Opinion
05 Civ. 10057 (DLC).
May 30, 2007
MEMORANDUM OPINION AND ORDER
In a complaint filed on November 30, 2005, plaintiff Martin L. Arzu ("Arzu") asserts a hybrid claim under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. He accuses his former employer, Riverbay Corporation ("Riverbay"), of breaching a collective bargaining agreement ("CBA") by terminating his employment, and accuses his union, Local 32BJ of the Service Employees International Union ("Union"), of breaching its duty of fair representation by refusing to process his termination grievance. To recover on either of these claims, Arzu must prove: (1) that Riverbay's actions violated the terms of the CBA and (2) that the union breached its duty of fair representation.Chauffeurs, Teamsters, Helpers, Local 391 v. Terry, 494 U.S. 558, 564 (1990); Sankozky v. Int'l Assn. of Machinists Aerospace Workers, 415 F.3d 279, 282 (2d Cir. 2005) (per curiam). Arzu is now proceeding pro se, and therefore his submissions are construed liberally.
Riverbay and the Union have both filed motions for summary judgment. The defendants argue that Riverbay terminated Arzu's employment as a worker at the Coop City residential complex for "good and just cause," as required by the CBA, because he had misappropriated a countertop, failing to deliver it to Apartment 8-J in Building 16B ("Apartment 16B-8J") as instructed and instead delivering it to Building 11B at request of another employee, Jerome Henry ("Henry"), and in exchange for one hundred dollars. They argue that the Union did not breach its duty of fair representation because the undisputed material facts showed that Arzu's termination grievance lacked merit.
In opposition to the motions for summary judgment, Arzu states that, on the day on which he is alleged to have stolen the countertop, he was initially instructed to deliver a countertop to Apartment 16B-8J but that his supervisor later told him that he should not take anything to that apartment. He states that Henry asked him, as a favor, to drop off a different countertop, which Henry had "on his person," to a different building. Arzu contends that he completed the delivery requested by Henry and never discussed money with Henry. Arzu also states that Arzu was aware that only supervisors could authorize deliveries, and that he informed his supervisor that he had made the delivery for Henry immediately after doing so. This account by Arzu raises material questions of fact. The behavior he describes would not provide good and just cause for termination. He also indicates that his supervisor, an agent of Riverbay, knew prior to his termination that he had not stolen the countertop that Riverbay contends was missing from Apartment 16B-8J. Riverbay contends that some of the statements in Arzu's letter opposing summary judgment contradict his prior deposition testimony, but it has failed to identify and provide any particular statements from his deposition that contradict the letter's account of the countertop delivery incident.
Although these facts are contained in an unsworn letter, they are attached to a sworn affidavit. For the purposes of the present motions, because the plaintiff is proceeding pro se, the affidavit is construed as incorporating the statements in Arzu's letter.
A union's duty of fair representation requires it "to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Terry, 494 U.S. at 563 (citation omitted). "A union must discharge its duty both in bargaining with the employer and in its enforcement of the resulting collective-bargaining agreement." Id. Thus, a union is required to pursue members' grievances to the extent required by the principles of fair representation. See id.
Arzu contends that he did not speak English well enough to understand the written confession that he signed, that no one read it to him in Spanish, and that his Union shop steward, Obed Ortiz, told him he would be permitted to go back to work if he signed the statement. The evidence Arzu has proffered could establish that Ortiz had at least apparent authority to act for the Union. If the Union tricked Arzu into signing a written confession that contributed to his termination and then refused to bring his grievance to arbitration, it would have acted in bad faith and breached its duty of fair representation.
The defendants contend that Arzu admitted in his deposition that he did not believe Ortiz was acting with Union authority. Read in context, however, and with the knowledge that Arzu lacks legal training, his statement is ambiguous. It could be understood to reflect nothing more than a lack of knowledge as to whether anyone else at the Union had told Ortiz to trick Arzu into signing a confession or other papers. Therefore, a genuine issue of fact exists as to whether the Union breached its duty of fair representation.
For the foregoing reasons, the defendants' motions for summary judgment are denied.
SO ORDERED: