ARMSTRONG v. U.S. POSTAL SERVICE

Filing 23

OPINION. Signed by Judge Jose L. Linares on 7/8/14. (jd, )

NOT FOR PUBLICATION

CLOSED

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ANDREW ARMSTRONG,

Civil Action No. 13-5567 (JLL)

Plaintiff,
OPINION
v.
UNITED STATES POSTAL SERVICE,
Defendants.

LINARES, District Judge.
This matter comes before the Court by way of Defendant’s motion to dismiss Plaintiff’s
Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the
alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56 [Docket Entry
No. 22]. To date, no timely opposition has been filed. No oral argument was heard. Fed. R. Civ.
P. 78.

For the reasons set forth below, Defendant’s motion to dismiss Plaintiff’s Second

Amended Complaint is granted.

Plaintiff’s Second Amended Complaint is dismissed with

prejudice.

BACKGROUND
On August 2, 2013, Plaintiff, proceeding pro se, filed a Complaint in the Superior Court
of New Jersey, Law Division, Special Civil Part, Small Claims Section, seeking $1,050 in unpaid
wages from the United States Postal Service. On September 19, 2013, Defendant United States
Postal Service removed the matter to this Court pursuant to 28 U.S.C. 1442(a)(1), because it
involves a civil action against the United States Postal Service, an agency of the United States.
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The Court has dismissed, without prejudice, two prior versions of Plaintiff’s complaint based on
various pleading deficiencies, including but not limited to, Plaintiff’s failure to meet the Rule
8(a) pleading standard.
On April 28, 2014, Plaintiff filed a Second Amended Complaint. The Court construes
the Second Amended Complaint as alleging: (1) a claim for breach of the collective bargaining
agreement as against the United States Postal Service, pursuant to 39 U.S.C. § 1208(b), which is
the “parallel provision to section 301 of the Labor Management Relations Act, 29 U.S.C. §
185(a), addressing specifically claims ‘for violations of contract between the Postal Service and a
labor organization representing Postal Service employees,’ ”1 and (2) a claim for breach of the
duty of fair representation as against his union, National Association of Letter Carriers (NALC).
This Court has jurisdiction over Plaintiff’s Second Amended Complaint pursuant to 28 U.S.C. §
1331.
The Second Amended Complaint alleges, in particular, that on January 8th of some
unspecified year,2 he was handed a document by the director of Human Resources congratulating
him on his appointment as Transitional Employee at the salary of $22.15 per hour. Plaintiff
further alleges that he was “indeed given that job title and paid that amount until the new union
contract went into effect April 10.” It is further alleged that “later that month, [Plaintiff’s] group
met with Joseph Rutkoski, an area representative for the National Association of Letter Carriers
(NALC), who told us the terms of the new pact. Mr. Rutkoski assured us that, although our job
titles would be changed to City Carrier Assistant when the contract went into effect, we would
not be treated like new hires, that is, paid $15 per hour, but [would rather] transition in at the

1

Podobnik v. U.S. Postal Serv., 409 F.3d 584, 586 (3d Cir. 2005).

2

The Complaint does not allege the year that these events occurred.
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higher hourly rate of $16.25 since we were hired January 8th, two days before the contract’s
signing.” (Sec. Am. Compl. at 2).

Plaintiff goes on to allege that when he discovered that he

wasn’t receiving the anticipated hourly pay rate of $16.25 he brought the matter to the attention
of his union shop steward, Raymond Longo, who indicated that he would contact the NALC area
representative John Dock and ask him to refer his request to the Postal Service’s district office in
Edison. Plaintiff alleges that Mr. Longo later informed him that Mr. Dock’s appeal on his behalf
had been “curtly refused” without explanation. Finally, Plaintiff alleges that “neither Mr. Longo
nor Mr. Dock informed me of my right to file a grievance under the contract—something I, as a
non-career, non-union employee, could not reasonably have been expected to know—nor did the
union offer any further assistance.” (Id. at 3).
On May 27, 2014, Defendant, the United States Postal Service, filed a motion to dismiss
Plaintiff’s Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) or,
in the alternative, for summary judgment pursuant to Rule 56.

Defendant seeks dismissal of

Plaintiff’s claims on the basis that Plaintiff’s failure to exhaust his administrative remedies
precludes him from proceeding with the claims asserted in this matter. To date, no timely
opposition has been filed by the Plaintiff.

