Freitas et al v. Republic Airways Holdings Inc. et al

Filing 33

ORDER signed by Judge Rudolph T Randa on 11/10/2011 granting in part and denying in part 12 Motion for Summary Judgment. (cc: all counsel) (Koll, J)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ANTHONY J. FREITAS,
KENNETH A. KRUEGER,
DONALD TILL, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS,
Plaintiffs,
-vs-

Case No. 11-C-358

REPUBLIC AIRWAYS HOLDINGS, Inc., and
MIDWEST AIRLINES, Inc.,
Defendants.

DECISION AND ORDER

The plaintiffs, former Midwest airline pilots and their certified representatives under
the Railway Labor Act (“RLA”), bring this action to compel Republic Airways Holdings,
Inc. (“RAH”) and Midwest Airlines, Inc. (“Midwest”) to participate in grievance resolution
proceedings before the Midwest-Air Line Pilots Association (“ALPA”) System Adjustment
Board. Plaintiffs move for summary judgment. For the reasons that follow, this motion is
granted with respect to Midwest, but denied with respect to RAH.
I.

BACKGROUND
RAH is an airline holding company incorporated in Delaware. In July 2009, RAH

acquired Midwest, and Midwest became a wholly owned subsidiary of RAH.1 RAH also

1
For more background on this transaction, see Committee of Concerned Midwest Flight Attendants v. Int’l Bhd.
of Teamsters, 742 F. Supp. 2d 1035 (E.D. W is. 2010).

owns Chautauqua Airlines, Inc., Shuttle America Corporation (“Shuttle”), Republic Airline
Inc. (“RA”), and Frontier Airlines, Inc. (“Frontier”). Anthony Frietas, Kenneth Krueger and
Donald Till were actively employed as Midwest pilots until Midwest stopped flying routes
in November of 2009.
For a relatively brief period of time after Midwest was acquired by RAH, Midwest
continued to operate as a separate air carrier, providing air transportation services under its
own DOT and FAA operating certificates with its Boeing 717 aircraft fleet. The B-717s
were operated by the Midwest pilots pursuant to the Midwest-ALPA CBA. However, on
November 3, 2009, Midwest returned the last of its B-717 aircraft and laid-off its remaining
pilots. Midwest provided no transportation services and employed no active pilots since this
date. By November 13, 2009, the last of the B-717s were returned to Boeing, and Midwest
no longer had any aircraft on its DOT and FAA operating certificates. After Midwest ceased
operations, RA d/b/a Midwest Airlines continued to operate flights under the Midwest brand
and “YX” code using RA E-170 and E-190 aircraft and RA crews. The Midwest brand was
discontinued effective October 1, 2010.
Some of the former Midwest pilots were offered employment at Chautauqua, RA,
Shuttle and Frontier.

The pilots that accepted offers of employment are considered

employees of the applicable carrier. Approximately 37 former Midwest pilots are employed
at one of the RAH subsidiary carriers. Except for several pilots who retired or resigned since
Midwest ceased operations, the rest of the former Midwest pilots remain on furlough status
and are not actively employed by any RAH-affiliated carrier. The total number of Midwest

