2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-12-2011

Chester Cromwell v. United Steelworkers of

America

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3886

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Recommended Citation

"Chester Cromwell v. United Steelworkers of America" (2011). 2011 Decisions. Paper 1451.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 10-3886

_____________

CHESTER E. CROMWELL,

 Appellant

v.

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC; 

INNOVATIVE COMMUNICATION INL, 

d/b/a Innovative Telephone 

_____________

Appeal from the District Court of the Virgin Islands

(D.C. Civil No. 08-cv-00149)

District Judge: Honorable Curtis V. Gomez

_____________ 

Submitted Under Third Circuit LAR 34.1(a)

April 12, 2011

Before: SCIRICA, RENDELL and AMBRO, Circuit Judges

(Opinion Filed: April 12, 2011) 

_____________

OPINION OF THE COURT 

_____________

RENDELL, Circuit Judge.

Chester E. Cromwell brought this pro se action alleging that Innovation 

Communication, Inc. violated the Collective Bargaining Agreement (“CBA”) by 

suspending and terminating him due to his inability to pass a written certification test to 
2

become a pole climbing instructor, and that the United Steelworkers of America (“the 

Union”) breached its duty of fair representation during, and in the aftermath, of his 

suspension and termination. The District Court of the Virgin Islands granted summary 

judgment to both defendants, affirming the decision and award issued by the Arbitrator 

who, pursuant to the CBA, first heard the case. Cromwell appealed the District Court‟s 

ruling. For the reasons set forth below, we will affirm. 

 Because this case arises under the National Labor Relations Act, 28 U.S.C. § 

151, the District Court exercised jurisdiction pursuant to 28 U.S.C. § 1331. We have 

jurisdiction under 28 U.S.C. § 1291 to review the District Court‟s final order. We apply a

plenary standard of review to the order granting summary judgment and, in so doing, we 

apply the same standard as the District Court. State Auto Prop. & Cas. Ins. Co. v. Pro 

Design, P.C., 566 F.3d 86, 89 (3d Cir. 2009); Bouriez v. Carnegie Mellon Univ., 585 F.3d 

765, 770 (3d Cir. 2009) (“Summary judgment is appropriate „if the pleadings, the 

discovery and disclosure materials on file, and any affidavits show that there is no 

genuine issue as to any material fact and that the movant is entitled to judgment as a 

matter of law.‟” (quoting Fed. R. Civ. P. 56(c)). We review the district court‟s factual 

findings for clear error. Nino v. Jewelry Exch., Inc., 609 F.3d 191, 199-200 (3d Cir. 

2010). 

Background

As we write primarily for the parties, we recite only those facts necessary to our 

analysis. Cromwell was originally hired by Innovative, a Virgin Islands 

telecommunications and cable television company, in 1999 as a janitor. In 2000, he was 
3

promoted to the position of Installer/Repairman. He received some training at the time of

his promotion, but he was not trained in pole climbing, one of the essential duties of the 

Installer/Repairman position. Thus, he was not equipped to perform this portion of his 

job, as U.S. Occupational Safety and Health Administration (“OSHA”) regulations 

require that all pole climbers receive certification from an individual himself or herself 

certified in pole climbing instruction.1

In 2005, Innovative sent one of its employees, Andrew Remselnik, to Texas A&M 

University to be certified as a pole climbing instructor. Beginning in January 2006, 

Remselnik began training and certifying Innovative Installer/Repairmen in pole climbing; 

the process included classroom training followed by a written test made up of twenty 

true/false and multiple-choice questions. A grade of 80% was required to pass. 

Cromwell underwent pole climbing training and took the test six times between 

July 3, 2007 and July 5, 2007. He was provided with paid leave time to study throughout 

the period of training and tests. During one of the tests, due to concern regarding 

Cromwell‟s ability to read and write, Cromwell was read the questions by a Union Shop 

Steward and Remselnik wrote his answers on the test form. Cromwell failed the test each 

time, including when it was administered orally. Twenty-eight other employees who had 

been trained by Remselnik took and passed the same test by July 2007. 

As a result of his failure to pass the test, Cromwell was suspended for ten days. At 

the time of his suspension, Innovative offered to return him to his former janitor position, 

 

1

Several company witnesses testified at Cromwell‟s arbitration hearing that men were 

climbing poles who were not certified and that Innovative was not in compliance with the 

OSHA regulations. 
4

but he declined. A suspension hearing was held pursuant to Article XV of the CBA,2at 

which Cromwell was represented by the Local Union President, the Union Shop Steward, 

and Randolph Allen, a Staff Representative for the Union in St. Thomas. Because 

Cromwell was not able to provide a plausible explanation at his hearing for his inability 

to pass the test, Innovative converted his suspension into a termination. Cromwell issued 

no complaints at this point about the Union‟s representation during the hearing.

