Opinion
CIVIL ACTION NO. 01-10194-DPW.
August 23, 2007
MEMORANDUM AND ORDER
In this action, plaintiff Stephen Keefe, a member of Local 805 of the International Longshoremen's Association ("ILA"), seeks under 29 U.S.C. § 185 to recover damages for an alleged breach of the ILA Constitution and local Hiring Hall rules. Defendants Local 805, 800, and 799 of ILA moved for summary judgment, asserting that Keefe's claims are time barred or, in the alternative, have no basis in the text of the ILA Constitution. I granted the motion in part (as to the constitutional claims) and denied it in part (as to the Hiring Hall rules), and I subsequently conducted a bench trial regarding the Hiring Hall rules claim. This memorandum sets forth in detail the bases for my disposition of defendants' summary judgment motion and provides the findings of fact and conclusions of law contemplated by Fed.R.Civ.P. 52 for the bench trial.
I. GENERAL BACKGROUND
This background is taken from the undisputed facts in the summary judgment record.
A. The Parties
Plaintiff Stephen Keefe is a resident of Massachusetts and a member of ILA. Keefe has been a member of ILA local unions for over 23 years.Defendants Local 805, Local 800, and Local 799 are local unions of ILA. Each is a labor organization covered by 29 U.S.C. § 185. Defendant Local 805 is headquartered in East Boston, Massachusetts. Defendant Local 800 is headquartered in South Boston, Massachusetts. Defendant Local 799 is headquartered in Charlestown, Massachusetts.
B. Factual History
Keefe has worked as a longshoreman in ports along the Eastern Seaboard since 1969. Before moving to Boston in 1993, Keefe worked in the Port of Portsmouth, New Hampshire, as a timekeeper, crane operator, and truck driver. Keefe has been a member of ILA since approximately 1975, when he joined ILA Local 1947. Keefe was a member in good standing of Local 1947 when he moved to Boston.
When Keefe moved to Boston in 1993 he took a job as a supervisor at John T. Clark Sons ("Clark Sons"), a stevedore and terminal operating company at Conley Terminal. In 1998, Clark Sons had reduced work for Keefe, and as a consequence, he began seeking work as a "casual longshoreman" through the Boston Shipping Association/ILA Hiring Hall (the "Hiring Hall") located at 496 Summer Street starting in May 1998. The Hiring Hall is used by members of Locals 805, 800, 799, as well as by nonmembers, seeking longshore work in the Port of Boston.
1. Dispatching by the Locals
The dispatching of individuals to work sites is managed by business agents of the three locals, pursuant to Hiring Hall rules approved by the votes of the membership of the locals. The Hiring Hall is organized into 12 "gangs" of 14-15 men into which members of Locals 805, 800, and 799 are placed according to seniority. Under Hiring Hall rules, only members of Locals 805, 800, and 799 may be members of a gang. Individuals who are not members of the locals may still receive assignments; however, they do so as "casual longshoremen" only after all local members in the gangs have been given the opportunity to work.
Gangs 10-12 are only dispatched to jobs after Gangs 1-9 have been given the opportunity to accept the work. In short, under the terms of the labor agreement with the shippers, whether workers from Gangs 10-12 are assigned depends on whether there is more work than can be accommodated by Gangs 1-9.
At some point between 1996 and 1998, after consolidation of port terminals and the negotiation of a new labor agreement, the Hiring Hall reshaped the gang system with respect to Gang 12. Under the new system, Gang 12 is composed of individuals who would not, or could not, state that they were working exclusively at the longshore trade. All persons newly inducted into Local 805, 800 or 799 are automatically assigned to Gang 12.
To be placed in a gang other than Gang 12, an individual is required to sign a certification indicating an intent to be available for full-time longshore work and provide supporting documents, usually prior years' tax returns. A copy of the Hiring Hall rules is attached to the certification and additional copies of the Hiring Hall rules are made available at the Hiring Hall or from the locals' business agents.
The individual delivers the signed pledge and the supporting documents to one of the local business agents who, in turn, requests a meeting of the Hiring Hall Rules Committee (the "Rules Committee") to consider the application for transfer to a higher-ranked gang. The Rules Committee then meets to consider the transfer request on the basis of the pledge, the supporting documents, and the applicant's work background. The Rules Committee is the sole arbiter of whether an individual is able to transfer out of Gang 12.
On July 29, 1998, Keefe discussed his ILA membership with Kevin Manning, then a business agent of Local 799 and a local official engaged in Hiring Hall dispatch operations. Keefe stated that as a member of ILA Local 1947 he believed he should be given priority in dispatch over persons who were not members of ILA locals. In particular, Keefe complained that Brian Manning, a relative of Kevin Manning and not a member of any local, was being dispatched before Keefe. Manning responded that under the terms of the collective bargaining agreement between the locals and shippers, membership in another local, even another longshore local, did not entitle Keefe to priority over others with greater seniority in the Port of Boston, including non-members.
2. The Role of the International
On or around August 10, 1998, Keefe wrote a letter to ILA International Vice President William P. McNamara and ILA Atlantic Coast District Vice President Edward Connolly requesting a transfer of his ILA membership from Local 1947 to Local 805, as permitted by Article XV of the ILA Constitution. In his letter, Keefe also requested that McNamara and Connolly notify dispatchers at the Hiring Hall that, during the pendency of Keefe's transfer application, Keefe's Local 1947 membership should afford him priority over non-members of ILA unions for casual longshore work.
