DECISION AND MEMORANDUM
This matter is before the Court on the Motion for Judgment on the Pleadings brought by all Defendants. Plaintiff Sharon DeLucca is a professor at Roger Williams University and a member of its faculty union, Defendant Roger Williams Faculty Association. Defendant National Education Association of Rhode Island handles all grievances, arbitrations and collective bargaining for the Roger Williams Faculty Association (these entities will be referred to collectively as “the Union”). Defendant Melvyn Topf is the chair of the Union’s grievance committee. In her Complaint, Plaintiff alleges that the Union breached its duty of fair representation when it decided that it was not going to pursue her grievance to arbitration; and that all Defendants, in participating in that decision, committed the tort of intentional infliction of emotional distress. ■ For the judgment on the pleadings, dismissing Plaintiff’s Complaint in its entirety.
Standard of review
Defendants move to dismiss the claims against them based upon the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The standard of review for this type of mqtion is “the same as that for a motion to dismiss under Rule 12(b)(6)." Frappier v. Countrywide Home Loans,. Inc.,
Ordinarily, a court may not consider any documents that are outside of the complaint, or not expressly incorporated'therein,'unless the motion is converted into one for summary judgment. Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co.,
In the present case, Defendants have submitted the arbitration award resulting from the arbitration proceeding whose withdrawal and reinstatement are the subject of Plaintiffs claims. Although she does not dispute the authenticity of the arbitration award submitted by Defendants, Plaintiff has objected to its submission, arguing that it is not relevant to her claims. Based on the standard set forth in Watterson v. Page, and the law pertinent to Plaintiffs allegations, the Court has reviewed the arbitration award and, to the extent' that it is relevant, considered it.
Background
Plaintiff is a full-time tenured professor who teaches graphic, design in Roger Williams University’s department of communications and graphic design. According to her Complaint, Plaintiff was assigned by the University, and was performing, , additional professional duties, beyond the scope of a professor’s duties, in violation of the collective bargaining agreement between the University and the Union (“the Contract”). Plaintiff . filed a grievance; demanding that the area of graphic design be designated as an independent department and that she. be named its chair, with appropriate compensation and benefits. Step One of that grievance was heard and denied in December 2010. The grievance was denied again at Step Two in January 2011. The Union agreed to pursue the- grievance to . arbitration, as provided for by the Contract, and the first session was scheduled for July 2011. No representative from the Union contacted Plaintiff to prepare, for the arbitration. However, the July 2011 session was eventually postponed and rescheduled for November 2011, at the request of the University.
On September 30, 2011, Plaintiff met with several representatives from the Union to prepare for the arbitration. During the course of this meeting, Plaintiff and the Union representatives got into an argument. In her Complaint, Plaintiff describes the meeting as “verbal assault” on her,
about the arbitration, the underlying claim and issues not within the scope of or purview of NEARI [the Union], including demanding that Plaintiff settle all her issues with RWU [the University], and still without knowing anything about the substance of the original grievance or the alleged violation of the CBA [the Contract]. The meeting was completely unproductive and resulted in no preparation for the arbitration.
Complaint ¶ 19. The Union followed up with a letter to Plaintiff on October 17, 2011, summarizing its account of the meeting. Plaintiff characterizes the letter as “self-serving and not representative of the truth of what happened, at the meeting.” Complaint ¶ 16. The arbitration was then postponed again, and rescheduled for April 2012.
In March of 2012, Plaintiff received a letter from Union representative Jeanette Woolley, advising her that the arbitration had again been postponed. According to Plaintiff, the letter also,
asserted that two (2) meetings had been scheduled with and then canceled by the Plaintiff, and gave a summation of what Ms. Woolley knew of the grievance and substance of the arbitration, ignoringthe aspect of the grievance whereby Plaintiff was seeking additional compensation for work performed beyond the scope of the CBA for a tenured, full-time faculty member of RWU. Most importantly, Ms. Woolley advised the Plaintiff that if Plaintiff [sic] did not receive supporting evidence by April 16, 2012, that Ms. Woolley was going to recommend that the arbitration be withdrawn.
