Clergeau v. Local 1181, Amalgamated Transit Union
Clergeau v. Local 1181, Amalgamated Transit Union
Opinion of the Court
SUMMARY ORDER
Plaintiff Marc-Elie Clergeau sued defendant Local 1181, Amalgamated Transit Union, AFL-CIO (“Local 1181”) for breach of its duty of fair representation by declining to pursue a grievance against Clergeau’s employer, Lonero Transit, Inc. (“Lonero”). Clergeau now appeals the dismissal of his complaint pursuant to Fed. R.Civ.P. 12(c). We review a district court’s Rule 12(c) dismissal de novo. See Morris v. Schroder Capital Mgmt. Int’l, 445 F.3d 525, 529 (2d Cir. 2006). In doing so, we assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
Clergeau first argues that the district court erred in not recognizing that he had a meritorious grievance under the 1997 collective bargaining agreement (“CBA”) in effect at the time his former employer, United Transit, Inc., unlawfully fired him in 1999. This argument is without merit. Clergeau’s grievance arose in 2005, when Lonero hired him as a new employee rather than as a twelve-year veteran. The 2002 CBA in effect at that time, which superseded the 1997 CBA, thus controls the questions of seniority and salary at issue in this case.
Clergeau next contends that the district court “erred in holding that there was a break in service rendering [his] grievance without merit.” Appellant’s Br. at 12. Specifically, he submits that section V of the 2002 CBA, which governs seniority and tenure, is inapplicable to him because he “was illegally fired and was not offered any work to follow.” Id. at 20. A question might arise as to whether the gap in Clergeau’s employment between his firing in 1999 and the successful conclusion of his unlawful termination action in 2004 would constitute a “break in service” under the 2002 CBA if Clergeau had sought employment as a union driver for the New York City Department of Education (“DOE”). See Clergeau v. Local 1181, Amalgamated Transit Union, AFL-CIO (Clergeau I), No. 99 Civ. 8260, at 6 (E.D.N.Y. Mar. 8, 2004) (noting Clergeau’s ability to find union position as driver because he was terminated without just cause). But that question is mooted by Clergeau’s independent search for employment, including non-union work, in 2005. See Clergeau v. Local 1181, Amalgamated
We have considered Clergeau’s other arguments on appeal and conclude that they are without merit. Accordingly, we AFFIRM the judgment of the district court.
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