United States District Court, N.D. New York
ROBERT W. CARLISLE, Plaintiff,
UNITED PARCEL SERVICE, INC.; and TEAMSTERS LOCAL 687, an Affiliate of the International Brotherhood of Teamsters, Defendants.
LEONARD LAW GROUP, LLC Counsel for Plaintiff.
EPSTEIN BECKER & GREEN P.C. Counsel for Defendant United
Parcel Service, Inc.
LAW FIRM, PLLC Counsel for Defendant Teamsters.
A. LEONARD, ESQ. STEVEN BENNETT BLAU, ESQ.
M. BROWN, ESQ. YAEL SPIEWAK, ESQ.
C. SATTER, ESQ.
DECISION AND ORDER
T. SUDDABY, CHIEF UNITED STATES DISTRICT JUDGE.
before the Court, in this Labor Management Relations Act
("LMRA") action, filed by Robert W. Carlisle
("Plaintiff") against United Parcel Service, Inc.,
and Teamsters Local 687, an affiliate of the International
Brotherhood of Teamsters (“Defendants”), are
Defendants' respective motions for summary judgment
pursuant to Fed.R.Civ.P. 56. (Dkt. Nos. 20-21, 23.) For the
reasons set forth below, Defendants' motions are granted.
Plaintiff's Complaint alleges as follows. Plaintiff was
employed by Defendant United Parcel Service, Inc.
("UPS") as a package driver for approximately 25
years at UPS's Potsdam, New York, facility. (Dkt. No. 1
at ¶ 9 [Plf.'s Compl.].) During the relevant period,
Plaintiff was covered by a collective bargaining agreement
("CBA"), entered into between UPS and the
International Brotherhood of Teamsters, the local affiliate
of which is Defendant Teamsters Local 687 ("Local
687" or "the Union"). (Id. at ¶
December 2013, Plaintiff complained to UPS management that
his delivery truck was "continuously filling with smoke
fumes, causing him to be lightheaded, dizzy, and nauseous,
" and threatened to notify the Occupational Safety and
Health Administration ("OSHA") if his "concern
was not addressed in a timely manner." (Id. at
¶¶ 11-12.) UPS management "responded and
proceeded to resolve this situation, " but the problem
returned in January 2015. (Id. at ¶ 14.)
Despite the "unsafe work condition" created by the
"noxious interior cab environment, "
Plaintiff's manager, Joelle Sebastian-Dean, insisted that
he continue to drive the vehicle. (Id.) In February
2015, Plaintiff filed a complaint against UPS with OSHA,
alleging "possible overexposure to carbon monoxide due
to poor running vehicles." (Id. at ¶ 15.)
Plaintiff was subjected to "multiple retaliatory adverse
employment actions" based upon prohibited
considerations. (Id. at ¶ 16.) More
specifically, the following events transpired after Plaintiff
filed his OSHA complaint: (1) on March 3, 2015, Plaintiff was
issued a warning letter for failing to report an injury that
he sustained two weeks earlier; (2) on March 5, 2015,
Plaintiff was issued a "suspension and warning
letter" for refusing to "stack packages he was
delivering onto a loading dock which had an ice
accumulation”; (3) Plaintiff filed grievances with
respect to both of these instances of discipline; (4) as a
result of his suspension, Plaintiff filed a complaint with
OSHA, alleging retaliatory employment practices in violation
of the whistleblower provisions of the Occupational Safety
and Health Act, 29 U.S.C. § 660(c); (5) on April 3,
2015, Plaintiff was subjected to "further retaliatory
discipline" when he was suspended for three days,
allegedly for violating an unwritten policy requiring him to
call the "private cell phone of his immediate
supervisor" to advise the supervisor that Plaintiff
would be taking longer than anticipated to complete his
delivery route; (6) on April 7, 2015, Plaintiff was issued a
five-day suspension for "failing to follow methods,
procedures, and instructions to communicate with his center
team regarding completion of his delivery route"; (7) on
April 17, 2015, Plaintiff received an "official
discharge notice" and, on the same date, he filed an
amended whistleblower complaint against UPS pursuant to the
Surface Transportation Assistance Act, 49 U.S.C. §
31105; (8) on June 4, 2015, Plaintiff was issued a
"working discharge" from UPS for allegedly failing
to follow proper safety methods, procedures, and instructions
when he drove a golf cart onto UPS property while scheduled
to be on vacation; (9) on September 16, 2015, an arbitration
panel denied Plaintiff's grievances and affirmed his
permanent discharge. (Id. at ¶¶ 17-26.)
