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November 3, 1972


The opinion of the court was delivered by: McGARR, District Judge.


This is an action for damages and reinstatement which alleges that defendant wrongfully discharged plaintiff from his employment. This action was originally brought in the Circuit Court of Cook County, but was removed to this Court. Jurisdiction was predicated upon Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Several facts are not in dispute. Defendant is engaged in interstate trucking and operates a terminal in Chicago. Plaintiff was employed by defendant as a local cartage driver from June 17, 1957 until January 5, 1971. Defendant's local cartage drivers at the Chicago location are represented for collective bargaining purposes by Local Union No. 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. The Union is not a party to this action. Defendant and the Union are parties to an agreement covering the local cartage drivers. The agreement permits discharge only upon just cause. Plaintiff's duties required him to transport goods within the Chicago commercial zone. These duties occasionally required plaintiff to transport hazardous materials. Plaintiff has a history of diabetes mellitus which requires insulin for control. On January 1, 1971, certain Department of Transportation regulations became effective. Regulation 391.41(b)(3) established physical qualifications for drivers. It stated:

  (b) A person is physically qualified to drive a
      motor vehicle if he —
  (3) has no established medical history or
      clinical diagnosis of diabetes mellitus
      currently requiring insulin for control.
49 C.F.R. § 391.41(b)(3)

Regulation 391.2 provided certain exemptions. It stated:

  (a) Intra-city operations. The rules in this part
      do not apply to a driver wholly engaged in
      exempt intra-city operations as defined in §
      390.16 of this Chapter. 49 C.F.R. § 391.2(a)
      (Emphasis added.)

Regulation 390.16 provided:

  § 390.16 Exempt intra-city operation. The term
  "exempt intra-city operations" means a vehicle or
  driver used wholly within a municipality, or the
  commercial zone thereof, as defined by the
  Interstate Commerce Commission, and transporting —
    (b) Property consisting of hazardous materials
  of a type and quantity that require the vehicle
  to be marked or placarded under § 177.823 of this
  title and that weigh less than 2,500

  pounds in the case of one dangerous article, or
  5,000 pounds in the case of more than one
  dangerous article.

49 C.F.R. § 390.16.

On January 5, 1971, defendant disqualified plaintiff as a driver. This action was taken pursuant to the above regulations. Defendant then offered plaintiff several other jobs. Plaintiff declined, as acceptance would result in relinquishment of Union benefits and seniority. It is disputed whether plaintiff then attempted to file a grievance with his Union. It is undisputed that no such grievance was ever processed.

Defendant has now filed a motion to dismiss or, in the alternative, for summary judgment. The basis of the motion to dismiss is failure to state a claim upon which relief can be granted. Defendant asserts that the complaint is defective because it fails to allege an essential element — either that plaintiff submitted his grievance and exhausted the contractual grievance and arbitration procedure, or that the Union breached its duty of fair representation. In support of this proposition, the defendant cites this Court to the cases of Lomax v. Armstrong Cork Company, 433 F.2d 1277, 1280-1281 (5th Cir., 1970) and Braun v. Truck Drivers and Helpers Local No. 395, Baltimore, Maryland, 264 F. Supp. 776, 777 (D.Md., 1967). These cases are based upon Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). At page 186, 87 S.Ct. at page 914, the Vaca Court stated:

    For these reasons, we think the
  wrongfully-discharged employee may bring an
  action against his employer in the face of a
  defense based upon the failure to exhaust
  contractual remedies, provided the employee can
  prove that the union as bargaining agent breached
  its duty of fair representation in its handling of
  the employee's grievance. Vaca at 186, 87 S.Ct. at
  page 914. (Emphasis added.)

We agree with plaintiff's contention that that case stands for the proposition that an employee must prove a breach of the duty of fair representation once it is raised as an affirmative defense. Under the Federal practice of notice pleading, it ...

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