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Tortorice v. Barnes

United States District Court, E.D. Pennsylvania

June 7, 2018

ANTHONY TORTORICE, SR., Plaintiff,
v.
MICHAEL BARNES, et al., Defendants.

          MEMORANDUM

          GERALD J. PAPPERT, J.

         Anthony Tortorice, Sr. sued the International Alliance of Theatrical Stage Employees Local 8 and its President Michael Barnes, along with his previous employers, the Kimmel Center, Inc. and Elliott-Lewis Corporation, after investigation into his billing practices resulted in his suspension from the Union and loss of employment. The Union, Barnes, the Kimmel Center and Elliott-Lewis contend that Tortorice was fraudulently double-billing his employers, charging both for the same hours. Tortorice claims to the contrary that he was merely “multitasking, ” something he was allowed to do and of which the Defendants were fully aware.

         Tortorice brings “hybrid” claims under Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, against the Kimmel Center and Elliott-Lewis for breaching their Collective Bargaining Agreements with Local 8, and against the Union for breaching the duty of fair representation. He also alleges that the Union and Barnes retaliated against him in violation of the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. §§ 411, 529.

         Defendants move for summary judgment on all claims. The Kimmel Center, Elliott-Lewis and the Union argue that the Section 301 claims are barred by the applicable six-month statute of limitations. They also contend they are entitled to judgment on the merits of those claims because Tortorice has not presented any evidence that Elliott-Lewis or the Kimmel Center lacked just cause for their actions or that the Union acted arbitrarily or capriciously when it decided not to pursue a grievance on his behalf. Finally, Barnes and the Union contend that the LMRDA claim fails because Tortorice has not established any causal connection between the exercise of his rights as a union member and the Union's adverse actions.

         After thoroughly reviewing the record and hearing oral argument, the Court grants the Kimmel Center and Elliott-Lewis' Motions and grants in part and denies in part the Motion filed by the Union and Barnes. Judgment is entered in favor of the Kimmel Center and Elliott-Lewis. Judgment is also entered in the Union's favor on the claims alleging breach of the duty of fair representation. The jurors will decide Tortorice's LMRDA claim against Barnes and the Union.

         I

         A

         Tortorice has been a member of the Union since 1984, serving as its Vice President under Barnes for nine years. (Local 8 Mot. for Summ. J., Ex. A (“Tortorice Dep.”) at 14, 16-17, ECF No. 54; Resp. to Local 8 Mot., Ex. P at ¶¶ 1, 3, ECF No. 62; Compl. at ¶¶ 9-10, ECF No. 1.) For approximately twenty years, Tortorice was the Head Carpenter and Steward at the Merriam Theater, which the Kimmel Center acquired in 2009. (Tortorice Dep. at 15-17, 22; Local 8 Mot., Ex. H (“Dillon Dep.”) at 8.) A CBA between the Kimmel Center and the Union governed the terms and conditions of Tortorice's employment at the Merriam. (See Elliott-Lewis Mot. for Summ. J., Ex. J (“Kimmel CBA”), ECF No. 56; Tortorice Dep. at 19.) The Kimmel CBA provides that an employee may be disciplined and discharged for just cause, including but not limited to dishonesty and “the intentional submittal of false reports and time sheets.” (Kimmel CBA at 23.) It states further that grievances shall be submitted in writing by the employee or the Union within seven calendar days. (Id. at 24.) If the grievance is not satisfactorily resolved within ten days of filing, the Union is permitted to treat the grievance as denied and proceed to arbitration. (Id.)

         Starting in 2008, in addition to his role at the Merriam, Tortorice worked for Elliott-Lewis as union Steward in the Pennsylvania Convention Center. (Tortorice Dep. at 35, 38, 57.) The Convention Center is managed by SMG, a management company, and Elliott-Lewis serves as the labor and payroll service provider. (Id. at 36- 41; Elliott-Lewis Mot., Ex. B (“Gentile Dep.”) at 7; Customer Satisfaction Agreement (“CSA”) at 7.) Tortorice's employment at the Convention Center was governed by a separate CBA between the Union and Elliott-Lewis as well as a Customer Satisfaction Agreement between the Union, Elliott-Lewis, SMG and the Pennsylvania Convention Center Authority.[1] (See Elliott-Lewis Mot., Ex. C (“Elliott-Lewis CBA”); Customer Satisfaction Agreement.)

