The opinion of the court was delivered by: HAROLD BAER, JR., District Judge
In this case, plaintiff Theodore Kavowras ("Kavowras") has
asserted a "hybrid" claim, alleging a breach of the duty of fair
representation and a violation of the Labor-Management Relations
Act ("LMRA") § 301, 29 U.S.C. § 185, and pendent state law
discrimination claims under New York State Human Rights Law, N.Y.
Exec. L. § 296(1)(a), and New York City Human Rights Law, N.Y.C.
Admin. Code § 8-108(1)(a). Defendants, the New York Times Company
("the Times") and the Newspaper and Mail Deliverers' Union ("the
Union"), now move for summary judgment. Kavowras cross-moves for
partial summary judgment on his breach of duty of fair
representation claim and for leave to amend his pleadings. This
matter comes before me on remand from the Court of Appeals.
Originally, there was a motion to dismiss, which was granted,
but, according to the appellate court, one portion of Kavowras'
hybrid claim was timely and deserved reconsideration. For the
reasons set forth below, the defendants' motions are granted and
Kavowras' cross-motion is denied.
Kavowras has been employed by the Times from approximately 1968
to the present time and has been a member of the Union since
March 23, 1973. Kavowras was elected Chapel Chairman*fn1 in
1979, a position he held until 1988. Upon his resignation,
Kavowras bid on and, based on his seniority, was awarded a newspaper delivery route,
the "Publisher's Roll" or "Executive Bulldog," pursuant to a
Collective Bargaining Agreement ("CBA") between the Times and the
Union. This route entailed delivery of complimentary copies of
the "early edition" of the Times on weekdays and Saturdays to
high-ranking Times' employees and certain New York City
officials, including the Mayor. Delivery was made the evening
before newspapers were delivered to standard home delivery
customers. The specific terms and conditions of this position
were set out in a March 7, 1991 agreement known as a "Four Man
Board Award" ("FMBA").*fn2 Under Kavowras' FMBA, he worked
Tuesday through Friday beginning at 9:30 pm. He typically began
his delivery route around 10:00 pm or 10:30 pm from the Times'
West 43rd Street facility in Manhattan, using an automobile
instead of a delivery truck. Although Kavowras was generally able
to complete his route in 60 to 90 minutes, he was nevertheless
guaranteed two hours of overtime on each of those days. On
Saturdays, Kavowras received 6.5. hours of overtime for doing no
work at all. Instead, his only task was to appear at work and
sign in, after which he went home. Another employee was
responsible for delivery of the Sunday edition of the newspaper
on Saturday evenings. Kavowras held this delivery route position
until, because of illness, he took an extended disability leave
of absence from January 1997 to October 1997 and underwent
In June 1997, the Times implemented major production changes at
the West 43rd Street facility and opened its new production
facility in College Point, Queens. In September 1997, the Times
also changed the content of the newspapers in that it began to
print some sections in color and added an additional one to four
sections to the newspaper. As a consequence, the Times began two
production runs instead of one. This change in production meant
that completed newspapers were not available until 11:30 pm at
night. According to the Times, this later production end time,
coupled with the fact that the newspapers were produced at the
College Point facility, meant that the newspapers could not be
delivered to the Publisher's Roll recipients until after they had
already gone to sleep. As a consequence of these changes, there
was no discernable difference between this delivery and standard
home delivery service early in the morning and the Times
eliminated Kavowras' delivery route, with the exception of Sunday because, as noted, the papers were available substantially
earlier in the day. See Fullerton Decl. Ex. 6 ("All good things
must come to an end. With this edition, we end our Executive
Bulldog service. As of Monday we will be starting our presses too
late in the evening to allow for early delivery.");
Pepper-Doyle*fn3 Aff. ¶ 7 ("The Times decided to discontinue
the Publisher's Roll as a weekday delivery route effective on or
about August 2, 1997. . . ."). Kavowras, however, contends that
the route was subcontracted to a non-union delivery service,
Tri-State Newspaper Service, Inc., in violation of the CBA.
When Kavowras returned to work in October 1997 he was told that
the Publisher's Rolls delivery route had been eliminated.
According to Joseph Watson, the General Foreman of the Delivery
Department for the Times, there was no available route that would
permit Kavowras to deliver newspapers using an automobile as he
did previously. Instead, all drivers used a van or a truck and
were required to acquire a commercial driver's license, something
that Kavowras lacked. Kavowras therefore reported to the College
Point facility and had his choice of three "floor work"
assignments: (1) operating "palletizer" equipment to stack
newspaper bundles for shipping; (2) working as a "checker"; or
(3) driving a "hi-lo," i.e., a forklift, to move stacks of
newspapers. Kavowras chose to operate the "hi-lo" because of his
seniority and because he felt that was the only job he could
physically perform. In this new position, Kavowras had to work
approximately two to four hours a night, four nights a week,
although he sometimes had to work later. The defendants contend
that Kavowras continued to receive his 6.5 hours of guaranteed
overtime on Saturdays for doing no more than signing in,
something that Kavowras disputes.
Kavowras alleges that the hi-lo operator position was more
onerous and that he was required to perform activities that he,
as a partially disabled 69-year-old man,*fn4 could not do.
