Heffron v. Adamar of New Jersey, Inc., Civil Action No. 01-4738 (SSB).

270 F.Supp.2d 562

William HEFFRON, Plaintiff, v. ADAMAR OF NEW JERSEY, INC., d/b/a Tropicana Casino and Resort, and Hotel Employees and Restaurant Employees International Union, Local 54 AFL-CIO, Defendants.

Civil Action No. 01-4738 (SSB).

United States District Court, D. New Jersey.

July 15, 2003.

COPYRIGHT MATERIAL OMITTED

Michelle J. Douglass, Esq., Barker, Douglass & Scott, P.C., Linwood, NJ, for Plaintiff William Heffron.

Shea Hutchins Lukacsko, Esq., Grotta, Glassman & Hoffman, P.A., Roseland, NJ, for Defendant Adamar of New Jersey, Inc.

Regina C. Hertzig, Esq., Cleary & Josem LLP, Northfield, NJ, for Defendant Hotel Employees and Restaurant Employees Union, Local 54.

OPINION REGARDING DEFEDANTS' MOTIONS FOR SUMARY JUDGMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 56

BROTMAN, District Judge.

Plaintiff William Heffron filed this action against his employer, Defendant Adamar of New Jersey, Inc. (d/b/a Tropicana Casino and Resort), and his collective bargaining representative, Defendant Hotel Employees and Restaurant Employees International Union, Local 54, AFL-CIO, on October 11, 2001. Count I of Plaintiffs complaint asserts a claim against his employer, under § 301 the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, for breach of a collective bargaining agreement. Count II asserts a claim against Defendant Local 54 for allegedly breaching its duty of fair representation. Finally, Count III accuses both Defendants of engaging in age discrimination in violation of the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1, et. seq. Both Defendants now move for summary judgment with respect to all three counts of Plaintiffs complaint. For the reasons set forth below, the Court will grant Defendants' respective motions for summary judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND The Collective Bargaining Agreement

Plaintiff William Heffron ("Plaintiff), who is currently 78 years old, has been employed as a bartender at the Tropicana Casino and Resort ("Tropicana") in Atlantic City, New Jersey, since June 19, 1982. (Heffron Dep. at 90:16-17). He is also a dues-paying member of the Hotel Employees and Restaurant Employees International Union, Local 54 (hereinafter "Local 54"), the exclusive collective bargaining representative for the Tropicana's bartenders and bar porters. (Defendant Local 54's Rule 56.1 Stmt, at ¶ 1). Local 54 and the Tropicana have been parties to a series of collective bargaining agreements, the most recent of which covers the period from September 15, 1999, through September 14, 2004. (See Decl. of Regina C. Hertzig, Esq., at Ex. 1). The provisions of this collective bargaining agreement (hereinafter abbreviated as "CBA") set forth the basic terms and conditions of employment for all Local 54 union members employed at the Tropicana, including Plaintiff. (Local 54's Rule 56.1 Stmt, at ¶ 2). Article III of the CBA creates certain contractual rights or privileges based on an employee's "seniority" or length of "continuous service" within one of the Tropicana's various departments.¹ For instance, Article III, paragraph 7(a) provides, in pertinent part:

Seniority shall accumulate from and be calculated by continuous service from the last employment date with the Employer and on the basis of classification seniority within the department as determined by the Employer.

....

Seniority shall govern designation of days off, layoffs/recalls, shifts of work, choice of station or floor assignment if otherwise qualified, and vacation selection subject to Employer's establishment of designated work schedules. Employer may establish a rotation system, the method of which shall be determined jointly by Employer and Union.

(Hertzig Decl, Ex. 1, p. 13). Paragraph 7(c), in turn, sets forth a broad outline of the procedures the Tropicana must follow when selecting employees to fill "available openings" within their respective departments:

... employees with the same departmental classification seniority shall be permitted to bid for the available openings within their respective departments ... Such openings will be posted for five (5) days. The successful bidder(s) will be determined by seniority ... For purposes of bidding, bartenders, bar porters, and cocktail servers shall be considered one department and shall be permitted to bid within their respective classification for available openings.

(Id. at p. 14-15). Article III, paragraph 11 further states that "an employee absent on leave or vacation" who wishes ... to exercise bid rights while absent [ ] must designate on a vacation or leave form a proxy stating that another employee or a shop steward may exercise the bid rights for the absent employee. The actions or inaction of [that] designated representative shall be binding on the absent employee and shall not be subject to [the] grievance and arbitration procedure.

(Id, at p. 18-19).

