     Case: 11-60145     Document: 00511816897         Page: 1     Date Filed: 04/10/2012




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

                                                                            FILED
                                                                           April 10, 2012

                                      No. 11–60145                         Lyle W. Cayce
                                                                                Clerk

ROSE OMINSKI,

                                                  Plaintiff-Appellant
v.

NORTHROP GRUMMAN SHIPBUILDING, INCORPORATED; PLUMBERS
& STEAMFITTERS LOCAL UNION 436

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:09-CV-755


Before GARZA, DENNIS, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Rose Ominski, proceeding pro se, appeals the district
court’s order granting summary judgment in favor of the Defendants-Appellants
Northrop Grumman Shipbuilding, Inc. (“NGS”) and Plumbers & Steamfitters
Union, Local 436 (“the Union”) on Ominski’s claims relating to her termination
from NGS’s pipewelder apprenticeship program. We AFFIRM.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                              I
       NGS hired Ominski to be a pipe-welder apprentice at its facility in
Pascagoula, Mississippi on April 9, 2009. The apprenticeship program required
Ominski to complete 640 training hours, three years of classroom work, and
6000 hours of work in NGS’s shipyard to become a journeyworker. Three
contracts purported to govern aspects of Ominski’s employment; they each
contain slightly conflicting provisions regarding the duration of Ominski’s
probationary status and the level of cause required to justify her termination.
       A collective bargaining agreement (“CBA”) between NGS and the Union
provided that the “the Production and Maintenance employers at [NGS’s
Pascagoula] facility . . . constitute[d] the appropriate bargaining unit” covered
by the CBA.1 Article 12, § 2 of the CBA discusses the probationary period for
“new employees covered by this Agreement.” It provides, in relevant part: “All
new employees covered by this Agreement shall be considered to be on probation
for the first sixty (60) days of employment exclusive of testing and preparatory
training. During the probation period, the Company may, at its option and
without limitation, transfer, lay off, or dismiss such employee.”
       Soon after Ominski began her apprenticeship, she signed the “Program
Registration and Apprenticeship Agreement” (“Apprenticeship Agreement”) with
the Joint Apprentice and Training Committee (“the Committee”).2                          The


       1
          Ominski conceded in her second amended complaint that she was a production-and-
maintenance employee within the Union’s bargaining unit. Second Amended Complaint at
2 (“[The Union] was the recognized collective bargaining representative of the bargaining unit
of . . . NGS’s production and maintenance employees, including Plaintiff, employed in . . .
NGS’s pipe and training departments, at its Pascagoula facilities.”). Accordingly, the CBA
governed the terms of Ominski’s employment.
       2
        The Committee is “composed of an equal number of representatives of [NGS] and the
Union.” The CBA (1) charges the Committee with making “rules and requirements governing
the qualifications, education, and training of all Apprentices” and (2) provides that the
“Apprenticeship Program will be continued in accordance with the standards approved by the
U.S. Bureau of Apprenticeship, which shall be countersigned by the Union and [NGS].”

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Apprenticeship Agreement stated that the term of Ominski’s apprenticeship was
6000 hours and that the probationary period for her apprenticeship was 1000
hours. The Agreement provided that the apprenticeship “may be terminated by
either of the parties, citing cause(s), with notification to the registration agency,
in compliance with [29 C.F.R. § 29.7(h)].” The Agreement also stated that, “the
terms of Apprenticeship standards [are] incorporated as part of this Agreement.”
       The terms of a third agreement, the “Standards of Apprenticeship,” were
incorporated as part of the Apprenticeship Agreement and provided for a
different probationary period than both the CBA and the Apprenticeship
Agreement. Specifically, the Standards contain the following language: “All
Apprentices employed in accordance with these Standards shall be subject to a
probationary period of 500 hours of employment. During this probationary
period, annulment of the Apprenticeship agreement shall be made upon request
of either party to the agreement or [the Committee] for good cause.”3
       Before her interview, NGS presented Ominski with a handout on the
“Registered Apprenticeship Program.” The Handout contained rules governing
apprentices’ attendance for class and work, but it also stated that the
information in the handout was “a general guide” and that “the Bargaining
Agreement and Standards of Apprenticeship supersede[] all above information.”
On the date she began her apprenticeship, she signed a document entitled
“Attendance while in Training,” in which she acknowledged she understood the
following conditions: “You will not be allowed to have more than two excused
attendance violations (absences of any type) during your training period. No


       3
           The Standards also contain language explicitly stating that the terms of the CBA
control in the case of any conflict: namely, they provide: (1) “These Standards will not alter any
provisions established through collective bargaining”; and (2) “The provisions of these
Standards shall be subject to the terms of existing and subsequent bargaining agreements
made collectively or separately between . . . Local 436 and [NGS] . . . . In the event of any
conflict in any provisions contained herein with any provision of the Basic Labor Agreement,
the provisions of the Basic Labor Agreement shall prevail.”

