[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 11, 2002
THOMAS K. KAHN
No. 01-12109 CLERK
________________________
D.C. Docket No. 00-04705-CV-JLK
JASON WHITAKER and
ALLIED PILOTS ASSOCIATION,
Plaintiffs-Appellants,
versus
AMERICAN AIRLINES, INC.,
Defendant-Appellee.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
__________________________
(March 11, 2002)
Before EDMONDSON, HULL and KRAVITCH, Circuit Judges.
KRAVITCH, Circuit Judge:
Jason Whitaker, a former employee of American Airlines (“American”), and
his union, Allied Pilots Association (“APA”), appeal the district court’s dismissal
of their claim, pursuant to the Railway Labor Act (the “RLA”), to compel
arbitration of Whitaker’s termination before a system board of adjustment. This
appeal presents the issue of whether a system board of adjustment has the
jurisdiction to hear the termination grievance of a probationary employee who
asserts no substantive rights under the collective bargaining agreement.
I. Background
Whitaker was hired as a pilot by American in August 1999, with APA as his
certified bargaining representative. American and APA previously had entered
into a collective bargaining agreement (the “Agreement”) setting out working
conditions and grievance procedures for covered employees. Section 21 of the
Agreement, entitled “Grievances, Hearing, and Appeals,” provides that pilots may
not be disciplined or discharged without investigation and written notification.
Pilots subject to adverse employment decisions are then allowed to protest the
airline’s actions by filing a grievance and hearing request. Those dissatisfied with
the results after the hearing are then entitled under the Agreement to appeal the
decision to American’s Vice President-Flight. Pilots who maintain a grievance
2
over their discipline or dismissal even after this internal appeal are then permitted,
pursuant to Section 21.D.3, to appeal for arbitration before American’s System
Board of Adjustment (the “Board of Adjustment” or “Board”). Section 21.E.2,
however, expressly limits access to these grievance procedures to tenured
employees, stating that “Nothing in this Agreement shall extend rights afforded in
this Section 21 to a pilot during his first twelve (12) months of service.”1
1
Relevant portions of Section 21, “Grievances, Hearings, and Appeals,” read as follows:
A. Grievances
1. Discipline and Discharge Grievances
a. A pilot shall not be disciplined or dismissed from the service
of the Company without an investigation and a written notification of
such action, including the precise charge or charges against the pilot. ... A
pilot may protest the Company’s action(s) by filing a grievance and a
request for a hearing of the matter in writing within thirty (30) days of the
pilot’s receipt of the notification.
***
C. Initial Hearing
1. The initial hearing shall be held by the pilot’s Base Chief Pilot, or
his designated representative ... .
***
D. Appeal Hearing
1. A decision by the Company which is unsatisfactory to the pilot
may be appealed to the Vice President-Flight.
***
3. A decision by the Company in an appeal hearing may be appealed
either to the Grievance Review Board or the System Board of
Adjustment by the Association. ...
E. General
***
2. Nothing in this Agreement shall extend rights afforded in this
Section 21 to a pilot during his first twelve (12) months of
service.
3
The RLA directs that it is the “duty of every carrier and of its employees... to
establish a board of adjustment” such as the one referred to in Section 21.
Railway Labor Act § 204, 45 U.S.C. § 184 (2001).2 In this case, the parties created
the required board in Section 23 of the Agreement. Section 23.A provides, “In
compliance with the Railway Labor Act, as amended, the parties establish the
American Airlines System Board of Adjustment (the “System Board”) for the
purpose of adjusting and deciding disputes which may arise under the terms of this
Agreement and which are properly submitted to it.” Its jurisdiction is defined in
Section 23.D as extending to “disputes between any employee covered under this
Agreement or the Association and the Company growing out of grievances, or out
of interpretation or application of any of the terms of this Agreement.”
