Opinion
No. 00 Civ. 3450 (RWS).
August 15, 2001
MARGARET McINTYRE, ESQ., New York., NY, Attorney for Plaintiff.
HERRICK FEINSTEIN, New York, NY, Attorney for Defendant. By: JOSEPH J. LYNETT, ESQ., Of Counsel.
KANE KESSLER, New York, NY, Attorney for Defendant. By: LOIS M. TRAUB, ESQ., Of Counsel.
OPINION
Defendants New York Hotel and Motel Trades Council, Local 6 and Plaza Operating Partners Ltd. (collectively "the defendants") have moved for summary judgment pursuant to Fed.R.Civ. p. 56. For the reasons set forth below, the motions will be granted.
The Parties
From 1988 to November 14, 1998, plaintiff Harry Tsikitas ("Tsikitas") was a room service waiter at the defendant, Plaza, Operating Partners Ltd. Hotel (the "Hotel") in New York City.
Defendant Hotel is a luxury hotel located at 59th Street and Central Park South in Manhattan. The Hotel is a member of the Hotel Association of New York City, Inc. (the "Association").
Defendant New York Hotel and Motel Trades Council, AFL-CIO ("the Council") is an unincorporated association and a labor organization comprised of nine union locals representing employees of hotels that are members of the Association.
Defendant Hotel, Restaurant Club and Bartenders Union Local 6, AFL-CIO ("Local 6"), an unincorporated association and constituent local union of the Council that represents employees, including non-supervisory and non-confidential employees of the Hotel's Room Service Department. During his employment at the Hotel, Tsikitas was a member of Local 6. Collectively, the Council and Local 6 are referred to as "the Union."
Both the Union and the Hotel are parties to an industry wide Collective Bargaining Agreement ("CBA") covering the wages, hours and other terms and conditions of employment for Local 6 members.
The Facts
The following facts are undisputed, except where otherwise noted.
The terms and conditions of Tsikitas's employment as a room service waiter at the Hotel were governed by the CBA dated June 25, 1985 and modified by Memoranda of Understanding dated January 1, 1990 and July 1, 1995. Article 26 of the CBA provides for all disputes arising under the CBA to be submitted to a grievance procedure culminating in binding arbitration before the industry Impartial Chairman (the "Arbitrator"). Under Article 27 of the CBA, the "Union may question whether an Employee's discharge was for just cause." (Traub Aff. Ex. A.)
In addition, the Hotel maintains an employee handbook that provides that theft, or attempted theft, are grounds for "disciplinary action, including discharge." (Dertouzos Aff. Ex. A at 33(a).) The handbook warns employees that the same sanction is imposed if they either ask for or comment on the amount of a tip. (Dertouzos Aff. Ex. A at 34(o).)
The parties disagree about Tsikitas's employment record before the incident that gave rise to his termination in November of 1998. While Tsikitas asserts that "[t]hroughout his employment with the Plaza Hotel, [he] performed his duties in an exemplary manner" (Compl. ¶ 10), the defendants contend that he had a record of "carelessness." (Lynett Aff. Exs. A (Arbitrator's opinion), D (Corrective Communication from Nov. 13, 1998 citing prior written warning for carelessness in service), L (Postiglione Dep. at 41-43, 46).)
Prior to the incident of November 1998, the Union had twice successfully pursued a grievance on Tsikitas's behalf. In 1994, the Union filed a grievance after Tsikitas was laid off, which led to a settlement whereby Tsikitas regained his position as a part-time room service waiter. In early 1998, the Union pursued a grievance for Tsikitas to allow him to be transferred to the night shift. The Union was ultimately successful and reached a settlement on February 6, 1998 that allowed Tsikitas to work evenings.
After receiving the favorable settlement, Tsikitas alleges, George Dertouzos ("Dertouzos"), Human Resources Director for the Hotel, told him he did not want him on the night shift. Dertouzos denies making this statement. Tsikitas alleges that he was not transferred in a timely fashion after entering into the settlement agreement, which the Hotel contests.
