Opinion
Civil Action No. 03-1744, Section: I/1.
July 15, 2004
ORDER AND REASONS
This matter is before the Court pursuant to a motion for summary judgment filed on behalf of defendant, Local 270 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers ("Union"). Plaintiffs, Alex Hebert, Jr., Lionel A. Johnson, Sr., Clarence Dorsey, Elliot Bailey, Irell Warren, Sr., and Nathan Bradley, oppose the motion. For the following reasons, defendant's motion for summary judgment is GRANTED.
Rec. Doc. No. 40. Prior to the instant motion for summary judgment, the Union filed a motion for partial summary judgment and motion to dismiss. See Rec. Doc. No. 11. Subsequent to the filing of the instant motion, the Court dismissed defendant's motion for partial summary judgment and motion to dismiss. See Rec. Doc. No. 47. The Court stated that the memoranda filed in connection with defendant's prior motions would be treated as supplemental memoranda to the instant motion for summary judgment. Id.
FACTS AND PROCEDURAL HISTORY
This matter arises out of a dispute between plaintiffs, six Union-represented truck drivers, and the Union pertaining to the Union's method of referring truck drivers for work on movie and television productions. The Union represents men and women in a wide variety of occupations in the greater New Orleans area, including truck drivers. The Union's business agent, Ovid P. Davis, is responsible for referring truck drivers for work on television and film productions, filming within the jurisdiction of the local, that are signatories to a collective bargaining agreement ("CBA") with the Union. Davis is also responsible for handling and investigating grievances that arise from work pursuant to the CBAs.When film and television productions film in New Orleans, the producers may enter into a CBA with the Union in order to obtain qualified drivers for their productions. The productions and the Union use, subject to modifications, if any, a template referred to as the Area Standards Agreement, used nationwide for union truck driving production work. Additionally, productions filming in more than one union's jurisdiction may enter into, or agree to abide by, the Area Standards Agreement. With respect to multi-jurisdictional productions, the Union is required to adhere to the Area Standards Agreement even though a particular local may not have a written contract with the particular production.
Id. at ¶ 5.
Prior to 1996, when the Area Standards Agreement was in effect between the Union and a production, the Union referred members to the production in order of their seniority in the industry in accordance with a seniority list maintained by the Union. Pursuant to that procedure, if a production requested five drivers, the Union sent out the five most senior available drivers.
Id. at ¶ 9.
Id.
In 1996, one production company, Crescent City Pictures, Inc. ("Crescent City"), refused to hire drivers based on seniority notwithstanding the fact that they were referred to the production in seniority order. The Union, on behalf of one driver and pursuant to its agreement with Crescent City, grieved the refusal in binding arbitration In connection with the arbitration proceedings, the Union argued that Crescent City was bound to hire the most senior qualified driver on the referral list and that Crescent City could only reject drivers for "just cause." The arbitrator disagreed with the Union holding that there was no language in the CBA (which was modeled on the Area Standards Agreement) or related documents executed between Crescent City and the Union that obligated the production to hire the most senior driver. The decision rested, in part, on language in the CBA pursuant to which a producer retained the right to reject any applicant referred by the Union. Additionally, the arbitrator noted that the Union fulfilled its obligation to maintain a nondiscriminatory referral procedure by maintaining a seniority list and providing it to productions that request job applicants.
Rec. Doc. No. 40, Ex. G., Crescent City Pictures Arbitration Decision ("Crescent Arb."), at 1.
Id. at 4.
Id. at 7.
Id. at 6.
Id. at 8.
According to the Union, the Crescent City decision prompted the Union to adopt and implement a "producers preference" referral method. Pursuant to such referral method, instead of referring drivers to productions one by one in seniority order as had been done prior to 1996, the Union maintained and continues to maintain a list of its production drivers in seniority order and it provides the entire list to productions hiring Union drivers. Upon receipt of the list, the production then selects any employees it wishes to hire from the Union list (hereinafter referred to as "Producers Preference").
Decl. Davis, ¶ 12.
On June 17, 2003, plaintiffs filed the instant action claiming that the Union breached the Union's duty of fair representation by failing to refer them for production work in seniority order and failing to process their grievances pertaining to the non-seniority-based referral system, all in violation of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 401-531 ("LMRDA") and section 9(a) of the Labor Management Relations Act, 29 U.S.C. § 159(a). According to the complaint, sometime in 2002, the plaintiffs filed grievances with the Union because they were not being referred for work in seniority order and the Union refused to process their grievances. The plaintiffs alleged that when they asked the Union why they were not receiving job assignments, the Union falsely informed them that the production managers of the productions had rejected them. Plaintiffs claim that they were not referred to production work by the Union because they had picketed the Union, verbally criticized Union officials, and filed a lawsuit against the Union. They assert that the Union's alleged failure to refer them in seniority order is designed to punish plaintiffs for exercising rights pursuant to the U.S. Constitution and other federal laws. In briefs submitted to this Court, the plaintiffs have also raised the claim that the Producers Preference violates the Union Constitution, the Union by-laws, and internal Union rules.
See Rec. Doc. No. 1., Complaint ("Comp."). In the complaint, plaintiffs incorrectly cite the LMRDA as "29 U.S.C. § 3401-531."
Id. at ¶ 5.
Id. at ¶ 6.
Id. at ¶ 7.
Id. at ¶ 9.
On February 3, 2004, the Union filed this motion contending that (1) plaintiffs' LMRDA claims are not actionable because none of the Union's conduct complained of constitutes "discipline" within the meaning of the statute; (2) plaintiffs' claims based on the Union's breach of its duty of fair representation are time-barred; (3) plaintiffs cannot maintain a claim for breach of the duty of fair representation with respect to productions that are not signatories to a CBA; and (4) plaintiffs cannot show that any of the Union's actions constitute a breach of the duty of fair representation.
LAW AND ANALYSIS
I. Summary Judgment Standard
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56 (c). Once the moving party carries its burden pursuant to Rule 56(c), the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). That burden is not satisfied by creating merely some metaphysical doubt as to the material facts, by conclusory allegations, unsubstantiated assertions or by only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). The materiality of facts is determined by "the substantive law's identification of which facts are critical and which facts are irrelevant." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Therefore, a fact is material if it "might affect the outcome of the suit under the governing law." Id. A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (internal quotation omitted).
