Clemmons v. Georgia-Pacific Corp., CIVIL ACTION No. 3:14-00432-JWD-RLB

• Decision Date: 21 December 2015
• Docket Number: CIVIL ACTION No. 3:14-00432-JWD-RLB
• Parties: WILLIAM BRIAN CLEMMONS Plaintiff, v. GEORGIA-PACIFIC CORPORATION, and THE UNITED STEEL, PAPER, AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION (USW), LOCAL 1334 Defendants.
• Court: U.S. District Court — Middle District of Louisiana

WILLIAM BRIAN CLEMMONS Plaintiff, v. GEORGIA-PACIFIC CORPORATION,andTHE UNITED STEEL, PAPER, AND FORESTRY, RUBBER, MANUFACTURING, ENERGY,ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION (USW), LOCAL 1334 Defendants.

CIVIL ACTION No. 3:14-00432-JWD-RLB

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

December 21, 2015

RULING ON MOTIONS TO DISMISS

I. INTRODUCTION

Before the Court are the first Motion to Dismiss Amended Complaint, (Doc. 40), and Second Motion to Dismiss for Failure to State a Claim (collectively, "Motions to Dismiss"), (Doc. 41), filed by the United Steel, Paper, and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW), Local 1334 ("Union"), and Georgia-Pacific Corporation ("GP" or "Georgia Pacific") (collectively, "Defendants"), respectively. Plaintiff, Mr. William Brian Clemmons ("Clemmons" or "Plaintiff"), opposes both motions. (Docs. 43, 44.) Oral argument is not necessary.

Case law and fact compel three conclusions. First, Plaintiff's harassment claims must be dismissed for one simple reason: this Court lacks subject matter jurisdiction over Plaintiff's harassment claims because they are arguably subject to Section 7 or 8 of the National Labor Relations Act ("NLRA"),¹ a federal labor law implemented and administered by the National Labor Relations Board ("NLRB") since July 5, 1935. Second, Plaintiff's claim with respect to the overtime board averaging must be dismissed with prejudice, as Plaintiff has failed to amend his complaint to allege that he at least attempted to exhaust the grievance procedure in the collective bargaining agreement, the minimum legal requirement. Finally, Plaintiff's claim under Louisiana's Right-to-Work Law ("LRWL") must too be dismissed. Here, the LRWL is preempted by the NLRA because, with Plaintiff having been able to work after leaving the Union, no "de facto" union security agreement² existed, the only relevant (and pleaded) exception to the NLRA's otherwise broad preemptive ambit.

For these reasons, as more fully explained below, this Court GRANTS the Motions to Dismiss. (Doc. 43; Doc. 44.)

II. FACTUAL AND PROCEDURAL BACKGROUND

The relevant background has already been summarized in numerous prior orders; accordingly, this Court now recaps only the most recent salient facts and allegations. (See Doc. 32 at 1-4; Doc. 34 at 1-4.) In two separate orders, addressing two different dispositive motions, (Docs. 4, 12), the Court dismissed all of Plaintiff's claims against Defendants.³ (Docs. 32, 34.)Nonetheless, pursuant to Federal Rule of Civil Procedure 15(a),⁴ the Court granted Plaintiff leave to amend his original complaint, (Doc. 2), both to allege that "he at least attempted to exhaust the grievance procedure in the collective bargaining agreement," (Doc. 32 at 14; Doc. 34 at 12), and to more "sufficiently allege a claim for harassment under federal or state law that is unrelated to Plaintiff's filing charges with the NLRB," (Doc. 32 at 14).⁵ Subsequently, on April 28, 2015, Plaintiff filed the Amended Complaint ("Complaint"). (Doc. 35.)

a. Plaintiff's Amended Complaint

In spite of its adjudicated defects, the Complaint began by incorporating Plaintiff's original pleading.⁶ (Id. ¶ 28 at 1.) Thereafter, Plaintiff attempts to tailor his allegations so as to address the Court's prior ruling. (Id. ¶¶ 28 at 1, 30 at 2-3.)

He begins with an attempt to buttress his original allegation that his vacation time was "improperly averaged into an overtime board." (Id. ¶ 29 at 1.) Plaintiff states that he "amend[s] his Complaint to cure [the] defect . . . that [he] has failed to allege that he at least attempted to exhaust the grievance procedure in the collective bargaining agreement[.]" (Id.) He does this in the following manner: while "the past practice was that, after returning from special details, an employee averaged into the board," "the [U]nion vice president directed otherwise in [his] case." (Id.) Plaintiff alleges that he "used the fact that he had recently taken vacation and averaged inunder a different procedure, which the maintenance secretary effected for [him]." (Id. ¶ 29 at 1-2.) To Plaintiff, "this event is evidence of union involvement in the harassment." (Id. ¶ 29 at 2.)

Next, with respect to harassment claims that are unrelated to Plaintiff's filing charges with the NLRB, Plaintiff alleges that "[e]very time a contract violation occurred, an explanation was offered to [P]laintiff by either the Company or the Union, or both." (Id. ¶ 30 at 2.) Plaintiff asserts that "when the letter outlining the 'Special Diamond Agreement' surfaced, at the end of February 2014, it became apparent that all of the previous explanations were untrue, which makes the emergence of this February 2014 letter the triggering event for the litigation." (Id.)

