United States District Court, W.D. Pennsylvania
Paradise Baxter District Judge
Relevant Procedural History
Steven Starcher brings this action pursuant to Section 301 of
the Labor Management Relations Act, 29 U.S.C. § 185
("LMRA"), and the Family Medical Leave Act, 29
U.S.C. § 2615(a) ("FMLA"), against Defendants
Ameridrives International ("Ameridrives" or
"the Company"); The United Steel, Paper and
Forestry, Rubber, Manufacturing Energy, Allied Industrial and
Service Workers International Union, AFL-CIO-CLC
("International Union"); and The United Steel,
Paper and Forestry, Rubber, Manufacturing Energy, Allied
Industrial and Service Workers International Union,
AFL-CIO-CLC Local 3199-10 ("Local Union").
operative complaint [ECF No. 69, Amended Complaint] contains
three counts: (I) a claim against both Defendants
International Union and Local Union, under Section 301 of the
LMRA, for breach of their respective duty of fair
representation; (II) a claim against Defendant Ameridrives,
under Section 301 of the LMRA, for breach of the terms of its
collective bargaining agreement ("CBA") with the
Defendant Unions; and (III) a claim against Defendant
Ameridrives for terminating Plaintiff in violation of the
FMLA. As relief for his claims, Plaintiff seeks declaratory
relief and monetary damages.
parties have completed discovery and now pending before the
Court are the following: Defendant Local Union's motion
for summary judgment [ECF No. 76]; Defendant International
Union's motion for summary judgment [ECF No. 77]; and
Defendant Ameridrives' motion for partial summary
judgment as to Count II, only [ECF No. 81]. Plaintiff has
filed a brief in opposition to each of Defendants'
motions [ECF Nos. 89, 94], Defendants have filed reply briefs
[ECF Nos. 101, 103, 106], and Plaintiff has filed a sur-reply
brief to Defendant Ameridrives' reply [ECF No. 111]. Also
pending before the Court is Defendant Unions' joint
motion to strike Plaintiffs "sham affidavit" [ECF
No. 102],  to which Plaintiff has filed a response
[ECF No. 109]. This matter is now ripe for consideration.
Relevant Undisputed Material Facts
was a member of both the Local Union and the International
Union throughout his employment with Ameridrives. (Id- at
¶ 2; ECF No. 80, at ¶ 3). The Defendant Unions and
Ameridrives were parties to a Collective Bargaining Agreement
("CBA") that governed the terms and conditions of
employment for bargaining unit employees. (ECF No. 80, at
¶ 11; ECF No. 84-8). Under the CBA, Ameridrives had the
right to suspend or discharge employees for proper cause.
(ECF No. 80, at ¶ 12). The CBA also established a
grievance and arbitration procedure for disputes concerning
the interpretation and application of the CBA. (Id.
at ¶ 13). In addition, during his employment with
Ameridrives, Plaintiff was subject to Ameridrives' Work
Rules/Code of Conduct, which, inter alia, (and as
relevant here) made it a serious offense to remove company
property without authorization. (ECF No. 83, at ¶¶
began his employment with Defendant Ameridrives in March 2013
as a maintenance electrician at its facility in Erie,
Pennsylvania. (ECF No. 83, at ¶ 1). Ameridrives'
manufacturing process includes an electronic discharge
machine ("EDM"), which produces scrap brass wire
("EDM scrap") that was collected in barrels inside
the facility to be transported to a scrap facility. (ECF No.
80, at ¶ 47). When Plaintiff began his employment with
Ameridrives, he replaced Ernie Robinson
("Robinson"), who had regularly engaged in the
practice of transporting and selling the EDM wire scrap to a
scrap dealer, and delivering the sale proceeds to the plant
manager at the time, Ken Gebhardt ("Gebhardt").
(ECF No. 90, at ¶¶ 61-15)When Gebhardt
retired, his replacement, Steven Sanders
("Sanders") instructed Robinson to continue the
practice. (Id. at ¶¶ 79-80).
Plaintiff was hired, Robinson told him about the EDM wire
scrapping practice and demonstrated how it worked.
(Id. at ¶¶ 83-86). Thereafter, at
Sanders' direction, Plaintiff continued the practice of
selling the EDM wire scrap to a scrap dealer. (ECF No. 80, at
¶¶ 48-49; ECF No. 83, at ¶ 43-44). A typical
load of scrap consisted of approximately three or four
barrels, weighing about 80 pounds each, which were loaded
onto Plaintiffs personal vehicle with the Company's fork
truck. (ECF No. 80, at ¶¶ 50-51). Plaintiff then
transported and sold the scrap to Lincoln Recycling at its
facility in Meadville, Pennsylvania, near Plaintiffs home.
(Id. at ¶ 52; ECF No. 83, at ¶ 36).
Plaintiff was not paid an hourly wage by the Company for
recycling the EDM wire scrap. (ECF No. 80, at ¶ 57).
April 2016, Company supervisor Jon Muroski
("Muroski") loaded EDM wire scrap on his truck to
take to a local scrapyard, but Sanders asked Muroski to
remove the barrels of scrap from his truck so that Plaintiff
could come in and transport the scrap to the scrapyard.
(Id. at ¶ 66). Ameridrives' General
Manager, Jack Paluh ("Paluh") later learned that
Plaintiff was present at the Erie facility to take EDM wire
scrap to be recycled while he was on FMLA leave. (ECF No.
104, at ¶ 22). This prompted Ameridrives to investigate
the circumstances regarding the recycling of EDM wire scrap.
(Id. at ¶ 23).
