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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MICHAEL S. MCFARLAND, et al.,
Plaintiffs,
V.
ALLIED PILOTS ASSOCIATION, et al.,
Defendants.
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CIVIL ACTION NO. 3: 03-CV-0984-B
ECF
MEMORANDUM ORDER
Before the Court are Plaintiffs’ Rule 56 Motion for Summary Judgment (doc. 47), Defendant
American Airlines’ Cross-Motion for Summary Judgment (doc. 58), and Defendant Allied Pilots
Association’s Cross-Motion for Summary Judgment (doc. 61). Because the Court finds that Plaintiffs
are entitled to present their grievance to a system board of adjustment, but not solely to a neutral
arbitrator, the Court GRANTS IN PART and DENIES IN PART all three motions. The Court
does not reach the issue of whether Plaintiffs’ hearing before the Joint Merger Committee violated
their due process rights.
I. BACKGROUND FACTS
This case arises out of a modification to the collective bargaining agreement between
Defendant American Airlines, Inc. (“AA”) and Defendant Allied Pilots Association (the “APA”),
the certified bargaining representative for AA employees in the craft or class of airline pilots. The
relevant collective bargaining agreement (“CBA”) between Defendants became effective on May 5,
1997. (AA App. p. 21) In compliance with the Railway Labor Act, the CBA established a System
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Board of Adjustment (“SBOA”) to hear all disputes by employees, the APA, and AA over the
“interpretation or application” of any of the terms of the CBA. (AA App. pp. 143-45) The SBOA
was to be comprised of two individuals appointed by the APA, two individuals appointed by AA, and
a mutually agreed upon arbitrator. (Id.)
In April 2001, AA acquired the assets of Trans World Airlines, Inc. (“TWA”) through
bankruptcy. (APA App. p. 2) At that time, the TWA pilots’ certified bargaining representative was
the Air Line Pilots Association (“ALPA”). (AA App. p. 2) In July 2001, the APA and AA executed
a Transition Agreement to facilitate the integration of the TWA pilots with the AA pilots. (Id. at
pp. 327-41) On November 8, 2001, the APA and AA executed Supplement CC, which took effect
on April 3, 2002 when the National Mediation Board certified the APA as the exclusive bargaining
representative for TWA pilots. (APA App. pp. 3-4) Supplement CC modified the original CBA and
contained several fence provisions under which a number of pilot positions were reserved for former
TWA pilots who were domiciled at the St. Louis station (“STL”). (AA App. pp. 7-20)
On July 2, 2002, AA issued a letter (the “July 2 letter”) to its pilots informing them that it
would be forced to furlough more than 100 ex-TWA pilots at STL in order to come into compliance
with Supplement CC. (Pls. App. pp. 24-25) Plaintiffs Michael S. McFarland, Charles E. Long, and
Howard B. Hollander (“Plaintiffs”), represented by AA pilot Peter Brady, grieved the interpretation
and application of Supplement CC as found in the July 2 letter.1 (APA App. p. 151; Pls. App. p. 46)
Plaintiffs, who are all ex-TWA pilots domiciled at STL, assert that the grievance was filed on behalf
of the approximately 103 ex-TWA pilots who were notified of and subject to the furlough. (APA
1
Under the CBA, a pilot is permitted to initiate a grievance on his own and may select a
representative other than the APA to represent him at the grievance hearings. (APA App. pp. 144)
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App. p. 151; Pls. App. p. 46) Plaintiffs went through the grievance process at their own expense and
with their own representation.
Plaintiffs’ grievance was presented to the Joint Merger Committee (“JMC”). (Pls. App. p. 48)
The JMC was created by Supplement CC to “resolve all disputes arising from the interpretation,
application, and implementation of...Supplement CC.” (AA App. pp. 19-20) The JMC was
comprised to two representatives appointed by AA and two appointed by the APA. (Id.) Under
Supplement CC, if the members of the JMC deadlocked on the grievance, the grievance would then
be heard by the SBOA, otherwise, the JMC’s decision was final. (Id.) Plaintiffs protested the hearing
of their grievance before the JMC, instead believing it should be heard by the SBOA. (Pls. App. p.
