Rivera et al v. Communications Workers of America et al

Filing 92

ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons discussed in the attached Memorandum and Order, the Court adopts Judge Bloom's R&R and grants Defendants' motion to dismiss. The Court grants Plaintiffs sixty days to amend the Complaint. If Plaintiffs fail to amend the Complaint within sixty days, the Court will dismiss this action with prejudice. Ordered by Judge Margo K. Brodie on 9/29/2017. (McKenzie, Lindsay)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------RICHARD RIVERA, LINDA MCLAUGHLIN,
MELANIE Y. TREADWELL DONAHUE, MARTHA
GARCIA, GIOVANNA GANGEMI, LAURA ORR,
LINDA K. ATKINSON, VERA DANIELS, ANN
HAMILTON O’REILLY, LUISA GUARISCO,
GIROLAMA MENNITI, RONALD KRAEMER,
MARIELANA DIDOMENICO LATOSA, CYNTHIA
GONZALEZ, ANNA BIRARDI, NICOLE GARCIA,
ROSE BISCONTI-GERMANI, RUBY INGRAM,
JOHN MARCHETTA, MEENA MAKHIJANI, ALBA
RODRIGUEZ, ROXANNE HARTFIELD, CLETANE
“CLEO” BAZILE, LINDA SUNDACK, KARINA
ULLAH, KENNETH DEFAY, LYNDA ANN ZELL,
ARLENE MACK, MYRA DELESTON, MINNIE
KAPOOR, JACQUELINE MORRIS, LINDA
DIASPARRA, MAX PIERROT, MARY MARGARET
SENTENO-JOSEPH, JOYCE SMIRMAN-JOHNSON,
GLORIA JEANNITON, SUSAN STEUBING, JENI D.
RYMER, MIGDALIA CEPEDA, HERMIA CHANG,
GISELLE CARSENI-HAVITERS, ANNA MARIA
CUPIDO, LORNA FARRINGTON, BERDETTE
THOMPSON, HUIWANG “KATY” WANG, JAVIER
LOPEZ, CARLENE BOYD, MILDRED MATOS,
JANNIE SALCE, LORRAINE TITLEY, LEILA
ISAACS, MARIA G. MONTALVO, LEIGH
SHAFFER and ANNA HERRERA,
Plaintiffs,
v.
COMMUNICATION WORKERS OF AMERICA,
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, COMMUNICATION WORKERS OF
AMERICA – INTERNATIONAL BROTHERHOOD
OF TEAMSTERS PASSENGER SERVICE
EMPLOYEES ASSOCIATION, a/k/a CWA-IBT
ASSOCIATION, and JOHN AND JANE DOES 1–20,
Defendants.
---------------------------------------------------------------

MEMORANDUM & ORDER
16-CV-1673 (MKB) (LB)

MARGO K. BRODIE, United States District Judge:
Plaintiffs, proceeding pro se, filed the above-captioned action against the Communication
Workers of America (“CWA”), International Brotherhood of Teamsters (“IBT”),
Communication Workers of America – International Brotherhood of Teamsters Passenger
Service Employees Association a/k/a CWA–IBT Association (the “CWA–IBT Association”) and
John and Jane Does 1–20, alleging breach of the duty of fair representation under both the
Railway Labor Act, 45 U.S.C. § 151 et seq. and federal common law. (Compl., Docket Entry
No. 1.) On October 28, 2016, Defendants moved to dismiss the Complaint for failure to state a
claim and for failure to join an indispensable party pursuant to Rules 12(b)(6) and 12(b)(7),
respectively, of the Federal Rules of Civil Procedure. (Defs. Mot. to Dismiss (“Defs. Mot.”),
Docket Entry No. 83.) On November 15, 2016, the Court referred the motion to Magistrate
Judge Lois Bloom for a report and recommendation. (Order dated Nov. 15, 2016.) By report
and recommendation dated July 26, 2017 (the “R&R”), Judge Bloom recommended that the
Court dismiss the Complaint and grant Plaintiffs leave to amend within thirty days of the date
that the Court adopts the R&R. (R&R, Docket Entry No. 86.)
On August 9, 2017, Plaintiffs filed timely objections to the R&R. 1 (Pls. Obj. to the R&R
(“Pls. Obj.”), Docket Entry No. 88.) Defendants filed a reply to Plaintiffs’ objections on August
24, 2017. (Defs. Reply to Pls. Obj. (“Defs. Reply”), Docket Entry No. 89.) For the reasons set
forth below, the Court adopts the R&R and grants Plaintiffs sixty days to file an amended
complaint.

1

On August 3, 2017, Plaintiff Richard Rivera, purportedly on behalf of all Plaintiffs,
requested a sixty-day extension of time to amend the Complaint and to object to the R&R. (Pls.
Mot. for Ext. of Time, Docket Entry No. 87.) A few days later on August 9, 2017, Plaintiffs
filed objections to the R&R.
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I.