After receiving no response to his August 10, 1998 letter, Keefe wrote another letter to McNamara and Connolly restating his request for an official transfer card and other assistance in facilitating his switch to Local 805. Keefe repeated his request that McNamara and Connolly intercede on his behalf to prevent dispatchers from assigning work to non-ILA individuals before him. Keefe asserted that he had lost "a day's work on several occasions" due to such assignment.
On November 18, 1998, McNamara wrote to Keefe to inform him that Local 805 had rejected Keefe's application for transfer membership at a September 29, 1998 meeting. McNamara also stated that he could not intervene in the Hiring Hall dispatch system because doing so might run afoul the procedures of the National Labor Relations Board or of the Department of Labor. Specifically, McNamara wrote that the Hiring Hall was unable to prefer ILA members over non-members because "there are no provisions in the local [collective bargaining] agreement that give preference to members of ILA from another local to be dispatched before non-union members."
In a letter of November 1, 1998, Robert Flaherty, President of Local 805, and Greg Portella, Recording Secretary of Local 805, informed Keefe that his application for transfer into Local 805 had been rejected because of "the loss of men in the gang system and the upcoming lay-off of 15 men within 24 months."
McNamara, nevertheless, sent a letter to Local 805, dated December 9, 1998, recommending that it reconsider Keefe's transfer.
Keefe disputed the reasons for the denial of his transfer application and retained counsel to pursue the matter. On March 1, 1999, Keefe's attorney wrote to Local 805 requesting reconsideration of Keefe's application for transfer to Local 805. Keefe's attorney also wrote to ILA President John Bowers contending that Local 805 did not have "good and sufficient reasons" to deny the transfer under Article XV of the ILA Constitution.
Apparently in response to Keefe's attorney's letter, President Bowers wrote to Local 805's President, Robert Flaherty, and its Business Agent, Gerard H. Partee, seeking an explanation of the decision not to accept Keefe's transfer. After reviewing Local 805's stated explanation for the denial of Keefe's transfer and deeming it unsatisfactory, President Bowers directed Local 805 to accept Keefe's transfer and indicated that if it did not, ILA would institute disciplinary procedures against Local 805. Local 805 apparently offered no response to President Bower's directive, and he appointed a committee to investigate Local 805's actions.
On December 22, 1999, the committee appointed by President Bowers found that Local 805 did not have "good and sufficient reasons" for denying Keefe's transfer application. The committee recommended that Local 805 be given a deadline of January 15, 2000 to accept Keefe's transfer. The committee further recommended that if Local 805 failed to accept Keefe's application by that date, it be placed into a trusteeship under the control of ILA. The committee recommended, however, that Keefe's additional demand for "priority" or "preference" in hiring over non-members be rejected. Local 805 granted Keefe's transfer by the January 15, 2000 deadline.
3. Keefe's Gang Assignment
At the time his transfer application was accepted in January 2000, Keefe was placed in Gang 12 and began being dispatched to job sites on that basis.
On May 7, 2000, Keefe's attorney again wrote to Flaherty and Local 805 Business Agent Partee to inquire about Keefe's gang assignment. Keefe's attorney complained that Keefe had unfairly and improperly not been assigned to a gang. In fact, Keefe had been assigned to Gang 12 and had been dispatched as a gang member ahead of non-union individuals as of January 2000.
Keefe's counsel further alleged that another new member of Local 805, Thomas Trainor, initiated on the same day as Keefe in March 2000, had been moved to Gang 11 within a few days after his initiation while Keefe had not been likewise moved. Keefe's attorney demanded that 1) Keefe be immediately assigned to a gang; 2) Keefe be given seniority dating back to the date he first applied for transfer into Local 805 (August, 10, 1998); and 3) Keefe and his attorney be allowed to meet with the Rules Committee to discuss Keefe's gang assignment.
In this action, Keefe has cited Trainor's promotion from Gang 12 into Gang 11 as evidence of retaliation against him flowing from his legal action against Local 805. However, Keefe's deposition testimony reveals that Keefe had no actual knowledge of whether Trainor signed a pledge and produced evidence of "working exclusively at the craft" prior to the time he was promoted, as required by Hiring Hall Rule 36. Moreover, the record contains credible evidence that the Rules Committee followed the process established by Rule 36 by asking for and receiving Trainor's income tax forms before promoting him.
Just over a week later, in response to his attorney's letter, Keefe received a letter from James Langan, Jr., the head of the Rules Committee and President of Local 799. Langan offered to meet with Keefe to discuss the Hiring Hall rules and stated that, if this was not satisfactory to Keefe, he could attend the next regularly scheduled meeting of the Rules Committee. Langan also stated that the letter from Keefe's attorney was the first indication he had received that Keefe had a problem with his gang assignment. Apparently, Keefe did not take up Langan's offer for a meeting, nor did he meet with any other members of the Rules Committee with whom he was acquainted.
On May 25, 2000, approximately one week after receiving Langan's letter, Keefe signed the Hiring Hall pledge, certifying that he was available for work on a full-time basis and was working at the craft exclusively. The pledge also contained an acknowledgment that he had received a copy of the Hiring Hall rules. Around this date, Keefe also obtained a letter, signed by William Horohoe, the president of Clark Sons, attesting that Keefe was not a management employee of Clark Sons, but was employed by the company in casual longshore work at the Conley Container Terminal.
