Mitchell v. Continental Airlines

United States Court of Appeals
Fifth Circuit
REVISED MARCH 29, 2007
FILED
IN THE UNITED STATES COURT OF APPEALS March 7, 2007
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
_____________________ Clerk

No. 05-20791
_____________________

MARILYN MITCHELL; KEVIN BALE;
SUSAN BOORSTEIN,

Plaintiffs-Appellants
v.

CONTINENTAL AIRLINES, INC.;
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS,
Defendants-Appellees

----------------------
Appeal from the United States District Court
for the Southern District of Texas
----------------------
Before KING, WIENER, and CLEMENT, Circuit Judges.

WIENER, Circuit Judge:

Plaintiffs-Appellants Marilyn Mitchell, Kevin Bale, and

Susan Boorstein appeal the district court’s grant of summary

judgment, dismissing without prejudice their petition to vacate

an arbitration award under the Railway Labor Act (“RLA”).1 For

the following reasons, we affirm the district court, concluding

that Boorstein failed to exhaust her contractually-created

procedural remedies and that Mitchell and Bale lack standing to

bring a petition under the RLA.

1
45 U.S.C. §§ 151 et seq.
 I. FACTS AND PROCEEDINGS

A. Background

The plaintiffs are flight attendants for Defendant-Appellee

Continental Airlines, Inc. (“Continental”). As such, their

employment is governed by a collective bargaining agreement

(“CBA”) between Continental and Defendant-Appellee International

Association of Machinists and Aerospace Workers (“IAM”). The CBA

provides a system of procedures for the resolution of employment

grievances, ultimately requiring that unresolved grievances be

resolved by final and binding arbitration before a Systems Board

of Adjustment (“the Board”), as is permitted by the RLA. In

addition, the CBA specifies that the IAM shall serve as the

exclusive bargaining representative for all flight attendants.

Under the CBA, Continental’s flight attendants accrue

various types of seniority, each of which is classified as either

competitive or non-competitive. Continental is required to post

competitive seniority dates biennially. Flight attendants have

thirty days after each such posting to challenge the accuracy.

Competitive seniority is not at issue in this case; non-

competitive seniority is, though.

Continental is not required to post non-competitive

seniority dates for its flight attendants. Non-competitive

rankings include pay seniority, vacation seniority, and jump-seat

2
and pass-riding seniority. Instead of posting lists of non-

competitive seniority periodically, they are communicated in

other, more discrete ways.

B. Boorstein

Boorstein had been employed as a Continental flight

attendant since November 1968, when in 1996, she learned that her

jump-seat seniority date had been changed from her date of hire

to a subsequent date in 1971. She also learned that her company

service date had been unfavorably changed when, on her thirtieth

anniversary with Continental, she received a cake of the type

customarily given to flight attendants with only twenty years of

service. Boorstein alleges that, after she inquired into the

unfavorable adjustments, her seniority status was again adjusted

adversely. Boorstein never filed a grievance against Continental

and never sought to resolve her dispute through arbitration

before the Board.

C. Mitchell

Mitchell began her employment with Continental in January

1969 and began flying the next month. In 1996, Mitchell’s pass-

riding seniority date was retroactively adjusted without her

knowledge as a result of company-offered leave that she had taken

3
years earlier.2 The next year, Mitchell also discovered that her

vacation seniority date was different and less advantageous than

previously indicated. Throughout 1997 and 1998, Mitchell

repeatedly contacted and questioned Continental personnel

regarding the accuracy of her seniority dates. She alleges that

her questioning led to even greater unfavorable adjustments.

Unable to resolve her inquiries satisfactorily, Mitchell

contacted IAM in 1999. After prolonged discussions, IAM

eventually permitted Mitchell to file a grievance against

Continental, in which she contended that her non-competitive

seniority dates had been subjected to unfair, adverse

adjustments. That was in May 2000. Her grievance was denied

following a step-one and a step-two hearing.

D. Bale

Bale joined Continental as a flight attendant in July 1987.

In 1997, he discovered that his vacation seniority date was less

advantageous than his records indicated it should have been.

