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 -- necessarily uniform throughout the Nation -- must be employed to resolve the dispute.
Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 405-06, 100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988); Allis-Chalmers Corp v. Lueck, 471 U.S. 202, 210, 85 L. Ed. 2d 206, 105 S. Ct. 1904 (1985) ("If the policies that animate § 301 are to be given their proper range . . . the pre-emptive effect of § 301 must extend beyond suits alleging contract violations."); Dougherty, 902 F.2d 201, 203 (2d Cir. 1990) (holding that plaintiff's tort law "formulation is not binding upon [the Court] where rights and obligations under the pertinent collective agreement are inextricably involved in the underlying claim."). This is not to say that every state-law claim brought by a union employee is preempted by § 301: "rights and obligations that are truly independent of a collective bargaining agreement are enforceable." Dougherty, 902 F.2d at 203. However, "when resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a § 301 claim, or dismissed as preempted by federal labor-contract law." Allis-Chalmers, 471 U.S. at 220 (citations omitted).
Therefore, in order to determine whether plaintiff's claims for wrongful discharge and for breach of confidentiality are preempted by § 301, this Court must consider whether resolution of these matters is "substantially dependent" upon the terms of the CBA. Id. Under this standard, plaintiff's claim that he was discharged without "just cause" -- a duty which plaintiff draws explicitly from the language of the CBA -- is "indisputably" preempted by § 301 of the LMRA. Paradis v. United Technologies, 672 F. Supp. 67, 69 (D. Conn. 1987); see also Anderson v. Coca Cola Bottling Co., 772 F. Supp. 77, 81 (D. Conn. 1991) ("The only 'just cause' provision that could apply to plaintiff's employment contract is contained in the collective bargaining agreement."). In fact, there is no dispute on this point; in his Opposition, plaintiff does not challenge defendant's position that the "unjust" discharge claim is preempted by § 301. A more difficult question -- indeed, the contested question -- arises with respect to plaintiff's breach of confidentiality claim.
In his Opposition, plaintiff relies upon Lingle for the proposition that a state tort claim which can be resolved without reference to a collective bargaining agreement is not preempted under § 301. See Lingle, 486 U.S. at 411 (finding no preemption as to union employee's claim of retaliatory discharge). Plaintiff goes on to assert, without any reference to the specific allegations set forth in his Complaint, that his breach of confidentiality claim does not depend upon an interpretation of the CBA. Plaintiff's explanation of the governing legal standard is correct: where an employer allegedly breaches a duty which exists independently of any collective bargaining agreement, an action for the breach of that duty is not preempted under § 301 of the LMRA. Id. Plaintiff's assertion that he has advanced a claim which does not depend upon application of the CBA, however, is plainly wrong.
In both his original, and proposed amended complaints, plaintiff invokes "the CBA and defendant's Personnel Policies & Practices" as the source of the duty of confidentiality which the Company allegedly breached by releasing plaintiff's personnel materials to state and federal investigators. (Original Comp. P 10; Amended Comp. P 20). In his proposed amended complaint, plaintiff refers the Court to Article 35 of the CBA -- captioned "Inspection of Employee Records" -- as a source of the duty of confidentiality which defendant allegedly breached. (Amended Comp. P 8). Further, in the single passage of defendant's personnel policy which plaintiff excerpts in his Opposition, the Company expressly reserves the right to use and disclose personnel materials "in accordance with [its] collective bargaining obligations." (Opposition at 11). In sum, plaintiff repeatedly frames his breach of confidentiality claim with reference to the CBA and thereby undermines and explicitly contradicts his argument that his claim is not "substantially dependent" upon its application. See McKee v. Transco Products, Inc., 874 F.2d 83, 85 (2d Cir. 1989) ("Because plaintiffs claimed that Transco breached a collective bargaining agreement, we agree with the district court that § 301 was properly pled, and that appellants cannot now transform this case into simply a state breach of contract claim."). Indeed, plaintiff has not proffered any argument suggesting a way in which to assess his claim that the Company breached its duties under "the CBA and the defendant's Personnel Policies & Practices" without applying the CBA. Thus, plaintiff's breach of confidentiality claim is preempted under federal law.
Plaintiff charges that defendant's alleged breach of its duty of confidentiality is actionable also as a claim for the "intentional infliction of emotional distress." (Amended Comp. P 22). This cause of action requires a showing, inter alia, of "extreme and outrageous" conduct by defendant. Conniff v. Dodd, Mead & Co., 593 F. Supp. 266, 269 (S.D.N.Y. 1984). Because the allegedly outrageous conduct in this instance was defendant's breach of a duty arising under the CBA, preemption applies whether plaintiff formulates his claim as one for breach of contract or for the intentional infliction of emotional distress. See McCormick v. AT & T Technologies, Inc., 934 F.2d 531, 536-37 (4th Cir. 1991) ("Here, interpretation of the collective bargaining agreement is essential to determine whether and to what extent AT & T owed McCormick a duty concerning his work locker. If management owed him no duty and was entitled under the agreement to dispose of the contents of his locker in the manner it did, its actions ipso facto could not have been wrongful under state law."), cert. denied, 502 U.S. 1048, 116 L. Ed. 2d 813, 112 S. Ct. 912 (1992); Anderson, 772 F. Supp. at 82 ("Plaintiff's tort claims arise out of work related disputes governed by the collective bargaining agreement."); Dulay v. United Technologies Corp., 1994 U.S. Dist. LEXIS 9051, 3:93-cv-2020(JAC), 1994 WL 362149, * 5 (D. Conn. June 10, 1994) (distinguishing claims for intentional and negligent infliction of emotional distress; a claim of intentional infliction of emotional distress requires the court "to determine whether the defendant's conduct exceeded the bounds of the collective bargaining agreement.").
