CONCLUSION
For the reasons explained above, defendant Randall’s and defendant Local 707’s renewed
motions for judgment as a matter of law are granted. Judgment is ordered entered in favor of
defendants Randall and Local 707 and against plaintiff Berge. Pursuant to Rule 50(c)(1), because
the dispositive facts are uncontroverted and the verdict was against the clear weight of the evidence,

defendants’ alternative requests for a new trial are conditionally granted.

ENTER:

heres. Lederer

ty nee F. HOLDERMAN
it

ed States District Judge

DATE: March 12, 2004

13



with Local 707 business agent and organizer Edgar Roman (“Roman”) regarding the impact of such
a transfer on Walker’s seniority. (Tr. at 570, 635-36.) C. Truckenbrodt testified that Roman said,
regarding the transfer, that “we treat it the same way we treat a layoff. You’re away from your work
for up to a year, you get to retain your ~ as if it was a layoff. You’re not available for your work
now, and you retain your seniority if you go back, just as if you were called back.” (Tr. at 635-36.)
Based on this conversation with Roman, when Walker returned to the driver position in May 2002,
Randall and Local 707 concluded that Walker had retained his seniority within the driver job
classification because he had been in the rental coordinator position for less than one year. As such,
in May 2002, when Walker returned to the truck driver position, he was more senior than Berge. At
that time, Randall needed only two truck drivers, and of the three truck drivers, Berge, Gear, and
Walker, Berge was the least senior driver. Consequently, Randall terminated Berge.

Randall argues in its renewed motion for judgment as a matter of law that the jury’s verdict
was contrary to the undisputed evidence that Walker was laid off within the meaning of the CBA and
therefore retained his seniority within the truck driver job classification. Local 707 contends that the
evidence does not support the jury’s finding of bad faith. These arguments will be addressed below.

STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 50, this court should render judgment as a matter
of law when “a party has been fully heard on an issue and there is no legally sufficient evidentiary
basis for a reasonable jury to find for that party on that issue... .” Feb. R. Civ. P. 50(a)(1). As the
Supreme Court has made clear, “the standard for granting summary judgment ‘mirrors’ the standard
for judgment as a matter of law, such that ‘the inquiry under each is the same.’” Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citations omitted). Thus, this court



opportunity to counter, caused the jury to make the unreasonable finding it made in returning a
verdict in Berge’s favor.

As stated above, the evidence regarding the parties’ agreement to treat a transfer as a layoff
was uncontroverted. Berge’s counsel’s misleading statement, which told the jury that Randall had
to prove more than Randall had proven, was improper rebuttal argument. Berge had never disputed
the evidence on this issue. Indeed, Randall had undisputedly proved its theory by a preponderance
of the evidence. Randall’s proof was uncontroverted, and therefore, it had met its burden. Any
argument to the contrary, or jury finding to the contrary, was unreasonable.

As the Seventh Circuit has held, “a plaintiff cannot avoid summary judgment [or judgment
as a matter of law] by merely claiming a jury could disbelieve the employer’s reason.” Traylor 295
F.3d at 791 (holding that in a Title VII case, a plaintiff cannot defeat summary judgment by simply
arguing that the jury could disbelieve the employer’s proffered legitimate, nondiscriminatory reason).
This is the precise tactic Berge’s counsel used in rebuttal argument. The Supreme Court held many
years ago, “the question of the credibility of witnesses is one for the jury alone; but this does not
mean that the jury is at liberty, under the guise of passing upon the credibility of a witness, to
disregard his testimony, when from no reasonable point of view is it open to doubt.” Chesapeake
& Ohio Ry. Co. v. Martin, 283 U.S. 209, 216 (1931). In the case at hand, the jury, prompted by
Berge’s counsel’s erroneous rebuttal argument, disregarded C. Truckenbrodt’s unimpeached
testimony. As a result, the verdict cannot stand and must be set aside.

