14-1128-cv
Ustad v. Int’l Bhd. of Teamsters, et al.

                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
9th day of June, two thousand fifteen.

Present:    ROSEMARY S. POOLER,
            ROBERT D. SACK,
            CHRISTOPHER F. DRONEY,
                        Circuit Judges.
___________________________________________________

OLA USTAD,

                                     Plaintiff-Appellant,

                              v.                                               No. 14-1128-cv

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
LOCAL 747, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS,

                                     Defendants-Appellees,

NORTH AMERICAN AIRLINES, GLOBAL
AVIATION HOLDINGS, INC.,

                        Defendants.1
___________________________________________________

Appearing for Appellant:                    ROBERT L. HERBST, Herbst Law PLLC, New York, N.Y.




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             The Clerk of the Court is directed to amend the case caption as above.
Appearing for Appellees:               EDWARD M. GLEASON, JR., Law Office of Edward Gleason,
                                       PLLC (Franklin K. Moss, Spivak Lipton LLP, New York,
                                       N.Y., on the brief), Washington, D.C.

       Appeal from the United States District Court for the Eastern District of New York
(Block, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Plaintiff-Appellant Ola Ustad appeals from the March 31, 2014 order of the United States
District Court for the Eastern District of New York (Block, J.) granting summary judgment in
favor of Defendants-Appellees the International Brotherhood of Teamsters and the International
Brotherhood of Teamsters, Local 747 (collectively, the “Union”) on Ustad’s duty of fair
representation claims. We assume the parties’ familiarity with the underlying facts, procedural
history, and specification of issues for review.

         As an initial matter, we conclude that the present appeal is taken from a final appealable
order. See 28 U.S.C. §1291. “To test for finality, reviewing courts employ a practical rather than
a technical analysis.” United States ex rel. Polansky v. Pfizer, Inc., 762 F.3d 160, 163 (2d Cir.
2014) (internal quotation marks omitted). Here, although the district court’s order dismissing
Ustad’s complaint only explicitly adjudicated his claims against the Union and remained silent
as to his claims against Defendants North American Airlines and Global Aviation Holdings, Inc.
(collectively the “Airline”), we nevertheless find appellate jurisdiction. The district court’s
dismissal of Ustad’s claims against the Union precluded, as a matter of law, his claims against
the Airline. See Young v. U.S. Postal Serv., 907 F.2d 305, 307 (2d Cir. 1990) (noting that in a
hybrid duty of fair representation claim against an employer, “the [u]nion’s breach [of the duty
of fair representation] is a prerequisite to consideration of the merits of [a] plaintiff’s claim
against her former employer for improper discharge”). Thus, there is a “ready, plausible
explanation here for the district court’s silence” as to the claims against the Airline. Polansky,
762 F.3d at 164. The district court’s failure to explicitly dismiss the claims against the Airline
was akin to “overlook[ing] a ministerial duty,” and such an omission “is not fatal to finality and
consequent appealability.” Id. at 163 (internal quotation marks omitted).

        Turning to the merits, Ustad argues on appeal that the Union breached its duty of fair
representation by (1) failing to appropriately advise him in the aftermath of the flight incident
that led to his dismissal, and (2) providing inadequate legal representation during the subsequent
arbitration proceedings. We affirm the district court’s grant of summary judgment on both issues.

        In order to show that a union has breached its duty of fair representation, a plaintiff must
show: (1) conduct by the union toward a member that it is “arbitrary, discriminatory, or in bad
faith,” Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44 (1998), and (2) a “causal
connection between the union’s wrongful conduct and [plaintiff’s] injuries,” Spellacy v. Airline
Pilots Ass’n-Int’l, 156 F.3d 120, 126 (2d Cir. 1998). “[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.” Air Line Pilots Ass’n, Int’l v.
O’Neill, 499 U.S. 65, 67 (1991) (internal citation omitted). In addition, “[a] union’s acts are

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discriminatory when substantial evidence indicates that it engaged in discrimination that was
intentional, severe, and unrelated to legitimate union objectives.” Vaughn v. Air Line Pilots
Ass’n, Int’l, 604 F.3d 703, 709 (2d Cir. 2010) (internal quotation marks omitted). Finally, a
finding that a union acted in “bad faith requires a showing of fraudulent, deceitful, or dishonest
action.” White v. White Rose Food, 237 F.3d 174, 179 (2d Cir. 2001) (internal quotation marks
and alterations omitted).

