UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

RICHARD D. ROBESON, 

Plaintiff, 

Case No. 09-11231

v. Hon. Lawrence P. Zatkoff 

UNITED STATES STEEL CORPORATION, 

Defendant.

 /

OPINION AND ORDER

AT A SESSION of said Court, held in the United States Courthouse,

in the City of Port Huron, State of Michigan, on March 31, 2010

PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This matter is before the Court on Defendant’s motion to dismiss [dkt 6] and brief in support

thereof [dkt 7]. Plaintiff has filed a response brief, and Defendant did not file a reply brief. The

Court finds that the facts and legal arguments are adequately presented in the parties’ papers such

that the decision process would not be significantly aided by oral argument. Therefore, pursuant to

E.D. Mich. L.R. 7.1(e)(2), it is hereby ORDERED that the motion be resolved on the briefs

submitted. For the following reasons, Defendant’s motion is DENIED. 

II. BACKGROUND

 Plaintiff was employed by Defendant United States Steel Corporation (“Defendant”), and

its predecessor, Great Lakes Steel Corporation, for over 30 years. On March 13, 2008, Plaintiff

attempted to call a counselor during his lunch hour. The counselor was unavailable. Assuming that

the call had been disconnected, Plaintiff, still holding the receiver, made several disparaging remarks
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regarding the counselor, Defendant, Plaintiff’s union, and African-Americans, intending that the

comments be heard only by those present in the lunch room. Unbeknownst to Plaintiff, the call had

not been disconnected, and the comments were recorded on the counselor’s voice-mail system.

Defendant terminated Plaintiff’s employment following the incident. 

Plaintiff alleges that prior to his termination, he had unsuccessfully run for election as part

of a slate in opposition to the leadership of Local 1299 United Steel Workers of America (“the

Union”). Plaintiff contends that the failed campaign resulted in hostile relations between the Union

and himself, which carried over to the Union’s representation of him in the grievance procedures

following his termination. The Union represented Plaintiff throughout the grievance process, but

it withdrew the grievance from arbitration despite Plaintiff’s desire to proceed. 

Plaintiff filed this lawsuit alleging that Defendant breached the collective-bargaining

agreement between Defendant and the Union when it wrongfully terminated him. Plaintiff’s

complaint also details the various ways that Plaintiff believes the Union breached its duty of fair

representation. The Union is not a party to this action. Defendant has moved to dismiss the action

pursuant to Fed. R. Civ. P. 12(b)(6) and (7). 

III. LEGAL STANDARDS

A. Fed. R. Civ. P. 12(b)(6) 

A motion brought pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which

relief may be granted tests the legal sufficiency of Plaintiff’s claims. The Court must accept as true

all factual allegations in the pleadings, and any ambiguities must be resolved in Plaintiff’s favor.

See Jackson v. Richards Med. Co., 961 F.2d 575, 577–78 (6th Cir. 1992). While this standard is

decidedly liberal, it requires more than the bare assertion of legal conclusions. See Advocacy Org.
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for Patients & Providers v. Auto Club Ins. Ass’n, 176 F.3d 315, 319 (6th Cir. 1999). Thus, a

plaintiff must make “a showing, rather than a blanket assertion of entitlement to relief” and

“[f]actual allegations must be enough to raise a right to relief above the speculative level” so that

the claim is “plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).

See also Ashcroft v. Iqbal, __ U.S. ___, 129 S. Ct. 1937, 1953 (2009) (“Our decision in Twombly

expounded the pleading standard for ‘all civil actions . . . . ’”). 

In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), this Court may only

consider “the facts alleged in the pleadings, documents attached as exhibits or incorporated by

reference in the pleadings, and matters of which the [Court] may take judicial notice.” 2 James Wm.

Moore et al., Moore’s Federal Practice ¶ 12.34[2] (3d ed. 2000). If, in deciding the motion, the

Court considers matters outside the pleadings, the motion will be treated as one for summary

judgment pursuant to Fed. R. Civ. P. 56. See Fed. R. Civ. P. 12(b).

B. Fed. R. Civ. P. 12(b)(7)

Fed. R. Civ. P. 12(b)(7) provides for dismissal for a “failure to join a party under Rule 19.”

In turn, Rule 19 requires that a party must be joined to a lawsuit when: 

(A) in that person’s absence, the court cannot accord complete relief

among existing parties; or 

(B) that person claims an interest relating to the subject of the action

and is so situated that disposing of the action in the person’s absence

may: 

(i) as a practical matter impair or impede the person’s ability

to protect the interest; or 

(ii) leave an existing party subject to a substantial risk of

incurring double, multiple, or otherwise inconsistent

obligations because of the interest. 

Fed. R. Civ. P. 19(a)(1). Dismissal based on a failure to join under Rule 19 “is not the preferred
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Plaintiff has agreed to dismiss Count III of his complaint, which alleged a conspiracy

claim. 

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outcome under the Rules.” Askew v. Sheriff of Cook County, Ill., 568 F.3d 632, 634 (7th Cir. 2009).

IV. ANALYSIS

The Court initially concludes that Plaintiff’s claims are “substantially dependent” upon the

terms of a collective-bargaining agreement. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220

(1985). Plaintiff’s breach-of-contract claims1

 will therefore be construed as arising under § 301 of

the Labor-Management Relations Act (LMRA), 29 U.S.C. § 185. See id. 

Defendant sets forth two arguments in its motion to dismiss. First, Defendant maintains that

the applicable collective-bargaining agreement, the 2003 Basic Labor Agreement (“the

Agreement”), provides the exclusive remedy for Plaintiff’s claims. Second, Defendant insists that

Plaintiff was required to name the Union as a party-defendant in this matter, and it urges the Court

to dismiss the case as a result of this perceived shortcoming. 

