author: DORSEY, District Judge.

text:
    Scott MONTGOMERY v. NATIONAL RAILROAD PASSENGER CORPORATION.
    Civ. No. N-84-338 (PCD).
    United States District Court, D. Connecticut.
    Oct. 16, 1985.

      James M.S. Ullman, Meriden, Conn., for plaintiff.
    Harold R. Henderson, Jr., Joanna L. Moorhead, National R.R. Passenger Corp., Washington, D.C., for defendant.
   RULING ON MOTION FOR SUMMARY JUDGMENT

DORSEY, District Judge.

The defendant, the National Railroad Passenger Corporation (“Amtrak”), moves for summary judgment on the ground that plaintiff failed to exhaust the grievance resolution procedures required by the Railway Labor Act, 45 U.S.C. § 153 First and Second (“RLA”), and because plaintiff’s suit for wrongful discharge is time-barred by virtue of the holding in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151,103 S.Ct. 2281, 76 L.Ed.2d 276 (1983).

Facts

The plaintiff, Scott Montgomery, worked as a Trackman at Amtrak’s New Haven Rail Welding Plant. He was a member of the Brotherhood of Maintenance of Way Employees, which entered a collective bargaining agreement with Amtrak.

It is uncontested that on July 26, 1977 plaintiff fell asleep on duty while waiting for work to resume at a rail plant which had broken down. Plaintiff’s supervisor, Mr. Smith, charged plaintiff with violating Amtrak’s safety rules which prohibit sleeping on duty. Plaintiff was removed from service effective July 27, 1977, pending a formal hearing. Plaintiff alleges bad blood between himself and Smith, and that Smith had earlier vowed to “get my job” after plaintiff had complained to the union of dangerous working conditions. Affidavit of Scott Montgomery, December 10, 1984, at 2 (“Plaintiff’s Affidavit”).

On August 9, 1977, Amtrak conducted the formal hearing required by the collective bargaining agreement. On August 9, 1977, Amtrak notified plaintiff that he was to be permanently dismissed from service, effective immediately. Plaintiff appealed to his department head, who upheld the termination on November 3, 1977 after conducting another hearing.

At that point, plaintiff took his grievance to Amtrak’s Labor Relations Department. A representative from the Department met with plaintiff’s union representative, and concluded that plaintiff’s discipline had been "excessive.” Letter from S.H. Helt-zinger, Director of Labor Relations, to Samuel Adamo, General Chairman, Brotherhood of Maintenance of Way Employees (June 6, 1978), Defendant’s Memorandum of Points and Authorities in Support of its Motion for Summary Judgment, Exhibit 2. The Department restored plaintiff to active service as a Trackman “with seniority unimpaired[,] but without pay for time lost resulting from the incident.” Id. Plaintiff could have appealed the portion of the Department’s ruling denying back pay to either the National Railroad Adjustment Board or a Public Law Board, as provided in the RLA and his collective bargaining contract, but plaintiff claims (and defendant does not deny) that his union did not advise him of his right to do so.

Plaintiff went back to work for Amtrak on July 3, 1978. On December 29, 1978 he was furloughed along with thirty-three other Trackmen in what Amtrak characterizes as a “routine reduction-in-force,” Affidavit of Elizabeth C. Jillson, Personnel Supervisor, Boston Division, but which plaintiff asserts was a “discriminatory and retaliatory” lay-off. Plaintiff’s Affidavit at 2. Amtrak recalled plaintiff to service effective August 17, 1981, but plaintiff notified the railroad that he was resigning to accept another job offer.

On May 3, 1984, plaintiff filed suit against Amtrak in Connecticut Superior Court seeking back pay for the period July 27, 1978 to July 3, 1979, and damages for the retaliatory layoffs. Defendant removed the case to federal court, and moved for summary judgment.

Discussion

The first issue is whether plaintiff’s lawsuit should survive his failure to exhaust administrative remedies.

The RLA states that railroad employees “shall” pursue their grievances through the steps available within the company, and “may” thereafter bring them before the National Adjustment Board (or one of the regional Public Boards which arbitrate labor disputes). See note 1, supra. Although the Supreme Court originally held that employees who allege that they were wrongfully discharged had the option of going either to court or to the Board, Moore v. Illinois Central R.R., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089 (1941), the rule now is that resort to the grievance procedures established in the RLA is “mandatory.’-’ Andrews v. Louisville & Nashville R.R., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972) (overruling Moore). See also Union Pacific R.R. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 402, 58 L.Ed.2d 354 (1978) (per curiam) (“Congress considered it essential to keep these so-called ‘minor’ disputes within the Adjustment Board and out of the courts”); Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965) (“As a general rule in cases to which federal law applies, federal labor policy requires that individual employees must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress”) (emphasis in original).

