13-2860-cv
Bejjani v. Manhattan Sheraton Corp.


                                  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
ASUMMARY 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 27th day of May, two thousand fourteen.

PRESENT: ROBERT D. SACK,
                 REENA RAGGI,
                 DENNY CHIN,
                                 Circuit Judges.
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JOSEPH BEJJANI, HENRY BOLEJSZO, ALAIN
BREDA, AHMAD BULLA, GEOFFREY HABERER,
RUHEL HASSAN, RICKY GARCIA, ABDELKABIR
KAHTANE, MOHAMMED KHANFRI, KATHY
KRINKE, STYLIANOS LOUKISSAS, ERICH LUNZER,
JARIO MARTINEZ, EDILBERTO MORCOS, AART
VAN DERLAAN, OSCAR FLORES,
                                 Plaintiffs-Appellants,

JOHN O’CONNOR,
                                      Plaintiff,

                                v.                                       No. 13-2860-cv

MANHATTAN SHERATON CORPORATION, dba ST.
REGIS HOTEL, NEW YORK HOTEL AND MOTEL



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TRADES COUNCIL, AFL-CIO,
                                 Defendants-Appellees.
----------------------------------------------------------------------

APPEARING FOR APPELLANTS:                        ROBERT N. FELIX, ESQ., New York,
                                                 New York.

APPEARING FOR APPELLEES:                         MICHAEL STARR (Katherine Healy Marques,
                                                 on the brief), Holland & Knight, LLP, New
                                                 York, New York, for Appellee Manhattan
                                                 Sheraton Corp., dba St. Regis Hotel.

                                                 BARRY NEAL SALTZMAN (Vincent F. Pitta,
                                                 Danya Ahmed, on the brief), Pitta & Giblin LLP,
                                                 New York, New York, for Appellee New York
                                                 Hotel and Motel Trades Council, AFL-CIO.

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

of New York (J. Paul Oetken, Judge).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on June 28, 2013, is AFFIRMED.

        Plaintiffs are banquet servers employed by defendant Manhattan Sheraton

Corporation, doing business as St. Regis Hotel (the “Hotel”), and represented by defendant

New York Hotel and Motel Trades Council, AFL-CIO (the “Union”). Plaintiffs appeal

from the dismissal of their claims that the Hotel violated terms of the operative collective

bargaining agreement and that the Union violated its duty of fair representation. We

review de novo the dismissal of a complaint under Fed. R. Civ. P. 12(b)(6), see Vaughn v.

Air Line Pilots Ass’n, Int’l, 604 F.3d 703, 709 (2d Cir. 2010), accepting all factual



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allegations as true and drawing all reasonable inferences in favor of the plaintiffs, see

Askins v. Doe No. 1, 727 F.3d 248, 252–53 (2d Cir. 2013). We assume the parties’

familiarity with the facts and the record of underlying proceedings, which we reference

only as necessary to explain our decision to affirm.

1.     Legal Standard for Hybrid “§ 301/Fair Representation” Claims

       To pursue this “§ 301/Fair Representation” claim, plaintiffs were required plausibly

to allege both (1) the employer’s breach of a collective bargaining agreement and (2) the

union’s breach of “its duty of fair representation vis-a-vis the union members.” White v.

White Rose Food, Div. of DiGiorgio Corp., 237 F.3d 174,178 (2d Cir. 2001). The latter

breach cannot be supported only by allegations of negligence. See Barr v. United Parcel

Serv., Inc., 868 F.2d 36, 43 (2d Cir. 1989). Rather, plaintiffs must plausibly allege union

actions “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). To be “arbitrary,” the alleged actions, considered “in light of the factual and

legal landscape at the time of the union’s actions,” must fall “so far outside a wide range of

reasonableness as to be irrational.” Vaughn v. Air Line Pilots Ass’n, Int’l, 604 F.3d at

709. To be “discriminatory,” the allegations must plausibly allege disparate treatment

“that was intentional, severe, and unrelated to legitimate union objectives.” Id. (internal

quotation marks omitted). Finally, “bad faith” requires allegations that the union engaged

in “fraud, dishonesty, [or] other intentionally misleading conduct” with “an improper


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intent, purpose or motive.” Id. at 709–10 (internal quotation marks omitted). Our review

of a claimed breach of the duty of fair representation is “highly deferential, recognizing the

wide latitude that [unions] need for the effective performance of their bargaining

responsibilities.” Air Line Pilots Ass’n v. O’Neill, 499 U.S. 65, 78 (1991); accord

Vaughn v. Air Line Pilots Ass’n, Int’l, 604 F.3d at 709. Thus, to plead breach, plaintiffs

must further plausibly allege a “causal connection between the union’s wrongful conduct

and their injuries.” Spellacy v. Airline Pilots Ass’n-Int’l, 156 F.3d at 126; accord Vaughn

v. Air Line Pilots Ass’n, Int’l, 604 F.3d at 709.

