Association of Flight Attendants, Cwa, Afl-Cio v. Mesa Air Group, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ASSOCIATION OF FLIGHT 

ATTENDANTS, CWA, AFL-CIO,

No. 07-17232

Plaintiff-Appellee,

D.C. No.

v.

 CV-07-00921-PHX-

MESA AIR GROUP, INC.; MESA ROS

AIRLINES, INC.; FREEDOM AIRLINES

OPINION

INC.; GO AIRLINES, INC.,

Defendants-Appellants.



Appeal from the United States District Court

for the District of Arizona

Roslyn O. Silver, District Judge, Presiding

Argued and Submitted

February 11, 2009—Stanford, California

Filed June 1, 2009

Before: Dorothy W. Nelson, William A. Fletcher and

Richard C. Tallman, Circuit Judges.

Opinion by Judge William A. Fletcher

6511

AFA v. MESA AIR GROUP 6513

COUNSEL

Edward Gilmartin, Deirdre E. Hamilton, ASSOCIATION OF

FLIGHT ATTENDANTS-CWA, AFL-CIO, Washington,

6514 AFA v. MESA AIR GROUP

D.C., Michael J. Keenan, WARD, KEENAN & BARRETT,

Phoenix, Arizona, for the plaintiff-appellee.

Joseph L. Manson, III, Marc A. Antonetti, BAKER &

HOSTETLER, LLP, Washington, D.C., Stephanie J. Quincy,

Bennett Evan Cooper STEPTOE & JOHNSON, LLP, Phoe-

nix, Arizona, for the defendants-appellants.

OPINION

W. FLETCHER, Circuit Judge:

Defendant Mesa Airlines (“Mesa”) appeals the grant of a

preliminary injunction in favor of Plaintiff Association of

Flight Attendants (“AFA”). AFA and Mesa are parties to col-

lective bargaining agreements (“CBAs”) that have expired.

They are now in the process of bargaining for new agree-

ments. AFA brought this suit after Mesa changed the applica-

ble Federal Aviation Administration (“FAA”) regulations

(“FARs”) for its scheduling of flight attendants. Previously,

Mesa had used those designed for flight crews; after the

change, it used those designed for flight attendants.

AFA contends that the Railway Labor Act (“RLA”), 45

U.S.C. § 151 et seq., prevents Mesa’s unilateral change to the

union’s status quo working conditions. It contends that its dis-

agreement with Mesa over the change is a “major dispute”

within the meaning of the RLA, and that it may therefore seek

an injunction in federal district court against the change. Mesa

contends that the terms of the parties’ CBAs permit it to make

the change, and that its disagreement with AFA is a “minor

dispute” within the meaning of the RLA for which the exclu-

sive remedy is binding arbitration.

The district court held that the disagreement is a major dis-

pute and granted a preliminary injunction against Mesa. Mesa

AFA v. MESA AIR GROUP 6515

has brought an interlocutory appeal over which we have

appellate jurisdiction under 28 U.S.C. § 1292(a)(1). We hold

that the dispute is a minor dispute within the meaning of the

RLA. We therefore vacate the preliminary injunction and

remand to the district court with directions to dismiss for lack

of subject matter jurisdiction.

I. Background

AFA and Mesa are parties to two CBAs that ran through

June 13, 2006. The CBAs set forth the parties’ rights and obli-

gations with respect to the employment of AFA members by

Mesa. Under an RLA-mandated process, the parties have been

in negotiations and mediation to replace these CBAs. Until

new CBAs can be agreed upon, the old CBAs have continued

in effect, as mandated by Section 6 of the RLA. 45 U.S.C.

§ 156.

This case arises out of a dispute over the application of

FAA regulations to the scheduling of flight attendants. The

FAA has promulgated regulations limiting the allowable work

schedules for various airline employees, titled “Flight Time

Limitations and Rest Requirements,” or FARs. The regula-

tions include FARs for flight crewmembers, 14 C.F.R.

§ 121.471 (“Pilot FARs”), and flight attendants, id. § 121.467

(“Flight Attendant FARs”). The Flight Attendant FARs per-

mit an airline to schedule its flight attendants according to

either the guidelines established in the Flight Attendant FARs

or those in the Pilot FARs. Id. § 121.467(c).

