Marzillo v. United Auto Workers Local 551 et al

Filing 102

MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 6/20/2016:Mailed notice(jms, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Michael Marzillo,
Plaintiff,

v.

United Auto Workers Local 551; Ford
Motor Company; Grant Morton; Alan
“Coby” Millender; Greg Poet; and
International
Union,
United
Automobile,
Aerospace
and
Agricultural Implement Workers of
America,
Defendants.

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MEMORANDUM OPINION AND ORDER
Plaintiff

is

an

employee

of

Ford

Motor

Company

and

an

elected Union Representative of United Auto Workers Local 551
(the “Local Union”) who claims that he was denied overtime to
which he was entitled under the collective bargaining agreement
and

a

union. 1

letter

of

understanding

between

his

employer

and

the

His complaint asserts a host of claims against the Local

Union; the International Union, United Automobile, Aerospace and

1

In this decision, the “Local Union” refers to the remaining
defendant, while generic references to “the union” refer nonspecifically to affiliated labor entities such as the UAW
National Ford Department and former defendant International
Union, United Automobile, Aerospace and Agricultural Implement
Workers of America.

Agricultural

Implement

Workers

of

America;

his

employer;

and

several individuals, but I dismissed all but one claim in my
Memorandum

Opinion

and

Order

of

October

6,

2015.

The

only

remaining claim asserts that the Local Union breached its duty
of

fair

representation

overtime

pay

with

by

the

failing
overtime

to

“equalize”
other

plaintiff’s

full-time

union

representatives received.
Before me is the remaining defendant’s motion for summary
judgment, which I grant for the reasons that follow.
I.
The following facts are undisputed except where noted.
focus

on

the

familiarity

facts

with

relevant

the

to

additional

defendant’s
background

motion,
set

I

assuming

forth

in

my

decision of October 6, 2015.
Plaintiff is a District Committeeman in the Local Union,
representing workers in “Skilled Trades Group 1” at the Torrence
Avenue Ford plant in Chicago. 2

Another District Committeeman,

Steve Denhartog, represents “Skilled Trades Group 2.”

In all,

the

at

Local

Union

has

fourteen

District

Committeemen

the

Torrence Avenue facility, each elected by the members of the
specific

District

or

Group

he

2

or

she

represents.

District

There may be a dispute as to whether plaintiff represents all
Skilled Trades employees who are working during his shift, or
only those who are in Skilled Trades Group 1. This dispute, if
it exists, is immaterial.
2

Committeemen assist their members in various matters, including
in the first step of the grievance procedure set forth in the
Collective Bargaining Agreement (the “CBA”) between Ford and the
union.
At the top of the Local Union’s representational structure
is the Bargaining Chairman, who is elected by and represents the
entire local membership.

The Bargaining Chairman is the Local

Union’s chief spokesperson in negotiating local agreements with
Ford, and he or she has ultimate authority for representing the
Local

Union’s

members

in

matters

involving

the

CBA.

The

Bargaining Chairman is also the chief spokesperson for the Local
Union in the final local-level step of the grievance procedure.
Three

Bargaining

Unit

Committeemen

assist

the

Bargaining

Chairman in negotiating local agreements with Ford.
Bargaining
elected

Chairman,

by,

and

the

Bargaining

represent,

the

Unit

entire

Like the

Committeemen
local

are

membership,

including in the second stage of the grievance procedure.
Art.

VI

Sec.

13(b)

of

the

CBA

sets

forth

formula” for full-time union representatives.
Bacon

Decl.

at

Exh.

A

(DN

73

at

8-9). 3

an

“overtime

See 2011 CBA,

Pursuant

to

these

provisions, Ford provides the Local Union a weekly allotment of
overtime

hours

based

on

the

total

3

number

of

overtime

hours

These page numbers refer to the numbers automatically generated
by the CM/ECF electronic docket.
3

worked by employees the previous week.

Def.’s L.R. 56.1 Stmt.

at ¶ 18; Bacon Decl. at ¶ 29 and Exh. A.

The parties refer to

the overtime hours provided for in this section as “bank” hours.
Pursuant to a letter of understanding dated January 11,
1995 (the “1995 Letter”), the Bargaining Chairman distributes
the

bank

hours

allotted

representatives.

by

Ford

among

the

various

full-time

The 1995 Letter provides:

[I]nsofar as practical such overtime opportunities
would be rotated by the chairperson [i.e., the
Bargaining
Chairman]
among
the
representatives,
depending upon their specific representation functions
and the representation requirements in the unit, with
the objective of equalization within reasonable limits
over a period of time (e.g., quarterly or semiannually).
Bacon Decl. at Exh. B (DN 73 at 11).
On

May

13,

2012,

Ford

implemented

an

Alternative

Work

Schedule (“AWS”) for Skilled Trades, under which employees work
twelve-hour shifts, alternating three days one week and four
days the next.

