Rios-O'Donnell

Filing 39

MEMORANDUM Opinion and Order signed by the Honorable Matthew F. Kennelly on 8/24/2011. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

RENEE RIOS-O’DONNELL,
Plaintiff,
vs.
AMERICAN AIRLINES, INC. and
ASSOCIATION OF PROFESSIONAL
FLIGHT ATTENDANTS,
Defendants.

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Case No. 10 C 6219

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Renee Rios-O’Donnell has sued the Association of Professional Flight
Attendants (APFA) for breach of its duty of fair representation (DFR) and American
Airlines, Incorporated (American) for breach of the collective bargaining agreement
(CBA) to which APFA and American are signatories under the Railway Labor Act (RLA),
45 U.S.C. §152.1 American and APFA have moved to dismiss Rios-O’Donnell’s claims
pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the
Court denies defendants’ motions.

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Rios-O’Donnell also purports to sue under section 301 of the Labor
Management Relations Act (LMRA), 29 U.S.C. § 185. Because the RLA applies to
“carriers by air” such as American, the LMRA is inapplicable in this case. Brady v.
Trans World Airlines, Inc., 401 F.2d 87, 92 n. 7 (3d Cir. 1968); United Indep. Flight
Officers, Inc. v. United Air Lines, Inc., 756 F.2d 1274, 1283 (7th Cir. 1985) (noting that
employers subject to the RLA cannot be sued under section 301 of the LMRA).

Background
Rios-O’Donnell is an Illinois resident and former employee of American, a
Delaware corporation with its principal place of business in Texas. APFA is a union that
is the exclusive collective bargaining agent for flight attendants employed by American.
See Am. Compl. ¶¶ 4-6. American hired Rios-O’Donnell as a flight attendant on
September 26, 1984. Id. ¶ 7. She served as an American employee until American
terminated her effective March 29, 2010. Id. With the exception of periods of time
during which she worked in management, Rios-O’Donnell was a member of APFA
throughout her employment with American. Id.
During Rios-O’Donnell’s employment, American and APFA were signatories to a
CBA. Id. ¶ 8. All APFA-affiliated flight attendants are intended third-party beneficiaries
under the CBA. Id. The CBA provides that a flight attendant may have her union
membership dues deducted from her earnings or pay the fees directly to the union. Id.
¶ 9. It also sets forth certain procedures that apply if a APFA-member flight attendant
becomes delinquent in the payment of her dues. These procedures provide that a flight
attendant may be discharged based on non-payment of dues. Specifically, Article 31 of
the CBA states as follows:
The Secretary/Treasurer of APFA shall notify the flight attendant, in
writing, certified mail, return receipt requested, copy to the Vice PresidentEmployee Relations of the Company, that s/he is delinquent in the
payment of . . . membership dues, as specified herein and, accordingly, is
subject to discharge as an employee of the Company. Such letter shall
also notify the flight attendant that s/he must remit the required payment
within thirty (30) days of the date of the mailing of the notice, or be subject
to discharge.

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If upon the expiration of the thirty (30) day period, the flight attendant still
remains delinquent, the President of APFA shall certify, in writing, to the
Vice President-Employee Relations, copy to the flight attendant, that the
flight attendant has failed to remit payment within the grace period allowed
and is, therefore, to be discharged. The Vice President-Employee
Relations shall then take proper steps to discharge such employee from
the service of the Company.
A flight attendant discharged by the Company under the provisions of this
paragraph shall be deemed to have been discharged for cause within the
meaning of the terms and provisions of this Agreement.
Am. Comp. ¶ 9. The CBA states that a discharge under Article 31 can be based only
on the flight attendant’s failure to pay membership dues and not on the denial or
termination of union membership or any other ground. Id.
To contest a discharge under Article 31, a flight attendant must first submit a
written request for review within the period of time specified in the agreement. Id. The
flight attendant’s immediate supervisor then reviews the request and renders a written
decision within ten days. Id. “If the decision is not satisfactory to both the flight
attendant and APFA, then either may appeal the grievance directly to the System Board
of Adjustment [(Systems Board)], established under Article 29 of this Agreement, within
ten (10) days from the date of the decision.” Id.
APFA policy at the relevant time allowed flight attendants to pay their dues and
fees using a “bankcard.” Id. ¶ 10. Pursuant to this policy, in 2003 Rios-O’Donnell
authorized APFA to charge her monthly dues to her bankcard whenever her paycheck
from American was insufficient to cover the dues. Id. ¶ 11. Per Rios-O’Donnell’s
instructions, APFA charged her monthly dues to her bankcard for at least eighteen

