Breeze Aviation Grp. v. Nat'l Mediation Bd.

• Docket Number: Case No. 2:22-cv-00514-TC-JCB
• Decision Date: 23 May 2023
• Citation: 674 F.Supp.3d 1045
• Parties: BREEZE AVIATION GROUP, INC., Plaintiff, v. NATIONAL MEDIATION BOARD, Defendant, and Air Line Pilots Association, Int'l, Defendant-Intervenor.
• Court: U.S. District Court — District of Utah

674 F.Supp.3d 1045

BREEZE AVIATION GROUP, INC., Plaintiff, v. NATIONAL MEDIATION BOARD, Defendant,andAir Line Pilots Association, Int'l, Defendant-Intervenor.

Case No. 2:22-cv-00514-TC-JCB

United States District Court, D. Utah

Signed May 23, 2023

Jacquelyn Lorraine Thompson, Pro Hac Vice, FordHarrison LLP, Washington, DC, Jonathan O. Hafen, Austin J. Riter, Cheylynn Hayman, Parr Brown Gee & Loveless, Salt Lake City, UT, Amber Arnette, Pro Hac Vice, FordHarrison LLP, Atlanta, GA, for Plaintiff.

Amanda A. Berndt, U.S. Attorney's Office, Salt Lake City, UT, for Defendant.

Joshua J. Ellison, Pro Hac Vice, Matt S. Harris, Pro Hac Vice, Air Line Pilots Assocation International, McLean, VA, Erik Strindberg, Strindberg Scholnick Birch HallamHarstad Thorne, Salt Lake City, UT, for Defendant-Intervenor.

ORDER GRANTING DEFENDANT NATIONAL MEDIATION BOARD'S MOTION TO DISMISS(ECF NO. 28); DENYING ALPA'S MOTION TO DISMISS(ECF NO. 33) AS MOOT

Tena Campbell, United States District Judge

PlaintiffBreeze Aviation Group, Inc.(Breeze) is a start-up airline.Compl.¶ 21, ECF No. 2.In 2022, DefendantNational Mediation Board(the Board or NMB) oversaw a representation election among Breeze's Flight Deck Crewmembers.¹Id.¶¶ 29-52.Following the election, the Board certified Defendant-IntervenorAir Line Pilots Association(ALPA) as Breeze's pilots' representative.Id.¶ 49.In its complaint, Breeze challenges the certification decision, arguing it was a gross violation of the Railway Labor Act (RLA).The Board and ALPA have moved to dismiss Breeze's complaint.Board Mot. Dismiss, ECF No. 28;ALPA Mot. Dismiss, ECF No. 33.For the reasons discussed below, the court grants the Board's Motion to Dismiss.

I.Background

a. The Process of Certifying a Craft or Class Representative.

Breeze is a common carrier by air within the meaning of RLA Section 201, 45 U.S.C. § 181. Compl.¶ 2, ECF No. 2.Accordingly, this case implicates the RLA, which governs labor relations in the airline and rail industries.Id.¶ 6.The RLA protects the rights of airline and rail employees "to organize and bargain collectively through representatives of their own choosing."Id.(quoting45 U.S.C. § 152, Fourth).The Board "is an independent U.S. federal government agency that facilitates labor-management relations within the nation's railroad and airline industries."Id.¶ 3.One of its responsibilities is " 'effectuating employee rights of self-organization where a dispute exists' in compliance with the RLA."Id.(quoting NMB, Overview & FAQ, https://nmb.gov/NMB_Application/index.php/overview-faq).The RLA empowers the Board "to conduct majoritarian elections among airline and railway employees 'to determine who shall be the representative of the [employee] craft or class' for purposes of collective bargaining."Id.¶ 3(quoting45 U.S.C. § 152, Fourth).

A group of airline employees is a "craft or class."²As summarized in Breeze's complaint, a union seeking to represent a craft or class of airline employees begins the process by filing an application requesting that the Board conduct an election among the members of the craft or class.Id.¶ 7(citing29 C.F.R. § 1203.2)."The RLA requires that the union's application be supported by a showing of interest from at least 50% of the craft or class."Id.(citing45 U.S.C. § 152, Twelfth;29 C.F.R. § 1206.2).To establish this showing of interest, "the union submits signed employee 'authorization cards' to the Board with its application."Id.¶ 8(citing29 C.F.R. §§ 1203.2,1206.2)."If the union fails to meet the necessary showing of interest, the Board dismisses the union's application."Id.

If the application is supported by the required interest, "the Board conducts an election to determine whether the employees within the craft or class desire to be represented by the applicant union, by some other union, or to remain unrepresented."Id.The RLA requires that a "majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter."Id.¶ 9(quoting45 U.S.C. § 152, Fourth)(emphasis added by Breeze in its Complaint).