Background
Plaintiffs are passenger service agents (the “Agents”) who were employed by Trans

World Airlines (“TWA”) and who became American Airlines (“AA”) employees when AA
acquired TWA in 2001. (Compl. ¶¶ 1, 11.) At the time of the acquisition, AA assigned all TWA
Agents, including Plaintiffs, a date-of-hire seniority date of April 10, 2001, effectively treating
them as new hires rather than accounting for their time working at TWA. (Id. ¶¶ 11, 37.) AA
subsequently merged with US Airways in 2013. (Id. ¶ 12.) CWA and IBT, the union
representatives of AA and US Airways Agents, respectively, jointly established the CWA–IBT
Association, and also elected a seven-member committee comprised of five CWA members and
two IBT members (the “CWA–IBT Committee”). (Id. ¶¶ 12–14.) The CWA–IBT Committee
was charged with, among other things, negotiating a new employment contract with the merged
airline carrier (the “Carrier”) that included a single, unified employee list in order of seniority.
(Id.) CWA and IBT also gave certain of its members non-voting CWA–IBT Committee roles,
designating Ron Collins and Andy Marshall as Chairpersons, Marge Krueger and Kim Barbaro
as Co-Chairpersons, and tasking Christopher Peifer, a union attorney (“Attorney Peifer”), with
working with the CWA–IBT Committee. (Id. ¶ 15.) The seven CWA–IBT Committee members
signed a confidentiality agreement prohibiting disclosure of its discussions and of any contract
terms the CWA–IBT Committee proposed to the Carrier. (Id. ¶ 16.)
In or around June of 2015, the CWA–IBT Committee unanimously voted in favor of
proposing a “letter of agreement” to the Carrier, which included a plan to credit TWA Agents
who joined AA at the time of the 2001 acquisition (the “Legacy TWA Agents”) for their pre2001 service working at TWA. (Id. ¶¶ 17–22.) “No later than on or about July 29, 2015,” the
letter of agreement was approved by the Carrier. (Id. ¶ 18.)

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The CWA–IBT Committee thereafter negotiated with the Carrier periodically regarding
other issues, until on or around October 1, 2015, when a tentative agreement with the Carrier was
reached. (Id. ¶ 22.) The tentative agreement included thirty-seven separate “Articles,” including
the letter of agreement which contained the CWA–IBT Committee’s proposal regarding the
seniority of Legacy TWA Agents. (Id.)
On October 2, 2015, the CWA–IBT Committee’s proposal to credit Legacy TWA Agents
for their pre-2001 service was “leaked” to Agents who were employed by AA prior to the 2001
acquisition (the “Legacy AA Agents”). (Id. ¶ 24.) Legacy AA Agents were thereafter instructed
by “those to whom the . . . seniority integration agreement with the Carrier had been leaked to
communicate their opposition thereto to Dennis Trainor, Vice President of District 1 of
Defendant CWA.” (Id. ¶ 26.) Around the same time, and “with the knowledge, consent and
affirmative encouragement of Defendants,” Legacy AA Agents began circulating a petition “to
reverse the [CWA–IBT] [C]ommittee’s seniority integration agreement with the Carrier.” (Id. ¶
26.) Trainor received “numerous communications” regarding the issue, and agreed to
“investigate the matter, and then further respond.” (Id. ¶ 27.) Plaintiffs allege that Trainor
“thereafter communicated with other senior officials of Defendants regarding the effort by said
[L]egacy AA [Agents] to reverse the [CWA–IBT] Committee’s decision, or otherwise prevent it
from being implemented.” (Id. ¶ 27.)
On October 7, 2015, CWA–IBT Committee Chairperson Collins initiated a conference
call with the CWA–IBT Committee members, and informed them that a re-vote “would be
required as to whether to integrate” Legacy TWA Agents into the seniority list using a date-ofhire that reflected their pre-2001 service. (Id. ¶ 28.) Plaintiffs allege that during this conference
call, Collins made knowingly false and materially misleading statements “in a deliberate effort to

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prompt its members to reconsider, and reverse, their earlier decision.” (Id. ¶ 29.) During a
second conference call with Collins held later that day, the CWA–IBT Committee voted again,
but the vote resulted in a tie due to the absence of one CWA–IBT Committee member. (Id. ¶
32.)
On or around October 17, 2015, the tentative agreement “was presented by Defendants to
their respective memberships.” (Id. ¶ 37.) However, the letter of agreement contained within the
tentative agreement did not reflect the CWA–IBT Committee’s initial proposal to credit Legacy
TWA Agents for their pre-2001 service, “but rather new, substituted language based upon the revote on October 19 or 20, 2015” giving all Legacy TWA Agents a date-of-hire seniority of April
10, 2001, leaving in place the seniority decision made in the course of the 2001 acquisition. (Id.)
Defendants contemporaneously issued a statement to their members disclosing their position, and
explaining that a decision to credit Legacy TWA Agents for their pre-2001 service would have
“disrupted the seniority of the [L]egacy AA [Agents].” (Id. ¶ 38.)
On or around October 19 or 20, 2015, the CWA–IBT Committee voted a third time,
which resulted in a five-to-two vote in favor of reversing the prior decision to credit Legacy
TWA Agents for their pre-2001 service. (Id. ¶ 34.)
Defendants then held a series of meetings to “provide an opportunity for members to ask
questions” regarding the terms of the tentative agreement that CWA and IBT members would
vote on. (Id. ¶ 39.) During one such meeting, on or around November 4, 2015, CWA–IBT
Committee members “admitted that [they] had originally voted in favor” of crediting Legacy
TWA Agents for their pre-2001 service, but that “a re-vote had subsequently been conducted,
and that original decision had been reversed.” (Id. ¶ 41.) Defendants stated that Legacy TWA
Agents would have the right to “‘grieve any errors’ regarding seniority in arbitration once the

