Konen, Jerome v. Int'l Brohd Team 200

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3162
Jerome Konen,
Plaintiff-Appellant,
v.
International Brotherhood of
Teamsters, Local 200,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99 C 619--Charles N. Clevert, Judge.
Argued February 16, 2001--Decided June 25, 2001
Before Easterbrook, Manion, and Diane P.
Wood, Circuit Judges.
Manion, Circuit Judge. Jerome Konen
sued his Union, the International
Brotherhood of Teamsters, Local 200,
alleging that the Union breached its duty
of fair representation in violation of
the Labor Management Relations Act
("LMRA"), and unlawfully retaliated
against him for alleging wrongful conduct
by Union officials in violation of the
Labor Management Relations and Disclosure
Act ("LMRDA"). The Union moved for
summary judgment. The district court
granted the motion, concluding that
Konen’s claim under the LMRA was untimely
and that the Union did not violate the
LMRDA because it never disciplined Konen.
Konen appeals. We affirm.
I.
Jerome Konen was a member of Teamsters
Local Union No. 200 ("Local 200" or "the
Union") when he started working as a
truck driver for Russel Metals in January
1996. Russel Metals and Local 200 were
parties to a collective bargaining
agreement ("CBA") governing the terms of
Konen’s employment. Local 200 is managed
by its president, Seb Busalacchi, and
secretary-treasurer, Frank
Busalacchi.Joseph Cifaldi was the Local
200 business representative assigned to
Russel Metals.
In October 1998, Konen drafted and
circulated a petition among his co-
workers that advocated the replacement of
Cifaldi as the business representative.
The petition read:
To whom it may concern, We as Local 200
members would like our business agent Joe
Cifaldi replaced with a new business
agent. Due to numerous accounts of mis-
representation presently and during
contract negotiation in September of
1997.
Konen personally asked all of his co-
workers to sign the petition. Konen also
delivered a copy of the petition to the
leadman at another Russel Metals
facility, who circulated it among members
of the bargaining unit. When Konen
circulated the petition, he did not
explain what "numerous accounts of
misrepresentation" had occurred.
After he collected the signatures and
before he submitted the petition, Konen
drafted an additional page of notes
involving issues that he wanted to
discuss with Union officials. Because
Konen did not include this page with the
petition, his co-workers did not see the
page of notes when they received the
petition. The additional page stated in
part:
Business agent and union stewards Dan
Ruper & Todd Schill took money from
company to push to get contract through--
quoted by Tod Schill to Damen Albers &
Scott Kasabusky all currently employed at
Castle Metals.
Konen took the signed petition and page
of notes to the Union Hall on November 2,
1998. He handed the petition to Frank
Busalacchi, secretary-treasurer of Local
200. Busalacchi indicated to Konen that
he would look into the matter. Konen then
handed Busalacchi the additional page of
notes, saying, "These are some of the
issues." Konen added, "I don’t know if
it’s true or not. It’s something I was
told. I don’t know if it’s even worth
investigating." Busalacchi told Konen
that it was a serious allegation, and
that he would make sure that it was
addressed immediately.
The following day, Frank Busalacchi gave
the petition and page of notes to Local
200 president Seb Busalacchi ("Seb") and
asked him to look into the allegations as
soon as possible. Seb told Frank
Busalacchi that he planned to set up a
meeting with the Company to find out if
there was any validity to the payoff
accusations. Seb also met with Cifaldi to
discuss the allegations. Seb asked
Cifaldi if he accepted a bribe from
Russel Metals to settle the 1997 CBA.
Cifaldi called the allegation "entirely
false." Seb also asked Cifaldi to notify
the Company of the allegations and to set
up a meeting with the Company to discuss
the matter.
Cifaldi contacted Daniel Ruper, Konen’s
supervisor at Russel Metals. Ruper
participated in the 1997 negotiations as
a Union steward, but has since taken a
supervisory position with Russel Metals.
Cifaldi informed Ruper about Konen’s
allegations, and said that he would
provide Ruper with a copy of the
petition.
On November 4, 1998, Konen was called
into a meeting with Ruper, Plant Manager
Charlie Brown, and Union steward Tom Moe.
At the meeting, Konen admitted that he
authored the bribery allegation. He also
asserted that the separate page of
allegations was not part of the petition,
to which Brown responded, "Well, that
doesn’t matter." Konen then acknowledged
that he had no proof of the alleged
misconduct, and that it was wrong for him
to hand in the page of allegations. Brown
suspended Konen pending further
investigation.
The next day, Konen called Cifaldi to
inform him that he had been suspended.
