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Barger v. United Brotherhood of Carpenters and Joiners of America

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

August 6, 2019

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


          Susan J. Dlott Judge.

         This matter is before the Court on motions for summary judgment filed by Indiana/Kentucky/Ohio Regional Council of Carpenters (“IKORCC”) (Doc. 111), Local Union 2, United Brotherhood of Carpenters and Joiners of America (“Local 2”) (Doc. 112), United Brotherhood of Carpenters and Joiners of America (“UBC”) (Doc. 113), and Dynegy Inc. (“Dynegy”) (Doc. 104). For the reasons that follow, Defendants' Motions will be GRANTED.

         I. Facts[1]

         A. Barger's Union and Work History

         Plaintiff Jonathan Barger has been a member of Defendant Local 2 since 1999. Local 2 is a local labor organization headquartered in Monroe, Ohio representing individuals employed in the carpentry and related industries in Southwest Ohio. Local 2 is an affiliated local union of the IKORCC, which itself is an affiliated regional council of the UBC. The IKORCC is a regional labor organization which represents individuals employed in the carpentry and related industries in Indiana, Kentucky, and Ohio, whereas the UBC is an international labor organization representing employees working in the carpentry and related trades in the United States and Canada.

         Plaintiff began working as a carpenter for Solid Platforms Industries[2] (“SPI”) in approximately 2007 or 2008. SPI, a construction company, is a signatory of the IKORCC's Carpenters Agreement (the “Southwest Ohio CBA”). SPI performs scaffolding work and some installation for its customer, Dynegy, Inc., a company which owned and operated the Zimmer Power Station (“Zimmer Station”) in Moscow, Ohio.[3] Zimmer Station is an independent power producer that sells its energy and capacity into a regional transmission organization.[4]

         Plaintiff worked intermittently for SPI with periods of layoffs and employment between 2007 and 2015. While employed at SPI, Plaintiff worked at multiple job sites, including at Zimmer Station between 2014 and 2015. While working at Zimmer Station, Plaintiff reported to three SPI supervisors: General Foreman Art Galea, Project Manager Kipp Kahlenbeck, and Safety Manager/Area Manager Daniel Jason Hall. On October 25, 2015, SPI laid off Plaintiff along with some other employees who were working at Dynegy's Zimmer Station.

         On October 27, 2015, Barger called Joe Lind, Dynegy's Maintenance Manager at Zimmer Station who is responsible for certain outside vendors, including SPI. During that call, Barger asked Lind for a job with Dynegy, and Lind responded that they were not taking applications. (Barger Dep., Doc. 97 at PageID 912.) Barger responded that if he could pay his own way, he would like to have a job, and Lind asked, “How's that?” (Id.) Barger told Lind that “Solid Platforms are stealing money from you, ” by which he meant falsifying hours. (Id. at 912- 13.) Barger brought up his allegation of hours falsification as a way to save Dynegy enough money to pay for his employment. (Id. at 913.)

         Shortly after the phone call with Barger, Lind decided to ban Plaintiff from Zimmer Station, although Barger was not told this at the time. On October 28, 2015, Lind instructed the maintenance facility supervisor to place Plaintiff on Zimmer Station's banned from site list. Lind attests that he did not ban Barger from the site because he reported alleged overbilling by SPI. (Lind Decl., Doc. 103-1 at PageID 1837.)

         The same day that Barger initially spoke to Lind, October 27, 2015, Barger also called Dave Meier, an IKORCC business agent and member of Local 2. Barger told Meier that he had not received his paycheck, and Meier responded that he would look into it. Barger also told Meier that he spoke to Lind and told him that Kahlenbeck, Hall, and Galea were “ghost payrolling” at Dynegy. That same day, Meier called Galea to ask about Barger's paycheck.

         Meier testified that after their initial call, he and Barger spoke every day until October 30, 2015 when Meier notified Barger his final paycheck from SPI was in the mail. Two notable conversations occurred during this timeframe. Meier initiated a call with Barger with senior service representative, Jeff Gressler, listening on the line. (Meier Dep., Doc. 101 at PageID 1722.) Meier asked Gressler to listen in on the call because he was contemplating filing a charge against Barger and wanted a witness. (Id. at 1723-24.) With Gressler listening on the line, Meier called Barger and asked if it was true he went to Lind. (Id.) Barger confirmed doing so, and Meier asked him “if he was aware of potential consequences to brother and sister members.” (Id. at 1722-23.) According to Meier, Barger said he was aware of any consequences that could have occurred, but it would be worth it to get even with Galea, Kahlenbeck, and Hall because “he was sick of their shit.” (Id. at 1723.)

         During another conversation, Barger called Meier to ask about his paycheck. He referenced the three union members he believed were ghost payrolling and stated that “if that's the kind of guys that you want in your union then, you know, I don't want to be a part of it, ” and stated that he would be taking a nonunion job. (Id. at 1726.)