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new, combined seniority list was issued.” (Id. ¶ 46.) Plaintiffs allege that this statement was
made to “deliberately mislead” Legacy TWA Agents “and induce their reliance thereon,”
although Defendants knew, “but deliberately [failed] to state,” that challenges in arbitration
would be limited to “actual clerical or other factual errors,” and challenges to the decision made
regarding the seniority of Legacy TWA Agents would not be permitted. (Id. ¶ 47.)
On November 5, 2015, Defendants signed a revised letter of agreement reflecting the
decision not to credit Legacy TWA Agents for their pre-2001 service. (Id. ¶ 48.) The revised
letter of agreement was signed by the Carrier on November 10, 2015. (Id. ¶ 49.) Balloting of
Defendants’ respective memberships regarding the tentative agreement began “promptly
thereafter.” (Id. ¶ 50.) When balloting closed on or around November 30, 2015, the tentative
agreement was ratified by a vote of 6,993 to 2,522. (Id.) A formal collective bargaining
agreement with the Carrier was executed on or around December 7, 2015. (Id.)
Plaintiffs filed suit challenging their placement on the Carrier’s seniority list, alleging
that Defendants breached their duty of fair representation by preventing Legacy TWA Agents
from receiving a seniority status that reflects their time at TWA.
II. Discussion
a.

Standards of review
i.

Report and Recommendation

A district court reviewing a magistrate judge’s recommended ruling “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and
recommendation, the district court reviews de novo the parts of the report and recommendation
to which the party objected. Id.; see also United States v. Romano, 794 F.3d 317, 340 (2d Cir.

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2015). The district court may adopt those portions of the recommended ruling to which no
timely objections have been made, provided no clear error is apparent from the face of the
record. John Hancock Life Ins. Co. v. Neuman, No. 15-CV-1358, 2015 WL 7459920, at *1
(E.D.N.Y. Nov. 24, 2015). The clear error standard also applies when a party makes only
conclusory or general objections, or simply reiterates its original arguments. Chime v. Peak Sec.
Plus, Inc., 137 F. Supp. 3d 183, 187 (E.D.N.Y. 2015) (“General or conclusory objections, or
objections which merely recite the same arguments presented to the magistrate judge, are
reviewed for clear error.” (citation omitted)); see also DePrima v. N.Y.C. Dep’t of Educ., No. 12CV-3626, 2014 WL 1155282, at *3 (E.D.N.Y. Mar. 20, 2014) (collecting cases).
ii.

Rule 12(b)(6)

In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a court must construe the complaint liberally, “accepting all factual allegations in the
complaint as true and drawing all reasonable inferences in the plaintiff’s favor.” Concord
Assocs. L.P. v. Entm’t Prop. Trust, 817 F.3d 46, 52 (2d Cir. 2016) (quoting Chambers v. Time
Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002)); see also Tsirelman v. Daines, 794 F.3d 310, 313
(2d Cir. 2015) (quoting Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir. 1997)).
A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Pension Ben. Guar. Corp. ex rel. St.
Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717–18

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(2d Cir. 2013). Although all allegations contained in the complaint are assumed to be true, this
tenet is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
b.

Unopposed recommendation

Defendants do not object to Judge Bloom’s recommendation that the Court deny their
motion to dismiss the Complaint for failure to join AA as an indispensable party. (R&R 15–16;
Defs. Reply 1–7.)
The Court has reviewed the unopposed portion of the R&R and, finding no clear error,
the Court adopts this recommendation pursuant to 28 U.S.C. § 636(b)(1). Accordingly, the
Court denies Defendants’ motion to dismiss with respect to Plaintiffs’ failure to join AA as an
indispensable party. 2
c.

Plaintiffs’ objections to the R&R and Defendants’ reply

Plaintiffs object to Judge Bloom’s recommendation that the Court dismiss their duty of
fair representation claims. (Pls. Obj. 2–10.) Defendants argue that Plaintiffs’ objections should
be struck for failing to comply with the Court’s Order dated July 26, 2016 that filings must be
personally signed by all Plaintiffs and because the R&R correctly recommended that the Court
dismiss Plaintiffs’ Complaint. (See Defs. Reply 1–7; Order dated July 26, 2016, Docket Entry
No. 78.) For the reasons discussed below, the Court adopts Judge Bloom’s recommendation. 3

2

In addition, none of the parties dispute Judge Bloom’s finding that an independent
federal common law duty of representation — assuming, without deciding, that such a duty
exists — is analyzed in the same manner as the duty of fair representation created by federal
statute. (R&R 15.) Accordingly, the Court finds that the common law duty of fair
representation, if any exists, should be analyzed in the same manner as the statutory duty.
Therefore, the Court’s duty of fair representation analysis applies to Plaintiffs’ claims under both
the Railway Labor Act and federal common law.
3

Because the Court dismisses Plaintiffs’ claims, but grants Plaintiffs leave to amend, the
Court declines to strike Plaintiffs’ objections and does not address whether they constitute an

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i.

Breach of the duty of fair representation

Judge Bloom recommended that the Court dismiss Plaintiffs’ claims under the Railway
Labor Act and federal common law because Plaintiffs have failed to allege a causal connection
between their injuries and Defendants’ actions, and because Plaintiffs have not alleged facts
showing that Defendants engaged in arbitrary, discriminatory or bad faith conduct as required to
establish a breach of the duty of fair representation. (R&R 10–12.)
Plaintiffs argue that Judge Bloom erred in recommending dismissal of their claims
because the R&R: (1) misapprehended key facts alleged in the Complaint; and (2) improperly
applied a heightened legal standard in determining whether Plaintiffs stated a claim for breach of
the duty of fair representation, which led to an erroneous finding that Plaintiffs failed to state a
claim. (Pls. Obj. 1–6.)
1.

