termination. Instead, Plaintiff asked Plotnick whether the Union could represent her at a hearing she had requested subsequent to her unsuccessful appeal from the denial of unemployment benefits. Id. 37, 40-41; Tr. 252 (1/25/96)(testimony of Larry Plotnick). Plotnick informed Plaintiff that the Union did not get involved in matters relating to unemployment benefits. Tr. 252 (1/25/96)(testimony of Larry Plotnick).
31. Plaintiff commenced the instant action on December 17, 1993.
CONCLUSIONS OF LAW
I. The Statute of Limitations
Del argues that Plaintiff's cause of action is time-barred, contending that Plaintiff was on notice on June 9, 1993, at the latest, that the Union would take no further action with respect to her termination. Plaintiff, on the other hand, maintains that she was not advised until sometime in August 1993 that no further steps would be taken on her behalf by the Union. Therefore, Plaintiff urges, the commencement of the instant action on December 17, 1993, falls well-within the limitations period.
In the seminal case of Del Costello v. Int'l Bhd. Of Teamsters, 462 U.S. 151, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983), the United States Supreme Court established a six-month limitations period for hybrid Section 301/fair representation actions. Id. at 172. The date the limitations period begins to accrue "is not necessarily the date that the employee is notified of a final adverse determination with respect to a grievance." Demchik v. Gen. Motors Corp., 821 F.2d 102, 105 (2d Cir. 1987). Instead, the period begins to run "when a plaintiff knows or reasonably should know that the union has breached its duty of fair representation.'" Buttry v. Gen. Signal Corp., 68 F.3d 1488, 1492 (2d Cir. 1995)(quoting Flanigan v. Int'l Bhd. Of Teamsters, Truck Drivers Local 671, 942 F.2d 824, 827 (2d Cir. 1991)).
In the case at bar, the Union president, Larry Plotnick, testified that the Union decided definitively not to take Plaintiff's case to arbitration on June 18, 1993, subsequent to Plotnick's informal meeting with Charles Schneck, Del's director of human resources. See Findings of Fact P 27. Even crediting, which the Court did not, Plotnick's testimony that he thereafter telephoned Plaintiff sometime between June 18 and June 22 to tell her the Union "couldn't get her back to work," the commencement of this action on December 17, 1993, falls within the six-month limitations period.
In any event, Plotnick's direction to Plaintiff during their July 1, 1993, telephone conversation to contact him should her appeal of the denial of unemployment benefits prove successful, at which time he would "see what [he could] do with the company," hardly manifests an unequivocal intention by the Union that it would no longer represent Plaintiff's interests with respect to the termination. Not until sometime in August 1993, after Plaintiff advised Plotnick that her appeal had been denied, and Plotnick stated there was nothing further he could do, did the limitations period begin to run. See Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 165 (2d Cir. 1989)("Where a union . . . decides to stop assisting a member, . . . a breach of duty by the union is apparent to the member at the time she learns of the union . . . inaction about which she complains."). Accordingly, Plaintiff's action was filed timely.
II. The Section 301/Fair Representation Hybrid Cause of Action
A Section 301 hybrid cause of action brought by an employee involves two constituent claims. The suit against the employer is grounded upon Section 301 because the employee is claiming that the employer violated the provisions of a collective bargaining agreement. The grievance procedures set forth in collective bargaining agreements, however, as is the case here, usually provide the exclusive means for resolving industrial labor disputes; consequently, the employer is entitled to rely upon the finality of a grievance decision reached with the union, who is acting as the individual employee's exclusive collective bargaining representative. Therefore, to be entitled to judicial review of the claim, an employee must show a breakdown in the grievance process itself. Accordingly, the second claim in a hybrid cause of action is against the Union for breach of its duty of fair representation. See Del Costello, 462 U.S. at 164. Nevertheless, the two claims are "inextricably interdependent," and it is not enough that an employee demonstrates a breach of the collective bargaining agreement by her employer, to be successful against either the employer or the union, the employee first must shoulder her burden of establishing the union's breach of its duty. Id. at 164-65; Young v. United States Postal Serv., 907 F.2d 305, 307 (2d Cir. 1990).
