United States District Court, Eastern District of New York
May 1, 2000
ANDREW J. RODOLICO, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, HOWARD K. BENJAMIN, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, ROBERT G. BOZZONE, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, MARVIN STALL, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, MELVYN RUBENSTEIN, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, ROBERT E. WECHSLER, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
UNISYS CORPORATION, DEFENDANT. UNISYS CORPORATION, THIRD-PARTY PLAINTIFF, V. ENGINEERS UNION, LOCAL 444, THIRD-PARTY DEFENDANT.
The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
In its August 25, 1999 decision, this Court held that an
employer being sued for age discrimination, based partly upon the
terms of a Collective Bargaining Agreement and a Performance
Planning and Evaluation Program ("PP & E"), may seek contribution
under the New York Human Rights Law ("NYHRL") and CPLR 1401 from
the union that was a party to those labor agreements. See
Rodolico v. Unisys Corp., 189 F.R.D. 245 (E.D.N.Y. 1999). As a
result of this decision, pursuant to Rule 14 of the Federal Rules
of Civil Procedure ("Fed. R. Civ.P."), the Court granted Unisys'
motion for leave to file a third-party complaint against
Engineers Union Local 444 ("Local 444" or the "Union") to the
extent it seeks contribution under the NYHRL. While the Court
noted that timely motions for leave to implead non-parties should
be freely granted, and that the third-party complaint was not
obviously without merit, the prior decision did leave open the
obvious right of the Union to file a motion to dismiss after
being served with the third-party complaint.
Presently before the Court is the Union's motion to dismiss the
third-party complaint pursuant to Fed.R.Civ.P. 12(b)(6) on the
basis that Unisys' state law claim for contribution is preempted
by the federal labor law duty of fair representation ("DFR").
This issue was not raised nor examined in the Court's prior
opinion granting leave to Unisys to file a third-party complaint.
Alternatively, the Union claims that because Unisys' claim
against it is arbitrable under the terms of the collective
bargaining agreement ("CBA"), the third-party complaint must be
stayed pending arbitration.
The underling facts of the complaint were detailed in the
Court's August 25, 1999 decision and will not be repeated here.
In short, the plaintiffs allege that Unisys violated the Age
Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (the
"ADEA"), and the New York State Human Rights Law, N.Y. Exec. Law
§ 290, et seq. (the "NYHRL") in connection
with a reduction in force ("RIF"). The putative plaintiffs, all
members of Local 444, allege that Unisys' policies and practices
in connection with the RIF, discriminated against older employees
in violation of the ADEA and the NYHRL. The plaintiffs'
allegations can be summarized as follows:
The layoff discriminated against older employees by
disproportionately selecting them for discharge, by
discriminatorily implementing a provision in a
collective bargaining agreement giving Unisys
discretion in selecting employees for lay off, and by
using evaluation practices which, as described below,
disfavored older workers.
Plaintiffs' Complaint at ¶ 2.
On October 22, 1999, Unisys filed its third-party complaint
against the Union. The third-party complaint summarizes the facts
set-forth in the plaintiffs' complaint and adds the following:
Plaintiffs make two assertions against Unisys that
impact on Unisys' claims against the Union. First, at
least one class representative claims that Article 11
discriminated against employees age 40 and older.
Second, plaintiffs assert that the RIF reflected a
departure from age neutrality. Plaintiffs' claims,
therefore, depend on evidence that the PP & E was
biased against older workers.
Unisys' Third-Party Complain at ¶ 13. Essentially, in support of
its third-party complaint, Unisys argues that the Union's
participation in the process leading to the alleged unlawful
discrimination, namely, the Union's actions that led to the
performance appraisal system and the Union's agreement to a
three-tiered, weighted seniority system, makes it appropriate to
hold the Union accountable for contribution for its proportionate
share of any damages that may ultimately be awarded to the
A. Fed.R.Civ.P. 12(b)(6)
On a motion to dismiss for failure to state a claim, the Court
should dismiss the complaint pursuant to Rule 12(b)(6) if it
appears "beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief."
Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 44 (2d Cir.
1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.
99, 101-02, 2 L.Ed.2d 80 ); see also IUE AFL-CIO Pension
Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993), cert.
denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994). The
Second Circuit stated that in deciding a Rule 12(b)(6) motion, "a
district court must limit itself to facts stated in the complaint
or in documents attached to the complaint as exhibits or
incorporated in the complaint by reference." Newman & Schwartz
v. Asplundh Tree Expert Co., Inc., 102 F.3d 660, 662 (2d Cir.
1996) (quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 773
[2d Cir. 1991]); see also International Audiotext Network, Inc.
v. AT & T Co., 62 F.3d 69, 72 (2d Cir. 1995); Paulemon v.
Tobin, 30 F.3d 307, 308-09 (2d Cir. 1994).
