Cox v. Boeing Co.

• Decision Date: 09 September 1993
• Docket Number: Civ. A. No. 91-1340-MLB.
• Citation: 833 F. Supp. 836
• Parties: Jim D. COX, Plaintiff, v. The BOEING COMPANY; and District Lodge No. 70, International Association of Machinist and Aerospace Workers, AFL-CIO, Defendants.
• Court: U.S. District Court — District of Kansas

833 F. Supp. 836

Jim D. COX, Plaintiff, v. The BOEING COMPANY; and District Lodge No. 70, International Association of Machinist and Aerospace Workers, AFL-CIO, Defendants.

Civ. A. No. 91-1340-MLB.

United States District Court, D. Kansas.

September 9, 1993.

Robert S. Allen, Allen Associates, Wichita, KS, Stephen B. Plummer, Sedgwick County Counselor, Wichita, KS, for Jim D. Cox.

J. Steven Massoni, Douglas L. Stanley, Foulston & Siefkin, Wichita, KS, for The Boeing Co.

Thomas E. Hammond, Render, Kamas & Hammond, Wichita, KS, for International Ass'n of Machinist and Aerospace Workers, AFL-CIO, District Lodge No. 70.

MEMORANDUM AND ORDER

BELOT, District Judge.

This matter comes before the court on separate motions for summary judgment by defendants The Boeing Company ("Boeing") and District Lodge No. 70 of the International Association of Machinist and Aerospace Workers, AFL-CIO ("the Union"). (Docs. 53 & 55). Plaintiff Jim D. Cox ("plaintiff") filed this suit against Boeing and the Union, asserting a claim under section 301 of the Labor-Management Relations Act (LMRA), 29 U.S.C. § 185. Section 301 gives federal courts subject-matter jurisdiction over "suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce." 29 U.S.C. § 185(a). Plaintiff has alleged that he was wrongfully discharged by Boeing, in violation of the collective bargaining agreement between Boeing and the Union, and that the Union breached its duty to fairly represent him by failing to properly investigate and arbitrate his grievance against Boeing.

STANDARDS FOR SUMMARY JUDGMENT

Rule 56(c) of the Federal Rules of Civil Procedure directs the entry of summary judgment in favor of a moving party who "shows that there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law." A principal purpose "of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses...." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The court's inquiry is to determine "whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2516, 91 L.Ed.2d 202 (1986).

The burden of proof at the summary judgment stage is similar to that at trial. The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact by informing the court of the basis for its motion. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. This burden, however, does not require the moving party to "support its motion with affidavits or other similar materials negating the opponent's claim." Id. (emphasis in original). Once the moving party properly supports its motion, the nonmoving party "may not rest upon mere allegation or denials in his pleadings, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514; Shapolia v. Los Alamos Nat'l Laboratory, 992 F.2d 1033, 1036 (10th Cir.1993). "A genuine issue `must be predicated on a viable legal theory.'" Windon Third Oil & Gas v. F.D.I.C., 805 F.2d 342, 346 (10th Cir.1986) (citation omitted).

The court reviews the evidence in a light most favorable to the nonmoving party, e.g., Washington v. Board of Public Utilities, 939 F.2d 901, 903 (10th Cir.1991), under the substantive law and the evidentiary burden applicable to the particular claim. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. If the nonmoving party fails to make a factual showing which, viewed in a light most favorable to him, establishes the existence of an element essential to that party's case, then summary judgment is appropriate. Aldrich Enters., Inc. v. United States, 938 F.2d 1134, 1138 (10th Cir.1991). Summary judgment is inappropriate, however, if there is sufficient evidence on which the trier of fact could reasonably find in the nonmoving party's favor. Prenalta Corp. v. Colorado Interstate Gas Co., 944 F.2d 677, 684 (10th Cir.1991).

FACTUAL FINDINGS

Construing the record in a light most favorable to the plaintiff, the court makes the following findings of fact for purposes of both Boeing's and the Union's motions for summary judgment:

1. Plaintiff was employed by Boeing as a sheet metal mechanic from August 10, 1984 until January 28, 1991, when his employment was terminated. Plaintiff's job involved the riveting of aluminum skins on Boeing 737 aircraft frames. He worked the second shift, 3:30 p.m. to 12:00 a.m., at Boeing Shop No. 2960.

