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SMITH v. DRUG

August 19, 1996

ELLA SMITH, Plaintiff, against DRUG, CHEMICAL, COSMETIC, PLASTICS and AFFILIATED INDUSTRIES WAREHOUSE EMPLOYEES LOCAL 815, affiliated with the INTERNATIONAL BROTHERHOOD OF TEAMSTERS, and DEL LABORATORIES, INC., Defendants.


The opinion of the court was delivered by: ORENSTEIN

 ORENSTEIN, United States Magistrate Judge:

 Plaintiff commenced this hybrid action pursuant to Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, alleging that (1) her employer, Del Laboratories ("Del"), discharged her in violation of an existing collective bargaining agreement, and (2) Drug, Chemical, Cosmetic, Plastics and Affiliated Industries Warehouse Employees Local 815 (the "Union"), her collective bargaining representative, breached its duty of fair representation in connection with the termination. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331. Venue for this action lies within the Eastern District of New York pursuant to 28 U.S.C. § 1391(b) and (c), as the alleged events in question transpired principally at Del Laboratories, Inc., located in Suffolk County, New York.

 Having considered the evidence presented by the parties at trial, the Court makes the following Findings of Fact and Conclusions of Law, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure:

 FINDINGS OF FACT *fn1"

 1. Del is an employer within the meaning of Section 2(2) of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 52(2), and is engaged in an industry which affects commerce within the meaning of Section 2(6) and (7) of the LMRA, 29 U.S.C. § 152(6) and (7). Del is a corporation with its principal place of business in New York State. (Compl. P 4.)

 2. The Union is a labor organization within the meaning of § 2 of the National Labor Relations Act, 29 U.S.C. § 152, and Section 301(b) of the LMRA, 29 U.S.C. § 185(b).

 3. Plaintiff Ella Smith began employment with Del in 1984 as an assembler at Del's plant located in Farmingdale, New York. Tr. 12 (1/10/96)(testimony of Ella Smith). *fn2" Among her duties at Del were boxing certain products, capping bottles, and other various tasks associated with work on an assembly line. Id. Plaintiff also frequently served as a line leader. Id. 14; Pl.'s Dep. at 5. Line leaders are responsible for, inter alia, positioning the workers on the line, instructing them as to the tasks they will be performing on a given shift, and monitoring the overall progress of the line. Tr. 84 (1/24/96) (testimony of Anne White).

 4. During Plaintiff's tenure at Del, the Union served as her exclusive collective bargaining representative. Tr. 239 (1/25/96)(testimony of Larry Plotnick). The parties stipulated that Plaintiff was a member in good standing of the Union at the time of her termination. Tr. 39 (1/10/96). The Union's duties included, inter alia, negotiating contracts with Del management on behalf of the employees and "handling" any grievances that might arise between an employee and the company. Id. Larry Plotnick, the Union's President for the past twenty-three to twenty-five years, performed the foregoing duties on behalf of the Union during Plaintiff's employment. Id. On April 14, 1992, the Union and Del executed a collective bargaining agreement (the "CBA"), effective January 1, 1992, which remained in effect until December 31, 1994. See Pl.'s Ex.1.

 5. Plaintiff was subjected to numerous disciplinary actions during her tenure at Del. On August 1, 1985, Plaintiff received her first warning notice for returning to her work station late on two separate occasions. Del's Ex. 4. The notice commented that Plaintiff "was spoken to several times in the past about her tardiness." Id. On February 19, 1988, Plaintiff received a two-and one-half day suspension for "insubordination"; specifically, Plaintiff left her production line for approximately seventeen minutes. When questioned about her absence upon her return to the line, Plaintiff yelled at the production manager, "causing a major interuption [sic] to the [three] lines running in the area." Id. On October 21, 1988, Del issued Plaintiff a warning for taking excessive breaks from her line. When questioned by her line leader, Plaintiff threatened "to throw a bottle of nail polish at her." Id. A subsequent warning notice on November 1, 1988, whereby the line leader was forced to page Plaintiff to return to her line after a twenty-five minute absence, resulted in a one-day suspension, in addition to the comment that "[Plaintiff] comes [and] goes as she pleases." Id.

