Petition for Writ of Certiorari — Mitchell v. Continental Airlines, Inc. (No. 06-1626)
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Sn The
Supreme Court of the Gnited States
a
MARILYN MITCHELL, KEVIN BALE,
AND SUSAN BOORSTEIN,
Petitioners,
V.
CONTINENTAL AIRLINES, INC. AND
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS,
Respondents.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit
+
PETITION FOR A WRIT OF CERTIORARI
¢
STUART M, NELKIN*
CAROL NELKIN
JAY P. NELKIN
NELKIN & NELKIN, P. C.
5417 Chaucer
Houston, TX 77005
713-526-4500
“Counsel of Record Attorneys for Petitioners
COOKLE LAW BRIEF PRINTING CO) si 225-6964
OR CALL COLLECT 102) 342 283)
QUESTIONS PRESENTED
Whether employees covered by the RLA must al-
lege unfair representation by their union as a
prerequisite to obtaining district court review of
the award of a Railway Labor Act Board despite
express language in the RLA authorizing any
employee aggrieved by the terms of an award of
the Board to file suit.
What constitutes “due notice” as required by
§ 153 First (j) of the RLA.
Whether employees subject to the RLA must ex-
haust administrative remedies in order to attack
a decision of an RLA Board rendered without no-
tice to the employees.
Whether employees subject to the RLA may as-
sert independent claims under the Constitution
for denial of due process when the deprivation of
rights related to actions by an RLA Board.
LIST OF PARTIES
The parties below are listed in the caption of the case.
ili
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .......cccccscscoscccsscsssescssscasessees i
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TR OE FAT Te EM one csccnecccccessccsccvecsssecesescosssess vi
EE Gl FAR OI vs ecencncsncesceneenesesccciensacenaccnnccass xii
TO ss cctateniiaeaanbacioeh 1
STATEMENT OF JURISDICTION ..................cccccsseeeees 1
STATUTORY AND CONSTITUTIONAL PROVISIONS
a eaeitaeaalipant hab 1
STAT ICMISINT OF TPUS CASES o...ccccccccccccsccsccossccncccncsensss 3
ic (oI SII cs cacancaecaiensssnecbaednsatiaxdassdeeks 5
I I a culinanedinad 6
Oe, PE TR oa ead 7
REASONS FOR ALLOWANCE OF THE WRIT ........... 9
I REVIEW IS WARRANTED TO RESOLVE
CONFLICTS REGARDING WHETHER EM-
PLOYEES MUST ESTABLISH UNFAIR
REPRESENTATION BY THEIR UNION AS A
PREREQUISITE TO OBTAINING JUDICIAL
REVIEW OF THE AWARD OF AN RLA
BOARD DESPITE EXPRESS LANGUAGE IN
THE RLA AUTHORIZING ANY EMPLOYEE
AGGRIEVED BY A BOARD AWARD TO FILE
RIE canbe eilsdinia Ritnneintaie tins scsied eiics tac ashi ieubkuieninedite 9
A. The Fifth Circuit Is The First Court Of
Appeals To Make Unfair Representation
By A Union A Prerequisite To Judicial Re-
view Of The Decision Of An RLA Board ..... 9
IT.
IT.
1V
TABLE OF CONTENTS — Continued
Page
B. The Fifth Circuit Decision Is Contrary To
The Plain Language Of The RLA................
C. The Fifth Circuit Decision Conflicts With
This Court And Other Circuits By Failing
To Recognize The Differences Between The
RLA And The NLRA And LMRA.................
D. The Fifth Circuit's Acknowledgment That
A Conflict Exists With The Third Circuit’s
Decision In McQuestion v. N.J. Transit
Rail Operations While Attempting To Dis-
tinguish That Case Underscores The
Breadth Of The Fifth Circuit’s Ruling And
Emphasizes The Need For Review By This
REVIEW SHOULD BE GRANTED TO RE-
SOLVE CONFLICTS REGARDING WHAT
CONSTITUTES “DUE NOTICE” UNDER
§ 153 FIRST (j) OF THE RLA.....cesssesssssessecsseeen
REVIEW SHOULD BE GRANTED TO RE-
SOLVE CONFLICTS REGARDING WHETHER
AN “AGGRIEVED” EMPLOYEE UNDER § 153
FIRST (q) OR AN “INVOLVED” EMPLOYEE
UNDER §153 FIRST Gg) MUST EXHAUST
REMEDIES PRIOR TO FILING SUIT................
REVIEW SHOULD BE GRANTED TO RE-
SOLVE A CONFLICT AMONG THE CIRCUITS
REGARDING WHETHER EMPLOYEES SUB-
JECT TO THE RLA MAY ASSERT CLAIMS
UNDER THE CONSTITUTION FOR DENIAL
OF DUE PROCESS WHEN THE DEPRIVA-
TION OF RIGHTS RELATES TO ACTIONS BY
SiS TEE ssitiasiccrcnsinieasasiinnsannsaysusninisntinnangies
13
16
18
22
TABLE OF CONTENTS -— Continued
Page
A. A Conflict Exists Among The Circuits Re-
garding Whether Employees Who Assert
Rights Under The RLA May Assert Inde-
pendent Claims Under The Due Process
Clause Of The Constitution................:s00 26
B. A Conflict Exists Among The Circuits As
To Whether Due Process Claims Are Cog-
nizable Under The Railway Labor Act It-
WEE wiinitbinindsineinsicincmiogienmets 29
II ssisviseanvsntninscdiinisnnscaeeentisyncheisisckabuulabguivanies 30
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Acuff v. United Papermakers & Paperworkers, 404
F.2d 169 (1968), cert. denied, 89 S.Ct. 1466 (1969) .. 9, 13
Air Line Pilots Ass’n Intern. v. Texas Intern. Air-
lines, Inc., 567 F. Supp. 66 (S.D. Tex. 1983) ................. 18
Allain v. Tummon, 212 F.2d 32 (7th Cir. 1954) ............... 21
Allen v. CSX Transportation, Inc., 22 F.3d 1180
eh MI ictus ica cticaniaibnixadesinsinkahsRcuianehediadssenanknernberdye 15
Armstrong Lodge No. 762 v. Union Pacific R.R., 783
a ee en SME ROPE iin éiascaxasccdtackinsissatcbinnctxaianceincons 29
Atchison, Topeka and Santa Fe Railway Co. v.
Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d
Re Nese aici cc icsase sastinacalacensakeiertacatiaisesannes 27, 28
Atchison, Topeka and Santa Fe Ry. v. United
Transp. Union, 175 F.3d 355 (5th Cir. 1999)........... 13, 29
Brock v. Republic Airlines, Inc., 776 F.2d 523 (5th
NN II Cia since chukka ivhbendaaagannieechhasiunehbekawniiacanneliihwanteas 10
Brotherhood of Locomotive Engineers v. St. Louis
Southwestern Ry. Co., 757 F.2d 656 (5th Cir.
Brotherhood of Railroad Trainmen v. Central of
Georgia Railway Company, 415 F.2d 403 (Sth
I I Sactb idlcnnas canals actin anessnicaaianesamya connie iabncicisanen 24
Brotherhood of Ry., Airline, and Steamship Cierks,
Freight Handlers, Express & Station Employees
v. St. Louis Southwestern Ry. Co., 676 F.2d 132
RN MII Sil cnknad cuba vckabudasednsneninceueankanckaeninasgbcbesinbhnads 19
Chandler v. American Airlines, Inc.,1992 WL 72955
SN NI REE TOR RUUD Sc chiccicinsadicaneviigniissdbcosnenesenveiavanhas 15
TABLE OF AUTHORITIES — Continued
Page
Chernak v. Southwest Airlines, Co., 778 F.2d 578
CI Re sate ice tacccatianrsnetnvcecniaamienntnamianniin 13
Cole v. Erie Lackawanna Ry., 541 F.2d 528 (6th Cir.
I itindihscishakiosiisncguinia isis onniciblectnsnandiaatanlladainiahaduions 20
Colletti v. N. J. Transit Corp., 2992 WL 1769006 (3d
Te IED cadiennsceaivicdcnsssacibdcadveenueeaciadincnees 15
Communications Workers of America v. Beck, 487
Se ee IE theses inn dtisincenictiiiahdiechssiseibanseohatie dedlanbiichin isi irwnanie 13
Continental Airlines, Inc. v. International Brother-
hood of Teamsters, 391 F.3d 613 (5th Cir. 2004),
cert. denied, 126 S.Ct. 331. (2005) ..........0csccccccorccssesereone 13
Coppinger v. Metro-North Commuter Railroad, 861
ee a REY ED cictsesitsisckinndieaechaulbniaianianniarsnnians 28, 29
Davila v. Delta Air Lines, Inc., 326 F.3d 1183 (11
Cir.), cert. denied, 540 U.S. 1016 (2008) ............... eee 15
Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60
RMIT SU TTES scsiniipasa-cnavaianindceciodineuenabinabibeanresdnbsinn 29
D’Elia v. New York, N.H. & H. R.R., 338 F.2d 701,
702 (2d Cir. 1964) (per curiam), cert. denied, 380
U.S. 978, 85 S.Ct. 1340, 14 L.Ed.2d 272 (1968)............ 29
Edwards v. Universal Parcel Service, Inc., 2001 WL
Fr TR Ce a GA Bian ikceccsstnssiestinsenetstnanscnces 10
Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 65
Bs ee icin kscickdascade naaciasniciiiendberstecaioiimaomciaseidans 21
Elmore v. Chicago & Illinois Midland Railway
Company, 782 F.2d 94 (7th Cir. 1986) ..............202 26, 27
English v. Burlington Northern Railroad Co., 18
Fen Pk CR Ba crits ckeccacsnuanéscaccnnicinans 20, 22, 27, 29
Finnerty v. Cowen, 508 F.2d 979 (2d Cir. 1974)................ 25
vill
TABLE OF AUTHORITIES — Continued
Page
Goff v. Dakota, Minnesota & E. R.R. Corp., 276 F.3d
ee ee Rr SE A chceinccanscpsicsaanniteraciaicaveiuninibionsdioniveanienene 29
Hall v. Eastern Air Lines, Inc., 511 F.2d 663 (5th
SIE NE eich cincahinshtasietadosqeesnianbivansepiannbninesadibniiinwnbinens 12, 29
Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 114
S.Ct. 2289, 129 L.Bd.2d 203 (1994) ............sescccccssssssssees 11
Hayes v. Western Weighing & Inspection Bureau,
S38 F.2d 1434 (Sth Cir, 1988).........sssscsccssrescsessssocssveees 29
Henry v. Delta Air Lines, 759 F.2d 870 (11th Cir.
a eb Nachclistntckade visi tdvepnibniaiuadaukcidisanunsdueaiociseltes 13, 15, 30
INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct.
ROOT |; OE Ec Be ABE (IOC) cvsisstissassssiievccnssvccovestescesensces 16
International Association of Machinists v. Central
Airlines, Inc., 372 U.S. 682, 83 S.Ct. 956, 10
a EE LRU esis ids ccineesnvahaceonabiiteduibusiebsiasedinsiis 11,12
International Brotherhood of Electrical Workers v.
Foust, 442 U.S. 42, 99 S.Ct. 2121 (1979) ........ eee ee cees 14
Jones v. Seaboard Sys. R.R., 783 F.2d 639 (6th Cir.
NET cis easakucdusic iis eiauceskiainbacecrcaeacutbanciauibeiaiiisadviiccinss 30
Kimross v. Utah Ry. Co., 362 F.3d 658 (10th Cir.
SUPP clatsniiiir nis iceuenpuaibe SbaiaieaiNG sa dasincapsiaakitmsecduamapiaaibedunsea ih edian 30
Landry v. Airline Pilots Association Intern. AFL-
CHP, Oi P.Be 406 (Gtk Cie. LOGO) ......0.ccccsececsccscscesccse00s 10
McNair v. United States Postal Service, 768 F.2d
ee Ey Sibi d cic inden nicinuicnishdetneinousonvadcendiel 9, 13,14
McQuestion v. New Jersey Transit Rail Operations,
Inc., 892 F.2d 352 (3d Cir. 1990) ............cccccccccccsccsess 16,17
Meeks v. Illinois Cent. Gulf R.R., 738 F.2d 748 (6th
SG ME ana taiaiteialit cininn sce casintannsdik eodeincasanianseuidarbuntciesenidinntane 22
TABLE OF AUTHORITIES — Continued
Page
O’Neill v. Public Law Bd. No. 550, 581 F.2d 692
CPi Coie BT avi cxccetaae a aeaiclasd aster ncinsececcscneeeee. 20, 21
Parsons v. Continental Airlines, Inc., 2007 WL
S TGAZS CTE Cae i ee i ontacccnvcsscsesiscvcccsssvsasiesss 15
Pokuta v. Trans World Airlines, Inc., 191 F.3d 834
CPi Cr Fe nc cae i eaheciscéanscicoveccesss 29
Radin v. United States, 699 F.2d 681 (4th Cir. 1983)....... 29
Rosen v. Eastern Air Lines, 400 F.2d 462 (5th Cir.
1968), cert. denied, 394 U.S. 959, 89 S.Ct. 1307,
FD 1c FE Be a i ish ascncieksnneatscesesccscsccsons. 29
Shafti v. PLC British Airways, 22 F.3d 59 (2d Cir.
SOD) wn ins cicccsicccccetecc cata ei erie iceivivoksesssesss 27, 29
Soileau v. Southwest Airlines Co., 2000 WL
1273394 (5th Cir, August 23, 2000) ............0cccssscsvecreeess 16
Steffens v. Brotherhood of Ry., Airline & SS.
Clerks, TOT F.2d 242 (7G Cit, TRB) .onn..ccccescscsscssccccccess 29
Stevens v. Teamsters Local 2707, Airline, Aerospace
and Allied Employees, 504 F. Supp. 332 (W.D.
2 TR) GARR SR ES EE 15
Steward v. Mann, 351 F.3d 1338 (11th Cir.
DOGS) wisnscsicueccnndinssnsieeeeeainlatmasesseuninn 11, 12, 18, 20, 25
Trial v. Atchison, Topeka & Santa Fe Railway Co.,
SOG Fee TI Ce Pe iiakekiensncrniccissccescecsecce.e0s.. 10
Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89,
99 S.Ct. 399, 58 L.Ed.2d 354 (1978) ..............cccceeeeee 15, 25
United Sies'workers ef Am. Local 1913 v. Union
R.R. Co., G48 F.2d 905 (Sd Cir. 1981)..............ccccccscsssess 30
TABLE OF AUTHORITIES - Continued
Page
CONSTITUTIONAL PROVISIONS
eens ec MIF ssickinciskccncssenns digesravapesasenssinesiions 2, 26 29
FEDERAL STATUTES
Be ED eth si rsinsansecocnnaticnsiuisieinisstnalitesaknciabamaube 1
Be NN a EE As chcatccconctitsepahdttenahadecasnenenadshadabanninaasicuasanaadae 26
I RPA ee sii sank eviatinnsskdciansniccainhasnica euerbonaban 1
ee sai ciicsicckcininitts tu catecaceiaanl 3, 9, 13, 14, 26
es AF EE daiesisandsacastclabosessanciacsddciphamosanen 3, 9, 13, 14, 26
Ee es ana aceine vgasnichacasicianiaiadeimmponainaatiaami 28, 29
BF ERE WO iiktiicnsinicdernninmionienbaneneiaial passim
Ne eae MINE siscnhssinconindeessnusaecaueaneabawnbandoaieakeenaea passim
PO RE ets ie OO BU Hi sichcnnicnintcasizcbenidcediccetanscieiaracensiehnaonanacialdieaiaal 3
BF Cea RR Ginsbs vias hssctinhatiaihaniduniphnkccindépneacoliaaniadielanta 12, 16
RULES OF THE UNITED STATES SUPREME COURT
TUONO: TAS siinccstninrisisnenidacedeactdiaenacinaniennas 1
SI TD sissies xiicnesiiaxsitn anniacecctipalnnibncocimouiambacteialdidedecbiieat iis xin ciated 1
MISCELLANEOUS
S. Rep. No. 1201 (1966), 1966 U.S. Code Cong. and
SRR; TOG i, BE sive hiacscsvinessicincauteanantaceented 12
TABLE OF APPENDICES
Page
Appendix A — Opinion of the United States Court of
Appeals for the Fifth Circuit dated March 7,
BITE sipilaseccavikoieris douselosatveictes iacctablaniukanticaden seblaubinbia App. 1
Appendix B - Memorandum Opinion and Order of
the United States District Court for the Southern
District of Texas dated and filed August 5, 2005 .... App.
Appendix C — Decision of the Chairman and Award
of the Board In the Matter of Arbitration be-
tween International Association of Machinists
District 142 and Continental Airlines, Inc. dated
eee tReet Ope eloke Diane rns eee App.
Appendix D —- Decision of the Chairman and Award
of the Board In the Matter of Arbitratiou be-
tween International Association of Machinists
District 142 and Continental Airlines, Inc. (not
Appendix E — Statutory and Constitutional Provi-
OUI URN OE wiisiisss txctncesscconterticvinmenihiuvenussccitiignes App.
Appendix F — Declaration of Marilyn Mitchell Islava .. App.
Appendix G — Declaration of Kevin Bale....................- App.
Apper ‘ix H — Declaration of Susan Boorstein............ App.
Appendix I — Declaration of Andrea Estelle............... App.
17
47
.o7
64
67
77
83
93
OPINION BELOW
The opinion of the United States Court of Appeals for
the Fifth Circuit is reported at 481 F.3d 225 (5th Cir.
2007). Appendix A. The Fifth Circuit affirmed the decision
of the United States District Court for the Southern
District of Texas which is reported at 2005 WL 2708192 (S.
D. Tex. August 5, 2005). Appendix B.
STATEMENT OF JURISDICTION
This Court’s jurisdiction is invoked under 28 U.S.C.
§ 1254(1).
The Fifth Circuit entered its judgment on March 7,
2007. Appendix A. No petition for rehearing or rehearing
en banc was filed. The present petition is timely filed
under 28 U.S.C. § 2101(c) and under Rules 13.1 and 30 of
this Court.
