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GIORDANO v. LOCAL 804

May 20, 1986

ROGER GIORDANO, Plaintiff,
v.
LOCAL 804, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA and UNITED PARCEL SERVICE (New York), Defendant.



The opinion of the court was delivered by: SPRIZZO

SPRIZZO, D.J.

OPINION AND ORDER

 BACKGROUND

 This action was brought by Roger Giordano pursuant to Section 301 of the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185 (1947). Plaintiff seeks reinstatement to his former position and damages against his former employer, United Parcel Service ("UPS"), for alleged unlawful discharge without cause in violation of the applicable collective bargaining agreement ("CBA"), and damages against Mr. Giordano's exclusive bargaining agent, Local 804, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America ("Local 804" or the "Union"), for an alleged breach of the Union's duty to fairly represent plaintiff in the grievance procedure undertaken pursuant to the CBA. See Complaint, PP 18, 22. Plaintiff seeks retroactive reinstatement by UPS to his former position as a feeder driver (truck driver), and $150,000.00 in damages and $500,000.00 in punitive damages from either UPS or the Union, or both. See Complaint at 5-6.

 Pursuant to a Stipulation and Order dated February 6, 1985, the parties agreed to waive their rights "to a [t]rial before the Judge," and "to have the Court hear and observe the respective witnesses as they testify," instead allowing this Court to rule on the issue of whether Local 804 breached its duty of fair representation based on the papers submitted. *fn1" For the reasons stated below, and assuming the facts to be as stated in the papers submitted, the Court concludes that Local 804 did not breach its duty of fair representation to plaintiff.

 FACTS

 Plaintiff was discharged from employment as a truck driver by UPS on July 27, 1982 for "hanging-out," "failure to follow instructions," and "gross insubordination." See Complaint at P 6. The incident in question grew out of Mr. Giordano's "hanging-out" at a diner beyond the time allotted for lunch breaks. Following the initial confrontation by his supervisors, plaintiff apparently failed to follow instructions, and was grossly insubordinate. See Deposition of Giordano ("Pl. Dep.") at 66-71. Plaintiff filed a grievance with the Union, contending that this discharge was without just cause. See Complaint at P 9. The grievance procedure established by the collective bargaining agreement was expedited to Step Two, and a meeting was held between representatives of the Union and UPS on July 27, 1982. See Complaint at PP 11, 13. At this juncture, UPS refused to reinstate plaintiff. See Declaration of Redmond ("Redmond Dec.") at P 6.

 The CBA provides that a filing to proceed to arbitration, accompanied by a $200.00 fee, must be made within ten days of the completion of Step Two of the grievance procedure. See CBA § 20. Following the Step Two meeting held on July 27, 1982, Local 804 did not file for arbitration until August 26, 1982. See Complaint at P 13; Redmond Dec. at PP 6-8; Deposition of Redmond ("Redmond Dep.") at 15; P. Dep. at 85-87, 114-15.

 Local 804's delegate/trustee, Mr. Redmond, gave two reasons for the Union's apparent disregard of the ten-day filing deadline. First, it was past and standard practice between the Union and UPS to conduct informal negotiations in lieu of immediately proceeding to arbitration to reconcile grievances. See Redmond Dep. at 12-13; Redmond Dec. at P 11. Second, Mr. Redmond did not consider Step Two of the grievance procedure complete until these standard informal negotiations were exhausted. See Redmond Dep. at 14, 21.

 Subsequently, when the grievance was presented at arbitration, UPS raised the ten-day filing deadline as a defense, and the arbitrator ruled that plaintiff's grievance was time-barred under the terms of the CBA, which includes a provision directing strict construction of its time limitations. See Exhibit A to Complaint ("Ex. A") (Opinion of Arbitrator); see also CBA § 20(3). Thus, the arbitrator ruled that the grievance was non-arbitrable under the terms of the collective bargaining agreement, thereby sustaining the discharge of Mr. Giordano without ruling on the merits. *fn2"

 As part of its past practice of informal negotiation with the Union, UPS had never previously invoked the ten-day filing deadline as a defense in an arbitration proceeding. See Redmond Dep. at 13; Redmond Dec. at P 10. Plaintiff, an alternate shop steward for the Union, was aware of the ten-day filing deadline, although he was not cognizant of the effect of its application. See Giordano Dep. at 6, 35-36. plaintiff was also aware Of the informal negotiations being conducted to secure his reinstatement by his Union with UPS subsequent to the Step Two meeting. See id. at 85-86.

 DISCUSSION

 To maintain his hybrid claim against both UPS and Local 804, plaintiff must establish that the Union breached its duty of fair representation. *fn3" In Section 301 claims for reinstatement and damages, the Supreme Court has characterized the employee's demonstration that the union breached its duty of fair representation as "the indispensable predicate" to maintain an action for breach of the collective bargaining agreement against the employer. See United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 62, 67 L. Ed. 2d 732, 101 S. Ct. 1559 (1981); cf. Vaca, supra note 3, 386 U.S. at 185.

 To establish that Local 804 breached its duty of fair representation, plaintiff-employee must prove that the union's conduct was arbitrary, discriminatory, or in bad faith. See Vaca, supra, 386 U.S. at 190. Plaintiff-employee is not entitled to relief if he merely shows ...


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