Plaintiff claims that "[t]he harassment was not in response to the NLRB charges, as the NLRB charges at most exacerbated the situation." (Id. (emphasis omitted)) According to Plaintiff:

The harassment was based upon [his] refusal to allow the [U]nion and the company to sweep aside a ratified agreement that he was working under, punctuated by his withdrawing from the Union due to his perception of inadequate representation, and asking the NLRB to look into the fact that he had never actually joined the Union (whereas defendants had always taken dues out of his paycheck, in addition to continuing to withdraw Union Dues from his paycheck for another six months).

(Id.) Plaintiff alleges that "the NLRB . . . conclude[d] that [he] had never asked to join the Union and directed return of the previous six months dues paid" and thereafter "directed that a notice to all employees be placed at the facility entrance, outlining that defendants could not, and would not require Union membership in the future, for any employee." (Id. ¶ 30 at 2-3.) Plaintiff asserts that "when [he] did return to the . . . [collective bargaining agreement ("CBA")] contract and the day crew, after the . . . [memorandum of agreement ("MOA")] contract was fulfilled, the physical violence began and [he] filed formal charges with the company for workplace violence, fearing for his safety in a hostile Union environment. (Id. (emphasis omitted)) In his telling, "[t]his hostile environment led [P]laintiff to terminate his employment with Georgia Pacific in September 2014." (Id.)

For further support, Plaintiff directs this Court to an email. Dated September 8, 2014, ⁷ this missive, which was sent "[m]illwide," declared that when Plaintiff first was interviewed for his job at Georgia Pacific "almost thirty years ago," his long term goal was "[r]etirement." (Doc. 41-3 at 1.) Plaintiff acknowledged that ". . . it looks like that day has come, having been with GP half of my life." (Id.) He continued: "It has been [his] honor to work with some of the finest maintenance personnel in the world, there in Port Hudson, and you will be missed." (Id. at 2.) Plaintiff "couldn't begin to thank every one [sic] for the time [they] spent together[.]" (Id.) In closing out his email, Plaintiff told everyone to work safely, and that his "hope for all of [them] is that [they] reach this day, in [their] life, too." (Id.) Per this email, "the effective date [of his retirement would] be September 15[,] [2014]." (Id.)

In response, Mr. Tim Ellsworth ("Ellsworth"), the alleged project superintendent, wrote on September 9, 2014:

Brian, congratulations with your retirement, I too look forward to that goal in 5 years. It has been a pleasure working with you - I truly respect what you and [T]erry did for us and am understanding of the bullets you guys took to move our product system towards a vision that quite frankly the mill was not ready for. It was an honor working with you.

(Doc. 41-3 at 1.) Plaintiff claims that this email from Ellsworth, "the project superintendent, written when [P]laintiff left GP . . . admits that he was aware that [P]laintiff was being harassed." (Doc. 35 ¶ 31 at 3.) Plaintiff further alleges that Ellsworth "did not take steps to ensure harassmentagainst [P]laintiff ceased." (Id.) Seemingly, Ellsworth "did speak to the crew on one occasion, but failed to provide follow-up supervision, allowing harassment to actually increase as a result." (Id.)

III. PROCEDURAL ISSUES

Before discussing the Parties' arguments concerning the Motions to Dismiss, there is an overriding procedural issue concerning Plaintiff's briefing and attachments to his Opposition that GP raises in its Motion to Dismiss.⁸ In his Opposition to both motions, Plaintiff attaches a letter from GP's counsel, (Doc. 43-1; Doc. 44-1), an email from Plaintiff's counsel, (Doc. 43-2; Doc. 44-2), and his own affidavit. (Doc. 43-3; Doc. 44-3.) GP argues that "[t]hese exhibits are neither referenced nor otherwise central to the allegations in [Plaintiff's] Amended Complaint[,]" and, as such, "this Court should disregard such exhibits[.]" (Doc. 45 at 1 (citing Xavier v. Belfor USA Grp., Inc., Nos. 06-491, 06-7084, 2007 WL 4224320, *2, 2007 U.S. Dist. LEXIS 87028, at *7 (E.D. La. Nov. 26, 2007)). Because Plaintiff relies upon these documents in varying degrees,⁹ this Court must first address this procedural issue.

The governing standard appears in Rule 12, its many exceptions mined in case law. In general, pursuant to Rule 12(d), "[i]f, on a motion under Rule 12(b)(6)[,] . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." FED. R. CIV. P. 12(d); United States v. Rogers Cartage Co., 794 F.3d 854, 861 (7th Cir. 2015). Naturally, there are some exceptions to this ostensibly ironclad standard, such as when documents are referenced or incorporated into a complaint. See supra note7. As the Fifth Circuit has recently explained in this regard, "[i]f the district court does not rely on materials in the record, such as affidavits, it need not convert a motion to dismiss...