Tsikitas alternately alleges that he was transferred to the night shift three weeks after the settlement (Compl. ¶ 15), and that the transfer did not take place until June 21, 1998, more than four months after the settlement (Pltf. Rule 56.1 Counter Statement in Response to the Union's Rule 56.1 Statement, at 7 ¶ 3.)
Tsikitas contends that Head Waiter/Director of Room Service, Jay Ortiz ("Ortiz"), asked him for a $500 to allow him to work the evening shift. Tsikitas promptly reported the attempted bribe to the Union, which, according to Tsikitas, informed Dertouzos of the complaint, Subsequently, Dertouzos allegedly told Tsikitas that he ought to tell the Union that he had lied about Ortiz. No other action was taken. Dertouzos and the defendants deny that the bribe took place, that they were notified of it, or that Dertouzos spoke to Tsikitas about it.
At approximately 12:20 in the morning of November 14, 1998, Tsikitas served two guests staying in Room 1012 of the Hotel. The couple, Kelly Hollingsworth and her fiance, Chris Collins, gave Tsikitas a $100 bill to pay for their $63.37 meal. He did not realize that they had paid with a $100 bill until he opened the folder after leaving the room. He did not return with change, but instead handed the $100 bill to the managing cashier for the night shift, a woman named Ann Marie, who asked him to bring a rush order to another room. When he finished his shift, he returned to another cashier to receive his tips for the night, and took home $36.63 from his delivery to Room 1012 — more than 50% of their bill. He went home at approximately 12:35 a.m. that night.
She has since married Chris Collins and now goes by the name Kelly Collins.
This cashier, Millie, was the overnight cashier who started at 12:30 a.m. Ann Marie was still on duty but was busy with something else in the area when Tsikitas cashed out for the night. (Lynett Aff. Ex. J (Tsikitas Dep.) at 80-81.)
At 2:00 a.m., the guests in Room 1012 called room service to complain that they had paid the waiter $100 in cash for their $63.37 meal but had not received any change. The assistant manager's daily report reflects that the caller was male, and that he said that the waiter had promised to return with change. (Lynett Aff. Exs. C, M (Collins Dep.) at 23-27.)
Dertouzos asserts that the person who filed the report, Ed Burgos, is bilingual, and told Dertouzos that in fact he spoke with Kelly, not Chris Collins, and had inadvertently confused the caller's gender in writing the report. (Lynett Aff. Ex. K at 99.)
When Tsikitas reported for work at 5:00 p.m. on November 14, 1998, he received a corrective communication indefinitely suspending him for failing to return change to guests. The document, filed by Ortiz, explained the reason for the suspension as follows:
Harry on Nov. 14, 1998 you served on order to m/m Collins. Mr. Collins paid cash for his dinner with a 100.00 bill. However you assured Mr. Collins that you would return with his change as well as to remove the table. Needless to say you never returned Mr. Collins [sic] change or even bother to remove the table. Mr. Collins called down 1 hour later looking for his change and the waiter. Mr. Collins was very upset at this situation which made his stay here at the Plaza very unpleasant due to your carelessness in service. On 9/27/98 you were given a "written warning" for carelessness however you continue to practice carelessness towards our guest. Therefore you give me no choice but to suspend you indefinitely until further investigation.
(Lynett Aff. Ex. D.) The box next to carelessness was checked. (Id.)
The defendants contend that Union delegates met with Dertouzos to determine the basis for the suspension later on November 14, but that the meeting was short because Union officials had already scheduled a formal grievance meeting for November 20, 1998. Tsikitas denies both of these contentions.
Sometime thereafter, but before November 20, Dertouzos spoke to one of the guests from Room 1012 about the incident. (Lynett Aff. Ex. K (Dertouzos Dep.) at 96.) He contends that they told him that Kelly had told Tsikitas to bring back the change and had not mentioned anything about a tip. (Id. at 97-98.)
The formal grievance meeting was held on November 20, 1998. Tsikitas was represented by Union business representative, Marvin Jefferson, who inquired of Dertouzos and Ortiz and argued that Tsikitas should be given another chance based upon his past performance at the Hotel. However, Dertouzos had "made up [his] mind [to terminate Tsikitas] after speaking with the guest" and learning that she had specifically requested change. (Id. at 110.) He testified that he would have been "open to any persuasion but there was none." (Id.)
