Opinion
Case No: 02-21417-CIV-ALTONAGA/Bandstra
July 21, 2003
ORDER DENYING SUMMARY JUDGMENT
THIS CAUSE came before the Court upon Defendant, International Brotherhood of Teamsters, Chauffeurs and Warehousemen, Local 390's Motion for Summary Judgment ( D.E. 32), filed on May 8, 2003, and Defendant, Roadway Express, Inc.'s Motion for Summary Judgment ( D.E. 33), filed on May 8, 2003. The undersigned, having considered the Motions, the responses thereto, the pertinent portions of the record, and being otherwise fully advised in the premises, finds summary judgment is inappropriate in this case.
I. Background
Defendant, Roadway Express, Inc. ("Roadway") is a motor carrier engaged in the business of transporting freight. Amended Complaint, ¶ 4; Defendant Roadway Express, Inc.'s Answer to Plaintiff's Complaint ("Roadway's Answer"), ¶ 4. Roadway operates a facility located in Miami, Florida. Amended Complaint, ¶ 6; Roadway's Answer, ¶ 6. Plaintiff, Amadeo Bianchi ("Plaintiff) was employed by Roadway as a driver at Roadway's Miami terminal. Defendant Roadway Express, Inc.'s Statement of Material Facts ("Roadway's Statement of Material Facts"), Exh. 5, Deposition of Amadeo Bianchi ("Bianchi Depo."), pp. 2 4-25. The dock workers and drivers working at Roadway's Miami location are represented by Defendant, International Brotherhood of Teamsters, Chauffeurs, and Warehousemen, Local 390 ("Local 390"). Roadway's Statement of Material Facts, Exh. 1, Deposition of Bud Rowland ("Rowland Depo."), p. 8. The relationship between Roadway and Local 390 is governed by a collective bargaining agreement titled the National Master Freight Agreement and the Southern Region Area Over-The-Road Motor Freight Supplemental Agreement ("CBA"). Roadway's Statement of Material Facts, Exh. 2., CBA.
The CBA contains a multi-level grievance process for resolving disputes arising under the CBA. The first step of the grievance process is a local meeting at the terminal between company managers and local union representatives. Bianchi Depo., pp. 87-88; Roadway's Statement of Material Facts, Deposition of Don Marr ("Marr Depo."), pp. 25, 27. If resolution of the grievance is not reached at the local level, Local 390 then decides whether to pursue the grievance further. Marr Depo., pp. 30-31. If Local 390 decides that the grievance has merit, the grievance is taken to the Southern Multi-State Grievance Committee. Bianchi Depo., p. 89; Marr Depo., pp. 25, 30. The Southern Multi-State Grievance Committee is a joint labor-management committee composed of an equal number of union and management representatives. Mapp Depo., at p. 32. Majority decisions by panels of the Southern Multi-State Grievance Committee are final and binding. Id. at p. 25. If the Southern Multi-State Grievance Committee deadlocks, the grievance would proceed to the area committee, and then ultimately to an arbitrator. Id.
Local 390 is also subject to a federal consent decree entered into between the International Brotherhood of Teamsters, Chauffeurs and Warehousemen ("IBT") — Local 390's international union — and the United States Department of Justice, in United States v. International Brotherhood of Teamsters, 905 F.2d 610 (2d Cir. 1990). Roadway's Statement of Material Facts, Exh. 6, Consent Decree Between IBT and the United States ("Consent Decree"), pp. 1-2. The Office of Election Administrator was created by the consent decree to supervise the 2001 IBT election and to enforce the 2000-2001 IBT Election Rules, which prohibit retaliation against union members based on intra-union political activities. Id.; Roadway's Statement of Material Facts, Exh. 9, Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Election Rules"). Decisions of the Election Administrator are appealable under the Election Rules to the Election Appeals Master, another position created by the consent decree. Election Rules, at p. 63.
Plaintiff was discharged from Roadway for assisting rank-and-flle member Isaah "Gerome" Daniels ("Daniels") in filing a fraudulent workers compensation claim for anon-work-related injury. Bianchi Depo., p. 120. Plaintiff and Daniels were both discharged on October 30, 2001 for the submission of a fraudulent injury report by Daniels. Bianchi Depo., p. 120; Roadway's Statement of Material Facts, Exh. 10, Deposition of Isaah Gerome Daniels ("Daniels Depo."), p. 96; Roadway's Statement of Material Facts, Exh. 14, Deposition of Chris Clark ("Clark Depo."), p. 66. Plaintiff was the union steward at the Miami facility and spoke to Daniels regarding Daniels' filing of an injury report, and Plaintiff accompanied Daniels when Daniels submitted his injury report to Roadway. Bianchi Depo., pp. 95-119; Daniels Depo., pp. 81, 82, 87, 91, 162.
