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Kovach v. Service Pers. & Emples. of the Dairy Industry

United States District Court, W.D. Pennsylvania

September 30, 2014

NICK KOVACH, Plaintiff,

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For NICK KOVACH, Plaintiff: James B. Lieber, LEAD ATTORNEY, Lieber Hammer Huber & Bennington, P.C., Pittsburgh, PA.

For TURNER DAIRY FARMS, INC., Defendant: John A. McCreary, Jr., LEAD ATTORNEY, Babst, Calland, Clements & Zomnir, Pittsburgh, PA; Marla N. Presley, LEAD ATTORNEY, Alana E. Fortna, Babst, Calland, Clements & Zomnir, P.C., Pittsburgh, PA.



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Mark R. Hornak, United States District Judge.

On April 4, 2012, Plaintiff Nick Kovach (" Mr. Kovach" ) sued his former employer, Turner Dairy Farms, Inc. (" Turner Dairy" ), and his former union, the Service Personnel and Employees of the Dairy Industry, Local Union No. 205 (" Local 205" )[1] as well as two Local 205 members, William Lickert, Jr., (" Mr. Lickert" ) and Greg Shafer (" Mr. Shafer" ). Mr. Kovach repeatedly amended his Complaint and finally settled on asserting a variety of federal, civil and state law tort claims against the collective Defendants. Those Defendants filed Motions to Dismiss, and in a lengthy Opinion, the Court dismissed several of Mr. Kovach's claims against Local 205 and Turner Dairy. See Kovach v. Turner Dairy Farms, Inc., 929 F.Supp.2d 477 (W.D. Pa. 2013). The Court later dismissed the rest of his claims against Turner Dairy pursuant to a stipulation of dismissal filed by the parties under Fed.R.Civ.P. 41(a)(1). ECF No. 61.

Mr. Kovach then filed a Fourth Amended Complaint (" F AC" ), reasserting his surviving federal law claims against Local 205 and Messrs. Lickert and Shafer (" Defendants" ) under the Labor Management Reporting and Disclosure Act (" LMRDA" ), 29 U.S.C. § § 411(a)(2), 501[2] as well as state law tort claims for intentional interference with contractual relations (against Local 205), negligent supervision and retention (against Local 205), and assault (against Mr. Shafer and Local 205). ECF No. 66. He alleges that the Defendants are subject to liability on these sundry claims because he was placed at risk of serious bodily harm and in fear for his life, and consequently was forced to quit his job with Turner Dairy, when Mr. Shafer, the Union Steward, threatened to beat him up, harassed him daily, and drove a truck at him multiple times, all in retaliation for Mr. Kovach's protected actions as a Union member. He also claims that the leadership of Local 205, particularly Mr. Lickert as the Secretary-Treasurer (who was in de facto control of the Union), knew about this activity and failed to put a stop to it when he had the duty and opportunity to do so.

Now pending before the Court, after extensive development of the record through discovery, are the remaining Defendants' Motions for Summary Judgment. ECF Nos. 101 and 103. The Court has considered the Defendants' Briefs in support of those Motions, ECF Nos. 102 and 104, Plaintiff's Briefs in Opposition, ECF Nos. 116 and 118, and Defendants' Reply Briefs, ECF Nos. 123 and 125; Defendants' Concise Statements of Material Facts, ECF Nos. 100 and 107, Plaintiff's Responses, ECF Nos. 115 and 117, and Statement of Facts, ECF Nos. 119-120, and Defendants' Responses, ECF Nos. 124 and 127. The Court also heard oral argument

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on the Motions on July 16, 2014. ECF No. 128.

The Motions are granted in part and denied in part for the reasons that follow.


