     Case: 18-40259      Document: 00514664352         Page: 1    Date Filed: 10/02/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                    No. 18-40259                              FILED
                                  Summary Calendar                      October 2, 2018
                                                                         Lyle W. Cayce
                                                                              Clerk
GEORGE W. DAVIS, IV,

              Plaintiff - Appellant

v.

UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING,
ENERGY, ALLIED, INDUSTRIAL AND SERVICE WORKERS
INTERNATIONAL UNION, LOCAL NUMBER 13-423,

              Defendant - Appellee




                      Appeal from the United States District Court
                           for the Eastern District of Texas
                                USDC No. 1:16-CV-213


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       George Davis worked as a dockman for Motiva Enterprises, LLC
(Motiva), a fuel refiner and distributor but was terminated for violating one of
the company’s “Life-Saving Rules” after he used his cellphone on the dock
without a permit. During Davis’s employment at Motiva, he was represented


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 18-40259
by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy,
Allied Industrial and Service Workers International Union, Local number 13-
423 (the Union). Davis sued the Union when it failed to arbitrate his grievance
against Motiva, alleging that the Union had breached its duty of fair
representation. The district court granted the Union’s motion for summary
judgment. We affirm.
                                         I
      Davis was employed by Motiva for seven years and was represented by
the Union. Dues were taken automatically from his paycheck. A collective
bargaining agreement (the CBA) was in place between the Union and Motiva
when Davis was terminated, and it provided that Motiva had the right to
discharge employees “for proper cause.”         The CBA set forth a grievance
procedure through which an employee or the Union could file a grievance in
the event that Motiva violated the CBA. The grievance procedure included an
arbitration process through which an employee or the Union could appeal to a
Board of Review consisting of three members: one selected by Motiva, one by
the complainant, and a third neutral arbitrator. Under the CBA, if a formal
hearing was not held before a Board of Review within two years of the receipt
of the grievance, “[a]ny grievance . . . shall be null and void.”
      On January 13, 2014, Davis was working as a dockman at Berth 7,
pumping lube oil into barges when he was observed using his cellphone,
allegedly in violation of one of Motiva’s Life-Saving Rules. Two days later,
Motiva held an HR meeting with Davis regarding his cellphone use, at which
Troy Barbay, the then-Chairman of the Union Workman’s Committee was
present. Motiva terminated Davis on January 23, 2014, citing his violation of
the Life-Saving Rule.
      On January 27, 2014, Troy Barbay filed a grievance with Motiva on
Davis’s behalf. In addition to asking that Motiva reinstate Davis, the Union
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also demanded that Motiva cease and desist from violating the CBA, that Davis
receive proper compensation, including benefits and overtime, and that Davis
generally be made whole.
      The Union began investigating the merits of the grievance. Immediately
following Davis’s termination, Barbay asked him to write a statement of events
to assist the Union. Davis did not do so. The Union sent four requests to
Motiva over the next year asking for information, documents, and records
pertaining to its decision to terminate Davis.        As part of this initial
investigation, the Union received a video from Motiva showing Davis using his
cellphone while at Berth 7. At that point, the Union began to have reservations
regarding the grievance. The Union again asked Davis to provide his account
of the events, but no information was provided at that time.
      On February 17, 2014, Motiva denied Davis’s grievance. On March 11,
2014, the Union was notified that Davis had secured outside counsel Stephen
Webb. This was the first time that Union representatives knew of an employee
hiring outside counsel during a grievance process. Unsure of how to proceed,
the Union decided that all future communication with Davis would go through
Webb. On March 19, 2014, the Union appealed the grievance, invoking the
Board of Review process under the CBA. Although the Union’s appeal was not
timely, Motiva did not object and agreed to select the third member of the
Board of Review, under the terms of the CBA.
      On April 16, 2014, Barbay requested for the third time that Davis
provide the Union with a written version of events and received no response.
In June, Barbay, the Union’s attorney, and the Union’s International Union
Staff Representative met with Davis and Webb. At this meeting Davis said
that he had not been texting but had been using the notepad application on his
phone.   The Union requested that Davis provide his cellphone records to
corroborate his version of events.    Davis declined to provide the records,
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                                            No. 18-40259
claiming that they were no longer available from the cell provider. One week
after the meeting, Webb sent the Union a letter detailing Davis’s version of
events while he was working at Berth 7. In the letter, Webb reiterated that
Davis had not been texting on January 13 while at Berth 7, and the
surveillance video only showed Davis inputting loading times into the notepad
function.
         While the Union was still investigating the grievance, Davis filed a Title
VII action against Motiva in the United States District Court for the Eastern
District of Texas. 1 Ultimately, the district court granted Motiva’s motion for
summary judgment and we affirmed. 2 While the Title VII case was pending,
the Union made several requests to settle the grievance through mediation,
which Motiva denied.               Although the Union had invoked the arbitration
procedures under the CBA, it chose to postpone arbitration for fear of harming
Davis’s Title VII case, believing that losing the arbitration could adversely
affect Davis’s chances in federal court.
         During this time, Webb and Davis expressed concerned to the Union
about the approaching two-year deadline for arbitrating the grievance. In
December 2015, Davis spoke to Jeremy Walker, who had replaced Barbay as
the Union’s Worker’s Committee Chair, about the approaching deadline.
Walker said that, based on past experiences with Motiva, he believed the
deadline would be treated with flexibility and would also be extended by 30
days to account for time that the Union was on strike. After this conversation
with Davis, Walker spoke to Motiva’s Human Resources Manager, Lee Poulter,
about extending the two-year deadline.                    Poulter said that he would need




