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Fleming v. United Parcel Service Inc.

Decided: January 22, 1992.

THEODORE FLEMING, PLAINTIFF,
v.
UNITED PARCEL SERVICE, INC., JULIO CASTELLANOS, DENNIS O'KEEFE, RONALD FOX, WILLIAM ROGALSKY, WALTER M.D. KERN, ATLANTIC AREA PARCEL GRIEVANCE COMMITTEE AND AL BARLOW AND JOHN DOES, MEMBERS OF THE ATLANTIC AREA PARCEL GRIEVANCE COMMITTEE, DEFENDANTS



Villanueva, J.s.c.

VILLANUEVA

OPINION

VILLANUEVA, J.S.C.

After an arbitration panel upheld plaintiff's discharge from employment on the grounds of dishonesty and after the termination of criminal complaints against him, he filed this action for interference with his contractual rights, slander, suffering severe emotional distress and six counts dealing with the prosecution of criminal charges against him.

Plaintiff's grounds for relief are primarily that the Arbitration Panel established under the collective bargaining agreement, which waited almost two years until the Disposition of the criminal complaints in the municipal court, wrongfully refused to delay its proceedings until the completion of plaintiff's trial de novo in the Superior Court. Plaintiff also contends that the municipal court proceedings were tainted by all defendants

because the municipal prosecutor was compensated by plaintiff's former employer.

The court holds that all plaintiff's causes of action except one slander charge are barred for various reasons, such as federal preemption, statutes of limitation, privilege, arbitral immunity, prosecutorial immunity and Tort Claims Act immunity. Furthermore, Opinion 523 of the Supreme Court Committee on Attorney Ethics permits a municipal prosecutor to be compensated by a complaining person.

PRELIMINARY STATEMENT

On December 27, 1989, plaintiff Theodore Fleming ("Fleming") filed a ten count complaint against his former employer, United Parcel Service, Inc. ("UPS"), four of its employees, Ronald Fox, Dennis O'Keefe, Julio Castellanos*fn1 and William Rogalsky*fn2, the Atlantic Area Parcel Grievance Committee, ("Arbitration Panel"), Al Barlow, a member of the Arbitration Panel, "John Doe" members of the Arbitration Panel, and Walter M.D. Kern, former municipal prosecutor of the Township of Saddle Brook, New Jersey. The complaint is based upon Fleming's discharge from employment by UPS on March 3, 1986 on the grounds of dishonesty, the Arbitration Panel's upholding of his discharge, and the prosecution of him for theft and assault on criminal complaints signed by Fox, O'Keefe and Castellanos with the knowledge and approval of UPS.

Two counts of the complaint deal with Fleming's discharge from employment and the Arbitration Panel's upholding of that discharge. Fleming alleges in the Second Count that the Arbitration Panel refused to delay his discharge arbitration hearing until an appeal of his municipal court conviction had been decided contrary to public policy and in violation of his contractual

rights under a collective bargaining agreement between UPS and Local Union No. 177, affiliated with the International Brotherhood of Teamsters ("Local 177"). Fleming alleges in the Fifth Count that all defendants interfered with his contractual rights under the same collective bargaining agreement.*fn3 Defendants contend that both of these claims are governed by federal substantive law. These allegations involve the Arbitration Panel's decision upholding Fleming's discharge. Count Two alleges that the Arbitration Panel, Al Barlow and other "John Doe" members of that committee acted wrongfully by proceeding with his discharge hearing during the pendency of his appeal from a municipal court conviction. Count Five alleges that the Arbitration Panel, Al Barlow and other "John Doe" members of that committee interfered with his contractual rights by proceeding with his discharge hearing.

