Davison v. International Brotherhood of Teamsters, Local Union No. 627
Filing
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ORDER entered by Chief Judge James E. Shadid on 02/20/2015. For the reasons set forth above, Defendant International Brotherhood of Teamsters, Local Union No. 627's Motion for Summary Judgment 19 is DENIED. This matter remains set for Final Pretrial on March 6, 2015 and Jury Trial on April 13, 2015. See full written Order.(JS, ilcd)
E-FILED
Friday, 20 February, 2015 01:54:33 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
SHARON DAVISON D/B/A
SK DAVISON,
)
)
)
Plaintiff,
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v.
)
)
INTERNATIONAL BROTHERHOOD OF )
TEAMSTERS, LOCAL UNION NO. 627, )
)
Defendant.
)
Case No.: 13-1507
ORDER
This matter is now before the Court on Defendant International Brotherhood of
Teamsters, Local Union No. 627’s (“Local 627”) Motion for Summary Judgment [19]. This
matter has been fully briefed. For the reasons set forth below, Defendant’s Motion for Summary
Judgment is DENIED.
STATEMENT OF FACTS
The Morton Interchange Project (“Project”) is a highway construction project at the
intersection of I-155 and 74 in Morton, Illinois, located in Tazewell County. Fred Weber, Inc.
(“Fred Weber” or “FWI”) was the primary general contractor on the Project. The Project was
covered by a Project Labor Agreement (“PLA”) between the Illinois Department of
Transportation (“IDOT”) and other unions. Under Article 1.5 of the PLA, the applicable area
collective agreement is the Articles of Construction Agreement between the Associated General
Contractors of Illinois and the Illinois Conference of Teamsters (“AGC Agreement”). Fred
Weber signed the AGC Agreement, but the agreement only applied to on-site work. Ed Walch
(“Walch”) was FWI’s project manager for the Interchange Project and his responsibilities
included working with FWI’s team to coordinate the Project, administer subcontracts and
purchase orders, hold pre-construction meetings with contractors and unions, keep track of the
budget, and serve as a point of contact for any labor grievances.
Around October or November 2012, Plaintiff Sharon Davison (“Sharon”), who does
business as S.K. Davison (“SKD”) learned about the Interchange Project from the IDOT’s
website. On October 31, 2013, SKD submitted a bid for various types of trucking services on the
Interchange Project. The bid included hourly rates for non-covered workers, hourly rates for onsite work, which would be prevailing wage, a rate for on and off-site wet batch, and tonnage
rates for material hauling. Based on SKD’s bid, FWI created at DBE Participation Statement that
indicated SKD would be performing $3,155,250.00 worth of labor on the Interchange Project; of
that amount, $1.9 million worth of work would be on-site trucking work. In addition, to the onsite trucking work, SKD anticipated performing on-site mowing work. In the early part of 2013,
Sharon or Ed Davison contacted Greg Wheet (“Wheet”), Local 627’s Secretary-Treasurer,
regarding the Interchange Project. The Davisons requested a sample copy of hauling agreements,
but stated they would not sign Local 627’s AGC Agreement.
Local 627 was informed early on that SKD would be performing both on-site and off-site
work; but what was unclear, was the specific volume of off-site work SKD would perform. In
March 2013, there was a pre-job meeting concerning the Interchange Project. Both Sharon and
Ed were present; Wheet was present also. During the meeting, Wheet asked Sharon if SKD had a
contract for trucking on the Project, to which she responded, “I don’t have a contract on
trucking.” Ed Davidson told Local 627 that SKD would be performing “transportation” work. At
the time of the pre-job meeting, Sharon anticipated performing on-site trucking work on the
Interchange Project.