Berge is correct that the jury is allowed to draw reasonable inferences supported by the
record, (Resp. at 4.) However, because C. Truckenbrodt’s testimony was uncontroverted by any

evidence and remained undisputed when the parties rested at the close of all the evidence, Randall



In addition, the Seventh Circuit has made clear that “[e]ach of these possibilitics must be considered
separately in determining whether or not a breach has been established.” Id.
I Breach of the CBA

Before moving Walker into the rental coordinator position, the undisputed evidence
established that Randall’s administrative officer C. Truckenbrodt talked with Local 707’s business
agent Roman to determine what effect the move would have on Walker’s seniority. (Tr. at 570, 635-
36.) Just prior to the transfer, Walker was the most senior driver at Randall Rents of Indiana. C.
Truckenbrodt testified that it was Randall’s and Local 707’s policy that a bargaining unit member
who laterals into a non-bargaining unit position does not lose his or her seniority; rather, the
employee’s seniority is preserved should he or she transfer back into the collective bargaining unit.
(Tr. at 635.) More importantly, Roman told C. Truckenbrodt that Local 707 treats such a transfer
asa layoff. (Tr. at 635-36.) Under the terms of the CBA, an employee loses his or her seniority after
having been laid off for twelve consecutive months, and therefore, retains his or her seniority during
the first twelve months of a layoff. (CBA, Art. XIII.) In other words, the undisputed trial evidence
established that Randall and Local 707 had agreed that the term “laid off” included a transfer, like
in Walker’s situation, to a non-bargaining unit position.? Consequently, for the first twelve months

of the transfer, as with a layoff, the laid off employee retains his or her seniority rights.

2 The Seventh Circuit has held that “a collective bargaining agreement may be partly or
wholly oral as well as partly or wholly in writing, and a written collective bargaining agreement
may be orally modified.” Merk v. Jewel Food Stores Div. of Jewel Cos., Inc., 945 F.2d 889, 895
(7th Cir. 1991). Here, although not explicitly written, the undisputed evidence is clear that
Randall and Local 707 had agreed that transfers to non-bargaining unit positions were treated as
layoffs.

3 Berge argues that because Randall did not fully address its position with respect to
transfer and seniority rights, including the conversation between C. Truckenbrodt and Roman, in

6



should review all of the evidence in the record and draw all reasonable inferences in favor of the
nonmoving party, here Berge. Moreover, this court may not make credibility determinations or
weigh the evidence. Id. Finally, and particularly important in this case, this “court should give
credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving
party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from
disinterested witnesses.’” Id. at 151 (citation omitted). In interpreting this directive from the

Supreme Court in Reeves, the Seventh Circuit has held that the uncontroverted testimony of a

company employee must be given credence. Traylor v. Brown, 295 F.3d 783, 791 (7th Cir. 2002).
The court pointed out that to hold otherwise “would essentially prevent any employer from
prevailing at the summary judgment [or judgment as a matter of law] stage because an employer will
almost always have to rely on the testimony of one of its agents to explain why the agent took the
disputed action.” Id.
ANALYSIS

Berge, along with the other plaintiffs, filed what is commonly known as a hybrid suit against
the defendants. As the Supreme Court has held, “[t]o prevail against either the company or the
Union, . . . [Berge] must not only show that [his] discharge was contrary to the contract but must also
carry the burden of demonstrating a breach of duty by the Union.” DelCostello v. Int’! Bhd. of
Teamsters, 462 U.S. 151, 165 (1983). In other words, to prevail on his hybrid claim, Berge must
prove by a preponderance of the evidence that Randall breached the CBA and that Local 707

breached its duty of fair representation. McLeod v. Arrow Marine Transp., Inc., 258 F.3d 608, 613

(7th Cir. 2001). A union breaches the duty of fair representation only if its actions are arbitrary,

discriminatory, or in bad faith. Neal v. Newspaper Holdings, Inc., 349 F.3d 363, 369 (7th Cir. 2003).



