Rebecca Groves; Jonathan Hadden v. COMMUNICATION WORKERS OF AMERICA, Communication Workers of America District 3

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1854
REBECCA GROVES; JONATHAN HADDEN,
Plaintiffs - Appellants,
v.
COMMUNICATION WORKERS OF AMERICA, Communication Workers of
America District 3; COMMUNICATION WORKERS OF AMERICA, LOCAL
3702,
Defendants – Appellees,
and
AT&T MOBILITY LLC,
Defendant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Timothy M. Cain, District Judge.
(8:12−cv−03329−TMC)
Argued: October 27, 2015 Decided: March 10, 2016
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Keenan and Judge Wynn joined.
ARGUED: Jeffrey Parker Dunlaevy, STEPHENSON & MURPHY, LLC,
Greenville, South Carolina, for Appellants. Tessa Addie-Lee
Warren, QUINN, CONNOR, WEAVER, DAVIES & ROUCO, LLP, Decatur,

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Georgia, for Appellees. ON BRIEF: Nancy Jo Thomason, Anderson,
South Carolina, for Appellees.

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DIAZ, Circuit Judge:
Section 301 of the Labor Management Relations Act, 29
U.S.C. § 185, allows litigants to bring “[s]uits for violation
of contracts between an employer and a labor organization” in
federal district court. Usually, an employee who wants to sue
his employer for a violation of a collective bargaining
agreement must first exhaust the contractual remedies in that
agreement. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53
(1965). “The reasoning behind this rule is simple. Federal
labor law policy favors adjustment by the parties of disputes
arising under a collective bargaining agreement.” Amburgey v.
Consolidation Coal Co., 923 F.2d 27, 29 (4th Cir. 1991).
However, in a so-called hybrid § 301 action, an employee
may forego exhaustion by showing “both 1) that the union
breached its duty of fair representation and 2) that his
employer violated the collective bargaining agreement.”
Thompson v. Aluminum Co. of Am., 276 F.3d 651, 656 (4th Cir.
2002).* A union breaches its duty of fair representation “if its
actions are either ‘arbitrary, discriminatory, or in bad
* While the employee must satisfy both prongs, he need not
sue both his employer and his union. DelCostello v. Int’l Bhd.
of Teamsters, 462 U.S. 151, 165 (1983) (“The employee may, if he
chooses, sue one defendant and not the other; but the case he
must prove is the same whether he sues one, the other, or
both.”).

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faith.’” Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65,
67 (1991) (quoting Vaca v. Sipes, 386 U.S. 171, 190 (1967)).
Rebecca Groves and Jonathan Hadden (collectively,
“Plaintiffs”) sued their employer, AT&T Mobility (“AT&T”); their
union, Communications Workers of America, District 3 (“CWA”);
and CWA’s local affiliate, Local 3702, under § 301. Plaintiffs
alleged that AT&T breached their collective bargaining agreement
by wrongfully terminating Plaintiffs’ employment, and that CWA
and Local 3702 breached their duty of fair representation by
failing to inform Plaintiffs of a settlement offer for that
termination. Plaintiffs and AT&T settled, and the district
court granted CWA and Local 3702’s motion for summary judgment.
Because we find that Plaintiffs’ allegations cannot form the
basis of a hybrid § 301 suit, we affirm.
I.
A.
Plaintiffs began working for AT&T as retail sales
consultants in Anderson, South Carolina, in December 2008. Both
became members of CWA and Local 3702 (collectively, the
“Union”). On March 27, 2010, CWA, as the exclusive bargaining
representative for Plaintiffs, entered into a collective
bargaining agreement with AT&T that was effective until February
7, 2014.

