Blesedell v. The Chillicothe Telephone Company et al
Filing
25
ORDER granting 11 Motion to Dismiss. Signed by Judge James L Graham on 11/19/13. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Jason Blesedell,
Plaintiff,
v.
Case No. 2:13-cv-451
The Chillicothe Telephone
Company, et al.,
Defendants.
OPINION AND ORDER
This is an action brought by plaintiff, Jason Blesedell,
pursuant to Section 301 of the Labor Management Relations Act, 29
U.S.C. §185, and Ohio law.
In the first count of his complaint,
plaintiff alleges that on December 17, 2012, defendant Chillicothe
Telephone Company (“Chillicothe Telephone”), his former employer,
discharged
him
without
just
cause,
and
that
defendants
International Brotherhood of Electrical Workers Local 578 (“Local
578")
and
International
International
Union
Brotherhood
(“IBEW”)
of
breached
Electrical
their
duty
Workers,
of
fair
representation by failing to pursue his grievance to arbitration.
In the second count of the complaint, plaintiff asserts a claim of
defamation under Ohio law, alleging that defendant Eric Stevens, an
employee of Chillicothe Telephone, made false statements concerning
his termination.
This matter is before the court on IBEW’s motion to dismiss
the complaint against it pursuant to Fed. R. Civ. P. 12(b)(6) for
failure to state a claim for which relief may be granted.
I. Standards under Rule 12(b)(6)
In ruling on a motion to dismiss under Rule 12(b)(6), the
court must construe the complaint in a light most favorable to the
plaintiff, accept all well-pleaded allegations in the complaint as
true, and determine whether plaintiff undoubtedly can prove no set
of facts in support of those allegations that would entitle him to
relief.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v.
Lucent Technologies, Inc., 520 F.3d 516, 519 (6th Cir. 2008);
Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005).
To
survive a motion to dismiss, the “complaint must contain either
direct or inferential allegations with respect to all material
elements necessary to sustain a recovery under some viable legal
theory.”
Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005).
Conclusory allegations or legal conclusions masquerading as factual
allegations will not suffice.
While
the
complaint
Id.
need
not
contain
detailed
factual
allegations, the “[f]actual allegations must be enough to raise the
claimed right to relief above the speculative level,” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007), and must create a
reasonable expectation that discovery will reveal evidence to
support the claim. Campbell v. PMI Food Equipment Group, Inc., 509
F.3d 776, 780 (6th Cir. 2007).
A complaint must contain facts
sufficient to “state a claim to relief that is plausible on its
face.”
Twombly, 550 U.S. at 570.
“The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than
a sheer possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
pleads
facts
that
are
merely
consistent
Where a complaint
with
a
defendant’s
liability, it stops short of the line between possibility and
plausibility of entitlement to relief.
2
Id.
Determining whether a
complaint states a plausible claim for relief is “a contextspecific task that requires the reviewing court to draw on its
judicial experience and common sense.”
Id. at 679.
Where the
facts pleaded do not permit the court to infer more than the mere
possibility of misconduct, the complaint has not shown that the
pleader is entitled to relief as required under Fed.R.Civ.P.
8(a)(2).
Id.
Plaintiff must provide “more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will
not do.”
Twombly, 550 U.S. at 555; see also Ashcroft, 129 S.Ct. at
1949 (“Threadbare recitals of the elements of a cause of action,
supported
by
mere
conclusory
statements,
do
not
suffice.”);
Association of Cleveland Fire Fighters v. City of Cleveland, Ohio,
502 F.3d 545, 548 (6th Cir. 2007).
In evaluating a motion to dismiss, a court generally is
limited to the complaint and exhibits attached thereto, and is not
permitted to consider matters beyond the complaint.
Mediacom
Southeast LLC v. BellSouth Telecommunications, Inc., 672 F.3d 396,
399 (6th Cir. 2012); Amini v. Oberlin College, 259 F.3d 493, 502
(6th Cir. 2001).
Most materials outside the pleadings may not be
considered in ruling on a 12(b)(6) motion to dismiss unless the
motion is converted to one for summary judgment under Fed.R.Civ.P.
56.
Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir.
1999), abrogated on other grounds, Swierkiewicz v. Sorema N.A., 534
U.S. 506 (2002).
However, the court may consider a document or
instrument which is attached to the complaint, or which is referred
to in the complaint and is central to the plaintiff’s claim.
