Barraby v. Vt. State Employees Ass’n, No. 342-6-05 Wncv (Crawford, J., Feb. 1, 2010)

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                                              STATE OF VERMONT
                                            COUNTY OF WASHINGTON

ALVIN BARRABY, JR.

v.                                                                  WASHINGTON SUPERIOR COURT
                                                                    DOCKET NO.: 342-6-05 Wncv

VERMONT STATE EMPLOYEES ASSOCIATION

                       DECISION ON MOTION FOR SUMMARY JUDGMENT

Plaintiff Alvin Barraby, Jr., a former employee of the Department of Corrections
(“DOC”) and member of the Vermont State Employees Association (“VSEA”), has
brought a claim against the VSEA for breach of the duty of fair representation. He has
already settled the related claims which he brought against the State of Vermont.

                                                  UNDISPUTED FACTS

The facts in this case are undisputed. The following statement of undisputed facts is
drawn from plaintiff’s statement or, in a few cases, from documents and emails attached
to defendant’s statement.

In 1985, Mr. Barraby was hired by the DOC as a correctional officer. As a DOC
employee, he was a member of the VSEA which functions as the union for state workers.
The terms of employment between the DOC and its employees are set forth in a
collective bargaining agreement.

In 2004, Mr. Barraby was employed as a Correctional Services Team Leader at the
Southeast State Correctional Facility in Windsor, Vermont. His responsibilities included
supervising female inmates on work release. During the winter of 2003-2004, several
inmates took pornographic pictures of themselves in exchange for cigarettes while they
were assigned to paint the interior of the fire station in Springfield, Vermont. Mr.
Barraby was responsible for supervising these women at the time the photos were taken.
Mr. Barraby denies knowledge of the “photos for cigarettes” scheme.

In March 2004, the DOC placed Mr. Barraby on paid leave during an investigation of the
incident. On May 5, 2004, William Soule, superintendent of the Southeast State
Correctional Facility, wrote to Mr. Barraby to state that DOC was contemplating his
dismissal for disciplinary reasons. The charges against Mr. Barraby included allegations
that he was having a romantic relationship with an inmate, that he was negligent in
supervising the inmates at the fire station, and that he was not honest in the statements he
gave the investigators.
The VSEA assigned Lucinda Kirk to represent Mr. Barraby in the disciplinary
proceeding. Ms. Kirk is not an attorney although she received guidance from an attorney
on the staff of the VSEA.

The first step in the disciplinary hearing was a Louderville hearing which was intended to
provide Mr. Barraby with an opportunity to respond to the charges against him. Mr.
Barraby did not attend the hearing. He claims that Ms. Kirk failed to notify him that the
hearing would take place during a ten day period while he was out of town in Wisconsin.
Ms. Kirk states that she notified Mr. Barraby of the hearing and that he failed to attend.

On behalf of Mr. Barraby, Ms. Kirk negotiated an agreement with DOC which permitted
Mr. Barraby to resign effective June 26, 2004, with sick leave until that date. The
agreement limited the information DOC would provide about Mr. Barraby:

        The State will respond to inquiries and/or reference checks regarding
        Grievant, by confirming that Grievant worked for the Department of
        Corrections from September 11, 1985 to June 26, 2004, that Grievant’s
        salary was $22.26 per hour and that Grievant voluntarily resigned from
        his position as a CSTL on June 26, 2004. No other information will be given,
        provided that all such inquiries and/or reference checks are directed to the
        Department of Corrections Personnel Administrator at the Agency of Human
        Services Personnel Unit.

The agreement contained a separate provision which released any claims arising under
the federal Age Discrimination in Employment Act. This provision included a rescission
period:

        For a period of seven (7) days following the execution of this agreement, Alvin
        Barraby may revoke the agreement, and this agreement shall not become effective
        or enforceable until this revocation period has expired.

Mr. Barraby signed the agreement May 28, 2004.

On June 2, 2004, the Eagle Times in Windsor, Vermont ran a front-page story entitled
“Corrections officer resigns.” The story included a statement from Superintendent Soule
that Mr. Barraby had resigned. Mr. Soule was quoted as stating, “It is fairly clear his
resignation partially resulted from the problems associated with the work crew.”
Superintendent Soule identified Mr. Barraby as the work crew supervisor. The
newspaper story described the events at the fire station, the subsequent resignation of a
Springfield firefighter, and an investigation by the Springfield selectboard which
attributed the scandal to poor supervision of the work crew. 1



1
  The June 2 story was preceded by a similar story dated May 20, 2004, which was headlined “States takes
its time with scandal inquiry.” The earlier story quoted Superintendent Soule as identifying the work crew
supervisor as the person primarily responsible for the scandal. Mr. Barraby was not identified by name.


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Mr. Barraby was angered by the newspaper coverage. On June 2, 2004, he sent Ms. Kirk
an email stating:

       In today’s Eagle Times Bill Soule is quoted and uses my name and states that I
       resigned. There can not be any more of a blatant violation of the agreement. I am
       hereby rescinding my resignation and the agreement. I look forward to the union
       taking my case and renegotiating. Bill Soule has slandered me for the last time.
       Let’s talk.

Ms. Kirk forwarded the email to Michael Casey, an attorney at VSEA with this comment:

       Hi: I don’t think that DOC violated anything, and I know that they are not going
       to rescind his resignation so that they can get sued ! Page me when you have a
       minute tomorrow so we can talk about this, please. I have a feeling Butchy is not
       going away just yet !

