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CORONA v. HOTEL AND ALLIED SERVICES UNION LOCAL 758

August 29, 2005.

RAY CORONA, ROBERT BISHOP, EDUARD OPRESCU, VICTOR SHIMMONS, RAY ANNIS, JACKY DEUS, FRANCIS MILLER, JOSEPH INGEGNERE, GARY MILLER, GEORGE KYRIAKIDES, PAUL UNRATH and JOHN O'HARA, Plaintiffs,
v.
HOTEL and ALLIED SERVICES UNION LOCAL 758, NEW YORK HOTEL and MOTEL TRADES COUNCIL, and NEW YORK PALACE HOTEL, Defendants.



The opinion of the court was delivered by: CHARLES HAIGHT, District Judge

MEMORANDUM OPINION AND ORDER

In this case arising under § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, plaintiffs are employees of a hotel and members of a labor union. Their complaint alleges that the hotel harmed plaintiffs by breaching a collective bargaining agreement with the union, and that the union breached its duty of fair representation of plaintiffs by failing to press a grievance on their behalf. The case is now before the Court on the motions of the hotel and the union to dismiss plaintiffs' claims against them, and plaintiffs' cross-motion to disqualify the union's counsel. In prior orders I have stated my intention to decide plaintiffs' motion to disqualify the union's counsel before addressing the substantive motions to dismiss. This opinion resolves the disqualification motion.

I. BACKGROUND

  The twelve plaintiffs are employed as bellmen and doormen at defendant New York Palace Hotel ("the Hotel"). They are members of defendant Hotel and Allied Services Union Local 758, a constituent local of defendant New York Hotel and Motel Trades Council (collectively "the Union"). The Hotel and the Union are parties to a collective bargaining agreement ("the CBA").

  According to the complaint and the affidavits on these motions of plaintiffs Ray Corona, Victor Shimmons, and Robert Bishop, for many years in the hotel industry it has been expected that guests tip doormen and bellmen for their services. Corona says that "tips are usually a large part of my annual income as well as that for other doormen and bellmen." Affidavit, ¶ 7. In July 2004, the manner in which the Hotel evaluated the work practices and services of its doormen and bellmen changed materially, as the result of hotel quality grading performed by the American Automobile Association ("AAA"). Specifically, on the basis of examinations and checklist evaluations by its "Tourism Editors" of a hotel's service, decor, and amenities, the AAA bestows ratings expressed in a number of "Diamonds." Four-Diamond and Five-Diamond ratings are the highest the AAA can bestow upon a hotel,*fn1 and consequently are coveted by hotel owners and managers.

  The AAA has apparently promulgated and distributed to hotel managers elaborate and detailed written "Standards of Service" by which hotel ratings are determined. Attached as Exhibit 1 to the Corona affidavit is a two page, single-spaced document captioned "Bell Staff Standards," divided into four categories of "Standards of Service" for "Bell staff check in," "Bell staff check out," "Door staff arrival," and "Door staff departure."*fn2 The standards of service have been accepted by the Hotel. The managers of the Hotel, in turn, have instructed the bellmen and doormen to comply strictly with each and every one of the standards, and subject the them to disciplinary sanctions if they fail to comply. The standards of service detail the services bellmen and doormen are expected to render to arriving or departing guests, the information they are to furnish about the hotel and its amenities, and the questions they are to ask about needed services and the guests' satisfaction levels. The standards of service for each of the four designated activities instruct bellmen or doormen to use a guest's name "frequently . . . (at least 3 times").*fn3

  In July 2004, the Hotel began evaluating and disciplining its bellmen and doormen, including the plaintiffs, using the AAA Five Diamond checklist. On July 13, 2004, the Hotel issued Corona a formal disciplinary notice for failing to comply with the AAA Five Diamond checklist, including such infractions as "failing to use the guest's name three (3) times" and "failure to show the guest how to use a door bell." Corona Aff., ¶ 14. A disciplinary notice remains in a Hotel employee's file and is the first step in a process which can result in termination of employment. Id., ¶ 11. The disciplinary notice issued to Corona was not generated by a complaint by a real-world Hotel guest; Corona says without contradiction on the present record that "[t]he Hotel based its discipline against me on observations secretly made by evaluators or "spotters" who posed as hotel guests but who were actually employed by a company hired for this purpose. The [sic] were paid to find fault with our work." Id., ¶ 20. Plaintiff Shimmons received a comparable disciplinary notice on July 20, 2004. Shimmons Aff., ¶ 7. Corona says that the Hotel "issued formal disciplinary notices to other doormen and bellmen for allegedly failing to perform their duties according to AAA Five-Diamond standards." Corona Aff., ¶ 22.

