               NOT RECOMMENDED FOR FULL TEXT PUBLICATION
                          File Name: 15a0644n.06

                                      Case No. 14–4194                              FILED
                                                                               Sep 18, 2015
                         UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT

MARK DRAGOMIER, et al.,                            )
                                                   )
       Plaintiffs-Appellants,                      )      ON APPEAL FROM THE UNITED
                                                   )      STATES DISTRICT COURT FOR
                                                   )      THE NORTHERN DISTRICT OF
       v.                                          )      OHIO
                                                   )
LOCAL 1112 UAW, et al.,                            )      OPINION
                                                   )
       Defendants-Appellees.                       )

Before: CLAY and SUTTON, Circuit Judges; and WATSON, District Judge. 

       MICHAEL H. WATSON, District Judge. Mark Dragomier and twenty-six other auto

workers at the General Motors Assembly Plant in Lordstown, Ohio (“Appellants”) appeal the

district court’s decision granting summary judgment to Appellees—General Motors (“GM”);

Appellants’ local union, Local 1112, International Union, United Automobile, Aerospace and

Agricultural Implement Workers of America (“Local 1112”); and International Union, United

Automobile, Aerospace and Agricultural Implement Workers of America (“UAW”)—in this

collective bargaining agreement case. For the following reasons, we must affirm.

                                        I.     FACTS

       Appellants are twenty-seven employees of the GM Assembly Plant in Lordstown, Ohio

(“Lordstown Plant”).   Appellees are Local 1112, UAW, and GM.           Local 1112 and UAW

(collectively, “the Unions”) are labor organizations and the bargaining representatives of

GM employees working at the Lordstown Plant.

 The Honorable Michael H. Watson, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 14-2013, Dragomier, et al. v. Local 112 UAW


        A. The 2007 Collective Bargaining Agreement

        Prior to 2007, GM had been experiencing substantial financial losses. To reduce labor

costs, GM considered outsourcing “non-core” production jobs.1 However, the Unions strongly

opposed the outsourcing of jobs.     Thus, GM and UAW (together, the “National Parties”)

engaged in extensive negotiations to prevent outsourcing union jobs and enable GM to avoid

financial ruin.

        The National Parties’ negotiations ultimately resulted in GM abandoning its outsourcing

plan and introducing a new two-tier wage structure whereby employees newly hired to perform

non-core jobs would be paid less than employees performing core jobs, but the work for non-

core jobs would not be outsourced. Those negotiations were memorialized in the Memorandum

of Understanding UAW-GM Entry Level Wage & Benefit Agreement (“Entry Level MOU”),

which was incorporated in the 2007 Collective Bargaining Agreement (“CBA”).

        The Entry Level MOU states that it applies to “all entry level employees at all GM

facilities covered by the UAW-GM National Agreement” and defines entry level employees as

“regular employees hired on or after the date of” the Entry Level MOU. R. 21-4 at 277. It is

undisputed that the Entry Level MOU did not apply to Appellants while they were temporary

employees.

        Union members expressed dissatisfaction with the Entry Level MOU because it permitted

non-core jobs, which were considered preferred jobs, to be performed by lower-earning, entry-

level employees when senior union members desired those jobs. After receiving backlash, local

unions, including Local 1112, raised concern over the new two-tier wage structure and Entry



1
 “Non-core” jobs generally encompassed those production positions that did not involve
working on the vehicle assembly line, and “core” jobs were positions that entailed assembly-line
work. See R. 79-34 at 22.
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No. 14-2013, Dragomier, et al. v. Local 112 UAW


Level MOU. The National Parties thereafter negotiated two documents that addressed these

concerns: the Core/Non-Core and Entry Level Job Assignment Clarification dated March 3, 2008

(“2008 Clarification”)    and the     Core/Non-Core Agreement         dated March        28, 2008

(“2008 Agreement”).