The testimony of C. Truckenbrodt on this issue was undisputed at trial. Berge’s counsel did
not address the parties’ interpretation of “laid off’ during the cross-examination or re-cross-
examination of C. Truckenbrodt or during his direct examination of Roman. Thus, C.
Truckenbrodt’s testimony must be given credence. Traylor, 295 F.3d at 791. Even if Berge had been
surprised by C. Truckenbrodt’s testimony on this point during Randall’s case-in-chief, Berge could
have called Roman as a rebuttal witness and disputed C. Truckenbrodt’s testimony. Moreover,
Berge’s counsel did not address the issue of Randall and Local 707’s understanding of “laid off” in
his initial closing argument. In his rebuttal argument, however, Berge’s counsel made his only attack
at trial on the issue of whether an agreement between Randall and Local 707 regarding layoffs and
transfers ever took place. Berge’s counsel argued:

[Local 707] didn’t say that we had a deal with the company. The company says we

had a deal.

Where was the 707 witnesses? Where was — the agreements take two parties.

There’s two sides that have to agree. What 707 witness said, “We agreed to let

Walker come back. We had a previous deal that agreed to let him come back”?

Where was that testimony?

Where was Mr. Walker? He’s the guy who supposedly was the beneficiary
of this. He’s the one who supposedly would know about this agreement. He didn’t
testify either.
I mean, this is all holes.
(Tr. at 862-63.) It was misleading for Berge’s counsel to argue that somehow Randall had failed at
its obligation to present sufficient evidence on this issue when in fact the only evidence presented
at trial pointed undisputably in favor of Randall and had never been questioned by Berge’s counsel

during the presentation of the evidence. This court believes that the above quoted rebuttal argument

by Berge’s counsel, which was erroneous under the facts and the law and which Randall had no



"Minute Order Fortn (06/97)

United States District Court, Northern District of IMinois

NamectAsient ute | James F, Holderman | ‘tig Judge fe
CASE NUMBER 02 C 6756 DATE March 12, 2004
CASE PEASE et al vs. PRODUCTION WORKERS LOCAL 707 et al
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.}

MOTION:
DOCKET ENTRY:
(dy Oo Filed motion of [ use listing in “Motion” box above.]
(2) im Brief in support of motion due
(3) im Answer brief to motion due___. Reply to answer brief due___.
(4) i Ruling/Hearingon___sset for_— at
(5) QO Status hearing[held/continued to] [set for/re-set for]on___—sset for at.
(6) o Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor_——saat__—
(7) ia) Trial[set for/re-set for]on_ at.
(8) im [Bench/Jury trial] [Hearing] held/continued tot
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OLocal Rule 41.1 OOFRCP41(a)(1) OO FRCP41(a)(2).
| [Other docket entry] Pursuant to Memorandum Opinion and Order entered this day, defendants’

motions for judgment as a matter of law are granted. Judgment is entered in favor of defendants Randall
Industries, Inc, Randall Rents, and Production Workers Union of Chicago and Vicinity Local 707 and
against plaintiff Berge. Pursuant to Rule 50(c)(1), because the dispositive facts are uncontroverted and
the verdict was against the clear weight of the evidence, defendants’ alternative requests for a new trial
are conditionally granted.

(

YR} No notices required, advised in open court,

Oo [For further detail see order (on reverse side offattached to) the original minute order.]

No notices required.

1)
Ye Notices mailed by judge's staff.
Z| Notitied counsel by telephone.

umber of notices

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

Courtroom
JS6 deputy's
initials

Rate/time recgived,in
~_central Clerk’s Office

railing deputy initials



Any finding to the contrary is not supported by the evidence and is against the undisputed manifest
weight of the evidence. Such a finding must be set aside.
Il. Bad Faith

In addition, the jury’s finding that Local 707 acted in bad faith (Berge Claim One Verdict
Form) is not supported by a legally sufficient evidentiary basis. As this court instructed the jury,
without objection from either party:

Whether or not a union’s actions are in bad faith calls for a subjective inquiry

and requires proof that the union acted, or failed to act, due to an improper motive.

