Interntl. Bhd. of Elec. Workers v. Smith

• Decision Date: 10 April 1992
• Docket Number: No. H-91-23,H-91-23
• Court: Ohio Court of Appeals
• Parties: , 125 Lab.Cas. P 10,724 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 986, Appellee, v. SMITH, Appellant.

Page 652

76 Ohio App.3d 652

602 N.E.2d 782, 125 Lab.Cas. P 10,724

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 986, Appellee, v. SMITH, Appellant.

No. H-91-23.

Court of Appeals of Ohio, Sixth District, Huron County.

Decided April 10, 1992.

Kalniz, Iorio & Feldstein, Ted Iorio and Ronald L. Rahal, Toledo, for appellee.

Joseph R. Stewart, Columbus, for appellant.

ABOOD, Judge.

This is an appeal from a summary judgment granted by the Norwalk Municipal Court in favor of plaintiff-appellee, International Brotherhood of Electrical Workers, Local Union No. 986, in an action to collect a disciplinary fine previously imposed upon one of its members, defendant-appellant Mary Lou Smith.

Appellant sets forth one assignment of error:

"The trial court erred in granting summary judgment in favor of plaintiff-appellee."

The facts that are relevant to a determination of the issues raised by this appeal are as follows. Sometime between March 23, 1989 and April 5, 1989, appellant, a member of appellee, International Brotherhood of Electrical Workers, Local Union No. 986 ("union"), voluntarily informed her employer GTE North Incorporated ("GTE"), that a fellow employee and union member, Rita Kobak, intended to falsify her time sheet of March 23, 1989. Although Kobak was first discharged, following an arbitration which was held on November 2, 1989 she ultimately received a thirty-day suspension for her violation. On November 13, 1989, John Arbogast, the business agent for the union, filed an internal union charge against appellant for voluntarily informing to the employer on another union member in violation of Section 1, subsections (1) and (7), Article XXVII, of the union's constitution. On January 6, 1990, the trial board for the union found appellant guilty as charged, suspended her as a union member for approximately one year and fined her $5,000. Appellant did not attend the proceedings before the trial board and did not appeal its decision within the union. On October 29, 1990, the union filed a complaint in the Norwalk Municipal Court which sought to reduce to judgment $4,960 of the $5,000 fine. Attached to the complaint were unverified portions of the union's constitution and bylaws. On November 23, 1990, appellant filed an answer which raised the defenses that the amount of the fine is unreasonable, that the union failed to provide appropriate notice and due process in assessing the fine, and that the fine violates the Ohio and federal Constitutions.

On February 4, 1991, the union filed a motion for summary judgment to which it attached five unverified exhibits. On February 15, 1991, appellant filed a brief in opposition to the union's motion for summary judgment, to which she attached the affidavits of herself, Jeraldine J. McClure and attorney Joseph R. Stewart. Appellant argued, in part, that the unverified exhibits that were attached to the union's motion for summary judgment were not properly before the trial court because they were not "in the fashion required by Ohio Civil Rule 56." Appellant did not otherwise dispute the authenticity of the documents. On March 4, 1991, the union filed a reply and the affidavit of Arbogast.

The record that was before the trial court for consideration of the motion for summary judgment consisted of the pleadings, the various affidavits filed by both parties, and the unverified documents filed by the union.

The unverified documents included the following:

(1) a copy of a letter dated November 19, 1989, sent by the union to appellant, which notified her to appear before the trial board on January 6, 1990 to answer charges filed against her and advised her of the nature of the charges, who filed them, her right to bring witnesses, present evidence and cross-examine witnesses and to be represented by a union member. A photostatic copy of appellant's signature on a certified return receipt dated December 2, 1989, was reproduced on the bottom of the copy of the letter (2) the union's constitution which provides, under Article XXVII, that:

"Sec. 1. Any member may be penalized for committing any one or more of the following offenses:

"(1) Violation of any provision of this Constitution and the rules herein, or the bylaws, working agreements, or rules of a L.U.

" * * *

"(7) Wronging a member of the I.B.E.W. by any act or acts (other than the expression of views or opinions) causing him physical or economic harm[.]";

(3) a copy of a letter dated January 6, 1990, signed by the union and addressed to appellant, which advised her of the trial board's decision and that:

"Failure to comply with this Trial Board Decision will result in the Local Union collecting the penalties levied as provided for in Article XII, Section 12 of the Local Union Bylaws.

