The opinion of the court was delivered by: FOLEY
MEMORANDUM-DECISION and ORDER
This litigation presents a novel and important question concerning the scope of § 301 of the Labor Management Relations Act (29 U.S.C. § 185). That is, this Court is called upon to determine whether § 301 is the source of substantive law for an employer's claim for damages against individual employees wherein it is alleged that the latter committed wholly Individualized and personal breaches of the terms of an existing collective bargaining agreement between the employer and the employees' bargaining representative; and which under the prevailing circumstances of the alleged breaches may be neither an unfair labor practice nor protected concerted activity.
The two cases before the court involve common questions of law and fact; therefore, they will be consolidated pursuant to Rule 42(a), Fed.R.Civ.Pro. Presently before the Court are defendants' separate motions for judgment on the pleadings in each case. Rule 12(c), Fed.R.Civ.Pro. The factual allegations and respective contentions of the parties are set forth below.
The plaintiff, New York State United Teachers, is an unincorporated association with its principal offices in Colonie, New York, within the territorial jurisdiction of the Northern District of New York. The defendants, Ronald Crawford and Wesley Thompson, former employees of the plaintiff, similarly reside within the territorial jurisdiction of this Court.
For purposes of subject matter jurisdiction, it is alleged that the plaintiff is an employer in an industry "affecting commerce" within the meaning of 29 U.S.C. §§ 142(1) and 185(a); and, that the defendants' bargaining agent, the Professional Staff Association, although not a party herein, is "a labor organization representing employees in an industry affecting commerce."
It is further alleged that pursuant to collective bargaining negotiations, the plaintiff and the Professional Staff Association executed a collective bargaining agreement, the duration of which, as amended, runs from September 1, 1974 to August 31, 1979; and, that its terms were operative and applicable to the two employee defendants at all times material to the substantive allegations of the complaint. The initial and amended bargaining agreements are annexed to the complaint as exhibits; therefore, they are considered "a part thereof for all purposes." Rule 10(c), Fed.R.Civ.Pro.
The gravamen of plaintiff's complaint centers upon the defendants' alleged breach of the provisions set forth in Article VI § O of the collective bargaining agreement, such provisions encompassing the definitions, scope, procedures, criteria and conditions relative to "educational leave" for plaintiff's employees.
The specific allegations pertaining to the defendants' alleged breach of the express contractual requirements set forth in the collective bargaining agreement are as follows.
It is alleged that defendant Wesley Thompson was employed by the plaintiff from March 1, 1974 to February 25, 1976; that he applied for and was awarded "extended educational leave" for the purpose of enrolling in various courses at Cornell University; that defendant was accorded a leave of absence from his usual employment with full pay; that such educational leave commenced on September 1, 1975 and concluded on December 20, 1975; and, that on February 25, 1976, defendant submitted a letter of resignation to plaintiff which was accepted.
It is alleged that defendant Ronald Crawford was employed by the plaintiff from July 1, 1970 to February 25, 1976; that he applied for and was awarded an "extended educational leave;" that defendant was accorded full pay during his leave of absence; that such leave commenced on January 26, 1976 and concluded on or about May 28, 1976; and, that on February 25, 1976, defendant submitted a letter of resignation to the plaintiff which was accepted.
By such conduct, it is alleged that defendants breached the express contractual provisions which required: 1) that "an employee shall submit some proof of completion of the leave at the conclusion thereof," Article VI § O subd. 9 of Exhibit 1; Article VI § O subd. 5 of Exhibit 2; and 2) that "an employee who is granted an extended leave shall be obligated to remain in the employ of NYSUT, subsequent to the conclusion thereof, for at least the same duration of such leave. If such employee returns for a shorter period of time, he/she shall pay into the educational leave fund a pro-rata portion of the expenses of such leave." Article VI § O subd. 10 of Exhibit 1; Article VI § O subd. 6 of Exhibit 2. Thus, it is alleged that defendants neither submitted proof of completion of the extended educational leave; nor, remained in plaintiff's employ for a period equal to the duration of the leave.
It is further alleged that defendants Thompson and Crawford incurred expenses during their educational leave of $ 11,487.77 and $ 4,059.58, respectively. Finally, it is alleged that defendants Thompson and Crawford are additionally responsible for the sum of $ 154.21 and $ 395.54, respectively, such amounts based on a travel advance of $ 500.00 less the amounts for unreimbursed travel vouchers. Although Article IX § B of the collective bargaining agreement does provide for an annual $ 500.00 travel advance, there are no provisions directed to the return of unused portions of that annual advance. Nevertheless, plaintiff alleges that the long-established custom and practice between plaintiff and the bargaining unit is to return the advance upon an employee's termination of employment with the plaintiff.
As previously noted, the question presented herein calls for what I believe is a novel interpretation of 29 U.S.C. § 185. Plaintiff places considerable reliance upon the liberal judicial gloss evident in the case law under 29 U.S.C. § 185. Defendants, on the other hand, urge that the language of the statute itself, its legislative history and relevant case law do not contemplate imposition of individual liability upon employees.
As a threshold matter, it is essential to engage in some procedural housekeeping. Defendants have denominated their present motion as one for judgment on the pleadings. Rule 12(c), Fed.R.Civ.Pro. Defendants, however, have not filed answers. Rule 12(c) specifically provides for motions for judgments on the pleadings "after the pleadings are closed . . . " By contrast, motions premised upon any of the enumerated defenses set forth in Rule 12(b), " . . . shall be made before pleading . . . "
As a matter of procedural accuracy, therefore, a Rule 12(c) motion may not be made by a defendant until after he has answered. See Federal Commerce & Navigation Co. v. M/V Marathonian, 392 F. Supp. 908, 909 n.1 (S.D.N.Y.), Aff'd per curiam, 528 F.2d 907 (2d Cir. 1975), Cert. denied, 425 U.S. 975, 96 S. Ct. 2176, 48 L. Ed. 2d 799 (1976); 5 Wright & Miller, Fed.Prac. & Pro. § 1367 (1969). Accordingly, the present motions of the defendants shall be considered as motions to dismiss for failure to state a claim upon which relief can be granted. Rule 12(b)(6), Fed.R.Civ.Pro.
The Court has given careful consideration to the various contentions urged herein; and, although the question is a close one, it is my judgment that defendants' consolidated motions to dismiss must be denied.
A brief survey of the leading cases decided by the United States Supreme Court under § 301 discloses that this provision has experienced myriad application in the enforcement of collective bargaining agreements. Thus, § 301 has been applied to suits to compel arbitration of employee grievances such as rates of pay, hours of work and work assignments, E. g. Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S. Ct. 912, 1 L. Ed. 2d 972 (1957); to obtain specific enforcement of an arbitor's award, United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960); to recover wage increases in a dispute regarding the validity of the collective bargaining agreement, Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S. Ct. 519, 7 L. Ed. 2d 483 (1962); to suits against individual union members for engaging in "wildcat" strikes in violation of a no-strike clause, Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S. Ct. 1318, 8 L. Ed. 2d 462 (1962); to individual employee suits against their employer to vindicate individual rights arising from a collective bargaining agreement, Smith v. Evening News Association, 371 U.S. 195, 83 S. Ct. 267, 9 L. Ed. 2d 246 (1962); to union suits against an employer to vindicate employee rights under a contract which the union obtained, Auto Workers v. Hoosier Corp., 383 U.S. 696, 86 S. Ct. ...