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December 21, 1996


The opinion of the court was delivered by: MCAVOY

 Plaintiff brought this hybrid Section 301/duty of fair representation action pursuant to the Labor Management Relations Act, 29 U.S.C ┬ž 185. The case arises out of plaintiff's dismissal by his employer in April of 1995. Defendants now move, pursuant to Fed.R.Civ.P. 56, for summary judgment dismissing the Complaint.

 A. Facts: *fn1"

 Defendant Finch, Pruyn and Company, Inc. (the "Company"), located in Glens Falls, New York, manufactures fine paper products. Plaintiff Jonathan Hague was first employed by the Company in June of 1974; he was later discharged in 1977. (Affidavit of Michael K. Strich ("Strich Aff."), P 3). Plaintiff was thereafter re-hired on a temporary basis in November of 1981 and once again discharged in January of 1982. (Id.). In March of 1982, plaintiff was re-hired on a temporary basis and became a full-time employee one month later. (Id.). Plaintiff remained employed with the Company, principally as a laborer in the Buildings and Grounds Department, until his discharge on April 17, 1995. (Id.).

 Defendants United Paperworkers International Union ("UPIU") and Hudson River Local No. 18 ("Local 18") (collectively, the "unions") are labor organizations engaged in representing employees of the Company. (UPIU 7.1(f) Statement, PP 2-3). From approximately 1980 through April of 1995, plaintiff was a member in good standing of both Local 18 and the UPIU. (Id. P 5;).

 From the period June 16, 1991 to June 15, 1996, the Company, UPIU and Local 18 were parties to a collective bargaining agreement ("CBA") which governed the terms and conditions of employment of members of the bargaining unit represented by the UPIU and Local 18. (Id. P 6; see Compl., Ex. A). Articles 9 and 10 of the CBA establish procedures for processing and adjusting grievances. (Compl., Ex. A). Specifically, the CBA provides a four-step procedure for the processing of grievances. (Id.).

 Defendants allege (and plaintiff does not dispute) that on December 30, 1992, plaintiff was accused of insubordination and use of profane language in a disrespectful manner toward Company supervisors. (UPIU Rule 7.1(f) Statement, P 8; Affidavit of Steven Scarselletta ("Scarselletta Aff."), P 3). Thereafter, on January 6, 1993, plaintiff, Company Personnel Director Michael Strich ("Strich"), and Local 18 President Steven G. Scarselletta ("Scarselletta"), signed a "Memorandum of Agreement" ("Last Chance Agreement," or "LCA"), which stated, in pertinent part, that

the Employee and the Union agrees [sic] that any further occurrences of this nature will result in disciplinary action up to and including discharge. This action will be at the Company's discretion and the Employee and Union waive any and all claims that should arise as a result of the Company's action.

 (Compl., Ex. D). In addition, the LCA contained the understanding that plaintiff would be suspended through January 12, 1993.

 Plaintiff contends that following his suspension on April 4, 1995, both the UPIU and Local 18 failed to object, file a written grievance, or request a third step hearing *fn3" as required by the CBA. (Pl. Aff., P 4). According to plaintiff, it was not until May 4, 1995, that he was successful in convincing Local 18 to file a grievance on his behalf. Plaintiff alleges that despite the eventual filing of the grievance, he was nonetheless never afforded a third step hearing. (Pl. Aff., P 6).

 Defendants' version of these events is different. They allege that Local 18 performed an investigation at plaintiff's request, although they do not specify the date on which the investigation began. (See Grinnell Aff., P 4). Furthermore, defendants contend that a third step meeting was in fact held on May 8, 1996, attended by plaintiff, Grinnell, Plant Manager Raymond Barrows ("Barrows"), Assistant Superintendent James Summers ("Summers"), Christopher Carota, Superintendent Tim Carota and Strich. (Strich Aff. P 12; Grinnell Aff. P 7). Defendants allege that at the conclusion of this meeting, it was the Company's position that plaintiff's actions on April 4, 1995, violated the LCA and were cause for his discharge. (Id.). Plaintiff contends that these assertions are untrue; however, he does not seem to deny that this meeting in fact occurred, since he later asserts that "it is undisputed that the "Step 3" hearing to which Mr. Strich and Mr. Grinnell refer occurred well over a month after the date on which I was suspended..." (Pl. Aff., P 6). Thus, plaintiff seems only to take issue with defendants' characterization of the meeting as a third step hearing.

 The Company submitted its written answer to plaintiff's grievance on May 10, 1995. (Strich Aff. P 13 and Ex. F; Grinnell Aff., P 8; Pl. Aff., P 8). Following receipt of the answer, the Executive Board of Local 18 voted to submit plaintiff's grievance for arbitration. *fn4" (Grinnell Aff., P 9). In June of 1995, Local 18 retained Attorney Bruce C. Bramley for the arbitration. (Grinnell Aff., P 9; Pl. Aff., P 8).

 The arbitration hearing was held August 25, 1995, before Arbitrator Sumner Shapiro ("Shapiro"). During that hearing, Bramley did not in fact challenge the validity of the LCA, and none of the union officials who expressed doubts as to its validity to plaintiff were called as witnesses. (Pl. Aff., P 13). Nor was the alleged violation of plaintiff's rights under article 9 the CBA challenged, as plaintiff alleges he was promised. (Pl. Aff. P 14).

 Defendants allege that the decision not to challenge the validity of the LCA during the hearing was a tactical determination. (Grinnell Aff., P 12). Bramley himself asserts that it was his opinion that doing so would not be helpful, and that plaintiff agreed to this decision, both at the August 15 meeting, and in a telephone conversation between Bramley and plaintiff on August 18. (Bramley Aff., PP 6, 10). Bramley suggested that such an argument would be better made in a post-hearing brief to the arbitrator. (Id.). Such a brief was in fact submitted. (Id. P 12 and Ex. A). Bramley also denies that he ever promised plaintiff that he would subpoena documents for the purpose of challenging the LCA. (Id. P 9).

 The arbitration hearing was held on August 25, 1995. The substance of that proceeding is documented in the Opinion and Award of Arbitrator Sumner Shapiro, dated September 15, 1995, attached to plaintiff's affidavit as Exhibit 4. Shapiro found, in sum, that (1) the LCA was valid; (2) the LCA did not foreclose plaintiff from invoking the arbitration process; (3) the Company did not violate the CBA when it discharged plaintiff pursuant to the LCA. (See Pl. Aff, Ex. 4). Local 18 did not seek to vacate the award, contending that Bramley concluded that there were no grounds to do so. (Grinnell Aff., P 16).

 Sometime after the arbitrator's decision was rendered, plaintiff contacted Bramley. Plaintiff asked Bramley whether the decision could be appealed; according to plaintiff, Bramley responded that an appeal based upon the validity of the LCA or the alleged violation of plaintiff's rights under the CBA would require him to take a position adverse to that of his client, Local 18. (Pl. Aff., P 27). Bramley contends that he simply told plaintiff an appeal would be up to his client, Local 18. (Bramley Aff., P 15). Bramley additionally alleges that ...

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