ILA SS CLERKS LOCAL 1624 v. VA INTERN. TERMINALS, 2:95cv787.

• Decision Date: 07 November 1995
• Docket Number: No. 2:95cv787.,2:95cv787.
• Citation: 904 F. Supp. 500
• Parties: INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, STEAMSHIP CLERKS LOCAL 1624, AFL-CIO, and International Longshoremen's Association, Container Maintenance Refrigeration Repair Employees Local 1970, AFL-CIO, Plaintiffs, v. VIRGINIA INTERNATIONAL TERMINALS, INC., Hampton Roads Shipping Association, Ceres Marine Terminals, Inc., Sea-Land Service, Inc., Edward L. Brown, and International Longshoremen's Association, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

904 F. Supp. 500

INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, STEAMSHIP CLERKS LOCAL 1624, AFL-CIO, and International Longshoremen's Association, Container Maintenance Refrigeration Repair Employees Local 1970, AFL-CIO, Plaintiffs, v. VIRGINIA INTERNATIONAL TERMINALS, INC., Hampton Roads Shipping Association, Ceres Marine Terminals, Inc., Sea-Land Service, Inc., Edward L. Brown, and International Longshoremen's Association, Defendants.

No. 2:95cv787.

United States District Court, E.D. Virginia, Norfolk Division.

November 7, 1995.

COPYRIGHT MATERIAL OMITTED

Thomas F. Hennessy, III, SuAnne Leigh Hardee, Hardee & Hennessy, P.C., Chesapeake, VA, for Plaintiffs.

Thomas Michael Lucas, Vandeventer, Black, Meredith & Martin, Norfolk, VA, for Defendants Virginia International Terminals, Inc., Hampton Roads Shipping Association, Ceres Marine Terminals, Inc., and Sea-Land Service, Inc.

Robert J. Attaway, Haight, Garner, Poor & Havens, New York City, for Defendant Sea-Land Service, Inc.

C. Arthur Rutter, Jr., Rutter & Montagna, Norfolk, VA, for Defendants Edward L. Brown and International Longshoremen's Association.

Thomas W. Gleason, Gleason & Matthews, New York City, for Defendant International Longshoremen's Association.

MEMORANDUM OPINION AND ORDER

REBECCA BEACH SMITH, District Judge.

Plaintiffs, International Longshoremen's Association, Steamship Clerks Local 1624 AFL-CIO ("Local 1624") and International Longshoremen's Association, Container Maintenance Refrigeration Repair Employees Local 1970 AFL-CIO ("Local 1970"), filed this action on July 31, 1995, under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, to recover for alleged breaches of Collective Bargaining Agreements ("CBAs") between themselves and Defendants Virginia International Terminals, Inc. ("VIT"); Hampton Roads Shipping Association ("HRSA"); Ceres Marine Terminals, Inc. ("Ceres"); and Sea-Land Services, Inc. ("Sea-Land") (collectively "the Employer Defendants").¹ In addition, the complaint seeks damages arising from Defendant Edward L. Brown's alleged breach of the duty of fair representation imposed on him as an officer of the International Longshoremen's Association ("ILA"), by 29 U.S.C. § 501(a), and from the ILA itself.² The Court has jurisdiction to hear this federal question involving a labor agreement, pursuant to 28 U.S.C. § 1331. The matter currently is before the Court for resolution of two pending pre-trial motions, the Employer Defendants' motion for summary judgment and the Plaintiffs' motion to strike the Employer Defendants' reply brief and affidavits. However, a review of the nature of the case will simplify later analysis on these motions.

I. NATURE OF THE CASE

Plaintiffs are both local union chapters and signatories to a "Master Agreement" which governs the relationship between the local ILA unions and the Employer Defendants. Complaint ¶¶ 13, 14; Affidavit of Lynn Tarkenton ¶ 2. Plaintiffs also entered into separate CBAs with the Employer Defendants on December 1, 1990, which remained in effect throughout the relevant time period. Complaint ¶¶ 15-18. Both CBAs include provisions establishing the standard day (8:00 am to 5:00 pm), during which union employees are to be compensated at a "straight time" rate of pay. Id. The Master Agreement also provides for a flexible start and stop time for union members employed at the gates of terminals, such that shifts from 7:00 am to 11:00 am, and from 12:00 noon to 4:00 pm can be scheduled at the straight time rate. Tarkenton Aff. ¶ 4. Outside of this standard day, union members are entitled to a premium for their work. In addition, the Master Agreement provides for a fixed number of employees to perform each craft necessary for the operation of the gates. Complaint ¶¶ 13, 14.

At some point during 1994, Defendant VIT, through its Director of Operations and Labor, Lynn Tarkenton, began exploring the possibility of instituting a more flexible schedule for union employees manning the gates at their facilities ("the flex-time proposal"). Specifically, Tarkenton sought agreement of the local unions to permit flex-time schedules which would begin at 9:00 am and last until 6:00 pm, in order to better serve the carriers which utilize the VIT terminals. The employees covered by the proposed flex-time modifications included members of both Local 1624 and Local 1970, Plaintiffs in this action. Tarkenton exchanged several letters and held several meetings with Plaintiffs and with Defendant Brown, and other ILA Locals. Tarkenton Aff. ¶¶ 4-7. The Employer Defendants ultimately implemented the flex-time schedule for their staffing needs with the result that members of Local 1624 and Local 1970 are now compensated at straight-time wages for hours formerly considered overtime under the original terms of their respective CBAs. In addition, the more flexible schedule has increased the total number of union members sharing the work at each gate, resulting in fewer overtime hours for union members. Complaint ¶¶ 23-25.