The facts alleged in Plaintiffs’ Complaint

Plaintiffs argue that the R&R is based on various facts “which either [] do not appear in
the Complaint at all, or which are misinterpreted or misunderstood.” (Pls. Obj. 2.) Plaintiffs
argue that Judge Bloom did not focus on Defendants’ alleged misconduct surrounding the 2013
merger and “effectively disregard[ed] . . . all of the Complaint’s allegations as to what the
Defendants did in the wake of the [CWA–IBT] Committee’s original decision . . . .” (Pls. Obj.

unsigned filing under Rule 11 of the Federal Rules of Civil Procedure. However, the Court
reminds Plaintiffs that a pro se plaintiff may only represent him or herself in Court, and thus
Rivera or any other Plaintiffs may not submit a filing on behalf of other Plaintiffs. See Lattanzio
v. COMTA, 481 F.3d 137, 139 (2d Cir. 2007) (noting that 28 U.S.C. § 1654 which permits pro se
plaintiffs to represent themselves “does not permit unlicensed laymen to represent anyone else
other than themselves.” (citation and internal quotation marks omitted)); Iannaccone v. Law, 142
F.3d 553, 558 (2d Cir. 1998) (holding that “because pro se means to appear for one’s self, a
person may not appear on another person’s behalf in the other’s cause . . . [but] must be litigating
an interest personal to him”); Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir. 1997) (“[A]
person ordinarily may not appear pro se in the cause of another person or entity.”).

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2–3.) The Court construes Plaintiffs’ argument as objecting to Judge Bloom’s finding that
“Plaintiffs . . . fail to allege a causal connection between their injuries and the Union Defendants’
alleged actions” because Plaintiffs “[i]n essence, seek a remedy for the diminished status they
were assigned pursuant to the 2001 [acquisition] of TWA [by] AA, an injury that occurred more
than fifteen years ago,” (R&R 10), and which predated Defendants’ representation of Plaintiffs.
(Id.) See McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (per curiam)
(“We liberally construe pleadings and briefs submitted by pro se litigants, reading such
submissions to raise the strongest arguments they suggest.” (alteration and internal quotation
marks omitted) (quoting Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007))).
While Plaintiffs seek a remedy related to their treatment at the time of the 2001
acquisition, the Complaint also alleges misconduct during the course of events surrounding the
2013 merger, which in and of itself may constitute a breach of the duty of fair representation.
(Compl. ¶¶ 23–50.) See Haerum v. Air Line Pilots Ass’n, 892 F.2d 216, 219 (2d Cir. 1989)
(observing that a union’s “refusal to renegotiate the seniority list when asked to do so in
November 1987 could be proven a breach of the union’s duty of fair representation entirely
independent” of the initial seniority decision made years before). Therefore, the Court looks to
Plaintiffs’ allegations in connection with the 2013 merger in analyzing whether Plaintiffs state a
claim.
2.

The legal standard for a duty of fair representation claim

Plaintiffs argue that Judge Bloom improperly applied a heightened legal standard in
determining whether Plaintiffs state a claim for breach of the duty of fair representation.
(Pls. Obj. 4–6.)

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“The duty of fair representation is a ‘statutory obligation’ under the NLRA [(National
Labor Relations Act)], requiring a union ‘to serve the interests of all members without hostility
or discrimination . . . , to exercise its discretion with complete good faith and honesty, and to
avoid arbitrary conduct.’” Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. 2015)
(second alteration in original) (quoting Vaca v. Sipes, 386 U.S. 171, 177 (1967)). “The objective
of the duty of fair representation is to provide substantive and procedural safeguards for minority
members of the collective bargaining unit.” Flight Attendants in Reunion v. Am. Airlines, Inc.,
813 F.3d 468, 473 (2d Cir.) (quoting Jones v. Trans World Airlines, Inc., 495 F.2d 790, 798 (2d
Cir. 1974)) cert. denied, 137 S. Ct. 313 (2016). “A union breaches its duty of fair representation
if its actions with respect to a member are arbitrary, discriminatory, or taken in bad faith.”
Figueroa v. Foster, 864 F.3d 222, 229 (2d Cir. 2017) (quoting Fowlkes, 790 F.3d at 388); see
also Flight Attendants in Reunion, 813 F.3d at 473. If a plaintiff shows “that the union’s actions
meet this standard, the plaintiff must then ‘demonstrate a causal connection between the union’s
wrongful conduct and the plaintiff’s injuries.’” Pathania v. Metro. Museum of Art, 563 F. App’x
42, 44 (2d Cir. 2014) (alteration omitted) (quoting Spellacy v. Airline Pilots Ass’n–Int’l, 156
F.3d 120, 126 (2d Cir. 1998)). “A court’s examination of a union’s representation ‘must be
highly deferential, recognizing the wide latitude that negotiators need for the effective
performance of their bargaining responsibilities.’” Alen v. U.S. Airways, Inc., 526 F. App’x 89,
91 (2d Cir. 2013) (quoting Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 78 (1991)). Thus,
a court is required to consider whether a plaintiff’s allegations against a union constitutes
conduct that is “arbitrary, discriminatory or taken in bad faith.” Figueroa, 864 F.3d at 229.
After a careful review of the alleged facts, for the reasons discussed below, the Court
adopts Judge Bloom’s recommendation to dismiss the Complaint because the R&R applied the

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appropriate legal standard and correctly concluded that “plaintiffs fail to allege sufficient factual
support” for the “required elements of a duty of fair representation claim.” (R&R 12.)
A.