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pilots on furlough is 344. In the Matter of Int’l Bhd. of Teamsters, Airline Div., 38 NMB
138, 147 (2011); D. 1-1.
At the time of the acquisition, Midwest pilots were represented by ALPA and covered
by a collective bargaining agreement between Midwest and ALPA. On April 7, 2011, the
National Mediation Board found that “Chautauqua, Shuttle, RA, Frontier, and Lynx are
operating as a single transportation system (Republic Airlines et al./Frontier) for the craft or
class of Pilots for representation purposes under the RLA” and that the “former Midwest
Pilots are included in the single transportation system.” 38 NMB 138, 157. On June 28,
2011, the NMB certified the International Brotherhood of Teamsters (“IBT”) as “duly
designated and authorized to represent for the purposes of the RLA, as amended, the craft
of class of Pilots, employees of Republic Airlines et al./Frontier, its successors and assigns.”
In the Matter of the Representation of Employees of Republic Airlines, et al./Frontier Pilots,
38 NMB 245, 246 (2011); D. 20-1. Upon being certified, the IBT intervened and replaced
ALPA as co-plaintiffs in this lawsuit.
The grievances at issue involve the following provisions of the collective bargaining
agreement between ALPA and Midwest. Section 1.B.1 (the “scope” clause) provides, with
certain exceptions, that “all commercial flight operations (whether revenue, non-revenue,
scheduled or non-scheduled) conducted by the Company will be flown by pilots whose
names appear on the Midwest Airlines, Inc., Pilot Seniority List.” Section 1.D.1 through
1.D.3 (the “successorship” clause(s)) provides as follows:
1.
This Agreement shall be binding on any successor, including
but not limited to any merged company or companies, purchaser,
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assign, assignee, transferee, receiver, administrator, executor, and/or
trustee of the Company, if any.
2.
Neither the Company nor an affiliate of the Company . . . will
conclude any agreement for a Successorship Transaction unless the
Successor agrees in writing to assume and be bound by the
Agreement, . . . and to employ the pilots on the Midwest Airlines,
Inc., Pilot System Seniority List in accordance with the provisions of
the Agreement.
3.
The term “Successorship Transaction” shall mean a transfer
. . . to the successor of the ownership and/or control of all or
substantially all of the equity securities and/or assets of the Company.
a.
In the event of a Successorship Transaction
which results in an operational merger in which the
Successor is an air carrier or any person or entity that
controls or is under the control of an air carrier, the
Successor shall provide the Company’s pilots with the
seniority integration rights provided in Sections 3 and
13 of the Labor Protective Provisions specified by the
Civil Aeronautics Board in the Allegheny-Mohawk
merger (“Allegheny-Mohawk LPPs”) . . .
Finally, Section 27.B (the “Retirement Coverage” clause) provides that retiree health
insurance coverage “will remain in effect for pilots, their spouses, dependents, and surviving
spouses, for the duration of the Agreement. The cost for retiree medical benefits will be the
same terms as is presently or hereafter made available to other crafts and classes of Midwest
Airlines, Inc. employees. The Company will, prior to any increase in monthly insurance
costs, notify the Association and provide an opportunity to discuss such change prior to the
implementation of such change.”
On November 23, 2009, ALPA filed a grievance (the “scope” grievance) with
Midwest alleging as follows:

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The Company’s decision to discontinue its own flying and transfer
former Midwest flying to Republic Airlines and Frontier Airlines,
which conduct such flying as a d/b/a Midwest operation performed
solely under those carriers’ respective certificates, and not pursuant
to a codeshare with now-idled Midwest, constitutes a violation of
Section 1.B.1. [of the Midwest/ALPA collective bargaining
agreement] in that commercial flight operations conducted by the
Company will be operated by pilots other than those on the Midwest
Airlines, Inc., Pilot System Seniority List. This action also violates
Section 1.C.1. [of the collective-bargaining agreement, which permits
subcontracting of flying under certain conditions] in that the
Company has failed to satisfy all requisite elements for
subcontracting to occur.
On December 30, 2010, ALPA expanded its grievance by serving both Midwest and
RAH with an amended and supplemental grievance (the “amended scope & successorship”
grievance). This grievance raised three claims:
First, Midwest’s and RAH’s decision to operate on or after
November 3, 2009, as a ‘virtual airline’ through its subsidiary
Republic Airlines, Inc. d/b/a Midwest Airlines, and then to integrate
its Midwest operations with the operations of its other subsidiary,
Frontier Airlines, deprived the pilots holding seniority on the
Midwest Airlines, Inc., Pilot System Seniority List of their
contractual rights under the Agreement to perform all flying by
Midwest and RAH. That violation, as alleged in the November 23,
2009 Grievance began on November 3, 2009, and is a continuing
contract violation. In addition to depriving Midwest pilots of
employment, this violation has further[] injured them in that it has
deprived them of placement on the integrated seniority list, which is
currently being devised, where their equities would have placed them
if RAH had honored its obligations under the Agreement and
continued to use pilots holding seniority on the Midwest Airlines,
Inc., Pilot System Seniority List to perform Midwest flying.
Second, the Agreement is binding on RAH as the successor to
Midwest under Section 1.D.1 of the Agreement, and, thus, pilots
holding seniority on the Midwest Airlines, Inc., Pilot System
Seniority List are entitled to the benefits provided by that Agreement
whenever performing any service for RAH or any of its operating
subsidiaries. At present, RAH and representatives of the RAH pilots
are devising an integrated seniority list. Once that list is effective, it
will entitle pilots holding seniority on it to positions in the integrated
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operations and elsewhere within the RAH system. At the same time,
Midwest pilots are entitled to the benefits of the Association/Midwest
Agreement when performing services for RAH. RAH, however, has
taken the position that the Association/Midwest Agreement is no
longer of any force and effect. This position has deprived, and
continues to deprive, Midwest pilots of the benefits to which they are
entitled under the Agreement.
Third, there are certain aspects of the Agreement that create vested
rights in the Midwest pilots, such as longevity and recall, which are
binding on RAH as the successor to Midwest Airlines. RAH is
denying the Midwest pilots it hired between November 3, 2009 and
today of those vested rights, first by not recalling them in seniority
order and second by treating those who have been hired as new-hires
without any credit for their service as Midwest pilots for pay and
benefit purposes. That violation is continuing.
In addition to the relief requested in the November 23 scope grievance, ALPA
requested the following relief in the amended scope & successorship grievance: (1) an Award
declaring that RAH is the successor to Midwest and that the Agreement is binding on RAH
and its subsidiaries; (2) an Award directing Midwest and RAH to make whole all Midwest
pilots who have not been employed to fly the Midwest brand; (3) an Award directing RAH
to make whole the Midwest pilots it has hired as new employees since November 3, 2009,
for the pay and benefits they should have received had RAH credited them with their
longevity as Midwest pilots for pay and benefit purposes; and (4) such further action as may
be deemed just and equitable, including a pay supplement to all Midwest pilots (recalled and
furloughed) who have been deprived of their proper place on the integrated seniority list due
to Midwest’s and RAH’s violation of the Agreement.
Finally, on December 30, 2010, ALPA served a grievance challenging the decision
to discontinue certain health insurance coverage provided to retired Midwest pilots, their

