Opinion
Case No. 3:02CV7017
January 24, 2003
ORDER
This is a suit by a union member against his union, Local 18 of the International Union of Operating Engineers (the "Union"). Plaintiff claims that a union official deprived him of his right to speak at union meetings, in violation of 29 U.S.C. § 411(a)(2) and the Constitution of the International Union of Operating Engineers and Local 18's bylaws. This court has jurisdiction pursuant to 28 U.S.C. § 1332. Pending is defendant's motion for summary judgment. For the following reasons, defendant's motion shall be granted.
BACKGROUND
Local 18 is the exclusive bargaining representative for Operating Engineers within the State of Ohio and is divided into six districts. District 2 includes Toledo, Ohio. Plaintiff has been a member of Local 18 and District 2 since 1971.
In January, 2002, plaintiff brought suit against the Union alleging various claims based on a variety of incidents.
In 1993, plaintiff alleges that Union officials denied Union members access to the Union newspaper, the Buckeye Engineer. As a response to plaintiff's letters concerning the incident, plaintiff claims the Union changed its bylaws to grant Union officials the sole authority to decide the content of the newspaper.
At the June, 1998, District 2 monthly membership meeting, plaintiff attempted to discuss an issue but was ruled out of order by Chairman and District 2 Representative Charles LaFaso. Later that month at the State Executive Board meeting, plaintiff claims he discussed this incident with Local 18 President Tom Louis who assured him that any member should be allowed to discuss issues of importance at district meetings. After the meeting adjourned, plaintiff claims he advised President Louis of "longstanding and continuing problems of representation in district 2." Complaint at ¶ 8.
In November, 1998, President Louis met with plaintiff and other District 2 members in Perrysburg, Ohio, to discuss various District 2 representation issues. According to defendant, Louis investigated these concerns and followed up with plaintiff. According to plaintiff, defendant did nothing about the issues raised at the meeting.
In early 2000, plaintiff filed a complaint against Union Business Agent Gary Siesel over a jurisdictional grievance. President Louis responded to plaintiff's complaint, but no recourse was taken. Plaintiff thereafter filed charges against President Louis claiming defamation. Local 18's Executive Board found the charges to be without merit.
At the April, 2000, District 2 membership meeting, plaintiff claims he attempted to make a motion but was informed that motions were not allowed. He claims he was told that proposals must be submitted to the Union's Cleveland, Ohio, office in written form.
Defendant argues that plaintiff's motion at the April, 2000, meeting concerned adding a pop machine to the Union hall. Plaintiff does not deny that he moved to add the pop machine. He claims, however, that he made this motion at the July, 2001, meeting.
At the October, 2000, District 2 monthly meeting, plaintiff was permitted to introduce a motion. According to plaintiff, the motion was read, voted on, and passed, but no further action was taken on the issue.
At the May, 2001, District 2 meeting, plaintiff attempted to make a motion but was ruled out of order by Chairperson LaFaso. The motion called for a yearly review of the Union's business agent's performance to be conducted by a vote of the membership at a district meeting. Plaintiff successfully appealed the Chair's overruling, however, and the motion was read, voted on, and passed by secret ballot.
At the June, 2001, District 2 meeting, plaintiff requested Chairman LaFaso amend the minutes for the May, 2001, meeting. According to plaintiff, the minutes simply referred to the motion he initiated at the May, 2001, meeting being made and passed, without reference to the nature or content of the motion. Plaintiff wanted the minutes amended to show that the Chair had originally ruled the motion out of order and that the ruling had been appealed to the members and overturned. The Chairman refused.
At the July, 2001, District 2 meeting, plaintiff claims Chairman LaFaso stated that membership meetings were informational only, that the Chair did not have to follow Roberts' Rules of Order, and that no motions or votes would be allowed. Plaintiff also alleges that he moved for the pop machine at this meeting, to which the chair replied that there would be no motions, votes, or pop machines.
Plaintiff filed this suit in January, 2002. His complaint makes three claims.
