lunch period.

        On March 10, 2011, Master asked Kornegay and several other

security officers to submit to a worksite drug test. The drug

test was to be conducted by the independent laboratory used by

Master. Kornegay refused to provide a sample for the drug test

and was terminated on that same day. 4 All of the other security

officers       complied   with     Master’s    directive.     Several    of    those

other security officers were terminated at the same time because

of positive drug tests.             Kornegay claims that he was targeted




4
  Kornegay does not dispute that               he refused to provide Master
with a sample for the drug test,              but he claims that on the day
of his termination, he “proceeded             to the regular laboratory for
testing receiving negative results            for drug use.” Opp’n at 4.


                                       - 4 -
for the drug test in retaliation for filing the unpaid lunch

break grievance. 5

     On March 22, 2011, nearly two weeks after his termination,

Kornegay     met     with       Union’s      then-president,          Ruthie      Rouse

(“Rouse”), at the Union office to discuss his termination. Rouse

explained to Kornegay that his refusal to take the drug test at

the worksite was grounds for immediate termination under the

CBA. Rouse advised Kornegay that he should submit to a hair

follicle drug test at an independent laboratory, the results of

which   Union     would   use    in   its    efforts    to   convince       Master   to

reinstate    Kornegay. 6    Kornegay        refused    to    submit    to   the   hair

follicle drug test, explaining that to do so would “defeat[] the

complaint    of    excessive     testing.”     Opp’n    at    5.   Rouse     informed

Kornegay that Union would not assist him without an independent

drug test.

     Neither Kornegay nor Union filed a grievance related to

Kornegay’s termination.


5
  Master disputes this contention, claiming that Kornegay was
randomly selected for the drug test.       As discussed, infra,
Master’s motivation for requesting the drug test is not directly
relevant to the issue of whether Union breached its duty of fair
representations in connection with Kornegay’s termination.
6
  Kornegay claims that he “offered Ms. Rouse the negative drug
test results from the test conducted on the day he was
terminated, [but] she refused to [accept] it.” Opp’n at 4-5.

                                       - 5 -
      B.   Procedural Background

      On April 21, 2011, Plaintiff filed his Complaint in the

Superior Court of the District of Columbia [Dkt. No. 1, Ex. A].

The   action    was    docketed    in    that    court   as    Case       No.   2011    CA

003082B.   On    May   31,    2011,     Master   removed      the    case       from   the

Superior Court of the District of Columbia to this Court. On

June 1, 2011, Master filed its Answer to the Complaint [Dkt. No.

6]. On June 7, 2011, Union filed its Answer to the Complaint

[Dkt. No. 9].

      On June 28, 2011, Plaintiff filed his Amended Complaint

[Dkt. No. 13]. On July 5, 2011, Master filed its Answer to the

Amended Complaint [Dkt. No. 16]. On July 14, 2011, Union filed

its Answer to the Amended Complaint [Dkt. No. 17].

      On August 30, 2012 Master and Union filed their Motions for

Summary Judgment [Dkt. Nos. 46 and 47]. On October 17, 2012,

Plaintiff filed his Opposition to those Motions [Dkt. No. 50].

On October 26, 2012, Union filed its Reply in Support of its

Motion for Summary Judgment [Dkt. No. 52]. And on November 2,

2012,   Master    filed      its   Reply   in    Support      of    its    Motion      for

Summary Judgment [Dkt. No. 53].




                                        - 6 -
II.    STANDARD OF REVIEW

  Summary judgment should be granted only if the moving party

has shown that there are no genuine issues of material fact and

that the moving party is entitled to judgment as a matter of

law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d

989, 991 (D.C. Cir. 2002). “A fact is material if it ‘might

affect the outcome of the suit under the governing law,’ and a

dispute about a material fact is genuine ‘if the evidence is

such   that   a   reasonable   jury    could   return   a   verdict   for   the

nonmoving party.’” Steele v. Schafer, 535 F.3d 689, 692 (D.C.

Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986)).

  The moving party bears the initial burden of demonstrating the

absence of genuine issues of material fact. See Celotex, 477

U.S. at 323. In determining whether a genuine issue of material

fact exists, the Court must view all facts in the light most

favorable to the non-moving party. See Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Keyes v.

