NOT RECOMMENDED FOR PUBLICATION

File Name: 16a0631n.06

No. 16-1467

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ROBERT DAVIS, 

Plaintiff-Appellant,

v.

PROFESSIONAL REPRESENTATIVES 

ORGANIZATION and MICHIGAN AFSCME 

COUNCIL 25 AFL-CIO, 

Defendants-Appellees.

)

)

)

)

)

)

)

)

)

)

)

ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF MICHIGAN

OPINION

BEFORE: McKEAGUE, KETHLEDGE, and STRANCH, Circuit Judges.

JANE B. STRANCH, Circuit Judge. Robert Davis pled guilty to two felonies for 

embezzling nearly $200,000 from a school district whose employees were represented by his 

employer, defendant AFSCME. After the guilty plea, but three months before judgment was 

entered, AFSCME fired Davis. Davis brought a hybrid action under § 301 of the National Labor 

Relations Act against the union representing him, the Professional Representatives Organization 

(PRO), alleging that it breached its duty of fair representation, and against AFSCME, alleging 

that it violated the collective bargaining agreement (CBA) between PRO and AFSCME by 

wrongfully terminating him. The factual allegations in Davis’s complaint are insufficient to 

show that his guilty plea did not give AFSCME just cause to fire him. Because Davis

insufficiently alleged wrongful termination, we AFFIRM the district court’s grant of AFSCME’s 
No. 16-1467

Davis v. Prof’l Representatives Org.

-2-

motion to dismiss, the corresponding dismissal of Davis’s hybrid claim against PRO, and the 

denial of Davis’s motion for reconsideration.

I. BACKGROUND

In 2007, Davis used his position as a school board member to embezzle $197,983 from 

the Highland Park School Board, while his employer, AFSCME, was representing employees of 

the Highland Park School District. In late August 2014, as Davis was considering a plea offer, 

Davis and his criminal defense attorney met with AFSCME’s president and legal counsel. They 

advised Davis and his attorney of AFSCME’s position that federal law, 29 U.S.C. § 504, 

prohibited AFSCME from continuing to employ Davis if he pled guilty. Davis’s attorney 

disputed the correctness of that legal position, arguing that Davis would not be deemed 

“convicted” for purposes of § 504, and thus would not be subject to its bar on union 

employment, until the judge entered a criminal judgment. Nonetheless, according to Davis’s 

complaint, AFSCME’s president advised Davis that he would “take the advice of . . . AFSCME’s 

legal counsel and err on the side of caution and immediately terminate Plaintiff Davis from his 

employment if Plaintiff Davis decided to accept the Government’s plea offer to plead guilty to 

two felonies.” R. 47, PageID 698–99.

Davis pled guilty to two felony counts on September 2, 2014. The following day, 

AFSCME removed Davis from his duties, suspended him without pay, and scheduled a 

disciplinary hearing. On September 18, following a disciplinary hearing with representatives of 

both AFSCME and PRO, AFSCME terminated Davis’s employment for reasons related to his 

guilty plea. On December 18, the district court sentenced Davis to serve eighteen months in a 

minimum security camp. The district court signed and entered the criminal judgment against 

Davis on December 29.
No. 16-1467

Davis v. Prof’l Representatives Org.

-3-

Immediately following his September 18 disciplinary hearing, Davis requested that PRO 

file a grievance against AFSCME, which PRO filed and pursued in accordance with the 

grievance procedure set forth in the CBA. AFSCME denied the grievance. Davis then requested 

that PRO pursue arbitration of his grievance. PRO rejected Davis’s request to pursue arbitration, 

citing the Department of Labor’s interpretation of 29 U.S.C. § 504, which PRO read to 

immediately bar Davis’s employment in his union position. Davis appealed that rejection to 

PRO’s Executive Board, which voted not to reverse the rejection. According to his complaint, 

Davis then attempted to appeal the Executive Board’s decision to the membership at large, but 

did not have the opportunity to do so. Davis’s complaint alleged that he learned through private 

conversations at the time that some members and officers of PRO were attempting to stall or 

derail his attempts to have his grievance arbitrated, and that some members had a personnel 

dislike for Davis. The Executive Board’s prior rejection notwithstanding, on December 5, PRO

filed a demand with the American Arbitration Association for arbitration of Davis’s grievance;

however, in February 2015, Davis learned that PRO had withdrawn this arbitration demand as a 

result of Davis’s prison sentence.

