Bryan v. American Airlines, Inc. et al

Filing 73

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court ALLOWS APA's motion for summary judgment, D. 60.(Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
)
JON L. BRYAN,
)
)
Plaintiff,
)
)
v.
)
)
Case No. 17-cv-12460-DJC
)
ALLIED PILOTS ASSOCIATION and
)
AMERICAN AIRLINES, INC.,
)
)
Defendants.
)
)
)
__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.

June 15, 2020

Introduction
Plaintiff Jon L. Bryan (“Bryan”) brings this action under the Railway Labor Act (“RLA”).

D. 1. Bryan alleged that Defendant Allied Pilots Association (“APA”) breached its duty of fair
representation (Count I) and Defendant American Airlines breached the terms of the collective
bargaining agreement in effect prior to Bryan’s termination (Count II). Id. This Court previously
dismissed the claim against American Airlines. D. 40. APA now moves for summary judgment
on the remaining count. For the reasons stated below, the Court ALLOWS APA’s motion, D. 60.
II.

Standard of Review
The Court grants summary judgment where there is no genuine dispute as to any material

fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a). “A fact is material if it carries with it the potential to affect the
outcome of the suit under the applicable law.” Santiago-Ramos v. Centennial P.R. Wireless Corp.,
1

217 F.3d 46, 52 (1st Cir. 2000) (quoting Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)).
The movant “bears the burden of demonstrating the absence of a genuine issue of material fact.”
Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations
or denials in her pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but “must,
with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a
trier of fact could reasonably resolve that issue in her favor,” Borges v. Serrano-Isern, 605 F.3d 1,
5 (1st Cir. 2010). “As a general rule, that requires the production of evidence that is ‘significant[ly]
probative.’” Id. (alteration in original) (quoting Anderson, 477 U.S. at 249). “Neither party may
rely on conclusory allegations or unsubstantiated denials, but must identify specific facts derived
from the pleadings, depositions, answers to interrogatories, admissions and affidavits to
demonstrate either the existence or absence of an issue of fact.” Magee v. United States, 121 F.3d
1, 3 (1st Cir. 1997). In conducting this inquiry, the Court “view[s] the record in the light most
favorable to the nonmovant, drawing reasonable inferences in his favor.” Noonan v. Staples, Inc.,
556 F.3d 20, 25 (1st Cir. 2009).
III.

Factual Background
The following facts are drawn from APA’s statement of material facts, D. 61, Bryan’s

response to same, D. 66, and other supporting documents and are undisputed unless otherwise
noted.1

1

At oral argument, counsel for Bryan argued that the newly stated facts in his response to
APA’s statement of material facts must be admitted as true because APA did not respond to it.
Local Rule 56.1, upon which Bryan relies, however, states that “[m]aterial facts of record set forth
in the statement required to be served by the moving party will be deemed for purposes of the
motion to be admitted by opposing parties unless controverted by the statement required to be
served by opposing parties.” Here, APA is the moving party, and thus a response was required to
APA’s statement of material facts by Bryan, the opposing party. Moreover, it is up to the discretion
2

A.

Bryan’s Grievance with US Airways

Bryan was a captain with US Airways until he retired in 1999. D. 66 Resp.2 ¶ 14. Until
2008, the Air Line Pilots Association (“ALPA”) was the duly certified collective bargaining agent
for US Airways pilots. D. 66 Resp. ¶ 2. In or around December 1996, Bryan was elected to a twoyear term as the chairman of the ALPA Master Executive Council. D. 66 Resp. ¶ 15. During his
two-year term, Bryan ceased piloting commercial aircraft and did not participate in any recurrent
pilot training. D. 66 Resp. ¶¶ 16, 19. As a result, Bryan’s qualification to fly lapsed in 1997.
D. 66 Resp. ¶ 19.
US Airways and ALPA agreed to an Early Retirement Program (“ERIP”), which permitted
up to 325 pilots to opt into the program to retire between May 1998 and May 2000. D. 66 Resp.
¶¶ 21, 22. Under the ERIP, pilots could designate their preferred retirement date, but US Airways
would assign retirement dates based on operational needs and other considerations. D. 66 Resp. ¶
23. Bryan voluntarily opted into the ERIP in or around March 1998. D. 66 Resp. ¶ 20. In or
around the summer of 1998, Bryan sought to enroll in training to regain qualification to fly. D. 66
Resp. ¶ 28. Bryan was scheduled to participate in a training program in August 1998, but his
participation was canceled by US Airways. D. 66 Resp. ¶ 29. US Airways advised Bryan that his
training was canceled because US Airways determined the training was not an appropriate use of
company resources.3 D. 66 Resp. ¶ 30. US Airways selected Bryan to retire on January 1, 1999

