Pia v. URS Energy & Constr., Inc., 3:16-cv-00045

CourtUnited States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
Writing for the CourtROBERT W. PRATT, District Judge
Citation342 F.Supp.3d 858
Parties Marc Joseph PIA, Plaintiff, v. URS ENERGY & CONSTRUCTION, INC. and AECOM, Defendants. Jerry Oppat, Plaintiff, v. URS Energy & Construction, Inc. and AECOM, Defendants.
Decision Date24 October 2018
Docket Number3:16-cv-00045,3:16-cv-00046

342 F.Supp.3d 858

Marc Joseph PIA, Plaintiff,
v.
URS ENERGY & CONSTRUCTION, INC. and AECOM, Defendants.


Jerry Oppat, Plaintiff,
v.
URS Energy & Construction, Inc. and AECOM, Defendants.

3:16-cv-00045
3:16-cv-00046

United States District Court, S.D. Iowa, Eastern Division.

Signed October 24, 2018


342 F.Supp.3d 864

Marc A Humphrey, Humphrey Law Firm, P.C., Des Moines, IA, for Plaintiff.

Colleen G. DeRosa, Ogletree Deakins Nash Smoak & Stewart PC, Chicago, IL, Patrick R. Martin, Ogletree Deakins Nash Smoak & Stewart PC, Minneapolis, MN, Brian Lee McDermott, Jackson Lewis PC, Indianapolis, IN, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ROBERT W. PRATT, District Judge

Before the Court is Defendants URS Energy & Construction, Inc. (URS) and AECOM's Motion for Summary Judgment filed October 2, 2017. ECF No. 48. Plaintiffs Marc Pia and Jerry Oppat filed a resistance to Defendants' Motion on October 23, 2017. ECF No. 54. Defendants filed a reply on November 2, 2017. ECF No. 65. This Court heard oral arguments on the motion on December 13, 2017. See ECF No. 75. Following oral argument, this Court entered an Order staying the case pending a decision by the Iowa Supreme Court. ECF No. 76. On June 22, 2018, the parties submitted a Joint Status Report, notifying the Court that the Iowa Supreme Court had issued its decision. ECF No. 79. After the stay was lifted, the parties filed supplemental briefs supporting their positions. ECF Nos. 82, 89, 90. The matter is fully submitted.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Pia is a resident of Georgia, and Plaintiff Oppat is a resident of Montana. ECF No. 48-2 ¶¶ 3, 4. Both are employed as pipefitters and are members of United Association of Plumbers & Pipefitters (UA) Local 364 in Colton, California. Id. ¶ 5. Plaintiff Pia has worked as a union journeyman pipefitter since 2000. ECF No. 54-2 ¶ 1. Plaintiff Oppat has worked as a union journeyman pipefitter for over twenty-five years. Id. Plaintiffs receive referrals for work from local unions throughout the country and travel around working on various projects for extended periods of time. ECF No. 48-2 ¶ 5. In 2014, Plaintiffs received a referral from UA Local 125 in Keokuk, Iowa, to work for Defendant URS, a subcontractor on a project constructing the Iowa Fertilizer Plant in nearby Wever, Iowa (the Project).Id. ¶¶ 1, 6. On October 22, 2014, Plaintiffs began working for Defendant URS on the Project in the Wachs Tooling group, which required them to use a Wachs machine to cut industrial pipe. Id. ¶¶ 7, 12. For the

342 F.Supp.3d 865

majority of their employment with Defendant URS, Plaintiff Oppat worked as a pipe foreman and Plaintiff Pia worked as a pipefitter on Oppat's crew. Id. ¶ 13. Plaintiffs trained other employees on the jobsite on how to operate the Wachs machines. ECF No. 54-2 ¶ 3.

Defendant AECOM acquired Defendant URS effective October 17, 2014. ECF No. 48-2 ¶ 2. Plaintiffs' employment with URS was governed by a collective bargaining agreement (CBA) called the National Construction Agreement (NCA). Id. ¶ 14. Plaintiffs deny ever receiving copies of the NCA. ECF Nos. 54-1 ¶¶ 14, 15, 16; 54-2 ¶¶ 4, 5. Article 13 of the NCA provides a procedure through which union employees can grieve disputes arising under the NCA, including decisions to terminate employment. ECF Nos. 48-2 ¶ 15, 48-3 at 194–95. Article 19 of the NCA governs safety on the jobsite, providing that employees are "bound by the safety rules and regulations as established by the Employer in accordance with the Construction Safety Act and [the Occupational Safety and Health Act (OSHA) ]," and that employers are responsible for "assur[ing] safe working conditions for [their] employees." ECF Nos. 48-2 ¶ 16, 48-3 at 198. Article 20 provides in part that "[a]ny employee who participates in or encourages any activities which interfere with the normal operation of the project shall be subject to disciplinary action, including discharge, and if justifiably discharged for the above reasons, shall not be eligible for rehire on the same project for a period of not less than ninety (90) days." ECF Nos. 48-2 ¶ 17, 48-3 at 198–200.

