SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX

SILVER JACKSON,

PLAINTIFF,
SX-14-CV-092
v.
ACTION FOR DAMAGES FAILURE
UNITED INDUSTRIAL WORKERS OF SEAFARES | TO REPRESENT

INTERNATIONAL UNION AFL-CIO,
Cited as: 2020 VI SUPER 028 U
DEFENDANT.

Appearances:

Eszart A Wynter, Sr., Esq.

Law Office of Eszart A. Wynter Sr., P.C.
St. Croix, USVI

For the Plaintiff

John J. Merchant, Esq.

United Industrial Workers of the Seafares
St. Croix, USVI

For the Defendant

MEMORANDUM OPINION

WILLOCKS, Presiding Judge

THIS MATTER is before the Court on Defendant United Industrial Workers of
Seafares International Union AFL-CIO (hereinafter “Union™) Motion for Summary Judgment
(hereinafter “Motion’) filed on May 18, 2016. The Plaintiff Silver Jackson (hereinafter
“Plaintiff’) filed an Opposition (hereinafter “Opposition”) on March 1, 2017.

BACKGROUND

According to the Complaint, on October 6, 2006, the Plaintiff began working for the
Government of the Virgin Islands (hereinafter “Government”) with the Department of Human
Services (hereinafter “DHS”). (Compl. © 6.) Sometime later the relationship between the
Plaintiff and her employer began to deteriorate. As a result, on December 19, 201 1, the Plaintiff

was informed that her employment would be suspended for one week, (/d. ¢ 24.) The Union as
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the exclusive bargaining representative for all Government employees, including the Plaintiff,
filed a demand for arbitration due to the Plaintiff's termination. (/d. J 10.) On June 1, 2012, the
Plaintiff learned that the demand for arbitration had been withdrawn without. (/d. J 10.)
Consequently, the Plaintiff filed the present Complaint alleging that the Union breached the
contract and its duty of fair representation under the Collective Bargaining Agreement
(hereinafter “CBA”) between the parties.

STANDARD OF REVIEW
q7 Motions for summary judgment are governed by Virgin Islands Rule of Civil Procedure
56.’ A motion for summary judgment shall be granted, “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.”? “As to materiality, only those facts that ‘might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.’
48 “The moving party bears the initial burden of pointing out to the court that there is no
genuine issue of material fact”-—or in other words, “an absence of evidence to support the
nonmoving party's case,* The non-moving party then has the burden of setting out specific
facis showing a genuine issue for trial.” [he court may consider the cited materials and other
materials in the record.® But “the court may not weigh the evidence or determine the credibility
of witnesses.”” The Court “must consider the record evidence in the light most favorable to the

non-moving party.”8 “The court must satisfy itself that the evidence in the summary judgment

'V.LR. Civ. P, 56,

2V1. R. Civ. P. 56(a); see Rymer vy. Kmart Corp., 68 V.1. LEXIS 571, 575 (V.1. 2018)(°A summary judgment
movant is entitled to judgment as a matter of law if the movant can demonstrate the absence of a triable issue of
material fact in the record.”); see also Walters v. Walters, 60 V.1. 768, 794 (V.£. 2014) (citations omitted); see
also Martin v. Martin, 54 V.1. 379, 387 (2010){(citations omitted).

3 Rymer, 68 V.1. LEXIS 575

4 Williams v. United Corp., 50 V.1. 191, 194 (V1. 2008) (citations omitted).

3 Rymer, 68 V.1. LEXIS 575-76

® VIR. Civ. P 36(c\(3).

"See Williams, 50 V.4. at 194-95.

® Rymer, 68 V.1. LEXIS 576
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record supports this relief”? Summary judgment is a “drastic remedy, a court should only grant
summary Judgment when the ‘pleadings, the discovery and disclosure materials on file, and
any affidavits, show there is no genuine issue as to any material fact.’"'”

In the Complaint, the Plaintiff alleges hybrid claims: breach of contract (Count 1) and
breach of fair representation. The Supreme Court of the Virgin Islands has held that in order to
succeed under hybrid claims the plaintiff/employer must establish all the elements for both a
breach of contract and breach of duty of fair representation.!'

DISCUSSION
A. Breach of Contract

The Union claims that summary judgment is appropriate because its withdrawal of the
Plaintiff's grievance did not constitute a breach of contract. According to the Union as the
exclusive bargaining representative of DHS employees it has the broad discretion to decide
how to pursue an employee’s grievance against an employer. (Mot. at 3.) However, the Plaintiff
contends that although the Union acknowledges that it abandoned the Plaintiff's grievance
claims there are still genuine issues of material fact as to whether the Union failure to contact
the Plaintiff prior to settling her grievance constitutes a breach of contract.

