Carr et al v. Air Line Pilots Association International
MEMORANDUM AND OPINION entered: Carr's motion to strike, (Docket Entry No. 55), is denied. ALPA's motion for summary judgment, (Docket Entry No. 50), is granted. Final judgment is entered by separate order.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
MICHAEL CARR, and others similarly
David J. Bradley, Clerk
July 29, 2016
AIRLINE PILOTS ASSOCIATION,
CIVIL ACTION NO. H-14-0451
MEMORANDUM AND OPINION
This case illustrates some of the challenges presented when airlines merge and the seniority
lists of their pilots must be integrated. Michael Carr was a Continental Airlines pilot when it merged
with United Air Lines to form United Airlines.1 Carr and similarly situated former Continental
pilots have become United Airlines pilots since the merger. A new integrated seniority list had to
be generated, a process that predictably produced disputes. As the Seventh Circuit recently noted
in an opinion addressing similar issues arising from the same merger, “any improvement in the
position of one carrier’s pilots meant a relative demotion for pilots coming from the other carrier.”
Cunningham v. Air Line Pilots Association, Int’l, 769 F.3d 539, 540 (7th Cir. 2014).
In Cunningham, as here, a single union, the Air Line Pilots Association, commonly known
as ALPA, had represented both the United and Continental pilots and owed a duty of fair
representation to both in the postmerger list integration. Carr sued ALPA on his own behalf and for
For convenience, this opinion refers to the former Continental Airlines as “Continental” and the former United
Air Lines as “United.”
other similarly situated pilots, claiming that ALPA had breached the duty it owed to the former
Continental pilots by interfering in various ways with the arbitration properly invoked to resolve the
disputed issues on how to integrate the seniority lists. ALPA moved for summary judgment, arguing
that it did not breach any duty owed. (Docket Entry No. 50). Carr responded and moved to strike
some of the evidence ALPA submitted, and ALPA replied. (Docket Entries No. 54, 55, 61, 63, 67,
Both cases illustrate the “need for compromise.” Id. The compromises have not breached
ALPA’s duty of fair representation. Here, as the court observed in Cunningham, “[c]ombining work
forces following an airline merger is not for the faint-hearted. The Union and United worked out
a series of deals, large and small, that have enabled two groups of pilots to work as one without
undue friction. That’s a significant accomplishment, not a source of legal liability.” Cunningham,
769 F.3d at 542-43.
Based on the motions, responses, and replies; the record; the law; and the arguments of
counsel, the court denies Carr’s motion to strike and grants ALPA’s motion for summary judgment.
Final judgment is separately entered. The reasons are explained in detail below.
In 2010, United Air Lines and Continental Airlines announced their merger to form United
Airlines. Work began on producing unified rosters for the pilots, including integrated seniority
ALPA represented all the pilots—the United pilots, the Continental pilots, and the merged
The McCaskill-Bond Amendment to the Federal Aviation Act, Pub. L. 110-161, Div. K, Title I, § 117, Dec.
26, 2007, 121 Stat. 2382, 49 U.S.C. § 42112, note, requires merging air carriers to integrate employee seniority lists
under the policies of the unions that represent the same groups of employees at both carriers. That union is ALPA.
carrier pilots. ALPA represented each pilot group through its Master Executive Council, made up
of members that each airline’s pilots elected. The Council members in turn elected the Council’s
officers. (Docket Entry No. 50, Declaration of Bruce A. York, ALPA’s Director of Representation,
who ALPA assigned to coordinate the arbitration on its behalf, at ¶ 2).
ALPA had established a merger policy, with the input of pilots from both United and
Continental, long before those carriers merged. (Docket Entry No. 61, Couette Decl. at ¶¶ 2-3). The
merger policy required ALPA to “provide the process” to integrate merging carriers’ pilot-seniority
lists. (Id., York Decl., Ex. A (Merger Policy) at 4). The process was to be applied by Merger
Committees, or Merger Representatives, representing each affected pilot group. For each merger,
each pilot group’s Master Executive Council would select its Merger Committee members. (Id.,
York Decl. at ¶¶ 2, 5). United and Continental each selected a Merger Committee to represent its
pilots in the seniority-integration process.
ALPA’s merger policy specified the procedures for integrating the pilot seniority lists. The
merged pilot groups would first try to agree on integrating the lists. If the parties could not agree,
they were to submit the disputed list-integration issues to binding arbitration. (Id. at 14-16). The
merger policy required the Merger Committees and the arbitrators to consider certain factors in
making the integrated list, but assigned the factors no preset weight or order of importance. The
factors include each pilot group’s career expectations, status and category,3 and longevity. (Id.,
York Decl., Ex. A (Merger Policy) at 14).
ALPA’s merger policy gave the Merger Committees “complete and full authority” to
“Status” refers to rank, such as captain or first officer. “Category” refers to the type of aircraft a pilot flies.
Examples are “B737 Captain,” or “A320 First Officer.” (Docket Entry No. 61 at 8).
negotiate and, if necessary, arbitrate a “fair and equitable” and “final and binding” integrated
seniority list. (Id., York Decl., Ex. A at 11, 15, 18). The parties agree that the ALPA merger policy
permitted the Merger Committees and the Master Executive Councils to “fashion their own process”
or protocols for resolving the disputed issues if they met certain “fundamental requirements.” (Id.
Continental and United agreed through their Master Executive Councils and Merger
Committees to follow a protocol for integrating the seniority lists. That protocol is set out in the
Transition and Process Agreement that the United and Continental Master Executive Councils,
ALPA, and the merged airlines signed.
(Id., York Decl., Ex. B (Transition and Process
Agreement)). The Master Executive Council for each pilot group elected its own Merger
Committee, which in turn retained its own counsel. The protocol called for arbitrators to be selected
from “an ALPA-maintained list of professional labor arbitrators, using the alternate-strike method
if necessary.” (Docket Entry No. 50, York Decl. at ¶ 8 and Ex. B, Att. B at 4).
The United and Continental pilot groups held informal discussions on integrating the lists,
but they could not agree. They proceeded to arbitration as called for by the merger policy and the
Transition and Process Agreement. (Id., York Decl. at ¶ 7). The Merger Committees consulted their
separate counsel and selected three arbitrators from the ALPA-maintained list.
arbitrators—Dana E. Eischen, Roger P. Kaplan, and Dennis R. Nolan—drew no objections. Under
the ALPA merger policy and the parties’ protocol, the arbitrators had the “final authority to establish
. . . procedural and evidentiary rules as deemed appropriate.” (Id., York Decl., Ex. A at 17 and Ex.
