United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
MARY GORDON BAKER, Magistrate Judge.
The Plaintiff, proceeding pro se,  brought this action against Defendants Allison-Smith Company LLC ("A-S" or "Allison-Smith") and Local Brotherhood of Electrical Workers Local 776 (the "Local 776" or the "Union"). This matter is before the Court upon two motions filed by Defendant Allison-Smith: a Motion for Judgment on the Pleadings (Dkt. No. 23) and a Motion to Exclude the Affidavit of Edward Bonaldi and Accompanying Exhibits (Dkt. No. 47).
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.) According to Plaintiff, the collective bargaining agreement and the small works addendum "were entered into for the benefit of the employees in the bargaining unit, and Plaintiff, as a member of the bargaining unit, is... entitled to the benefit of the agreement and to enforce the provisions of the agreement and any valid small works addendum." ( Id. ) Plaintiff further alleges as follows:
6. Pursuant to the collective bargaining agreement, the grievance and adjustment of an employment dispute shall first be adjusted by the duly authorized representatives of each of the parties to the agreement. If they are unable to adjust the matter within 48 hours, they shall refer the matter to the Labor-Management Committee. Should the Labor-Management Committee fail to agree or to adjust any matter it shall be referred to the Council on Industrial Relations for the Electrical Contracting Industry for adjudication. The Council's decisions shall be final and binding.
7. Pursuant to the small works addendum, the grievance and adjustment of an employment dispute covered by that addendum shall be heard by the "Carolinas Small Works" Labor-Management Committee. In the absence of a deadlock, the Carolinas Small Works Labor-Management Committee's decision shall be final and binding.
(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:
a) having unwittingly exposed the fact that the Allison-Smith General Foreman, Clyde, had instructed an apprentice to enter a level 3 clean room to conduct uncontained cutting in violation of the General Contractor's clean room procedures which as an employee he was instructed to bring to the attention of the apprentice and if necessary any other person capable of instructing him to come into compliance, and the General Foreman wanted to get rid of him out of concern this fact might be disclosed to the General Contractor or worse, the owner, and b) because he brought to light other violations of policy and procedure and safety concerns, including, the violation of the lift safety procedures.
(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.) Plaintiff further alleges that he "has exhausted all internal grievance procedures" but asserts he "should not be bound by the final and binding decision of the Local Labor Management Committee because his Local  violated its duty of fair representation." ( Id. )
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  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.
A. Motion for Judgment on the Pleadings (Dkt. No. 23)
1. Applicable Law
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,
Ordinarily, ... an employee is required to attempt to exhaust any grievance or arbitration remedies provided in the collective bargaining agreement. Subject to very limited judicial review, he will be bound by the result according to the finality provisions of the agreement. In Vaca and Hines, however, we recognized that this rule works an unacceptable injustice 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 an instance, an employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding. Such a suit, as a formal matter, comprises two causes of action. The suit against the employer rests on § 301, since the employee is alleging a breach of the collective bargaining agreement. The suit against the union is one for breach of the union's duty of fair representation, which is implied under the scheme of the National Labor Relations Act. Yet the two claims are inextricably interdependent. To prevail against either the company or the Union, ... employee-plaintiffs must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating a breach of duty by the Union. The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both. The suit is thus not a straightforward breach of contract suit under § 301, ... but a hybrid § 301/fair representation claim, amounting to a direct challenge to the private settlement of disputes under the collective-bargaining agreement.
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 ...