In addition to the RLA's directives, the Board sets out rules regarding representation elections and employee eligibility to participate in such elections in its Representation Manual.Id.¶ 16.Relevant here, the Manual establishes "that to be eligible to participate in an election, an employee must have an employee-employer relationship with the airline as of the eligibility 'cut-off date,' which is generally the last day of the last payroll period ending before the day on which the Board received the union's application."Id.(citingRepresentation Manual§§ 2.3, 2.4(2022)).The Manual also "provides that '[a]ll individuals working regularly in the craft or class on and after the cut-off date are eligible to vote in an NMB representation election.' "Id.(quotingRepresentation Manual§ 9.2(2022)).This means employees hired after the cut-off date typically cannot participate in the election, but the Board can modify the default eligibility cut-off date if it finds "extraordinary or unusual circumstances" are present.Seeid.¶¶ 16-20.

b. The Challenged Representation Election.

Under the process outlined above, on April 6, 2022, ALPA filed an application with the Board seeking a representation election among Breeze's Flight Deck Crewmembers.Id.¶ 29."In its application, ALPA stated that there were 69 Breeze employees in the craft or class."Id.The last day of the last payroll period ending before the day on which the Board received ALPA's application was March 31, 2022, consequently, that date is the eligibility cut-off date for the election.Id.¶ 25.By the cut-off date, the airline "had hired 137 Flight Deck Crewmembers (Pilots), all of which were actively on the Company's payroll."Id.Reflecting this, following ALPA's application to the Board, Breeze gave the Board a list of the 137 pilots it had "an employee-employer relationship" with as of the cut-off date.Id.¶ 30.All 137 "were employed as full-time pilots" at that time.Id.¶ 30;seeid.¶ 39.

Of these 137 individuals, 71 "had not completed training and were not released to regular line service" before the cut-off date.Id.¶ 31.³In its Complaint, Breeze goes into detail about the status of the 71 Trainee Pilots as of the cut-off date.They were "hired as full-time Breeze pilots before ALPA filed its application with the Board in April 2022."Id.¶ 32.They"were performing work as Breeze pilots under the supervision of Breeze management, all had received and were subject to the Breeze Pilot Playbook, which sets forth the terms and conditions of the employer-employee relationship applicable to Breeze pilots, and all were being paid in the same manner as any other Breeze pilot under the terms of the Breeze Pilot Playbook."Id.¶ 34.And,

all 71 pilots were in the service of Breeze, performing work for Breeze, and subject to Breeze's continuing supervision and direction . . . .Specifically, the pilots were hired and being paid to perform work as Breeze pilots in the same manner as every other Breeze pilot.All were working under the supervision and direction of Breeze management.Breeze directed and supervised these pilots on when, where, and how to complete their required training.Also, the 71 pilots were on the pilot seniority list . . . .In addition, as these 71 pilots were already performing work as Breeze pilots, they had an assurance of continued employment in the craft or class.

Id.¶ 40.During the May 9, 2023 hearing on the motions to dismiss, counsel for Breeze elaborated on the work these 71 Trainee Pilots were doing before the cutoff date: they attended flight school, provided services by way of their work on simulators, and were preparing to fly.Breeze's counsel noted that these 71 Trainee Pilots were not first-time flyers, rather, they each had thousands of hours of flying experience."[F]or most of" the 71 Trainee Pilots, the "only thing that prevented them from completing training and flying in revenue service prior to the cut-off date" was "the FAA's unusually lengthy review process for the Airbus A220s."Id.¶ 33.⁴

"Following Breeze's submission[ of the list that contained the 137 pilots with an employee-employer relationship as of the cut-off date], ALPA filed challenges and objections" to Breeze's list.Id.¶ 31.Relevant here, "ALPA challenged the inclusion of the 71 pilots who had not completed training and were not released to regular line service before" the cut-off date.Id.In response, Breeze asked "the Board to find the 71 pilots were employees within the craft or class of [pilots] properly included on the list."Id.¶ 32."Alternatively, in light of the significant expansion in the craft or class prior to when ALPA filed its application, which [Breeze asserts] was a novel and unusual circumstance . . . Breeze requested that the Board modify the eligibility cut-off date."Id.¶ 35.It requested this change "to permit all 137 [pilots] who were employed as Breeze pilots on March 31, 2022 to participate in the election, should the Board authorize one."Id.¶ 36.Specifically, Breeze requested the cut-off date "be modified from March 31, 2022 to September 30, 2022 in order to permit the Pilot Trainees to vote."Breeze Aviation Group, Inc., 49 NMB 112, 117(2022)(Ex. 1 to Compl., ECF No. 2-1);see alsoReply Supp. Board Mot. Dismiss 6 n.32, ECF No. 39(citingBreeze Aviation, 49 NMBat 117)("[Breeze] asked the Board to extend the cut-off date to September 30, 2022—almost five months into the future—to allow its trainee pilots to graduate.").ALPA opposed both requests.Compl.¶ 38, ECF No. 2.

"[T]he Board rejected Breeze's position that the 71 pilots were employees within the craft or class of [pilots] properly included on the list and its alternative request to modify the eligibility cut-off date."...