There are circumstances under which employees are excused from resort to the arbitration process. Plaintiff claims he is so exempt. If it would be “wholly futile” to go through arbitration, the law does not require employees to do so, Glover v. St. Louis-S.F. Ry., 393 U.S. 324, 330, 89 S.Ct. 548, 551, 21 L.Ed.2d 519 (1969), such as in the context of racial discrimination in which minority employees allege that the very same discrimination by their unions, or employers, or both, which is the basis of their law suits, justifies their failure to participate in arbitration procedures administered by those whom they charge with violating their rights. Id. at 330-31, 89 S.Ct. 548, 551-52, 21 L.Ed.2d 519; Steele v. Louisville & Nashville R.R., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). Plaintiff asserts that it would have been futile to protest the allegedly retaliatory furlough which followed his reinstatement by Amtrak because, “I had attempted to pursue my grievances through the arbitration process previously [by appealing the original wrongful discharge], but to no avail as it only made the situation worse.” Plaintiffs Affidavit at 2. Although it is true that appealing his original dismissal had taken nearly a year to get his job back, it is not accurate to characterize a process which resulted in his reinstatement, albeit without back pay, as having been “to no avail,” or as having made his situation “worse.” Plaintiff should have taken his grievance to the head of his Department, and then, if unsuccessful there, to the Labor Relations Department — the same route he followed successfully in getting his job back. This court finds, therefore, that it has no subject matter jurisdiction over any claims related to the alleged retaliatory furloughs which occurred after plaintiff returned to service because plaintiff has not shown that resort to the appeal process, which is required by the RLA, would have been “futile” in the specific circumstances of this case.

Plaintiff has a more substantial reason for neglecting to appeal that portion of the Labor Relations Department’s decision denying him back pay. Plaintiff claims that the union’s failure to apprise him of his right to take his grievance to the next level of the arbitration process amounts to a breach of the union’s duty of fair representation. Such a duty is implied from the grant to unions by section 9(a) of the National Labor Relations Act, 29 U.S.C. § 159(a) of exclusive power to represent all employees in the collective bargaining unit. In Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967), the Supreme Court held that a “wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.” The Court declared that “a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion,” id. at 191, 87 S.Ct. at 917, but concluded that there was no breach of the duty of fair representation where the union settled a claim, in good faith, at an intermediate stage in the appeals process, and refused the employee’s request to go further. See id. at 193-95, 87 S.Ct. at 918-19. In the present case, the General Chairman of the Union wrote plaintiff that, “[u]nder the circumstances,” the Labor Relations Department’s proposal to return plaintiff to service, but without compensation for time lost, “seems to be a reasonable settlement.” Letter from Samuel Adamo to Scott Montgomery (June 21, 1978), Plaintiff’s Affidavit at 4. While it appears that here, as in Sipes, the union believed in good faith that the resolution of the grievance had been fair to plaintiff, the question still remains whether failure to inform plaintiff of his right to appeal further, constitutes a breach of the union’s duty of fair representation sufficient to excuse him from failing to exhaust administrative remedies.

The court need not answer that question, however, because even were the court to find subject matter jurisdiction over this dispute, the law suit would still have to be dismissed as time-barred. Plaintiff contends that the appropriate statute of limitations in this case is the six-year period for breach of contract actions allowable under Connecticut state law. However, in Del-Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court held that a six-month limitation period applies to “hybrid” suits brought by employees against their employers (for wrongful discharge) and their unions (for breach of the duty of fair representation). The Court concluded that a six-month limitation period struck the most appropriate balance between the need to provide an employee with a satisfactory opportunity to vindicate his collective bargaining and fair representation rights, and the need to resolve labor disputes promptly. Id. at 165-69, 103 S.Ct. at 2291-93. Plaintiff maintains that Del-Costello is not controlling here because that case should not be applied: (a) retroactively; (b) to the RLA; (c) to cases which never went as far as the Adjustment Board; and (d) to suits brought only against an employer.

The short answer to plaintiff’s first two contentions is that the Second Circuit, Welyczko v. U.S. Air, Inc., 733 F.2d 239 (2d Cir.), cert. denied, — U.S. —, 105 S.Ct. 512, 83 L.Ed.2d 402 (1984), and this court, Guertin v. Waterbury Printing & Graphic Communications Union, Civil No. N-82-72 (PCD) (September 3, 1985), have specifically ruled that DelCostello’s six-month limitation applies retroactively, and to cases brought pursuant to the RLA.

Plaintiff’s third contention, which relies on a Massachusetts district court case handed down prior to DelCostello, may also be disposed of summarily because the opinion in DelCostello explicitly rejected any distinction between cases going to final arbitration and those which are stopped short at various preliminary stages. “[I]f it were thought necessary to apply different [statutes of limitations] ... o these different possibilities, the result would be radical variation in the treatment of cases that are not significantly different.” 462 U.S. at 166-67, n. 16, 103 S.Ct. at 2291 n. 16.

