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March 13, 1990


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


In this case the Court is asked to determine whether, as a matter of law, an employer's discharge and a union's processing of a grievance and its decision not to pursue formal arbitration on behalf of a union member, breaches the terms of a collective bargaining agreement, and/or violates the provisions of the Federal Labor-Management Relations Act ("LMRA"), (29 U.S.C. § 185), the Labor-Management Reporting and Disclosure Act ("LMRDA"), (29 U.S.C. § 411[a][5]), and the New York State Human Rights Law ("HRL"), (N.Y.Exec.Law §§ 290-301 [McKinney's 1982 & Supp. 1989]), when the discharge is based upon a claim of excessive absenteeism. After searching the record, reviewing the evidence presented and determining that there are no genuine material issues of fact, this Court holds that under these circumstances, neither the union nor the employer violated either the agreement or applicable law.


Defendant Airborne Freight Corporation ("Airborne"), is engaged in the "air express" business, which, in essence, provides courier services to businesses throughout the country and overseas. A significant portion of Airborne's business involves the shipment or transmittal of letters or packages for "express" overnight delivery, which has become central to the conduct of American business practice in recent years.

Due to the highly competitive nature of this business, customers of Airborne, as well as of other overnight couriers, are apt to switch to a competitor, rather than tolerate frequent, or even occasional unreliability. In order to successfully meet its service commitments, Airborne maintains a large fleet of aircraft and trucks, and, concomitantly, is necessarily dependent upon employees in all phases of the process who must be consistently dependable. One such employee is the delivery truck driver.

In the New York City metropolitan area, Airborne's delivery truck drivers are required to report for their shift at 7:00 a.m. each workday. Upon the arrival of loaded aircraft at JFK International Airport in Queens, New York ("JFK"), cargo is unloaded, sorted in accordance with each truck driver's assigned delivery area, and then delivered.

Airborne is a party to several collective bargaining agreements, whereby labor unions represent various nonsupervisory employees. Its truck drivers, for example, are represented by the defendant Local Union 295, International Brotherhood of Teamsters, Chauffeurs, Warehouseman and Helpers of America ("Local 295"), as evidenced by a series of agreements entered into between Airborne and Local 295. Plaintiff, Anthony Camporeale ("Camporeale"), became employed by Airborne in early 1978 as a truck driver, and, accordingly, was represented by Local 295 to the time that his employment was terminated on May 2, 1986. The particular agreement which is the basis of this dispute covered the period September 1, 1985 through August 31, 1988 ("Agreement").

Section 21 of the Agreement, as amended, governs the grievance and arbitration procedures to be followed by Local 295 and Airborne in the event a dispute arises between them. According to the relevant provision of section 21, once a dispute or grievance arises between the "parties" (i.e., Airborne and Local 295), it "shall" be settled under the three-step process set forth in the Agreement, as follows:

  "Step 1: Between the aggrieved employee, Steward
  and Foreman of the department involved. If not
  settled within five (5) working days, then
  Step 2: Between a business representative of the
  Union or other person designated by the Union and
  the plant superintendent or other company
  designee. If not settled within five (5) working
  days, then
  Step 3: The dispute shall be submitted to a Joint
  Grievance Settlement Board (herein called the
  "Board") pursuant to the Local 295 Joint
  Settlement Board Agreement." (Agreement § 21.)

Section 21 also provides that "[n]o employee shall be involuntarily removed from the job for disciplinary reasons prior to either agreement of the parties or an arbitration ruling unless [Airborne] has cause to charge the employee with a serious offense," such as, for example, drunkenness, dishonesty, theft or unprovoked assault. In addition, Airborne "may establish such company rules as it deems necessary or desirable, provided such rules are not in conflict with [the] Agreement," and Airborne has the written approval of Local 295. (Agreement § 24.)

Throughout the early 1980's, Airborne was faced with the rising problem of excessive absenteeism, particularly among the delivery truck drivers, including Camporeale. From 1980 through 1986, Camporeale was sporadically and erratically absent from work, with a noticeably higher absentee record than many of his co-workers. His absences usually consisted of calling in sick immediately (sometimes just minutes) before the beginning of his scheduled shift, which absence would sometimes last for a few days or more. On occasion, he would even "bid" for overtime work, then call in sick.

