The opinion of the court was delivered by: NEAHER
MEMORANDUM OF DECISION AND ORDER
Plaintiff, a plumber and steamfitter, brought this action for reinstatement and damages under section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, against his former employer, R. H. Macy & Co., Inc. ("Macy's"), and against the union that represented him while an employee at Macy's, Enterprise Association, Steamfitters Local Union No. 638, Metal Trades Branch of the Associated Plumbers and Steamfitters, AFL-CIO ("the union"). Plaintiff, employed by Macy's since 1973, was discharged on March 15, 1976, for allegedly stealing soda from a restaurant in the store. He denied the charge and notified the union. Macy's and the union agreed to submit plaintiff's grievance to an arbitrator and a hearing was held where plaintiff's interests were represented by counsel supplied by the union. In a decision dated June 1, 1976, the arbitrator found
"that the Company (Macy's) did have just cause to discharge Elliot Baker under the Collective Bargaining Agreement." Defendant's Exh. A.
On April 29, 1977, plaintiff filed the instant action alleging, inter alia, that the union violated its duty of fair representation by failing: (1) to advise him that under the collective bargaining agreement arbitration was not the exclusive redress for discharge disputes; (2) to represent him adequately at the arbitration hearing; and (3) to attempt to vacate the adverse arbitration award.
By memorandum and order dated January 19, 1978, the Court dismissed as time-barred plaintiff's claims against Macy's,
and ruled that since the parties had consented to arbitration, an attempt to vacate the award on the ground that the arbitrator lacked jurisdiction would have been fruitless, and therefore the union did not breach its duty to plaintiff by failing to appeal on that ground. The case proceeded to a bench trial, and after hearing the parties' evidence and the arguments of counsel, the Court finds that the union did not breach its duty of fair representation owed to plaintiff. The following constitute the Court's special findings of fact and conclusions of law. Rule 52(a), F.R.Civ.P.
On March 14, 1976, plaintiff made a maintenance check of a refrigerator in Macy's Dutch Treat Restaurant, which was closed that day, a Sunday. Later that day two Macy's security guards confronted plaintiff and told him they had seen him pilfering cola from the soda machine in the Dutch Treat. The guards told plaintiff to go home, and reported the incident to Macy's chief of security. The next day plaintiff was asked to report to the security chief, who told him he was being discharged for violation of a company rule against stealing.
Plaintiff contacted Joseph Fitzgerald, the union's business agent, related his version of the incident and asked for the union's assistance. At that time, plaintiff said he would go to arbitration if he could not obtain reinstatement through more informal means. In an effort to reverse Macy's decision, Fitzgerald secured an opportunity for plaintiff to tell his story to Theodore Newman, Macy's Vice President for Personnel and Labor Relations. Newman thereafter reviewed the matter but concluded that Macy's strict policy of discharge for theft, regardless of the nature or value of the property involved, required confirmation of the dismissal. Macy's was experiencing annually approximately $ 35,000,000 in inventory "shortages" which were partly due to employee pilferage.
On April 15, 1976, plaintiff met in the executive offices of the union with Fitzgerald and Peter Kaiser, Esq., counsel to the union, to discuss the discharge and explore the available options. Kaiser is now deceased, but his testimony was preserved in the form of a deposition taken by plaintiff's present counsel and admitted in evidence by stipulation.
It was plaintiff's recollection that the only recourse discussed was arbitration. Fitzgerald testified, however, and in this regard was corroborated by the Kaiser deposition, that Kaiser told plaintiff he had a right to institute a civil action. It was explained to plaintiff why this route might entail greater delay than an arbitration proceeding, which Kaiser said he could arrange, if plaintiff desired, even though one was not expressly provided for in the collective bargaining agreement. The union generally takes grievances of this type to arbitration, which it has found to be a more informal and expeditious manner of dispute resolution. In addition, plaintiff was told that he would be permitted to have his own counsel, as well as one supplied by the union, at an arbitration hearing.
Plaintiff, who had already been out of work a month, was eager to resolve the matter quickly, and he repeated his earlier request that the union proceed to arbitration. The Court finds credible Fitzgerald's corroborated testimony and concludes that plaintiff was advised of the possibility of civil litigation as a remedy.
Kaiser spoke to counsel for Macy's and the two agreed to submit to arbitration the question whether the store had cause for discharging plaintiff. Thereafter, at plaintiff's suggestion, Kaiser interviewed Henry Pickrodt, an employee at Macy's who was on duty near the Dutch Treat on the afternoon of the alleged theft.
On May 18, 1976, the hearing was held under the auspices of the New York State Board of Mediation and lasted from approximately 10:00 a.m. until after 6:00 p.m. The union, on behalf of plaintiff, was represented by Kaiser, and Macy's was represented by S. Lester Block, Esq., Senior Vice President for Government Relations and Labor Counsel. The testimony of plaintiff and Henry Pickrodt each lasted over an hour and each was extensively cross-examined by Block and questioned by the arbitrator.
Macy's presented the two security guards who had been on duty near the Dutch Treat on March 14 and who testified to seeing plaintiff fill a plastic container from the restaurant's soda machine. They followed him to the plumbers' rest area and testified that when they confronted him with their observations, plaintiff admitted the theft but stated it was his first infraction and pleaded for leniency. The chief of security testified at the hearing and corroborated many of the events related by the guards. Theodore Newman, the Macy's Vice President who had previously reviewed plaintiff's discharge, ...