Air Line Pilots Ass'n, International v. US Airways Group, Inc.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AIR LINE PILOTS ASSOCIATION, 

INTERNATIONAL,

Plaintiff-Appellant,

v.

US AIRWAYS GROUP,

INCORPORATED; US AIRWAYS,  No. 09-2083

INCORPORATED; PIEDMONT AIRLINES;

PSA AIRLINES, INCORPORATED,

Defendants-Appellees,

US AIRLINE PILOTS ASSOCIATION,

Party-in-Interest-Appellee.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, Senior District Judge.

(1:09-cv-00222-CMH-TCB)

Argued: May 12, 2010

Decided: June 23, 2010

Before WILKINSON and KING, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Judge King and Senior Judge Hamilton

joined.

2 AIR LINE PILOTS v. US AIRWAYS GROUP

COUNSEL

ARGUED: Marcus Charles Migliore, AIR LINE PILOTS

ASSOCIATION, INTERNATIONAL, Washington, D.C., for

Appellant. Robert Alan Siegel, O’MELVENY & MYERS,

LLP, Los Angeles, California, for Appellees. ON BRIEF:

Matthew E. Babcock, AIR LINE PILOTS ASSOCIATION,

INTERNATIONAL, Herndon, Virginia; Bernard J. DiMuro,

DIMUROGINSBERG, PC, Alexandria, Virginia, for Appel-

lant. Douglas Ward Hall, Randy C. Sparks, Jr., FORD &

HARRISON, LLP, Washington, D.C., for Appellees Pied-

mont Airlines and PSA Airlines, Incorporated; Aparna Joshi,

Micah W. J. Smith, Justin Florence, O’MELVENY &

MYERS, LLP, Washington, D.C., for Appellees US Airways

Group, Incorporated, and US Airways, Incorporated. Stanley

J. Silverstone, SEHAM, SEHAM, MELTZ & PETERSEN,

LLP, White Plains, New York, for Appellee US Airline Pilots

Association.

OPINION

WILKINSON, Circuit Judge:

This case involves an effort by a union of airline pilots to

use the Railway Labor Act ("RLA"), 45 U.S.C. §§ 151 et seq.,

to compel several airlines, the airlines’ holding company, and

another union to establish and arbitrate before a multi-

employer, multi-union board of adjustment. We hold, how-

ever, that plaintiff’s claim is foreclosed by the plain language

of Section 204 of the RLA, id. § 184, which permits but does

not require such a board of adjustment, and that plaintiff’s

alternative state law claim is meritless. Accordingly, we

affirm the district court’s dismissal of the complaint.

I.

The plaintiff, the Air Line Pilots Association ("ALPA"), is

a labor organization that represents various pilots in collective

AIR LINE PILOTS v. US AIRWAYS GROUP 3

bargaining. The defendants in this case are the holding com-

pany U.S. Airways Group, Inc. ("Group") and three of

Group’s wholly owned air carrier subsidiaries: U.S. Airways,

Inc. ("Airways"), Piedmont Airlines, Inc. ("Piedmont"), and

PSA Airlines, Inc. ("PSA"). The plaintiff represents the pilots

of Piedmont and PSA. It previously represented the pilots of

Airways as well, but on April 18, 2008, another union, the

U.S. Airline Pilots Association ("USAPA"), replaced it as

their representative.

Starting about 1997 and ending around 2004, the plaintiff,

on behalf of Airways, Piedmont, and PSA pilots, negotiated

a number of collective bargaining agreements that form the

basis of the instant dispute. No agreement was ever signed by

all parties. The plaintiff nonetheless characterizes the set of

contracts as complex and interlocking, such that their net

effect is to somehow involve all the defendants in a scheme

entitling PSA and Piedmont pilots to preferential rights to job

vacancies at Airways. These rights are referred to as "flow-

through" rights.

In 2007, a dispute erupted over the alleged flow-through

rights, which plaintiff claims the defendants violated. Several

rounds of discussions failed to resolve the matter, and the par-

ties were unable to agree on the proper format for arbitration.

Consequently, in early 2009, the plaintiff brought suit in the

Eastern District of Virginia.

