Atlas Air, Inc. v. Int'l Bhd. of Teamsters

• Court: Court of Appeals for the Second Circuit
• Decided: November 21, 2019
• Docket: 18-1086-cv
• Status: Published

Opinion

18‐1086‐cv Atlas Air, Inc. v. Intʹl Bhd. of Teamsters

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2018

(Argued: May 3, 2019 Decided: November 21, 2019)

Docket No. 18‐1086

ATLAS AIR, INC., SOUTHERN AIR, INC., Plaintiffs‐Appellees,

‐ against ‐

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AIRLINE PROFESSIONALS ASSOCIATION OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL UNION NO. 1224, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AIRLINE DIVISION, Defendants‐Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Before: KEARSE, WESLEY, and CHIN, Circuit Judges.

Appeal from a judgment of the United States District Court for the

Southern District of New York (Forrest, J.) compelling arbitration of grievances

raised by plaintiffs‐appellees airlines in a dispute with the collective bargaining representatives of their pilots. The district court granted the airlinesʹ motion for

summary judgment and to compel arbitration, holding that (1) the partiesʹ

disputes are subject to mandatory arbitration; (2) the airlinesʹ motion to compel

arbitration was timely; and (3) the disputed issues raised by the management

grievances are arbitrable.

AFFIRMED.

JUDGE KEARSE partially dissents in a separate opinion.

EDWARD GLEASON (Franklin K. Moss, on the brief), Law Office of Edward Gleason PLLC, Washington, DC, and Spivak Lipton LLP, New York, New York, for Defendants‐Appellants.

ROBERT A. SIEGEL (Michael G. McGuinness and Sloane Ackerman, on the brief), OʹMelveny & Myers LLP, Los Angeles, California and New York, New York, for Plaintiffs‐Appellees.

CHIN, Circuit Judge:

This labor relations case arises from the merger of two commercial

airlines, plaintiffs‐appellees Atlas Air, Inc. (ʺAtlasʺ) and Southern Air, Inc.

(ʺSouthernʺ) (together, the ʺEmployersʺ). The Atlas and Southern pilots are

-2- represented by defendants‐appellants International Brotherhood of Teamsters

(ʺIBTʺ), International Brotherhood of Teamsters Airline Division (ʺIBTADʺ), and

Airline Professionals Association of the International Brotherhood of Teamsters,

Local Union No. 1224 (ʺLocal 1224ʺ) (collectively, the ʺUnionʺ). Following the

announcement of the merger, disagreements arose as to the integration of the

respective employees and operations, whether the Union was required to

negotiate a new joint collective bargaining agreement (ʺJCBAʺ) to cover both sets

of pilots, and whether the disagreements were to be resolved in arbitration or

before the National Mediation Board (the ʺNMBʺ).

After the parties failed to resolve their controversies, the Employers

commenced this action below to compel arbitration of the management

grievances. The district court granted the Employersʹ motion for summary

judgment and to compel arbitration and denied the Unionʹs motion for summary

judgment. On appeal, we hold that the district court properly granted the

Employersʹ motion for summary judgment and to compel arbitration.

Accordingly, the judgment of the district court is affirmed.

-3- BACKGROUND

I. The Facts

A. Labor Relations in the Airline Industry

The Railway Labor Act (the ʺRLAʺ), 45 U.S.C. § 151 et seq., regulates

labor relations in the airline industry. Hawaiian Airlines, Inc. v. Norris, 512 U.S.

246, 248 (1994) (citing 45 U.S.C. §§ 181‐188). The purpose of the RLA is to

prevent service interruptions in the transportation industries by encouraging

labor peace and avoiding strikes. See, e.g., CSX Transp., Inc. v. United Transp.

Union, 879 F.2d 990, 995 (2d Cir. 1989) (citing 45 U.S.C. § 151a and Detroit &

Toledo Shore Line R.R. v. UTU, 396 U.S. 142, 148 (1969)). The courtsʹ role in

ʺenforcing substantive obligations under the RLA is circumscribed by its unique

history and dispute‐resolution framework,ʺ and the statute sets forth ʺa unique

blend of moral and legal duties looking toward settlement through conciliation,

mediation, voluntary arbitration, presidential intervention, and, finally, in case of

ultimate failure of the statutory machinery, resort to traditional self‐help

measures.ʺ Air Line Pilots Assʹn, Intʹl v. Tex. Intʹl Airlines, Inc., 656 F.2d 16, 19‐20

(2d Cir. 1981) (internal quotation marks omitted).

-4- The RLAʹs dispute resolution mechanisms include mediation before

the NMB and binding arbitration before ʺadjustment boards.ʺ CSX Transp., 879

F.2d at 995‐97; accord W. Airlines, Inc. v. Intʹl Bhd. of Teamsters, 480 U.S. 1301, 1302

(1987). Adjustment boards are panels consisting of designated representatives of

the carrier and employees that resolve disputes arising under existing contracts

between labor groups and employers. See Intʹl Assʹn of Machinists v. Cent.

Airlines, Inc., 372 U.S. 682, 686 (1963); Ollman v. Special Bd. of Adjustment No. 1063,

527 F.3d 239, 246 (2d Cir. 2008). As explained more fully below, the mechanism

that the parties must use to resolve a controversy depends on the type of dispute

between the parties, i.e., whether the dispute is a ʺmajor,ʺ ʺminor,ʺ or

ʺrepresentationʺ dispute. See CSX Transp., 879 F.2d at 995‐98; Air Line Pilots

Assʹn, 656 F.2d at 20 n.6. Major and representation disputes fall within the

exclusive jurisdiction of the NMB, while minor disputes must be arbitrated

before an adjustment board. See CSX Transp., 879 F.2d at 995‐98; Air Line Pilots

Assʹn, 656 F.2d at 20 n.6.

B. The Parties

Atlas is a commercial air carrier and wholly owned subsidiary of

Atlas Air Worldwide Holdings, Inc. (ʺAAWHʺ). Atlas is party to a collective

-5- bargaining agreement (the ʺAtlas CBAʺ) that governs the pay, rules, and working

conditions of the Atlas pilots. The Atlas CBA also covers another AAWH

subsidiary, Polar Air Cargo Worldwide, Inc. (ʺPolarʺ), which is not a party to this

action. The Atlas CBA became effective on September 8, 2011 and became

amendable ‐‐ or open for further negotiation ‐‐ on September 8, 2016.

In April 2016, AAWH acquired Southern Air Holdings, Inc., the

parent of Southern, making Southern a subsidiary of AAWH. Southern is party

to a collective bargaining agreement (the ʺSouthern CBAʺ) that governs the pay,

rules, and working conditions of the Southern pilots. The Southern CBA became

effective on November 6, 2012 and amendable on November 6, 2016.

IBT is the certified collective bargaining representative of the Atlas

and Southern pilots under the RLA. IBTAD is a party to both the Atlas CBA and

the Southern CBA. IBTAD, through IBT, has designated Local 1224 as the local

collective bargaining agent for the Atlas and Southern pilots.