Tsikitas was formally terminated from the Hotel for theft on November 21, 1998. He filed a grievance report (Lynett Aff. Ex. E), and the Union's Grievance Board elected to arbitrate the discharge after a grievance meeting was held on March 5, 1999 (Lynett Aff. Ex. F).
Leonard Postiglione, Esq. ("Postiglione") represented Tsikitas at the arbitration proceedings, which took place on or about October 21, 1999 after being rescheduled several times to schedule conflicts of the guest witness and of the Arbitrator. Postiglione argued that the Arbitrator should require the Hotel to begin paying Tsikitas his regular salary until the hearing date. That motion was initially denied, but granted at a subsequently scheduled hearing, to remain in force until the next hearing. Tsikitas was in fact paid his regular salary until the next hearing date arrived and was rescheduled because the Arbitrator could not appear.
Postiglione alleges that he reviewed the file and met with Tsikitas to prepare the case before the hearing, as was his standard practice. (Lynett Aff. Ex. L at 13, 29.) Although Tsikitas faults Postiglione for failing to argue that the termination was in retaliation for reporting the alleged bribe from Ortiz, Postiglione avers that Tsikitas never sought to use that prior incident as the basis for his defense. (Id. at 34, 35.) Moreover, although Postiglione asked him if he knew of any witnesses who could corroborate his version of events, Tsikitas did not suggest anyone.
Dertouzos and Kelly Hollingsworth both testified for the Hotel at the arbitration. Dertouzos testified to Tsikitas's prior inconsistent statements about the incident. Hollingsworth identified Tsikitas as the waiter who served her and testified that she told him "we will need the change." (Lynett Aff. Ex. A at 1.) She also recalled having a brief conversation with him about being a grandfather. Postiglione cross-examined both witnesses and attempted to challenge Hollingsworth's testimony by introducing the assistant manager's daily report, which reflected that a male guest had interacted with Tsikitas in Room 1012, only Tsikitas testified on his own behalf. He did not address his retaliation theory during his testimony.
On November 9, 1999, the Arbitrator, Ira Drogin, issued an award finding that the Hotel had "just cause" to terminate Tsikitas for theft. After setting forth the evidence and describing the parties' contentions, the Arbitrator narrowed the question to Tsikitas's intent in failing to return the change. Relying heavily on the credibility determination that Tsikitas "was an evasive and non-responsive witness" who had "repeatedly avoided answering important questions" and "lied intentionally about the incident," the Arbitrator denied the grievance. (Id. at 2, 3.)
At various times, Tsikitas has advanced three explanations for retaining the $36.63: (1) he told Dertouzos and the members at the arbitration meeting that the couple told him to keep the change as a tip (Lynett Aff. Ex. A (Arbitrator's Opinion) at 2; Lynett Aff. Ex. J (Tsikitas Dep.) at 217-219); Lynett Aff. Ex. K (Dertouzos Dep.) at 94); (2) he testified at deposition that the couple had said nothing to him about the bill, and he assumed the remainder was intended as a tip, although the amount was "strange" (Id. at 94, 108; Lynett Aff. Ex. J (Tsikitas Dep.) at 60, 66, 77, 86, 217); and (3) the cashier gave the $36.63 back to him with his other tips at the end of his shift without calling Room 1012 to ask how much change should be returned, as she was required to do by Hotel policy (Compl. ¶ 18).
Tsikitas filed this action on May 5, 2000, alleging that the Hotel breached the CBA by terminating him without cause, and that the Union had breached its duty of fair representation in handling the grievance about his discharge. The Hotel and Union filed summary judgment motions on May 31, 2001. Tsikitas filed his opposition, and the motion was deemed fully submitted after oral argument on June 27, 2001.
Discussion
I. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment may be granted when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Second Circuit has repeatedly noted that "as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting)); see Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995); Burrell v. City Univ., 894 F. Supp. 750, 757 (S.D.N.Y. 1995). If, when viewing the evidence produced in the light most favorable to the non-movant, there is no genuine issue of material fact, then the entry of summary judgment is appropriate. See Burrell, 894 F. Supp. at 758 (citing Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991)).
