Opinion
CIVIL ACTION FILE NO. l:01-CV-2955-TWT
July 18, 2003
ORDER
This is an action seeking damages under the National Labor Relations Act and the Labor Management Relations Act. It is before the Court on the Defendant Whitehead Construction Company's Motion for Summary Judgment [Doc. 29], Defendant IBEW Local 613's Motion for Summary Judgment [Doc. 31] and Motion to Strike Plaintiff's Statement of Material Facts [Doc. 49], and Defendant Holder Construction Company's Motion for Summary Judgment [Doc. 35]. For the reasons set forth below, the Court grants the motions for summary judgment.
I. BACKGROUND
The Plaintiff is a journeyman electrician and a member of International Brotherhood of Electrical Workers, Local Union 613 ("IBEW"). This suit arises out of plaintiff's employment as an electrician with Whitehead Electric Company ("Whitehead") at a job site on Jefferson Street in Atlanta, Georgia. Pursuant to the union's referral policy, the Plaintiff was referred to work for Whitehead on this renovation project from February 7, 2001 to April 27, 2001. (Complaint ¶¶ 5, 11, and 12.) On that job, Whitehead was a subcontractor to Defendant Holder Construction Company ("Holder"), the general contractor. (Kollman Dep. at 15, 284-285.)IBEW and Whitehead were parties to a collective bargaining agreement that included a grievance procedure. The agreement required the union to file a grievance within fifteen calendar days of the occurrence of the event in question. (Mears Dep. at 42-44, 61-63, 85 and 89.) Holder was not a party to the collective bargaining agreement between Whitehead and IBEW. (Kollman Dep. at 108.) Whitehead terminated plaintiff's employment on April 27, 2001. On the same date, Whitehead laid off a number of electricians due to lack of work, and it is possible the Plaintiff would have been laid off had he not been terminated. (Kollman Dep. at 77.) Whitehead terminated the plaintiff's employment because Holder told Whitehead to remove the Plaintiff from the project because he was observed on at least two occasions wasting time and talking rather than working. (Kollman Dep. at 77, 118-119.) The subcontract between Holder and Whitehead specifically authorized Holder to establish and maintain standards for the job site, including the power to have Whitehead, the subcontractor, remove workers who did not meet Holder's standards. (Rager Dep. at 6-9, Ex. B Holder-Whitehead subcontract ¶ 21.) Plaintiff alleges that Holder tortiously interfered with his employment relationship with Whitehead when Holder requested Kollman's removal from the construction project. (Amended Complaint ¶¶ 40, 43, 77-79.)
After his termination, Plaintiff talked with Charles Allan Mears, an IBEW assistant business manager, about his termination. He told Mr. Mears that he wanted to file a grievance. At about the same time, Plaintiff placed his name on the IBEW out-of-work list for referral to another job. (Kollman Dep. at 80, 83-87; Mears Dep. at 116.) Mr. Mears investigated the plaintiff's complaint, and told him that Holder ordered Whitehead to terminate the plaintiff's employment. (Kollman Dep. at 107-109.) The Plaintiff knew that Whitehead verbally reprimanded him for talking on the job with another electrician, but the Plaintiff contended that he was terminated due to his workers' compensation claims. (Kollman Dep. at 118.) Mr. Mears advised the Plaintiff that the collective bargaining agreement does not address workers' compensation issues and that the employer is not required to provide light duty work for an electrician. (Mears Dep. at 85, 87, 89, 94.)
Ultimately, IBEW did file a grievance regarding the plaintiff's termination, but not within the required fifteen days. In spite of this, Mr. Mears tried to convince management to accept the plaintiff's grievance. (Mears Dep. at 195.) In addition, IBEW representatives met with Whitehead management in an effort to convince Whitehead to resolve the plaintiff's workers' compensation claim. (Mears Dep. at 145-154; Kollman Dep. at 122.) IBEW thoroughly investigated Plaintiff's grievance. At the plaintiff's request, the IBEW Fifth District reviewed IBEW Local 613's investigation of the plaintiff's grievance and deferred to the grievance procedure. (Mears Dep. at 174-175.) Plaintiff claims that IBEW breached its duty to fairly represent the Plaintiff and also alleges that Defendant Whitehead breached the collective bargaining agreement.