Both parties agree that the plaintiff is not seeking a deter-

mination on the merits of the flow-through dispute. It instead

is seeking injunctive and declaratory relief to compel resolu-

tion of the dispute through arbitration. The plaintiff contends

further that effective resolution of the dispute requires arbitra-

tion before a multi-carrier, multi-union adjustment board—

i.e., one with jurisdiction over the plaintiff, the defendants,

and USAPA. The defendants, on the other hand, contend that

they have fulfilled their statutory duty by establishing single-

4 AIR LINE PILOTS v. US AIRWAYS GROUP

carrier adjustment boards and that the plaintiff must present

its grievance to those boards.

The complaint alleges two counts. First, plaintiff argues

that two provisions of the Railway Labor Act ("RLA")—

Section 204, codified at 45 U.S.C. § 184, and Section 2-First,

codified at 45 U.S.C. § 152-First—independently require the

defendants to create and participate in a multi-carrier, multi-

union board. The second count is directed only at Group and

alleges that Group is obligated to arbitrate under state contract

law.

The defendants moved to dismiss the lawsuit, see Fed. R.

Civ. P. 12(b)(6), and the district court granted the motion, dis-

missing the plaintiff’s complaint in its entirety. See Air Line

Pilots Ass’n v. U.S. Airways Group, Inc., 2009 WL 2708009

(E.D. Va. Aug. 25, 2009). As to count one, the court held that

neither Section 204 nor Section 2-First of the RLA provided

a basis for relief. Under Section 204, the court concluded that

multi-carrier, multi-union adjustment boards were purely vol-

untary in the airline industry. The district court further deter-

mined that Section 2-First’s general duty requiring

"reasonable effort[s]" to resolve disputes could not take the

place of the more specific language of Section 204, allowing

but not mandating multi-party arbitration. As to count two of

the complaint, the court held that Group did not have any con-

tractual obligations under state law to arbitrate.

II.

The plaintiff’s aim in this case is to compel arbitration

before a multi-employer, multi-union board of adjustment. It

is undisputed that in the airline industry, the RLA makes

"minor" disputes, which are disputes over the interpretation of

collective bargaining agreements, subject to final and binding

arbitration before a "board of adjustment." See Consol. Rail

Corp. v. Ry. Labor Executives’ Ass’n, 491 U.S. 299, 304 &

n.4 (1989) ("Conrail"). The parties dispute, however, whether

AIR LINE PILOTS v. US AIRWAYS GROUP 5

this requirement is satisfied by a "system" (i.e., single-carrier)

adjustment board, as is typical in the airline industry, or

whether, at least in this particular case, it necessitates a

"group" (i.e., multi-carrier, multi-union) adjustment board.

See 45 U.S.C. § 184. In arguing in favor of a group adjust-

ment board, the plaintiff relies primarily on Section 204 of the

RLA, id., offering several distinct arguments based on that

section.

A.

Plaintiff contends that construing Section 204 to leave

group boards to the election of the parties would frustrate two

of Congress’s goals in enacting the RLA. First, according to

the plaintiff, it would undermine the longstanding federal pol-

icy that "favors arbitration of labor disputes." Lynchburg

Foundry Co. v. Patternmakers League, 597 F.2d 384, 386

(4th Cir. 1979). This policy has special importance in the rail

and air industries, where failure to resolve labor disputes in a

"prompt and orderly" manner may "interrupt[ ] . . . com-

merce" and thus adversely affect the public interest in travel-

ing and shipping. 45 U.S.C. § 151a; see Union Pac. R.R. Co.

v. Sheehan, 439 U.S. 89, 94 (1978) (per curiam). Second,

plaintiff insists that interpreting Section 204 to require only

single-carrier boards for multi-carrier disputes would effec-

tively deny pilots a remedy for the alleged violation of their

flow-through rights, thereby contravening the "strong con-

gressional interest in seeing that employees are not left ‘reme-

diless’ and without a forum to present their grievances."

Capraro v. United Parcel Serv. Co., 993 F.2d 328, 336 (3d

Cir. 1993). Without the participation of Group, Airways,

PSA, Piedmont, and USAPA in a group board, plaintiff

argues that this policy would be thwarted because arbitration

would be futile.

