Opinion
No. 03-CV-5912 (JBW).
November 1, 2004
Leavitt, Kerson Duane, New York, NY, By: Paul E. Kerson.
Jonathan Silver, Kew Gardens, NY, For Plaintiffs Wilma Clarke, Marie Brown, Ruby Huggins and Geraldine Parks:
Meyer, Suozzi, English Klein, P.C., New York, NY, By: Lowell Peterson, For Defendant Communication Workers of America.
Akin Gump Strauss Hauer Feld, LLP, New York, NY, By: Gregory W. Knopp, Joel M. Cohn, Melissa L. Dulski, For Defendants ATT Corp., Lucent Technologies, Inc., and Avaya, Inc.
MEMORANDUM, JUDGMENT ORDER
I. Introduction
This is a hybrid section 301-fair representation suit. Plaintiffs are former employees of American Telephone and Telegraph Corporation ("ATT") and were members of the Communications Members of America (the "Union").
Plaintiffs sue the Union on the theory that it breached its duty of fair representation by failing to grieve a 1992 failure to recall them as laid-off employees. They sue ATT pursuant to section 301 of the Labor Management Relations Act for allegedly breaching the Collective Bargaining Agreement (the "Agreement").
"To prevail against either the company or the Union, . . . [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating a breach of duty by the Union." DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 165 (1983) (internal quotations omitted). Here there was no breach of the duty of fair representation. The complaint against both defendants must be dismissed.
II. Relief Sought and Procedural History
A. The Union's Motion
Seeking summary judgment, the Union claims that it did not breach its duty of fair representation and that, in the alternative, the claims are time-barred.
B. ATT's Motion
ATT maintains that, with discovery complete, the undisputed evidence shows that the plaintiffs' claims are time-barred and that ATT did not breach the Agreement by failing to recall the plaintiffs in August 1992.
C. Pre-Discovery Motions
All parties — plaintiffs, the Union and ATT — filed motions for summary judgment, before discovery. Summary judgment was denied. See Clarke v. Communications Workers of Am., 318 F. Supp. 2d 48 (E.D.N.Y. 2004).
D. Post-Discovery Motions
Defendants claim that, following discovery, no material facts are in dispute. The record supports their position. For the reasons stated below, defendants' motions for summary judgment are granted. The opinion denying summary judgment is superseded. See id.
III. Facts
ATT, then a large conglomerate with over a million employees, was divided into many internal subdivisions, each with its own seniority under the Agreement. Plaintiffs worked in the Business Sales Division as Service Order Administrators in New York City. Until 1991 they worked in Market Delivery Centers, which were a part of the Business Sales Division.In January 1991 ATT eliminated the Market Delivery Centers as part of a reorganization of the Business Sales Division. The functions of the Centers were divided and transferred to already existing business units, Business Communications Systems ("Systems") and Business Communications Services ("Services"). As a result of the reorganization, former employees of the Business Sales Division, including plaintiffs, were transferred to either Systems or Services, depending on their job functions. The Business Sales Division was eliminated.
Shortly thereafter, ATT discharged all employees in the Services and Systems divisions. Plaintiffs were laid off along with other employees during a first round of staff reductions in February 1991 (the "1991 layoffs"). Approximately three weeks later, the company conducted a second round of layoffs that resulted in the permanent closing of Systems in New York City.
Plaintiffs Parks, Huggins, and Brown were all laid off in the first round. During discovery, Plaintiff Clarke testified that she was not laid off in 1991, and that she instead took a special leave of absence from April 16, 1991 to October 16, 1992. Upon Clarke's return from her leave of absence, her employment was terminated.
The Union filed a timely grievance alleging that ATT violated the Agreement by laying off employees based on their seniority in Systems and Services, instead of their seniority in the Business Sales Division. The layoff grievances were submitted to binding arbitration in 1991. In April 1994 Arbitrator Raymond Goetz decided in favor of the Union, finding that ATT should have laid off employees using the unified seniority list in the Business Sales Division instead of the split seniority lists for Systems and Services. The Arbitrator ordered that the grievants be made whole for the improper layoffs.