48)
The APA representatives on the JMC were Edwin C. White, Jr., an AA pilot and Chairman
of the APA’s Mergers and Acquisitions Committee and Chairman of the APA’s Negotiating
Committee, and Captain Keith O’Leary, a former TWA pilot. (AA App. p. 6) The AA
representatives were Mark Burdette, AA’s Managing Director of Employee Relations, and Captain
Eric Lewis, AA’s Chief Pilot for Crew Relations. (Id.) White was a drafter and signatory of
Supplement CC, and Burdette and Lewis helped negotiate Supplement CC on behalf of AA. (APA
App. p. 4)
The JMC heard Plaintiffs’ grievance on January 20, 2003. (Id. at p. 6) According to
Plaintiffs, they were not advised of or permitted the benefit of counsel in front of the JMC and did
not have subpoena power to compel witnesses or documents; however, the APA claims that Plaintiffs
were given a full and fair opportunity to present evidence and argument in support of their grievance.
(APA App. p. 6; Pls. App. p. 50) Plaintiffs further contend there was no testimony, transcript, or
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right of cross-examination. (Pls. App. p. 50) Finally, Plaintiffs claim that the 4-member panel
included individuals who were not neutral and had shown prior bias to Plaintiffs’ position. (Id. at
p. 49)
The JMC issued a decision rejecting Plaintiffs’ grievance on February 20, 2003 by a vote of
4-0. (APA App. pp. 120-25) On February 25, 2003, Plaintiffs attempted to appeal the decision of
the JMC to the SBOA, as well as to a neutral arbitrator; however, they were denied a hearing,
because the JMC had not deadlocked. (Id. at pp. 126, 152)
On February 27, 2003, the APA and AA executed a modification of Supplement CC, which
the APA contends eliminated the interpretation that had prompted Plaintiffs’ grievance. (Id. at pp.
127-31) It is undisputed that Plaintiffs were never furloughed, although there is a question whether
any ex-TWA pilots were furloughed as a result of the July 2 letter.
II. PROCEDURAL HISTORY
Following denial of their request to appear before the SBOA, Plaintiffs filed suit against AA
and the APA on May 9, 2003. Plaintiffs’ claims, as described in their First Amended Complaint,
included: (1) violation of Plaintiffs’ statutory right to proceed before an SBOA under 45 U.S.C. §
184; (2) violation of the duty of fair representation; (3) violation of the collective bargaining
agreement; and (4) a request to vacate the decision of the JMC for failure to give Plaintiffs due
process.2 AA and the APA filed Motions to Dismiss. In a Memorandum Opinion and Order, dated
December 15, 2003, the Honorable Sidney A. Fitzwater granted in part and denied in part
Defendants’ motions. Judge Fitzwater dismissed all of Plaintiffs’ claims except the right to proceed
2
Plaintiffs’ Original Complaint included claims by Peter Brady and Garth Richards; however,
Plaintiffs’ First Amended Complaint removed the claims by those individuals.
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before an SBOA under 45 U.S.C. § 184; however, Judge Fitzwater did permit Plaintiffs to replead
their due process claim. Plaintiffs amended their Complaint accordingly, and the parties agreed that
discovery was unnecessary in this case.
Plaintiffs filed a Motion for Summary Judgment on March 22, 2004. Defendants each
responded and filed cross-motions for summary judgment on April 30, 2004. The case was then
transferred to this Court on July 19, 2004 pursuant to Special Order No. 03-237. The parties have
informed the Court that they prefer the case to be tried on the papers, so the Court now turns to the
merits of their arguments.
III. ANALYSIS
Summary judgment is appropriate when the pleadings and record evidence show that no
genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(per curiam). The burden is on the
movant to prove that no genuine issue of material fact exists. Provident Life & Accident Ins. Co. v.
