Opinion
No. 99 C 6154.
August 1, 2001
ORDER
Plaintiff, William Tanner, has filed suit against defendants, Nelson Tree Service, Inc. ("Nelson Tree") and Local No. 9 of the International Brotherhood of Electrical Workers ("IBEW"), under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 ("the Act"). Tanner, who was terminated by Nelson Tree for an alleged violation of company policy, contends that Nelson Tree terminated him in violation of its collective bargaining agreement with the IBEW, of which Tanner is a member. Tanner also argues that the IBEW violated § 301 of the Act by failing to pursue arbitration of his grievance with Nelson Tree. Tanner has settled his claims against Nelson Tree. The IBEW is still a defendant in this case and now moves for summary judgment on Tanner's § 301 claim against the IBEW. Tanner, in turn, moves for Rule 11 sanctions against the IBEW for its filing of a motion for summary judgment. For the reasons set for below, both the motion for summary judgment and the motion for sanctions are denied.
Background
It is undisputed that Nelson Tree has the following policy regarding the solicitation of side work by its tree trimmers:
Nelson tree trimmers [are permitted] to hand to residents their business card or to indicate orally that the tree trimmer has a private company which performs tree trimming work, but [this] policy strictly prohibits the solicitation of side work by means of quoting a price to any resident while on duty as a Nelson Tree Service employee.
(Aff. of John Reis, Southern Div. Area Mgr. for Nelson Tree Svc., Inc., Tab L to Def. Stmt. of Undisp. Facts ("SUF"), at ¶ 4.) (emphasis added) It is also undisputed that Nelson Tree terminated Tanner for allegedly violating this policy. Specifically, the company and the IBEW contend that on May 13, 1999, Tanner quoted a price of $20 for trimming a cherry tree owned by Arlene Avonts while Tanner was at Avonts' house trimming trees on company time. It is further undisputed that Tanner claims that he did not quote this or any other price for his services. What is in dispute is whether shortly after the incident at Avonts' house, Avonts told an investigator from the union, John Burkhard, that Tanner had quoted a price for his services. In an affidavit, Avonts now claims that at the time of the incident, Tanner "did not tell [Avonts] how much he would charge, and [Avonts] did not ask him." (Aff. of Arlene Avonts, Tab 1 to Pl. Stmt. of Mat. Facts, at ¶ 9.) Furthermore, Avonts declares the following:
In the [days following the incident], various company representatives visited my home to discuss [the incident]. I explained to each of the men, who came to my home on various different occasions regarding [the incident], the details of what transpired between the worker and me [during the incident], and those details are as I have stated them in this sworn statement.
( Id. at ¶¶ 15-16.) It is undisputed that Rick Nordyke, a general foreman for Nelson Tree, and Tom Ringhofer, a representative of Commonwealth Edison ("ComEd," the company for whom Nelson Tree was doing work at Avonts' house on May 13) spoke with Avonts on May 15, 1999, and that Nordyke and Ringhofer claim that Avonts told them that Tanner quoted a price of $20 for his services. It is also undisputed that Burkhard, the union official tasked with investigating the incident, spoke with Avonts on June 3, 1999, and that Burkhard also claims that Avonts told him that Tanner had quoted a price of $20. It is further undisputed that following his termination, Tanner filed a grievance with the IBEW; that the IBEW represented Tanner at two alternative dispute resolution meetings without success; and that the IBEW, following Burkhard's investigation, decided not to pursue Tanner's grievance to arbitration with Nelson Tree. Tanner contends that the decision not to pursue his grievance to arbitration was a violation of § 301 of the Act.
IBEW's Motion for Summary Judgment
The IBEW contends that Tanner has failed to raise a genuine issue of material fact that the IBEW failed to meet its duty of "fair representation" as required by § 301 of the Act. Konen v. Int'l. Brotherhood of Teamsters, 2001 WL 706050, *3 (7th Cir. June 25, 2001). Tanner vehemently disagrees.
In order to establish a claim against the union for breach of its duty of fair representation, a plaintiff must establish that the union's action was arbitrary, discriminatory, or taken in bad faith. Konen, 2001 WL 706050, at *4 (citing McKelvin v. E.J. Brach Corp., 124 F.3d 864, 867 (7th Cir. 1997)). In this case, Tanner alleges that the IBEW's actions in not pursuing his claims were either arbitrary or taken in bad faith. In order to show that a union's decision is arbitrary, a plaintiff must show that a union's actions are "so far outside a `wide range of reasonableness' as to be irrational." Id. (quoting McKelvin, 124 F.3d at 867) (citations omitted). "Therefore, `so long as a colorable argument could be made at the time of the union's decision to drop its support that the grievance is meritless . . ., the decision cannot be regarded as arbitrary.'" Id. (quoting McKelvin, 124 F.3d at 867-68) (citations omitted). In order to establish that a union acted in bad faith, a plaintiff must identify conduct that evidences a subjective bad faith motivation on the part of union officials for doing what they did. See id. (citing McKelvin, 124 F.3d at 868).
It appears that Tanner has raised a genuine issue of fact as to whether Nelson Tree acted arbitrarily. Tanner claims that he did not quote a price to Avonts for his services, and from Avonts' affidavit, it appears that she agrees. More importantly, however, Avonts claims that she recited this same fact to "various company representatives" who visited her home "on various different occasions" in the days following the incident. (Avonts Aff. at ¶ 15.) Making all reasonable inferences in favor of Tanner, a jury could find that Avonts gave her account of what happened, including her belief that Tanner had not quoted a price for his services, to Burkhard. If that were the case, a jury could believe that the IBEW did not have a colorable argument that Tanner's grievance was meritless at the time that the IBEW decided to drop support for Tanner's grievance. Konen, 2001 WL 706050, at *4. In that case, a jury could find that the IBEW had acted arbitrarily. See id.