Plaintiff’s last argument to get out from under a six-month limitation period is that DelCostello applies only to “hybrid” claims against both a union and an employer, and not to cases like this one brought only against an employer. For authority, plaintiff relies, primarily, on O’Hare v. General Marine Transport Corp., 578 F.Supp. 72, 73 (S.D.N.Y.1983), aff'd, 740 F.2d 160 (1984), cert. denied, — U.S. —, 105 S.Ct. 1181, 84 L.Ed.2d 329 (1985). O’Hare does stand for the proposition that wrongful discharge cases, based solely on an employer’s violation of the collective bargaining contract, should be governed by the applicable state statute of limitations for contract actions, which, in New York, as in Connecticut, is six years. Contra, Voda v. New England T & T, 580 F.Supp. 852, 854 (D.Mass.1984); Harpp v. GE, 571 F.Supp. 426 (N.D.N.Y.1983); Fiske v. Lockheed Georgia Co., 568 F.Supp. 590, 595 (N.D.Ga.1983). However, plaintiff cannot assert (without appearing to want to have his cake and eat it too) that because of union malfeasance he has no duty to exhaust administrative remedies, and then cite cases which involve no allegations of union wrongdoing for his statute of limitations argument. As is implied in the following excerpt from Vaca v. Sipes, what makes a case a “hybrid” action against both union and employer is the nature of the claim, not the identity of the parties:

[W]e think the wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee’s griev-anee____And if, to facilitate his case, the employee joins the union as a defendant, the situation is not substantially changed____And, insofar as adjudication of the union’s breach of duty is concerned, the result should be no different if the employee ... sues the employer and the union in separate actions.

386 U.S. at 186-87, 87 S.Ct. at 914-15 (citations omitted). As the Court said, more succinctly, in DelCostello, “The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both.” 462 U.S. at 165, 103 S.Ct. at 2291.

Thus, plaintiff cannot circumvent the six-month time limitation mandated by DelCos-tello simply by not naming the union as a defendant when this court would lack subject matter jurisdiction were it not for the allegations of union malfeasance which plaintiff correctly makes central to his complaint. Were plaintiff actually to succeed in characterizing this dispute as only against his employer, then summary judgment would issue for the defendant because of plaintiff’s failure to follow to completion the mandatory procedures required by the RLA.

Mr. Montgomery, in his affidavit, indicates that he believed himself to be victim of injustice from the moment Amtrak’s Labor Relations Department handed down its decision refusing to award back pay: “[They] said my punishment was too severe and excessive and that is why I felt I had a right to pursue back pay and have done so.” Plaintiff’s Affidavit at 2 (emphasis added). If Mr. Montgomery had the right to pursue back pay in the courts without first exhausting administrative procedures, he should have done so long before he brought this action. Even were he to be excused from failing to exhaust mandatory grievance procedures, he offers no basis for being, and thus cannot be, excused from failing to file a timely law suit. Therefore, defendant’s motion for summary judgment is granted.

Defendant’s request for an award of attorney’s fees will be denied. Defendant’s motion to dismiss the case for plaintiff’s failure to post bond to cover costs is now moot in light of this ruling.

SO ORDERED.

      . 45 U.S.C. § 153 First (i):
      The disputes between an employee ... and a carrier ... growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions ... shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board____
      Congress has also created Special Boards of Adjustment (Public Law Boards) to adjudicate disputes otherwise referable to the National Railroad Adjustment Board. See 45 U.S.C. § 153 First (m).

      . Plaintiff was not out of work for the entire period from December 29, 1978 to August 17, 1981. Amtrak records show that he was recalled from furlough effective March 19, 1979, and that he worked from that date until January 18, 1980. He went on voluntary furlough from January 18, 1980 until March 24, 1980, and worked from March 24 to December 5, 1980. Plaintiff was furloughed again on December 4, 1980, recalled from furlough on December 22, 1980, and put on voluntary furlough from January 5, 1981 until the recall of August 17, 1981, which plaintiff declined.

      . In Schum v. South Buffalo R.R., 496 F.2d 328 (2d Cir.1974), a railroad employee in a wrongful discharge action claimed that his union had failed to tell him, until it was too late, that pursuant to his collective bargaining contract he had only six months within which to appeal his grievance to the National Railroad Adjustment Board. The Court of Appeals reversed a lower court ruling which had dismissed the suit because of Schum's failure to take his case to the board. The Court of Appeals observed:
      Schum was seeking to protect one of his most basic rights in the employee/employer relationship — the right not to be wrongfully discharged. As a general rule, grievances do not succeed without the full support of the union. Normally employees do not have the expertise, knowledge or experience to interpret the complicated, substantive and procedural provisions of a collective bargaining agreement. In addition, specialized skill and insight are required at the higher levels of the grievance procedures to investigate and marshal the relevant facts and law, to prepare adequate petitions and briefs, to comply with the intricate limitations periods common to all labor contracts, and to present persuasive arguments to the board of arbitration.

