when the claims against the Union and employer are not factually or legally analogous.
B. Whether plaintiff cannot prevail on his claim against the Union since he did not prevail on his claim against his employer
The Union contends that the Supreme Court and Seventh Circuit have held that an employee cannot prevail on only one aspect of a hybrid claim, but must prevail on both aspects. See United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 62, 101 S. Ct. 1559, 1563-64, 67 L. Ed. 2d 732 (1981); Ooley v. Schwitzer Div., Household Mfg., Inc., 961 F.2d 1293, 1303-04 (7th Cir.), cert. denied, 506 U.S. 872, 113 S. Ct. 208, 121 L. Ed. 2d 148 (1992); White v. General Motors Corp., 1 F.3d 593, 595 (7th Cir. 1993). The holdings of these cases are narrower than the Union makes them out to be.
These cases actually hold that when an employee's cause of action against both his employer and union is based on the same occurrence or grievance, the employee cannot prevail on the fair representation claim based on the union's failure to process the employee's grievance if the grievance itself, and therefore the employee's claim against the employer, lacks merit. See, e.g., Ooley, 961 F.2d at 1304 (citing Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71, 96 S. Ct. 1048, 1059, 47 L. Ed. 2d 231 (1976); United Steelworkers of America v. Nat'l Labor Relations Board, 692 F.2d 1052, 1057 (7th Cir. 1982); Nat'l Labor Relations Board v. Eldorado Mfg. Corp., 660 F.2d 1207, 1214 (7th Cir. 1981) ("liability for failure to process discharge grievances cannot attach unless the grievances would have been meritorious and unless the Union's failure to process was in bad faith")). See also White, 1 F.3d at 594-95 (where plaintiffs failed to present facts showing they were entitled to adjusted seniority dates, thereby making their breach of collective bargaining claim meritless, their breach of duty of fair representation claim based on same issue also was meritless).
This is so because the employee suffers no injury when the union fails to process a meritless grievance. Ooley, 961 F.2d at 1304 (citing United Steelworkers, 692 F.2d at 1058 ("since there was no finding that the grievance had merit, it cannot be said that the Union caused any damage...."); Graf v. Elgin, Joliet and Eastern Ry. Co., 697 F.2d 771, 776 (7th Cir. 1983) ("a union's failure to represent a worker in the grievance process injures him only if his grievance has merit -- only if the collective bargaining agreement has been violated....")).
This court did not find that the grievances that form the basis of plaintiff's breach of duty of fair representation claim were without merit. To the contrary, plaintiff's grievance against his employer regarding his firing was resolved in his favor, and so presumably had merit. The court has no definitive information regarding the outcome of plaintiff's grievance regarding his benefits. Nonetheless, it is uncontested that plaintiff eventually received all of the benefits to which he was entitled. Thus, plaintiff's grievance over benefits apparently had merit and was decided in his favor. Accordingly, the foregoing cases are inapposite to plaintiff's case.
Consequently, the Union cannot bootstrap its motion for summary judgment on the court's granting of summary judgment in favor of the employer.
C. Other grounds for summary judgment in favor of the Union
Ironically, because plaintiff apparently succeeded on his grievances, the Union may be entitled to summary judgment on a basis not raised by the Union. Several Seventh Circuit cases have held that an employee has no cause of action against his union for breach of duty of fair representation if the employee has suffered no harm by the alleged breach. See Souter v. Int'l Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 72, 993 F.2d 595, 598 (7th Cir. 1993) (summary judgment for union properly granted where union represented employee in grievance process, and employee won grievance against employer); Garcia v. Zenith Elec. Corp., 58 F.3d 1171, 1180 (7th Cir. 1995) (employee failed to show that outcome of case would have been different had the union not breached its duty of fair representation).
It seems that even if the Union failed to represent plaintiff fairly and adequately on his grievances, plaintiff was not harmed by the Union's breach of its duty of fair representation because plaintiff ultimately either succeeded in getting what he sought through his grievances or was not yet entitled to what he sought.
However, since the Union has not raised this ground for summary judgment, plaintiff has not had an opportunity to respond to it. Therefore, the court will not grant summary judgment sua sponte, but the Union is free to file another motion for summary judgment raising this or any other meritorious issue.
For the foregoing reasons, the court denies the Union's motion for summary judgment.
Date: NOV 08 1996
JAMES H. ALESIA
United States District Judge
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