The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
MEMORANDUM JUDGMENT & ORDER
This lawsuit is the culmination of more than a decade-long
pursuit of compensation for their discharge by their employer, and for their union's failure
to properly protect them under contract seniority rules. Laches
by all the parties, foot-dragging attributable to ineffective and
dilatory arbitration, and delays in the courts, explain, but do
not justify, this long drawn-out process.
II. Parties and Relief Sought
Plaintiffs are former employees of the American Telephone and
Telegraph Corporation ("AT&T") and were members of the
Communications Workers of America (the "CWA" or "Union"). The CWA
was the exclusive bargaining agent for AT&T employees at the time
of plaintiffs' employment.
This is a hybrid section 301-fair representation suit against
the Union and AT&T (as represented by three successor companies,
AT&T, Lucent Technologies and Avaya Inc., collectively referred
to as "AT&T"). The claim is that the Union breached its duty of
fair representation by failing to file a grievance with AT&T
based upon a recall of laid-off employees that took place in 1992
(the "1992 Recall"). AT&T is sued under section 301 of the Labor
Management Relations Act for allegedly breaching the collective
bargaining agreement (the "CBA") when plaintiffs were not rehired
as part of the 1992 Recall.
Plaintiffs seek a declaratory judgment that defendant CWA
breached its duty of fair representation and that defendant AT&T
breached the collective bargaining agreement. Defendant CWA asks
for a declaratory judgment that: the Union did not breach its
duty of fair representation; plaintiffs' claims are barred
because they failed to pursue and exhaust internal union
remedies; plaintiffs' claims are barred because they failed to
exhaust their contractual remedies; and plaintiffs' claims are
time-barred. Defendant AT&T demands a declaratory judgment that the Union did not breach its duty of fair
representation, and therefore all claims against the employer
must fail; AT&T also argues that plaintiffs' claims are barred by
the statute of limitations.
"To prevail against either the company or the Union, . . .
[employee-plaintiffs] must not only show that their discharge was
contrary to the contract but must also carry the burden of
demonstrating a breach of duty by the Union." DelCostello v.
Int'l Bhd. of Teamsters, 462 U.S. 151, 165 (1983) (citations
All parties have filed motions for summary judgment. They are
denied for the reasons stated below.
Plaintiffs were employees of an AT&T business unit called
Market Delivery Centers ("MDC") until 1991. In early 1991 AT&T
eliminated MDC as part of a reorganization of its Business Sales
Division. The MDC functions were divided and transferred to
already existing business units, Business Communications Systems
("BC Systems") and Business Communications Services ("BC
Services"). Former employees of the Business Sales Division,
including plaintiffs, were transferred to either BC Systems or BC
Services depending on their job functions. The Business Sales
Division was eliminated.
Shortly after the reorganization of the Business Sales
Division, AT&T decided for economic reasons to discharge
employees in the BC Services and BC Systems divisions. Plaintiffs
were laid off along with other employees during a first round of
staff reductions in February 1991. Approximately three weeks
later, a second round of layoffs occurred. In August 1992, AT&T
rehired some employees (the "1991 Layoffs"). The 1991 Layoffs
were governed by a CBA dated May 28, 1989. When the 1992 Recall occurred, the
parties had executed a new CBA dated May 29, 1992. The two CBAs
contained identical language.
The crux of the problem with the 1991 Layoffs was that for
purposes of determining seniority of the former employees of the
defunct MDC, AT&T allocated them between two, separate seniority
lists based on their new divisions. Previously, they had all been
on one, unified seniority list. The separation into two lists
occurred even though there had been no change in job duties or
titles. Under the CBA, layoffs were to be made in inverse order
of seniority. By creating two lists, the order of layoff was
altered. And, in plaintiffs' case, the alteration was for the
The Union filed a grievance on behalf of many employees,
including plaintiffs, alleging that AT&T violated the CBA in the
way it conducted 1991 Layoffs. Pursuant to their agreement, the
Union and AT&T then entered into an arbitration. The arbitrator
found that AT&T had violated the CBA and ordered that the
"Grievants . . . be made whole. . . ." Peterson Aff. at Ex. 2
The Union claims that in the course of discussing the
appropriate "make whole" relief, it first discovered that some
employees had been recalled in 1992. It contends that it was
unaware of the 1992 Recall as it was occurring. Plaintiffs claim
that they informed their union representatives of the 1992 Recall
shortly after it occurred. Clarke Aff. at ¶ 3; Brown Aff. at ¶ 3.
The Union demanded that AT&T pay plaintiffs as if they had been
recalled in 1992 as part of a "make whole" relief. After an
unexplained three year delay the Union filed suit in federal
district court in Washington, DC in 1997 to enforce the 1994
Decision. The district court ordered the parties to return to the
arbitrator to determine how the 1992 Recall affected the "make whole" relief granted in the 1994 Decision on the 1991
Layoffs. Peterson Aff. at Ex. 4.
After failed attempts to communicate with the arbitrator, the
parties were informed in 1999 that he was too ill to further
arbitrate their dispute. The Union and AT&T selected a new
arbitrator. For no known reason, this second arbitrator failed to
issue a decision. As late as 2002, the parties were seeking
action from the second arbitrator. He did not respond.
In September 2002, three of the four plaintiffs filed suit in
this district alleging that the Union violated its duty of fair
representation by failing unilaterally to terminate the second
arbitrator. They then voluntarily withdrew that complaint because
AT&T and the Union agreed to employ the services of yet a third
The third arbitrator issued an opinion on October 16, 2003.
Peterson Aff. at Ex. 1 ("2003 Decision"). He found that the
employees were entitled to back pay from the date they were laid
off in 1991 (the first round) until the second 1991 layoff (the
second round). He declined to determine if the make whole relief
included back pay from the date of the 1992 Recall, because the
Union had failed to grieve it.
Plaintiffs' case is essentially based on the Union's alleged
failure to grieve the 1992 Recall. They claim that they verbally
promptly informed their union representatives of their
dissatisfaction with the 1992 Recall. The Union disputes this and
states that it was unaware of the 1992 Recall at the time it
occurred. The third arbitrator's decision contains a footnote
that the Union was "unaware of the recall." 2003 Decision at 15