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Article 7 of the agreement set out the required grievance
procedure for allegations “that an employee has been
discharged . . . or otherwise disciplined without just cause.”
J.A. 35. Any grievance not resolved or addressed “informally
with the first level of [m]anagement” had to be submitted by the
Union to AT&T in writing within forty-five days of “the action
complained of.” Id. The agreement also provided that
“[f]ailure to submit or pursue a grievance under the conditions
and within the time and manner stated above shall be construed
to be a waiver by the employee and the Union of the formal
grievance.” J.A. 36. Where such waiver occurred, the Union
could only grieve by “appeal[ing] to arbitration and ask[ing]
the arbitrator to decide the timeliness issue before addressing
the merits.” J.A. 47.
New employees received copies of the collective bargaining
agreement and were informed of their right to file grievances at
their orientations. Both Plaintiffs attended an orientation.
Groves received a copy of the agreement, while Hadden does not
recall if he did.
Hadden and Groves were fired on May 31, and June 2, 2012,
respectively, for failing to meet sales goals after receiving
previous disciplinary warnings. Neither Hadden nor Groves
contacted the Union about the earlier warnings or about their
terminations and neither filed a grievance. AT&T does not

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notify the Union that it has fired a Union member; generally,
the Union learns of a termination only when the employee
requests that the Union file a grievance.
On August 22, 2012, Steve Frost, the executive director of
labor relations at AT&T, emailed Betty Witte, CWA administrative
director, to explain that AT&T had discovered in July that the
reports from April and May 2012 that had led to the termination
of sixteen employees, including Plaintiffs, were flawed. Frost
asked Witte to reach out to the affected employees to let them
know that AT&T was offering them a settlement of either $2,500
and reinstatement, or $5,000 without reinstatement. He asked
for a response by August 31.
Witte forwarded this email to Gerald Souder, a staff
representative for CWA. On August 24, Souder forwarded the
email to Les Powell, the president of Local 3702, asking him to
contact Plaintiffs, and noting “[t]here may or may not be . . .
a grievance filed.” J.A. 115. Souder emailed Powell again on
September 19 because he had received no response.
Local 3702 had membership cards for Plaintiffs with their
contact information, but Powell admits that he made no attempt
to contact Plaintiffs because they had not filed grievances or
otherwise communicated with the Union. Souder attested that he
was “under the impression Local 3702 had been unable to contact

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Plaintiffs,” J.A. 45, but Powell stated that he never told
Souder that he could not locate Plaintiffs.
Groves later learned of the settlement offers independently
and informed Hadden. Both contacted Souder, who told them that
only the $5,000 offer without reinstatement remained on the
table. Plaintiffs each expressed a preference for reinstatement
and a desire to file a grievance. Souder responded that there
was no provision for filing a grievance beyond the forty-five-
day limit.
B.
Plaintiffs sued AT&T and the Union under § 301 of the Labor
Management Relations Act, 29 U.S.C. § 185, alleging that AT&T
breached the collective bargaining agreement by firing them on
the basis of faulty data, and that the Union breached the duty
of fair representation by failing to inform them of the
settlement offers. Plaintiffs settled with AT&T, and they were
reinstated to their former positions in March 2013.
Plaintiffs moved for partial summary judgment as to
liability, and the Union moved for summary judgment. After a
hearing, the district court denied Plaintiffs’ motion and
granted the Union’s motion. The court held that a threshold
requirement for a § 301 action was to establish that the Union
“breached [its] duty so as to prevent Plaintiffs from exhausting
their claims under the [collective bargaining agreement] against

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AT&T.” Groves v. AT&T Mobility, LLC, No. 8:12-3329-TMC, 2014 WL
3809665, at * 3 (D.S.C. Aug. 1, 2014). Because Plaintiffs
“argue[d] only that the Union[] failed to timely notify them of
the settlement before it expired”—and not that “the Union
breached a duty of fair representation in regard to any
grievances”—Plaintiffs failed to meet that threshold. Id.
This appeal followed.
II.
The central question raised by this appeal is whether a
hybrid § 301 suit can properly be used to challenge union
conduct that, though obstructive, did not contribute to the
employees’ failure to exhaust their contractual remedies for the
employer’s conduct. Because such use would extend the hybrid
§ 301 suit beyond its logical scope, we hold that it cannot.
A.
We review a district court’s grant or denial of summary
judgment de novo. Hunter v. Town of Mocksville, 789 F.3d 389,
395 (4th Cir. 2015), cert. denied 136 S. Ct. 897 (2016).
Summary judgment is appropriate when, viewing the facts in the
light most favorable to the nonmoving party, id., “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a).