On or around June 20, 2000, Keefe and Local 799 President and Rules Committee Chairman Langan ran into each other on a pier. They spoke briefly about an upcoming meeting of the Rules Committee. Langan apparently told Keefe that if he wanted to be moved into Gang 11 he would have to produce documentation, such as income tax returns, in support of his pledge that he was working exclusively at the craft.
On June 22, 2000, Keefe attended a meeting of the Rules Committee and presented the letter from Horohoe and the signed pledge form. In addition to Keefe and the members of the Rules Committee, ILA Vice President McNamara was present at the meeting. During the meeting, Langan and Local 800 President Mark Conley asked Keefe if he wished to apply for transfer to Gang 11. Keefe apparently declined to ask for a promotion to Gang 11 "at this time."
On August 6, 2000, Keefe's attorney sent a letter to Flaherty and Partee, the President and Business Agent of Local 805, respectively, demanding that Keefe be placed into Gang 11 by August 16, 2000. Keefe's attorney stated that if Keefe was not promoted by this date, he would sue Local 805 in federal court for discrimination. Furthermore, he stated that he would refile charges with the international ILA requesting that Local 805 be placed into receivership.
On August 24, 2000, Keefe partially completed and signed a Social Security Administration form requesting his earnings information. At his deposition, Langan testified that the Rules Committee sometimes used this form in place of or in addition to income tax returns as documentation satisfying Rule 36. Langan testified, however, that often the Rules Committee would not send the form to the Social Security Administration but would instead rely on the individual's submitted tax returns. There is no record of whether the members of the Rules Committee received this form or what they did with it, if they received it.
The Rules Committee met again on September 28, 2000. At this meeting, Keefe asked for "Gang 11 status." According to notes of the meeting prepared by Langan, Keefe was told that he would be considered for Gang 11 status when "he presented income tax papers like other members" to show that he was not still working for his former employer. The notes also indicate that the Rules Committee scheduled a meeting to be held the following week to give Keefe the opportunity to present the required documents.
At the meeting the following week, according to notes of the meeting again prepared by Langan, Keefe again requested to be moved into Gang 11. Keefe did not, however, bring his tax returns as he had been asked to do. Nevertheless, a majority of the Rules Committee voted to give Keefe Gang 11 status at this meeting.
The record of the September 28, 2000 Rules Committee meeting shows that Joseph Swales, a member of Local 799, had also applied for Gang 11 status. Like Keefe, he had documentation of having resigned from his previous employer, and like Keefe, he was told by the Rules Committee that he needed to provide income tax records at the meeting the following week. According to the record of the October 4 meeting, however, Swales, unlike Keefe, presented his tax returns to the Rules Committee and was placed in Gang 11.
Keefe filed the complaint in the present action against Locals 805, 800, and 799 on February 1, 2001.
Late in the development of this case for trial, Keefe sought to introduce a further dispute that developed over whether he could be in a gang higher than Gang 12. Apparently, he had by that time been elevated to Gang 10 but then was demoted to Gang 12 ostensibly because he was working at another job. Keefe maintained that this action was retaliatory. I declined to permit Keefe to amend his complaint to raise that dispute belatedly in this case. That dispute is now presented in Keefe v. Local 805, 04-11340-DPW.
II. DISCUSSION REGARDING LIABILITY
A. Summary Judgment Principles
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and the 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). A material fact is one which has the "potential to affect the outcome of the suit under the applicable law." Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996). A genuine issue is "one that must be decided at trial because the evidence, viewed in the light most flattering to the nonmovant, would permit a rational factfinder to resolve the issue in favor of either party." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (citations omitted).Therefore, to succeed on a summary judgment motion, the moving party must show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see Rogers v. Fair, 902 F.2d 140, 143 (1st Cir. 1990). In order to preclude summary judgment, the nonmoving party must submit "sufficient evidence supporting the claimed factual dispute to require a choice between the parties' differing version of the truth at trial." LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993), cert. denied, 511 U.S. 1018 (1994) (internal quotations and citations omitted).
B. Keefe's Claims
Keefe's complaint alleges that Locals 805, 800, and 799 breached the ILA Constitution and the Hiring Hall rules in violation of 29 U.S.C. § 185 by failing to process his application for transfer from Local 1947 and by delaying his promotion to Gang 11.
Specifically, Keefe's complaint states two distinct grievances against the locals: First, he alleges in Count I of the complaint that Local 805's failure to accept his application for transfer membership in August 1998 breached Article XV of the ILA Constitution and thereby deprived him improperly of preferences under Hiring Hall rules and practices. Second, he alleges in Counts II, III and IV, respectively, that each of the locals breached obligations under both the ILA Constitution and Hiring Hall rules by failing to place Keefe immediately into Gang 11. I take up Counts II, III, and IV together before turning to Count I.
