                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 10-3886
                                      _____________

                               CHESTER E. CROMWELL,
                                           Appellant

                                             v.

             UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC;
                    INNOVATIVE COMMUNICATION INL,
                         d/b/a Innovative Telephone
                               _____________

                   Appeal from the District Court of the Virgin Islands
                             (D.C. Civil No. 08-cv-00149)
                      District Judge: Honorable Curtis V. Gomez
                                    _____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 12, 2011

               Before: SCIRICA, RENDELL and AMBRO, Circuit Judges

                             (Opinion Filed: April 12, 2011)
                                    _____________

                               OPINION OF THE COURT
                                   _____________

RENDELL, Circuit Judge.

       Chester E. Cromwell brought this pro se action alleging that Innovation

Communication, Inc. violated the Collective Bargaining Agreement (“CBA”) by

suspending and terminating him due to his inability to pass a written certification test to
become a pole climbing instructor, and that the United Steelworkers of America (“the

Union”) breached its duty of fair representation during, and in the aftermath, of his

suspension and termination. The District Court of the Virgin Islands granted summary

judgment to both defendants, affirming the decision and award issued by the Arbitrator

who, pursuant to the CBA, first heard the case. Cromwell appealed the District Court‟s

ruling. For the reasons set forth below, we will affirm.

          Because this case arises under the National Labor Relations Act, 28 U.S.C. §

151, the District Court exercised jurisdiction pursuant to 28 U.S.C. § 1331. We have

jurisdiction under 28 U.S.C. § 1291 to review the District Court‟s final order. We apply a

plenary standard of review to the order granting summary judgment and, in so doing, we

apply the same standard as the District Court. State Auto Prop. & Cas. Ins. Co. v. Pro

Design, P.C., 566 F.3d 86, 89 (3d Cir. 2009); Bouriez v. Carnegie Mellon Univ., 585 F.3d

765, 770 (3d Cir. 2009) (“Summary judgment is appropriate „if the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as a

matter of law.‟” (quoting Fed. R. Civ. P. 56(c)). We review the district court‟s factual

findings for clear error. Nino v. Jewelry Exch., Inc., 609 F.3d 191, 199-200 (3d Cir.

2010).

                                         Background

         As we write primarily for the parties, we recite only those facts necessary to our

analysis. Cromwell was originally hired by Innovative, a Virgin Islands

telecommunications and cable television company, in 1999 as a janitor. In 2000, he was

                                               2
promoted to the position of Installer/Repairman. He received some training at the time of

his promotion, but he was not trained in pole climbing, one of the essential duties of the

Installer/Repairman position. Thus, he was not equipped to perform this portion of his

job, as U.S. Occupational Safety and Health Administration (“OSHA”) regulations

require that all pole climbers receive certification from an individual himself or herself

certified in pole climbing instruction.1

       In 2005, Innovative sent one of its employees, Andrew Remselnik, to Texas A&M

University to be certified as a pole climbing instructor. Beginning in January 2006,

Remselnik began training and certifying Innovative Installer/Repairmen in pole climbing;

the process included classroom training followed by a written test made up of twenty

true/false and multiple-choice questions. A grade of 80% was required to pass.

       Cromwell underwent pole climbing training and took the test six times between

July 3, 2007 and July 5, 2007. He was provided with paid leave time to study throughout

the period of training and tests. During one of the tests, due to concern regarding

Cromwell‟s ability to read and write, Cromwell was read the questions by a Union Shop

Steward and Remselnik wrote his answers on the test form. Cromwell failed the test each

time, including when it was administered orally. Twenty-eight other employees who had

been trained by Remselnik took and passed the same test by July 2007.

       As a result of his failure to pass the test, Cromwell was suspended for ten days. At

the time of his suspension, Innovative offered to return him to his former janitor position,

1
  Several company witnesses testified at Cromwell‟s arbitration hearing that men were
climbing poles who were not certified and that Innovative was not in compliance with the
OSHA regulations.
                                              3
but he declined. A suspension hearing was held pursuant to Article XV of the CBA,2 at

which Cromwell was represented by the Local Union President, the Union Shop Steward,

and Randolph Allen, a Staff Representative for the Union in St. Thomas. Because

Cromwell was not able to provide a plausible explanation at his hearing for his inability

to pass the test, Innovative converted his suspension into a termination. Cromwell issued

no complaints at this point about the Union‟s representation during the hearing.