Arbitrary conduct

“A union’s actions are ‘arbitrary only if, in light of the factual and legal landscape at the
time of the union’s actions, the union’s behavior is so far outside a wide range of reasonableness
as to be irrational.’” Vaughn v. Air Line Pilots Ass’n, Int’l, 604 F.3d 703, 709 (2d Cir. 2010)
(quoting O’Neill, 499 U.S. at 67 (1991)); see also Lane v. Wakefield, No. 16-CV-1817, 2016 WL
5118301, at *2 (S.D.N.Y. Sept. 20, 2016) (“The Supreme Court’s test for arbitrariness — which
requires that a union behave irrationally — is difficult to meet.” (quoting Acosta v. Potter, 410 F.
Supp. 2d 298, 311 (S.D.N.Y. 2006))); Perero v. Hyatt Corp., 151 F. Supp. 3d 277, 284
(E.D.N.Y. 2015) (“[A] union’s conduct can be classified as arbitrary only . . . when it is without
a rational basis or explanation.” (internal quotation marks omitted) (quoting Marquez v. Screen
Actors Guild, Inc., 525 U.S. 33, 46 (1998))).
Here, the Complaint does not contain facts suggesting that Defendants acted irrationally
and thus arbitrarily. The Complaint notes the growing opposition in October of 2015 to the
CWA–IBT Committee’s initial proposal, including the petition circulated by Legacy AA Agents.
(Compl. ¶ 26.) The Complaint also notes the “numerous communications” directed toward
CWA’s Vice President of District 1, Dennis Trainor. (Id. ¶ 27.) Trainor agreed to “investigate
the matter, and then further respond.” (Id.) Assuming the truth of the allegations that
Defendants demanded a CWA–IBT Committee re-vote and made certain misstatements at the
time the tentative agreement was presented to the union members, Plaintiffs offer no facts to
undermine Defendants’ public explanation that they were motivated by a concern that the change
sought by Plaintiffs would have “disrupted the seniority” of the Legacy AA Agents. (Id. ¶ 38.)

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Plaintiffs suggest that such disruption is unlikely because they and their fellow Legacy TWA
Agents allegedly constitute a “de minimis” number within the broader AA Agents population.
(Id.) However, this does not by itself contradict Defendants’ explanation, particularly in light of
the fact that Plaintiffs, and potentially many of their Legacy TWA Agent colleagues, “have been
continuously employed in that capacity for more than two decades[,] several for more than three
decades,” and would thus surpass a commensurate number of their AA counterparts on the
integrated seniority list. (Id. ¶ 11.) Regardless, Defendants had an obvious interest in supporting
a plan they believed their members would ratify, and “[a] union’s reasoned decision to support
the interests of one group of employees over the competing interests of another group does not
constitute arbitrary conduct.” Spellacy, 156 F.3d at 129 (citations omitted). Even if Defendants
were ultimately mistaken in the belief that the proposal was unpopular, they would not have
breached their duty of fair representation. See United Steelworkers of Am., AFL-CIO-CLC v.
Rawson, 495 U.S. 362, 372–73 (1990) (“The courts have in general assumed that mere
negligence . . . would not state a claim for breach of the duty of fair representation, and we
endorse that view today.”); see also Barr v. United Parcel Serv., Inc., 868 F.2d 36, 43 (2d Cir.
1989).
Finally, as the R&R noted, “[h]ad the Union Defendants reshuffled the seniority list in
plaintiffs’ favor, they would likely have faced claims of discriminatory treatment from thousands
of other members whose seniority would have been diminished as a result.” (R&R 14.) Thus,
accepting the facts as alleged, Defendants’ conduct is not without a rational basis or
explanation. 4

4

Nor was the ultimate decision to use length of service with AA to determine placement
on the seniority list arbitrary, despite Plaintiffs’ efforts to characterize it as such. (Compl. ¶¶ 35,

13

B.

Discriminatory conduct

“A union’s acts are discriminatory when ‘substantial evidence’ indicates that it engaged
in discrimination that was ‘intentional, severe, and unrelated to legitimate union objectives.’”
Vaughn, 604 F.3d at 709 (quoting Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Emps. of
Am. v. Lockridge, 403 U.S. 274, 301 (1971)). A union need not discriminate on the basis of a
constitutionally protected category to breach its duty of fair representation. See Ramey v. Dist.
141, Int’l Ass’n of Machinists and Aerospace Workers, 378 F.3d 269, 276–77 (2d Cir. 2004)
(holding that a union discriminated against certain of its members when it opposed those
members’ grant of seniority in order to “punish” them for decertifying the union and not
participating in a strike); see also Sanders v. Air Line Pilots Ass’n Int’l, 473 F.2d 244, 247 (2d
Cir. 1972) (holding that “it is not proper for a bargaining agent in representing all of the
employees to draw distinctions among them which are based upon their political power within
the union”). However, “[t]he Supreme Court has explained that the duty of fair representation
bars only ‘invidious’ discrimination.’” Ruisi v. Nat’l Labor Relations Bd., 856 F.3d 1031, 1038
(D.C. Cir. 2017) (quoting O’Neill, 499 U.S. at 81 (1991)). “[D]iscrimination is invidious if it . . .
arises from prejudice or animus,” but “classifications according to seniority and skill level or
other employment-related criteria of union members are relevant, rational, and often inevitable.”
Cooper v. TWA Airlines, LLC, 274 F. Supp. 2d 231, 243 (E.D.N.Y. 2003) (citing Considine v.

