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WEEKS v. LOCAL 1199

July 26, 1995

RICHARD WEEKS, RICHARD VELEZ, CARMEN ASCENIO, PAUL BECKFORD and DAVID RODRIGUEZ, Plaintiffs,
v.
LOCAL 1199, DRUG, HOSPITAL and HEALTH CARE EMPLOYEES UNION (PRESIDENT, DENNIS RIVERA), Defendant and Third Party Plaintiff, v. SOUTH BRONX MENTAL HEALTH COUNCIL, INC., Third Party Defendant



The opinion of the court was delivered by: DEBORAH A. BATTS

 DEBORAH A. BATTS, U.S.D.J.

 PROCEDURE

 Plaintiffs bring this action claiming damages as a result of a breach of the Defendant union's duty of fair representation, breach of the union's constitution, and violations of 29 U.S.C. § 411. Local 1199, Drug, Hospital and Health Care Employees Union ("Defendant"), moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, Defendant's motion is granted in part and denied in part.

 STATEMENT OF FACTS

 Plaintiffs Richard Weeks, Richard Velez, Carmen Ascenio, Paul Beckford and David Rodriguez are all present or former members of the Defendant union. On separate occasions each Plaintiff filed grievances with the Defendant claiming that the employer had violated the collective bargaining agreement. Each Plaintiff's claim, except for Rodriguez', centers essentially on the Defendant's decision that the grievances should not be submitted to arbitration. In general, the Complaint alleges three main causes of action: 1) the Defendant's decision not to submit the grievances to arbitration amounted to a breach of the union's duty of fair representation under § 301 of the Labor Management Relations Act; 2) the Defendant breached its constitution by failing to notify the Plaintiffs of their right to appeal the decision not to submit their grievances to arbitration; and 3) the Defendant violated 29 U.S.C. § 411.

 Plaintiff Carmen Ascenio ("Ascenio") has been employed as a clerk typist by the South Bronx Mental Health Council, Inc. ("SBMHC") for more than twenty four years. As the result of the December 1990 departure of another clerk typist in her department, Ascenio's work load increased. See Ascenio Aff. at 2. The additional work was of the same nature and required the same level of skill as her previous duties. See Valdez Aff. at 3, P 8. Assisted by her delegate, Richard Weeks *fn1" ("Weeks"), Ascenio filed a grievance claiming that SBMHC had substantially modified her job and, in so doing so, violated the collective bargaining agreement.

 Union Vice President Nelson Valdez ("Valdez") reviewed Ascenio's grievance. In his judgment, the facts of Ascenio's case did not support a claim of substantial modification because the tasks assumed by Ascenio did not involve any difference in work hours, responsibility or skill. See Valdez Aff. at 3, P 8; Ascenio Aff. Exh. 4 at 1-2.

 Valdez decided that the grievance should not be submitted to arbitration. Nevertheless, he attempted to reach a settlement of Ascenio's grievance by expressing his appreciation of her work, assigning some of her work to other departments, and assigning someone to cover her work on her break and lunch hour. See Valdez Aff. at 3, P 10; Ascenio Aff. Exh. 4 at 2.

 Plaintiff Richard Velez ("Velez") worked as a porter-handyman at SBMHC from 1990 to 1992. On June 11, 1991, Velez received a warning notice for failure to follow a supervisor's instructions. See Velez Aff. Exh. 1A at 7. On June 14, 1992, he received a second warning notice for essentially the same violation. See Id. at 6. Assisted by Weeks, Velez grieved his two warning notices and requested that they be removed from his personnel file. For at least ten years it has been the union's practice and policy to refrain from submitting warning notices to arbitration. See Valdez Aff. at 4, P 13. This policy is based on a balancing of the expense of arbitration with the low probability of winning such cases and the lack of any real damage flowing from the warning notices. See id. Consistent with its policy, the Defendant union did not submit Velez's grievance to arbitration. See id. at P 14.

 Plaintiff Weeks was employed by SBMHC as a case supervisor from May, 1965 through August, 1991. Weeks was absent on three consecutive work days in October, 1991, but refused to comply with management's request for proof of illness pursuant to Article VII *fn2" of the union's collective bargaining agreement. As a result, SBMHC docked him for three days' pay. Weeks grieved management's actions and lost. See Weeks' Aff. Exh. 1B at 1. In May, 1991, Weeks was again absent from work for three consecutive days and again refused management's request for proof of illness. SBMHC docked Weeks for three days pay. Weeks grieved this decision claiming that Article VII only required proof of illness after four consecutive days of absence. Management denied Weeks' grievance and Weeks asked the union to submit his grievance to arbitration. See Weeks Aff. Exh. 6 at 1.

 Valdez concluded that Weeks' interpretation of Article VII could not be supported by the history of the collective bargaining agreement and would not be sustained in arbitration. See Valdez Aff. at 5, PP 17-20. Thus, the Defendant declined to submit Weeks' grievance to arbitration. Id. at 6, P 21.

 Plaintiff Paul Beckford ("Beckford") was employed by SBMHC as an activities therapist from September 1989 to September 1991. On September 12, 1991, Beckford was terminated by SBMHC for poor job performance and inappropriate behavior. See Beckford Aff. Exh. 3 at 1. Beckford grieved his termination, and his grievance was denied by SBMHC. Beckford's grievance was reviewed by union organizer Marcia Nembhard and by Valdez. It was determined that the grievance was not meritorious and should not be submitted to arbitration. See Valdez Aff. at 6, PP 23-24.

 The Defendant decided not to submit Beckford's grievance to arbitration for several reasons: in less than two years Beckford had received ten warning notices; in March of 1991, SBMHC suspended Beckford for poor job performance for five days, and put him on notice for sixty days; Beckford was a short term employee; and, Beckford had falsified his employment ...


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