2. Defendants Boeing and the Union entered into a collective bargaining agreement on November 22, 1989. The collective bargaining agreement is intended to govern the relations between Boeing and its employees represented by the Union. It expressly recognizes the Union as the exclusive collective bargaining agent for all employees covered by the agreement.

3. Plaintiff was not a member of the Union. He was, however, a member of the bargaining unit and was covered by the collective bargaining agreement between Boeing and the Union.

4. In January 1991, near the time that the United States began its air attacks on Iraq during the Persian Gulf War, plaintiff used scrap metal from the Boeing shop where he worked to construct an object which, according to photographs presented to this court, could most accurately be likened to a miniature bomb. Plaintiff took a piece of aluminum resembling a bowling pin and riveted small metal fins to its narrow end. Later, using material from the Boeing plant, plaintiff painted the toy bomb and, with his own colored marker, drew an American flag on it. Plaintiff claims that he assembled the toy bomb during a break from work.

5. The aluminum, bowling pin-like piece that formed the main shaft of plaintiff's toy bomb had been setting in the shop where plaintiff worked for as much as one and a half years. Many of plaintiff's co-workers had seen and were familiar with the aluminum piece.

6. Plaintiff and a fellow co-worker played with the toy bomb during their shift, "shooting baskets" with it into a trash can. It is not clear how long they participated in this activity, although it appears to have been a relatively brief period of time.

7. On January 22, 1991, at approximately 1:00 a.m., a member of the third shift crew named Patrick Roskilly found plaintiff's toy bomb. Mr. Roskilly claims that he had never seen the toy bomb or the aluminum "pin" prior to that time.¹ (Roskilly's Depo., pp. 13, 15). After inspecting the device "to see if it had any substance to it," Mr. Roskilly doubted it was a real bomb. (Roskilly's Depo., p. 20). Nevertheless, because Boeing employees had been instructed to call security if they found anything suspicious, Mr. Roskilly phoned security and told them about the device. (Roskilly's Depo., p. 34). He informed security that he did not think the device was real. (Roskilly's Depo., p. 19-20).

8. Boeing security officers subsequently arrived on the scene. One of the security officers picked up the supposed bomb and shook it. (Roskilly's Depo., p. 20-21). An order was made for the entire area to be cleared, and the Sedgwick County bomb squad was called.

9. On January 22, 1991, plaintiff was placed on indefinite suspension while the toy bomb incident was being investigated. Boeing conducted an inquiry into the matter, and plaintiff admitted that he had constructed the device. Boeing then terminated plaintiff's employment on January 28, 1991.

10. Prior to his termination, Boeing had disciplined plaintiff for improper conduct on two prior occasions: July 25, 1988 and March 17, 1989. In both cases, Boeing issued Corrective Action Memos CAMs) against plaintiff which were placed in plaintiff's file, where they were to remain for no longer than eighteen months. According to Boeing, the CAMs were removed from plaintiff's file at the appropriate time and played no role in the decision to terminate plaintiff's employment.²

11. After learning of his termination on January 28, 1991, plaintiff filed a grievance against Boeing with the Union. He discussed his situation with a union representative, Tommy Nicholson, who became responsible for plaintiff's case. Mr. Nicholson reviewed the Boeing security report and results of the Boeing investigation, conducted his own interviews of witnesses identified by plaintiff, and discussed plaintiff's case with Boeing Labor Relations in an effort to get plaintiff's job back. Boeing refused to reinstate plaintiff. After completing his investigation, Mr. Nicholson reviewed his findings with five other union representatives and with the Union's Directing Business Representative. The Union ultimately decided not to pursue plaintiff's case to arbitration. Plaintiff was subsequently advised of the Union's decision and, on August 12, 1991, filed this action against both Boeing and the Union.

PARTIES' CONTENTIONS

Defendants Boeing and the Union both claim that they are entitled to summary judgment because plaintiff has presented no evidence from which the trier of fact could legitimately find that the Union breached its duty of fair representation. Furthermore, Boeing contends that, even if the Union did breach its duty of fair representation, Boeing did not violate the collective bargaining agreement in discharging plaintiff from his job.

Plaintiff sets forth two arguments against summary judgment. First, plaintiff argues that he has set forth sufficient evidence that the Union did not carry out its duty of fair representation. Second, plaintiff argues that, even if there is not sufficient evidence that the Union did not fairly represent him, the court should nevertheless allow his action against Boeing to proceed because he was not a...