2
Company-offered leave is optional leave offered by Continental to
its flight attendants. It is offered to those attendants with
higher seniority in lieu of leave being forced on junior flight
attendants (i.e., furlough status), thereby alleviating the effect
of overstaffing and base closings. This is advantageous to
Continental, because its payroll expense is reduced by having lower
paid flight attendants on duty, as Continental does not have to pay
its senior flight attendants who are on company-offered leave and
does not have to pay furlough pay to junior flight attendants who
would otherwise be on furlough status.

4
Bale periodically inquired into the discrepancy between 1998 and

2000. He was eventually informed that his vacation seniority

date had been adjusted for company-offered leaves that he had

taken between 1991 and 1995.

In August 2000, Bale filed a grievance, complaining of

unfair and unequal adjustment of seniority. In June 2001, Bale

filed a second grievance, complaining that Continental violated

the CBA by including managerial employees at the level of

director or above in the System Seniority List. Both of these

grievances were denied following a step-one and a step-two

hearing.

E. Involvement of IAM

A stamped, and then signed and dated notice appears in the

upper, right-hand corner of both Mitchell’s and Bales’

grievances, in which each attendant acknowledged: “I hereby

authorize the International Association of Machinists, with full

power of attorney, to represent me in all stages of the Grievance

Procedure in the presenting and settling of this grievance.”

After Mitchell’s and Bale’s grievances were denied by

Continental, they were referred to arbitration before the Board,

which consisted of one IAM representative, one Continental

representative, and one neutral chairperson. As the IAM had

previously learned that several other flight attendants’ non-

5
competitive seniority dates had been unfavorably adjusted without

their knowledge, it presented with those of Mitchell and Bale the

grievances of four similarly-situated flight attendants in a two-

day arbitration hearing before the Board in February 2002.

Prior to this hearing being held, Mitchell and Bale had

received numerous notices of the hearing dates and locations, the

hearing date having been postponed and rescheduled numerous

times. In addition, both Mitchell and Bale met with IAM

representatives in 2001, and Mitchell attended a second

preparatory meeting in February 2002.

When the hearing was finally convened in February 2002,

Mitchell participated in person and Bale participated by

telephone. Both Mitchell and Bale allege that, immediately

before the hearing, IAM informed them that it would not be

representing them, so they would have to represent themselves.

Both claim that they thus were “ambushed” into putting on their

own, admittedly deficient, pro se case.

In May 2002, the Board rendered its arbitral decision and

award (“the Award”). The Board first decided that it lacked

jurisdiction over matters arising before the date that the CBA

was formed, April 1, 2000. It then concluded that Continental

had failed to maintain “a careful record of when an individual

returned to work from a leave of absence for purposes of his or

6
her seniority” and that “[a]djustments [were] made for periods of

inactivity taken by some individuals when they returned to work,

but not for others.” After acknowledging Continental’s failure

to maintain careful records and declaring that it was unable to

“examine all of the individual employment records of the [more

than 9,000] flight attendants employed by Continental,” the Board

prescribed the following procedure to be used by flight

attendants retrospectively challenging their seniority dates and

for Continental’s use in making future adjustments:

[F]or retroactive adjustments that occurred within the
last two years, flight attendants may protest such
adjustments in their seniority dates which occurred
more than a year after the event which triggered the
adjustment. They may do so within 30 days of the date
on which this award is rendered, and the parties shall
have the joint obligation of informing all flight
attendants of this decision. . . . For the future, the
company shall have a period of one year from the date
on which they first were notified by the Company . . .
to file a protest.

In the Award, the Board also (1) decided that its ruling

would apply to Bale’s grievance and provided the IAM and

Continental an opportunity to resolve his grievance amicably

based on the rules set forth in the Award; (2) denied as untimely

those grievances relating to individuals holding managerial

positions at the director level and higher as untimely; and (3)

denied Mitchell’s grievances “because the adjustments were made

contemporaneously and in order to retain seniority one must be on

7
the list of Company employees and to accrue seniority one must be

in the active service of the Company and be receiving pay for

such service.” Finally, the Board retained jurisdiction over

“all disputes arising based upon this decision including

questions regarding remedy.”

Continental and IAM then issued a joint notice to all flight

attendants, informing them of the existence of the Award, its

terms and conditions, and the deadline for filing claims pursuant

to the Award. In October of that year, after negotiations

between Bale and Continental proved unsuccessful, the Board

issued a second arbitral award, finding that the seniority

adjustments of which Bale complained “were actually made in

September 1998, outside the timeframe for claims that can be

submitted under the [Award].” The Board, therefore, denied

Bale’s grievance.