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unexcused lost time allowed.” It is not disputed that Ominski missed more than
two days of work in the three-and-a-half months of her apprenticeship.
      Shortly after Ominski began her apprenticeship, the apprenticeship class
met with the Union to discuss the benefits of membership, including
representation if a controversy arose with the company regarding their
employment. At the meeting, Ominski applied for the additional benefits of
Union membership and signed a form that authorized the withdrawal of
membership dues from her paycheck. The Union began deducting membership
dues from her paycheck sixty days after she began the apprenticeship program.
She alleges that the payroll deduction led her to believe that she had obtained
Union membership, entitling her to representation.
      On July 29, 2009, the day before Ominski was fired, she attended an
orientation meeting, which included a discussion among an NGS human
resources representative and employees concerning various issues that arise in
NGS’s shipyard production. At the end of the meeting, Ominski alleges that the
human resources representative told the employees present that the company
was concerned about their success and “even if they were not members of the
Union, they could count on [NGS] for representation.” After the meeting,
Ominski apparently approached an NGS health and safety analyst to share
some of her concerns regarding safety issues in the training center.
      On July 3, NGS informed Ominski and a male employee that they were
being terminated and provided both with a coded sheet indicating “Code 23
Probationary Release.” When Ominski asked why she was being terminated,
NGS informed her that she had missed too much time.           Ominski sought
representation from the Union, hoping the Union would file a grievance on her
behalf under CBA procedures. The Union, however, told Ominski that it could
not represent her until she had completed her training and worked in the



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shipyard for sixty days. The Union later refunded the dues that had been
withheld from her paychecks.
       Ominski sued NGS and the Union under § 301 of the Labor Management
Relations Act, 29 U.S.C. § 185. She raised claims for (1) unlawful discharge and
wrongful termination in breach of the CBA against NGS; (2) breach of the duty
of fair representation against the Union; and (3) negligent misrepresentation
against the Union. NGS moved for summary judgment on Ominski’s claims,
asserting that (1) Ominksi was an at-will employee when she was discharged
and thus could be terminated without cause,4 and (2) Ominski’s negligent
misrepresentation claims failed as a matter of law because there was no
evidence that she took any action in reliance on her belief that she would be
represented by the Union or NGS in the event of a conflict. The Union joined in
NGS’s motion.
       The district court granted summary judgment for the two defendants and
dismissed all of Ominski’s claims. The district court held that NGS did not
breach the CBA by firing Ominski because it discharged her during the
probationary period of her employment, during which the CBA permitted NGS
to terminate employees without limitation.5 The district court also granted
summary judgment on Ominski’s negligent misrepresentation claims, finding
that she had failed to raise an issue of material fact regarding whether she relied
to her detriment on any statement made by the Union or NGS.6



       4
          Alternatively, the company contended that it had good cause to fire Ominski due to
her violations of the attendance policy she signed when she began her apprenticeship.
       5
         The district court also held that NGS had just cause to terminate Ominski’s
apprenticeship because she had violated the company’s attendance policy.
      6
         The district court also dismissed Ominski’s claims for tortious interference with
contract against both NGS and the Union. Ominski waived those claims in her motion for
rehearing, and we do not consider them on appeal.