During the duration of the CBAs, from 1995 through 2006,

Mesa scheduled its flight attendants in accordance with the

Pilot FARs. On September 19, 2006, AFA presented a pro-

posal to Mesa seeking to amend the CBAs by incorporating

specific duty time and rest provisions in the contracts. Mesa

rejected this proposal. In 2007, Mesa unilaterally adjusted

scheduling for flight attendants to accord with the Flight

Attendant FARs rather than the Pilot FARs.

6516 AFA v. MESA AIR GROUP

AFA filed suit under the RLA to enjoin Mesa from imple-

menting this change until bargaining had been exhausted.

Mesa filed a motion to dismiss for lack of subject matter juris-

diction, which the district court denied on October 1, 2007.

Mesa filed a motion to reconsider on October 16, 2007, pre-

senting new evidence on the question of subject matter juris-

diction. The district court granted AFA’s motion for a

preliminary injunction on October 17, 2007, and denied

AFA’s motion for reconsideration on December 13, 2007.

The district court held that the CBAs contain an implied term

that applies the Pilot FARs to flight attendants, and that Mesa

cannot now unilaterally alter this term.

Mesa filed this interlocutory appeal.

II. Standard of Review

We review de novo, as a question of law and of subject

matter jurisdiction, whether a dispute is major or minor under

the Railway Labor Act. Polich v. Burlington N., Inc., 942

F.2d 1467, 1469 (9th Cir. 1991); Air Line Pilots Ass’n, Int’l

v. Alaska Airlines, Inc. (“Alaska Airlines”), 898 F.2d 1393,

1395 (9th Cir. 1990). We also review de novo the construc-

tion of a CBA. Carpenters Health & Welfare Trust Fund for

Cal. v. Bla-Delco Constr., Inc., 8 F.3d 1365, 1367 (9th Cir.

1993).

III. Discussion

[1] Labor relations between Mesa and AFA are governed

by the RLA. The RLA mandates a long process of negotiation

and mediation before unions and common carriers are permit-

ted to use their various economic weapons to pressure the

other side to reach an agreement. 45 U.S.C. § 151 et seq. As

relevant to this case, the RLA provides two separate dispute

resolution procedures that the parties to a labor negotiation

can invoke during the negotiation process. Consol. Rail Corp.

v. Ry. Labor Executives’ Ass’n (“Conrail”), 491 U.S. 299,

AFA v. MESA AIR GROUP 6517

302-04 (1989). One set of procedures applies to what are

labeled “major disputes” between the parties. The other set

applies to what are labeled “minor disputes.” Id.

[2] Major disputes generally result from attempts by labor

or management to impose new obligations or create new

rights. Id. at 302. Major disputes must be settled through an

extended bargaining process. Id. at 302-03. Federal district

courts may issue injunctions to freeze the status quo during

the bargaining process over such disputes. Id. at 303; Alaska

Airlines, 898 F.2d at 1396. Minor disputes, on the other hand,

generally result from attempts to enforce existing contractual

obligations and rights. Conrail, 491 U.S. at 302; Alaska Air-

lines, 898 F.2d at 1396. Such disputes are subject to exclusive

binding arbitration before the National Railroad Adjustment

Board. Conrail, 491 U.S. at 303-04; Alaska Airlines, 898 F.2d

at 1396.

When a dispute is minor, the parties have no duty to main-

tain the status quo. Bhd. of Locomotive Eng’rs v. Burlington

N. R.R., 838 F.2d 1102, 1111 (9th Cir. 1988) (Pregerson, J.,

concurring). Minor disputes are not necessarily unimportant

or insignificant. Indeed, minor disputes can involve disagree-

ments of great practical or economic significance. Int’l Bhd.

of Teamsters v. Sw. Airlines Co., 875 F.2d 1129, 1133 (5th

Cir. 1989) (en banc).

The Supreme Court has elaborated on the distinction

between major and minor disputes. Minor disputes

contemplate[ ] the existence of a collective agree-

ment already concluded or, at any rate, a situation in

which no effort is made to bring about a formal

change in terms or to create a new one. The dispute

relates either to the meaning or proper application of

a particular provision with reference to a specific sit-

uation or to an omitted case. In the latter event the

claim is founded upon some incident of the employ-

6518 AFA v. MESA AIR GROUP

ment relation, or asserted one, independent of those

covered by the collective agreement, e.g., claims on

account of personal injuries. In either case the claim

is to rights accrued, not merely to have new ones

created for the future.

Conrail, 491 U.S. at 303 (quoting Elgin, Joliet & E. Ry. Co.

v. Burley, 325 U.S. 711, 723 (1945)).

[3] The distinction between major and minor disputes

“looks to whether a claim has been made that the terms of an

existing agreement either establish or refute the presence of a

right to take the disputed action. The distinguishing feature of

such a case is that the dispute may be conclusively resolved

by interpreting the existing agreement.” Id. at 305. When “an

employer asserts a contractual right to take the contested

action, the ensuing dispute is minor if the action is arguably

justified by the terms of the parties’ collective-bargaining

agreement. Where, in contrast, the employer’s claims are friv-

olous or obviously insubstantial, the dispute is major.” Id. at

307. The burden to establish that an action is “arguably justi-

fied” by the terms of the CBA is “relatively light.” Id. When

in doubt, courts construe disputes as minor. Bhd. of Locomo-

tive Eng’rs, 838 F.2d at 1111.

We hold that Mesa has carried its burden to show that its

action is “arguably justified” by the terms of the existing

CBAs. We therefore hold that the dispute is minor and subject

to the exclusive arbitral remedy of the RLA.

[4] The CBAs at issue refer only to “the F.A.R.s” or “the

applicable FAR maximum.” The provisions within the CBAs

do not explicitly establish which of the two FARs is to be

applied to flight attendant schedules. Residual authority

clauses in the CBAs provide that “the Company retains all

authority and rights to manage its operations and direct its

Flight Attendants work force” to the extent not “expressly

restricted by the CBA.” “Management rights” clauses in the

AFA v. MESA AIR GROUP 6519

CBAs reserve to Mesa “without limitation” the right to “es-

tablish and, from time to time, amend, suspend or revoke

rules, regulations and procedures . . . [and] to establish new

routes, services, schedules and areas of service.”

Mesa argues that the ambiguity in the CBAs over which

FARs apply to flight attendant schedules, combined with the

explicit delegation of residual and management powers to the

employer, gives Mesa the authority to change the applicable

FARs unilaterally. Mesa supports this argument with testi-

mony of Patricia Dravis, who negotiated one of the CBAs on

behalf of AFA. Dravis testified that she believed the CBA

gave Mesa the authority to switch from the Pilot FARs to the

Flight Attendant FARs without consent of the AFA.

[5] Two other circuits have held in similar circumstances

that the existence of a broad management rights clause is

enough to create an “arguable” question of contract interpreta-

tion when a CBA does not explicitly establish rules or policies

governing working conditions. In Airline Professionals Ass’ns

of the International Brotherhood of Teamsters, Local Union

No. 1224, AFL-CIO v. ABX Air, Inc., 274 F.3d 1023 (6th Cir.

2001), management unilaterally imposed a policy of random

searches of employees in order to prevent theft. The union

objected to these searches, eventually filing suit in federal

court seeking an injunction against implementation of this

policy. The Sixth Circuit held that, although “random

searches are not specifically addressed by the collective bar-

gaining agreement,” the CBA gave management “discretion

with respect to the hiring, firing, promoting, supervising,

planning, and other management functions, except as limited

by the collective bargaining agreement and public law.” Id. at

1029. Thus, it was “at least arguable that the implied terms of

the agreement permit [management] to unilaterally implement

random searches.” Id.

[6] In International Brotherhood of Teamsters v. Southwest

Airlines Co., 875 F.2d 1129 (5th Cir. 1989) (en banc), man-

6520 AFA v. MESA AIR GROUP

agement unilaterally implemented a detailed drug and alcohol

testing policy. The Fifth Circuit held that “[o]n its face” a

clause providing that employees “shall be governed by all

Company rules, regulations and orders” not in conflict with

the terms of the agreement “at least arguably grants manage-

ment the right to enforce its policy by unilaterally promulgat-

ing rules, regulations, and orders” to govern employees. Id. at

1135. Both of these decisions reinforce our view that the man-

agement rights clauses in the CBAs here arguably provide

justification for Mesa to unilaterally interpret and apply the

ambiguous contractual language concerning the FARs.