In order to demonstrate that summary judgment should not lie, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Auguster v. Vermillion Parish School Board, 249 F.3d 400, 402 (5th Cir. 2001). A court will resolve factual controversies in favor of the nonmoving party, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075. The Court will not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts. See id. (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990)).
[T]he plain language of Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Munoz v. Orr, 200 F.3d 291, 307 (5th Cir. 2000) ("A complete failure of proof as to one element requires summary judgment against the entirety of the claim") (citation omitted).
II. Plaintiffs' claims pursuant to the LMRDA
The Union moves for summary judgment dismissing plaintiffs' claims pursuant to the LMRDA on the ground that plaintiffs have failed to allege acts constituting "discipline" that are actionable pursuant to sections 101(a)(5) and 609 of the LMRDA.
The Court is cognizant that proof that a union has infringed a member's right of free speech protected by section 101 of the LMRDA, 29 U.S.C. § 411, may, under certain circumstances, be actionable pursuant to section 102, 29 U.S.C. § 412, even if no unlawful discipline is shown. See Guidry v. Int'l Union of Operating Eng'rs, Local 406 (Guidry II), 907 F.2d 1491, 1493 (5th Cir. 1990). However, in the course of at least three rounds of briefing with respect to the instant motion, plaintiffs have never disputed that, with respect to their LMRDA claims, they are proceeding solely pursuant to sections 101(a)(5) and 609 of the Act. Therefore, the only issue presented to this Court is whether plaintiffs have sustained their summary judgment burden with respect to whether the Union's conduct constitutes unlawful "discipline."
Sections 101(a)(5) and 609 of the LMRDA make it unlawful for a union to "fin[e], suspen[d], expe[l], or otherwise discipline" a union member for exercising any rights secured under the LMRDA. 29 U.S.C. § 411(1)(5) and 529 (1998 ed.). In Miller v. Holden, 535 F.2d 912 (5th Cir. 1976), the Fifth Circuit held:
Union action which adversely affects a member is "discipline" only when (1) it is undertaken under color of the union's right to control the member's conduct in order to protect the interests of the union or its membership, and (2) it directly penalizes him in a way which separates him from comparable members in good standing.Id. at 915. Subsequently, in Breininger v. Sheet Metal Workers Int'l Assn. Local No. 6, 493 U.S. 67, 90, 110 S.Ct. 424, 438, 107 L.Ed.2d 388 (1989), the United States Supreme Court addressed the issue of whether the alleged failure of union officials to refer the plaintiff for employment in retaliation for the plaintiff's opposition to their leadership constituted "discipline" within the meaning of the LMRDA. The Court found that "by using the phrase `otherwise discipline,' Congress did not intend to include all acts that deterred the exercise of rights protected under the LMRDA, but rather meant instead to denote only punishment authorized by the union as a collective entity to enforce its rules." 493 U.S. at 91, 110 S.Ct. at 492-93. The Court held that "[t]he term refers only to actions `undertaken under color of the union's right to control the member's conduct in order to protect the interests of the union or its membership.'" Id. at 91, 110 S.Ct. at 493 (quoting Miller, 535 F.2d 915 (5th Cir.). "The union need not, however, invoke formal proceedings, and discipline can entail informal or summary penalties as long as adverse action against a union member is not purely `ad hoc retaliation by individual union officers.'" Guidry v. Int'l Union of Operating Eng'rs, Local 406 (Guidry II), 907 F.2d 1491, 1493 (5th Cir. 1990) (citing Breininger, 493 U.S. at 91-92, 110 S.Ct. at 439).
In a footnote, the Breininger Court clarified its holding:
We do not imply that "discipline" may be defined solely by the type of punishment involved, or that a union might be able to circumvent §§ 101(a)(5) and 609 by developing novel forms of penalties different from fines, suspensions, or expulsions. Even respondent acknowledges that a suspension of job referrals through the hiring hall could qualify as "discipline" if it were imposed as a sentence on an individual by a union in order to punish a violation of union rules. . . . We note only that Congress' reference to punishments typically imposed by the union as an entity through established procedures[, i.e. fine, suspension, and expulsion,] indicates that Congress meant "discipline" to signify penalties applied by the union in its official capacity rather than ad hoc retaliation by individual union officers.Breininger, 493 U.S. at 92 n. 15, 110 S.Ct. at 493 n. 15. (alteration supplied). The petitioner in Breininger "alleged only that [certain union officials] failed to refer him for employment" due to his opposition to the union leadership. Id. at 94, 110 S.Ct. at 440. Therefore, the petitioner failed to allege acts constituting discipline within the meaning of the Act. Id. In light of Miller and Breininger, the Court's task is to determine whether plaintiffs have carried their summary judgment burden by designating specific facts that demonstrate that the Union, as a collective entity and in its official capacity, penalized plaintiffs by failing to refer them for work in a way that other members in good standing were not penalized.
It is undisputed that the alleged "punishment" in this case, i.e., the Union's failure to refer the plaintiffs for work in seniority order, did not result from an established union disciplinary process. Plaintiffs have failed to point to any specific facts in the record that demonstrate that the Union has taken any official action as a collective entity with respect to referring plaintiffs for production jobs which has directly penalized them in a way that separates them from other members. Similarly, plaintiffs have not presented any evidence that the Union's failure to refer them in seniority order pursuant to the Producers Preference was undertaken for the purpose of controlling plaintiffs' conduct or that it was adopted by the Union to address any violation of the union rules by plaintiffs. To the contrary, the summary judgment evidence demonstrates that the Producers Preference was adopted by the Union prior to plaintiffs' criticism and picketing and it was, in fact, the catalyst for their picketing and the subject of their grievances.