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months. Id. ¶ 12. In May 2005, unbeknownst to Rios-O’Donnell, APFA stopped
accepting payment of her dues by bankcard. Id.
Because Rios-O’Donnell’s dues went unpaid, in June 2008 APFA began
proceedings to terminate her employment pursuant to Article 31. Id. ¶ 13. APFA sent
Rios-O’Donnell an alert letter dated June 13, 2008 advising her that she would be
terminated unless she paid her back dues by July 14, 2008. Id. Due to a family
emergency, Rios-O’Donnell never read the contents of this letter. Id. Rios-O’Donnell
claims that she had no reason to believe that her dues were unpaid because she
assumed that the union was charging her bankcard. Id.
According to Rios-O’Donnell, APFA had a longstanding policy and practice of
calling flight attendants, or having American do so, prior to the final deadline for
payment specified in alert letters sent pursuant to Article 31. Id. ¶ 14. Pursuant to this
policy, on July 8, 2008 APFA sent a letter to American asking it to contact all flight
attendants (including Rios-O’Donnell) to whom APFA sent alert letters on June 13,
2008 and whose payment was due on July 14, 2008. Id. Additionally, pursuant to
American’s own internal policies, American’s Manager of Employee Relations Vince
Heyer advised APFA on July 9, 2008 that he had instructed these flight attendants’
supervisors to contact the flight attendants prior to the payment deadline. Id. ¶ 15.
Despite these policies and actions, Rios-O’Donnell’s supervisor did not contact her until
July 22, 2008, eight days after her payment deadline had passed. Id. ¶ 16. Moreover,
when the supervisor left a voice mail message for Rios-O’Donnell that day, he told her
that she still had fourteen days to pay her back dues. Id.

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Immediately after receiving her supervisor’s voice mail message, Rios-O’Donnell
called APFA to pay her dues. Id. ¶ 17. APFA’s treasurer told Rios-O’Donnell that it
was too late because the July 14, 2008 deadline had passed and refused to accept her
payment. Id. Rios-O’Donnell also sent a letter to APFA on July 25, 2008 containing a
cashier’s check for the full amount of unpaid dues, but APFA refused to accept the
payment. Id. ¶ 18.
On July 28, 2008, Rios-O’Donnell filed a grievance with her supervisor contesting
her pending discharge pursuant to Article 31H(1) of the CBA. Id. ¶ 19. On August 1,
2008, her supervisor denied her grievance. Id. Rios-O’Donnell then appealed the
denial of her grievance to the System Board pursuant to Article 31H(2). Id. ¶ 20. On
March 29, 2010, the System Board issued a written opinion denying Rios-O’Donnell’s
appeal and her termination became immediately effective. Id. She filed her complaint
on September 28, 2010.
Discussion
In addressing a motion to dismiss, the Court accepts the plaintiff’s allegations as
true and draws reasonable inferences in her favor. Parish v. City of Elkhart, 614 F.3d
677, 679 (7th Cir. 2010); Johnson v. Apna Ghar, Inc., 330 F.3d 999, 1001 (7th Cir.
2003). The Federal Rules of Civil Procedure require the plaintiff to provide “a short and
plain statement” showing that she is entitled to relief. Fed. R. Civ. P. 8(a)(2). Though a
complaint need not contain “detailed factual allegations, . . . a formulaic recitation of the
elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). Rather, the plaintiff must provide “enough facts to state a claim to

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relief that is plausible on its face.” Id. at 570. A complaint fails to state a plausible
claim “where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).2
1.

