Tucker v. Defense Mapping Agency

• Decision Date: 29 April 1985
• Docket Number: Civ. A. No. 84-0387-S.
• Citation: 607 F. Supp. 1232
• Parties: Robert E. TUCKER and Peter Marx, Plaintiffs, v. DEFENSE MAPPING AGENCY HYDROGRAPHIC/TOPOGRAPHIC CENTER and Local 1884, American Federation of Government Employees, AFL-CIO, Defendants.
• Court: U.S. District Court — District of Rhode Island

607 F. Supp. 1232

Robert E. TUCKER and Peter Marx, Plaintiffs, v. DEFENSE MAPPING AGENCY HYDROGRAPHIC/TOPOGRAPHIC CENTER and Local 1884, American Federation of Government Employees, AFL-CIO, Defendants.

Civ. A. No. 84-0387-S.

United States District Court, D. Rhode Island.

April 29, 1985.

Richard B. Applebaum, Mitchell Riffkin, Rosedale & Riffkin, Providence, R.I., for plaintiffs.

Lincoln C. Almond, U.S. Atty., Everett C. Sammartino, Asst. U.S. Atty., Providence, R.I., for Defense Mapping Agency Hydrographic/Topographic Center.

Gay Snyder, New Brunswick, N.J., Mark Roth, Washington, D.C., Letts, Quinn & Licht and Steven Linder, Providence, R.I., for Local 1884, American Federation of Government Employees, AFL-CIO.

OPINION AND ORDER

SELYA, District Judge.

The plaintiffs, Robert E. Tucker and Peter Marx, both disgruntled workers, have sued their employer, Defense Mapping Agency Hydrographic/Topographic Center (DMA), and their union, Local 1884, American Federation of Government Employees, AFL-CIO (Local 1884 or the Union), asserting a potpourri of remonstrances arising out of a temporary change in the hours of duty policy which prevailed at their place of employment. The plaintiffs have attempted to invoke this court's federal question jurisdiction. 28 U.S.C. §§ 1331, 1346. Tucker and Marx seek recompense for forfeited leave time: $1,320 for Tucker and $110 for Marx. They also pray for exemplary damages, attorneys' fees, and costs. The defendants variously contend that the plaintiffs have failed to exhaust administrative remedies; that the court lacks subject matter jurisdiction; that the action is time barred; and that, in all events, the plaintiffs' jeremiad is utterly meritless.

I. TRAVEL.

The plaintiffs filed suit in this court on July 24, 1984. After much procedural skirmishing (none of which is germane at this moment), the plaintiffs filed an amended complaint. They postulated a myriad of claims, e.g., breach of the covenants of a collective bargaining pact; transgressions of federal labor law; infidelity to the duty of fair representation; deprivation of due process and of rights secured by the United States Constitution, Amendments V and XIV; and, for good measure, a pendent claim (never seriously urged or sensibly articulated) of abrogation of rights ceded by the Rhode Island Constitution.¹ The defendants answered and lost little time in moving for summary judgment.

This court has adopted a Local Rule in a prophylactic effort to clear the air when summary judgment initiatives take wing. See D.R.I.L.R. 12.1. In this case, that rule was honored more in the breach than in the observance. So, when oral argument was first heard on January 30, 1985, the record was murky. Unwilling to venture forth into such a Serbonian Bog, the court suspended arguments and directed that the parties undertake supplemental filings aimed at identifying what (if any) genuine issues of material fact lurked in the shadows. See Tucker v. Defense Mapping Agency Hydrographic/Topographic Center, No. 84-0387 (D.R.I. Feb. 12, 1985) (order specifying further compliance with Local Rule 12.1).

The parties complied with this mandate, each essaying appropriate incremental filings. Oral argument was resumed and completed on March 18, 1985. The court took the motions for brevis disposition under advisement. And, this rescript comprises the court's findings and conclusions in respect thereto.

II. THE SUMMARY JUDGMENT STANDARD.

The law is settled beyond peradventure as to the composition of the Fed.R.Civ.P. 56 yardstick by which the instant motions must be measured. To honor such a motion, the nisi prius court must be fully satisfied that there is no bona fide dispute as to any material fact issue and that the movant is entitled to relief as a matter of law. Advance Financial Corp. v. Isla Rica Sales, 747 F.2d 21, 26 (1st Cir.1984); Gonsalves v. Alpine Country Club, 563 F.Supp. 1283, 1285 (D.R.I.1983), aff'd, 727 F.2d 27 (1st Cir.1984). In so doing, the district judge must view the evidence in the light most beneficial to the nonmovants, Isla Rica, 747 F.2d at 27; Stepanischen v. Merchants Despatch Transportation Corp., 722 F.2d 922, 928 (1st Cir.1983), drawing therefrom all reasonable inferences in their favor. Isla Rica, 747 F.2d at 27; Santoni v. Federal Deposit Insurance Corp., 677 F.2d 174, 177 (1st Cir.1982). "In short, relief under Rule 56 is available only if the movant has demonstrated that the tracks are clear and that they run only in one direction." Railroad Salvage of Connecticut Inc. v. Railroad Salvage, Inc., 561 F.Supp. 1014, 1018 (D.R.I.1983).

At bottom, the case at bar raises delicate issues of, inter alia, preemption, exhaustion, and limitations in the federal employment sector. Inasmuch as the litigation turns on jurisdiction and timing, the particular facts of the brouhaha, taken in actual context, are of critical importance. The court gleans the factual predicate necessary for its decision from the pleadings, affidavits, documentary proffers, and D.R. I.L.R. 12.1 statements, taken in their ensemble, relying in the first instance on uncontroverted facts. Contested but irrelevant facts have been winnowed out.² Where, and to the extent that, discrepancies exist, the court has viewed any such amphibolous material in the light most hospitable to the nonmovants. In this spirit, then, the court recounts the salient facts of record.

III. FACTS.

DMA is an independent federal agency within the United States Department of Defense. Tucker and Marx are and were employed by DMA as nonsupervisory employees. Local 1884 has been, at all times material hereto, the exclusive representative of a bargaining unit comprised of all nonsupervisory employees of DMA (including the plaintiffs).

In October of 1981, Local 1884 and DMA entered into a collective bargaining pact (the Agreement) which remained in effect throughout the currency of the events described below. Article XVII of the Agreement, entitled "HOURS OF DUTY," stipulated in pertinent part that:

The basic work week will consist of five daytime tours, beginning at 6:00 a.m. and ending at 5:30 p.m. An employee may work his/her eight hour tour at any time between 6:00 a.m. and 5:30 p.m.

* * * * * *

A tour of duty will not be established or modified solely for the purpose of avoiding the payment of holiday, premium, or overtime pay.

It is agreed that when shifts are to be changed, a minimum notice of 15 days will be given to each employee affected.

* * * * * *

Any changes mutually agreed to in either the day or hours of duty, during which work is required, will continue for a minimum period of at least one pay period.

Id. at §§ 1(b), 2(a), 2(b), 5.

Early in 1983, DMA's Rhode Island offices were undergoing renovations. On April 18, 1983 Local 1884 and DMA entered into a memorandum of understanding which temporarily changed the timing of the employees' tours of duty. The modification required workers to conclude their business by 4:30 p.m. (instead of 5:30 p.m., as had theretofore been the case), and meant that they had to start work by 8:00 a.m. (not 9:00 a.m., as had been prior practice) to complete their daytime tours. DMA furnished written notification of the provisional rule to all employees on May 5, 1983.

The plaintiffs were unhappy with the shift in hours. On or about May 11, Tucker informed his first level supervisor, William Merola, that he intended to file a grievance. At about the same time, Tucker discussed his putative grievance with his second level supervisor (in Merola's presence). Some five days later, Tucker filed a written grievance with Merola; though received, it was neither allowed nor denied in so many words at the first step. Instead, Merola told Tucker that the grievance could not be handled at that plateau; he would forward it to Oliver Charlebois, the second level supervisor.

Merola accomplished the promised transmittal to Charlebois by letter dated May 16, 1983. Within a day or so thereafter, Tucker personally filed a grievance with his second level supervisor. On May 26, Charlebois acknowledged receipt of the grievance and stated that it had been given to "the responsible union official." On its face, Charlebois' letter does not purport to be a disposition of Tucker's grievance; instead, it notes the need for some inevitable inconvenience because of the renovations. The plaintiffs contend that, on May 26 or thereabouts, Charlebois gave a copy of the grievance to Local 1884; the union disclaims any such supposed fact. But, Local 1884 admits that Charlebois had received Tucker's step two grievance.

The full extent of Tucker's attempts to seek union assistance remains nebulous on this record. Local 1884 and DMA both claim that Tucker never specifically invoked union assistance. And, there is no direct evidence to the contrary. Charlebois, in his affidavit, maintains that Tucker affirmatively eschewed Local 1884's aid. But, much of this uncertainty is beside the point. What is crystal clear is that no further action was taken by either DMA or Local 1884 on Tucker's grievance, and that Tucker never pressed for such attention.

While Tucker was fiddling, Marx, too, took bow in hand. On May 5, he lodged a first-step grievance with Merola. Marx concedes that he did not push this grievance, personally, with any local 1884 official, but he claims that Charlebois, in an "informal" meeting, indicated that he would forward the remonstrance to a suitable union official. Marx claims that, later the same day, William Trzyzewski, a Local 1884 representative, handed Marx's grievance back to him with the pithy observation that "it was going nowhere". Though the Union terms this account apocryphal, the court, for the limited purpose of Rule 56 consideration, accepts the plaintiffs' version. Later in time, Marx met with Local 1884 representatives concerning the merits of the grievance. Marx relates that Trzyzewski and Larry Zambaranno, another Local 1884...