1. The Gang 11 Claims (Counts II, III, IV)
Keefe claims that each of the three local unions violated § 301(a) of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), by failing to place him in Gang 11 immediately upon joining Local 805. Specifically, Keefe alleges that by not putting him in Gang 11, the locals, which together run the Hiring Hall and administer its rules jointly through the Rules Committee, violated both the ILA Constitution and the local Hiring Hall rules.
a. The Constitutional Theory
Although the express terms of § 301(a) of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), concern disputes between employers and labor organizations and between labor organizations, courts analyze a suit by a union member alleging that a union has violated its constitution as a § 301(a) suit for breach of contract between labor organizations. See Wooddell v. Int'l Bhd. of Elec. Workers, Local 71, 502 U.S. 93, 103 (1991). The Supreme Court in Wooddell reasoned that the need for uniformity in enforcement of national labor laws militates in favor of analyzing union constitutions as contracts between unions and their members. Id. at 101-02; see also Shea v. McCarthy, 953 F.2d 29, 31 (2d Cir. 1992) (extending Wooddell rule to permit suits by members against union officers who commit constitutional violations); Doty v. Sewall, 908 F.2d 1053, 1060 (1st Cir. 1990) (union constitution is contract between parties). The court in Shea explained that a union constitution is at the same time a contract between the international union and its locals, between the international union and its members, and between and among the members themselves. 953 F.2d at 31-32. Furthermore, as in contract actions, the remedies for breach of a union constitution may include compensatory as well as punitive damages. See, e.g., Int'l Assoc. of Machinists v. Gonzales, 356 U.S. 617, 621 (1958) (upholding state court award of compensatory damages for breach of union constitution); Doty, 908 F.2d at 1062 (punitive damages appropriate to deter "malicious violations" of pertinent labor laws).
Section 301(a) provides:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.29 U.S.C. § 185(a).
Keefe cites Article IV of the ILA Constitution as the basis for his contention that the administration of local Hiring Halls is a constitutional matter. Article IV of the ILA Constitution is titled "Objects and Purposes," and provides, in part: "The objects and purposes of the ILA shall include the following: . . . to establish, maintain and operate clinics, hospitals, labor union halls and labor temples." Keefe argues that this phrase should be interpreted as demonstrating that the operation of Hiring Halls is within constitutional purview. The argument is without merit.
The sole phrase in Article IV upon which Keefe relies falls within an introductory statement to the ILA Constitution setting out, in the most general terms, the objects of the organization. As an introductory statement, Article IV provides that ILA may, among other things, "publish newspapers, periodicals, and other literature," "engage in educational or other activities," or "assist charitable, religious and educational bodies and institutions," in order to "promote the best interests of its members and their families." Furthermore, Article IV reserves for ILA the authority to do "all things necessary and proper, permitted by law to carry out the foregoing objects and purposes." In short, Article IV serves as a mission statement identifying certain objects as ILA's aspirations, but it does not indicate that this list is either exhaustive or exclusive. It does not specify how these goals are to be attained or whether their inclusion in the list makes them constitutionally required.
Keefe does not point to, nor can I find, any other provision in the ILA Constitution that purports to govern the operation of local Hiring Halls. On its face, the constitution leaves the setting up and running of Hiring Halls entirely up to the locals. Thus, Keefe's constitutional theory is inadequate to support his claims.
b. The Hiring Hall Rule Theory
Having determined that there is no basis to conclude that the operation of local Hiring Halls is controlled by the ILA Constitution, I must determine whether Keefe has a claim against the local unions for breach of the Hiring Hall rules.
In their motion for summary judgment, defendants argued that Keefe's allegations more properly should be viewed under the rubric of duty of fair representation claims arising out of § 8(a)(3), as amended 29 U.S.C. § 158(a)(3), and § 9(a), as amended 29 U.S.C. § 159(a), of the National Labor Relations Act ("NLRA"), rather than as breaches of the union constitution arising out of § 301(a) of the LMRA. Defendants contended that, properly construed as alleging a duty of fair representation claim, Keefe's suit is time-barred. Thus, as a threshold matter, I must decide the appropriate statute of limitations for the Gang 11 claims, which depends on whether they are § 301(a) claims, duty of fair representation claims, or a "hybrid" of the two.
(I) Statute of Limitations. Framed as a breach of the Hiring Hall rules, Keefe's Gang 11 claims, as defendants suggest, should be viewed as alleging a breach by the locals of their duty of fair representation under the NLRA. See Breininger v. Sheet Metal Workers Int'l Ass'n Local Union No. 6., 493 U.S. 67, 75 (1989); Daniels v. Pipefitters' Ass'n Local Union No. 597, 945 F.2d 906, 921-22 (7th Cir. 1991) (discrimination in job referral system violates duty of fair representation), cert. denied, 503 U.S. 951 (1992). As the Supreme Court noted in Breininger, the National Labor Relations Board has held that
any departure from established exclusive hiring hall procedures which results in a denial of employment to an applicant falls within that class of discrimination which inherently encourages union membership, breaches the duty of fair representation owed to all hiring hall users, and violates Section 8(b)(1)(A) and (2) [of the NLRA].493 U.S. at 78 n. 3 (quoting Operating Engineers, Local 406, 262 N.L.R.B. 50, 51 (1982), enf'd, 701 F.2d 504 (5th Cir. 1983) ( per curiam)).
In evaluating the statute of limitations consequences in cases alleging a "straightforward" duty of fair representation suit, courts have traditionally borrowed analogous state statutes of limitations. See, e.g., Reed v. United Transp. Union, 488 U.S. 319, 333 (1989). Here, Keefe's Gang 11 claims would be timely whether the Massachusetts statute of limitations for tort or for contracts were applied.
The applicable limitations period in Massachusetts for contract claims is six years, Mass. Gen. Laws ch. 260 § 2, and the limitations period for tort claims is three years. Id. § 2A.