       B. Appellants’ Employment with GM

       Prior to April 30, 2007, all Appellants were temporary employees who performed core

functions.   Temporary employees had no guarantee of continued employment.                  Indeed,

Appellants were either laid off or let go between May 1, 2007 and November 13, 2007. After the

effective date of the 2007 CBA, Appellants were re-hired as temporary employees. The Entry

Level MOU did not apply to Appellants when they were re-hired as temporary employees in

2007; rather, they were properly paid traditional wages.

       In June 2008, after the National Parties negotiated the 2008 Clarification and

2008 Agreement, GM offered Appellants positions as regular, entry level employees.

Local 1112 Shop Chairmen Ben Strickland (“Strickland”) testified that he told union officials to

share with Appellants that these positions would be paid the lower, entry level wage as opposed

to the traditional wage Appellants were receiving as temporary employees.                Appellants

acknowledged they were told they would be paid lower wages, but they testified that union

officials promised them the lower pay would be only temporary. Union officials apparently told

Appellants that GM would very shortly be hiring entry level employees for a third shift and that

the hiring of such employees would trigger the provisions of the 2008 Clarification and 2008

Agreement, bumping Appellants up to traditional wages.           In reliance on those promises,

Appellants accepted the regular position as entry level employees. Despite the assurances, GM

never hired a third shift, and thus, Appellants were never moved to traditional wages.



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No. 14-2013, Dragomier, et al. v. Local 112 UAW


       Between July and December 2008, Strickland organized at least three meetings between

various Appellants and union officials to discuss Appellants’ dissatisfaction with being paid

entry level wages.

       Although Appellants contend that union officials failed to investigate their grievance,

Strickland testified that he investigated the situation by speaking with UAW and GM officials.

UAW officials informed Strickland that he did not have any grounds under the 2007 CBA to

return Appellants to the traditional wages they had received as temporary employees. Strickland

testified that he did not file a grievance on behalf of Appellants because he found, after talking

with GM and UAW officials, that Appellants did not have a meritorious grievance.

       UAW’s constitution allows for a three-level appeal procedure when a union member

believes that union officials wrongfully declined to file a requested grievance. First, a grievant

appeals to the local union’s membership. If the grievant’s request is denied, the grievant then

appeals to the International Executive Board (“IEB”) for review. If the IEB upholds the refusal

to file a grievance, then the grievant may appeal to the Public Review Board (“PRB”), which is

composed of independent labor law experts.

       Appellant Mark Dragomier initiated this process on behalf of himself and his fellow

Appellants. Local 1112, the IEB, and the PRB each agreed with Strickland’s decision to not file

a grievance.

       After exhausting the Unions’ appeal process, Appellants filed a complaint in the United

States District Court for the Northern District of Ohio against Local 1112, UAW, and GM.

Plaintiffs asserted a hybrid § 301 action pursuant to 29 U.S.C. § 185 against all three Appellees

and a separate claim for breach of the duty of fair representation pursuant to 29 U.S.C. § 159

against the Unions.



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No. 14-2013, Dragomier, et al. v. Local 112 UAW


       The district court granted summary judgment to Appellees, finding that Appellants failed

to establish either a breach of the 2007 CBA or that the Unions breached their duty of fair

representation. Appellants appeal both findings.

                              II.     STANDARD OF REVIEW

       We review a district court’s grant of summary judgment de novo. 1st Source Bank v.

Wilson Bank & Trust, 735 F.3d 500, 502 (6th Cir. 2013) (citation omitted). “In deciding a

motion for summary judgment, this court views the factual evidence and draws all reasonable

inferences in favor of the non-moving party.” Id. (citation omitted). “To prevail, the movant

must show ‘there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)).

                                       III.   ANALYSIS

       Appellants assert a hybrid claim against GM and the Unions under § 301 of the Labor

Management Relations Act, 29 U.S.C. § 185, and a breach of the duty of fair representation

claim against the Unions under 29 U.S.C. § 159.

