MEMORANDUM OPINION

JEFFREY J. HELMICK, District Judge.

I. BACKGROUND

James G. Williams was hired by OmniSource Corporation in March 2007. Williams was employed as a maintenance mechanic at the company's Hill Avenue facility in Toledo, Ohio. He became a member of the International Brotherhood of Teamsters Local 20 after being employed with OmniSource for sixty days. As a member of Local 20, Williams received a copy of the applicable collective bargaining agreement between OmniSource and the Union. David Dawson was hired by OmniSource in December 2012 and was the maintenance supervisor for the Hill Avenue facility during the events at issue.

Williams contends he was harassed by Dawson and other employees as summarized in the complaint's statement of relevant facts:

(Amended Complaint, Doc. No. 24 at pp. 3-4).

Plaintiff was subsequently terminated from employment from OmniSource and contends Local 20 did nothing to assist him.

Based upon this background, Williams initiated this litigation asserting the following claims: (1) assault and battery against OmniSource and Dawson; (2) negligent hiring, detention, and supervision against OmniSource; (3) disability discrimination under the ADA, 42 U.S.C. § 12112(a) and O.R.C. § 4112.02(a)(13) against OmniSource; (4) negligent or intentional infliction of emotional distress, or both against OmniSource and Dawson; (5) defamation against OmniSource and Dawson; (6) invasion of privacy against OmniSource and Dawson; (7) breach of the collective bargaining agreement under 29 U.S.C. § 185(a) against OmniSource; and (8) breach of duty of fair representation against Local 20.

This matter is before me on the Defendants' motions for summary judgment (Doc. Nos. 35 and 37), Plaintiff's opposition (Doc. Nos. 38 and 39), and Defendants' replies (Doc. Nos. 43 and 44). This Court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons that follow, the Defendants' motions are granted.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if the movant demonstrates there is no genuine dispute of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). All evidence must be viewed in the light most favorable to the nonmovant, White v. Baxter Healthcare Corp., 533 F.3d 381, 390 (6th Cir. 2008), and all reasonable inferences are drawn in the nonmovant's favor. Rose v. State Farm Fire & Cas. Co., 766 F.3d 532, 535 (6th Cir. 2014). A factual dispute is genuine if a reasonable jury could resolve the dispute and return a verdict in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed fact is material only if its resolution might affect the outcome of the case under the governing substantive law. Rogers v. O'Donnell, 737 F.3d 1026, 1030 (6th Cir. 2013).

III. RELEVANT FACTS

Williams testified he taught Dawson how to do work orders after Dawson began working at OmniSource. (Doc. No. 36-9 at p. 67) Williams stated he did not like Dawson. (Id. at p. 73). He also testified the harassment by Dawson began about several months after Dawson became his supervisor. (Id. at p. 79). Williams stated he was harassed by Dawson beginning in the spring of 2013 at which time Dawson's father was dying. (Id.) Dawson's father passed away on June 6, 2013. (Id.) All of the relevant events occurred in 2013.

Williams complained that Dawson would harass him by getting "right in his ear," follow him around, and startle him. These incidents were described by Angelo Alfaro, a former co-worker:

(Doc. No. 36-1 at p. 2). Alfaro also described a second incident:

(Id. at pp. 2-3). Mr. Alfaro also testified he experienced being startled by Dawson and advised him to stop this behavior. (Id.) Alfaro agreed that Williams never complained to him about being mistreated by Dawson. (Id. at p. 4).

The same incident with the torch was described by plant manager, Jon Kinsman:

(Doc. No. 36-5 at p. 2).

On September 13th, Williams recounted an incident with a baler getting jammed. Williams was directed by Dawson to remove the belt from the baler. (Id. at 84). Williams asked who was responsible for the situation and was given an explanation by co-worker Ken Samples. (Id.) Williams testified there was a discussion regarding the baler and that he (Williams) became "loudly verbal but I wasn't yelling." (Id. at p. 4).

