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Nemsky v. International Union of Operating Engineers

November 4, 2008


The opinion of the court was delivered by: Reagan, District Judge


On March 21, 2007, Tom Nemsky filed a two-count complaint under Section 301 of the Labor Relations Act, 29 U.S.C. § 185, against Defendants, International Union of Operating Engineers, Local 399 ("Local 399" or "the Union"), and ConocoPhillips Company. In Count One, Nemsky alleges that Local 399 breached its duty to fairly represent him when it gave away the right to grieve or arbitrate a positive test under ConocoPhillips's Substance Abuse Policy ("SAP"). In Count Two, Nemsky alleges that ConocoPhillips breached its collective bargaining agreement with Local 399 when it discharged him without just cause.

Local 399 and ConocoPhillips filed motions for summary judgment (Docs. 37, 41), to which Nemsky responded jointly (Doc. 50). Local 399 and ConocoPhillips filed replies (Docs. 57, 58). Local 399 also filed a motion for sanctions, which is fully briefed (Docs. 39, 46, 51, 56).

The Court heard oral argument on all pending motions on October 17, 2008. This matter being fully briefed and the parties having been heard, the Court begins its analysis with a brief recitation of the factual background and procedural history.

Factual Background and Procedural History

ConocoPhillips operates a refinery in Wood River, Illinois, where it refines petroleum and delivers oil products. Nemsky was employed at the ConocoPhillips Wood River Refinery for approximately 22 years until his employment was terminated on September 21, 2006. At the time of his termination, Nemsky worked as an operating engineer.

Local 399 is the labor union that represents the bargaining unit employees employed by ConocoPhillips at its Wood River refinery. The employment of bargaining unit employees, including Nemsky, is governed by a collective bargaining agreement ("CBA") negotiated by ConocoPhillips and Local 399. Article 20 of the CBA, the "Employee Discipline" clause, provides in part:

An employee may be disciplined, including discharge, only for just cause....

1. Whenever an employee is discharged, he will be given a written notice stating the reasons for such discharge....

2. If after full compliance with the foregoing procedure the complaint is not settled in a satisfactory manner, a duly designated representative of Local 399, International Union of Operating Engineers, may submit the complaint to arbitration under the procedure set out in Article 18 provided such request for arbitration is made to the Company within seven (7) days (Saturdays, Sundays, and holidays excluded) of the date the Refinery Management gives a duly designated representative of Local 399, Internal Union of Operating Engineers, its decision.

(a) It is understood and agreed that the arbitrator shall determine whether the Company had just cause for discipline. Doc. 23. Exhibit A.

On April 1, 2004, ConocoPhillips implemented a revised SAP for all of its employees at United States work sites. The SAP provided for random drug and alcohol testing of its employees. Doc. 23, Exhibit B. It established that "[i]t is a violation of this policy for employees to report for duty or remain on duty (a) with any detectable trace amount ... of any illegal drug, alcohol or controlled substance...." Id. The Alcohol Misuse Prevention Plan implementing the policy defined "detectable trace amount" as an alcohol concentration of .040 or greater. Doc. 23, Exhibit C, p. 6. The Plan provides, "The consequence of any confirmed positive test result greater than 0.04 will be termination." Id. at p. 24. The SAP was distributed to all ConocoPhillips employees. Doc. 23, Exhibit D.

Local 399 filed a grievance regarding the policy prior to its April, 2004 implementation, demanding that ConocoPhillips "cease and desist" from implementing the policy, but ConocoPhillips maintained that its position was not arbitrable. See Doc. 38, Exhibit 2, Machino Affidavit, Attachment B ("Machino Aff.")*fn1 . The Union also filed an unfair labor practices charge against ConocoPhillips with the National Labor Relations Board ("NLRB") for failing and refusing to bargain in good faith "by unilaterally implementing a change to the existing drug and alcohol policy." Machino Aff., Attachment C. The NLRB dismissed the charges, stating that, based on its investigation, further proceedings were not warranted because of insufficient evidence. Id. Machino testified that an NLRB agent told him that an appeal "would be a waste of time" because "this board would not approve it ... and that was as far as it would go." Doc. 38, Exhibit 1, Machino Deposition 31:16-19 ("Machino Dep."). The minutes of the December 21, 2004 union meeting reflect that members were advised that the NLRB dismissed their charge and that it appeared they had "little avenue for relief." Machino Aff., Attachment D.

