18-2254
Caldarera v. International Longshoremen’s Ass’n

                                        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 12th day of March, two thousand nineteen.

PRESENT:
           ROBERT D. SACK,
           REENA RAGGI,
           SUSAN L. CARNEY,
                       Circuit Judges,
_________________________________________

WILLIAM CALDARERA,

                    Plaintiff-Appellant,

                              v.                                         No. 18-2254-cv

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION,
LOCAL 1, GLOBAL CONTAINER SERVICES, INC.,

                    Defendants-Appellees,

DAVID CICALESE, as President of International
Longshoremen’s Association, Local 1,

           Defendant.
_________________________________________
FOR APPELLANT:                                       ARTHUR Z. SCHWARTZ, Advocates for
                                                     Justice, Chartered Attorneys, New York,
                                                     NY.

FOR APPELLEES:                                       JOHN P. SHERIDAN (Kevin J. Marrinan, on
                                                     the brief), Marrinan & Mazzola Mardon,
                                                     P.C., New York, NY, for Appellee
                                                     International Longshoremen’s Association, Local
                                                     1.

                                                     IAN A. WEINBERGER (Donato Caruso, on
                                                     the brief), The Lambos Firm, LLP,
                                                     Tarrytown, NY, for Appellee Global Container
                                                     Services, Inc.


       Appeal from a judgment of the United States District Court for the Southern District
of New York (Caproni, J.).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on July 3, 2018, is
AFFIRMED.

       Plaintiff-appellant William Caldarera appeals from the dismissal with prejudice of his
complaint against defendants-appellees International Longshoremen’s Association, Local 1
(“Local 1”) and Global Container Services, Inc. (“GCT”)1 for failure to state a claim. See
Fed. R. Civ. P. 12(b)(6). We assume the parties’ familiarity with the underlying facts,
procedural history, and arguments on appeal, to which we refer only as necessary to explain
our decision to affirm.

                                                I.

       Caldarera is a longtime member of Local 1 who has worked as a “checker” for 26
years for various companies in the ports of New York and New Jersey. His employment is



1
  Although named in the complaint as “Global Container Services, Inc.,” the defendant-appellee
employer asserts that its correct name is “GCT Bayonne LP.” For the purposes of this order, the
Court will refer to the employer as “GCT.”

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governed by a collective bargaining agreement (“CBA”) between Local 1’s parent union, the
International Longshoremen’s Association (“ILA”), and the New York Shipping Association
(“NYSA”), a consortium of employers that includes GCT. The CBA generally requires port
employers to respect checkers’ seniority in making initial hiring decisions but is silent as to
whether, once hired, senior checkers are guaranteed more desirable placements than junior
co-workers.

       On September 20, 2016, while employed by GCT, Caldarera allegedly quarreled with
Local 1 steward Michael Fulbrook after Caldarera accused Local 1 of tolerating “no show”
jobs. Incensed, Fulbrook allegedly walked into a GCT manager’s office and declared: “I
don’t want him [Caldarera] working here. Check him out!” J. App’x 23. Caldarera alleges that
three days later, on September 23, a top GCT official approached him and advised: “After
today, you are not getting hired here anymore.” Id. Caldarera in fact worked again at GCT
for a brief period in December 2016. In early January 2017, however, he allegedly received a
copy of a “Do not hire” letter from GCT. The letter charged (falsely, Caldarera alleges) that
he failed to carry out his job duties properly and amounted to his dismissal by GCT, an
action urged by Local 1, in Caldarera’s telling. Following this development, Local 1 allegedly
continued to retaliate against Caldarera, by directing other employers to assign him to jobs
that allowed for fewer overtime opportunities, resulting in an approximately 25% decrease in
his income.

       In response, between October 20, 2016, and May 1, 2017, Caldarera filed thirteen
grievances relating to allegedly adverse work placements at various employers. He did not,
however, grieve his dismissal from GCT. Instead, on February 24, 2017, he filed the instant
suit in the U.S. District Court for the Southern District of New York, attaching the
grievances to his complaint.

