Cappellano v. Massachusetts Bay Transportation Authority
Cappellano v. Massachusetts Bay Transportation Authority
Opinion of the Court
In this action brought by the plaintiff against the union for breach of its duty of fair representation, and against the Massachusetts Bay Transportation Authority
The plaintiff was hired as a part-time bus driver by the MBTA in 1985. During the 112 weeks that he was employed, he had missed more than sixty days of work and had received a number of suspensions for absenteeism. On August 19, 1987, he was suspended indefinitely, pending a recommendation for discharge. A grievance was filed by the plaintiff’s union representative, and the latter obtained a conditional reinstatement. The plaintiff would have to take a physical exam including a screening for alcohol, would have to maintain perfect attendance for the next two years, and would have to start as a new employee. Although the union claimed that one of the requirements was that the plaintiff would have to take a drug test, and that he consented to do so, the plaintiff maintains that he had no notice prior to arriving at the examination that it would include a screening for drugs.
He claims, contrary to the judge’s conclusion, that he did not consent and that his lack of consent creates a genuine issue of material fact which precludes the allowance of the defendants’ motions. Whether the plaintiff consented prior to his coming to the examination is not, however, determinative of his claims against the union or against the MBTA.
In his deposition, the plaintiff admitted that he was informed by the doctor, prior to his physical, that the exam
The union pursued the grievance through the MBTA’s director of human resources and its general manager, but declined to seek arbitration. The plaintiff was informed that he had the right to appeal that decision to the membership at a meeting. Although the plaintiff attended the meeting, he did not appeal.
1. Claim against the union for breach of duty of fair representation. Under § 22.8 of the constitution of the Amalgamated Transit Union, parties “must not take legal action or go into court until they have exhausted all their rights within the Union.” See Azzi v. Western Elec. Co., 19 Mass. App. Ct. 406, 408-409 (1985). The plaintiff, not having appealed and hence not having exhausted his union remedies, argues that he comes under an exception that permits “an employee [to] bring an action against his employer for a violation of a collective bargaining agreement if he alleges and shows that the union has failed in its duty to represent him fairly . . . ” id. at 409.
Although the plaintiff claimed hostility on the part of the union, there is nothing in the record to substantiate his claim. The only example of hostility cited by the plaintiff was that James Lydon, his union representative, “was getting a little bit disturbed that I was calling him on a regular basis and more or less told me so.” The plaintiff could muster no other acts of hostility.
Nor did the union arbitrarily ignore a meritorious grievance which the plaintiff describes as “a presumptively unconstitutional drug test.” At the time of his discharge, the law relating to drug tests had not as yet evolved, and there was no presumption of unconstitutionality.
2. Action against MBTA. Since the plaintiff has failed in his claim that the union was in breach of its duty of fair
Judgment affirmed.
The plaintiff asserted other claims against each defendant, but on appeal he makes no argument with respect to these claims within the meaning of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
When asked whether he had any conversation with the doctor about the physical examination, the plaintiff answered as follows:
A. “Yes. He told me it was going to require drug and alcohol screening.”
Q. “Now, that’s before he took the sample; isn’t that correct?”
A. “That’s before he took the sample.”
Q. “Did you make any response?”
A. “I objected. I told him I didn’t think it was required, but he told me it was a voluntary quit if I didn’t take the test.”
Q. “Did you attempt to get back to Mr. Lydon [executive board member of the union]?”
A. “No, I couldn’t because it was eight o’clock in the morning and I was anxious to go back to work.”
Q. “Did you ask the doctor if the appointment could be rescheduled to a later time and date so that you could consult with your representative or with Mr. Lydon about the drug or alcohol screen?”
A. “No, I didn’t.”
Even the law as it has later developed does not appear to help the plaintiff. In Johnson v. Massachusetts Bay Transp. Authy., 418 Mass. 783, 786 (1994), the plaintiff bus driver who had been previously suspended was reinstated subject to a one-year probationary period during which any rule violation would result in his discharge. After a passenger reported that the driver of a particular route had alcohol on his breath, the plaintiff was instructed to appear the next morning for a physical examination which would include urine and blood tests. He orally gave permission to a physician for a drug and urine test. He claimed he agreed to the drug test only because of the coercion that he would have been terminated if he did not consent. Although, as in the present case, a written consent would have
The plaintiff argues that he is free to pursue his action against the MBTA only if the union has breached its duty of fair representation. Accordingly, we do not consider whether there is any other basis for a claim against the employer as urged by the union to defeat the claim against it.
Reference
- Full Case Name
- Robert W. Cappellano v. Massachusetts Bay Transportation Authority & others
- Cited By
- 3 cases
- Status
- Published