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Rodriquez v. International Longshore Warehouse Union Local 29

August 18, 2009

ABRAM RODRIQUEZ, PLAINTIFF,
v.
INTERNATIONAL LONGSHORE WAREHOUSE UNION LOCAL 29; INTERNATIONAL LONGSHORE AND WAREHOUSE UNION; AND PACIFIC MARITIME ASSOCIATION, DEFENDANTS.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER GRANTING DEFENDANTS ILWU & LOCAL AND 29'S MOTION FOR SUMMARY JUDGMENT

On March 7, 2008, Plaintiff Abram Rodriquez initiated this action against Defendants International Longshore and Warehouse Union Local 29, International Longshore and Warehouse Union, and Pacific Maritime Association for violating his rights as a member of a labor organization. (Doc. No. 1.) On September 19, 2008, Plaintiff filed an amended complaint. (Doc. No. 21.) On July 13, 2009, Defendants International Longshore and Warehouse Union Local 29 ("Local 29") and International Longshore and Warehouse Union ("ILWU") filed a motion for summary judgment. (Doc. Nos. 41-42.) Plaintiff filed a response in opposition on August 3, 2009. (Doc. No. 51.) On August 10, 2009, Defendants Local 29 and ILWU filed a reply. (Doc. No. 54.) The Court held a hearing on the matter on August 17, 2009. Derek Anderson appeared on behalf of Plaintiff. Dennis Hayes and Robert Remar appeared on behalf of Local 29 and ILWU.

The Court, for the reasons set forth below, grants Defendant Local 29 and ILWU's motion for summary judgment.

Background

Plaintiff Abram Rodriguez brought this action against Defendants International Longshore and Warehouse Union Local 29 ("Local 29") and International Longshore and Warehouse Union ("ILWU") for: (1) violation of 29 U.S.C. §§ 412 and 529; (2) violation of 29 U.S.C. §§ 411 and 529; (3) violation of 29 U.S.C. §§ 411 and 412; (4) violation of 29 U.S.C. §§ 481 and 482; (5) breach of contract; (6) breach of covenant of good faith and fair dealing; (7) tortious interference with economic relations; (8) discrimination based on age; (9) retaliation in employment; and (10) breach of collective bargaining agreement. (Doc. No. 21, First Amended Complaint ("FAC").) Plaintiff's claims arise from his tenure and recall as President of Local 29 and from his appointment to and removal from the super cargo dispatch list.

Plaintiff is a marine clerk employed on the waterfront at the Port of San Diego, a former Union Officer, and a registered member of Defendant Local 29. (FAC ¶¶ 4-5; Doc. No. 42, Remar Decl. Ex. A, A. Rodriguez Depo 16:20-17:21.) Local 29 is a collective bargaining representative for longshore workers who work primarily in the Port of San Diego and acts as the authorized agent of its members with respect to union elections, registration, hiring, dispatch, and discipline of its members. (FAC ¶ 5.) ILWU is the parent organization for all longshore locals in California, Oregon, and Washington. (Id. ¶ 6.) PMA acts as the payroll agent and collective bargaining representative for the stevedoring companies, terminal operators, and shipping companies that employ waterfront workers at ports in California, Oregon, and Washington. (Id. ¶ 7.)

The terms and conditions of longshore and marine clerk work in all ports on the Pacific Coast are governed by a collective bargaining agreement ("CBA") between the ILWU and its locals and PMA, on behalf of its member-companies. The CBA consists of the Pacific Coast Longshore Contract Document ("PCLCD"), which governs the terms and conditions of employment for longshore workers employed by PMA member companies and the Pacific Coast Clerk's Contract Document ("PCCCD"), which governs the terms and conditions of employment for marine clerks employed by PMA member companies. Together these documents comprise the Pacific Coast Longshore and Clerks Agreeement ("PCL&CA".)*fn1 (Doc. No. 42, Remar Decl. Ex. B, McEllrath Depo. 51:20-23, 52:9-12.) When in their own membership governance, marine clerks follow the rules of Local 29's Constitution and bylaws. (Id. 52:13-16.) The Joint Port Labor Relations Committee ("JPLRC") is a joint labor-management committee composed of representatives of the waterfront employers and the ILWU locals at that specific port. Each JPLRC is responsible for administering the CBA at the local port level, which includes processing workers for registration, requiring workers to follow collectively bargained rules and procedures, and resolving grievances and employer complaints. On the JPLRC, the employers are represented by the LRC representatives with PMA as the employer chair. The Union is represented by a designated officer or representative to the respective JPLRC.

