The opinion of the court was delivered by: LEVET
Plaintiff, Robert Bartels, relying for jurisdiction on Section 301 of the Labor Management Relations Act, 29 USC § 185, brings suit against the defendant, New York Lithographers' and Photo-Engravers' Union No. One-P (hereinafter "the union"), alleging breach of the union's duty of fair representation. Pursuant to Rule 42(b) of the Federal Rules of Civil Procedure, the issue of liability was tried before this court without a jury.
The contentions of the parties may be stated generally as follows:
1. That plaintiff was wrongfully discharged from his position at Rogers Engraving Co., Inc., New York City (hereinafter "Rogers") on September 25, 1964.
2. That the union breached its duty of fair representation by refusing to process the allegedly wrongful discharge to arbitration.
1. That plaintiff should be barred from maintaining this action because he instituted a prior proceeding before the National Labor Relations Board against Rogers only.
2. That plaintiff's discharge by the employer was not wrongful as it was provoked by plaintiff.
3. That the union discharged its obligation as collective bargaining representative when its executive board conducted hearings on Bartels' claim of wrongful discharge, determined that the discharge had been for cause, and the union membership voted to affirm the decision of the executive board.
Although the union suggests that plaintiff's decision to file an unfair labor practice charge solely against the employer constituted an election of remedies which should bar this subsequent action against the union, I believe that the Supreme Court's jurisdictional analysis in Vaca v. Sipes, 386 U.S. 171, 187, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967), sanctions separate actions against an employer and union in a situation involving the issues of wrongful discharge and breach of the duty of fair representation.
After hearing the testimony of the parties and examining the pleadings, the exhibits and the proposed findings of fact and conclusions of law submitted by counsel, I make the following findings of fact and conclusions of law:
1. Plaintiff was employed as a "black and white finisher" by Rogers from June 1960 to September 25, 1964. (SM 7-8.)
2. The union was the recognized collective bargaining agent for all photo-engraving employees at Rogers, including the plaintiff, at all relevant times herein. (PTO, pp. 1, 2.)
3. While in the employ of Rogers, plaintiff worked the "second night shift" from 11:30 P.M. to 6:30 A.M. (SM 8-9.)
4. On May 20, 1964, plaintiff wrote a letter to the union executive board complaining that fellow workers on the second night shift were antagonistic toward him and alleging "uneven distribution of work and privledge (sic) of going home after the work is done." He also declared that on July 3, 1963 he had been designated unfairly to do a "long winded" or difficult assignment in the shop, and that a union official "advised me to write a letter to the board, but which I did not do [until] now." (Pl. Ex. 1.)
5. Upon receiving plaintiff's letter, the union executive board invited him and other workers on the same shift to appear at the board meeting of June 8, 1964. The minutes of the meeting report the following:
"Rogers Eng., R. Bartels, V. Manzo, P. Dondero, foreman and T. Higgins [chairman] appeared on invitation in re Mr. Bartels letter regarding treatment received in shop, Mr. Bartels stated A. Rogers wanted to bring charges against him on the grounds he was spoiling work. * * * Mr. Dondero stated that employer knows of early breaks but all cards are punched. * * * Mr. Higgins stated that Arnold Rogers wanted Mr. Bartels and the routers to stay over and see him, the routers stayed but Mr. Bartels went home. Mr. Bartels still feels that they are trying to get rid of him." (Joint Exhibit AA.)
6. Subsequent to the meeting, plaintiff continued to be employed on the second night shift at Rogers. (Stipulation of the parties: SM, December 2, 1969, 102.)
7. On July 8, 1964, Arnold E. Rogers, chairman of the board of Rogers, sent a letter to plaintiff informing him "that the Management of this company will no longer tolerate your actions towards the Management of this company and your fellow employees. I will no longer tolerate the poor craftsmanship and quality of your work. This is to serve as a warning to you, that any further of the above action by you, I will be forced to inform the Night Superintendent and your foreman to dismiss you." (Deft. Ex. F; SM, October 14, 1969, 63-64.)
8. Plaintiff made no independent effort to discuss the letter from Rogers with any union representative, but noted that a copy of the letter had ...