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September 7, 1982

HECTOR MATOS, Plaintiff,

The opinion of the court was delivered by: PLATT



 In this action Hector Matos sues his former employer, Aeronaves De Mexico, S.A. ("Aeronaves") for violation of the collective bargaining agreement and his union, District 146 of the International Association of Machinists and Aerospace Workers ("I.A.M."), for violation of its duty of fair representation. Jurisdiction of this Court is invoked under 28 U.S.C. § 1332 and under the Railway Labor Act, as amended, 45 U.S.C. §§ 151 et seq., extended to airline carriers by 45 U.S.C. §§ 181 et seq. and is not contested. *fn1"

 Plaintiff was discharged from employment as a passenger and sales service representative by Aeronaves on February 9, 1978 for insubordination when he allegedly refused several direct orders to perform the duties of cashier. (Stip. Facts, 1, 3, 5, 9, 10). On February 24, 1968 he returned to work until his suspension and discharge were upheld on March 7, 1978, after a three-hour hearing attended by the plaintiff, the hearing officer, the Assistant General Chairman of District 146, I.A.M., the airport union shop steward (both representing plaintiff), a company representative and several company employees. *fn2"

 Defendant I.A.M. contends that through its efforts plaintiff was able to return to work after his suspension and discharge, (a right not available under the collective bargaining agreement) pursuant to an agreement between all parties that the hearing on March 7, 1982 would be final and binding. Plaintiff alleges that he was not aware of any such agreement when he returned to work or at the subsequent hearing, and first became aware of said agreement when his union thereafter refused to proceed to arbitration with his wrongful discharge grievance. *fn3" He claims that his discharge was without just and sufficient cause because he provided reasonable grounds for his refusal to perform as cashier (lack of proper training) and suggested to the company lawful alternatives (another employee qualified as a cashier was on duty) and that for these reasons Aeronaves should have imposed a less harsh punishment than discharge. (Stip. Facts 4).

 Plaintiff seeks money damages for back pay and related benefits, counsel fees, and reinstatement to his former job with Aeronaves. After consideration of all the evidence adduced at a bench trial conducted on November 30, 1981, December 1, 1981 and January 14, 1982, we find plaintiff's claims to be without merit.

 Before trial the parties stipulated to the following facts:

 1) Plaintiff, Matos was employed by Aeronaves as a "Passenger Sales and Service Representative-Airport" during the dates set forth in the complaint* and that such employment was subject to the terms, conditions and provisions of a collective bargaining agreement between the respective defendants, Aeronaves and I.A.M.

 2) That as a "Passenger Service and Sales Representative-Airport", the duties of the plaintiff were, inter alia,

He shall sell and issue tickets at the airport, answer telephones, and provide information, make reservations at the airport, collect fares including excess baggage charges. He shall calculate and issue ticket refunds and prepare documents related to credit sales. He shall be responsible for the petty cash and accountable forms provided to him by the company. The agent shall be responsible for all monies collected in any form along with the accountable forms reports. He shall turn the money and above described documents over to the supervisor in charge of his shift. The supervisor shall give the agent a receipt for the money and documents received. He shall make all the sales reports from his work, prepare and transmit a transmittal form for tickets. He shall convey messages to passengers and other necessary agencies and process all lost and found articles and damaged baggage claims. The agent shall be capable of performing as agent in control of each flight. Such agent in control shall be responsible for effective utilization of seating capacity for the flight.
He shall perform routine duties pertaining to his job description. He must be familiar with and have sufficient knowledge with tariffs applicable to the transportation he sells and with rules and regulations pertaining to such air travel.

 3) On February 9, 1978, at approximately 3:30 P.M. while Matos was on duty, Aeronaves Assistant Station Manager Velarde verbally told Matos to act as cashier, which was one of the duties specified for Matos' job classification as set forth in Paragraph 2 above.

 4) Plaintiff informed Velarde he had not been properly trained for cashier duty and that he would rather not be required to perform the duty and that other competent personnel were available.

 5) Velarde told plaintiff Matos to either take up the duties of cashier or punch out and go home.

 6) That Grievance Procedures were provided for in the Collective Bargaining Agreement.

 7) (a) That Article XVIII(A) (12) of the Collective Bargaining Agreement provides,

"It is understood and agreed that the Company has the right to discipline or discharge an employee for just and sufficient cause within ten (10) days of learning of any evidence of wrong-doing on the part of such employee."

 (b) That Article XVIII(A) (13) of the Collective Bargaining provides,

"No employee under the terms of this Agreement, who has been in the service of the Company for more than ninety (90) days will be disciplined to the extent of loss of pay, suspended or discharged without first having the benefit of a fair and impartial meeting with a Union official present, except employees involved in stealing, under the influence of drugs and/or alcohol, sabotage, fighting on the job, or refusal to follow a direct order."

 8) During February 9, 1978 as a result of the incident with Velarde, plaintiff contacted his union representatives, the same being those of defendant I.A.M., and informed them of his problem.

 9) At no time on February 9, 1978, did plaintiff perform duties of cashier in compliance with the order given by Velarde.