 Del served Plaintiff with a warning notice on February 26, 1990, for taking an excessive amount of time to use the restroom, causing her line to be delayed for fifteen minutes. On June 14, 1990, Plaintiff received a warning notice for leaving her assigned line without authorization and "disturbing girls" on another line that was operating simultaneously. Id. Del issued Plaintiff yet another warning for essentially the same infraction on August 2, 1990. Id.

 On October 7, 1991, Del suspended Plaintiff pending a meeting scheduled for October 15, 1991, for, among other things, insubordination and poor job performance. The October 15, 1991, meeting was attended by Plaintiff; Angela Hubbard, one of the shop stewards; Richard Smith, Del's production manager; Larry Plotnick; and Charles Schneck, Del's director of human resources. Id. The disposition of the disciplinary meeting, memorialized in a writing that was signed by Plaintiff, concluded that "[Plaintiff] willfully disobeyed company practices and caused a quality problem which resulted in the rework of 4500 pieces." Id. While Del's "initial view was for termination," the company agreed, at the behest of Hubbard, to suspend Plaintiff for one week without pay and place her on probation for six months. Id.

 Approximately four-and one-half months prior to her termination, Plaintiff received what was to be her final warning notice. Del's Ex. 3. In the notice, dated December 30, 1992, plant manager Richard Smith recommended that, in light of her past violations, Plaintiff be terminated for insubordination and for abandoning the assembly line at which she was scheduled to work. On January 23, 1993, Charles Schneck met with Larry Plotnick to discuss the notice. Tr. 191 (1/24/96)(testimony of Charles Schneck); Tr. 65 (1/10/96)(testimony of Ella Smith). Schneck testified that Plaintiff should have been terminated as a result of this latest incident, but that Plotnick had convinced him to grant Plaintiff a reprieve due to Del's delay in processing the disciplinary form. Tr. 191 (1/24/96)(testimony of Charles Schneck). *fn3" Pursuant to his meeting with Plotnick, Schneck sent a memorandum to Plaintiff which stated in pertinent part as follows:

 
Should you at any time in the future display insubordination or walk off the line without permission or create any other serious disturbance on the work floor, you will be terminated on the spot because of your previous work history.

 Del's Ex. 3. Plaintiff testified that, subsequent to the incident, Plotnick advised her that she would not be terminated for "trivial" things, such as "going to the bathroom or coming back to the line late." Tr. 65 (1/10/96)(testimony of Ella Smith). The Court finds, however, that, taking Plaintiff's testimony in this regard to be true, Plotnick's oral statement to her is not inconsistent necessarily with the January 25, 1993, warning memorandum.

 THE EVENTS OF JUNE 3, 1993

 6. On June 3, 1993, Plaintiff worked as a line leader on the regular shift at Del, which ran from 7:30 a.m. to 4:30 p.m. During this shift, she was also in charge of running the labeling machine on the line. Tr. 13-14 (1/10/96)(testimony of Ella Smith). Plaintiff was scheduled to work as a regular assembler on the overtime shift that night on a different assembly line, to wit: line 10. Id. 14.

 7. While the overtime shift ran until 9:00 p.m., there was no fixed time that the line would in fact commence. Two warning bells were sounded at 4:23 p.m. and 4:25 p.m. to give the assembly workers notice that the regular shift was about to end, and to provide them with an opportunity to clean up themselves and their work areas. Id. 15. The overtime shift, though scheduled to start promptly at 4:30 p.m., would sometimes be delayed anywhere from five to fifteen minutes while workers arrived from different departments to which they had been assigned on the regular shift. Id. 14-15; Tr. 103 (1/24/96)(testimony of Anne White).

 8. Particular spots on the assembly line are often filled on a first-come basis. Nevertheless, Plaintiff conceded that the line leader retains ultimate authority to move an assembler to any position the leader deems appropriate or necessary. In short, an assembler has no entitlement to any particular position on any particular line. Id. 82. Moreover, no evidence was presented at trial suggesting that an assembly worker could situate herself wherever she pleased or perform whatever work she pleased prior to the formal commencement of the line.

