The opinion of the court was delivered by: POLLACK
Jose Johnson v. Soft Drink Workers Union, Local 812, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Pepsico, Inc., Pepsi-Cola Company, Pepsi-Cola Bottling Company, Inc., d/b/a Pepsi-Cola Bottling Group, 83 Civ. 2388 (MP)
Plaintiff brings this action against his former employer and his union claiming that the union breached its duty of fair representation to him in connection with the arbitration proceedings regarding his discharge. The Pepsi-Cola defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The defendant union has moved to dismiss the complaint for failure to state a claim and for summary judgment. For reasons stated below, the motions for summary judgment are granted and the complaint is dismissed.
Summary of Underlying Events
Until April 6, 1982, Jose Johnson was employed by Pepsi-Cola at its Long Island City, New York facility. While employed at Pepsi, he was a member of the defendant Soft Drink Workers Union, Local 812. On April 6, 1982, plaintiff was discharged for dishonesty after he was caught stealing from Pepsi-Cola. The collective bargaining agreement in effect between the parties provides as follows:
Either COMPANY may discharge any employee for dishonesty or drunkenness during time of employee's guilt of dishonesty or such drunkenness, it may refer such dispute to arbitration as provided for above.
If either COMPANY desires to take disciplinary action against any employee for any reason other than dishonesty or drunkenness during the time of employment, it shall consult the UNION, and in the event the parties disagree as to the extent of the discipline to be imposed, their dispute shall be referred to arbitration as hereinabove provided and the Arbitrator shall determine whether any discipline shall be imposed, and if so, the extent of the discipline.
No employee shall be laid off pending arbitration of his case.
Article 13, June 1, 1981, collective bargaining agreement.
Thus, Pepsi-Cola summarily discharged Johnson, relying on the first paragraph of this contract. Subsequently, pursuant to the collective bargaining agreement, the union demanded arbitration. In this demand, they asserted:
The issue to be arbitrated is the dismissal by the Company of Jose Johnson. We assert such dismissal to be improper and demand reinstatement with full back pay.
Letter to Silverman, April 12, 1982. Exhibit D, Motion of Soft Drink Workers Union to Dismiss.
Upon his request, plaintiff Johnson was represented by his own attorney at the arbitration proceeding. This same attorney represents him in this action. The ...