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SMITH v. ITT STD.

July 21, 1993

PAUL SMITH, JR., Plaintiff,
v.
ITT STANDARD and UNITED STEEL WORKERS OF AMERICA, Defendants.



The opinion of the court was delivered by: LESLIE G. FOSCHIO

 JURISDICTION

 The parties executed a consent to proceed before the undersigned on October 22, 1992. The matter is presently before the court pursuant to Defendants' motion for summary judgment under Fed.R.Civ.P 56(b).

 BACKGROUND

 Plaintiff, Paul Smith, Jr., a fourteen-year employee of Defendant ITT Standard ("ITT") and a member of United Steel Workers of America Local No. 897, AFL-CIO ("the Union"), until his termination in 1991, filed a complaint on April 3, 1992, alleging wrongful discharge under the terms of the collective bargaining agreement against ITT, and a violation of Section 301 of the National Labor Relations Act (29 U.S.C. § 185(a)) against the Union for violation of its duty of fair representation. ITT and the Union answered on April 29, 1992 and April 27, 1992, respectively, asserting that the complaint failed to state a claim as to either defendant, and requesting dismissal, costs and attorneys fees.

 Following discovery, the Union filed a summary judgment motion on December 30, 1992. ITT filed a summary judgment motion on January 4, 1993. Smith's Affidavit in Opposition was filed February 12, 1993, and oral argument was held March 4, 1993 with decision reserved.

 For the reasons which follow, ITT's motion is DENIED, and the Union's Motion is GRANTED, in part and DENIED, in part.

 FACTS

 ITT, a designer and manufacturer of shell and tube' heat exchangers, employs approximately 350 employees. See, ITT Statement of Undisputed Facts, filed January 4, 1993, at p. 2. Smith was first hired by ITT in 1977 as a grinder to work on heat exchangers. At the time of his discharge on October 11, 1991, he was an assembler earning $ 12.14 an hour. See, Complaint, filed April 3, 1992, at PP 8 and 9. During the period of his employment with ITT, Smith had been less than a model employee, accumulating numerous disciplinary warnings and suspensions. See, Exhibit 4 to Affidavit of Will Shine in Support of ITT's Motion for Summary Judgment, filed January 14, 1993. The Union, of which Smith was a member from his initial employment until his discharge, is the exclusive bargaining agent for ITT production and maintenance workers. See, ITT Fact Statement at PP 2 and 3.

 The Union and ITT are parties to a collective bargaining agreement which provides for, among other things, discharge of an employee "for proper cause" (§ 5.01), and the application and observance of shop rules, existing and as modified, to all employees, subject to the grievance and arbitration procedure established under Article XXIV and XXV, respectively (§ 12.01). Article XXIV provides for a three step grievance procedure following which any grievance may be taken by a party to arbitration under Article XXV. See, Shine Affidavit in Support at PP 4, 5 and 7.) ITT's shop rules are issued to each employee and are posted. See, Shine Affidavit in Support at P 6. The shop rules specifically provide that they will be enforced "to maintain good working conditions and conduct on Company premises," and that a violation of that rule, Rule 1(a)-(1), will result in suspension or other disciplinary action, including discharge. See, Exhibit 2 to Shine Affidavit in Support. Smith was found to have violated Rule 1(j), Insubordination, which the rule does not specifically define.

 On April 24, 1991, ITT discharged Smith for violating shop rules 1(h) (indecent and immoral conduct) and 3(h) (giving false information on time cards). ITT Statement of Facts at P 9. This action was based on an accusation by Smith's supervisor, Mr. Ted Krempa, that on April 13, 1991, Smith had left the plant an hour earlier than the time he indicated on his time card. (Shine Affidavit in Support at PP 12 and 13). This action followed warnings given to Smith concerning two similar incidents in March, 1991 and September, 1990. Shine Affidavit in Support at P 13. Following this discharge decision, the Union filed a grievance on behalf of Smith, which was processed at all three steps required by the collective bargaining agreement. ITT Statement of Fact at P 10. Upon ITT's refusal to change Smith's discharge decision, The Union requested arbitration. Shine Affidavit in Support at P 16. Prior to arbitration, ITT, Smith and the Union entered into a "settlement agreement" which permitted Smith to be reinstated on a "last chance" basis. Shine Affidavit in Support at P 16. Specifically, the agreement, dated and effective September 11, 1991, provided that, in view of his poor employment record, Smith would be reinstated on a "last chance basis," however, any Shop Rule violation by Smith during the one year probationary period, would subject him to immediate discharge. Shine Affidavit in Support at P 16. Upon signing the agreement, Smith returned to work.

