Scherer v. LABORERS'INTERN. UNION OF N. AMERICA

• Decision Date: 19 December 1988
• Docket Number: No. 87-30267-RV.,87-30267-RV.
• Citation: 746 F. Supp. 73
• Parties: Lois SCHERER, Plaintiff, v. LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, and Laborers' International Union of North America Local 277, Defendants.
• Court: U.S. District Court — Northern District of Florida

746 F. Supp. 73

Lois SCHERER, Plaintiff, v. LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, and Laborers' International Union of North America Local 277, Defendants.

No. 87-30267-RV.

United States District Court, N.D. Florida, Pensacola Division.

December 19, 1988.

COPYRIGHT MATERIAL OMITTED

Ben R. Patterson, Patterson & Traynham, Tallahassee, Fla., for plaintiff.

Theodore T. Green, Susan M. Sacks, Laborers' Intern. Union, Washington, D.C., for defendants.

Robert R. McDaniel, Pensacola, Fla., for LIU/NA — Local 277.

ORDER

VINSON, District Judge.

Pending are cross motions for summary judgment. The plaintiff has moved for summary judgment on Counts II and III of the amended complaint. (Doc. 46) Defendant Laborers' International Union of North America has moved for summary judgment on Counts I and II. (Docs. 26, 55) For the reasons set out below, I find that the plaintiff's motion must be DENIED. The defendant's motion must be DENIED on Count I, but GRANTED on Count II.

A motion for summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. An issue of fact is "material" if it might affect the outcome of the case under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202, 212 (1986). It is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. See Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). On a summary judgment motion, the record, and all inferences that can be drawn from it, must be viewed in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Furthermore, the court must consider the entire record in the case, not just those pieces of evidence which have been singled out for attention by the parties. Clinkscales v. Chevron USA, Inc., 831 F.2d 1565, 1570 (11th Cir. 1987); Keiser v. Coliseum Properties, 614 F.2d 406, 410 (5th Cir.1980).

I. Facts

Prior to February 20, 1986, there were two local unions affiliated with Laborers' International Union of North America (LIUNA) in the Pensacola, Florida, area. Local 277 was a state-certified collective bargaining unit for private employees, with about 80 members. Local 1306 was a state-certified collective bargaining representative for public employees. The latter included units representing janitorial employees of the School Board of Escambia County, Florida, and hospital workers at Eglin Air Force Base. Its members numbered approximately 200.

Roy Scherer, the husband of the plaintiff Lois Scherer, worked as business manager of Local 1306 for many years prior to his death in December 1984. In late 1975, or early 1976, the plaintiff was hired by Local 1306 as its office secretary. On or about February 5, 1976, the plaintiff was named business manager of Local 1306, and a salary of $50 per week was set for the position, retroactive to January 1, 1976.

In May 1977, the plaintiff was elected secretary-treasurer of the union, a position formerly held by her husband. At the time of her election, a salary of $100 per week was set for the secretary-treasurer's position. The plaintiff's term of office extended for three years until May 1980. At that time, she was re-elected secretary-treasurer of Local 1306 at a salary of $150 per week for another three-year term. The plaintiff was subsequently re-elected in 1983, and held the office until the dissolution of Local 1306 on February 20, 1986.

As secretary-treasurer, the plaintiff performed all clerical duties required to maintain the union's records. The local's "office" was the home of plaintiff and her husband, who remained business manager until his death. The plaintiff also kept the financial records of the local and paid all its bills.

During this time, Local 1306 suffered a poor financial condition. The plaintiff received her salary only sporadically from 1976 through 1982. According to her own records, she was owed $32,400 in back salary for the period from April 1976 through December 1982. In addition, the local was unable to pay its per capita tax¹ to the international. By February 1986, Local 1306 was approximately $12,200 in arrears to LIUNA.

The financial condition of Local 1306 was troublesome to LIUNA. After the death of Roy Scherer, Albert Gross, a regional representative of LIUNA for Florida, and R.P. Vinall, vice president of the international in charge of the Fort Worth-New Orleans region, which included Pensacola, began to investigate what should be done about Local 1306. In early 1985, Gross met with the plaintiff and suggested that she seek the business manager position. She declined, noting the financial condition of the local, and indicated that she wished to keep her full-time position with the United Way of Escambia County.