Materiality is defined by the governing substantive law. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[T]he mere existence of factual issues — where those issues are not material to the claims before the court — will not suffice to defeat a motion for summary judgment." Ouarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985)
While all reasonable ambiguities and inferences should be resolved against the moving party, those inferences must be supported by affirmative facts and must be based on relevant, admissible evidence.See Fed.R.Civ.P. 56. A party seeking to defeat a summary judgment motion cannot "rely on mere speculation or conjecture as to the true nature of facts to overcome the motion." Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995) (citation omitted).
Where, as here, the complaint asserts hybrid claims under § 301 of the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185 (a) and 195(a), and § 9(a) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 159 (a), the plaintiff seeking to defeat summary judgment must show there is no genuine issue of fact that the employer violated its contract with the Union and that the Union breached its duty to represent the plaintiff fairly. See DelCostello v. Int'l Brotherhood of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281 (1983)
II. The Union Did Not Breach its Duty of Fair Representation
Section 301 of the LMRA codifies an employer's duty to honor the CBA, and the duty of fair representation in proceedings that arise under it is implied from § 9(a) of the NLRA, 29 U.S.C.S. 159(a). See id., 462 U.S. at 164, 103 S.Ct. 2281; White v. White Rose Food, a div. of DiGiorgio Corp., 237 F.3d 174, 179 n. 4 (2d Cir. 2001). In this hybrid action, the Arbitrator's decision that the Hotel terminated Tsikitas with just cause may be reexamined only if Tsikitas successfully demonstrates that the Union violated its duty of fair representation to him.
A plaintiff seeking to establish that a union has breached its duty of fair representation must demonstrate two elements. First, the plaintiff must show that the union's conduct toward the plaintiff was "arbitrary, discriminatory, or in bad faith," Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44, 119 S.Ct. 292, 142 L.Ed.2d 242 (1998) (citing Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Second, the plaintiff must establish that the union's conduct "seriously undermine[d] the arbitral process." Barr v. United Parcel Serv., Inc., 868 F.2d 36, 43 (2d Cir. 1989), cert. denied, 110 S.Ct. 499 (1989) (citing Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976)).
"[A] union's actions are arbitrary only if, in light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outside a 'wide range of reasonableness,' as to be irrational."Air Line Pilots Ass'n. Int'l v. O'Neill, 499 U.S. 65, 67, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991) (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 5. Ct. 681, 97 L.Ed. 1048 (1953)); See White, 237 F.3d at 179; Spellacy v. Airline Pilots Assoc. Int'l, 156 F.3d 120, 129 (2d Cir. 1998), cert. denied, 526 U.S. 1017 (1999). The "wide range of reasonableness" encompasses discretionary decisions, even if they later prove erroneous or unsuccessful. Marquez, 525 U.S. at 45-46, 119 S.Ct. 292. "Bad faith requires a showing of fraudulent, deceitful, or dishonest action." Sim v. New York Mailers' Union No. 6, 166 F.3d 465, 472 (2d Cir. 1999).
As such, judicial review of union action "must be highly deferential, recognizing the wide latitude that [unions] need for the effective performance of their bargaining responsibilities." Spellacy, 156 F.3d at 126 (citation and internal quotations omitted). As the Second Circuit noted in Barr:
Tactical errors are insufficient to show a breach of the duty of fair representation; even negligence on the union's part does not give rise to a breach. Proof of mere negligence or errors of judgment . . . is insufficient. . . . As long as the union acts in good faith, the courts cannot intercede on behalf of employees who may be prejudiced by rationally founded decisions which operate to their particular disadvantage.868 F.2d at 43-44 (citations and internal quotations omitted). See also United Steelworkers of America, AFL-CIO-CLC v. Rawson, 495 U.S. 362, 372-373 (1990)
A plaintiff is not entitled to have his Union representative advance every conceivable theory at an arbitration hearing. See Cook v. Pan American World Airways, 772. F.2d 635, 643 (2d Cir. 1985) cert. denied 474 U.S. 1109, 106 S.Ct. 895, 88 L. Ed.2d 929 (1986); Mullen v. Bevona, No. 95 CIV. 5838 (PKL), 1999 WL 974023, *5 (S.D.N.Y. Oct. 26, 1999). In short, a union breaches its duty of fair representation only when it "ignores or perfunctorily presses a meritorious claim." Samuels v. Air Transport Local 504, 992 F.2d 12, 16 (2d Cir. 1993) (citing Young v. United States Postal Serv., 907 F.2d 305, 308 (2d Cir. 1990).