The Union then filed a grievance on Cromwell‟s behalf, pursuant to Article XVI 

of the CBA, which sets forth the Grievance Procedure. Innovative denied the grievance, 

and the Union proceeded to Arbitration. At the arbitration hearing, the Union and 

Innovative presented exhibits and testimony on the issue of whether Cromwell was 

terminated for just cause. Cromwell was represented by Frederick Joseph, the SubDistrict Director for the International Union, who oversees the Union‟s activities for all 

of the Virgin Islands. The Arbitrator denied the Union‟s grievance, based on its finding 

that Innovative had just cause for terminating Cromwell; she explained in her Findings 

that Innovative‟s requirement that Installer/Repairmen had to pass the pole climbing test 

 

2 Article XV of the CBA provides, in relevant part:

Section 1. The Company retains the exclusive right to discipline, discharge or 

suspend an employee for just cause. Written notice of the suspension stating the 

period of suspension and the reason therefore will be given the employee and the 

Union not later than the start of employee‟s next regularly scheduled shift . . . .

Section 2. During such suspension period, the employee or Union may request 

and shall be granted a hearing before a representative of the Company with the 

Local Union Grievance Chairman, Assistant Grievance Committee Chairman or a 

grievance committee member present. No decision shall be made to discharge an 

employee pending investigation prior to a hearing with the Union or ten (10) 

working days, whichever comes first . . . .
5

was related to the orderly, efficient and safe operation of its business and that it was 

reasonable for the company to expect its employees to be certified. The Union denied 

Cromwell‟s request that the Union appeal the Arbitrator‟s award. 

Cromwell then filed a complaint in the District Court of the Virgin Islands 

claiming that Innovative violated the CBA in suspending and terminating him and that 

the Union breached its duty of fair representation in its handling of the arbitration and its 

refusal to appeal the arbitrator‟s decision. He asked that the District Court vacate the 

Arbitrator‟s award and reinstate him to his installer/repairman position. Both Innovative 

and United Steelworkers filed motions for summary judgment, which were granted by the 

District Court. The District Court found that Cromwell‟s claims against Innovative and 

the Union constituted a hybrid claim under § 301 of the Labor Management Relations 

Act (“LMRA”), 29 U.S.C. § 185, and that Cromwell failed to provide evidence that a 

genuine issue of material fact existed as to either one of his claims. 

On appeal, Cromwell again asserts that Innovative violated the CBA and that the 

Union breached its duty of fair representation. He also claims that Innovative‟s decision 

to suspend and terminate him was in retaliation for his filing of two EEOC complaints for 

harassment and discrimination, an arbitration award against Innovative, and his filing of a 

breach of fiduciary duty claim against the Union in 2007. Amidst these arguments, he 

also raises a panoply of poorly articulated claims, including allegations that Innovative 

and the Union committed fraud and that the District Court erred in not allowing him to 

amend his complaint. We will not address these other arguments both because they are 
6

raised for the first time on appeal3and because minimal factual and legal support make it 

nearly impossible to discern exactly what Cromwell is arguing.4 

Discussion

The District Court properly treated Cromwell‟s suit as a “hybrid” action under § 

301 of the LMRA. In such an action, “a union member sues his or her employer for 

breaching its contractual obligations under the collective bargaining agreement and the 

union for breaching its duty of fair representation.” Beidleman v. Stroh Brewery Co., 182 

F.3d 225, 236 (3d Cir. 1999). A plaintiff bringing a hybrid claim must prove two 

essential and “inextricably interdependent” elements: “that the employer breached the 

collective bargaining agreement in order to prevail on the breach of duty of fair 

representation claim against the union, and vice versa.” Felice v. Sever, 985 F.2d 1221, 

1226 (3d Cir. 1993).

 

3 We adhere to the “„well-established principle that it is inappropriate for an appellate 

court to consider a contention raised on appeal that was not initially presented to the 

district court.‟” Lloyd v. HOVENSA, LLC, 369 F.3d 263, 272-73 (3d Cir. 2004) (quoting 

In re City of Phila. Litig., 158 F.3d 723, 727 (3d Cir. 1998)). 