Statute of limitations
American and APFA first contend that Rios-O’Donnell’s DFR claims are barred

by the applicable statute of limitations. See American Br. at 4-7; APFA Br. at 5-8.
Although the parties agree that the limitations period applicable to Rios-O’Donnell’s
RLA claims is six months from the date of accrual, see United Indep. Flight Officers,
Inc. v. United Air Lines, Inc., 756 F.2d 1262, 1270 (7th Cir. 1985), they dispute when
the statute of limitations began to run and whether tolling applies based on RiosO’Donnell’s pursuit of contractual remedies under Article 31 of the CBA.
The six-month limitations period applicable to a DFR claim under the RLA is the
same as that applicable to an employee’s hybrid section 301/DFR claim against his
employer and union under the LMRA. See id. This limitations period begins to run
“when the claimant discovers, or in the exercise of reasonable diligence should have

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APFA attached the System Board’s opinion and award to its brief, stating that
the Court may consider it because it is subject to judicial notice. APFA Br. at 2 n.1.
American also notes that, because the award was incorporated by reference into the
complaint, it may be considered part of the pleadings. American Br. at 3 n.1. RiosO’Donnell attached to her response several documents she presumably believes to be
pertinent to the motion. She asserts that if the Court looks outside of the complaint,
then it must treat defendants’ motions as motions for summary judgment under Rule
56. See Fed. R. Civ. P. 12(d). The Court has excluded all materials that the parties
attached to their pleadings. Because this decision is based on the pleadings alone, the
motions are properly characterized as a motions to dismiss under Rule 12(b)(6).
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discovered, the acts constituting the alleged violation.” Christiansen v. APV Crepaco,
Inc., 178 F.3d 910, 914 (7th Cir. 1999) (citation and quotation marks omitted).
As a preliminary matter, APFA asserts that Rios-O’Donnell has alleged two
separate duty of fair representation claims with distinct accrual dates for purposes of
the statute of limitations. The first claim, APFA argues, is a claim against APFA alone
that arises out of its alleged failure to adequately notify Rios-O’Donnell of her dues
arrearage. The second claim, APFA contends, is a claim that APFA took an adversarial
position against Rios-O’Donnell during her Article 31 grievance and thereby contributed
to American’s wrongful termination of her employment. According to APFA, the former
claim accrued in July 2008 when Rios-O’Donnell realized that APFA did not properly
notify her of her arrearage. The latter claim, it argues, accrued in August 2008 when
Rios-O’Donnell realized that APFA would not represent her before the System Board.
Rios-O’Donnell counters that her complaint asserts a single DFR claim that alleges a
continuum of conduct. She also argues that her claim did not accrue (or, alternatively,
that the statute of limitations on the claim was tolled) until the System Board reached its
decision and her termination became final.
APFA is correct that Rios-O’Donnell appears to assert two types of DFR claims.
One is a grievance-related claim. See Am. Compl. ¶ 25(c)-(e) (alleging that APFA
refused to represent or assist Rios-O’Donnell in connection with her grievance and
assumed an adversarial position against her). The other is a non-grievance-related
claim involving APFA’s conduct separate from, and prior to, Rios-O’Donnell’s pursuit of
her contractual remedies under the CBA. Id. ¶ 25(a)-(b) (alleging that APFA

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discriminated against Rios-O’Donnell and treated her arbitrarily by not allowing her to
pay her dues late and instructing American to terminate her despite failing to follow its
own notice procedures). The Court therefore agrees that Rios-O’Donnell’s DFR claims
should be considered separately for statute of limitations purposes.
Rios-O’Donnell’s allegations make clear that she was aware of the acts
constituting APFA’s alleged breach in July or August 2008. Despite this, the Court
concludes that Rios-O’Donnell’s DFR claims are timely because the limitations periods
on the claims were tolled while she pursued contractual remedies before the System
Board. The Seventh Circuit has held that the statute of limitations on a plaintiff’s RLAbased DFR claim is tolled while the plaintiff pursues internal union remedies. Frandsen
v. Bhd. of Ry., Airline and S.S. Clerks, Freight Handlers, Express & Station Emps., 782
F.2d 674, 681-84 (7th Cir. 1986). This is so even if the plaintiff’s pursuit of those
remedies is ultimately found to have been futile. Id. at 684. APFA argues that the rule
from Frandsen is inapplicable because Rios-O’Donnell sought to exhaust contractual
remedies, not internal union remedies. APFA Reply at 7. The circuits that have
addressed the issue, however, have all applied tolling or delayed accrual in cases
where the plaintiff exhausted his contractual remedies before filing a DFR claim. See,
e.g., Whittle v. Local 641, Int’l Bhd. of Teamsters, Chauffers, Warehousemen, and
Helpers of Am., 56 F.3d 487, 489-90 (3d Cir. 1995); Galindo v. Stoody Co., 793 F.2d
1502, 1509-10 (9th Cir. 1986); Adkins v. Int’l Union of Elec., Radio & Mach. Workers,
769 F.2d 330, 335-36 (6th Cir. 1985). This approach makes eminent sense, since—as
American and APFA acknowledge—the Supreme Court has held that an employee

