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BRUEN v. LOCAL 492

March 6, 1969

Virgele BRUEN, Plaintiff,
v.
LOCAL 492, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS,AFL-CIO, and Charles Garland, individually and in his official capacity as president of Local 492, and Newark Lamp Plant Division of General Electric Company, Defendants



The opinion of the court was delivered by: AUGELLI

Plaintiff instituted this action *fn1" under Section 301(a) of the National Labor Relations Act (Act), 29 U.S.C.A. ┬ž 185(a), for the restoration of certain seniority rights and back pay incident thereto. She claims that Local 492 of International Union of Electrical, Radio and Machine Workers, AFL-CIO (Local 492), through its Executive Board, and the Newark Lamp Division (Newark Lamp) of General Electric Company (General Electric), arbitrarily, maliciously and in bad faith deprived her of these seniority rights by adopting, on November 26, 1958, an allegedly discriminatory 'Local Agreement'.

The record discloses that plaintiff was hired by the Seaboard Lamp Division (Seaboard) of General Electric on May 11, 1943 and was employed there until June 23, 1961, at which time she was laid off. Thereafter, on October 26, 1961, plaintiff was hired by and went to work for the Newark Lamp Division of General Electric. Seaboard shut down operations in 1962, but prior thereto both Seaboard and Newark Lamp were located in the same building in Newark, New Jersey. Local 492 represented the employees of both Divisions. When plaintiff was hired at Newark Lamp, she was given a seniority date of October 26, 1961. This date was assigned to plaintiff as a consequence of the local agreement previously mentioned, *fn2" and affected her rights in matters of layoff, promotion and upgrading. That agreement, insofar as is here pertinent, provides:

 'D. Total length of continuous service and service credits as used throughout this Agreement shall mean a total length of continuous service and service credits acquired in the General Electric Company except that any employees hired subsequent to the signing of this Agreement who, at the time of hiring are on layoff from other General Electric components will have as their continuous service and service credits only such continuous service credits as are acquired at Newark Lamp Plant.'

 Plaintiff alleges that the local agreement wrongfully deprived her of the seniority rights she had earned as an employee of Seaboard; that said agreement was invalid since it was not approved as required by Article XXI of the National Agreement, *fn3" nor ratified by the membership of Local 492; that said Local and Newark Lamp acted in bad faith and with malice toward her; and that Local 492 breached its duty of fair representation in negotiating the local agreement.

 Defendants assert two defenses to the action: lack of jurisdiction, and the statute of limitations.

 This Court is of the opinion that the allegations made by plaintiff are sufficient to confer jurisdiction under Section 301(a) of the Act. See Chasis v. Progress Manufacturing Company, 382 F.2d 773 (3 Cir. 1967).

 As to the defense of the statute of limitations, the period fixed by state law controls. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (UAW) AFL-CIO v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S. Ct. 1107, 16 L. Ed. 2d 192 (1966); Falsetti v. Local Union No. 2026, United Mine Workers, 355 F.2d 658 (3 Cir., 1966). The New Jersey statute, N.J.S.A. 2A:14-1, provides that every action at law for any tortious injury to the rights of another or for recovery upon a contractual claim or liability 'shall be commenced within 6 years next after the cause of any such action shall have accrued'. Defendants argue that, in view of the fact that plaintiff is alleging a breach of the National Agreement, her cause of action accrued on November 26, 1958, when the local agreement went into effect. If this were so, plaintiff's action would be barred, since the complaint was not filed until more than six years later. However, plaintiff claims that the alleged breach of the National Agreement was part and parcel of Local 492's breach of duty of fair representation, which arguably could continue to a date beyond November 26, 1958. To fix such date, on this record, is difficult and no attempt will be made to do so. The Court will assume, without deciding, that plaintiff's action was not barred by the statute of limitations.

 Consideration will now be given to the merits of plaintiff's claim. There is no basis to support plaintiff's contention that the local agreement resulted in a wrongful deprivation of her seniority rights. Seniority is not an incident of employment. Seniority rights arise solely from the contractual arrangements of the parties. Aeronautical Industrial District Lodge 727 v. Campbell, 337 U.S. 521, 69 S. Ct. 1287, 93 L. Ed. 1513 (1949); N.L.R.B. v. Whiting Milk Corporation, 342 F.2d 8 (1 Cir. 1965). In pertinent part, Article XI of the National Agreement provides:

 '1. Whenever there is a reduction in the working force or employees are laid off from their regular jobs, total length of continuous service, applied on a plant, department, or other basis as negotiated locally, shall be the major factor determining the employees to be laid off or transferred (exclusive of upgrading or transfers to higher rated jobs). However, ability will be given consideration. (Italics supplied.)

 'Similarly, in all cases of rehiring after layoff, total length of continuous service, applied on a plant, department, or other basis as negotiated locally, shall be the major factor covering such rehiring if the employee is able to do the available work in a satisfactory manner after a minimum amount of training. (Italics supplied.)

 '2. Since the number of employees in the individual bargaining units covered under this Agreement varies from less than 50 to more than 10,000, each Local shall negotiate with local Management a written Agreement covering the layoff and rehiring procedure for the employees represented by the Local.'

 The quoted language of the National Agreement clearly provides for plant-wide and not company-wide seniority. Furthermore, Article XI does not spell out the basis on which seniority is to be computed, but merely states the general principle that seniority is to be the major factor governing layoffs and rehiring. Section 2 of Article XI expressly leaves the computation of seniority to the local unions and to local management. This conclusion was reached in the case of Local 201 International Union of Electrical, Radio and Machine Workers, AFL-CIO v. General Electric Company, 163 F.Supp. 741 (D.Mass.1958), aff'd 262 F.2d 265 (1 Cir. 1959), where this very Article XI was examined and considered. *fn4" This Court fully concurs in that conclusion. The National Agreement afforded plaintiff no company-wide seniority rights.

 Contrary to plaintiff's contention, the Court further finds that the local agreement of November 26, 1958, was not negotiated in violation of the National Agreement or the Constitution of Local 492. Article XXI of the National Agreement, headed ...


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