2.     Application

       On independent review of the record and relevant case law, we conclude that

plaintiffs failed to plead a plausible claim of union breach essentially for the reasons stated

by the district court in its thorough and well-reasoned Memorandum Opinion and Order

granting dismissal of the hybrid action. On appeal, plaintiffs argue that the district court

failed to consider the context and history of the parties’ relationship and, therefore, failed

to recognize that the complaint plausibly alleged that the Union had endeavored to retaliate

against them by entering into a concealed agreement (the “Adour Agreement”) benefitting

Union members who are not banquet servers at the expense of banquet servers. The

record does not support this argument.1



1
  Plaintiffs argued below that the Union breached its duty of fair representation by failing
to arbitrate the Hotel’s alleged practice of shifting work to non-banquet servers. Plaintiffs
                                              4
       The complaint alleges nothing more than legal and non-arbitrary Union actions that

plaintiffs conclusorily construe as retaliatory because they do not benefit banquet servers.

Even assuming the Adour Agreement operated to the disadvantage of banquet servers, it

was hardly irrational, dishonest, or unrelated to Union objectives for the Union to enter into

such an agreement, given its benefits for other Union members. See Spellacy v. Airline

Pilots Ass’n-Int’l, 156 F.3d at 129 (“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.”); see also Vaughn v. Air Line Pilots Ass’n, Int’l, 604 F.3d at 712

(stating that “there is no requirement that unions treat their members identically as long as

their actions are related to legitimate union objectives” and “[t]he complete satisfaction of

all who are represented is hardly to be expected” (internal quotation marks omitted)). Nor

does the Union’s failure to disclose the Adour Agreement plausibly state a claim of breach.

Although the Union represents plaintiffs in negotiations and disputes with the Hotel, it was

under no duty to disclose the Adour Agreement in negotiations to settle a prior lawsuit in

which plaintiffs were represented by counsel, not the Union, as the Union was adverse to

plaintiffs. See White v. White Rose Food, Div. of DiGiorgio Corp., 237 F.3d at 179 n.3


concede that the Union has since sought arbitration on this issue and, instead, argue that the
Union cannot be trusted to address their grievances in the arbitration. This new argument
effectively asserts that other alleged breaches of the duty of fair representation preclude
effective arbitration and allow them to maintain a hybrid action in court against both the
Union and the Hotel. Because we conclude that plaintiffs have not plausibly alleged a
breach of the duty of fair representation, the argument is without merit.


                                              5
(stating that duty of fair representation arises from exclusive representational status); see

also Freeman v. Local Union No. 135, 746 F.2d 1316, 1321 (7th Cir. 1984) (“If a union

does not serve as the exclusive agent for the members of the bargaining unit with respect to

a particular matter, there is no corresponding duty of fair representation.”). Moreover, not

alerting plaintiffs to the Adour Agreement when they complained about the Hotel shifting

work to non-banquet servers does not create an inference of bad faith because plaintiffs do

not plausibly allege that the Adour Agreement violated any “unambiguous contractual

entitlement[s],” Spellacy v. Airline Pilots Ass’n-Int’l, 156 F.3d at 129, and plaintiffs do not

allege any “intentionally misleading conduct” with regard to plaintiffs’ rights, id. at 126.

Indeed, plaintiffs have cited no authority holding that the duty of fair representation

requires disclosure of all agreements that may in some way affect certain union members.

Cf. White v. White Rose Food, a Div. of DiGiorgio Corp., 237 F.3d at 183 (“[T]he mere

failure to provide notice and an opportunity to be heard regarding [an agreement], without

more, does not amount to bad faith.”).

       Plaintiffs argue that the timing of the Adour Agreement in relation to plaintiffs’ first

lawsuit allows a plausible inference of collusive Union and Hotel retaliation against them.

We disagree. The six-week delay between plaintiffs’ first suit against the Union and the

Ardour Agreement, by itself, fails to raise a plausible inference of bad faith or conspiracy

to retaliate, leaving nothing but plaintiffs’ conclusory allegations. See Anderson News,

LLC v. Am. Media, Inc., 680 F.3d 162, 182 (2d Cir. 2012) (“Conclusory allegations of


                                              6
‘participation’ in a ‘conspiracy’ have long been held insufficient to state a claim.”).

Moreover, the specific misstatements at issue, see, e.g., J.A. 19–23 (alleging that Union

misrepresented that it sent requests for information to the Hotel); id. at 22–23 (alleging

“[c]ertain previous meeting dates were claimed to have contained facts that belonged to

other meeting dates”), are minor discrepancies that do not indicate intentional

misrepresentation and, when viewed in totality, instead support at most an inference of

negligence, not bad faith or a conspiracy to retaliate. See Vaughn v. Air Line Pilots Ass’n,

Int’l, 604 F.3d at 710; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)

(requiring allegations to “nudge[] . . . claims across the line from conceivable to plausible”

in order to survive motion to dismiss).

       Accordingly, we affirm substantially for the reasons stated by the district court in its

Memorandum Opinion and Order of Dismissal.

       We have considered the remainder of plaintiffs’ claims and consider them to be

without merit. The order of the district court is AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O=HAGAN WOLFE, Clerk of Court




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