Redden v. International Brotherhood of Electrical Workers Local Union No. 1521

Filing 7

MEMORANDUM AND ORDER- Plaintiff shall have until May 6, 2011, to amend his Complaint andclearly state a claim upon which relief may be granted against Defendant, in accordance with this Memorandum and Order. If Plaintiff fails to file an amended comp laint, this matter will be dismissed without further notice for failure to state a claim upon which relief may be granted. In the event that Plaintiff files an amended complaint, Plaintiff shallrestate the allegations of the current Complaint (filing no. 1 ) and any new allegations. Failure to consolidate all claims into one document may result in the abandonment of claims. Plaintiff shall keep the court informed of his current address at all times while this case is pending. Failure to do so may result in dismissal without further notice. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 5/6/2011 Check for amended complaint on May 6, 2011, and dismiss if none filed.) Ordered by Chief Judge Joseph F. Bataillon. (Copy mailed to pro se party) (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DARRELL REDDEN, Union
Member Local 1521 #7408327,
Plaintiff,
v.
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS LOCAL
UNION NO. 1521,
Defendant.

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8:11CV36

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on February 4, 2011. (Filing No. 1.)
Plaintiff has previously been given leave to proceed in forma pauperis. (Filing No.
5.) The court now conducts an initial review of Plaintiff’s claims to determine
whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I.

SUMMARY OF COMPLAINT

Plaintiff is a “union member” and filed his Complaint in this matter against his
union, the International Brotherhood of Electrical Workers, Local Union No. 1521
(“IBEW Local 1521”). (Filing No. 1 at CM/ECF p. 1.) Liberally construed, Plaintiff
sues the IBEW Local 1521 for failing to adequately represent him in his grievance
against his former employer.1 (Id. at CM/ECF p. 2.) Plaintiff alleges that the IBEW
Local 1521 was “perpetrating a fraud” by “acting like they were trying to help him”
while engaged in the grievance process with his former employer. (Id.) Plaintiff
attaches a letter from him to “Edwin Hill, President, IBEW . . . Washington, DC.”
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Plaintiff has filed a separate action against his former employer, the
Metropolitan Utilities District. (See Case No. 8:11CV34, Filing No. 1.)

(Id. at CM/ECF pp. 3-4.) Summarized and condensed, Plaintiff’s letter states that the
IBEW Local 1521 failed to timely advise him to file a grievance against his employer,
“did not insist” on getting his “termination papers” for him, and failed to timely give
him grievance forms when he requested them. (Id.) Plaintiff requests the return of
his “union dues,” and that the court make him “whole.” (Id. at CM/ECF p. 7.)
II.

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW

The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e)(2). The court
must dismiss a complaint or any portion thereof that states a frivolous or malicious
claim, that fails to state a claim upon which relief may be granted, or that seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B).
A pro se plaintiff must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1950 (2009) (“A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient
to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
However, a pro se plaintiff’s allegations must be construed liberally. Burke v. North
Dakota Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations
omitted).
III.

DISCUSSION OF CLAIMS

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Liberally construed, Plaintiff’s claims are brought pursuant to § 301 of the
Labor Management Relations Act, which “has been construed as providing an
implied statutory basis for suits in federal district court by employees against their
unions for unfair representation.” Raus v. Bhd. Ry. Carmen of U.S. and Canada, 663
F.2d 791, 794 (8th Cir. 1981); see also 29 U.S.C. § 185. As set forth by the Eighth
Circuit, to prevail under § 301, “the employee must first prove the union breached its
duty of fair representation. . . . A union will be found to have breached its duty of fair
representation only when its conduct toward a member of the collective bargaining
unit is arbitrary, discriminatory, or in bad faith.” Cross v. United Auto Workers,
Local 1762, 450 F.3d 844, 847 (8th Cir. 2006) (quotation omitted). Further, a
“union’s conduct is arbitrary if, considering all the circumstances at the time of the
union’s action or inaction, the union’s behavior is so far outside a wide range of
reasonableness as to be irrational.” Id. (quotations omitted). Importantly, “‘[m]ere
negligence, poor judgment, or ineptitude on the part of the union is insufficient to
establish a breach of the duty of fair representation.’” Id. (quoting Stevens v.
Teamsters Local 600, 794 F.2d 376, 378 (8th Cir.1986)). However, courts reviewing
a union’s conduct should afford “considerable deference” to the union in fulfilling its
duties to its members, “because the relationship between courts and unions is similar
to that between courts and legislatures.” Thompson v. United Transp. Union, 588
F.3d 568, 572 (8th Cir. 2009).
Plaintiff’s allegations are sparse. He alleges that he is a member of the IBEW
Local 1521 and that the IBEW Local 1521 engaged in “fraud” by “acting like they
were trying to help him.” (Filing No. 1 at CM/ECF p. 2.) Plaintiff further alleges
that, while the IBEW Local 1521 engaged in the grievance process with his former
employer on his behalf, the IBEW Local 1521 failed to timely advise him to file a
grievance against his employer, “did not insist” on getting his “termination papers”
for him, and failed to timely give him grievance forms when he requested them. (Id.)
Plaintiff does not allege that the IBEW Local 1521 acted arbitrarily or in bad faith,
and does not allege that the union discriminated against him. At best, Plaintiff has
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alleged that the IBEW Local 1521 was negligent or inept in pursuing his grievance.
In light of the deference due the IBEW Local 1521, the allegations currently before
the court are insufficient to “nudge” Plaintiff’s claims cross the line from conceivable
to plausible. However, on its own motion, the court will permit Plaintiff 30 days in
which to amend his Complaint to sufficiently allege a claim against the IBEW Local
1521. Any amended complaint shall restate the allegations of Plaintiff’s prior
Complaint (filing no. 1) and any new allegations. Failure to consolidate all claims
into one document will result in the abandonment of claims. If Plaintiff fails to file
an amended complaint in accordance with this Memorandum and Order, Plaintiff’s
Complaint will be dismissed without prejudice for failure to state a claim upon which
relief may be granted.
IT IS THEREFORE ORDERED that:
1.
Plaintiff shall have until May 6, 2011, to amend his Complaint and
clearly state a claim upon which relief may be granted against Defendant, in
accordance with this Memorandum and Order. If Plaintiff fails to file an amended
complaint, this matter will be dismissed without further notice for failure to state a
claim upon which relief may be granted.
2.
In the event that Plaintiff files an amended complaint, Plaintiff shall
restate the allegations of the current Complaint (filing no. 1) and any new allegations.
Failure to consolidate all claims into one document may result in the abandonment
of claims.
3.
The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: Check for amended complaint on May
6, 2011, and dismiss if none filed.
4.

Plaintiff shall keep the court informed of his current address at all times
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while this case is pending. Failure to do so may result in dismissal without further
notice.
DATED this 15th day of April, 2011.
BY THE COURT:
s/ Joseph F. Bataillon
Chief United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
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or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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