management's ability to direct the activities of the workforce effectively.
Whenever a white employee was involved in an altercation with a supervisor, the incident was of a much less serious nature than this. No incident involved the kind of physical violence inflicted upon a supervisor that is involved here. In the incident between Senigo and Delowery, the only other altercation between an employee and a supervisor where blows were exchanged, the supervisor was the aggressor, and was not injured.
In addition to the specific incidents introduced at trial, plaintiff has argued that there is a significant statistical disparity between the discipline imposed on black and white employees. This argument is rejected for a number of reasons. First, statistical evidence was never offered at trial; hence, defendant was deprived of the right to cross-examine plaintiff regarding plaintiff's methodology, conclusions, or the propriety of the use of the binomial model that plaintiff has used. Moreover, there is no evidence that the cases of termination used in the analysis are sufficiently comparable to the present case to justify statistical comparison for purposes of proving disparate treatment. Finally, plaintiff has failed to use a sample size large enough to be statistically significant. Because plaintiff has failed to introduce any evidence that black employees were disciplined more harshly than white employees who fought with supervisors, plaintiff has failed to establish a prima facie case.
Even if plaintiff makes out a prima facie case, defendant's burden is not one of proof but rather of coming forward with evidence that the action was taken for a legitimate non-discriminatory reason. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. U.S. Postal Service Board of Governors v. Aikens, 453 U.S. 902, 69 L. Ed. 2d 989, 101 S. Ct. 3135 (1983).
Viewing the record as a whole, it is clear that plaintiff has not met his burden. Budd was able to articulate a legitimate non-discriminatory reason for plaintiff's discharge, that of maintaining management's ability to direct the workforce effectively. It seems to have been the company's policy to discipline employees who beat and injured their supervisors more harshly than employees who fought with supervisors and lost. Supervisor Mulqueeney's testimony that he remained patient with plaintiff at all times and was not provocative is not as credible as plaintiff's testimony that he was unhelpful and abrupt. But the fact that Mulqueeney may have provoked plaintiff when he was confused and uncertain about his new assignment cannot excuse plaintiff's behavior. Even if the incident occurred exactly as plaintiff described it, the company had the right to discharge the plaintiff. Although Supervisor Mulqueeney's treatment of one newly assigned to his group cannot be characterized as exemplary, and Budd might do well to consider instructing its supervisors in techniques of leadership and orientation of employees in new positions, the Budd Company nevertheless has a legitimate interest in protecting management from acts of violence.
Perhaps plaintiff would not have been discharged if he had not injured Mulqueeney or Mulqueeney had injured him. But Hagans gained the advantage in the fight and stopped hitting Mulqueeney only when urged by others to desist; he must suffer the consequences. One may question the wisdom of a policy that treated employees who fought with supervisors and injured them more harshly than those who were injured by the supervisors, but there was no evidence to show that such a policy was motivated by racial discrimination. Therefore, plaintiff cannot prevail on his claim under Title VII.
The elements of a cause of action under 42 U.S.C. § 1981 are substantially identical to those of Title VII. See Goodman v. Lukens Steel Co., 580 F. Supp. at 1121 (E.D. Pa. 1984); Pouncy v. Prudential Insurance Co. of America, 668 F.2d 795, 797 n.3 (5th Cir. 1982); Becton v. Detroit Terminal, 687 F.2d 140, 141 (6th Cir. 1982). Plaintiff's claim under 42 U.S.C. § 1981 also fails for lack of proof of racial discrimination in the discipline imposed on the plaintiff.
Plaintiff also alleges that his union, UAW Local 813, breached its duty of fair representation under Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185. Generally, an employee may not bring an action under § 301 of the Labor Management Relations Act where the Collective Bargaining Agreement contains a provision requiring grievance and arbitration of disputes arising under the agreement. However, an employee may bring an action against his union and/or employer if the employee can prove the union breached its duty of fair representation in handling the employee's grievance. Vaca v. Sipes, 386 U.S. 171, 186, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967).
"[A] breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith . . . a union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory manner." Vaca, 386 U.S. at 190-191. While it is not always clear when a union has acted in breach of its duty of fair representation, "mere ineptitude or negligence in the presentation of a grievance by a union has almost uniformly been rejected as the type of conduct intended to be included within the term 'perfunctory. '" Findley v. Jones Motor Freight, Etc., 639 F.2d 953, 960 n.2 (3d Cir. 1981). "What is required is a showing of actual bad faith or arbitrary conduct." Riley v. Letter Carriers Local No. 380, 668 F.2d 224, 228 (3d Cir. 1981). The union breach must have "seriously undermined the integrity of the arbitral process." Hines v. Anchor Motor Freight, 424 U.S. 554, 567, 47 L. Ed. 2d 231, 96 S. Ct. 1048 (1967). Not only must the Union's representation not have been within the range of acceptable performance, but the deficient performance must have affected the arbitrator's decision in some manner. Findley, 639 F.2d at 958.