of this court whether facts stated in a statement of material facts are to be admitted as true, see
Hernandez v. Philip Morris USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007); Navarro v. U.S. Tsubaki,
Inc., 577 F. Supp. 2d 487, 492 n.1 (D. Mass 2008), which the Court declines to do here.
2

Citations to “D. 66 Resp.” refer to the section of Bryan’s statement of material facts
responding to APA’s statement of material facts, beginning on page twenty-one of D. 66. Citations
to “D. 66” refer to Bryan’s statement of material facts beginning on page one of D. 66.
3

In a letter detailing his grievance, Bryan indicated that he contested US Airways’
cancellation of his training as a “misinterpretation and misapplication” of the US Airways Pilots’
Working Agreement. D. 63-1 at 98. Bryan contends that the cancellation of his training resulted
3

under the second phase of retirements pursuant to the ERIP. D. 66 Resp. ¶ 35. Bryan received all
benefits called for under the ERIP. D. 66 Resp. ¶ 35.
On February 24, 1999, Bryan filed a grievance under the collective bargaining agreement
between US Airways and ALPA regarding US Airways’ cancellation of his training. D. 66 Resp.
¶ 37. US Airways denied the grievance at the first step of the grievance process, stating, in part,
that “Bryan was properly assigned a retirement date . . . and was appropriately withheld from
training consistent with the intent of not expending training resources on a pilot scheduled to
retire.” D. 66 Resp. ¶ 38. US Airways subsequently denied Bryan’s grievance at step two of the
process on August 2, 2000. D. 66 Resp. ¶ 39. Pursuant to standard practices, the ALPA submitted
Bryan’s dispute to the U.S. Airways Pilots System Board of Adjustment for arbitration on August
29, 2000. D. 66 Resp. ¶ 40. The issue submitted concerned whether US Airways had acted
improperly by “unilaterally and arbitrarily cancelling [Bryan’s] training.” D. 66 Resp. ¶ 41.
B.

The Unions’ Handling of Bryan’s Grievance
1.

ALPA and USAPA

Under ALPA, grievances were handled through a Grievance Committee comprised of
pilots. D. 66 Resp. ¶ 42. In January 2004, Bryan sent a letter to the National President of ALPA
inquiring about the status of his grievance and requesting that it be scheduled for arbitration. D. 66
Resp. ¶ 43. There is no indication that Bryan received a response to his letter and his grievance
was not scheduled for arbitration. D. 66 Resp. ¶ 44. Captain Tracy Parrella (“Parrella”) was the
Grievance Committee chairman for ALPA from 2003 through 2008. D. 66 Resp. ¶ 51. Parrella
made recommendations regarding which grievances were scheduled for arbitration. D. 66 Resp.

from the deterioration of his relationship with US Airways president Rakesh Gangwahl based on
positions that Bryan took in negotiations with US Airways. D. 66 ¶¶ 63-65.
4

