International Union, et al v. Vought Aircraft Industries Inc

Filing

UNPUBLISHED OPINION FILED. [09-11210 Affirmed in Part; Vacated & Dismissed ] Judge: EHJ , Judge: TMR , Judge: CH Mandate pull date is 12/20/2010 [09-11210]

International Union, et ase: Vought Aircraft Industries Inc C al v. 09-11210 Document: 00511305761

Page: 1 Date Filed: 11/29/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 29, 2010 N o . 09-11210 Lyle W. Cayce Clerk

I N T E R N A T I O N A L UNION, UNITED AUTOMOBILE, AEROSPACE & A G R I C U L T U R A L IMPLEMENT WORKERS OF AMERICA; I N T E R N A T I O N A L UNION, UNITED AUTOMOBILE, AEROSPACE & A G R I C U L T U R A L IMPLEMENT WORKERS OF AMERICA LOCAL 848, P la in t iffs - Appellees v. V O U G H T AIRCRAFT INDUSTRIES INC, D e fe n d a n t - Appellant

A p p e a l from the United States District Court for the Northern District of Texas U .S .D .C . No. 3:09-cv-00299

B e fo r e JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges. H A Y N E S , Circuit Judge:* V o u g h t Aircraft Industries, Inc., ("Vought") appeals from the district c o u r t's judgment compelling Vought to arbitrate grievances filed by the In tern at ion al Union, United Automobile, Aerospace, and Agricultural

I m p le m e n t Workers of America ("UAW") and its Local Union 848 (collectively, t h e "Union") on behalf of a former employee. We conclude that the district court
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Dockets.Justia.com

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No. 09-11210 c o r r e c t ly determined the issues presented. Because one of the two former

e m p lo y e e s in question died prior to the issuance of this opinion, we will dismiss t h e portion of the case that involves him. I . Background V o u g h t operates a manufacturing facility in Dallas, Texas. The UAW and it s Local Union 848 are the exclusive collective bargaining agents for certain d e f in e d classes of Vought employees. Vought and the Union have entered m u lt ip le , successive collective bargaining agreements ("CBA"). At all times r e le v a n t to this litigation, the CBA contained a seniority provision stating that " a salaried employee may return to the bargaining unit at the highest c la s s ific a t io n held within the job family that seniority entitled him in accordance w it h the layoff procedure . . . ." The CBA also contains a grievance procedure w h ic h requires Vought and the Union to arbitrate unresolved grievances. The C B A expressly excludes supervisors from the bargaining unit. Chester Kirksey ("Kirksey") was at one point an hourly bargaining unit e m p lo y e e covered by the CBA.1 In 1996, Kirksey transferred out of the collective b a r g a in in g unit and into a salaried supervisor position. Kirksey remained a s u p e r v is o r with Vought until he was laid off in June 2006. After Kirksey was la id off, he sought to return to a non-supervisory job within the bargaining unit. Vought refused to return Kirksey to the bargaining unit, and the Union filed a g r ie v a n c e on his behalf alleging that he had a right to return to the collective b a r g a in in g unit pursuant to the seniority provision in the CBA.2 Vought refused

The Union initially filed grievances on behalf of two former employees: Kirksey and Eugene Neeper ("Neeper"). Neeper perished in a motorcycle accident earlier this year. Therefore, all claims brought on behalf of Neeper have become moot and the district court's decision regarding him is vacated and the case dismissed as to that portion. The question of whether the seniority provision contains a right of return for former bargaining-unit employees is not before the court, and we make no holdings as to that issue. See Int'l Ass'n of Machinists, Lodge No. 2504 v. Intercontinental Mfg. Co., 812 F.2d 219, 221 (5th Cir. 1987) ("[C]ourts should not determine the merits of the underlying grievance[.]").
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No. 09-11210 t o process the grievance, arguing instead that, as a supervisor, Kirksey was not c o v e r e d by the CBA. The Union, rather than petitioning the National Labor R e la t io n s Board ("NLRB") for a unit clarification or unfair labor practice charge, file d suit in district court to compel Vought to arbitrate the grievance. In district court, Vought initially filed a motion to dismiss for lack of s u b je c t matter jurisdiction and lack of standing. The only argument raised c o n c e r n in g the Union's standing was whether it could represent a member who h a s left the collective bargaining unit. At no time in the district court did V o u g h t argue that the Union lacked Kirksey's consent to sue. The district court d e n ie d Vought's motion. Later, Vought and the Union filed cross-motions for s u m m a r y judgment, and Vought again asserted its jurisdictional arguments. The district court granted the Union's motion, denied Vought's motion, and e n te r e d a judgment compelling arbitration. Vought timely appealed. I I . Analysis V o u g h t re-urges its jurisdictional arguments on appeal. Vought first a r g u e s that the federal courts have no subject matter jurisdiction because the g r ie v a n c e s are primarily representational and, therefore, the National Labor R e la t io n s Board ("NLRB") has exclusive jurisdiction. Secondly, Vought argues t h a t the Union lacks standing to assert the claims on behalf of a person no lo n g e r in the unit. A. Did the district court have jurisdiction to hear this kind of case? " F e d e r a l courts are courts of limited jurisdiction, and absent jurisdiction c o n fe r r e d by statute, lack the power to adjudicate claims." Stockman v. Fed. E le c tio n Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). We review claimed defects o f subject matter jurisdiction de novo. Qureshi v. United States, 600 F.3d 523, 5 2 4 (5th Cir. 2010). The Union brought this claim under section 301 of the Labor Management R e la t io n s Act of 1947. 29 U.S.C. § 185. Under this provision, federal courts have 3