 10) That on February 10, 1978 plaintiff was notified by Aeronaves' station manager, one Roesslein, in writing, that his employment was terminated for having refused a direct order to perform as cashier.

 11) That as a result of receiving notice of termination, plaintiff, pursuant to the terms of the collective bargaining agreement, was off payroll and defendant was not obligated to accept his services if preferred.

 12) On February 13, 1978, the defendant, I.A.M. sent a letter to defendant Aeronaves concerning the failure by Aeronaves to train cashiers properly.

 13) On or about February 24, 1978, following conversations between representatives of the two defendants, Matos was permitted to return to work by Aeronaves until a final hearing and decision on his dismissal.

 14) On February 24, 1978, upon his return to work at Aeronaves, plaintiff signed the following statement, "I, Hector Matos, concur to return to work at Aeromexico until a final hearing and decision will be held regarding my dismissal."

 15) A meeting was held on March 7, 1978 at which Carlos M. Gutierrez, Divisional Manager for Aeronaves acted as hearing officer. Among others present were Earl G. Kehoe, Industrial Relations Counsel for Aeronaves; James Haga, Assistant General Chairman of I.A.M. John Tague, Shop Steward for I.A.M.; the plaintiff, Hector Matos; Henry F. Velarde, Assistant Station Manager for Aeronaves and Cruz Fernandez, passenger sales and service supervisor for Aeronaves.

 16) At the aforesaid meeting testimony was taken, evidence produced and those present had the opportunity to examine and cross-examine.

 17) After the conclusion of the aforesaid meeting, Carlos M. Gutierrez verbally upheld the dismissal of Matos and subsequently issued his decision to that effect in writing.

 18) That upon receipt of the meeting's results, plaintiff Matos submitted an appeal from the decision.

 19) That by letter dated March 17, 1978, Haga informed plaintiff that the Union would not proceed with processing plaintiff's grievance.

 20) That on March 29, 1978 Haga, by letter, refused to process the grievance.

 21) Matos had not served as cashier between October 29, 1977 and February 9, 1978; a period of over three months.

 22) On February 9, 1978 during the shift when Matos was working, there was one departing flight and two arriving flights.

 23) Matos worked for Aeronaves from October 24, 1976 to March 7, 1978, a period of almost a year and one-half with no prior disciplinary record or warnings.

 24) Matos' experience as a cashier consisted of four months working at a hotel night club cash register in 1962, and his job with Aeromexico [Aeronaves] where he performed services as cashier on various occasions during his employment. If he was cashier on a morning flight, it was for about an hour until the flight went out. If it was on the evening shift, he was cashier from 4:00 P.M. until the flight left.

 25) By letters dated November 11 and November 14, 1977, plaintiff was directed by defendant, Aeronaves, to correct certain administrative errors which he had made while serving as cashier and said letters imposed no penalty or discipline on plaintiff Matos.

 26) Article IV of the collective bargaining agreement between Aeronaves and I.A.M. sets forth the duties of the Passenger Sales and Service Supervisor. In part, the agreement provides:

"A Passenger Sales and Service Supervisor is directly responsible . . . for directing and coordinating as necessary the work of the Passenger Sales and Service Agent personnel assigned to his tour of duty."
"He shall be capable of and provide training and instructions to all passenger sales and service agents as required." (Emphasis supplied)
"He shall investigate any irregularities pertaining to the work of agents under his supervision and shall report same to the Station Manager or his designee."

 27) Earl G. Kehoe, Industrial Relations Counsel for Aeronaves agreed that [in] a hearing or an arbitration involving a case such as this case, the hearing officer or arbitrator had authority to review the penalty as well as the finding of guilt or innocence.

 28) The agreement alleged by Aeronaves to have been made between it, the I.A.M. and Matos, provided that if the hearing officer, Carlos M. Gutierrez, a divisional manager for Aeronaves, found that Matos disobeyed a direct order then the dismissal would be upheld.

 29) The alleged agreement between I.A.M. and Aeronaves took place prior to the hearing on March 7, 1978, and in substance provided that the decision by Gutierrez would be final and binding on all parties.

 30) On February 9, 1978, Jim Haga told Matos over the telephone to perform his duties as cashier.


 "A breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 916, 17 L. Ed. 2d 842 (1967); Ruzicka v. General Motors, 649 F.2d 1207 (6th Cir. 1981). Conduct is arbitrary if it is without a rational basis, Robesky v. Qantas Empire Airways Limited, 573 F.2d 1082 (9th Cir. 1978), but negligent conduct or poor judgment, without more, is not enough to breach the duty of fair representation. Bazarte v. United Transportation Union, 429 F.2d 868, 872 (3d Cir. 1970). However, to fail to investigate a meritorious grievance or to process it in a perfunctory fashion may be arbitrary. Vaca v. Sipes, supra; see also, Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S. Ct. 1048, 47 L. Ed. 2d 231 (1976). Unintentional acts or omissions may be arbitrary if they reflect reckless disregard for the rights of the individual employee. Nondisclosure of information to the employee, resulting particularly in the loss of employment, has been a factor in holding that the duty of fair representation has been breached, *fn4" but the Second Circuit has held that evidence of bad faith is required in a nondisclosure case to show a breach of the duty of fair representation. Pyzynski v. New York Central Railroad, 421 F.2d 854 (2d Cir. 1970).