Goel, 274 F.3d 984, 991 (5th Cir. 2001). If the non-movant bears the burden of proof at trial, the
movant may satisfy its burden by pointing to the absence of evidence to support the non-movant’s
case. Latimer v. Smithkline & French Labs., 919 F.2d 301, 303 (5th Cir. 1990).
The non-moving party must then “come forward with ‘specific facts showing that there is
a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(emphasis in original) (quoting FED . R. CIV . P. 56(e)). To determine whether a genuine issue exists
for trial, the Court must view all of the evidence in the light most favorable to the non-movant, and
the evidence must be sufficient such that a reasonable jury could return a verdict for the nonmovant. See Chaplin v. NationsCredit Corp., 307 F.3d 368, 371-72 (5th Cir. 2002).
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Standing
Before it can reach the merits of Plaintiffs’ Second Amended Complaint, the Court must first
address the issue of standing, which was raised by the APA in its Cross-Motion for Summary
Judgment. The APA claims that none of the Plaintiffs have standing in this case because (1) none
of the Plaintiffs were ever furloughed, (2) no pilots were ever furloughed as a result of the July 2
letter, and (3) the APA and AA amended Supplement CC in a way that eliminated the
interpretation grieved by Plaintiffs. (APA Br. p. 14) Therefore, according to the APA, the only
injury - failure to convene an SBOA to hear Plaintiffs’ grievance - is a procedural injury, which is
insufficient to establish standing. (Id.) Because standing is a threshold jurisdictional question, the
Court will address it first.
Standing is an essential and unchanging part of the case-or-controversy requirement of
Article III. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). In essence, it requires that the
plaintiff allege such a personal stake in the outcome of the controversy as to warrant the invocation
of federal jurisdiction and justify the exercise of the Court’s remedial power on his behalf. Warth v.
Seldin, 422 U.S. 490, 498-99 (1975). There are three essential elements of standing, and the party
invoking federal jurisdiction has the burden of establishing them. Lujan, 504 U.S. at 560-61. First,
the plaintiff must have suffered an “injury in fact,” that is, an invasion of a legally protected interest
which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.
Id. at 560; Lincoln v. Case, 340 F.3d 283, 289 (5th Cir. 2003). Second, there must be a causal
connection between the injury and the conduct complained of. Lujan, 504 U.S. at 560; Lincoln, 340
F.3d at 289. In other words, the injury has to be fairly traceable to the challenged action of the
defendant, and not the result of the independent action of some third party not before the Court.
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Lujan, 504 U.S. at 560-61. Third, it must be likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision. Id. at 561; Lincoln, 340 F.3d at 289.
1.
Injury in Fact
Turning to the first requirement of injury in fact, Plaintiffs claim that their injury is the
“invasion of [their] statutory right to arbitrate their grievance before an SBOA.” (Pls. Reply Mem.
to APA p. 9) As noted above, the APA asserts that, because Plaintiffs were not furloughed, no pilots
were furloughed, and Supplement CC has been amended, Plaintiffs have no standing to complain
of what the APA characterizes as a “purely procedural injury.” (APA Br. p. 14)
The APA bases its argument on the Supreme Court’s decision in Lujan v. Defenders of
Wildlife, 504 U.S. 555 (1992). In Lujan, certain environmental groups brought suit against the
Secretary of the Interior because he failed to consult with other agencies in issuing certain regulations
involving endangered species as was required by the Endangered Species Act of 1973. Id. at 558-59.
The Court first found that none of the plaintiffs had demonstrated an imminent injury with respect
to their interaction with the endangered species. Id. at 563-64. The Court then rejected the
plaintiffs’ argument that they had sustained a “procedural injury,” holding that there is no “abstract,
self-contained, noninstrumental ‘right’ to have the Executive observe the procedures required by
law.” Id. at 572-73. The APA argues that Plaintiffs’ case is analogous to Lujan, because Plaintiffs’
only claimed injury is the failure of the APA and AA to provide them the procedural right to an
SBOA. However, a comparison of this case with Lujan reveals significant differences.
First, the Supreme Court’s ruling in Lujan did not rule out all claims of procedural injuries.