In May 2004, the plaintiffs filed a petition for review of

the Award in the Southern District of Florida, requesting that

the district court (1) enjoin Continental from implementing the

Award, (2) vacate the Award, and (3) remand the matter to the

Board. The plaintiffs contended that the Award failed to comply

with and conform to the requirements of the RLA and that it

violated their constitutional right to due process. In August

2004, the Southern District of Florida transferred the action to

8
the District Court for the Southern District of Texas, from which

this appeal is taken.

In August 2005, the district court, treating the plaintiffs’

petition for review and defendants’ opposition to it as cross-

motions for summary judgment, denied the plaintiffs’ petition for

review and entered judgment in favor of Continental and IAM,

concluding that the plaintiffs’ failure to allege a breach of

IAM’s duty of fair representation left them without standing. In

addition, the district court dismissed the plaintiffs’

constitutional due process claims, ruling that the plaintiffs had

failed to state a claim for which relief could be granted. The

plaintiffs timely filed a notice of appeal.

II. LAW AND ANALYSIS

A. Standard of Review

We review a grant of summary judgment de novo, applying the

same standard as the district court.3 The RLA regulates labor

disputes between airline carriers and their employees by

establishing mandatory procedures for the resolution of disputes,

both major and minor, to prevent the commercial interruptions

that might otherwise result.4

3
Riverwood Int’l Corp. v. Employers Ins. of Wausau, 420 F.3d 378,
382 (5th Cir. 2005).
4
Cont’l Airlines, Inc. v. Int’l Bhd. Of Teamsters, 391 F.3d 613,
616-17 (5th Cir. 2004).

9
 The RLA distinguishes disputes by whether they seek to

create contractual rights or to enforce them.5 A major dispute

concerns the formation of a CBA, which arises when a CBA is not

in place or when a party seeks to change the terms of a CBA.6 A

minor dispute concerns grievances or the interpretation or

application of agreements covering rates of pay, rules, or

working conditions.7 Pursuant to the RLA, minor disputes must be

resolved through a compulsory, binding arbitration procedure

before an adjustment board. These arbitral procedures may be

established by the union and the employer through their CBA.8

None questions that the disputes underlying this appeal are minor

ones under the RLA.

Prior to filing a RLA lawsuit in federal court, employees

claiming a violation of their CBA-established rights ordinarily

must first exhaust the non-judicial remedies specified in their

CBA.9 An employee may, however, bring suit without previously

exhausting these remedies if (1) the union wrongfully refuses to

5
Consol. Rail Corp. v. Ry. Labor Executives’ Ass’n, 491 U.S. 299,
302 (1989).
6
Id.
7
Id. at 303.
8
Id.
9
Morales v. S. Pac. Transp. Co., 894 F.2d 743, 745 (5th Cir.
1990).

10
process the employee’s grievance, thereby violating its duty of

fair representation; (2) the employer’s conduct amounts to a

repudiation of the specified contractual, remedial procedures; or

(3) exhaustion of the contractual remedies would be futile.10

When an RLA lawsuit arising from a minor dispute is properly

before us, we will only review an arbitral decision and award on

one of three narrow and exclusive grounds: (1) whether the Board

failed to comply with the RLA’s requirements; (2) whether the

Board failed to confine itself to matters within the scope of its

jurisdiction; and (3) whether the Board’s decision was the result

of fraud or corruption.11 We have recognized a fourth, implied

ground for review: whether an award was rendered in violation of

a party’s due process rights.12 Absent one of these grounds, an

adjustment board’s findings and orders are binding and conclusive

as to the parties.13 Thus, unless we find that an adjustment

board’s arbitral award is “wholly baseless and completely without

10
Rabalais v. Dresser Indus., Inc., 566 F.2d 518, 519 (5th Cir.
1978).
11
Cont’l Airlines, 391 F.3d at 617.
12
Bhd. of Locomotive Eng’rs v. St. Louis Sw. Ry. Co., 757 F.2d 656,
661 (5th Cir. 1985).
13
E. Airlines, Inc. v. Transp. Workers Union, 580 F.2d 169, 172
(5th Cir. 1978).

