United States District Court, E.D. New York
July 14, 2004.
LOREE TAND, Plaintiff,
SOLOMON SCHECHTER DAY SCHOOL OF NASSAU COUNTY, Defendant.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
This action arises out of claims by Loree Tand ("Tand" or the
"plaintiff") that her former employer Solomon Schechter Day
School of Nassau County ("Solomon Schechter" or the "defendant")
terminated her employment in violation of the collective
bargaining agreement that governed Tand's employment (the "CBA"
or the "Agreement"). Presently before the Court is a motion by
Solomon Schechter to dismiss the complaint pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed.R. Civ.
P.") for failure to state a claim upon which relief can be
granted, or alternatively, for summary judgment pursuant to
The facts are taken from the complaint unless otherwise noted.
Sometime in 1999, Tand commenced employment at Solomon Schechter
as a faculty member. Effective from July 1, 2001 through June 30,
2005, the CBA was in place between Solomon Schechter and the
United Teachers Association of Solomon Schechter Day School of
Nassau County, NEA/NY (the "Teachers Association"), the labor
union recognized by Solomon Schechter as the representative of
its employees, including Tand
The complaint states that according to Article V(b) of the CBA,
"faculty members . . . were to receive oral and written notice of
non-reappointment no later than April 1st, of the third year
or any successive year of service at [the] school." Compl. 6.
The 2002-2003 school year was to be Tand's fourth year of
employment at Solomon Schechter. According to the terms of the
CBA, Tand was to receive a base salary of $36,855. In addition to
her base salary, Tand was entitled to additional compensation for
coaching athletics in the sum of $11,200.
By April 1, 2002, Tand did not receive notice of
"non-reappointment." Thereafter, in a letter dated April 8, 2002,
Solomon Schechter informed the plaintiff that her reappointment
as a full-time teacher at Solomon Schechter was approved for the
2002-2003 school year. Subsequently, on August 21, 2002, Tand met
with the administration of Solomon Schechter and was informed
that due to budgetary restraints, she would not be employed for
the 2002-2003 school year.
The complaint alleges that the August 21, 2002 notification of
non-reappointment was untimely under the terms of the CBA and
therefore constituted a breach of the Agreement.
On October 27, 2003, the plaintiff commenced the present action
in the Supreme Court, Nassau County. In this action, the
plaintiff seeks damages in the amount of $48,055, representing
the salary she was to earn during the 2002-2003 school year. On
November 19, 2003, the defendant removed the action to the Court
pursuant to 28 U.S.C. 1441 and 1446(a).
The defendant now moves to dismiss the claims pursuant to
Rule 12(b)(6) for failure to state a claim upon which relief can be
granted, or alternatively, for summary judgment. In support of
its motion, the defendant argues that: (1) the plaintiffs claims
are pre-empted by section 301 of the Labor Management Relations
Act, 29 U.S.C. 185, ("LMRA" or the "Act") and barred by the
Act's six-month statute of limitations; and (2) the plaintiffs
claims are covered by the CBA and as such, the defendant was
compelled to use the contractual grievance and arbitration
remedies provided for in the Agreement.
A. Rule 12(b)(6) Standard
The Court should not dismiss the complaint pursuant to
Rule 12(b)(6) unless it appears "`beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.'" Goldman v. Belden, 754 F.2d 1059, 1065
(2d Cir. 1985) (quoting Conley v. Gibson, 355 U.S. 41, 45-46,
2 L.Ed.2d 80, 78 S.Ct. 99 (1957)); see also King v. Simpson,
189 F.3d 284, 287 (2d Cir. 1999); Bernheim v. Litt,
79 F.3d 318, 321 (2d Cir. 1996). In deciding the motion the Court must
determine whether the complaint on its face is legally
sufficient. Goldman, 754 F.2d at 1067. In doing so, the Court
must accept the allegations of the complaint as true and construe
all reasonable inferences in favor of the plaintiff. See Tarshis
v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000) (citing Desiderio
v. National Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d
In deciding a Rule 12(b)(6) motion a court may consider "only
the facts alleged in the pleadings, documents attached as
exhibits or incorporated by reference in the pleadings and
matters of which judicial notice may be taken. . . ." Samuels v.
Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993);
Tarshis, 211 F.3d at 39 (citing Allen v. WestPoint-Pepperell,
Inc., 945 F.2d 40, 44 (2d Cir. 1991)).
