Memorandum Opinion and Order
Wanda Santiago, a retired flight attendant, brought this suit under the Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq., against United Air Lines, Inc., her former employer, and the Association of Flight Attendants — CWA (“AFA”), the union that represents United flight attendants. Doc. 1. Santiago alleges that United violated the RLA by failing to submit to arbitration her grievance regarding recent changes to United’s employee pass travel policy — changes that, Santiago asserts, violate the collective bargaining agreement between United and the AFA (“CBA”) and benefit current employees at the expense of retirees. Id. at 11-13. Santiago asks the court to compel United to submit the dispute to arbitration before the United-AFA System Board of Adjustment (“System Board”). Id. at 16; Doc. 147 at ¶4. Santiago’s complaint also claimed that the AFA violated its duty of fair representation under the RLA by refusing to assist her in pursuing her grievance, but the court dismissed that claim, reasoning that the AFA owed her no duty of fair representation because she was no longer employed by United when she sought to pursue her grievance.
United has moved for summary judgment. Doc. 128. Because none of United’s proposed grounds for summary judgment is persuasive, the motion is denied. Moreover, although Santiago has not moved for summary judgment, the court gives United notice pursuant to Federal Rule of Civil Procedure 56(f) that the court is considering granting summary judgment in Santiago’s favor and offers United an opportunity to respond.
Background
The following states the facts as favorably to Santiago as the record and Local Rule 56.1 allow. See Hanners v. Trent,
Like other airlines, United offers a “pass travel” program to its current and former employees and their eligible travel companions, which permits them to fly on United flights for free or reduced rates if open seats are available. Id. at ¶ 10. During Santiago’s employment, United issued publications to current and former employees outlining the terms and conditions of the pass travel policy and expressly reserving the right to eliminate or modify the policy at any time. Id. at ¶¶ 11-16. United has modified the policy several times over the years. Id. at ¶¶ 17-22. When United made such changes, it issued individual letters, posted general notices, and sent email notifications to current and former employees, reminding them that the pass travel policy is subject to change. Id. at ¶ 23.
The CBA’s Section 4.M addresses United’s pass travel policy, and states:
It is agreed that the pass transportation regulations as established by Company policy, effective January 1, 1987, will apply to Flight Attendants and will not be substantially changed or discontinued during the term of this Agreement without first advising the Union the reason therefor and affording the Union an opportunity to confer with the Company.
Id. at ¶ 40. Section 4.M has remained in effect without material modification since 1974, three years before Santiago joined United. Ibid. Because it prefers to maintain a single pass travel policy for all employee groups, United has steadfastly refused to negotiate with the unions representing its employees over the substance of the policy, and instead simply provides notice of the proposed changes. Id. at ¶ 41.
After merging with Continental Airlines in 2010, id. at ¶ 2, United determined that it would again modify the pass travel policy so that current and former employees of both United and Continental would be covered by the same policy, id. at ¶ 24. At the time of the merger, the two airlines’ pass travel programs differed in several respects, including the relative boarding priorities accorded to current employees versus retirees. Id. at ¶ 25. Under Continental’s program, current employees boarded before retirees, while under United’s program, retirees like Santiago who had worked for United for more than 25 years received higher priority than current employees or retirees with a shorter period of service. Id. at ¶¶ 26-27. After the merger, United decided that the best course would be to adopt elements of Continental’s policy into a combined pass travel program for the entire company. Id. at ¶ 28. United announced the new program in March 2011-, which was to take effect when the two airlines began operating together under the United name in March 2012. Id. at ¶ 29. Under the new program, every current employee and retiree is given eight one-way travel passes each year, which entitle them to free travel with the highest boarding priority level. Id. at ¶ 30. Passes received but not used in one year may be used in later years. Ibid. For flights taken beyond those eight flights per year, current employees have boarding priority over retirees. Id. at ¶,31. “A substantial majority of United’s flights are able to accommodate all space available travelers, in which case boarding [priority] does not affect the ability to travel on that particular flight.” Id. at ¶ 32. The new program expands the number of flights and destinations available to employees and retirees using free-passes. Id. at ¶ 33.
As required by Section 4.M of the CBA, a United official met with union representatives to review the new pass travel program prior to its implementation. Id. at ¶ 43. The ÁFA did not object to the new program or allege that it violated the CBA. Ibid. Santiago did object, first in a letter to United’s managing director of labor relations, then in a second letter to an AFA officer, and finally by filing this lawsuit. Id. at ¶¶ 36-37.