STATUTORY AND CONSTITUTIONAL
PROVISIONS INVOLVED
45 U.S.C. § 153 provides:
§ 153. National Railroad Adjustment Board
First. Establishment; composition; powers and
duties; divisions; hearings and awards; judicial
review
There is established a Board, to be known as the
“National Railroad Adjustment Board”, the members of
which shall be selected within thirty days after June 21,
1934, and it is provided —
* KK
(j) Parties may be heard either in person, by coun-
sel, or by other representatives, as they may respectively
elect, and the several divisions of the Adjustment Board
2
shall give due notice of all hearings to the employee or
employees and the carrier or carriers involved in any
disputes submitted to them.
* *
(q) If any employee or group of employees, or any
carrier, is aggrieved by the failure of any division of the
Adjustment Board to make an award in a dispute referred
to it, or is aggrieved by any of the terms of an award or by
the failure of the division to include certain terms in such
award, then such employee or group of employees or
carrier may file in any United States district court in
which a petition under paragraph (p) could be filed, a
petition for review of the division’s order. A copy of the
petition shall be forthwith transmitted by the clerk of the
court to the Adjustment Board. The Adjustment Board
shall file in the court the record of the proceedings on
which it based its action. The court shall have jurisdiction
to affirm the order of the division or to set it aside, in
whole or in part, or it may remand the proceeding to the
division for such further action as it may direct. On such
review, the findings and order of the division shall be
conclusive on the parties, except that the order of the
division may be set aside, in whole or in part, or remanded
to the division, for failure of the division to comply with
the requirements of this chapter, for failure of the order to
conform, or confine itself, to matters within the scope of
the division’s jurisdiction, or for fraud or corruption by a
member of the division making the order. The judgment of
the court shall be subject to review as provided in sections
1291 and 1254 of Title 28.
The United States Constitution, Amendment V
provides:
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the
3
land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any
person be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use,
without just compensation.
STATEMENT OF THE CASE
Petitioners are flight attendants employed by Conti-
nental Airlines, Inc. in a bargaining unit represented by
the International Association of Machinists and Aerospace
Workers. Petitioners filed suit in the Southern District of
Florida seeking to vacate two related decisions of an RLA
Board rendered May 17, 2002.
On August 5, 2005, following transfer to the Southern
District of Texas, the district court entered judgment for
Continental and the IAM. Although Petitioners properly
brought their claims under the provisions of the Railway
Labor Act, 45 U.S.C. § 151 et seg. and the fifth amend-
ment, the district court, relying solely on cases interpret-
ing the provisions of the National Labor Relations Act, 29
U.S.C. § 151 et seg. and the Labor Management Relations
Act, 29 U.S.C. § 141 et seq., found that Petitioners lacked
standing to sue due to their failure to allege a breach of
the duty of fair representation against the LAM. Appendix
B, App. 38-39.
Petitioners asserted before the Fifth Circuit, and they
assert here that the Railway Labor Act, which is applica-
ble to the airline industry,’ differs from the NLRA and
the LMRA in that the RLA specifically authorizes any
' In 1936, Congress extended the RLA to cover the air transporta-
tion industry. 45 U.S.C. §§ 157-159.
4
employee aggrieved by the decision of an RLA Board to
seek review in federal district court. 45 U.S8.C. § 153 First
(q). Despite the express language of the RLA granting
employees such as Petitioners the right to prosecute a suit
in federal court to vacate an RLA Board decision, the Fifth
Circuit held:
Today, we logically extend our holdings in
McNair and Acuff to RLA cases, concluding that
when a CBA that is formed pursuant to the RLA
establishes a mandatory, binding grievance pro-
cedure and gives the union the exclusive right to
pursue claims on behalf of aggrieved employees,
one whose employment is governed by the CBA
lacks standing to attack the results of the griev-
ance process in court, except only that an em-
ployee has standing to bring a claim of unfair
representation.
Appendix A, App. 16.
The proceedings before the Board whose decision
Petitioners sought to have vacated, were based upon the
grievances of six flight attendants, including Mitchell and
Bale. These grievances complained of Continental’s retro-
actively and arbitrarily adversely adjusting the particular
grievant’s non-competitive seniority dates.’ The individual
grievants also contended that Continental had control over
calculating the flight attendants’ non-competitive seniority
dates, but failed to properly monitor or correctly calculate
these dates. The Board found:
* Continental’s flight attendants accrue different types of seniority:
pay, vacation, jump seat and pass riding, bidding and company service
seniority. Bidding seniority was not adjusted and is not at issue. The
seniority involved in this case is “non-competitive seniority.” No posting
or regular communication regarding non-competitive seniority has ever
been afforded Continental’s flight attendants.
5
[A] careful record of when an individual re-
turned to work from a leave of absence for pur-
poses of his or her seniority was not always
maintained. Adjustment was made for periods of
inactivity taken by some individuals when they
returned to work, but not for others.
Appendix C, App. 53. The Board also found that in many
instances, flight attendants who raised questions about
their seniority dates then had their seniority adversely
adjusted. Appendix C, App. 50-51.
A. Petitioner Mitchell: Mitchell began flying for
Continental on February 25, 1969. For 27 years, that date
was used as Mitchell’s pass riding seniority date. In 1996,
Continental changed Mitchell’s pass riding seniority date
without her knowledge. When Mitchell asked why less
senior flight attendants were boarding a flight before her,
she learned that her jump seat and pass riding seniority
had been retroactively adjusted for a company-offered
leave that she had taken years earlier. Several other
retroactive adjustments of her seniority occurred without
Mitchell’s knowledge.
After many attempts, Mitchell was permitted by the
LAM to file a grievance complaining about the unjustified,
inaccurate retroactive adjustments of her seniority.
Mitchell’s grievance was denied at both the step one and
step two levels by Continental. During the pendency of the
* Since 1969, company-offered leaves have been offered to Conti-
nental’s flight attendants in seniority order to alleviate the impact of
overstaffing and base closings. Company-offered leaves benefit Conti-
nental by encouraging senior higher paid flight attendants to take
unpaid leave resulting in fewer junior flight attendants being fur-
loughed. In this manner, Continental lowers its costs by having lower
paid flight attendants on duty, and does not have to pay furlough pay to
its junior flight attendants as required by the CBA. Appendix A, App. 3-
4,n.2.
6
grievance, Continental advised Mitchell on August 8, 2000
that her seniority had once again been adversely adjusted,
although she had not taken any other leaves of absence.
Mitchell attended both days of the Board hearing.
During a short recess on the second day of the hearing,
IAM’s attorney told Mitchell for the first time that she
would have to present her grievance by herself. When the
hearing reconvened, Mitchell was called to present her
claims. Mitchell was extremely upset and told the Board
members that she was not an attorney, and did not know
how to proceed. Despite the obvious lack of fairness, no
member of the Board did anything to intervene. Continen-
tal’s attorney was permitted to cross examine Mitchell who
was left with no one to object to improper questions.
Appendix F, App. 67-71; 73-74; Appendix I, App. 95-96.
B. Petitioner Bale: Bale was hired by Continental
as a flight attendant on July 1, 1987. In 1991, Bale ac-
cepted a company-offered leave. Continental did not advise
Bale or its other flight attendants that it would adjust the
service dates of those who accepted this company-offered
leave.
In 1993, Continental asked for volunteers to take
company-offered leave. Bale took 5 months of company-
offered leave at that time. The CBA in effect when Bale
took the company-offered leave did not indicate that a
flight attendant accepting a company-offered leave would
have his or her seniority adjusted as a result.‘ In 1994,
Bale took 2 months of company-offered leave. In 1995,
* Language indicating that a flight attendant’s seniority would be
adjusted for taking a company-offered leave does not appear in any
CBA until 1996.
Bale took his last company-offered leave which lasted 5
months.
Under the CBA, Bale should have received an addi-
tional week of vacation in July 1997 on his tenth anniver-
sary with Continental. When he did not receive this
additional week of vacation, he inquired, and was told he
would obtain the ten year vacation seniority date the
following year. However, when he inquired about the extra
week of vacation in 1998, he was told that his vacation
seniority date had been adversely adjusted again, even
though he had not taken any leave since 1995. On August
15, 2000, Bale filed grievances complaining of unfair
adjustment of his seniority. His grievances were denied at
the step one and step two levels.
Bale was given very little notice that the Board
hearing would take place. During his testimony, Bale was
stunned when, without warning to him, counsel for [AM
told the Board that Bale had filed grievances which the
IAM did not support, and that Bale would be presenting
those grievances on his own behalf. Bale was not prepared
to do so either by training or by having been given any
notification that it would be his responsibility to present
his grievance on his own.
Although it was apparent that Bale was surprised by
the actions of LAM’s attorney, the Board took no action to
prevent Bale’s being required to present his own griev-
ance. Appendix G, App. 77-82; Appendix I, App. 94-95.
C. Petitioner Boorstein: Boorstein began working
for Continental as a flight attendant on November 11,
1968. Over the years, Boorstein had taken several com-
pany-offered leaves but was unaware that her seniority
dates could be adjusted for taking such leave. Boorstein
did not know that her seniority had been adjusted until
less senior flight attendants were permitted to board a
flight ahead of her. When Boorstein inquired, she was told
for the first time that her seniority date had been adjusted
to a date in 1971.
Boorstein was not a party to the Board proceedings
discussed above. However, sometime after May 17, 2002,
Boorstein learned that the Board had issued a Decision
and Award that affected her seniority rights and those of
all other Continental flight attendants. Boorstein was not
given notice of the scheduled hearing prior to the hearing,
nor was she afforded any opportunity to present testimony,
seek relief, or otherwise participate in the Adjustment
Board proceedings.
When Boorstein read the Board’s Decision, she discov-
ered that, under its terms, a flight attendant would have
the responsibility to prove, without adequate access to the
information necessary, that her non-competitive seniority
had been retroactively adjusted during the two year period
prior to May 17, 2000. Boorstein and the other flight
attendants were advised by Continental and IAM that
anyone making a claim under the Board’s Decision was
subject to having Continental make adverse adjustments
to his or her seniority dates. Boorstein knew that obtain-
ing documents from Continental’s HR Department was
extremely difficult, and because she was aware that most
flight attendants who attempted to obtain their records or
otherwise inquired about their seniority dates were
subjected to arbitrary adverse adjustments of those dates,
Boorstein was too frightened to file a claim seeking to have
her seniority restored. Based upon her prior experiences
with Continental’s HR Department, Boorstein had a well
grounded belief that the only result of her attempting to
comply with the Board’s Decision would be that her
seniority dates would again be adversely adjusted. Appen-
dix H, App. 83-85.
9
REASONS FOR ALLOWANCE OF THE WRIT
I. REVIEW IS WARRANTED TO RESOLVE CON-
FLICTS REGARDING WHETHER EMPLOYEES
MUST ESTABLISH UNFAIR REPRESENTA-
TION BY THEIR UNION AS A PREREQUISITE
TO OBTAINING JUDICIAL REVIEW OF THE
AWARD OF AN RLA BOARD DESPITE EX-
PRESS LANGUAGE IN THE RLA AUTHORIZ-
ING ANY EMPLOYEE AGGRIEVED BY A
BOARD AWARD TO FILE SUIT.
A. The Fifth Circuit Is The First Court Of Ap-
peals To Make Unfair Representation By A
Union A Prerequisite To Judicial Review Of
The Decision Of An RLA Board.
The Fifth Circuit has now held for the first time in the
lengthy history of the RLA that where a CBA under the
RLA creates a mandatory binding grievance procedure
giving the union the exclusive right to represent employ-
ees in the grievance process, employees covered by the
CBA lack standing to attack the results of the grievance
process in court unless the employees bring a claim of
unfair representation against the union. In reaching this
opinion, the Fifth Circuit acknowledges that it has for the
first time extended its holdings in McNair v. United States
Postal Service, 768 F.2d 730 (5th Cir. 1985) and Acuff v.
United Papermakers and Paperworkers, 404 F.2d 169
(1968), cert. denied, 89 S.Ct. 1466 (1969), cases applicable
to the LMRA and the NLRA, to all claims brought pursu-
ant to the RLA.
The Fifth Circuit’s decision affects the rights of
thousands of Continental employees as well as the rights
of hundreds of thousands of employees working in indus-
tries covered by the RLA with regard to access to the
federal courts. The Fifth Circuit decision adversely im-
pacts the rights of these employees by severely restricting
10
the types of claims that may be brought under the RLA
and by effectively changing the Congressionally mandated
statute of limitations applicable to cases seeking review of
the decision of RLA Boards.
For example, prior to the Fifth Circuit ruling, an
employee covered by the RLA had the right to make a
claim for breach of the duty of fair representation but was
not required to do so. See Landry v. Airline Pilots Associa-
tion Intern. AFL-CIO, 901 F.2d 404, 411 (5th Cir. 1990).
Such a claim could be brought separately or as part of a
“hybrid” action joining a claim against the employer. Both
a claim for breach of the duty of fair representation and a
hybrid claim have six month statutes of limitations. In
contrast, a claim under the RLA for review of a Board
award on the basis that the Board failed to comply with
RLA requirements, that the Board exceeded its jurisdic-
tion, or that there was fraud or corruption by a Board
member has a two year statute of limitations. Trial v.
Atchison, Topeka & Santa Fe Railway Co., 896 F.2d 120,
125-26 (5th Cir. 1990); Brock v. Republic Airlines, Inc., 776
F.2d 523, 526-27 (5th Cir. 1985); Edwards v. Universal
Parcel Service, Inc., 2001 WL 777414 (6th Cir. July 5,
2001). The Fifth Circuit’s unwarranted rewrite of the RLA
should be reviewed by this Court.
B. The Fifth Circuit Decision Is Contrary To
The Plain Language Of The RLA.
The Railway Labor Act at 45 U.S.C. § 153 First (q)
provides:
If any employee, or group of employees, or
any carrier, is aggrieved by the failure of any di-
vision of the Adjustment Board to make an
award in a dispute referred to it, or is aggrieved
by any of the terms of an award or by the failure
of the division to include certain terms in such
11
award, then such employee or group of employees
or carrier may file in any United States district
court in which a petition under paragraph (p)
could be filed, a petition for review of the divi-
sion’s order.
The RLA was amended in 1936 to bring the airline
industry under its provisions. At that time, 45 U.S.C.
§ 153 dealing with the National Railroad Adjustment
Board was not made applicable to the airline industry.
In Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246,
248, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994), this Court
made it clear that 45 U.S.C. § 153 is applicable to the
airline industry.
In Steward v. Mann, 351 F.3d 1338 (11th Cir. 2003),
the Eleventh Circuit held that 45 U.S.C. § 153 First (j)
should be applied to proceedings before an airline Board
despite the early statutory language excepting § 153 from
applicability to the airline industry. The Eleventh Circuit
based its holding in Steward on prior rulings of this Court
stating:
[W]jhen the Supreme Court confronted the ques-
tion of whether there was a federal cause of ac-
tion to enforce an award of an airline adjustment
board, it looked to the entirety of the RLA, rather
than just those provisions which Congress ex-
pressly applied to the airline industry. Interna-
tional Association of Machinists v. Central
Airlines, Inc., 372 U.S. 682, 685-89, 83 S.Ct. 956,
958-61, 10 L.Ed.2d 67 (1963). The Court con-
cluded that Congress intended that the awards of
airline adjustment boards be enforceable by a
federal cause of action, based on the RLA’s pur-
pose of quickly and finally resolving employee
grievances to avoid strikes. Jd. at 687, 690, 83
S.Ct. at 959, 961. The Court went on to suggest
that courts confronted with similar questions in
the future should consult other provisions of RLA
12
which do not expressly apply to airline adjust-
ment boards:
the provisions of a § 204 [codified at 45
U.S.C. § 184] contract, such as those
governing the composition of the ad-
justment board, the procedures to be
employed as to notice and hearing or for
breaking deadlocks, or the finality to be
accorded board awards, are to be judged
against the Act and its purposes and
enforced or invalidated in a fashion con-
sistent with the statutory scheme. Id.
at 694, 83 S.Ct. at 963.
Id. at 1344-45 (emphasis added).
After this Court’s 1963 holding in JAM v. Central
Airlines, Congress amended the RLA. The legislative
history regarding the 1966 amendments states that:
The principal purpose of the bill is to elimi-
nate the large backlog of undecided claims of
railroad employees pending before the National
Railroad Adjustment Board, to expedite disposi-
tion of grievances and disputes over the interpre-
tation and application of agreements, and to
provide equal opportunity for limited judicial re-
view of awards of the Board to employees and
employers. |
S. Rep. No. 1201 (1966), 1966 U.S. Code Cong. and Adm.
News, pp. 2285-86 (emphasis added).
The “limited judicial review” referred to in the legisla-
tive history is found at 45 U.S.C. § 153 First (q) and
requires an employee seeking to overturn the decision of
an RLA Board to demonstrate either that (a) the Board did
not follow the requirements of the RLA, (b) the Board
exceeded its jurisdiction, or (c) the Board acted fraudu-
lently or corruptly. 45 U.S.C. §153 First (q); Hall v.
Eastern Air Lines, Inc., 511 F.2d 663, 664 (5th Cir. 1975);
13
Chernak v. Southwest Airlines, Co., 778 F.2d 578, 580-81
(10th Cir. 1985); Henry v. Delta Air Lines, 759 F.2d 870,
872 (11th Cir. 1985); Brotherhood of Locomotive Engineers
v. St. Louis Southwestern Ry. Co., 757 F.2d 656, 660-61
(5th Cir. 1985); Atchison, Topeka and Santa Fe Ry. v.
United Transp. Union, 175 F.3d 355, 357 (5th Cir. 1999);
Continental Airlines, Inc. v. International Brotherhood of
Teamsters, 391 F.3d 613, 617 (5th Cir. 2004), cert. denied,
126 S.Ct. 331 (2005).°
C. The Fifth Circuit Decision Conflicts With
This Court And Other Circuits By Failing
To Recognize The Differences Between The
RLA And The NLRA And LMRA.
The Fifth Circuit reviewed Petitioners’ claims under
case law interpreting the provisions of the National Labor
Relations Apt, \29 U.S.C. §§ 151 et seq. and the Labor
Managemént Relations Act, 29 U.S.C. §§141 et seq.
Neither McNair v. United States Postal Service, 768 F.2d
730 (5th Cir. 1985) nor Acuff v. United Papermakers and
Paperworkers, 404 F.2d 169 (5th Cir. 1968), cert. denied, 89
S.Ct. 1466 (1969), the cases relied upon by the Fifth
Circuit as the basis for its ruling involved RLA claims.
