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Gina Defrancesco v. Anthony Bottalico As General Chairman

December 16, 2011



This case arises out of plaintiff Gina DeFrancesco's repeated refusal to use an electronic Ticket Issuing Machine ("TIM"), in violation of Metro-North Railroad's ("Metro-North") direction to do so, and her subsequent termination from Metro-North. DeFrancesco claims that Metro-North breached the collective bargaining agreement ("CBA") between it and the Association of Railroad Employees ("ACRE"), and that ACRE breached its duty of fair representation. On the latter claim, DeFrancesco sued ACRE and Anthony Bottalico of ACRE. DeFrancesco also brings state law claims for intentional infliction of emotional distress and tortuous interference with contract.

Metro-North moves for judgment on the pleadings pursuant to Rule 12(c). Bottalico and ACRE have filed a separate motion for judgment on the pleadings. The court grants both motions.


The following facts are assumed to be true for purposes of this memorandum and are taken solely from DeFrancesco's amended complaint ("the complaint") and items incorporated into DeFrancesco's complaint by reference.

DeFrancesco was an Assistant Conductor employed by Metro-North and is a member of ACRE. ACRE is a union that represents conductors employed by Metro-North. Anthony Bottalico is the General Chairman of ACRE. ACRE and Metro-North are parties to a collective bargaining agreement, which governs the discipline and grievance process for unionmembers employed by Metro-North. DeFrancesco was disciplined by Metro-North on October 21, 2009 and November 16, 2009, and discharged on November 16, 2009.

The CBA Discipline and Grievance Process

Pursuant to the CBA, no employee is to be reprimanded, disciplined, suspended or dismissed until a Metro-North officer conducts a fair and impartial investigation. The CBA does not refer to an investigation in the ordinary sense of the word, but rather, a hearing in which the employee is represented by an ACRE representative, and she and other witnesses are questioned by a Metro-North Hearing Officer and the ACRE representative. Thus, when the CBA uses the term investigation, it is really referring to a trial-like hearing in which facts are presented. In fact, the CBA sometimes refers to this investigation as a "trial."

Under certain circumstances, an employee may be held out of service pending such investigation and decision. The CBA provides that an employee will only be held out of service pending investigation for a "serious acts or occurrence," which includes a violation of Rule G, insubordination, extreme negligence, and stealing. The CBA provides that an employee will not be held out of service pending investigation and decision in cases that are not serious acts or occurrences. Yet, contradictorily, the CBA provides that if an employee is held out of service pending investigation and decision for other than a serious act or occurrence, he will be paid what he would have earned had he not been held out of service, excluding the day of the formal investigation, if he is disciplined.

An employee directed to attend an investigation will be notified in writing within seven days of the date of the occurrence. Before the investigation, the union and Metro-North must attempt to resolve the matter. If these efforts are unsuccessful, the investigation proceeds. At this trial-like proceeding before a Metro-North officer, an employee who may be subject to discipline has the right to present witnesses with information relevant to the investigation, to present testimony. Metro-North orders employee witnesses to be in attendance if the employee under investigation requests their attendance. The employee and his union representative have the right to be present during the entire investigation.

If the employee finds the discipline imposed to be unjust, the employee may appeal to the Assistant Director of Labor Relations. The decision of the Assistant Director of Labor Relations is final and binding unless ACRE appeals that decision to the Highest Appeals Officer.

The decision of the Highest Appeals Officer may be appealed to the Special Board of Adjustment. The Special Board of Adjustment is a panel composed of three arbitrators: one selected by Metro-North, one by ACRE, and a neutral arbitrator selected by both parties. DeFrancesco's Infractions, Discipline, and Grievance

On or about August 18, 2008, DeFrancesco was issued a TIM to use in the course of her work. A TIM is a hand-held electronic device that records every sales transaction a crew member makes and is used for on-board ticket sales and revenue transactions in passenger trains. It collects information such as the type of fare, amount of fare, cash tendered, cash remitted, and change, and issues receipts. Metro-North required conductors to use TIMs.

In late 2008, DeFrancesco refused to use the TIM, but was repeatedly warned by union officials that she should use the TIM. However, DeFrancesco did not use the TIM because she thought it was unsafe. She was trying to become pregnant and thought that it might be dangerous to have a TIM in contact with her body. DeFrancesco had been informed by a medical professional in October 2008, and later by one Dr. Salimbene, that she should not use the TIM. DeFrancesco alleges that at some point she provided Metro-North with a doctor's note in an effort to be excused from being required to use the TIM, but to no avail.

Around January 24, 2009, DeFrancesco was notified that she would be discharged if she did not wear the TIM. She claims she started wearing the TIM to save her job, despite her fear that it might be dangerous to her pregnancy to use a TIM. DeFrancesco had heard that another pregnant conductor who wore a TIM had a miscarriage. At some point in March 2009, she thought she was pregnant but continued to wear the TIM out of fear of losing her job. Using the TIM caused DeFrancesco anxiety and emotional distress, of which she informed Metro-North and ACRE.

Once her pregnancy was confirmed on April 1, 2009, she stopped using the TIM. However, in May 2009, DeFrancesco was repeatedly warned by both Metro-North and ACRE that she must wear a TIM or else she would lose her job. DeFrancesco received one such warning on or about May 12, 2009. Although DeFrancesco sought ACRE's assistance in challenging this Metro-North rule, DeFrancesco alleges that the union sided with Metro-North and warned her that she would lose her job unless she used the TIM.

It is unclear from DeFrancesco's complaint whether she began wearing her TIM again on May 12, 2009 after her job was threatened, but on May 15, 2009, she was hospitalized and she suffered a miscarriage. DeFrancesco alleges that ACRE and Metro-North's behavior in harassing her to wear a TIM, as well as the fear of miscarriage resulting from use of the ...

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