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BARRETT v. THOROFARE MKTS.

June 22, 1978

MICHAEL BARRETT, et al, Plaintiffs
v.
THOROFARE MARKETS, INC.; and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL 635, Defendants


Gerald J. Weber, C.J.


The opinion of the court was delivered by: WEBER

AND NOW this 22nd day of June, 1978, for the reasons set forth in the accompanying Opinion, the Motions of Defendants Thorofare Markets, Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 635 for Summary Judgment are GRANTED and JUDGMENT is hereby ENTERED for the Defendants and the action is DISMISSED, and

 IT IS FURTHER ORDERED that the Order certifying a Plaintiff class entered November 17, 1977 is RESCINDED and the class is DECERTIFIED.

 GERALD J. WEBER United States District Judge

 WEBER, C.J.

 The facts in this case have, to a large extent, been discussed in our prior opinion and order of November 17, 1977, on the class certification. In discussing the pending summary judgment motions filed by Defendants Thorofare and Teamster Local Union 635, we will add only those facts which have been established by the affidavits filed since that opinion. The severance pay and pension claims will be dealt with separately.

 I. SEVERANCE PAY

 The Plaintiffs claim that Defendant Thorofare is obligated on an oral contract to each of them for severance pay of $100/year of service less the $40/year already paid out. Thorofare argues that it is entitled to summary judgment on this claim for the following reasons:

 (1) The plaintiffs inexcusably failed to exhaust the applicable contractual grievance procedure and

 (2) The plaintiffs have failed to allege facts sufficient to show the formation of a contract with Thorofare on the terms alleged and the uncontradicted evidence clearly shows that no such contract was formed.

 The Union argues, in addition, that the Plaintiffs have failed to allege facts sufficient to support a claim that it breached its duty of fair representation to them.

 The affidavits of Kenneth Keene, Thorofare's Director of Personnel and Labor Relations and of Robert G. Brennan, Secretary-Treasurer and principal officer of Local 635, cover these issues. Brennan states that the four local unions affected by Thorofare's 1974 warehouse lay-offs bargained together but not jointly with Thorofare representative over the impact of the lay-offs. On August 27, 1974, Thorofare agreed with Local 635 to continue its produce warehousing operation on Small Street until March 29, 1975, on the terms of the 1971 collective bargaining agreement. Under this arrangement, 14 warehouse jobs and 6 office jobs were temporarily preserved. All of the named plaintiffs accepted the offer of this continued employment with the understanding that they would eventually receive the same severance pay as would the other Local 635 members to be laid off. About September 25, 1974, Thorofare made an offer of "among other things, severance pay which amounted to $40/year of service, conditioned on acceptance of the proposed agreement by all four labor union" locals whose members would be affected by the lay-offs. On September 26, 1974, the offer was explained to a joint meeting of all four locals. However, the membership of each local voted separately on the proposal. The 20 members of Local 635 who were to continue working were not permitted to vote, but a majority of the others voted to accept the offer, 44 to 19. Even had these 20 employees participated and all voted against the proposal, the result would have been a majority for acceptance. The three other locals rejected the offer. "As a result of the outcome of the election," Brennan settled on behalf of Local 635 by signing the agreement on October 4. He interpreted the International Constitution and the Local's bylaws as giving him the authority to do so, without resubmitting the agreement to the membership. The agreement provided that each laid-off employee would receive $40 per year of service with Thorofare. No grievance was ever filed as to the amount of the severance pay nor were any steps taken to invoke the intra-union remedies available to plaintiffs.

 Kenneth Keene's affidavit is consistent with Brennan's except for one possibly significant difference. In paragraphs 8 and 9, the following statements appear:

 
"8. A meeting of the membership of the four Locals was allegedly held on or about September 26, 1974. I was not present at this meeting, nor was any representative of Thorofare. The representative of the four Locals later informed me ...

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