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GENERAL TEAMSTERS, LOCAL UNION NO. 249 v. CUSTOM D

July 20, 1978

GENERAL TEAMSTERS, CHAUFFEURS & HELPERS, LOCAL UNION NO. 249, an unincorporated association, affiliated with the International Brotherhood of Teamsters, Chauffeurs Warehousemen & Helpers of America, by THOMAS L. FAGAN, Trustee Ad Litem, Plaintiff
v.
CUSTOM DELIVERIES, INC., a corporation, Defendant



The opinion of the court was delivered by: SNYDER

 This matter involves a dispute over whether the discharge of two employees of the Defendant, members of General Teamsters, Chauffers & Helpers, Local Union No. 249 (Union), were subject to binding arbitration under the terms of the labor contract. The specific dispute involved the discharge of Angelo Graziano and Gilbert Recker. The Defendant discharged them both as unsatisfactory probationers, upon the theory that Article 41 of the contract permitted this, since the Company contended the men did not have 30 work days of service with the Defendant. The Plaintiff contended that the men had been employed for in excess of 30 calendar days, and thus were not subject to discharge except for just cause. Finding that the discharges were subject to arbitration, it will be so ordered.

 I.

 Custom Deliveries, Inc. (Company) began operations on January 24, 1977 for the purpose of delivering Chrysler parts in Western Pennsylvania, Eastern Ohio, and Northwestern Virginia. Angelo Graziano was hired on January 24th and Gilbert Recker was hired on January 25th, 1977, and the contracts (the National Master Freight Agreement and the Teamsters Joint Council No. 40 Freight Division Over-the-Road Supplemental Agreement) were signed by the Company and the Union on January 31, 1977. On February 24, 1977, the Company terminated Graziano's employment, and on February 28th, Recker was terminated. *fn1" On February 28, 1977, a protest meeting was held by Union representatives with the Company to discuss the reason for these discharges. The Company took the position that the men were hired only on a trial basis and could be fired without cause. The Union denied there was any just cause for the firings. On March 1, 1977, the Union called a strike under a misapprehension that the contract had not as yet been signed by it. *fn2" On March 2nd, the Union's attorney was shown the signed contract containing a no strike clause and Article 41, which stated:

 
"A new employee shall work under the provisions of this agreement but shall be employed only on a 30 day trial basis, during which period he may be discharged without further recourse, provided, however, that the employer may not discharge or discipline for the purpose of evading this agreement or discriminating against union members."

 The Union pointed to Article 47, which provided:

 On the advice of counsel, the men went back to work immediately. On April 5, 1977, Graziano and Recker filed individual grievances, stating:

 
"I was unjustly discharged by Custom Dely. Since that time several meetings have been held and the company said they would submit the case to a committee. To this date nothing has been arranged."

 A considerable delay followed, apparently as the result of discussions between counsel for the Union and the Company. Then, on November 17, 1977, the Union commenced suit in the United States District Court for the Western District of Pennsylvania at Civil Action 77-1324. In discussing the history of that action, Samuel Pasquarelli, counsel for the Union, testified at the Hearing on the Motion for Temporary Injunction held before this Court on May 8, 1978, as follows (Tr. p. 44):

 
"That lawsuit was settled, Your Honor, after the complaint was served. I received a call from Mr. David Knowles, who asked me what the problem was, and I related to him the fact that the company was evidently refusing to submit this matter through the grievance procedure, and Mr. Knowles and I agreed that he would write a letter to me indicating that the company would be willing to submit this matter through the grievance procedure, if I would have that lawsuit dismissed. It was set for the hearing before Judge Knox, but we then had it dismissed because I received a letter from Mr. Knowles indicating that the company would submit to the grievance procedure."

 The Knowles letter of November 30, 1977, read as follows (Plf's Exhibit 15):

 
"Dear Mr. Pasquarelli:
 
As I indicated in our telephone conversation of November 28, 1977, Custom Deliveries, Inc., Oakdale, Pennsylvania, will comply with the grievance machinery set forth in the current Teamsters Joint Council No. 40 Freight Division Over-the-Road Supplemental Agreement.
 
With respect to the discharge of Gilbert Recker and Angelo Graziano and any grievances related thereto, Custom Deliveries, Inc. reserves the right to raise any and all procedural and substantive defenses to those grievances including, but not limited to, the untimeliness of the original grievances. Custom Deliveries, Inc. will not, however, raise as a defense the timeliness or untimeliness of the union's appeal of the matter to the Western Pennsylvania Joint Area Committee.
 
Sincerely yours,
 
/s/ David R. Knowles
 
David R. Knowles, Esq.
 
DRK:aj,
 
cc: M.J.Kelly
 
P. Dietrich"

 There followed, then, the following colloquy between the Court and Mr. ...


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