See
Fed.R.Civ.P. 10(c)(“[a] copy of any written instrument which is an
3
exhibit to a pleading is a part thereof for all purposes.”);
Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 680-81 (6th Cir.
2011).
With its motion to dismiss, IBEW has submitted a copy of
the labor agreement between Chillicothe Telephone and Local 578.
That agreement is referred to in paragraph eight of plaintiff’s
complaint, and is central to plaintiff’s claims.
Therefore, the
court may consider this agreement in ruling on the motion to
dismiss.
II. IBEW’s Motion to Dismiss
Plaintiff alleges in his complaint that Local 578 and IBEW had
a duty to fairly represent employees of Chillicothe Telephone such
as plaintiff who were covered by the terms of the labor agreement.
Complaint, ¶ 9.
Plaintiff alleges that he was terminated on
December 17, 2012, for not performing work on December 4, 2012, and
trying
to
cover
up
his
non-performance.
Complaint,
¶
12.
Plaintiff contends that he did in fact perform the work he reported
on December 4, 2012.
Complaint, ¶ 13.
Plaintiff alleges that
although Local 578, with the assistance of IBEW, filed a grievance
protesting plaintiff’s termination, Local 578 and IBEW refused to
take the grievance to arbitration, and that this refusal was
arbitrary, in bad faith, and discriminatory. Complaint, ¶¶ 14-15.
Plaintiff
alleges
that
these
defendants
failed
witnesses or otherwise investigate his termination.
16.
to
interview
Complaint, ¶
Plaintiff contends that the defendants discriminated against
him by failing to take his termination to arbitration, as evidenced
by the fact that in the past, Local 578 had taken all terminations
to arbitration unless the employee requested that arbitration not
be
pursued.
Complaint,
¶
17.
4
Plaintiff
alleges
that
the
defendants acted in bad faith, as demonstrated by Local 578's
prohibiting plaintiff from acting as union steward for the Local’s
members.
Complaint, ¶ 18.
IBEW argues that the complaint fails to state a claim against
it for breach of the duty of fair representation because it owes
plaintiff no such duty.
IBEW notes that it is not a party to the
labor agreement between Chillicothe Telephone and Local 578, and
that
Local
578,
not
IBEW,
is
the
exclusive
bargaining
representative of the Chillicothe Telephone employees represented
by Local 578.
See Complaint, ¶ 6 (Local 578 “is the bargaining
representative of Plaintiff and other employees of Chillicothe
Telephone”).
The Labor Agreement between the Chillicothe Telephone Company
and IBEW Local 578, effective November 16, 2012, to November 15,
2013,
states
Telephone.
that
it
is
between
Doc. 11-1, Article 1.
Local
578
and
Chillicothe
The Labor Agreement further
states that the “Company hereby recognizes Local Union Number 578
as the exclusive bargaining agency” for employees covered by the
agreement.
Doc. 11-1, Article 2.
The Labor Agreement also
provides that if a grievance is not resolved in the first three
steps of the grievance procedure, “the Union [defined in Article 1
as Local 578] may take it to the final step, arbitration[.]”
Doc.
11-1, Section 8.5, Step 4.
“When a union is selected as exclusive representative of the
employees in a bargaining unit, it has a duty under § 9(a) of the
National Labor Relations Act to fairly represent them.”
Alcoa
Wheel
&
Forged
Products,
577
F.3d
625,
631
2009)(citing Vaca v. Sipes, 386 U.S. 171, 177 (1967)).
5
Courie v.
(6th
Cir.
A union’s
duty of fair representation derives from the union’s status as the
employees’ exclusive bargaining representative.
Renner v. Ford
Motor Co., 516 Fed.Appx. 498, 502-03 (6th Cir. 2013)(citing Driver
v. United States Postal Service, Inc., 328 F.3d 863, 868 (6th Cir.
2003)).
“[E]xclusive representation is a necessary prerequisite to a
statutory
duty
to
represent
fairly.”
McCormick
v.
Aircraft
Mechanics Fraternal Ass’n, 340 F.3d 642, 645 (8th Cir. 2003).
Courts have held that where the international union was not a party
to the collective bargaining agreement and was not the plaintiffs’
exclusive bargaining representative, it did not owe plaintiffs a
duty of fair representation.
