Association of Flight Attendants, AFL-CIO v. United Airlines, Inc.

• Decision Date: 06 February 1996
• Docket Number: A,No. 95-7001,AFL-CI,95-7001
• Citation: 71 F.3d 915
• Parties: 151 L.R.R.M. (BNA) 2211, 315 U.S.App.D.C. 207, 131 Lab.Cas. P 11,463 ASSOCIATION OF FLIGHT ATTENDANTS,ppellee, v. UNITED AIRLINES, INC., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 915

71 F.3d 915

151 L.R.R.M. (BNA) 2211, 315 U.S.App.D.C. 207,

131 Lab.Cas. P 11,463

ASSOCIATION OF FLIGHT ATTENDANTS, AFL-CIO, Appellee, v. UNITED AIRLINES, INC., Appellant.

No. 95-7001.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 2, 1995.

Decided Dec. 15, 1995.

Rehearing and Suggestion for Rehearing In Banc Denied Feb. 6, 1996.

Appeal from the United States District Court for the District of Columbia (92cv0947).

Robert A. Siegel, Los Angeles, argued the cause, for appellant, with whom Michael G. McGuinness, Los Angeles, and David T. Beddow, Washington, DC, were on the briefs.

Stephen B. Moldof, New York City, argued the cause, for appellee, with whom Edward J. Gilmartin, Washington, DC, was on the brief.

Before: WALD, SILBERMAN and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

United Airlines, Inc. appeals the district court order directing arbitration of a collective bargaining dispute between it and the Association of Flight Attendants (AFA). We affirm.

I.

The facts are not disputed. UAL Corporation, which is the sole owner of United Airlines, acquired all the shares of Air Wisconsin. UAL maintained the two airlines as separate subsidiaries. The Association of Flight Attendants represents the flight attendants at both Air Wisconsin and United pursuant to National Mediation Board (NMB or Board) certifications. The AFA demanded that the Air Wisconsin flights be staffed only by flight attendants on the United Airlines System Seniority List under the terms and conditions of the AFA-United collective bargaining agreement, notwithstanding the AFA-Air Wisconsin collective bargaining agreement. United refused, and the AFA filed a grievance.

A 1986 side letter agreement between the parties, the source of United's purported contractual obligation, provides:

Except as specifically provided in [another side letter agreement], neither UAL, Inc., United Airlines nor a successor, assign, or subsidiary thereof (hereinafter referred to as the "Company"), will, if such entity has a controlling interest, whether acting individually or jointly with any of the above entities, conduct any commercial flight operations of the type historically performed by United Airlines Flight Attendants, unless it performs such work with flight attendants on the United Airlines System Seniority List. Such flying shall be performed in accordance with the terms and conditions of the existing agreement or any other applicable agreement between the Company and the Union.

This scope clause agreement was incorporated verbatim into, and runs concurrently with, the post-1986 AFA-United collective bargaining agreement, which became effective September 1, 1991, and is not amendable until March 1, 1996. United refused to process this grievance, asserting that the AFA's claim fell within the Board's exclusive jurisdiction. The AFA sought an order from the district court compelling United to arbitrate its scope clause claim before the United-AFA system board of adjustment. Summary judgment was granted in favor of the AFA.

II.