In June 2000, while still in his twelve month probationary period, Whitaker
2
The disputes between an employee or group of employees and a carrier or
carriers by air growing out of grievances, or out of the interpretation or application
of agreements concerning rates of pay, rules, or working conditions... shall be
handled in the usual manner up to and including the chief operating officer of the
carrier designated to handle such disputes; but, failing to reach an adjustment in this
manner, the disputes may be referred by petition of the parties or by either party to
an appropriate adjustment board, as hereinafter provided, with a full statement of
the facts and supporting data bearing upon the disputes.
It shall be the duty of every carrier and of its employees, acting through
their representatives, selected in accordance with the provisions of this subchapter,
to establish a board of adjustment of jurisdiction not exceeding the jurisdiction
which may be lawfully exercised by system, group, or regional boards of
adjustment, under the authority of section 153 of this title.
Railway Labor Act § 204, 45 U.S.C. § 184 (2001).
4
received a termination letter after American received negative reviews from his
colleagues about his attitude as a crew member. Whitaker and APA
representatives sought the pilot’s reinstatement, but American upheld its decision.3
APA then demanded that American arbitrate Whitaker’s grievance before the
Board of Adjustment. In reliance on Section 21.E.2 of the Agreement, the airline
rejected the demand and claimed that, as a probationary pilot, Whitaker possessed
no Board of Adjustment arbitration rights. Whitaker individually also asked that
the Board be convened to hear his case, but American failed to respond to this
request.
Whitaker and APA jointly filed a complaint in federal district court,
claiming that American had violated section 204 of the RLA, 45 U.S.C. § 184, by
refusing to convene the Board of Adjustment and seeking a preliminary injunction
to force American to do so. American filed a motion to dismiss and for a stay of
proceedings on Appellants’ motion for preliminary injunction. The district court
granted the motion to dismiss for failure to state a claim, finding that the
Agreement with regard to probationary pilots was not inconsistent with the RLA,
and declined to issue the injunction. Whitaker and APA appeal.
3
Appellants alleged below that American refused to rehire Whitaker due to improper anti-
union animus towards the APA representatives involved in this case. The district court denied
this claim, however, and the issue has not been appealed.
5
II. Discussion
The Railway Labor Act, 45 U.S.C. § 151 et seq., originally enacted in 1926
to govern labor-employment relations in the rail industry, was designed to, among
other things, “provide for the prompt and orderly settlement of all disputes growing
out of grievances or out of the interpretation or application of collective bargaining
agreements.” 45 U.S.C. § 151a (2001). Disputes of this kind generally are
referred to as minor disputes. See e.g. Hawaiian Airlines v. Norris, 512 U.S. 246,
252-53 (1994) (distinguishing between those disputes concerning “rates of pay,
rules or working conditions,” deemed major, and those that “grow out of
grievances, or out of the interpretation or application of agreements covering rates
of pay, rules or working conditions,” denoted as minor). In 1936, Congress
extended the RLA to the then-new airline industry. See 45 U.S.C. §§ 181-188
(2001). It adopted for air carriers all of the statutory provisions already in place for
rail carriers, with the notable exception of 45 U.S.C. § 153, governing the
settlement of minor disputes. See 45 U.S.C. § 181 (2001); 45 U.S.C. § 153 (2001).
Instead, Congress enacted 45 U.S.C. § 184 to outline adjustment procedures for
minor disputes in the airline industry. The primary difference between the
schemes described in the two sections is that under 45 U.S.C. § 153, the National
Railroad Adjustment Board (the “NRAB”) exists to settle minor disputes between
6
rail workers and their employers, which alternatively can be submitted to an
adjustment board that may be created at the option of the parties, whereas under 45
U.S.C. § 184, air carrier adjustment boards are mandatory and no national board of
adjustment for minor disputes has been created.4
Appellants argue that 45 U.S.C. § 184 establishes the individual right of an
air industry employee to compel arbitration before the adjustment board
established by his union and employer. They contend that the Eleventh Circuit has
expressly recognized this right in Pyles v. United Air Lines, Inc., 79 F.3d 1046
(11th Cir. 1996), a case addressing the preemption of state law claims under the
RLA in which the court explained in a footnote why it “believed” that airline
employees have a statutory right to pursue claims before a board of adjustment
without union assistance. See id. at 1052, n.9. Relying on Third Circuit case law,
Appellants maintain that this individual statutory right of Whitaker’s would
continue to exist even if the Agreement purported to waive it because any waiver
would be void. See Capraro v. United Parcel Serv. Co., 993 F.2d 328, 336 (3d Cir.
4
A national board for the airline industry was contemplated by Congress in passing 45
U.S.C. § 184, which directs that boards of adjustment be established by agreement “pending the
establishment of a permanent National Board of Adjustment,” but its creation was to be
postponed until “in the judgment of the National Mediation Board, it shall be necessary.” 45
U.S.C. § 185 (2001). The National Mediation Board has yet to find any such necessity,
however, and the National Air Transport Board therefore has never been established.
7
1993). The court in Capraro held that if an air carrier refuses to participate in a
board of adjustment proceeding or a board of adjustment refuses to hear an
individual employee’s claim, that employee is entitled to a judicial order
compelling arbitration. See id. at 337. Appellants further draw on Congress’
“general aim [] to extend to air carriers and their employees the same benefits and
obligations available and applicable in the railroad industry,” Int’l Ass’n of
Machinists v. Cent. Airlines, Inc., 372 U.S. 682, 685 (1963), emphasizing that the
Supreme Court has found individual statutory rights for railroad employees which
“cannot be nullified merely by agreement between the carrier and the union.”
Elgin, Joliet, & E. Ry. Co. v. Burley, 325 U.S. 711, 740 n.39 (1945). See id. at
734-36 (holding that 45 U.S.C. § 153 vests in each individual rail employee the
right to share in negotiations over his grievance; to have notice of his NRAB
hearing; to be heard before the NRAB; and to bring an enforcement suit).
American, on the other hand, argues that employers and unions, although
mandated to establish a board of adjustment under 45 U.S.C. § 184, are authorized
to define the jurisdiction of that board up to the maximum of what is permitted
under 45 U.S.C. § 153, i.e., all minor disputes.5 According to the airline, the
5
Carriers and employees must “establish a board of adjustment of jurisdiction not
exceeding the jurisdiction which may be lawfully exercised by system, group, or regional boards
of adjustment, under the authority of section 153 of this title.” 45 U.S.C. § 184.
8
language of the statute permits parties to negotiate the jurisdiction to be less than
this legal maximum, and, as a consequence, any rights that an employee might
have to board of adjustment proceedings are not statutory, but rather derivative of
and defined by the collective bargaining agreement. In the instant case, American
continues, the Agreement created a system board of adjustment the jurisdiction of
which excludes grievances over the discharge of a probationary pilot, and
consequently Whitaker is not entitled to the injunction he seeks. Appellants
counter that the RLA only prohibits parties from expanding board jurisdiction
beyond that allowed for rail carrier boards of adjustment, reserving for the National
Mediation Board any major disputes that might arise.
Initially, we note that the discussion in Pyles relied upon by Appellants is
dicta. The court there never considered the situation of an individual airline
employee who attempts to convene a board of adjustment but is denied access.
Moreover, the Pyles court expressly left open the possibility that had the plaintiff
actually been refused a hearing before his airline’s board of adjustment, he might
have qualified for a futility exception to preemption. See Pyles, 79 F.3d at 1052-
53 (holding that the plaintiff was required to “make an attempt to have his case
heard [by a board of adjustment] before resorting to federal court,” and noting that
although the plaintiff suggested that his employer “would attempt to block on
9
jurisdictional grounds any action before a system board,” his statement was
“conclusory and speculative”). We comment as well that Burley, cited by
Appellants, addressed the statutory rights of railroad workers covered by a
different section of the RLA than the one at issue in the instant case. We decline to
decide, however, whether probationary employees covered by section 204 of the
RLA may lawfully be denied access to a board of adjustment under the terms of a
collective bargaining agreement or whether the Agreement here purports to deny
such access, as we find these issues unnecessary to the disposition of this case.
