Petition for Writ of Certiorari — Air Line Pilots Ass'n, International v. Northwest Airlines, Inc.
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00-260 AUG 1 6 2000
acai QEEICE OF IHE CLERK
IN THE
Supreme Court of the United States
AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,
Petitioner,
af
NORTHWEST AIRLINES, INC..
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit
PETITION FOR A WRIT OF CERTIORARI
JERRY D. ANKER
(Counsel of Record)
ELIZABETH GINSBURG
JAMES K. LOBSENZ
AIR LINE PILOTS ASSOCIATION,
INTERNATIONAL
Legal Department
1625 Massachusetts Avenue, N.W.
Washington, D. C. 20036
(202) 797-4087
WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001
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QUESTIONS PRESENTED
1. Whether the “tension” between the decisions in
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974),
and Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.
20 (1991), which the Court acknowledged in Wright v.
Universal Maritime Service Corp., 525 U.S. 70, 75-77
(1998), should be resolved by holding that unions have
authority under the Railway Labor Act to negotiate collective
bargaining agreements that provide for arbitration of statutory
employment-discrimination claims.
2. Whether, even if unions lack authority to negotiate
collective agreements providing for arbitration of statutory
claims, the Railway Labor Act obligates an employer, before
requesting individual Gilmer-type arbitration agreements
from union-represented employees, to bargain with the union
_ concerning such matters as whether the individual arbitration
agreements will be voluntary or required by the employer as a
condition of hire or retention, and what the specific terms and
conditions of the agreements will be.
(i)
TABLE OF CONTENTS
Page
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PRUNE GPE FUE Gao innc cs ctcsssoccacinccnsvncessesacse 2
REASONS FOR GRANTING THE WRIT.................... 6
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NT ciptahiaaigtinanionincacenbsnnsananesinincaasblinakecercnintianeede la
Opinion, U.S. Court of Appeals for the District of
Columbia Circuit, dated December 28, 1999............. la
Memorandum Opinion, U.S. District Court for the
District of Columbia, dated September 23, 1998....... 20a
Order, U.S. District Court for the District of
Columbia, dated September 23, 1998 ..............cccceeeees 39a
Order, U.S. District Court for the District of
Columbia, dated October 2, 1998 ...........cccecssesseeseeees 4la
Order, U.S. Court of Appeals for the District of
Columbia Circuit, dated March 9, 2000...............:0000 42a
Judgment, U.S. Court of Appeals for the District of
Columbia Circuit, dated May 19, 2000................0008 44a
Pertinent Provisions of the Railway Labor Acct.............. 46a
(iii)
iV
TABLE OF AUTHORITIES
CASES Page
Alexander v. Gardner-Denver Co., 415 U.S. 36 |
CEFF) wcsccassnstererenoonaniittccnnbennatisacsamecesieniia 3, 4, 5, 7, 9, 12
Austin v. Owens-Brockway Glass Container, Inc..,
FF BED CRE, TID siniscinescesictnesnienrcnssion 6
Barrentine v. Arkansas-Best Freight System, Inc.,
PUL FARE CL hiisciniinstiniesdnanniaittininianibineiin 7
Carson v. Giant Food, Inc., 175 F.3d 325 (4th
CF, aD cenicicnpnsciniviacneasebicigianadacdibsinbiesnbanindadegiliaiainia 6
Gilmer v. Interstate Johnson/Lane Corp., 500
CF, Be CTD Distecinsicticiacegnsinsianlanhatiaaed 4,7, 12, 13
McDonald v. West Branch, 466 U.S. 284
(FSI wissen inivsisuhbecevenneiediieindinnstiiethanenaeiacbiiestevendiaiagieiiaaanha 7
Medo Photo Supply Corp. v. NLRB, 321 U.S. 678
CNG) cceincsvesensetensnenschaisintciveittocibanetesitgnicsinnnpiabaaliidaniis 11
Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, Inc., 473 U.S. 614 (1985) ............ eee 7
NLRB vy. Allis-Chalmers Mfg. Co., 388 U.S. 175
(BGT) cccisnnsksajaiensiiitionsieininaciisieiiediigpidiiniinsiiianiiiiaaids 11
Order of R.R. Telegraphers v. Railway Express
Agamey, S21 US. BOE (USO) vi vccetssentsensseseonsinneee 10
Rodriguez de Quijas v. Shearson/American
Express, Inc., 490 U.S. 477 (1989) 0.0... eeeeeee 7
Shearson/American Express, Inc. v. McMahon,
FEBS US. Sane CLIT Ricerciinsniiiadianainiinveaiennitiinnie 7
Steele v. Louiville & Nashville R.R., 323 U.S. 192
CRI seisisccsishieisectiauieesliatecediiagiginadantinorniegiciedianinin 10-11
Wilko v. Swan, 346 U.S. 427 (1953) .........ceeeeeeeeeees )
Wright v. Universal Maritime Serv. Corp., 525
US. FP CE sciiewshiincentinebcinteniinciniibinconaioio 4,7-8
Vv
TABLE OF AUTHORITIES—Continued
STATUTES: Page
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National Labor Relations Act,
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Railway Labor Act,
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IN THE :
Supreme Court of the United States
No.
AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,
Petitioner,
V.
NORTHWEST AIRLINES, INC.,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit
PETITION FOR A WRIT OF CERTIORARI
Petitioner Air Line Pilots Association, International
(ALPA) respectfully petitions the Court to issue a writ of
certiorari to review the judgment of the United States Court
of Appeals for the District of Columbia Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals is officially reported at
199 F.3d 477, and is reprinted in the Appendix (App.) at page
la. The opinion of the district court is not officially reported,
and is reprinted at App. 20a.
JURISDICTION
The appeal in this case was initially heard by a panel of the
court of appeals, which issued its decision on December 28,
1999. ALPA then filed a timely petition for rehearing en
2
banc, and on March 9, 2000, the full court of appeals granted
that petition, vacated the panel’s decision, and ordered
rehearing en banc. (App. 42a). On May 19, 2000, after oral
argument, the full court entered a judgment reinstating
the earlier panel opinion “as the judgment and opinion of
the court sitting en banc.” (App. 44a). This Court has
jurisdiction to review that judgment pursuant to 28 U.S.C.
§ 1254(1).
STATUTE INVOLVED
The pertinent provisions of the Railway Labor Act are
reprinted in the Appendix at pages 46a-49a.
STATEMENT OF THE CASE
Petitioner ALPA is a labor organization that represents the
pilots employed by most U.S. commercial air carriers,
including respondent Northwest Airlines, Inc. (Northwest).
ALPA brought this action in the United States District Court
for the District of Columbia to obtain an injunction against
Northwest’s practice of requiring its pilots, at the time of hire,
to sign individual employment contracts, called “Conditions
of Employment” (COE), which remain in effect during the
pilots’ entire tenure of employment. ALPA claimed that the
COEs dealt with matters relating to the pilots’ “rates of pay,
rules, and working conditions” concerning which Northwest _
has a statutory duty to bargain with ALPA as the pilots’
exclusive bargaining representative. See Railway Labor Act
§2 First & Second, 45 U.S.C. § 152 First & Second.
Therefore, ALPA contended, it was unlawful for Northwest
to enter into or maintain these individual agreements with
pilots represented by ALPA without ALPA’s prior consent.
The jurisdiction of the district court was invoked under 28
U.S.C. §§ 1331 and 1337(a).
As one of its defenses to the action, Northwest contended
that ALPA had tacitly agreed to the versions of the COE that
3
had been executed prior to 1995 by not objecting to them
earlier. The district court determined that this contention had.
sufficient basis to raise a “minor dispute” (i.e., a contractual
issue) that, under the Railway Labor Act, could only be
resolved through arbitration before a system board of
adjustment. (App. 3la-35a). ALPA did not challenge this
holding on appeal.
The remainder of the litigation focused on the version of
the COE that Northwest had begun to use in 1995. That
agreement included, for the first time, an arbitration
provision’ which required the signatory pilot to submit to
binding arbitration “any claims or disputes I may have
with respect to my employment with the company.” 7
This provision specifically covered statutory “discrimi-
nation claims” under “any state or federal law prohibiting
discrimination.”
Northwest defended its right to enter into these individual
arbitration agreements without prior bargaining with ALPA
on the basis of this Court’s decision in Alexander v. Gardner-
Denver Co., 415 U.S. 36 (1974). It argued that Gardner-
Denver precludes a union from agreeing to binding arbitration
of individual employees’ statutory discrimination claims, and
therefore removes this subject from the scope of collective
bargaining under the Railway Labor Act.
'In addition to the arbitration clause there were four other new or
revised provisions in the 1995 COE that ALPA challenged below, but
while the litigation was pending Northwest eliminated three of these
provisions and revised the fourth to conform with the parties’ collective
bargaining agreement. (App. 5a-6a, 17a). The court of appeals concluded
that these changes made “ALPA’s claim for injunctive relief unripe” with
respect to these four provisions. (App. 18a). ALPA does not seek review
of this portion of the decision below.
? While the lawsuit was pending Northwest revised the arbitration
clause to make clear that it did not apply to any disputes arising under the
collective bargaining agreement between the Company and ALPA.
4
On cross-motions for summary judgment, the district court
rejected Northwest’s contention. It held that, “regardless of
whether [ALPA] can itself enter into arbitration agreements
on behalf of its members, Northwest is nevertheless required,
under § 2 Seventh of RLA, 45 U.S.C. § 152, to obtain the
union’s consent before it can execute individual contracts
affecting the ‘rates of pay, rules, or working conditions’ of
represented employees.” (App. 30a). Accordingly, the court
enjoined Northwest “from implementing the COEs containing
the arbitration provision and from requiring from newly-hired
pilots COEs containing the arbitration provision pending
completion of the bargaining and mediation process required
by RLA §§ 5 and 6, 45 U.S.C. §§ 155 and 156.” (App. 37a).
The court of appeals reversed, accepting Northwest’s
argument that Alexander v. Gardner-Denver prohibits a union
from agreeing to binding arbitration of statutory claims, and
therefore removes this subject from the scope of collective
bargaining. In a panel opinion that was later adopted by the
full court sitting en banc, the court began its analysis by
rejecting the idea that Gardner-Denver had been superseded
by the Court’s later decision in Gilmer v. Interstate
Johnson/Lane Corp., 500 U.S. 20 (1991). It acknowledged
that Gilmer, by allowing enforcement of an_ individual
agreement to arbitrate a statutory discrimination claim, had
retreated from the principle announced in Gardner-Denver
that “there can be no prospective waiver of an employee’s
rights under Title VII.” The court also acknowledged that
Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 80
(1998) had recognized the existence of an unresolved
question as to “‘whether or not Gardner-Denver’s seemingly
absolute prohibition of union waiver of employee’s federal
forum rights survives Gilmer.’” (App. 12a).
But the court ultimately concluded that Gardner-Denver
still stood as a bar to any union-negotiated agreement
providing for arbitration of statutory discrimination claims:
5
Whatever the Supreme Court said—or, more
precisely, refrained from saying—in Wright, we do not
understand the Court in Gilmer to have overruled
Gardner-Denver. Rather, the ‘Court expressly
distinguished that case, which strongly implies that it
remains the law within its field of application. We
therefore leave to the Court itself the prerogative of
overruling its own precedent (if it will); we apply the
law as it stands.
We see a clear rule of law emerging from Gardner-
Denver and Gilmer: Unless the Congress has precluded
his doing so, an individual may prospectively waive his
own statutory right to a judicial forum, but his union
may not prospectively waive that right for him. All of
the circuits to have considered the meaning of Gardner-
Denver after Gilmer, other than the Fourth, are in accord
with this view.
(App. 12a-13a) (citations omitted).
