GEHRINGER et al v. ATLANTIC DETROIT DIESEL ALLISON LLC et al
Filing
110
OPINION. Signed by Judge Jose L. Linares on 10/3/13. (jd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOHN GEHRINGER, et a!.
Civil Action No. 08-39 17 (JLL) (JAD)
Plaintiffs,
v.
OPINION
ATLANTIC DETROIT DIESEL ALLISON
LLC,etal.
Defendants.
LINARES, District Judge.
This matter comes before the Court by way of Defendants Atlantic Detroit Diesel Allison
LLC (“ADDA”) and Local 1 5C International Union of Operating Engineers ( “Local 1 5C”)
(collectively “Defendants”)’s motions for summary judgment pursuant to Fed. R. Civ. P. 56.
The Court decides this matter without oral argument pursuant to Fed. R. Civ. P. 78. Upon
consideration of the Parties’ submissions, the Court grants summary judgment in favor of
Defendants.
I.
BACKGROUND’
Plaintiffs bring this hybrid action against their former employer, ADDA, and their union,
Local 15C, pursuant to Section 301 of the Labor Management Relations Act (the “LMRA”), 29
U.S.C.
§ 185. Plaintiffs allege that ADDA breached the terms of its collective bargaining
Throughout Plaintiffs’ Response to Defendants’ Joint Local Rule 56.1 Statement of Undisputed Material Facts,
Plaintiffs admit that many of Defendants’ separately numbered material facts “accurately reflect” the deposition
testimony cited therein. See, e.g., PIs.’ Resp. 56.1 Stmt. ¶ 97, ECF No. 100 (“Admitted that this accurately reflects
the deposition testimony cited.”). This Court considers Defendants’ recitation of the facts as undisputed by these
admissions because they provide no citations to the record suggesting otherwise. L. Civ. R. 56.1.
1
agreement (the “C BA”) with Local 1 5C when it terminated them and that Local 1 5C
subsequently failed to fairly represent them. See Compl.
¶J 41-54, 63-68, ECF No. 23.
ADDA sells and services diesel engines for vehicles including buses. Def. Local I 5C’s
Br. 1, ECF No. 81; See Pls’ Opp. Br. 2, ECF No. 99. In 2007, the New York City Department of
Education (the “DOE”) awarded ADDA a contract to repair and service a large number of its
buses (the “DOE Project”) by September 1 of that year. Def. Local 15C’s 56.1 Stmt.
No. 82; Pis.’ Resp. 56.1 Stmt.
¶ 23, ECF No.
¶ 23, ECF
100. Plaintiffs, ten diesel mechanics and members
2
of Local 15C, worked on the DOE Project. Def. Local 15C’s 56.1 Stmt.
¶ 24; Pis.’ Resp.
56.1
Stmt.J24.
While working on the DOE Project, each Plaintiff would typically report to one of two
ADDA facilities in Lodi, New Jersey at the start of his shift—the Bus Service Center on 33
Gregg Street (the “BSC”) or the facility on 180 Route 17 South (the “Route 17 Facility”). Def.
Local 15C’s 56.1 Stmt.
¶J 2, 33; Pis.’
Resp. 56.1 Stmt.
¶J 2,33.
Each Plaintiff would then pick
up any necessary equipment and travel in an ADDA van to a DOE facility in either Staten Island
or the Bronx. See Def. Local 15C’s 56.1 Stmt.
¶J 31, 33; Pls.’
Resp. 56.1 Stmt.
¶J 31, 33.
At
the end of his shift, each Plaintiff would typically return to his assigned ADDA facility in the
same van. Def. Local 15C’s 56.1 Stmt.
¶ 38; Pis.’
Resp. 56.1 Stmt.
¶ 38.
Each van was
equipped with both a GPS system and E-ZPass visible to Plaintiffs. Def. Local 15C’s 56.1 Stmt.
¶ 37;
PIs.’ Resp. 56.1 Stmt.
¶ 37.
In the summer of 2007, the DOE expanded its contract with ADDA. Def. Local 1 SC’s
56.1 Stmt.
¶ 44; Pis.’
Resp. 56.1 Stmt.
¶ 44.
The expanded contract required ADDA to service
over one hundred additional buses, but did not provide ADDA with additional time to complete
2
John Gebringer, Juan C. Ayala, Patrick Brown, Jean Daniel Chalmers, Scott M. Curry, Dennis Galloway, Timothy
J. Kogit, Cliff Novins, Gary P. Schaffner, Jr., and Frantz St. Vii.
2
the DOE Project. Def. Local 15C’s 56.1 Stmt.
J 44; Pis.’
Resp. 56.1 Stmt. ¶ 44. Thus, ADDA
had to complete the DOE Project by the same deadline, September 1, 2007. Def. Local 15C’s
56.1 Stmt.
¶ 44; PIs.’
Resp. 56.1 Stmt.
¶ 44.
