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PASSO v. USPS

March 17, 1986

IRA J. PASSO, Plaintiff,
v.
UNITED STATES POSTAL SERVICE, NATIONAL ASSOCIATION OF LETTER CARRIERS, and NATIONAL ASSOCIATION OF LETTER CARRIERS, BRANCH 36, Defendants



The opinion of the court was delivered by: CANNELLA

MEMORANDUM AND ORDER

 CANNELLA, D.J.:

 Defendants' motions for summary judgment are granted. Fed. R. Civ. P. 56(b).

 FACTS

 Plaintiff Ira J. Passo brings this action against his unions and employer. He alleges that the unions breached their duty of fair representation and the employer breached the collective bargaining agreement and plaintiff's fifth amendment rights.

 The undisputed facts are as follows. *fn1" Passo was an employee of the United States Postal Service ["USPS"] for fourteen years. Passo had been living with Geraldine Johnson, another USPS employee, for six years. On January 10, 1983, Johnson locked Passo out of their apartment. Johnson alleges that at approximately 6:00 a.m. the following day, Passo met her in the area of the time clock, at the FDR postal station where they both worked, and requested the keys to the apartment. Johnson claims that when she refused Passo punched her in the arm. Although Johnson did not report the incident to her supervisors at that time, she claims that she received a threatening phone call from Passo at 11:15 a.m., after which she reported both incidents to Postal Service Supervisor Joseph Krattinger. Johnson was treated at the Postal Service Medical Unit for a contusion. She received a thirty-day transfer to another station because she feared for her safety. Passo was suspended in contemplation of discharge and thereafter sought the aid of his union Branch 36 ["Branch 36"] of the National Association of Letter Carriers ["NALC"], in prosecuting a grievance with the USPS.

 The grievance procedure established in the Postal Service-NALC Collective Bargaining Agreement provides for several grievance steps to be followed by arbitration. Prior to filing a step 1 grievance, the union shop steward Larry Domfort reviewed the USPS file with Employee Services and met separately with Passo, Johnson, four or five co-workers of Passo who shared Passo's work station, and Sidney Smalls, another co-worker. Passo denied both incidents. Johnson did not retract her allegations but wanted the charges dropped. Smalls claimed that he was standing by the time clock when the alleged assault occurred and witnessed the punch. Passo's other co-workers provided no useful information. Domfort did not interview Johnson's work partners. Nor did he speak to the mail carriers on the route closest to where the punch allegedly occurred.

 On or about January 20, Domfort asked Johnson to write a statement requesting that Passo not be discharged. Johnson agreed and Domfort subsequently presented her letter to Station Manager Jasko. On January 25, a step 1 grievance proceeding was held. Domfort met with Krattinger and again presented Johnson's letter. In addition, Domfort argued that all the charges should be dropped because the matter amounted to no more than a lovers' quarrel. Krattinger indicated that he thought the charges were a "phony thing" but denied the grievance. At the step 2 meeting, Domfort again made the lovers' quarrel argument. Passo was also present and asserted that no incident occurred. The grievance was denied as was the step 3 grievance to follow.

 In a letter dated February 15, 1983, Branch 36 informed Passo that an arbitration was to be held on March 7, 1984 and that Passo was to attend a meeting with Danny Felton, Branch 36 vice-president, at the Union office on February 20. Passo, who was living in Florida at the time, responded some time after February 28 by calling Felton's office and leaving word that he would arrive in New York City for the arbitration by March 7. Felton met with Passo one-half hour before the arbitration hearing was to begin and then represented Passo at the arbitration.

 The hearing was brief. Krattinger, Johnson, Smalls and Passo were the only witnesses called to testify. Felton asked no questions of Passo. On questioning by the arbitrator, Passo denied that he ever touched Johnson. Johnson testified that Passo hit her while she was standing by the clock near the time cage. Smalls testified that the incident occurred by his route. Felton did not question either Johnson or Smalls with respect to their differing testimony. On summation, Felton argued that the matter was a lovers' quarrel.