Such general propositions, however, fail to account for the

specific instructions of Congress in this context. It is a cardi-

nal rule of statutory construction that we begin with the text

6 AIR LINE PILOTS v. US AIRWAYS GROUP

of the statute itself and must "assume that the legislative pur-

pose is expressed by the ordinary meaning of the words used."

Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (cita-

tion and internal quotations omitted). Section 204 of the RLA

states:

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 . . . may be referred by

petition of the parties or by either party to an appro-

priate adjustment board, as hereinafter provided

....

It shall be the duty of every carrier and of its

employees . . . to establish a board of adjustment

....

Such boards of adjustment may be established by

agreement between employees and carriers either on

any individual carrier, or system, or group of carriers

by air and any class or classes of its or their employ-

ees . . . .

45 U.S.C. § 184.

The meaning of this statutory language is clear. It states

that an air carrier and its employees "shall . . . establish a

board of adjustment" but that such a board of adjustment

"may . . . by agreement" consist of a "group of carriers by air."

Id. (emphases added). In other words, an airline and its pilots

are required to create a board of adjustment, as indicated by

Congress’s use of the obligatory "shall." However, the form

of that board of adjustment is discretionary, such that airlines

and pilots are permitted, but not required, to establish "group"

boards with jurisdiction over multiple entities, as indicated by

Congress’s use of the permissive "may."

AIR LINE PILOTS v. US AIRWAYS GROUP 7

In construing statutory terms in accordance with their "or-

dinary or natural meaning[s]," as we must, FDIC v. Meyer,

510 U.S. 471, 476 (1994), it is uncontroversial that the term

"shall" customarily connotes a command, whereas the term

"may" typically indicates authorization without obligation.

See Lopez v. Davis, 531 U.S. 230, 240 (2001); Miller v.

French, 530 U.S. 327, 337 (2000). As we have previously

explained, a party’s "contention that the word ‘may’ means

‘shall’ . . . is not a tenable construction of the language

involved. . . . ‘[M]ay’ sometimes means ‘won’t.’" Lynchburg

Foundry Co. v. Patternmakers League, 597 F.2d 384, 387

(4th Cir. 1979) (citation omitted). That is, under Section 204,

air carriers and their employees may—or may not—decide to

create a group board of adjustment.

That the word "may" is to be given a meaning distinct from

the word "shall" is further bolstered by Congress’s use of both

words in close proximity to one another, signaling that the

contrast was not accidental or careless. As the Supreme Court

stated, the permissive nature of the word "may" is "particu-

larly apt where, as here, ‘may’ is used in contraposition to the

word ‘shall.’" Jama v. Immigration & Customs Enforcement,

543 U.S. 335, 346 (2005). As early as 1895, the Court recog-

nized that when "the word ‘may’ is used in special contradis-

tinction to the word ‘shall,’ . . . there can be no reason for

‘taking such a liberty’ [with the plain words of the statute]."

United States ex rel. Siegel v. Thoman, 156 U.S. 353, 359

(1895).

This commonsense reading of Section 204 conforms with

the remaining text, ensuring that the phrase "by agreement" is

not rendered superfluous. See Corley v. United States, 129

S.Ct. 1558, 1566 (2009). Congress not only informs us in Sec-

tion 204 that parties "may" establish a multi-carrier, multi-

union board but also identifies the precise manner in which

they are to arrive at that choice: "by agreement." 45 U.S.C.

§ 184. In other words, as part of the collective bargaining pro-

cess, parties are free to negotiate over the desirability of a

8 AIR LINE PILOTS v. US AIRWAYS GROUP

group board. As the district court pointed out, if a multi-

carrier, multi-union board of adjustment were required by

operation of law rather than by parties’ contractual consent,

"there would be little reason to expend the resources neces-

sary to bargain for one."

As the district court further noted, "[t]he import of these

[statutory] phrases is clear: air carriers and their employees

have a statutory duty to establish boards of adjustment, but if

they wish to create (and bear the expense of) multi-carrier

boards of adjustment, they must contract to do so." Because

the statutory language does not admit of doubt as to Con-

gress’s intended meaning, it must be regarded as conclusive.