Id. Specifically, the Court stated that
We do not hold that an individual cannot enforce procedural rights; he assuredly can,
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so long as the procedures in question are designed to protect some threatened
concrete interest of his that is the ultimate basis of his standing.
Id. at 573 n.8 (emphasis in original). The Court distinguished Lujan from cases in which plaintiffs
were seeking to enforce a procedural requirement the disregard of which could impair a separate
concrete interest of theirs, listing as examples the procedural requirement for a hearing prior to
denial of a license application and the procedural requirement for an environmental impact
statement before a federal facility is constructed next door to them. Id. at 572. In other words, the
Supreme Court in Lujan did not hold that procedural injuries are never actionable; instead, they
must be coupled with an underlying concrete interest that is affected by the procedure at issue.
This interpretation of Lujan was recently applied by the Seventh Circuit in Bensman v. United
States Forest Service, 408 F.3d 945 (7th Cir. 2005). In that case, several individuals sued when the
Forest Service refused to consider their appeals of certain decisions made by the Forest Service. Id.
at 949-50. The Seventh Circuit found that the plaintiffs were clearly asserting a procedural injury.
Id. at 951. However, the Court found that, under Lujan, the deprivation of a purely procedural right
is sufficient to establish standing when the individual who has been deprived of that right can
demonstrate that the deprivation of that right is related to another concrete injury. Id. at 952-53.
The Seventh Circuit held that the plaintiffs were not required to show that the Forest Service would
have reached a different decision had it considered the plaintiffs’ appeals; all that was necessary was
to show that the procedural step at issue was connected to the substantive result. Id. at 953.
Here, Plaintiffs’ alleged injury, at least with respect to their first cause of action, is a
procedural one. Plaintiffs are essentially complaining that the APA and AA violated 45 U.S.C. §
184 by refusing to convene an SBOA to hear Plaintiffs’ grievance. (Pls. Sec. Am. Compl. ¶¶ 26-31)
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Thus, under Lujan and Bensman, the Court must now determine if the procedural injury is founded
in another concrete interest. The APA contends that there is no concrete interest because (1)
Plaintiffs were never furloughed, (2) no pilots were ever furloughed as a result of the July 2 letter, and
(3) the APA and AA amended Supplement CC and eliminated the interpretation that caused
Plaintiffs’ grievance. To best understand the arguments and reasoning, the Court must set out in
detail Plaintiffs’ grievance and Defendants’ response.
Supplement CC established a minimum and maximum number of reserved small wide-body
(“SWB”) Captain Line Pilot positions at STL. (AA App. p. 12) The minimum number was equal
to 30% of the SWB Captain Line positions in the Chicago O-Hare (“ORD”) and Dallas/Fort Worth
(“DFW”) domiciles. (Id.) In general, the maximum number was established by a chart in
Supplement CC that was based on the number of SWB aircraft in service.3 (Id. at p. 14) The chart,
however, did not give a maximum if the number of SWB aircraft fell below 255. (Id.) The paragraph
following the chart stated that if there were fewer than 255 SWB aircraft in service, the maximum
number of reserved positions was the lesser of (i) 132 or (ii) 30% of the ORD and DFW SWB
Captain Line Pilot positions. (Id.) Thus, if there were few aircraft in service in ORD and DFW, the
maximum and minimum number of reserved positions was the same - 30% of the ORD and DFW
SWB Captain Line Pilot positions.4
The July 2 letter addressed such a situation. Faced with few aircraft in service, AA claimed
3
For example, if there were between 271 and 275 SWB aircraft in service in a given month, the
maximum number of reserved positions was 238. (Id. at p. 14)
4
Supplement CC also established minimum and maximum numbers of reserved narrow-body
Captain Line Positions at STL in the same way; however, for simplicity, the Court will only discuss the SWB
positions.
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it would be forced to furlough over 100 pilots in order to meet the exact number permitted by
Supplement CC. (Pls. App. pp. 24-25) In their grievance, Plaintiffs asserted that the maximum
number of pilots was never intended to fall below the last number in the chart - which was 132
reserved positions. (APA App. pp. 120-22) The JMC disagreed, based on the language following
the chart that established a maximum of the lesser of 132 or 30% of the ORD and DFW positions.