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No. 09-11210 ju r is d ic t io n over "[s]uits for violation of contracts between an employer and a la b o r organization representing employees." Id. The Union asserts that this s u it simply purports to enforce Kirksey's contractual right to return to the b a r g a in in g unit. Vought, on the other hand, argues that the issue presented is p r im a r ily representational because it requires an initial determination that K ir k s e y is represented by the Union. Vought argues that the district court t h e r e fo r e lacked jurisdiction because "[t]he National Labor Relations Act vests e x c lu s iv e authority in the NLRB to pass on issues of representation." W. PointP e p p e r e ll, Inc. v. Textile Workers Union, 559 F.2d 304, 307 (5th Cir. 1977); see a ls o 29 U.S.C. § 159. Vought claims that the present suit is an attempt to make a n end-run around the NLRB under the guise of a contractual dispute. See W. P o in t-P e p p e r e ll, 559 F.2d at 306 ("Courts should not decide questions beyond t h e ir jurisdiction under the guise of construing contracts under Section 301."). We agree with the district court that the issue presented is contractual. Unlike cases in which courts have declined to exercise jurisdiction because of r e p r e s e n t a t io n a l issues, resolution of the present issue does not require us to d e t e r m in e whether the grievant, Kirksey, is a member of the bargaining unit. The Union concedes that he is not. Rather, the Union asserts that Kirksey, as a former bargaining-unit employee, accrued a right under the CBA to return to t h e bargaining unit after leaving it for a salaried position. Such a question in v o lv e s interpreting the CBA, not determining who is covered by it,3 and is thus c o n tr a c tu a l.

To the extent that ruling on a contractual issue in a collective bargaining agreement requires determining that a grievant has rights under the CBA, the question does not always render the issue impermissibly representational. Cf. Local Union No. 1846 of the United Bhd. of Carpenters v. Pratt-Farnsworth, Inc., 690 F.2d 489, 518 (5th Cir. 1982) ("If anything, the power to enforce a contract must necessarily include the ability to decide who is bound by the contract.")

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No. 09-11210 T h e fact that Kirksey is no longer in the bargaining unit is not fatal to the U n io n 's claims. Former employees, though no longer a part of the bargaining u n it , may have contractual rights pursuant to a CBA. See Allied Chem. & Alkali W o r k e r s , Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 181 n.20 (1 9 7 1 ) (retirees have a federal remedy under § 301); Meza v. Gen. Battery Corp., 9 0 8 F.2d 1262 (5th Cir. 1990) (permitting suit by former employee for disability b e n e fits set out in CBA); see also Woosley v. Avco Corp., 944 F.2d 313, 317 (6th C ir . 1991) (former supervisors "should be treated as members [of the bargaining u n it ] in order to assert their right to return to the unit.");4 Peerless Pressed Metal C o r p . v. Int'l Union of Elec., Radio, & Mach. Workers, 451 F.2d 19, 21 (1st Cir. 1 9 7 1 ) (affirming order to compel arbitration where "the agreement could be read t o entitle [a supervisor] to reinstatement" into the bargaining unit). Though not e v e r y right in a CBA necessarily extends to former employees, a contractual r ig h t to return to the bargaining unit can logically apply only to employees who h a v e left the bargaining unit and therefore extends to former employees by d e fin itio n . Even assuming arguendo that the contractual issues in this case may in v o lv e resolution of a representational issue, that is no bar to jurisdiction in this c ir c u it . As this court has noted: W h e r e collateral issues of labor law, such as the determination of t h e appropriateness of a bargaining unit, become essential to the d e t e r m in a t io n of the existence of a breach of contract under the in d e p e n d e n t federal remedy Congress created in section 301, a fe d e r a l court may pass upon the issues under its congressional grant o f jurisdiction notwithstanding the fact that a unit determination by