LEGAL STANDARD
For a complaint to survive dismissal, it “must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft

v. Iqbal, 556 U.S. 62,

678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In determining the
sufficiency of a complaint, the Court must accept all well-pleaded factual allegations

in

the

complaint as true and draw all reasonable inferences in favor of the non-moving party. See

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Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). Additionally, in evaluating a
plaintiff's claims, generally “a court looks only to the facts alleged in the complaint and its
attachments without reference to other parts of the record.” Jordan v. Fox, Rothschild, O'Brien &
Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

DISCUSSION
The Court begins by noting that Defendant urges the Court to convert its motion to
dismiss into one for summary judgment so as to allow the Court to consider documents
extraneous to the Second Amended Complaint in rendering its decision. The only document that
the Court would need to consider in order to thoroughly assess Defendant’s arguments is a copy
of the relevant collective bargaining agreement between the United States Postal Service and the
National Association of Letter Carriers, AFL-CIO (2011-2016), which is attached as Exhibits A
and G to the Declaration of Austin Phillips. The Court may, however, consider this document
without converting Defendant’s motion into one for summary judgment inasmuch as: (1)
Plaintiff does not dispute its authenticity or applicability, and (2) the agreement—or “new union
contract”—is not only referenced in, but is, in fact, integral to Plaintiff’s Second Amended
Complaint as a whole. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d
Cir.1997) (“A ‘document integral to or explicitly relied upon in the complaint’ may be
considered ‘without converting the motion [to dismiss] into one for summary judgment.’ ”).
The Third Circuit has noted that “section 1208(b) is nearly identical to that of Labor
Management Relations Act section 301; hence, other circuits have used cases interpreting section
301 to interpret section 1208(b).” Podobnik, 409 F.3d at 586; see, e.g., Gibson v. U.S. Postal
Serv., 380 F.3d 886, 889 n. 1 (5th Cir. 2004) (“Although 39 U.S.C. § 1208(b) grants federal

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courts jurisdiction of disputes arising under collective bargaining agreements executed by the
USPS, § 1208(b) is the analogue to section 301(a) of the Labor Management Relations Act, and
the law under § 301 is fully applicable to suits brought under § 1208(b).”). “[W]here a collective
bargaining agreement establishes a grievance procedure, an employee must at least attempt to
exhaust such a process.” Podobnik, 409 F.3d at 594 (citing Vaca v. Sipes, 386 U.S. 171, 185
(1967)). “An employer cannot be held liable for breach of a collective bargaining agreement
unless it can be shown that the employee unsuccessfully sought relief through the union
grievance procedure.” Id.
Article 15, Section 2 of the operative CBA between USPS and NALC establishes a
grievance procedure. (Phillips Decl., Ex. G). At “Informal Step A,” “[a]ny employee who feels
aggrieved must discuss the grievance with the employee’s immediate supervisor within fourteen
(14) days of the date on which the employee or the Union first learned or may reasonably have
been expected to have learned of its cause.” The Second Amended Complaint does not allege
that Plaintiff ever began the grievance procedure set forth in Article 15 of the CBA by, for
example, discussing the grievance with his immediate supervisor. In fact, Plaintiff concedes, in
the Second Amended Complaint, that he did not attempt to utilize the established grievance
process. See Sec. Am. Compl. at 3. To the contrary, Plaintiff maintains that “neither Mr. Longo
[union shop steward] nor Mr. Dock [union area representative] informed me of my right to file a
grievance under the contract—something I, as a non-career, non-union employee, could not
reasonably have been expected to know—nor did the union offer any further assistance.”

Id.

Thus, Plaintiff’s breach of the collective bargaining agreement claim can only proceed if it falls
within one of the following three exceptions to the requirement of total exhaustion: “(1) where
the employer's conduct repudiates contractual remedies; (2) where use of grievance procedures

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would be futile; and (3) where the union breaches its duty by wrongfully refusing to process a
grievance.” Podobnik, 409 F.3d at 594 (citing Clayton v. Int'l Union, U.A.W., 451 U.S. 679, 689
(1981). In the context of claims brought under the LMRA, this third exception, taken with the
original action against the employer, is known as a hybrid § 301 claim. See Albright v. Virtue,
273 F.3d 564, 576 (3d Cir. 2001).
As indicated in the Second Amended Complaint, it is Plaintiff’s position that the third
exception listed above is applicable to his case.

See Sec. Am. Compl. at 2 (“That third

[exception] . . . forms an important basis for my claim.”). The Court notes that Plaintiff relies on
a District of Rhode Island case for the proposition that the third exception carved out by the
United States Supreme Court is “where a union has breached a duty of fair representation owed
to the employee.” Mills v. U.S. Postal Serv., 977 F. Supp. 116, 123 (D.R.I. 1997). The Mills
decision, however, mischaracterizes the scope of the third exception to the total exhaustion
requirement. As stated by the Third Circuit, the third recognized exception is “where the union
breaches its duty by wrongfully refusing to process a grievance.” Podobnik, 409 F.3d at 594
(emphasis added); see Vaca v. Sipes, 386 U.S. 171, 185 (1967) (addressing the third exception to
the total exhaustion requirement and explaining that “[w]e think that another situation when the
employee may seek judicial enforcement of his contractual rights arises, if . . . the union has sole
power under the contract to invoke the higher stages of the grievance procedure, and if . . . the
employee-plaintiff has been prevented from exhausting his contractual remedies by the union’s
wrongful refusal to process the grievance.”).
The Second Amended Complaint does not allege—much less with sufficient factual
support—that Plaintiff’s union refused to process a grievance on his behalf. To the contrary, it is
Plaintiff’s position that his union breached its duty of fair representation by failing to advise him

