Case: 08-10807 Document: 00511172029 Page: 1 Date Filed: 07/13/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 13, 2010
No. 08-10807 Lyle W. Cayce
Clerk
CAREFLITE
Plaintiff – Counter-Defendant-Appellant
v.
OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION,
AFL-CIO
Defendant – Counter-Claimant–Appellee
CRAIG LEE HILTON
Counter-Claimant–Appellee
Appeal from the United States District Court
for the Northern District of Texas
Before DENNIS and ELROD, Circuit Judges.*
DENNIS, Circuit Judge:
This case involves the scope of a grievance procedure set forth in a
collective bargaining agreement between an airline and its pilots’ union under
the Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq. “The RLA, which was
extended in 1936 to cover the airline industry, see Act of Apr. 10, 1936, ch. 166,
49 Stat. 1189; 45 U.S.C. §§ 181-188, sets up a mandatory arbitral mechanism to
*
Circuit Judge BARKSDALE heard argument in this case but thereafter recused. The
case is being decided by a quorum. 28 U.S.C. § 46(d).
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handle disputes ‘growing out of grievances or out of the interpretation or
application of agreements concerning rates of pay, rules, or working conditions.’”
Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246 (1994) (quoting 45 U.S.C. §
151(a)).
The first question in this case is whether an airline pilot and his
bargaining representative, the Professional Employees International Union,
AFL-CIO (“the Union”), who claim that he was wrongfully discharged because
he did not timely obtain an Airline Transport Pilot Certificate (“ATP”) from the
Federal Aviation Administration (“FAA”), may seek redress through the RLA’s
arbitral mechanism, or whether they must pursue other remedies for wrongful
discharge, because the collective bargaining agreement explicitly provides that
“termination of employment resulting from a pilot's failure to obtain an ATP
within the time requirements of this section is non-grievable and
non-arbitrable.” We conclude that the grievance concerning his discharge is not
a dispute growing out of the interpretation or application of the collective
bargaining agreement and, therefore, is not a grievance or dispute subject to the
RLA’s arbitral mechanism.
The second question is whether the airline pilot and the Union, in claiming
that his employer, CareFlite, during his employment, wrongfully denied him an
extension and adequate time to prepare for the ATP test, thus treating him in
a less favorable manner than required by the CBA in retaliation for his having
prevailed in a prior arbitration proceeding, may seek redress through the RLA’s
arbitral mechanism. Because the CBA does not expressly or implicitly exclude
this dispute from the grievance and arbitration mechanism, and this question
calls for an interpretation and application of the CBA, we conclude that the pilot
and the Union may seek redress through the RLA’s arbitral mechanism to
resolve this dispute.
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I. BACKGROUND
CareFlite is a non-profit medical air transportation company operating the
largest emergency medical helicopter service in North Texas, with six medical
transport helicopters operating from five bases in the Dallas-Fort Worth area.
As of the time of the events giving rise to this lawsuit, CareFlite employed 18
helicopter pilots; CareFlite’s pilots have been represented by the Union since
2001. CareFlite and the Union are parties to a collective bargaining agreement
(“the CBA”) that is effective from April 6, 2006 until April 6, 2011. The CBA
requires that all of the pilots in the bargaining unit acquire an ATP, the FAA’s
highest pilot certification. At the time the CBA was negotiated, only a few
CareFlite pilots already possessed ATPs. The CBA required CareFlite to provide
an ATP training class for its pilots and specified that pilots employed by
CareFlite at the time the agreement was adopted would have one year from the
date of this training class to obtain their ATPs. Finally, the CBA included the
following clause: “termination of employment resulting from a pilot’s failure to
obtain an ATP within the time requirements of this section is non-grievable and
non-arbitrable.” CBA Art. 12(1). The CBA also included a clause stating that “[a]
termination of employment [for failure to complete required training or
certification, which includes a termination for failure to obtain or have an ATP]
is non-grievable and non-arbitrable.” CBA Art. 13(4).