Six counts of the complaint deal with the criminal charges lodged against Fleming and the prosecution of those charges. Fleming alleges false arrest against UPS, Fox, O'Keefe, Castellanos and Rogalsky (Eighth Count), and malicious prosecution against those defendants and Kern (Sixth Count). He also alleges that UPS made, and Kern accepted, payment for services in connection with Kern's prosecution of the criminal charges against him in the Saddle Brook Municipal Court, which payments he asserts were illegal. (Third and Fourth Counts). In addition, Fleming alleges misuse [abuse] of process in connection with his criminal prosecution (Seventh Count), and denial of the constitutional right to a speedy trial (First Count) against UPS, Fox, O'Keefe, Castellanos, Rogalsky and Kern.

Fleming also claims that defendants have slandered him (Ninth Count) and that he has suffered severe emotional distress (Tenth Count).

All defendants move for summary judgment to dismiss the complaint.

FINDINGS OF FACTS

Acting pursuant to a customer complaint, UPS loss prevention specialists set up a surveillance of certain packages at their Saddle Brook facility in March 1986. On March 3, 1986, during this surveillance they observed Fleming, a UPS employee truck driver, place the packages in his UPS vehicle. When confronted, Fleming sped off with UPS Loss Prevention Manager Fox literally hanging from the vehicle. Despite Fox's protests, Fleming continued to accelerate, nearly running over two other loss prevention specialists, defendants Castellanos and O'Keefe. The UPS employees positively identified both Fleming and his vehicle. This was a finding in the written opinion of the Honorable John A. Conte, Judge of the Municipal Court of the Township of Saddle Brook. Nevertheless, Fleming still denies these allegations.

Fleming was confronted by the loss prevention specialists at UPS's Secaucus facility later on March 3, 1986. Also on that day a discharge hearing was held pursuant to the collective bargaining agreement then in effect between UPS and Fleming's union representative, Local 177. The hearing was attended by Fleming, alternate union steward John Jennings, Fox and Rogalsky, who was Feeder Division Manager of UPS's Saddle Brook facility at the time of Fleming's arrest. Fleming contends that Rogalsky told him that if he resigned his employment, he would not be prosecuted. When Fleming refused to resign, he was informed by letter from Rogalsky dated March 4, 1986 that his employment was terminated for committing a dishonest act.

On March 3, 1986 Fleming was arrested and charged with three counts of aggravated assault and one count of theft over $200. The theft charge was signed by Castellanos, and the assault charges were signed by Castellanos, O'Keefe and Fox.

The arrest was effected by officers from the Secaucus Police Department, who later turned Fleming over to the Saddle Brook Police. The Bergen County Prosecutor's Office downgraded the charges to theft under $200 and simple assault, and the matter was then referred to the Saddle Brook Municipal Court. An initial trial date was set for June 9, 1986.

Fleming was represented for purposes of collective bargaining by Local 177. He had certain rights under a collective bargaining agreement, which contained a discharge provision and a binding grievance and arbitration procedure. Fleming filed a grievance protesting his discharge which was processed by Local 177. Under UPS's agreement with Local 177 unresolved discharge grievances were heard by the Arbitration Panel. The Arbitration Panel consisted of three Teamster Union representatives, three UPS representatives and a neutral arbitrator who ruled only when the other six Arbitration Panel members were deadlocked.

While UPS was ready to proceed before the Arbitration Panel with its discharge case against Fleming, the matter was forestalled by the refusal of the three Union Arbitration Panel members to proceed. This refusal was caused by Local 177's request that the Arbitration Panel not proceed during the pendency of Fleming's criminal trial, which request was also made by Fleming and his attorney.

During an appearance in Saddle Brook Municipal Court in June of 1986, Municipal Prosecutor Walter M.D. Kern ("Kern") advised Fox and Rogalsky that the Fleming case would have to be tried on nonregular court dates (regular dates were Wednesday evenings), and that he (Kern) received no compensation for such dates. He told them that they could retain him at $150 per hour for services for his preparation and appearances on non-regularly scheduled court dates, retain another attorney to prosecute the case or attempt to get the county prosecutor to do it. They agreed to retain Kern and pursuant thereto Kern submitted bills for services to UPS which were paid by UPS.

