United States District Court, E.D. North Carolina, Eastern Division
DONNIE R. GREEN and GLENN MALCOLM DAVIS, Plaintiffs,
GREYHOUND LINES, INC. and AMALGAMATED TRANSIT UNION LOCAL 1700, Defendants.
C. DEVER III UNITED STATES DISTRICT JUDGE
December 21, 2018, Donnie R. Green ("Green") and
Glenn Malcolm Davis ("Davis"; collectively
"plaintiffs") filed a complaint against Greyhound
Lines, Inc. ("Greyhound") and Amalgamated Transit
Union Local 1700 ("ATU"; collectively
"defendants") under Section 301 of the Labor
Management Relations Act of 1947 ("LMRA"), 29
U.S.C. § 185 [D.E. 2]. On February 6, 2019, defendants
moved to dismiss plaintiffs' complaint [D.E. 14, 16] and
filed memoranda in support [D.E. 15, 17]. On March 13, 2019,
plaintiffs filed an amended complaint [D.E. 24]. On March 27,
2019, defendants moved to dismiss plaintiffs' amended
complaint for failure to state a claim upon which relief can
be granted [D.E. 29, 31] and filed memoranda in support [D.E.
30, 32]. On April 17, 2019, plaintiffs responded in
opposition [D.E. 33-36]. Defendants replied [D.E. 37, 3 8].
On May 28, 2019, the court denied as moot defendants'
motions to dismiss plaintiffs' original complaint [D.E.
39, 40]. As explained below, the court grants the
defendants' motions to dismiss and dismisses
plaintiffs' amended complaint.
worked as bus drivers for Greyhound for approximately twenty
years. See Am. Compl. [D.E. 24] ¶¶ 12-14.
Plaintiffs reported to work in Raleigh, North Carolina, but
they lived approximately one to two hours away from Raleigh.
See Id. ¶¶ 12, 15, 17. Plaintiffs also
were members of ATU and were subject to a collective
bargaining agreement ("CBA") between Greyhound and
AT U.See Id. ¶¶ 8, 11. The CBA provided
that employees may be disciplined only for "just
cause." [D.E. 24-1] 12; see [D.E. 24] ¶¶ 20,
34. The CBA established a three-step grievance procedure for
ATU to contest employee discipline decisions. See [D.E. 24-1]
13-14; [D.E. 24] ¶ 38. In the case of employee
termination, the CBA provided for an expedited grievance
process. See [D.E. 24-1] 13 ("Discharge grievances must
be initially filed at Step 2."). If ATV did not agree
with the outcome of the grievance process, the CBA also
provided a mechanism by which ATU could refer disciplinary
matters to arbitration. See Id. at 13-14; [D.E. 24]
who lived far from Raleigh often used a company credit card
to pay for hotels after shifts. See [D.E. 24] ¶¶
17, 19. According to plaintiffs, their former supervisor Abe
Jones ("Jones") approved this custom "to
prevent unsafe driving to the [p]laintiffs' homes."
Id. ¶ 17. In total, plaintiffs allege that
eight drivers used their company credit cards to pay for
hotel rooms. See Id. ¶ 19. In March 2018,
Kerwin Washington ("Washington") replaced Jones as
plaintiffs' supervisor. See Id. ¶ 18.
Plaintiffs allege that Washington did not approve of drivers
using their company credit card to pay for hotels but did not
notify plaintiffs of this fact. See id: ¶¶ 18, 35.
Thus, plaintiffs claim that they had no notice that using a
company credit card to pay for hotel rooms violated
Greyhound's policies. See id. ¶ 35.
19, 2018, Greyhound terminated Green. See Id ¶
l3. On May 22, 2018, Greyhound terminated Davis. See
Id. ¶ 14. Greyhound terminated plaintiffs (and
another driver) for violating company policy, violating a
driver rule concerning mishandling of company funds, and
theft. See Id. ¶¶ 16, 19, 22. Plaintiffs
allege that Greyhound only terminated three out of eight of
the drivers who regularly used a company credit card to pay
for hotels. See Id. ¶¶ 19, 22.
believed that Greyhound terminated them without just cause
and sought assistance from ATU to contest their terminations.
See Id. ¶¶ 20-21, 26. Plaintiffs allege
that, after Green's termination, a union representative
assured Green that "everyone would get his job
back." Id. ¶ 25. Nevertheless, plaintiffs
allege that "ATU did not investigate the
terminations" and that Davis could not reach a union
representative after his termination. Id.
¶¶ 23-24. A union representative filed a Step 3
grievance on behalf of the plaintiffs, but plaintiffs allege
that the representative did not meet with plaintiffs before
filing the grievance and did not provide plaintiffs with
copies of the grievances. See Id.
¶¶26-27.30. Additionally, plaintiffs allege that
Davis could not attend his Step 3 meeting because of
"jury duty" and defendants refused to reschedule to
accommodate his scheduling conflict. Id.
¶¶ 28-29. Plaintiffs did not successfully resolve
their grievances using the procedures under the CBA. On
August 30, 2018, ATU notified plaintiffs that ATU's
Executive Board discussed plaintiffs' grievances and
decided not to refer their grievances to arbitration. See
[D.E. 24-1] 81-82; [D.E. 24] ¶ 53.