The 1991 layoffs were governed by a collective bargaining agreement that expired on May 30, 1992. The Union and ATT negotiated a new agreement in 1992 that took effect on May 31, 1992. The language relevant to layoffs and recalls in both agreements was identical.
In August 1992, while the 1991 layoff arbitration was pending, and before Arbitrator Goetz issued his opinion, ATT initiated a recall of employees to Services (the "1992 recall"). None of the plaintiffs, all of whom had been employed by Systems, were recalled.
The Union did not file a grievance challenging the 1992 recall. Discovery has revealed that plaintiffs never formally requested — either verbally or in writing — that the Union file a recall grievance on their behalf despite the fact that they knew of the recall at or near the time it occurred.
In determining a "make whole" remedy for the 1991 layoffs pursuant to the Goetz 1994 layoff decision, the Union argued that the remedy should include a remedy for the 1992 recall.
While the Union had not presented the 1992 recall question to Arbitrator Goetz, it argued that ATT utilized the same impermissible split seniority list in the 1992 recall that it had used in the 1991 layoffs. From the Union's perspective, the basis for relief was identical. The Union asked ATT to incorporate the 1992 recall into the "make whole" relief calculus, including back pay and reinstatement. ATT declined, arguing that the Goetz decision on the order in which people were laid off in 1991 did not control the order in which people were recalled in 1992. ATT refused to put the Union's request to Arbitrator Goetz.
In 1997 the Union filed suit in a Washington, D.C. district court, seeking to enforce the 1994 arbitration award. It sought a ruling that either: (a) the Goetz award should be enforced by directing ATT to reinstate and pay the individuals (including plaintiffs) or (b) the issue should be remanded to Arbitrator Goetz. The district court ordered the parties to return to the arbitrator to determine how the 1992 recall affected the "make whole" relief granted in the 1994 decision.
In 1999, after failed attempts to communicate with Arbitrator Goetz, the parties were informed that he was too ill to further arbitrate their dispute. The Union and ATT selected a new arbitrator. For no known reason, this second arbitrator failed to issue a decision. As late as 2002, the parties were awaiting action from the second arbitrator.
In September 2002, three of the four plaintiffs filed suit in this court alleging that the Union violated its duty of fair representation by failing unilaterally to terminate the second arbitrator. They then voluntarily withdrew that complaint because ATT and the Union agreed to employ the services of a third arbitrator.
The third arbitrator, Jack Clarke, issued an opinion on October 16, 2003. He found that the employees were entitled to back pay from the date they were laid off in 1991 (the first round) until the second 1991 layoff (the second round), approximately three weeks later. He declined to determine if the make whole relief included back pay from the date of the 1992 recall, because the Union had failed to grieve it.
Plaintiffs' case essentially is based on the undisputed fact that the Union did not grieve the 1992 recall.
IV. Law
A. Summary Judgment Standard
Summary judgment may be granted where it is shown that there is "no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). "The court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998). Once the moving party has made a properly supported showing sufficient to suggest the absence of any genuine issue as to a material fact, the nonmoving party, in order to defeat summary judgment, must come forward with evidence that would be sufficient to support a jury verdict in his favor. See Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (quoting Bryant v. Maffucci, 923 F.2d 979, 98 (2d Cir. 1991), cert. denied, 502 U.S. 849 (1991)). The motion "will not be defeated merely . . . on the basis of conjecture or surmise." Id.
B. Statute of Limitations
The statute of limitations for a hybrid section 301-fair representation claim is six months. See DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 166 (1983). The general rule is that a claim accrues on the date the employee "knew or reasonably should have known that [a breach of the duty of fair representation] had occurred." Kavowras v. N.Y. Times Co., 328 F.3d 50, 55 (2d Cir. 2003) (quoting Santos v. Dist. Council of N.Y. City, 619 F.2d 963, 969 (2d Cir. 1980)). In Kavowras, the court held that the statute of limitations began to run when the plaintiff became aware that the union had failed to file a grievance. Id. at 56.