On April 5, 2013, Local 627 and the Davisons had a meeting to determine what work
SKD would be performing on the Interchange Project. Wheet and Local 627’s principal officer
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Keith Gleason (“Gleason”) were also in attendance. At that meeting, Gleason indicated if SKD
planned on performing on-site trucking work it would need to sign a letter of assent and it would
be bound by the AGC Agreement. The Davisons told Local 627 that SKD would perform
trucking, which included both on-site and off-site work. Sharon also told Local 627 that SKD
would sign the AGC Agreement if the union would make an amendment to the AGC Agreement
that excused SKD from contributing to the Central States Pension fund. After the April 5th
meeting, SKD decided to terminate the mowing contract and rescinded the Letter of Assent
because they did not want to be subject to the PLA. Despite rescinding both the mowing contract
and Letter of Assent, SKD still intended to perform on-site trucking work related to Interchange
Project.
On April 10, 2013, Local 627 filed a grievance against FWI stating FWI was violating
Articles 1.2, 1.5, and 1.5 of the PLA by allowing SKD to work on the Interchange Project
without requiring SKD to sign a collective bargaining agreement, a letter of assent, or otherwise
agree in writing to comply with the applicable agreements. The grievance did not specify that
Local 627 was only concerned about SKD performing on-site work.
On April 16, 2013, a grievance meeting was held between Local 627 and FWI. Gleason
and Hopkins were present for Local 627 and Walch and Kevin Wallis (“Wallis”) were present
for FWI. During the meeting, FWI indicated they would only use SKD for off-site work and no
on-site work. During the meeting there was a disagreement about what was considered on-site
versus off-site work; however, FWI assured Local 627 it would monitor the work being
performed and ensure SKD would not perform on-site work. On April 16, 2013, Walch sent an
e-mail to Sharon in which he indicated he was working with Local 627 to determine what type of
hauling is acceptable without the hauling company signing the local union contract. Walch also
wrote “the issue of being a subcontractor or not is playing a part in whether off site hauling is
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allowable without a signed Teamster agreement.” Walch Depo at 106:10-16, Plaintiff’s Exhibit
15. As of April 16, 2013, Local 627 has not told Walch that SKD, as a non-signatory to its
contract, could perform off-site work.
On April, 18, 2013, Walch asked Sharon to sign a letter indicating that SKD chose not to
sign Local 627’s agreement and therefore would be unable to perform the work as originally
submitted. The letter also stated that the negotiations were still ongoing and Walch hoped to be
able to use SKD as allowed by the project specification. As of April 18, 2013, Local 627 had not
told Walch that FWI could use SKD for off-site work.
On April 25, 2013, Walch sent Gleason a Letter of Understanding stating “FWI plans to
use Owner Operators signatory to Teamsters Local 627 or member of Local 627 in FWI or rental
trucks to perform the following On Site (Covered) Hauling.” Plaintiff’s Exhibit 9. The letter also
stated “FWI plans to use S.K. Davison tandems to perform the following Off Site (Non-Covered)
Hauling.” Id. On May 1, 2013, Gleason sent Walch a letter rejecting the Letter of Understanding.
Specifically, the letter stated, “we have an issue with use of any hauler, including SKD, to
perform working within the scope of the PLA or AGC Agreement without complying with such
Agreements.” Pl. Exh. 10. Walch understood this to mean Local 627 was requiring only unionrepresented employees be used to perform the off-site hauling work. The May 1, 2013 letter did
not indicate that any company paying area standards could perform hauling work, regardless of
whether they were a signatory to the union contract. At the time of the May 1, 2013 letter, the
April grievance was still pending and was not specifically limited to on-site work by its terms.
However, after FWI indicated it would not use SKD for on-site work, the Local 627 did not
pursue its grievance, but rather held it in abeyance, which meant Local 627 reserved the right to
bring it back up in the future and the grievance was not officially resolved.
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SKD served as trucking broker for on-site work by arranging for owner-operators to
perform on-site construction work. Serving as a trucking broker for on-site work was not a
violation of the PLA or the ACG Agreement. On April 29, 2013 and April 30, 2013, SKD
arranged for Local Boyzz Trucking to haul millings. FWI had a number of trucks on the Project
and had the capacity to bring up its own trucks for off-site work; however, it would have not
been economical as FWI would have to bring trucks from St. Louis where the company is based.
