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JOHNSON v. AAA TRUCKING CO.

April 28, 1978

JOSEPH L. JOHNSON
v.
AAA TRUCKING COMPANY and GENERAL TEAMSTERS, CHAUFFEURS, YARDMEN AND HELPERS, LOCAL 470



The opinion of the court was delivered by: FOGEL

 Before the Court is a Motion to Amend the Amended Complaint, and Motions for Summary Judgment on behalf of the two defendants, AAA Trucking Company (AAA), and International Brotherhood of Teamsters, Local 470 (Local 470). For the reasons stated below, the motion to amend, and the motions of AAA and Local 470 for summary judgment on the claim of breach of duty of fair representation are granted; the motion of AAA for summary judgment on the claim of discrimination is denied.

 I

 The underlying and uncontested facts, as detailed in the motions of the defendants and the response of the plaintiff, are as follows:

 On the morning of February 7, 1975, Joseph L. Johnson (Johnson), was employed as a yardman by defendant AAA. At approximately 7:00 a.m. Johnson was instructed to perform dockman duties by his supervisor, Martin Kennelly. Johnson refused to follow the instructions; he stated that since there were dockmen on "layoff", it would be improper under the collective bargaining agreement for him -- a yardman -- to do dockman work. Johnson was instructed to "punch-out" his time card and was told that his actions were considered as a "voluntary quit."

 Instead of punching his time card and leaving the premises, Johnson waited until 8:00 a.m. at which time he explained the situation to Pete DeSalvo, a shop steward. Thomas McCaffrey, business agent for Local 470, and Eugene Bonacci, Vice President of AAA, were present at the trucking company to discuss the discharge of another employee. They considered the problem of Johnson's "voluntary quit" and AAA refused to reconsider its position.

 McCaffrey instructed Johnson to "punch-out" and go home. Johnson was told that the union would file a grievance to protest the "voluntary quit."

 In accordance with the collective bargaining agreement entered into between AAA and Local 470 on July 1, 1973, the grievance was heard by the Joint Local Committee (JLC), at Motor Transport Labor Relations on February 12, 1975.

 At this hearing, Johnson, DeSalvo and McCaffrey presented evidence on behalf of Johnson. When the JLC was unable to reach a majority decision, the case was transferred to the Joint Area Committee (JAC), in accordance with the contract.

 After the JLC hearing, Johnson, at McCaffrey's request, met with McCaffrey at the union office to discuss the case. Johnson did not tell McCaffrey that there were witnesses or other evidence which should have been brought to the attention of the JLC. Deposition of Johnson, June 6, 1977, pages 86-93.

 On February 25, 1975, a hearing was held before the JAC, which, like the JLC, is composed of an equal number of employer and union members. The evidence presented on behalf of Johnson by McCaffrey, DeSalvo and Johnson tracked the evidence presented to the JLC. The JAC met in executive session after hearing the testimony and held that:

 
1) The Employer did not discriminate against Johnson, 2) Johnson's actions of February 7, 1975, constituted a willful voluntary quit, 3) The Union's grievance is denied.

 Exhibit A to Local 470's Answer to the Complaint.

 II

 The Order pinpointed three parts of the original complaint which needed clarification: a) proper identity of the union defendant; b) clarification of plaintiff's allegation of Title VII violations, i.e. whether by Local 470, AAA, or both; and c) clarification as to whether plaintiff received a "right-to-sue" letter with respect to his Title VII cause of action against Local 470, and, if so, the date of that letter.

 An amended complaint was filed by plaintiff on February 18, 1977. Paragraph one answered point (a) above by properly naming Local 470. Paragraph two appears to be in response to point (c) above because it states that the Equal Employment Opportunity Commission (EEOC), issued a "Notice of Right-to-Sue" letter on September 10, 1975. The amended complaint also states: ". . . the letter stating in essence that the Commission had determined that there was no reasonable cause to believe that a violation of Title VIII of the Civil Rights Act of 1964. . . ." had occurred.

 Attached to the original complaint was a copy of another "Notice of Right-to-Sue" issued July 28, 1976, in which the EEOC found probable cause to believe that the charge against AAA was true. Therefore, although not clearly stated in either complaint, the September 10, 1975 notice is presumably the result of a charge filed against Local 470. It is clear, therefore, that the plaintiff was pleading a Title VII claim against AAA and not against Local 470.

 Paragraphs three, four and five of the amended complaint are in response to point (b) above. Plaintiff alleged that the cause of action against Local 470 was based solely on Section 301 of the LMRA because of Local 470's breach of its duty of fair representation.

 Instead of clarifying matters, the amended complaint further confused the case because it failed to incorporate by reference the paragraphs of the original complaint. Standing by itself, the amended complaint fails to state a claim upon which relief can be granted.

 III

 Defendant AAA bases its motion for summary judgment in part on the fact that the amended complaint abandons all allegations against AAA. However, AAA also presses other contentions which are discussed infra at VII.

 Local 470's motion for summary judgment does not raise the deficiency of the amended complaint.

 Plaintiff did not explain his obvious error. The motion to amend states:

 
3) It was and is the intention of plaintiff that all provisions [of the original complaint] not so affected shall remain as issues and items to be considered by this court.

 F.R.Civ.P. 15(a) states that "leave [to amend] shall be freely given when justice so requires." The plaintiff should be afforded the opportunity to test his claim on the merits in the absence of any apparent or declared reasons such as: 1) undue delay, bad faith or dilatory motive; 2) repeated failure to cure deficiencies; 3) undue prejudice to the opposing party; or 4) futility of amendment. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962).

 Applying the facts and circumstances of the present case to the standard set forth by the Supreme Court, we find no evidence of bad faith or dilatory motive on the part of the plaintiff. Although the delay in filing the motion to amend has delayed the eventual trial on the merits by approximately five months, that factor, alone, is not a sufficient reason for denying leave to amend in the absence of prejudice or bad faith. Farkas v. Texas ...


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