Cifaldi advised Konen to file a grievance
over the suspension. He also asked Konen
to come to the Union hall for a meeting
with Union and Company representatives
about the bribery allegations.
At the meeting, Cifaldi and Seb
Busalacchi represented Local 200, and
Brown and Ruper represented the Company.
The Union requested Company
representatives to be present because the
allegations in Konen’s notes implicated
both the Union and the Company in
wrongdoing. Seb asked the Company
representatives if they were aware of
information that would substantiate the
bribery allegations; they responded that
they were not aware of any such
information. Seb also asked Konen whether
he had any evidence to substantiate his
allegations. Konen responded by
apologizing, admitting that he had no
evidence to support his allegations, and
that he never should have written
them./1 Konen also asserted that the
page of allegations was not part of the
petition. But he also acknowledged that
he made a mistake, wanted to see the
whole thing go away, and would go to the
workplace to apologize to everyone.
After concluding its investigation,
Russel Metals decided to terminate Konen.
That decision was made by Plant Manager
Brown and Corporate Industrial Relations
Manager Bob Rohrer. Rohrer, who had the
final authority to terminate Konen,
stated that he fired Konen because he be
lieved that Konen’s allegations directly
maligned Russel Metals and the way it
deals with unions. Rohrer concluded that
Konen’s conduct constituted dishonesty
under the terms of the CBA, and that
Konen was subject to immediate discharge.
Russel Metals informed Konen of its
decision in a November 6, 1998 letter
signed by Plant Manager Brown, which
stated in part:
Your employment is being terminated for
dishonesty. You have admitted to
personally preparing and disseminating in
our workplace an employee petition that
contains false, misleading, factually
untrue and serious allegations of
improper and unlawful actions being taken
by representatives of the Company and
Union during the Collective Agreement
negotiations that occurred in 1997.
Before Konen received the letter, Cifaldi
had called him to notify him of his
termination and to advise Konen to file a
grievance. According to Konen, Cifaldi
indicated that he was angry at him, but
he told Konen that his personal feelings
toward him did not matter and that it was
still Cifaldi’s job to represent him.
Konen filed a grievance on November 11,
1998, and a grievance meeting was
scheduled for November 23.
Prior to the grievance meeting, Konen
met with Cifaldi and a Union steward.
Cifaldi asked Konen how he could attack
the termination decision. Konen offered
no suggestions, but reiterated that the
page of notes was not part of the
petition. Konen apologized again about
the matter, and told Cifaldi that he was
willing to do whatever was necessary to
put the incident behind him.
Brown and Ruper represented Russel
Metals at the November 23 grievance
meeting. Brown again asked Konen if he
authored the document containing the
bribery allegations; Konen affirmed that
he did write the allegations. Then Brown
reaffirmed that Konen was terminated
because the document he authored was
dishonest and slanderous. Cifaldi asked
Konen if he had a defense for his
actions. Konen did not give an answer.
Instead, he apologized and said that he
should not have written the statements.
Later that day, Cifaldi sent Konen a
letter informing him that the Union
decided to deny his grievance.
Konen’sattorney wrote to the Union,
requesting Local 200 to submit Konen’s
grievance to arbitration. Local 200’s
counsel responded by letter dated
December 7, 1998, that the Union decided
not to arbitrate Konen’s grievance, and
that the grievance procedure was at an
end. No one has brought internal Union
charges against Konen for the incidents
that led to his discharge.
Konen sued Local 200 on June 3, 1999,
alleging that the Union breached its duty
of fair representation under sec. 301 of
the LMRA, 29 U.S.C. sec. 185(a), and
unlawfully retaliated against him for
alleging wrongful conduct by Union
officials, in violation of the LMRDA, 29
U.S.C. sec. 411 et seq. The Union moved
for summary judgment. The district court
granted the Union’s motion, concluding
that Konen’s LMRA claim failed because it
was untimely, and that his LMRDA claim
failed because Local 200 never retaliated
against Konen, as he was never
disciplined by the Union but has retained
all the rights and status of a full Union
member. Konen appeals.
II.
Konen argues on appeal that the district
court erred in granting summary judgment
for the Union. We review de novo the
district court’s decision to grant
summary judgment for Local 200, Crider v.
Spectrulite Consortium, Inc., 130 F.3d
1238, 1241 (7th Cir. 1997), construing
all facts, and drawing all reasonable
inferences from those facts, in favor of
Konen, the non-moving party. Oest v.
Illinois Dep’t. of Corrections, 240 F.3d
605, 610 (7th Cir. 2001). Summary
judgment is proper 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."
Fed.R.Civ.P. 56(c).