Before the district court, Vought argued that Woosley is distinguishable because the supervisor in that case was entitled to return, and Kirksey is not. The form of this argument about the meaning of the language in the CBA supports our conclusion that the issue is primarily contractual. However, the substance of this argument goes to the merits of the grievance, and is not properly before the court. See footnote 2, supra.

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No. 09-11210 t h e Board might be available if one of the parties filed an unfair la b o r practice charge or sought a unit clarification. Pratt-Farnsworth, 690 F.2d at 519 (5th Cir. 1982); see also Carey v. Westinghouse E le c . Corp., 375 U.S. 261, 268 (1964) ("[A] suit . . . in the federal courts, as p r o v id e d by § 301 . . . is proper, even though an alternative remedy before the B o a r d is available."). Such exercise of jurisdiction is particularly unlikely to o ffe n d the careful balance of authority between the federal courts and the NLRB w h e r e , as here, the NLRB has made no prior determination nor has proceedings o n the issue currently before it. See Pratt-Farnsworth, 690 F.2d at 515-17 & n .1 2 (noting that jurisdictional issues are different depending on whether the N L R B has intervened or not). The Supreme Court has similarly noted: By allowing the dispute to go to arbitration its fragmentation is a v o id e d to a substantial extent; and those conciliatory measures w h ic h the Congress deemed vital to "industrial peace" and which m a y be dispositive of the entire dispute, are encouraged. The s u p e r io r authority of the [NLRB] may be invoked at any time. Meanwhile, the therapy of arbitration is brought to bear in a c o m p lic a t e d and troubled area. C a r e y , 375 U.S. at 272 (internal citations omitted). We therefore hold that the d is t r ic t court properly determined that it could hear such a case. B . Can the Union Act on Behalf of a Former Member of the Unit? I n the district court, Vought argued unsuccessfully that the Union can n e v e r represent a person no longer in the Unit.5 We agree with the district court t h a t Kirksey's departure from the Unit is not fatal to the Union's ability to r e p r e s e n t him here. The Union may represent former employees, but only with t h e ir consent. Meza, 908 F.2d at 1271 ("Employees who are not exclusively
It stated: "A labor union is not authorized to act on behalf of individuals outside of the bargaining unit."
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No. 09-11210 r e p r e s e n t e d by a union are free to choose whether they want the union to r e p r e s e n t them."); cf. Int'l Ass'n of Machinists v. Goodrich, 410 F.3d 204, 212 (5 t h Cir. 2005) (finding that a union had standing because retirees had given t h e ir express consent to its representation). A showing of consent is required b e c a u s e the Union owed no duty of fair representation to Kirksey. Cooper v. G e n . Motors Corp., 651 F.2d 249, 250 (5th Cir. 1981). T h e issue of whether Kirksey had consented to this suit was raised for the fir s t time at oral argument. Because this issue was raised for the first time on a p p e a l,6 the district court record was not fully developed on this issue. However, K ir k s e y filed an affidavit with this court, to which Vought objects, which e s t a b lis h e s his consent.7 Vought does not offer any basis to conclude that

K ir k s e y 's affidavit is erroneous. Thus, while we might ordinarily remand to d e v e lo p the facts, here we conclude such remand is unnecessary given the p r o c e d u r a l posture of this case. Having waited until oral argument to raise the is s u e of Kirksey's consent, Vought cannot now complain about an affidavit e s t a b lis h in g same. A F F I R M E D as to portion addressing Kirksey, VACATED D I S M IS S E D as to portion addressing Neeper. AND

Although it is true that Vought did contest standing in the district court, it did so on the basis that a union can never represent a former employee not on the basis that this particular employee did not consent to union representation in this lawsuit. After oral argument, the Union filed an affidavit from Kirksey indicating that he requested the Union's handling of his grievance and affirming his desire that the Union continue to represent him. Vought argues that we cannot consider this affidavit, citing Summers v. Earth Island Inst., 129 S. Ct. 1142, 1150 (2009). In that case, the party contesting standing had raised the precise issue before the district court prior to a judgment on the merits, whereas in our case, the issue of consent was not raised until appellate oral argument following a district court decision to send the case to arbitration.
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