Opinion
Case No. 00-1259-JAR
March 12, 2003
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DISMISSING STATE LAW CLAIM
This is a hybrid Section 301/duty of fair representation action under the Labor Management Relations Act, 29 U.S.C. § 185, in which Plaintiff Tony Balderas alleges that The Cessna Aircraft Company ("Cessna") breached the Collective Bargaining Agreement that covered his position by terminating him; and further alleges that Cessna terminated him in retaliation for filing a complaint with OSHA, in violation of Kansas public policy. This matter comes before the court on Cessna's motion for summary judgment (Doc. 87). For the reasons set forth in detail below, Cessna's motion is granted as to plaintiff's federal claim, and the state law claim is dismissed without prejudice.
I. Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Id. at 251-52.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. The court must consider the record in the light most favorable to the nonmoving party.
See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
See Anderson, 477 U.S. at 256.
Id.
See id.
See Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984), cert. denied 469 U.S. 1214 (1985).
The court notes that summary judgment is not a "disfavored procedural shortcut"; rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."
Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
II. Statement of Facts
The following facts are taken from the summary judgment record and are either stipulated, uncontroverted or viewed in the light most favorable to plaintiff's case. The court ignores factual assertions that are immaterial, or not supported by affidavits and/or authenticated and admissible documents. The court also disregards conclusory statements and statements that are conclusions of law rather than statements of fact.
Plaintiff was born in Mexico. He has lived in the United States for over 30 years and understands English well. Plaintiff was hired at Cessna on April 30, 1990, as a sheet metal assembler, and his duties included assembling seats. Plaintiff's position was covered by a Collective Bargaining Agreement ("CBA"), under which employees could be fired for cause. Plaintiff was a member of the International Association of Machinists and Aerospace Workers, AFL-CIO ("the Union"). He was elected a Union steward in March 1999.
On the day plaintiff's department was moved to the C-6 building in April 1999, employees complained of headaches and dizziness. That day plaintiff asked Carol Ullum, his second level manager, to come to his area and investigate these complaints; plaintiff mentioned the possibility that the paint booths were not working properly. Later that day, plaintiff asked safety advocate Pepper Garcia to come to his area and investigate. Ms. Garcia felt the problems were serious enough to set up a meeting with plaintiff, Ms. Ullum and the manager of the completion center, Bob Bailey. Plaintiff and Garcia completed several safety and health action requests. Approximately one week later, plaintiff and other employees filled out grievances regarding the environment in building C-6. Plaintiff took these grievances to Paul Dykstra, the Union plant chairman, who would not accept the grievances because plaintiff had not followed the correct process for dealing with safety issues under the CBA.
A safety committee meeting was held on May 18, 1999, where issues concerning building C-6 were discussed. Plaintiff was not present at this meeting, which was attended by Bob Bailey. The next day, Bailey informed plaintiff of some of the options discussed at the meeting, including covering light fixtures, but apparently none addressed plaintiff's safety concerns.
On June 1, 1999, Ullum and Bob Winningham, a human resources representative, met with plaintiff to discuss reports that plaintiff was not properly clocking to Union time. Plaintiff was not disciplined at this meeting, and was advised as to the proper method of clocking Union time.
On June 8, 1999, plaintiff filed a formal complaint with OSHA regarding his health and safety concerns for building C-6. OSHA visited building C-6 the next day, and Cessna was issued three citations. Ullum and Bailey were aware that plaintiff had filed the OSHA complaint.
On September 21, 1999, plaintiff and three other Union stewards held a meeting on company time that was not properly authorized. Plaintiff erroneously believed the meeting was authorized and had been arranged by the Union Business Representative, Terry Carrington. Mark Dolan, who worked in Cessna's Labor Relations Department, was informed that an unauthorized meeting was being held and Carrington was sent to stop the meeting. Two days later, a meeting with management was arranged for the Union stewards to voice concerns. Plaintiff reported problems he had with Ms. Ullum, at which time he made derogatory statements attacking Ms. Ullum personally. Afterwards, Mr. Dolan warned plaintiff and the other stewards that if they attempted to slow or stop production they would be terminated.
