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November 5, 1982


The opinion of the court was delivered by: SAND


 Richard Spielmann brings this action against his former employer, Anchor Motor Freight, Inc. ("Anchor"), three of Anchor's supervisory employees, and Local 445 of the International Brotherhood of Teamsters ("Local 445" or "the Union") for damages, reinstatement to his former job and back pay. *fn1" Jurisdiction is based on § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, which allows suits in the federal district courts for violations of collective bargaining agreements where the parties are covered by the LMRA. Plaintiff, a member of Local 445, alleges that he was unfairly discharged from his position as a driver at Anchor's Tarrytown, New York facility in violation of the existing contract between Anchor and the Union. He also alleges that Local 445 failed to represent him adequately in the grievance and arbitration proceedings stemming from his discharge. In addition to these federal claims, Spielmann brings a pendent state tort claim of intentional infliction of emotional distress based on a number of incidents that occurred at the Tarrytown facility in the months prior to his discharge.

 The defendants have moved for summary judgment pursuant to Fed.R.Civ.P. 56, claiming that there exist no general issues of material fact supporting plaintiff's claims, and that they are entitled to judgment as a matter of law. All parties have submitted affidavits and memoranda of law. For purposes of this motion, Spielmann's version of the facts must be accepted, and all disputed matters must be resolved in his favor. Bishop v. Wood, 426 U.S. 341, 347 n.11, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976); Arnett v. Kennedy, 416 U.S. 134, 139-40, 40 L. Ed. 2d 15, 94 S. Ct. 1633 (1974).


 The plaintiff in this action, Richard Spielmann, was represented by Local 445 during the five years he was employed at Anchor's Tarrytown facility. During the period relevant to this action, Anchor and Local 445 were parties to a collective bargaining agreement which provided that all disputes between the parties relative to terms and conditions of employment were to be resolved by arbitration, and that all arbitration decisions were to be final and binding.

 The actions forming the core of plaintiff's § 301 and inadequate representation claims took place on December 3, 1981. According to Spielmann, on that day he returned from a four-day haul to find that he was being immediately assigned another long trip. After he was told of his new assignment, Spielmann was given two messages indicating that he should call his home. One message was received at the Tarrytown terminal the prior evening, the other several hours before he was given his new assignment. Upon calling home, he discovered that his child had taken ill and that his wife was without transportation to take her to receive medical attention. At this point, the plaintiff informed the Anchor dispatcher that he would not take the assigned load and that he had to leave. Anchor, disputing the bona fides of Spielmann's claim and stressing his willingness to accept another long haul trip given to a more senior driver, interpreted Spielmann's rejection of the assignment as a "voluntary quit" under the local rider to the bargaining agreement, and terminated him that day.

 Spielmann initiated grievance proceedings contesting his dismissal, the final step of which was a hearing held on December 16, 1981 before a six-member panel of the Eastern Conference Automobile Transporters Joint Committee, the body responsible under the collective bargaining agreement for deciding unresolved grievances. The Joint Committee is comprised of an equal number of management and union representatives.

 A business agent of the Union, a Mr. Doorhy, represented Spielmann before the panel and argued the merits of his case. Spielmann himself testified at the hearing, at which his credibility was a crucial issue. Both Doorhy and Spielmann contended that the illness of Spielmann's child provided just cause under the bargaining agreement for his refusal to accept his new assignment. At its conclusion, the panel found that Spielmann's refusal to accept a load constituted a "voluntary quit" under the bargaining agreement and upheld Anchor's termination action.

 Spielmann filed a charge with the NLRB several weeks later alleging that his discharge was prompted by his union activities and protests against working conditions. The NLRB Regional Director refused to issue a complaint, concluding that Spielmann's termination was based on his refusal to accept an assigned load in violation of the bargaining agreement. In June, 1982, Spielmann filed two more charges with the NLRB. One alleged that he had been discharged because he had circulated a petition criticizing management policies. The second alleged that Local 445 had failed to represent him adequately before the arbitration panel. The NLRB Regional Director refused to issue a complaint on either charge, finding insufficient evidence to establish either that Local 445 breached its duty of representation or that Anchor committed an unfair practice.

 The defendants move for summary judgment with respect to plaintiff's breach of contract and representation claims on the grounds that the decision of the arbitration panel is final and binding under the bargaining agreement, that the issues underlying plaintiff's claims have been previously litigated in defendants' favor before the NLRB, and that the plaintiff has failed to allege facts sufficient to show that the Union breached its duty of representation.


 Federal Claims2

 Ordinarily a binding arbitration clause guarantees the finality of arbitration decisions and protects the employer against subsequent suits for breach of contract under LMRA § 301. However, where the discharged employee can show that his union breached its duty of representation, and that such breach undermined the integrity of the arbitral process itself, then the union's breach removes the bar of the finality provision of the collective bargaining contract. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567-68, 47 L. Ed. 2d 231, 96 S. Ct. 1048 (1976). As the Court noted in Hines, "enforcement of the finality provision where the arbitrator has erred is conditioned upon the union's having satisfied its statutory duty fairly to represent the employee in connection with the arbitration proceedings." Id. at 571.

 To make out a claim that the union breached its duty of representation, the plaintiff must establish that the union's actions were "arbitrary, discriminatory, or in bad faith," that the grievance was processed in a "perfunctory fashion," or that the union conduct was "intentional, severe, and unrelated to legitimate union objectives." Amalgamated Association of Street, Electric Railway & Motor Coach Employees v. Lockridge, 403 U.S. 274, 299-301, 29 L. Ed. 2d 473, 91 S. Ct. 1909 (1971); Vaca v. Sipes, 386 U.S. 171, 190-91, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967); Jensen v. Farrell Lines, Inc., 658 F.2d 27 (2d Cir. 1981). Where the union has pursued the available grievance or arbitration procedure to a conclusion, as Local 445 has done in this case, the plaintiff must also establish that the union's breach caused the arbitrator to reach an erroneous conclusion. That is, ...

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