B, Att. B at 5).
ALPA’s merger policy prohibited it from paying “legal and consulting fees” for either pilot
group. (Id., York Decl., Ex. A at 22). Each group had to pay these fees through its Master
Executive Council’s Merger Assessment Fund. (Id.). At the same time, ALPA’s merger policy,
codified in § 45 of ALPA’s administrative manual, allowed a Merger Committee to retain
consultants of its choice. Yet another portion of the administrative manual provided that ALPA
could not retain a consultant who was an active pilot for an airline whose pilots ALPA represented.
(Docket Entry No. 50, Couette Decl., Ex. A at 73). The parties dispute what limits the merger policy
and the administrative manual imposed and whether ALPA violated them.
During the prehearing discovery, the parties disputed whether the Continental pilots could
discover the individual United pilots’ salary-payment records. The ALPA merger policy and the
parties’ Transition and Process Agreement required ALPA to obtain discoverable records from the
merging carriers and provide them to the pilot groups in the arbitration. (Docket Entry No. 50, York
Decl. Ex. A and B). The discovery dispute concerned the Continental pilot group’s request to obtain
the United pilots’ individual W-2 forms and whether ALPA could obtain that information from the
United pilots to produce to the Continental pilot group in the arbitration. The Continental pilot
group argued that individual pilots’ W-2 forms were relevant to show that United pilots had earned
less than Continental pilots flying the same-sized aircraft. The Continental pilot group argued that
this information was relevant to the integration factor of career expectations. (Id., York Decl. at ¶
The United pilot group objected that disclosing individual pilots’ W-2 was not necessary and
violated their privacy. (Id.). The parties had agreed in the Transition Process Agreement that
Joshua Javits, an arbitrator who was not involved in the list-integration decision, would decide
discovery disputes. (Id. at ¶ 9). ALPA sent one of its attorneys, Betty Ginsburg, to the hearing
Javits held on this discovery dispute. (Docket Entry No. 54, App’x. A, Tab 1 (Ginsburg Depo.) at
10:18-11:18). Ginsburg was an ALPA attorney regularly assigned to help United pilots with their
union business. (Id. at 8:21-9:2). Ginsburg stated on the record at the arbitration hearing that she
was present, but she made no other statements. (Docket Entry No. 50, Winston Aff., Ex. D
(Ginsburg Depo) at 13:25-14:9).
Javits and Ginsburg talked outside the hearing room during a break. Ginsburg later testified
that they did not discuss the merits of the case or the discovery dispute. (Id. at 22:2-23:25). Carr
disputes her credibility and alleges that Javits and Ginsburg did discuss the discovery dispute. Carr
argues that Javits had previously indicated his inclination to rule for the Continental pilot group by
denying the United pilot group’s objection, but he instead granted the United pilot group’s objection.
Carr asserts that Javits’s change in position supports the inference that talking to Ginsburg
The record shows that Javits granted the United pilot group’s objection, but only in part.
Javits ordered the production of United pilots’ wage information, but he limited it by allowing
United to redact the United pilots’ names and seniority numbers, an easy identifier, to protect their
privacy. (Docket Entry No. 50, York Decl., Ex. F (Javits Award) at 22-25). Javits also ordered that
each pilot’s seniority date be placed within a six-month range to give the Continental pilot group
the information relevant to the integration factors. (Id.).
A separate discovery dispute arose after this ruling. The United pilot group sought
information on when each Continental pilot had entered a defined-benefit plan. The United pilot
group argued that this information was relevant to the integration factor of longevity for those pilots
who joined Continental after it merged with a regional affiliated carrier. Continental pilots coming
from a regional affiliate were given priority positions on the Continental seniority list regardless of
their time as Continental pilots. The United pilot group argued that the dates the Continental pilots
entered a defined-benefit plan best indicated their actual longevity. The Continental pilot group
objected that the production request intruded on the Continental pilots’ privacy, the same ground
the United pilot group had asserted in opposing Continental’s request to produce individual pilots’
ALPA did not send a representative to the hearing on the production of the defined-benefit
plan documents. ALPA explains that documents showing when individual pilots joined a definedbenefit plan did not raise the same privacy concerns as the individual pilots’ W-2 forms. (Docket
Entry No. 54, App’x A, Tab 6 (York Depo.) at 47:12-24; 48:16-50:20). The requested production
of defined-benefits information did not, for example, seek specific earnings amounts for individual
pilots. (Id. at 47:12-24; 59:7-20).
Javits granted the United pilot group’s discovery request, overruling the Continental pilot
group’s objection. (Docket Entry No. 54, App’x G, Tab 4 (Javits Award II)). Although Javits did
not restrict the response or require redactions, he noted that the United pilot group had agreed to
steps protecting the confidentiality of the information. These steps included restricting the
information to the United Merger Committee and its counsel and requiring any discussion of the
information in the arbitration hearing to occur only in closed sessions. (Id. at 7).
The arbitration panel held 16 days of hearings between April and June 2013. (Docket Entry
No. 50, York Decl. at ¶ 7). The Master Executive Councils and Merger Committees of each pilot
group were represented by their chosen counsel throughout. Both sides submitted extensive direct
testimony, expert-witness reports and live testimony, and many documents. Both sides were
allowed ample cross-examination of the opposing side’s witnesses. Both sides presented proposals
for integrating the lists and pre- and posthearing briefs. Neither pilot group challenged the
arbitrators or the process or procedure they used until after the award issued on September 3, 2013.
Dr. Brian Campbell testified as an industry expert for Continental. In support of the listintegration factor of career expectations, Dr. Campbell testified that Continental was in a superior
financial position pre-merger and that Continental pilots had earned more than United pilots. United
countered Dr. Campbell’s testimony with the testimony of industry experts Morris Garfinkle and
Dan Akins. Mr. Garfinkle conceded that United had recently posted losses, but he argued that
economic pressures meant that neither airline had the option of remaining independent. Mr. Akins
testified that United had a stronger global franchise than Continental and disputed that United pilots
earned less than Continental pilots. Several Continental pilots testified for Continental, including
Captain James Brucia, the Chairman of the Continental Merger Committee.
