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Moore v. Air Methods, Inc.

United States District Court, M.D. Pennsylvania

July 10, 2015

ROBERT W. MOORE, Plaintiff
v.
AIR METHODS, INC. and PHPA OPEIU, LOCAL 109, Defendants

For Robert W. Moore, Plaintiff: Donald P. Russo, LEAD ATTORNEY, Donald P. Russo, Attorney at Law, Bethlehem, PA.

For Air Methods, Inc., Defendant: James C. Oschal, LEAD ATTORNEY, Rosenn, Jenkins & Greenwald, Wilkes Barre, PA; Jonathon M Watson, Patrick R Scully, LEAD ATTORNEYS, Sherman & Howard, LLC, Denver, CO; Raymond M Deeny, LEAD ATTORNEY, Denver, CO.

For PHPA OPEIU Local 109, Defendant: Claudia Davidson, Law Offices of Claudia Davidson, Pittsburgh, PA.

MEMORANDUM OPINION

Robert D. Mariani, United States District Judge.

I. Procedural History

On March 4, 2014, Plaintiff, Robert W. Moore, brought suit against Air Methods, Inc. and Office & Professional Employees International Union, Local 109 (" Local 109" ), alleging that he was wrongfully discharged by his employer, Air Methods, and that Local 109 breached its duty of

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fair representation owing to him by its failure to process a grievance on his behalf to final and binding arbitration under the terms of the Collective Bargaining Agreement between Air Methods and Local 109 and, further, by failing to act in a manner consistent with its duty of fair representation. (Compl., Doc. 1, Ex, A).

After the Plaintiff's Complaint was removed to federal court and answers were filed by both Air Methods and Local 109 (Docs. 4, 5), Air Methods filed a Motion for Judgment on the Pleadings (Doc. 10). Air Methods argued that the Plaintiffs claim is barred by the six-month statute of limitations adopted by the Supreme Court in DelCostello v. International Brotherhood of Teamsters, and made applicable to hybrid claims such as those brought by the Plaintiff in this case under the Railway Labor Act, 45 U.S.C. § 158-188, by the Third Circuit in Sisco v. Conrail. (See Docs. 10, 11 (citing DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281,76 L.Ed.2d 476 (1983); Sisco v. Conrail, 732 F.2d 1188, 1193 (3d Cir. 1984))).

This Court, by Order dated June 26, 2014 (Doc. 19), converted Defendant Air Methods' Motion for Judgment on the Pleadings to a Motion for Summary Judgment in accordance with Fed.R.Civ.P. 12(d) and modified its prior Order granting a stay of discovery to allow a period of time for discovery of any material pertinent to the Defendant's Motion. At the conclusion of discovery, Local 109 filed a Motion for Summary Judgment (Doc. 25), as did Air Methods (Doc. 30).

Air Methods also filed a Motion for Sanctions (Doc. 33), in which Local 109 sought to join. (Doc. 40). By Order dated December 17, 2014, the Court granted Local 109's Motion to join in the Motion for Sanctions of Air Methods. (Doc. 43).

The Motions for Summary Judgment brought by Air Methods and Local 109 have been fully briefed and are ripe for disposition. Accordingly, for the reasons that follow, the Motions for Summary Judgment of Defendant, Air Methods, and Defendant, Local 109, will be granted. Defendants' Motion for Sanctions shall be addressed by separate memorandum.

II. Statement of Undisputed Facts

Each Defendant submitted a Statement of Undisputed Facts as to which it contends there is no genuine issue for trial, as required by Local Rule 56.1, (Docs. 26, 32).

Plaintiff, in turn, submitted a Response to each statement (Docs. 28, 37).

Each Defendant's Statement of Material Facts will be separately treated. There is significant overlap since this is a hybrid wrongful discharge/breach of the duty of fair representation action with both Local 109 and Air Methods seeking summary judgment in their favor on the basis that Plaintiffs suit is time-barred by the applicable six-month statute of limitations.

A. Statement of Material Facts of Local 109 and Plaintiffs Response

Plaintiff, Robert Moore, was employed by Air Methods, an air transportation business specializing in air ambulance operations, as a helicopter pilot beginning in 2004. (Local 109's St. of Mat. Facts (" Local 109 SOMF" ), Doc. 26, ¶ ¶ 1, 3-4).

Defendant, Local 109, is a labor organization and the collective bargaining representative of certain pilots employed by Air Methods. ( Id. at ¶ ¶ 5-6). The Plaintiff was a member of the bargaining unit represented by Local 109. ( Id. at ¶ 7).

Air Methods and Local 109 had a collective bargaining relationship and had been parties to a number of collective bargaining agreements, including one which was effective from December 14, 2011 through December 31, 2013). ( Id. at ¶ 8). Under that Collective Bargaining Agreement (" CBA" ), the Plaintiff was subject to all

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rules, regulations and orders of Air Methods. ( Id. at ¶ 9). The CBA provided, in Section 9.1, that " [p]ilots may be subject to disciplinary action, up to and including discharge for just cause including violation or infraction of Company rules or policies, or for violating this Agreement." ( Id. at ¶ 10).