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B.
The hybrid § 301 action exists to avoid the “unacceptable
injustice” that would occur if an employee were required to
exhaust his contractual remedies even though “the union
representing the employee in the grievance/arbitration procedure
act[ed] in such a discriminatory, dishonest, arbitrary, or
perfunctory fashion as to breach its duty of fair
representation.” DelCostello v. Int’l Bhd. of Teamsters, 462
U.S. 151, 164 (1983).
The Supreme Court has repeatedly framed the hybrid § 301
action as a solution to that specific injustice: an employee
unable to exhaust contractual remedies because of his union’s
breach of the duty of fair representation. Thus, in Vaca v.
Sipes, the Court held that an “employee may seek judicial
enforcement of his contractual rights” where “the union has sole
power under the contract to invoke the higher stages of the
grievance procedure, and if . . . the employee-plaintiff has
been prevented from exhausting his contractual remedies by the
union’s wrongful refusal to process the grievance.” 386 U.S. at
185. Similarly, in Hines v. Anchor Motor Freight, Inc., the
Court explained that because the contractual remedies for an
employer’s mistreatment of an individual employee are “at least
in their final stages controlled by union and employer,” the
hybrid § 301 action provides an alternative remedy in cases

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where the union “refuse[s] to utilize [the contractual remedies]
or, if it does [utilize them], assertedly [does] so
discriminatorily or in bad faith.” 424 U.S. 554, 564 (1976).
Our sister circuits have placed express and implied
limitations on the use of the hybrid § 301 action that align
with that understanding of its purpose. For example, the First
and Sixth Circuits both have causal nexus requirements for
hybrid § 301 claims. See Blesedell v. Chillicothe Tel. Co., 811
F.3d 211, 221 (6th Cir. 2016) (“In addition to proving
arbitrary, discriminatory, or bad-faith conduct, a hybrid-claim
plaintiff must prove that a union’s actions or omissions ‘more
than likely affected’ the outcome of the grievance procedure.”
(quoting Dushaw v. Roadway Express, Inc., 66 F.3d 129, 132 (6th
Cir. 1995))); Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 20
(1st Cir. 2003) (“To reach this [hybrid § 301] safe harbor, the
claimant must prove an erroneous discharge, a breach of duty on
the union’s part, and a causal nexus between the two, that is,
‘that [the] union’s breach of its duty “seriously undermine[d]
the integrity of the [grievance] process.”’” (alterations in
original) (quoting United Parcel Serv., Inc. v. Mitchell, 451
U.S. 56, 61 (1981))). The Second Circuit has repeatedly defined
hybrid § 301 actions as involving claims “that the union
breached its duty of fair representation in redressing [the
employee’s] grievance against the employer.” White v. White

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Rose Food, 128 F.3d 110, 113 (2d Cir. 1997); see also McKee v.
Transco Prods., Inc., 874 F.2d 83, 86 (2d Cir. 1989) (“A hybrid
[§ 301] case is one in which the employee has a cause of action
against both the employer and the union. . . . The claim against
the union is that the union did not properly represent the
employee in pressing his grievance against the employer.”).
C.
Consistent with these cases, we hold that a hybrid § 301
claim requires an allegation that the union’s breach of its duty
of fair representation played some role in the employee’s
failure to exhaust his contractual remedies. This understanding
of the hybrid § 301 claim best accords with the Supreme Court’s
articulation of the claim’s purpose, and our sister circuits’
limitations on the claim. To hold otherwise would transform the
hybrid § 301 suit from a safeguard for wronged employees whose
unions fail to assert the employees’ rights, to a tool to bypass
the normal exhaustion rule for claims against an employer, any
time employees also have some unrelated claim against their
union.
Here, Plaintiffs do not allege that the Union’s conduct
prevented them from grieving their terminations under the
collective bargaining agreement. And because Plaintiffs did not
file a grievance with the Union, the Union did not know that
Plaintiffs were terminated—and therefore did not have an

