Another arbitration hearing was scheduled for March 28, 1991. On March 27, Farkas and Levitt met to prepare for the hearing. Sidney Fox, Levitt's partner, was designated to represent Farkas at the arbitration. They discussed the day Farkas left early (Transcript of Tape, Heylman Dec. Ex. 9, at 23-26) and reviewed a list of dates on which Coca-Cola alleged Farkas had made unauthorized stops. Farkas maintained that he had not made the stops (id. at 21) and suggested Coca-Cola had altered his trip report. (Id. at 22.) Farkas stated that he wanted to "question the validity of a trip log that the company has access to, that they can alter." (Id. at 35.) They also discussed the possibility of obtaining another adjournment to examine the information provided about the road stops. (Id. at 41-42.)
Early on the day of the hearing, Farkas and Fox met for about half an hour. They went over a CADEC printout and the notes from the previous day's meeting with Levitt. Shortly after the hearing began, Fox objected to Coca-Cola's non-compliance with the arbitrator's direction to produce documents. The arbitrator ordered Coca-Cola to produce the CADEC printout and surveillance report supporting its case and granted a recess to enable Fox and Farkas to review them. (Farkas Dep. Vol III, at 72-77; Farkas Dep. Vol. II at 203.)
Coca-Cola sought to introduce the surveillance report, and Fox objected because no witness with personal knowledge of the report was produced. The arbitrator overruled the objection. After the hearing, Fox sent the arbitrator a letter providing authority for his objection. (Letter from Sidney Fox to Arbitrator Golob dated March 30, 1991, Second Heylman Ex. 15.)
After the arbitration resumed, an employee of the surveillance company testified about the report. Mike Bonsignore testified about his comparison of the CADEC reports with the surveillance report and about his theory that Farkas tried to create overtime by stopping during his trips. (Farkas Dep. Vol. III at 111-12.)
When Farkas testified, he admitted that he had made a few stops, "i.e. to use a rest stop or to buy coffee or to check the tires." He claimed that no one had told him he had to enter such stops into the CADEC system. (Farkas Aff. P 62.)
The arbitrator made an award on July 12, 1991 in favor of Coca-Cola. (Arbitrator's Award, Second Heylman Ex. 16.) Coca-Cola discharged Farkas.
On July 26, 1991, Farkas filed an unfair labor practice charge against the union, alleging that the union violated its duty of fair representation in its handling of the termination arbitration. (Charge Against Labor Organization or its Agents, Second Heylman Ex. 17.)
Farkas also requested that the union seek to vacate the arbitration award, or allow Farkas to bring suit on behalf of the union, on the ground that the arbitrator based his award on information not presented at the arbitration. (Letter from Farkas to Rumore, Second Heylman Ex. 18.)
The union forwarded the letter to Fox, who requested that the arbitrator reopen the case and requested from Coca-Cola an agreement to extend the union's time to file a petition to vacate the award. (Letter from Fox to Golob, Second Heylman Ex. 20.) Coca-Cola opposed the Union's request to reopen. (Letter from Stanley Israel to Golob, Second Heylman Ex. 21.) Although the arbitrator noticed a hearing for December 16, 1991, Farkas and his individually retained attorney, Louie Nikolaidis, refused to attend "without clarification of the purpose" of the hearing. (Letter from Louis Nikolaidis to Fox, Second Heylman Ex. 25.)
Gerald Richman, a lawyer for the union, attended the hearing. Because Farkas was absent, the arbitrator granted an adjournment. Richman wrote to Farkas, stating that "it is clear that this firm is no longer capable of representing member Farkas." The hearing was rescheduled for January 24 to consider "whether the re-opening of the July 12, 1991 arbitration award is proper." (Letter from Fox to Nikolaidis, Second Heylman Ex. 26.)
Nikolaidis expressed reluctance to agree to represent Farkas without further clarification regarding the "parameters" of the hearing. (Letter from Nikolaidis to Fox, Second Heylman Ex. 28.) The arbitrator replied that the purpose of the hearing was "to take such evidence as Mr. Farkas or his representative wishes to submit in support of the September 20, 1991 letter application made by counsel for the Union for a reopening of the Award and the case and rehearing of the case" as well as to "take such evidence Coca Cola wishes to submit in opposition to the said application." (Letter from Golob to Fox, Israel and Nikolaidis, Second Heylman Ex. 29.) Rumore assured Farkas that the Union would pay the fee of whatever attorney Farkas retained to represent him at the January 24 hearing. (Letter from Rumore to Farkas, Second Heylman Ex. 30.) The hearing was adjourned to February 14.
The union, Coca-Cola and Farkas, represented by Nikolaidis, appeared at the February 14 hearing. Nikolaidis stated that since the earlier arbitration hearing, Farkas had filed this lawsuit in federal court. Nikolaidis then refused to proceed with the reopening hearing, stating, "There is much evidence [about reopening the award]. The question is the context of the forum in which the discussion takes place. We feel it's inappropriate to move forward here when there is an outstanding offer [of settlement] and we're awaiting the response from the employer." (Transcript of February 14 hearing, Second Heylman Ex. 31, at 20-21.) The arbitrator then closed the hearing (id. at 25) and denied the request to reopen. (Opinion, Second Heylman Ex. 32.)
Plaintiff Farkas claims the union failed to defend him adequately at the termination arbitration. Specifically, Farkas claims the union did not investigate the charges against him, attempt to secure witnesses whose testimony would bolster his, or request an adjournment to allow more time to prepare. He alleges the union breached its duty to him because he is a member of Teamsters for a Democratic Union, a dissident group within the Teamsters union to which the union leadership is hostile. Defendants contend that Farkas lied to his union counsel about whether he had stopped by the road as Coca-Cola alleged, precluding his union attorney from formulating and preparing the defense Farkas now presses, and that Farkas failed to exhaust his administrative remedies.