Count one is under § 101(a)(1) and (a)(2) of Title I of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 411(a)(1) and (a)(2). Plaintiff alleges defendant has consistently denied him the right to exercise free speech and assembly at union meetings.
Count two is under the International Union constitution and Local 18's bylaws. Plaintiff alleges defendant has breached the constitution and bylaws by refusing to allow plaintiff and other members to participate in the monthly District 2 meetings, by infringing on plaintiff's right to free speech and assembly and equal treatment, and, more specifically, by informing members at the July, 2001, meeting that membership meetings were for informational purposes only.
Plaintiff's third claim was for breach of the duty of fair representation. Plaintiff has since voluntarily dismissed this claim.
Defendant moves for summary judgment on the remaining claims. Defendant has also filed counterclaims, and plaintiff has moved for summary judgment on defendant's counterclaims. Further briefing on plaintiff's motion, however, has been held in abeyance pending the outcome of defendant's motion for summary judgment.
STANDARD OF REVIEW
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting FED. R. CIV. P. 56(e)).
Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324.
In deciding the motion for summary judgment, the evidence of the non-moving party will be accepted as true, all doubts will be resolved against the moving party, all evidence will be construed in the light most favorable to the non-moving party, and all reasonable inferences will be drawn in the non-moving party's favor. Eastman Kodak Co. v. Technical Servs., Inc., 504 U.S. 451, 456 (1992). Summary judgment shall be rendered only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
DISCUSSION I. § 411
The LMRDA was Congress' first major attempt to regulate the internal affairs of labor unions. Local No. 82, Furniture and Piano Moving, Furniture Store Drivers, Helpers, Warehousemen and Packers v. Crowley, 467 U.S. 526, 528 (1984). Title I of the Act, §§ 411-15, provide union members with an exhaustive "Bill of Rights" enforceable in federal court. These rights are designed to guarantee every union member equal rights to vote and otherwise participate in union decisions, freedom from unreasonable restrictions on speech and assembly, and protection from improper discipline. Id. at 536-37.
Sections 411(a)(1) and (a)(2) provide:
(a)(1) Equal rights
Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization's constitution and bylaws.
(2) Freedom of speech and assembly
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; and to express at the meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.
Section 412 provides the enforcement mechanism for individual union members in federal district court.
As the Sixth Circuit explained in Knox County Local, Nat'l Rural Letter Carriers' Ass'n. v. Nat'l Rural Letter Carriers' Ass'n. 720 F.2d 936, 938 (6th Cir. 1983):
This "bill of rights of members of labor organizations" is modeled after the First Amendment and guarantees to members the right of free speech and assembly, and the right to participate in union deliberations. The legislative history of §§ 411 clearly demonstrates that the bill's sponsors sought to protect the rights of union members to assemble and to voice their views on union affairs without fear of union reprisal. The bill was designed to allow members to participate actively in a "democratic" union.
A court's inquiry under § 411 is guided by First Amendment free speech principles. Shimman v. Miller, 995 F.2d 651, 653 (6th Cir. 1993) (citing Knox County Local, 720 F.2d at 938-39). The scope of the section's protection, however, does not extend as far as that of the Constitution. United Steelworkers of America v. Sadlowski, 457 U.S. 102, 109 (1982). For example, union rules must only be "reasonable" to be valid under § 411(a)(2), whereas governmental regulations must further a compelling governmental interest and be narrowly tailored to be valid under the First Amendment. UFCW Local 911 v. UFCW Int'l, 301 F.3d 468, 473 (6th Cir. 2002).
Defendant argues, and plaintiff has conceded, that the 1993 denial of access to the Buckeye Engineer and the June, 1998, and November, 1998, District 2 monthly meetings cannot be considered for plaintiff's § 411 claim. Section 411 claims are governed by a state's general personal injury limitations period. Reed v. United Transp. Union, 488 U.S. 319, 323 (1989). The Ohio residual personal injury statute of limitations is two years. O.R.C. § 2305.10; see also Allgood v. Elyria United Methodist Home, 904 F.2d 373, 378 (6th Cir. 1990). Thus, only the incidents after January, 2000, can be considered.