A. Section 301 Hybrid Claim

       “A hybrid § 301 suit implicates the interrelationship among a union member, his union,

and his employer.”     Garrish v. Int’l Union, United Auto., Aerospace & Agric. Implement

Workers of Am., 417 F.3d 590, 594 (6th Cir. 2005) (internal quotation marks and citation

omitted). It “involves two constituent claims: breach of a collective bargaining agreement by the

employer and breach of the duty of fair representation by the union.” Garrison v. Cassens

Transp. Co., 334 F.3d 528, 538 (6th Cir. 2003) (quoting Black v. Ryder/P.I.E. Nationwide, Inc.,

15 F.3d 573, 583 (6th Cir. 1994)). The two claims are interdependent—a plaintiff cannot




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No. 14-2013, Dragomier, et al. v. Local 112 UAW


succeed against either party unless he or she demonstrates violations by both parties.

Id. (citations omitted).

        Here, Appellants contend GM breached the CBA when it paid Appellants entry level

wages upon their hiring as permanent employees.          They further maintain that the Unions

breached their duty of fair representation by failing to file a grievance on Appellants’ behalf

based on that breach. Although the Unions certainly could (and should) have conducted a more

thorough investigation into this issue and taken the time to explain thoroughly to Appellants their

rationale for refusing to file a grievance, we ultimately find the Unions did not breach their

duties of fair representation by failing to file a grievance. Because the failure to prove a breach

of duty forecloses Appellants’ hybrid claim, we do not address whether GM breached the CBA.

        In order to prove a breach of the duty of fair representation, an employee must

demonstrate that the union’s actions or omissions during the grievance process were “arbitrary,

discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S 171, 190 (1967) (internal citations

omitted). In this case, Appellants do not assert that the Unions’ actions were discriminatory or in

bad faith; they contend only that the Unions acted arbitrarily. “[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 irrational.” Garrison, 334

F.3d at 528 (quoting Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991)). Neither

mere negligence nor ordinary mistakes, errors, or flaws in judgment suffice. Id. (citing United

Steelworkers of Am. v. Rawson, 495 U.S. 362, 372–73 (1990); Walk v. P*I*E Nationwide, Inc.,

958 F.2d 1323, 1326 (6th Cir. 1992)). Rather, a plaintiff must show the union’s actions were

“wholly irrational,” a standard that is described in terms of “extreme arbitrariness.” Id. at 538–

39 (quoting Black, 15 F.3d at 585).



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No. 14-2013, Dragomier, et al. v. Local 112 UAW


       “A union acts arbitrarily by failing to take a basic and required step.” Vencl v. Int’l

Union of Operating Eng’rs, Local 18, 137 F.3d 420, 426 (6th Cir. 1998) (internal citation

omitted). Moreover, “unions can unfairly represent members even when they act without bad

faith.” Id. (internal citation omitted). Thus, a union’s failure to file a grievance on its members’

behalf may constitute arbitrary behavior. See, e.g., Kelsey v. FormTech Indus., 305 F. App’x

266, 269 (6th Cir. 2008). That is, “a union may not ignore a meritorious grievance or process it

in a perfunctory fashion. Unions are not, however, obligated to prosecute grievances that they

find to be meritless.” Id. (internal quotation marks and citation omitted).

       As noted above, Appellants maintain that GM breached the CBA by improperly

classifying and compensating Appellants as entry level employees when GM hired them as

permanent employees in June 2008. They contend the Unions acted arbitrarily by failing to

investigate and file a grievance for this alleged breach. Specifically, Appellants argue: (1) the

Unions decided not to grieve Appellants’ claim without first conducting an investigation, and

(2) GM’s breach was so clear that a grievance was required.

