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USW v. HEMPT BROS.

August 16, 1994

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CIC, Plaintiff
v.
HEMPT BROTHERS, INC., Defendant



The opinion of the court was delivered by: SYLVIA H. RAMBO

 Before the court are the parties' cross-motions for summary judgment and Plaintiff's motion to strike an affidavit submitted in support of Defendant's motion. Briefs have been filed and the motions are ripe for disposition.

 Background

 This case arises out of the discharge by Defendant of a union employee, James Shurmanek. Shurmanek was terminated when he failed to show up for work on November 18, 1991.

 Shurmanek, a heavy equipment operator, is a member of the Plaintiff-Union. At the time of Shurmanek's discharge, the Union and Defendant (by way of the Pennsylvania Heavy & Highway Contractors' Bargaining Association (PHHCBA")) were parties to a collective bargaining agreement (the "1989 Agreement" or the "Master Agreement"). (Compl., Ex. 1.) The 1989 Agreement covered all "public work," essentially work for governmental entities and public utilities, and included a multi-step grievance procedure. At the time, a separate agreement (the "Memorandum of Agreement") covered "private work," work for private entities. (Id., Ex. 3.) Under the latter agreement, employees were paid at a lower wage rate for private work than for public work. The job to which Shurmanek failed to report on November 18, 1991, was private work.

 The Union grieved Shurmanek's termination on his behalf. This grievance (the "discharge grievance") was resolved at the third stage of the Agreement's grievance procedure after a hearing before the two-member Union-PHHCBA panel (the "Panel"). Defendant did not appear at the hearing although its representative apparently contacted the PHHCBA panel member prior to the hearing to advise him of the company's position. The Panel summarized its disposition of the grievance as follows:

 Results of [the Panel] hearing were as follows:

 
1) Termination of health insurance as per the Agreement between the Pennsylvania Heavy & Highway Bargaining Association and the United Steelworkers of America was improperly instituted.
 
2) Employee was not employed under the conditions of the Agreement between the Pennsylvania Heavy & Highway Contractors Bargaining Association and the United Steelworkers of America at that time.
 
3) The discharge of the employee by Hempt Bros. due to refusal of his employment on a private job has no bearing under the conditions of the Agreement between the Pennsylvania Heavy & Highway Contractors Bargaining Association and the United Steelworkers of America, inasmuch as the job was private work.
 
4) The insurance benefits accrued under the Agreement of the Pennsylvania Heavy & Highway Contractors Bargaining Association and the United Steelworkers of America shall [sic] not have been interrupted and, therefore, we request that benefits be reinstated as of 12/1/91 and all benefits entitled to our laid-off employees shall be extended to James Shurmanek, employee of Hempt Bros. Construction Co., as designated in the Agreement between the Pennsylvania Heavy & Highway Contractors Bargaining Association and the United Steelworkers of America.

 (See March 30, 1992 Letter, Compl., Ex. 5.)

 As a result of these findings, the Pennsylvania Heavy & Highway Welfare Fund reimbursed Shurmanek for five months worth of health insurance premiums he had paid but which the Panel concluded were due him under the 1989 Master Agreement. (See June 23, 1992 Letter from Norman White, attached to Suppl. Jones Aff.)

 During Spring and Summer 1992, when Defendant began rehiring laid-off employees, it did not recall Shurmanek but recalled less senior employees instead. The Union filed a second grievance (the "recall grievance") on Shurmanek's behalf on July 17, 1992. This grievance was resolved at the final stage of the grievance proceedings, arbitration. After a hearing, arbitrator William Marlowe issued his September 8, 1993 decision in which he found that Shurmanek had been properly discharged on November 18, 1991. (Compl., Ex. 8.) Accordingly, he sustained Defendant's failure to recall Shurmanek and denied the Union grievance.

 The Union filed the instant action seeking to enforce what it believes to be the proper understanding of the Panel disposition of the discharge grievance and to vacate the arbitrator's decision with respect to the recall grievance. The parties now have filed cross-motions for summary judgment.

 Discussion

 I. Plaintiff's Motion to Strike

 For the most part, Plaintiff's motion to strike the affidavit of Joseph R. Nokovich is moot. Plaintiff's primary objection to the affidavit is that the affidavit's final paragraph indicates that it is based on the affiant's "knowledge, information and belief." (Nokovich Aff., P 21.) Subsequently, Nokovich has filed a supplemental affidavit indicating that the information contained within the affidavit is based on his personal knowledge. Further, counsel for Defendant have indicated that they added this clause, which after a review of the caselaw they concede is improper, as a standard closing that they routinely employ when preparing an affidavit. (See Dougherty and Haas Affs.) Counsel indicated that, despite the language employed, when they ...


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