Defendant URS published and disseminated the Project Job Rules and Regulations that applied to all URS employees on the Project. ECF No. 48-2 ¶ 18. Plaintiffs both signed forms acknowledging they had received copies of the Project Job Rules and Regulations and agreed to comply with them. Id. ¶ 19; see ECF No. 48-3 at 104–12, 114–22. Category 1 of the Project Job Rules and Regulations is entitled "Zero Tolerance Offenses." ECF No. 48-3 at 110, 120. That section provides, "Category 1 violations will result in immediate termination of employment and employee will not be eligible for re-hire on the project" by Defendant URS. Id. at 110, 120. Such Zero Tolerance Offenses include "[w]illful or gross negligence of Security, Safety or Fitness for Duty Rules and Regulations" and "[v]erbal abuse, violence or threats of violence to other employees or fellow workers." Id. at 110–11, 120–21.

Both Plaintiffs acknowledge that, as union employees covered by the NCA, they could challenge Defendant URS's termination of their employment through the grievance process detailed in the NCA. ECF No. 54-1 ¶ 22. Plaintiffs allege they had never filed a grievance prior to their respective terminations from employment with URS. Id. Plaintiff Pia alleges he attempted to file a grievance following his termination but the local union hall refused to help him. Id. Plaintiffs acknowledge that had they brought grievances pursuant to the NCA, they would have alleged the same facts alleged in this action. Id. ¶ 23.

Defendants conducted daily safety meetings on the work site, which both Plaintiffs attended. ECF No. 1 ¶ 14.1 Plaintiffs repeatedly

342 F.Supp.3d 866

raised safety concerns during the meetings regarding the work site, including concerns relating to the workers' parking lot, which Defendant URS did not own or control but said it would take care of any issues involving the lot because its employees parked there. ECF Nos. 48-2 ¶ 25, 54-2 ¶ 13. Plaintiff Pia accused Defendants of violating safety standards established by OSHA. See ECF No. 1 ¶ 22. Plaintiff Oppat, as Pia's foreman, actively voiced his support for Pia in raising the safety issues. See id. ¶¶ 25, 31–32. Plaintiffs allege that at meetings on February 13 and 14, 2015, Steve Newman, a general foreman on the project and union member, threatened to fire any employee who continued to raise concerns that the jobsite parking lot was unsafe. ECF Nos. 1 ¶¶ 18–20, 29; 48-2 ¶ 24; 54-2 ¶ 13. Newman was a pipefitter who worked on the Project from August 18, 2014 through March 12, 2015. ECF No. 48-2 ¶ 27. Newman did not have any authority to fire anyone because he was not an employee of either Defendant and he was not involved in or consulted about the decisions to terminate Plaintiffs' employment, id. ¶ 28; ECF No. 66 ¶¶ 13, 14; however, Plaintiffs assert they both understood that Newman, as their general foreman, had the power to terminate their employment, ECF No. 54-1 ¶ 28. Plaintiffs also allege they raised safety concerns to Newman relating to a large, unbarricaded hole in the ground at the jobsite and a heavy pipe that they were unable to safely cut while it was suspended at an angle in a pipe rack, and Newman again threatened their jobs. ECF Nos. 48-2 ¶ 26; 54-2 ¶¶ 15, 16.

On February 28, 2015, during the morning safety meeting, Newman cut off any discussions about safety concerns relating to the jobsite parking lot. ECF No. 54-1 ¶ 29. Thereafter, Newman went to Plaintiff Oppat's crew's tent, where Plaintiff Pia "called [Newman] out on his lack of attention to safety on the jobsite." Id. ; ECF No. 54-2 ¶ 14. In response, Newman threatened Pia's job and left the tent. ECF Nos. 54-1 ¶ 29, 54-2 ¶ 14. Plaintiffs then turned to Mike Mitchell, who was the safety manager for Defendant URS. ECF Nos. 48-2 ¶ 29, 54-1 ¶ 29, 54-2 ¶ 17. Newman later admitted he was upset that Plaintiffs had gone directly to jobsite safety representatives rather than going through him. ECF No. 54-1 ¶ 24. Pia told Mitchell about his various safety concerns and conveyed his heightened concern for everyone on the jobsite due to the fact that he believed Newman was generally not concerned with safety. ECF Nos. 54-1 ¶ 29, 54-2 ¶ 17. Defendant URS then held a meeting to discuss Pia's safety concerns. ECF Nos. 48-2 ¶ 29, 54-2 ¶ 17. Present at the meeting were Plaintiffs; Mitchell; Mitch Wisenor, who was Assistant Director of Labor Relations for Defendant URS; Brad Peterson, who was a project supervisor for Defendant URS; and a union representative from Local 125. ECF No. 48-2 ¶ 29. During the meeting, Pia felt Peterson was threatening his job for again bringing up safety issues. ECF No. 54-2 ¶ 17; see ECF No. 1 ¶ 33. Following the meeting, Pia was escorted off the jobsite and did not return to work because he was terminated the following Monday, March 2. Id.

On March 2, 2015, Business Agents for Local 125, Pat Ellison and Bruce Beckman; project superintendents for Defendant URS Keith Williams and Chris Laney; and Assistant Director of Labor Relations Wisenor met with other employees, including Plaintiff Oppat, Jason Gorlewski, Kasey Minton, Scott Stewart, and Mike Pulley, to discuss safety...

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