 Under the Railway Labor Act, extended to air carriers by 45 U.S.C. §§ 181 et seq., all parties are required to try to settle a dispute before invoking the formal arbitration procedures for either major or minor disputes. Elgin, Joliet & Eastern Railway Co. v. Burley, 325 U.S. 711, 65 S. Ct. 1282, 89 L. Ed. 1886 (1945), on rehearing, 327 U.S. 661, 66 S. Ct. 721, 90 L. Ed. 928 (1946). An employee has no absolute right to have his grievance arbitrated:

. . . In providing for a grievance and arbitration procedure which gives the union discretion to supervise the grievance machinery and to invoke arbitration, the employer and the union contemplate that each will endeavor in good faith to settle grievances short of arbitration. Through this settlement process, frivolous grievances are ended prior to the most costly and time-consuming step in the grievance procedures. Moreover, both sides are assured that similar complaints will be treated consistently, and major problem areas in the interpretation of the collective bargaining contract can be isolated and perhaps resolved. And finally, the settlement process furthers the interest of the union as statutory agent and as coauthor of the bargaining agreement in representing the employees in the enforcement of that agreement. . . .
If the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery provided by the contract would be substantially undermined, thus destroying the employer's confidence in the union's authority and returning the individual grievant to the vagaries of independent and unsystematic negotiation.

 Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 917, 17 L. Ed. 2d 842 (1967).

 Nor does a union breach its duty of fair representation merely because it settled the grievance short of arbitration. Id. at 918-19.


 Plaintiff first asserts that the union acted in bad faith and in an arbitrary and capricious manner when it agreed with defendant Aeronaves to waive its right to arbitrate plaintiff's discharge prior to the March 7, 1978 hearing. He argues that the union acted arbitrarily and in bad faith because once it waived arbitration, plaintiff clearly lost any possibility of receiving a fair and impartial hearing and decision, from a hearing officer who was a company official. The affiliation of the hearing officer, Mr. Gutierrez, with Aeronaves, does not compel a conclusion that he was incapable per se of conducting a fair hearing. *fn5"

 Moreover, prior to the hearing, the union appears to have made not an arbitrary, but a well-considered decision, with the plaintiff's best interests in mind, when it requested that Mr. Gutierrez act as the hearing officer. Mr. L. T. Faircloth, international representative for I.A.M., testified that prior to any agreement about the proposed final and binding nature of the hearing, he specifically negotiated with the company representative, Mr. Earl Kehoe, for the assignment of Mr. Gutierrez as the hearing officer. He did so because in his dealings with all the major carriers, Mr. Gutierrez in his opinion was one of the fairest men in regards to his employees. (Tr. III-41, 42). Mr. Jim Haga, a District 146 I.A.M. representative, testified that he had submitted several cases to Mr. Gutierrez which were decided favorably for the union. (Tr. III-13, 21).

 Plaintiff appears to make no allegations that once it occurred, his hearing was unfair or that the hearing officer, Mr. Gutierrez, exhibited bias against him because of the hearing officer's position as a company officer. The record in no way supports such a finding. At the hearing Mr. Matos was represented by two union officials, Mr. Jim Haga, Assistant General Chairman of District 146, I.A.M., and Mr. John Tague, the airport union shop steward, and he was given the opportunity to testify and cross-examine all witnesses. *fn6" Mr. Gutierrez had never met the plaintiff prior to the hearing. In fact, Mr. Matos had very little complaint about the way his hearing before Mr. Gutierrez was handled. (Tr. I - 96-97).

 The Third Circuit has clearly characterized the informal nature of the arbitration process.

"There must also be, however, due regard for the fact that both advocates and the tribunal members are laymen, unlikely to be impressed by evidential nuances and cumulative testimony dear to the heart of trial advocates. If the panel had the essential facts before it, a decision adverse to the employee does not establish a breach of duty of fair representation, even if a court would have come to a different conclusion in passing on the merits of the grievance."

 Findley v. Jones Motor Freight, Division Allegheny Corp., 639 F.2d 953, 964 (3d Cir. 1981). The hearing appears to have been conducted in a fair, impartial manner and the plaintiff has not alleged otherwise. The mere fact that the hearing officer, Mr. Gutierrez, was Divisional Manager for the United States for Aeronaves does not establish that the union acted arbitrarily in its negotiations with Aeronaves or in any way that would constitute a breach of its duty of fair representation.


 The gravamen of Mr. Matos' suit is that he was never consulted or informed by the officials of his union that they had waived the union's right to proceed to arbitration in order to enable him to return to work prior to the hearing. (Tr. I - 56, 58). The weight of the evidence adduced at trial does not support his contention. Plaintiff is the only witness who testified that he was not informed or aware (either prior to his return to work on February 24, 1978 or at the hearing on March 7, 1978) that the March 7, 1978 hearing was "final and binding" on all parties. We are unable to credit his claim in light of all the evidence in this case, including without ...

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