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Aug. 18 — A Jewel Food Stores Inc. receiving clerk in Chicago fired for taking a 25-pound bag of birdseed in a cart past the supermarket’s last checkout point has a duty-of-fair-representation claim against the union that declined to arbitrate her discharge, the U.S. Court of Appeals for the Seventh Circuit ruled ( Rupcich v. Food & Commercial Workers Local 881 , 2016 BL 266756, 7th Cir., No. 14-3377, 8/17/16 ).
The decision is significant because union-represented workers typically don’t have much recourse against unions that decide not to take grievances to arbitration, said Neal Zazove, the lawyer who represented Patricia Rupcich, the fired employee.
“There’s very little case law” that favors union members on fair representation claims in that context, Zazove told Bloomberg BNA Aug. 18.
The appeals court also found United Food and Commercial Workers Local 881 failed to take steps the collective bargaining agreement made mandatory by not completing the first three steps of the grievance process, Zazove said.
That Rupcich was a 25-year store employee with a good record and was fired for theft after what all the parties seemed to acknowledge was an “inadvertent work mistake” also influenced the court’s decision, Zazove said.
Jewel defined employee theft as an offense that requires no showing of intent, the company said. But the appeals court said that standard wasn’t communicated to employees and appeared to contradict the employer’s own past practice, Zazove said.
Rupcich therefore raised a triable issue that Local 881 acted arbitrarily by not pursuing her grievance to arbitration, Judge Michael S. Kanne wrote in an opinion joined by Judges Ilana Diamond Rovner and Colin S. Bruce.
The Seventh Circuit reversed a district court’s dismissal of Rupcich’s claims against Jewel and the union under Section 301 of the Labor-Management Relations Act.
The union on appeal argued it should have “complete discretion” regarding what grievances to take to arbitration, Zazove said. But the Seventh Circuit decided that’s not the case, he said.
Rupcich also may pursue a claim that Jewel breached its collective bargaining agreement with Local 881 by firing her, the court said.
Attorneys representing the union and Jewel Foods didn’t immediately respond Aug. 18 to Bloomberg BNA’s requests for comment.
The Karmel Law Firm represented UFCW Local 881. Franczek Radelet PC represented Jewel Food Stores Inc.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/Rupcich_v_Food_and_Commercial_Workers_Local_881_No_143377_2016_BL.
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