BARRINGTON

v.

LOCKHEED MARTIN

Order

SPAULDING, United States Magistrate Judge.

In this case, Plaintiff Barbara Barring-ton asks the Court to vacate an arbitration award. Doc. No. 1. In support of her motion, which the Court has treated as a complaint, Barrington submitted a number of documents, including the transcript of the arbitration proceeding.¹

Id.

After conducting discovery, the parties filed cross-motions for summary judgment, and responses thereto, as follows:

(1) Plaintifff’s] Motion for Summary Judgment/Memorandum of Law in Support/ Demanding Jury Trial, doc. no. 128, and the responses thereto, doc. nos. 132 & 136;

(2) Defendant Lockheed Martin Corporation’s Motion for Summary Judgment, doc. no. 122, and the response thereto, doc. no. 134;

(3) Motion for Summary Judgment ... of Defendant United Auto Workers Local 788, doc. no. 124, and the response thereto, doc. no. 134.

*1157 In support of her motion for summary judgment, Barrington relied upon the documents submitted with her motion to vacate the arbitration award as well as additional documents. Doc. No. 128. These additional documents include the Deposition of Barbara Klein (Klein Dep.), doc. no. 128-12, and the Deposition of Georgi-Ann Bargamian (Bargamian Dep.), doc. no. 128-13. In support of her response to the defendants’ motions for summary judgment, Barrington submitted additional documents, including the Deposition of Ron Gettelfinger (Gettelfinger Dep.), doc. no. 134-3, and the Affidavit of Eunice M. Stokes-Wilson (Stokes-Wilson Aff.), doc. no. 134-5.

In support of its motion for summary judgment, Defendant Lockheed Martin Corporation (LMC) submitted the Deposition of Barbara Joyce Barrington (Bar-rington Dep.), and supporting exhibits, doc. no. 123-2 through 123-44, and the Declaration of Scott C. Israel (Israel Deck), and supporting exhibits, doc. no. 123-45 through 123-50.

In support of its motion for summary judgment, Defendant United Auto Workers Local 788 (Local 788), submitted the Affidavit of Michael J. Barnette (Barnette Aff. II), doc. no. 125. It also relied on an earlier affidavit by Barnette, doc. no. 74 (Barnette Aff. I), and the Affidavit of Garry Mason, doc. no. 72 (Mason Aff.). In response to Barrington’s motion, Local 788 also relied on the Affidavit of Barbara A. Klein, doc. no. 68 (Klein Aff.).

I have considered all of the papers and supporting documents submitted by the parties, and I am otherwise thoroughly familiar with the record in this case. The case has been referred to me for disposition under 28 U.S.C. § 636(c) and pursuant to the consent of the parties. Doc. No. 93.

I. STATEMENT OF FACTS.

A. Summary of the Events Leading to the Grievance.

1. The Collective Bargaining Agreement.

Local 788 represents production and maintenance employees at Lockheed Martin Missiles and Fire Control — Orlando. Israel Deck ¶ 2. Barrington was an employee of Lockheed Martin Missiles and Fire Control — Orlando at the time of the events leading to the arbitration, and she was a member of Local 788. TR. I at 24, 116; TR. II at 6; Barrington Dep. at 140.

LMC, Local 788 and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), of which Local 788 is a part,² entered into a collective bargaining agreement (CBA) effective from November¹, 2003, to October 31, 2007. Israel Deck ¶ 3, & ex. A. Under the CBA, LMC has the right to discharge employees “for cause.” Id., ex. A, Art. II. The CBA also provides a grievance procedure to resolve disputes between the parties, id., Art. VIII, which culminates in binding arbitration if the dispute is not resolved during the grievance process, id., Art. IX.

2. Work Place Incidents.

During the lunch hour at work on January 29, 2004, Barrington offered to cut and groom the hair of two of her co-workers, Wayne Henry and Rickie Wilson. TR. I at 80. At the time she made the offer, Wilson was wearing headphones and listening to music. TR. I at 77-78. Wilson declined Barrington’s offer, but Barrington did not hear him. TR. I at 81-82; TR. II at 33, 49. Barrington misconstrued Wilson bobbing his head while listening to the music as assenting to her offer. TR. II at 49. *1158 Thereafter, Barrington trimmed Wilson’s hair. TR. II at 34, 49.

Initially, Wilson was not upset by Bar-rington’s actions. TR. I at 85, 89. However, after coworkers teased him about the incident, Wilson became upset. TR. I at 85; TR. II at 9, 41. JoAnn McCarthren, another LMC employee, heard Wilson mutter that he was angry. TR. I at 117; TR. II at 91. Another employee approached Barrington and said that she should be “walked out” for cutting Wilson’s hair. TR. II at 51.

