Helmer v. Briody

• Citation: 721 F. Supp. 498
• Decision Date: 18 August 1989
• Docket Number: No. 89 Civ. 0467 (RWS).,89 Civ. 0467 (RWS).
• Parties: Henry J. HELMER, Patrick Bencivengo, James Crow, William Dodd, John Duffy, James Kelly, Jack Lopez, James Mottett, Charles Piscopo, Manuel Sanchez, Philip Varrichio and John Walsh, Jr., Plaintiffs, v. Eugene BRIODY, Joseph Zummo, Jack Murphy, Michael Cotter, Richard Bestoff, each in his individual capacity only; Antonio Sanchez, in his official capacity as Secretary-Treasurer of Local 1-2, UWUA, AFL-CIO and in his individual capacity; Joseph Fino; and Local 1-2, Utility Workers Union of America, AFL-CIO; and Consolidated Edison Company of New York, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

721 F. Supp. 498

Henry J. HELMER, Patrick Bencivengo, James Crow, William Dodd, John Duffy, James Kelly, Jack Lopez, James Mottett, Charles Piscopo, Manuel Sanchez, Philip Varrichio and John Walsh, Jr., Plaintiffs, v. Eugene BRIODY, Joseph Zummo, Jack Murphy, Michael Cotter, Richard Bestoff, each in his individual capacity only; Antonio Sanchez, in his official capacity as Secretary-Treasurer of Local 1-2, UWUA, AFL-CIO and in his individual capacity; Joseph Fino; and Local 1-2, Utility Workers Union of America, AFL-CIO; and Consolidated Edison Company of New York, Inc., Defendants.

No. 89 Civ. 0467 (RWS).

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

August 18, 1989.

Kevin G. Jenkins, New York City, for plaintiffs.

Clifton & Schwartz, New York City (Arthur Z. Schwartz, of counsel), Donald F. Menagh, P.C., New York City, for defendants.

OPINION

SWEET, District Judge.

Defendant Eugene T. Briody ("Briody") and individuals allied in interest with him, including Antonio Sanchez, Secretary Treasurer of Local 1-2 Chapter (the "Local") of the Utility Workers Union of America ("UWUA") and the Local (collectively the "Defendants"), have moved pursuant to Rule 56 of the Fed.R.Civ.P. for summary judgment to dismiss the thirtieth and thirty-seventh causes of action of the Amended Complaint of plaintiff Henry J. Helmer ("Helmer") and individuals allied interest with him (collectively the "Plaintiffs"), alleging a breach of the duty of fair representation and a breach of a collective bargaining agreement by the Defendants and Consolidated Edison Company of New York, Inc. ("Con Ed"), and to vacate the preliminary injunction of January 19, 1989. For the reasons set forth below, the motion for summary judgment is denied and the motion to vacate the preliminary injunction is granted.

The Parties

Plaintiff Helmer is a member of the Local and a member of the Executive Board of the UWUA. He was a former Con Ed employee and the former business manager who was removed from that office on charges heard by a Trial Committee in the fall of 1988. The remaining named plaintiffs are members of the Local affiliated in interest with Helmer.

Defendant Briody is the Business Manager of the Local and was its president from July 1986 through February 2, 1989. He has held a full time office in that organization since 1977. He was elected Business Manager in the March 1989 union election where he was opposed by Helmer. The remaining named defendants are officers or members of the Local affiliated in interest with Briody.

The Local is a local labor organization of the UWUA within the meaning of Section 3(i) of the Labor-Management Reporting and Disclosure Act ("the LMRDA"), 29 U.S.C. Section 402(i) and is the certified collective bargaining representative of approximately 14,000 non-managerial employees of the defendant Con Ed. The Local has its offices in New York City.

Con Ed is a public utility corporation with its principal place of business in New York.

Prior Proceedings

Helmer filed a complaint in this action on January 20, containing thirty-six causes of action alleging violation of his free speech rights under § 101(a)(2) of the LMRDA, 29 U.S.C. § 411(a)(2) and Article XX, Section 1 of the By Laws of the Local, his rights to participate in the Local's process under § 101(a)(1) of the LMRDA, 29 U.S.C. § 411(a)(1) for retaliation for cooperation with law enforcement officials in violation of § 609 LMRDA, 29 U.S.C. § 529, for violation of his rights as Business Manager under Article XI of the By Laws of the Local, for retaliation in violation of § 101(a)(5), LMRDA, 29 U.S.C. § 411(a)(5), for violation of the Constitution of UWUA, and for violation of Article II, Section 1 and Article III, Section 1 of the By Laws of the Local, for failure to represent him adequately and for failure to recognize a member in good standing in violation of § 3(f) and (a), LMRDA, 29 U.S.C. § 402(f) and (a), and for violation of the procedures mandated by Articles V, VI and VIII of the By Laws of the Local. The events giving rise to these allegations include the bringing of charges against Helmer for misconduct as business manager, the conduct of the trial before the Trial Committee, its determination to remove Helmer, the determination by the Local that Helmer was no longer a member in good standing, and the refusal of the Local to prosecute a grievance against a Con Ed determination that Helmer had been terminated, among other things.