C. The Collective Bargaining Agreements

1. Atlas

The Atlas CBA recognizes Atlas and Polar as ʺa single Air Carrier

collectively referred to as the ʹCompany.ʹʺ Id. at 38. Pursuant to a 2011

-6- arbitration award, AAWH is not subject to the Atlas CBAʹs ʺscope provisions,ʺ

which relate to the scope of covered work, job security, and labor protections in

the event of certain corporate transactions. Under the Atlas CBA, the partiesʹ

obligation to ʺmerge the two pre‐integration collective bargaining agreements

into one agreement,ʺ id. at 44‐45 (Section 1.F.b.iii), that is, to negotiate a JCBA, is

triggered by the following conditions:

(i) the Company acquires another air carrier and the Company decides there will be a complete operational merger between the Company and such other air carrier, or if the Company notifies the Union of its intent to integrate the Crewmember seniority lists of the respective carriers, or (ii) in the event the Company decides there will be a complete operational merger between the Company and an affiliated air carrier, or if the Company notifies the Union of its intent to integrate the Crewmember seniority lists of the Company and an affiliated air carrier . . . [and] the crewmembers of the acquired carrier are represented by the Union.

Id. at 43‐44 (Section 1.F.2).

The parties have nine months to execute a JCBA from the date the

Union presents the Company with a merged seniority list. If the parties are

unable to agree on the terms of a JCBA, the parties must submit the outstanding

issues to binding interest arbitration within thirty days of the conclusion of

negotiations contemplated by the Atlas CBA.

-7- Section 21 of the Atlas CBA provides that the System Board of

Adjustments (the ʺAtlas Boardʺ) ʺshall have jurisdiction over all disputes

between . . . the Company and the Union, growing out of the interpretation or

application of any of the termsʺ of the Atlas CBA. Id. at 24. In addition, Section

1.H.1 of the Atlas CBA states that ʺ[a]ny grievance filed by the Company or

Union alleging a violation of Section 1 shall bypass the initial steps of the

grievance process and shall be submitted, heard, and resolved through binding

arbitration on an expedited basis directly before the [Atlas Board].ʺ Id. at 46.

2. Southern

The Southern CBA provides that

[i]n the event of a merger between the Company and any other company or business that employ crewmembers of aircraft, there shall be an integration of the two crewmember groups . . . . A ʺmergerʺ as used in this Section, shall refer to a transaction in which the functional departments of the Company (e.g., operations, marketing, finance, human resources, etc.) are integrated with those of another certificated air carrier employing crewmembers . . . .

In the event of a merger, this Agreement shall be merged with the merging air carrierʹs crewmember collective bargaining agreement, if any; if such merged agreement is not completed within nine (9) months from the date an integrated Master Seniority List is submitted to the surviving entity, the parties shall submit all outstanding issues to binding interest arbitration.

-8- Id. at 54 (Sections 1.B.2‐3).

Section 19(D)(2) of the Southern CBA also establishes a System

Board of Adjustment (the ʺSouthern Boardʺ) and provides that the Southern

Board ʺshall have jurisdiction over disputes growing out of grievances or out of

the interpretation of application of any termsʺ of the agreement. Id. at 34.

D. The Management Grievances

On January 19, 2016, AAWH announced its intent to merge the

operations of Atlas and Southern. Both Atlas and Southern took the view that

the parties were then required to negotiate a JCBA covering both companiesʹ

pilots in accord with Sections 1.F and 1.B of their respective collective bargaining

agreements. The Union disagreed, taking the position that Atlas and Southern

were required to engage in separate negotiations to amend each companyʹs

individual collective bargaining agreement.

On April 13, 2016, the Union filed an application with the NMB

pursuant to Sections 5 and 6 of the RLA for mediation of the dispute. The NMB

acknowledged the Unionʹs application by letter dated April 19, 2016, advising

that the NMB would ʺinvestigate the complexity of issues associated with this

-9- application prior to beginning any mediation sessions,ʺ and that the application

had been docketed. Id. at 208‐09.

The next day, April 14, 2016, Atlas filed a management grievance

(the ʺAtlas grievanceʺ) with the Atlas Board pursuant to Section 204 of the RLA

and Section 1.H of the Atlas CBA for expedited grievance arbitration. Atlas

requested that the Atlas Board decide whether the Union was ʺ[in] violati[on of]

Section 1.F.2.b.iii of the Atlas‐IBT CBA by refusing to engage in negotiations for a

[JCBA] pursuant to the terms and conditions set forth therein in light of the

announced operational merger of Atlas and Southern Air, Inc.?ʺ Id. at 47. The

Union responded, by letter dated April 20, 2016, that stated:

the purported management grievance is intricately related to, and indeed dependent upon, the resolution of RLA statutory issues underlying our dispute, including issues relating to the NMBʹs jurisdiction and pending investigation, the Companyʹs obligations under 45 U.5.C. § 152, First and 45 U.S.C. § 156, and its obligations under 45 U.S.C. §§ 155 and 156. As you know, the System Board lacks jurisdiction to address matters arising outside the contract, including the statutory issues involved in the purported management grievance. It is inappropriate for the Company to attempt to vest the System Board with jurisdiction that it does not have. The purported grievance is, therefore, invalid and not arbitrable.

- 10 - Finally, we look forward to an amicable resolution of our dispute through consensual negotiations, as provided for under the RLA.

Id. at 135 (emphasis added).

Subsequently, the parties engaged in ongoing discussions

concerning a proposed JCBA that would cover the Atlas, Polar, and Southern

pilots. By example, the parties met on May 10, 2016 to discuss the dispute. At

the meeting, Atlas proposed that ʺit was willing to remove the scope clause,ʺ

Section 1.B of the Atlas CBA, ʺfrom the Section 1.F interest arbitration process,

and instead bargain for a mutually acceptable scope clause in advance of the

Section 1.F process.ʺ Id. at 152. IBT indicated that it would consider Atlasʹs

compromise proposal, and ʺon that basis, the Company temporarily deferred

pursuing arbitration on the management grievance pending a response from the

IBT.ʺ Id.

On July 14, 2016, IBT rejected Atlasʹs compromise proposal and sent

Atlas an email that provided ʺa discussion draft of [its] proposal on how to

proceed with negotiations.ʺ Id. at 136; see id. at 78. Attached to IBTʹs email was a

thirteen‐page draft of a proposed letter of agreement (ʺLOAʺ), detailing how the

parties might proceed to negotiate a JCBA. Significantly, the proposed letter

- 11 - agreement included the following language: ʺWhile this LOA remains in effect

. . . Parties agree to suspend/toll/defer their dispute relating to the management

grievance.ʺ Id. at 139. In addition, the proposal included terms relating to

arbitration.

Atlas responded with a counter‐proposal on August 12, 2016, and

IBT responded by letter dated September 2, 2012. IBTʹs response stated the

following:

Despite our concerns relating to your failure to adhere to our mutually agreed‐upon ground rules relating to our settlement discussions and refusal of our previous settlement offers on a path to an equitably negotiated CBA, we continue to believe that it is in everyoneʹs best interest to find an amicable, expeditious resolution of our dispute. It is for this reason that we remain ready, willing and able to meet with you and your colleagues in a further effort to resolve our dispute. Accordingly, please advise us at your earliest convenience whether you and your colleagues share our desire to meet again in an effort to amicably resolve our dispute. If you do, please also provide us with your available dates, times and locations so that we can schedule a follow‐up meeting.

Id. at 156 (emphasis added). Following that exchange, the parties continued to

negotiate whether and on what terms they could negotiate a JCBA or amend the

Atlas CBA. Those discussions effectively ended in February 2017.

- 12 - 2. Southern

The Union filed an application for mediation with the NMB as to its

dispute with Southern on January 10, 2017, docketed the next day, to which

Southern objected in a January 24, 2017 letter to the NMB. On January 24, 2017,

Southern filed its own management grievance (the ʺSouthern grievanceʺ) with

the Southern Board against the Union asserting a violation of Section 1.B.3 of the

Southern CBA. By letter dated February 8, 2017, the Union responded that the

Southern grievance was ʺnonarbitrableʺ and that the Union ʺlook[ed] forward to

an amicable resolution of our dispute through consensual negotiations.ʺ Id. at

197.

II. Proceedings Below

Atlas and Southern commenced this action on February 7, 2017. The

same day, they moved for summary judgment and to compel arbitration,

arguing that the disputes over the interpretation of the Atlas CBA and the

Southern CBA were minor disputes within the meaning of the RLA, and thus

subject to mandatory arbitration before the Atlas Board and Southern Board. On

July 20, 2017, the Union moved to dismiss the action. The district court

converted the Unionʹs motion to dismiss to a cross‐motion for summary

- 13 - judgment. On March 13, 2018, the district court issued an opinion granting

summary judgment in favor of the Employers, compelling arbitration, and

denying the Unionʹs cross‐motion for summary judgment.

Judgment was entered accordingly, and this appeal followed.

DISCUSSION

We review a district courtʹs grant of summary judgment de novo

ʺwhere . . . the parties filed cross‐motions for summary judgment and the district

court granted one motion[] but denied the other.ʺ BWP Media USA Inc. v.

Polyvore, Inc., 922 F.3d 42, 47 (2d Cir. 2019) (per curiam); Morales v. Quintel

Entmʹt, Inc., 249 F.3d 115, 121 (2d Cir. 2001). Summary judgment is proper if

ʺthere is no genuine issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law.ʺ Rubens v. Mason, 527 F.3d 252, 254 (2d

Cir. 2008) (quoting Fed. R. Civ. P. 56(c)). We similarly review the grant of a

motion to compel arbitration de novo. Katz v. Cellco Pʹship, 794 F.3d 341, 344 n.4

(2d Cir. 2015); Abram Landau Real Estate v. Bevona, 123 F.3d 69, 72 (2d Cir. 1997).

On appeal, the Union principally contends that (1) the district court

lacked subject matter jurisdiction over the action because the dispute was

docketed by the NMB and the issues raise a representation dispute within the

- 14 - exclusive jurisdiction of the NMB; (2) Atlasʹs motion to compel is untimely

because it was filed more than six months after the Unionʹs April 20, 2016 letter

stating that the Atlas grievance was not arbitrable; and (3) the issues raised in the

dispute are not arbitrable. We discuss each argument in turn.

I. Jurisdiction over the Dispute

The Union argues that the NMB has exclusive jurisdiction over the

dispute, and therefore the district court lacks subject matter jurisdiction over the

Employersʹ claim, because (1) the Union filed a mediation application that was

docketed by the NMB and (2) the claim is a representation dispute. We discuss

each issue in turn.

A. Applicable Law

As noted, whether the parties must mediate before the NMB or

submit their claims to binding arbitration depends on whether the dispute is a

major, minor, or representation dispute. See, e.g., CSX Transp., 879 F.2d at 995‐98;

Air Line Pilots Assʹn, 656 F.2d at 20 n.6.

Major disputes relate to disputes involving the ʺformation of

collective agreements or efforts to secure them.ʺ CSX Transp., 879 F.2d at 995

(quoting Elgin, J. & E. Ry. v. Burley, 325 U.S. 711, 723 (1945)). These types of

- 15 - disputes arise ʺwhere 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.ʺ Id. (internal quotation marks omitted). Carriers or

unions may attempt to resolve a major dispute by providing thirty daysʹ written

notice ʺof an intended change in agreements affecting rates of pay, rules or

working conditionsʺ pursuant to Section 6 of the RLA. Id. at 996 (quoting 45

U.S.C. § 156). If the parties fail to reach an agreement via mandatory

negotiations, either party may request mediation by the NMB. Id. Where the

NMB ʺdetermines after mediation that the parties have reached an impasse, the

NMB must ʹendeavor . . . to induce the parties to submit their controversy to

[consensual] arbitration.ʹʺ Id. (quoting 45 U.S.C. § 155). Absent voluntary

arbitration, the parties must maintain the status quo and ʺcool offʺ for thirty days

before resorting to economic self‐help such as a strike by the union or unilateral

changes to the terms and conditions of employment by the carrier. Id.

Alternatively, the NMB may refer an unresolved major dispute of sufficient

importance to the President for further proceedings, during which time the

parties must maintain the status quo. See id.

- 16 - Minor disputes refer to disputes involving existing collective

bargaining agreements where the parties challenge ʺeither . . . the meaning or

proper application of a particular provision with reference to a specific situation

or to an omitted case.ʺ Id. at 995 (internal quotation marks omitted). ʺA dispute

will be considered minor . . . if the contract is reasonably susceptible to the

carrierʹs interpretation.ʺ Id. at 997 (internal quotation marks omitted). The

carrierʹs burden is ʺrelatively lightʺ in this regard. Id. at 999; accord Consol. Rail

Corp. v. Ry. Labor Execs.ʹ Assʹn, 491 U.S. 299, 307 (1989).

After initial attempts to negotiate the resolution of a minor dispute,

a party ʺmay submit the dispute for resolution through binding arbitration to the

National Railroad Adjustment Board (ʺNRABʺ) . . . or to other boards of

adjustment upon which the parties agree.ʺ CSX Transp., 879 F.2d at 997 (citations

omitted). The resolution of minor disputes is within the exclusive jurisdiction of

the appropriate adjustment board, and courts cannot adjudicate the merits of the

dispute. Id. at 1003; Bhd. of Locomotive Engʹrs Div. 269 v. Long Island R.R. Co., 85

F.3d 35, 37 (2d Cir. 1996) (ʺIf a dispute is characterized as minor, a court cannot

assert jurisdiction over the action nor can the parties seek judicial remedies such

as an injunction.ʺ). Even though a district court is not authorized under the RLA

- 17 - to resolve the merits of a minor dispute, including interpreting the terms of a

collective bargaining agreement, it may compel arbitration of a minor dispute.