1. Election and Recall of Plaintiff as Local 29 President

In June 2007, Plaintiff was elected president of Local 29 and assumed the office on July 1, 2007. (FAC ¶ 9; Doc. No. 51 A. Rodriguez Decl. ¶ 1.) Approximately two months after Plaintiff took office, several members complained at a Local 29 membership meeting that the local dispatch rules were not being followed. (Doc. No. 42 Remar Decl. Ex. A, A. Rodriguez Depo. 39:1-40:12.) The nature of the members' complaints was that workers were being permitted to take multiple shifts in a row, which reduced the work opportunity of other workers. (Id. 40:19-41:8.) The membership at this meeting voted to enforce the 1987 dispatch rules. (Id. 44:23-45:3.) The day following the meeting, Plaintiff informed Local 29 dispatcher Anthony Soniga to enforce the 1987 dispatch rules, which would stop the practice of triple backs and allow workers to take only two shifts in a row. (Id. 48:3-50:23.) Disallowing workers to take more than two shifts in a row changed dispatch procedures that had been in place for approximately ten years. (Id. 41:19-42:5.)

At a November 5, 2007 JPLRC meeting, PMA sought Local 29's agreement to temporarily bring in 30 longshore workers and 10 foremen from the Port of Los Angeles/Long Beach, due to an expected increase in cargo volume. (Id. 61:22-64:6, Ex. 4.) Local 29 agreed to PMA's proposal and agreed that class A longshore travelers would be honored as such and that all other travelers would be considered volunteer travelers and dispatched after the ID board. (Id., Ex. 4.) On November12, 2007, Plaintiff was confronted by members of Local 29's executive board who complained that the longshore workers registered outside the Port of San Diego were being rotated with San Diego Class A workers and dispatched ahead of San Diego Class B workers. (Id. 73-76.) Plaintiff testified that at this meeting Local 29 member Joe Vinole threatened him physically and that Vinole made similar threats in the following days. (Id. 77-83.) Plaintiff filed a union complaint regarding these incidents on November 25, 2007. (Id., Ex. 5.) On November 14, 2007, a special executive board meeting was called by the executive board members and the LRC committee regarding the rotation of the visitors and Plaintiff's failure to bring the matter before the executive board, the LRC committee and the members before the November 5, 2007 JPLRC meeting. (Id. 151:13-152:5.) Plaintiff testified that he stated at this meeting that everyone that was needed from the Local 29 was present at the November 5, 2007 JPLRC meeting and that all had agreed that the visitors would rotate with the locals for foremans and skilled jobs. (Id. 152:9-153:12.)

At a membership meeting on December 11, 2007, Plaintiff was presented with a recall petition signed by 49 Local 29 members. (Id. Ex. 6.) Brian Whatley read the charges against Plaintiff from the recall petition and four or five members yelled at Plaintiff to vacate his chair as president and physically approached Plaintiff. (Id. 96-101.) Plaintiff refused to step down, tried to regain order of the meeting, but the meeting deteriorated into chaos. (Id. 101-03.) Plaintiff filed a union complaint on December 17, 2007, regarding the events of the December 11, 2007 meeting. (Id. Ex. 5.) Local 29 Vice President William Silva announced to the membership in a December 22, 2007 letter that Plaintiff would have an opportunity to present his case to the membership on January 8, 2008 and that the recall vote would occur on January 11, 2008. (Id. 187-88, Ex. 12.) Plaintiff was given twenty minutes to address the membership, he used all twenty minutes, and then was told to leave the meeting. (Id. 188:13-22.) Plaintiff was interrupted mid-sentence and informed the officials that he was just getting started and needed to give his defense. (Id. 189:2-25; Doc. No. 51, Mendoza Decl. ¶ 8, Villanueva Decl. ¶ 11, Luna Decl. ¶ 9.) The recall election took place on January 11, 2008 and Plaintiff was recalled by a vote of 61 to 29. (Doc. No. 42 Remar Decl. Ex. C, Whatley Depo. Ex.11.)

Plaintiff wrote to the President of ILWU, Robert McEllrath, on December 14, 2007, complaining about the recall petition and alleging various internal problems at Local 29. (Doc. No. 42, A. Rodriguez Depo. 129-30, Ex. 10.) McEllrath responded to Plaintiff's letter by writing to the officers and executive board members of Local 29, requesting information regarding Plaintiff's accusations. (Id. 186, Ex. 11.) However, during McEllrath's investigation, it came to his attention that Plaintiff was believed to have a criminal conviction that prevented him from holding union office. (Id., Ex. 15.)

On June 27, 1994, Plaintiff was convicted under 18 U.S.C. §§ 371 and 1546 for conspiracy to make false statements in visa applications in the United States District Court for the Southern District of California. (Doc. No. 42, A. Rodriguez Depo. Ex. 27.) Plaintiff pled guilty to a charge of conspiring "to assist undocumented aliens in presenting and subscribing as true, false statements with respect to material facts on . . . Applications for Status as Special Immigrant Religious Workers." (Id. Ex. 28.) Plaintiff was sentenced to eight months in prison, beginning July 11, 1994, and one year of supervised release following the end of his prison term. (Id. Ex. 27.) He served four months in federal prison and an additional four months in a community confinement center. (Id. 13-16, Ex. 28.) Plaintiff was released from federal custody in March 1995. (Id. 18.)

After McEllrath directed Local 29 to advise him and Local 29 members on Local 29's position on Plaintiff's criminal conviction, and after Plaintiff's counsel refused to confirm or deny Plaintiff's conviction, Local 29 and ILWU concluded that Plaintiff was convicted of a felony in 1994, sentenced to confinement until March1995, and was therefore ineligible to serve in union office when he was elected in 2007. (Id. Exs. 15 & 16; Remar Decl. ¶ 5, Ex. D; McEllrath Depo. 117-20.) ILWU therefore ceased to investigate Plaintiff's allegations regarding the recall election because McEllrath determined Plaintiff was in violation of § 504 of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 504.*fn2 (Id., McEllrath Depo. 117-20.)

2. Appointment and Removal of Plaintiff from the Super Cargo Dispatch List

On June 27, 2007, Local 29 made a request to the Joint Clerks' LRC that the three most senior marine clerks in Local 29 be given super cargo status and added to the super cargo list. (Doc. No. 42, A. Rodriguez Depo. 268:1-10; Doc. No. 51, Anderson Decl. Ex. A, V. Rodriguez Depo. 40-41, Ex. B, Peterson Depo. 39.) A marine clerk with super cargo status gets priority dispatch for super cargo jobs and, if no super cargo jobs are available, those with super cargo status get first choice in dispatch for any remaining clerk jobs. (Doc. No. 42, A. Rodriguez Depo., Ex. 1.) Vernon Rodriguez, Plaintiff's brother, was the only Local 29 representative present at the meeting and the was the Union member who made the request on behalf of Local 29. (Id., A. Rodriguez Depo. 206:4-207:13, Ex. 18; Doc. No. 51, Peterson Depo. 39.) No action was taken at that time on the request, pending additional information from the Union regarding the three individuals the Union wanted to be added to the super cargo list. (Id., Peterson Depo. 53-54.)

Plaintiff was elected president of Local 29 in June 2007, assumed the office on July 1, 2009, and as such become an authorized Union representative to the respective JPLRC meetings held in San Diego. (FAC ¶ 9.) In the months following Local 29's initial request to add three marine clerks to the super cargo list, PMA investigated and found no past minutes of any Joint Clerks' LRC or any personnel information concerning the method that Local 29 historically used to add super cargoes. (Doc. No. 51, Peterson Depo. 53-54.)