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must exhaust his contractual remedies before pursuing such a claim in court. See
Clayton v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., 451
U.S. 679, 685-687 (1981). Moreover, the Seventh Circuit in Frandsen recognized that
tolling is warranted where “exhaustion is required by the circumstances of the case.”
Frandsen, 782 F.2d at 678. The Court is unpersuaded that the tolling rule from
Frandsen is limited to cases in which an employee pursues internal union remedies, the
exhaustion of which may not always be a necessary precursor to filing a lawsuit. Tolling
is at least equally appropriate when a plaintiff pursues contractual remedies that must
be exhausted before a court will hear the plaintiff’s case.
Though the Seventh Circuit does not appear to have addressed whether tolling
applies in this precise factual scenario, the Ninth Circuit dealt with a similar situation in
Galindo v. Stoody Co., 793 F.2d 1502 (9th Cir. 1986). In Galindo, the plaintiff
presented two distinct DFR claims. One of these claims involved the union’s handling
of the plaintiff’s contractual grievance. The other arose out of a non-grievance-related
breach: the union’s alleged failure to notify the plaintiff’s employer that he was entitled
to seniority in the event of layoffs. See Galindo, 793 F.2d at 1509-11. As in the present
case, then, the plaintiff in Galindo presented both grievance- and non-grievance-related
DFR claims. Id.
The court assessed each claim’s accrual date separately. It found that the
grievance-related claim accrued once the panel reached its decision. Id. at 1509. By
contrast, the non-grievance claim accrued when the plaintiff knew about the breach. Id.

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The limitations period on this claim, however, was tolled until the arbitration process
ended. Id. The court summarized its holding in the following way:
[A] fair representation claim based on how a grievance is presented to an
arbitrator accrues when the employee learns of the arbitrator's decision.
A fair representation claim not based on how a grievance is presented to
an arbitrator is tolled while good faith attempts are made to resolve that
claim through grievance procedures.
Id. at 1510. In other words, under Galindo, the limitations period on a plaintiff’s DFR
claim does not run while the plaintiff is pursuing contractual grievance procedures,
regardless of whether the claim is grievance- or non-grievance-based.
This case bears strong similarities to Galindo. One of Rios-O’Donnell’s DFR
claims is based entirely upon APFA’s conduct in relation to her pursuit of contractual
remedies before the System Board—namely, its failure to represent her and its
assumption of an adversarial position in those proceedings. More importantly, an
arbitration decision in Rios-O’Donnell’s favor would have resulted in the relief she
seeks, since she would have kept her job and suffered no injury as a result of APFA’s
alleged breach. The Court therefore concludes that this claim did not accrue until the
System Board reached its decision on March 29, 2010 and Rios-O’Donnell’s
termination became final. Cf. Whittle, 56 F.3d at 490.
Additionally, like the plaintiff in Galindo, Rios-O’Donnell has presented a nongrievance DFR claim by asserting that APFA failed to provide her with adequate notice
and discriminated against her by not allowing her to pay her dues late. The Court
agrees with the reasoning of the Ninth and Sixth Circuits and holds that this claim
accrued when Rios-O’Donnell became aware of her injury in July 2008, but was tolled

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until the System Board reached its decision. Cf. Galindo, 793 F.2d at 1510-11; Adkins,
769 F.2d at 336.
In summary, the six-month statute of limitations on Rios-O’Donnell’s DFR claims
did not expire until after September 28, 2010, the day Rios-O’Donnell filed her
complaint. The Court concludes that Rios-O’Donnell’s claims are timely.
2.

Count one (DFR claims)
Turning to the substance of Rios-O’Donnell’s complaint, American and APFA

argue that the DFR claims must be dismissed for three reasons. First, they contend
that Rios-O’Donnell has failed to allege facts sufficient to show that APFA breached its
duty of fair representation. Second, they assert that the System Board’s decision bars
Rios-O’Donnell from relitigating whether American breached the CBA by terminating
her, and her inability to do so dooms her DFR claim. Finally, they argue that RiosO’Donnell has failed to allege facts sufficient to establish that American breached the
CBA when it terminated her employment.
a.