Discussion
Before reaching United’s arguments for summary judgment, the court will address two preliminary matters. The first is United’s failure to comply with Local Rule 56.2, which requires that “[a]ny party moving for summary judgment against a party proceeding pro se shall serve and file as a separate document, together with the papers in support of the motion, a ‘Notice to Pro Se Litigant Opposing Motion for Summary Judgment’ in the form indicated below.” N.D. Ill. L.R. 56.2. The prescribed notice explains the nature of a summary judgment motion and tells the pro se litigant what she must do to prevent summary judgment. Santiago, who is pro se, recognized in her summary judgment response that United failed to provide her with the Local Rule 56.2 notice, and asked that United’s motion be
The second preliminary matter is Santiago’s motion to compel further discovery from United and her request under Federal Rule of Civil Procedure 56(d) (which she refers to under its former designation, Rule 56(f)) that the court defer ruling on the summary judgment motion until she can gather more facts to oppose the motion. Docs. 141, 143, 152. Rule 56(d) provides that a court may defer consideration of a summary judgment motion “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” Fed.R.Civ.P. 56(d) (emphasis added). Santiago’s filings describe a wide range of discovery that she claims United has wrongfully denied her, including the deposition of United CEO Jeff Smisek. Doc. 141 at 13. But she does not explain what facts “essential to justify [her] opposition” she thinks she might be able to extract from the allegedly withheld documents and depositions. Santiago’s Rule 56(d) motion accordingly is denied. See Waterloo Furniture Components, Ltd. v. Haworth, Inc.,
Santiago claims that she has a contractual right under the CBA to the higher priority accorded her, as a retiree, by the pass travel policy In effect at United prior to its merger with Continental, and that United violated the RLA by refusing to submit the matter to arbitration before the System Board. Doc. 1 at 11-13. The RLA provides in relevant part:
[Disputes 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, ... shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to an appropriate adjustment board, as hereinafter provided, with a full statement of the facts and supporting data bearing upon the disputes.
45 U.S.C. § 184. Section 184 requires air carriers and the unions that represent their employees to jointly establish such adjustment boards, as United and the AFA have done here by establishing the
First, United asserts that Santiago’s position that the CBA precludes United from diminishing her pass travel priority rights is so weak that there is no need to even let the System Board consider it. Doc. 129 at 17-19. United, says that the court should act as a “gatekeeper,” meaning that the court’s “role in the present matter is to decide whether Santiago’s claim that the CBA prohibits modification of United’s pass travel policy has sufficient arguable merit that it must be resolved by an adjustment board[,] or whether Santiago’s position is ‘frivolous’ or ‘obviously insubstantial.’ ” Id. at 19.
United’s argument runs headlong into the holding of Consolidated Rail Corp. v. Ry. Labor Exec. Ass’n,
There can be no doubt that Santiago’s grievance qualifies as a minor dispute. Conrail endorses the following test for determining whether a dispute is major or minor:
If the disputed action of one of the parties can “arguably” be justified by the existing agreement or, in somewhat different statement, if the contention that the labor contract sanctions the disputed action is not “obviously insubstantial”, the controversy is a minor dispute within the exclusive province of the [adjustment board].
Conrail recognizes that the line between major and minor disputes may be described in a slightly different, though substantively identical, way: “the line ... looks to whether a claim has been made that the terms of an existing agreement either establish or refute the presence of a right to take the disputed action.”
United’s contrary position rests on a misreading of Conrail. United contends that the “same standard” used by courts to distinguish major from minor disputes also “should apply where a party seeks to compel arbitration.” Doc. 129 at 19. From this premise, and as noted above, United concludes that “the court’s role in the present matter is to decide whether Santiago’s claim that the CBA prohibits modification of United’s pass travel policy has sufficient arguable merit that it must be' resolved by an adjustment board or whether Santiago’s position is ‘frivolous’ or ‘obviously insubstantial.’ ” Ibid. But Conrail uses the term “obviously insubstantial” solely to articulate the test for determining whether the disputed action — most often, the employer’s — gives rise to a minor dispute or a major dispute. See Conrail,
The lone authority cited by United to support its position, CareFlite v. Office & Professional Employees International Union, AFL-CIO,
Both judges in CareFlite rested their shared conclusion (that the dispute did not have to be arbitrated) on the CBA provision making the parties’ dispute non-arbitrable. In this case, by contrast, United ■has not identified any CBA provision purporting to limit the scope of arbitration; rather, it asks the court to rule on the merits of Santiago’s interpretation of the CBA’s pass travel program provision as a prelude to finding that her interpretation is so weak that arbitration should not go forward. Neither judge’s opinion in CareFlite supports that view.
