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HELMER v. BRIODY

September 26, 1990

HENRY J. HELMER, PATRICK BENCIVENGO, JAMES CROW, WILLIAM DODD, JOHN DUFFY, JAMES KELLY, JACK LOPEZ, JAMES MOTTETT, CHARLES PISCOPO, MANUEL SANCHEZ, PHILIP VARRICHIO AND JOHN WALSH, JR., PLAINTIFFS,
v.
EUGENE BRIODY, JOSEPH ZUMMO, JACK MURPHY, MICHAEL COTTER, RICHARD BESTOFF, EACH IN HIS INDIVIDUAL CAPACITY ONLY; ANTONIO SANCHEZ, IN HIS OFFICIAL CAPACITY AS SECRETARY-TREASURER OF LOCAL 102, UWAU, AFL-CIO AND IN HIS INDIVIDUAL CAPACITY; JOSEPH FINO; AND LOCAL 1-2, UTILITY WORKERS UNION OF AMERICA, AFL-CIO, AND CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., DEFENDANTS.



The opinion of the court was delivered by: Sweet, District Judge.

OPINION

Defendant Consolidated Edison Company of New York, Inc. ("Con Ed") has moved for summary judgment in accordance with Rule 56, Fed.R.Civ.P., to dismiss the action against it brought by plaintiff Henry J. Helmer ("Helmer") to obtain reinstatement by Con Ed. The motion was heard and submitted on July 6, 1990 and in accordance with facts and conclusions set forth below is granted.

This motion is perhaps almost the last skirmish, albeit a vital one, in the battle Helmer has waged since the fall of 1989 to recover his position with his union, the Utility Workers Union of America, Local 1-2, AFL-CIO (the "Local"), to participate in union elections, and to be restored to his former employment with Con Ed. In terms of the individual, the result reached here is harsh and the institutional requirements unyielding. The equities as between employer and employee would dictate that Con Ed should return Helmer to the post of Senior Coordinator which he held in July 1971 when he went on leave as an officer of the Local. However, the events of the ensuing 19 years altered Helmer's rights, an alteration which he failed to foresee when he "cashed out" in 1979. That failure, the Internal Revenue Code, and the language of the Consolidated Edison Pension and Benefits Plan (the "Plan") have combined to produce a result which has deprived Helmer of employment in the field and with the employer with which he is familiar.

Prior Proceedings

The opinion of August 18, 1989 set forth the proceedings to that date, and that opinion with its findings and conclusions and definitional terms are incorporated here.

Since August 1989, in ways not material to this resolution, Helmer pursued his efforts to participate in the affairs of the Local and to obtain employment with Con Ed. A pretrial conference was held to that end on December 6, 1989, and various orders were entered with respect to discovery and motion schedules. By order of July 23, 1990 and stipulations so ordered on August 10, 1990, the pending issues were narrowed to the motion by Con Ed to dismiss Helmer's claim for reinstatement. Certain other claims and counterclaims between Helmer and the Local relating to their relationship remain outstanding.

The Facts

The submission on this motion requires no modification of the facts previously found and set forth in the opinion of August 18, 1989, except as set forth below. No factual dispute has been presented with respect to those facts or those set forth below.

Helmer was first employed by Con Ed on August 8, 1955. On April 15, 1960 he resigned and on March 6, 1961 was reemployed as an Outside Plant Helper. He continued to work for Con Ed until September 30, 1961, when he took a military leave of absence from the company.

Helmer was reemployed in October 1963 and continued in the active employ of Con Ed until July 1971, when he became an officer of the Local and took a three month leave of absence, which was later extended. He held the clerical title of Senior Coordinator when he went on leave of absence. His leave continued undisturbed and unchallenged until his discharge as Business Manager of the Local in November of 1988.

In 1974 Congress enacted the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. ("ERISA"). In accordance with this new law and the Internal Revenue Code, Con Ed developed a new pension plan. The Plan provided that an employee's entitlement to a pension, upon attainment of the requisite age and years of service, became vested after ten years of active employment. In addition, an employee not yet eligible to receive a pension was entitled to withdraw ("cash-out") the cash value of that vested pension benefit upon the termination of his or her employment relationship with Con Ed, including the portion contributed by the employer. A summary description of the Plan was mailed to all employees, to the Local, and to the attention of James Joy, the Business Manager of the Local.

To claim a cash-out under the Plan, an employee had to complete and sign the "Con Edison Pension and Benefit Plan, Interim Form, Benefits Statement for Terminating Vested Employee" ("Benefits Statement for Terminating Vested Employees") (applicable when years of age plus years of service equal less than 75 at termination). Employees who were terminating their employment relationship with Con Ed and who were vested in the pension system were required to sign this document to cash out their pension benefits.

In 1979 Helmer sought and received a cash-out of his pension benefits amounting to $5860.40. He was counselled concerning his pension and other rights and he signed the Benefits Statement for Terminating Vested Employees.

After Helmer's removal from his office as Business Manager of the Local in 1988, he sought reinstatement to the Senior Coordinator job he had last held in 1971 or to a similar job, pursuant to Article VIII, Paragraph 32 ("Paragraph 32") of the 1986-89 collective bargaining agreement between Con Ed and the Local (the "Contract"), which provides for leaves of absence for employees who are union officers. Senior Coordinator is one of the top clerical jobs under the Contract. Con Ed concluded that Helmer had terminated his leave of absence by virtue of his cash-out and was not covered by Paragraph 32. The responsible Con Ed officers did not consult with any officer of the Local concerning Helmer's request.

Helmer requested the Local to file a grievance against Con Ed for its refusal to reinstate him. After an investigation of its own, the Local determined that Paragraph 32 did not cover Helmer.

Helmer then filed charges against both Con Ed and the Local with the National Labor Relations Board ("NLRB"), alleging, as he has here, that the Local breached its duty owed to him by failing to process his grievance to arbitration and that Con Ed breached the Contract by refusing to reinstate him under Paragraph 32. The NLRB dismissed both charges. The dismissals were affirmed on appeal to the NLRB's General Counsel.

On May 1, 1989, Helmer resumed employment with Con Ed at an entry level post only to be terminated on medical grounds. Con Ed affords leaves of absence of no more than a year to employees for pregnancy, child care, education, and personal reasons. While employees are on such leaves of absence, they are considered inactive employees and can normally expect to be reinstated to their former positions, or substantially similar positions, upon return to work. If employees resign or are terminated during leaves, however, the leaves are terminated and expectations of reinstatement end. Thereafter, if employees wish to return to work, they would normally be treated as applicants for reemployment. Con Ed's Industrial Relations Department is generally aware of which union officers are on leave pursuant to Paragraph 32.

The Issue

Four questions are presented for resolution by the ...


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