Respondents Brief — William Scales, Petitioner v. Hotel Trades Council of New York Local 6

No. 25-5701

In the

Supreme Court of the United States

WILLIAM SCALES,

Petitioner,

v.

HOTEL TRADES COUNCIL OF NEW YORK LOCAL 6,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of A ppeals for the Second Circuit

BRIEF IN OPPOSITION

Jane L auer Barker

Counsel of Record

Pitta LLP

120 Broadway, 28th Floor

New York, NY 10271

(212) 652-3890

jbarker@pittalaw.com

Counsel for Respondent

386865

A

(800) 274-3321 • (800) 359-6859

CORPORATE DISCLOSURE STATEMENT

Respondent Hotel and Gaming Trades Council, AFL-CIO has no

parent corporation, and no publicly held company owns 10% or more of

its stock.

TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT............................................. i

TABLE OF AUTHORITIES ......................................................................iii

INTRODUCTION ....................................................................................... 1

STATEMENT.............................................................................................. 1

MISSTATEMENTS OF FACT OR LAW ................................................... 7

ARGUMENT ............................................................................................... 7

I.

THE PETITION FAILS RULE 15.3 ............................................ 7

II.

NO COMPELLING REASONS EXIST TO REVIEW THE

COURT OF APPEALS’ DECISION ............................................. 8

A.

B.

III.

The Appeals Court Correctly Affirmed the District

Court’s Determination that Scales Failed to State a

Claim Upon Which Relief May be Granted ......................... 9

1.

No DFR Breach ........................................................... 10

2.

No Contract or Conversion Claims ............................ 12

The Second Circuit Properly Determined that the

District Court Did Not Abuse Its Discretion in

Declining to Appoint Pro Bono Counsel ............................ 14

SCALES’ EXTRA QUESTIONS PRESENTED ARE

UNINTELLIGIBLE, RAISED FOR THE FIRST TIME IN

THIS PETITION, AND/OR ARE DUPLICATIVE OF THE

DFR QUESTION ........................................................................ 15

CONCLUSION ......................................................................................... 19

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Air Line Pilots Ass’n, Int’l. v. O’Neill,

499 U.S. 65 (1991) ................................................................................ 11

DelCostello v. International Brotherhood of Teamsters,

462 U.S. 151 (1983) .............................................................................. 10

Edem v. Grandbelle Int’l., Inc.,

118 A.D.3d 848, 988 N.Y.S.2d 244 (2d Dep’t 2014) ............................ 13

Harris v. Quinn,

573 U.S. 616 (2014) .............................................................................. 16

Hodge v. Police Officers,

802 F.2d 58 (2d Cir. 1986) ............................................................... 6, 15

In re Bank of Am. Corp. Sec., Derivative,

& Emp. Ret. Income Sec. Act Litig.,

772 F.3d 125 (2d Cir. 2014) ............................................................ 14-15

Manhattan Cmty. Access Corp. v. Halleck,

587 U.S. 802 (2019) .............................................................................. 16

Marquez v. Screen Actors Guild, Inc.,

525 U.S. 33 (1998) ................................................................................ 10

Rynasko v. New York Univ.,

63 F.4th 186 (2d Cir. 2023) .................................................................. 13

United Steelworkers of Am., AFL-CIO-CLC v. Rawson,

495 U.S. 362 (1990) ................................................................ 5, 6, 12, 13

Vaughn v. Air Line Pilots Ass’n, Int’l,

604 F.3d 703 (2d Cir. 2010) ......................................................... 4, 5, 11

White v. White Rose Food, a Div. of DiGiorgio Corp.,

237 F.3d 174 (2d Cir. 2001) ................................................................. 10

Constitutional Provisions

U.S. Const., Amend. I ............................................................................... 16