upon these factual allegations, Plaintiff asserts a
"hybrid" claim pursuant to section 301 of the LMRA,
29 U.S.C. § 185(a), embodied in two related
"[c]ounts": (1) a claim that Local 687 breached its
duty of fair representation by (among other things) failing
to properly investigate and prepare Plaintiff's
grievances against UPS, recklessly handling Plaintiff's
grievances and defense, and discriminating against him based
on his complaints that Brian Hammond, the president of Local
687, had engaged in "prohibited activities and
irregularities" in his duties and had a "sweetheart
deal" with UPS that resulted in a conflict of interest;
and (2) a claim that UPS breached the CBA by (a) requiring
Plaintiff to drive an unsafe delivery vehicle, (b) requiring
him to "engage in activities involving dangerous
conditions of work, " (c) retaliating against him (in
the form of "intimidation, harassment, coercion,
discipline and adverse employment actions") for filing
an OSHA complaint regarding his work vehicle, and (d)
disciplining, suspending, and terminating him without just
cause. (Id. at ¶¶ 27-61.)
with the factual allegations supporting the claims in
Plaintiff's Complaint is assumed in this Decision and
Order, which is intended primarily for the review of the
Undisputed Material Facts on Defendants' Respective
Motions for Summary Judgment
reciting the undisputed facts material to Defendants'
motions, the Court must address four issues it has identified
in Plaintiff's responses Defendants' respective
statements of material facts (“Rule 7.1
Statement”), filed pursuant to Local Rule 7.1(a)(3) of
the Court's Local Rules of Practice.
throughout Plaintiff's responses (“Rule 7.1
Response”), there are several instances in which he
responds that a fact is either “Undisputed”or
“Disputed, ” but (in either case) then asserts
additional facts (not directly responsive to the fact
asserted) and/or makes legal arguments in those responses.
(See, e.g., Dkt. No. 30 at ¶¶
69-71, 81-82, 107-08, 143, 145, 148, 158, 175-76, 220-21
[Plf.'s Rule 7.1 Response to Union].) Where this occurs
(and unless Plaintiff has supported a denial with a citation
to the record where a factual dispute actually arises), the
Court will deem those facts admitted and disregard the
additional facts and/or legal argument asserted by Plaintiff.
See CA, Inc. v. New Relic, Inc., 12-CV-5468, 2015 WL
1611993, at *2 n.3 (E.D.N.Y. Apr. 8, 2015) (holding that
“the Court will consider the statement provided by
[Plaintiff] as undisputed because [Defendant's] initial
response in each instance is, in fact,
‘Undisputed'”); Washington v. City of New
York, 05-CV-8884, 2009 WL 1585947, at *1 n.2 (S.D.N.Y.
June 5, 2009) (holding that “the statement provided by
Defendants is taken as true because Plaintiff[']s initial
response in each instance is ‘Admit'”);
see also Baity v. Kralik, 51 F.Supp.3d 414, 418
(S.D.N.Y. 2014) (noting that plaintiff's responses failed
to comply with the court's local rules where
“Plaintiff's purported denials . . . improperly
interject arguments and/or immaterial facts in response to
facts asserted by Defendants, often speaking past
Defendants' asserted facts without specifically
controverting those same facts”); Goldstick v. The
Hartford, Inc., 00-CV-8577, 2002 WL 1906029, at *1
(S.D.N.Y. Aug. 19, 2002) (striking plaintiff's Rule 56.1
Statement, in part, because plaintiff added
“argumentative and often lengthy narrative in almost
every case the object of which [wa]s to ‘spin' the
impact of the admissions plaintiff has been compelled to
make”). To the extent that Plaintiff desired to set
forth additional material facts that he contends are in
dispute, “he . . . [wa]s required by Local Rule
7.1(a)(3) to do so in separately numbered paragraphs.”
Johnson v. City of Troy, 14-CV-0817, 2016 WL
5107124, at *8 n.12 (N.D.N.Y. Sept. 20, 2016) (Suddaby,
(and relatedly), there are several instances in which
Plaintiff purports to “[d]ispute” a fact not
actually asserted-or, in certain instances, merely
implied-by the movant's Rule 7.1 Statement.
