Appellant, a postal worker, was treated as a new hire when he sought reassignment from an urban letter-carrier route to a rural route. He claims his wages were wrongfully reduced when he was transferred to the rural route. Appellant sued his union, the National Rural Letter Carriers Association (NRLCA), under 39 U.S.C. § 1208(b), alleging that it breached its duty of fair representation. He also sued the United States Postal Service, claiming that he had an implied right of action under 39 U.S.C. § 1006, which establishes career postal employees’ right of transfer. The District Court, in granting summary judgment for appellees, rejected his section 1208(b) claim on the basis that appellant failed to exhaust his remedies under the collective bargaining agreement and his section 1006 claim after holding that Congress did not intend section 1006 to confer an implied right of action on postal employees. Finding no error in the District Court’s judgment, we AFFIRM.
In 1987, appellant took and passed an examination in order to become a rural letter carrier for the United States Postal Service (USPS). He was offered and accepted a position as a rural carrier upon representations by a Postmaster Heffing-ton that he would not experience a cut in pay. Prior to his reassignment he also received a form from the Postal Service stating that his pay would not be reduced. However, his first paycheck as a rural carrier was substantially below his previous salary as an urban carrier. When he informed his supervisor of this, appellant was told it was the result of a clerical error and would be taken care of. He learned one month later that his salary had in fact been reduced from $27,401 as a city carrier to $19,541 as a rural carrier.
Appellant filed a Step 1 grievance. At a hearing he learned that he had been placed on the rural carrier’s pay schedule as a new employee, notwithstanding ten years of prior service. Following the denial of his Step 1 grievance, he filed a Step 2 grievance. His area steward, Robert Knight, told him that Article 9.1(B) of the NRLCA contract put him at the Step B pay level and considered him a new hire. 1 Appellant alleges that Knight told him the NRLCA was tired of city carriers taking rural carrier jobs and that Knight consequently was reluctant to pursue his grievance vigorously. Knight did say, however, that if appellant was promised his former pay level upon reassignment, the NRLCA would pursue a grievance. On November 28, 1987, Knight told appellant that Zippo-ria Sloan, a Detroit labor relations official, had extended the time limit for presenting a Step 2 grievance.
On December 7th, Sloan returned appellant’s Step 2 grievance for resubmission or further Step 1 discussions. Appellant then contacted the NRLCA labor relations director, Steven Smith, who told appellant on *49 December 18th that pending contract negotiations would hopefully put him at his previous pay rate. Appellant telephoned Knight on December 21st and asked about the status of his grievance. He phoned again on January 6, 1988, at which time Knight told him he needed some original documents to process the Step 2 appeal. Appellant submitted copies and was informed on January 12th by Knight that he would not appeal the grievance without original documents.
On February 7th, appellant wrote to Smith and renewed his request for a Step 2 hearing. Receiving no response, appellant filed the present action in federal court. On November 14,1988, the NRLCA appealed the grievance to Step 2. Appellant unsuccessfully appealed his grievance up through Step 4. His case proceeded to arbitration, which was scheduled for May 5, 1989. The District Court granted summary judgment for appellee on April 27, 1989, holding that appellant failed to exhaust his remedies called for in the collective bargaining agreement. Appellant made a motion to alter or amend that judgment when the May 5th hearing did not occur because of a scheduling conflict. That motion was denied on the ground that arbitration had been rescheduled for June 7, 1989 2 .
A. Appellant’s Section 1208(b) Claim
Appellant claims that the union’s failure to process his grievance in a timely manner constituted a breach of the duty of fair representation and breach of contract. It is well-settled that a plaintiff must exhaust contract remedies before seeking review in federal court. To recover from an employer for a violation of a collective bargaining agreement, an employee must first show that his union breached its duty of fair representation in handling his grievance.
Bowen v. United States Postal Service,
Appellant brought his section 1208(b) suit before exhaustion of the arbitration and grievance procedures set out in the collective bargaining agreement. He claims, however, that he fits within the exceptions to total exhaustion carved out in
Clayton v. International Union, U.A.W.,
B. Appellant’s Implied Right of Action Under Section 1006
Appellant claims the District Court erred in holding he has no implied right of action under section 1006. That section provides that:
Officers and employees in the postal career service of the Postal Service shall be eligible for promotion or transfer to any other position in the Postal Service or the executive branch of the Government of the United States for which they are qualified. The authority given by this section shall be used to provide a maximum degree of career promotion opportunities for officers and employees and to insure continued improvement of postal services.
39 U.S.C. § 1006. In determining whether a federal statute confers an implied right of action, we are required to consider whether: 1) the plaintiff is of the class for whose
especial
benefit the statute was created; 2) whether there is any legislative intent, explicit or implicit, which either creates or denies a private remedy; 3) whether finding an implied cause of action is consistent with the underlying purposes of the legislative scheme; and 4) whether the cause of action is one that is traditionally left to state law such that it would be inappropriate to infer a cause of action based only on federal law.
