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Carlisle v. United Parcel Service, Inc.

United States District Court, N.D. New York

August 29, 2017

ROBERT W. CARLISLE, Plaintiff,
v.
UNITED PARCEL SERVICE, INC.; and TEAMSTERS LOCAL 687, an Affiliate of the International Brotherhood of Teamsters, Defendants.

          BLAU LEONARD LAW GROUP, LLC Counsel for Plaintiff.

          EPSTEIN BECKER & GREEN P.C. Counsel for Defendant United Parcel Service, Inc.

          SATTER LAW FIRM, PLLC Counsel for Defendant Teamsters.

          SHELLY A. LEONARD, ESQ. STEVEN BENNETT BLAU, ESQ.

          JEREMY M. BROWN, ESQ. YAEL SPIEWAK, ESQ.

          MIMI C. SATTER, ESQ.

          DECISION AND ORDER

          GLENN T. SUDDABY, CHIEF UNITED STATES DISTRICT JUDGE.

         Currently 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.

         I. RELEVANT BACKGROUND

         A. Plaintiff's Complaint

         Generally, 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 ¶ 10.)

         In 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.)

         Thereafter, 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.)

         Based 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.)

         Familiarity 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 parties.

         B. Undisputed Material Facts on Defendants' Respective Motions for Summary Judgment

         Before 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.

         First, 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, C.J.).

         Second (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).

         Third, 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.

         Fourth, 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) (emphasis added).[1]

         1. Undisputed Material Facts on Local 687's Motion for Summary Judgment

         Unless 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].)

         General Background Regarding Plaintiff's Employment and Union Membership

         1. Plaintiff was employed by UPS from March 1990 until September 2015.

         2. 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.

         3. Plaintiff began his career with UPS in New York City, where he worked from 1990 to 1994 and was a member of IBT, Local 804.

         4. In or around l994, Plaintiff relocated and became a member of Local 687 in Potsdam, New York.

         5. At 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").

         6. In 2015, Plaintiff met with a Teamster Benefit Fund representative who informed Plaintiff that he was eligible for retiree health insurance coverage.

         7. To be eligible for retiree health insurance, an employee must be employed by UPS for at least 25 years.

         8. 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.

         9. As discussed in greater detail below, soon after acquiring retiree health insurance eligibility, Plaintiff engaged in behaviors resulting in a series of UPS disciplinary actions.[2]

         10. UPS is the world's largest package delivery company and a leading provider of specialized transportation and logistic services.

         11. UPS 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.

         12. Prior to February 2015, Robert Milne ("Milne") served as the UPS Business Manager at the Potsdam Center.

         13. In or around February 2015, Milne became the On-Road Supervisor for the Potsdam Center. In this capacity, Milne became Plaintiff's immediate supervisor.

         14. As his immediate supervisor, Milne had frequent, work-related contact with Plaintiff.

         15. In February 2015, Joelle Sebastian-Dean ("Sebastian-Dean") was appointed as the Potsdam Center's Business Manager.

         16. Although Sebastian-Dean effectively replaced Milne, Milne remained employed at the Potsdam Center as the On-Road Supervisor.

         17. As 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 pickup operations.

         18. Prior to Sebastian-Dean's assignment, the Potsdam Center "was not making their numbers in safety, service, production [and] cost."[3]

         19. 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 slide."[4]

         20. In pursuit of this goal, Sebastian-Dean began holding employees accountable for violations of UPS safety and service policies.

         21. Brian Speller ("Speller") is employed by UPS as a Labor Supervisor, a position he has held since 2007.

         22. Speller's responsibilities include recommending disciplinary suspensions and discharges to the UPS District Labor Manager.

         23. At various times in 2015, Speller recommended to the District Labor Manager that Plaintiff be suspended and, ultimately, discharged.

         General Background Regarding Local 687

         24. Local 687 is an unincorporated trade union, with its principle office at 214 Elm Street, Potsdam, New York.

         25. 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 York.

         26. The CBA was effective on August 1, 2013, and ends on July 31, 2018.

         27. Local 687 has approximately 1, 350 members who work under more than 120 collective bargaining agreements with various employers throughout Upstate New York.

         28. At all times relevant in 2015, Brian K. Hammond ("Hammond") was Local 687's Principal Executive Officer and an elected Business Agent.

         29. Hammond has served as a Local 687 Business Agent since approximately February 2001.

         30. Before serving as a Business Agent for the Local 687, Hammond worked for UPS as a delivery driver.

         31. Hammond regularly represents UPS delivery drivers with respect to negotiations, dispute resolution, grievances, and arbitrations.

