ST. JAMES v. SCOT LAD FOODS No. 85 C 10128.
652 F.Supp. 1228 (1987)
Leland ST. JAMES, et al., Plaintiffs, v. SCOT LAD FOODS, et al., Defendants.
United States District Court, N.D. Illinois, E.D.
January 28, 1987.
Ronald S. Samuels, Washington, Kennon, Hunter & Samuels, Chicago, Ill., for plaintiffs.
Barry L. Chaet, Timothy G. Costello, Krukowski, Chaet, Beck & Loomis, S.C., Milwaukee, Wis., Edward S. Freud, Ruff, Weidenaar & Reidy, Chicago, Ill., for defendants.
MEMORANDUM AND ORDER
MORAN, District Judge.
Plaintiffs brought this action in Cook County Circuit Court after defendant Scot Lad Foods, Inc. ("Scot Lad") terminated their employment as security personnel. The gist of plaintiffs' complaint is retaliatory discharge. Count I of the complaint alleges that they were discharged without good cause, in violation of an implied contract with Scot Lad. Count II alleges that they were discharged in violation of an implied covenant of good faith with Scot Lad. Count III is captioned as a breach of contract claim, but it appears to state a tort claim for wrongful discharge in violation of the public policy of Illinois. Count IV is captioned as an unfair competition claim, but it appears to state a claim for the tort of outrage. All four counts are characterized as arising under state law.
Defendants removed the case to federal court on the ground that if the complaint states a claim at all, the claim arises under section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. Defendant now moves for summary judgment, claiming that plaintiffs' claims are preempted by section 301, that plaintiffs have failed to exhaust their remedies under a collective bargaining agreement between Scot Lad and plaintiffs' union, and that there is no evidence that the union breached its duty of fair representation. The
Plaintiffs were employed as security personnel by Scot Lad and Scot Lad's Lansing, Illinois facilities. Their employment was governed by a collective bargaining agreement executed by Scot Lad and the Service Employees International Union Local 189 (Local 189) on April 1, 1979. The contract was renewed on April 1, 1982 and remained in force until March 31, 1985. In 1983, Local 189 merged with General Service Employees Union Local 73 (Local 73), but the merger apparently did not affect the collective bargaining agreement.
Plaintiff Richard Farmer served as union steward at Scot Lad for Local 189 from 1974 until 1983. Mr. Farmer continued to serve as union steward after Local 189 merged with Local 73 in 1983, until he was discharged by Scot Lad on June 22, 1985. Defendant Howard Wahl is director of security at Scot Lad and part of his duties included supervising the plaintiffs. Both Farmer and Wahl participated in the negotiation and renewal of Local 189's collective bargaining agreement.
Plaintiffs continued to work for Scot Lad after the collective bargaining agreement expired on March 31, 1985. Scot Lad continued to apply the terms of the agreement "until it implemented, at impasse, its proposal to subcontract the security work performed by the plaintiffs as part of the bargaining unit represented by Local 189" (Wahl aff. ¶ 2).
Local 189's collective bargaining agreement in part provides that "[t]he Employer agrees that it will not discharge any employee... without justifiable cause." Article 7, section 4. The agreement also specifies procedures to be followed in handling grievances:
Plaintiffs allege that they were discharged in retaliation for filing a grievance concerning the wages they were being paid for Sunday work. Article 9, section 4, of the collective bargaining agreement states in part that "Sunday work shall be compensated at the rate of two (2) times the regular rate." All of the plaintiffs regularly worked on Sundays from April 1, 1979 until they were discharged (complaint ¶ 12), but Scot Lad paid them at their regular rate of pay instead of double-time (complaint ¶¶ 13, 14). On August 22, 1984, the plaintiffs filed a grievance to collect the difference between double-time pay and regular pay for the Sundays they had worked (Farmer aff. ¶ 6).
Defendant John Lowe, Scot Lad's warehouse manager, met with the union to discuss plaintiffs' back pay grievance on October
On January 11, 1985, Scot Lad denied plaintiffs' back pay grievance in writing. Scot Lad's position was that plaintiffs' claim for double-time pay on Sundays was based on language that applied only to chauffeurs (Wahl aff. ¶¶ 5-7 and exh. A). Plaintiffs dispute Scot Lad's interpretation of the collective bargaining agreement (Farmer aff. ¶¶ 4-5).
On June 6, 1985, plaintiffs met with Richard Wesley of Local 73, their business agent, and asked him to pursue their grievance and the resulting termination of their employment with Scot Lad (Farmer aff. ¶ 10). Wesley told the plaintiffs there was nothing he could do. To cut payroll costs, Scot Lad had decided to hire a subcontractor, North Central Security (North Central), to handle their security work. Wesley also told the plaintiffs that he was North Central's business agent and that he could get the plaintiffs jobs at North Central at $3.00 per hour and $3.50 per hour after sixty days. The plaintiffs apparently declined Wesley's offer, but repeated their request that Wesley take action to resolve their back pay grievance.
