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June 9, 1975


The opinion of the court was delivered by: BECHTLE


 Plaintiff, Melvin Dorn, has brought this action against his former employer, Meyers Parking System ("Company"), and his collective bargaining representative, Local 596 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Union"). Dorn, a Union member, alleges that he was discharged from employment by the Company in violation of the then-controlling collective bargaining agreement. He further alleges that the Union breached its duty of fair representation by refusing to proceed to arbitration with a grievance that he submitted based on this discharge. Jurisdiction was invoked under § 301 of the Labor Management Relations Act (Taft-Hartley Act), 29 U.S.C. § 185. *fn1"

 The Union has filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. The Union asserts two grounds to support its motion: (1) that absent a showing of bad faith on the part of the Union based on personal or political hostility, which the complaint here does not allege, relief is unavailable; and, (2) that plaintiff must exhaust his internal union remedies before seeking relief in the courts for a breach of the Union's duty of fair representation. For the reasons stated below, the Court disagrees with the Union's contentions and, therefore, will deny its motion to dismiss the complaint.

 When considering a motion to dismiss, the material allegations of the complaint are taken as admitted and the complaint is liberally construed in favor of the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421, 23 L. Ed. 2d 404, 89 S. Ct. 1843 (1969). Applying this standard to the facts set forth in the complaint in the instant case, it is clear that plaintiff has stated a claim sufficient to withstand a motion to dismiss.

 According to the complaint, plaintiff was employed by the Company as an attendant at its parking garage at a Philadelphia hotel from November, 1972, until his dismissal in October, 1973. Plaintiff alleges that he was discharged for an incident which took place at the garage on August 31, 1973. A woman patron of the garage complained that, while she was waiting for her automobile to be retrieved from where it was parked, plaintiff Dorn mistreated her. She claimed that he tried to flirt with her and that he became belligerent when she avoided his advances.

 Although the garage manager discussed the accusation with plaintiff at the time of the incident, no warning was issued to him for any wrongdoing. Plaintiff alleges that the only discipline he received while employed at the garage was one oral reprimand concerning lateness. However, on October 26, 1973, plaintiff was discharged without prior opportunity to reply to any other charges of wrongdoing or improper action. He then submitted a grievance to the Union concerning his dismissal. *fn2"

 Shortly thereafter, a meeting was held concerning this grievance. It was attended by plaintiff, the Business Representatives of the Union and the manager of the garage at which plaintiff had worked, who represented the Company. Plaintiff alleges that this meeting, representing the second step in the contractual grievance procedure, was the first opportunity he had to explain his position to either the Union representatives or the Company. Plaintiff alleges that, after hearing his story, the Union representatives agreed with his position and stated to the Company representative that plaintiff should not have been discharged. The Company disagreed with the Union's determination and refused to reinstate plaintiff to his former position with back pay.

 Plaintiff alleges that, following the Company's refusal to reinstate him, he requested that the Union submit his grievance to arbitration. He further alleges that, despite their agreement that he should not have been discharged, the Union representatives "arbitrarily and capriciously refused to submit the dispute to arbitration" and "processed plaintiff's grievance in a perfunctory manner."

 Plaintiff's underlying claim in this suit is that he was discharged by his employer without just cause, in violation of the controlling collective bargaining agreement. Assuming arguendo that his claim is valid, plaintiff must preliminarily overcome an obstacle erected by the Supreme Court in Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967), in order to obtain relief for this injury. The Court held in Vaca that in order to obtain judicial review of his breach-of-contract claim, "the employee must at least attempt to exhaust exclusive grievance and arbitration procedures established by the bargaining agreement." Id. at 184.

 The Supreme Court noted an exception to this general rule where, as is true in the instant action, the union has sole power under the contract to invoke the higher stages of the grievance procedure, and it is further alleged that "the employee-plaintiff has been prevented from exhausting his contractual remedies by the union's wrongful refusal to process the grievance." Vaca v. Sipes, supra at 185 (original emphasis). A wrongful refusal is indicated by proof that the union breached its duty of fair representation in its handling of the employee's grievance. Id. at 186.

 A union's conduct toward a member of the collective bargaining unit violates its duty of fair representation when it is "arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, supra at 190. The reference in Vaca to "arbitrary" action broadened the scope of union duty and undermined the continuing vitality of cases which required the showing of a bad faith motive or an intent to hostilely discriminate in order to prove a breach of the duty. Duggan v. International Association of Machinists, 510 F.2d 1086, 1088 (9th Cir.), Cert. Denied, 421 U.S 1012, 95 S. Ct. 2417, 44 L. Ed. 2d 680 (1975).

 A union now violates its duty of fair representation, for example, when it either arbitrarily ignores a meritorious grievance or processes the claim in a perfunctory manner. Vaca v. Sipes, supra at 191; Crenshaw v. Allied Chemical Corp., 387 F. Supp. 594, 600 (E.D.Va. 1975). While it may be true "that proof that the union may have acted negligently or exercised poor judgment is not enough to support a claim of unfair representation," Bazarte v. United Transportation Union, 429 F.2d 868, 872 (3d Cir. 1970), plaintiff here has alleged more than simply that. He asserts that the Union failed to investigate his grievance thoroughly and "arbitrarily and capriciously refused to submit the dispute to arbitration without giving reasons therefor." Plaintiff has stated a claim which, if proved at trial, would entitle him to the relief requested.

 The Union alternatively contends that the complaint must be dismissed because plaintiff has failed to allege either that his internal union remedies have been exhausted or that they are inadequate or unavailable. *fn3" Admittedly, the Third Circuit rule requires that a union member exhaust the intra-union remedies available to him, or show an adequate reason for having failed to do so, before a suit charging the union with a breach of its duty of fair representation will be permitted in the courts. This rule furthers the admirable objective of postponing judicial interference in the internal affairs of a labor organization until it has had a prior opportunity to resolve disputes involving its own legitimate concerns. Brady v. ...

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