March 13, 2019, plaintiffs filed an amended complaint against
Greyhound and ATU [D.E. 24]. Plaintiffs allege a hybrid
action under Section 301 of the LMRA: (1) a claim of breach
of a CBA against Greyhound and (2) a claim of breach of the
duty of fair representation against AT U.See Id.
motion to dismiss under Rule 12(b)(6) tests the
complaint's legal and factual sufficiency. See
Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell
All. Corp. v. Twombly. 550 U.S. 544, 555-63 (2007);
Coleman v. Md. Court of Appeals. 626 F.3d 187, 190
(4th Cir. 2010), affd, 566 U.S. 30 (2012); Nemet
Chevrolet Ltd. v. Consumeraffairs.com. Inc., 591 F.3d
250, 255 (4th Cir. 2009); Giarratano v. Johnson, 521
F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6)
motion, a pleading "must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face." Iqbal. 556 U.S. at 678
(quotation omitted); see Twombly, 550 U.S. at 570;
Giarratano, 521 F.3d at 302. In considering the
motion, the court must construe the facts and reasonable
inferences "in the light most favorable to the
[nonmoving party]." Massey v. Ojanjit, 759 F.3d
343, 352 (4th Cir. 2014); see Clatterbuck v. City of
Charlottesville. 708 F.3d 549, 557 (4th Cir. 2013),
abrogated on other grounds by Reed v.
Town of Gilbert. 135 S.Ct. 2218 (2015). A court need not
accept as true a complaint's legal conclusions,
"unwarranted inferences, unreasonable conclusions, or
arguments." Giarratano. 521 F.3d at 302
(quotation omitted); see Iqbal. 556 U.S. at 678-79.
Rather, plaintiffs' allegations must "nudge[ ] their
claims," Twombly. 550 U.S. at 570, beyond the
realm of "mere possibility" into
"plausibility." Iqbal. 556 U.S. at 678-79.
evaluating a motion to dismiss, a court considers the
pleadings and any materials "attached or incorporated
into the complaint." E.I. du Pont deNemours &
Co. v. Kolon Indus.. Inc.. 637 F.3d 435, 448 (4th Cir.
2011); see Fed.R.Civ.P. 10(c); Thompson v. Greene.
427 F.3d 263, 268 (4th Cir. 2005). A court may consider a
document submitted by a moving party if it is "integral
to the complaint and there is no dispute about the
document's authenticity." Goines v. Valley Cmty.
Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016). A court
also may take judicial notice of public records without
converting the motion to dismiss into a motion for summary
judgment. See, e.g.. Fed.R.Evid. 201(d);
Tellabs. Inc. v. Makor Issues & Rights. Ltd..
551 U.S. 308, 322 (2007); Philips v. Pitt Cty. Mem'l
Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
individual employee may bring suit against his employer for
breach of a collective bargaining agreement."
DelCostello v. Int'l Bhd, of Teamsters, 462 U.S.
151, 163 (1983); see 29 U.S.C. § 185(a). To bring a
claim for breach of a CBA, however, an employee must
"attempt to exhaust any grievance or arbitration
remedies provided in the" CBA. Del Costello,
462 U.S. at 163. Because an employee is dependent on his or
her union to represent the employee in such processes,
"this rule works an unacceptable injustice 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." M. at 164; see Vaca v.
Sipes, 386 U.S. 171, 177, 181-83, 186 (1967); Groves
v. Cnmmc'n Workers of Am., 815 F.3d 177, 181 (4th
Cir. 2016); Bryant v. Bell Atl. Md.. Inc., 288 F.3d
124, 131 n.3 (4th Cir. 2002); Buckner v. United Parcel
Serv., Inc. No. 5:09-CV-411-BR, 2010 WL 2889586, at *4
(E.D. N.C. July 21, 2010) (unpublished), affd. 489
Fed.Appx. 709 (4th Cir. 2012) (per curiam) (unpublished).
Accordingly, courts impose a duty of fair representation on
unions in representing employees in grievance or arbitration
proceedings. See Hines v. Anchor Motor Freight Inc..
424 U.S. 554, 564 (1976); Groves. 815 F.3d at 181.
employee may bring suit against both the employer and the
union, notwithstanding the outcome or finality of the
grievance or arbitration proceeding," if a union fails
to fairly represent an employee in addressing employee
grievances. DelCostello. 462 U.S. at 164; see
Vaca. 386 U.S. at 186; Groves. 815 F.3d at
181. Courts generally refer to such an action as a hybrid
301/fair representation action or a "hybrid 301"
action. See, e.g., DelCostello 462 U.S. at 165;
Thompson v Aluminum Co. of Am., 276 F.3d
651, 656 (4th Cir. 2002); Terry v. Chauffeurs,Teamsters & Helpers. Local 391, 863
F.2d 334, 337-38 (4th Cir. 1988), affd.494 U.S. 558
(1990). To state a hybrid 301 claim, an employee must
plausibly allege both (1) that the union breached its duty of
fair representation and (2) that the employer violated the
CBA. See DelCostello. 462 U.S. at 164-65; Thomas v.
Siemens VDO Auto. Corp.. 142 Fed.Appx. 743, 749 (4th
Cir. 2005) (per curiam) (unpublished); Thompson. 276
F.3d at 656. An employee must first prevail on an unfair
representation claim against a union before litigating the
merits of a breach of ...