Makowski v Becom Real, Inc.

[*1] Makowski v Becom Real, Inc. 2006 NY Slip Op 52293(U) [13 Misc 3d 1242(A)] Decided on November 29, 2006 Supreme Court, Kings County Harkavy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 29, 2006
Supreme Court, Kings County

Robert Makowski, Plaintiff,

against

Becom Real, Inc., Defendant.



13409/05



Plaintiff Attorney: Ballon Stoll Bader & Nadler, P.C.

1450 Broadway, 14th Floor

New York, NY 10018

Defendant Attorney: Scheichet & Davis, P.C.

767 Third Avenue

New York, NY 10017

Ira B. Harkavy, J.

Upon the foregoing papers, defendant Becom Real, Inc. (Becom) moves, pursuant to CPLR 3211 (a) (5), for an order dismissing all causes of action in the complaint of plaintiff Robert Markowski.

Background

This case stems from plaintiff's firing effective May 19, 2004 for insubordination and disruptive and dangerous behavior. Defendant, a signatory to a collective bargaining agreement with District Council of New York and Vicinity, United Brotherhood of Carpenters and Joiners of America, had hired plaintiff through his union local to work as a carpenter in "an open store remodeling"[FN1] of its job site at Stop & Shop Supermarket No.505, [*2]located at 1710 [FN2] Avenue Y in Brooklyn. A dispute that occurred between plaintiff and a superintendent on May 18, 2004 regarding carpentry work at the job site then caused plaintiff's discharge.

The Arbitration Award

An arbitrator, who held a hearing on October 14, 2004, subsequently found (on page 6 of his Award, dated November 18, 2004) that plaintiff had loudly cursed during the dispute and used abusive language "heard by tradesmen working in and around the bakery area and loud enough to [be] heard by the public in the supermarket." The arbitrator also noted that a foreman and shop steward had described plaintiff in the midst of the dispute as violently hammering a three inch strip of sheet rock in removing it from the ceiling "causing particles of sheet rock to fly over the bakery work area as well as aisles of the supermarket which were open with customers" (Award, pp. 6-7).

The arbitrator found that plaintiff's "defiant actions" in public "potentially jeopardized the safety of other tradesmen and customers" (Award, p 7). He regarded plaintiff as insubordinate (Award, pp 6,7) and concluded that Becom "had good cause to discharge [plaintiff] on 5/19/04" (Award, p 2).

The arbitrator made this award after also rejecting arguments of plaintiff's union that Becom retaliated against plaintiff for raising several safety issues and a jurisdictional issue (Award, pp 4-5, 7-8). First, the arbitrator noted that a foreman responded to plaintiff's two objections about being on top of the scissors lift railings by performing the disputed job function himself and not requiring plaintiff to perform the function. A superintendent had similarly addressed plaintiff's concern about working nearby allegedly odious vapors coming from the laying of a linoleum floor in the bakery area by reassigning him to perform another phase of work away from the vapors.

The arbitrator additionally commented that "for each safety issue complained about by [plaintiff], he was allowed without interference to discuss the issue with his shop steward, and . . . was not criticized by the superintendent about having lost productivity as a result of these complaints" (Award, p 8). Consequently, the arbitrator found "no evidence to substantiate the Union's claim that the [plaintiff's] safety complaints became a pretext for his 5/19/04 layoff" (id.).

The National Labor Relations Board (NLRB) Proceedings

Plaintiff had concurrently filed an unfair labor practice charge against Becom on May 28, 2004 with the NLRB and again had claimed retaliatory termination for his complaints. The NLRB's Region 29 Director dismissed the charge, by letter dated July 26, 2004, and plaintiff filed an administrative notice of appeal, dated July 28, 2004. The NLRB's General [*3]Counsel's Office, through its Office of Appeals' Director, thereafter denied the appeal in a September 29, 2004 letter.