See Rec. Doc. No. 40, Ex. H, deposition of Alex Hebert, Jr. ("Dep. Hebert'), pp. 199-200; Ex. I, deposition of Lionel A. Johnson, Sr. ("Dep. Johnson"), pp. 13-15, 23; Ex. J., deposition of Clarence Dorsey ("Dep. Dorsey"), pp. 14-16; Ex. K, depostition of Elliot Bailey ("Dep. Bailey"), p. 12; Ex. L., deposition of Irell Warren, Sr. ("Dep. Warren"), pp. 17-18, 28; Ex. M. deposition of Nathan Bradley ("Dep. Bradley"), pp. 13-16.
Plaintiffs' sole argument in support of their LMRDA claim is that Breininger does not apply to this case because, unlike the petitioner in that case, plaintiffs have also alleged that the Union punished them by its failure to process their grievances pertaining to the referral system. The plaintiffs argument is unavailing. A local union's action or inaction in the processing of a grievance is not "discipline" or punishment within the meaning of the LMRDA. Camporeale v. Airborne Freight Corp., 732 F. Supp. 358 (E.D.N.Y. 1990) (concluding that "[a]s a matter of law, Local 295's processing of the grievance and its determination not to pursue formal arbitration on behalf of [plaintiff] is not `discipline' or punishment within the meaning of section 101(a)(5)). Accordingly, the Union is entitled to a judgment as a matter of law dismissing plaintiff's LMRDA claims.
III. Timeliness of Plaintiff's Duty of Fair Representation Claims
The Fifth Circuit applies a six-month limitations period to a plaintiff's claims against his union for breach of the duty of fair representation ("DFR" claims). Smith v. Int'l Org. of Masters, Mates and Pilots, 296 F.3d 380, 383 (5th Cir. 2002) (extending the six-month limitation period applicable to "hybrid" § 301/DFR claims to cases where a plaintiff only brings a DFR claim against his union); Landry v. Air Line Pilots Assn. Int'l AFL-CIO, 901 F.2d 404, 411 (5th Cir. 1990) ("The six month limitation period is applicable whenever there is a DFR claim."). The limitations period begins to run when the plaintiffs discovered, or in the exercise of reasonable diligence should have discovered, the acts that form the basis of their DFR claim. See Barrow v. New Orleans Steamship Assoc. (Barrow I), 10 F.3d 292, 300 (5th Cir. 1994); Wood v. Houston Belt Terminal Ry., 958 F.2d 95, 97 (5th Cir. 1992); Landry, 901 F.2d at 413; Barett v. Ebasco Constructors, Inc., 868 F.2d 170, 171 (5th Cir. 1989).
The instant action was filed on June 17, 2003. Therefore, although there is a dispute about when plaintiffs' claims accrued, it is undisputed that claims which accrued subsequent to December 17, 2002, are timely. As discussed below, plaintiffs have argued that the Union has breached its duty of fair representation in two distinct ways, each requiring a separate timeliness analysis. First, plaintiffs claim that the Union's adoption of the Producers Preference violated the Union's duty of fair representation because it was adopted in contravention of the Union Constitution, the Union by-laws, and the Union's local rules governing referrals, Second, plaintiffs claim that, even assuming that the Producers Preference is valid, the referral system is being arbitrarily and discriminatorily applied to them in retaliation for their criticism of the Union.
A. Plaintiffs' Claims Challenging the Producers Preference
With respect to productions dating back to 1997 and continuing until Spring, 2003, plaintiffs seek to recover damages for the Union's alleged failure to refer them in seniority order. Additionally, although plaintiffs have never amended their complaint, plaintiffs' submissions to this Court suggest that they also seek to recover damages pertaining to non-seniority based referrals occurring during the pendency of this litigation. Plaintiffs argue that since the Crescent City arbitration decision in 1996, the Union has been engaging in a continuing violation and, therefore, because some of plaintiffs' claims pertain to referrals that occurred within the limitations period, all of their claims are timely. Defendants argue that all of plaintiffs' claims are time-barred because, to the extent that plaintiffs' claims are challenging the adoption of the Producers Preference and are premised on repeated applications of that referral system, plaintiffs' claims accrued when the Union adopted that referral system in 1996.
"The continuing violation theory provides that where the last act alleged is part of an ongoing pattern of discrimination and occurs within the filing period, allegations concerning earlier acts are not time-barred." McGregor v. Louisiana State Univ. Bd. of Supervisors, 3 F.3d 850, 866 (5th Cir. 1993). However, the Fifth Circuit has noted that "courts, including this one, are wary to use the continuing violation doctrine to save claims outside the area of Title VII discrimination cases." Id. at n. 27. Assuming, arguendo, that the continuing violations could ever apply in the context of a DFR claim, the Court agrees with the Union that plaintiffs' claims premised on the alleged illegality of the adoption of the Producers Preference and subsequent applications of that non-seniority based referral system are untimely.
In the context of discrimination claims, the Fifth Circuit has explained the continuing violations doctrine as follows:
[T]he continuing violation doctrine embraces two types of cases. The first includes cases in which the original violation occurred outside the statute of limitations, but is closely related to other violations that are not time-barred. In such cases, recovery may be had for all violations, on the theory that they are part of one, continuing violation.
The second type of continuing violation is one in which an initial violation, outside the statute of limitations, is repeated later; in this case, each violation begins the limitations period anew, and recovery may be had for at least those violations that occurred within the period of limitations.
. . .
In contrast . . . if the discrimination alleged is solely the result of a single violation that occurred outside the statute of limitations, the later effect of this act does not constitute a continuing violation of the statute.Hendrix v. City of Yazoo City, Miss., 911 F.2d 1102, 1103-04 (5th Cir. 1990) (footnotes and citations omitted). The question of whether a particular course of conduct constitutes a continuing violation turns on "whether the practice at issue is part of, or a repetition of, a past discriminatory act, in which case there is a continuing violation, or whether it is facially neutral, simply giving effect to prior discrimination, in which case there is no continuing violation." Id. at 1104. The Hendrix Court concluded that when there is a dispute about when the actual violation occurred, the key to that inquiry is "whether the original discriminatory act had `the degree of permanence that should trigger an employee's awareness of and duty to assert his or her rights.'" Id. (quoting Berry v. Bd. of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983)); Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1561 n. 5 (5th Cir. 1985) (noting that whether particular conduct had the degree of permanence sufficient to alert a plaintiff to assert his rights embodies the "core idea" of the continuing violations doctrine).