(See, e.g., Dkt. No. 30 at ¶¶ 9, 69-71,
81-82 118-19, 120 [Plf's Rule 7.1 Response to Union].)
Purported denials of facts not expressly asserted (or of
those merely implied) are insufficient to create a genuine
dispute with respect to the fact that a movant actually
asserts. See Yetman v. Capital Dis. Trans. Auth.,
12-CV-1670, 2015 WL 4508362, at *10 (N.D.N.Y. July 23, 2015)
(Suddaby, J.) (citing authority for the point of law that the
summary judgment procedure involves the disputation of
asserted facts, not the disputation of
implied facts); cf. Baity, 51 F.Supp.3d at
418. The Court notes that a party denying a fact asserted
must (a) expressly state that all or part of a fact is
denied, and (b) if part of a factual assertion is disputed,
specify which part of the assertion is denied.
N.D.N.Y. L.R. 7.1(a)(3).
there are several instances in which Plaintiff purports to
“[d]ispute” a fact asserted on the basis that he
“does not remember” or “does not
recall” the accuracy or truth of the fact asserted.
(See, e.g., Dkt. No. 30 at ¶¶ 125-26,
188-89 [Plf.'s Rule 7.1 Response to Union].) As the
Second Circuit has observed, “vague denials and memory
lapses . . . do not create genuine issues of material
fact.” F.D.I.C. v. Nat'l Union Fire Ins. Co. of
Pittsburgh, PA, 205 F.3d 66, 75 (2d Cir. 2000);
accord, Genger v. Genger, 663 F. App'x 44, 49
n.4 (2d Cir. 2016) (summary order). Accordingly, any properly
supported factual assertion to which Plaintiff responds by
asserting only that he does not remember the accuracy or
truth of the fact asserted will be deemed admitted.
and finally, there are a handful of instances in which
Plaintiff has “[d]isputed” a factual assertion by
either (a) citing to record evidence generally and without
providing a specific or pinpoint citation to the portion of
the record evidence where the purported dispute arises, or
(b) not citing the record at all. (See, e.g., Dkt.
No. 30 at ¶¶ 9, 40 [Plf.'s Rule 7.1 Response to
Union].) Local Rule 7.1(a)(3) of the Court's Local Rules
of Practice requires litigants to provide a
“specific citation to the record where the
factual issue arises.” N.D.N.Y. L.R. 7.1(a)(3)
Undisputed Material Facts on Local 687's Motion for
otherwise noted, the following facts were asserted and
supported with accurate record citations by Local 687 in its
Rule 7.1 Statement and expressly admitted by Plaintiff in his
Rule 7.1 Response. (Compare Dkt. No. 20, Attach. 2
[Union's Rule 7.1 Statement] with Dkt. No. 30
[Plf.'s Rule 7.1 Response to Union].)
Background Regarding Plaintiff's Employment and Union
Plaintiff was employed by UPS from March 1990 until September
While employed by UPS, Plaintiff held both part-time and
full-time positions, including loader and package driver;
and, at all relevant times, Plaintiff was a member of the
International Brotherhood of Teamsters ("IBT") and
Local 687, an IBT-affiliated local union.
Plaintiff began his career with UPS in New York City, where
he worked from 1990 to 1994 and was a member of IBT, Local
or around l994, Plaintiff relocated and became a member of
Local 687 in Potsdam, New York.
all times relevant in 2015, Plaintiff worked as a package
driver, operating primarily from the UPS Potsdam Warehouse
Center in Potsdam, New York ("Potsdam Center").
2015, Plaintiff met with a Teamster Benefit Fund
representative who informed Plaintiff that he was eligible
for retiree health insurance coverage.
be eligible for retiree health insurance, an employee must be
employed by UPS for at least 25 years.
Plaintiff worked for UPS as a member of Teamsters Local Union
804 for four years and as a member of Local 687 for 21 years.
discussed in greater detail below, soon after acquiring
retiree health insurance eligibility, Plaintiff engaged in
behaviors resulting in a series of UPS disciplinary
is the world's largest package delivery company and a
leading provider of specialized transportation and logistic
employs roughly 250 individuals who work in three
distribution centers in Upstate New York and who are
represented for collective bargaining purposes by Local 687.
