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HOWARD v. LOCAL 152 OF THE INT'L CONSTR. & GEN. LA

April 15, 1998

JAMES E. HOWARD, Plaintiff,
v.
LOCAL 152 OF THE INTERNATIONAL CONSTRUCTION AND GENERAL LABORERS' UNION OF AMERICA, et al., Defendants.



The opinion of the court was delivered by: ALESIA

 Before the court is a motion filed by defendant Local 152 of the International Construction and General Laborers' Union of America ("Local 152"). This motion is defendant's motion to dismiss plaintiff James E. Howard's ("Howard") complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the court grants in part and denies in part defendant's Rule 12(b)(6) motion to dismiss.

 I. BACKGROUND

 Howard's complaint makes the following allegations which, for the purposes of ruling on defendant Local 152's Rule 12(b)(6) motion, are taken as true. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). Defendant Pope ("Pope"), an Illinois corporation, is a general contractor at the Zion Nuclear Generating Station ("Zion nuclear plant"). Defendant Local 152 is a laborers' union which represents employees of Pope. Howard was employed at the Zion nuclear plant for approximately fourteen or fifteen years until March 11, 1997 when he alleges he was terminated by Pope without just cause.

 After Howard's termination by Pope on March 11, 1997, Howard filed a grievance with Local 152 to protest his termination. Local 152 failed to refer him for work at the Zion nuclear plant and only once referred him for work with other employers within Local 152's jurisdiction. Howard contends that: (1) Local 152 discriminated against Howard because he has been a leader in filing unfair labor practice charges and other complaints against the union; (2) Local 152 failed to adequately investigate, process, present and argue Howard's grievance and failed to provide Howard with a fair and impartial hearing; and (3) Local 152 handled Howard's grievance in a perfunctory manner due to the Local's hostility towards him.

 Howard was unable to find work following his termination by Pope and initiated a suit on August 7, 1997. Howard's complaint alleges that Pope breached the collective bargaining agreement by terminating him without good cause and that Local 152's failure to adequately investigate his grievance constituted breach of duty of fair representation. Pope rehired Howard on September 15, 1997.

 II. DISCUSSION

 A. Standard for deciding a Rule 12(b)(6) motion to dismiss

 When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1019 (7th Cir. 1992). If, when viewed in the light most favorable to the plaintiff, the complaint fails to state a claim upon which relief can be granted, the court must dismiss the case. See FED. R. CIV. P. 12(b)(6); Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). However, the court may dismiss the complaint only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 Even under the liberal notice pleading standard of the Federal Rules of Civil Procedure, however, a complaint must include either direct or inferential allegations respecting all material elements of the claim asserted. Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). Bare legal conclusions attached to narrated facts will not suffice. Strauss v. City of Chicago, 760 F.2d 765, 768 (7th Cir. 1985).

 B. Count I -- Breach of duty of fair representation

 Count I is a claim against Local 152 for breach of duty of fair representation. Local 152 has moved to dismiss count I on two alternative grounds. Local 152 first argues that Howard has failed to exhaust his internal union remedies. Alternatively, Local 152 argues that Howard has failed to allege sufficient facts to establish the union's violation of its duty of fair representation. The court will consider each of the arguments in turn.

 1. Exhaustion under LMRA

 Local 152 argues that count I must be dismissed for failure to exhaust or attempt to exhaust internal union remedies as required by the Constitution of the Laborers' International Union of North America ("LIUNA"), Article XVI Section 2. *fn1" For the reasons set forth below, Local 152's motion to dismiss this count is denied.

 Unlike Title I of the Labor Management Reporting and Disclosure Act of 1959 ("LMRDA"), 29 U.S.C. §§ 411-415, the Labor Management Relations Act ("LMRA") contains no explicit exhaustion requirement. Nevertheless, the Supreme Court embraced an LMRA exhaustion requirement in Republic Steel Corp. v. Maddox, 379 U.S. 650, 13 L. Ed. 2d 580, 85 S. Ct. 614 (1965). The Court in that case held that an employee seeking a remedy for an alleged breach of the collective bargaining agreement between his union and employer must attempt to exhaust any exclusive grievance and arbitration procedures established by that agreement before he may maintain a suit against his union or employer under § 301(a) of the LMRA. Republic Steel Corp., 379 U.S. at 652-53. However, courts have discretion to excuse the exhaustion requirement if the circumstances warrant. ...


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