United States District Court, E.D. New York
May 20, 2004.
WILMA F. CLARKE; MARIE BROWN; RUBY B. HUGGINS; and GERALDINE PARKS, Plaintiffs,
COMMUNICATIONS WORKERS OF AMERICA; AT&T CORPORATION; LUCENT TECHNOLOGIES, INC.; AVAYA, INC.; AFL-CIO; and CLC, Defendants.
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
A. Summary Judgment Standard
Summary judgment may be granted only where it is shown that
there is "no genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56©); Celotex
Corp. v. Catrett, 477 U.S. 317 (1986). Inferences will be drawn
in a light favorable to the party opposing the motion. L.B.
Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir.
1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)).
The moving party bears the initial burden of showing that no
genuine issue of material fact exists. Celotex, 477 U.S. 317 at
323. Once the moving party has met this burden, the nonmoving
party must come forward with "specific facts showing that there
is a genuine issue for trial." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986).
B. Statute of Limitations
The statute of limitations for a hybrid section 301-fair
representation claim is six months. See DelCostello v. Int'l
Bhd. of Teamsters, 462 U.S. 166 (1983); Ghartey v. St. John's
Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989). A central legal
question is at what point the statute of limitations began to
The general rule is that a claim accrues on the date the
employee "knew or reasonably should have known that [a breach of
the duty of fair representation] had occurred." Kavowras v. The
New York Times Co., 328 F.3d 50, 55 (2d Cir. 2003) (quoting
Santos v. Dist. Council of New York City, 619 F.2d 963, 969 (2d
Cir. 1980)). In Kavowras, for example, the court held that the
plaintiff's claim was barred when his suit was filed almost two
years after he had "actual knowledge of the breach." Kavowras,
328 F.3d at 55. Defendants cite Cohen v. Flushing Hospital and
Medical Center for the same proposition, that plaintiffs' claims
accrued when they had actual knowledge of the Union's alleged
breach. 68 F.3d 64 (2d Cir. 1995). In Cohen, the breach was the Union's failure to represent that plaintiff at
all. See also Guillaume v. Int'l Serv. Sys., Inc., 2000 WL
45447 (S.D.N.Y. Jan. 19, 2000).
Ghartey v. St. John's Queens Hospital is instructive.
869 F.2d 160 (2d Cir. 1989). The Ghartey case as here involved "a
situation in which a union represented an employee throughout an
arbitration hearing, through to its termination by the
arbitrator's issuance of an award." Id. at 163. The court
thought it unwise to require an employee to bring suit against
her union based on poor representation before she could discover
the result of the union's efforts. Adherence to the general rule
as stated in Kavowras would require an employee to sue the
union while the union was still representing her. The court
recognized the possibility that the union and employee could
prevail in arbitration despite poor representation, thereby
obviating any basis for a lawsuit. "In such a case, intervention
by the district court would be unnecessary, superfluous and
Where a plaintiff's complaint is based on inadequate union
representation during arbitration, the limitations period begins
running on the date of the final arbitration order and award.
See Id.; Guillaume, 2000 WL 45447 at *5; Lettis v. United
States Postal Svc., 39 F. Supp.2d 181, 192 (E.D.N.Y. 1998); see
also Ramey v. Dist. 14, Int'l Assoc. of Machinists & Aerospace
Workers, 2002 WL 32152292, *7 (E.D.N.Y. Nov. 4, 2002) (noting
that there is genuine issue of material fact as to whether union
decision was "final," thereby providing a basis for suit). This
conclusion is not inconsistent with the general rule that claims
accrue upon the plaintiff's knowledge of a breach. It is only
after an unfavorable arbitration decision that a plaintiff
"knows" that the union's conduct has breached the standards of
C. Duty to Exhaust Intra-Union Remedies The district court has discretion to require exhaustion of the
intra-union procedures. Three factors influence the court's
[F]irst, whether union officials are so hostile to
the employee that he could not hope to obtain a fair
hearing on his claim; second, whether the internal
union appeals procedures would be inadequate either
to reactivate the employee's grievance or to award
him the full relief he seeks under § 301; and third,
whether exhaustion of internal procedures would
unreasonably delay the employee's opportunity to
obtain a judicial hearing on the merits of his claim.
If any of these factors are found to exist, the court
may properly excuse the employee's failure to
Clayton v. United Auto. Workers, 451 U.S. 679
, 688 (1981).