The claims that remain arise from incidents at the April, 2000; October, 2000; May, 2001; June, 2001; and July, 2001, monthly District 2 meetings. According to plaintiff, his right to participate in and vote at these meetings, and his right to be heard at such meetings, as guaranteed under § 411(a)(1) and (a)(2), were violated.
A. Motion to Add the Pop Machine
Regardless of whether this incident occurred at the April, 2000, monthly meeting as defendant argues, or the July, 2001, meeting as plaintiff argues, the parties agree on the essentials. Plaintiff moved to add a pop machine to the Union hall. The Chair ruled plaintiff out of order. The Chair also informed plaintiff that there was pop available for all members in the Union hall refrigerator and that the proper procedure for this kind of request was to submit a written proposal to the Union's Cleveland office.
Incidentally, in his complaint, plaintiff alleges he made a motion at the April, 2000, meeting but was informed that motions were not allowed. The complaint does not specify the content of the motion. Only in his affidavit does plaintiff argue he made a motion for a pop machine at the July, 2001, meeting. This motion is not mentioned in his complaint.
Plaintiff argues that, as a result of being ruled out of order, he was denied his right to speak at Union meetings in violation of § 411(a)(2).
Defendant argues that plaintiff's request did not relate to the object and purpose of the Union meeting. Thus, under Roberts' Rules of Order, which require that meetings relate to the object and purpose of the organization, the Chair was justified in ruling plaintiff out of order. Moreover, defendant argues that its bylaws give the Chair authority over Union meetings. Article XIX, § 6 states: "The presiding officer shall preserve order and pronounce the decision of the meeting on all subjects. He shall decide all questions of order without debate, subject, however, to an appeal to the meeting by any member."
As noted above, § 411(a)(2) provides that Union members may "express any views, arguments, or opinions . . . subject to the organization's established and reasonable rules pertaining to the conduct of meetings." Certainly, this court is not going to second guess whether it was reasonable for the chair, under his powers as stated in the Union bylaws, to rule a request for a pop machine out of order. Unions must have the authority to maintain the order and decorum needed to dispose of business at their meetings.
Thus, plaintiff's motion for the pop machine was properly ruled out of order. A request for that sort of amenity is properly to be made to a union's administration or its board of trustees, not a general membership meeting. See e.g., Corea v. Welo, 937 F.2d 1132, 1140 (6th Cir. 1991) ("Section 101(a)(2) of [the] LMRDA guarantees that union members have the right to assemble freely with other members and to express their views on business properly before a meeting of the union membership.") (emphasis added); Knox County Local, 720 F.2d at 938-39 ("The legislative history of Title I and the interpretations of that history . . . compel a broad reading of the rights conferred by §§ 101(a)(1) and (2). . . . The latitude granted to us by Title 1 clearly does not permit unjustifiable judicial interference with internal union affairs.").
Plaintiff argues defendant's use of the Union's constitution and bylaws is not "reasonable" under § 411(a)(2). Because art. XXIV of the Union constitution states that "Roberts' Rules of Order shall be the parliamentary authority on all procedures not covered by the Constitution, Laws, Rules, Obligation and Ritual," and because Roberts' Rules of Order permit members to introduce motions when it is time for "new business," plaintiff argues that the chair had no authority to deprive him of the right to introduce motions at Union meetings. Thus, by ruling plaintiff out of order, the chair was not following "established and reasonable rules pertaining to the conduct of meetings" under § 411(a)(2).
Defendant argues, however, that bylaw art. XIX expressly gives the chair authority over the order of meetings. Thus, art. XXIV of the Union constitution is not applicable.
The standard applied in reviewing a union's interpretation of its constitution an bylaws was stated in Vestal v. Hoffa, 451 F.2d 706, 709 (6th Cir. 1971): "Courts are reluctant to substitute their judgment for that of union officials in the interpretation of the union's constitution, and will interfere only where the official's interpretation is not fair or reasonable." A union's interpretation is thus entitled to "substantial deference," and will be disturbed only when it is not fair or reasonable. United Bhd. of Carpenters Joiners of Am., Dresden Local 267 v. United Bhd. of Carpenters Joiners of Am., South Central Ohio Dist. Council, 992 F.2d 1418, 1423 (6th Cir. 1993).
