This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
International Union of Operating Engineers
Local No. 35, AFL/CIO,
Ramsey County District Court
File No. C3025813
Randall D.B. Tigue, Randall Tigue Law Office, P.A., Minnehaha Professional Building, 3960 Minnehaha Avenue South, Suite 100, Minneapolis, MN 55406 (for appellant)
Andrew D. Parker, Nancy V. Mate, Smith Parker, P.L.L.P., 808 Colwell Building, 123 North Third Street, Minneapolis, MN 55401 (for respondent Metropolitan Council)
Kelly A. Jeanetta, Maurice W. O’Brien, Miller-O’Brien, One Financial Plaza, Suite 2400, 120 South Sixth Street, Minneapolis, MN 55402 (for respondent International Union of Operating Engineers)
Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Daniel Chilefone argues that the district court erred in (1) dismissing appellant’s amended complaint as against both the union and the Metropolitan Council for failure to state a claim upon which relief may be granted; and (2) denying appellant’s motion to vacate the arbitration award. We affirm.
D E C I S I O N
On appeal from a dismissal for failure to state a claim upon which relief can be granted, “a reviewing court must only determine whether the complaint sets forth a legally sufficient claim for relief.” Geldert v. Am. Nat’l Bank, 506 N.W.2d 22, 25 (Minn. App. 1993), review denied (Minn. Nov. 16, 1993) (citation omitted). The facts in the complaint are accepted as true. Pullar v. Indep. Sch. Dist. No. 701, 582 N.W.2d 273, 275-76 (Minn. App. 1998). And whether the plaintiff can prove the facts alleged is immaterial. Stead-Bowers v. Langley, 636 N.W.2d 334, 338 (Minn. App. 2001), review denied (Minn. Feb. 19, 2002). A court may not look outside the pleadings, and the plaintiff has the benefit of all favorable and reasonable inferences. Northern States Power Co. v. Franklin, 265 Minn. 391, 396, 122 N.W.2d 26, 30 (1963). Dismissal of a complaint for failure to state a claim is only proper if there are no facts consistent with the pleading that support the relief demanded. Brakke v. Hilgers, 374 N.W.2d 553, 555 (Minn. App.1985). An appellate court reviews the claim’s legal sufficiency de novo. Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997).
A breach of duty of fair representation occurs only when the union’s representation is “arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190, 87 S. Ct. 903, 916 (1967). Appellant’s amended complaint claims that the union failed to adequately pursue appellant’s legal remedies during the arbitration process in bad faith and in an arbitrary and discriminatory manner. But a claim that the union’s conduct was arbitrary, discriminatory, or done in bad faith must be substantially evidenced by fraud, deceitful action or dishonest conduct on the part of the union. Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Employees of Am. v. Lockridge, 403 U.S. 274, 301, 91 S. Ct. 1909, 1924 (1971). And while Minnesota is a notice pleading state, Minn. R. Civ. P. 9.02 states that all averments of fraud must be stated with particularity.
In Florey v. Air Line Pilots Ass’n Int’l, 439 F. Supp. 165, 172 (D. Minn. 1977), the district court granted a union’s motion to dismiss the plaintiff’s unfair representation claim for failure to state a claim for which relief can be granted. The district court determined that plaintiff’s claim failed because the claim was devoid of any facts that would justify an inference of impermissible motive on the part of the union. Id. at 170. The district court then stated that the plaintiff
* * * must have more than conclusory statements alleging discrimination. In particular plaintiffs must make a showing that the action or inaction * * * complained of was motivated by bad faith, for the gravaman (sic) of the rule is ‘hostile discrimination.’ An allegation that certain conduct of the [Union] * * * is ‘invidious’ and ‘discriminatory,’ without a concomitant identification of lack of good faith, will not set forth a claim * * * .
Id. (emphasis in original)(quotation omitted).
As the district court here properly noted, appellant’s amended complaint only makes a conclusory allegation that the union’s failure to adequately pursue appellant’s legal remedies was done in bad faith and in an arbitrary and discriminatory manner. And conclusory allegations need not be taken as true and do not state a claim for breach of the duty of fair representation. In re Milk Indirect Purchaser Antitrust Litig., 588 N.W.2d 772, 775 (Minn. App. 1999) (stating that “[c]ourts are always able to dismiss pleadings consisting solely of vague or conclusory allegations, wholly unsupported by fact”) (emphasis in original). Nowhere in the amended complaint does appellant identify any specific facts that support an inference that the union acted with a fraudulent, deceitful, or dishonest intent.