However, in DelCostello, the Supreme Court established that the limitations period applicable to "hybrid" claims, which allege violations both by employers of their obligations under collective bargaining agreements and by unions of their duty of fair representation, is the six-month statutory limitations period derived from NLRA § 10(b), as amended 29 U.S.C. § 160(b). DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 169-73 (1983). The Court in DelCostello reasoned that the application of the 10(b) unfair labor practice limitations period is appropriate because hybrid claims have no analogue in state law and because such actions have implications for the stability of labor-management relations. Id.; see also Phelan v. Local 305 of United Ass'n of Journeymen, 973 F.2d 1050, 1061 (2d Cir. 1992) (applying NLRA § 10(b) six-month limitation period to action alleging violations of Hiring Hall procedures where violations implicated the collective bargaining relationship), cert. denied, 507 U.S. 972 (1993); Linnane v. Gen. Elec. Co., 948 F.2d 69, 74 (1st Cir. 1991) (finding plaintiff's claim a "hybrid" subject to 10(b) limitations period).
The determinative question, then, is whether Keefe's Gang 11 claims concern only the duty of fair representation or whether they are hybrid fair representation/§ 301(a) claims. If the latter, Keefe's suit is time-barred because he did not file this action within six-months of the locals' failure to place him in Gang 11.
Keefe's claim that the locals violated the Hiring Hall rules is, in essence, a dispute with the locals over internal union policy regarding gang assignments. As such, it does not concern the labor-management relationship with which DelCostello was primarily concerned in determining the appropriate statute of limitations for hybrid actions. 462 U.S. at 165. Indeed, in DelCostello, the plaintiff brought both a § 301(a) claim against his employer for breach of the collective bargaining agreement and a duty of fair representation claim against the union. Here, Keefe's Gang 11 claims are not against any employer, and they are based on alleged violations of the Hiring Hall rules, not on an alleged breach of the collective bargaining agreement. Thus, the claims have no § 301(a) predicate. See Breininger, 493 U.S. at 83 ("[A] suit against the union need not be accompanied by an allegation that an employer breached the contract, since whatever the employer's liability, the employee would still retain a legal claim against the union."); Hayes v. Consol. Servs. Corp., 517 F.2d 564 (1st Cir. 1975) (no § 301 jurisdiction over claimed breach of duty where no valid contract existed at time of discharge).
As the Third Circuit noted in Brenner v. Local 514, United Brothers of Carpenters and Joiners, 927 F.2d 1283 (3d Cir. 1991):
[T]he interest in the rapid resolution of labor disputes does not outweigh the union member's interest in vindicating his rights when, as here, a dispute is entirely internal to the union. Because the present dispute between the plaintiff union members and their union and its officials can have no more than an indirect influence on the union's ability to negotiate effectively with those employers who hire carpenters through the hiring hall, we conclude that the rationale behind DelCostello's narrowly circumscribed exception is inapplicable.Id. at 1295; see also Reed v. United Transp. Union, 488 U.S. 319, 331 (1989) (six-month limitations period not applicable where "federal interests in collective bargaining and in the resolution of disputes under collective-bargaining agreements, which require [six-month limitations period] simply are not directly involved"). Similarly here, insofar as they allege violations of the Hiring Hall rules, Keefe's Gang 11 claims concern the internal handling of internal procedures and in no way implicate or threaten the stability of labor-management relations between the unions and the shippers. Thus, I conclude that DelCostello is inapposite and the six-month limitations period is inapplicable. Accordingly, Keefe's Gang 11 claims, based on the locals' alleged violation of the Hiring Hall rules, are not time barred.
DelCostello left open whether borrowing analogous state statute of limitations periods for nonhybrid actions is appropriate, and the circuits are split on the issue. However, most of the cases that apply the six-month limitations period to nonhybrid claims have done so only where, unlike here, the claims against the union challenged union actions which were somehow related to conduct of employers and thus directly implicated the labor-management concerns expressed in DelCostello. See, e.g., Phelan, 973 F.2d 1050. But see Cantrell v. Int'l Bhd. of Elec. Workers, Local 2021, 32 F.3d 465, 467 (10th Cir. 1994) (applying six-month limitations period to nonhybrid claim and stating that "[u]niformity and predictability suggest all unfair representation claims should be governed by the same statute of limitations"). Additionally, in Reed, the Supreme Court held that the six-month statute of limitations for hybrid claims did not apply to a freestanding action fair representation claim under § 101(a)(2) of Labor Management Relations Disclosure Act ("LMRDA"). 488 U.S. at 331. Conversely, in Linnane v. Gen. Elec. Co., the First Circuit applied the six-month limitations period to a hybrid § 301/LMRDA claim, but implied that had the claim been a freestanding LMRDA fair representation claim, the analogous state limitations period for civil rights actions would have applied. 948 F.2d 69-74. Thus, I conclude that it is appropriate to borrow analogous state limitations periods for nonhybrid fair representations, even after DelCostello.
(ii) Sufficiency of Gang 11 Claims. Having determined that Keefe's Gang 11 claim regarding the Hiring Hall rules is timely, I turn to the question of whether Keefe has presented sufficient evidence to survive summary judgment. I find that he has not.
The evidentiary record provided by Keefe does not present sufficient evidence to sustain an inference that Keefe was denied the opportunity to transfer into Gang 11. While it was apparent from the record that Keefe protested his placement in Gang 12, it was equally clear that Keefe never satisfied the Rules Committee's neutral requirements for promotion.