37, 38, 46, 51.) See Flight Attendants in Reunion v. Am. Airlines, Inc., 813 F.3d 468, 473–74 (2d
Cir.) (holding that “the union’s decision . . . to integrate the two separate seniority lists based on
each flight attendant’s ‘length of service’ cannot fairly be described as either irrational or
discriminatory, even though it ultimately, and unfortunately, disadvantaged the plaintiffs”
(citation omitted)), cert. denied, 137 S. Ct. 313 (2016); see also Humphrey v. Moore, 375 U.S.
335, 370–71 (1964) (holding that a union’s decision to integrate based on length of service “was
neither unique nor arbitrary”).

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Newspaper Agency Corp., 43 F.3d 1349, 1357 (10th Cir. 1994)); see also Camelio v. Int’l Bhd.
of Teamsters, 32 F. Supp. 3d 427, 431 (W.D.N.Y. 2014) (“Discrimination demands a desire to
act or retaliate based on impermissible classifications . . . .” (citation and internal quotation
marks omitted)); Stephens v. 1199 SEIU, AFL-CIO, 45 F. Supp. 3d 284, 293–94 (E.D.N.Y.
2014); cf. Fowlkes, 790 F.3d at 378 (holding that a union breached its duty of fair representation
by refusing to refer a transgender member for work).
Plaintiffs have not pled facts showing that Defendants’ conduct was motivated by any
discriminatory animus against Legacy TWA Agents. Plaintiffs’ allegations that “[a]ll other
[Agents] at the Carrier, except Plaintiffs (and their [L]egacy-TWA colleagues), will thus receive
credit for . . . all of the seniority that they have earned,” (Compl. ¶ 51), does not state facts
sufficient to support a claim of discriminatory conduct. The sole difference in treatment alleged
by Plaintiffs stems from a prior decision made during the 2001 acquisition, not from
discriminatory animus. Such facts cannot sustain a claim that a union discriminated against its
members in violation of the duty of fair representation. See Naugler v. Air Line Pilots Ass’n
Intern., No. 05-CV-4751, 2012 WL 1215291, at *10 (E.D.N.Y. Apr. 11, 2012) (“Not treating
[MidAtlantic Airways] pilots identically to mainline pilots, based on existing agreements setting
the terms of employment, does not constitute discrimination.”), aff’d sub nom. Alen v. U.S.
Airways, Inc., 526 F. App’x 89 (2d Cir. 2013); see also Flight Attendants in Reunion, 813 F.3d at
473 (“[A] showing that union action has disadvantaged a group of members, without more, does
not establish a breach of the duty of fair representation because a union by necessity must
differentiate among its members in a variety of contexts.” (citation and internal quotation marks
omitted)); Vaughn, 604 F.3d at 712 (holding that “there is no requirement that unions treat their

15

members identically as long as their actions are related to legitimate union objectives” (citation
omitted)).
C.

Bad faith conduct

“Bad faith, which encompasses fraud, dishonesty, and other intentionally misleading
conduct, requires proof that the union acted with an improper intent, purpose, or motive.”
Vaughn, 604 F.3d at 709–10 (quoting Spellacy, 156 F.3d at 126); see also Walsh v. Int’l Bhd. of
Elec. Workers (I.B.E.W.) Local 503, No. 14-CV-1677, 2015 WL 5474231, at *5 (S.D.N.Y. Aug.
12, 2015) (“An inquiry into whether a union has breached the duty of fair representation by
acting in bad faith ‘is context-specific and fact-sensitive.’” (quoting Acosta v. Potter, 410
F. Supp. 2d 298, 308 (S.D.N.Y. 2006))).
The Second Circuit has held that if a plaintiff fails to allege that the union’s conduct was
impermissible under its own constitution or bylaws, that the conduct vitiated the contractual
rights of its members, or that the union prejudiced its members’ rightful ability to oppose the
union’s actions, then a plaintiff cannot establish that the union acted in bad faith in breach of the
duty of fair representation. See Spellacy, 156 F.3d at 128–29; Sim v. New York Mailers’ Union
No. 6, 166 F.3d 465, 472–73 (2d Cir. 1999).
In Spellacy v. Airline Pilots Association–International, the Second Circuit considered a
challenge brought by former pilots of Pan American Airlines (“Pan Am”) that their union
breached its duty of fair representation by, among other things, violating its constitution and
bylaws in adopting an unfavorable training plan, entering into “secret agreements” with the
pilots’ employer and making material misrepresentations designed to prevent the disclosure of
such agreements. Spellacy, 156 F.3d at 126–27. The Second Circuit found that the alleged
violation of the union’s constitution and bylaws could not sustain the plaintiffs’ claim because

16

the union’s own interpretation of those documents, “while arguably wrong, [was] not so
unreasonable as to constitute a breach of the duty of fair representation.” Id. at 127. With regard
to the alleged “secret agreements,” the Second Circuit rejected the plaintiffs’ arguments and
distinguished prior Second Circuit precedent, holding that such agreements did not amount to
bad faith because “the Pan Am pilots had no . . . contractual entitlement” to the purported rights
being sacrificed by the union’s conduct. Id. at 129. The Second Circuit similarly rejected the
argument that the union’s related misstatements constituted bad faith, because:
while the [union] delayed confessing its agreement with Pan Am for
a period of time (or masked that agreement by claiming that the
arbitrator decided the issue), the delay did not prejudice the pilots.
The pilots here knew [the union’s] position in time to challenge its
decision, were aware that Pan Am adopted a training policy contrary
to the one advocated by senior pilots, and hired attorneys to file
grievances and organize resistance to Pan Am’s proposed plan.
Under these facts, we cannot say that [the union] acted in bad
faith . . . .
Id.
One year later in Sim v. New York Mailers’ Union No. 6, the Second Circuit affirmed a
district court’s grant of summary judgment to a union alleged to have breached the duty of fair
representation while negotiating a wage agreement for New York Times mailroom employees.
Sim, 166 F.3d at 467–68. The union’s membership had initially voted to reject the agreement,
and it appeared that the issue would be decided through arbitration. Id. at 468. However, union
members began circulating a petition calling for a re-vote, which the plaintiffs alleged “[u]nion
leadership assisted in the preparation of” and “encouraged members to sign.” Id. Upon a revote, union membership ultimately ratified the contested wage agreement. Id. Aggrieved union
members brought suit, claiming that the union had breached its duty of fair representation by,
among other things, holding a second vote. Id. at 472. In rejecting the plaintiffs’ claim based on
the re-vote, the Second Circuit held that “the [u]nion’s decision to permit a second vote . . . did
17