Tsikitas contends that Postiglione violated his duty by failing (1) to raise the issue of the alleged prior bribe attempt and argue that the discharge had been retaliatory; (2) to call an unidentified witness to contradict Dertouzos's account of Tsikitas's version of events; (3) to discredit the testimony of Kelly Hollingsworth; (4) to argue that discharge was a disproportionate punishment compared to other employees who had broken Hotel rules in similar or more egregious ways; and (5) to enforce the agreement with the Hotel to pay Tsikitas for the period in which arbitration was delayed. As set forth below, none of these strategies was likely to have changed the Arbitrator's verdict, which rested largely on his finding that Tsikitas was not credible, and was evasive, and mendacious when asked why he failed to return the change to Room 1012. In fact, these arguments were either so irrelevant or frivolous that raising them might have prejudiced Tsikitas even more.
A. Retaliation Defense
Postiglione was rational not to raise the retaliation defense. The prior allegation of bribery and retribution had no bearing on the central question at issue: why Tsikitas failed to return the $36.63 to Room 1012. Tsikitas failed to provide a consistent, credible explanation for that act, and the Arbitrator ruled against him accordingly. Evidence that his supervisors were predisposed to find fault with him does not change the fact, as found by the Arbitrator, that Tsikitas intentionally pocketed the money, particularly in light of the fact that it was a disinterested guest, not Hotel management, who made the complaint and returned to New York to testify at the hearing. As the retaliation theory was not a "strong substantive argument," the union did not violate its duty by failing to raise it. Peters v. Burlington Northern Railroad Co., 914 F.2d 1294, 1300 (9th Cir. 1990), reh'g denied, 931 F.2d 534 (1991)
Even more importantly, — even if it had been raised and supported with competent evidence, the retaliation theory for discharge would, as a matter of law, not be a complete defense to the serious charge of theft. Where, as here, the employee has admitted keeping the money, a retaliation argument at best raises the specter of a mixed-motive discharge. In such cases, the employee has the burden of proving that retaliatory motive was a factor in the decision to terminate, which then shifts the burden to the employer to prove the affirmative defense that the employee would have been discharged anyway for good cause. NLRB v. Transportation Management Corp., 462 U.S. 393, 398, 103 S.Ct. 2469, 2472 (1983) ("[An employer] does not violate the NLRA, however, if any anti-union animus that he might have entertained did not contribute at all to an otherwise lawful discharge for good cause."), abrogated on other grounds, Director, Office of Workers' Compensation Programs, Dept. of Labor v. Greenwich Collieries, 512 U.S. 267, 277-78, 114 S.Ct. 2251, 2257-58, 129 L. Ed 2d 221 (1994). If Tsikitas had successfully raised an inference of retaliation, the Hotel could still have prevailed by demonstrating that Tsikitas would have been fired for theft, as per the industry wide practice. See F. Elkouri and E.A. Elkouri, How Arbitration Works, 916 n. 149 (5th ed. 1997) (stating that if proven, theft is cause for discharge regardless of an employee's work history); see also KBI Sec. Service, Inc. v. N.L.R.B., 91 F.3d 291, 292 (2d Cir. 1996) (affirming Arbitrator's unrebutted finding of retaliatory discharge, but reversing remedy of reinstatement due to evidence that discharged employees had committed theft).