W. Airlines, 480 U.S. at 1302.

ʺʹRepresentationʹ disputes involve defining the bargaining unit and

determining the employee representative for collective bargaining.ʺ Id. ʺWhere a

representation dispute appears on the face of the complaint, even in the absence

of a challenge by a competing union or an application to the NMB, the court is

bound to dismiss the action.ʺ Air Line Pilots Assʹn, 656 F.2d at 24; accord W.

Airlines, 480 U.S. at 1302‐03. To resolve a representation dispute, ʺ[t]he NMB

must, upon the request of either party, investigate the representation dispute and

certify within 30 days the representative of the craft or class of employees in

question.ʺ Air Line Pilots Assʹn, 656 F.2d at 20 n.6.

B. Application

1. Docketing of Application

The Union argues that the NMB has exclusive jurisdiction over the

partiesʹ dispute simply because it docketed the Unionʹs application for

mediation. As we have explained, however, the NMBʹs jurisdiction over labor

disputes turns on whether the partiesʹ disagreement is a major, minor, or

- 18 - representation dispute within the meaning of the RLA. Docketing is merely an

administrative act, acknowledging the filing of a petition. See Atlas Air, Inc. v.

Intʹl Bhd. of Teamsters, 293 F. Supp. 3d 457, 468 n.14 (S.D.N.Y. 2018) (ʺCourts

routinely ʹdocketʹ cases as an administrative matter before determining whether

they have jurisdiction or not.ʺ). Moreover, the NMB did not address the merits

of the Unionʹs petition, nor did it determine whether the Union was raising a

major, minor, or representation dispute. Hence, the NMBʹs docketing of the

Unionʹs mediation application by itself does not deprive the district court of

subject matter jurisdiction. See Air Line Pilots Assʹn, 656 F.2d at 24; In re Am. Train

Dispatchers Assʹn, 43 N.M.B. 71, 82 (Feb. 23, 2016) (dismissing action for lack of

jurisdiction after assigning docket number); In Re N.C. State Ports Auth. & N.C.

Ports Ry. Commʹn, 9 N.M.B. 398, 409‐10 (June 8, 1982) (same); cf. Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000) (ʺA case is properly dismissed for

lack of subject matter jurisdiction . . . when the district court lacks the statutory

or constitutional power to adjudicate it.ʺ).

- 19 - 2. Type of Dispute

The NMB has jurisdiction over a case if it concerns a major dispute

or a representation dispute. See W. Airlines, 480 U.S. at 1302‐03; CSX Transp., 879

F.2d at 996. The instant case does not.

As a preliminary matter, the management grievances do not involve

a major dispute. The parties are subject to existing, albeit amendable, collective

bargaining agreements that govern the pay, rules, and working conditions of the

Atlas and Southern pilots. The disputes here relate to whether the Union is in

violation of those collective bargaining agreements by refusing to negotiate a

JCBA. Bhd. of Maint. of Way Employes Div. v. Burlington N. Santa Fe Ry. Co., 596

F.3d 1217, 1222‐23 (10th Cir. 2010) (ʺThe distinguishing feature of [a minor

dispute] is that the dispute may be conclusively resolved by interpreting the

existing agreementʺ and ʺ[t]he essence of the inquiry is whether the source of a

partyʹs asserted legal right is its collective bargaining agreement.ʺ (quoting

Consol. Rail Corp., 491 U.S. at 305)).

On its face, the Atlas CBA is ʺreasonably susceptible to [Atlasʹs]

interpretationʺ that the announcement of an operational merger between Atlas

and Southern triggered Section 1.F. and Section 1.B of the collective bargaining

- 20 - agreements. CSX Transp., 879 F.2d at 997 (internal quotation marks omitted).

Both agreements contain language governing the negotiation of a JCBA

following certain conditions such as a decision to complete an operational

merger with an affiliated air carrier or notification of an intent to integrate

seniority lists. Both collective bargaining agreements then establish adjustment

boards with mandatory jurisdiction over all disputes concerning the

interpretation or application of any terms of those agreements. J. Appʹx at 24

(Section 21); id. at 34 (Section 19(D)(2)). In turn, Atlas and Southernʹs

management grievances question whether the existing merger provisions of their

collective bargaining agreements have been triggered by the decision to join

Atlas and Southern, and whether the Union is in violation of the agreements.

In contrast, the Unionʹs refusal to arbitrate the Atlas grievance is

based on its view that ʺCompanyʺ in the Atlas CBA refers only to Atlas and

Polar, and that by virtue of a prior arbitratorʹs decision to exclude AAWH from

the scope provisions of the Atlas CBA, AAWH is not bound by the Atlas CBA.

As pleaded, the Employersʹ argument that the Union violated Section 1 of the

collective bargaining agreements and is subject to binding arbitration is

ʺplausibleʺ or at least ʺnot obviously insubstantial,ʺ and the district court was

- 21 - under no obligation to ʺweigh[] and decide who has the better of the argument.ʺ

CSX Transp., 879 F.2d at 999; see also Consol. Rail Corp., 491 U.S. at 305 (ʺTo an

extent, then, the distinction between major and minor disputes is a matter of

pleadingʺ and ʺ[t]he party who initiates a dispute takes the first step toward

categorizing the dispute when it chooses whether to assert an existing

contractual right to take.ʺ). Such contract interpretation issues are the hallmark

of a minor dispute and thus subject to mandatory resolution by the appropriate

adjustment boards. See Air Line Pilots Assʹn, Intʹl v. Guilford Transp. Indus., Inc.,

399 F.3d 89, 99 (1st Cir. 2005) (ʺ[I]f a dispute involves two reasonable but

competing interpretations of the partiesʹ rights under a CBA, the dispute is not

major.ʺ). Accordingly, the management grievances involve a minor dispute, and

the district court did not err in exercising jurisdiction over the Employersʹ motion

to compel arbitration of the management grievances.

The Union also frames the dispute as a representation dispute

concerning whether Atlas and Polar or Atlas and Southern constitute a single

carrier for representation purposes. The Union, however, already represents

both Atlas and Southern pilots, and the collective bargaining agreements

between them contemplate the partiesʹ obligations when a merger occurs

- 22 - between carriers represented by the same union. See Guilford Transp. Indus., 399

F.3d at 105 n.11 (recognizing that union did not raise representation dispute

within exclusive jurisdiction of NMB because union had not asserted right to

represent employees not covered by collective bargaining agreement); Assʹn of

Flight Attendants v. United Airlines, Inc., 71 F.3d 915, 919 (D.C. Cir. 1995) (holding

controversy did not concern a representation dispute in case where ʺboth groups

of employees are represented by the [union] so there is no question as to the

identity of the exclusive representativeʺ); CSX Transp., 879 F.2d at 996 (ʺIt is a

minor dispute if there is a clearly governing provision in the present agreements,

although its precise requirements are ambiguousʺ (quoting Rutland Ry. Corp. v.

