WARD v. LONG ISLAND RAIL ROAD COMPANY

March 31, 2017

2017 WL 1234019

United States District Court, S.D. New York.

Kendell WARD, James Reshard, John Coutard, Mark Rodriguez, Gerard Schaefer, Joseph Zaino, Letitia Saint-Louis, Paul Siciliano, and Michael Daugherty, Plaintiffs, v. LONG ISLAND RAIL ROAD COMPANY and Transportation Communications Union, Defendants.

No. 14-CV-8263 (RA) Signed 03/31/2017

Attorneys and Law Firms

Arthur Z. Schwartz, Laine Alida Armstrong, Advocates for Justice, Chartered Attorneys, New York, NY, for Plaintiffs. Brian Kenneth Saltz, Long Island Railroad Company, Jamaica, NY, Jeffrey A. Bartos, Guerrieri, Edmond & Clayman, P.C., Washington, DC, for Defendants.

OPINION & ORDER RONNIE ABRAMS, United States District Judge: Plaintiffs Kendell Ward, James Reshard, John Coutard, Mark Rodriguez, Gerard Schaefer, Joseph Zaino, Letitia Saint-Louis, Paul Siciliano, and Michael Daugherty are current and former Assistant Stationmasters (“ASMs”) of the Long Island Rail Road Company (“LIRR”). Plaintiffs bring claims against the LIRR and the Transportation Communications Union (“TCU”), alleging violations of the Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq. Defendants have moved for summary judgment. For the reasons that follow, their motions are granted. BACKGROUND1 The TCU is a labor organization that represents more than 1,200 employees at the LIRR. Pls.' Resp. TCU 56.1 ¶ 1. These employees work in the “Clerical, Office, Station and Storehouse” craft and belong to a single seniority roster. Id. The TCU and the LIRR are parties to four separate collective bargaining agreements, including one general Clerical Agreement. Id. Over the years, the TCU and the LIRR have agreed to various “exceptions” to the general terms of the Clerical Agreement, one of which is called Exception 5. Id. ¶ 3. Exception 5 includes a variety of positions that are either supervisory in nature or require higher qualifications than other TCU-represented positions. See id. ¶ 2; Pls.' Resp. LIRR 56.1 ¶ 2. The Clerical Agreement provides that Exception 5 employees “shall be covered by a supplemental agreement which shall include all of the rules of [the Clerical Agreement] applicable to such employees, and any new rules applicable only to such employees (under separate contract book).” DeCarlo Decl. Ex. A at 4. This supplemental agreement is known as the Exception 5 Agreement. Pls.' Resp. TCU 56.1 ¶ 3; see also Pls.' Counterstatement Ex. A (“Exception 5 Agreement”). ASMs are part of the LIRR's Transportation Services Department. Pls.' Resp. LIRR 56.1 ¶ 4. They are Exception 5 employees. See id. ¶ 3; Pls.' Resp. TCU 56.1 ¶ 3. As Exception 5 employees subject to both the Clerical Agreement and the Exception 5 Agreement, they have seniority dates on both the Clerical roster and the Exception 5 roster. Pls.' Resp. TCU 56.1 ¶ 7. These rosters are available to employees through the LIRR's internal website. Id. ¶ 13. For many years, the LIRR has published a single Exception 5 roster that lists the seniority dates of all Exception 5 employees, including ASMs, regardless of their job title. Id. *2 The dispute in this case is about how ASM job assignments and vacations are chosen. Before 2011, assignments and scheduling were the responsibility of the LIRR General Stationmaster. See, e.g., Pls.' Counterstatement Ex. C (“Reshard Dep.”) at 14:24-15:4; id. Ex. D (“Ward Dep.”) at 11:11-16; Bartos Decl. Ex. A (“Daugherty Dep.”) at 17:3-17; Brooks Decl. ¶ 4. When jobs became available, the General Stationmaster “would ask who was interested ... and then assign[ ] them.” Daugherty Dep. at 17:13-14. Although the General Stationmaster considered seniority, this was only done as a “professional courtesy.” DeCarlo Decl. Ex. I (“GSM Mem.”). A General Stationmaster noted during this period that “ASMs do not have seniority, hours of service or many other work rules that are afforded to other crafts.” Id.; see also Pls.' Resp. TCU 56.1 ¶ 16. Despite the observance of “self-imposed checks and balances,” the General Stationmaster “reserve[d] the right to fill jobs based on the needs of the department.” GSM Mem.2 This arrangement began to change in 2010. See Pls.' Resp. TCU 56.1 ¶ 15. After some ASMs complained to the LIRR Inspector General and the TCU about favoritism in the assignment process, the LIRR and the TCU agreed to transfer responsibility for ASM assignments from the General Stationmaster to the LIRR's Crew Management Office. Id. Under the new assignment system, the ASMs