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TRANSIT-MIX CONCRETE CORP. v. LOCAL UNION NO. 282

September 14, 1986

TRANSIT-MIX CONCRETE CORPORATION, Petitioner,
v.
LOCAL UNION NO. 282, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN and HELPERS OF AMERICA, Respondent-Cross-Petitioner



The opinion of the court was delivered by: SPRIZZO

SPRIZZO, D.J.

BACKGROUND

The basic facts underlying this action are not in substantial dispute, and are as follows. Petitioner Transit-Mix Concrete Corporation ("Transit-Mix") and respondent-cross-petitioner Local Union No. 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Local 282" or the "Union") have, for many years, been parties to collective bargaining agreements ("CBAs"). See Declaration of Robert Sasso ("Sasso Dec.") at P 2. These agreements have provided for the arbitration of all disputes. See, e.g., Ex. A to Sasso Dec. ("1984-87 CBA") *fn1" at P 23(b); Ex. A to Affidavit of Alexander A. Miuccio ("Miuccio Aff.") ("1978-1982 Contract") at P 23(b). *fn2"

 On February 13, 1976, Transit-Mix entered into an agreement with Colonial Sand and Stone Co., Inc. ("Colonial") to purchase Colonial's accounts receivable, to assume certain Colonial projects, and to purchase Colonial's major tangible assets -- its ready-mix concrete trucks and its four yards. Each company had entered into CBAs with Local 282. On March 24 and May 14 of 1976, hearings were conducted by Arbitrator Milton Rubin to determine the Transit-Mix seniority status of the former Colonial drivers as a consequence of Transit-Mix's "buy-out" of Colonial. In June of 1976, Rubin determined, inter alia, that the Colonial drivers who had lost their employment because of the buy-out were to be placed at the bottom of the Transit-Mix seniority lists. See Ex. B to Sasso Dec.

 In 1979, after three years' use of the Colonial seniority list when needed, Transit-Mix objected to continued use of the list, ostensibly "because of the lapse of time and difficulty in contacting the [former] Colonial [drivers] to shape-up for work." See Petitioner's Memorandum of Law ("Pet. Memo") at 2. After a hearing before a Labor-Management Dispute Panel, which deadlocked, see Sasso Dec. at P 4, the dispute was submitted to an impartial arbitrator in accordance with § 23 of the 1978-82 CBA. On June 21, 1979, the parties presented to Arbitrator Herbert K. Lippman the following issue:

 What is the reasonable length of time within which an employee of the Company must shape up, call or contact the Company to remain part of the Company work force and retain his seniority?

 See Ex. B to Miuccio Aff. at 1; Ex. C to Sasso Dec. at 1.

 On June 27, 1979, Lippman issued his award. The award states simply:

 An employee who does not shape up, call or contact the Company for work for a period of one year, shall be deemed to have abandoned his position with the Company and shall no longer be considered an employee of the Company.

 See Ex. B to Miuccio Aff. at 6; Ex. C to Sasso Dec. at 6.

 After being informed of the arbitration award in early 1980, Ted Katsaros, a former Colonial driver, filed an unfair labor practice charge with the National Labor Relations Board ("NLRB"). Katsaros charged, inter alia, that Local 282, "in complicity with Transit-Mix," failed to adequately notify him and the other Colonial drivers that the Lippman arbitration was taking place, and of the terms of the Award. See, e.g., Ex. C to Miuccio Aff. *fn3" Subsequent to investigation and a hearing before an Administrative Law Judge, the NLRB found that, "[b]y arbitrarily, and without lawful and legitimate reason, failing to notify employees it represents of the terms of an arbitration award significantly altering the requirements to be fulfilled to maintain their seniority," the Union had breached its duty of fair representation. See Local 282, 267 N.L.R.B. 1130 (1983); Ex. D to Miuccio Aff. at 7, P 3.

 In its Order, subsequently enforced by the Second Circuit, see NLRB v. Local 282, 740 F.2d 141 (2d. Cir. 1984), the NLRB directed that Local 282:

 (2)(a) Request the arbitrator who heard the arbitration at issue herein to reopen the proceeding to provide for notice of the terms of the award to affected employees and a retroactive grace period for those employees who have been ...


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