Barr v. United Parcel Service, Inc., s. 23

• Decision Date: 10 February 1989
• Docket Number: D,24,Nos. 23,s. 23
• Citation: 868 F.2d 36
• Parties: 130 L.R.R.M. (BNA) 2593, 110 Lab.Cas. P 10,940 Joe L. BARR, a/k/a Joseph L. Barr, Plaintiff-Appellee (re: 88-7230), v. UNITED PARCEL SERVICE, INC. and Local 804 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Defendants, Local 804 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Defendant-Appellant (re: 88-7230), United Parcel Service, Inc., Defendant-Appellee (re: 88-7230), Joe L. BARR, a/k/a Joseph L. Barr, Plaintiff-Appellee (re: 88-7244), v. UNITED PARCEL SERVICE, INC., and Local 804 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Defendants, United Parcel Service, Inc., Defendant-Appellant (re: 88-7244) ockets 88-7230, 88-7244.
• Court: U.S. Court of Appeals — Second Circuit

Page 36

868 F.2d 36

130 L.R.R.M. (BNA) 2593, 110 Lab.Cas. P 10,940

Joe L. BARR, a/k/a Joseph L. Barr, Plaintiff-Appellee (re: 88-7230), v. UNITED PARCEL SERVICE, INC. and Local 804 of the

International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of

America, Defendants,

Local 804 of the International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America, Defendant-Appellant (re: 88-7230), United Parcel Service, Inc., Defendant-Appellee (re: 88-7230), Joe L. BARR, a/k/a Joseph L. Barr, Plaintiff-Appellee (re: 88-7244), v. UNITED PARCEL SERVICE, INC., and Local 804 of the

International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of

America, Defendants,

United Parcel Service, Inc., Defendant-Appellant (re: 88-7244)

Nos. 23, 24, Dockets 88-7230, 88-7244.

United States Court of Appeals Second Circuit.

Argued Sept. 13, 1988.

Decided Feb. 10, 1989.

Richard N. Gilberg, New York City (Cohen, Weiss and Simon, New York City, Susan Davis, Earl R. Pfeffer, of counsel), for Local 804 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.

Harold J. Johnson, Brooklyn, N.Y. (Flamhaft Levy Kamins Hirsch & Booth, Brooklyn, N.Y., of counsel), for Joe L. Barr.

Jeffrey A. Mishkin, New York City (Proskauer Rose Goetz & Mendelsohn, Mary Ruth Houston, New York City, of counsel), United Parcel Service, Inc.

Before LUMBARD and MAHONEY, Circuit Judges, and CHOLAKIS, District Judge. ^*

LUMBARD, Circuit Judge:

This is an appeal from a judgment entered on a jury verdict in the Eastern District of New York, Charles P. Sifton, Judge, ordering Joseph L. Barr's reinstatement and awarding him back pay in his suit against his former employer, United Parcel Service, Inc. (UPS), for wrongful discharge, and his labor union, Local 804 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 804), for having violated its duty of fair representation under LMRA Sec. 301. The district court apportioned the stipulated back pay damages by holding UPS liable in the amount of $2,482.48 and Local 804 liable for the balance of $83,349.82. The principal contention of UPS and Local 804 is that there was insufficient evidence of a breach of Local 804's duty of fair representation for that claim to go to the jury. We agree, and accordingly we vacate the verdict and dismiss Barr's complaint.

I.

A. The March Incident

The events which culminated in this appeal took place at UPS's package sorting facility in Maspeth, Queens, New York, at about 3:50 a.m. on March 1, 1983. Barr, a package sorter who had worked for UPS for fourteen years, allegedly failed to produce a package in his possession for a security inspection when he was leaving the plant after his 5:45 p.m. to 2:45 a.m. shift. UPS maintains security checkpoints at the exits of its Maspeth plant to prevent thefts by its employees of parcels in its care; a UPS rule, published and in effect for several years and which had been reaffirmed by a posted notice on February 11, 1983, provided that "[e]mployees exiting the building with any bags, attache cases, etc., must open them for inspection by the guard on duty." The rule explicitly stated that an employee's failure to comply with this procedure might result in his or her discharge.

The evidence we summarize was formally presented first at the arbitration hearing at which Barr's discharge was upheld and again, de novo, at trial. Although the parties have quite different versions of the events at the security checkpoint on March 1, the evidence adduced at trial is generally consistent with that presented at the arbitration hearing.