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      Ominski moved for reconsideration, also asserting additional claims of
negligent representation against NGS, which primarily related to her
supervisor’s alleged reassurances that she could “take all the time she needed
upon learning of her brother’s critical accident.” The district court denied
reconsideration, holding that it did not have to consider Ominski’s new
arguments at that stage of the litigation. The district court also held that
Ominski’s negligent misrepresentation claims lacked merit because she failed
to demonstrate her reasonable reliance on any misrepresentation to her
detriment. This appeal from the district court’s order on summary judgment
followed.
                                        II
      Affording Ominski the leeway to which she is entitled as a pro se
petitioner, see Haines v. Kerner, 404 U.S. 519, 520–21 (1972), Ominski’s
complaint asserts causes of action (1) charging her employer with a breach of the
CBA by wrongfully discharging her without sufficient cause pursuant to § 301
of the Labor-Management Relations Act (“LMRA”), 29 U.S.C. § 185(a); and (2)
charging the Union with violating its duty of fair representation in mishandling
the ensuing grievance pursuant to the scheme of the National Labor Relations
Act, 29 U.S.C. §§ 151 et seq. See Edwards v. Sea-Land Serv., Inc., 720 F.2d 857,
858 (5th Cir. 1983) (citing Vaca v. Sipes, 386 U.S. 171, 186–87 (1967) (discussing
hybrid 301/fair representation claims)); see Daigle v. Gulf State Utils. Co., Local
Union No. 2286, 794 F.2d 974, 977 (5th Cir. 1986) (same) (citing DelCostello v.
Teamsters, 462 U.S. 151, 165 (1983)).
                                        A
      We “review the district court’s grant of summary judgment de novo,
applying the same standard as the district court.” Espinoza v. Cargill Meat
Solutions Corp., 622 F.3d 432, 437 (5th Cir. 2010) (quoting Chaney v. Dreyfus
Serv. Corp., 595 F.3d 219, 228–29 (5th Cir. 2010)). Summary judgment is

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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.” FED. R. CIV. P. 56(c).
“Factual controversies are construed in the light most favorable to the
nonmovant, but only if both parties have introduced evidence showing that an
actual controversy exists.” Espinoza, 622 F.3d at 437–38 (quoting Lynch Props.,
Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998)).
                                               B
       Ominski initially asserts that the district court erred by granting
summary judgment for NGS on her claim that the company wrongfully
terminated her in breach of the CBA. Ominski contends that the district court
erred by finding that she was a probationary employee under Article 12 of the
CBA at the time of her termination. Instead, she asserts that, as an apprentice,
the specific provisions of her Apprenticeship Agreement, as modified by the
incorporated Standards of Apprenticeship, determined the duration of her
probationary status. Because the Standards of Apprenticeship provide that an
apprentice’s probationary period is 500 hours, she maintains that she was no
longer a probationary employee when she was terminated and, thus, could only
be discharged for “just and sufficient cause” under Article 8, § 3 of the CBA.7




       7
         Alternatively, she asserts that even if she were still a probationary employee when
she was discharged, the Standards of Apprenticeship provided that her apprenticeship could
only be terminated for “good cause.” She further disputes the district court’s finding that she
did not raise a genuine issue of material fact regarding whether NGS had sufficient cause to
terminate her due to her attendance record. She contends that the company lacked cause for
terminating her because it (1) provided her conflicting attendance policies, (2) failed to inform
her that her attendance was a problem, (3) did not enforce its attendance policies uniformly
as required of apprenticeship program sponsors by 29 C.F.R. § 30.3(a)(2), and (4) allowed its
employee to tell her that missing work to care for her sick brother would be “okay” and that
he would “cover for her.” Because we hold that Ominski was a probationary employee under
the CBA whom NGS could terminate without limitation, we need not address these
arguments.

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      NGS responds that the district court correctly concluded that Ominski was
a probationary employee under the CBA and, thus, that NGS could terminate
her employment without cause.         Alternatively, it argues that Ominski’s
attendance violations gave it the requisite cause to terminate her even if it
needed “good” or “just and sufficient” cause to do so.
      Section 301(a) of the LMRA “allows federal district courts to entertain
suits for violation of contracts between an employer and a labor organization,”
such as the CBA. United Paperworkers Int’l Union AFL-CIO, CLC v. Champion
Int’l Corp., 908 F.2d 1252, 1255–56 (5th Cir. 1990). “‘[T]he substantive law to
apply in suits under § 301(a) is federal law, which the courts must fashion from
the policy of our national labor laws.’” Int’l Ass’n of Machinists & Aerospace
Workers Local Lodge 2121 AFL-CIO v. Goodrich Corp., 410 F.3d 204, 213 (5th
Cir. 2005) (quoting Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456
(1957)). “[S]tate law, if compatible with the purpose of section 301,” however,
“may be resorted to in order to find the rule that will best effectuate the federal
policy.” Champion Int’l Corp., 908 F.2d at 1256 (citing Textile Workers Union,
353 U.S. at 457).
      This dispute turns on whether the district court properly concluded as a
matter of law that Ominski was a probationary employee under the CBA who
could be terminated without limitation. In interpreting the CBA, “traditional
rules for contractual interpretation are applied as long as their application is
consistent with federal labor policies.” Id. “However, the construction and
application of a collective bargaining agreement’s terms cannot be strictly
confined by ordinary principles of contract law.” Id. “The provisions of a labor
contract may be more readily expanded by implication than those of contracts
memorializing other transactions.” Id.
      The parties have identified no federal policy that prevents an employer
from terminating its probationary apprentices without limitation. Accordingly,