         The Union then filed a grievance on Cromwell‟s behalf, pursuant to Article XVI

of the CBA, which sets forth the Grievance Procedure. Innovative denied the grievance,

and the Union proceeded to Arbitration. At the arbitration hearing, the Union and

Innovative presented exhibits and testimony on the issue of whether Cromwell was

terminated for just cause. Cromwell was represented by Frederick Joseph, the Sub-

District Director for the International Union, who oversees the Union‟s activities for all

of the Virgin Islands. The Arbitrator denied the Union‟s grievance, based on its finding

that Innovative had just cause for terminating Cromwell; she explained in her Findings

that Innovative‟s requirement that Installer/Repairmen had to pass the pole climbing test


2
    Article XV of the CBA provides, in relevant part:
         Section 1. The Company retains the exclusive right to discipline, discharge or
         suspend an employee for just cause. Written notice of the suspension stating the
         period of suspension and the reason therefore will be given the employee and the
         Union not later than the start of employee‟s next regularly scheduled shift . . . .
         Section 2. During such suspension period, the employee or Union may request
         and shall be granted a hearing before a representative of the Company with the
         Local Union Grievance Chairman, Assistant Grievance Committee Chairman or a
         grievance committee member present. No decision shall be made to discharge an
         employee pending investigation prior to a hearing with the Union or ten (10)
         working days, whichever comes first . . . .

                                               4
was related to the orderly, efficient and safe operation of its business and that it was

reasonable for the company to expect its employees to be certified. The Union denied

Cromwell‟s request that the Union appeal the Arbitrator‟s award.

       Cromwell then filed a complaint in the District Court of the Virgin Islands

claiming that Innovative violated the CBA in suspending and terminating him and that

the Union breached its duty of fair representation in its handling of the arbitration and its

refusal to appeal the arbitrator‟s decision. He asked that the District Court vacate the

Arbitrator‟s award and reinstate him to his installer/repairman position. Both Innovative

and United Steelworkers filed motions for summary judgment, which were granted by the

District Court. The District Court found that Cromwell‟s claims against Innovative and

the Union constituted a hybrid claim under § 301 of the Labor Management Relations

Act (“LMRA”), 29 U.S.C. § 185, and that Cromwell failed to provide evidence that a

genuine issue of material fact existed as to either one of his claims.

       On appeal, Cromwell again asserts that Innovative violated the CBA and that the

Union breached its duty of fair representation. He also claims that Innovative‟s decision

to suspend and terminate him was in retaliation for his filing of two EEOC complaints for

harassment and discrimination, an arbitration award against Innovative, and his filing of a

breach of fiduciary duty claim against the Union in 2007. Amidst these arguments, he

also raises a panoply of poorly articulated claims, including allegations that Innovative

and the Union committed fraud and that the District Court erred in not allowing him to

amend his complaint. We will not address these other arguments both because they are



                                              5
raised for the first time on appeal3 and because minimal factual and legal support make it

nearly impossible to discern exactly what Cromwell is arguing.4

                                        Discussion

       The District Court properly treated Cromwell‟s suit as a “hybrid” action under §

301 of the LMRA. In such an action, “a union member sues his or her employer for

breaching its contractual obligations under the collective bargaining agreement and the

union for breaching its duty of fair representation.” Beidleman v. Stroh Brewery Co., 182

F.3d 225, 236 (3d Cir. 1999). A plaintiff bringing a hybrid claim must prove two

essential and “inextricably interdependent” elements: “that the employer breached the

collective bargaining agreement in order to prevail on the breach of duty of fair

representation claim against the union, and vice versa.” Felice v. Sever, 985 F.2d 1221,

1226 (3d Cir. 1993).


