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November 12, 1996

RICHARD F. HEANING, Plaintiff, against NYNEX -- NEW YORK, also known as New York Telephone Company, Defendant.

The opinion of the court was delivered by: SOTOMAYOR

 The original complaint in this action, filed in state court, advanced two claims against NYNEX Corporation ("NYNEX" or "the Company"), both of which related to plaintiff's discharge from the Company. First, plaintiff claimed that his employment was terminated without "just cause," and that NYNEX therefore violated the terms of a collective bargaining agreement (the "CBA") entered into between the Company and plaintiff's union. Second, plaintiff asserted that NYNEX breached a duty of confidentiality owed to him by releasing certain of his personnel materials to state and federal authorities during the course of the Company's investigation into charges which culminated in plaintiff's discharge. Defendant removed the action to federal court on the ground that plaintiff's claims depended upon the interpretation of the CBA, and therefore were governed by § 301 of the Labor Management Relations Act (the "LMRA"). Defendant now moves for summary judgment on the ground that federal law bars the Court from considering plaintiff's claims because those claims already have been advanced and rejected in an arbitration initiated by plaintiff pursuant to the terms of the CBA.

 In opposition to defendant's motion for summary judgment, plaintiff has submitted an affidavit to the Court alleging -- for the first time -- that he was inadequately represented by union officials during the course of the arbitration proceedings, thereby invalidating defendant's claim of estoppel. Plaintiff also requests leave to amend his complaint to add a cause of action, under 42 U.S.C. § 1983, charging defendant with conspiring with state and federal authorities in disclosing his personnel files in violation of plaintiff's privacy rights. Defendant maintains that plaintiff's most recent allegations are insufficient to avoid the binding effect of the arbitrator's decision, and that plaintiff's § 1983 claim is time barred. For the reasons to be discussed, I grant defendant's motion for summary judgment.


 NYNEX discharged plaintiff from his position as a service technician on August 31, 1992. The Company acted based upon an investigation which concluded that plaintiff had placed an offensive advertisement in Swinging Times magazine concerning his former supervisor.

 During the course of NYNEX's investigation into plaintiff's alleged misconduct, Company officials reviewed and analyzed various materials removed from plaintiff's personnel files. For example, in March, 1989, the Company hired an expert to conduct a handwriting analysis comparing the application for the offensive advertisement with plaintiff's employment records. Further, plaintiff alleges that the Company released these same materials, on various occasions in 1988 and 1989, to investigators from the United States Postal Service, and to local police officials. According to the Complaint, NYNEX's handling of plaintiff's personnel files contravened the Company's confidentiality policies, and led ultimately to plaintiff's prosecution and conviction, on August 13 1992, for the crime of aggravated harassment in the second degree. That conviction subsequently was overturned. According to plaintiff, the decision on appeal reflected that there had been insufficient evidence to convict; according to defendant, the judgment was reversed "on the law" and not on the merits. (Heaning Aff. P 14; Blane Aff. Ex. B at 3).

 Plaintiff was a bargaining unit employee covered by the terms of the CBA between NYNEX and the Communications Workers of America, AFL-CIO, District One, Local 1104 (the "Union"). Following his discharge, and pursuant to the grievance and arbitration provisions set forth in the CBA, plaintiff pursued an arbitration to challenge the Company's conduct. In the arbitration, plaintiff argued that the Company discharged him without "just cause," in violation of the CBA. The arbitration took place in October, 1994, with plaintiff represented by Union counsel. In a written award dated March 10, 1995, the arbitrator determined that "the Company's action in the discharge of Richard Heaning was with just cause," and ruled in defendant's favor. (Blane Aff. Ex. B at 9). Article 12 of the CBA provides that an arbitration award "shall be final and binding." (Blane Aff. Ex. A at 32).

 Without any reference to the arbitration proceedings or the arbitrator's award, plaintiff filed his Original Complaint dated August 9, 1995 in the Supreme Court of the State of New York, County of New York (the "Original Complaint"). Plaintiff's Original Complaint advanced two causes of action. First, plaintiff charged defendant with terminating him from his position with the Company without "just cause," thereby violating the terms of the CBA. (Original Comp. P 7). Second, plaintiff claimed that the Company breached its duty "under the CBA and defendant's Personnel Policies & Practices" to preserve the confidentiality of plaintiff's employee files. (Original Comp. P 10).