The Union's interpretation of the chair's powers over the conduct and order of a district meeting are not unfair or unreasonable. Thus, the chair could properly rule plaintiff's motion out of order.
Plaintiff's claim, moreover, rests on a misunderstanding of the rights guaranteed by the LMRDA. After finding that "First Amendment principles may be helpful" but "not controlling," the Supreme Court in Sadlowski discussed Congress's intent in enacting § 411(a)(2):
Congress adopted the freedom of speech and assembly provision in order to promote union democracy. It recognized that democracy would be assured only if union members are free to discuss union policies and criticize the leadership without fear of reprisal. Congress also recognized that this freedom is particularly critical, and deserves vigorous protection, in the context of election campaigns.457 U.S. at 111-12.
The facts of this case simply do not implicate union democracy.
Furthermore, as the Seventh Circuit explained in Grant v. Chicago Truck Drivers, Helpers Warehouse Workers Union, 806 F.2d 114, 117 (7th Cir. 1986): "Nothing in the language of this statute creates a substantive right on behalf of members to attend regularly scheduled general meetings of union members."
If there is no substantive right in § 411(a)(2) to assemble for a union meeting, there is certainly no substantive right to have all motions heard — especially those that do not relate to the object and purpose of the Union. See e.g., Broomer v. Schultz, 239 F. Supp. 699, 702 (E.D.Pa. 1965) (Where union member's motion that stewards be elected had been defeated for second time only month before, local president's refusal to submit another identical motion was not interference with member's right of free speech but was reasonable parliamentary ruling).
Plaintiff may have had a better claim if Union officials had disallowed motions altogether; then perhaps plaintiff's right to speak may have been impaired. Although plaintiff seems to make this argument, he has no facts to support it. Plaintiff prevailed on two motions — at the October, 2000, and May, 2001, meetings, respectively. Thus, there was no ban on motions at district meetings. Plaintiff does allege Union officials threatened to disallow all further motions at the July, 2001, meeting. But the record is not developed on this issue. Plaintiff had the obligation to argue the significance of this statement under § 411(a)(2). Not having done so, plaintiff cannot obtain relief — to any extent he is trying to do so — as to this statement by the chair.
Because plaintiff has not shown how the chair's denial of his motion for a pop machine violated § 411(a)(2), defendant's motion for summary judgment as to any claim based on plaintiff's failure to be heard at Union meetings shall be granted.
B. Amending the Minutes
By not revising the minutes of the May, 2001, monthly meeting, the union, plaintiff claims, prevented him from speaking to those not present at the May meeting, in violation of § 411(a)(2). D e f e n d a n t demonstrates, however, that plaintiff failed to object to the reading of the May minutes and failed to raise the issue of his May motion until virtually the end of the June meeting, during the discussion of "Unfinished Business."
Thus, it is not necessary to reach the merits of plaintiff's contention that minutes should accurately reflect the substance of motions. Plaintiff did not make his objection to the minutes in a timely manner. The minutes of the later meeting show that there was no objection to the minutes of the prior meeting. Plaintiff, instead, waited until the end of the meeting, during the period for raising unfinished business. The chair properly could rule plaintiff's request out of order.
As with plaintiff's first claim, a union member's free expression rights during a union meeting are "subject to the organization's established and reasonable rules pertaining to the conduct of meetings." § 411(a)(2). This court will not second guess reasonable rules that allow district chairs to conduct an orderly meeting.
Defendant's motion for summary judgment shall, therefore, be granted as to this claim.
C. Remaining Claims
Plaintiff lists several incidents at monthly Union meetings and then concludes that his § 411 rights have been violated. With the exception of the two claims noted above, plaintiff has not explained or demonstrated what specific free speech rights he is invoking or how they have been impaired.