Craig Lee Hilton began working as a pilot for CareFlite on December 10,
1998. Beginning in November 2005, Hilton served as the CareFlite Committee
Chairman for OPEIU Local 108, the highest union position in the CareFlite
bargaining unit. On January 12, 2006, Hilton, in his capacity as a union
representative, informed Raymond Dauphinais, CareFlite’s Vice President and
Director of Operations, that the pilots were concerned, for reasons the record
does not disclose, about CareFlite’s choice of employee for the position of
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Aviation Training Manager. On June 6, 2006, CareFlite discharged Hilton,
purportedly due to incidents involving interpersonal conflict and lack of
judgment. The Union filed a grievance relating to that discharge, alleging that
CareFlite was retaliating against Hilton for his union activity, and the arbitrator
ordered Hilton reinstated on the grounds that CareFlite did not have cause to
terminate him.
The arbitrator gave CareFlite two weeks to reinstate Hilton. CareFlite
offered Hilton reinstatement at the end of the two-week period, on Friday, April
20, 2007. Hilton accepted. On Friday, May 4, 2007, CareFlite told Hilton to
report for training on Monday, May 7, 2007, his first day of work following
reinstatement. Upon returning to work Hilton and the Union, on his behalf,
asked various members of CareFlite’s management whether Hilton would be
given an additional ten months (the time he was out of work) to complete his
ATP requirement, given that, due to the improper discharge, he had not been
employed by CareFlite for most of the year the other pilots had had to obtain
their ATPs. CareFlite management indicated it would not grant any such
extension, because Hilton could have obtained his ATP during the time he was
discharged or after the arbitrator ordered his reinstatement, or could still obtain
it by the deadline. The Union filed a grievance on May 15, 2007, based on
CareFlite’s unwillingness to extend the ATP deadline for Hilton (“time extension
grievance”), accusing CareFlite of retaliating against Hilton for prevailing in the
arbitration. CareFlite denied the grievance and maintains that it is not
arbitrable under the CBA.
On May 26, 2007, the deadline for acquiring an ATP by “current” pilots
under the CBA, CareFlite discharged Hilton for not possessing the certification.
On June 1, 2007, the Union filed a grievance challenging Hilton’s discharge and
seeking reinstatement and an extension of the ATP deadline (“discharge
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grievance”). CareFlite denied the grievance and maintains that it is not
arbitrable under the CBA. On June 4, 2007, CareFlite filed a motion in federal
district court seeking a declaratory judgment that both the May 15, 2007, time
extension grievance and the June 1, 2007, discharge grievance are not arbitrable
and cannot be submitted to arbitration because the CBA provides that
“termination of employment resulting from a pilot’s failure to obtain an ATP
within the time requirements of this section is non-grievable and non-
arbitrable.” CBA Art. 12(1). The Union and Hilton filed a counterclaim seeking
a declaratory judgment that the grievances are arbitrable, or alternatively,
seeking judicial relief on independent state and federal law claims for CareFlite’s
alleged breach of contract and violation of the RLA. The parties filed cross-
motions for summary judgment. On July 30, 2008 the district court denied
CareFlite’s motion for summary judgment and granted the Union and Hilton’s
motion for summary judgment, ordering that both grievances be submitted to
arbitration. The district court did not address any of the remaining claims for
breach of contract or violation of the RLA. CareFlite timely appealed.
II. STANDARD OF REVIEW
We review rulings on motions for summary judgment de novo. Shaw
Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538 (5th Cir. 2004). A
party is entitled to summary judgment only if “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). When cross-motions for summary judgment
have been filed, this court determines whether a genuine issue of material fact
exists or whether one party is entitled to prevail as a matter of law. Shaw
Constructors, 395 F.3d at 539. If the unsuccessful party below is entitled to
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prevail as a matter of law, this court will enter judgment for that party. Id. at
539 n.9.
III. DISCUSSION
As the Supreme Court explained in Hawaiian Airlines, “Congress’ purpose
in passing the RLA was to promote stability in labor-management relations by
providing a comprehensive framework for resolving labor disputes.” 512 U.S. at
252 (citing Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 562
(1987) and 45 U.S.C. § 151a). The RLA therefore “establishes a mandatory
arbitral mechanism for ‘the prompt and orderly settlement’ of two classes of
disputes.” Id. (quoting 45 U.S.C. § 151a). The first class of disputes are those
concerning “rates of pay, rules or working conditions”: these are “major”
disputes. Id. “Major disputes relate to ‘the formation of collective [bargaining]
agreements or efforts to secure them.’” Id. (quoting Consol. Rail Corp. v. Ry
Labor Executives’ Ass’n, 491 U.S. 299, 302 (1989)). The second class of disputes
are “minor” disputes–these “grow[] out of grievances or out of the interpretation
or application of agreements covering rates of pay, rules, or working conditions.”
