United States District Court, Eastern District of Pennsylvania
May 29, 2001
HAROLD MONTZ, PLAINTIFF,
ASPLUNDH TREE EXPERT CO., ET. AL., DEFENDANTS.
The opinion of the court was delivered by: Eduardo C. Robreno, J.
Plaintiff is a former employee of Asplundh Tree Expert Co.
("Asplundh"). He claims that, under § 301 of the Labor Management
Relations Act, see 29 U.S.C. § 185, Asplundh's decision to fire him
when he failed to report to work for "storm duty" breached the collective
bargaining agreement with defendant Local 126 ("the union"), and that the
union violated its duty of fair representation in failing to take his
resulting grievance with Asplundh to arbitration.
In order to recover under § 301, a party must show that: (1) the
employer violated the applicable collective bargaining agreement; and (2)
the union violated its duty of fair representation. See Findley v. Jones
Motor Freight, 639 F.2d 953, 957-58 (3d Cir. 1981). Before the court are
the parties' motions for summary judgment. See doc. nos. 10, 11, & 13.
Because plaintiff has failed to raise a genuine issue of fact as to
whether Asplundh violated the collective bargaining agreement, both
Asplundh and the union are entitled to summary judgment.
Asplundh is in the business of clearing trees and other debris from
power lines. Because demand for Asplundh's services increases greatly when
storms or other emergencies arise, Asplundh has a heightened business
need to ensure that its employees report to work when severe weather or
other emergencies arise. In light of this business need, Asplundh has
bargained with the union for a provision in the collective bargaining
agreement between Asplundh and the union (the "CBA"), which grants
Asplundh increased authority with respect to disciplinary matters that
arise when an employee fails to report for storm or emergency work.*fn1
The CBA specifically provides that Asplundh can terminate an employee
immediately, without regard for the progressive disciplinary steps set
forth elsewhere in the CBA, for an "[u]njustified refusal to report for
storm or emergency work." Def. Asplundh's Mem. of Law in Support of Mot.
for Summ. J. Ex. B, at Art. XII § 12.2.
"It is an unobjectionable principle than an employer can bargain to have
included in a collective bargaining agreement a provision to the effect
that certain types of conduct always provide just cause for discharge."
IMC-Agrico Co. v. Int'l Chem. Workers Council, 171 F.3d 1322, 1327 (11th
Cir. 1999). When such a provision is included in a collective bargaining
agreement, the effect is to divest a court or an arbitrator of the
authority to determine whether the disciplinary sanction imposed by the
employer was commensurate with the alleged employee conduct. See id. ("If
the collective bargaining agreement confers on the employer the absolute
right to discharge employees for certain types of conduct, then the
inquiry of an arbitrator can be limited to `whether or not the
disciplined employee did or did not engage in the specific conduct which
resulted in the disciplinary action.'" (quoting General Drivers,
Warehousemen and Helpers Local Union 968 v. Sysco Food Services, Inc.,
838 F.2d 794, 796 (5th Cir. 1988)). Therefore, this case is
distinguishable from those cases where the CBA merely prohibits an
employee's termination without just cause. See IMC-Agrico Co., 171 F.3d
at 1326-27 (distinguishing between cases where an arbitrator had
authority under the CBA to "review the appropriateness of the discipline
imposed" from those in which an arbitrator had no such authority). The
employer's determination that the employee is subject to disciplinary
action, however, must be made in good faith and with a reasonable basis.
See Kucinski v. Morning Call, Inc., No. CIV.A.90-4535, 1994 WL 66698, at
*5 n. 3 (E.D.Pa. Mar. 1, 1994) (stating that an employer's disciplinary
action is not unjustified where an employer acts in good faith and with a
reasonable basis for its action). In this case, the court's authority is
thus limited to a review of whether the employer's determination that
plaintiff's failure to report for storm duty was "unjustified" was made in
good faith and upon a reasonable basis in the record.
Plaintiff does not dispute the fact that he failed to report for storm
duty on the night of September 17, 1999. Instead, he claims that his
failure to report to work was "justified" within the meaning of the CBA
because he had to tend to his flooded basement that night. Asplundh does
not contend that plaintiff's stated reason, that his basement flooded,
was insufficient to "justify" his missing storm work under the CBA.
Rather, Asplundh found that plaintiff's absence was unjustified because
plaintiff lied about his basement being flooded on the night he failed to
report for storm duty.