The court of appeals next considered the district court’s
view that, even if Gardner-Denver bars ALPA from entering
into any agreement that would require the pilots it represents
to arbitrate all statutory discrimination claims, Northwest
must still obtain ALPA’s permission to negotiate such
agreements directly with the individual pilots, because such
agreements concern rates of pay, rules and working
conditions. The court of appeals rejected this holding,
reasoning that it would require an employer to bargain about
a proposal “that the union is not authorized to accept and the
employer could not enforce.” (App. 14a). The court stated
that “a proposal to trade that which is not one’s to give cannot
be a mandatory subject of bargaining.” (/d.) It did not
explain why it thought this principle excused the employer
from bargaining about whether individual pilots would be
asked or required to sign arbitration agreements.
6
Finally, the court held that unions have no bargaining role
even with respect to the procedures to be incorporated into
such individual arbitration agreements. It stated:
[A]s we read Gardner-Denver and Gilmer, ALPA can
have no role in negotiating obligatory procedural rules
for arbitration of individual statutory claims. Read
together, those cases establish that only the individual
can determine in what forum he will vindicate his
statutory rights, and this choice should not be burdened
by the majoritarian concerns that motivate a union. If a
union has a mandatory role in negotiating the terms that |
will apply to arbitration, then it could also contrive to
discourage the exercise of the employee’s right to
choose a forum.
(App. 16a).
REASONS FOR GRANTING THE WRIT
I.
This case provides the Court an opportunity to resolve
definitively an important question of labor law concerning
which the Court has acknowledged its prior decisions are in
some “tension.” That question is whether a union has
authority, as collective bargaining representative, to enter into
an agreement that requires the represented employees to
submit to binding arbitration any claims arising under federal
anti-discrimination statutes. The courts of appeals are also
divided on this issue: most, like the court below, have
answered the question in the negative (see cases cited in the
opinion below at App. 13a), but the Fourth Circuit has
consistently answered it in the affirmative. See Austin v.
Owens-Brockway Glass Container, Inc., 78 F.3d 875 (4th Cir.
1996); Carson v. Giant Food, Inc., 175 F.3d 325 (4th Cir.
1999),
7
The question was most recently considered, but not
decided, by this Court in Wright v. Universal Maritime
Service Corp., 525 U.S. 70, 77, 82 (1998). The Court granted
certiorari in that case to review a Fourth Circuit decision
which had held that a union-negotiated arbitration clause in a
collective bargaining agreement precluded a_ covered
employee from suing in federa! court on a claim arising under
the Americans with Disabilities Act. In discussing the merits
of that case, this Court observed that the Fourth Circuit’s
decision “brings into question two lines of our case law” —
one represented by Gardner-Denver and its progeny’ and the
other, represented by Gilmer and earlier cases on which it
relied*—and that “[t}here is obviously some tension between
these two lines of cases.” /d. at 75-76. The Court went on to
explain:
Whereas Gardner-Denver stated that “an employee’s
rights under Title VII are not susceptible of prospective
waiver,” 415 U.S., at 51-52, Gilmer held that the right to
a federal judicial forum for an ADEA claim could be
waived. Petitioner and the United States as amicus
would have us reconcile the lines of authority by
maintaining that federal forum rights cannot be waived
in union-negotiated CBAs even if they can be waived in
individually executed contracts—a distinction that
assuredly finds support in the text of Gilmer, see 500
U.S., at 26, 35. Respondents and their amici, on the
other hand, contend that the real difference between
Gardner-Denver and Gilmer is the radical change, over
two decades, in the Court’s receptivity to arbitration . . .;
* E.g., McDonald v. West Branch, 466 U.S. 284 (1984); Barrentine v.
Arkansas-Best Freight System, Inc., 450 U.S. 728 (1981).
* Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S.
477 (1989); Shearson/American Express, Inc. v. McMahon, 482 U.S. 220
(1987); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473
U.S. 614 (1985).
8
Gilmer, they argue, has_ sufficiently undermined
Gardner-Denver that a union can waive employees’
rights to a judicial forum.”
525 U.S. at 76-77.
In the end, the Court did not resolve this dispute. Instead,
it held that even if a union has authority to waive an
individual’s right to sue under these federal statutes, such a
waiver must be “clear and unmistakable.” The general
arbitration clause that was at issue in Wright did not meet
that test. The Court therefore concluded:
We hold that the collective-bargaining agreement in
this case does not contain a clear and unmistakable
waiver of the covered employees’ rights to a judicial
forum for federal claims of employment discrimination.
We do not reach the question whether such a waiver
would be enforceable.
525 U.S. at 82.
In the present case, the question whether a union has
authority to enter into a binding arbitration agreement
applicable tc individual employee claims arising under
federal anti-discrimination statutes is squarely presented—not
in reference to any particular arbitration clause but
generically, in terms of defining the scope of mandatory
collective bargaining under the Railway Labor Act. In other |
words, the question here is whether a union can negotiate any
kind of mandatory arbitration clause applicable to such
statutory claims.”
: Although this case happens to arise under the Railway Labor Act, the
issue presented would be exactly the same under the National Labor
Relations Act (NLRA), which similarly defines the scope of collective
bargaining under that statute as covering “wages, hours, and other terms
and conditions of employment.” 29 U.S.C. § 158(d). Thus, the decision
below is effectively the controlling precedent for NLRA cases as well,
9
The court of appeals thought this question had been
answered in Gardner-Denver, and that its duty as a lower
court was to follow that ruling: “We .. . leave to the
[Supreme] Court itself the prerogative of overruling its own
precedent (if it will); we apply the law as it stands.” (App.
12a-13a). But Gardner-Denver did not so much decide this
question as assume the answer, based on the then-existing
precedent of Wilko v. Swan, 346 U.S. 427 (1953). In Wilko,
which involved a suit under the Securities Act of 1933, the
Court had held that when Congress creates a nonwaivable
Statutory right and provides a judicial forum for its
enforcement, an arbitration agreement cannot be raised as a
defense to an enforcement action under the statute. It was on
the basis of this precedent that the Court in Gardner-Denver
concluded that “an employee’s rights under Title VII are not
susceptible of prospective waiver.” 415 U.S. at 51-52. Of
course, the Court subsequently retreated from and eventually
overruled Wilko, in a series of cases that it later relied upon in
Gilmer. See cases cited at page 7, note 4, supra. But the
Court has yet to decide whether this change in its thinking
about arbitration of statutory claims generally should also
change the views expressed in Gardner-Denver concerning a
union’s authority to negotiate arbitration agreements
applicable to statutory discrimination claims.
Moreover, the Court’s pronouncements in Gardner-Denver
concerning a union’s authority are only dicta, since that
question was not presented in the case. Rather, the issue
there was whether an employee who had submitted a
contractual discrimination claim to arbitration under a
collective bargaining agreement and obtained an adverse
award was thereby precluded from bringing a statutory
discrimination claim in Court. The arbitration provision in
since all NLRA cases are subject to review in the District of Columbia
Circuit. See 29 U.S.C. § 160(f).
aE”
10
that case did not specifically cover statutory claims, nor had
any statutory claim been submitted to arbitration. Thus, the
extent of a union’s authority to negotiate concerning
arbitration of statutory claims was not directly presented.
Given the continuing conflict among the circuits on this
issue, and the tension in this Court’s own decisions, the
matter should be definitively decided in this case.
Il.
If this Court should determine that a union may not itself
enter into a collective agreement that requires arbitration of
Statutory discrimination claims, then the second question
presented by this case would arise. That question is whether
an employer must nevertheless bargain with the union before
entering into individual arbitration agreements with union-
represented employees. ALPA’s contention throughout this
case has been that an arbitration requirement applicable to
discrimination claims arising out of the employment
relationship—whether that arbitration requirement is
embodied in a collective agreement or an_ individual
agreement—is a “rule” or “working condition” within the
meaning of the Railway Labor Act, 45 U.S.C. § 152, and
therefore within the scope of collective bargaining mandated
by the Act. If this is so, then an employer cannot enter into
individual arbitration agreements without first bargaining
with the union.° Such bargaining would deal, for example,
° Indeed, if the matter is a mandatory subject of collective bargaining,
the employer would presumably be prohibited from entering into
individual arbitration agreements at all without the union’s consent. It is a
well-recognized principle under both the Railway Labor Act and the
National Labor Relations Act that an employer may not contract with
individual employees concerning matters that are within the scope of
mandatory collective bargaining except with the consent of the collective
bargaining representative. See Order of R.R. Telegraphers v. Ruilway
Express Agency, 321 U.S. 342 (1944); Steele v. Louisville & Nashville
1]
with such matters as whether the individua! arbitration
agreements will be voluntary or required by the employer as a
condition of hire or retention, and in either case what the
terms of the arbitration procedure will be—i.e., how the
arbitrator will be selected, who will pay the costs of the
arbitration, what discovery wili be permitted, what remedies
may be provided, and the like.
The court of appeals construed this Court’s decisions in
Gardner-Denver and Gilmer as precluding the union not only
from imposing arbitration of statutory claims through a
collective agreement, but also from playing any collective
bargaining role with respect to any aspect of individual
arbitration agreements. We believe this interpretation of
these decisions is not only mistaken but inconsistent with
fundamental policies of both federal labor law and the federal
anti-discrimination statutes. In any event, the issue presented
is of sufficient importance—and sufficiently in doubt—to
warrant review by this Court.
The court of appeals reasoned that if the union is precluded
from agreeing to a mandatory arbitration provision that would
be binding on the employees, then the entire subject of
arbitration of statutory claims cannot be a matter for
collective bargaining. As the court put it, “a proposal to trade
that which is not one’s to give cannot be a mandatory subject
of bargaining.” (App. 14a). We believe this reasoning
confuses the question of what specific terms a union may
agree to in collective bargaining with the question of what
general subjects the parties are required to bargain about.
Even if a union cannot agree to an arbitration provision that
would be binding on employees, there are other issues
relative to the general subject of arbitration of statutory
R.R., 323 U.S. 192, 200 (1944); Medo Photo Supply Corp. v. NLRB, 321
U.S. 678; 684 (1944); NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175,
180 (1967).
12
claims that the parties could still negotiate about and agree
upon. One such issue would be whether the employer will
request employees to sign individual arbitration agreements at
all, and if so, whether employees will have the option to
decline or whether the agreements will be a mandatory
condition of hire or retention. Another issue would be what
specific rules and procedures such individual arbitration
agreements must contain.
The court of appeals thought that bargaining about any
such matters would be inconsistent with Gardner-Denver and
Gilmer. It read those cases as giving each individual
employee an affirmative legal right to “determine in what
forum he will vindicate his statutory rights, and this choice
should not be burdened by the majoritarian concerns that
motivate a union.” (App. 16a). If unions were given any
bargaining authority in this area, the court said, they might
“contrive to discourage the exercise of the employee’s right
to choose a forum.” (/d.)
Contrary to the court of appeals, we find nothing in either
Gardner-Denver or Gilmer that suggests the existence of a
protected employee right to choose arbitration, rather than the
courts, as the forum for enforcing their statutory discrim-
ination claims. In Gardner-Denver the Court’s concern was
with protecting ithe employee’s statutory right to judicial
enforcement of his claim; there is no mention of a right to
choose arbitration. And while Gilmer held that an individual
employee’s arbitration agreement was enforceable under the
Federal Arbitration Act, that result was not based on any
notion of protecting the employee’s choice of forum. On the
contrary, the arbitration agreement in that case was enforced
despite the employee’s lack of free choice; he had been
forced to sign the arbitration agreement at issue in that case as
a condition of becoming a registered securities representative.
It is obvious from the fact that the Gilmer case was brought as
13 ;
a lawsuit in federal court that the plaintiff preferred judicial
enforcement of his claim, not arbitration.
Furthermore, while it is theoretically conceivable that an
individual employee might prefer arbitration over judicial
enforcement of his anti-discrimination rights, in reality it will
almost always be the employer who wants to replace the
judicial forum with arbitration. And unless there is a union
that has authority to represent the employees with respect to
this issue, they will have no real choice in the matter. The
employer will simply require an arbitration agreement as a
condition of employment—as it did here and in Gilmer.
