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CUNNINGHAM v. LOCAL 30

December 10, 2002

SCOTT CUNNINGHAM, RICHARD EGAN, JAMES MCNALLY, CHARLES ABRUZZO, KENNETH BRENGEL, ANTHONY COLAZZO, ANTHONY CALVANICO, VINCENT CAMPISI, JOSEPH CARTOLANO, EDWARD CHAPMAN, WILLIAM CULLEN JR., ANGELO DEVITO, KERRY DICKENS, RONALD DIRKS, KENNETH EGAN, JOHN GILMOUR, JOSEPHUS GREENIDGE, JOHN HAWKINS, RICHARD JOYCE, WILLIAM KAY, JOHN MAURIELLO, ROBERT MCLAUGHLIN, ROBERT MOLLOY, ROY MONTGOMERY, DENNIS MOYNIHAN, ROLAND NG, RICHARD OERTLE, WALTER RAU, LOUIS RICONDA, WILLIAM ROCHE, GERALD SORGENTE, VICTOR STRAUB, HENRY SURIG, AND CHRISTOPHER WERNER, PLAINTIFFS
V.
LOCAL 30, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO; JAMES HANLEY, AS COMMISSIONER OF LABOR FOR THE CITY OF NEW YORK; AND ALAN HEVESI, AS COMPTROLLER OF THE CITY OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Michael B. Mukasey, United States District Judge

  OPINION AND ORDER

Plaintiffs are members of defendant Local 30, International Union of Operating Engineers ("Local 30"), and are employed by the City of New York ("the City"). Plaintiffs sue Local 30 alleging that the manner in which Local 30 conducted the ratification vote on their contract violated Section 101(a)(1) and (a)(2) of the Labor Management Reporting and Disclosure Act ("LMRDA"), violated the Constitution of the International Union of Operating Engineers ("IUOE Constitution"), and breached Local 30's duty of fair representation to its members. In addition to suing their union, plaintiffs sue the City's Commissioner of Labor and its Comptroller (the "City defendants"), seeking to void the terms of the contract between Local 30 and the City.

Local 30 moves for summary judgment pursuant to Fed.R.Civ.P. 56(b). City defendants renew their motion to dismiss for failure to state a claim and alternatively seek summary judgment. For the reasons stated below, Local 30's motion for summary judgment is granted with respect to the LMRDA claim. This court lacks subject matter jurisdiction over the IUOE Constitution claim, and declines to exercise supplemental jurisdiction over the state-law duty of fair representation claim. The City defendants' motion is granted.

I.

The following facts are undisputed except as described otherwise. Local 30 is a labor organization, chartered by the IUOE, with approximately 3000 members employed mostly to operate and maintain mechanical systems in buildings and plants. (Local 30's 56.1 ¶ 1; Pl.'s 56.1 ¶ Al) Local 30 represents employees in both the public and private sectors. (Am. Compl. ¶ 4; Ans. ¶ 4; Local 30's 56.1 ¶ 20) Approximately 600 of Local 30's members are employed by the City of New York in five different titles ("City members"). About 170 are employed in the job titles of Oiler and Plant Maintainer. These titles promote to the titles of Stationary Engineer and Stationary Engineer outside New York City, which include roughly 370 Local 30 members. About 65 Local 30 members have been promoted from these titles to the Senior Stationary Engineer title. (Local 30's 56.1 ¶ 2; Pl.'s 56.1 ¶ A2).

Plaintiffs are 34 members of Local 30 employed by the City of New York in the title of Senior Stationary Engineer ("Seniors"). (Am. Compl. ¶ 3).