 Like many other businesses in this area, ITT participates in the annual United Way solicitation of its employees. Shine Affidavit in Support at P 17. At ITT, this support of the United Way community charitable giving program is accomplished by employee attendance, on company time, at a meeting of groups of company employees at which United Way representatives make a brief presentation, and solicit the employees to make individual voluntary contributions. Shine Affidavit in Support at P 17; Affidavit of Donald Rusert in Opposition, dated February 9, 1993 at P 4. Smith's department was scheduled for its United Way meeting that year in the cafeteria room on October 9, 1991 at 10:30 a.m. Although ITT's Human Resources manager, Will Shine, claimed that attendance at such meetings are mandatory (see Shine Affidavit in Support at P 17), it is also a fact that foremen in other departments of ITT do not require their employees to attend United Way meetings and employees not attending are not paged with a direction to do so. Affidavit of Roe Harrison in Support dated December 30, 1992 at P 16 (Harrison Affidavit in Support); Affidavit of Guy Masocco in Support dated December 30, 1992 at P 25 (Masocco Affidavit in Support); Affidavit of James Diabo in Support at P 8c.

 On October 8, 1991, Smith's foreman, Ted Krempa, informed each of his respective employees, including Smith and a co-worker, Don Rusert, that they were to attend the department's United Way meeting at 10:30 a.m. the next day. Krempa arrived for the meeting with other department employees at 10:20 a.m. Krempa Affidavit in Support dated December 30, 1992 at P 5. Shortly after the meeting began he noticed that Smith, Rusert, and Guy Masocco, president of the Union local, were absent. Krempa Affidavit in Support at P 5. Krempa then left the cafeteria and paged the three employees to report to the cafeteria on a plant-wide paging system. Krempa Affidavit in Support at P 6. Masocco arrived at the cafeteria at the same time as Krempa and explained that he had been on the telephone conducting Union business. Krempa Affidavit in Support at P 6. Krempa, after waiting approximately twenty minutes, left the cafeteria to locate Smith and Rusert. Krempa Affidavit in Support at P 5. He found Rusert at his work station; Smith was observed walking back to the work area from the men's room. Krempa Affidavit in Support at P 7. According to Krempa, when asked why he failed to attend the United Way meeting, Smith replied, using a common profanity, that as the collective bargaining agreement did not specifically require his attendance, he was not obliged to attend. Krempa Affidavit in Support at P 8. Smith and Rusert deny that Smith used such profanity in responding to Krempa asserting, rather, that it was Krempa who used the profanity, which is denied by Krempa. Smith Affidavit in Opposition at P 10; Rusert Affidavit in Opposition at P 6; Krempa Reply Affidavit dated February 26, 1993 at P 4. Krempa became Smith's foreman in 1990 and so could not say whether Smith had attended United Way meetings in the past. According to attendance records, Smith was absent from work on the day of the 1990 meeting. Krempa Reply Affidavit at P 6.

 Mitchell Pacer, ITT's production manager, assisted Krempa in searching for Smith and Rusert, and quickly located Rusert who was then at his work station rolling a unit. Pacer Affidavit in Support dated February 26, 1993 at P 3 (Pacer Affidavit in Support). Pacer was told by Rusert, in response to his question as to why Rusert was not at the United Way meeting, that he did not have to go and that he would not attend. Pacer Affidavit in Support at P 3. In searching for Smith, Pacer entered the men's room, observed that one of the stalls was occupied, and concluded the person inside was Smith. Pacer Affidavit in Support at P 4. When asked as to his whereabouts during the meeting, Smith initially stated he was "on my job," (Pacer Affidavit in Support at P 6) but later admitted that he was not at his work station during the meeting. (Masocco Affidavit in Support at P 23). Both Rusert and Smith were ...


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