APPEARANCES: For Plaintiff: Eric Andrew Suffin 160 West 71st Street, Suite 2B New York, NY 10023 For Defendant Service Employees International Union, Local 32BJ Katherine Dunn 101 Avenue of Americas, 19th Floor New York, NY 10013
Anthony Russo was employed as a doorman at a Manhattan apartment building. He was fired after he left his post without waiting for his replacement to arrive. His union refused to arbitrate his grievance with his employer, and instead of appealing the union's decision through its internal grievance process, Russo brought this action. Following the close of discovery, his employer and his union have moved for summary judgment. Their motions are granted on the ground that Russo failed to exhaust the union's internal grievance process.
The following facts are undisputed unless otherwise noted. Russo was employed as a doorman at 210 Riverside Drive ("210 Riverside") from July 30, 2009 until January 22, 2010. 210 Riverside is managed by Halstead Management Company, LLC ("Halstead"). Russo's schedule included two overnight shifts on Tuesday and Wednesday. An overnight shift begins at 11:30 p.m. and ends at 7:30 a.m. Russo was required to remain at his post until his replacement arrived.
On Tuesday, January 6, 2010, Russo worked the overnight shift, which was scheduled to end on January 7, at 7:30 a.m. Russo's replacement was William Santiago ("Santiago"), but Santiago did not arrive at 7:30. Russo asserts that a little after 8:00 a.m. he got a call from Santiago, who said that he was "down the block." Russo then "waited and waited and waited," but Santiago never came. Russo finally locked the door and left without notifying the building superintendent Elijio Berisha ("Berisha").
Russo explains that he left his post before Santiago arrived because he was frustrated with Santiago's repeated lateness and wanted to return home to take pills he had been prescribed for a medical condition. Russo had never told anyone at 210 Riverside that he needed to leave his post promptly at the end of his shift to return home to take medication. Russo could have but did not bring his pills with him to work.
Soon after this incident, Berisha advised Russo of a meeting at Halstead's offices on January 13. Russo promptly contacted his union representative, who told him to attend the meeting and that the union's grievance representative Frank Monaco ("Monaco") would accompany him. Russo was a member of the Service Employees International Union Local 32BJ ("Union").
On January 13, Berisha and Michael Tambasco ("Tambasco"), Halstead's property manager for 210 Riverside, met with Russo. Monaco had called Halstead's offices to advise it that he would be ten minutes late, but Tambasco began the meeting without Monaco. At the conclusion of a brief meeting, Tambasco suspended Russo pending a decision by the board for 210 Riverside on whether to fire Russo. When Monaco arrived at Halstead's offices, Russo told him that he had just been suspended. Monaco then spoke with Tambasco and learned that Tambasco was going to recommend to the building's board that it fire Russo. Tambasco immediately advised Russo to file a grievance with the Union.
On January 14, Russo filed a grievance with the Union, asserting that his suspension was without just cause. On January 22, Tambasco notified Russo in writing that he had been fired because he had "abandoned [his] post without notice or authorization, . . . [had] acted inappropriately on several occasions, and continually fail[ed] to carry out [his] porter duties properly." Monaco decided not to pursue the grievance over the termination given Russo's admission that he had abandoned his post without calling the superintendent and Russo's short tenure at the building, among other reasons. The Union did submit a grievance, however, to obtain overtime pay for Russo, and Russo was paid for the time he remained on duty after the end of his shift.
On February 2, the Union advised Russo by letter that it had determined that his grievance lacked sufficient merit to be pursued in arbitration. It added, "[i]f you wish to appeal this decision not to arbitrate your complaint to the Union's Grievance Appeal Board, you must send the Union a written appeal explaining why you believe your complaint has merit within 21 days of the date of this letter." The letter explained that if Russo sent a "timely appeal, you will have an opportunity to explain to the Grievance Appeal Board . . . why you believe your complaint should be arbitrated. If you do not appeal, your complaint will be closed."
The Union's Constitution provides for a Grievance Appeal Board ("GAB") composed of Union members. The GAB may sustain the Union's decision not to proceed to arbitration or direct the Union to proceed to arbitration. Its recommendations are submitted to the Union's Joint Executive Board, which can adopt or reject the GAB's recommendations.
Russo did not appeal the Union's decision to the GAB. The Union, which had advised 210 Riverside to hold the termination of Russo's employment in abeyance, ultimately advised Russo's employer that it was withdrawing the grievance and that the matter was closed.
Instead of filing an appeal with the GAB, Russo filed a lawsuit in New York State court on January 19 against 210 Riverside, Halstead, Tambasco, Berisha, and the Union. The Union removed the case to federal court on February 4. Russo filed an amended complaint on February 22, and on April 9 he filed a second amended complaint ("Complaint") which added the Realty Advisory Board on Labor Relations Inc. ("RAB") as a defendant. On July 13, the claims against the RAB were dismissed. Russo v. 210 Riverside Tenants, Inc., No. 10 Civ. 914(DLC), 2010 WL 2758192, at *1 (S.D.N.Y. July 13, 2010). On July 16, the Union filed a ...