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February 16, 1990


The opinion of the court was delivered by: Glasser, District Judge:


Plaintiff, a former employee of the United States Postal Service, ("USPS") filed this complaint alleging that USPS had wrongfully suspended him from employment from April 1, 1983 to February 23, 1985 in violation of its national collective bargaining agreement with the National Association of Letter Carriers ("NALC"), of which Caputo was a member, and that NALC and its affiliate, Branch 99 of NALC ("the union") breached their duty to fairly represent plaintiff in his dispute with the Postal Service. Jurisdiction is predicated on Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a) and Section 1208(b)-(e) of the Postal Reorganization Act, 39 U.S.C. § 1208(b)-(e).

On February 19, 1988 defendant United States Postal Service, joined by Defendant Branch 99, National Association of Letter Carriers moved this court for summary judgment. For the reasons set forth below, I hereby grant in part and deny in part defendants' motion.

Plaintiff Caputo, while in the employ of the Postal Service as a letter carrier assigned to the Staten Island, New York Post Office, was a member of the Naval Reserve who in February, 1983 was called to active duty for training in Hawaii. On or about February 13, 1983 while on liberty in Honolulu, Caputo was arrested by civilian police and charged with drinking in public, possession of narcotics and resisting arrest. He was detained for forty hours and then released. Plaintiff returned home and on or about March 12 or 13, when he reported to the Navy Reserve for weekend duty, he was placed under arrest by his unit commander and charged with the same conduct that had led to his arrest in Hawaii, in addition to a charge that he was AWOL for the period of detention in Hawaii. Caputo was placed in custody by the Naval Reserve until March 30, 1983 when Judge Henry Bramwell of this Court ordered his release. (CV 83-1229, March 30, 1983.) Plaintiff collected unemployment until December, 1983 and in January, 1984 obtained a job with the Raytheon Company. On July 23, 1984 he began working for the New York City Sanitation Department. On that same date the United States Military Court of Appeals dismissed the court martial charges against Caputo.

On March 30, 1983 Caputo presented Judge Bramwell's order to the Staten Island station where he worked and was informed by his supervisor and by the head of personnel for Staten Island that he would not be permitted to return to work. The head of personnel sent Caputo a letter on April 1, 1983 confirming that he would be suspended until the Postal Inspector's office investigation was completed. Caputo also spoke to the Union shop steward, Anthony Ciarmella, who told him that he had resigned as steward and that he should speak to Paul Daloio, the Union president. According to Caputo, on the evening of March 30, 1983 he went to Daloio's home to discuss the situation and Daloio told him that the Postal Service could refuse to let him work until the court martial proceeding was cleared up. Caputo testified that when he presented Daloio with a copy of Judge Bramwell's decision Daloio "was very pleased that I had that order. He made a copy of it. He has a copy machine in his office there. He said that he would get my job back. He said he would file a grievance timely and everything, and he would take care of things for me. He told me to keep him posted with any updates that I could give him and he would keep me posted." Deposition of Martin Caputo, October 9, 1986 at p. 111. (Hereinafter, "CAPUTO II")*fn1 When questioned during the deposition about the filing of the grievance, Caputo said that Daloio "did say that he wasn't sure when to file that grievance. He said he had to find out if he was supposed to file it then or after the Court case, but whatever, that he would file it timely and take care of everything." CAPUTO II at 113. When asked whether Daloio actually said he was going to file something immediately or rather that he would review the situation and learn about the status of the court case and then file the grievance, Caputo testified that: "(Daloio) wasn't sure. He said he would immediately take action. He wasn't sure as to when to file the grievance, but he was immediately going to look into things. If it had to be done right away he was going to do it. . . . He definitely did say he was going to file it, but not if it wasn't time to file yet, then he can't file." CAPUTO II at 115.

Daloio testified in his deposition that the first time he ever met Caputo, and the first time they discussed his grievance in person, was at a meeting in Daloio's home in August, 1984 when the plaintiff brought over the documents regarding the court martial, i.e., indicating that the Court of Military Appeals had dismissed the charges. Deposition of Paul Daloio, May 18, 1986 at p. 13.

The collective bargaining agreement negotiated by USPS and NALC applicable to Caputo's employment provides a grievance arbitration procedure for the resolution of disputes.*fn2 This procedure consists of three "steps" which may culminate in binding arbitration. Step 1 is an oral discussion held between the affected employee and/or a local union shop steward and the employee's immediate supervisor. The Agreement provides that grievances must be initiated by the employee, and may be initiated by the Union, within 14 days after the employee is aggrieved. If the parties do not resolve the grievance, it may then be appealed to Step 2 by the Union. At Step 2, a meeting is typically held between a local union officer and the Postmaster of the post office or his designee. The Union can appeal a Step 2 decision to Step 3, which consists of a meeting between regional representatives of USPS and NALC. At each Step, union and management have authority to enter into a binding settlement of the grievance and if no settlement is reached, NALC can appeal a grievance from Step 3 to final and binding arbitration.