45 U.S.C. § 151a. “Minor disputes involve ‘controversies over the meaning of an
existing collective bargaining agreement in a particular fact situation.’”
Hawaiian Airlines, 512 U.S. at 253 (quoting Trainmen v. Chicago R. & I.R. Co.,
353 U.S. 30, 33 (1957)). Thus, the Supreme Court has explained, “major disputes
seek to create contractual rights, minor disputes to enforce them.” Id. at 253
(citing Consol. Rail, 491 U.S. at 302, citing Elgin, J. & E. Ry. Co. v. Burley, 325
U.S., 711, 723 (1945), 65 S.Ct., at 1289).
If the grievances are minor disputes, they “must be resolved only through
the RLA mechanisms, including the carrier’s internal dispute-resolution
processes and an adjustment board established by the employer and the unions.”
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Id. at 253 (citing 45 U.S.C. § 184; Buell, 480 U.S. at 563, 107 S.Ct., at 1414;
Consol. Rail, 491 U.S. at 302, 109 S.Ct., at 2480). To determine whether the
grievances in this case constitute a minor dispute we turn first to the Supreme
Court’s inquiry into the scope of a minor dispute under the RLA.
In Hawaiian Airlines, the Court’s inquiry into the scope of minor disputes
began with the text of the statute. 512 U.S. at 253. Because the statute defines
minor disputes to include “disputes . . . growing out of grievances, or out of the
interpretation or application of [CBAs],” the Court first considered the argument
that this disjunctive language must indicate that “grievances” means something
other than labor-contract disputes, else the term “grievances” would be
superfluous. Id. at 254. Such an argument suggests that “grievances” should be
read to mean all employment-related disputes, including those based on
statutory or common law. Id. The Court rejected that interpretation, however,
concluding that “[e]ven if we were persuaded that the word ‘or’ carried this
weight, such an interpretation would produce an overlap not unlike the one it
purports to avoid, because that expansive definition of ‘grievances’ necessarily
would encompass disputes growing out of ‘the interpretation or application’ of
CBA’s.”1 Id. at 253-254. “Thus, in attempting to save the term ‘grievances’ from
superfluity, that overly expansive reading would make the phrase after the ‘or’
mere surplusage.” Id. at 254.
The Court thought it more likely that “grievances,” like disputes over “the
interpretation or application” of CBAs, refers to disagreements over how to give
effect to the bargained-for agreement. Id. As the Court pointed out, “the use of
1
The Court cited United States v. Olano, 507 U.S. 725, 732, (1993) (reading “error or
defect” to create one category of “error”) (citing United States v. Young, 470 U.S. 1, 15 n.12
(1985)), and McNally v. United States, 483 U.S. 350, 358-59 (1987) (second phrase in
disjunctive added simply to make the meaning of the first phrase “unmistakable”).
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‘grievance’ to refer to a claim arising out of a CBA is common in the labor-law
context in general,” id. (citing Paperworkers v. Misco, Inc., 484 U.S. 29, 36, 108
S.Ct. 364, 370, 98 L.Ed.2d 286 (1987)), and it has been “understood in this way
in the RLA context,” Hawaiian Airlines, 512 U.S. at 254 (citing a Congressional
report2 ). “Significantly,” the Court added, “the adjustment boards charged with
administration of the minor-dispute provisions have understood these provisions
as pertaining only to disputes invoking contract-based rights.” Id. (citing
National Rail Adjustment Board decisions and System Boards of Adjustment
decisions 3 ).
Accordingly, the Court concluded that the most natural reading of the
term “grievances” in this context is as a synonym for disputes involving the
application or interpretation of a CBA. Id. at 255.4 Further, the Court
stated,“[n]othing in the legislative history of the RLA 5 or other sections of the
2
H.R. Rep. No. 1944, 73d Cong., 2d Sess., 2-3 (1934) (referring to RLA settlement of
“minor disputes known as ‘grievances,’ which develop from the interpretation and/or
application of the contracts between the labor unions and the carriers”).
