Opinion
00 Civ.5666
November 2, 2000
OPINION ORDER
In this case, the plaintiff, a union member, has brought a hybrid claim against his current employer and his union. Plaintiffs First Amended Complaint (hereinafter "Complaint") sets forth a cause of action against defendant Newspaper and Mail Deliverers Union ("the Union") for breach of the duty of fair representation and a cause of action against his employer, the New York Times ("the Times"), for alleged participation in that breach of duty. Plaintiff has also brought a claim against the Times for age discrimination in violation of the New York City Human Rights Law Administrative Code Section 8-107 (1 )(a); and (4) against the Times for age discrimination in violation of the New York State Human Rights Law, Section 290. Defendants move to dismiss, pursuant to Fed.R.Civ.P. 12 (b)(6), plaintiffs entire First Amended Complaint. For the reasons discussed below, the defendants' motions are GRANTED.
I. BACKGROUND
I take the facts as pled to be true on this motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff, Theodore Kavowras, is an employee of defendant New York Times and is represented by defendant Newspaper And Mail Deliverers Union (the "Union") pursuant to a collective bargaining agreement ("CBA") with the Times. The plaintiff is sixty-nine years old and has been employed in the delivery department of the Times for thirty-two years (First Amended Complaint ("Compl.") ¶ 7.) The complaint alleges that plaintiffs cause of action resulted from the miscarriage of grievance and arbitration proceedings that he has pursued under the terms of the CBA (Id. ¶ 1.). The plaintiff had bid for and was awarded his position, known as the "Publisher's Rolls", on the basis of seniority. (Id. ¶ 17.) The "Publisher's Rolls" is the paper route whereby the Times is delivered free of charge to the residences of certain designated officials. Additionally, in 1991 the plaintiff was awarded the precise terms and conditions of his employment as part of a "Four Man Board Award." (Id. ¶ 25.) The Four Man Board Award specifically provided that "This agreement only applies to Theodore Kavowras as long as he stays on this job or til he bids off, retires or dies." (Id. ¶ 26.)
On or about July 28, 1997, plaintiff underwent surgery and at various times from January to October of that year he was on disability leave from work. Plaintiff asserts that "on or about August 4, 1997, the Times purported to abolish the delivery of the Publisher's Rolls" and thereafter subcontracted the delivery of the Publisher's Rolls to a non-union shop in violation of the governing CBA. (Compl. ¶¶ 30, 34-35.) Upon plaintiffs return to work, the Times assigned him to work other than his bid work, work which the plaintiff finds more onerous and less desirable work. The plaintiff further alleges that the Times reduced his compensation and changed the terms and conditions of his employment, all in violation of his Four Man Board Award. (Compl. ¶ 31.) Plaintiff alleges that before taking this actions, the Times failed to notify the Union as required by the grievance and arbitration provisions of the CBA, or in the alternative, that the Times notified the Union, and the Union failed to take immediate action in response. (Id. ¶¶ 41-42.)
In the fall of 1997, plaintiff made repeated demands, via letter, upon the Union to grieve the Times' action and violations of the CBA and his 1991 Four Man Board Award. (Id. ¶ 43.) In response to plaintiffs demands, the Union began to pursue his grievance. An arbitration was held on January 16, 1998. (Id. ¶ 45.) Plaintiff alleges that prior to the arbitration the Union failed to conduct an adequate investigation of his grievance. (Id. ¶ 46.) Plaintiff claims that the Union failed to offer evidence in his behalf at the first arbitration proceeding. Plaintiff also alleges that at the first arbitration proceeding, the Union, the Times, and the arbitrator attempted to coerce and unduly influence the plaintiff to settle his grievance and as a result he agreed to an unfavorable settlement. (Id. ¶ 49.) The proposed settlement was to become final and binding only after being reduced to writing (Id. ¶ 54.) To date, the settlement has not been reduced to writing. (Id. ¶ 55.) Accordingly, plaintiff claims that the settlement was never consummated. Thereafter, plaintiff notified the Union that he would not agree to the proposed settlement and he repeatedly demanded that they proceed with his grievance.
In October 1998, the Union Executive Board ordered a second arbitration session in connection with the plaintiffs grievance. (Id. ¶ 62.) The second arbitration was held on February 16, 2000 before the same arbitrator, whom plaintiff claims was biased and should have recused himself. Plaintiff alleges that the Union again failed to offer any evidence on his behalf, failed and refused to ask the arbitrator to recuse himself and that he was again coerced into entering into a settlement. (Id. ¶¶ 70, 72.) Plaintiff alleges that the Union and the Times "conspired or otherwise colluded in deprive [sic] plaintiff of his work, his compensation and of the terms and conditions of employment as established by his 1991 Four Man Board Award." (Id. ¶ 78.) The matter has been pending before the arbitrator for more than thirty-one months (as of August 2000) and the arbitrator has not yet issued an award with respect to plaintiffs grievance. (Id. ¶ 80.) Thereafter, on August 31, 2000 plaintiff commenced the instant litigation.
