Smith v. Drug, Chem. & Aff. Warehouse Emp. Loc. 815

• Decision Date: 19 August 1996
• Docket Number: No. CV 93-5729 (MLO).,CV 93-5729 (MLO).
• Citation: 943 F.Supp. 224
• Parties: Ella SMITH, Plaintiff, v. DRUG, CHEMICAL, COSMETIC, PLASTICS AND AFFILIATED INDUSTRIES WAREHOUSE EMPLOYEES LOCAL 815, affiliated with the International Brotherhood of Teamsters, and Del Laboratories, Inc., Defendants.
• Court: U.S. District Court — Eastern District of New York

Page 224

943 F.Supp. 224

Ella SMITH, Plaintiff, v. DRUG, CHEMICAL, COSMETIC, PLASTICS AND AFFILIATED INDUSTRIES WAREHOUSE EMPLOYEES LOCAL 815, affiliated with the International Brotherhood of Teamsters, and Del Laboratories, Inc., Defendants.

No. CV 93-5729 (MLO).

United States District Court, E.D. New York.

August 19, 1996.

COPYRIGHT MATERIAL OMITTED

Eric Dubinsky, Carle Place, New York, for Plaintiff.

Henry I. Hamburger, Leonia, New Jersey, for Drug, Chemical, Cosmetic, Plastics and Affiliated Industries Warehouse Employees Local 815.

Robert M. Ziskin, Commack, New York, for Del Laboratories, Inc.

OPINION AND ORDER

ORENSTEIN, United States Magistrate Judge:

Plaintiff commenced this hybrid action pursuant to Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, alleging that (1) her employer, Del Laboratories ("Del"), discharged her in violation of an existing collective bargaining agreement, and (2) Drug, Chemical, Cosmetic, Plastics and Affiliated Industries Warehouse Employees Local 815 (the "Union"), her collective bargaining representative, breached its duty of fair representation in connection with the termination. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331. Venue for this action lies within the Eastern District of New York pursuant to 28 U.S.C. § 1391(b) and (c), as the alleged events in question transpired principally at Del Laboratories, Inc., located in Suffolk County, New York.

Having considered the evidence presented by the parties at trial, the Court makes the following Findings of Fact and Conclusions of Law, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure:

FINDINGS OF FACT¹

1. Del is an employer within the meaning of Section 2(2) of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 152(2), and is engaged in an industry which affects commerce within the meaning of Section 2(6) and (7) of the LMRA, 29 U.S.C. § 152(6) and (7). Del is a corporation with its principal place of business in New York State. (Compl. ¶ 4.)

2. The Union is a labor organization within the meaning of § 2 of the National Labor Relations Act, 29 U.S.C. § 152, and Section 301(b) of the LMRA, 29 U.S.C. § 185(b).

3. Plaintiff Ella Smith began employment with Del in 1984 as an assembler at Del's plant located in Farmingdale, New York. Tr. 12 (1/10/96) (testimony of Ella Smith).² Among her duties at Del were boxing certain products, capping bottles, and other various tasks associated with work on an assembly line. Id. Plaintiff also frequently served as a line leader. Id. 14; Pl.'s Dep. at 5. Line leaders are responsible for, inter alia, positioning the workers on the line, instructing them as to the tasks they will be performing on a given shift, and monitoring the overall progress of the line. Tr. 84 (1/24/96) (testimony of Anne White).

4. During Plaintiff's tenure at Del, the Union served as her exclusive collective bargaining representative. Tr. 239 (1/25/96) (testimony of Larry Plotnick). The parties stipulated that Plaintiff was a member in good standing of the Union at the time of her termination. Tr. 39 (1/10/96). The Union's duties included, inter alia, negotiating contracts with Del management on behalf of the employees and "handling" any grievances that might arise between an employee and the company. Id. Larry Plotnick, the Union's President for the past twenty-three to twenty-five years, performed the foregoing duties on behalf of the Union during Plaintiff's employment. Id. On April 14, 1992 the Union and Del executed a collective bargaining agreement (the "CBA"), effective January 1, 1992, which remained in effect until December 31, 1994. See Pl.'s Ex. 1.

5. Plaintiff was subjected to numerous disciplinary actions during her tenure at Del. On August 1, 1985, Plaintiff received her first warning notice for returning to her work station late on two separate occasions. Del's Ex. 4. The notice commented that Plaintiff "was spoken to several times in the past about her tardiness." Id. On February 19, 1988, Plaintiff received a two-and one-half day suspension for "insubordination"; specifically, Plaintiff left her production line for approximately seventeen minutes. When questioned about her absence upon her return to the line, Plaintiff yelled at the production manager, "causing a major interruption [sic] to the [three] lines running in the area." Id. On October 21, 1988, Del issued Plaintiff a warning for taking excessive breaks from her line. When questioned by her line leader, Plaintiff threatened "to throw a bottle of nail polish at her." Id. A subsequent warning notice on November 1, 1988, whereby the line leader was forced to page Plaintiff to return to her line after a twenty-five minute absence, resulted in a one-day suspension, in addition to the comment that "[Plaintiff] comes [and] goes as she pleases." Id.

