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ARTEAGA v. BEVONA

October 16, 1998

ARMANDO ARTEAGA, Plaintiff, against GUS BEVONA, PRESIDENT, LOCAL 32B-32J, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO and INTERNATIONAL SERVICE SYSTEMS, INC., Defendants.


The opinion of the court was delivered by: GLEESON

MEMORANDUM AND ORDER

 JOHN GLEESON, United States District Judge:

 This litigation arises from defendant International Service Systems, Inc.'s ("ISS") dismissal of plaintiff Armando Arteaga, and the subsequent decision against Arteaga in an arbitration proceeding at which Local 32B-32J of the Service Employees International Union (the "Union") represented Arteaga. Arteaga has brought a hybrid § 301/fair representation claim, alleging in his complaint that (1) the Union breached its duty of fair representation, and (2) ISS's dismissal of Arteaga breached the collective bargaining agreement, thereby violating Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185.

 Defendants ISS and the Union have moved for summary judgment. For the reasons set forth below, the motion is granted.

 FACTUAL BACKGROUND

 A. Plaintiff's Termination from ISS

 Defendant ISS is in the business of providing contract cleaning and maintenance services to owners, managing agents and tenants of commercial property in the New York metropolitan area. (Union Rule 56.1 Statement P 5.) In 1987, plaintiff Armando Arteaga was hired by a predecessor company of ISS, known as National Cleaning Contractors, *fn1" and began work as a porter in an office building at 1700 Broadway. Id. at P 17.) On April 20, 1993, after several years working at different buildings throughout New York City, Arteaga was assigned a permanent position as a porter at One Pierrepont Plaza in Brooklyn, New York. (Id. PP 17-25.)

 The incident that led to plaintiff's dismissal from ISS occurred on June 23, 1993. On that day, plaintiff was assigned to clean the ninth floor cafeteria after a party held by tenant Morgan Stanley. (Union Rule 56.1 Statement P 26; ISS Rule 56.1 Statement P 5.) While Arteaga was cleaning the Morgan Stanley cafeteria, a controversy emerged over Arteaga's handling of bottles of wine. According to David Cruz, the plaintiff's supervisor, plaintiff was spotted by the cafeteria manager removing two unopened bottles of wine and placing them into his cart. (Union Rule 56.1 Statement P 26.) This cafeteria manager then informed Cruz that plaintiff had taken the bottles. (ISS Rule 56.1 Statement P 6.)

 Plaintiff sets forth a different version of events. Plaintiff states that party guests placed empty or partially consumed bottles of wine into plaintiff's garbage cart during the party, and that plaintiff did the same after the party had ended. (Arteaga Dep. at 55, 59-60, 126.) Plaintiff then saw a female cafeteria employee who had taken two partially consumed bottles of wine out of the garbage and was pouring the contents of one bottle into the other. (Id. at 127.) The woman approached plaintiff, told him that there were several bottles of wine in the garbage, and said that plaintiff should "be careful with the bottles in the garbage." (Id. at 55, 59-60, 127.) According to Arteaga, Cruz appeared shortly thereafter and the woman informed Cruz that plaintiff should be more careful with wine bottles in the future. (Id. at 61.)

 On the same evening of the Morgan Stanley party, Cruz suspended Arteaga. (ISS Rule 56.1 Statement P 6.) Shortly thereafter, ISS terminated Arteaga's employment and informed him that he was being fired for stealing two bottles of wine from the party. (Id. P 7.)

 B. The Grievance Proceedings

 After his termination by ISS, Arteaga initiated grievance proceedings pursuant to a collective bargaining agreement. ISS is a member of the Service Employees Association ("SEA"), an organization comprised of cleaning and maintenance contractors in the New York area. (Itzla Aff. PP 8-9.) Since 1993, SEA has negotiated pattern collective bargaining agreements with the Union, *fn2" and individual employers have assented to be bound by such agreements. In January 1993, the Union and the SEA concluded negotiations of a pattern collective bargaining agreement known as the 1993 Building Agreement, to which ISS agreed to be bound. (Id. PP 10, 13-15.)

 Article V of the 1993 Agreement sets forth the "Grievance Procedure" for members of the Union. (Goldman Aff. Ex. A at 8-10.) Under this grievance procedure, there are three steps by which all employee grievances are handled prior to Arbitration. Under Step 1, a grievance is "taken up" directly by the employer and the Union. Under Step 2, if the employer and the Union are unable to resolve the grievance, it is then taken up by representatives of the SEA and the Union. If the grievance is still not resolved it proceeds to Step 3, by which either (1) both parties agree to refer the grievance to a Joint Union Association Committee, or (2) if both parties do not so agree, the grievance is automatically subject to binding arbitration under Article VI of the 1993 Agreement.

 Shortly after June 23, 1993, Arteaga approached his union delegate Dan Gross and filed a grievance alleging unjust discharge. (Itzla Aff. P 20; ISS Rule 56.1 Statement P 10; Arteaga Dep. at 65, 168) Mr. Gross discussed the grievance with Arteaga, and attempted to call David Cruz in order to help Arteaga get his job back. (Arteaga Dep. at 65-66.) Subsequently, a Step 1 grievance hearing was held between Mr. Gross for the Union and Fred Surace for the employer ISS. (Id. at 66-67, 172.) During the course of the hearing -- which apparently was held over the telephone (Gross Dep. at 17) -- Mr. Gross stated that the allegedly stolen wine had been in the garbage, and that Arteaga had done nothing wrong. (Surace Dep. at 68.) No resolution was reached, as ISS refused to reinstate Arteaga. Id. at 69; Gross Dep. at 18.)

 In accordance with the 1993 Agreement, a Step 2 meeting was then held on September 8, 1993. (Surace Dep. at 22; ISS Rule 56.1 Statement P 9.) Arteaga, his wife, Mr. Gross, Mr. Surace, and Fred Fisher -- a hearing officer appointed by the SEA -- were present at the Step 2 meeting. Mr. Surace stated ISS's position that Arteaga had been discharged for stealing two bottles of wine. (Surace Dep. at 24.) Arteaga testified that he had placed two bottles of wine in his garbage, but denied that he was stealing the bottles. (Surace Dep. at 25.) The Step 2 meeting also failed to produce any resolution, as ISS refused to reinstate Arteaga. The matter thus proceeded to arbitration. (Union Rule 56.1 Statement P 21; Surace Dep. at 28-29).

 C. The Arbitration Proceedings and Awards

 The arbitration of the grievance filed on behalf of Arteaga was initially scheduled to be held on June 13, 1995. At the request of ISS, this first scheduled date was adjourned, and the case was marked "peremptory" against ISS. (Union Rule 56.1 Statement P 32; Itzla Aff. P 22.)The arbitration was rescheduled for October 6, 1995, but that hearing was adjourned on the mutual consent of the Union and ISS. (Union Rule 56.1 Statement P 33; Itzla Aff. P 23.)

 The third scheduled date for the arbitration of Arteaga's grievance was January 15, 1996. Arteaga was present, as was Amy Spivak, *fn3" an attorney with the firm then known as Manning, Raab, Dealy & Sturm. Spivak was the Union's counsel assigned to represent Arteaga in connection with the arbitration proceedings. (Itzla Aff. P 26.) However, ISS did not appear at the January 15, 1996 hearing. Because the matter had already been marked "peremptory" against ISS, the Union requested that the arbitration proceed. Contract arbitrator Walter X. Stanton granted that request, and conducted the hearing ex parte. (Itzla Aff. P 27; Union Rule 56.1 Statement PP 37-38.)

 On January 18, 1996, Arbitrator Stanton issued a default award in which he ordered that ISS reinstate Arteaga to his former position at One Pierrepont Plaza, without loss of seniority. Arbitrator Stanton retained jurisdiction to determine the amount, if any, of back pay to which Arteaga was entitled. Arbitrator Stanton's award also stated that "the Employer may seek to reopen this case by providing to this Office within 14 days of date of affirmation a reason for its failure to ...


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