That letter referenced the Regional Office's investigation which "determined that [plaintiff] refused to remove sheetrock when requested, and [defendant] therefore discharged him for insubordination . . . Even if this work was outside the scope of carpentry work as [plaintiff] asserts[,] he was obligated to perform the requested task, and then file an appropriate grievance." The appeal denial letter recounted that "[b]ased on the foregoing, it was determined that [defendant] had legitimate business reasons for the decision to terminate [plaintiff] . . ." A November 2004 letter subsequently denied plaintiff's reconsideration request and closed that case concerning the National Labor Relations Act.

This action under New York Labor Law § 740 has thereafter ensued.

The Parties' Positions

Defendant's Position

Becom asserts that applying collateral estoppel and res judicata doctrines to the unchallenged November 18, 2004 arbitration award herein warrants dismissing plaintiff's complaint. It views the claims and causes of action in plaintiff's complaint as identical to those which the arbitrator addressed and rejected and which plaintiff had a full and fair opportunity to litigate in the arbitration. Such situation, Becom urges, bars relitigation via plaintiff's complaint.

Plaintiff's Position

Plaintiff claims that the arbitration considered only selected and not all the various complaints he made [FN3] and which he collectively views as having fueled his retaliatory discharge. He further contends that he could not raise a New York Labor Law § 740 violation at the arbitration and that this "whistleblower" action under Labor Law § 740 should therefore survive.

Discussion

The Court of Appeals has explained that "the doctrine of res judicata is applicable to arbitration awards and may serve to bar the subsequent relitigation of a single issue or an entire claim" (Matter of Ranni, 58 NY2d 715, 717 [1982] [internal citation omitted]). It further instructed that [c]laim preclusion refers to the bar against relitigating a claim or [*4]cause of action . . . Issue preclusion is more limited, barring only the relitigation of a discrete factual or legal issue (id.) (internal citation and internal quotation marks omitted).

The Appellate Division, Second Department, in turn, has identified several

factors in determining

whether to accord preclusive effect to a prior determination. . . including the identity of issues, the fulness and fairness of the parties' opportunity to litigate the issue at bar, the realities of the arbitral proceedings, including the incentive to proceed to arbitration, and actual scope of the arbitration, as well as the presence and participation of counsel, the foreseeability of future litigation, the extent to which a matter was necessarily or implicitly decided in the arbitral forum (even if not actually litigated), the likelihood of inconsistent results, and the opportunity to present evidence and cross-examine witnesses. . . There are also basic policy considerations, notably the question of fairness, finalization of disputes, the conservation of judicial resources, and the goals of uniformity (Altamore v Friedman, 193 AD2d 240, 245 [1993], lv denied 83 NY2d 906 [1994], rearg denied 83 NY2d 1001 [1994] [internal citations omitted]).

Here, the first cause of action alleges that Becom retaliatorily terminated plaintiff for his complaints (paragraph 68) and required him to perform job responsibilities outside the terms of the collective bargaining agreement (paragraph 74). However, the arbitrator concluded that Becom "had good cause to discharge [plaintiff] on 5/19/04" (Award, p 2), found no instance where Becom required plaintiff to perform disputed job functions and in fact determined that "for each complaint raised by [plaintiff] the [defendant] facilitated removing the [plaintiff] from his alleged safety issue so as not to be subject to the complained alleged safety violation" (Award, pp 7-8).

The second cause of action alleges that plaintiff's purported retaliatory discharge violated Labor Law § 740.[FN4] The arbitrator, though, not only cited plaintiff's insubordination as the basis for his removal, but also found "no evidence to substantiate the Union's claim that the [plaintiff's] safety complaints became a pretext for his 5/19/04 layoff" (Award, p 8). Hence, an identity of issues necessarily, explicitly or implicitly decided in the arbitral forum exists in this case considering that the arbitrator confronted and resolved the same claims and causes of action presented herein.

The Appellate Division, Second Department has also held that preclusive effect occurs even, as here, for an unconfirmed arbitration award (County of Rockland v Aetna Casualty & Sur. Co., 129 AD2d 606, 607 [1987], lv denied 70 NY2d 603 [1987] ["The fact that the [*5]prior determination was an unconfirmed arbitration award and not a judicial determination does not lessen its collateral estoppel effect"]; Hilowitz v Hilowitz, 85 AD2d 621, 622 [1981] [res judicata and collateral estoppel "doctrines are applicable to issues resolved by arbitration where there has been a final determination on the merits . . . notwithstanding a lack of confirmation of the award"] [internal citations omitted]).