The incident was reported to Krista Zsiros, the Human Resources Manager for OmniSource. Zsiros investigated and collected statements by employees who witnessed the incidents. (Doc. No. 36-11 at ¶ 5). The unsigned statement of employee Jon Dale indicated the arguing between Williams, Hector Munoz, and Ken Samples lasted 45 minutes and that Dawson tried to stop Williams from arguing. (Id. at Exh. A, p. 1). Statements by Munoz and Samples characterized Williams as "getting out of control going off on everybody," and "unprofessional and belligerent." (Id. at pp. 3-4).

Williams called off work on Monday, September 16th to take care of issues related to his father's estate. (Id.) He returned to work on Tuesday, September 17th.

Upon his return to work, Williams contends he was confronted about resigning. (Doc. No. 36-9 at p. 23). Williams could not recall telling other employees he was quitting his job. (Id.) Williams testified that Dawson wanted his resignation:

(Id.)

(Id. at p. 24). Upon descending the stairs, Williams sat down in a golf cart and waited. Another supervisor, Tom Meredith, approached him along with an off-duty police officer and advised Williams he was suspended until further notice. Williams then left the premises and went home. (Id. at p. 25).

Dawson's account of the incident was as follows:

(Doc. No. 36-3 at pp. 6-7).

The Union steward, Robert Vasquez testified that he was summoned to speak with Williams before Meredith and the police officer arrived.

(Doc. No. 36-8 at p. 2). After Williams settled down, Vasquez reported:

(Id.) Vasquez also advised him of the suspension and that he had three days to file a grievance. (Id. at p. 3). Meredith arrived with the off-duty police officer. Vasquez advised Meredith of Williams' wishes. (Id. at p. 2). Williams was suspended and left the premises.

After Williams went home, he experienced symptoms he believed to be a heart attack. He proceeded to St. Charles Hospital and was admitted into the psychiatric ward for four days. (Doc. No. 36-9 at pp. 25-26). Dawson testified that Debra Williams, Mr. Williams' wife, called in his absence on September 18th, indicating he had been admitted to the hospital. (Doc. No. 36-3 at p. 7).

After this incident, HR Manager Zsiros conducted an investigation in which she interviewed Dawson and Munoz. She asked Munoz to write his account of the September 17th incident.

Williams was diagnosed with adjustment disorder and placed on several medications. Zsiros acknowledged receiving a facsimile from Mr. Williams' doctor seeking short-term disability. (Doc. No. 36-10 at p. 10).

On September 25, Zsiros called Williams to discuss the incident. During the telephone interview, Zsiros was concerned at Williams' agitated state and troubling statements, including:

(Doc. No. 36-11 at ¶ 7). Williams also complained about asking Dawson to get away from him and grabbing people. Zsiros talked to Williams' co-workers about Dawson's actions but was unable to find any corroborating conduct. (Doc. No. 36-10 at pp. 23-24).

After Zsiros spoke with Williams on September 25, she spoke with management. A decision was made to terminate Williams' employment. (Id. at pp. 26-28). The next day a conference call to Williams was put together by Zsiros and included the plant manager, Kinsman, the union representative, Vasquez, among others. Zsiros explained the options on leaving the company, either resignation or termination, to Williams. She advised Williams that OmniSource would not contest his seeking unemployment benefits. (Id. at pp. 29-30). Zsiros stated Williams became agitated at her comment and hung up on the conference call. (Id. at pp. 31-32).

After the call ended with Williams, Zsiros stated that the business agent, Norm Lewallen suggested getting a temporary protection order noting a potential workplace safety issue. (Id. at pp. 33-34). Zsiros and Dawson then filed a police report and obtained a temporary protection order to prevent Williams from coming onto OmniSource property. (Doc. No. 36-11 at ¶ 10).

Williams was notified by a letter, dated October 1, 2013, of his termination effective September 26, 2013. (Doc. No. 36-9 at p. 120). He set up a meeting with the Union's business representative, Norm Lewallen at Lewallen's office. Williams went to the Lewallen's office but never met with Lewallen. Williams did not file a grievance.