Davis sued AFSCME and PRO in a hybrid action under § 301 of the National Labor 

Relations Act for wrongful termination and breach of the duty of fair representation, 

respectively. Davis seeks back pay, wages, and benefits from AFSCME for a period of less than 

four months from September 3, 2014 (the date of his suspension without pay) through December 

29, 2014 (when the district court entered the judgment against him). The district court granted 

AFSCME’s motion to dismiss under Fed. R. Civ. P. 12(b)(6) and dismissed all of Davis’s claims,

including those against PRO. The district court found that the 29 U.S.C. § 504 bar on continued 
No. 16-1467

Davis v. Prof’l Representatives Org.

-4-

union employment could be read to have gone into effect upon Davis’s guilty plea, thereby 

authorizing or requiring AFSCME to terminate Davis when it did. Davis timely appealed.

II. ANALYSIS

This circuit reviews de novo a district court’s decision to grant a motion to dismiss under 

Fed. R. Civ. P. 12(b)(6). Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 629 (6th Cir. 

2009). Statutory interpretation also receives de novo review. United States v. Brown, 639 F.3d 

735, 737 (6th Cir. 2011).

To survive a motion to dismiss a hybrid action under § 301, a plaintiff must show both 

his employer’s breach of the CBA and his union’s breach of the duty of fair representation. 

DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 165 (1983). “Unless a plaintiff 

‘demonstrates both violations, he cannot succeed against either party.’” Garrison v. Cassens 

Transp. Co., 334 F.3d 528, 538 (6th Cir. 2003) (quoting Bagsby v. Lewis Bros. Inc. of Tenn., 

820 F.2d 799, 801 (6th Cir. 1987)). Here, Davis must have alleged facts showing both that 

(1) AFSCME breached its CBA with PRO by wrongfully terminating him and (2) PRO breached

its duty of fair representation to Davis.

The district court dismissed Davis’s claims against both defendants because it found that 

Davis failed to sufficiently allege wrongful termination in breach of the CBA. Whether Davis 

sufficiently alleged wrongful termination is the sole issue for consideration on appeal. The CBA 

permitted AFSCME to terminate employees for “just cause.” Davis raises only one argument on 

appeal as to why AFSCME did not have “just cause” to terminate him after his guilty plea: he 

argues that 29 U.S.C. § 504, upon which AFSCME relied in terminating him, did not require his 

termination until judgment was entered against him on the criminal charges.
No. 16-1467

Davis v. Prof’l Representatives Org.

-5-

In general terms, § 504 prohibits persons “convicted” of listed felonies from serving in 

certain union positions for thirteen years. 29 U.S.C. § 504(a). If a convicted person continues to 

serve in a prohibited union position after that date, § 504 penalizes both the convicted person and

any person who retains or employs the convicted person in the prohibited union position with a 

fine of up to $10,000 or imprisonment of up to five years. 29 U.S.C. § 504(a), (b). The 

regulations implementing § 504 allow unions to set stricter standards, including “extending the 

period of disability” (the bar from union employment) beyond that established by § 504. 29 

C.F.R. § 452.34.

A. Just Cause For Termination Under The CBA

The CBA between AFSCME and PRO, which covered the employment of Davis, 

provides that “all disciplinary actions shall be for just cause.” R. 16-2, PageID 220. It 

continues:

In keeping with the concept of just cause, discipline, where appropriate, will be 

progressive in nature, except that nothing in this Article shall prevent the 

Employer from taking immediate and appropriate disciplinary action should it be 

required by the circumstances, with proper written notice thereof to the Union at 

the time such immediate action is taken.

Id. The CBA also gives AFSCME “the sole and exclusive right to manage its offices, determine 

the size of its work force, and direct its affairs and work force . . . .” Id. at 217.

Davis’s complaint argued that AFSCME did not have “just cause” to terminate him on 

September 18, 2014. Davis, however, made no allegations regarding what the parties to the 

CBA intended the term “just cause” to mean. Instead, the complaint made the following 

conclusory allegation: “Davis claims that Defendant AFSCME did not have ‘just cause’ to so 

terminate Plaintiff Davis on September 18, 2014. ‘Just cause’, as contained in Article 9, Section 

1 of the CBA did not exist with respect to Plaintiff Davis’ facts and situation on September 18, 
No. 16-1467

Davis v. Prof’l Representatives Org.

