13-2786-cv
Greenberg v. Int'l Union

                                   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 8th day of October, two thousand fourteen.

PRESENT:             RALPH K. WINTER,
                     DENNY CHIN,
                                         Circuit Judges,
                     J. PAUL OETKEN,
                                         District Judge.*1
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MARSHALL GREENBERG,
                  Plaintiff-Appellant,

                              v.                                                   13-2786-cv

INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 14-14B,
                     Defendant-Appellee.

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          *
              The Honorable J. Paul Oetken, of the United States District Court for the
Southern District of New York, sitting by designation.
FOR PLAINTIFF-APPELLANT:                   JOHN J.P. HOWLEY, Law Offices of John
                                           Howley, New York, New York.

FOR DEFENDANT-APPELLEE:                    JAMES M. STEINBERG (Joseph H. Green, on
                                           the brief), Brady McGuire & Steinberg, P.C.,
                                           Tarrytown, New York.

              Appeal from the United States District Court for the Eastern District of

New York (Weinstein, J.).

              UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

              Plaintiff-appellant Marshall Greenberg appeals from a judgment entered

June 13, 2013 in the United States District Court for the Eastern District of New York

dismissing his claims against defendant-appellee International Union of Operating

Engineers Local 14-14B (the "Union"). By written decision filed June 13, 2013, the

district court granted the Union's motion for summary judgment as a matter of law,

rejecting plaintiff's allegations that the Union breached its duty of fair representation.

On appeal, Greenberg argues that the district court improperly resolved genuine issues

of material fact against him when it granted defendant's motion for summary judgment.

We assume the parties' familiarity with the facts, procedural history, and issues on

appeal, which we reference only as necessary to explain our decision.

              "We review a district court's grant of summary judgment de novo and "we

will affirm the judgment only if there is no genuine issue as to any material fact, and if

the moving party is entitled to a judgment as a matter of law." Allianz Ins. Co. v. Lerner,
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, 113 (2d Cir. 2005). "In determining whether there are genuine issues of

material fact, we are 'required to resolve all ambiguities and draw all permissible

factual inferences in favor of the party against whom summary judgment is sought.'"

Terry v. Ashcroft, 

, 137 (2d Cir. 2003) (quoting Stern v. Trs. of Columbia Univ.,

, 312 (2d Cir. 1997)).

               To prevail on a "duty of fair representation claim, [a plaintiff] must

demonstrate both (1) that [the employer] breached its collective bargaining agreement

and (2) that [the union] breached its duty of fair representation." Sanozky v. Int'l Ass'n of

Machinists & Aerospace Workers, 

, 282 (2d Cir. 2005). A "union breaches the

duty of fair representation when its conduct toward a member of the bargaining unit is

arbitrary, discriminatory, or in bad faith." Marquez v. Screen Actors Guild, Inc., 

, 44 (1998) (citing Vaca v. Sipes, 

, 190 (1967)). However, "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, 

, 67 (1991) (citation

omitted).

               Here, the district court properly determined that Greenberg failed to

establish triable issues of fact with respect to his claim that the Union breached its duty

of fair representation. Greenberg "acknowledges that his only claim against the Union

arises from its failure to take any action on his behalf when he sought to be reinstated to


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the site in May 2009, when he was taken off administrative leave." J. App. at 190.

Greenberg had been working for Bovis Lend Lease LMB, Inc. ("Bovis") as a hoist

operator at the south side shaft at the Deutsche Bank building when he was placed on

administrative leave. In May 2009, Bovis stopped paying him administrative leave

when the south side hoist was taken out of operation. As the district court noted, it was

"undisputed that by May 2009 his former position as hoist operator for the southside

shaft was no longer available since the shaft had been taken down." J. App. at 1278.

Moreover, Article IX, section 1 of the Union's bylaws provided that a member had a

claim to a job "[o]n building work and steel jobs, . . . on the tower, shaft, derrick or crane

where the engineer had been hoisting." Art. IX, § 1(d), Union Bylaws (emphasis added).

Thus, the Union "could not advocate for plaintiff's job reinstatement because the job for

which he had a claim under the [U]nion by-laws no longer existed." J. App. at 1278.

The district court found "no evidentiary basis to infer that the [U]nion's decision was

arbitrary or in bad faith, or that its rationale was a pretext for retaliation." 

alleges that the Union agreed that he would be

hired to work on the north side shaft and that he would remain employed so long as

that shaft was operational. He also contends that the Union promised him that he

would be the second to last engineer removed from the site. Even if these allegations

are accepted as true, they do not present a genuine issue for trial with respect to the

claims before the Court. According to Greenberg, the Union made these assurances, not


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Bovis. Importantly, the duty of fair representation arises when the union, employee

and employer are involved. See Price v. Int'l Union, United Auto., Aerospace & Agr.

Implement Workers of Am., 

, 90 (2d Cir. 1991) (finding that union's duty of fair

representation was not implicated in employee-union dispute). Thus, a matter that only

involves "the relationship between the union and its members and does not also involve

the employer is viewed as an internal union matter that does not give rise to a duty of

fair representation." Ass'n of Contracting Plumbers v. Local Union No. 2, 

, 469

(2d Cir. 1988) (internal quotation marks omitted). In addition, as the district court

noted, Greenberg did not exhaust his internal union remedies, as required by the

Union's bylaws and constitution.

              We have considered Greenberg's remaining arguments and conclude they

are without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

                                          FOR THE COURT:
                                          Catherine O'Hagan Wolfe, Clerk




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