The Union's negotiations with ConocoPhillips resulted in the January 27, 2005 Memorandum of Agreement ("MOA"). Machino Aff., Attachment H. In the MOA, the Union gained the right to arbitrate chain of custody issues, a right which, according to Refinery Committee Chairman and Assistant Business Agent Floyd Fessler, no other ConocoPhillips location had or has. Doc. 38, Exhibit 3, Fessler Deposition 49:22-25 ("Fessler Dep."). Additionally, the MOA resulted in the return to work of two employees who had been discharged under the SAP. Fessler Dep. 35:23-36:3. At the February 15, 2005 union meeting, members were advised of the agreement and were told that it was available on the ConocoPhillips website. Machino Aff., Attachment D.

On September 20, 2006, Nemsky reported to work at 6:45 A. M., drove to his work area and got his equipment to test for combustibles. Doc. 38, Exhibit 5, Nemsky Deposition 13:4-14; 14:5-8. ("Nemsky Dep."). While securing the area that motor vehicles would be allowed to enter, Nemsky kicked over a can of pipe cement which got on his coveralls and shoe. Id. 13:20-23. He went into the bathroom and used a contact cleaner degreasing solvent to remove the pipe cement. Id. Nemsky then received a call from his supervisor that he had been randomly selected for a drug and alcohol test. Id. 15:6-8.

Nemsky reported to Pat Denier, a nurse and Breath Alcohol Technician employed by ConocoPhillips. Id. 16:12-14. Nemsky was aware that the zero tolerance policy level was .04. Id. 16:22-25. It is undisputed that Nemsky's blood alcohol level was tested four times between 7:43 A. M. and 9:56 A. M., with the following results: .043, .044, .026 and .000. See Doc. 24, Exhibit A. After the second test, Nemsky called Fessler who told him to get a blood test as soon as possible to attempt to show that the breath analyzer was inaccurate. Id. 17:5-20. Nemsky told a human resources employee, Lynette Zierges, that he needed to leave immediately, but she told him that he could not leave until his blood alcohol level was at .000. Id. 17:22-18:9. Zierges did, however, offer to call him a cab around 8:20 A. M., prior to the urinalysis test for drugs. Id. 18:12, 18:20. At 8:30 A.M., Nemsky completed the urinalysis, which was negative. He told Denier that he had taken Robitussin before work, but Denier responded that Robitussin would not affect an alcohol test. Id. 20:22-21:2. ConocoPhillips terminated Nemsky's employment on September 21, 2006.

Nemsky grieved his termination, which was processed through the fourth step of the grievance procedure, the last step before arbitration. Id. 26:13-19. Machino felt that Nemsky's failure to get a blood test had doomed any hope of the Union's succeeding on the grievance. Machino Dep. 49:15-18. Machino regarded the blood test as part of the continuum of the chain of custody, and a negative-for-alcohol blood test could have justified the Union's taking the position that there was a flaw in the process. Id. 49:15-25; 50:2-9. On March 21, 2007, Nemsky filed charges with the NLRB against Local 399 and ConocoPhillips, which were dismissed. Concurrently, he filed the instant action, in which he denies that he violated the SAP and maintains that he was terminated without "just cause."

Standard Governing Summary Judgment

Summary judgment should be granted when "'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Bevolo v. Carter, 447 F.3d 979, 982 (7th Cir. 2006), quoting Fed. R. Civ. P. 56(c), and citingEzell v. Potter, 400 F.3d 1041, 1046 (7th Cir. 2005), and Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

In assessing whether summary judgment is warranted, the Court must construe all evidence, plus the inferences reasonably drawn from the evidence, in the light most favorable to the non-moving party. Sallenger v. Oakes, 473 F.3d 731, 739 (7th Cir. 2007), citing Leaf v. Shelnutt, 400 F.3d 1070, 1078 (7th Cir. 2005). The mere existence of an alleged factual dispute is not sufficient to defeat a summary judgment motion. Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986); Salvadori v. Franklin School District, 293F.3d 989, 996 (7th Cir. 2002). Rather, to successfully oppose ...

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