At most, appellant’s amended complaint alleges negligent handling of appellant’s grievances. But mere negligence is not sufficient to support a claim for unfair representation. United Steelworkers of Am., AFL-CIO-CLC v. Rawson, 495 U.S. 362, 372-73, 110 S. Ct. 1904, 1911 (1990). In addition, failing or refusing to process a grievance does not state a claim for breach of the duty of fair representation, even if the underlying grievance was meritorious. Vaca, 386 U.S. at 194-95, 87 S. Ct. at 919.
We thus conclude that the district court properly dismissed appellant’s claim of unfair representation against the union for failure to state a claim upon which relief can be granted.
The district court, relying on Eisen v. State, Dep’t of Pub. Welfare, 352 N.W.2d 731 (Minn. 1984), determined that appellant lacked standing to challenge the arbitrator’s award in favor of the Metropolitan Council. We review de novo the legal issue of standing. Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).
The collective bargaining agreement (CBA) between the union and the Metropolitan Council established an arbitration procedure that allowed the union, not the individual employee, to bring grievances against the Metropolitan Council. In Eisen, the supreme court held that under the Public Employment Labor Relations Act and the Uniform Arbitration Act, unless the CBA provides otherwise, “an individual employee may not appeal an unfavorable award where the union expressly determines not to appeal.” Eisen, 352 N.W.2d at 736. Here, the union declined to appeal the arbitration award. Thus, the district court properly found that appellant lacked standing to vacate the arbitration award.
Appellant contends that even if he is not allowed to vacate the arbitration award, he is still permitted to bring a claim against the Metropolitan Council for wrongful discharge. Appellant contends that it would be unjust to force him to rely on the union to appeal the arbitrator’s decision in favor of the Metropolitan Council when he is alleging that the union breached its duty of fair representation during the arbitration process.
But following the arbitration award, appellant’s only remaining claim was against the union. The arbitration award was dispositive of all of appellant’s claims against the Metropolitan Council. The award addressed and resolved all issues regarding the propriety of the drug test that occurred in January 2001, the validity of the last chance agreement that was signed in April 2001, and the sufficiency of the grounds for appellant’s termination in June 2001. And the union declined to appeal that award. Because appellant lacked standing to vacate the arbitration award, appellant’s sole remedy in this situation was to bring a claim against the union for breaching its duty of fair representation during the arbitration process. See id.
Appellant argues that under the National Labor Relations Act (NLRA), in a situation such as this, an employee is permitted to bring a claim against both the union and the employer. See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 163-64, 103 S. Ct. 2281, 2290 (1983)(holding that an employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding, when the union representing the employee in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation). We disagree.
First, appellant’s claim against the Metropolitan Council does not arise under the NLRA. But even if we applied the rule under the NLRA here, in order for appellant’s claim against the Metropolitan Council to proceed, appellant must be able to prove as part of its case against it that the union breached its duty of fair representation in its handling of appellant’s grievance. Vaca, 386 U.S. at 185-86, 87 S. Ct. at 914; see also Paoletti v. Northwestern Bell Telephone Co., 370 N.W.2d 672, 674 (Minn. App. 1985) (holding that employee must first establish as an essential element of his claim against the employer that his union acted improperly in deciding not to appeal his grievance). And we have already concluded that appellant’s claim that the union breached its duty of fair representation was properly dismissed for failure to state a claim upon which relief may be granted.
Second, even assuming appellant could bring a separate statutory claim of wrongful discharge against the Metropolitan Council despite the finality of the arbitration award and despite appellant’s inability to demonstrate that the union breached its duty of fair representation, appellant’s claim was still properly dismissed for failure to state a claim upon which relief may be granted. Under the terms of the last chance agreement, which appellant signed, appellant agreed that he would be terminated if he violated any terms of the last chance agreement. In addition, the agreement stated that following appellant’s termination, he could only challenge whether he actually violated the terms of the agreement. It is well established that a person may waive a statutory right. Stephenson v. Martin, 259 N.W.2d 467, 470 (Minn. 1977). And by signing the last chance agreement, appellant waived his statutory rights to challenge any grievances that occurred prior to the signing of that agreement. Therefore, appellant gave up his statutory right to claim that the January 2001 drug test violated Minnesota law and that he signed the last chance agreement under duress.
Finally, appellant has no legally sufficient claim for relief based on the fact that appellant was not allowed to independently test the three diluted urine samples that were taken after appellant signed the last chance agreement. That issue was decided by the arbitrator. And as previously discussed, appellant lacks standing to vacate the arbitration award.