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of his right to file a grievance—not by refusing to do so. Generally speaking, “[a] breach of the
statutory duty of fair representation occurs only when a union’s conduct toward a member of the
collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Masy v. New Jersey
Transit Rail Operations, Inc., 790 F.2d 322, 328 (3d Cir. 1986). Although it does not appear that
the Third Circuit has directly addressed the issue of whether a union’s failure to notify its
members of their particular rights and obligations under the CBA constitutes a breach of the
union’s duty of fair representation in the context of claims brought against the United States
Postal Service pursuant to 39 U.S.C. § 1208(b), according to the First Circuit, “courts [in the
context of hybrid § 301 claims] have ordinarily held that, while a union’s failure to notify a
grievant may be negligent and in poor judgment, such an omission, without anything more, does
not violate a union's duty of fair representation.” Demars v. General Dynamics Corp., 779 F.2d
95, 98 (1st Cir. 1985); see, e.g., Alicea v. Suffield Poultry, Inc., 1988 WL 412246, at * 8 (D.
Mass. Oct. 17, 1988) (“[I]t would be insupportable for this court to extend the Union’s duty of
fair representation to include an affirmative obligation on the part of the Union to prove that they
individually notified members of the Union of the particular rights and obligations under the
collective bargaining agreement.”). Moreover, the Third Circuit has affirmed the dismissal of a
hybrid § 301 complaint under Rule 12(b)(6) as time-barred, despite plaintiff’s claim that his
union failed to advise him of the limited time in which he had to file suit. See Myers v. AK Steel
Corp., 156 Fed. Appx. 528, 530 (2005).
Plaintiff has given the Court no basis on which to conclude that a union breaches its duty
of fair representation by failing to advise a member of his right to file a grievance, particularly in
the context of claims brought against the United States Postal Service pursuant to 39 U.S.C. §
1208(b), and/or that such a breach should be construed as one of the three exceptions to the total

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exhaustion requirement articulated by the Third Circuit in Podobnik, 409 F.3d at 594. In the
absence of any binding legal authority suggesting otherwise, the Court concludes that Plaintiff
has failed to allege any facts that would allow the Court to draw the reasonable inference that
any of the three exceptions to the requirement of total exhaustion of grievance remedies under a
collective bargaining agreement would apply in this case. See Podobnik, 409 F.3d at 594
(“Appellant does not explain why his failure to press his grievance further (by having the Step 1
Grievance Form annotated) was caused by malfeasance on the part of USPS, nor does he supply
evidence demonstrating that use of the grievance procedure would have been futile or that
NRLCA acted against his interests.”). This is particularly so given that there is no allegation that
the information the union allegedly failed to provide to Plaintiff—information concerning
Plaintiff’s rights and obligations under Article 15 of the CBA—was not readily available to the
Plaintiff.
Thus, it is undisputed that: (1) the operative CBA establishes a grievance procedure, (2)
Plaintiff did not attempt to utilize this grievance procedure to resolve his wage dispute with the
USPS before filing this lawsuit, and (3) Plaintiff’s union did not refuse to process a grievance on
Plaintiff’s behalf. See generally Podobnik, 409 F.3d at 594. In light of the foregoing, and in the
absence of any compelling legal argument to the contrary, Plaintiff cannot sue the USPS for any
alleged breach of the collective bargaining agreement, and consequently cannot sue his union for
any alleged breach of the duty of fair representation. See generally Podobnik, 409 F.3d at 595
(“An employer cannot be held liable for breach of a collective bargaining agreement unless it can
be shown that the employee unsuccessfully sought relief through the union grievance
procedure.”); see, e.g., Harkins v. United States Steel Corp., 354 Fed. Appx. 698, 703 (3d Cir.
2009) (“Harkins cannot prevail against either U.S. Steel or USW on his hybrid claim unless he

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can prove both that U.S. Steel violated the collective bargaining agreement and that USW
breached its duty of fair representation.”). Defendant’s motion to dismiss Plaintiff’s Second
Amended Complaint is therefore granted. Because the Court has already given Plaintiff two
opportunities in which to cure the pleading deficiencies in his claim(s), and given Plaintiff’s
failure to oppose the instant motion, Plaintiff’s Second Amended Complaint is hereby dismissed,
in its entirety, with prejudice.

CONCLUSION
Based on the reasons set forth above, Defendant’s unopposed motion to dismiss
Plaintiff’s Second Amended Complaint [Docket Entry No. 22] is granted.
Amended Complaint is hereby dismissed with prejudice in its entirety.
An appropriate Order accompanies this Opinion.

s/ Jose L. Linares
Jose L. Linares
United States District Judge

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The Second