Cantwell v. Officers, Case:No 07-CV-1154 (ENV) (CLP)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtERIC N. VITALIANO
Docket NumberCase:No 07-CV-1154 (ENV) (CLP)
Decision Date23 March 2011

DELLIGATI, Plaintiffs,
PIZZULI, Defendants.

Case: No 07-CV-1154 (ENV) (CLP)


Dated: March 23, 2011



Plaintiffs Timothy Cantwell and Joseph Delligati filed this action against their former union, the Special and Superior Officers Benevolent Association ("SSOBA" or "the union"), and its president, James J. Pizzuli (collectively, "defendants"), alleging violations of federal labor law arising from SSOBA's decision to disclaim interest in certain members, including plaintiffs, employed as security guards at Long Island Jewish-North Shore Hospital ("LIJ"). The causes of action purport to arise under sections of the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 158(b)(1)(A) and 158(b)(3), the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), 29 U.S.C. §§ 411(a), 412, and 529, the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 301, and as a matter of state contract law. Defendants move to dismiss the complaint under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). For the reasons stated below, the motion is granted to the extent that plaintiffs' first cause of action is dismissed with prejudice, and plaintiffs' remaining causes of action are dismissed without prejudice and with leave to replead within 20 days of the entry of this Memorandum and Order.

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The following facts are drawn from the complaint, and all reasonable inferences are construed in favor of plaintiffs. See Gorman v. Consol. Edison Corp.. 488 F.3d 586, 591-92 (2d Cir. 2008).

SSOBA was founded in 1972, with the original purpose of representing the security guards at LIJ (the "LIJ employees"). The union now represents over 2,000 security officers throughout New York City and Long Island. Cantwell became an LIJ employee and joined SSOBA in 1999; Delligatti did so in 2002. On January 1, 2004, SSOBA appointed Cantwell as a delegate to represent the union in grievances with LIJ management.

Cantwell ran unsuccessfully for SSOBA president in 2004, and announced his intention to run again in 2007. Cantwell was removed from his delegate position in November 2004. After the 2004 election loss, Cantwell and two other unsuccessful candidates for union office filed a complaint with the Department of Labor challenging the election. Consequently, on July 8, 2005, the Department of Labor commenced an action against SSOBA before this Court, Chao v. Special & Superior Officers Benevolent Assoc., No. 05-CV-3261.

On December 7, 2006, at a meeting of LIJ employees and management, Jerry Ryan, LIJ's director of security, announced that SSOBA would disclaim all interest in the LIJ employees upon the expiration of the collective bargaining agreement ("CBA") between SSOBA and LIJ on December 31, 2006. There were no SSOBA representatives at the meeting. A letter from SSOBA was posted at the LIJ jobsite, however, informing the LIJ employees that the union had disclaimed the members because they had filed too many grievances. The LIJ employees made repeated attempts to communicate with the union, but they were unsuccessful. Ultimately, the

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LIJ employees did not acquire new representation, and the CBA between SSOBA and LIJ expired.

Once the CBA expired, automatic deduction of SSOBA dues from the paychecks of LIJ employees, including the plaintiffs, ceased. Although plaintiffs believed that they had been expelled from the union, neither they nor any of the other LIJ employees ever received a delinquency notice, or notice of suspension or expulsion for delinquency.

When no new CBA was negotiated, the LIJ employees, including plaintiffs, became at-will employees. Cantwell has remained so; Delligatti's employment status is unknown. Plaintiffs allege that some of the rights that had existed under the CBA have been abrogated by their employer but have made no specific allegations in that regard. Further, they make no allegation that the disclaimer of interest or the subsequent expiration of the CBA resulted in the loss of employment or any change in the hours, wages, or conditions of employment of any LIJ employees.

Plaintiffs contend that SSOBA's action was retaliation for Cantwell's opposition to the union leadership, that Cantwell and his co-workers accounted for the only opposition to that leadership, and that SSOBA acted to stifle dissent.


To survive dismissal under Rule 12(b)(6), a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (U.S. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. Plaintiffs must provide more than a "formulaic recitation of

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the elements of a cause of action." Twomblv. 550 U.S. at 555. A court must presume the truth of all factual allegations in the complaint for purposes of Rule 12(b)(6), but the court is not bound to accept the truth of legal conclusions couched as factual allegations. Papasan v. Allain. 478 U.S. 265, 286, 106 S. Ct. 2932, 2944 (1986). In analyzing well-pled facts, a court will draw all reasonable inferences in favor of the plaintiff, see Gorman. 488 F.3d at 591-92, and this also holds true in the context of a motion to dismiss made pursuant to Rule 12(b)(1) based on lack of subject matter jurisdiction, see Robinson v. Gov't of Malaysia. 269 F.3d 133, 140 (2d Cir. 2001). Moreover, "[a] case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States. 201 F.3d 110, 113 (2d Cir. 2000).


A. Duty of Fair Representation Claim

Plaintiffs' first cause of action alleges a breach of the duty of fair representation in violation of the NLRA.1 The duty of fair representation requires a union to represent the interests of all members during the negotiation, administration, and enforcement of collective bargaining agreements without acting arbitrarily, discriminatorily, or in bad faith. Price v. Int'l Union, United Auto., Aerospace and Agric. Implement Workers of Am., 927 F.2d 88, 92 (2d Cir. 1991).

However, union actions that neither involve the employer nor have an effect on the conditions of employment are considered internal union matters, excluded from the duty of fair representation. Price v. Int'l Union, United Auto., Aerospace and Agr. Implement Workers of

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Am,, 795 F.2d 1128, 1134 (2d Cir. 1986), vacated on other grounds. 487 U.S. 1229 (1988). "[T]he duty of fair representation can only arise when all three parties [union, employee and employer] are involved." Id. at 1134. Consequently, a plaintiff must allege an adverse action by the employer, or a substantial effect on the conditions of employment, for a duty of fair responsibility representation claim to survive dismissal under Rule 12. See Beck v. Commc'ns Workers of Am.. 800 F.2d 1280 (4th Cir. 1986) (collection and use of fees implicates the duty of fair representation when the failure to pay fees results in discharge); Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers of Am.. Local No. 310 v. Nat'l Labor Relations Bd., 587 F.2d 1176 (D.C. Cir. 1978) (binding plaintiffs without their consent to a new CBA, determining their rights vis-a-vis their employer going forward, implicates the duty of fair representation); Retana v. Apartment, Motel, Hotel and Elevator Operators Union, Local No. 14. AFL-CIO. 453 F.2d 1018 (9th Cir. 1972) (failure to accommodate non-English speaking members left plaintiff unable to exercise her rights vis-a-vis her employer under the CBA, and she was discharged, properly stating a duty of fair representation claim); Reid v. McDonnell Douglas Corp.. 443 F.2d 408 (10th Cir. 1971) (allegation that union action will result in the employer discharging the employee gives rise to a duty of fair representation claim); cf Price, 795 F.2d 1128 (procedure adopted to determine union dues does not implicate the duty of fair representation); Kolinske v. Lubbers, 712 F.2d 471 (D.C. Cir. 1983) (distribution of strike benefits is an internal union matter); Kirk v. Transport Workers Union of America. AFL-CIO, 934 F. Supp. 775 (S.D. Tex. 1995) (a union publishing a newsletter that is critical of a faction within the union did not violate the duty of...

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