The CBA provides that Roadway "shall not discharge, suspend or take any other disciplinary action as respects any employee without just cause." Plaintiff's Statement of Material Facts, Exh. 25, CBA, Article 46, Section 1, p. 181, at p. 4.
Plaintiff and Daniels filed grievances under the CBA regarding their discharges. Daniels Depo., p. 98; Bianchi Depo., p. 128. A local hearing regarding Plaintiffs grievance was held. Bianchi Depo., p. 130. Don Marr ("Marr"), a Local 390 business agent and the Secretary-Treasurer of Local 390, attended the local meeting in support of the Plaintiff. Id. at 130-31. The result of the local grievance hearing was that Roadway representatives decided not to retract Plaintiff's discharge and allowed the issue be heard by the Southern Multi-State Grievance Committee. Id. Daniels' grievance was heard by the Southern Multi-State Grievance Committee on November 13, 2001. Roadway's Statement of Material Facts, Exh. 21, Joint Panel Hearing Record for Isaah Daniels ("Daniels Hearing Record"); Roadway's Statement of Material Facts, Exh. 3, Declaration of Chris Clark ("Clark Decl."), ¶ 7. The panel reinstated Daniels without back pay. Daniels Hearing Record, at p. 26. Bianchi's grievance was heard the following day and was denied by the panel. Bianchi Depo., p. 139; Roadway's Statement of Material Facts, Exh. 22, Joint Panel Hearing Record for Amadeo Bianchi ("Bianchi Hearing Record"), p. 29.
Bianchi then filed an election protest with the Office of the IBT Election Administrator. Bianchi Depo., p. 181; Roadway's Statement of Material Facts, Exh. 23, Amadeo Bianchi Election Protest ("Bianchi Election Protest"). Bianchi claimed that the union members on the joint labor-management panel conspired to deny Bianchi's grievance as a result of Bianchi's support of Tom Leedham for IBT president in the 2001 IBT election. Bianchi Election Protest, p. 4. The Election Administrator investigated Bianchi's election protest for three and one-half months. Bianchi Depo., p. 183. The investigation included taking witness statements and affidavits from various individuals. Bianchi Depo. pp. 183-84. The Election Administrator found that Bianchi had been retaliated against based upon his political activities. Plaintiff Bianchi's Statement of Material Facts As to Which There is a Genuine Issue to be Tried ("Plaintiffs Statement of Material Facts"), Exh. 21, Decision of Election Administrator, William A. Wertheimer, Jr. ("Decision of Election Administrator"), pp. 25-26.
The Election Administrator's decision was appealed to Kenneth Conboy, the Election Appeals Master for the 2000-2001 election cycle. Bianchi Depo., pp. 181-82. The Election Appeals Master issued a written decision on March 26, 2002, overturning the Election Administrator's ruling and finding that there was no evidence that the union panel members acted out of a political, retaliatory bias against Bianchi. Roadway's Statement of Material Facts, Exh. 24, Decision of Election Appeals Master, Kenneth Conboy ("Decision of Election Appeals Master"), p. 5.
Bianchi now sues Roadway, under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 ("Section 301"), for breach of the CBA, and sues Local 390, under the National Labor Relations Act, 29 U.S.C. § 158 ("NLRA"), for breach of the duty of fair representation. The Amended Complaint alleges breach of the CBA by Roadway at Count I due to Roadway's wrongful termination of Plaintiff without just cause.fn1 In Count II, Plaintiff alleges breach of the duty of fair representation by Local 390 because Local 390, through Don Marr, acted out of bad faith and retaliation in handling Plaintiffs grievance. Plaintiff seeks, under Counts I and II, compensatory damages, including reinstatement with no loss of seniority, full back pay, and full back benefits, damages for emotional pain and suffering, and other damages.
II. Legal Standard
Under Fed.R.Civ.P. 56(c), a motion for summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Supreme Court further explained the movant's burden in Celotex Corp. v. Catrett, 477 U.S. 317 (1986) as follows:
In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.Id. at 322. The Court further stated that "Rule 56(c) therefore requires a non-moving party to go beyond the pleadings and by [its] own affidavits or by the `depositions, answers to interrogatories, and admissions on file' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324.
By its very terms, this standard provides that the mere existence of "some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there will be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). An issue is "material" if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. Anderson, 477 U.S. at 248; Allen v. Tyson Foods, 121 F.3d 642, 646 (11th Cir. 1997). An issue is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. Allen, 121 F.3d at 646. On a motion for summary judgment, the Court must view all the evidence and all factual inferences drawn therefrom in the light most favorable to the non-moving party, and determine whether that evidence could reasonably sustain a jury verdict. Celotex, 477 U.S. at 322-23; Allen, 121 F.3d at 646.
While the burden on the movant is great, the non-moving party has a duty to present affirmative evidence in order to defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 252. A mere "scintilla" of evidence in favor of the non-moving party, or evidence that is "merely colorable" or "not significantly probative" is not enough. Id; see also Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996) (conclusory allegations and conjecture cannot be the basis for denying summary judgment).
III. Analysis
A Finding of Breach of Local 390's Duty of Fair Representation of Bianchi is a Necessary Prerequisite to Bianchi's Contract Claim Against Roadway for Wrongful Termination.Bianchi raises hybrid Section 30 I/fair representation claims against Roadway and Local 390. Plaintiff and Defendants acknowledge that an employee's hybrid claims against his employer under Section 301, and against his union under the NLRA, are interdependent. In order to prevail, the employee must satisfy his burden of proving both a breach of the terms of the collective bargaining agreement by the employerand a breach of the union's duty of fair representation. See DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 164-65 (1983); Coppage v. U.S. Postal Service, 281 F.3d 1200, 1204 (11th Cir. 2002); Parker v. Connors Steel Co., 855 F.2d 1510, 1519 (11th Cir. 1988). Therefore, a Section 301 claim against the employer fails upon a finding that the union did not breach its duty of fair representation of the employee. Parker, 855 F.2d at 1521; Smith v. Babcock Wilcox Co., Refractories Division, Augusta, Georgia, et al, 726 F.2d 1562,1564 (11th Cir. 1984) ("The indispensable predicate for a § 301 action, therefore, is a showing that the union has breached its statutory duty of fair representation."). Accordingly, if there is no genuine issue of material fact in dispute and Local 390 is entitled to judgment as a matter of law on the breach of duty of fair representation claim, then the breach of contract claim against Roadway also fails as a matter of law.
Bianchi's Duty of Fair Representation Claim is Not Barred By the Doctrine of Collateral Estoppel.
Roadway argues that the decision of the Election Appeals Master, Kenneth Conboy, should be given preclusive effect under the principles of collateral estoppel. Defendant Roadway Express, Inc.'s Brief in Support of its Motion for Summary Judgment, pp. 12-13. Plaintiffs fair representation action against Local 390 is based on his claim that his grievance was denied because of his intra-union political activities. Admittedly, the election protest that Bianchi chose to file under the consent decree consisted of the same allegations. The Election Appeals Master rejected these allegations on the basis that there was "no evidence" of political retaliation against Bianchi by the union. Decision of Election Appeals Master, p. 5. Plaintiff maintains that collateral estoppel does not apply here because a union election protest proceeding brought pursuant to a consent decree is significantly different in nature and purpose from this suit brought under Section 301 and the NLRA to enforce an employee's uniquely personal rights under federal labor law. Plaintiffs Combined Response to Motions for Summary Judgment, pp. 3-7.
Existing case law discusses the collateral estoppel effect ofarbitration proceedings on federal civil rights and federal employment law actions where the arbitrators' powers were limited to the enforcement of a collective bargaining agreement. For example, in Alexander v. Garner-Denver Co., 415 U.S. 36 (1974), a case cited by the Plaintiff, the Supreme Court dealt with the "proper relationship between federal courts and the grievance-arbitration machinery of collective-bargaining agreements in the resolution and enforcement of an individual's rights to equal employment opportunities under Title VII of the Civil Rights Act of 1964." Id. at 38. In reaching its conclusion that an employee's statutory right to trial under equal employment opportunity provisions of the Civil Rights Act was not foreclosed by the employee's prior submission of his claim of racially discriminatory discharge to arbitration under the collective bargaining agreement, the Supreme Court stated:
As the proctor of the bargain, the arbitrator's task is to effectuate the intent of the parties. His source of authority is the collective-bargaining agreement, and he must interpret and apply that agreement in accordance with the `industrial common law of the shop' and the various needs and desires of the parties. The arbitrator, however, has no general authority to invoke the public laws that conflict with the bargain between the parties. If an arbitral decision is based `solely upon the arbitrator's view of the requirements of enacted legislation' rather than on an interpretation of the collective-bargaining agreement, the arbitrator has `exceeded the scope of the submission,' and the award will not be enforced. . . . Thus, the arbitrator has authority to resolve only questions of contractual rights that are similar to, or duplicative of the substantive rights secured by Title VII.Id. at 52-54.
In another Supreme Court case, McDonald v. City of Branch, 466 U.S. 284 (1984), the Supreme Court held that a federal court could not bar a civil rights action brought under 42 US.C § 1983 by affording res judicata or collateral estoppel effect to an award in an arbitration proceeding brought pursuant to the terms of a collective bargaining agreement because of the important federal statutory and constitutional rights that a section 1983 action is designed to safeguard. Id. at 289-90; see also Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 223 (1985) (noting that "it is far from certain that arbitration proceedings will have any preclusive effect on the litigation of nonarbitrable federal claims," and instructing that in framing preclusion rules in this context, courts shall take into account the "federal interests warranting protection"); Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 737 (1981) (arbitration award did not preclude a suit based on a violation of the minimum wage provisions of the Far Labor Standards Act because this is a claim "based on rights arising out of a statute designed to provided minimum substantive guarantees to individual workers"); Gurra v. Manchester Terminal Corporation, 498 F.2d 641, 657 n. 44 (5thCir. 1974) (neither arbitration under a collective bargaining agreement nor a settlement reached under a state scheme has res judicata or collateral estoppel consequences for an employment discrimination suit brought under Title VII of the Civil Rights Act of 1964); Kidder v. Eastern Air Lines, Inc., 469 F. Supp. 1060, 1064-65 (S.D. Fla. 1978) (even if employee, who alleged a violation of the Veteran's Reemployment Rights Act, had received an unfavorable ruling in arbitration, his right to proceed in federal district court would not have been extinguished, for the federal courts are the exclusive forum for the vindication of "these distinctively federal rights"). Some of the considerations supporting the Supreme Court's conclusion in McDonald were that an arbitrator may not have the expertise or authority properly to resolve the complex legal questions that arise in § 1983 actions, may not have the authority to enforce § 1983 because the arbitrator's authority derives solely from the contract, and informal arbitrable fact finding is generally not procedurally equivalent to judicial finding. 466 U.S. at 289-91 (citing Alexander, 415 U.S. at 57-58 ("[t]he record of the arbitration proceedings is not as complete; the usual rules of evidence do not apply; and rights and procedures common to civil trials, such as discovery, compulsory process, cross-examination, discovery, and testimony under oath, are often severely limited or unavailable"). Furthermore, in McDonald, the Supreme Court noted that its decisions in the Alexander and Barrantine cases
were based in large part on our conclusion that Congress intended the statutes at issue in those cases to be judicially enforceable and that arbitration could not provide an adequate substitute for judicial proceedings in adjudicating claims under those statutes.Id. at 289. Accordingly, in McDonald, the Court found that it was required, based on the same considerations, to find that the doctrine of collateral estoppel was inapplicable in a § 1983 action "[b]ecause § 1983 creates a cause of action," and thus, there is "no question that Congress intended it to be judicially enforceable." Id. at 289-90.
Here, too, the Supreme Court has held that Congress intended to provide a private cause of action for breach of the duty of fair representation under the NLRA, and thus the cause of action is implied under the statute. See Karahalios v. National Federation of Federal Employees, Local 1263, 489 U.S. 527, 528 (1989) (citing Vaca v. Sipes, 386 U.S. 171, 177 (1967)).
Admittedly, in the only Eleventh Circuit opinion addressing this issue, the Court held that "[a]n arbitration decision can have res judicata or collateral estoppel effect, even if the underlying claim involves the federal securities laws." Greenblatt v. Drexel Burnham Lambert, Inc., 763 F.2d 1352, 1360 (11th Cir. 1985). The Court noted, however:
The Byrd and McDonald cases indicate that, at least with respect to an important, nonarbitrable federal claim, a federal court should be hesitant to preclude the litigation of the federal claim based on the collateral estoppel effects of a prior arbitration award. These cases indicate a case-by-case approach to determining the collateral estoppel effects of arbitration on federal claims, focusing on the federal interests in insuring a federal court determination of the federal claim, the expertise of the arbitrator and his scope of authority under the arbitration agreement, and the procedural adequacy of the arbitration proceeding.Id. at 1361, Because a RICO claim is "unusual" in that it must be based on underlying, independently unlawful acts, and because of the procedural adequacy of the arbitration proceeding, the factual findings necessary to support the arbitration award in Greenblalt were given collateral estoppel effect in the RICO suit before the Court. Id.
The consent decree under which Bianchi brought his election protest proceeding provides that such hearings "shall be conducted under the rules and procedures generally applicable to labor arbitration hearings" Consent Decree, p. 5 (emphasis added). Given that the very terms of the consent decree liken Bianchi's election protest proceeding to an arbitration, the undersigned finds unpersuasive Defendants' arguments that the Alexander and McDonald line of cases do not apply because these cases discussed the collateral estoppel effects of arbitration proceedings on lawsuits brought to enforce federal rights. It is the finding of this Court that the determination of whether Local 390 violated its duty of fair representation — a question implicating an individual union member's rights under federal law — was not within the scope of the consent decree or the Election Administrator's or Election Appeal Master's expertise, and thus, the findings of fact made by the Election Appeals Master should not be given collateral estoppel effect in this case. The rights enforced by the IBT Election officials were Bianchi's rights as a union member pursuant to the consent decree and the Election Rules adopted pursuant to that decree, essentially the right not be retaliated against by a union based on political activity in union elections. The rights at issue in this case, although the factual underpinnings overlap, involve much more than protection of political activity and the sanctity of union elections. The Election Appeals Master's authority was limited to resolving only questions of Bianchi's contractual rights under the consent decree and the Election Rules, and this remains true whether or not these contractual rights may have been similar to, or duplicative of, the substantive rights secured by Section 301 and the NLRA. See Alexander, 415 U.S. at 52-54.