Instead, we rest our decision upon the fact that Whitaker’s claim over his
termination does not constitute a minor dispute within the contemplation of 45
U.S.C. § 184, and therefore is not eligible for adjustment by the Board.
In a case involving the distinction between major and minor disputes, the
Supreme Court has held that the RLA’s statutory scheme requires courts to make
the ultimate determination whether a dispute has been properly characterized by
the claimant. See Consol. Rail Corp. v. Ry. Labor Executives’ Ass’n, 491 U.S.
299, 306 (1989). Although in the case at hand we are not required to distinguish
between major and minor disputes, we nonetheless find persuasive the Court’s
reasoning that federal courts have the prerogative to characterize labor disputes
claimed under the RLA. We must first determine if the dispute at issue is a minor
10
one under the statute before concluding that 45 U.S.C. § 184 adjustment
procedures apply.
As discussed above, minor disputes are those that “relate[] either to the
meaning or proper application of a particular provision [of a collective bargaining
agreement].” Burley, 325 U.S. at 723; see also Consol. Rail, 491 U.S. at 305. Title
45 U.S.C. § 184 refers to disputes “growing out of grievances, or out of the
interpretation or application of agreements” (emphasis added), and an argument
might therefore be made that minor disputes involve a broader set of labor
grievances than simply those arising under specific provisions of a collective
bargaining agreement. This line of reasoning, however, has been foreclosed by
Supreme Court case law. See Hawaiian Airlines v. Norris, 512 U.S. 246, 254
(1994) (holding that “‘grievances,’ like disputes over ‘the interpretation or
application’ of [collective bargaining agreements], refers to disagreements over
how to give effect to the bargained-for agreement”). Accordingly, despite the use
of the disjunctive in the statute, “the most natural reading of the term ‘grievances’
in this context is as a synonym for disputes involving the application or
interpretation of a [collective bargaining agreement].” Id. at 255.
The fundamental question, then, is whether Whitaker’s dispute “involv[es]
the application or interpretation of” the Agreement. To the extent the dispute
11
centers around the jurisdiction of the Board of Adjustment to hear the grievance,
interpretation of Sections 21 and 23 of the Agreement is arguably involved. This is
insufficient, however, to grant to the Board “jurisdiction to decide its own
jurisdiction.” Air Line Pilots Ass’n, Int’l v. Delta Air Lines, Inc., 863 F.2d 87, 91
(D.C. Cir. 1988). In Air Line Pilots, a union appealed from the district court’s
grant of summary judgment to an air carrier in its action seeking to compel
arbitration of grievances under the RLA. See id. at 88. The union insisted that
federal courts should allow boards of adjustment to determine their own
jurisdiction initially, and that courts should only pass on the correctness of these
determinations after a board makes a judgment for which its authority to do so is
challenged. See id. at 91. We find the D.C. Circuit’s reasoning in rejecting this
argument persuasive:
[T]he purpose of the Board is to decide disputes arising under
the agreement. We have implied previously that arbitration is a
matter of contract in an RLA case– at least where a collective
bargaining agreement is in effect– because an issue need not be
subject to arbitration if there is ‘positive assurance that the
arbitration clause is not susceptible of an interpretation that
covers the asserted dispute.’ Northwest Airlines v. ALPA, 808
F.2d 76, 82 (D.C. Cir. 1987).
Id. at 91.