“To succeed on a breach of contract claim, a plaintiff must show that: (1) there was an

agreement, (2) a duty was created by that agreement, (3) there was a breach of that duty, and

(4) damages resulted.”"!*

° Vanterpool v. Gov't of the ¥.1, 63 V1, 563, 583 (V1. 2015).

0 See Rymer, 

: see also Martin, 54 V.1, at 386.

"' Joseph, 54 V.1. at 655; See Grisar v, American Federation of Teachers, 2016 V.1. LEXIS 200 at *7 (Super.
Ct. V.I. Dec. 5, 2016) (citing Gomes v. Government of Virgin Islands, 

 (3d Cir. 1989) (“[A]n
employee proceeding under 24 V.I.C. § 361-383 must bring both a claim against the public employer for breach
of contract and a claim against the union for breach of fair representation simultaneously. The employee may, if
he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the
other, or both.”).

? Phillip v. Marsh-Monsanto, 66 V.1, 612, 621 (V.I. 2017) (citing Brouillard v. DLJ Mortg. Capital, inc., 

 (V.1. 2015)
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fraudulently worked hours during time she had requested off and met with the Plaintiff multipie
times during February 2012 and March 2012 to discuss the discovery received. (/d.)

In contrast, the Plaintiff claims that the Union’s decision to withdraw her demand for
arbitration regarding the Plaintiff's grievance was a breach of its duty of fair representation
because it failed to pursue the Plaintiff's claim in the Superior Court. (Opp'n. at 5.) In addition,
because there is a heightened duty to pursue member’s constitutional rights the Union’s failure
to pursue such grievance is per se arbitrary and in bad faith. (/d.)

The Supreme Court of the Virgin Islands has held that in order to establish a claim for
a breach of fair representation, the plaintiff must “pled sufficient facts to permit a plausible
inference that the union acted in an arbitrary, discriminatory, or in bad faith.'+ “To establish
that a union acted arbitrarily in refusing to process a grievance, an employee must show that
the decision is so unreasonable that it is “without rational basis or exptanation.”'

In the present matter, the Plaintiff claims that the Union's withdrawal of her grievance
was per se arbitrary and in bad faith. However, after considering the evidence, the Court finds
that the Plaintiff has failed to prove that the Union actions were such. Despite the Plaintiff's
assertions, the Union has presented evidence that the Plaintiff's claims lacked merit. Therefore,
it was not only in the best interest of the Plaintiff but other Government employees that the
Union representatives withdraw the grievance rather than attempt to defend conduct that is a
direct violation of one’s employment.'® Furthermore, the Union’s decision to discontinue the

Plaintiff's grievance also does not constitute bad faith. Because the Union has broad discretion

'* Grisar vy. American Federation of Teachers, 2016 V.1. LEXIS 200 at *8 (V.[. Super. Ct. Dec. 5, 2016)
(quoting Joseph v. Bureau of Corrections, 54 V1. 644 at *655 (V.1. 2011)

'S Acota v. Hovensa, LLC, 57 V1. 792 at **804 (D.V.L. 2012) (citing Marquez y. Screen Actors Guild. Inc., 

 (1998),

'6 See Acota v. Havensa, LLC, 57 V.1. 792 at **805 (D.V.L. 2012) (citing Cross v. United Auto Workers, Local
£762, 450 F, 3d 844, 847 (8th Cir. 2006) (“A union owes a duty to all members of the bargaining unit, therefore
the union has the affirmative duty not to press grievances which the union believes, in good faith, do not warrant
such action.””).
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in determining whether to pursue an employee’s grievance deciding not to continue with a
grievance does not limit one’s procedural right when the Union has reasonable basis. Here it is
evident that the Union's decision was reasonable given the evidence it obtained during
discovery. Moreover, the Union failure to inform the Plaintiff personally does not constitute
bad faith as a mere oversight does not rise to a level of unreasonableness to constitute a breach
of fair representation. Thus, the Plaintiff has failed to establish that the Union’s decision was
arbitrary or done in bad faith. Therefore, there is no genuine issue as to any material fact
regarding part two of Plaintiff's hybrid claim. As a result, summary judgment in favor of the
Union is appropriate, as it has established that there are no genuine issues as to any material
facts regarding both hybrid claims.
CONCLUSION

Having determined that summary judgment is appropriate as to both the claim of breach
of contract and breach of fair representation, summary judgment will be granted in favor of the
Union. Consequently, the Plaintiffs Complaint shall be dismissed. An order consistent with

this memorandum opinion shall follow.

DONE and so ORDERED this day of February 2020.
ATTEST: ' ti 7 Lee
Tamara Charles HAROLD W.L. WILLOCKS
Clerk of the Court Presiding Judge of the Superior Court

By:

Court Clerk Supervisor

Dated: