MARY GORDON BAKER, Magistrate Judge.
The Plaintiff, proceeding pro se,
Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate for consideration.
The Plaintiff brought the instant action on or about January 26, 2015. (See generally Dkt. No. 1.) Defendant Local 776 filed an Answer on May 4, 2015; Defendant Allison-Smith filed an Answer on May 6, 2015. (See Dkt. No. 12; Dkt. No. 17.) On June 8, 2015, Defendant Allison-Smith filed a Motion for Judgment on the Pleadings. (Dkt. No. 23; see also Dkt. No. 24.) Plaintiff filed a Response in Opposition to Allison-Smith's Motion for Judgment on the Pleadings on or about July 13, 2015, to which Defendant Allison-Smith filed a Reply. (Dkt. No. 37; Dkt. No. 44.) On August 19, 2015, Defendant Allison-Smith filed a Motion to Exclude the Affidavit of Edward Bonaldi and Accompanying Exhibits; Plaintiff has not responded to that motion. (Dkt. No. 47.)
The instant action arises out of Plaintiff's employment at projects in Moncks Corner and North Charleston. (See generally Dkt. No. 1.) Plaintiff alleges that on March 1, 2014, Defendant Allison-Smith and the Local 776 "entered into the Inside Construction Agreement," also referred to as the "collective bargaining agreement, and the Small Works Addendum" to the collective bargaining agreement, which covered employees including Plaintiff. (Compl. ¶ 5.)
(Compl. ¶¶ 6-7.) Plaintiff alleges that, pursuant to the terms of the collective bargaining agreement and small works addendum, "the defendant employer could not discharge him from his employment without proper cause." (Compl. ¶ 11; see also Compl. ¶¶ 9-10.)
Plaintiff alleges that, in breach of the collective bargaining agreement and small works addendum, he was terminated "without proper cause." (See Compl. ¶ 37.) While Defendant Allison-Smith contends Plaintiff was laid off with eligibility for rehire, Plaintiff asserts the "so called lay off was not a lay off at all, and was a mere pre-text for termination without proper cause." (Id.) Plaintiff alleges the "real reasons" he was laid off were as follows:
(Compl. ¶ 38.) Plaintiff alleges that these two reasons "are not proper causes for termination as [Plaintiff] was only following the policies and procedures he was instructed to abide by and to raise attention to should he observe them being violated." (Id.) Plaintiff details several allegations which he contends "support[s] . . . his argument that the lay off . . . was not a real lay off but a pretext for his termination without proper cause." (See Compl. ¶ 40.)
In the "unfair representation" count of his Complaint, alleges the Local 776 violated its duty of "fair representation." (Compl. ¶¶ 41-48.) Plaintiff alleges that he "and his Local Business Manager, Chuck Moore, have a past wherein Mr. Moore acted in an unbrotherly manner" towards Plaintiff. (Id. ¶ 42.) Plaintiff details several allegations which he contends "support his position that Local 776 . . . violated their duty of fair representation." (Id. ¶ 43.) In addition to the "act . . . relate[d] to the handling of his grievance, Plaintiff contends that Mr. Moore was complicit and actually assisted Allison-Smith in violating his rights under the collective bargaining agreement." (Id. ¶ 44.) Plaintiff "contends the Local [776] is equally liable to him for his lost wages and benefits" due to the Local 776's "actions or lack thereof." (Id. ¶ 47.)
Plaintiff alleges that Defendant Allison-Smith is liable to him "for breach of the collective bargaining agreement" and that Defendant Local 776 is liable to him "for unfair representation." (See Compl. at 18 of 19.) Plaintiff seeks damages for "lost wages and benefits, together with post judgment interest, jointly and severally against" Allison-Smith and the Local 776. (Id.)
As noted above, Plaintiff brings a claim for breach of a collective bargaining agreement against Defendant Allison-Smith. The pending motions are addressed below.
Rule 12(c) of the Federal Rules of Civil Procedure provides that "[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." FED. R. CIV. P. 12(c). A motion for judgment on the pleadings pursuant to Rule 12(c) is analyzed under the same standard as a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Burbach Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002) (citations omitted). The court assumes the facts alleged in the complaint are true and will draw all reasonable inferences in Plaintiff's favor as the nonmoving party. Id. at 406 (citation omitted). However, the court must determine whether it is plausible that the factual allegations in the complaint are `enough to raise a right to relief above the speculative level.'" Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "A plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). While the court must draw all reasonable inferences in favor of the plaintiff, it need not accept the "legal conclusions drawn from the facts, . . . unwarranted inferences, unreasonable conclusions or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Giarratano v. Johnson, 521 F.3d 298 (4th Cir. 2008)).
Defendant Allison-Smith seeks judgment on the pleadings, asserting that in order to prevail, Plaintiff must prove "both 1) that the union breached its duty of fair representation and 2) that his employer violated the collective bargaining agreement." (Dkt. No. 23-1 at 7.) According to Allison-Smith, Plaintiff's Complaint "does not state a plausible claim for the Union's breach of the Duty of Fair Representation because the acts he alleges were not arbitrary, discriminatory, or in bad faith, nor did they contribute to an erroneous outcome." (Dkt. No. 23-1 at 7.) Additionally, Allison-Smith asserts that Plaintiff's Complaint "does not state a plausible claim for breach of the Collective Bargaining Agreement because he admits that it places `no restrictions' on Allison Smith's discretion to terminate." (Dkt. No. 23-1 at 12.)
"It has long been established that an individual employee may bring suit against his employer for breach of a collective bargaining agreement." DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 163 (1983) (citing Smith v. Evening News Ass'n, 371 U.S. 195 (1962)). The Court in DelCostello further explained,
DelCostello, 462 U.S. at 163-65 (citations and internal quotation marks omitted); see also Vaca v. Sipes, 386 U.S. 171 (1967); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976). In order for Plaintiff's Complaint to state a claim against Defendant Allison-Smith, Plaintiff must allege both "that the employer's action violated the terms of the collective-bargaining agreement and that the union breached its duty of fair representation." Chauffers, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 564 (1990) (citing DelCostello, 462 U.S. at 164-65); see also Thompson v. Aluminum Co. of Am., 276 F.3d 651, 656 (4th Cir. 2002) ("Though both claims are brought in one suit, a cause of action `will only lie against an employer if the union has breached its duty of fair representation of the employee.'" (quoting Amburgey v. Consolidation Coal Co., 923 F.2d 27, 29 (4th Cir. 1991))). Accordingly, the question for this Court is whether Plaintiff's Complaint states a claim for both. See Thompson, 276 F.3d at 657 ("[The plaintiff's] claims against the Union and Alcoa are `interlocked: neither claim is viable if the other fails.'" (quoting Crider v. Spectrulite Consortium, Inc., 130 F.3d 1238, 1241 (7th Cir. 1997))).
As the Fourth Circuit noted in Thompson,
Thompson, 276 F.3d at 657 (quoting Vaca, 386 U.S. at 177). A breach of the duty of fair representation "occurs `only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.'" United Steelworkers of Am., AFL-CIO-CLC v. Rawson, 495 U.S. 362, 372 (1990) (quoting Vaca, 386 U.S. at 190). "[M]ere negligence, even in the enforcement of a collective-bargaining agreement," does not state a claim for breach of the duty of fair representation. Id. at 372-73. As the Fourth Circuit in Thompson explained,
Thompson, 276 F.3d at 657-58 (citations omitted). In addition to alleging that "the union handled his grievance perfunctorily or in bad faith," a plaintiff must also allege "that `there is substantial reason to believe that a union breach of duty contributed to an erroneous outcome in the contractual proceedings.'" Ash v. United Parcel Serv., Inc., 800 F.2d 409, 411 (4th Cir. 1986) (quoting Hardee v. N.C. Allstate Servs., Inc., 537 F.2d 1255, 1258 (4th Cir. 1976)).
As noted above, Allison-Smith asserts Plaintiff "does not state a plausible claim for the Union's breach of the Duty of Fair Representation because the acts he alleges were not arbitrary, discriminatory, or in bad faith, nor did they contribute to an erroneous outcome." (Dkt. No. 23-1 at 7.) To evaluate that argument, the undersigned examines Plaintiff's allegations. Plaintiff alleges, inter alia, that on July 24, 2014, he arrived at work at the MNK Project at 7:00 A.M. and received an assignment from the foreman. (Compl. ¶¶ 24, 12.) Plaintiff states that at 9:25 A.M., the foreman came to see Plaintiff and told Plaintiff "he had to take him to see the union steward." (Compl. ¶ 24.) When Plaintiff met with the union steward, the union steward "informed Plaintiff that he was being laid off" and handed Plaintiff "a Notice of Termination which indicated `Lay Off due to Job Completed and Reduction in Force' and that [Plaintiff] was eligible for rehire." (Id.) According to Plaintiff, this procedure was "odd and not industry standard as most legitimate layoffs occur at the end of the day, the work they were performing was not completed, and [Plaintiff] was not allowed to tag out of his lock box." (Compl. ¶ 25.) Plaintiff alleges that when he asked if he was the only one being laid off, the union steward lied and said, "Oh no, I have to come back and get a bunch more." (Compl. ¶ 25.) According to Plaintiff, however, "no one else was laid off that day." (Id.)
Plaintiff alleges that he then called the Local 776's Office Manager "and asked her if there were any calls left in the hall," and she indicated that "there were 2 calls, including one for the MNK Project for the same position he had just been laid off from." (Compl. ¶ 26.) Plaintiff states that he told the Office Manager to "hold that referral and he would come in to the hall to take it." (Id.) Plaintiff further alleges,
(Compl. ¶¶ 27-28.)
Plaintiff alleges that he then "accepted another call in the hall with Allison-Smith at the CIA Trip Project." (Id. ¶ 29.) Plaintiff arrived at the CIA Trip Project at approximately 6:20 A.M. on July 28, 2014. (Id. ¶ 30.) However, shortly after 6:45 A.M., when "someone arrived to unlock the door to Allison-Smith's trailer," Plaintiff "was asked to step outside and was handed another Notice of Termination which indicated he was being laid off due to `Job Completion' and was again eligible for rehire." (Id.) Plaintiff alleges he was handed a check. (Id.)
According to Plaintiff, he returned to the hall and asked to speak with Moore but was advised that Moore was out of town. (Id. ¶ 31.) Plaintiff alleges that he "checked the referrals in the hall and there was still one for the MNK Project with Allison-Smith." (Id.) Plaintiff then had his attorney send an email to Mr. Moore indicating Plaintiff's desire to file a grievance. (Id. ¶ 32.) Plaintiff further alleges that he called the night recorder on July 30, 2014, and "learned there were 18 calls for the MNK Project for the same position he had held." (Id. ¶ 33.) On July 31, 2014, Plaintiff asked the Office Manager to "submit his credentials again to Allison-Smith," but Plaintiff asserts she called back shortly thereafter and "informed [Plaintiff] that [Allison-Smith] had again rejected him." (Id.) Plaintiff alleges he "had been blacklisted" and looked for work elsewhere. (Id.)
In addition to alleging that Moore "acted in an unbrotherly manner" towards Plaintiff, (see Compl. ¶ 42), Plaintiff alleges the following "in support of his position that Local 776 has violated their duty of fair representation":
(Compl. ¶ 43.) Additionally, Plaintiff alleges that Moore "was complicit and actually assisted Allison-Smith in violating his rights under the collective bargaining agreement by failing to refer him out on a call rather than putting Allison-Smith on notice that they were going to send him back out and give them the opportunity to reject him." (Id. ¶ 44.)