Whether or not APA and American were permitted under the RLA to give
the Board narrower jurisdiction than all minor disputes between the airline and
12
covered employees, it is clear that any dispute submitted to the Board must, at the
very least, qualify as a minor dispute, i.e., be “susceptible of an interpretation that
covers the asserted dispute.” Id.; see also Tex. Int’l Airlines, Inc. v. Ass’n of
Flight Attendants, 498 F. Supp. 437, 446-47 (S.D. Tex. 1980), aff’d, 667 F.2d
1169 (5th Cir. 1982) (finding that a federal court may determine the jurisdiction of
a board of adjustment, and that where the collective bargaining agreement at issue
“is clear and unambiguous,” it is “unnecessary for the Board to interpret the
contract”). We understand Whitaker to point to no provision of the Agreement that
he alleges American to have violated in discharging him– either in its grounds for
or the manner in which it carried out this employment decision– and therefore hold
that Appellants have not submitted for adjustment a dispute within the jurisdiction
of the Board.6 Where no minor dispute exists, we will not compel arbitration
before a board of adjustment.
Appellants stress that the RLA “reflects a strong congressional interest in
seeing that employees are not left remediless.” Pyles v. United Airlines, 79 F.3d
1046, 1052 (11th Cir. 1996). Where, as here, however, the aggrieved employee
6
Nowhere in their brief or at oral argument did Appellants point to a substantive
provision of the Agreement that was violated, nor did they deny Whitaker’s status as an at-will
employee. “In the absence of a statute or an agreement, an employer may discharge his
employee for cause or without cause, and the [RLA] does not limit the employer’s right to
discharge to instances involving cause.” Conrad v. Delta Air Lines, Inc., 494 F.2d 914, 916 (7th
Cir. 1974).
13
points to no provision of a collective bargaining agreement that has been violated
(other than the one he insists entitles him to a hearing where he has no substantive
right to claim), and additionally alleges no state law violation, the refusal to
provide that employee with a forum does not undermine this “strong congressional
interest.”7 In deciding this, we draw upon our preemption decisions holding that
“only where interpretation of a [collective bargaining agreement] is required will [a
state law] claim be preempted.” Id. at 1050; accord Pilkington v. United Airlines,
112 F.3d 1532, 1538 (11th Cir. 1997). Similarly, only where interpretation of a
collective bargaining agreement is required will a federal court compel arbitration
by a board of adjustment. We find further support in Delta Airlines, Inc. v. Airline
Pilots Ass’n, Int’l, 238 F.3d 1300, 1307 (11th Cir. 2001), a case in which we held
that an airline was entitled to seek an injunction in federal court to prevent its
pilots’ union from encouraging employees to refuse to work overtime. There we
rejected the union’s “contention that the CBA ‘arguably’ allow[ed]” its conduct,
and determined that the issue did not require arbitration before a board of
adjustment because it did not qualify as a minor dispute. See id.8
7
We do not consider whether Whitaker would be entitled to an order compelling
arbitration before the Board had he specifically pointed to a substantive provision in the
Agreement which he alleged American to have violated.
8
We recognize that our holding may be inconsistent with Capraro v. United Parcel Serv.
Co., 993 F.2d 328 (3d Cir. 1993), cited by Appellants and discussed above. We therefore note
14
Although the district court in its order relied on a 1980 Southern District of
Texas opinion for the proposition that airlines and bargaining representatives may
enter into valid agreements limiting the grievance and arbitration procedures
available to probationary pilots, see Tex. Int’l Airlines, Inc. v. Ass’n of Flight
Attendants, 498 F. Supp. 437 (S.D. Tex. 1980), aff’d 667 F.2d 1169 (5th Cir.
1982), we may affirm a decision by the district court “on any adequate ground,
even if it is other than the one on which the district court actually relied.” Parks v.
City of Warner Robbins, 43 F.3d 609, 613 (11th Cir. 1995). Because the reasons
for and manner of a probationary employee’s discharge are not within the terms of
the agreement between APA and American, there is no dispute here requiring
interpretation of the Agreement. Appellants’ grievance is accordingly not a minor
dispute and not within the jurisdiction of the Board.
AFFIRMED.
that to the extent that opinion contradicts our decision here, we reject its reasoning.
15