       1. Failure to Investigate

       Appellants argue that the Unions acted arbitrarily in failing to file a grievance because

they failed to investigate Appellants’ claim that GM breached the CBA before declining to

grieve the issue. While the Unions’ actions in response to Appellants’ complaints were far from

laudable, the high standard in this case forces us to affirm. The record reflects that the Unions

conducted investigations sufficient to prevent a finding that the decision not to file a grievance,

which was based on those investigations, was “wholly irrational.”




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No. 14-2013, Dragomier, et al. v. Local 112 UAW


               a. UAW’s Investigation2

       Whether UAW conducted an investigation turns on the actions of two of its

representatives: Mike Grimes and John Mohan.

       Following Appellants’ hiring as permanent employees, Appellants complained to

Strickland, their local union representative, about the reduction in wages from traditional to entry

level. Strickland notified UAW national servicing representative Lee Jones, R. 79–30 at 160,

who in turn notified the assistant director of the GM department of UAW, Mike Grimes. R. 79-

34 at 8, 34, 36, 52. Grimes had been involved in the negotiations of the 2007 CBA, which he

had recently “come out of” at the time Jones notified him of the issue. R. 79-34 at 43.

Nevertheless, Grimes reviewed the relevant documents to “double-check” the entry-level hiring

process and concluded that GM’s actions did not constitute a breach. R. 79-34 at 36–48.

       John Mohan, regional UAW representative, also weighed in on GM’s alleged breach.

Upon Strickland’s request, Mohan attended a meeting with Strickland and members of the local

union. R. 79-33 at 39, 101. Mohan looked at the wage progression portion of the 2007 CBA on

the morning of the meeting, but he did not review any other relevant documents. R. 79-33 at 42.

At the meeting, he expressed his view that GM did not violate the CBA. R. 79-33 at 45–49.

Additionally, he and Strickland discussed Appellants’ concerns and tried to find a “loophole,”

R. 79-30 at 244, but they were unsuccessful.




2
 As an initial matter, UAW argues that Appellants’ claim must fail because: (1) they never asked
a UAW representative to file a grievance based on their classification and compensation as entry
level employees, and (2) that as an international union, UAW does not file grievances.
Appellants respond that despite the lack of a formal grievance request, UAW was aware of
Appellants’ claim, and they submit that although UAW does not file grievances, it can direct
local unions to do so. We need not address these arguments, as even assuming UAW knew of
Appellants’ claim and could direct Local 1112 to file a grievance, we find that the failure to do
so was not arbitrary.
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No. 14-2013, Dragomier, et al. v. Local 112 UAW


       This conduct by UAW officials reflects an investigation of Appellants’ claim. While the

evidence does not establish that Mohan conducted a comprehensive review of the CBA in an

effort to investigate the issue, it does show that he listened to the union members’ complaints and

discussed the issue with Strickland, even trying to find a loophole. More importantly, upon

being informed of Appellants’ complaints, Grimes, who was involved in the negotiation of the

2007 CBA, reviewed the Entry Level MOU and 2008 Agreement and concluded that GM did not

breach the CBA.3 Reviewing and/or discussing the Agreement’s language is an appropriate

response to a claim that GM violated that Agreement. Thus, while neither Mohan nor Grimes

conducted a lengthy investigation, they considered Appellants’ complaints and consulted the

relevant documents in attempting to determine their merits. Appellants’ claim that UAW’s

failure to direct Local 1112 to file a grievance was arbitrary because it was not based on an

adequate investigation therefore fails.

               b. Local 1112’s Investigation

       Whether Local 1112 conducted an investigation turns on the actions of Strickland.