determined their own schedules and vacations based on seniority. Id. The General Stationmaster and some of the ASMs, including several of the Plaintiffs in this action, resisted the new system, but the LIRR and the TCU nevertheless decided to implement it. See id. ¶¶ 16-17; GSM Mem.; Bartos Decl. Ex. K. On May 6, 2011, the LIRR issued a memorandum to all ASMs confirming that “crew dispatching related responsibilities” would be transferred “from the General Stationmaster to the Jamaica Crew Dispatching Office.” DeCarlo Decl. Ex. J. Furthermore, “[f]or the first time ever,” the LIRR would “provid[e] all [ASMs] the opportunity to choose what assignment they would prefer to work and then on an annual basis ... allow everyone to submit a new ... assignment preference.” Id. The implementation of the new assignment system proceeded in stages. Initially, ASMs with previously assigned positions maintained them subject to reassignment by the General Stationmaster, while ASMs who were on an “extra list” received short-term assignments through the Crew Management Office. Id. ¶ 23. Eventually, however, the LIRR instituted a semi-annual job selection process (the “General Pick”) and an annual vacation selection process (the “Vacation Pick”) that were run by Crew Management. Id. ¶ 24. For each pick, every fully-qualified ASM was assigned a specific time to call Crew Management and select a shift and location or vacation schedule. Id. The LIRR issued written guidance to the ASMs explaining that the picks would be conducted “based on seniority.” Id. Ex. K. In other words, “ASMs who [were] higher up on the seniority roster [would] receive priority over ASMs who [were] lower on the roster.” Id. *3 The first General Pick occurred in March 2013. Sixteen ASMs participated, and the seniority dates used to determine the order of the pick matched the seniority dates listed on the Exception 5 roster that the LIRR had published on January 16, 2013. See id. Ex. F (“2013 Exception 5 Roster”); id. Ex. L (“March 2013 General Pick List”).3 A second General Pick took place in October 2013. Twenty-one ASMs participated, and this time, there was one notable discrepancy between the seniority dates used for the pick and those listed on the Exception 5 roster: Plaintiff Mark Rodriguez, a new ASM, picked according to his ASM start date of January 9, 2013 despite having an Exception 5 seniority date of April 13, 2011. 2013 Exception 5 Roster; DeCarlo Decl. Ex. N (“October 2013 General Pick List”); Pls.' Resp. TCU 56.1 ¶ 21.4 Similarly, the seniority date of Charles Quinn, an ASM trainee, was listed on the pick list as February 13, 2013 despite the fact that Quinn had an Exception 5 seniority date of May 2, 2007. 2013 Exception 5 Roster; October 2013 General Pick List; Pls.' Resp. TCU 56.1 ¶ 21.5 As a trainee, Quinn did not participate in the pick. October 2013 General Pick List; Pls.' Resp. TCU 56.1 ¶ 21. These discrepancies matured into the controversy underlying this lawsuit. Later in 2013, the LIRR conducted a Vacation Pick for the ASMs. Pls.' Resp. TCU 56.1 ¶ 22. Both Rodriguez and Quinn picked based on their ASM start dates. See id. After the Vacation Pick, however, Quinn contacted TCU Local Chairman James Figueroa to complain about the fact that his Exception 5 seniority date was not being observed. Id. Figueroa referred the matter to TCU National Representative William DeCarlo, who reviewed the Exception 5 Agreement and concluded that Quinn was correct; his Exception 5 seniority date should have governed. Id. DeCarlo, who had been personally involved in the negotiations with the LIRR regarding the new assignment system, based his conclusion on Rule 7 of the Exception 5 Agreement, which states that “[t]he [LIRR] shall constitute a single seniority district.” Id. ¶¶ 22-23; DeCarlo Decl. ¶ 30; Pls.' Counterstatement Ex. B (“DeCarlo Dep.”) at 25:20–22. DeCarlo conferred with the TCU's National Vice President, Arthur Maratea, and the LIRR's Director of Labor Relations, Monu Singh, about the issue. DeCarlo Decl. ¶ 30; DeCarlo Dep. at 28:8–13; Pls.' Counterstatement Ex. G (“Singh Dep.”) at 23:3-17.6 Both agreed with DeCarlo. DeCarlo Decl. ¶ 30; DeCarlo Dep. at 28:20-21; Singh Dep. at 24:5-13. The LIRR thus invited Quinn and Rodriguez to select a new vacation schedule, although only Quinn did so. DeCarlo Decl. ¶ 30. Since this time, Exception 5 seniority dates have been used for all General and Vacation Picks. Pls.' Resp. TCU 56.1 ¶ 25. Another General Pick was conducted in April 2014 in