The opinion of the court was delivered by: ROBERTSON
Plaintiff Steven Gwin brought this action pursuant to § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, against his former employer, Energy Transportation Corporation (ETC) and his former labor union, National Marine Engineers Beneficial Association (MEBA). Defendants' motion for summary judgment was granted by order dated March 4, 1997. This memorandum sets forth the reasons for that ruling.
Gwin was employed by ETC as master of a liquefied natural gas tanker, the LNG Libra, serving routes between Indonesia and Japan. In January 1995, ETC and MEBA were in the midst of negotiating the terms of a new collective bargaining agreement. The Libra was en route from Arun, Indonesia to Osaka, Japan. Gwin's 125-day tour of duty was scheduled to end in Osaka.
On January 17, Gwin received a telex informing him that the arrival of his replacement in Osaka would be delayed because of an earthquake. That same day, Gwin informed ETC by telex that he intended to take his vacation leave as scheduled upon the Libra's arrival in Osaka, that he was "totally burnt out," and that he did not consider himself "competent to continue as master without rest." ETC granted Gwin's request and placed the chief mate temporarily in command, pending the arrival of Gwin's replacement.
In early February, Gwin began to hear rumors that ETC was blaming him for the telex from Libra's crew. He contacted MEBA for assistance and was directed to its attorney, Richard Hirn, for legal advice. On February 6, 1995, ETC called Gwin and requested that he attend a meeting in New York to discuss his conduct aboard the Libra. Gwin declined and instead contacted Hirn and filed a grievance.
On February 9, 1995, Gwin had a telephone conversation with Martin Matson, an ETC executive. They discussed the events of January 16 and 17, as well as the status of the pending collective bargaining negotiations. Gwin secretly recorded the conversation. Later, he contacted Hirn, told him about the conversation, and sent him a copy of the tape (whether Gwin offered or Hirn asked for it is in dispute). Gwin placed no restrictions or conditions on Hirn's use of the tape. Gwin understood at the time that Hirn was representing MEBA and its members, including Gwin himself, in the contract negotiations.
In April 1995, ETC and MEBA submitted their contract disputes to arbitration. During the arbitration proceedings, Hirn revealed to Matson that Gwin had recorded their February 9 conversation and used a transcript of the tape to impeach Matson's testimony as to the necessity of a wage cut. Matson was embarrassed by this revelation.
On May 5, 1995, Gwin met with ETC representatives. The union offered to provide Gwin with counsel and retained Jacob Shisha to represent him. By letter dated May 11, 1995, ETC demoted Gwin and transferred him from his position as master of the Libra for (1) allowing the crew to send the January 16 telex, (2) taking vacation leave before the replacement captain was aboard, and (3) secretly recording the Matson telephone call.
At Gwin's request, MEBA filed a grievance on the demotion. A hearing was held before Arbitrator Gold on June 7, 1995. At the hearing, the union's representation of Gwin was conducted by Hirn. Hirn met with Gwin for three hours on June 6 to prepare for the hearing. In addition, Hirn prepared an outline of direct and cross-examination of witnesses, including Gwin, as well as evidence and exhibits to be introduced. At the hearing, the company presented two witnesses. Hirn presented the union's case through opening argument, cross-examination of the witnesses, documents submitted into evidence, and the direct testimony of Jerry Hale. Hale, the radio officer aboard the Libra, testified that Gwin had no prior knowledge of the Libra telex. During the hearing, Hirn advised Gwin not to testify, based upon his belief that the union had refuted ETC's evidence and his concern that Gwin would damage his case. In particular, Hirn was concerned that Gwin would reveal his involvement in obtaining a strike vote, information that Hirn had learned during his preparation with Gwin. Although Gwin had expressed his desire to testify to Hirn, he did not insist on testifying.
Arbitrator Gold issued her decision on June 11, 1995, upholding ETC's actions. Gold found that ETC's actions were reasonable in light of Gwin's own admission of "burn out" and incompetency. Gold also concluded that Gwin failed to exercise due diligence with respect to the Libra telex, both in preventing its transmission and in disciplining the officers. As to the incident involving the taped telephone conversation, Gold found that although it was not sufficient to warrant discipline, it was indicative of what ETC perceived to be Gwin's "divided loyalties."