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Barger v. United Brotherhood of Carpenters

United States District Court, S.D. Ohio, Western Division

March 30, 2018

Jonathan Barger, et al., Plaintiffs,
v.
United Brotherhood of Carpenters and Joiners of America, et al., Defendants.

          ORDER

          Susan J. Dlott, Judge United States District Court.

         This matter is before the Court on Defendant Dynegy, Inc.'s Motion to Dismiss Plaintiffs' Third Amended Complaint (Doc. 43), Defendant Brotherhood of Carpenter and Joiners of America's Motion to Dismiss Verified Third Amended Complaint (Doc. 45), Defendant Solid Platforms, Inc.'s Motion to Dismiss (Doc. 46), Defendant Indiana/Kentucky/Ohio Regional Council of Carpenter's Motion to Dismiss Causes of Action I, II, III and IV of the Third Amended Complaint (Doc. 47), and Defendant Local Union 2, United Brotherhood of Carpenters and Joiners of America's Motion to Dismiss Causes of Action I-IV and VI-VIII of the Third Amended Complaint (Doc. 68). Plaintiffs have also filed a Motion for Leave to File a Modified Third Amended Complaint Withdrawing Counts Six and Eight of the Third Amended Complaint. (Doc. 65.) Local 2, in turn, filed an Unopposed Motion for Extension of Time to Move or Plead (Doc. 66).

         For the reasons that follow, Dynegy, Inc.'s Motion (Doc. 43), Brotherhood of Carpenter and Joiners of America's Motion (Doc. 45), and Indiana/Kentucky/Ohio Regional Council of Carpenter's Motion (Doc. 47), and Local Union 2, United Brotherhood of Carpenters and Joiners of America's Motion (Doc. 68) are each granted in part and denied in part. Defendant Solid Platforms, Inc.'s Motion to Dismiss (Doc. 46) is granted. The Motion for Leave to File a Modified Third Amended Complaint (Doc. 65) is granted, and the Motion for Extension of Time (Doc. 66) is denied as moot.

         I. BACKGROUND[1]

         A. Facts

         Plaintiffs brother and sister Jonathan Barger and Charlotte Nealan are members of Defendant Local 2 (“Local 2”) of Defendant United Brotherhood of Carpenters and Joiners of America (the “Union”).[2] (Doc. 41 at PageID 360, ¶¶ 1-3.) From 2007 to 2015, Barger was employed by Defendant Solid Platforms, Inc. (“Solid Platforms”), which is a union contractor that performs general carpentry and scaffolding services. (Id. at ¶ 4.) Nealan was employed by Solid Platforms for “most of that same time.” (Id. at ¶ 5.)

         Though Plaintiffs were members of the Union, Solid Platforms was not required by any collective bargaining agreement to have “cause” to terminate their employment, and no grievance procedure was available to them in the event of such termination. (Id. at ¶ 8.) Barger and Nealan's employment was thus “at will.” (Id. at ¶ 9.)

         Pursuant to a contract with Defendant Dynegy Administrative Services Company (“Dynegy”), Solid Platforms performed scaffolding services at the Zimmer Power Station (“Zimmer”) near Moscow, Ohio. (Id. at ¶ 10.) Most of Barger's work for Solid Platforms was performed at Zimmer. (Id. at ¶ 11.) Nealan worked at multiple locations for Solid Platforms, including “multiple tenures of employment at Zimmer.” (Id. at PageID 360-61, ¶ 12.)

         In 2012, while working for Solid Platforms, Nealan observed “numerous instances of Solid Platforms' employees” - including employees Art Galea III and Daniel Jason Hall - “charging Dynegy, or its related or predecessor company, for hours they did not work.” (Id. at PageID 361, ¶ 13.) All of the Solid Platforms employees Nelean observed engaging in this “fraudulent activity” were members of the Union. (Id. at ¶ 14.) Nelean told Barger about what she observed in the spring or summer of 2012. (Id. at ¶ 15.) In turn, Barger “made observations supporting what his sister had told him.” (Id. at ¶ 16.)