Def.’s L.R. 56.1 Stmt. ¶ 26; Bacon Decl. at ¶ 19

(DN 73 at 3). 4

Appendix W to the CBA provides that the AWS “base

schedule” is thirty-six hours a week for three day weeks and
forty-eight hours a week for four day weeks.
73 at 14).

Id. at Exh. C (DN

Appendix W further provides that after the “base

4

Plaintiff disputes this fact, stating that some of the workers
he represents “work a 40 hour week and some work four 10 hour
days.”
Marzillo Aff. at ¶ 30.
He does not explain, however,
how this dispute is material to the arguments he raises in
opposition to defendant’s motion.
4

schedule” thresholds are met, any hours worked over ten in a day
are considered overtime and paid at a premium rate. Id.
Because

Skilled

Trades

employees

work

twelve-hour

days,

each day that a District Committeeman for Skilled Trades works,
he

or

she

receives

two

hours

of

overtime

for

his

or

regularly scheduled shift. Def.’s L.R. 56.1 Stmt. ¶ 22.

her

These

overtime hours are deducted from the overtime “bank” and are
considered for the purpose of overtime equalization.

See id.;

Bacon Decl. at ¶¶ 40, 42 (DN 73 at 5); Dunn Decl. ¶¶ 11-12 (DN
75 at 2).
Defendants’ evidence reveals that when overtime hours are
thus calculated and accounted for, plaintiff worked the second
most overtime of all full-time District Committeemen each year
from 2011 to 2014.

The evidence further reveals that in each

quarter of 2014 and 2015, plaintiff worked either more overtime
hours

than,

or

an

equal

number

of

overtime

hours

to,

Steve

Denhartog, the District Committeeman for Skilled Trades Group 2.
Def.’s L.R. 56.1 Stmt. at ¶¶ 41-48; Dunn Decl. at ¶¶ 23-25 and
Exhs. 2-4; Bacon Decl. at ¶¶ 46-47 and Exh. D-G.
Plaintiff does not dispute that he regularly receives two
hours of overtime for each of his regularly scheduled twelvehour shifts.

He contends, however, that these overtime hours

should not be “charged” against the overtime bank or considered
for the purpose of equalizing his “bank” overtime with that of
5

other full-time union representatives.
¶ 15 (DN 89-1).

See Marzillo Aff. at

Plaintiff further argues that the 1995 Letter

requires the Bargaining Chairman to equalize his overtime not
only

with

elected

that

and

of

other

appointed

District
full-time

Committeemen,

but

with

representatives,

with

all
the

exception of the Bargaining Chairman himself.
II.
Actions

such

as

this,

in

which

an

employee

alleges

a

breach of the CBA in conjunction with a breach of the union’s
duty

of

fair

representation

(“DFR”),

are

known

as

“hybrid”

actions under § 301 of the Labor-Management Relations Act, 29
U.S.C. § 185.

DelCostello v. Int’l. Broth. of Teamsters, 462

U.S. 151, 165 (1983).
186-87 (1967).
claims
which

in

a

The Court explained in DelCostello that the two

hybrid

means

See also Vaca v. Sipes, 386 U.S. 171,

that

action
to

are

prevail

on

establish the elements of both.
the

Seventh

suits,

the

Circuit
breach

“interlocked:

has

of

neither

“inextricably
either,

a

plaintiff

462 U.S. at 164-65.

repeatedly

confirmed

contract

claim

claim

viable

is

interdependent,”

and
if

the
the

that
DFR

in

must

Indeed,
hybrid

claim

other

are

fails.”

Crider v. Spectrulite Consortium, Inc., 130 F.3d 1238, 1241 (7th
Cir. 1997) (citation and internal quotation marks omitted).

See

also Neal v. Newspaper Holdings, Inc., 349 F.3d 363, 368 (7th
Cir. 2003) (same).

As the court explained in White v. General
6

Motors, “[w]hen an employee’s underlying contractual claim lacks
merit as a matter of law, the employee cannot complain that the
union breached its duty of fair representation in failing to
process his or her grievance.” 1 F.3d 593, 595 (7th Cir. 1993)
(citing Souter v. Int’l. Union, United Auto., Aerospace and Agr.
Implement Workers of America, Local 72, 993 F.3d 595, 598 (7th
Cir. 1993).
Because in the typical hybrid case, the plaintiff seeks to
enforce the CBA against the employer, who is alleged to have
breached the CBA by, for example, terminating the plaintiff in
violation of its terms, the Seventh Circuit has, in some cases,
suggested that a viable contract claim against the employer is
required to maintain a viable DFR claim under § 301.

See, e.g.,

Neal, 349 F.3d at 368 (“In order for a plaintiff to prevail in
such an action, he must have a meritorious claim against both
the union and the employer.”); see also Crider, 130 F.3d at
1241.

