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Bakarr Bangura v. Pa Social Services Union -- Seiu 668

December 19, 2012

BAKARR BANGURA
v.
PA SOCIAL SERVICES UNION -- SEIU 668



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

This lawsuit involves a claim by a plaintiff union member against his union for breach of the duty of fair representation. Bakarr Bangura alleges that his union improperly failed to take his grievance against his employer to arbitration. The defendant, PA Social Services Union - SEIU 668, has moved to dismiss the amended complaint, and the pro se plaintiff submitted a "motion for a hearing" that the Court will consider as part of his complaint.

Federal jurisdiction is properly derived from the federal question of a union's duty of fair representation. Vadino v. A. Valey Eng'rs, 903 F.2d 253, 260-61 (3d Cir. 1990). The Court will grant the defendant's motion.

I. Factual Background*fn1

Mr. Bakarr Bangura was employed by Elwyn, Inc. for approximately 3 years in the capacity of community living assistant. Mr. Bangura was terminated from his position due to an incident on or around September 10, 2008 involving the alleged neglect of a client. Am. Compl. at 4 (Docket No. 5).

On or around September 10, 2008, Mr. Bangura worked an overnight shift in the employer's Thornbury program. In the morning, as his shift neared its end, Mr. Bangura completed the remainder of his duties, which included making breakfast, and dressing and preparing two of the clients for their day programs. Mr. Bangura did not prepare the third client because a colleague was ordinarily responsible for that client. Because the colleague failed to prepare that client on that particular day, the client was not ready for his day program when the school bus arrived. Mr. Bangura, with the assistance of a non-employee, cleaned and dressed the client, and the client was able to board the bus on time. However, Elwyn management found that Mr. Bangura's actions violated its work rules. Mr. Bangura was placed under suspension and eventually terminated. Id. at 4; Notes from Hearing, Dec. 18, 2012, at 1-2 ("N.H. 12/18/12").

Following his termination, Mr. Bangura filed a grievance with the Equal Employment Opportunity Commission (EEOC) against his employer, Elwyn. He received an EEOC Notice of Right to Sue letter on October 26, 2010. Five months later, he commenced an action in federal court against Elwyn.*fn2 Compl., Bangura v. Elwyn, Inc., 11-2793, May 2, 2011 (Docket No. 3). Mr. Bangura states that in the course of that lawsuit, Elwyn expressed a willingness to negotiate with him and gave at least one settlement offer, which he rejected. N.H. 12/18/12 at 1.

Mr. Bangura is a dues-paying member of the PA Social Services Union-SEIU 668. After his termination, he notified SEIU 668 of the events that took place. The union helped Mr. Bangura file an internal discipline grievance against the employer. Am. Compl. at 12 (exh. at 1). On April 24, 2009, the union sent another correspondence to Mr. Bangura, enclosing the employer's response to the grievance and asking Mr. Bangura to supply information supporting his position. Id. at 13 (exh. at 2). Mr. Bangura continued to give SEIU 668 updates on his case against Elwyn, including the fact that Elwyn expressed a willingness to settle in the related case. Id. at 4.

On September 21, 2010, SEIU 668 informed Mr. Bangura that it had decided not to arbitrate his grievance. It stated that his "termination was in accordance with Elwyn's Neglect of a Client Policy, which is a major offense," and that there was "insufficient evidence of a contract violation." Id. at 14 (exh. at 3). The correspondence informed Mr. Bangura of his right to appeal, and a hearing in front of the Statewide Grievance Appeal Committee was scheduled for November 13, 2010.

In a letter addressed to Mr. Bangura dated April 12, 2011, the chair of the statewide committee stated that it concurred with the union's decision not to pursue the grievance. This letter was mailed via certified mail, return receipt requested. Def. Mot. to Dismiss at exh. C-D. Mr. Bangura received and signed the return receipt on or around April 15, 2011. N.H. 12/18/12 at 3.

II. Procedural History

Mr. Bangura first filed an application to proceed in forma pauperis in the instant case on June 1, 2012. The Court denied the application, but granted him 30 days to file an amended application. The plaintiff's amended application was granted on July 2, 2012,*fn3 and he filed an amended complaint on July 18, 2012.

The amended complaint asserts three possible bases for federal question: 1) the union's failure to protect the rights of a registered member; 2) the union's failure to provide support, both financial and therapeutic; and 3) the union's failure to arbitrate a grievance against the employer. Am. Compl. at 2. Mr. Bangura later clarified that his claim derives from the union's "failure without any just course to meet its obligation to provide service to a member to participate in a mandatory grievance arbitration" pursuant to the National Labor Relations Act or Wagner Act of 1935 or collective bargaining. Pl. Mot. for Hearing at 1 (Docket No. 10).

In lieu of an answer, the defendant filed a motion to dismiss on November 13, 2012. Def. Mot. to Dismiss (Docket No. 9). The plaintiff then filed a motion for a hearing, and included facts which have been incorporated ...


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