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May 10, 1997

KARL W. JELENIC, Plaintiff,

The opinion of the court was delivered by: MCAVOY


 Pro se plaintiff Karl Jelenic brought suit against his employer, defendant Campbell Plastics ("Campbell"), for wrongful termination and discrimination, and against his union, defendant IUE Local 318 ("Local 318"), for inadequate representation during grievance hearings and arbitration. Jelenic alleges that Campbell improperly discharged him for bringing safety concerns to his supervisors' attention, while Campbell maintains that he was terminated for insubordination. Essentially, Jelenic alleges that he was denied access to the union office when he sought to pursue his grievance against Campbell, and that during the arbitration of his grievance, "Ron Anderson an International Representative did show up and did nothing in assisting the case but make profane and derogatory statements towards me." (Amended Complaint at 1).

 Jelenic started working for Campbell in 1978. In April, 1994, he worked as "Injection Mold Heavy Helper" on the afternoon shift, which began at 3:00 p.m. As a Heavy Helper, Jelenic moved materials and supplies from one work location to another via forklift. Because of cutbacks at Campbell, Heavy Helpers had to transport materials both within and among three departments, Taurus, Extrusion, and Compounding.

 When Jelenic reported to work that day, McClasky told him to report to the Taurus Department instead of to his usual job assignment. Upon being told that he would have to work in two departments, Jelenic refused, citing a provision in the Collective Bargaining Agreement that allows employees with seniority to decline transfers. Campbell Plastics states that Jelenic's supervisor made every effort to convince Jelenic to perform his job, and that he was told that his refusal could result in his termination. When Jelenic continued to refuse the work assignment, he was suspended.

 The next day, April 19, Frank DeLuca (then-president of Local 318), Dave Palmer (vice-president of Local 318), Fred Davies (Campbell's Human Resources Manager), Paul Toomey (Campbell's Manufacturing Manager), Scott Riggi (Shop Steward), McClasky, and Jelenic held a meeting to discuss Jelenic's suspension. At this meeting, Jelenic states that he voiced his safety concerns about operating a forklift on Campbell's premises and that he did not have safety glasses the previous afternoon. Two days later, Davies notified Jelenic that he was being terminated for misconduct and insubordination. On the same day, April 21, Jelenic filed a grievance against Campbell for discrimination and breach of contract.

 In the following months, Jelenic and Local 318 arbitrated his grievance against Campbell. However, Jelenic informed Local 318 that he did not wish to be represented by Local 318, and retained his own lawyer, Ronald Dunn, of the firm Gleason, Dunn, Walsh & O'Shea. In his deposition, Attorney Dunn stated that Local 318 assisted in, and supplied him with all documents necessary for, the presentation of Jelenic's case. (Dunn Dep. at 11-15, 18).

 On August 31, the Arbitrator denied Jelenic's grievance, concluding that Campbell had proper and sufficient cause to terminate Jelenic for insubordination because he had "refused a clear and direct order that did not pose danger to himself or other employees." (Def's Exh. E). Local 318 argued in Jelenic's post-hearing brief that the punishment of termination was disproportionate to Jelenic's misconduct, but the arbitrator disagreed. On October 11, 1994, the NLRB upheld the arbitrator's award.

 Jelenic filed the instant Complaint on November 29, 1994. Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.


 A. Summary Judgment Standard

 Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, a court may grant summary judgment if it appears "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). It is the substantive law that will determine what facts are material to the outcome of a case. See Anderson, 477 U.S. at 250.

 Initially, the moving party has the burden of informing the court of the basis of its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the moving party satisfies its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The Court must then resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). However, the non-moving party must do more than simply show "that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Only when the Court ...

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