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June 9, 1983

Rev. Herbert BYRD, Plaintiff,
LONG ISLAND LIGHTING COMPANY, International Brotherhood of Electrical Workers, Local 1049, Defendants

The opinion of the court was delivered by: BRAMWELL


 BRAMWELL, District Judge.

 Plaintiff, the Reverend Herbert Byrd, a black man, brings this action for unfair employment practices against defendants pursuant to the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981 (1976) *fn1" as well as Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e et seq. (1976). *fn2" For a pendent state law claim plaintiff alleges a violation of section 296 of the New York State Executive Law. (McKinney 1982). *fn3" In addition, he sues defendant Local 1049 (1049) for unfair representation pursuant to section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1976). It is plaintiff's contention that from the time of his initial hire by defendant Long Island Lighting Company (LILCO) on August 11, 1969, he was subjected to a discriminatory regime of seniority and testing merely because he was a black man. In addition, it is his contention that defendant Local 1049 of the International Brotherhood of Electrical Workers did not fairly represent him in connection with complaints he lodged arising out of these occurrences. He alleges that LILCO acquiesced and/or participated in this latter practice.

 Both defendants now move for orders granting them summary judgment pursuant to Rule 56(c) of the Fed.R.Civ.Pro. Local 1049 also moves for leave to amend its answer pursuant to Rule 15(a) of the Rules. Rule 56 provides that where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law then judgment shall be entered. In making the determination, any doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Adickes v. Kress & Co., 398 U.S. 144, 157-159, 90 S. Ct. 1598, 1608-1609, 26 L. Ed. 2d 142 (1970). Moreover, "On summary judgment the inferences to be drawn from underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962). With these principles firmly in hand the court turns to a review of the record before it.


 A) Plaintiff's Initial Hire

 Defendant LILCO, a combination gas and electric utility corporation, is the principal supplier of gas and electricity for Long Island, New York. The Northport Power Station (Northport) is LILCO's largest power generating facility, operating 24 hours a day, 365 days a year. Defendant Local 1049 is recognized as the exclusive bargaining agent for all of LILCO's maintenance and service employees, including those employed at the LILCO Northport facility. Defendants LILCO and 1049 have engaged in collective bargaining for these employees since 1947.

 In 1968, LILCO, with the assistance of the National Alliance of Businessmen and the Nassau and Suffolk Commission on Human Rights established an employment program for the economically disadvantaged called the "JOBS" Program. Pursuant to the terms of this program LILCO undertook to provide training and employment opportunities for unemployed persons living within Nassau and Suffolk Counties. Participants in this program included the black as well as non-black "hardcore" unemployed.

 At LILCO's Northport facility there are, among others, two job titles describing certain categories of manual labor. The job title of "Utilityman" is used to describe a general category of laborer requiring no special or unusual skill. The job title of "Mechanic" is used to describe a class of skilled workers. Mechanics are further broken down into five major skill categories, viz, electrical, general mechanical, millwright, welding, and machine work. The job title of utilityman is the first in a sequence one progresses through en route to the title of "Mechanic A-1", the highest skill level a mechanic can achieve with LILCO. *fn4"

 On August 11, 1969, plaintiff was hired into the Northport facility as a utilityman pursuant to the JOBS program. As such, plaintiff was considered to be an "over-the-complement" employee. Such an employee, in contrast to a "regular complement" employee, is one assigned on an extraordinary basis to a company department in excess of the "regular complement" of employees for that unit. Shortly after his hire, plaintiff became a member of the Local 1049 bargaining unit encompassing LILCO maintenance and service employees -- including those employed at Northport.

 B) Promotion Under The LILCO/1049 Collective Bargaining Agreement.

 At all times relevant to this case LILCO and 1049 agreed to a job posting and bidding system for regular complement employees in the Electric Production Department, including Northport, whereby permanent promotions, as well as transfers and temporary upgrades, are based upon the seniority of qualified employees. To be eligible for promotion, transfer, or temporary upgrade one must be the most senior qualified employee as determined in this job posting and bidding process provided for in the LILCO/1049 collective bargaining agreement.