For example, the record is clear that as of May 2000 Keefe had notice of the Hiring Hall rules regarding transfer and had the opportunity to discuss his promotion with Langan, the head of the Rules Committee, as well as any other member of the Rules Committee. Furthermore, the record shows that Keefe declined to apply for a promotion to Gang 11 when afforded the opportunity to do so at the June 22, 2000 Rules Committee meeting.
In a subsequent meeting of the Committee on September 28, 2000, Keefe requested transfer into Gang 11 but was told by the Rules Committee that he would have to produce his tax returns "like other members" in order to be considered. The Rules Committee apparently scheduled an additional meeting for the following week for the purpose of allowing Keefe to bring in the documents. But again, one week later, Keefe failed to produce his tax returns. Nevertheless, Keefe was allowed to switch gangs.
As evidence of the locals' discriminatory practice, Keefe claims that the locals unfairly denied him a spot in Gang 11 even as they allowed another individual, Thomas Trainor, who was initiated into Local 805 on the same day as Keefe, to switch from Gang 12 into Gang 11. In fact, the locals have provided sufficient evidence to establish that Trainor delivered his prior tax returns and the signed pledge to the Rules Committee as requested within days of his initiation. Keefe has produced no credible evidence to support the bald assertion that Trainor's promotion into Gang 11 did not conform to the requirements of Rule 36.
At the very time Keefe was complaining about being denied a promotion into Gang 11, another individual, Joseph Swales, was also applying for this promotion. Swales attended the September 28, 2000 meeting and, like Keefe, was told that he could not be promoted into Gang 11 until he delivered copies of his income tax returns to the Rules Committee. Like Keefe, Swales was invited to return to the Rules Committee the following week with the documents so that his application could be processed. The record shows that Swales in fact attended the October 3 meeting, produced his tax returns for the Rules Committee, and was promoted. Swales's narrative, like Trainor's, suggests that applicants for promotion into Gang 11 understood, and the Rules Committee consistently followed, the Hiring Hall rules. The experiences of Swales and Trainor put in sharp focus Keefe's apparent failure, on numerous occasions, to produce his tax returns for the Rules Committee, even when he knew full well that these documents were deemed essential for evaluating his promotion.
Accordingly, because Keefe failed to produce a sufficient basis for concluding that Hiring Hall rules and procedures are matters governed by the ILA Constitution, and because he did not adduce sufficient evidence tending to show that the Hiring Hall rules were unfairly applied to him, I will grant summary judgment on Counts II, III, and IV.
2. The Gang 12 Assignment Claim (Count I)
Keefe alleges that Local 805 breached Article XV of the ILA Constitution by failing to approve his transfer from Local 1947 to Gang 12 on or near August 10, 1998. Keefe seeks damages for lost work opportunities and failure to effect his transfer between August 10, 1998, the date he requested to be transferred to Local 805, and January 15, 2000, the date on which the transfer was finally accepted by Local 805.
As with the Gang 11 claims, defendants contend in their summary judgment papers that Keefe's claim on the transfer count is time-barred by the six-month statute of limitations applicable to duty of fair representation cases. In the alternative, they argued that Keefe's claims must be rejected because he was able to pursue successfully his transfer request by means of internal union remedies.
Article XV provides that "any member in good standing may transfer his membership from one local union to another provided he is working at the trade covered by the local." Section 4 states:
No local union shall refuse a member in good standing unless there is good and sufficient reason for so doing. Upon the request of the International President or International Secretary-Treasurer, a local union refusing a transfer shall be required to furnish in writing the reasons for its actions."
After reviewing these stated reasons for denial, "the International Executive Officers shall have the authority to grant or deny such transfers," subject to the appeal mechanisms delineated in Article XIX.
In this case, there is no dispute that Keefe was a member in good standing of Local 1947 at the time he applied for transfer to Local 805. Furthermore, there is no question that Keefe was denied such transfer. The record establishes, and defendants do not dispute, that the reasons offered by Local 805 for denying Keefe's transfer were deemed not "good and sufficient" by the investigating committee appointed by International President Bowers. Finally, there is no dispute that Local 805 admitted Keefe on January 15, 2000 after receiving an ultimatum from President Bowers commanding it to do so.
In their motion for summary judgment on Count I, defendants contended that Keefe's suit must be rejected because he has attempted to "package" a claim for a denial of hiring preference based on his membership in Local 1947 as a violation of the ILA Constitution. Citing the First Circuit's decision in Linnane, defendants argue that Count I of Keefe's complaint is, like Counts II, III, and IV, a duty of fair representation suit dressed up in constitutional garb. Defendants' reliance on Linnane is misplaced.
Defendants' arguments fail to address fully the fact that, unlike Counts II-IV, Count I is based on clear, express language in the ILA Constitution controlling the process of transfer of members between locals. Not only does Article XV provide for the possibility of transfer, it establishes a detailed and extensive procedure for addressing alleged violations of the right to transfer. Thus, Keefe's Gang 12 claims, unlike his Gang 11 claims, are properly § 301(a) claims, Wooddell v. Int'l Bhd. of Elec. Workers, Local 171, 502 U.S. 93, 103 (1991), and they implicate the duty of fair representation. There is nothing in the text of Article XV to suggest, as defendants contend, that the mere fact that the claimant in a suit for violation of the ILA Constitution raised other issues, such as a request for hiring preference in his transfer application, is a sufficient reason to reject the claim.