In their Motion for Judgment on the Pleadings, Allison-Smith asserts that Plaintiff "brings forth no facts which can reasonably be interpreted as demonstrating arbitrary, discriminatory, or bad faith behavior on the Union's part." (Dkt. No. 23-1 at 9.) Allison-Smith instead characterizes Plaintiff's allegations as "petty, unreasonable, and/or frivolous." (Id.) Allison-Smith asserts that Plaintiff "does not specifically allege that any aspect of Moore's behavior was arbitrary, discriminatory, or taken in bad faith," and "[m]ore important[ly], . . . does not explain how any of these alleged breaches contributed to an erroneous outcome in the adjudication proceedings." (Dkt. No. 23-1 at 10.)
Although Defendant Allison-Smith has vigorously argued that Plaintiff failed to plead facts sufficient to state a plausible claim that the Local 776 breached its duty of fair representation, the undersigned disagrees.
A fair reading of Plaintiff's Complaint indicates that Plaintiff alleges the union handled Plaintiff's grievance in a perfunctory manner, thereby breaching its duty of fair representation, and that this breach contributed to an erroneous outcome in the contractual proceedings. Plaintiff alleges that he was terminated without proper cause for, inter alia, exposing various safety violations, but that the union "failed to argue at the time of the hearing that Plaintiff's grievance had merit or that there were in deed [sic] unusual circumstances surrounding the alleged lay off." (Compl. ¶¶ 38, 43.) Plaintiff also alleges that, as a "result of the Local Union's actions or lack thereof, . . . the Local [776] is equally liable to him for his lost wages and benefits." (Compl. ¶ 47.) Accordingly, the undersigned recommends concluding that Plaintiff pled sufficient facts to state a claim for a breach of the duty of fair representation. See Carpenter v. W. Va. Flat Glass, Inc., 763 F.2d 622, 625 (4th Cir. 1985) (finding that the union breached its duty of fair representation by failing to contact the employee's doctor, where the critical issue in the employee's claim for reinstatement turned explicitly on whether he was physically able to work at the plant); Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 582-83, 585 (6th Cir.1994) (finding that the union breached its duty of fair representation where the union's representative had completely failed to investigate the site of the accident underlying the employee's discharge, and where the union had failed to call "the one witness who could have effectively and objectively corroborated [the employee's] testimony on a vital matter").
Even if Plaintiff alleges sufficient facts to state a claim that the Local 776 breached its duty of fair representation, Defendant Allison-Smith may still be entitled to dismissal: if Plaintiff failed to allege facts sufficient to state a claim that Allison-Smith violated the collective bargaining agreement, Defendant Allison-Smith's Motion for Judgment on the Pleadings should be granted. See Chauffers, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 564 (1990). Allison-Smith argues that Plaintiff "does not state a plausible claim for breach of the Collective Bargaining Agreement because he admits that it places `no restrictions' on Allison-Smith's discretion to terminate." (Dkt. No. 23-1 at 12.) Allison-Smith further contends that Plaintiff's claim fails because the arbitrator's decision "was final and binding." (Id. at 12-13.)
To the extent Allison-Smith argues that Plaintiff's claim fails because the arbitrator's decision "was final and binding," the undersigned disagrees. In his Complaint, Plaintiff recognizes the arbitrator's authority. As noted above, Plaintiff explains the collective bargaining agreement as follows:
(Compl. ¶¶ 6-7; see also Dkt. No. 24-1 at 5-6 of 37; Dkt. No. 24-2 at 2 of 15.) He also alleges, however, that "he should not be bound by the final and binding decision of the Local Labor Management Committee because his Local [776] violated its duty of fair representation." (Compl. ¶ 40.)
Allison-Smith appears to argue that because the collective bargaining agreement contains an arbitration provision, and Plaintiff's grievance was in fact arbitrated, Plaintiff's claim for breach of the collective bargaining agreement fails. To the extent it makes such an argument, Allison-Smith is incorrect. In Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976), the Supreme Court addressed such an argument, stating,
Hines, 424 U.S. at 567.
