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Tessema v. United Steel

United States District Court, D. Nevada

February 8, 2017

TADIOS TESSEMA, INDIVIDUALLY, and as the former UNIT CHAIR of the FRIAS TRANSPORTATION BARGAINING UNIT, LOCAL 711A; UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, Plaintiff,
v.
UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION; LEO W. GERARD; ROBERT LAVENTURE; MANUEL ARMENTA; CHRIS YOUNGMARK; ACE CAB, INC.; UNION CAB CO.; VEGASWESTERN CAB, INC.; A-N.L.V. CAB CO.; VIRGIN VALLEY CAB COMPANY, INC.; FRIAS TRANSPORTATION MANAGEMENT; DOES 1-X AND ROES XI-XX, Defendants.

          ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (ECF NOS. 108, 109, 113)

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         Tadios Tessema brings this suit against his union and his former employer because he believes he was fired in violation of a collective bargaining agreement (“CBA”). Tessema drove taxis for the defendants and was a member of the defendant union. When his employer and union entered into a new CBA, Tessema and a number of other drivers were upset by its terms and decided to park their taxis and go on strike. But the CBA governing Tessema's employment expressly stated that he could not strike, and that if he was unhappy with the terms of the CBA, he needed to challenge them in the proscribed grievance process. So when Tessema refused to stop striking, his employer fired him for breaching the CBA's no-strike provision.

         After my prior order dismissing one of Tessema's claims, he has two remaining: (1) a hybrid claim under the Labor-Relations Management Act (“LMRA”) that his employer breached the CBA and that the union unfairly represented him, and (2) another claim under the LMRA that his union wrongly revoked his union position. The defendants move for summary judgment on both claims, and I grant their motion.

         As to his first claim, Tessema has not created a triable issue of fact as to either his employer's breach of the CBA or whether his union unfairly represented him. Tessema contends that his employer could not fire him for striking because the CBA's no-strike provision applied only to the union as a whole, not to him as an individual. But the CBA's language makes clear that it applied to Tessema individually; no other interpretation makes sense. Further, the union made every effort to fairly represent Tessema, and he provides no evidence or analysis suggesting otherwise. Tessema may have had legitimate reasons to oppose the CBA, and he may not have supported its no-strike provision. But the Supreme Court has been clear: “The employee may disagree with many of the union decisions, but [he] is bound by them.”[1] As to his second claim, the union offers undisputed evidence that it revoked Tessema's union position because he violated the CBA, not for any improper purpose. I therefore grant defendants' motions for summary judgment.

         I. BACKGROUND

         A. Tessema joins a strike against his employer.

         Tessema began driving a cab for A-N.L.V. Cab Co. (“ANLV”) in 2007.[2] While working at ANLV, Tessema was a member of the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Worker's International Union (“the Union”) and an elected Unit Chair of his local chapter.[3]

         In 2012, the Union and ANLV began negotiating a new CBA because the previous one was set to expire. After the Union's members rejected several proposed agreements, the Union finally agreed to one in 2013.[4] The Union chose to approve this agreement without sending it to its membership for a vote, which caused a stir among the membership.

         Tessema and a number of other cab drivers told the Union that they opposed some of the CBA's new terms and that it should be renegotiated.[5] The Union responded with a letter reminding Tessema and the other drivers that the new CBA had been properly approved and that the CBA's no-strike provision meant that they would face discipline if their protests turned into a strike.[6] Despite the Union's warnings, Tessema and about 200 others rallied on the Las Vegas Strip during their work shift and picketed in front of ANLV's headquarters.[7] The Union removed Tessema from his Unit Chair position because his participation in the strike violated the CBA.[8]Tessema and many of the other strikers refused to go back to work until the CBA was renegotiated. Tessema signed a letter stating that he joined this “wild-cat strike to demand justice.”[9]

         B. The cab company fires Tessema because of his participation in the strike.

         The Union reminded the strikers that their CBA prohibited strikes, and encouraged them to return to work.[10] Tessema refused, so ANLV fired him (along with 371 others).[11] About a week later, the Union filed a grievance on his behalf, which stated that he was fired without cause. Over the following two months, the Union and ANLV worked out a settlement agreement allowing many of the drivers to return to work.[12] But ANLV opposed letting Tessema and the other instigators of the strike come back.

         The Union still did not give up on Tessema's case. It arranged for Tessema to meet with counsel so that the parties could explore possible options for reaching an agreement with Tessema's employer. But Tessema refused to cooperate.[13] After he missed several meetings with counsel, the Union decided to withdraw his grievance.[14] After all, without Tessema's cooperation it would be impossible to move forward on an agreement with ANLV.

         C. The relevant terms of the CBA

         The CBA states that it is an agreement between the Union and the employers (several cab companies, including ANLV).[15] The Union entered into the agreement on behalf of its members to promote “the efficiency, economy and profitability of operation, . . . uninterrupted service to the public . . . [and] the peaceful and equitable disposition of grievances.”[16] In other words, the Union entered into the agreement because it recognized an orderly process for settling disputes was beneficial for its members.