accordance with the seniority dates set forth in the March 5, 2014 Exception 5 seniority roster. DeCarlo Decl. Ex. G (“2014 Exception 5 Roster”); id. Ex. T (“April 2014 General Pick List”).7 On July 11, 2014, Reshard sent a letter to Maratea on behalf of himself and other ASMs complaining about the TCU's failure to adhere to an “Assistant Stationmaster seniority roster.” Id.Ex. P (“Reshard Letter”) at TCU 53.8 Reshard argued that seniority for purposes of the General and Vacation Picks should be determined not based on the ASMs' “TCU start date,” but rather on “their hire date within our department.” Id. According to Reshard, the TCU had previously recognized the existence of a separate ASM roster for purposes of job picks, and had, in fact, done so as recently as October 2013. Id. Reshard argued that the TCU's reading of the Exception 5 Agreement was “questionable,” and urged the TCU to return to what he claimed were its “past practices.” Id. Ward sent a very similar email to DeCarlo and Maratea the next day. Id. Ex. O. (“TCU-ASM Email Correspondence”) at TCU 58. *4 DeCarlo responded to Ward's email on July 15, 2014, copying Figueroa. Id. at TCU 57-58. He explained that the request for a “separate [ASM] seniority roster ... [was] in direct conflict with Rule 7 of the [Exception 5 Agreement].” Id. at TCU 57. DeCarlo noted that “[t]he TCU until recently [had been] unaware of any violation of the Agreement” and had become obligated to rectify the violation once it learned of it. Id. In support of his contention that Exception 5 seniority should control the General and Vacation Picks, DeCarlo also cited to Rule 9 of the Exception 5 Agreement, which provides in relevant part that “[s]eniority of an employee entering service in a position on or after the effective date of [the Exception 5 Agreement] shall date from the day and hour his/her pay starts in such position.” See id. On August 4, 2014, Maratea responded to Reshard's letter, indicating that DeCarlo had “already addressed” the issue. Id. Ex. Q. He encouraged Reshard to contact Figueroa if he wished to file an official claim. Id. Reshard apparently did contact Figueroa, because on August 11, 2014, Figueroa forwarded to Reshard DeCarlo's July 15 email, noting that he had received a letter from Reshard. TCU-ASM Email Correspondence at TCU 56. Figueroa told Reshard that Maratea and DeCarlo had “thoroughly investigated and reviewed this issue and [had come] to the same conclusion,” noting that it was the TCU's obligation to uphold the Exception 5 Agreement. Id. at TCU 56-57. On August 18, 2014, Reshard thanked Figueroa for his response and acknowledged that Maratea and DeCarlo had “reviewed the issue and come to a conclusion.” Id. at TCU 56. Plaintiffs did not pursue arbitration following this correspondence. See Reshard Dep. at 46:2-8; Pls.' Counterstatement ¶ 38. Instead, on October 15, 2014, they filed this lawsuit. STANDARD OF REVIEW To prevail on a motion for summary judgment, the movant must show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “An issue of fact is genuine and material if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Cross Commerce Media, Inc. v. Collective, Inc., 841 F.3d 155, 162 (2d Cir. 2016). “The movant bears the burden of demonstrating the absence of a question of material fact.” Chaparro v. Kowalchyn, No. 15-CV-1996 (PAE), 2017 WL 666113, at *3 (S.D.N.Y. Feb. 17, 2017). “When a motion for summary judgment is properly supported by documents or other evidentiary materials, the party opposing summary judgment may not merely rest on the allegations or denials of his pleading; rather his response, by affidavits or otherwise as provided in [Rule 56], must set forth ‘specific facts' demonstrating that there is ‘a genuine issue for trial.’ ” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (quoting Fed. R. Civ. P. 56(e)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining whether to grant summary judgment, the Court must “constru[e] the evidence in the light most favorable to the non-moving party and draw[ ] all reasonable inferences in its favor.” Mitchell v. City of New York, 841 F.3d 72, 77 (2d Cir. 2016) (quotation marks omitted). DISCUSSION “[T]he RLA provides an arbitral mechanism for ‘the prompt and orderly settlement’ ” of disputes between carriers like the LIRR and their employees. Lindsay v. Ass'n of Prof'l Flight Attendants, 581 F.3d 47, 51 (2d Cir. 2009) (quoting Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994)). Such disputes belong to one of two types: “major” and “minor.” Major disputes relate to “the formation of collective [bargaining] agreements or efforts to secure them.” Consol. Rail Corp. v. Ry. Labor Execs.' Ass'n, 491 U.S. 299, 302 (1989) (quoting Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723 (1945)). Minor disputes “grow[ ] out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions.” Id. at 303 (quotation marks omitted); see also 45 U.S.C. §§ 152 (Sixth), 153 (First) (i). “In other words, ‘major disputes seek to create contractual rights, minor disputes to enforce them.’ ” Lindsay, 581 F.3d at 51 (quoting Norris, 512 U.S. at 253). *5 The case at bar involves a minor dispute because it concerns the interpretation of the Exception 5 Agreement. The parties disagree about how seniority should be determined under the Agreement for purposes of the General and Vacation Picks. Ordinarily, minor disputes like this one must be arbitrated, and district courts do not have jurisdiction to adjudicate them. See Consol. Rail, 491 U.S. at 303-04. There is, however, an exception to this rule. “Under the RLA, a plaintiff can assert a ‘hybrid’ claim against both his union for breaching its duty of fair representation and his employer for breaching its duties under the collective-bargaining agreement.” Musto v. Transp. Workers Union of Am., 818 F. Supp. 2d 621, 632 (E.D.N.Y. 2011) (citing West v. Conrail, 481 U.S. 35, 36 (1987)). That is what Plaintiffs have done here. “To establish a hybrid ... claim, a plaintiff must prove both (1) that the employer breached a collective bargaining agreement and (2) that the union breached its duty of fair representation vis-a-vis the union members.” White v. White Rose Food, 237 F.3d 174, 178 (2d Cir. 2001). A failure to establish a breach of the duty of fair representation will doom a plaintiff's claims against both the union and the employer. See id. at 179; Musto,818 F. Supp. 2d at 632. A breach of the duty of fair representation has two elements: (1) “that the union's actions or inactions are either arbitrary, discriminatory, or in bad faith” and (2) “a causal connection between the union's wrongful conduct and [the plaintiff's] injuries.” Vaughn v. Air Line Pilots Ass'n, Int'l, 604 F.3d 703, 709 (2d Cir. 2010) (quotation marks omitted). These elements are not easily satisfied. “Any substantive examination of a union's performance ... must be highly deferential....” Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 78 (1991). With respect to the first element, “[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.’ ” Vaughn, 604 F.3d at 709 (quoting O'Neill, 499 U.S. at 67). “This ‘wide range of reasonableness' gives the union room to make discretionary decisions and choices, even if those judgments are ultimately wrong.” Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 45–6 (1998). “A union's acts are discriminatory when ‘substantial evidence’ indicates that it engaged in discrimination that was ‘intentional, severe, and unrelated to legitimate union objectives.’ ” Vaughn, 604 F.3d at 709(quoting Amalgamated Ass'n of St., Elec. Ry. & Motor Coach Emps. of Am. v. Lockridge, 403 U.S. 274, 301 (1971)). A determination that a union acted in “bad faith requires a showing of fraudulent, deceitful, or dishonest action.” White, 237 F.3d at 179 (quotation marks omitted). Based on the record in this case, no reasonable juror could conclude that the TCU's conduct was arbitrary, discriminatory, or in bad faith. Plaintiffs' claim is based on allegations that the TCU (1) failed to diligently consider their grievance, (2) interpreted the Exception 5 Agreement unreasonably, and (3) was motivated by impermissible favoritism. The Court is unpersuaded. Although “a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion,” it is well-settled that “the individual employee [does not have] an absolute right to have his grievance taken to arbitration.” Vaca v. Sipes, 386 U.S. 171, 191 (1967). Where, “after a good faith investigation of the merits of the grievance, [a union] concludes that the claim is unsubstantial, and refuses to encumber further its grievance channels by continuing to process a[ ] nonmeritorious claim, its duty of fair representation is satisfied and no claim against it may be brought.” Taylor v. MCI, Int'l, 215 F. Supp. 2d 347, 350 (S.D.N.Y. 2002). The record here does not support a finding of anything but a good-faith investigation. The seniority issue was initially raised to the TCU in late 2013 shortly after the Vacation Pick. See