Breach of Contract by Company
Because plaintiff has failed to establish a cause of action against the Union his claim against Friedman's must also fail. To recover against Friedman's, it must be established that plaintiff "did not receive fair representation from the Union as well as proving his claim against the employer." Findley v. Jones Motor Freight, supra at 957 (citing Vaca v. Sipes, supra). "Thus, an employee's claim against his employer for wrongful discharge may be meritorious, but he nevertheless cannot prevail in a federal court action unless he establishes a lack of fair representation." Findley v. Jones Motor Freight, supra at 958. Because plaintiff has failed to establish a lack of fair representation from the Union, the court need not reach the merits of his claim against Friedman's.
The second count of the complaint asserts a claim for $ 2,974.50, which is an amount equal to five weeks paid vacation. Plaintiff claims that at the time of his discharge he was entitled to five weeks paid vacation. Defendants argue that pursuant to the relevant portions of the National Master Freight Agreement plaintiff was not entitled to vacation benefits. Even assuming that plaintiff is entitled to such vacation pay, defendants contend that plaintiff failed to exhaust his available internal union remedies and this alone bars this cause of action.
Although not specified in the complaint, plaintiff's claim for five weeks vacation pay consists of "one week for 1984 and four weeks for 1985." Plaintiff's Statement of Material Facts para. 43, Document 70 of the Record. The Central Pennsylvania Supplemental Agreement to the National Master Freight Agreement (Agreement) establishes that plaintiff is entitled to receive four weeks paid vacation each vacation period. This same agreement also describes a vacation period as "April 1 through March 31 of the following year." On the basis of the above, plaintiff's claim is apparently for one week paid vacation for the vacation period in which he was discharged and four weeks paid vacation for the ensuing vacation period.
Article 48, § 1(d) of the Agreement appears to control the issue of plaintiff's entitlement to vacation pay. This section, in pertinent part, states: "An employee who is discharged . . . shall not be paid vacation if the action of discharge . . . is prior to the employee's bid or assigned vacation period."
The record does not disclose the date on which plaintiff's next scheduled vacation week was to commence. However, according to the terms of the agreement, the plaintiff, as a discharged employee, would only qualify if his vacation period would commence no earlier than the date of his discharge. The court has reviewed the plethora of exhibits submitted for its review and is satisfied that this is not the case.
Plaintiff fails to state the basis upon which he is entitled to vacation benefits for the upcoming vacation period. The court has reviewed Article 48 of the Agreement which governs vacation pay. There is nothing in this article which would obligate Friedman's to pay plaintiff for his anticipated vacation.
Defendants have argued that on the basis of Clayton v. International Union of Automobile, Aerospace and Agricultural Implement Workers of America, 451 U.S. 679, 68 L. Ed. 2d 538, 101 S. Ct. 2088 (1981) plaintiff was required to exhaust available internal union remedies before instituting suit against the Union and/or Friedman's. Union's Brief in Support of Motion for Summary Judgment, Document 26 of the Record at 20. It is undisputed that Pachick never submitted a grievance to the Union. Pachick Deposition at 81, 85-86, Document 50 of the Record. Plaintiff's brief argues that Belusko refused to accept a grievance on this issue. "Belusko informed Pachick that no grievance would be filed on his behalf and, if Pachick attempted to submit his own written grievance, Belusko would discard it." Plaintiff's Brief in Opposition to Motion for Summary Judgment, Document 42 of the Record at 24. Assuming that Belusko refused to accept the grievance, plaintiff's claim would still be barred because he failed to exhaust internal union remedies.
The Union contends, and plaintiff does not dispute, that the Executive Board of Local Union No. 401 has authority to overrule a decision made by Belusko not to process a grievance. Id. at 25, Union's Brief in Support of Motion for Summary Judgment, Document 26 of the Record at 19-20. Plaintiff's contention that Belusko refused to accept his grievance does not relieve him of the duty to appeal this alleged refusal to the Executive Board. Id.
Plaintiff's State Law Tort Claims
The complaint sets forth causes of action based upon defamation, intentional interference with contractual relationships and prospective contractual relationships, and intentional infliction of emotional distress.
The court agrees with defendants' argument that these claims are merely recharacterizations of Pachick's federal claims and, as such, are preempted by federal labor law. All of plaintiff's state tort claims are based in the same acts and conduct which formed the basis for plaintiff's breach of fair representation and breach of contract claims and are thus preempted by federal labor law. See Allis-Chalmers Corp. v. Lueck 471 U.S. 202, 105 S. Ct. 1904, 85 L. Ed. 2d 206 (1985); Carter v. Smith Food King, 765 F.2d 916 (9th Cir. 1985); Mitchell v. Pepsi-Cola Bottlers, Inc., 772 F.2d 342 (7th Cir. 1985).
The Labor-Management Reporting and Disclosure Act
Plaintiff's complaint alleges that his rights under the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 401 et seq. were violated.