AFA makes two arguments. First, it argues that, because

the Pilot FARs are the status quo working conditions under

which Mesa’s flight attendants operated, they cannot be

changed unilaterally by management. AFA relies on Detroit

& Toledo Shore Line Railroad v. United Transportation

Union (“Shore Line”), 396 U.S. 142 (1969). In Shore Line,

however, neither party made an argument based on the terms

of a CBA. Id. at 147-48. Instead, management had changed

longstanding working conditions, and the union contended

that this arguably changed the status quo. Id. Management

responded by contending that the status quo was not incorpo-

rated in any CBA, and that the union was therefore not enti-

tled to an injunction to prevent management from making the

change. Id. The Court held that, in the absence of any conten-

tion based on the CBA from either side, the union could seek

an injunction preventing management from changing the prior

practice. Id.

AFA relies upon Shore Line to argue that any status quo

working condition — whether covered by a CBA or not — is

protected by the RLA from unilateral change by management,

and that federal courts can enjoin management from making

such a unilateral change. We do not read Shore Line so

broadly. AFA’s interpretation of Shore Line would eliminate

any distinction between major and minor disputes in cases

where the union contends that management’s action violates

AFA v. MESA AIR GROUP 6521

established practice, including cases where the CBA arguably

(or even clearly) allows management to change the status quo.

AFA’s argument also ignores the Supreme Court’s decision

in Conrail. In that case, the union relied on Shore Line to

make an argument similar to AFA’s argument in this case.

The union argued that the RLA “provides a status quo obliga-

tion applicable to all minor disputes.” Conrail, 491 U.S. at

304 n.5. The Court rejected this argument, holding that in the

case of minor disputes there is no “general statutory obliga-

tion on the part of an employer to maintain the status quo

pending the Board’s decision.” Id. Before a federal court can

even reach the analysis in Shore Line — that is, before a court

can decide whether something is an established practice pro-

tected by the status quo — it must find that the disagreement

in the case is a major dispute. We do not read Conrail to over-

rule Shore Line on this point.

Second, AFA argues (and the district court agreed) that the

application of the Pilot FARs to flight attendant schedules

constitutes an implied term of the CBAs. This argument

depends on a conclusion that the CBAs unambiguously con-

tain such an implied term. The existence of such an implied

term, if conclusively proven, would indeed prevent Mesa

from changing from the Pilot FARs to the Flight Attendant

FARs. However, the existence of such an implied term is not

clearly established in the record of this case. Therefore, the

existence of such a term is a matter of contractual interpreta-

tion that the RLA leaves exclusively to the National Railroad

Adjustment Board.

[7] The district court found that “[a] thirteen-year history of

consistently relying on the Pilot FARs qualifies as an ‘estab-

lished and recognized custom between the parties.’ ” In so

finding, the district court relied on Brotherhood Railway Car-

men v. Missouri Pacific Railroad (“Carmen”), 944 F.2d 1422,

1429 (8th Cir. 1991). However, Carmen actually suggests the

opposite result. In Carmen, the employer argued that a dispute

6522 AFA v. MESA AIR GROUP

was “arguably justified” by the terms of a contract on the

ground that past practices could create an implied term in the

agreement. Id. at 1426. The Eighth Circuit wrote that implied

terms can arise in CBAs through past practices. Id. at 1429

(“It is well established that collective bargaining agreements

may include implied as well as express terms.”). But it held

that in the case before it, the existence of such an implied

term was debatable and should therefore be decided in arbitra-

tion. Id. (“While it is indeed arguable that practices involving

other types of rail cars at other locations may not establish

implied agreements covering the repair of freight cars at the

locations at issue, the opposite surely is also arguable.”). The

case before us appears in the same posture. Past practices

under the CBAs may or may not have created an implied

term, and there is evidence to support contentions on both

sides. The existence of an implied term is therefore arguable

and must be decided in arbitration.

Conclusion

Mesa has carried its burden of showing that its change from

the Pilot FARs to the Flight Attendant FARs was arguably

justified by the CBAs. Therefore, this dispute is minor within

the meaning of the RLA, and must be decided in arbitration

before the National Railroad Adjustment Board.

We VACATE the district court’s preliminary injunction

and REMAND to the district court with direction to DIS-

MISS for lack of subject matter jurisdiction.