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SELLERS v. LOCAL 1598

December 14, 1984

Linda J. SELLERS
v.
LOCAL 1598, DISTRICT COUNCIL 88, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, et al.



The opinion of the court was delivered by: KELLY

 JAMES McGIRR KELLY, District Judge.

 Presently before this court is plaintiff's motion for summary judgment along with her motion for leave to amend her amended complaint. Defendants have filed motions to dismiss Ms. Sellers' complaints under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

 A. FACTS

 Linda Sellers is employed as a radio dispatcher with the Bensalem township police force. She is a member of the American Federation of State and County Municipal Employees (AFSCME) which has an operating agreement with the township. The seeds of this dispute were sown when Ms. Sellers was suspended without pay for chronic lateness. The terms and conditions of Ms. Sellers' employment are contained within the collective bargaining agreement (CBA) entered into by her local and the township. Article VIII of the CBA provides that the township may not suspend or discipline an employee without just cause. Ms. Sellers was disciplined pursuant to an established township policy that considers an employee who is late for work five or more times in any one month subject to disciplinary measures. *fn1" A first offense brings about nothing more than a written reprimand. The offender is put on notice of her action and advised that further violation may necessitate stronger measures. Ms. Sellers was admonished in such a fashion in January 1984 for excessive lateness in December 1983. The second offense carries with it a punishment ranging from a written reprimand to a maximum three days suspension. The plaintiff was suspended for three days in the beginning of April 1984 for the second violation. A third violation of the rule increases the punishment to include a suspension from between five to ten days. Approximately three weeks after her second suspension, Ms. Sellers was again cited for excessive lateness and suspended for ten days.

 Ms. Sellers does not dispute that the time cards, which record her attendance, reveal that she was "excessively late" according to township rules. The essence of her complaint is that she is being purposely singled out for disparate treatment for her vocal and active opposition to the Republican township supervisors and their supporters within the police ranks.

 Bensalem township has found itself in the midst of a political upheaval within the past year. In hotly contested primary and general elections, that produced bitter infighting within the dominant political party, there emerged a new board of supervisors to represent the township. The plaintiff, an ardent supporter of the losing faction, believes that her opposition to the new board members is the main reason for her ten day suspension.

 The CBA provides employees with a procedure to appeal the disciplinary action. This procedure, known in the vernacular as "grieving a dispute," was used by the plaintiff and her union in an attempt to settle the problem.

 The CBA's grievance procedure outlines the four stages an appeal of a dispute may take. The first step provides that the employee and the supervisor should discuss the problem between themselves in effort to resolve it. If that meeting proves unsuccessful, the employee may appeal to the township manager who will mediate the dispute and either affirm or deny the grievance. If the employee still believes that the grievance has not been resolved to her satisfaction, an appeal from the step two hearing may be made to the Board of Supervisors of the township. *fn2" The final appeal involves submitting the dispute to binding arbitration. Unlike appeals from the first three stages, the union and not the employee, decides whether the grievance warrants binding arbitration. The procedural history of Ms. Sellers' grievances begins with the first suspension in early April. A meeting between her supervisor and herself produced no resolution of the issues. The union notified the township manager that a step two hearing was needed. Prior to this hearing, Ms. Sellers received her second suspension. A grievance was filed on this action and the step one hearing was waived in order to consolidate both grievances before the township manager.

 The step two hearing was attended by the plaintiff, her shop steward, Frank Flatch (the president of her local), the captain of Bensalem's police force and the police lieutenant who issued the suspensions. Rigorous cross-examination by each side took place and charges of political motivation were leveled at the police department. The union was supportive of Ms. Sellers' complaint and believed that the township record indicated unequal treatment among employees for the same violation. The township manager, nevertheless, upheld the suspension on the basis of plaintiff's attendance record. Ms. Sellers and the union indicated their desire to appeal the ruling to the township's Board of Supervisors (the third step hearing).

 Ms. Sellers believes that the step three hearing deprives her of her property rights for three reasons: (1) the union is incompetent to protect her interest, (2) the hearing must be before a panel of unbiased supervisors and the hearing must be structured to provide for a full evidentiary trial like procedure, (3) Ms. Sellers' property right is of the nature that a pre-termination hearing is mandated prior to suspending her.

 In order to remedy these deficiencies, Ms. Sellers demands that she be represented at any stage of the grievance by counsel of her own choosing; that she may be allowed to record the proceedings to form a record for appeal; and have the opportunity to present evidence and witness along with ability to cross-examine her accusers.

 According to affidavits filed with this court, it appears that three out of the five demands plaintiff is requesting are currently the norm at step three hearings. Plaintiff would be allowed to present evidence, cross-examine witnesses, and her union would be present to assist her on making a record for appeal if the township's decision was adverse. It also appears that there is no township rule which would prevent Ms. Sellers from recording the proceedings. Indeed counsel for the plaintiff has admitted that a court reporter was hired by Ms. Sellers for this very purpose.

 Thus the gravamen of plaintiff's complaint is whether due process necessitates that she receives an impartial forum at this stage *fn4" along with the right to be represented by counsel. The defendants have consistently taken issue with the characterization of Ms. Sellers' claim as a due process problem. The union has presented the issue as whether their lack of acceding to Ms. Sellers' demands is a breach of duty to fairly represent her in the grievance proceedings. The union believes that CBA grievance procedures (steps one through four) provide the plaintiff with the minimum due process she is entitled to receive. The union also argues that the civil rights actions §§ 1983, 1985, 1986 and 1988 may not lie against them since their conduct does not amount to state action.

 The township also categorizes the demands as a labor dispute. Their failure to provide an impartial forum would at best be a breach of the CBA. Finally, all the defendants assert that the plaintiff is not entitled to a pre-termination hearing as a matter of constitutional right.

 A recent development between the parties has changed the posture of this action. The union and the township have agreed to waive the third step hearing and proceed ...


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