Carr v. Local 1593, Intern. Broth., Elec. Workers

• Citation: 371 F.Supp.2d 1097
• Decision Date: 18 May 2005
• Docket Number: No. A1-04-018.,A1-04-018.
• Parties: Michael CARR, Plaintiff, v. LOCAL UNION 1593, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS; and International Brotherhood of Electrical Workers, Defendants.
• Court: U.S. District Court — District of North Dakota

371 F.Supp.2d 1097

Michael CARR, Plaintiff, v. LOCAL UNION 1593, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS; and International Brotherhood of Electrical Workers, Defendants.

No. A1-04-018.

United States District Court, D. North Dakota, Southwestern Division.

May 18, 2005.

COPYRIGHT MATERIAL OMITTED

Moody M. Farhart, Minot, ND, for Plaintiff.

Patrick A. Donovan, Hazen, ND, Mark G. Schneider and Daniel E. Phillips, Fargo, ND, Robert D. Kurnick, Washington, DC, for Defendant.

ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

HOVLAND, Chief Judge.

Before the Court are two separate Motions for Summary Judgment filed by each of the two defendants, Local Union 1593 and the International Brotherhood of Electrical Workers, on February 1, 2005, and January 31, 2005, respectively. The Plaintiff has filed a response opposing the motions. For the reasons set forth below, the Court grants the motions.

I. BACKGROUND

The plaintiff, Michael Carr, is an employee of the Dakota Gasification Company ("Dakota Gasification") in Beulah, North Dakota. Carr is part of a bargaining unit represented by the International Brotherhood of Electrical Workers Local Union 1593 ("Local 1593") and is covered by a collective bargaining agreement. Carr also named the International Brotherhood of Electrical Workers ("IBEW") as a defendant.¹

A. COLLECTIVE BARGAINING AGREEMENT

In 2000, Local 1593 was chosen by employees of Dakota Gasification to represent them in collective bargaining and certified by the National Labor Relations Board as the exclusive bargaining representative of any Dakota Gasification employee. In 2000 and 2001, Local 1593 negotiated its first collective bargaining agreement with Dakota Gasification. At Local 1593's request, James Simmons, an IBEW International Representative assisted in the negotiations.

On June 11-12, 2001, the prospective membership of Local 1593 ratified a proposed collective bargaining agreement. The notice which informed Dakota Gasification Local 1593 members of the ratification meeting, stated "[i]t is only fair to inform you that some of the sections are still in dispute with the Company."

On July 10, 2001, Local 1593 and Dakota Gasification signed a collective bargaining agreement. The agreement included Exhibit C, which reads as follows:

Any term or condition of employment not specifically addressed in this contract shall be governed by existing Company policies, most of which are located in a document entitled "Dakota Gasification Company Employee Guidelines."

The Company reserves the right to change such policies and Guidelines for business reasons without negotiating with the Union, but the Company shall notify the Union when such are made.

Exhibit C was not a part of the ratified collective bargaining agreement signed by Local 1593 on June 11-12, 2001.

In between the ratification of the proposed agreement in June 2001, and the signing of the collective bargaining agreement in July 2001, Carr alleges that a "secret meeting" was held with representatives from Local 1593, IBEW, and Dakota Gasification. Both parties seem to acknowledge that a meeting took place on that date, but the specifics about what happened at the meeting is in dispute. Carr contends that changes were secretly made to the contract which gave Dakota Gasification unlimited power to change policies without bargaining with Local 1593, and members of Local 1593 were not told that they were getting a different contract from the one which they ratified. Carr did not know about the meeting at the time it occurred, but did learn about it at a later date.

On or about July 20, 2001, Local 1593 sent a letter to Dakota Gasification employees informing them that the signed collective bargaining agreement differed from the earlier ratified version. Specifically, the letter explained that "[s]ome sections of the contract are different than what we proposed to the body, but this was Management's version of what transpired." The letter also stated as follows:

"The contract also references Company Policy. They cannot change these policies without negotiating with you. There are also some areas that are not mentioned because we couldn't get DGC to move on these issues. So if they are not covered in the contract, past practice will take precedence."

Carr received a copy of this letter.

On or about August 31, 2001, Local 1593 sent another letter to Dakota Gasification employees, along with a copy of the signed collective bargaining agreement. In the letter, Local 1593 admitted to "hearing many complaints that this is not the contract that you voted on" and recognized that the signed bargaining agreement "is not word for word what was presented to you at the ratification meetings." Carr also received a copy of this letter.