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“we apply traditional rules of contract interpretation to determine whether the
collective bargaining agreement provides” that Ominski was a probationary
employee who could be discharged without limitation, “keeping in mind the
flexibility accorded the application of those rules in the context of labor
contracts.” Id.
      The interpretation of the CBA is a question of law. D.E.W., Inc. v. Local
93, Laborers’ Int’l Union of N. Am., 957 F.2d 196, 199 (5th Cir. 1992) (citation
omitted). “When several documents represent one agreement, all must be
construed together in an attempt to discern the intent of the parties, and the
court should attempt to give effect to every contractual provision.” Champion
Int’l Corp., 908 F.2d at 1256 (citations omitted). “If the written instrument is
so worded that it can be given a certain or definite legal meaning or
interpretation, then it is not ambiguous, and this Court will construe the
contract as a matter of law.” D.E.W., Inc., 957 F.2d at 199. But “if the contract
is ambiguous, summary judgment is deemed inappropriate because its
interpretation becomes a question of fact.” Id. (citation omitted).
      Article 12, § 2 of the CBA provided that “all new employees covered by this
Agreement shall be considered to be on probation for the first sixty (60) days of
employment exclusive of testing and preparatory training.” In her complaint,
Ominski admitted that, as a pipewelder apprentice, she was a production-and-
maintenance employee within the Union’s bargaining unit that is covered by the
CBA. Hence, when she was hired, Ominski was a “new employee” under Article
12 of the CBA.
      Article 12 provides that “new employees” are on probation until they have
worked sixty days after they have completed their testing and preparatory
training. Here, on the day NGS terminated her apprenticeship, Ominski had not
yet completed the training portion of her apprenticeship; thus, when NGS ended
her employment, Ominski was still a probationary employee under the CBA.

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        Accordingly, because Ominski was a probationary employee when NGS
terminated her employment, the CBA permitted NGS “at its option and without
limitation, [to] transfer, lay off, or dismiss such employee.” Thus, to borrow a
non-conflicting principle from Mississippi law, Ominski was akin to an at-will
employee at the time of her termination under the terms of the CBA. Solomon
v. Walgreen Co., 975 F.2d 1086, 1089 (5th Cir. 1992) (“Mississippi has long
adhered to the common law rule that ‘where there is no employment contract (or
where there is a contract which does not specify the term of the worker’s
employment), the relation[ship] may be terminated at will by either party.’”)
(quoting Perry v. Sears, Roebuck, & Co., 508 So.2d 1086, 1088 (Miss. 1987)).
Under the state’s at-will doctrine, an employer can terminate an employee’s
employment for good reason, a wrong reason, or no reason. Id. at 1089. Thus,
NGS permissively terminated Ominski under the plain terms of the CBA.8
                                          C
        Ominski also challenges the district court’s decision to grant summary
judgment in favor of the Union on her claim that the Union violated its duty of
fair representation. Ominski maintains that she raised a fact issue regarding
whether the Union breached its duty of fair representation by failing to act
reasonably and in good faith when it decided not to represent her and file a
grievance on her behalf pursuant to the procedures of the CBA.
        “A union breaches its duty of fair representation by acting in a
‘discriminatory, dishonest, arbitrary, or perfunctory manner.’” Gutierrez v.
United Foods, Inc., 11 F.3d 556, 559 n.8 (quoting DelCostello, 462 U.S. 151 at
164).       “The doctrine imposes an obligation on the exclusive bargaining
representative ‘to serve the interests of all members [of a designated bargaining
unit] without hostility or discrimination toward any, to exercise its discretion

