Leavey v. Int'l Bhd. of Teamsters Theatrical Teamsters Local Union No. 817,

• Decision Date: 05 October 2015
• Docket Number: No. 13-cv-0705 (NSR),13-cv-0705 (NSR)
• Parties: THOMAS LEAVEY, Plaintiff, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS - THEATRICAL TEAMSTERS LOCAL UNION No. 817, and THOMAS J. O'DONNELL, Defendant.
• Court: U.S. District Court — Southern District of New York

THOMAS LEAVEY, Plaintiff, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS - THEATRICAL TEAMSTERSLOCAL UNION No. 817, and THOMAS J. O'DONNELL, Defendant.

No. 13-cv-0705 (NSR)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

October 5, 2015

OPINION & ORDER

NELSON S. ROMÁN, United States District Judge

Plaintiff Thomas Leavey, a member of the International Brotherhood of Teamsters — Theatrical Teamsters Local Union No. 817 ("Local 817" or the "Union"), initiated the instant action against Local 817 and Thomas J. O'Donnell ("O'Donnell," together with Local 817 or the Union, "Defendants") for refusing to provide access to documents and information in violation of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. §§ 414, 431(c), and 440; breach of the duty of fair representation in discriminating against Plaintiff in job referrals and in refusing to provide Plaintiff with job referral information, pursuant to Section 8 of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158, and Section 301(a) of the Labor-Management Relations Act, 1947 ("LMRA"), 29 U.S.C. § 158(a); and for discrimination in job referrals in retaliation for exercising his free speech rights, pursuant to the LMRDA, 29 U.S.C. §411 et seq.

Before the Court is Defendants' motion for summary judgment. For the following reasons, Defendants' motion is GRANTED in part and DENIED in part.

BACKGROUND

The following facts, unless otherwise noted, are based on the undisputed facts in this matter or support Plaintiff's version of events.

Plaintiff is and has been a member of Local 817 since 1974. (Pl.'s 56.1 ¶ 1.) O'Donnell has been the president of Local 817 since approximately January 2012 and was previously the Secretary Treasurer of Local 817 from 1990 to 2012. (Id. ¶ 2.) Local 817 is a labor organization as defined in Section 2(5) of the NLRA, 29 U.S.C. § 152(5). (Id. ¶ 3.) The Union is the exclusive collective bargaining agent for various captains, drivers, helpers, special equipment drivers, and warehousemen working in the motion picture, television, commercial, video, live event, theater, and concert hall industries. (Id. ¶ 4.) Plaintiff has worked as a captain, driver, and helper, among other things, since he began shaping with the Union in 1966. (Id. ¶ 59.) He first began working as a captain in the 1980s. (Id. ¶ 60.)

I. Union's Process for Referral and Captain Selection

Local 817 refers drivers, helpers, loaders, and other labor to employment through its hiring hall. (Pl.'s 56.1 ¶ 6.) The Union also refers captains to employment on television and film jobs; however, those referrals are not made through the Union's hiring hall. (Id. ¶ 7.) Captains are responsible for managing transportation on a production; working with producers to ensure a production's transportation, staffing, and driving needs are handled efficiently and cost-effectively; and supervising the set. (Id. ¶ 8.) A captain also enforces the terms of a collective bargaining agreement ("CBA") on a particular job to which the captain is assigned. (Id. ¶ 9.)

The Majors' Agreement is a CBA covering 23 major studios. (Id. ¶¶ 15-16, 113.) The Majors' Agreement does not cover every production, and, even to the extent it does cover a production, there are sometimes modifications. (Id. ¶ 15.)While there may be certain accommodations to the Majors' Agreement, O'Donnell does not put them in writing. (Id. ¶¶ 17-18.)

Article 3-A of the Majors' Agreement governs the selection of captains. (Id. ¶ 33.) When requested by a company, the Union submits the names of five available captains. (Id.) From there, the Company narrows down the list to three captains and thereafter the Union makes the final designation. (Id. ¶ 33.) This process is referred to as the "list of five." (Id. ¶ 34.) Captains not selected from a list of five are typically considered for the next production to the extent they are still available. (Id. ¶ 36.) In certain instances, a producer will request a captain by name, or O'Donnell recommends captains that are available and he feels are suited to the job. (Id. ¶ 33.) O'Donnell testified that he takes into account the demands of a given job, an employer's preferences, and the relative experience of captains; however, there is no written criteria governing how O'Donnell should select the initial list of five names. (Id. ¶ 37.) Additionally, O'Donnell considers his own interactions with the captain, feedback from prior employers, feedback from executive board members, and feedback from other captains in the selection process. (Id. ¶ 39.) O'Donnell does not track how he applies these factors. (Id. ¶ 40.) Often, the captain selection process is conducted over the phone, and O'Donnell does not keep notes or records of those calls. (Id. ¶ 35.) O'Donnell typically does not employ the list of five process for low budget films, and, in the event there are no available captains to create a list of five, O'Donnell may need to create a captain. (Id. ¶ 34.) On certain occasions, O'Donnell discusses producer feedback with captains, including negative feedback. (Id. ¶ 43.)