Anthony Cirillo, the ADDA Branch Manager of the
BSC, was responsible for ensuring such completion. Def. Local 15C’s 56.1 Stmt.
Resp. 56.1 Stmt.
¶ 27; Pls.’
¶ 27.
Faced with the challenge of completing the additional buses by the same deadline, Cirillo
met with the DOE Project’s lead mechanics—John Gehringer, Frantz St. Vil., and James Van
Splinter—to discuss how they should proceed (the “Meeting”). Def. Local 15C’s 56.1 Stmt.
47-48, 57; PIs.’ Resp. 56.1 Stmt.
15C’s Resp. 56.1 Stmt.
¶J 47-48, 57; Pis.’
¶ 1, ECF No.
56.1 Stmt.
¶
1, ECF No. 99-i; Def. Local
104-1. The Parties agree that Cirillo “made it perfectly
clear” that “[i]ncomplete was not an option.” Def. Local 15C’s 56.1 Stmt.
Stmt.
¶ 49.
¶J
¶ 49;
Pis.’ Resp. 56.1
They also agree that Cirillo used words to the effect of: “you guys got carte blanche,
do whatever it takes, as much overtime as the guys need, whatever you have to do, get the job
done, you have ‘carte blanche.” Def. Local 15C’s 56.1 Stmt.
¶ 49; PIs.’ Resp. 56.1
Stmt.
¶ 49.
However, the Parties dispute both what Cirillo meant by “carte blanche” and what else he said at
the Meeting. Plaintiffs contend that Cirillo explicitly authorized an “incentive” payment scheme
whereby their payment would reflect having worked a set number of hours on each bus serviced
regardless of the hours spent doing so. PIs.’ 56.1 Stmt. ¶j 4-6. Conversely, Defendants maintain
that Cirillo never authorized such a scheme, and intended “carte blanche” to pertain to manpower
and overtime. Def. Local 15C’s 56.1 Stmt.
¶ 50-51.
The Parties agree on the events that followed the Meeting. Over the course of the next
several days, and during separate discussions, the lead mechanics told other mechanics that
Cirillo gave them “carte blanche” to complete the DOE Project. Def. Local 1 5C’s 56.1 Stmt.
3
¶
56; Pis.’ Resp. 56.1 Stmt.
¶ 56.
Many of the mechanics then began to regularly put hours on
their time cards based on the number of buses that they completed instead of the hours that they
actually worked. Def. Local 15C’s 56.1 Stmt.
¶ 58; Pls.’ Resp.
56.1 Stmt.
¶ 58.
Some
mechanics also allowed Van Splinter or another mechanic to complete their timecards for them.
Def. Local 15C’s 56.1 Stmt.
¶ 60; Pls.’
Resp. 56.1 Stmt.
¶ 60.
Not all of the mechanics assigned to the DOE project subscribed to Plaintiffs’ billing
practices. Def. Local 15C’s 56.1 Stmt.
¶ 123; Pls.’ Resp.
56.1 Stmt.
¶ 123.
Mechanics Olger
Mora and Tom Joyce opted not to do so after talking with John Ference, a shop steward at Local
l5C, at the start of one of their shifts. Def. Local 15C’s 56.1 Stmt.
¶
¶ 125; Pls.’
Resp. 56.1 Stmt.
125. Ference told Mora and Joyce that “[w]e don’t do deals and we get paid by the hour. We
go by the contract.” Def. Local 15C’s 56.1 Stmt.
¶
126; Pis.’ Resp. 56.1 Stmt.
¶
126.
Cirillo maintains that he first became aware of Plaintiffs’ billing practices on August 31,
2007. See Def. Local l5C’s 56.1 Stmt.
¶J 62-71.
On that date, Cirillo became suspicious when
he saw two ADDA vans parked outside the BSC four hours before the employees inside them
were scheduled to return. See id. at ¶ 62. ADDA President John Farmer directed an
investigation of the matter shortly thereafter. Id. at ¶ 76; Pls.’ Resp. 56.1 Stmt. at 76. Cirillo
¶
gathered and reviewed the DOE Project employees’ timecards, GPS records, and E-ZPass
records. Def. Local 15C’s 56.1 Stmt.
¶ 79; Pls.’ Resp.
56.1 Stmt.
¶ 79.
The timecard records,
when compared with the GPS and E-ZPass records, revealed that Plaintiffs recorded time that
they did not actually work. Def. Local l5C’s 56.1 Stmt.
¶ 86; Pis.’
Resp. 56.1 Stmt.
¶ 86.
On September 7, 2007, Farmer concluded that Plaintiffs had falsified their timecards and
decided to dismiss them. Def. Local 15C’s 56.1 Stmt.
¶ 91; Pis.’ Resp.
56.1 Stmt.
¶ 91.
Before
dismissing Plaintiffs, Farmer informed James Callahan, Local I SC’s President and Business
4
Manager, that terminations were imminent. Def. Local 15C’s
56.1 Stmt.
Stmt.