        Schum relied, in part, on Retana v. Apartment Motel, 453 F.2d 1018, 1024 n. 10 (9th Cir.1972) ("Since the union can be sued for breach of its duty of fair representation if it fails to process a grievance, there is no apparent reason why it cannot be sued 'if it fails to advise the employees to file a grievance. . . .’ Feller, 'Vaca v. Sipes: One Year Later,' in NYU Twenty-First Annual Conference on Labor 141, 144 (1969)"), and distinguished O’Mara v. Lackawanna R.R., 407 F.2d 674 (2d Cir.1969), aff’d sub nom. Czosek v. O’Mara, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970), on the grounds that, in O’Mara, "[t]he plaintiffs were fully cognizant of their right to proceed on their own through the grievance machinery,” and because, in O'Mara, "there was no allegation that the union’s breach of its duty of fair representation was the operative cause of the plaintiff's failure to exhaust contractual remedies.” Schum, 496 F.2d at 332, n. 5. Although Schum has been criticized by some courts — see, e.g., Harrison v. United Transp. Union, 530 F.2d 558 (4th Cir.1975) (per curiam), cert. denied, 425 U.S. 958, 96 S.Ct. 1739, 48 L.Ed.2d 203 (1976); Hill v. Southern Ry., 402 F.Supp. 414 (W.D.N.C.1975) — it is still the law of this circuit. In light of the factual similarities between the present case and Schum, the question whether the union breached its duty of fair representation by failing to advise Montgomery of his right to appeal to the National Railroad Adjustment Board, is substantial. Cf. NLRB v. Local 282, International Brotherhood of Teamsters, 740 F.2d 141, 147 (2d Cir.1984) (“the fiduciary duty which a union owes its members requires it to inform them of their obligations so that they may take whatever steps are necessary to protect their jobs").

        . Hennebury v. Transport Workers Union, 485 F.Supp. 1319 (D.Mass.1980). If resort to cases antedating DelCostello were necessary, this court would be bound not by Hennebury but by the Second Circuit decision in Assad v. Mount Sinai Hosp., 703 F.2d 36, vacated on other grounds, 464 U.S. 806,104 S.Ct. 54, 78 L.Ed.2d 73 (1983), which held that a six-month limitation period applied to all wrongful discharge/breach of fair representation actions which stopped short of final arbitration.

      . Amtrak argues that plaintiff's failure to join the union as a defendant in this case is an additional ground for granting summary judgment. Defendant’s Reply Memorandum at 2, 6-7. See Riddle v. Transworld Airlines, 512 F.Supp. 75, 80 n. 5 (W.D.Mo.1981) (“If ... the court’s power to grant an employee relief against his employer in a RLA case is ancillary to its power to grant the employee relief against his union for breaching its duty of fair representation, then clearly, the union must be a party to . the action in order for the court to grant any relief at all.”) See also, Mavis v. Brotherhood of Railway, Airline & Steamship Clerks, 585 F.2d 926 (8th Cir.1978); Ramey v. Chesapeake & Ohio Ry., No. 81-3288 (S.D.W.Va. Aug. 29, 1983). This court’s reading of the excerpts from Vaca v. Sipes and DelCostello just quoted in the text would permit an employee to elect to sue only his employer though including in the complaint allegations that the union breached its duty of fair representation. This is another question, however, which the court need not actually decide in light of its ruling on the applicable statute of limitations.


source: Caselaw Access Project

author: WILLIAM C. CONNER, District Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. Jesse DIXON and Fitzgerald Bowens, Defendants.
    No. 84 Crim. 803 (WCC).
    United States District Court, S.D. New York.
    Oct. 16, 1985.
    Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for plaintiff; Adam S. Hoffinger, Asst. U.S. Atty., New York City, of counsel.
    Caesar D. Cirigliano, The Legal Aid Society, Federal Defender Services Unit, New York City, for defendant Fitzgerald Bow-ens; Ruth M. Chamberlin, New York City, of counsel.
   OPINION AND ORDER

WILLIAM C. CONNER, District Judge:

Jesse Dixon and Fitzgerald Bowens (“Bowens”) are named as defendants in a two-count indictment charging them with (1) conspiracy to distribute and to possess with intent to distribute phencyclidine, in violation of 21 U.S.C. § 846 (1982), and (2) distribution of phencyclidine within one thousand feet of Public School 144 in Manhattan, in violation of 21 U.S.C. §§ 812, 841(a)(1), 845a (1982 & Supp. II 1984). Bowens moves pursuant to Fed.R.Crim.P. 12 to dismiss the second, or “schoolhouse,” count upon the grounds that section 845a violates the due process and equal protection guarantees of the fifth amendment to the Constitution. For the reasons set forth below, Bowens’s motion is denied.