         In the fall of 2013, Barger informed Kipp Kahlenbeck, who was both a Project Manager for Solid Platforms at Zimmer and member of the Union, that he believed that Solid Platforms had been falsely reporting to Dynegy the number of hours worked by its employees. (Id. at ¶ 17.) Kahlenbeck told Barger that he would investigate, although Barger never heard anything about the issue thereafter. (Id. at ¶ 18.) Subsequently, “additional information came to [Barger's] attention about the padding of hours by his fellow union members, including information indicating that Kahlenbeck himself was involved.” (Id. at ¶19.) Barger was “increasingly concerned by these activities because they were dishonest, and because they involved fraud against a public utility company, and thus could adversely affect the public.” (Id. at ¶ 20.)

         On October 27, 2015, while on a temporary layoff from Solid Platforms, Barger had a phone conversation with a Dynegy manager named Joe Lind, during which Barger “spoke up about the falsification of hours he believed union members at Solid Platforms had been engaged in, and the resulting overcharges to Dynegy.” (Id. at PageID 362, ¶ 22.) Barger reported that Galea, Hall, and Kahlenbeck had been improperly padding hours on behalf of Solid Platforms. (Id. at ¶ 23.) Lind told Galea, Kahlenbeck, and Hall about the statements Barger made, who, upon information and belief, then told Dave Meier, business agent for the Union and a member of Local 2. (Id. at ¶ 24-25.) On October 29, 2015, Barger reported the same allegations to Meier and his position that if the Union was going to engage in this type of behavior, he did not want to be a part of it. (Id. at ¶ 26.)

         On October 30, 2015, Meier filed charges against Barger with Defendant Indiana/Kentucky/Ohio Regional Council of Carpenters (“IKORCC”), which is an affiliate and agent of the Union and responsible for adjudicating charges. (Id. at ¶¶ 27-29.) Meier alleged Barger intended to slander the Union members by the statements made to Lind. (Id. at PageID 363, ¶ 28.) He claimed Barger caused dissention and was failing to be respectful to his fellow Union members. (Id.)

         On May 11, 2016, the IKORCC conducted a trial on the charges before a Trial Committee of the IKORCC, which found Barger guilty and recommended that fines totaling $5, 000 be imposed against him. (Id. at ¶¶ 33-35.) On August 2, 2016, the IKORCC accepted the recommendation of the Trial Committee, imposed the fines, and informed Barger that his failure to pay the fines within 30 days would result in his ceasing to be a member in good standing of the Union, which in turn would cause him to forfeit his retirement benefits. (Id. at ¶¶ 36-37.)

         Barger appealed the decision to the Union. (Id. at ¶ 38.) He also filed three grievances with the Union regarding the charges against him and the failure of Local 2 to assign him work after his complaints. (Id. at PageID 364, ¶ 39.) The Union denied the grievances and failed to act on the appeal of the IKORCC's decision for months. (Id. at ¶ 40.) The Union issued a ruling after initiation of this lawsuit reversing the Council's decision “solely on technical grounds.” (Id. at ¶ 43.) Defendant Solid Platforms has refused to call Barger back to work any time after his October 25, 2015 layoff, and Local 2, “with only brief and rare exceptions, ” also refuses to offer work to Barger. (Id. at ¶ 44.)

         In November 2015, Barger obtained a new job with ESS, which assigned him to work at Zimmer. (Id. at PageID 365, ¶ 47.) Prior to arriving to work the first day, Barger told a representative of Solid Platforms that he would be at Zimmer the following Saturday. (Id. at ¶ 49.) Yet, when he arrived for work on November 21, 2015, identified himself as an employee of ESS, and sought admission to the site to perform his work, a representative of Dynegy refused to allow him to enter. (Id. at ¶ 50.) On November 23 or 24, 2015, Barger told Lind about his being denied entry to Zimmer, and Lind confirmed he was not allowed on the site “because of Solid Platforms.” (Id. at ¶ 51.) In late 2016, Lind told Barger that he was still barred from Zimmer “because of Solid Platforms.” (Id. at ¶ 53.)