         1   Davis v. Motiva Enters., LLC, No. 1:14-CV-480, 2016 WL 8677183 (E.D. Tex. Sept. 2,
2016).
         2   Id. at *1, aff’d, 692 F. Appx. 190 (5th Cir. 2017) (per curiam).
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Motiva’s attorney, Robert Hambright, Webb, and the Union’s attorney to all
agree to an extension of the deadline.
       On January 4, 2016, before a decision was made regarding the deadline
and while the Title VII case was still pending, Webb provided the Union with
Davis’s deposition testimony in the federal court case. In his deposition, Davis
admitted to texting on his cell phone at Berth 7, which directly contradicted
statements he had made to the Union during its investigation. After reviewing
the deposition testimony and considering other testimony and information
from its investigation, the Union decided that Davis’s grievance would be
unlikely to succeed and chose not to pursue arbitration before the Board of
Review.
       In May 2016 Davis filed a complaint against the Union in the 136th
District Court of Jefferson County, Texas. The Union removed the case to the
United States District Court for the Eastern District of Texas. Davis raised
two claims: the first alleged that the Union had violated its duty of fair
representation. The second was a breach of contract claim asserting that Davis
was a third-party beneficiary of the contract between Motiva and the Union,
and that the Union had breached that contract by failing to arbitrate timely
under the terms of the CBA. The Union moved for summary judgment on both
claims. The district court granted the Union’s motion for summary judgment
on the merits of Davis’s claims but denied the motion to the extent that the
Union requested attorney’s fees.             Davis appeals the grant of summary
judgment on the breach of the duty of fair representation claim. He has not
raised the breach of contract claim on appeal. 3




       3 See In re Southmark Corp., 163 F.3d 925, 934 n. 12 (5th Cir. 1999). See also United
States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000) (citing Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993)).
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                                              II
       The National Labor Relations Act (NLRA) governs “federal labor-
relations law.” 4 Under the NLRA, union representatives selected for collective
bargaining by the majority of employees in a unit of a company “shall be the
exclusive representatives of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of employment, or
other conditions of employment.” 5 As part of its statutory authority, the union
has “a statutory 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.” 6
       A union has a legal duty to process a grievance and must either prosecute
the grievance or “refuse for adequate reason to do so,” such as deciding in good
faith that the grievance lacks merit. 7 However an individual employee does
not have an “absolute right to have his grievance taken to arbitration.” 8
Rather, that right will depend on the “applicable collective bargaining
agreement” and the merits of the underlying grievance. 9                      A union has
considerable discretion in processing grievances and in deciding “whether and
how far a grievance should be pursued,” 10 and “their actions are judged by a
‘wide range of reasonableness.’” 11 A union “does not breach its duty of fair
representation . . . merely       because     it   settled    the    grievance     short    of



       4 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 255 (2009).
       5 29 U.S.C. § 159(a).
       6 Vaca v. Sipes, 386 U.S. 171, 177 (1967).
       7 Bache v. Am. Tel. & Tel., 840 F.2d 283, 289 (5th Cir. 1988) (quoting Hammons v.

