United States District Court, D. New Jersey
Michael Vazquez., U.S.D.J.
Attilio Ciarla sues United Government Security Officers of
America, International Union ("International
Union") and United Government Security Officers of
America, Local 315 ("Local 315") (collectively,
"Defendants" or "Union") for breach of the
duty of fair representation. Currently pending before the
Court is Defendants' motion to dismiss Plaintiffs
Complaint. D.E. 8. The Court reviewed the parties'
submissions and decided the motion without oral
argument pursuant to Fed.R.Civ.P. 78(b) and L. Civ. R.
78.1(b). For the following reasons, Defendants' motion to
dismiss Plaintiffs Complaint is GRANTED.
following facts are taken from Plaintiffs Complaint, D.E. 1
("Complaint" or "Compl."). In September
2009, Plaintiff became employed as a detention officer for
CoreCivic, Inc. ("CoreCivic") at the Elizabeth
Detention Center. Compl. ¶ 2. International Union and
Local 315, collectively, constituted the Union for employees
of CoreCivic. Id. ¶ 3. Plaintiff was a member
of the Union. Id, ¶2. In March 2017, the Union
entered into a collective bargaining agreement with CoreCivic
on behalf of CoreCivic's employees, including Plaintiff.
Id. ¶ 3; Ex. A.
his employment from September 2009 to May 2018, Plaintiff
received three disciplinary notices, called "Problem
Solving Notices" ("PSN"). Id. ¶
7. Plaintiffs first PSN occurred in June 2012, whereby
Plaintiff was suspended by CoreCivic for five days after
inmates became ill while playing card games during Plaintiffs
shift. Id. ¶ 8; Ex. B. Thereafter, Plaintiff
was involved in a mediation with a female detention officer,
O.M. Id. ¶ 10. The mediation was conducted at
the request of Local 315. Id. It was determined that
over a course of six months, Plaintiff had provided O.M. with
gifts while at work, including "lotion at Christmas, 
cookies and candy from the venting [sic] machine and a dozen
roses close to or on Valentine's Day." Id.
Local 315 and O.M. indicated that these gifts were unwanted,
but Plaintiff contends that he "gratuitously and
generously in a non-harassing matter, gifted these
items" to O.M. Id. After the mediation,
Plaintiff agreed to cease his gift-giving to O.M., and
thereafter they "avoided contact and conversation."
Id. ¶ 11.
second PSN occurred in April 2018, after Plaintiff spoke to
O.M. concerning an incident where she had knocked on
"the dorm window where [Plaintiff] was positioned"
and waved to a detainee. Id. ¶ 13. Plaintiff
explained to O.M. the risks associated with her actions and
"instructed her to never do that again."
Id. ¶ 14. As a result of this encounter, O.M.
reported Plaintiff for harassment, supporting her position
with written statements by visitors who allegedly witnessed
the exchange. Id. Consequently, Plaintiffs second
PSN was for violation of CoreCivic's Code of Ethics and
Business Conduct and Workplace Harassment Policy.
Id. ¶ 15; Ex. C. Plaintiff received a notice of
termination for his second PSN. Id.
third PSN occurred in May 2018 because Plaintiff was sleeping
on duty. Id. ¶ 16. Plaintiff received a
separate, additional notice of termination for his third PSN.
Id. Thereafter, Plaintiff was informed that he
should no longer report to work. Id. ¶ 17.
Plaintiff then contacted his union representative, Andre
Rogers,  to inquire about filing a grievance and to
request the evidence CoreCivic used in its determination to
terminate Plaintiffs employment. Id. On June 19,
2018, Local 315 filed its grievance on behalf of Plaintiff
contesting his termination. Id. ¶ 18; Ex. E.
The Union's grievance and request for Plaintiffs
reinstatement was denied by CoreCivic on July 5, 2018. Ex. F.
On August 13, 2018, the Union notified Plaintiff that it had
reviewed the facts and accompanying documents concerning his
grievance, and in turn, made the decision "to not
proceed to [arbitration with [Plaintiffs] case." Ex. G,
The Union informed Plaintiff that the reason for not
proceeding to arbitration was threefold: (1) "[t]he
discipline taken by [CoreCivic] was for just cause according
to company policy"; (2) "[t]he [investigation
satisfied the burden of proof and [Plaintiffs] termination
was [for] [j]ust [c]ause"; and (3) Plaintiffs
"[v]iolation of Workplace Harassment Policy."