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spouses and their dependents pursuant to Section 27.B (the “Retirement Coverage”
grievance).
II.

ANALYSIS
Summary judgment should be granted if “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.”
Fed. R. Civ. P. 56(a). The plain language of the rule “mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The Court must accept as true the evidence of the nonmovant and
draw all justifiable inferences in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). Summary judgment is appropriate only if, on the record as a whole, a rational
trier of fact could not find for the non-moving party. Rogers v. City of Chi., 320 F.3d 748,
752 (7th Cir. 2003). Summary judgment motions brought at the outset of litigation are
expressly allowed under the federal rules. “Unless a different time is set by local rule or the
court orders otherwise, a party may file a motion for summary judgment at any time until 30
days after the close of all discovery.” Fed. R. Civ. P. 56(b).
A.

Motion to compel RAH to arbitrate

Section 204 of the Railway Labor Act directs the establishment of a “board of
adjustment” for the resolution of “disputes between an employee or group of employees and
a carrier or carriers by air growing out of grievances, or out of the interpretation or

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application of agreements concerning rates of pay, rules, or working conditions . . .” 45
U.S.C. § 184. Plaintiffs move to compel Midwest and RAH to adjust their grievances before
the adjustment board established pursuant to the Midwest/ALPA collective bargaining
agreement. Midwest is a party to that agreement; RAH is not.
In their attempt to compel RAH to arbitrate under the Midwest/ALPA CBA, plaintiffs
rest on the Supreme Court’s holding in John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543
(1964). In John Wiley, the Court held that the “disappearance by merger of a corporate
employer which has entered into a collective bargaining agreement with a union does not
automatically terminate all rights of the employees covered by the agreement . . . in
appropriate circumstances, present here, the successor employer may be required to arbitrate
with the union under the agreement.” 376 U.S. at 548. The holding in Wiley is not as
expansive as the plaintiffs would suggest.

The vast majority of cases find that an

“unconsenting successor employer cannot be bound by the substantive terms of an existing
CBA.” AmeriSteel Corp. v. Int’l Bhd. of Teamsters, 267 F.3d 264, 275 (3d Cir. 2001)
(collecting cases); but see Local 348-S v. Meridian Mgmt. Corp., 583 F.3d 65, 68 (2d Cir.
2009) (successor must arbitrate under Wiley); also see, Successor Employer’s Obligations
Under a Preexisting Collective Bargaining Agreement: The Second Circuit Misinterprets
Supreme Court Decisions and Sets a Harmful Precedent, 76 J. Air L. & Com. 143 (Winter
2011) (criticizing Second Circuit’s ruling in Meridian).2

2
Neither party suggests that RAH is an “alter ego” of Midwest, or that RAH “voluntarily assumed the
obligations of its predecessor’s CBA.” Southward v. S. Cent. Ready Mix Supply Corp., 7 F.3d 487, 493 (6th Cir. 1993).