       There appears to be a factual dispute regarding whether Strickland reviewed the relevant

documents and came to his own, independent conclusion that GM’s actions did not violate the

CBA or whether he relied on others’ representations that there was no breach. While Strickland

generally references in his deposition testimony that he “reviewed everything” before

determining whether to file a grievance, R. 79-30 at 151, 241, 260, Local 1112 explicitly points

out that Strickland did not testify that he had the 2008 Clarification while he was making the

decision, that there is no evidence that he had the 2008 Agreement before UAW provided it to



3
  Grimes’s review of these documents belies Appellants’ argument that any “secret deal”
between Grimes and Schwartz to hire Appellants as permanent, entry level employees prevented
UAW from seriously investigating their claim.
                                                9
No. 14-2013, Dragomier, et al. v. Local 112 UAW


the PRB, and that Strickland testified that he could not recall when he first saw the

2008 Agreement. Br. 46–47 (citing R. 79-30 at 196).

       It is undisputed, however, that Strickland discussed the lower pay with his

UAW servicing representatives.       R. 79-30 at 160 (Strickland notified Jones, his national

UAW servicing representative, of Appellants’ concerns); R. 79-30 at 244 (Strickland discussed

the issue with Mohan, his regional UAW servicing representative, and tried to find a loophole).

It is unclear whether Strickland spoke with Grimes directly.          See R. 79-34 at 53 (Grimes

testifying that he did not speak with Strickland directly); R. 79-30 at 160 (Strickland testifying

that he spoke to Grimes). It is undisputed, however, that Grimes communicated his opinion to

Jones, R. 79-34 at 37, who spoke with Strickland, R. 79-30 at 191 (“I had talked to my regional

servicing rep. I’ve talked to my national servicing rep. Turned around and asked me if there was

any angle that they may be seeing that I didn’t see.”). Strickland then relied on the opinions of

these UAW representatives that GM had not breached the CBA. R. 79-30 at 76, 178, 190–91.

       In addition to speaking with UAW representatives, Strickland held numerous individual

and group meetings with Appellants to discuss their concerns and keep them apprised of the

situation. R. 75 at ¶¶ 48, 132, 197, 227; R. 79-30 at 239, 243. While Strickland ultimately

decided not to file a grievance, he explained to Appellant Dragomier the process of appealing his

decision not to grieve the issue. R. 79-30 at 255–56.

       This evidence demonstrates that although Strickland did not conduct the most thorough

investigation, no rational trier of fact could find that he failed to conduct an investigation at all.

He met with Appellants to discuss their concerns and contacted his regional and national

servicing representatives about the issue, who agreed that GM had not breached the CBA. He

even brainstormed with Mohan to attempt to find a loophole in the CBA that would entitle



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No. 14-2013, Dragomier, et al. v. Local 112 UAW


Appellants to traditional wages but ultimately concluded there was none. Appellants themselves

recognize that Strickland “did everything but file a grievance.” App. Br. 49. Accordingly,

Appellants’ claim that Local 1112’s failure to file a grievance was arbitrary because it was not

based on an adequate investigation fails.4

       2. Obviousness of the Breach

       Appellants next argue that given the clear language of the CBA and subsequent clarifying

documents, GM’s actions were a clear violation of the CBA such that the Unions’ failure to file a

grievance was arbitrary. The Unions maintain that Appellants’ claim for breach of the CBA is

meritless, and therefore, their decision to not file a grievance was sound.

       To determine whether GM clearly breached the CBA, we must first determine what the

CBA required. “In construing a collective-bargaining agreement, courts apply traditional rules

of contract interpretation as long as their application is consistent with federal labor policies.”

Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am. v. General Motors, No.

14-1019, 2015 WL 2239507, at *4 (6th Cir. May 14, 2015) (internal quotation marks and citation

omitted); cf. Operating Eng’rs Local 324 Health Care Plan v. G & W Const. Co., 783 F. 3d

1045, 1051 (6th Cir. 2015) (internal citation omitted). “‘Where the words of a contract in

writing are clear and unambiguous, its meaning is to be ascertained in accordance with its plainly

expressed intent.’” G & W Const., 783 F. 3d at 1051 (citation omitted); see also Int’l Union,

