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Kendell Stephens v. Maxx Properties

May 29, 2012

KENDELL STEPHENS,
PLAINTIFF,
v.
MAXX PROPERTIES, JRD MANAGEMENT, 3500 SNYDER AVENUE OWNERS CORPORATION, LOCAL UNION 2 OF NEW YORK STATE INDEPENDENT UNION OF BUILDING SERVICE EMPLOYEES & FACTORY WORKERS, USWU AND IUJAT, DEFENDANTS.



The opinion of the court was delivered by: John Gleeson, United States District Judge:

MEMORANDUM AND ORDER

Plaintiff Kendell Stephens brings a hybrid claim under § 301 of the Labor Management Relations Act (the "LMRA"), 29 U.S.C. § 185, and the implied duty of fair representation under the National Labor Relations Act, 29 U.S.C. §§ 151--69, against Maxx Properties, JRD Management, 3500 Snyder Avenue Owners Corporation ("3500 Snyder Corp.") and Local Union 2 of New York State Independent Union of Building Service Employees & Factory Workers, United Service Workers Union and International Union of Journeyman & Allied Trades ("Local 2"), as well as an independent claim for breach of the duty of fair representation against Local 2. The Defendants have answered the Second Amended Complaint ("SAC") and moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Defendants' motions are granted.

BACKGROUND

A. Factual Background

Stephens was employed as a porter by Maxx Properties or JRD Management, affiliated companies involved in the management of residential buildings. SAC ¶¶ 2--4, 7, ECF No. 16.*fn1 His job responsibilities consisted of cleaning, repairing and generally maintaining an apartment building at 3500 Snyder Avenue, in Brooklyn, New York, that was owned by 3500 Snyder Corp. and managed by Maxx Properties. See id. ¶¶ 5, 7--8. During his eight years of employment, Stephens had a "stellar record." Id. ¶ 9.

In October 2010, a nearby building also managed by Maxx Properties was under renovation. Id. ¶ 10. Frank Lagana, one of the contractors working there, had discarded some items from a storage unit in the building, including an old broken dishwasher, a used pool table and an old pedestal sink. Id. ¶¶ 11--12. Lagana told Stephens and two other Maxx Properties employees that these items had been placed on the curb to be picked up by sanitation workers as garbage. Id. ¶ 13. Believing the items to be garbage, one employee took the sink and Stephens took the dishwasher for its parts. Id. ¶ 14.

Several days later, Reginald Boyd, the property manager, reported that the dishwasher had been stolen. Id. ¶ 18. Stephens and Boyd had a bad relationship. Id. ¶¶ 18--20. When Stephens learned of the report, he returned the dishwasher to avoid additional conflict with Boyd. Id. ¶ 21. Nevertheless, Stephens's employment was terminated for theft of the dishwasher. Id. ¶ 22. The employee who took the sink was not terminated. Id. ¶ 24.

Stephens filed a grievance with his union, Local 2. See id. ¶ 25. Pursuant to a Collective Bargaining Agreement ("CBA") between Maxx Properties and Local 2, the matter went to arbitration. See id. ¶¶ 25--26. The arbitration was assigned to Robert Herzog, one of only two arbitrators approved in the CBA. Id. ¶ 26.*fn2 During the arbitration, Maxx Properties was represented by Stefanie Munsky. Id. ¶ 27. Stephens had an attorney provided by Local 2.

Munsky and Herzog had a "friendly relationship" and spoke about "personal matters" at the arbitration. Id. ¶ 27. Munsky also heated Herzog's lunch and offered him tea, perks that were not offered to the other attendees. Id. ¶¶ 27--28. After two days of hearings, the arbitrator issued a decision concluding that Stephens's employment had been terminated for just cause due to his theft of the dishwasher. See id. ¶ 30.

B. Procedural Background

Stephens commenced this action on May 27, 2011. He filed the SAC on November 29, 2011, and the Defendants timely answered. In the SAC, Stephens alleges that Local 2 breached its duty of fair representation by failing to take action in response to the purported bias of the arbitrator. He also alleges that he was fired without just cause. He asserts a hybrid § 301/ duty of fair representation claim against all the Defendants and separate duty of fair representation claim against Local 2.

On March 7, 2012, the Defendants moved for judgment on the pleadings. In opposing these motions, Stephens has filed an affidavit containing additional facts bearing on the purported bias of the arbitrator. He asserts that when Herzog arrived for the first day of the arbitration, Munsky and Herzog hugged each other and met privately in Munsky's office for approximately 15 minutes. Stephens Aff. ¶¶ 22--25, ECF No. 31-1. After Boyd had testified at the arbitration hearing, Munsky met privately with Herzog, Boyd and Lagana (who was about to testify). Id. ¶ 27. Herzog also consented to Munsky's request to delay the hearing for two hours so she could call another witness. See id. ¶ 29. On the second day of the arbitration, Herzog and Munsky again greeted each other with a hug and had another private meeting. Id. ¶ 30. During the hearing, Munsky purchased a snack and tea for Herzog. Id. Stephens asserts that Local 2's attorney noted these improprieties and told Stephens that Maxx Properties could only win due to the friendship between Munsky and Herzog. See id. ¶¶ 31--32.

DISCUSSION

A. Standard of ...


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