3
The Court cited the following: “ See, e.g., NRAB Fourth Div. Award No. 4548 (1987)
(function of the National Rail Adjustment Board (Board) is to decide disputes in accordance
with the controlling CBA); NRAB Third Div. Award No. 24348 (1983) (issues not related to the
interpretation or application of contracts are outside the Board's authority); NRAB Third Div.
Award No. 19790 (1973) (‘[T]his Board lacks jurisdiction to enforce rights created by State or
Federal Statutes and is limited to questions arising out of interpretations and application of
Railway Labor Agreements’); Northwest Airlines/Airline Pilots Assn., Int’l System Bd. of
Adjustment, Decision of June 28, 1972, p. 13 (‘[B]oth the traditional role of the arbitrator and
admonitions of the courts require the Board to refrain from attempting to construe any of the
provisions of the [RLA]’); United Airlines, Inc., 48 LA 727, 733 (BNA) (1967) (‘The jurisdiction
of this System Board does not extend to interpreting and applying the Civil Rights Act’).”
4
“[T]he word ‘or’ may be used to indicate ‘the synonymous, equivalent, or substitutive
character of two words or phrases.’” Id. (quoting Webster’s Third New International Dictionary
1585 (1986)).
5
“During the debates surrounding the RLA’s enactment in 1926, floor statements that,
in isolation, could support a broader interpretation of ‘grievances’ were counterbalanced by
8
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statute6 undermines this conclusion.” Id. Further, the Court’s case law confirms
that the category of minor disputes contemplated by § 151a are those that are
grounded in the CBA. The Court has explained that major disputes are those
that “arise where there is no [collective agreement] or where it is sought to
change the terms of one, and therefore the issue is not whether an existing
agreement controls the controversy.” Consol. Rail, 491 U.S. at 302. Major
disputes “look to the acquisition of rights for the future, not to assertion of rights
claimed to have vested in the past.” Id. (quoting Burley, 325 U.S. at 723).
In Hawaiian Airlines, the employee in question, Grant Norris, was an
aircraft mechanic who worked for Hawaiian Airlines. Norris notified his
supervisors that a damaged axle sleeve on a plane needed to be replaced before
it would be safe to fly. His supervisor overruled his recommendation, ordering
that the piece be sanded and reinstalled. The plane completed its journey safely
but Norris refused to certify that the repair had been performed correctly and
other statements – some even by the same legislators – that equated grievances with contract
interpretation. Compare 67 Cong. Rec. 4517, 8807 (1926), with id., at 4510, 8808. This
inconclusive debate hardly calls for fashioning a broad rule of pre-emption. Moreover, in 1934
when Congress amended the RLA to make arbitration mandatory for minor disputes, the
accompanying House Report stated that the bill was intended ‘to provide sufficient and
effective means for the settlement of minor disputes known as “grievances,” which develop
from the interpretation and/or application of the contracts between the labor unions and the
carriers, fixing wages and working conditions.’ H.R. Rep. No. 1944, 73d Cong., 2d Sess., 2-3
(1934).” 512 U.S. at 255 n.4.
6
“Petitioners cite the statute’s reference to the parties’ general duties as including
‘settl[ing] all disputes, whether arising out of the application of [collective bargaining]
agreements or otherwise.’ 45 U.S.C. § 152 First. This provision, which is phrased more broadly
than the operative language of § 153 First (I), does not clearly refer only to minor disputes. But
even if this provision is read to require parties to try to settle certain issues arising out of the
employment relationship but not specifically addressed by the CBA, this does not compel the
conclusion that all issues touching on the employment relationship must be resolved through
arbitration or that all claims involving rights and duties that exist independent of the CBA
are thereby pre-empted. Our precedents squarely reject this pervasive pre-emption.” 512 U.S.
at 255 n.5 (alterations in original).
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that the plane was fit for flight. Norris was suspended and invoked the grievance
procedure contained in the CBA between Hawaiian Airlines and Norris’ union.
The hearing officer terminated Norris for insubordination; Norris subsequently
appealed his termination. No appeal hearing was held, but Norris filed suit in
state court. 512 U.S. at 248-52.