Prior to February 2015, Robert Milne ("Milne")
served as the UPS Business Manager at the Potsdam Center.
or around February 2015, Milne became the On-Road Supervisor
for the Potsdam Center. In this capacity, Milne became
Plaintiff's immediate supervisor.
his immediate supervisor, Milne had frequent, work-related
contact with Plaintiff.
February 2015, Joelle Sebastian-Dean
("Sebastian-Dean") was appointed as the Potsdam
Center's Business Manager.
Although Sebastian-Dean effectively replaced Milne, Milne
remained employed at the Potsdam Center as the On-Road
Business Manager, Sebastian-Dean oversaw all aspects of the
Potsdam Center, including the loading of "package
cars" in the morning, the on-road workday, and night
Prior to Sebastian-Dean's assignment, the Potsdam Center
"was not making their numbers in safety, service,
production [and] cost."
Upon her arrival, Sebastian-Dean focused on ensuring that UPS
employment policies were implemented correctly and
consistently; in other words, she did not "let things
pursuit of this goal, Sebastian-Dean began holding employees
accountable for violations of UPS safety and service
Brian Speller ("Speller") is employed by UPS as a
Labor Supervisor, a position he has held since 2007.
Speller's responsibilities include recommending
disciplinary suspensions and discharges to the UPS District
various times in 2015, Speller recommended to the District
Labor Manager that Plaintiff be suspended and, ultimately,
Background Regarding Local 687
Local 687 is an unincorporated trade union, with its
principle office at 214 Elm Street, Potsdam, New York.
Local 687 is an affiliate of the IBT. In conjunction with the
Teamsters United Parcel Service National Negotiating
Committee, it is a party to the CBA, which governs the terms
and conditions of employment for UPS employees in Upstate New
CBA was effective on August 1, 2013, and ends on July 31,
Local 687 has approximately 1, 350 members who work under
more than 120 collective bargaining agreements with various
employers throughout Upstate New York.
all times relevant in 2015, Brian K. Hammond
("Hammond") was Local 687's Principal Executive
Officer and an elected Business Agent.
Hammond has served as a Local 687 Business Agent since
approximately February 2001.
Before serving as a Business Agent for the Local 687, Hammond
worked for UPS as a delivery driver.
Hammond regularly represents UPS delivery drivers with
respect to negotiations, dispute resolution, grievances, and
of Hammond's primary duties consists of discerning which
employee grievances have merit and which do not.
Local 687 does not require its Business Agents to process all
grievances to arbitration.
When a dispute is reduced to a written grievance, the
grievance becomes the property of Local 687.
Local 687 determines whether or not to take the grievance to
arbitration or some other dispute-resolution process.
Hammond first handled a grievance for Plaintiff in 2003,
after Plaintiff was involved in a workplace violence and
Hammond was successful in having the charge dropped.
2008, Hammond successfully handled another disciplinary
grievance for Plaintiff.
an average year, about "a couple hundred"
grievances are filed by or on behalf of Local 687 members.
Many more work-related issues are resolved without the
involved parties ever filing a grievance.
Union Steward Kirk Perry ("Perry") worked for UPS
as a delivery driver and served as Union Steward for periods
during the 1980s, 1990s, and for an additional two or three
years immediately prior to his retirement in February 2016.
Throughout 2015, Perry served as Union Steward at the Potsdam
a Union Steward, Perry's responsibilities included
handling members' grievances and discussing grievances
unable to resolve a dispute, Perry would relay the
information to a Local 687 Business Agent, such as Hammond.
Phillips ("Phillips") is a Local 687 member
employed by UPS as a mechanic at the Potsdam Center.
Phillips has served as a Local 687 Union Steward for the
addition to Perry, Plaintiff related some of his 2015
grievances to Phillips.
and various local unions affiliated with the IBT, including
Local 687, are parties to a National Master Agreement,
governing the terms and conditions of employment of
bargaining unit members.
National Master Agreement is supplemented by the
Upstate/Western New York and United Parcel Service Rider
Articles 7, 46, and 58 of the CBA set forth the exclusive
procedure for handling employee grievances with UPS at the
When an employee wants to grieve a particular action or
omission, he or she must file a grievance with the Union and
UPS within 10 days of the date of that action or omission.
Local 687 has discretion as to whether to pursue a grievance
Article 7 of the CBA states that, “[e]xcept in cases
involving cardinal infractions under the applicable
Supplement, Rider or Addendum, an employee to be discharged
or suspended shall be allowed to remain on the job, without
loss of pay unless and until the discharge or suspension is
sustained under the grievance procedure.”
