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Nannay v. Aker Philadelphia Shipyard

May 10, 2010

THOMAS H. NANNAY
v.
AKER PHILADELPHIA SHIPYARD, INC. AND BOILERMAKERS LOCAL 19



The opinion of the court was delivered by: O'neill, J.

MEMORANUM

Presently before me is defendant Aker Philadelphia Shipyard's motion to dismiss Count II of the complaint and plaintiff Thomas H. Nannay's response. For the following reasons, I will grant defendant's motion.

BACKGROUND

During the time period relevant to this case, plaintiff was an employee of Aker and a dues-paying member of Boilermakers Local 19. On May 12, 2008, plaintiff was given a "slip #1 warning" and placed on disciplinary probation as a result of an unspecified rules violation.*fn1 On July 24, 2008, plaintiff asked his supervisor if he could cancel upcoming overtime hours he had voluntarily scheduled. When his supervisor informed him that it was too late to cancel, he asked if he could speak with his union steward about his concern. His supervisor instructed him to wait twenty minutes until his lunch hour began to have the conversation. Plaintiff allegedly disregarded his supervisor's order and immediately sought out his union steward. On the same day, he returned from his lunch hour five minutes late.

As a result of these two violations of Aker's rules, plaintiff received a "slip #3 warning," and was terminated from his position. He was informed that his dual infractions would ordinarily have warranted only a "slip #2 warning" but the fact that he was on slip #1 probation enhanced his sanction to slip #3 and, consequently, termination.

Immediately thereafter, Local 19 filed a grievance challenging plaintiff's termination. On September 8, 2008, however, in a letter written by David Gaillard, the president of Local 19, the union informed plaintiff that it had withdrawn plaintiff's case from arbitration "for lack of merit." He cited four reasons in support of Local 19's decision:

1. In a telephone conversation we had you stated, "you didn't think you would be a good witness for yourself and was [sic] hesitant about going forward", your wife told me to go forward with the case, but, your [sic] the union member.

2. The charge of "refusal to obey orders" holds because you didn't return to work when the supervisor told you to see a Stewart [sic] at lunch time, instead you went to the tool crib and had someone radio for a Stewart [sic] knowing that all supervisors have radios and can hear what is being transmitted.

3. You returned late from lunch on that same day and was [sic] basically charged with theft of time.

4. You were written up on 5/12/08 and was [sic] on a 90-day probation when this infraction occurred.

Compl., Exh. P-2.

On October 10, 2008, in a letter to Local 19, plaintiff's attorney Dennis L. Friedman responded to each of the four reasons. He then requested clarification of whether the case had actually been withdrawn. On October 22, 2008, Local 19 informed Friedman that the case had been withdrawn and that it "stands by its decision that the case lacked merit...." Compl., Exh. P-4.

On January 27, 2009, plaintiff filed this "hybrid" lawsuit. This type of lawsuit is referred to as hybrid because plaintiff has sued both his union, Local 19, and his employer, Aker. See Delcostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 165 (1983); Bullock v. Dressel, 435 F.3d 294, 300 (3d Cir. 2006). Specifically, he alleges in Count I*fn2 that Local 19 breached its duty of fair representation in violation of 29 U.S.C. § 151 and in Count II that Aker breached its collective bargaining agreement with Local 19 in violation of section 301 of the Labor Management Relations Act, 29 U.S.C. § 185.*fn3 On April 21, 2009, Aker filed a motion to dismiss Count II of plaintiff's complaint. On May 5, 2009, plaintiff ...


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