One of the witnesses testifying in the arbitration for the United pilot group was Captain
James Harwood, a Delta Airlines pilot. Delta pilots are among those ALPA represents. (Docket
Entry No. 54, App’x A, Tab 4 (Harwood Depo), Ex. 2 at 3). Captain Harwood’s testimony included
his views on how the arbitrators could meet their obligation to consider pilots’ longevity as a factor
in the seniority-list order and also take into account their service for other carriers that either United
or Continental had acquired through mergers or acquisitions. This was particularly problematic for
the Continental pilots, many of whom had become Continental pilots when Continental acquired the
regional airlines they worked for. The problem was how to consider their pre-Continental service
as part of accumulated longevity when other pilots would show more Continental years of service
on a Continental-only list. (Docket Entry No. 54, App’x G, Tab 2 (Harwood testimony) at 2350:17-
Captain Harwood testified that the arbitrators could follow the method used in creating other
integrated-seniority lists. That method assumed that a pilot’s seniority ranking corresponds to his
or her longevity ranking, so that the highest-ranked pilot on the seniority list had the most longevity,
the next ranked pilot had the next-greatest longevity, and on down the list. Captain Harwood
testified that this method maintained the seniority of individuals within each group but also gave full
value to longevity. (Docket Entry No. 54, App’x G, Tab 2 (Harwood testimony) at 2374-81, 238689, 2390-98).
The final step, according to Captain Harwood, was to blend the status-and-category list with
the longevity list. The result would then be integrated with a “similarly blended list” for the other
pilot group. That would “create a weighted average between the two” groups. (Docket Entry No.
61, Defendant’s Brief at 9; 54, App’x G, Tab 2 (Harwood testimony) at 2402).
The Continental pilot group presented a competing proposal on how to apply the merger
policy requirement to consider the enumerated factors in deciding how to create the integrated
seniority list. Captain Brucia explained the rationale for Continental’s model for seniority-list
integration. (Docket Entry No. 50, York Decl., Ex. C. (Award) at 12). The model grouped captains
and first officers separately, but did not directly incorporate longevity. The model instead used a
pilot’s status as a captain or first officer as a proxy for longevity. (Id. at 12). Captain Brucia and
other Continental pilots also testified that United was overstaffed and Continental’s proposed model
discounted furloughed United pilots. The United pilots disputed pilot overstaffing and emphasized
the superior size of the aircraft in United’s fleet, arguing that United’s larger planes made it more
The arbitrators found that the “[United] hybrid proposal” was “conceptually truer to ALPA
merger policy than the [Continental] proposal.” (Docket Entry No. 50, York Decl., Ex. C at 34).
The panel concluded that “using a hybrid methodology that combines elements of both the Date-ofHire and Status/Category ratio models can reduce aggregate equity distortion.
straightforward combination of those two most commonly used methods in the [United] model was
a good conceptual base for building our [integrated-seniority list].” (Id.). By contrast, the
Continental Merger Committee’s methodology and the integrated seniority list it produced were
“incompatible with the revised ALPA Merger Policy. Aside from the windfall inequities generated
by using an April 1, 2013 snapshot date, total disregard of the longevity factor cannot possibly be
justified in the factual circumstances of this case.” (Id. at 22). The panel found that the Continental
pilot group’s integrated list was produced by “fatally defective methodology” and was “neither fair
nor equitable.” (Id.).
After the hearings ended, Captain Harwood worked as a member of the arbitration panel’s
technical-assistance team, made up of technical experts designated by both Merger Committees to
help the panel members get the data and analysis they needed to generate the integrated seniority
Captain Harwood’s testimony, his involvement after the arbitration hearings, and the
compensation he received, are a major basis for the Continental pilot group’s claim that ALPA
violated the duty of fair representation by allowing Captain Harwood to participate and by retaining
or paying him.
One issue is whether the United pilot group’s retention of Captain Harwood, and ALPA’s
failure to prevent that retention, violated ALPA rules. Section 60 of ALPA’s administrative manual
contains rules governing ALPA’s accounting and finance practices. One of these accounting and
finance rules, § 60.D.6, prohibits a Master Executive Council from hiring “active member pilots”
as consultants. Carr argues that this rule prohibited Captain Harwood from participating in the listintegration arbitration. ALPA’s Vice-President of Administration, William Couette, testified that
other sections of the administrative manual, which also codified the ALPA merger policy, permitted
Captain Harwood to participate. In this litigation, Couette points to § 45 of ALPA’s administrative
manual, which allows a Merger Committee to hire and pay consultants of its choice. Couette
interprets § 45 as independent of § 60.D.6 and as permitting the United pilot group’s Merger
Committee to retain Captain Harwood. (Docket Entry No. 61 at 12; Couette Decl. at ¶ ¶ 6-7 and Ex.
The parties also dispute whether ALPA affirmatively authorized Captain Harwood’s
involvement in the arbitration on the United pilot group’s behalf, or whether ALPA was asked only
whether Captain Harwood’s involvement created “political issues” because he was an active Delta
pilot. ALPA asserts that Captain Harwood asked its president only whether the United pilot group’s
retention presented a problem because Captain Harwood was a Delta pilot. (Docket Entry No. 61,
Second Winston Decl., Ex. N; (Harwood Depo.) at 10-12). Carr asserts that ALPA’s president was
asked to, and did, authorize Captain Harwood to assist the United pilot group in the arbitration,
citing the same deposition testimony. Carr also asserts that ALPA obtained Continental’s approval
of Captain Harwood’s participation, but that Continental conditioned its approval on Captain
Harwood doing only technical work and on payment by United, not ALPA. (Docket Entry No. 54,
Pierce Depo. at 113:5-114:25). ALPA asserts that the record does not show that it violated its fairrepresentation duty by not forbidding or limiting Captain Harwood’s involvement in the arbitration.
ALPA denies that it affirmatively authorized United to retain, or that it, as opposed to the United
pilot group’s Merger Committee, retained Captain Harwood to work for the United pilot group in
A related question is whether ALPA paid Captain Harwood for his work in the arbitration
as Carr contends. ALPA’s payment would be inconsistent with its position that the United Merger
Committee retained and paid Captain Harwood. ALPA contends that United’s Merger Assessment
Fund paid Captain Harwood, which would support ALPA’s position that the United pilot group’s
Merger Committee retained Captain Harwood. ALPA’s merger policy provides that “ALPA shall
not, under any circumstances, pay any legal and consulting fees incurred by pilot groups involved
in merger activity between any two ALPA represented carriers.” (Docket Entry No. 50, York Decl.,
Ex. A at 22). Carr cites ALPA’s LM-2 Form, which was submitted to the Department of Labor, as
indicating that ALPA paid Captain Harwood for his work. (Docket Entry No. 50, Griffith Decl.