Del served Plaintiff with a warning notice on February 26, 1990, for taking an excessive amount of time to use the restroom, causing her line to be delayed for fifteen minutes. On June 14, 1990, Plaintiff received a warning notice for leaving her assigned line without authorization and "disturbing girls" on another line that was operating simultaneously. Id. Del issued Plaintiff yet another warning for essentially the same infraction on August 2, 1990. Id.

On October 7, 1991, Del suspended Plaintiff pending a meeting scheduled for October 15, 1991, for, among other things, insubordination and poor job performance. The October 15, 1991, meeting was attended by Plaintiff; Angela Hubbard, one of the shop stewards; Richard Smith, Del's production manager; Larry Plotnick; and Charles Schneck, Del's director of human resources. Id. The disposition of the disciplinary meeting, memorialized in a writing that was signed by Plaintiff, concluded that "[Plaintiff] willfully disobeyed company practices and caused a quality problem which resulted in the rework of 4500 pieces." Id. While Del's "initial view was for termination," the company agreed, at the behest of Hubbard, to suspend Plaintiff for one week without pay and place her on probation for six months. Id.

Approximately four-and one-half months prior to her termination, Plaintiff received what was to be her final warning notice. Del's Ex. 3. In the notice, dated December 30, 1992, plant manager Richard Smith recommended that, in light of her past violations, Plaintiff be terminated for insubordination and for abandoning the assembly line at which she was scheduled to work. On January 23, 1993, Charles Schneck met with Larry Plotnick to discuss the notice. Tr. 191 (1/24/96) (testimony of Charles Schneck); Tr. 65 (1/10/96) (testimony of Ella Smith). Schneck testified that Plaintiff should have been terminated as a result of this latest incident, but that Plotnick had convinced him to grant Plaintiff a reprieve due to Del's delay in processing the disciplinary form. Tr. 191 (1/24/96) (testimony of Charles Schneck).³ Pursuant to his meeting with Plotnick, Schneck sent a memorandum to Plaintiff which stated in pertinent part as follows:

[S]hould you at any time in the future display insubordination or walk off the line without permission or create any other serious disturbance on the work floor, you will be terminated on the spot because of your previous work history.

Del's Ex. 3. Plaintiff testified that, subsequent to the incident, Plotnick advised her that she would not be terminated for "trivial" things, such as "going to the bathroom or coming back to the line late." Tr. 65 (1/10/96) (testimony of Ella Smith). The Court finds, however, that, taking Plaintiff's testimony in this regard to be true, Plotnick's oral statement to her is not inconsistent necessarily with the January 25, 1993, warning memorandum.

THE EVENTS OF JUNE 3, 1993

6. On June 3, 1993, Plaintiff worked as a line leader on the regular shift at Del, which ran from 7:30 a.m. to 4:30 p.m. During this shift, she was also in charge of running the labeling machine on the line. Tr. 13-14 (1/10/96) (testimony of Ella Smith). Plaintiff was scheduled to work as a regular assembler on the overtime shift that night on a different assembly line, to wit: line 10. Id. 14.

7. While the overtime shift ran until 9:00 p.m., there was no fixed time that the line would in fact commence. Two warning bells were sounded at 4:23 p.m. and 4:25 p.m. to give the assembly workers notice that the regular shift was about to end, and to provide them with an opportunity to clean up themselves and their work areas. Id. 15. The overtime shift, though scheduled to start promptly at 4:30 p.m., would sometimes be delayed anywhere from five to fifteen minutes while workers arrived from different departments to which they had been assigned on the regular shift. Id. 14-15; Tr. 103 (1/24/96) (testimony of Anne White).

8. Particular spots on the assembly line are often filled on a first-come basis. Nevertheless, Plaintiff conceded that the line leader retains ultimate authority to move an assembler to any position the leader deems appropriate or necessary. In short, an assembler has no entitlement to any particular position on any particular line. Id. 82. Moreover, no evidence was presented at trial suggesting that an assembly worker could situate herself wherever she pleased or perform whatever work she pleased prior to the formal commencement of the line.

9. Plaintiff testified that when the 4:23 p.m. warning bell rang on June 3, 1993, she immediately left her line and went to line 10, arriving there by 4:24 p.m. Tr. 15 (1/10/96) (testimony of Ella Smith). According to Plaintiff, four assemblers were already seated at various spots on the line when she arrived: Jay Shaw, Veronica Angus, Lorine Conley, and Carmen Leon; Anne White, a Union member who was to serve as line leader that night, had not yet arrived. Id. 16, 77. Plaintiff, who desired to perform the same work she had the night before, i.e., hooking products on the clip strip,⁴...