It is important to note, however, that the Supreme Court has adopted "no standards as to the weight to be accorded an arbitral decision, since this must be determined in the court's discretion with regard to the facts and circumstances of each case." Alexander, 415 U.S. at 60; McDonald, 466 U.S. at 292 n. 13. In other words, although an arbitration decision is not accorded collateral estoppel effect, arbitration decisions may be admitted as evidence in a suit to enforce important federal statutory rights. Id.
According preclusive effect to the election protest proceeding in an action brought under the NLRA would severely undermine the protection of federal rights that the statute is designed to provide. Therefore, summary judgment is inappropriate on collateral estoppel grounds.
There is a Genuine Issue of Material Fact as to Whether Local 390 Breached its Duty of Fair Representation of Bianchi by Acting in Bad Faith.
A review of the record, taken in the light most favorable to the Plaintiff as the non-moving party, reveals that there is a genuine issue for trial as to whether Local 390 acted in bad faith in presenting Bianchi's grievance to the joint labor-management grievance committee. Decisional law supports a finding that the Plaintiff has proferred sufficient evidence to create a genuine issue.
The duty of fair representation requires the union "to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct" Vaca v. Sipes, 386 U.S. 171, 177 (1967). "A breach of the statutory duty of fair representation occurs only when a union's conduct towards a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith" Vaca, 386 U.S. at 190; see Harris v. Schwerman Trucking Co., 668 F.2d 1204, 1206 (11th) Cir. 1982). As the language of Vaca implies, and as the Supreme Court explained in Air Line Pilots Ass'n Int `l v. O'Neill, 499 U.S. 65, 75 (1991), the standard is a "tripartite" one, such that "a union breaches its duty of fair representation if its actions are either `arbitrary, discriminatory, or in bad faith.'" Id. at 67 (emphasis added). In other words, a plaintiff need only show that the union's actions could be characterized in any one of these three ways. Higdon v. United Steel Workers of America, 706 F.2d 1561, 1563 (11th Cir. 1983). In addition to showing that the union's handling of the grievance was arbitrary, discriminatory or in bad faith, the plaintiff bringing a breach of duty of fair representation claim must also prove that the grievance process was "seriously flawed by the union's breach of its duty to represent employees honestly and in good faith and without invidious discrimination or arbitrary conduct." Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570 (1976).
The test for determining whether a plaintiff has shown "bad faith" is whether the plaintiff presents evidence of any fraudulent, deceitful or dishonest action taken by the union in representing the employee's interests. See e.g., Sint v. New York Mailer's Union Number 6, 166 F.3d 465, 472 (2nd Cir. 1999); Wapnowski v. Chevron USA Products Co., l68F.3d 504, 504 (9th Cir. 1999); Smith v. United Parcel Service, Inc., 96 F.3d 1066, 1069 (8th Cir. 1996) ("[t]o defeat summary judgment on the issue of bad faith, [plaintiff] must offer `evidence of fraud, deceitful action or dishonest conduct' by the union"); Mock v. T.G. Y. Stores Co., 971 F.2d 522, 531 (10th Cir. 1992).
Summary judgment is particularly inappropriate in cases involving allegations of bad faith conduct by a union. See Hines v. Local 377, IBT 506 F.2d 1153, 1157 (6th Cir. 1974) (reversing summary judgment order for the union on the grounds that evidence of bad faith on the part of the union was present; noting that "[a] case where questions of good faith or fraud are at issue should not be summarily decided without the taking of testimony unless it is clear that recovery cannot be had on any state of the evidence"); Bannon v. American Air Filter Co., Inc., et al, 1974 WL 1297, *5 (W.D. Ky 1974) ("great caution should be taken in entering a motion for summary judgment in cases where allegations of bad faith are made").