IV. OMNISOURCE AND DAWSON'S MOTION FOR SUMMARY JUDGEMENT

A. Assault and Battery

Under Ohio law, assault and battery is defined as "the willful threat or attempt to harm or touch another offensively, [where that] threat or attempt reasonably places the other in fear of such contact." Harris v. United States, 422 F.3d 322, 330 (6th Cir. 2005) (citations omitted). An assault constitutes the beginning of the act, which completed, constitutes battery. See Love v. City of Port Clinton, 37 Ohio St.3d 98, 99 (1988). Assault requires the actor knew with substantial certainty their act would bring about harmful or offensive contact. Smith v. John Deere Co., 83 Ohio App.3d 398, 406 (1993). "Contact which is offensive to a reasonable sense of personal dignity is offensive contact." Love, at 99, citing Restatement of the Law 2nd, Torts at Section 19.

There is no dispute Dawson touched or tapped Williams on the shoulder to get his attention on more than one occasion. Angelo Alfaro, Williams' former co-worker testified Dawson touched employees in order to get their attention. Williams conceded he did not like being touched but agreed Dawson did not engage in slapping, punching, or kicking. Williams testified that Dawson should not have put "his hands on me," emphasizing, "[y]our employees, you don't touch your employees." (Doc. No. 36-9 at p. 109). Williams did not complain about Dawson's behavior to other employees or the HR manager.

At the September 13 incident, Jon Kinsman testified Dawson touched Williams to get his attention on a safety issue. According to Dawson, Williams told him not to touch him and recalled one other occasion in which he attempted to get Williams' attention while in his work area. (Doc. No. 36-3 at pp. 14-15).

Placing one's hands on someone's shoulder to get their attention does not constitute an assault and battery. See Rice v. Reed, 117 N.E.2d 183, 66 Ohio Law Abs. 385 (1951) (evidence disclosing merely that defendant placed hands on plaintiff's shoulder was insufficient to warrant submitting case to jury). In the context of the workplace and under the circumstances presented, tapping one's shoulder to get their attention in a noisy setting does not rise to a willful and harmful touching. Monrean v. Higbee Dept. Stores, Inc., No. 99-T-0099, 2001 WL 20808 *5 (Ohio App. 2000) (contact that is offensive to a reasonable sense of personal dignity may be deemed offensive contact), citing Love, 37 Ohio St.3d at 99. In addition, there is no evidence Dawson intended to injure Williams. See e.g. Matlock v. Ohio Dept. of Liquor Control, 77 Ohio Misc.2d 13, 18 (1996) (intent to inflict injury is an essential element to assault and battery).

As Williams is unable to establish a viable cause of action for assault and battery based on the evidence presented, I find the Defendants are entitled to summary judgment on this claim.

B. Negligent Hiring, Detention, and Supervision

To establish a claim for negligent hiring, retention, and supervision, a plaintiff must demonstrate: "(1) the existence of an employment relationship; (2) the employee's incompetence; (3) the employer's actual or constructive knowledge of such incompetence; (4) the employee's act or omission causing the plaintiff's injuries; and (5) the employer's negligence in hiring or retaining the employee as the proximate cause of his injuries." Retuerto v. Berea Moving Storage and Logistics, 28 N.E.3d 392, 404 (Ohio App. 2015) (citation omitted). Establishing evidence as to each factor is necessary to survive a summary judgment challenge.

The harassment alleged by Plaintiff includes Dawson tapping him on his shoulder or following him around to question him on what he was doing. Mr. Alfaro testified he saw Dawson following Williams on one occasion but that Williams never complained about being harassed. While the behavior by Dawson may have constituted annoying or unprofessional behavior, it does not rise to the level of incompetence for purposes of a negligent hiring and supervision claim. Beckloff v. Amcor Rigid Plastics, USA, LLC, ___ N.E.3d ___, 2017 WL 2709808 at *10 (Ohio App. Jun. 23, 2017). But see Kerans v. Porter Paint Co., 61 Ohio St.3d 486, 493 (1991) (finding sexual harassment to be per se incompetent behavior).

