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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY at LOUISVILLE CAUSE NO., Electronically Filed INTERNATIONAL BROTHERHOOD OF TEAMSTERS, PLAINTIFF LOCAL 2727 UNITED PARCEL SERVICE, INC. DEFENDANT SERVE: CT SERVICE COMPANY 421 WEST MAIN STREET FRANKFORT, KY 40601 COPY: Tony C. Coleman, Fsq FROST BROWN TODD, LLC 400 West Market Street, 32% Floor Louisville, KY 40202-3363 VERIFIED COMPLAINT FOR DECLARATORY AND, INJUNCTIVE RELIEF ‘The Plaintiff, International Brotherhood of Teamsters, Local 2727 (herein also colletive- ly referred to as “Union”, by counsel, hereby states the following cause of aetion against the De- (or “UPS"). The Union also simultaneously fendant, United Parcel Servic, Ine. (*Company moves for preliminary and thereafter permanent, iajunetive relief agsnst Defendant under Rule 65 ofthe Federal Rules of Civil Procedure. ‘This action is brought to prevent the potential loss of life or serious injury of members of the Union prior to a review of the Union's wellsfounded grievance and safety complaint under the parties” collective-bargaining agreement (‘the CBA” or “the Agreement”) In support thereof, the Union states as follows: Jurisdition 1. This action arises under the Railway Labor Act, as amended, 45 US.C§§ 151 et. seg. (“Act”). Jurisdiction over this action is conferred on this Court by 45 U.S.C. 153(9). 2. Theactions which are the subject matter of this lawsuit occurred within the ‘Westen District of Kentucky. ‘The Parties ‘The Union is a “representative” designated by the employees of the cartier to act for them within the meaning of the 45 U.S.C. § 151 Sixth. The Union represents, and at all times relevant hereto has represented, employees of the Company with- in this judicial distri. 4. UPS isa “carrier” within meaning of 45 U.S.C. § 151 Firs, incorporated under the laws of the State of Ohio and is authorized to do business in the Common- wealth of Kentucky, and does business in, and at all times relevant hereto has ‘done business in the Commonwealth of Kentucky and within this judicial district. ‘The Facts 5, The Union represents Aviation Ms aft Maintenance tenance Technicians, Ai Inspectors, Aireraft Maintenance Utility, Aireraft Maintenance Controllers, Lead lator Technicians and Aircraft Maintenance Service Technicians, Flight ‘Technical Publication personnel, Its located at various gateways throughout the 10, un United States with headquarters in Louisville, Kentucky ‘The dispute which isthe subject matter of this ation arses out ofthe Company's refusal to honor “red tags" of deficient “Phoenix lifts” that are the subject of a grievance number 2016-6862 filed on November 14,2016, «copy of which sat tached hereto as Exhibit 1 ‘Avthe time the grievance was filed, and ata times relevant hereto, the Company and the Union were pates tothe CBA. A tive and coret copy ofthe applicable provisions ofthe CBA is attached hereto as Exhibit 2. ‘Amile 1, Section 1() ofthe CBA states, “the Employer shall not haras, overly supervise or unfairly coerce employees in the performance oftheir duties.” ‘Astle 1, Section (8) ofthe CBA states, “Employees covered by this Agreement ‘will not be interfered with, retained, coerced, harassed, intimidated or dseimi- ated against by the Company, its officers, or agents because of membership in or lawful stivity on behalf ofthe Union, o anyother arbitary or unlawful reason.” Anicle 20 “Safety and Healt, Section (0), ofthe CBA states that the Company “agrees to maintain safe, sanitary, and healthful conditions in all work center fa- cilities.” Article 20, Setion (4) ofthe CBA states that “[n}o employee willbe required or signed 1 engage in any activity which a reasonable person would in good fth belive constitutes real threat of danger toa person or property.” ‘Astle 20, Section 5(b, ofthe CBA states that “[tJhe Employer shall not require fr ask employees to utilize equipment that has been appropriately tagged out of On November 12, 2016, an aircraft maintenance technician (“the AMT") who ‘works for the Company and isa member ofthe Union was working ona Bi truck that was equipped with a nineteen foot (19°) Phoenix Metals fi (8 “Phoenix Ji") A photograph ofa Phoenix lift is attached hereto as Exhibit 3) While the AMT was working on the Phoenix lift, welds on both sides ofthe it’s cylinder broke. These breaks caused theif to collapse while the AMT was inside it The Union will rer to this eollapse throughout this Complaint as the “No- ‘ember 12 Incident.” Photographs of a cracked fame is attached as Exhibit 36), During it investigation ofthe November 12 Incident, the Union discovered that the Phoenix lift that collapsed had a structural failure. Under Company safety procedures, equipment is marked with a “red tg” when safety concems about the equipment have been reported, and the “red tag” designates that the equipment may not be used until further inspection or repair. Photographs of “red tagged” lifts are attached as Exhibits 3(c)-, ‘The Company counsels its employees that “safety is everyone's responsi Photograph atached as Ex. 3(). As a result, Union stewards “red tagged” sus- pected lifts to prevent ther se prior to inspection. Sce Affidavit of Ralph Neo- politan atached hereto as Exhibit 4 Upon information and bli, the Company removed the red tags onthe Phoenix its without inspecting or repairing the li. See Affidavit of Ralph Neopoitan at tached hereto as Exhibit 4, 20. 