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September 28, 1992


The opinion of the court was delivered by: BY THE COURT; STEWART DALZELL

 Dalzell, J.

 September 28, 1992

 Plaintiff, John W. Braxton, has brought this action against his labor union and former employer chiefly because he believes his union did not fairly represent him after United Parcel Service discharged him on December 27, 1990. Mr. Braxton seeks in this action to replay the internal political warfare within the International Brotherhood of Teamsters that resulted in the recent election of Mr. Braxton's fellow dissident, Mr. Ron Carey, as President of the International Brotherhood of Teamsters. Because we agree with Local 623 and United Parcel that the issues presented here are confined to the more mundane questions surrounding the particulars of Mr. Braxton's termination, and because we agree that the Local more than fulfilled its duty to champion Mr. Braxton's interests through the rights conferred upon him under the collective bargaining agreement between United Parcel and Local 623, we will grant the motions for summary judgment that the Local and United Parcel have filed.


 The basic facts necessary to understand this case are undisputed and largely come from Mr. Braxton himself.

 No one would likely accuse John Braxton of impersonating a stereotypical Teamster. After graduating near the top of his class at the William Penn Charter School in Philadelphia, Mr. Braxton graduated from Swarthmore College in 1970. After a period of work with the Quaker Action Group and later the Academy of Natural Sciences in Philadelphia, Mr. Braxton earned a master's degree in ecology from Rutgers University, Braxton dep. at 6, and in recent years has taught biology at Community College of Philadelphia.

 Mr. Braxton began part-time employment with United Parcel Service in February of 1978. After working for eleven years at the United Parcel facility on East Oregon Avenue in Philadelphia, in August of 1989 Mr. Braxton was transferred to the new United Parcel Hog Island warehouse at Philadelphia International Airport. During these thirteen years, Mr. Braxton had various jobs, including sorting, package handling, and truck unloading. Pertinent to the current controversy, he also became a union steward and, more visibly, an active member of Teamsters for a Democratic Union ("TDU"), which challenged the then-incumbent leadership of the International Brotherhood of Teamsters.

 It is also undisputed that Mr. Braxton achieved a certain degree of notoriety because of his TDU work and was referred to in the national press as "a TDU leader from Philadelphia." See, e.g., Los Angeles Times, November 1, 1990, p. 1, col. 5 ("Reformers Taking Aim at Entrenched Teamsters"); see also Christian Science Monitor, August 16, 1988, p. 3 ("Teamsters See 'A Whole Lotta Shakin' Going On' in Union"); New York Times, April 25, 1986, p. A-10 ("Move to Change Teamsters Steps Up"). The TDU was ultimately triumphant after its slate, led by Mr. Ron Carey, won the national Teamsters election on December 12, 1991. *fn1"

 In the less glamorous workplace at United Parcel Service, however, Mr. Braxton often ran afoul of his supervisors. During his ten-day deposition, he was asked how many "disciplinary notices or warnings" he had received during his tenure from United Parcel, and answered, "I would have to make a rough guess and say probably a hundred." Braxton dep. at 16. In his deposition, Mr. Braxton reported that in 1988 "I received two suspensions" and, after about a year's quiet, the "disciplinary notices or warnings" returned "beginning in January of 1990". Braxton dep. at 27.

  This succession of "disciplinary notices or warnings" culminated in the events of late December, 1990. It is undisputed that on Thursday, December 27, 1990, Mr. Braxton was discharged. In its termination letter to Mr. Braxton, United Parcel cited as the reasons for his firing "your continual failure to follow instructions and verbally abusing your supervisor." In accordance with Article 46 of the collective bargaining agreement between United Parcel and Local 623, the Local grieved Mr. Braxton's discharge. *fn2" Because United Parcel and Local 623 did not resolve the grievance at the grievance procedure stage, pursuant to Article 46, § 3 of the Supplemental Agreement, Local 623 appealed Mr. Braxton's discharge to the Atlantic Area Parcel Grievance Committee (which the parties refer to as the "AAPGC"), composed of three members appointed by United Parcel and three by the Union. Section 3(g) of Article 46 provides that in cases like Mr. Braxton's "an impartial arbitrator will sit as a seventh (7th) panel member of the AAPGC, and shall render a bench decision on all deadlocked cases."