Mr. Kovach became a member of Local 205 in 1983, when he was hired by Taylor Milk Company. Plaintiffs Statement of Facts (" PSOF" ), ECF No. 119, at ¶ 2. In 1989, he got a job as a truck driver for Turner Dairy, where he remained a Local 205 member. Id. at ¶ 4; Defendant's Statement of Facts (" DSOF" ), ECF No. 107, at ¶ ¶ 1,3. While at Turner Dairy, Mr. Kovach's route required him to make deliveries five days a week for eight hours a day, or " 5-8s." DSOF, at ¶ 8; PSOF, at ¶ 6. Mr. Kovach began to express a desire to have his route changed to four ten-hour days per week, or " 4-10s." PSOF, at ¶ 15; DSOF, at ¶ 9. At the time, Turner Dairy could change a route from 5-8s to 4-10s, but first had to put it up for bid based on seniority. PSOF, at ¶ 8.

Mr. Shafer had become a truck driver with Turner Dairy in 1985. DSOF, at ¶ 2. Around 2006, he was appointed as the Local 205 Steward for Turner Dairy drivers. Id. at ¶ 4. Local 205's by-laws describe a Steward's duties as including (1) posting all Union notices, including notices of Union meetings; (2) advising new employees of the conditions of employment under the agreement between the employer and the Union and of the employee's obligation to abide by the same; (3) handling grievances and disputes between the employer and the employees in the bargaining unit; (4) seeing that the provisions of the agreement between the employer and the Union are observed, and reporting to the Union any breaches of that agreement; and (5) attending all shop or chapel meetings. ECF No. 107-9, at 12-13.

In 2011, while Turner Dairy and Local 205 were negotiating a new collective bargaining agreement, Turner Dairy proposed as part of the agreement that it would be allowed to change a driver's route schedule from 5-8s to 4-10s[3] without posting the route for bid. DSOF, at ¶ ¶ 10-11. Local 205 counter-proposed that such a change could only be made once per collective bargaining agreement, and the driver would have to agree to the change. Id. at ¶ 12. Mr. Kovach strenuously objected to that proposal because he believed that it violated his seniority rights in bidding on such routes. Id. at ¶ 13. Mr. Lickert and Mr. Shafer both testified at their depositions that they knew of Mr. Kovach's views on seniority and his objection to the proposal. Deposition of William Lickert, Jr. (" Lickert Dep." ), ECF No. 107-4, at 80; Deposition of Greg Shafer (" Shafer Dep." ), ECF No. 107-3, at 60-61, 69. Mr. Shafer testified that Mr. Kovach had expressed his opinion on seniority to him " hundreds of times." Shafer Dep., at 61.

Local 205 was scheduled to hold a meeting on May 1, 2011 regarding the proposals for the new contract, including the proposal that would allow Turner Dairy to change a route from 5-8s to 4-10s without putting it up for bid. DSOF, at ¶ 15. At such meetings, a " strike vote" is held, where the attending Union members vote to accept or reject the proposed contract terms as a package deal. Id. at ¶ ¶ 16, 18. Union members may also comment on specific proposals. Id. at ¶ 21. Prior to May 1, 2011, Mr. Kovach told Mr. Shafer that he might not be able to attend the meeting and gave Mr. Shafer a signed and dated piece of paper reading: " I don't agree with

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the changes at the proposal." [4] Id. at ¶ 24. Mr. Kovach did not attend the May 1, 2011 meeting. Id. at ¶ 33. He remained at home with his wife, who had recently suffered an eye injury. Id. at ¶ 34. At the meeting, the attending Union members voted unanimously (52 to 0) to reject management's proposals and authorize a strike. Id. at ¶ 39. Mr. Kovach's paper vote was not counted. Id. at ¶ 27.