Decisive in the instant case is the second factor and the basis
of the Court's central holding in Clayton: "[W]here an internal
union appeals procedure cannot result in reactivation of the
employee's grievance or an award of the complete relief sought in
his § 301 suit, exhaustion will not be required with respect to
either the suit against the employer or the suit against the
union." Id. at 685.
In Clayton, the plaintiff was dismissed for violating a
behavioral rule. He filed a grievance, and the union sought
arbitration before ultimately deciding to withdraw its request
for arbitration. Instead of appealing the union's decision not to
request arbitration, the plaintiff filed suit under section 301,
claiming that the union had breached its duty of fair
representation. He sought reinstatement from his employer and
monetary damages from the union and employer. The union argued
that the suit should be dismissed because the employee had failed
to exhaust internal union procedures. Because the union could
"neither reinstate [the plaintiff] in his job . . . nor
reactivate his grievance," it was not necessary that he exhaust
internal union procedures. Id. at 691-92; see also Maddalone
v. Local 17, United Bhd. of Carpenters & Joiners of Am.,
152 F.3d 178, 186-87 (2d Cir. 1998) (finding that where union
procedures provided for reactivation of grievance, employee must exhaust procedures); Skolnik v. Am.
Guild of Musical Artists & New York City Opera, Inc., 2001 U.S.
Dist. LEXIS 10621 (S.D.N.Y. 2001) (exhaustion required when
internal union procedures permit reactivation of grievance
against employer); Williams v. United Auto. Workers,
841 F. Supp. 499, 504 (W.D.N.Y. 1993) (finding that union could not
reactivate grievance and therefore exhaustion was not required).
The union bears the burden of proving that its internal appeals
procedures are reasonable and adequate. It must prove that the
procedures satisfy the three factors enumerated in Clayton. See
Maddalone, 152 F.3d at 186. To be deemed reasonable and
adequate, the procedures must be capable of providing full
relief. See, e.g., Id. at 187; Skolnik, 2001 U.S. Dist. LEXIS
at *10; Monaco v. Smith, 2004 U.S. Dist. LEXIS 1334 (S.D.N.Y.
2004) (internal remedies did not provide for punitive damages,
which were sought by plaintiff).
D. Duty to Exhaust Contractual Remedies
"As a general rule in cases to which federal law applies,
federal labor policy requires that individual employees wishing
to assert contract grievances must attempt use of the contract
grievance procedure agreed upon by employer and union as the mode
of redress." Republic Steel Corp. v. Maddox, 379 U.S. 650, 652
(1965) (emphasis in original); see also Abrams v. Carrier
Corp., 434 F.2d 1234, 1246 (2d Cir. 1970) ("The requirement that
an aggrieved employee resort to the grievance procedure is not a
mere ritual or formality."). Plaintiffs contend that the rule
requiring workers to rely first on grievance rules does not apply
where the union has breached its duty of fair representation.
See Vaca v. Sipes, 386 U.S. 171, 185-86 (1967); see also
Peterson v. Rath Packing Co., 461 F.2d 312 (8th Cir. 1972)
("[W]hen a good faith attempt to present a grievance is made and
the Union decides not to further represent the individuals, the
law relieves a party of his responsibility to further exhaust contractual
The language of the CBA determines whether actions to initiate
the grievance process qualify as "attempted" uses of the
grievance procedure. In Schum v. South Buffalo Ry. Co., the
plaintiff wrote a letter to the union office and subsequently was
assured that the union would take up his grievance. 496 F.2d 328
(2d Cir. 1974). The union failed to follow through with the
grievance and, after being sued, claimed on summary judgment that
the plaintiff had not exhausted the administrative processes. The
court found that there was an "attempt" to use the official
procedures, and that the plaintiff's suit was not barred for lack
of exhaustion. Id. at 331-32. Likewise, in Scott v. Anchor
Motor Freight, Inc., a "timely sent" and "properly addressed"
letter was a "sufficient attempt to invoke the collective
bargaining agreement's grievance procedure." 496 F.2d 276, 279
(6th Cir. 1974).
E. Duty of Fair Representation
An inquiry into the union's behavior begins with the "language
contained in the collective bargaining agreement." Spellacy v.
Airline Pilots Assoc.-Int'l, 156 F.3d 120, 127 (2d Cir. 1990).
