McLinn v. Boeing Co., 87 1243 C.

• Decision Date: 09 June 1989
• Docket Number: No. 87 1243 C.,87 1243 C.
• Citation: 715 F. Supp. 1024
• Parties: Robert G. McLINN, Plaintiff, v. The BOEING COMPANY and International Association of Machinists and Aerospace Workers, Defendants.
• Court: U.S. District Court — District of Kansas

715 F. Supp. 1024

Robert G. McLINN, Plaintiff, v. The BOEING COMPANY and International Association of Machinists and Aerospace Workers, Defendants.

No. 87 1243 C.

United States District Court, D. Kansas.

June 9, 1989.

Margaret P. Mathewson, Fletcher & Mathewson, Wichita, Kan., for plaintiff.

Paul L. Thomas, Render & Kamas, Douglas L. Stanley, Foulston, Siefkin, Powers & Eberhardt, Wichita, Kan., for defendants.

MEMORANDUM AND ORDER

CROW, District Judge.

This case comes before the court on the defendants' separate motions for summary judgment. Plaintiff, a former employee of defendant, the Boeing Company (Boeing), brings this action under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, against Boeing and his collective bargaining agent, International Association of Machinists and Aerospace Workers (IAM). Plaintiff alleges that Boeing, by terminating his employment in March of 1986, breached the collective bargaining agreement covering his job. Plaintiff also alleges that IAM breached its duty of fair representation in handling plaintiff's grievance filed in regards to his termination. Defendants seek summary judgment on the common issues of whether plaintiff's action was timely brought and whether IAM breached its duty of fair representation.

In ruling on a motion for summary judgment, the trial court conducts a threshold inquiry of the need for a trial. Without weighing the evidence or determining credibility, the court grants summary judgment when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2511-12.

An issue of fact is "genuine" if the evidence is sufficient—significantly probative or more than merely colorable—for a reasonable jury to return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510. An issue of fact involves "material" facts when proof thereof might affect the outcome of the lawsuit as determined by the controlling substantive law. Id. 477 U.S. at 249, 106 S.Ct. at 2510. Where there is but one reasonable conclusion as to the verdict and reasonable minds would not differ as to the import of the evidence, summary judgment is appropriate. 477 U.S. at 250, 106 S.Ct. at 2511.

The movant's burden under Fed.R.Civ.P. 56 is to make an initial showing of the absence of evidence to support the nonmoving party's case. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 345. (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987). The movant must specify those portions of "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits if any," which demonstrate the absence of a genuine issue of fact. Id. Fed.R.Civ.P. 56(c). "Conclusory assertions to aver the absence of evidence remain insufficient to meet this burden." Windon, 805 F.2d at 345 n. 7. The movant, however, does not have the burden to prove a negative, that is, to disprove the nonmoving party's evidence. Id. at 346. Nor do the claims need be proven false; the movant must only establish that the factual allegations are without legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987).

The opposing party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts supported by the kinds of evidentiary materials listed in 56(c). Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. These facts must demonstrate a genuine issue remaining for trial and not just "some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The evidence of the nonmoving party is deemed true and all reasonable inferences are drawn in his favor. Windon, 805 F.2d at 346. "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." (citation omitted.) Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed. 2d 265 (1986).

After reviewing the portions of the depositions submitted by the parties, the court considers the following statements of fact to be uncontroverted for purposes of these motions.

1. Plaintiff was hired as a welder by Boeing on June 5, 1978, and held that position until his discharge on or about March 24, 1986. During his employment, plaintiff was a member of IAM and the collective bargaining unit exclusively represented by IAM.

2. A few months after hiring plaintiff, Boeing also employed another welder, David Wray. Plaintiff and Wray often worked in the same shop during their joint employment at Boeing. Plaintiff and Wray saw each other socially, and plaintiff considered Wray to be a friend.

3. Plaintiff perceived a turning point in their friendship when in January or February of 1986, Wray brusquely refused to assist plaintiff with a welding job. Plaintiff avoided speaking to Wray for a month or more. Plaintiff requested Wray to remove three old cars owned by Wray and stored on plaintiff's property.

4. When plaintiff's union steward was about to retire, Wray and Charlie Stoops asked plaintiff to run for the position. At the election meeting, Wray nominated someone else for union steward. The election resulted in a tie with plaintiff losing on the toss of a coin. On March 7, 1986, plaintiff was told that the next Monday he would be transferred to another work area apart from Wray.

5. On March 8, 1986, plaintiff overheard Wray say to Dudley Hayden: "Well, it's about time." After Wray left, plaintiff asked Hayden what Wray was referring to when he made that statement. Hayden explained that Wray meant it was about time that plaintiff was transferred to another shop. Angered by this comment, plaintiff followed Wray to his station and without saying a word struck him on the jaw. Wray did not strike back and said, "Well, I hope you got your money's worth." Plaintiff responded: "Well, I'm not through with you yet." Wray then walked up to his supervisor and requested that Security be called. Security personnel escorted plaintiff and Wray out of the plant, and they were advised of their suspension pending an investigation.

6. A few days after the incident, a Boeing representative interviewed plaintiff at his home and took a written statement. On March 24, 1986, Boeing discharged plaintiff for his violation of the no-fighting rule. Wray was then advised that he was reinstated without back pay during his suspension.

7. Prior to this incident, plaintiff was aware of Boeing's policy against fighting and had read Boeing's rule book on that matter. When he struck Wray, plaintiff believed he would probably be terminated as a result. Plaintiff admits he violated the Boeing rule.

8. On or about March 24, 1986, plaintiff went to the IAM office and requested a grievance to be filed on his termination. Dale Moore, a business representative for District Lodge 70 of the IAM who was assigned to Local 834 at Boeing, interviewed plaintiff about his termination and typed a grievance containing plaintiff's allegations which plaintiff signed.

9. Moore has a standard procedure in handling and processing grievances. After the employee fills out a complaint form, Moore reviews the collective bargaining agreement to determine the contractual basis for the grievance and drafts the grievance. Moore next presents the grievance to Boeing's department of labor and discusses it several times with one or more individuals with that department in an effort to improve the employee's situation, particularly if he has been terminated. Moore investigates the grievance by interviewing the employee's union steward and any witnesses to the incident. If no concessions are made by the labor department, Moore decides whether arbitration is potentially successful based upon his investigation and company discussions.

10. On March 24, 1986, after concluding the discussion with plaintiff, Moore filed a grievance contesting plaintiff's discharge. In handling the grievance, Moore interviewed plaintiff and Wray. He discussed the grievance with the manager of the tooling department, the general supervisor, the first level supervisor, and the union steward. Moore also reviewed the security investigation files in which statements from plaintiff, Wray and other witnesses were kept.

11. From his investigation, Moore determined the facts were undisputed that plaintiff struck Wray after following him back to the work station and that plaintiff had thrown the only blow. The Boeing "anti-fighting" policy provided in pertinent part: "Dismissal is the standard penalty when blows are struck in other than necessary self defense, or when any weapon is used or displayed in a threatening manner."

12. Over approximately twenty days, Moore spent 10 hours investigating plaintiff's grievance and attempting to obtain his reinstatement from senior management at Boeing. Moore talked to labor department personnel on approximately eight occasions during his investigation urging that plaintiff be allowed to return to work, but Boeing refused reinstatement.

13. During the pendency of the union's handling of plaintiff's grievance, Moore received the two arbitration decisions in the George Tong-Thomas Carr grievances, in which both were terminated also for fighting on the company premises. One arbitrator denied Tong's grievance, but another arbitrator granted Carr's grievance in part awarding reinstatement with backpay except for a...