 9. Plaintiff testified that when the 4:23 p.m. warning bell rang on June 3, 1993, she immediately left her line and went to line 10, arriving there by 4:24 p.m. Tr. 15 (1/10/96)(testimony of Ella Smith). According to Plaintiff, four assemblers were already seated at various spots on the line when she arrived: Jay Shaw, Veronica Angus, Lorine Conley, and Carmen Leon; Anne White, a Union member who was to serve as line leader that night, had not yet arrived. Id. 16, 77. Plaintiff, who desired to perform the same work she had the night before, i.e., hooking products on the clip strip, *fn4" noticed that Carmen Leon had occupied the spot. Id. 81, 85. Plaintiff proceeded to place a chair "at the next available spot where the hooks were." Id. 17.

 According to Plaintiff, White came over to her and advised her that the spot she was in already was taken. Plaintiff responded that she "wanted to do my same job like everybody else is doing," which clearly was a reference to the work she had performed the previous night. Id. 17; Tr. 13 (1/24/96)(testimony of Ella Smith). Plaintiff testified that while she audibly repeated words to this effect "more than once or twice," she was not talking to anyone in particular, did not "truly want[] her [previous night's] job back," and "was just saying this just to be saying something" to amuse herself. Tr. 79-80, 83 (1/10/96)(testimony of Ella Smith). The Court does not credit Plaintiff's testimony in this regard, finding her explanation to be nonsensical, and finds that Plaintiff was directing her comments toward Anne White, Carmen Leon and/or Lorine Conley.

 10. Plaintiff testified that Anne White never directed her to move to another position on the line. Id. 90. Instead, Plaintiff testified, White simply paged Richard Smith, the production manager at Del. Id. 84. Plaintiff's trial testimony, however, is contradicted by her deposition testimony, in which she specifically recalled White telling her that she "had to take another position." See Del Ex. 5 at 16. Moreover, Plaintiff conceded on cross-examination that White "might have said you have to take a different or another position." Tr. 92 (1/10/96)(testimony of Ella Smith).

 11. Sometime later, "Linda," a supervisor at Del, appeared at the line and spoke to White. Id. 20. After witnessing Veronica Angus, Lorine Conley, and White leave and return to the line, Plaintiff became concerned that "they were going to the office about her." She then went to the office of Charles Schneck, director of human resources at Del, and asked to speak with him "about what [had] just happened." Id. 21-22. Schneck advised Plaintiff that he would call for her later, and Plaintiff returned to the line. Two or three minutes later, White told Plaintiff that Schneck was ready to see her. When Plaintiff arrived at Schneck's office, Schneck told her that she was insubordinate, and that "this [was] [her] last day working there." Schneck then directed Richard Smith, who also was present, to make sure Plaintiff cleaned out her locker. Id. 23, 89. Plaintiff punched out her time card, cleaned out her locker, and left the premises. Id. 23.

 12. Anne White served as line leader on line 10 during the overtime shift on June 3, 1993. White testified that when she arrived at the line, Veronica Angus, Lorine Conley, and Carmen Leon were already present, but that Plaintiff had not yet arrived. Tr. 90 (1/24/96)(testimony of Anne White). Conley and Leon were seated on the line hooking products on the clip strip. White testified that when Plaintiff arrived at the line, she "wanted to do the job that she did the night before," id. 91, which comports substantially with Plaintiff's testimony in this regard. See Findings of Fact P 8. White replied that the position already was filled, and repeatedly directed Plaintiff to go to the end of the line. Id. 91-93. According to White, Plaintiff refused to move, and started "carrying on" and being "nasty." Id. 92. She called Conley "rubber lips" and "bitch," id., and proceeded to squeeze herself in between Conley and Leon. White then paged Richard Smith to the line. Id. 93. When Richard Smith arrived at the line, White advised him that Plaintiff had refused to take a position at the end of the line, and was shoving herself between Leon and Conley in her quest to clip products on the strip. Id. 94.