Failure to state a DFR claim

American and APFA first assert that Rios-O’Donnell’s allegations, taken as true,
do not establish that APFA breached its duty of fair representation. APFA Br. at 11-12.
In their view, APFA did not breach this duty by invoking a union security clause in the
CBA and seeking Rios-O’Donnell’s termination before and during the grievance
proceedings. Rios-O’Donnell counters that although APFA’s mere invocation of the
union security clause may not constitute a breach of its duty of fair representation, its

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arbitrary and discriminatory treatment of Rios-O’Donnell before and during the System
Board proceedings does constitute such a breach. Resp. to APFA at 7-9.
“It is axiomatic that the union enjoys broad authority in its role as the exclusive
bargaining agent for a class of employees.” Thomas v. United Parcel Serv., Inc., 890
F.2d 909, 916 (7th Cir. 1989). As such, a union “owes a concommitant [sic] duty of fair
representation to each of its members.” Id. A union violates its duty to represent an
employee fairly “if its actions are either arbitrary, discriminatory, or in bad faith.” Vaca v.
Sipes, 386 U.S. 171, 190 (1967). This rule “applies to all union activity.” Air Line Pilots
Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991). Here, Rios-O’Donnell alleges the union
treated her arbitrarily and discriminated against her. “[A] union’s actions will only be
deemed arbitrary if, in light of the factual and legal landscape at the time of the union’s
actions, the union’s behavior is so far outside a wide range of reasonableness, as to be
irrational.” Nemsky v. ConocoPhillips Co., 574 F.3d 859, 865 (7th Cir. 2009). “To prove
arbitrary or discriminatory treatment, the plaintiff must show that the Union’s conduct
was intentional, invidious and directed at that particular employee.” Cannon v. Consol.
Freightways Corp., 524 F.2d 290, 293 (7th Cir. 1975).
Rios-O’Donnell’s complaint contains several specific allegations that give rise to
a plausible inference that APFA’s actions were arbitrary, discriminatory, or in bad faith.
She asserts that both American and APFA had a longstanding policy and practice of
personally contacting flight attendants before their dues payments became due under
Article 31. Am. Compl. ¶¶ 14-16. Despite this, APFA failed to call Rios-O’Donnell or
have American do so until July 22, 2008, several days after her final payment deadline

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had passed. Id. ¶ 16. In light of this policy and APFA’s failure to comply with it, RiosO’Donnell contends that APFA’s subsequent decision to direct American to terminate
her was arbitrary. Id. ¶ 25(a). She also argues that APFA discriminated against her by
refusing to accept her late tender of dues, even though it had allowed other flight
attendants to pay their dues after a final deadline. Id. ¶ 25(b). Finally, she asserts that
APFA’s failure to represent her before the System Board, as well as its adoption of an
adversarial position there, were arbitrary in light of the policies discussed above. Id. ¶¶
25(c)-(e).
American and APFA persuasively argue that standing alone, APFA’s mere
decision to seek the discharge of a employee whose dues are delinquent should not
give rise to a viable DFR claim. See, e.g., Brady, 401 F.2d at 99 (noting that “healthy
industrial relations cannot be preserved if unions are prevented from effective action to
secure the prompt payment of dues where dues are required under a valid union
security agreement”). Rios-O’Donnell, however, has alleged facts raising a plausible
inference that APFA reached this decision in an arbitrary and discriminatory fashion.
By asserting that APFA inexplicably failed to comply with its own internal policies and
targeted her for harsher punishment than that received by other similarly situated
workers, Rios-O’Donnell has stated a DFR claim.
b.

Finality of the System Board’s decision

American and APFA next argue that Rios-O’Donnell cannot relitigate the System
Board’s finding that American did not breach the CBA. APFA Br. at 10-11; American
Br. at 7-10. Rios-O’Donnell responds that the System Board’s decision does not