 Since 1947 two distinct types of seniority for regular complement employees have been contemplated by the LILCO/1049 collective bargaining agreement. The first, "company" seniority, begins accruing on the date the employee is hired into any department by LILCO. By contrast, "unit seniority" begins accruing on the date an employee enters on to service in a specific department (seniority unit) as a regular complement employee. It is plaintiff's unit seniority status within the Electric Production Department at Northport which is in dispute in this case.

 To be qualified for promotion an employee must also have satisfactorily completed a prescribed course of company-sponsored training and testing in the designated skill category, e.g. electrical, general mechanical, millwright, welding, or machine work. Thus, if one is determined to be the most senior qualified employee for a posted vacancy (she) would be selected pursuant to the terms of the LILCO/1049 agreement. *fn5" Plaintiff also complains of the nature of this testing in the case. *fn6"

 The LILCO/1049 seniority agreements have historically recognized a difference between "regular complement" and "over the complement" employees. Until 1968, the collective bargaining agreement did not specifically mention the status of over-the-complement employees. Rather, the defendants entered into various oral and written agreements addressing these differences. In 1968, however, LILCO and 1049 began formalizing these earlier agreements via various letter agreements.

 Under these latter agreements it was confirmed that candidates for participation in the JOBS program were hired into LILCO facilities as over-the-complement employees without reference to the seniority provisions of the LILCO/1049 agreement as applied to the job posting and bidding procedure mentioned above.

 Furthermore, they provided that such employees were not subject to the seniority provisions and job bidding and posting requirements applicable to regular complement employees. Finally, these agreements provided for the opportunity for JOBS employees to bid for vacancies in the regular complement group but only to the extent that such appointment did not impinge on the collectively bargained rights of regular complement employees.

 It was pursuant to the terms of these latter agreements that plaintiff was hired as an over-the-complement utilityman at Northport on August 11, 1969.

 C) Plaintiff's 1971 Complaints

 On January 20, 1971, plaintiff first inquired of Mr. R. Hill of LILCO, a person responsible for employee development under the JOBS program, when he would be eligible for regular complement status at Northport. Mr. Hill responded that regular complement positions were available and that if plaintiff desired one he should participate in the posting and bidding system provided for by the LILCO/1049 agreement.

 On March 12, 1971, plaintiff formally challenged differences between the seniority procedure in the JOBS and regular complement systems by filing charge TNY-1-1291 against defendants with the Equal Employment Opportunity Commission (EEOC). Shortly thereafter, on May 20, 1971, he filed a similar charge against LILCO with the New York State Division of Human Rights. Both charges alleged that plaintiff had been denied the opportunity to become part of the regular complement at Northport because he was black and that less qualified whites had been promoted instead. *fn7"

 On June 2 the state charges were dismissed on a finding of no probable cause. EEOC charge TNY-1-1291 was eventually dismissed by the EEOC on April 30, 1973 upon a finding of no reasonable cause to believe plaintiff's charges were true. Along with this determination the EEOC sent a document entitled "Explanation of Judicial Review" which advised plaintiff that if he wished to sue in federal court he could do so by requesting, in writing, a "Right to Sue" letter. Plaintiff first requested such a letter in December of 1982, almost ten years later. As far as the record reveals no such letter was ever issued for the 1971 charge.

 The District Director, in the April 1973 determination itself, went on to note that he found reasonable cause to believe that certain of LILCO's practices with respect to treatment of minority employees violated Title VII. The determination concluded by stating that a representative of the Commission would be in touch to try and resolve these matters. In the interim, on July 12, 1971, plaintiff was selected to fill a regular complement vacancy at Northport. He was retroactively assigned a unit seniority date of August 11, 1969 -- the date of his initial hire as an over-the-complement employee with LILCO.