Article 7 of the CBA allows an employee to continue working
until a disciplinary action has been resolved by the Union
Pursuant to Article 58 of the CBA, UPS "shall not
discharge nor suspend any employee without just
Article 58 of the CBA outlines the process that UPS must
follow in rendering a suspension or discharge.
Article 46 of the CBA establishes a procedure for final and
binding arbitration when a disciplinary grievance cannot be
resolved by the Union and UPS.
Union and UPS participate in the Upstate/Western New York
Supplemental Panel Committee (“the arbitration
panel”), which adjudicates all discharge and suspension
arbitration panel is comprised of two Co-Chairs from IBT
locals other than the one impacted, two Co-Chairs
representing UPS, and a paid Arbitrator who serves as the
an employee has been issued a working suspension or discharge
under Article 7 of the CBA, he or she can continue working
for UPS until the arbitration panel issues its decision.
any time prior to the arbitration panel's decision, the
parties can agree on a resolution, such as (for example) a
time-served suspension in lieu of a discharge.
During arbitration panel proceedings, both the Union and UPS
are permitted to submit written briefs articulating their
respective positions on the matter at issue, as well as
documentary evidence. Moreover, the grievant is permitted to
is highly unusual for anyone other than the grievant to
testify before the arbitration panel.
Lawyers are not allowed to appear on behalf of the Union,
UPS, or the grievant during the arbitration panel process.
Both the Union and UPS are allowed only one adjournment as of
right in the arbitration process.
adjournment other than the one received as of right must be
granted by the arbitration panel, which retains exclusive
discretion in this regard.
There are no appeals from an arbitration panel determination.
3, 2015-Plaintiff's Conduct, Discipline, and
March 3, 2015, Plaintiff was assigned to deliver several
packages to a customer, Marlene Chapple
("Chapple"), whose business was located at 812
Proctor Street, Ogdensburg, New York.
Upon arriving at the address, Plaintiff concluded that
Chapple's loading dock was wet and icy and, therefore,
that the conditions were unsafe.
After Plaintiff delivered the packages, Chapple contacted the
Potsdam Center and expressed her dissatisfaction with the
handling of the packages, as well as what she described as
Chapple asserted that Plaintiff confronted her, threw the
packages on the loading dock, and refused to stack the
Plaintiff disagreed with Chapple's version of events.
conducted an investigation of the incident.
During the investigation, UPS interviewed both Chapple and
Chapple submitted pictures of the packages strewn on the
Plaintiff also provided UPS with pictures of the loading
Milne went to the Chapple's business to determine the
condition of the loading dock.
addition to the incident with Chapple, on March 3, 2015,
Plaintiff told Milne that he was experiencing numbness in his
toes, which had purportedly started two weeks earlier while
Plaintiff was driving. Milne reported this as a violation of
UPS policy and Article 18 of the CBA, which states that
“[a]ny employee involved in any accident shall
immediately notify the Employer.” Because the numbness
happened while Plaintiff was driving, Milne considered it a
March 3, 2015, after Plaintiff completed his route, a meeting
was held at the Potsdam Center to address the customer
complaint investigation, as well as whether Plaintiff had
failed to timely report a work-related injury.
Plaintiff, Phillips, and Milne were present at the meeting.
the meeting, Milne asserted that, based on the investigation,
even if the loading dock was wet and/or icy, there were other
means by which Plaintiff could have unloaded the packages
Specifically, Milne determined that, even if Plaintiff could
not move directly from the truck to the loading dock, he
could have gone through a pedestrian door to reach the dock
and place the packages in an appropriate and orderly
Based on its investigation, UPS concluded that Plaintiff
changed his story of what transpired several times, and that
the photographic evidence showed that the packages were not
Sebastian-Dean conveyed these findings to Speller, who
concluded that Plaintiff should be disciplined.
Thereafter, Sebastian-Dean wrote two letters to Plaintiff,
both dated March 5, 2015, informing him of the charges
against him and the related discipline.
of the letters was a warning notice concerning
Plaintiff's failure to report his “injury;”
and the other letter informed Plaintiff that UPS was imposing
a one-day working suspension in relation to Chapple's
complaint about Plaintiff's delivery.
Plaintiff received these letters.