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Wiley, alongside NLRB v. Burns Int’l Servs., Inc., 406 U.S. 272 (1972) and Howard
Johnson Co. v. Hotel and Rest. Empl., 417 U.S. 249 (1974), is part of a “troubled trilogy” of
Supreme Court jurisprudence concerning the labor law successorship doctrine. AmeriSteel,
267 F.3d at 268. In Wiley, the predecessor employer merged with the successor and ceased
doing business as a separate entity. The holding of Wiley is “actually quite limited.”
AmeriSteel at 268. “We do not hold that in every case in which the ownership or corporate
structure of an enterprise is changed the duty to arbitrate survives.” Wiley at 551. Instead,
“there may be cases in which the lack of any substantial continuity of identity in the business
enterprise before and after a change would make a duty to arbitrate something imposed from
without, not reasonably to be found in the particular bargaining agreement and the acts of the
parties involved.” Id.
In Burns, the Court rejected a union’s unfair labor practice charge against a successor
to a security services contract who retained most of the employees that worked for the
predecessor. The Court observed that Wiley “suggests no open-ended obligation” that a
successor be “held bound by the contract executed” by the predecessor. 406 U.S. at 286.
Instead, Wiley’s “narrower holding dealt with a merger occurring against a background of
state law that embodied the general rule that in merger situations the surviving corporation
is liable for the obligations of the disappearing corporation.” Id. In Burns, there was “no
merger or sale of assets, and there were no dealings whatsoever” between the successor and
the predecessor. Id. The balance of power between employers and labor should be “set by

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economic power realities. Strife is bound to occur if the concessions that must be honored
do not correspond to the relative economic strength of the parties.” Id. at 288.
In Howard Johnson, the Court acknowledged the tension between its rulings in Wiley
and Burns. Instead of resolving this tension, the Court distinguished Wiley. “Wiley involved
a merger, as a result of which the initial employing entity completely disappeared. In
contrast, this case involves only a sale of some assets, and the initial employers remain in
existence as viable corporate entities.” 417 U.S. at 257. Thus, as noted by Burns, requiring
Wiley to arbitrate under its predecessor’s CBA “may have been fairly within the reasonable
expectations of the parties.” Id. Also, the disappearance of the original entity in Wiley meant
that the union was without a remedy, but in Howard Johnson, the predecessor still existed
as a viable entity. Id. at 257-58. Finally, in Wiley, all of the original employees were
absorbed by the successor, but in Howard Johnson, the successor hired only nine of 53
people employed by the predecessor. “Clearly, Burns establishes that Howard Johnson had
the right not to hire any of the former . . . employees, if it so desired.” Id. at 262.
Therefore, the issue the Court must decide is “which type of successor, Wiley, Burns,
or Howard Johnson, is [RAH] most like?” AmeriSteel at 286 (Becker, C.J., dissenting). The
Court finds that RAH is most similar to the successor in Howard Johnson. As in Howard
Johnson, Midwest did not completely disappear after it was acquired by RAH. Indeed,
Midwest is still a separate corporation, and of course the second aspect of this motion seeks
to compel Midwest to arbitrate under the Midwest/ALPA CBA. The “successorship”
provision contained therein demonstrates the existence of a remedy against Midwest for