Plaintiff claims that he suffered a hernia while working on April 5, 2001. He obtained medical attention for the injury at Piedmont Hospital. (Amended Complaint ¶ 15.) Plaintiff sought to have his medical expenses covered by workers' compensation. He contends, that Defendant Whitehead intentionally frustrated those efforts by: (i) agreeing that he could seek treatment at Piedmont Hospital and then telling him his expenses would not be covered because Piedmont was not on the approved list of medical providers (Kollman Dep. at 67-68); (ii) telling him he was not entitled to workers' compensation because he failed to get a drug test (Kollman Dep. at 124-125); (iii) asking him to complete three different accident reports and then telling him he was not entitled to workers' compensation because he had submitted too many reports. (Kollman Dep. at 33-38, 124-125.) Plaintiff also alleges that Defendant Whitehead assigned him work that exceeded his light duty restrictions (which aggravated his hernia), and terminated his employment because he was pursuing a workers' compensation claim. (Kollman Dep. at 30-31, 47-48, 96.)
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court should view the evidence and any inferences that may be drawn in the light most favorable to the nonmovant. Adickes v. S.H. Kress Co., 398 U.S. 144, 158-159 (1970). The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of material fact.Celotex Corp. v. Catrett. 477 U.S. 317, 323-24 (1986). The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 257 (1986).
III. DISCUSSION
A. Duty of Fair Representation
In Counts I and II of the Amended Complaint, Plaintiff alleges both a breach of the duty of fair representation by IBEW and a breach of the collective bargaining agreement by Whitehead. In such a hybrid action under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, the two claims are interdependent. To prevail against the employer, the employee must prove not only that the employer breached the collective bargaining agreement, but also that the union violated its duty of fair representation. Without such a breach of duty, the employee is bound by the outcome of the grievance procedure.Vaca v. Sipes. 386 U.S. 171, 185-86 (1967).
Although there is no explicit statutory requirement setting forth a union's duty of fair representation, "it is thus a federal obligation which has been judicially fashioned from national labor statutes."Abrams v. Carrier Corp., 434 F.2d 1234, 1251 (2nd Cir. 1970). The courts developed the duty of fair representation as a corollary to a union's status as the exclusive representative for employees in a bargaining unit under Section 9(a) of the National Labor Relations Act. It was first articulated in Steele v. Louisville N.R. Co., 323 U.S. 192 (1944), and then in Ford Motor Co. v. Huffman, 345 U.S. 330 (1953). The Supreme Court later defined the duty as follows:
The exclusive agent's statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination towards any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.Vaca. 386 U.S. at 177. A breach of the statutory duty occurs when the union's representation is "arbitrary, discriminatory, or in bad faith." id. at 190. A union's activities are arbitrary, only if, in light of the factual legal landscape at the time of the union's actions, the union's behavior is so far outside a "wide range of reasonableness" as to be irrational. Air Line Pilots Ass'n. Intern, v. O' Neill. 499 U.S. 65, 66(1991).
The inquiry in a fair representation case is whether the union's acts or omissions show "hostile discrimination" based on "irrelevant and invidious" considerations, or whether they show good faith within a "wide range of reasonableness" granted to a bargaining agent. Ford Motor Co. v. Huffman. 345 U.S. 330 (1953). As long as the union acted "honestly, in good faith, without hostility or arbitrary discrimination," the union does not breach its duty of fair representation. Humphrey v. Moore. 375 U.S. 335 (1964). In the present action, the Plaintiff claims that the union breached its duty of fair representation by failing to investigate the circumstances of his discharge and by failing to file a timely grievance.
