Costanzo v. United Parcel Service, Inc., 82 C 1738.

• Decision Date: 10 November 1983
• Docket Number: No. 82 C 1738.,82 C 1738.
• Citation: 573 F. Supp. 1118
• Parties: Patrick COSTANZO, et al., Plaintiffs, v. UNITED PARCEL SERVICE, INC., and Local 804, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Defendants.
• Court: U.S. District Court — Eastern District of New York

573 F. Supp. 1118

Patrick COSTANZO, et al., Plaintiffs, v. UNITED PARCEL SERVICE, INC., and Local 804, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Defendants.

No. 82 C 1738.

United States District Court, E.D. New York.

November 10, 1983.

Robert D. Farkas, Scotch Plains, N.J., for plaintiffs.

Proskauer, Rose Goetz & Mendelsohn, New York City (Jeffrey A. Mishkin, Wanda Ellert, Joseph R. Knock, New York City, of counsel), for defendant United Parcel Service.

Cohen, Weiss & Simon, New York City (Stanley M. Berman, New York City, of counsel), for defendant Local 804.

MEMORANDUM AND ORDER

NICKERSON, District Judge.

Plaintiffs brought this action in the Supreme Court of the State of New York, Queens County, seeking declaratory and injunctive relief, and, without mentioning the Labor Management Relations Act (the Act), 29 U.S.C. § 141 et seq., alleged that defendant union breached its duty of fair representation and that defendant employer joined in that breach. Defendants United Parcel Service, Inc. (United Parcel) and Local 804, International Brotherhood of Teamsters (the Union) removed the case to this court, asserting that the allegations of the complaint state a claim under the Act. Thereafter, pursuant to stipulation, plaintiff filed an amended complaint, asserting jurisdiction under the Act. Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, on the ground that the action was not timely brought.

The pertinent undisputed facts are, in substance, as follows. Under a collective bargaining agreement in effect between United Parcel and the Union for the period of June 7, 1977 through April 30, 1979 (the 1977 Agreement) an employee's layoff seniority date was determined differently from his "bidding" seniority date. For purposes of layoffs an employee's seniority date was his date of hire by United Parcel. However, for purposes of bidding for available routes, overtime, vacation time and day off schedule an employee lost his seniority if he transferred to another classification (e.g., from "package driver" delivery van operator to "feeder driver" tractor-trailer truck operator). When he transferred to another classification he was given a bidding seniority date in the new group one day later than the seniority date of the then most junior employee in the group in the geographic district.

In the spring of 1979 the Union suggested modifications for the new agreement to go into effect May 1, 1979. These included a proposal to allow full company seniority (and not merely "layoff" seniority) to any employee who transferred to a different classification. United Parcel agreed; the proposal was incorporated into the 1979 Agreement; the Union notified United Parcel in July 1979 that the agreement had been ratified; and it went into effect.

Plaintiffs are forty one current or former United Parcel employees and members of the Union who in 1979 were all feeder drivers. They say they have suffered a relative loss in seniority because the 1979 Agreement changed the prior 1977 Agreement and allowed employees from other classifications to transfer into the feeder driver classification without sacrificing company seniority for any purpose. They claim that, despite Union ratification of the 1979 Agreement, the seniority change was contrary to the expressed will of the membership.

Plaintiffs commenced the action in May 1982, more than two years after the agreement went into effect. Defendants argue that under the reasoning of the decision in DelCostello v. International Bhd. of Teamsters, ___ U.S. ___, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), this court should apply the six month statute of limitations of Section 10(b) of the National Labor Relations Act, as amended (NLRA), 29 U.S.C. § 160(b). That section provides, in pertinent part, "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made."

In the DelCostello case the Supreme Court dealt with two separate suits by employees against their employers and...