Defendants contended, in the alternative, that even if Keefe's claim is not barred by the statute of limitations applicable to duty of fair representation claims, the fact that Keefe "vigorously pursued" internal remedies delineated in Article XV, § 4 and succeeded in accomplishing his transfer should preclude Keefe's suit for damages here. Assuming Local 805 breached the ILA Constitution by denying Keefe's transfer, I can find no authority, and defendants cited none, for the proposition that Keefe should be denied a remedy for any losses he may have suffered because he pursued intra-union procedures. Indeed, the precedents suggest precisely the opposite, namely that a party claiming a violation of the duty of fair representation is obligated to exhaust intra-union remedies only when the remedies sought can be fully provided by the union mechanism without resort to federal court. See Clayton v. UAW, 451 U.S. 679, 685 (1981); Doty v. Sewall, 908 F.2d 1053, 1061 (1st Cir. 1990).
In this case, the ILA Constitution makes no provision for the award of monetary damages to an individual who successfully pursues an action for breach of the constitution. Thus, Keefe's federal cause of action for breach of the ILA Constitution should proceed, regardless of whether or not he had exhausted his internal remedies, because the compensatory relief Keefe requests is not contemplated by the ILA Constitution. See Clayton, 451 U.S. at 685; Doty, 908 F.2d at 1061.
The facts of Doty are illustrative of the proper evaluation of damages claims in § 185 claims. Doty alleged that his union had breached its duty of fair representation by, among other things, failing to process his application for transfer between locals. 908 F.2d at 1061. The district court found that the Teamsters' Constitution specified that a party must exhaust intra-union remedies prior to commencement of a civil suit. Id. The defendants argued that Doty's failure to exhaust these remedies foreclosed federal jurisdiction over the "delayed transfer" claim. Id. The First Circuit upheld the trial court's determination that exhaustion was not required under these circumstances chiefly because Teamster procedures did not provide money damages to an aggrieved member. See id. The First Circuit then affirmed the jury's verdict awarding compensatory and punitive damages. Id. at 1062.
In light of such authoritative precedent governing the request for compensatory damages in actions for breach of a union constitution, I concluded that the defendants' request for summary judgment on Count I must be denied.
III. FINDINGS OF FACT AND CONCLUSIONS REGARDING DAMAGES
The parties disputed the work opportunities Keefe lost and the damages to which Keefe was entitled for the period between August 10, 1998 to January 15, 2000. The issues are inextricably intertwined and may best be understood by proceeding directly to the damages inquiry. The measure of damages is relatively easy to frame. Had Keefe been a member of Local 805, Local 800, or Local 799 in fact, during this time period, he would have been eligible for participation in Gang 12. Thus, if any more junior worker than he, i.e., a non-union casual longshoreman, was sent out on a job when he was available in the Hiring Hall for such work, Keefe would have suffered damages. The burden is on Keefe to demonstrate with reasonable certainly both that he was present and available for a particular job and that a more junior person received it. I set forth in this Section my Findings of Fact and Conclusions of Law regarding the dispute as to Count I.
As the trial began, the parties respectively took what were essentially all or nothing positions. Keefe maintained that he was present in the Hiring Hall constantly and so was entitled to damages for every day when members of Gang 12 had been sent out and he was not. The defendant Local 805 took the position that Keefe's mere statement of constant availability was not credible and hence insufficient for him to carry his burden of showing with reasonable certainty his entitlement to pay for every day someone junior to him was sent out.
Dissatisfied with the parties' positions and development of the evidence, I directed the preparation of a stipulation showing those days in which persons other than Keefe with lower seniority than he were sent out on jobs and Keefe was not. This led to a stipulation showing 60 days on which Keefe was not sent out on Massport jobs and 31 days (some of which overlap the Massport job days) on which he was not sent out on P.O. Ports of New England jobs. I find these dates represent the universe from which damages can be calculated. I further find Keefe has adduced insufficient evidence with respect to his entitlement of damages for any but six of those days. To find Keefe entitled to any additional days would be wholly speculative.
I have considered all of the evidence and reasonable inferences to be drawn from that evidence in making my findings. Starting with the evidence of the greatest generality there is the testimony from Keefe that essentially he was in the Hiring Hall for work every day. I do not find that assertion credible after an opportunity to view Keefe on the stand and to consider other inconsistent evidence, including his own contemporaneous notes, which suggest that his memory is, at best, retrospectively generous regarding his availability. His wholesale claim is simply overbroad and I do not credit it.
I do note in connection with wholesale claim that it was to some degree corroborated by the testimony of Gerard H. Partee, one of the dispatchers during the relevant time period, who claimed that Keefe was generally present when there was work anticipated for the Hiring Hall. Partee was not a particularly attentive witness, and his testimony was delivered in a somewhat off-handed manner (no doubt, in part, because he was less than pleased about his obligation to appear and testify). Nevertheless, I do find that Partee's general statement supports the proposition that Keefe was in the Hiring Hall with some regularity, but was not sent out during the damages period when others were who were less senior to him.
Partee also maintained that Keefe turned down jobs other than as a driver. Despite my considerable efforts to have the parties refine the damages evidence, there is no evidence before me regarding the availability of driver jobs on the stipulated days. Thus, I disregard this aspect of the Partee testimony, except that it suggests that even when present in the Hiring Hall Keefe turned down some potential work assignments.