Therefore, if the goal is to give employees maximum free
choice, the way to achieve that goal is not to deny the union
bargaining authority, as the court of appeals thought, but
rather to hold that individual arbitration agreements are
within the scope of collective bargaining under the Railway
Labor Act. Given the authority to bargain about the matter,
the union will be able to bring to bear the collective
bargaining power of the employees either to dissuade the
employer from demanding individual arbitration agreements
at all, or to negotiate with the employer a form of arbitration
agreement that is acceptable to the employees, rather than one
imposed unilaterally by the employer.
That result, we believe, would be far more consistent with
the fundamental goals of both the Railway Labor Act and the
federal anti-discrimination statutes than the one reached
below. Not only would unions be allowed to play their
statutorily assigned role of representing employees with
respect to “rates of pay, rules, and working conditions,” but in
doing so they would provide maximum protection for the
employees’ right to a judicial forum for the enforcement of
any claims arising under the anti-discrimination statutes.
Collective bargaining would also tend to ensure that, if
arbitration of statutory claims is agreed to, the arbitration
procedure would be one that is protective of employee rights
14
and interests, which may not be the case if the procedure is
devised solely by the employer.
These issues are worthy of the Court’s consideration.
They are important to the administration of both the federal
labor-relations laws and the federal anti-discrimination
statutes. They will arise frequently, as increasing numbers
of employers require their employees, as a condition of
employment, to sign mandatory arbitration agreements
applicable to statutory anti-discrimination claims. And there
is at least strong reason to believe that they were decided
erroneously below.
CONCLUSION
‘For the reasons stated, this petition for a writ of certiorari
should be granted.
Respectfully submitted,
JERRY D. ANKER
(Counsel of Record)
ELIZABETH GINSBURG
JAMES K. LOBSENZ
AIR LINE PILOTS ASSOCIATION,
INTERNATIONAL
Legal Department
1625 Massachusetts Avenue, N.W.
Washington, D. C. 20036
(202) 797-4087
APPENDICES
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 98-7196
AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,
Appellee/Cross-Appellant
Vv.
NORTHWEST AIRLINES, INC.,
Appellant/Cross-Appellee
Consolidated with 98-7202
Appeals from the United States District Court
for the District of Columbia
(No. 97cv01917)
Argued September 9, 1999
Decided December 28, 1999
John J. Gallagher argued the cause for appellant/cross-
appellee. With him on the briefs were Cathy Wassberg, Neal
D. Mollen, and Intra L. Germanis.
Jerry Anker argued the cause for appellee/cross-appellant.
With him on the briefs were Elizabeth Ginsburg and James
K. Lobsenz.
2a
Before: GINSBURG, SENTELLE, and GARLAND, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge: For more than 30 years North-
west Airlines has required newly hired pilot trainees to sign
individual employment contracts called “Conditions of
Employment.” In 1995 Northwest added several new
provisions to the Conditions, including a clause under which
each trainee agreed to binding arbitration of any claim he
might have against Northwest for discrimination in
employment.
The Air Line Pilots Association (ALPA), which is the
union that represents Northwest pilots once they have
completed their training, filed suit claiming that the carrier
violated the Railway Labor Act, 45 U.S.C. § 151 et seq., by
requiring individual trainees to agree to the Conditions
without first having bargained with ALPA over them. The
district court granted partial summary judgment for each
party; the court enjoined Northwest, pending completion of
the bargaining and mediation process, from applying the
Arbitration Clause to pilots who have completed their training
and are represented by ALPA, but refused to enjoin the use of
any other of the Conditions.
Northwest appeals, claiming that under Alexander v.
Gardner-Denver Co., 415 U.S. 36 (1974), the arbitration of
individual statutory claims is not a mandatory subject of
collective bargaining and that Northwest is therefore free to
bargain individually with its employees over the Arbitration
Clause. We agree and accordingly reverse the judgment of the
district court on this issue.
ALPA cross-appeals, claiming the district court should
have enjoined the use of other provisions that Northwest
added to the Conditions in 1995. Because, in light of
subsequent events, the cross-appeal does not present a live
3a
controversy, we dismiss ALPA’s claim without prejudice to
its raising the same claim in the future.
I. Background
The relationship between Northwest and ALPA is
governed by the Railway Labor Act (RLA), 45 U.S.C. § 151
et seq. Under RLA § 2 First, 45 U.S.C. § 152 First, the carrier
is required to “exert every reasonable effort to make and
maintain agreements concerning rates of pay, rules, and
working conditions.” This statutory obligation to bargain with
the union in good faith is backed up by RLA § 2 Seventh, 45
U.S.C. § 152 Seventh, which provides that “[n]Jo carrier . . .
shall change the rates of pay, rules, or working conditions of
its employees, as a class as embodied in agreements except in
the manner prescribed in such agreements or in [§ 6 of the
RLA].” In other words, if the carrier is unable to reach
agreement with the union on changing a rate of pay, rule, or
working condition, then it must maintain the status quo until
it has satisfied the multi-step process of negotiation,
mediation, arbitration, and cooling-off required under RLA
§ 6, 45 U.S.C. § 156. See Detroit & Toledo Shore Line R.R.
Co. v. United Transportation Union, 396 U.S. 142, 149
(1969) (describing negotiation process under § 6 as “almost
interminable”). If at the end of that process the parties have
not reached an agreement, then the employer may unilaterally
implement its proposal and the union may resort to economic
self-help to resist the change.
Matters that are “directly related to ‘rates of pay, rules, and
working conditions’,” and may therefore trigger the
obligations of RLA § 2 First and Seventh, are denominated
“mandatory subject[s} of collective bargaining,” a phrase
courts have borrowed from case law arising under the
National Labor Relations Act. Japan Air Lines Co. v.
International Ass'n of Machinists, 538 F.2d 46, 52 (2d Cir.
1976). If a carrier and a union have a dispute over a proposed
4a
change to a mandatory subject of bargaining, then the union
can get an injunction prohibiting the carrier from unilaterally
implementing the change before completing the lengthy
negotiation process set out in § 6. On the other hand, if the
dispute is over a non-mandatory subject, then the carrier may
unilaterally implement the change unless limited by an
existing collective bargaining agreement (CBA).
A. Northwest’s Practice, 1966-97
ALPA has represented the pilots of Northwest Airlines in
collective bargaining for nearly 60 years. When a pilot first
begins his training with Northwest, he is not represented by
ALPA or by any other union. When the pilot completes his
training and enters into “revenue service” as a probationary
employee, however, he immediately becomes a member of
the bargaining unit represented by ALPA.
As early as 1966 Northwest unilaterally began to require
that each trainee pilot agree to the Conditions as part of his
contract of employment. The earliest known Conditions in-
cluded provisions covering such matters as the trainee’s pay,
permission to use his likeness in promotions, and the assign-
ment of rights to anything he might invent. Although trainees
are not represented by ALPA when they agree to the
Conditions, some of the Conditions either expressly or
implicitly continue to apply for as long as the signatory
remains employed as a pilot with Northwest, that is, even
after the pilot becomes a member of the bargaining unit
represented by ALPA.
Over the course of three decades Northwest made
numerous changes to the Conditions without consulting
ALPA. In 1995 the airline added an Arbitration Clause
requiring employees to submit to binding arbitration all
claims against it arising from the employment relationship.
Of particular relevance to this appeal, the Arbitration Clause
Sa
specifically requires binding arbitration of statutory
employment discrimination claims brought under “the
Minnesota Human Rights Acts, Title VII of the Civil Rights
Act, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, or any other state or federal
law prohibiting employment discrimination” (citations
omitted). Also in 1995, Northwest unilaterally introduced
other new Conditions: (1) setting the pilot’s monthly salary
during the probationary period, when he has completed his
training and is represented by ALPA; (2) requiring the pilot to
submit to a medical examination if Northwest has reason to
believe he is no longer able to perform his essential job
functions; (3) acknowledging that Northwest may change
various working conditions at its option; and (4)
acknowledging that failure to comply with company rules is a
ground for termination.
B. ALPA’s Objection, 1997-Present
In 1997 Northwest notified ALPA that it was terminating a
probationary pilot and attached to the notice a copy of the
Conditions he had signed. ALPA, which claims that this was
the first it had learned of the Conditions, demanded that
Northwest cease requiring trainee pilots to agree to them and
that it inform each pilot who had signed Conditions that they
were null and void. When Northwest refused to do so, ALPA
filed suit in district court seeking injunctive and declaratory
relief on the ground that Northwest had violated the RLA by
unilaterally implementing the Conditions, which ALPA
alleged are individual contracts concerning mandatory
subjects of bargaining, without first negotiating with the
Union as required by the RLA.
While the suit was pending before the district court, North-
west, in an attempt to respond to some of ALPA’s concerns
regarding the 1995 Conditions, deleted three and revised one
of the provisions to which the Union objected. In presenting
6a
the new version (the 1997 Conditions) to ALPA, Robert
Brodin, Northwest’s vice president for labor relations, wrote:
Northwest has never interpreted or applied the
Conditions of Employment to operate in derogation of
the collective bargaining agreement between Northwest
and ALPA. Northwest and ALPA both agree that in the
event of overlap or inconsistency, the collective
bargaining agreement controls.
As to the Arbitration Clause in particular, however, Brodin
wrote that “Northwest continues to believe that it has the right
to insist on arbitration of non-contract claims as a condition
of employment for new hires.” The only significant change
Northwest made to the Arbitration Clause was to clarify that
it does not apply to claims arising out of the CBA between
Northwest and ALPA.
Both ALPA and Northwest moved for summary judgment
on the validity of the Conditions. The district court first
considered whether Northwest’s use of Conditions originating
before 1995 violated the RLA. The court held that ALPA, by
its failure to object to the Conditions for some 30 years, had
arguably consented to them, which if true would make use of
the Conditions an implied term of the CBA between North-
west and ALPA. Because that dispute related solely to the
meaning of the CBA, the court held it could be resolved only
by binding arbitration pursuant to RLA §§ 2 Sixth and 3 First,
45 U.S.C. §§ 152 Sixth and 153 First.
The court concluded that ALPA had objected in a timely
fashion, however, to the Arbitration Clause introduced in
1995, and therefore had not acquiesced in Northwest’s use of
that term. The district court then held that the Arbitration
Clause: deals with a mandatory subject of bargaining. Be-
cause the Arbitration Clause would have worked a change
with respect to a mandatory subject and ALPA had neither
agreed to nor acquiesced in that change, the court enjoined
Ta
Northwest from applying the Arbitration Clause to any pilot
represented by ALPA.
The district court did not address the question whether
other clauses ALPA claimed were newly included in the 1995
Conditions also violated the RLA. ALPA therefore moved to
amend the court’s order so as to enjoin Northwest from
implementing those clauses but the district court denied the
motion because of ALPA’s failure to comply with local court
rules.
II. Analysis
ALPA does not challenge the district court’s determination
that Northwest’s use of Conditions originating before 1995
must be resolved through binding arbitration. Therefore, both
Northwest’s appeal and ALPA’s cross-appeal concern only
the Union’s request for an injunction against Northwest’s use
of particular provisions that ALPA maintains first appeared in
the 1995 Conditions.
A. Northwest’s Appeal: The Arbitration Clause
Is the arbitration of statutory discrimination claims a
mandatory subject of bargaining? Northwest says not and
claims the district court erred in enjoining its use of the
Arbitration Clause, reasoning as follows. Under Alexander v.
Gardner-Denver Co., 415 U.S. 36 (1974), a union cannot
waive the right of the employees it represents to bring a
statutory discrimination claim in a judicial forum. Because
ALPA cannot agree to such a provision, it cannot be a
mandatory subject of bargaining. Therefore, Northwest is free
to deal directly with its employees over the arbitration of such
claims.