       In June 2017, after the parties briefed GCT and Local 1’s joint motion to dismiss
Caldarera’s amended complaint, Caldarera’s grievances were adjudicated by a joint ILA-
NYSA Labor Relations Committee (“LRC”), a labor-management body consisting of an
equal number of representatives drawn from NYSA employers and from the ILA. Following
a hearing at which Caldarera was represented by counsel, the LRC rejected all of Caldarera’s

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grievances relating to his work placements. It also ruled that, because Caldarera had not filed
a formal grievance within 180 days of GCT’s alleged refusal to hire him, his newly-asserted
complaint on this score was barred as untimely.2 The CBA provides that, absent deadlock,
the LRC’s determinations are “final and binding, . . . constitute an enforceable arbitration
award, and no further appeal shall be permitted.” J. App’x 74.

       In his amended complaint, Caldarera claims that GCT breached the CBA by
terminating him without cause through its “Do not hire” letter. He also asserts that Local 1
violated its statutory duty of fair representation to him by colluding with GCT to terminate
him from employment at GCT, and with other employers to deprive him of desirable jobs
that are customarily assigned to individuals with his level of seniority.

                                                  II.

       We review de novo a district court’s decision to dismiss a complaint under Rule
12(b)(6), accepting all factual allegations in the complaint as true and drawing all reasonable
inferences in favor of the plaintiff. See Caro v. Weintraub, 618 F.3d 94, 97 (2d Cir. 2010). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While the factual
allegations in a complaint need not be “detailed or elaborate” to survive a Rule 12(b)(6)
motion, they must be “sufficient to raise an entitlement to relief above the speculative level.”
Keiler v. Harlequin Enters., Ltd., 751 F.3d 64, 70 (2d Cir. 2014).

       The District Court heard Caldarera’s claim against GCT under Section 301(a) of the
Labor Management Relations Act, which provides for exclusive federal jurisdiction over
“suits for violation of contracts between an employer and a labor organization representing
employees.” 29 U.S.C. § 185(a). In such cases, a plaintiff is first “required to attempt to
exhaust any grievance or arbitration remedies provided in the collective bargaining
agreement,” and, “[s]ubject to very limited judicial review, [is] bound by the result according


2
  The District Court took judicial notice of the LRC decision pursuant to Federal Rule of Evidence
201(b). We identify no error in this regard.

                                                   4
to the finality provisions of the agreement.” DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151,
163–64 (1983). A narrow exception to this rule may lie, however, when “the union
representing the employee in the [grievance] procedure acts in such a discriminatory,
dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation.” Id. at
164. In such cases, an employee may bring a “hybrid” suit against both employer and union,
where he must both show that the “discharge was contrary to the contract” and “carry the
burden of demonstrating a breach of duty by the Union.” Id. at 165 (internal quotation
marks omitted).

       Caldarera concedes that he failed to exhaust his contractual remedies as to his
challenged termination from GCT. His hybrid claim is therefore viable only if he can
demonstrate that initiating the grievance process as to this termination would have been
futile. He may do so if he can plausibly allege, for example, an employer-union conspiracy to
deprive him of his rights under the contract. See Hiller v. Liquor Salesmen’s Union Local No. 2,
338 F.2d 778, 779 (2d Cir. 1964) (“[W]here the employee’s case is based upon a conspiracy
between his union and his employer . . . he cannot be forced to submit that issue to an
arbitration between the employer and the union.”); Desrosiers v. Am. Cyanamid Co., 377 F.2d
864, 870 (2d Cir. 1967) (denying motion to dismiss where the allegations of an “employer-
union conspiracy” were sufficient to “render[] futile the filing of a written grievance”).
Although we ultimately agree with the District Court that the LRC decision was binding, we
first consider whether this exception might excuse his failure to exhaust.

       We conclude that Caldarera has not plausibly pleaded an “employer-union
conspiracy” that would excuse his failure to file a grievance relating to his termination from
GCT. First, Caldarera’s allegation that filing a grievance relating to his purported termination
from GCT would have been futile is undermined by the fact that the amended complaint
itself cites thirteen other grievances filed by Caldarera—including at least one relating to
dissatisfaction with his work placement at GCT. It is implausible that Caldarera would utilize
the grievance process so extensively for various CBA disputes, including one with GCT, yet
consider it futile to do so only for his termination dispute. See Iqbal, 556 U.S. at 678.



