Careflite v. Office & Professional Employees International Union

ELROD, Before DENNIS and Circuit Judges.* DENNIS, Circuit Judge: This case scope involves the of a griev- ance procedure forth in a set collective bargaining agreement airline and its union pilots’ Railway under the (“RLA”), § Labor Act 151 et seq. U.S.C. RLA, “The which was extended industry, Apr. cover the airline see Act of 10, 1189; ch. 49 Stat. 45 U.S.C. 181-188, §§ up mandatory sets arbitral * Judge argument Circuit being quorum. BARKSDALE heard decided 28 U.S.C. 46(d). in this case but thereafter recused. The case of the we con- tion and disputes ‘growing to handle

mechanism may pilot clude that or out of the arbitral concerning through the RLA’s seek redress agreements or application dispute. this rules, working mechanism resolve or condi- pay, rates of ” Airlines, Inc. Nor- tions.’ Hawaiian I. BACKGROUND ris, (1994) (quoting 45 U.S.C. L.Ed.2d non-profit a medical air CareFlite is 151(a)). company operating the transportation largest emergency helicopter medical ser- in this is whether question first case Texas, with medical vice in North six bargaining repre- his pilot an airline transport helicopters operating In- from five sentative, Employees the Professional (“the Union, area. As Un- bases in Dallas-Fort Worth ternational AFL-CIO ion”), giving of the time of the events rise this wrongfully he was who claim that lawsuit, employed helicopter discharged timely he did not ob- CareFlite becausе pilots have pilots; repre- CareFlite’s been Transport tain an Airline Pilot Certificate (“ATP”) by the since 2001. Admin- sented CareFlite from the Federal Aviation parties to a collective (“FAA”), may redress and the Union are istration seek (“the CBA”) mechanism, agreement that is bargaining arbitral or through the RLA’s April April effective from 2006 until they pursue must other remedies whether requires 2011. The CBA that all wrongful discharge, for because the collec- bargaining acquire unit pro- pilots in bargaining agreement explicitly tive ATP, highest pilot re- the FAA’s certification. employment that “termination vides negotiated, only an At was sulting pilot’s from a failurе to obtain the time the CBA pilots already possessed requirements of this a few CareFlite ATP within time non-grievable required is non-arbitra- ATPs. CBA CareFlite section training pilots con- class grievance provide an ATP for ble.” We conclude pilots employed is a cerning discharge dispute specified his not Ca- appli- at the time the growing out of reFlite year from bargaining agree- adopted would have one cation the collective and, therefore, training is date of this class obtain their ment not subject Finally, the RLA’s ATPs. the CBA included fol- dispute arbitral lowing employment clause: “termination mechanism. pilot’s frоm failure obtain an resulting question is the air- The second whether requirements ATP within the time Union, pilot claiming and the in line non-grievable section is and non-arbitra- CareFlite, em- employer, during his his 12(1). The ble.” CBA Art. CBA also ployment, wrongfully denied him an exten- stating that termi- “[a] included a clause adequate prepare sion and for employment nation failure to com- [for test, treating ATP thus him in a less favor- certification, training or plete required in required by able manner than a termination for failure to which includes in a having retaliation for his prevailed non-grievable obtain or have an ATP] may re- prior proceeding, seek 13(4). Art. аnd non-arbitrable.” CBA through dress the RLA’s arbitral mecha- working express- Craig began Lee Hilton nism. Because the CBA does ly pilot CareFlite December implicitly exclude this for mechanism, Hilton Beginning November and arbitration Chair- as the Committee question interpreta- and this calls for an served CareFlite for Local highest prevailing man OPEIU ton for the arbitration. Care- position bargaining CareFlite union Flite denied the and maintains Hilton, January unit. On in his it is not arbitrable under the CBA. union in- capacity representative, as a On the deadline ac- for Raymond Dauphinais, formed CareFlite’s quiring an ATP pilots “current” Operations, Vice President аnd Director discharged CareFlite for Hilton concerned, pilots were reasons not possessing the certification. On June disclose, the record does about Care- the Union filed a grievance chal- employee position Flite’s choice of lenging discharge Hilton’s re- seeking 6, Training Manager. of Aviation On June instatement and extension the ATP Hilton, discharged CareFlite pur- (“discharge grievance”). deadline Care- portedly involving due inter- to incidents Flite denied the and maintains personal and lack of judgment. conflict it is not arbitrable under the CBA. relating filed to 4, 2007, On June CareFlite filed a motion discharge, аlleging that CareFlite was seeking federal district court a declara- retaliating against Hilton for his union ac- judgment tory May 15, 2007, that both the tivity, and the arbitrator ordered Hilton time extension grievance and the June grounds reinstated on the that CareFlite 2007, discharge grievance are not arbitra- to did have cause terminate him. ble and cannot be to submitted gave The arbitrator CareFlite two provides because the CBA that “termi- to weeks reinstate Hilton. of- CareFlite of employment resulting nation pi- from a Hilton at fered reinstatement end lot’s failure to obtain an ATP within the Friday, period, April the two-week on requirements time of this section is non- accepted. Friday, May 2007. Hilton On grievable and non-arbitrable.” CBA Art. report CareFlite told to for Hilton 12(1). The Union and Hilton filed a coun- training Monday, 7, 2007, on his first terclaim seeking declaratory judgment day work following reinstatement. arbitrable, or al- to Upon returning work Hilton and the ternatively, seeking judicial relief on inde- Union, behalf, on his asked various mem- pendent state and federal law claims for bers CareFlite’s management whether alleged CareFlite’s breach of contract and given Hilton would ten additional violation of RLA. parties filed (the work) months time he was summary judgment. cross-motions for On complete requirement, that, ATP given his July 2008 the district court denied Ca- discharge, due to the improper he had not reFlite’s for summary motion judgment employed been CareFlite for most granted the Union and Hilton’s motion year pilots the other had had to obtain summary for judgment, ordering that both management their ATPs. CareFlite indi- grievances be submitted to arbitration. it grant any cated would exten- The district court did sion, any not address Hilton because could have obtained remaining claims ATP for breach of during his he con- was dis- tract or violation the RLA. charged or after the CareFlite arbitrator ordered his reinstatement, timely apрealed. or could still obtain it the deadline. The Union filed a May 15, on based on CareFlite’s II. STANDARD OF REVIEW