Eventually the Supreme Court granted certiorari to resolve the question
of whether Norris’ state-law wrongful-discharge tort claims were preempted by
the RLA. The Court noted that the right Norris asserted – not to be wrongly
discharged for his whistleblowing activities – arose solely from state law, from
an independent duty not created by the CBA. Id. at 258. Thus “[t]he parties’
obligation under the RLA to arbitrate disputes arising out of the application or
interpretation of the CBA did not relieve petitioners of this duty.” Id. In other
words, the Court held that the RLA’s mandatory arbitration mechanism does not
apply to all disputes between an employer and its employees, or even to all non-
major disputes between an employer and its employees, but only to those rights
which arise from the provisions of a CBA. The assertion of any right that is not
created by a CBA is therefore not subject to binding arbitration under the
statute. See id.7 Norris’ state-law claim against Hawaiian Airlines for wrongful
discharge was therefore not subject to mandatory arbitration. Id. at 266.
In so holding, the Court relied not only on the foregoing analysis, but also
on its preemption doctrine, developed in the context of both the RLA and other
labor relations statutes. The Court noted that it had previously held that “the
RLA’s mechanism for resolving minor disputes does not pre-empt causes of
7
See also Air Line Pilots Ass’n, Int’l v. Delta Air Lines, Inc., 863 F.2d 87, 92-95 (D.C.
Cir. 1988) (rejecting union’s argument that RLA arbitration requirements cannot be waived
or bargained away because the purpose of an arbitration board under the RLA is to decide
disputes arising out of the CBA, and if a CBA specifically excludes an issue from arbitration
or grievance, then a claim based on that issue cannot be said to arise from it).
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action to enforce rights that are independent of the CBA.” Id. at 256 (citing
Missouri Pac. R. R. Co. v. Norwood, 283 U.S. 249, 258, 51 S.Ct. 458, 462, 75
L.Ed. 1010 (1931)). Thus, “substantive protections provided by state law,
independent of whatever labor agreement might govern, are not pre-empted
under the RLA,” even if some of the same factual issues are involved. Id. at 257.
The Court found further confirmation of its approach in its cases applying the
“virtually identical . . . pre-emption standard the Court employs in cases
involving § 301 of the [Labor Management Relations Act].” Id. at 260 (citing
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206
(1985)) and Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 408, 108 S.Ct.
1877, 100 L.Ed.2d 410 (1988)). The Court also noted that it had previously
applied such preemption analysis to cases involving wrongful discharge, see id.
(citing Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 92 S.Ct. 1562,
32 L.Ed.2d 95 (1972)), and thus held that Norris’ claim against Hawaiian
Airlines for breach of state law was not preempted by the RLA, 512 U.S. at 266.
The framework of Hawaiian Airlines controls our analysis here. The Union
argues that the grievances constitute a minor dispute that must be referred to
arbitration. In so doing, the Union argues that the provision in the CBA barring
the grievance of discharges based on failure to obtain an ATP within the
specified time period is void because it violates the RLA.8 Under the rationale of
Hawaiian Airlines, the Union’s effort to compel arbitration on the June 1, 2007,
discharge grievance must be rejected. The Union and CareFlite agreed to a CBA
excluding discharges arising from failure to obtain an ATP from arbitration and
the grievance process. The text of the CBA to this effect states “termination of
8
Without the exemption, the Union argues the discharge would be grievable as
violating the “just cause” discharge provision in Article 22, Section 2 of the CBA and the anti-
discrimination/retaliation provision in Article 3, Section 2 of the CBA.
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employment resulting from a pilot’s failure to obtain an ATP within the time
requirements of this section is non-grievable and non-arbitrable.” The CBA is
unambiguous on this point and is not capable of a construction that allows for
arbitration of discharges for failure to obtain an ATP. The Union’s argument
that the dispute is a minor one, therefore, is “frivolous” and “obviously
insubstantial.” See Consol. Rail, 491 U.S. at 307. The CBA does not give rise to
any right to grieve a discharge based on a pilot’s failure to timely obtain an ATP
certificate – in fact, the CBA expressly negates any such right or grievance.
Further, because the CBA expressly contemplates such ATP-related discharges
and excludes them from arbitration, Hilton’s termination is not "independent"
from the CBA for the purpose of determining whether Hilton may yet bring
claims under state or federal law, unless such state or federal claims arise from
rights created elsewhere than in the CBA.