 The AAPGC panel convened in Williamsburg, Virginia on January 15, 1991, and Local 623 President Dennis Laczo represented the Union. Both Mr. Laczo and Mr. Braxton offered extensive evidence and arguments at the AAPGC's hearing in support of the Union's position that United Parcel Service lacked "just cause" to discharge Mr. Braxton. Article 48 of the Supplemental Agreement with Local 623 provides that United Parcel "shall not discharge nor suspend any employee without just cause ...." The transcript of the AAPGC proceeding, attached as Exhibit C to Mr. Laczo's affidavit, documents in sixty-nine single-spaced pages the events of the January 15 hearing. *fn3" The AAPGC found that United Parcel had "just cause" to discharge Mr. Braxton and voted to sustain his discharge.

 Thereupon, Mr. Braxton filed this action under § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a). He also invokes his rights under the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411.

 Mr. Braxton's complaint asserts six counts. The first three counts allege breach of the duty of fair representation against the International Brotherhood of Teamsters (First Count), the Eastern Conference of Teamsters (Second Count) and Local 623 (Third Count). *fn4" The Fourth Count alleges that these union entities violated Mr. Braxton's rights under the LMRDA. The Fifth Count alleges that United Parcel Service discharged Mr. Braxton without "just cause" in violation of the Collective Bargaining Agreement, and the Sixth Count claims that United Parcel Service conspired with the union defendants because it "knowingly employs a grievance procedure pursuant to which grievances are decided by 'committees' consisting of representatives from company and union for the purpose of hampering the activities of union dissidents" (Complaint P 42), thereby furthering "the union defendants in their violations of the duty of fair representation" ([para.] 44).

 On April 24, 1992, Mr. Braxton entered into a stipulation of dismissal pursuant to Fed.R.Civ.P. 41(a)(1) with the International Brotherhood of Teamsters and the Eastern Conference. Since that time, it was reported to the Court that plaintiff no longer pursues his "conspiracy" count. *fn5"

 As a result of the foregoing, the First, Second and Sixth Counts have been voluntarily dismissed. Local 623 has filed a motion for summary judgment as to the Third and Fourth Counts and United Parcel seeks summary judgment as to the Fifth Count, the only remaining claim against the employer.

 Summary Judgment Standards

 Although Rule 56(e)'s requirements need no rehearsal, it will be useful in resolving these two motions to recall the Supreme Court's recent statements in Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). In his Opinion for the Court, Justice Scalia, after quoting Rule 56(e)'s requirement that judgment "shall be entered" against the non-movant unless affidavits or other evidence "set forth specific facts showing that there is a genuine issue for trial", stated that "the object of this provision is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit." 497 U.S. at , 110 S. Ct. at 3188. In stressing that assumptions cannot supplant the "specific facts" needed to sustain a complaint, Justice Scalia went on to say:

It will not do to "presume" the missing facts because without them the affidavits would not establish the injury that they generally allege. That converts the operation of Rule 56 to a circular promenade: plaintiff's complaint makes general allegation of injury; defendant contests through Rule 56 existence of specific facts to support injury; plaintiff responds with affidavit containing general allegation of injury, which must be deemed to constitute averment of requisite specific facts since otherwise allegation of injury would be unsupported (which is precisely what defendant claims it is).

 497 U.S. at , 110 S. Ct. at 3189.

 As will be seen, we regard Mr. Braxton's response to the motions for summary judgment to constitute an invitation to walk "the circular promenade" the Supreme Court has instructed federal courts to decline.