         The Elliott-Lewis CBA provides that the employer has the right to replace or dismiss any employee for just cause, including but not limited to dishonesty, theft or criminal conduct. (Elliott-Lewis CBA at 5.) It also states that grievances shall be submitted orally by the employee or the Union to the General Manager within five calendar days. (Id.) If the grievance is not satisfactorily resolved by the General Manager within ten days of the facts giving rise to the grievance, the grievance shall be submitted by the Union in writing pursuant to Step Two of the grievance procedure. (Id.) Elliott-Lewis is required to respond within five calendar days, after which time a meeting is held between the Union and the employer in a good faith attempt to settle the dispute. (Id. at 6.) If the grievance is not satisfactorily resolved within five calendar days of the meeting, either party may proceed to arbitration at Step Three. (Id.)

         The Union's Constitution and By-Laws govern the discipline of members for violations of union rules and provide the procedure for internal appeals of adverse Union decisions. (Local 8 Mot., Ex. F “Constitution & By-Laws.”) The Union may discipline any member who engages in “conduct as is detrimental to the advancement of . . . or as would reflect discreditably upon the [Union.]” (Id. at Art. VIII, Section 1.) Union members are guaranteed a fair trial and the right to present a defense, confront all witnesses and review all the evidence. (Id. at Art. VIII, Sections 2 & 15.) If the member disagrees with the outcome of the trial, appeals may be taken to the International President and then the General Executive Board. (Id. at Art. IX, Section 1.) The Constitution provides that “under no circumstances” may members “resort to outside tribunals” until internal union appeals have been exhausted. (Id. at Art. IX, Section 6.) The By-Laws govern the filing of grievances with employers, stating that members “shall not take action of any kind, whatsoever[, ]” including making a demand on an employer for the redress of grievances “but shall refer such matters to [the Union].” (Id. at Art. X.) If a member fails to comply with this provision, they “shall be suspended.” (Id.)

         B

         In approximately June 2014, pursuant to an agreement between the Union and SMG, Tortorice was guaranteed “a minimum of 40 hours straight time by the [Convention Center] at the steward rate.” (Resp. to Local 8, Ex. A; Local 8 Mot., Ex. C (“Mar. 26 Barnes Dep.”) at 71-73; Tortorice Dep. at 50.) In the spring of 2016, Robert McClintock, SMG's Senior Vice President and Chief Operating Officer, and Barnes began negotiating, among other things, an extension of Tortorice's 40-hour guarantee. (Local 8 Mot., Ex. E (“McClintock Aff.”) at ¶ 3; Resp. to Local 8 Mot., Ex. CC “Union Trial Tr.” at 36-37.) During the course of those negotiations, McClintock became concerned that Tortorice was leaving the Convention Center to work at other venues while he “should have been present and working at the [Convention Center].” (McClintock Aff. at ¶ 4.) In late May, McClintock told Barnes of his concerns and “initiated an investigation into whether Mr. Tortorice was simultaneously working at the [Convention Center] and other venues.” (Id. at ¶ 5; Local 8 Mot., Ex. D (“Mar. 28 Barnes Dep.”) at 12 (“[H]e informed me that . . . Tortorice was working for multiple employers around the city, at the same time[.]”))

         Barnes began to look into Tortorice's conduct as well. (Mar. 26 Barnes Dep. at 103-04, 108.) Around June 27, Barnes obtained records from the Union's Annuity Fund, which showed Tortorice's total earnings and benefit fund contributions. (Mar. 26 Barnes Dep. at 108, 121-22; Mar. 28 Barnes Dep. at 4.) Barnes concluded that Tortorice's contributions evidenced “billing irregularities” and accordingly brought the records to David Kenney, a previous Union benefit trustee, for review. (Mar. 26 Barnes Dep. at 108.) After Kenney reached the same conclusion, Barnes asked Kenney if he would be willing to file charges against Tortorice and Kenney agreed to do so. (Id. at 108-09; Union Trial Tr. at 38.)