 White's testimony was corroborated largely by Conley, Leon, and Angus, all of whom were (and remain) members of the Union. Conley, an eighteen-year employee at Del, testified that she and Angus were the first two people to arrive at line 10 on June 3, 1993; Leon and White arrived soon thereafter. Tr. 120 (1/24/96)(testimony of Lorine Conley). When Plaintiff arrived, Conley and Leon were seated next to one another, in accordance with White's instructions. Id. 120-21. Plaintiff proceeded to sit next to Conley, *fn5" insisting that she wanted the job she had performed the previous night. According to Conley, Plaintiff refused to move despite being directed to do so by White at least three or four times. Id. 121-23. During the incident, Conley testified, Plaintiff told Conley to "kiss my ass" and called her a "big rubber lip white people ass kisser" and a "son of a bitch." Id. 123.

 Leon, a twelve-year employee at Del, testified that when she arrived at line 10 on June 3, 1993, White directed her to sit next to Conley. When Plaintiff arrived at the line, she insisted on taking Conley's position, and then "sat down in [Conley's] lap." Tr. 143-44 (1/24/96)(testimony of Carmen Leon). An argument ensued, with Plaintiff calling Conley "bitch" and "rubber lips." Id. 145. At that point, Leon testified, White interceded and told Plaintiff to move to another position "three or four times." Plaintiff did not move. Id. 146.

 Angus, a twenty-two year employee at Del, testified that prior to Plaintiff's arrival at line 10 on the June 3, 1993, overtime shift, Conley and Leon, at White's direction, were hooking products on the clip strip. Tr. 162-63 (1/24/96)(testimony of Veronica Angus). According to Angus, Plaintiff initially told Leon that "she had to get out of [her] spot because [she] worked there the night before, and that was [her] spot." Id. 163-64. When Leon informed Plaintiff that White had directed her to sit there, Plaintiff proceeded to sit on Conley's lap. White subsequently told Plaintiff to move to the end of the line three or four times, to no avail. Id. 164.

 Plaintiff presented Wilhemina Rogers, a twenty-three year employee at Del, to testify on her behalf concerning the events that transpired on June 3, 1993. Rogers testified that she worked the overtime shift on line 10 on June 3, 1993. Tr. 59-60 (1/24/96)(testimony of Wilhemina Rogers). When Plaintiff arrived at the line, Carmen Leon was in the position that Plaintiff had occupied on the line the previous night. Id. 60. According to Rogers, Plaintiff told White "twice or three times" that she "wanted [her] old job back just like everybody else has their old job back." Id. 69. Rogers's testimony differs from that of Conley, Leon, and Angus, however, in that she claimed that Plaintiff neither engaged in any "discussions" with Angus or Conley, nor ever refused to take a position on the line. Id. 65. The Court gives little weight to Rogers's testimony, primarily because her presence at line 10 on the night of June 3, 1993, was not corroborated by anyone, including Plaintiff, or evidenced by any type of log or other documentation. See Tr. 27 (1/10/96)(testimony of Ella Smith)("And so they said who was working that night? And when I named the four ladies that were working, you know, on the line that night, but I said none of them would speak in [sic] my behalf. And I had named Carmen Leon and Jay Shaw and Lorine Conley and Veronica Angus."); Tr. 102 (1/24/96)(testimony of Anne White); Tr. 126 (1/24/96)(testimony of Lorine Conley); Tr. 148 (1/24/96)(testimony of Carmen Leon); Tr. 169 (1/24/96)(testimony of Veronica Angus); Tr. 287-88 (1/25/96)(testimony of Richard Smith).

 13. Based on the testimony presented by both sides, the Court finds that when Plaintiff arrived at line 10 for the overtime shift on June 3, 1993, Carmen Leon and Lorine Conley were sitting at the line prepared to hook products on the clip strip. Plaintiff proceeded to squeeze herself between Leon and Conley in an effort to perform the same work, which she had performed the prior night during the overtime shift; during the incident, Plaintiff called Conley "bitch" and "rubber lips." The Court further finds that, despite Anne White's repeated directions to move to another position, Plaintiff refused to move, stating at least twice that she "wanted her old job back," or words to that effect.