Thus, as the Union rightly perceives, its only hope to compel arbitration
concerning the June 1, 2007, discharge grievance is to convince us to invalidate
the clause in the CBA that prohibits grievance of a discharge based on failure to
obtain an ATP. Contrary to the picture painted by the Union and the district
court, however, most of our sister circuits recognize that unions and employees
can contract to exempt certain claims from arbitration through their bargained-
for CBAs. See Air Line Pilots Ass'n, Int'l v. Delta Air Lines, Inc., 863 F.2d 87,
92-95 (D.C. Cir. 1988); Whitaker v. Amer. Airlines, Inc., 285 F.3d 940, 946-47
(11th Cir. 2002) (holding that where parties had excluded probationary pilots
from grieving discharge during probationary period plaintiff could point to no
provision of CBA that was violated by his discharge and thus the claim did not
arise under the CBA and was not a minor dispute subject to arbitration); In re
Contintental Airlines, Inc., 484 F.3d 173, 183 (3d Cir. 2007) (“The RLA does not
dispense with the preliminary question of arbitrability,” and therefore court
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must examine CBA to see whether parties have agreed to arbitrate dispute in
question). See also Bonin v. American Airlines, 621 F.2d 635 (5th Cir. 1980)
(recognizing that RLA’s arbitration provisions apply only to disputes that arise
from the terms of agreement in a CBA, not to every dispute between an employer
and a union); Air Line Pilots Ass’n v. Northwest, Inc., 627 F.2d 272 (D.C. Cir.
1980) (same). But see Bowe v. Nw. Airlines, Inc., 974 F.2d 101, 103 (8th Cir.
1994) (holding without further explanation that unquoted CBA provision
“referring [ERISA] disputes to federal court” did not preempt RLA’s mandatory
arbitration requirements).
The Union argues categorically, and the district court agreed, that
arbitrability principles developed by the Supreme Court under the National
Labor Relations Act, 45 U.S.C. § 151 et seq. (“NLRA”), cannot be applied to cases
or disputes under the RLA. The Union overlooks, however, an important
instance in which the Court clearly did so. In Hawaiian Airlines, the Court, as
discussed previously, explicitly extended its NLRA preemption doctrine to the
RLA, noting that while the two statutes “are not identical . . . the common
purposes of the two statutes, the parallel development of RLA and NLRA
preemption law, and the desirability of having a uniform common law of labor
law preemption support the application [of NLRA preemption doctrine] in RLA
cases as well.” Hawaiian Airlines, 512 U.S. at 263 n.9. Other courts have also
recognized this similarity. See Indep. Ass’n of Cont’l Pilots v. Cont’l Airlines, 155
F.3d 685, 695 n.8 (3d Cir. 1998) (explaining that “the ‘procedural arbitrability’
doctrine . . . long a mainstay of NLRA jurisprudence, has been held applicable
to RLA cases by other courts of appeals as well” and listing cases).9
9
The Supreme Court’s opinion in International Ass'n of Machinists, AFL-CIO v. Central
Airlines, 372 U.S. 682 (1963), cited by the district court, conveys the history of the RLA and
its general purpose of streamlining and settling labor disputes between railroad unions and
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In sum, an air carrier and its employees’ union may, under basic contract
and arbitration principles, agree to exclude certain disputes from grievance and
arbitration. See, e.g. Delta Air Lines, 863 F.2d at 92-95. Once the parties have
agreed to do so, any excluded dispute does not arise from any right conferred by
the CBA. In this case, the parties agreed through the CBA’s Arts. 12(1) and 13(4)
to exclude terminations for failure to obtain an ATP from the arbitration process,
and thus a dispute over a termination for failure to obtain an ATP does not arise
from any right conferred by the CBA. With this backdrop in mind, we proceed
to examine the differences between the two grievances.10
employers. The Union asks us to focus our decision solely on the Congressional purpose of
uniform dispute resolution in the railroad industry as described by Central Airlines. The
problem is that subsequent Supreme Court precedent has made perfectly clear that the
principles of contract interpretation developed under the LMRA apply to cases arising under
the RLA, and we thus must apply them here. See, e.g. Hawaiian Airlines, 512 U.S. at 260;
Lueck, 471 U.S. at 20; Lingle, 486 U.S. at 408.