One or more employees encouraged Wilson to file a complaint regarding the incident. TR. II at 11, 38, 52. Barrington later encountered McCarthren in the restroom and asked McCarthren whether she had encouraged Wilson to file a complaint. TR. I at 54. McCarthren said that she had not done so. McCarthren and Bar-rington argued about the issue. TR. 1 at 118-19; TR. II at 52-53.

3. Internal Investigation.

LMC issued Guidelines for Professional Conduct which prohibit “[h]arassment, hazing or horseplay,” “[t]hreatening or creating a hostile work environment,” and “[disrupting the workplace.” Compl. ex. B (Arbitrator’s Decision) at 9. LMC also has a written policy against threats and violent conduct. Among other things, the policy prohibits conduct “for which the intended result is threatened or actual harm to people or property. Examples ... include but are not limited to: threats of violence (including implied threats), assaults, battery (including ... unwelcome physical contact) ... intimidating ... [.] This policy governs conduct in the workplace as well as off-premises situations with a relationship to the workplace.” Id. Alleged violations of these provisions are referred to the LMC Workplace Violence Committee to determine what steps to take if an employee violates the provisions. TR. I at 33.

Phil Conduff, the general foreman of the work place where the hair-cutting incident occurred, learned about the incident the next day. TR. I at 108. He left a message about the incident with Lester King, the manager of human resources and union relations at LMC, and asked that he become involved. TR. I at 24. King later met with Wilson, who gave a written statement. TR. I at 24; TR. II at 11-12, 15, 26-28. McCarthren also filed a written complaint against Barrington, demanding an apology for the argument that occurred in the restroom. TR. I at 120.

Thereafter, King held a meeting with Wilson, Barrington, Henry and a union representative. King instructed Barring-ton to write up her version of the events, which Barrington did. TR. I at 27; TR. II at 31; Barrington Dep., LMC exs. 1 & 2.

Subsequently, Wilson gave King a written request to withdraw his complaint against Barrington because he did not want Barrington to be disciplined. TR. I at 28-29; Barrington Dep., LMC ex. 8.

On February 3, 2004, Belinda McGill, another employee, filed a complaint against Barrington alleging that Barring-ton threatened her. TR. I at 47-48. The same day, Barrington filed a cross-complaint against McGill. TR. II at 59.

King completed his investigation of the hair-cutting incident and the complaints filed by Barrington, McGill and McCar-thren. TR. I at 40-41. Greg A. Karol, director of human resources and union relations, interviewed Wilson and reviewed the results of King’s investigation. TR. I at 68. Thereafter, the results of the investigation were presented to the Workplace Violence Committee. TR. I at 40.

Meanwhile, Barrington requested and was granted medical leave from February *1159

Based on the internal investigation, the Workplace Violence Committee determined that Barrington should be terminated. TR. I at 33. This decision was made while Barrington was on medical leave. TR. I at 66. However, because it was company policy not to terminate someone while they were on approved leave, the committee did not terminate Barrington until the end of her leave. Id.

On March⁴, 2004, before she learned of the Workplace Violence Committee’s decision, Barrington filed lawsuits in Florida state court against McCarthren and McGill. In the complaints, Barrington alleged that McCarthren and McGill made defamatory statements about her. TR. II. at 66-67; Barrington Dep., LMC exs. 12 & 13. Barrington later voluntarily dismissed these cases. TR. II at 67.

On March 30, 2004, King wrote Barring-ton a termination letter that reads as follows:

On January 29, 2004, while in the manufacturing area, you cut an employee’s hair without his permission. This action is in violation of Company policies prohibiting horseplay, unwanted physical contact and causing a disruption in the workplace.

A disciplinary committee consisting of members of senior management has reviewed this action and has determined that your employment be terminated effective immediately.

Compl. ex. C.

B. Grievance and Arbitration Proceedings.

In April 2004, Barrington filed a grievance regarding her termination pursuant to the provisions of the CBA. Compl. ex. E; CBA Art. VIII, sec. 1. The grievance addressed only her termination as a result of cutting Wilson’s hair without his consent. Compl. ex. E. The grievance was not resolved by LMC through its internal levels of review. See Compl. ex. E. The matter was then submitted to arbitration. See CBA Art. IX.