The decisions cited by United to support its second argument are inapposite. They all go to whether United’s interpretation of the CBA is correct as a substantive matter — that is, whether the CBA allows the AFA to consent to a new CBA and thereby wipe out whatever rights retirees like Santiago may have had under the earlier CBA — while the dispositive question here is which tribunal, the court or the System Board, has jurisdiction to decide that substantive question. In Rakestraw v. United Airlines, Inc.,
The other two cases cited by United, In re UAL Corp.,
Third, United argues that “as a retiree, Santiago has no right to compel arbitration under the RLA unless the rights [that she claims] vested during her employment, and the CBA did not create any vested rights to pass travel upon retirement.” Doc. 129 at 22. The legal backdrop of this argument was addressed
United argues that Santiago is not an “employee” under Day, that she therefore is not an “employee” under § 184, and therefore that § 184 gives her no entitlement to proceed before the System Board. And the reason why Santiago is not an “employee” under Day, United says, is that the pass travel priority benefits she claims did not “accrue” during her employment because the CBA does not convey any entitlement to maintain a particular boarding priority, meaning that the claimed rights never “accrued” at all. Doc. 129 at 23-24.
The court rejected United’s argument at the Rule 12(b)(6) stage, and does the same, albeit for different reasons, on summary judgment. Resolving United’s argument in its favor would require the court to find that the CBA does not entitle retirees to maintain any particular boarding priority, and thus would require the court to evaluate the substantive merits of Santiago’s claim, as a prelude to determining whether the claim is subject to arbitration before the System Board. United has not provided, and the court has not found, any authority that would allow the court to follow that course. If courts did follow that course, the Day exception would be eviscerated. In cases where a retiree seeks to assert a right against her former employer before an adjustment board, the employer will argue that the right does not exist, for if the employer conceded that the right did exist, there often if not always would be nothing to arbitrate. And if a court could prevent arbitration by deciding that the asserted right did not exist under the CBA and therefore could not have accrued during the retiree’s employment, then the adjustment board’s exclusive jurisdiction over the interpretation of CBAs in minor disputes would be usurped and nullified with respect to retirees, and Day would have little or no effect.
That cannot be what the Supreme Court intended in Day. The better reading of that decision is that a retiree is an “employee” under Day if the right she asserts accrued during her employment, if it ac
Fourth, United argues that “even if Santiago were an active employee, she would have no right to obtain a System Board hearing ... because the CBA does not allow an employee to pursue a grievance to arbitration without AFA’s approval and because Santiago failed to file a timely grievance or process such grievance as required under the CBA.” Doc. 129 at 24. United’s initial suggestion — that the CBA does not allow individual employees to pursue grievances to arbitration without the AFA’s approval — raises a question of law: Does the RLA give individual airline employees a statutory right to arbitration before an adjustment board? The answer is “yes,” and so any provisions in the CBA purporting to subject that right to the AFA’s approval are invalid and unenforceable.
That an individual employee (as Santiago is under Day) has a right to bring a grievance before an adjustment board is evident from the text of § 184:
The disputes between an employee or group of employees and a carrier or group of carriers by air growing out of grievances ... shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to an appropriate adjustment board ....
45 U.S.C. § 184 (emphases added). Section 184 provides that when a dispute arises between “an employee” and “a carrier” and is not amicably resolved, “either party” may unilaterally bring that dispute before the adjustment board. United argues that the term “either party” is “a clear reference to the carrier and union.” Doc. 129 at 27. That argument cannot be reconciled with the statute. The initial portion of the above-quoted passage refers to “disputes between an employee or group of employees and a carrier or group of carriers by air,” and so the later reference to “parties” plainly refers to both “an employee” (an individual like Santiago, who is an employee under Day) and a “group of employees” (either a group of individuals or a union). Nothing in § 184 suggests that the union and employer could agree to place a limitation upon an individual employee’s right to unilaterally seek relief before an adjustment board.
The parties have not cited and the court has not found any Supreme Court or Seventh Circuit decision on point. Doc. 129 at 27 (“the Seventh Circuit has never expressly addressed the question under [§ 184]”). In Capraro v. United Parcel Service Co.,
[T]he RLA reflects a clear decision by Congress that minor disputes should be arbitrated, not litigated.... [H]owever, the RLA also reflects a strong congressional interest in seeing that employees are not left “remediless” and without a forum to present their grievances. Courts must keep both of these congressional objectives in mind, and one shouldbe sacrificed to the other only when there is no realistic alternative....