The Fifth Circuit’s failure to assess Petitioners’ claims
under the proper standard resulted in their erroneous
dismissal because the prerequisites for a party’s seeking to
overturn the decision of an RLA Board differ greatly from
those required under the NLRA and the LMRA, See, e.g.,
Communications Workers of America v. Beck, 487 U.S. 735
(1988) (unlike the NLRA, the RLA establishes no agency
charged with administering its provisions, and instead
* As discussed in Section III, numerous courts have additionally
held that a fourth ground for overturning a Board decision is that the
Board denied the parties fundamental due process.
14
leaves it to the courts to determine validity of activities
challenged under the Act).
Unlike the RLA, in NLRA and LMRA cases, an ag-
grieved worker whose employment is governed by a
binding CBA normally lacks standing independently to
initiate grievance procedures or to contest such procedures
in court. McNair, 768 F.2d at 735. However, if a claimant
under the NLRA or the LMRA is able to demonstrate that
his union breached its duty of fair representation, he may
sue both the union and his employer for breach of the
agreement. Id.
These differences between the statutes were acknowl-
edged by this Court in International Brotherhood of
Electrical Workers v. Foust, 442 U.S. 42, 99 S.Ct. 2121
(1979) wherein this Court held:
Vaca involved a union certified under the
National Labor Relations Act and a collective-
bargaining agreement that permitted employees
to initiate the grievance process, but precluded
them from personally pursuing arbitration once
grievance procedures were exhausted. 386 U.S.
at 175 n.3, 87 S.Ct. at 909. The Railway Labor
Act is somewhat more solicitous of individual
rights. It authorizes employees who are unsuc-
cessful at the grievance level to seek relief in
their own right from the National Railroad Ad-
justment Board. §§3 First (i), (j), 45 U.S.C.
§§ 153 First (i), (j).
Id. at 49 n.11. The RLA also allows employees who are
aggrieved by the decisions of a Board to appeal to the
district court. 45 U.S.C. § 153 First (q).
Because Mitchell and Bale did not pursue a claim of
breach of the duty of fair representation, the Fifth Circuit
held that they did not have standing to challenge the
Board decision. Moreover, the Fifth Circuit expanded its
15
ruling on Petitioners’ individual claims to ali claims arising
under the RLA. If permitted to stand, the Fifth Circuit’s
opinion has effectively rewritten the statutory scheme
created by Congress as set forth in 45 U.S.C. § 153 First (q).
By failing to apply the statutory provisions of 45
U.S.C. § 153 First (q) to the claims brought by Mitchell
and Bale and by failing to acknowledge the differences
between the statutory framework for claims brought by
aggrieved employees under the RLA, the Fifth Circuit
created a conflict between its holding and the holdings of
this Court and numerous Courts of Appeals which have
held that employees in the airline and railroad industries
may sue to vacate the decision and award of an RLA Board
without having to allege a claim for unfair representation.
See, Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89,
99 S.Ct. 399, 58 L.Ed.2d 354 (1978); Parsons v. Continen-
tal Airlines, Inc., 2007 WL 174428 (11th Cir. Jan. 24, 2007);
Davila v. Delta Air Lines, Inc., 326 F.3d 1183 (11th Cir.),
cert. denied, 540 U.S. 1016 (2003); Henry v. Delta Air
Lines, 759 F.2d 870 (11th Cir. 1985); Allen v. CSX Trans-
portation, Inc., 22 F.3d 1180 (D.C. Cir. 1994); Colletti v. N.
J. Transit Corp., 2992 WL 1769006 (3d Cir. July 31, 2002);
Chandler v. American Airlines, Inc., 1992 WL 72955 (10th
Cir. April 10, 1992) (claim against union for breach of duty of
fair representation is a discrete claim quite apart from right
of individual employees expressly extended to them under
the RLA to pursue their employer before the Board); Stevens
v. Teamsters Local 2707, Airline, Aerospace and Allied
Employees, 504 F. Supp. 332 (W.D. Wash. 1980) (airline
employees covered by RLA have same statutory mght
individually to process grievances as railroad industry
employees).°
* The Fifth Circuit itself had previously ruled that a Board had
jurisdiction to hear a flight attendant’s complaints regarding termination
(Continued on following page)
16
Given the frequency with which disputes arise under
the terms of the RLA and given the conflicts that exist
among the Circuits, review of this important issue affect-
ing thousands of workers in the United States workforce
should be granted.
D. The Fifth Circuit’s Acknowledgment That A
Conflict Exists With The Third Circuit’s
Decision In McQuestion v. N.d. Transit Rail
Operations While Attempting To Distin-
guish That Case Underscores The Breadth
Of The Fifth Circuit’s Ruling And Empha-
sizes The Need For Review By This Court®
Numerous courts have relied upon the express lan-
guage of 45 U.S.C. § 153 First (q) to find that employees
covered by the RLA may seek judicial review of a ruling of
an RLA Board without alleging a claim of unfair represen-
tation. These courts, including this Court, have adhered to
the sound principle of law that if Congressional intent is
clear from the plain words of a statute, application of other
means of construction is unnecessary and unwarranted.
INS v. Cardoza-Fonseca, 480 U.S. 421, 445 n.29, 107 S.Ct.
1207, 94 L.ind.2d 434 (1987) (court must give effect to the
unambiguously expressed intent of Congress).
The wording of 45 U.S.C. § 153 First (q) could not be
clearer; yet the Fifth Circuit has gone to great length to
contort the clear meaning of the statutory language and to
import into the RLA extraneous concepts from other laws
which clearly were not intended by Congress to be appli-
cable to the railroad and airline industries.
and the airline’s failure to follow the terms of a CBA under 45 U.S.C.
§ 184, and that limited review of that decision may be heard upon the
filing of a suit in district court pursuant to 45 U.S.C. § 153. Soileau uv.
Southwest Airlines Co., 2000 WL 1273394 (5th Cir. August 23, 2000).
17
In discussing McQuestion v. New Jersey Transit Rail
Operations, Inc., 892 F.2d 352 (3d Cir. 1990), the Fifth
Circuit acknowledged that the Third Circuit found that
the plain language of 45 U.S.C. § 153 First (q) provides
individual employees standing to bring a petition for
review of an arbitral hearing initiated under the RLA.
However, the Fifth Circuit then limited the clear language
of the statute to employees with “uniquely individual
grievances.” Of course, nothing in the statute refers to
“uniquely individual grievances.” Moreover, the Fifth
Circuit underscored its hostility to the plain language of
the statute and its applicability to Petitioners’ claims by
announcing:
We do not foreclose and need not decide to-
day whether an individual employee may ever
bring such “uniquely individual claims,” render-
ing him the “real party in interest,” such that
§ 153 First (q) provides him standing to bring an
RLA claim. Rather, under the facts presented
here and those of our precedent, an aggrieved
employee will generally lack standing to bring an
RLA action.
Appendix A, App. 15, n.24. Contrary to the rulings of this
Court and to all other Circuits that have addressed the
issue, the Fifth Circuit has now indicated an intent to
write out of the RLA the express right of any employee to
seek redress in the district court.’
* The Fifth Circuit’s attempt to distinguish McQuestion on the
basis that McQuestion addressed “uniquely individual grievances” as
opposed to the general grievance brought by the IAM, is belied by the
fact that the initial Decision of the Board indicates it was hearing the
individual grievances of Mitchell, Bale and four other individuals.
Appendix C, App. 47. It is not until the second Decision of the Board
that a reference to a general grievance appears. See, Appendix D, App.
57. Even after the inclusion of the general grievance, the Board
(Continued on following page)
18
In light of the extreme interpretation of the RLA by
the Fifth Circuit which has created a conflict among the
Circuits and in light of the importance of the issue to so
many people who would benefit: from this Court’s clarifica-
tion of the statutory provisions involved, Petitioners
respectfully urge the Court to grant this Petition for Writ
of Certiorari.
II. REVIEW SHOULD BE GRANTED TO RESOLVE
CONFLICTS REGARDING WHAT CONSTI-
TUTES “DUE NOTICE” UNDER § 153 FIRST Gj)
OF THE RLA.
Petitioner Boorstein and some 9,000 other Continen-
tal flight attendants received no notice of the Board
hearing at which evidence was taken, and following which,
a Decision and Award was issued impacting their seniority.
The RLA, however, contains the following provision:
Parties may be heard either in person, by coun-
sel, or by other representatives, as they may re-
spectively elect, and the several divisions of the
Adjustment Board shall give due notice of all
hearings to the employee or employees and the
carrier or carriers involved in any disputes sub-
mitted to them.
45 U.S.C. § 153 First (j).°
Contrary to the clear language of § 153 First (j), the
Fifth Circuit held that Boorstein and those similarly
situated were not entitled to any notice whatsoever because
addressed the individual claims and made findings specific to the six
individuals involved.
* The RLA’s “due notice” provisions are applicable to the operations
of airline adjustment boards. Steward v. Mann, 351 F.3d at 1344-45; Air
Line Pilots Ass’n Intern. v. Texas Intern. Airlines, Inc., 567 F. Supp. 66,
76-77 (S.D. Tex. 1983).
19
the IAM had notice, and notice to the union would be
deemed sufficient notice to all those covered by the CBA.
Appendix A, App. 11-12.
The standard set by the Fifth Circuit in the instant
case effectively eliminates the due notice provision of the
RLA since by definition, anyone whose rights are being
determined by a Board is covered by the CBA. In reaching
its decision, the Fifth Circuit relied upon selected lan-
guage in Brotherhood of Railroad, Airline, & Steamship
Clerks, Freight Handlers, Express & Station Employees v.
St. Louis Southwestern Ry. Co., 676 F.2d 132, 136 (5th Cir.
1982) in which the court stated:
We are convinced, therefore that the Board
is obligated to notify an employee (or his repre-
sentative) of any proceeding that may result in
that employee’s losing his position. This re-
quirement should not prove burdensome in most
instances, since a letter of notification to one or
two union representatives normally will ensure
that all “involved” parties are apprised of the
dispute. In any event, inconvenience cannot ex-
cuse noncompliance with the law. See Estes, 89
F.2d at 771. Estes clearly established the rule
that the Board must extend notice “to all persons
who will be substantially affected by the order
that may be entered by the Board, unless notice
is waived.” Id.
When this earlier Fifth Circuit decision is read in its
entirety rather than by focusing on phrases taken out of
context, it is clear that the earlier decision required that
employees receive notice prior to a hearing unless they had
taken some action to waive that right. It is equally clear
that the court’s reference to the fact that in most instances
the only action required would be to send a letter to one or
two union representatives is explicitly premised upon the
expectation that the union representative would insure
20
that “‘all involved’ parties are apprised of the dispute.”
Here Boorstein and those similarly situated were “in-
volved” parties who were not in any way “apprised” that
their rights were being adjudicated.
The Fifth Circuit’s opinion regarding the due notice
provisions of the RLA conflicts with the pronouncement of
other Circuits. For example, the Eleventh Circuit has held
that the right of due notice applies to all employees whose
seniority might be affected by a Board award. Steward v.
Mann, 351 F.3d at 1338, 1345-46. While the Circuits are not
necessarily in agreement as to the extent of the notice that is
required, no Circuit has found, as did the Fifth Circuit, that
an employee’s being covered by a CBA will be sufficient to
satisfy the RLA’s due notice requirement.
The range of Circuit holdings on the issue of due
notice was described by the Ninth Circuit in English v.
Burlington Northern Railroad Co., 18 F.3d 741, 744-45
(9th Cir. 1994):
“Due notice” is not defined by the RLA, and
currently, the Sixth and Seventh Circuits appear
to be divided on what notice is due. Compare
Cole v. Erie Lackawanna Ry., 541 F.2d 528 (6th
Cir. 1976), cert. denied, 433 U.S. 914, 97 S.Ct.
2987, 53 L.Ed.2d 1100 (1977), with O’Neill v.
Public Law Bd. No. 550, 581 F.2d 692 (7th Cir.
1978). In Cole, the court held that even when the
union represents the employee at the Board
hearing, the employee must receive actual notice
of the proceedings, though formal notice need be
given only to the union. Jd. at 534. “Actual notice
... 1s notice of the hearing for a sufficient period
prior thereto to permit the employee to consult
with union officials and relay such information
as he possesses which might allow the union to
more effectively present his claim.” Jd.
* * %
21
In O’Neill, the Seventh Circuit reached a dif-
ferent conclusion, holding that actual notice is
not required if the employee is represented by
the union. O’Neill, 581 F.2d at 696. Rejecting the
Sixth Circuit’s conclusion, the O’Neill court held
that “where an individual employee authorizes
his union to represent him .. . and to receive any
notices on his behalf, [the RLA] does not require
that actual notice be given to the individual em-
ployee.” Id. at 695.
While at first blush it might appear that the Fifth
Circuit is in accord with the holding in O’Neill, the cir-
cumstances were not the same. The employee in O’Neill
had pre-authorized the union to receive notice, 581 F.2d at
695-96, while Boorstein had not done so.” Moreover, in an
earlier opinion where no authorization had been obtained
from employees whose rights were decided by an RLA
Board, the Seventh Circuit held that the failure to comply
with § 153 First (j) by failing to give employees notice and
depriving them of the right to participate in the hearing
resulted in the Board’s being without jurisdiction to prom-
ulgate its award. The court further held that the district
court was correct in enjoining enforcement of the award.
Allain v. Tummon, 212 F.2d 32, 36-37 (7th Cir. 1954).
The Ninth Circuit determined that the holding in Cole
requiring actual notice more closely adhered to this
Court’s pronouncements in Elgin, J. & E. Ry. Co. v. Burley,
325 U.S. 711, 65 S.Ct. 1282 (1945) (due notice requires at
least knowledge by the employee of the pendency of the
* In fact, the IAM took care to obtain written authorization from
Mitchell and Bale for the union to proceed on their behalf at the time
they filed their grievances. Appendix A, App. 15, 20-22. Boorstein had
not signed such an authorization. She was simply an employee who had
no knowledge that her rights were being adjudicated. Appendix A, App.
11-12.
22
proceedings or sufficient knowledge to put him on notice of
the hearing). The Ninth Circuit therefore held that an
employee must receive actual notice of a hearing before
the Board and sufficient time in which to help the union
present his claim. 18 F.3d at 745. In a similar vein, the
Sixth Circuit, in Meeks v. Illinois Cent. Gulf R.R., 738 F.2d
748 (6th Cir. 1984) held that a Board’s award was without
legal effect because the Board gave notice to the union but
failed to give personal notice to the employee.
Here, the Board made no attempt to give due notice to
Boorstein. Nonetheless, the Fifth Circuit determined that
Boorstein and the other affected flight attendants were not
entitled to any notice whatsoever.
This Court should grant the Petition to resolve the
conflicts among the Circuits with regard to the require-
ments for due notice so that those whose rights are deter-
mined by RLA Boards, those who represent such aggrieved
employees, and those who sit on RLA Boards will have the
benefit of this Court’s resolution of this important issue.
lil. REVIEW SHOULD BE GRANTED TO RESOLVE
CONFLICTS REGARDING WHETHER AN “AG-
GRIEVED” EMPLOYEE UNDER §153 FIRST
(q) OR AN “INVOLVED” EMPLOYEE UNDER
§ 153 FIRST G) MUST EXHAUST REMEDIES
PRIOR TO FILING SUIT.
The Fifth Circuit dismissed Boorstein’s claims based
upon her alleged failure to exhaust her collective bargain-
ing remedies, i.e., by not filing a grievance and by not
participating in the remedy crafted by the Adjustment
Board. Appendix A, App. 11-12, 16. The Fifth Circuit’s
dismissal on the ground of failure to exhaust is in conflict
with the statutory language of the RLA and with the
decisions of this Court and numerous Courts of Appeals.
23
It is undisputed that Boorstein and those similarly
situated did not file grievances or seek to have the adverse
adjustments of their seniority rights determined by a
Board. Had their rights not been made a part of the award
of the Board, they would not have had a right to file suit
absent their exhausting their collective bargaining reme-
dies. However, once the Board entered its Award creating a
process that impacted the flight attendants’ rights under
the CBA, all of Continental’s flight attendants, including
Boorstein, became “aggrieved” employees under § 153
First (q) and “involved” employees under § 153 First (j).
See, Sections I and II.
Without affording notice or the right to be heard to
Boorstein and the other flight attendants, the Adjustment
Board artificially limited the actionable time period for
Continental’s arbitrary adjustments to the flight atten-
dants’ non-competitive seniority to two years prior to the
date of the Board’s Decision. The Board also required the
flight attendants to seek relief at considerable peril to
their seniority. This was so, because the flight attendants
did not have access to their records, and the Board’s
“remedial order” provided that once invoking the process
to ascertain if any relief from arbitrary adjustments was
due under the Board’s own brand of industrial justice,
Continental was again free to arbitrarily adjust a flight
attendant’s seniority. Appendix H, App. 86, 88. The actions
of the Beard thus brought Boorstein and those similarly
situated well into the definitions of “aggrieved” and
“involved” employees under § 153 First. As described in
Sections I and II, employees who are “aggrieved” and/or
“involved” have a right to seek redress in district court
without any additional exhaustion of remedies.
Additionally, § 153 First (q) provides that an order of
the Board may be set aside in whole or in part or re-
manded if the Board did not follow the requirements of the
24
RLA, the Board exceeded its jurisdiction, or the Board
acted fraudulently or corruptly. Although the Board found
that Continental had failed to properly maintain its flight
attendants’ seniority system, and that “Adjustment was
made for periods of inactivity taken by some individuals
when they returned to work, but not for others,” Appendix
C, App. 53, the relief fashioned by the Board failed to
correct the lack of integrity of the seniority system. In-
stead the Board created an “equitable” solution to address
seniority problems engendered by the retroactive and
secretive adjustment of seniority rights by Continental.
The Board fashioned a remedy that was outside the terms
of the CBA, and therefore the Board’s imposition of the
“equitable” solution was outside the jurisdiction of the
Board. Brotherhood of Railroad Trainmen v. Central of
Georgia Railway Company, 415 F.2d 403, 411-12 (5th Cir.
1969).