The Union, and the district court, also place inordinate weight on Capraro v. United
Parcel Service Co., 993 F.2d 328, 335-36 (3rd Cir. 1993), in which the Third Circuit held that
a CBA cannot exempt entire categories of employees from the RLA grievance process and that
therefore a clause exempting probationary pilots from grieving their discharges might properly
deprive such pilots of any substantive right but could not deprive them of the procedural right
to take their concededly meritless claim to the SBA. The Third Circuit, however, although it
has not explicitly overruled Capraro, has subsequently held repeatedly that the question of
what the parties decided to arbitrate is for a court to decide. Continental Pilots, 155 F.3d at
692 (holding that question of what the parties agreed to arbitrate is one for court to consider
in RLA case); see also In re Contintental Airlines, Inc., 484 F.3d 173, 183 (3d Cir. 2007).
Further, our own circuit has adopted and affirmed the reasoning of a district court opinion
holding that a CBA could validly exclude probationary pilots – the same class at issue in
Capraro – from grieving their discharges through arbitration by the SBA. Texas Int’l Airlines,
Inc. v. Assoc. of Flight Attendants, 667 F.2d 1169 (5th Cir. 1982), affirming Texas Int’l Airlines,
Inc. v. Assoc. of Flight Attendants, 498 F. Supp. 437 (S.D. Tex. 1980).
10
The parties agreed to have the district court determine the arbitrability of each of the
two grievances and its underlying dispute at the same time. The parties did not agree to
combine them for any other purpose; and the court did not judicially order them to be
consolidated. See 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2382 (3d ed. 2008 & Supp. 2009). In fact, despite this agreement the parties briefed the
grievances separately in their summary judgment motions to the district court. Accordingly,
the parties’ agreement to have the matters considered and decided together did not affect the
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The CBA defines a grievance as “a dispute with respect to the
interpretation or application of this Agreement.” CBA, Art. 23(1). As Art. 23(2)
of the CBA provides, a written grievance is composed of three parts: “(1) the
relevant facts, (2) the contract provisions alleged to have been violated, and (3)
the specific remedy requested.” In this case, two grievances were filed reflecting
two separate and distinct disputes with respect to the interpretation or
application of the Agreement.
The May 15, 2007, time extension grievance (1) alleges that Hilton was not
properly paid or given enough time to obtain an ATP, was treated in a
retaliatory manner, and was threatened with termination for failure to obtain
an ATP; (2) lists Articles 1, 3, 12 (in the text of the facts alleged), 19, 22, 23, and
24 as the provisions violated; and (3) demands that Hilton be made whole for lost
wages and benefits from April 30, 2007, and be given an extension of at least six
months to obtain his ATP.
The June 1, 2007, discharge grievance, filed after Hilton’s termination,
repeats some of the same allegations, but, more importantly, it (1) alleges that
CareFlite wrongfully terminated Hilton on May 27, 2007; (2) lists the same
provisions of the CBA allegedly violated as the May 15, 2007, time extension
grievance, and (3) implicity requests, along with back pay and wages,
reinstatement. The June 1, 2007, discharge grievance necessarily calls for
setting aside Hilton’s discharge and reinstating his employment because it calls
for giving him a six-month extension to obtain his ATP, which he would need
only if employed by CareFlite. Thus, this grievance necessarily calls for an
legal nature and effect of each grievance and its underlying dispute under the RLA. See, e.g.,
Swift & Co. v. Hocking Valley Ry., 243 U.S. 281, 289 (1917) (“If the stipulation is to be treated
as an agreement concerning the legal effect of admitted facts, it is obviously inoperative, since
the court cannot be controlled by agreement of counsel on a subsidiary question of law.”).
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interpretation and application of Articles 12(1) and 13(4).
The differences between the two grievances require that they be
considered separately. First, the facts describe two entirely different situations.
Hilton’s being allegedly unfairly deprived of additional time to obtain an ATP
and merely “threatened” with termination for lack of an ATP may or may not
have violated a particular right arising from the CBA (the merits of that
grievance are for an arbitrator to decide). Also, such a grievance clearly is not
excluded by Articles 12(1) or 13(4) because it does not grieve or seek arbitration
of a termination dispute. Thus, regardless of its merits, its allegations are
grievable ones. But Hilton’s termination on May 27, 2007, for failure to obtain
an ATP, as the June 1, 2007, discharge grievance alleges, did not violate a right
arising from the CBA, because Articles 12(1) and 13(4) make such a termination
“non-grievable and non-arbitrable” under our foregoing analysis.