Allison-Smith also argues that Plaintiff "does not state a plausible claim for breach of the Collective Bargaining Agreement because he admits that it places `no restrictions' on Allison-Smith's discretion to terminate." (Dkt. No. 23-1 at 12.) But Plaintiff does not admit that at all. Plaintiff alleges the "defendant employer could not discharge him from his employment without proper cause under either the collective bargaining agreement or the small works addendum." (Compl. ¶ 11.) Allison-Smith, on the other hand, contends that neither the Collective Bargaining Agreement nor the Addendum "includes a so-called `just cause' provision." (Dkt. No. 23-1 at 12.) The contractual provision at issue provides as follows:
(Compl. ¶ 9 (emphasis added); see also Dkt. No. 24-1 at 7 of 37; Dkt. No. 24-2 at 2 of 15.)
It appears to the undersigned that the contract indicates the employer shall "have no restrictions except those specifically provided for in the collective bargaining agreement . . . in hiring and laying off employees . . . and in discharging employees for proper cause." (Compl. ¶ 9.) A fair reading of Plaintiff's Complaint indicates he alleges that although the termination slips he received indicated he was laid off, in reality he was not laid off but terminated without proper cause. (See Compl. ¶ 37.) Plaintiff has alleged facts to support that theory; for example, he alleges that although he was told he was laid off because the job was completed, he was terminated in the early morning hours, when he himself was in fact still working (and the job was therefore not complete), and because when he called the Local 776's Office Manager to ask if there were any calls left in the hall, she "informed him that there were 2 calls, including one for the MNK Project for the same position that [Plaintiff] had just been laid off from." (See Dkt. No. 1 at 12-14 of 19; see also Compl. ¶¶ 25-26, 29-30, 33.)
Allison-Smith focuses on the portion of the clause that indicates the employer shall "have no restrictions except those specifically provided for in the collective bargaining agreement . . . in hiring and laying off employees." (See Compl. ¶ 9). However, that same provision also indicates the employer "shall have no restrictions except those specifically provided for in the collective bargaining agreement . . . in discharging employees for proper cause." (Id.) In the opinion of the undersigned, the Plaintiff's allegations that he was discharged without proper cause in violation of the collective bargaining agreement do state a claim. The cases cited by Allison-Smith do not indicate otherwise. Klein v. Jackson Voice Data, Inc., Civ. A. No. 92 Civ. 2993 (KC), 1993 WL 385773 (S.D.N.Y. 1993), does not discuss a provision pertaining to "discharging employees for proper cause." See Klein, 1993 WL 385773, at *2 n.5. One of the provisions mentioned in Parsons Electric Co. v. National Labor Relations Board, 976 F.2d 1167 (8th Cir. 1992), does more similarly match the provision in the case sub judice, as it also refers to "discharging Employees for proper cause." See Parsons, 976 F.2d at 1168 n.2. Parsons, however, does not interpret that particular provision. See Parsons, 976 F.2d 1167. In the opinion of the undersigned, Plaintiff has pled facts sufficient to state a claim for breach of the collective bargaining agreement.
Defendant Allison-Smith also filed a Motion to Exclude the Affidavit of Edward Bonaldi and Accompanying Exhibits. (See Dkt. No. 47.) Plaintiff did not file any opposition to this motion. Rule 12(d) provides as follows:
FED. R. CIV. P. 12(d). Because the undersigned has not relied upon the information contained in Plaintiff's Affidavit (or the accompanying exhibits), the undersigned recommends granting the Motion to Exclude the Affidavit of Edward Bonaldi and Accompanying Exhibits (Dkt. No. 47).
Wherefore, it is RECOMMENDED that the Motion for Judgment on the Pleadings (Dkt. No. 23) filed by Defendant Allison-Smith Company LLC be DENIED and that the Motion to Exclude the Affidavit of Edward Bonaldi and Accompanying Exhibits (Dkt. No. 47) be GRANTED.
IT IS SO RECOMMENDED.