The purpose of the seniority provisions of the flight
attendants’ CBA is to maintain the integrity of the senior-
ity system. The essence of the seniority system is to treat
persons on the seniority roster in a fair and equitable
manner and not to favor some over others. Yet, by arbitrar-
ily setting cut off dates not anticipated by the CBA, by not
requiring the uniform application of seniority adjustments
or the rescission of all those adjustments arbitrarily
imposed, the remedy fashioned by the Board simply
substituted one form of corruption of the seniority system
with another equally unfair form.
As the Fifth Circuit itself held in Brotherhood of
Railroad Trainmen, 415 F.2d at 412:
... an arbitrator does not sit to dispense his own
brand of industrial justice. He may of course look
for guidance from many sources, yet his award is
legitimate only so long as it draws its essence
from the collective bargaining agreement. When
25
the arbitrator’s words manifest an infidelity to
this obligation, courts have no choice but to re-
fuse enforcement of the award (citing United
Steelworkers of America v. Enterprise Wheel and
Car Corp., 363 U.S. 593, 597 (19€9)).
As an “aggrieved employee” Boorstein was entitled
under § 153 First (q), to seek redress in district court to
overturn the decision of the Board. She did not have to
participate in the procedure established by the Board that
was wholly “without foundation in reason or fact.” With-
out question the Board exceeded its jurisdiction by impos-
ing its “equitable” solution. Boorstein was within her
rights under § 153 First to seek to prevent the enforce-
ment of the improper exercise of the Board’s authority.
Furthermore, as she was challenging the procedure used
by the Board, she was not required to exhaust any reme-
dies pertaining to that procedure, but was entitled to have
her claims ruled upon by the district court. Finnerty uv.
Cowen, 508 F.2d 979, 981-82 (2d Cir. 1974). The Fifth
Circuit’s opinion conflicts with the holding of this Court in
Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89, 99
S.Ct. 399, 58 L.Ed.2d 354 (1978) and the holding of the
Court of Appeals in Steward v. Mann, 351 F.3d 1338 (11th
Cir. 2003). This Court should grant the Petition to give
guidance to the Courts of Appeals on these important
matters.
” The lack of a rational basis for the relief imposed by the Adjust-
ment Board is demonstrated by the results obtained. Of the six
individual grievants, three received no relief, and the others each
received one week of vacation pay. Of the eleven flight attendants who
filed claims, most did not obtain the relief they sought. Appendix D.
26
IV. REVIEW SHOULD BE GRANTED TO RESOLVE
A CONFLICT AMONG THE CIRCUITS RE-
GARDING WHETHER EMPLOYEES SUBJECT
TO THE RLA MAY ASSERT CLAIMS UNDER
THE CONSTITUTION FOR DENIAL OF DUE
PROCESS WHEN THE DEPRIVATION OF
RIGHTS RELATES TO ACTIONS BY AN RLA
BOARD.
A. A Conflict Exists Among The Circuits Re-
garding Whether Employees Who Assert
Rights Under The RLA May Assert Inde-
pendent Claims Under The Due Process
Clause Of The Constitution.
Petitioners claimed in the district court that they had
been denied due process of law as guaranteed by the fifth
amendment.” Mitchell and Bale alleged that they were
denied due process during the hearing before the Board
when they were without notice required to represent
themselves. Boorstein alleged that she was denied due
process when without notice or opportunity to be heard,
her rights were adjudicated without her knowledge by the
Board. In addition to invoking the district court’s jurisdic-
tion pursuant to 45 U.S.C. § 153 First (q), Petitioners
invoked the district court’s jurisdiction pursuant to 28
U.S.C. § 1331 and the fifth amendment.
Having improperly relied upon NLRA/LMRA prereq-
uisites to deny Mitchell and Bale standing under the RLA,
the Fifth Circuit additionally invoked its newly created
standing qualification to preclude federal judicial review of
Mitchell and Bale’s due process challenge to the validity of
'' Petitioners’ vested seniority rights are without question “prop-
erty” within the meaning of the due process clause. Elmore v. Chicago
& Illinois Midland Railway Company, 782 F.2d 94, 96-97 (7th Cir.
1986).
27
the Board’s actions. Similarly, the Fifth Circuit, having
incorrectly determined that Boorstein failed to exhaust
her collective bargaining remedies, additionally refused to
address Boorstein’s constitutional claims. The Fifth
Circuit’s refusal to review Petitioners’ due process claims
conflicts with the decisions of this Court and with the
holdings of the Second, Seventh, Eighth, and Ninth
Circuits as well as with its own precedents which have
found either that an independent constitutional claim
exists separate and apart from the statutory claims under
the RLA or that such a due process claim is a ground for
vacating the decision of the Board that is encompassed
within the RLA itself.”
In Atchison, Topeka and Santa Fe Railway Co. v.
Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987),
this Court held that the RLA’s binding arbitration provi-
sions did not deprive the district court of jurisdiction to
hear an employee’s claim against his employer for per-
sonal injuries arising under the Federal Employers’
Liability Act. This Court unanimously rejected the rail-
road’s argument that the employee was required to resort
to the grievance machinery under the RLA, and that the
grievance procedure was his sole remedy. In rejecting the
railroad’s argument, this Court noted that the RLA did not
preempt other federal statutes that provided rights out-
side the scope of those covered by the RLA. Jd. at 565.
While the independent claim in Buell was a federal
statutory claim, the lower courts have applied Buell’s
” Because Boards created pursuant to the RLA are federal bodies,
their actions must pass federal constitutional muster. Shafti v. PLC
British Airways, 22 F.3d 59 (2d Cir. 1994); English v. Burlington
Northern R.R., 18 F.3d 741 (9th Cir. 1994); see also, Elmore v. Chicago
& Illinois Midland Railway Company, 782 F.2d at 96-97.
28
holding and reasoning to constitutional claims asserted by
employees covered by the RLA. Coppinger v. Metro-North
Commuter Railroad, 861 F.2d 33 (2d Cir. 1988). As the
Second Circuit in Coppinger observed:
For purposes of the narrow jurisdictional
question now before us, we are persuaded that
there is no principled basis upon which to distin-
guish § 1983 from the FELA at issue in Buell. In
enacting § 1983 Congress aimed to create an in-
dependent scheme for redressing constitutional
wrongs to aggrieved individuals by providing a
federal cause of action. Nothing in the statutory
plan suggests that a prior determination in an
arbitration proceeding prevents a plaintiff from
bringing suit in federal court or divests that
court of jurisdiction.
* *
More recently in Webster v. Doe, 486 U.S.
592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988), the
Supreme Court stated that when Congress’ pur-
pose is to preclude judicial review of a constitu-
tional claim it must make its purpose plain. Jd.
108 S.Ct. at 2053. No such aim: may be discerned
in either the RLA or § 1983.
Id. at 37. The Second Circuit continued:
We hold therefore that the rights guaranteed
all citizens by the Fourth Amendment and under
§ 1983, and the strong public policy favoring ar-
bitration that underlies the RLA must allow ap-
pellant to pursue his contractual remedy under
the RLA and his separate cause of action under
§ 1983 independently of one another.
29
Id. at 39." This Court should resolve the conflict with
regard to whether employees covered by the RLA are
permitted to pursue an independent claim of denial of due
process in seeking to overturn the adverse decision of a
Board.
B. A Conflict Exists Among The Circuits As To
Whether Due Process Claims Are Cogniza-
ble Under The Railway Labor Act Itself.
Although the Fifth Circuit precluded Petitioners from
prosecuting their respective due process claims under the
RLA, the Fifth Circuit had previously been among those
Circuits that allowed a federal court to review due process
claims under the RLA. See, Goff v. Dakota, Minnesota & E.
R.R. Corp., 276 F.3d 992, 997 (8th Cir. 2002); Atchison,
Topeka and Santa Fe Ry. Co. v. United Transp. Union, 165
F.3d 355, 357 (5th Cir. 1999); Pokuta v. Trans World
Airlines, Inc., 191 F.3d 834, 839 (7th Cir. 1999); Shafii v.
PLC British Airways, 22 F.3d 59, 64 (2d Cir. 1994); Eng-
lish v. Burlington N. R.R. Co., 18 F.3d 741, 744 (9th Cir.
1994); Hayes v. Western Weighing & Inspection Bureau,
838 F.2d 1434, 1436 (5th Cir. 1988); Steffens v. Brother-
hood of Ry., Airline & S.S. Clerks, 797 F.2d 442 (7th Cir.
1986); Armstrong Lodge No. 762 v. Union Pacific R.R., 783
F.2d 131, 135 (8th Cir. 1986); Radin v. United States, 699
F.2d 681, 684 (4th Cir. 1983); Hall v. Eastern Air Lines,
Inc., 511 F.2d 663 (5th Cir. 1975); Rosen v. Eastern Air
Lines, 400 F.2d 462, 464 (5th Cir. 1968), cert. denied, 394
U.S. 959, 89 S.Ct. 1807, 22 L.Ed.2d 560 (1969); D’Elia v.
New York, N.H. & H. R.R., 338 F.2d 701, 702 (2d Cir. 1964)
'’ While the Second Circuit in Coppinger focused on 42 U.S.C.
§ 1983 as a jurisdictional grant to prosecute a constitutional claim, in
fact, this Court has held that a person may vindicate federal due
process rights by direct action under the fifth amendment. Davis v.
Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979).
30
(per curiam), cert. denied, 380 U.S. 978, 85 S.Ct. 1340, 14
L.Ed.2d 272 (1965).
Now, denying an employee covered by the RLA who
cannot also show a breach of his union’s duty of fair
representation the right to have his or her constitutional
challenges heard, the Fifth Circuit has joined the Circuits
that do not permit a federal court to review due process
claims under the RLA. See, Kimross v. Utah Ry. Co., 362
F.3d 658, 662 (10th Cir. 2004); Jones v. Seaboard Sys. R.R.,
783 F.2d 639, 642 n.2 (6th Cir. 1986); Henry v. Delta Air
Lines, 759 F.2d 870, 873 (11th Cir. 1985); United Steel-
workers of Am. Local 1913 v. Union R.R. Co., 648 F.2d 905,
911-12 (8d Cir. 1981). This Court should resolve the
conflict among the Circuits regarding the important issue
of whether and to what extent a court may entertain
constitutional due process claims brought for the purpose
of reviewing the actions of RLA Boards.
CONCLUSION
For the foregoing reasons, Petitioners respectfully
request that the Supreme Court grant review of this
matter.
Respectfully submitted,
STUART M. NELKIN*
CAROL NELKIN
JAY P. NELKIN
NELKIN & NELKIN, P. C.
5417 Chaucer
Houston, TX 77005
713-526-4500
Attorneys for Petitioners
*Counsel of Record
App. 1
481 F.3d 225
United States Court of Appeals, Fifth Circuit.
Marilyn MITCHELL; Kevin Bale;
Susan Boorstein, Plaintiffs-Appellants,
v.
CONTINENTAL AIRLINES, INC.,; International
Association of Machinists and Aerospace Workers,
Defendants-Appellees.
No. 05-20791.
March 7, 2007.
Carol L. Nelkin (argued), Stuart M. Nelkin, Jay P.
Nelkin, Nelkin & Nelkin, Houston, TX, for Plaintiffs-
Appellants.
Jon A. Geier, Paul, Hastings, Janofsky & Walker,
Washington, DC, Louis K. Obdyke, IV, Houston TX, Kelly
Jean Koelker, Paul, Hastings, Janofsky & Walker, Atlanta,
GA, for Continental Airlines.
John A. Edmond (argued), Guerrieri, Edmond, Clay-
man & Bartos, Washington, DC, Marc A. Zito, Houston,
TX, for Intern. Ass’n of Mach. & Aerospace Workers.
Appeal from the United States District Court for the
Southern District of Texas.
Before KING, WIENER, and CLEMENT, Circuit
Judges.
WIENER, Circuit Judge:
Plaintiffs-Appellants Marilyn Mitchell, Kevin Bale,
and Susan Boorstein appeal the district court’s grant of
summary judgment, dismissing without prejudice their
App. 2
petition to vacate an arbitration award under the Railway
Labor Act (‘RLA”).’ For the following reasons, we affirm
the district court, concluding that Boorstein failed to
exhaust her contractually-created procedural remedies
and that Mitchell and Bale lack standing to bring a
petition under the RLA.
I. FACTS AND PROCEEDINGS
A. Background
The plaintiffs are flight attendants for Defendant-
Appellee Continental Airlines, Inc. (“Continental”). As
such, their employment is governed by a collective bar-
gaining agreement (“CBA”) between Continental and
Defendant-Appellee International Association of Machin-
ists and Aerospace Workers (“IAM”). The CBA provides a
system of procedures for the resolution of employment
grievances, ultimately requiring that unresolved griev-
ances be resolved by final and binding arbitration before a
Systems Board of Adjustment (“the Board”), as is permit-
ted by the RLA. In addition, the CBA specifies that the
IAM shall serve as the exclusive bargaining representative
for all flight attendants.
Under the CBA, Continental’s flight attendants accrue
various types of seniority, each of which is classified as
either competitive or non-competitive. Continental is
required to post competitive seniority dates biennially.
Flight attendants have thirty days after each such posting
to challenge the accuracy. Competitive seniority is not at
issue in this case; non-competitive seniority is, though.
' 45 U.S.C. §§ 151 et seq.
App. 3
Continental is not required to post non-competitive
seniority dates for its flight attendants. Non-competitive
rankings include pay seniority, vacation seniority, and
jump-seat and pass-riding seniority. Instead of posting
lists of non-competitive seniority periodically, they are
communicated in other, more discrete ways.
B. Boorstein
Boorstein had been employed as a Continental flight
attendant since November 1968, when in 1996, she
learned that her jump-seat seniority date had been
changed from her date of hire to a subsequent date in
1971. She also learned that her company service date had
been unfavorably changed when, on her thirtieth anniver-
sary with Continental, she received a cake of the type
customarily given to flight attendants with only twenty
years of service. Boorstein alleges that, after she inquired
into the unfavorable adjustments, her seniority status was
again adjusted adversely. Boorstein never filed a grievance
against Continental and never sought to resolve her
dispute through arbitration before the Board.
C. Mitchell
Mitchell began her employment with Continental in
January 1969, and began flying the next month. In 1996,
Mitchell’s pass-riding seniority date was retroactively
adjusted without her knowledge as a result of company-
offered leave that she had taken years earlier.’ The next
* Company-offered leave is optional leave offered by Continental to
its flight attendants. It is offered to those attendants with higher
seniority in lieu of leave being forced on junior flight attendants (1.e.,
(Continued on following page)
App. 4
year, Mitchell also discovered that her vacation seniority
date was different and less advantageous than previously
indicated. Throughout 1997 and 1998, Mitchell repeatedly
contacted and questioned Continental personnel regarding
the accuracy of her seniority dates. She alleges that her
questioning led to even greater unfavorable adjustments.
Unable to resolve her inquiries satisfactorily, Mitchell
contacted IAM in 1999. After prolonged discussions, IAM
eventually permitted Mitchell to file a grievance against
Continental, in which she contended that her non-
competitive seniority dates had been subjected to unfair,
adverse adjustments. That was in May 2000. Her griev-
ance was denied following a step-one and a step-two
hearing.
D. Bale
Bale joined Continental as a flight attendant in July
1987. In 1997, he discovered that his vacation seniority
date was less advantageous than his records indicated it
should have been. Bale periodically inquired into the
discrepancy between 1998 and 2000. He was eventually
informed that his vacation seniority date had been ad-
justed for company-offered leaves that he had taken
between 1991 and 1995.
furlough status), thereby alleviating the effect of overstaffing and base
closings. This is advantageous to Continental, because its payroll
expense is reduced by having lower paid flight attendants on duty, as
Continental does not have to pay its senior flight attendants who are on
company-offered leave and does not have to pay furlough pay to junior
flight attendants who would otherwise be on furlough status.
App. 5
In August 2000, Bale filed a grievance, complaining of
unfair and unequal adjustment of seniority. In June 2001,
Bale filed a second grievance, complaining that Continen-
tal violated the CBA by including managerial employees at
the level of director or above in the System Seniority List.
Both of these grievances were denied following a step-one
and a step-two hearing.
E. Involvement of IAM
A stamped, and then signed and dated notice appears
in the upper, right-hand corner of both Mitchell’s and
Bales’ grievances, in which each attendant acknowledged:
“I hereby authorize the International Association of
Machinists, with full power of attorney, to represent me in
all stages of the Grievance Procedure in the presenting
and settling of this grievance.” After Mitchell’s and Bale’s
grievances were denied by Continental, they were referred
to arbitration before the Board, which consisted of one
IAM representative, one Continental representative, and
one neutral chairperson. As the IAM had previously
learned that several other flight attendants’ non-
competitive seniority dates had been unfavorably adjusted
without their knowledge, it presented with those of
Mitchell and Bale the grievances of four similarly-situated
flight attendants in a two-day arbitration hearing before
the Board in February 2002.
Prior to this hearing being held, Mitchell and Bale
had received numerous notices of the hearing dates and
locations, the hearing date having been postponed and
rescheduled numerous times. In addition, both Mitchell
and Bale met with IAM representatives in 2001, and
App. 6
Mitchell attended a second preparatory meeting in Febru-
ary 2002.
When the hearing was finally convened in February
2002, Mitchell participated in person and Bale partici-
pated by telephone. Both Mitchell and Bale allege that,
immediately before the hearing, IAM informed them that
it would not be representing them, so they would have to
represent themselves. Both claim that they thus were
“ambushed” into putting on their own, admittedly defi-
cient, pro se case.
In May 2002, the Board rendered its arbitral decision
and award (“the Award”). The Board first decided that it
lacked jurisdiction over matters arising before the date
that the CBA was formed, April 1, 2000. It then concluded
that Continental had failed to maintain “a careful record
of when an individual returned to work from a leave of
absence for purpcses of his or her seniority” and that
“[ajdjustments [were] made for periods of inactivity taken
by some individuals when they returned to work, but not
for others.” After acknowledging Continental's failure to
maintain careful records and declaring that it was unable
to “examine all of the individual employment records of
the [more than 9,000] flight attendants employed by
Continental,” the Board prescribed the following procedure
to be used by flight attendants retrospectively challenging
their seniority dates and for Continental’s use in making
future adjustments:
[FJor retroactive adjustments that occurred
within the last two years, flight attendants may
protest such adjustments in their seniority dates
which occurred more than a year after the event
which triggered the adjustment. They may do so
within 30 days of the date on which this award is
App. 7
rendered, and the parties shall have the joint ob-
ligation of informing all flight attendants of this
decision.... For the future, the company shall
have a period of one year from the date on which
they first were notified by the Company ... to
file a protest.
