CLAUDE B. TOWNSEND JR v. AMALGAMATED TRANSIT UNION DIVISION 540

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1786-11T4

CLAUDE B. TOWNSEND, JR.,

Plaintiff-Appellant,

v.

AMALGAMATED TRANSIT UNION

DIVISION 540,

Defendant-Respondent.

December 18, 2012

Argued October 10, 2012 - Decided

 
Before Judges Alvarez and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1711-10.

Claude B. Townsend, Jr., argued the cause pro se.

Arnold Shep Cohen argued the cause for respondent (Oxfeld Cohen, P.C., attorneys; Mr. Cohen, of counsel; Timothy C. King, of counsel and on the brief).

PER CURIAM

Plaintiff Claude B. Townsend, Jr., a former bus driver for New Jersey Transit Mercer, Inc. (New Jersey Transit), appeals the grant of summary judgment dismissing his complaint against defendant Amalgamated Transit Union, Division 540 (the union), the union to which he belonged while employed there. We affirm.

Plaintiff asserts as error the following:

CLAIMANT['S] EMPLOYMENT WAS TERMINATED BY NEW JERSEY TRANSIT MERCER INC. WHILE UNDER THE CARE OF A PHYSICIAN FOR WORK-RELATED INJURIES. CLAIMANT WAS DISCHARGED FROM HIS TREATING PHYSICIAN ON DECEMBER 16, 2009. CLAIMANT WAS WRONGFULLY TERMINATED BEFORE DECEMBER 16, 2009. AMALGAMATED TRANSIT UNION DIVISION 540 AND NEW JERSEY TRANSIT MERCER INC., ARE PARTIES TO A COLLECTIVE BARGAINING AGREEMENT, WHICH REQUIRES BINDING AND FINAL ARBITRATION OF GRIEVANCES. AMALGAMATED TRANSIT UNION DIVISION 540 IS BOUND BY CONSTITUTION AND GENERAL LAWS. AMALGAMATED TRANSIT UNION DIVISION 540 FAILED TO REPRESENT OR FILE A GRIEVANCE FOR ARBITRATION ON CLAIMANT[']S BEHALF. THIS CONSTITUTES GOOD CAUSE ATTRIBUTABLE TO THE WORK; THEREFORE, THIS CASE SHOULD BE REVERSE[D] FOR A TRIAL BY JURY OR REINSTATEMENT WITH PAY, SENIORITY AND DAMAGES OF $700,000.

Plaintiff, who is self-represented, seeks not only a reversal of the award for summary judgment, but "arbitration, or a trial by jury, or reinstatement with pay, seniority, and damages of $700,000." The only relief we can address on appeal is the grant of summary judgment. We cannot address plaintiff's other prayers for relief.

On January 29, 2008, plaintiff suffered an injury to his shoulder and wrist while on the job. For reasons not explained in this record, an attorney only briefly represented plaintiff in pursuing workers' compensation. No actual petition for workers' compensation was filed on his behalf until December 22, 2008. The action was dismissed on October 4, 2010, for "failure to sustain the burden of proof." The union does not represent employees or otherwise become involved in matters related to workers' compensation.

Plaintiff worked from the January 29, 2008 incident until August 28, 2008. Between September 2, 2008, and March 2009, he received state disability benefits. From March 2009 through September 2009, plaintiff received temporary disability allowance (TDA) from New Jersey Transit. On September 24, 2009, his acting supervisor, Joseph Butterfield, notified him by letter that his TDA expired on September 2, 2009, and that on September 30, 2009, his vacation days would also be exhausted. The letter stated that if plaintiff did not return to work by October 1, 2009, he would be considered unavailable for work and assessed an attendance occurrence for each day he did not appear. An employee is allowed twenty days of attendance occurrences before being terminated. The letter also requested that plaintiff provide medical documentation regarding his ability to return to work. Inexplicably, plaintiff did not respond.

On October 1, 2009, New Jersey Transit held a hearing attended by plaintiff, Butterfield, and union representative Walter Williams. At that hearing, plaintiff requested a form for Family Medical Leave, and the attendance policy was discussed, including the contents of Butterfield's September 24 letter. Thereafter, Butterfield made several attempts to contact plaintiff, to which plaintiff was wholly unresponsive.

