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December 19, 1997


The opinion of the court was delivered by: KAHN


 I. Background

 Plaintiff was employed as a letter carrier by the branch of the United States Postal Service ("USPS") located in Glens Falls, New York, from October, 1996 until when her termination around February, 1996. Defendant Branch 81 of the National Association of Letter Carriers ("Branch 81") acted as a labor union representing plaintiff's employment interests until October 15, 1996, at which time it was merged with another union. Subsequently, plaintiff was represented by Branch 358 of the National Association of Letter Carriers ("Branch 358") (collectively, "the Union"). Defendant Michael Hoag was the president of Branch 81 at all times relevant.

 On July 12, 1994, USPS sent plaintiff a letters informing her that she was not completing her route within the time established by USPS as appropriate. Another such letter was sent on July 13, 1994. By letter dated August 1, 1994, plaintiff was placed on a one week suspension without pay. Plaintiff brought grievances against each of the three letter actions.

 Further, plaintiff requested a special inspection to evaluate her route and determine if the established time was insufficient. The request was denied, and plaintiff brought a grievance against this decision. Around September, 1994, USPS placed plaintiff on a 14-day suspension without pay for her failure to complete her route more quickly. Plaintiff also brought a grievance against this suspension.

 On December 14, 1994, while she was still waiting for her grievances to be decided, plaintiff's employment was terminated. Plaintiff filed a grievance, but was denied in the first step of the process. The second step was handled by Hoag and USPS Postmaster Ron Marcellus. On January 6, 1995, this step also proved unsuccessful. The third step was an appeal for arbitration, which had to be brought by the Union within fifteen days of the denial of the grievance.

 On or around February 15, 1995, Hoag told the plaintiff and William Cook, Union President of Branch 358 that he had filed such an appeal, when in fact he had not. On April 12, 1995, an Arbitrator ruled on the first three grievances, relating to the two letters of warning and the one week suspension, and found in plaintiff's favor on all counts.

 On May 8, 1995, Hoag informed plaintiff that no appeal with regard to her termination grievance had been filed, and that any further appeal was now impossible. However, the Union and USPS had agreed to arbitrate on two issues. First, they agreed to arbitrate the issue of whether the termination grievance, despite being untimely, was arbitrable. In other words, they agreed to arbitrate on whether the claim could be heard on the merits. Second, they agreed to arbitrate the grievance over the second suspension.

 On February 20, 1996, the arbitrator ruled that the termination grievance had not been filed in a timely fashion and was therefore not arbitrable, but that the disciplinary actions lodged against plaintiff after she had requested a special inspection were arbitrable. On March 15, 1996, USPS and the Union settled the grievance over plaintiff's two-week suspension. In this agreement, USPS agreed to give plaintiff two weeks' back pay. However, the Union did not pursue any further action on the grievance regarding plaintiff's termination.

 On June 23, 1995, plaintiff filed a charge with the National Labor Relations Board (NLRB) against Branch 81, alleging breach of duty of fair representation by failing to process her grievance through appeal. This charge was dismissed on August 28, 1995. Nearly a year later, on May 24, 1996, plaintiff filed a second NLRB charge, alleging that both the Union and USPS had engaged in unfair labor practices. On July 22, 1996, respectively, the charges were dismissed on the merits. An appeal was rejected by letter on August 15, 1996. On November 14, 1996, plaintiff commenced the instant action, alleging - claims of breach of duty of fair representation, fraudulent misrepresentation, wrongful discharge and conspiracy.

 Presently before the Court is a motion by the Union to dismiss all claims pursuant to Rule 12(b)(6) for failure to state a claim, or in the alternative for summary judgment. The Union, supported by USPS, argues that plaintiff's state law claims are preempted by federal labor law, and that plaintiff's federal cause of action against the Union for breach of the duty of fair representation is barred by the Statute of Limitations.

 II. Discussion

 As noted, the Union has moved either to dismiss or in the alternative for summary judgment. The Court has considered the declarations and exhibits submitted by the parties, and the statement of facts submitted by both the Union and the plaintiff pursuant to Local Rule Rule 7.1(f), and finds that the factual record is amenable to review for summary judgment.

 Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983). A genuine issue is an issue that, if resolved in favor of the non-moving party, would permit a jury to return a verdict for that party. R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997) (citing Anderson, 477 U.S. at 248).

 Summary judgment is proper where there is "little or no evidence . . . in support of the non-moving party's case." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-1224 (2d Cir. 1994)(citations omitted).

 A. Timeliness of Plaintiff's Federal Claim

 The Supreme Court has held that in an action where employees sue both their employer for breach of the collective bargaining agreement ("CBA") pursuant to § 301(a) of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a) (1982) and their union for breach of the duty of fair representation (so-called "hybrid" actions), the action must be brought within six months of accrual. *fn1" See DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 169-171, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983) (adopted limitations period provided by Section 10(b) of the National Labor Relations Act("NLRA"), 29 U.S.C. § 160(b)). The Supreme Court reasoned that the NLRA was "designed to accommodate a balance of interests very similar to that at stake" in a "hybrid" claim. Id. at 169.

 Plaintiff has not brought such a hybrid claim, since she has not alleged an action for breach of the collective bargaining agreement under § 301 of the LMRA. *fn2" However, the Second Circuit has made it clear that a claim for breach of the duty of fair representation, standing alone, is also subject to the six month statute of limitations period. See Gvozdenovic v. United Air Lines, 933 F.2d 1100, 1106 (2d Cir.), cert. denied, 502 U.S. 910, 116 L. Ed. 2d 248, 112 S. Ct. 305 (1991); Eatz v. DME Unit of Local Union Number 3 of the International Brotherhood of Electrical Workers, 794 F.2d 29, 33 (2d Cir. 1986). The six month period therefore applies in this case.

 This period "begins to run when a plaintiff knows or reasonably should know that the union has breached its duty of fair representation." Flanigan v. IBT, Truck Drivers Local 671, 942 F.2d 824, 827 (2d Cir. 1991). "Put another way, '[a] cause of action ordinarily accrues when the plaintiff could first have successfully maintained a suit in that action.'" Id. (quoting Santos v. District Council of New York City and Vicinity of United Bhd. of ...

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