In the Award, the Board also (1) decided that its
ruling would apply to Bale’s grievance and provided the
IAM and Continental an opportunity to resolve his griev-
ance amicably based on the rules set forth in the Award;
(2) denied as untimely those grievances relating to indi-
viduals holding managerial positions at the director level
and higher as untimely; and (3) denied Mitchell’s griev-
ances “because the adjustments were made contemporane-
ously and in order to retain seniority one must be on the
list of Company employees and to accrue seniority one
must be in the active service of the Company and be
receiving pay for such service.” Finally, the Board retained
jurisdiction over “all disputes arising based upon this
decision including questions regarding remedy.”
Continental and LAM then issued a joint notice to all
flight attendants, informing them of the existence of the
Award, its terms and conditions, and the deadline for filing
claims pursuant to the Award. In October of that year,
after negotiations between Bale and Continental proved
unsuccessful, the Board issued a second arbitral award,
finding that the seniority adjustments of which Bale
complained “were actually made in September 1998,
outside the timeframe for claims that can be submitted
under the [Award].” The Board, therefore, denied Bale’s
grievance.
In May 2004, the plaintiffs filed a petition for review of
the Award in the Southern District of Florida, requesting
App. 8
that the district court (1) enjoin Continental from imple-
menting the Award, (2) vacate the Award, and (3) remand
the matter to the Board. The plaintiffs contended that the
Award failed to comply with and conform to the require-
ments of the RLA and that it violated their constitutional
right to due process. In August 2004, the Southern District
of Florida transferred the action to the District Court for
the Southern District of Texas, from which this appeal is
taken.
In August 2005, the district court, treating the plain-
tiffs’ petition for review and defendants’ opposition to it as
cross-motions for summary judgment, denied the plaintiffs’
petition for review and entered judgment in favor of
Continental and IAM, concluding that the plaintiffs’
failure to allege a breach of IAM’s duty of fair representa-
tion left them without standing. In addition, the district
court dismissed the plaintiffs’ constitutional due process
claims, ruling that the plaintiffs had failed to state a claim
for which relief could be granted. The plaintiffs timely
filed a notice of appeal.
II. LAW AND ANALYSIS
A. Standard of Review
We review a grant of summary judgment de novo,
applying the same standard as the district court.’ The RLA
regulates labor disputes between airline carriers and their
employees by establishing mandatory procedures for the
* Riverwood Int'l Corp. v. Employers Ins. of Wausau, 420 F.3d 378,
382 (5th Cir.2005),.
App. 9
resolution of disputes, both major and minor, to prevent
the commercial interruptions that might otherwise result.’
The RLA distinguishes disputes by whether they seek
to create contractual rights or to enforce them.’ A major
dispute concerns the formation of a CBA, which arises
when a CBA is not in place or when a party seeks to
change the terms of a CBA.° A minor dispute concerns
grievances or the interpretation or application of agree-
ments covering rates of pay, rules, or working conditions.’
Pursuant to the RLA, minor disputes must be resolved
through a compulsory, binding arbitration procedure
before an adjustment board. These arbitral procedures
may be established by the union and the employer through
their CBA.” None questions that the disputes underlying
this appeal are minor ones under the RLA.
Prior to filing a RLA lawsuit in federal court, employ-
ees claiming a violation of their CBA-established rights
ordinarily must first exhaust the non-judicial remedies
specified in their CBA.” An employee may, however, bring
suit without previously exhausting these remedies if (1)
the union wrongfully refuses to process the employee’s
grievance, thereby violating its duty of fair representation;
(2) the employer’s conduct amounts to a repudiation of the
* Cont'l Airlines, Inc. v. Int’l Bhd. Of Teamsters, 391 F.3d 613, 616-
17 (5th Cir.2004).
* Consol. Rail Corp. v. Ry. Labor Executives’ Ass’n, 491 U.S. 299,
302, 109 S.Ct. 2477, 105 L.Ed.2d 250 (1989).
* Td.
” Id. at 303, 109 S.Ct. 2477.
* Id.
* Morales v. S. Pac. Transp. Co., 894 F.2d 743, 745 (5th Cir.1990).
App. 10
specified contractual, remedial procedures; or (3) exhaus-
tion of the contractual remedies would be futile.”
When an RLA lawsuit arising from a minor dispute is
properly before us, we will only review an arbitral decision
and award on one of three narrow and exclusive grounds:
(1) whether the Board failed to comply with the RLA’s
requirements; (2) whether the Board failed to confine itself
to matters within the scope of its jurisdiction; and (3)
whether the Board’s decision was the result of fraud or
corruption.'' We have recognized a fourth, implied ground
for review: whether an award was rendered in violation of
a party’s due process rights.” Absent one of these grounds,
an adjustment board’s findings and orders are binding and
conclusive as to the parties." Thus, unless we find that an
adjustment board’s arbitral award is “wholly baseless and
completely without reason,” we must affirm the Board’s
decision. “
B. Merits
On appeal, the plaintiffs contend that the district
court erroneously granted summary judgment in favor of
Continental and IAM (collectively, “the defendants”),
because (1) the plaintiffs do have standing to bring an action
under the RLA; (2) the plaintiffs were unconstitutionally
” Rabalais v. Dresser Indus., Inc., 566 F.2d 518, 519 (5th Cir.1978).
" Cont’ Airlines, 391 F.3d at 617.
* Bhd. of Locomotive Eng’rs v. St. Louis Sw. Ry. Co., 757 F.2d 656,
661 (5th Cir. 1985).
* E. Air Lines, Inc. v. Transp. Workers Union, 580 F.2d 169, 172
(5th Cir.1978).
4 Id.
App. 11
denied due process, as they were not provided sufficient
notice, and the Board failed to maintain a record of the
arbitral hearing; and (3) the Award was “wholly baseless
and completely without reason.” The plaintiffs explicitly
disavow any claim that the IAM breached its duty of fair
representation.
In contrast, the defendants urge us to affirm the
district court, because (1) Boorstein failed to exhaust the
requisite arbitral remedies under the CBA; (2) all of the
plaintiffs lack standing to bring an RLA action; (3) the
plaintiffs’ constitutional due-process rights were not
violated; and (4) the Award was not “wholly baseless and
completely without reason.”
i. Boorstein’s Claim
On appeal, Continental argues that Boorstein’s claim
is not viable because of her failure to exhaust her non-
judicial remedies under the CBA. We agree.
It is undisputed that Boorstein not only failed to file a
grievance regarding the unfavorable adjustment of her
non-competitive seniority, but, despite receiving notice of
her right to do so, she failed to request review and correc-
tion of any adjustment within the thirty-day period made
available to all flight attendants by the Board’s award, all
in derogation of the CBA. Boorstein does not offer, and our
own review fails to reveal, any reason why her failure to
pursue the appropriate remedies under the CBA should be
excused.
In addition, the Board was not required to provide
Boorstein with personal notice of the February 2002
hearing. As a flight attendant and thus a subscriber to the
App. 12
CBA, Boorstein had authorized the IAM to act exclusively
on her behalf. Thus, as the district court correctly recog-
nized, notice to the IAM-Boorstein’s representative-
constituted adequate notice to Boorstein and all similarly-
situated employees who had not filed individual griev-
ances.” We affirm the district court’s dismissal of Boor-
stein’s claims.
ii. Mitchell’s and Bale’s Claims
In McNair v. United States Postal Service, we held
that, under the Labor Management Relations Act
(“LMRA”),” which was made applicable by the Postal
Reorganization Act”:
When a collective bargaining agreement establishes a
mandatory, binding grievance procedure and gives the
union the exclusive right to pursue claims on behalf of
aggrieved employees, the results obtained by the union are
normally conclusive of the employees’ rights under the
agreement. This means, of course, that an aggrieved
worker whose employment is governed by such an agree-
ment normally lacks standing independently ... to attack
in court the results of the grievance process. ...
These rules are not, however, without exception. It is
established that, if the union has breached its duty of fair
representation, by arbitrarily refusing to pursue a claim
through the grievance process or by doing so in a perfunctory
'* See Bhd. of Ry., Airline, & S.S. Clerks v. St. Louis S.W. Ry. Co.,
676 F.2d 132, 136 (5th Cir. 1982).
* 29 U.S.C. §§ 141 et seq.
” 39 U.S.C. § 1209.
App. 13
or otherwise inadequate manner, an aggrieved employee is
not foreclosed by the results of the grievance process. He
may sue his employer or his union or both but, in order to
recover, he must prove that the union breached its duty of
fair representation and that the employer breached the
collective bargaining agreement. *
As we explained in Acuff v. United Papermakers &
Paperworkers, which was decided under the National
Labor Relations Act (“NLRA”),” this reality is necessary to
effectuate the purposes behind federal labor statutes,
which require that the interests of particular individuals
be subordinated to the interests of the group at the con-
tract-negotiation stage and beyond.” If an employee could
compel arbitration of a grievance without his union’s
blessings, a CBA’s contractual conflict-resolution proce-
dures would be substantially undermined, “thus destroy-
ing the employer’s confidence in the union’s authority and
returning the individual grievant to the vagaries of inde-
pendent and unsystematic negotiation.” The same can be
said of an employee’s ability to seek judicial review of an
arbitral award, after being abandoned by his union.”
Here, the plaintiffs recognize our decisions in McNair
and Acuff and do not dispute their holdings, agreeing that
an individual employee lacks standing to seek review of an
arbitral award under the LMRA and NLRA, except that an
* 768 F.2d 730, 735 (5th Cir. 1985).
* 29 U.S.C. §§ 151 et seq.
* 404 F.2d 169, 171 (5th Cir. 1969).
** Vaca v. Sipes, 386 U.S. 171, 191, 87 S.Ct. 903, 17 L.Ed.2d 842
(1967).
® McNair, 768 F.2d at 735.
App. 14
employee may bring a claim that the union breached its
duty of fair representation. Rather, the plaintiffs contend
that our holdings in McNair and Acuff are limited to
LMRA and NLRA claims; so they argue that they are not
barred from bringing claims under the RLA. The plaintiffs,
however, offer no support or reasoning for why claims
grounded in the RLA should be treated differently from
claims under the LMRA or the NLRA, other than their
transparent acronymic differences or location within the
United States Code.
Indeed, we see the plaintiffs’ argument as constituting
a distinction without difference. Regardless of whether a
CBA is established under the LMRA, NLRA, or RLA, its
existence is premised on effectuating a key purpose behind
federal labor statutes, viz., placing the interests of the
group ahead of the interests of the individual employees.
As we have previously recognized, it would be “paradoxical
in the extreme” if a union that is vested with the exclusive
authority to bring an employment grievance and pursue it
up to and through binding arbitration were not likewise
vested with the exclusive responsibility to instigate and
prosecute a review of an arbitral award in court.” Thus,
for the same reasons articulated in McNair and Acuff, we
conclude that, when a CBA formed pursuant to the RLA
establishes a mandatory, binding grievance procedure and
vests the union with the exclusive right to pursue claims
on behalf of aggrieved employees, an aggrieved employee
whose employment is governed by the CBA lacks standing
to attack the results of the grievance process in court — the
* Acuff, 404 F.2d at 171.
App. 15
sole exception being the authorization of an aggrieved
employee to bring an unfair representation claim.”
Here, the plaintiffs expressly disavowed any claim
that LAM breached its duty of fair representation. More-
over, the CBA explicitly establishes that the IAM shall
represent all flight attendants in grievance procedures.
Both Mitchell and Bale specifically bestowed on the LAM
(and never revoked) full power of attorney to represent
them at all stages of the grievance procedure. We therefore
affirm the district court’s conclusion that Mitchell and
Bale lacked standing to petition for review of the Award.”
* Contra McQuestion v. N.J. Transit Rail Operations, 892 F.2d 352,
354-55 (3d Cir.1990) (concluding that the plain language of 45 U.S.C.
§ 153. First (q) provides individual employees with uniquely individual
grievances standing to bring in federal court a petition for review of a
arbitral hearing initiated pursuant to the RLA). Unlike the underlying
arbitral hearing here, which was brought by the [AM on behalf of all
Continental flight attendants, the arbitration in McQuestion was
“conducted solely to resolve appellants’ uniquely individual grievance,”
such that the two plaintiffs/employees in McQuestion were the “ ‘real
parties in interest.’” Jd. at 354 (quoting McQuestion v. N.J. Transit Rail
Operations, No. 88-4037, slip op. at 10 (D.N.J. May 12, 1989)). We do
not foreclose and need not decide today whether an individual employee
may ever bring such “uniquely individual claims,” rendering him the
“real party in interest,” such that § 153 First (q) provides him standing
to bring an RLA claim. Rather, under the facts presented here and
those of our precedent, an aggrieved employee will generally lack
standing to bring an RLA action.
** As we have concluded that Boorstein failed to exhaust her CBA-
created procedural remedies and that Mitchell and Bale lack standing
to bring a petition for review under the RLA, we need not reach the
plaintiffs’ constitutional due-process claims or their contention that the
Award was “wholly baseless and completely without reason.”
App. 16
III. CONCLUSION
Today, we logically extend our holdings in McNair and
Acuff to RLA cases, concluding that when a CBA that is
formed pursuant to the RLA establishes a mandatory,
binding grievance procedure and gives the union the
exclusive right to pursue claims on behalf of aggrieved
employees, one whose employment is governed by the CBA
lacks standing to attack the results of the grievance
process in court, except only that an employee has stand-
ing to bring a claim of unfair representation. We also
acknowledge and apply our precedent that requires an
employee to exhaust his procedural remedies under a CBA
before commencing a RLA lawsuit. Based on the applicable
law and our extensive review of the parties’ briefs and the
record on appeal, we conclude that the district court did
not commit any error. Accordingly, we affirm the summary
judgment of the district court in favor of the defendants.
AFFIRMED.
App. 17
2005 WL 2708192
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MARILYN MITCHELL, § CIVIL ACTION NO.
KEVIN BALE, andSUSAN § _ H-04-3470
BOORSTEIN,
Plaintiffs,
v.
CONTINENTAL AIRLINES,
INC. and INTERNATIONAL
ASSOCIATION OF MA-
CHINISTS AND AERO-
SPACE WORKERS,
Defendants.
CP G2 Or COP “OP (OP COR KO? LO? COR COP
MEMORANDUM OPINION AND ORDER
Plaintiffs, Marilyn Mitchell, Kevin Bale, and Susan
Boorstein, bring this action against Continental Airlines,
Inc. (Continental) and the International Association of
Machinists and Aerospace Workers (IAMAW) seeking to
vacate the Decision of the Chairman and Award of the
System Board of Adjustment (Decision and Award) in the
arbitration between IAMAW and Continental on griev-
ances brought by Mitchell, Bale, and others regarding
Continental’s retroactive adjustment of flight attendants’
seniority dates. Pending before the court is Plaintiffs’
Petition for Review (Docket Entry No. 1). The parties
agree that the case should be resolved by dispositive
App. 18
motion.’ For the reasons explained below, the court con-
cludes that the petition should be denied, and this action
dismissed.
I. Factual Background
Plaintiffs are Continental flight attendants whose
employment is governed by a collective bargaining agree-
ment (CBA) between Continental and the IAMAW under
which the IAMAW serves as the exclusive bargaining
representative for all flight attendants.’ The CBA con-
tains, inter alia, procedures for resolving grievances over
the construction and application of its terms, which
‘ Plaintiffs’ Reply Brief in Support of Petition for Review, Docket
Entry No. 54, p. 2 n.1.
* See Petition for Review (PR), Docket Entry No. 1, 72, and
Excerpts for Agreement between Continental Airlines, Inc. and [AMAW,
Exhibit 3 in Joint Appendix to Briefs of Continental Airlines, Inc., and
LAMAW, attached to Docket Entry No. 47 (Joint Appendix). All exhibits
contained in the Joint Appendix are authenticated by the Declaration of
Robert S. Clayman, I[AMAW’s counsel at the arbitration hearing
(Clayman Declaration). Although plaintiffs argue that many of the
exhibits in the Joint Appendix should be stricken because Clayman has
not properly authenticated his Declaration, plaintiffs have not argued
that the grievance procedures they followed are non-binding, or that the
exhibits contained in the Joint Appendix are not the documents that
defendants represent them to be, i.e., true copies of excerpts from the
CBA, grievances filed with Continental, exhibits presented to the
arbitration board, and communications between the parties. Moreover,
the Joint Appendix contains many exhibits to which plaintiffs have
lodged no objection. The only exhibits on which the court has relied are
exhibits to which plaintiffs have not objected. See Objections to the
Exhibits in Defendants’ Joint Appendix, Exhibit A attached to Plaintiffs’
Reply Brief in Support of Petition for Review, Docket Entry No. 54.