Under the CBA, the arbitrator’s decision “shall be final and binding on [LMC], the Union, and the employee ... involved,” subject to certain limitations not relevant to the present case. Id. In terms of the scope of the arbitration, the CBA reads as follows:

The arbitrator shall consider only those issues, including any Amendments that were made pursuant to [the Article of the CBA dealing with grievances], which have been properly carried through all steps of the Grievance Procedure. The arbitrator shall afford to the Company and the Union a reasonable opportunity to present evidence, witnesses, and argument. Persons testifying may be sworn at the request of either party.... The arbitrator shall have no authority to add to, subtract from, modify or amend any provisions of this Agreement.

Id. at sec. (c).

Barrington was represented by Michael Barnette, who is the International Representative for the UAW, Region 8, which includes Florida. Barnette Aff. I ¶¶ 1, 5. Barnette had extensive experience as a union advocate at arbitrations. Id. ¶ 6. Before the arbitration began, LMC tendered settlement offers to Barnette. • Bar-nette advised Barrington that LMC would not make a settlement offer if it could prove its case, and he recommended that she not accept the offers. Barrington Dep., 180-88 & Union ex. 7. Barrington did not accept a settlement offer. Arbitrator Robert G. Williams began the arbitration hearing on February¹, 2005. TR. I. During this hearing, King, Karol, Henry, McCarthren, and Conduff testified. *1160 TR. I. Wilson was no longer employed by LMC, and his whereabouts were unknown. TR. I at 35; Barnette Aff. I ¶ 10. Accordingly, he did not testify at the hearing.

Counsel for LMC elicited testimony from McCarthren about the defamation lawsuit Barrington filed against her. TR. I at 120. Barrington avers that Barnette “restrained” her from testifying, despite her pleas that she be permitted to testify. Barrington Dep. at 9, 12, 31. Barrington later surmised that Barnette did not call her to testify in order to protect McCar-thren and McGill, but she conceded that she had no evidence to support her suspicion. Id. at 35-38, 261.

Barrington also requested that Barnette move to admit Wilson’s affidavit, and call other employees, which Barnette did not do. Id. at 28, 33. Barnette attests that he did not call Barrington to testify because he believed, among other things, that by not producing Wilson, LMC had failed to satisfy its burden of proof. Barnette Aff. I ¶10.

Because of her dissatisfaction with the way Barnette handled the arbitration, Bar-rington wrote Arbitrator Williams a letter in which she requested that the hearing be reopened so that she could testify. Bar-rington Dep., LMC ex. 3. She also sent a letter to the International Board of the UAW in care of Ron Gettelfinger, President of the UAW, and Gary Castell, Regional Director of the UAW, requesting that the hearing be reopened and complaining about Barnette. Compl. ex. J. Gettelfinger forwarded her letter for review. Gettelfinger later learned that the arbitration had been reopened as Barring-ton requested. Gettelfinger Dep. at 7-10.

Meanwhile, Arbitrator Williams wrote LMC and the Union to determine whether they opposed reopening the hearing. Bar-rington Dep., LMC ex. 5. Barnette wrote a responsive letter indicating that “[e]ven though the Union feels it has met its obligations, we will agree to resume the hearing .... ” Barrington Dep., LMC ex. 4. Arbitrator Williams telephoned Barnette to ask about the Union’s intentions with respect to a reopened hearing. Barrington Dep., LMC ex. 6 at 2. Barnette spoke with Arbitrator Williams “only for the purpose of confirming a date for the continuation of the arbitration hearing.” Barnette Aff. II ¶ 7.

When Barrington discovered that Bar-nette had spoken with Arbitrator Williams, she became concerned that Barnette had violated ethical rules, and may have made statements prejudicial to her case. Bar-rington Dep. at 49-55; Barrington Dep., Union ex. 5. Barrington then submitted a request to the UAW that she be appointed a different representative, because she believed that Barnette would not represent her adequately because he was angry with her for contacting Arbitrator Williams. Barrington Dep. at 50-55. She also requested appointment of a new arbitrator. Id. at 56.

Georgi-Ann Bargamian, an associate counsel for the UAW, responded to Bar-rington’s request. She explained that Arbitrator Williams had been selected by the Union and LMC under the provisions of the CBA and relevant rules. She also indicated that contact between Barnette and Arbitrator Williams to schedule a date for reopening the arbitration hearing was not inappropriate, and raised no concern about the arbitrator’s impartiality or Bar-nette’s ability to prosecute her grievance. See Doc. No. 128-4 (letters from Georgi-Ann Bargamian to Barrington); see also Barrington Dep., Union ex. 7 (Feb. 18, 2005, letter from Barrington to Gary Cas-tell).