unwillingness to extend the ATP deadline (“time for Hilton extension grievance”), rulings ac- We review motions sum- retaliating cusing against mary judgment CareFlite Hil- de novo. Shaw Construe- § 151a. “Minor involve F.3d 45 U.S.C. Eng’rs, Kaiser tors v. ICF Cir.2004). (5th meaning of ex entitled party A is ‘controversies over if only plead- “the in a summary judgment bargaining agreement isting collective ” materi- discovery and disclosure ings, the situation.’ Hawaiian Air fact particular file, show any affidavits als on lines, 2239 (quot at S.Ct. U.S. materi- genuine issue as there is no Co., Chicago R. & I.R. ing Trainmen is entitled the movant al fact 635,1 L.Ed.2d 622 U.S. 77 S.Ct. Fed. of law.” judgment as a matter (1957)). Thus, has 56(c). cross-motiоns R.Civ.P. When “major disputes seek create explained, filed, this summary have been judgment rights, minor to en contractual issue genuine court determines whether Id. at force them.” par- or whether one of material fact exists Rail, Consol. of law. a matter ty prevail entitled 2477), Ry. citing Elgin, J. E. & Co. If Constructors, F.3d Shaw U.S., Burley, 325 ‍​​‌‌‌‌‌‌​​‌‌‌‌‌‌​​‌​‌​‌​‌​​​​​‌​‌​‌‌‌‌​​‌‌‌‌‌‌‌‌‍is entitled party the unsuccessful below (1945). 89 L.Ed. 1886 law, will of this court prevail as matter disputes, are minor grievances that Id. at 539 If judgment party. enter only they through n. 9. “must be resolved mechanisms, including the carrier’s RLA III. DISCUSSION dispute-resolution processes internal adjustment in Ha- Supreme explained As Court established an board Airlines, in 253, “Congress’ purpоse at 114 employer waiian unions.” Id. stability 184; Buell, passing promote § the RLA was to (citing 45 S.Ct. 2239 U.S.C. by provid- S.Ct., 1414; in labor-management 563, 107 relations 480 U.S. at at Consol. 2480). for resolv- ing comprehensive framework Rail, 302, S.Ct., 109 at U.S. at 491 at ing disputes.” 512 U.S. labor in grievances To whether the determine Atchison, Topeka & San- (citing S.Ct. 2239 dispute this constitute a minor we case 562, Buell, Ry. ta Co. v. 480 U.S. Fe inquiry to the turn first Court’s (1987) and 94 L.Ed.2d S.Ct. scope into the of a minor 151a). § RLA therefore 45 U.S.C. RLA. mecha- mandatory arbitral “establishes inqui- In Hawaiian the Court’s prompt orderly nism for ‘the settle- scope disputes began into minor ry of Id. disputes.” two ment’ of classes of of at with the text the statute. U.S. 151a). The first class (quоting U.S.C. Because the 114 S.Ct. 2239. statute concerning “rates of disputes of are those “disputes to include disputes defines minor these pay, working rules or conditions”: grievances, out or of growing ... out dis- “major” “Major disputes. Id. or interpretation application of collective