The Court of Appeals for the Second Circuit "has recognized
that a union may breach its duty when it fails to process a
meritorious grievance in a timely fashion with the consequence
that arbitration on the merits is precluded." Young v. United
States Postal Svc., 907 F.2d 305, 308 (2d Cir. 1990) (emphasis
added); Schum v. South Buffalo Ry. Co., 496 F.2d 328, 330-32
(2d Cir. 1974).
"To establish a breach of duty of fair representation `[t]he
union's conduct must, first, have been arbitrary, discriminatory
or in bad faith, and second, it must have seriously undermine[d]
the arbitral process.'" Mack v. Otis Elevator Co.,
326 F.3d 116, 129 (2d Cir. 2003) (citation omitted); see also Vaca v. Sipes, 386 U.S. 171, 177
(1967). When an employee claims that the union's decision not to
file a grievance is a breach of the duty of fair representation,
courts typically seek to determine whether the union's conduct
can be characterized as arbitrary. See e.g., Cruz v. Loc. Union
No. 3 of the Int'l Bhd. of Elec. Workers, 34 F.3d 1148 (2d Cir.
1994) (finding that failure to pursue grievance claim was
arbitrary); Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270,
1274 (9th Cir. 1983) (holding that union's failure to process
grievance might have been arbitrary); Caputo v. Nat'l Assoc. of
Letter Carriers, 730 F. Supp. 1221 (E.D.N.Y. 1990) ("At issue in
this case is whether the union's failure to file the grievance . . .
is properly characterized as arbitrary."). But cf. Banks v.
Bethlehem Steel Corp., 870 F.2d 1438, 1444 (9th Cir. 1989)
("While unions are accorded great leeway in deciding how to
handle employee grievances, the merits of the underlying dispute
or claim are not irrelevant to evaluating bad faith.").
The Second Circuit stated in Cruz:
Included in the union's duty of fair representation
`is the fair and prompt consideration and, if
dictated by controlling legal standards, processing
on behalf of employees of their claims under contract
dispute resolution procedures, . . ., although the
duty of fair representation is not breached where the
union fails to process a meritless grievance, engages
in mere negligent conduct, or fails to process a
grievance due to error in evaluating the merits of
34 F.3d at 1153-54 (citations omitted). In Cruz, the plaintiffs
verbally complained to their union representatives regarding an
employer's actions. The union did not investigate the validity of
their complaints nor did it file a grievance on their behalf. The
court found that the CBA did not require that the employees file
complaints with the union in writing; it upheld the jury's
finding that the union's failure to act was arbitrary. In contrast, in
Mack v. Otis Elevator Co., the plaintiff did not request that
the union file a grievance and did not file a written charge
against a union member as required by the union's grievance
procedures. 326 F.3d 116
(2d Cir. 2003). The CBA required a
"written charge." The court held that the union had not breached
its duty to represent the plaintiff, having not filed a grievance
"because [the plaintiff] never requested that it do so." Id. at
"[A]rbitary conduct amounting to a breach is not limited to
intentional conduct by union officials but may include acts of
omission which, while not calculated to harm union members, `may
be so egregious, so far short of minimum standards of fairness to
the employee and so unrelated to legitimate union interests as to
be arbitrary.'" Cruz, 34 F.3d at 1153 (citations omitted).
V. Application of Law to Facts
A. Statute of Limitations
Plaintiffs' section 301-fair representation claim is not
clearly barred by the statute of limitations. The final Opinion
and Award of the third arbitrator was issued on October 16, 2003.
He found that he could not "address the 1992 recall," because the
Union had not filed a grievance within the sixty day time limit.
2003 Decision at 15. It matters not, as the Union contends, that
plaintiffs did not file this lawsuit within six months of the
1992 Recall or during the intervening periods. The arbitrator's
opinion established, for purposes of this motion, that whether
plaintiffs would prevail in arbitration on their claims
concerning the 1992 Recall was still at issue in the final
The facts of this case implicate directly the court's reasoning
in Ghartey. Even though the recall occurred in August of 1992, as late as October of 2003
plaintiffs were still awaiting an arbitrator's decision on
whether they would prevail on their claims related to the 1992
Recall. For plaintiffs to have filed a lawsuit anytime before the
final arbitration decision would have been "inefficient and
premature." Ghartey, 869 F.2d at 163.
CWA points to the fact that more than a decade has passed since
the 1992 Recall. But the enormity of the delay is due to many
factors, including the unfortunate illness of the first
arbitrator, the incomprehensible failure of the second arbitrator
to act, and the Union's lack of alacrity in pressing its claims.
