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May 16, 2005.

Paul Lazzaro, Plaintiff,
International Union, United Automobile, Aerospace & Agriculture Implement Workers of America (UAW), Local Union 1826; Oberdorfer LLC; Richard Oppedisano; Dave Windhausen; and Neil Falcone, Defendants.

The opinion of the court was delivered by: NEAL McCURN, Senior District Judge


I. Introduction

Plaintiff, Paul D. Lazzaro ("Lazzaro"), appearing pro se,*fn1 commenced this action in Supreme Court for the State of New York in Onondaga County on September 19, 2002 against Defendants, International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW), Local 1826 ("UAW Local 1826" or "the Union"); Oberdorfer, LLC ("Oberdorfer" or "the Company"), Richard Oppedisano, David Windhausen, and Neil Falcone. In his complaint ("the Compliant"), Lazzaro alleges, among other things, the violation of an agreement between the Union and Oberdorfer. Defendants removed the action to this court pursuant to section 301(a) of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), which provides that federal court has exclusive jurisdiction over such claims. All parties recently executed a Stipulation of Dismissal, removing defendants Oberdorfer, Richard Oppedisano, David Windhausen, and Neil Falcone from the action. Therefore, UAW Local 1826 is the only remaining defendant.

  Presently before the court is a motion for summary judgment by the Union against Lazzaro.*fn2 In the Complaint, Lazzaro alleges three causes of action, to wit, breach of contract, breach of the duty of fair representation ("BFR claim"), and conspiracy.

  Oral argument was heard regarding the present motion on January 10, 2005 in Syracuse, New York. At that time, upon consent of counsel, the court dismissed Lazzaro's breach of contract and conspiracy claims. The court further granted summary judgment on Lazzaro's BFR claim for failure to exhaust remedies. Following is the court's reasoning therefor.

  II. Factual Background

  Lazzaro has been an employee of Oberdorfer or its predecessors ("the Company") since 1978. During that time he has held several Union offices, including the office of Chief Committeeman, which he held for nine years until 2002, at which time he did not seek reelection. In September 1997 the Company appointed Lazzaro to the position of "facilitator", which included an increase in his hourly wage from $13.25 to $19.15. In 1999, when the Company was purchased by new owners, Lazzaro resumed his former position of "core finisher", although his hourly rate remained unchanged. At some point thereafter, Lazzaro's position changed again to that of "core maker".

  According to Lazzaro, in 1999 the Company's new purchasers promised the Union that under their ownership, no union employee would be forced to take a pay reduction. That agreement came about as an oral promise and was never reduced to writing.

  In 2002, the Union negotiated a new contract with the Company. During negotiations, the Company agreed to equalize the wages of several employees, including Lazzaro, whose hourly rates were not consistent with the work they performed. As a result of the new contract, executed by the Union and the Company in July 2002, and ratified by the Union membership, Lazzaro's pay was reduced from $20.85 to $12.81 per hour, which is the top hourly rate for a "core maker."

  Although at the ratification meeting with the Union membership, Lazzaro told Union President Richard Oppedisano, "I will see you in court[,]" Aff. of Paul D. Lazzaro, Dec. 1, 2004, at ¶ 36, Dkt. No. 44, Lazzaro did not challenge the ratification of the contract containing the wage equalization agreement before the Union membership, nor did he undertake any appeal of same to the UAW under the International Union's constitution ("the Union Constitution"). According to Lazzaro, no one from the Union ever told him that he could appeal a negotiated contract settlement to the International Union. See id. Lazzaro affirms, based upon his experience as a Union representative, that he understands the appeals process to be limited to matters surrounding grievance denials, and that it is not available to challenge settlements reached as a result of collective bargaining. See id.

  On July 30, 2002, Lazzaro filed a grievance with the Company regarding his reduced wage. The grievance was signed by a Union steward. The Company thereafter denied the grievance, and on August 6, 2003, after reviewing same, the Union determined the grievance was without merit and "dropped" it. Lazzaro could have appealed the Union's decision to drop his grievance, first to the membership and then to the International Union, but he did not do so. Had Lazzaro appealed and prevailed, his grievance could have been reinstated and arbitrated. III. Discussion

  A. Summary Judgment Standard

  A motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82 (2d Cir. 2004). "[I]n assessing the record to determine whether there is a genuine issue as to a material fact, the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought[.]" See Security Ins., 391 F.3d at 83, citing Anderson V. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505 (1986). While the initial burden of demonstrating the absence of a genuine issue of material fact falls upon the moving party, once that burden is met, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial," see Koch v. Town of Brattleboro, Vermont, 287 F.3d 162, 165 (2d Cir. ...

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