See Nelson v. Piedmont Aviation, Inc., 750 F.2d 1234, 1236

(4th Cir. 1984). In short, we assume Congress said what it

meant and meant what it said. Connecticut Nat’l Bank v. Ger-

main, 503 U.S. 249, 253-54 (1992).

Moreover, contrary to plaintiff’s suggestion, our holding is

in harmony with the aims of the RLA. The alternative to

multi-party arbitration in this case is not an absence of arbitra-

tion. Rather, it is arbitration before single-carrier boards of

adjustment, which each of the defendant carriers has estab-

lished in compliance with Section 204. The RLA’s preference

for arbitration over litigation is not vitiated because one party

believes the format for arbitration is less than ideal. Likewise,

plaintiff is not rendered remediless because, although it has

access to an arbitral forum, it worries that it may not prevail

on the merits or fears that the arbitrator will be unable to

award the precise relief it seeks. Plaintiff’s prediction that it

will be without an adequate remedy is speculation, because

plaintiff has not allowed the existing arbitration scheme to

operate. Although it has filed grievances with defendants’

system boards, it has not seen those grievances through to a

hearing.

Congress was plainly within its rights to combine the vir-

tues of arbitration with the virtues of collective bargaining. It

AIR LINE PILOTS v. US AIRWAYS GROUP 9

determined simply that an arbitral forum was required, with

the parameters of that forum being left to voluntary agree-

ment. See 45 U.S.C. § 184. Collective bargaining is not

restricted to substantive disputes but may encompass the

forum in which those disputes are to be resolved. As the

Supreme Court has stated, "arbitration of labor disputes under

collective bargaining agreements is part and parcel of the col-

lective bargaining process itself." United Steelworkers v. War-

rior & Gulf Navigation Co., 363 U.S. 574, 578 (1960). The

plaintiff was permitted by Section 204 to bargain for a multi-

employer, multi-union board prior to the onset of a multi-

employer, multi-union dispute. Where numerous cross-

referencing collective bargaining agreements with multiple

parties, including a parent corporation and its subsidiaries, are

involved, it is hardly unforeseeable that a multi-party dis-

agreement over the interpretation of those agreements would

ensue. But none of this impugns the congressional judgment

that voluntary agreements as to fora have a meaningful role

to play in the airline industry’s employment dispute resolution

practices.1

In making group adjustment boards creatures of contract,

Congress relieved federal courts of the burden of delineating

what a group adjustment board would or should look like:

How many arbitrators would be on the board? How would the

arbitrators be chosen? What rules or procedures would they

follow? Congress allocated that task to the parties, allowing

them to hash out the specifics through negotiation. If experi-

ence shows this process to be somehow deficient, the remedy

1

Contrary to plaintiff’s suggestion, the voluntary nature of multi-party

boards is not called into question by Section 2-Second or Section 2-Sixth.

45 U.S.C. § 152-Second & Sixth. We need not resolve the parties’ vigor-

ous dispute over what these provisions do or do not require, because even

if plaintiff is correct that they demand pre-arbitration conferencing with

multiple carriers and multiple employees, there would be nothing irratio-

nal about a regime that called upon parties to discuss their disputes in

group conferences but allowed them to decide for themselves whether to

arbitrate separately or together.

10 AIR LINE PILOTS v. US AIRWAYS GROUP

is a legislative one. Indeed, plaintiff can point to no case

where courts have stepped in to award the type of relief

sought here.

B.

Plaintiff’s Section 204 claim faces yet another hurdle.

Plaintiff seeks to use the provision to compel Group to partic-

ipate in multi-party arbitration. Because Group is simply a

holding company of three airlines and does not itself perform

services in connection with air transportation, it is not a "car-

rier by air" under Section 201 of the RLA, 45 U.S.C. § 181,

and therefore not subject to the requirements of the RLA. The

plaintiff admits as much but argues that Group is nonetheless

subject to the demands of Section 204 as the bargaining agent

for its air carrier subsidiaries.

But this argument too is overcome by Section 204’s plain

text, which does not, by its terms, impose any duties on

"agents." See 45 U.S.C. § 184. By not expressly including

agents within its scope, Section 204 contrasts with other RLA

provisions that do expressly cover "agents," see, e.g., id.