On May 7, 2013, Walch e-mailed Gleason confirming FWI would only use SKD for offsite work. On May 9, 2013, Local 627 filed a grievance against FWI stating “since May 7, 2013,
FWI has been in violation of the agreement, in as much they have engaged a number of hauler
[sic] to haul materials to the I-74 and I-155 Project in Morton. The work in question is covered
under the Articles of Construction Agreement and requires that Qualified Drivers on Local
Union 627’s referral list be utilized to perform the work.” The grievance considered both on-site
and off-site work, but does not reference area standards. At the time of grievance Walch assumed
that the grievance was covering off-site work because FWI had another company doing on-site
work and the grievance specifically referenced haulers.
On May 13, 2013, Walch e-mailed Sharon and informed her that SKD could “not
perform the work per standard practices without a grievance being filed against FWI.” Walch
Depo. at 120:21-121:6. As of May 13, 2013, Local 627 had not informed FWI that it could use
SKD if they paid area standards. On May 14, 2013, Walsh ordered SKD to discontinue work on
the Project. Walch testified had Local 627 not filed the April and May grievances he would have
used SKD pursuant to the Utilization plan, which included both on-site and off-site work.
On May 15, 2013, Walch e-mailed the IDOT Small Business Enterprises office informing
them that FWI attempted to negotiate an agreement between SKD and Local 627 to no avail and
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as a result SKD would be unable to perform the work pursuant to the Utilization Plan, which
covered both on-site and off-site work.
On May 22, 2013, Gleason, Wheet and Dean McCoy (“McCoy”) from Local 627 met
with Walch about the grievance. During the meeting, Gleason stated the grievance was solely
based on FWI using material haulers who were not paying the area standard. During the May
22, 2013 meeting, the grievance was held in abeyance after FWI indicated it would no longer use
Covenant, Local Boyzz, and SKD on the Project. Local 627 also requested that FWI review
payroll for the contractors and provide the information to Local 627.
Following the May 22, 2013 meeting, Walch e-mailed other members of FWI informing
them of what took place during the meeting. The e-mail specifically stated “the grievance
purpose [is] to protect their standard” and “Off Site work does not have to be performed by a
signatory company, but they have to meet the economic package.” Pl. Exh. 22. The e-mail also
stated Gleason indicated that SK Davison, Local Boyzz and Covenant were using employees to
drive their trucks rather than having the owners themselves driving the trucks. Lastly, Walch
stated, “They want records of what was being paid to those drivers. If those records show they
are meeting the economic package things are looking better, but would not say ok. If no then
that is where the making whole comes in.” Id.
On May 24, 2013, Walch sent Sharon an e-mail in which he stated, “Teamsters contends
that the whole economic package is less than established in the contract with FWI…If all of the
trucks you had hauling meet the economic package then things are looking brighter.” Def. Ex.
25. There were some questions about whether FWI would use SKD if she signed the letter of
assent or the AGC Agreement and demonstrated she met the economic package for off-site
hauling and obtained the appropriate agreement as Walch testified if SKD did the above things
would look better, but not be okay. On May 29, 2013, Walch contacted SKD to obtain payroll
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records. However, Ed Davison stated SKD would not turn over the payroll records because
Walch was only requesting the information so he could turn it over to Local 627. It was Ed’s
understanding that if SKD turned over the payroll records, it was a possibility that SKD would
be able to start working again. The Davisons refused to turn over the payroll records based on the
advice of their attorney.
Walch also spoke to Sharon in May 2013 and explained to her that he needed SKD’s
payroll records to establish whether the business was paying the area standard. Sharon informed
Walch that she would not be providing the payroll record to FWI and understood that failure to
do so was one of the stated reasons why Walch could not put SKD back on the job. Walch was
unable to respond to the May 9th grievance without they payroll records. Walch never requested
Local Boyzz and Covenant’s payroll records.
On May 17, 2013, Sharon filed a charge with National Labor Relations Board (“NLRB”)
asserting Local 627 violated § 8(b)(4)(ii)(B). In response to the charge, Local 627 submitted
copies of the grievances, all written correspondence between FWI and Local 627, the PLA, and
the AGC Agreement. On May 28, 2013, the NLRB dismissed the charge.
