United States Court of Appeals For the First Circuit
No. 20-1690
JON L. BRYAN,
Plaintiff, Appellant,
v.
AMERICAN AIRLINES, INC.; ALLIED PILOTS ASSOCIATION,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Lynch, Kayatta, and Barron, Circuit Judges.
Stephen Schultz, with whom Schultz Law LLP was on brief, for appellant. Mark W. Robertson, with whom Sloane Ackerman and O'Melveny & Myers LLP were on brief, for appellee American Airlines, Inc. James P. Clark, with whom Law Offices of James P. Clark, P.C. was on brief, for appellee Allied Pilots Association.
February 16, 2021 LYNCH, Circuit Judge. In December 2017, Jon L. Bryan,
a former pilot for US Airways who retired in January 1999, brought
suit against the Allied Pilots Association ("APA") and American
Airlines, Inc. ("American Airlines") under the Railway Labor Act
("RLA"), 45 U.S.C. §§ 151 et seq.
In 1999, at Bryan's request, his union at the time
submitted a grievance on his behalf against his then-employer US
Airways, which US Airways denied. That grievance alleged that US
Airways violated the terms of the applicable collective bargaining
agreement by cancelling Bryan's scheduled flight retraining which
allegedly led to his premature retirement. Bryan's suit alleges
that APA, the successor to the union which first submitted his
grievance, breached its statutory duty of fair representation by
withdrawing from pursuing his nearly nineteen-year-old grievance
to arbitration based on what he alleges was an inadequate
investigation into his grievance's merits. He also brings an
alleged "hybrid" suit against American Airlines, as the successor
to US Airways, for US Airways's alleged breach of the collective
bargaining agreement that purportedly led to his premature
retirement.
The district court dismissed the claim against American
Airlines and later granted APA's motion for summary judgment.
Concluding that APA did not breach its duty of fair representation,
we affirm.
- 2 - I.
A. Facts
We refer to the district court's motion to dismiss and
summary judgment opinions, which fully set forth the facts and
issues in this case. See generally Bryan v. Allied Pilots Ass'n,
No. 17-cv-12460-DJC, 2020 WL 3182881 (D. Mass. June 15, 2020);
Bryan v. Allied Pilots Ass'n, No. 17-cv-12460-DJC, 2018 WL 6697681
(D. Mass. Dec. 19, 2018). We summarize only those facts pertinent
to the duty of fair representation claim because we conclude that
that claim against APA fails, and Bryan's counsel conceded at oral
argument that if the claim against APA fails, then so does the
"hybrid" claim against American Airlines. See Miller v. U.S.
Postal Serv., 985 F.2d 9, 10-11 (1st Cir. 1993) (describing a
"joint cause" of action against a union for breach of the duty of
fair representation and an employer for breach of contract as a
"hybrid" suit and explaining that the failure to prove either
"results in failure of the entire hybrid action"); Stanton v. Delta
Air Lines, Inc., 669 F.2d 833, 836 (1st Cir. 1982) (explaining
that courts generally do not have jurisdiction over the merits of
any employment dispute under the RLA, except to determine whether
a union has breached its duty of fair representation).
In the summer of 1998, US Airways scheduled Bryan for
flight retraining but later cancelled his training date and did
not reschedule it. In January 1999, Bryan retired as a pilot from
- 3 - US Airways under the second phase of an Early Retirement Incentive
Program into which he had opted. The program allowed up to 325
pilots to retire no later than May 2000 with certain benefits. He
received all benefits called for under the program. In February
1999, Bryan filed a grievance with the Air Line Pilots Association
("ALPA"), the then-certified collective bargaining representative
for US Airways pilots, relating to the cancellation of his flight
retraining and its consequences.
ALPA initially pursued the grievance at his request. US
Airways denied Bryan's grievance in October 1999, and it affirmed
that denial in August 2000. On August 29, 2000, ALPA submitted
Bryan's dispute to the US Airways Pilots System Board of Adjustment
for arbitration pursuant to ALPA's standard practices.
Between August 2000 and September 2014, Bryan's
grievance was not scheduled for arbitration. There was a
considerable backlog of more than 400 grievances at US Airways
during that time, including grievances which were given priority
over Bryan's grievance. That backlog was exacerbated by
bankruptcies filed by US Airways in 2002 and 2004. During that
period, Bryan contacted union representatives several times
regarding his grievance.
