United States District Court, E.D. New York
July 7, 2005.
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"). The underlying allegations have been
summarized by the Court in its July 14, 2004 Memorandum of Decision and Order (the "Order") and
familiarity with these facts is assumed. See Tand v. Solomon
Schechter Day School of Nassau County, 324 F. Supp. 2d 379
In the Order, the Court granted a motion by the Defendant to
dismiss this action on the basis that the Plaintiff failed to
exhaust the grievance and arbitration requirements that are
mandated by the collective bargaining agreement that governed
Tand's employment (the "CBA"). Id. at 386. In particular the
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
Id. at 385. The Court also held that because the former
employer, Solomon Schechter was the only defendant, and that
there were no allegations regarding any wrongdoing by the United
Teachers Association of Solomon Schechter Day School of Nassau
County, NEA/NY [the "Teachers Association"], this case was most
properly characterized as a "pure Section 301 [of the Labor
Relations Management Act]" action. Id. at * 383. Based on that
determination, the Court applied a six-year statute of
limitations and determined that the action was timely filed.
Id. at 384. On August 17, 2004, the Plaintiff filed an Amended Complaint.
The Amended Complaint contains two additional allegations
relating to her attempts to exhaust the grievance and arbitration
¶ 11. After the non reappointment notice, Tand
contacted Cindy Willans, a teacher at the [Solomon
Schechter] and Teachers Association representative in
order to discuss filing a Grievance relating to her
firing as under Article VI(b)(4) the Teachers
Association was granted "Exclusive Organization
representation for all grievants." Ms. Willans told
Tand that the Teachers Association would not
represent Tand in the Grievance proceedings because
Tand was not a member of the Association and that in
any extent, any attempt at a Grievance under these
facts would be futile. Pursuant to this instruction
Tand was unable to file a formal grievance pursuant
to the CBA.
¶ 12. By attempting to elicit help from the Union,
Tand exhausted the remedies provided by the CBA. The
only alternative for Tand was to file a civil action.
The Defendant now moves to dismiss the Amended Complaint on the
grounds that because the amended complaint alleges that the union
breached its duty of fair representation, this action is not a
pure section 301 action, as the Court had previously determined,
but rather a "hybrid claim" that is subject to a 6 month statute
of limitations. The Court agrees.
A hybrid action is one in which contains allegations against
both the employer and the union. See DelCostello v. International Brotherhood of
Teamsters, 462 U.S. 151, 164, 103 S. Ct. 1107, 76 L. Ed. 2d 476
(1966). Even though the Teachers' Association is not named as a
defendant in this action, because the amended complaint alleges
that its wrongdoing prevented Tand from filing a formal grievance
pursuant to the CBA, this action is most properly characterized
as a hybrid action. See Id., 462 U.S. 151, 164-165 ("[H]ybrid
claims may be found in cases where the union is not named as a
defendant but where pleadings allege wrongdoing on the union's
The Plaintiff's argument that this case is a "simple breach of
contract action" in which there was a "repudiation" of the CBA
and is thus subject to a six year statute of limitations is
without merit. As explained by the Order, where, as here, the
Court must interpret the terms of the CBA in order to determine
whether there was a breach of the CBA, Section 301 preempts state
law claims "whether such questions arise in the context of a suit
for breach of contract or in a suit alleging liability in tort."
Vera v. Saks & Co., 335 F.3d 109, 114 (2d Cir. 2003). Such is
the case "[e]ven where `the plaintiff's well-pleaded complaint
alleges on its face only state claims, and no one argues that
diversity of citizenship exists between the parties. . . .'"
Meier v. Premier Wine & Spirits, Inc., et al., No. 04 Civ.
4085, 2005 WL 1253959, at * 6 (E.D.N.Y. May 27, 2005) (quoting
Vera, 335 F.3d at 114).
In addition, with respect to Plaintiff's claims that there has
been a repudiation of the CBA, the Court notes that "[t]he party seeking judicial
review must do more than merely assert that the other party to
its contract has repudiated the agreement. Even where a party
ceases to perform its obligations under a contract and is
unjustified in doing so such nonperformance does not per se
amount to a repudiation." Fraternal Order of Police, Nat. Labor
Council, USPS, 988 F. Supp. 701, 711 (S.D.N.Y. 1997). In that
regard, the allegations contained in the amended complaint, even
assuming they are true, do not satisfy the high standard for
establishing repudiation. See id. ("[I]n light of the strong
governmental interest in promoting the enforcement of collective
bargaining contracts, the standard for establishing repudiation
is very high." (internal citation omitted)).
Applying the six month statute of limitations, this action was
filed on October 27, 2003, more than 13 months after the alleged
wrongful termination, and is time barred.
Accordingly, it is hereby
ORDERED that the motion to dismiss by the defendant is
GRANTED; and it is further
ORDERED, that the amended complaint is dismissed in its
entirety with prejudice; and it is further
ORDERED, that the Clerk of the Court is directed to close
this case. SO ORDERED.
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