On June 14, 2013, SKD’s counsel filed two additional charges, Case No. 25-CC-107038
and Case No. 25-CE-10742, with the NLRB. The charges alleged §8(e) and §8(b)(4) violations.
On July 9, 2013, SKD withdrew Case No. 25-CC-107038. On July 10, 2013, the NLRB
dismissed Case No. 25-CE-10742 finding that the evidence is insufficient to show that the Union
unlawfully sought to apply the subcontracting provision of the CBA to off-site work. SKD
appealed the dismissal of Case No. 25-CE-10742 to the NRLB’s Office of General Counsel. On
August 30, 2013, the General Counsel dismissed the appeal for substantially the same reasons
stated in the July 10, 2013 decision stating, “The evidence establishes that Local 627’s filing of a
grievance under the contract between the AGC and the Illinois Conference Teamsters against
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signatory Fred Weber Inc. was a colorable work preservation claim. The Union has a reasonable
claim that the off-site drivers’ work was unit work.” On September 10, 2013, Sharon’s counsel
filed a motion for reconsideration with the Office of General Counsel, which was subsequently
denied.
On September 18, 2013, Walch e-mailed Sharon in which he reiterated when SKD can
show they had obtained the appropriate agreement with Local 627 and Local 627 can confirm
that SKD met the requirements, he would meet with her to discuss SKD rejoining to the project.
On October 24, 2013, Plaintiff filed a one-count Complaint, amended on January 6, 2014,
alleging Local 627 violated 29 U.S.C. § 303(a) by engaging in unfair labor practices of filing
grievances against FWI with a secondary motive of forcing SKD to sign the ACG Agreement,
which resulted in FWI ending their business relationship with SKD. On October 3, 2014, Local
627 moved for summary judgment.
DISCUSSION
1. Legal Standard
A motion for summary judgment will be granted where there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). The moving party has the responsibility of informing the Court of portions of the record
or affidavits that demonstrate the absence of a triable issue. Celotex Corp. v. Catrett, 477 U.S.
317, 106 S. Ct. 2548, 2552 (1986). The moving party may meet its burden of showing an
absence of material facts by demonstrating "that there is an absence of evidence to support the
non-moving party's case." Id. at 2553. Any doubt as to the existence of a genuine issue for trial
is resolved against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106
S. Ct. 2505, 2513 (1986); Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir. 1988).
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If the moving party meets its burden, the non-moving party then has the burden of
presenting specific facts to show that there is a genuine issue of material fact. Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 1355-56 (1986).
Federal Rule of Civil Procedure 56(e) requires the non-moving party to go beyond the pleadings
and produce evidence of a genuine issue for trial. Celotex Corp., 106 S. Ct. at 2553. This Court
must then determine whether there is a need for trial -- whether, in other words, there are any
genuine factual issues that properly can be resolved only by a finder of fact because they may be
reasonably resolved in favor of either party. Anderson, 106 S. Ct. at 2511; Hedberg v. Indiana
Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995).
2. Analysis
A.
Unlawful Interpretation of Contract Pursuant to §8(e)
Local 627 first argues it is entitled to summary judgment because the grievances do not
advance an interpretation of the ACG that violates § 8(e). Section 303 of the Labor Management
Relations Act allows a plaintiff to obtain damages if a union engages in unfair labor practice as
defined by the National Labor Relations Act (“NLRA”). See 29 U.S.C. § 187. Section
8(b)(4)(ii)(A) makes it unlawful for a union “to threaten, coerce, or restrain, any person…where
in either case an objection thereof is (A) forcing or requiring any employer or self–employed
person to join any labor or employer organization or to enter in to any agreement which is
prohibited by subsection (e) or this section” or “(B) forcing or requiring any person to cease
using, selling, handling, transporting, or otherwise dealing in the products of any other producer,
processor, or manufacturer, or to cease business with any person…” 29 U.S.C. § 158(b)(4)(ii). In
essence, a union cannot enter a “hot cargo” agreement with an employer in which the employer
would be forced to cease doing business with a company who is not a member of the union. 29
U.S.C. § 158(b)(4)(ii)(A).