-6-

2014.” R. 47, PageID 710. Davis followed this allegation with citations to two exhibits: (1) the

grievance PRO filed with AFSCME on his behalf; and (2) his letter appealing PRO’s rejection of 

his request to pursue arbitration. Id. The grievance filed by PRO was brief and did not include 

any factual allegations explaining why AFSCME did not have just cause to terminate Davis. 

Davis’s letter appealing PRO’s rejection of his arbitration request challenged only PRO’s legal 

determination that 29 U.S.C. § 504 barred Davis’s employment as of his guilty plea. These two 

exhibits and the brief allegations regarding just cause in the complaint provide the entire basis 

upon which Davis’s wrongful termination claim stands.1

Davis’s argument thus boils down to a single allegation: AFSCME lacked just cause 

because it misinterpreted 29 U.S.C. § 504, which Davis contends did not bar his employment 

until the date judgment was entered against him. In his brief on appeal, Davis only makes 

arguments about the proper interpretation of § 504—he does not address “just cause” directly at 

all.

Davis’s allegations below and his briefing on appeal are insufficient to show that 

AFSCME wrongfully terminated Davis in breach of the CBA. Davis’s single argument, that 

AFSCME did not have just cause because it misinterpreted § 504’s mandate, lacks merit. 

Regardless of what § 504 might mandate, the question here is whether the CBA permitted

AFSCME to terminate Davis after his guilty plea. AFSCME risked a $10,000 fine, and its 

officers risked imprisonment, if they continued to retain Davis as an employee in violation of 

 

1Davis also alleged in his complaint that many union leaders and members lobbied AFSCME to 

retain his employment even after his guilty plea, and that AFSCME selected Davis to represent it 

at a Harvard program after his indictment (but before his guilty plea). The complaint argued that 

this continued support demonstrated that his guilty plea did not risk disrepute to AFSCME, and 

thus disrepute could not be a basis for just cause. Davis does not raise this argument on appeal, 

but even if he had, the opinions of some union leaders and members in support of Davis are 

irrelevant to whether Davis’s guilty plea gave AFSCME just cause to end his employment.
No. 16-1467

Davis v. Prof’l Representatives Org.

-7-

§ 504. 29 U.S.C. § 504(a), (b). As discussed in detail below, the Department of Labor’s 

interpretation of the statute and caselaw could reasonably lead AFSCME to conclude that it was 

legally prohibited from continuing to employ Davis after his guilty plea. AFSCME gave Davis 

fair warning, based on the advice of counsel, that its interpretation of § 504 required it to 

terminate him if he pled guilty, and he chose to do so anyway.

The regulations implementing § 504, moreover, allow unions to set stricter standards. 29 

C.F.R. § 452.34. Therefore, regardless of whether § 504 itself barred Davis’s employment as of 

his guilty plea, the law permitted AFSCME to consider Davis ineligible from an earlier date than 

§ 504. AFSCME’s good-faith interpretation of § 504, along with its right to set stricter standards 

for itself, provided just cause for Davis’s termination after his guilty plea. Davis has alleged no 

fact showing that the CBA did not permit AFSCME, in the face of its own potential liability, to 

interpret § 504 cautiously or rely on its right to set stricter standards. Davis’s allegations of 

wrongful termination in breach of the CBA are thus insufficient and the Rule 12(b)(6) motion of

AFSCME was properly granted.

B. “Conviction” Under 29 U.S.C. § 504

Although Davis has failed to allege a breach of the CBA, to the extent that the 

interpretation of 29 U.S.C. § 504 is relevant here, legal authorities suggest that the § 504 bar may 

well have applied to Davis as of his guilty plea. Section 504(a) states:

No person . . . who has been convicted of . . . embezzlement, grand 

larceny . . . [or] any felony involving abuse or misuse of such person’s position or 

employment in a labor organization . . . shall serve or be permitted to serve—

. . . (5) in any capacity, other than in his capacity as a member of such labor 

organization, that involves decisionmaking authority concerning, or 

decisionmaking authority over, or custody of, or control of the moneys, funds, 

assets, or property of any labor organization, during or for the period of thirteen 

years after such conviction or after the end of such imprisonment, whichever is 

later, unless the sentencing court on the motion of the person convicted sets a 

lesser period of at least three years after such conviction or after the end of such 
No. 16-1467

Davis v. Prof’l Representatives Org.

-8-

imprisonment, whichever is later . . . . No person shall knowingly hire, retain, 

employ, or otherwise place any other person to serve in any capacity in violation 

of this subsection.

