Firenze v. National Labor Relations Board et al

Filing 37

Chief Judge Patti B. Saris: ORDER entered ADOPTING IN PART 30 Report and Recommendations re 8 Motion to Dismiss; 8 Motion to Dismiss for Failure to State a Claim; 15 Motion to Dismiss; 18 Motion for Partial Summary Judgment. (Anderson, Jennifer)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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V.
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NATIONAL LABOR RELATIONS BOARD,
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AND NATIONAL LABOR RELATIONS
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BOARD UNION,
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Defendants.
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DON FIRENZE,
Plaintiff

CIVIL ACTION
NO. 12-cv-10880-PBS

ORDER
February 19, 2013
SARIS, C.U.S.D.J.
After a review of Plaintiff's objections and the responses,
the Court adopts the report and recommendation (for the most
part) and dismisses counts I & III.

I agree that Karahalius v.

National Federal of Federal Employees, Local 1263, 438 U.S. 527
(1989) was not sub silencio overruled by Whitman v. Department of
Transportation, 547 U.S. 512 (2006). As such, the Federal Labor
Relations Authority (“FLRA”) has exclusive jurisdiction over the
statutory and contractual duty of fair representation claim.
While the parties appear to agree that the magistrate judge
mistakenly referred to the collective bargaining agreement as
governing the relationship between the union and its members (see
Op. 24-25), the bottom line does not change. See Montplaisir v.
Leighton, 875 F.2d 1, 4 (1st Cir. 1989) (holding plaintiffs’
unfair labor practice claims brought as legal malpractice claims
against union attorneys were preempted by Civil Service Reform

Act (“CSRA”)); Tunnicliff v. Apfel, 160 F. Supp. 2d 147, 149 (D.
Mass. 2001) (“Breach of the duty of fair representation
constitutes an unfair labor practice under the CSRA. . . . Unfair
labor practice complaints are adjudicated by the FLRA. . . . The
reference to contract law in Tunnicliff's complaint is
unavailing.”) (internal citations omitted); Lane v. Wynne, No.
PJM-04-1051, 2006 U.S. Dist. LEXIS 100575, at *14-18 (D. Md. June
23, 2006) (finding CSRA preempted common-law breach of contract
and breach of duty of fair representation claims between employee
and union).

/s/ PATTI B. SARIS
Patti B. Saris
Chief United States District Judge