Int'l Ass'n of Heat & Frost Insulators & Allied Workers Local Union No. 53 v. Paternostro

• Citation: 142 So.3d 284
• Decision Date: 28 May 2014
• Docket Number: No. 13–CA–1006.,13–CA–1006.
• Court: Court of Appeal of Louisiana (US)
• Parties: INTERNATIONAL ASSOCIATION OF HEAT & FROST INSULATORS AND ALLIED WORKERS LOCAL UNION NO. 53 v. Dominick PATERNOSTRO.

142 So.3d 284

INTERNATIONAL ASSOCIATION OF HEAT & FROST INSULATORS AND ALLIED WORKERS LOCAL UNION NO. 53

v.Dominick PATERNOSTRO.

No. 13–CA–1006.

Court of Appeal of Louisiana, Fifth Circuit.

May 28, 2014.

Robert H. Urann, Louis L. Robein, Jr., Attorneys at Law, Metairie, Louisiana, for Plaintiff/Appellee.

David M. McDonald, Attorney at Law, Metairie, Louisiana, for Defendant/Appellant.

John C. Scully, Attorney at Law, Springfield, Virginia, for Defendant/Appellant.

Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.

JUDE G. GRAVOIS, Judge.

Defendant, Dominick Paternostro, appeals a judgment by the First Parish Court of Jefferson Parish, granting summary judgment in favor of plaintiff, International Association of Heat and Frost Insulators and Allied Workers Local Union No. 53 (“the Union”). For the reasons that follow, we reverse the trial court's grant of summary judgment in favor of the Union, vacate the award of attorney's fees to the Union, and remand the matter to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Defendant became a member of the Union in 1979. In the late 1980's, defendant began working for Eagle Insulation (“Eagle”),a “union company.” ¹ In the mid–1990's, Eagle was awarded a maintenance contract for the ExxonMobil refinery in Chalmette, Louisiana. And, in 1998, defendant was promoted to Eagle's superintendent at this refinery. As a consequence of taking this managerial position, defendant “withdrew” from the Union.

Approximately twelve years later in 2010, when Eagle's maintenance contract with ExxonMobil was nearing its expiration, ExxonMobil notified Eagle that it would not be allowed to bid on the new contract. ExxonMobil later awarded the maintenance contract to The Brock Group, a “non-union company.” Around this time, defendant was offered and accepted a supervisory position with Brock, to commence on September 7, 2010. Eagle's last day at ExxonMobil was September 3, 2010.

Around the time Eagle learned that its contract with ExxonMobil would not be renewed, Juan Perez, an Eagle employee at ExxonMobil under defendant, testified that defendant offered to help him in locating a job and told him that if he wanted to stay at ExxonMobil, he would have to work for Brock. According to Mr. Perez, defendant encouraged him to work for Brock. Fredal Riecke, another Eagle employee, also testified that defendant approached him about remaining at ExxonMobil.²

In a letter dated August 31, 2010, Leo Damaris, the Union's business manager, informed defendant that charges were being filed against him by the Union “for violation of the International Association of Heat and Frost Insulators and Allied Workers [sic] Constitution and Bylaws under Article XXIV by accepting employment with Brock Group at the Exxon/Mobile [sic] refinery in Chalmette Louisiana, and by actively recruiting fellow members of [L]ocal # 53 to leave employment with a Local # 53 signatory and seek employment with the non-signatory Brock Group.” This letter delineated six provisions (listed infra ) of the Union's Constitution and Bylaws (“the Constitution”) that defendant's conduct was alleged to have violated.

Defendant responded to Mr. Damaris in a letter dated September 7, 2010, stating:

Approximately 10 years ago when I took a management position for Eagle Insulations, I never knew I was a member of Asbestos Workers [L]ocal # 53 union. At Eagle Insulations and at Brock I have been in a management position so I could not be a union member and the union has no jurisdiction over me. If you do not have a copy of my resignation, just to make it clear, I am not a member of the Asbestos Workers Local 53 union.