In Barrow v. New Orleans Steamship Assoc., 932 F.2d 473 (5th Cir. 1991), the plaintiff brought an age discrimination claim and a DFR claim against his union based upon an allegedly discriminatory seniority system adopted in violation of a collective bargaining agreement that altered his seniority rights and affected his ability to secure work. Id. at 475. In the context of his discrimination claim, the Union argued that any claims based upon the allegedly unlawful adoption and subsequent applications of a seniority system accrued when the system was adopted. Id. at 477. The Fifth Circuit agreed with the defendants holding that the adoption of a new seniority system triggers the limitations period "regardless of when the effects of such a system are actually felt." Id. at 477-78; see also Lorance v. ATT Tech., Inc., 490 U.S. 900, 909, 109 S.Ct. 2261, 2267, 104 L.Ed.2d 961 (1989) (holding that the limitations period for a Title VII claim challenging a discriminatory seniority system "will run from the date the system was adopted"); Hendrix v. City of Yazoo City, Miss., 911 F.2d 1102, 1104 (5th Cir. 1990) ("[T]he discriminatory adoption of a facially neutral seniority system [is] a single violation triggering the statute of limitations, rather than a continuing violation renewed with each [application]") (citing Lorance, 490 U.S. at 909, 109 S.Ct. at 2266-67). The Barrow court then held that plaintiffs' DFR claim based upon the seniority system was also untimely because plaintiff's own testimony demonstrated that the plaintiff knew two years prior to filing the lawsuit that the seniority system would have an adverse effect on him. See id. at 480.
Applying these cases, the Court concludes that plaintiffs' claims challenging the validity of the adoption of the Producers Preference and all claims based upon subsequent applications of that referral procedure do not constitute a continuing violation. The original unlawful action, even according to plaintiffs' theory, is the Union's allegedly illegal adoption of the Producers Preference. Plaintiffs claims rests on the argument that, although the Producers Preference was arguably valid in the context of the Crescent City dispute, the Union was bound to put any change of referral procedure before the membership and allow the membership to vote on whether to adopt that system prior to applying the system to referrals for other productions.
Plaintiffs do not argue that the Producers Preference is independently arbitrary or discriminatory. Instead, the plaintiffs' theory rests on the illegality of the method by which the Producers Preference was initially adopted. Once the Union made its decision to implement the Crescent City decision without putting such a decision to a vote, the claimed breach of the duty of fair representation was complete. As such, subsequent applications of the Producers Preference merely gave effect to the original violation.
Furthermore, the undisputed summary judgment evidence demonstrates that the adoption of the Producers Preference had the "degree of permanence" that not only should have, but did in fact, trigger plaintiffs' awareness of and duty to assert their rights. Two of the plaintiffs, Hebert and Johnson, admitted explicitly that they knew of the Crescent City decision and that subsequent to that decision they were not being referred for work in seniority order. Moreover, all the plaintiffs first picketed the Union over the referral issue in 1997 and, since 2000, have filed numerous grievances over the Union's failure to refer them in seniority order. Furthermore, plaintiffs began consulting attorneys with respect to filing a lawsuit pertaining to the seniority referral issue in 2000. In December, 2001, Hebert filed, on behalf of himself and the other named plaintiffs in this lawsuit, an unfair labor practice charge with the National Labor Relations Board raising precisely the same issues raised here with respect to how the Producers Preference allegedly violated various Union rules. Accordingly, viewing the facts in the light most favorable to the plaintiffs, the Court concludes that even if plaintiffs were not aware of the facts necessary to support their claims when the Producers Preference was adopted, the very latest that plaintiffs' claims accrued was December, 2001, approximately a year and one-half prior to the filing of the instant lawsuit. Therefore to the extent that plaintiffs claim that the Producers Preference violates the Union Constitution, by-laws, and internal Union rules, those claims, as well as claims predicated upon subsequent applications of the Producers Preference, are untimely.
Dep. Hebert, pp. 91-92; Rec. Doc. No. 52, Ex. E., Aff. Hebert, ¶¶ 3-7; Ex. F., Aff. Johnson, ¶¶ 3-7.
See id. at pp. 9-11, 200; Dep. Johnson, pp. 28, 50, 54-56; Dep. Warren, pp. 17, 20-24, 28-33; Dep. Bailey, pp. 5-10; Dep. Dorsey, pp. 24-27; Dep. Bradley, pp. 23-28. S Rec. Doc. No. 44, Ex. D, plaintiffs' group affidavit, p. 2.
Dep. Hebert, pp. 185-193.
Rec. Doc. No. 40, Ex. Q., NLRB charge and amendments.
B. Plaintiffs' Claims of Arbitrary and Discriminatory Referrals
In their submissions to this Court, plaintiffs have also claimed that since 1997, the Union has not been including their names at all on the seniority list sent to producers and/or manipulating the referral procedure to their detriment. As alleged in the complaint, plaintiffs claim that the hiring hall procedures are being discriminatorily and arbitrarily applied to them due to their repeated criticism of Union leadership and the referral procedures employed by the Union. This category of claims is distinct from a direct challenge to the alleged illegal adoption of the Producers Preference and its subsequent "neutral" applications. See Barrow, 932 F.2d at 479, 480 (distinguishing between claims directly challenging the discriminatory adoption of a seniority system and its subsequent facially neutral applications from claims alleging discriminatory application of that seniority system). Because such claims are not tied to a direct challenge to the validity of the Producers Preference, claims that the Producers Preference has been discriminatorily and arbitrarily applied to plaintiffs are not time-barred for those referrals occurring subsequent to December 17, 2002.
Comp. ¶¶ 7-9.