The Eleventh Circuit has held that a union is liable only if the union arbitrarily ignored a meritorious grievance or processed it in a perfunctory fashion:
Cases are uniform in holding that neither negligence on the part of the union nor a mistake in judgment is sufficient to support a claim that the union acted in an arbitrary and perfunctory manner. The union is accorded a wide range of reasonableness in the exercise of its discretion, and although it is circumscribed by a duty to act with complete good faith and honesty of purpose, the employee's burden remains a substantial one. Nothing less than a demonstration that the union acted with reckless disregard for the employee's rights or was grossly deficient in its conduct will suffice to establish such a claim. In this context, we believe that a claim that a union acted perfunctorily requires a demonstration that the union ignored the grievance, inexplicably failed to take some required step, or gave the grievance merely cursory attention.Harris v. Schwerman Trucking Co., 668 F.2d 1204, 1206-7(11th Cir. 1982) (citations and quotation marks omitted). Perfunctory conduct has been described as, "to do it merely to get through or rid of the matter; as a matter of routine and for form's sake only, without interest or zeal." Id. at 1207, n. 3 (quoting Mitchell v. Hercules Inc., 410 F. Supp. 560, 568 (S.D. Ga. 1976)).
Mere negligence does not constitute a breach of the duty of fair representation. Le'Mon v. N.L.R.B., 952 F.2d 1203 (10th Cir. 1991). Furthermore, "the union is to be accorded a wide range of discretion in dealing with representation matters, and its actions are to be judged under a standard of reasonableness."Papavaritis v. Communication Workers of America. AFL-CIQ, 772 F. Supp. 604, 607 (S.D. Fla. 1991). "The mere fact that [the] union was ineffective or did not zealously prosecute the plaintiff's claim is insufficient, without more, to support a fair representation claim."Id.
Plaintiff argues that the union failed to timely submit the grievance for his termination, and the union did not conduct an adequate investigation. Plaintiff contends that the union made no effort to investigate his grievance prior to the filing deadline of May 12, 2001, and therefore effectively ignored his grievance. Plaintiff also asserts that the only reason the union did finally file plaintiff's complaint was because they discovered the Plaintiff had a legitimate complaint, but by then it was untimely.
The Court finds that the union's representation was not arbitrary or done in bad faith. The Plaintiff has not produced any evidence of bad faith or discriminatory conduct. In order to show bad faith, there must be proof of "fraud, deceitful action, or dishonest conduct" by the union.Schmidt v. IBEW. Local 949. 980 F.2d 1167, 1170 (8th Cir. 1992). Further, the Plaintiff has not shown that the union's conduct was arbitrary. In this instance, Mr. Mears, the union representative, investigated the plaintiff's allegations and told the Plaintiff that his termination was not grievable because the general contractor told Whitehead to remove the Plaintiff from the job site. The Plaintiff contended that he was fired because he tried to file a workers' compensation claim. The union's investigation, however, determined that he was terminated due to Holder's request. As part of the investigation, Mr. Mears spoke with the union job steward who told him that the Plaintiff had been warned about his behavior and Holder told Whitehead to remove the Plaintiff from the job. He also talked with David Kilgo, the Whitehead job superintendent, who told him that Whitehead had no other job for the Plaintiff at another location. The union's conduct was not arbitrary just because the grievance procedure did not produce a favorable outcome for the Plaintiff.
Although the workers' compensation claim is a separate matter and subject to administrative procedures under Georgia law rather the collective bargaining agreement, IBEW representatives met with Whitehead management in an attempt to resolve the plaintiff's workers' compensation claims. When it was clear that the Plaintiff could not resolve his workers' compensation claim, then the Plaintiff insisted on filing the grievance. The decision not to file the grievance before that time was based on the union's investigation and the belief that the union would not succeed in the grievance. Later, the union tried to convince management to accept the plaintiff's grievance. The union was not obligated to pursue the plaintiff's grievance when the union determined based on its review and investigation the grievance lacked merit. Galindo v. Stoody Co., 793 F.2d 1502 (9th Cir. 1986). Ultimately, NEC A, the employees association, did not accept the grievance because it was untimely. The IBEW Fifth District representative, at the plaintiff's request, interviewed him, reviewed the grievance proceedings, and found no problems.