¶ 94; PIs.’
56.1 Stmt.
¶ 15; Def. Local
15C’s Resp. 56.1 Stmt.
¶ 15.
¶ 94; PIs.’ Resp.
56.1
Likewise, Timothy
Meade, ADDA’s Senior Vice President for Sales and Services,
contacted Robert Bums, Local
15C’s Business Agent, a week before the terminations. Def. Local
15C’s 56.1 Stmt.
Resp. 56.1 Stmt.
¶ 98; Pls.’
56.1 Stmt.
¶ 16; Def. Local
15C’s Resp. 56.1 Stmt.
¶ 16.
¶ 98; Pls.’
Burns
asked Meade if there was anything that could be done and
Meade responded “absolutely not.”
Def. Local 15C’s 56.1 Stmt.
¶ 98; Pis.’ Resp.
56.1 Stmt.
¶ 98.
Bums also asked Shop Steward
Ference to appear at each termination meeting on Local 1
5C’ s behalf and to instruct Plaintiffs to
remain silent so as not to incriminate themselves. Def. Local
15C’s 56.1 Stmt.
56.i Stmt.
¶ 97; Pis.’ Resp.
¶ 97.
On September 10 and 11, 2007, ADDA met with Plaintiffs and
four other Local 1 SC
members who are not participants in this action to inform
them of their terminations. Def. Local
15C’s 56.1 Stmt. ¶ 101; Pis.’ Resp. 56.1 Stmt.
¶ 101.
A shop steward or Local 15C
representative was present at each meeting. Def. Local 15C’s
56.1 Stmt.
Stmt.
¶ 102.
¶ 102; Pls.’ Resp.
56.1
Megan Hollberg, ADDA’s Vice President of Human Resource
s, attended each
meeting and took notes. Def. Local 15C’s 56.1 Stmt.
¶J 103-04; Pls.’
Resp. 56.1 Stmt. ¶{ 103-
04. Local 1 5C later relied on Hollberg’s notes when cond
ucting its investigation. Def. Local
15C’s 56.1 Stmt.
¶
130; PIs.’ Resp. 56.1 Stmt.
¶ 130.
The day after Plaintiffs’ terminations, Callahan called Farme
r. Def. Local 1 5C’s 56.1
Stmt.
¶
113; Pis.’ Resp. 56.1 Stmt.
¶ 113.
During their conversation, Callahan requested ADDA
documents from Farmer and asked him whether anything
could be done to return Plaintiffs to
work. Def. Local 15C’s 56.1 Stmt.
¶J
113-14; PIs.’ Resp. 56.1 Stmt.
5
¶J I 13-14.
Shortly
thereafter, Callahan and Burns met with Farmer to again discuss whethe
r anything could be done
to return Plaintiffs to work. Def. Local 15C’s 56.1 Stmt.
¶ 115; Pis.’ Resp.
56.1 Stmt.
115.
¶
Burns informed Matthew McGuire, Local 1 5C’s Labor Counsel,
of the situation
approximately one week after the terminations. Def. Local 15C’s
56.1 Stmt. at ¶ 116; PIs.’ Resp.
56.1 Stmt. at ¶ 116. McGuire advised Bums to request supporting
documentation and a written
explanation as to why ADDA terminated Plaintiffs from ADDA.
Def. Local 1 5C’s 56.1 Stmt.
117, 119; Pis.’ Resp. 56.1 Stmt.
120; Pls.’ Resp. 56.1 Stmt.
¶ 117,
¶{ 118,
119. Burns did so. Def. Local 15C’s 56.1 Stmt.
¶J
¶J 118,
120. In response, Farmer sent Local I SC a letter stating
ADDA’s rationale for dismissing Plaintiffs. Def. Local 15C’s
56.1 Stmt. ¶ 120; Pis.’ Resp. 56.1
Stmt.
¶
120. The letter explained that ADDA terminated Plaintiffs for
engaging in “serious
misconduct” including: (I) “Time card/Time record violations;”
(2) “Falsification of company
records;” (3) “Willful violation of established policy or rule;”
(4) “Breach of trust or dishonesty;”
and (5) “Theft of time.” Def. Local 15C’s 56.1 Stmt.
¶
120; PIs.’ Resp. 56.1 Stmt.
¶ 120.
After receiving Farmer’s letter, Callahan instructed McGuire
to conduct a formal
investigation of the terminations. Def. Local 15C’s 56.1 Stmt.
¶ 121; Pis.’ Resp.
56.1 Stmt.
¶
121. McGuire proceeded to speak with Shop Steward Ferenc
e on October26 and December 5,
2007. Def. Local 15C’s 56.1 Stmt.
¶ 124; PIs.’
Resp. 56.1 Stmt.
¶ 124.
Ference told McGuire
about Mora and Joyce’s decisions not to participate in Plaintiffs’
billing practices. Def. Local
15C’s 56.1 Stmt.
