Neal v. Newspaper Holdings, Inc.

• Decision Date: 05 November 2003
• Docket Number: No. 02-2126.,No. 02-2127.,02-2126.,02-2127.
• Citation: 349 F.3d 363
• Parties: Rodney NEAL and Anthony Brandon, Plaintiffs-Appellants, v. NEWSPAPER HOLDINGS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

349 F.3d 363

Rodney NEAL and Anthony Brandon, Plaintiffs-Appellants, v. NEWSPAPER HOLDINGS, INC., Defendant-Appellee.

No. 02-2126.

No. 02-2127.

United States Court of Appeals, Seventh Circuit.

ARGUED January 7, 2003.

DECIDED November 5, 2003.

Ora J. Baer, (argued), II, Champaign, IL, for Plaintiff-Appellant.

Donan B. McAuley (argued), Rock Island, IL, for Defendant-Appellee.

Before COFFEY, ROVNER, and EVANS, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

After losing their jobs with Newspaper Holdings, Inc. ("NHI"), Rodney Neal and Anthony Brandon each filed a so-called "hybrid" section 301/fair representation action against NHI and their union pursuant to section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, and sections 8(b) and 9(a) of the National Labor Relations Act, 29 U.S.C. §§ 158(b), 159(a). See generally DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 163-65, 103 S.Ct. 2281, 2290-91, 76 L.Ed.2d 476 (1983); Breininger v. Sheet Metal Workers Int'l Ass'n Local Union No. 6, 493 U.S. 67, 86-87, 110 S.Ct. 424, 436, 107 L.Ed.2d 388 (1989). They contended that the company had discharged them in breach of the collective bargaining agreement between NHI and the union and that the union in turn had breached its fiduciary duty to them as union members by failing to pursue timely grievances on their behalf. The union was dismissed by stipulation from both suits after Neal and Brandon settled with it, leaving the company as the sole defendant. The district court consolidated the two suits for decision and subsequently entered summary judgment in favor of NHI, reasoning that the plaintiffs had not shown that the union had breached its duty of fair representation, as they must in order to succeed on claim under section 301. See, e.g., Filippo v. Northern Indiana Public Serv. Corp., 141 F.3d 744, 748 (7th Cir.1998). We affirm.

I.

NHI operates a newsprint business in Danville, Illinois under the name Commercial-News. Neal and Brandon worked for NHI from July 1998 (when NHI acquired Commercial-News) until January 2001, when each was fired. Both men were members of the Graphics Communications International Union, Local No. 657C ("GCIU"), which served as their bargaining representative.

Neal was fired after he failed to report for work on two days in January 2001. NHI employees were required to report anticipated absences before their shifts began; but it was common practice for employees simply to call in and leave a message on their supervisor's voicemail. When illness caused Neal to miss his scheduled shifts on January 14 and 15, 2001, he left messages on each of those days prior to the beginning of his shift on the voicemail of Mike Latoz, his supervisor and foreman. Nonetheless, when he reported for work on January 18, Latoz informed him that NHI was terminating him for having missed his shifts on the 14th and 15th and for having failed to report his absence in advance as the company required.

Neal contacted George Wilson, his shop steward (referred to within the union as the chapel chairman) and asked Wilson what the union was going to do about his discharge. Wilson told Neal that he needed some proof that Neal had telephoned in to report his absences and suggested that Neal obtain his calling records from the telephone company. In the meantime, Wilson took it upon himself to check Latoz's office voicemail, where he found evidence that Neal had, in fact, left messages to advise NHI that he would not be reporting for work on the 14th and 15th. Wilson made a tape recording of those messages and gave the tape to Neal. Wilson also discussed Neal's discharge with Latoz and Scott Porter, NHI's Production Director, on January 24. Wilson confronted Latoz with Neal's messages but Latoz, according to Wilson, denied knowing about them or how they got onto his voicemail. After meeting briefly in private with Porter, Latoz informed Wilson that the company would not rehire Neal. Two weeks after Neal was fired, Wilson advised him that the discharge decision was final; he also informed Neal that the time for filing a grievance had already expired.