Defendants,*fn4 the moving party, take the position that even according to Caputo's version of events, they should be granted summary judgment. On a motion for summary judgment the moving party bears the burden of establishing that there is no genuine issue of material fact to be submitted to the trier of fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). As the Second Circuit recently articulated it, the general rule in a summary judgment motion is that "all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Brady v. Town of Colchester, 863 F.2d 205 (2d Cir. 1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2, 106 S.Ct. 2548, 2556-57 n. 2, 91 L.Ed.2d 265 (1986) and Adickes v. S.H. Kress & Co., 398. U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970).) For purposes of this motion, defendants-movants apparently concede plaintiff's version of the facts and conclude that Caputo's own "deposition testimony fails to disclose facts sufficient to establish a breach of the duty of fair representation," not only on the issue of timeliness but also on the allegations of failure to inform plaintiff on the progress of his grievance and of bad faith in agreeing to the terms of the settlement. (Def. Memorandum In Support of its Motion for Summary Judgment at 4.) (Hereinafter "Def's memo") Plaintiff's position is that an issue of material fact exists on the question of when plaintiff first requested the union's assistance and that "if Plaintiff's testimony is credited by the trier of fact Branch 99 has breached its duty of fair representation." (Pl. Memorandum in Opposition to Defendant's Motion for Summary Judgment) (Hereinafter "Pl. memo") Plaintiff apparently misunderstands defendants' position, which, as indicated above, concedes plaintiff's version of the facts for purposes of this motion.*fn5

Breach of Duty of Fair Representation by Untimely Filing of Grievance

On the facts asserted by the plaintiff, the question presented is whether the union's failure to file a grievance until August 1984 after having been informed of the facts by plaintiff on March 30, 1983 and having assured him that his rights would be preserved constitutes a breach of the union's duty of fair representation. Defendant's position is that these facts do not constitute such a breach and that therefore summary judgment is in order.

In Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842 (1967), the Supreme Court articulated the duty of fair representation:

  Under this doctrine, the exclusive agent's
  statutory authority to represent all members of a
  designated unit includes a statutory obligation
  to serve the interests of all members without
  hostility or discrimination toward any, to
  exercise its discretion with complete good faith
  and honesty, and to avoid arbitrary conduct.

Having found that duty implicit in the National Labor Relations Act because of its grant to the union of the exclusive power to represent all employees of a bargaining unit, the Court found the duty breached "only when a union's conduct towards a member of the collective bargaining unit is arbitrary, discriminatory or in bad faith." Vaca, 386 U.S. at 190, 87 S.Ct. at 916 (citations omitted). Vaca involved a suit for damages brought by an employee against his union for failure to process his grievance through to arbitration. The Court enunciated the standard applicable to judicial review of the union's behavior in this context by stating:

  Though we accept the proposition that a union may
  not arbitrarily ignore a meritorious grievance or
  process it in a perfunctory fashion, we do not
  agree that the individual employee has an
  absolute right to have his grievance taken to
  arbitration regardless of the provisions of the
  applicable bargaining agreement. Id. at 191, 87
  S.Ct. at 917.

Plaintiff takes the position that the union's failure to process his grievance for approximately sixteen months evidenced a "total lack of interest in and indifference toward (sic) plaintiff's rights," (Pl. memo at 14), which, while not resulting from discrimination or bad faith, violates the Vaca proscription against arbitrarily ignoring a meritorious grievance or processing it in a perfunctory fashion. The defendant union concedes that the grievance was not filed until August, 1984 but characterizes this omission as "a single error in judgment" and a "mistake," which in the absence of "any additional evidence of invidious misconduct" does not constitute a breach of the duty of fair representation. (Defendant Branch 99's Memorandum at 21.) (Hereinafter "Def. Reply")

A union may breach the duty of fair representation "even in the absence of bad faith or ill will, by conduct or omission which is arbitrary or irrational." Richardson v. City of New York, 87 CV 214, 1988 WL 156324 (E.D.N.Y.) 1988 U.S. Dist. LEXIS 16740, citing N.L.R.B. v. Local 282, Intern. Broth. of Teamsters, 740 F.2d 141, 147-48 (2d Cir. 1984). In NLRB v. Local 282, the Court found that the union's failure to provide adequate notice of an arbitration award to all affected employees was arbitrary and constituted a breach of the duty of fair representation. 740 F.2d at 148. "(A)rbitrary conduct amounting to a breach is not limited to intentional conduct by union officials but may include acts of omission which, while not calculated to harm union members, 'may be so egregious, so far short of minimum standards of fairness to the employee and so unrelated to legitimate union interests as to be arbitrary.'" (citations omitted) Id. at 147. At issue in this case is whether the union's failure to file the grievance in this context is an omission that is properly characterized as arbitrary or irrational.