On May 26, 1999, the City presented Local 30 with an offer covering the wages and benefits for all five titles, for the period July 1, 1995 to June 30, 1999. (Am. Compl. ¶ 11; Local 30's 56.1 ¶ 21) Local 30 conducted a membership ratification vote on the offer by counting the votes of all union members together, rather than separately by title. (Am. Compl. ¶ 12; Local 30's 56.1 ¶ 30; Pl.'s 56.1 ¶ A30) Prior to the 1995-1999 agreement, there were individual agreements for each title, which were ratified separately by the title covered in the individual agreement. (Am. Compl. ¶ 13; Pugh Dep. at 18-23)

Under the consent determinations covering the period October 1, 1991 to June 30, 1995, Stationary Engineers and Seniors had fewer holidays, vacation days, and sick and other excused days as well as a lower contribution toward retirement benefits than the Oiler and Plant Maintainer titles. (Local 30's 56.1 ¶ 7-8; Pl.'s 56.1 ¶ A7-A8) Local 30 asserts that the disparity in benefits among these titles was causing dissension because upon promotion to Stationary Engineer, an employee lost benefits. (Local 30's 56.1 ¶ 9-10) Plaintiffs assert there was also dissatisfaction about the narrowing of wage differences between and among titles. (Pl.'s 56.1 ¶ 3, ¶ A10)

In 1997, Local 30 conducted a survey of City members to determine priorities for upcoming negotiations. (Local 30's 56.1 ¶ 11; Pl.'s 56.1 ¶ All) According to Local 30, the survey was answered by 31 Seniors, 234 Stationary Engineers, and 67 Oilers. Among Seniors, 16 wanted improved benefits and 15 wanted improved wages. Among Stationary Engineers, 135 wanted improved benefits and 99 wanted improved wages. Among Oilers, 50 wanted improved wages and 17 wanted improved benefits. (Local 30's 56.1 ¶ 12) Local 30 says that based on these survey results, as well as the observed dissension among members, it decided to make equalizing benefits among titles a priority in the negotiations. (Local 30's Mem. at 21) Plaintiffs dispute Local 30's interpretation of the survey results. (Pl.'s 56.1 ¶ 4).

Local 30 appointed a negotiating committee made up of Local 30 members from all the titles. At the first meeting in late 1997, the group discussed enhancing benefits for the Seniors and the Stationary Engineers. (Local 30's 56.1 ¶ 13; Pl.'s 56.1 ¶ A13).

The first negotiating session with the City was on January 22, 1998. In attendance, among others, was Dennis Steiner, the City negotiator, Local 30 President John Ahern, Business Representative Jim Gannon, and Field Representative Donald Pugh ("Local 30 leadership" or "Local 30"). (Local 30's 56.1 ¶ 14; Pl.'s 56.1 ¶ A14) The City's offer at this meeting, referred to as the "citywide offer," was a five-year agreement that offered no wage increases for the first two years and then increases totaling roughly 12 percent in the last three years of the agreement. This offer did not address the benefit disparities among the titles. (Local 30's 56.1 ¶ 14; Pl.'s 56.1 ¶ A14) After surveying membership, Local 30 rejected the citywide offer. (Local 30's 56.1 ¶ 15; Pl.'s 56.1 ¶ A15).

Local 30 leadership and the City disagree about who first proposed the idea of having a single consent determination, covering all titles, rather than separate agreements for each title — as had been the past practice. Local 30 asserts that it was the City that first proposed having a single consent determination. (Local 30's 56.1 ¶ 19). However, the City says that Local 30 first expressed interest in a single consent determination. (City's 56.1 ¶ 3) Dennis Steiner, the negotiator for the City, said: "both Local 15 and Local 30 initiated the proposal of trying to address their joint issues in the context of one consolidated consent determination. . . . The City did not initiate that proposal." (Steiner Dep. at 53) Plaintiffs argue that this disagreement is a genuine issue of material fact. Local 30 admits that there is some dispute regarding who first suggested joint negotiations, but argues that this dispute is not material. (Local 30's Reply Mem. at 9)