Bhd. of Locomotive Engʹrs, 307 F.2d 21, 33‐34 (2d Cir. 1962)). In these

circumstances, we reject the Unionʹs argument that the case raises issues of

representation that would fall within the exclusive jurisdiction of the NMB.

II. Statute of Limitations

The Union also argues that the Atlas grievance ‐‐ but not the

Southern one ‐‐ is barred because Atlasʹs February 7, 2017 motion to compel

arbitration was untimely. J. Appʹx at 134‐35. We disagree.

- 23 - A. Applicable Law

The statute of limitations applicable to a motion to compel

arbitration under the RLA is an open question in this Circuit. The text of the

RLA does not prescribe a statute of limitations for such a motion. ʺWhen a

federal statute fails to specify a limitations period,ʺ we typically look to state law

for ʺthe most analogous periodʺ to apply. Robinson v. Pan Am. World Airways,

Inc., 777 F.2d 84, 86 (2d Cir. 1985) (citing DelCostello v. Intʹl Bhd. of Teamsters, 462

U.S. 151, 158 (1983)). Where the statute concerns substantive matters of federal

labor law, however, we have held that the state limitations period may give way

to a limitations period borrowed from comparable federal statutes. Id.; Welyczko

v. U.S. Air, Inc., 733 F.2d 239, 241 (2d Cir. 1984).

Courts have applied the six‐month limitations period for unfair

labor practice claims under Section 10(b) of the National Labor Relations Act (the

ʺNLRAʺ), 29 U.S.C. § 160(b), to other claims between unions and employers

governed by comparable labor law statutes. See, e.g., DelCostello, 462 U.S. at 168‐

72 (applying NLRAʹs six‐month limitations period to Labor Management

Relations Act (ʺLMRAʺ) claims). We have also looked to the NLRA to determine

the limitations period applicable to other labor law claims arising under the RLA.

- 24 - See Robinson, 777 F.2d at 88 (applying NLRAʹs six‐month limitations period to

claim for wrongful discharge under RLA). Moreover, we have held that ʺthe six‐

month statute of limitations under Section 10(b) of the [NLRA] applies to actions

to compel a labor arbitrationʺ under the LMRA. Associated Brick Mason

Contractors of Greater N.Y., Inc. v. Harrington, 820 F.2d 31, 37 (2d Cir. 1987).

In Harrington, we determined that the six‐month limitations period

should be applied to motions to compel arbitration of disputes under the LMRA

because of the need for: (1) ʺprompt resolution of grievances;ʺ (2) ʺʹproper

balance between the national interests in stable bargaining relationships and

finality of private settlements,ʹ . . . and a partyʹs interest in invoking the arbitral

process under the collective bargaining system;ʺ and (3) uniformity of statutes of

limitations for grievances involving conduct that may also constitute an unfair

labor practice under the NLRA. Id. at 37 (internal citation omitted). These same

considerations apply to the transportation industries and therefore to motions to

compel arbitration under the RLA. Accordingly, as the parties agree, we now

hold that motions to compel arbitration of disputes governed by the RLA are

subject to a six‐month statute of limitations.

- 25 - The next question is when a cause of action to compel arbitration

accrues. As we have recognized, ʺit is well established that a cause of action to

compel arbitration accrues when a party unequivocally refuses a demand to

arbitrate.ʺ Id. at 38; accord Schweizer Aircraft Corp. v. Local 1752, Intʹl Union, United

Auto., Aerospace & Agr. Implement Workers of Am., 29 F.3d 83, 87 (2d Cir. 1994).

Equivocality turns on the factual circumstances in each case. Diamond D Const.

Corp. v. Intʹl Union of Operating Engʹrs, Local Unions No. 17, 17A, 17B, 17C & 17R,

15 F. Supp. 2d 274, 289 (W.D.N.Y. 1998) (ʺ[T]he particular circumstances of each

case control the ʹunequivocal refusalʹ inquiry.ʺ).

At minimum, a flat refusal to arbitrate without further inquiry or

discussion of the dispute is sufficiently unequivocal. See Schweizer, 29 F.3d at 87.

In Schweizer, we considered the unionʹs counterclaim, filed one month after

employerʹs petition to stay the arbitration, to be timely because it was the

employerʹs ʺonly unequivocal refusal to arbitrate.ʺ Id. Importantly, there was no

mention of any attempt to resolve the underlying dispute from the time of the

unionʹs demand for arbitration, made February 2, 1993, to the date that the

employer filed the petition to stay arbitration, February 19, 1993. Id. at 84‐87.

Similarly, in Communications Workers of America v. Western Electric Company, there

- 26 - was no discussion of intervening activity amongst the parties that followed the

employerʹs ʺimmediate, blunt, and to the pointʺ replies that it considered its

dispute with the union ʺnon‐arbitrable.ʺ 860 F.2d 1137, 1145 (1st Cir. 1988)

(hereinafter ʺCWAʺ). Accordingly, the First Circuit concluded in that case that

the statement was an unequivocal refusal to arbitrate that commenced the statute

of limitations. Id.

By contrast, non‐responses or equivocal statements do not cause the

statute of limitations to run. See I.B.E.W. Sys. Council U‐7 v. N.Y. State Elec. & Gas

Corp., 180 F.3d 368, 370 (2d Cir. 1999) (per curiam) (holding that there was no

unequivocal refusal to arbitrate where party ʺsimply announced the status of the

arbitration proceeding,ʺ and nothing indicated that it would refuse to arbitrate if

asked); Local Joint Exec. Bd. of Las Vegas, Bartenders Union Local 165, Culinary

Workersʹ Local Union No. 226 v. Exber, Inc., 994 F.2d 674, 676 (9th Cir. 1993)

(holding that constructive notice of refusal to arbitrate was insufficient, and

ʺ[b]ecause the Union never received from the employer an unequivocal, express

refusal of its demand to arbitrate, the statute of limitations never commenced

runningʺ); Aluminum Brick & Glass Workers Intʹl Union v. AAA Plumbing Pottery

Corp., 991 F.2d 1545, 1548 (11th Cir. 1993) (holding that the motion to compel

- 27 - arbitration was timely because the employerʹs statements that ʺIʹm sure you will

agree that the matter is closedʺ and ʺI . . . would be interested to see what the

Unionʹs position isʺ were equivocal).

In certain cases, whether a party has made an unequivocal refusal to

arbitrate has not been clear; and at least one court has questioned whether mere

formalities, such as a petition to stay arbitration, or an initial refusal to arbitrate

absent ʺ[u]nambiguous conductʺ to the same effect, ʺrise to the level of an

unequivocal refusalʺ to arbitrate. Diamond, 15 F. Supp. 2d at 289. The district

courts in our circuit have not resolved this question uniformly. Compare id.