B. The Union's Duty of Fair Representation
A union's duty to represent fairly its employees is not codified; instead, it "is implied under the scheme of the National Labor Relations Act." Del Costello, 462 U.S. at 164. Generally, "'as the exclusive bargaining representative of the employees, . . . the Union has a statutory duty fairly to represent all of those employees, both in its collective bargaining . . . and in its enforcement of the resulting collective bargaining agreement.'" United Steelworkers of Am. v. Rawson, 495 U.S. 362, 372, 109 L. Ed. 2d 362, 110 S. Ct. 1904 (1990)(quoting Vaca v. Sipes, 386 U.S. 171, 177, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967)). To establish the Union's breach of its duty of fair representation, Plaintiff must demonstrate that, in processing her grievance, the Union's conduct was "'arbitrary, discriminatory, or in bad faith,'" Samuels v. Air Transp. Local 504, 992 F.2d 12, 16 (2d Cir. 1993)(quoting Vaca, 386 U.S. at 190), or, alternatively, "'seriously undermined the arbitral process.'" Samuels, 992 F.2d at 16 (quoting Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567, 47 L. Ed. 2d 231, 96 S. Ct. 1048 (1976)).
Courts have afforded unions a considerable amount of discretion in grievance matters. See, e.g., Ayala v. Union de Tronquistas de Puerto Rico, Local 901, 74 F.3d 344, 346 (1st Cir. 1996) ("'In the context of employee grievances, the duty of fair representation is not a straitjacket which forces unions to pursue grievance remedies under the collective bargaining agreement in every case where an employee has a complaint against the company. . . . A union is accorded considerable discretion in dealing with grievance matters, and it may consider the interests of all its members when deciding whether or not to press the claims of an individual employee.'" (quoting Seymour v. Olin Corp., 666 F.2d 202, 208 (Former 5th Cir. 1982))). Peterson v. Kennedy, 771 F.2d 1244, 1254 (9th Cir. 1985)("It is for the union, not the courts, to decide whether and in what manner a particular grievance should be pursued."), cert. denied, 475 U.S. 1122, 90 L. Ed. 2d 187, 106 S. Ct. 1642 (1986); Freeman v. O'Neal Steel, Inc., 609 F.2d 1123, 1126 (5th Cir.), cert. denied, 449 U.S. 833, 66 L. Ed. 2d 39, 101 S. Ct. 104 (1980); Smith v. ITT Std., 834 F. Supp. 612, 617 (W.D.N.Y. 1993). "'As long as the Union acts in good faith, the courts cannot intercede on behalf of employees who may be prejudiced by rationally founded decisions which operate to their particular disadvantage.'" Cook v. Pan Am. World Airways, Inc., 771 F.2d 635, 645 (2d Cir. 1985)(quoting Capobianco v. Brink's, Inc., 543 F. Supp. 971, 975 (E.D.N.Y. 1982), aff'd, 722 F.2d 727 (2d Cir. 1983)), cert. denied, 474 U.S. 1109, 88 L. Ed. 2d 929, 106 S. Ct. 895 (1986).
In processing a grievance, "a union's actions are arbitrary only if, in light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outside a 'wide range of reasonableness,' as to be irrational." Air Line Pilots Ass'n v. O'Neill, 499 U.S. 65, 67, 113 L. Ed. 2d 51, 111 S. Ct. 1127 (1991)(citation omitted)(quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 97 L. Ed. 1048, 73 S. Ct. 681 (1953)); see also N.L.R.B. v. Local 282, Int'l Bhd. Of Teamsters, 740 F.2d 141, 147 (2d Cir. 1984)("Arbitrary conduct is not limited to intentional conduct by union officials but may include acts of omission which, while not calculated to harm union members, 'may be so egregious, so far short of minimum standards of fairness to the employee and so unrelated to legitimate union interests as to be arbitrary.'" (quoting Robesky v. Qantas Empire Airways, Ltd., 573 F.2d 1082, 1089-90 (9th Cir. 1978))). Moreover, "the duty of fair representation is not breached where the union fails to process a meritless grievance, engages in mere negligent conduct, or fails to process a grievance due to error in evaluating the merits of the grievance." Cruz v. Local Union Number 3 of the Int'l Bhd. Of Elec. Workers, 34 F.3d 1148, 1154 (2d Cir. 1994).