Id. Plaintiff contends that he "was subjected
to an unfair labor practice during his grievance [process]
and was not properly represented by [the Union]." Compl.
¶ 22. As a result, Plaintiff claims that the Union
breached its duty of fair representation.
filed his Complaint on November 7, 2018, claiming that
Defendants breached the duty of fair representation. D.E. 1.
On December 20, 2018, the Union moved to dismiss Plaintiffs
Complaint, with prejudice. D.E. 8. Plaintiff filed
opposition, D.E. 14, to which the Union replied, II.
STANDARD OF REVIEW
Rule of Civil Procedure 12(b)(6) permits a motion to dismiss
for "failure to state a claim upon which relief can be
granted[.]" For a complaint to survive dismissal under
Rule 12(b)(6), it must contain sufficient factual matter to
state a claim that is plausible on its face. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible "when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. Further, a plaintiff must
"allege sufficient facts to raise a reasonable
expectation that discovery will uncover proof of her
claims." Connelly v. Lane Const. Corp., 809
F.3d 780, 789 (3d Cir. 2016). In evaluating the sufficiency
of a complaint, district courts must separate the factual and
legal elements. Fowler v. UPMC Shadyside, 578 F.3d
203, 210-211 (3d Cir. 2009). Restatements of the elements of
a claim are legal conclusions, and therefore, not entitled to
a presumption of truth. Burtch v. Milberg Factors,
Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court,
however, "must accept all of the complaint's
well-pleaded facts as true." Fowler, 578 F.3d
at 210. Even if plausibly pled, however, a complaint will not
withstand a motion to dismiss if the facts alleged do not
state "a legally cognizable cause of action."
Turner v. J.P. Morgan Chase & Co., No. 14-7148,
2015 WL 12826480, at *2 (D.N.J. Jan. 23, 2015).
LAW AND ANALYSIS
duty of fair representation is inferred from unions'
exclusive authority under the National Labor Relations Act...
to represent all employees in a bargaining unit."
Chauffeurs, Teamsters & Helpers, Local No. 391 v.
Terry, 494 U.S. 558, 563 (1990) (citing Vaca v
Sipes, 386 U.S. 171, 177 (1967)). The duty operates
"as abulwark to prevent arbitrary union conduct against
individuals stripped of traditional forms of redress by the
provisions of federal labor law." DelCostello v.
Int'l Bhd. of Teamsters, 462 U.S. 151, 164 n.14
(1983) (quoting Vaca, 386 U.S. at 182) (internal
quotation marks omitted). The duty mandates that a union
"serve the interests of all members without hostility or
discrimination toward any, to exercise its discretion with
complete good faith and honesty, and to avoid arbitrary
conduct." Vaca, 386 U.S. at 177. The duty
applies to the bargaining process between the union and
employer, as well as the subsequent enforcement of the
collective bargaining agreement. Chauffeurs, Teamsters
& Helpers, Local No. 391, 494 U.S. at 563.
Accordingly, the union is "required to pursue [its
members'] grievances in a manner consistent with the
principles of fair representation." Id.
however, the duty of fair representation "does not
confer on an employee an absolute right to force [the union]
to press [the employee's] complaint all the way to the
very end of the grievance procedures made possible by the
collective bargaining agreement." Bazarte v. United
Transp. Union, 429 F.2d 868, 872 (3d Cir. 1970). As the
Third Circuit explained in Bazarte:
The union has an obligation in exercising its power as
bargaining agent to act fairly under the collective
bargaining agreement and not to assert or press grievances
which it believes in good faith do not warrant such action.
An employee, therefore, is subject to the union's
discretionary power to settle or even to abandon a grievance,
so long as it does not act arbitrarily, and this is true even
if it can later be demonstrated that the employee's claim
was meritorious. It is therefore essential to [a] plaintiffs
claim that there [be] proof of "arbitrary or bad-faith
conduct on the part of the [u]nion in processing [the
employee's] grievance." It ...