 Defendant removed the action to this Court on September 21, 1995, on the ground that the resolution of plaintiff's claims depends upon the interpretation of the CBA, and that such matters are governed by § 301 of the LMRA. On February 29, 1996, defendants moved for summary judgment on the ground that the LMRA preempts plaintiff's state law claims, and requires that this Court defer to the arbitrator's determination that NYNEX acted with "just cause," and that the Company's investigation was "reasonable."

 In support of his Opposition to Defendant's Motion For Summary Judgment (the "Opposition"), plaintiff submitted an affidavit, dated March 29, 1996, sharply criticizing the competence and diligence of the Union attorneys who represented him during the arbitration -- a matter plaintiff did not reference in his Original Complaint. According to these new allegations, plaintiff's Union attorneys behaved "unprofessionally" during the arbitration; at times refusing to respond to plaintiff's questions, and even referring to him as an "asshole" while speaking with others at the arbitration proceedings. (Heaning Aff. P 18). Plaintiff also alleges that his Union attorneys failed to present persuasive evidence on his behalf, failed to advance a number of credible arguments, and did not adequately cross-examine witnesses. For instance, plaintiff's supervisor pursued a civil claim against plaintiff which ultimately was dismissed; plaintiff's Union attorneys rejected plaintiff's advice that they cross-examine the supervisor as to the possibility that her allegations were motivated by the prospect of a civil recovery. (Heaning Aff. P 20). Further, the Union attorneys allegedly excluded plaintiff from a settlement conference and refused to discuss with plaintiff what transpired during their meeting with the Company's attorneys. (Heaning Aff. P 23). In his affidavit, plaintiff also reveals that he filed a charge with the National Labor Relations Board (the "Board") against the Union for its alleged breach of its duty of fair representation, but that the Board declined to pursue the matter. (Heaning Aff. P 22). In sum, plaintiff purports to have been "very unhappy" with his Union representation during the arbitration. (Opposition at 5).

 Plaintiff also has moved the Court for leave to file an amended Complaint. Plaintiff's proposed amended Complaint is largely identical to his Original Complaint, except that it adds a § 1983 cause of action against defendant. Plaintiff charges that, "between September 1988 and March 1989," defendant conspired with various government officials for purposes of "depriving plaintiff of his rights under the Fourth, Fifth and Fourteenth Amendments of the United States Constitution." (Amended Comp. P 6). Specifically, by circulating plaintiff's personnel materials to state and federal authorities, defendant allegedly violated plaintiff's "reasonable expectation of privacy" in those materials. (Amended Comp. P 7(a)).

 Defendant responds to plaintiff's new allegations and to plaintiff's new claim with two basic arguments. First, with respect to plaintiff's allegations concerning the adequacy of the Union attorneys during arbitration, defendant argues that these new allegations recast plaintiff's claim into a "hybrid § 301/fair representation" cause of action. This is an action distinct from the "unjust discharge" claim plaintiff initially brought in state court. Therefore, plaintiff's new allegations should not be related back to the filing of the Original Complaint, and because the statute of limitations applicable to hybrid claims is six months, defendant's argument continues, plaintiff is time barred from asserting his new "unfair representation" allegations. Second, as to plaintiff's § 1983 claim, defendant contends that this claim accrued in 1988 or 1989, the time in which defendant allegedly circulated plaintiff's personnel materials to state and federal investigators. Thus, even if this claim relates back to the time of the filing of the Original Complaint on August 9, 1995, the three year statute of limitations applicable to § 1983 claims has expired and precludes plaintiff from making his proposed amendment. I agree with defendant's contentions.

 A. § 301 Preemption

 "Section 301 of the LMRA governs actions by an employee against an employer for breach of a collective bargaining agreement." Dougherty v. American Telephone and Telegraph, Co., 902 F.2d 201, 203 (2d Cir. 1990). A plaintiff cannot escape § 301 preemption simply by formulating a claim as one arising under state tort law:

if the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law (which might lead to inconsistent results since there could be as many state-law principles as there are States) is pre-empted and federal labor-law principles -- ...

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