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failing to expressly bind RAH to the CBA. “The availability of such contractual protections
strongly suggests that labor unions have the ability through bargaining to protect their
interests against changes in the employer.” Meridian, 583 F.3d at 85 (Livingston, J.,
dissenting). This distinction serves to highlight a basic point completely overlooked by the
plaintiffs: Wiley only applies upon the “disappearance by merger of a corporate employer.”
Wiley at 548 (emphasis added).
Additionally, just like the successor employer in Howard Johnson who hired only a
small number of its predecessor’s employees, RAH only hired a small number of Midwest
pilots, so there was no “substantial continuity of identity in the work force hired by [RAH]
with that of [Midwest].” Howard Johnson at 264. While the decision to furlough the
Midwest pilots did not happen immediately after RAH acquired Midwest, this is only
because Midwest continued to operate as a separate airline. After Midwest stopped flying,
it was up to RAH to decide which pilots (if any) it wanted to hire. The “primary purpose”
of the IBT in seeking arbitration is not to protect the rights of RAH’s employees, but rather
to protect the pilots who were not hired by RAH through its operating subsidiaries. This is
“completely at odds with the basic principles this Court elaborated in Burns. We found there
that nothing in the federal labor laws ‘requires that an employer . . . who purchases the assets
of a business be obligated to hire all of the employees of the predecessor . . .’” Howard
Johnson at 261 (quoting Burns at 280 n.5).
The Court acknowledges that the general policy of federal labor law favors the
arbitration of grievances. But whether RAH actually agreed to arbitrate in the first place is

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an issue for this Court to decide. United Steel Workers Int’l Union v. TriMas Corp., 531 F.3d
531, 535-36 (7th Cir. 2008). “While we must respect the vital role that arbitration plays in
settling labor disputes (and the correspondingly broad authority granted to arbitrators), we
think it goes without saying that courts should not compel parties to submit to arbitration
when there is nothing to arbitrate. . . . [S]uch an award would be illegitimate because it
would ‘simply reflect the arbitrator’s own notions of industrial justice’ and would not ‘draw
its essence from the contract’ itself.” AmeriSteel at 276-77 (quoting United Paperworkers
Int’l Union v. Misco, Inc., 484 U.S. 29, 38 (1987)). A party that is not bound by the
substantive terms of the CBA “cannot be compelled to submit to arbitration because no
arbitration award to the Union could receive judicial sanction.” Id. at 277.
B.

Motion to compel Midwest to arbitrate

Under the RLA, “minor disputes” are referred to an “appropriate adjustment board,”
established by the carrier and its employees, acting through their certified representatives.
45 U.S.C. § 184 (Section 204). Minor disputes are disputes “over the meaning of a collective
bargaining agreement governed by the [RLA].” Int’l Bhd. of Teamsters v. Frontier Airlines,
Inc., 628 F.3d 402, 404 (7th Cir. 2010). A minor dispute “contemplates the existence of a
collective agreement already concluded or, at any rate, a situation in which no effort is made
to bring about a formal change in terms or to create a new one. . . . [T]he claim is to rights
accrued, not merely to have new ones created for the future.” Consol. Rail Corp. (Conrail)
v. Railway Labor Exec. Ass’n, 491 U.S. 299, 303 (1989) (quoting Elgin , J. & E. Ry. Co. v.

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Burley, 325 U.S. 711, 723 (1945)).3 The duty to create adjustment boards for the resolution
of minor disputes is consonant with the RLA’s purpose to prevent “interruptions of service
on these vital organs of interstate commerce.” Int’l Bhd. of Teamsters v. Tex. Int’l Airlines,
Inc., 717 F.2d 157, 158 (5th Cir. 1983) (citing Burley, 325 U.S. at 726). This duty is “more
than a causal suggestion to the air industry.” Int’l Ass’n of Machinists v. Cent. Airlines, Inc.,
372 U.S. 682, 686 (1963).
Midwest argues that it should not be forced to submit to arbitration before the
adjustment board because the plaintiffs’ grievances were filed after Midwest ceased
operations as an air carrier. There is nothing in the RLA which requires that a grievance
must arise or be filed while the employer is actually operating as an air carrier for a grievance
to be arbitrable. The duty imposed by the RLA to establish a system board of adjustment is
“for the purpose of adjusting and deciding disputes arising under existing contracts.” Cent.
Airlines, 372 U.S. at 686 (emphasis added). Midwest’s duty to arbitrate did not disappear
when it ceased being an air carrier. The continuing obligation to arbitrate grievances finds
its source in the underlying CBA. That being said, for jurisdictional purposes, this matter
still arises under the Railway Labor Act. 28 U.S.C. § 1331; 28 U.S.C. § 1337(a) (“The
district courts shall have original jurisdiction of any civil action or proceeding arising under
any Act of Congress regulating commerce . . .”).