         In November 2015, Nealan was working for Solid Platforms at Zimmer and had been regularly offered employment by the Union through Local 2. (Id. at PageID 366, ¶ 56-58.) For approximately the past eight to nine years, the majority of the work offered to her had been with Solid Platforms. (Id. at ¶ 57.) After Barger reported the alleged corruption, Solid Platforms “laid her off from her position at Zimmer, and it has never recalled her to work since.” (Id. at ¶ 58.) Local 2 has offered her little work since November 2015. (Id. at ¶ 59.) On April 24, 2017, Nealan was offered work for Solid Platforms for the first time since November 2015, but when she arrived for orientation, she was told by a Solid Platforms representative that she could not go to work because she was on a “do not hire list.” (Id. at ¶ 61.) Upon information and belief, both Nealan and Barger were placed on “do not hire” lists by Local 2, and as a result, have received almost no work since November 2015. (Id. at PageID 366-37, ¶ 61-62.)

         B. Procedural History

         On February 3, 2017, Barger initiated this action against the Union, IKORCC, Solid Platforms, and Dynegy. (Doc. 1.) The Court has since granted Plaintiff(s) leave to amend the Complaint three times.[3] In their current Third Amended Complaint, Plaintiffs allege the following causes of action:

(1) Violation of Barger's right to free speech under Section 101(a)(2) of the Labor Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. § 411(a)(2) by Local 2, the Union, and IKORCC;
(2) Conspiracy to retaliate against Barger for the exercise of his free speech rights in violation of the LMRDA by Local 2, the Union, and IKORCC;
(3) Tortious interference with Barger's employment relationship with Solid Platforms by Local 2, the Union, and IKORCC;
(4) Tortious interference with Barger's employment relationship with ESS and other prospective employers by Dynegy, the Union, IKORCC, Local 2, and Solid Platforms;
(5) Wrongful discharge in violation of Ohio public policy by Solid Platforms against Barger for its failure to employ him and refusing to recall him to work because he exposed theft, falsification of records, fraud, and padding of hours;
(6) Violation of Nealan's rights under Section 101(a)(5) of the LMRDA by Local 2;
(7) Tortious interference with Nealan's employment relationship with Solid Platforms and prospective employers by Local 2; and
(8) Violation of Nealan's rights under the LMRDA by retaliating against her for her brother's exercise of rights under the LMRDA by Local 2.

         On August 1, 2017, Dynegy, the Union, Solid Platforms, and IKORCC each filed Motions to Dismiss. (Docs. 43, 45-47.) On October 20, 2017, Plaintiffs filed a Motion for Leave to File Their Fourth Amended Complaint For the Purpose of Withdrawing Two Claims. (Doc. 65.) In support of their Motion, Plaintiffs stated that they were mindful of the Court's directive that no further amendment to the Complaint would be granted, but since that time, had determined that their Sixth and Eight causes of action should not go forward.[4] That same day, Local 2 filed a Motion for Extension of Time to Move or Plead (Doc. 66). Rather than disrupt the briefing schedule and mooting the previously-filed Motions to Dismiss, the Court deferred ruling on Plaintiffs' Motion until all responsive pleadings were filed. (November 28, 2017 Dkt. Entry.) On December 6, 2017, Local 2 filed a Motion to Dismiss. (Doc. 68.) All motions are now ripe.

         II. LEGAL STANDARD

         A. Rule 12(b)(6)

         Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for “failure to state a claim upon which relief can be granted.” To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must comply with the pleading requirements of Federal Rule of Civil Procedure 8(a), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). When considering a motion to dismiss pursuant to Rule 12(b)(6), the Court must construe the complaint in a light most favorable to the plaintiff and accept the factual allegations as true. Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). The Court “need not, however, accept conclusory allegations or conclusions of law dressed up as facts.” Erie Cty., Ohio v. Morton Salt, Inc., 702 F.3d 860, 867 (6th Cir. 2012).