Assuming arguendo that Dawson's conduct rose to the level of harassment, there is insufficient evidence presented that OmniSource was aware or should have been aware of this "harassment." Williams did not complain to HR or co-workers about this behavior. Nor does the Plaintiff present any evidence that OmniSource should have been aware of Dawson's alleged propensity of harassing behavior. See Herndon v. Torres, 249 F.Supp.3d 878, 888-89 (N.D. Ohio 2017).

As the Plaintiff's evidence falls short on several of these factors, the Defendants are entitled to summary judgment on this claim.

C. Disability Discrimination under the ADA and Ohio Law

A claim for a perceived disability exists under the Americans with Disabilities Act, 42 U.S.C. § 12112(a) and Ohio Revised Code § 4112.02(A). Both the ADA and Ohio statute prohibit discrimination based upon a disability. Federal and state claims are considered in tandem on this issue. See Knapp v. City of Columbus, 192 Fed. Appx. 323, 328 (6th Cir. 2006). The burden-shifting framework under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06 (1973) is the analysis implemented in a discrimination cause of action.

To establish a prima facie case of discrimination, Williams must establish that OmniSource (1) regarded him as disabled; (2) he was otherwise qualified for the job, with or without reasonable accommodation, and (3) he suffered an adverse action because of his disability. Johnson v. University Hospitals Physicial Services, 617 Fed. Appx. 487, 490-91 (6th Cir. 2015), citing Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 433 (6th Cir. 2014). Assuming a prima facie case can be established, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for its action. If the defendant can meet this factor, the burden shifts back to the plaintiff to establish the proffered reason was a pretext for discrimination.

As noted by the Sixth Circuit in Johnson, "[A] person is `regarded as' disabled within the meaning of the ADA if a covered entity mistakenly believes that the person's actual, nonlimiting impairment substantially limits one or more major life activities." 617 Fed. Appx. at 491, quoting Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521-22 (1999).

Here, Williams' amended complaint states:

(Doc. No. 24 at ¶ 25).

Williams' claim of being "regarded as" having a disability is undermined by timing and his own conduct. First, Williams' hospitalization occurred after his suspension by OmniSource. It is undisputed that Debra Williams, his wife, contacted Dawson to advise her husband had been hospitalized following the September 17th incident.

Next, Williams' conversation with the HR Manager Zsiros on September 25 raised continued concerns about workplace safety such that she conferred with management and the decision was made to terminate Williams' employment. In a conference call with Williams on September 26, Zsiros offered him an opportunity to resign and indicated the Defendant would not challenge unemployment benefits. Williams became angry and hung up on the call. At the time of Williams' suspension, he told the Union representative, Vasquez, that he was ready to be done.

Third, an employee's illness or incapacity does not automatically translate to a disability. As noted by this Circuit, an "employer's perception that health problems are adversely affecting an employee's job performance is not tantamount to regarding that employee as disabled." Johnson, 617 Fed. Appx at 491, citing Sullivan v. River Valley Sch. Dist., 197 F.3d at 810.

Based on the record before me, I do not find the Defendant perceived Williams as disabled. See Neely v. Benchmark Family Servs., 640 Fed. Appx. 429, 436-36 (6th Cir. 2016) ("it is not enough that the employer is simply aware of the plaintiff's symptoms, rather the plaintiff must show that the employer regarded the individual as `impaired' within the meaning of the ADA") (citation omitted). The Plaintiff's express wish at the time of his suspension was that he "was done," and this information was conveyed to the HR Manager. Williams' misconduct and resulting suspension does not exempt him from the Defendant's workplace rules. See Dockery v. City of Chattanooga, 134 F.3d 370 at *3 (6th Cir. 1997) ("[e]mployers must be allowed to terminate their employees on account of misconduct `irrespective of whether the employee is handicapped'") (citations omitted).