However, Camporeale was not the only employee who had an excessive absentee record. Some of the employees with high absentee rates were, unfortunately, suffering from serious ailments which rendered them unable to work for extended periods. Others requested and sometimes received Airborne's consent for extended absences for a variety of personal reasons. Still others had an unexplained absentee record like Camporeale. Airborne's response to this type of situation usually consisted of written or oral notifications to the employee. In addition, some "Step 2" hearings were had with some of the employees, including Camporeale. Finally, due to the serious operational and customer relation problems that Airborne alleged it was experiencing from the excessive absenteeism, in January of 1985, under the direction of Gary Chardavoyne, the new Domestic Operations Manager at JFK*fn1, Airborne instituted a new "get tough" policy on absenteeism. After conferring with Airborne supervisors and Local 295 Shop Stewards, Chardavoyne issued a memorandum on February 7, 1985 to all JFK supervisors ("February 7 Memo").*fn2

Chardavoyne also instituted mandatory monthly meetings for all employees at JFK, at which the importance of the new "get tough" absenteeism policy was stressed and discussed. In July of 1985, Chardavoyne directed his managers, supervisors and shop stewards to maintain and periodically review absentee calendars for each of the employees over whom they had responsibility.

In accordance with the new policy, Mark Allen, Camporeale's immediate supervisor, brought to Chardavoyne's attention the fact that Camporeale had continued to be excessively absent in the early part of 1985. Allen issued several written and oral warnings to Camporeale regarding his absenteeism. Camporeale countered with a variety of medical reasons for his absences — ranging from "upset stomach" and "sinus condition" to "depression" — for which he generally proffered doctor's notes to Allen. By the close of 1985, Camporeale had accumulated 24 absences in that year — most of which consisted of several consecutive days at a time, which frequently immediately preceded or followed weekends.

In January of 1986, in accordance with Step 1, Allen provided Camporeale with a "final warning" that disciplinary action would be taken as a result of Camporeale's excessive absences in 1985. Thereafter, during the period from February, 1986 through April, 1986, Camporeale called in sick nine additional days, each absence beginning on a Monday, and sometimes lasting for several days. Finally, on April 30, 1986, Chardavoyne prepared a memorandum advising Camporeale that his unsatisfactory attendance record has compelled Airborne to seek disciplinary action. Chardavoyne requested Allen to deliver this memorandum to Camporeale when he reported to work at his next scheduled workday, May 1, 1986. This Allen could not do, only because Camporeale again failed to report to work as scheduled. Allen did finally deliver the memorandum to Camporeale at the start of his shift on May 2, 1986. He also advised Camporeale that a Step 2 hearing was scheduled for that afternoon.

On the afternoon of the 2nd of May, Camporeale attended his Step 2 hearing, which lasted approximately one hour, and was attended by the District Operations Manager of Airborne, the Secretary/Treasurer of Local 295, the Shop Steward for Local 295, the Shop Steward for Local Union 851*fn3, Chardavoyne and Camporeale. At the hearing, following the usual procedure, Airborne presented its side of the story, followed by Camporeale's version. Like all other employees involved in a Step 2 proceeding, Camporeale was then excused from the hearing to allow Airborne and Local 295 to deliberate. During deliberation, Camporeale's personnel file and absentee calendars for 1984, 1985 and 1986 were perused and discussed by both Airborne and Local 295. The representative for Local 295 inquired as to whether or not Airborne was firm on the dismissal of Camporeale. Since it was, Local 295 suggested that perhaps Airborne would accept Camporeale's resignation and provide him with a "suitable" reference, rather than discharge him. Airborne agreed this would satisfactorily resolve the matter, and recalled Camporeale into the hearing.

Upon being recalled into the hearing, the representative of Local 295 advised Camporeale of Airborne's decision to terminate his employment, and that, in light of his excessive absenteeism, coupled with the numerous prior oral and written warnings issued and the unsuccessful arbitration of another employee discharged for excessive absences*fn4, Local 295 could not expect to mount a successful arbitration challenge to Airborne's decision. Camporeale was offered the option to resign with a suitable reference, which he declined. Rather, he pled for reinstatement, promising to improve his acknowledged poor attendance record.

Camporeale thereafter instituted this action alleging that Local 295 breached its duty of fair representation and that Airborne's termination constituted unjust discharge, both in violation of the LMRA. In addition, Camporeale claims that both defendants engaged in retaliatory discharge in violation of the LMRDA, and discriminatory practices on the basis of disability in violation of the state HRL. Specifically, Camporeale alleged that the true reason for his discharge was either: (1) in retaliation to Camporeale's filing of two petitions with the defendants in March, 1986 and May, 1985*fn5; or, (2) because of discrimination based upon a "disability."


Camporeale's complaint initially alleged three causes of action against Airborne: (1) unjust discharge in violation of the LMRA; (2) retaliatory discharge in violation of the LMRDA; and, (3) discrimination on the basis of a disability in violation of the state HRL. It also alleged three causes of action against Local 295, namely: (1) breach of the duty of fair representation in violation of the LMRA; (2) retaliatory discharge ...

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