Adams, 783 F.2d 597, 602 (5th Cir. 1986)).
       8 Vaca, 386 U.S. at 191.
       9 Id. at 191-92.
       10 Bache, 840 F.2d at 289 (quoting Hammons, 783 F.2d at 601).
       11 Carr v. Air Line Pilots Ass’n, Int’l, 866 F.3d 597, 602 (5th Cir. 2017) (per curiam)

(quoting O’Neill v. Air Line Pilots Ass’n, Int’l, 939 F.2d 1199, 1204 (5th Cir. 1991), rev’d on
other grounds, 499 U.S. 65 (1991)).
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arbitration.” 12 “A breach of the statutory duty of fair representation occurs
only when a union’s conduct toward a member of the collective bargaining unit
is arbitrary, discriminatory, or in bad faith.” 13
       Davis alleges that the Union acted arbitrarily and in bad faith. A union
acts arbitrarily “only if [the union’s conduct] can be fairly characterized as so
far outside a ‘wide range of reasonableness’ that it is wholly ‘irrational’ or
‘arbitrary.’” 14 Under this standard, a union is afforded broad discretion to
make decisions, even if those decisions are ultimately wrong. 15 A union’s
conduct will only be considered arbitrary when it has acted “irrationally,” or
“without a rational basis or explanation.” 16
       “Bad faith occurs when a union acts with a ‘motive to harm’ . . . and turns
on the subjective motivation of the union officials.” 17 This is a “‘demanding
standard’ met only by ‘sufficiently egregious’ union action.” 18 To demonstrate
that a union acted in bad faith, an employee must “show that the union acted
intentionally to harm [him] by ‘seriously undermin[ing] the integrity of the
arbitral process.” 19      Davis accepts that unions have broad discretion in
resolving a grievance, but nonetheless insists three instances show that the
Union acted arbitrarily or in bad faith. We review a district court’s grant of




       12  Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567 (1976) (alteration in original)
(quoting Vaca v. Sipes, 386 U.S. 171, 192 (1967)).
        13 Vaca v. Sipes, 386 U.S. at 190.
        14 Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 45 (1998) (alteration in original)

(quoting Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 78 (1991)).
        15 Marquez, 525 U.S. at 45-46.
        16 Id. at 46 (citing Air Line Pilots, 499 U.S. at 78-81).
        17 Carr v. Air Line Pilots Ass’n, Int’l, 866 F.3d 597, 602 (2017) (quoting O’Neill v.

Airline Pilots Ass’n, Int’l, 939 F.2d 1199, 1203-04 (5th Cir. 1991)).
        18 Id.
        19 Id. at 602 (second alteration in original) (quoting Hines v. Anchor Motor Freight,

Inc., 424 U.S. 554, 567 (1976)).
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summary judgment de novo, applying the same standards as the district
court. 20
                                              A
       Davis alleges that the Union acted arbitrarily or in bad faith by failing
to communicate with him at various times during the investigation. First, he
asserts that the Union failed to communicate directly with him.                       Barbay
testified that the Union did handle Davis’s grievance somewhat differently by
communicating only through Davis’s attorney, Webb. Barbay also explained
that the Union had never had an employee hire outside counsel for
representation during a grievance. We agree with the district court that “[t]his
fact would reasonably explain why the Union treated its communications with
Davis differently,” and such conduct may even be required by attorney rules of
professional conduct. 21 Although outside the norm for how the Union typically
handles a grievance, the Union’s actions were not “so far outside a ‘wide range
of reasonableness’ that [they were] wholly ‘irrational’ or ‘arbitrary.’” 22 Nor has
Davis offered any evidence to suggest that the Union’s decision to communicate
with Webb was intended to harm Davis. If anything, the evidence shows that
the Union respected Davis’s decision to hire outside counsel.
       Second, Davis contends that the Union acted arbitrarily or in bad faith
when it failed to communicate with Webb at various points during the
investigation. Even if the Union failed to respond to numerous phone calls and
written communications from Webb, as Davis claims, this does not rise to the




       20  DePree v. Saunders, 588 F.3d 282, 286 (5th Cir. 2009) (citing Freeman v. Texas Dep’t
of Criminal Justice, 369 F.3d 854, 859-60 (5th Cir. 2004)); Boone v. Citigroup, Inc., 416 F.3d
382, 392-93 (5th Cir. 2005).
        21 See MODEL RULES OF PROF’L CONDUCT R. 4.2 (AM. BAR ASS’N 2016); TEX.