¶ 54. In June 2004, Bryan emailed Parrella asking that she process his grievance through
arbitration, noting that “the passage of five years for processing was excessive.” D. 66 Resp. ¶ 56.
In or about August 2004, Parrella informed Bryan that his “grandchildren would be dead before
arbitration [of his grievance] was scheduled.” D. 66 Resp. ¶ 60. ALPA did not schedule Bryan’s
grievance for arbitration following this communication. See D. 66 Resp. ¶ 59.
In December 2005, Bryan emailed Parrella with a settlement proposal and threatened to
commence litigation if no settlement was reached. D. 66 Resp. ¶ 62. ALPA did not conduct
settlement negotiations following the letter and Bryan did not commence litigation. D. 66 Resp.
¶ 63. In January 2006, Parrella contacted Bryan and informed him that his grievance would not
be scheduled in the “foreseeable future.” D. 66 Resp. ¶ 64. In October 2007, Bryan sent a letter
to the ALPA National President advising him that ALPA had failed to schedule his grievance for
arbitration and referencing the possibility of pursuing a duty of fair representation claim against
ALPA, indicating that, if no settlement could be reached, he would be “forced” to seek a legal
resolution. D. 66 Resp. ¶¶ 65, 66. ALPA did not schedule Bryan’s grievance for arbitration
following this communication and Bryan did not commence legal action against ALPA. D. 66
Resp. ¶ 67.
In or around 2008, the US Airways Pilots Association (“USAPA”) replaced ALPA as the
collective bargaining agent for US Airways pilots. D. 66 Resp. ¶ 45. Parrella was the Grievance
Committee chair for USAPA from 2008 through 2012. D. 66 Resp. ¶ 52. During her time as
Grievance Committee chair for ALPA and USAPA, Parrella included Bryan’s grievance on a list
of grievances to be withdrawn by the union. D. 66 Resp. ¶ 69. Bryan contacted Parrella in
December 2011 to inquire about the status of his grievance, again threatening legal action
regarding the failure of the union to pursue his grievance. D. 66 Resp. ¶¶ 71, 72. Although his

5

grievance was not scheduled for arbitration following this communication, Bryan did not initiate
any legal action and had no further contact with USAPA concerning the grievance between
December 2011 and October 2014. D. 66 ¶¶ 74, 75.
Captain David Ciabattoni (“Ciabattoni”) served as the Grievance Committee chair for
USAPA beginning in or around 2013 through in or about 2014. D. 66 ¶ 84. During this time,
Bryan’s grievance was not scheduled for arbitration. D. 66 Resp. ¶ 86. Ciabattoni consulted
Captain Doug Mowery (“Mowery”), a former ALPA Grievance Committee chairman, as a subjectmatter expert regarding Bryan’s grievance. D. 66 Resp. ¶¶ 89, 90. Ciabattoni later included
Bryan’s grievance on in internal working list indicating that it was a candidate for withdrawal by
the union. D. 66 Resp. ¶ 92.
2.

APA

In or around December 2013, US Airways merged into American Airlines. D. 66 Resp.
¶ 7. At the time of the merger, US Airways pilots were represented by USAPA and American
Airlines pilots were represented by APA. D. 66 Resp. ¶ 8. In or around September 2014, APA
was certified as the collective bargaining agent for the pilots of the merged American Airlines.
D. 66 Resp. ¶ 9. APA set up a process whereby former USAPA subject-matter experts would
review grievance files and make recommendations regarding which grievances to pursue. D. 66
Resp. ¶ 97. Tricia Kennedy, Esq. (“Kennedy”) is the Director of Grievance and Dispute Resolution
at APA. D. 66 Resp. ¶ 160. Kennedy asked Ciabattoni to travel to APA to assist with reviewing
grievance files. D. 66 Resp. ¶¶ 94, 95. Ciabattoni met with former USAPA representatives,
including former USAPA Negotiating Committee chairman Dean Colello (“Colello”) and former
USAPA Charlotte domicile representative Ron Nelson (“Nelson”) to review the grievance files
over a number of days. D. 66 Resp. ¶¶ 101, 166. On November 3, 2015, Ciabattoni sent Kennedy