         In line with these principles of continuous service and efficient grievance processing, the CBA contains a “no-strike” provision-Article 35. This no-strike provision is separated into several sections, a few of which are relevant here. The first section states that “[t]he Union . . . agrees it will not call, engage in, encourage, and/or sanction any strike.”[17] The third section states that “neither the Union collectively, nor any employee individually, may honor any picket line.”[18] Crucially, the fourth section states that “any employee who violates any provision of [Article 35]” may be disciplined.[19]

         II. ANALYSIS

         I previously granted judgment on a claim in this case.[20] Tessema's only remaining causes of action are (1) that the Union and his employer are liable for his termination under Section 301 of the LMRA, and (2) that the Union is liable for suppressing his speech in violation of Section 101 of the LMRA.

         A. Summary judgment standard

         Summary judgment is appropriate when the pleadings and discovery on file, “together with the affidavits, if any, show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”[21] For summary judgment purposes, the court views all facts and draws all inferences in the light most favorable to the nonmoving party.[22]

         If the moving party demonstrates the absence of any genuine issue of material fact, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”[23] The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.”[24] She “must produce specific evidence, through affidavits or admissible discovery material, to show” a sufficient evidentiary basis on which a reasonable fact finder could find in her favor.[25]

         A party must support or refute the assertion of a fact with admissible evidence.[26] As the summary judgment procedure is the pretrial functional equivalent of a directed-verdict motion, it requires consideration of the same caliber of evidence that would be admitted at trial.[27] Thus, it is insufficient for a litigant to merely attach a document to a summary judgment motion or opposition without affirmatively demonstrating its authenticity.

         B. Tessema fails to create a triable issue as to his § 301 claim.

         A § 301 claim is often referred to as a hybrid-claim because the plaintiff must prove both that his employer and his union breached their respective duties towards him. Tessema must prove that his employer breached its duty by violating the CBA, and he must also prove that the Union breached its duty by failing to fairly represent him. Tessema fails on both prongs so his claim fails for two independent reasons.

         1. There is no genuine dispute: ANLV did not breach the CBA when it fired Tessema.

         Tessema argues that ANLV breached the CBA by firing him without cause. Although Tessema does not dispute that ANLV fired him for striking, he contends that the CBA only allowed ANLV to fire him for participating in Union-sanctioned strikes, not a wild-cat strike (a strike not officially sanctioned by the Union as a whole) like the one he was in. Tessema rests this argument on the CBA's statement in Section 1 of the no-strike provision that the “Union . . . will not . . . strike”-it does not say the “individual employees will not strike.” Tessema believes that the CBA's use of “Union” instead of “individual employee” indicates that the parties never intended that the CBA would bar individual employees like him from striking. He points to Section 2 of the no-strike provision, the prohibition on honoring picket lines, which specifically refer to “employees individually.” Tessema concludes: if the no-strike provision in Section 3 was generally meant to apply to individual employees, it would have referred to “individual employees” like Section 2.

         But Tessema's argument is foreclosed by both the CBA's language and controlling precedent. I must interpret the CBA in light of its language and the agreement as a whole.[28]Looking to the CBA as a whole, it becomes clear that the parties intended to prevent members from striking and stopping work generally, not just strikes or stoppages the Union initiated.[29] The CBA repeatedly emphasizes that the parties entered the agreement to ensure “continuous” service of the taxis and an efficient process to handle grievances in a consistent manner. The whole point of the CBA is to provide a regimented process for handling grievances that does not interfere with the cab company's consistent service.[30] Reading the CBA to allow Union members to strike and walk off the job anytime they have a grievance-so long as the Union that represents them did not expressly allow the stoppage-runs counter to the manifest intent that the parties expressed throughout the CBA.[31]

         Other language in the CBA likewise suggests that individual members are bound by the no-strike clause. Section 4 of the no-strike provision says that “any employee” may be disciplined who violates “any provision of this article.” It goes on to say that the Union must take action against “any employee” violating provisions of the no-strike clause. The CBA thus expressly states that individual employees are prohibited from violating the provisions of the no-strike clause. If Tessema is right that the provisions of the article only apply to the Union as a whole, Section 4 would be superfluous.[32] And Article 20 of the CBA would also be superfluous, because it expressly allows the employer to discipline an employee for engaging in a “strike” or “work stoppage.”[33] Finally, in the only section that Tessema points to for support-which distinguishes between the Union as a whole and individual employees-the Union is referred to as “the Union collectively.” So to the extent the CBA meant to use language consistently (as Tessema suggests), if it meant to refer to the Union collectively when prohibiting strikes, it would have said “the Union collectively will not strike, ” which it did not.[34]

         More importantly, the Ninth Circuit and other circuits have repeatedly rejected arguments that a CBA's no-strike language might apply only to the union as a whole and not to individual employees. Courts frequently hold that union members are bound by CBA no-strike clauses.[35]Tessema does not point to a single case in any jurisdiction holding that individual members are not bound by a CBA's no-strike clause like ...


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