 As a result of negotiations between the parties concerning the April 30, 1973 determination a conciliation agreement was subscribed to by LILCO and the EEOC on July 31, 1974 settling case No. YNY-3-412 with the EEOC. *fn8" That agreement provided for, among other things, the remedying of effects of LILCO's discriminatory practices which occurred within two years prior to the signing of the agreement. One of the classes of employees specifically designated as being entitled to the benefit of the agreement was a class of blacks who sought employment with or promotion within LILCO -- a class which included plaintiff.

 D) The January 1973 Seniority Adjustment

 In January 1973, while the original EEOC charges were still pending, LILCO and 1049 entered into an agreement resolving certain seniority grievances raised by eight white male mechanics at Northport. These employees contended that even though they enjoyed longer company and unit seniority at Northport than plaintiff, the retroactive fixing of plaintiff's Northport seniority date as August 11, 1969 deprived them of superior unit seniority they should have been enjoying. Accordingly, the January 1973 agreement provided for seniority status for these eight white employees superior to plaintiff's. Plaintiff's seniority date of August 11, 1969 was left intact. Defendants' justification for the adjustment was the portion of the letter agreements between defendants providing that if an over-the-complement employee bid into a regular complement position (she) could not do so to the detriment of collectively bargained rights of regular complement employees such as these eight persons. Defendants rationalized that giving plaintiff retroactive seniority credit for time he spent at Northport as an over-the-complement employee represented just such a prohibited practice.

 E) Plaintiff's 1975 Complaints

 On August 9, 1975 plaintiff once again complained to the EEOC under the 1971 EEOC charge number TNY-1-1291 because four B Mechanics junior to him were temporarily upgraded to Mechanic A-1. Once again he raised concerns about his company testing and his seniority status at Northport as being the reason for denial of this temporary upgrade. Shortly thereafter, on August 17, 1975, plaintiff filed new EEOC charge no. TNY-6-0222 against LILCO and TNY-6-0223 against 1049 raising similar concerns. The charges were supplemented on December 10, 1975. Both complaints were referred to the New York State Division of Human Rights which waived jurisdiction. On August 31, 1976 the EEOC issued determinations finding reasonable cause to believe that defendants' conduct with respect to plaintiff's seniority violated Title VII. It declined, however, to find similar violations with respect to plaintiff's remaining contentions. On November 9, 1976, plaintiff received notices of right to sue with respect to these two actions. On January 19, 1977, plaintiff filed a grievance under the LILCO/1049 agreement because he was bypassed for a temporary upgrade to Mechanic A-1 by one of the eight white males whose seniority was adjusted in January of 1973. The business representative for 1049 responded in writing to the grievance. He stated that resolution of the dispute would be deferred to the State and Federal Administrative bodies then considering the charges and that, in his opinion, LILCO's treatment of plaintiff was in all respects consistent with the Collective Bargaining Agreement. Plaintiff filed this suit on February 4, 1977. *fn9" Plaintiff ultimately achieved Mechanic A-1 status in 1980 and is presently employed at Northport in that capacity.


 Preliminarily, the court shall dispose of defendant 1049's motion to amend its answer. Defendant moves pursuant to Rule 15(a) of the Federal Rules of Civil Procedure to amend its answer to include the three defenses of statute of limitations, lack of jurisdiction over the state claims, and failure of the plaintiff and the EEOC to defer the charges to the appropriate state agency pursuant to 42 U.S.C. § 2000e-5(e).

 Rule 15(a) provides, in pertinent part, that

"A party may amend his pleading once as a matter of course at anytime before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given where justice so requires . . .."

 Also instructive here is Rule 8(c) which states that certain affirmative defenses, including the statute of limitations, shall be set forth in a responsive pleading. Fed.R.Civ.Pro. 8(c). If such a defense is not so raised it is waived unless leave to amend the relevant pleading is granted. See Strauss v. Douglas Aircraft Co., 404 F.2d 1152, 1155 (2d Cir.1968).

 The Supreme Court, in Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962) spoke to the factors to be evaluated in considering a ...

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