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GILMORE v. INTERNATIONAL UNION OF OPERATING ENGRS.

July 26, 1995

WALTER EDWIN GILMORE, JR., Plaintiff,
v.
INTERNATIONAL UNION OF OPERATING ENGINEERS, et al., Defendants.



The opinion of the court was delivered by: JAMES ROBERTSON

 This matter came before me sitting as Motions Judge. After an evidentiary hearing on plaintiff's motion for preliminary injunction held on July 21, 1995, the case was transferred to me for all purposes.

 Plaintiff Walter Gilmore alleges inter alia that he was hired as a lobby guard at the Washington, D.C. headquarters building of defendant International Union of Operating Engineers (IUOE) in October 1991; that he thereafter joined Service Employees International Union, AFL-CIO, CLC, Local 82 ("Local 82"); that he worked as a lobby guard on the 8 a.m. to 4 p.m. shift from October 1991 until May 4, 1994; that he was fired on May 4, 1994 after an altercation with IUOE's president, defendant Frank Hanley; that, through Local 82 and pursuant to the provisions of the collective bargaining agreement between Local 82 and the IUOE, he filed a grievance with respect to his termination; that the grievance was referred for arbitration and that a hearing was conducted thereon; and that, on December 28, 1994, the arbitrator issued an award in his favor and ordered him reinstated. Plaintiff alleges that defendants IUOE and Hanley have refused to reinstate him to the job from which he was fired or to pay him or provide the other relief ordered by the arbitrator.

 Gilmore's complaint is stated in four counts. Count I invokes the jurisdiction of this Court under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and seeks a judgment ordering IUOE to reinstate Gilmore to his former position as a lobby guard on the 8:00-4:00 weekday shift and to restore all of his seniority and benefits, together with back pay, attorneys fees, and other relief. Counts II and III recite claims under the Fair Labor Standards Act, 29 U.S.C. § 207, and the Minimum Wage Act Revision Act of 1992, 36 D.C. Code § 220.2, premised on the alleged failure of defendants IUOE and Hanley to pay time-and-a-half for overtime. Count IV asserts a violation of 36 D.C. Code § 101 et seq. with respect to the alleged failure of IUOE and Hanley to pay for Gilmore's accrued paid vacation time. No relief is sought in the complaint as to defendant Local 82.

 The instant application for preliminary injunction, filed June 16, 1995, relates only to Count I and seeks only Gilmore's reinstatement to the 8:00-4:00 lobby guard position pending decision on the merits of this action.

 Motions to dismiss were filed by all defendants on June 30, 1995, and are fully briefed. Local 82 moves to dismiss Count I of the complaint, asserting that it is the exclusive bargaining agent for its members and that, accordingly, plaintiff lacks standing to sue absent a showing of a breach by the union of its duty of fair representation or that the arbitration award plaintiff seeks to enforce was "a sham, inadequate, or unavailable." The IUOE and Hanley move to dismiss the entire complaint. They also argue that plaintiff lacks standing with respect to his reinstatement claim, and they argue further that plaintiff cannot demonstrate that the IUOE has failed to adhere to the terms of the arbitration award. IUOE then recycles those two arguments to oppose Gilmore's application for preliminary injunction, asserting that he is unlikely to succeed on the merits of his claim.

 FACTS

 The following facts are established by testimony given at the July 21 hearing or otherwise by the record of this case:

 In October 1991, Patrick O'Brien, IUOE's building engineer, approached plaintiff Walter Gilmore, told him the IUOE daytime lobby guard position was open, and asked if he was interested. Gilmore was, and, after an interview with defendant Hanley, was hired for the Monday-Friday 8-4 shift. The IUOE had two other building guard positions, one working weekday evenings and one working a combination of night and weekend hours. There was no rotation of shift assignments.