10, 2016, Robert Finzel ("Finzel"),
Ameridrives' Operations Manager, and Amy Popoff
("Popoff), Ameridrives' Division HR Manager, spoke
with Sanders regarding his understanding of the EDM wire
scrap process. (ECF No. 83, at ¶ 32). During the
meeting, Sanders stated that he was aware of the practice,
but falsely stated that he didn't ask Plaintiff to do so,
except on one occasion (ECF No. 90, at ¶¶ 96, 98).
Sanders also claimed that he was "never given any check
or money from [Plaintiff]... [and] has no idea where it might
be going." (ECF No. 90, at ¶ 97; ECF No. 83, at
same date, Finzel and Popoff also had a meeting with
Plaintiff about the EDM wire scrap process, at which
Plaintiff refused union representation. (ECF No. 83, at
¶¶ 34-35). During this meeting, Plaintiff stated
that he had been recycling the EDM wire scrap for "a
couple of years, always at [Sanders'] request." [ECF
No. 80-24]. Plaintiff explained that the sale proceeds were
paid by check to Plaintiffs personal business, Crawford
County Diversified Services, LLC ("CCDS"), because,
according to Plaintiff, he could receive an extra $.10 per
$1.00 for the scrap by having it paid to a business, rather
than an individual. (ECF No. 80, at ¶ 55; ECF No. 83, at
¶¶ 37-38). According to Plaintiff, he then gave the
proceeds, in cash, along with the receipt from the scrap
yard, to Sanders. (ECF No. 83, at ¶ 41; ECF No. 90, at
¶ 111). Plaintiff estimated that the proceeds were $500
to $600 each time, and stated that he understood the money
would be used for shop items. (ECF No. 90, at ¶¶
111-112; ECF No. 80, at ¶ 69). Plaintiff claimed that
the only personal benefit he received from the practice was
occasional gas money from Sanders. (ECF No. 93, at ¶ 58;
ECF No. 80-24).
13, 2016, Plaintiff produced Purchase History Registers from
Lincoln Recycling ("Lincoln"), confirming that EDM
wire scrap was recycled by CCDS. (Id. at ¶ 48).
The register reflected sales by CCDS to Lincoln of a total of
6, 792 pounds of EDM wire scrap, on 23 different dates from
November 5, 2013, through April 14, 2016, with payments
totaling $10, 380.20. (ECF No. 80, at ¶ 73). No. records
reflecting the receipt or disbursement of any funds from the
sales were produced (Id. at ¶¶ 60-61), and
no proceeds from the EDM wire scrapping process were ever
recovered by the Company (ECF No. 83, at ¶ 52).
16, 2016, Finzel, Popoff, and Aimee Jones
("Jones"), the Company's Human Resources
Generalist, met with Plaintiff and three Local Union officers
who were members of the Local Union's grievance
committee: Jim Fisher ("Fisher"), President; Jack
King ("King"), Recording Secretary; and Billy Moore
("Moore"), Chief Griever. (ECF No. 83, at ¶
50; ECF No. 93, at ¶¶ 6-8). Prior to the meeting,
King informed Plaintiff that the union would be at the
meeting to represent him and save his job. (ECF No. 81, at
¶ 51). However, it was common knowledge that Plaintiff
and King were not friendly, and that King had previously
reported Plaintiff to management for purported work
violations on a number of occasions. (ECF No. 93,
at¶¶ 128-137, 144).
meeting of May 16, King reported that he had seen Plaintiff
on a jitney one night and reported it to a supervisor, who
made Plaintiff stop operating it immediately. (Id.
at ¶ 159). King also questioned Plaintiffs assertion
that he had been instructed to pick up EDM wire scrap, asking
"why would they call you to come all the way to
Erie?" (Id. at ¶ 160). In addition, Fisher
asked why an hourly employee would be asked to take the EDM
wire scrap to the recycling company and questioned if
Plaintiff would be entitled to workers' compensation if
he got hurt while coming in for the EDM wire scrap.
(Id. at ¶¶ 161-162). Fisher also mentioned
that, though he had heard about a shop fund, and thought
there was one, he didn't have first-hand knowledge of a
fund's existence. (ECF No. 80, at ¶ 92). At some
point, Finzel reached the conclusion that Sanders and
Plaintiff had colluded with respect to the EDM wire scrap,
(Id. at ¶ 90). The Company contacted the local
police department to initiate a criminal investigation into
the EDM wire scrapping process. (Id. at ¶ 93).
Company ultimately terminated Plaintiffs employment as of May
19, 2016, by letter from Jones, dated May 20, 2016 [ECF No.
80-30]. The letter did not specify a reason for the
termination. (Id.). Sanders was also fired as of the
same day, in the same manner. [ECF No. 80-31]. On May 24,
2016, the Local Union filed a grievance noting the reason for
Plaintiffs termination as'"code of business conduct
violation (theft), " and challenging the action as an
"unjust termination." [ECF No. 80-32].
31, 2016, International Union Staff Representative Edward
Kemick ("Kemick") met with Plaintiff, King, Fisher,
and Moore to discuss the grievance. (ECF No. 80, at
¶¶ 101). As Staff Representative, Kemick was
responsible for handling the grievance and was the only
person empowered to determine whether to arbitrate the
grievance. (Id. at ¶¶ 15-16). Though
Kemick had not met Plaintiff previously, he learned about the
lack of goodwill between Plaintiff and King in connection
with his review of the grievance, but did not know the
reason(s) why they were not friendly. (ECF No. 93, at
¶¶ 141-42). As the recording secretary, King was
responsible for taking notes on behalf of the Local ...