Asplundh's General Foreman, Patrick Pinelli, the decision maker in this
case, chose not to believe plaintiff's story for two reasons. See Pinelli
Dep. at 57. First, plaintiff's crew supervisor, Ken Shemelia, told
Pinelli that plaintiff had informed Shemelia that he would not be
reporting for work as directed on the night of September 17 because he
had to tend to duties relating to his landscaping business the next day,
September 18.*fn2 See id. Second, plaintiff failed to call anyone at
Asplundh to advise them that he would be absent from his September 17,
1999 shift. See id. As Pinelli noted in his deposition, "if [plaintiff]
would have had problems with his basement, he could have certainly picked
up the phone." See id. at 56. Given that Asplundh had expressed in clear
and unmistakable terms the importance it placed on having its employees
available in weather emergencies,*fn3 Pinelli reasonably determined that
plaintiff's failure to call Asplundh the night of his absence indicated
that plaintiff had no legitimate reason why he could not come to work
Plaintiff denies making any statement to Shemelia concerning his
intention not to report for his shift on the night of September 17. He
contends that Pinelli was wrong to believe Shemelia and to disbelieve
plaintiff, but does not point to any evidence suggesting that Shemelia's
statement to Pinelli was animated by had any animus on the part of
Shemelia against him. Under the circumstances of this case, where the
parties had agreed to bypass progressive discipline in dealing with
employee absences during storm or emergency work, and balancing the
evidence before Pinelli, the court concludes that Shemelia's statement,
unimpeached by any claim of animus, taken together with plaintiff's
failure to notify Asplundh of his expected absence on the night of the
storm, provided Pinelli with a good faith and reasonable basis for
Plaintiff also attacks the decision made by Douglas Gober, Asplundh's
vice president, to deny plaintiff's grievance. The denial followed a
conference held between the parties pursuant to Article II, § 2.1(C)
of the CBA. See Asplundh's Mem. of Law Ex. B. The denial of a grievance,
contrary to plaintiff's contention, does not constitute a separate
violation of the CBA. Rather it allowed the parties to proceed to "Step
D" of the grievance procedure, the arbitration of the grievance. See id.
Art. II, § 2.1(D).
Assuming for the purposes of this case that failure to adjust the
grievance would constitute a violation of the CBA, the court finds that
Gober's denial of the grievance was made in good faith and that Gober had
a reasonable basis for his decision. At the "Step C" conference, in
addition to the evidence upon which Pinelli based his decision, Gober
considered: (1) a written statement by Ken Shemelia reaffirming his oral
representation to Pinelli that plaintiff told him that he would not be
reporting for the September 17 shift because he had to attend to his
landscaping business the next day; and (2) Chris Shemelia's testimony
that plaintiff said he was not going to show up for storm duty on the
night of September 17, thus corroborating the testimony of his father,
Ken Shemelia. On the other hand, although plaintiff stated at the hearing
that as a result of the flood, both his sump pump and his hot water
heater had been damaged, he failed to provide any evidence to Gober
showing that either the pump or the heater had indeed required repairs.
Moreover, plaintiff did not produce either his fiancee and/or his teenage
son, who, according to plaintiff, were present at plaintiff's house at
the time of the flood and assisted plaintiff in cleaning out his basement
and thus could have corroborated plaintiff's flood story.*fn4
Plaintiff contends that the evidence upon which Pinelli and Gober made
their respective decisions is insufficient to constitute just cause for
his termination, because "Asplundh, even to this day, has no evidence
that [plaintiff] failed to report to work for any reason other than an
emergency at home . . . ." See Pl.'s Mem. of Law at 11. Under the CBA,
however, Asplundh was not required to produce direct evidence that no
flood had occurred and that plaintiff's basement was in fact dry.
Instead, Asplundh satisfied its burden under the CBA by showing that
there was sufficient circumstantial evidence from which Asplundh could
reasonably and in good faith conclude that plaintiff's explanation for
his absence was not truthful. From the evidence before them, both Pinelli
and Gober were justified in inferring that the basement had not flooded
on the night of September 17.
For the reasons stated above, defendants' motions for summary judgment
are granted, and plaintiff's motion for summary judgment is denied.
AND NOW, this 29th day of May, 2001, for the reasons stated in the
court's memorandum dated May 29, 2001 and the court's order dated May
25, 2001, it is hereby ORDERED that JUDGMENT is ENTERED for defendants
and against plaintiff on all claims.
AND IT IS SO ORDERED.
EDUARDO C. ROBRENO, J.