¶J
125-26; Pis.’ Resp. 56.1 Stmt. ¶J 125-26. Ference also told
McGuire that
Plaintiffs Kogit and Curry angrily denied the existence of
any secretive deal when he confronted
them. Def Local 15C’s 56.1 Stmt.
¶
127; PIs.’ Resp. 56.1 Stmt.
Joyce on October 30, 2007. Def. Local l5C’s 56.1 Stmt.
¶
¶ 127.
McGuire interviewed
128; Pis.’ Resp. 56.1 Stmt.
¶ 128.
Joyce stated that on August 24, 2007, Plaintiffs Kogit and Curry
told him that he would be paid
6
for a certain number of hours so long as he completed three buse
s per night. Def. Local 15C’s
56.1 Stmt.
¶
129; Pis.’ Resp. 56.1 Stmt.
¶ 129.
On November 16, 2007, Hollberg provided Local 1 5C with
evidence that ADDA
believed confirmed Plaintiffs’ alleged wrongdoing. Def. Loca
l 15C’s 56.1 Stmt.
Resp. 56.1 Stmt.
¶
¶ 130; Pis.’
130. Specifically, Hollberg provided: (1) her notes from
the termination
meetings; (2) spreadsheets comparing Plaintiffs’ timecard
s, GPS records, and E-ZPass records;
and (3) an October 26, 2007 memorandum from Cirillo conc
erning the events of August 31,
2007, and the subsequent investigation. Def. Local 15C’s
56.1 Stmt.
Stmt.
¶
¶ 130; Pis.’
130. McGuire reviewed these documents. Def. Local 15C
’s 56.1 Stmt.
Resp. 56.1
¶J 147-48,
152;
Pis.’ Resp. 56.1 Stmt. at ¶J 147-48, 152. Notably, the sprea
dsheets showed discrepancies in four
of Plaintiffs’ timecards before Cirillo allegedly authorize
d Plaintiffs’ billing practices at the
Meeting. Def. Local 15C’s 56.1 Stmt. 151; Pis.’ Resp
. 56.1 Stmt.
¶
¶ 151.
In other words, four
Plaintiffs billed time for hours that they did not actually
work before the Meeting. See Def.
Local 15C’s 56.1 Stmt.
¶
151; Pis.’ Resp. 56.1 Stmt.
¶
151.
McGuire also met with Plaintiffs Gehringer and Kogit and
their attorney, Leonard
Kaufman, on December 4, 2007. Def. Local 15C’s 56.1
Stmt.
¶J
¶J 138-39; Pis.’
Resp. 56.1 Stmt.
138-39. The purpose of the meeting was for McGuire
to speak to Plaintiffs directly about
their claim that they had meritorious grievances. Def. Loca
l 15C’s 56.1 Stmt.
56.1 Stmt.
¶
¶
137; PIs.’ Resp.
137. At the meeting, Gehringer told McGuire that Ciril
lo gave Plaintiffs “carte
blanche,” and instructed them to “bill eight hours per
bus.” Def. Local 15C’s 56.1 Stmt.
Pis.’ Resp. 56.1 Stmt.
¶ 140.
¶ 140;
When McGuire asked Gehringer why he did not ask Loca
l I 5C
about the deal with ADDA, he responded that “this stuff
goes on all the time.” Def. Local 15C’s
56.1 Stmt. ¶ 142; Pls.’ Resp. 56.1 Stmt. 142. In addi
tion, Kogit denied speaking with Mora,
¶
7
Joyce, and/or Ference at the meeting. Def. Local 15C’s 56.1 Stmt.
¶ 144; Pis.’ Resp. 56.1 Stmt.
¶ 144. Gehringer and Kogit have since asserted that they did not think that this meeting was fair
because MeGuire’ s questions and demeanor suggested that it was aimed
at preparing a defense
for a possible lawsuit rather than assisting them. See Gehringer’s Aff.
¶J 5-10, ECF No.
Kogit’s Aff. ¶j 3-8, ECF No. 99-15.
On December 23, 2007, McGuire recommended that Local I 5C not grieve
the
terminations. Def. Local 15C’s 56.1 Stmt.
¶ 165; Pis.’ Resp. 56.1 Stmt. ¶ 165. Four
considerations guided McGuire’s recommendation. First, McGu
ire believed that an arbitrator
would have been unlikely to find that Plaintiffs’ purported unilateral
oral deal with Cirello
justified their conduct. Def. Local l5C’s 56.1 Stmt. 158; Pls.’ Resp.
56.1 Stmt.
¶
¶ 158. Second,
McGuire noted that in his experience arbitrators did not look lightly
upon timecard falsification.
Def. Local 15C’s 56.1 Stmt.
¶ 156; PIs.’ Resp. 56.1 Stmt. ¶ 156. Third, McGuire believed that
there were numerous credibility issues that stood in the way of
successfully arbitrating Plaintiffs’
claims. Def. Local l5C’s 56.1 Stmt.