Plaintiff and Mr. Escalante, another steward, held a meeting with employees on September 24, 1999, to discuss the meeting the previous day and to collect complaints from the employees. The meeting began on break time. Plaintiff's supervisor reported to Ms. Ullum that the meeting went over into company time, which Ullum reported to Mr. Dolan. Plaintiff disputes that the meeting went into company time. Plaintiff and Escalante were suspended for three days due to their initiation of the unauthorized meeting held on company time.
The final decision to suspend plaintiff was made by John Moore, Executive Vice President of Human Resources, who based his decision on a report from Mr. Dolan. Mr. Moore has filed an affidavit stating that he did not have knowledge that plaintiff had filed a complaint with OSHA or made complaints to Cessna about safety concerns, which plaintiff disputes. Mr. Dolan testified that he was unaware of plaintiff's OSHA complaint when he reported to Mr. Moore, which plaintiff also disputes. Ms. Ullum was not present at any of the meetings that resulted in plaintiff's three-day suspension, nor was she consulted in regard to his suspension. Although present at the meeting with Dolan and plaintiff when plaintiff was informed of his suspension, Mr. Bailey did not make any decisions regarding plaintiff's discipline. On September 29, 1999, plaintiff filed a grievance regarding his suspension.
In November 1999, Pedro Aguilar reported to Ms. Ullum that plaintiff, who worked first shift, told him on several occasions that Aguilar and other second shift employees were working too fast and needed to slow down. Plaintiff would talk to Aguilar in Spanish, then Aguilar would tell other second shift employees what had been said. Aguilar testified that he thought plaintiff was serious when he made these statements. Ms. Ullum called labor relations and interviewed three second shift employees, two of whom stated plaintiff was attempting to intimidate them. Ullum did not interview Mr. Aguilar. Ullum reported Aguilar's complaints to Mr. Dolan and provided him with notes from the employee interviews.
On November 24, 1999, Mr. Dolan suspended plaintiff indefinitely pending investigation of the complaint; and plaintiff filed a grievance. Dolan interviewed the second shift witnesses to confirm Ms. Ullum's report, and reported the results of his investigation to Terry Kriebel, his supervisor and director of Human Resources. Plaintiff was offered a "last chance agreement" whereby he could return to Cessna if he would agree to be transferred, give up his union position and release all claims against the company, including his grievances. Upon plaintiff's rejection of the last chance agreement, Ms. Kriebel instructed Dolan to terminate plaintiff. Ms. Kriebel made the final decision to terminate plaintiff after conferring with John Moore. Ms. Kriebel has filed an affidavit stating that she was not aware that plaintiff had filed a complaint with OSHA, which plaintiff disputes. Dolan notified plaintiff that he was terminated on December 10, 1999, and plaintiff filed a third grievance on December 15, 1999. Dolan testified that he was unaware of plaintiff's OSHA complaint until after plaintiff was terminated, which plaintiff disputes.
Plaintiff's three grievances were submitted to arbitration, pursuant to the CBA. When plaintiff's initial representative died in an automobile accident in December 2000, plaintiff was allowed to select someone to represent him during arbitration. Although given the option of using his own attorney, plaintiff chose Union Business Representative Tony Larkin. In preparation for the arbitration hearing, plaintiff provided Larkin with a diary, documents and names of witnesses. Larkin and plaintiff had frequent contact in preparing for the arbitration. Larkin was assisted by several in-plant Union representatives. Plaintiff testified at the hearing held July 9-10, 2001. Transcripts were taken of all testimony given. Larkin and the company representative made opening statements and were allowed to cross examine witnesses. Larkin filed a written brief on behalf of plaintiff following the hearing.
The arbitrator entered an award denying all of plaintiff's grievances on November 26, 2001. First, the arbitrator found that plaintiff was directly involved in holding a meeting with employees over the break on September 24, 1999, that extended past break time for well over five minutes. Second, he found that plaintiff "sought to influence Pedro Aguilar into having the second shift slow down production because they were making the first shift look bad." Third, he found that plaintiff's conduct was "a betrayal of his stewardship and repugnant to the parties' contractual relationship." Finally, he found that Cessna had cause to issue plaintiff a three-day suspension and had cause to discharge plaintiff for "attempting to get the second shift employees to slow down." No appeal was taken from the arbitrator's award.