6

an email containing a chart titled “OLD USAPA WITHDRAWN GRIEVANCES TABLE” that
included Bryan’s grievance. D. 66 Resp. ¶¶ 107-109. Upon reviewing Bryan’s grievance file for
the APA in November 2015 and conducting research, Ciabattoni, Colello and Nelson agreed that
Bryan’s grievance should not be pursued by APA. D. 66 Resp. ¶¶ 168-170. Ciabattoni made the
recommendation to Kennedy that the grievance should be withdrawn. D. 66 Resp. ¶¶ 111-116.
Bryan did not attempt to contact anyone at APA regarding his grievance between 2014 and
February 2017. D. 66 Resp. ¶ 184. Bryan first reached out to Kennedy at APA regarding the
status of his grievance on February 24, 2017. D. 66 ¶ 123. Bryan did not hear back from Kennedy
regarding the status of his grievance, so called her again on April 13, 2017 and stated that he would
litigate if he did not hear back from Kennedy within thirty days. D. 66 ¶ 126; see D. 67-3 at 2.
Kennedy did not get back to Bryan within thirty days and Bryan reached out to Kennedy again in
May 2017, at which time she indicated that a meeting was scheduled with American Airlines in
which Bryan’s grievance would be discussed. D. 66 ¶ 127.
C.

The Global Settlement

In or around December 2015, APA met with representatives of American Airlines to
discuss a potential global settlement of all outstanding US Airways grievances that the USAPA
representatives had recommended that APA pursue. D. 66 Resp. ¶ 174. APA insisted that the
agreement with American Airlines (the “Global Settlement Agreement”) include all meritorious
grievances whether the affected pilot was employed by American Airlines at that time. D. 66
Resp. ¶ 176. The parties reached a tentative global settlement, which included all grievances that
had been previously withdrawn by USAPA or were recommended for withdrawal by the USAPA
subject-matter experts. D. 66 Resp. ¶ 183. In October 2017, Kennedy notified Bryan of the
tentative global settlement and that Bryan’s grievance had been withdrawn by APA. D. 66 Resp.

7

¶ 186. Kennedy indicated that the global settlement had not yet been finalized and that Bryan
could contact Paul DiOrio (“DiOrio”), the Chairman of the Philadelphia domicile and a former
USAPA representative, if Bryan had any questions regarding his grievance. D. 66 Resp. ¶ 188.
Bryan did not contact DiOrio at any time to discuss his grievance. D. 66 Resp. ¶ 189. The Global
Settlement Agreement, which included the withdrawal of Bryan’s grievance, was finalized and
executed on October 16, 2017. D. 66 Resp. ¶ 192.
IV.

Procedural History
Bryan filed a complaint in this action on December 14, 2017. D. 1. The Court denied

APA’s motion to dismiss and granted American Airlines’ motion to dismiss. D. 40. APA has now
moved for summary judgment. D. 60. The Court heard the parties on the motion and took the
matter under advisement. D. 72.
V.

Discussion
The Railway Labor Act (“RLA”) governs labor relations in the airline industry. Hennebury

v. Transport Workers Union, 485 F. Supp. 1319, 1321 (D. Mass. 1980) (citing 45 U.S.C. § 151 et
seq.). Under the RLA, “[a]s ‘the exclusive bargaining representative of the employees, a union
has a statutory duty fairly to represent all of those employees.’” Cabral v. Mass. Bay Transp.
Auth., No. 18-cv-12404-NMG, 2019 WL 3781567, at *6 (D. Mass. June 18, 2019) (quoting
Emmanuel v. Int’l Bd. of Teamsters, Local Union No. 25, 426 F.3d 416, 419-20 (1st Cir. 2005)).
APA argues that Bryan’s claim must be dismissed because APA never owed him a duty of
fair representation as Bryan was never a member of APA and was not employed by American
Airlines. D. 62 at 9. APA also argues that Bryan’s claim, which is based on the union’s handling
of a grievance he filed in 1999, is time-barred by the applicable six-month statute of limitations.
D. 62 at 10-13. Finally, APA contends that, even if they owed Bryan a duty of fair representation

8

and the claim was brought within the statute of limitations, the APA did not breach their duty to
Bryan. D. 62 at 13-21. The Court addresses each of these arguments in turn.
A.