II. DISCUSSION A. Motion to Dismiss Standard
In deciding a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief may be granted, the court "must accept the material facts alleged in the compliant as true." Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994). Dismissal is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
B. Statute of Limitations
A "hybrid" action under the Labor Management Relations Act ("LMRA") is one that is brought by a union member and that combines an unfair labor practice claim against the employer with a claim against the union for breach of the duty of fair representation. Del Costello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164-65 (1983). A hybrid action is subject to a six-month statute of limitations, id. at 172, as the parties agree.
The parties disagree, however, as to when the statute of limitations began to accrue with respect to plaintiffs claims. As a general rule, the statute of limitations on a fair representation claim begins to run when "the plaintiff could first have successfully maintained a suit based upon that cause of action." Santos v. District Council of New York City, 619 F.2d 963, 968-9 (2d Cir. 1980) (quoting Bell v. Aerodex. Inc., 473 F.2d 869, 973 (5th Cir. 1973)). A plaintiffs ability to maintain a claim necessarily entails notice, either actual or constructive, of the union's breach: "the claims against both the employer and the union begin to accrue no later than the time when plaintiffs knew or reasonably shoZild have known that such a breach had occurred." Demchik v. General Motors Corp. 821 F.2d 102, 105 (2d Cir. 1987) (citations and internal quotations omitted).
However, Tn cases where, as here, a union is alleged to have inadequately represented one of its members at an arbitration hearing, the prospective plaintiff is not deemed to have notice of the breach until an adverse arbitration result has been issued. Ghartev v. St. John's Oueens Hospital, 869 F.2d 160, 165 (2d Cir. 1989) ("Knowledge of the breach by the Union will not be attributed to [plaintiff] prior to the issuance of the award" in cases where "the cause of action is based on a union s inadequate representation during the course of and through to the conclusion of an arbitration.").
Ghartey implies that the statute of limitations begins to run when the arbitrator's award is issued, regardless of when a copy of the award is received by an employee. A number of courts have held that where an employee already knows the "essential disposition" of his case by the arbitrator or by his or her union, the limitations period is not tolled until the employee receives formal notice of that disposition. See. e.g., Evans v. Eastern Air Lines, Inc., No. 88-Civ. 5504, 1990 WL 625172 (S.D.N.Y. Apr. 4, 1990); McLinn v. Boeing Company, 715 F. Supp. 1024, 1029 (D.Kan. 1989); Dowty v. Pioneer Rural Electric Cooperative. Inc., 770 F.2d 52, 57 (6th Cir. 1985), cert. denied, 474 U.S. 1021 (1985);Howard v. Lockheed-Georgia Comoany, 742 F.2d 612, 614 (11th Cir. 1984).
In Ghartey, the Second Circuit held that "a federal district court should not be called upon to consider a suit based in part on the claim that a union lawyer's preparation for or performance in an arbitration hearing was inadequate before the effectiveness of that representation can be measured." 869 F.2d at 163. Therefore, "in a hybrid action alleging the Union's inadequate representation during the course of an arbitration hearing," a plaintiff cannot be expected to maintain the action before any decision has issued in the arbitration. Id. at 164.
C. Date of Accrual
The parties disagree as to when the statute of limitations began to run on plaintiffs claim. Defendants contends that plaintiffs claims are barred by the statute of limitations, since his claims would be timely only if they accrued on or after January 31, 2000 (the date six months prior to the actual filing of the original complaint). Defendant also contends that, based on the allegations contained in the First Amended Complaint, plaintiffs claims accrued (i) at the earliest in August 1997; (ii) on January 16, 1998, the date of the first arbitration proceeding; (iii) on May 6, 1998, the date of plaintiffs fourth letter to the union; or (iv) at the very latest, July 10, 1998, when plaintiff filed an unfair labor practice charge at the National Labor Relations Board ("NLRB") against the Union for breach of the duty of fair representation.