Pls.' Resp. TCU 56.1 ¶ 22. Quinn, a new ASM with pre-existing Exception 5 seniority, contacted Figueroa to complain about the fact that his Exception 5 seniority date was not used during the pick. Id. The issue was referred to DeCarlo, who reviewed the Exception 5 Agreement, and conferred with Maratea and Singh. Id. ¶¶ 22-23; DeCarlo Decl. ¶ 30; DeCarlo Dep. at 28:8-13; Singh Dep. at 23:3-17. All agreed that the language of Rule 7 governed the issue and that Exception 5 seniority dates should be used for the General and Vacation Picks. See DeCarlo Decl. ¶ 30; DeCarlo Dep. at 28:20-21; Singh Dep. at 24:5-13. Consequently, by the time a written complaint was submitted to the TCU, a reasoned decision had already been reached. As Reshard himself acknowledged in an August 2014 e-mail to Figueroa, both DeCarlo and Maratea had “reviewed the issue and come to a conclusion.” TCU-ASM Email Correspondence at TCU 56. Plaintiffs simply disagreed with the conclusion. *6 It is true, as Plaintiffs point out, that DeCarlo did not discuss past practices with the ASMs as part of his analysis. See DeCarlo Dep. at 26:6-8. However, it was reasonable for DeCarlo to conclude that the seniority question was answered by the plain language of the Exception 5 Agreement. “To uphold the union's action in interpreting the contract as it did it is not necessary that [the Court] find on the merits that such an interpretation was correct.” Spellacy v. Airline Pilots Ass'n-Int'l, 156 F.3d 120, 127 (2d Cir. 1998) (quotation marks omitted). The relevant inquiry is “whether the union took a position on the basis of an informed, reasoned judgment ... in light of the language contained in the collective bargaining agreement.” Id. The Court finds that the TCU did so here. The parties direct the Court to several provisions of the Exception 5 Agreement that address the issue of seniority. The first of these is Rule 7, which provides that “[t]he [LIRR] shall constitute a single seniority district.” Rule 8(a) provides that “[a] roster showing seniority dates of employees” must be revised and posted each January. Rules 8(f) and 9 address the determination of seniority dates. Rule 8(f) provides that “[s]eniority of employees holding positions under [the Exception 5 Agreement] on June 1, 1985, [the effective date of the Exception 5 Agreement] shall date from the earliest date upon which they last entered continuous service in the group.” Under Rule 9, “[s]eniority of an employee entering service in a position on or after the effective date of [the Exception 5 Agreement] shall date from the day and hour his/her pay starts in such position.” Plaintiffs argue that Rule 9 creates what they refer to as “position seniority.” Under Rule 9, they contend, ASM seniority should be based on ASM hire date. This reading arguably conflicts with the language of Rules 7 and 8. “When courts interpret CBAs, traditional rules of contract interpretation apply as long as they are consistent with federal labor policies.” Aeronautical Indus. Dist. Lodge 91 of Int'l Ass'n of Machinists & Aerospace Workers v. United Techs. Corp., 230 F.3d 569, 576 (2d Cir. 2000). One such rule is that “courts should attempt to read CBAs in such a way that no language is rendered superfluous.” Id. Rule 8(a) contemplates the existence of a single seniority roster. See Exception 5 Agreement Rule 8(a) (referring to “[a] roster”). Rule 7 describes the LIRR as a “single seniority district.” The reading of Rule 9 that Plaintiffs propose would seem to require multiple seniority rosters within Exception 5, and would arguably create multiple seniority districts as well. Plaintiffs acknowledge that each Exception 5 employee has an Exception 5 seniority date that is determined by the employee's “first day of work in a position covered by [the Exception 5 Agreement].” Pls.' Resp. TCU 56.1 ¶ 9. What Plaintiffs appear to advocate, then, is that the General and Vacation Picks should be conducted according to a separate seniority roster that is based on each ASM's first day of work as an ASM, rather than their first day of work in an Exception 5 position. Indeed, this is precisely what Reshard and Ward argued to the TCU in 2014. See Reshard Letter at TCU 53 (complaining about the TCU's failure to recognize “the Assistant Stationmaster seniority roster”); TCU-ASM Email Correspondence at TCU 58 (same). Although Plaintiffs contend that this is required by the language of Rule 9, Defendants' interpretation of the seniority provisions is at least as plausible, and