Butterfield left voicemails and wrote letters to plaintiff advising that a November 3, 2009 hearing had been scheduled as a First Step hearing pursuant to the applicable collective bargaining agreement between New Jersey Transit and the union, at which time plaintiff would be expected to show cause why he should not be separated from service. The hearing was rescheduled to November 6 because of a conflict with the union representative. Certified mail receipts confirmed that plaintiff received both the October 23 and November 2, 2009 letters regarding the First Step hearing date. The union vice-president appeared on November 6, 2009; plaintiff did not. He does not dispute that he was given sufficient notice of the changed date.

A second First Step hearing was scheduled for November 24, 2009, to address plaintiff's excessive absenteeism and "[f]ailure to [a]ppear at [First] Step hearing dated November 6, 2009." On November 24, 2009, plaintiff was terminated from employment. In a November 14, 2009 letter, plaintiff acknowledged never filing a grievance as to any of these proceedings. The filing of a grievance is necessary in order for the union to become involved on behalf of a member in action taken against the employer.

Butterfield sent plaintiff a termination letter dated December 2, 2009. Plaintiff did not file a grievance as to that notification of action by the employer either. Instead, on December 4, he wrote to New Jersey Transit requesting information about his status as an employee, his pension plan, and the availability of social services. On December 16, plaintiff sent a letter to his union president Michael Cribb requesting that the union make inquiries of New Jersey Transit regarding assistance from either unemployment or social services. Cribb does not recall seeing such a letter, however, it said nothing about the filing of a grievance.

As the trial judge stated in rendering his findings, succinctly summarizing the facts and circumstances as described above:

Plaintiff suffered an injury on the job which could have been covered by worker's compensation, but according to the defendant plaintiff did not follow proper procedures. Rather, after the injury, plaintiff received six months disability payment and six months of temporary disability allowance payments. After his disability time expired, the employer enforced its no fault attendance policy which resulted in plaintiff's termination.

Under the no fault attendance policy, workers are permitted six months of disability payment from the State of New Jersey, then six months temporary disability assistance from the New Jersey Transit, then workers are allowed to exhaust all accrued vacation time. Once . . . temporary disability and vacation time allotment are exhausted, New Jersey Transit workers will be terminated after 20 days of non-attendance. The defendant, Division 540, states that its officers consistently attempted to contact plaintiff and offer their assistance throughout the process, but that Mr. Townsend never responded and never filed a grievance regarding his termination.

The court also found as a fact that plaintiff failed to appear at the November hearings the employer scheduled. As the court stated, plaintiff contended that although no grievance was filed, "the union knew about plaintiff's disputes and differences with the employer and, therefore, had a duty to represent him." Additionally, plaintiff incorrectly perceived the union to be required to represent him in unrelated matters ranging from workers' compensation to child support proceedings. Not surprisingly, the court concluded that defendant had a duty to represent plaintiff only in the job termination process.

That duty, however, was never triggered because plaintiff did not file a grievance regarding his job loss as required by the collective bargaining agreement. The judge concluded that plaintiff entirely failed to demonstrate that there were "genuine issues of material fact regarding the union's representation."

Moving on to consider the applicable law, the judge reiterated that a breach of a union's duty of fair representation of its members occurs when a union's conduct is "arbitrary, discriminatory or in bad faith." Vaca v. Sipes, 386 U.S. 171, 190, 87 S. Ct. 903, 916, 17 L. Ed. 2d 842, 857 (1967). Plaintiff did not demonstrate that such a breach occurred. Even according plaintiff all favorable but legitimate inferences that could be drawn from the facts, it was clear that the union fulfilled its legal obligation to plaintiff. Therefore, the union was entitled to judgment as a matter of law. See R. 4:46-2(c).

We review a trial court's decision on a summary judgment motion employing the same standard as the trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). We concur that viewing the evidence in the light most favorable to the nonmoving party, plaintiff has fallen far short of establishing material issues of facts or a colorable claim under law for relief against the union. In the absence of a grievance, or any other appropriate response to the numerous communications made by New Jersey Transit as well as the union, the union had no obligation to do anything further on behalf of plaintiff.

Affirmed.