In the meantime, Arbitrator Williams reopened the hearing. Doc. No. 123-18. The hearing resumed on April 13, 2005. At this hearing, Barrington, Wilson, King, *1161 and Barrington’s coworkers, Ronald Sutton and Patricia Carson, testified. TR. II. Barrington avers that LMC tried to introduce a document allegedly written by Wilson that she believed was fraudulent because Wilson testified that it did not look like his handwriting. Barrington Dep. at 46 & LMC ex. 8. After the hearing concluded, Barrington wrote a letter complimenting Barnette’s handling of the second hearing. See Compl. ex. L (April 15, 2005, letter from Barrington to Bargami-an); accord Compl. ¶ 21; Barrington Dep. at 56.

Barrington worked with Barnette on the post-arbitration brief. Barrington Dep. at 58-59, 123-41 & Union exs. 11, 12. Among other things, Barnette reviewed the brief Barrington wrote and incorporated some of her suggestions into the post-arbitration memorandum he filed. Bar-nette Aff. ¶ 15. However, he did not incorporate all of her suggested revisions. Bar-rington Dep. at 60-62. Barnette did not return all of Barrington’s telephone calls during this period. Barrington Dep. at 59.

On July 27, 2005, Arbitrator Williams issued his Opinion and Award. He framed the question presented as follows: “Was [Barrington] discharged for just cause and, if not, what shall be the remedy?” Arbitrator’s Decision at 2. He concluded that while Wilson had not consented to his hair being cut, under the progressive discipline policy in place Barrington should only have been issued a written warning, not terminated, for the hair-cutting incident. Id. at 16-17. However, he concluded that Bar-rington intentionally harmed McCarthren and McGill when she filed the lawsuits against them, which conduct supported her termination. Id. at 17. In doing so, he acknowledged that the lawsuits were not a stated basis for terminating Barrington. Id. at 21. However, he concluded that because Barrington’s “pursuit of frivolous lawsuits arose out of conduct that was the subject of the case,” and that any post-award discipline based on this conduct would be barred, it was appropriate for him to consider it. Id. at 22. Accordingly, he denied Barrington’s grievance, and upheld LMC’s decision to terminate her. C. Post-Arbitration Matters.

After Arbitrator Williams issued his decision, Barrington filed a request for review with the NLRB, doc. no. 128-6, which she later withdrew, doc. no. 128-11 at 11. She requested that both Local 788 and the UAW file an action in court to vacate the arbitration award. Barrington Dep., LMC ex. 11; Doc. No. 128-7 at 2-8 (September², and September 18, 2005, letters from Barrington to Bargamian). She also sent a letter to Bargamian complaining about Barnette’s representation. Barrington Dep., Union ex. 14. 3

Bargamian advised Barrington that while the UAW disagreed with the arbitrator’s analysis, the UAW has an institutional policy not to move in court for the vacation of an arbitration decision “no matter how bad it thinks the arbitration decision is. And we do that so employers will bargain binding arbitration clauses with us.” Bargamian Dep. at 17; see also Mason Aff. ¶¶ 2-3; Barnette Aff. I ¶ 17. The UAW advised the NLRB of this policy as well. Doc. No. 128-11 at 2-6. Barrington acknowledged that she was unaware of Local 788 ever having moved to vacate an arbitration decision. Barrington Dep. at 126-27.

Bargamian also sent to Barrington a copy of the UAW Constitution. Bargami-an Dep. at 7; Mason Aff. ¶ 5. The UAW Constitution provides for several levels of appeal regarding the handling of a grievance. After seeking relief at the appropri *1162 ate local levels, review of decisions can be sought at the international level by sending a written request for review to the appropriate reviewing body in care of the International President. The International President has the authority to decide an appeal directly rather than submitting it to an Appeals Committee. However, “[i]n any appeals involving the handling of a grievance against an employer, the decision of the International President shall be submitted to the Nine (9) Member Committee of the International Executive Committee.” UAW Const. Art. 33 sec. 3(d). If dissatisfied with the decision of the International Executive Committee, the union member can appeal the decision to the Public Review Board. Id. Art. 33 sec. 3(f). The Public Review Board has the power to require the Union to reinstate the grievance. Klein Dep. at 12; Klein Aff. ¶ 11; see also Stokes-Wilson Aff. The UAW Constitution further provides that “[i]t shall be the duty of any individual or body, if aggrieved by any action, decision or penalty imposed, to exhaust fully the individual or body’s remedy and all appeals under this Constitution and the rules of this Union before going to a civil court or governmental agency for redress.” Union Const., Art. 33, sec. 5.

