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February 14, 1997

DARREN MORRIS, Plaintiff, against LOCAL 819, International Brotherhood of Teamsters, and COLUM FLAHERTY, Trustee of Local 819, International Brotherhood of Teamsters, Defendants.

The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 The pro se plaintiff, Darren Morris, (the "plaintiff" or "Morris"), initially brought this action against the defendants, Local 819, International Brotherhood of Teamsters, ("Local 819" or "Union"), and Colum Flaherty, International Trustee and Administrator of Affairs of the Local, ("Flaherty") or (collectively the "defendants"), on October 7, 1994 in the Small Claims Court of the Civil Court of the City of New York. According to the defendants, Morris' Small Claims Court complaint alleged "non-representation" by Local 819 and Flaherty, in matters concerning his employment by Island Associated Coop, Inc. ("Island" or "Employer") and sought a refund of his dues paid to Local 819. The defendants assert that because Morris' Small Claims Court complaint appeared to allege that Local 819 and Flaherty had breached the duty of fair representation owed to the plaintiff pursuant to Section 301 of the Labor-Management Relation Act of 1947 ("LMRA"), 29 U.S.C. § 185, the defendants removed the plaintiff's action to federal court pursuant to 28 U.S.C. § 1441. Now, Local 819 moves for an order granting summary judgment pursuant to Fed.R.Civ.P. 56 as to all claims against it and Flaherty moves to dismiss all claims against him under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which the Court can grant relief.


 On January 7, 1994, the plaintiff was injured in an automobile accident on his way to work. According to the defendants, Morris was unable to return to work due to his injuries. On or about May 23, 1994, the plaintiff contacted Island about returning to work, but was informed that it had hired a replacement and that his position was no longer available.

 The defendants contend that Morris contacted Local 819 about filing a grievance over Island's refusal to reinstate him. On May 31, 1994, in an effort to assist Morris, Arthur Snow, the then-Business Agent for Local 819, wrote a letter to Island demanding that it reinstate the plaintiff at his previous salary. Following further discussions, Island agreed to reinstate the plaintiff as a warehouseman, not as a driver as he was previously employed. Despite the fact that under the Collective Bargaining Agreement, warehousemen are paid a lower hourly wage than drivers, Island agreed to pay the plaintiff the same rate that he had been receiving as a truck driver. The plaintiff could also return to work retaining his former seniority.

 However, according to the defendants, as a condition for reinstatement, Island required that Morris provide a doctor's note stating that he was able to return to work. The doctor's letter submitted by Morris on May 23, 1994 was rejected by Island because it was not on a formal letterhead and did not indicate who was the attending physician. The defendants allege that on June 22, 1994, the plaintiff provided Island with the proper documentation and he resumed work on June 27, 1994. The plaintiff disputes this point. Morris contends that although he was never asked to submit a doctor's note as a condition for being rehired, he, in fact submitted numerous doctor's notes which were rejected by his supervisor David Rothman.

 The defendants contend that notwithstanding his reinstatement, Morris advised Local 819 that he wanted the Union to pursue a grievance for him over "back pay" for the five weeks between May 23, 1994 when he claimed he was able to return to work and June 27, 1994 when he was actually reinstated. The defendants further assert that Morris complained that he should have been rehired at the same rate of pay of the former warehouseman he was replacing.

 On July 20, 1994, the plaintiff raised certain grievances under the collective bargaining agreement, which expired on July 8, 1994. The defendants claim that these grievances included (1) that he was improperly denied a pay increase one month after he was originally hired in August, 1992 and (2) that he was denied overtime and a uniform allowance under the Collective Bargaining Agreement which expired on July 8, 1994. The plaintiff also complained to Local 819 about the appointment of another bargaining unit member as shop steward instead of himself.

 According to the defendants, on September 14, 1994 there was a grievance meeting attended by representatives of Island, Timothy Lynch, ("Lynch"), the new Business Agent for Local 819, and the plaintiff. The defendants contend that following this meeting, Lynch notified the plaintiff that Local 819 decided not to arbitrate his grievances. Local 819 determined that any arbitration for "back pay" would be unsuccessful and Island's insistence on a formal doctor's note prior to reinstatement was not unreasonable. In addition, Local 819 advised the plaintiff that he had no contractual basis for insisting that he be paid at the rate of pay of the former warehouseman whom he was replacing.

 The defendants further allege that Lynch explained to Morris that there was no merit to his claim of being denied a contractual pay increase in 1992. The pay increase the plaintiff believed he had been denied was designed to bring a new employee's wage rate up from the lower probationary wage rate to the starting wage rate for regular employees. Under the Agreement, Morris was not entitled to that particular increase.

 Finally, the defendants allege that Lynch had explained to the plaintiff that there was no basis for his complaint regarding the appointment of another bargaining unit member as shop steward. The plaintiff asserts however that under Article 14 of the Agreement, he was entitled to be appointed shop steward because of his higher seniority. On the other hand, the defendants respond that the Agreement did not state that the most senior employee was entitled to be appointed shop steward. The defendants also allege that notwithstanding the plaintiff's disagreement with Local 819 over this issue, Island had no role in the internal union matter of the selection of a Local 819 shop steward. Thus, this dispute cannot be brought as a "grievance" against Island under the Agreement.

 The defendants allege that Lynch not only communicated these decisions to the plaintiff directly, but on October 3, 1994, he sent Morris a letter stating the reasons Local 819 would not prosecute his grievances. According to the defendants, on August 25, 1994, the plaintiff suffered a new injury while working, left the job, and has not sought to return to work for Island.

 Local 819 moves this Court for an order granting summary judgment dismissing the Complaint as to all claims against it pursuant to Fed. R. Civ. P. 56 and Flaherty moves for a dismissal of all claims against him under Fed. R. Civ. P. 12(b)(6).


 A. As to Local 819's motion for summary judgment

 A court may grant summary judgment only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact, Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir. 1996), and the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Fed. R. Civ. P. 56(c) (setting forth summary judgment standard). The Court must, however, resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion. See Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995); Twin Laboratories, Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990); W.A. Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11-12 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987).

 According to the Second Circuit "summary judgment is a tool to winnow out from the trial calendar those cases whose facts predestine them to result in a directed verdict." United Nat'l Ins. Co. v. Tunnel, Inc., 988 F.2d 351, 355 (2d Cir. 1993). Once a party moves for summary judgment, the non-movant, must come forward with specific facts showing that a genuine issue exists to avoid the motion being granted. West-Fair Elec. Contractors v. Aetna Cas. & Surety Co., 78 F.3d 61, 63 (2d Cir. 1996); see also Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quoting Fed. R. Civ. P. 56(e)). A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248; see Vann v. New York City, 72 F.3d 1040, 1049 (2d Cir. 1995).

 However, mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment. See Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable. See Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). Finally, the Court is charged with the function of "issue-finding", not "issue-resolution." Gallo v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994).

 It is within this framework that the Court addresses the grounds for the present motion ...

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