29 U.S.C. § 504(a) (emphasis added). The act further states that “[a] person shall be deemed to 

have been ‘convicted’ and under the disability of ‘conviction’ from the date of the judgment of 

the trial court, regardless of whether that judgment remains under appeal.” 29 U.S.C. 

§ 504(c)(1) (emphasis added).

By its text, § 504’s prohibition begins on “the date of the judgment of the trial court.” Id. 

The question, then, is whether the “date of the judgment of the trial court” refers only to the date 

on which the district court signed and entered the formal criminal judgment, or whether 

“conviction” and “judgment” have broader meaning and include guilty pleas. Without offering 

any supporting cases, Davis argues that § 504(c) on its face gives “conviction” a narrow 

definition that plainly excludes a guilty plea.

The Department of Labor’s Office of Labor-Management Standards (OLMS) states its 

official interpretation of § 504 on its website: “For purposes of Section 504, a judgment of 

conviction includes a finding or plea of guilty, or an equivalent procedure, such as a plea of no 

contest to a disqualifying crime described in Section 504, and a sentence or other punitive 

disposition of the case by the trial court.” Office of Labor-Mgmt. Standards, U.S. Dep’t of 

Labor, Prohibition against Certain Persons Holding Union Office or Employment, 

https://www.dol.gov/olms/regs/compliance/504unionoffhold.htm (last updated Mar. 5, 2013).

The district court found § 504’s text inconclusive and looked to its legislative history to 

identify its purpose. “Courts have unanimously held that § 504 must be given broad application 

in light of the Congressional intent to purge the labor movement of its criminal element . . . [and] 

have refused to put form ahead of substance.” Davis v. Prof’l Representatives Org., No. 15-

10767, 2016 WL 1054505, at *3 (E.D. Mich. Mar. 16, 2016) (quoting Illario v. Frawley, 426 F. 
No. 16-1467

Davis v. Prof’l Representatives Org.

-9-

Supp. 1132, 1137 (D.N.J. 1977)). The district court also looked to OLMS’s official 

interpretation of § 504. The district court read the OLMS statement to refer to two options that 

can constitute a judgment of conviction: either a plea or equivalent procedure, or a punitive 

disposition such as a sentence. Id. at*4. Davis argues instead that the statement means only that 

a guilty plea plus a sentence (or an equivalent procedure plus a sentence) constitutes a conviction 

for § 504—and thus that a guilty plea by itself does not. Although the OLMS statement’s intent 

is not entirely clear, we agree that the district court’s reading is logical. If OLMS intended that a 

judgment of conviction meant only a plea plus a sentence, it would be strange to use the word 

“includes,” which suggests the introduction of a non-exhaustive list. To the extent that the 

statement is ambiguous, it was reasonable for AFSCME to interpret it broadly to protect itself 

from potential liability, especially given the broad interpretation of § 504 in the caselaw.

In the only court-of-appeals case to directly address the bounds of a “conviction” for 

purposes of § 504, Judge Posner, writing for the Seventh Circuit, held that “conviction” in § 504 

includes a guilty plea followed by a sentence of probation without a judgment of conviction 

(under Iowa’s deferred-judgment procedure). Harmon v. Teamsters, Chauffeurs & Helpers 

Local Union 371, 832 F.2d 976, 980 (7th Cir. 1987). Harmon found the text of § 504 

inconclusive, and looked to the statute’s legislative history to define its purpose. Id. at 978–79. 

“The word ‘conviction’ is a chameleon” wrote Judge Posner, such that “it would be fruitless to 

try to decide this case by reference to a settled meaning for the term.” Id. at 978. The Supreme 

Court has noted that “conviction” has different meanings in different states and under different 

federal statutes. Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 112 & n.6 (1983); accord

Transp. Workers Union of Am., AFL-CIO v. Transp. Sec. Admin., 492 F.3d 471, 473 (D.C. Cir. 

2007). The Tenth Circuit, for example, held that a conviction occurs upon entry of a guilty plea 
No. 16-1467

Davis v. Prof’l Representatives Org.

-10-

for purposes of forfeiting time on parole, but it held two years later that a conviction for purposes 

of adjudicating juvenile delinquency occurs not upon the plea but upon the entry of judgment.