         B. Meier's Charge Against Barger and Barger's Subsequent Grievances

         On October 30, 2015, Meier filed a charge with the IKORCC against Barger for violation of Section 51(A)(1) and 51(A)(12) of the UBC Constitution. (Barger Dep, Ex. 30, Doc. 97-30 at PageID 1317-18.) In his description of the Charge, Meier stated:

On October 25, 2015 John Barger went to Joe Lind a representative for Dynegy at the Zimmer Power Plant with the full intensions of slandering Art Galea, Jason Hall, and Kipp Kahnenbeck (all members) as well as Solid Platforms with the hope of having all of them removed from all Dynegy Plant. On October 29, 2015 John stated that he was well aware of the repercussions that could occur to all Brothers and Sisters members working in Dynegy Plants, “but to get them three it would be worth it, I am sick of their shit”.
On October 30, 2015 John called me again to tell me that he would be going to work non-union for Sunbelt and that they would be replacing Solid Platforms at the Zimmer Power Plant by December. Sunbelt asked John about his union ties and John said that “he was done with the union”
I David Meier am charging Jonathan Barger with Causing Dissension section 5 (A) (1) and violating the Obligation of the U.B.C. section 51 (A) (12) (that I will use every honorable means to procure employment for Brother and Sister Members) (I pledge myself to be respectful in words and action and charitable in judgement of Brother and Sister members)[5]

(Id. at 1318.) According to Meier, it was not Barger's statements to Lind that caused him to file the charges, but the fact that Barger “wouldn't let it go” and continued to “attack” the three union members. (Meier Dep., Doc. 101 at PageID 1773-74.)

         The IKORCC trial committee held a trial on May 11, 2016 and recommended a verdict of upholding the charge and fining Barger $5, 000. The delegates of the IKORCC adopted the trial committee's recommendation following Barger's addressing the trial committee's report and recommendation at an IKORCC delegates meeting. The UBC was not involved in processing the disciplinary charges at the affiliate level.

         Barger filed a grievance on May 11, 2016, but the UBC rejected it on May 16, 2016 as being untimely and outside of the thirty-day window from the date the grievance occurred. (Doc. 97-33.) Barger filed another grievance dated May 11, 2016 alleging that he was improperly not being referred out to work by Meier. The UBC investigated the allegation and denied the grievance as being without merit.

         On August 8, 2016, Barger filed a grievance with the UBC regarding IKORCC's failure to provide a receipt for his appeal payment. (Doc. 97-23.) He requested that the UBC cease all actions and immediately deliver a copy of the trial proceedings and a receipt for the deposit on his account. He also requested that the time to prepare for his appeal be extended. On August 11, 2016, the UBC denied the grievance, as a receipt had been issued at that point, an appeal was premature as the penalty was stayed. The UBC found no merit to Barger's request to extend his appeal time. (Doc. 97-24.)

         On August 22, 2016, Barger attempted to file an appeal of the IKORCC trial committee's decision to the UBC, but on September 8, 2016, the UBC rejected the appeal for review at that time as being incomplete for failure to include a receipt. (Doc. 97-26 at PageID 1289.) The UBC directed Barger to submit the receipt as soon as possible and deliver a copy of his appeal; once complete, the IKORCC would be notified and given the opportunity to submit an answer. (Id.)

         By letter of September 22, 2016 (but erroneously dated August 22, 2016), Barger perfected his appeal to the appeals committee. (Doc. 97-27.) On October 4, 2016, the UBC considered Barger's appeal filed and requested the IKORCC to file an answer. (Doc. 97-30 at PageID 1302.) On November 17, 2016, Barger filed an additional grievance regarding the IKORCC's failure to file a timely response to his appeal. (Doc. 118-1 at PageID 2112.) On November 21, 2016, the IKORCC filed with the UBC its answer to Barger's appeal. (Doc. 97-30.)

         On May 16, 2017, the UBC granted Barger's appeal and ordered his $50 appeal fee be returned to him. (Doc. 97-29.) The $5, 000 fine levied against Barger was never enforced, as the UBC Constitution provides that any disciplinary action be stayed pending final resolution of the charge.

         C. Barger Performs Work as an Independent Contractor for ESS

         On November 12, 2015, Plaintiff signed an Independent Contractor Agreement with Environmental and Safety Solutions, Inc. (“ESS”), a company that provides safety supervision services as a contractor on construction sites. The Independent Contractor Agreement states:

The Contractor[6] is and shall, at all times during the term of this Agreement, remain an independent contractor to the Company.[7] At no time shall the Contractor be considered to be an employee of the Company, agent of the Company, or anything other than an independent contractor.

(Doc. 97-2 at PageID 1099.) At his deposition, Plaintiff confirmed that he “was an independent contractor” for ESS. (Doc. 97 at PageID 952.) Plaintiff reported ...

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