Kavowras further contends that he was no longer guaranteed the
overtime hours as provided in his FMBA. Accordingly, he requested
that the Union pursue a grievance on his behalf to restore the
Publisher's Rolls delivery route and the terms of his FMBA.
Sometime after Kavowras made this request and before the
grievance was arbitrated on January 18, 1998, Kavowras and his
wife, an attorney, together with the current Chapel Chairman,
Michael Santor, and Jay Sabin ("Sabin"), the then-Director of
Labor Relations for the Times, met with Bernard Plum ("Plum"), longtime outside labor and employment counsel for the Times, at
Plum's offices in an unsuccessful attempt to resolve Kavowras'
grievance. Kavowras avers that at this meeting, Plum told him,
"[W]hy don't you retire, you are old and sick. Why don't you just
retire." Kavowras Dep. at 149:22-23. The meeting concluded when
Plum "blew up" and told Kavowras several times, "I hate you," and
ordered him to get out of his office.*fn5 Id. at 149:7-12;
Thereafter, Kavowras' grievance was arbitrated on January 16,
1998 ("the 1998 Arbitration") before Martin Scheinman
("Arbitrator Scheinman"), the arbitrator selected by the Times
and the Union to hear all grievances arising under the CBA. At
the conclusion of the arbitration, the terms of a settlement were
put on the record,*fn6 but were never signed by the parties.
Even though all parties were present and there were no
objections, the plaintiff contends this was not a final
settlement of his grievance. Within a few weeks, Kavowras began
writing a series of letters to the Union in which he informed it
that, inter alia, he believed his grievance had not been
resolved and he continued to be dissatisfied with his employment
conditions and compensation.
Kavowras filed an unfair labor practice charge with the
National Labor Relations Board ("NLRB") on July 10, 1998, in
which he alleged that the Union failed to fairly represent him at
the 1998 Arbitration. Some six months later, the NLRB issued a
decision on February 25, 1999, in which it refused to file a
complaint on Kavowras' behalf because there was insufficient
evidence that the Union had violated the National Labor Relations
Both prior to and following the NLRB decision, Kavowras
continued his demands that the Union proceed with his grievance.
Finally, the Union's Executive Board ordered Union officials to
arrange for a new arbitration. The Times rejected the Union's
request for a "special arbitrator" as unnecessary and,
ultimately, a second arbitration was held before Arbitrator
Scheinman on February 16, 2000 ("the 2000 Arbitration"). Kavowras
did not want Arbitrator Scheinman to preside and asked the Union
to request his recusal. The Union attorney, Kenneth O'Connor
("O'Connor"), refused to do so because he had to work with
Arbitrator Scheinman in the future. Kavowras and his wife (who
was also present) asked Arbitrator Scheinman to recuse himself,
but he refused to do so.
The parties dispute both the purpose and outcome of the 2000
Arbitration. The Union asserts that its intent was to request
that Arbitrator Scheinman re-open the 1998 Arbitration and render
a decision on the merits because Kavowras had not knowingly and
voluntarily consented to the settlement at the 1998 Arbitration.
Arbitrator Scheinman denied this request because he believed,
based on his personal involvement in 1998 Arbitration, that
Kavowras' consent was indeed given knowingly and voluntarily.
Kavowras contends that the 1998 Arbitration agreement was never
finalized and was therefore a nullity. Kavowras further argues
that prior to the 2000 Arbitration he provided the Union with
evidence that his former job, the Publisher's Rolls delivery
route, had been subcontracted to Tri-State Newspaper Service,
Inc., in violation of the CBA, but that the Union did not pursue
this aspect of his grievance or follow-up on Arbitrator Scheinman
summarily refused to proceed with any arbitration, and told
Kavowras' wife during a break that Kavowras' FMBA was a "tit job"
that he was not entitled to in the first instance. B. Procedural History
Kavowras filed suit against the Times and the Union on July 31,
2000.*fn7 Thereafter, the defendants moved to dismiss
pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that
Kavowras' claims were time barred based on the six-month statute
of limitations of a hybrid claim under the LMRA. This Court held
that Kavowras' hybrid claim was indeed untimely because he did
not file suit within six months of his NLRB charge, which was the
latest on which his hybrid claim could have accrued, and declined
to exercise supplemental jurisdiction over Kavowras' pendent
state law claims. Kavowras v. New York Times Co., No. 00 Civ.
5666, 2000 WL 1672338 (S.D.N.Y. Nov. 6, 2000) ("Kavowras I").
Kavowras' appealed dismissal of his suit and the Second Circuit
affirmed in part and reversed in part and remanded. Kavowras v.
New York Times Co., 328 F.3d 50 (2d Cir. 2003) ("Kavowras
II"). The Second Circuit ruled that Kavowras had, in actuality,
alleged two distinct breaches of the Union's duty of fair
representation, the first of which occurred at the 1998
Arbitration and the second at the 2000 Arbitration. Id. at 54.
Because Kavowras filed suit within six months of the 2000
Arbitration, his claims on this score were timely, and the Second
Circuit vacated the portion of Kavowras I that pertained to the
2000 Arbitration and dismissed Kavowras' pendent state law
claims. Id. at 52, 57. As this brief review makes clear, only a