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TOLENTINO v. ERICKSON

November 3, 1981

Manolo E. TOLENTINO, Plaintiff,
v.
Charles ERICKSON, Wented Realty Corp., and Office & Professional Employees International Union, Local 153, Defendants



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

On March 7, 1979, plaintiff commenced this removed action, seeking to vacate an arbitration award made against him, to regain his former position as cashier/clerk at the Wentworth Hotel in New York City, and to recover back pay and damages for emotional distress on account of his allegedly wrongful and discriminatory discharge on November 2, 1978. Plaintiff also named as a defendant his union, Local 153 of the Office & Professional Workers International Union ("union"), affiliated with the New York Hotel & Motel Trades Council, which had a collective bargaining agreement with the hotel at the time in question. The agreement provided for plaintiff's wages, hours and other terms and conditions of employment. Defendants' removal petition invoked the Court's jurisdiction under § 301 of the National Labor Management Relations Act, 29 U.S.C. § 185. At the close of discovery, defendants joined in moving for a summary judgment dismissing the complaint. For the reasons which follow the motion is granted.

 The affidavits and depositions on file disclose the following: Prior to the evening of November 2, 1978, plaintiff, a Filipino, had worked at the hotel as cashier/clerk on the afternoon shift (3:30 p.m. to 11:30 p.m.) since 1971, and had an unblemished work record. He also had never experienced any difficulty with the hotel's manager, Erickson, during the two or so years the latter had been there. On that evening, Miller, a clerk who worked the midnight shift following plaintiff's (11:30 p.m. to 7:30 a.m.), came in early and told plaintiff he was no longer working at the hotel and would not work that night. Plaintiff then phoned Erickson at home on Long Island and told him what happened. After speaking with Miller, Erickson spoke again with plaintiff.

 The precise sequence of what was said is in dispute. Plaintiff's version, which we accept as true for purposes of this motion, is that Erickson straightaway ordered plaintiff to continue to work through Miller's shift, and told plaintiff that if he refused Erickson would make sure to fire him. Plaintiff replied that Erickson did not need to threaten but only to tell him to work. Plaintiff maintains he never told Erickson he would not work overnight, but only that if Erickson threatened him, he wouldn't work "because I don't feel like working under threat." Erickson apparently took this as a refusal, said, "Well that's it," and plaintiff hung up. About five minutes later Erickson called and told plaintiff he would not be needed at the hotel beginning the next day. Before calling, Erickson had contacted Madonna, the day shift clerk (7:30 a.m. to 3:30 p.m.), and he came and relieved plaintiff at 11:30 p.m., taking over Miller's shift.

 The next day plaintiff sought advice from the union about what to do and one of its business agents, Tronolone, immediately contacted him. A few days after Erickson denied Tronolone's request for reinstatement, plaintiff, Erickson, two of the hotel's principal owners, and Tronolone held a meeting at the latter's request to resolve the matter informally. Plaintiff testified on deposition that it was agreed he would be reinstated to his former shift with two days' back pay, but Erickson allegedly reneged, refusing to let plaintiff work until Erickson had readjusted the schedules and called for him. A complaint to Tronolone prompted phone calls to the hotel. Further discussion ensued between Tronolone and plaintiff in which, essentially, plaintiff refused to take the midnight shift, which was available to him, except on a guarantee he would be reinstated to his afternoon shift, which the hotel would not give.

 At this point, at plaintiff's request, Tronolone brought the matter to arbitration before the Impartial Chairman, as provided in the collective bargaining agreement. Tronolone and a union lawyer represented plaintiff at the hearing on November 29, 1978, at which plaintiff and Erickson testified about their conversations on the evening of November 2. On December 7, 1978 the Impartial Chairman rendered his decision that plaintiff's refusal to work Miller's shift was "unjustified" in the "emergency" circumstances presented, and therefore Erickson had "just cause" to dismiss him.

 Following the decision, which plaintiff knew about (though he had difficulty in obtaining a copy until January 1979 after repeated requests), Tronolone refused plaintiff's request to seek further conciliation or reconsideration of the arbitrator's award, telling plaintiff "You have no evidence." Plaintiff learned that Tronolone visited the hotel a few times after this but never in connection with plaintiff's case.

 On the basis of the foregoing, plaintiff asserts that the union did not diligently protect plaintiff's rights during the controversy, in breach of its duty of fair representation of all union members, and that the arbitrator's determination that the collective bargaining agreement was not breached was capricious and, accordingly, should be set aside. He also alleges conspiracy between the hotel's management and the union which resulted in plaintiff's dismissal, and that the hotel discriminated against him on account of his national origin. These contentions are without merit.

 It is undisputed that a collective bargaining agreement governed the relations between plaintiff and his employer, the hotel. Paragraph 15 of the agreement provided in part that:

 
"All complaints, disputes or grievances arising between the parties hereto involving questions of interpretation or application of any clause of this agreement, or any acts, conduct or relations between the parties, directly or indirectly, which shall not have been adjusted by and between the parties involved shall be referred to a permanent umpire to be known as the Impartial Chairman, and his decision shall be final and binding upon the parties hereto."

 It is also well-settled law that where, as here, the parties have bargained for submission of their contractual disputes to an arbitrator for a final, binding determination, "the proper approach," United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S. Ct. 1358, 1360, 4 L. Ed. 2d 1424 (1960), is to decline to review the merits of the award. In Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S. Ct. 1048, 47 L. Ed. 2d 231 (1976), however, the Supreme Court delineated the following exception to the rule customarily according finality to arbitration awards:

 
"(Enforcement) of the finality provision (of a collective bargaining agreement) where the arbitrator has erred is conditioned upon the union's having satisfied its statutory duty fairly to represent the employee in connection with the arbitration proceedings." 424 U.S. at 571, 96 S. Ct. at 1060.

 In the present case, plaintiff has provided no basis for the Court to withhold finality from the arbitrator's decision and permit plaintiff to seek further remedies against his union or former employer. First, there is no question that plaintiff has not demonstrated, as he must, see Hines v. Anchor Freight, supra, 424 U.S. at 570, 96 S. Ct. at 1059, that the arbitrator's determination to uphold the discharge under the collective bargaining agreement was erroneous. In relevant part, P 8(F) of the agreement stated:

 
"It is agreed that employees will work a reasonable amount of overtime and on the sixth day when requested to do so at the rate of ...

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