As noted above, I previously dismissed plaintiff’s claim

against his employer, explaining that plaintiff’s theory that
Ford breached the CBA and 1995 Letter by failing to “enforce”
overtime equalization was deficient as a matter of law because
the face of those agreements establish that Ford had no duty
(nor indeed any authority) to do so.
10 (DN 63).
Neal,

Crider,

See 10/06/15 Mem. Op. at

Accordingly, at first blush, it may appear that
and

similar

authority
7

compel

the

dismissal

of

plaintiff’s DFR claim for lack of jurisdiction, since DFR claims
untethered to a claim for breach of a CBA are outside the scope
of § 301.
(7th

Copeland v. Penske Logistics LLC, 675 F.3d 1040, 1044

Cir.

2012)

(claim

against

union

that

did

not

allege

violation of CBA “is not a claim for breach of contract and
therefore can’t be pursued under § 301.

It belongs to the Labor

Board alone.”).
While it is true that plaintiff no longer has a viable
claim against his employer, I am satisfied that my jurisdiction
is secure.

In Lewis v. Local Union No. 100 of Laborers’ Intern.

Union of North America, AFL-CIO, 750 F.2d 1368 (7th Cir. 1984),
the court considered whether an employee’s claim against the
union for the union’s breach of the CBA was cognizable under
§ 301 and determined that the issue had “already been decided in
the

affirmative

by

the

Supreme

Court.”

Id.

at

1373

(citing

Amalgamated Assoc. of Street, Electric Railway & Motor Coach
Employees v. Lockridge, 403 U.S. 274 (1971); Humphrey v. Moore,
375 U.S. 335 (1964); and Smith v. Evening News, 371 U.S. 195, 83
S.Ct. 267, 9 L.Ed.2d 246 (1962)).
that

the

employer

fact
was

contractual
“intended

to

that

the

employee

“immaterial,”

provisions
confer

a

In Lewis, the court concluded

the

and

made
held

employee

benefit

8

upon”

no

claim

that

so

long

sought

to

enforce

the

against
as

employee—which

the
the
were
all

evidence suggests is the case here—he could maintain a hybrid
§ 301 action with only the union as the defendant.

Id. at 1374.

The viability of plaintiff’s claim in theory, however, is
not enough survive summary judgment.

At this stage, plaintiff

must come forward with evidence that, if believed by a jury,
establishes each of the elements necessary to prevail on that
theory.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986).

As explained below, plaintiff has not done so because

the evidence on which he relies does not reasonably suggest that
the manner in which the Bargaining Chairman distributed bank
overtime hours amounted to a breach of the Local Union’s duty of
fair representation.
In Vaca, the Court held that “[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.”
above,

defendant

has

proffered

386 U.S. at 190.

evidence:

1)

that

As noted
plaintiff’s

overtime was commensurate with the overtime of other District
Committeemen, and, in fact, was consistently among the highest
of all District Committeemen at the Torrence Avenue plant; and
2) that the Local Union’s practice of “charging” plaintiff’s
regularly scheduled overtime hours to the weekly overtime bank
allotted by Ford was consistent with how defendant allocated
overtime

to

other

full-time

District
9

Committeemen

at

the

Torrence Avenue plant, and was also consistent with the practice
of

other

local

unions

overtime accounting.

governed

by

the

CBA

and

with

Ford’s

See Bacon Decl. at ¶¶ 41-42 and Exhs. D-J

(DN 73); Dunn Decl. at ¶¶ 18, 19, 22 and Exhs. 2-6 (DN 75); Shea
Decl. at ¶¶ 9-12 (DN 95).
Plaintiff purports to dispute this evidence, stating that
he requested documentation to substantiate defendant’s overtime
calculations “but was advised that the information was contained
in the DROT reports of some 1,500 pages provided by the Union in
discovery.”

Pl.’s

L.R.

56.1

Resp.

at

¶¶ 42-48.

Plaintiff

further objects that the records are “incomplete and Plaintiff
cannot

confirm

responses

are

plaintiff

was

or

deny

inadequate
unable

to

such
to

calculation[s.]”
defeat

identify

the

summary

Id.

These

judgment.

relevant

If

documents

in

defendant’s production, he was entitled to serve interrogatories
and/or to depose a witness with knowledge of the documents to
help identify and understand them.
records

were

incomplete,

he

Moreover, if he believed the

should

have

moved

production of whatever he believed was missing. 5

5

to

compel

Finally, if

Actually, plaintiff did file a motion to compel before the
Magistrate Judge, in which he sought documents relating to
overtime tracking and interrogatory answers “designed to elicit
the methodology used to calculate the bank of overtime hours
granted to the union on a weekly basis and to whom the bank of
hours is allocated.” Mot. to Compel at 5 (DN 81).
The motion
was later stricken as moot, presumably at plaintiff’s request.
See DN 88.
10

plaintiff
oppose

was

truly

defendant’s

unable

to

obtain

motion,

he

was

evidence

entitled

necessary

to

pursue

the

to

alternatives available under Fed. R. Civ. P. 56(d).
cannot

do

is

proceed

to

a

trial

without

What he

affirmatively

identifying evidence raising a genuine factual dispute.