11
reason,” we must affirm the Board’s decision.14

B. Merits

On appeal, the plaintiffs contend that the district court

erroneously granted summary judgment in favor of Continental and

IAM (collectively, “the defendants”), because (1) the plaintiffs

do have standing to bring an action under the RLA; (2) the

plaintiffs were unconstitutionally denied due process, as they

were not provided sufficient notice, and the Board failed to

maintain a record of the arbitral hearing; and (3) the Award was

“wholly baseless and completely without reason.” The plaintiffs

explicitly disavow any claim that the IAM breached its duty of

fair representation.

In contrast, the defendants urge us to affirm the district

court, because (1) Boorstein failed to exhaust the requisite

arbitral remedies under the CBA; (2) all of the plaintiffs lack

standing to bring an RLA action; (3) the plaintiffs’

constitutional due-process rights were not violated; and (4) the

Award was not “wholly baseless and completely without reason.”

i. Boorstein’s Claim

On appeal, Continental argues that Boorstein’s claim is not

viable because of her failure to exhaust her non-judicial

remedies under the CBA. We agree.

14
Id.

12
 It is undisputed that Boorstein not only failed to file a

grievance regarding the unfavorable adjustment of her non-

competitive seniority, but, despite receiving notice of her right

to do so, she failed to request review and correction of any

adjustment within the thirty-day period made available to all

flight attendants by the Board’s award, all in derogation of the

CBA. Boorstein does not offer, and our own review fails to

reveal, any reason why her failure to pursue the appropriate

remedies under the CBA should be excused.

In addition, the Board was not required to provide Boorstein

with personal notice of the February 2002 hearing. As a flight

attendant and thus a subscriber to the CBA, Boorstein had

authorized the IAM to act exclusively on her behalf. Thus, as

the district court correctly recognized, notice to the IAM ——

Boorstein’s representative —— constituted adequate notice to

Boorstein and all similarly-situated employees who had not filed

individual grievances.15 We affirm the district court’s

dismissal of Boorstein’s claims.

ii. Mitchell’s and Bale’s Claims

In McNair v. United States Postal Service, we held that,

15
See Bhd. of Ry., Airline, & S.S. Clerks v. St. Louis S.W. Ry.
Co., 676 F.2d 132, 136 (5th Cir. 1982).

13
under the Labor Management Relations Act (“LMRA”),16 which was

made applicable by the Postal Reorganization Act17:

When a collective bargaining agreement establishes a
mandatory, binding grievance procedure and gives the
union the exclusive right to pursue claims on behalf of
aggrieved employees, the results obtained by the union
are normally conclusive of the employees’ rights under
the agreement. This means, of course, that an
aggrieved worker whose employment is governed by such
an agreement normally lacks standing independently . .
. to attack in court the results of the grievance
process. . . .

These rules are not, however, without exception.
It is established that, if the union has breached its
duty of fair representation, by arbitrarily refusing to
pursue a claim through the grievance process or by
doing so in a perfunctory or otherwise inadequate
manner, an aggrieved employee is not foreclosed by the
results of the grievance process. He may sue his
employer or his union or both but, in order to recover,
he must prove that the union breached its duty of fair
representation and that the employer breached the
collective bargaining agreement.18

As we explained in Acuff v. United Papermakers & Paperworkers,

which was decided under the National Labor Relations Act

(“NLRA”),19 this reality is necessary to effectuate the purposes

behind federal labor statutes, which require that the interests

of particular individuals be subordinated to the interests of the

16
29 U.S.C. §§ 141 et seq.
17
39 U.S.C. § 1209.
18
768 F.2d 730, 735 (5th Cir. 1985).
19
29 U.S.C. §§ 151 et seq.

14
group at the contract-negotiation stage and beyond.20 If an

employee could compel arbitration of a grievance without his

union’s blessings, a CBA’s contractual conflict-resolution

procedures would be substantially undermined, “thus destroying

the employer’s confidence in the union’s authority and returning

the individual grievant to the vagaries of independent and

unsystematic negotiation.”21 The same can be said of an

employee’s ability to seek judicial review of an arbitral award,

after being abandoned by his union.22

Here, the plaintiffs recognize our decisions in McNair and

Acuff and do not dispute their holdings, agreeing that an

individual employee lacks standing to seek review of an arbitral

award under the LMRA and NLRA, except that an employee may bring

a claim that the union breached its duty of fair representation.