The union's conduct did not amount to behavior that is "so far outside a wide range of reasonableness as to be irrational." Air Line Pilots. 499 U.S. at 67. The mere fact that the union was ineffective or did not zealously prosecute the plaintiff's claim is insufficient, without more, to support a fair representation claim. The facts of the present case do not demonstrate such conduct on the part of the union. Thus, the Court grants Defendant IBEW's motion for summary judgment and Whitehead's motion for summary judgment as to the plaintiff's claim for breach of the collective bargaining agreement. Furthermore, the Court denies Defendant IBEW's motion to strike plaintiff's statement of facts as moot.
B. Intentional Infliction of Emotional Distress and Fraud
Plaintiff has asserted claims against Whitehead for intentional infliction of emotional distress and fraud based on his termination, Whitehead's refusal to pay his bill from Piedmont Hospital, its handling of the accident report forms and allegedly telling him his injury would not be compensable under workers' compensation, and its alleged aggravation of his injury. Defendant moves for summary judgment on these claims under the theory that these claims are barred by the exclusive remedy provision of the Georgia Workers' Compensation Act. The Act provides that "[t]he rights and remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee. . . ." O.C.G.A. § 34-9-11. This provision provides immunity from suit for employers whose employees' injuries are covered by the Act.
The Georgia courts have long held that in order to be covered by the Act, an injury must both "arise out of" employment and occur "in the course of" employment. Garrett v. K-Mart Corp., 197 Ga. App. 374 (1990). "An injury arises in the course of employment, . . . when it occurs within the period of the employment, at a place where the employee may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto." Murphy v. ARA Services. Inc., 164 Ga. App. 859 (1982). Thus, it is the "time, place and circumstances under which the injury takes place," which are critical to the analysis.Murphy, 164 Ga. App. at 861.
Plaintiff bases his claims of fraud on Whitehead's allegedly telling Plaintiff his workers' compensation claim would be denied because he failed to take a drug test, plaintiff's termination from Whitehead, Whitehead's refusal to pay plaintiff's bill from Piedmont Hospital, and Whitehead employees' allegedly telling Plaintiff that his injury would not be covered under workers' compensation because he had filled out too many accident reports. (Kollman Dep. at 67-68, 124-125.) Even accepting plaintiff's allegations as true, the alleged fraud is barred by the exclusivity provisions of the Act because these actions arose "out of" and "in the course of" plaintiff's employment. Murphy, 164 Ga. App. at 861. In the instant case, all of the alleged misrepresentations by Whitehead employees took place at the Jefferson Street project site, during working hours and after inquiry by Plaintiff into his workers' compensation claim and submittal of his Piedmont Hospital bill for payment by Whitehead. The claim for fraud based on these alleged misrepresentations is thus precluded by the tort immunity provided to employers in O.C.G.A. § 34-9-11, as this claim is within the purview of the Act.
Plaintiff's claims of intentional infliction of emotional distress are based on plaintiff's termination from Whitehead, Whitehead's refusal to pay plaintiff's bill from Piedmont Hospital, Whitehead's handling of the accident report forms and allegedly telling Plaintiff that his injury would not be compensable under workers' compensation, and Whitehead's alleged aggravation of plaintiff's alleged injury. (Kollman Dep. at 47-48, 67-68, 124-125, 175-185.) In this case, even assuming the facts as Plaintiff alleges them, plaintiff's contentions as to the cause of his alleged emotional distress are all covered by the exclusivity provision of the Act.