For example, having prevailed on the motion for the annual review of the business agent's performance, in May, 2001, plaintiff cannot now make a claim that he was prevented from speaking at that meeting.
Also, plaintiff alleges that the chair stated at the July, 2001, meeting that district meetings were only informational and that from then on, no motions would be accepted and no votes taken. If true, these statements could possibly support a claim under § 411(a)(1) and (a)(2). Plaintiff, however, has not addressed the significance of this statement under § 411(a)(1) and (a)(2). Plaintiff had the obligation to develop the record on this issue. Plaintiff failed to support this argument with anything more than his affidavit and deposition testimony. Several courts have declared that "self-serving affidavits without factual support in the record will not defeat a motion for summary judgment." Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001) (citation omitted); Wolfe v. Village of Brice, 37 F. Supp.2d 1021, 1026 (S.D.Ohio 1999) ("Self-serving affidavits, alone, are not enough to create an issue of fact sufficient to survive summary judgment.") (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
Thus, because the deference due to the Union in using "reasonable rules pertaining to the conduct of meetings," a finding that § 411 was not violated is required. Defendant's motion shall, therefore, be granted.
II. Breach of the Union Constitution and Bylaws
Plaintiff also argues that the Union violated the terms of the International Union of Operating Engineer's constitution and Local 18's bylaws. Defendant has moved for summary judgment arguing lack of subject matter jurisdiction, statute of limitations, and that plaintiff's claims fail "under Local 18's right to enforce reasonable rules and regulations under its Constitution and By-Laws." Reply Br. at 10.
A. Subject Matter Jurisdiction
Defendant argues that an individual union member cannot bring an action under § 301(a) of the Labor-Management Relations Act (LMRA), 29 U.S.C. § 185(a), against his or her union for breach of either a union constitution or charter. See e.g., Trail v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen Helpers of Am., 542 F.2d 961 (6th Cir. 1976). Thus, according to defendant, this court lacks subject matter jurisdiction and plaintiff's claims fail as a matter of law.
Section 301(a) states:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in the Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
The Supreme Court, however, effectively overruled the Trail decision in Wooddell v. Int'l Bhd of Electrical Workers, Local 71, 502 U.S. 93 (1991). The Court in Wooddell concluded that the subject matter jurisdiction conferred on the federal courts under § 301(a) extends to suits on union constitutions brought by individual union members. Id. at 98. The Supreme Court reasoned that the international constitution of a union, as a contract between the international organization and its locals, is a contract between two labor organizations within the meaning of § 301. Id. at 101.
As Judge Posner explained in Korzen v. Local Union 705, Int'l Bhd. of Teamsters, 75 F.3d 285, 288 (7th Cir. 1996), the decision in Wooddell means that Union constitutions are contracts within the scope of section 301 and members of the union are entitled to sue to enforce the contract-constitution as a third-party beneficiary. The Sixth Circuit has interpreted Wooddell similarly. See Tinsdale v. United Assn. of Journeymen and Apprentices of the Plumbing and Pipefitting Ind., 25 F.3d 1308, 1310 (6th Cir. 1994) ("It is now clear that an individual union member may bring a suit under § 301 against a union to enforce a union constitution.") (citing Wooddell, 502 U.S. at 93).
The court in Korzen further explained the jurisdictional difference between enforcing provisions of an international union constitution and provisions of a local union constitution or its local bylaws. Only an international union's constitution can be a contract between labor organizations within the meaning of § 301 because:
an international's constitution is a contract between the international and its locals. The constitution of a local union, in contrast, is a contract between the union and its members, in the same way that a corporate charter is a contract between the corporation and its shareholders (as well as between the state and the corporation and among the shareholders). A suit on a contract between a labor organization and a member is not within the scope of section 301. So there is federal jurisdiction over the plaintiffs' claim of breach of the international's constitution, of which they as members of the union are third-party beneficiaries, but not over their claim of breach of the local's constitution. That claim is a straightforward claim of breach of contract under state common law.
