IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SUSANNE H. LINN and MELISSA KNESZ,

Plaintiff,

v.

NORTHAMPTON COUNTY, et al.,

Defendants.

Civil Action No. 02 CV 4417

 

Judge Anita Brody

MEMORANDUM OF LAW IN SUPPORT OF

DEFENDANT AFSCMEíS MOTION TO DISMISS

I. INTRODUCTION

Plaintiffs commenced this action by filing a Complaint on or about July 2,

2002. Plaintiffs allege that their employer, Northampton County (ìCountyî) and their

local union, AFSCME Local 2549 (ìAFSCMEî or ìUnionî) engaged in unlawful

discrimination and retaliation, that the County violated their constitutional rights, and

that AFSCME breached its duty of fair representation to them. Pursuant to Federal

Rule of Civil Procedure (ìRuleî) 12(b), Defendant AFSCME is this day filing a Motion to

Dismiss. This memorandum of law is submitted in support of that Motion.

II. STATEMENT OF FACTS

Plaintiffs Linn and Knesz allege that they have been employed as

corrections officers in the Countyís Department of Corrections for approximately ten

and four years, respectively. Complaint ¶ 5. Throughout their employment, AFSCME

has represented them for collective bargaining purposes. Id. Plaintiffs allege that

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AFSCME discriminated against them on the basis of sex in violation of Title VII of the

Civil Rights Act of 1964 (ìTitle VIIî), 43 U.S.C. ßß 2000e, et seq., and the Pennsylvania

Human Relations Act (ìPHRAî), 43 P.S. ßß 951, et seq., and breached its duty of fair

representation to them under Section 301 of the National Labor Relations Act (ìNLRAî),

29 U.S.C. ß 185. Complaint ¶¶ 1, 6-30, 41-49. 

As to their claims under Title VII and the PHRA, Plaintiffs allege that

AFSCME refused to process grievances on their behalf on account of their gender; that

Union representatives ignored complaints of gender discrimination, and retaliated

against women, including Plaintiffs, for making such complaints; and that AFSCME

excluded Plaintiffs from negotiations regarding grievances ìnominally filed on plaintiffsí

own behalf.î Complaint ¶¶ 13, 20, 24.

In support of their claim under the NLRA, Plaintiffs allege that AFSCME

failed and refused to fairly represent them in grievance proceedings, as well as contract

negotiations and enforcement, failed to process grievances on their behalf, or only

perfunctorily pressed their claims, and colluded with the County to deprive them of

unbiased treatment. Complaint ¶ 42, 43, 44. 

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III. ARGUMENT

Count VI of the Complaint Must Be Dismissed for 

Failure To State a Claim Upon Which Relief May Be Granted.

In ruling on a motion to dismiss under Rule 12(b)(6) (for failure to state a

claim upon which relief can be granted), the Court must "accept as true all of the

allegations in the complaint and all reasonable inferences that can be drawn therefrom,

and view them in the light most favorable to the plaintiff." Morse v. Lower Merion

School District, 132 F.3d 902, 906 (3d Cir. 1997). A case should be dismissed only if it

is clear that no relief could be granted under any set of facts that could be proved

consistent with the plaintiff's allegations. Hishon v. King & Spaulding, 467 U.S. 69, 73,

104 S. Ct. 2229, 2232-33 (1984); Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d

1250, 1261 (3d Cir. 1994). Even under this exacting standard, Count VI must be

dismissed in this case, because Plaintiff has failed to allege facts which, if ultimately

proven, would support any claim for relief against Defendants under the NLRA.

Count VI of the Complaint purports to state a claim against AFSCME for

breach of its duty of fair representation to Plaintiffs under the NLRA. Complaint ¶ 1 &

p. 12. However, the NLRA has no application to Plaintiffs, nor to their relationship with

the County or AFSCME.

By its terms, the NLRA applies only to employees of ìemployersî as

defined in that Act. See 29 U.S.C. ß 152(3) (ìThe term ëemployeeí . . . shall not include

any individual employed . . . by any other person who is not an employer as herein

defined.î) The NLRAís definition of employer specifically excludes ìany State or

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political subdivision thereof.î See 29 U.S.C. ß 152(2). Plaintiffs are employed by the

County, a political subdivision of Pennsylvania. Thus, the County is not an ìemployerî

within the meaning of the NLRA, and for that reason, Plaintiffs are not ìemployeesî

within the meaning of that statute. Therefore, Plaintiffs have no rights under the NLRA,

and no claim against AFSCME for breach of any duty of fair representation under that

statute. See Manfredi v. Hazleton City Authority, 793 F.2d 101, 104 (3d Cir. 1986);

Crilly v. SEPTA, 529 F.2d 1355, 1357-1362 (3d Cir. 1976); Williams v. United Transp.

Union, 155 LRRM (BNA) 3083, 3084 (E.D. Pa. 1996).

Since no relief could be granted to Plaintiffs under the NLRA, under any

set of facts that could be proved consistent with the Plaintiffsí allegations, Count VI of

the Complaint must be dismissed pursuant to Rule 12(b)(6).

IV. CONCLUSION

For all of the foregoing reasons, Defendant AFSCME respectfully

requests that the Court enter an order granting Defendant AFSCMEís Motion to

Dismiss..

Respectfully submitted,

WILLIG, WILLIAMS & DAVIDSON

 By: ________________________________

AMY L. ROSENBERGER, ESQUIRE

Pa. Attorney I.D. No. 76257

1845 Walnut Street, 24th Floor

Philadelphia, PA 19103

(215) 656-3600

Dated: September 30, 2002 Counsel for Defendant AFSCME

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CERTIFICATE OF SERVICE

I, AMY L. ROSENBERGER, ESQUIRE, hereby certify that I have this day

caused a true and correct copy of the foregoing Memorandum of Law In Support of

Defendant AFSCMEís Motion to Dismiss to be served by first class mail, postage

prepaid, upon the following:

Anne P. Felker, Esquire

539 Center Street

P.O. Box 190

Bethlehem, PA 18016-0190

(610) 861-7737

Jordan Yeager, Esquire

Boockvar & Yeager

714 Main Street

Bethlehem, PA 18018

(610) 861-4662

Counsel for Plaintiffs

David J. MacMain, Esquire

L. Kristen Blanchard, Esquire

Montgomery, McCracken, Walker

 & Rhoads, LLP

123 South Broad Street

Philadelphia, PA 19109

Counsel for Defendants Northampton County

 and Todd Buskirk

_____________________________

AMY L. ROSENBERGER, ESQUIRE

Dated: September 30, 2002

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