Therefore, as Williams is unable to establish a prima facie case of disability discrimination, the Defendant is entitled to summary judgment on this branch of its motion.

D. Negligent and Intentional Infliction of Emotional Distress

Ohio recognizes independent causes of action for negligent infliction of emotional distress and intentional infliction of emotional distress. Winkle v. Zettler Funeral Homes, Inc., 182 Ohio App.3d 195, 206 (2009). The elements of negligent infliction of emotional distress include: (1) the plaintiff experiencing a real or impending danger; (2) the defendant's conduct negligently caused the dangerous incident; and (3) the defendant's conduct was the proximate cause of the serious and reasonably foreseeable emotional distress. Paugh v. Hanks, 6 Ohio St.3d 72, 80 (1983). The elements of intentional infliction of emotional distress include: (1) the defendant intended to cause serious emotional distress; (2) that defendant's conduct was extreme and outrageous; and (3) the defendant's conduct was the proximate cause of the resulting serious emotional distress. Phung v. Waste Mgmt., 71 Ohio St.3d 408, 410 (1994).

The conduct at issue involves claims of assault and battery, false statements in a police report, and being escorted off the Defendant's premises by an off-duty police officer.

Ohio's Sixth District Court of Appeals recently addressed conduct underlying a claim sounding in intentional infliction of emotional distress:

Beckloff v. Amcor Rigid Plastics USA, LLC, ___ N.E.2d ___, 2017 WL 2709808 at *9 (Ohio App. June 23, 2017) (citation omitted).

Having determined Dawson's conduct did not constitute assault and battery, I do not find his conduct to be outrageous or intolerable. The same is true for the statements in the police report as Williams testified he hit the steel railing with one of his tools. His animosity towards Dawson was reflected in his discussion with the HR Manager in their conversation of September 25, 2013. In addition, the termination of employment in this circumstance does not rise to the level of outrageous conduct. See Beckloff, 2017 WL at *9-10 (no outrageous behavior where employee was counseled about his performance, his supervisor did not physically assault him, but the employee was ultimately terminated).

Accordingly, Defendants OmniSource and Dawson are entitled to summary judgment on this claim as a matter of law.

E. Defamation

"Defamation is a false publication that injures a person's reputation, exposes him to public hatred, contempt, ridicule, shame or disgrace; or affects him adversely in his trade or business." Sygula v. Regency Hosp. of Cleveland E., 64 N.E.3d 458, 465 (Ohio App. 2016) (citation omitted). To establish defamation a plaintiff must set forth the following elements: "(1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault amounting to at least negligence on the part of the publisher; and (4) the existence of special harm caused by the publication." Graham v. Best Buy Stores, L.P., 298 Fed. Appx. 487, 498 (6thCir. 2008). A qualified privilege exists as follows:

Id. Where a qualified or conditional privilege exists, the burden shifts to the plaintiff to establish the defamatory statements were made with "actual malice." Lakota Loc. School Dist. Bd. of Edn. v. Brickner, 108 Ohio App.3d 637, 647 (1996).

In his amended complaint, Williams contends he was falsely accused of: (1) "menacing" in a police report; (2) banging a metal crowbar against a railing; (3) threating to "kill that guy [Dawson] when he sees him,"; (4) threatening to hit Dawson in the face with a crowbar; and (5) referencing mass shooting incidents when speaking with the HR Manager. (Doc. No. 24 at ¶ 33). The defamatory statements alluded to are contained in the police report of September 25, 2013. (Doc. No. 36-9 at p. 121-22).

At the time of the September 17 incident, Williams was suspended and escorted from the premises due to threatening behavior towards Dawson. In his deposition, Williams acknowledged hitting his tool on the railing as he walked behind Dawson and another supervisor. Williams denied making threatening statements towards Dawson or alluding to mass shootings during his conversation with the HR Manager on September 25.