Korzen, 75 F.3d at 288; see also Argentine v. United Steel Workers Assn., 23 F. Supp.2d 808, 819 (S.D.Ohio. 1998) ("Since Plaintiffs brought claims against the International for its breach of the Local's bylaws, this Court does not have jurisdiction over those claims.").
Following the reasoning of Korzen, this court has independent subject matter jurisdiction over plaintiff's claims based on the International Union constitution. The claims based on Local 18's bylaws, however, are breach of contract claims under state common law, and this court does not have independent subject matter jurisdiction.
Defendant relies, at least in part, on Agosti v. Libbey-Owens-Ford Co., 888 F. Supp. 840 (N.D.Ohio. 1994), where this court found that § 301 does not provide federal jurisdiction over contracts between union members and unions. That decision, however, did not decipher between enforcing an international union's constitution and a constitution or bylaw of a local union. To the extent the decision in Agosti differs with the decisions in Tinsdale or Korzen, it is displaced.
Notwithstanding, the Supreme Court has ruled that the power to hear pendent claims exists when the state and federal claims "derive from a common nucleus of operative fact." United Mine Workers of America v. Gibbs, 383 U.S. 715, 725(1966). Because this court finds that plaintiff's state law claims involve the same operative facts as those that are involved in proof of plaintiff's federal claims, it will therefore consider plaintiff's state law claims.
B. Statute of Limitations
Defendant argues a six month limitation period held applicable to hybrid § 301 claims in DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151 (1983), should apply to plaintiff's claims based on the Union constitution and bylaws. Plaintiff argues the proper statute of limitations is the fifteen year limitations period for written contracts in Ohio.
A "hybrid" suit is potentially two suits — a suit against the employer for breach of the collective bargaining agreement under § 301 and a suit against the union for breach of the duty of fair representation under the National Labor Relations Act (NLRA). These two claims are inextricably interdependent; the plaintiff must prove the same elements whether he or she chooses to sue one or both of the potential defendants. DelCostello, 462 U.S. at 164-65. A straightforward § 301 breach of contract claim is merely a suit for breach of a labor contract, whether that contract be a collective bargaining agreement or union constitution. See Wooddell, 502 U.S. at 102.
In DelCostello, the Supreme Court held that there is no generally applicable limitations period for § 301 claims; instead, the appropriate limitations period depends on particular claims raised in the case. Id. at 162. The Court concluded that "Congress intended that the courts apply the most closely analogous statute of limitations under state law." Id. at 158.
Although the Sixth Circuit has not addressed the question of the limitations period applicable to a Wooddell claim, the Ninth Circuit has, and it has held that the same six-month period applies. Moore v. Local Union 569 of Int'l Bhd. of Electrical Workers, 989 F.2d 1534, 1541-42 (9th Cir. 1993; see also Brown v. Local 701 of the Int'l Bhd of Electrical Workers, 996 F. Supp. 781, (N.D.Ill. 1998) (finding a six month limitation period applicable to a Wooddell claim).
The Ninth Circuit explained:
In DelCostello, the Supreme Court held that the appropriate limitations period for "hybrid" section 301 suits in which an employee sues the union for breach of the duty of fair representation is the six month period in section 10(b) of the NLRA. Although DelCostello did not involve a "pure" section 301 breach of contract action as presented here, the Court did observe in a footnote that "even if this action were considered as arising solely under § 301 . . . the objections to use of state law and the availability of a well-suited limitations period in § 10(b) would call for application of the [Six Month Statute of Limitations]."
Moore, 989 F.2d at 1541 (quoting DelCostello, 462 U.S. at 159 n. 12)
This court is mindful of the fact that the Sixth Circuit has held that an individual as third party beneficiary of a collective bargaining agreement is not subject to the six month limitations period applied in DelCostello, but rather the most analogous state limitations period, which is Ohio's fifteen year limitations period for written contracts. Anderson v. AT T, 147 F.3d 467, 474 (6th Cir. 1998).
However, a Wooddell claim to enforce a union member's rights as third-party beneficiary to the contract between the international union and the local has far more in common with a hybrid § 301 claim by a union member against the union and the employer and a breach of the duty of fair representation claim by a union member against the union than it does with a union member's claim against an employer for breach of the collective bargaining agreement.
