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McKelvin v. E.J. Brach Corp.

September 2, 1997

MICHAEL MCKELVIN, PLAINTIFF-APPELLANT,

v.

E.J. BRACH CORPORATION AND GROCERY AND FOOD PRODUCTS, PROCESSORS, CANNERIES, FROZEN FOOD PLANTS, COFFEE VENDING, MISCELLANEOUS DRIVERS AND SALESMEN, WAREHOUSEMEN AND RELATED OFFICE EMPLOYEES, UNION LOCAL 738, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 C 4104 Paul E. Plunkett, Judge.

Before EASTERBROOK, MANION and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

ARGUED NOVEMBER 8, 1996

DECIDED SEPTEMBER 2, 1997

Michael McKelvin was employed by candy-maker E.J. Brach Corporation from October 1983 until November 1993, when he was discharged. After being dismissed from his employment, McKelvin sued under section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. sec. 185, alleging that his union, Local 738, International Brotherhood of Teamsters, had breached its duty of fair representation and that Brach had violated the collective bargaining agreement. The district court granted summary judgment in favor of the defendants. McKelvin appeals, and we affirm.

I. Background *fn1

During his last three years at Brach, McKelvin held the position of boiler room utility person, supervised by John Cinfio. In November 1993, McKelvin was on first shift, which ran from 6:30 a.m. until 3:00 p.m. On Friday, November 19, 1993, McKelvin asked Cinfio if he could take the following Monday off in order to accompany his pregnant wife to a 1:00 p.m. appointment with her physician. Cinfio suggested that instead of losing the day, McKelvin come in early so that he could complete his shift before the appointment. As for the details of the modified schedule, McKelvin testified that Cinfio "didn't say no specific time," but merely directed, "Mike whatever you do, just write it down to show the time you worked." (McKelvin Dep. at 43.) On Sunday, McKelvin mistakenly understood from his wife that her appointment was at 8:45 a.m. on Monday instead of 1:00 p.m. With this understanding (although the appointment was indeed scheduled for 1:00 p.m.), McKelvin decided to work the third shift on Sunday night, which ran from 10:30 p.m. until 7:00 a.m. Monday. He did not clear this particular schedule with Cinfio, but kept a record of the work he performed in accordance with his understanding of Cinfio's instruction.

When Cinfio arrived at 6:40 a.m. Monday, however, he was surprised to see McKelvin and asked who had approved the change in shifts. McKelvin said that he thought Cinfio had authorized him to work whenever he wished. McKelvin apologized for the misunderstanding and offered to forfeit his pay for the night. Cinfio told McKelvin to go home, but McKelvin expressed fear about leaving before the end of the shift. McKelvin then heard Cinfio direct him to go see John Klepper, the industrial relations manager. Cinfio does not recall telling McKelvin to go see Klepper, but believes that he asked McKelvin to leave for a second time and that he told McKelvin to call Klepper from home at 10:00 a.m. *fn2 Consistent with his own understanding of the conversation, however, McKelvin did not go home, but went to Klepper's office to await his 7:00 a.m. arrival. When Cinfio saw McKelvin sitting outside of Klepper's office, he again told McKelvin to leave. At that point, McKelvin went to the employee locker room to change his clothes in preparation to go home. Unfortunately, he encountered Cinfio for a third time before taking his leave. Cinfio asked why McKelvin was still in the building, and despite McKelvin's explanation, demanded that McKelvin surrender his identification badge, which was necessary for entrance to the plant. On his way out, McKelvin encountered Klepper in the parking lot. He told Klepper what had transpired, and Klepper asked him what he had done with his identification badge. McKelvin recalls saying that he gave it to Cinfio, but Klepper reported that McKelvin had untruthfully responded that the badge was in his locker.

McKelvin then contacted his union representative, Walter Rhodes, who scheduled a meeting with Cinfio and Klepper for the following day. Rhodes instructed McKelvin not to speak at the meeting but merely to apologize to Cinfio. Still, McKelvin did speak up once or twice to contradict Cinfio's version of events. When Cinfio said that he had asked McKelvin to go home three times, McKelvin stated that he had only heard two requests to leave. At that point, Rhodes told McKelvin that he had been insubordinate by not leaving when so directed. Klepper again asked McKelvin where his identification badge was, and McKelvin told him that he had given it to Cinfio. Klepper accused McKelvin of lying, recounting that McKelvin had originally told him that the badge was in his locker. Klepper then announced that McKelvin was fired.

On November 29, 1993, Rhodes gave McKelvin a termination letter from Brach, which stated that McKelvin had been fired for various rules violations including insubordination. Rhodes instructed McKelvin on filing a grievance form and told him that it must be completed by December 6. He suggested that McKelvin include a letter from the doctor verifying his wife's appointment. On December 5, McKelvin gave Rhodes a three-page document entitled "Formal Complaint," which did not comply with the grievance format. A letter from the doctor was attached but did not indicate the time of the appointment. McKelvin told Rhodes that he had already submitted the complaint to Brach's management. Rhodes then copied the complaint verbatim onto a grievance form so that it could be filed. He told McKelvin to get a new letter from the doctor verifying that the appointment had been at 8:45 a.m., but McKelvin told him that would be dishonest because the appointment had been at 1:00 p.m. Rhodes called the doctor's office himself to learn that the clinic had not opened until 12:30 p.m. on November 22.

In accordance with established procedure, a grievance meeting was held on December 16, 1993, with Klepper, Cinfio, Rhodes and McKelvin in attendance. *fn3 Klepper denied the grievance, and, also consistent with the union's standard procedure, Rhodes sent McKelvin's file to the union's outside counsel for a recommendation about whether the union should seek an arbitration. In a January 3, 1994 letter to Rhodes, union attorney Donald Cohen recommended that arbitration not be pursued. Cohen believed that because McKelvin had been insubordinate and had lied to management the union would not succeed at arbitration. Rhodes informed McKelvin of the union's decision not to arbitrate in a January 6, 1994 letter.

II. Duty of Fair Representation

In order to state a claim against the union for breach of its duty of fair representation, a plaintiff must establish that the union's action was arbitrary, discriminatory, or taken in bad faith. Air Line Pilots v. O'Neill, 499 U.S. 65, 67 (1991); Souter v. International Union, UAWA, Local 72, 993 F.2d 595, 598 (7th Cir. 1993). McKelvin does not assert that the union's actions were discriminatory, but ...


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