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December 29, 1988

LUIS FAJARDO, Plaintiff,

The opinion of the court was delivered by: WOLIN


 The complaint in this action was filed on or about May 28, 1987 in the Superior Court of New Jersey by Luis Fajardo, plaintiff, against Mayfair Supermarkets, Inc. ("Mayfair") and Local 1262, United Food & Commercial Workers Union ("Union"). The plaintiff alleges that defendant Mayfair improperly discharged him for six weeks and transferred him to another store location despite his seniority status and without a grievance proceeding. Furthermore, plaintiff alleges that defendant Union has refused to protect and enforce plaintiff's rights as it is obligated to do through grievance and arbitration proceedings.

 On July 10, 1987, defendants filed a petition for removal on the grounds that the subject matter of the dispute was within the original jurisdiction of the United States District Court pursuant to Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185.

 This matter is now before the Court on co-defendants' motions for summary judgment, by which they seek dismissal of the instant Section 301 suit against them.

 For the reasons set forth below, the motions of defendant Mayfair and defendant Local 1262, United Food & Commercial Workers Union are granted.


 Plaintiff, Luis Fajardo, has been employed by Mayfair Supermarket, Inc. since 1966. He is represented by a labor organization known as Local 1262, United Food & Commercial Workers, with whom Mayfair entered into a collective bargaining agreement dated April 9, 1984. The agreement governs various terms and conditions of employment and provides that any grievance or dispute may be referred to arbitration by either party. Furthermore, the company by-laws provide that the Union has "exclusive authority to submit grievances to arbitration, withdraw grievances, settle and compromise grievances and decline to invoke the grievance procedures of a collective bargaining agreement."

 Throughout the duration of his employment, plaintiff has been disciplined on several occasions. In 1981, he was discharged due to drinking on company premises after signing out of work without authorization and refusing to leave the store when asked to do so. After filing a grievance on his behalf, the Union worked out a settlement and plaintiff was reinstated. In May 1983, plaintiff was suspended for recurrent absenteeism. Subsequently, he was convicted on an unrelated matter and incarcerated for 90 days. Mayfair promptly terminated plaintiff again. After a grievance filed by the Union on plaintiff's behalf was denied, the Union called for arbitration of the dispute. The arbitration hearing of March 26, 1984 resulted in a settlement whereby plaintiff was reinstated with back payment of pension benefits, no loss in seniority, credit for service, and payment of $ 1,000. The agreement was reduced to writing and agreed to by plaintiff.

 The incident leading to plaintiff's present grievance occurred on October 15, 1986, when plaintiff had a disagreement with store supervisor, Pete McCann. It appears that McCann criticized plaintiff's work performance and indicated to plaintiff that he was going to transfer him from the produce department to the "front end" of the store. Plaintiff strongly objected to such a transfer, and harsh words were exchanged between the two. As a result, McCann discharged plaintiff for insubordination, claiming that plaintiff had threatened him with physical harm.

 On approximately October 16, plaintiff contacted William Rovensky, the Union's business representative, and reported that he had exchanged harsh words with Pete McCann and that McCann had discharged plaintiff. On October 21, Rovensky arranged to meet with plaintiff, at which time plaintiff submitted a written statement outlining the October 15 incident, as well as a completed grievance report.

 On October 28, plaintiff and Rovensky met with McCann, personnel manager Dan Petruzzi, and store manager Keith Ramey. At that meeting, McCann maintained that plaintiff had threatened his life and that plaintiff was terminated for insubordination to the store supervisor.

 Subsequently, Rovensky contacted Union field director Harvey Whille, who arranged a meeting on November 25, 1986 with Anthony Petrillo, Director of Operations, to discuss plaintiff's termination. Whille first met with plaintiff on the morning of November 25, at which time plaintiff explained the October 15 incident. Whille then attended a meeting with Petrillo, McCann and Art Johnson, Director of Human Resources. At that time Mr. Petrillo expressed his belief that plaintiff was a dangerous individual who showed great hostility toward management. Petrillo claimed that he no longer wanted plaintiff in the store and that the dispute between Mayfair and Fajardo could not be resolved without arbitration. By the end of the meeting, McCann offered to reinstate plaintiff on the condition that he would accept a transfer to the frozen food department of the Irvington store. *fn1"

 Whille phoned plaintiff later that day to inform him of the offer of settlement. Plaintiff told Whille that he did not want to work in "frozen foods" and that he did not like the Irvington area. Whille advised plaintiff that this settlement was the best that could be reached and that he should report to the Irvington store. Whille further stated that the Union would do everything possible to assist plaintiff should he have any problems in the Irvington store. Plaintiff subsequently accepted the offer by returning to work on December 1, 1986 at the Irvington store.

 Upon arriving at the Irvington store, plaintiff claims that he phoned Mr. Whille to request arbitration of his transfer, but was told that there could be no arbitration. Apparently Whille explained to plaintiff that the transfer was part of the settlement of his discharge grievance and was not subject to attack under the collective bargaining agreement.

 On January 14, 1987, the company sent plaintiff two checks for two weeks back pay as part of the settlement agreement. Through counsel, however, plaintiff returned the money to the company on March 26, 1987 and requested a formal resolution of the dispute by means of an arbitration hearing. Plaintiff's counsel threatened to file suit to enforce plaintiff's rights under the collective bargaining agreement if an arbitration hearing was not instituted on plaintiff's behalf.

 According to the Union by-laws, after being informed of the local union's disposition of his grievance, a member has 15 days to file an appeal to the Executive Board. The Executive Board will consider the appeal at its next regular meeting, and advise the member of its decision within 30 days. Finally, any member who does not appeal the local union's disposition of his grievance is deemed to have acquiesced in such disposition. See By-laws, Article XVII, "Appeals of Member From Local ...

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