[T]he grievance and arbitration process is not optional under the RLA. Congress intended the RLA’s procedures, particularly the Adjustment Boards, to be the exclusive means of dealing with minor matters involving the interpretation of a collective bargaining agreement and for all aggrieved employees to have access to such procedures. It necessarily follows that an employer and a union, through a negotiated collective bargaining agreement, cannot deprive a category of employees of access to the grievance and arbitration process. Thus, if the collective bargaining agreement here is read to deny such access, the relevant clauses, to that extent, are invalid and unenforceable. Therefore, if the Adjustment Board were to refuse to entertain Capraro’s claim (or if UPS were to refuse to participate in the arbitration proceedings), Capraro would be entitled to a judicial order compelling arbitration. Such an order would serve the competing policies of ensuring that employees are not left remediless, and that minor disputes are resolved through arbitration rather than litigation.
Id. at 336-37 (citations and footnotes omitted). At least two district courts have followed Capraro. See Brady v. Allied Pilots Ass’n,
In advancing its contrary position, United cites Martin v. American Airlines, Inc.,
Martin contends that the RLA provides airline employees with a statutory right to pursue arbitration individually before an airline’s system board of adjustment. We disagree. The RLA provides railroad employees the right to pursue arbitration individually before the National Railroad Adjustment Board. 45 U.S.C. § 153 First (j). However, the RLA specifically provides that § 153 is not applicable to air carriers. 45 U.S.C. §§ 181 and 182. We will not ignore the express statutory exclusions in §§ 181 and 182 in order to apply § 153 to the airline industry.
If written request is made upon any individual carrier by the representative of any craft or class of employees of such carrier for the establishment of a special board of adjustment to resolve disputes otherwise referable to the Adjustment Board, or any dispute which has been pending before the Adjustment Board for twelve months from the date the dispute (claim) is received by the Board, or if any carrier makes such a request upon any such representative, the carrier or the representative upon whom such request is made shall join in an agreement establishing such a board within thirty days from the date such request is made.
45 U.S.C. § 153, Second (emphases added). O’Neill focused on the emphasized text in holding that “[u]nder the terms of § 3 Second of the Act, an individual employee has no right to bring a matter before a special adjustment board. Only a rail carrier or ‘the representative of any craft or class of employees’ are authorized by the statute to bring a matter before a special adjustment board.”
United also contends that Whitaker v. American Airlines, Inc.,
United next resorts to policy, contending that there are “strong practical and policy reasons to limit the right of individuals to invoke arbitration before a contractually-created adjustment board.” Doc. 129 at 28. At base, United’s policy argument is that § 184 requires air carriers and unions to establish and maintain adjustment boards, in contrast to the government-funded National Railroad Adjustment Board established by § 153 to handle
For these reasons, the court agrees with Capraro that the text of § 184 precludes United from deciding, on its own or with the AFA, to bar Santiago from bringing her grievance to the System Board. And although United gestures at what might be an alternate ground for summary judgment, that “Santiago failed to file a timely grievance or process such grievance as required under the CBA,” it does nothing to develop that argument, Doc. 129 at 24, which results in a forfeiture, at least for purposes of this summary judgment motion. See Judge v. Quinn,
Fifth and finally, United argues that the court’s dismissal of Santiago’s claims against AFA “precludes her from pursuing claims against United.” Doc. 129 at 29. United says that “an order aimed solely at United would be completely unenforceable because United cannot conduct a System Board hearing without AFA’s active participation.” Ibid.
This. argument is a nonstarter. When granting the AFA’s motion to dismiss, the court was operating under the belief, abetted by the AFA’s briefs, that Santiago could proceed before the System Board independently, without the AFA having to assist her.
United discusses decisions holding “that if the duty of fair representation claims against the union are dismissed, the breach of contract claims against the employer cannot stand.” Doc. 129 at 29. For instance, in United Independent Flight Officers, Inc. v. United Air Lines, Inc.,
Read in context, the decision makes perfect sense: if the plaintiffs claim is that the union is liable for breaching its duty of fair representation and the airline is liable as a party to that breach, then a determination that the union committed no breach necessarily entails that the airline was not a party to any breach and so is not liable. Cf. Freed v. Weiss,
At any rate, in dismissing Santiago’s claim against the AFA, the court concluded not that the AFA was fairly representing Santiago, but rather that the AFA was under no obligation to represent her fairly because it was not representing her at all and had no duty to do so.
Conclusion
For the foregoing reasons, United’s motion for summary judgment is denied. Furthermore, United is hereby informed pursuant to Rule 56(f) that the court believes, in light of the facts and law discussed above, that Santiago is entitled to summary judgment and to an injunction requiring United to submit her grievance to arbitration before the System Board. If United disagrees, it is invited to file a brief explaining why there is a genuine dispute as to some material fact and/or why Santiago is not entitled to judgment as a matter of law. United shall file its brief by September 19, 2013; Santiago may respond by October 10, 2013.