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Bonaldi v. Allison-Smith Co., LLC

United States District Court, D. South Carolina, Charleston Division

March 23, 2017

EDWARD ANGELO BONALDI, Plaintiff,
v.
ALLISON-SMITH COMPANY, LLC and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 776, Defendants.

          ORDER

          PATRICK MICHAEL DUFFY United States District Judge.

         The Plaintiff, Edward Angelo Bonaldi, brought this action against Defendants Allison-Smith Company LLC (“A-S”) and the International Brotherhood of Electrical Workers Local 776 (“Local 776”). This matter is before the Court Local 776's Motion for Summary Judgment (Dkt. No. 145) and A-S's Motion for Summary Judgment (Dkt. No. 146). Plaintiff filed responses to both Motions. (Dkt. Nos. 152 and 156) Local 776 and A-S each filed a reply (Dkt. Nos. 157 & 158).

         This action arises out of Plaintiff's employment and discharge as a journeyman wireman at projects in Moncks Corner and North Charleston. In March 2014, the employer, A-S, and the union, Local 776, entered into a collective bargaining agreement that covered employees at the projects, including Plaintiff. Plaintiff alleges that A-S breached the collective bargaining agreement when it discharged him without proper cause and failed to re-hire him in July 2014, and that Local 776 breached its duty of fair representation when he grieved the termination and was rejected for re-hire. Plaintiff alleges that Local 776 violated its duty of fair representation by making an inadequate and perfunctory investigation and presentation of his grievance. For the reasons that follow, the Court concludes as a matter of law that Plaintiff cannot establish that Local 776 breached the duty of fair representation. The Court therefor grants the Motions.

         BACKGROUND

         On March 1, 2014, A-S (an electrical contractor) and Local 776 entered into the “Inside Construction Agreement, ” a collective bargaining agreement, and its supplement, the Small Works Addendum (“collective bargaining agreement” or “CBA”). The CBA covered the electrical work on a construction project A-S oversaw called the MNK project in Moncks Corner, South Carolina. (“MNK project”). (Dkt. No. 146-2 at 171-72.) During the same time period, A-S was also overseeing a second area project at the Charleston International Airport (the “CIA Trip project”). Plaintiff, a member of Local 776, accepted a union referral to perform electrical work at the MNK project on July 11, 2014; the call was for two weeks to an indefinite time period. (Id. at 35-36.)[1]

         A. Plaintiff's Employment and Termination

         Plaintiff worked on the MNK project from July 14 to July 24, 2014. (Dkt. No. 146-2 at 35-36.)[2] He performed such tasks as installing junction boxes, wiring terminal boxes, relocating bus plugs, adjusting mounting brackets, and terminating wire. (Id. at 127.) On July 24, Plaintiff completed a project adjusting brackets. (Id. at 122.) An A-S representative handed Plaintiff a termination notice stating he was being let go that day due to a reduction in force. (Id. at 129- 30.) A-S asserts that Plaintiff was laid off on July 24, an action which was within the total discretion of A-S under the CBA; Plaintiff alleges that he was discharged without cause, in violation of the CBA. (Dkt. No. 1 at 5, 11; Dkt. No. 146-2 at 171-72.)[3] Plaintiff was the only person laid off that day, but A-S undertook six other lay-offs before July 24. (Dkt. No. 145-3 at 125; Dkt. No. 146-11 at 3-4.)

         Upon receiving the termination notice, Plaintiff called Local 776's office to see if there were any other jobs available. The office informed him that there were two calls, including one at the MNK project for a journeyman wireman. (Dkt. No. 1 at 9.) Plaintiff asked for that job, but A-S rejected him for a second employment. (Id.) That same day, Plaintiff sought and spoke to the business manager for Local 776, Chuck Moore, to inform him of his report of safety concerns and how odd it was for him to be laid off in the morning. Plaintiff complained to Mr. Moore that his foreman did not know about the lay-off and that the union steward told him that others were laid off with him. (Id. at 9-10.) Plaintiff alleges that Mr. Moore did nothing to investigate the situation and told him that A-S had the right to lay him off and reject him without a reason. (Id. at 10.) Plaintiff alleges that he told Mr. Moore at that time that he wanted to file a grievance because he thought the lay-off was pre-textual. (Id.)

