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COSTELLO v. UPS

November 7, 1984

CLIFFORD T. COSTELLO
v.
UNITED PARCEL SERVICE, INC.



The opinion of the court was delivered by: FULLAM

FULLAM, J.

 MEMORANDUM AND ORDER

 This action was originally filed in the Philadelphia Court of Common Pleas, and removed to this court on the basis of defendant's assertions of both diversity and federal question jurisdiction. Plaintiff concedes that the removal was proper under diversity jurisdiction, but does not concede that his claims arise under federal law. The defendant has filed a Motion for Summary Judgment, to which the plaintiff has filed a response.

 Plaintiff was employed by the defendant for some 13 years until, in September 1983, he was discharged. The employment relationship was governed by a collective bargaining agreement between the employer-defendant and Local 623 of the Teamsters Union; the collective bargaining agreement included a detailed grievance mechanism.

 Pursuant to the collective bargaining agreement, the union filed a grievance protesting plaintiff's discharge, and pursued the claim through arbitration, but on October 4, 1983, the grievance was finally denied. Almost one year later, in September 1984, plaintiff filed the present lawsuit, in which he claims that the stated reason for the discharge (dishonesty, in causing personal parcels to be delivered without payment, and in charging a customer's account with his personal shipping costs, without the customer's consent) was a mere pretext, and that the real reason for the discharge was retaliation against plaintiff for filing a worker's compensation claim. Plaintiff alleges that the employer not only wished to retaliate against plaintiff for filing a claim, but also wished to escape anticipated liability for plaintiff's prolonged illness and/or disability. Count I of plaintiff's Complaint purports to allege the state-law tort of "wrongful discharge" in violation of public policy. Count II asserts that plaintiff had "an implied contract of continued long-term employment," that the discharge decision was made in bad faith, and that the discharge "constituted an unlawful breach by defendant of the contract of employment between defendant and plaintiff."

 While plaintiff's counsel has struggled valiantly to find an escape, I am compelled to conclude that settled principles of federal labor law mandate dismissal of this action. Generally speaking, § 301 of the National Labor Relations Act, 29 U.S.C. § 185, provides the exclusive remedy for violations of collective bargaining agreements. No employee protected by a collective bargaining agreement can sue the employer except after pursuing his grievance remedies under the contract, and either obtaining successful judicial review of the arbitration award, or establishing that his right of fair representation was violated. In the present case, there is no contention that plaintiff was not fairly and properly represented in the grievance and arbitration proceedings; moreover, any challenge to the arbitration award was required to be filed within six months after October 4, 1983, when the award was rendered.

 There are, it is true, a few narrow exceptions to the general doctrine of federal preemption. For example, covered employees are not limited to § 301 litigation to obtain relief from racial discrimination, Alexander v. Gardner-Denver, 415 U.S. 36, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974). And an employee is not precluded from litigating various independent torts under state law. See, e.g., Linn v. U.S. Plant Guard Workers, 383 U.S. 53, 15 L. Ed. 2d 582, 86 S. Ct. 657 (1966) (defamation); Automobile Workers v. Russell, 356 U.S. 634, 78 S. Ct. 932, 2 L. Ed. 2d 1030 (1958) (black-listing); Farmer v. United Brotherhood of Carpenters and Joiners, 430 U.S. 290, 51 L. Ed. 2d 338, 97 S. Ct. 1056 (1977) (intentional infliction of emotional distress).

 When, however, the harm sought to be addressed is that stemming from discharge or other disciplinary action, there are few, if any, exceptions to the preemption principle. The case which is perhaps most helpful to plaintiff is Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367 (9th Cir. 1984). In that case, plaintiff had been employed as a truck driver delivering milk. He observed that a load of milk he was scheduled to deliver had spoiled. Allegedly, he was told to deliver the milk anyway, but instead complained to the local health authorities--an act of "whistle-blowing" for which, allegedly, he was fired. He unsuccessfully pursued a grievance and, a year or so later brought suit for damages. Treating the case as one of first impression, the Ninth Circuit Court of Appeals held that the action could be maintained. The court reasoned that the state interest in protecting the public health was very strong, and outweighed whatever federal interest there might be in assuring uniform interpretation and implementation of national labor policy. Holding that Garibaldi's state-law claims were not preempted by § 301, the court remanded the action to the state courts.

 Soon afterward, however, the same court decided Olguin v. Inspiration Consolidated Copper Co., 740 F.2d 1468 (9th Cir. 1984), in which plaintiff alleged that he was discharged for complaining about violations of mine-safety requirements, and also for "concerted activity" involving such violations. The Olguin court upheld dismissal of the action, noting that mine-safety regulations were a federal matter, and that the issues sought to be raised fell squarely within the employer-employee, collective bargaining, context preempted by § 301.

 Plaintiff seems to argue that the issue of retaliation was not, and could not have been, considered in the grievance proceeding. Indeed, plaintiff's argument can be interpreted as asserting that the collective bargaining agreement provided virtually no protection against wrongful discharge, since, it is contended, the contract empowered the employer to discharge plaintiff at will. I believe this is an unduly strained interpretation of the collective bargaining agreement.

 Article 43 of the collective bargaining agreement governs "discharge or suspension". Its language is, concededly, not a model of clarity. The pertinent provisions are as follows:

 
"The Employer shall not discharge nor suspend any employee without just cause until the case has been discussed with the Business Agent in person, where practical except where the provisions of this Article provide for discharge, but in respect to suspension or discharge shall give at least one warning notice of the complaint against such employee to the employee, in writing, and a copy of the same to the Union and Job Steward affected, except that no warning notice need be given to an employee before he is discharged if the cause of such discharge is . . . proven theft or dishonesty. . . .
 
"Discharge must be by proper written notice to the employee and the Union affected. Any employee may request an investigation as to his discharge or suspension. Should such investigation prove that an injustice has been done an employee, he shall be reinstated. Appeal from discharge, suspension or warning notice must be taken with ten (10) days by written notice and a ...

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