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March 22, 1993


The opinion of the court was delivered by: CAROL E. HECKMAN

 This case was referred to the undersigned by the Hon. Richard J. Arcara for a report and recommendation on Defendants' motions for summary judgment pursuant to 28 U.S.C. ┬ž 636(b)(1).

 For the reasons set forth below, the District Court should grant Defendants' motions.

 The Plaintiff, Joyce Schwarz, worked for Defendant Trico Products Corp. from August, 1964, until she retired on December 13, 1991. She was a member of the United Automobile Workers Union ("UAW"), and UAW Local 2100, both of which are named as Defendants.

 Since approximately 1986, Trico has transferred much of its work from its Buffalo plants to other Trico facilities, particularly those in Brownsville, Texas and Matamoros, Mexico, "for a variety of economic reasons" (Affidavit of Carl DiRienzo, Item 14, P 4). As of October, 1992, this transfer had resulted in a reduction of the Trico Buffalo work force from approximately 525 salaried and 2,011 hourly employees to 252 salaried and 336 hourly employees (id.).

 In the spring and summer of 1991, Trico and UAW engaged in negotiations for a collective bargaining agreement. During these negotiations, Trico advised the Union that downsizing of the Buffalo operations would continue, and that only certain "core" operations would remain in Buffalo. Die cast machining, which was Plaintiff's job, was not considered "core," and was slated for elimination (id., P 6).

 Also during the collective bargaining negotiations, and in anticipation of significant layoffs resulting from its continued relocation of its Buffalo operations, Trico proposed an early retirement or severance incentive plan, referred to as the "Windows of Opportunity" program. This program was reduced to writing in a document dated October 30, 1991 (Item 14, Exh. A), but was not specifically included in the new collective bargaining agreement. It offered an early retirement/layoff incentive in the form of increased pension benefits or an enhanced cash severance package to employees who elected permanent layoff on or before December 13, 1991. A permanent layoff would mean the loss of seniority for the employee with no recall rights.

 Prior to the ratification of the new collective bargaining agreement on November 8, 1991, Trico distributed to its Buffalo employees a detailed explanation of the benefits available under the two "Windows" incentive options, as well as the impact which selection of either option would have on an employee's recall rights (Item 14, Exh. B).

 The new collective bargaining agreement allowed the company to hire new employees in any "A" pool position at the rate of $ 7.00 per hour (Item 14, Exh. D, p. 61). The "A" pool was plaintiff's job classification and was defined as "jobs that require little experience or training" (id., p. 23). Under that provision, new employees could be hired to fill those "A" pool positions, but only after recall from layoff of employees with seniority (id., p. 61) The purpose of this provision was to maintain sufficient personnel to replace those employees who elected one of the "windows."

 On November 19, 1991, Plaintiff elected to take permanent layoff under the cash severance option. She received $ 20,625.00 in three payments. Under the plan, she remained eligible for unemployment and pension benefits, but forfeited her seniority and recall rights. Her permanent layoff became effective on December 13, 1991.

 On June 15, 1992, Plaintiff filed this action under unspecified sections of the Labor Management Relations Act ("LMRA"), claiming that Trico fraudulently induced her into early retirement in order to continue its die casting operations with employees who worked for substantially reduced wages. She alleges that her department has not ceased operations, but instead has hired "150 additional employees at reduced wages of $ 7.00 per hour" (Item 1, P 19). Plaintiff also claims that, based on the same facts, the UAW breached its duty of fair representation.

 Defendants now move for summary judgment on the grounds that: (1) the complaint fails to state a cause of action upon which relief may be granted under LMRA since it fails to allege breach of the collective bargaining agreement; (2) the claim is time-barred under the applicable six-month statute of limitations, since the claim accrued on or before December 13, 1991, and was not filed until June 15, 1992; and (3) ...

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