Barger v. United Bhd. of Carpenters & Joiners of Am.

3 F.4th 254

Jonathan BARGER, Plaintiff-Appellant,

v.UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA; Indiana/Kentucky/Ohio Regional Council of Carpenters; Local Union 2, United Brotherhood of Carpenters and Joiners of America, Defendants-appellees.

No. 19-3852

United States Court of Appeals, Sixth Circuit.

Argued: June 16, 2020

Decided and Filed: June 25, 2021

ARGUED: Stephen E. Imm, FINNEY LAW FIRM, LLC, Cincinnati, Ohio, for Appellant. Brian F. Quinn, DECARLO & SHANLEY, P.C., Washington, D.C., for Appellee United Brotherhood of Carpenters and Joiners. Paul T. Berkowitz, PAUL T. BERKOWITZ & ASSOCIATES, LTD., Chicago, Illinois, for Appellees Indiana/Kentucky/Ohio Regional Council of Carpenters and Local Union 2, United Brotherhood of Carpenters and Joiners of America. ON BRIEF: Stephen E. Imm, FINNEY LAW FIRM, LLC, Cincinnati, Ohio, for Appellant. Brian F. Quinn, DECARLO & SHANLEY, P.C., Washington, D.C., Kristin Seifert Watson, CLOPPERT, LATANICK, SAUTER & WASHBURN, Columbus, Ohio, for Appellee United Brotherhood of Carpenters and Joiners. Paul T. Berkowitz, PAUL T. BERKOWITZ & ASSOCIATES, LTD., Chicago, Illinois, Catherine Harshman, HUNTER CARNAHAN SHOUB BYARD & HARSHMAN, Columbus, Ohio, for Appellees Indiana/Kentucky/Ohio Regional Council of Carpenters and Local Union 2, United Brotherhood of Carpenters and Joiners of America.

Before: BATCHELDER, BUSH, and LARSEN, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge.

At least in part out of self-interest, Jonathan Barger, a union member, accused other union members of overbilling a client. Barger's union prosecuted him under the union's constitution, so Barger filed suit against the United Brotherhood of Carpenters and Joiners of America ("UBC"), Indiana/Kentucky/Ohio Regional Council of Carpenters ("IKORCC"), and UBC Local Union 2 ("Local 2") under the Labor-Management Reporting and Disclosure Act ("LMRDA"), alleging that his speech was protected. The district court granted the unions’ motions for summary judgment. The question before us today is whether Barger's speech was protected as a matter of "union concern." We find that Barger's speech was protected, and REVERSE in part, AFFIRM in part, VACATE in part, and REMAND for proceedings consistent with this opinion.

I. Background

Local 2 is a local labor organization headquartered in Monroe, Ohio, and represents carpenters and workers in related industries in Southwest OhioLocal 2 is a local affiliate of Defendant IKORCC, which represents carpenters and workers in related industries in Indiana, Kentucky, and Ohio. The IKORCC is an affiliated regional union of Defendant UBC, which represents carpenters and workers in related industries in the United States and Canada.

Jonathan Barger has been a member of Local 2 since 1999. From 2007 to 2015, he worked intermittently as a carpenter for Solid Platforms, Inc. ("SPI"), a construction company that employs IKORCC union members and is, by association, a signatory of the IKORCC's Southwest Ohio Carpenters Agreement (the "Southwest Ohio CBA").¹ One of SPI's clients, Dynegy, Inc., owned and operated the Zimmer Power Station. Barger worked at Zimmer Power Station between 2014 and 2015, reporting to three SPI supervisors—General Foreman Art Galea, Project Manager Kipp Kahlenbeck, and Safety Manager/Area Manager Daniel Jason Hall (all of whom were union members)—until SPI laid him (and some other employees) off on October 25, 2015.

Two days later, Barger called Dynegy's Zimmer Power Station Maintenance Manager, Joe Lind, asking for a job. When Lind rejected Barger's request, Barger responded that he could "pay [his] own way" because "[SPI is] stealing money from you" by falsifying hours. R. 97, Page ID #912. In other words, Barger believed that Dynegy could pay for his employment with the money it would save from his revealing SPI's falsifying hours. Lind, apparently acting on his own accord, banned Barger from Zimmer Power Station one day later (apparently without telling Barger). Lind claims that the ban was unrelated to the allegation of overbilling. R. 103-1, Page ID #1837.

The same day, October 27th, Barger called Dave Meier, an IKORCC business agent and member of Local 2, to complain that he had not received his last paycheck. Barger also told Meier that he had called Lind and told him that SPI's three supervisors were overbilling Dynegy. Meier reached out to one of the SPI supervisors, Galea, to ask about Barger's paycheck.