Bowens argues that § 845a violates his right to due process of law because it creates an irrebutable presumption that sales of narcotics within one thousand feet of a school adversely affect schoolchildren. Bowens does not dispute that Congress had a legitimate purpose in enacting § 845a, namely, to protect school-age children from the dangers posed by the sale of narcotics. Memorandum of Law in Support of Defendant’s Motion to Dismiss at 5 [hereinafter cited as “Defendant’s Memorandum”]. He also does not dispute that the relationship between Congress’s purpose and the challenged presumption need only be a rational one. Id. at 8. Instead, he argues that because schoolchildren are not present during many drug sales within one thousand feet of a school, including the one charged, the irrebuttable presumption created by § 845a is not rationally related to Congress’s purpose. Id. at 5-8. Bowens’s argument is without merit. As Judge Weinfeld observed in United States v. Nieves, 608 F.Supp. 1147, 1149 (S.D.N.Y.1985),

[t]he presumption that narcotics sales in the vicinity of an elementary or secondary school endanger the students and thus should be subject to stiffer penalties is substantially related to Congress’s interest in shielding these children from the evils of the drug trade. Whether or not a child is involved in or otherwise present during any particular sale of narcotics within one thousand feet of a school, subjecting the seller to enhanced penalties reasonably may be expected to deter the seller and other illicit dealers from conducting their operations near school property in the future. In such areas, where school children congregate in large numbers before, during, and after school sessions, they are readily subject to the illicit activities of those who ply narcotics to the victims of drug abuse and addiction____ It is difficult to imagine a more rational way of keeping drug traffickers out of areas where children are more likely to come into contact with them than to subject them to a risk of stiffer penalties for doing business near school property. By focusing on the particular transaction for which he is charged, defendant fails to consider the long term effect of section 845a on the health and welfare of schoolchildren in general.

Bowens’s equal protection argument is also without merit. He contends that, because § 845a has a disproportionate impact on members of racial minorities living in inner city areas, it denies him the equal protection of the laws guaranteed by the fifth amendment, see Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Defendant’s Memorandum at 9-13. Even assuming that § 845a has a racially disparate impact, that fact alone would not give rise to an equal protection claim. Under the rule of Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597 (1976),

a law, neutral on its face and serving ends otherwise within the power of government to pursue, is [not] invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than another. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.

Rather, it is now well established that “[p]roof of a racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause,” Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977), and that “the absence of proof of discriminatory intent forecloses any claim that the official action challenged in this case violates the Equal Protection Clause,” City of Memphis v. Greene, 451 U.S. 100, 119, 101 S.Ct. 1584, 1596, 67 L.Ed.2d 769 (1981). Bowens does not allege that Congress intended to discriminate on the basis of race in enacting § 845a and there is no indication or reason to believe that this was Congress’s goal. It is therefore sufficient for equal protection purposes that the statute, as noted above, bears a rational relationship to a legitimate governmental interest.

Finally, Bowens argues that under Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), strict scrutiny must be applied to criminal statutes that “affect vital liberty interests such as those present in criminal cases.” Defendant’s Memorandum at 11. However, Bow-ens’s reliance on Douglas is misplaced. The statute challenged in that case was subjected to strict scrutiny because, by denying the indigent defendants the right to appellate counsel, it impaired a fundamental right. Section 845a impairs no fundamental right. Rather, it distinguishes between those individuals who sell narcotics within one thousand feet of a school and those who sell narcotics outside that region. As Judge Sweet noted in United States v. Agilar, 612 F.Supp. 889, 891 (S.D. N.Y.), the Supreme Court has often applied a rational basis test in upholding criminal statutes drawing similar distinctions, see, e.g., Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975) (per curiam); Marshall v. United States, 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974); McGinnis v. Reyster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973).

For the foregoing reasons, Bowens’s motion to dismiss count two of the indictment is denied.

SO ORDERED.