  Plaintiffs assert that adherence to the AAA Five-Diamond standards requires bellmen and doormen "to spend much more time with each arriving or departing guest which, in turn, reduces tips earned as the numbers of guests they can service are reduced." Affidavit of Steven M. Coren, plaintiffs' counsel, ¶ 5.*fn4

  Plaintiffs claim that the Hotel's imposition of the Five-Diamond standards constitutes a unilateral change by the employer of established work practices, to the detriment of the plaintiff-employees and in violation of the CBA. Plaintiffs also claim that the Union has breached its duty to fairly represent them in asserting that claim against the Hotel.

  In defending against plaintiffs' claim of failure of fair representation, the Union is represented by the law firm of Pryor Cashman Sherman & Flynn LLP ("Pryor Cashman" or "the Firm"). This opinion is concerned solely with plaintiffs' motion to disqualify Pryor Cashman as counsel for the Union. The facts pertinent to that motion are agreed in part, but there are material differences.

  Plaintiff Robert Bishop was a union delegate for the door and bell staff at the Hotel. In July 2004, Corona and three staff members told Bishop that the Hotel had issued disciplinary notices against them for failing to adhere to the work practices mandated by the AAA Five-Diamond standards. Bishop Aff., ¶¶ 1, 3-4. In Bishop's view, the Hotel's unilateral imposition of new terms and conditions of employment constituted a breach of the CBA. Bishop telephoned John Pasquale, the Local 785 business agent, and alerted him that the Hotel was issuing such disciplinary notices to union members. On July 14, 2004, Bishop, Corona, and other bellmen and doormen met with Pasquale. They asked Pasquale about the possibility of filing a grievance against the Hotel. Pasquale said that "he would investigate and respond to us." Id., ¶ 5. Despite repeated follow-ups by Bishop and others, the Union made no response and took no action until August 13, 2004. On that date the Union sent a letter signed by Michael Simo, the Trades Council regional director, to John Segreti, the general manager of the Hotel. Corona Aff., Ex. 4. Simo took the position in that letter that the Hotel's evaluation and disciplining of door and bell staff on the basis of the AAA Five-Diamond standards and checklist violated the CBA and the National Labor Relations Act. Simo's letter demanded that "any implementation of the new policy be suspended immediately and any discipline resulting therefrom be expunged and that all affected employees be made whole for any losses." The August 13 letter also called for production by the Hotel to the Union of pertinent documents "as soon as possible, but in no event later than August 18, 2004."

  All this is undisputed. It is also common ground that on August 17, 2004, a meeting took place at the Union's offices, attended by Corona, Bishop, union delegate Stephen Hickey, Pasquale, Simo, and Joseph Farelli. Farelli is an attorney. He was then, and is now, an associate at Pryor Cashman, which frequently represents the Union and union members in grievance and arbitration proceedings against employees.

  The parties' accounts of what transpired at the August 17 meeting and thereafter differ as to conduct and nuance. The differences focus upon Farelli: what he said, and what he did.

  Farelli says in an affidavit at ¶ 3:
On August 17, 2004, I happened to be at the HTC's offices*fn5 for a meeting when HTC Regional Director Michael Simo asked me to sit in on another meeting that he and John Pasquale, a Local 758 business agent, were about to have with some of the plaintiffs in this action, including plaintiff Ray Corona.
According to Farelli, Simo explained to him the nature of the door and bell staff's complaints. "Simo asked me to assist Pasquale in framing these workers [sic] complaints when Pasquale presents the complaints to the Hotel management officials." Id, ¶ 4. Farelli's affidavit then gives this account, at ¶¶ 5-6:
5. At the August 17, 2004 meeting, I listened to the workers' complaints and generally explained to Pasquale, with the workers present, the types of claims and arguments the Union defendants*fn6 may want to make when the complaints are presented to the Hotel for adjustment.
6. The meeting lasted approximately forty-five (45) minutes and this was the only time I ever met with the workers concerning the Hotel's implementation of the AAA checklist standards. Since the August 17, 2004 meeting, I have had no communication with any of the bellmen and doormen employed at the Hotel. Except for this meeting and helping Pasquale draft a grievance form regarding the workers' complaints, I have had no further involvement in connection with the workers' complaints in this matter.
  The grievance form to which Farelli refers in ¶ 6 of his affidavit ...

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