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KERN v. USW

May 28, 1987

JOHN KERN, Plaintiff
v.
UNITED STEELWORKERS OF AMERICA, LOCAL NO. 1688, and BETHLEHEM STEEL CORPORATION, Defendants


R. Dixon Herman, United States District Judge.


The opinion of the court was delivered by: HERMAN

R. DIXON HERMAN, UNITED STATES DISTRICT JUDGE.

 Plaintiff brought this action against the defendants Union and Company as a hybrid breach of contract and breach of the duty of fair representation action under § 301 and § 9(a) of the National Labor Relations Act, 29 U.S.C. §§ 159(a) and 185, with pendent state claims. The Complaint contains six separate causes of action. The first two causes of action are against the Union and allege a breach of the duty of fair representation and intentional interference with contractual rights. The third cause of action is against both the Union and Company and alleges a conspiracy under state laws. The final three causes of action are against the company alone. They allege breach of contract and wrongful discharge under state law and Breach of Collective Bargaining Agreement under § 301 of the National Labor Relations Act.

 Defendants have filed summary judgment motions asking for judgment in their favor on the grounds that the state causes of action are preempted by federal law, and the federal cause of action is barred by the six-month statute of limitations. See DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983). In addressing these motions for summary judgment, we will consider all undisputed facts presented in the depositions and affidavits filed by the parties. Where there appears to be an issue of fact, we will resolve it, for purposes of these motions only, in favor of plaintiff.

 Plaintiff Kern was hired as an hourly employee by Bethlehem Steel Company in 1972 to work at the Steelton plant in Steelton, Pennsylvania. Plaintiff became a member of the United Steelworkers of America, Local No. 1688 and was represented by that union in bargaining for his rights under the collective bargaining agreement. Plaintiff worked as an hourly employee in the west end machine shop until July, 1979. At that time, he was offered the job of planner, a non-bargaining unit position. Plaintiff was hesitant to accept a non-bargaining unit position and asked for assurances that he would be "left back in the unit as an hourly man if [he] didn't like the job or if things change or if my job was eliminated." Kern deposition at 22. Plaintiff reports that he discussed his concerns with a superior in the company, Paul Orner:

 
At that time he said he could not give me that answer. He said he would find out. So he talked -- in the meantime he talked to Bob Logan which was the superintendent of the mechanical department. He is the one that was over the whole mechanical deal there. He had approached Bob about this. Bob said no problem. He said when you are taking that kind of job, an exempt salaried job, you automatically have the right to come back in the bargaining unit at any time.

 Kern deposition at 22-23.

 Plaintiff accepted the job as planner and worked in that capacity until February, 1985, when his position was abolished as part of a reduction in force. Plaintiff was given the choice of being laid off as a salaried employee, of being laid off as an hourly employee with the chance to be called back as an hourly employee, and of taking severance pay as of February, 1985. Plaintiff elected to return to the bargaining-unit as an hourly employee. He was immediately laid off as an hourly employee because "at the time, there was no opening in the shop for me to take . . . so I couldn't right then and there go into the union, into the shop and take up a job right off the bat. So I elected to take a layoff which was normal because there was no opening." Kern deposition at 28.

 At the beginning of April, 1985, plaintiff was called back to work as a laborer in the machine shop. He worked as a laborer until August 9, 1985, when he was again laid off. This time, the layoff was because the company and the union agreed that plaintiff's bargaining unit seniority rights were terminated under the collective bargaining agreement when he ceased to be an hourly employee and became a salaried planner. Because no other position was available to plaintiff, given his lack of seniority rights, the company informed him on August 9, 1985 that he was permanently laid off from the company.

 The basis for the company's decision to lay off plaintiff on August 9, 1985, was a clause in the collective bargaining agreement that reads as follows:

 
Promotion to Supervisory Position : If an Employee has been or shall be promoted to a supervisory position, he shall retain and continue to accumulate seniority rights in the seniority unit from which he was or shall be so promoted.

 Article X-Seniority, § 13(b). The company and the union both agreed, in August 1985 and now, that plaintiff's non-bargaining unit-planner position was not "supervisory," and therefore that plaintiff retained no seniority rights in the machine shop unit to which he was returned.

 Plaintiff makes two basic arguments in his complaint. First, he disagrees with the interpretation given to the terms of the collective bargaining agreement. He argues that his planner job was in fact supervisory within the terms of the agreement, and therefore that the company and the union both breached their duties when he was laid off in August 1985. The second basic argument is that plaintiff in fact made a separate oral contract with the company when he accepted the planner position. He argues, and we accept for the purposes of this memorandum, that the assurance he received from the company that "when you are taking that kind of job, an exempt salaried job, you automatically have the right to come back in the bargaining unit at any time," was a separate oral contract and not just an interpretation of the collective bargaining agreement. The state law claims for conspiracy, breach of contract, wrongful discharge, and intentional interference with contractual rights, are all, according to plaintiff, based on the existence of this separate oral contract.

 Defendants argue in their summary judgment motions that plaintiff's federal cause of action for breach of the collective bargaining agreement and breach of the duty of fair representation is barred by the six-month statute of limitations. Plaintiff in his brief in opposition to the motions concedes that his cause of action based on federal law is, in fact, barred. Plaintiff argues, however, that all of his state-law causes of action based on the separate oral contract are not ...


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