The courts that have granted summary judgment in "bad faith" cases have done so where the plaintiff failed to present any evidence other than conclusory allegations. See e.g., Wapnowski, 168 F.3d at 504 ("the union has not presented evidence of any improper motive on the Union's part"); Dober v. Roadway Express, Inc., 707 F.2d 292, 294 (7th Cir. 1983) (granting summary judgment because "[t]his is not a case . . . [where the] worker is on the outs with the union or is a member of some racial or other minority or is not a union man, [and the union . . . refuses to prosecute the grievance at all or does so in a perfunctory manner by just going through the motions") (emphasis added); Rupe v. Spector Freight Systems, Inc., 679 F.2d 685, 692 (7th Cir. 1982) (no evidence of hostility or animosity between plaintiff and union); Balowski v. International Union, United A., AA Imp. Workers, 372 F.2d 829, 835 (6th Cir. 1967) (granting summary judgment for union where "[n]owhere in the material outside the complaint which was examined by the district court do facts or allegations appear which show or tend to show any improper motive or purposeful discrimination."); Boggess v. Heritage Cadillac, Inc., 687 F. Supp. 417, 423 (N.D. I11. 1988) (plaintiff testified there was no reason why union would be "out to get him"); Bruno v. United Steelworkers of America, AFL-CIO, Local 3571, 456 F. Supp. 425, 428 (D. Conn. 1978) (granting summary judgment where "[there is no indication that plaintiff has a shred of real evidence which would tend to prove that the union acted out of spite, ill will or bad faith, . . . . [and] plaintiff admitted that his allegations of the union's hostility were based on a `feeling' he had"); Wark v. Local 598, United Automobile, Aerospace and Agricultural Implement Workers of America, 1977 WL 15574, *1 (E.D. Mich.) (granting union's motion for summary judgment where plaintiff "does allege bad faith by the bargaining representative but he asserts no reason for the bad faith nor underlying circumstances from which bad faith may be inferred").
Other courts have also found that a genuine issue as to "bad faith" exists, precluding summary judgment, where the plaintiff employee presents evidence, rather than mere conclusory allegations, of the union's personal or politically-based hostility towards him, whichmay have motivated the union's handling of the employee's grievance. See e.g., Ooley v. Schwitzer Division, et al, 961 F.2d 1293, 1303 (7th Cir. 1992) (affidavit by employees' former attorney recapping conversation in which union attorney indicated that union dropped plaintiff's. claim to protect itself from liability was sufficient evidence to raise issue as to whether union acted in bad faith by putting its personal interests above the plaintiff's); Thomas v. United Parcel Service, Inc., 890 F.2d 909, 923-24 (7th Cir. 1989) (issue of material fact existed as to whether union breached its duty of fair representation by intentionally undermining employee's grievances due to employee's political allegiances within union, precluding summary judgment on fair representation claim); Lapir v. Maimonides Medical Center, 750 F. Supp. 1171, 1179 (E.D. N.Y. 1990) (hostility, personal animosity, malice or racial animus on the part of a union may constitute a breach of the duty of fair representation, precluding summary judgment); Cottrell v. Candy Workers Union, Local 342 of the Bakery, Confectionery and Tobacco Workers International Union AFL-CIO-CLC, 630 F. Supp. 1081, 1085-86 (C.D. I11. 1986) (denying summary judgment for union where plaintiff presented evidence that the international union's vice president held personal animus towards him); Gingras v. General Electric Co., 476 F. Supp. 644, 648-49 (E.D. Pa. 1979) (substantial fact issue existed as to whether union's conduct was fair and impartial or alternatively was motivated by personal animosity or political favoritism, precluding summary judgment for union).
Bianchi claims that he has submitted sufficient evidence "to call into question the good faith and sincerity of Marr's representation of Bianchi during the grievance process, as it clearly demonstrates politically based as well as personal acrimony between Marr and Bianchi" Plaintiffs Combined Response to Motions for Summary Judgment, p. 9; see also Amended Complaint, ¶ 31 ("[Local 390] engaged in the acts and conduct against Plaintiff in bad faith, with malice and/or with reckless indifference to Plaintiff's rights to have his grievances fairly and objectively processed by his exclusive bargaining representative, which instead acted out of bad faith and retaliation because of the fact that Plaintiff Bianchi was not in [Local 390's] political camp."). In other words, Bianchi is relying primarily on the "bad faith" theory of relief against Local 390. A review of the record reveals that Bianchi has submitted admissible evidence of a fraudulent, deceitful, or dishonest action to support his claim that Local 390 acted in bad faith.
The following evidence may support a finding, or it may be inferred from such evidence, that the relationship between Don Marr, business agent of Local 390, and the Plaintiff was characterized by enmity and ill will:
(1) Marr was abusive to Bianchi, and told Bianchi that he (Marr) did not like him (Bianchi) (Plaintiffs Statement of Material Facts, Exh. 5, Bianchi Depo., p. 45);
(2) at union meetings, Marr would stare at Bianchi with a "mean face" (Plaintiffs Statement of Material Facts, Exh. 5, Bianchi Depo., p. 46);
(3) Marr would say to Bianchi that "Bianchi's no good and shouldn't be running" (Plaintiffs Statement of Material Facts, Exh. 5, Bianchi Depo., p. 45); and
(4) John Chase has "personally observed on several occasions when Don Marr would intentionally do anything he could do make Amadeo Bianchi look bad, interfere with his job as a union steward" (Plaintiffs Statement of Material Facts, Exh. 17, Affidavit of John Chase ("Chase Aff"), ¶ 5).