In this Circuit, neither tactical errors nor ordinary negligence constitute a breach of the duty of fair representation. "Proof of mere negligence or errors of judgment . . . is insufficient. . . . 'As long as the union acts in good faith, the courts cannot intercede on behalf of employees who may be prejudiced by rationally founded decisions which operate to their particular disadvantage.'" Barr v. United Parcel Service, Inc., 868 F.2d 36, 43-44 (2d Cir. 1989), cert denied, ___ U.S. ___, 110 S.Ct. 499, 107 L.Ed.2d 502 (1989) (tactical decisions made by union in grievance procedure do not constitute breach despite possibility that in hindsight they were erroneous) quoting Cook v. Pan American World Airways, Inc., 771 F.2d 635, 645 (2d Cir. 1985), cert denied, 474 U.S. 1109, 106 S.Ct. 895, 88 L.Ed.2d 929 (1986) (quoting Capobianco v. Brink's Inc., 543 F. Supp. 971, 975 (E.D.N.Y. 1982), aff'd mem., 722 F.2d 727 (2d Cir. 1983)). Defendant characterizes the untimely filing as a mere mistake or error or judgment and cites Capobianco to support that proposition.*fn6

While the Court in Capobianco did state that a plaintiff must show more than mere negligence or errors of judgment on the part of the union, it also stated that an employee who shows arbitrary or irrational conduct could prevail on such a claim. 543 F. Supp. at 975. A union's good faith act or omission is beyond the reach of the judiciary if and only if that action is based on a reasoned decision. As indicated in Barr, the Capobianco decision holds that "good faith actions based on 'rationally founded decisions' are immune from court intervention." (emphasis added) Id. In that case, plaintiff disputed the union's decision not to initiate proceedings to vacate a modified arbitrator's award which upheld his discharge. Id. at 974. Although the union had opposed the company's application to reconsider the earlier award which concluded that plaintiff and two other members should be suspended without pay, the Court found that:

  (T)he union's position that the arbitrator's
  modified decision reached the just result is
  wholly supported by the record . . . (and)
  plaintiff has offered no evidence that the
  union's position was not the result of
  reasoned discretion in weighing the interests of
  the entire bargaining unit against those of an
  individual incorrigible employee. . . . In this
  circumstance, the union's deliberated decision not
  to pursue Capobianco's cause was neither irrational
  nor arbitrary. (emphasis added) Id. at 976.

In a somewhat different setting, the Second Circuit has held that decisions made without a rational basis are arbitrary and thus actionable. In Jones v. Trans World Airlines, Inc., 495 F.2d 790 (2d Cir. 1974), the Court held that a collective bargaining agreement which discriminated in seniority based solely on union membership was a breach of the duty of fair representation. "Bad faith or hostile discrimination is certainly a sufficient condition to evidence an irrational decision, but it is not a necessary condition. It is also sufficient that a distinction be arbitrary or not based on some rational consideration." (citation omitted) Id. at 798. In a breach of the duty of fair representation case the Fourth Circuit stated that in order to avoid acting in an arbitrary fashion, "a union may refuse to process a grievance or handle a grievance in a particular manner for a multitude of reasons, but it may not do so without reason, merely at the whim of someone exercising union authority." Griffin v. International U., United Automobile, A. & A.I.W., 469 F.2d 181, 183 (4th Cir. 1972).

In this case, defendant has not argued that the union's decision not to file Caputo's grievance until August, 1984 was the result of a reasoned and deliberated process. Defendant contends that "the most that Caputo has shown is that the Union committed a single error in judgment in deciding when to file his grievance." (Def. memo at 21.) However, defendant has not shown this error resulted from an exercise of judgment, i.e., that it was a determination based on a consideration of relevant factors as to when the grievance should be filed. Daloio testified that at the time Caputo was suspended he had no prior experience dealing with members charged with criminal offenses, but that he subsequently learned that the proper way for the union to proceed when faced with an indefinite suspension was to immediately take it to grievance to protect the rights of the union member within ...

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