Here, the defendant's Reply Memorandum of Law in Further
Support of the Motion to Dismiss the Complaint includes facts
relating to another employee that were not included in the
complaint. Def. Reply Mem. of Law 4. The Court declines to
covert their motion to one for summary judgment in order to
consider the material. See Fonte v. Bd. of Managers of Cont'l
Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988) (stating that a
court has the choice of converting a Rule 12(b)(6) motion to one
for summary judgment in order to consider material outside the
pleadings but must afford all parties an opportunity to submit
supporting material). The Court also notes that the defendant did
not follow the Court's rules regarding making motions for summary
judgment. See Individual Rule IV(C). Accordingly, the Court
will address this only as a motion to dismiss under
B. Section 301 Preemption
The defendant contends that section 301 of the LMRA governs
this action and, as such, a six-month statute of limitation
applies. The Court must first decide whether section 301 applies
to this case and if so, what is the appropriate statute of
1. Application of Section 301
Section 301 of the LMRA, among other things, "governs actions
by an employee against an employer for breach of a collective
bargaining agreement." Dougherty v. American Tel. and Tel. Co.,
902 F.2d 201, 203 (2d. Cir. 1990); see also Heaning v. NYNEX-New
York, 945 F. Supp. 641, 645 (S.D.N.Y. 1996). Suits arising under
section 301 include "those seeking to vindicate `uniquely
personal' rights of employees such as wages, hours, overtime pay,
and wrongful discharge." Hines v. Anchor Motor Freight, Inc.,
424 U.S. 554, 562, 47 L.Ed.2d 231, 96 S.Ct. 1048 (1976)
(quoting Smith v. Evening News Assn., 371 U.S. 195, 199,
9 L.Ed.2d 246, 83 S.Ct. 267 (1962)).
Thus, Section 301 preempts state law claims in any case
involving the interpretation of rights and responsibilities under
a collective bargaining agreement, regardless of whether the
plaintiff's claims sound in tort or contract. See Cespuglio v.
Ward, No. 03 CIV. 8603, 2004 WL 1088235, at *3 (S.D.N.Y May 13,
2004); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220,
85 L.Ed.2d 206, 105 S.Ct. 1904 (1985) (State law claims are
preempted to the extent that resolution of those claims "is
substantially dependent upon analysis of the terms of an
agreement made between the parties in a labor contract.")
However, state law claims are not preempted by federal labor law
if they exist independently of a collective bargaining agreement
and can be resolved without its interpretation. Fleming v. Stop
& Shop Supermarket Co., No. 96 Civ. 594, 1997 WL 298399, at * 7
(D. Conn March 31, 1997) (The test for determining whether a
state law claim is preempted by section 301 is "whether the
claims exist independent of any rights established by the
contract or whether the claims are inextricably intertwined with
considerations of the terms of the contract." (internal
Here, the plaintiff alleges that Solomon Schechter's
"notification of non-reappointment on August 21, 2002 was
untimely under the terms of the [CBA] and therefore a breach of
the [CBA]." Compl. ¶ 10. In order to determine whether there was,
in fact, a breach of the CBA, the Court must determine the
"rights and responsibilities" of the parties under the CBA. The
Court must interpret certain articles in the CBA including
"Article V Notice of Non-Reappointment and Resignation." Thus,
the plaintiff's claims are preempted by Section 301. See
Dougherty, 902 F.2d at 203 (2d. Cir. 1990).
2. Statute of Limitations
Section 301 does not contain a statute of limitations period.
Local 802, Assoc. Musicians of Greater New York v. Parker
Meridien Hotel, 145 F.3d 85, 88 (2d Cir. 1998); see also
AFL-CIO v. Hoosier Cardinal Corp., 383 U.S. 696, 697-98,
16 L.Ed.2d 192, 86 S.Ct. 1107 (1966). The defendant argues that
pursuant to DelCostello v. International Brotherhood of
Teamsters, 462 U.S. 151, 172, 76 L.Ed.2d 476, 103 S.Ct. 2281
(1983), a six-month statute of limitations applies. The Court
disagrees. DelCostello addresses the statute of limitations for
"hybrid" claims. See DelCostello, 462 U.S. at 164 (stating that
in "hybrid" section 301 actions, i.e. actions containing
allegations against both the employer and the union, courts
should borrow the six-month statute of limitations period set
forth in section 10(b) of the National Labor Relations Act,
29 U.S.C. 158).
Contrary to the defendant's contention, the current case is
most properly characterized as a pure section 301 action in that
only Solomon Schechter is named as a defendant. Although hybrid
claims may be found in cases where the union is not a named
defendant but where the pleadings allege wrongdoing on the
union's behalf, DelCostello, 462 U.S. at 164-165, here, the
complaint does not indicate that the union breached its duty of
fair representation to the plaintiff.
In a pure section 301 action, such as this, the "most
appropriate" state statute of limitations should be applied.
Hoosier, 383 U.S. at 703-704. (stating that when a federal
statute fails to include a limitations period, the general rule
is to apply the most appropriate state statute of limitations to
the federal cause of action). An action such as this which
"closely resembles the traditional section 301 breach of contract
action . . . [is] governed by analogous state contract law
limitations." Here, Tand is alleging a breach of the terms and
conditions of the CBA. Thus, a six-year statute of limitation
applies to this action. O'Hare v. General Machine Transport
Corp., 740 F.2d 160, 167 (2d Cir. 1984). See also Tobin v.
Barry, 678 F. Supp. 1018, 1022 (S.D.N.Y. 1987) (applying a six
year state of limitations for contract actions to pure section
301 action for breach of a union constitution).
In this case, Tand first learned about the wrongful termination
on August 21, 2002 and filed her action on October 27, 2003. The
Court finds that this action is timely filed under the Act.