The next morning, Mr. Kovach and Mr. Shafer were in the offices of Turner Dairy. Id. at ¶ 40. Mr. Kovach asked Mr. Shafer what happened at the meeting with regard to the contract proposal and the seniority issue. Id. Mr. Shafer responded by telling Mr. Kovach to " shut the f--k up," and told Mr. Kovach he was " tired of your sh-t," and had been " hearing it for fifteen years," id. at ¶ 41, adding " let's go down over the hill right now," which Mr. Kovach and Paul Smith (" Mr. Smith" ), another driver who was present, interpreted as an invitation to a physical altercation. Id. at ¶ 50; PSOF, at ¶ 34; Deposition of Paul Brad Smith (" Smith Dep." ), ECF No. 107-7, at 27. Mr. Kovach said, " I have the right to express my views on union business," to which Mr. Shafer retorted, " I have the right to express my views too, go f--k yourself," and said that if Mr. Kovach cared what happened, he should have attended the meeting. DSOF, at ¶ ¶ 46-47; PSOF, at ¶ 40. Mr. Kovach spoke with Mr. Lickert about the incident and told him that he should remove Mr. Shafer as Steward. PSOF, at ¶ ¶ 54, 59; DSOF, at ¶ 68. He also reported the confrontation to Turner Dairy. DSOF, at ¶ 61; PSOF, at ¶ 52.

Both Mr. Kovach and Mr. Shafer testified that prior to May 2, 2011, they had little interaction and had never had a personal disagreement. Deposition of Nick Kovach (" Kovach Dep." ), ECF No. 107-2, at 100-01; Shafer Dep., at 51-52. But after that, their relationship quickly escalated into daily adversity. According to Mr. Kovach:

[f]rom when this incident began May 1 up until the day that I quit, I was harassed by [Mr. Shafer] on a daily basis every day, telling me to go f--k myself, calling me a m--f--r, threatening me every day. It was badgering every day in the drivers' room, relentless, every day.

Kovach Dep. at 174. Mr. Shafer admitted that problems were occurring between himself and Mr. Kovach on a daily basis. Shafer Dep., at 99-100. Mr. Smith also testified that " [t]hey would bicker every day like two little kids in a playground. Probably every time they seen each other, put it that way . . . Every day Greg would say, good morning, Nick, how you doing, good old buddy, and Nick would just be mad and say don't talk to me." Smith Dep., at 17-18, 20. Lou Palmer (" Mr. Palmer" ), the Turner Dairy morning supervisor, testified that the two would argue every day in the drivers' room before they left for their routes. Deposition of Lou Palmer (" Palmer Dep." ), ECF No. 120-18, at 6-7. Robert Young, also a Turner Dairy driver, testified that he recalled Mr. Shafer mocking Mr. Kovach, and that discussion of the issues between Mr. Shafer and Mr. Kovach " was a regular occurrence in the break room because it was an active situation." Deposition of Robert

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Young (" Young Dep." ), ECF No. 120-13, at 40-41, 46.

On May 8, 2011, Local 205 held a ratification meeting, where the attending Union members voted on whether to accept or reject the proposed contract. DSOF, at ¶ 55. Mr. Kovach attended that meeting, spoke out in protest against the provision allowing Turner Dairy to change a route from 5-8s to 4-10s without first putting it up for bid, and voted against the contract. Id. at ¶ ¶ 56, 59. The Union members voted to ratify the proposed contract by a count of 50 to 2. Id. at ¶ 57.

In response to Mr. Kovach's complaint, Mr. Lickert organized a meeting on May 26, 2011, between himself, Mr. Shafer, Mr. Kovach, and John Winters (" Mr. Winters" ), Local 205's Business Agent, at a local Eat N' Park restaurant. Id. at ¶ ¶ 70-71; Deposition of John Winters (" Winters Dep." ), ECF No. 107-5, at 12-13. Mr. Kovach related his version of the events of May 2, 2011, and reasserted his demand that Mr. Shafer be removed as Steward. DSOF, at ¶ ¶ 72-73, 77-78. Mr. Shafer admitted that the argument had taken place, and that he had lost his temper with Mr. Kovach. Id. at ¶ 75; PSOF, at ¶ 77. Mr. Kovach testified that Mr. Shafer also said, " If you would come to me like a man, and put your big boy pants on, we could have resolved this." Kovach Dep., at 158. Mr. Lickert said that he would not remove Mr. Shafer unless Mr. Kovach submitted a petition signed by 51 percent of the Union members, as provided by the Local 205 by-laws.[5] DSOF, at ¶ ¶ 79-80. He told Mr. Shafer and Mr. Kovach to " knock it off'' and concluded the meeting. Id. at ¶ 85-86.