As discussed above, Georgia courts have consistently held that where the Act provides a remedy for an injury arising "out of" and "in the course of" employment, the courts will not create a separate remedy outside the Act. Bright v. Nimmo, 253 Ga. 378 (1984). Here, all the basis for plaintiff's intentional infliction of emotional distress have remedies provided in the Act. plaintiff's claim that Whitehead intentionally delayed payments, required Plaintiff to fill out multiple accident reports, and refused to pay the Piedmont Hospital bill all have remedies within the Act. Under Bright, where such remedies are provided under the Act, the exclusive remedy provision bars separate causes of action by a plaintiff. Given that all of Plaintiff s bases for emotional distress are addressed by remedial provision in the Act, the Court will not create a remedy for his claims outside the Act.
In Bright, the court held that there was no cause of action outside that provided by the Act for intentionally delayed payments to an employee by the employer because O.C.G.A. § 34-9-22 l(e) provided a remedy.
Furthermore, even if the express remedial provisions were not provided by the Act, when applied to the criteria laid out in Murphy, it is clear that the actions of Whitehead employees that Plaintiff claims constituted intentional infliction of emotional distress "arose out of and "in the course of employment and are thus barred by the Act. Murphy, 164 Ga. App. at 861. All of the actions alleged by Plaintiff leading to his claimed emotional distress occurred at the Jefferson Street site, occurred during Whitehead and plaintiff's normal working hours and arose out of activities connected with or incidental to plaintiff's employment at Whitehead. (Kollman Dep. at 47-48, 67-68, 124-125, 175-185.)
In the case of claims of intentional infliction of emotional distress, Georgia courts have consistently interpreted the exclusivity provision of the Act so as to bar such claims when the emotional injury is connected with a physical injury arising "out of and "in the course of employment, such as plaintiff's alleged hernia here. In Zaytzeff v. Safety-Kleen Corp., 222 Ga. App. 48 (1996), the court held the plaintiff could not pursue an independent claim for psychological injuries related to his alleged exposure to toxic chemicals because it was "inextricably linked" to the workers' compensation claim for the employee's physical injury, even though plaintiff showed no manifestation of his alleged physical injury. Id. at 52; see also Betts v. Medeross Imaging Center. Inc., 246 Ga. App. 873 (2000). Only where cases have not involved any physical injury whatsoever have courts found claims of intentional infliction of emotional distress to be outside the purview of the Act.Oliver v. Wal-Mart Stores. Inc., 209 Ga. App. 703 (1993).
Here, plaintiff's intentional infliction of emotional distress claim is barred because all of the facts he relies on to support his claim arise out of a physical injury, plaintiff's alleged hernia, which he allegedly suffered while working on the job. In Haysman v. Food Lion. Inc., 893 F. Supp. 1092 (S.D. Ga. 1995), a case factually similar to the one at hand, the court found the plaintiff's claim for intentional infliction of emotional distress arising from being assigned work consisting of more than the "light duty" work required by his doctors, was barred by the exclusivity provisions of the Act. Id. at 1098, 1111. Based on the above precedent, the Court finds that as a matter of law that plaintiff's claim of intentional infliction of emotional distress is barred by the Act. Thus, Defendant Whitehead's motion for summary judgment on this issue is granted.
C. Tortious Interference With Employment
Plaintiff claims that Holder tortiously interfered with his employment. (Amended Complaint ¶¶ 11, 40, 43, 77-79). Plaintiff was employed by subcontractor Whitehead from approximately February 7, 2001 until April 27, 2001. (Kollman Dep. at 12.) Plaintiff acknowledges that Holder was the general contractor over Whitehead on the project where he was employed. (Kollman Dep. at 194.)
On or around April 25, Holder's superintendent, C.J. Sage, saw Plaintiff talking instead of working. (Kollman Dep. at 221-222, 230.) Holder spoke with Whitehead about the incident and Plaintiff was subsequently warned for talking and wasting time on the job. (Kollman Dep. at 221-222, 230.) Plaintiff admits that on the day prior to his termination, April 26, he approached Holder's assistant superintendent, Corbin Walther, because he wanted to talk about his warning, and that he "BS'd for maybe five minutes" asking Walther about C.J. Sage's whereabouts. (Kollman Dep. at 229-230.) After the discussion with Walther, the assistant superintendent also complained to Whitehead about Plaintiff wasting time, and, according to Walther he told Whitehead that "I told . . . Whitehead Electric if Mr. [Kollman] would not work, to get him off the job." (Kollman Dep. at 251; Walther Dep. at 22, 34-36, Ex. A Walther June 14 letter.)
