Opinion
00 Civ. 2845 (BSJ)
July 27, 2001
Order and Opinion
INTRODUCTION
Plaintiff Brandon Skolnik ("Skolnik") brings this action against the New York City Opera, Inc. ("NYCO") for breach of its collective bargaining agreement in violation of 29 U.S.C. § 185, and against the American Guild of Musical Artists ("AGMA" or "Union") for breach of its duty of fair representation pursuant to 29 U.S.C. § 159 and 189. Currently pending before the Court are Defendants' motions pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Plaintiff's Complaint for failure to state a claim. For the reasons set forth below, Defendants' motions are granted.
BACKGROUND
Skolnik has been employed as an Associate Dancer with NYCO since 1989, and has been a member in good standing of AGMA, the authorized collective bargaining representative for dancers employed by NYCO, since 1990. NYCO and AGMA are parties to a collective bargaining agreement that sets forth the wages, hours and other terms and conditions of employment for employees who are represented by the Union. See Am. Cmplt. ¶¶ 5-9.
In September 1997, Skolnik made some comments to a reporter which were published in the New York Observer on October 13, 1997. Skolnik alleges that, thereafter, as a result of his statements, Defendants engaged in "retaliatory practices" which deprived him of substantial income and professional opportunities. See Cmplt. ¶¶ 24-27.
Accordingly, on September 10, 1999, Skolnik initiated internal Union proceedings claiming four instances where the Union breached its duty of fair representation. First, he alleged that in July or August of 1998, NYCO gave him only four weeks advance notification of an engagement rather than the required six weeks. He claims that he asked AGMA representative Gene Vanasse to redress this alleged wrong, but did not receive assistance (the "Advance Notification Claim"). Second, he asserts that in or about December 1998 he learned that he deliberately was excluded from the cast of La Traviata. He maintains that he informed AGMA of this violation but that it failed to enforce his rights (the "La Traviata" Claim"). Third, Skolnik contends that, in or about September, 1999, Il Viagio A Reims was cast without auditions. Again, he alleges that he made AGMA aware of this violation, but that, again, it failed to enforce his rights (the "Il Viagio Claim"). Fourth, he asserts that, in or about September 1999, Ariodante was cast without notifying him of the auditions. Again, he allegedly made AGMA aware of this violation, but it failed to enforce his rights (the "Ariodante Claim"). See Cmplt. ¶¶ 11-13; 15-16; 18-19; 21-22; 28.
This Court notes that Skolnik did not allege during the internal Union grievance procedure that AGMA or NYCO had engaged in retaliatory practices because of his statements to the New York Observer reporter.
Pursuant to Article XIV of the AGMA Agreement, Constitution and By-Laws, an internal Union Hearing Panel (the "Panel") held a hearing on Skolnik's claims on December 2, 1999. At the hearing, the Panel asked Skolnik various questions, and permitted him to pose questions to the Panel. On December 16, 1999, the Panel rendered its decision and recommendation to the Board of Governors of the Union. The Panel concluded that Skolnik had failed to prove his claims of improper representation and administration of the grievance procedure. Specifically, the Panel found that Skolnik's Advance Notification Claim was unavailing because Skolnik had announced that he intended to take a leave-of-absence during the fall of 1998 prior to the notification date, and thus NYCO did not violate the Agreement by giving him only four weeks (rather than six weeks) advance notification of engagement. Regarding theLa Traviata, Il Viagio and Ariodante Claims, the Panel found that, because Skolnik never asked the Union to file grievances over these claims, the Union could not have breached its duty of fair representation. The Board of Governors adopted the full recommendation of the Panel and dismissed all of Skolnik's claims.
Thereafter, on or about February 25, 2000, Skolnik commenced this action claiming that NYCO and AGMA engaged in retaliatory practices against him for his statements that were published in the New York Observer. While it is not entirely clear from the Complaint, this Court presumes that the "retaliatory practices" Skolnik alleges are that NYCO violated the collective bargaining agreement and AGMA breached its duty of fair representation by failing to enforce his rights under the agreement on the four above occasions.
This action was initially brought in New York State Supreme Court. On April 13, 2000, Defendants removed this action to this Court pursuant to 28 U.S.C. § 1331; 1337 and 1441, on the grounds that Skolnik's claims arise under the laws of the United States.
DISCUSSION
Defendants moved to dismiss Skolnik's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that the Complaint fails to state a claim. Specifically, Defendants argue that Skolnik's Complaint must be dismissed because, among other things, he failed to exhaust the grievance procedure under the collective bargaining agreement and the internal Union remedies required by the AGMA Agreement, Constitution and By-Laws prior to commencing this action.
I. NYCO's Alleged Violation of the Collective Bargaining Agreement
The collective bargaining agreement between NYCO and AGMA contains a grievance procedure to resolve all claims in which a member alleges that NYCO has breached its obligations under the agreement. Specifically, the grievance procedure provides that "[a]ny controversy or claim arising out of or relating to this contract or the breach or interpretation thereof, shall be settled by [final and binding] arbitration in accordance with the rules, then obtaining, of the American Arbitration Association." See Basic Agreement, New York City Opera, Inc. and American Guild of Musical Artists, Inc., Article 10. Although Skolnik alleges that he attempted to voice his grievances to representatives of NYCO, it is undisputed that he did not attempt to file or pursue a grievance against NYCO regarding these claims through the collective bargaining agreement's grievance procedure.