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preclude her from arguing that American violated the CBA because the System Board
had no jurisdiction to consider her DFR claims and her allegations establish that
APFA’s breach of its duty of fair representation undermined the System Board
proceedings. Resp. to APFA at 12.
Under the RLA, an award of the System Board is “final and binding.” 45 U.S.C. §
153 First (m). An exception to this relitigation bar exists, however, in cases where “the
union’s breach of duty . . . seriously undermines the integrity of the arbitral process.”
Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567 (1976); see also Thomas, 890
F.2d at 922 (same). In other words, Rios-O’Donnell will not be precluded from
challenging the System Board’s finding that American did not breach the CBA if she
can show that APFA’s breach of its duty of fair representation rose to this level. See
Barnett v. United Air Lines, Inc., 738 F.2d 358, 362 (10th Cir. 1984) (emphasis in
original) (“If an employee can establish that his union breached its implied duty of fair
representation, then even a binding decision of the board can be set aside if the breach
seriously undermined the integrity of the arbitral process.”).
As discussed above, Rios-O’Donnell has alleged that APFA’s breach of its duty
of fair representation hindered her ability to pursue her grievance before the System
Board. Specifically, she asserts that APFA, after providing her with less notice of her
arrearage than it provided to other employees and arbitrarily refusing her request to pay
her dues late, actively opposed Rios-O’Donnell’s grievance before the System Board in
bad faith. Am. Compl. ¶¶ 25-26. Though somewhat thin, these allegations are
sufficient to raise a plausible inference that APFA’s breach significantly and unfairly

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limited Rios-O’Donnell’s ability to contest her discharge, and thus undermined the
System Board proceedings as a whole. This is particularly so given that Rios-O’Donnell
was powerless to challenge APFA’s conduct during the System Board proceedings.
See Conley v. Gibson, 355 U.S. 41, 44-45 (1957) (citing 45 U.S.C. § 153 First (I))
(holding that because the RLA “applies only to ‘disputes between an employee or group
of employees and a carrier or carriers,’” an adjustment board “has no power under . . .
the [RLA] to protect them from” discrimination by their union); Brady, 401 F.2d at 93
(acknowledging that “the [RLA] does not authorize adjustment boards to hear an
employee’s dispute against his union.”). The Court therefore concludes that, based on
the allegations in Rios-O’Donnell’s complaint, the exception recognized in Hines applies
and the System Board’s decision does not preclude Rios-O’Donnell from arguing that
American breached the CBA when it terminated her employment.
c.

Failure to state a breach of contract claim

Additionally, American and APFA argue that Rios-O’Donnell’s DFR claims must
be dismissed because, even assuming that she is not precluded from arguing that
American violated the CBA, she has not alleged facts sufficient to show that it did so.
American Br. at 2; American Reply at 4-6.
To prevail on a hybrid DFR claim, an employee must prove that her union
breached its duty of fair representation and her employer breached the collective
bargaining agreement. See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 165
(1983); Bell v. DaimlerChrysler Corp., 547 F.3d 796, 804 (7th Cir. 2008). As discussed
above, Rios-O’Donnell is not barred from relitigating the second issue. She has alleged

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that American failed to comply with a longstanding policy and practice of providing
timely notice of a dues arrearage to its employees. American and APFA argue that this
evidence cannot raise a plausible inference of breach, because the CBA contains a
provision reciting American’s notice obligations. The Supreme Court, however, has
rejected this tunnel-vision approach to interpreting collective bargaining agreements.
See, e.g., Transp.-Commc’n Emps. Union v. Union Pac. R.R., 385 U.S. 157, 161 (1967)
(“In order to interpret [a collective bargaining] agreement it is necessary to consider . . .
the practice, usage and custom pertaining to all such agreements”); see also Bhd. of
Maint. of Way Emps. v. Atchinson, Topeka & Santa Fe Ry. Co., 138 F.3d 635, 641 (7th
Cir. 1997) (quotation marks omitted) (“For collective bargaining agreements under the
RLA, we must look beyond the document itself. We must look to the parties’ practice,
usage and custom.”). Simply put, the Court is not limited to the four corners of the CBA
in interpreting the parties’ agreement.
The Court acknowledges that “extrinsic evidence cannot be used to contradict
the express provisions of a written contract.” Id. Rios-O’Donnell’s allegations, however,
are sufficient to raise a plausible inference that American’s notice obligation under the
CBA included, in practice, a duty to contact employees personally prior to the due date
for late dues payments. Cf. Fry v. Airline Pilots Ass’n, Int’l, 88 F.3d 831, 836 (10th Cir.
1996) (quotation marks omitted, emphasis in original) (noting that “norms that the
parties have created but have omitted from the collective bargaining agreement’s
explicit language” are part of the agreement). The Court therefore concludes that Rios-

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O’Donnell has alleged facts sufficient to show that American breached the CBA by
failing to notify Rios-O’Donnell of her arrearage before it became due.
3.