It is not the Court's function to weigh the evidence that might
be presented at a trial; the Court must merely determine whether
the complaint itself is legally sufficient, see Goldman v.
Belden, 754 F.2d 1059, 1067 (2d Cir. 1985), and in doing so, it
is well settled that the Court must accept the factual
allegations of the complaint as true, see Strom v. Goldman,
Sachs & Co., 202 F.3d 138, 140 (2d Cir. 1999); LaBounty v.
Adler, 933 F.2d 121, 123 (2d Cir. 1991); Proctor & Gamble Co.
v. Big Apple Indus. Bldgs., Inc., 879 F.2d 10, 14 (2d Cir.
1989), cert. denied, 493 U.S. 1022, 110 S.Ct. 723, 107 L.Ed.2d
743 (1990), and construe all reasonable inferences in favor of
the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94
S.Ct. 1683, 40 L.Ed.2d 90 (1974); Leeds v. Meltz, 85 F.3d 51,
53 (2d Cir. 1996); LaBounty, 933 F.2d at 123; Bankers Trust
Co. v. Rhoades, 859 F.2d 1096, 1098 (2d Cir. 1988), cert.
denied, 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989).
The Court is mindful that under the modern rules of pleading, a
plaintiff need only provide "a short and plain statement of the
claim showing that the pleader is entitled to relief,"
Fed.R.Civ.P. 8(a)(2), and that "[a]ll pleadings shall be so
construed as to do substantial justice," Fed.R.Civ.P. 8(f).
The issue before the Court on a Rule 12(b)(6) motion "is not
whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims."
Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d
Cir. 1995), cert. denied, 519 U.S. 808, 117 S.Ct. 50, 136
L.Ed.2d 14 (1996) (quoting Scheuer, 416 U.S. at 236, 94 S.Ct.
1683). Recovery may appear remote and unlikely on the face of the
pleading, but that is not the test for dismissal under Rule
12(b)(6). Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673
(2d Cir. 1995) (quoting Weisman v. LeLandais, 532 F.2d 308, 311
[2d Cir. 1976] [per curiam]).
B. The Duty of Fair Representation and Preemption
As previously stated, the Union claims that Unisys' claim for
contribution under CPLR 1401 is preempted by the federal duty of
fair representation. The duty of fair representation is a
judicially created rule established due to the status of labor
unions as the exclusive bargaining representative for all
employees in a given bargaining unit. See Peterson v. Kennedy,
771 F.2d 1244, 1253 (9th Cir. 1985). In DelCostello v.
International Broth. of Teamsters, 462 U.S. 151, 164, n. 14, 103
S.Ct. 2281, 76 L.Ed.2d 476, the Supreme Court explained the basis
and scope of this duty:
The duty of fair representation exists because it is
the policy of the National Labor Relations Act to
allow a single labor organization to represent
collectively the interests of all employees within a
unit, thereby depriving individuals in the unit of
the ability to bargain individually or to select a
minority union as their representative. In such a
system, if individual employees are not to be
deprived of all effective means of protecting their
own interests, it must be the duty of the
representative organization to "serve the interests
of all members without hostility or discrimination
toward any, to exercise its discretion with complete
good faith and honesty, and to avoid arbitrary
Id. (quoting Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903
). In Vaca, the Supreme Court held that a complaint that
states a duty of fair representation claim "allege[s] a breach by
the Union of a duty grounded in federal statutes and . . .
federal law therefore governs [the] cause of action." Id. at
177, 87 S.Ct. 903.
In two separate opinions, Judge Lawrence Kahn, United States
District Court, Northern District of New York, accurately
summarized the duty of fair representation preemption as follows:
As the employees' agent, a union owes each employee
the "duty of fair representation," i.e. the duty to
act "without hostility or discrimination . . . [in]
complete good faith and honesty . . . to avoid
arbitrary conduct." Vaca v. Sipes, 386 U.S. 171,
177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). State law
claims are preempted if they attempt to impose
obligations on a union that are subsumed by this
duty. See Condon v. Local 2944, United Steelworkers
of America, AFL-CIO, 683 F.2d 590, 595 (1st Cir.