Decl. Ex. 5). ALPA denies that it, as opposed to the United pilots’ Merger Assessment Fund, paid
Captain Harwood for his arbitration work. (Docket Entry No. 61 at 11; see also Docket Entry No.
50, York Decl. Ex. A at Part 3.C.1; Docket Entry No. 61, Second Winston Decl., Ex. N (Harwood
Tr.) at 10-11). ALPA asserts that any documents showing that it paid Captain Harwood at most
show duplicate payments erroneously made. (Docket Entry No. 50., Griffith Decl. at ¶ 6 and Exs.
Another issue is whether the substance of Captain Harwood’s testimony was sufficiently
supported and whether it “undermined the integrity of the arbitration” and caused an “erroneous
outcome.” (Docket Entry No. 61 at 4).
Finally, in response to the claim that ALPA interfered with the arbitration, ALPA asserts and
presents summary judgment evidence that it neither participated in the arbitration, nor
communicated with the arbitrators, on any topic relating to the merits. ALPA asserts that its
involvement was limited to providing logistical support, including scheduling where the hearings
would be held, arranging hotel rooms, and paying the arbitrators’ bills. (See Docket Entry No. 50,
York Decl. at ¶ 8 and Ex. C).
On September 3, 2013, the arbitrators issued a 46-page award that integrated the seniority
lists. (Docket Entry No. 50, York Decl., Ex. C). In the award, the arbitrators explained how they
incorporated each of the factors the ALPA merger policy required them to consider in integrating
the lists. (Id.). Although Carr claims that the list integration was unfavorable to the Continental
pilots, he does not allege that the arbitrators failed to consider the required factors in integrating the
After the award issued, the two Master Executive Councils sent a joint letter to the merging
pilot groups, confirming the incorporation of the award in the new joint collective-bargaining
agreement that would be effective immediately. The letter stated that the process set out in the
protocol the parties had agreed to follow to integrate the lists was “fair and equitable,” and that the
arbitration award should also be viewed as fair and equitable.
The Continental pilot group’s Master Executive Council chair sent the Continental pilots a
separate letter. It stated that while the chair disagreed with the award result, “the truth is that both
[Master Executive Councils] did agree on a process that was considered to be fair and equitable, and
that process was followed”; that before and during the arbitration hearing, he did not receive any
complaints that the process was “flawed”; and that “[o]nly after” the panel issued its award did
“some want to question the process.” (Docket Entry No. 50 at 6; York Decl. ¶ 19 and Exh. J; id.,
Winston Decl., Ex. A (Pierce Depo) at 148-50). The Continental Merger Committee issued a
separate report to the Continental pilot group, stating that it disagreed with the result but found no
basis to invalidate the award. (Id., York Decl. at ¶ 20 and Ex. K at 16; id., Winston Decl., Ex. A
(Pierce Depo) at 148-50).
The merged United Airlines implemented the integrated list, incorporating it into the new
United Pilots Agreement. The combined pilot groups have been working under that list for the past
Carr sued in early 2014, alleging that ALPA violated its duty of fair representation in
merging the seniority lists. He asked the court to vacate the arbitration award and order ALPA to
start a new integration process. Carr alleged that ALPA breached its duty of fair representation by
acting in bad faith. Carr alleges that ALPA preferred the United pilot group over the Continental
pilot group because it feared that if the United pilots—the much larger group—were dissatisfied
with the seniority list, they would try to displace ALPA as the bargaining representative for the
combined pilots group. This “could deal a massive financial and political loss to ALPA.” (Docket
Entry No. 41, Comp. ¶ ¶ 33, 39-44, 54). Carr cited ALPA’s experience in the 2008 U.S. Airways
and American West merger, which resulted in the U.S. Airways pilots rejecting ALPA as its union
representative, apparently because the smaller American West pilot group received a favorable result
in the postmerger seniority-list integration.
Carr alleges in this lawsuit that ALPA acted on its preference for the United pilot group and
breached its duty of fair representation by facilitating Captain Harwood’s participation in the
arbitration, in violation of ALPA rules; by engaging in ex parte discussions with arbitrators that
influenced the outcome, including how discovery disputes were resolved; and by refusing to
intervene when the United pilot group made improper political arguments during the arbitration.4
Each argument and response is analyzed below.
The Motion to Strike
Carr objected to some of ALPA’s summary judgment evidence and moved to strike it. The
objections are each addressed.
The York Declaration
ALPA submitted the declaration of Bruce York, the ALPA employee coordinating the
arbitration. In paragraph 8, York stated:
No ALPA staff or national officers participated, and, to the best of my knowledge,
none had contact with the arbitrators during the process regarding the merits of the
arbitration . . . . Also to the best of my knowledge, the Continental Merger
Representatives did not ask ALPA to say or do anything in response to arguments
made by the United pilots group during the merger proceedings.
(Docket Entry No. 50, York Decl. at ¶ 8). Carr objected that because York made these statements
“to the best of [his] knowledge,” he lacked personal knowledge and the statements are conclusory.
The challenged statements described what York saw and heard, and what he did not see or
He personally knows this information. York was heavily involved in coordinating the
arbitration for ALPA. He could reasonably be expected to hear about any communications between
people at ALPA with the arbitration panel or about any communications by Continental’s Merger
Committee members with ALPA. His statements are competent summary-judgment evidence, and
Carr’s objections are overruled.
In paragraph 15, York stated that the two pilot groups settled their dispute over United’s
The amended complaint asserts that ALPA breached the duty by acting arbitrarily, with discriminatory animus,
and in bad faith. (Docket Entry No. 41 at 19). In their response to ALPA’s motion, the plaintiffs advance only a bad
requested production of defined-benefits documents before Javits ruled on that issue. (Docket Entry
No. 50, York Decl at ¶ 15). Carr objected that York lacked personal knowledge to make the
statement, it is conclusory, and it violated the best-evidence rule by describing the terms or effects
of a written settlement.