Defendant AT&T argues that plaintiffs should have filed a
complaint following the issuance of the 1994 Decision. When that
order was handed down, however, it was unclear whether the "make
whole" provision addressed the employees' claims bottomed on the
1992 Recall. Three years passed before the Union filed suit for
clarification of the 1994 Order. It is arguable that during the
intervening three years, the Union continued to represent
plaintiffs, and that there was a substantial likelihood that the
parties would be compelled to return to arbitration to resolve
the matter. Thus, under Ghartey, the 1994 Decision cannot be
considered the "final" arbitration decision.
The final arbitration decision was issued on October 16, 2003.
Plaintiffs initiated this lawsuit on November 11, 2003. The
statute of limitations can not be said, on this motion, to have
The equitable doctrine of laches does not apply. "To determine
whether [the plaintiff's] claims are barred by laches, the
district court may wish to consider factors such as whether (and when) [the plaintiff] knew of [the defendant's] alleged
misconduct, whether [the plaintiff] inexcusably delayed in taking
action, and whether [the defendant] was prejudiced by any delay."
Brennan v. Nassau County, 352 F.3d 60, 64 (2d Cir. 2003). The
defense of laches is not confined to equitable claims. See,
e.g., Oneida County v. Oneida Indian Nation of New York,
470 U.S. 226, 262 (1985) ("[T]he application of laches . . . will
promote uniformity of result in law and at equity. . . .")
(emphasis added); Black's Law Dictionary 879 (1999) (defining
laches as "[u]nreasonable delay . . . in pursuing a right or
claim almost always an equitable one") (emphasis added).
AT&T's contribution to the inexcusable delay in obtaining a final
arbitration ruling leaves it with "unclean hands." See, e.g.,
King v. Innovation Books, 976 F.2d 824, 833 (2d Cir. 1992)
("unclean hands behavior" allows district court discretion to
reject laches defense).
C. Duty to Exhaust Intra-Union Remedies
Defendant has failed to satisfy the burden of proving that the
factors listed in Clayton do not apply to its internal appeals
process. It is not disputed by any party that plaintiffs did not
utilize the intra-union appeals process when discovering that the
union had not taken official action with regard to the 1992
Recall. But, under the second factor in Clayton, defendant has
not shown that plaintiffs would be able to reactivate their
grievance against AT&T through the intra-union process.
Plaintiffs suggest that utilizing the intra-union process would
be futile-albeit for different reasons. As long as plaintiffs
have disputed defendant's exhaustion claim based on inadequacy or
futility, defendant must do more than show that the procedure is
reasonable. See Johnson v. Gen. Motors, 641 F.2d 1075, 1080 (2d
Cir. 1981) ("In this case, Johnson does not claim inadequacy or
futility of the appeals procedure. Accordingly, we need consider
only the reasonableness of the intraunion remedy in light of all the
circumstances."); Rodriguez v. Int'l Broth. of Teamsters, 1999
U.S. Dist. LEXIS 15811 *11-*12 (S.D.N.Y. 1999). Defendant has
done nothing more than state that the internal rules and
procedures are "straightforward," "simple" and "reasonable."
(Def. Mem. at 16.) The Union has not shown that the internal
procedures could reactivate plaintiffs' grievance against AT&T or
provide "complete relief sought in [their] § 301 suit."
Clayton, 451 U.S. at 685. Defendant's summary judgment claim
that plaintiffs' suit is barred by their failure to exhaust
intra-union procedures is not supported.
D. Duty to Exhaust Contractual Remedies
A showing that a party has attempted to avail itself of the
grievance procedures requires a reading of the relevant
collective bargaining agreement. Plaintiffs claim that they
communicated verbally to their union representatives that they
should have been rehired as part of the 1992 Recall. They contend
that the union representatives assured them that the union would
take action on their behalf. See Clarke Aff. The Union contends
that it did not know about the 1992 Recall in time to file a
grievance, citing a footnote in the arbitrator's decision that
states: "The fact that the Union was unaware of the recall does
not change the fact that it was a grievable event." 2003 Decision
at 15 n. 18. A parenthetical aside in a footnote is not an
arbitrator's factual finding.