         Later on July 24, Plaintiff accepted a call from the other regional A-S project, the CIA Trip project. After filling out the appropriate paperwork, Plaintiff was told to report on Monday morning. (Id. at 10.) When Plaintiff did so, he was handed another termination notice. (Id.) Plaintiff returned to the union hall looking for Moore, but was told Moore was out of town. Plaintiff also checked job openings and noticed there was still one for the MNK project. (Id.) Plaintiff checked again for available jobs on the MNK project and was told on July 31 that he was again rejected. (Id. at 11.)

         Plaintiff submitted a grievance to Local 776, alleging he was not laid off but instead was improperly fired for complaining about workplace safety violations. (Id.) Local 776, through Moore, investigated the grievance and represented Plaintiff at the grievance hearing. (Dkt. No. 1 at 14-18.) Plaintiff's claim was rejected by the Labor-Management Committee who heard the grievance on August 28, 2014. (Dkt. No. 145-8 at 91.)

         The two basic questions in Plaintiff's breach of contract cause of action are: 1) whether A-S laid off Plaintiff or instead discharged him without cause; and 2) whether the CBA gave A-S the right to discharge employees without cause. Plaintiff argues he was improperly terminated in retaliation for reporting safety concerns and violations of policy and procedure and safety concerns. (Dkt. No. 1 at 12; Dkt. No. 152 at 3-4.)[4] A-S asserts Plaintiff was terminated because “Plaintiff had just completed an assignment, had worked primarily on short-term projects during his brief employment, was not thought to be as productive as other journeymen wiremen, and was a member of a smaller, more interchangeable crew.” (Dkt. No. 146-1 at 8 (citing Hicks Decl., Dkt. No. 146-11, at 3-4.) The MNK project supervisor, Scott Hicks, has stated that he did not know about any alleged safety concerns/incidents until he received a letter from Plaintiff's on July 28, after his decision to terminate Plaintiff on July 24. (Dkt. No. 146-11 at 4.)

         B. Plaintiff's Grievance

         Plaintiff alleges that Local 776, through Moore, inadequately represented him by failing to investigate his grievance adequately, by failing to call certain witnesses at the grievance hearing, and by failing to represent him zealously at that hearing. (Dkt. No. 152 at 4-5.) Local 776 asserts that Mr. Moore did thoroughly investigate the grievance, despite difficulties dealing with Plaintiff and his attorney, and did represent Plaintiff adequately at the grievance hearing. (Dkt. No. 145-1.)

         As mentioned, Plaintiff first complained to Moore on July 24, the day he was first terminated and rejected for re-employment at MNK. (Dkt. No. 1 at 9-10; Dkt. No. 145-2 at 4.) They discussed the propriety of A-S rejecting Plaintiff for the second MNK position, despite the fact that the termination slip stated he was eligible for rehire (Dkt. No. 146-1 at 136); Plaintiff's fears of being “blackballed” from A-S, as he had been by other large electrical contractors in the area (Dkt. No. 146-1 at 138-40); and his concerns about the management of the MNK project and A-S's treatment of him (Dkt. No. 146-2 at 141-42). Moore told Plaintiff he believe the CBA gave A-S the right to reject any applicant without explanation. (Id.) Plaintiff asked Moore to contact Hicks. (Id. at 140-41.) Plaintiff and Moore discussed filing a grievance and whether Plaintiff should take the open position at the CIA Trip project. (Id. at 141-42.) Plaintiff asserts that during this initial conversation, he formed a belief that Moore was acting in bad faith because Moore was not very sympathetic to Plaintiff's situation. (Id. at 191.)

         Moore went out of town on July 26 to attend a conference, so he did not immediately investigate Plaintiff's concerns about the MNK project. (Dkt. No. 145-2 at 4-5.) Plaintiff visited the union hall on July 28 after receiving the termination notice for the CIA Trip project, but was told that Moore was out of town at a training seminar. (Dkt. No. 146-2 at 150-52.) After leaving the union hall, Plaintiff left Moore a “pretty fuming” voicemail message on Moore's cell phone about the second lay-off and requested that Moore contact him only by email so there would be a record of their conversations. (Dkt. No. 146-2 at 308-10; Dkt. No. 145-2 at 91.) Moore was out of town at his training conference until August 2 and did not immediately respond to Plaintiff's voicemail. (Dkt. No. 145-2 at 5.) But Moore did begin to investigate the circumstances of the lay-offs; Moore contacted the shop steward for the MNK project, Don Howard, during a break at his conference. (Id. at 7.)