1982) (state-imposed duties on the union are
preempted unless they "arise wholly outside the ambit
of those obligations circumscribed by a union's duty
of fair representation under the collective
bargaining agreement"); Peterson v. Air Line Pilots
Ass'n Int'l, 759 F.2d 1161, 1169 (4th Cir.), cert.
denied, 474 U.S. 946, 106 S.Ct. 312, 88 L.Ed.2d 289
(1985) (the preemption inquiry in "DFR" cases is
"whether the duty of fair representation claim itself
`preempts' the power of the district court to
exercise its pendent jurisdiction over related
state law claims."); Oliva v. Wine, Liquor and
Distillery Workers Union, Local One, 651 F. Supp. 369,
371 (S.D.N.Y. 1987) (fraud claim was "nothing
more than recharacterization" of claim for breach
of duty of fair representation (citations and
internal quotations omitted)). Thus, if the state
claim "creat[es] no new rights for an employee and
impos[es] no new duty on a union not already clearly
present under existing federal labor law," it is
preempted. Welch v. General Motors Corp., Buick
Motor Div., 922 F.2d 287, 294 (6th Cir. 1990)
(quoting Maynard v. Revere Copper Products, Inc.,
773 F.2d 733, 735 (6th Cir. 1985)).
Snay v. U.S. Postal Service, 31 F. Supp.2d 92, 99-100 (N.D.N Y
1998) (dismissing the plaintiff's NYHRL claim against the union
as preempted by the duty of fair representation); Sheehan v.
U.S. Postal Service, 6 F. Supp.2d 141, 150-51 (N.D.N.Y. 1997)
(dismissing the plaintiff's state law claim of intentional
misrepresentation as preempted by the duty of fair
representation); see also BIW Deceived v. Local S6, Indus. Union
of Marine and Shipbuilding Workers, 132 F.3d 824, 830 (1st Cir.
1997) (holding that "state law is preempted whenever a
plaintiff's claim invokes rights derived from a unions duty of
fair representation."); Bergeron v. Henderson, 52 F. Supp.2d 149,
154-55 (D.Maine 1999) (dismissing the plaintiff's state law
claims of sexual discrimination and harassment as preempted by
the duty of fair representation); Hess v. B & B Plastics Div. of
Metal Cladding, Inc., 862 F. Supp. 31, 34 (W.D.N.Y. 1994)
(holding that the plaintiff's NYHRL gender discrimination claim
against her union was preempted because "Congress . . . intended
preemptive coverage of any type of discrimination by a union
against its members, at least in the context of the union' duty
of fair representation."); Wilhelm v. Sunrise Northeast, Inc.,
923 F. Supp. 330, 337 (D.Conn. 1995) (dismissing member's state
law claim against union for discrimination on the basis of sexual
orientation and holding that where state law "creates non new
rights for the union member and imposes no new duty on the union
not already present under federal labor law," such law is
preempted by the DFR).
In its August 25, 1999 decision granting Unisys' motion for
leave to file a third-party complaint against the Union, the
Court noted that Unisys' contribution claim under the NYHRL was
based on a breach of the Union's duty of fair representation.
Specifically, the Court stated that "[t]he Union should be
accountable for any role it may have had with regard to
intentionally aiding in discrimination in the workplace — a
result that promotes the duty of a union to fairly represent its
members. Unions have a duty to act in good faith toward their
members and to fight against discrimination that may occur as a
result of employment decisions." Rodolico, 189 F.R.D. at 253.
Unisys' contribution claim alleges that the Union participated
in the process leading to the alleged unlawful age discrimination
against the plaintiffs. Unisys contends that the Union's
involvement in the performance appraisal system and the Union's
agreement to a three-tiered, weighted seniority system, makes it
appropriate to hold them accountable for contribution. Thus, the
third-party complaint against the Union is primarily concerned
with the Union's activities as the representative of the
plaintiffs. In fact, the only acts alleged to have been taken by
the union are those that would have been taken in the union's
statutory capacity as the exclusive bargaining representative of
the putative plaintiffs and thus fall within the scope of the
union's duty of fair representation.
The substance of the complaint against the Union is that the
Union breached its duty of fair representation by discriminating
against its members. As the duty of fair representation
unquestionably forbids a union from discriminating against its
members in its representative capacity, Vaca, 386 U.S. at 190,
87 S.Ct. 903, the
contribution claim under the NYHRL cannot be said to create a new
right, and is thus subsumed by the duty of fair representation.
Accordingly, Unisys' claim for contribution under the NYHRL is
preempted by federal law and must be dismissed.
Therefore, for the reasons set forth in this opinion, it is
ORDERED, that Unisys' third-party complaint against Local 444
is DISMISSED as preempted by the duty of fair representation;
and it is further
ORDERED, that the Union's motion for a stay pending
arbitration is DENIED as it is deemed MOOT; and it is further
ORDERED, that the Clerk of the Court shall amend the caption
to read as follows:
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
ANDREW J. RODOLICO, on behalf of himself and all others similarly
situtated, HOWARD K. BENJAMIN, on behalf of himself and all
others similarly situtated, ROBERT G. BOZZONE, on behalf of
himself and all others similarly situtated, MARVIN STALL, on
behalf of himself and all others similarly situtated, MELVYN
Rubenstein, on behalf of himself and all others similarly
situtated, ROBERT E. WECHSLER, on behalf of himself and all
others similarly situtated,
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