Bruno v. United Steelworkers of America, No. 91-CV-287.

• Court: United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
• Writing for the Court: SAM H. BELL
• Citation: 784 F. Supp. 1286
• Parties: Anthony BRUNO, Jr., Plaintiff, v. UNITED STEELWORKERS OF AMERICA, et al., Defendant.
• Docket Number: No. 91-CV-287.
• Decision Date: 29 January 1992

784 F. Supp. 1286

Anthony BRUNO, Jr., Plaintiff,
v.
UNITED STEELWORKERS OF AMERICA, et al., Defendant.

No. 91-CV-287.

United States District Court, N.D. Ohio, E.D.

January 29, 1992.

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Barbara J. Angelo, Niles, Ohio, Jacklynn M. Zarnick, Canfield, Ohio, for plaintiff Anthony Bruno, Jr

Mark A. Rock, Suellen Oswald, Schwarzwald, Robiner & Rock, Cleveland, Ohio, for defendant United Steelworkers of America.

Michael G. Marando, Hoppe, Frey, Hewitt & Milligan, Warren, Ohio, for defendant Amweld Bldg. Products, Inc.

ORDER

SAM H. BELL, District Judge.

Currently pending before the court in the above-captioned matter are four motions for summary judgment. As the facts which have given rise to plaintiff's claims and defendants' contentions are intertwined so, too, are the elements of analysis which pertain to any ruling on the motions presented. It is the intention of this court to address each of the motions presented in a single opinion rather than in separate findings. To do so necessitates some reflection of precedent opinion and, as well, some quotation from the record. The readers' patience is requested in perusing a

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combination ruling. It is hoped that such an opinion in form may be superior to four independent opinions with a necessary redundancy in fact and legal analysis

Plaintiff filed his complaint in this cause on February 14, 1991. Count One of the complaint is premised upon an alleged breach of a collective bargaining agreement by plaintiff's employer, defendant Amweld Building Products, Inc. (Amweld), and upon breach of the duty of fair representation on the part of defendant United Steelworkers of America (the Union). Plaintiff seeks recovery under these theories pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a). Count Two alleges that Amweld failed to provide notice to plaintiff of continuation coverage under a health and pension plan in violation of the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA), 29 U.S.C. § 1161 et seq.

On September 27, 1991, Amweld moved for summary judgment on Count Two of plaintiff's complaint. Plaintiff filed a cross motion for summary judgment as to the same count on November 1, 1991. On October 17, 1991, the Union filed a motion for summary judgment as to plaintiff's claim against it for breach of the duty of fair representation under Count One. Finally, on November 12, 1991, plaintiff filed a motion to vacate the arbitrator's opinion and award rendered on November 30, 1990; this motion is styled a "Motion for Summary Judgment on Request for Order Vacating Arbitrator's Award." All motions have been opposed by response briefs.

The court will proceed, first, with an analysis of the factual background as revealed by the evidence in the record submitted to date. In this portion of the order, we shall also include an examination of the arbitration decision itself. The court will then address each motion separately, beginning with plaintiff's motion to vacate the arbitrator's award, then the Union's motion for summary judgment, and finally the cross motions for summary judgment on Count Two.

I. BACKGROUND

Plaintiff and the Union filed a total of four grievances against Amweld during the winter of 1990. The first, AWN-3-90, was filed with Amweld on January 29, 1990, and stems from at least two incidents involving one Tom Brest, Amweld's Production Superintendent, on January 26 and 29, 1990. It would appear that in late January Brest informed plaintiff that he was required to view a safety film along with other employees. Plaintiff disagreed, and the grievance complains that Brest threatened plaintiff with insubordination and that "the Union feels Brest is unstable and his attitude will lead to further unnecessary confrontations." Union's Exhibit B to Motion for Summary Judgment. Plaintiff and the Union demanded that Amweld post laws requiring the mandatory viewing of films and that Brest cease verbal abuse. Id. Amweld denied the grievance for the stated reason that it was not covered under the terms of the CBA. Id. This grievance was not pursued to arbitration and is not otherwise involved in the instant cause.

On February 2, 1990, Amweld issued plaintiff written notice of discipline stemming, inter alia, from the altercation between plaintiff and Brest. Brest called plaintiff and members of the local Union into his office and rendered the discipline in person, while also giving plaintiff a written "personal report." This personal report charged plaintiff with "egregious misconduct, loafing, being uncooperative and inattentive, misrepresentation, a pattern of blatant, insubordinate, disrespectful attitude and conduct towards Company supervision." Plaintiff's Deposition I at 57-58.¹ This personal report gave plaintiff a five-day suspension with intent to discharge, effective February 5 through 9. Id. February 2 fell on a Friday; February 5 on a Monday.