To show bad faith, plaintiffs must identify conduct by Local 707 union officials that

would support a reasonable inference of bad faith on the part of Local 707. Conduct

is in bad faith when it is designed to mislead someone by fraud, deceit, or dishonest

action.
(Jury Instructions at 19.) At trial, Berge did not identify specific conduct that would support a
reasonable inference that Local 707 attempted to mislead Berge by fraud, deceit, or dishonest action.
In his consolidated response to defendants’ renewed motions for judgment as a matter of law, Berge
points to the following evidence to support the jury’s finding of bad faith: Local 707 knew that Berge
supported Local 150; Local 707 mocked Berge and called him “Mr. 150”; Local 707 failed to assist
Berge in preparing or presenting his grievances; and Local 707 failed to adequately investigate
Berge’s grievances. (Resp. at 10-11.)

Nowhere, however, does Berge explain how any of these amount to conduct by Local 707
designed to mislead by fraud, deceit, or dishonest action. In fact, in his closing argument to the jury,
Berge’s counsel argued that Local 707 acted arbitrarily and discriminated against Berge, but he did

not point to any evidence supporting a bad faith finding, nor did he even mention bad faith. (Tr. 794-

97.) Clearly, the jury rejected the arguments regarding arbitrariness and discrimination, as it found

ll


was under no obligation to provide further corroboration of this undisputed fact or to call a Local 707
representative to the stand. The jury cannot simply disregard the undisputed evidence of C.
Truckenbrodt, as Berge argued in rebuttal and still argues. Just like the rebuttal argument at trial,
Berge claims in his consolidated response to defendants’ renewed motions for judgment as a matter
of law that “the jury was permitted to infer from the absence of any Local 707 testimony supporting
Mr. Truckenbrodt’s allegation that no such agreement existed. Nor did Mr. Roy Walker testify as
to what had occurred between the parties concerning his seniority. Again, the jury could infer from
the lack of supporting testimony that no such oral agreement had been reached.” (Resp. at 5.) This
is factually and legally incorrect. Once a party presents evidence as to a fact under a preponderance
of the evidence standard, unless that evidence is impeached in some manner or evidence disputing
that fact is presented, the fact has been proven. To find otherwise would be contrary to the Seventh
Circuit’s reasoning in Traylor, 295 F.3d at 791.

Berge is also incorrect that Randall and Local 707’s agreement as to the scope of the term
“laid off’ in the CBA cannot be considered. Parol evidence is not implicated here because
statements made prior or contemporaneous with the making of the contract are not at issue. Based
on the undisputed evidence, it is clear that prior to transferring Walker the parties simply clarified
their prior agreement. The evidence supports only one reasonable inference-i.c., that the parties had
agreed that “laid off” includes having been transferred to a non-bargaining unit position. This was
clearly the understanding of both Local 707 and Randall prior to Walker’s transfer, In light of the
unrefuted definition of “laid off” as used in the CBA, the jury was unreasonable to find for Berge.

The conversation between C. Truckenbrodt and Roman merely confirmed their prior understanding.

10


This agreement to treat an employee transferred to a position outside the bargaining unit as
a laid off employee is consistent with the principles of labor law and the past practices of Randall
and Local 707. Local 707 owes each of its members of a duty of fair representation. It must take
into account the rights and interests of each of its members and of the membership as a whole. Local
707’s position with respect to layoffs applies uniformly to all Local 707 members. Local 707 trustee
Susan Schreiner testified that Local 707 did not believe that Walker lost his seniority when he moved
into the rental coordinator position because “[t]he union wants a member to be able to advance
without the risk of being terminated by doing so. The union wants the seniority to follow so that in
the event a position does not work out, the member is not out of a job.” (Tr. at 737-38.) Such a
policy was not created specially for Walker. If Berge would have transferred to a non-bargaining
unit position, Randall and Local 707, pursuant to the CBA, would have treated such a move as a
layoff. Consequently, if Berge would have returned to the bargaining unit within the first twelve
months, he would have retained his seniority rights. In fact, when Berge’s co-plaintiff Pease moved
out of his bargaining unit position for less than twelve months, Randall continued to treat his
seniority date as his date of hire, August 14, 2000, not the date he returned or moved to the