Duty of Fair Representation to Bryan

Based on this record, the court assumes, arguendo, that APA owes a duty of fair
representation to Bryan. Although the parties agree that Bryan was never a member of APA, D. 66
Resp. ¶ 12, the record supports the conclusion that APA assumed a duty to pilots who had
outstanding grievances filed with ALPA and USAPA. Upon certification as the collective
bargaining agent for American Airlines pilots following the merger between American Airlines
and US Airways, representatives of APA set up a process to review outstanding USAPA
grievances with the input of past USAPA representatives. D. 66 Resp. ¶¶ 94-97. Ciabattoni, the
former USAPA Grievance Committee chairman, who participated in this process, emailed Bryan
to inform him that USAPA no longer had rights or duties with respect to Bryan’s grievance and
that APA “now has those duties and rights to represent you and advocate for you.” D. 66 ¶ 4;
D. 67-1 at 2. This email further indicated that USAPA had requested a filing in the bankruptcy
court to ensure the assumption of outstanding USAPA grievances.

D. 67-1 at 2-3.

APA

representatives met with American Airlines to negotiate a global settlement of all past US Airways
grievances, specifically rejecting American Airlines’ proposal that the settlement should include
only pilots then working for American Airlines and insisting that it cover all grievances, not just
those of current employees. D. 66 Resp. ¶¶ 174-176. Further, in the Global Settlement Agreement
executed by APA and American Airlines to settle the outstanding USAPA grievances, APA
expressly acknowledged that it had “inherited” grievances from USAPA. D. 66 ¶¶ 8-9; D. 64-3 at
1.

9

Based on these undisputed facts, this Court assumes that APA assumed the duty to
represent Bryan with regard to his grievance initiated with ALPA and, thus, assumed the duty of
fair representation on his behalf. See Cabral 2019 WL 3781567, at *6. Further, in Barnes v. Air
Line Pilots Ass’n, 141 F. Supp. 3d 836 (N.D. Ill. 2015), the court noted that, if a union “through
both omission and commission, conveyed to the [grievants] that it was negotiating on their behalf,”
the union could have assumed a duty of fair representation as to those pilots. See Barnes, 141 F.
Supp. 3d at 844-845. Here, the APA, through their process of reviewing and negotiating the
USAPA outstanding grievances, conveyed to pilots that they were resolving the grievances on
their behalf. The cases cited by APA are distinguishable and do not support their argument as
none involved a union that took affirmative actions to engage in negotiations on behalf of those to
which they claimed they owed no duty.
B.

The Statute of Limitations Bars Bryan’s Claim

Although assuming APA owes a duty to Bryan, on this developed record, even just
focusing on APA, Bryan knew or reasonably should have known of the unions’ alleged
wrongdoing long before filing suit. Bryan and APA agree that the relevant statute of limitations
for an action alleging a breach of the duty of fair representation claim under the RLA is six months.
D. 62 at 11; D. 65 at 10; see Benoni v. Bos. and Me. Corp., 828 F.2d 52, 56 (1st Cir. 1987) (noting
that “[a]lthough the RLA has no statute of limitations of its own, the courts . . . have borrowed the
six-month limitations period of section 10(b) of the National Labor Relations Act . . . and applied
it to actions claiming unfair labor practices under the RLA”) (internal quotation marks and
citations omitted). A cause of action against a union for breach of the duty of fair representation
arises “when the plaintiff knows, or reasonably should know, of the acts constituting the union’s
alleged wrongdoing.” Graham v. Bay State Gas Co., 779 F.2d 93, 94 (1st Cir. 1985). “As a general