In addition, the Arbitration Award and Opinion in this case clearly indicates compliance with other appellate guidelines for giving the award preclusive effect.

"Full opportunity was afforded the parties to be heard, offer evidence and argument, and to examine and cross examine witnesses [who] were duly sworn. At the conclusion of the hearing both parties stated that they had presented their respective cases in full" (Award, p 2). Preserving plaintiff's job provided an obvious incentive for the arbitration and attorneys represented each side with both union counsel and plaintiff's private counsel appearing therein (id.).

The scope of the arbitration hearing in this case gave plaintiff an opportunity to present all, not just some, of the complaints he believed caused his retaliatory discharge. His choice to withhold proceeding on all those complaints in the arbitration fails to diminish the award's preclusive effect in this litigation. The Appellate Division, Second Department very recently once again stressed in this regard that "[t]he doctrine of res judicata operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same factual grouping or transaction and which should have or could have been resolved in the prior proceeding" (Licini v Graceland Florist, Inc., 32 AD3d 825, 826 [2006] [internal citation and internal quotation marks omitted]).

The arbitration award and opinion herein shows that the hearing also allowed consideration of plaintiff's Labor Law § 740 retaliatory discharge claims. Here, as in Strattner v Cabrini Medical Center (257 AD2d 549, 549-550 [1999]), "plaintiff initiated a process that has resulted in an arbitration award in favor of the defendant on the very whistleblower claims that plaintiff seeks to litigate, with plaintiff's full participation in that process . . . [Plaintiff] will not now be heard to assert whatever right he may have had originally to opt for litigation" (internal citations omitted).

The Court of Appeals originally foreclosed such relitigation option. It reasoned that "[t]he courtroom may not be used as a convenient vestibule to the arbitration hall so as to allow a party to create his own unique structure combining litigation and arbitration" (Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260, 263 [1985] quoting De Sapio v Kohlmeyer, 35 NY2d 402, 406 [1974]; see also Clemens v Apple, 65 NY2d 746, 749 [1985]). The arbitration in this case coupled with principles of res judicata and collateral estoppel thus foreclosed utilizing Labor Law § 740 as a basis for relief.[FN5] [*6]

Consequently, "the previous arbitration and award serves as a bar to the instant action . . . because the instant action is premised on the same series of transactions passed upon by the [arbitration panel]" (Spasiano v Provident Mut. Life Ins. Co., 2 AD3d 1466, 1467 [2003]). Accordingly, it is

ORDERED that defendant's motion to dismiss the complaint is granted and the complaint is dismissed.

This constitutes the decision and order of this court.

E N T E R,

J. S. C. Footnotes

Footnote 1:A remodeling that occurs while the store remains open to the public.

Footnote 2:The arbitration award herein and the Stop and Shop's website, www.stopandshop.com, identify 1710 Avenue Y, not 17-10 Avenue Y as appears in the submitted papers, as the correct address for this store.

Footnote 3:Plaintiff's complaint referenced seven other "grievances and complaints" not specifically discussed in the arbitration award under various headings ("Inexperienced Workers," paragraphs 19-20 and 27-31; "May 13 2004 Safety Incident" that involved installing a curtain wall and bracings, paragraphs 32-39; "May 17, 2004 Overtime Work," paragraphs 45-50; "May 17, 2004 [and] May 18, 2004 Lack of Tools and Equipment," paragraphs 51-57; "Out of Title Work," paragraphs 58-61; "May 19, 2004 - Lack of Materials," paragraphs 62-63; and "Inadequate Equipment," paragraphs 64-67).

Footnote 4:That provision, more specifically § 740 (2) (a), pertinently provides that "[a]n employer shall not take any retaliatory personnel action against an employee because such employee does any of the following: discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety . . ."

Footnote 5:Conversely, Labor Law § 740 (7) precludes utilizing contractual remedies, as occurred herein, when invoking Labor Law § 740. That provision pertinently provides that "institution of an action in accordance with this section shall be deemed a waiver of rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under common law."