iii

Statutes and Rules

29 U.S.C. § 185............................................................................................ 2

S. Ct. R. 10 .................................................................................. 8, 9, 10, 12

S. Ct. R. 15(2) .............................................................................................. 7

S. Ct. R. 15.3 ........................................................................................... 7, 8

S. Ct. R. 14.1.(a) .................................................................................. 14, 16

iv

INTRODUCTION

Petitioner, William Scales (“Scales”) asks this Court to review the

decision of the Second Circuit Court of Appeals (Scales v. Hotel Trades

Council of N.Y. Local 6, No. 23-873-cv, 2025 WL 883053 (2d Cir. Mar. 21,

2025)) (“Second Circuit Decision”) affirming the decision of the District

Court for the Southern District of New York holding, inter alia, that

Respondent Hotel and Gaming Trades Council, AFL-CIO (f/k/a New York

Hotel and Gaming Trades Council, AFL-CIO) (“Union”), did not breach

its duty of fair representation to Scales. See Scales v. N.Y. Hotel & Motel

Trades Council, Loc. 6, No. 21 Civ. 8142 (JPC), 2023 WL 1779617

(S.D.N.Y. Feb. 06, 2023) (“District Court Decision”). Because this Court

grants a petition for writ of certiorari “only for compelling reasons” under

Supreme Court Rule 10, and the petition fails to present anything

approaching such, the Union respectfully requests that the Court deny

the petition.

STATEMENT

Respondent Union is a labor organization within the meaning of

federal labor laws, representing over 30,000 employees in the New York

City region’s hospitality industry. Scales was an employee of the Ace

Hotel (“Hotel”). On or about August 25, 2021, Scales filed a civil action in

the Supreme Court of the State of New York, County of New York,

alleging violations of Section 301 of the federal Labor Management

Relations Act (“LMRA”), 29 U.S.C. § 185 against the Union.

Specifically, Scales sued the Union alleging a “breach of contract”

relating to his 401(k) contributions; when the Union won bargaining

rights by National Labor Relations Board election for the Hotel’s

employees in 2012, it signed a Memorandum of Agreement with the

Hotel, allowing current employees to choose, within a specified election

period, to either remain on the Hotel’s existing 401(k) plan or be covered

by the industry pension plan, but not both. Employees who did not make

an election within the thirty-day election period were placed into the

industry pension plan by default. At the time of the election period, Scales

was on layoff. The crux of this litigation is Scales’ accusation that the

Union breached an alleged duty of fair representation (“DFR”) by not

affirmatively advising Scales of his right to choose to remain in the

employer-sponsored 401(k) plan while he was on layoff and not available

at the Hotel.

Scales initiated this action pro se on August 25, 2021 by suing the

Union in New York County Supreme Court. The Union removed the case

2

to the District Court for the Southern District of New York in October,

2021. During the District Court litigation, the Union proceeded to

arbitration against the Hotel regarding Scales’ underlying claims, and

the litigation was stayed by order of the Court. After the arbitration was

decided against the Union with Scales’ active participation, Scales’ action

against the Union proceeded. Following two amended complaints, on

February 6, 2023, District Court Judge John P. Cronan granted the

Union’s motion to dismiss because Scales’ allegations did not, as a matter

of law, plausibly state a claim for breach of the Union’s DFR. District

Court Decision, 2023 WL 1779617 at **7-8. Citing ample governing

precedent, Judge Cronan held that the Union did not act in an arbitrary,

discriminatory or bad faith manner in representing Scales and dismissed

the action.

On appeal, the Court of Appeals appointed pro bono counsel Kobre

& Kim to represent Scales. The two issues Kobre & Kim presented on

appeal for Scales were (1) whether the District Court erred in finding that

Scales failed to state a claim upon which relief can be granted, and (2)

whether the District Court abused its discretion in failing to appoint pro

bono counsel to Scales. Second Circuit Decision, 2025 WL 883053 at *2.

3

Under the failure to state a claim issue, Kobre & Kim also argued that

facts alleged in Scales’ various filings below raised: (a) an alternative

“breach of contract” claim that the Union breached the collective

bargaining agreement and (b) a conversion claim. Id.

First, the Court of Appeals agreed with the District Court that

Scales failed to allege a DFR claim against the Union because he failed

to allege conduct on the part of the Union that was arbitrary,

discriminatory, or in bad faith. On the appeal, Scales argued that the

Union engaged in arbitrary and/or bad faith conduct because the same

law firm represented his interests in the arbitration against the Hotel

while litigating against him in the stayed action in the District Court.

