United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 10, 2005 Decided April 8, 2005
No. 04-7062
AIR LINE PILOTS ASSOCIATION,
APPELLANT
v.
FEDERAL EXPRESS CORPORATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(02cv01881)
Clay Warner argued the cause for appellant. With him on
the briefs was Marta Wagner.
Thomas E. Reinert, Jr. argued the cause for appellee. With
him on the brief was Adrienne A. Brown.
Before: RANDOLPH, TATEL, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: The union representing Federal
Express pilots -- the Air Line Pilots Association -- brought an
action to compel the company to arbitrate a grievance. On
cross-motions for summary judgment the district court ruled in
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FedEx’s favor, holding that the grievance was not arbitrable.
310 F. Supp. 2d 247 (D.D.C. 2004). The union’s appeal is on
the grounds that the district court misconstrued the collective
bargaining agreement and misunderstood the nature of the
grievance.
The FedEx Pilots Association, which represented the pilots
until it merged with their current union in 2002, entered into a
collective bargaining agreement with the company in 1999. As
the Railway Labor Act required, 45 U.S.C. § 184, the agreement
contained grievance and arbitration provisions. Section 20A of
the agreement defined “grievances” as “disputes growing out of
the interpretation or application of agreements between the
parties hereto concerning rates of pay, rules or working
conditions.” Section 20A also stated: “Any pilot, group of pilots
covered by this Agreement or the Association on behalf of such
pilot(s) who has a grievance concerning any action of the
Company affecting the pilot(s), except matters involving
discipline, shall have such grievance handled in accordance with
the following procedures,” which are then spelled out in detail.
If a grievance is not resolved to the union’s satisfaction, the
union may take it to arbitration before the Federal Express
Pilots’ System Board of Adjustment.
The grievance FedEx refused to arbitrate dealt with
“jumpseating,” the practice by which offline pilots travel
without charge in available seats in an aircraft’s cockpit,
passenger cabin or cargo compartment. FedEx pilots had the
option of jumpseating on FedEx aircraft. They also could
jumpseat on other aircraft because of reciprocal jumpseat
agreements between FedEx and other carriers. In light of the
fact that many FedEx pilots reported to work far from their
homes, they valued jumpseating.
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The FedEx collective bargaining agreement addressed the
subject: “To the extent permitted by law or regulation, pilots
shall be given access to Company jumpseats on terms no less
favorable than those provided in the Company jumpseat policy
effective January 25, 1998 and included in the [Pilot Benefit
Book]. Procedures for booking and other provisions governing
access to Company jumpseats shall be as provided in that
policy.” The Pilot Benefit Book mentioned in this provision
stated that: “FedEx management, in conjunction with the FPA
Jumpseat Committee, will enter into reciprocal jumpseat
agreements with other . . . carriers on behalf of FedEx flight
crew members. FPA Jumpseat Committee shall have the
opportunity to recommend additions, deletions or changes to the
reciprocal agreements.”
FedEx had been abiding by its reciprocal jumpseat
agreements with other carriers. Then, shortly after September
11, 2001, federal security directives prohibited offline
jumpseaters from using cockpit seats. Other carriers complied
with the directives but still permitted offline pilots to jumpseat
in passenger cabins and cargo compartments. FedEx did not. It
decided that for security reasons, no pilot other than one
working for FedEx could jumpseat on FedEx airplanes. As a
result, other carriers began denying FedEx pilots reciprocal
jumpseat privileges on their aircraft.
In February 2002, the FedEx Pilots Association filed a
grievance “on behalf of all FedEx pilots,” complaining that the
company’s position on jumpseating conflicted with the
collective bargaining agreement and that its “decision to
unilaterally change the decades of past practice of allowing
offline pilots access to Company jumpseats places the continued
existence of our reciprocal jumpseat agreements in jeopardy.”
FedEx refused to process the grievance on the ground that the
“inability of non-Federal Express employees to use our
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jumpseats is in no way related to the terms and conditions of
employment” of the FedEx pilots.
Under the collective bargaining agreement, a refusal to
process a grievance is considered a denial of the grievance. The
FedEx Pilots Association therefore appealed to the System
Board. FedEx responded in a letter stating that the System
Board had no jurisdiction because the “inability of non-Federal
Express employees to use Company jumpseats has in no way
affected the pilots covered by the contract. Such jumpseat
access has been a benefit only to individuals not employed by
Federal Express and not represented by [the union], and the
denial of jumpseats to those people is not a subject covered by
the collective bargaining agreement or by the” Railway Labor
Act.
In July 2002, the arbitrator assigned to the matter ruled that
the grievance was within the jurisdiction of the System Board.
Citing Supreme Court precedent, he had little “doubt that the
jumpseat issue grew out of the grievances concerning the
interpretation and application of the terms of the Agreement and
a long-standing past practice and thereby fall within the terms of
the Agreement. Thus, applying the presumption mandated by
the Supreme Court, I have concluded that the System Board has
jurisdiction to hear and decide this dispute.” The arbitrator
issued his decision “with the full knowledge that any ruling I
make is not final and binding and that court action is required
for enforcement if either party refuses to abide by the ruling.”