                                                 5
        Second, Caldarera’s allegations of an “employer-union conspiracy” are at best
skeletal. The amended complaint asks the Court to infer the existence of impermissible
collusion exclusively based on Caldarera’s exchange with Fulbrook in September 2016, a
comment made by a GCT officer several days later, and the “Do not hire” letter that
Caldarera received several months afterwards. But, apart from a rough proximity in time, it
pleads no facts that would allow the Court to infer a causal connection between Fulbrook’s
isolated remark in September 2016 and the “Do not hire” letter of January 2017. This does
not suffice to “nudge[] [Caldarera’s] claims [concerning an employer-union conspiracy]
across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. Caldarera’s hybrid
claim against GCT and Local 1 is therefore barred because he failed to exhaust his
contractual remedies.3

                                                   III.

        The District Court also interpreted Caldarera’s complaint to pursue “standalone”
claims against Local 1 for breaching its duty of fair representation, both with regard to his
alleged termination by GCT and his dissatisfaction with his work assignments at other
employers. To state a claim for breach of a union’s statutory duty of fair representation,
Caldarera must plausibly allege union actions that “are wholly arbitrary, discriminatory, or in
bad faith.” Spellacy v. Airline Pilots Ass’n-Int’l, 156 F.3d 120, 126 (2d Cir. 1998) (internal
quotation marks and alteration omitted). A union’s actions are unlawfully “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) (citation omitted). A finding of bad faith, in turn,
requires a showing of “fraudulent, deceitful, or dishonest action.” Sim v. New York Mailers’
Union No. 6, 166 F.3d 465, 472 (2d Cir. 1999).

        We affirm the District Court’s dismissal of Caldarera’s claim that Local 1 breached its
duty of fair representation by colluding to have him terminated by GCT. His allegations of



3  This is the same conclusion the LRC reached with respect to the termination claim against GCT, which is
itself a final and binding arbitration decision. See DelCostello, 462 U.S. at 164.


                                                     6
collusion regarding termination are similarly conclusory to his allegations that an “employer-
union” conspiracy excused him from filing a written grievance, and, as such, are insufficient
to state a plausible claim. See Twombly, 550 U.S. at 561.

         Caldarera’s assertion that Local 1 breached its duty of fair representation by itself
steering him into less desirable work assignments fares no better. As the District Court held
in its July 3, 2018 opinion and order, Caldarera pleads no facts that would connect his
September 2016 altercation with Fulbrook to “the proliferation of suboptimal assignments
he received from multiple employers—not a single conversation, meeting, or other evidence
of the alleged coordination.” Caldarera v. Int’l Longshoremen’s Ass’n, Local 1, No. 17-CV-1414
(VEC), 2018 WL 3242269, at *4 (S.D.N.Y. July 3, 2018). The grievances attached to the
complaint do not allege any bad faith or discriminatory actions by any Local 1 steward or
employer representative against Caldarera. Instead, they claim only lost wages based on the
notion that, under the CBA, his seniority entitles him to favorable job assignments once
hired.

         Furthermore, the LRC expressly rejected Caldarera’s interpretation of his entitlements
under the CBA. It explained that “[i]t has been the longstanding and contractually authorized
practice in the Port of New York and New Jersey that seniority protects a checker’s right to
be hired for the day, but seniority does not deprive an employer of the management rights of
assigning employees to specific work functions as the employer deems best for the efficiency
and operation of the employer’s terminal.” J. App’x 233. We are as bound by the LRC’s
interpretation of the CBA as we would be by an arbitral award. See Gen. Drivers, Warehousemen
& Helpers, Local Union No. 89 v. Riss & Co., 372 U.S. 517, 519 (1963) (“[I]f the award at bar is
the parties’ chosen instrument for the definitive settlement of grievances under the [CBA]
. . . it is of course not open to the courts to reweigh the merits of the grievance.”). The LRC
ruling is also persuasive evidence that Local 1 did not act in bad faith or arbitrarily. Because
Caldarera failed to make any non-conclusory allegations from which to infer that Local 1
engaged in arbitrary, discriminatory, or bad faith conduct, we affirm the District Court’s
determination as to Caldarera’s work assignments claim as well.



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                                        * * *

      We have considered Caldarera’s remaining arguments and conclude that they are
without merit. For the foregoing reasons, the District Court’s judgment is AFFIRMED.



                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk of Court




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