§ 152-First, thus suggesting that the omission was not a con-

gressional oversight. As the district court observed, "Congress

knew how to place agents within a statutory provision when

it wanted to—as evidenced by Section 2, First — and thus its

decision to exclude agents from Section 204’s command must

be respected."

C.

Plaintiff counters the above with a textual point of its own:

the sentence in Section 204’s first paragraph, which states that

disputes "may be referred . . . to an appropriate adjustment

board, as hereinafter provided." Id. § 184. Under plaintiff’s

interpretation of this language, air carriers and their employ-

ees are required to establish a multi-carrier, multi-union board

whenever it is "appropriate." Clearly, in plaintiff’s view, a

AIR LINE PILOTS v. US AIRWAYS GROUP 11

multi-carrier, multi-union board of adjustment is "appropri-

ate" when, as here, it is necessary to resolve the "entire dis-

pute . . . in a single proceeding." Transp.-Commc’n

Employees Union v. Union Pac. R.R. Co., 385 U.S. 157, 165

(1966) ("TCEU").

Plaintiff’s position, however, is once again in tension with

a fundamental canon of statutory interpretation. "[I]t is a com-

monplace of statutory construction that the specific governs

the general." Morales v. Trans World Airlines, Inc., 504 U.S.

374, 384 (1992). Here the term "appropriate" is a general term

lacking clear-cut content. It therefore cannot displace the

more specific language directly addressing the creation of a

group board, which provides that parties "may" create a group

board "by agreement." 45 U.S.C. § 184. Additionally, the

phrase "appropriate adjustment board" is immediately quali-

fied by the phrase "as hereinafter provided," thereby indicat-

ing that an "appropriate adjustment board" is simply one that

satisfies the requirements of Section 204 as described in the

two paragraphs that immediately follow. In other words, a

multi-employer, multi-union board is "appropriate" if the par-

ties voluntarily and contractually decide it is "appropriate."

In this regard, plaintiff’s reliance on TCEU is misplaced.

That case had nothing to do with whether a Section 204 board

of adjustment was "appropriate." In fact, it had nothing to do

with the creation of a board of adjustment at all. The case

dealt with arbitration in the rail industry in an already-existing

forum that indisputably had jurisdiction over a party. TCEU,

385 U.S. at 165. It did not purport to create a brand new

forum in the air industry that courts would infuse with juris-

diction in disregard of Section 204.

D.

Plaintiff claims finally that group boards are mandated in

the airline industry under Section 204 because they are man-

dated in the railroad industry under Section 3-First. That sec-

12 AIR LINE PILOTS v. US AIRWAYS GROUP

tion allows railroads and their employees to request

arbitration by the National Railroad Adjustment Board

("NRAB"), a multi-carrier, multi-union board for the entire

rail industry. 45 U.S.C. § 153-First. And plaintiff argues that

Congress intended the dispute resolution mechanisms for the

rail and air industries to be functionally equivalent, quoting

the Supreme Court’s language in Central Airlines that Con-

gress’s "general aim was 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. Central Airlines, Inc., 372 U.S. 682, 685 (1963) (emphasis

added).

This view, however, overlooks the statutory language and,

moreover, it overstates Central Airlines. These sources make

abundantly clear that although Congress may have intended

the dispute resolution machinery to be roughly similar for the

air and rail industries, it did not intend for them to be per-

fectly identical. Indeed, quite the opposite.

Section 3-First of the RLA applies only to the railroad

industry. As plaintiff correctly points out, it establishes the

NRAB, a national board of adjustment composed of numer-

ous rail carriers and unions, with such jurisdiction over those

parties as is necessary to decide disputes through arbitration.

See 45 U.S.C. § 153-First. The remainder of Section 3-First

carefully delineates the composition, functioning, and rules of

the NRAB. Id.

In the airline industry, there is no comparable provision to

Section 3-First. There is nothing that establishes a national

board of adjustment made up of numerous air carriers and

pilots’ unions. In fact, in extending the RLA to air carriers,

Congress specifically decided not to create a national board.