         That same evening, Moore received a letter from Plaintiff's lawyer, also addressed to Hicks, stating that Plaintiff's lay-off was an “egregious and pre-textual attempt” by management to terminate Plaintiff without cause and in violation of the CBA, alleging that Local 776's representation to date was “wholly ineffective, unconcerned and unfair, ” and requesting forwarding information for Plaintiff's grievance. (Dkt. No. 145-2 at 99-100.)

         Moore responded on July 31, stating that only Local 776 could file a grievance and asking that Plaintiff follow established rules by reporting the violation allegations to Moore directly. (Dkt. No. 145-2 at 104.) Plaintiff, his attorney, and Moore then exchanged several emails that day. The attorney emailed Moore, stating that she was not trying to file the grievance but wanted to ensure that Local 776 was not allowing any deadlines to expire-which might, she asserted, expose the union to litigation for unfair representation-and that Plaintiff's “efforts to get his union representatives to act in a timely manner were well documented.” (Id. at 100.) Plaintiff also wrote Moore on July 31, complaining about his lay-offs and stating that “[w]e have been weakened enough without the Union failing to stand up . . . . I certainly do not want to sue the Local 776. . . . Take this opportunity to make ‘The Right Choice.'” (Id. at 112.) Moore responded with an email stating that he was still out of town, that he was responding in a timely manner and requesting that Plaintiff make an appointment to meet with him on Monday, August 4. (Id. at 115.)

         After numerous attempts by Moore to get the Plaintiff to meet with him, on August 5, Plaintiff emailed Moore to say that he could not meet with Moore because he had left South Carolina. (Dkt. No. 146-2 at 238-39; Dkt. No. 145-2 at 121.)[5] Plaintiff asked Moore for a grievance form to fill out himself. (Dkt. No. 145-2 at 121.) That same day, Moore provided the grievance form. Plaintiff emailed and mailed Moore a copy of his grievance. (Dkt. No. 145-2 at 128; Dkt. No. 145-3 at 5.) After reviewing the 106-page grievance, Moore filed it via email on August 7. (Dkt. No. 145-3 at 3; Dkt. No. 145-3 at 4 Id. at 110.)

         Under the CBA, the parties have forty-eight hours from the filing of a grievance to resolve it informally. Plaintiff consented to Moore's request for an extension of the informal resolution period, which was granted. (Dkt. No. 145-3 at 3, 112.) Although Plaintiff disputes whether the grievance was filed correctly, there is no dispute that the grievance was considered properly and timely filed, and was heard by the appropriate body. (Dkt. No. 145-3 at 112-17.) The attempt to informally resolve the grievance failed. (Dkt. No. 145-8 at 64-65.)

         As Moore investigated the grievance and prepared for the hearing, he kept a contemporaneous summary of his investigation, which he called the “living document, ” and provided it to Plaintiff prior to the hearing on August 26. (Dkt. No. 145-3 at 131, 135-42.) In addition, Moore has filed a sworn declaration describing his investigation of, and preparation for, Plaintiff's grievance. Although Plaintiff has expressed skepticism about the accuracy of Moore's account of the investigation, he has not provided any evidence to dispute Moore's declaration.

         Moore spoke with eight witnesses about Plaintiff's claims:

1) Moore spoke with Local 776 steward and A-S employee Don Howard by phone and in person regarding Plaintiff's layoffs, rejections, and complaints multiple times, including on July 28, 29, and 31 and on August 6 and 9. Moore asked Howard speak to anyone with knowledge of the Clean Room incident. Howard reported back to Moore about those conversations. (Dkt. No. 145-2 at 7; Dkt. No. 145-2 at 91-96.)
2) Moore spoke with Hicks on July 29 and on August 1, 4, 6, 11, and 22. (Dkt. No. 145-2 at 7, 91-96.)
3) Moore spoke with Local 776 steward and A-S employee John Anzalone on July 30 and on August 14 and 15 regarding Plaintiff's termination from the CIA Trip project. (Id.)
4) Moore spoke with A-S superintendent Mike Stowe about Plaintiff's termination from the CIA Trip project. (Id.)
5) Moore spoke with A-S field operations senior manager Mike Peters about Plaintiff's claims on August 1, 6, 7, 11, 15, and 18. (Id.)
6) Moore spoke with ACC NECA representative Larry Moter multiple times about Plaintiff's claims, including August 7, 9, 10, 13, 18, 19, 20 and 22. (Id.)
7) Moore spoke with A-S employee Kyle Campbell on August 20 regarding the Clean ...

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