Felice v. SeverFelice v. Sever
Ernest B. Orsatti (argued), Jubelirer, Pass & Intrieri, P.C., Pittsburgh, PA, for appellee.
Before: SLOVITER, Chief Judge, STAPLETON and LAY*, Circuit Judges.
OPINION OF THE COURT
SLOVITER, Chief Judge.
Thomas C. Felice, the plaintiff in the district court, appeals from two orders of the district court. One is the entry of judgment after a non-jury trial in favor of defendant union and two of its officers on Felice‘s breаch of the duty of fair representation claim brought under the
I. FACTS AND PROCEDURAL HISTORY
The facts relevant to this appeal are not disputed here and are taken primarily from the district court‘s findings of fact. Before any of the events relevant to this case, plaintiff Thomas C. Felice was a member of the defendant union, Teamsters, Chauffeurs, Warehousemen and Helpers of America Local Union No. 30 (Local 30 or union), and was employed at M & G Convoy, Inc. (M & G) where he held the position of union shop steward. Local 30 is a “labor organization” within the meaning of the
In October 1987, Felice ran unsuccessfully for union office. The winning slate of candidates included defendant Thomas Sever, the President of Local 30, and defendant Ronald Miller, the Business Manager. Both assumed these offices in January 1988. Thereafter, Sever instituted a campaign of retaliation against Feliсe, which ranged from “keeping a tight rein on Felice‘s participation in union meetings” to “attempting to manipulate steward elections.” App. at 123. As a result of Sever‘s efforts, Felice lost his position as shop steward at M & G and the related “super-seniority.” Consequently, Felice was laid off from his position at M & G in July 1988.
According to the union by-laws, a union member who has not been employed in a collective bargaining unit represented by the union for a period of six months is issued an honorable withdrawal card, which terminates active membership in the union and deprives the member of the right to seek union office. On January 31, 1989, Felice was issued an honorable withdrawal card by Local 30 because he had not obtained employment in another bargaining unit represented by Local 30.
The critical conduct for purposes of this appeal occurred during the six-month period from the time of Felice‘s layoff from M & G to the time he was issued the honorable withdrawal card. On November 14, 1988, Felice applied for a job with the Westmoreland County Park Police. The County of Westmoreland is a political subdivision of the Commonwealth of Pennsylvania. Pursuant to a collective bargaining agreement entered into under the
The County Commissioner, Fey Vidmer, arranged to hire Felice for a position with the Park Police, contingent on the receipt of salary reimbursement from the Private Industry Council of Westmoreland/Fayette, Inc. (PIC), an entity established pursuant to the
Beginning in late November 1988 through early December 1988, Felice inquired why his application for employment with the County of Westmoreland had not yet been approved; Miller offered a variety of excuses in response. In late December 1988, the union‘s attorney approved signing the Union Concurrence Form if the County assured the union that hiring Felice would not result in the layoff of any bargaining unit employees. In early January 1989, Miller sought that assurance from Corsaro. On February 6, 1989, after Felice had been issued an honorable withdrawal card from Local 30, Corsaro responded to Miller‘s earlier request by a memorandum to Sever stating that the County no longer needed the union‘s signature on the Concurrence Form as it believed that a recent change in state law prevented it from hiring Felice because he had not completed and was not enrolled in municipal police training.2 Eventually Felice obtained other employment, but it was not in a bargaining unit represented by Local 30. During the period between Felice‘s layoff and the issuance of the withdrawal card, Sever continued to express retaliatory intentions toward Felice, stating on several occasions that Felice would “never work in Local 30 again.” App. at 123.
Felice originally filed this suit in Pennsylvania state court naming five defendants: Sever, Miller, Local 30, the County of Westmoreland, and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (Intеrnational Union). Of the eight counts in the complaint, five are relevant to this appeal.3 Counts I, III, and V alleged that Sever and Miller had violated state law by defaming Felice and interfering with his employment opportunities with the County of Westmoreland. Count II alleged that Sever, Miller, and Local 30 (often referred to jointly as Local 30) had breached the duty of fair representation, primarily by refusing to sign the Union Concurrence Form. Count VIII sought punitive damages for the intentional misconduct of any of the defendants.
Defendants removed this action to federal court pursuant to
The case was then transferred to Judge Lewis for a bench trial on the remaining claims. At the conclusion of the trial, the district court entered judgment for the defendants on Felice‘s claim that Local 30 had breached its duty of fair representation by interfering with Felice‘s employment with the County of Westmoreland,4 holding that Local 30 did not owe Felice a duty of fair representation in its conduct with respect to the Union Concurrence Form.
Felice is appealing the entry of judgment for defendants Sever, Miller, and Local 30 on his breach of the duty of fair representation claim, and the grant of summary judgment for individual defendants Sever and Miller on his state law claims.