United Auto., Aerospace & Agr. Implement Workers of Am., 2015 WL 2239507 at *4. “[I]f the

collective bargaining agreement is ambiguous . . . we may consider extrinsic evidence of the



4
   The Unions emphasize that Strickland and Grimes attempted to convince GM to grant
Appellants traditional wages despite the language of the CBA. While such efforts are an
example of the Unions’ advocacy on behalf of Appellants, they are irrelevant to whether the
Unions conducted an investigation of GM’s alleged breach before deciding not to grieve the
issue.
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No. 14-2013, Dragomier, et al. v. Local 112 UAW


parties’ intent at the time of execution.” Int’l Union, United Auto., Aerospace & Agr. Implement

Workers of Am., 2015 WL 2239507 at *5 (internal quotation marks and citation omitted).

       This case turns on the following documents: the 2007 CBA, the Entry Level MOU

incorporated therein, the 2008 Clarification, and the 2008 Agreement. See Plunkett v. Smurfit-

Stone Container Corp., 247 F. App’x 604, 607 (6th Cir. 2007) (“‘A collective bargaining

agreement is not limited solely to the specific provisions of the basic labor contract formally

executed by the parties, but it may also include . . . written side agreements and oral

understandings.’” (quoting Inlandboatmens Union of the Pacific v. Dutra Grp., 279 F.3d 1075,

1079 (9th Cir. 2002)).

       We begin with paragraph ninety-eight of the 2007 CBA, which provides in relevant part:

       [A]n employee who is laid off prior to acquiring seniority and who is re-employed
       at that plant within one year from the last day worked prior to layoff shall receive
       a rate upon re-employment which has the same relative position to the maximum
       base rate of the job classification as had been attained by the employee prior to
       layoff. Upon such re-employment, the credited rate progression period of an
       employee’s prior period of employment at that plant shall be applied toward their
       rate progression to the maximum base rate of the job classification.

R. 75-2 at PageID # 3904.

       Next, the Entry Level MOU discusses a two-tier wage system that defines a separate

wage progression for entry level employees. By its own terms, the MOU explicitly applied to all

entry level employees, whom it defined as regular employees hired into non-core work functions

on or after the date of the MOU. R. 21-4 at PageID # 916. As such, the MOU did not apply to

temporary employees.

       The 2008 Clarification then discusses how GM will implement the entry level tier of

wages. It begins by stating that the parties to the CBA understand that “[t]ransitioning the

workforce may result in employees working together as either an entry level or non entry level



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No. 14-2013, Dragomier, et al. v. Local 112 UAW


employee.” R. 75-3 at PageID # 4552. It then outlines the process by which a plant would

transition into the two-tier wage structure. First, seniority employees were provided a time

period during which they would “remain eligible to exercise their seniority rights for non-core

jobs.” Id. The National Parties would then “determine the initial number of non core jobs at

each facility[,]” after which the plant would exhaust the “existing hierarchy for job placement of

seniority employees.” Id. At that point, GM was permitted to “hire an entry level employee(s)

to fill the opening(s) up to the number of non core jobs recorded at the facility.” Id. The 2008

Clarification further provided that during the transition period, “the assignment of entry level

and/or traditional employees to core and/or non core jobs [would] be determined by the local

occupational grouping agreement.” Id.

       The 2008 Agreement also addresses the implementation of the new wage system.

The Agreement explicitly states that it is “applicable only to those Non-Core and Temporary

Employees hired into other-than-skilled positions.” R. 75-4 at Page ID # 4554. It provides that

the initial number of non-core employees that may be hired at each plant is based upon the

number of non-core work functions identified at each plant. Id.

       Appellants assert that the plain language of these documents counsels a finding that

GM breached the CBA by hiring and compensating them as entry level employees.