 On May 29, 1984, the arbitrator upheld the discharge. Plaintiff then instituted this suit alleging six causes of action against the NALC and Branch 36 and four against the USPS. Plaintiff has since withdrawn several of these, leaving a claim against the NALC and Branch 36 for breach of the duty of fair representation and claims against the USPS for breach of the collective bargaining agreement and violation of plaintiff's fifth amendment rights.

 Defendants have moved for summary judgment arguing that the undisputed facts establish that the unions did not breach their duty of fair representation. Because all of plaintiff's remaining claims stand or fall on this issue, see Hines v. Anchor Motor Freight, 424 U.S. 554, 570-71, 47 L. Ed. 2d 231, 96 S. Ct. 1048 (1976), defendants seek dismissal of the complaint. For the reasons that follow, defendants' motions are granted.

 DISCUSSION

 A union's duty of fair representation requires that it represent fairly all employees when it bargains with the employer and administers the collective bargaining contract. See Ford Motor Co. v. Huffman, 345 U.S. 330, 97 L. Ed. 1048, 73 S. Ct. 681 (1953). The obligation is one of good faith and honesty. See id. at 338. Thus, a plaintiff may establish a breach of the duty only by showing that the union's actions were arbitrary, discriminatory or in bad faith, see Vaca v. Sipes, 386 U.S. 171, 190, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967); Jensen v. Farrell Lines, Inc., 658 F.2d 27, 29 (2d Cir. 1981), or that the union ignored the grievance or processed it in a perfunctory manner, see 386 U.S. at 191; Spielmann v. Anchor Motor Freight, Inc., 551 F. Supp. 817, 821 (S.D.N.Y. 1982). Proof of negligence or poor judgment is not enough. Graf v. Elgin, Joliet and Eastern Ry. Co., 697 F.2d 771, 778 (7th Cir. 1983); Harris v. Schwerman, 668 F.2d 1204, 1206 (11th Cir. 1982); Spielmann v. Anchor Motor Freight, Inc., 551 F. Supp. at 823; Capobianco v. Brink's Inc., 543 F. Supp. 971, 975 (E.D.N.Y. 1982), aff'd, 722 F.2d 727 (2d Cir. 1983).

 In the instant case, plaintiff contends that defendant unions treated his grievance in an arbitrary or perfunctory manner. He first points to the "lovers' quarrel" argument advanced by both Domfort at the step 1 meeting and Felton at the arbitration hearing and claims that such an argument compromised his position of innocence by attempting to justify the alleged incidents rather than denying that they occurred. As defendants point out, however, the unions' argument did not concede the assault but rather suggested that whatever took place was insufficient under the circumstances to constitute just cause for dismissal. In any event, the unions' choice of argument was not so irrational as to be arbitrary. See Jones v. TWA, 495 F.2d 790, 798 (2d Cir. 1974). At best, in this respect, plaintiff alleges negligence, which as previously noted is not actionable.

 Plaintiff next argues that Domfort's failure to interview Johnson's partner, Martha Cave, *fn2" and the employees on the route closest to where the incident occurred is evidence of the perfunctory consideration given his grievance. At her deposition in this action, Cave testified as follows:

 
Q. And when [Johnson] came to the route [on the day of the incident], did she say anything to you?
 
A. No, no more than speak.
 
Q. Did she say good morning?
 
A. Yes. She always did.
 
Q. Was she smiling?
 
A. Always.
 
Q. Did you say anything to her?
 
A. Most likely. We talked, always talked.
 
Q. Did you observe anything unusual about Geraldine Johnson's behavior before you went out on the route?
 
A. No.
 
Q. Did it appear to you at that time that business was proceeding as usual with regard to Johnson performing her functions as letter carrier, you performing your functions and Sidney Small performing his functions as letter carrier?
 
A. The same, usual.
 
Q. That is from the period of time from 6:00 o'clock when you clocked in and 8:00 o'clock, approximately, when ...

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