At the outset, we must consider defendants’ suggestion that the district court lost subject matter jurisdiction over this case when the court dismissed his civil rights claim against the County of Westmoreland and Felice abandoned his claim for breach of the duty of fair representation under federal law against Local 30 based on conduct that occurred while Felice was employed at M & G. Defendant concedes that the inclusion of these claims in the complaint provided an adequate basis for removal of the action from state to federal court. The fact that the federal claims that were the basis for the removal were unsuccessful or were dropped during subsequent proceedings does not deprive the district court of jurisdiction, unless the federal claims were “insubstantial on their face.” Hagans v. Lavine, 415 U.S. 528, 542 n. 10 (1974) (quotation omitted); see also Lunderstadt v. Colafella, 885 F.2d 66, 69-70 (3d Cir.1989). They were not insubstantial in that sense, and thus the district court never lost subject matter jurisdiction. Moreover, it developed that Felice was in fact asserting a breach of fair representation claim against Local 30 grounded on the
III. DISCUSSION
A. Duty of Fair Representation
Felice‘s principal challenge is to the district court‘s holding that Local 30, Sever, and Miller did not owe him a duty of fair representation under the
The
Jurisdiction over a claim that a union has breached its duty of fair representation is based on
Ordinarily, an employee files a claim against the uniоn alleging breach of the duty of fair representation together with a claim against the employer alleging breach of the collective bargaining agreement in a “hybrid” section 301/duty of fair representation suit. In the “hybrid” suit, the plaintiff will have to prove that the employer breached the collective bargaining agreement in order to prevail on the breach of duty of fair representation claim against the union, and vice versa. See United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 66-67 (1981) (Stewart, J., concurring in the judgment). Thus, the claims are “inextricably interdependent.” Id.; see also DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 164-65 (1983).
Defendants argue that because the County of Westmoreland is a “political subdivision” not subject to section 301, Felice cannot maintain his duty of fair representation claim against Local 30. We have previously held that the term “employer” in the
The Supreme Court has made clear that its reasoning in Vaca v. Sipes about the relationship between the unfair representation claim against the union and the section 301 claim against the employer for breach of a collective bargaining agreement “in no way implies ... that a fair representation action requires a concomitant claim against the employer for breach of contract.” See Breininger, 493 U.S. at 80 (emphasis in original). Thus, in Breininger, the Court held that a union‘s administration of a hiring hall is subject to the duty of fair representation even though there is no possible breach of contract claim against the employer. Id. at 87-89. Similarly, a union‘s negotiation of a collective bargaining agreement is subject to the duty of fair representation, even though again there could be no possible breach of contract action agаinst the employer. See, e.g., Steele, 323 U.S. at 195, 202-03; see also Nedd v. United Mine Workers of Am., 556 F.2d 190, 200 (3d Cir.1977), cert. denied, 434 U.S. 1013 (1978).
Duty of fair representation claims against a union have been extended to a variety of other contexts in which there was no basis for a claim against the employer. For example, in Retana v. Apartment, Motel, Hotel & Elevator Operators Union, Local No. 14, 453 F.2d 1018, 1022 n. 6, 1023 (9th Cir.1972), the court held that a union member‘s claim that the union failed to provide Spanish-speaking members with a bilingual liaison to the union and a copy of the collective bargaining agreement in Spanish, failed to explain to those members their rights and responsibilities as union members, and failed to seek the establishment through collective bargaining of a bilingual supervisory system adequately alleged a breach of the duty of fair representation because each of these actions “concerne[d] matters related to the negotiation or administration of the collective bargaining agreement.”
Finally, we have held that a union has a duty not to deliberately misrepresent its bargaining efforts and positions in order to induce ratification of a collective bargaining agreement, and the breach of that duty gives rise to an unfair representation claim. See Deboles v. Trans World Airlines, Inc., 552 F.2d 1005, 1018-20 (3d Cir.), cert. denied, 434 U.S. 837 (1977); see also Anderson v. United Paperworkers Int‘l Union, 641 F.2d 574, 578 (8th Cir.1981).
The independence of a duty of fair representation claim against the union from a breach of the collective bargaining agreement claim against the emрloyer does not mean that federal law provides a forum for every complaint the union member may have against the union. The parameters of a viable duty of fair representation claim must be gleaned from the function that such a claim serves.
As is evident from the foregoing, the duty of fair representation is inextricably linked to the union‘s status as exclusive bargaining representative in the collective bargaining process or in the administration of rights under a collective bargaining agreement. For example, in Breininger the union‘s obligation to run the hiring hall arose out of a provision of the collective bargaining agreement. As the Supreme Court explained:
Only because of its status as a Board-certified bargaining representative and by virtue of the power granted to it by the collective-bargaining agreement does a union gain the ability to refer workers for employment through a hiring hall. Together with this authority comes the responsibility to exercise it in a nonarbitrary and nondiscriminatory fashion, because the members of the bargaining unit have entrusted the union with the task of representing them.... The key is that the union is administering a provision of the contract, something that we have always held is subject to the duty of fair representation.