As Williams' employer, OmniSource had concerns about workplace violence and suspended the Plaintiff on September 17. An investigation was conducted by the HR Manager during Williams' absence. Zsiros spoke with Williams on September 25 for approximately 29 minutes about the incident and a plan to move forward. During a conference call with Zsiros the following day, Williams was given a choice between resigning and being terminated, at which time he became agitated and hung up on the call. It was after this call that Zsiros and Dawson met with the OmniSource off-duty police officer.

The record before me supports a privilege argument. Statements to law enforcement which "bear some reasonable relation to the activity reported" are deemed privileged. Lasater v. Vidahl, 979 N.E.2d 828, 831 (Ohio App. 2012) citing DiCorpor Inc. v. Sweeney, 69 Ohio St.3d 497, 506 (1994). The burden shifts to Williams to establish that the defamatory statements were made with "actual malice." As the Plaintiff has failed to establish the statements were made by the Defendants with actual malice, the Defendants are entitled to judgment on the claim of defamation.

F. Invasion of Privacy

Ohio recognizes a common-law action for invasion of privacy under either a false light invasion theory or one of unreasonable intrusion. As the Plaintiff's amended complaint and response to the summary judgment motion focus on the false light invasion variant, I analyze the Defendants' motion under that theory.

The Supreme Court of Ohio characterizes a claim for false light invasion of privacy as follows:

Welling v. Weinfeld, 113 Ohio St.3d 464 at syllabus (2007). The Welling Court also recognized the difficulty in proving a false light claim. Id at. 471.

In his amended complaint, Williams alleges the "Defendants held Plaintiff in a false light and/or wrongfully intruded into his private activities in such a manner as to cause outrage or mental suffering, shame, humiliation to a person of ordinary sensibilities. Defendants invaded Plaintiff's privacy to his damage." (Doc. No. 24 at ¶ 39). Williams argues publicizing an attack on another employee impairs his ability to be hired by a new employer. Additionally, the Plaintiff contends he was greatly offended and damaged by the public remarks in the police report, which is available as a public record. I disagree.

Publicity has been defined in the following manner:

Id. at 471-72, citing Restatement of the Law 2d, Torts, Section 652D, Comment a. While a police report is available to those seeking that information, I do not find it is a communication that is necessarily certain to reach the public. See Linetsky v. City of Solon, Case No. 1:16-cv-52, 2016 WL 6893276 *15 (N.D. Ohio 2016).

Assuming the police report is considered certain to reach the public, the statements therein are subject to a qualified privilege as they concerned matters of a common business interest and were relevant to the safety of their employees. See Evely v. Carlton Co., 4 Ohio St.3d 163, 165 (1983). See also Lasater v. Vidahl, 979 N.E.2d at 831. Finally, the Plaintiff has failed to establish the statements made in police report were objectively false. See Dautartas v. Abbott Laboratories, 2012-Ohio-1709, 2012 WL 1344030 *15 (Ohio App. 2012).

For these reasons, the Defendants are entitled to summary judgment on the invasion of privacy claims.

V. OMNISOURCE AND LOCAL 20'S MOTIONS REGARDING THE HYBRID CLAIMS

A. The Claim Against OmniSource-Breach of Contract

Under Section 301 of the Labor-Management Relations Act, an employee may bring an action against his employer for breach of the contract and simultaneously institute suit against a union for breach of the duty of fair representation in a hybrid action:

DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164 (1983).

In this case, OmniSource seeks summary judgment on the hybrid action as Williams failed to file a grievance as required by the CBA. The Plaintiff charges OmniSource terminated him in violation of the company's work rules and without a hearing.

OmniSource's employee guideline sets forth a list of 35 categories of prohibited conduct. One of those categories includes "[t]hreatening, fighting or instigating a fight on Company premises." (Doc. No. 36-9 at p. 67-68). The guidelines on work rules also state "[a]n employee who fails to maintain proper standards of conduct or who violates any of the following rules shall be subject to disciplinary action, up to and including termination." (Id.)

