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August 28, 2002


The opinion of the court was delivered by: Koeltl, District Judge.

Opinion and Order

Plaintiff, Angel C. Vera, brought this action against his former employer, the defendant Saks & Company, seeking damages arising from allegedly unpaid wages during his period of employment.

The plaintiff contends that the defendant's practice of charging unidentified returns of merchandise against commissions for shoe salesmen such as the plaintiff violated the common law and Section 193 of the New York Labor Law. Section 193 prohibits unauthorized deductions from wages. The plaintiff also sought injunctive relief.

The plaintiff originally brought this action in state court. The defendant removed this action to this Court on the grounds that the plaintiffs claims were pre-empted by Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a). This Court denied the plaintiffs motion to remand this case to state court. The Court found that the action was preempted by federal labor law because the action necessarily implicates a collective bargaining agreement. Any commissions that the plaintiff was entitled to were earned pursuant to the collective bargaining agreement and they were owed, if at all, under the collective bargaining agreement. (Tr. of July 13, 2001 Hearing at 22 ("Tr.").)

The defendant has now moved for summary judgment, and the plaintiff has cross-moved for summary judgment in response. The defendant contends, among other things, that the plaintiffs failure to submit his claim to arbitration, as provided for under the provisions of the collective bargaining agreement governing his employment, forecloses his ability to obtain relief in this Court. The plaintiff, in response, argues that his claim does not fall within the terms of the collective bargaining agreement's arbitration and grievance provisions, and seeks summary judgment on the issue of defendant's liability.

For the reasons that follow, the defendant's motion for summary judgment is granted, and the plaintiffs motion is denied.


The plaintiff was employed by the defendant as a shoe salesman in the defendant's store located at 611 Fifth Avenue in New York City from 1974-1975 and from 1976-2000. (Compl. ¶¶ 13-16) The plaintiff was a member of United Storeworkers, Local 2567, RWDSU, AFL-CIO, and his employment was subject to the terms and conditions of a collective bargaining agreement (the "CBA"). (Compl. ¶¶ 17-18) The CBA contains a provision outlining the grievance procedure to be used for resolving disputes between employees and the defendant. That provision provides, in relevant part,

The Union shall designate a Standing Committee of its own choice to take up with the Employer any matter arising out of the application of this Agreement with a view to its amicable settlement. Any dispute, claim, grievance or difference arising out of or relating to this Agreement which the Union and the Employer have not been able to settle, shall be submitted to arbitration upon notice by either party to the other party in writing, stating the nature of the matter to be arbitrated. The matter in dispute shall be submitted to arbitration before the American Arbitration Association of New York, under its Voluntary Labor Arbitration Rules. Both parties agree to accept the award of the arbitrator as final and binding. The arbitrator's award of any opinion rendered in connection therewith shall be limited to the issues presented to him for decision. In any arbitration, the arbitrator shall be bound by the terms of this agreement and shall have no authority to add to, subtract from, change or modify any provision of this agreement. Each party shall bear its own costs of arbitration and shall share equally the cost of the arbitrator.

(CBA, ¶ 23., attached at Ex. A to Decl. of Richard Granofsky, sworn to October 1, 2001.) The plaintiff alleged that the defendant's practice of calculating commissions, as provided for within the CBA, violated § 193 of the New York Labor Law, (Compl. ¶ 34), and the common law (Compl. ¶ 45). The parties agree that the plaintiff did not use the CBA's grievance procedure before filing his complaint — he neither first contacted the Union's standing committee nor subsequently submitted his claim to arbitration. The defendant alleges that this failure entitles it to summary judgment requiring dismissal of the action, because as a matter of law, the plaintiff was required to exhaust the CBA's grievance procedures.


The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see generally Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224.

The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The substantive law governing the case will determine those facts that are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether summary judgment is appropriate, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); Gallo, 22 F.3d at 1223. If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). With respect to the issues on which summary judgment is sought, if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See Chambers v. TRM Copy Ctrs., 43 F.3d 29, 37 (2d Cir. 1994).

Normally, when both parties seek summary judgment, the Court must "`evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.'" Abrams v. United States, 797 F.2d 100, 103 (2d Cir. 1986) (quoting Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 314 (2d Cir. 1981)). However, the defendant's motion for summary judgment on the issue of arbitration involves a threshold question on the ...

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