(Id.) Therefore, the JMC’s interpretation created a lower maximum and would require more
furloughs than Plaintiffs’ interpretation. With that background, the Court now addresses the APA’s
arguments.
The APA first states that Plaintiffs were never furloughed, and thus have no complaint. (Id.
at p. 8) However, Plaintiffs are still in the class of pilots subject to potential furlough under the
JMC’s interpretation of Supplement CC. Numerous circuits have held that an increased risk of
injury is sufficient to establish an injury for standing purposes. Baur v. Veneman, 352 F.3d 625, 63336 (2d Cir. 2003); Cent. Delta Water Agency v. U.S., 306 F.3d 938, 947-48 (9th Cir. 2002); Friends
of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 160 (4th Cir. 2000)(en banc);
Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1234-35 (D.C. Cir. 1996). Plaintiffs face
a greater risk of furlough under the JMC’s interpretation of Supplement CC than their own
interpretation, because their interpretation gives a higher maximum reserved positions.5 As such,
the fact that Plaintiffs have not yet been furloughed does not prevent them from having standing in
5
For a simplistic example, assume the number of SWB aircraft in service is 200, and the number of
SWB captain positions in ORD and DFW is 100. The minimum number of reserved positions is then 30
(30% of 100). The maximum number of positions is the lesser of (i) 132 or (ii) 30. Thus, in this situation,
AA would have to have exactly 30 reserved positions under the JMC interpretation, while Plaintiffs’
interpretation would permit any number between 30 and 132.
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this case, because they have an increased risk of injury.
Next, the APA claims it is “undisputed” that no pilots were ever furloughed as a result of the
July 2 letter. (APA Br. p. 14) A review of the evidence presented, however, shows that this is not
necessarily the case. As evidence for its assertion that no pilots were ever furloughed, the APA relies
solely on a sentence in Plaintiffs’ Brief in which Plaintiffs state it is irrelevant whether any pilots were
furloughed. (APA Br. p. 7; Pls. Br. p. 28) This does not prove one way or the other whether any
pilots were actually furloughed as a result of the July 2 letter. In fact, there is an absence of
conclusive evidence in this case as to whether any STL pilots were furloughed as a result of the July
2 letter. However, as noted above, there is a greater threat that pilots will be furloughed under the
JMC’s interpretation of Supplement CC than under Plaintiffs’ interpretation.6
Finally, the APA claims that Supplement CC has been amended to eliminate the
interpretation that was originally grieved by Plaintiffs. (APA Br. p. 14) Again, however, the
evidence does not bear out this assertion. In the circumstances addressed by the July 2 letter, AA
was required to hit an exact number of pilots every month, instead of falling within a flexible range,
which proved difficult because the number was hard to predict in advance. The amendment
referenced by the APA recognized this problem and relaxed AA’s goal. (APA App. pp. 127-28) AA
would now be given a little leeway in each direction with respect to the number of reserved positions.
(Id.) Therefore, the amendment did not change the interpretation of Supplement CC. Indeed, the
amendment recognized that there would be times when AA furloughed too many pilots. (Id.
6
The Court rejects Plaintiffs argument that this suit is a type of class action on behalf of the 103 exTWA pilots threatened with furlough. Plaintiffs have not attempted to meet any of the requirements of Rule
23 of the Federal Rules of Civil Procedure.
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[providing for circumstance when AA had not “achieved minimum staffing”]) All the amendment
did was make it easier for AA to come into compliance with Supplement CC in months when the
number of reserved positions was uncertain. Therefore, the amendment to Supplement CC did not
moot Plaintiffs’ argument that AA was calculating the number of pilots incorrectly.
Because Plaintiffs continue to be subject to what they believe is an erroneous interpretation
of Supplement CC and such interpretation is more likely to cause them to be furloughed, Plaintiffs
are not merely alleging a naked procedural injury. Rather, there is a concrete interest that is
ultimately at issue, and Plaintiffs have met the injury in fact requirement of standing.
