Opinion
00 Civ. 3480 (RCC)
October 15, 2001
OPINION AND ORDER
Petitioner Jasper Crowell ("Crowell") filed this action against his collective bargaining representative, International Brotherhood of Teamsters, Local 202 (the "Union"), and his employer, M. Trombetta Sons, Inc. ("Trombetta"), seeking to vacate the Opinion and Award of Arbitrator Arthur A. Riegel, Esq., dated December 29, 1999 (the "Opinion and Award"). Crowell contends that the arbitrator improperly dismissed the grievance brought against Trombetta by the Union concerning Crowell's failure to receive double time pay for the period from January 15, 1992, through August 1994. Respondents now move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) on the ground that Crowell lacks standing to challenge the Opinion and Award. For the reasons set forth below, respondents' motion is granted and the petition is hereby dismissed.
I. BACKGROUND
Trombetta hired Crowell in August 1988 to work as a warehouseman pursuant to a collective bargaining agreement ("CBA") between Trombetta and the Union. The 1989 CBA provided, in pertinent part, that employees would receive double wages for hours worked between 8 p.m. and 12 midnight. The parties subsequently renegotiated the CBA and changed the double time pay to a night shift differential, to be paid in addition to base pay. However, the CBA included a "grandfather" provision that permitted certain employees to continue to receive double time wages. See Opinion and Award at 2-3.
Crowell contends that he was improperly denied double time pay for the period from January 15, 1992, through August 1994. According to Crowell, he filed formal grievances with the Union regarding this denial on August 11, 1994, and on May 18, 1995, both of which the Union failed to pursue. In 1999, Petitioner filed a third grievance, which the Union arbitrated against Trombetta.
The arbitrator did not reach the merits of the double time claim because he ruled that the grievance was untimely. The arbitrator applied a standard of "reasonableness" in order to determine whether Crowell had filed his grievance "promptly, " as required by the CBA. Id. at
5. The arbitrator concluded that:
[E]ven if Mr. Crowell filed a grievance in 1994 or 1995, this was at least two years or perhaps three years after the event giving rise to the grievance took place.
The Arbitrator is persuaded that [Crowell] knew in 1994 or 1995 and should have known in 1992 that the contract might have been violated. The action of [Crowell] in filing a grievance three years late and then re-filing it some four years later is simply unreasonable."Id. at 6-7. The arbitrator thus dismissed the grievance. Id. at 7.
On March 24, 2000, Crowell filed an Unfair Labor Practice charge with the National Labor Relations Board ("NLRB") against the Union. Crowell argued that the Union breached its duty of fair representation by failing to introduce documentary evidence of the earlier grievances filed by Crowell. The NLRB Regional Director refused to issue a complaint, noting that grievants are not entitled to have specific evidence introduced at an arbitration hearing. See Letter from Silverman to Crowell of 5/25/00, at 1. The Director further found that "the decision not to introduce the [1995 grievance document] appears to have had no effect on the arbitrator, as he credited your testimony that you had filed a grievance in 1995." Id. The Office of Appeals for the General Counsel of the NLRB denied Crowell's appeal on the same basis as that set forth by the Regional Director. See Letter from Dixon to Nigen of 10/6/00, at 1.
Crowell then filed the instant petition in New York State Supreme Court on March 20, 2000, which the respondents removed to this Court pursuant to 28 U.S.C. § 1441 and 1446. Crowell contends that the Opinion and Award must be vacated because it was rendered "in manifest disregard of the law and the evidence." Pet. Mem. at 2. Specifically, Crowell argues that his 1994 and 1995 grievance forms were never introduced into evidence and that his testimony was not accorded sufficient weight. Id. at 3-4. Respondents oppose the petition and move to dismiss the case under Federal Rule of Civil Procedure 12(c) on the ground that Crowell lacks standing to bring this action as he was not a party to the arbitration.
II. DISCUSSION
"In considering a Rule 12(c) motion, the court must accept as true all of the well pleaded facts alleged in the complaint and may not dismiss the action unless the court is convinced that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Bloor v. Carro, Spanbock, Londin, Rodman Fass. 754 F.2d 57, 61 (2d Cir. 1985) (citations omitted). However, if after construing all inferences in favor of the plaintiff, the movant is still entitled to judgment as a matter of law, the motion should be granted. See Burns Int'l Sec. Servs. v. International Union, United Plant Guard Workers of Am., 47 F.3d 14, 16 (2d Cir. 1994). Here, even accepting Crowell's allegations as true, the petition nonetheless must be dismissed on the pleadings for lack of standing.
To begin, it is well-established that "an individual employee represented by a union generally does not have standing to challenge an arbitration proceeding to which the union and the employer were the only parties." Katir v. Columbia Univ., 15 F.3d 23, 24-25 (2d Cir. 1994); See also Ladson v. Ulltra East Parking Corp., 878 F. Supp. 25, 28 (S.D.N.Y. 1995) (noting that an employee who was not a party to the collective bargaining agreement or to the arbitration lacks standing to challenge the award). An exception arises when the employee alleges that his or her union breached its duty of fair representation during the arbitration at issue. See Katir, 15 F.3d at 24-25; Ladson, 878 F. Supp. at 28. In order to support such a claim, the employee must show that the union's handling of the grievance was "arbitrary, discriminatory or in bad faith" and that the union's conduct "seriously undermined the arbitral process." Barr v. United Parcel Service. Inc., 868 F.2d 36, 43 (2d Cir. 1989) (citations omitted); see also Beckman v. United States Postal Serv., 79 F. Supp.2d 394, 401 (S.D.N.Y. 2000).
