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DEFILLIPPES v. STAR LEDGER

September 13, 1994

JOSEPH DEFILLIPPES, Plaintiff,
v.
THE STAR LEDGER, Defendant.



The opinion of the court was delivered by: H. LEE SAROKIN

 Sarokin, District Judge

 Before the court are defendant's motion for summary judgment and plaintiff's cross-motion for summary judgment.

 Background

 Plaintiff Joseph DeFillipes ("DeFillipes") was employed as a newspaper delivery driver by defendant Newark Morning Ledger Company, sued here as The Star Ledger, ("the Ledger") and also served as an official of the Newspaper and Mail Deliverers' Union of New York and Vicinity ("the Union"), which represents some Company employees. DeFillipes delivered The Star Ledger newspaper for over twenty years.

 The collective bargaining agreement ("the Contract") between the Union and the Ledger contains a grievance and arbitration clause but no progressive discipline clause. The Contract permits termination for "just cause," but does not define the phrase.

 The Contract also permits the Ledger to adopt rules and regulations not in conflict with the Contract. Office Rule No. 21, posted by the Ledger, directs "Delivery is to be made in reverse order of the listings on the manifest unless permission is granted by the General Foreman."

 The Ledger discharged DeFillipes on July 28, 1992 for allegedly making unauthorized deliveries to a drop not on his manifest. Plaintiff received no express warning prior to his discharge.

 The Union submitted plaintiff's discharge to arbitration in accordance with the Contract. *fn1" Plaintiff was not himself a party to the proceeding. The stipulated question for arbitration read "Was the discharge of Joseph DeFillipes for just cause; if not, what shall be the remedy?"

 Before the arbitration hearing was held, plaintiff filed an unfair labor practice charge with the National Labor Relations Board ("N.L.R.B.") alleging that the Ledger had discharged him because of his union activism. The N.L.R.B. deferred further action on the charge pending the arbitration proceeding.

 During the arbitration hearing, in which the Union and the Ledger were represented by counsel, both sides called witnesses, conducted cross-examinations, and made closing arguments. Plaintiff himself testified. The arbitrator issued a decision and award on December 3, 1992 concluding that the Ledger had discharged plaintiff for just cause. The Union did not seek judicial review of the award and is not a party to this case.

 After arbitration, plaintiff asked the N.L.R.B. not to defer to the award and submitted a brief in support of this position. Nonetheless, on August 12, 1993 the N.L.R.B. Regional Director decided to defer to the arbitrator's decision, finding that the arbitration had been "fair and regular," and thus declined to issue a complaint regarding plaintiff's charge of anti-union bias by the Ledger. Plaintiff's appeal to the N.L.R.B. General Counsel was denied on October 25, 1993. On November 30, 1993 and upon plaintiff's request for reconsideration, the N.L.R.B. General Counsel affirmed the deferral to the arbitrator's award and the refusal to issue a complaint against the Ledger.

 Meanwhile, on May 10, 1993 plaintiff filed a second unfair labor practice charge alleging that the Union had breached its duty of fair representation in its conduct of the arbitration hearing. On June 30, 1993 the N.L.R.B. Regional Director refused to issue a charge against the Union, finding that "the Union represented [plaintiff] at the arbitration hearing . . . presented witnesses and evidence, and forcefully argued on [plaintiff's] behalf." Plaintiff appealed the Regional Director's refusal to issue a complaint, but on July 28, 1993 the N.L.R.B. General Counsel denied the appeal.

 On or about March 5, 1993, plaintiff commenced this action in the Superior Court of New Jersey, Chancery Division, Essex County. On March 30, 1993 defendant filed a Notice of Removal and Certificate of Service with this court. On July 6, 1993 this court denied defendant's motion to ...


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