Complaint ¶22. Receiving no guidance from the Union as to what supporting evidence was needed, Plaintiff did not provide additional documentation prior to the Union’s deadline. On May 3, 2012, Plaintiff received an email from , a different Union representative, reminding her to produce additional documentation and notifying her that the arbitration had been rescheduled to June 18, 2012. The same day, Jeanette Woolley contacted Defendant Topf and recommended that the arbitration be withdrawn. Topf, in turn, recommended to the president of the Roger Williams Faculty Association that the arbitration be withdrawn. Plaintiff was not contacted beforehand, nor was there any kind of meeting or vote of the Union’s grievance committee or of its general membership. Plaintiff learned of these actions on the evening of May 3, when she received a copy of the recommendation that Topf had sent to the president of the Roger Williams Faculty Association.
Plaintiff appealed the grievance committee’s decision, at “much effort and expense.” She sought help in this effort from campus-based Union representatives, but received no assistance. In October 2012, the Union reversed itself and reinstated the arbitration. Plaintiff filed this Complaint in March 2013 — several months after the 'arbitration was reinstated, but before it was heard.
Additional background
The arbitration award
After setting forth the positions of both sides- and complimenting them both on their “scholarly, well researched, well written and very persuasive” briefs, the arbitrator concluded that the grievance was not arbitrable; that is, that Plaintiffs complaint and desired remedy were outside the scope, of the Union , Contract. The arbitrator determined that nothing in the Contract demonstrated the parties’ intent to strip the University, of the exclusive authority to establish academic departments and apppint department chairs, nór to subject such matters to arbitration. The arbitrator cited the Contract’s management rights clause which provides that the University retains all rights not ex
Equally problematic is so much of the claim for relief as seeks the grievant’s appointment as department chair. Such a remedy would circumvent the parties’ established procedures for selecting a department chair and thus, su’ch a remedy would appear to contravene, much less draw its essence from the Agreement. The specific relief sought by the grievant thus appears to be outside the scope of the arbitrator’s authority.
The' arbitrator concluded that not only was it beyond his authority to order the University to formally designate Plaintiff a department chair, but that the Contract also did- not permit the arbitrator to consider- the Union’s - claim that Plaintiff should be compensated as a department chair, based on her duties. Consequently, the grievance was dismissed.
Analysis
Breach of duty of fair representation
In Counts I and III, Plaintiff-claims that the two union entities, Defendant National Education Association of Rhode Island and Defendant Roger Williams University Faculty Association, Inc., breached their duty to fairly represent her. Plaintiffs Complaint focuses exclusively on the Union’s act of withdrawing the arbitration on May 3, 2012, forcing Plaintiff to spend time and money appealing its withdrawal during the summer of 2012, with no help from any of the Union’s representatives. On October 11, 2012, the Union’s grievance committee voted unanimously to reinstate the arbitration. The Plaintiff makes no allegations in the Complaint that the Union failed to diligently pursue the arbitration; and, in fact, as mentioned earlier, the Complaint was filed March 8, 2013, several months before the arbitration hearing took place. In her memorandum, Plaintiff argues strenuously that the Court should consider only the allegations in the Complaint, and should not consider the arbitrator’s ruling. Based on the allegations in the Complaint then, Plaintiff is'arguing that it is a violation of federal law for the Union to temporarily withdraw the arbitration,
Union has discretion to withdraw arbitration
A union has wide discretion in determining whether or not. to pursue a grievance to arbitration:
In all events, disaffected employees do not possess an absolute right to have their union. shepherd a complaint through the ■ grievance process to the bitter end. In the context of employee grievances, the duty of fair representation is not a straitjacket which -forces a union to pursue grievance remedies under the collective bargaining agreement in every case, where an employee has a complaint.against the company. •
Ayala v. Union de Tronquistas,,
The Union’s preparation for the arbitration
At any rate, the Union'reinstated Plaintiffs grievance and had already done so at the time Plaintiff filed her Complaint. Since then, Plaintiff has alleged, at oral argument and as an alternative argument in her memorandum, that the Union handled the arbitration in a perfunctory manner because it failed to prepare the Plaintiff and faded to interview witnesses. As part of this alternative argument, Plaintiff claims that the damages resulting from Defendants’ breach of its duty of fair representation should' include “the additional compensation for the work performed by Plaintiff far beyond the duties of a full-time professor.” Based on this allegation, the Court infers that-Plaintiff-is arguing that the Union’s failure to achieve a favorable ruling from the arbitrator is also an actionable breach of its duty of fair- representation.