See Tongay v. Kroger Co., 860 F.2d
298, 299-300 (8th Cir. 1988)(international did not have a duty of
fair representation because it was not the exclusive bargaining
representative); Sine v. Local No. 992, Int’l Brotherhood of
Teamsters, 730 F.2d 964, 966 (4th Cir. 1984)(under §301, suit may
be brought only against the parties to the contract; where only
local union, not the international union, was a party to the
agreement
and
local
union
was
designated
as
the
exclusive
bargaining agent responsible for representing employees in the
prosecution of grievances, only the local can be held responsible
for breaching duty of fair representation); Lawrence v. Int’l
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America,
No.
3:98CV7047
(unreported),
2001
WL
243532
at
*6
(N.D.Ohio Mar. 12, 2001)(where international union was not the
exclusive
bargaining
representative
or
a
signatory
to
the
agreement, international union owed no duty of fair representation
to plaintiff);
Beckett v. Anchor Motor Freight, Inc., No. C-1-77-
6
88
(unreported),
1982
WL
2036
at
*5-6
(S.D.Ohio
Oct.
25,
1982)(union owes a duty of fair representation only when it is the
employee’s exclusive bargaining representative and only when it is
acting in a representative capacity; where local union was named in
agreement as sole representative of employees in the processing of
grievances
and
international
union
was
not
a
party
to
the
agreement, international union was not liable for claim that
grievances were processed in an arbitrary or perfunctory manner).
Plaintiff alleges in his complaint that Local 578 “is assisted
in its duties as bargaining representative by IBEW” and that Local
578 filed a grievance on his behalf “with the assistance of
IBEW[.]”
Complaint, ¶¶ 6, 14.
However, courts have held that an
international union’s assistance or collateral involvement in the
grievance
procedure
is
not
sufficient
to
impose
upon
the
international union a duty of fair representation. For example, in
Tongay,
860
F.2d
international
at
299-300,
union
was
the
not
court
the
held
that
exclusive
where
the
bargaining
representative, the international union did not assume a duty of
fair representation by appointing a representative to the grievance
In Sine, a lawyer employed by the international union
committee.
assisted
the
employees
and
the
local
in
prosecuting
their
grievances, and employees of the international union sat on the
joint committee that considered grievances before arbitration. The
court held that these factors were not sufficient to make the
international union a party to the bargaining agreement, to create
an agency relationship, or to impose a duty of fair representation
on the international union. 730 F.2d at 966 (“Assistance furnished
by an employee if the [international union] in prosecuting the
7
grievances
through
arbitration
did
not
constitute
the
[international union] a party to the bargaining agreement amenable
to suit under §301.”).
Common law theories of vicarious liability may apply to render
an international union liable for the tortious acts of its local
union. See, e.g., Alexander v. Local 496, Laborers’ Int’l Union of
North America, 177 F.3d 394, 409 (6th Cir. 1999)(international
union may be liable for violations of Title VII and 42 U.S.C. §1981
by
local
union
under
agency
theory
if
international
union
instigated, supported, ratified, or encouraged those actions).
However,
plaintiff
has
not
discrimination in this case.
advanced
claims
of
tortious
Rather, discrimination is alleged
only as a component of plaintiff’s contractual claim for alleged
breach of the duty of fair representation. See Complaint, ¶ 15
(alleging that the refusal of Local 578 and IBEW to take the
discharge grievance to arbitration “was arbitrary, in bad faith and
discriminatory”).
Even if the complaint is construed as asserting
a tort claim, the allegations are insufficient to allege that IBEW
somehow mandated, encouraged or condoned illegal discrimination by
Local 578. In support of his allegation of discriminatory conduct,
plaintiff alleges that Local 578 had taken all grievances to
arbitration in the past, including the terminations of two other
employees named in the complaint.
Complaint, ¶¶ 15, 17.
However,
he does not allege that the failure of Local 578 and IBEW to take
his grievance to arbitration was due to some illegal discriminatory
motive such as race, national origin, gender or religion.
Plaintiff also suggests in his memorandum contra that Local
578 may have been acting as an agent of IBEW in failing to take his
8
grievance to arbitration, thus making IBEW liable for Local 578's
breach of the duty of fair representation.
agency
theory,
plaintiff
submitted,
for
In support of his
the
first
time
as
attachments to his memorandum contra, two e-mails which he received
from Local 578.