¶J 160-63; Pls.’ Resp. 56.1 Stmt. ¶ 160-63. And, fourth,
McGuire did not know what most Plaintiffs would say at arbitra
tion because when he tried to
speak with them, Plaintiffs’ counsel only produced Gehringer
and Kogit. Def. Local 1 5C’s 56.1
Stmt.
¶ 164. As to this fourth consideration, Plaintiffs contend that only Gehringer and Kogit
spoke with McGuire because the investigation was a “sham.” Pis.’
Resp. 56.1 Stmt.
¶ 164. By
way of letter dated January 8, 2008, McGuire advised Kaufm
ann that Local 1 5C had decided not
to initiate a grievance proceeding on behalf of Plaintiffs. Def.
Local 15C’s 56.1 Stmt.
Pls.’ Resp. 56.1 Stmt.
¶ 167;
¶ 167.
Plaintiffs filed this action against Defendants in the Superi
or Court of New Jersey,
Bergen County, on July 3, 2008. State Ct. Compi., ECF No.
1-1. Plaintiffs’ Complaint asserts
8
the following claims: (1) ADDA breached the CBA; (2) Loca
l 15C breached the CBA and its
duty of fair representation; and (3) tortious interference with
respect to economic advantage
against ADDA. Compi.
3
¶J 4 1-68. Defendants subsequently removed this action to this Court
on August 5, 2008. Notice of Removal, ECF No. 1. The
Court has jurisdiction over this action
pursuant to 28 U.S.C.
§ 185. Defendants now motion for summaryjudgment. ADDA’s Mot.
for Summ. J., ECF No. 75, Local 15C’s Mot. for Summ.
J., ECF No. 80.
II.
LEGAL STANDARD
A court shall grant summary judgment under Rule 56 of
the Federal Rules of civil
Procedure if the materials in the record show that there
is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.
” Fed. R. Civ. p. 56(a). On a
summary judgment motion, the moving party must first show
that there is no genuine dispute of
material fact. Celotex Corp. V. Catrett, 477 U.S. 317, 323,
106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986). The burden then shifts to the nonmoving party
to present evidence that a genuine dispute
of material fact compels a trial. RidgewoodBd. ofEduc.
v. N.E. ex ret. ME., 172 F.3d 238, 252
(3d Cir. 1999) (citations omitted). To do so, the nonm
oving party must offer specific facts that
establish such an issue, and may not simply rely on unsu
pported assertions, bare allegations, or
speculation. Id. (citation omitted). The Court must cons
ider all facts and the reasonable
inferences therefrom in the light most favorable to the
nonmoving party. Pennsylvania Coal
Ass ‘n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995).
III.
DISCUSSION
Plaintiffs bring this hybrid suit against ADDA and Loca
l 15C pursuant to Section 301 of
the LMRA. Plaintiffs allege that: (1) ADDA brea
ched the terms of its CBA with Local 15C
The Parties stipulated and agreed to dismiss all claims
for tortious interference by each Plaintiff. Stipulation
of
Dismissal for Tortious Interference Claims Only,
ECF No. 73.
9
when it terminated them; and (2) Local 1 5C subsequently breached its
duty of fair
representation. See Compl.
¶ 41-54, 63-68.
‘necessary condition precedent’ to the
.
.
.
“A breach of the duty of fair representation is a
claim [against the employer) in hybrid suits where the
employee sues both the employer and union.
.
.
.“
Aibright v. Virtue, 273 F.3d 564, 576 (3d Cir.
2001). Thus, this Court first addresses Plaintiffs’ breach of the
duty of fair representation claim.
A.
Whether Local 1 5C Breached its Duty of Fair Representation to Plainti
ffs
Local 1 5C contends that summary judgment in its favor is proper
because there is no
genuine dispute that it complied with its duty to fairly represent
Plaintiffs. See Def. Local 1 5C’s
Br. 25. “Because a union is authorized to act as the exclusive bargain
ing agent for its members,
it has a duty to provide fair representation in the negotiation, admin
istration, and enforcement of
the [CBAI.” Findley v. Jones Motor Freight, 639 F.2d 953, 957
(3d Cir. 1981). A union does
not breach this duty simply by refusing to arbitrate a claim, even if
that claim was meritorious.
Id. at 958 (citing Vaca v. Sipes, 386 U.S. 171, 192-93, 87 5. Ct.
903, 17 L. Ed. 2d 842 (1967)).
Likewise, “proof that the union may have acted negligently or
exercised poor judgment is not
enough to support a claim of unfair representation.” Bazarte v.
United Transp. Union, 429 F.2d
868, 872 (3d Cir. 1970). Rather, “[p]roof of arbitrary or bad
faith union conduct in deciding not
to proceed with the grievance is necessary to establish” such
a breach. Id. (citing Vaca, 386 U.S.
at 194-95).
