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BROWN v. LOCAL 701 OF THE IBEW

February 12, 1998

ANTHONY BROWN, Plaintiff,
v.
LOCAL 701 OF THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Defendant.



The opinion of the court was delivered by: PLUNKETT

 Anthony Brown ("Brown") sued Local 701 of the International Brotherhood of Electrical Workers ("Local 701"), of which he is a member, for allegedly failing to refer him for work in a fair and nondiscriminatory manner. He asserted claims of breach of contract, breach of the duty of fair representation and violation of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 431. The defendant has moved to dismiss the first two claims in their entirety on several grounds and to strike the request for damages and the jury demand as to the last claim. For the reasons set forth in this memorandum opinion and order, the motion is granted in part and denied in part.

 Facts

 Brown had worked as an electrician in various non-union shops for ten years when, in 1988, Local 701 solicited his membership. He was told by Local 701's representative that if he joined the union he would receive sufficient training to attain journeyman wireman status in accordance with applicable membership rules. So Brown joined. *fn1"

 Local 701's relationship with its members is governed by three contracts. One is the Constitution of the International Brotherhood of Electrical Workers (the "International Constitution"), an agreement between the international union and its locals. Another is the by-laws of Local 701 itself (the "Local By-Laws"). And the last is the collective bargaining agreement ("CBA") between one or more employers and Local 701. Local 701 administers an exclusive hiring hall in its jurisdiction for all electrical contractors who are members of the National Electrical Contractors Association ("NECA") or are signatories to the CBA.

 The CBA classifies electricians in Local 701 in four groups on the basis of, among other things, experience, hours worked within Local 701's jurisdiction and passing a journeyman wireman's examination. Work referrals are first made from the "out of work" list for Group I. Once that list is exhausted, referrals are then made from Group II, Group III and lastly from Group IV. An out-of-work member of a higher group is always preferred over a member of a lower group for any work referral. Group IV is comprised of the least experienced members, Group III of more experienced members, Group II of those who have had both two additional years of experience and have passed a journeyman wireman's examination, and Group I of those who additionally have spent one year working within Local 701's jurisdiction.

 When Brown joined in 1988, he was classified as an "inside wireman." Although he had never taken a proficiency examination, he was referred out for work and paid wages and benefits similar to those of a full commercial journeyman wireman. While so classified, he earned an average of approximately $ 40,000 per year. In 1990 he was reclassified as a "Journeyman Wireman P.E." ("J.W.P.E."), which he was told meant "Journeyman Wireman Pending Examination." Once again he was given no examination. Local 701 told him that as a J.W.P.E. he could be referred out to work through their apprenticeship program prior to Group II workers even though he was not enrolled in the apprenticeship program. Thereafter, Brown's referral were less frequent and of shorter duration than before. From about June 1992 to June 1993, he received only two referrals totaling approximately 420 hours. When he asked about the lack of referrals, Local 701 told him that the Group I out-of-work list had to be exhausted before he could receive a referral.

 Beginning in 1991 Brown asked to be enrolled in training classes but was told the waiting list was four years long. He later learned that the classes were designed to train residential wiremen (who were covered by a different CBA) into commercial journeyman wiremen.

 In 1992 Brown was finally given a proficiency examination but failed. During the next three years he took the exam four additional times and failed each time. In each instance he was told only that he had failed. He was never permitted to review the exams, he was never informed of his areas of deficiency, and he was never provided with training to improve his skills.

 In late spring 1993 Local 701 advised Brown that there was no work for him in its jurisdiction. It suggested he seek work through Local 68 in Denver, Colorado. He understood that his employment had been worked out through the two locals, so he reported to Local 68 in May 1993. But instead of receiving work referrals, Brown was informed that Local 68 would not recognize his classification of J.W.P.E. It therefore placed him in Group IV for work referrals. Brown alleges that he and his wife had left their home in Illinois with most of their belongings and that he was essentially out of work. By necessity, he states, they moved in with his wife's parents in eastern Kentucky.

 For the next two years Brown found work through locals in Kentucky and West Virginia by not disclosing his J.W.P.E. classification unless asked. He regularly called Local 701 to ask about his prospects for referrals if he should return to its jurisdiction and to learn when the next proficiency exam would be given. From June 1993 to June 1995 Local 701 informed Brown that there was no work available for him in its jurisdiction. In April 1996 Brown passed a proficiency examination given by Local 701 and was reclassified as a journeyman wireman.

 Pursuant to the International Constitution and the Local By-Laws, Brown complained to the International Vice President of the Sixth District of the International Brotherhood of Electrical Workers ("Sixth District") that Local 701's actions and omissions had violated the CBA. He also requested documents such as work referral and proficiency exam records from Local 701 and asked for the Sixth District's help in obtaining them. The Sixth District denied him relief on both his complaint and his document request. He appealed first to the International President, who denied his appeal, and then to the International Executive Council. He was informed on June 12, 1997, that the International Executive Counsel refused to consider his appeal. His request for documents was never addressed during the appeals process.

 Brown asserts that Local 701 breached the International Constitution, the Local By-Laws and the CBA by failing to administer properly the competency and proficiency examinations and failing to classify him properly for work referrals. He alleges that from 1991 to 1995 he lost $ 100,000 of income as a result and that he spent $ 8,000 on his failed move to Denver. He also alleges that he lost the value of various benefits he would have been entitled to if he had properly received work referrals.

 Discussion

 Local 701 challenges Brown's claims on several grounds. It contends that there is no subject matter jurisdiction over Count I to the extent that it is based upon breach of the Local By-Laws. It also argues that both Counts I and II are time-barred under the six-month statute of limitations it asserts is applicable. In addition, it says, those two counts should be dismissed because Brown failed to allege that he exhausted his remedies under the CBA. And finally it asserts that the request for damages and jury demand must be stricken as to ...


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