bargaining unit. (Tr. at 29, 34-35, 147, 491-92; Def. Randall Tr. Ex. 41.)

its trial brief, it is precluded from doing so in its renewed motion for judgment as a matter of law.
Berge’s sole authority for this is a reference to the form pre-trial order included with this
district’s Standing Order Establishing Pretrial Procedure. Endnote 10 to the form pre-trial order
states that “[t]rial briefs are intended to provide full and complete disclosure of the parties’
respective theories of the case.” Nothing supports Berge’s argument that a party’s failure to
include a position in the trial brief precludes that party from ever advancing such a position at a
later time. In addition, Berge cannot claim that he was surprised by Randall’s contention, as
Randall stated in the Final Pre-trial Order that a contested issue of fact concerned whether
Walker retained his seniority when he returned to his previous job classification within twelve
months. (Final Pre-trial Order, Sch. A, Def. Randall’s Stmt. of Contested Facts § 20.) Thus, this
court is not prevented from considering Randall’s arguments.

7



In effect from June 1, 1999, through May 31, 2002, the CBA between Randall and Local 707
contained the following provision, in relevant part, regarding seniority:
ARTICLE XIII - SENIORITY & BIDS
Job classification seniority will operate for all promotions, layoffs, re-
employment, the selection of shifts, overtime work and vacation, provided that the
individual can perform the available job in a reasonably satisfactory manner. An
employee loses all seniority after having been laid off for twelve (12) consecutive
months.
The CBA did not include a zipper clause or other similar provision that would limit the parties’
ability to modify or amend the CBA. Moreover, the CBA did not contain an integration clause
limiting the CBA to its express, written terms.

The evidence at trial established that Walker approached Randall about moving to a sales
position at Randall. (Tr. at 569, 646.) After discussing the matter, the parties agreed that Walker
would move into the rental coordinator position, a non-bargaining unit position. (Tr. at 646-47.)
Kerry Orrock, the manager at Randall Rents of Indiana, testified that upon moving to the new
position, “the situation was that if it didn’t work out for the company or [Walker] didn’t like it, he
could always go back to being a driver.” (Tr. at 647.) In addition, Randy Truckenbrodt, the owner
of Randall Industries, testified that it was the practice at Randall to allow an employee the
opportunity to return to a prior position after accepting a new position. (Tr. at 491-92.) When
Walker was transferred to the rental coordinator position, he was not covered by the CBA. (Tr. at
435,596,651.) In addition, during his time as rental coordinator, union dues were not withheld from
Walker’s paycheck. (Tr. at 597-98.)

Furthermore, Chuck Truckenbrodt (“C. Truckenbrodt”), Randall’s day-to-day administrative

officer, prior to transferring Walker to the non-bargaining unit rental coordinator position, spoke



of him because of his support for International Union of Operating Engineers, Local 150 (“Local
150”) in violation of the CBA and that Local 707 breached its duty of fair representation. The jury
also found in favor of defendants with respect to each of the claims of plaintiffs Christopher Pease
(“Pease”) and Mike Gear (“Gear”). On January 26, 2004, Local 707 filed a renewed motion for
judgment as a matter of law and alternative request for a new trial. On January 27, 2004, Randall
filed a similar motion. For the following reasons, the motions for judgment as a matter of law are
granted.
STATEMENT OF FACTS!