putes relate to ‘the formation [CBAs],” first the Court considered to se- or efforts [bargaining] agreements ” disjunctive argument language that this Rail (quoting cure Consol. them.’ Id. “grievances” must indicate that means Ass’n, 491 Corp. Ry. Labor Executives’ other than labor-contract dis- something 105 L.Ed.2d U.S. “grievances” would be else term putes, (1989)). disputes The second class Id. at 114 S.Ct. 2239. suрerfluous. “grow[] out disputes are “minor” —these suggests “griev- argument Such interpretation or out all employ- be read to mean ances” should agreements covering or application including those rules, disputes, working or conditions.” ment-related pay, rates of Id. statutory or common law. based on common the labor-law in gener- context al,” Paperworkers Misco, Inc., id. (citing rejected interpretation, The Court “[ejven however, concluding if we 108 S.Ct. (1987)), persuaded that the ‘or’ L.Ed.2d 286

were word carried and it has been “un- way derstood in context,” this RLA weight, interpretation would Hawaiian overlap not unlike the аt produce one it avoid, (citing a Congressional report2). purports expansive because that “Significantly,” added, the Court “the ‘grievances’ necessarily ad- definition would justment charged boards encompass administra- disputes growing of ‘the tion minor-dispute of the provisions have interpretation application’ of CBA’s.”1 provisions understood these Id. at 253-54, “Thus, pertaining only disputes invoking contract-based attempting ‘grievances’ to save the term Id. rights.” Adjust- National Rail superfluity, that overly expansive ment Board System decisions and Boards reading make phrase would after the decisions3). Adjustment Id. ‘or’ surplusage.” mere S.Ct. 2239. Accordingly, the Court concluded thought likely it more the most natural reading of the term “grievances,” “grievances” like over “the inter- in this context syn as a CBAs, pretation application” onym refers involving disagreements over how effect of a CBA. Id. give 255,114 Id. As bargained-for agreement. Further, stated, S.Ct. 2239.4 the Court out, pointed ‘grievance’ “the use of “[njothing legislative Court in the history of the arising to refer to a claim out a CBA RLA5 is or other the sections of statute6 Olano, rights 1. The Court cited United by States 507 force created State or Federal Stat- U.S. 123 L.Ed.2d questions arising utes and is limited out of 508, (1993) (reading "error or defect” cre ‍​​‌‌‌‌‌‌​​‌‌‌‌‌‌​​‌​‌​‌​‌​​​​​‌​‌​‌‌‌‌​​‌‌‌‌‌‌‌‌‍interpretations application Railway La- "error”) category ate one United Agreements'); bor Northwest Airlines/Airline Young, States v. 470 n. Assn., U.S. System Adjustment, Pilots Int’l Bd. of (1985)), S.Ct. 84 L.Ed.2d McNal ('[Bjoth p. Decision of June the States, 350, 358-59, ly v. United 483 U.S. traditional role of the arbitrator admoni- (second (1987) S.Ct. 97 L.Ed.2d 292 require tions of the courts Board to re- phrase disjunctive simply added to make attempting frain from to construe of the meaning phrase of the first "unmistak [RLA]'); provisions of 727, United able”). (BNA) ('The (1967) juris- 48 LA System diction of this Board does not extend No.1944, Sess., H.R.Rep. Cong., 2. 73d 2d 2-3 interpreting applying Rights the Civil (1934) (referring to RLA settlement of "minor Act').” disputes 'grievances,' known as which devel- op interpretatiоn application from the and/or 4. may 'or' “[T]he word be used indicate of the between the contracts labor unions and synonymous, equivalent, 'the or substitutive carriers”). ” character phrases.' of two words or Id. (quoting “See, Webster's Third New International following: 3. The e.g., Court cited (1986)). Dictionary (1987) NRAB Fourth Award Div. No. (function Adjustment of the National Rail "During surrounding (Board) the debates the RLA’s disputes Board is to decide in accor- that, CBA); enactment in floor statements controlling dance with the NRAB isolation, (issues support interpreta- Third could a broader Div. Award No. 24348 'grievances' application tion of were by related to the