# Petition for Writ of Certiorari — Mitchell v. Continental Airlines, Inc. (No. 06-1626) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0578%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text 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 I a sl shabu nmeeniboniis li 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 pu [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0578%3A1. Public record. Not legal advice.