In order to establish a claim of tortious interference with employment, the Plaintiff must show each of the following: "that the defendant (1) acted improperly and without privilege; (2) acted purposely and with malice with the intent to injure; (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff; and (4) caused the plaintiff financial injury." Britt/Paulk Ins. Agency. Inc. v. Vandroff Ins. Agency. Inc., 952 F. Supp. 1575, 1583 (N.D. Ga. 1996) (citations omitted).
Georgia law requires that a plaintiff show that the defendant is a "stranger" to the business and contractual relations at issue in order to prevail on tortious interference with business and contractual relations claims.Britt/Paulk Ins. Agency. Inc., 952 F. Supp. at 1584. In fact, this is an essential element of a tortious interference claim. Id . In the context of a tortious interference claim, the term "stranger" has been interpreted broadly by Georgia courts. Georgia courts have held that a defendant is not a "stranger" to a contract or business relationship when: (1) the defendant is an essential entity to the purported injured relation; (2) the allegedly injured relations are inextricably a part of or dependent upon the defendant's contractual or business relations; (3) the defendent would benefit economically from the alleged injured relations; or (4) both the defendant and the plaintiff are parties to a comprehensive interwoven set of contracts or relations. Id.
Defendant argues that Plaintiff cannot establish that the Defendant is a "stranger" to the contractual and business relations. The Court agrees. The first element of his tortious interference claim that the Plaintiff must show is that Holder acted "improperly and without privilege." Id. However, the undisputed facts prove that under Holder's subcontract with Whitehead, without which Plaintiff would never have even had any employment on Holder's construction project, Holder had the specific contractual right to request removal of a subcontractor employee who was wasting time talking and complaining. When a defendant, such as Holder, has "a legitimate interest in either the contract or a party to the contract, the defendant is not a stranger to the contract, although the defendant is a non-signor [to the] particular contract." Disaster Services. Inc. v. ERC Partnership. 228 Ga. App. 739 (1997) (citations omitted); see also Renden, Inc. v. Liberty Real Estate Ltd. Partnership III. 213 Ga. App. 333 (1994) (no tortious interference claim regarding plaintiff's sublease where defendant lessor "was an essential entity in the prospective lessor/lessee/sublessee relationship"); Jefferson-Pilot Communications Co. v. Phoenix City Broadcasting. Ltd, of Atlanta. 205 Ga. App. 57 (1992).
Finally, plaintiff's employment relationship was interwoven with Holder and Whitehead's subcontract. Here, Holder and Kollman each had business relationships with Whitehead and these relationships were "interwoven." In fact, Whitehead's employer/employee relationship with Kollman was necessary in order to perform Whitehead's subcontract with Holder, and without such a subcontract, Whitehead would not need to form, or be able to continue, any such employment relationship on the construction project. Thus, both Holder and Plaintiff were parties to interwoven contractual arrangements. For all these reasons, Holder was not a stranger to plaintiff's employment relationship and did not act "improperly and without privilege." Therefore, Holder cannot be liable for the alleged tortious interference with his employment. Because Plaintiff cannot make out the first element required for a tortious interference claim, summary judgment is granted in favor of Defendant Holder.
IV. CONCLUSION
For the reasons set forth above, the Court GRANTS Defendant Whitehead Construction Company's Motion for Summary Judgment [Doc. 29], GRANTS Defendant IBEW Local 613's Motion for Summary Judgment [Doc. 31] and DENIES as moot IBEW's Motion to Strike plaintiff's Statement of Material Facts [Doc. 49] and GRANTS Defendant Holder Construction Company's Motion for Summary Judgment [Doc. 35].
SO ORDERED,