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CAMMARATA v. ICE CREAM DRIVERS UNION

November 17, 1977

MATTY CAMMARATA, et al., Plaintiffs,
v.
ICE CREAM DRIVERS AND EMPLOYEES UNION, LOCAL 757, GOOD HUMOR CORP., et al., Defendants



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

 NEAHER, District Judge.

 Plaintiffs are thirty ice cream vendors employed by Good Humor Corporation ("Good Humor") and represented by the Ice Cream Drivers and Employees Union, Local 757, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Local 757"). In their complaint, as amended, filed as a class action on behalf of all Good Humor ice cream vendors, plaintiffs seek to recover compensatory and punitive damages for claimed personal injuries and loss of earnings suffered as a result of: (1) Good Humor's alleged breach of the collective bargaining agreement with Local 757; (2) negligent and deceitful actions of Good Humor and its officers; and (3) Local 757's violation of its duty of fair representation in refusing to process plaintiffs' grievances against their employer. Good Humor and its affiliated defendants *fn1" have moved to dismiss the amended complaint and Local 757 has moved for summary judgment on the single claim against the union.

 Plaintiffs claim that they suffered "physical and verbal abuse," mental and emotional distress, and a "disastrous and precipitous decline" in "sales and earnings" following the indictment of Good Humor on August 7, 1975 on charges of producing and marketing ice cream from its New York City plant with an illegally high bacteria count and falsifying records to conceal this activity. *fn2" Plaintiffs make no claim that they were given unmarketable ice cream products to sell but rather that, as the most visible representatives of Good Humor, they bore the brunt of the public outcry against Good Humor generated by the adverse publicity attending the indictment. This, they assert, caused customers not only to shun them but to threaten and assault them on their routes. After unsuccessful efforts to obtain compensation from Good Humor and assistance from Local 757, plaintiffs brought this lawsuit.

 In their breach of contract claim, founded on § 301(a) of the Labor-Management Relations Act (LMRA), 29 U.S.C. § 185(a), plaintiffs allege that Good Humor cut their territory and routes and changed their working conditions in violation of the collective bargaining agreement. *fn3"

 The complaint discloses, however, that Good Humor did not actually cut plaintiffs' territory and routes or change their working conditions. Rather, plaintiffs complain of the "willful and fraudulent behavior of Good Humor which effectively deprived plaintiffs of access to [their] territory or routes" and changed their working conditions. Complaint, para. 55 (emphasis supplied). The public reaction to the indictment of Good Humor may have brought about changes in territories, routes and working conditions but only in the sense that plaintiffs and other Good Humor street vendors lost customers and were subjected to such insults, harassment and assaults that they were forced to curtail their work.

 Such actions on the part of third parties cannot be ascribed to Good Humor. In the collective bargaining agreement, annexed as Appendix 1 to the complaint, Good Humor did not guarantee that external influences would not adversely affect the street vendors' sales and environment. For example, if physical conditions on a vendor's route deteriorate, customers move away and the remaining residents are unfriendly, the collective bargaining agreement does not require Good Humor to compensate the vendor for those changes.

 Plaintiffs stress that their grievance concerning the effects of Good Humor's indictment would have been arbitrable under the labor agreement. See Appendix 1, Clause 12. At this point, however, the arbitrability of the grievance is irrelevant. Plaintiffs in this action at law seek damages for breach of a labor contract, not an order compelling arbitration. Thus it is solely for the court to decide whether on the facts alleged and accepted as provable the contract has been breached. In this case, the court concludes that the terms of the contract do not extend to the damage claims asserted by plaintiffs and that Good Humor could not be held to have breached the contract. Therefore, plaintiffs' alleged contract claim against the Good Humor defendants must be dismissed for failure to state a claim.

 The complaint also contains negligence and fraud claims against Good Humor and its officers. Even if the federal claim against Good Humor had survived, it is unlikely that the State claims against its officers could have been maintained in this court. See Aldinger v. Howard, 427 U.S. 1, 49 L. Ed. 2d 276, 96 S. Ct. 2413 (1976). With the dismissal of the federal claim against Good Humor, the pendent State claims, lacking any independent basis for federal jurisdiction, must be dismissed in their entirety. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966).

 The single remaining claim in the amended complaint charges Local 757 with violating its duty of fair representation as regards plaintiffs. Local 757 has moved for summary judgment dismissing that claim solely on the ground that plaintiffs have failed to exhaust their contractual and intraunion remedies. On that ground alone the union must fail, since it is apparent from the parties' Rule 9(g) statements and respective affidavits that genuine issues of material fact are involved in the question of exhaustion of remedies. In addition, material issues of fact are also raised as to whether the union fairly represented these plaintiffs in their attempts to present their asserted grievance through union channels and have it considered according to prescribed union procedure.

 First, contrary to the union's contention, plaintiffs did come forward with proof that they had unsuccessfully presented to their employer the grievance with which this action is concerned, thereby satisfying any requirement imposed by Section 9(a) of LMRA, 29 U.S.C. § 159(a). Four of the plaintiffs submitted affidavits describing specific occasions when they presented grievances to the branch manager and the district manager of Good Humor. They urged these Good Humor officials to protect the vendors from the public outcry by taking the trucks off the streets and compensating the vendors for their lost income, complaining that the lifting of daily rental fees under the union contract was totally inadequate. In making these requests, plaintiffs exhausted the remedy provided in the LMRA. The additional contractual remedy of arbitration was available only to the union and Good Humor.

 Second, a material factual controversy clearly exists as to whether or not plaintiffs presented -- or sought to present -- a grievance through Local 757 channels. *fn4" The affidavit of Anthony Carlino, the union's vice president, avers categorically that they did not. Plaintiffs' affidavits, however, recite specific facts tending to show that repeated attempts were made by them to have the union take up their grievance with Good Humor. These culminated in a letter written by plaintiff Hyman Cohen, on behalf of all the plaintiffs, protesting the union's inaction. That letter evoked the following response to Cohen from the union's secretary-treasurer, Emanuel Parish:

 
"Dear Sir and Brother:
 
"I am in receipt of your letter dated August 27, 1975 referring to ...

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