Kazolias v. Ibew Lu 363, John Maraia
| Decision Date | 11 December 2012 |
| Docket Number | 09 Civ. 7222 (RO)(LMS) |
| Parties | AEYIOU P. KAZOLIAS, KEVIN H. ROXBY, and ROBERT C. SWINGLE Plaintiffs, v. IBEW LU 363, JOHN MARAIA, as Business Manager of LU 363, LIGHTMORE ELECTRIC, and ANDREW H. POPIK as President of Lightmore Electric, Defendants. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
On August 17, 2009, Plaintiffs Aeyiou P. Kazolias, Kevin H. Roxby, and Robert C. Swingle, then proceeding pro se, filed their original complaint against the electrical union to which they belong, the International Brotherhood of Electrical Workers Local Union 363 (herein, "the union"); the union's Business Manager, John Maraia (herein, "Maraia"); their former employer, Lightmore Electric (herein, "Lightmore"); and Lightmore President Andrew Popik (herein, "Popik"). Compl., Docket Entry (herein, "D.E.") 1. The parties stipulated to the dismissal of all claims against defendants Lightmore Electric and Andrew Popik, which Your Honor so-ordered on October 20, 2011. Stipulation and Order of Dismissal, D.E. 64.
Plaintiffs are journeymen wiremen (electricians) whose conflict with their union began when the union failed to resolve their grievances against Lightmore to their satisfactionfollowing Plaintiffs' termination from employment with Lightmore in 2008. See D.E. 1. Plaintiffs allege that the union then failed to refer them to jobs in retaliation for filing grievances against Lightmore, complaints against the union with the National Labor Relations Board and the Equal Employment Opportunity Commission, and this lawsuit.
On August 25, 2010, Plaintiffs, then still pro se, filed an Amended Complaint. Am. Compl., D.E. 39. Plaintiffs raised the following claims:
1) Defendants violated the union's duty of fair representation owed to all union members by denying Plaintiffs job referrals for retaliatory reasons, and through additional retaliatory acts alleged by each plaintiff and described more fully herein;
2) Defendants improperly denied challenged job referrals, and engaged in additional retaliatory acts alleged by each plaintiff, thereby violating Title I of the Labor-Management Reporting and Disclosure Act ("LMRDA");
3) Defendants breached the IBEW International Constitution, a contract between the local and international unions, in violation of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, ("LMRA"), by failing to adhere to the referral procedures in the collective bargaining agreement (herein, the "CBA");
4) Defendants engaged in age discrimination and retaliation under the Age Discrimination in Employment Act (the "ADEA") by denying plaintiffs job referrals, among other retaliatory acts;
5) Defendants engaged in age discrimination and retaliation under New York Executive Law Sections 290-297;
6) Defendants violated Title VII, see D.E. 39 ¶ 1;
7) Defendants violated the Equal Pay Act of 1963, see id.; 8) Defendants violated the Civil Rights Act of 1991, §§102-3, see id.;
9) Defendants retaliated against Plaintiffs in violation of Title I of the Americans with Disabilities Act (the "ADA"), see id.;
10) Defendants violated the Occupational Health and Safety Act ("OSHA"), see id. ¶13;
11) Defendants violated "New York State Private Sector Whistleblower Law," New York Labor Law §§740-41, see id. ¶ 14;
12) Defendants violated the National Electric Code, the "'National Fire Protection Association,' Arc-Flash Art. 70 and 70E," and the fire and building codes of the hamlet of Pearl River, New York, see id. ¶ 15;
13) Defendants violated the implied covenant of good faith and fair dealing, see id. at 1, ¶ 130;
14) Defendants engaged in the intentional infliction of emotional distress upon Plaintiffs, see id. at 1, ¶ 130.
In their opposition to the instant motion, Plaintiffs (who are no longer proceeding pro se) make no mention of claims 6 - 14 above, but do assert the following additional claims which have accrued since their Amended Complaint was filed. Roxby alleges that Defendants disciplined him in violation of Section 609 of the LMRDA in January 2011 by supporting a finding that he had been terminated from a job at Travis Electric for being unqualified, and then by demoting him to third-year apprentice. Plaintiffs also challenge additional job referrals which occurred after August 2010.
Defendants have moved for summary judgment on all claims. Defs.' Mem. of Law, D.E. 77. Plaintiffs oppose this motion and seek to re-open discovery to take the deposition of an additional non-party witness, Rosario Olivieri, Pls.' Rule 56.1 Counter-Statement, D.E. 81, ¶86,and request leave to file a second amended complaint, Pls.' Mem. of Law, D.E. 83, at 14.
For the reasons that follow, I conclude, and respectfully recommend that Your Honor should conclude, that summary judgment be granted in part and denied in part. In addition, I conclude that Plaintiffs' motions to file a second amended complaint and to depose Olivieri should be denied without prejudice.
Local Union 363 refers electricians to jobs with employers who are parties to the CBA, pursuant to the rules for job referral in Article IV of the CBA and additional written referral procedures implementing those rules.2 Under the CBA, the union is the sole source of electricians for any employer bound by the agreement. The union ranks applicants in four groups according to their experience, qualifications, and place of residence, among other factors, where Group 1 consists of the most experienced electricians and Group 4 is the least. Within each group, the union ranks applicants chronologically by the dates on which they registered their availability for employment. This list of applicants, ranked by group and duration of unemployment, is called the "out-of-work" or "referral" list.
Under the CBA, when an employer contacts the union to request a certain number of electricians for a job, the union refers applicants to the employer from this out-of-work list by rank and by chronological order, so that those applicants in Group 1 who have been out of work the longest will be the first to be referred, and those applicants in Group 4 who have been out ofwork for the shortest amount of time will be the last to be referred. However, applicants may be referred out of chronological order under several exceptions contained in the CBA. First, the employer may request only those electricians with particular skills or specialties required for the job, in which case the union refers the first applicant on the out-of-work list who possesses those skills. Second, the CBA contains an age-ratio clause: it mandates that on jobs which require more than five journeymen, at least one of those journeymen must be fifty or older. Third, CBA §2.02 permits employers to choose anyone on the referral list to be the foreman on a job ("The employer shall . . . have no restrictions, except those specifically provided for in the Collective Bargaining Agreement, . . . in determining the need and number as well as the person who will act as foreman. . . "). Fourth, under the union's additional written referral rules, the Business Manager may appoint a steward to a job from anyone on the referral list, if he or she determines one is required. See Olivieri Aff. Ex. B, D.E. 76-4, ¶ 16. (Plaintiffs dispute the validity of these additional referral rules, as described further herein). The Business Manager is tasked with administering the referral system.
In December 2007, the union referred Plaintiffs to a job with Lightmore at the Verizon Blue Hill jobsite. Plaintiffs were terminated on January 25, 2008. On or about February 6, 2008, Plaintiffs filed a list of ten grievances against Lightmore, including failure to comply with safety protocol, as well as the claim that, as a result of their termination, no journeyman fifty or older remained on the job, in violation of the age-ratio provision of the CBA. See D.E. 39-3 at 24 - 33. The union's representative for that area, Gil Heim, conducted an investigation of the grievances and submitted a written report of his findings to Maraia on February 25, 2008. See D.E. 39-3 at 20-23. Based on his investigation, Heim concluded that the majority of thegrievances lacked merit. In particular, he determined that Lightmore had not violated the age-ratio clause because after Plaintiffs were terminated, there were fewer than five journeymen assigned to the job, so the clause did not apply.
Nonetheless, the union secured concessions from Lightmore on all of the grievances Heim concluded had merit, as well as on several grievances Heim had found lacked merit. Lightmore agreed to hire a journeyman over age fifty. The union also placed a shop steward at the job site to prevent future violations. The resolution of the grievances was memorialized in a letter from Lightmore President Andrew Popik to Maraia, and forwarded to the Plaintiffs. See McGovern Aff. Ex. 25, D.E. 75-45, at 2 - 3.
On February 26, 2008, Maraia met again with Plaintiffs and presented the resolution the union had reached with Lightmore. Maraia asked Plaintiffs if they wanted to return to work for Lightmore. According to Defendants, Plaintiffs declined the offer. Plaintiffs, on the other hand, state that all but Swingle, who was noncommittal, were willing to return to work for Lightmore, but that Maraia deterred them from doing so. D.E. 81 ¶33 (p). Plaintiffs further contend that Maraia informed them that charges could be filed against them, ostensibly by Lightmore, were they to persist with their complaints against their former employer after the resolution had been reached. Id.
On June 4, 2008, Roxby filed unfair labor practice charges with the National Labor Relations Board against Lightmore and the union. See D.E. 70 ¶35. Roxby claimed that 1) the union had failed to process the...
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