In June 2001, plaintiff brought a hybrid claim against the Union and Cessna. On June 10, 2002, plaintiff's claim against the Union was voluntarily dismissed with prejudice.
III. Analysis
A. Section 301 breach of CBA
Plaintiff's claim against Cessna alleges a breach of the collective bargaining agreement under Section 301 of the Labor Management Relations Act. In general, a union employee must first exhaust the grievance and arbitration procedures provided in a collective bargaining agreement before bringing suit against the employer in federal court. The employee will ordinarily be bound by the result of such proceedings in accordance with the finality provisions in the agreement. Notwithstanding the outcome of the internal proceedings, however, the Supreme Court has created a judicial exception for cases when "the union representing the employee in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation." In such a so-called "hybrid suit," an employee may sue either the union, his employer or both. However, "a plaintiff may not prevail against either his employer or his union unless he establishes that his discharge contravened the collective bargaining agreement and that his union breached its duty of fair representation." As discussed below, the court finds that summary judgment is warranted against this claim because plaintiff cannot prove that the Union breached its duty of fair representation.
DelCostello v. International Broth. of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983).
Id.
Id. at 164.
See Edwards v. Int'l Union, United Plant Guard Workers of Am., 46 F.3d 1047, 1051 (10th Cir. 1995).
DelCostello, 462 U.S. at 164-65; Edwards v. International Union, United Plant Guard Workers of America, 46 F.3d 1047, 1051-52 (10th Cir.) cert. denied 516 U.S. 811 (1995)).
A union breaches its duty of fair representation only if its actions are "arbitrary, discriminatory, or in bad faith." A union's 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." This irrational standard is deferential, and courts are not to second guess the union's decisions. In order to successfully defend against a motion for summary judgment on a duty of fair representation claim, the plaintiff must point the court to evidence in the record supporting any one or all of these elements, namely, that the actions of the union were "arbitrary, discriminatory, or in bad faith." "Negligence will not state a claim for violation of [the union's fair representation] duty." Moreover, when a union proceeds to arbitration with an employee's grievance, the union's breach must also "seriously undermine the integrity of the arbitral process."
Air Line Pilots Ass'n, Intern. v. O'Neill, 499 U.S. 65, 67, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991).
Id. (further quotation omitted).
Id. at 76-79.
Griffin v. Air Line Pilots Ass'n, Intern., 32 F.3d 1079, 1083 (7th Cir. 1994).
Id.; Fed.R.Civ.P. 56(e).
Le'Mon v. N.L.R.B., 952 F.2d 1203, 1205 (10th Cir. 1991); see also Young v. United Auto. Workers Labor Employment and Training Corp., 95 F.3d 992, 997 (10th Cir. 1996).
United Parcel Service, Inc. v. Mitchell et al., 451 U.S. 56, 61(1981).
Plaintiff argues that the Union failed to present evidence or argument regarding the OSHA/safety issue, failed to investigate with regard to Pedro Aguilar, and failed to actively prosecute his grievance. Plaintiff does not specifically allege that the actions of the Union were arbitrary, in bad faith or discriminatory. Instead, the focus of plaintiff's claim is that the Union's handling of his grievances was perfunctory, which he interprets to mean "the [U]nion acted without concern or solicitude, or gave a claim only cursory attention." The Tenth Circuit appears to place perfunctory grievance handling on equal footing with bad faith, discriminatory and arbitrary union conduct. OSHA/safety issue
Webb v. ABF Freight System, Inc., 155 F.3d 1230, 1240 (10th Cir. 1998), cert. denied 526 U.S. 1018 (1999) (citing Beavers v. United Paperworkers Int'l Union, 72 F.3d 97 (8th Cir. 1995)).
Webb, 155 F.3d at 1239.
Plaintiff argues that the Union's failure to present evidence regarding his OSHA safety complaint at the arbitration hearing constitutes a perfunctory grievance handling. The Union investigated and attempted to present evidence at the hearing about plaintiff's OSHA complaint and its theory that he was terminated due to that complaint. However, the arbitrator refused to let Larkin present testimony about the safety issues, because he thought the Union's case was based on speculation. Plaintiff contends that the Union failed to adequately prepare for raising the OSHA issue.