Thus, the six month statute of limitations period applies to plaintiff's claims based on the International Union constitution. The only incident that can be considered for plaintiff's § 301 claim is therefore the July, 2001, monthly meeting.
As to plaintiff's claims based on Local 18's bylaws, the applicable statute of limitations is Ohio's fifteen year limitations period for actions on written contracts. O.R.C. § 2305.06. Thus, all the alleged incidents in plaintiff's complaint can be considered for these claims.
C. Merits A. Breach of the International Union Constitution
Using the same arguments as in his § 411 claims, plaintiff argues the incidents at the July 9, 2001, meeting violated two articles of the International Union constitution.
Article XXVI, § 1(c) states that a local union may proceed under a district administration form of government and shall:
Provide for the holding of regular monthly or quarterly district meetings with authority limited to making recommendations to the Local Union, initiating legislation to the Local Union, holding trials of members and electing such representation to the Local Executive Board, committees and similar bodies as may be provided under its bylaws.
Article XXIV, subdivision 14 provides:
Roberts' Rules of order shall be the parliamentary authority on all procedure not covered by the Constitution, Laws, Rules, Obligation and Ritual of the International Union of Local Unions subordinate thereto.
Plaintiff argues that the chair's statement that monthly meetings are for informational purposes only and that there would be no motions or votes violates these articles. Defendant denies the chair made these statements. Chairperson LaFaso testified that, at the July, 2001, meeting, he indicated the meetings were informational type meetings but that recommendations would be taken if appropriately presented. LaFaso Dep. at 44.
Similar to his § 411 claim, plaintiff had the obligation to develop the record on this issue and failed to do so. Plaintiff failed to support this argument with anything more than his affidavit and deposition testimony. Several courts have declared that "self-serving affidavits without factual support in the record will not defeat a motion for summary judgment." Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001) (citation omitted); Wolfe v. Village of Brice, 37 F. Supp.2d 1021, 1026 (S.D.Ohio 1999) ("Self-serving affidavits, alone, are not enough to create an issue of fact sufficient to survive summary judgment.") (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
Thus, defendant's motion as to plaintiff's § 301 claim is granted.
B. Breach of Local 18's Bylaws
Plaintiff also argues defendant violated several of Local 18's bylaws. Article XX, §§ 1(a) and 1(b) allow making recommendations and initiating legislation at local district membership meetings. Article XIX, §§ 9 and 10, state that a motion will not be subject to debate until is has been recorded and stated by the chair and command that no member shall be interrupted while speaking except to call him to order. Article XVII, § 1, gives all local union members the right to be present and take part in all general membership meetings. Article XL states that Roberts' Rules of Order shall be the parliamentary authority on all procedures not covered by the union constitution or other rules.
Plaintiff argues that by being ruled out of order when he tried to present motions and by being told that no more motions or votes would be allowed, defendant violated articles XX, XIX, and XVII. Plaintiff also argues that by not taking accurate minutes and not amending the minutes when asked, defendant violated art. XL.
Similar to plaintiff's § 411 claims, however, his breach of contract claims based on Local 18's bylaws fail as a matter of law. First, plaintiff has not proven that he was not allowed to make recommendations or initiate legislation at district meetings. In fact, he passed two motions. Second, as explained above, it was reasonable for the chair to rule plaintiff out of order when he motioned for the pop machine. Third, any bylaw violations based on the July 9, 2001, meeting are unsubstantiated. Fourth, plaintiff has not demonstrated how defendant's failure to take descriptive minutes or to amend the May, 2001, minutes violated any Local 18 bylaw.
Therefore, defendant's motion for summary judgment on plaintiff's contract claims based on Local 18's bylaws shall be granted.
CONCLUSION
It is, therefore,
Ordered that
1. Defendant's motion for summary judgment be, and hereby is, granted.
2. Defendant shall show cause within two weeks why its pending counterclaims should not be dismissed as moot.
So ordered.