The criminal trial against Fleming, which began on December 4, 1986, was initially prosecuted by Kern. When Kern was disbarred, due to unrelated complaints, effective December 1987, Scott E. Smith, an associate with Pitney, Hardin, Kipp & Szuch, took over the prosecution of the case against Fleming. The trial testimony concluded on April 25, 1988.

In June 1988 Judge Conte found Fleming guilty of theft, but not guilty of the assaults on the ground that ". . . there is some doubt, although slight, that defendant intended to commit an assault on anyone rather than flee the scene as quickly as possible."

On June 26, 1988 Fleming's attorney wrote to defendant Barlow stating that Fleming had been found guilty of theft, that Judge Conte's written opinion was expected on July 27, 1988 and that there would be an appeal of Fleming's conviction. He once again requested that the Arbitration Panel not proceed with Fleming's discharge case.

Local 177, at Fleming's request, repeatedly sought continuances, and the Union members of the Committee declined to hear the case for two years. On July 5, 1988, after the Conclusion of Fleming's trial in Municipal Court, he was warned 0 by Local 177:

Please be advised that our Local Union supports your position to continue to hold your discharge case before the Atlantic Area Parcel Grievance Committee in abeyance pending the outcome of your court appearance. However, the AAPGC may rule that your case must be heard on Tuesday, July 12, 1988 in Norfolk, Virginia, therefore, it is imperative that you come to our offices as soon as possible to prepare your case.

Nevertheless, Fleming did not appear at the July 12, 1988 hearing. The neutral arbitrator broke the procedural deadlock between the Union and Company members by ruling that the Fleming's discharge case must proceed to hearing. The Committee reasoned:

The panel, in postponing the case over the past approximately two years, has been implementing the advice of the parties' respective attorneys. As the panel has understood that advice, it was that the case should not be heard by the panel until the grievant had his day in court. The panel views that event to

have occurred because the trial has been held and the verdict has been rendered. The panel does not take any appeals proceedings to have been part of the understanding by which the case has been postponed. 1 However, the panel believes that the case should continue to be held in abeyance until the trial Judge has issued his written opinion, anticipated in late July. If that opinion is in fact issued by that time, the case is to be heard at the panel's scheduled August hearing.

Fleming's case was called on August 9, 1988. Although Local 177 had urged him to be present, he declined to attend on the advice of counsel. During the hearing, the Committee's questioning disclosed that Local 177 had not furnished plaintiff with a copy of the July 12th procedural ruling. It instructed the Local Union to cure its omission and to advise plaintiff of his right to appear and be heard at the Committee's next scheduled proceeding. If he appeared, the entire case (including UPS's evidence) was to be heard again; if he did not, the case was to be decided on the record made at the August 9, 1988 hearing. Fleming was notified of these rulings on August 11, 1988.

On August 11, 1988 Mario Perrucci, Secretary-Treasurer of Local 177, wrote Fleming advising him that the Arbitration Panel proposed to decide his case at its September 1988 session and that he could be heard in his own defense if he so chose. Perrucci 2 concluded: "Please let us have your reply by the end of August, so that we may have adequate opportunity for preparing your defense should you choose to avail yourself of the opportunity to be heard."

Fleming's attorney responded on August 16, 1988, arguing that the Committee should not proceed because the matter had been appealed to the Superior Court. Under New Jersey law, he said, the Superior Court would review the matter de novo on the record made before the Municipal Court. Characterizing the case pending in the Superior Court as a "new trial", not an "appeal", he insisted that Fleming had a right not to appear before the Committee. The argument was rejected. When Fleming failed to appear at the September 13th hearing, the

Committee decided the case on the existing record, sustained his discharge, and notified him in September 1988.