21 2. 23, 24, Upon information and belief, the Company ordered its employees to conduct vis- ual inspections on red-tagged lift trucks and then operate the equipment if they id not see any problems. The Company also moved to discipline Union steward {or attaching “red tags” to suspected lifts. See Affidavit of Ralph Neopolitan at- tached hereto as Exhibit 4 Prior to the November 12! Phoenix it failure, several ather Phoenix lifts similar- ly filed. In late October 2016, another Company lift truck had failed and the lift hhad damaged an aireraft in ts uncontrolled descent. ‘The Company also had two major lift failures in 2014, The frst ofthese occurred on January 10, 2014. On this dat, a lit carrying two AMTs at SDF airport filed, tossing the AMTs to the ground, Both employees suffered serous injures Following the January 10, 2014, lift failure, the Company ordered an inspection (of 29 Phoenix lis. A copy ofthe campaign bulletin documenting ths inspection is attached as Exhibit 5 On January 18, 2014, another SDF lit dropped in an uncontrolled descent of ap- proximately 3 fet. During its 2014 inspection, the Company removed 9 Phoenix lifts from service for defects such as rusted welds and voids. Following the 2014 inspection, the Company replaced the lift actuator brackets on its 19° Phoenix lifts with actuator brackets with more weld area, ‘Upon information and belie, the 2014 actuator bracket replacements contributed to the 2016 failures ofthe Phoenix lifts. 27. 28, 29, 30. 31 On November 11, 2016, the Union fled a complaint withthe Kentucky Occupa- tional Safety and Health Administration regional office in Frankfort, KY, over the history of improper lift maintenance atthe Company. A copy ofthis complain tached hereto as Exhibit 6 ‘On November 14, 2016, the Union filed another complaint with the United States OSHA regional office in Frankfort, KY, over the November 12 Incident. A copy ofthis complaint i attached hereto as Exhibit 7. On November 14, 2016, the Union filed grievance number 2016-6862 over the "November 12 Incident This grievance alleged that the Company violated Actes 1 and 20 of the Agreement, and it requested three remedies: “Cease and desis di- reetng employees to operate unsafe equipment under threat of disipine, 2) ine petal suspect equipment immediatly,” and “(3) provide documentation forall inspections immediately.” On November 14, 2016, the Company issued & “Ground Support Informational Bulletin” directing Region and Distriet Automotive Managers to perform manda- tory inspection ofthe “Phoenix 19° Lifts” A copy of the Bulletin is atached hereto as Exhibit 8 On November 19, 2016, the Union, through its President Tim Boyle, discussed the November 12 Incident with the Company through is health and safety man- ager Tom Duval (On November 20, 2016, Mr. Duvall sent Mr, Boyle an e-mail message explaining ‘the steps the Company would take “to mitigate the scissor frame failure experi 33 34, 35, enced on the Phoenix Lifton November 12,2016. A copy ofthis e-mail mes- sage is attached hereto as Exhibit 9. In his November 20 e-mail to Me. Boyle, Mr. Duval admitted tha the Company Ind inspected 119 lifts and discovered tht 9 percent of them raised safety con- cems, He also admitted that six out ofthe 13 lifts that raised concems “had stress rack [sc] that could not be repaired,” and he admitted that all 6 were inthe SDF sport in Louisville In his November 20 e-muil to Mr. Boyle, Mr, Duvall announced the steps the Company would take because ofthe November 12 Incident. These steps di not Include the remedy the Union requested in its November 14 grievance, Instead of agreeing that employees no longer would be required to operate the unsafe lifts, Mr. Duvall announced that the company would continue t9 use all 13 lis tha created safety concerms, The 6 ieparably damaged lifts were to “remain in service with the lit disabled until main scissor frame is replaced.” The other 7 lifts would be “repaired” by “welding and reinforeing the area of concern to put the lifts bak inservice” In his November 20 e-mail to Mr, Boyle, Mr: Duvall announced that “AI 13 ffs will have the man scisor frame replace,” but he only commited to implement- ing the replacement “as soon a [se] pars become availabe.” (On November 21, 2016, counsel for the Union sent an e-mail message to counsel forthe Company. Attached to this e-mail message was ater in which the Union requested thatthe Company agree to immediately cease and desist from its use of 36. 31, 38 39, al. the damaged lis and alened the Company thatthe instant Complaint would be filed ifthe Company did not agree to the Union's request. A copy of this letter at tached hereto as Exhibit 10. (On November 23, 2016, the Union received a report thatthe Company’ was per forming welds on @ non-approved portion of the Phoenix lift and then covering the welds with a plate Its belived that the Company is performing the unap- proved modifications in order to return “red tagged” lifts to service, Forall ofthe above stated reasons, a reach of the agreement hes occurred and is continuing 9 occur, andlor further beaches ofthe agreement have been threat ned and will occur, unless and wl injunctive relies granted.