The Court of Appeals found that “such representation is not alone

sufficient to show that the Union’s behavior was, ‘in light of the factual

and legal landscape at the time of [its] actions, . . . so far outside a wide

range of reasonableness as to be irrational,’ as required for

arbitrariness.” Id. (citing Vaughn v. Air Line Pilots Ass’n, Int’l, 604 F.3d

703, 709 (2d Cir. 2010) (additional citation omitted). The Court of Appeals

also agreed that nothing in the record could “give rise to an inference that

the Union acted, as required for bad faith, ‘with an improper intent,

4

purpose, or motive.’” Id. (citing Vaughn, 604 F.3d at 710). Accordingly,

the Court of Appeals concluded de novo that Scales failed to state a DFR

claim under the LMRA.

The Court of Appeals also rejected Scales’ alternative theories

raised on appeal by his appointed pro bono law firm. As to the additional

breach of contract claim, the Court acknowledged that, “while a Union

may assume contractual duties above and beyond the duty of fair

representation implied by the NLRA, if an employee claims that a union

owes him such a duty, ‘he must be able to point to language in the

collective-bargaining agreement specifically indicating an intent to

create obligations enforceable against the union by the individual

employees.’” Id. at *3. (citing United Steelworkers of Am., AFL-CIO-CLC

v. Rawson, 495 U.S. 362, 374 (1990)). Because Scales failed to cite

language in the agreement between the Hotel and the Union obligating

the Union to notify employees on layoff about the 401(k) election period,

he could not “enforce the bargaining agreement against the Union.” Id.

As to the conversion claim, the Court of Appeals cited New York

law barring conversion claims “based on the same facts as [a] cause of

action to recover damages for breach of contract,” and determined that

5

Scales’ conversion claim thus failed to establish a distinct cause of action

in tort. Id. (internal citations omitted).

Finally, to the allegation that the District Court abused its

discretion in failing to appoint Scales pro bono counsel, the Court of

Appeals held that the District Court properly applied controlling

precedent requiring the court to first “determine whether the indigent’s

position seems likely to be of substance” and consider additional factors

only after the “likely to be of substance” threshold has been met. Id.

(citing Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986)).

Acknowledging that the District Court considered and reasonably

concluded on five occasions that Scales “failed to meet the threshold

requirement of showing ‘likely merit,’” there was no obligation to apply

the additional factors. Id. The Court of Appeals thus affirmed the District

Court’s judgment in all respects.

Scales now seeks this Court’s review of the Court of Appeals’

affirmation of the District Court’s judgment, presenting a number of

questions, most of which ask, again or in various new ways, whether the

Union breached its duty of fair representation or the U.S. Constitution,

6

and/or are raised for the first time in this Petition. None of Scales’

arguments justify or are permissible on certiorari appeal.

MISSTATEMENTS OF FACT OR LAW

In accordance with Supreme Court Rule 15(2), the Union points out

the following:

1.

Petitioner alleges violations of speech and due process

in the U.S. Constitution. Neither were raised to the District Court

or Court of Appeals (with appointed counsel). Neither applies to the

Union, a non-governmental party.

2.

Petitioner alleges a “campaign[,] which was held a few

years after” the Union won representational rights at the Hotel.

This allegation was not raised to the District Court or Court of

Appeals.

ARGUMENT

I.

THE PETITION FAILS RULE 15.3

Under Rule 15.3, “[t]he failure of a petitioner to present with

accuracy, brevity, and clarity whatever is essential to ready and adequate

7

understanding of the points requiring consideration is sufficient reason

for the Court to deny a petition.” S. Ct. R. 15.3.

Plaintiff’s Petition fails accuracy, clarity and relevance, confusing

rather than aiding in understanding the points allegedly requiring

consideration of the Court of Appeals’ decision in favor of the Union. This

failure alone should be “sufficient reason for the Court to deny a petition.”

Id. The Court should, therefore, deny Plaintiff’s Petition under Rule 15.3

alone, without considering more. However, should the Court consider the

Petition, the Union addresses the merits of the Court of Appeals’ Decision

in Part II below, then attempts to address Scales’ extra questions in Part

III.