3

The duty to arbitrate before the

“Major disputes,” on the other hand, involve “the formation and amendment of the contract between the
employer and the labor union.” Ass’n of Flight Attendants, AFL-CIO v. USAIR, Inc., 960 F.2d 345, 348 (3d Cir. 1992); 45
U.S.C. §§ 156, 181. Major disputes are subject to the “purposely long and drawn out” resolution process under the RLA.
Ass’n of Flight Attendants, AFL-CIO v. USAir, Inc., 24 F.3d 1432, 1436 (D.C. Cir. 1994); 45 U.S.C. §§ 152, 155, 156.
The RLA also governs representation disputes, which are committed to the exclusive jurisdiction of the National
Mediation Board. 45 U.S.C. § 152, Ninth.

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Midwest/ALPA System Board of Adjustment was undeniably created when Midwest was
an air carrier subject to the RLA. A contract formed pursuant to the RLA “is a federal
contract and is therefore governed and enforceable by federal law, in the federal courts.”
Cent. Airlines at 692.
In its attempt to avoid arbitration, Midwest cites Indep. Union of Flight Attendants v.
Pan Am. World Airways, Inc., 923 F.2d 678 (9th Cir. 1991), opinion withdrawn by Indep.
Union of Flight Attendants v. Pan Am. World Airways, Inc., 966 F.2d 457 (9th Cir. 1992).
In Pan Am. World, the court denied a motion to compel arbitration over the use of flight
attendants on foreign flights. Since the RLA “does not apply to purely foreign flying, no
substantial question of federal law appears to be raised by an action to enforce an arbitration
agreement with respect to such flying.” 923 F.2d at 684. Pan Am. World is distinguishable
because the decision to deny access to foreign flights was never actually subject to the
requirements of the RLA. In other words, the RLA and its procedures were inapplicable ex
ante, whereas in the instant case, the RLA applied from the outset. If an air carrier could
avoid its Section 204 duties simply by grounding all of its planes, this would undermine the
“stated purposes” of the RLA, which are, among others: “‘To avoid any interruption to
commerce or to the operation of any carrier engaged therein’ and ‘to provide for the prompt
and orderly settlement of all disputes growing out of grievances or out of the interpretation
or application of agreements covering rates of pay, rules, or working conditions.’” Cent.
Airlines at 689 (quoting 45 U.S.C. § 151a). Therefore, the plaintiffs’ grievances do not
“extend beyond the scope” of the RLA’s “statutory mandate.” Pan Am. World at 683. The

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“substantial question arising under federal law” is whether “‘the contractual arrangements
made by the parties are sufficient to discharge the mandate of § 204 and are consistent with
the Act and its purposes.’” Id. (quoting Central Airlines at 691).
As a general rule, “grievances arising before expiration of a CBA survive and
continue to be governed by its terms.” Ass’n of Flight Attendants v. Delta Air Lines, Inc.,
879 F.2d 906, 910 (D.C. Cir. 1989) (citing Burley, supra, and Nolde Brothers, Inc. v. Local
No. 358, Bakery & Confectionary Workers Union, 430 U.S. 243 (1977)). Even if it could be
said that the CBA expired – Midwest provides no evidence that it did – a dispute is subject
to arbitration “even in the postcontract period” if it arises under the contract. Litton Fin.
Printing Div. v. NLRB, 501 U.S. 190, 205 (1991) (emphasis added). The plaintiffs’
grievances as they apply to Midwest all arise under the Midwest/ALPA CBA because they
seek to enforce the contractual rights contained therein. These grievances are minor disputes
that must be submitted to the Midwest-ALPA System Adjustment Board. Since RAH cannot
be bound by the arbitration proceedings, it appears that the plaintiffs would only be entitled
to an “award of damages for a past breach of contract,” not specific performance under the
scope and successorship clauses in the CBA. Delta Air Lines, 879 F.2d at 913.

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III.

CONCLUSION
Midwest can be compelled to arbitrate grievances under the Midwest/ALPA CBA, but

RAH cannot. Therefore, plaintiffs’ motion for summary judgment [D. 12] is GRANTEDIN-PART and DENIED-IN-PART, consistent with the foregoing opinion.
Dated at Milwaukee, Wisconsin, this 10th day of November, 2011.
BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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