3
  We adhere to the “„well-established principle that it is inappropriate for an appellate
court to consider a contention raised on appeal that was not initially presented to the
district court.‟” Lloyd v. HOVENSA, LLC, 369 F.3d 263, 272-73 (3d Cir. 2004) (quoting
In re City of Phila. Litig., 158 F.3d 723, 727 (3d Cir. 1998)).
4
  Rule 28(a) of the Federal Rules of Appellate Procedure requires that an appellant‟s brief
include in its argument section “appellant‟s contentions and reasons for them, with
citations to the authorities and parts of the record on which appellant relies.” With regard
to his vague, diffuse arguments that fall outside his CBA violation, breach of duty of fair
representation, and retaliation claims, Cromwell fails to provide adequate contentions,
reasoning or citations. Defendant United Steel Workers argues that we should dismiss
Cromwell‟s full appeal on the basis that his briefing fails to comply with Rule 28(a)‟s
requirements for the headings and content of an appellate brief. Though we note the
challenge of culling through Cromwell‟s legal arguments, we construe pro se filings
liberally, Rencheski v. Williams, 622 F.3d 315, 337 (3d Cir. 2010), and, accordingly, we
will not dismiss all his claims on these grounds. Cromwell has, to some extent, set forth
in his brief “contentions and the reasons for them, with citations to the authorities and
parts of the record” he relies on, as Rule 28 requires.
                                             6
         We agree with the District Court that Cromwell fails to present a genuine issue of

material fact as to whether Innovative breached the CBA. Cromwell‟s primary argument

is that Innovative breached the CBA by unfairly and excessively delaying his training on

the fundamentals of pole climbing after he was promoted to the position of

Installer/Repairman in 2000. Under Article IX (Seniority), § 7(3)5 and Article XXI

(Training), § 16 of the CBA, he posits, Innovative was required to provide him with

training in pole climbing within 90 days of his promotion. Though we note, as the

Abitrator did, that Cromwell and the other Installer/Repairmen‟s training was delayed for

a long period of time, Cromwell has presented no evidence to establish that this delay

was a violation of the CBA. We agree with the District Court‟s interpretation that the

CBA does not set forth a specific time period in which Cromwell had to receive pole

climbing training. Article IX‟s provision for a 90-day probationary period does not


5
    Article IX, § 7(3) provides, in pertinent part:
         Employees who are selected by the Company for a promotion pursuant to this
         Article and are unable to meet the requirements of the position within ninety (90)
         working days shall be returned to their former position at the applicable rate of pay
         for that position.
6
    Article XXI, § 1 provides, in pertinent part:
         The company agrees to continue its formal and informal training program as
         required for its bargaining unit employees and further agrees to explain and review
         existing programs and keep the Union informed as to the development of new
         programs.
         All employees hired or promoted shall receive formal and informal training during
         their initial ninety (90) days. Formal training shall either be classroom or on the
         job. The extent of the formal training shall be determined by the Company. The
         Company agrees that all training shall be reasonably job related, and at a level
         appropriate to the level of the job. It is the goal of the Company and the Union to
         assure that all employees in a particular job classification with a department learn
         all phases on the work.
                                               7
require that Innovative provide its employees with all the training necessary to perform

their positions within that 90-day period; its focus is on the employee’s satisfaction of the

Company‟s requirements during that time period, not on what the employer must provide

in terms of training during that time period. Article XXI requires only that employees

receive some kind of training for their positions within 90 days of hiring or promotion. It

then goes on to explicitly state that “[t]he extent of . . . training shall be determined by the

Company,” thus providing the Company with discretion as to precisely what training to

provide during the initial 90-day period. Further, other parts of the CBA confirm the

broad authority provided to management in conducting the company‟s affairs.7 Both the

Arbitrator and the District Court found Innovative‟s training of Cromwell to be consistent

with this authority, and we will not disturb that conclusion.

         Throughout the fact and argument sections of his brief, Cromwell makes several

other allegations of various ways that Innovative breached the CBA. He repeatedly

challenges the basis for his termination, alleging that Innovative lacked just cause to

terminate him because he did not actually fail the test six times. Since he raises this

argument for the first time on appeal, he has waived it. Moreover, even if he had


7
    For example, Article I of the CBA, the “Management Rights Provision,” provides:
         The Management of the Company and the direction of the working force are
         vested exclusively with the Company. The Company hereby retains the sole
         control over all matters concerning the operation, management, and administration
         of its business, including, but not limited to the administration of its departments
         and operations, the organizations and methods; of types of work, the assignment of
         work, the direction of Personnel, decisions on subcontracting, the right to hire,
         reclassify, transfer, discipline, suspend, separate or pension employees and all
         functions inherent in the administration and/or management of the business except
         as expressly limited by the terms of this agreement.
                                               8
properly raised the issue, his six-time failure of the test was a finding of fact by the

District Court, and we have no reason to believe that the District Court clearly erred in

making this finding. In addition, Cromwell asserts that Innovative breached the CBA by

failing to provide him with a tutor when he initially failed the test.8 Nowhere does the

CBA require the employer to supply such remedial aid. The provision he cites –

providing that the Company should continue to offer training programs so that employees

know how to use advancing technology – is inapposite.

