Nikci v. Quality Building Services

995 F. Supp. 2d 240, 198 L.R.R.M. (BNA) 2290, 2014 U.S. Dist. LEXIS 10323, 2014 WL 465760
CourtDistrict Court, S.D. New York
DecidedJanuary 27, 2014
DocketNo. 12 Civ. 8818 (JGK)
StatusPublished
Cited by6 cases

This text of 995 F. Supp. 2d 240 (Nikci v. Quality Building Services) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nikci v. Quality Building Services, 995 F. Supp. 2d 240, 198 L.R.R.M. (BNA) 2290, 2014 U.S. Dist. LEXIS 10323, 2014 WL 465760 (S.D.N.Y. 2014).

Opinion

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

The plaintiff, Seljim Nikci (“Nikci”), brings this action against defendants Service Employees International Union Local Union 32BJ (“Local 32BJ”) and QBS Building Services (“QBS”), (collectively “the defendants”). The dispute concerns disciplinary action taken by QBS against Nikci after Nikci allegedly misrepresented whether he had witnessed an altercation that occurred between a QBS employee and a QBS supervisor. Nikci challenged the disciplinary action in proceedings brought pursuant to the applicable collective bargaining agreement, and Local 32B J represented Nikci in those grievance proceedings. Nikci alleges that, in the course of representing him, Local 32BJ breached the duty of fair representation that courts have derived from Section 9(a) of the National Labor Relations Act, 29 U.S.C. § 159(a). Further, Nikci alleges that QBS breached its obligations under the operative collective bargaining agreement by terminating him without cause and by coercing him into signing a settlement agreement (the “Settlement Agreement”) in violation of Section 301(c) of the Labor Management Relations Act of 1947, 29 U.S.C. § 185.

Defendants Local 32BJ and QBS move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Nikci’s claims. Because this action arises under the Labor Management Relations Act, this Court has jurisdiction pursuant to 29 U.S.C. § 185(a) and 28 U.S.C. § 1331. For the reasons explained below, the Amended Complaint fails to state a claim that Local 32BJ breached its duty of fair representation or that QBS breached any obligations under the collective bargaining agreement. Accordingly, the defendants’ motions to dismiss are granted.

I.

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiffs’ favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007). The Court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). A complaint should not be dismissed if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While factual allegations should be construed in the light most favorable to the plaintiffs, “the tenet that a court must accept as true all of the allegations con[244]*244tained in a complaint is inapplicable to legal conclusions.” Id.

When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiffs possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Taylor v. Vt. Dep’t of Educ., 313 F.3d 768, 776 (2d Cir.2002); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002); see also Wilson v. Am. Postal Workers Union, AFL-CIO, No. 11 Civ. 3097, 2012 WL 3822565, at *1 (S.D.N.Y. Sept. 4, 2012).

II.

The following facts are accepted as true for purposes of this motion, unless otherwise indicated.

A.

Defendant QBS provides cleaning and maintenance services to commercial buildings in the New York metropolitan area. (First Amended Complaint (“FAC”) at ¶ 4.) Defendant Local 32B J is a labor union that represents workers who provide cleaning and maintenance services. (FAC ¶ 5.) Nikci was at all times relevant to this action both an employee of QBS and a member of Local 32BJ. (FAC ¶6.) He began providing cleaning and maintenance services at 444 Madison Avenue in 1997 and later became the Shop Steward for all Local 32BJ members employed at that building. (FAC ¶ 24.) QBS took over the commercial building at 444 Madison Avenue in 2008. (FAC ¶ 12.)

B.

In or about January 2008, Local 32BJ negotiated a collective bargaining agreement with the Realty Advisory Board, an entity that represents several employers in the building services industry. (FAC ¶¶ 7, 8.) The 2008 Collective Bargaining Agreement was effective from January 1, 2008 until December 31, 2011, and was renewed through December 31, 2015 (the “Collective Bargaining Agreement”). (FAC ¶ 7.)

QBS is one of many employers that the Realty Advisory Board represents and to which the Collective Bargaining Agreement applies. (FAC ¶ 8.) Under the Collective Bargaining Agreement, QBS may not terminate employee members of Local 32BJ “except for justifiable cause.” (FAC ¶ 9.) “If an employee is unjustly discharged, he/she shall be reinstated to his/ her former position without loss of seniority or rank and without salary reduction.” (Affirmation of Robert A. Sparer (“Sparer Aff.”) Ex. A (“CBA”) at 5.) The Collective Bargaining Agreement contains a grievance procedure for managing disputes between employers and employees. (FAC ¶ 10.) If the grievance procedure is unsuccessful, the Collective Bargaining Agreement provides for arbitration between the parties. (FAC ¶ 10.)

C.

On June 7, 2012, Nikci and three coworkers were told to carry several boxes from 444 Madison to a car parked in front of the building and driven by QBS supervisor Driton. (FAC ¶ 25.) When Nikci and his coworkers delivered the boxes, Driton began to insult them. (FAC ¶ 26.) One of Nikci’s coworkers, Becir Cosaj, responded to Driton, and a verbal altercation ensued. (FAC ¶ 26.) Surveillance video recorded by the security system at 444 Madison Avenue establishes that the verbal altercation between Driton and Cosaj escalated into a physical altercation.1 The video ap[245]*245pears to show Cosaj twice attempting to strike Driton by reaching through the open driver’s side window of Driton’s vehicle. Nikci alleges that the video shows that, after observing what might appear to be “aggressive behavior on the part of Cosaj directed at Driton,” Nikci physically intervened to cause it to stop. (FAC ¶ 34.) As the plaintiff explains it, he “put his own safety at risk to prevent further threat or harm to Driton.” (FAC ¶ 34 n. 3.)

After the incident between Cosaj and Driton occurred, QBS questioned Nikci about what he had observed. (FAC ¶ 27.) On June 8, 2012, Nikci attempted to file a grievance with Local 32BJ.

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995 F. Supp. 2d 240, 198 L.R.R.M. (BNA) 2290, 2014 U.S. Dist. LEXIS 10323, 2014 WL 465760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nikci-v-quality-building-services-nysd-2014.