On May 26, 1999, the City made an offer covering four proceeding years (from July 1, 1995 to June 30, 1999) and all the titles. Under the offer, the hourly wages for all titles increased. The wages for the Seniors increased also each year — from $32.93 in 1995 to $35.67 in 1999. However, on the last day of the contract, the Seniors' wages dropped back to $32.30. (Soroka Decl., Ex. L; Local 30's 56.1 ¶ 21) Thus the Seniors would receive back pay, but virtually no increase going forward. Local 30 claims that it tried to get the City to increase the final wage of the Seniors but that the City would not vary its proposal. (Local 30's 56.1 ¶ 22). Local 30 asserts that the offer equalized benefits among the titles and increased the Seniors' annuity benefits. (Local 30's 56.1 ¶ 21) Plaintiffs state that the offer did not in fact equalize benefits over the course of the agreement — benefits became equal only at the very end of the term. (Pl.'s 56.1 ¶ 2) Plaintiffs state also that although the annuity contribution was equalized by the end of the contract, the contribution was paid for Oilers and Plant Maintainers on an hourly basis but paid for Seniors and Statutory Engineers on a daily basis, so those employees would be paid only for complete days. (Id. ¶ 2)

According to Local 30, the City informed the union that if the consent determination was rejected or litigated by any one of the titles it would be withdrawn as to all. (Local 30's 56.1 ¶ 22) According to Ahern, the City's view was that "[i]f any one title refuses it, then [the City wanted] to take the entire decree off the table." (Ahern Dep. at 59) Gannon indicated also that the City said that, if one title voted the consent determination down, it would be withdrawn as to all. (Gannon Dep. at 36-37) Steiner, the City negotiator, said: "What I said to both Locals 15 and 30 was that for this particular deal to work, we needed a ratification on behalf of each entity within Local 15 and 30; how that was done, I did not discuss." (Steiner Dep. at 55) During their depositions, Pugh and Ahern pointed to a letter that they said showed the City's position that if one title refused the offer it would be withdrawn as to all. (Pugh Dep. at 50; Ahern Dep. at 95-96) Plaintiffs allege that this letter, which stated that the agreement would no longer be binding on the parties if the parties failed to reach a consent agreement, referred to the period commencing July 1, 1999 — not the period covered by the City's offer, 1995 to 1999. (Pl.'s 56.1 ¶ A22).

Local 30 leadership held a union membership meeting on June 1, 1999. (Local 30's 56.1 ¶ 24; Pl.'s 56.1 ¶ A24) At this meeting members were told that the City had made an offer and the offer would be submitted for ratification as one consent determination. Local 30 advised members that they would vote on the offer by mail ballot and the Honest Ballot Association was chosen to handle the ratification vote. Id. Union members, including Seniors as well as those in other titles, objected at the June 1 meeting to the plan for a joint ratification vote. (Pugh Dep. at 75) Local 30 did not tell the members the specific terms of the City offer at this meeting, and thus the Seniors did not find out that their wage dropped on the last day of the agreement. (Pugh Dep. at 45) Local 30 asserts that it had not had time to prepare the City's proposal to show membership at this meeting. (Local 30's 56.1 ¶ 24).

Local 30 scheduled a meeting for July 7, 1999 with the Negotiating Committee and City Shop Stewards, to pass out and review the agreement. (Local 30's 56.1 ¶ 25; Pl.'s 56.1 ¶ A25) After seeing the City's proposal, the Seniors present at this meeting expressed their unhappiness with the drop in their wages on the last day of the contract. (Local 30's 56.1 ¶ 25; Pl.'s 56.1 ¶ A25) Plaintiffs allege that at this meeting Ahern stated that the City was setting the voting requirements. (Pl.'s 56.1 ¶ 7) Plaintiff Cunningham said that Ahern stated that "Local 30 had to comply with the voting requirements set by the City Office of Collective Bargaining . . . and that the proposed Consent Determination would be voted on by all five titles together." (Cunningham Aff. ¶ 5) Cunningham said: "Ahern also rejected a proposal that, for internal union `survey' purposes, the balloting of employees in different titles be tabulated separately. He called such a proposal `illegal' and stated that he wanted no record of a `No' vote by employees in particular titles." (Cunningham Aff. ¶ 5) The Seniors at the meeting asked for a separate meeting with Local 30 leadership, and one was scheduled for June 23, 1999. (Local 30's 56.1 ¶ 26; Pl.'s 56.1 ¶ A2 6).

On June 8, 1999, Local 30 sent out the ballot package to City members and informed them that the ballots would be counted on July 1, 1999. (Local 30's 56.1 ¶ 27; Pl.'s 56.1 ¶ A27).