(ʺ[T]his court believes that the unequivocal refusal standard does not turn on

whether the party resisting arbitration has filed a petition to stay arbitration or

has uttered the magic words ʹwe refuse to arbitrate this dispute.ʹʺ), with Raymond

v. Mid‐Bronx Haulage Corp., No. 15‐cv‐5803, 2017 WL 9882601, at *3 (S.D.N.Y. June

10, 2017) (ʺTo the contrary, courts require ʹclearʹ and ʹexpressʹ conduct, such as a

motion to stay arbitration procedures or an explicit objection to arbitration

proceedings, before finding an unequivocal refusal to arbitrate.ʺ), and Hotel

Greystone Corp. v. N.Y Hotel & Motel Trades Council, 902 F. Supp. 482, 485

(S.D.N.Y. 1995) (holding motion to stay arbitration, and not earlier letter

- 28 - objecting to arbitratorʹs reconsideration of the award, was unequivocal refusal to

arbitrate because hotel continued to contest jurisdiction and merits and

participated in hearing before arbitrator).

When a partyʹs refusal to arbitrate does not fall neatly into the

equivocal or unequivocal classifications, some courts have resolved the inquiry

by evaluating the partiesʹ conduct following the refusing partyʹs initial

communication. See Teamsters Local Union No. 783 v. Anheuser‐Busch, Inc., 626

F.3d 256, 259‐60 (6th Cir. 2010); Intʹl Union v. Cummins, Inc., 434 F.3d 478, 485 (6th

Cir. 2006); Fedʹn of Westinghouse Indep. Salaried Unions v. Westinghouse Elec. Corp.,

736 F.2d 896, 898‐99 (3d Cir. 1984). We agree that in some circumstances a partyʹs

initial refusal to arbitrate can be rendered equivocal by the partiesʹ subsequent

statements and actions.

For example, in Westinghouse, the Third Circuit remanded the case

for the district court to resolve whether a companyʹs earlier statement that ʺ[t]his

dispute is not subject to demand arbitration and the Company is unwilling to

process the grievance into arbitration by special agreementʺ was rendered

equivocal by its subsequent statement that, ʺ[w]hile [it] continue[d] to believe

that the dispute [was] not arbitrable . . . , it would be willing to proceed to

- 29 - arbitration by mutual agreement in this particular case, providing there is

agreement as to the matter to be decided by an arbitrator.ʺ 736 F.2d at 898‐99

(first alteration in original). In some circumstances, then, a party resisting

arbitration does not meet the standard of unequivocal refusal where an initial,

express refusal is followed by statements expressing some willingness to

arbitrate.

Likewise, the Sixth Circuit concluded that an employer had not

unequivocally refused to arbitrate where it stated that it was ʺʹsurprisedʹ that the

Union was still pursuing the grievance because [it] assumed that the Union had

dropped the matter,ʺ the grievance was ʺnot arbitrable,ʺ and the union should

provide legal authority for its position. Cummins, 434 F.3d at 483. The court

reasoned that while the employer initially stated that the grievance was not

arbitrable, ʺits subsequent conduct . . . suggested that it was still open to

negotiatingʺ and the letter ʺstat[ing] the grievance was not arbitrable without

requesting further information from the Union . . . [wa]s the date when [the

employerʹs] refusal to arbitrate became unequivocal.ʺ Id. at 485; see also Teamsters

Local Union No. 783, 626 F.3d at 259‐60 (holding that ʺ[a] statement that a

grievance is not arbitrable, which simultaneously requests additional

- 30 - information, does not amount to an unequivocal position that the employer will

not arbitrate,ʺ and unionʹs claim was not time‐barred where employerʹs

communications sought additional information but lacked indication that

ʺnegotiation or settlement was not feasibleʺ). We agree that notwithstanding an

initial refusal to arbitrate, a partyʹs refusal to arbitrate can be rendered equivocal

by conduct showing that it is willing to negotiate the merits or arbitrability of the

underlying dispute.

The Employersʹ February 2017 motion to compel arbitration is

timely because the Unionʹs initial refusal to arbitrate was rendered equivocal by

its subsequent participation in negotiations with Atlas to create a JCBA or to

arbitrate the dispute.

To begin with, the parties contest whether the Unionʹs April 20, 2016

letter, which claimed that the management grievance was ʺfacially invalidʺ and

ʺnot arbitrable,ʺ J. Appʹx at 134‐35, constituted an unequivocal refusal to

arbitrate. There is some ambiguity, as the Union stated that the Employersʹ

grievances were invalid and not arbitrable at the same time it noted that it was

ʺlook[ing] forward to an amicable resolution of [the] dispute through consensual

- 31 - negotiations.ʺ Id. at 135. The Unionʹs indication that it was open to consensual

negotiations arguably softened its position that the Atlas grievance was not

arbitrable. As in Teamsters Local Union No. 783, there was no clear signal that

ʺnegotiation or settlementʺ of the issue in dispute ʺwas not feasible.ʺ 626 F.3d at

260. A statement of the Unionʹs view on arbitrability followed by an invitation to

negotiate the merits of the dispute could reasonably be construed as a statement

of its initial position rather than an unequivocal refusal to arbitrate. See

Aluminum Brick, 991 F.2d at 1548.

We need not decide, however, the close question of whether the

April 20 letter constituted an unequivocal refusal to arbitrate. Assuming,

without deciding, that it did, the Unionʹs participation in ensuing efforts to

resolve the dispute rendered its initial refusal equivocal. For example, on May

20, 2016, the parties met to discuss, inter alia, interest arbitration. The Union

indicated that it would consider Atlasʹs proposal to narrow the scope of

arbitration, and in exchange, ʺ[Atlas] temporarily deferred pursuing arbitration

on the management grievance pending a response from the IBT.ʺ J. Appʹx at 78.

Thus, as in Westinghouse, Atlasʹs restraint in pursuing its management grievance

was predicated on the Unionʹs willingness to arbitrate at least some issues,

- 32 - including displacing the scope clause and negotiating a JCBA ‐‐ the very issues

that Atlas sought to resolve by way of its management grievance.

Later, in the LOA proposed on July 14, 2016, IBT suggested a

suspension, tolling, or deferral of the dispute relating to the Atlas grievance.

Until the breakdown in negotiations, the parties continued to indicate a

willingness to resolve the dispute by coming to terms on a JCBA while the Atlas

grievance remained pending. Both the Union and Atlas thus recognized that

negotiating a JCBA would moot the issues that formed the basis of the Atlas

grievance.