Defendants contend that Farkas twice had an opportunity to present his argument that drivers were not required to log short stops by the side of the road: first, when he met with union attorneys Levitt and Fox to prepare for the arbitration hearing, and again at the reopening hearing. The first time, defendants assert, Farkas lied to Levitt, relying instead on the possible alteration of the CADEC records. At the reopening hearing, Farkas refused to proceed because he thought settlement of the entire matter, including this action, was the best course.
According to defendants, Farkas' refusal to present evidence at the reopening hearing mandates dismissal of his duty of fair representation claim because the adverse outcome of the arbitration--Farkas' termination--was not due to the union's conduct, but rather to Farkas', and because Farkas failed to exhaust his contractual remedies.
A plaintiff claiming that his union breached its duty of fair representation must show: 1) that the union's conduct was "arbitrary, discriminatory or in bad faith"; and 2) that the union's conduct "seriously undermined the arbitral process." Barr v. United Parcel Service, 868 F.2d 36, 43 (2nd Cir.), cert. denied, 493 U.S. 975, 107 L. Ed. 2d 502, 110 S. Ct. 499 (1989). The plaintiff "must attempt to exhaust any exclusive grievance and arbitration procedures established by that agreement before he may maintain suit against his union or employer under section 301(a) of the Labor Management Relations Act." Clayton v. International Union, United Automobile, Aerospace and Agricultural Implement Workers, 451 U.S. 679, 681, 101 S. Ct. 2088, 2091, 68 L. Ed. 2d 538 (1981). If the plaintiff "can show that the failure to arbitrate or the unsuccessful result in that forum was due to the Union's wrongful conduct, that is, a breach of its duty to represent plaintiff fairly, then the judicial forum will still be open." Young v. United States Postal Service, 907 F.2d 305, 307 (2nd Cir. 1990).
The collective bargaining agreement between the union and Coca-Cola provides:
The Company may discharge any employee for just cause. If the Union disputes the justice of the discharge, it may refer such dispute to arbitration as provided for above. The arbitrator is empowered to sustain the discharge or to void the discharge and direct reinstatement, with or without back pay, as the merits of the case require.
(Collective Bargaining Agreement, Platt Dec. Ex. 2, Article 20.) The arbitrator's result is "final and binding upon the parties." (Id. Article 19.)
Even if the union had breached its duty of fair representation by inadequately representing Farkas at the termination arbitration, summary judgment is appropriate because Farkas failed to exhaust his contractual remedies. After the arbitrator ruled that Coca-Cola could discharge Farkas, the union filed a motion to reopen the award. The arbitrator scheduled a hearing on the motion and stated in a letter sent to Mr. Nikolaidis that the purpose of the hearing was to hear the evidence in support of and in opposition to reopening the award and rehearing the case. If Farkas had succeeded in reopening the case, he could have presented the evidence he faults the union for failing to present, and could have done so with the assistance of his own attorney. He refused to present that evidence, preferring instead to wait for the response to the offer of settlement he had made in connection with this lawsuit.
Farkas has not shown that his refusal to take part in the reopening hearing falls within one of the exceptions to the exhaustion requirement. The union did not prevent him from presenting evidence at the reopening hearing. See Young, 907 F.2d at 307 (failure to exhaust no bar to suit if plaintiff can show the failure was due to the union's misconduct). Nor did the union delay acting on Farkas' request to vacate for an unreasonable time. Contrast Williams v. Pacific Maritime Ass'n, 617 F.2d 1321, 1328-29 n.13 (9th Cir. 1980) ("The inaction of the Port Committee for almost nine months and its failure to inform appellants of the reasons for the delay make appellants' attempts to invoke the grievance mechanism sufficient to satisfy the exhaustion requirement."). Farkas has presented no evidence that exhausting his contractual remedies would have been futile. Contrast Glover v. St. Louis-San Francisco Railway Co., 393 U.S. 324, 330-31, 89 S. Ct. 548, 551-52, 21 L. Ed. 2d 519 (1969) ("The court has rejected the contention that employees alleging racial discrimination should be required to submit their controversy to 'a group which is in large part chosen by the [defendants] against whom their real complaint is made.'") Finally, Coca-Cola did not repudiate the contractual mechanism. See Vaca v. Sipes, 386 U.S. 171, 185, 87 S. Ct. 903, 914, 17 L. Ed. 2d 842 (1967) ("An obvious situation in which the employee should not be limited to the exclusive remedial procedures established by the contract occurs when the conduct of the employer amounts to a repudiation of those contractual procedures."). Accordingly, summary judgment dismissing count five of the Amended Complaint is granted.
Count six of plaintiffs' Amended Complaint alleges that Coca-Cola violated the collective bargaining agreement by discharging Farkas without "just cause." Because Farkas' claim "is based upon breach of the collective bargaining agreement, he is bound by the terms of that agreement which govern the manner in which contractual rights may be enforced." Id., 386 U.S. at 184, 87 S. Ct. at 914. Thus, Farkas' failure to exhaust the contractual mechanism provided in the collective bargaining agreement which governed his employment also requires dismissal of count six.
Defendants' motion for summary judgment dismissing count one is denied, except for the LMRDA claim against Anthony Rumore, which is dismissed. Their motion for summary judgment dismissing counts two, five and six is granted.
Dated: New York, New York
March 9, 1995
LOUIS L. STANTON
U. S. D. J.