10

matter, a duty of fair representation claim accrues and the six-month limitations period
commences when ‘the futility of further union appeals becomes apparent or should have become
apparent.’” Bensel v. Allied Pilots Ass’n, 387 F.3d 298, 305 (3rd Cir. 2004) (quoting Scott v.
Local 863, Int’l Brotherhood of Teamsters, etc., 725 F.2d 226, 229 (3d Cir. 1984)). “If, however,
a union purports to continue to represent an employee in pursuing relief, the employee’s duty of
fair representation claim against the union will not accrue so long as the union proffers ‘rays of
hope’ that the union can ‘remedy the cause of the employee's dissatisfaction.’” Id. (quoting Childs
v. Penn. Fed’n Brotherhood of Maintenance Way Employees, 831 F.2d 429, 434 (3d Cir. 1987)).
APA argues that Bryan’s claim against the union accrued prior to June 2017, which is six
months before Bryan initiated the instant case in December 2017, D. 1, based on ALPA and
USAPA’s collective failure to take any action with regards to Bryan’s grievance for over fifteen
years. D. 1; D. 62 at 12. Bryan counters that the six-month period did not begin to accrue until
October 2017, when Kennedy notified him that APA had withdrawn his claim. See D. 65 at 10.
The undisputed record indicates that, between 1999, when Bryan first filed his grievance, D. 66
Resp. ¶ 37, and September 2014, when APA was certified as the collective bargaining
representative for pilots following the merger of US Airways and American Airlines, D. 66 Resp.
¶ 9, Bryan contacted representatives from ALPA and USAPA numerous times inquiring about the
status of his grievance and threatening legal action if the unions failed to act expeditiously to
process his grievance. See D. 66 Resp. ¶ 43 (Bryan sent a letter to the National President of ALPA
requesting that his grievance be scheduled for arbitration in January 2004); D. 66 Resp. ¶ 56 (in
June 2004, Bryan emailed Parrella asking that his grievance be processed and noting that the
passage of five years since its filing was “excessive”); D. 66 Resp. ¶ 62 (in December 2005, Bryan
emailed Parrella with a settlement proposal and threatened to commence litigation if a settlement

11

was not reached); D. 66 Resp. ¶ 65 (in October 2007, Bryan sent a letter to the National President
of ALPA regarding the failure to schedule his grievance for arbitration); D. 66 Resp. ¶¶ 71-72 (in
December 2011, Bryan contacted Parrella threatening legal action for the union’s failure to process
his grievance). None of these communications resulted in the unions taking action to schedule
Bryan’s grievance for arbitration. In August 2004, Parrella informed Bryan that his “grandchildren
would be dead before the arbitration was scheduled.” D. 66 Resp. ¶ 60. “Prolonged inaction is
sufficient to give a diligent plaintiff notice that the union has breached its duty of fair
representation.” Pantoja v. Holland Motor Express, Inc., 965 F.2d 323, 327 (7th Cir. 1992). Based
on these facts, it is apparent that Bryan was aware that neither ALPA nor USAPA was acting on
his grievance and that this inaction could give rise to a duty of fair representation claim. As such,
Bryan’s claim accrued prior to APA’s certification as collective bargaining agent.
Even considering only the time following APA’s certification as collective bargaining
agent in 2014, the undisputed facts indicate that Bryan’s duty of fair representation claim is timebarred. On October 2, 2014, Bryan was notified that APA had inherited the outstanding USAPA
grievances in an email from Ciabattoni that referenced the new working agreement. See D. 66 ¶ 4;
D. 67-1 at 1. Bryan did not attempt to contact anyone at APA regarding the status of his grievance
between 2014 and February 2017. D. 66 Resp. ¶ 184. Bryan first contacted Kennedy about the
status of his grievance in February 2017, which is over six months prior to the date when Bryan
filed the present action in December 2017. See D. 66 ¶ 187. Bryan indicates that Kennedy did
not get back to him after he initially called her in February 2017, so he called her again in April
2017 and stated that if he did not receive an adequate response within thirty days he would litigate.
See D. 66 ¶ 126; D. 67-3 at 2. Bryan admits that he did not receive a response within thirty days
of his April 2017 call, but he did not initiate litigation at that time. D. 66 ¶ 127.