4 Rule 28(a) of the Federal Rules of Appellate Procedure requires that an appellant‟s brief 

include in its argument section “appellant‟s contentions and reasons for them, with 

citations to the authorities and parts of the record on which appellant relies.” With regard 

to his vague, diffuse arguments that fall outside his CBA violation, breach of duty of fair 

representation, and retaliation claims, Cromwell fails to provide adequate contentions, 

reasoning or citations. Defendant United Steel Workers argues that we should dismiss 

Cromwell‟s full appeal on the basis that his briefing fails to comply with Rule 28(a)‟s 

requirements for the headings and content of an appellate brief. Though we note the 

challenge of culling through Cromwell‟s legal arguments, we construe pro se filings 

liberally, Rencheski v. Williams, 622 F.3d 315, 337 (3d Cir. 2010), and, accordingly, we 

will not dismiss all his claims on these grounds. Cromwell has, to some extent, set forth 

in his brief “contentions and the reasons for them, with citations to the authorities and 

parts of the record” he relies on, as Rule 28 requires. 
7

We agree with the District Court that Cromwell fails to present a genuine issue of 

material fact as to whether Innovative breached the CBA. Cromwell‟s primary argument 

is that Innovative breached the CBA by unfairly and excessively delaying his training on 

the fundamentals of pole climbing after he was promoted to the position of 

Installer/Repairman in 2000. Under Article IX (Seniority), § 7(3)5and Article XXI 

(Training), § 16of the CBA, he posits, Innovative was required to provide him with 

training in pole climbing within 90 days of his promotion. Though we note, as the 

Abitrator did, that Cromwell and the other Installer/Repairmen‟s training was delayed for 

a long period of time, Cromwell has presented no evidence to establish that this delay 

was a violation of the CBA. We agree with the District Court‟s interpretation that the 

CBA does not set forth a specific time period in which Cromwell had to receive pole 

climbing training. Article IX‟s provision for a 90-day probationary period does not 

 

5 Article IX, § 7(3) provides, in pertinent part: 

Employees who are selected by the Company for a promotion pursuant to this 

Article and are unable to meet the requirements of the position within ninety (90) 

working days shall be returned to their former position at the applicable rate of pay 

for that position. 

6 Article XXI, § 1 provides, in pertinent part: 

The company agrees to continue its formal and informal training program as 

required for its bargaining unit employees and further agrees to explain and review 

existing programs and keep the Union informed as to the development of new 

programs.

All employees hired or promoted shall receive formal and informal training during 

their initial ninety (90) days. Formal training shall either be classroom or on the 

job. The extent of the formal training shall be determined by the Company. The 

Company agrees that all training shall be reasonably job related, and at a level

appropriate to the level of the job. It is the goal of the Company and the Union to 

assure that all employees in a particular job classification with a department learn 

all phases on the work.
8

require that Innovative provide its employees with all the training necessary to perform 

their positions within that 90-day period; its focus is on the employee’s satisfaction of the 

Company‟s requirements during that time period, not on what the employer must provide 

in terms of training during that time period. Article XXI requires only that employees 

receive some kind of training for their positions within 90 days of hiring or promotion. It 

then goes on to explicitly state that “[t]he extent of . . . training shall be determined by the 

Company,” thus providing the Company with discretion as to precisely what training to 

provide during the initial 90-day period. Further, other parts of the CBA confirm the 

broad authority provided to management in conducting the company‟s affairs.7 Both the 

Arbitrator and the District Court found Innovative‟s training of Cromwell to be consistent 

with this authority, and we will not disturb that conclusion. 

Throughout the fact and argument sections of his brief, Cromwell makes several 

other allegations of various ways that Innovative breached the CBA. He repeatedly 

challenges the basis for his termination, alleging that Innovative lacked just cause to 

terminate him because he did not actually fail the test six times. Since he raises this 

argument for the first time on appeal, he has waived it. Moreover, even if he had 

 

7

For example, Article I of the CBA, the “Management Rights Provision,” provides: 

The Management of the Company and the direction of the working force are 

vested exclusively with the Company. The Company hereby retains the sole 

control over all matters concerning the operation, management, and administration 

of its business, including, but not limited to the administration of its departments 

and operations, the organizations and methods; of types of work, the assignment of 

work, the direction of Personnel, decisions on subcontracting, the right to hire, 

reclassify, transfer, discipline, suspend, separate or pension employees and all 

functions inherent in the administration and/or management of the business except 

as expressly limited by the terms of this agreement.
9

properly raised the issue, his six-time failure of the test was a finding of fact by the 

District Court, and we have no reason to believe that the District Court clearly erred in 

making this finding. In addition, Cromwell asserts that Innovative breached the CBA by 

failing to provide him with a tutor when he initially failed the test.8 Nowhere does the 

CBA require the employer to supply such remedial aid. The provision he cites –

providing that the Company should continue to offer training programs so that employees 

know how to use advancing technology – is inapposite. 