B. JOB TRANSFER

In February 2002, Carr was working in the Oxygen Unit at Dakota Gasification. He was classified as a Tech V. On February 12, 2002, Dakota Gasification posted a memorandum changing the transfer policy effective immediately. The memorandum stated that when grade and/or pay rates appear on a job posting, any applicant whose grade and pay rate is above those listed in the job posting will be subject to a two-grade reduction. On the same day, Dakota Gasification posted a notice for two available positions in Wastewater and Product Loading. The notice listed the position titles as "Operations Field Technician I." Carr read the posting and the memorandum.

Carr applied for a transfer to the Wastewater Unit within Dakota Gasification. The Wastewater Unit position was classified as a Tech I. Carr believed he would retain his Tech V classification after the transfer because that had been the practice at Dakota Gasification. Carr accepted the transfer. On March 11, 2002, when Carr transferred to the Wastewater Unit, his pay grade was reduced to a Tech III classification.

C. GRIEVANCES (FILED AND UNFILED)

On March 28, 2002, Local 1593 filed a grievance on Carr's behalf alleging that Dakota Gasification violated the collective bargaining agreement by reducing his pay grade from Tech V to Tech III. The grievance was denied in Steps One, Two, and Three. Carr then requested an arbitration hearing and a hearing was held on March 5, 2003.

In the meantime, Carr was told that if he did not test to maintain the Tech III pay grade by March 10, 2003, he would be reduced to a Tech I. Carr did not take the test, and on March 10, 2003, his pay grade was reduced to a Tech I. On March 24, 2003, Local 1593 filed another grievance on Carr's behalf alleging that Dakota Gasification violated the collective bargaining agreement by reducing his pay grade from Tech V to Tech III.

During this same time period (February and March of 2003), Dakota Gasification refused Carr's request to convert his vacation leave to sick leave. Instead, Dakota Gasification asked Carr to produce additional information about his illness. Carr did not provide the requested information and did not grieve the decision.

On April 25, 2003, the arbitrator issued a decision in favor of Dakota Gasification on Carr's first grievance.² On approximately the same day, Carr's second grievance was denied.³ Local 1593 did not pursue arbitration on the matter, letting the ten-day time period to process the grievance to arbitration elapse.

In May of 2003, Dakota Gasification gave Carr his work appraisal. The appraisal, dated May 18, 2003, gave Carr an overall evaluation rating of "Needs Improvement." This rating was down from Carr's previous overall rating of "Commendable." Carr saw the evaluation as a threat from management, but did not ask Local 1593 to file a grievance on the issue.

On September 10, 2003, Dakota Gasification announced a change in policy by way of a memorandum with the subject line being "Technician Progression Time Line." The memorandum explained that operations technicians would be expected to progress through various pay grades in a specific amount of time. Failure to do so could result in disciplinary action. Local 1593 did not grieve the policy decision, nor did Carr ask it to do so.

D. PRESENT DISPUTE

On February 14, 2004, Carr served a summons and complaint on Local 1593 and IBEW. In his complaint, Carr set forth four claims (1) breach of contract; (2) breach of the duty of fair representation; (3) misrepresentation and reliance; and (4) violations of the North Dakota Labor-Management Relations Act. The Court has previously partial granted summary judgment on Carr's first, third, and fourth claim. See Docket Nos. 34 and 50. As a result, Carr's sole remaining claim is whether Local 1593 and IBEW breached their statutory duty of fair representation.

On January 31, 2004, IBEW filed a motion for summary judgment regarding the issue of fair representation. IBEW's argument is twofold: (1) it owes no duty of fair representation to Carr; and (2) even if it does owe such a duty, Carr's fair representation claim is untimely. Local 1593 filed a motion for summary judgment on the issue of fair representation on February 1, 2004. While Local 1593 concedes that it owes a duty of fair representation to Carr, it echoes IBEW's contention that the claim is untimely. Further, Local 1593 asserts that if the Court were to consider Carr's fair representation claim, it has no legal merit.

II. LEGAL DISCUSSION

A. STANDARD FOR SUMMARY JUDGMENT

It is well-established that summary judgment is appropriate when, viewed in a light most favorable to the non-moving party, there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Graning v. Sherburne County, 172 F.3d 611, 614 (8th Cir.1999). A fact is "material" if it might effect the outcome of the case and a factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

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