II. Plaintiff's Selection as Captain

Even in instances where management or producers have indicated they did not wish to work with Plaintiff, O'Donnell still has placed Plaintiff's name on the list of five. (Pl.'s 56.1 ¶45.) O'Donnell explained he does this when the industry is busy or when he attempts to talk a producer into giving Plaintiff a second chance. (Id. ¶ 45.)

In Plaintiff's opinion, he believed that the Union blacklisted him by slandering his reputation. (Id. ¶ 41.) He also testified that producers crossed his name off the list for potential captain positions so as not to "alienate" O'Donnell. (Id. ¶ 42.) Plaintiff was also told by O'Donnell that he was a "Class B captain." (Id. ¶ 48.)

Plaintiff experienced a decline in captain work beginning in October 2011. (Id. ¶ 48.) From 2006 to 2010, Plaintiff was ranked in the middle of the list of captains with regard to annual earnings; however, Plaintiff has ranked second-to-last from 2011 to the present. (Id.) From October 2011 to the present, Plaintiff has earned approximately $150,000 to $200,000 less than similarly situated captains. (Id.) Additionally, while Plaintiff worked approximately 149 days as a captain in 2011 (id. ¶ 63), he only worked 70 days as a captain in 2012 (id. ¶ 66) and 100 days as a captain in 2013. (Id. ¶ 68.) Plaintiff earned $186,500 in 2011 (id. ¶ 65), $154,000 in 2012 (id. ¶ 67), and $180,000 in 2013. (Id. ¶ 69.)

Plaintiff has received positive feedback from producers on various jobs, including his performance on the sets of "Premium Rush" and "Public Morals." (Id. ¶ 49.) In certain instances, Plaintiff was requested by producers to be a captain. (Id. ¶ 49.)

O'Donnell has had in-person and phone conversations with Plaintiff to discuss Plaintiff's complaints regarding the referral system and has never refused to meet with Plaintiff. Those meetings typically have occurred once a year over the past 10 years. (Id. ¶ 56.) During those meetings, Plaintiff told O'Donnell that senior captains should be offered work; however, O'Donnell told Plaintiff that producers have the right to refuse whomever they want. (Id. ¶ 57.)

III. Plaintiff's Alleged Free Speech

Plaintiff points to several instances in which he exercised his "free speech" rights. First, Plaintiff sets forth evidence regarding a series of incidents in which Plaintiff's support for certain individuals allegedly detracted from his ability to obtain captain work. It is undisputed that Mickey Fennell wanted to become a captain. (Pl.'s 56.1 ¶ 89.) Plaintiff was open regarding his support for Fennell to become a captain, and he believed he shared this support with Union officers. (Id. ¶ 90.) Plaintiff also supported Henry Boyle, whom Plaintiff testified lost work because he was outspoken regarding Union issues. (Id. ¶¶ 91, 93.) The Union did not object to Plaintiff's requests that Boyle work on jobs at which Plaintiff was the captain. (Id. ¶ 92.) The Union was aware of Plaintiff's support for Boyle as Plaintiff continued to request Boyle on his jobs. (Id. ¶ 94.) Plaintiff also supported John Brady in his attempts to become a member of the Union. (Id. ¶ 96.) Plaintiff offered to testify on Brady's behalf in Brady's lawsuit against the Union, but did not explicitly tell the Union he supported Brady's lawsuit. (Id.) However, Plaintiff believes that Union officers learned of Plaintiff's support for Brady through the "grapevine." (Id.)

Second, Plaintiff vocalized a series of grievances to union members or union officials. In 1995, Plaintiff lodged a complaint regarding the length of time it took for Maurice Fitzgerald to be appointed to a certain captain job, specifically that Fitzgerald was referred ahead of Plaintiff. (Id. ¶ 102.) In 2008, Plaintiff and other individuals working on the set of "30 Rock" sent a petition to the Union objecting to a trade of the Election Day holiday with the day following Thanksgiving Day. (Id. ¶ 99.) During a Union meeting, Plaintiff spoke out about this trade. (Id.) In November 2010, Plaintiff complained to O'Donnell regarding the working conditions onthe set of "Premium Rush." (Id. ¶ 97.) In particular, Plaintiff felt the producers were sending him a message by providing him a small, noisy, crowded, and unsecure working space. (Id.)

Third, Plaintiff sent O'Donnell (and in one instance, O'Donnell and the Union's executive board) several correspondence regarding complaints with respect to union activity. In June 2002, Plaintiff sent a letter to O'Donnell and the Union executive board regarding the appointment of Whalen over Plaintiff for a particular captain job. (Id. ¶ 103.) Plaintiff claimed he should have received the job because he was senior to Whalen. (Id.) In July 2005, Plaintiff sent a letter to O'Donnell stating that Plaintiff was being blacklisted by the Union in that his name was excluded from the captains list. (Id. ¶ 104.) In June 2012, ...