In the first opinion denying summary judgment in the instant case Ghartey v. St. John's Queens Hosp., 869 F.2d 160 (2d Cir. 1989), was cited as instructive. Clarke v. Communications Workers of Am., 318 F. Supp. 2d 48, 54 (E.D.N.Y. 2004). The Ghartey case involved "a situation in which a union represented an employee throughout an arbitration hearing, through to its termination by the arbitrator's issuance of an award." 869 F.2d at 163. The court in Ghartey thought it unwise to require an employee to bring suit against her union based on its poor representation before learning the result of the union's efforts. The court noted that adherence to the general rule as stated in Kavowras would require an employee to sue the union while the union was still representing her; it recognized the possibility that the union and employee could prevail in arbitration despite poor representation, thereby obviating the need for a lawsuit based on inadequate representation. "In such a case, intervention by the district court would be unnecessary, superfluous and wasteful." Id. Where a plaintiff's complaint is based on inadequate union representation during arbitration, the limitations period begins running on the date of the final arbitration order and award. See id.
In this case, discovery revealed that the plaintiffs never attempted to grieve the 1992 recall, despite the fact that they knew about it in time to do so. Nor did plaintiffs request that the Union grieve the 1992 recall. Ghartey does not apply where the plaintiffs, as here, are not challenging the Union's representation in a filed grievance. In Ghartey, the plaintiff filed a claim regarding the union's breach of the duty of fair representation less than six months after the arbitrator rendered his decision. The plaintiffs in the instant action, by contrast, filed a claim eleven years after the union failed to file a grievance regarding the 1992 recall. Given the facts developed in discovery, it is now apparent that Kavowras, not Ghartey, controls the statute of limitations question.
C. Duty to Exhaust Contractual Remedies
Plaintiffs' fair representation claim would not succeed, even if the court could reach the merits, because discovery has conclusively demonstrated that plaintiffs failed to grieve the 1992 recall and failed to request the Union to do so, thereby failing to exhaust their contractual remedies. "As a general rule in cases to which federal law applies, federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress." Republic Steel Corp. v. Maddox, 379 U.S. 650, 652 (1965) (emphasis in original); see also Flanigan v. Int'l Bhd. of Teamsters, 942 F.2d 824, 829 (2d Cir. 1991) ("Because appellants did not ask the Union to process a grievance on this issue, they cannot complain that the Union failed to represent them properly.").
The language of the Agreement determines whether actions to initiate the grievance process qualify as "attempted" uses of the grievance procedure. In Schum v. South Buffalo Ry. Co., the plaintiff wrote a letter to the union office and subsequently was assured that the union would take up his grievance. 496 F.2d 328 (2d Cir. 1974). The union failed to follow through with the grievance and, after being sued, claimed on summary judgment that the plaintiff had not exhausted the administrative processes. The court found that there was an "attempt" to use the official procedures, and that the plaintiff's suit was not barred for lack of exhaustion. Id. at 331-32. Likewise, in Scott v. Anchor Motor Freight, Inc., a "timely sent" and "properly addressed" letter was a "sufficient attempt to invoke the collective bargaining agreement's grievance procedure." 496 F.2d 276, 279 (6th Cir. 1974).
Plaintiffs have demonstrated nothing akin to the Schum or Scott attempts. To the contrary, discovery leaves no room for doubt; plaintiffs did not attempt to file a grievance or to request that the Union file a grievance on their behalf respecting recalls. It cannot be said that they did not know how to grieve, because they had grieved the 1991 layoffs. Plaintiffs' failure to grieve or request that the Union grieve the 1992 recall, established for the first time in discovery, forecloses the possibility left open in the prior summary judgment decision that "an `attempt' to notify under the controlling and persuasive caselaw" was made. Clarke v. Communications Workers of Am., 318 F. Supp. 2d 48, 57 (E.D.N.Y. 2004).