In January 2004, Bryan sent a letter to the National
President of ALPA inquiring as to the status of his grievance and
requesting that it be scheduled for arbitration. There is no
- 4 - evidence that he received a response from the National President,
and his grievance was not scheduled for arbitration after that
inquiry. In June 2004, he emailed Captain Tracy Parrella, the
Grievance Committee chair for ALPA, requesting that she schedule
his grievance for arbitration because he believed the delay in
processing his grievance was excessive. In or around August 2004,
Parrella responded to Bryan and advised him that his "grandchildren
would be dead before the arbitration [of his grievance] was
scheduled," and Bryan interpreted this statement as hyperbole
referring to the union's lack of resources to process the backlog
of grievances. In December 2005, Bryan emailed Parrella with a
settlement proposal and threatened to initiate litigation if no
settlement was reached with US Airways regarding advancing his
grievance to arbitration. ALPA did not conduct settlement
negotiations with US Airways and Bryan did not initiate litigation.
In January 2006, Parrella notified Bryan that his grievance would
not be scheduled for arbitration in the "foreseeable future." In
October 2007, Bryan sent a letter to the National President of
ALPA stating that ALPA had failed to schedule his grievance for
arbitration, referencing a duty of fair representation on the part
of ALPA, and indicating that if no settlement could be reached
with US Airways, he would pursue legal action. ALPA did not
schedule Bryan's grievance for arbitration following that letter
nor did Bryan commence litigation against ALPA or US Airways.
- 5 - In or around May 2008, the US Airways Pilots Association
("USAPA") replaced ALPA as the certified collective bargaining
representative for US Airways pilots. Parrella remained the
Grievance Committee chair for USAPA from 2008 through 2012. At
some point during her tenure as Grievance Committee chair, Parrella
placed Bryan's grievance on a list of grievances that the union
would not pursue because the union had determined it had no merit.
In December 2011, Bryan contacted Parrella again to ask about the
status of his grievance and again threatened litigation for the
union's failure to take his grievance to arbitration. Following
this communication with Parrella, his grievance was still not
scheduled for arbitration and he did not pursue legal action.
Bryan had no further communication with USAPA regarding his
grievance between December 2011 and October 2014.
In or around 2013, Captain David Ciabattoni, who had
replaced Parrella as USAPA's Grievance Committee chair, reviewed
Bryan's grievance. He discussed that grievance with Captain Doug
Mowery, the former ALPA Grievance Committee chair at the time
Bryan's grievance was filed, who Ciabattoni considered a subject-
matter expert regarding that grievance. Based in part on that
discussion with Mowery, Ciabattoni concluded that Bryan's
grievance lacked merit and he placed Bryan's grievance on an
internal list of grievances that were candidates for withdrawal by
the union.
- 6 - In or around December 2013, US Airways completed a merger
into American Airlines. At the time of the merger, USAPA was still
the certified collective bargaining representative for the US
Airways pilots and APA was the representative for the American
Airlines pilots. In or around September 2014, APA became the
certified collective bargaining representative for the pilots of
the merged American Airlines. In October 2014, Ciabattoni notified
Bryan by email of this change in representation and the grievance
processing going forward.
In 2015, APA set up a process for reviewing the hundreds
of outstanding USAPA grievances by having former USAPA
representatives review grievance files and recommend which
grievances APA should pursue either through arbitration or
settlement. APA relied on the USAPA representatives as subject-
matter experts because they had more knowledge and information as
to the USAPA grievances. Tricia Kennedy, Esq., APA's Director of
Grievance and Dispute Resolution, asked Ciabattoni and several
other former USAPA representatives to travel to APA and review the
grievance files over several days. In November 2015, Ciabattoni
sent Kennedy an email containing a table titled "OLD USAPA
WITHDRAWN GRIEVANCES" which included Bryan's grievance. After
reviewing Bryan's grievance file for APA, Ciabattoni and other
former USAPA representatives agreed that Bryan's grievance lacked
merit and recommended to Kennedy that APA withdraw the grievance.
- 7 - Kennedy did not make any independent decisions as to which
grievances were withdrawn and only passed the recommendations on
to the APA President.