      . Section 845a, enacted on October 12, 1984 as part of the Controlled Substances Penalties Amendments Act of 1984, Pub.L. No. 98-473, sec. 503(a), § 405A, 98 Stat. 1837, 2069, provides for enhanced penalties upon conviction for distributing a controlled substance within one thousand feet of a public or private elementary or secondary school. In the event of a conviction under this section, the term of imprisonment would be up to twice that, and the term of parole at least twice that, authorized for unlawful narcotics sales generally. 21 U.S.C. § 845a(a) (Supp. II 1984). In the event of a second or subsequent conviction under this section, the statute provides for the imposition of a mandatory term at least three times longer than that provided for repeat offenders generally, up to a maximum term of life imprisonment, 21 U.S.C. § 845a(b) (Supp. II 1984), and there would be no eligibility for parole before a prescribed minimum sentence of at least three years had been served, 21 U.S.C. § 845a(c) (Supp. II 1984).
      Although section 845a is but one year old, the judges of this Court have considered identical challenges to its constitutionality on several occasions. Without exception, those challenges have been rejected. See United States v. Singer, No. 85 Cr. 553 (RWS) (S.D.N.Y. Sept. 26, 1985); United States v. Cunningham, 615 F.Supp. 519 (S.D.N.Y.1985); United States v. Agitar, 612 F.Supp. 889 (S.D.N.Y.1985); United States v. Nieves, 608 F.Supp. 1147 (S.D.N.Y.1985).

      . The narcotics transaction charged in count two of the indictment is alleged to have occurred on August 6, 1985 at approximately 7:40 p.m. Defendant maintains that Public School 144 was closed for the summer.

      . Bowens offers no evidence, statistical or otherwise, to support his assumption that the statute burdens one race more than another.

      . Indeed, Bowens concedes that there was no intent to discriminate on the part of Congress in enacting section 845a. See Defendant’s Memorandum at 12 (”[U]nder these circumstances the fact that the disproportionate impact is not intentional is not significant.”).

      . Bowens also cites Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), and Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). Defendant’s Memorandum at 11. Neither case is apposite, however, since neither involved the application of strict scrutiny.


author: JOSEPH H. YOUNG, District Judge.

text:
    TRUSTEES OF the GLAZIERS LOCAL 963 PENSION, WELFARE, AND APPRENTICE FUNDS v. WALKER AND LABERGE COMPANY, INC.
    Civ. No. Y-84-4291.
    United States District Court, D. Maryland.
    Oct. 16, 1985.
    Joseph P. Boyle, Rockville, Md., and James R. O’Connell, Rockville, Md., for plaintiff.
    James C. Praley, Glen Burnie, Md., for defendant.
   MEMORANDUM

JOSEPH H. YOUNG, District Judge.

This case was brought by the trustees of the Glazier Local 963 Pension, Welfare, and Apprentice Funds pursuant to Sections 502 and 515 of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1132 and 1145, as amended by the Multiemployer Pension Plan Amendments Act (MPPAA), 29 U.S.C. §§ 1132(g) and 1145, and § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Plaintiff trustees seek payment for any unpaid contributions, interest, liquidated damages, costs, and attorneys’ fees from defendant Walker and LaBerge Company because of defendant’s failure to make timely contributions to the employee funds.

Plaintiffs contend that the defendant is required, under the terms of the collective bargaining agreement executed by the union and defendant, to make timely contributions to the employee benefit funds in accordance with the terms of the respective trust agreements to which the collective bargaining agreement refers. Plaintiffs also assert that they are entitled, by statute and contract, to liquidated damages, interest, and attorneys’ fees for all late contributions to the employee funds.

Defendant concedes that it is required to make timely contributions to the plaintiffs’ trust funds under the collective bargaining agreement and that the statutory provisions to which plaintiffs refer are remedial in nature and are intended to relieve pension plans from the burden of collection proceedings by imposing additional sanctions on employers who fail to make their required contributions. (Defendant’s Memorandum, p. 2 (citing 29 U.S.C. § 1132(g)). However, defendant contends that there is an important distinction between unpaid contributions and late contributions that are paid prior to the commencement of suit. (Defendant’s Memo., p. 2 (citing Bennett v. Machine Metals Co., Inc., 591 F.Supp. 600, 605 (E.D.Pa.1984).

Plaintiff argues that all late contributions are subject to the mandatory provisions of § 1132. Defendant contests this construction of the federal pension laws and contends instead that the sanctions provided for in § 1132 apply only to contributions that remain unpaid at the time suit is commenced for their collection. Defendant argues further that plaintiffs are entitled only to interest on delinquent payments paid prior to suit.

I. APPLICABLE LAW

Sections 1132 and 1145 of 29 U.S.C. govern the enforcement of employer contributions to employee pension and welfare trust funds. Section 1145 provides in pertinent part:

Every employer who is obligated to make contributions to a multi-employer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement.