B. Failure to Call Witnesses to Rebut Dertouzos's Testimony
Postiglione cannot be faulted for not calling any other witnesses on behalf of Tsikitas because Tsikitas, the only person with knowledge of potential witnesses, failed to provide any names. Moreover, as the Arbitrator noted, Tsikitas failed to dispute Dertouzos's account during his own testimony. Without identifying any potential witnesses who would have come forward to rebut Dertouzos's testimony (other than to call them "union delegates"), much submitting affidavits from them demonstrating that their testimony would have been outcome-determinative, Tsikitas cannot establish that Postiglione was irrational or arbitrary in failing to call them at the hearing. See Phillips v. Lenox Hill Hospital, 673 F. Supp. 1207, 1214 (S.D.N.Y. 1987) ("By failing to demonstrate by competent evidence that the substance of the uncalled witness' testimony might . . . have affected the outcome of the arbitration, [plaintiff] failed to make a sufficient showing on an essential element of [his] case. . . .") (citing Celotex, 477 U.S. at 317). Cf. Samuels v. Air Transport Local 504, 992 F.2d 12, 16 (2d Cir. 1993) (finding that union had breached duty of fair representation by failing to discuss case or witnesses with employee prior to hearing, where witnesses were known to employee and subsequently testified for him at trial), cert. denied, 513 U.S. 1171 (1995) It is highly unlikely that the Arbitrator's decision would have been different even if witnesses had been called to rebut Dertouzos, because the award was specifically based upon the finding that Tsikitas himself lacked credibility and had lied about the incident.
C. Failure to Discredit Kelly Hollingsworth
Tsikitas contends that Postiglione failed him by neglecting to challenge whether Kelly Hollingsworth was in fact the female guest in Room 1012 that night, and by not challenging her allegedly false testimony. As to the first issue, Hollingsworth specifically identified Tsikitas as her waiter and described their interaction in detail during her hearing testimony, so challenging whether she was the guest involved would have been a waste of time and potentially damaging to his case. Tsikitas contends that two elements of her testimony "convinced [him] that the witness had been coached by Dertouzos to fabricate a story" against him. (Pltf. Br. at 23.) Specifically, Hollingsworth testified that she recalled having a conversation with Tsikitas about his grandson, and that she believed the conversation had started because her three-month old baby was in the room with them. Postiglione elected not to elicit from Tsikitas that he did not have grandchildren at the time, but that his brother did, which Tsikitas believes is evidence that Dertouzos confused him with his brother when coaching Hollingsworth. He did, however, question her testimony by introducing into evidence the manager's report, which reflected that a male, not a female, had called to complain.
Although Hollingsworth's recollection of the conversation was apparently faulty, the coaching theory has no evidentiary basis, and is therefore not a sufficient defense to summary judgment. See D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.), cert. denied, 524 U.S. 911 (1998) ("The non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful."). The Arbitrator specifically found that Hollingsworth was a credible, disinterested witness who had no reason to return to New York voluntarily to lie in the arbitration proceeding. Focusing on discrepancies in minor details of her testimony would have been unlikely to change this finding, or, more importantly, his ultimate holding about Tsikitas's intent in not returning the money. Electing not to attack the guest's credibility was a tactical choice that was well within the fair discretion of union counsel.
Tsikitas also testified that there was no baby in the room, which is corroborated by the fact that the engaged couple was ordering room service after midnight.
D. Failing to Raise the Disproportionate Punishment Argument
Without any legal support, Tsikitas contends that the Union violated its duty of fair representation by failing to argue that termination for theft was disproportionate punishment in light of the fact that another Hotel employee had merely been suspended after delivering an order to an empty room and unilaterally adding a gratuity to a check. The corrective communication in that case (the only document regarding the other employee that has been submitted to this Court) called for suspension with a recommendation for termination, which is more serious than the suspension Tsikitas initially received. (McIntyre Aff. Ex. H.) The record does not reflect what subsequent action was taken in that case. Absent a more significant showing that thefts were typically punished with suspensions except in Tsikitas's case, the evidence pertaining to the other employee is not relevant to this action. In any case, Tsikitas has not demonstrated that he either raised the issue of disproportionate punishment in general, or the discipline of other employees specifically, with Postiglione prior to the hearing.