The challenged statement was in York’s personal knowledge. He submitted a second
declaration stating that he helped draft ALPA’s request that United produce the defined-benefits
documents, based on the parties’ agreement. (Docket Entry No. 61, York Decl. at ¶ 4). The
statement was not conclusory because it addressed the specific fact that the parties had agreed to
resolve the specific discovery dispute. The statement did not violate the best-evidence rule; York
described the fact of the agreement and its timing—before the ruling on the discovery dispute
issued—not the terms set out in a document memorializing the settlement. The best-evidence rule
does not prevent a competent witness from describing a fact that exists independent of a writing,
even if the fact is also evidenced by a writing.
Carr also objects to Exhibit K to York’s declaration. Exhibit K is the Continental Master
Executive Council’s report on the arbitration award and the integrated list that resulted. The report
stated that the Council did not believe that ALPA breached the duty of fair representation in the
arbitration. Carr argues that the document was not properly authenticated and is hearsay and
improper opinion testimony.
York authenticated the report in his declaration. (Docket Entry No. 50, York Decl. at ¶ 20).
The document was not hearsay because it is an opposing party statement issued by the Continental
representatives after the arbitration, and the document is clearly relevant. The objection is
Carr objects to the declaration of William Couette, an ALPA executive. Couette properly
testified about ALPA’s interpretation of its own administrative manual and merger policy,
specifically, whether they allowed Captain Harwood’s participation in the arbitration. Couette could
also testify as to his understanding of how ALPA applied the manual and policy. The objection is
The Applicable Legal Standards
“Summary judgment is required when ‘the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.’” Trent v. Wade,
776 F.3d 368, 376 (5th Cir. 2015) (quoting FED. R. CIV. P. 56(a)). “A genuine dispute of material
fact exists when the ‘evidence is such that a reasonable jury could return a verdict for the nonmoving
party.’” Nola Spice Designs, LLC v. Haydel Enters., Inc.,783 F.3d 527, 536 (5th Cir. 2015) (quoting
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). “The moving party ‘bears the initial
responsibility of informing the district court of the basis for its motion, and identifying those
portions of [the record] which it believes demonstrate the absence of a genuine issue of material
fact.’” Id. (quoting EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014)); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
“Where the non-movant bears the burden of proof at trial, the movant may merely point to
the absence of evidence and thereby shift to the non-movant the burden of demonstrating by
competent summary judgment proof that there is an issue of material fact warranting trial.” Id.
(quotation marks omitted); see also Celotex, 477 U.S. at 325. Although the party moving for
summary judgment must demonstrate the absence of a genuine issue of material fact, it does not
need to negate the elements of the nonmovant’s case. Boudreaux v. Swift Transp. Co., 402 F.3d 536,
540 (5th Cir. 2005). “A fact is ‘material’ if its resolution in favor of one party might affect the
outcome of the lawsuit under governing law.” Sossamon v. Lone Star State of Texas, 560 F.3d 316,
326 (5th Cir. 2009) (quotation omitted). “If the moving party fails to meet [its] initial burden, the
motion [for summary judgment] must be denied, regardless of the nonmovant’s response.” United
States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir. 2008) (quoting Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
“Once the moving party [meets its initial burden], the non-moving party must ‘go beyond
the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is a genuine issue for trial.’” Nola
Spice, 783 F.3d at 536 (quoting EEOC, 773 F.3d at 694). The nonmovant must identify specific
evidence in the record and articulate how that evidence supports that party’s claim. Baranowski v.
Hart, 486 F.3d 112, 119 (5th Cir. 2007). “This burden will not be satisfied by ‘some metaphysical
doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only
a scintilla of evidence.’” Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075). In deciding
a summary-judgment motion, the court draws all reasonable inferences in the light most favorable
to the nonmoving party. Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008); see also Nola Spice,
783 F.3d at 536.
The Duty of Fair Representation
The duty of fair representation requires a union “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.” O’Neill v. ALPA, 939 F.2d 1199, 1201 (5th Cir. 1991)
(quoting Vaca v. Sipes, 386 U.S. 171, 177 (1967)). The fact that a union decided a dispute in a way
that favored one group’s interests over another is insufficient to show a breach of the duty. Id. at
1204. A “breach of the statutory duty of fair representation occurs only when a union’s conduct
toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Id.
at 1201 (quoting Vaca, 386 U.S. at 190). ALPA limits its challenge to bad faith.
Bad faith occurs when a union acts with a “motive to harm” a particular group. Id. at 1204;
see also Simo v. Union of Needletrades, Sw. Dist. Council, 322 F.3d 602, 618 (9th Cir. 2003) (“[T]he
discrimination and bad faith analyses look to the subjective motivation of the Union officials.”).
Bad faith is a “demanding standard” that is met only by a “sufficiently egregious” union action.
O’Neill, 939 F.2d at 1204 (quoting Alicea v. Suffield Poultry, Inc., 902 F.2d 125, 130 (1st
Cir.1990)). Unions have discretion when resolving internal disputes between conflicted groups and
their actions are judged by a “wide range of reasonableness.” Id. (quoting Ford Motor Co. v.
Huffman, 345 U.S. 330, 338 (1953)). An action breaches the union’s duty only if it “seriously
undermine[s] the integrity of the arbitral process.” Hines v. Anchor Motor Freight, Inc., 424 U.S.
554, 567 (1976). Even if a plaintiff shows that the union breached its duty, the plaintiff must also
show that the breach “contributed to the erroneous outcome of the contractual proceedings.” Id. at
568; Wood v. Int’l Bhd. of Teamsters, Local 406, 807 F.2d 493, 500 (6th Cir. 1986).
A union satisfies its fair representation duty in a postmerger seniority-integration dispute by
establishing “a fair process for determining seniority” before the dispute arises. Air Wisconsin
Pilots Prot. Comm. v. Sanderson, 909 F.2d 213, 216 (7th Cir. 1990) (emphasis in original). One
example of a fair process is a process to refer disputes about seniority-list integration after airlines
merge to arbitration, under rules that require neutral arbitrators to integrate the seniority lists without
intending to favor one pilot group over the other. Id. at 216. The duty of fair representation does not
require a union to ensure a “fair” result in resolving disputes, including disputes over seniority-list
integration. See O’Neill, 939 F.2d at 1201.
The process ALPA adopted and implemented met the requirements for fairness. ALPA
adopted a merger policy years before this merger occurred and the disputes arose. The merger
policy separated ALPA from the responsibility or ability to decide how to integrate the merged
airlines’ seniority lists. Instead, arbitrators chosen in a manner designed to facilitate neutrality had
the exclusive authority to integrate the lists, and the pilot groups and ALPA agreed to be bound by
The merger policy required the arbitrators to consider the pilots’ career expectations,
longevity, and status and category in constructing the integrated seniority list. The requirement
facilitated a disciplined, objective approach to integrating the seniority lists rather than a subjective
“this looks right” approach that could allow subjective preference for one pilot group over the other.
The merger policy and the parties’ agreement allowed the pilot groups to vary the process as long
as it was consistent with the merger policy. With counseled guidance, the pilot groups did so in the
protocol they adopted. The merger policy and the parties’ protocol gave the arbitrators, not ALPA,
the power to control the specifics of the arbitration procedure, including how to rule on discovery
disputes and on evidentiary issues. When the Continental and United pilot groups’ Merger
Committees could not agree on integrating the lists, ALPA implemented
procedures and processes.
Carr’s arguments as to why a breach occurred do not attack core aspects of the integration
process or procedures ALPA and the parties agreed to use. Carr does not challenge the arbitration
process or the procedures used in the arbitration. Instead, he argues that ALPA interfered
improperly in otherwise fair processes and procedures. But none of the alleged interferences are
“sufficiently egregious” to support an inference that they “seriously undermined” the integrity of
the arbitration or the list integration that resulted. A thorough review of the record evidence shows
a fair arbitration process, no bad faith on ALPA’s part, and no breach of the duty of fair
representation it owed.
Carr alleged that ALPA favored United in the arbitration because United was the larger of
the two pilot groups. Carr cited the 2008 merger between U.S. Airways and American West to
support an inference of bad faith. ALPA represented the pilots of both airlines. As in this case,
ALPA facilitated the postmerger seniority-list integration. After the lists were integrated, U.S.
Airways pilots left ALPA’s representation because they believed that the American West pilots
received unduly favorable positions on the integrated seniority list. Carr alleges that ALPA
preferred United in the list integration out of fear that the United pilots would also end ALPA’s role
as the merged carriers’ pilots’ representative if they did not prevail.
Carr argued that ALPA’s involvement in Captain Harwood’s work in the arbitration showed
that ALPA intended to favor United and took action to implement that intent. Carr argues that
Captain Harwood could not have participated in the arbitration as a witness or in the team that
provided technical assistance to the panel unless ALPA’s president had authorized him to do so.
Carr argued that allowing Captain Harwood to participate violated ALPA’s accounting and finance
rules. Carr also argued that some evidence in the record supports an inference that ALPA, not the
United Merger Committee, retained Captain Harwood and paid him for at least some of his work.
ALPA responds that the evidence shows that United, not ALPA, retained Captain Harwood;
that United could retain him as a consultant and neither the ALPA merger policy nor its accounting
and finance rules clearly prohibited that; and that United, not ALPA, paid Captain Harwood for his
Carr’s argument that allowing Captain Harwood’s participation as a United consultant
breached ALPA’s duty of fair representation because his participation violated ALPA’s accounting
and finance rules fails as a matter of law. Even if allowing his participation was inconsistent with
ALPA’s accounting and finance rules, that did not breach ALPA’s duty of fair representation when,
as here, the process was otherwise fair. Rakestraw v. United Airlines, Inc., 981 F.2d 1524, 1533 (7th
Cir. 1992), is instructive. In Rakestraw, a regional airline merged with the larger Trans World
Airlines. ALPA represented both pilot groups. The pilot groups could not agree on seniority-list
integration, and the regional pilots invoked arbitration under ALPA’s merger policy. ALPA’s
president deferred submitting the dispute to arbitration, seeking nonbinding mediation instead.
Trans World Airlines then announced that it would not hire any of the regional pilots, and instead
would transfer the regional airline’s aircraft to Trans World Airlines and staff those planes with
existing Trans World Airlines pilots. Faced with this threat, the regional pilots agreed to senioritylist integration on terms that favored the Trans World Airlines pilots. Rakestraw, 981 F.2d 1526-27.
The regional pilots then sued, alleging that ALPA breached its duty of fair representation by not
following its merger policy requirement for arbitration when the pilot groups could not agree.
In the lawsuit, the regional pilots argued that ALPA was afraid that if the much larger Trans
World Airlines pilot group was unhappy with the list-integration results, the group would abandon
ALPA as its union representative. The regional pilots argued that ALPA improperly caved in to the
Trans World Airlines pilot group’s pressure by delaying the arbitration required under the merger
policy and instead pursuing nonbinding mediation. Id. at 1533. ALPA responded that it sought
mediation to prevent contentious litigation between the pilot groups and to reduce the likelihood that
Trans World Airline would simply abandon the regional pilots.
The court held that ALPA did not breach its duty of fair representation owed to the regional
pilot group. The court noted that although “[a]dhering to [merger] policy insulates the union against
a charge . . . [of] violat[ing] the duty of fair representation[,] . . . [i]t does not follow that deviation
exposes the union to liability. Id. Although ALPA’s president violated the merger policy by
deferring the arbitration and using nonbinding mediation, his decision was a judgment call not
motivated by bad faith. Instead, the record supported his decision as an attempt to protect the
regional airlines from the economic pressure Trans World Airlines was able to exert. The court
noted that the judgment call may have been wrong, “but a mistake in judgment does not violate the
duty of fair representation.” Id. Because the overall process was fair, the president’s violation of
ALPA’s merger policy did not breach its duty of fair representation. Id.
In the present case, ALPA’s president’s decision to allow United to retain Captain Harwood
as a consultant in the arbitration, or at least not to forbid United from retaining Captain Harwood,
may have violated ALPA’s accounting and finance rules. But the interaction between the merger
policy and administrative manual sections containing the accounting and finance rules that prevent
a pilot group from retaining an active pilot as a consultant, and the sections that allow a pilot group
broad discretion and authority in selecting and retaining consultants, is unclear. And even assuming
that ALPA’s president’s decision violated ALPA’s accounting and finance rules, that does not create
a factual dispute material to deciding whether bad faith motivated ALPA, or support an inference
that ALPA acted with the intent to disfavor the Continental pilot group. Here, as in Rakestraw, the
process was otherwise fair. Although ALPA did not prevent Captain Harwood’s participation, Carr
has not presented or pointed to summary-judgment evidence that bad faith motivated that decision
or that ALPA intended to disfavor the Continental pilot group to placate the United pilots and keep
them in ALPA’s client roster.