Arbitration decisions are generally deemed final by the courts, when arbitration is the decision-making, process agreed to by the parties. - - “When a collective bargaining contract calls for final and binding arbitration, as here, an arbitration decision is ordinarily final, for the employees have, obtained what their union has bargained for.” Sear v. Cadillac Auto. Co. of Boston,
In evaluating whether the union.acted in good faith in dealing with the employee’s grievance, it is. important to keep in mind that unions are given great latitude and discretion in this area and courts are hesitant to interfere with union decisions regarding the handling of employee grievances unless they show a reckless disregard for the rights of the individual employee.
Hussey v. Quebecor Printing Providence Inc.,
In her Complaint, Plaintiff indicates that the Union had not been diligent in its efforts to prepare for the arbitration. The Complaint’s factual allegations cover the time period from February 201-1 to March 2013,' when the arbitration hearing
At oral argument, Plaintiff argued that the Union’s pursuit of the arbitration was perfunctory; however, no additional factual allegations from the post-reinstatement time period were advanced to support this theory. In fact, the only evidence before the Court concerning the Union’s preparations come from the arbitrator' who describes the Union’s brief as “scholarly, well researched, well written and very persuasive.” Based on the arbitrator’s remarks, it appears the Union was adequately prepared. Certainly, there are no allegations that support a claim that the Union acted with malfeasance, in ‘reckless disregard’ of Plaintiffs rights, or that its conduct weakened the integrity of the arbitral process. The Court concludes that none of the exceptions to the general rule of the finality of arbitrated decisions apply in this instance.
The merits of Plaintiffs grievance
The merits of Plaintiffs underlying grievance against the University are inextricably linked to her claim that the Union breached its duty of fair representation, because to prove that the Union breached its duty, she must also establish that the University violated the Contract. As this Court wrote in Hussey, “Success in a breach of fair representation case requires that the plaintiffs underlying claim against the employer be meritorious.”
Whether the employee sues both the labor union and the employer or only one of those entities, he must prove the same two facts to recover money damages: that the employer’s action violated the terms of the ' collective-bargaining agreement and that the union breached its duty of fair representation.
Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry,
The Court is familiar with the Roger Williams Faculty Association’s Contract with the University based on its previous work in the related case of Roger Williams University Faculty Ass’n v. Roger Williams University,
Based on the arbitrator’s experience, it would be remarkable if the University .agreed to submit to arbitral resolution the question whether it was required to create a new department. A University organizes itself to provide education through a .department structure. Considerations of educational policy and theefficient deployment of always scarce resources are critical in defining a department structure. Arbitrators know how to interpret contracts, but they can hardly be deemed competent or knowledgeable higher education administrators. The resolution of this grievance would place the arbitrator in the position of- making judgments outside his presumed field of expertise. The parties could have agreed to put the arbitrators in that position, but clear contract language would be required to conclude that they did so. Here, such contract language is lacking, while the existing contract language shows that they did not agree to do so.