With respect to this category of claims, plaintiffs argue that their claims pertaining to referrals occurring prior to December 17, 2002, are timely pursuant to equitable tolling, equitable estoppel, and the doctrine of fraudulent concealment. They maintain that the statute of limitations should be tolled because the Union actively misled them about why they were not being hired for work. According to the plaintiffs' affidavit, the Union falsely told them that their names had been submitted to the producers, ostensibly pursuant to the Producers Preference, and that the producers had "rejected" them and selected other drivers on the list, many of whom had less seniority than plaintiffs. Plaintiffs reason that all of their claims are timely because they relied on the Union's false statements that they were being referred pursuant to the Producers Preference and, therefore, all of their claims dating back to 1996 are timely.
Rec. Doc. No. 44, Ex. D., Plaintiffs' collective affidavit, at p. 2.
Fraudulent concealment tolls the statute of limitations when a defendant knowingly conceals facts from a plaintiff that are necessary to support his claim. See L.C.L. Theatres, Inc. v. Columbia Pictures Indus., 566 F.2d 494, 496 (5th Cir. 1978) (applying Texas law); Berry v. Allstate Ins. Co., 252 F. Supp.2d 336, 343 (E.D.Tex. 2003) (citing L.C.L Theatres in the context of an ERISA claim). The focus of the inquiry is on whether the plaintiff has exercised due diligence in seeking to learn the facts which would disclose the fraud. See L.C.L. Theatres, 566 F.2d at 496 ("As a matter of law, knowledge of facts which would have ignited an inquiry by a reasonably prudent person and if pursued with reasonable diligence would have resulted in the discovery of fraud, is equivalent to knowledge of the fraud."). That inquiry parallels the "inquiry notice" requirement applied by the Fifth Circuit in the context of DFR claims. As stated by the Fifth Circuit, "[a]llegations of fraudulent concealment do not free plaintiffs of their obligation to exercise reasonable diligence to discover frauds perpetrated against them once they are on notice that such acts might have occurred." Landry, 901 F.2d at 412-413. The requirement of a diligent inquiry imposes an affirmative duty on a plaintiff. Id. at 413 n. 16 (quoting Jensen v. Snellings, 841 F.2d 600, 607 (5th Cir. 1988)). Although a plaintiff will not be charged with knowledge of facts fraudulently concealed simply because he has had the opportunity or power to investigate, L.C.L. Theatres, 566 F.2d at 497, "[a] plaintiff who has learned of facts which would cause a reasonable person to inquire further must proceed with a reasonable and diligent investigation, and is charged with the knowledge of all facts such an investigation would have disclosed." Landry, 901 F.2d at 413 n. 16 (citation omitted). Therefore, to defeat summary judgment, plaintiffs must come forward with specific facts demonstrating not only that the Union concealed that their names had not been submitted to the producers, but additionally, they must show that the Union's concealment was successful, i.e., that the Union's concealment prevented plaintiffs from ascertaining facts which would put a reasonably prudent person on notice to investigate further.
The doctrines of equitable tolling and equitable estoppel embody similar principles. The party invoking the Courts equitable power to toll a statute of limitation bears the burden of "presenting facts `which, if true, would require a court as a matter of law to estop the defendant from asserting the statute of limitations.'" McGregor, 3 F.3d at 865 (quoting Begay v. Hodel, 730 F. Supp. 1001, 1011 (D.Ariz. 1990); see Teemac v. Henderson, 298 F.3d 452, 457 (5th Cir. 2002); Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876, 879 (5th Cir. 1991). Explaining the difference between equitable tolling and equitable estoppel, the Fifth Circuit has stated that "`Equitable tolling focuses on the plaintiff's excusable ignorance of the employer's discriminatory act. Equitable estoppel, in contrast, examines the defendant's conduct and the extent to which the plaintiff has been induced to refrain from exercising his rights." Rhodes, 927 F.2d at 878. Because plaintiffs' claims focus on the Union's alleged concealment of the reason that plaintiffs were not being hired, the Court will analyze plaintiffs' claim pursuant to equitable estoppel principles. See id. at 879 (applying the doctrine of equitable estoppel instead of equitable tolling where plaintiff claimed that his lawsuit was untimely because defendant misled his about the reasons for discharge). To avoid summary judgment on claims pertaining to referrals occurring prior to December 17, 2002, plaintiffs must come forward with facts demonstrating that the Union misled them about the true reason they were not being hired. The statute of limitations is then tolled until the plaintiffs either knew or should have discovered the misrepresentation or concealment that caused the delay. See id.
As noted above, the plaintiffs attested that Davis, the Union business agent, affirmatively represented to them that they were being referred to the production companies and "rejected" by the producers. Assuming, arguendo, that plaintiffs can establish that the Union's representations were, in fact, untrue, and viewing the summary judgment evidence in the light most favorable to the plaintiff, the Court concludes that the plaintiffs were put on inquiry notice, if not actual notice, of their claims no later than sometime in the latter half of 2001. As noted above, plaintiffs filed a grievance with the National Labor Relations Board on July 30, 2001. In that complaint, plaintiffs not only challenged the seniority referral system. They also alleged that the Union had applied the hiring hall system in a discriminatory manner by failing and/or refusing to refer plaintiffs for work. Notwithstanding the NLRB's determination that plaintiffs had, in fact, been referred (and simply not selected), plaintiffs pursued their action by consulting at least two attorneys with respect to the claims presented here. Given this undisputed evidence, even assuming that the Union's business agent had falsely represented to plaintiffs that they were being referred and "rejected", plaintiffs have failed to point to any evidence that even suggests that they were not aware of their legal rights or their ability to institute a legal action. The unrebutted summary judgment evidence clearly demonstrates that plaintiffs were aware that they were not being hired for jobs and that notwithstanding any representations the Union may have made regarding the reasons for their inability to secure employment, plaintiffs actively filed and pursued grievances with respect to referrals and took steps to pursue a legal action (short of timely filing a lawsuit) with respect to their claims.
Rec. Doc. No. 40, Ex. Q., NLRB charge and amendments.
Id.
Id., Dep. Hebert, at pp. 185-93.
Because plaintiffs' own actions are fatal to their claim that they were induced to forego their legal rights by relying on the Union's alleged misrepresentation, there is no basis on which to estop the Union from asserting the statute of limitations. Accordingly, plaintiffs' claims that the Union failed or refused to refer them for employment and/or influenced producers to hire other drivers are time-barred to the extent that they implicate referrals made prior to December 17, 2002.