Bryan contacted APA for the first time regarding the
status of his grievance when he called Kennedy in February 2017.
Kennedy did not follow up on his inquiry and so he called her again
in April 2017. She again did not follow up with him and Bryan
contacted her again in May 2017, at which time she told him that
a meeting was scheduled with American Airlines to discuss the
grievances, including his. There is no evidence that Kennedy or
anyone else from APA told Bryan that his grievance had merit or
that APA would pursue his grievance through arbitration.
In August 2017, APA and American Airlines reached a
tentative settlement agreement in which American Airlines agreed
to pay a sum in settlement of those grievances that the USAPA
subject-matter experts had found to have merit, while APA agreed
to withdraw all the grievances that the USAPA subject-matter
experts had determined did not have merit. On October 5, 2017,
Kennedy notified Bryan of the tentative settlement agreement and
that his grievance had been withdrawn. Kennedy told him that he
could contact Paul DiOrio, the Chairman of the Philadelphia
domicile, if he had any questions about his grievance. Bryan never
contacted DiOrio or anyone else at APA to discuss his grievance or
to object to its withdrawal, though he did request his grievance
- 8 - file from Kennedy which was not provided to him until after he
filed this action. The Global Settlement Agreement, which included
the withdrawal of Bryan's grievance, was finalized and executed on
October 16, 2017.
B. Procedural History
On December 14, 2017, Bryan filed this action in the
district court, alleging a breach of APA's statutory duty of fair
representation and a breach of the collective bargaining agreement
which he asserted resulted in his allegedly premature retirement.
On March 27, 2018, APA and American Airlines each filed a motion
to dismiss for failure to state a claim. The court held a hearing
on those motions on June 26, 2018. On December 19, 2018, the
district court allowed American Airlines's motion to dismiss, but
denied APA's motion to dismiss. Bryan, 2018 WL 6697681, at *8.
In dismissing the claim against American Airlines, the court held
that Bryan had failed to state a claim to relief because he failed
to allege any facts plausibly suggesting collusion between APA and
American Airlines in denying his rights under the RLA or the
collective bargaining agreement or bad faith on American
Airlines's part in entering the Global Settlement Agreement. Id.
at *6-8.
On January 31, 2020, APA filed a motion for summary
judgment. The district court held a hearing on the motion on April
2, 2020. On June 15, 2020, the court allowed APA's motion for
- 9 - summary judgment. Bryan, 2020 WL 3182881, at *8. It first assumed
that APA owed a statutory duty of fair representation to Bryan
even though his grievance had been filed with ALPA. Id. at *4-5.
It next held that the RLA's six-month statute of limitations barred
Bryan's claim against APA because he "knew or reasonably should
have known of the unions' alleged wrongdoing long before filing
suit." Id. at *5-6. Finally, the court held that, even if his
claim against APA was not time-barred, the claim failed on the
merits because APA did not breach its duty of fair representation.
Id. at *7. The court concluded that APA instituted an adequate
review process in which it relied on the recommendations of former
USAPA representatives and that the review process was neither
arbitrary nor conducted in bad faith with respect to Bryan's
grievance. Id.
Bryan timely appealed both district court decisions.
II.
Because we agree with the district court that the
evidence Bryan put forward on summary judgment does not permit a
finding of any breach of a duty of fair representation by APA, we
need not reach the statute of limitations issue. And because we
hold that Bryan's duty of fair representation claim against APA
lacks merit, we need not reach the claim against American Airlines
- 10 - which must also fail, as Bryan's counsel properly conceded.1 See
Miller, 985 F.2d at 11; Stanton, 669 F.2d at 836; see also Martin
v. Am. Airlines, Inc., 390 F.3d 601, 608 (8th Cir. 2004) (holding
that, because the court concluded the union did not breach its
statutory duty of fair representation, the court lacked
jurisdiction over the minor dispute asserted against the employer
under the "hybrid" theory).
We review de novo a district court's decision to grant
a motion to dismiss for failure to state a claim. Harry v.
Countrywide Home Loans, Inc., 902 F.3d 16, 18 (1st Cir. 2018). We
also review de novo a district court's grant of summary judgment.
Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9, 21 (1st Cir.