The first e-mail, dated January 31, 2013, from
Dave Morgan, Business Manager and President of Local 578, to
plaintiff, states:
After contacting the IBEW in Washington, our local found
out that the letter from the State of Ohio concerning
your unemployment would not be allowed to be presented as
eviden[ce] in your defense in arbitration. Also, when
you factor in all the other incidents for example[:]
customer complaints, public complaints, co-worker issues,
taped conversations, and doubt about altering a trouble
ticket we strongly believe we lose if the case goes to
arbitration. The Union does not wish to discuss this
matter any further.
The
second
e-mail
from
Dave
Morgan
to
plaintiff,
dated
February 18, 2013, states:
In summary, after contacting the IBEW in Washington, and
explaining your termination with them they concluded that
the Union could not win in arbitration. Also, the IBEW
International Representative assigned to IBEW Local 578
also advised [L]ocal 578 not to take your case to
arbitration.
Local 578's grievance committee also
decided your case could not be won in arbitration. These
decisions were made based on a totality of all the
evidence we examined during our investigation for example
customer complaints, public complaints, co-worker issues,
taped conversations, and doubt about altering trouble
tickets.
The Union went through three steps of the
grievance process and asking for your job back at each
meeting, including last chance agreements. Consequently,
the Company would not give you your job back. With all
this being said, the Union has closed this file and sees
no reason to open it at this time.
This e-mail correspondence constitutes matters outside the
pleadings which may not be considered by this court in ruling on a
9
motion to dismiss.
Even if the court were to consider these e-
mails, plaintiff has failed to allege facts sufficient to hold IBEW
liable under an agency theory.
There is no agency relationship between an international and
local union as a matter of law.
Moore v. Local Union 569 of Int’l
Brotherhood of Electrical Workers, 989 F.2d 1534, 1543 (9th Cir.
1993).
The fact that IBEW provided assistance to Local 578 is not
sufficient to establish an agency relationship. See Sine, 730 F.2d
at 966 (fact that lawyer employed by international union assisted
local union in the discharge of local’s duty of fair representation
did not create an agency relationship which would make the parent
union
liable
for
alleged
violations
of
local’s
contractual
responsibilities).
Plaintiff has produced no authority for the proposition that
an agency theory would be applicable in this case, where Local 578
is alleged to be plaintiff’s bargaining representative. Complaint,
¶ 6.
As the Fourth Circuit noted in Sine, an international union
“is not liable under §301 for its failure to prevent the local from
breaching the local’s contractual responsibilities.”
Sine, 730
F.2d at 966 (citing Carbon Fuel Co. v. United Mine Workers of
America, 444 U.S. 212, 216-18 (1979)).
The complaint and the
collective bargaining agreement indicate that Local 578, not IBEW,
is a party to the labor agreement and the exclusive bargaining
representative
charged
with
implementation
procedure under the labor agreement.
actor in the grievance process.
of
the
grievance
Local 578 is the principal
In such a case, an international
union’s duty of fair representation has been recognized only where
the plaintiffs alleged facts indicating that the international
10
union contractually assumed or functionally usurped the role of the
local union as exclusive bargaining representative.
See, e.g.,
Tomlison v. Kroger Co., C2-03-706 (unreported), 2006 WL 2850523 at
*4
(S.D.Ohio
Sept.
29,
2006)(denying
summary
judgment
where
evidence was presented that international union contractually
undertook the grievance-prosecution duties of the local union);
Bellamy v. Roadway Express, Inc., 668 F.Supp. 615, 623 (N.D.Ohio
1987)(holding that fair representation action could be maintained
against
international
union
in
light
of
allegations
that
international union had usurped bargaining powers of local union
and was in reality, if not in name, the exclusive bargaining
representative for plaintiffs).
The complaint in this case contains no facts indicating that
IBEW assumed or usurped Local 578's role as exclusive bargaining
representative. There is also no language in the e-mails submitted
by plaintiff which would reasonably lead to an inference that IBEW
compelled Local 578 not to pursue arbitration or usurped Local
578's decision-making authority in that regard.
Because the complaint fails to allege facts sufficient to show
that IBEW owes a duty of fair representation to plaintiff, IBEW’s
motion to dismiss is well taken.
III. Conclusion
In accordance with the foregoing, the motion to dismiss filed
by
the
International
Brotherhood
of
Electrical
International Union (Doc. 11) is granted.
Date: November 19, 2013
s/James L. Graham
James L. Graham
United States District Judge
11
Workers,
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