The uncontroverted evidence shows that ALPA allowed Captain Harwood to participate as
a United-retained consultant whose primary role would be providing technical assistance on list
integration to the United pilot group and, with other technical-team members selected by Continental
and United, to the arbitration panel. (Docket Entry No. 54, Pierce Depo. at 113:5-114:25). Carr
does not claim, nor does the record show, that Continental objected in the arbitration to Captain
Harwood’s participation. The arbitrators could have excluded Captain Harwood from testifying or
providing technical assistance to them if they found his participation to be improper. The arbitrators
retained the power to exclude witnesses.
ALPA’s failure to prevent Captain Harwood’s
participation did not “seriously undermine the integrity of the arbitral process,” which was
otherwise fair, and which the neutral arbitrators—not ALPA—controlled, even if the failure violated
ALPA’s accounting and finance rules. See Hines, 424 U.S. at 567; see also Air Wisconsin, 909 F.2d
at 216 (“The plaintiffs disagree violently with the result of the arbitration . . . but have not pointed
to the procedures they employed—as being unfair”).
Carr asserted that Captain Harwood’s testimony and posthearing work made him an advocate
for integrating the lists to favor United. But the record does not show that either Captain Harwood’s
testimony or posthearing technical assistance “advocated” a particular United approach that was
otherwise unsupported. To the contrary, the record shows ample support for the analytical approach
Captain Harwood advocated to account for the longevity of the Continental pilots who worked for
regional carriers that Continental acquired or merged with. The arbitrators’ award explains the basis
for finding that the approach Captain Harwood testified to was superior to the analysis Continental’s
retained experts offered. (Docket Entry No. 50, York Decl., Ex. C at 21-23, 34).
ALPA’s alleged compensation of Captain Harwood was not in bad faith, for similar reasons.
The record does not show that ALPA acted to disfavor the Continental pilot group or that any
payment to Captain Harwood harmed the Continental pilot group. ALPA’s merger policy gave both
parties sources of funding to retain consultants in the arbitration. The merger policy allowed both
Master Executive Councils to require their members to pay a fee that could be used to pay for legal
and consulting fees incurred in list- integration disputes. (Id., Ex. A at 22). If the funds were not
enough to cover the expenses, the ALPA merger policy allowed the Master Executive Councils to
petition ALPA’s president for supplemental funding. (Id.). Carr does not allege, and the record
does not show, that ALPA’s payment of Captain Harwood put the Continental pilot group at a
financial disadvantage in the arbitration. The Continental pilot group had ample funding to hire its
own consultants to counter Captain Harwood’s testimony, and it did so. Even if evidence showed
that ALPA paid some of Captain Harwood’s expenses, and that the payment violated ALPA rules
or was poor judgment, as in Rakestraw, the overall process was fair.
The cases Carr cited are distinguishable. In Nellis v. Air Line Pilots Ass’n, 815 F. Supp.
1522 (E.D. Va. 1993), ALPA represented pilots from Eastern Air Lines. Eastern pilots went on
strike and Eastern Air Lines filed for bankruptcy protection. Eastern’s assets, including planes,
routes, and gate slots, were sold to airlines whose pilots were also represented by ALPA. The
Eastern pilots alleged that ALPA’s “fragmentation” policy required it to negotiate the transfer of
Eastern pilots to the airlines acquiring the Eastern assets and to protect the transferred pilots’
seniority. The Eastern pilots alleged that ALPA violated this fragmentation policy and actively
blocked the Eastern pilots’ transfer to the airlines purchasing Eastern’s assets, under pressure from
the pilots ALPA represented at the airlines purchasing the assets. The court held that ALPA did
violate its duty of fair representation to the Eastern pilots. But the court also stated that had ALPA
violated the fragmentation policy, that would establish a breach. Nellis, 815 F. Supp. at 1524-28,
In Nellis, unlike the present case, ALPA—not a three-member arbitration panel—was the
exclusive authorized decisionmaker. The fragmentation policy at issue in Nellis was the key
substantive issue in the case. There was a clear basis for holding that had ALPA violated that
policy, it would have been acting with the intent to disadvantage one pilot group to benefit the
others. See Rakestraw, 981 F.2d at 1533; Air Wisconsin, 909 F.2d at 216. There was also evidence
in Nellis that ALPA’s alleged deviation from the fragmentation policy resulted from political
pressure from certain pilot groups. See Nellis, 815 F. Supp. at 1529 (discussing communications
between ALPA and representatives of pilot groups in which the representatives urged action that the
plaintiffs alleged violated ALPA’s fragmentation and merger policies).
In the present case, by contrast, ALPA did not make the substantive and evidentiary
decisions presented in the arbitration. Carr challenged specific instances of ALPA alleged
interference in an overall fair procedure and process for resolving the disputed issues. Carr did not
allege that ALPA interfered in any substantive issue, and the record does not show that ALPA’s role
affected the outcome or seriously undermined the integrity of the arbitration. See Rakestraw, 981
Carr also cited Humphrey v. Moore, 375 U.S. 335, 351 (1964), and Williams v. Romano
Bros. Beverage Co., 939 F.2d 505, 509 (7th Cir. 1991). Both cases suggested that a union may
breach its duty when representing an employee if the union impedes the employee’s ability to
present evidence. Humphrey, 375 U.S. at 350-51; Williams, 939 F.2d at 509. The record does not
show that Captain Harwood’s participation in the arbitration prevented the Continental pilot group
from presenting evidence or argument. The Continental pilot group had ample opportunity to crossexamine Captain Harwood and to introduce competing evidence from its own experts.