2018). "Summary judgment is warranted if the record, construed in
the light most flattering to the nonmovant, 'presents no genuine
issue as to any material fact and reflects the movant's entitlement
to judgment as a matter of law.'" Id. at 20-21 (quoting McKenney
v. Mangino, 873 F.3d 75, 80 (1st Cir. 2017)); see also Fed. R.
Civ. P. 56(a).
1 Bryan and American Airlines also dispute whether case law regarding the Labor Management Relations Act ("LMRA"), 29 U.S.C. §§ 141 et seq., is applicable to claims brought under the RLA. Because we affirm the dismissal of the claim against American Airlines without reaching the merits, we need not resolve this dispute. This dispute over the LMRA case law does not relate to the rules set forth in Miller, 985 F.2d at 10-12, a case which APA asserts applies in the RLA context and which Bryan does not contest applies here.
- 11 - Under the RLA, which governs labor relations in the
airline industry, see 45 U.S.C. § 181, a certified union has a
statutory duty of fair representation that requires it "to serve
the interests of all members without hostility or discrimination
toward any, to exercise its discretion with complete good faith
and honesty, and to avoid arbitrary conduct." Air Line Pilots
Ass'n, Int'l v. O'Neill, 499 U.S. 65, 76 (1991) (quoting Vaca v.
Sipes, 386 U.S. 171, 177 (1967)); see also Emmanuel v. Int'l
Brotherhood of Teamsters, Loc. Union No. 25, 426 F.3d 416, 420
(1st Cir. 2005) ("A union breaches this duty by acting
discriminatorily, in bad faith, or arbitrarily toward a union
member.").2 "[A] union's actions are arbitrary only if, in light
of the factual and legal landscape at the time of the union's
actions, the union's behavior is so far outside a 'wide range of
reasonableness' as to be irrational." O'Neill, 499 U.S. at 67
(citation omitted) (quoting Ford Motor Co. v. Huffman, 345 U.S.
330, 338 (1953)); see also id. at 78; Miller, 985 F.2d at 12. "[A]
union's mere negligence or erroneous judgment will not constitute
a breach of the duty of fair representation." Miller, 985 F.2d at
12. "A union acts in bad faith when it acts with an improper
2 Bryan has waived any argument that there was "discrimination" against him by not arguing it in his initial brief, see Kelly v. Riverside Partners, LLC, 964 F.3d 107, 116 & n.13 (1st Cir. 2020), so we focus on the law about what constitutes arbitrariness and bad faith.
- 12 - intent, purpose, or motive, and [b]ad faith encompasses fraud,
dishonesty, and other intentionally misleading conduct." Good
Samaritan Med. Ctr. v. NLRB, 858 F.3d 617, 630 (1st Cir. 2017)
(alteration in original) (internal quotation marks omitted)
(quoting Spellacy v. Airline Pilots Ass'n-Int'l, 156 F.3d 120, 126
(2d Cir. 1998)).
"Any substantive examination of a union's
performance . . . must be highly deferential, recognizing the wide
latitude that negotiators need for the effective performance of
their bargaining responsibilities." O'Neill, 499 U.S. at 78; see
also Emmanuel, 426 F.3d at 420 ("[T]he reviewing court must accord
the union's conduct substantial deference[,] . . . [and t]his
standard of review recognizes that unions must have ample latitude
to perform their representative functions."); Miller, 985 F.2d at
12 ("We also allow the union great latitude in determining the
merits of an employee's grievance and the level of effort it will
expend to pursue it.").
Bryan has not presented evidence of either arbitrariness
or bad faith, and the summary judgment record makes it quite clear
that he has not made out a case for breach of the duty of fair
representation.3 Bryan mischaracterizes clear law on what
3 At oral argument for this appeal, Bryan's counsel made clear that he is not bringing a duty of fair representation claim based on the various unions' failure to pursue Bryan's grievance to arbitration. Rather, the duty of fair representation claim is
- 13 - constitutes both arbitrariness and bad faith. "The duty of fair
representation mandates that a union conduct at least a 'minimal
investigation' into an employee's grievance," but "only an
'egregious disregard for union members' rights constitutes a
breach of the union's duty' to investigate." Emmanuel, 426 F.3d
at 420 (first quoting Garcia v. Zenith Elecs. Corp., 58 F.3d 1171,
1176 (7th Cir. 1995); and then quoting Castelli v. Douglas Aircraft
Co., 752 F.2d 1480, 1483 (9th Cir. 1985)); see also Vaca, 386 U.S.
at 191 ("[W]e accept the proposition that a union may not
arbitrarily ignore a meritorious grievance or process it in
perfunctory fashion . . . .").