For its part, ALPA urges that the arbitration of statutory
claims is a mandatory subject, and that we should therefore
affirm the district court’s judgment, for three independent but
related reasons. First, Gilmer v. Interstate/Johnson Lane
8a
Corp., 500 U.S. 20 (1991) “effectively supersedes” Gardner-
Denver. If, as ALPA reads Gilmer, a union may in collective
bargaining waive the employees’ right to a judicial forum for
a statutory discrimination claim, then there is no reason to
doubt that the arbitration of statutory claims is a mandatory
subject of bargaining. Second, even if Gardner-Denver is still
good law, it has no effect upon whether arbitration of
statutory claims is a mandatory subject of bargaining. In other
words, as the district court held, Northwest must bargain with
ALPA over the Arbitration Clause regardless whether ALPA
could lawfully agree to it because it is directly related to
“rates of pay, rules, or working conditions.” Third, even if
waiver of the right to a judicial forum is not a mandatory
subject of bargaining because ALPA cannot agree to such a
waiver under Gardner-Denver, the procedural rules for
arbitration, as specified in the Arbitration Clause, are
mandatory subjects of bargaining.
In Gardner-Denver, the Supreme Court considered
whether an employee who had pursued arbitration of a racial
discrimination claim under a CBA was thereby precluded
from later asserting a Title VII claim based upon the same
facts. 415 U.S. at 46-55. The Supreme Court held that “there
can be no prospective waiver of an-employee’s rights under
Title VII.” Jd. at 51. Because Title VII provides each
individual with the right to be free of invidious
discrimination, “the rights conferred can form no part of the
collective-bargaining process since waiver of these rights
would defeat the paramount congressional purpose behind
Title VII.” /d. Therefore, although the union could and did
prospectively waive the employee’s right to sue upon (rather
than arbitrate) his claim of discrimination in violation of the
CBA, the employee’s resort to arbitration of this claim did
not preclude him from suing upon his statutory claim of
discrimination. See id. at 51-52.
9a
The Supreme Court also rejected the suggestion that a
court should dismiss a Title VII claim if the facts underlying
it had already been the subject of arbitration under a CBA
that prohibited, and provided a remedy for, the discrimina-
tion. According to the Court, arbitral processes were inferior
to judicial processes for protecting statutory rights, and the
Congress intended the federal courts to exercise final respon-
sibility over Title VII claims. See id. at 56-59. The Court was
particularly concerned that a union, which ordinarily controls
the arbitration of an employee’s claim, might, if allowed,
compromise the would-be Title VII plaintiff’s statutory
rights: “In arbitration, as in the collective-bargaining process,
the interests of the individual employee may be subordinated
to the collective interests of all employees in the bargaining
unit.” /d. at 58 n.19.
In the early 1980s the Supreme Court twice applied the
reasoning of Gardner-Denver beyond the context of Title
VII. In Barrentine v. Arkansas-Best Freight System, Inc.,
450 U.S. 728 (1981), employees had filed suit under the Fair
Labor Standards Act after having lost in arbitration on a
contractual claim arising from the same facts. The employer
argued that the employees’ union had waived their right to
bring the FLSA claim in court, noting that the CBA required
employees to arbitrate “any controversy” and that the
employees had in fact pursued this matter to arbitration. /d.
at 736. The Court rejected this argument:
[T]he FLSA rights petitioners seek to assert in this
action are independent of the collective bargaining
process. They devolve on petitioners as individual
workers, not as members of a collective organization.
They are not waivable. Because Congress intended to
give individual employees the right to bring their
minimum-wage claims under the FLSA in court, and
because these congressionally granted FLSA rights are
best protected in a judicial rather than in an arbitral
Ls
10a
forum, we hold that petitioners’ claim is not barred by
the prior submission of their grievances to the
contractual dispute-resolution procedures.
Id. at 745. In McDonald v. City of West Branch, 466 U.S. 284
(1984), the Supreme Court rejected the employer’s argument
that an employee’s § 1983 claim should be dismissed because
he had already pursued to arbitration under the CBA a claim
based upon the same facts. The Court premised its holding
upon two factors: the inadequacy of arbitration for the
enforcement of individual statutory rights, and the intention
of the Congress that § 1983 be judicially enforced. See id. at
289-90.
In light of the Court’s broad pronouncement in Gardner-
Denver that “there can be no prospective waiver of an
employee’s rights under Title VII,” and the application of this
principle to other federal statutes in Barrentine and Mc-
Donald, many courts concluded that the reasoning of
Gardner-Denver applied to still other federal employment
statutes, see Brisentine v. Stone & Webster Engineering
Corp., 117 F.3d 519, 526 (11th Cir. 1997) (Americans with
Disabilities Act); Cooper v. Asplundh Tree Expert Co., 836
F.2d 1544, 1553 (10th Cir. 1988) (Age Discrimination in
Employment Act (ADEA)), and held that Gardner-Denver
precluded prospective waiver of the right to sue even by the
individual employee, see Alford v. Dean Witter Reynolds,
Inc., 905 F.2d 104, 107 (Sth Cir. 1990) (Title VID, vacated
for reconsideration, 500 U.S. 930 (1991), in light of Gilmer;
Utley v. Goldman Sachs & Co., 883 F.2d 184, 187 (ist Cir.
1989) (Title VID); Nicholson v. CPC Int'l Inc., 877 F.2d 221,
229 (3d Cir. 1989) (ADEA), disapproved in Gilmer, 500 U.S.
20, 24 n.1 (1991); Swenson v. Management Recruiters Int'l
Inc., 858 F.2d 1304, 1306 (8th Cir. 1988) (Title VII).
In 1991, however, the Court staked out a limit to the
principle announced in Gardner-Denver. In Gilmer v. Inter-
state/Johnson Lane Corp., 500 U.S. 20 (1991), the Court held
lla
that a claim arising under the ADEA was validly made
subject to binding arbitration by an agreement between the
employer and the individual (non-union) employee—a result
in some tension with the broad pronouncement in Gardner-
Denver that “there can be no prospective waiver of an
employee’s rights under Title VII.” 415 U.S. at 51. The Court
began by noting that under the Federal Arbitration Act (FAA)
an agreement to arbitrate individual statutory rights is
enforceable unless the Congress intended to preclude waiver
of access to a judicial forum for vindication of that right. See
id. at 26. The text and legislative history of the ADEA reflect
no such intent, and the Court rejected the argument that
waiver should be precluded because arbitration is an inferior
mechanism for resolving individual statutory claims—an
argument to which the Court had given some weight in
Gardner-Denver, Barrentine, and McDonald, see id. at 34
n.5. The Court expressly distinguished those cases as follows:
First} [they] did not involve the issue of the
enforceability of an agreement to arbitrate statutory
claims. Rather, they involved the quite different issue
whether arbitration of contract-based claims precluded
subsequent judicial resolution of statutory claims. Since
the employees there had not agreed to arbitrate their
Statutory claims, and the labor arbitrators were not
authorized to resolve such claims, the arbitration in
those cases understandably was held not to preclude
subsequent statutory actions. Second, because the
arbitration in those cases occurred in the context of a
collective-bargaining agreement, the claimants there
were represented by their unions in the arbitration
proceedings. An important concern therefore was the
tension between collective representation and
individual statutory rights, a concern not applicable to
the present case. Finally, those cases were not decided
under the FAA .. . . Therefore, those cases provide no
12a
basis for refusing to enforce Gilmer’s agreement to
arbitrate his ADEA claim.
Id. at 35.
Thus, Gilmer establishes that an individual employee may
himself validly agree in advance to binding arbitration of a
statutory claim he may later have against his employer. See
Cole v. Burns Int'l Security Servs., 105 F.3d 1465, 1478
(D.C. Cir. 1997) (citing Gilmer for the “general rule [that]
statutory claims are fully subject to binding arbitration, at
least outside of the context of collective bargaining”). The
Court in Gilmer did not, however, address the continuing
vitality of the statement in Gardner-Denver that “the rights
conferred [by Title VII] can form no part of the collective
bargaining process.” 415 U.S. at 51; see also Wright v.
Universal Maritime Serv. Corp., 525 U.S. 70, 119 S. Ct. 391,
396 (1998) (raising but not resolving the question “whether or
not Gardner-Denver’s seemingly absolute prohibition of
union waiver of employees’ federal forum rights survives
Gilmer” ).
ALPA suggests that Gilmer “effectively supersedes”
Gardner-Denver and permits a union to waive the employees’
right to a judicial forum for statutory claims. The Fourth
Circuit and some district courts agree, see Austin v. Owens-
Brockway Glass Container, Inc., 78 F.3d 875, 885 (4th Cir.
1996); see, e.g., Almonte v. Coca-Cola Bottling Co., 959
F.Supp. 569, 573-74 (D. Conn. 1997), prematurely we think.
Whatever the Supreme Court said—or, more precisely,
refrained from saying—in Wright, we do not understand the
Court in Gilmer to have overruled Gardner-Denver. Rather,
the Court expressly distinguished that case, which strongly
implies that it remains the law within its field of application.
We therefore leave to the Court itself the prerogative of
overruling its own precedent (if it will); we apply the law as it
13a
stands. See Rodriguez de Quijas v. Shearson/American
Express Inc., 490 U.S. 477, 484 (1989).
We sce a clear rule of law emerging from Gardner-Denver
and Gilmer: Unless the Congress has precluded his doing so,
an individual may prospectively waive his own statutory right
to a judicial forum, but his union may not prospectively
waive that right for him. All of the circuits to have considered
the meaning of Gardner-Denver after Gilmer, other than the
Fourth, are in accord with this view. See Albertson’s, Inc. v.
United Food & Com. Workers Union, 157 F.3d 758, 761-62
(9th Cir. 1998); Penny v. United Parcel Service, 128 F.3d
408, 413-14 (6th Cir. 1997); Brisentine v. Stone & Webster
Engineering Corp., 117 F.3d 519, 526 (11th Cir. 1997);
Pryner v. Tractor Supply Co., 109 F.3d 354, 365 (7th Cir.
1997); cf. Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1453
(10th Cir, 1997) (individual represented by union need not
exhaust remedies under CBA before filing statutory claim in
court); Varner v. National Super Market, Inc., 94 F.3d 1209,
1213 (8th Cir. 1996) (same); Tran v. Tran, 54 F.3d 115, 117-
18 (2d Cir. 1995) (same); see also Cole v. Burns Int'l Security
Servs., 105 F.3d 1465, 1478-79 (D.C. Cir. 1997) (“It is plain
that the Supreme Court saw a critical distinction in the
situations raised by Gardner-Denver and Gilmer: Gardner-
Denver involved arbitration in the context of collective bar-
gaining .. . . Gilmer, on the other hand, raised an individual
employee claim outside the collective bargaining context”).
Thus, even after Gilmer, Gardner-Denver stands as a
firewall between individual statutory rights the Congress
intended can be bargained away by the union, see, e.g.,
Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 706-07 &
n.11 (1983) (union may waive officers’ statutory right to be
free of discrimination, such as enhanced discipline, based
upon union activity), and those that remain exclusively within
the individual’s control. Absent congressional intent to the
contrary, a union may not use the employees’ individual
l4a
statutory right to a judicial forum as a bargaining chip to be
exchanged for some benefit to the group; the statutory right
“can form no part of the collective bargaining process.”
Gardner-Denver, 415 U.S. at 51. Applying this rule to the
facts of the present case, ALPA could not lawfully agree to
the Arbitration Clause because it would effect a waiver of the
employees’ right to a judicial forum for the vindication of
_ their statutory claims of discrimination in employment.
ALPA argues, however, that even if Gardner-Denver pre-
cludes it from waiving employees’ right of access to a judicial
forum for a statutory claim, the arbitration of an employment-
related claim—whatever the legal basis for the claim—
remains a mandatory subject of bargaining. The district court
agreed, holding that the Arbitration Clause is a mandatory
subject of bargaining “regardless of whether [ALPA] can
itself enter into arbitration agreements on behalf of its
members” because the Clause “governs rules or conditions of
the pilots’ employment with Northwest.” In effect, the district
court held that an employer has to bargain over a proposal
concerning rates of pay, rules, or working conditions that the
union is not authorized to accept and the employer could not
enforce.