not violate the [u]nion’s constitution or bylaws, and cannot, therefore, be deemed misconduct
that supports a fair representation claim.” Id.
Plaintiffs allege that Defendants engaged in bad faith by requiring that the CWA–IBT
Committee conduct a re-vote and making various misstatements to CWA–IBT Committee
members and their union members while the tentative agreement, which included the ultimate
decision that Legacy TWA Agents would not be credited for their pre-2001 service, was being
presented. (Compl. ¶¶ 28–50.) Plaintiffs have not pled facts establishing any of the deficiencies
recognized in Spellacy and Sim, or any other conduct alleging a violation of the duty of fair
representation. Plaintiffs do not allege that the CWA–IBT Committee’s re-vote, or any of the
alleged conduct committed by Defendants, violated any constitution or bylaws in effect at the
time. 5 See White v. White Rose Food, a Div. of DiGiogio Corp., 237 F.3d 174, 182 (2d Cir.

5

While Plaintiffs allege that a CWA–IBT Committee member leaked the CWA–IBT
Committee’s initial proposal in violation of an agreement to keep discussions confidential,
(Compl. ¶ 16), Plaintiffs do not allege that such conduct violated the constitution or bylaws of
CWA, IBT or the CWA–IBT Association. Moreover, such conduct does not “demonstrate a
causal connection between the [unions’] alleged misconduct and the outcome of the ratification
vote.” Sim v. New York Mailers’ Union No. 6, 166 F.3d 465, 472 (2d Cir. 1999). Plaintiffs’
allegations illustrate that while the CWA–IBT Committee’s initial proposal was made in or
around June of 2015, the leak did not occur until October 2, 2015. (Compl. ¶¶ 17, 24.) On or
around October 17, 2015, the tentative agreement “was presented by Defendants to their
respective memberships,” and the tentative agreement included Defendants’ position opposing a
grant of pre-2001 seniority to Legacy TWA Agents. (Compl. ¶¶ 37–38.) The CWA–IBT
Committee vote which ultimately reversed the initial proposal did not take place until “on or
[around] October 19 or 20, 2015.” (Compl. ¶¶ 33–34.) Balloting for member ratification of the
tentative agreement did not close until “on or [around] November 30, 2015.” (Compl. ¶ 50.)
Under the circumstances of this case, where Defendants made their position public shortly after
the leak, and more than one month before balloting ultimately closed, Plaintiffs have not alleged
a sufficient causal connection between the leak and the ratification of the tentative agreement
that failed to credit them for their pre-2001 service. See Vaughn, 604 F.3d at 711–12 (dismissing
a breach of the duty of fair representation claim “where plaintiffs have failed to plead a causal
connection between [their] claim and their injuries”).

18

2001) (holding that a union’s failure to allow members to ratify an agreement was not bad faith
where the union was not required to do so under its constitution and bylaws).
Furthermore, while Plaintiffs characterize the CWA–IBT Committee’s initial proposal as
having been “fully resolved and agreed,” (Compl. ¶¶ 23, 36), they do not present any allegations
from which the Court could construe that the decision created a contractual right or entitlement
that was subsequently infringed upon by Defendants’ conduct. See Bejjani v. Manhattan
Sheraton Corp., 567 F. App’x 60, 63 (2d Cir. 2014) (holding that a failure to inform union
members of an agreement that was disadvantageous to the plaintiffs “does not create an inference
of bad faith because plaintiffs do not plausibly allege that the [agreement] violated any
unambiguous contractual entitlements . . . and plaintiffs do not allege any intentionally
misleading conduct with regard to plaintiffs’ rights” (alteration, citation and internal quotation
marks omitted)); see also Deboles v. Trans World Airlines, Inc., 552 F.2d 1005, 1016 (3d Cir.
1977) (finding no breach of the duty of fair representation where the “action does not involve a
union attempt to reduce or cancel seniority benefits already conferred upon a minority in a preexisting agreement” (citations omitted)).
Finally, Plaintiffs have not alleged that Defendants’ conduct prejudiced their rightful
ability to challenge the tentative agreement that reflected the new seniority decision. The
Complaint lists a number of alleged misstatements made during the November 4, 2015 meeting
that Defendants held to present the tentative agreement to members, including a statement that
members would be able to “grieve any errors” through arbitration once the new seniority list was
issued. (Compl. ¶ 46.) Plaintiffs claim that such statements were made to “induce [Legacy
TWA Agents’] reliance thereon,” notwithstanding the fact “that they would actually not be able