IBT engaged in negotiations and discussions that, if successful,

would have obviated the need for arbitration. Indeed, these discussions

included the possibility of arbitration in the event the negotiations and

discussions were not successful. Moreover, throughout the discussions, Atlas

consistently reserved all rights (as did IBT). As the Third Circuit held in

Cummins, we agree that ʺthe employer must essentially determine that

negotiation or persuasion is not feasible before the statute of limitations will

begin to run.ʺ 434 F.3d at 484. Atlas did not make that determination until

negotiations stalled in February 2017, and then it promptly filed this action.

- 33 - Finally, we note that one of the principal purposes of the RLA is ʺto

encourage use of the nonjudicial processes of negotiation, mediation and

arbitration for the adjustment of labor disputes.ʺ Aircraft Serv. Intʹl, Inc. v. Intʹl

Bhd. of Teamsters, 779 F.3d 1069, 1079 (9th Cir. 2015) (quoting Bhd. of R.R.

Trainmen, Enter. Lodge, No. 27 v. Toledo, P. & W. R. R., 321 U.S. 50, 58 (1944)). By

filing its motion to compel only after it became clear that the Unionʹs refusal to

arbitrate was unequivocal, Atlas acted in accordance with the spirit of the RLA.

Accordingly, we agree with the district court that Atlasʹs motion to compel

arbitration of its management grievance was timely.

III. Arbitrability of the Employersʹ Grievances

Finally, the Union raises three arguments with respect to the

arbitrability of the Employersʹ management grievances: (1) the Southern CBA

does not permit the employer to file a grievance that could be the basis of

arbitration; (2) the Atlas grievance is not arbitrable because AAWH, and not the

Company, initiated the merger so that the obligation to negotiate a JCBA has not

been triggered; and (3) the adjustment board of one air carrier cannot exercise

authority over the pilots of the other.

- 34 - A. Applicable Law

Arbitrability concerns ʺwhether a particular dispute is to be

arbitrated under the terms of the contract.ʺ Metro. Life Ins. Co. v. Bucsek, 919 F.3d

184, 190 (2d Cir. 2019). Courts must decide whether a collective bargaining

agreement requires the parties to arbitrate a grievance unless the agreement

provides otherwise. AT & T Techs., Inc. v. Commcʹns. Workers of Am., 475 U.S. 643,

649 (1986) (ʺUnder our decisions, whether or not the company was bound to

arbitrate, as well as what issues it must arbitrate, is a matter to be determined by

the Court on the basis of the contract entered into by the parties.ʺ (internal

quotation marks omitted)); Collins & Aikman Prods. Co. v. Bldg. Sys., Inc., 58 F.3d

16, 19 (2d Cir. 1995) (ʺ[F]ederal law does not require parties to arbitrate when

they have not agreed to do so.ʺ (internal quotation marks omitted)). Determining

arbitrability, however, does not permit courts to address the merits of the

underlying claims. AT & T, 475 U.S. at 650.

The Unionʹs three arguments as to the arbitrability of the Employersʹ

management grievances fail.

- 35 - First, Southern is permitted to unilaterally file a grievance with the

Southern Board. While the Union argues that the Southern CBA only provides

for grievances filed by the Union, that authorization is permissive in that the

ʺUnion may fileʺ a grievance, J. Appʹx at 32, 34; the agreement does not expressly

prohibit Southern from filing grievances, cf. Bhd. of Maint., 596 F.3d at 1224

(ʺContractual silence can be construed as a reservation to the employer of the

right to act unilaterally.ʺ (internal quotation marks omitted)). In any event, the

Southern CBA gives the Southern Board mandatory authority ʺover disputes

growing out of grievances or out of the interpretation of application of any of the

termsʺ of the agreement. J. Appʹx at 34. That provision governs subject matter,

not parties. Moreover, the language of the Southern CBA echoes that of Section

204 of the RLA, which provides:

[D]isputes between an employee or group of employees and a carrier or carriers by air growing out of grievances, or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions . . . may be referred by petition of the parties or by either party to an appropriate adjustment board.

45 U.S.C. § 184 (emphasis added). Therefore, under the Southern CBA and the

RLA, Southern was entitled to file a management grievance with the Southern

- 36 - Board regarding the interpretation of Section 1.B.3 of the collective bargaining

agreement.

Second, the district court correctly determined that it lacked

authority to decide whether the merger provisions of the Atlas CBA were

prompted by the announced operational merger of Atlas and Southern. Unlike

cases in which the district court must determine whether a party agreed to be

bound by a collective bargaining agreement, here, the parties have removed that

issue from the district courtʹs consideration and placed it squarely before the

Atlas Board ‐‐ the parties agreed that disputes over the interpretation or

application of the collective bargaining agreements are to be decided by the

boards of adjustment. See Buscek, 919 F.3d at 189‐91. And whether Section 1.F of

the Atlas CBA encompasses AAWH as a parent company, as the Employers

argue, or only applies to the ʺCompanyʺ in reference to Atlas and Polar as a

single air carrier, as the Union argues, is a question of contract interpretation that

is at the heart of the Atlas grievance. Thus, the district court is not permitted to

address the merits of the underlying claim. AT & T, 475 U.S. at 650.

Third, the Union contends that the partiesʹ dispute is not arbitrable

on the ground that it would require one employerʹs adjustment board to exercise

- 37 - jurisdiction over the employees of the other employer. This argument is

unpersuasive. Atlas and Southern each submitted a management grievance to

their respective board of adjustments. Accordingly, the Atlas Board and the

Southern Board must make two independent determinations as to whether the

Union must negotiate a JCBA under Section 1.F of the Atlas CBA and Section 1.B

of the Southern CBA. The Atlas Board will only decide whether the Atlas CBA

requires Atlas pilots to negotiate a JCBA , and the Southern Board will only

decide whether the Southern CBA requires Southern pilots to do so.1 Nothing in

the process of interpreting the provisions of the two collective bargaining

agreements purports to bind Atlas or Southern pilots to the terms of another

existing collective bargaining agreement. Therefore, the Unionʹs third argument

fails, and the dispute is arbitrable.

1 We acknowledge that this framework could produce the strange result that one adjustment board finds that the relevant CBA requires negotiation of a JCBA, but the other finds the opposite. In that case, one group of pilots would be required to negotiate a JCBA with a non‐existent counterparty. At this time, we need not decide the proper course of action should this outcome obtain, as it is not currently before this Court. We note, however, that the parties, both sophisticated and counseled, appear to have bargained for this possibility by including JCBA provisions in their original CBAs.

- 38 - CONCLUSION

For the reasons set forth above, we AFFIRM the judgment of the

district court.