Section 1132(g)(2) also provides that:

In any action under this subchapter by a fiduciary for or on behalf of a plan to enforce section 1145 of this title in which a judgment in favor of the plan is awarded, the court shall award the plan—
(A) the unpaid contributions,
(B) interest on the unpaid contributions,
(C) an amount equal to the greater of—
(i) interest on the unpaid contributions, or
(ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent (or such higher percentage as may be permitted under Federal or State law) of the amount determined by the court under subpar-agraph (A),
(D) reasonable attorney’s fees and costs of the action, to be paid by the defendant, and
(E) such other legal or equitable relief as the court deems appropriate.

These provisions of the MPPAA amended ERISA to provide specific remedies for the enforcement of federal pension laws and the collective bargaining and trust agreements executed pursuant to these laws. In commenting on the changes in ERISA’s enforcement provisions, the Senate Committee on Labor and Human Resources noted that:

Delinquencies of Employers making required contributions are a serious problem for most multi-employer plans. Failure of employers to make promised contributions in a timely fashion imposes a variety of costs on plans. While contributions remain unpaid, the plan loses the benefit of investment income that could have been received and invested on time. Moreover, additional administrative costs are incurred in detecting and collecting delinquencies. Attorneys fees and other legal costs arise in connection with collection efforts.
These costs detract from the ability of plans to formulate or meet funding standards and adversely affect the financial health of plans. Participants and beneficiaries of plans as well as employers who honor their obligation to contribute in a timely fashion bear the heavy cost of delinquencies in the form of lower benefits and higher contribution rates____ The intent of this section is to promote prompt payment of contributions and assist plans in recovering the cost incurred in connection with delinquencies.

Senate Committee on Labor and Human Resources (Staff), 96th Congress, 2d Sess., S. 1076, The Multiemployer Pension Plan Amendments of 1980: Summary and Analysis Consideration (Comm.Print (1980) at 43-44).

Similar sentiments were expressed in the House on H.R. 3904, which contained identical language as S. 1076 concerning double interest, liquidated damages, costs and attorneys’ fees. Representative Thompson stated in a floor debate that:

It is intended that the specific provisions of this section concerning interest and liquidated damages are not limitations on the amounts otherwise set forth in collective bargaining agreements or plan documents; they constitute a minimum, not a maximum. For example, we understand that there are multiemployer plans which currently provide, in the event of the employer contribution delinquency, for the payment of interest and liquidated damages which are in excess of the provisions of this section. Such practice will not be affected by the provisions of this section which directs a court to award unpaid contributions, interest, liquidated damages which are in excess of the provisions of this section. Such practice will not be affected by the provisions of this section which directs a court to award unpaid contributions, interest, liquidated damages, reasonable attorney’s fees, and costs as well as where the plan does not sufficiently address such items.

Central States, Southeast and Southwest Areas Pension Fund v. Aleo Express Co., 522 F.Supp. 919, 928 (E.D.Mich.1981) (quoting 126 Cong.Rec.H. 7899 (daily ed. August 26, 1980)). There can be little doubt that Congress intended to strengthen the enforcement provisions of federal pension law to protect the integrity and insure the continued viability of multiemployer employee benefit plans by relieving the plans of the burden of collection proceedings. Central States, 522 F.Supp. at 928. Therefore, § 1132(g)(2) was enacted to provide stiffer sanctions against employers who fail to make contributions to the employee benefit plans specified in the various collective bargaining and trust agreements to which they are parties.

The employee benefit plans which are the subject of this litigation, are established and maintained pursuant to the Trust Agreements and Declarations of Trust incorporated by specific reference in Articles VIII (Apprenticeship), X (Health and Welfare Fund), and XI (Pension Fund) of the collective bargaining agreement executed by the union and employers. These trust agreements govern the operation of the employee plans, the timing of employer contributions to the plans, and the penalties for late payments to the plans. Both the employers and the union have designated representatives as trustees for the various plans.

The trust agreements for the plans involved in this case provide that:

Insofar as payments by the individual Employer to the Fund are concerned, time is of the essence. Regular and prompt payment of amounts due by individual Employers to this Fund is essential for the maintenance of the Fund, and it would be extremely difficult, if not impracticable, to fix the actual expense and damage to the Fund and to the program provided by the Fund which will result from the failure of an individual Employer to make such monthly payments in full within the time period. Therefore, payments, together with the completed reporting forms, are due on the tenth (10th) day following the end of each calendar month. Where an Employer is in default for ten (10) working days in filing any report and making any payment due, there may be added to and become a part of the amount due and unpaid, liquidated damages for each monthly report or payment due to the Fund, up to twenty percent (20%) of the amount due or twenty dollars ($20.00), whichever is greater, plus interest at the rate of twelve percent (12%) from the due date until the date of payment. (Exhibits G, H, I).

These agreements are essential to the resolution of plaintiffs’ claims in this case.

