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May 20, 1976

Robert MARIETTA, Plaintiff,
CITIES SERVICE OIL COMPANY, a Delaware Corporation authorized to do business in the State of New Jersey and Oil, Chemical and Atomic Workers Union, Local 8-337, Defendants

The opinion of the court was delivered by: FISHER

 Plaintiff, Robert Marietta, a former employee of defendant Cities Service Oil Co. (hereinafter referred to as "Citgo"), and a member of defendant Oil, Chemical and Atomic Workers Union, Local 8-337 (hereinafter referred to as "local union"), brought an action against the aforesaid defendants seeking to be reinstated in his former position with Citgo and for damages. The suit against the defendant employer alleging wrongful discharge in violation of plaintiff's contractual rights under the collective bargaining agreement, was brought pursuant to § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. Plaintiff's suit against the local union, alleging breach of its duty of fair representation, was improperly brought under § 301 of the LMRA. Correctly stated, this latter suit alleges a breach of the "duty implied from the grant to the union of the exclusive power to represent employees of the collective bargaining unit in § 9(a) of the National Labor Relations Act, 29 U.S.C. § 159(a)." Holodnak v. Avco Corp. et al., 381 F. Supp. 191, 194 n.2 (D.Conn.1974). The Court has jurisdiction under 28 U.S.C. § 1337.

 This matter comes before the Court on defendants' motions for summary judgment. To adequately deal with these motions, a full examination of the facts is necessary.

 The plaintiff was first employed with Citgo in July of 1960 and continued to be employed by the defendant until May 19, 1973. During much of this time, plaintiff was an oil truck driver which involved, among other things, driving a large truck and pulling large oil hoses. On February 7, 1973 the plaintiff injured his back while unloading hoses from a truck. The next day he was examined by a Dr. Sweeney, the doctor for Citgo's workmen's compensation insurance carrier, and told to rest and return in a week. On February 16, 1973, Dr. Sweeney again examined the plaintiff, who stated he did not think he could go back to work at that time. After cancelling a February 23rd appointment because of an unrelated illness, plaintiff was again examined on March 1, 1973. Dr. Sweeney told the plaintiff that he could return to work on March 5th and apparently gave him a note which stated:

 On March 6, 1973 Dr. Sweeney wrote a report to Citgo's carrier stating that in his opinion plaintiff's temporary total disability ended on March 5th, that his back condition was no worse now than prior to his accident, and ". . . after reviewing this man's history [which involved several episodes of non-specific attacks from minor back injuries always in the same area with no x-ray indication of disease] and present and past physical findings, that he should not be placed back in the job capacity of a truck driver and especially one who is required to pull on hoses. . . ."

 When the plaintiff returned to his job on March 5th, he was not permitted to work but was told that he would have to be examined by a Citgo doctor. On the same day he was examined by Dr. MacLeod, the medical director for the defendant Citgo. Plaintiff alleges Dr. MacLeod told him that he could return to his regular job, but in his March 9th report to the company, the doctor concluded:

"Because of frequent recurrent back problems related to his work as an oil truck driver which involves manipulating heavy hoses in the process of delivering oil, it is my opinion that this employee should not return to this type of work which carries the hazard of precipitating further recurrences. At the present time he has recovered from his recent recurrence of low back pain and is able to return to work, but it is my recommendation that his work should be restricted to sedentary work and that this should be a permanent restriction."

 Plaintiff was not permitted to resume his job as a truck driver and on March 22, 1973 he was informed by Citgo that in view of the medical recommendations and the absence of other work, both now and in the foreseeable future, his employment was to be terminated effective May 19, 1973. On March 25, 1973 the plaintiff filed a grievance with his foreman protesting his termination.

 In early April plaintiff visited his personal physician and obtained a memo from him regarding his ability to work. This was a pre-printed memo dated April 10, 1973, addressed "To whom it may concern". The plaintiff's name was handwritten on the memo, and the pre-printed portion read:

"The above-named patient is now able to resume (his)(her) usual occupational duties."

 The "(her)" was crossed out and the memo contained the signature of Dr. Schwartz.

