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May 20, 2004.


The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge


I. Introduction

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 omitted).

  All parties have filed motions for summary judgment. They are denied for the reasons stated below.

  III. Facts

  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 worse.

  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 ("1994 Decision").

  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 arbitrator.

  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 n. 18.


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