We cannot agree. The “essence of collective bargaining is a
notion of mutuality, that if a subject is brought up each side
has at least the authority both to offer and to concede.”
Brotherhood of Railroad Trainmen v. Akron & Barberton
Belt R.R. Co., 385 F.2d 581, 603 (D.C. Cir. 1967). It follows
that a proposal to trade that which is not one’s to give cannot
be a mandatory subject of bargaining. See Brotherhood of
R.R. Trainmen, 385 F.2d at 603-04 (proposal to bargain over
effects of job terminations, normally a mandatory subject,
held non-mandatory because union “could not bargain away
any part of the rights that accrued to employees under the
[arbitral] Award”); Southern Pacific Co. v. Switchmen’s Un-
ion, 356 F.2d 332, 334-35 (9th Cir. 1966) (proposal to
15a
redefine certain work as within particular craft held non-
mandatory because railroad could not lawfully agree to it:
“These then are not such disputes as can be resolved by
capitulation of the railroad and thus are not the proper subject
[for bargaining under RLA] section 6”). Because Gardner-
Denver precludes ALPA from agreeing to binding arbitration
of individual statutory claims, we conclude that the
Arbitration Clause is not a mandatory subject of bargaining.”
ALPA argues next that the district court properly enjoined
Northwest’s implementation of the Arbitration Clause even if
the waiver of employees’ right to a judicial forum for
statutory claims is not a mandatory subject, because ALPA
can still lawfully bargain over the procedures to be used in
arbitration. The Union claims these procedures are a
mandatory subject of bargaining because the remedy awarded
to a successful complainant in the arbitration of a
discrimination claim could affect the “rates of pay, rules, or
working conditions” of all employees, for example by
restructuring their seniority rights.
We fail to see how a remedy imposed by an arbitrator in a
proceeding involving only the employer and an individual
employee could have any adverse effect upon the working
conditions of the employees in the bargaining unit. Although
an arbitral award could indeed subject the employer to an
obligation inconsistent with the CBA, that is not the Union’s
problem but the employer’s: the employer simply cannot
make any unilateral change respecting a mandatory subject of
bargaining without first negotiating with the Union as
required under the RLA, and a private arbitration between the
* Although Gardner-Denver suggests that the arbitration of individual
statutory claims is an impermissible subject of bargaining, we need not
decide today whether it is an impermissible oF a permissible subject; the
only issue presented is whether it is a mandatory subject. See Brotherhood
of Railroad Trainmen, 385 F.2d at 604 n.52.
l6a
employer and an individual employee does not alter this rule
of law. :
In any event, as we read Gardner-Denver and Gilmer,
ALPA can have no role in negotiating obligatory procedural
rules for arbitration of individual statutory claims. Read
together, those cases establish that only the individual can
determine in what forum he will vindicate his statutory rights,
and this choice should not be burdened by the majoritarian
concerns that motivate a union. If a union has a mandatory
role in negotiating the terms that will apply to arbitration,
then it could also contrive to discourage the exercise of the
employee’s right to choose a forum.
We conclude that the Arbitration Clause is not a mandatory
subject of bargaining under the RLA. Therefore, Northwest is
not required by RLA § 2, 45 U.S.C. 152, to negotiate with
ALPA over it. Instead, Northwest may, as it did, propose the
Arbitration Clause directly to each individual employee.
While it has long been clear that “members [of a bargaining
unit] cannot bargain individually on behalf of themselves as
to matters which are properly the subject of collective
bargaining,” Steele v. Louisville & Nashville R.R. Co., 323
U.S. 192 (1944), it is just as well-established that an
employee represented by a union may bargain directly with
his employer over a non-mandatory subject of collective
bargaining as long as the proposed individual contract “is not
inconsistent with a collective agreement” or somehow
implicated in an unfair labor practice, J.J. Case Co. v. NLRB,
321 U.S. 332, 339 (1944),
Here, the Arbitration Clause applies only to the statutory
rights of individuals and is not inconsistent with the CBA; nor
is Northwest using its direct dealings with the employees
either to change anyone’s obligations under the CBA or to
avoid dealing with the union on a mandatory subject of
bargaining. Under these circumstances, the RLA is no bar to
Northwest’s contracting individually with its employees.
17a
B. ALPA’s CrossAppeal: Other Clauses New in 1995
ALPA claims the district court erred in failing to enjoin
Northwest from unilaterally implementing provisions other
than the Arbitration Clause that the carrier added to the 1995
Conditions and that concern mandatory subjects of bargain-
ing. Northwest counters that ALPA’s cross-appeal does not
present a ripe controversy in light of the airline’s adoption of
the scaled-down 1997 Conditions and its subsequent
representations concerning their application. For the reasons
stated below, we agree with Northwest and dismiss ALPA’s
cross-appeal for want of a ripe controversy.
In 1997 Northwest dropped three of the clauses in the 1995 |
Conditions about which ALPA now complains. ALPA asserts
that its challenge to these three clauses remains ripe because
“Northwest has done nothing . . . to alter or revoke the 1995
[Conditions] that have been signed by 1050 Northwest pilots,
and that still remain in effect.” At oral argument before this
court, however, Northwest deliberately and unequivocally
represented that the 1997 Conditions supersede any previous
Conditions, and that the three clauses deleted in 1997 will not
be enforced against persons who signed the 1995 (or prior)
Conditions.
Although we are aware that “voluntary cessation of
allegedly illegal conduct does not . . . make the case moot,” a
claim for injunctive relief still requires “some cognizable
danger of recurrent violation, something more than the mere
possibility which serves to keep the case alive.” United States
v. W. T. Grant Co., 345 U.S. 629, 632-33 (1953); see also
Community for Creative Non-Violence v. Hess, 745 F.2d 697,
700-01 (D.C. Cir. 1984). ALPA’s only response to this
requirement is to say that at some time in the future
Northwest might not honor its representation to the court.
That is insufficient to render ALPA’s requests for injunctive
relief ripe at this time. If in the future Northwest were to
enforce one of the clauses against a signatory employee, or
18a
were to indicate its “firm intention” to do so, Andrade v.
Lauer, 729 F.2d 1475, 1481 (D.C. Cir. 1984), then the Union
would have a ripe claim for injunctive relief; at present,
however, “the parties have no live dispute . . . and whether
one will arise in the future is conjectural,” Anderson v. Green,
513 U.S. 557, 559 (1995).
ALPA’s only other concern is with the amended version of
the Rules of Conduct clause in the 1997 Conditions. ALPA
objected to the Rules of Conduct clause in the 1995
Conditions because it stated that failure to comply with the
company’s rules and regulations “shall be grounds for [ ]
termination,” but termination is governed by the CBA. In
1997, therefore, Northwest amended the Rules of Conduct
provision to provide that Northwest’s authority to discipline
an employee represented by the Union is “subject to the
grievance and arbitration provisions of the applicable
[CBA].” This revision, coupled with Northwest’s firm
representation that it will enforce the Rules of Conduct
provision only to the extent allowed by the 1997 Conditions,
would seem to render ALPA’s claim for injunctive relief
unripe.
At oral argument, however, ALPA suggested that the
revised Rules of Conduct clause still presents a ripe contro-
versy insofar as it provides that “the Company, in its sole
discretion, may amend [its] rules, regulations, or policies
from time to time.” If Northwest ever “in its sole discretion”
changed a rule, regulation, or policy concerning a mandatory
subject of bargaining, then it would violate its obligation
under the RLA to negotiate such changes with the Union. In
response to concern over this part of the Rules of Conduct
clause, Northwest represented to the court that, “as to
mandatory subjects of bargaining, [Northwest] cannot and
will not make unilateral changes. Because the union has a
legitimate interest.” By this representation Northwest
acknowledges that the phrase “in its sci discretion” is
19a
implicitly qualified by the laws of the United States, just as if
the Condition said “provided, however, that Northwest may
not make a change concerning a mandatory subject of
bargaining without first negotiating with ALPA as required
by the RLA.”
In light of Northwest’s representation, we fail to discern
any present controversy over the Rules of Conduct clause.
The parties agree that the clause does not affect Northwest's
obligations under the RLA to negotiate with ALPA. North-
west has not invoked the clause to make any unilateral change
concerning a mandatory subject of bargaining, and it
unequivocally states that it will not do so in the future.
ALPA’s claim reduces to the fear that sometime in the future
Northwest may renege upon this representation to the court.
That possibility is speculative at best, and in our view utterly
implausible. But should it ever come to pass, then the doors
of the courthouse will be open wide to ALPA.
Ill. Conclusion
Northwest did not violate the RLA by implementing the
Arbitration Clause without first negotiating with ALPA. In
No. 98-7196, therefore, we vacate the injunction the district
court entered against Northwest. In No. 98-7202, ALPA’s
cross-appeal, we do not find a ripe case or controversy at this
time; accordingly, we dismiss that case without prejudice to
ALPA’s raising the same claim in the future.
It is so ordered
el
20a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
; [File Sept. 23, 1998]
Civil Action
No. 97-1917 (GK)
AIRLINE PILOTS ASSOCIATION, INTERNATIONAL,
Plaintiff,
v.
NORTHWEST AIRLINES, INC.
Defendant.
MEMORANDUM OPINION
The Air Line Pilots Association, International (““ALPA”’ or
“the union”) brings suit against Northwest Airlines, Inc.
(“Northwest”) under the Railway Labor Act (“RLA”), 45
U.S.C. §§ 151 et seq., to prevent Northwest from entering
into or maintaining individual contracts of employment with
newly-hired pilots. ALPA claims that such contracts violate
the RLA.
This matter is now before the Court on the parties’ cross-
Motions for Summary Judgment [#7, #8]. Upon consideration
of the Motions, Oppositions, Replies, and the entire record
herein, for the reasons discussed below, Defendant’s Motion
for Summary Judgment [#7] is granted in part and denied in
part, and Plaintiff's Motion for Summary Judgment [#8] is
granted in part and denied in part.
2la
I. Background'
Plaintiff ALPA is the collective bargaining representative
for pilots employed by Northwest. Since 1940, ALPA has
negotiated numerous collective bargaining agreements
establishing rates of pay, rules, and working conditions for
Northwest pilots.
Beginning in or around 1966, Northwest has required each
of its prospective pilot employees to sign a document entitled
“Conditions of Employment” (“COE”) as a pre-condition to
employment. ALPA claims to have had no knowledge of the
existence of the pre-condition, but this claim is hotly dis-
puted. Northwest has, over the years, modified the COE on
numerous occasions; the precise terms of the COEs have thus
changed over time. Northwest made each of these changes
without the involvement of, or explicit notice to, ALPA.
Northwest notes that, since approximately 1966, nearly
every newly-hired pilot at Northwest has signed a version of
the COE form. It thus characterizes as “dubious” ALPA’s
assertion that it was unaware of the existence of the COEs.
(Def.’s Disputed Facts J 2.) Northwest suggests that, at most,
only ALPA’s staff members might have been unaware of the
COEs, while Northwest pilots, given that they each signed the
documents, were “unquestionably” aware of the documents.
(/d.)
The COEs have always addressed: (1) wages to be paid
during the applicant’s training period with Northwest, before
the applicant becomes a member of the class represented by
' Pursuant to Local Rule 108(h), “{iJn determining a motion for
summary judgment, the Court may assume that facts identified by the
moving party in its statement of material facts are admitted, unless such a
fact is controverted in the statement of genuine issues filed in opposition
to the motion.” Accordingly, unless otherwise noted, the Court takes its
facts from the uncontroverted statements contained in the parties’
Statements of Undisputed Facts.