 14. Richard Smith, the production manager at Del on June 3, 1993, testified that when he arrived at line 10 in response to Anne White's page, White advised him that she was "having difficulty" getting Ella to assume a position on the line. Tr. 289 (1/25/96)(testimony of Richard Smith). When Richard Smith arrived at line 10, the line had not yet formally commenced. Id. 298. According to Smith, when he approached Plaintiff, who at that time was standing between Conley and Leon, who were both seated, id. 296, he asked Plaintiff what the problem was. Plaintiff responded that she felt she was entitled to the same position she had the previous night. *fn6" Id. 289. After advising Plaintiff that the position already was filled by Conley and Leon, Plaintiff again claimed a right to the position. Id. Smith then asked Plaintiff whether she was refusing a position on the line, at which time Plaintiff proceeded to move toward the end of the line. Id. 289, 299. Smith left the line just as Plaintiff started to move. Id. 290. Therefore, Smith claims he never saw Plaintiff actually assume a position at the end of the line or commence work on the line. Id. 290, 300.

 On cross examination, Smith conceded that as he left the line, he intended to terminate Plaintiff as a result of the incident. Id. 302. Smith went directly to the office of Charles Schneck, Del's director of human resources, and recommended that Del terminate Plaintiff. Tr. 182 (1/24/96)(testimony of Charles Schneck). After discussing the matter, Smith and Schneck decided to suspend Plaintiff pending a grievance meeting with the Union. Id. 183. Plaintiff was then summoned to Schneck's office. *fn7"

 15. Smith, Schneck, and Ulysses "Cuba" Sanchez, one of the Union's shop stewards, were present in Schneck's office when Plaintiff arrived. Tr. 87 (1/10/96)(testimony of Ella Smith). At the meeting, Schneck advised Plaintiff that she was guilty of insubordination for refusing to follow directions. Id. 88; Tr. 183-84 (1/24/96)(testimony of Charles Schneck). Smith and Schneck testified that Schneck suspended Plaintiff pending a hearing that would be held at a later date. Tr. 306 (1/25/96)(testimony of Richard Smith); Tr. 184 (1/24/96)(testimony of Charles Schneck). According to Schneck, Del's "normal procedure in [sic] a serious offense is to suspend pending termination." Tr. 184 (1/24/96)(testimony of Charles Schneck).

 The testimony of Smith and Schneck, however, is inconsistent with the notice filled out by Richard Smith on June 4, 1993, but dated June 3, 1993. The notice contains the following language:

 
DISPOSITION: Termination--See Last Warning and Corresponding Memo *fn8"

 Del Ex. 3. The notice was executed by Richard Smith and Schneck on June 4, 1993, and by Phil Rosenzweig, Del's vice president of manufacturing, shortly thereafter, but in any event prior to June 9, 1993. According to Smith, the disposition was the "recommended" course of action; Schneck testified that, although he agreed to suspend Plaintiff pending termination, he nevertheless read and signed the notice as it appears. Tr. 303-04 (1/25/96)(testimony of Richard Smith); Tr. 206-07 (1/24/96)(testimony of Charles Schneck). The Court does not credit Smith or Schneck's testimony on this point, and expressly finds that Del terminated Plaintiff on June 3, 1993. Neither Smith nor Schneck proffered any reason as to why the notice did not state "suspended pending termination hearing," or words to that effect. Moreover, past notices issued to Plaintiff were unambiguous; when a disposition was not deemed final, it was stated clearly. See Del Ex. 4 (Warning Notice, dated October 21, 1988)("I strongly recommend so [sic] type of disciplinary action against this employee.")(emphasis added); (Warning Notice, dated October 7, 1991)("Suspension pending meeting on Tues. 10/15/91 . . ."); Del Ex. 3 (Warning Notice, dated December 30, 1992)("It is ...


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