Here, Local 15C contends that there is no genuine dispute that
its conduct was
neither in bad faith nor arbitrary and that, as a result, summa
ry judgment is proper. Def. Local
15C’s Br. 25-36.
1.
Whether Local I 5C Acted in Bad Faith in Refusing to Arbitra
te Plaintiffs’
Claims
Local 1 5C contends that it did not act in bad faith in refusin
g to arbitrate Plaintiffs’
claims. Id. at 26-28. “What constitutes ‘bad faith’ in a given
case, of course, depends upon the
10
circumstances.” Findley, 639 F.2d at 959. That being said, “[m]ore than mere unsupp
orted
allegations are required to justify a finding of bad faith on a union’s part.” Belles
field v. RCA
Commc ‘ns, Inc., 675 F. Supp. 952, 956 (D.N.J. 1987). Some courts have even
insisted that “bad
faith requires a plaintiff to make two showings: (1) the union and its representative
s harbored
animosity towards the employee; and (2) that animosity manifested itself as
a material factor in
the union’s handling of the employee’s grievance.” Morgan v. Commc ‘ns Worke
rs ofAm., AFL
ClO, Dist. 1, No. 08-249, 2009 WL 749546, *8 (D.N.J. Mar. 17, 2009) (citing Maski
n v. United
Steel Workers ofAm., 136 F. Supp. 2d 375, 382 (W. D. Pa. 2000)). Here, Plainti
ffs assert that
three shortcomings demonstrate Local 15C’s bad faith in handling their arbitra
tion request: (I)
Local 15C’s alleged failure to act on Plaintiffs’ behalf before ADDA termin
ated them; (2) Local
15 C’s alleged failure to act on Plaintiffs’ behalf before they engaged independent
counsel; and
(3) the alleged overall sham nature of Local l5C’s investigation. See Pis.’
Opp. Br.
14-15. The
Court addresses whether these three alleged shortcomings present a genuin
e dispute of material
fact that compels a trial below. In doing so, this Court is mindful that a union
has an “obligation
not to assert or press grievances which it believes in good faith do not warran
t such action.”
Bazarte, 429 F.2d at 872 (emphasis added).
First, Plaintiffs generally argue that Local 15C’s failure to act on their behalf
before
ADDA terminated them demonstrates bad faith. Specifically, Plaintiffs
point out that despite
Callahan and Bums’ knowledge that Plaintiffs’ terminations were immin
ent, they failed to act on
Plaintiffs’ behalf beforehand. Pis.’ Opp. Br. 14. Plaintiffs also point
to Local 15C’s failure to
obtain their side of the story before ADDA terminated them. Id. Plainti
ffs’ argument, however,
ignores actions Bums took on Plaintiffs’ behalf prior to their terminations.
11
Bums asked ADDA Vice President Meade if there was anything that could be done prior
to the terminations, and Meade responded “absolutely not.” Def. Local 15C’s 56.1 Stmt.
Pls.’ Resp. 56.1 Stmt.
¶ 98.
¶ 98;
Bums also asked Shop Steward Ference to appear at each
termination meeting on Local 15C’s behalf and to instruct Plaintiffs to remain silent so as not to
incriminate themselves. Def. Local 15C’s 56.1 Stmt. 97; PIs.’ Resp. 56.1 Stmt.
¶
¶ 97.
Plaintiffs
contend that Bums’ actions suggest that he “blindly accepted ADDA’s version of events” and
rise to the level of bad faith. See Pis.’
Opp. Br.
14. Again, “what constitutes ‘bad faith’
depends upon the circumstances.” Findley, 639 F.2d at 959. Given the circumstances and
evidence in the record, no reasonable juror could conclude that Bums’ action on behalf
of Local
I 5C before Plaintiffs’ terminations rose to the level of bad faith. Plaintiffs fail to provide other
viable options that were available to Bums and Callahan aside from those pursued by Bums
at
the time of their terminations. Moreover, the Third Circuit has emphasized the import
ance of
showing prejudice to an employee’s interests when union inactivity allegedly breaches the
duty
of fair representation. Bazarte, 429 F.2d at 872 (finding that union’s failure to keep
employee
informed was not a breach of duty “especially since there is not showing that this prejud
iced him
in any way”). Here, Local 1 SC’s decision to delay action did not prejudice Plainti
ffs.
Regardless of whether Local 1 5C challenged Plaintiffs’ terminations before their occurr
ence,
Article XI of Local 15C’s CBA with ADDA afforded Local 15C a means of challen
ging
Plaintiffs’ terminations after their occurrence. See Def. Local l5C’s 56.1 Stmt.
56.1 Stmt.
¶
¶
15; PIs.’ Resp.
15. Lastly, even if Local 1 5C ‘s actions before Plaintiffs’ terminations evince
d
“poor judgment,” this would still “not [be] enough to support a claim of unfair
representation.”
Bazarte, 429 F.2d at 872.
