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Rosario Scibilia v. Verizon Communications

March 29, 2011


The opinion of the court was delivered by: Mauskopf, United States District Judge.


Plaintiff Rosario Scibilia brings this action against Defendants Verizon Communications, Inc., and Empire City Subway Company, Ltd., a subsidiary of Verizon Communications (collectively, "Verizon" or "Defendants"), seeking compensation for overtime and night hours, punitive damages, and injunctive relief. (Notice of Removal ("Compl.") (Doc. No. 1) ¶¶ I--VI.)*fn1

Defendants have moved for summary judgment on all claims (Defs.' Mot. for Summ. J. (Doc. No. 24) 1.) Both parties also seek sanctions under Rule 11. (Doc. Nos. 37 and 42.)

As explained in greater detail below, Plaintiff's claims are based on alleged violations of a collective bargaining agreement. Breach of the duty of fair representation is a necessary element of Plaintiff's claims. However Plaintiff has failed to raise a genuine issue of material fact concerning any such breach. Therefore, Defendants' motion is granted, and Plaintiff's claim is dismissed in its entirety. In addition, in the exercise of its discretion, the Court will not impose sanctions on any party.


The following facts are drawn from (i) Plaintiff's Complaint, (ii) the parties' Local Rule 56.1 statements and the exhibits annexed thereto, and (iii) declarations, affidavits, and exhibits submitted in support of and opposition to Defendants' motion for summary judgment. The facts are either undisputed or set forth in the light most favorable to Plaintiff.

At all relevant times, Plaintiff was employed as a construction equipment operator with Empire City, a company specializing in subsurface engineering and construction services. (Defs.' Rule 56.1 Statement (Doc. No. 28) ¶¶ 1--2.) Plaintiff was a member of the Communication Workers of America Union (the "Union"). (Id. at ¶ 3.) Verizon and the Union were parties to a collective bargaining agreement (the "CBA"). (Id. at ¶ 4.) The CBA and the local work rules of the Defendants govern the terms and conditions of Plaintiff's employment. (Id.; Compl. ¶ 2.) The Union is the sole and exclusive representative of Plaintiff under the CBA. (Defs.' Rule 56.1 Stmt. ¶6.)

On March 26, 2007, Plaintiff sent two "Statement of Occurrence" forms to the Union. (Compl. 13 (annexed form NLRB-508).) The Union provides these forms, and employees submit them to initiate grievance procedures under the CBA. (See Pl.'s Aff. in Opp'n to Defs.' Mot. for Summ. J. (Doc. No. 30) ¶¶ 8--9.) On one form, Plaintiff complained of his rotation off the night shift against his wishes and without proper notice, in violation of the CBA. (Pl.'s Mem. in Opp'n to Defs.' Mot. for Summ. J. (Doc. No. 31) Ex. A, at 4.) On the other form, Plaintiff complained that Empire City incorrectly charged him with overtime between March 2004 and March 2007, thereby incorrectly reduced his eligibility for overtime under the CBA during that period. (Id. at 5--6.)

On May 18, 2007, after a telephone conversation between Plaintiff and a Union representative, Plaintiff faxed to the Union copies of the Statements he had sent in March 2007. (Compl. 13 (annexed form NLRB-508).) On July 17, 2007, believing that the Union had ignored his grievances, Plaintiff filed a "charge" of Union non-responsiveness with the National Labor Relations Board (NLRB), which charge his attorney supplemented with a letter. (Id.; Pl.'s Mem. in Opp'n, Exs. F--G.) A "charge" is a formal allegation that an unfair labor practice has occurred or is occurring, and initiates a review of the allegation by the NLRB. See Golder et al., Labor and Employment Law: Compliance and Litigation § 2:6 (3d ed. 2010).

Around July 30, 2007, the NLRB asked the Union about Plaintiff's complaints. On July 30, 2007, Chief Union Steward Richard Meltz responded by facsimile that Plaintiff's two grievances were "sat" on June 7, 2007. (Reply in Supp. of Defs.' Mot. for Summ. J., Martin W. Aron's Aff. ("Aron Aff.") (Doc. No. 35) Ex. A, at 2.) To "sit" a grievance means to review the complaint informally with a management spokesperson. (Pl.'s Mem. in Opp'n Ex. D, at 2 (CBA Article 11.02).) Meltz reported that the grievances had been denied, but would be taken to the "second step," that is, appealed between higher-level Verizon and Union officials. (Aron Aff. Ex. A, at 2; Pl.'s Mem. in Opp'n Ex. D, at 2.) On September 25, 2007, Plaintiff was denied relief at that second step, and the Union decided not to take any further action regarding the grievances. (Aron Aff. Ex. B, at 2.) On September 28, 2007, Meltz reported the outcome of the appeals to the NLRB, and undertook to report the outcome to Plaintiff. (Id.)

On October 1, 2007, at Plaintiff's request, the NLRB agreed to withdraw Plaintiff's charge that the Union never presented his grievance, contingent on the Union notifying him of any determinations reached. (Aron Aff. Ex. C, at 2.) On October 30, 2007, Plaintiff's counsel acknowledged in a letter to Verizon that Plaintiff was "told by his union rep that the second step [of his grievances] got nowhere." (Reply in Supp. of Defs.' Mot. for Summ. J., Anthony Errico's Aff. ("Errico Aff. II") (Doc. No. 36) Ex. A, at 2, Feb. 22, 2010.)

On June 9, 2008, the Union presented two more grievances to Verizon on behalf of Plaintiff. One claim was identical to Plaintiff's 2007 night shift rotation grievance. (Defs.' Rule 56.1 Stmt. ¶ 50.) The second claim differed from Plaintiff's 2007 "overtime" grievance, this time alleging that Verizon improperly charged overtime during Plaintiff's extended absence from November 4, 2007 through March 3, 2008. (Defs.' Rule 56.1 Stmt. ¶¶ 23--24.) On June 20, 2008, the Union and Verizon mutually resolved both grievances at the first step of the grievance process. (Defs.' Rule 56.1 Stmt. ¶¶ 25, 52; see Aff. in Supp. of Defs.' Mot. for Summ. J., Anthony Errico's Aff. ("Errico Aff. I") (Doc. No. 26) Exs. E, H, Dec. 21, 2009.) Plaintiff again was denied relief. (See Errico Aff. I Exs. E, H.)

Plaintiff initially filed this action in New York Supreme Court, Queens County, on September 15, 2008. On October 15, 2008, Defendants removed the action to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. (Compl. 2.) Though styled as a breach of contract, all of Plaintiff's claims allege violations of the CBA between the Union and Verizon. Therefore, Section 301 of the federal Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), and federal common law govern this action, New York contract law is completely preempted, and this Court has original jurisdiction under 28 U.S.C. § 1331. See Hernandez v. Conriv Realty Assocs., 116 F.3d 35, 38 (2d Cir. 1997) ("Under [S]section 301, state law based claims for '[s]uits for violation of contracts between an employer and a labor ...

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