- 39 - 18-1086 Atlas Air, Inc. v. Int'l Bhd. of Teamsters

1 KEARSE, Circuit Judge, dissenting in part:

2 I respectfully dissent from so much of the majority's decision as rules that

3 plaintiffs' motion to compel arbitration, under the collective bargaining agreement

4 between defendants (collectively the "Union") and plaintiff Atlas Air, Inc. ("Atlas"),

5 of the April 2016 management grievance filed by Atlas was timely. I agree with the

6 majority that an action to compel arbitration of a dispute governed by the Railway

7 Labor Act ("RLA") is subject to a statute of limitations of six months, and that that

8 limitations period begins when the party sought to be compelled has unequivocally

9 refused a demand to arbitrate, see, e.g., Associated Brick Mason Contractors of Greater

10 New York, Inc. v. Harrington, 820 F.2d 31, 37-38 (2d Cir. 1987); that a party's apparently

11 unequivocal refusal can properly be viewed as not unequivocal in light of its

12 subsequent conduct or statements, see, e.g., Federation of Westinghouse Independent

13 Salaried Unions v. Westinghouse Electric Corp., 736 F.2d 896, 902 (3d Cir. 1984)

14 ("Westinghouse"); and that determination of the date on which a party has

15 communicated such a refusal unequivocally depends on the particular circumstances

16 of the case, see, e.g., I.B.E.W. System Council U-7 v. New York State Electric & Gas Corp.,

17 180 F.3d 368, 370 (2d Cir. 1999). I disagree with the majority's view that the Union's 1 April 20, 2016 refusal to accede to Atlas's arbitration demand was not unequivocal--or

2 that it became equivocal.

3 On or about April 14, 2016, Atlas sent the Union its management

4 grievance (the "Atlas Grievance"), complaining that, by refusing to engage in

5 bargaining with respect to the integration

6 of staff and operations following the merger of Atlas and Southern Air, Inc.

7 ("Southern"), the Union had "violat[ed] Section 1.F.2.b.iii of the" collective bargaining

8 agreement between Atlas and the Union. The Atlas Grievance demanded arbitration

9 pursuant to the Atlas-Union collective bargaining agreement.

10 The Union responded to the Atlas Grievance in a two-page letter dated

11 April 20, 2016 ("Union's April 20 Letter" or "Letter") by stating that as the rights of

12 Southern employees were "inextricably related to the allegations relating to the Atlas

13 Air, Inc. collective bargaining agreement"--to which the Southern employees were not

14 party--"the entire purported management grievance . . . is not arbitrable." (Union April 20

15 Letter at 1 (emphases added).) After describing "another reason" that "[t]he

16 purported grievance is invalid" (id. at 1-2), the Union Letter reiterated that "[t]he

17 purported grievance is . . . invalid and not arbitrable" (id. at 2 (emphases added)). I view

18 this as an arbitration refusal that was unequivocal.

2 1 In that Letter, the Union concluded by stating "we look forward to an

2 amicable resolution of our dispute through consensual negotiations, as provided for

3 under the RLA" (id. (emphasis added)). The majority--while declining to decide

4 whether the Union's "April 20 letter constituted an unequivocal refusal to arbitrate,"

5 Majority Opinion ante at 32--says that the Union's concluding statement "arguably

6 softened" the Union's "position that the Atlas grievance was not arbitrable" (id.

7 (emphasis added)). I see no such softening. Unlike the Westinghouse case, relied on

8 by the majority, in which that company, after originally refusing arbitration, stated

9 that it, conditionally, "would be willing to proceed to arbitration by mutual agreement in

10 this particular case," 736 F.2d at 899 (emphasis added), here the Union's stated

11 willingness to resolve the dispute simply through "consensual negotiations" does not

12 at all suggest a willingness to submit the dispute to a third entity for adjudication by

13 that entity.

14 The majority concludes that "the Union's participation in ensuing efforts

15 to resolve the dispute rendered its initial refusal equivocal," Majority Opinion ante at

16 32. Again I disagree. The efforts referred to by the majority are principally that "on

17 May 20, 2016, the parties met to discuss, inter alia, interest arbitration" (id. (emphasis

18 added)), and that in July 2016 the parties had a proposed letter of agreement that the

3 1 majority says "suggested a suspension, tolling, or deferral of the dispute relating to

2 the Atlas grievance," id. at 33. I see nothing here to indicate that the Union had

3 retreated from its stance that the Atlas Grievance was not arbitrable. First of all,

4 "[i]nterest arbitration" involves referring a dispute to an arbitration 5 panel in order for it to establish the terms and conditions of a 6 future collective bargaining agreement. It differs from the more 7 typical grievance arbitration, which involves interpreting an existing 8 employment contract to determine whether its conditions have been 9 breached.

10 Mulvaney Mechanical, Inc. v. Sheet Metal Workers International Ass'n, 288 F.3d 491, 494

11 (2d Cir. 2002) (emphases added), vacated on other grounds, 538 U.S. 918 (2003). The

12 parties did indeed proceed to discuss interest arbitration, because they sought to

13 enter into a future contract--one that would, unlike any existing agreement, cover the

14 crew members of both Atlas (along with its affiliate "Polar") and Southern.

15 Further, the July 2016 "Proposed Letter of Agreement" ("LOA") to which

16 the majority refers--and which was headed "DRAFT FOR DISCUSSION"--stated that

17 "[t]he purpose of this LOA is to establish a process to negotiate a joint collective

18 bargaining agreement ('JCBA') covering the Atlas, Polar and Southern Crewmembers"

19 (emphases added). Atlas itself, in an August 12, 2016 letter to the Union, noted that

20 both sides proposed to "require interest arbitration" "only . . . if the parties cannot

21 reach agreement on the terms of a JCBA."

4 1 While the majority views this as the Union "engag[ing] in negotiations

2 and discussions that, if successful, would have obviated the need for arbitration,"

3 Majority Opinion ante at 33, the issue as to whether a refusal to arbitrate was

4 unequivocal is not whether the dispute could be resolved without arbitration. The

5 reference to a "need" for arbitration seems to presume arbitration's availability--which

6 the Union had steadfastly denied--and such a presumption of availability ignores the

7 fundamental principle that the source of any obligation to arbitrate is a contract

8 between the parties:

9 [A]rbitration is a matter of contract and a party cannot be required 10 to submit to arbitration any dispute which he has not agreed so to 11 submit.

12 United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960). The

13 parties plainly were free to negotiate a new agreement that would include a

14 requirement for arbitration of a grievance such as that asserted in Atlas's April 14

15 demand. But I cannot infer that a party's evincing willingness to negotiate for

16 inclusion of an arbitration requirement in a new agreement amounts to a deviation

17 from its prior insistence that there was no relevant authorization for arbitration in the

18 existing agreement.

5 1 In sum, in my view the Union's April 20, 2016 Letter rejected Atlas's

2 request for arbitration unequivocally, stating that the Atlas management grievance

3 was "not arbitrable." The Union's statement that it was willing to resolve the Atlas

4 dispute "through consensual negotiations" did not suggest a willingness to have the

5 dispute adjudicated by an arbitrator. And the Union's participation in negotiations

6 toward providing for arbitration in a new contract did not imply any alteration of its

7 April 20, 2016 position that the Atlas Grievance was not arbitrable under the existing

8 contract. I thus would conclude that the present action filed in February 2017, more

9 than six months later, is untimely.