counterbalanced leg- contracts are outside the other statements —some Board's authori- even same ty); equated grievances NRAB Div. Third Award No. 19790 islators—that with con- (1973) (‘[Tjhis jurisdiction interpretation. Compare Cong. Board lacks to en- tract Rec. Air- in the CBA between Hawaiian Fur- tamed Id. this conclusion.” undermines The offi- hearing Norris’ union. lines and ther, case confirms that law Court’s insubordination; cer Norris for terminated disputes contemplat- minor category of termi- subsequently appealed his grounded Norris are those that 151a ed held, hearing but appeal No was nation. explained The Court has in the CBA. court. 512 U.S. filed suit in statе “arise where Norris disputes are those that major 248-52,114 at S.Ct. 2239. agreement] no where there is [collective one, change terms of sought to it is Court Eventually granted issue not whether an and therefore question of wheth to resolve the certiorari agreement controls the controver- existing wrongful-discharge er Norris’ state-law Rail, sy.” Consol. by the RLA. preempted tort claims were Major disputes “look to Ct. 2477. Norris noted future, acquisition rights wrongly discharged to be asserted —not to have vested rights claimed assertion whistleblowing for his activities —arose Burley, past.” (quoting in the Id. law, an independent from state solely 1282). duty by the CBA. Id. at not created parties’ obli in 114 2239. Thus employee “[t]he In Hawaiian Norris, gation the RLA to arbitrate dis an aircraft question, Grant in putes Hawaiian Air- of the worked for mechanic who relieve terpretation of the CBA did not supervisors notified his lines. Norris duty.” Id. In other petitioners damaged plane axle sleeve on a needed words, that the RLA’s man be safe to the Court held replaced to be before it would ap arbitration mechanism does not fly. datory His his recom- supervisor overruled mendation, ordering piece ply employer to all non-major to all plane employees, com- and its or еven sanded and reinstalled. employer and its em journey safely but re- between an pleted Norris only those which ployees, rights had but certify repair fused the been a provisions the of correctly the arise from CBA. performed plane and that is not created suspended fit was assertion of flight. was for Norris to bind by subject is therefore not grievance procedure the con- invoked id., (1926), bargaining] of [collective 8807 8808. the hardly agreements § This debate calis for fash- inconclusive or otherwise.' 45 U.S.C. 152 ioning pre-emption. rule of More- broad provision, phrased which is more First. This over, Congress in when amended the 1934 § broadly operative language the 153 than of mandatory for RLAto make arbitration minor (I), clearly only does refer to minor First not Report disputes, accompanying House provision disputes. But even if this is read provide 'to stated that the bill intended parties require try to settle certain issues sufficient and effective means for settle- employment relationship arising out of the "griev- of as ment minor known by this specifically addressed but not ances,” develop from the which compel conclusion that all issues does not application of the contracts and/or relationship touching employmеnt on the carriers, fixing unions and the labor through arbitration or that must be resolved wages working H.R.Rep. conditions.’ involving rights all claims and duties Sess., (1934).” Cong., 2-3 No. 73d 2d independent thereby pre- the CBAare exist 4, 114 2239. 512 U.S. at 255 n. S.Ct. precedents squarely reject empted. Our pervasive pre-emption.” at 255 n. 512 U.S. 6. cite the statute's reference "Petitioners (alterations including original). parties' general in duties 114 S.Ct. 'settling] disputes, all whether under the See thus ing against arbitration statute. id.7 held that Norris’ claim Ha- against claim Hawaiian Norris’ state-law waiian for Airlines breach of state law was wrongful discharge for was there Airlines RLA, not preempted 512 U.S. at subject mandatory fore not arbitration. 266,114 S.Ct. 2239. 266,114

