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Vargas v. Service Employees Int'l Union Local Union No. 325-32J

October 23, 2006


The opinion of the court was delivered by: P. Kevin Castel, District Judge


Plaintiff Hector Vargas brings this action against his former employer, 2727 Realty, LLC ("Employer"), and his union, Service Employees International Union Local Union No. 32B-32J ("Union"), seeking compensatory and punitive damages, reinstatement to his position as a superintendent with back pay, costs and attorney's fees and an injunction. Underlying Vargas's claims is his contention that he was wrongfully terminated from his position as superintendent for engaging in union activities and that he was wrongfully ejected from a basement "party/storage space" that he claims to have occupied with the consent of the defendant-Employer. Plaintiff's claims have been the subject of an arbitration, in which he was represented by his present counsel. The arbitrator found the Employer's termination of plaintiff's employment to have been for "just cause". The Employer also prevailed in an action it brought in New York City Civil Court to eject plaintiff from the party/storage space. Plaintiff also brought an unfair labor change against his Union before the National Labor Relations Board which was "deferred" by reason of the arbitration. Plaintiff has appealed unsuccessfully within the NLRB.

Plaintiff contends that the arbitration award should be "reversed" as the arbitrator's decision was "arbitrary, capricious, an abuse of discretion, not in accordance with law, exceeds his authority under the collective bargaining agreement, was corrupt, fraudulent and partial and without due process of law." (Amended Verified Petition at ¶ 18) Defendants rely upon the general principal that only the union, and not a union member, is a party to an arbitration conducted pursuant to a collective bargaining agreement and that only the union has standing to challenge an arbitration award. Relying upon a well-defined exception to that rule, Vargas asserts that his Union breached its duty of fair representation and, for that reason, he may step into the shoes of the Union and assert his claims. The defendant Union moves for summary judgment asserting that there is no genuine dispute of material fact surrounding its discharge of its duty of fair representation and that it is entitled to summary judgment in its favor. Examining all submitted pleadings, affidavits and exhibits, in a light most favorable to plaintiff, I conclude that no reasonable fact-finder could conclude that the Union has breached its duty of fair representation. Defendants are entitled to summary judgment in their favor.

Proceedings in this court

This case was originally commenced in Supreme Court, Bronx County, and removed to this court on November 28, 2005. This court has jurisdiction over the subject matter of this action pursuant to section 301(a) of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a).

On February 24, 2006, I issued an order granting plaintiff leave to file an amended pleading and directing that any additional motions to amend be filed within 15 days.

Plaintiff filed an Amended Verified Petition ("AVP") on March 10, 2006. On April 17, 2006, plaintiff requested permission to further amend the pleadings. Despite the untimeliness of the request, I waived the pre-motion conference requirement and permitted plaintiff to file a motion to amend. (Docket #18) No motion to amend was thereafter filed by plaintiff. However, a Second Amended Verified Petition was submitted to Chambers. There has been no "good cause" shown as to why there was not compliance with my April 17 order. As I advised the parties prior to the filing of the summary judgment motion, the Second Amended Verified Petition is not an operative pleading in this case and I do not consider it in determining this motion. (See 5/12/06 Tr. at 15-16)

On June 23, 2006, defendants filed this motion for summary judgment addressed to the Amended Verified Petition. On October 16, 2006, I issued an order directing the defendants to submit the complete record of proceedings before the New York Civil Court relating to plaintiff's claims in this action, as well as a chronology of the actions before the Civil Court. I also invited plaintiff to submit any additional materials for my consideration by noon on October 23, 2006. Defendants' submissions were received while nothing was submitted by plaintiff.


Plaintiff was the building superintendent at 2727 University Avenue, Bronx, New York, until his dismissal on December 28, 2004. (AVP at ¶ 3) The Union represents the service workers in the building where Vargas worked and lived. (AVP at ¶ 5) On December 28, 2004, an agent of the defendant Employer delivered to plaintiff a letter of termination of employment. The stated ground for the termination of plaintiff's employment was that Vargas had an "illegal apartment set up in [a] basement storage room". (AVP Exh. B) As part of his employment, Vargas was permitted to occupy the basement superintendent's apartment. (AVP ¶ 21) According to Vargas, the Employer asserted that he was illegally occupying a party/storage space in addition to the apartment. (AVP at ¶ 16) Vargas alleges that his employer was "on actual and constructive notice" of his occupation of the party/storage space and that the stated reason for his termination was a "sham pretext". (AVP at ¶ 22) Vargas asserts that the stated reason was pretextual and that, in fact, he was fired because he requested a snowblower, provision of which plaintiff alleges was required under the collective bargaining agreement. (AVP at ¶¶ 10, 13, 27; AVP Exh. A)

While there is a dispute as to which collective bargaining agreement was operative at the time plaintiff's claims arose and were adjudicated, it is undisputed that the most recent agreement between the Union and Employer was signed in March 2005. It is this March 2005 agreement which provided that Vargas's claims concerning the termination of his employment would be submitted to arbitration before Arbitrator Robert Herzog. Vargas terms the March 2005 agreement the "secret settlement" or "secret memorandum". (AVP at ¶ 14) Prior to execution of the March agreement, the Union had filed an unfair labor practice charge before the National Labor Relations Board on plaintiff's behalf against the Employer and S.W. Management LLC. (Vargas Aff. at ¶ 8) Under the terms of the March 2005 agreement, this charge was withdrawn and submitted to arbitration before Arbitrator Robert Herzog. Vargas complains of the outcome and circumstances of that arbitration.

Arbitrator Robert Herzog conducted two days of hearings on the claims of Vargas, May 19, 2005 and July 1, 2005. Although the arbitration was conducted pursuant to a collective bargaining agreement between the Union and Employer, plaintiff chose to be represented by his own counsel, Morris Markowitz, Esq.. Prior to arbitration, plaintiff alleges that, despite their objections, both he and Mr. Markowitz were "coerced" into signing a written waiver.*fn1 (Plaintiff's Resp. to Rule 56.1 at ¶ 29) The waiver document states that as a result of his choice to be represented by private counsel rather than the Union, plaintiff waived any claims that he might have against the Union arising out of the arbitration. (Sparer Aff. Exh. 21) It was executed by Vargas, Mr. Markowitz and a representative of the Union. At the arbitration hearing, plaintiff introduced testimony from two building residents, Ms. Dolores Nunez and Mr. Mandelbaum, and his union representative, Mr. Colin Forehand. (See Vargas Dep. 91-94, 180-82; Plaintiff's Resp. to 56.1 at ¶ 34)

In a thirteen page opinion and award, Arbitrator Herzog found that there was "just cause" for the Employer's termination of Vargas's employment. He found that Vargas's testimony was not credible and was contradicted by his own witness. (See AVP Exh. A at 10-12) Nevertheless, ...

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