Dist. of Columbia, 372 F.3d 434, 436 (D.C. Cir. 2004).

  The non-moving party's opposition, however, must consist of

more than mere unsupported allegations or denials; rather, it



                                      - 7 -
must   be   supported   by   affidavits     or   other    competent    evidence

setting forth specific facts showing that there is a genuine

issue for trial. See Fed.R.Civ.P. 56(c)(1); Celotex, 477 U.S. at

324. “The mere existence of a scintilla of evidence in support

of the [non-movant]'s position will be insufficient; there must

be evidence on which the jury could reasonably find for the

[non-movant].” Anderson, 477 U.S. at 252.

   Where, as here, a plaintiff is proceeding pro se, “the Court

must take particular care to construe the plaintiff's filings

liberally,    for   such     [filings]    are    held    ‘to   less   stringent

standards than formal pleadings drafted by lawyers.’” Cheeks v.

Fort Myer Constr. Co., 722 F. Supp. 2d 93, 107 (D.D.C. 2010)

(quoting Haines v. Kerner, 404 U.S. 519, 520–21 (1972)).

III. ANALYSIS

       Kornegay claims that Master breached the CBA by failing to

pay him for his daily lunch period, ordering him to submit to

drug tests “outside of the CBA requirements,” and terminating

him because he requested payment of his wages in full. Complaint

¶¶ 7-9. Kornegay further claims that Union breached its duty of

fair representation by failing to take reasonable and proper

action with respect to his grievance against Master for payment

of wages in full and his termination. Id. ¶¶ 10-13.



                                    - 8 -
     Master and Union argue that they are entitled to judgment

as a matter of law because Union did not breach its duty of fair

representation with respect to either Kornegay’s unpaid lunch

period grievance or his termination. Union further argues that

this action is barred because Kornegay failed to exhaust his

remedies under the CBA and Union’s Constitution and By-Laws.

     A.     Governing Legal Principles

     This matter involves a “hybrid” claim under § 301 of the

NLRA comprising two distinct causes of action: one against Union

for breach of the duty of fair representation and one against

Master    for    breach        of    contract.      DelCostello        v.    Int’l      Bhd.    Of

Teamsters,       462      U.S.      151,     164    (1983);     Gwin    v.    Nat’l         Marine

Engineers       Beneficial          Ass’n,    966    F.   Supp.   4,     7   (D.D.C.         1997)

(“Plaintiff’s         §     301/fair       representation       action       is    a    ‘hybrid’

suit comprising two causes of action”).

     In    order       to      prevail     against     either     Defendant,           Plaintiff

must prove both parts of the hybrid claim, as the two parts are

“inextricably          interdependent.”            United     Parcel     Serv.,        Inc.    v.

Mitchell,       451       U.S.      56,    66-67      (1981).     “The       duty      of     fair

representation            is     addressed          first,      because       it        is     the

indispensable predicate to the suit against the employer.” Gwin,

966 F. Supp. at 7 (internal quotation marks omitted); Noble v.



                                              - 9 -
U.S. Postal Serv., 537 F. Supp. 2d 210, 216 (D.D.C. 2008) (“The

Court must initially determine the threshold issue of whether a

bargaining      representative        has     breached       its     duty     of      fair

representation before it can address the merits of plaintiff’s

breach of contract claim”).

      A union has an obligation “to serve the interests of all

members   without      hostility      or    discrimination         toward      any,    to

exercise its discretion with complete good faith and honesty,

and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171,

177   (1967).    A     union    is    entitled        to    “great    deference         in

performing its representational duties.” Gwin, 966 F. Supp at 7;

Airline Pilots Ass’n v. O’Neill, 499 U.S. 65, 78 (1991) (“Any

substantive     examination     of    a     union's    performance       []    must     be

highly    deferential,         recognizing       the        wide     latitude         that

negotiators     need     for    the       effective        performance        of   their

bargaining responsibilities”).