On May 30, 2011, Mr. Kovach sent a letter to Mr. Lickert, purporting to summarize what happened at the May 26, 2011 meeting, calling Mr. Shafer a substandard Union representative, again requesting that he be removed as Steward, and essentially questioning what kind of an outfit Mr. Lickert was running. ECF No. 107-12. Mr. Kovach also included in the letter that since the May 2, 2011 incident, Mr. Shafer was now greeting him daily with, " Hi, Nick, how the f--k are ya?" Id. Mr. Kovach warned Mr. Lickert that he would ultimately be responsible if " this situation continues to escalate and becomes volatile." Id.

Mr. Lickert responded to Mr. Kovach on June 3, 2011, in a letter copied to Mr. Shafer. ECF No. 107-13. He wrote that he would not tolerate a Union member harassing a Steward on a daily basis, and that " You seem to feel you can say anything at any time and the Steward is obligated to continue to listen to you and respond in a manner you want . . . your behavior has probably created this situation." Id. Mr. Lickert continued:

Even if I did remove Brother Shafer from the position of Union Steward (which I have no intention of doing), that would not change anything. You would only start on the new Steward with your same complaints and after a period of time we would be back in this same position. If you would like a four (4) ten (10) hour route with weekends off, I say bid on one and when your seniority prevails you will receive it.

Id. He concluded with; " [I]f something escalates or becomes volatile, you as a

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grown man and father are responsible. I have not and will not condone nor encourage any further action on either of your parts! . . . P.S. Nick, there is an old saying -- it is better to remain silent and be thought foolish than to open your mouth and remove all doubt." Id.

Mr. Kovach claims that was not the end of the affair. He alleges that on August 16, 2011, while he was in the Turner Dairy parking lot, Mr. Shafer drove at him in his truck, causing him to jump out of the way and to be hit with rocks. PSOF, at ¶ 111-13. According to Mr. Kovach, a similar incident occurred again on September 27, 2011. Id. at ¶ 119. On or around the first week of October 2011, Turner Dairy President Chuck Turner (" Mr. Turner" ) called Mr. Winters twice about Mr. Shafer's behavior. DSOF, at ¶ 105. At his deposition, Mr. Turner testified that he told Mr. Winters that he couldn't " get Greg to stop acting like he's in junior high," that Mr. Shafer was calling Mr. Kovach " Nicholas" instead of " Nick," asking him " how the f--k are you," and " swearing and acting like a thirteen year old." Deposition of Chuck Turner (" Turner Dep." ), ECF No. 107-6, at 136-37, 176-78. According to Mr. Turner, Mr. Winters was aware of the daily verbal sparring between the two men and agreed that Mr. Shafer's conduct needed to stop. Id. at 123, 135-36. In their second conversation, Mr. Turner told Mr. Winters he believed Mr. Shafer had " finally gotten the message." Id. at 181-82.[6]

But in Mr. Kovach's version of events, Mr. Shafer had not gotten the message. Mr. Kovach says that on October 27, 2011, as he was driving to work, Mr. Shafer

raced up behind me flashing his lights, revving his engine, and he is a couple of inches off of my bumper, flashing his high beams, racing his engine. Then he passed me on the left, on the double yellow line. Then he goes in front of me and jams on his brakes and he keeps jamming on his brakes to try to get me to wreck into the back of him. That went on several hundred yards.

Kovach Dep., at 177-78. Mr. Kovach testified that he immediately confronted Mr. Shafer about the incident and then resigned from Turner Dairy that same day, fearing that his life was in ...

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