Compare DeCuir v. U.S. Parole Comm’n, 800 F.2d 1021, 1023 (10th Cir. 1986), with United 

States v. Steven W., 850 F.2d 648, 649 (10th Cir. 1988). Furthermore, the Supreme Court (albeit 

long ago) said that a “plea of guilty . . . is itself a conviction.” Kercheval v. United States, 

274 U.S. 220, 223 (1927). This analysis supports our determination that AFSCME acted 

reasonably to protect the union and its officers by assuming that a guilty plea may constitute a 

conviction.

Davis also argued in the district court (but less clearly on appeal) that his position is

supported by a letter he received from the Department of Labor regarding the duration of his bar 

from union employment. However, the letter merely calculates the end date of his bar, without 

commenting on the start date. The letter states that his bar will extend thirteen years from the 

end of his imprisonment, because that is later than the date of his conviction. The letter does 

suggest that its author, Ian Burg, a District Director for the OLMS Division of Enforcement, 

thought “conviction” could refer to Davis’s sentencing rather than his guilty plea, but the letter 

also specifically states that the technical date of Davis’s conviction is irrelevant for determining 

the prohibition’s end date. As the district court noted, the letter provides no indication that the 

Department of Labor considered whether a guilty plea qualified as a conviction in this case, 

because it was unnecessary for the subject of the letter. Therefore, the district court correctly 

held that this letter was insufficient support for Davis’s interpretation of § 504.

Davis has no other arguments or caselaw supporting his interpretation. The weight of 

agency interpretation, legislative history, and caselaw suggests that AFSCME’s interpretation 

that § 504 could apply at the time of Davis’s uncontested guilty plea was reasonable. And the 
No. 16-1467

Davis v. Prof’l Representatives Org.

-11-

implementing regulations authorize a union to impose a stricter ban. In light of these authorities 

and because AFSCME and its officers faced a legitimate risk of a substantial fine or 

imprisonment for violating § 504 if they retained Davis, AFSCME had just cause to terminate 

him and did not breach the CBA.

C. Duty Of Fair Representation

Because Davis failed to adequately allege that AFSCME breached the CBA, we need not 

reach the question of whether he adequately alleged that PRO breached its duty of fair 

representation. See Garrison, 334 F.3d at 538 (noting that a plaintiff cannot succeed on either 

claim without establishing both).

D. Motion For Reconsideration

Davis also appeals the district court’s denial of his motion for reconsideration under 

Local Rule 7.1(h) and Fed. R. Civ. P. 59(e) and for relief from judgment under Fed. R. Civ. P. 

60(b)(2). This court reviews Rule 59(e) and Rule 60(b) decisions for abuse of discretion. Clark

v. United States, 764 F.3d 653, 661 (6th Cir. 2014); Franklin v. Jenkins, 839 F.3d 465, 472 (6th 

Cir. 2016). Davis argues that a new email he received from Mr. Burg after the district court’s 

decision constituted “newly discovered evidence” that is “controlling and clearly would have 

produced a different result if presented before the original judgment.” HDC, LLC v. City of Ann 

Arbor, 675 F.3d 608, 615 (6th Cir. 2012) (quoting Good v. Ohio Edison Co., 149 F.3d 413, 423 

(6th Cir. 1998)) (explaining the Rule 60(b)(2) standard).

The email Davis received from Mr. Burg following the district court’s judgment stated 

that: “For purposes of the Section 504 bar, the date someone is sentenced, not the guilty plea or 

guilty verdict date, is known as the conviction date.” R. 76-2, PageID 1146. This statement 

neither controls nor would have produced a different result. It does not control because it was 
No. 16-1467

Davis v. Prof’l Representatives Org.

-12-

not promulgated by the agency in the exercise of rule-making authority, and thus does not merit 

Chevron deference. See United States v. Mead Corp., 533 U.S. 218, 226–27 (2001) (interpreting 

Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc. 467 U.S. 837 (1984)). Instead, this email is 

merely persuasive, and its weight is to be judged in part by the thoroughness of its reasoning. Id.

at 221, 235 (citing Skidmore v. Swift & Co., 323 U.S. 134 (1944)). The email includes no 

reasoning or basis for Mr. Burg’s statement, severely limiting its persuasiveness. It also would 

not have produced a different result because, as discussed above, AFSCME was within its rights 

to terminate Davis to avoid the risk of potential liability under § 504, regardless of the OLMS’s 

position. The district court did not abuse its discretion by denying Davis’s motion for 

reconsideration.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s grant of AFSCME’s motion to 

dismiss, its corresponding dismissal of Davis’s hybrid claim against PRO, and its denial of 

Davis’s motion for reconsideration.