At the September 26, 2007 Joint Clerks' LRC meeting, Plaintiff and Vernon Rodriguez represented the Union and Tim Peterson represented PMA. (Doc. No. 42, A. Rodriguez Depo. Ex. 19.) Peterson testified that he had done research to try to determine the past practices of Local 29 and that he had not found anything to indicate that Local 29 had required additional super cargo training and testing in the past in order for a clerk to be added to the super cargo list. (Doc. No. 51, Peterson Depo. 53-54.) Because Peterson could determine no past practice, he brought with him payroll, training and work history information for each of the approximately 15 or 16 marine clerks in the unit in order for the Committee to determine which three clerks to add to the super cargo list according to seniority as determined by several factors. (Id., Peterson Depo. 57-61; Doc. No. 42, A. Rodriguez Depo. Ex. 19.) Based on the information, the Joint Clerks' LRC concluded that the three most senior clerks to be added to the super cargo list pursuant to Local 29's request were Plaintiff, Vernon Rodriguez, and Eddie Flores. (Id.; Doc. No. 51, Peterson Depo. 60-62.)

Noel Carlisle, another marine clerk, filed a union complaint against PMA and Tim Peterson in January 2008 alleging improper dispatch for allowing Plaintiff, Vernon Rodriguez and Eddie Flores to be dispatched as super cargoes without having completed the super cargo testing and training first. (Id., A. Rodriguez Decl. ¶ 16; Peterson Depo. 69-70; Doc. No. 42, A. Rodriguez Depo. Ex. 20.) The issue of this complaint was raised at the February and March 2008 Joint Clerks' LRC. At the March 19, 2008 Joint Clerks' LRC meeting, Local 29 demanded that the three clerks be removed from the super cargo list and presented two letters certifying that two of the current super cargo clerks had passed the super cargo examination prior to being given super cargo status. (Doc. No. 42, A. Rodriguez Depo. Ex. 21.) The employers, through PMA, initially took the position that the super cargo list should remain intact and that any future additions to the super cargo list would have to go to super cargo training and testing. (Doc. No. 51, Peterson Depo. 90-91.)

The employers and the Union eventually resolved the dispute with an agreement that the clerks currently on the super cargo list would remain on the list, but would be required to sign up for, take, and pass the upcoming super cargo training to remain on the list and that any clerks seeking super cargo status in the future would have to take and pass the training and test prior to being placed on the list. (Doc. No. 51, Peterson Depo. 95-96.) As a result of this agreement, a sign up sheet for June 2008 training was posted between May 7, 2008 and May 21, 2008 for any eligible clerks, including Plaintiff. (Id., Peterson Depo. 96-97; Doc. No. 42, A. Rodriguez Depo. Ex. 21.) It was also agreed that if any clerk then on the super cargo list failed to sign up for the training within this period, failed to complete the training after signing up, or failed to pass the super cargo test, he or she would be removed from the super cargo list. (Id., A. Rodriguez Depo. Ex. 21; Doc. No. 51, Peterson Depo. 103.)

Plaintiff did not sign up for the training and testing before the end of the posting on May 21, 2008. (Id., Peterson Depo. 104; Doc. No. 42, A. Rodriguez Depo. Ex. 21.) As a result, on May 22, 2008, a special Joint Clerks' LRC meeting was held, where the Union and PMA, acting through Tim Peterson, voted to remove Plaintiff from the super cargo list effective May 22, 2008. (Id., A. Rodriguez Depo. Ex. 21; Doc. No. 51, Peterson Depo. 101-04.) Plaintiff did not file a grievance under the PCLCD concerning his removal from the super cargo list. (Doc. No. 42, A. Rodrguez Depo. 268:11-16.)

Discussion

I. Summary Judgment - Legal Standard

Federal Rule of Civil Procedure 56 governs summary judgment. Section (b) provides that "a party against whom relief is sought may move at any time, with or without supporting affidavits, for summary judgment on all or part of the claim." FED. R. CIV. P. 56(b). A motion for summary judgment should not be granted unless the pleadings, affidavits and evidence on file present "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). "Summary judgment should be granted where the evidence is such that it would require a directed verdict for the moving party." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). Thus, "Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing ...


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