A. The LMRA Claim
The district court granted summary
judgment for the Union on Konen’s LMRA
claim, concluding that the claim was time
barred because Konen failed to file it
within the six-month limitations period.
Konen’s LMRA claim "’accrues from the
time a final decision on [his] grievance
has been made or from the time [he]
discovers, or in the exercise of
reasonable diligence should have
discovered, that no further action would
be taken on his grievance.’" Chapple v.
National Starch & Chemical Co. and Oil,
178 F.3d 501, 505 (7th Cir. 1999)
(quoting Richards v. Local 134, Int’l
Bhd. of Elec. Workers, 790 F.2d 633, 636
(7th Cir. 1986)). According to the
district court, the limitations period
started to run on November 24, 1998, when
Konen was informed by Local 200 that the
Union was denying his grievance. But that
letter did not clearly state whether the
Union would arbitrate the grievance,
which is the final step in the grievance
process under the Union contract. Konen
challenges the district court’s decision,
arguing that the limitations period did
not begin to run until December 7, 1998,
the date of Local 200’s letter stating
that the Union would not proceed to
arbitration with his grievance. Hence,
Konen claims that his suit was timely
filed on June 3, 1999, within the six-
month limitations period beginning on
December 7, 1998. Because it appears that
the November 24 letter was sufficiently
vague about whether the Union had decided
not to proceed to arbitration, and thus
whether "no further action would be taken
on [Konen’s] grievance," Chapple, 178
F.3d at 505, we conclude that the suit
was timely filed. We will thus address
the merits of Konen’s LMRA claim.
Konen contends that the Union breached
its duty of fair representation by
refusing to arbitrate his grievance. To
state a claim against the union for
breach of its duty of fair
representation, a plaintiff must
establish that the union’s action was
arbitrary, discriminatory, or taken in
bad faith. McKelvin v. E.J. Brach Corp.,
124 F.3d 864, 867 (7th Cir. 1997) (citing
Air Line Pilots v. O’Neill, 499 U.S. 65,
67 (1991)). Konen first argues that the
Union made an arbitrary decision not to
proceed to arbitration. In support of his
contention, Konen claims that the
termination letter from Russel Metals
implied that the Company erroneously
believed that he had disseminated his
page of bribery allegations with the
petition,/2 and thus Local 200
overlooked that viable basis to challenge
his termination. Konen also alleges that
the Union’s decision was arbitrary
because he never made a defamatory or
slanderous statement, as he told Frank
Busalacchi that he did not know whether
the bribery allegations that he authored
were "true or not." The Union’s position
is that it denied Konen’s grievance
because he admitted to authoring and
submitting false bribery allegations
without having any evidence to support
the allegations, and because he offered
no defense for his actions.
Our review of whether a union acted
arbitrarily in deciding not to pursue a
grievance or arbitration is "’highly deferential.’"
McKelvin, 124 F.3d at 867 (quoting Air
Line Pilots, 499 U.S. at 78). A union’s
actions are deemed arbitrary only if they
are "so far outside a ’wide range of
reasonableness’ as to be irrational."
McKelvin, 124 F.3d at 867 (quoting Air
Line Pilots, 499 U.S. at 67). Applying
this standard, "we will ’not substitute
[our] judgment for that of the union,
even if, with the benefit of hindsight,
it appears that the union could have made
a better call.’" McKelvin, 124 F.3d at
867 (quoting Garcia v. Zenith Electronics
Corp., 58 F.3d 1171, 1176 (7th Cir.
1995)). "’This wide degree of deference
is warranted because Congress did not
intend courts to interfere with the
decisions of the employee’s chosen
bargaining representative.’" McKelvin,
124 F.3d at 867 (quoting Ooley v.
Schwitzer Div., Household Mfg., Inc., 961
F.2d 1293, 1302 (7th Cir. 1992)).
Therefore, "’so long as a colorable
argument could be made at the time of the
union’s decision to drop its support that
the grievance is meritless (and the union
did not then treat substantively similar
grievances differently from the
plaintiff’s), the decision cannot be
regarded as arbitrary.’" McKelvin, 124
F.3d at 867-68 (quoting Trnka v. Local
Union No. 688, 30 F.3d 60, 61 (7th Cir.
1994)). Konen’s burden on summary
judgment, in other words, is not just to
establish that his position is as
plausible as the Union’s, but to show
that the union’s position "’could
eventually be deemed not even colorable.’"
McKelvin, 124 F.3d at 868 (quoting Trnka,
30 F.3d at 61).
Konen has not met his burden here. At
the November 4 meeting, when Konen
asserted that his page of bribery
allegations was never circulated with the
petition, Plant Manager Charlie Brown
responded, "Well, that doesn’t matter."
