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Marshall v. Local 701

September 19, 2008

PERRY MARSHALL, PLAINTIFF,
v.
LOCAL 701, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, ART LUDWIG, AND LAWRENCE CURLEY, DEFENDANTS.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

Plaintiff Perry Marshall ("Marshall") brought suit under Title I of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. §§ 411-15 ("LMRDA"). Before the court are two summary judgment motions, one motion filed jointly by defendants Local 701, International Brotherhood of Electrical Workers ("Local 701") and Art Ludwig ("Ludwig"), and a separate motion by defendant Lawrence Curley ("Curley"). Also before the court are two motions to strike. Curley filed a motion to strike portions of the plaintiff's affidavit, the arguments of which Local 701 and Ludwig joined, in addition to moving to strike certain responses and statements of additional material fact. Local 701 and Ludwig filed an additional motion to strike certain statements of additional material fact. For the reasons stated below, the motions to strike are granted in part and denied in part and the motions for summary judgment are granted.

I. BACKGROUND*fn1

Marshall is a member of Local 701, a labor union. Ludwig was the Business Manager of Local 701 until June 30, 2004. The International Brotherhood of Electrical Workers ("IBEW") provides advice and assistance to its affiliated local unions through its district offices. Curley was an officer of the IBEW and was International Vice-President for the Sixth District, which includes Local 701.

Local 701 refers members to jobs pursuant to the Referral Procedures portion of the Inside Commercial Collective Bargaining Agreement (the "CBA") between Local 701 and DuPage Division, Northeastern Illinois Chapter, National Electrical Contractors Association (the "Association"). The IBEW was not a party to the CBA. Under the Referral Procedures, referrals are given to employees according to their position in the relevant "Out of Work List" (also known as "the book"), which is a list of names of members available for work. Typically, members who complete a job sign at the bottom of the book, taking their place in line for additional work below those who have signed earlier. However, an exception exists where a member finishes a "short call," defined as a work project of fourteen days or less. Following a "short call," a member may retain the same position on the book that he or she had before taking the "short call" job. Local 701 adopted a Referral Rule to ensure that members reported to work once they had accepted a referral unless they had an illness or emergency situation. Violation of the Referral Rule results in an applicant losing his position on the applicable Out of Work List and having to sign at the bottom of the book.

Marshall was number five on the Out of Work List, which entitled him to be the fifth person offered an assignment and gave him more opportunity to choose which "short calls" he wished to accept. On August 28, 2002, he accepted a job referral to McGovern Electric. Although Marshall went to the job site, he informed a foreman of McGovern Electric that he could not stay because of a family situation and left. That evening, Kenneth Lambert ("Lambert"), a Local 701 Business Representative who was in charge of the job referral process at the time, telephoned Marshall and left a message saying that McGovern Electric had complained and Marshall could lose his spot on the book. Local 701 representatives spoke with the foreman of McGovern Electric, and Ludwig determined that Marshall failed to satisfy the conditions of the short call provision of the CBA and the Referral Rule by failing to report ready for work after accepting a referral. Lambert called Marshall on August 29, 2002 to tell him that he would be removed from his position on the Out of Work List. On August 30, 2002, Ludwig sent Marshall a letter explaining that if Marshall appealed this determination, his position would not be changed until the appeal process was concluded.

The CBA provides that any and all disputes concerning the referral of employees to jobs shall be heard by an Appeals Committee, consisting of one person appointed by the Association or the employer, one appointed by the union, and one member of the public selected by previous appointees. The Appeals Committee, which is not part of or subject to the control of Local 701, has authority under the CBA to issue final and binding decisions. Marshall decided to appeal Ludwig's decision to the tri-partite panel. The Appeals Committee heard Marshall's appeal on September 10, 2002. On September 13, 2002, it requested further documentary evidence from Marshall. On October 24, 2002, the Appeals Committee upheld Ludwig's decision and, on October 28, 2002, Marshall's name was removed from the Out of Work list.