IV. Duty of Fair Representation
The duty of fair representation arises from "the grant under § 9(a) of the [National Labor Relations Act ("NLRA")] of the union's exclusive power to represent all employees in a particular bargaining unit." Breininger, 493 U.S. at 87; 110 S.Ct. at 436; Bache v. Am. Tel. Tel., 840 F.2d 283, 287 (5th Cir. 1988) (noting that an employee's cause of action is implied from the statutory scheme of federal labor law). The duty serves "as a `bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.'" Breininger, 493 U.S. at 87, 110 S.Ct. at 436 (quoting Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 912, 17 L.Ed.2d 842 (1966). Although a breach of the duty of fair representation is an unfair labor practice, id.; Reed v. United Transp. Union, 488 U.S. 319, 328, 109 S.Ct. 621, 627, 102 L.Ed.2d 665 (1989); Hammons v. Adams, 783 F.2d 597, 601 (5th Cir. 1986), the scope of protection afforded an employee by the duty encompasses a broader category of conduct than conduct that the NLRA explicitly defines as unfair labor practices. Breininger, 493 U.S. at 87, 110 S.Ct. at 436.
Pursuant to this doctrine, "the exclusive agent's statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Vaca, 386 U.S. at 177, 87 S.Ct. at 910; see also Hammons, 783 F.2d at 601. Additionally, analogizing the duty of fair representation to the duty owed by other fiduciaries to their beneficiaries, the Supreme Court has held that "a union owes employees a duty to represent them adequately as well as honestly and in good faith." Air Line Pilots Assoc., Int'l v. O'Neill, 499 U.S. 65, 75, 111 S.Ct. 1127, 1134, 113 L.Ed.2d 51 (1991). Accordingly, to sustain a claim for breach of the duty of fair representation, an employee "must demonstrate that the union's conduct is `arbitrary, discriminatory, or in bad faith,' or that the union discharged its duties in a perfunctory manner." Grovner v. Georgia-Pacific Corp., 625 F.2d 1289, 1290 (5th Cir. 1980) (internal and final citation omitted). When acting in its representative capacity, "a union's actions are arbitrary only if, in light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outside a `wide range of reasonableness', as to be irrational." O'Neill, 499 U.S. at 67, 111 S.Ct. at 1130 (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed. 1048 (1953)). In assessing the reasonableness of a union's representation of a bargaining unit, the Supreme Court has instructed:
Congress did not intend judicial review of a union's performance to permit the court to substitute its own view of the proper bargain for that reached by the union. Rather, Congress envisioned the relationship between the courts and labor unions as similar to that between the courts and the legislature. Any substantive examination of a union's performance, therefore, must be highly deferential, recognizing the wide latitude that negotiators need for the effective performance of their bargaining responsibilities.O'Neill, 499 U.S. at 87, 111 S.Ct. at 1135.
A. Failure to process grievances
Plaintiffs claim that the Union breached its duty of fair representation by failing to process their grievances with respect to the seniority referral issue. Defendant argues that its decision to implement the Crescent City decision by referring members en masse, instead of one by one in seniority order, was reasonable and any attempt to re-arbitrate the decision would have been, in its estimation, fruitless.
The Union did not move for summary judgment on the ground that plaintiffs' DFR claims with respect to processing of grievances were untimely. Accordingly, the Court addresses those claims on the merits.
A union retains substantial discretion to decide whether and how far a grievance should be pursued. See Vaca, 386 U.S. at 191, 87 S.Ct. at 917; Landry v. Cooper/T. Smith Stevedoring Co., Inc., 880 F.2d 846, 852 (5th Cir. 1989); Bache, 840 F.2d at 289-90; Hammons, 783 F.2d at 601. Although a union may not ignore a meritorious grievance or process it in perfunctory fashion, Vaca, 386 U.S. at 191, 87 S.Ct. at 917; Hammons, 783 F.2d at 601, an individual employee does not have an absolute right to have a grievance taken to arbitration, Vaca, 386 U.S. at 191, 87 S.Ct. at 917, or to any other level of the grievance process. Cooper/T. Smith Stevedoring, 880 F.2d at 852 (citation omitted); Turner v. Air Transport Dispatchers Assoc., 468 F.2d 297, 299 (5th Cir. 1972) ("A union's broad discretion in prosecuting grievance complaints includes not only the right to settle the dispute short of arbitration but also to refuse to initiate the first steps in the appeal procedure when it believes the grievance to be without merit."). The duty of fair representation imposes an obligation on a union to investigate a grievance in good faith. Cooper/T. Smith Stevedoring, 880 F.2d at 852 (citing Abilene Sheet Metal, Inc. v. N.L.R.B., 619 F.2d 332, 347 (5th Cir. 1980)). Additionally, a union has "an obligation to prosecute a grievance `with reasonable diligence unless it decide[s] in good faith that the grievance lack[s] merit or for some other reason should not be pursued.'" Id. (quoting Hammons, 783 F.2d at 602) (alteration supplied). "The critical question is whether a union's conduct was arbitrary, discriminatory, or in bad faith, so that it undermined the fairness or integrity of the grievance process." Id. (citation omitted).
The Union contends that its decision not to pursue plaintiffs' grievances and rearbitrate the seniority referral issue was based on its determination, in light of the Crescent City decision, that it would not prevail on the matter a second time. The union business agent attested that the Union determined that contesting the issue again would have wasted resources and may have resulted in the loss of future productions coming to New Orleans by making the Union appear unduly contentious.
Decl. Davis, ¶ 16-18.
In Stanley v. Gen. Foods Corp., Maxwell House Div., 508 F.2d 274 (5th Cir. 1975) (per curiam), the Fifth Circuit held that a union met their obligation of fair representation by pursuing a grievance pertaining to an employer's absentee procedure until the employer's procedure was upheld in a separate arbitration. Id. at 275. The Fifth Circuit concluded that because the union had pursued the grievance to a point that it determined further action would have been fruitless, the court could not say that the union's conduct was discriminatory or unfair. Id.