By this time, the Air Line Pilots Association had taken over
as the union representing the FedEx pilots. When FedEx refused
to accept the arbitrator’s decision, the union filed an action
seeking to compel the company to arbitrate. On cross-motions
for summary judgment, the district court ruled in favor of
FedEx. It very much appears -- although we cannot be certain --
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that the court believed the union was not the collective
bargaining representative of the FedEx pilots and that it was
pursuing the grievance on behalf of non-FedEx pilots. After
reviewing provisions in the agreement the court concluded that
it “only covers pilots employed by FedEx.” 310 F. Supp. 2d at
250. The court then said: “the only conclusion to be drawn is
that the plaintiff, an association representing non-FedEx pilots,
cannot place a properly arbitrable issue before the grievance
board,” to which the court added “there simply is no colorable
argument that the plaintiff is covered by the subject matter of the
agreement.” Id.
District courts may grant summary judgment without
issuing an opinion. When they do explain their action, their
explanation is entitled to respectful consideration. Still,
appellate review of orders granting summary judgment is de
novo, at least when the order does not rest on a determination of
ultimate facts. See Troy Corp. v. Browner, 120 F.3d 277, 281
(D.C. Cir. 1997); W ILLIAM W. SCHWARZER ET AL., THE
ANALYSIS AND DECISION OF SUMMARY JUDGMENT MOTIONS 79-
81(Federal Judicial Center 1991). Here, our independent
examination of the case leads us to a conclusion opposed to the
district court’s.
We may prepare the ground this way. Section 20A of the
contract permits only FedEx pilots and their collective
bargaining representative to pursue grievances. If we agreed
that the union was prosecuting this grievance on behalf of non-
FedEx pilots we would therefore affirm. But there is no room
for such an argument. True enough, the Air Line Pilots
Association represents pilots working for companies other than
FedEx. True also, non-FedEx pilots would benefit if the
arbitration went in the union’s favor -- they could resume
jumpseating on FedEx planes. But neither circumstance
changes the fact that the union filing this grievance did so on
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behalf of FedEx pilots in order to preserve the benefits they
received from the reciprocal jumpseat agreements. We know
the grievance was filed on behalf of FedEx pilots because, at the
time of filing, their exclusive bargaining agent was the FedEx
Pilots Association, which represented only them. We know this
as well from the grievance itself: “This grievance is filed by the
[FedEx Pilots Association] on behalf of all FedEx pilots and the
[FedEx Pilots Association]”; and “this grievance” seeks “to
correct management’s manner of dealing with the FedEx pilots
and [the FedEx Pilots Association] with regard to jumpseat
issues . . . .” We also must assume that a favorable resolution of
the grievance would promote the interests of the FedEx pilots
because they would again enjoy the privilege of traveling free of
charge on the aircraft of other carriers who had reciprocal
jumpseat agreements with FedEx. We must assume this because
the union said so in its uncontested statement of material facts
not in dispute. That the union’s success in arbitration might also
assist employees of other companies cannot make a difference
on this question. No one would suppose that a grievance
protesting a manufacturing company’s decision to cease
covering its employees with a medical insurance plan should be
viewed as a grievance on behalf of the insurance company’s
employees who administered the plan.
This brings us to four well-settled points of the federal law
governing the arbitrability of labor disputes. One, “‘arbitration
is a matter of contract and a party cannot be required to submit
to arbitration any dispute which he has not agreed so to
submit.’” AT&T Technologies, Inc. v. Communications Workers
of Am., 475 U.S. 643, 648 (1986), quoting United Steelworkers
v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960).
Two, “[u]nless the parties clearly and unmistakably provide
otherwise, the question . . . whether the parties agreed to
arbitrate is to be decided by the court, not the arbitrator.” 475
U.S. at 649. Three, “in deciding whether the parties have agreed
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to submit a particular grievance to arbitration, a court is not to
rule on the potential merits of the underlying claims.” Id. And
four, an “order to arbitrate the particular grievance should not be
denied unless it may be said with positive assurance that the
arbitration clause is not susceptible of an interpretation that
covers the asserted dispute. Doubts should be resolved in favor
of coverage.” Warrior & Gulf Navigation, 363 U.S. at 582-83.
We have already explained why we are satisfied that a
proper party, as defined in the agreement, brought this grievance
and why a proper party is pursuing it. We are also convinced
that the grievance concerns a proper subject, as set forth in
Section 20A of the agreement, quoted earlier. The jumpseat
controversy grows out of a dispute over the meaning of
contractual terms, among which is Section 26J.1, also quoted
above. Whether Section 26J.1’ s reference to the Pilot Benefit
Book had the effect of making the jumpseat provisions of the
Book part of the collective bargaining agreement, as the union
maintains, is one of the issues for the arbitrator. The
agreement’s provision governing arbitration, Section 21A, gives
the System Board “jurisdiction over disputes between pilots or
the Association and the Company growing out of grievances, or
out of the interpretation or application of any of the terms of the
Agreement . . . .” For the reasons already stated, we are far from
positively convinced that this provision cannot be interpreted to
cover the jumpseating dispute. No more is needed to order
FedEx to arbitrate.
The judgment of the district court is reversed, and the case
is remanded for the entry of an order compelling FedEx to
arbitrate the jumpseat grievance.
So ordered.