 Gilmore joined Local 82, which represented about 10 employees of IUOE, *fn1" and worked at IUOE, apparently without incident, from October 1991 until May 4, 1994. Gilmore sometimes worked overtime, but he was under no obligation to do so. On May 4, 1994, after an argument with IUOE's president, defendant Hanley, Gilmore was fired. Gilmore filed a grievance protesting his discharge. The grievance was processed in accordance with the collective bargaining agreement between the IUOE and Local 82. An arbitration hearing was held on December 12, 1994. *fn2" The witnesses were Gilmore, Hanley and O'Brien. The arbitrator issued his award on December 28, 1994, sustaining the grievance and ordering that Gilmore be "reinstated with full back pay (less any earnings or unemployment compensation), and restoration of seniority and benefits." Gilmore's uncontradicted testimony was that Carolyn Lewis, the Local 82 union representative who had represented Mr. Gilmore at the arbitration hearing, told him soon after the issuance of the award that the IUOE did not want him back and that the union would probably have to get a court injunction to force IUOE to take him back.

 On January 9, 1995, Ms. Lewis wrote to Helen Morgan, IUOE's associate general counsel, reciting IUOE's "refusal to reinstate Mr. Gilmore to his previous job . . . ." and giving notice that Local 82 would be "filing the necessary paperwork in District Court for an injunction to reinstate Mr. Gilmore." On January 13, 1995, Ms. Morgan replied that IUOE had not "refused to reinstate Mr. Gilmore" but that it was "actively exploring settlement in lieu of reinstatement . . . ."

 Further negotiations were conducted between the Local 82 and the IUOE. A cash offer made to Gilmore in lieu of continued employment was refused as inadequate. A meeting between Gilmore and Ms. Lewis took place on April 19, 1995. *fn3" There was no further communication between Mr. Gilmore and Ms. Lewis after the April 19 meeting.

 On May 18, 1995, Ms. Morgan of IUOE advised Ms. Lewis of Local 82 by letter that "inasmuch as we have been unable to reach any satisfactory settlement," the IUOE was offering Gilmore "immediate reinstatement to a position as full-time guard (night/weekend shift) . . . ." The work schedule for the offered position was Thursdays and Fridays from 10 p.m. to 6 a.m., Saturdays from 2 p.m. to 10 p.m., and Sundays from 6 a.m. to 2 p.m. and from 10 p.m. to 6 a.m.

 On May 25, 1995, Gilmore's retained counsel advised IUOE by letter that Gilmore was now separately represented in connection with the arbitration award and all matters related to his prior employment with and his discharge from IUOE. This letter rejected the IUOE offer that Gilmore resume work on the night/weekend shift as a "unilateral and unjustified alteration of the arbitrator's order to reinstate Mr. Gilmore." The letter also withdrew any prior offers of compromise or settlement made on Gilmore's behalf by Local 82 and gave notice that, "if we cannot conclude a final settlement agreement by June 15, 1995, we intend to file a complaint seeking the confirmation of the arbitrator's award . . . ."

 On June 9, 1995, without notice to Gilmore or his counsel, IUOE's Ms. Morgan and Local 82's Ms. Lewis jointly telephoned the arbitrator. There is no transcript of that telephone conference. Ms. Morgan, who was present in Court at the July 21, 1995 hearing, was not called to testify about it. Ms. Lewis testified that the arbitrator was offered nothing new that he did not have at the December hearing and that the IUOE offer of the "graveyard" shift was not made known to the arbitrator. She said that the arbitrator asked whether the collective bargaining agreement provided for bidding on jobs according to seniority and whether employees had been transferred from one shift to another based on seniority. She apparently told the arbitrator (see tr. pp. 123-24) that there was no established usage or practice with respect to shift assignments. The arbitrator did not have the benefit of the testimony of Patrick O'Brien to the effect that Gilmore had been hired for the day shift, that shifts were not rotated, and that the day shift job was a position distinct from the other two lobby guard positions.

 A letter memorializing the June 9 telephone conference was prepared by IUOE's Ms. Morgan under date of June 12, 1995 and was signed by the arbitrator on June 16, 1995. That letter stated, in relevant part:

 
"In light of the Arbitrator's conclusion that the applicable collective bargaining agreement between the parties does not limit the Employer's discretion in assigning shifts within the unit, the Arbitrator clarified his award by determining that the Employer's offer to reinstate Grievant to any full-time lobby guard position, ...

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