22a
ALPA; (2) Northwest’s use of the new hire’s likeness in
advertisements; and (3) Northwest’s proprietary interest in
inventions developed as a result of employment with
Northwest.
In 1995, the COE form was modified to include a provision
in which pilots agree to submit certain statutory and common
law claims (e.g., claims of discrimination in employment
arising under Title VII of the Civil Right Act, 42 U.S.C.
§§ 2000e et seq.) to binding arbitration (“the arbitration
provision”). Since 1995, Northwest has hired approximately
1,050 pilots, each of whom has signed the version of the COE
containing the arbitration provision.
In April 1997, Northwest informed ALPA Contract
Administrator Rob Plunkett that it intended to discharge a
pilot who had not yet completed his probationary period.
(Plunkett Decl. at Ex. 2, Letter from Tice to Plunkett of
4/14/97; Plunkett Decl. ¥ 2.) Northwest’s letter to Plunkett
referenced “the conditions of employment [the pilot] signed
when he was hired”. (/d.) ALPA claims, but Northwest
disputes, that it was only by virtue of the April 14 letter that
ALPA become aware of Northwest’s practice of requiring all
pilots to sign the COE agreements at the time of hire. (P1.’s
Undisputed Facts | 4; Def.’s Disputed Facts § 2.)
In May 1997, ALPA notified Northwest that it believed the
company’s practice of requiring pilots to sign the COEs as a
condition of hire violated the RLA, and demanded that
Northwest cease the practice. When informal efforts to
resolve the issue failed, ALPA filed the instant case.
ALPA’s essential claim in this case is that RLA § 2 First,
42 U.S.C. § 152, prohibits an employer whose employees are
represented for purposes of collective bargaining from
negotiating individual contracts with those employees
covering their “rates of pay, rules, and working conditions”,
unless the union has consented to the individual negotiations.
23a
ALPA alleges that the COEs do in fact cover “rates of pay,
rules, and working conditions”, and states that it never
consented to Northwest’s engaging in the individual
negotiations. It claims that the COEs create both actual and
potential conflicts with the parties’ collective bargaining
agreement.
ALPA now seeks an injunction restraining Northwest from
entering into additional COEs, a declaratory judgment
declaring all COEs signed by Northwest pilots in the past null
and void, and attorneys’ fees and costs. (Compl. at 4.)
II. Standard of Review
Summary judgment will be granted when the pleadings,
depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c). A fact is “material” if it might affect the outcome of
the action under the governing law. Anderson v. Liberty
Lobby, Inc. 477 U.S. 242 (1986). The party seeking summary
judgment bears the initial burden of demonstrating an absence
of a genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
In determining whether the movant has met this burden, a
court must consider all factual inferences in the light most
favorable to the non-moving party. McKinney v. Dole, 765
F.2d 1129, 1135 (D.C. Cir. 1985) . Once the moving party
makes its initial showing, however, the nonmoving party
must demonstrate “specific facts showing that there is a
genuine issue for trial.” Celotex, 477 U.S. at 324; McKinney,
765 F.2d at 1135. Moreover, “[iJn determining a motion for
summary judgment, the court may assume that facts
identified by the moving party in its statement of material
facts are admitted, unless such a fact is controverted in the
24a
statement of genuine issues filed in opposition to the motion.”
Local Rule 108(h).
If. Analysis
A. Statutory Background
The parties agree that this labor dispute is governed by the
RLA. The RLA permits a class of employees to choose, by
majority, a labor union through which the employees have the
right to organize and bargain collectively. 45 U.S.C. § 152
Fourth. The RLA was extended in 1936 to cover the airline
industry. See Hawaiian Airlines. Inc. v. Norris, et al., 512
U.S. 246, 248 (1994).
The RLA requires employers to negotiate with their
employees or their employees’ representatives over changes
affecting the rates of pay, working rules, or working
conditions of their employees. 45 U.S.C. § 152 Sixth and
Seventh; see also Brotherhood of R.R. Trainmen, et al., v.
Akron & Barberton Belt R.R. Co., et al., 385 F.2d 581, 601
(D.C. Cir. 1967). The statute provides for the settlement of
disputes concerning employees’ rates of pay, rules of
employment, or working conditions, RLA § la(4) , as well as
disputes arising out of grievances or the interpretation of
collective bargaining agreements covering rates of pay, rules,
or working conditions, /d. § la(5). 45 U.S.C. § 151a(4) and
(5).
A labor dispute governed by the RLA will generally take
one of two procedural paths to resolution, depending on how
it is categorized. The RLA distinguishes two classes of
controversy that arise between employers, or “carriers”, and
unions: “major disputes”, in which a party seeks to create
contractual rights, and “minor disputes”, in which a party
seeks to enforce existing contractual rights. Consol. Rail
Corp. v. Railway Labor Executives’ Ass'n, (“Conrail”) 491
U.S. 299, 302 (1989).
25a
The statutory bases for the “major dispute” category can be
found in RLA §§ 2 Seventh and 6, 45 U.S.C. §§ 152 and 156.
Section 2 Seventh states that “[nJo carrier . . . shall change the
rates of pay, rules, or working conditions of its employees, as
a class as embodied in agreements except in the manner
prescribed in such agreements” or through the mediation
procedures established in RLA § 6, 45 U.S.C. § 156. 45
U.S.C. § 152 Seventh. Any attempted change by an employer
of rates, rules, or working conditions can only be made in
accordance with existing collective bargaining agreements
between the employer and the union, or through established
conference’ or mediation procedures. Disputes arising under
these RLA provisions thus fall into the “major” dispute
category.
Thus, the RLA contemplates that the parties, when engaged
in a major dispute, will undergo a lengthy process of
bargaining and mediation. Until they have exhausted that
process, the parties are required to maintain the status quo,
and the employer may not implement the contested change in
- rates of pay, rules, or working conditions. 45 U.S.C. §§ 155
and 156.
District courts have subject-matter jurisdiction to enjoin
violations of the status quo pending completion of the
bargaining and mediation process. Conrail, 491 U.S. at 302-3
(citing Detroit & T.S.L.R. Co. v. Transp. Union, 396 U.S. 142
(1969) (additional citations omitted)). If the bargaining and
mediation process ends and no agreement has been reached,
the parties may then resort to the use of economic force, /.e.,
strikes, lock-outs, etc.’ Conrail, 491 U.S. at 303.
? The term “conference” in the RLA refers to negotiations or
discussions that take place between the representatives of employers and
those of employees. See, e.g., 45 U.S.C. § 152 Second.
> Section 5 First of the RLA does provide for arbitration of major
disputes if mediation efforts are unsuccessful. The National Mediation
—_
26a
“Minor disputes” are resolved through a different process
under the RLA. Their statutory bases are found in RLA §§ 2
Sixth and 3 First (i), 45 U.S.C. §§ 152 Sixth and 153 First.
Section 2 requires employers and unions to attempt to
resolve, through conferences, disputes “arising out of
grievances or out of the interpretation or application of
agreements concerning rates of pay, rules, or working
conditions”. 45 U.S.C. § 152. Should that process be
unsuccessful, § 3 First has been interpreted by the courts to
subject minor disputes to compulsory and binding arbitration.
45 U.S.C. § 153; Conrail, 491 U.S. at 303-04.
Minor disputes are thus resolved through arbitration, over
which a System Board of Adjustment established by
agreement of the parties (“Adjustment Board”), has exclusive
jurisdiction.* RLA § 3 First, 45 U.S.C. § 153. Although
courts may enjoin strikes arising out of minor disputes,
Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30 (1957),
“[jJudicial review of the arbitral deci: .on is limited.” Conrail,
491 U.S. at 304 (citing Union Pacific R.R. Co. v. Sheehan,
439 U.S. 89, 93 (1978)); see also, 45 U.S.C. § 153.
B. Whether Northwest’s Use of the COE Agreements
Constitutes a Mandatory Subject of Bargaining
ALPA claims that most, if not all, of the subjects covered
in the COE agreements affect Northwest pilots’ “rates of pay,
Board is required to attempt “to induce. the parties to submit their
controversy to arbitration.” 45 U.S.C. § 155. Participation in arbitration is
voluntary, however, pursuant to §7 First of the RLA. /d. at § 157.
* The Collective Bargaining Agreement Between ALPA and Northwest
establishes a System Board of Adjustment known as the “Northwest
Airlines Pilots’ System Board of Adjustment” for the purpose of deciding
disputes that-arise under the terms of the Agreement. (Plunkett Decl. Ex.
1, Collective Bargaining Agreement Between ALPA and Northwest, at
§ 21.)
27a
rules, and working conditions”. As stated above, employers
must negotiate with their employees’ representatives over
changes affecting employees’ rates of pay, working rules, or
working conditions. 45 U.S.C. § 152 Sixth and Seventh;
Brotherhood of R.R. Trainmen, 385 F.2d at 601.
Northwest responds that many of the provisions of the
COE agreements are outside the scope of bargainability,
including the arbitration provision. The airline thus reasons
that it is under no obligation to negotiate with the union over
those issues.
Northwest has submitted different versions of the COEs as
Exhibits to the Declaration of Robert Brodin. (Brodin Decl.,
Exs. A-O.) The COEs are similar to each other, with the
exception of the version modified in 1995 which adds the
arbitration provision. (Brodin Decl., Ex. 0.). Some of the
topics covered by the COEs include:
1. Pay during the pilots’ probationary period;
2. Northwest’s right to require mandatory medical
examinations of pilots to determine physical or mental
fitness;
3. Northwest’s right, during the entire duration of
employment, to interpret and change, at its “sole
option”, policies regarding “working hours, vacations,
sick leave, pay increases, promotions, garnishments
and other working conditions”;
4. Northwest’s right to terminate pilots without cause and
without notice during the probationary period of their
employment;
5. Northwest’s right to use, for any purpose, including
advertising, any photograph of the pilots during their
employment;
6. The pilots’ obligations to disclose and assign to
Northwest any invention “capable of being used by the
28a
Company to its advantage” conceived by the pilots
during the period of their employment;
7. The pilots’ duty, during and after their terms of
employment, to keep confidential certain information
relating to the airline;
8. Rights of pilots over the age of 60 to continue flying as
Second Officer so long as they follow certain
procedures established by the airline; and, in the 1995
version of the COE,
9. Pilots’ agreement to submit to binding arbitration any
claims against or disputes with the company,
“including pay, benefits, work rules, [and] discipline or
termination . . . any claims which [a pilot] may have
against the company arising from the employment
relationship”, including claims arising under Title VII
of the Civil Rights Act 42 U.S.C. 2000e et seq., the
Age Discrimination in Employment Act, 29 U.S.C.
§ 621 et seq., the Americans with Disabilities Act, 42
U.S.C. § 1201 et seq., or any other state or federal law
prohibiting discrimination. This provision also imposes
upon the pilots the obligation to share equally with the
airline the expenses of a neutral arbitrator and any
court reporter.
This examination of the topics included in the COEs shows
clearly that they are comprehensive agreements which impose
many rules and policies on pilots that significantly impact
their working conditions. For example, the COEs explicitly
govern the pilots’ rate of pay during their probationary
period; give Northwest the “sole option” of changing, without
notice, “working hours, vacations, sick leave, pay increases,
promotions, garnishments and other working conditions”; and
establish various rules and policies affecting the pilots both
during and after their employment.
ne sn ene
EE Le ate ce oR SRI CPR AC MN Mig oe aa are a Nee ae ME yttite?
29a
Given the fact that “[t]he scope of bargainability is
extremely broad”, Brotherhood of R.R. Trainmen, 385 F.2d
601, and that the COE agreements contain provisions that
clearly govern the “rates of pay, rules, and working
conditions” of represented pilots, the Court concludes that
Northwest’s use of the COEs constitutes a mandatory subject
of bargaining. 45 U.S.C. §§ 152 Sixth and Seventh;
Brotherhood of R.R. Trainmen, 385 F.2d at 601.
