Condon v. Local 2944, United Steelworkers of America, AFL-CIO, CLC

• Decision Date: 23 July 1982
• Docket Number: AFL-CI,CL,D,No. 82-1030,82-1030
• Citation: 683 F.2d 590
• Parties: 110 L.R.R.M. (BNA) 3244, 95 Lab.Cas. P 13,761 Gary M. CONDON, Plaintiff-Appellant, v. LOCAL 2944, UNITED STEELWORKERS OF AMERICA,efendant-Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 590

683 F.2d 590

110 L.R.R.M. (BNA) 3244, 95 Lab.Cas. P 13,761

Gary M. CONDON, Plaintiff-Appellant, v. LOCAL 2944, UNITED STEELWORKERS OF AMERICA, AFL-CIO, CLC,

Defendant-Appellee.

No. 82-1030.

United States Court of Appeals, First Circuit.

Argued May 7, 1982.

Decided July 23, 1982.

Mark L. Mallory, with whom Kenneth G. Bouchard, and Law Offices of Augustine J. McDonough, P. A., Manchester, N. H., were on brief, for plaintiff-appellant.

George H. Cohen, with whom David M. Silberman, Bredhoff & Kaiser, Washington, D. C., Richard F. Upton, Upton, Sanders & Smith, Concord, N. H., Bernard Kleiman, Chicago, Ill., Lawrence S. Smith, and Ransmeier & Spellman, Concord, N. H., were on brief, for defendant-appellee.

Before CAMPBELL, BOWNES and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

On September 9, 1977, plaintiff-appellant Gary M. Condon, while working as a welder for Joy Manufacturing Company (Joy), suffered severe burns when the flannel shirt he was wearing caught on fire from sparks generated during the welding process. Nearly two years later, in an attempt to augment the recovery he received under the New Hampshire Workmen's Compensation Act, he filed this action against his union, Local 2944 of the United Steelworkers of America (Local). He raised six claims, three in tort and three in contract, alleging that Local breached certain legal duties owed to him with respect to his safety, and that this breach resulted in his injuries. Four of these claims alleged a breach in tort or contract of a duty arising out of the collective bargaining agreement between Joy and Local. The remaining two alleged a breach of a duty under New Hampshire common law that, according to appellant, arose independent of the collective bargaining agreement. He appeals the district court's order granting summary judgment in favor of Local on all six counts.

At the time appellant's accident occurred, Joy was a party to a collective bargaining agreement with the United Steelworkers of America, the International Union with which Local 2944 is affiliated. Sections 18.01-.09 of this agreement related to safety and health. Under the contract, Joy agreed "to make reasonable provisions for the safety and health of its employees at the plant," § 18.01, and to provide and maintain safety equipment and glasses, §§ 18.03-.04. The agreement also established procedures for reporting injuries, § 18.02, and provided a grievance procedure enabling employees to seek relief from job assignments that they believed to be unsafe, § 18.05. The sections pivotal to this appeal created a "joint safety committee" consisting of four union and four management representatives, § 18.06-.07, whose "function ... shall be to advise with the Company concerning safety and health matters but not to handle grievances." § 18.08. ¹ The joint committee had no authority to require Joy to take any action to reduce safety and health risks because Joy, like most employers, believed that decisions to reduce these risks had potentially major cost implications and intimately involved management's prerogatives with regard to plant operations and personnel. Management would not, therefore, agree to surrender such authority to a joint union-management committee. Affidavit of Arthur G. Cilley at 2 & 4. ²

Appellant filed his original complaint against Local in New Hampshire Superior Court early in August of 1979. The complaint contained two counts, each predicated on the collective bargaining agreement, which, the complaint alleged, "provid(ed) for the establishment of a joint safety committee" which was "the agent of the defendant union" and which had the "duty ... to monitor safety conditions at Joy Manufacturing Company and to advise the Company concerning safety and health matters (and) ... to properly inspect the working premises to insure that there was sufficient fire safety equipment available if a fire emergency arosed (sic )." Count I sounded in tort, alleging that because the joint safety committee failed to ensure that there was sufficient fire safety equipment, the Local breached its duty of due care under New Hampshire law by negligently performing its duty to "monitor safety conditions." Count II, sounding in contract, claimed that appellant was a third party beneficiary of the contract between Local and Joy, and that the failure by the joint safety committee to "monitor safety conditions" constituted a breach of that contract.