App. 19
provide for final and binding arbitration before a Systems
Board of Adjustment.°
Continental flight attendants accrue various types of
seniority, which are classified as either competitive or non-
competitive. The CBA requires Continental to post bi-
annually a list of flight attendants’ competitive seniority
dates. Flight attendants have thirty days after the list is
posted to protest errors. Competitive seniority is not at
issue in this case. (PR J 14) The CBA does not require
Continental to post flight attendants’ non-competitive
seniority dates. (PR J 15) Instead, non-competitive senior-
ity dates are communicated to flight attendants in various
ways. Pay seniority dates appear on pay stubs. Vacation
seniority is reported in annual statements to individual
flight attendants. Jump-seat and pass-riding seniority is
based either on the “JA” entry in Continental’s SONIC
computer system or on the date showing on a company
identification card. Flight attendants requesting tickets
on-line have sometimes been surprised to find that their
jump-seat and pass-riding seniority dates have been
adjusted without notice. (PR J 17)
In 1996 Boorstein learned that her jump-seat senior-
ity date had been changed from her date of hire, November
11, 1968, to a date in 1971. (PR J 62) When she belatedly
received a cake for her 30th anniversary with Continental,
Boorstein learned that her company service date had also
been changed. (PR 7 63) Boorstein alleges that when she
* See Exhibit 3 in the Joint Appendix and Clayman Declaration,
q 3. Clayman explains that a Systems Board of Adjustment is the
airline industry counterpart of the statutorily established National
Railway Adjustment Board (NRAB) process for resolving industry-
related disputes. See 45 U.S.C. §§ 153, 184
App. 20
inquired about the adjustments “her seniority was again
adversely and unequally impacted.” (PR J 64)
In 1997 Mitchell discovered that her vacation senior-
ity date was less advantageous than her records indicated
it should have been. (PR J 25) Mitchell alleges that when
she questioned the accuracy of her vacation seniority date,
Continental readjusted it even less favorably. (PR J 25) In
1999 Mitchell contacted the IAMAW “about various
seniority and contract violations.” (PR § 31) Plaintiffs
allege that during a meeting with a representative of
Continental’s Human Resources office Mitchell was told
that “Continental was aware that everyone had not been
similarly adjusted ... but ... that Continental did not
have the time or the manpower to go through the records
of 25,000 flight attendants to determine if the seniority
dates were adjusted as they should have been.” (PR { 35)
On May 24, 2000, Mitchell filed grievance no. 05446 in
which she complained that on May 20, 2000, unfair,
adverse adjustments were made to her non-competitive
seniority dates. (PR { 37) In the top, right-hand corner of
the grievance is a stamped notice signed and dated by
Mitchell that states: “I hereby authorize the International
Association of Machinists, with full power of attorney, to
represent me in all stages of the Grievance Procedure in
the presenting and settling of this grievance.” Mitchell’s
grievance was denied following both a step-one hearing
held on July 12, 2000, and a step-two hearing held on
September 8, 2000. (PR { 38) Although originally set for
April 10, 2001, arbitration before the National Mediation
* See Exhibit 8 in the Joint Appendix at page 9.
App. 21
Board took place in Washington, D.C., on February 5-6,
2002. (PR {J 38-41)
In 1997 Bale discovered that his vacation seniority
date was less advantageous than his records indicated it
should have been. (PR 7] 50-51) In the fall of 2000 Bale
contacted Continental’s Human Resources Department to
inquire about his non-competitive seniority dates. (PR
{i 53) Plaintiffs allege that on October 30, 2000, Continen-
tal advised Bale that his seniority dates had been adjusted
for company offered leaves that he had taken between
1991 and 1995. (PR 453) Based on Bales’ rate of pay,
plaintiffs allege that Bale’s vacation seniority date must
have been adjusted sometime after 1996 and before Bale
was to have received an extra week of vacation in 1997.
(PR Uf 51 and 55)
On August 15, 2000, Bale filed a grievance no. 06082
in which he complained that on that date Continental
engaged in an unfair and unequal adjustment of non-
competitive jump-seat seniority.” (PR [57) On June 27,
2001, Bale filed grievance no. 06540 in which he com-
plained that on May 30, 2001, Continental violated the
CBA by including Diane Carr and others in the same
category (i.e., managerial employees at the level of director
or above) in the jump-seat seniority system.’ (PR 9 57) In
the top, right-hand corner of each of Bale’s grievances is a
stamped notice signed and dated by Bale that states: “I
hereby authorize the International Association of Machin-
ists, with full power of attorney, to represent me in all
stages of the Grievance Procedure in the presenting and
* See Exhibit 5 in the Joint Appendix.
* See Exhibit 20 in the Joint Appendix.
App. 22
settling of this grievance.” Each of Bale’s grievances was
denied following both step-one and step-two hearings.* (PR
{ 57) Continental explained that Bale’s non-competitive
jump-seat seniority date had been adjusted in compliance
with various work rules and agreements that allow flight
attendants to maintain but not to accrue non-competitive
seniority during periods of personal and/or company
offered leave. An arbitration was scheduled for February 5,
2002. (PR 57)
Mitchell’s grievance no. 05446 and Bale’s grievance nos.
06082 and 06540 were considered together with grievances
filed by three other individuals (Sonnichsen, Bice, and Shaw)
at an arbitration hearing conducted by a three-person
System Board (Board) consisting of a union representative,
a company representative, and a neutral third-party chair
on February 5-6, 2002, in Washington, D.C.’ “The five
individual grievances, which [were] brought together for
decision, all involve[d] adjustments to vacation, pass, or
company seniority, and all of which were made substan-
tially after the events occurred which occasioned the
adjustment of seniority by the company.” “Testimony
indicated that some adjustments were made when an
individual flight attendant asked a question regarding his
or her seniority. Accordingly, in certain cases adjustments
were made for some flight attendants, but not for others.””
” See Exhibit 5 (grievance no. 06082) at page 5 and Exhibit 20
(grievance no. 06540) at page 4, in the Joint Appendix.
* See Exhibits 5 and 20 in the Joint Appendix.
* See Decision of the Chairman and Award of the Board, Exhibit 1
in the Joint Appendix at page 2.
'° Id. at p. 2.
" Id. at p. 4.
‘App. 23
The Board identified the issue in dispute — “Were the
various adjustments which were made to flight attendant
seniority proper, as in some cases they were made long
after the events which caused the adjustments, and, if not,
what is the appropriate remedy?”
The [AMAW argued to the Board that
the doctrine of estoppel bars the company from
retroactively altering seniority dates to correct
errors that the company has permitted to stand
for long periods of time. It further contend|[ed]
that the doctrine of laches bars the company
from belatedly asserting a right to adjust senior-
ity. Finally, the [[AMAW] contend[ed] that the
principles of disparate treatment prohibit the
company from selectively adjusting seniority
rights. As a remedy the [L[AMAW] suggest/ed]
that: (1) the company be prohibited from making
any adjustments to grievants’ seniority to reflect
an event that occurred more than one year in the
past; (2) that the company be required to make
grievants whole for the vacation and other bene-
fits lost as a result of the company’s adjustments
to their seniority; (3) that, in the future, the
company may only look back for one year in mak-
ing adjustments to seniority, and that flight at-
tendants have one year in which to challenge
such seniority adjustments; and (4) that for a
sixty (60) day period following the issuance of the
decision in this case, flight attendants may notify
the company that it retroactively adjusted their
seniority to reflect an event that occurred more
than one year ago and that the company shall re-
scind such adjustments and make the affected
” oe
App. 24
flight attendants whole for the vacation and
other benefits lost as a result of the company’s
adjustments to their seniority.”
Continental argued that it had the right to adjust
flight attendants’ non-competitive seniority dates in
compliance with work rules and agreements that allow
flight attendants to maintain but not to accrue non-
competitive seniority during periods of personal and/or
company offered leave. Continental contended that it
“should not be held to the same time limits of thirty (30)
days which are contained in the collective bargaining
agreement because nothing in that agreement or the past
practice of the parties indicates any intent to place such
restrictions on the company’s ability to administer senior-
ity adjustments.” Continental also argued that
[uJnderlying time limits on filing of claims is the
interest in discouraging ‘sleeping on one’s rights’
or appearing to acquiesce to a given policy or
practice. In contrast, there is no reason or princi-
ple justifying rejection, based merely on the pas-
sage of time, of accurate seniority adjustments.
[Continental suggested that if the Board con-
cludes that the timing of adjustments is subject
to some rule of reasonableness, a time limit far
different from the 30-day period for filing pro-
tests and grievances must be used. It suggest[ed]
that it should be no less than one calendar year
after conclusion of the event giving rise to the ad-
justment (such as the flight attendant returning
to active duty), or after the regular publication of
the seniority date (such as for vacation seniority).
' Id. at pp. 4-5.
‘* Id. at p. 5.
App. 25
[Continental also argued] that if it is limited to
going back one year, flight attendants likewise
should be limited in seeking revisions of estab-
lished seniority, or adjustments made to senior-
ity, more than one year prior to the date of the
adjustment.”
The Board first decided that it lacked “jurisdiction to
go back further than the beginning of the collective bar-
gaining agreement between the Company and the
IAM[AW] at the time the grievances being heard were
filed,””* i.e., April 1, 2000.” The board then decided that
for retroactive adjustments that occurred within
the last two years [beginning on the date of the
award, i.e., May 17, 2002], flight attendants may
protest such adjustments in their seniority dates
which occurred more than a year after the event
which triggered the adjustment. They may do so
within 30 days of the date on which this award is
rendered, and the parties shall have the joint ob-
ligation of informing all flight attendants of this
decision. Flight attendants who are on leaves of
absence shall have 30 days after their return to
duty to file such protests. In the event a flight at-
tendant files such a protest, the company may
look at any event which concluded during the
two-year period and make adjustments to include
any non-duty time which enced during that two-
year period. For the future, the company shall
have a period of one year from the date on which
a flight attendant returns to duty to adjust his or
* Id. at pp. 5-6.
° Id. at pp. 6-7.
See Title Page of Agreement between Continental Airlines, Inc.
and L[AMAW, Exhibit 3 in the Joint Appendix.
App. 26
her seniority date. Likewise, flight attendants
will be limited in challenging adjustments made
to seniority more than one year prior to the daie
of the adjustment. Within that time parameter,
individual flight attendants shall have 30 days
from the date on which they first were notified by
the Company (e.g., System Seniority posting, pay
register, annual retirement statement, and an-
nual vacation notification letter) to file a pro-
test.
The Board also decided that its ruling would apply to
Bale’s individual grievance,” denied grievances related to
individuals holding managerial positions at the director
level and above as untimely,” and denied Mitchell’s “griev-
ances claiming that the Company incorrectly adjusted her
vacation, pay and JA [jump seat] seniority dates ...
because the adjustments were made contemporaneously.””
Finally, the Board retained jurisdiction of “all disputes
arising based upon this decision including questions
regarding remedy.”
On May 20, 2002, Continental and the IAMAW jointly
issued a notice to all flight attendants stating that “Arbitra-
tor Robert O. Harris has issued his decision in the matter of
several seniority grievances. His decision has required a joint
obligation of the parties to inform the flight attendants of the
award.” The joint notice explained the terms of the award
* See Decision of the Chairman and Award of the Board, Exhibit 1
in the Joint Appendix at pages 7-8.
° Id. at p. 8.
* Id.
21 Id
” Id. at p. 9.
* Exhibit 66 in the Joint Appendix.
App. 27
and warned that “all claims must be filed no later than
June 17, 2002. Any request, claim or grievance filed after
that date will be considered untimely and will not be
processed. Copies of the decision are posted in the bulletin
books for review or is available from your Union represen-
tative.” On the same day IAMAW District 142 also issued
a separate notice that described the arbitration decision to
“(ajll Continental [flight [alttendants.””
On or about October 14, 2002, the Board issued a
second Decision and Award that resolved grievances
submitted to it pursuant to the Decision and Award dated
May 17, 2002.” This Decision and Award resolved griev-
ance no. 07607 brought by Bale:
The Grievant claims his pass, pay and vacation
seniority dates were adjusted in October 2000.
The Company’s records show that the adjust-
ments were actually made in September 1998,
outside the time frame for claims that can be
submitted under the Decision and Award.”
Plaintiffs ask the court to vacate and remand the
Decision and Award, and to enjoin Continental from
implementing it. (PR 9 12) Plaintiffs contend that the
Decision and Award “fails to comply with the requirements
of the ... [Railway Labor Act] RLA, fails to conform or
confine itself to matters within the scope of its jurisdiction,
is based upon fraud or corruption and has denied
ay
* Exhibit 67 in the Joint Appendix.
* Exhibit 2 in the Joint Appendix.
* Id. at pp. 2-3.
App. 28
{plaintiffs and others similarly situated due process of
law.” (PR { 12)
II. Plaintiffs’ Claims
In their Petition for Review (Docket Entry No. 1)
plaintiffs assert claims for violation of the RLA and for
violation of their right to due process guaranteed by the
Fifth Amendment of the United States Constitution.
A. Railway Labor Act Claims
Plaintiffs assert two RLA claims: (1) the Decision and
Award does not comply with the RLA (PR {J 84-90), and
(2) the Decision and Award fails to conform or confine
itself to matters within the scope of the board’s jurisdiction
(PR 7 91-94).
Citing McNair v. United States Postal Service, 768
F.2d 730, 735 (5th Cir. 1985) (per curiam), defendants
argue that this action should be dismissed because “indi-
vidual employees lack standing to seek judicial review of a
Systems Board of Adjustment award when, as here, a
Union as their exclusive bargaining representative has
prosecuted the grievances on their behalf.”” Citing Acuff v.
United Papermakers & Paperworkers, AFL-CIO, 404 F.2d
169 (5th Cir. 1968), cert. denied, 89 S.Ct. 1466 (1969), and
Clark v. Hein-Werner Corp., 99 N.W.2d 132 (Wis. 1959), cert.
denied, 80 S.Ct. 878 (1960), plaintiffs respond that defen-
dants’ argument is contradicted by cases that have recog-
nized an individual’s standing to challenge an arbitration
* Defendant Continental AirLines, Inc.’s Response to Plaintiffs’
Petition for Review, Docket Entry No. 48, p. 13.
App. 29
award when the interests of the individual employees
differ from the interests of their union.”
1. Standing Under the RLA
In McNair the Fifth Circuit recognized that
[wlhen a collective bargaining agreement estab-
lishes a mandatory, binding grievance procedure
and gives the union the exclusive right to pursue
claims on behalf of aggrieved employees, the re-
sults obtained by the union are normally conclusive
of the employees’ rights under the agreement.
McNair, 768 F.2d at 735 (citing Hines v. Anchor Motor
Freight, Inc., 96 S.Ct. 1048 (1976), and Vaca v. Sipes, 87
S.Ct. 903 (1967)). “This means, of course, that an ag-
grieved worker whose employment is governed by such an
agreement normally lacks standing independently to
initiate grievance procedures, to sue for breach of the
collective bargaining agreement, or to attack in court the
results of the grievance process.” Jd. (citing Acuff, 404 F.2d
at 171). Nevertheless, the court also recognized that
“[t}hese rules are not ... without exception.” Jd. The court
explained that
if the union has breached its duty of fair repre-
sentation, by arbitrarily refusing to pursue a
claim through the grievance process or by doing so
in a perfunctory or otherwise inadequate manner,
an aggrieved employee is not foreclosed by the re-
sults of the grievance process. He may sue his em-
ployer or his union or both but, in order to recover,
* Plaintiffs’ Reply Brief in Support of Petition for Review, Docket
Entry No. 54, fourth through seventh unnumbered pages.
App. 30
he must prove that the union breached its duty of
fair representation and that the employer
breached the collective bargaining agreement.
Id. (citing Vaca, 87 S.Ct. at 903).
The cases plaintiffs cite similarly recognize that
individual employees seeking to challenge an award made
by a system board of adjustment at an arbitration, after
the union — as their exclusive bargaining representative —
has prosecuted the grievances on their behalf, must show
both that the company breached the CBA and that the
union breached its duty of fair representation. See Acuff,
404 F.2d at 171 (individual employees lacked ability to
intervene in arbitration proceeding where union had not
breached its duty of fair representation); Clark, 99 N.W.2d
at 136-137 (applying fair representation test to decide
whether individual employees were entitled to relief from
arbitration award).
2. Fair Representation
(a) Plaintiffs Disavow Fair Representation Claim
The Fifth Circuit’s opinions in Acuff, 404 F.2d at 169,
and McNair, 768 F.2d at 730, recognize that individual
employees lack standing to challenge arbitration awards
made pursuant to a binding arbitration provision where,
as here, the aggrieved employees were represented by
their union unless the employees can show that the union
breached its duty of fair representation. Plaintiffs do not
dispute that the CBA at issue in this case contains a
mandatory, binding arbitration provision, or that the
IAMAW held the exclusive right to represent them at the
App. 31
arbitration.” Moreover, plaintiffs expressly disavow any
claim that the IAMAW breached its duty of fair represen-
tation:
Plaintiffs assert no claims against IAMAW, and
in particular, Plaintiffs do not assert any claim of
breach of the duty of fair representation. Rather,
IAMAW is joined here for the sole reason that as
a party to the arbitration which resulted in the
Decision and Award, it is a party needed for just
adjudication under Rule 19(a), Fed. R. Civ. P.
(PR 47)” Nevertheless, citing Clark, 99 N.W.2d at 137-
138, plaintiffs argue that they have standing to bring this
action because “where the substantial interests of the
representative are not necessarily or even probably the
same as those he purports to represent, due process
* See Section 20(B\9) of the April 1, 2000-October 1, 2004,
Agreement between Continental Airlines, Inc., and the LAMAW, Exhibit
3 in the Joint Appendix (“Decisions of the Board in all cases referred to
it shall be final and binding upon the parties hereto and the parties
must abide by that decision.”).
* See IAMAW’s Brief in Opposition, Docket Entry No. 47, p. 14 &
n.3 (asserting that any duty-of-fair-representation claim would be time
barred by the six-month statute of limitations applicable to such
claims). See Wood v. Houston Belt & Terminal Ry., 958 F .2d 95, 97 (5th
Cir. 1992) (six-month limitation period applies to hybrid actions
brought by individual employees against their employers involving
interpretation of a CBA, and against their unions for breach of the
union’s duty of fair representation), and Smith v. Int'l Org. of Masters,
Mates & Pilots, 296 F.3d 380, 382-383 (5th Cir. 2002) (six-month
limitations period applies to fair representation claim brought only
against an employee’s union).
App. 32
militates vigorously against giving the decision effect upon
them.”
(b) Differing Interests
Plaintiffs contend that “while IAM[AW] may assert
that it is not interested in having the award set aside,
IAM[AW] brief p. 15, [p]laintiffs, whose interests are
different, have standing to seek review of that award.””
Plaintiffs explain that “[p]resumably, the Union does not
want the award set aside based upon the prospective relief
it obtained, LAM[AW] brief p. 15, ... [but that] despite its
assertion of success, it was highly unsuccessful in restor-
ing [their] ... selectively and improperly adjusted senior-
ity.”
In Clark the union’s successful pursuit of its position
resulted in the demotion of several employees. The Su-
preme Court of Wisconsin held that the arbitration award
should not be binding upon adversely affected employees
whose interests were diametrically opposed to the position
espoused by the union where those employees were not
given notice of the arbitration hearing. The Court ex-
plained that
where the interests of two groups of employees
are diametrically opposed to each other and the
union espouses the cause of one in the arbitra-
tion, it follows as a matter of law that there has
* Plaintiffs’ Reply Brief in Support of Petition for Review, Docket
Entry No. 54, fourth through seventh unnumbered pages, fifth-sixth
unnumbered pages.
* Jd. at sixth unnumbered page.
* Id. at n.6.
