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PAGANO v. BELL ATLANTIC-NEW JERSEY

December 19, 1997

RICHARD PAGANO, Plaintiff,
v.
BELL ATLANTIC-NEW JERSEY, INC. and LOCAL 827, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS AFL-CIO, Defendants.



The opinion of the court was delivered by: WALLS

 Walls, District Judge

 Plaintiff Richard Pagano ("Pagano") brought suit against his former employer, Bell Atlantic-New Jersey, Inc. ("Bell Atlantic"), and his union, Local 827, International Brotherhood of Electrical Workers AFL-CIO ("Union" or "Local 827"). Plaintiff alleges that Bell Atlantic wrongfully discharged him and that the Union breached its duty of fair representation ("DFR claim") by processing his grievance in a perfunctory manner and by not seeking arbitration. Before the Court is defendants' motion to dismiss all counts of the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure because of untimeliness and preemption. Pagano opposes this motion and has filed a cross-motion for leave to amend his Complaint under Rule 15(a). The Court decides these motions without oral argument pursuant to Rule 78. For the reasons which follow, the Court dismisses the plaintiff's original Complaint but grants his motion to file an Amended Complaint against the Union which must be limited to his new allegation that the Union breached its duty of fair representation by failing to convey a settlement offer made by Bell Atlantic during negotiations.

 FACTUAL AND PROCEDURAL BACKGROUND

 The following is a recital of the facts as they are set forth in plaintiff's original Complaint. Pagano was employed by Bell Atlantic for approximately twenty-two years before this controversy arose. Pagano and other Bell Atlantic employees were represented by Local 827, with whom Bell Atlantic had entered into a collective bargaining agreement ("CBA") effective May 21, 1995. Article XI of the CBA provides for a grievance procedure to address employee complaints. Article VIII states that once these grievance procedures have been exhausted, the Union may submit a claim for wrongful discharge without just cause to arbitration.

 In April 1996, Pagano received a jury summons which notified him that he was required to serve on jury duty for the week beginning April 24. After serving on April 24 and April 25, Pagano was released when he informed the court that he had performed jury service within the last three years. The plaintiff did not work those two days and contends that his time sheets for those days reflected that he had been on jury duty.

 Counsel for plaintiff also asked the Union to forward all documentation related to the Union's efforts to grieve Pagano's claim. In his brief and proposed Amended Complaint, Pagano contends that he did not receive responses to his requests for information until April 8, 1997, almost five months after the original request was delivered.

 On June 18, 1997, Pagano filed a four-count Complaint against Bell Atlantic and Local 827 in the Superior Court of New Jersey. The First Count alleges that the Union breached its duty of fair representation by "processing Pagano's grievance in, at best, a perfunctory manner, failing to purposefully investigate the matter, refusing to engage in meaningful discussions with Bell Atlantic for purposes of seeking Pagano's reinstatement, and ultimately refusing to arbitrate his discharge . . . ." Compl. P 20. The Second Count charges that Bell Atlantic breached the CBA by wrongfully discharging the plaintiff without just cause. The Third Count is for breach of the implied covenant of good faith and fair dealing, and the last count alleges breach of contract based on Bell Atlantic's failure to abide by its progressive disciplinary policy, a policy that plaintiff alleges is an implicit provision of the CBA. Defendants removed the case to this Court.

 LEGAL STANDARD

 On a Rule 12(b)(6) motion, the court is required to accept as true all allegations in the Complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). The question is whether the plaintiff can prove any set of facts consistent with his allegations that will entitle him to relief, not whether he will ultimately prevail. Hishon v. King and Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984).

 While a court will accept well-pleaded allegations as true for the purposes of the motion, it will not accept legal or unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegation. See Miree v. DeKalb County, Ga., 433 U.S. 25, 27 n.2, 53 L. Ed. 2d 557, 97 S. Ct. 2490 (1977); Washington Legal Found. v. Massachusetts Bar Found., 993 F.2d 962, 971 (1st Cir. 1993); Violanti v. Emery Worldwide A-CF Co., 847 F. Supp. 1251, 1255 (M.D. Pa. 1994). Moreover, the claimant must set forth sufficient information to outline the elements of his claims or to permit inferences to be drawn that these elements exist. See Fed. R. Civ. P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 ANALYSIS

 I. WHETHER THE CLAIMS FOR BREACH OF THE CBA AND BREACH OF THE DUTY OF FAIR ...


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