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Linden v. District Council 1707-AFSCME

July 7, 2010

MICHAEL LINDEN, PLAINTIFF,
v.
DISTRICT COUNCIL 1707-AFSCME, AFL-CIO, THE SHARING COMMUNITY, INC., PAUL ZONDERMAN, NATIONAL LABOR RELATIONS BOARD, AND NATIONAL LABOR RELATIONS BOARD OFFICE OF GENERAL COUNSEL, DEFENDANTS.



The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge.

OPINION & ORDER

Pro se plaintiff Michael Linden commenced a petition in New York State Supreme Court, New York County, against his former union, District Counsel 1707-AFSCME, AFL-CIO ("District Council" or "the Union"); his former employer, The Sharing Community, Inc.; arbitrator Paul Zonderman; and the National Labor Relations Board ("NLRB") and NLRB Office of General Counsel, alleging he was wrongfully terminated. Specifically, he seeks to vacate an arbitration award that upheld the termination of his employment and to reverse the NLRB's dismissal of his unfair labor practice charge. The NLRB removed this case to federal court, and all defendants subsequently moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction and Fed. R. Civ. P. 12(b)(6) for failure to state a claim for relief. For the reasons set forth below, the motions to dismiss are granted.

I. BACKGROUND

A. Linden's Employment Relationship

On June 8, 2006, The Sharing Community terminated Linden's employment with it for dishonesty and falsification of work records. During his employment, Linden belonged to the District Council. That Union and The Sharing Community were both parties to a collective bargaining agreement. (Collective Bargaining Agreement dated June 4, 1997 ("CBA"), Ex. A to District Council's Mot. to Dismiss.)The CBA sets forth specific procedures for an employee to file a grievance against his employer. That grievance procedure may culminate in "final and binding" arbitration.(Id. at XI.)

B. Arbitration

Following Linden's termination, the District Council represented Linden in the grievance process. On January 31, 2008, Linden signed a settlement agreement with The Sharing Community, but he subsequently successfully revoked his acceptance of that agreement. (Linden Aff. in Opp. to The Sharing Community's Mot. to Dismiss dated May 19, 2010, Statement of Facts at 1 ("Linden Aff.").) As a result, the arbitration went forward, and Paul Zonderman, the arbitrator, conducted hearings on March 2 and July 2, 2009. (Linden Aff.; Opinion and Award in the Arbitration Between District Council 1707, L. 215, AFSCME and The Sharing Community, Inc., Grievant Michael Linden ("Arbitration Award"), Ex. D to Pl.'s Pet. dated Mar. 5, 2010.) After the submission of legal briefs, on September 16, 2009, Zonderman issued his opinion. The arbitrator found that Linden's discharge was with "just cause," and he therefore denied Linden's grievance. (Id.)

C. NLRB Action

One week before Zonderman issued his opinion, Linden filed an unfair labor practice charge with the NLRB's regional office in New York, alleging that the District Council had failed to represent him fairly in the arbitration process. (See Letter from NLRB Region 2 to Michael Linden dated Nov. 9, 2009, Ex. A to Pl.'s Pet. dated Mar. 5, 2010.) The NLRB's Regional Director investigated that charge and, after doing so, dismissed Linden's charge on November 9, 2009. (Id.) On November 14, 2009, Linden filed an appeal from the Regional Director's decision with the NLRB General Counsel, who two months later affirmed the dismissal and declined to issue a complaint against the Union for breach of its duty of fair representation. (Letter from NLRB Office of General Counsel to Michael Linden dated Jan. 6, 2010, Ex. A to Pl.'s Pet. dated March 5, 2010.)

D. This Action

One month later, Linden commenced a petition in New York State Supreme Court seeking to vacate the Arbitration Award on the grounds that the decision was against the weight of the evidence and untimely, and that the Union did not fairly represent him. As noted above, the NLRB properly removed the petition to this Court on the ground that the NLRB is an agency of the United States. See 28 U.S.C. § 1442(a)(1).

II. DISCUSSION

A. Motion to Dismiss Standard

On a Rule 12(b)(6) motion to dismiss a pleading for failure to state a claim, a court assumes the truth of all facts asserted in the complaint and draws all reasonable inferences from those facts in favor of the plaintiff. See Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 154 (2d Cir. 2006); S.E.C. v. Lyon, 529 F. Supp. 2d 444, 449 (S.D.N.Y. 2007). Where, as here, a plaintiff proceeds pro se, the court has a special obligation to construe the pleadings liberally, reading them to raise "the ...


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