Also at a level of some generality is the evidence of Keefe's actual work over several years surrounding and including the period for which damages are claimed. No clear and consistent pattern of work habits is evident. In 1998, the year he began seeking Hiring Hall assignments in Boston, roughly two months of which is within the damages period, he worked 325 hours apart from the disputed hours. In 1999, which is completely within the damages period, he worked 949 hours apart from the disputed hours. In the year 2000, slightly more than one quarter of which was also in the damages period, he worked 466.5 hours apart from the disputed hours. In the following years, after he had been formally transferred to Local 805, Keefe continued to work fluctuating hours. In 2001, he worked 869.5 hours; in 2002, he worked 705 hours; and in 2003, he worked 227.75 hours. While in light of this pattern (or more accurately lack of a pattern) it is difficult to draw a meaningful conclusion about the number of hours he would have worked during the damages period, I conclude it is unlikely Keefe would have worked any more than 1000 hours any year during the damages time period and more likely he would have worked considerably less in most years.
The work year for Boston Shipping Association Employee service histories is from October 1 to September 30 of each calendar year.
The focus of Keefe's objections throughout was the preference in particular for Brian Manning, a non-union casual longshoreman whose uncle was Kevin Manning, one of the dispatchers. Keefe maintains that nepotism caused Brian Manning to be sent out before him. The ILA representatives who testified at trial acknowledged that preference was given to family members of those with longshoreman credentials in the Port of Boston. In this regard, Keefe stood on the same footing as Brian Manning and several others designated as "casual longshoremen." According to union officials, when non-gang members were equally eligible, as were, for example, Keefe and Brian Manning by virtue of identical seniority, the dispatchers left to those individuals of equal status the responsibility to make an arrangement between or among themselves as to which would have preference on any given day. While this may have been the understanding of the dispatchers, given the level of controversy over Brian Manning receiving jobs when Keefe did not, I view each day on which Brian Manning received a job and Keefe did not to be a potential occasion on which Keefe was present and was denied work in preference for Brian Manning.
The only written corroboration of specific dates when work was denied was provided by notes which Keefe took periodically during the damages time period. Some of these notes were written on dispatch slips for particular days. Keefe testified, however, that the notes were not related to the date of the assignment, but were merely undated contemporaneous notes he made on available scrapes of paper after going through the Hiring Hall process. The undated notes are of very limited assistance to Keefe, first because they do not of themselves permit any identification with particularity of those dates on which Keefe actually did work, but also because for the most part, they report Keefe's views whether the Hiring Hall dispatcher acted in what Keefe considered the right way. Of the undated notes, only seven seem to demonstrate or suggest that Keefe did not properly get work.
There are a few dated notes, but an evaluation of those dated notes shows only six days on which the notes are corroborated by the stipulation. That degree of corroboration is sufficient for me to award damages on those six days but no more. Some of the dated notes are not corroborated by the parties' stipulation. To that degree, they, of course, undermine Keefe's credibility more generally. Moreover, I observe that a number of the dated notes, like the undated notes, provide an indication that the Hiring Hall dispatching practices were appropriate from Keefe's perspective and consequently do not support damages.
Pulling these several pieces of evidence together, I will award Keefe those days which are corroborated by correlation between dated notes and the stipulation. These are: December 10, 1998 (6 hours); February 25, 1999 (6 hours); March 11, 1999 (4 hours); April 11, 1999 (16 hours); August 26, 1999 (6.5 hours); and December 3, 1999 (4 hours).
The plaintiff's notes state "LOST A DAY'S PAY"; I award 6 hours because this is the time recorded that day for Brian Manning.
The plaintiff's notes state "LOST 12 HRS PAY"; I award 16 hours because Brian Manning is recorded as working 8 hours straight time and 4 hours double time for a total of 16 hours pay.
Although the plaintiff's notes state "LOST 8 HRS PAY," I award 6.5 hours because this is the amount recorded for Brian Manning that day.
At all relevant times under the ILA collective bargaining agreement with Boston Shipping Association, the rate of pay was $27.00 per hour. Consequently, Keefe is entitled to $1147.50 for the 42.5 hours of work I award. He is, in addition, entitled to a total of $42.50, consisting of $1.00 for each hour of work awarded, to be paid into his BSA/ILA Retirement Account. The award of these hours, however, does not entitle Keefe to any additional vacation pay because even with the award his new yearly hours worked (987.5 hours for 1999 and 470.5 for 2000) did not move him to a different vacation pay threshold under the collective bargaining agreement.
Given that plaintiff's lost earnings damages incurred some time ago, I will exercise my equitable powers to award prejudgment interest for the time value of that tangible loss. Colon Velez v. Puerto Rico Marine Mgmt., Inc., 957 F.2d 933, 941 (1st Cir. 1992). As in Colon Velez, I look to state law for guidance because the LMRA is silent as to prejudgment interest. The Massachusetts analog is Mass. Gen. Laws ch. 231, § 6B, which directs prejudgment interest at 12% from the date this action was commenced. Cf. Leahy v. Local 156, AFSCME, 399 Mass. 341, 354 (1987).
CONCLUSION
Having granted summary judgment to the defendants on Counts II, II and IV, I have made Findings of Facts and Conclusions of Law pursuant to Fed.R.Civ.P. 52 on Count I in which I award the plaintiff $1147.50 in wages and $42.50 to be paid into his BSA/ILA Retirement Account together with prejudgment interest at the rate of 12% per annum to run from February 1, 2001 to the date of judgment. Post-judgment interest shall be in accordance with 28 U.S.C. § 1961. The Clerk is directed to enter judgment for the plaintiff accordingly.