E. Enforcing the Interim Salary Agreement
Finally, Tsikitas maintains that the Union failed to enforce the agreement it reached with the Hotel to pay him a regular salary during the delay between scheduled hearings. He cites to a note written by Dertouzos to the effect that "we have to pay Mr. Tsikitas for the period August 10, 1099 through October 21st, 1999 at his regular rate of pay. The decision to pay the grievant stems from the numerous adjournments the Hotel requested in order to schedule the guests." (McIntyre Aff. Ex. K.) No other specific evidence of the agreement to pay Dertouzos has been introduced, although the parties agree that some agreement was reached and that the Hotel paid Tsikitas between the first adjournment (due to the Hotel's delay) on July 9, 1999, and the next date, August 9, 1999. The August 9, 1999 date was adjourned to October due to the unavailability of the Arbitrator. Neither party has introduced evidence of whether Tsikitas had a contractual right to continue receiving a salary during these periods.
In any case, the Union successfully arranged to have Tsikitas receive his regular salary during the first adjournment period, and then elected not to pursue the question further after the Arbitrator's own non-appearance occasioned a second delay. Tsikitas has introduced no evidence to suggest that his failure to receive a salary between August 9, 1999 and October 21, 1999 was a result of arbitrary, irrational or bad faith conduct on the part of his Union counsel. Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44, 119 S.Ct. 292, 142 L.Ed.2d 242 (1998). Finally, not receiving his salary did not have any effect on the arbitral process, and certainly did not "seriously undermine" the Arbitrator's finding that Tsikitas had intentionally withheld the money from the guests in Room 1012. Barr v. United Parcel Serv., Inc., 868 F.2d 36, 43 (2d Cir. 1989), cert. denied, 110 S.Ct. 499 (1989) (citing Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976)).
In sum, none of the grounds advanced by Tsikitas rebut the defendants' evidence on the fair representation question. Postiglione prepared the case, discussed it and possible strategies with Tsikitas, cross-examined witnesses and introduced evidence at the hearing. He relied on two theories: first, that the guests did not specifically ask for change, so Tsikitas had no intent to steal, and second, that the error was the result of mere inadvertence, which was consistent with his work history at the Hotel. Both theories were fair approaches under the circumstances: Arguing that Tsikitas had no intent to steal allowed him to seek a lesser punishment, and the carelessness theory also supported the lack of culpability argument and was supported by evidence of his past performance. In the end, neither strategy was successful, because the Arbitrator found Tsikitas to be an uncredible witness. This finding was not the result of any violation of the Union counsel's duty of fair representation.
III. Just Cause
As Tsikitas has failed to demonstrate that the Union violated its duty of fair representation in this hybrid action, this Court may not question the Arbitrator's finding of just cause. See United Parcel Serv., Inc., v. Mitchell, 451 U.S. 56, 62 (1981) (proving a breach of the duty of fair representation by the union is an "indispensable predicate" to plaintiff's breach of contract claim); Carrion v. Enterprise Ass'n. Metal Trades Branch Local Union 638, 227 F.3d 29, 33 (2d Cir. 2000) (to prevail on hybrid claim, the employee must "carry the burden of demonstrating breach of duty by the Union.") (quoting DelCostello, 462 U.S. at 165, 103 S.Ct. 2281 (quoting United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 66-67, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981) (Stewart, J., concurring));Gold v. Local Union No. 888, United Food and Commercial Workers Int'l Union, 758 F. Supp. 205, 208 (S.D.N Y 1991) ("Plaintiff has standing to bring such an action against the Company based on a breach of the collective bargaining agreement only if the union has breached its duty of fair representation"); Camporeale v. Airborne Freight Corp., 732 F. Supp. 358, 368 (E.D.N.Y. 1990) ("If it is shown that the union fairly represented the employee throughout the grievance and in accordance with the terms of the collective bargaining agreement, then the claim against the employer for breach of the agreement necessarily falls."), aff'd, 923 F.2d 842 (2d Cir. 1990).
Conclusion
For the foregoing reasons, the defendants' motions for summary judgment are granted.
IT IS SO ORDERED.