      16-717
      Roy v. Buffalo Philharmonic Orchestra


                              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 TO 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 March, two thousand seventeen.

      PRESENT:
                        ROBERT A. KATZMANN,
                            Chief Judge,
                        AMALYA L. KEARSE,
                        DEBRA ANN LIVINGSTON,
                            Circuit Judges.


      PIERRE ROY,

                                  Plaintiff-Appellant,

                        v.                                                   No. 16-717

      BUFFALO PHILHARMONIC ORCHESTRA
      SOCIETY, INC., MUSICIANS ASSOCIATION
      OF BUFFALO NEW YORK LOCAL NO. 92,

                                  Defendants-Appellees.



      For Plaintiff-Appellant Pierre Roy:                     LINDA LALLI STARK, Steven M. Cohen (on the
                                                              brief), HoganWillig, PLLC, Amherst, NY.

      For Defendant-Appellee Buffalo                          SCOTT P. HORTON, Bond, Schoeneck & King,
      Philharmonic Orchestra Society, Inc.:                   PLLC, Buffalo, NY.

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For Defendant-Appellee Musicians                      CATHERINE CREIGHTON, Creighton Johnsen &
Association of Buffalo New York                       Giroux, Buffalo, NY.
Local No. 92:


          Appeal from a judgment of the United States District Court for the Western District of

New York (Telesca, J.).

          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

          Plaintiff-appellant Pierre Roy appeals from the judgment of the United States District

Court for the Western District of New York (Telesca, J.) entered on February 10, 2016, denying

Roy’s amended petition to vacate the arbitration award, dismissing Roy’s breach of duty of fair

representation claim against defendant-appellee Musicians Association of Buffalo New York

Local No. 92 (the “Union”), and granting the cross-motion to confirm the arbitration award of

the Union and defendant-appellee Buffalo Philharmonic Orchestra Society, Inc. (“BPO”). We

assume the parties’ familiarity with the underlying facts, procedural history, and issues on

appeal.

          Roy’s “suit, which alleges that the employer breached the [collective bargaining

agreement (“CBA”)] and that the union breached its duty of fair representation, is known as a

hybrid § 301/fair representation claim,” Carrion v. Enter. Ass’n, Metal Trades Branch Local

Union 638, 227 F.3d 29, 33 (2d Cir. 2000), and it comprises two causes of action. “The suit

against the employer rests on § 301, since the employee is alleging a breach of the collective

bargaining agreement. The suit against the union is one for breach of the union’s duty of fair

representation . . . .” DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164 (1983). Although

the arbitration decision Roy challenges here is final, he “may go behind a final and binding

award under a collective-bargaining agreement and seek relief against his employer and

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union . . . when he demonstrates that his union’s breach of its duty ‘seriously undermine[d] the

integrity of the arbitral process.’” United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 61 (1981)

(quoting Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567 (1976)). To this end, we

consider the integrity of the arbitration award, as well as Roy’s claim that the Union breached its

duty of fair representation.

   I. Arbitration Award

       “We review a district court decision upholding or vacating an arbitration award de novo

on questions of law and for clearly erroneous findings of fact.” Wackenhut Corp. v.

Amalgamated Local 515, 126 F.3d 29, 31 (2d Cir. 1997). Where, as here, a dispute is resolved

through arbitration in accordance with a CBA, “[j]udicial review of a labor-arbitration decision

pursuant to such an agreement is very limited.” Major League Baseball Players Ass’n v. Garvey,

532 U.S. 504, 509 (2001). Although the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq.,

does not apply to arbitrations conducted pursuant to the Labor Management Relations Act

(“LMRA”), federal courts often look to the FAA for guidance in labor arbitration cases. See

Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 820 F.3d 527, 545

n.13 (2d Cir. 2016). The FAA’s limited bases for vacating an arbitration award include instances

where the award was procured by corruption, fraud, or undue means; where there was evident

partiality on the part of the arbitrator; where the arbitrator was guilty of misconduct in refusing to

hear evidence material to the controversy; or where the arbitrator exceeded his power. See 9

U.S.C. § 10(a).

       Plaintiff-appellant raises four issues with the arbitration award, three of which he claims

stem from the Union’s alleged breach. First, Roy contends that the arbitrator committed

misconduct by refusing to admit into evidence recordings and an accompanying transcript made



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by Roy that allegedly capture the events of two meetings in dispute during the arbitration

proceedings. “Arbitrators are accorded great deference in their evidentiary determinations,”

Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 107 (2d Cir.

2013), and they “have substantial discretion to admit or exclude evidence,” LJL 33rd St. Assocs.,

LLC v. Pitcairn Propr. Inc., 725 F.3d 184, 195 (2d Cir. 2013). “[E]xcept where fundamental

fairness is violated, arbitration determinations will not be opened up to evidentiary review.”

Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20 (2d Cir. 1997).

       “[W]e have never held that the requirement of ‘fundamental fairness’ applies to

arbitration awards under the LMRA,” Nat’l Football League Mgmt. Council, 820 F.3d at 545

n.13, but we need not resolve this question here because Roy does not point to any actions on the

part of the arbitrator that violated the fundamental fairness of the arbitration. Roy contends that

the recordings and transcript would have substantiated his version of a dispute between Roy and

BPO concerning his demeanor, negotiations over his salary, and his role in the orchestra, but the

arbitrator expressly stated that this particular dispute was not a factor in his decision. The second

meeting, between Roy and Maestro JoAnn Falletta, involved a discussion about whether he was

purposefully playing beneath his ability. Apart from Falletta’s testimony, the arbitrator expressly

found in his Decision and Award of Arbitrator (“Award”) that there was a “consistent,

overwhelming pattern of playing that was out of the ordinary and that had an impact on nearby

musicians,” and this finding was based on testimony from as many as nine different musicians in

addition to Falletta. Award at 37–38. Falletta’s claims about Roy’s behavior during that meeting,

moreover, were not among the “most serious allegations” identified by the arbitrator that

“justif[ied] the BPO’s actions.” Id. at 36.




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       Plaintiff-appellant also argues that the arbitrator exceeded his powers by hearing

testimony concerning complaints and concerns about Roy’s musical performance and musical

competence, allegations that Roy contends may not be brought via arbitration under the Union’s

and BPO’s CBA. Contrary to Roy’s contention, however, the CBA states only that the arbitration

provision “shall not be invoked for non-renewal matters based upon alleged musical

incompetence.” App. 379. Because Roy received a termination for just cause, and because the

arbitrator found Roy’s behavior to be “deliberate” — and far from incompetent — “at least in a

substantial number of” occasions, Award at 38, his behavior, if anything, was musical

impertinence, and so the musical incompetence provision is not relevant here.

       In addition, plaintiff-appellant contends that the arbitrator improperly considered the

testimony of BPO’s witnesses — fellow musicians who allegedly had petty grievances against

Roy — and failed to credit witnesses whose accounts corroborated Roy’s versions of events. Roy

contends “[t]here was clearly a strong bias against Mr. Roy among the various witnesses for the

BPO” and that “[t]his type of misconduct and corruption is grounds to vacate” the award. Pl.-

App.’s Br. 30. To overturn an arbitration award on these grounds, it must be “made abundantly

clear that it was obtained through corruption, fraud, or undue means.” YLL Irrevocable Trust,

729 F.3d at 104 (quoting Karppinen v. Karl Kiefer Mach. Co., 187 F.2d 32, 34 (2d Cir. 1951)).

Roy’s allegations fall far short. The arbitrator noted the difficulty of “tough credibility

questions,” and pledged to “do the best I can with the observations that many witnesses made in

the course of this case.” Award at 36. To this end, the arbitrator expressly discounted many of

the claims made by witnesses testifying on behalf of the BPO, and he identified a number of

problems with the BPO’s handling of the disputes between Roy and other musicians. The

arbitrator noted in particular BPO’s failure to bring other musicians’ concerns to Roy’s attention



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so that he might alter his behavior. Indeed, the arbitrator concluded that “[a]n award of a year’s

pay appropriately balances the equities and responsibilities in this case. It acknowledges that the

BPO did not give Mr. Roy a chance to address some of these problems when they first came to

the attention of the BPO. . . .” Id. at 45. However, the arbitrator also found that “Roy bears most

of the responsibility for the events that led to his termination.” Id. Given the arbitrator’s thorough

and evenhanded treatment of the competing accounts, it cannot be said that the award was

obtained through fraud, corruption, or undue means.

         Roy’s remaining argument to vacate the award is that it is against public policy. While

Roy’s concern about his difficulty in finding new employment in a career where professional

orchestra musician positions are extremely limited is understandable, this problem does not

implicate a well defined and dominant public policy concern, and so it is not a proper basis to

vacate an arbitration award. See Schwartz v. Merrill Lynch & Co., 665 F.3d 444, 452 (2d Cir.

2011).

   II. Duty of Fair Representation

         Linked to his petition to vacate the arbitration award is Roy’s claim against the Union

alleging a breach of its duty to fairly represent Roy during the course of the arbitration. The

district court dismissed this claim for failure to state a claim, and on appeal, we “review de novo

a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint

liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable

inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.

2002).