APA more than satisfied its duty to conduct at least a
"minimal investigation" into Bryan's grievance. It is undisputed
that APA brought in former USAPA representatives to review the
grievances APA had inherited from USAPA, and APA relied on these
former USAPA representatives to provide recommendations as to the
merits of those grievances. At least one of these former USAPA
representatives had previously reviewed Bryan's grievance and
determined that it lacked merit, including it on a table of old
USAPA grievances that had been designated as candidates for
withdrawal which was provided to APA. These representatives also
based only on APA's purportedly inadequate investigation as to the merits of Bryan's grievance and decision to withdraw the grievance without Bryan's participation. We analyze only that claim.
- 14 - unanimously recommended that Bryan's grievance be withdrawn by
APA. APA's reliance on the expertise of these former USAPA
representatives in choosing to withdraw Bryan's grievance did not
reflect an "egregious disregard" for Bryan's rights, Emmanuel, 426
F.3d at 420 (quoting Castelli, 752 F.2d at 1483), and Bryan cites
no controlling case law which suggests that APA's review process
here was not at least a minimally adequate investigation.
Bryan posits that the experts on which APA relied were
required by the duty of fair representation to truly be experts,
including being familiar with the particular collective bargaining
provision at issue in Bryan's grievance and understanding the
nature of the grievance. Without accepting this contention, even
so, mere negligence or erroneous judgment does not constitute a
breach of the duty of fair representation. Miller, 985 F.2d at
12. The USAPA representatives were at least more familiar with
the former USAPA grievances and applicable collective bargaining
agreement than was APA. We must afford substantial deference to
the decision not to pursue the grievance further to arbitration.
See O'Neill, 499 U.S. at 78; Emmanuel, 426 F.3d at 420; Miller,
985 F.2d at 12. Two bankruptcies, a change in unions, a 400-case
backlog, and the passage of almost two decades reasonably explain
why APA did not need to do more to investigate a claim that the
predecessor union had several times marked for dropping after the
airline had rejected it.
- 15 - In addition, Bryan presents no evidence that APA, or the
former USAPA representatives on which it relied, acted in bad faith
in reviewing Bryan's grievance or that APA acted in bad faith in
withdrawing it. Bryan has presented no evidence that anyone from
APA ever told him that his grievance had merit or that the union
would pursue it through arbitration. Bryan was told the name of
the APA agent to contact if he had any questions regarding the
withdrawal of his grievance. It was his choice not to contact
that agent.
Nor was APA under an obligation to give him even more
notice than he was given of its decision not to pursue his
grievance to arbitration. Bryan argues that he had a right to
pursue his grievance individually "at his own expense," and that
the failure of APA to notify him sooner deprived him of that
opportunity. Bryan has cited no controlling authority for the
proposition that an employee has an individual right under the RLA
to pursue a grievance against his employer where the employee's
certified representative has declined to pursue that grievance,
nor has he explained why such a right exists under the statute.
Cf. Vaca, 386 U.S. at 191 (holding that, under the LMRA, an
"individual employee has [no] absolute right to have his grievance
taken to arbitration regardless of the provisions of the applicable
collective bargaining agreement"); id. at 194-95; Plumley v. S.
Container, Inc., 303 F.3d 364, 374-75 (1st Cir. 2002) (applying
- 16 - LMRA); Miller, 985 F.2d at 12 (citing Vaca, 386 U.S. at 191). To
the extent that such a right exists under the RLA, we reject that
it was violated on these facts because Bryan was notified of the
withdrawal of his grievance and given an opportunity to contact an
APA agent about his grievance more than a week before the Global
Settlement Agreement became final. That he chose not to contact
that agent about his grievance despite having more than a week to
do so defeats his claim that he was entitled to more notice.
III.
We hold that APA did not breach its duty of fair
representation under the RLA. Based on Bryan's concession at oral
argument, we also hold that Bryan cannot maintain a claim against
American Airlines. The judgment of the district court is affirmed.
- 17 -