14-0279-cv
Martino v. Metro North Commuter Railroad Co., 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 31st day of October, two thousand fourteen.

PRESENT:            RALPH K. WINTER,
                    JOHN M. WALKER, JR.,
                    JOSÉ A. CABRANES,
                                 Circuit Judges.


MICHAEL MARTINO,

                    Plaintiff-Appellant,

                              v.                                     No. 14-0279-cv

METRO NORTH COMMUTER RAILROAD COMPANY,
ASSOCIATION OF COMMUTER RAIL EMPLOYEES,
LOCAL DIVISION 9, MICHAEL F. DOYLE,

                    Defendants-Appellees.


FOR PLAINTIFF-APPELLANT:                               BARBARA E. GARDNER, Law Office of
                                                       Barbara E. Gardner, Manchester, CT.

FOR DEFENDANT-APPELLEE METRO
NORTH COMMUTER RAILROAD
COMPANY:                                               BECK S. FINEMAN, Ryan Ryan Deluca LLP,
                                                       Stamford, CT.
FOR DEFENDANTS-APPELLEES
ASSOCIATION OF COMMUTER RAIL
EMPLOYEES, LOCAL DIVISION 9,
DOYLE:                                                  VINCENT F. O’HARA, Holm & O’Hara LLP,
                                                        New York, NY.


        Appeal from a June 24, 2013 judgment and a January 2, 2014 order of the United States
District Court for the District of Connecticut (Janet Bond Arterton, Judge).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment and order of the District Court be and hereby
are AFFIRMED.

         Plaintiff-appellant Michael Martino (“Martino”) appeals the June 24, 2013 judgment of the
District Court granting defendants’ motion for judgment on the pleadings and the January 2, 2014
order denying plaintiff’s motion for reconsideration. Martino’s complaint brought a hybrid claim
under the Labor Management Relations Act (“LMRA”) against his former employer, Metro North
Commuter Railroad Company, and against his former union, Association of Commuter Rail
Employees (“ACRE”), and ACRE chairman Michael F. Doyle in his representative capacity, for
breach of the collective bargaining agreement and breach of the union’s duty of fair representation,
respectively. Martino, a locomotive engineer, also unsuccessfully sought to vacate the arbitration
award issued by a special adjustment board as part of a disciplinary action stemming from multiple
failures to perform certain brake tests required by federal regulation and by Metro North. We
assume the parties’ familiarity with the underlying facts and procedural history of the case.

         We review the dismissal on a motion for judgment on the pleadings under Fed. R. Civ. P.
12(c) by the same de novo standard applicable to dismissals under Fed. R. Civ. P. 12(b)(6). Kalyanaram
v. Am. Ass’n of Univ. Professors at the N.Y. Inst. of Tech., 742 F.3d 42, 46 (2d Cir. 2014). In order to
survive a motion for judgment on the pleadings, a complaint “must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Bank of N.Y. v. First
Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) (internal quotation marks omitted). We must draw
all reasonable inferences in favor of the plaintiff. Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009).
We review the denial of a motion for reconsideration for “abuse of discretion.” Analytical Surveys,
Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012). See generally In re Sims, 534 F.3d 117, 132
(2d Cir. 2008) (explaining the term of art “abuse of discretion,” which includes errors of law and
clearly erroneous assessments of the evidence).




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         Martino’s hybrid claim1 contains two elements: “(1) that the employer breached a collective
bargaining agreement and (2) that the union breached its duty of fair representation vis-à-vis the
union members.” White v. White Rose Food, 237 F.3d 174, 178 (2d Cir. 2001) (citing DelCostello v. Int’l
Bhd. of Teamsters, 462 U.S. 151, 164-65 (1983)). The claim of a breach of the union’s duty of fair
representation itself requires two elements: (1) conduct by the union toward a member that is
“arbitrary, discriminatory, or in bad faith,” Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44 (1998)
(citation omitted), 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 finding
of arbitrary conduct is appropriate only if “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)
(quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953)). A finding of “bad faith requires a
showing of fraudulent, deceitful or dishonest action.” White, 237 F.3d at 179 (brackets omitted)
(quoting Sim v. N.Y. Mailers’ Union No. 6, 166 F.3d 465, 472 (2d Cir. 1999)). Our review of an
alleged breach of the union’s duty of fair representation is “highly deferential, recognizing the wide
latitude that negotiators need for the effective performance of their bargaining responsibilities.”
O’Neill, 499 U.S. at 78.

         In his complaint, Martino alleged the following five purported breaches by the union: (1)
failure to object to prior disciplinary history cited in Metro North’s brief, (2) failure to advance the
“crucial” argument that Metro North’s offer of reinstatement, which Martino declined, should be
considered an admission that the discharge was not supported by just cause, (3) failure to present
certain witnesses, including a Federal Railroad Administration Inspector and an expert on Metro
North Rules, (4) failure to inform the arbitrators of the pending parallel appeal before the
Locomotive Engineer Review Board (“LERB”), and (5) failure to “progress” three previous
disciplinary incidents dating from 1997, 1998 and 2000 through the full appeals process. Second
Am. Compl. ¶¶ 16-17, 20-25, 30; Appellant’s Br. at 22-24; Appellee ACRE and Doyle’s Br. at 20-21.
Martino contends that these actions constitute breaches of his union’s duty of fair representation,
and consequently that the district court erred in dismissing his hybrid claim.