Barr's version is that when he passed the checkpoint, he displayed to Siro Security Guard Antonio Mateo the contents of the 11 1/2 by 14 inch flat brown paper bag which he was carrying. (UPS retained Siro Security to provide security services at the Maspeth facility.) Barr testified, both at the arbitration hearing and at trial, that he had taken the then-empty paper bag from his locker in the plant and had placed several dental insurance forms inside. He then met two co-workers, Harold Griffin and Johnny Scott, whom he had agreed to drive home. As the three men passed Mateo, Mateo asked Barr to show him the contents of the bag. Barr alleges that he removed the dental forms from the bag, inverted it and shook it to show that it was empty, replaced the forms inside the bag and walked past Mateo and out of the plant. He heard Loss Prevention Clerk James R. Albert (whose name Barr did not know at the time) say "Hey buddy" in Barr's direction when Barr was about six car lengths from the UPS main gate. He then turned around, and Albert accused him of having failed to show his bag to Mateo. Barr replied that he had shown Mateo the bag, and he alleges that he showed it to Albert as well, by removing the forms and shaking the bag in the same manner as before. He then got in his car and departed; Albert wrote down the license plate number of the car and reported the incident. Barr further alleges that an unidentified supervisor drove alongside his car while he was waiting for it to "warm up" and asked what had happened. Barr told this supervisor that a guard had asked him about his bag and that he had shown the guard its contents. The supervisor then drove away.

Mateo's recollection was quite different. He testified that, when he asked Barr (whom he alleges he did not know) to permit him to examine the bag, Barr responded "no" and kept walking through the gate with one companion, whom Mateo also did not know. Mateo went immediately to the nearby Loss Prevention office and told Albert what had happened. Mateo and Albert went outside, where Albert then confronted Barr. Mateo and Albert then went back inside the plant, where Mateo signed a statement to the effect that he had seen an employee exit the plant, had asked to see his bag, had been refused and had reported the incident to Albert.

Albert, who had worked part time for over five years in the UPS loss prevention office, alleged that Mateo reported the incident at the gate to him at 3:50 a.m. on March 1 and that the two of them then went outdoors, where Mateo pointed out Barr and one other employee. Albert asserts that, when he identified himself to Barr, Barr asked him if he wanted to look into the bag and partly removed some papers from the bag. Albert declined to inspect the bag (it apparently being "too late", since the men were outdoors and the rule requires that bags be inspected inside the plant). Albert says that he then returned to the plant, spoke with Mateo and prepared statements for himself and Mateo to sign.

Barr called Griffin and Scott, the two men whom he drove home after their shift on March 1, as witnesses at both the arbitration and the trial to corroborate his version of the incident that had occurred at the security checkpoint. Both Griffin and Scott testified that Barr had displayed the contents of his bag to Mateo as the three men passed the checkpoint. Griffin's and Scott's recollections of the scene were essentially identical to Barr's, except that Griffin did not hear the exchange at the checkpoint between Barr and Mateo. Although Barr, Griffin and Scott allege that all three of them passed the checkpoint together, Mateo and Albert claim to have seen only one other man with Barr.

B. The Grievance Procedure

This case concerns the events that took place after the March 1 incident. Barr alleges, and the jury found, that Local 804 violated its duty fairly to represent Barr in the various steps in the dispute resolution process that was set in motion by the incident at the gate. In order to assess these claims, we relate, in some detail, the actions Local 804 took on Barr's behalf.

Barr's complaints about the union's alleged violation of its duty must be analyzed in the context of the provisions of the collective bargaining agreement between UPS and Local 804. Article 20 of that agreement, in effect at all relevant times between UPS and Local 804, governs the resolution of disputes and provides a step-by-step process for grievances, with binding and final arbitration the last step. When UPS and an employee have a dispute, the complaining party first brings the grievance to the attention of the shop steward (an employee who is also a union officer) on the employee's shift, in what is termed a "Step 1" meeting. In cases which involve employee discipline, the matter first comes to the union's attention when the supervisor in charge notifies the shop steward of the rule violation. If the shop steward, the employee and the supervisor are unable to resolve the problem within one day after the Step 1 meeting, a Step 2 meeting is held. At this step, an officer of the union refers the matter to a division manager or other executive officer of the company, who is to render a decision within five days of the referral. If the grievance is not resolved at the Step 2 stage, the parties submit the matter to binding arbitration.

On the morning of March 1, 1983, immediately after the events at the security gate, UPS Company Manager Steve Ruggerio informed Al Henley, a shop steward on the 9 p.m. to 7 a.m. shift, what had happened at the gate and told him that UPS had a disciplinary claim against Barr. Since Barr had left the plant immediately after the incident, Henley was unable to locate him before he left the plant at 7 a.m., and therefore he telephoned John Brown, a shop steward on the 12:45 p.m. to 9:45 p.m. shift, when he got home. Henley told Brown what little he knew about the incident, and Brown agreed to investigate the complaint and speak to Barr that day.

The parties agree that both Henley and Brown knew how serious the charge against Barr was and that it could result in his discharge; besides having been shop stewards for 15 years, they both knew of a similar case that occurred several months previously, in which...