the Local 863 agreement. However, Local 169 challenged the jurisdiction of Local 863 because it had a prior labor agreement with A&P and had previously represented the bargaining unit at Florence. On August 10, 1979, by written agreement and in settlement of the jurisdictional dispute, Local 863 ceded jurisdiction over the Florence warehouse complex to Local 169. In turn, Local 169 agreed to accept the terms of the Transco collective bargaining agreement then in effect at Florence. Transco agreed to hire employees laid off from another A&P site, based on a ratio of one for every three new hires at Florence. It was agreed that the former A&P employees would be credited with their A&P length of service only for vacation purposes. That labor agreement is presently in effect and will expire by its terms on October 24, 1981.
Plaintiff does not allege in what way, if any, the seniority provisions of the Transco labor agreement differs from the old A&P labor agreement. However, what is evident from plaintiff's complaint is that on August 10, 1979, a separate employing entity, Transco, became his employer for purposes of labor relations and negotiated a new labor agreement with Local 169, plaintiff's previous collective bargaining agent, which differed from the prior A&P agreement. Part of the consideration for the new agreement was Transco's undertaking to hire some of Local 169's laid off union members. However, any such new hires would have been junior seniority-wise to all incumbents including plaintiff.
Whether Transco is considered a new employer or a successor employer, the resulting bargaining obligations are the same. A new employer has a clear duty to bargain with an elected or recognized bargaining agent. Similarly, a successor employer has a duty to bargain if the union requests it to do so. The union is not automatically bound by the substantive provisions of a collective bargaining agreement negotiated with the predecessor employer. Russom v. Sears & Roebuck and Co., 558 F.2d 439 (8th Cir. 1977) cert. denied, 434 U.S. 955, 98 S. Ct. 481, 54 L. Ed. 2d 313 (1977); NLRB v. Pick-Mt. Laurel Corp., 436 F. Supp. 1342 (D.C.N.J.1977). Here, on August 10, 1979, Local 169 specifically negotiated a labor agreement with Transco to cover the new Transco operation. Both parties were legally bound thereby. There is no allegation or evidence that the acts of negotiation and agreement between Local 169 and Transco were contrary to any federal labor law, or the union's constitution or by-laws. It is well established that in the absence of a limitation, or employer knowledge of a limitation, placed upon the power of a collective bargaining agent, there is no legal impediment to an employer agreeing with a union to change substantive terms of an existing agreement. Indeed, in such a case there is no legal requirement that the negotiated agreement even be submitted to the membership for ratification because a duly designated labor representative has a statutory duty to make binding agreements with respect to wages, rules and other working conditions. Goclowski v. Penn Central Transportation Co., 571 F.2d 747, 759 (3d Cir. 1977); International Brotherhood of Teamsters Local 310 v. NLRB, 190 U.S. App. D.C. 279, 587 F.2d 1176, 1182 (D.C.Cir.1978); Baker v. Newspaper & Graphic Communications, 461 F. Supp. 109 (D.D.C.1978). A unilateral failure of a union to follow its own rules is an insufficient basis to invalidate agreements entered into by a union and an employer. Kline v. Florida Airlines, Inc., 496 F.2d 919 (5th Cir. 1974).
Plaintiff is hardly in a position to complain that Transco negotiated a collective bargaining agreement with Local 169. The parties were free to do so. Furthermore, even if A&P had remained the employer, in the absence of an allegation that Local 169 was specifically limited in its collective bargaining authority, and that A&P knew this limitation, no claim is stated since the parties are able to alter or change an existing labor agreement at any time. Ford Motor Co. v. Huffman, supra.
Plaintiff alleges that the underlying agreement of August 10, 1979, with Transco has the effect of circumventing the seniority and layoff provisions of the prior A&P agreement, that a grievance
was filed and denied, and that the union refused to process it after the critical denial. Assuming that the grievance complained about the fact that the parties negotiated the August 10, 1979, agreement, it amounts to no more than that Transco and Local 169 negotiated a labor agreement which differed in some respects from the terms of the prior A&P agreement.
Plaintiff also alleges that Transco subsequently entered into an operations agreement with Plus Discount Stores, a subsidiary of A&P, to operate the Florence warehouse and that the Plus Discount Stores/Transco operations agreement is solely a subterfuge to circumvent the former A&P labor agreement. However, plaintiff makes no allegation and presents no evidence that Plus Discount is party to any collective bargaining agreement.
Such allegations, including that of subterfuge, at best, are but conclusory statements and are not actionable. Hubicki v. ACF Industries, Inc., 484 F.2d 519 (3d Cir. 1972). Even assuming it to be an employer for purposes of labor relations, the mere assertion that Plus Discount Stores is a subsidiary of A&P, even if wholly owned, does not suffice to bring it within the ambit of being a single employer. General Teamsters Local 249 v. Pem Builders Supply Co., 461 F. Supp. 1211 (E.D.Pa.1978). Moreover, Plus Discount is not alleged or shown to be party to a labor agreement different from that which was negotiated between Transco and Local 169. As previously discussed, that August 10, 1979, agreement is presumptively proper. If proper when made, the terms of the labor agreement remain binding regardless of the names of the parties on the document.
The court notes that the labor agreement which plaintiff would seek to enforce expired by its terms on February 2, 1980. Since that time, the parties to the expired labor agreement would certainly have been free, even expected, to renegotiate an expired agreement. Since plaintiff has failed to allege or demonstrate any injury to established contract rights occurring prior to the expiration date of the old A&P agreement, any claim for damages is now moot.
For the above reasons, the court concludes that plaintiff failed to state a claim upon which relief may be granted against the defendant employers under Section 301(a). However, presently before me is a motion for summary judgment. Beyond the factual allegations of the complaint, plaintiff has presented facts only through an affidavit which fails to clarify his employment status or state how, if at all, he may have been injured. Plaintiff has had full opportunity to develop facts from which genuine issues of fact may have arisen but plaintiff has not done so. Plaintiff was given ample opportunity to present material pertinent to a meritorious defense to defendants' motion for summary judgment, but not even a suggestion of a genuine issue of material fact has been presented to the court. Having taken all of plaintiff's allegations as true, with every favorable inference which may be drawn, and finding no genuine issue of material fact, an Order granting summary judgment in favor of the party defendants shall be entered.