The parties disagree over the proper characterization of their dispute. AFA claims that it is a "minor" dispute while United argues that it is a representation dispute. The Railway Labor Act (RLA) provides different procedures for the resolution of "minor" disputes and representational disputes. ¹ "Minor" disputes, which " 'relate[ ] either to the meaning or proper application of a particular provision' " of a collective bargaining agreement, Consolidated Rail Corp. v. Railway Labor Executives' Ass'n, 491 U.S. 299, 303, 109 S.Ct. 2477, 2480, 105 L.Ed.2d 250 (1989) (quoting Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 1290, 89 L.Ed. 1886 (1945)), must be submitted to arbitration before a system board of adjustment for "final and binding" resolution. See Air Line Pilots Ass'n, Int'l v. Eastern Air Lines, Inc., 869 F.2d 1518, 1520-21 (D.C.Cir.1989). The district court has jurisdiction to compel arbitration of such disputes. See Western Airlines, Inc. v. International Bhd. of Teamsters, 480 U.S. 1301, 1302, 107 S.Ct. 1515, 1515, 94 L.Ed.2d 744 (O'Connor, J.), motion denied, 481 U.S. 1002, 107 S.Ct. 1621, 95 L.Ed.2d 196 (1987); Association of Flight Attendants v. Delta Air Lines, Inc., 879 F.2d 906, 917 (D.C.Cir.1989), cert. denied, 494 U.S. 1065, 110 S.Ct. 1781, 108 L.Ed.2d 783 (1990). Representation issues, on the other hand, are within the exclusive jurisdiction of the Board to investigate, if need be, and to decide, and are not ordinarily subject to judicial review. See Switchmen's Union of North America v. National Mediation Bd., 320 U.S. 297, 302-05, 64 S.Ct. 95, 97-99, 88 L.Ed. 61 (1943). The RLA provides that the NMB is to resolve "any dispute [which] arise[s] among a carrier's employees as to who are the representatives of such employees." Accordingly, the Board is given authority, in conducting an election in order to determine who is the representative, to "designate who may participate in the election." 45 U.S.C. Sec. 152, Ninth (1986) (emphasis added). Such designations are labeled a "craft or class" determination. All this is common ground between the parties.

United argues that the district court lacked subject matter jurisdiction over the AFA's scope clause claim because the requested order encroaches upon the exclusive jurisdiction of the Board. The scope clause dispute, it is argued, raises a representation issue because the "NMB must first resolve the question of whether previously separate carriers have in fact combined to form a single carrier and whether the employee groups at each carrier should therefore be combined." An arbitrator's resolution of this issue would infringe upon the "continuing right of a majority of employees within each 'craft or class' at each carrier to determine whether, in the future, they desire to be represented by a particular union, or at all." United points out that federal courts, including our circuit, have addressed situations where an airline carrier has been acquired by another airline in which the union representing employees of the acquiring company attempts to enforce a scope agreement which requires the application of its collective bargaining agreement to the corresponding class of employees of the acquired carrier. And in those cases courts have concluded that the scope clause dispute implicates representation issues which can only be resolved by the NMB. See, e.g., Flight Eng'rs' Int'l Ass'n v. Pan American World Airways, Inc., 896 F.2d 672, 673 (2d Cir.), cert. denied, 495 U.S. 953, 110 S.Ct. 2220, 109 L.Ed.2d 545 (1990); International Bhd. of Teamsters v. Texas Int'l Airlines, Inc., 717 F.2d 157, 163-64 (5th Cir.1983); Independent Union of Flight Attendants v. Pan American World Airways, Inc., 664 F.Supp. 156, 159-60 (S.D.N.Y.1987), aff'd, 836 F.2d 130 (2d Cir.1988). ² We asked the NMB if it wished to file an amicus brief since the question presented went to its jurisdiction, but the Board respectfully declined stating only that the "Board has determined that paramount needs of neutrality militate against filing an amicus brief."

We think, as did the district court (and AFA), that the cases United relies on are distinguishable. It is rather obvious that if two airlines merge and their employees in the same jobs are represented by different unions the federal courts lack jurisdiction over collective bargaining claims because a representation issue is necessarily implicated. See, e.g., Air Line Employees v. Republic, Inc., 798 F.2d 967 (7th Cir.1986); Brotherhood of Ry. and Steamship Clerks v. United Air Lines, Inc., 325 F.2d 576, 579-80 (6th Cir.1963), cert. dismissed as improvidently granted, 379 U.S. 26, 85 S.Ct. 183, 13 L.Ed.2d 173 (1964); cf. General Comm. of Adjustment v. Southern Pacific Co., 320 U.S. 338, 64 S.Ct. 142, 88 L.Ed. 85 (1943) (holding that a union's request for declaratory relief invalidating a collective bargaining agreement insofar as it designated another union as the representative of certain employees was a dispute within the exclusive jurisdiction of the NMB). The application of one union's collective bargaining agreement to another union's members would create a situation where those members would have, in effect, two representatives. But, one could no more have two exclusive representatives than, to use the old baseball expression, "two men on second base."

In Delta Air Lines, 879 F.2d at 912-13, and Association of Flight Attendants v. USAir, Inc., 24 F.3d 1432, 1440 (D.C.Cir.1994), we indicated our approval of the reasoning of Texas Int'l Airlines, 717 F.2d at 157, in which this principle...