         32. One of Hammond's primary duties consists of discerning which employee grievances have merit and which do not.

         33. Local 687 does not require its Business Agents to process all grievances to arbitration.

         34. When a dispute is reduced to a written grievance, the grievance becomes the property of Local 687.

         35. Local 687 determines whether or not to take the grievance to arbitration or some other dispute-resolution process.

         36. Hammond first handled a grievance for Plaintiff in 2003, after Plaintiff was involved in a workplace violence and harassment charge.

         37. Hammond was successful in having the charge dropped.

         38. In 2008, Hammond successfully handled another disciplinary grievance for Plaintiff.

         39. In an average year, about "a couple hundred" grievances are filed by or on behalf of Local 687 members.

         40. Many more work-related issues are resolved without the involved parties ever filing a grievance.[5]

         41. 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.

         42. Throughout 2015, Perry served as Union Steward at the Potsdam Center.

         43. As a Union Steward, Perry's responsibilities included handling members' grievances and discussing grievances with management.

         44. If unable to resolve a dispute, Perry would relay the information to a Local 687 Business Agent, such as Hammond.

         45. Tom Phillips ("Phillips") is a Local 687 member employed by UPS as a mechanic at the Potsdam Center.

         46. Phillips has served as a Local 687 Union Steward for the night shifts.

         47. In addition to Perry, Plaintiff related some of his 2015 grievances to Phillips.

         The CBA

         48. UPS 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.

         49. The National Master Agreement is supplemented by the Upstate/Western New York and United Parcel Service Rider ("Rider").[6]

         50. Articles 7, 46, and 58 of the CBA set forth the exclusive procedure for handling employee grievances with UPS at the local level.

         51. 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.

         52. Local 687 has discretion as to whether to pursue a grievance to arbitration.

         53. 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.”[7]

         54. Article 7 of the CBA allows an employee to continue working until a disciplinary action has been resolved by the Union and UPS.

         55. Pursuant to Article 58 of the CBA, UPS "shall not discharge nor suspend any employee without just cause."[8]

         56. Article 58 of the CBA outlines the process that UPS must follow in rendering a suspension or discharge.

         57. 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.

         58. The Union and UPS participate in the Upstate/Western New York Supplemental Panel Committee (“the arbitration panel”), which adjudicates all discharge and suspension grievances.

         59. The 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 neutral decision-maker.

         60. If 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.

         61. At 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.

         62. 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 testify.

         63. It is highly unusual for anyone other than the grievant to testify before the arbitration panel.

         64. Lawyers are not allowed to appear on behalf of the Union, UPS, or the grievant during the arbitration panel process.

         65. Both the Union and UPS are allowed only one adjournment as of right in the arbitration process.

         66. Any adjournment other than the one received as of right must be granted by the arbitration panel, which retains exclusive discretion in this regard.

         67. There are no appeals from an arbitration panel determination.

         March 3, 2015-Plaintiff's Conduct, Discipline, and Grievances

         68. On 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.

         69. Upon arriving at the address, Plaintiff concluded that Chapple's loading dock was wet and icy and, therefore, that the conditions were unsafe.[9]

         70. 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 Plaintiff's “unprofessional” conduct.[10]

         71. Chapple asserted that Plaintiff confronted her, threw the packages on the loading dock, and refused to stack the packages properly.[11]

         72. Plaintiff disagreed with Chapple's version of events.

         73. UPS conducted an investigation of the incident.

         74. During the investigation, UPS interviewed both Chapple and Plaintiff.

         75. Chapple submitted pictures of the packages strewn on the loading dock.[12]

         76. Plaintiff also provided UPS with pictures of the loading dock.

         77. Milne went to the Chapple's business to determine the condition of the loading dock.

         78. In 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 work-related accident.

         79. On 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.

         80. Plaintiff, Phillips, and Milne were present at the meeting.

         81. At 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 without damage.[13]

         82. 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 fashion.[14]

         83. 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 placed properly.[15]

         84. Sebastian-Dean conveyed these findings to Speller, who concluded that Plaintiff should be disciplined.[16]

         85. Thereafter, Sebastian-Dean wrote two letters to Plaintiff, both dated March 5, 2015, informing him of the charges against him and the related discipline.[17]

         86. One 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.

         87. Plaintiff received these letters.

         88. 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 not suspended.”[18]

         89. Hammond responded, “I was told by Mr. Speller that it is an Article 7 suspension[.]”[19]

         90. Plaintiff again inquired, “Am I suspended or not. Joelle [Sebastian-Dean] told you no. Today I finally received letters.”[20]

         91. At some point in March 2015, Plaintiff obtained a copy of a Local 687 grievance form.

         92. Plaintiff hand-wrote a grievance, contesting the one-day suspension.[21]

         93. The grievance asserted that UPS violated Article 7 of the CBA by issuing disciplinary action against him.

         94. More specifically, the grievance, later denominated as Case No. 20-15, asserted that Plaintiff “follow[s] methods everyday, as [he has] been trained.”[22]

         95. On March 19, 2015, Plaintiff filed another grievance, again contesting the March 3, 2015, suspension.[23]

         96. The second grievance described the UPS's warning letter and suspension notice as “inappropriate” and “too vague.”[24]

         97. 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 processing.

         Plaintiff's Violations of the UPS Policy Related to Shift Length, Discipline, and Grievances

         98. As 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”).[25]

         99. 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 communications.

         100. 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.

         101. On 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.

         102. Plaintiff and UPS drivers Jeff Stone, Bill Barrett and Al Goodwin attended the meeting, along with Perry and Milne.

         103. At the meeting, UPS took disciplinary action against Plaintiff for violating the 9.5 policy.[26]

         104. On April 3, 2015, Sebastian-Dean sent a letter to Plaintiff.

         105. The letter advised Plaintiff that UPS was imposing a three-day working suspension for his violation of the 9.5 policy.

         106. On 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 policy.[27]

         107. Sebastian-Dean's review was triggered by Plaintiff's “paid over” status, indicating that he worked more hours than he was allowed to work.[28]

         108. On April 7, 2015, Sebastian-Dean sent another letter to Plaintiff.

         109. 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.”

         110. On April 8, 2015, Plaintiff filed a handwritten grievance, later denominated Case No. 22-15.

         111. 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 . . . .”[29]

         112. Plaintiff protested UPS's imposition of discipline for not contacting Milne to report that he would be working more than 9.5 hours.

         113. Plaintiff discussed his grievances with Hammond and Perry.

         114. On 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 window.”[30]

         115. On April 17, 2015, a disciplinary meeting was held at the Potsdam Center to address Plaintiff's violations of the 9.5 policy.

         116. In 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.

         117. Prior to this meeting, Hammond called Speller regarding the pending disciplinary charges against Plaintiff.[31]

         118. Hammond asked Speller whether Plaintiff could “come back on a time served suspension.”[32]

         119. Speller replied that “we'll have to meet on the 17th and see what comes of that meeting.”[33]

         120. On April 17, 2015, Plaintiff attended the meeting with Hammond, Perry, Speller, Sebastian-Dean, and District Labor Manager Jim Dolan.

         121. At the meeting, Speller addressed whether Plaintiff failed to follow UPS methods, procedures, and instructions.

         122. Hammond and Perry represented Plaintiff at the meeting.

         123. 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.[34]

         124. 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.[35]

         125. 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.”[36]

         126. Hammond proposed alternatives to Plaintiff's discharge.[37]

         127. At the conclusion of the meeting, UPS believed that discharging Plaintiff was appropriate discipline.

         128. 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.

         129. On April 20, 2015, Sebastian-Dean sent a letter to Plaintiff.

         130. 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.”[38]

         131. 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 April 17.”[39]

         The Union's Pursuit of Plaintiff's Four Grievances to Final Arbitration

         132. In 2015, out of approximately 120 grievances filed by Local 687 members against UPS, only six cases involving discipline were brought before the arbitration panel.

         133. Four of the six grievances that were presented to the arbitration panel involved discipline issued against Plaintiff.

         134. In 2015, Plaintiff filed nearly a dozen grievances with Local 687 against UPS.

         135. 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 concurrently.

         136. 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.[40]

         137. 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 hours.[41]

         138. The third case-Case No. 22-15-also resulted from Plaintiff's alleged violations of the 9.5 policy.[42]

         139. 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").[43]

         140. 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 one-day suspension.

         141. The arbitration panel upheld the five-day suspension imposed in Case No. 22-15 and the discharge imposed in Case No. 23-15.[44]

         142. As a result of the discharge holding in Case No. 23-15, Plaintiff's employment with UPS ended on September 16, 2015.

         Plaintiff's Disagreements with the Union's Presentations to the Panel

         143. 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.[45]

         144. 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.[46]

         145. Local 687 docketed the grievance cases for an arbitration panel hearing to be held in May 2015.

         146. 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.[47]

         147. 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.

         148. On 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 “dishonest” acts.[48]

         149. In the same e-mail thread, Hammond responded, “Good get them together and e-mail them if you can and I can print them in color[.]”[49]

         150. 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 lying.”[50]

         151. Shortly after this e-mail exchange, Hammond's wife required surgery, causing him to be out ...


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