The thread that links Breininger and other duty of fair representation cases that are not “hybrid” section 301 cases is that the union is acting in its role as exclusive bargaining representative in the collective bargaining process.6 Because Felice was never employed by the County of Westmoreland and therefore he was never covered by the collective bargaining agreement, he has no section 301 breach of contract claim against the County of Westmorеland and no duty of fair representation claim against the union based on that contract. Thus, Felice‘s claim falls outside the category of “hybrid” claims where the duty of fair representation most often arises.
Nor is this case comparable to those cases imposing a duty of fair representation on unions in the negotiation or administration of collective bargaining agreements. Felice‘s claim is limited to Local 30‘s failure to sign the Union Concurrence Form submitted to it by the County of Westmoreland. Local 30 was neither negotiating nor administering a collective bargaining agreement in that context.
Felice asserts, however, that the action of Local 30 in refusing to sign the Union Concurrence Form approving Felice‘s employment with the County of Westmoreland is subject to the duty of fair representation because Felice was a member of Local 30, which was the exclusive bargaining representative for the County of Westmoreland. However, the duty of fair representation that Felice seeks to impose on Local 30 is not linked in any fashion to its role as the exclusive bargaining representative on Felice‘s behalf, because Felice was not, and had never been, a member of that unit.
Therefore we will affirm the judgment of the district court in favor of defendants Local 30, Sever, and Miller as regards their alleged breach of the duty of fair representation.
B. Individual Liability of Union Officers
We turn next to Felice‘s challenge to the grant of summary judgment for defendants Sever and Miller on Felice‘s state law claims. In his complaint, Felice asserted a number of state law claims against Sever and Miller, ranging from defamation during a meeting of union members and at other unspecified times to interference with Felice‘s contract with the County of Westmoreland.8 The district court granted summary judgment for defendants Sever and Miller on Felice‘s state law claims on the ground that
The district court specifically referred only to the defamation claim. It held that the “[d]efamatory remarks allegedly published to Westmoreland County personnel were made ... after County officials had authorized [Felice‘s] hiring and he became covered by the collective bargaining agreement between the Local 30 and the County“; that therefore the remarks “fall within the ambit of the collective bargaining process“; and that
Notwithstanding the literal language of this section which merely exempts union agents and members from personal liability for judgments against the union, in Atkinson v. Sinclair Refining Co., 370 U.S. 238 (1962), the Supreme Court gave the statute a broader reading. Thе purpose of
Sever and Miller view the immunity extended by
Both Atkinson and Reis applied the individual immunity to individuals covered by a collective bargaining agreement. In Crilly, we recognized that one consequence of finding that a collective bargaining agreement with a political subdivision was not covered by
We followed that principle without citation to Crilly in our subsequent decision in Kerry Coal Co. v. United Mine Workers, 637 F.2d 957 (3d Cir.), cert. denied, 454 U.S. 823 (1981), upholding a state law damages verdict against individual union officers. Kerry, a coal producer who had no bargaining relationship with the unions that picketed its establishment, won a jury verdict against the unions and individual members and officers for illegal secondary picketing, harassment of employees, and destruction of equipment. On review, we upheld the pendent state law damage verdicts against the individual defendants for intentional interference with contractual relationships. Id. at 964-66.
Kerry was analyzed in Wilkes-Barre Publishing Co. v. Newspaper Guild of Wilkes-Barre, Local 120, 647 F.2d 372, 377 (3d Cir.1981), cert. denied, 454 U.S. 1143 (1982), where the employer, a newspaper publisher, sued the unions for breach of contract and individual members for tortious interference with a contract for establishing a competing newspaper during a strike. We held, in reliance on Atkinson, that under
All of the cases cited applying
When Judge Cohill granted summary judgment on the state claims, he did so on the ground Felice was covered by a cоllective bargaining agreement between Local 30 and the County of Westmoreland. However, as we noted in our preceding discussion, after trial Judge Lewis found that Felice was not a member of the collective bargaining unit covering the County. There is thus a patent inconsistency between the two decisions. The status of Felice as an employee vel non of the County of Westmoreland was a disputed issue of fact because the defendants denied that Felice had become such an employee. Therefore, summary judgment could not properly have been predicated on that fact, and the trial court‘s finding must govern.
Although Local 30 was the union representative for employees of the County of Westmoreland, that was not, as we previously noted, by virtue of the
We conclude that a state law claim brought against a union officer that does not implicate a collective bargaining agreement covered by
IV. CONCLUSION
For the foregoing reasons, we will affirm the district court‘s entry of judgment for defendants Local 30, Sever, and Miller on Felice‘s duty of fair representation claim, but we will reverse the grant of summary judgment for defendants Sever and Miller on Felice‘s state law claims and remand the case for proceedings in accordance with our opinion. On remand, the district court will have the discretion to retain the case for disposition by it or remand to state court now that there are no longer any federal claims remaining. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988); Henglein v. Informal Plan for Plant Shutdown Benefits for Salaried Employees, 974 F.2d 391, 398 (3d Cir.1992).
One half of the taxable appeal costs are to be borne by Felice; the other half by Sever and Miller jointly.