Fleming appealed his municipal court theft conviction to the Superior Court, where his counsel argued that the delays experienced in the Saddle Brook Municipal Court proceeding violated Fleming's right to a speedy trial. Superior Court Judge Andrew P. Napolitano agreed, so, on March 15, 1989, he dismissed the complaint, without reaching the merits, 3 based on a violation of Fleming's constitutional right to a speedy trial.

At all times relevant to this litigation, a collective bargaining agreement between UPS and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of American, Local 177 ("Local 177") governed the terms and conditions of plaintiff's employment with UPS ("Local 177 Agreement").

The Local 177 Agreement provides for immediate discharge of an employee for "proven or admitted dishonesty." The agreement sets forth a grievance machinery that "may be invoked only by authorized Union representatives." Furthermore, the agreement provides that all grievances arising out of any "controversy . . . as to [its] interpretation, application or observance," shall "be heard by the [AAPGC] unless otherwise mutually agreed upon."

The AAPGC's Rules of Procedures provide: "Neither party shall be entitled to more than one postponement on any given case and there shall be no more than two (2) postponements for any reason on any given case."

Fleming acknowledges that the AAPGC postponed his discharge hearing more than twice and that a Local 177 official informed him that on the third attempt for postponement 4 that he would have to abide by the AAPGC's decision. Fleming does not contend that the AAPGC violated any rules or procedures in hearing his case when it did.

I.

PLAINTIFF'S CLAIM AGAINST UPS, FOX AND O'KEEFE FOR INTERFERENCE WITH HIS RIGHTS UNDER THE COLLECTIVE BARGAINING AGREEMENT IS DISMISSED AS A MATTER OF LAW.

Fleming alleges that the Arbitration Panel and its members, by failing to delay his discharge arbitration hearing until the Conclusion of his appeal of his criminal conviction, violated his rights under the collective bargaining agreement and public policy and that his discharge as upheld by the Arbitration Panel was therefore unlawful. Fleming also alleges that all defendants interfered with his rights under the collective bargaining agreement, that his discharge was unlawful because the Arbitration Panel proceeded with his case and that his right to appear before the Arbitration Panel was somehow violated. Fleming recognizes that discharges from employment, such as his, are governed by the collective bargaining agreement and that contested discharges are resolved by the Arbitration Panel. Fleming's claims in the Second and Fifth Counts are based upon, and necessarily 5 intertwined with, the collective bargaining agreement between Local 177 and UPS.

A. Plaintiff's Claims in the Second and Fifth Counts Are Governed by Section 301 of the Labor Management Relations Act and Must Be Assessed under Applicable Federal Law.

Section 301 of the Labor Management Relations Act, 29 U.S.C.A. § 185(a) authorizes the federal courts to create a body of federal law for the enforcement of collective bargaining agreements. Textile Workers Union v. Lincoln Mills of Ala., 353 U.S. 448, 450-451, 456, 77 S. Ct. 912, 914-915, 917, 1 L. Ed. 2d 972 (1957). In Local 174, Teamsters, etc. v. Lucas Flour Co., 369 U.S. 95, 82 S. Ct. 571, 7 L. Ed. 2d 593 (1962), the United States Supreme Court held that in suits involving collective bargaining agreements Section 301 mandates that substantive

principles of federal labor law are paramount, and state laws are preempted. Id. at 102-103, 82 S. Ct. at 576-577. The Court reasoned that "[S]tate law which frustrates the effort of Congress to stimulate the smooth functioning of that process thus strikes at the very core of federal labor policy." Id. at 104, 82 S. Ct. at 577.

In a series of cases beginning with the "Steelworkers Trilogy" the United States Supreme 6 Court held that grievance and arbitration procedures under collective bargaining agreements are enforceable under Section 301 and that suits involving those procedures are governed by the federal labor law developed under Section 301. United Steelworkers of America v. American Manufacturing Company, 363 U.S. 564, 80 S. Ct. 1343, 4 L. Ed. 2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Company, 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960).