Id. at S.Ct. The framework of Hawaiian Air only In so the Court not holding, relied lines our analysis controls here. The Un foregoing analysis, but also on its doctrine, argues ion developed the con preemption constitute a of both RLA other labor text minor dispute that must be referred to relations The Court noted that it statutes. doing, arbitration. In so the Union argues previously had held that “the RLA’s mech provision that the barring the CBA resolving for anism minor does grievance discharges based on failure to pre-empt causes action enforce obtain an ATP within specified rights independent are CBA.” period is void because it violates the RLA. (citing Id. at 114 S.Ct. 2239 Missouri Under the rationale of Hawaiian Norwood, Pac. R.R. v. Co. U.S. compel Union’s effort to arbitration on 458, 462, L.Ed. 1010 S.Ct. the June discharge grievance must (1931)). Thus, protections “substantive rejected. The Union and CareFlite law, independent provided state agreed excluding to a CBA discharges agreement might govern, whatever labor arising from failure to obtain ATP from RLA,” not pre-empted are under the even arbitration the grievance process. if some of same issues factual The text of the CBA to this effect states involved. Id. at S.Ct. employment “termination resulting found further confirmation of its Court pilot’s failure to obtain an ATP within cases approach applying “virtual the time requirements of this section is pre-emption identical ... ly standard the non-grievable and non-arbitrable.” The employs involving in cases 301 of unambiguous CBA is point on this and is Management the [Labor Relations Act].” capable aof construction that allows Id. S.Ct. 2239 Allis- discharges failure to Lueck, Corp. Chalmers obtain an ATP. The argument Union’s 85 L.Ed.2d 206 and Lin one, therefore, that the is a minor Norge Chef, gle Magic Div. is “frivolous” and “obviously insubstantial.” 1877, L.Ed.2d Rail, 307,109 See Consol. U.S. at (1988)). The Court noted that also it 2477. The give any CBA does not rise to previously applied had preemption such right grieve discharge based on a analysis to involving ‍​​‌‌‌‌‌‌​​‌‌‌‌‌‌​​‌​‌​‌​‌​​​​​‌​‌​‌‌‌‌​​‌‌‌‌‌‌‌‌‍wrongful cases dis pilot’s timely failure to an charge, see obtain ATP id. Andrews v. Louis Co., fact, expressly ville & R.R. certificate —in the CBA Nashville ne (1972)), gates 32 L.Ed.2d 95 grievance. Fur- Ass'n, grievance, See 7. also Air Line Pilots Int’l v. Delta then a claim on that based issue Lines, Inc., (D.C.Cir. it). Air cannot be to arise from 863 F.2d said 92-95 1988) (rejecting argument union’s that RLA exemption, argues Without Union requirements arbitration cannot be waived or discharge grievable violating would be as bargained away purpose because the of an "just discharge provision cause” in Article arbitration under board the RLA to decide 22, Section 2 of the CBA and the anti-discrim- CBA, disputes arising out of and if a CBA provision in Article Sec- ination/retaliation specifically excludes issue from arbitration tion of the CBA. that from terms of arise ther, expressly contem- because the CBA discharges dispute every in a not to such ATP-related plates arbitration, union); from Hilton’s Air employer excludes them from the “independent” Northwest, termination is not Ass’n Line Pilots v. determining purpose (same). (D.C.Cir.1980) CBA F.2d But see un- may yet bring claims whether Hilton Airlines, Inc., 974 F.2d Bowe v. Nw. law, unless such state or federal der state Cir.1994) (8th further (holding without rights arise from created federal claims provision thаt CBA explanation unquoted in the CBA. elsewhere than disputes to federal “referring [ERISA] mandatory RLA’s preempt court” did not Thus, perceives, rightly the Union requirements). concerning arbitration only hope compel arbitration 1, 2007, discharge grievance is to the June argues categorically, and the The Union clause in the to invalidate the convince us arbitrability agreed, district court grievance of a dis- prohibits principles developed an ATP. charge on failure to obtain based Court under the National Labor Relations Contrary by the picture painted to the Act, (“NLRA”), seq. 45 U.S.C. 151 et however, court, and the district applied cannot be to cases or recognize that most of our sister circuits overlooks, the RLA. The Union can contract to ex- employees unions and however, important instance in which empt certain claims from clearly so. In Hawaiian did through bargained-for CBAs. See their Airlines, Court, previous- as discussed Ass’n, Air Air Line Pilots Int’l Delta ly, preemp- its NLRA explicitly extended (D.C.Cir. Lines, Inc., F.2d 92-95 RLA, tion while noting doctrine Airlines, Inc., 1988); Whitaker Amer. “are not identical ... two statutes (11th Cir.2002) (hold- 285 F.3d 946-47 statutes, the purposes common of the two proba- parties had excluded ing where parallel development RLA NLRA discharge tionary pilots