Konen admitted that he authored the
bribery allegations, which alleged
criminal misconduct and seriously
impugned Russel Metals, Local 200, and
the participants in the 1997 labor
agreement negotiations. Konen also
admitted that he distributed the bribery
allegations to Local 200 officials, and
that he had no evidence to support the
allegations. Moreover, Konen provided
Cifaldi with no suggestions on how he
could defend his conduct, except to
apologize and admit that he should not
have written the allegations. Because
Konen brought to Union officials a
document containing baseless allegations
of criminal misconduct by Company and
Union officials, and he offered no viable
defense for his actions, the Union’s
decision not to arbitrate his grievance
was not irrational.
We also see no evidence of arbitrariness
by the Union when it decided not to
proceed to arbitration with Konen’s claim
that because he made an oral disclaimer
that he did not know whether his written
allegations were "true or not" when he
submitted them, he was never dishonest,
and never made defamatory or slanderous
allegations against the Company or the
Union. The fact is that Konen submitted
written allegations of serious criminal
misconduct by Company and Union
officials, and that he had no evidence to
support the allegations. Konen’s oral
disclaimer did not alter the written
allegations that he submitted to
Unionofficials. Thus, the Union did not
act irrationally when it decided not to
proceed to arbitration with this claim.
Konen further argues that the Union’s
decision not to arbitrate his grievance
was made in bad faith. Allegations of bad
faith require us to consider the Union’s
subjective motivation behind its decision
not to arbitrate Konen’s grievance.
McKelvin, 124 F.3d at 868. For Konen to
survive summary judgment, he must
identify conduct by Union officials that
would support a reasonable inference of
bad faith. See Crider, 130 F.3d at 1243.
Konen claims that because Local 200
officials, especially Cifaldi, indicated
that they were angry at Konen for making
the bribery allegations, Cifaldi acted in
bad faith when he decided not to
arbitrate Konen’s grievance. But the fact
that Cifaldi may have been angry with
Konen does not support an inference of
bad faith because Konen has offered no
evidence suggesting that Cifaldi’s anger
affected his representation of him. See
McKelvin, 124 F.3d at 868-69. Cifaldi
advised Konen to file a grievance,
consulted with him on how to challenge
his termination, and attended the
grievance meeting. But Konen offered
Cifaldi no defense for his conduct, and
admitted that his allegations were
baseless and that he was wrong to submit
them. The fact that Cifaldi decided not
to arbitrate Konen’s indefensible
position is not evidence of bad faith.
Because Konen has failed to show that the
Union’s decision not to arbitrate his
grievance was arbitrary or made in bad
faith, his LMRA claim fails.
B. The LMRDA Claim
Konen also challenges the district
court’s denial of his LMRDA claim. Title
I of the LMRDA establishes the "rights of
Union members to freedom of expression
without fear of sanctions by the Union."
Finnegan v. Leu, 456 U.S. 431, 435
(1982); see 29 U.S.C. sec.sec. 411 et
seq. Section 411(a)(2) of the Act
provides that "Every member of any labor
organization shall have the right to meet
and assemble freely with other members;
and to express any views, arguments, or
opinions" concerning union policies. 29
U.S.C. sec. 411(a)(2). The Act also
protects members from being fined,
suspended, expelled, or "otherwise
discipline[d]" for "exercising any right
to which [they] are entitled under the
provisions of this chapter." 29 U.S.C.
sec. 529.
Local 200 does not dispute that Konen
exercised expressive rights protected by
the LMRDA. The Union argues, however,
that it never disciplined Konen within
the meaning of the Act. The Supreme Court
has stated that "by using the phrase
’otherwise discipline,’ Congress did not
intend to include all acts that deterred
the exercise of rights protected under
the LMRDA, but rather meant instead to
denote only punishment authorized by the
union as a collective entity to enforce
its rules." Breininger v. Sheet Metal
Workers Int’l Ass’n Local Union No. 6,
493 U.S. 67, 91 (1989). The Court also
determined that the statute’s
"specifically enumerated types of
discipline--fine, expulsion, and
suspension--imply some sort of
established disciplinary process rather
than ad hoc retaliation by individual
union officers." Id. at 91-92. See also
id. at 92 n. 15 ("Congress meant
’discipline’ to signify penalties applied
by the Union in its official capacity
rather than ad hoc retaliation by
individual Union officers.").
Konen contends that the Union
disciplined him in violation of the LMRDA
when Local 200 "caused" his termination
from Russel Metals. According to Konen,
Union officials caused his termination by
misleading Russel Metals into believing
that Konen had disseminated his page of
bribery allegations at the workplace.