         For essentially the reasons stated by the District Court, we conclude that Martino has failed
to plead a plausible claim of breach of the union’s duty of fair representation. Even when
considered in the light most favorable to plaintiff, Martino has failed to show union conduct that is
arbitrary or in bad faith. At most, his allegations support an inference of tactical error or negligence,
neither of which amounts to a breach of the duty of fair representation. See Vaughn v. Air Line Pilots
Ass’n, Int’l, 604 F.3d 703, 709 (2d Cir. 2010) (quoting Barr v. United Parcel Serv., Inc., 868 F.2d 36, 43
(2d Cir. 1989)).

1          Not at issue here, but mentioned in passing by Appellee Metro North, is whether Martino’s hybrid claim was
improperly brought under the LMRA, given that the parties are subject instead to the Railway Labor Act, 45 U.S.C. §§
151 et seq. See Appellee’s Br. at 9 n.5. Because, as Metro North acknowledges, hybrid actions are available pursuant to
the Railway Labor Act, we need not decide this question here. See West v. Conrail, 481 U.S. 35, 36 (1987) (recognizing
hybrid suit against an employer, union, and union representative under the Railway Labor Act).

                                                            3
        Plaintiff’s second claim to support vacatur of the arbitral award confirming his termination
was also properly dismissed. Pursuant to the Railway Labor Act (“RLA”), 45 U.S.C. § 153, First (q),
an arbitral award may be set aside only (1) “for failure of the division to comply with the
requirements of this chapter,” (2) “for failure of the order to conform, or confine itself, to matters
within the scope of the division’s jurisdiction, or” (3) “for fraud or corruption by a member of the
division making the order.” Precedent in this Circuit adds as a fourth basis for vacatur due process
violations. Shafii v. PIC British Airways, 22 F.3d 59, 63-64 (2d Cir. 1994).

        As plaintiff acknowledges, the scope of judicial review of a labor board’s arbitral decision is
“among the narrowest known to the law.” Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 91 (1978). See
also Appellant’s Br. at 26. Inasmuch as the case at bar constitutes a “minor dispute” regarding
employee discipline and discharge, the Supreme Court “time and again has emphasized and re-
emphasized that Congress intended minor grievances of railroad workers to be decided finally by the
Railroad Adjustment Board.” United Transp. Union v. Nat’l R.R. Passenger Corp., 588 F.3d 805, 810 (2d
Cir. 2009) (quoting Gunther v. San Diego & Ariz. E. Ry. Co., 382 U.S. 257, 263 (1965)). “[W]here
fraud is not an issue we ask only whether the arbitrators did the job they were told to do—not
whether they did it well, or correctly, or reasonably, but simply whether they did it.” Id. (quoting
CSX Transp., Inc. v. United Transp. Union, 950 F.2d 872, 877 (2d Cir. 1991)).

         Both below and on appeal, Martino’s arguments primarily express his dissatisfaction with the
prudence and judgment of the arbitral award, which is outside our scope of review. He exhumes
many of the same facts alleged to be breaches of the union’s duty of fair representation and then
attempts unsuccessfully to fit them into the framework applicable to his vacatur claim. For instance,
Martino alleges that the omission of the fact of the unrelated LERB appeal constituted a failure to
comply with RLA procedural requirements; that the arbitrator’s purported consideration of his prior
disciplinary history (an allegation unsubstantiated by the record or by the arbitrator’s report)
constituted fraud; and that the arbitral board exceeded its jurisdiction by issuing a “wholly baseless”
award. Appellant’s Br. at 27-33; Second Am. Compl. ¶¶ 36-37. Martino further contends that he
suffered due process violations because the board did not create a transcript of its proceedings, and
because plaintiff was unable to call certain witnesses for reasons unspecified and unattributed to the
board itself. Second Am. Compl. ¶ 36; Appellant’s Br. at 31-33.

          The district court already considered these arguments and found that they failed to establish
any of the grounds required to set aside the arbitrator’s award. Martino v. Metro North Commuter R.R.
Co., et al., No. 3:10-cv-1816(JBA), 2013 WL 3208548, at *8-10 (D. Conn. Jun. 24, 2013). Especially
in light of the high threshold for vacatur of arbitral awards, we agree.

         Finally, the district court did not abuse its discretion in denying Martino’s motion for
reconsideration, which essentially attempted to relitigate issues already resolved. See Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).


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                                       CONCLUSION

       We have considered all of the arguments raised by plaintiff on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the District Court’s June 24, 2013 judgment
and January 2, 2014 order.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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