Plaintiff asserts that the union breached its duty of fair representation in three respects: (1) it failed to call James Werts as a witness at the DCB hearing; (2) it did not present evidence of Supervisor Mulqueeney's reputation for having an unpleasant disposition; and (3) it failed to allege that plaintiff's discharge was racially discriminatory. Plaintiff has not demonstrated that these inactions constituted inadequate representation or that they affected the outcome of the arbitration in any material manner.
Failure to offer a witness might establish inadequate representation in some circumstances. Here, the failure to call James Werts at the company's DCB hearing did not damage plaintiff's presentation. Even if the Union had attempted to call Werts as a witness, it is unlikely that he would have been permitted to testify, because Budd has not allowed the Union to call third party witnesses to testify at DCB hearings held at the Hunting Park facility. Even if Werts had witnessed the entire incident and his testimony that Mulqueeney had grabbed plaintiff's shirt had been credited, it is unlikely the outcome of the DCB hearing would have been different. Plaintiff would have been discharged whether or not the fight had been provoked by Mulqueeney because of the severity of the injuries he inflicted upon Mulqueeney. Werts did testify at the arbitration hearing and the arbitrator still found for the company. Similarly, the Union's failure to present evidence of Mulqueeney's nasty disposition did not affect the outcome of the DCB hearing or the arbitration.
Plaintiff is complaining now that the Union did not allege racial discrimination as a basis for the discharge; however, plaintiff barely referred to race in discussing his defense with union officials. Plaintiff did not claim his discharge was on racial grounds until after the arbitration proceeding had been concluded by an adverse decision. Even if plaintiff had raised such a claim, it was within the union's range of discretion to reject the claim if it determined that it was groundless. Tate v. Weyerhaeuser, 723 F.2d 598 (8th Cir. 1983). The union was justified in determining that a claim of racial discrimination was not warranted. Plaintiff has not sustained his burden of proving that the union's failure to raise the issue of discrimination affected the outcome of the arbitration.
Finally, plaintiff has failed to produce evidence that the union displayed animosity towards him. Palumbo and the union did an effective job of handling plaintiff's grievance under the circumstances. The union did not breach its duty of fair representation.
In reaching these conclusions, the arbitrator's decision was admitted into evidence and accorded some weight, but the arbitrator's findings have not been deemed conclusive. The Supreme Court has stated, "the federal policy favoring arbitration of labor disputes and the federal policy against discriminatory employment practices can best be accommodated by permitting an employee to pursue fully both his remedy under the grievance arbitration clause of a Collective Bargaining Agreement and his cause of action under Title VII. . . . The arbitral decision may be admitted as evidence and accorded such weight as the court deems appropriate. Alexander v. Gardner-Denver Company, 415 U.S. 36, 59-60, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974). It is within the court's discretion to determine the weight to be accorded an arbitral decision. "Where an arbitral determination gives full consideration to an employee's Title VII rights, a court may properly accord it great weight." Id. at 60 n.21.
Here, the issue of racial discrimination was never raised at the arbitration so the decision of the arbitrator could not be given any weight on that issue. The court has independently reviewed the facts and conclusions reached by the arbitrator and considered plaintiff's claims de novo. Because plaintiff has been unable to prove racial discrimination by the company or a breach of the duty of fair representation by the union, defendants are entitled to judgment in their favor.
CONCLUSIONS OF LAW
1. This court has jurisdiction over the parties and subject matter.
2. Budd is an employer within the meaning of 42 U.S.C. § 2000e(b) and 29 U.S.C. § 185(b).
3. The Union is a labor organization within the meaning of 42 U.S.C. § 2000e(d) and 29 U.S.C. § 185(b).
4. Plaintiff has failed to prove a violation of Title VII.
5. Budd has not violated 42 U.S.C. § 1981.
6. The conduct of the Union in the instant case was adequate and within the realm of acceptable performance at the mini-hearing, the DCB hearing and the arbitration. Findley v. Jones Motor Freight, 639 F.2d 953 (3d Cir. 1981).
7. The Union processed plaintiff's grievance fully and fairly without offering evidence of race discrimination or other conduct of his supervisor. Plaintiff was discharged for beating his supervisor which is a valid, non-discriminatory reason. See Coleman v. General Motors Corp., 667 F.2d 704 (8th Cir. 1981).
8. Even if certain actions of the Union were arguably deficient, there is no reason to believe that these actions tainted the decision or affected the outcome of the arbitration. Bazarte v. United Transportation Union, 429 F.2d 868 (3d Cir. 1970).
9. The Union undertook and pursued plaintiff's grievance in good faith and the Union did not breach its duty of fair representation.
10. Plaintiff has failed to establish either that Budd breached the Collective Bargaining Agreement or the Union breached its duty of fair representation and has therefore not proven a § 301 violation.
11. Judgment shall be entered in favor of Budd and the Union.
AND NOW, this 29th day of September, 1984, judgment is hereby entered in favor of both defendants and against plaintiff on all counts.
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