DISCIPLINARY R. OF PROF’L CONDUCT 4.02(a) (TEX. BAR ASS’N 2018).
        22 Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 45 (1998) (quoting Air Line Pilots

Ass’n, Int’l v. O’Neill, 499 U.S. 65, 78 (1991)).
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level of arbitrary or bad faith conduct. There is evidence that even though
Davis and Webb became frustrated by the Union’s lack of response, the Union
continued to review material regarding Davis’s Title VII case and sent
mediation requests to Motiva, indicating that the Union was not neglecting the
grievance. The Union’s failure to respond to Davis’s attorney did not rise to a
level that can be considered “wholly irrational” or “arbitrary.” 23 Nor has Davis
offered any evidence that the Union intended to harm him by not responding
at various points during the investigation.
                                        B
      Davis also contends that the Union’s decision to delay the arbitration of
the grievance while Davis’s suit with Motiva was pending evidenced bad faith
and arbitrary action.
      We agree with the district court that the Union’s decision to postpone
arbitration was not evidence that it was arbitrary or in bad faith. The Union
offered evidence that it “believed that a loss at arbitration would certainly
adversely impact [Davis’s] Title VII case” and that it held a good-faith belief
that Motiva would be flexible with regard to the arbitration deadline. Motiva
had exhibited flexibility with regard to the deadline for invoking the Board of
Review process. The district court held that “the Union’s reliance on [Motiva’s]
history of freely granting extensions and flexibility with deadlines is
insufficient to establish arbitrariness or bad faith.”
      Even without its reliance on Motiva’s prior flexibility regarding
grievance deadlines, the Union had a reason to believe in good-faith that
pressing forward with arbitration could harm Davis’s Title VII suit. Instead,
the Union pursued mediation with Motiva. In addition, the Union received




      23   Id.
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Davis’s contradictory deposition testimony approximately two weeks before the
two-year hearing deadline.
                                             C
       Davis alleges that the Union’s assessment of the merits of Davis’s
grievance was pretextual. To establish bad faith or arbitrary conduct, Davis
must show something more than a failure to pursue his grievance through
arbitration. A union “does not breach its duty of fair representation” just
because it “settle[s] [a] grievance short of arbitration.” 24 Davis must show that
the Union acted in an “egregious” or “irrational” manner. Viewing the evidence
in a light most favorable to Davis, he fails to meet the high bar required to
demonstrate that the Union acted arbitrarily or in bad faith.
       The Union spent considerable time and effort investigating Davis’s
grievance. The Union was quick to file a grievance after Davis was terminated
and spent the following year requesting documents and evidence from Motiva.
The Union also attempted to obtain Davis’s version of events and held a
meeting with Davis and his outside counsel. Ultimately, however, in light of
Davis’s unwillingness to cooperate and his conflicting statements regarding his
cell phone use, the Union concluded that the grievance was unlikely to succeed
and did not merit the time and money required to pursue arbitration. Davis
asserts that the district court could not rely on his conflicting testimony and
attempts to distinguish the deposition questioning in which he admitted to
texting on his cellphone from the questioning by the union in which he denied
texting at Berth 7. However, the Union’s view that such discrepancies would
likely result in a loss at arbitration was not irrational. There is no evidence
that the decision not to arbitrate fell outside the Union’s broad discretion or



       24Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567 (1976) (quoting Vaca v. Sipes,
386 U.S. 171, 192 (1967)).
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was arbitrary. Nor has Davis shown that the Union acted with the intent to
harm him. Rather, the Union investigated the grievance for over two years
and made several requests to Motiva to mediate before ultimately concluding
that the grievance would not succeed.
       The district court properly held that the Union did not breach its duty of
fair representation by acting arbitrarily or in bad faith. Viewing the summary
judgment evidence in the light most favorable to Davis, he has failed to raise a
genuine issue of material fact. 25
                                  *            *           *
       We AFFIRM the district court’s judgment.




       25 See Lawyers Title Ins. Corp. v. Doubletree Partners, L.P., 739 F.3d 848, 856 (5th Cir.
2014) (explaining in the summary judgment context that courts are to consider the evidence
“‘in a light most favorable to the non-moving party and draw all reasonable inferences in
favor of the non-moving party’”) (quoting Frakes v. Crete Carrier Corp., 579 F.3d 426, 429-30
(5th Cir. 2009); FED. R. CIV. P. 56(c) (same); FED. R. CIV. P. 56(a) (providing that summary
judgment is appropriate when the movant has shown “no genuine dispute as to any material
fact” exists and he “is entitled to judgment as a matter of law”).
                                              11
