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September 15, 1980

Walter DINGER, Plaintiff,
ANCHOR MOTOR FREIGHT, INC., Teamsters Local Number 445, Yonkers, New York, Defendants

The opinion of the court was delivered by: CARTER

Walter Dinger was employed as a truck driver at the Tarrytown, New York terminal of defendant Anchor Motor Freight Company ("Anchor") from February, 1977, until he was designated a "voluntary quit" by Anchor on June 12, 1978. Disagreeing with that designation, and asserting that he had been ill that day, Dinger filed a grievance of wrongful discharge with his union, defendant Teamsters Local Number 445 ("the union") which is the recognized bargaining agent for the drivers based at Anchor's Tarrytown terminal.

Under the terms of the collective bargaining agreement ("the agreement") between Anchor and the union, *fn1" all grievances and disputes arising under the agreement were subject to a contractual grievance procedure *fn2" that included arbitration by a panel composed of union and management representatives. *fn3" The agreement also provided that a majority decision of the arbitration panel is final and binding on the parties, including the employee involved. *fn4"

 The hearing on Dinger's grievance of wrongful discharge took place July 18, 1978. Dinger was represented by the president of the local union, and testified under oath. The arbitrators' decision, mailed to the parties on July 20, 1978, stated that Dinger had been a "voluntary quit" for he had left the terminal on June 12, 1978, without explanation; that he had testified during the hearing that he had not reported sick that day, and that he had an "admitted pattern of non-productive past work performance."

 Dinger instituted this suit on June 26, 1979, asserting jurisdiction based on the Labor Management Relations Act, 29 U.S.C. § 141, et seq. and the United States Arbitration Act, 9 U.S.C. § 1, et seq. The complaint named as defendants both Anchor and the union, but asserted no claim against the latter. Plaintiff stated that the union had been joined only as a "necessary" party under Rule 19(a), F.R.Civ.P., because it had been a party to the arbitration.

 The complaint alleged that the arbitral decision was erroneous in that plaintiff had been ill and had reported ill on June 12, 1978, and had not been a voluntary quit; that he had not been informed of his right to representation by an attorney at the arbitration hearing and, because of his lack of counsel, had not presented his case well and had made conclusory statements; that the real reason for his discharge had been a vendetta against him "performed by" Anchor's dispatcher in retaliation for Dinger's complaints about certain of Anchor's work practices.

 The relief sought was either $ 25,000 in back pay plus reinstatement by Anchor, or alternatively, a de novo arbitration before a new panel designated by defendants.

 The union's answer asked for dismissal of the complaint against it. Anchor filed a pre-answer motion for dismissal of the complaint or for summary judgment.

 Anchor's motion was based, inter alia, on the following grounds: that to the extent Dinger's suit was an attempt to vacate the arbitration award, it was time-barred; that any suit against Anchor was barred for failure to allege that the union breached its duty of fair representation; and that this court's jurisdiction is preempted by the exclusive jurisdiction granted by Congress to the National Labor Relations Board ("NLRB"), because the employer's actions were arguably an unfair labor practice.

 In response to Anchor's motion, Dinger filed a motion for leave to amend his complaint and a cross motion for summary judgment. In support of these motions, plaintiff filed a memorandum of law, a 9(g) statement, and an affidavit of Walter Dinger (hereinafter Plaintiff's Aff.). The proposed amended complaint differs in two respects from the original complaint. First, it restates the allegation of a vendetta by Anchor's dispatcher to aver that the dispatcher's conduct amounted to "intentionally outrageous conduct and harassment" causing plaintiff emotional pain and suffering. Second, the prayer for relief has been expanded to include a request for $ 250,000 in punitive damages, and the alternative relief now requested is a de novo arbitration by a court-designated panel of arbitrators.

 Because Anchor moved for dismissal or summary judgment before filing its answer, plaintiff was entitled to amend his complaint as of right. Rule 15(a), F.R.Civ.P. Accordingly, leave to amend is granted, and the proposed amended complaint supersedes plaintiff's original pleading.

 Both plaintiff and Anchor have renewed their prior motions for summary judgment. *fn5" In addition, they have filed supplemental memoranda in response to the court's request for briefs addressed to the questions whether the amended complaint states a cause of action for tort liability under New York law, and whether the employer's actions forming the basis of plaintiff's vendetta claim were subject to the grievance-arbitration procedures of the agreement. *fn6"

 The 9(g) statements submitted by the parties in support of their summary judgment motions show that there is no dispute as to any material facts. For the reasons discussed below, defendant Anchor's motion is granted, and plaintiff's is denied.

 1. Wrongful Discharge Claim

 Defendant Anchor is entitled to summary judgment as to plaintiff's claims that contest the discharge as wrongful and that challenge the arbitral decision as both erroneous and unfair.

 The complaint asserts that jurisdiction is based on the Labor Management Relations Act (LMRA), 29 U.S.C., and the United States Arbitration Act, 9 U.S.C. § 1 et seq. but does not specify the relevant statutory sections of those Acts.

 To the extent that the wrongful discharge claim is based on the LMRA, it must be considered to be brought pursuant to section 301 of the LMRA, 29 U.S.C. § 185. ...

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