12

Bryan does not dispute that he never received any communication from APA that it was
going to take his grievance to arbitration. D. 66 Resp. ¶ 50. In Yordán v. Am. Postal Workers
Union, AFL-CIO, 293 F.R.D. 91 (D.P.R. 2013), the court noted that “[u]nion inaction should
indicate to the plaintiff that the union breached its duty of fair representation” in finding that a
plaintiff’s claim was barred by the statute of limitations where there was no communication or
action by the union regarding plaintiff’s grievance for over two years. Yordán, 293 F.R.D. at 97
(citing Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299, 304 (7th Cir. 1983); Delaney v. District
of Columbia, 612 F. Supp. 2d 38, 43 (D.D.C. 2009); Pulliam v. United Auto Workers, 354 F. Supp.
2d 868, 872 (W.D. Wisc. 2005)). The court rejected plaintiff’s contention that she was not required
to initiate suit until she received formal notice that the union had abandoned her claim, stating that
“[the two-year] period of inaction should have indicated to Yordán that the Union may have
breached its duty of fair representation, triggering the statute of limitations.” Yordán, 293 F.R.D.
at 98. Here, the approximately three-year period of inaction by APA should have indicated that
the union was not acting on Bryan’s 1999 grievance.
Bryan relies upon Bensel to support his argument that his claim did not accrue until he was
notified that his grievance was withdrawn in October 2017. D. 65 at 10. Bensel, however, is
distinguishable as the union in that case pursued arbitration and the court noted that a positive
outcome in the arbitration would have mooted the duty of fair representation claim. Bensel, 387
F.3d at 307. As such, the court stated that “[w]here a union represents the employee in an
arbitration proceeding and proffers rays of hope concerning the possibility of success in spite of
its breach . . . the employee’s cause of action does not accrue until the arbitration board denies the
employee’s claim.” Id. The same is not applicable here where APA did not arbitrate Bryan’s
claim and approximately three years passed without any action or communication by APA.

13

The record indicates that APA took no action regarding Bryan’s claim over a period of
years and that Bryan was aware of his right to file a claim on the basis of this inaction, but did not
do so.4 As the court in Pantoja indicated, “[t]he [grievant] cannot be allowed to sit back and claim
lack of notice in circumstances such as these. . . . The alleged violation, which consisted of union
inactivity, should have been discovered by a reasonably diligent plaintiff.” Pantoja, 965 F.2d at
327. As such, Bryan’s claim is barred by the six-month statute of limitations.
C.

APA Did Not Breach Their Duty of Fair Representation

Even if the statute of limitations did not apply to bar Bryan’s claim, summary judgment in
favor of APA is warranted because APA did not breach its duty of fair representation in processing
Bryan’s grievance.

“Wrongdoing constituting a breach of duty is defined as arbitrary,

discriminatory or bad faith conduct.” Borowiec v. Local No. 1570 of Int’l Brotherhood of
Boilermakers, etc., 626 F. Supp. 296, 301 (D. Mass. 1986) (citing Vaca v. Sipes, 386 U.S. 171,
190 (1967)). A union may not “arbitrarily ignore a meritorious grievance or process it in a
perfunctory fashion.” Newbanks v. Cent. Gulf Lines, Inc., 64 F. Supp. 2d 1, 4 (D. Mass. 1999)
(internal quotation marks and citations omitted). A union’s actions are arbitrary where, “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.” Miller v. U.S. Postal Serv., 985 F.2d
9, 12 (1st Cir. 1993) (quoting Air Line Pilots Ass’n Int’l v. O’Neill, 499 U.S. 65, 78 (1991)). But
“mere negligence or erroneous judgment will not constitute a breach of the duty of fair