19

to” challenge their place on the seniority list for reasons other than “clerical or other factual
errors.” (Id. ¶ 47.)
Plaintiffs have not pled facts showing that such statements were intentionally misleading.
In addition, Plaintiffs do not allege that they or their fellow Legacy TWA Agents in fact relied on
such statements in voting to ratify the tentative agreement. Nor do Plaintiffs allege that the
limited grounds upon which the seniority list could be challenged were only made public after
the tentative agreement had been ratified by union members, thus “trick[ing] [them] into
believing that their rights were preserved until it was too late to protest the [union’s] action.”
Spellacy, 156 F.3d at 129 (citations omitted). Plaintiffs allege that the tentative agreement that
was presented to members in October of 2015, before the allegedly misleading statements were
made, contained a letter of agreement with “new, substituted language” reflecting the decision
not to credit Legacy TWA Agents for their pre-2001 service. (Compl. ¶ 37.) Plaintiffs do not
allege that this new letter of agreement did not also disclose the permissible bases for
challenging their placement on the seniority list. Plaintiffs cannot establish that Defendants’
statements at the November 4, 2015 meeting were intentionally misleading if Defendants had in
fact made the permissible bases for challenging the seniority list public to their members several
weeks earlier. Nor can Plaintiffs establish that Defendants’ statements were intentionally
misleading if the permissible bases for challenge were made public to their members before
balloting closed on or around November 30, 2015.
Even assuming the other misstatements that Plaintiffs allege Defendants made at the
November 4, 2015 meeting are sufficient to establish bad faith, they lack a causal connection to
Plaintiffs’ alleged harm. Plaintiffs allege that Attorney Peifer “falsely asserted that the re-vote
had been conducted because, on the date of the original vote, one [CWA–IBT] Committee

20

member had been absent.” (Id. ¶ 43.) However, Plaintiffs expressly note that this statement was
immediately “corrected” by another CWA–IBT Committee member, severing any causal link
between that alleged misstatement and the union members’ ultimate ratification of the tentative
agreement that included the decision not to credit Legacy TWA Agents for their pre-2001
service. (Id.) Plaintiffs further allege that a CWA–IBT Committee member claimed to have
voted “no” during all three CWA–IBT Committee votes regarding Legacy TWA Agent seniority,
but the connection between this misstatement and Plaintiffs’ alleged harm is even more tenuous.
(Id. ¶ 44.) Furthermore, Plaintiffs note that CWA–IBT Committee members had already
disclosed to union members earlier in the meeting that the first vote “had been unanimous.” 6 (Id.
¶ 43.)
While Plaintiffs protest that “before a single document is produced, a single interrogatory
answered, or a single word of deposition testimony taken,” they must “not only plead, but state
specific facts affirmatively demonstrating Defendants’ bad faith,” (Pls. Obj. 5), such facts are
necessary to defeat Defendants’ motion to dismiss the Complaint. Plaintiffs have failed meet the
necessary pleading requirement. 7

6

Plaintiffs’ Complaint further alleges that Attorney Peifer falsely asserted that Legacy
TWA Agents could not be credited for their pre-2001 service because “Defendants would then
have to credit all of their members with the higher pay scale which was then in effect for
American Eagle (‘AE’) employees, and which was to be continued upon, and notwithstanding,
integration.” (Compl. ¶ 45.) Plaintiffs allege, however, that “Defendants did subsequently
reverse themselves, to honor the higher AE pay scale for non-AE members.” (Id.) Without
additional facts regarding who “American Eagle employees” refers to, how such employees were
treated differently than “non-AE members” or Legacy TWA Agents, and why this alleged
misstatement constitutes a breach of the duty of fair representation, the Court is unable to further
assess the sufficiency of this allegation. (Id.)
7

Plaintiffs also argue that Judge Bloom erred because she assumed the truth of certain
factual assertions made by Defendants and did not consider the public policy ramifications of her
recommendation. (Pls. Obj. 6–9.) The Court rejects Plaintiffs’ arguments. With respect to the

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III. Conclusion
For the foregoing reasons, the Court adopts Judge Bloom’s R&R and grants Defendants’
motion to dismiss. The Court grants Plaintiffs sixty days to amend the Complaint. If Plaintiffs
fail to amend the Complaint within sixty days, the Court will dismiss this action with prejudice.

SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: September 29, 2017
Brooklyn, New York

former argument, Plaintiffs assert that Judge Bloom should not have assumed that accounting for
Legacy TWA Agents’ time at TWA would have been disruptive to Legacy AA Agents and
would have exposed the union to countervailing claims. (Pls. Obj. 6–7.) However, the Court
finds Judge Bloom’s reasoning on this point appropriate and supported by the Second Circuit’s
decision in Flight Attendants in Reunion v. American Airlines, Inc. See Flight Attendants in
Reunion, 813 F.3d at 474 (affirming the district court’s dismissal of the complaint and noting
that granting TWA flight attendants seniority based on pre-2001 service “would have resulted in
other American Airlines flight attendants losing their relative seniority, and such a juggling of
the existing seniority ladder would have exposed the union to countervailing claims from those
flight attendants” (citation and internal quotation marks omitted)). With respect to Plaintiffs’
public policy argument that adopting the R&R would “do real harm to the duty of fair
representation [] claim,” (Defs. Obj. 7), the Court finds that it is obligated to measure the
sufficiency of such claims based on the law as established by the Supreme Court and Second
Circuit. This law grants broad deference to unions in conducting the business of representing
their members, and the Court declines to evaluate Plaintiffs’ claims based on a different standard.
See Perero v. Hyatt Corp., 151 F. Supp. 3d 277, 286 (E.D.N.Y. 2015) (rejecting the plaintiffs’
argument that it should “decline to accord the [u]nion the wide latitude that is typically given to
unions” for reasons of “public policy” (citation omitted)).
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