Under the IBEW Constitution, members may appeal from what they perceive to be an injustice committed by a local union. Marshall attempted to appeal the decision concerning his position on the list to the IBEW, but Curley informed Marshall, by letter, that it would be improper to overturn the decision because it did not involve a charge under the IBEW Constitution. In his letter, dated October 11, 2002, Curley stated that "[t]he alleged violation brought forward by [Local] 701 was under [the CBA]," which committed review to the Appeals Committee. Since at least 1979, the IBEW has interpreted its Constitution to not apply to issues arising out of a local union's CBA. Shortly after Curley denied Marshall leave to appeal, Marshall filed charges against various Local 701 officers alleging violations of the referral procedures. Curley assigned an International Representative to investigate the charges and, based on the representative's report, concluded that the charges had no merit. Marshall also filed charges with Curley against Ludwig, which Curley dismissed as untimely filed.

Marshall alleges that his removal from the Out of Work List stems from discrimination against him due to the fact he had been outspoken about decisions by union officials that he believed were not made in accordance with the IBEW Constitution, the CBA, or local union rules. He alleges that union officials regarded him as a troublemaker. He alleges that their actions constitute retaliation to suppress his freedom of speech, as guaranteed by Title I of the LMRDA. He further alleges that Curley's denial of his appeal was improper because the IBEW Constitution covers discriminatory actions of local union officers. He alleges that Curley acted solely to support his friends at Local 701, thus suppressing Marshall's freedom of speech in violation of the LMRDA.

II. ANALYSIS

A. Motions To Strike

Curley filed a 76-page motion to strike, attacking the vast majority of paragraphs in Marshall's 61-page, 170-paragraph rebuttal affidavit submitted in response to both motions for summary judgment.*fn2 He also moved to strike certain statements made in opposition to Curley's statement of material fact. The court set a briefing schedule on June 26, 2008 whereby responses were due by July 17, 2008 and replies by July 31, 2008. On July 3, 2008, Local 170 and Ludwig filed a motion to join Curley's motion regarding the affidavit, which the court granted, and additionally moved to strike eight statements of additional material fact submitted in opposition to Local 170 and Ludwig's motion. A separate briefing schedule on the additional motion to strike was set whereby responses were due by July 17, 2008 and replies by July 28, 2008. On July 17, 2008, Marshall filed a four-page response that addressed only Local 170's and Ludwig's motion to strike the eight statements of additional material fact. Defendants Local 701 and Ludwig filed a reply on July 25, 2008. Marshall failed to respond to Curley's motion to strike portions of his affidavit and responses to material facts.

Local Rule 78.3 provides that "[f]ailure to file a[n] . . . answering memorandum shall not be deemed to be . . . withdrawal of opposition thereto, but the court on its own motion or that of a party may . . . grant the same without further hearing." L.R. 78.3. Although the court is troubled by the failure of experienced counsel to file a response to the motion to strike, given the severe consequences that could result from the summary granting of Curley's broad-ranging motion, the court will decide the motion based on Curley's memorandum.

Counsel for Marshall obtained four extensions of time to respond to the defendants' motions for summary judgment. When the court ruled on Marshall's fourth motion for extension of time, it granted "plaintiff's counsel permission to file [a] response in any form he wishes by 5/23/08 and to file in accordance with the Local Rules shortly thereafter." Order (May 15, 2008, docket no. 114) (emphasis added). Notwithstanding these accommodations, Marshall filed his response late, on May 26, 2003, and even then failed to rectify significant defects in the form of the response submitted.

1. The Defendants' Motion*fn3 To Strike Parts Of Marshall's Affidavit

Curley asserts seven primary reasons why the majority of the affidavit paragraphs should be stricken: (1) the statements are inadmissible hearsay; (2) Marshall fails to provide a foundation to show he has personal knowledge of the facts asserted; (3) the statements describe the content of documents without attaching the documents in violation of the best evidence rule; (4) the statements advance legal arguments or conclusions; (5) the statements fail to cite to the ...


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