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June 30, 1994



The opinion of the court was delivered by: JOYCE HENS GREEN

Plaintiff, United Parcel Service, Inc. ("UPS"), initiated this action against defendant, International Brotherhood of Teamsters, AFL-CIO ("IBT"), pursuant to the Labor Management Relations Act ("LMRA"), codified at 29 U.S.C. § 185 et seq. UPS claims that IBT called a nationwide work stoppage on Monday, February 7, 1994 in violation of the no-strike provision of the parties' collective bargaining agreement. IBT filed a two-count counterclaim alleging that UPS violated § 502 of the LMRA and breached the collective bargaining agreement. The parties have filed dispositive motions directed at each others' claims. *fn1" Oral argument was heard on these motions on May 27, 1994. For the reasons expressed below, both motions are granted and this case is dismissed.

 I. Background

 UPS is in the nationwide package pickup and delivery business. In the fall of 1993, the Teamsters United Parcel Service National Negotiating Committee ("NNC"), acting on behalf of the IBT and its local unions, entered into a collective bargaining agreement with UPS. This agreement, known as the National Master United Parcel Service Agreement ("Agreement"), provides the terms and conditions of employment for IBT members employed by UPS during the period August 1, 1993 *fn2" through July 31, 1997.

 Article 8 of the Agreement sets forth the mandatory grievance and arbitration procedure for questions of interpretation of the Agreement. In addition, it prohibits any work stoppage or lockout prior to completion of the grievance and arbitration procedures. *fn3"

 IBT claims that during the negotiations for the terms of the Agreement, the Safety and Health Subcommittee of the NNC specifically addressed the maximum weight of packages. Counterclaims P 6. IBT further asserts that UPS representatives "promised and represented. . . that UPS had no intention of increasing its applicable maximum weight rule during the term of the Agreement then being negotiated." Counterclaims P 7. IBT avers that based on that representation, it refrained from insisting upon a provision specifically addressing the maximum package weight and believed that the maximum package weight permitted by the Agreement was 70 pounds. Counterclaims P 8. It is undisputed that there is no provision in the Agreement expressly addressing the maximum package weight.

 Sometime prior to January 12, 1994, UPS informed the IBT that UPS would be picking up and delivering packages weighing up to 150 pounds beginning February 7, 1994. UPS alleges that it attempted to discuss the implementation of this new service with IBT but the parties were unable to resolve their differences. Complaint P 10.

 UPS asserts that during the week of January 31, 1994, IBT threatened to call a nationwide work stoppage beginning Monday, February 7, 1994 unless UPS did not implement the new service on that date. Complaint P 16. On Friday, February 4, 1994, UPS sought and obtained a Temporary Restraining Order ("TRO"), which prohibited IBT from, inter alia, encouraging or participating in any strike, picketing, work stoppage or walkout in connection with UPS's increase in weight restriction for the pickup and delivery of packages from 70 pounds to 150 pounds. The TRO also required UPS to arbitrate at the request of IBT.

 Plaintiff further asserts that prior to February 7, 1994, and after the February 4, 1994 TRO, the IBT directed local unions to strike, picket or walkout on February 7, 1994 over UPS's new weight restriction policy. Complaint P 18. Numerous IBT members commenced a strike on February 7, 1994 and UPS filed a motion for contempt of the TRO that same day. At approximately 6 p.m. that evening, after the Court began a hearing on the motion for contempt, the parties agreed to the procedures to be used to resolve their differences regarding the increase in maximum weight. As part of the settlement, UPS reserved the right to bring an action for damages resulting from the strike. UPS did so, commencing this action two days later.

 The sole count in the complaint alleges that the strike was in violation of the no-strike provision of the Agreement. UPS seeks compensatory damages for the actual economic harm suffered on the day of the strike and for temporary and permanent loss of customer confidence and goodwill resulting from the strike. UPS also seeks punitive damages for "Defendant's willful, wanton, deliberate, knowing and egregious instigation and direction of an unlawful strike." Complaint at 8.

 IBT filed a two-count counterclaim. In Count I, the IBT raises a claim pursuant to § 502 of the LMRA to recover lost wages and other compensation which it claims resulted from UPS's implementation of the revised weight rule notwithstanding the abnormally dangerous working conditions it presented. Count II asserts that the 70 pound weight limit was a custom and practice under the preceding collective bargaining agreements and seeks to reform the Agreement to carry forward this custom as a binding term of the Agreement.

 II. Discussion

 In viewing a motion to dismiss or for judgment on the pleadings, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). At this stage, the Court must accept as true the factual allegations of the complaint, Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984), and draw from them all reasonable ...

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