It is true that Mr. Larkin failed to offer evidence of the OSHA complaint at the arbitration hearing. However, it appears the decision not to present the OSHA argument was based on the indication by the arbitrator that he viewed such an argument with disfavor. Failure to present a certain argument or line of evidence, even when requested by the grievant, is insufficient to establish a breach of the duty of fair representation in light of the other efforts made by Mr. Larkin. To conclude otherwise would allow the Union's good faith, nondiscriminatory judgment to be substituted by that of this Court, which the Court is unwilling to do. In any event, based on the undisputed facts, Larkin's failure to present the OSHA argument could at most be characterized as negligent, and is not the stuff of arbitrary or perfunctory conduct. Pedro Aguilar investigation
Young, 95 F.3d at 998.
Id. at 998; see Stevens v. Moore Business Forms, Inc., 18 F.3d 1443, 1447-48 (9th Cir. 1994).
Cf. Lampkin v. UAW, 154 F.3d 1136, 1145 (10th Cir. 1998) (Court upheld verdict for employee where only an abbreviated presentation was made of employee's side of the case in the early stages and then, without advising employee, the union "pulled" his grievance before an arbitration hearing).
Plaintiff cites the Union's alleged failure to investigate with respect to Pedro Aguilar, who was called as a witness by Cessna during the arbitration hearing. "[T]he failure to investigate the merits of a grievance could be arbitrary conduct and a breach of duty." The amount of investigation required of a union to meet its duty of fair representation depends on the circumstances of each case.
Webb, 155 F.3d at 1241 (citing Foust v. International Broth. of Elec. Workers, 572 F.2d 710, 716 (10th Cir. 1978), rev'd in part 442 U.S. 42 (1979) (citations omitted)).
Id. (citations omitted).
In this case, although Mr. Larkin did not interview Mr. Aguilar, two Union representatives who assisted Larkin in preparing the arbitration, did interview him after plaintiff was terminated. Moreover, Larkin cross-examined Aguilar at the arbitration hearing and presented witnesses to attempt to contradict Aguilar's testimony. Plaintiff does not articulate the purpose any further investigation might have served. Based on the undisputed facts, any lack of additional investigation by Larkin could not be characterized as arbitrary or perfunctory.
Failure to actively prosecute grievance
Plaintiff contends that the Union violated its duty of fair representation because his arbitration hearing was held 1½ years after his termination. Plaintiff alleges that the Union did not schedule his grievance for arbitration for six months after his termination, forcing him to file this Section 301 claim to avoid the running of the six-month statute of limitations. This argument is without merit. The statute of limitations for a Section 301 claim does not begin running until the employee discovers or should know of the acts constituting the union's alleged violation. When a union represents an employee throughout a grievance procedure, and takes the grievance to arbitration, the statute of limitations does not begin running until "the dispute resolution process has been completely exhausted." Thus, the statute of limitations on plaintiff's claim did not begin to run until he learned of the arbitrator's decision in November 2001. In fact, discovery in this case was stayed early on until plaintiff exhausted his grievance and arbitration remedies.
Lucas v. Mountain States Telephone Telegraph, 909 F.2d 419, 420-421 (10th Cir. 1990).
Id. at 421.
Id.
Moreover, the fact that arbitration was delayed does not, on its own, justify finding a breach of the duty of fair representation. The Union and Cessna had originally scheduled arbitration for January 2001, approximately one year after plaintiff's termination. Due to the unexpected death of Union business representative Richard Aldrich, the arbitration was rescheduled for July 2001, to allow plaintiff's new representative, Mr. Larkin, to adequately prepare. Plaintiff was informed of the delay and was given the option of having his attorney represent him, although he opted for Mr. Larkin's representation. There is no evidence that the delay in arbitration was arbitrary or perfunctory, nor is there evidence of deceit.
Robinson v. Union Pacific R.R., 98 F. Supp.2d 1211, 1221 (D.Colo. 2000).