The communications between ALPA officials and the arbitrators did not breach the duty of
fair representation. An ex parte communication with an arbitrator does not breach the duty of fair
representation unless the communication improperly influenced the arbitrator. Shait v. The
Millennium Broadway Hotel, No. 00 CIV. 5584 GEL, 2001 WL 536996, at *10 (S.D.N.Y. May 18,
2001); see also Glass Workers Int'l Union, Local 182B v. Excelsior Foundry Co., 56 F.3d 844, 846
(7th Cir. 1995) (refusing to vacate labor arbitration award based on a “harmless” ex parte
communication); Int’l Ass’n of Machinists, S. Texas Dist. Lodge No. 37 v. Dynamic Sci., Inc., 322
F. Supp. 2d 817, 823 (S.D. Tex. 2004) (refusing to vacate labor arbitration award because the
plaintiff had not shown that an ex parte communication with arbitrator influenced the outcome);
Hakala v. Deutsche Bank AG, No. 01 CIV. 3366(MGC), 2004 WL 1057788, at *4 (S.D.N.Y. May
11, 2004) (same). The ex parte communication also must “so affect the rights of a party that it
may be said that he was deprived of a fair hearing.” Dynamic, 322 F. Supp. 2d at 823 (quoting
Forsythe Int’l, S.A. v. Gibbs Oil Co. of Texas, 915 F.2d 1017, 1023 (5th Cir. 1990)). None of the
ex parte communications Carr alleged meet this standard.
In one email sent during the arbitration hearing, York told Dana Eischen, one of the
arbitrators, that they were likely to be unpopular, stating “we’ll soon see all three photos on
the wall in the U.S. Post Office.” This statement did not indicate a preference for either side
in the dispute. It merely noted the intensity of the dispute between the pilot groups. There
was also no evidence that this communication influenced the arbitrators to rule more
favorably for the United pilot group.
Eischen also told York in an email, “Will call you when I can to give you a progress report
on how things are going.” There is no evidence as to whether or when this call took place,
whether any conversation was substantive in nature, or that it influenced the arbitrators to
favor the United pilot group.
Two weeks before the award issued, Eischen told York that the panel was on schedule to
issue the award and that he had “more later” to say. There is nothing improper about
Eischen telling York the panel’s expected schedule for issuing the award. As to Eischen’s
statement that he would tell York “more later,” there is again no evidence as to whether or
when there was a later conversation, whether it covered any substantive issues, or that it
influenced the arbitrators’ ruling.
Two days before the award issued, Eischen told York, “one of these days I’ll tell you some
stories.” Again, there is no evidence as to what followed or that this communication
influenced the arbitrators.
Carr cited Barrington v. Lockheed Martin, No. 605CV1601ORL19KRS, 2006 WL 66720
(M.D. Fla. Jan. 11, 2006). In that case, a union member represented by her union in a dispute
against her employer alleged that the union representative was biased against her and had engaged
in ex parte communications with the arbitrator. The plaintiff alleged that the union representative
had caused the arbitrator to form a negative opinion about her. Barrington, 2006 WL 66720 at *7.
The court denied the union’s motion to dismiss because the communications, “if true,” would have
undermined the integrity of the arbitration. Id. This case is easily distinguishable. In Barrington,
the court ruled on a challenged motion to dismiss. In this case, ALPA filed a motion for summary
judgment with a voluminous record, giving the court a much more detailed basis for ruling than the
allegations in a complaint challenged on a motion to dismiss. Carr did not submit or point to
evidence in the summary-judgment record creating a factual dispute material to determining whether
there were ex parte communications adverse to the Continental pilot group that influenced the
arbitrators, or point to evidence supporting an inference that these communications took place.
Dynamic, 322 F. Supp. 2d at 823.
Nor do the discovery disputes support an inference that ALPA breached a duty owing to the
Continental pilot group. Carr did not point to or submit evidence that ALPA failed to set up a fair
process for resolving discovery disputes. Javits, not ALPA, had the exclusive authority to resolve
the disputes. (Docket Entry No. 50, Ex. B at 14-15). Carr alleged that Javits granted key discovery
to the United pilot group but denied the Continental pilot group’s similar discovery request. The
differences between the discovery sought in each of the two production requests, and the limits on
the documents produced to protect individual pilot privacy while allowing each side to obtain
needed information, are amply demonstrated in the record. The record undermines Carr’s
Carr argues that sending Ginsburg to the hearing on one discovery dispute but not the other
signaled to Javits that ALPA wanted him to resolve both disputes to favor the United pilots group.
The record does not support this attenuated series of inferences. See Wood v. Int'l Bhd. of
Teamsters, Local 406, 807 F.2d 493, 501 (6th Cir. 1986). ALPA has explained the differences in
how it viewed the two disputes and the hearings on each. There is no evidence that in the hearing
she attended, Ginsburg indicated which side of the dispute ALPA favored. Ginsburg’s only
statement on the record was her appearance. Carr alleges that during a break in the hearing,
Ginsburg and Javits talked in the hallway. But there is no evidence that Javits and Ginsburg
discussed the merits or that Javits’s decision was influenced by anything Ginsburg said. Javits’s
decisions were reasoned and explained, and accompanied by steps to provide core information to
Continental about the United pilots’ compensation while protecting individual-pilot privacy. Carr
has not shown that those discovery rulings undermined the Continental pilot group’s ability to
present its case at the arbitration. See Shait, 2001 WL 536996, at *10; Dynamic, 322 F. Supp. 2d
at 823 (S.D. Tex. 2004).
Carr argues that ALPA breached its duty of fair representation when it did not step in to
interrupt the United pilot group’s closing arguments that allegedly improperly encouraged the
arbitrators to consider the political impact of their decision on ALPA. Carr does not identify, and
the court has not found, case authority for the proposition that a union must interject itself in this
fashion into an arbitration that has valid processes and procedures in place. Instead, the case law
appears to support the proposition that a union’s duty is satisfied by establishing neutral and valid
processes and procedures for the arbitration. See Air Wisconsin, 909 F.2d at 216. ALPA set up a
neutral decisionmaking process that required the arbitrators to consider specific factors in merging
the lists. None of the factors is a “political” consideration.
The uncontroverted evidence in the record shows that, as a matter of law, ALPA did not
breach its duty of fair representation to the Continental pilot group. There is no basis to find a
factual dispute material to determining whether ALPA breached its duty or to support an inference
that it did so. ALPA’s motion for summary judgment is granted.
Carr’s motion to strike, (Docket Entry No. 55), is denied. ALPA’s motion for summary
judgment, (Docket Entry No. 50), is granted. Final judgment is entered by separate order.
SIGNED on July 29, 2016, at Houston, Texas.
Lee H. Rosenthal
United States District Judge
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