New Jersey has long recognized that in suits under Section 301 federal substantive law must be applied. Standard Motor Freight, Inc. v. Local Union No. 560, 49 N.J. 83, 86, 228 A.2d 329 (1967); Brooks v. New Jersey Manufacturers Ins. Co., 170 N.J. Super. 20, 30, 405 A.2d 466 (App.Div.1979); Jennings v. M & M Transportation Co., 104 N.J. Super. 265, 275, 249 A.2d 631 (Ch.Div.1969). Although such claims may be heard in a state forum, it is federal law which must be applied. Standard Motor Freight, Inc. v. Local Union No. 560, supra, 49 N.J. at 86, 228 A.2d 329.

B. Plaintiff's 7 Complaint Does Not Touch on Interests Deeply Rooted in Local Concern.

Fleming's argument that New Jersey has a deeply rooted interest in adjudicating claims for tortious interference with contract misses the mark. Any examination of New Jersey's

interest must be limited by the context of this claim, i.e. the tortious interference with employment rights.

New Jersey has very little, if any, interest in this litigation. The only reason plaintiff even has a contractual right which he can claim that the AAPGC allegedly interfered with is that federal labor law has provided him with one. New Jersey continues to recognize the doctrine of employment at will, holding that, with limited exceptions, an at will employee may be fired for a good reason, a bad reason, or no reason at all. See e.g., Erickson v. Marsh & McLennan Co., 117 N.J. 539, 560-561, 569 A.2d 793 (1990).

New Jersey, therefore, has no strong interest in this case. Fleming's rights, if any, exist because of "a labor contract -- which has its being in, and draws its vitality from, the federal common law of labor contracts." Wilkes-Barre Pub. v. Newspaper Guild, etc., 647 F. 2d 372, 381 (3d Cir.1981), cert. den. 454 U.S. 1143, 102 S. Ct. 1003, 71 L. Ed. 2d 295 (1982).

C. Plaintiff's Claims Concerning the Arbitration Award Are Time-Barred and Fail to State a Claim.

The collective bargaining agreement between UPS and Local 177 contains express provisions for grievance and arbitration procedures regarding discharge from employment. Thus, Fleming's claims in connection with his discharge and the arbitration proceeding are governed by Section 301, and his sole and exclusive remedy for the protest of his discharge was the grievance and arbitration procedures of that collective bargaining agreement. E.g., Del Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983); United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S. Ct. 1559, 67 L. Ed. 2d 732 (1981); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S. Ct. 1048, 47 L. Ed. 2d 231 (1976); Republic Steel v. Maddox, 379 U.S. 650, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965); Berda v. CBS Inc., 881 F. 2d 20 (3rd.Cir.1989),

8 cert. den. 493 U.S. 1062, 110 S. Ct. 879, 107 L. Ed. 2d 962 (1990); Cole v. Pathmark, 672 F. Supp. 796 (D.N.J.1987).

Fleming's discharge 9 claim was processed through the grievance and arbitration procedures of the Agreement. Fleming here attempts, in effect, to attack the arbitration decision itself. He contends that he was wrongfully discharged and that the Arbitration Panel's upholding of this discharge was also unlawful and that defendants interfered with his rights under the collective bargaining agreement or common law because the Arbitration Panel proceeded with his case. It has long been established, however, that a labor arbitration award is final and binding on an individual employee-grievant who has no standing to attack it. E.g., Hines v. Anchor Motor Freight, Inc., supra 424 U.S. at 563, 96 S. Ct. at 1055, citing Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965); Owens v. Texaco, 857 F. 2d 262 (5th Cir.1988), cert. den., 490 U.S. 1046, 109 S. Ct. 1954, 104 L. Ed. 2d 423 (1989); White v. Chemical Leaman Tank Lines, Inc., 490 F. 2d 1267 (4th Cir.1974); Moore v. McLean Trucking Co., 473 F. 2d 907 (4th Cir.1973); Gipson v. Supermarkets General Corp., 564 F. Supp. 50 (D.N.J.1983). The award also collaterally 0 estops plaintiff from maintaining his claims in the Second and Fifth Counts. E.g., Johnson v. Intern. Union Local No. 23, 828 F. 2d 961, 963 (3d Cir.1987); Torre v. Falcon Jet Corp., 717 F. Supp. 1063, 1066 (D.N.J.1989).