Their argument is as follows. None of the relevant documents explicitly state that all new

permanent hires would be hired at entry level regardless of the core or non-core nature of their

position. The definition of “entry level employee” therefore remained the definition articulated

in the Entry Level MOU—regular employees, hired after a certain date, who perform non-core

jobs. It is undisputed that the 2007 MOU, in this formulation, does not apply to Appellants

because they did not perform non-core jobs. If the 2007 MOU does not apply to Appellants, it



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No. 14-2013, Dragomier, et al. v. Local 112 UAW


follows that the 2008 Clarification and the 2008 Agreement—which address the implementation

of the 2007 MOU—likewise do not apply to Appellants. Accordingly, Appellants should have

been hired and compensated in accordance with the wage progression identified in paragraph

ninety-eight of the 2007 CBA.

       Appellants argue that given that the plain language so clearly required GM to hire

Appellants according to paragraph ninety-eight, GM’s failure to do so constituted a clear breach

of the CBA such that the Unions’ failure to file a grievance based on this claim was arbitrary, or

in other words, “wholly irrational.” While we sympathize with Appellants’ treatment in this case

by both GM and the Unions, we disagree.

       Appellants are correct that the Entry Level MOU explicitly states that it only applies to

employees performing non-core jobs.        But the argument that the 2008 Clarification and

2008 Agreement do not somehow modify that definition is unavailing. As the district court

pointed out, the language of the 2008 Clarification is inconsistent with Appellants’ position that

the definition of “entry level employee” remains an employee who performs non-core work.

Specifically, the 2008 Clarification states: “As discussed in the Entry Level Wages and Benefits

Subcommittee of those 2007 National Negotiations, it was clearly understood by the parties that:

‘Transitioning the workforce may result in employees working together as either an entry level

or non entry level employee’. [sic]” R. 75-3 at PageID # 4452 (emphasis in original). The

2008 Clarification then outlines the process by which a plant would transition into the two-tier

wage structure and states that “[d]uring the transition period . . . the assignment of entry level

and/or traditional employees to core and/or non core jobs will be determined by the local

occupational grouping agreement.” Id.




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No. 14-2013, Dragomier, et al. v. Local 112 UAW


       We agree with the district court that such language would be arguably superfluous if the

definition of “entry level employee” remained limited to those employees performing only non-

core work. For example, if GM’s cost-cutting incentives led it to fill all non-core jobs with entry

level employees and entry level employees performed only non-core work, entry level and

traditional employees would not work together. Further, the use of “and/or” in the second-

mentioned provision suggests that both entry level and traditional employees can be assigned

core functions. In light of the language in the 2008 Clarification, the fact that the clarifying

documents do not explicitly change the definition of “entry level employee” does not mean the

definition remained. Rather, the definition is ambiguous, at best, for Appellants. In any event, it

was not “so clear” that GM breached the CBA that the Unions’ decision not to file a grievance

on that ground was arbitrary.

       In sum, Appellants have failed to prove that the Unions breached their duty of fair

representation by declining to file a grievance on their behalf. This failure dooms the remainder

of their hybrid claim under § 301.

B. Unions’ Breach of Duty of Fair Representation Under 29 U.S.C. § 159(a)

       In addition to their hybrid § 301 claim, Appellants assert against the Unions an

independent breach of the duty of fair representation claim under § 159(a) and 28 U.S.C. § 1337.

Am. Compl. ¶ 1. Appellants’ grounds for this claim are: (1) the Unions’ failure to investigate

and file grievances on Appellants’ behalf regarding GM’s alleged breach of the CBA; (2) the

Unions’ changing justification for their refusal to file a grievance; and (3) the Unions’ failure to

provide the core/non-core documents during the first two years of the internal appeals process.

       Appellants’ claim for breach of the duty of fair representation based on the Unions’

failure to investigate and file a grievance relating to GM’s breach of the CBA is based on the



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No. 14-2013, Dragomier, et al. v. Local 112 UAW


same conduct discussed above.        Indeed, Appellants’ arguments for breach under § 159(a)

virtually mirror the arguments made in conjunction with their § 301 claim. The district court

therefore found that, because Appellants failed to establish a breach of the duty of fair

representation for purposes of § 301, they also failed to establish a breach of the duty of fair

representation for purposes of § 159(a).

