Sussman v. Newspaper and Mail Deliverer's Union of New York and Vicinity

Background

The Newspaper and Mail Deliverers’ Union of New York and Vicinity (NMDU) moved for summary judgment on the plaintiffs’ remaining claims that NMDU breached its duty of fair representation. Summary judgment is a decision without a trial that is appropriate only when there is no genuine dispute about a material fact and the moving party is entitled to judgment as a matter of law.

The plaintiffs were non-union members who paid NMDU an agency fee for negotiating with their employer. Their claims concerned a seniority system and an April 21, 2016 Memorandum of Understanding and Extension Agreement. The Extension Agreement provided $95,000 buyouts to 23 individuals based on the existing seniority system. The plaintiffs were ineligible for those buyouts.

Statute of Limitations

NMDU argued that the plaintiffs’ claims were barred by the six-month limitations period applicable to duty-of-fair-representation claims. Because the action began on September 29, 2016, NMDU argued that claims accruing before March 30, 2016 were untimely.

The court explained that the limitations period begins when plaintiffs are affected by the challenged conduct, rather than when the seniority system was created. The plaintiffs produced evidence that a reasonable fact finder could conclude that the 2016 Extension Agreement continued the discriminatory effects of the seniority system into the limitations period. The court therefore did not grant summary judgment on this ground. It also declined at this stage to decide the full limits of using evidence from before the limitations period to show matters such as motive, intent, or absence of mistake.

Exhaustion of the Grievance Process

The plaintiffs were covered by a collective bargaining agreement between their employer and NMDU. As a general rule, employees asserting contract grievances must try the grievance procedure established by that agreement.

The evidence showed that Stefani Lombardi filed a contract grievance on July 11, 2016, expressly referring to Sussman and Bright. The grievance alleged, among other things, that continuing to use the seniority list in its existing order discriminated against senior employees by denying them the same opportunity to elect the buyout. An employee of the plaintiffs’ employer responded that, in his view, only the employer or NMDU could file a grievance. Lombardi continued pursuing the grievance, but the record contained no evidence that NMDU responded directly.

The court concluded that the plaintiffs had shown, without contradiction, that they attempted to use the grievance procedure. Because NMDU allegedly refused without justification to press the grievance, the court held that the exhaustion requirement was excused.

Duty of Fair Representation

The court noted that, before the Extension Agreement was executed, NMDU had been placed on notice that the seniority system was unlawful. The National Labor Relations Board had found that NMDU maintained and applied preferences for union members that disadvantaged nonmembers, and the United States Court of Appeals for the Second Circuit had enforced that ruling.

The plaintiffs presented evidence creating a genuine dispute about whether a nondiscriminatory seniority system would have allowed them to receive the buyout offers. Based on that evidence, a reasonable fact finder could conclude that NMDU acted arbitrarily and in bad faith when negotiating and executing the Extension Agreement because it knew the agreement would continue the discriminatory seniority system. A fact finder could also conclude that NMDU’s conduct was intentional or fell far outside minimum standards of fairness.

Jurisdiction and Remedy

NMDU again argued that the National Labor Relations Board had exclusive authority over the plaintiffs’ claims. The court had rejected that jurisdictional argument when deciding NMDU’s earlier motion to dismiss. Because there had been no change in controlling law and no new evidence affecting that decision, the court declined to revisit it.

NMDU also asked the court to pause the case while a compliance proceeding before the National Labor Relations Board was resolved. The court found that NMDU had not shown at that point that relief in this action would conflict with any remedy ordered by the Board. The court stated that it could reconsider the issue if the case reached the stage of deciding remedies.

Ruling

Judge Castel denied NMDU’s motion for summary judgment. The ruling left the plaintiffs’ remaining duty-of-fair-representation claims for further proceedings; it did not decide that the plaintiffs would ultimately prevail.