A plaintiff can maintain a Section 301 action to avoid an arbitration award only if he can prove both that his employer breached the collective bargaining agreement and that his union representative breached its duty of fair representation; failure to prove either element precludes a plaintiff's action. Del Costello, supra, 462 U.S. at 164-165, 103 S. Ct. at 2290-2291; citing United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 66-67, 101 S. Ct. 1559, 1565-1566, 67 L. Ed. 2d 732; Findley v. Jones Motor Freight, etc, 639 F. 2d 953, 958 (3d Cir.1981); Bellesfield v. RCA Communications, Inc., 675 F. Supp. 952

(D.N.J.1987). A plaintiff must establish the union's breach of duty before proceeding against his employer. Fajardo v. Foodtown Supermarkets, Inc., 702 F. Supp. 502, 508 (D.N.J.1988), citing United Parcel Service, Inc. v. Mitchell, supra, 451 U.S. at 62-63, 101 S. Ct. at 1563-1564.

1 Any Section 301 breach of contract/breach of duty action is governed by a six-month statute of limitations. Del Costello, supra, 462 U.S. at 172, 103 S. Ct. at 2294. Thus Fleming's claims in the Second and Fifth Counts are timebarred. This action was filed on December 27, 1989. The Arbitration Panel rendered its decision upholding Fleming's discharge on September 13, 1988. Fleming recognizes that he received notice that his discharge was upheld shortly after that decision was rendered. He saw his attorney almost immediately after receiving notice that his discharge had been upheld, well before the appeal of his criminal case was heard on March 15, 1989. This action was not filed until long after the six-month statute of limitations had run. Thus, the claim which Fleming would have to make and prove in this case to be successful in his attack upon the arbitration award, i.e., that Local 177 breached its duty of fair representation (which he does not allege) and that UPS breached the collective bargaining agreement, would in any event be time barred. Bonds v. Coca-Cola Co., 806 F. 2d 1324, 1326-27 (7th Cir.1986); see also, Lewis v. Intern. Broth. of Teamsters, Local 177, 826 F. 2d 1310, 1317 (3rd Cir.1987).

2 Even if Fleming had filed this lawsuit timely, his Second and Fifth Count claims would nevertheless be barred for failure to state a claim upon which relief could be granted. Fleming does not even allege, let alone establish, that Local 177 breached its duty of fair representation to him. He cannot show the arbitrary, discriminatory or bad faith action required to make out a case. Hines v. Anchor Motor Freight, supra; Del Costello v. Teamsters, supra; Vaca v. Sipes, 386 U.S. 171, 190, 87 S. Ct. 903, 916, 17 L. Ed. 2d 842 (1967).

Local 177 took his discharge grievance to arbitration and succeeded in delaying the arbitration hearing, at his request, for nearly two and one-half years until the trial court rendered its decision. Local 177 advised Fleming periodically of its many attempts to delay the arbitration hearing at his request and eventually of the likelihood that it could not gain further delays.

Plaintiff was well aware of his right to prepare his defense with Local 177 and to be present before the Arbitration Panel, but admits that he chose not to avail himself of this opportunity. Fleming, voluntarily and with full knowledge of his rights, decided 3 to forego testifying at his discharge arbitration hearing. Therefore, he cannot now be heard to complain that he was denied his right to appear at the discharge hearing.

Furthermore, there is no requirement that an arbitrator postpone a hearing pending resolution of criminal charges filed against a grievant. It has long been established that in labor arbitration proceedings governed by Section 301, questions of procedure (as well as evidence) are within the province of the arbitrator and not the courts. In John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S. Ct. 909, 11 L. Ed. 2d 898 (1964), the United States Supreme Court made clear that issues of procedure relating to substantive matters which are subject to arbitration are not for the courts, but for the arbitrator to decide.

