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Jan Welenc v. Pal Environmental Corp.

March 21, 2011


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




DOC #:


Pro se Plaintiff Jan Welenc ("Welenc") sues his former employer, PAL Environmental Corp. ("PAL"), and his union, Asbestos, Lead and Hazardous Waste Laborers' Local 78 ("Local 78") (together, "Defendants"), pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"); the National Labor Relations Act ("NLRA"); and the Labor Management Relations Act ("LMRA"). Welenc alleges that PAL and Local 78 conspired to terminate his employment as an asbestos remover because he objected to certain items in the collective bargaining agreement ("CBA") between Local 78 and the Environmental Contractors Association, Inc. ("ECA"). Welenc also alleges that Local 78 harmed his efforts to find subsequent employment following his termination.

PAL and Local 78 move to dismiss the Second Amended Complaint ("SAC"), pursuant to Federal Rule of Civil Procedure 12(b)(6). On February 7, 2011, Magistrate Judge Maas filed a Report and Recommendation ("R&R"), recommending that the Court grant the motions. Welenc timely filed objections on March 11, 2011. Having reviewed Magistrate Judge Maas's R&R and Welenc's objections, the Court adopts Magistrate Judge Maas's Report and Recommendation in its entirety. As a result, Defendants' motions are GRANTED.


I. Facts and Procedural History

In June 2007, Welenc began working for PAL. His specific task involved removing asbestos at 270 Park Avenue in Manhattan. In August 2007, during a monthly meeting, Welenc voiced his disagreement with certain items in a recently-negotiated CBA between Local 78 and the ECA. Specifically, Welenc disagreed with a provision dealing with overtime and a ten-hour working day. Welenc organized a protest and sent the President of the Laborers' International Union of North America ("LIUNA") a petition signed by five hundred members of Local 78 who agreed with his opposition to the CBA. On September 17, 2007, Welenc was informed by his supervisor at 270 Park Avenue that the project would go on a temporary hiatus. Three days later, Welenc began working for PAL on another asbestos removal project in Jamaica, Queens. During another Local 78 monthly meeting on October 19, 2007, Local 78's business manager "furiously condemned" Welenc's opposition to the ten-hour workday provision. Subsequently, PAL's owner, Sal DiLorenzo, terminated Welenc from his job at the Jamaica location.

On October 22, 2007, Welenc returned to work for PAL at 270 Park Avenue. On October 28, 2007, PAL terminated Welenc yet again. According to Welenc, DiLorenzo spoke to four supervisors and ordered each of them to "see to it that [Welenc] no longer work[s] at PAL." Welenc contends that DiLorenzo's decision to fire him was the result of "instigation or pressure by Local 78" arising out of his opposition to the CBA.

On November 16, 2007, Local 78 placed Welenc on its "out of work list" ("OWL"). On February 29, 2008 Welenc learned that his name had been removed from the OWL. Local 78 claimed that, between January 9 and February 15, 2008, it had left four messages for Welenc informing him of job opportunities and that it removed his name from the OWL when he failed to respond. Welenc denies receiving the messages, and contends that Local 78 removed his name from the OWL in retaliation for his vocal opposition to the CBA. In April 2008, Local 78's president declined to restore Welenc's name to the OWL because Welenc refused to complete an I-9 form affirming that he was eligible to work in the United States. Local 78's president never asked other union members to complete the form, even though seventy percent are illegal immigrants. Welenc is a United States citizen.

In August 2008, Welenc obtained a job with the "ABC firm" ("ABC") removing asbestos from a school in Astoria, Queens. He was terminated the next day, however, because, according to ABC, there were already sufficient workers assigned to the job. Welenc claims that ABC replaced him with another worker and an ABC supervisor later confirmed that he had received instruction from ABC that Welenc "cannot be employed." As a result, Welenc alleges that Local 78 caused his termination.

Welenc filed a complaint against PAL and Local 78 with the regional office of the National Labor Relations Board ("NLRB"). On March 31, 2008, the NLRB dismissed Welenc's complaint. Welenc then appealed the dismissal in a letter dated ...

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