Konen v. International Brotherhood of Teamsters

• Decision Date: 25 June 2001
• Docket Number: No. 00-3162,00-3162
• Citation: 255 F.3d 402
• Parties: (7th Cir. 2001) Jerome Konen, Plaintiff-Appellant, v. International Brotherhood of Teamsters, Local 200, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 402

255 F.3d 402 (7th Cir. 2001)

Jerome Konen, Plaintiff-Appellant, v. International Brotherhood of Teamsters, Local 200, Defendant-Appellee.

No. 00-3162

In the United States Court of Appeals For the Seventh Circuit

Argued February 16, 2001

Decided June 25, 2001

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 99 C 619--Charles N. Clevert, Judge.

Before Easterbrook, Manion, and Diane P. Wood, Circuit Judges.

Manion, Circuit Judge.

Jerome Konen sued his Union, the International Brotherhood of Teamsters, Local 200, alleging that the Union breached its duty of fair representation in violation of the Labor Management Relations Act ("LMRA"), and unlawfully retaliated against him for alleging wrongful conduct by Union officials in violation of the Labor Management Relations and Disclosure Act ("LMRDA"). The Union moved for summary judgment. The district court granted the motion, concluding that Konen's claim under the LMRA was untimely and that the Union did not violate the LMRDA because it never disciplined Konen. Konen appeals. We affirm.

I.

Jerome Konen was a member of Teamsters Local Union No. 200 ("Local 200" or "the Union") when he started working as a truck driver for Russel Metals in January 1996. Russel Metals and Local 200 were parties to a collective bargaining agreement ("CBA") governing the terms of Konen's employment. Local 200 is managed by its president, Seb Busalacchi, and secretary-treasurer, Frank Busalacchi. Joseph Cifaldi was the Local 200 business representative assigned to Russel Metals.

In October 1998, Konen drafted and circulated a petition among his co- workers that advocated the replacement of Cifaldi as the business representative. The petition read:

To whom it may concern, We as Local 200 members would like our business agent Joe Cifaldi replaced with a new business agent. Due to numerous accounts of mis- representation presently and during contract negotiation in September of 1997.

Konen personally asked all of his co- workers to sign the petition. Konen also delivered a copy of the petition to the leadman at another Russel Metals facility, who circulated it among members of the bargaining unit. When Konen circulated the petition, he did not explain what "numerous accounts of misrepresentation" had occurred.

After he collected the signatures and before he submitted the petition, Konen drafted an additional page of notes involving issues that he wanted to discuss with Union officials. Because Konen did not include this page with the petition, his co-workers did not see the page of notes when they received the petition. The additional page stated in part:

Business agent and union stewards Dan Ruper & Todd Schill took money from company to push to get contract through-- quoted by Tod Schill to Damen Albers & Scott Kasabusky all currently employed at Castle Metals.

Konen took the signed petition and page of notes to the Union Hall on November 2, 1998. He handed the petition to Frank Busalacchi, secretary-treasurer of Local 200. Busalacchi indicated to Konen that he would look into the matter. Konen then handed Busalacchi the additional page of notes, saying, "These are some of the issues." Konen added, "I don't know if it's true or not. It's something I was told. I don't know if it's even worth investigating." Busalacchi told Konen that it was a serious allegation, and that he would make sure that it was addressed immediately.

The following day, Frank Busalacchi gave the petition and page of notes to Local 200 president Seb Busalacchi ("Seb") and asked him to look into the allegations as soon as possible. Seb told Frank Busalacchi that he planned to set up a meeting with the Company to find out if there was any validity to the payoff accusations. Seb also met with Cifaldi to discuss the allegations. Seb asked Cifaldi if he accepted a bribe from Russel Metals to settle the 1997 CBA. Cifaldi called the allegation "entirely false." Seb also asked Cifaldi to notify the Company of the allegations and to set up a meeting with the Company to discuss the matter.

Cifaldi contacted Daniel Ruper, Konen's supervisor at Russel Metals. Ruper participated in the 1997 negotiations as a Union steward, but has since taken a supervisory position with Russel Metals. Cifaldi informed Ruper about Konen's allegations, and said that he would provide Ruper with a copy of the petition.

On November 4, 1998, Konen was called into a meeting with Ruper, Plant Manager Charlie Brown, and Union steward Tom Moe. At the meeting, Konen admitted that he authored the bribery allegation. He also asserted that the separate page of allegations was not part of the petition, to which Brown responded, "Well, that doesn't matter." Konen then acknowledged that he had no proof of the alleged misconduct, and that it was wrong for him to hand in the page of allegations. Brown suspended Konen pending further investigation.