It is well-settled that a plaintiff who seeks to enforce a right or obligation arising from a collective bargaining agreement must first exhaust the collective bargaining agreement's grievance procedures. See Clayton v. International Union, UAW, 451 U.S. 679, 681 (1981); Dougherty v. American Telephone and Telegraph Co., 902 F.2d 201, 203 (2d Cir. 1990). Failure to do so is fatal to the plaintiff's action unless the plaintiff alleges that invoking such procedures would have been futile.Maddalone v. Carpenters Local 17, No. 95 Civ. 2112 (JSM), 1996 WL 562986 at *6 (S.D.N.Y. 1996), aff'd in rel. part, 152 F.3d 178 (2d Cir. 1998). Since Skolnik failed to exhaust the grievance procedure under the collective bargaining agreement, and has not alleged it would have been futile to do so, his claim is barred. Accordingly, NYCO's motion to dismiss is granted.
II. AGMA Alleged breach of its Duty of Fair Representation
Article XIV of the AGMA Agreement, Constitution and By-Laws provides that unless the AGMA Boardf of Governors grants an exemption, members may not initiate a lawsuit against the AGMA prior to exhausting the Union's internal claims procedure. See AGMA Agreement, Constitution and By-Laws, Article XIV (setting forth the procedures that are the "exclusive remedy of a member who has or asserts a claim against the [Union] or any of its representatives."). Before commencing a lawsuit, Article XIV requires that the member: (1) file the claim with the Board of Governors in writing; (2) participate in a hearing in front of the Board regarding the claims; and (3) if dissatisfied with the Board's decision, appeal that decision within 30 days to either the membership of AGMA, or to neutral arbitration in accordance with the rule of the American Arbitration Association. See id. While Skolnik filed a claim with the Board of Governors and participated in a hearing regarding his claims, he did not appeal the Board's decision before initiating this lawsuit.
A member of a union who is dissatisfied with the union s representation in its role as the collective bargaining agent is not entitled to sue unless he has exhausted non-futile, adequate and reasonable internal union mechanisms. See Clayton, 451 U.S. at 690. A court in its discretion may excuse a union member from the exhaustion requirement, however, if: (1) union officials are so hostile to the member that he could not possibly obtain a fair hearing; (2) the internal, union mechanisms do not afford the member the opportunity to either reactivate the employee's grievance or award him the full relief he seeks; or (3) exhaustion would unreasonably delay the member's opportunity to pursue the claim in a judicial forum. See id. Skolnik has not alleged that the AGMA grievance procedures are futile. Where a plaintiff has not alleged that the union grievance procedures are inadequate or futile, it is the union's burden to show only that its internal mechanisms and remedy are reasonable in light of all the circumstances. See Rodriguez v. International Brotherhood of Teamsters, AFL-CIO, No. 98 Civ. 8849 (JSR), 1999 WL 816182 at *4 (S.D.N.Y. Oct. 13, 1999).
The Court finds that AGMA's greivance procedures are reasonable in light of the circumstances. First, the AGMA internal grievance procedure requires members to submit appeals from Board of Governors' decisions to a wholly distinct and neutral decision maker — an independent arbitrator or the membership of the AGMA — for fair and impartial consideration. This factor alone weighs against a suggestion that an appeal from the Union Panel's decision would be futile or that requiring a union member to pursue the appeals process is unreasonable. See Maddalone, 1996 WL 562986 at *6.
Second, AGMA's procedures permit the "reactivation" of a grievance against the employer and are capable of providing the member with the full relief he seeks. Maddalone, 152 F.3d at 187 (holding that to be deemed adequate, greivance procedure must permit reactivation or permit full relief) (citing Clayton, 451 U.S. at 692). First, the collective bargaining agreement between AGMA and NYCO does not set forth a time limit for filing a grievance. See Basic Agreement, New York City Opera, Inc. and American Guild of Musical Artists, Inc., Article 10. Therefore, AGMA would not have been barred from reactivating Skolnik's claims against NYCO for its alleged practices had the evidence revealed that NYCO breached the agreement. Second, Article XIV does not limit the type or amount of relief the Board of Governors may award. See AGMA Agreement, Constitution and By-Laws, Article XIV. Accordingly, the Board could have provided Skolnik with the full relief he sought.
Lastly, a union can demonstrate the reasonableness of its internal grievance procedures by showing that "`members have been informed of the availability of internal appellate remedies and that these procedures are not particularly cumbersome or confusing.'" Maddalone, 152 F.3d at 187 (quoting Johnson v. General Motors, 641 F.2d 1075, 1080 (2d Cir. 1981)). Here, the procedures for initiating an internal claim against AGMA, including the appeals process, are clearly stated in AGMA's Constitution. In addition, it cannot be disputed that Skolnik was aware of these procedures because he knowingly participated in the initial stages of the process. Moreover, the Court finds that Skolnik understood the requirements of the procedures, including his obligation to exhaust them, because his former counsel's letter commencing the grievance process acknowledged that the AGMA Constitution required exhaustion of the internal proceedings before permitting a lawsuit to be filed. See Cmplt. Ex. A at 1; Maddalone, 1996 WL 562986 at *6.
The Court also finds that AGMA's internal procedures would not have delayed unreasonably Skolnik's opportunity to pursue his claims in a judicial forum since the initial stages of the process were completed in approximately 90 days, and any appeal, which had to be requested within 30 days of the issuance of the Board of Governors' decision, probably could have been completed within a short amount of time thereafter. Accordingly, this Court finds that AGMA's internal grievance procedures were reasonable.
Since AGMA has shown that its internal procedures are reasonable, this Court will not excuse Skolnik's failure to exhaust its internal claims procedures. And, since Skolnik did not avail himself of the last step of AGMA's internal grievance process — appealing the Board of Governor's decision to the membership or to arbitration — this Court finds that his action against AGMA is barred.
CONCLUSION
For the reasons set forth above, Defendants' motions to dismiss are GRANTED. The Clerk of the Court is ORDERED to close this case.
SO ORDERED: