Weiss v. Legal Aid Soc., 76 Civil 4644.

• Decision Date: 03 May 1978
• Docket Number: No. 76 Civil 4644.,76 Civil 4644.
• Parties: Stephen Norman WEISS, Plaintiff, v. The LEGAL AID SOCIETY, Defendant. The LEGAL AID SOCIETY, Third-Party Plaintiff, v. ASSOCIATION OF LEGAL AID ATTORNEYS, Third-Party Defendant.
• Court: U.S. District Court — Southern District of New York

449 F. Supp. 571

Stephen Norman WEISS, Plaintiff, v. The LEGAL AID SOCIETY, Defendant.

The LEGAL AID SOCIETY, Third-Party Plaintiff, v. ASSOCIATION OF LEGAL AID ATTORNEYS, Third-Party Defendant.

No. 76 Civil 4644.

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

May 3, 1978.

James F. Campise, New York City, for plaintiff.

Proskauer, Rose, Goetz & Mendelsohn, New York City, for defendant; Jonathan L. Sulds, New York City, of counsel.

Sipser, Weinstock, Harper, Dorn & Leibowitz, New York City, for third-party defendant; Jerome Tauber, New York City, of counsel.

OPINION

EDWARD WEINFELD, District Judge.

This action was commenced by plaintiff in the Civil Court of the City of New York and thereafter removed to this Court upon petition by defendant, the Legal Aid Society (the "Society"). The petition alleged that this Court had jurisdiction over the dispute under § 301 of the National Labor Relations Act¹ because the plaintiff "seeks damages alleged to be due as a result of defendant's breach of a collective bargaining agreement with the labor organization of which plaintiff was a member." At the start, this Court sua sponte raised the question of jurisdiction; but upon the then state of the pleadings and representations made by the attorneys, the Court was satisfied that jurisdiction existed. The parties have subsequently engaged in a series of motions, including the assertion by the defendant of a third party claim against the Association of Legal Aid Attorneys (the "Association"). The most recent motions before the Court are third-party plaintiff's motion for summary judgment and third-party defendant's motion to dismiss. After a thorough review of the papers submitted and repeated representations by plaintiff's counsel upon close questioning by the Court at oral argument as to the basis of the claim against defendant, the Court is compelled to dismiss this action for lack of subject matter jurisdiction.²

The contentions and claims of the parties to this action have twisted and turned over the past eighteen months. Yet the stipulated facts contained in the pretrial order dated January 24, 1978 are relatively simple. Plaintiff was hired as an attorney by the Society on August 15, 1974. At that time there was in force a collective bargaining agreement between the Society and the Association which expired by its terms on June 30, 1975. Under the collective bargaining agreement, attorneys received wage step increases for every year of service. Plaintiff completed his year of service on August 25, 1975, two months after the agreement had expired. He resigned from the Society effective April 30, 1976.

At the date of the expiration of the agreement on June 30, 1975, the Society announced a "freeze" on wage step increases. On March 5, 1976, a stipulation was entered into between the Society and the Association which granted retroactive anniversary increases to attorneys then on the staff (which, at that time, included plaintiff) upon the satisfaction of certain conditions. However, no retroactive increases were paid under this stipulation. A second stipulation was executed on July 1, 1976, which extended the 1973-75 agreement for another year and granted retroactive anniversary increases for attorneys still employed by the Society. Plaintiff, who resigned two months before this stipulation was entered into, did not receive any retroactive payments.

Plaintiff claims that he became entitled to a wage step increase on August 25, 1975 after completing one year of service, and that he should have received higher compensation until his resignation in April 1976. Plaintiff's original complaint alleged that the right to a wage increase was based on the 1973-75 collective bargaining agreement. It further stated that at the termination of the agreement the Society "announced that it was unilaterally `freezing' all wage step increases, but that to induce continued employment said increases would be paid retroactively."³

In dismissing plaintiff's original complaint for failure to allege facts justifying a failure to invoke grievance procedures, this Court specifically noted:

Plaintiff's claim to a wage increase, no matter when the alleged breach occurred, is predicated upon the collective bargaining agreement which was in effect when he entered upon his employment with the defendant. This is made patently clear in paragraph 4 of the complaint and by the affidavit of plaintiff's attorney who states that the "right which vested in the plaintiff on August 26, 1975 arose out of a collective bargaining agreement and while the plaintiff was a member of the Union."⁴

Plaintiff's amended complaint, which includes allegations that resort to the grievance procedure would have been futile, upon its face alleges the same theory of recovery as the original complaint. However, further refinement of plaintiff's claims is set forth in the pretrial order. Plaintiff's contention, as stated therein, is that:

On August 26, 1975, plaintiff completed one year of service with defendant and by the terms of the collective bargaining agreement as well as by the statements and representations accompanying the announcement of the wage freeze, he became entitled to a wage step increase . . .. Plaintiff

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