         III. ANALYSIS

         All five Defendants move to dismiss the claims against them. In so doing, the Defendants raise many similar and overlapping arguments. The Court will first consider the Union's Motion to Dismiss, followed by the motions filed by IKORCC, Local 2, Solid Platforms, and Dynegy. For the reasons that follow, the dismissal motions filed by the Union, IKORCC, Local 2, and Dynegy will be granted in part and denied in part, and the dismissal motion filed by Solid Platforms will be granted.

         A. Union's Motion to Dismiss (Doc. 45)[5]

         Barger alleges four claims against the Union: violation of the LMRDA, conspiracy to violate the LMRDA, tortious interference with his employment relationship with Solid Platforms, and tortious interference with his employment relationship with ESS and other employers. The Union argues that all four of the claims asserted by Barger against it should be dismissed. The Union raises several arguments in support of its motion to dismiss: the agency allegations and ratification theories fail; the “speech” Barger engaged in is not protected speech under the LMRDA; and the conspiracy and tortious interference claims should be dismissed for failure to sufficiently plead supporting facts. For the reasons that follow, the Union's motion will be granted in part and denied in part.

         1. Agency Allegations and Ratification

         The Union argues that Plaintiffs do not plead allegations that establish an agency relationship or ratification of the underlying alleged misconduct, which is necessary to establish liability by the Union. See Carbon Fuel Co. v. United Mine Workers, 444 U.S. 212 (1979). Plaintiffs respond that they have pled facts to establish that the IKORCC and Local 2 acted as the Union's agents when they committed acts of retaliation. In support, Plaintiffs cite the following allegations:

. Dave Meier acted as a business agent for the Union. (Doc. 41 at PageID 362.)
. After Barger told Meier that if the Union was going to engage in this type of behavior, he did not want to be a part of it, Meier filed charges against Barger with the IKORCC. (Id.)
. IKORCC is an “affiliate and agent” of the Union and IKORCC “is responsible for adjudicating charges of the kind filed by Meier against [Barger].” (Id. at PageID 363.)

         According to Plaintiffs, these allegations “create at least a reasonable inference of an agency relationship between these Defendants.” (Doc. 52 at PageID 538.) The Court finds that at this early stage, and in deference to the liberal pleading standard of Rule 8, the facts pled are sufficient to allege that the IKORCC was an agent of the Union. However, it is not a particularly strong allegation and more facts will need to be developed to support the agency allegations - an issue the Court anticipates it will take up at summary judgment as more facts are developed.

         However, the Court agrees with the Union that its failure to act on his appeal (i.e., delayed ruling) and ultimate granting of his appeal does not support ratification. Small v. International Bhd. of Elec. Workers,626 F.Supp. 96, 99 (S.D. Ohio 1985) (declining to impose liability on the international union for alleged ignoring and failing to respond to grievances and complaints.) See also Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am.,927 F.2d 1283, 1289 (3d. Cir. 1991) (“Mere constructive knowledge of possible illegal activity on the local level is not sufficient to impose a duty to intervene on the International Union.”); Cloke v. Adams, No. 1:09-cv-660, 2010 WL 3075183, at *3 (S.D. Ohio May 27, 2010), report and recommendation adopted, 2010 WL 3075180 (Aug. 4, 2010) (finding that union had no duty to intervene in the alleged misconduct directed at the plaintiff at the subordinate body level, i.e., a scheme to suppress dissent and deny his free speech rights). Here, Plaintiffs allege that Dave Meier, a Union representative, filed charges against Barger with IKORCC after he complained about union members falsifying hours. (Id. at PageID 362.) Plaintiffs claim the Union “ratified and approved” the actions of the IKORCC, an “affiliate and agent of the Union” by “wrongfully denying all [Barger's] grievances, and by deliberately failing to act on his appeal of the Council's ...


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