Plaintiff presents two primary arguments in her Post-Trial Memorandum in support of her contention that the Union acted arbitrarily in representing her interests following her termination. First, she claims that the Union "constructively deemed plaintiff's protest [of her termination] to have been waived," by virtue of its failure to abide by the grievance notification provisions set forth in Article VI of the CBA. Pl.'s Post-Trial Mem. at 8. Second, Plaintiff mounts a general attack on the Union's investigation of the events surrounding her termination, and its alleged failure to present any type of defense on her behalf. The Court will explore each of these arguments in turn.
1. The Grievance and Arbitration Provisions of the CBA
Plaintiff claims that the Union's conduct was arbitrary because it (1) waived her right to protest her termination by failing to serve written notice upon Del within five days of its receipt of Del's notice of her termination; (2) failed to raise in her defense the fact that Del did not serve written notice upon the Union that she had been terminated within two days of taking such action; and (3) failed to advise her of her right to file individually a grievance with Del.
In Caputo v. Nat'l Ass'n of Letter Carriers, 730 F. Supp. 1221 (E.D.N.Y. 1990), Judge Glasser squarely addressed the issue of whether a union's failure to file timely a grievance on behalf of an employee could constitute a breach of its duty of fair representation. 730 F. Supp. at 1224. Pointing out that, under well-settled Second Circuit law, "neither tactical errors nor ordinary negligence constitute a breach of the duty of fair representation," id. at 1225, the narrow issue for the court was whether the union's untimely filing was "a mere mistake or error of judgment." Id. at 1226. Drawing upon precedent from the Sixth and Ninth Circuits, the Caputo court held that "the failure to perform a ministerial task where the individual interest is strong
and where the result virtually extinguishes the claim is the sort of omission that is properly subject to judicial recourse because it does not interfere with the union's discretion." Id. at 1229.
Caputo is distinguishable from the instant case. There, the employer repeatedly refused to entertain a grievance on the grounds that it was filed untimely. Id. at 1223-24. Moreover, citing the cases of Ruzicka v. Gen. Motors Corp., 649 F.2d 1207 (6th Cir. 1981), on remand, 519 F. Supp. 893 (E.D. Mich. 1981), aff'd, 707 F.2d 259 (6th Cir.), cert. denied, 464 U.S. 982, 78 L. Ed. 2d 359, 104 S. Ct. 424 (1983), and McLain v. Wilson, 591 F. Supp. 474 (D. Md. 1984), the Caputo court recognized that the untimely filing of a grievance would not always provide an employee with a fair representation claim. In Ruzicka, the union argued that it had failed to file timely an employee's grievance statement in reliance on "a prevailing practice of [both the union and the company of] freely granting extensions of time for the exchange" of such statements. 649 F.2d at 1210. Nevertheless, the district court held that the untimely filing constituted unfair representation as a matter of law. Id. at 1209. The Sixth Circuit remanded the case to the district court to address the issue of the union's reliance on past practice in processing the employee's grievance, noting that if in fact the union's untimely filing was based upon such reliance, the union would thereby be relieved of liability. Id. at 1211. The Sixth Circuit reasoned as follows:
In relying on a past practice, a union's omission is based on a wholly relevant consideration, is not intended to harm its member, and is not the type of arbitrariness which reflects reckless disregard for the rights of the individual employee. Such conduct, at times, manifests no more than ordinary negligence and we cannot hold a union liable for breach of the duty of fair representation based upon simple negligence.