2.
Causation and Redressability
Because Plaintiffs have satisfied the first element of standing - injury in fact - the Court must
now consider whether Plaintiffs have satisfied the remaining two elements - causation and
redressability. First, as to causation, the Plaintiffs’ injuries - both procedural and underlying - can
be traced directly to Defendants’ interpretation of Supplement CC and Defendants’ alleged denial
of an SBOA. Therefore, it is clear that Plaintiffs have met the causation requirement.
With respect to redressability, the Supreme Court has relaxed the standard when it comes
to procedural injuries. Lujan, 504 U.S. at 572 n.7; Bensman, 408 F.3d at 953. Plaintiffs are not
required to show that, had the procedural injury not occurred, Defendants would have reached a
different result on their grievance. Lujan, 504 U.S. at 572 n.7. It is sufficient to show that the
procedural injury is connected the grievance at issue. Bensman, 408 F.3d at 953. Here, remedying
Plaintiffs’ procedural injury may or may not change the outcome of the underlying grievance, but
there is a sufficient connection between the two that the Court finds the redressability element of
standing has been met. As such, the Court DENIES the APA’s Cross-Motion for Summary
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Judgment on the ground that Plaintiffs lack standing and proceeds with the merits of the case.
B.
Statutory Right to an SBOA
Because Plaintiffs have standing, the Court must now consider whether Plaintiffs have been
denied the right to proceed before an SBOA. When employees have proceeded through the
grievance process of a CBA without a satisfying result, the Railway Labor Act, 45 U.S.C. § 184,
provides that “the dispute[] may be referred by petition of the parties or by either party to an
appropriate adjustment board....” Section 184 makes it the duty of every air carrier, such as AA, and
union of air carrier employees, such as the APA, to establish a board of adjustment. In this case, the
CBA clearly established an SBOA (AA App. pp. 143-45); however, Plaintiffs were not permitted to
appear before it. (APA App. p. 152) Instead, Plaintiffs were limited to the JMC. Defendants now
argue that the JMC is an SBOA with specialized jurisdiction.
Section 184 does not describe exactly what attributes an SBOA must have, leaving it largely
up to the agreement of the employer and union. 45 U.S.C. § 184 (stating “[s]uch boards of
adjustment may be established by agreement between employees and carriers”). Defendants cite
numerous cases in which courts have approved four-member boards of adjustment, with two
members appointed by the carrier and two members appointed by the union. Such boards, in the
event of a deadlock, bring in a mutually agreed upon arbitrator to break the tie. Steward v. Mann,
351 F.3d 1338, 1341 (11th Cir. 2003); Ozark Air Lines, Inc. v. Air Line Pilots Ass’n, Int’l, 744 F.2d
1347, 1349 (8th Cir. 1984); Del Casal v. E. Airlines, Inc., 634 F.2d 295, 297 (5th Cir. 1981); Air Line
Pilots Ass’n, Int’l v. Civil Aeronautics Bd., 360 F.2d 837, 839 (D.C. Cir. 1966). The Court recognizes
that such boards have received court approval across the country, including the Fifth Circuit;
however, the JMC, although a four-member board, is significantly different from those boards. The
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JMC, in the event of a deadlock, does not bring in a neutral arbitrator. Instead, the JMC sends the
grievance to an entirely different board - the SBOA - with different members and procedures. (AA
App. pp. 143-45; APA App. pp. 19-20)
The rationale behind the RLA’s requirement of SBOAs was to create a system to settle
grievances that would prevent interruptions in the nation’s transportation services. Int’l Ass’n of
Machinists v. Cent. Airlines, Inc., 372 U.S. 682, 687-89 (1963); see also 45 U.S.C. § 151a. As such,
minor grievances, such as Plaintiffs’ grievance, are subject to the exclusive jurisdiction of the SBOA,
and its decision is binding upon the parties, barring an extremely narrow review in federal court. Air
Line Pilots Ass’n, Int’l v. E. Air Lines, Inc., 632 F.2d 1321, 1323 (5th Cir. 1980)(noting that SBOA
awards are final and conclusive and subject to extremely narrow review); Brown v. Am. Airlines, Inc.,
593 F.2d 652, 654-56 (5th Cir. 1979)(requiring parties to proceed before SBOA before bringing suit
in federal court). Here, the JMC can issue a final and binding decision only in those circumstances
in which it does not deadlock. Thus, for any grievance that produces a deadlock, the JMC does not
act as an SBOA with final decision-making authority - it is merely another step in the grievance
process.