griеving dur- law, desirability preemption and the period ing probationary plaintiff could a uniform law law having common of labor point provision to no of CBA that was support preemption application [of discharge violated his and thus the preemption NLRA in RLA cases doctrine] claim did not arise under the CBA and was as well.” Hawaiian arbitration); dispute subject not a minor 263 n. courts Other Airlines, Inc., In re 484 F.3d Continental (3d Cir.2007) (“The recognized similarity. have also See RLA does not Air- Indep. Ass’n Cont’l Pilots v. Cont’l preliminary question of dispense with the Cir.1998) (3d lines, n. 8 155 F.3d arbitrability,” and therefore court must ex- arbitra- (explaining ‘procedural “the parties see have amine CBA to whether bility’ mainstay long doctrine ... question). agreed arbitrate jurisprudence, appli- NLRA has been held also v. American See Bonin Cir.1980) (5th of by to RLA other courts (recognizing F.2d 635 cable cases cases).9 provisions apply only appeals listing RLA’s to as well” and arbitration employers. opinion putes 9. The Court’s in Interna- between railroad unions and Machinists, solely The Union asks to our decision tional Ass’n AFL-CIO Central us focus of Airlines, Congressional purpose on of uniform dis- 372 U.S. 83 S.Ct. 10 the court, (1963), industry pute as by L.Ed.2d cited the district resolution in the railroad problem conveys history general by is of and its Central Airlines. The thе the RLA described streamlining settling subsequent precedent has Supreme Court purpose of and labor dis- sum, application Agreement.” an air and its em of this In carrier Art. 23(1). 23(2) may, provides, Art. union under basic contract As the CBA ployees’ a principles, agree grievance to exclude written composed arbitration three and “(1) (2) facts, parts: relevant from and arbi the the con- certain Lines, See, e.g. provisions alleged tract have tration. Delta Air to been vio- (3) lated, specific remedy Once the have and the parties request- F.2d 92-95. so, case, ed.” In agreed any dispute grievances to еxcluded does this two do were any by reflecting filed two right separate not arise from conferred the and distinct case, agreed respect interpretation In parties CBA. this the with to the 13(4) 12(1) through Agreement. Arts. and to the CBA’s for failure to obtain exclude terminations 15, 2007, griev- The time extension process, ATP from arbitration and (1) ance alleges Hilton was not prop- dispute over a termination for fail thus erly paid given enough obtain an ATP ure to obtain an does not arise from ATP, retaliatory manner, in a treated any right by CBA. conferred With and was threatened with termination for mind, backdrop proceed we to ex ATP; (2) fаilure to obtain lists Articles the two amine the differences between (in 1, 3,12 text alleged), 19, of the facts grievances.10 24 as provisions violated; and The CBA as “a dis- and demands defines Hilton be made respect wages or whole for lost benefits pute and from perfectly principles probationary pilots made clear that elude same class at —the interpretation developed Capraro— grieving issue contract under the from their dis RLA, through charges apply LMRA cases under the SBA. Tex Airlines, See, Flight apply e.g. we Int'l Inc. v. and thus must them here. Assoc. Attend ants, (5th 1982), affirming 667 F.2d 1169 Cir. Hawaiian 512 U.S. at 2239; Lueck, 1694; Flight Texas Int’l Inc. v. Assoc. 471 U.S. at Attendants, (S.D.Tex.1980). F.Supp. Linglе, 108 S.Ct. 1877. court, Union, place and the district also parties agreed 10. have district weight Capraro inordinate United Parcel arbitrability court determine the of each of Co., (3rd F.2d Service 335-36 Cir. grievances underlying dispute the two and its 1993), in the Third held which Circuit that a parties agree at the same time. The did not exempt categories entire cannot em- any purpose; combine them other ployees grievance process from the RLA judicially not the court did order them to be probation- exempting that therefore a clause Wright consolidated. See 9A Alan Charles & ary pilots grieving Miller, discharges their Arthur R. Federal Practice Proce- might deprive pilots (3d properly Supp.2009). dure fact, ed. 2008 & In deprive substantive but agreement parties could not them despite this briefed procedural right of the take their conceded- separately their summary ly judgment meritless claim to the SBA. The Third motions to the district court. Ac- Circuit, however, although explicit- parties' cordingly, it has ‍​​‌‌‌‌‌‌​​‌‌‌‌‌‌​​‌​‌​‌​‌​​​​​‌​‌​‌‌‌‌​​‌‌‌‌‌‌‌‌‍have the ly Capraro, subsequently together overruled has held matters considered decided did repeatedly question par- legal that the what the affect the nature and effect of each ties arbitrate underlying decided to is for court to and its Pilots, See, e.g., Hocking decide. Continental 155 F.3d at 692 the RLA. Co. v. & Swift (holding question parties ValleyRy., of