On June 4, 2004, Peter Garon, an administrator at the Agency of Human Services,
advised Ms. Kirk that he did not believe the news stories violated the confidentiality
provision. On June 6, 2004, Ms. Kirk sent an email to Mr. Barraby stating that she
would pass the matter along to the attorneys at the VSEA.

Neither Mr. Barraby nor the VSEA on his behalf exercised the “rescission” provision in
the agreement or filed a grievance with the DOC concerning the newspaper interviews.
Mr. Barraby’s employment terminated pursuant to the agreement at the end of June 2004.

                                        ANALYSIS

The parties agree that Mr. Barraby’s claim against the VSEA is for breach of the duty of
fair representation. Plaintiff states in his memorandum:

       The VSEA owes a duty of fair representation that extends to all members of any
       [collective bargaining agreement] which the VSEA represents. … A union
       breaches its duty of fair representation only when its conduct toward a bargaining
       unit member is arbitrary, discriminatory, or in bad faith. … If the VSEA acted in
       an arbitrary or discriminatory manner toward Mr. Barraby, or acted in bad faith
       with respect to Mr.Barraby, it violated its duty of fair representation.

Plaintiff’s memorandum. in opposition to motion for summary judgment at 10. The
VSEA argues that summary judgment is appropriate for reasons:

       1. Plaintiff failed to exhaust his collectively bargained-for administrative
remedies by filing a grievance with the DOC concerning the alleged violation of the
confidentiality provision in the settlement agreement;

        2. There is insufficient evidence of arbitrary or discriminatory actions or bad faith
on the part of the VSEA.



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The other bases for the defendant’s motion – that no cause of action exists against a union
for breach of contract or for negligence – are implicitly conceded by the plaintiff who
clearly identifies breach of the duty of fair representation as the basis for his legal claim.
The case law unequivocally supports VSEA’s position that members cannot sue their
own union for negligence or breach of contract (except under conditions not present
here), and the plaintiff does not contest this assertion. See Duerr v. Minnesota Min. and
Mfg. Co., 101 F.Supp. 2d 1057 (N.D. Ill. 2000)(claim against union limited to breach of
duty of fair representation); Curran v. International Union, 582 F.Supp. 420, 422
(W.D.N.Y. 1984)(duty of fair representation defines the obligation of the union to its
members.)

       I. Failure to exhaust remedies arising under the CBA

Defendant claims that Mr. Barraby’s failure to file a grievance under the collective
bargaining agreement bars any claim against the union for failing to do the same thing.
The argument is circular. Mr. Barraby’s position is that he relied on the VSEA to act on
his behalf and, specifically, to file a grievance seeking rescission of the settlement
agreement. He claims that the DOC and the VSEA acted together to defeat his effort to
enforce the confidentiality provision. The VSEA argues that filing such a grievance is a
precondition to filing a claim of fair representation.

       If, as Plaintiff alleges, the DOC failed to accept his revocation and subsequently
       ended his employment, then Plaintiff had an obligation under the exhaustion of
       administrative remedies requirement to file a grievance to the terms of the CBA
       before filing this action. Plaintiff did no such thing. Thus, the VSEA was not
       given the opportunity to represent Plaintiff. (citations omitted).

Defendant’s Memo. at 8. Reduced to its simplest terms, the argument is that Mr. Barraby
cannot sue the VSEA for failing to take steps to represent him because he should have
taken the same steps himself.

The cases which develop the requirement of exhaustion of contractual remedies before
suit stop short of such a broad defense. In Vaca v. Sipes, 386 U.S. 171 (1967), the U.S.
Supreme Court recognized an exception to the general rule of exhaustion of remedies in
cases brought against employers.

       …[T]he wrongfully discharged employee may bring an action against his
       employer in the face of a defense based upon the failure to exhaust contractual
       remedies, provided the employee can prove that the union as bargaining agent
       breached its duty of fair representation in its handling of the employee's
       grievance.

Id, 386 U.S. at 184.


       II. Breach of the Duty of Fair Representation



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Whether Mr. Barraby can prove a breach a duty of fair representation is a factual issue.
Mr. Barraby points to emails from the union representative which are dismissive and
faintly derogatory in tone as evidence that the union and the employer colluded to prevent
Mr. Barraby’s claim of breach of the confidentiality agreement from going forward. The
union claims that it was up to Mr. Barraby to file a grievance and give the union an
opportunity to represent him.

The legal standard for a breach of the duty of fair representation is proof of conduct
which is arbitrary, discriminatory or in bad faith. Ploof v. Village of Enosburg Falls, 147
Vt. 196 (1986). In this case, the claim is essentially one of bad faith. The union
describes this as a subjective standard requiring proof of fraudulent, deceitful or
dishonest action. See Sim v. New York Mailers’ Union No. 6, 166 F.3d 465, 472 (2d Cir.
1999).

The court is unable to determine as a matter of law that the union acted in good faith in
choosing not to advocate for Mr. Barraby after he expressed his concern about the
newspaper interview. A letter or email stating that the union would not be pursuing the
case further with some word of explanation would have cleared the air and let Mr.
Barraby know what steps he could take on his own. Instead, the employer and the union
corresponded privately about the case. Then the union let it drop. There may be an
entirely valid explanation for this behavior. It will require a trial to determine whether
Mr. Barraby can meet the high standard of proof of arbitrary, discriminatory or bad faith
conduct.

                                     CONCLUSION

For these reasons, the court denies the motion for summary judgment with respect to the
claim of breach of the duty of fair representation. The motion is granted with respect to
the claims for breach of contract and for negligence.

Dated:
                                                             _________________
                                                             Geoffrey Crawford,
                                                             Superior Court Judge




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