Konen claims that his termination letter
supports this contention because the
letter implied that the Company believed
that he disseminated the bribery
allegations at the workplace. Konen also
asserts that Ruper, although no longer a
union member, was a long term union
"brother" of Cifaldi who would take issue
with any member who may challenge
Cifaldi. Thus, Konen is suspicious of
Cifaldi’s call to Ruper at his home about
Konen’s allegations instead of contacting
a representative in the Company’s labor
relations department during normal
business hours. Konen claims that Cifaldi
acted to set him up for termination
rather than to protect him.
Konen’s LMRDA claim is unavailing. First
of all, Konen has not shown that the
Union caused his termination. It is
undisputed that Company officials made
the decision to terminate Konen, and
there is no evidence in the record that
Local 200 representatives misled the
Company into believing that Konen
circulated his page of allegations with
the petition. The apparent error in the
termination letter does not support a
reasonable inference that Union members
misinformed the Company. At the November
4 meeting, plant manager Brown stated
that it did not matter to him that Konen
never circulated his allegations with the
petition. Additionally, Cifaldi’s
decision to investigate the allegations
by first notifying Ruper does not create
a reasonable inference that the Union
conspired with the Company to terminate
Konen. It is undisputed that Rohrer and
Brown (not Ruper) made the decision to
terminate Konen. And the record amply
demonstrates that the Company made a
unilateral decision to discharge Konen
because he authored and submitted to
Union officials a document containing
baseless allegations of criminal
misconduct by Company and Union
officials. All Konen really asserts is
his own belief that Union members
retaliated against him by arranging his
termination, but that does not create a
triable issue. See Camporeale v. Airborne
Freight Corp., 732 F.Supp. 358, 366
(E.D.N.Y. 1990), aff’d, 923 F.2d 842 (2d
Cir. 1990) (union member’s belief that he
was retaliated against was insufficient
to create a triable issue).
Furthermore, Konen was never disciplined
by the Union. Russel Metals made a
unilateral decision to discharge Konen,
which was not a disciplinary act by his
Union that would involve the LMRDA. See
Camporeale, 732 F.Supp. at 366 ("The
LMRDA simply does not offer protection to
a Union member from actions undertaken by
the employer."); see also Gilmore v.
Local 295, Int’l Bhd. of Teamsters,
Chauffeurs, Warehousemen & Helpers of
Am., 798 F. Supp. 1030, 1041 (S.D.N.Y.
1992), aff’d, 23 F.3d 396 (2d Cir. 1994)
("where the employer and not the Union
disciplines a member for exercising his
[sec. 411] rights, the member has no
cause of action against the Union under
the LMRDA"). Moreover, Cifaldi’s decision
to notify Ruper of Konen’s allegations
was an ad hoc decision by a Union
official, and did not constitute
"punishment authorized by the Union as a
collective entity to enforce its rules."
Breininger, 493 U.S. at 91. Konen was
never subjected to official Union
discipline, as he continues to be a
member of Local 200, and there is no
evidence that his membership rights or
status have been diminished in any way.
In fact, he currently works for another
company that is covered by a CBA with
Local 200.
III.
Konen authored and submitted to Union
officials a document containing baseless
allegations of serious criminal
misconduct by Company and Union
officials. When the Company terminated
him, Konen offered his Union no defense
for his actions, except an apology and an
admission that he was wrong to have
produced and submitted the bribery
allegations. The Union was justified in
not challenging his termination based on
this conduct, and thus Konen’s LMRA claim
fails. Konen’s LMRDA claim is also
unavailing because he was never
disciplined by Local 200, as he always
maintained all of the rights and status
of a full Union member, and there is no
evidence that the Union caused his
termination. We AFFIRM the district court.
FOOTNOTES
/1 Konen claimed that he wrote the bribery allega-
tions after Damon Albers, a former Russel Metals
employee, told him that Todd Schill, another
former Russel Metals employee, Unionsteward and
member of the bargaining committee, told him that
the committee (Schill, Ruper and Cifaldi) had
accepted money from the Company to settle the
1997 CBA. Konen further testified that Albers
also told him that Schill made the same statement
to another former Russel employee, Scott Kasa-
buske. Albers, Schill and Kasabuske submitted
affidavits in which they denied making or hearing
any of these statements alleged by Konen.
/2 The letter stated: "You have admitted to person-
ally preparing and disseminating in our workplace
an employee petition that contains false, mis-
leading, factually untrue and serious allegations
of improper and unlawful actions being taken by
representatives of the Company and Union during
the [1997] Collective Agreement negotiations."