The CBA between OmniSource, Toledo Yard Division and Local 20 addresses the grievance procedure as follows:

(Doc. No. 36-9 at pp. 88-89). (Emphasis added).

Under the terms of the CBA and in order to challenge OmniSource's decision to suspend or terminate him, Williams had to avail himself of the grievance procedure. He failed to do so.

Even assuming he filed a timely grievance, Williams has not established that OmniSource breached the contract. OmniSource's employee guideline expressly warns of disciplinary action for disobeying proper standards of conduct, "up to and including termination." (Doc. No. 36-9 at p. 67). Article II of the CBA also speaks to management rights as follows:

(Doc. No. 36-9 at p. 80).

In this instance, exhausting grievance procedures is a requirement. Winston v. General Drivers, Warehouseman & Helpers, Local Union No. 89, 93 F.3d 251, 255 (6th Cir. 1996). There is no evidence of a grievance being filed after the suspension or termination nor is it argued the grievance would have been futile. Accordingly, I find OmniSource is entitled to judgment as a matter of law on the breach of contract claim.

B. The Claims Against Local 20-Breach of Duty of Fair Representation

The duty of fair representation by a bargaining representative includes serving "the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Vaca v. Sipes, 386 U.S. 171, 177 (1967).

A union's behavior is arbitrary where "the union's behavior is so far outside a `wide range of reasonableness.'" . . . "as to be irrational." Air Line Pilots Ass'n Int'l v. O'Neill, 499 U.S. 65, 76 (1991) (internal citations omitted). Actions constituting bad faith have been characterized as "`act[ing] with an improper intent, purpose, or motive . . . encompassing[ing] fraud, dishonesty, and other intentionally misleading conduct." Merritt v. International Ass'n of Machinists and Aerospace Workers, 613 F.3d 609, 619 (6th Cir. 2010) (citations omitted). The grievance process, however, need not be "error-free." Garrison v. Cassens Transport Co., 334 F.3d 528, 538 (6th Cir. 2003), cert. denied, 540 U.S. 1179 (2004).

In his amended complaint, Williams contends he never met with the Union's business agent despite appearing in person at his office and making multiple attempts to reach him by phone. He states that "the Union acted negligently, arbitrarily, and in a perfunctory fashion and in a manner devoid of rational basis." (Doc. No. 24 at ¶ 47).

After receiving his termination letter, Williams testified as follows:

(Doc. No. 36-9 at p. 32). Williams further testified:

(Id. at p. 50). Norm Lewallen testified there was an arranged meeting:

(Doc. No. 36-6 at p. 3).

There is no dispute that a meeting was set up as between the Union representative and the Plaintiff. Lewallen advised Williams of the timeline in which to file the grievance. There is also no dispute the parties failed to meet. This failure to meet, without more, is not "so far outside a wide range of reasonableness that it is `wholly irrational.'" O'Neill, 499 U.S. at 78. It does not rise to the level of constituting arbitrary conduct by the Union. See Burneson v. Thistledown, Inc., 2007 WL 1339839 *3 (6th Cir. 2007). See Garrison, 334 F.3d at 538 ("[m]ere negligence on the part of a union does not satisfy this requirement," citing United Steelworkers of Am. v. Rawson, 495 U.S. 362, 372-73 (1990)).

Finally, Williams does not present arguments or evidence that the filing of a grievance would have been futile, thereby relieving him of the grievance procedure. See Glover v. St. Louis-San Francisco Ry. Co., 393 U.S. 324, 330 (1969). Accordingly, I find the Defendant Union is entitled to summary judgment on the breach of duty of fair representation as a matter of law.

VI. CONCLUSION

For the reasons stated above, Defendants' OmniSource and Dawson's motion for summary judgment (Doc. No. 35) is granted. Additionally, Defendant Local 20's motion for summary judgment (Doc. No. 37) is also granted. This case is closed.

So Ordered.