Helmer moved for preliminary injunction to preserve his union status in connection with the then pending union election of officers including business manager for which office he was a candidate. For reasons set forth in open court at the close of the hearing on January 20, 1989, a preliminary injunction was granted.

Following the election the Defendants moved for summary judgment dismissing certain causes of action and to vacate the preliminary injunction. Helmer moved for leave to amend his complaint which was granted and the Amended Complaint adding a thirty-seventh cause of action and Con Ed as a defendant was filed on June 23, 1989. The defendants renewed their motion for summary judgment seeking dismissal of the Thirtieth Cause of Action alleging a breach of the duty of fair representation, and the Thirty-Seventh Cause of Action alleging violation by Con Ed of its collective bargaining agreement with the Local by refusing to reinstate Helmer to the job and seniority he had achieved at the time his leave of absence commenced. The Defendants again seek to have the preliminary injunction vacated. The motions were heard and fully submitted on July 7, 1989.

The Facts

In 1955, Helmer became an employee of Con Ed and worked for them until 1971 when he became a full-time paid staff employee of the Local. The Local informed Con Edison of Helmer's appointment. Helmer's Con Edison personnel file indicates that Helmer went on leave of absence as an employee of the Local in October, 1971. That leave was extended indefinitely. Article VIII, section 32 of the collective bargaining agreement between the company and the union provides as follows with respect to a leave of absence:

32. Leaves of Absence for Union Officers, etc.:

Members of the Union who have been or are hereafter elected or appointed to office in the Union, and are thereupon certified to the Company by the Union as having to be absent from their regular work for the proper performance of their duties to the Union, shall be granted leaves of absence without pay for the time they hold such office without prejudice to their seniority status and service records up to the time of the granting of such leaves, as provided in Paragraph 28(g) of this contract. When their terms of office expire, such members of the Union shall be reinstated by the Company in jobs and seniorities at least equivalent to those held by them at the times such leaves of absence were first granted.

Section 45(2) of the Con Ed/Local 1-2 contract states:

(2) Employment Preference for Former Employees: In recognition of their experience and training with the Company, employees who resign after January 1, 1962, under creditable circumstances will be given preferred consideration for re-employment provided: (a) suitable job vacancies exist for which they are qualified; (b) their prior employment records were satisfactory; and (c) they are physically qualified for reemployment as determined by an examining physician of the Company.

After the passage of the Employee Retirement Income Security Act ("ERISA") by Congress in 1974, Con Edison, through the Consolidated Edison Pensions and Benefits Plan (the "Plan") provided that an employee with vested rights to any accrued pensions before he turns 65 and who terminates either voluntarily or is terminated by Con Edison is eligible for a deferred pension or "cash out" of such deferred pension if his age plus years of accredited service are less than 75. Under the "cash out" provided for in the Plan, the employee could receive a lump sum payment representing the present value of his pension assuming the normal retirement age. The relevant provision of the Plan is set forth in Appendix A annexed hereto.

Helmer's personnel file states that on April 30, 1979, Helmer resigned for "other causes." Thereafter, Helmer withdrew the funds in his pension account, which included payments through July 1971, and effected a "cash out," by signing a form subtitled "Benefits Statement for Terminating Vested Employee." He received a lump sum of $5,860.40 and signed the following form:

CONSOLIDATED EDISON PENSION AND BENEFITS PLAN INTERIM FORM

BENEFITS STATEMENT FOR TERMINATING VESTED EMPLOYEE

(Applicable when age plus service equals less than 75 at termination)

A. Deferred Pension

Under the provisions of the Consolidated Edison Pension and Benefits Plan, effective August 1, 1975,

Henry J. Helmer XXX-XX-XXXX 66223 Employee's Name Social Security # Employee #

having completed the required years of accredited service on the vesting schedule under this Plan, is entitled to a non-forfeitable right to a pension payable on the first day of the month following the month of your sixty-fifth (65) birthday. The amount of your pension, beginning 3-1-2002 is $2,541.37 annually or $211.78 monthly.

1. A reduced pension payable when you reach an age which, when added to your years of accredited service, 16, is equal to 75 or more. The earliest date on which you may receive this pension is 8-1-95. The amount of your pension, payable beginning on that date, is $119.02 per month.

2. A reduced pension upon your application at any time between 8-1-95 and 3-1-2002 the date pension begins for age 65. This pension will be an amount reduced in accordance with your age at the time pension begins.

The application of a Joint and Survivor Annuity Option factor, to each of the pensions cited above, is required so as to provide, on your death, an annuity to your spouse in the amount equal to 50%

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