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It is well-settled filing a grievance that asserts an unlawful interpretation of a Section 8(e)
clause is considered coercive and therefore violates Section 8(b)(4). See Un. Bhd. of Carpenters
and Joiners of Am. Local No 745, 312 N.L.R.B. 903, 904 (N.L.R.B. 1993); Local 27, Sheet
Metal Workers Int’l Assoc. (AeroSonics, Inc.), 321 N.L.R.B. 540, (N.L.R.B. 1996); Int’l Union
of Elevator Constructors (Long Elevator Machine Co., Inc.), 289 N.L.R.B. 1095 (N.L.R.B.
1988).
There were two grievances filed by Local 627 against FWI – an April 10, 2013 grievance
and a May 9, 2013 grievance. The grievance at issue in this case is the one filed on May 9, 2013.
When the Interchange Project began SKD anticipated performing $3.1 million of work on
the project. Of that, approximately $1.9 million was designated to be on-site work. The parties
do not dispute that in order for SKD to perform on-site work they needed to be signatories to the
collective bargaining agreement and bound by the PLA. It is also undisputed that Local 627’s
April 10, 2013 grievance was within the confines of the law as it related to on-site work.
Specifically, Local 627 grieved FWI subcontracting work to SKD who had “neither agreed in
writing to become bound by the terms of the PLA nor, to the extent required by the Agreement,
signed the current applicable area collective bargaining agreement.” Pl. Exh. 7.
On April 25, 2013, Walch wrote Gleason a letter informing him that “FWI plans to use
S.K. Davison tandems to perform the following Off Site (Non-Covered) Hauling: Haul aggregate
and crushed stone, from a supplier, to the project.” Pl. Exh. 9. Local 627 lists this fact as
disputed stating that they were “uncertain whether such work was accurately described as off-site
work.” Def. Reply ¶ 124. Local 627 was also unclear whether FWI was “accurately describing
what work SKD would perform.” Id.
Despite being informed that SKD would only be performing off-site work, on May 9,
2013 Local 627 filed a second grievance. The grievance expressly states, “Since on or about May
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7, 2013 Fred Weber, Inc. has been in violation of the Agreement, in as much as they have
engaged in a number of Haulers to haul materials to the I-74 and I 1-55 [sic]…The work in
question is covered work under the Articles of Construction Agreement and requires Qualified
divers on Local Union 627’s referral list be utilized to perform this work.” Docket Entry No. 2616 at 2.
Local 627 argues the May 9th grievance was not filed in order to coerce subcontractors to
be signatories to a collective bargaining agreement, but rather the grievance only sought to
ensure SKD was paying area standards. Further Local 627 states there is no evidence the union
advanced an interpretation of the agreement which would have required all off-site material
haulers to be signatory to the AGC Agreement given that during a meeting on May 22, 2013,
Gleason specifically stated the Union was not claiming all haulers would need to be union
members to perform work. Local 627 concedes the hauling work in question was considered offsite, but argues SKD was not paying the area standards for the work. Plaintiff contends summary
judgment is inappropriate because the plain reading of the May 9, 2013 grievance constitutes an
unfair labor practice because the Union sought to restrict off-site trucking work to unionrepresented employees; thereby unlawfully attempting to coerce subcontractors to sign the AGC
Agreement.
The Court finds Plaintiff has presented a genuine issue of material fact. Local 627 is correct that
“Union standards’ clauses, which provide that an employer may subcontract only to other
employers whose wage and working standards are commensurate with those in the union’s
collective bargaining agreement, have been justified as serving to remove an incentive for the
employer to contract out work done by union employees.” George Ryan Co. v. NLRo. v. NLR,
609 F. 2d 1249, 1254 (7th Cir. 1979). Local 627 states it filed the May 9, 2013 grievance in order
to ensure that subcontractors such as SKD were paying the standard wages; however, the
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grievance itself does not support that assertion. Nowhere in the grievance does Local 627
reference the area standards, but rather focuses on the fact FWI was using non-signatories to the
collective bargaining agreement to perform off-site hauling work. Walch informed Local 627
SKD would only perform off-site work. Local 627 later clarified what it meant by the grievance;
however, that did not occur until thirteen days after the grievance was filed and after SKD had
been removed from the Project. Local 627 did not amend or withdraw the grievance, but rather
held it in abeyance, which meant Local 627 reserved the right to bring it back up in the future
and the grievance was not officially resolved.