avoids the conflict between the provisions that is inherent in Plaintiffs' reading. In Defendants' view, the only seniority created by the Exception 5 Agreement is Exception 5 seniority. Under this interpretation, there need only be one seniority roster, which is consistent with the language of Rule 8(a). *7 Rules 8(f) and 9, which describe how employees' seniority dates are determined, can be read in conjunction with one another. Rule 8(f) refers to “employees holding positions under [the Exception 5 Agreement]” as of the effective date of the Agreement, and provides that their seniority date is “the earliest date upon which they last entered continuous service in the group.” Rule 9 refers to “employee[s] entering service in a position on or after the effective date,” and provides that their seniority date is “the day and hour his/her pay starts in such position.” The term “position” in Rule 9 can be reasonably read as referring back to the “positions under [the Exception 5 Agreement]” language in Rule 8(f). Cf. Deal v. United States,508 U.S. 129, 132 (1993) (“[T]he meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used.”); Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307 (1961) (“The maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings....”); 11 Williston on Contracts § 32:6 (4th ed.) (“Generally, a word used by the parties in one sense will be given the same meaning throughout the contract in the absence of countervailing reasons.”). When viewed in this light, Rule 9 does not create a position seniority that is separate from Exception 5 seniority; it simply provides that the seniority date of any employee that “enter[s] service” in a position covered by the Exception 5 Agreement is the “the day and hour his/her pay starts in such position.” This reading is also consistent with past practices. See Spellacy, 156 F.3d at 128 (considering past practices in determining whether a union's interpretation of a seniority provision was reasonable).9 For years before Quinn's complaint, the LIRR published a single Exception 5 roster that listed the seniority dates of all Exception 5 employees regardless of their job title. Pls.' Resp. TCU 56.1 ¶ 13. Whenever employees subject to the Exception 5 Agreement moved from one Exception 5 position to another, they retained their Exception 5 seniority dates. Id. ¶ 11. Under Plaintiffs' reading of Rule 9, they would not have done so. In any event, the Court need not adopt one interpretation of the Exception 5 Agreement over another. As explained above, in considering whether the TCU breached its duty of fair representation, the Court's “inquiry is limited to whether the union took a position on the basis of an informed, reasoned judgment ... in light of the language contained in the collective bargaining agreement.” Spellacy, 156 F.3d at 127. No reasonable juror could conclude that the TCU's handling of the seniority issue was motivated by impermissible favoritism. The only evidence that Plaintiffs cite in support of this assertion is (1) that Quinn is the nephew of a former official of a union representing locomotive engineers at the LIRR and (2) that DeCarlo had known Quinn professionally for over ten years and was aware of the relationship between Quinn and his uncle. SeePls.' Counterstatement ¶¶ 17, 20 (citing Ward Dep. at 38:16-23; DeCarlo Dep. at 22:22-24). This evidence does not even suggest that DeCarlo was friendly with Quinn or his uncle, let alone that he would base policy on their wishes. See DeCarlo Dep. at 22:12-13, 23:24-24:3 (explaining that he knew Quinn “[t]hrough his employment” and was acquainted with Quinn's uncle through “business, slash, social events”). *8 Where, as here, a union's actions are based on a reasonable reading of the applicable agreement and no plausible evidence of bad faith or discrimination has been proffered, there is no breach of the duty of fair representation. See Vaughn, 604 F.3d at 712 (“[T]here is no requirement that unions treat their members identically as long as their actions are related to legitimate union objectives.”); Spellacy, 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.”). As a breach of the duty of fair representation is required in a hybrid action, Plaintiffs' claim against the LIRR also fails. White, 237 F.3d at 179; Musto, 818 F. Supp. 2d at 632. CONCLUSION Defendants' motions for summary judgment are granted. The Clerk of Court is respectfully directed to terminate items 47 and 51 on the docket and close this case. SO ORDERED.