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opportunity to discover that AT&T’s data was flawed—until after
the contractual period for filing a grievance had passed. The
Union’s failure to contact Plaintiffs regarding the settlement
offers was irresponsible at best, and certainly prevented
Plaintiffs from accepting AT&T’s original reinstatement offer.
However, having waived their right to grieve, Plaintiffs were
not entitled to that offer under the collective bargaining
agreement, and the Union’s conduct therefore had nothing to do
with their failure to vindicate their rights through the
contractually designated procedures.
Plaintiffs contend that because they told the Union they
wanted to file grievances as soon as they learned about the
faulty data, they “were as diligent in pursuing their
contractual remedies as they possibly could have been.”
Appellants’ Br. at 16. This is, at base, a complaint about the
terms of the collective bargaining agreement, which requires
grievances to be filed within forty-five days “of the action
complained of,” and does not have any provision for tolling
where the underlying facts were unknown or undiscoverable. J.A.
35. Plaintiffs do not allege the Union breached its duty of
fair representation in negotiating the collective bargaining
agreement, and they thus are bound by its terms.
We do not decide today that an employee must always have
attempted to grieve before he can bring a hybrid § 301 claim.

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In a case where an employee’s failure to invoke the grievance
process was caused by the union’s breach of the duty of fair
representation, a hybrid § 301 claim might well be viable. We
simply hold that there must be some causal nexus between a
union’s breach of its duty of fair representation and an
employee’s failure to exhaust contractual remedies.
Our holding is consistent with those cases that have
allowed a hybrid § 301 claim involving a union’s breach of the
duty of fair representation in its negotiation or amendment of
the collective bargaining agreement. See Lewis v. Tuscan Dairy
Farms, Inc., 25 F.3d 1138 (2d Cir. 1994); Adkins v. Int’l Union
of Elec., Radio, & Mach. Workers, 769 F.2d 330 (6th Cir. 1985).
In such cases, the employees are not attacking specific actions
by the employers as inconsistent with the collective bargaining
agreement, but rather the terms of the collective bargaining
agreement itself and the union’s role in crafting it. Where
that occurs, the union’s breach would be causally connected to
the employee’s failure to exhaust, because requiring the
employee to exhaust the allegedly flawed contract’s remedies,
controlled by the allegedly breaching union, would be an
“unacceptable injustice.” DelCostello, 462 U.S. at 164.
We hasten to add that our decision does not leave employees
without a remedy on these facts, as Plaintiffs could have
brought a stand-alone breach of the duty of fair representation

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claim against the Union. See O’Neill, 499 U.S. at 67 (“[T]he
rule announced in [Vaca]—that a union breaches its duty of fair
representation if its actions are either ‘arbitrary,
discriminatory, or in bad faith’—applies to all union
activity . . . .” (quoting 386 U.S. at 190)); Breininger v.
Sheet Metal Workers Int’l Ass’n Local Union No. 6, 493 U.S. 67,
86-87 (1989) (“The duty of fair representation . . . arises
independently from the grant under . . . the [National Labor
Relations Act] . . . of the union’s exclusive power to represent
all employees in a particular bargaining unit. It serves as a
‘bulwark to prevent arbitrary union conduct against individuals
stripped of traditional forms of redress by the provisions of
federal labor law.’” (quoting Vaca, 386 U.S. at 182)).
III.
Because the undisputed facts make it clear that any breach
of the Union’s duty of fair representation did not contribute to
Plaintiffs’ failure to exhaust their contractual remedies, we
affirm the district court’s judgment.
AFFIRMED

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