II.

NO COMPELLING REASONS EXIST

TO REVIEW THE COURT OF APPEALS’ DECISION

Under Rule 10 of this Court’s rules, a petition for writ of certiorari

should only be granted for compelling reasons. As relevant here, to review

a decision of a court of appeals, the Court typically considers reasons such

as whether:

a United States court of appeals has entered a

decision in conflict with the decision of another

United States court of appeals on the same

important matter; has decided an important

8

federal question in a way that conflicts with a

decision by a state court of last resort; or has so far

departed from the accepted and usual course of

judicial proceedings, or sanctioned such a

departure by a lower court, as to call for an

exercise of this Court's supervisory power;

[or]

a United States court of appeals has decided an

important question of federal law that has not

been, but should be, settled by this Court, or has

decided an important federal question in a way

that conflicts with relevant decisions of this Court.

S. Ct. R. 10. Further, “[a] petition for a writ of certiorari is rarely granted

when the asserted error consists of erroneous factual findings or the

misapplication of a properly stated rule of law.” S. Ct. R. 10.

A.

The Appeals Court Correctly Affirmed

the District Court’s Determination

that Scales Failed to State a Claim

Upon Which Relief May be Granted

The Court of Appeals reviewed de novo the District Court’s

determination that Scales failed to state a claim upon which relief may

be granted, affording him the liberal construction given to pro se

plaintiffs and acknowledging submissions beyond the four corners of the

complaint. Second Circuit Decision, 2025 WL 883053 at *2. The Court of

Appeals’ decision affirming the District Court in all respects raises none

9

of the grounds for which certiorari may be granted under Rule 10 of this

Court. Accordingly, the Petition should be denied.

1.

No DFR Breach

First, the Court of Appeals recited the standard, established by this

Court in DelCostello v. International Brotherhood of Teamsters, 462 U.S.

151, 164-65 (1983) required to plausibly allege a breach of the duty of fair

representation:

To establish a “hybrid claim” under the Labor

Management Relations Act (LMRA) and the National

Labor Relations Act (NLRA), “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.”

Second Circuit Decision, 2025 WL 883053 at *2 (quoting White v. White

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

The Court of Appeals correctly observed precedent that “[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’” (id.) (citing Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44

(1998)) and that the Union’s conduct “must cause the plaintiff’s injuries.”

Id. (citing White v. White Rose Food, 237 F.3d at 178). The Court of

Appeals also acknowledged the “highly deferential” review in recognition

10

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

their bargaining responsibilities.” Id. (citing Vaughn v. Air Line Pilots

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

v. O’Neill, 499 U.S. 65, 78 (1991)).

Applying these well-established standards, the Appeals Court

agreed with the District Court that Scales raised no viable DFR claim,

notwithstanding Scales’ argument that the District Court had “failed to

consider certain filings that plausibly allege that the Union engaged in

arbitrary and bad faith conduct by having the firm who represented his

interests in the arbitration proceeding simultaneously oppose him in this

litigation.” Id. Rather, the Appeals Court correctly determined that “such

representation is not alone sufficient to show that the Union’s behavior

was, ‘in light of the factual and legal landscape at the time of [its] actions,

. . . so far outside a wide range of reasonableness as to be irrational,’ as

is required for arbitrariness . . . ” and further, that such conduct failed to

“give rise to an inference that the Union acted, as is required for bad

faith, ‘with an improper intent, purpose, or motive.’” Id. (citing Vaughn,

604 F.3d at 709, 710 (additional citations omitted)). Because the Appeals

Court applied longstanding and well-established Supreme Court and

11

derivative Second Circuit precedent, its determination that there was no

DFR breach did not

conflict with the decision of another United States

court of appeals on the same important matter; . .

. decide[] an important federal question in a way

that conflicts with a decision by a state court of last

resort; . . . so far depart[] from the accepted and

usual course of judicial proceedings, or sanction[]

such a departure by a lower court, as to call for an

exercise of this Court’s supervisory power . . .

decide[] an important question of federal law that

has not been, but should be, settled by this Court,

or . . . decide[] an important federal question in a

way that conflicts with relevant decisions of this

Court.