Forty-three Seniors attended the June 23, 1999 meeting. The Seniors complained about the wage adjustment on the last day of the agreement and about the plan for a joint ratification vote by all five titles. (Local 30's 56.1 ¶ 28; Pl.'s 56.1 ¶ A28) Plaintiffs allege that Ahern told them at this meeting that the City was insisting on the joint ratification vote. Cunningham said in reference to Ahern's statements: "What was said was that due to the fact that it was one-consent determination the City wanted all our votes together, and we cannot separate them out." (Cunningham Dep. at 127) Plaintiff Egan stated: "the basic question was [whether] the City was making the rules on this, which is the way we had the vote, and Jack Ahern stated again, `Yes, this is the way it has to be. This is the way the City has, you know, made the offer; this is the way the City states that you have to vote this way all collectively.'" (Egan Dep. at 73) At the June 23 meeting Seniors circulated a petition urging the City to nullify the vote. (Egan Dep. at 73) According to Egan: "Jack Ahern and Mike Hack said they would sign on to any supportive measures that the senior stationary engineer would take to get this declared a new vote." (Egan Dep. at 74) However, Egan said that "when the petition went around the room and we placed it before Jack Ahern and Mike Hack, they just walked away from it." (Egan Dep. at 74) Egan said that this petition, signed by 43 members, was sent to the New York City Office of Labor Relations and OCB "asking [them] to nullify the vote." (Egan Dep. at 74) Pugh said that Hack told the Seniors "that he would do everything in his power to . . . fight the City's position on one determination or something, you know, try to do something, if he could." (Pugh Dep. at 60)

Ahern denied telling the membership that the City had dictated the type of ratification vote that would take place, (Ahern Dep. at 93), and asserted that it was the union's decision to conduct the collective vote. (Ahern Dep. at 87) Pugh said that Ahern made the decision that the vote would be counted with all titles together. (Pugh Dep. at 51) Ahern stated that he did not remember discussing with the City how the vote would be conducted. (Ahern Dep. at 87-88) Gannon said he did not remember who decided that the vote would include all titles togther, but that he was part of this decision. (Gannon Dep. at 49-50)

Pugh was asked if Ahern stated at the June 1 meeting that the City was requiring the pooled voting arrangement and he responded: "Not to my knowledge." (Pugh Dep. at 46) Gannon said that he could not recall whether Ahern told the membership that the City required that the proposal be voted on by all the titles together. (Gannon Dep. at 46).

The City claims it had no discussions with Local 30 regarding the union's ratification procedure. (City's 56.1 ¶ 6) Dennis Steiner, the negotiator for the City, said that he "had no discussion with either union [Local 15 or Local 30] on their ratification." (Steiner Dep. at 54) Steiner was asked: "Did you say that it was the City's position that the Local 30 members in all five titles had to ratify or vote to ratify this proposal together?" He responded: "Not at all." (Steiner Dep. at 55)

Although the May 26, 1999 City offer was a single consent determination covering all five titles, Local 30 does not argue that the titles could not have voted on the contract separately. If one title had voted down the agreement, apparently Local 30 and the City could have continued negotiations. Pugh was asked if anything would have prevented the parties from negotiating a new agreement and he responded that there was not. (Pugh Dep. at 51) Ahern stated also that if each title voted separately, and one rejected it, they would go back to negotiations. (Ahern Dep. at 67).

On July 1, 1999, the ballots were counted. The vote was 322 for the consent determination and 175 against it. (Local 30's 56.1 ¶ 30; Pl.'s 56.1 ¶ A30). In a letter dated July 6, 1999, Gannon advised the City that the contract had been ratified. (Local 30's 56.1 ¶ 31; Pl.'s 56.1 ¶ A31).

By a petition verified on June 15, 1999, Plaintiff Brengel filed an Improper Practice Petition before the New York City Office of Collective Bargaining claiming Local 30 had violated its duty of fair representation by holding a joint ratification vote. (Local 30's 56.1 ¶ 32; Pl.'s 56.1 ¶ A32) ...


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