Plaintiffs complaint was filed within six months of the second arbitration proceeding. Plaintiff asserts that in a hybrid action, a union member's cause of action accrues when a breach occurs and that so long as a union leads a member to believe that his grievance is still alive, his cause of action against the union does not accrue. In King v. New York Telephone Co., Inc., 785 F.2d 31, 35 (2d Cir. 1986), the Second Circuit found that acause of action in a fair representation case did not accrue while plaintiff "reasonably believed the Union was proceeding in good faith." In King, the Second Circuit found that "the Union never refused to proceed on [plaintiffs] behalf and appears to have led her to believe that arbitration continued to be available." Id. However, in this case, plaintiff cannot claim that he "reasonably believed the Union was proceeding in good faith" up until the second arbitration session, in light of the fact that he filed an unfair labor practice charge with the NLRB against the Union and the Times on July 10, 1998. Courts have repeatedly held that in hybrid actions the filing of an NLRB charge starts the statute of limitations running, especially when the NLRB charges are essentially similar to those upon which the underlying action is based. Katsaros v. Transit-Mix Concrete Corp., 615 F. Supp. 450, 451 (S.D.N.Y. 1985); see also Boyd v. Teamsters Local Union 553, 589 F. Supp. 794, 797 (S.D.N.Y. 1984). In his NLRB charge, plaintiff charged that "[s]ince on or about January 16, 1998" the Union "has failed and refused to represent Theodore Kavowas . . . with respect to his job description, working hours, and overtime pay" and "has restrained and coerced employees in the Exercise of their rights." (See Def. Times Notice of Motion, Ex. 3.) The allegations of the First Amended Complaint track the allegations set forth in plaintiffs NLRB charge, alleging that `at the first arbitration session, the Union failed and refused to offer any evidence on plaintiffs behalf' and that the Times and the Union "attempted to coerce, intimidate or unduly influence" the plaintiff at that arbitration session. (Compl. ¶¶ 48, 49.) Although the Ghartey case stands for the proposition that "a federal district court should not be called upon to consider a suit based in part on the claim that a union lawyer's preparation for or performance in an arbitration hearing was inadequate before the effectiveness of that representation can be measured" there is no reason to toll the statute of limitations in this case until the arbitrator issues an award that the plaintiff considers final and binding. Ghartey. 869 F.2d at 163. The Ghartey court held that "the employee is entitled, during the hearing process, to trust in the abilities of her representative and reasonably believe the Union proceeding in good faith, at least until an adverse arbitral decision suggests otherwise." Id. (citations omitted). In Ghartev, the Circuit reasoned that "the concerns that warrant protecting an unsophisticated grievant from having to assess the ongoing performance of her union representative, do not apply where she and the union have already taken on an adversarial posture." Id. (citations omitted). This precisely what appears to have happened here. The plaintiff was able to measure the union's representation as evidenced by the fact that upon becoming aware of the tentative settlement (which was put on the record) (Compl. ¶ 57), he concluded (at least in his mind) that there was a sellout and proceeded to file a charge with the NLRB. The pleadings and the NLRB charge demonstrate that plaintiff was aware that he could have first maintained a claim against the Union and the Times in the six months following the first arbitration session held on January 16, 1998. "[A] breach of duty by the union is apparent to the member at the time she leams of the union action or inaction about which she complains" and thus, it is clear that the plaintiff was aware of his cause of action after the first arbitration session was held on January 16, 1998.Ghartey, 869 F.2d at 165.
It may be that courts have unwittingly erected barriers that make it more complicated than necessary for unsuspecting wage earners with or without disabilities to have their day in court. Nonetheless, the law here is seemingly quite clear and ignorance or lack of experience cannot save the day. In this case, "[p]laintiff merely failed to proceed in two places at once, which while understandable in some sense, reflects nothing more than ignorance of the available avenues of relief, and is not a factor in equity to bar the defense of the statute of limitations in this case." Boyd v. Teamsters Local Union 553, 589 F. Supp. 794, 797 (S.D.N.Y. 1984).
D. Consideration of NLRB Charge
Plaintiff objects to the Court's consideration of the NLRB charge, and asserts that if the NLRB charge is considered, the Court is required to convert the motion to dismiss into a motion for summary judgment under Fed.R.Civ.P. 56. As a general rule, when a court decides to consider documents outside plaintiffs complaint on a motion to dismiss, Rule 12 (b)(6) requires that the motion be treated as one for summary judgment and disposed of as provided in Rule 56. However, the NLRB charge is a publicly filed document and, therefore, a matter of public record that the Court may consider on a motion to dismiss. See. e.g. Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998), cert. denied, 119 S.Ct. 868 (1999) ("It is well established that a district court may rely on matters of public record in deciding a motion to dismiss under Rule 1 2(b)(6)"). See also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (district court could consider documents of which the plaintiff had notice and which were integral to their claim in ruling on motion to dismiss even though those documents were not incorporated into the complaint by reference); Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991) (district court may examine public disclosure documents on 12(b)(6) motion). Here, the NLRB charge was submitted by the Times as an exhibit to their motion to dismiss. The Court, having considered the document and the plaintiffs opposition to its consideration, finds that plaintiffs federal Section 301 claims against the Union and the Times must be dismissed. Moreover, the Court declines to exercise supplemental jurisdiction over plaintiffs remaining State and City claims, and accordingly, such claims are dismissed without prejudice. See Lanza v. Merrill Lynch Co. (In re Merrill Lynch Ltd. Partnerships Litig.), 154 F.3d 56, 61 (2d Cir. 1998) (per curiam) ("`in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendant jurisdiction doctrine — judicial economy, convenience, fairness and comity — will point toward declining jurisdiction over the remaining state-law claims.'") (quoting Caregie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988)).
III. CONCLUSION
For the reasons set forth above, the defendants' motions to dismiss are GRANTED. The Clerk of the Court is instructed to close the case.
SO ORDERED.