In his deposition testimony, Marr denies swearing at Bianchi or having any altercations with Bianchi (Plaintiffs Statement of Material Facts, Exh. 15, Marr Depo., pp. 40, 58); indeed, Marr denies that there was any animosity between them (Id. at pp. 59, 108).
Plaintiff has done more than make conclusory assertions or speculate about Don Marr's and Local 390's hostility towards Plaintiff; he has submitted specific facts in his own deposition testimony, as well as the deposition of Gerome Daniels, and the affidavit of John Chase, evidencing such hostility.
Moreover, the record contains the following evidence suggesting a political motive behind the animosity between Local 390, and in particular, Don Marr, and the Plaintiff:
(1) Marr supported James Hoffa, Jr., who ultimately won the election for IBT president in the 2001 election, while Bianchi supported Hoffa's opposition, Tom Leedham (Plaintiffs Statement of Material Facts, Exh. 5, Bianchi Depo., pp. 105-06; Exh. 15, Marr Depo., p. 54);
(2) Bianchi was a member of a dissident group within the union called Teamsters for a Democratic Union (Plaintiffs Statement of Material Facts, Exh. 5., Bianchi Depo., pp. 105-06; Exh. 15, Marr Depo., pp. 54-59);
(3) Marr had tried to persuade Bianchi to campaign for Hoffa, but Bianchi refused; in fact, on one occasion when Marr offered Bianchi a Hoffa sticker to put on his car, Bianchi told Marr to "[s]hove it" (Plaintiffs Statement of Material Facts, Exh. 5, Bianchi Depo., pp. 105-06);
(4) Marr had previously run against Bianchi for president of Local 390 (Plaintiffs Statement of Material Facts, Exh. 5, Bianchi Depo., p. 72; Exh. 15, Marr Depo., pp. 10-11, 40, 58-59);
(5) Marr and Bianchi ran on opposing slates in three different Local 390 elections (Plaintiffs Statement of Material Facts, Exh, 15, Marr Depo., pp. 46-47);
(5) during a Local 390 election, while Bianchi and his supporters were standing outside the union hall waiting for voters to come in, Marr made fun of them, took palm cards out of voter's hands, and threw them in the garbage (Plaintiffs Statement of Material Facts, Exh. 5, Bianchi Depo. p. 46);
(6) Marr filed an election protest against Bianchi during the 2001 IBT presidential election, alleging that Bianchi was campaigning for Leedham in a Consolidated Freight (a Roadway competitor) lunchroom and that such action was against the election rules; the protest against Bianchi was ultimately denied when the election officials learned that Marr had been campaigning for Hoffa in the same lunchroom (Plaintiffs Statement of Material Facts, Exh. 5, Bianchi Depo., pp. 105-06; Exh. 15, Marr Depo., p. 53; Exh. 21, Decision of Election Administrator, pp. 13-14; Exh. 23, Decision of Election Appeals Master, p. 4);
(7) during a Local 390 election, while Bianchi was campaigning outside of Marr's workplace, Marr and his friends yelled obscenities at Bianchi and yelled at Bianchi to get out of there because that was the opposition's "country" (Plaintiffs Statement of Material Facts, Exh. 5, Bianchi Depo., p. 47);
(8) Marr told Bianchi that Bianchi should quit running for office because he (Bianchi) was wasting union funds (Plaintiffs Statement of Material Facts, Exh. 16, Affidavit of Amadeo Bianchi ("Bianchi Aff"), ¶ 3); and
(9) John Chase "personally observed" Marr "speak negatively about him [Bianchi] because of his political views" (Plaintiffs Statement of Material Facts, Exh. 17, Chase Aff., § 5).