4

Bryan states that he did not take any action between 2014 and 2017 because the former
USAPA grievance chair informed him that the grievance would not be addressed until a new
working agreement was executed. D. 65 at 11, n.8. Bryan cites no authority indicating that the
statute of limitations should be tolled for the three-year period based upon same. It remains
undisputed that APA did not indicate that it was processing Bryan’s grievance at any time during
the three-year period of inaction. See D. 66 ¶¶ 184-185.
14

representation.” Id. at 12. Judicial review of union action “must be highly deferential, recognizing
the

wide

latitude

that

negotiators

need

for

the

effective

performance

of

their

bargaining responsibilities.” O’Neill, 499 U.S. at 78.
It is undisputed that APA utilized a process to review the grievances it inherited from
USAPA, including Bryan’s, whereby it relied upon former USAPA representatives as subjectmatter experts to review the grievances and make recommendations as to which grievances APA
should pursue and which should be withdrawn. D. 66 Resp. ¶ 97. In November 2015, Ciabattoni,
a former chair of the Grievance Committee for USAPA, Colello, a former USAPA Negotiating
Committee chairman, and Nelson, a former USAPA Charlotte domicile representative, researched,
reviewed and discussed Bryan’s claim, ultimately recommending to APA that Bryan’s claim be
withdrawn. D. 66 Resp. ¶¶ 114-119. At the time he reviewed Bryan’s grievance file, Colello also
spoke with Mowery, a former USAPA representative who had been the Grievance Committee
chair at the time Bryan’s grievance was filed. D. 66 Resp. ¶ 130. Additionally, on November 3,
2015, Ciabattoni emailed Kennedy at APA a chart titled “OLD USAPA WITHDRAWN
GRIEVANCES TABLE” that included Bryan’s grievance as one that USAPA had planned to
withdraw, indicating that USAPA had previously considered Bryan’s grievance and determined
that it should not be scheduled for arbitration. D. 66 Resp. ¶¶ 107-109.
In engaging former USAPA representatives who had familiarity with US Airways’ policies
and procedures, the APA conducted more than just a “minimal investigation” of Bryan’s claim.
See Emmanuel v. Int’l Brotherhood of Teamsters, Local Union No. 25, 426 F.3d 416, 420 (1st
Cir. 2005) (stating that “[t]he duty of fair representation mandates that a union conduct at least a
‘minimal investigation’ into an employee’s grievance,” but clarifying that “under this standard,
only an ‘egregious disregard for union members’ rights constitutes a breach of the union’s duty’

15

to investigate”) (quoting Garcia v. Zenith Elecs. Corp., 58 F.3d 1171, 1176 (7th Cir. 1995);
Castelli v. Douglas Aircraft Co., 752 F.2d 1480, 1483 (9th Cir. 1985)). On this record, the actions
by the APA did not reflect an egregious disregard for Bryan’s rights. Considering the factual and
legal landscape, APA’s process for review and resolution of the inherited grievances was not
outside the “range of reasonableness,” but considered the opinion of subject-matter experts and
relied upon past determinations by USAPA representatives.
Further, there is no indication that APA acted in bad faith in withdrawing Bryan’s claim.
Bryan argues that APA acted in bad faith by misleading him into thinking that his case was open
only for it to be withdrawn as part of the Global Settlement Agreement. See D. 65 at 20-21. “A
union acts in bad faith when it acts with an improper intent, purpose, or motive, and [b]ad faith
encompasses fraud, dishonesty, and other intentionally misleading conduct.” Good Samaritan
Med. Ctr. v. NLRB, 858 F.3d 617, 630 (1st Cir 2017) (internal quotation marks omitted). There
is no indication that APA acted with an improper motive or that it engaged in fraud or dishonesty
or intentionally mislead Bryan.

Rather, prior to the finalization of the Global Settlement

Agreement, Kennedy informed Bryan that his grievance would be withdrawn and that he could
contact DiOrio if he had questions. D. 66 Resp. ¶¶ 186-188. Bryan did not attempt to contact
DiOrio or any other APA representative after Kennedy informed him of the pending global
settlement. D. 66 Resp. ¶ 190. Based on the undisputed facts, APA did not breach their duty of
fair representation with regard to their withdrawal of Bryan’s grievance as part of the global
settlement of outstanding USAPA claims with American Airlines.
VI.

Conclusion
For the foregoing reasons, the Court ALLOWS APA’s motion for summary judgment,

D. 60.

16

So Ordered.
/s/ Denise J. Casper
United States District Judge

17