Conclusion
In sum, plaintiff cannot refute that he was fairly represented by the Union with regard to his grievances. The evidence is uncontroverted that plaintiff met with his chosen representative, Mr. Larkin, and provided him with evidence, witnesses and suggestions. Plaintiff and Larkin had frequent contact when preparing for arbitration. Larkin had assistance in his preparation and witnesses were interviewed as part of the investigation. At the arbitration hearing, Larkin gave an opening statement, cross-examined all of Cessna's witnesses and presented witnesses on plaintiff's behalf. Larkin filed a written brief after the hearing. The record directs the conclusion that the Union did not breach its duty of fair representation. The record is devoid of evidence that the Union's actions were arbitrary, perfunctory, discriminatory or in bad faith. A reasonable jury could not find otherwise. Thus, the court shall grant Cessna's motion for summary judgment on plaintiff's Section 301 hybrid claim.
Cessna also contends that plaintiff is collaterally estopped from litigating the issue of the Union's breach of duty of fair representation because he voluntarily dismissed the Union, with prejudice, from this lawsuit. In light of the court's other holdings, it is unnecessary to decide this issue.
B. Retaliatory discharge
Having found that summary judgment is appropriate on the plaintiff's federal claim under Section 301 of the Labor Management Relations Act, the court must determine whether it may — or should — exercise continuing jurisdiction over plaintiff's remaining state law claim for retaliatory discharge. By statute, the court is authorized to decline supplemental jurisdiction upon the dismissal of all claims over which it had original jurisdiction. The exercise of supplemental jurisdiction is committed to the court's sound discretion. 28 U.S.C. § 1367 "reflects the understanding that, when deciding whether to exercise supplemental jurisdiction, 'a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness and comity.'"
City of Chicago v. International College of Surgeons, 522 U.S. 156, 172-73 (1997); see Anglemyer v. Hamilton County Hosp., 58 F.3d 533, 541 (10th Cir. 1995).
City of Chicago, 522 U.S. at 173 (quoting Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 (1988)); see also Gold v. Local 7 United Food and Commercial Workers Union, 159 F.3d 1307, 1310 (10th Cir. 1998).
Upon a pretrial disposition of the federal claims, district courts will generally dismiss the state law claims without prejudice. This general practice is in keeping with the holdings of the Supreme Court and the Tenth Circuit. "Notions of comity and federalism demand that a state court try its own lawsuits, absent compelling reasons to the contrary."
Ball v. Renner, 54 F.3d 664, 669 (10th Cir. 1995); see also Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1237 (10th Cir. 1997).
Id.
Thatcher Enterprises v. Cache County Corp., 902 F.2d 1472, 1478 (10th Cir. 1990).
Here, the court has dismissed plaintiff's federal claim, over which it had original jurisdiction. Consequently, this court, in its discretion, declines to exercise supplemental jurisdiction over plaintiff's remaining state law claim. Therefore, plaintiff's retaliatory discharge claim is dismissed for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1367(c). Plaintiff is free to pursue his claim in a Kansas court because even if the statute of limitations would otherwise have run, 28 U.S.C. § 1367(d) affords him at least 30 days from a current federal court dismissal to commence a new action in the state court. In this case, because discovery is complete, the court conditions dismissal on use of all discovery in any subsequently filed state court case.
Kansas's "saving statute," K.S.A. 60-518, affords a plaintiff six months to commence a new action if a previous timely action failed "otherwise than upon the merits." Examples of such failures include dismissal without prejudice. See Rogers v. Williams, Larson, Voss, Strobel Estes, 245 Kan. 290 (1989). If applicable, this time frame controls over the 30-day tolling period in 28 U.S.C. § 1367(d). Needless to say, the court expresses no substantive view on which statute applies. Cf. Raygor v. Regents of the University of Minnesota, 534 U.S. 533 (2002) (Section 1367(d) does not operate to toll the periods of limitations for state law claims dismissed on Eleventh Amendment grounds).
IT IS THEREFORE ORDERED BY THE COURT that defendant Cessna's motion for summary judgment (Doc. 87) on plaintiff's claim under Section 301 of the Labor Management Relations Act is GRANTED;
IT IS FURTHER ORDERED that the court declines to exercise supplemental jurisdiction over the remaining state law claims and the state law claims shall be DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c)(3).
IT IS SO ORDERED.