The Court concurs that it is clear that Plaintiffs claim that she is entitled to the title and compensation of a department chair is beyond the scope of the faculty’s collective bargaining agreement,’ and intrudes into the arena of management rights retained by the University. Consequently, Plaintiff is unable, as a matter of law, to demonstrate that the University violated the Contract, one of the two necessary elements in establishing a breach of the duty of fair representation claim. Nor can Plaintiff demonstrate that the Union’s conduct, either before or after the reinstatement of the arbitration, was “arbitrary, discriminatory or in bad faith,” nor did it show “reckless disregard” for Plaintiffs rights or undermine “the integrity of arbitral process.” For all. of these reasons, Plaintiffs Counts I and III, claiming that the Union, Defendants breached their duty of fair representation, are dismissed as a matter of law based upon the pleadings.
Intentional infliction of emotional distress
In Counts II, IV and V, Plaintiff alleges that both Union Defendants and Defendant Melvin Topf, chairman of the Union’s grievance committee intentionally or recklessly caused her emotional distress by withdrawing the arbitration, thereby causing “serious harm' to the respect and reputation of the Plaintiff among her colleagues at RWU and significant distress, worry and embarrassment to Plaintiff.” Complaint ¶ 49. These counts fail as a matter of law for several reasons.
Federal preemption
First, Plaintiffs claims of intentional infliction of emotional distress are preempted by federal labor law, section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. That these claims are preempted is underscored by the fact that the allegations supporting Plaintiffs claims of breach of duty of fair representation are precisely the same factual allegations supporting her tort claims. The conduct of which Plaintiff complains in both her federal and state tort claims is the same conduct — the temporary withdrawal of her arbitration.' See Chaulk Services, Inc. v. Mass. Comm’n Against Discrimination,
Elements of the tort
Even if Plaintiffs tort claims were not preempted, they founder before Defendants’ attack because they fail to set forth the required elements of the tort of intentional infliction of emotional distress. The Rhode Island Supreme Court has held that the claim must include the following elements:
(1). the conduct must be intentional or in reckless disregard of the probability of causing emotional distress, (2) the conduct must be extreme and outrageous, (3) there must be. a causal connection between the wrongful conduct and the emotional distress, and (4) the emotional distress in question must be severe. In addition, the Court has required at least some proof of medically established physical symptomatology for both intentional and negligent infliction of emotional distress.
Swerdlick v. Koch,
In the present case, the Court has already established that the Union’s temporary wavering as to whether or not to press Plaintiffs ultimately non-meritorious arbitration is not conduct that rises to the level of arbitrary, discriminatory or bad faith, nor is it extreme and outrageous. Plaintiff claims that she “did suffer significant distress and embarrassment in relation to the withdrawal of the arbitration due to the loss of respect and reputation of Plaintiff among her colleagues at RWU.” As a matter of law, unsubstantiated claims of “embarrassment” and “significant distress,” with no further factual support, are insufficient to support Plaintiffs claims under the pleading standard set forth by the Supreme Court in Ashcroft v. Iqbal,
For these reasons, Plaintiffs claims of intentional infliction of emotional distress, Counts II, IV and V, fail.as a matter of law and are hereby dismissed.
Conclusion
For these reasons, the Court grants Defendants’ Motion for Judgment on the Pleadings, dismissing all counts in Plaintiffs Complaint. The Clerk shall enter judgment accordingly.
So ordered.
Notes
. The American Arbitration Association identifies the ruling as: "In the Matter of Arbitration Between: ROGER WILLIAMS FACULTY ASSOCIATION (NEARI/NEA) And ROGER WILLIAMS UNIVERSITY No. 11 300 00316 11 (Sharon DeLucca — University failed to recognize And compensate grievant for her work as Department Chair back to July 1, 2006).
. According to the Union, the arbitration was withdrawn because Plaintiff failed to provide documentation to support her grievance. Plaintiff does not dispute this, but claims that she did not know what documentation the Union wanted.