Berge worked as a truck driver at the Randall Rents facility in Portage, Indiana from about
August 30, 2001, to May 15, 2002. At that time, Roy Walker (“Walker”) and Gear were truck
drivers with greater seniority than Berge. All three of these Randall employees, Berge, Gear, and
Walker, were covered by the CBA between Randall and Local 707. After training Berge, in October
2001, Walker moved to the rental coordinator position at Randall, a non-bargaining unit position.
(Tr. at 596, 646-47.) In May 2002, Randall moved Walker back to the bargaining unit truck driver
position and terminated Berge. (Tr. at 489, 596.)

Berge then filed a grievance claiming that Randall violated Article XII of the CBA when it
terminated him instead of Roy Walker. The grievance did not proceed to arbitration. The evidence
at trial showed that Local 707 did not assist Berge in writing his grievance (Tr. at 427-28) and that

Berge was mocked and called “Mr. 150” (Tr. at 358).

' The Statement of Facts is derived from the evidence presented at trial. Trial transcript
page citations have been provided herein.



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
)
Christopher Pease, Willard Berge, and )
Mike Gear, )
Plaintiffs, ‘
v. } No. 02 C 6756
Production Workers Union of Chicago ; }
ond Randall Renisof lading) DOCKETED
Defendants. } MAR 15 2004
)

MEMORANDUM OPINION AND ORDER

JAMES F. HOLDERMAN, District Judge:

On January 15, 2004, a jury returned a verdict in favor of plaintiff Willard Berge (“Berge”)
and against defendants Randall Industries, Inc. and Randall Rents of Indiana (collectively “Randall”)
and Production Workers Union of Chicago and Vicinity Local 707 (“Local 707”) on his claim that
Randall violated the seniority provisions of the collective bargaining agreement (“CBA”) by
terminating him instead of another employee with less job classification seniority and that Local 707
breached its duty of fair representation. By special verdict, the jury found that Randall had violated
the seniority provisions of the CBA and that Local 707 had acted in bad faith in failing to represent
Berge. (Berge Claim One Verdict Form.) The jury awarded Berge $9,061.76 in damages, allocated
evenly between Randall and Local 707. (Berge Damages Verdict Form at 2.) In addition, the jury

returned a verdict in favor of defendants on Berge’s claim that Randall terminated its employment

2



by special verdict that Local 707’s representation of Berge was not arbitrary or discriminatory.
(Berge Claim One Verdict Form.)
Furthermore, Berge points to no evidence supporting a finding that Local 707 subjectively

acted in bad faith, as is required by the law. See Konen v. Int’| Bhd. of Teamsters, Local 200, 255

F.3d 402, 408 (7th Cir. 2001) (holding that for the non-moving party to survive summary judgment,
and thus judgment as a matter of law, “he must identify conduct by union officials that would
support a reasonable inference of bad faith,” including the subjective motivation behind the union’s
decision not to arbitrate his grievance). Finally, the undisputed facts discussed in the previous
section of this opinion provide the only reasonable explanation as to why Local 707 failed to pursue
Berge’s grievance to arbitration: Local 707 believed, based on the agreed-upon provisions of the
CBA governing all bargaining unit employees, that Walker had been “laid off” and thus retained his
seniority rights when he returned to the driver position. At that time, because Walker had greater
seniority than Berge, Berge had no valid grievance, and Local 707 knew that pressing such a

grievance to arbitration would have been meritless. See Crider v. Spectrulite Consortium, Inc., 130

F.3d 1238, 1244 (7th Cir. 1997) (finding that union did not act in bad faith when it refused to take
a grievance to arbitration when, based on its reasonable interpretation of the collective bargaining
agreement, it believed that the grievant’s position was meritless). As this is the only reasonable
explanation supported by the undisputed facts, the jury was unreasonable in finding that Local 707

acted in bad faith, and judgment as a matter of law must be entered for the defendants.