In addition, the relief requested by each of the two grievances is different.
The May 15, 2007, time extension grievance requests wages and back pay dating
from April 30, 2007. The June 1, 2007, discharge grievance requests wages and
back pay from a different date, May 27, 2007. More importantly, the June 1,
2007, discharge grievance implicitly would require reinstatement because it
demands that Hilton be given additional time to obtain an ATP, which would
only make sense if he were working for CareFlite once again. Thus, the later
grievance seeks different relief, viz., reinstatement, and requests back pay and
wages for a different period of time. Since, for the reasons previously explained
in this opinion, Hilton has no such right under the RLA to grieve his termination
for failure to obtain an ATP, he therefore has no right to obtain back pay from
the date of his termination, much less to be reinstated, because the termination
itself was not grievable or arbitrable under the RLA. (And of course he has no
right to an additional six months to obtain an ATP because he has no right to
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grieve for his job back.) Consequently, the Union cannot compel arbitration on
the June 1, 2007, discharge grievance. See Hawaiian Airlines, 512 U.S. at 266.
But the May 15, 2007, time extension grievance is a different matter. It is
beyond dispute that had Hilton filed only the May 15, 2007, time extension
grievance, it would be arbitrable under the RLA. Thus, there is no reason that
his filing the non-grievable June 1, 2007, discharge grievance should interfere
with the independent interpretation and application of the grievable May 15,
2007, time extension grievance. Further, the CBA does not limit the number of
grievances an employee can file. Thus there is no legal or common sense reason
that Hilton should lose his right to arbitrate his first valid grievance simply
because he later filed a second grievance that is not arbitrable. Pursuant to
Hilton’s April 15, 2007, grievance, he may have a right to have CareFlite’s
treatment of him with respect to adequate time to prepare for the ATP test
declared unfair, unjust, and discriminatory; to be made whole for any lost wages
and benefits between April 30, 2007, and May 27, 2007; and any other relief
lawful and feasible under the RLA and the CBA, depending on how the
arbitrator construes the request for relief and its merits. While the merits of
Hilton's first grievance are not for us to decide, Hilton has a right to have those
claims decided by an arbitrator as the CBA provides.
IV. CONCLUSION
The June 1, 2007 discharge grievance was validly excluded from
arbitration pursuant to CBA Article 12, Section 1. The May 15, 2007 grievance,
however, was not so exempted and is therefore subject to arbitration. Any
independent state or federal law claims Hilton has against CareFlite for its
treatment of him that do not arise from the CBA and are not governed by the
RLA arbitration requirements, to the extent the district court finds that any
exist, may be considered in due course by the district court on remand. See
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Hawaiian Airlines, 512 U.S. at 258-66. For the foregoing reasons we AFFIRM
in part, REVERSE in part, and REMAND for further proceedings consistent
with this opinion.
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JENNIFER WALKER ELROD, Circuit Judge, concurring.
I concur in Judge Dennis’s ultimate conclusions that (1) the May 15, 2007
grievance is arbitrable, and (2) the June 1, 2007 grievance is not arbitrable
because it was validly excluded from arbitration pursuant to Article 12, Section
1 of the CBA. I, however, would analyze the June 1, 2007 grievance in the same
manner as did the district court—as a minor dispute arising from the
interpretation of the CBA. But because the RLA does not prohibit CareFlite and
the Union from agreeing to exclude certain minor disputes from arbitration, I
would hold that the June 1, 2007 grievance challenging Hilton’s termination is
not arbitrable. See Tex. Int’l Airlines, Inc. v. Ass’n of Flight Attendants, 667 F.2d
1169 (5th Cir. 1982) (per curiam) (affirming without opinion the district court’s
judgment that the RLA did not invalidate an agreement between an air carrier
and its employees that excluded probationary employees from utilizing the
grievance procedures to challenge a disciplinary action or discharge); see also
Tex. Int’l Airlines, Inc. v. Ass’n of Flight Attendants, 498 F. Supp. 437, 448 (S.D.
Tex. 1980).
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