At the time that Neal and Brandon were discharged, the collective bargaining agreement between GCIU and NHI contained the following provision regarding employee grievances:

A grievance hereunder shall be defined as any dispute arising during the term of this agreement involving interpretation or application of a specific provision of this Agreement. The employee or employees involved must discuss any such grievance with their chapel chairman and with the foreman ... within five (5) regular working shifts following the day upon which the event giving rise to the grievance occurred. If either party desires to process further such grievance referred to above, then it must be referred to the Joint Standing Committee [made up of two representatives appointed by the employer and two appointed by the union] within [ten] (10) regular working shifts following the day upon which the event giving rise to the grievance occurred.

Collective Bargaining Agreement, § XIV(1). Neal and Brandon both had been involved in the negotiations that culminated in the agreement containing this provision. Wilson testified that it was GCIU's practice to require a union member to submit a written grievance request form when he wished the union to formally pursue a grievance on his behalf; Wilson would then transmit the grievance to NHI. According to Wilson, this requirement had been in place for years and was common knowledge among employees of the pressroom, where both Neal and Brandon worked. Neal testified in his deposition that he had asked Wilson to file a grievance on his behalf, but it is undisputed that Neal never tendered a written grievance form to Wilson or any other union official. Wilson had filed grievances on Neal's behalf in the past, but on those occasions Neal had completed written grievance forms. Neal Deposition Exs. 2, 4, 5. Not having received such a form on this occasion, Wilson did not pursue a grievance challenging Neal's termination.

NHI terminated Brandon after he refused a last-minute demand that he work overtime for the company. Brandon was but fifteen minutes away from the end of his shift on the evening of January 19, 2000, when Charles Lindsay, the assistant supervisor of the pressroom, informed Brandon that he could not leave as scheduled at 10:00 p.m. because the company had overtime work for him to do. Brandon, whose next shift was scheduled to begin at 6:00 a.m. on the following day (January 20), refused the demand and left work at 10 o'clock. Brandon was of the view that because the collective bargaining agreement was silent as to whether or not overtime work was mandatory, he was not obligated to comply with Lindsay's demand. But when Brandon reported for work the following morning, Latoz, his supervisor, informed him that the company had terminated him for insubordination.

NHI previously had warned Brandon that the failure to complete an assigned work shift could result in his termination. On April 5, 1999, Brandon received a written warning from Latoz after he had refused to stay at work for a scheduled shift two days earlier. Latoz's memorandum concluded with the following admonition:

Whenever you are assigned a work shift, you are expected to be here and work that shift. Your behavior ... is insubordination by refusing to stay and work and refusing to follow a direct order by your supervisor. Any repeated incident of the above will result in discipline up to and including termination.

Brandon Deposition Ex. 5.

On January 21, Brandon spoke with Wilson about his termination. According to Brandon, Wilson agreed that his discharge was "wrongly done" (Brandon Deposition at 18) although by Brandon's own account the two did not discuss the facts underlying his discharge at that time (id.). Brandon asked Wilson to do "[a]ll that he could possibly do" to secure his reinstatement. Id.

Following Wilson's conversation with Brandon, Latoz spoke with Wilson and told him why Brandon had been fired; Lindsay and other pressroom employees also recounted what had happened. Wilson asked these individuals no questions; he simply listened to their accounts. Believing that employees were obligated to work overtime if asked to do so by a supervisor, Wilson concluded that there was "no evidence of Mr. Brandon not being guilty of his termination." Wilson Deposition at 29.

On February 21, 2000, just over four weeks after NHI fired him, Brandon asked Wilson for a grievance form so that he could protest his discharge. As in Neal's case, Wilson testified that GCIU normally files a grievance only after a union member presents a written grievance form to the chapel chairman. Wilson said that it was not his obligation to prepare a grievance for a union member; instead, he simply filed the grievance with the company after the employee filled out the form. Like Neal, Brandon had completed grievance request forms on prior occasions. Brandon Deposition Exs. 2-4. As it turned out, the form that Wilson gave to Brandon was not the correct form. Having previously served as a union representative (Brandon not only had participated in negotiations over the collective bargaining agreement in effect at the time of his discharge, but had served as assistant chapel chairman prior to 1998), Brandon had the appropriate form in his locker at NHI. He was able to retrieve the correct form and after his attorney completed the form, Brandon tendered it to Wilson on February 28. Wilson told Brandon that he would pass the form on to NHI, and he (eventually) did so, although he considered the grievance untimely; NHI received the form on March 7, 2000.

On March 8, 2000, the day after it received Brandon's grievance, NHI determined that it was time-barred and so advised Wilson by letter. On or about March 21, Wilson gave Brandon a copy of that letter.

Based on the...