         On June 29, based on the fund contribution records, Kenney filed internal union charges against Tortorice for fraudulently submitting duplicative billing for the same hours on the same days to the Convention Center and the Merriam, and of engaging in conduct to conceal his behavior. (Resp. to Local 8 Mot., Ex. X; Mar. 26 Barnes Dep. at 108, 121; Mar. 28 Barnes Dep. at 4-6.) The next day, the Union's Executive Board approved the charges and scheduled Tortorice's trial for July 26. (Resp. to Local 8 Mot., Ex. Y.) At some point thereafter, but before his trial, the Union sought and obtained Tortorice's payroll records from the Kimmel Center and Elliott-Lewis. (See Local 8 Mot., Ex. D at 8 (“As you also know, Local 8 is requesting any payroll, time and attendance etc. information regarding Mr. Tortorice from SMG[.]”); Mar. 28 Barnes Dep. at 4; Union Trial Tr. at 39; Dillon Dep. at 19-21.)

         On July 6, SMG General Manager Lorenz Hassenstein sent Tortorice a letter suspending him from working at the Convention Center pending further investigation into Tortorice's time and attendance records. (Local 8 Mot., Ex. I.) On July 12, Barnes emailed Tortorice stating that “[t]he Local is in the process of scheduling a meeting as outlined in Step 2 of the Grievance procedure.” (Resp. to Local 8, Ex. H.) On July 13, Union counsel Joseph Cleary emailed counsel for Elliott-Lewis confirming that the Union “sent a letter to Mr. Hassenstein requesting a meeting so as to pursue the unions [sic] grievance on behalf of Mr. Tortorice” and seeking an extension, which SMG and Elliott-Lewis granted, of the grievance procedure time limits. (Local 8 Mot., Ex. D at 8.)

         On July 15, Barnes sent Tortorice another email telling him that he was also suspended by the Kimmel Center[2] and that “[t]he union will be representing your interest as outlined in the contract between the parties.” (Resp. to Local 8, Ex. H.) Tortorice “definitively” understood Barnes' email to mean that the Union would be pursuing a grievance on his behalf. (Tortorice Dep. at 115-16.) On July 18, Tortorice sent an email to Cleary, copying Barnes, regarding his understanding that grievances were being filed with both Elliott-Lewis and the Kimmel Center and requesting an update on their status. (Resp. to Local 8 Mot., Ex. L.)

         Tortorice's internal union trial was held on July 26 with Barnes serving as the “prosecution.” (See Union Trial Tr.) Barnes submitted as evidence the fund contribution records as well as 2014 - 2016 payroll records from the Kimmel Center and Elliott-Lewis. The payroll records showed between 18 to 22 hours worked between both venues on various days. (Id. at 41-43.) At the trial, Tortorice relied on his 40hour guarantee with SMG and cross-examined Kenney and Barnes on their motivation for bringing the charges, including personal animus against him. (Id. at 46, 54, 58-60, 98-100.) Tortorice argued that his 40-hour guarantee functioned as a “salary, ” allowing him to be paid for holidays and days off. (Id. at 114-15.) In light of this salary arrangement, Tortorice contended that he was not fraudulently double-billing. Further, Tortorice questioned Barnes about an argument they had over executive board salary increases and stated that he believed the charges and trial were in retaliation for speaking out against Barnes' leadership over the past two years. (Id. at 90-92, 135- 38.) Tortorice was found guilty by the Trial Committee and expelled from the Union for ten years, assessed a $5, 000 fine, put on lifetime probation and suspended from the hall referral list for 4 years.[3] (Local 8 Mot., Ex. L.)

         On July 29 and August 3, Tortorice filed charges with the National Labor Relations Board against the Union, the Kimmel Center, Elliott-Lewis, SMG and the Convention Center Authortiy. He contended that the Union revoked his membership because he “engaged in dissident intraunion activities in opposition to the current Union leadership” and “caused the Pennsylvania Convention Center and the Kimmel Center to suspend [him].”[4] (Elliott-Lewis Mot., Ex. K.)

         On September 10, Tortorice filed an internal union appeal with Matthew Loeb, the International President of the Alliance of Theatrical Stage Employees. (Resp. to Local 8 Mot., Ex. P.) He argued that the Union subjected him to intolerable abuses in retaliation for opposing current leadership. (Id.) His appeal recounted a history of recent opposition to Barnes leading up to his charges and trial, and refers to his suspension letters from the Kimmel Center and Elliott-Lewis. Grounds for his appeal included Barnes' allegedly unfair conduct, the unfounded nature of the charges, the unfair nature of his trial, and the excessiveness of the Union's punishment. Loeb affirmed the Trial Committee's decision on January 6, 2017. (Resp. to Local 8 Mot., Ex. Q.) On February 3, Tortorice appealed Loeb's decision to the General ...


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