what (1917) ("If agreed stipulation to arbitrate is one for court to consid- L.Ed. 722 is to be case); agreement concerning legal er in RLA see In treated also re Continental as an Airlines, Inc., (3d facts, obviously inoper- 484 F.3d Cir. effect of admitted it is Further, 2007). ative, adopted our own circuit has since court cannot be controlled reasoning subsidiary question and affirmed the of a district court counsel on a of law.”). opinion holding validly that a CBA could ex- 15, 2007, grievance time 2007, May an extension 30, given and be extension April ATP. requests wages pаy dating to obtain his and back of at six months least The dis- April June 1, 2007, griev discharge The June requests charge grievance wages and back termination, ance, re after Hilton’s filed date, May from a different pay but, allegations, same peats some 1, 2007, importantly, dis- More June (1) alleges that Care more it importantly, grievance implicitly require would charge May terminated Hilton on wrongfully Flite because it demands reinstatement (2) 27, 2007; provisions lists the same to time obtain given Hilton be additional May allegedly as the the CBA violated ATP, if only would make which sense grievance, and time extension working again. for CareFlite oncе he were pay requests, along with back implieity Thus, grievance the later seeks different reinstatement. The June wages, relief, viz., reinstatement, and requests calls grievance necessarily discharge pay wages period for a different back discharge Hilton’s setting for aside Since, previously for the of time. reasons it calls reinstating employment his because opinion, Hilton no explained in this has him a extension giving six-month right grieve the RLA to his under ATP, only which he would need obtain his ATP, failure termination for to obtain an Thus, if employed CareFlite. no right he therefore has obtain back interpre calls for an grievanсe necessarily termination, much pay from the date his 12(1) and application tation and of Articles reinstated, be less to because termi- 13(4). grievable itself was not or nation arbitra- differences griev- the two (And under the RLA. of course he has ble they sep- ances be require considered six right no additional months First, arately. two en- the facts describe no right an ATP because he has obtain tirely being different situations. Hilton’s back.) job grieve Consequently, for his allegedly unfairly deprived of additional compel the Union cannot arbitration on the merely time obtain an ATP and “threat- 1, 2007, grievance. See discharge Junе for lack an ATP ened” with termination Hawaiian may may particular not have violated a S.Ct. 2239. (the right arising from the CBA merits for an are arbitrator 15, 2007, May But the time extension decide). Also, clearly is such a a different matter. It is be- grievance is 13(4) 12(1) by Articles not excluded yond dispute only that had Hilton filed grieve it does not or seek arbitra- because 15, 2007, May grievance, time it extension Thus, dispute. tion of a re- termination would arbitrable under the RLA. merits, gardless its allegations Thus, filing no that his there is reason grievable Hilton’s ones. But termination 1, 2007, non-grievable discharge June failure May to obtain inde- grievance should interfere ATP, discharge griev- аs the June pendent interpretation and ance did alleges, right not violate grievable extension 12(1) from the because Articles Further, grievance. the CBA does not 13(4) “non-grieva- make such termination grievances an employ- limit the number forego- ble and non-arbitrable” our Thus is no legal ee can file. there ing analysis. reason that Hilton common sense should addition, requested In his to arbitrate his valid the relief each lose first simply because he later filed of the two is different. grievance is not grievance that arbitrable. manner second same as did the 15, 2007, griev- to district April Pursuant Hilton’s courh—as a minor ance, right frоm may he have a to have Care- of the CBA. But respect prohibit him with because the RLA Flite’s treatment of does Care- adequate time for the ATP Flite and the from prepare agreeing test to ex- unfair, unjust, and clude discriminato- certain minor from declared arbitra- tion, any I ry; wages to be made whole for lost would hold that the June April grievance challenging and benefits between and Hilton’s termination 27, 2007; May other is not relief lawful arbitrable. Tex. Int’l See Attendants, Flight feasible RLA and Inc. v. under the Ass’n (5th Cir.1982) curiam) (af- depending on how the arbitrator F.2d 1169 (per construes request firming for relief and its opinion merits. without the district court’s grievanсe judgment the merits of Hilton’s first While the RLA did not invalidate decide, are not for us to Hilton has a air carrier and by have those its employees claims decided arbitra- that excluded probationary as the provides. employees utilizing tor