Count two (breach of contract claim)
As noted above, Rios-O’Donnell has alleged facts sufficient to raise a plausible

inference that American breached the CBA. She has asserted a distinct breach of
contract claim against American and purports to sue under section 301 of the LMRA,
which provides a cause of action for breach of contract against an employer. See Am.
Compl. ¶¶ 29-31; Response to APFA Mot. at 1; Frandsen, 782 F.2d at 684. In this
case, however, the RLA—not the LMRA—applies. See supra p. 1 n.1; Frandsen, 782
F.2d at 684 (recognizing that “section 301 of the LMRA, 29 U.S.C. § 185 . . . does not
apply to employers . . . who are subject to the [RLA].”). The RLA does not provide a
jurisdictional basis for an employee to assert a direct claim for breach of contract
against her employer. Steffens, 797 F.2d at 445 n.2; Dement v. Richmond,
Fredricksburg & Potomac R.R. Co., 845 F.2d 451, 457 n.12 (4th Cir. 1988).
Despite this, an employee asserting an RLA-based DFR claim against her union
can join her employer as a defendant in that claim and in doing so “assert that the
collective bargaining agreement has been breached,” so long as the employee “can
allege that the employer’s conduct somehow contributed to the union’s breach” of its
duty of fair representation. Steffens, 797 F.2d at 445; Frandsen, 782 F.2d at 684
(recognizing that in such cases, “the allegation . . . is merely that [the employer] is a
party to [the union’s] breach.”). In such cases, the employer “is a defendant . . . solely
to permit the district court to award the plaintiff-employee full relief from the results of

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the union’s breach of its obligations as his collective bargaining representative.” Id. at
686. In other words, employees often seek reinstatement as a remedy for the union’s
breach, and only the employer can reinstate a former employee.3
The apparent absence of a jurisdictional basis for Rios-O’Donnell to assert a
breach of contract claim against American gives the Court some pause in considering
whether to dismiss count two. The parties, however, did not raise this issue in their
briefs. The Court therefore declines to dismiss count two on these grounds at this time.
See Frey v. E.P.A., 270 F.3d 1129, 1132 (7th Cir. 2001) (quotation marks omitted)
(warning that “sua sponte dismissals without prior notice or opportunity to be heard are
hazardous,” and “unless the defect is clearly incurable a district court should grant the
plaintiff leave to amend, allow the parties to argue the jurisdictional issue, or provide the
plaintiff with the opportunity to discover the facts necessary to establish jurisdiction”). If
American and APFA believe that count two is subject to dismissal for lack of subject
matter jurisdiction, they may raise the issue in a procedurally appropriate motion.
Jurisdictional issues aside, the Court concludes that Rios-O’Donnell has alleged
facts showing that American’s conduct “somehow contributed to [APFA’s] breach,” and
has therefore stated a DFR claim against American as well as APFA. Steffens, 797
F.2d at 445. Her complaint alleges that American and APFA had overlapping policies
requiring them to notify flight attendants personally of their dues delinquencies. Am.
Compl. ¶ 16. She also asserts that American failed to fulfill this duty despite the fact

3

Rios-O’Donnell has sought reinstatement in connection with her claims. See
Am. Compl. at 11.
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that APFA asked sent a written request to American on July 8, 2008 asking the
company to contact Rios-O’Donnell. Id. ¶ 14. In short, Rios-O’Donnell has pled facts
raising a plausible inference that American’s own misconduct contributed to APFA’s
alleged breach of its duty of fair representation—namely, its failure to provide her with
adequate notice of her dues arrearage. Therefore, Rios-O’Donnell may join American
as a defendant in her DFR claim against APFA. The Court will grant her leave to
amend count two of her complaint accordingly.
Conclusion
For the reasons stated below, the Court denies defendants’ motions to dismiss
[docket nos. 15, 22]. The Court grants Rios-O’Donnell leave to amend her complaint to
replace her breach of contract claim against American with a DFR claim. The case is
set for a status hearing on September 7, 2011 at 9:30 a.m. for the purpose of setting a
discovery schedule and discussing the possibility of settlement.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: August 24, 2011

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