App. 33
been no fair representation of the other group...
even ... though, in choosing the cause of which
group to espouse, the union acts completely ob-
jectively and with the best motives. The old ad-
age, that one cannot serve two masters, is
particularly applicable to such a situation.
99 N.W.2d at 137. The Court reasoned that even though
the employer’s position at arbitration was identical to the
plaintiffs’ position, “the plaintiffs were entitled to notice of
the hearing, and an opportunity to intervene, as a matter
of sound labor policy.” Jd. at 138. Since, as explained
below, Clark is no longer good law on the duty of fair
representation, and since the plaintiffs in this case either
participated in the arbitration (Mitchell and Bale) or failed
to file a grievance (Boorstein), the court is not persuaded
that Clark supports plaintiffs’ application for relief from
the arbitration award. See Gray v. Marinette County, 546
N.W.2d 553, 560 (Wis. Ct. App. 1996), and Miller Brewing
Co. v. Brewery Workers Local Union No. 9, 562 F.Supp.
1368, 1373 (E.D. Wis. 1983), aff’d in part and rev’d in part
on other grounds, 739 F.2d 1159 (7th Cir. 1984), cert.
denied, 105 S.Ct. 912 (1985).
In Miller Brewing the court declared that “Clark is not
good law.” 562 F.Supp. at 1373. The court explained that
Clark was decided seven years before the United States
Supreme Court announced the current standard for
evaluating the union’s execution of its duty in Vaca uv.
Sipes, in which the Court held that “[a] breach of the
statutory duty of fair representation occurs only when a
union’s conduct toward a member of the collective bargain-
ing unit is arbitrary, discriminatory, or in bad faith.” Jd.
(citing Vaca, 87 S.Ct. at 916). In Gray the court rejected
Clark as having been “decided in 1959, while the law on
App. 34
fair representation was ‘still in a state of flux.’” 546
N.W.2d at 560. The court explained that the Supreme
Court’s decision in Humphrey v. Moore, 84 S.Ct. 363
(1964), extinguished the rationale underlying the Clark
decision. 546 N.W.2d at 560. In Humphrey the Supreme
Court held that a union does not breach its duty of fair
representation where it takes a “good faith position con-
trary to that of some individuals whom it represents [] or
in supporting the position of one group of employees
against that of another.” 84 S.Ct. at 371. Reasoning that
“[clonflict between employees represented by the same
union is a recurring fact,” and that gagging the union
would weaken the collective bargaining and grievance
process, the Court held that unions must be free to take a
position on significant disputes and should not be neutral-
ized when the issue is between two sets of employees. Id.
at 371-372.
Since Clark is no longer recognized as good law, the
court is not persuaded that it supports the plaintiffs’ claim
for relief in this case. See Miller Brewing, 562 F.Supp. at
1373 (“Clark is not good law”). See also Gray, 546 N.W.2d
at 560 (explaining that Humphrey, 84 S.Ct. at 363, contra-
dicts any suggestion in Clark that when a union chooses to
represent a union member whose interests are “diametri-
cally opposed” to those of another member, the union has
breached its duty of fair representation to the second
member).
(c) Fifth Circuit Precedent
The law in this circuit has long been that individual
employees may not seek to vacate an arbitration award
App. 35
against the interests of its collective bargaining represen-
tative. See Acuff, 404 F.2d at 171-172. In Acuff the arbitra-
tor denied the grievances of a number of terminated
employees and reinstated others without back pay. Some
of the employees moved to vacate the award. The district
court denied the motion, and the court of appeals affirmed
holding that unless the union breached its statutory duty
of fair representation the employees did not have the right
to override the interests of the group as a whole by seeking
to set aside the awards. Id. Asserting that “the interests of
particular individuals are subordinated to the interests of
the group,” the Fifth Circuit reasoned that “[i]t would be
paradoxical in the extreme if the union, which is author-
ized to decide whether a grievance is to be pursued to the
arbitration state at all, could not be authorized to assume
full responsibility for a grievance it did pursue, without
the intervention of the individual union members immedi-
ately concerned.” Jd.
(1) Mitchell and Bale
Since Mitchell and Bale each filed grievances alleging
that Continental had violated the terms of the CBA, and
each granted the LAMAW “full power of attorney, to repre-
sent [them] in all stages of the [glrievance [p]rocedure in
the presenting and settling of [their] grievance[s],”” and
since neither Mitchell nor Bale alleges that the IAMAW
breached its duty of fair representation, the court con-
cludes that Mitchell and Bale are bound to abide by the
* See Exhibit 5 (grievance no. 06082), Exhibit 8 (grievance no.
05446), and Exhibit 20 (grievance no. 06540) in the Joint Appendix.
App. 36
decision of the Board. See Acuff, 404 F.2d at 171-172, and
McNair, 768 F.2d at 735.
(2) Boorstein
Although, unlike Mitchell and Bale, Boorstein never
filed a grievance alleging that Continental had violated
the terms of the CBA and did not receive individual notice
of the arbitration, the court concludes that she, too, is
bound to abide by the decision of the Board because she is
a member of the same collective bargaining unit as
Mitchell and Bale and, like them, was represented at the
arbitration by the IAMAW. Plaintiffs cite Steward v.
Manan, 351 F.3d 1338, 1344-1345 (11th Cir. 2003), as a case
in which a group of pilots who had not received notice of a
pending arbitration successfully brought suit to set aside
the resulting award.
Steward involved the issue of whether the statutory
notice provision contained in 45 U.S.C. § 153 First ()
applied to proceedings before an airline board of adjust-
ment. 351 F.3d at 1344-1345. The statutory notice provi-
sion requires an adjustment board to “give due notice of all
hearings to the employee or employees and the carrier or
carriers involved in any disputes submitted to them.” 45
U.S.C. § 153 First (j). An employee is “involved” for pur-
poses of § 153 First (j) if she would be adversely affected
by the board’s decision. Jd. at 1345 (citing Estes v. Union
Terminal Co., 89 F.2d 768, 770 (5th Cir. 1937)). After
holding that the due notice requirement of § 153 First (j)
applies to airline boards of adjustment, the court ad-
dressed the specific issue before it: whether a group of
individual pilots who were directly and adversely affected
by the arbitration award were entitled to notice of the
App. 37
arbitration hearing. Jd. at 1345-1346. The court distin-
guished the facts before it from the typical case:
[t]he Supreme Court has said that due notice is a
flexible standard which takes into account the
realities of the relationships between the em-
ployer, the union, and the employee. See Elgin, J.
& E. Ry. Co. v. Burley, 66 S.Ct. 721, 723 & n.9
(1946). In the usual case, the union represents
the employee before the board. Id. at 723; Estes
v. Union Terminal Co., 89 F.2d 768, 769-771 (5th
Cir. 1937). Thus, in the usual case, when the
board gives the union, rather than the employee,
notice of the hearing, courts will not automati-
cally set aside the board’s award for failure to
give due notice to the employee ... This, how-
ever, is the unusual case in which the union does
not represent the involved employees before the
board. We have said that, in these unusual cases,
the board should personally notify the involved
employees who are unrepresented.
Id. at 1346. Unlike the “unusual” case presented in Stew-
ard where the aggrieved employees were not represented
by the union, this case is the “usual case” because Boor-
stein, like Mitchell and Bale, was (and is) represented by
the IAMAW.
Notice to the union constitutes adequate notice to
employees like Boorstein who have not filed an individual
grievance. Bhd. of Ry., Airline & S.S. Clerks v. St. Louis
Southwestern Ry., 676 F.2d 132 (5th Cir. 1982).
The Board is obligated to notify an employee (or
his representative) of any proceeding that may
result in that employee’s losing his position. This
requirement should not prove burdensome in
most instances, since a letter to one or two union
App. 38
representatives normally will ensure that all ‘in-
volved’ parties are apprised of the dispute.
Id. at 135-136. Since the LAMAW had notice of the arbitra-
tion and represented the grievants at the arbitration, the
court concludes that Boorstein and other members of
plaintiffs’ collective bargaining unit who never filed a
grievance lack standing to challenge the resulting award
without showing that the [AMAW breached its duty of fair
representation. See Acuff, 404 F.2d at 169-171, and
McNair, 768 F.2d at 735.
3. Conclusions
Grievances of five individual flight attendants that
involved adjustments of non-competitive seniority for
vacation time, pass and jump seat riding, and/or company
seniority, all of which were made substantially after
occurrence of the events that occasioned the adjustments,
were brought together for binding arbitration at which the
grievants were all represented by the L[AMAW. The court
concludes that Mitchell and Bale, two of the five individual
grievants, lack standing to challenge the arbitration
award because they have not alleged that the LAMAW
breached its duty of fair representation. The court con-
cludes that Boorstein, a flight attendant who belongs to
the same collective bargaining unit as Mitchell and Bale
but who, unlike Mitchell and Bale, never filed a grievance,
also lacks standing to challenge the arbitration award
because, like Mitchell and Bale, she has not alleged that
the LAMAW breached its duty of fair representation.
Accordingly, the court concludes that the RLA claims
plaintiffs have asserted in their PR should be dismissed
for lack of subject matter jurisdiction. See McNair, 768
F.2d at 737 (determination that plaintiffs lack standing to
App. 39
sue robs the court of subject matter jurisdiction). Since
dismissals based on the court’s determination that it lacks
subject matter jurisdiction are not dismissals on the
merits, plaintiffs’ RLA claims will be dismissed without
prejudice. See Air Line Pilots Association, 567 F.Supp. at
72-74 (refusal to exercise jurisdiction establishes conclu-
sive effect only on issue of federal jurisdiction).
B. Fifth Amendment Claims
Plaintiffs allege that the Board denied their funda-
mental right to due process of law guaranteed by the Fifth
Amendment to the United States Constitution. (PR {J 95-
97) Plaintiffs’ allegations are that
96. By denying [pllaintiffs Mitchell and Bale
due notice that they would be required to repre-
sent themselves at the [a]rbitration hearing and
by failing to take any steps to insure that they
would not be made to endure trial by ambush,
the Chairman and the Board deprived [p]laintiffs
Mitchell and Bale of due process of law under the
Fifth Amendment to the Constitution of the
United States.
97. By denying [pllaintiff Boorstein due notice
that her rights would be determined at the
[aJrbitration and by denying her the opportunity
to be heard and to fully participate in a proceed-
ing wherein valuable rights of hers were decided
without her knowledge and participation, the
Chairman and the Board deprived [pllaintiff
Boorstein and those similarly situated to her of
due process of law under the Fifth Amendment to
the Constitution of the United States of America.
App. 40
(PR 79 96-97) Plaintiffs argue that the Chairman and
Board violated their fundamental right to due process “[i]n
[flailing to [mJaintain a [rlecord of the [hJearing at [w]hich
the [cllaims of [plaintiffs Mitchell and Bale [wlere
(hjeard,”” and “in [flailing to [p]rovide [nlotice of the
{hlearing to [pjlaintiff Boorstein and [o]ther [s]imilarly
[slituated ([fllight [alttendants, the [a]djustment [bloard
[vjiolated [f}undamental [d]ue [p]rocess [plrinciples of
[notice and the [rlight to be {hleard [wJhen [i]t [iJssued
[i]Jts [alward [iJmpacting Boorstein’s [sJeniority and the
[sleniority of [aJll [fllight [a]ttendants.””
Continental contends that this issue was put to rest
by the Supreme Court in Union Pacific Railroad v. Shee-
han, 99 S.Ct. 399 (1978) (per curiam), in which the Court
held that
[j]Judicial review of Adjustment Board orders is
limited to three specific categories: (1) failure of
the Adjustment Board to comply with the re-
quirements of the Railway Labor Act; (2) failure
of the Adjustment Board to conform, or confine,
itself .o matters within the scope of its jurisdic-
tion; and (3) fraud or corruption ... Only upon
one or more of these bases may a court set aside
an order of the Adjustment Board.
Id. at 402. Despite this language some courts, including
the Fifth Circuit, have held that a due process challenge
may constitute an independent ground for judicial review
of an arbitration award. See Atchison, Topeka and Santa
Fe Ry. Co. v. United Transportation Union, 175 F.3d 355,
* Plaintiffs’ Brief in Support of Petition for Review, Docket Entry
No. 43, p. 13.
* Id. at p. 18.
App. 41
357 (5th Cir. 1999) (this circuit “has recognized a fourth
basis for setting aside an award, in cases where the award
failed to meet the requirements of due process”) (citing
Brotherhood of Locomotive Engineers v. St. Louis South-
western Railway Co., 757 F.2d 656, 660-661 (5th Cir.
1985)). See also Hayes v. Western Weighing and Inspection
Bureau, 838 F.2d 1434, 1436 (5th Cir. 1988) (noting that
later decisions interpreting Sheehan “have cabined the
reach of the due process challenge”). Plaintiffs predicate
their due process claims on the fact that the Board did not
maintain a record of the proceedings before it, and the fact
that Boorstein and other flight attendants like her who
never filed a grievance did not receive notice of the arbi-
tration or an opportunity to be heard at the arbitration.
1. Failure to Maintain a Record
Since the court has already concluded that plaintiffs
lack standing to challenge the arbitration award under the
RLA, the court concludes that the Board’s failure to
maintain a record cannot have violated the plaintiffs’
rights to due process because even if there were a record to
review the court lacks jurisdiction to set aside the Board’s
decision based on its review of that record. See Cusak uv.
Trans-Global Solutions, Inc., 222 F.Supp.2d 834, 843 (S.D.
Tex. 2002) (characterizing lack of a complete record from
arbitration proceeding as “irrelevant” where court was
without power to set aside decision of the arbitrators).
2. Lack of Notice to Boorstein and Others Similarly
Situated
Citing Mullane v. Central Hanover Bank & Trust Co.,
70 S.Ct. 652, 657 (1950), plaintiffs argue that Boorstein as
App. 42
well as all other similarly situated flight attendants who
never filed a grievance based on adjustments made to
their non-competitive seniority were denied adequate
notice of the pendency of the arbitration and an opportu-
nity to present their claims regarding their seniority
rights to the arbitral Board.” In Mullane the Court stated
that
[aJn elementary and fundamental requirement of
due process in any proceeding which is to be ac-
corded finality is notice reasonably calculated,
under all the circumstances, to apprise inter-
ested parties of the pendency of the action and
afford them an opportunity to present their ob-
jections.
Id. Citing Elmore v. Chicago & Illinois Midland Railway
Co., 782 F.2d 94, 96-97 (7th Cir. 1986), plaintiffs assert
that their “vested seniority rights are without question
‘property’ within the meaning of the due process clause of
the Fifth Amendment,” and citing Primakow v. Railway
Express Agency, Inc., 56 F.Supp. 418, 416 (E.D. Wis. 1943),
plaintiffs argue that notice to the IAMAW was not notice
to them.”
Defendants argue that plaintiffs’ non-competitive
seniority should not be deemed a constitutionally pro-
tected property interest sufficient to trigger due process
protections of the Fifth Amendment, and that even if it is,
it should not be used to expand the notice and hearing
rights contained in the RLA.
* Id. at pp. 18-19.
* Id. at p. 19.
App. 43
Assuming without deciding that plaintiffs possess a
protected property interest in non-competitive seniority,
the court concludes that plaintiffs have failed to allege
facts sufficient to state a claim for violation of their Fifth
Amendment rights to due process because in this circuit
notice to the union constitutes notice to the employee. See
St. Louis Southwestern Ry., 676 F.2d at 136 (“the Board is
obligated to notify an employee (or his representative) of
any proceeding that may result in that employee’s losing
his position. (This requirement should not prove burden-
some in most instances, since a letter to one or two union
representatives normally will ensure that all ‘involved’
parties are apprised of the dispute”). The holding in
Primakow, 56 F.Supp. at 413, cited by the plaintiffs, is not
to the contrary.
In Primakow the plaintiff-employee claimed a senior-
ity status superior to that of another employee, Ella
Gregg, on whose behalf the union filed a grievance. At the
ensuing arbitration proceeding the union argued Gregg’s
cause, and the company argued the plaintiff’s cause.
Following an arbitration decisjon in Gregg’s favor, the
plaintiff contended that she was not bound by the decision
because she was not a party to the controversy and had
not received notice of the hearings before the arbitral
board. The court addressed the issues of whether the
plaintiff had due and timely notice of the hearings before
the board, and whether by her conduct she had waived
such notice. The court concluded that the plaintiff was
entitled to notice of the hearings because it could not “be
contended that the brotherhood was representing [her] in
the controversy|, and] . . . was in fact vigorously contesting
her claim and, in championing the cause of Mrs. Gregg,
[was actually] ... oppos{ing] the interests of the plaintiff.”
App. 44
Id. at 416. The court also concluded that since plaintiff
had written letters to the company about the matter in
controversy that she had not waived her right to notice of
the arbitration. Jd. Unlike the plaintiff in Primakow who
had written to the company about the controversy before
the arbitration took place, but was neither represented at
the arbitration nor notified by her union that the arbitra-
tion would take place, Boorstein never filed a grievance or
took any other steps to protect her non-competitive senior-
ity before the arbitration took place. Nevertheless, Boor-
stein was represented by the L[AMAW at the arbitration as
a member of the grievants’ collective bargaining unit.
Although St. Louis Southwestern Ry., 676 F.2d at 136,
and Primakow, 56 F.Supp. at 413, concerned the RLA’s
statutory notice requirement, the Board’s notice to the
IAMAW in satisfaction of the RLA’s statutory notice
requirement necessarily satisfies the Fifth Amendment’s
notice requirement. See Locomotive Eng’rs v. St. Louis
Southwest Ry., 757 F.2d 656 (5th Cir. 1985) (recognizing
due process as ground for judicial review but rejecting
constitutional claim that was based on the same reasoning
as a rejected statutorily-based claim for judicial review).
3. Conclusion
The root requirement of procedural due process is that
an individual be given notice and an opportunity to be
heard before he or she is deprived of a property interest.
Mullane, 70 S.Ct. at 657. Due process requires the oppor-
tunity to be‘heard at a meaningful time and in a meaning-
ful manner. Mathews v. Eldridge, 96 S.Ct. 893, 902 (1976).