Meier and Barger continued to speak by phone every day until October 30th. Apparently unbeknownst to Barger, Meier had Jeff Gressler, a senior services representative, listen in on one of their phone conversations. Meier wanted to have a witness to Barger's complaints because Meier was considering bringing a charge against Barger. Meier asked Barger whether it was true that he had told Lind that SPI was overbilling Dynegy; Barger confirmed that he had. Meier then asked whether Barger "was aware of [the] potential consequences to brother and sister members," and Barger said that he was and that it was worth it "to get even with" the SPI supervisors because he was "sick of their shit." During another conversation, Barger told Meier that "if that's the kind of guys that you want in your union then, you know, I don't want to be a part of it," and stated that he would be taking a nonunion job.

On October 30th, Meier filed a charge with the IKORCC against Barger for violating two sections of the UBC Constitution: § 51(A)(1), "Causing Dissension," and § 51(A)(12), failing to use "every honorable means to procure employment for Brother and Sister Members." In his deposition, Meier testified that he had decided to bring these charges because Barger continued to press the billing issues with him, and that he might not have brought the charges had Barger told only Lind or mentioned it to him only once. The IKORCC trial committee held a trial on May 11, 2016,² and recommended a verdict upholding the charge and fining Barger $5,000. The IKORCC adopted the trial committee's recommendations, and Barger appealed to the UBC.

On August 8, 2016, Barger filed a third grievance with the UBC, alleging that the IKORCC failed to provide a receipt for his appeal payment, and seeking receipt of his $50 appeal deposit and a time extension to prepare his appeal to the UBC. By August 11th, Barger's receipt apparently had been delivered to him, so the point was moot; the UBC also denied Barger's request for a time extension.

On August 22nd, Barger tried to appeal the IKORCC's decision, but, on September 8th, the UBC rejected the appeal because Barger failed to include a receipt for his payment of his $50 appeal fee (the same receipt he had just received on August 10th). On September 22nd,³ Barger perfected his appeal. On October 4th, the UBC requested that the IKORCC answer within thirty days. On November 17th, Barger filed a grievance due to IKORCC's delay in responding. The IKORCC filed its answer on November 21st (18 days late). On May 16, 2017, the UBC granted Barger's appeal, reversed the guilty verdict, vacated the $5,000 fine imposed, and ordered that his $50 appeal fee be returned.

On November 12, 2015 (about two weeks after Meier initially brought a charge with the IKORCC against Barger), Environmental and Safety Solutions, Inc. ("ESS"), which provides safety supervision services on construction sites, hired Barger as an independent contractor. ESS assigned Barger to work at the Zimmer Power Station the Saturday before Thanksgiving in 2015. But when he arrived on site, he was denied entry. At this point, Barger had not told anyone at Dynegy that he was now working for ESS. Barger then performed more services for ESS at different work sites until the Wednesday before Thanksgiving, but this was his last assignment, because after that, ESS, without notice to Barger, stopped offering him assignments. Barger sent a text message in April 2017 to an ESS representative, but does not recall whether he contacted ESS at any other point to request more work assignments.

Since January 2016, Barger has worked multiple jobs for several different employers. From January 2016 until January 2018, Barger placed his name on IKORCC's "Mix 20/20" automated job referral system, which calls members based on the member's skills and the jobs the member is willing to accept, as entered into the system. Barger accepted a job he had received through this referral system in January 2018. Prior to that, he had been called by the system 195 times with job referrals.

Barger filed suit on February 3, 2017. Following a series of motions that reduced the number of claims and defendants, the remaining claims were (1) that Local 2, IKORCC, and UBC violated Barger's free speech rights under § 101(a)(2) of the LMRDA, 29 U.S.C. § 411(a)(2) ; (2) that, in violation of the LMRDA, the IKORCC and the UBC conspired to retaliate against Barger for exercising his free speech rights; and (3) that Dynegy committed tortious interference with Barger's employment relationship with ESS. On March 25, 2019, the four remaining defendants (i.e. , Local 2, the IKORCC, the UBC, and Dynegy) each filed a motion for summary judgment. The district court granted all four motions on August 6, 2019. Barger now timely brings three claims on appeal. He argues that Local 2, the IKORCC, and the UBC violated his free speech rights under § 101(a)(2) of the LMRDA, 29 U.S.C. § 411(a)(2) ; that they committed a per se violation of the LMRDA when they retaliated against him for "slandering" a union official; and that they conspired to violate the LMRDA under Ohio law.

II. Analysis

"A district court's grant of summary judgment is reviewed de novo." Andrews v. Wayne County , 957 F.3d 714, 721 (6th Cir. 2020) (citation omitted). "Summary judgment is proper ‘if there is no genuine dispute as to any material fact’ and the moving party ‘is entitled to judgment as a matter of law.’ " Id . (quoting Fed. R. Civ. P. 56(a) ). "The standard of review in a...