        We first reject Ustad’s claim that his Union-appointed attorney, Patrick Flynn, provided
such inadequate representation during Ustad’s post-termination arbitration proceedings as to
render his conduct arbitrary, and thus a breach of the duty of fair representation. Primarily, Ustad
argues that Flynn failed to adequately investigate the AFIRS flight-tracking data, which Ustad
contends could have exonerated him of wrongdoing. We disagree. The record reveals that, based
on his examination of the contents of the AFIRS data, Flynn made a considered, tactical decision
to attempt to exclude the data and discredit Ustad’s first officer as disoriented during the flight.
While this treatment of the AFIRS data may have ultimately been a tactical error, or even
negligence, such “errors are insufficient to show a breach of the duty of fair representation.”
Barr v. United Parcel Serv., Inc., 868 F.2d 36, 43 (2d Cir. 1989).

        Ustad’s other criticisms of Flynn’s representation are similarly insufficient to show a
breach of the duty of fair representation. Ustad’s argument that Flynn spent inadequate time and
effort preparing for the arbitration is belied by his and his wife’s repeated statements of
satisfaction with Flynn’s representation during and after the arbitration. Moreover, the record
establishes that Flynn spoke to former Union President and General Counsel Gene Solow about
Ustad’s case, reviewed Solow’s file from the earlier stages of the grievance proceedings,
reviewed the AFIRS data, reviewed an FAA report discussing the AFIRS data, discussed the
data with experienced pilot John Herron, reviewed Thompson’s ASAP report, spoke to
Thompson, spoke to Ustad, and prepared for the arbitration hearing with Ustad, Herron, and
Union representative Duncan Parsons. Similarly unpersuasive is Ustad’s contention that Flynn’s
representation was arbitrary because he failed to make the “simple winning argument” that
Thompson’s ASAP report also insulated Ustad from any company discipline. Ustad has failed to
proffer evidence from which a reasonable jury could conclude that Flynn’s failure to make this
argument rises above negligence or tactical error and constitutes arbitrary or bad faith conduct.

         We also reject Ustad’s claim that the Union breached its duty of fair representation by
failing to promptly advise him to file an ASAP report in the aftermath of the flight at issue, and
thereby potentially earn disciplinary immunity. To the extent Union officials violated Union
procedures in failing to advise Ustad of his first officer’s ASAP report as well as his own
opportunity to file an ASAP report, Ustad has provided insufficient evidence to show that this
failure crosses from negligence to being “so far outside [the] wide range of reasonableness as to
be irrational.” Airline Pilots Ass’n, Int’l, 499 U.S. at 67 (internal quotation marks and citation
omitted). Ustad has similarly provided insufficient evidence from which a reasonable jury could
conclude that the Union officials’ actions were discriminatory or taken in bad faith.

         Moreover, Ustad’s failure-to-advise argument also fails for lack of a “causal connection
between the union’s wrongful conduct and [Ustad’s] injuries.” Spellacy, 156 F.3d at 126. As the
district court concluded, because the arbitrator ultimately found that Ustad acted intentionally,
and ASAP reporting provides no disciplinary immunity for intentional wrongdoing, any failure

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to advise Ustad to file an ASAP report is irrelevant. Ustad has failed to overcome this finding of
intentionality by demonstrating that the outcome of the arbitration proceedings would have been
different had he been advised by the Union to file an ASAP report. See Hines v. Anchor Motor
Freight, Inc., 424 U.S. 554, 567 (1976) (“[I]f it seriously undermines the integrity of the arbitral
process the union’s breach also removes the bar of the finality provisions of the contract.”).
While Ustad notes that the Event Review Committee had previously accepted every ASAP
report filed under the program, he provides no evidence that these other pilots had been accused
of intentional wrongdoing or that any such intentional conduct was ultimately insulated from
discipline. Thus, we conclude that Ustad’s duty of fair representation claim also fails on
causation grounds.

        We have considered the remainder of Ustad’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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