Cort v. Ash,
Appellant clearly meets the first Cort criteria. Section 1006 was enacted to guarantee the right of employees in the postal service to be eligible for transfers and promotions, and appellant is unquestionably a postal employee. In deciding if the second factor—legislative intent to create a private remedy—is met,
[w]e look first, of course, to the statutory language, particularly to the provisions made therein for enforcement and relief. Then we review the legislative history and other traditional aids of statutory interpretation to determine congressional intent.
Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n,
The distinction we draw between “eligibility” and “entitlement” is borne out by United States Supreme Court opinions discussing private causes of action. Statutory language that “explicitly confer[s] a right directly on a class of persons that include[s] the plaintiff in the case” indicates a congressional intent to create a private right of action.
See Universities Research Ass’n v. Coutu,
Failing to find intent to create a private cause of action in the language of section 1006, we must examine the statute’s legislative history for evidence of such intent. In holding that section 1006 does not provide a private right of action, the District Court relied on
Blaze v. Payne,
In discussing the general purposes of the Postal Reorganization Act, 39 U.S.C. § 101 et seq., the Third Circuit Court of Appeals in Gaj stated:
The clear intent of Congress in passing the Postal Reorganization Act was to make the Postal Service an independent executive agency, to improve the efficiency of the mail system, to improve labor management relations, and to make the Postal Service self-supporting. 39 U.S.C. § 101. Neither the language of the statute nor its legislative history shows that Congress intended to create a private remedy.
Reinforcing our conclusion that Congress did not intend to authorize an additional employee remedy in § 1001(b) is the otherwise comprehensive labor law scheme that was embodied in the Postal Reorganization Act, 39 U.S.C. § 101 et seq. and was modeled after private sector labor law. 39 U.S.C. §§ 1201-09.... Pursuant to this scheme, postal employees were given full right to bargain collectively over their wages, hours, and conditions of employment through exclusive bargaining representatives. 39 U.S.C. § 1202-06. The Postal Service is the only federal entity covered by the National Labor Relations Act and subject to the jurisdiction of the National Labor Relations Board. Postal employees, like private employees, may file unfair labor practice charges with the NLRB ... or pursue employment discrimination claims_ Congress expressly deviated from the private sector model in granting postal preference eligibles, principally veterans, the option to challenge adverse actions before the Merit Systems Protection Board. 39 U.S.C. § 1005. In the face of this carefully crafted body of labor law pronouncements, the Third Circuit’s description of Congressional intent [in Gaj] is, if anything, an understatement. There is no room for the weedlike implied remedy sought by Blaze in the flourishing garden of express employee remedies created pursuant to the Postal Reorganization Act.
Blaze,
Appellant also argues that 28 U.S.C. § 1339 gives district courts original jurisdiction to hear civil cases arising under
*52
“any Act of Congress relating to the postal service.” From this he contends that private causes of action exist side-by-side with the remedies provided in the Postal Reorganization Act, since it would be inconsistent for Congress to eliminate private causes of action without modifying section 1339. This reasoning is flawed in several respects. First, the presence of congres-sionally-eonferred federal jurisdiction does not evidence an intent to provide a right to be heard in federal court.
See National Ass’n of Postal Supervisors v. United States Postal Serv.,
Having determined that neither the language, structure, nor the legislative history of the statute shows a congressional intent to fashion an implied private remedy, we need not consider the remaining two factors outlined in
Cort. See California v. Sierra Club,
C. Conflict Between the Labor Contract and 39 U.S.C. § 1006
Appellant lastly argues that under the Supremacy Clause of the United States Constitution, the Postal Reorganization Act preempts any contractual agreement and that therefore the Postal Service cannot rely on contract provision to deprive appellant of rights guaranteed by the Postal Reorganization Act. He says that the contract requirement that all new rural carriers begin at Step B pay level violates his right to transfer under section 1006. We disagree. First, it is clear that his “right” to transfer was not impeded, since he is currently a rural carrier. Second, as discussed above, section 1006 does not confer an absolute right to transfer, but rather makes postal employees eligible for transfer and promotion. Third, even assuming that section 1006 does confer such a right, there is nothing in the statute that requires employees to be transferred at their previous rate of pay. There is no conflict between 39 U.S.C. § 1006 and the pay structure as set out in the bargaining agreement.
Because appellant failed to exhaust available remedies as provided in the collective bargaining agreement, his claim under 39 U.S.C. § 1208(b) was properly dismissed. His claim under section 1006 was also properly dismissed because there is no indication that Congress intended the private cause of action asserted by appellant. Accordingly, the judgment of the District Court is AFFIRMED.
Notes
. The apparent purpose of Article 9.1(B) of the labor agreement is to guarantee job promotion of rural letter carriers by treating urban carriers who transfer as new hires. However, appellant contends that the rural route for which he was hired was vacant, so he was not displacing any rural carrier.
. That hearing was apparently held, and a final arbitration Opinion and Award was issued on November 15, 1989, denying appellant’s grievance.
. Appellant argues that because 39 U.S.C. § 1006 is labeled "Right to Transfer,” he is given entitlement to transfer and promotion. However, § 1006 is in fact entitled "Right of Transfer.” This title seems consistent with our holding that § 1006 merely extends eligibility of transfer and promotion, rather than entitlement to transfer and promotion.