All Citations Slip Copy, 2017 WL 1234019, 2017 L.R.R.M. (BNA) 107,998

Footnotes 1 The following facts are not in genuine dispute. They are largely drawn from the Local Civil Rule 56.1 statements of the LIRR and the TCU, with which Plaintiffs, for the most part, agree. In the instances where Plaintiffs contest the facts below, they have failed to cite to admissible evidence in their opposition papers that supports their position. Unsupported denials are not sufficient to create a genuine dispute of fact. See Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 292 (2d Cir. 2000); Cooper v. Gottlieb, No. 95-CV-10543 (JGK), 2000 WL 1277593, at *4 (S.D.N.Y. Sept. 8, 2000), aff'd, 12 Fed.Appx. 28 (2d Cir. 2001) (summary order). 2 Plaintiffs contend that this process was used only for temporary assignments and that ASMs have chosen their own assignments through annual picks since at least 1996. Pls.' Resp. TCU 56.1 ¶¶ 14, 17–18, 20; Pls.' Resp. LIRR 56.1 ¶¶ 15-17; Pls.' Counterstatement ¶ 13. In support of this contention, Plaintiffs cite to the depositions of Plaintiffs James Reshard and Kendell Ward. See Pls.' Counterstatement ¶ 13. However, the cited passages do not contradict the proposition that the General Stationmaster was responsible for making assignments prior to 2011; they simply address the manner in which seniority was determined during that time. See Reshard Dep. at 34:13–16; Ward Dep. at 30:10–14. In other portions of their depositions, Reshard and Ward unequivocally state that the General Stationmaster was responsible for handling assignments. See Reshard Dep. at 14:24-15:4; Ward Dep. at 11:11–16. 3 There was a minor discrepancy between the two seniority dates for one of the ASMs, “J. Walsh.” Walsh's seniority date on the Exception 5 roster was July 2, 2008. 2013 Exception 5 Roster. His seniority date on the General Pick list was July 12, 2008. March 2013 General Pick List. The discrepancy between the two dates had no effect on the order of the pick. See id. 4 The ten-day discrepancy between Walsh's Exception 5 seniority date and his seniority date on the pick list was also present in October 2013. See 2013 Exception 5 Roster; October 2013 General Pick List. As before, that discrepancy did not affect the order of the pick. See October 2013 General Pick List. 5 Quinn's uncle formerly served as a union representative of the Brotherhood of Locomotive Engineers at the LIRR. DeCarlo Decl. ¶ 35. 6 Singh is an attorney. Singh Dep. at 4:25-5:2. 7 The Walsh discrepancy persisted, but again did not affect the order of the pick. See 2014 Exception 5 Roster; April 2014 General Pick List. 8 The letter referred to earlier correspondence sent to the LIRR and DeCarlo in May 2014. See Reshard Letter at TCU 53. That correspondence does not appear to have been provided to the Court. 9 Plaintiffs' assertion that the TCU and the LIRR previously recognized position seniority in connection with ASM assignments does not convince the Court otherwise. First, the evidence in support of this assertion is scant. Although several ASMs testified about this supposed past practice, see, e.g., Ward Dep. at 30:10–14, Plaintiffs have only identified one example prior to 2013 where position seniority was used instead of Exception 5 seniority, and the testimony cited with regard to that example appears to be hearsay, seeReshard Dep. at 34:10-36:9, 41:23-42:1. Second, prior to 2011, job assignments and scheduling were handled informally by the LIRR General Stationmaster. GSM Mem.; see also Reshard Dep. at 14:24-15:4; Ward Dep. at 11:11-16; Daugherty Dep. at 17:3-17; Brooks Decl. ¶ 4. To the extent seniority was observed, it was only done as a “professional courtesy.” GSM Mem. Thus, even if Plaintiffs are correct that position seniority was recognized prior to 2011, it is far from clear that anyone regarded that recognition as being related to an interpretation of the Exception 5 Agreement.