       The district court erred, however, in even considering Appellants’ § 159(a) claim on this

ground, as it did not have authority to do so. Because this claim is based on GM’s alleged

breach and the Union’s failure to file a grievance, it is essentially a hybrid § 301 claim, and there

was no authority for the district court to consider it under §159(a). See Vencl v. Int’l Union of

Operating Eng’rs, Local 18, 137 F.3d 420, 424–25 (6th Cir. 1998).

       Whether the Unions’ changing justifications for their decisions not to file a grievance or

their alleged withholding of documents during the internal appeal process are so closely related

to GM’s alleged breach of the CBA so as to mandate their consideration only as part of a § 301

claim is a much closer issue. Nonetheless, because these actions do not rise to the level of a

breach of the Unions’ duties of fair representation, it is not necessary to determine whether these

arguments should have been considered only as part of the § 301 claim.

       With respect to Appellants’ second argument, Appellants fault the Unions for changing

their justification for refusing to file a grievance. Appellants assert that, although the Unions

have consistently argued GM did not breach the CBA, the Unions’ rationale for why GM did not

breach the CBA has changed over time. Throughout the entire internal appeals process, the

Unions took the position that GM had been mistakenly paying Appellants traditional wages

when it re-hired them as temporary employees in November 2007 and that GM merely caught its

mistake when it hired them permanently in June 2008. It was not until Appellants filed the



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No. 14-2013, Dragomier, et al. v. Local 112 UAW


instant suit that the Unions took the position that GM did not breach the CBA because the

2008 Clarification and 2008 Agreement modified the 2007 MOU to require all new permanent

hires to be compensated as entry level employees regardless of whether they performed core or

non-core jobs. Appellants’ ultimate argument is somewhat unclear, however. They appear to

argue first that the Unions’ change in rationale demonstrates that the Unions breached their duty

of fair representation by not performing an adequate investigation before deciding not to file a

grievance, much the way evidence of pretext supports a finding of disability in the employment

context. This argument fails, however, given our finding above that the Unions’ investigation

was not wholly irrational.

       Next, Appellants appear to argue that the change in rationale is itself a breach of the duty

of fair representation. The fact that the Unions did not once offer their current justification for

refusing to file a grievance throughout the entire two-year internal appeals process further lends

credence to our notion that Appellants were not treated as fairly as they should have been

throughout this entire process. Again, however, Appellants have failed to show that the Unions’

actions rise to the level of wholly irrational conduct, as they do not direct us to any authority for

the proposition that a change in rationale is in and of itself a breach of the duty of fair

representation, especially where the ultimate rationale is legally supportable.

       Appellants’ third argument, the failure to provide documents during the internal appeals

process, also fails. First, the argument is too perfunctory to be adequately addressed. Appellants

mention several times that the Unions failed to produce the 2008 Agreement and

2008 Clarification until just before the PRB hearing, App. Br. 39, 46, and 54, but they do not

articulate an argument under § 159 except to say “Both the withholding of the Core/Non-Core

documents from appellants and the constant change in justifications . . . should be considered



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No. 14-2013, Dragomier, et al. v. Local 112 UAW


breaches of the duty of fair representation . . . .” Id. at 55. Appellants cite no case law

supporting the notion that a union breaches its duty of fair representation by failing to timely

disclose documents supporting its position during either the decision making timeframe or the

period of internal appeals. Moreover, for the reasons stated by the district court, the Unions’

failures to turn over the Entry Level MOU and 2008 clarifying documents did not amount to a

breach of the duty of fair representation.

                                        IV.   CONCLUSION

       For the foregoing reasons, we AFFIRM the judgment of the district court.




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