        8
        We need not address whether NGS had cause to terminate Ominski’s apprenticeship
under the CBA.

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with complete good faith and honesty, and to avoid arbitrary conduct.’” Bache v.
Am. Tel. & Tel., 840 F.2d 283, 289 (5th Cir. 1988) (quoting Vaca, 386 U.S. at 177.
However, “a union does not breach its duty of fair representation by rejecting an
employee’s interpretation of the collective bargaining agreement unless the
union’s interpretation is itself arbitrary or unreasonable.” Id. at 291.
      We hold that the Union did not unreasonably interpret the CBA to classify
Ominski as a probationary employee whose apprenticeship could be terminated
by NGS without limitation. Nor did the Union unreasonably conclude that NGS
terminated Ominski’s apprenticeship for a legitimate reason. The company
provided the Union with (1) the attendance policy signed by Ominski, which only
permitted her two excused absences and no unexcused lost time during her
training, and (2) with undisputed evidence that Ominski had violated both
provisions of the attendance policy. Accordingly, the district court properly
concluded that Ominski failed to raise a genuine issue of material fact regarding
whether the Union violated its duty of fair representation by acting
unreasonably and in bad faith when declining to process her grievance request.
                                        D
      Ominski also appeals the district court’s dismissal of her Mississippi law
negligent misrepresentation claims against both NGS and the Union. In her
second amended complaint, Ominski claimed that she reasonably relied on the
Union’s negligent misrepresentation that she had union representation when
she reported certain safety violations to an NGS safety supervisor. In her
motion for reconsideration of the district court’s summary judgment order, she
asserted several claims of negligent misrepresentation against NGS, primarily
relating to her supervisor’s alleged reassurances that she could “take all the time
she needed upon learning of her brother’s critical accident.”
      To establish a negligent misrepresentation claim under Mississippi law,
a plaintiff must establish the following, by a preponderance of the evidence:

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              (1) [A] misrepresentation or omission of a fact; (2) that
              the representation or omission is material or
              significant; (3) that the person/entity charged with the
              negligence failed to exercise that degree of diligence and
              expertise the public is entitled to expect of such
              persons/entities; (4) that the plaintiff reasonably relied
              upon the misrepresentation or omission; and (5) that
              the plaintiff suffered damages as a direct and
              proximate result of such reasonable reliance.

Horace Mann Life Ins. Co. v. Nunaley, 960 So. 2d 455, 461 (Miss. 2007) (citations
omitted).
       The district court held that Ominski’s negligent misrepresentation claim
against the Union failed as a matter of law because Ominski presented no
evidence that she took any action in reliance on her belief that she would have
Union representation in the event of a conflict with NGS. We agree. The only
action that Ominski allegedly took in reliance on her belief that she had union
representation was expressing safety concerns to an NGS safety officer. But
when asked at her deposition whether she expressed the safety concerns because
she had been told that she would have representation, Ominski responded, “Not
necessarily, no.” Further, she testified that she had no evidence that the safety
officer told anyone else at NGS about her safety concerns. Accordingly, Ominski
failed to raise a fact issue regarding whether she reasonably relied to her
detriment on the Union’s alleged misrepresentation that she would have Union
representation.9




       9
         Because a motion to alter or amend a judgment under Rule 59(e) “cannot be used to
raise arguments which could, and should, have been made before the judgment issued.”
Rosenzweig v. Azurix Corp., 332 F.3d 854, 863–64 (5th Cir. 2003) (citation omitted), Ominski
has waived her negligent representation claims against NGS. Simon v. United States, 891
F.2d 1154, 1159 (5th Cir. 1990).

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                                            E
       Lastly, Ominski contends that NGS violated the equal opportunity
standards contained in 29 C.F.R. § 30.3, which require sponsors of qualifying
apprenticeship programs to “[u]niformly apply rules and regulations concerning
apprentices, including but not limited to, . . . imposition of penalties or other
disciplinary action.” Because Ominski has not alleged that she was terminated
because of her “race, color, religion, national origin, or sex,” the classifications
that the equal opportunity standards protect, see 29 C.F.R. § 30.3, we decline to
hold that NGS violated the equal opportunity standards by discharging a
probationary apprentice for violating an attendance policy—even if, as Ominski
alleged, other apprentices might have violated that policy more seriously.10
                                           III
       For these reasons, we affirm the district court’s order granting summary
judgment in favor of NGS and the Union.




      10
         Accordingly, we need not address Ominski’s assertion that the district court erred
by denying her motion to compel NGS to produce discovery relating to other apprentices’
attendance records. Even had she proven that other apprentices missed more work, she would
not have established a violation of the equal opportunity standards absent an allegation of
discrimination.

                                            13