Accordingly, the defendant's motion to dismiss based upon the
defense of the statute of limitations is denied.
B. As to the Grievance and Arbitration Procedures
As stated above, the defendant argues that the complaint must
be dismissed because the "plaintiff deliberately chose to
circumvent the clear language of the CBA [Articles VIII] and the
grievance and arbitration mechanisms available to her." Def.
Reply Mem. of Law 3.
In general, when a collective bargaining agreement provides for
arbitration and grievance procedures for employee grievances, the
aggrieved employee must make an attempt to exhaust the procedures
set forth in the governing collective bargaining agreement prior
to resorting to judicial relief. Vaca v. Sipes, 386 U.S. 171,
184, 17 L.Ed.2d 842, 87 S.Ct. 903 (1967); Dougherty, 902
F.2d at 203 (citation omitted); see also Lopez v. Time, Inc.,
No. 93 Civ. 5330, 1994 WL 88062, at *5 (S.D.N.Y. March 14, 1994)
("It is well established that, before bringing a section 301
action in federal court against an employer, a plaintiff-employee
must first exhaust grievance procedures provided by the relevant
collective bargaining agreement."); Cespuglio v. Ward, No. 03
Civ. 8603, 2004 WL 1088235, at * 4 (S.D.N.Y. 2004) ("If employees
could sue under section 301 in federal courts in the first
instance, mandatory grievance or arbitration proceedings would be
meaningless."). "Absent an express provision excluding a
particular grievance from arbitration, only the most forceful
evidence of a purpose to exclude the claim from arbitration will
satisfy a party's substantial hurdle to rebut this presumption of
arbitrability." Vera v. Saks & Co., 335 F.3d 109, 118 (2d Cir.
2003) (internal quotations omitted).
However, exhaustion of grievance and arbitration requirements
may be excused where "(1) the employer's conduct amounts to a
repudiation of the contractual procedures, or (2) the grievance
procedure is controlled by the union and the employee has been
prevented from exhausting his contractual remedies by the union's
wrongful refusal to process the grievance." Verrilli v. Sikorsky
Aircraft Corp., No. 03 Civ. 541, 2993 WL 23138450, at *1 (D.
Conn. Dec. 8, 2003) (citing Vaca, 386 U.S. at 185).
Article VIII of the CBA states in part:
Article VIII Grievance and Arbitration Procedure
A. Grievances are claims by an aggrieved unit member
that as to him or her . . . there has been a
violation of the provision(s) of this agreement. The
grievant may raise a grievance by conforming to the
procedure set forth in paragraph "C" herein
below. . . .
This Article further states that "grievances shall be reduced
to writing and submitted to the principal . . . within thirty
(30) calendar days of the act or occurrence giving rise to the
grievance." CBA Art. VIII (C)(a). The plaintiff contends that
Article VIII is limited to tenured teachers. See Plf. Aff. in
Opp. ¶ 9 (stating that because "Article VIII is silent as to who
is a `unit member' . . . the inference that a `unit member' is a
tenured teacher is obvious."). Article I sets forth the
definition of the "bargaining unit." CBA Art. I. It states that
the "bargaining unit" is composed of those persons employed on a
yearly basis or longer by the school who (1) are certified as a
teacher by the New York State Commissioner of Education or the
Hebrew Equivalent; (2) is responsible for, among other things,
the planning, representation and evaluation of classes for
students; and (3) is assigned to non-teaching duties in the same
manner as teachers.
Further, the use of the permissive word "may" in Article
VIII(A) "is not sufficient to overcome the presumption that
parties are not free to avoid the contract's arbitration
procedures." Lopez, 1994 WL 88062, at *5; see also New York
Cross Harbor Railroad Terminal Corp. v. Consolidated Rail Corp.,
72 F. Supp.2d 70, 77 (E.D.N.Y. 1998) ("Because parties may
always agree to arbitrate a dispute, to interpret an arbitration
agreement that uses the term `may' as permitting rather than
mandating would violate the age-old principle that contracts must
not be interpreted so as to render clauses superfluous or
meaningless." (citations omitted)).
Here, there is no basis for excusing the exhaustion of
grievance and arbitration remedies. Moreover, the complaint
contains no allegation concerning the grievance or arbitration of
the plaintiff's alleged wrongful discharge. Without this
information, the Court cannot determine whether the plaintiff has
a valid claim for relief under Section 301. Therefore, the Court
will grant the motion to dismiss but give the plaintiff leave to
serve an amended complaint to include the relevant allegations,
if any, regarding grievance of her claim pursuant to Article VIII
of the CBA.
Based on the foregoing, it is hereby
ORDERED, that the motion to dismiss the complaint is
GRANTED; and it is further
ORDERED, that the complaint is dismissed without prejudice;
and it is further
ORDERED, that the plaintiff shall be permitted to serve and
file an amended complaint for the sole purpose to include
allegations relating to the grievance of her claim pursuant to
Article VIII of the CBA within thirty days of the date of this
Order; and it is further
ORDERED, that if the plaintiff fails to file an amended
complaint within the time prescribed above, the Clerk of the
Court is directed to close this case.
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