The next day, Konen called Cifaldi to inform him that he had been suspended. Cifaldi advised Konen to file a grievance over the suspension. He also asked Konen to come to the Union hall for a meeting with Union and Company representatives about the bribery allegations.

At the meeting, Cifaldi and Seb Busalacchi represented Local 200, and Brown and Ruper represented the Company. The Union requested Company representatives to be present because the allegations in Konen's notes implicated both the Union and the Company in wrongdoing. Seb asked the Company representatives if they were aware of information that would substantiate the bribery allegations; they responded that they were not aware of any such information. Seb also asked Konen whether he had any evidence to substantiate his allegations. Konen responded by apologizing, admitting that he had no evidence to support his allegations, and that he never should have written them.¹ Konen also asserted that the page of allegations was not part of the petition. But he also acknowledged that he made a mistake, wanted to see the whole thing go away, and would go to the workplace to apologize to everyone.

After concluding its investigation, Russel Metals decided to terminate Konen. That decision was made by Plant Manager Brown and Corporate Industrial Relations Manager Bob Rohrer. Rohrer, who had the final authority to terminate Konen, stated that he fired Konen because he be lieved that Konen's allegations directly maligned Russel Metals and the way it deals with unions. Rohrer concluded that Konen's conduct constituted dishonesty under the terms of the CBA, and that Konen was subject to immediate discharge.

Russel Metals informed Konen of its decision in a November 6, 1998 letter signed by Plant Manager Brown, which stated in part:

Your employment is being terminated for dishonesty. You have admitted to personally preparing and disseminating in our workplace an employee petition that contains false, misleading, factually untrue and serious allegations of improper and unlawful actions being taken by representatives of the Company and Union during the Collective Agreement negotiations that occurred in 1997.

Before Konen received the letter, Cifaldi had called him to notify him of his termination and to advise Konen to file a grievance. According to Konen, Cifaldi indicated that he was angry at him, but he told Konen that his personal feelings toward him did not matter and that it was still Cifaldi's job to represent him. Konen filed a grievance on November 11, 1998, and a grievance meeting was scheduled for November 23.

Prior to the grievance meeting, Konen met with Cifaldi and a Union steward. Cifaldi asked Konen how he could attack the termination decision. Konen offered no suggestions, but reiterated that the page of notes was not part of the petition. Konen apologized again about the matter, and told Cifaldi that he was willing to do whatever was necessary to put the incident behind him.

Brown and Ruper represented Russel Metals at the November 23 grievance meeting. Brown again asked Konen if he authored the document containing the bribery allegations; Konen affirmed that he did write the allegations. Then Brown reaffirmed that Konen was terminated because the document he authored was dishonest and slanderous. Cifaldi asked Konen if he had a defense for his actions. Konen did not give an answer. Instead, he apologized and said that he should not have written the statements.

Later that day, Cifaldi sent Konen a letter informing him that the Union decided to deny his grievance. Konen's attorney wrote to the Union, requesting Local 200 to submit Konen's grievance to arbitration. Local 200's counsel responded by letter dated December 7, 1998, that the Union decided not to arbitrate Konen's grievance, and that the grievance procedure was at an end. No one has brought internal Union charges against Konen for the incidents that led to his discharge.

Konen sued Local 200 on June 3, 1999, alleging that the Union breached its duty of fair representation under sec. 301 of the LMRA, 29 U.S.C. sec. 185(a), and unlawfully retaliated against him for alleging wrongful conduct by Union officials, in violation of the LMRDA, 29 U.S.C. sec. 411 et seq. The Union moved for summary judgment. The district court granted the Union's motion, concluding that Konen's LMRA claim failed because it was untimely, and that his LMRDA claim failed because Local 200 never retaliated against Konen, as he was never disciplined by the Union but has retained all the rights and status of a full Union member. Konen appeals.

II.

Konen argues on appeal that the district court erred in granting summary judgment for the Union. We review de novo the district court's decision to grant summary judgment for Local 200, Crider v. Spectrulite Consortium, Inc., 130 F.3d 1238, 1241 (7th Cir. 1997), construing all facts, and drawing all reasonable inferences from those facts, in favor of Konen, the non-moving party. Oest v. Illinois Dep't. of...