In the Crescent City arbitration, the Union pressed the arguments that plaintiffs raise in this case. Specifically, the Union argued that the producer had to accept potential employees for productions as referred by the Union in the order of their seniority and that any rejection of the employees referred must be for "just cause." The arbitrator clearly rejected those arguments. Plaintiffs imply that the Crescent City decision was not a reasonable basis for the Union's decision not to pursue their grievances because that decision only decided that the productions did not have to hire in seniority order. Although plaintiffs do not dispute that the producers are not obligated to hire in seniority order, they maintain that according to local union rules, the Union was always bound to refer them in seniority order and to require that the producers to reject them for "just cause." Notwithstanding the arbitrator's decision that a producer did not need to have "just cause" in order to decline to hire a union worker, plaintiffs' argument simply misses the point. This Court's analysis of the Union's decision to change its referral system does not turn on whether the Union was correct in its assessment of the impact of the Crescent City decision, but only whether the Union's action in response to that decision was arbitrary, discriminatory, or in bad faith. Cf. Bache, 840 F.2d at 291 (holding that a union does not breach its duty of fair representation by rejecting an employee's interpretation of a collective bargaining agreement and failing to pursue an employee's grievance based on that interpretation unless the union's interpretation is itself arbitrary); Tedford v. Peabody Coal Co., 533 F.2d 952, 957 (5th Cir. 1976) (stating that the issue in a case alleging a breach of the duty of fair representation based on the union's failure to process a grievance challenging the union's construction of a contract is not whether the union's interpretation of the contract was correct, but whether it was nonarbitrary). Moreover, it is well settled law that a "breach of the duty of fair representation is not established merely by proof that the underlying grievance was meritorious." Vaca, 386 U.S. at 195, 87 S.Ct. at 919; Freeman v. O'Neal Steel, Inc., 609 F.2d 1123, 1126 (5th Cir. 1980) ("It is settled law that a breach of the fair representation duty cannot be based on the trial court's view regarding the probability of success on the merits of the grievance."); Turner, 486 F.2d at 299.
Crescent Arb., at pp. 3-5.
Id. at 9.
Other than the fact that the Union failed to process their grievances, the plaintiffs' have submitted no summary judgment evidence demonstrating that the Union's decision to forego pursuing their grievances in light of the Crescent City decision constituted bad faith, arbitrary, discriminatory, or unreasonable action. Moreover, this Court cannot conclude that the Union's decision to apply the Crescent City decision as it did was unreasonable or arbitrary. To the extent that plaintiffs' claim that the Union failed to investigate their claims that the Union was refusing to refer them at all, those claims also fail for lack of proof. There is no summary judgment evidence before the Court demonstrating what decision the Union made with respect to those grievances or what, if any, investigation of those claims was undertaken by the Union. Absent such evidence, there is no factual basis on which this Court can analyze the Union's conduct. The sum total of plaintiffs' evidence is that the grievances were lodged and were not taken to arbitration or did not result in the plaintiffs being employed. Such evidence is insufficient to raise a genuine issue of material fact with respect to whether the Union's handling of their grievances was arbitrary, discriminatory, or in bad faith. See Bache, 840 F.2d at 292 (holding that plaintiffs' conclusory statements that grievances have been presented to a union and that the union has failed to proceed with the grievance process are insufficient to create a genuine issue of material fact on summary judgment). Because plaintiffs have failed to meet their summary judgment burden with respect to their grievance-processing claims, the Union is entitled to a judgment as a matter of law with respect to those claims.
B. Plaintiffs' claims pertaining to Spirit, Scoundrel's Wife, Behind the Sun, and Monster's Ball.
The Fifth Circuit has recognized that "[t]he scope of the duty of fair representation is coextensive only with the union's statutory authority to act as the exclusive representative of all employees within the bargaining unit. If a union does not serve as the exclusive agent for the members of the bargaining unity with respect to a particular matter, there is no corresponding duty of fair representation." Barrett, 868 F.2d at 171.
The Union's business agent attested that the Union did not refer anyone to the productions Spirit, Scoundrel's Wife, Behind the Sun, or Monster's Ball because those productions were not parties to a CBA with the Union or any other Teamster local. Plaintiffs have offered no evidence that these productions were signatory to a CBA such that the Union owed them a duty of fair representation with respect to those productions. Accordingly, there is no genuine issue for trial with respect to plaintiffs' claims based upon referrals for those productions.
C. Plaintiffs' Referral Claims
In Breininger, the Supreme Court held that the duty of fair representation extends to union conduct in the context of operating a hiring hall. 493 U.S. at 87-89, 110 S.Ct. at 436-38. The union has a responsibility to exercise the authority it has to refer workers for employment "in a nonarbitrary and nondiscriminatory fashion, because the members of the bargaining unity have entrusted the union with the task of representing them." Id. at 88, 110 S.Ct. at 437. "An improperly functioning hiring hall resembles a closed shop, `with all of the abuses possible under such an arrangement, including discrimination against employees, prospective employees, member of union minority groups, and operation of a closed union.'" Id. at 89, 110 S.Ct. at 437. Therefore, when a union wields the power of an employer in its operation of a hiring hall, the union has an increased responsibility to exercise its power fairly. Id. ("[I]f a union does wield additional power in a hiring hall by assuming the employer's role, its responsibility to exercise that power fairly increases rather than decreases.") (italics in original).
The Fifth Circuit has held that it is unlawful for a union to discriminate among employees for arbitrary and capricious reasons in its operation of an exclusive hiring hall. N.L.R.B. v. Gen. Truckdrivers, Warehousemen and Housemen and Helpers, 778 F.2d 207, 213 (5th Cir. 1985). Referrals for employment made "without reference to objective criteria or standards are invalid." Id. (citing Local Union No. 174, Int'l Brotherhood of Teamsters (Totem Beverages, Inc.), 226 N.L.R.B. 690 (1976). Accordingly, "a union has the duty to refrain from classifying applicants on an arbitrary basis where such arbitrary conduct affects the employment status of applicants whom the union is expected fairly to represent." Id. Even absent an open manifestation of specific discriminatory intent, a union's departure from an established hiring hall practice may constitute a breach of the duty of fair representation if the union's conduct denied or interfered with an applicant's employment opportunities. See Int'l Union of Operating Eng'rs Local 406, AFL-CIO v. N.L.R.B., 701 F.2d 504, 510 (5th Cir. 1983).
