Nonetheless, summary judgment should be granted where no
reasonable trier of fact could find in favor of the non-moving
party. H.L. Hayden Co. of New York v. Siemens Medical Systems,
Inc., 879 F.2d 1005, 1011 (2d Cir. 1989), and to enable the
court to dispose of meritless claims before becoming entrenched
in a costly trial. Donahue, 834 F.2d at 58 (citing Knight v.
U.S. Fire Insurance Co., 804 F.2d 9, 12 (2d Cir. 1986), cert.
denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987)).
The Local's Denial of Helmer's Request to Initiate a Grievance
Paragraph 32 of the Contract by its terms calls for Helmer's
reinstatement. What is at issue is whether or not the leave of
absence granted to Helmer was revoked or altered by the events
of 1979, his cash-out. From the discussion that follows, and
the ink that has flowed on the subject, the issue is difficult
and calls, into play conflicting concerns, the requirements of
the Internal Revenue Code and the Contract between the Local
and Con Ed.
There is no question but that at the time that Helmer made
his request of the Local to pursue his grievance, success in
that proceeding would have produced a result contrary to the
position taken by the leadership of the Local at that time,
namely, that Helmer was no longer a member of the Local and,
therefore, was barred from participating in its affairs as he
was then seeking to do.
It is also apparent that it was in the interest of the
officers of the Local to establish the proposition advanced by
Helmer, that cashing-out did not affect reinstatement rights
and that reemployment under the Plan should be construed as
reinstatement. For the reasons set forth below, these
positions, though entirely arguable, are not sound as a matter
of law. However, there can be no question but that their
adoption would have been in the best interests of the officers
of the Local, as a general proposition, Helmer's particular
election status as a candidate for union office aside.
Section 301 of the Labor Management Relations Act creates
subject matter jurisdiction over suits for violation of
contracts between an employer and a labor organization.
Normally, individual employees in the unit may not bring
actions under § 301. Their exclusive remedy for alleged
breaches of the collective bargaining agreement is through the
grievance and arbitration procedures. Only if a union breaches
its duty of fair representation by wrongfully refusing to
proceed with the grievance, can an employee sue both the union
and the employer under § 301. See generally Vaca v. Sipes,
386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).
When Helmer sought reinstatement in November 1988, his
employment status was at issue, and he sought a determination
of that status and enforcement of his rights as a member of a
collective bargaining unit of employees. See McTighe v.
Mechanics Educational Society of America, Local 19,
772 F.2d 210 (6th Cir. 1985); Karo v. San Diego Symphony Orchestra
Association, 762 F.2d 819 (9th Cir. 1985); Toth v. USX Corp.,
693 F. Supp. 693 (N.D. Ill. 1988), aff'd, 883 F.2d 1297 (7th
Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 544, 107 L.Ed.2d
Under these circumstances, the Local improperly denied
Helmer an opportunity to file a grievance to resolve the very
issue raised by the cash-out which, if resolved in his favor,
would permit him to continue his challenge to the acts of the
Local's officers. While the ultimate resolution is not in his
favor, Helmer had a right to a grievance and having been
denied that right, has jurisdiction under § 301 to state a
claim against Con Ed.
Cashing-Out Terminated Employment
In 1979 when Helmer elected to receive the cash-out, he
completed and signed the Con Ed form headed "Consolidated
Edison Pension and Benefits Plan, Interim Form, Benefits
Statement For Terminating Vested Employee" (emphasis added).
The form contained the following terms:
If a "cash out" is elected, and you are later
reemployed, all rights to your accrued vested
pension based on the accredited years of service
included in determining
your deferred pension cited above will be
satisfied and suspended until such time as you
repay the full amount of such "cash out" with
interest at 5 1/2% per annum compounded annually
from date of cash out to date of payment.
On the form, Helmer signed in the space indicating that his
rights had been fully explained to him and that he was
electing to take a cash-out. At the bottom of the form there
is another reference to the "terminating employee" to whom its
contents are directed. Helmer was given a termination
interview, his cash-out request received the necessary
approvals, and his name appeared on Con Ed's official listing
of "retiring" employees.