      A union breaches its duty of fair representation only when

its conduct toward a member of the collective bargaining unit is

“arbitrary, discriminatory, or in bad faith.” Vaca, 386 U.S. at

190. A union will be deemed to have acted in bad faith “when

there is substantial evidence of ‘fraud, deceitful action, or




                                      - 10 -
dishonest conduct.’” Gwin, 966 F. Supp. at 7 (quoting Humphrey

v. Moore, 375 U.S. 335, 348 (1964).

     In considering duty of fair representation complaints that

are premised on assertions of arbitrary action, courts will find

a breach of that duty “only if the union’s action can be fairly

characterized as so far outside a wide range of reasonableness

that it is entirely irrational.” Thomas v. N.L.R.B., 213 F.3d

651, 656 (D.C. Cir. 2000) (internal quotation marks omitted).

“Mere negligence is insufficient to establish that a union acted

arbitrarily.” Noble, 537 F. Supp. 2d at 216.

     B.     Union Did Not Breach Its Duty of Fair Representation
            in Relation to Kornegay’s Unpaid Lunch Break Grievance

     Defendants argue that “Union did not have a duty of fair

representation      to   pursue   the      grievance   filed     by   Kornegay

regarding unpaid break time because the grievance was completely

without merit.” Master Mot. for Summ. J. at 8; see Union Mot.

for Summ. J. at 6-7. Union further argues that the claim is

barred    because   “Kornegay     failed    or   declined   to    pursue   his

grievance beyond Step 1 of the grievance procedure as expressly

required by the CBA.” Union Mot. for Summ. J. at 7. In his

Opposition, Plaintiff essentially limits his response to arguing




                                   - 11 -
the    merits   of    his   grievance,    rather     than   addressing    Union’s

arguments. 7

       The uncontroverted facts in this action make it clear that

Union did not breach its duty of fair representation in relation

to the unpaid lunch break grievance. It is undisputed: (1) that

Plaintiff filed a grievance claiming that he was entitled to a

paid    lunch   period,     Union   Ex.   1;   (2)   that   Master     denied   the

grievance at Step 1 and explained its position, Union Ex. 3;

Kornegay Master Dep. Tr. 42:11-43:5; (3) that Plaintiff failed

to     pursue   his    grievance     beyond    Step    1    of   the    grievance

procedure; and (4) that Union considered the matter and declined

to file a grievance at the company level, Rouse Decl. ¶ 4; Opp’n

at 9 (email showing consideration of the grievance).

       The fact that Plaintiff believes that his grievance has

merit and that Union should have pursued it beyond Step 1 of the

grievance process is not controlling. See Plain v. AT&T Corp.,

424 F. Supp. 2d 11, 21 n.12 (D.D.C. 2006) (“[A] union does not

breach its duty of fair representation merely because it does

not process every grievance to the final step of grievance or

7
  Pro se Plaintiff’s Opposition consists of a chronological
“Summary of Events to Support Motion of Opposition,” to which he
attaches a series of emails, drug test results and other
documents in no apparent order.         He never explains the
relationship   between  those   items  and   the   arguments  of
Defendants.

                                     - 12 -
arbitration       procedures”).        The    relevant      inquiry     is     whether

Union’s decision not to pursue the grievance was “arbitrary,

discriminatory, or in bad faith.” Vaca, 386 U.S. at 190.

      Given   that      Plaintiff      does   not    even     argue   that     Union’s

decision was arbitrary, and that the Court is unable to identify

a single provision of the CBA that supports Plaintiff’s wage

payment    claim,    Union’s     decision      not   to     pursue    the    grievance

beyond Step 1 cannot be “fairly characterized as so far outside

a wide range of reasonableness that it is entirely irrational.”

Thomas, 213 F.3d at 656 (internal quotation marks omitted); see

Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 45-46 (1998)

(stating that a union has “room to make discretionary decisions

and choices, even if those judgments are ultimately wrong”).

Consequently, Union’s decision cannot be deemed arbitrary.