"The Trial Board of Local Union 986 refers you to Article XXVII, Sections 12 and 13 of the I.B.E.W. Constitution which read as follows:

" 'Any member who claims an injustice has been done him by any L.U. or trial board or by and Railroad Council, may appeal to the I.V.P. any time with [sic ] forty-five (45) days after the date of the action complained of * * *.'

" 'No appeal for revocation of an assessment shall be recognized unless the member has first paid the assessment, which he can do under protest. When the assessment exceeds fifty ($50.00) dollars, payments of not less than forty ($40.00) dollars in monthly installments must be made. The first monthly installment must be made within fifteen (15) days from the date of the decision rendered and monthly installments continued thereafter or the appeal will not be considered.'

"If you have any questions regarding the above quoted article or sections of the Constitution, you are to contact the Chairman of the Executive Board for clarification of assistance as soon as possible.

"A copy of the International Constitution of the I.B.E.W. and the Local Union bylaws is being enclosed with this notification."

Attached to the letter was a photostatic copy of appellant's signature on a certified return receipt dated January 17, 1990;

(4) the union's bylaws which provide, under Section 4, Article XII, that:

"All fines and penalties levied, imposed, or assessed against a member of the IBEW under the IBEW Constitution and the bylaws of this Local Union, shall constitute a debt owed by the individual member to this Local Union and may be recovered as a debt owed by the individual member to the Local by a lawsuit or action at law brought by the Local Union. If it is necessary for the Local to institute legal proceedings in order to recover any such debt, the individual member shall also be liable for all costs of said proceedings, together with a reasonable attorneys fee incurred by the Local, the amount thereof to be fixed by the Court[.]"; and

(5) excerpts from the transcribed proceedings of the Kobak arbitration that was held on November 2, 1989.

In his affidavit, Arbogast stated that appellant was not required to join the union and that she had the option of becoming a "service fee member"; that the union provides a copy of its constitution and bylaws to any member who requests them; that appellant never requested them; and that had appellant utilized the intra-union hearing and appellate procedures, it could have resulted in no discipline having been imposed upon her or in a reduction of the amount of the fine imposed.

In her affidavit, appellant stated that on March 23, 1989, she heard Kobak state that she intended to complete her time sheet to indicate that she had worked a full eight hours, even though she had not; that she subsequently informed the supervisor of Kobak's intent; that she did not intend to cause harm to Kobak; that she was not provided with a copy of the union's constitution or bylaws prior to March 23, 1989; that even had she been so provided, she would not have thought " * * * that advising a supervisor truthfully of an employee's intent to falsify a time sheet would violate the constitution or bylaws"; and that her monthly take-home salary is approximately $1,332.

In her affidavit, McClure stated that she was the Manager of Labor Relations for GTE; that the reporting of the falsification was in compliance with the GTE standards; and that Kobak's financial loss from her thirty-day suspension was approximately $1,698.

In his affidavit, Stewart, who is appellant's attorney in this case, stated that he is Associate General Counsel for GTE; that falsification of time sheets will result in higher rates paid by Ohio subscribers of GTE telephone service; that the Public Utilities Commission of Ohio could punish GTE for inaccurate labor expense records; that falsification of time sheets tends to subvert the ratemaking process; and that it is his opinion that the fine imposed on appellant by the union is unreasonably high.

On April 18, 1991, the trial court filed its judgment entry in which it found, in pertinent part that:

" * * * defendant was a voluntary member of the International Brotherhood of Electrical Workers; that disciplinary proceedings were initiated against her in accordance with the constitution and by-laws of the IBEW; that defendant was given notice of a hearing on said disciplinary proceedings and failed to appear; that the union imposed a fine against defendant and notified her both of the fine and procedure [sic ] for appeal. The defendant failed to appeal as provided in the union constitution."; and granted the union's motion for summary judgment. It is from this judgment that appellant brings this appeal.

In her sole assignment of error, appellant contends that the trial court erred in granting appellee's motion for summary judgment. In support thereof, appellant argues that: (1) the facts which the union attempted to prove by its unverified documents " * * * were placed in issue by the affidavits submitted in support of Smith's brief in opposition to the Union's motion for summary judgment"; (2) the...