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Dinapoli v. International Alliance of Theatrical Stage Employees Local 8

May 19, 2010

SALVATORE DINAPOLI, MICHELLE NEESE, AND CHRISTOPHER FLYNN, PLAINTIFFS,
v.
INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES LOCAL 8, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Robert F. Kelly, Sr. J.

MEMORANDUM

Presently before the Court are Defendants The Walnut Street Theatre (the "Theatre"), Roy Backes ("Backes"), and Bernard Havard's ("Havard") (collectively, the "Theatre Defendants") Motion to Dismiss and Defendants International Alliance of Theatrical Stage Employees Local 8 (the "Union"), Michael Barnes ("Barnes"), Francis O'Shea's ("O'Shea") (collectively, the "Union Defendants") Motion for Judgment on the Pleadings. For the following reasons, Union Defendants' Motion is granted and Theatre Defendants' Motion is granted in part and denied in part.

I. BACKGROUND

The Plaintiffs in this matter, Salvatore DiNapoli ("DiNapoli"), Michelle Neese ("Neese"), and Christopher Flynn ("Flynn") are all former employees and members of the Union. The terms and conditions of Plaintiffs' employment, including the termination procedures and guidelines, were set forth in a Collective Bargaining Agreement ("CBA") between the Theatre and the Union.

As part of her prior job duties at the Theatre, Neese recorded the times employees at the Theatre were at work, reviewed fellow Union members' timesheets and submitted the timesheets to the Theatre's production office. In May of 2008, Neese uncovered alleged inaccurate timekeeping and payroll procedures being conducted at the Theatre by other Union employees -- including the "ghosting" of timesheets where employees or union officials indicated that they had worked for a time period when they had not.

Neese raised her concerns over these alleged inaccuracies and "ghosting" to Backes, the Theatre's Production Manager, who informed Neese that the alleged inaccuracies were approved. In addition, Neese also alerted Barnes, the Business Manager for the Union, to these problems. Finally, Neese went further up the chain of command and reported the timesheet issues to Havard, the Theatre's President and Producing Artistic Director.

According to the Complaint, Neese's co-workers and management at the Theatre and Union disapproved of Neese's decision to report the purported issues. Moreover, Union management allegedly blamed DiNapoli and Flynn for Neese's decision. The Complaint pleads that DiNapoli, Neese and Flynn were subjected to a pattern of discriminatory and retaliatory treatment by their superiors after Neese took action. Specifically, they were allegedly subjected to conduct such as unwarranted reprimands, decreased work opportunities, and verbal harassment.

Section 7.1 of the unamended CBA is quoted in the Complaint. It states: Seasonal Employees employed as of the beginning of a season may only be terminated during the season for cause. During the season a written paper trail will be established by the Production Manager and shared with the Seasonal Employee as performance issues arise throughout the season. Within the two-week period following the close of the season, the Employer shall advise the Union and each Seasonal Employee as to whether employment will be renewed during the following season, and decisions by the Employer not to renew employment shall be supported by a paper trail outlining the areas of dissatisfaction. (Compl. ¶ 40.) According to Plaintiffs, Defendants attempted to circumvent the CBA's approval process in order to create an addendum (the "Addendum") to the CBA to allow Defendants to terminate Plaintiffs' employment without the need to adhere to the terms and conditions outlined in Section 7.1 of the CBA. In addition, the Plaintiffs allege that Defendants misrepresented the time frame of the Addendum in order to terminate Plaintiffs pursuant to more relaxed rules.

Specifically, the Addendum purported to modify the CBA by replacing the language in Section 7.1 of the CBA with the following language that eliminated the need for a "paper trail":

Seasonal Employees employed as of the beginning of the season may only be terminated during the season for cause. Within the two-week period following the close of the season, the Employer shall advise the Union and each Seasonal Employee as to whether employment will be renewed during the following seasons, and decisions by the Employer not to renew employment shall not be arbitrary or discriminatory. (Id. ¶ 43.)

In regard to the timing of the Addendum, Plaintiffs allege that the Union's May 2009 newsletter, dated April 25, 2009, notified Union members of the Theatre's request to open the CBA. According to the Complaint, the Union claims that on May 6, 2009, at a Union general meeting, a vote was taken to allow opening of the CBA. Plaintiffs allege that Theatre management and union officials intentionally scheduled Plaintiffs to work at the Theatre during this meeting and did not give them permission to attend.

Notably, per the Complaint, Plaintiffs asked Union President O'Shea whether their contract would be brought up, discussed, or voted on at a special executive board meeting planned for June 24, 2009. Plaintiffs allege that O'Shea assured them that the contract would not be brought up and that he would call the meeting out of order if the issue was raised. Plaintiffs claim that they did not attend the meeting in reliance upon the statements by O'Shea that the contract would not be discussed.

Subsequently, in a letter dated August 3, 2009 from the Union's counsel to DiNapoli, counsel stated: "On July 10, 2009, the parties executed an addendum to the Collective Bargaining Agreement between IATSE Local 8 and the Walnut Street Theatre." (Id. ¶ 47.) In the Union's August 2009 newsletter, dated August 14, 2009, the Union stated that "membership voted to accept Walnut's proposed changes," including the changes to the terms and conditions outlined in Section 7.1. (Complaint at ¶ 48.) The Plaintiffs assert that the only vote taken prior to the August 2009 newsletter was the vote taken at the Union's general meeting in May to allow opening of the CBA. Moreover, according to the Complaint, this vote was not a vote for the ratification of any changes to the CBA; rather, it was merely a vote to allow negotiations to begin.

According to the Complaint, "[a]lmost immediately after the alleged ratification of the addendum to the CBA, the Theatre arbitrarily, discriminatorily, and in bad faith terminated Plaintiffs' employment with them in retaliation for the reporting of the timesheet inaccuracies via letters dated July 14, 2009 from [Backes] to each of the Plaintiffs." (Id. ¶ 60.)

Plaintiffs allege that on or about September 2, 2009, at a Union general meeting, Union members brought up the fact that the vote at the May general meeting was only to allow negotiations to begin and was not a ratification of any proposed changes to the CBA. According to the Complaint, a ratification vote was taken at this meeting where Union members voted to ratify the changes.

Plaintiffs claim that the modification was in violation of Section 13.1 of both the original and amended CBA which states: "The terms and conditions set forth above in this Agreement shall take effect upon ratification of this agreement, and remain in force and binding to the thirtieth day of November 2009." (Id. at ¶ 53.) Plaintiffs plead that they were not terminated in accordance with the procedures set forth in the CBA because any changes alleged to have been made were not official until at least the time the ratification vote was taken at the September general meeting, and even then, the changes could only become effective beginning December 1, 2009. (Id. at ¶ 54.)

After their termination, Plaintiffs filed grievances in accordance with the grievance procedures set forth in both the CBA and the Union's Constitution. These grievances were allegedly ignored by the Union until the deadlines set forth in the CBA lapsed. After the grievance deadlines lapsed, Plaintiffs' grievances were denied. Subsequently, appeals of the decision to deny Plaintiffs' grievances were denied or allegedly ignored by the Union. On September 25, 2009, the Union informed Plaintiffs that it would not proceed to arbitration for Plaintiffs and would withdraw Plaintiffs' grievances. Plaintiffs then appealed the Union's decision to decline arbitration, as well as the ...


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