S. Ct. R. 10. Accordingly, there are no grounds upon which to review the

Court of Appeals’ determination that the Union did not breach its DFR

to Scales.

2.

No Contract or Conversion Claims

The Appeals Court also correctly determined that neither of Scales’

alternate theories of liability stated a claim against the Union.

First, citing this Court’s decision in United Steelworkers of America,

AFL-CIO-CLC v. Rawson, 495 U.S. 362, 374 (1990), the Appeals Court

correctly observed that although

a Union may assume contractual duties above and beyond the

duty of fair representation implied by the NLRA, if an

12

employee claims that a union owes him such a duty, “he must

be able to point to language in the collective-bargaining

agreement specifically indicating an intent to create

obligations enforceable against the union by the individual

employees.”

Second Circuit Decision, 2025 WL 883053 at *3 (citing Rawson, 495 U.S.

at 374). The Court of Appeals correctly considered fatal to Scales’ breach

of contract claim his counsel’s inability to point to any contractual

language creating such a duty.

As to Scales’ conversion claim, the Appeals Court cited state law

establishing that “a conversion claim ‘cannot be predicated on a mere

breach of contract.’” Id. (citing Rynasko v. New York Univ., 63 F.4th 186,

196 (2d Cir. 2023) (quotation marks omitted)). Scales’ conversion claim

was irrefutably “based on the same facts as the cause of action to recover

damages for breach of contract,” and thus “fail[ed] to allege [a] distinct,

cognizable [tort] cause[] of action.” Id. (citing Edem v. Grandbelle Int’l.,

Inc., 118 A.D.3d 848, 849, 988 N.Y.S.2d 244 (2d Dep’t 2014)).

Scales presents no argument as to why these determinations

warrant review by this Court, and indeed there are none. Because there

are no reasons, let alone compelling ones, to question the Court of

13

Appeals’ decision affirming Scales’ failure to state a claim, the Petition

should be denied.

B.

The Second Circuit Properly Determined that the

District Court Did Not Abuse Its Discretion in

Declining to Appoint Pro Bono Counsel

Nothing in Scales’ petition suggests that he is appealing the

Appeals Court’s determination that the District Court did not abuse its

discretion in declining to appoint pro bono counsel at the District Court

level. Accordingly, that issue is not before this Court. S. Ct. R. 14.1.(a)

(“Only the questions set out in the petition, or fairly included therein, will

be considered by the Court.”).

In any event, the Court of Appeals correctly found no abuse of

discretion by the District Court. First, the Court recited the abuse of

discretion standard, observing that “[a] district court abuses its

discretion when (1) its decision rests on an error of law . . . or a clearly

erroneous factual finding, or (2) its decision – though not necessarily the

product of legal error or a clearly erroneous factual finding – cannot be

located within the range of permissible decisions.” Second Circuit

Decision, 2025 WL 883053 at *3 (quoting In re Bank of Am. Corp. Sec.,

14

Derivative, & Emp. Ret. Income Sec. Act Litig., 772 F.3d 125, 132 (2d Cir.

2014) (cleaned up)).

Applying this abuse of discretion standard, the Court of Appeals

held that the District Court properly applied controlling precedent

requiring the court to first “determine whether the indigent’s position

seems likely to be of substance” and consider additional factors only after

the “likely to be of substance” threshold has been met. Id. (citing Hodge

v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986)). Acknowledging that the

District Court concluded on five (5) different occasions that Scales “failed

to meet the threshold requirement of showing ‘likely merit,’” there was

no obligation to apply the additional factors. Accordingly, nothing about

the Second Circuit’s review for abuse of discretion of the District Court’s

decision not to appoint pro bono counsel warrants review by this Court.

III.

SCALES’ EXTRA QUESTIONS PRESENTED ARE

UNINTELLIGIBLE, RAISED FOR THE FIRST TIME IN THIS

PETITION, AND/OR ARE DUPLICATIVE OF THE DFR

QUESTION

Seemingly ignoring altogether the Second Circuit Decision for

which he petitions for review, Scales presents several unclear “Questions

15

for Review,” most of which he raises in this Petition for the first time in

this action.