A grievance protesting this discipline was not filed immediately. Rather, suspension hearings were held on two separate days, February 9 and February 13, pursuant

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to the collective bargaining agreement and at the request of plaintiff. Willie Hall, Union representative, attended these meetings on behalf of plaintiff and the Union. Plaintiff's Deposition I at 27. At the February 9 hearing, plaintiff was given an opportunity to set forth his version of what happened between him and Brest, i.e., to state all facts which he believed to be relevant to the personal report. Id. at 78, 82-83. Plaintiff also gave his side of the story at the February 13 meeting. Id. at 83-84. Each hearing lasted approximately one and one half hours. Id. at 82

At the hearing on February 13, plaintiff was presented with an offer of reinstatement by Amweld. Complaint at ¶ 26. This offer was in the form of a "Reinstate Agreement" and reads as follows:

The parties agree that Tony Bruno's employment with Amweld Building Products would be reinstated based upon the following terms and conditions. This agreement is the result of the disciplinary action issued Feb. 2, 1990.

The period from the date of Mr. Bruno's suspension to the date of reinstatement will be recorded as a disciplinary suspension.

Reinstatement is without back pay or loss of seniority.

Mr. Bruno acknowledges that his conduct was unacceptable and makes the commitment that he will take corrective action to ensure no future incidents of this nature will occur.

It is understood that future violations of this nature by Mr. Bruno will result in further disciplinary action up to and including termination of employment.

Mr. Bruno and the Union agree to forego the filing of grievances and/or other claims which have or may be made as a result of this issue.

This settlement is made without precedence or prejudice to the Company and Union in any other disciplinary cases.

Id., Exhibit 4.² This offer was not accepted. Rather, on February 15, the Union filed plaintiff's second grievance, AWN-7-90, protesting as follows:

The Union contests Anthony Bruno's Feb. 2, 1990 five day suspension, extended into a ten day suspension by the Company as premeditated and discriminatory, as the alleged charges are unjustified.

Exhibit E to Motion for Summary Judgment. Thus, this grievance, in reality, complained of two events: the February 2 suspension itself, and the extension of that suspension from five days to ten days. On February 16, plaintiff received a letter from Amweld which the latter characterized as a "response to the suspension hearing." Exhibit 6 to complaint. The letter, dated February 15, included the following "Reinstatement Offer" which is substantially the same as that presented at the February 13 hearing.

As a result of the suspension hearing on February 9 and 12, 1990, the Company hereby takes the following action.

The disciplinary suspension of February 2, 1990 is established as a 10 working day suspension with a return to work day of Monday, February 19, 1990.

The 10 working day suspension period will be without pay or loss of seniority. It should be understood by Mr. Bruno that future violations of this nature will result in further disciplinary action up to and including termination of employment.

Mr. Bruno by his signature below, agrees to return to work as outlined above. He acknowledges his conduct was unacceptable and makes a commitment that he will take corrective actions to ensure no further incidents of this nature will occur.

Exhibit 7 to complaint. Plaintiff found this offer to be unacceptable and communicated this to Hall. Plaintiff's Deposition I at 104.

A "Step Three"³ meeting was held with regard to grievance AWN-7-90 on February

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23, 1990. Plaintiff, Hall, and several local Union representatives were present at this meeting. Plaintiff's Deposition at 123. Once again, the confrontations between plaintiff and Brest occurring on January 26 and 29 were discussed. Id. Amweld, through one Glennard Pelphrey (Director of Industrial Relations), did not allow witnesses to come in and testify as to this subject. Id. at 124. Plaintiff does not recall discussing Amweld's reinstatement offer. Id. at 125. Rather, he and the Union representative "wanted retraction of the personal report, we wanted discrimination stopped, we wanted full compensation for time lost." Id.

On February 28, 1990, Amweld denied grievance AWN-7-90. Along with a letter received by plaintiff on March 1 (complaint at ¶ 33), Amweld included this denial and characterized the events which transpired on January 26 and 29 as follows:

Mr. Bruno's actions on Friday, 1/26/90, and Monday, 1/29/90, were deliberate, intentional acts of insubordination and egregious misconduct which were serious and warranted the disciplinary action in question. Mr. Bruno specifically failed to attend required safety instructional

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