Nearly two weeks later, on March 18, 2015, Plaintiff e-mailed
Hammond and expressed his belief that “UPS has 72 hours
to put you on notice that they are going to take action and
once they put you on notice they have 10 days to take action
. . . this is now greater than two weeks and I'm still
Hammond responded, “I was told by Mr. Speller that it
is an Article 7 suspension[.]”
Plaintiff again inquired, “Am I suspended or not.
Joelle [Sebastian-Dean] told you no. Today I finally received
some point in March 2015, Plaintiff obtained a copy of a
Local 687 grievance form.
Plaintiff hand-wrote a grievance, contesting the one-day
grievance asserted that UPS violated Article 7 of the CBA by
issuing disciplinary action against him.
More specifically, the grievance, later denominated as Case
No. 20-15, asserted that Plaintiff “follow[s] methods
everyday, as [he has] been trained.”
March 19, 2015, Plaintiff filed another grievance, again
contesting the March 3, 2015, suspension.
second grievance described the UPS's warning letter and
suspension notice as “inappropriate” and
Upon submission, the grievances became the property of Local
687, which had the responsibility of determining whether the
grievances had sufficient merit to warrant further
Violations of the UPS Policy Related to Shift Length,
Discipline, and Grievances
a matter of unwritten policy, Sebastian-Dean required each
driver to call his or her supervisor if the delivery route
that he or she was servicing was going to exceed 9.5 hours of
work that day (“the 9.5 policy”).
Before Sebastian-Dean issued this requirement, drivers could
notify management if their workday was going to exceed 9.5
hours by using UPS's Delivery Information Acquisition
Device (“DIAD”), a handheld device that allows
drivers to (among other things) scan packages and relay
Even after the requirement of strict compliance with the 9.5
policy was communicated to drivers, Sebastian-Dean recognized
that several drivers were still failing to comply with it.
April 2, 2015, four drivers at the Potsdam Center were called
to a meeting to address 9.5 policy compliance. Plaintiff was
among this group of drivers.
Plaintiff and UPS drivers Jeff Stone, Bill Barrett and Al
Goodwin attended the meeting, along with Perry and Milne.
the meeting, UPS took disciplinary action against Plaintiff
for violating the 9.5 policy.
April 3, 2015, Sebastian-Dean sent a letter to Plaintiff.
The letter advised Plaintiff that UPS was imposing a
three-day working suspension for his violation of the 9.5
April 7, 2015, Sebastian-Dean reviewed the UPS automated
delivery record system, which showed that, on April 6, 2015,
Plaintiff again failed to comply with the 9.5
Sebastian-Dean's review was triggered by Plaintiff's
“paid over” status, indicating that he worked
more hours than he was allowed to work.
April 7, 2015, Sebastian-Dean sent another letter to
The letter informed Plaintiff that UPS was imposing a
five-day working suspension for his “failure to follow
proper delivery methods, procedures and instructions,
regarding proper communication with [the] center team.”
April 8, 2015, Plaintiff filed a handwritten grievance, later
denominated Case No. 22-15.
The grievance asserted “[o]n Thursday, April 2, I was
issued a three-day suspension for not communicating I would
be over 9.5 hours. I did communicate this as usual . . .
Plaintiff protested UPS's imposition of discipline for
not contacting Milne to report that he would be working more
than 9.5 hours.
Plaintiff discussed his grievances with Hammond and Perry.
April 10, 2015, Plaintiff filed another grievance, in which
he asserted that he was told by Sebastian-Dean to take a meal
break outside of an “appropriate time
April 17, 2015, a disciplinary meeting was held at the
Potsdam Center to address Plaintiff's violations of the
addition to the 9.5 policy violations, the meeting also
addressed the issue of whether Plaintiff was failing to
register stops correctly in his DIAD.
Prior to this meeting, Hammond called Speller regarding the
pending disciplinary charges against Plaintiff.
Hammond asked Speller whether Plaintiff could “come
back on a time served suspension.”
Speller replied that “we'll have to meet on the
17th and see what comes of that meeting.”
April 17, 2015, Plaintiff attended the meeting with Hammond,
Perry, Speller, Sebastian-Dean, and District Labor Manager
the meeting, Speller addressed whether Plaintiff failed to
follow UPS methods, procedures, and instructions.
Hammond and Perry represented Plaintiff at the meeting.
The Union presented evidence in an effort to support
Plaintiff's position that he properly recorded his
package deliveries in the DIAD and in the manner in which he
had been trained.