12
Second, Plaintiffs argue that Local 15C’s failure to act on their beha
lf before they
engaged independent counsel demonstrates bad faith. Pls.’
Opp. Br.
14. Plaintiffs’ argument is
unfounded. Evidence in the record shows that Plaintiffs’ counsel advise
d Local 15C of his
representation of Plaintiffs on October 4, 2011. Pls.’ 56.1 Stmt.
Stmt.
¶ 19; Def. ADDA’s Resp.
56.1
¶ 19. There is also evidence showing that before that date, Local I 5C engaged in the
following acts on Plaintiffs’ behalf. As noted above, Burns asked
Meade if there was anything
that could be done prior to Plaintiffs’ terminations, and asked Ferenc
e to both appear at each
termination meeting and instruct Plaintiffs to remain silent.
Def. Local 1 5C’s 56.1 Stmt.
98; PIs.’ Resp. 56.1 Stmt.
¶J 97-98. A shop steward or Local
¶J 97-
15C representative was in fact
present at each termination meeting. Def. Local 15C’s 56.1 Stmt.
¶ 102; Pis.’ Resp. 56.1 Stmt. ¶
102. Moreover, Callahan called Farmer the day after Plaintiffs’
terminations. Def. Local 1 5C’s
56.1 Stmt.
¶ 113; Pis.’ Resp.
56.1 Stmt.
¶ 113. During their conversation, Callahan requested
ADDA documents from Farmer and asked him whether anythi
ng could be done to return
Plaintiffs to work. Def. Local 15C’s 56.1 Stmt.
¶J 113-14; Pis.’ Resp.
56.1 Stmt.
¶J 113-14.
Shortly after this telephone call, Callahan and Bums met with
Farmer to again discuss whether
anything could be done to return Plaintiffs to work. Def. Local
15C’s 56.1 Stmt.
Resp. 56.1 Stmt.
¶ 115; Pls.’
¶ 115. Lastly, Burns called Local 15C’s counsel, McGuire, approximately one
week after the terminations to inform him of the situation.
Def. Local I SC’s 56.1 Stmt.
Pis.’ Resp. 56.1 Stmt.
¶ 116;
¶ 116.
Third, Plaintiffs argue that “[tjhe sham nature of the investi
gation, evidenced by the
conduct of the Union representatives at the December 2007
meeting with Gehringer and Kogit”
demonstrates bad faith. Pls.’ Opp. Br. 15. Gehringer and
Kogit provided affidavits wherein they
both stated, in essence, that they did not think that the meetin
g was fair. See Gebringer’s Aff.
¶
13
7; Kogit’s Aff.
¶ 7.
They noted that both the questions and demeanor of Local 15C’s
representatives gave them the impression that the meeting was aimed at prepar
ing a defense for a
possible lawsuit rather than assisting them. See Gehringer’s Aff.
¶J 5-8; Kogit’s Aff. ¶J 4-6.
They did not, however, provide any specific questions that should have
been asked or mention
anything specific about the representatives’ demeanor that would sugges
t the existence of bad
faith. “In order to satisfy the standard for summary judgment ‘the affiant
must ordinarily set
forth facts, rather than opinions or conclusions. An affidavit that is ‘essent
ially conclusory’ and
lacking in specific facts is inadequate to satisfy the movant [or non-movantj
‘s burden.” Blair v.
Scott Specialty Gases, 283 F.3d 595, 608 (3d Cir. 2002) (quoting
Maldonado v. Ramirez, 757
F.2d 48, 51 (3d Cir. 1985)). Here, Gehringer and Kogit’s affidavits failed
to set forth specific
facts behind their impressions and are, thus, insufficient. As “[m]ore than
mere unsupported
allegations are required to justify a finding of bad faith on a union’s part,”
Plaintiffs have failed
to raise a genuine dispute of material fact. Bellesfield, 675 F. Supp. at
956.
2.
Whether Local I 5C Acted Arbitrarily in Refusing to Arbitrate Plaintiffs’
Claims
Local 1 SC contends that it did not act arbitrarily in refusing to arbitra
te Plaintiffs’ claims.
Def. Local I 5C’s Br. 28-36. In opposition, Plaintiffs generally assert
that Local 1 5C’s actions
could fairly be characterized as arbitrary. Pls.’ Opp. Br. ‘5. “[A]
unions actions are arbitrary
only if, in light of the factual and legal landscape at the time of the
union’s actions, 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, 67, 111 S. Ct. 1127, 113
L. Ed. 2d 51(1991) (quoting
Ford Motor Co. v. Huffman, 345 U.S. 330, 338,73 S. Ct. 681,97
L. Ed. 1048 (1953)). In other
words, “[a] union’s conduct can be classified as arbitrary only
when it is irrational, when it is
14
without a rational basis or explanation.” Marquez v. Screen Acto
rs Guild, Inc., 525 U.S. 33, 46,
119 S. Ct. 292, 142 L. Ed. 2d 242 (1998) (citation omitted).
Here, Local 1 5C provided a rational basis for its decision. Local
I 5C based its decision,
in part, on the fact that Plaintiffs’ timecard records received
from ADDA, when compared with
the GPS and E-ZPass records, revealed that they recorded time
that they did not actually work.