Gross and Vinall next contacted Fred Johnson, business manager for Local 277. They first arranged for Johnson to take over as business manager of Local 1306, so that its members would have representation. They also discussed with Johnson the possibility that Local 1306 would merge into Local 277. Johnson was receptive to the merger proposal, and on April 8, 1985, the membership of Local 277 voted unanimously to merge with Local 1306.

The negotiations between LIUNA and Local 277 concerning the merger continued for several months in 1985. LIUNA arranged for a lawyer and an accountant to consult with Local 277 on the legal and financial aspects of the merger. Gross discussed with Johnson the debts of Local 1306. He informed Johnson of the amount of the per capita tax debt and the fact that the plaintiff claimed back salary. However, Johnson never learned of the amount of plaintiff's claim until after the merger. Johnson was assured by LIUNA that the debts of Local 1306 would be wiped clean so that the new union could start with a clean slate.

In the fall of 1985, Johnson conducted several meetings of the various units of Local 1306. Each unit voted unanimously to merge with Local 277. After both locals had approved the merger, the international ordered that the merger be effected by February 20, 1986. Vinall wrote to LIUNA General President Angelo Fosco on December 17, 1985, and recommended that the merger be approved by the international. In this letter, he mentioned the large per capita debt of Local 1306. Fosco wrote back on December 31, and stated that "in the event of a merger, the debit of Local Union 1306 will probably have to be wiped out as it appears there will not be funds available to pay this amount." Gross and John Tupes, a LIUNA accountant, were assigned to effectuate the merger.

Tupes was sent to Pensacola to assist Local 1306 in preparing its terminal financial reports to the Department of Labor and to the Internal Revenue Service. The plaintiff brought the records of Local 1306 from her home to Tupes' hotel room on February 20, 1986. Tupes drew up the forms with the statement of assets and liabilities prepared by plaintiff. The list included plaintiff's claim of back pay in the amount of $32,400, and this amount was recorded on the LM-3 form sent to the Department of Labor.

Local 1306's assets consisted of a check for $987.60 payable to the local from the School District of Escambia County, a check from National Maintenance, Inc. for $270, and the local's checking account balance of $3,514.29. The plaintiff endorsed the checks to Local 277, withdrew the balance from the checking account and turned it over to Local 277. Gross arranged for the change in state certification from Local 1306 to Local 277. LIUNA erased the per capita tax debt of Local 1306 in a letter to Vinall from Arthur E. Coia, General Secretary-Treasurer, dated March 4, 1986. The charter of Local 1306 was officially suspended on that same date.

The plaintiff now claims that either LIUNA or Local 277 owes her $32,400. She contends that during her discussions with Gross concerning the merger, he assured her that LIUNA would pay the debt. She also claims that Tupes agreed for LIUNA to pay her back salary during the transfer of records to Local 277. Both Tupes and Gross deny making such representations, and LIUNA itself denies that it is liable for this debt.

The plaintiff filed this suit on June 7, 1987, against LIUNA, alleging breach of contract. She claims that a representative of LIUNA entered into a contract with her in which LIUNA agreed to pay her $32,400 in exchange for her cooperation in transferring the assets of Local 1306 to Local 277. On December 31, 1987, she filed an amended complaint. In Count II, she alleges that LIUNA and Local 277 are liable to her for conversion of the assets of Local 1306 to her detriment. In Count III, she alleges that Local 277 is liable for the debt as successor to Local 1306. Local 277 has filed a cross-claim against LIUNA.

II. Discussion

A. Jurisdiction

The first issue I must address is subject matter jurisdiction. As courts of limited jurisdiction, federal courts have the duty to examine whether jurisdiction is proper in a case, even if not raised by the parties. See, e.g., Delta Coal Program v. Libman, 743 F.2d 852, 854 (11th Cir.1984); In re Carter, 618 F.2d 1093 (5th Cir.1980), cert. denied, 450 U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981). This is particularly true in cases removed from state court, such as this one. See 28 U.S.C. § 1447(c). In this case, the parties have not disputed the jurisdictional issue; however, I find that it does raise a substantial question which requires clarification.

The plaintiff filed this suit in the Circuit Court of Escambia County, Florida, against LIUNA, claiming breach...