C. Whether the Arbitration Provision Constitutes a Man-
datory Subject of Bargaining
In addition to disagreeing over whether the use of the
COEs, as a general practice, constitutes a mandatory subject
of bargaining, the parties dispute vigorously whether the
arbitration provision, in particular, is a subject of mandatory
collective bargaining.
ALPA argues that this provision, which provides for the
mandatory arbitration of statutory claims, is a “working
condition” subject to mandatory collective bargaining. As
such, Northwest was required to bargain with ALPA prior to
implementing the provision.
Northwest responds that it has no obligation to bargain
with ALPA over the arbitration provision. It claims that there
is a fundamental distinction between “collective rights”,
which are within the union’s purview, and “individual rights”
(such as those protected by ‘anti-discrimination statutes like
Title VII), which fall outside its authority. Therefore,
according to Northwest, the decision whether to arbitrate
statutory and wrongful discharge claims can form no part of
the collective bargaining process because it relates to
“individual rights”.
Courts have indeed held that labor unions may not agree to
a mandatory arbitration clause in the absence of explicit
consent by each affected employee, since unions do not have
30a
the authority to waive an individual employee’s right to seek
a judicial remedy to enforce a statutory right. See, e.g.,
Alexander v. Gardner-Denver Co., 415 U.S. 36, 51 (1974);
Brisentine v. Stone & Webster Eng’g Corp., 117 F.3d 519,
526 (11th Cir. 1997). Northwest rightly reads these cases to
prohibit ALPA from making a commitment on behalf of its
members, absent each individual employee’s consent,
regarding mandatory arbitration of individual discrimination
and discharge claims.
Northwest mistakenly concludes, however, that because
ALPA may not waive employees’ rights by agreeing to
mandatory arbitration provisions, it follows that the union has
no authority to bargain with Northwest over the use or terms
of any agreement to arbitrate.
ALPA correctly points out that, regardless of whether it
can itself enter into arbitration agreements on behalf of its
members, Northwest is nevertheless required, under § 2
Seventh of RLA, 45 U.S.C. § 152, to obtain the union’s
consent before it can execute individual contracts affecting
the “rates of pay, rules, or working conditions” of represented
employees.
The arbitration provision sets forth the manner in which
pilots must resolve certain grievances arising from and thus
related to their employment with Northwest. Northwest and
ALPA have negotiated, and have included in the provisions
of their collective bargaining agreement, the manner in which
other “grievance[s] concerning any action of the Company”
are to be resolved. (Plunkett Decl. Ex. 1, Collective
Bargaining Agreement between ALPA and Northwest, at
§§ 20-21.) Sections 20-21 of the collective bargaining
agreement provide for appeal of an airline decision regarding
those grievances to the Adjustment Board for binding
arbitration. (/d.)
3la
The arbitration provision contained in the COEs differs
from that contained in the collective bargaining agreement
only in that it provides for the resolution of a specific type of
grievance or claim (e.g., statutory sex or race discrimination
claims) arising from an action or actions of the Company.
Like the grievance and arbitration provisions contained in the
collective bargaining agreement, which were negotiated by
the parties, the COEs’ arbitration provision governs rules or
conditions of the pilots’ employment with Northwest and is
thus a mandatory subject of bargaining. See also Brotherhood
of R.R. Trainmen, 385 F.2d 601 (discussing the broad scope
of bargainability).
Since the arbitration provision impacts the rates, rules, or
working conditions of Northwest pilots, it does not
automatically fall outside the scope of mandatory bargaining
under the RLA.
D. Whether the Parties’ Dispute Over Northwest’s Use of
the pre-1995 COEs° Is a “Major” or “Minor” One
Under the RLA
If the Court determines that the matter before it constitutes
a “major” dispute, then it has subject-matter jurisdiction to
enjoin a violation of the status quo pending the parties’
completion of the bargaining and mediation process. RLA
§§ 2 Seventh and 6, 45 U.S.C. §§ 152 and 156; see also
Conrail, 491 U.S. at 302-03. If the Court determines that the
parties are involved in a “minor” dispute, the matter shall be
resolved through conference® or compulsory arbitration, and
the Adjustment Board has exclusive jurisdiction over the
* The Court will discuss separately the COEs used by Northwest prior
to 1995 that do not contain the arbitration provision, and those employed
from 1995 to the present, which do contain that provision.
° See supra footnote 2.
32a
dispute. RLA §§ 2 Sixth and 3, 45 U.S.C. §§152 and 153; see
also Conrail 491 U.S. at 304.
The term “major dispute” refers to:
disputes over the formation of collective agreements or
efforts to secure them. They arise where there is no such
agreement or where it is sought to change the terms of
one, and therefore the issue is not whether an existing
agreement controls the controversy. They look to the
acquisition of rights for the future, not to assertion of
rights claimed to have vested in the past.
Conrail, 491 U.S. at 302 (quoting Elgin, J. & E.R. Co. v.
Burley, 325 U.S. 711, 723 (1945) (emphasis added)).
The term “minor dispute”’:
contemplates the existence of a collective agreement
already concluded, or at any rate, a situation in which no
effort is made to bring about a formal change in terms or
to create a new one . . . [T]he claim is to rights accrued,
not merely to have new ones created for the future.
Conrail, 491 U.S. at 303 (quoting Burley, 325 U.S. at 723).
_Northwest claims the right, based on the “unbroken
understanding of three decades”, to “promulgate, amend, and
rely upon its Conditions of Employment.” (Def.’s Mem.
Summ. J. at 18.) Northwest argues that ALPA, by virtue of
its three decades of silence, has acquiesced to its practice of
requiring newly hired pilots to sign COEs. Northwest also
claims that because its practice is so longstanding and, until
now, uncontested by the union, that it has risen to the level of
an implied contractual term. That implied contractual term,
according to Northwest, grants it discretionary authority to
require pilots to sign COE agreements as a precondition to
employment and permits it to make unilateral changes in the
terms of the COEs.
33a
Northwest claims that it seeks no new rights for the future,
but instead is asserting rights that have vested in the past. See
Burley, 325 U.S. at 723. According to its formulation of the
issue, the matter before the Court falls squarely within the
“minor dispute” category.
ALPA responds that neither it nor its individual members
| knew about nor acquiesced to the use of the COEs. Absent
the union’s actual knowledge of the past practice, ALPA
argues that the past practice in this case can give rise to no
implied existing contractual agreement. Past practices rise to
the level of an implied agreement only when, ALPA argues,
they have “ripened into an established and recognized custom
between the parties.” Brotherhood of Ry. Carmen v.
Missouri Pacific R.R. Co., 944 F.2d 1422, 1429 (8th Cir.
1991) (citations omitted) (emphasis added).
ALPA states that a practice must be “understood by the
parties to at least impliedly serve as if [it is] part of the
collective bargaining agreement.” Air Line Pilots Ass'n v.
Eastern Air Lines, Inc., 863 F.2d 891, 897 (D.C. Cir. 1988)
(citations omitted). ALPA argues that, in this case, there was
no understanding between the parties. Since ALPA believes
that Northwest has demonstrated neither notice to nor
acceptance by the union of the COEs, it concludes that there
can be no “past practice” in this case.
Carrying ALPA’s argument to its logical conclusion, if
there is no past practice upon which Northwest may lawfully
rely, any rights claimed by the airline have not in fact vested ~
in the past, but instead are claims to have new rights created.
See Burley, 325 U.S. at.723. Under this formulation, the
matter would fall within the category of “major dispute”.
The Supreme Court in Conrail articulated the standard to
be used by courts to differentiate between “major” and
“minor” disputes. 491 U.S. at 310. The Conrail Court held
that:
| ,
34a
{I]f an employer asserts a claim that the parties’
agreement gives the employer the discretion to make a
particular change in working conditions without prior
negotiation, and if that claim is arguably justified by the
terms of the parties’ agreement (i.e., the claim is neither
obviously insubstantial or frivolous, nor made in bad
faith), the employer may make the change and the courts
must defer to the arbitral jurisdiction of the Board.
Conrail, 491 U.S. at 310.
In Conrail, the railroad had, for ten years, routinely
required its employees to undergo physical examinations. The
parties agreed that Conrail’s authority to conduct physical
examinations had ripened into an implied term of the parties’
collective-bargaining agreement, which had been established
by longstanding past practice and acquiesced to by the union.
Id. at 312. The union contested, however, Conrail’s unilateral
expansion of that longstanding practice to include drug
testing as extending beyond the scope of the implied terms of
the collective bargaining agreement.
The Supreme Court held that the case constituted a minor
dispute between Conrail and the union that fell within the
exclusive jurisdiction of the Adjustment Board. The Court
reasoned that, while the union’s arguments’ could
“conceivably carry the day . . . they do not convince us that
Conrail’s contractual arguments are frivolous or insub-
stantial.” Jd. at 317.
The Court must, in the matter before it, reach the same
conclusion as that reached by the Conrail court. ALPA may
ultimately demonstrate, after a full evidentiary hearing, that
its 30-year silence did not constitute union consent to the
COEs and that no implied contractual term could exist. It has
not convinced the Court, however, that Northwest’s
contractual arguments are “frivolous or insubstantial”.
35a
Northwest’s interpretation of the range of its discretion to
include authority to “promulgate, amend, and rely upon its
Conditions of Employment”, is “arguably justified” by its 30-
year practice of having done so.
The Court holds that the use of the pre-1995 COEs
constitutes a “minor dispute” which falls within the exclusive
jurisdiction of the Adjustment Board. The Court emphasizes,
however, that it holds only that Northwest has “met the light
burden of persuading this Court that its [] practice is arguably
justified by the implied terms of its collective-bargaining
agreement.” Conrail, 491 U.S. at 320. The Court does “not
seek to minimize any force in the Union’s arguments”, nor
does the Court suggest that Northwest “is or is not entitled to
prevail before the Board on the merits of the dispute.” /d.
E. Whether the Parties’ Dispute Over the post-1995
COEs’ Is a “Major” or “Minor” One Under the RLA
In 1995, Northwest amended the COE to include the
provision for arbitration of statutory and common law claims.
Since then, Northwest has included the arbitration provision
in approximately 1,050 COEs with newly-hired pilots, and
there is no indication that the airline intends to remove the
provision from future COE agreements. In 1997, ALPA
contested the airline’s authority to require both the arbitration
provisions and the COE agreements in general.
Northwest cannot, and indeed does not, argue that ALPA
has acquiesced to the airline’s use of the arbitration provision.
Unlike its use of the pre-1995 COEs, the airline does not
claim that the 1995 arbitration requirement is an implied
contractual term of the collective bargaining agreement
between Northwest and the union.
7 The Court will refer to the COEs containing the arbitration provision
as the “post-1995 COEs”.
36a
As discussed above, a “major dispute” under the RLA
arises “where there is no such [collective bargaining]
agreement or where it is sought to change the terms of one”.
Conrail, 491 U.S. at 302 (quoting Burley, 325 U.S. at 723
(emphasis added)). The terms of the collective bargaining
agreement between the parties provide for the resolution of
“grievance[s] concerning any action of the Company”.
(Plunkett Decl. Ex. 1, Collective Bargaining Agreement
between ALPA and Northwest, at § 20.) Sections 20-21 of the
collective bargaining agreement require appeals of airline
decisions regarding those grievances to be submitted to the
Adjustment Board for binding arbitration. (/d. at §§ 20-21.)
The collective bargaining agreement does not, however,
explicitly provide for the mandatory arbitration of individual
statutory or common law claims. Northwest’s inclusion of the
arbitration provision thus seeks to change the terms of the
existing collective bargaining agreement and, by doing so, to
create new rights.
Therefore, the Court finds that the parties’ dispute over
Northwest’s use of the COEs containing the arbitration
provision constitutes a major dispute for purposes of the RLA
and is thus governed by RLA §§ 2 Seventh and 6, 45 U.S.C.
§§ 152 and 156.