Def. Local 15C’s 56.1 Stmt. ¶J 86, 130; PIs.’ Resp. 56.1 Stmt.
¶J 86,
130. Local 15C further
based its decision on the refusal of mechanics Mora and Joyc
e to subscribe to Plaintiffs’ billing
practices after talking with Ference. Def. local 15C’s 56.1
Stmt.
Stmt.
¶J
¶J 123-26; PIs.’
Resp. 56.1
123-26. Thus, no reasonable jury could find that Local 15C’s
decision not to arbitrate
Plaintiffs’ claims was without rational basis, or, in other words,
arbitrary. See, e.g., Thrash v.
PepsiCo, 11-410, 2012 WL 3779351, *9..1o (M.D. Pa. Aug.
7,2012), adopting magistrate
judge’s report and recommendation, 2012 WL 3779350 (M.
D. Pa. Aug. 30, 2012) (concluding
that no reasonable jury could find union’s decision not to arbit
rate plaintiff’s termination
arbitrary, discriminatory, or in bad faith where union offic
ials based that decision on documents
requested and received from employer).
What’s more, even if Cirillo authorized Plaintiffs’ billing
practices, a successful outcome
for Plaintiffs remained doubtful for at least two reasons. First,
the evidence gathered showed
discrepancies in four of Plaintiffs’ timecards before Cirillo
allegedly authorized Plaintiffs’ billing
practices. Def. Local 15C’s Stmt.
¶
151; Pls.’ Resp. 56.1 Stmt.
¶
151. And, second, Local 15C’s
CBA with ADDA both trumped and conflicted with Plain
tiffs’ unilateral deal with Cirillo. The
CBA trumped Plaintiffs’ unilateral deal with Cirillo as it
identified Local I 5C as the “sole
representative for unit members.” Def Local l5C’s Stmt.
¶ 6; Pis.’ Resp.
56.1 Stmt.
¶ 6.
The
CBA conflicted with Plaintiffs’ unilateral deal with Ciril
lo because it did not specifically address
15
“piecework” payment
and otherwise provided for payment for “work performed”
worked.” Def. Local 15C’s Stmt.
or “hours
¶J 9-11 ; Pls.’ Resp. 56.1 Stmt. ¶J 9-11. To the extent that
Plaintiffs attempt to refute this interpretation, “a unio
n does not breach its duty of fair
representation by rejecting an employee’s inter
pretation of the collective bargaining agreement
unless the union’s interpretation is itself arbitrary
or unreasonable.” Bache v. Am. Tel. & Tel.,
840 F.2d 283, 291 (5th Cir. 1988) (quoted favo
rably in Acosta v. HOVENSA LLC, 2013 WL
3481714, *2 (3d Cir. July 9, 2013). Plaintiffs
have failed to come forward with any evidence or
binding legal authority suggesting—much less dem
onstrating—that Local 1 SC’s interpretation of
the CBA is arbitrary or unreasonable. Since Plain
tiffs have failed to raise a genuine dispute of
material fact, summary judgment in favor of Loca
l I SC is proper as to Plaintiffs’ breach of the
duty of fair representation claim.
B.
Whether ADDA Breached its CBA with Local
I 5C
Again, “[a] breach of the duty of fair representa
tion is a ‘necessary condition precedent’
to the
[breach of the CBA claim against the employe
r] in hybrid suits where the employee
sues both the employer and union.
Aibright, 273 F.3d at 576. Here, this condition
precedent to Plaintiffs’ breach of the CBA claim
against ADDA is not met as this Court above
held that Local 1 5C did not breach the duty
of fair representation. Accordingly, the Court
grants
ADDA’s motion for summary judgment as
to Plaintiffs’ breach of the CBA claim. See,
4
e.g.,
Fajardo v. Foodtown Supermarkets, 702 F.
Supp. 502, 508 (D.N.J. 1988) (granting employe
r’s
motion for summary judgment on breach of
CBA claim where plaintiff failed to proffer
sufficient evidence from which a jury could
conclude that the union breached its duty of
fair
representation).
.
.
.
.
.
.“
To the extent that Plaintiffs now attempt to asser
t an equitable estoppel claim against ADDA, this
claim was not set
forth in the operative complaint in this matter
and is, therefore, not properly before this Cou
rt.
‘
16
IV.
CONCLUSION
For the reasons discussed herein, Defendants’ motions
for summary judgment are
GRANTED in their entirety.
An appropriate Order accompanies this Opinion.
DATED:
‘3
of October, 2013.
JO
L. LINARES
U.S. DISTRICT JUDGE
17
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