D. Duty of Fair Representation
An inquiry into the union's behavior begins with the "language contained in the collective bargaining agreement." Spellacy v. Airline Pilots Assoc.-Int'l, 156 F.3d 120, 127 (2d Cir. 1998). The Court of Appeals for the Second Circuit "has recognized that a union may breach its duty when it fails to process a meritorious grievance in a timely fashion with the consequence that arbitration on the merits is precluded." Young v. United States Postal Svc., 907 F.2d 305, 308 (2d Cir. 1990).
"To establish a breach of duty of fair representation `[t]he union's conduct must, first, have been arbitrary, discriminatory or in bad faith, and second, it must have seriously undermine[d] the arbitral process.'" Mack v. Otis Elevator Co., 326 F.3d 116, 129 (2d Cir. 2003), cert. denied, 124 S. Ct. 562, 157 L. Ed. 2d 428 (2003) (quoting Barr v. United Parcel Serv., 868 F.2d 36, 43 (2d Cir. 1989)). When an employee claims that the union's decision not to file a grievance is a breach of the duty of fair representation, courts first determine whether the union's conduct can be characterized as arbitrary. See e.g., Cruz v. Loc. Union No. 3 of the Int'l Bhd. of Elec. Workers, 34 F.3d 1148 (2d Cir. 1994).
In Cruz, the plaintiffs verbally grieved their employer's actions. The union did not investigate the validity of their complaints nor did it file a grievance on their behalf. The Court of Appeals for the Second Circuit ruled that mere negligence on the part of the Union is not enough to negate fair representation; it analyzed the standard for fair representation as follows:
Included in the union's duty of fair representation "is the fair and prompt consideration and, if dictated by controlling legal standards, processing on behalf of employees of their claims under contract dispute resolution procedures," . . ., although the duty of fair representation is not breached where the union fails to process a meritless grievance, engages in mere negligent conduct, or fails to process a grievance due to error in evaluating the merits of the grievance.34 F.3d at 1153-54 (quoting Ames v. Westinghouse Elec. Corp., 864 F.2d 289, 293 (3d Cir. 1988)). Young and Cruz both discuss the failure to process a filed grievance. In the present case, plaintiffs did not file a grievance. In Mack v. Otis Elevator Co., the Court of Appeals held that a Union's actions could not be deemed "arbitrary, discriminatory, or in bad faith" where the plaintiff failed to comply with the Union's grievance procedures. 326 F.3d at 129 ("There is no evidence that the Union's actions in failing to file a grievance were `arbitrary, discriminatory, or in bad faith.' [The Union] never filed a grievance because [the plaintiff] never requested that it do so.")
V. Application of Law to Facts
A. Failure to Represent Fairly
Even if plaintiffs had grieved the 1992 recall, discovery established that the Union did not breach its duty of fair representation. To the contrary, the Union consistently sought relief for the plaintiffs for the 1992 recall over more than a ten year period. The Union took action sua sponte, in arbitration and the courts, and fought a long, difficult legal battle. The Union might have won this battle had it timely brought the 1992 recall to Arbitrator Goetz's attention as part of the 1991 layoff grievance. But this failure was at most negligence, and, in view of the plaintiffs' failure to grieve, probably not even that.
The Union's decision not to grieve the 1992 recall cannot be deemed arbitrary, discriminatory or in bad faith where the plaintiffs never requested that the Union file a grievance and where the Union consistently supported the plaintiffs' claims, albeit without success.
B. Statute of Limitations and Other Defenses
In view of the decision on the main point of adequate representation by the Union there is no reason to rule on: (1) the statute of limitations; (2) the Union's claim that plaintiffs, having failed to properly grieve, cannot sue; (3) ATT's defense that its recall order was proper under the Agreement; and (4) the additional grounds alleged for the dismissal of Plaintiffs Clarke and Parks.
VI. Conclusion
Defendants' motions for summary judgment are granted. No costs or disbursements.
SO ORDERED.