A. Exclusive Remedy

The United States Supreme Court has noted that “under § 301, as in other areas of the law,

there is a strong presumption that favors access to a neutral forum for the peaceful resolution of

disputes.” Groves v. Ring Screw Works, Ferndale Fastener Div., 498 U.S. 168, 173 (1990). This

presumption is “overcome whenever the parties have agreed upon a different method for the

adjustment of their disputes.” Id. at 173–74. If a collective-bargaining agreement provides for a

final and exclusive remedy, “an employee will be prohibited from bringing an action under § 301

absent an allegation that his union breached its fair duty of representation.” Alford v. Gen. Motors

Corp., 926 F.2d 528, 531 (6th Cir. 1991). 
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Thus, the initial question is whether the Agreement contains a bargained-for “final and

exclusive” remedy. Defendant cites the following provision of the Agreement as providing

Plaintiff’s exclusive remedy: 

Except as expressly provided herein, the provisions of this BLA

constitute the sole procedure for the processing and settlement of any

claim by an Employee or the Union for a violation by the Company

of this Agreement. As the representative of the Employees, the

Union may process grievances through the grievance procedure,

including arbitration, in accordance with this BLA or may adjust or

settle same. 

Def.’s Ex. 1 (emphasis added). 

Plaintiff contends that the quoted language is similar to that found in Groves, where the

Supreme Court held that the agreement at issue did not supply the exclusive remedy for a breach of

that agreement. In Groves, however, the Supreme Court noted several times that the bargained-for

procedures were “voluntary.” See 498 U.S. at 175–76. See also Pneumatic Trucking, Pneumatic

Trucking, Inc. v. Local 164 Int’l Bhd. of Teamsters, No. 05-74875, 2007 WL 2178394, at *4 (E.D.

Mich. July 27, 2007) (“This CBA does not expressly provide that the grievance procedure is ‘final

and binding’ or that it is an exclusive remedy.”). 

“Any doubts about the exclusivity of contractual grievance procedures are to be resolved in

favor of finding such procedures to be exclusive[.]” See McInnes v. John Hancock Mut. Life Ins.

Co., 53 F.3d 331, at *2 (6th Cir. 1995) (table decision) (citing Republic Steel Corp v. Maddox, 379

U.S. 650, 658–59 (1965)). Here, the cited provision indicates that the Agreement contains the “sole

procedure” for settling “any claim.” The Agreement further describes the Board of Arbitration’s

decisions as “final and binding.” See Def.’s Ex. 2 p.12. 

Based on these provisions, the Court finds that the parties intended that the Agreement
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Conversely, if the contractual remedies were not final and binding, § 301 would not

require Plaintiff to allege the Union’s breach, and he could proceed directly against the

employer. See Pneumatic Trucking, 2007 WL 2178394, at *3. 

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provide the exclusive remedy for employee claims. Even though the Agreement provides for a final

and exclusive remedy, Plaintiff has alleged that the Union breached its fair duty of representation

and therefore may proceed on his § 301 claim. See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S.

151, 165 (1983); Alford, 926 F.3d at 531.2 

B. Joinder of Union

Defendant argues that since Plaintiff failed to join the Union as a party-defendant, Plaintiff’s

complaint should be dismissed on that basis. Plaintiff responds that as long as his complaint alleges

the Union’s breach of fair representation, he is not required to join the Union as a party. 

Plaintiff’s position is correct. “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.”

DelCostello, 462 U.S. at 165. See also Armstrong v. U.S. Postal Serv., 6 Fed. Appx. 282, 284 (6th

Cir. 2001) (“To prevail, the complainant must prove both aspects of his claim, even if as in this case,

he does not proceed against the union.”); Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1239 (10th

Cir. 1998) (“The plaintiff . . . need not sue both his union and former employer in the same case .

. . .”); Hill v. City of Oklahoma City, No. CIV-05-261-L, 2006 WL 222718, at *5 (W.D. Okl. Jan.

30, 2006) (denying motion to join union as necessary party); Evens v. S & K Equip. Co., No. 04-

71198, 2005 WL 3454408, at *4 n.1 (E.D. Mich. Dec. 15, 2005) (“It is settled that an employee does

not have to sue his employer and the union in the same action.”); Phillips v. Nelson Carlson Mech.

Contractors, No. 88 C 20167, 1989 WL 57707, at *2 (N.D. Ill. May 11, 1989) (denying motion to

dismiss for failure to join union).
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 The cases cited by Defendant do not conflict with such a holding. See, e.g., Mochko v.

Acme-Cleveland Corp., 826 F.2d 1064, at *7 (6th Cir. 1987) (table opinion) (“Therefore, plaintiffs

were required to allege breach of their union’s duty of fair representation before being permitted to

reach their breach of contract claim against the employer.”) (emphasis added). 

The Court concludes that Plaintiff is not required to join the Union as a partydefendant—although he will be required to prove a breach of the Union’s fair duty of representation.

See DelCostello, 462 U.S. at 165. Defendant does not actively challenge the viability of the fairrepresentation allegations, aside from characterizing them as “hollow assertions.” As a result, the

Court finds that dismissal is not warranted. 

V. CONCLUSION

 Accordingly, and for the above reasons, IT IS HEREBY ORDERED that Defendant’s

motion to dismiss [dkt 6] is DENIED. 

IT IS SO ORDERED. 

S/Lawrence P. Zatkoff 

LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

Dated: March 31, 2010

CERTIFICATE OF SERVICE
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The undersigned certifies that a copy of this Order was served upon the attorneys of record

by electronic or U.S. mail on March 31, 2010.

S/Marie E. Verlinde 

Case Manager

(810) 984-3290