Cromwell‟s failure to present any genuine issue of material fact regarding his 

contention that Innovative breached the CBA in suspending and terminating him is fatal 

to his § 301 claim. Felice, 985 F.2d at 1226. Nonetheless, we note that, even if he could 

establish a genuine issue as to his CBA claim, his duty of fair representation claim must 

fail. A breach of the statutory duty of fair representation occurs only when a union‟s 

conduct towards a member of the collective bargaining unit is “„arbitrary, discriminatory, 

or in bad faith.‟” Hendricks v. Edgewater Steel Co., 898 F.2d 385, 388 (3d Cir. 1990) 

(quoting Vaca v. Sipes, 386 U.S. 171, 190 (1967)) . “[A] union's actions are arbitrary 

only if, in light of the factual and legal landscape at the time of the union's actions, the 

union's behavior is so far outside a „wide range of reasonableness‟ as to be irrational.” 

 

8 Cromwell seems to base this argument on Article XXI (Training), § 2, which is 

subtitled “Technology,” and provides, in pertinent part:

It is the Company‟s policy to assure that training is available for its employees so 

that they may have the opportunity to acquire the knowledge and skills required by 

the introduction of new technology. The parties recognize that, in some cases, 

senior employees may lack qualifications or technical skills necessary for a higher 

or different position. In order to aid senior employees with advancement, the 

Company will continue to offer training opportunities to include tuition 

reimbursement, program-learning and other types of training. 
10

Air Line Pilots Ass'n v. O'Neill, 499 U.S. 65, 67 (1991) (quoting Ford Motor Co. v. 

Huffman, 345 U.S. 330 (1953) (internal citation omitted)). Further, we have stated that 

an employee is “subject to the union's discretionary power to settle or even to abandon a 

grievance, as long as it does not act arbitrarily.” Bazarte v. United Transp. Union, 429 

F.2d 868, 872 (3d Cir. 1970).

The District Court is correct that Cromwell cannot meet the high burden of 

establishing that the Union‟s conduct in representing him was arbitrary, discriminatory, 

or in bad faith. The Union undoubtedly fulfilled its obligation to represent Cromwell by 

filing a grievance on his behalf, taking the grievance to arbitration, and representing his 

interests before the Arbitrator. The Supreme Court has said that, in the context of a 

grievance proceeding, a union may not “arbitrarily ignore a meritorious grievance or 

process it in a perfunctory fashion,” Vaca, 386 U.S. at 191, and we have clarified that 

“[m]ere ineptitude or negligence in the presentation of a grievance by a union has almost 

uniformly been rejected as the type of conduct intended to be included within the term 

„perfunctory.‟” Findley v. Jones Motor Freight, Etc., 639 F.2d 953, 960 & n.2 (3d Cir. 

1981). Here, the Union diligently pursued Cromwell‟s claim, far exceeding the low bar 

of “ineptitude or negligence” that a Union must fall below for a breach of duty of fair 

representation claim to go forward. Cromwell‟s conclusory assertions to the contrary –

primarily that the Union should have let Randolph Allen, rather than Frederick Joseph, 

represent him at the Arbitration – do not pass muster. Cromwell provides no support for 

the proposition that the Union‟s duty of fair representation includes an obligation to 
11

provide him with his first-choice Union representative and no evidence that Joseph, more 

experienced and senior than Allen, did not competently represent him 

Finally, Cromwell‟s vague allegations of “retaliation,” which the District Court 

did not address, are unsupported by any evidence in the record and do not come close to 

fulfilling the requirements for a prima facie case of retaliation under Title VII of the Civil 

Rights Act of 1964. See Ambramson v. William Patterson Coll., 260 F.3d 265, 286 (3d 

Cir. 2001) (“To advance a prima facie case of retaliation under Title VII . . . , a plaintiff 

must show that: (1) the employee engaged in a protected employee activity; (2) the 

employer took an adverse employment action after or contemporaneous with the 

employee‟s protected activity; and (3) a causal link exists between the employee‟s 

protected activity and the employer‟s adverse action.”). 

Conclusion

For the foregoing reasons, we will affirm the District Court‟s grant of summary 

judgment to both Innovative and the Union.