As noted above, apart from their claims that they were not referred in seniority order pursuant to the Producers Preference, plaintiffs' claims that the Union manipulated the Producers Preference to deny plaintiffs' the opportunity to be fairly considered by prospective employers are timely to the extent that such claims accrued subsequent to December 17, 2002. In their briefs submitted to this Court, the plaintiffs have identified Playmaker, Unchain My Heart, and A Love Song for Bobby Long as the productions upon which their timely claims are based. The Union admits that referrals were made for these productions. Additionally, as explained above, the Union maintains that pursuant to the Producers Preference, the Union submitted a referral list, containing 72 names, to the productions and that the production companies selected the employees they wished to hire from that list. Further, the Union asserts that it did not recommend specific workers beyond supplying the referral list to the producers.
See Rec. Doc. No. 44, Ex. E, deposition of William Pitts ("Dep. Pitts"), defendant's supplemental response to plaintiffs interrogatories ("Def. Ans. Interrog.") attached as Ex. 2.
Decl. Davis, ¶¶ 12-13.
Plaintiffs argue that a genuine issue of material fact exists with respect to whether the Union is, in fact, following the procedure the Union describes. William Pitts, the transportation coordinator for the production of Playmaker, testified that prior to going to a new location for a production, he routinely consults with other transportation coordinators to obtain recommendations for drivers in the area. Pitts stated that he received a referral list from the Union's business agent, O.P. Davis, and selected three employees from that list for employment. However, the summary judgment evidence demonstrates that the names of two of the employees that Pitts testified he hired do not appear on the official list that the Union contends it submitted. Pitts further testified that he no longer has the list provided to him for the production of Playmakers. Plaintiffs argue that the "obvious" conclusion to be drawn from Pitts' testimony is that the Union submitted a list that did not contain the plaintiffs' names and, therefore, the Union has manipulated the hiring hall process and interfered with their employment opportunities.
Dep. Pitts, pp. 58-60. A transportation coordinator is an individual who is hired by the producer or production company to oversee the transportation department of a particular production. The duties of the position include hiring union truck drivers. Although a transportation coordinator may be a member of a union, the transportation coordinator is not operating pursuant to a union contract. See Dep. Pitts, pp. 5, 56; Rec. Doc. No. 55, Ex. 5, deposition of Poland Perkins, pp. 29-30.
Dep. Pitts, at pp. 24-29.
The Union's answers to plaintiffs' interrogatories state that four individuals, Jack Daniels, Dan Sumner, Calvin Wetherspoon, and Kenneth Baraby, were selected by the producers of Playmaker for employment. Def. Ans. Interrog., at p. 3. Pitts testified that he did not know or hire Baraby as a driver on that production. Dep. Pitts., pp. 24-25. The Union movie referral list does not contain the names of Dan Sumner or Calvin Wetherspoon. Rec. Doc. No. 44, Ex. C., movie referral list dated December 30, 1996. It is uncontested that the December 30, 1996, list is the most current seniority list the Union uses.
Dep. Pitts, p. 30.
The plaintiffs' argument is unpersuasive because it rests on false logic. Although Pitts' testimony would permit a rational trier of fact to conclude that the Union improperly included some names, Pitts' testimony does not support an inference that plaintiffs' were excluded from the list. Absent such evidence, even if plaintiffs' could prove that the Union derogated from the hiring hall procedure, plaintiffs cannot prove that the Union's conduct affected their employment status or denied them an employment opportunity.
Plaintiffs' claims with respect to A Love Song for Bobby Long and Unchain My Heart are also not supported by adequate summary judgment evidence. In support of these claims, plaintiffs submit the production crew rosters of eight productions dating back to 1996. The rosters for six of the productions demonstrate that plaintiffs were not selected for employment for those productions. From this bare fact, plaintiffs argue that the Union must have manipulated the hiring hall procedure because (1) persons with less seniority were hired; and (2) absent suggestion or influence from the union, a production company would not automatically choose persons with less seniority in lieu of plaintiffs. From these two suppositions, plaintiffs reason that the Union must have breached its duty to represent them fairly in making referrals.
Rec. Doc. No. 52, Exs. H-O. Although the Court has found that the plaintiffs' claims with respect to several of these productions is time-barred, plaintiffs may nevertheless introduce evidence of time-barred conduct as "background evidence in support of a timely claim." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 2072, 153 L.Ed.2d 106 (2002) (applying the principle in the context of a Title VII discrimination claim). Accordingly, for purposes of the instant motion, this Court may consider the Union's conduct with respect to those productions in assessing whether a genuine issue of material fact exists to preclude summary judgment on plaintiffs' timely claims.
In response, the Union offers the deposition testimony of Poland Perkins, the transportation coordinator for seven of the productions cited by plaintiffs in support of their claims. Perkins testified that as a transportation coordinator, he often hires drivers who he has hired in the past who have done a good job. Furthermore, the summary judgment evidence demonstrates that all of the drivers hired to work on those productions were members of the Union whose names appear on the referral list. Plaintiffs have not come forward with any evidence that would permit a reasonable trier of fact to infer that the Union did not submit the seniority referral list containing their names to any of the productions nor have plaintiffs come forward with any evidence to support their contention that the Union recommended other drivers.
See Dep. Perkins, pp. 43-45. Although plaintiffs' have made a vague allegation that Perkins is a "pawn" of the Union, they offer no serious argument that Perkins' subjective conduct in hiring drivers in his capacity as a non-union transportation coordinator is attributable to the Union.
Plaintiffs have offered no evidence that they were denied any employment opportunities. Instead, they offer an unsubstantiated assertion that because they were not ultimately hired, the Union must have breached its duty of fair representation. Such a conclusory allegation is clearly insufficient to sustain plaintiffs' burden of production on summary judgment.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of defendant, Local 270 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers, is GRANTED and plaintiff's claims are DISMISSED with prejudice.