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Costa v. Union Local 306

September 25, 2009


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge



Pro se Plaintiff George A. da Costa ("Mr. da Costa")*fn1 brings this action against Defendants Union Local 306, IATSE ("Local 306") and The Shubert Organization ("Shubert") pursuant to Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185; the National Labor Relations Act ("NLRA"), 29 U.S.C. § 151 et seq.; and Sections 101 and 609 of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. §§ 411, 529. Mr. da Costa, who was once a member of Local 306 and an employee of Shubert, claims that Local 306 improperly caused Shubert to suspend his employment under the pretense that he failed to pay union dues.

Defendants move to dismiss the Second Amended Complaint ("SAC") under Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, for summary judgment under Rule 56. On August 12, 2009, Magistrate Judge Frank Maas issued a Report and Recommendation ("R&R") recommending that the Court grant the Defendants' motions to dismiss. The Court has reviewed the R&R, Mr. da Costa's timely objections, and Local 306's response to the objections. For the reasons that follow, the Court adopts Magistrate Judge Maas' findings and recommendations, and the Defendants' motions to dismiss are granted.


I. Facts*fn2

Mr. da Costa was employed by Shubert as an usher at the Ambassador Theater from 1995 until June 20, 2003. Local 306 was the collective bargaining agent for ushers and other theater workers, and was party to a collective bargaining agreement ("CBA") with the League of American Theaters and Producers, Inc. ("League"), of which Shubert was a member.

The CBA contained a union security clause, which allowed Local 306 to seek the dismissal of union members for non-payment of dues. Between June and November of 2002, Local 306 sent Mr. da Costa at least three letters advising him that he was in arrears in paying his union dues and that the union would seek his dismissal as an employee of Shubert, if he did not pay. From December, 2002 though April, 2003, Mr. da Costa made several small payments to Local 306 pursuant to two different payment plans. When Mr. da Costa ceased making payments against his delinquency, Local 306 sent him a "Final Notice" on June 12, 2003, stating that it would notify Shubert of his failure to abide by the CBA and request his dismissal. On June 20, 2003, Mr. da Costa was suspended as an employee of Shubert and was barred from working as an usher. After his suspension, Mr. da Costa continued to communicate with the Defendants, and on August 20, 2003, Local 306 sent him a letter confirming that he owed $303.35 in unpaid dues.

In March, 2003, prior to the suspension, the American Federation of Musicians declared a strike against the League. As a result of the strike, performances at the Ambassador and other League theaters were cancelled for March 7, 8, 9 and 10. Because the League only paid Local 306 employees for one of the four missed performances, Local 306 filed a grievance against the League contending that its failure to pay Local 306 members for the other three days of the strike violated the CBA. The grievance was arbitrated, and a hearing was held on March 8, 2004. On June 30, 2004, the arbitrator issued a sixteen-page Opinion and Award finding that the League's failure to pay Local 306 members for the missed performances did not violate the CBA.

Alleging that Local 306 violated Sections 8(b)(1)(A) and (b)(2) of the NLRA, 29 U.S.C. §§ 158(b)(1)(A), (b)(2), Mr. da Costa filed a charge with the National Labor Relations Board ("NLRB") on October 23, 2003. In his charge, and in subsequent letters to the NLRB, Mr. da Costa asserted that Local 306 had failed to provide him with statements setting forth the correct amount of the dues he owed and that Local 306 caused his termination because he voiced his dissent in connection with the musician strike -- not because of any unpaid dues. Mr. da Costa also asserted that Local 306 had failed to adequately represent its members because it did not take legal action after the League refused to pay ushers for all four days of the strike.

In a letter dated February 10, 2004, the NLRB informed Mr. da Costa that Local 306 had proposed a settlement whereby Local 306 would waive his debt and inform Shubert that it did not object to his returning to work. Mr. da Costa declined to settle and on February 13, 2004 advised the NLRB that he intended to pursue his claims in court. After conducting an investigation, the NLRB determined that Local 306 acted lawfully in requesting Mr. da Costa's dismissal and did not breach its duty of fair representation in connection with the musician strike. On February 25, 2004, the NLRB sent Mr. da Costa a letter informing him that his charge was dismissed. On May 13, 2004, the NLRB Office of General Counsel denied Mr. da Costa's appeal. After sending several letters to the NLRB requesting the production of Local 306 documents pertaining to the amount of dues he owed, in 2007 Mr. da Costa filed new charges with the NLRB, which were also dismissed.

Mr. da Costa also filed a complaint in the New York County Supreme Court on June 1, 2004 against Local 306 and Shubert seeking $500,000 in damages. Mr. da Costa alleged that: the debt relied upon by Local 306 in seeking his discharge was unsubstantiated and possibly fabricated; Local 306 punished him for complaining about its handling of the musician strike; Shubert acted improperly in acquiescing in Local 306's request that he be discharged because the request was based on false information; and Shubert breached the CBA by failing to pay him for all the performances missed during the musician strike. On October 22, 2004, Justice Rosalyn Richter entered two separate minute orders dismissing Mr. da Costa's complaint against Local 306 and Shubert on preemption, statute of limitations and other grounds.

On May 31, 2007, Mr. da Costa filed charges with Equal Employment Opportunity Commission ("EEOC") alleging that he had been the victim of unlawful retaliation. Mr. da Costa repeated the allegations he had ...

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