The CBA contains a three-step procedure that sets forth how grievances are to be processed and further provides time limits within which a grievance to be filed over a pilot's discharge must be filed as well as an agreement that any grievance not filed within those time limits is waived and deemed null and void. Specifically, Sections 6.2 and 6.3.1 of the CBA provide:

Section 6.2:

(a) In the event a non-probationary Pilot who has been discharged wishes to grieve such discharge, the grievance must be presented at Step 2 within seven (7) calendar days after the termination.

(Local 109 SOMF, ¶ 12).

Section 6.3.1 then states:

(b) Any grievance not presented and processed in the manner, and within the time limits set forth above, shall be waived and deemed null and void provided, however, at any time in advance of the expiration of such time limit the parties may agree, by mutual written consent, to extend any time limit for a specified period of time. Compliance with all time limits specified in this Article shall be determined by the date of mailing as established by postmark.

( Id. ; CBA, Doc. 26-1, Ex. 2, § 6.3.1).

Under the provisions of Article 6, Section 6.1 of the CBA, an unresolved grievance may be submitted by the Union at the System Board of Adjustment, where the grievance, if unresolved by the Board, may be submitted to an arbitrator selected through the Federal Mediation and Conciliation Service. (Local 109 SOMF, ¶ ¶ 13, 14).

The Plaintiff in this case was incarcerated in the Carbon County Prison from December 3, 2011 until December 28, 2011 following a domestic dispute with his then-wife. ( Id. at ¶ 15). Plaintiff was not scheduled to work from December 3, 2011 through December 8, 2011, but was scheduled to return to work on December 9, 2011. ( Id. at ¶ 16). The Plaintiff, however, did not report to work on December 9, 2011 or any other date during his incarceration. ( Id. at ¶ 17).

By December 12, 2011, the Plaintiff was aware that he had failed to report for work for three consecutive days. ( Id. at ¶ 18). Plaintiff learned that his employment had been terminated on December 29, 2011 during a phone call with Larry Murphy, Program Manager for Air Methods. The phone call occurred after the Plaintiffs release from incarceration. ( Id. at ¶ 19). Plaintiff received a termination letter from Air Methods which was forwarded to him by his estranged wife. (Local 109 SOMF, ¶ 20). He received the letter " within a few days of his release from incarceration." ( Id. ) The termination letter issued by Air Methods to the Plaintiff dated December 13, 2011 stated that Plaintiff had been discharged for failing to report off from work to his supervisor for three consecutive days. ( Id. at ¶ 21). The Air Methods Employee Handbook on this subject provides as follows:

Employees unable or unavailable to work due to illness are required to call their immediate supervisor or Administrative Assistant if applicable. If the employee is unable to call, someone else should call. Employees are expected to call in every day of an absence unless prior arrangements have been made with their supervisor. Failure to call for three or more consecutive days will be

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considered a voluntary resignation or job abandonment and supporting documentation will be sent to the employee advising them of their separation.

( Id. at ¶ 22).

The Plaintiff contacted Local 109 about his termination by e-mail during the first week of January of 2012. ( Id. at ¶ 23).

On January 5, 2012, at Plaintiff's request, the Union filed a grievance on his behalf with regard to his termination. The grievance alleged that the Employer had discharged the Plaintiff without just cause in violation of the Collective Bargaining Agreement. (Local 109 SOMF, ¶ 24). The Union then advanced the grievance through the third step of the contractual procedure. The Employer denied the grievance at each such step. ( Id. at ¶ 25). Immediately upon receipt of the Employer's third-step denial of the grievance on January 27, 2012, the Union sent the Employer a letter requesting that the Plaintiff's grievance be submitted to the System Board of Adjustment. ( Id. at ¶ 26). The Union's Executive Board, however, on the advice of counsel, ultimately decided not to pursue the Plaintiff's grievance before the System Board of Adjustment or in arbitration. ( Id. at ¶ 27). Plaintiff, in responding to this paragraph, states that he is " not in a position to admit or deny the allegations" because the Defendants asserted the attorney/client privilege in refusing to disclose any specific discussions between the Executive Board of the Union and its counsel. However, Plaintiff acknowledges that the deposition of former Union President Dan McDade " indicates that the Union's executive board based their decision on advice of counsel." (Pl.'s Ans. to Local 109 SOMF, ¶ 27).

On April 5,2012, Local 109, through Dan McDade, at the time Local 109's President, sent Plaintiff an e-mail stating, in part:

I regret to inform you that the Union cannot help you further with your grievance for reasons stated in the attached letter which was mailed USPS and certified mail yesterday. I am very sorry but the timeliness of the grievance will not allow any chance of success.

(Local 109 SOMF, ¶ 28).

Attached to McDade's e-mail of April 5, 2012 to Plaintiff was a copy of a letter from Local 109 to ...


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