For example, Scales asks “Did the [Union], Violate the Constitution

of the United States of America, by not allowing Mr. Scales the plaintiff,

freedom of speech” [sic]. Petition at 2. In addition to the fact that Scales

does not provide any hints as to how the Union may have violated his

freedom of speech, Scales impermissibly presents this question for the

first time to this Court. See S. Ct. R. 14.1.(a). More fundamentally, the

Union is a labor organization within the meaning of federal labor law.

Scales does not allege that the Union is a state actor nor alleges any state

action as required for First Amendment violation allegations. See

Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 804 (2019)

(stating

that

“[t]he

Free

Speech

Clause

of

the First

Amendment constrains governmental actors and protects private

actors”); Harris v. Quinn, 573 U.S. 616, 629 n.4 (2014) (stating that

“the First Amendment does not restrict private conduct”). Accordingly,

this extra question does not support certiorari.

Next,

Scales

asks

whether

the

Union

“exhibit[ed]

fair

representation and business practices.” Petition at 2. First, it is not

16

known what is meant by “business practices,” but as explained supra,

any duty of fairness the Union had toward Scales is subsumed by its DFR

absent specifically identified language, and whether the Union breached

its DFR under the LMRA and NLRA is the only “important federal

question” in this case. Further, and as explained supra, the Second

Circuit correctly applied its own precedent and the precedent of this

Court reflecting the long-established standard for determining whether

a Union has breached its DFR and determined that Scales’ allegations

failed to state a claim upon which relief may be granted because they did

not allege Union conduct that was arbitrary, discriminatory or in bad

faith.

The same is true for Scales’ next question, which asks:

Should the Hotel and Motel Trades Council be

allowed to terminate existing contracts without

warning or any form of protocols, upon entering a

job site and becoming the active bargaining union

for employee’s [sic], and do they have a legal

obligation to notify these employee’s [sic] of their

privilege and intentions, prior to becoming the

active bargaining Union for the employee’s [sic]?

Petition at 2. Read liberally, this question appears to reframe the issue

of whether the Union had a duty to Scales and other represented

employees, what that duty was, and whether the Union breached that

17

duty. As explained supra, the District Court properly determined, and

the Court of Appeals correctly agreed, that any duty the Union had to

notify Scales of any changes resulting from its status as exclusive

bargaining representative is subsumed by the Union’s DFR, which was

not breached.

Scales’ next two questions appear to question the arbitration

proceedings and decision, which was issued by the industry arbitrator

during the District Court proceedings on January 6, 2022. Any such

claims are improperly raised on this Petition for myriad reasons, the

most obvious of which being that Scales has never petitioned or moved to

vacate the arbitration decision in any lower court, and any application to

do so now would be wildly untimely. Moreover, Scales’ appointed counsel,

Kobre & Kim, made the arbitration, which was irrelevant to the District

Court, the centerpiece of its argument. As shown above, the Second

Circuit applied Supreme Court precedent to likewise find the arbitration

insufficient to support a breach of the Union’s duty.

Scales also questions why “newly hired employees [are] provided

the privilege and option, of selecting between an employer provided

retirement plan and a Union provided retirement plan” and whether “the

18

plaintiff’s calendar request [should] have been honored by Judge John p

[sic] Cronan, during the courts [sic] 1st conference with all parties?” The

former, which seems to re-raise the issue of employees’ rights to opt in or

out of collectively bargained terms and conditions of employment, merely

reframes Scales’ rejected DFR claim. The latter takes issue with some

perceived wrongdoing on the part of the District Court regarding a

calendar request, which is neither explained nor identified in any way to

which the Union may intelligently respond, nor this court should review.

CONCLUSION

Plaintiff’s Petition for a writ of certiorari should be denied.

Dated:

New York, New York

October 23, 2025

Respectfully submitted,

By: /s/Jane Lauer Barker

JANE LAUER BARKER

PITTA LLP

120 Broadway; 28th Floor

New York, NY 10271

212-652-3890

jbarker@pittalaw.com

Counsel for Respondent

19