Thomas v. United Steelworkers Local 1938

Dave Thomas, Plaintiff,

v. United Steelworkers Local 1938; United Steel, Paper and Forestry, Rubber, Manufacturing, Energy,Allied Industrial and Service Workers International Union; and John Malec, Defendants.

Civil No. 11-839 (DWF/LIB)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Dated: October 5, 2012

MEMORANDUMOPINION AND ORDER

Judith K. Schermer, Esq., Judith K Schermer PLLC, counsel for Plaintiff.

John G. Engberg, Esq., and Mark W. Bay, Esq., Peterson Engberg & Peterson; and Sasha Shapiro, Esq., United Steel, Paper and Forestry, Rubber, Mfg., Energy, Allied Industrial and Service Workers Int'l Union, counsel for Defendants.

INTRODUCTION

This matter is before the Court on a Motion for Summary Judgment (Doc. No. 29) brought by Defendants United Steelworkers Local 1938 ("Local 1938), United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union ("USW"), and Jon Malek¹ ("Malek"). Local 1938 and USW are referred to together as the "Union" and all defendants are referred tocollectively as the "Union Defendants." For the reasons set forth below, the Court grants Union Defendants' motion.

BACKGROUND

United States Steel ("USS") is a steel producer that owns and operates several iron ore mines, including the Minntac facility in Mountain Iron, Minnesota. (Doc No. 40, Malek Decl. ¶ 2.) USW is the collective bargaining agent of bargaining unit employees of USS. (Id.) Local 1938 is the local union chartered by USW to carry out certain functions at USS's Minntac facility. (Id.) Malek has been the Vice President of Local 1938 since 2003. (Id.; Doc. No. 37, J.A. at 59 (Malek Dep. at 6-7).) USS and USW are parties to successive Collective Bargaining Agreements ("CBAs") that govern the terms and conditions of employment for bargaining unit employees at the Minntac facility. (Malek Decl. ¶ 3.)

Plaintiff Dave Thomas ("Thomas") is a long-time employee of USS. (Doc. No. 49, Thomas Aff. ¶ 2; J.A. at 7 (Thomas Dep. at 10).) Thomas has been a member of the USW and Local 1938 since he began working in 1973. (Id. at 8 (Thomas Dep. at 14-15).) In 2003, Thomas was assigned team leader duties in the "Pit." (Doc. No. 49, Thomas Aff. ¶ 3; J.A. at 10 (Thomas Dep. at 22).) The Pit is an area of the facility that is approximately 10 to 15 miles long and 5 to 6 miles wide. (Thomas Aff. ¶ 12.) As a team leader, Thomas supervised 25-28 truck drivers, 8 mobile equipment operators, and 8 shovel runners. (Id. ¶ 11.) Thomas performed these duties until 2009. (J.A. at 11 (Thomas Dep. at 25).) Profanity was not uncommon in the Pit, and the daily languageused at Minntac has been described as "salty" or "rough." (J.A. 100 (Woods Dep. at 16); 144 (Croteau Dep. at 18).)

Until 2003, the CBA at the Minntac facility included the following job description for Team Leaders: "A Team Leader shall be responsible to lead the overall task execution by the work team, perform administrative functions, and participate in the hands-on performance of his team's work." (Malek Decl. ¶ 4, Ex. 1 at 263.) In the 2003 CBA, the position of Team Leader was eliminated. (Id. ¶ 5, Ex. 2.) Instead, the administrative and directional duties previously assigned to the Team Leader position were incorporated into new maintenance and production job descriptions, including Operating Technician I ("Op Tech I"—Mobile Equipment Operator or Truck Driver), Operating Technician II ("Op Tech II"—Shovel Runner), Maintenance Technician Mechanical ("MTM"), and Maintenance Technician Electrical ("MTE"). (Id.) The current job description for the position of Op Tech II, Labor Grade 4, includes: "Directs other operating and support crew members, performs administrative duties, and communicates with maintenance, as required to maximize production." (Doc. No. 35, Mattson Aff. ¶ 5, Ex. A at 212.) Op Tech IIs who also perform administrative and directional duties are informally referred to as "team leaders," and team leader duties fall within the description of Op Tech II. (J.A. at 128 (Sterk Dep. at 48-49).)

During Thomas's tenure as a team leader in the Pit, Malek and Mike Woods, the President of Local 1938, received numerous complaints about Thomas. (J.A. at 65-73 (Malek Dep. at 28-60), 98-100 (Woods Dep. at 12-19).) Union Defendants claim that roughly half of the complaints related to Thomas's assignment of overtime, and roughlyhalf related to the way Thomas treated crew members and, in particular, his use of abusive language. (Id.) All of the complaints were made via telephone and all of the complainants refused to give their names. (Id.) Union Defendants claim that Malek and Woods discussed these complaints with Thomas's direct supervisor, Lou Janezich ("Janezich"), the Area Manager of the Pit, and that Janezich preferred to resolve conflicts on his own without involving the Labor Relations Board. (J.A. at 66-67, 69-72 (Malek Dep. at 33-37, 47-56); J.A. at 99 (Woods Dep. at 15-19).) Union Defendants also assert that after they discussed Thomas with Janezich, complaints about Thomas would stop for several months. (J.A. at 70 (Malek Dep. at 50); 101 (Woods Dep. at 22-23).) Union Defendants claim that Woods attempted to contact Thomas by phone, to no avail, and that Malek asked a griever, Rick Stoehr, to talk to Thomas, but that Thomas told him "You and your Union can go fuck yourselves." (J.A. at 69 (Malek Dep. at 46); 101 (Woods Dep. at 21).) Thomas denies that Janezich spoke with him, and does not recall if Stoehr spoke to him, about his performance as a team leader. (J.A. at 48 (Thomas Dep. at 74).)

