cannot reasonably be deemed to constitute an 'agency' within 5 U.S.C. § 551(1)"). Thus, the Court concludes that plaintiffs' original Complaint against Administrator Ellis must be dismissed for failure to establish jurisdiction over the subject matter.
Plaintiffs seek to cure the Complaint's jurisdictional deficiencies in a proposed Amended Complaint which invokes the Court's jurisdiction under Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, and adds the New York Times as a party defendant. Leave to amend a complaint should be "freely given when justice so requires." Fed. R. Civ. P. Rule 15(a). However, such leave may be denied when the proposed amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962). A proposed amendment is futile if the amendment fails to state a claim for relief. See Leonelli v. Pennwalt Corp., 887 F.2d 1195, 1198-99 (2d Cir. 1989).
Plaintiffs propose to add the Times as a party defendant pursuant to Fed. R. Civ. P. Rule 19(a)(1), on the grounds that, absent participation by the Times in this action, complete relief cannot be accorded among those already parties. Plaintiffs' theory for proceeding under § 301 of LMRA is that the Times violated § 4-A.2(g) of its collective bargaining agreement with the NMDU and the terms of the Consent Decree (see para. 25), by failing regularly to update its Group I and Group III lists and that the Administrator failed to "take all actions . . . as he deems necessary to implement the provisions and ensure the performance of the Order," (Consent Decree at para. 4) by permitting the Times to neglect its duty to update the lists. Proposed Amended Complaint at paras. 6-8.
Plaintiffs could have raised this argument before the Administrator. If they failed to do so in their proceedings before him on Claim 255, they may not do so now collaterally. Plaintiffs cite Martin v. Wilks, 490 U.S. 755, 104 L. Ed. 2d 835, 109 S. Ct. 2180 (1989), as support for the proposition that since they, as workers, were not original parties or privies to the Patterson action, they "are allowed to bring collateral suit against any decision pursuant to the Patterson Consent Decree that affects their hiring status under the Collective Bargaining Contract." Plaintiffs' Memo. In Opposition to Dismissal of the Complaint at 3. That case, however, is inapposite to the facts of the present action. In Martin, persons not parties to a Consent Decree challenged the Decree on the ground that it caused racial discrimination in their employment. The Supreme Court upheld respondents' right to bring the challenge since they had neither litigated nor participated in the initial proceeding. Unlike the respondents in Martin, plaintiffs in the instant action are not challenging the implementation of the Consent Decree. Indeed, plaintiffs have pursued their claims under that Agreement before Administrator Ellis, and a determination as to their rights was made. They cannot now bypass the affirmation of the Determination of the Administrator in Claim 255 by attempting to bring a new action in this Court under a different legal theory which seeks the same relief as was sought in Claim 255. That decision is res judicata as to them.
Even if plaintiff's were permitted to bring an action seeking the same relief that was sought in Claim 255, plaintiffs' Proposed Amended Complaint fails to state a viable cause of action under Section 301. Section 301 permits an individual to sue his employer and union for violation of a collective bargaining agreement.
In order to proceed against the Times under Section 301, the employee must "at least attempt to exhaust exclusive grievance and arbitration procedures established by the bargaining agreement." Vaca v. Sipes, 386 U.S. 171, 184, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967); see also Clayton v. International Union, 451 U.S. 679, 68 L. Ed. 2d 538, 101 S. Ct. 2088 (1981). In the instant case, a grievance procedure is contained in the collective bargaining agreement. Plaintiffs, as persons covered by the collective bargaining agreement,
were obligated to request that the NMDU argue before the Impartial Chairman that the labor contract had been violated. Plaintiffs cannot show that they attempted to proceed in this manner.
Plaintiffs cannot avoid the consequences of this general rule by claiming that this case comes within one of several exceptions. The first involves a situation in which the conduct of the employer amounts to a repudiation of the contractual procedures so that the employer "is estopped by his own conduct to rely on the unexhausted grievance and arbitration procedures as a defense to the employee's cause of action." Vaca, 386 U.S. at 185. Plaintiffs' Proposed Amended Complaint does not allege that the Times took steps to frustrate the plaintiffs' processing of a complaint with the Union. In the absence of such an allegation, plaintiffs cannot rely upon this exception.
Similarly, plaintiffs cannot argue that the "futility" exception would operate to excuse their failure to exhaust the grievance procedures provided in the collective bargaining agreement. That defense has been successfully invoked where attempts to exhaust contractual grievance procedures have been made and have failed. See, e.g., Glover v. St. Louis-San Francisco Railway, 393 U.S. 324, 331, 21 L. Ed. 2d 519, 89 S. Ct. 548 (1969). Plaintiffs have not complained to the Union respecting an alleged violation by the Times of a provision of the collective bargaining agreement. "Consequently [plaintiffs have] not demonstrated that initiation of formal grievance procedures would be futile." D'Amato v. Wisconsin Gas Co., 760 F.2d 1474, 1488 (7th Cir. 1985).
Nor have plaintiffs alleged any facts which would indicate that the NMDU would breach its duty of fair representation if it determined not to process plaintiffs' claim against the Times for failure to revise the Group I list (assuming plaintiffs had made such a request). An indispensable predicate to a Section 301 action is a demonstration that the Union breached its duty of fair representation. United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 62, 67 L. Ed. 2d 732, 101 S. Ct. 1559 (1981). To establish such a breach, the employee must prove that the union's conduct was arbitrary, discriminatory, or in bad faith. See Vaca, 386 U.S. at 190. A showing of mere negligence or errors in judgment will not support a conclusion that the duty has been breached. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71, 47 L. Ed. 2d 231, 96 S. Ct. 1048 (1976).
Plaintiffs' argument that the NMDU favors over them the transferees from the New York Post, direct competitors for the Group I positions that plaintiffs seek, does not convince the Court that any refusal of the Union to process plaintiffs' complaint against the Times would be in breach of its duty of fair representation. See Proposed Amended Complaint at para. 11. The NMDU is forced to make difficult choices regarding which persons are to fill a finite number of positions on the Times Group I list. The settlement of Claim 266 which resulted in the transfer of 47 Post employees to the Times was a reasonable exercise of the NMDU's duty to resolve the competing claims of different groups of workers to those positions.
The NMDU has a duty to represent plaintiffs fairly; however, plaintiffs have pointed to no circumstances indicating that the Union has done otherwise. Advocacy by the Union on behalf of the Post transferees, even if to plaintiffs' detriment, does not mandate a conclusion that the Union breached its duty of fair representation. The Court concludes that plaintiffs' failure to attempt to exhaust the grievance procedures provided in the collective bargaining agreement would preclude this Section 301 claim, thus rendering futile any proposed amendment of the Complaint.
For the foregoing reasons, the motion for leave to amend the Complaint is denied, and the Complaint is dismissed for lack of subject matter jurisdiction.
Dated: New York, New York
January 10, 1992
William C. Conner
United States District Judge