The Employer Defendants assert that the flex-time proposal was properly approved by the ILA's Wage Scale Committee, at a meeting on January 5, 1995, and thus its implementation was in accordance with the terms of both the Master Agreement and the CBAs. Plaintiffs vigorously dispute that assertion. The principal points of disagreement between the parties involve the presentation of the flex-time proposal to the Wage Scale Committee, which was charged with approving it for the ILA and its Locals, and with the subsequent presentation of the dispute to the ILA/HRSA Contract Board, the arbitration body which all parties concede is charged with resolving disagreements related to the CBAs and the umbrella Master Agreement. Complaint ¶ 40-43; Tarkenton Aff. ¶ 3.

The Employer Defendants filed a motion for summary judgment on August 28, 1995, to which Plaintiffs responded on September 11, 1995. On September 15, 1995, the Employer Defendants filed a reply to Plaintiffs' response brief. Plaintiffs moved to strike the reply pursuant to Rule 12(f) of the Federal Rules of Civil Procedure on September 18, 1995.³

II. PLAINTIFFS' MOTION TO STRIKE DEFENDANTS' REPLY

Before considering the Employer Defendants' summary judgment motion, the Court will take up Plaintiffs' motion to strike the Employer Defendants' reply brief and its accompanying affidavits and exhibits. Although styled a reply, the Employer Defendants' memorandum does not challenge or even address any matters raised in Plaintiffs' response. Instead, the Employer Defendants report the proceedings of a subsequent meeting of the Contract Board, which was held on September 5, 1995, six weeks after this action was filed. Essentially, the argument presented in their reply brief amounts to an additional ground in support of their motion for summary judgment. They assert that the subsequent vote of the Contract Board renders moot any previous impropriety in the Contract Board's earlier decision. For the reasons set forth below, the Court does not agree.

A. Standard of Review

Rule 12(f) permits the court, on motion of either party, to strike "from any pleading any insufficient defense or redundant, immaterial, impertinent or scandalous matter." Fed.R.Civ.P. 12(f) (emphasis added). Plaintiffs have attempted to use such a motion to strike Employer Defendants' reply brief and accompanying affidavits. Briefs and affidavits, however, are not pleadings. See Fed.R.Civ.P. 7(a) (defining pleadings as complaints, answers and replies to counter-claims); Newsome v. Webster, 843 F.Supp. 1460, 1464 (S.D.Ga.1994) (motion to strike not appropriate to challenge affidavits); Welch v. Board of Directors, 146 F.R.D. 131, 138-39 (W.D.Pa.1993) (same holding as Newsome). The filing of a motion to strike, therefore, is not a proper way to challenge the Employer Defendants' responsive filing. See, e.g., Newsome, 843 F.Supp. at 1464 (denying motion to strike affidavits); Board of Educ. v. Admiral Heating & Ventilation, Inc., 94 F.R.D. 300, 304 (N.D.Ill.1982) (memoranda are not pleadings thus motion to strike footnote was improper); Resolution Trust Corp. v. Blasdell, 154 F.R.D. 675, 683 (D.Ariz.1993) (Rule 12(f) cannot be used to strike a response to a motion to dismiss). But see, Simmons v. Al Smith Buick Co., 841 F.Supp. 168, 170 (E.D.N.C.1993) (striking a brief which was not permitted by local rules).

In addition, even a properly made motion to strike is a drastic remedy which is disfavored by the courts and infrequently granted. First Financial Sav. Bank v. American Bankers Ins. Co., 783 F.Supp. 963, 966 (E.D.N.C.1991); United States v. Fair-child Indus. Inc., 766 F.Supp. 405, 408 (D.Md.1991).

B. Analysis

As stated above, Plaintiffs' motion to strike is not a proper method for challenging the Employer Defendants' reply. For that reason, their motion to strike is DENIED. However, whether the reply is stricken or not is immaterial, because as Plaintiffs correctly assert, the additional argument made in the reply is irrelevant to the determination of this summary judgment motion. As long as a party opposing a motion or filing registers its objections to the movant's materials by way of submitting material in opposition, the Court will implicitly, if not explicitly rule on these objections in deciding the motion. Newsome, 843 F.Supp. at 1464.

In this case, even if the Employer Defendants were able to prove that the September 5, 1995, meeting was conducted fairly, the Contract Board's affirmance of the March 9, 1995, decision does not affect the viability of the complaint in this action. Plaintiffs have requested the Court to determine and declare the parties' rights under the various agreements governing their relationship, and award damages resulting from the allegedly improper approval of the flex-time proposal, which has been in place since March of 1995.⁴ Dissatisfied with the implementation of the flex-time proposals, Plaintiffs first had an...