In 2008, the overtime policy with USS changed, eliminating team leaders' discretion in assigning overtime. (Id. at 72 (Malek Dep. at 57-58); 99 (Woods Dep. at 14-15).) Since the change, neither Woods nor Malek have received any complaints about Thomas' assignment of overtime. However, they have received complaints about how Thomas related to his crew, such as his demeanor and "the way that he talked down to people." (Id. at 100 (Woods Dep. at 16-17).)

On April 4, 2009, Thomas heard a report over his radio that a truck driver, Roy Varani, thought there was a piece of metal missing on a piece of equipment. (J.A. at 11 (Thomas Dep. at 26).) Thomas immediately called the truck driver, who reported the missing metal, and the shovel operator, Dan Sixberry, and told them not to load the truck until Thomas arrived. (J.A. at 13 (Thomas Dep. at 33); Thomas Aff. ¶¶ 29, 30).) When Thomas arrived, he discovered that the truck had been loaded and that Varani and Sixberry were on the ground looking at the shovel; they had determined that nothing was missing from the shovel bucket. (J.A. 13 (Thomas Dep. at 26); Thomas Aff. ¶ 31).) Thomas was upset with the two men for not following the safety procedure. (J.A. at 15 (Thomas Dep.at 41).) Thomas asked Sixberry why he loaded the truck, to which Sixberry responded, "I don't need to listen to this bullshit" and walked away. (J.A. at 13 (Thomas Dep. at 34).) Varani testified at his deposition that he tried to explain what he had done, that he and Thomas began yelling at each other, and that Thomas said something to the effect of "[n]o wonder the crew said you were a dumb f---ing truck driver." (J.A. at 14 (Thomas Dep. at 37); Thomas Aff. ¶¶ 31, 32, 34.)² Thomas asserts that he immediately knew that he should have used different words and claims that he tried calling, but did not reach, Varani over the weekend to apologize. (Thomas Aff. ¶ 36.) Thomas told the Shift Manager, Scott McDermid, what had happened, and McDermid prepared an incident report. (Thomas Aff. ¶ 35.)

On April 6, 2009, the Area Manager of Mine Operations, Mike Sterk, organized a "fact-finding" meeting because Varani had lodged a report of harassment based on the April 4 incident. (J.A. at 118 (Sterk Dep. at 11, 19).) USS representatives present were Sterk, Jason Croteau (Assistant Shift Manager), and Nicolas Simonson and Katrina Donovan (both from Labor Relations). (Id.) The three bargaining unit employees involved in the April 4 incident, Thomas, Varani, and Sixberry, were also present. (Id.) In addition, Malek and grievance representative, Jake Schmelzer, were present. (Id.) USS and Union representatives met with each employee separately. Thomas claimed that this was an isolated incident. (J.A. at 48 (Thomas Dep. at 175).) Malek then stated that he had received "20 complaints" about Thomas. (Thomas Aff. ¶ 44; J.A. at 26 (Thomas Dep. at 88); J.A. at 48 (Thomas Dep. at 174-75).)³ Thomas remembers that Malek also stated, "if I had my way you would be off the property." (¶ 45.) In addition, Thomas asserts that Malek made the following comments at the April 6 meeting: (1) that Thomas had been verbally abusive to others for the last five years; (2) that Thomas had been making threats and throwing his weight around for at least five years; (3) that Thomas and two other team leaders in the Pit are the biggest sources of complaints Malek received; (4) that Malek was tired of getting complaints about Thomas, did not want Thomas talking the way he did, and that "the rest are afraid" of Thomas; and (5) that Thomas was a "prick," that Malek was "tired of his crap," and was "not going to put upwith his shit anymore." (Doc. No. 33, Second Amend. Compl. ¶¶ 70-71; J.A. at 231-232, 238, 240.)

A day or two after the meeting, Sterk removed Thomas from his assignment as team leader. (J.A. at 125 (Sterk Dep. at 37).) Sterk explained to Thomas that he was going to be reassigned. (J.A. at 126 (Sterk Dep. at 41).)⁴ In March 2010, Sterk returned Thomas to the team leader position. (J.A. 126 (Sterk Dep. at 42-43).) Malek asserts that shortly after Thomas became team leader again, Malek received three phone calls within minutes of each other from individuals expressing anger that Thomas was back in that position. (J.A. at 80-81 (Malek Dep. at 91-95).) Malek called Sterk and explained that having Thomas as team leader would "cause problems" and asked Sterk to remove...