Assuming without deciding that the CBA creates a pro-
tected property interest in non-competitive seniority the
App. 45
court concludes that plaintiffs have failed to allege facts
that state a claim for violation of their right to due process
because the court’s conclusion that they lack standing to
challenge the arbitration award under the RLA makes the
Board’s failure to maintain a record irrelevant, and be-
cause notice to the LAMAW constituted notice to Boorstein
and the other flight attendants who never filed a grievance
concerning Continental’s adjustments to their non-
competitive seniority. Accordingly, the court concludes that
the Fifth Amendment claims plaintiffs have asserted in
their Petition for Review should be dismissed for failure to
state a claim for which relief may be granted.
Ill. Conclusions and Order
For the reasons explained above, Plaintiffs’ Petition for
Review (Docket Entry No. 1) is DENIED, plaintiffs’ RLA
claims will be DISMISSED without prejudice, and
plaintiff’s claims for violation of their Fifth Amendment
rights to due process will be DISMISSED with preju-
dice.
SIGNED at Houston, Texas, on this 5th day of Au-
gust, 2005.
/s/ Sim Lake
SIM LAKE
UNITED STATES
DISTRICT JUDGE
App. 46
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MARILYN MITCHELL, KEVIN §
BALE, and SUSAN BOORSTEIN, §
Plaintiffs, ;
Vv. §
CONTINENTAL AIRLINES, INC.
and INTERNATIONAL ASSOCIA-
TION OF MACHINISTS AND
AEROSPACE WORKERS,
Defendants.
§ CIVIL ACTION NO.
H-04-3470
COP? Qn SOP COR Or
FINAL JUDGMENT
In accordance with the Memorandum Opinion and Order
denying plaintiffs’ petition for review, the claims that plaintiffs
have alleged under the Railway Labor Act are DISMISSED
without prejudice, and the claims that plaintiffs have
alleged under the Fifth Amendment to the United States
Constitution are DISMISSED with prejudice.
Costs will be taxed against plaintiffs.
This is a FINAL JUDGMENT.
SIGNED at Houston, Texas, on this 5th day of Au-
gust, 2005.
/s/ Sim Lake
SIM LAKE
UNITED STATES DISTRICT JUDGE
App. 47
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In the Matter of Arbitration
between
INTERNATIONAL ASSOCIATION
OF MACHINISTS DISTRICT 142
and
CONTINENTAL AIRLINES, INC.
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eeeee Eee HE E EH F
GRIEVANCE Nos. 04554 (Sonnichsen);
05473, 05446, and 06171 (Mitchell);
06050 (Bice); 06056 (Cruz);
06062, 06540, and 07236 (Bale); 06107 (Shaw)
DECISION OF THE CHAIRMAN
AND
AWARD OF THE BOARD
Appearances
For the Association
Robert S. Clayman
Guerrieri, Edmond & Clayman ye
For the Carrier
Jeffrey D. Wall, Esquire
System Board Members
From the Agsociation
Jeff Oliver
From the Carrier
Cindy Seffair
Neutral Chairman
Robert O. Harris
App. 48
Appointment
Under Title II of the Railway Labor Act, as amended,
the parties entered into a collective bargaining agreement
which provides in Section 19 for the establishment of a
System Board of Adjustment. The present Board, consist-
ing of Jeff Oliver, member appointed by the Association;
Cindy Seffair, member appointed by Continental Airlines;
and Robert O. Harris, chosen by the parties as the chair-
man and neutral member, was designated to hear and
decide the issues involved in the instant case.
The arbitration hearing was held on February 5 and
6, 2002 in Washington, D.C., where the parties presented
testimony, written evidence, and arguments to support
their respective positions. An executive session of the
Board also was held on February 6, 2002. Briefs were filed
on March 21, 2002. The arbitration proceeding now is
complete and the matter in dispute is ready for decision.
Facts
The five individual grievances, which have been
brought together for decision, all involve adjustments to
vacation, pass, or company seniority, and all of which were
made substantially after the events occurred which occa-
sioned the adjustment of seniority by the company. The
individual situations were summarized by the IAM, as
follows:
Kevin Bale: From October 1991 through October
1992, Bale took a company offered leave of ab-
sence. The company stated that in January 1991 it
began to make adjustments to pass seniority for
such leaves. However, upon his return and for ap-
proximately seven years thereafter, the company
App. 49
permitted Bale to use the seniority date on his
ID card for pass-riding purposes, a date which
was not adjusted to reflect his 1991 leave of ab-
sence.
Ann Bice: For approximately fifteen years, Bice
used a vacation seniority date of 3/24/75. In
March 2000, the company informed her that her
seniority date was incorrect and was being ad-
justed to 5/19/77, a loss of 787 days of seniority.
In January 2001, the company corrected its pre-
vious adjustment after further review and ad-
justed her seniority to 2/10/76, still a loss of 323
days of seniority. The revised adjustment re-
flected events which had occurred as early as
June 1975 and as late as July 1984.
Rebecca Cruz: For approximately ten years, Cruz
used a vacation seniority date of 6/11/75, until
the company notified her that it was adjusting
her date to 7/5/75, a loss of 24 days of seniority.
After Cruz inquired about the adjustment, on
December 1, 1999, the company reviewed its re-
cords and announced that her seniority would be
further adjusted to 2/1/76, a total loss of 204 days
of seniority. The revised adjustment reflected
events which had occurred as early as May 1982
and as late as March 1989.
Marilyn Mitchell: In June 1995, the company ad-
justed her seniority date to 7/20/70. For over
three years, Mitchell used this date. In Septem-
ber 1998, however, the company retroactively ad-
justed her seniority to 4/4/71, a loss of 258 days
of seniority. The company based its adjustment
on events which occurred as early as August
1991 and as late as June 1995.
App. 50
Arlene Sonnichsen: In August 1998, the Com-
pany made a timely, but partial, adjustment of
her time on furlough from 1994 through 1997.
Shortly thereafter she requested clarification re-
garding her seniority. As a result, in January
1999, the company made further adjustments to
her seniority based on events which had occurred
as early as August 1971 and including an ad-
justment for her entire time on furlough, result-
ing in a loss of 133 days of seniority.
The collective bargaining agreement requires a
biannual posting of a System Seniority List for flight
attendants for bidding seniority. There is no mention in
the agreement for posting other types of seniority: pay
seniority, vacation accrual seniority, jumpseat and pass-
riding seniority and company service seniority. The agree-
ment allows flight attendants 30 days within which to
protest errors in the bidding seniority list after its posting;
however, no posting or other regular listing of an individ-
ual’s seniority for other purposes ever has been made.
The company has communicated the several non-
competitive seniority dates in various ways. Pay seniority
dates appear on pay stubs since at least the first collective
bargaining agreement negotiated with the IAM; vacation
seniority has been sent to flight attendants annually;
jumpseat and pass-riding seniority has been made based
on the date appearing on their company identification
cards or JA entry in the SONIC computer system, al-
though recently, if a ticket was requested on line, a differ-
ent, adjusted date might be used, of which the flight
attendant may never have been informed.
Testimony indicated that some adjustments were made
when an individual flight attendant asked a question
App. 51
regarding his or her seniority. Accordingly, in certain cases
adjustments were made for some flight attendants, but not
for others.
Issue in Dispute
Were the various adjustments which were made to
flight attendant seniority proper, as in some cases they
were made long after the events which caused the adjust-
ments, and, if not, what is the appropriate remedy?
Contentions of the Parties
It is the contention of the union that the doctrine of
estoppel bars the company from retroactively altering
seniority dates to correct errors that the company has
permitted to stand for long periods of time. It further
contends that the doctrine of laches bars the company
from belatedly asserting a right to adjust seniority. Finally,
the union contends that the principles of disparate treat-
ment prohibit the company from selectively adjusting
seniority rights. As a remedy, the union suggests that: (1)
the company be prohibited from making any adjustments
to grievants’ seniority to reflect an event that occurred
more than one year it the past; (2) that the company be
required to make grievants whole for the vacation and
other benefits lost as a result of the company’s adjust-
ments to their seniority; (3) that, in the future, the com-
pany may only look back for one year in making
adjustments to seniority, and that flight attendants have
one year in which to challenge such seniority adjustments;
and (4) that for a sixty (60) day period following the
issuance of the decision in this case, flight attendants may
notify the company that it retroactively adjusted their
App. 52
seniority to reflect an event that occurred more than one
year ago and that the company shall rescind such adjust-
ments and make the affected flight attendants whole for
the vacation and other benefits lost as a result of the
company’s adjustments to their seniority.
The carrier takes the position that the company
should not be held to the same time limits of thirty (30)
days which are contained in the collective bargaining
agreement because nothing in that agreement or the past
practice of the parties indicates any intent to place such
restrictions on the company’s ability to administer senior-
ity adjustments. It further contends that application of a
purely procedural time limit rule to the administration of
seniority adjustments would adversely impact the sub-
stance or merits of the flight attendant seniority systems.
Permitting or denying otherwise correct adjustments
based solely on compliance with an arbitrary time limit
would, as a practical matter, result in unfair and inequita-
ble adjustments among similarly-situated members of the
bargaining unit. It maintains that, as a practical matter,
the company cannot be expected to administer its various
seniority systems by executing all adjustments within 30
days of each event giving rise to an adjustment. The
company notes that “Underlying time limits on filing of
claims is the interest in discouraging ‘sleeping an one’s
rights’ or appearing to acquiesce to a given policy or
practice. In contrast, there is no reason or principle justify-
ing rejection, based merely on the passage of time, of
accurate seniority adjustments.” The company suggests
that if the Board concludes that the timing of adjustments
is subject to some rule of reasonableness, a time limit far
different from the 30-day period for filing protests and
grievances must be used. It suggests that it should be no
App. 53
less than one calendar year after conclusion of the event
giving rise to the adjustment (such as the flight attendant
returning to active duty), or after the regular publication
of the seniority date (such as for vacation seniority). The
company also believes that if it is limited to going back one
year, flight attendants likewise should be limited in
seeking revisions of established seniority, or adjustments
made to seniority, more than one year prior to the date of
the adjustment. The company believes that limits must
apply equally whether the adjustment would be in the
flight attendant’s favor or not.
Discussion
Between 1979 and the present, Continental has
undergone four mergers, two bankruptcy proceedings, and
three strikes. The parties to this dispute are far different
from those who had set company seniority policy during
much of this period. It is clear from the parties positions,
stated above, that there is a genuine desire to equitably
resolve the problem presented by the various grievances
before the Board. The doctrines cited by the union are
concerned with equity and involve the basic_principle that
employees of the same class should be treated equally. The
record before this Board shows that in prior years and
prior administrations, a careful record of when an individ-
ual returned to work from a leave of absence for purposes
of his or her seniority was not always maintained. Ad-
justment was made for periods of inactivity taken by some
individuals when they returned to work, but not for
others. Because the records from prior years may not be
sufficiently accurate to resolve all disputes which may
arise, it will be necessary to establish a retrospective rule
which is different from that pertaining to the future.
App. 54
However, this Board does not have jurisdiction to go back
further than the beginning of the collective bargaining
agreement between the Company and the IAM at the time
the grievances being heard were filed. Thus the IAM claim
regarding adjustments made for maternity leave taken
under collective bargaining agreements prior to 1983 must
be dismissed. Furthermore, such claims were previously
settled in 1989 and gave flight attendants the right to file
claims at that time.
Furthermore, this Board cannot examine all of the
individual employment reeords of the flight attendants
employed by Continental, and there is no way to remedy
errors which have caused individuals to lose jumpseat and
pass-riding seniority. Accordingly, for retroactive adjust-
ments that occurred within the last two years,’ flight
attendants may protest such adjustments in their senior-
ity dates which occurred more than a year after the event
which triggered the adjustment. They may do so within 30
days of the date on which this award is rendered, and the
parties shall have the joint obligation of informing all
flight attendants of this decision. Flight attendants who
are on leaves of absence shall have 30 days after their
return to duty to file such protests. In the event a flight
attendant files such a protest, the company may look at
any event which concluded during the two-year period and
make adjustments to include any non-duty time which
ended during that two-year period. For the future, the
company shail have a period of one year from the date on
which a flight attendant returns to duty to adjust his or
her seniority date. Likewise, flight attendants will be
\
" The two-year period shall begin on the date of the award.
App. 55
limited in challenging adjustments made to seniority, more
than one year prior to the date of the adjustment. Within
that time parameter, individual flight attendants shall
have 30 days from the date on which they first were
notified by the Company (e.g. System Seniority posting,
pay register, annual retirement statement, and annual
vacation notification letter) to file a protest.
In resolving the individual grievances which have
been filed, the Board finds that the grievance of Sue Shaw
is denied because of a failure to prove her claim as she did
not testify; as for Ann Bice, Arlene Sonnichsen, Kevin
Bale’, and Rebecca Cruz the rules as previously stated
shall be applied to their individual situations. The griev-
ances of Marilyn Mitchell are decided as follows: the
grievances claiming that the Company incorrectly ad-
justed her vacation, pay and JA seniority dates are denied
because the adjustments were made contemporaneously
and in order to retain seniority one must be on the list of
Company employees and to accrue seniority one must be
in the active service of the Company and be receiving pay
for such service. Her grievance contesting the Company’s
adjustment of her Company service date is denied, as
among other things, Company service dates determine
retirement and benefits and, as it relates to service credit,
are not governed by the terms of the collective bargaining
agreement but rather by the rules of the Continental
Airlines Retirement Program.
Grievances claiming that individuals holding Director
level and above positions and individuals placed on the
* Mr. Bale also claimed disparate treatment; however this claim
need not be decided in view of the award in this case.
App. 56
System Seniority List with dates that do not coincide with
the date that they were placed on flight attendant payroll
and the individual working as inflight liaison to dining
services should be removed from the System Seniority List
are denied as untimely and because of Letter of Agreement
22.
Award
The grievance is sustained in accordance with the
Discussion above. In the event there is a protest which
cannot be resolved it may be submitted to the System
Board of Adjustment in accordance with the grievance
procedure under Section 19. This Board will retain juris-
diction of all disputes arising based upon this decision
including questions regarding remedy.
/s/ Robert O. Harris
Robert O. Harris
Chairman
/s/ Cindy Seffair /s/ Jeffrey S. Oliver
Cindy Seffair Jeff Oliver
Carrier Member Union Member
(Concur) (Dissent) (Concur) (Dissent)
In Part In Part In Part In Part
App. 57
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In the Matter of Arbitration
between
INTERNATIONAL ASSOCIATION
OF MACHINISTS DISTRICT 142
and
CONTINENTAL AIRLINES, INC.
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GRIEVANCE Nos. 04554 (Sonnichsen), 05473, 05446,
and 06171 (Mitchell); 06050 (Bice); 06056 (Cruz); 06082,
06540, and 07236 (Bale); 06107 (Shaw); and General
Grievance G-17 (IAM)
DECISION OF THE CHAIRMAN
AND AWARD OF THE BOARD
Appearances
For the Association
Robert S. Clayman
Guerrieri, Edmond & Clayman
For the Carrier
Jeffrey D. Wall, Esquire
System Board Members
From the Association
Jeff Oliver
From the Carrier
Cindy Seffair
Neutral Chairman
Robert O. Harris
The following grievances were submitted to the
System Board of Adjustment for resolution pursuant to the
Decision and Award dated May 17, 2002. The Board
App. 58
retained jurisdiction under that Award to resolve all
disputes arising from it, including questions of remedy and
other seniority protests flied in conformance with the
Decision and Award. The parties have submitted three
cases addressed in the Decision and Award for the Boards
consideration as to remedy. The Board finds as follows:
Grievance No. 04554 (Sonnichsen)
The Grievant’s vacation seniority date is October 4,
1973. The Company shall pay her one weeks vacation pay
at her rate of pay in effect in 1999.
Grievance No. 06050 (Bice)
The Grievant’s vacation seniority date is March 24,
1975. The Company shall pay her one weeks vacation pay
at her rate of pay in effect in 2001.
Grievance No. 06056 (Cruz)
The Grievant’s vacation seniority date is July 5, 1975.
The Company shall pay her one week’s vacation pay at her
rate of pay in effect in 2001.
Grievance No. 07607 (Bale)
The Grievant claims his pass, pay and vacation
seniority dates were adjusted retroactively in October
2000. The Company’s records show that the adjustments
were actually made in September 1998, outside the time-
frame for claims that can be submitted under the Decision
and Award. The grievance is denied.
App. 59
Eleven additional cases were submitted for the
Board’s consideration regarding adjustments in various
seniority dates. Having reviewed the evidence and argu-
ments of the parties, the Board rules as follows:
Grievance No. 07431 (Morales; Ryan)
The Grievants’ pass boarding seniority dates were
adjusted retroactively for leaves of absence taken more
than one year before. In accordance with the principle set
forth in the Decision and Award, such retroactive adjust-
ment shall be rescinded, and their pass boarding seniority
dates each shall be July 1, 1984. There shall be no change
to their current Company service seniority dates.’
Gnievance No. 07432 (Piazza)
The Grievant claims her pay seniority was adjusted in
September 2000 for leaves taken in 1997 and 1998. The
Company’s payroll records demonstrate that her pay,
vacation and Company service seniorities were adjusted in
a timely fashion upon her return from leave in both 1997
and 1998. She was not adjusted retroactively in 2000. The
grievance is denied.
* As noted in the May 17 Decision and Award, protests concerning
adjustments in Company service dates are outside this Board’s
purview. Company service dates determine retirement and benefits
and, as it relates to service credit, are not governed by the terms of the
collective bargaining agreement but rather by the rules of the Conti-
nental Airlines Retirement Program.
App. 60
Grievance No. 07433 (Heffernan)
The Grievant claims that retroactive adjustments
were made to her Company service and pass boarding
seniority date. The Company’s records show that a clerical
“keypunch” error changed her original hire date of No-
vember 1, 1987 to February 24, 1987. The date of hire and
pass seniority dates were then retroactively adjusted in
2001 to account for leaves of absence taken more than one
year before. The retroactive adjustment in pass seniority
shall be rescinded, but the correction and adjustment of
her Company service date shall stand. Her pass seniority
date shall be November 1, 1987 and her Company service
seniority date shall be April 29, 1988.
Grievance No. 07434 (Mysel)
The Grievant’s pay and pass boarding seniority dates
were adjusted retroactively in July 2000 for leaves taken
in 1992. Her pay seniority shall be returned to April 6,
1993, and her pass seniority shall be returned to Septem-
ber 5, 1992.
Grievance No. 07435 (Wintenburg)
The Grievant’s vacation, pay and pass
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