United States District Court, Southern District of New York
May 9, 2001
NASLIJI BOGA, ET AL., PLAINTIFFS,
TEMCO SERVICE INDUSTRIES, INC., ET ANO., DEFENDANTS.
The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge.
Plaintiffs bring this action against their former employer, Temco
Service Industries, Inc. ("Temco"), and their union, Local 32B-32J,
Service Employees International Union (the "Union"). They assert a hybrid
claim of breach of contract by Temco and breach of the duty of fair
representation by the Union under their collective bargaining agreement
("CBA"). Temco has moved to dismiss the complaint for failure to state a
claim upon which relief may be granted. Plaintiffs have not responded to
According to the complaint, plaintiffs were terminated from their
employment by Temco on February 14, 2000, allegedly on the ground that
they had taken food from a pantry area inside tenant premises in the
building where they were employed by Temco as building cleaners.
Temco took the position that this constituted just cause within the
meaning of the CBA, which therefore permitted the terminations.
Plaintiffs allegedly complained to the Union business agent. The agent
allegedly told them that she was afraid that the issues underlying the
terminations would cause the building owner to terminate Temco's contract
and said that she was not interested in pursuing plaintiffs' case.
Plaintiffs nevertheless grieved their terminations. The Union failed to
show up before the arbitrator on the first two occasions the case was
called. On the third occasion, however, an attorney for the Union
appeared and briefly spoke to plaintiffs. The arbitration hearing then
went forward. Plaintiffs claim that the Union lawyer told the arbitrator
at one point that "the Union is afraid that the Company is going to lose
its contract at the building."*fn1 After a two hour hearing, the
arbitrator sustained the terminations of the plaintiffs and three other
former employees. Subsequently, the Union rejected an entreaty from
plaintiffs' present counsel that the Union seek to vacate the arbitration
award. In Vaca v. Sipes,*fn2 the Supreme Court recognized the existence
of a hybrid claim under Section 301 of the Labor Management Relations
Act*fn3 in which a discharged member of a collective bargaining unit
asserts that the employer breached the CBA and the union failed fairly to
represent the aggrieved employee through the contractual mechanisms for
remedying the disciplinary action.
As the two claims are inextricably intertwined, the claim must be
dismissed if the plaintiff fails to allege facts sufficient to support
claims both that the employer breached the CBA and that the union
breached the duty of fair representation.*fn4
Temco contends that a Section 301 claim will lie against a union only
if the union represented the employee "in such a discriminatory,
dishonest, arbitrary, or perfunctory fashion as to breach its duty of
fair representation."*fn5 Mere negligence is not enough.*fn6 And there is
no quarrel with that general principle. The problem here, however, is
that this complaint — particularly the allegations that the
business agent made clear to plaintiffs that the Union was not interested
in pursuing plaintiffs' grievance,*fn7 that the Union failed to show up for
the hearing on the first two occasions that the case was set for
hearing,*fn8 and that the Union lawyer who ultimately did appear told
the arbitrator that the Union was afraid that the owner would fire Temco
if the grievances were sustained*fn9 — arguably supports an
inference that the Union deliberately took a dive in plaintiffs' case in
order to protect the interests of its other members. Such an inference
would suffice to establish a breach of the duty of fair representation.
Accordingly, Temco's principal contention is without merit.
Temco's fallback position is that the arbitration award establishes
that the plaintiffs in fact stole food from tenant premises and that
there consequently was good cause for their terminations. But Temco has
failed to address the question whether the arbitration award is binding
here, a proposition that the Court cannot simply take for granted in view
of the apparent absence of a judgment confirming the award and the
legally sufficient allegation that the union breached its duty of fair
representation in the arbitration.