On June 10, 1985 Farmer wrote to Wesley and repeated plaintiffs' request that Wesley attempt to settle their grievance. On August 13, 1985, after Scot Lad discharged the plaintiffs and installed North Central to replace them, Farmer again asked Wesley to settle plaintiffs' claim for back pay. Wesley told Farmer there was nothing he could do.
According to the defendants, the plaintiffs never filed a grievance under the collective bargaining agreement protesting their termination or Scot Lad's subcontracting of the security work they had done (Wahl aff. ¶ 4). Nor have they filed an unfair labor practice charge with the National Labor Relations Board (Wahl aff. ¶ 5). Instead they filed this action on November 8, 1985.
I. Preemption and its Consequences
There is no longer any dispute that plaintiffs' claims arise under section 301 of the LMRA. See Allis-Chalmers Corp. v. Lueck,
But defendant is not entitled to summary judgment simply because plaintiffs' state law claims are preempted. Plaintiffs' complaint may be treated as raising section 301 claims despite plaintiffs' failure to characterize them that way. Cf. Gibson v. AT & T Technologies,
II. Section 301
Section 301 provides for federal court jurisdiction over "[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce...." 29 U.S.C. § 185(a). Plaintiffs' complaint is not a model of clarity, but it is sufficient to state a claim under section 301. See Waycaster v. AT & T Technologies, Inc.,
Defendants have not moved for summary judgment on the merits of the alleged contract violation. Instead they have focused on the procedural hurdles that must be cleared before a § 301 suit may be maintained by individual employees, rather than their union. As the Supreme Court explained in DelCostello v. International Brotherhood of Teamsters,
462 U.S. at 164-165, 103 S.Ct. at 2290-2291 (citations omitted). In addition, individual employees are ordinarily required to exhaust any grievance or arbitration remedies provided in the collective bargaining agreement. See DelCostello, 462 U.S. at 163, 103 S.Ct. at 2289; Republic Steel Corp. v. Maddox,
Defendants first contend that they are entitled to summary judgment because plaintiffs have not exhausted their remedies under Local 189's collective bargaining agreement. Mr. Farmer's affidavit states that the plaintiffs made many attempts to get the union to resolve their claims for double-time wages on Sunday within the grievance machinery created by Local 189's collective bargaining agreement. But plaintiffs' complaint apparently seeks reinstatement and damages from being wrongfully terminated, not back pay for Sundays already worked.
This contention is unpersuasive, based on the record now before the court. On a motion for summary judgment "[a]ll factual inferences are to be taken against the moving party and in favor of the opposing party." International Administrators, Inc. v. Life Insurance Co. of North America,
Moreover, the exhaustion requirement may be excused under certain circumstances:
Macon v. Youngstown Sheet & Tube Co.,
A more serious problem is that any grievance procedures that might have been available to the plaintiffs to protest their terminations would have to be found in Local 189's expired collective bargaining agreement. The court accepts defendant's argument that the terms of the agreement continued to control the employer-employee
B. Duty of Fair Representation
Defendants' second major contention is that there is no evidence that plaintiffs' union breached its duty to fairly represent them. Defendants correctly state that merely rejecting a grievance as without merit is not a breach of fair representation. See Vaca v. Sipes,
Plaintiffs claim that Local 73 breached its duty to fairly represent them because its representation of North Central Security created a conflict of interest. Defendants correctly argue that union's representation of two groups of employees with antagonistic interests is not in itself a breach of the union's duty to fairly represent either group. In Humphrey v. Moore,
375 U.S. at 350, 84 S.Ct. at 372.
However, unlike Humphrey v. Moore, the record now before this court is insufficient to reject the inference that Local 73 deliberately and unjustifiably refused to represent the plaintiffs in processing their grievances or in negotiating a new collective bargaining agreement. Also unlike Humphrey v. Moore, in which the union adopted "a familiar and frequently equitable solution to ... inevitably conflicting interests," 375 U.S. at 347, 84 S.Ct. at 371, the record here suggests that Local 73 completely abandoned the plaintiffs in favor of North Central Security. On the present record it is also conceivable that the plaintiffs were "on the outs" with Local 73 for refusing to drop their demand for double-time pay on Sundays. Dober v. Roadway Express, Inc.,
Further development of the record may well disclose a lack of merit in plaintiffs' claims against the defendant, either on the grounds raised here or on other grounds. In particular, plaintiffs' only possible substantive claim under § 301 is extremely limited, resting almost entirely on the character of the parties' impasse in failing to reach a new contract. Defendants may be entitled to summary judgment on the merits of that claim, or plaintiffs may not be able to advance it and still comply with Rule 11, but neither side has discussed the issue, nor has discovery apparently been devoted to it. Under the circumstances, granting summary judgment on that basis now would be inappropriate, but nothing in this opinion precludes the argument from being raised in a new summary judgment motion.
Defendant's motion for summary judgment is denied.
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