The IBEW offers two arguments in opposition. One is that the dispute over what Avonts said during her interviews is immaterial. The IBEW contends that what matters is not what Avonts said but what Burkhard believes that Avonts said. The IBEW is correct insofar as it asserts that the focus should be on Burkhard's belief as to what Avonts said. Nevertheless, if what Avonts claims is true, namely that she told Burkhard that Tanner had not quoted a price for his services, then the trier of fact could question the truth of Burkhard's account of what he believed given what Avonts told him.
The other argument that the IBEW makes is that Avonts' affidavit does not affirmatively state that Avonts told Burkhard that Tanner did not quote a price. In fact, the IBEW argues, "the plain language of the affidavit only addresses the conversations that the affiant had with the company representatives" and only those conversations "in the following days after the incident." (Def. Reply at 3-4.) Because Burkhard did not interview Avonts "in the following days" and was not a company representative, the IBEW argues, Avonts must not have meant she recited to Burkhard the testimony she gave in her declaration. ( Id.) These arguments are not persuasive. As the IBEW correctly notes, it is true that the affidavit "does not contain an affirmative statement that Mrs. Avonts did, or did not, speak with Mr. Burkhard." (Avonts Aff. at ¶ 4.) It is undisputed, however, that Burkhard interviewed Avonts on June 3, 1999, approximately three weeks after the incident. Therefore, Avonts certainly spoke with Burkhard, and did so in the days following the incident. The question, of course, is whether Avonts told Burkhard what she claims she told company representatives. In her affidavit, Avonts did not identify whom she labeled as company representatives. Further, Avonts did not say that she told company representatives one thing (namely, that Tanner did not quote a price) and Burkhard another (Tanner did quote a price). Additionally, Avonts claims that she recited all the facts in her affidavit on "various different occasions." (Avonts Aff. at ¶ 16). The record indicates that Nordyke and Ringhofer visited Avonts only once on May 15, while Burkhard visited her once on June 3. Therefore, making all reasonable inferences in favor of Tanner, as this court must, a jury could reasonably conclude that Avonts told Burkhard what is contained in Avonts' testimony. If so, then there is a genuine issue of fact as to whether the Burkhard and the union acted arbitrarily in dropping support for Tanner's grievance. In that case, summary judgment must be denied.
Tanner's Motion for Sanctions
Tanner moves for sanctions under Rules 11(b)(1) and 11(b)(2), arguing that despite the fact that his attorney repeatedly advised the IBEW that Avonts' affidavit raised a genuine issue of fact that would defeat summary judgment, the IBEW moved for summary judgment anyway. This motion by the IBEW, Tanner argues, "needlessly increase[d] the cost of litigation." (Pl. Mot. for Sanctions at 7.) The IBEW responds that in making its motion, the IBEW genuinely concluded that "Summary Judgement was warranted by existing law." (Def. Resp. to Pl. Mot. for Sanctions at 7.)
Federal Rule of Civil Procedure 11(b) provides, in pertinent part, that by presenting a motion to the court, an attorney is certifying that "(1) [the motion] is not being presented for any improper purpose. . .;" and "(2) the . . .legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." Fed.R.Civ.Pro. 11(b)(1) and 11(b)(2). "For Rule 11 purposes a frivolous argument is simply one that is `baseless or made without a reasonable and competent inquiry.'" Berwick Grain Co., Inc. v. Illinois Dept. of Agriculture, 217 F.3d 502, 503 (7th Cir. 2000) (citations omitted).
Tanner argues that Rule 11(b)(1) was violated when IBEW made an allegedly frivolous motion despite being told that it was frivolous. However, "the `improper purpose' [element] of Rule 11(b)(1) [means] something other than [the] mere assertion of frivolous or unfounded legal arguments or contentions. . . ." Moore's Federal Practice 3d, § 11.11[8][e] at pp. 11-35,11-36 (citing Simon DeBartolo Group, L.P. v. Richard E. Jacobs Group, Inc., 186 F.3d 157, 176-77 (2d Cir. 1999)). Without any other evidence of an improper purpose, Tanner's Rule 11(b)(1) argument must fail.
Tanner argues that the IBEW violated Rule 11(b)(2) because it filed a motion for summary judgment "in the face of a patently material issue of fact." (Pl. Reply in Sup. of Mot. for Sanctions at 3.) This argument, however, must also fail. The question in determining whether the IBEW made a frivolous motion under Rule 11(b)(2) is whether the motion was "baseless or made without a reasonable and competent inquiry." Berwick, 217 F.3d at 503. Tanner has not presented evidence that IBEW failed to make a reasonable or competent inquiry into the current matter. Furthermore, viewed generously, IBEW's motion is not baseless. Rather, viewed generously, the motion is based on a flawed understanding of the standard for deciding motions for summary judgment. For example, IBEW argued that Avonts' affidavit was not important because it was silent as to whether Avonts had specifically related the contents of the affidavit to Burkhard. As mentioned above, however, on a defendant's motion for summary judgment, all reasonable inferences must be made in favor of the plaintiff. Therefore, in this case, silence in Avonts' affidavit operated in favor of the plaintiff, not the defendant. If IBEW had thought the opposite, then its conclusion could charitably viewed as a mistake.
Rule 11 is meant to punish frivolity, not mistakes. Cf. Berwick, 217 F.3d at 503 (holding that a party was properly sanctioned for arguing a legal position that the Seventh Circuit had repeatedly told the party was untenable). Tanner's motion for sanctions is denied.
Conclusion
For the foregoing reasons, the motions by IBEW for summary judgment and by Tanner for sanctions are denied.