Here, it is undisputed that Crowell was neither a party to the arbitration nor a signatory to the CBA. Moreover, Crowell fails to set forth any specific allegations in his petition regarding breach of the duty of fair representation, but instead asserts that he has standing to bring this action because he "filed a charge of denial of fair representation against his union, Local 202, with the appropriate office of the National Labor Relations Board." Petition ¶ 4. In essence, Crowell argues that the mere filing of a charge with the NLRB is sufficient to confer standing. Pet. Rep. Mem. at 5.
This Court is aware of no case which has adopted Crowell's position. Indeed, to do so would allow Crowell to circumvent the normal rules of pleading. Courts routinely dismiss actions such as this for lack of standing where the petitioner has failed to allege sufficient facts to support a breach of fair representation claim. See e.g., Scalzo v. Insalaco's Markets, 37 F. Supp.2d 376, 378 (M.D. Pa. 1998) (dismissing action for lack of standing where plaintiff failed to properly plead and prove a breach of the duty of fair representation); Hogan v. Sutton, 919 F. Supp. 738, 742 (S.D.N.Y. 1996) (dismissing action for, among other reasons, lack of standing where the complaint was "devoid of factual allegations from which a reasonable jury could conclude that the Union's actions were arbitrary, discriminatory, fraudulent or in bad faith"); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (noting that each element of standing "must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation").
The one case cited by Crowell in support of his position, Truck Drivers Local Union 807, International Brotherhood of Teamsters v. Regional Import Export Trucking Co., Inc., 944 F.2d 1037 (2d Cir. 1991), is completely inapposite. In that case, the defendant employer argued, among other things, that a grievance arbitration between the union and the employer should not go forward because the NLRB previously determined that the union had a conflict of interest. 944 F.2d at 1044. The Second Circuit noted that a prior determination that the union breached its duty of fair representation may allow an employee either to bypass arbitration completely or to have any resulting arbitration award vacated. Id. at 1045. Because the employees nonetheless chose to continue with union representation, the Second Circuit held that any resulting arbitration award would not be automatically invalid. Id. The Second Circuit, however, never addressed whether the mere filing of a charge with the NLRB would confer standing to vacate an arbitration award; in fact, the Court did not mention the concept of standing at all. The decision is further distinguishable for the obvious reason that here the NLRB did not find any breach of fair representation by the Union and refused to issue a complaint in the matter.
Moreover, even if this Court looks beyond the petition to the allegations set forth in the briefs and the NLRB charge, Crowell still cannot support a claim for breach of the duty of fair representation. Crowell alleges that the union failed to introduce evidence of earlier grievances during the arbitration proceeding and then failed to seek to vacate the arbitration award in a timely manner. The Union's failure to introduce the 1994 and 1995 grievance documents cannot, under these circumstances, constitute a breach of the duty of fair representation. In the Opinion and Award, the arbitrator explicitly credited Crowell's testimony that those grievances had been filed but nonetheless ruled that "even if Mr. Crowell filed a grievance in 1994 or 1995, this was at least two and perhaps three years after the event giving rise to the grievance took place." Opinion and Award at 6. Thus there is no basis here to suggest, even drawing all inferences in Crowell's favor, that the Union's failure to introduce the actual documents "seriously undermined the arbitral process." Barr, 868 F.2d at 43. The NLRB arrived at the same conclusion. See Letter from Silverman to Crowell of 5/25/00, at 1.
Nor can Crowell make out a breach of fair representation based upon the Union's failure to seek to vacate the award. The duty of fair representation generally does not obligate the union to appeal or to file a petition to vacate an adverse award. See Freeman v. Local Union No. 135 Chauffeurs, 746 F.2d 1316, 1320 (7th Cir. 1984) (holding that "the union owed [plaintiff] no duty at all when it decided not to appeal" the award); Ciano v. Utility Workers Union of Am., 94 Civ. 3423 (AGS), 1995 WL 489452, at *6 (S.D.N.Y. Aug. 15, 1995) (noting that "courts have been reluctant to find that there is a duty on the part of a union to move for vacatur of an arbitration award that is adverse to an employee's interest" and declining to impose such a duty); Crusco v. Fisher Bro., Inc., 458 F. Supp. 413, 422 (S.D.N.Y. 1978) ("Having submitted the dispute to arbitration before an independent decision maker, the union was entitled, if not required, to abide by the award."); cf. Sears v. Cadillac Auto. Co. of Boston, 654 F.2d 4, 7 (1st Cir. 1981) ("While we need not hold . . . that a union's failure to appeal could never breach its representational duty, it is obvious that courts ought to allow such actions, if at all, only in unusual circumstances where unfairness is blatant."). There are no circumstances here that would support an exception to this general rule.
Consequently, because Crowell has failed to set forth an adequate basis to support his breach of fair representation claim, he lacks standing to litigate this matter.
III. CONCLUSION
For the foregoing reasons, respondents' motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is granted and the petition is hereby dismissed.
The Clerk of the Court is directed to close this case.