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MORRIS v. GASPERO

July 28, 1981

Robert R. MORRIS
v.
Samuel J. GASPERO, Ind., and Samuel J. Gaspero, Int. Org. and Harry M. Stevens, Inc. and Local 276 AFL-CIO and John Gavarrone, Shop Steward and the Hotel and Restaurant Employees and Bartenders International Union



The opinion of the court was delivered by: BRODERICK

MEMORANDUM

Defendants have moved for summary judgment on the ground that plaintiff's claims are barred as a matter of law because of a settlement agreement. Plaintiff, Robert R. Morris, brought this action pursuant to the Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 141 et seq. and § 159(a), against: the Hotel and Restaurant Employees and Bartenders International Union (International Union); Local 267 of the International Union (Local 267); Samuel Gaspero, individually and as President of Local 267; John Gavarrone, Shop Steward of Local 267; and Harry M. Stevens, Inc., the plaintiff's employer (Stevens). Stevens is a restauranteur and concessionaire with operations in ballparks, racetracks, arenas and other facilities in over fifteen states and Puerto Rico. Included among its facilities is its operation at Brandywine Raceway, Talleyville, Wilmington, Delaware. Plaintiff was employed by Stevens as a bartender at Brandywine Raceway since 1970. Local 267 is the duly authorized collective bargaining representative of Stevens' employees at Brandywine Raceway. On behalf of Local 267 and other local unions which represent employees of Stevens at its various operations, the International Union has entered into a succession of collective bargaining agreements with Stevens which govern the wages, terms and other conditions of employment of Stevens' employees.

 Plaintiff alleges that he was improperly denied assignment to a particular bartender station to which he was entitled by reason of seniority and that the Union defendants breached their duty of fair representation in their handling of his grievance concerning his entitlement to the bartender station.

 The following facts are uncontested: On July 29, 1977, when plaintiff reported for work as a Stevens bartender at Brandywine Raceway, he was in the process of recovering from a broken leg and his mobility was impaired. The Stevens manager assigned him to tend bar in the "Rodney Room" rather than the more demanding station of "floater" bartender to which he had previously been assigned. On August 15, 1977, plaintiff filed a request with Local 267 to commence a grievance procedure concerning his work assignment, contending that pursuant to the terms of the Master National Agreement between Stevens and the International Union, he was entitled to return to his former position because of his seniority on the job. On August 17, 1977, Local 267 representatives met with the Stevens manager to determine whether plaintiff had been recalled for work. At that meeting Stevens and Local 267 determined that plaintiff had been recalled, and that he had properly been assigned to the Rodney Room because seniority was not a factor in determining the station to which a bartender is assigned.

 On October 11, 1977, plaintiff filed unfair labor practice charges with the National Labor Relations Board (NLRB) in which he alleged that Stevens had unlawfully refused to reassign him to his former station and that Local 267 had unlawfully refused to process his grievance concerning his reinstatement. The complaint in this action, which was filed on April 14, 1978, presents the identical claims which were prosecuted before the NLRB.

 
1. Robert Morris hereby withdraws without prejudice NLRB charge No. 4-CA-8967 and charge No. 4-CB-3265.
 
2. Robert Morris hereby discontinues action now pending in United States District Court entitled "Robert Morris vs. Gaspero, et al., 78 Civ-1429." (emphasis supplied)
 
3. Robert Morris hereby withdraws intraunion charges now pending within Hotel & Restaurant Employees and Bartenders International Union against Sam Gaspero.
 
4. Harry M. Stevens, Inc. hereby reassigns Robert Morris to floater bartender position at Brandywine Raceway currently held by Joe Valentino.
 
5. Union agrees that if the company reassigns Robert Morris from floater bartender position the union will proceed to arbitration any grievance filed by Robert Morris concerning said reassignment.
 
6. Harry M. Stevens, Inc. hereby pays Robert Morris the sum of $ 1,000.00 in full and complete settlement of any and all claims which said Robert Morris had or may have had arising out of case nos. 4-CA-8967, 4-CB-3265, USDC case No. 78 Civ. 1429 and his failure to be reassigned to floater bartender position in July 1977.
 
7. By the execution of this agreement the company nor the union admits that they have violated the NLRA, the collective bargaining agreement or any provision of law.
 
8. As set forth in the collective bargaining agreement, the company agrees that it will not reassign or otherwise discriminate against Morris because ...

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