 Legal Analysis

 We begin by recalling the Supreme Court's general direction that "any substantive examination of a union's performance . . . must be highly deferential" to the union, Air Line Pilots Ass'n Int'l v. O'Neill, U.S. , 111 S. Ct. 1127, 1135 (1991). As the Supreme Court noted almost thirty years ago in Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 97 L. Ed. 1048 , 73 S. Ct. 681 (1953), "[a] wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents".

 Recognizing the union's critical importance to its members where, as here, the union is the exclusive bargaining representative, the Supreme Court has imposed a duty of fair representation which is breached "only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, 386 U.S. 171, 190, 17 L. Ed. 2d 842 , 87 S. Ct. 903 (1967). In a grievance procedure, the Supreme Court in Vaca ordained that the rule is "that a union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion. . . ." Id. at 191.

 As our Court of Appeals has noted in construing "perfunctory" as that word was used in Vaca, "we have recently made clear that whatever it may mean in other circumstances, '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"". Riley v. Letter Carriers Local No. 380, 668 F.2d 224, 228 (3d Cir. 1981), quoting Findley v. Jones Motor Freight, Etc., 639 F.2d 953, 960 n.2 (3d Cir. 1981). As Judge Van Dusen held for the Court of Appeals in Riley,

What is required is a showing of actual bad faith or arbitrary conduct. The fact that trained counsel could have avoided the error or pursued a different strategy is not enough.

 Id., citing Findley, supra, 639 F.2d at 961. *fn6"

 Where, as here, a collective bargaining agreement contains grievance and appellate procedures concluding with binding arbitration by a joint employer-union panel, both sides are contractually bound by the decision, and the result is "subject to very limited judicial review", qualified only by the union's duty to the member under Vaca. DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 164, 76 L. Ed. 2d 476 , 103 S. Ct. 2281 (1983). This rule is consistent with the powerful preference in federal labor law for arbitrating grievances that arise under collective bargaining agreements, and applying a "highly deferential" standard to the outcome of such arbitral processes, provided only that the union has fulfilled its duty of fair representation to the member.

 Bearing in mind that only his claim against Local 623 remains, the question therefore becomes whether the Local fulfilled its duty of fair representation to Mr. Braxton. As will now be shown, our independent review of the record in the light most favorable to Mr. Braxton leaves us with no other conclusions than (1) the Local vigorously pursued Mr. Braxton's cause, (2) Mr. Braxton was given every opportunity to state his position, and, most notably, (3) Mr. Braxton himself contemporaneously acknowledged his satisfaction with the Local's advocacy on his behalf. Under these circumstances, no "fair-minded jury could return a verdict for the plaintiff on the evidence presented", Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202 , 106 S. Ct. 2505 (1986).

 We will first consider Mr. Braxton's claims against Local 623, and then review the remaining Count against United Parcel. As will be seen, the pertinent facts come largely out of Mr. Braxton's own mouth.

 A. Claims Against Local 623

 1. The fair representation claim.

 The day after Mr. Braxton's discharge, a meeting was held between United Parcel and Local 623 representatives, pursuant to Article 46, § 2 of the Supplemental Agreement. Present at this meeting was Dennis Laczo, Local 623 President, Alternate Shop Steward Tom Colaizzi, and Mr. Braxton. United Parcel Supervisor Paul Sharp and Pre-Road Manager Tom Jones participated. According to Mr. Braxton's account (Braxton dep. at 60-61), both he and Mr. Laczo argued that Mr. Braxton's conduct did not warrant discharge, and "that that was evidence of discriminatory treatment on their [United Parcel Services's] behalf and that I didn't deserve to be disciplined at all, but if I had been -- if I was deserving of discipline, that to jump straight to a discharge was unfair and was discriminatory." When asked at his deposition what Mr. Laczo said, Mr. Braxton responded:

 A. He agreed with that statment [sic]. He made similar statements to that effect.

 Q. Did he argue to the Company that your discharge was improper, unfair, unjust, discriminatory?

 A. Yes, he did.

 Q. Did he say all of those ...

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