The CBA does not state that an employee's complaint to the
Union must be in writing. Viewing the facts in a light favorable
to plaintiffs, the CBA does not foreclose a finding that a verbal
message constitutes an "attempt" to notify under the controlling
and persuasive caselaw. If the Union has breached its duty of
fair representation, as plaintiffs claim, then they would be
relieved of the duty to exhaust contractual remedies. Summary
judgment is not appropriate. E. Duty of Fair Representation
To find a breach of the duty of fair representation, the court
must determine that 1) plaintiffs had a meritorious grievance, 2)
the Union was aware of the grievance, and 3) the Union acted
arbitrarily in failing to process plaintiffs' grievance. See,
e.g., Young v. United States Postal Svc., 907 F.2d 305, 308 (2d
1. Merits of Grievance
The parties disagree on whether plaintiffs' grievance has
merit. Plaintiffs contend that they should have been rehired by
AT&T under the CBA during the 1992 Recall. Defendant AT&T argues
that the 1992 Recall did not violate the CBA, and, consequently,
the grievance is meritless.
The original arbitration decision found that the 1991 Layoffs
should have utilized one seniority list rather than the two AT&T
used. The parties are bound by that decision. By the time of the
1992 Recall, the "business unit" for which plaintiffs were
employed was no longer in existence. Its employees were
transferred into two separate business units with substantially
the same job functions.
The CBA states that recalls "in the . . . Organization . . .
within three years of the last layoff therein" shall be in
"inverse order in which such employees were laid off." AT&T
argues that "Organization" refers to the two separate business
units, and claims that the 1992 Recall was properly based on two,
separate seniority lists. AT&T proceeded to recall employees
based on seniority within the two reorganized business units.
Plaintiffs argue that since the arbitrator decided that the 1991
Layoffs should have utilized one, unified seniority list, then
the 1992 Recall should have been based on that unified seniority
list. Although plaintiffs may have been the most senior out of a
unified pool of workers laid off in 1991 from the old business
unit, they were arguably not most senior within the newly
organized units. AT&T's position is that even if the arbitrator
found that the 1991 Layoffs were done improperly, the 1992 Recall
was not governed by that same seniority list.
Although AT&T contends that plaintiffs' grievance lacks merit
as required under Vaca, the question is close enough to deny
the motions for summary judgment. After representing plaintiffs
in arbitration for more than ten years, the Union is now in the
awkward position of having to argue that the grievance is
meritless. In fact, the Union continued to argue until the very
end plaintiffs' case before the third arbitrator. The final
decision of the third arbitrator states: "The Union further
responded that if the Grievants had been laid off properly at the
time of the second 1991 layoff, they would have been recalled in
August 1992 when the Company effected a partial recall. . . ."
Peterson Aff. at Ex. 1 at 8. This is circumstantial evidence of
the Union's belief in the merits of plaintiffs' grievance.
Under Young v. United States Postal Service, evidence that
the union thought a claim was valid can be used to show that the
grievance was meritorious. See Young, 907 F.2d at 307-09. In
Young, the court reasoned that the union had no reason to
pursue vigorously a claim that lacked merit. Id. In the instant
case, the Union continued to pursue plaintiffs' claim for more
than a decade. This is substantial evidence rebutting AT&T's
claim that the grievance is meritless.
The scope of this question is a narrow one of contract
interpretation, but the entire is case may depend on it. Given
the unsettled facts, it is premature to grant plaintiffs' motion
for a declaratory judgment that AT&T breached the CBA.
2. Union's Awareness Summary judgment is inappropriate here where the court
confronts a critical factual dispute. At least one plaintiff
claims that she verbally informed her union representative of her
grievance concerning the 1992 Recall. The Union claims that it
was unaware of the 1992 Recall until many months and perhaps
years had passed.
3. Were the Union's Actions Arbitrary?
Whether the Union's alleged failure to process plaintiffs'
grievance constitutes an "arbitrary" act is a question of fact,
best preserved for trial. Under Cruz, a jury can determine that
the Union's failure to process a grievance after sufficient
verbal notice from employees is arbitrary and a breach of its
duty. Cruz v. Loc. Union No. 3 of the Int'l Broth. of Elec.
Workers, 34 F.3d 1148 (2d Cir. 1994).
Here, the evidentiary discrepancies are too great to permit
summary decision. Plaintiffs' and defendants' motions for summary
judgement are denied.
All parties' motions for summary judgment are denied. No costs
Trial is set for September 20, 2004. A pretrial conference is
scheduled for September 7, 2004. Oral instructions on discovery
and other procedural preparations for trial have been given to
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