Because the meeting addressed Plaintiff's accumulated
disciplinary charges, the Union presented evidence related to
Plaintiff's March 3, April 2, and April 7, 2015,
suspensions as well.
For example, Hammond, who had prior, personal experience with
the individual involved in the customer complaint (Chapple)
from his days at a driver, argued that Chapple was “a
pretty hard person to get along with.”
Hammond proposed alternatives to Plaintiff's
the conclusion of the meeting, UPS believed that discharging
Plaintiff was appropriate discipline.
Sometime shortly after the meeting, Plaintiff contacted his
doctor about going on medical leave for a back injury. As a
result, Plaintiff did not return to work until May 22, 2015.
April 20, 2015, Sebastian-Dean sent a letter to Plaintiff.
The letter stated, “This is an Official Discharge
Notice as outlined in the current labor agreement between UPS
and I.B.T. Local 687.” The basis for Plaintiff's
discharge was his failure to “follow proper delivery
methods, procedure and instructions.”
Despite being issued a working discharge for improperly
sheeting packages, Plaintiff did not change his behavior. He
testified during his deposition, “I had been instructed
to record the packages exactly how I recorded them after
Union's Pursuit of Plaintiff's Four Grievances to
2015, out of approximately 120 grievances filed by Local 687
members against UPS, only six cases involving discipline were
brought before the arbitration panel.
Four of the six grievances that were presented to the
arbitration panel involved discipline issued against
2015, Plaintiff filed nearly a dozen grievances with Local
687 against UPS.
Many of the grievances stemmed from the same or similar
underlying events, and were consolidated into four distinct
cases that were presented to the arbitration panel
The first case-Case No. 20-15-concerned Chapple's
complaint on March 3, 2015, about Plaintiff's allegedly
unprofessional conduct while making a delivery. As noted
above, this complaint resulted in UPS issuing a one-day
suspension to Plaintiff.
The second case-Case No. 21-15-concerned the accusations that
Plaintiff “fail[ed] to follow proper delivery methods,
procedures and instructions regarding proper communication
with the center team, ” by not calling his supervisor
(Milne) to report that his shift would exceed 9.5
The third case-Case No. 22-15-also resulted from
Plaintiff's alleged violations of the 9.5
The fourth and final case to proceed to arbitration-Case No.
23-15-concerned an allegation first presented to Plaintiff at
the April 17, 2015, disciplinary meeting. More specifically,
as noted above, Plaintiff was informed that he improperly
registered his package deliveries in his DIAD (a process
colloquially known as "sheeting").
The Union prevailed (at least in part) before the Panel in
Case Nos. 20-15 and 21-15. Plaintiff's suspension (from
March 3, 2015) was reduced to a warning, and Plaintiff's
three-day suspension (from April 7, 2015) was reduced to a
The arbitration panel upheld the five-day suspension imposed
in Case No. 22-15 and the discharge imposed in Case No.
a result of the discharge holding in Case No. 23-15,
Plaintiff's employment with UPS ended on September 16,
Disagreements with the Union's Presentations to the
Shortly after the April 17, 2015, meeting, the Union
evaluated the merits of Plaintiff's grievances and
decided to present Plaintiff's four-discipline case to
the arbitration panel.
Although UPS conveyed its intent to discharge Plaintiff,
UPS's action was taken pursuant to Article 7 of the CBA,
which allowed Plaintiff to continue working pending a final
decision by the arbitration panel.
Local 687 docketed the grievance cases for an arbitration
panel hearing to be held in May 2015.
The Union asserted that, because all of the disciplinary
actions taken were pursuant to Article 7, and thus were not
cardinal infractions, UPS did not have grounds to discharge
Plaintiff wanted to argue that UPS had repeatedly directed
him to engage in unethical behavior and that he was being
subjected to retaliation for making complaints about UPS
working conditions to OSHA.
April 23, 2015, Plaintiff sent an e-mail to Hammond, in which
he asserted that he possessed several messages from UPS
asking him to participate in “unethical” and
the same e-mail thread, Hammond responded, “Good get
them together and e-mail them if you can and I can print them
Plaintiff responded, “The company is the one with the
integrity problem not me [sic] or the people I work
with Brian. . . . You need to know that I'm not
Shortly after this e-mail exchange, Hammond's wife
required surgery, causing him to be out ...