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March 19, 2003


The opinion of the court was delivered by: David G. Larimer, United States District Judge



Plaintiff Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO ("Local 669"), commenced an action to enforce the terms of a collective bargaining agreement with defendant Grinnell Corporation d/b/a/ Grinnell Fire Protection ("Grinnell"), sued here as `Simplex Grinnell LP,' pursuant to the Labor Management Relations Act, 29 U.S.C. § 185(a). For purposes of this case, Local 669 represents a bargaining unit of employees in Erie and Niagara counties ("the Buffalo area bargaining unit").

Local 669 and National Fire Sprinkler Association ("NFSA"), a mulit employer national trade association of business organizations engaged in the fire protection industry, entered into a collective bargaining agreement in 2001 ("2001 agreement"). By agreement, the separate employers who elect to join NFSA authorize NFSA to represent the group of employers for collective bargaining purposes with the relevant unions. Local 669 alleges that Grinnell was a member of NFSA at the time negotiations began on the 2001 agreement, and therefore Grinnell is bound to its terms pursuant to the doctrine first announced by the National Labor Relations Board ("NLRB") in Retail Associates, Inc., 120 N.L.R.B. 388, 395 (1958).

Local 669 now moves for summary judgment seeking an order from the Court compelling Grinnell to arbitrate a grievance filed by the union with Grinnell in October 2001. Grinnell has defended the action and the pending motion claiming it has no obligation to arbitrate since it is not bound by the terms of the 2001 agreement. The controlling issue between the parties is whether Grinnell is bound by the 2001 agreement entered into by NFSA and Local 669.

There are several matters that are not in dispute. Grinnell does not dispute that if it is bound by the 2001 agreement then it must arbitrate the grievance filed by the union. In addition, Grinnell does not dispute the holding of Retail Associates, and its progeny, which require affirmative action by the employer to withdraw from its previous commitment that NFSA bargain on its behalf. Rather, Grinnell argues that summary judgment is not appropriate because issues of fact exist regarding whether it timely withdrew from NFSA prior to the start of negotiations with Local 669 in 2001 and whether the meetings between NFSA and Local 669 prior to May 10, 2001 constituted "negotiations." For the foregoing reasons, I find that no issues of fact exist to warrant a trial. Local 669's motion for summary judgment is granted.

Withdrawal From Multiemployer Bargaining Arrangement

In Retail Associates, 120 N.L.R.B. at 395, the NLRB set forth what is necessary for an employer to withdraw from and to terminate a multiemployer bargaining arrangement. The NLRB established strict requirements concerning notification and declined to permit withdrawal once "negotiations" had begun.

We would . . . refuse to permit the withdrawal of an employer or a union from a duly established multiemployer bargaining unit, except upon adequate written notice given prior to the date set by the contract for modification or to the agreed-upon date to begin the multiemployer negotiations. Where actual bargaining negotiations based on the existing multiemployer unit have begun, we would not permit, except on mutual consent, an abandonment of the unit upon which each side has committed itself to the other, absent unusual circumstances.
see also, Charles D. Bonanno Linen Serv., Inc. v. N.L.R.B., 454 U.S. 404, 410-11 (1982); N.L.R.B. v. Indep. Ass'n of Steel Fabricators, 582 F.2d 135, 145-46 (2d Cir. 1978); N.L.R.B. v. John J. Corbett Press, Inc., 401 F.2d 673 (2d Cir. 1968); N.L.R.B. v. Sheridan Creations, 357 F.2d 245, 248 (2d Cir. 1966). The required notification must be provided to the union. Notification only to the entity given authority to bargain on behalf of the group is not effective.

Here, there is no dispute that Grinnell was a member of NFSA when NFSA negotiated a 1998 agreement with the Buffalo area bargaining unit.*fn1 The 1998 agreement was set to expire in May 2001. Grinnell concedes that it was required to take some affirmative action to withdraw from NFSA and notify Local 669 of its withdrawal before negotiations on a new 2001 agreement began, or it would be bound to that agreement.

However, Grinnell claims that it notified Local 669 orally on April 25, 2001 that it wanted to bargain independently with Local 669 for the 2001 agreement. According to Grinnell, this notification came during a conversation between its Human Resources Vice President, Anne Liming, and Local 669's business manager, Gerald Singleton, at a meeting between the parties in Baltimore. Dkt. #27, Liming Aff., ¶ 4. Grinnell admits that the April 25 meeting related to national issues between the parties, not the Buffalo area bargaining unit. Nonetheless, Liming swears in an affidavit that she told Singleton at that meeting that Grinnell wanted to bargain independently of NFSA for the 2001 agreement. Singleton denies that Liming said anything about Grinnell bargaining independently of NFSA or communicated that it was withdrawing from NFSA on April 25. Dkt. #27, Ex. B, p. 15-16.

Grinnell argues that, at the very least, an issue of fact exists regarding the April 25 communication such that summary judgment is not warranted. I disagree. No genuine issue of fact exists regarding whether notice on April 25 was adequate under Retail Associates. See Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986); Lucente v. I.B.M. Corp., 310 F.3d 243, 254 (2d Cir. 2002) ("A dispute regarding a material fact is genuine `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'"). Even drawing all reasonable inferences in favor of Grinnell, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), I find that any oral communication by Liming to Singleton was insufficient to notify Local 699 that Grinnell was withdrawing its bargaining authority from NFSA. See Bermuda Container Line, Ltd. v. Int'l Longshoremen's Ass'n, 192 F.3d 250 (2d Cir. 1999) (no genuine issues of fact exist regarding whether employer was bound to multiemployer agreement).

Liming testified in an earlier deposition that, at the time she had the conversation with Singleton in April, she did not know that the 1998 agreement had been negotiated by NFSA. According to her own files, the 1998 agreement was bargained by Grinnell independently. Dkt. #27, Ex. D., pp. 11-16. Liming did not know until months later that Grinnell needed to withdraw from NFSA. Under these circumstances, no reasonable jury could find that Liming communicated to Singleton that Grinnell was withdrawing its authority from NFSA to bargain with Local 669 regarding the 2001 agreement because Liming did not know that Grinnell needed to do so in order to effectively bargain independently with Local 669. Liming's recent affidavit cannot be used to create an issue of fact when it clearly contradicts her prior deposition testimony. See, e.g., Buttry v. Gen. Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995) ("`[I]t is well settled in this circuit that a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment.'") quoting Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987).

In addition, Retail Associates states that written notice, not oral notice, is required to effectively communicate withdrawal from a multiemployer bargaining unit. Retail Associates, 120 N.L.R.B. at 395; see also Burgess Mining & Const. Corp., 239 N.L.R.B. 92 (1978) (referring to "timely written notice" of withdrawal). Although Grinnell has cited one case that suggest that oral notification may be sufficient under certain ...

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