It is also undisputed Walch testified had Local 627 not filed the April and May
grievances then FWI would have used SKD to complete the work on the Project under the
Utilization Plan, which included off-site work. The record promotes a reasonable inference that
Local 627 was attempting to assert an unlawful interpretation of the ACG Agreement to impose
a union-signatory requirement for off-site work. A jury must decide whether Local 627 filed the
grievance to coerce SKD into becoming a signatory to the Collective Bargaining Agreement or
whether Local 627 was attempting to lawfully enforce area standards. Accordingly, Local 627’s
Motion for Summary Judgment must be denied.
B.
Applicability of Bill Johnson Restaurant v. NRLB, 461 U.S. 731 (1983)
Local 627’s second argument is summary judgment is appropriate where Plaintiff failed
to show the May 9, 2013 grievance was objectively baseless and a subjective illegal intent, and
where Plaintiff has not alleged Local 627 is seeking to enforce an illegal contract provision. In
support of their argument, Local 627 cites Bill Johnson Restaurant v. NRLB, in which the
Supreme Court held that the specific contract provision sought to be enforced in the action must
be one that constitutes an unfair labor practice under Section 8(b)(4)(ii)(A) of Act. 461 U.S. 731,
745 n. 11 (1983). See also, Truck Drivers, Union Local 705 v. NLRB, (Emery Air Freight), 820
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F.2d. 448, 452 (D.C. Cir. 1987)(holding under Bill Johnson, that if the grievance had an unlawful
objective, there must be a finding that the underlying contract provision itself must be illegal).
Plaintiff argues Bill Johnson is inapplicable to this case because Local 627’s legal action of filing
a grievance is illegal under federal law. Bill Johnson, 461 U.S. 731, n. 5 (1983).
Local 627’s argument requires the Court to make a finding that the May 9, 2013
grievance sought to enforce area standards. Plaintiff argues the plain language of the grievance
makes no mention of the area standards, but rather states FWI must use union signatories to
perform offsite hauling work; thereby creating an unlawful “hot cargo” agreement. This is an
issue of fact that must be resolved by a jury.
This Court cannot make a finding as to Local 627 intent as summary judgment is
typically inappropriate for resolving questions of a party’s motive or intent; this is also question
of fact for the jury. See Ashman v. Barrows, 438 F. 3d 781, 784 (7th Cir. 2006); Santiago v.
Lane, 894 F.2d 218, 224 (7th Cir. 1990). Accordingly, Local 627’s Motion for Summary
Judgment must be denied.
C.
Damages
Local 627’s final argument is Plaintiff failed to demonstrate a causal connection between
the May 9, 2013 grievance and her loss of off-site hauling work. Plaintiff disputes this fact
arguing SKD sustained damages, which is evidenced by Walch’s testimony that had Local 627
not filed the April and May grievances then FWI have used SKD to complete the work on the
Project under the Utilization Plan, which included off-site work.
To the extent Local 627 is arguing SKD sustained damages because they failed to provide
their pay records, the Court finds that argument is more appropriate for a jury during trial as
evidence Plaintiff failed to mitigate her damages and cannot be resolved at the summary
judgment stage.
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CONCLUSION
For the reasons set forth above, Defendant International Brotherhood of Teamsters, Local
Union No. 627’s Motion for Summary Judgment [19] is DENIED. This matter remains set for
Final Pretrial on March 6, 2015 and Jury Trial on April 13, 2015.
Entered this 20th day of February, 2015.
/s/ James E. Shadid
James E. Shadid
Chief United States District Judge
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