Instead, Congress included a provision that authorized the

National Mediation Board to establish the National Air Trans-

port Adjustment Board ("NATAB") when and if in its judg-

AIR LINE PILOTS v. US AIRWAYS GROUP 13

ment such a body became necessary. See id. § 185. Section

205 states:

When, in the judgment of the National Mediation

Board, it shall be necessary to have a permanent

national board of adjustment in order to provide for

the prompt and orderly settlement of disputes

between said carriers by air, or any of them, and its

or their employees, . . . the National Mediation

Board is empowered and directed . . . to . . . consti-

tute a board which shall be known as the "National

Air Transport Adjustment Board."

Id. To date, the NATAB has not been established.

This view is entirely consistent with the Supreme Court’s

holding in Central Airlines. Central Airlines recognized that

there was a "significant variation" between the rail industry

and the airline industry: With regard to the airline industry,

Congress deliberately chose to delay indefinitely the creation

of a national adjustment board. Int’l Ass’n of Machinists v.

Central Airlines, Inc., 372 U.S. 682, 685-86 (1963). As the

Court explained, "[i]n the place of § 3, Congress provided in

§ 205, 45 U.S.C. § 185, that the creation of a National Air

Transport Board would be postponed until ‘in the judgment of

the National Mediation Board, it shall be necessary to have a

permanent national board of adjustment.’" Id. The Court went

on to clarify that "[u]ntil the establishment of the national

board for the airlines industry, § 204, 45 U.S.C. § 184,

required the formation of system, group, or regional boards of

adjustment." Id. at 686 (emphasis added); see also id. ("Until

and unless the National Mediation Board determined to create

a national board, the parties were placed under the statutory

duty of establishing and utilizing system, group, or regional

boards of adjustment.") (emphasis added).

If the National Mediation Board believes that disputes in

the airline industry have become too unruly for system, i.e.,

14 AIR LINE PILOTS v. US AIRWAYS GROUP

single-carrier, boards to handle, Section 205 expressly autho-

rizes it to establish the NATAB and alleviate for the entire

industry any problems associated with system boards. 45

U.S.C. § 185. Once established, the NATAB may adjudicate

any disputes "if any system, group, or regional board of

adjustment . . . is not satisfactory to [air carriers or their

employees]." Id. Moreover, like Section 204, Section 205

eliminates the need for courts to direct the board’s operation,

because Section 205 sufficiently outlines the NATAB’s pro-

cedures and functioning, including the number of its mem-

bers, the method for adopting its procedures, and the

parameters of its jurisdiction. Id.

In light of Congress’s clear decision to postpone the cre-

ation of a multi-employer, multi-union board in the airline

industry, courts can hardly hasten the day by invoking some

generalized notion that identical procedures extend to the

employees of every transportation sector.2

2

Plaintiff also invokes the "duty [on] all carriers, their officers, agents,

and employees to exert every reasonable effort to . . . settle all disputes"

under Section 2-First. 45 U.S.C. § 152-First. The plaintiff claims that par-

ticipating in the establishment of a multi-party adjustment board to resolve

a multi-party dispute is a requisite "reasonable effort" within the meaning

of Section 2-First. The general duty of Section 2-First, however, may not

displace the more specific requirements of Section 204. Section 204 is the

most precise provision governing the establishment of adjustment boards

in the airline industry, and the general duty articulated in Section 2-First

therefore may not supplant its specific dictates.

Moreover, the parties did in fact negotiate over the potential creation of

a group adjustment board. After the flow-through dispute began, the par-

ties bargained back and forth for awhile; the plaintiff proposed the idea of

a group board; the defendants expressed a number of concerns over it,

including a worry about the inability of the two unions to present a unified

position; and ultimately, the negotiations did not produce a group board.

The simple fact that the parties did not produce a group board is not tanta-

mount to bad faith. A "reasonable effort" does not, ipso facto, necessitate

the creation of a multi-employer, multi-union board of adjustment. Man-

dating such boards as a matter of law under Section 2-First would fly in

the face of Section 204’s plain text, which contains no such requirement.

AIR LINE PILOTS v. US AIRWAYS GROUP 15

III.

Finally, we consider the plaintiff’s effort under Virginia

state law to require Group to arbitrate. Specifically, plaintiff

alleges that Group made binding commitments to arbitrate in

several collective bargaining agreements and that its refusal to

arbitrate therefore constitutes breach of contract. As an initial

matter, we note that the defendants, and even the plaintiff

itself, raise the real possibility that this state law claim is pre-

empted by the federal law requirements of the RLA. See

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246 (1994);

Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320

(1972). Even on the merits, however, the state law claim fails.