Mr. Damaris responded to defendant in a letter dated September 21, 2010, informing him that a hearing on the charges had been set for October 10, 2010. Defendant responded in an undated letter, informing the Union that he would not attend the hearing since, as a non-member, the Union did not have jurisdiction over him. Then, in an October 11, 2010 letter, defendant was informed that his hearing had been rescheduled for November 12, 2010. The hearing was held that day, defendant did not attend, and in his absence, the Union's executive board unanimously found him “guilty” on all six counts. Pursuant to the Constitution, the president of Local 53, James Pratt, presided as judge at the hearing, but did not participate in the determination of guilt or innocence. After the hearing, Mr. Pratt, as judge, determined that defendant had caused $7,500.00 in damages to the Union, based upon the dues lost from five individuals who defendant allegedly successfully recruited for employment with a non-union company, as well as previously paid expenses for the training of those individuals. As a result, defendant was fined $7,500.00 by the Union.

Defendant did not pay this fine, and on January 14, 2011, the Union instituted this breach of contract action against him to recover the fine. Defendant responded by filing an unfair labor practice charge against the Union, which he subsequently withdrew. Thereafter, the Union and defendant filed cross motions for summary judgment. Following a hearing on the parties' motions, the trial court granted the Union's motion for summary judgment, ruling as follows:

I tell you what, I'm going to grant the [U]nion's Motion for Summary Judgment. I find by him not showing up at the hearing, he acquiesced to everything that they did.

He was paying what you call withdrawal dues. He was paying them something. He was paying them something every year, so he was paying the [U]nion something.

The court ordered defendant to pay the fine of $7,500.00 and granted the Union's request for attorney's fees, to be determined at a later date. At a hearing held on October 15, 2013, the trial court awarded attorney's fees to the Union in the stipulated amount of $12,500.00.

LAW AND ANALYSIS

By this appeal, defendant seeks review of the trial court's granting the Union's motion for summary judgment in its breach of contract action. A summary judgment is appropriate when there remains no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. Zeringue v. O'Brien Transp., Inc., 05–760 (La.App. 5 Cir. 4/11/06), 931 So.2d 377, 379, writ denied,06–1107 (La.9/1/06), 936 So.2d 205. Summary judgments are favored in the law and the rules should be liberally applied. Id. The summary judgment procedure shall be construed to accomplish the ends of just, speedy, and inexpensive determination of allowable actions. Id.

Appellate courts review a judgment granting a motion for summary judgment on a de novo basis. Gutierrez v. State Farm Fire & Cas. Ins. Co., 13–341 (La.App. 5 Cir. 10/30/13), 128 So.3d 509, 511. Thus, this Court uses the same criteria as the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Id.

Procedurally, the court's first task on a motion for summary judgment is determining whether the moving party's supporting documents—pleadings, depositions, answers to interrogatories, admissions and affidavits—are sufficient to resolve all material factual issues. Murphy v. L & L Marine Transp., Inc., 97–33 (La.App. 5 Cir. 5/28/97), 695 So.2d 1045, 1047 (citing LSA–C.C.P. Art. 966(B)). To satisfy this burden, the mover must meet a strict standard of showing that it is quite clear as to what is the truth and that there has been excluded any real doubt as to the existence of a genuine issue of material fact. Id. In making this determination, the mover's supporting documents must be closely scrutinized and the non-mover's indulgently treated. Id. Since the moving party bears the burden of proving the lack of a material issue of fact, inferences to be drawn from the underlying facts before the court must be viewed in light most favorable to the non-moving party. Id.

If the court determines that the moving party has met this onerous burden, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Murphy, supra.Louisiana Code of Civil Procedure article 967 outlines the non-moving party's burden of production as follows:

When a motion for summary judgment is made and supported ..., an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

Summary judgment is appropriate when all the relevant facts are marshalled before the court, the marshalled facts are undisputed, and the only issue is the ultimate conclusion to be drawn from those facts. Id.

With these precepts in mind, we now turn to the case at hand.

This Court has recognized that unions are not prohibited from fining their members for offenses committed while they are members, if the member has been afforded due process and the fines are reasonable. Int'l Bhd. of Elec. Workers Local Union v. Jouandot, 05–269 (La.App. 5 Cir. 1/17/06), 921 So.2d 1054, 1057 (citing 29 U.S.C. § 411(a)(5)).³ Therefore, defendant's adjudication and fine were proper if the following factors were appropriately satisfied: (1) defendant, while a member of the union, violated the Constitution; (2) he was afforded due process; and (3) the fine is reasonable.

Because we conclude infra that genuine issues of material fact remain with respect to whether defendant was afforded due process (the second factor), and the reasonableness of the fine imposed (the third factor), due to the limited nature of the record before us and in order to permit the trial court to conduct a full adjudication on the merits of all issues involved in this matter, we decline to...