Emery v. Allied Pilots Association
Filing
32
ORDER AND OPINION denying 20 Motion to Dismiss; denying 20 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Kenneth A. Marra on 3/19/2017. (ir)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-80243-CIV-MARRA/MATTHEWMAN
KATHY E. EMERY,
Plaintiff,
vs.
ALLIED PILOTS ASSOCIATION,
Defendant.
_________________________/
ORDER AND OPINION DENYING MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant Allied Pilots Association’s
Motion to Dismiss [DE 20]. The Court has carefully considered the motion, response,
reply, entire Court file and is otherwise fully advised in the premises.
INTRODUCTION
Pro se plaintiff, Kathy Emery, (“Plaintiff”) was formerly a pilot employee of
American Airlines (“American”) and is a member of defendant Allied Pilots Association
(“APA”), the certified collective bargaining representative of American pilots. The
Complaint alleges one count: that the APA breached its duty of fair representation in
violation of the Federal Railway Labor Act, 45 U.S.C. § 151, et seq. (hereinafter
“RLA”) in connection with her contractual grievances against American. Plaintiff
alleges, among other things, that the APA refused to discuss her case with her or
accept documents she wanted marked as exhibits for the arbitration, purposely
withheld critical information from her, misled the arbitrator that she would be hiring
private counsel, exhibited open hostility toward her, and has a conflict of interest
with her grievances. As a remedy, she seeks damages including compensation for lost
benefits and wages. APA moves to dismiss the Complaint as unripe on the grounds
that Emery has not yet exhausted the contractual grievance remedies available to her
under the collective bargaining agreement between the APA and American. DE 20.
Fed. R. Civ. P. 12(b)(1).
LEGAL STANDARD
A motion to dismiss for lack of subject matter jurisdiction brought pursuant to
Federal Rule of Civil Procedure 12(b)(1) may present either a facial or a factual
challenge to the complaint. See McElmurray v. Consol. Gov't, 501 F.3d 1244, 1251
(11th Cir. 2007) (“McElmurray”). A factual attack “challenge[s] ‘the existence of
subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside
the pleadings . . . are considered.’” See McElmurray, 501 F.3d at 1251 (quoting
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). If the defendant
challenges the factual predicate of subject matter jurisdiction, this Court may then go
beyond the allegations of the complaint, without converting the motion to dismiss to
a summary judgment proceeding, and consider evidence to determine if there are
facts to support the jurisdictional allegations. Fed. R. Civ. P. 12(b)(1); Flournoy v.
Govt. Nat’l Mortgage Assoc., 156 F. Supp. 3d 1375, 1378 (S.D. Fla. 2016); McGee v.
Cole, 993 F. Supp. 2d 639 (S.D. W. Va. 2014).
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Here, Defendant advances a factual attack on the instant Complaint arguing
this Court lacks subject matter jurisdiction because Plaintiff’s claims are not ripe for
adjudication because they rest upon contingent future events that may not occur as
anticipated. Accordingly, this Court could properly consider evidence outside the
pleadings in determining whether the Complaint should be dismissed, but finds it
unnecessary to do so.
DISCUSSION
The RLA imputes a duty of fair representation that requires a union to treat all
members of the collective bargaining unit fairly, adequately, and in good faith at all
stages of bargaining. Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65 (1991). “Under
this doctrine, the exclusive agent's statutory authority to represent all members of a
designated unit includes a statutory obligation 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.” Vaca v. Sipes, 386
U.S. 171, 177 (1967).
Generally, under the RLA, grievances that arise between employees and air
carriers regarding rates of pay, rules and working conditions are within the exclusive
jurisdiction of the National Railroad Adjustment Board. Andrews v. Louisville and
Nashville Railroad, 406 U.S. 320, 322, 325 (1972) (the RLA mandates exclusive
jurisdiction in the grievance procedure and the National Railroad Adjustment Board
for the resolution of claims which are founded solely and exclusively on the collective
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bargaining agreement); see Union Pacific Railroad v. Sheehan, 439 U.S. 89, 93-94
(1978); Glover v. St. Louis-San Francisco Railway, 393 U.S. 324, 328 (1969)
(“Glover”). When an employee's claim is based upon breach of the collective
bargaining agreement, she is bound by the terms of that agreement which govern the
manner in which contractual rights may be enforced. For this reason, it is settled
that an employee “must at least attempt to exhaust exclusive grievance and
arbitration procedures established by the bargaining agreement.” Glover, 393 U.S. at
330 citing Republic Steel Corp. v. Maddox, 379 U.S. 650 (1965); Vaca v. Sipes, 386
U.S. 171, 184 (1967).
