Borici v. ABM Industry Groups, LLC

Background

Feruze Borici worked as a custodian for ABM Industry Groups, LLC from 2012 to 2019 and was represented by Service Employees International Union, Local 32BJ under a collective bargaining agreement. She alleged that ABM assigned her more than 32,000 square feet of cleaning work, which she claimed violated the agreement. Borici filed six complaints with the Union about the workload. The Union told her in May 2019 that one complaint would go to arbitration, but no arbitration occurred. In October 2020, the Union told her it was closing two of the complaints because the COVID-19 pandemic had made the requested prospective remedy unavailable or made pursuing the complaints impractical, while reserving the possibility of reopening or refiling them later.

Borici filed this action under Section 301 of the Labor Management Relations Act. She claimed that the Union breached its duty to represent her fairly and that ABM breached the collective bargaining agreement. The defendants jointly moved to dismiss under Rule 12(b)(6), which permits dismissal when a complaint does not state a legally sufficient claim.

Court’s analysis

The court treated the claims as a combined Section 301 and fair-representation claim. To prevail, Borici had to adequately allege both that ABM breached the collective bargaining agreement and that the Union breached its duty of fair representation. A union breaches that duty when its conduct toward a member is arbitrary, discriminatory, or undertaken in bad faith, meaning dishonest or improperly motivated. A union member does not have an absolute right to have every grievance taken to arbitration.

The court held that Borici did not allege facts suggesting that the Union’s conduct was arbitrary, discriminatory, or in bad faith. The allegations that arbitration did not occur, that meetings were postponed, and that the Union closed two complaints because of pandemic-related conditions and limited resources were insufficient. The court also rejected Borici’s argument that the Union’s failure to arbitrate multiple complaints, without more, showed that it handled them in a perfunctory manner.

Because Borici had not adequately alleged a breach of the Union’s duty of fair representation, the court did not reach the question whether ABM breached the collective bargaining agreement. The court also did not decide whether the continuing-violation theory applied to four complaints that Borici acknowledged were outside the six-month limitations period.

Disposition

The court granted the defendants’ motion to dismiss and dismissed the action with prejudice. The Clerk of Court was directed to terminate the pending motion and close the case.