Therefore, whether the JMC is an SBOA is entirely dependent on how its members vote on
a grievance. The Court does not believe this type of board, that may or may not be an SBOA
depending on whether a deadlock occurs, satisfies the RLA’s requirements of a statutory SBOA. As
Judge Fitzwater noted in this December 15, 2003 Memorandum Opinion and Order7 in this case
7
Because this Court agrees with Judge Fitzwater’s analysis, it does not need to reach Plaintiffs’
argument that Judge Fitzwater’s Memorandum Opinion and Order concerning Defendants’ motions to
dismiss is the law of the case.
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regarding Defendants’ motions to dismiss,
Under the CBA, however, an SBOA is a distinct body from the JMC that heard
plaintiffs’ grievance, with different functions and composition...Supplement CC itself
distinguishes between the JMC and “the Five Member System Board of Adjustment
as provided for in Section 23 of the [CBA]”...The JMC is structured to function prior
to, and separately from, the SBOA.
(Mem. Op. & Order p. 9 (doc. 38))
Thus, based on the structure of the grievance process as described in the CBA and
Supplement CC, the JMC is not an SBOA as defined by § 184. As such, Plaintiffs have been denied
a hearing before an SBOA and are entitled to one. Therefore, the Court GRANTS Plaintiffs’
Motion for Summary Judgment and DENIES AA’s and the APA’s Cross-Motions for Summary
Judgment on the issue of entitlement to a hearing before the SBOA.
The Court does not agree, however, with Plaintiffs’ contention that they are entitled to have
their case decided solely by a “neutral” arbitrator. The Fifth Circuit has found that the fact that an
SBOA is made up of employer and union appointed members does not mean that it will
automatically be biased. Del Casal, 634 F.2d at 299(citing Wells v. S. Airways, Inc., 517 F.2d 132,
(5th Cir. 1975)). Instead, in the context of overturning a decision of an SBOA, the Fifth Circuit
requires some showing of partiality or bias on the part of individual members. Id. Plaintiffs, in
essence, are asking the Court to declare that members of the SBOA are biased against them; yet,
Plaintiffs provide no evidence of who the individual board members are or why they will be biased.
In this case, the CBA specifically states that each SBOA member is free to decide a case any
way he or she so chooses without fear of repercussions from the company or other employees. (AA
App. p. 145) Thus, in other words, the members of the SBOA are not institutionally required to
vote a certain way on Plaintiffs’ grievance. The Court cannot sustain Plaintiffs’ challenge to the bias
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or hostility of the SBOA members without some evidence that they will be unable to render an
impartial decision. Therefore, the Court DENIES Plaintiffs’ Motion for Summary Judgment to the
extent Plaintiffs request a hearing solely before a neutral arbitrator.
Because the Court finds that Plaintiffs have not been permitted to present their grievance to
an SBOA, the Court need not reach Plaintiffs’ alternative contention that the JMC provided
insufficient due process.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiffs’
Motion for Summary Judgment, AA’s Cross-Motion for Summary Judgment, and the APA’s CrossMotion for Summary Judgment. The Court ORDERS that Defendants permit Plaintiffs to present
their grievance before an SBOA as provided for in the CBA; however, Defendants are not required
to have Plaintiffs’ grievance decided solely by an arbitrator. The Court does not reach Plaintiffs’
claim that the hearing before the JMC violated their due process rights.
SO ORDERED.
SIGNED September 22rd , 2005
_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE
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