The APA argues that Plaintiff’s claim is unfit for adjudication because any harm
to Plaintiff from APA’s alleged breach of its duty of fair representation is derivative
of, and thus contingent on, her contractual grievance against American. APA argues
that “regardless of whether the arbitral relief potentially available to Emery on her
breach-of-contract claim against American is sufficient to make her whole, it is a
necessary prerequisite for an eventual finding of liability against the APA for
breaching its [duty of fair representation].” DE 28 at 10 of 15. Stated another way,
APA argues, “[u]nless Emery can establish that American wrongly denied her benefits
in violation of the [collective bargaining agreement], she will not have any underlying
injury that the APA could have exacerbated through its alleged breach of its duty of
fair representation.” DE 20 at 13 of 22. APA further argues that Plaintiff “has neither
exhausted her contractual remedies nor satisfied either of the exceptions to the
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exhaustion requirement.” Id. At 15 of 22.
Plaintiff makes two arguments in response: (1) that the circumstances in this
case meet the standards of well recognized exceptions to the exhaustion
requirement,1 and (2) that this is an action against the APA only for breach of its duty
of fair representation, for which the grievance process cannot provide a remedy. The
Court finds Plaintiff’s second argument persuasive.
Inexplicably, the APA does not address the significant body of law that holds it
is unnecessary to examine the exceptions to the rule requiring exhaustion of
administrative remedies when a claim for breach of duty of fair representation is
properly alleged because the rule requiring exhaustion does not apply to discreet
claims such as this against the APA. DelCostello v. Int’l Broth. of Teamsters, 462 U.S.
151, 164 (1983) (the exhaustion “rule works an unacceptable injustice when the union
representing the employee in the grievance/arbitration procedure acts in such a
discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of
fair representation. In such an instance, an employee may bring suit against both the
employer and the union, notwithstanding the outcome or finality of the grievance or
arbitration proceeding”); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567
1
“The [Supreme] Court has made clear . . . that the exhaustion requirement is
subject to a number of exceptions for the variety of situations in which doctrinaire
application of the exhaustion rule would defeat the overall purposes of federal labor
relations policy.” Glover v. St. Louis-San Francisco Ry. Co., 393 U.S. 324, 329-30
(1969).
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(1976) (“[t]he union's breach of duty relieves the employee of an express or implied
requirement that disputes be settled through contractual grievance procedures”);
Czosek v. O'Mara, 397 U.S. 25, 28 (1970) (“claim against the union defendants for the
breach of their duty of fair representation is a discrete claim quite apart from the
right of individual employees expressly extended to them under the Railway Labor Act
to pursue their employer before the Adjustment Board”); Vaca v. Sipes, 386 U.S. 171,
185 (1967); Steele v. Louisville & N.R.R., 323 U.S. 192, 205-207 (1944) (because the
RLA provided no administrative means for resolving disputes between employees and
their own union, such actions could be brought in the courts).
Unlike arbitration panels, which are typically chosen by the
actual parties to the dispute, the Adjustment Boards are
made up of representatives of the unions and employers.
Because of the vested interest of the union representatives
sitting on the Board, it is “beyond cavil” that the Boards
lack the jurisdiction to hear the unfair representation
claim. Czosek, 397 U.S. at 28. It seems equally obvious
that the courts must also recognize that, when unfair
representation claims are asserted in conjunction with the
CBA breach claim, a decision-making body consisting of
union and employer representatives is inherently unlikely
to consist of neutral fact finders to resolve the CBA portion
of the claim. Accordingly, the Court concludes that, in the
instant case, the §1981 and §1985 claims are not subject to
dismissal for failure to pursue the remedies of the Railway
Labor Act.
Middleton v. CSX Corp., 694 F.Supp. 941, 948 (S.D. Ga. 1988); Glover, 393 U.S. at 328
(“It is beyond cavil that a suit against the union for breach of its duty of fair
representation is not within the jurisdiction of the National Railroad Adjustment Board
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or subject to the ordinary rule that administrative remedies should be exhausted
before resort to the courts”). Even the APA even acknowledges that Plaintiff “is
correct that the System Board cannot hear her [duty of fair representation] claim.”
DE 28 at 9 of 15. Accordingly, Plaintiff’s claim against APA is ripe, this Court has
subject matter jurisdiction, and Plaintiff may properly proceed without National
Railroad Adjustment Board review. Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant Allied Pilots Association’s Motion to
Dismiss [DE 20] is DENIED.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 19th day of March, 2017.
_________________________
KENNETH A. MARRA
United States District Judge
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