Barger v. United Brotherhood of Carpenters and Joiners of America, 398 F.Supp.3d 245

Jonathan Barger, a Local 2 member, worked intermittently for Solid Platforms Industries (SPI) at Dynegy’s Zimmer Station and was laid off in October 2015.
After the layoff Barger told Dynegy maintenance manager Joe Lind that SPI supervisors (union members) were "ghost payrolling"; Lind thereafter banned Barger from the Zimmer site.
IKORCC business agent David Meier filed disciplinary charges against Barger under the UBC Constitution alleging he slandered union members and caused dissension; IKORCC’s trial committee upheld the charge and imposed a $5,000 fine (stayed pending appeal).
Barger pursued internal UBC grievances/appeals; the UBC ultimately granted his appeal and returned his $50 fee, and the fine was never enforced.
Barger worked briefly as an independent contractor for ESS (1099), then stopped receiving assignments; he sued alleging (1) LMRDA free-speech retaliation by Local 2/IKORCC/UBC, (2) conspiracy to violate the LMRDA by IKORCC/UBC, and (3) tortious interference by Dynegy with his ESS employment.
The court considered motions for summary judgment by IKORCC, Local 2, UBC, and Dynegy and granted them all.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Barger’s statements are protected "free speech" under §101(a)(2) of the LMRDA	Barger argues his report accusing union officers of ghost payrolling is protected criticism of union officials and union corruption	Defendants argue the statements were private, self-interested, limited to one or two persons, and thus not a matter of "union concern" protected by the LMRDA	Court: Speech not protected; it was primarily a personal grievance/self-interested act and failed the union-concern threshold; LMRDA claim dismissed
Whether there is a viable conspiracy claim to violate the LMRDA	Barger asserts IKORCC/UBC conspired to retaliate for his protected speech	Defendants: No underlying LMRDA violation, so conspiracy fails	Court: Conspiracy claim fails because no underlying LMRDA violation
Whether Dynegy tortiously interfered with Barger’s employment with ESS	Barger contends Dynegy’s ban and actions caused ESS to stop assigning him work, interfering with an employment relationship	Dynegy: Barger was an independent contractor, not an employee, so tortious interference with an employment relationship cannot lie	Court: Summary judgment for Dynegy; Barger was an independent contractor (1099, written contract) and cannot convert that into an "employment relationship" for this tort; affidavit contradicting deposition disregarded

Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir.) (threshold inquiry on whether speech involves public/union concern)
Kazolias v. IBEW Local Union 363, 806 F.3d 45 (2d Cir.) (distinguishing personal grievances from speech aimed at changing union policy)
Petramale v. Local No. 17 of Laborers Int’l Union, 736 F.2d 13 (2d Cir.) (speech critical of union officials can be protected when made in a union context)
Breininger v. Sheet Metal Workers Int’l Ass’n Local Union No. 6, 493 U.S. 67 (1989) (limits on §529 discipline theory; informs analysis of union discipline/referral contexts)
Reid v. Sears, Roebuck and Co., 790 F.2d 453 (6th Cir.) (a party cannot create a genuine issue of fact by submitting an affidavit contradicting earlier deposition testimony)