procedures challenge a disciplinary ac- discharge); IV. tion or CONCLUSION see also Tex. Int’l Air- lines, Attendants, Inc. v. Flight Ass’n of discharge The June (S.D.Tex.1980). F.Supp. validly excluded from arbitration pur- to CBA suant Article Section however,

May grievance, was not exempted subject therefore

so and is Any independent

arbitration. state or fed- against law has

eral claims Hilton Care-

Flite for its treatment of him that do not

arise from the are not governed CBA and the RLA requirements, extent the district court finds that any

exist, may due considered course district court on remand. See Hawai- 258-66,

iаn For foregoing reasons we AF- Sharon TAYLOR; Douglas James Book- in part, er; Lowry Briley; part, FIRM REVERSE Brown; ‍​​‌‌‌‌‌‌​​‌‌‌‌‌‌​​‌​‌​‌​‌​​​​​‌​‌​‌‌‌‌​​‌‌‌‌‌‌‌‌‍Twilah REMAND for al., proceedings further consis- Clary; James D. Plaintiffs-Ap- et opinion. tent pellants, ELROD,

JENNIFER WALKER Judge, concurring. Circuit CORPORATION; ACXIOM Choice- concur in Judge I Dennis’s ultimate con- Tech., Point Public Records Database (1) griev- clusions Inc.; Records, ChoicePoint Public arbitrable, ance is Inc.; ChoicePoint, Inc.; June ChoicePoint is not Services, Inc.; Seisint, Inc.; arbitrable because it was LexisNex- validly pursuant excluded from arbitration Inc.; Elsevier, Systems, is Reed Chex I, Article Section 1 the CBA. Corporation, a Minnesota Defen- however, analyze would the June dants-Appellees.

Case Details

Case Name: Careflite v. Office & Professional Employees International Union

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 13, 2010

Citation: 612 F.3d 314

Docket Number: 08-10807

Court Abbreviation: 5th Cir.