Finally, the Plaintiff has presented evidence that would suggest that Local 390's actions and inactions affected the Plaintiffs grievance proceeding in an adverse way such that the result might have been otherwise favorable to Bianchi but for the union's conduct:
(1) Marr was the Local 390 representative that represented Bianchi at Bianchi's grievance hearing (Plaintiffs Statement of Material Facts, Exh. 5, Bianchi Depo., p. 157; Exh. 19, Bianchi Hearing Record, p. 8);
(2) Marr told Tom Gurr, Terminal Manager at Consolidated Freight, that he (Marr) could not make a scheduled meeting because he (Marr) had to "go over to Roadway in Miami to go through the motions of getting that mother f-cker Bianchi his job back" (Plaintiffs Statement of Material Facts, Exh. 17, Chase Aff., ¶¶ 2-4);
(3) immediately before Gerome Daniels' grievance hearing, at which Marr represented Daniels (Plaintiffs Statement of Material Facts, Exh. 3, Daniels Depo., pp. 140-141; Exh. 18, Daniels Hearing Record), Chris Clark told Daniels to "just get out of the middle of it," and Daniels understood this to mean that if he (Daniels) told them (Roadway and Local 390) what they wanted to hear (that Bianchi was responsible for the wrong dates on Daniels' injury report), Roadway and the union would take care of Daniels by giving him his job back, without a hearing, and firing Bianchi (Id.);
(4) when Daniels told Marr, Chris Clark and Wilbur Williams, Roadway's labor relations manager (Plaintiffs Statement of Material Facts, Exh. 14, Williams Depo., p. 21), that Bianchi had nothing to do with the wrong dates on Daniels' injury report, Marr told Daniels that Daniels had "pissed off Williams and "now we got to go here in the committee"; Daniels understood this to mean that because Daniels did not say what Williams, Marr and Clark wanted to hear. Roadway and Local 390 went forward with Daniels' grievance hearing (Plaintiff's Statement of Material Facts, Exh. 3., Daniels Depo., p. 142);
(5) the investigation of Marr's election protest against Bianchi by election officials, including repeated questioning of Marr, occurred in the same week that Bianchi was discharged and his grievance was denied at the local meeting step of the grievance procedure (Plaintiffs Statement of Material Facts, Exh 21, Decision of Election Administrator, p. 14); and
(6) Daniels' grievance was ultimately upheld by the joint labor-management grievance committee, and Daniels was reinstated at Roadway, while Bianchi's grievance was denied and his discharge from Roadway upheld (Plaintiffs Statement of Material Facts, Exh. 18, Daniels Hearing Record, p. 26; Exh. 19, Bianchi Hearing Record, p. 29).
Marr denies that he made this statement to Tom Gurr (Plaintiff's Statement of Material Facts, Exh. 15, Marr Depo., p. 142).
Marr has denied that he made any statements to Daniels suggesting that Daniels "get out of the middle of it" by testifying that Bianchi told him to file a false injury report (Plaintiffs Statement of Material Facts, Exh. 15, Marr Depo., p. 149).
The undersigned's conclusion that the foregoing evidence creates a genuine issue of fact for a jury is supported by the fact that the IBT Elections Administrator who initially conducted an investigation of Bianchi's retaliation claims against Local 390, which included the taking of depositions of Marr and the union members on Bianchi's grievance panel, among others (Plaintiffs Statement of Material Facts, Exh. 21, Decision of Election Administrator, passim), granted Bianchi's grievance. If the Elections Administrator could reach the result he did after a review of the evidence before him, a reasonable jury could evaluate the same evidence and also find that personal and political animus greatly influenced the course and outcome of Bianchi's grievance hearing. Although the undersigned has concluded that collateral estoppel effect cannot be given to an IBT Election official's decision in a Section 301/NLRA lawsuit, this does not make the decision of that official unreasonable. See supra note 1.
The evidence is adequate to refute Local 390's and Roadway's suggestion that no material facts are in issue. It is well established that, on motions for judgment as a matter of law, if there is "evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. . . . It is the function of the jury as the traditional finder of facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses." Watts v. Great Atl Pac. Tea Co., 842 F.2d 307, 309-10 (11th Cir. 1988) (per curiam) (citations omitted) (emphasis added).
In accordance with Fed.R.Civ.P. 56(c), there are genuine issues of material fact as to whether Local 390 acted in bad faith in handling Bianchi's grievance and as to whether this bad faith had a substantial impact on the grievance committee's decision to uphold Bianchi's discharge from Roadway; therefore, summary judgment is inappropriate in this case. It is not necessary for the Court to determine whether Local 390 acted in an "arbitrary" or "discriminatory" manner.
The Court Need Not Determine Whether There is a Genuine Issue of Material Fact as to Whether Roadway Wrongfully Terminated Bianchi Without Cause in Violation of the Collective Bargaining Agreement.As previously noted, in hybrid Section 301/fair representation cases where the employee brings claims against both his employer and his union, in order to prevail against either the employer or the union, the employee must prove both that the employer violated the terms of the collective bargaining agreement and that the union violated its duty of fair representation. DelCostello, 462 U.S. at 164-65; Parker, 855 F.2d at 1519. Here, there is a genuine issue of material fact for a jury as to whether Local 390 breached its duty of fair representation of Bianchi, and therefore, summary judgment is inappropriate as to both Local 390 and Roadway.
In its motion for summary judgment, Roadway does not claim that if Local 390 breached its duty of fair representation of Bianchi, Roadway nevertheless discharged Bianchi for just cause.
IV Conclusion
For all of the foregoing reasons, it is ORDERED AND ADJUDGED that Defendants, Roadway Express, Inc.'s and Local 390's Motions for Summary Judgment ( D.E. 32, 33) are hereby DENIED. DONE AND ORDERED in Chambers at Miami, Florida, this 21st day of July, 2003.