The Court's ruling is consistent with decisions in several Circuits in which courts have preempted a variety of claims arising out of defendant corporations' alleged misconduct during the course of investigations culminating in challenged dismissals. See, e.g., Willis v. Reynolds Metals Company, 840 F.2d 254, 255 (4th Cir. 1988) (preempting plaintiff employee's invasion of privacy claim where "the alleged wrong by [the employer] in the instant case directly dealt with its right pursuant to a collective bargaining agreement to conduct investigations into possible harassment of one employee by a co-worker"); Scott v. Machinists Automotive Trades District Lodge No. 190 of Northern California, 827 F.2d 589, 594 (9th Cir. 1987) ("state tort claims for intentional infliction of emotional distress are preempted when they arise out of the employee's discharge or the conduct of the defendants in the investigatory proceedings leading up to the discharge."). As is the case here, such claims typically are intertwined with the defendant corporations' rights and obligations under the collective bargaining agreements which prescribe the appropriate bases for dismissal. Id. Thus, as precedent and logic dictate, I consider both plaintiff's unjust discharge claim, and plaintiff's breach of confidentiality claim, in accordance with federal law governing disputes arising under collective bargaining agreements.
B. "Hybrid § 301/Fair Representation" Allegations
Under federal law, courts ordinarily must defer to the judgment of arbitrators called upon to resolve disputes between employees and employers arising under collective bargaining agreements. DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 163-64, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983) ("Ordinarily . . . an employee is required to attempt to exhaust any grievance or arbitration remedies provided in the collective-bargaining agreement. Subject to very limited judicial review, he will be bound by the result according to the finality provisions of the agreement.") (citations omitted). Under a narrow set of circumstances, however, an employee can proceed with a § 301 claim despite an earlier adverse ruling by an arbitrator:
when the union representing the employee in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation . . . an employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceedings.
Id. at 163-164 (citations ommitted); see also Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1179 (7th Cir. 1993) ("the worker cannot prevail in his section 301 suit merely by showing that his grievance is a just one. That is, he cannot show just that the company violated the collective bargaining agreement. He must also show that . . . the union violated its duty to represent all members of the bargaining unit fairly."); see also Olguin v. Inspiration Consolidated Copper Co., 740 F.2d 1468, 1472 (9th Cir. 1984) ("Collective bargaining agreements customarily provide for grievance and arbitration procedures, and unless an employee can show that he was not fairly represented by his union, grievance and arbitration is the employee's exclusive remedy for a breach of the agreement."). Because such a claim includes a challenge both to the propriety of the employee's discharge and to the adequacy of the employee's union representation, it is properly characterized as a "hybrid § 301/fair representation" claim. See DelCostello, 462 U.S. at 165.
Plaintiff's Original Complaint does not describe a hybrid claim; it describes a straightforward breach of contract claim. Indeed, the Original Complaint never mentions the arbitration, and it never raises any allegation even hinting at a claim of "unfair representation." Instead, in his Original Complaint, plaintiff focuses exclusively upon the circumstances of his termination from the Company and purports to set forth state law causes of action for "unjust discharge" and "breach of duty." Thus, the claims which plaintiff describes in his Original Complaint are properly barred by the arbitrator's "final and binding" determination that both the plaintiff's discharge and the Company's related investigation were "reasonable."
For the first time, in the March 29, 1996 affidavit he submitted in support of his Opposition, plaintiff set forth several allegations of "unfair representation" -- allegations which convert plaintiff's claim into a hybrid cause of action. See McKee, 874 F.2d at 86-87 (holding that a plaintiff cannot avoid having his claim treated as a "hybrid" simply by declining to characterize it as such in his complaint; the court is free to consider the true nature of the allegations advanced either in the pleadings or in supporting affidavits). Hybrid claims, however, carry a six month statute of limitations. DelCostello, 462 U.S. at 169. Plaintiff lost at arbitration on March 10, 1995; he filed his state court action on August 9, 1995; and he submitted his Opposition on March 27, 1996. Thus, unless plaintiff's new allegations can relate back to the filing of his Original Complaint, his effort to pursue a hybrid claim against the Company comes too late.
Rule 15 of the Federal Rules of Civil Procedure permits a party to amend its pleadings when "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed. R. Civ. P. 15(c)(2). "The main inquiry under Fed.R.Civ.P. 15(c) is whether adequate notice has been given to the opposing party 'by the general fact situation alleged in the original pleading.' An amendment will not relate back when it sets forth a new set of operational facts; it can only make more specific what has already been alleged." Pruiss v. Bosse, 912 F. Supp. 104, 106 (S.D.N.Y. 1996) (citations ommitted); see also Liebowitz v. Elsevier Science Ltd., 927 F. Supp. 688, 706 (S.D.N.Y. 1996) (denying relation back, in part, because "the third amended complaint does not simply set forth more fully the same matter alleged in the original complaint."); Holmes v. Greyhound Lines, Inc., 757 F.2d 1563, 1566 (5th Cir. 1985) ("when new or distinct conduct, transactions, or occurrences are alleged as grounds for recovery, there is no relation back, and recovery under the amended complaint is barred by limitations if it was untimely filed.").
Plaintiff's "hybrid § 301/fair representation" claim centers upon a set of facts -- those concerning his representation during arbitration -- that plaintiff did not raise in connection with the "straightforward breach-of-contract" claim he initially set forth:
'To prevail against either the Company or the union, employee-plaintiff must not only show that their discharge was contrary to contract but must also carry the burden of demonstrating breach of a duty by the Union.' The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both. The suit is thus not a straightforward breach-of-contract under § 301 . . . but a hybrid § 301/fair representation claim . . .