The Union's Statement of Material Facts, para. 49, Document 26 of the Record, and its supporting brief, at 21, Document 26 of the Record, contend that there is no evidence to support an inference that plaintiff's guaranteed rights under the LMRDA were violated. The Union's contentions are supported by specific citations to the record.
Plaintiff's response to the Union's Statement of Material Facts argues that plaintiff was discharged because of his "outspokenness." Further, plaintiff argues that the Union failed to provide fair representation because of this outspokenness, para. 49, Document 70 of the Record. Plaintiff offers no support for this contention. Plaintiff's opposition brief devotes but one sentence to this issue and, again, offers no factual support. Plaintiff's Opposition Brief at 26, Document 42 of the Record.
Pachick admitted in a deposition that he freely attended union meetings on a regular basis and enjoyed freedom of speech within the union. Pachick Deposition at 88-90, Document 50 of the Record. The court has reviewed the record and has failed to discover any evidence which would support plaintiff's claim under the LMRDA. Consequently, summary judgment on this issue is proper.
The Union's Motion to Strike
The complete procedural background to the Union's present motion to strike plaintiff's response to the Union's Statement of Material Facts is set forth in the court's Memorandum and Order filed on March 31, 1986, Document 62 of the Record.
The court's Memorandum and Order of March 31, 1986 was prompted by plaintiff's argument that a response to the defendants' Statement of Material Facts was not required because the allegations contained therein were previously denied by plaintiff in response to a Request for Admissions. The court rejected the argument for the following reasons.
The purpose underlying Local Rule 401.4 is to present a summary judgment motion to the court in an orderly and concise manner. Plaintiff cannot ignore the requirements of this rule by calling the court's attention to responses to Requests of Admissions thereby expecting the court to search the record to determine if genuine factual disputes exist. Therefore, plaintiff will be ordered to respond to defendants' Statement of Material Facts by numbered paragraph and describing, with particularity, the factual predicate for the assertion that there is a genuine issue of fact.
Id. at 3-4.
On April 21, 1986, plaintiff filed a response to defendants' Statement of Material Facts to which there are no genuine disputes. Documents 69, 70 and 71 of the Record. Plaintiff's response to Friedman's Statement of Material Facts simply admitted or denied each allegation without explanation or reference to the record. The response to the Union's Statement of Material Facts is nearly barren of any specific citations to the record but does contain a specific statement of facts which purports to contradict each contested allegation.
Defendant Union contends that plaintiff's failure to support his denial by specific citation to the record is in contradiction to the court's Local Rules and a violation of the court's March 31, 1986, Order. Consequently, the union argues that its Statement of Material Facts must be deemed admitted. The court agrees with this reasoning and will grant the Union's Motion to Strike and deem both defendants' Statements of Material Facts admitted.
The March 31, 1986 Opinion required plaintiff to file an answer to the defendants' Statement of Material Facts in accordance with Local Rule 401.4. This rule states, in pertinent part: "The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried." The purpose of this Rule is to present the "summary judgment motion to the court in an orderly and concise manner." Document 62 of the Record at 3.
Plaintiff's present response to defendants' Statement of Material Facts does not present the issues to the court in an "orderly and concise" posture. As stated above, plaintiff responded to Friedman's Statement of Material Facts by merely admitting or denying the same. The basis of each denial is not presented for the court's consideration. See Documents 69 and 71 of the Record. Plaintiff's response to the Union's Statement of Material Facts does offer a factual foundation for each denial but neglects to support the denial with a reference to the record. In both instances, the court must still search through numerous depositions and over 100 exhibits to test the accuracy of each denial. This is precisely what Local Rule 401.4 is designed to prevent. Furthermore, the court's Order made clear that plaintiff was to state the "factual predicate for the assertion that there is a genuine issue as to material fact." Document 62 of the Record at 4.
The court rules that plaintiff's response to defendants' Statement of Material Facts violates the spirit of Local Rule 401.4 and directly contradicts the court's Memorandum and Order of March 31, 1986. A proper sanction is to deem both defendants' Statements of Material Facts admitted. Based on such admissions alone, summary judgment is proper.
Nevertheless, the court emphasizes that it has reviewed the exhibits, deposition testimony and the testimony before the Joint Hearing Committee. Many of the allegations contained in plaintiff's response to the Union's Statement of Material Facts have factual support in the record. However, the factual issues created do not preclude the entry of summary judgment in favor of defendants. Therefore, summary judgment is proper even if the court were to conclude that plaintiff had complied with Local Rule 401.4 and the court's March 31, 1986 Memorandum and Order.
An appropriate Order will enter.
NOW, this 29th day of August, 1986, in accordance with the reasoning set forth in the accompanying Memorandum, IT IS HEREBY ORDERED THAT the defendants' Motion for Summary Judgment is granted and the action is dismissed.
WILLIAM J. NEALON, Chief Judge.