         Roy contends that the Union’s actions were arbitrary and constituted bad faith, grounds

for a finding of a breach of the Union’s duty of fair representation. See Marquez v. Screen Actors



                                                  6
Guild, Inc., 525 U.S. 33, 44 (1998). “A union acts in bad faith when it acts with an improper

intent, purpose, or motive,” Spellacy v. Airline Pilots Ass’n-Int’l, 156 F.3d 120, 126 (2d Cir.

1998), while “arbitrary conduct amounting to a breach is . . . intentional conduct by union

officials [or] acts of omission which, while not calculated to harm union members, ‘may be so

egregious, so far short of minimum standards of fairness to the employee and so unrelated to

legitimate union interests as to be arbitrary.’” N.L.R.B. v. Local 282, Int’l Bhd. of Teamsters,

Chauffeurs, Warehousemen & Helpers of Am., 740 F.2d 141, 147 (2d Cir. 1984) (quoting

Robesky v. Qantas Empire Airways Ltd., 573 F.2d 1082, 1090 (9th Cir. 1978)). The burden on

the plaintiff in a hybrid § 301/fair representation case is to demonstrate a causal connection

between the union’s wrongful conduct and his injuries, showing that the “breach must have

contributed to the arbitrator’s making an erroneous decision.” Wood v. Int’l Bhd. of Teamsters,

Chauffeurs, Warehousemen & Helpers of Am., Local 406, 807 F.2d 493, 500 (6th Cir. 1986).

       Linking his objections to the arbitration award to the Union’s actions, Roy in his

amended petition alleged that the Union “breached [its] duty to Petitioner by inadequately

representing” him during the arbitration. Am. Pet. ¶ 34. He claims that the Union “failed to

properly cross-examine BPO witnesses, raise objections and introduce evidence,” id. ¶ 35,

“failed to properly object to evidence presented on musical performance,” id. ¶ 36, and “failed to

advance crucial arguments” pertaining to the aforementioned recordings and transcript Roy

sought to have admitted into evidence, id. ¶ 37, all issues discussed above. None of the actions

Roy identified in his complaint come close to demonstrating improper intent, purpose, or motive,

or egregious behavior. After all, “[t]actical errors are insufficient to show a breach of the duty of

fair representation; even negligence on the union’s part does not give rise to a breach.” Barr v.

United Parcel Serv., Inc., 868 F.2d 36, 43 (2d Cir. 1989). Such tactical choices are precisely



                                                  7
what the Union contends happened here: any failure of its counsel to object to witness testimony

and discussion of Roy’s musical performance or to press for admission of Roy’s transcript and

recordings falls within the range of reasonable tactical decisions. At the motion-to-dismiss stage,

of course, the question is whether Roy’s “allegations ‘nudge [his claim] across the line from

conceivable to plausible,’” Vaughn v. Air Line Pilots Ass’n, Int’l, 604 F.3d 703, 710 (2d Cir.

2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009)). They do not; the Union counsel’s

choices concerning the particulars of cross-examination tactics and evidence admissions cannot

plausibly be construed as egregious as pleaded.

       In plaintiff-appellant’s memorandum in support of his amended petition to vacate the

award, which the district court “regarded as analogous to an amended complaint filed under Fed.

R. Civ. P. 15(a)(1)(B) in response to a motion to dismiss,” Text Order, No. 15-283 (May 8,

2015), ECF No. 11, Roy raised the additional allegation that while the arbitration was still

ongoing, the Union demanded that Roy deposit $15,000 into an account to compensate the

Union’s counsel for his representation of Roy at arbitration. Roy contends this demand was not

contemplated by the CBA and that it constitutes bad faith on the part of the Union. However, to

establish a claim of bad faith, a plaintiff must demonstrate not only bad faith but also “a causal

connection between the union’s wrongful conduct and [his] injuries.” Spellacy, 156 F.3d at 126.

This Roy has not done. Roy vaguely pleaded that after he refused to contribute to the cost of

arbitration, “[w]hile representation continued, it [was] clear that the Union was not happy with

having to represent Mr. Roy and did not fully support his concerns and interests.” Memo. in

Support of Am. Pet. at 12. Yet his evidence that the Union did not support his concerns and

interests is the same set of grievances discussed above concerning tactical choices made during

arbitration; none of those allegations nudge his claim from conceivable to plausible evidence of



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bad faith, let alone suggest that they might have altered the outcome of the arbitration. In short,

Roy has not pointed to any actions taken or not taken by the Union that “contributed to the

arbitrator’s making an erroneous decision.” Wood, 807 F.2d at 500 (emphasis added).

       We have considered all of Roy’s contentions on appeal and have found in them no basis

for reversal. For the reasons stated herein, the judgment of the district court is AFFIRMED.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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