In the case of major disputes, the employer may not
implement the contested change until the parties have
completed the statutorily mandated bargaining and mediation
process. RLA §§ 2 Seventh and 6, 45 U.S.C. §§ 152 and 156;
Conrail, 491 U.S. at 302-03. For that reason, the Court will
enjoin Northwest from implementing existing COEs that
contain the arbitration provisions, or requiring new pilots to
sign COEs containing that provision, pending completion of
the bargaining and mediation process. Conrail, 491 U.S. at
302-03 (citing Detroit & T.S.L.R., 396 U.S. at 142).
37a
IV. Conclusion
For the reasons discussed above, it is hereby
ORDERED, that Defendant’s Motion for Summary
Judgment [#7] is granted in part and denied in part, and
Plaintiff's Motion for Summary Judgment [#8] is granted in
part and denied in part, as follows:
The Court concludes that the labor dispute concerning
Northwest’s longstanding practice of requiring COEs as a
precondition of employment constitutes a “minor dispute” as
that term is used pursuant to the RLA. As such, the Northwest
Airlines Pilots’ System Board of Adjustment (the Adjustment
Board agreed to by the parties pursuant to RLA § 3 Second,
45 U.S.C. § 153) has exclusive jurisdiction over that dispute.
This holding affects only the pre-1995 COEs, i.e., those
executed prior to Northwest’s adoption of the arbitration
provision.
The Court further concludes that the labor dispute
concerning Northwest’s use of the post-1995 COEs (those
containing the arbitration provision) constitutes a “major
dispute”. Consequently, Northwest Airlines is enjoined from
implementing COEs containing the arbitration provision and
from requiring from newly-hired pilots COEs containing the
provision pending completion of the bargaining and
mediation process required by RLA §§ 5 and 6, 45 U.S.C.
§§ 155 and 156. All issues having been decided, this case is
now closed. An Order will issue with this Opinion.
Date: Sept. 23, 1998
/s/ Gladys Kessler
GLADYS KESSLER
United States District Judge
38a
Copies to:
JERRY ANKER
Airline Pilots Ass’n
1625 Massachusetts Ave., NW
Washington, DC 20036
NEAL MOLLEN
Suite 1000
PAUL, HASTINGS, JANOFSKY & WALKER, L.L.P.
1299 Pennsylvania Ave., NW
Washington, DC 20004
39a
APPENDIX C
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
[Filed Sept. 23, 1998]
Civil Action
No. 97-1917 (GK)
AIRLINE PILOTS ASSOCIATION, INTERNATIONAL,
Plaintiff,
v.
NORTHWEST AIRLINES, INC.
Defendant.
ORDER
The Air Line Pilots Association, International (“ALPA” or
“the union”) brings suit against Northwest Airlines, Inc.
(“Northwest”) under the Railway Labor Act (“RLA”), 45
U.S.C. §§ 151 et seq., to prevent Northwest from entering
into or maintaining individual contracts of employment with
newly-hired pilots. ALPA claims that such contracts violate
the RLA.
This matter is now before the Court on the parties’ cross-
Motions for Summary Judgment [#7, #8]. Upon consideration
of the Motions, Oppositions, Replies, and the entire record
herein, for the reasons discussed below, Defendant’s Motion
for Summary Judgment [#7] is granted in part and denied in
part, and Plaintiff's Motion for Summary Judgment [#8] is
granted in part and denied in part, as follows:
40a
The Court finds that the labor dispute concerning North-
west’s longstanding practice of requiring COEs as a pre-
condition of employment constitutes a “minor dispute” as that
term is used pursuant to the RLA. As such, the Northwest
Airlines Pilots’ System Board of Adjustment (the Adjustment
Board agreed to by the parties pursuant to RLA § 3 Second,
45 U.S.C. § 153) has exclusive jurisdiction over that dispute.
This holding affects only the pre-1995 COEs, i.e., those
executed prior to Northwest’s adoption of the arbitration
provision.
The Court further concludes that the labor dispute
concerning Northwest’s use of the post-1995 COEs (those
containing the arbitration provision) constitutes a “major
dispute”. Consequently, Northwest Airlines is enjoined from
implementing COEs containing the arbitration provision and
from requiring from newly-hired pilots COEs containing the
arbitration provision pending completion of the bargaining
and mediation process required by RLA §§ 5 and 6, 45
U.S.C. §§ 155 and 156.
Date: Sept. 23, 1998 /s/ Gladys Kessler.
GLADYS KESSLER.
United States District Judge
4la
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
[Filed Oct. 07, 1998]
Civil Action No. 97-1917 (GK)
AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,
. Plaintiff,
v.
NORTHWEST AIRLINES, INC.,
Defendant.
ORDER
Upon consideration of the Unopposed Motion of
Defendant Northwest Airlines for Amendment of Order, and
the entire record herein,
It is hereby ORDERED that the Court’s Order dated
September 23, 1998, is amended by inserting, at the end of
the final sentence:
“except that Northwest may require new pilot trainees
to execute Conditions of Employment, including
arbitration provisions. All of the provisions of those
Conditions of Employment documents will be
enforceable as to the employment of pilot trainees
until the pilot trainee enters active service at
Northwest.”
IT IS SO ORDERED
Date: Oct. 2, 1998 /s/ Gladys Kessler.
GLADYS KESSLER.
United States District Judge
42a
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
[Filed Mar 9, 2000]
97cv01917
No. 98-7196
AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,
Appellee
v.
NORTHWEST AIRLINES, INC.,
Appellant
Consolidated with 98-7202
BEFORE: EDWARDS, Chief Judge; SILBERMAN,
WILLIAMS, GINSBURG, SENTELLE, HENDERSON,
RANDOLPH, ROGERS, TATEL and GARLAND, Circuit
Judges
ORDER
Upon consideration of the petition for rehearing en banc of
appellee/cross-appellant, the response thereto, and the vote by
a majority of the judges of the court in regular active service
in favor of the petition, it is
ORDERED that the petition be granted. These cases will
be reheard by the court sitting en banc on Wednesday, May
10, 2000 at 10 A.M. The judgment filed herein on December
28, 1999 is hereby vacated. It is
43a
FURTHER ORDERED that an order governing further
proceedings shall issue separately.
Per Curiam
FOR THE COURT:
/s/ Mark J. Langer,
MARK J. LANGER,
Clerk
BY: Robert A. Bonner
Deputy Clerk
44a
APPENDIX F
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
[Filed May 19, 2000]
Nos. 98-7196 and 98-7202
AIR LINE PILOTS ASSOCIATION, INTERNATIONAL
Appellee/Cross-Appellant
v.
NORTHWEST AIRLINES, INC.
Appellant/Cross-Appellee
Appeals from the United States District Court
for the District of Columbia
(No. 97cv01917)
BEFORE: EDWARDS, Chief Judge, SILBERMAN,
WILLIAMS, GINSBURG, SENTELLE, HENDERSON,
RANDOLPH, ROGERS, TATEL, and GARLAND, Circuit
Judges.
JUDGMENT
These appeals were considered en banc on the briefs and
arguments of the parties. It is
ORDERED AND ADJUDGED that the judgment and
opinion of the court announced by the panel in these cases,
199 F.3d 477 (D.C. Cir. 1999), are reinstated as the judgment
and opinion of the court sitting en banc.
45a
Per curiam
FOR THE COURT:
/s/ Mark J. Langer,
MARK J. LANGER, CLERK
By: Eva Brown
Deputy Clerk
46a
APPENDIX G
PERTINENT PROVISIONS OF THE
RAILWAY LABOR ACT
45 U.S.C. § 152. General duties
First. Duty of carriers and employees to settle disputes
It shall be the duty of all carriers, their officers, agents, and
employees to exert every reasonable effort to make and
maintain agreements concerning rates of pay, rules, and
working conditions, and to settle all disputes, whether arising
out of the application of such agreements or otherwise, in
order to avoid any interruption to commerce or to the
operation of any carrier growing out of any dispute between
the carrier and the employees thereof.
Second. Consideration of disputes by representatives
All disputes between a carrier or carriers and its or their
employees shall be considered, and, if possible, decided, with
all expedition, in conference between representatives desig-
nated and authorized so to confer, respectively, by the carrier
or carriers and by the employees thereof interested in the
dispute.
Third. Designation of representatives
Representatives, for the purposes of this chapter, shall be
designated by the respective parties without interference,
influence, or coercion by either party over the designation of
representatives by the other; and neither party shall in any
way interfere with, influence, or coerce the other in its choice
of representatives. Representatives of employees for the
purposes of this chapter need not be persons in the employ of
the carrier, and no carrier shall, by interference, influence, or
coercion seek in any manner to prevent the designation by its
employees as their representatives of those who or which are
not employees of the carrier.
47a
Fourth. Organization and collective bargaining; freedom
from interference by carrier; assistance in organizing
or maintaining organization by carrier forbidden;
deduction of dues from wages forbidden
Employees shall have the right to organize and bargain
collectively through representatives of their own choosing.
The majority of any craft or class of employees shall have the
right to determine who shall be the representative of the craft
or class for the purposes of this chapter. No carrier, its
officers or agents, shall deny or in any way question the right
of its employees to join, organize, or assist in organizing the
labor organization of their choice, and it shall be unlawful for
any carrier to interfere in any way with the organization of its
employees, or to use the funds of the carrier in maintaining or
assisting or contributing to any labor organization, labor
representative, or other agency of collective bargaining, or in
performing any work therefore, or to influence or coerce
employees in an effort to induce them to join or remain or not
to join or remain members of any labor organization, or to
deduct from the wages of employees any dues, fees,
assessments, or other contributions payable to labor
organizations, or to collect or to assist in the collection of any
such dues, fees, assessments, or other contributions:
Provided, That nothing in this chapter shall be construed to
prohibit a carrier from permitting an employee, individually,
or local representatives of employees from conferring with
management during working hours without loss of time, or to
prohibit a carrier from furnishing free transportation to its
employees while engaged in the business of a labor
organization.
48a
Sixth. Conference of representatives; times; place; private
agreements
In case of a dispute between a carrier or carriers and its or
their employees, arising out of grievances or out of the
interpretation or application of agreements concerning rates
of pay, rules, or working conditions, it shall be the duty of the
designated representative or representatives of such carrier or
carriers and of such employees, within ten days after the
receipt of notice of a desire on the part of either party to
confer in respect to such dispute, to specify a time and place
at which such conference shall be held: Provided, (1) That the
place so specified shall be situated upon the line of the carrier
involved or as otherwise mutually agreed upon; and (2) that
the time so specified shall allow the designated conferees
reasonable opportunity to reach such place of conference, but
shall not exceed twenty days from the receipt of such notice:
And provided further, That nothing in this chapter shall be
construed to supersede the provisions of any agreement (as to
conferences) then in effect between the parties.
Seventh. Change in pay, rules, or working conditions con-
trary to agreement or to section 156 forbidden
No carrier, its officers or agents shall change the rates of
pay, rules, or working conditions of its employees, as a class
as embodied in agreements except in the manner prescribed
in such agreements or in section 156 of this title.
* * *
45 U.S.C. § 156. Procedure in changing rates of pay, rules,
and working conditions
Carriers and representatives of the employees shall give at
least thirty days’ written notice of an intended change in
agreements affecting rates of pay, rules, or working
conditions, and the time and place for the beginning of
conference between the representatives of the parties
49a
interested in such intended changes shall be agreed upon
within ten days after the receipt of said notice, and said time
shall be within the thirty days provided in the notice. In every
case where such notice of intended change has been given, or
conferences are being held with reference thereto, or the
services of the Mediation Board have been requested by
either party, or said Board has proffered its services, rates of
pay, rules, or working conditions shall not be altered by the
carrier until the controversy has been finally acted upon as
required by section 155 of this title, by the Mediation Board,
unless a period of ten days has elapsed after termination of
conferences without request for or proffer of the services of
the Mediation Board.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.