Once it is determined, as we have, that the parties are obligated to submit the subject matter of a dispute to arbitration, 'procedural' questions which grow out of the dispute and bear on its final Disposition should be left to the arbitrator.

Although a party may resist arbitration once a grievance has arisen, as does Wiley here, we think it best accords with the usual purposes of an arbitration clause 4 and with the policy behind federal labor law to regard procedural disagreements not as separate disputes but as aspects of the dispute which called the grievance into play. Id. at 557-559, 84 S. Ct. at 918-919.

Fleming was candid about his desires for seeking delay of his arbitration case. He wanted to go to the Arbitration

Panel with an acquittal of all criminal charges, and then, when that failed, to go to the Arbitration Panel with a reversal of his conviction (which he eventually obtained, but only on the ground of denial of speedy trial). Although he was not entitled to a delay, he succeeded in obtaining one for two and one half years through the intercession of Local 177 and the refusal of the union Arbitration Panel members to hear his case. Moreover, it was not until July of 1988, after plaintiff's criminal trial had concluded and Judge Conte had rendered his opinion, that the Arbitration Panel decided to proceed with Fleming's grievance and scheduled the case for September, 1988. Despite Fleming's assertions to the contrary, the Arbitration Panel could not have been bound by an acquittal in the criminal proceedings. See Koenig v. Dept. of Taxation and Finance, N.Y.L.J., 5 p. 8, col. 2 (N.Y.Sup.Ct. June 28, 1976), aff'd., 56 A.D. 2d 773, 392 N.Y.S. 2d 376 (N.Y.App.Div.1977) (affirming trial court's denial of motion to vacate arbitration award which upheld grievant's discharge where, due to the divergent standards of proof involved, an arbitrator refused to give grievant's acquittal on criminal charge the preclusive effect of collateral estoppel).

Therefore, Fleming's claims in the Second and Fifth Counts are barred against UPS, Fox and O'Keefe, who are entitled to summary judgment on the claims asserted against them.

II.

CLAIMS AGAINST AAPGC AND ITS JUDGES MEMBERS.

A. The Law of the State of New Jersey Is Preempted by § 301 of the Labor Management Relations Act of 1947; Federal Common Law Is Controlling.

A reading of the complaint demonstrates that Fleming's claims against the AAPGC and its panel members are based on alleged violations of the contract between Local 177 and UPS. Count Two, paragraph 2 alleges that the AAPGC "is

a committee set up as a result of a contract between plaintiff's union, IBT Local 177, and defendant United Parcel Service, Inc., to hear grievances and discharge matters filed on behalf of members of UPS." 6 In paragraph 15, Fleming alleges that his "discharge, as upheld by the Grievance Committee, was arbitrary, illegal, contrary to public policy and constituted a denial of plaintiff's rights under the provisions of the . . . [collective bargaining agreement]". Count Five, paragraphs 2 and 3, allege interference with Fleming's "employment contractual rights."

The claims which plaintiff alleges against the AAPGC and its panel members emanate from the collective bargaining agreement and require its interpretation. Hence, they purport to state a federal cause of action under § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, which states:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

See, Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S. Ct. 1904, 85 L. Ed. 2d 206 (1985); Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S. Ct. 1877, 100 L. Ed. 2d 410 (1988).

7 Further evidence that Fleming is alleging a federal claim for violation of a labor agreement is that the "public policy" violated by his discharge, as sustained by the Committee, arises from the terms of the collective bargaining agreement itself, specifically the grievance and arbitration provisions calling for a hearing when a grievance is filed by the Union. Also, Fleming contends that Articles 44 (Grievance and Arbitration), 45 (Seniority) and 56 (Retirement Plan) of the Union contract were violated by the Committee when it proceeded to ...


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