The "re-bid" process

Representatives from the Tropicana and Local 54 use two different procedures to select bartenders and bar porters for the various job positions and shift assignments available within the casino's Beverage Department. (Amadeo at 14:18-21:13). The first procedure, known as a "bid," is generally used whenever the casino creates a new, "permanent" (i.e., lasting more than 30 days) bartending position. (Id. at 14:24-15:24). The position is posted on a bulletin board outside the Beverage Department's offices and all employees in the department are given the opportunity to sign up or "bid" for it. (Id. at 14:24-15:7). At the conclusion of the bidding process, the job is awarded to the bidder with the most seniority. (Id,; Pl's Rule 56.1 Stmt, at ¶ 7; Heffron Dep. at 93:17-24).

The other procedure, known as a "rebid," is used whenever the casino's changing staffing needs (i.e., the re-opening or closing of restaurant or "outlet") require a reshuffling or re-ordering of the department's shift assignments. (Amadeo Dep. at 17:5-11). When a "re-bid" is required, the casino posts a notice on the bulletin board outside the Beverage Department office directing that all of the department's employees meet in a particular location within the facility at a specific date and time. (Id. at 18:15-19:2; PL's Rule 56.1 Stmt, at ¶ 17; Heffron Dep. at 93:17-95:10). This notice is usually posted anywhere from five days to fourteen days before the scheduled "re-bid." (Amadeo Dep. at 18:20-19:20; Heffron Dep. at 111:11-16).

At the "re-bid," which is attended by representatives from both management and the union, a union shop steward or shop chairman reads from a list containing the names of all the employees in the department. (Amadeo Dep. at 26:1-24). The names are read in order of seniority, beginning with the most senior employee in the department. (Id.). When an employee's name is called, that employee is given the opportunity to come forward and exercise his "seniority rights" by placing his name on a list containing all of the available job positions and shift assignments within the department. (Id.; Hansen Cert, at ¶ 2). In this way, the more "senior" bartenders in the department are given a wider range of shift assignments to choose from than their less senior counterparts.

The list of available shift assignments ordinarily includes a variety of five-day shifts or "bids," four-day bids, and what are referred to as "reserve pool" bids. (Id, at 16:24-17:4). "Reserve pool" bartenders are essentially extra bartenders who fill in for other bartenders on an as needed basis, such as when an employee is out sick or on vacation. (Id. at 16-7-9). "Reserve pool" bartenders are also occasionally called in to provide additional staff for specific functions like banquets and showrooms. (Id.). Some employees actually prefer a position on the "reserve pool list" because it affords them a greater degree of flexibility when arranging their work schedule. As with other positions, those employees who attend a "re-bid" are given the opportunity to select a spot on the "reserve pool list" in accordance with their seniority. (Id. at 16:18-17:4; 41:6-16). Each employee in the reserve pool is then assigned a specific "call-in" time. (Id. at 38:6-40:14). Employees at the top of the reserve pool list are assigned earlier "call-in" times—that is, they have the option of calling into the casino further in advance to inquire whether there are any shifts available. (Id.). Thus, those at the top of the "reserve pool" list will ordinarily have more shifts to choose from than their counterparts at the bottom of the list. They will also have the first opportunity to choose a shift assignment at one of the more lucrative "outlets" in the casino. The March Slst Re-Bid

For reasons relating to his health, Plaintiff took an approved leave of absence from his bartending position at the Tropicana beginning on February 3, 2001. (Local 54's Rule 56.1 Stmt, at ¶ 16; PL's Response to Local 54's Rule 56.1 Stmt, at ¶ 16). Prior to going on leave, Plaintiff was working as a "reserve pool" bartender and occupied the No. 8 position on the "reserve pool" list. (PL's Rule 56.1 Stmt, at ¶ 1; Cert, of Mark A. Saloman, Esq., Ex. K). He did not submit a proxy form authorizing a shop steward or another employee to place bids on his behalf during his absence. (Heffron Dep. at 96:5-8).

On March 18, 2001, in anticipation of the re-opening of the Tropicana's newly-renovated North Tower, a notice was posted on the bulletin board outside the Beverage Department office announcing that a "rebid" would take place in the casino's Avanti Restaurant at noon on March 31, 2001. (Saloman Cert, at Ex. P). The notice contained the following admonition: "All bartenders are to report promptly at 12:00 noon. There will be no grace period." (Id.). This same notice was also posted in the union hall. (Amadeo Dep. at 18:23-25; 33:5-7).

Plaintiff received permission from his doctors to return to work on March 26, 2001. (Heffron Dep. at 123:19-127:5). H...