 On April 9th a meeting with the local union's "Workmen's Committee" and Citgo's Terminal Manager was held to discuss the plaintiff's grievance. The next day the Terminal Manager informed the local union by letter that upon reviewing the facts, the grievance was found to be without merit and, therefore, denied. On the same day the local union submitted the memo of Dr. Schwartz regarding plaintiff's ability to work. The reaction of the Terminal Manager can best be described by quoting paragraph 9 of his affidavit wherein he states:

"In view of the comprehensive reports of Drs. Sweeney and MacLeod, I was not persuaded to change my decision regarding the termination of Marietta on the basis of the one-sentence statement from Dr. Schwartz."

 Aff't. of James R. Fiedler. See also, Citgo's answer to plaintiff's Interrogatory 2(d) wherein it is stated that the local union urged the opinion of Dr. Schwartz.

 On May 9, 1973 the local union informed the company that it was not satisfied with its April 10th response to the grievance, and it wished to take the grievance to the next step in the grievance procedure. This involved submitting the grievance to the Company Management Representative from Tulsa, Oklahoma. On May 22, 1973 a meeting was held with Citgo's Management Representative, a representative from the International Union, the President of the local union, representatives of the Workmen's Committee, Citgo's Terminal Manager and the plaintiff in attendance. Following these negotiations, Citgo's Management Representative denied the grievance by letter dated May 24, 1973.

 On June 15th, Citgo's Terminal Manager again met with the local union, and it was agreed at this meeting that the dispute should be submitted to a third person -- a medical doctor mutually acceptable to both parties -- for resolution. The attorney for the local union advised the Workmen's Committee to submit the names of two physicians, Dr. Winfield and Dr. Gittelman, to the company. Citgo rejected Dr. Winfield, the local union's first suggestion, because he was a general practitioner. Citgo desired an orthopedic surgeon. The company suggested another doctor which was rejected by the local union. The local then proposed Dr. Gittelman and Citgo agreed.

 By letter agreement dated July 6, 1973 and executed July 16, 1973 the local union and Citgo agreed that the plaintiff would be examined by Dr. Gittelman, and that his determination regarding the plaintiff's ability to perform satisfactorily the duties of an oil truck driver would be binding on all parties. It was further agreed that prior to this examination, Citgo's Terminal Manager and the local union's Workmen's Committee chairman would meet with Dr. Gittelman and outline the duties of a truck driver. It was to be stressed that the plaintiff must be able to perform these duties without physical difficulty and on a regular full time basis. Finally the agreement provided that if the doctor determined that plaintiff could return to work as a truck driver, he would be reinstated; if not, his lay-off status would remain in effect, and "there shall be no further recourse under the labor agreement involving this matter."

 On August 2, 1973 the aforesaid agreement was carried out. Dr. Gittelman was advised of the dispute; that the purpose of the examination was to resolve the dispute; that plaintiff had been examined by Dr. Sweeney and Dr. MacLeod and the other items specified in the agreement including plaintiff's employment history with Citgo. It is not clear whether Dr. Gittelman actually reviewed the findings and opinions of Drs. Sweeney and MacLeod. Citgo's answer to plaintiff's Interrogatory 3(d) indicates that the statements of those doctors and of Dr. Schwartz were made available to Dr. Gittelman, but states that it is not recalled whether he actually received them. (Compare statement by Citgo's counsel at oral argument on this motion to the effect that Dr. Gittelman was not provided with the medical records on file with the company. T. pp. 18, 19).

 Subsequently Dr. Gittelman submitted his report, and upon detailing his examination findings and reviewing the plaintiff's medical history, stated:

"Although the examination at this time reveals a completely normal range of motion. . . without comment or complaint . . . it is my opinion that he [plaintiff] should not return to his usual work as a tank driver or any other type of laborious work which might again cause recurrences and periods of varying disability."

 Plaintiff's subsequent attempts to have his grievance reopened have failed.

 The foregoing facts were derived from the affidavits and answers to interrogatories filed in this action. These documents were analyzed in accordance with Fed.R.Civ.P. 56. *fn1" Thus these facts represent most of the ...

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