Rather, the plaintiffs contend that our holdings in McNair and

Acuff are limited to LMRA and NLRA claims; so they argue that

they are not barred from bringing claims under the RLA. The

plaintiffs, however, offer no support or reasoning for why claims

grounded in the RLA should be treated differently from claims

under the LMRA or the NLRA, other than their transparent

20
404 F.2d 169, 171 (5th Cir.1969).
21
Vaca v. Sipes, 386 U.S. 171, 191 (1967).
22
McNair, 768 F.2d at 735.

15
acronymic differences or location within the United States Code.

Indeed, we see the plaintiffs’ argument as constituting a

distinction without difference. Regardless of whether a CBA is

established under the LMRA, NLRA, or RLA, its existence is

premised on effectuating a key purpose behind federal labor

statutes, viz., placing the interests of the group ahead of the

interests of the individual employees. As we have previously

recognized, it would be “paradoxical in the extreme” if a union

that is vested with the exclusive authority to bring an

employment grievance and pursue it up to and through binding

arbitration were not likewise vested with the exclusive

responsibility to instigate and prosecute a review of an arbitral

award in court.23 Thus, for the same reasons articulated in

McNair and Acuff, we conclude that, when a CBA formed pursuant to

the RLA establishes a mandatory, binding grievance procedure and

vests the union with the exclusive right to pursue claims on

behalf of aggrieved employees, an aggrieved employee whose

employment is governed by the CBA lacks standing to attack the

results of the grievance process in court —— the sole exception

being the authorization of an aggrieved employee to bring an

23
Acuff, 404 F.2d at 171.

16
unfair representation claim.24

Here, the plaintiffs expressly disavowed any claim that IAM

breached its duty of fair representation. Moreover, the CBA

explicitly establishes that the IAM shall represent all flight

attendants in grievance procedures. Both Mitchell and Bale

specifically bestowed on the IAM (and never revoked) full power

of attorney to represent them at all stages of the grievance

procedure. We therefore affirm the district court’s conclusion

that Mitchell and Bale lacked standing to petition for review of

the Award.25

24
Contra McQuestion v. N.J. Transit Rail Operations, 892 F.2d 352,
354-55 (3d Cir. 1990) (concluding that the plain language of 45
U.S.C. § 153 First (q) provides individual employees with uniquely
individual grievances standing to bring in federal court a petition
for review of a arbitral hearing initiated pursuant to the RLA).
Unlike the underlying arbitral hearing here, which was brought by
the IAM on behalf of all Continental flight attendants, the
arbitration in McQuestion was “conducted solely to resolve
appellants’ uniquely individual grievance,” such that the two
plaintiffs/employees in McQuestion were the “‘real parties in
interest.’” Id. at 354 (quoting McQuestion v. N.J. Transit Rail
Operations, No. 88-4037, slip op. at 10 (D.N.J. May 12, 1989)). We
do not foreclose and need not decide today whether an individual
employee may ever bring such “uniquely individual claims,”
rendering him the “real party in interest,” such that § 153 First
(q) provides him standing to bring an RLA claim. Rather, under the
facts presented here and those of our precedent, an aggrieved
employee will generally lack standing to bring an RLA action.
25
As we have concluded that Boorstein failed to exhaust her CBA-
created procedural remedies and that Mitchell and Bale lack
standing to bring a petition for review under the RLA, we need not
reach the plaintiffs’ constitutional due-process claims or their
contention that the Award was “wholly baseless and completely
without reason.”

17
 III. CONCLUSION

Today, we logically extend our holdings in McNair and Acuff

to RLA cases, concluding that when a CBA that is formed pursuant

to the RLA establishes a mandatory, binding grievance procedure

and gives the union the exclusive right to pursue claims on

behalf of aggrieved employees, one whose employment is governed

by the CBA lacks standing to attack the results of the grievance

process in court, except only that an employee has standing to

bring a claim of unfair representation. We also acknowledge and

apply our precedent that requires an employee to exhaust his

procedural remedies under a CBA before commencing a RLA lawsuit.

Based on the applicable law and our extensive review of the

parties’ briefs and the record on appeal, we conclude that the

district court did not commit any error. Accordingly, we affirm

the summary judgment of the district court in favor of the

defendants.

AFFIRMED.

18