        Moreover, Plaintiff does not allege that Union’s decision

was discriminatory or that Union acted in bad faith, nor has he

put     forward   any    evidence      of     “fraud,     deceitful     action,     or

dishonest conduct.” Humphrey, 375 U.S. at 348. Accordingly, the

Court    concludes      that   Union    did   not    breach    its    duty    of   fair

representation with respect to the unpaid lunch break grievance.




                                       - 13 -
     C.    Union Did Not Breach Its Duty of Fair Representation
           in Relation to Kornegay’s Termination

     Defendants next argue that Union satisfied its duty of fair

representation        in        relation     to     Plaintiff’s      termination     by

offering to intervene on Plaintiff’s behalf if he submitted to a

hair follicle drug test which was negative. Union Mot. for Summ.

J. at 8-9; Master Mot. for Summ. J. at 9. Plaintiff does not

directly   respond         to    Defendants’      argument.       Instead,    Plaintiff

contends   that   Master           singled    him     out   for    drug    testing   in

retaliation     for        filing    the     unpaid     lunch      break     grievance.

Plaintiff further contends that he refused to submit to the hair

follicle drug test as requested by Union because to do so would

have “defeated the complaint of excessive testing.” Opp’n at 3-

5.

     The uncontroverted facts in this action make it clear that

Union did not breach its duty of fair representation in relation

to Plaintiff’s termination. Even assuming that Plaintiff could

establish that Master improperly subjected him to a drug test,

and assuming further that Master did not have just cause to

terminate him for refusing to submit to that drug test, summary

judgment would be justified. Plaintiff has failed to proffer any

evidence   at   all        that    would     support    a   finding       that   Union’s




                                           - 14 -
refusal   to   pursue   Plaintiff’s   reinstatement   was   “arbitrary,

discriminatory, or in bad faith.” Vaca, 386 U.S. at 190.

     The undisputed evidence establishes that Union expressed a

willingness to pursue Plaintiff’s reinstatement provided that he

submit to a hair follicle drug test. The undisputed evidence

also establishes that Plaintiff refused Union’s request that he

submit to such a drug test.

     Union assessed Plaintiff’s situation, including his prior

failed drug test 8 and his refusal to submit to the drug test that

resulted in his termination, and recommended a reasonable course

of action for pursuing his reinstatement. Given the context of

Plaintiff’s termination, it was far from “entirely irrational”

for Union to condition its pursuit of Plaintiff’s reinstatement

on his agreeing to undergo the hair follicle drug test, the

results of which Union could have presented to Master in order

to establish the absence of drugs in Plaintiff’s system. Thomas,

213 F.3d at 656. Accordingly, Union’s decision not to pursue

Plaintiff’s reinstatement after his refusal to cooperate with

its recommended course of action was not arbitrary and was well

within the “wide range of reasonableness” afforded to unions in

performing their representational duties. Id.; see Chauffeurs,

8
  As noted, supra, in May 2010, Plaintiff failed a drug test
conducted by an independent laboratory retained by Master.

                                - 15 -
Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 567-

68 (1990) (A union “has broad discretion in its decision whether

and how to pursue an employee’s grievance against an employer”).

     Moreover,        as    with     the     unpaid       lunch           break     grievance,

Plaintiff      does        not      allege        that        Union’s           decision      was

discriminatory or that Union acted in bad faith, nor has he put

forward any evidence of “fraud, deceitful action, or dishonest

conduct.”     Humphrey,      375     U.S.     at     348.       Therefore,          the    Court

concludes     that     Union        did     not     breach          its     duty     of      fair

representation with respect to Plaintiff’s termination.

     Having     determined          that     there       is    no     genuine        issue     of

material    fact       on     the     issue        of     Union’s          duty      of      fair

representation        and    that     Union       and     Master          are     entitled    to

judgment as a matter of law, the Court need not reach the issue

of whether Master breached the CBA.




                                           - 16 -
IV.   CONCLUSION

      Upon consideration of the Motions, Opposition, Replies, and

the entire record herein, and for the reasons set forth in this

Memorandum   Opinion,   the   Motions     for   Summary   Judgment   are

granted.




                                         /s/________________________
January ____, 2013                      Gladys Kessler
                                        United States District Judge

Copies to: attorneys on record via ECF




                               - 17 -