       Cromwell‟s failure to present any genuine issue of material fact regarding his

contention that Innovative breached the CBA in suspending and terminating him is fatal

to his § 301 claim. Felice, 985 F.2d at 1226. Nonetheless, we note that, even if he could

establish a genuine issue as to his CBA claim, his duty of fair representation claim must

fail. A breach of the statutory duty of fair representation occurs only when a union‟s

conduct towards a member of the collective bargaining unit is “„arbitrary, discriminatory,

or in bad faith.‟” Hendricks v. Edgewater Steel Co., 898 F.2d 385, 388 (3d Cir. 1990)

(quoting Vaca v. Sipes, 386 U.S. 171, 190 (1967)) . “[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.”

8
 Cromwell seems to base this argument on Article XXI (Training), § 2, which is
subtitled “Technology,” and provides, in pertinent part:
        It is the Company‟s policy to assure that training is available for its employees so
        that they may have the opportunity to acquire the knowledge and skills required by
        the introduction of new technology. The parties recognize that, in some cases,
        senior employees may lack qualifications or technical skills necessary for a higher
        or different position. In order to aid senior employees with advancement, the
        Company will continue to offer training opportunities to include tuition
        reimbursement, program-learning and other types of training.
                                               9
Air Line Pilots Ass'n v. O'Neill, 499 U.S. 65, 67 (1991) (quoting Ford Motor Co. v.

Huffman, 345 U.S. 330 (1953) (internal citation omitted)). Further, we have stated that

an employee is “subject to the union's discretionary power to settle or even to abandon a

grievance, as long as it does not act arbitrarily.” Bazarte v. United Transp. Union, 429

F.2d 868, 872 (3d Cir. 1970).

       The District Court is correct that Cromwell cannot meet the high burden of

establishing that the Union‟s conduct in representing him was arbitrary, discriminatory,

or in bad faith. The Union undoubtedly fulfilled its obligation to represent Cromwell by

filing a grievance on his behalf, taking the grievance to arbitration, and representing his

interests before the Arbitrator. The Supreme Court has said that, in the context of a

grievance proceeding, a union may not “arbitrarily ignore a meritorious grievance or

process it in a perfunctory fashion,” Vaca, 386 U.S. at 191, and we have clarified that

“[m]ere ineptitude or negligence in the presentation of a grievance by a union has almost

uniformly been rejected as the type of conduct intended to be included within the term

„perfunctory.‟” Findley v. Jones Motor Freight, Etc., 639 F.2d 953, 960 & n.2 (3d Cir.

1981). Here, the Union diligently pursued Cromwell‟s claim, far exceeding the low bar

of “ineptitude or negligence” that a Union must fall below for a breach of duty of fair

representation claim to go forward. Cromwell‟s conclusory assertions to the contrary –

primarily that the Union should have let Randolph Allen, rather than Frederick Joseph,

represent him at the Arbitration – do not pass muster. Cromwell provides no support for

the proposition that the Union‟s duty of fair representation includes an obligation to



                                             10
provide him with his first-choice Union representative and no evidence that Joseph, more

experienced and senior than Allen, did not competently represent him

       Finally, Cromwell‟s vague allegations of “retaliation,” which the District Court

did not address, are unsupported by any evidence in the record and do not come close to

fulfilling the requirements for a prima facie case of retaliation under Title VII of the Civil

Rights Act of 1964. See Ambramson v. William Patterson Coll., 260 F.3d 265, 286 (3d

Cir. 2001) (“To advance a prima facie case of retaliation under Title VII . . . , a plaintiff

must show that: (1) the employee engaged in a protected employee activity; (2) the

employer took an adverse employment action after or contemporaneous with the

employee‟s protected activity; and (3) a causal link exists between the employee‟s

protected activity and the employer‟s adverse action.”).

                                         Conclusion

       For the foregoing reasons, we will affirm the District Court‟s grant of summary

judgment to both Innovative and the Union.




                                              11