A.

Plaintiff first argues that Group has a contractual commit-

ment to arbitrate under Letter of Agreement 8 ("LOA 8"), an

agreement entered into by PSA and ALPA but not by Group.

Section 9 of LOA 8, entitled "Dispute Resolution Proce-

dures," subjects a limited category of disputes to arbitration.

However, LOA 8 does not require Group to participate in

such arbitration, stating that "[t]he parties to the Dispute Res-

olution Procedures will be US Airways, PSA and ALPA, rep-

resenting the pilots of US Airways and the PSA Carriers."

Plaintiff argues that Group is nonetheless bound to arbitrate

under LOA 8 because a later paragraph of Section 9 allows

Group, along with ALPA, to play a role in the selection of an

arbitrator, providing: "Group and ALPA may each sequen-

tially strike a name from this list [of potential arbitrators] and

the remaining neutral shall hear and decide the dispute." It

would be novel indeed, however, to hold that such a selection

provision somehow bound Group to arbitrate when it never

even signed the agreement and was never listed as a party to

arbitration. Accordingly, we hold that Group has no contrac-

tual duty to arbitrate under LOA 8.

16 AIR LINE PILOTS v. US AIRWAYS GROUP

B.

The plaintiff also contends that Letter of Agreement 50

("LOA 50") binds Group to arbitration. This brief, three-

paragraph letter was signed in 1997 by Group, Airways, and

ALPA and references "Section 1" of another collective bar-

gaining agreement involving Airways and ALPA, which the

plaintiff alleges created the flow-through rights. The relevant

sentence of LOA 50 states that "any disputes between ALPA

and [ ] Group and/or [ ] Airways which arise out of grievances

or out of interpretation or application of this letter or Section

1 of the Agreement will be subject to determination through

final and binding arbitration . . . before the ALPA-[ ]Airways

Pilots’ System Board of Adjustment."

This single statement in LOA 50, however, does not war-

rant the extraordinary relief that the plaintiff seeks. To begin,

LOA 50 is limited to disputes arising under the letter itself or

Section 1 of a collective bargaining agreement, both of which

were entered into by ALPA on behalf of the pilots of Air-

ways, and not on behalf of the pilots of Piedmont or PSA, on

whose behalf it now brings this lawsuit. The value of LOA 50

for the Piedmont and PSA pilots in this case is therefore dubi-

ous. See Fairbairn v. United Air Lines, Inc., 250 F.3d 237,

243 (4th Cir. 2001). LOA 50, moreover, requires arbitration

only before a single-carrier board of adjustment: the ALPA-

Airways system board. It accordingly cannot require the

multi-employer, multi-union arbitration that the plaintiff now

claims is so crucial.

C.

Finally, the plaintiff alleges that Group has an implied

agreement to arbitrate, suggesting that Group’s conduct in

entering into contracts subject to arbitration under the RLA

evinces an intent to arbitrate the flow-through dispute here.

While some courts have found an agreement to arbitrate

"implied from the party’s conduct," Gvozdenovic v. United

AIR LINE PILOTS v. US AIRWAYS GROUP 17

Air Lines, Inc., 933 F.2d 1100, 1105 (2d Cir. 1991), those

cases have been limited to instances where the party’s con-

duct demonstrated a "clear intent to arbitrate the dispute,"

based, for example, on its "active and voluntary participation

in the arbitration." Id. Here, by contrast, Group has by no

means shown a "clear intent" to arbitrate. It has not partici-

pated in arbitration of the flow-through dispute, and the plain-

tiff has suggested nothing indicating its willingness to do so.

We therefore find no implied agreement to arbitrate.

IV.

Arbitral obligations are important, but they do not arise

from thin air. The duty to arbitrate is a product of statutory

directive or contractual commitment. Plaintiff seeks some-

thing more—the creation in the first instance of major arbitral

ground rules and obligations by a court. For the foregoing rea-

sons, we decline the invitation and affirm the judgment of the

district court.

AFFIRMED