The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This matter involves a collective bargaining agreement and allegations of a breach of the duty of fair representation on the part of the International Union of Electronic, Electrical, Salaried, Machine & Furniture Workers, AFL-CIO, and its Local 509 (IUE-CWA, Local 509) (collectively hereinafter referred to as "Union"). It is before the Court on Defendants' motion for summary judgment (Docket No. 39). For the reasons stated below, Defendants' application is granted.
This case is joined with 29 others in which Plaintiffs allege similar wrongful conduct on the part of Defendants. Plaintiff's counsel states in her memorandum of law that,
In total, the undersigned plaintiffs' counsel filed thirty (30) substantially [similar], though not identical, Complaints against the Union. The plaintiffs fall into two categories: (1) those, such as Mr. Zagari, who were actively employed by Valeo and were members of the Union at the time of [sic] the September, 2005 ratification vote took place; and (2) Those, such as plaintiff Alonci, who separated their employment within a short time prior to the September, 2005 amendment pursuant to the terms of the May, 2002 amendment to the Collective Bargaining Agreement. (Pl.s' Mem. of Law (Docket No. 52) at 2.) One plaintiff, Charles Kaiser, voluntarily withdrew his action, leaving the current 29 plaintiffs. (Id.) The Court previously addressed Defendants' motion to dismiss and permitted Plaintiffs to amend their complaint. Defendants' second motion to dismiss the amended complaint was unsuccessful.
The salient facts are not in dispute. The lead plaintiff*fn1 in the Alonci group, Rosetta Alonci ("Alonci"), was employed by Valeo Corporation ("Valeo") as an assembly worker, commencing on or about November 28, 1988, and ending on or about June 6, 2005. During her employment with Valeo, she was a member of the Union. On or about July 20, 2000, the Union and Valeo negotiated the terms of a collective bargaining agreement*fn2 which was ratified and deemed to go into effect on August 14, 2000, and expire on July 31, 2008. (Joseph Giffi ("Giffi") Aff. (Docket No. 46) ¶ 23.) Shortly after signing the contract, Valeo wanted to make major changes to reduce the wage scale. The Union refused, and, on December 14, 2001, Valeo filed for bankruptcy protection. (Id. ¶ 27--28.) Subsequent to Valeo's bankruptcy filing, the Union reached what it termed a "concessions contract." (Id. ¶ 34.) This concessions contract contained a lay off schedule covering the years 2002 through 2005 and limited the number of employees Valeo could lay off each year. Further, it added two more retirement acceleration programs ("RAP") in addition to the RAP negotiated in the 2000 contract. (Id. ¶¶ 35--36.) As described by Giffi, formerly President, Financial Secretary, and Benefits Representative for defendant Local 509 and then as Director of Region 3 of the defendant International Union of Electrical Workers - Communications Workers of America:
There was now a retirement incentive which provided cash incentive to those people already eligible for a full pension and a voluntary attrition program (VAP) which provided $75,000.00 to any employee who, although not pension eligible, would simply agree to be laid off out of seniority. These individuals would of course be entitled to a deferred vested pension when they reach retirement age. (Giffi Aff. ¶ 36.) The Union provided its members with a highlight booklet to explain the changes contained in the 2002 agreement and sent it to every Union member prior to ratification of the 2002 agreement. (Id. ¶ 39.)
In July 2005, Valeo announced it was shutting down its Rochester, New York plant by July 31, 2008, the end of the collective bargaining agreement. (Id. ¶ 46.) Giffi, who was by then serving the International Union, worked with David Roehrig ("Roehrig"), his replacement as President of the Local Union, to negotiate with Valeo regarding the plant closing. (Id. ¶ 47.) According to Giffi, he and Roehrig at first attempted to keep the plant open through concessions, and they asked to see detailed financial records of the corporation. (Id. ¶ 48--49.)
In the amended complaint,*fn3 Plaintiffs allege that between January and March 2005, the Union informed Alonci and other employees that they should use voluntary attrition programs, because if enough people did not sign up, there would be involuntary terminations. (Am. Compl. ¶ 17.) Plaintiffs also allege that a number of employees, including Alonci, were repeatedly told that the likelihood of layoff was high and that they should "take the attrition program (the 2002) and that it was the best thing going." (Pl.s' Aff. (Docket No. 50-14) ¶ 19.) Plaintiffs cite to Roehrig's deposition testimony in their memorandum of law to support their contention that, "[t]he Union, despite its denials, was clearly in discussions of some sort with the company dating back to at least early March, 2005 regarding possible future incentive plans for attrition" and "was aware of the strong possibility of plant closure." (Pl.s' Mem. of Law at 5--6.)
On the issue of layoffs, Roehrig testified as follows:
Q: I'd [sic] ask you to take a look at the complaint please.
Q: Keep it in front of you because I'm going to be asking you some questions. Could you please turn to page 4, paragraph seventeen?
The first sentence of the paragraph says, "In or about the early spring months of 2005 employees, including plaintiff, were informed by the union that voluntary attrition programs should be used because if enough people didn't sign up there would be involuntary terminations."
Is that statement factual to your knowledge? A. Well, there was definitely an attrition program in place with numbers provided by the company and if not enough volunteered there wouldn't be what they call a TAP, which is termination program as opposed to VAP which is voluntary. Yes, that's the case.
Q: The plaintiffs say these representations were made by you and Mark Moochler.*fn4 I'm asking in respect to you if you ever told any of the plaintiffs in this action that they should sign up because they could be laid off?
A: I've never told anyone they should or shouldn't.
Q: Did you have any communications with any of these plaintiffs during this [sic] January, 2005 to March, 2005 in regard to the voluntary attrition program?
A: Yes I walked the plant on a regular basis, explained the program, explained how many people have signed up, trying to make sure everyone was well-informed.
Q: During those discussions did you ever tell anyone where they were on the lay-off list?
A: Yes. I published it in leaflets also.
Q: For what purpose did you do that?
A: So people could make in education-educated decision on whether they should or shouldn't sign up based on their situation.
Q: By educated decision, do you mean fully informed?
A: Yes. They had to be fully informed of the sign-up procedure, sure..
Q: [W]hy did you tell them where they were on the list?
A: That's part of the sign-up procedure, the total numbers. I'm referring to the sign-up procedure as the number for attrition and how many have signed up how many would possibly be tapped. Yeah, I did that..
Q: So we have determined that you told them about how many people have signed up, right?
Q: You told them how many people ...