II. DISCUSSION

Following a hearing on the factual and legal issues involved in this case, the Court concludes that plaintiff is entitled to liquidated damages and interest on late contributions made by the defendant to the respective plans. Plaintiffs are entitled to liquidated damages and interest under the terms of the applicable trust agreements for contributions due for the months of November, 1983, January, March, August, and September, 1984. These late contributions are subject to liquidated damages provided in the trust agreements. The liquidated damages mandated in subparagraph (C)(ii) of § 1132(g)(2) are not applicable to these delinquent contributions because, although they were untimely, they were tendered prior to the commencement of this suit and therefore do not qualify as “unpaid contributions” from which liquidated damages can be calculated as provided in § 1132(g)(2)(C)(ii). See Bennett v. Machine Metals Co., Inc., 591 F.Supp. 600, 604, 605 (E.D.Pa.1984). Although it is of little practical significance because liquidated damages in this ease are the same under the terms of the trust agreements and the statutory provisions of § 1132(g)(2)(C)(ii), the mandatory liquidated damage provisions of subparagraph (C)(ii) is applicable to the late contributions for the month of October, 1984 which had not been paid at the time this suit was filed.

Despite defendant’s contentions to the contrary, defendant is liable for interest and liquidated damages for all contributions paid to the respective employee plans in an untimely manner as mandated by the trust agreements which govern the plans. Defendant is bound to the terms of the collective bargaining agreement to which it is a party and which incorporates the respective trust agreements by reference. Defendant’s representatives are included as trustees for the plans and as such are signatories to the trust agreements and any amendments thereto.

Defendant is also liable for costs and reasonable attorneys’ fees. Section 1132(g)(2) mandates the award of costs and attorneys’ fees where a fiduciary successfully brings an action on behalf of an employee plan to enforce § 1145 of Title 29. Section 1145 requires employers who are contractually obligated to make contributions to multiemployer plans under the terms of the plans or collective bargaining agreements, to make such contributions in accordance with the terms and conditions of the plans and collective bargaining agreements. Here, the defendant employer is required to make contributions to the respective employee plans no later than ten (10) days following the end of each calendar month. Defendant has failed to comply with this condition in each of the months for which plaintiffs seek relief. Although the principal amounts of all contributions except for October, 1984 were paid and received by the plans prior to suit, plaintiffs nonetheless were required to bring this action to collect liquidated damages provided for in the trust agreements for late contributions paid both before and after commencement of this action. Having brought suit to enforce the terms and conditions of the trust agreement with which the defendant is compelled to comply contractually and statutorily, plaintiffs are entitled to costs and attorneys’ fees upon the award of judgment in their favor. 29 U.S.C. § 1132(g)(2) and § 1132(g)(2)(D).

The statutory damages to which plaintiffs are entitled for the delinquent contributions for October, 1984 are the same as the damages provided in the trust agreements for delinquent contributions. Thus, there is no reason to calculate separately the liquidated damages for October, 1984 and the delinquent contributions from the remaining months which were satisfied in full prior to suit. Plaintiff is entitled to liquidated damages amounting to no more than 20% of the principal amount owed at the due date plus interest at 12% from the due date until the date of payment. These damages and interest apply to the delinquent payments for January, March, August, September, and October, 1984. Plaintiff is also entitled to interest on the late contributions for November, 1983. No liquidated damages are currently owing from that month because they have already been paid by the defendant.

Based on the foregoing discussion, plaintiffs are entitled to liquidated damages for late contributions of the defendant to the employee plans. Judgment for such damages will be entered for plaintiffs in the amount of $6,759.57 and shall be apportioned as follows:

(1) Welfare Fund $4,416.90
(2) Pension Fund $2,232.78
(3) Apprenticeship Fund $ 109.89
$6,759.57

Similarly, plaintiffs are also entitled to interest in the amount of $379.53. Judgment will be entered in favor of the plans in the following amounts:

(1) Welfare Fund $247.66
(2) Pension Fund $125.71
(3) Apprenticeship Fund $ 6.16
$379:53

Judgment will be entered in favor of the Welfare and Pension plans for incorrect computations in January and December, 1984, and May, 1985 in an amount totaling $503.33. Payments should be allocated between the two plans as follows:

(1) Welfare Fund $236.33
(2) Pension Fund $267.00
$503.33

Thus, plaintiffs are entitled to a total payment of $7,642.43 for liquidated damages, interest, and incorrect computations. Plaintiffs are also entitled to attorneys’ fees and costs in the amount of $600.00. Judgment will be entered in favor of plaintiffs for $8,542.43 (total of damages, incorrect computations, interest, costs, and attorneys’ fees).

      This action was commenced on November 28, 1984. Because only the contributions for October, 1984 (due on November 11, 1984) had not been received at the time of filing, they are the only contributions to which subparagraph (C)(ii) of § 1132(g)(2) could apply.