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
`9 day of June, two thousand fifteen.
`th
`
`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.
`
`
`
`1
`
` 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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