Local removed Counts I and II to New Hampshire federal district court on August 6, 1979. Appellant moved to remand, and, in an effort to avoid federal jurisdiction, also moved to amend by deleting Count II. The district court granted the motion to amend but denied the motion to remand. In July 1980, seven months after remand was denied, appellant moved to reinstate Count II, which the district court granted.

In January 1981, the district court granted appellant's motion to amend his complaint by adding two counts, which, like Counts I and II, alleged tort and contract claims based upon the collective bargaining agreement. Count III alleged that the "welding machine that the plaintiff was using in the course of his employment was unsafe," and that Local breached its duty of due care in performing its asserted contractual duty to "monitor safety conditions" by failing to properly inspect the working premises for safety hazards and to remove those hazards. Count IV alleged that these same failures to act breached the contract between Local and Joy, to which appellant claimed he was a third party beneficiary.

Two weeks later, appellant filed yet another motion to amend by adding two more counts, which was granted. Count V asserted that, independent of the collective bargaining agreement, appellant had entered a contract with the Local that imposed on Local a duty to inspect the working premises, and to ensure that the equipment on the premises was in a safe operating condition and that sufficient fire safety equipment was available. ³ This count alleged that Local breached this contract because the welding machine in question was defective and unsafe and because there was insufficient fire safety equipment. Count VI claimed that, independent of Local's contractual obligations, New Hampshire common law imposed on Local the same duties described in Count V, and that Local negligently failed to carry out these duties.

On November 2, 1981, Local, in accordance with the schedule established by the district court, filed a motion "to dismiss or, in the alternative, for summary judgment." On November 18, 1981, appellant filed a memorandum opposing Local's motion, in which he consented to the dismissal of Counts I-IV:

Upon examination of the authorities cited by the defendant union in its lengthy memorandum on this Motion the plaintiff is forced to concede that with regard to all obligations of a union arising out of a collective bargaining agreement, the only duty owed to its members is that of fair representation, as a matter of federal law no general duty of due care may be imposed. For this reason the plaintiff consents to the dismissal of Counts I-IV inclusive. (citation omitted).

Having consented to the dismissal of four of his six counts, appellant attempted to salvage Counts V and VI by again seeking a remand to state court. The district court granted summary judgment for Local on all six counts. On Counts V and VI, the state law counts, the court reasoned that New Hampshire law would not impose on Local a duty of due care with regard to safety matters unless Local had the "power to monitor safety or to ... act concurrently as to the duty legally imposed upon the employer to provide a safe workplace and safe appliances." Finding no such grant of authority by Joy to Local, the district court concluded that "there is no theory of state law to be resolved by transfer to the state court."

We first address appellant's contention that, as a procedural matter, the district court erred in granting summary judgment for Local on all six counts because appellant was surprised by this treatment of Local's motion; that is, appellant was not given notice and an opportunity to present additional evidence outside the pleadings, and that this prejudicially foreclosed his ability to demonstrate the existence of genuine issues of material fact. We find this argument unpersuasive. Local's original motion, filed on November 2, 1981, was styled as a motion "to dismiss or, in the alternative, for summary judgment." Local supported this motion with an affidavit, excerpts from appellant's own deposition testimony, and an extensive memorandum, all of which addressed matters well outside the pleadings. Appellant asserted in his objection to this motion, which he filed on November 9, that, in addition to filing a memorandum to support his position, he would supply "any necessary counter affidavits." A hearing was conducted roughly three weeks later on November 30. Appellant supplied no affidavits or exhibits to support his objection to Local's motion prior to the hearing or at it.

Appellant relies on Hickey v. Arkla Indus., Inc., 615 F.2d 239 (5th Cir. 1980), for the proposition that, under Fed.R.Civ.P. 12(b), when matters outside the pleadings are presented to and not excluded by the district court, the court shall treat the motion as one for summary judgment, and must satisfy the notice and hearing requirements of Fed.R.Civ.P. 56(c) (ten days notice prior to hearing). Id. at 240. Hickey, however, is readily distinguishable from the case at hand. In Hickey "(t)he first indication plaintiff had that the trial court was considering matters outside the pleadings came when the order was issued. (citation omitted). The first indication plaintiff had that defendant intended to rely on matters outside the pleadings came four days before the time fixed for the hearing." Id. Here, there was no such surprise. Appellant had ample opportunity to provide the court...