Barbara Klein, Executive Director of the Public Review Board, averred that “[a]n examination of the files of the [Public Review Board] reveals no appeal was filed by” Barrington. Klein Aff. ¶ 12; Klein Dep. at 4. Eunice M. Stokes-Wilson, the administrative assistant to Gettelfínger, averred that a review of the records of the President’s Office did not reveal any appeal by Barrington. Stokes-Wilson Aff. at 3.

Barrington then filed the present action in this Court. Doc. No. 1.

II. STANDARD OF REVIEW.

Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The Supreme Court explained the rule as follows:

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is “entitled to judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “The Court must consider all inferences drawn from the underlying facts in a light most favorable to the party opposing the motion, and resolve all reasonable doubts against the moving party.... If material issues of fact exist, the Court must not decide them, but rather, must deny the motion and proceed to trial.” Kitchings v. Fl. United Methodist Children’s Home, Inc., 393 F. Supp. 2d 1282, 1291 (M.D.Fla.2005) (internal citations omitted).

“ ‘Genuine disputes are those in which the evidence is such that a reasonable jury *1163 could return a verdict for the non-movant. For factual issues to be considered genuine, they must have a real basis in the record.’ ... For instance, mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F. 3d 1321, 1325-26 (11th Cir.2005)(quoting Mize v. Jefferson City Bd. of Educ., 93 F. 3d 739, 742 (11th Cir.1996)).

III. ANALYSIS.

A. Subject-Matter Jurisdiction and Standing.

In her motion to vacate the arbitration decision, Barrington asserts that the arbitrator exceeded his authority by finding that her termination was justified based on issues that were not part of her grievance. She also contends that the arbitration decision should be vacated because it was procured by corruption, fraud, or undue means, including that the Union violated its duty of fair representation. She also contends that LMC committed fraud with respect to the arbitration proceedings by use of allegedly false documents. Doc. No. 128 at 5. The Honorable Patricia C. Faw-sett, formerly the presiding judge in this case, liberally construed Barrington’s motion to vacate the arbitration award as stating a hybrid cause of action under for breach of the duty of fair representation and under § 301 of the Labor-Management Relations Act (LMRA), 29 U.S.C. § 185, and a cause of action under the Federal Arbitration Act (FAA), 9 U.S.C. § 1. Doc. No. 40; see Doc. No. 1 ¶ 17.

Judge Fawsett determined that this Court has subject-matter jurisdiction in this case because Barrington’s argument that the Union did not fairly represent her arises under a federal law, specifically § 301 of LMRA.⁴ Doc. No. 40. Judge Fawsett also determined that the United States Court of Appeals for the Eleventh Circuit would likely hold that the procedures of the FAA apply to an arbitration conducted pursuant to the provisions of a collective bargaining agreement to the extent that those procedures do not contradict the more specific provisions of LMRA. Id.

Judge Fawsett further found that Bar-rington has standing to challenge the arbitrator’s decision, even though she is not a party to the CBA. She based this decision on Barrington’s assertion that she was injured by the Union’s breach of its duty of fair representation. Id.

While LMC disagrees with Judge Fawsett’s decision regarding the applicability of the FAA to the present case, it has not cited any intervening change in the law or new, material facts. Accordingly, I will not revisit her decision.

B. Whether The Arbitration Decision Should Be Vacated Because Local 788 Violated Its Duty To Represent Barrington Fairly.

The United States Supreme Court has held that an employee represented by a union may challenge a decision made by an arbitrator pursuant to the grievance mechanism of a collective bargaining agreement if the employee can establish *1164 that the union violated its duty to represent her fairly at the arbitration and that her discharge was contrary to the contract. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). “A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). It is insufficient merely to establish that the underlying grievance was meritorious. Id. at 194, 87 S.Ct. 903. Accordingly, in resolving the pending motions for summary judgment, it is appropriate to address first Barrington’s claim that Local 788 violated its duty to represent her fairly during the arbitration.

Barrington contends that the Union violated its duty to represent her fairly in a number of ways, discussed in more detail below. LMC and Local 788 contend that Barrington cannot prevail on this issue because she did not exhaust internal union procedures to resolve the issue of the fairness of the Union’s representation of her. LMC and Local 788 also contend that the undisputed facts establish as a matter of law that the Union did not violate its duty to represent Barrington fairly. 5 I will address the failure to exhaust internal procedures before turning to the merits of the claim.