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KAVOWRAS v. NEW YORK TIMES COMPANY

July 23, 2004.

THEODORE KAVOWRAS, Plaintiff,
v.
NEW YORK TIMES COMPANY and NEWSPAPER AND MAIL DELIVERERS' UNION, Defendants.



The opinion of the court was delivered by: HAROLD BAER, JR., District Judge

OPINION & ORDER

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.

I. BACKGROUND

  A. Factual Background

  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 surgery.

  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; 146:6-16.

  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 Act.

  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 small ...


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