See

Liberty Lobby 477 U.S. at 250.
Plaintiff’s insistence that defendant improperly considered
his

regularly

scheduled

overtime

hours

as

part

of

his

bank

allotment for the purpose of equalization, and that defendant
improperly equalized plaintiff’s overtime hours only with the
hours of other District Committeemen rather than with those of
all

full-time

representatives

falls short on several fronts.

regardless

of

their

functions,

To begin, plaintiff points to no

evidence suggesting that defendant did not consider other fulltime representatives’ regularly scheduled overtime for purposes
of equalization, undermining his claim that he was targeted for
worse treatment.

Indeed, plaintiff’s “understanding that these

hours are not considered ‘overtime’ hours by Ford because they
are part of my Regular Day of Work” is not supported by any
competent evidence.

Plaintiff explains:

I know this because Ford Motor Company keeps records
of my overtime and they do not consider the premium
hours as overtime. Additionally, I have represented
members of the Skilled Trades Group in grievances I
have filed on their behalf alleging that they have not
been equalized with other Skilled Trades Group members
in the assignment of available overtime hours. ... In
11

such grievance proceedings
position of Ford management
only calculated when it is
(RDW) for the individual
worked in excess of the AWS
a regular day of work.

it has always been the
that “overtime” hours are
not a regular day of work
or when the overtime is
regular schedule if it is

Marzillo Aff. at ¶ 15 (DN 89-1).

Plaintiff does not identify

the records he relies on, nor does he explain how their content
supports his position.

Moreover, even assuming that plaintiff

has personal knowledge, based on his participation in employee
grievances, of how Ford calculates overtime for its workers,
those

calculations

have

no

apparent

relevance

to

how

Ford

allocates overtime to full-time union representatives pursuant
to Art. VI Sec. 13(b) of the CBA.
defendant

offers

the

declaration

of

On that specific issue,
Johanna

Shea,

Ford’s

HR

Associate, Union Relations, who states:
Ford deducts the Union bank hours for any hours worked
by a full-time Union Representative over ten (10)
hours in one day when the Union Representative works
on an Alternative Work Schedule that is greater than
10 hours or in excess of his/her base schedule. Bank
hours
are
deducted
anytime
a
full-time
Union
Representative works “overtime” (over 10 hours in one
day)
within
his
or
her
capacity
as
Union
Representative.
This practice is consistent with how
it is done at other UAW-represented Ford Assembly
Plants.
Shea Decl. at ¶ 9 (DN 95).
Finally,

even

assuming

that

plaintiff’s

view

that

the

Bargaining Chairman was required to equalize bank overtime hours
among

all

full-time

representatives,

12

regardless

of

their

function,

is

a

plausible

notwithstanding

the

Chairman

into

take

construction

letter’s

express

account

the

of

the

1995

qualification

representatives’

Letter,
that

the

“specific

representation functions and the representation requirements in
the unit,” plaintiff must do more than assert an alternative
interpretation

of

defendant’s

obligations.

Indeed,

he

must

establish that the Local Union’s distribution of bank overtime
is “arbitrary, discriminatory, or in bad faith.”
at 190.
record

Vaca, 386 U.S.

As just explained, the only competent evidence in the
suggests

the

contrary:

that

defendant

calculated

all

full-time representatives’ bank hours in a similar manner, and
that it distributed and accounted for them in a way that was
consistent with the terms of the 1995 Letter, with the practice
of

other

local

unions

overtime accounting.

governed

by

the

CBA,

and

with

Ford’s

Moreover, the evidence establishes that

plaintiff consistently received at least as many bank hours as
his peers with similar functions.

In short, there is simply no

evidence that could persuade a reasonable jury to find that the
Local

Union

breached

its

duty

of

fair

representation

to

plaintiff by failing to equalize his overtime.
Finally, I note that although plaintiff’s complaint also
alleges that defendant breached its duty of fair representation
by deliberately mishandling his grievances as part of a campaign
to punish and retaliate against him for his failure to support
13

Ford’s proposed CBA in October of 2011, he has not presented any
evidence

of

how

those

grievances

were

handled,

or

any

other

factual support for this theory beyond his own conjecture.
III.
For the foregoing reasons, defendant’s motion for summary
judgment is granted.
ENTER ORDER:

_____________________________
Elaine E. Bucklo
United States District Judge
Dated: June 20, 2016

14