From Judge Cindrich Memorandum:
Since the beginning of the parties’ collective bargaining relationship in 1949, US Air has never subcontracted this type of heavy maintenance work on any aircraft equipment in its fleet. Indeed, in collective bargaining negotiations between the IAM and US Air in 1999, US Air recognized that it did not have the right to subcontract airframe heavy maintenance work.
During those negotiations, US Air sought to obtain that subcontracting right from the IAM by proposing that it be allowed to contract out heavy maintenance work, like the SCheck, on its Boeing aircraft then in need of such service. The IAM rejected that proposal.
In the Spring of 2003, US Air indicated to the IAM that it was considering whether to subcontract the S-Checks on its Airbus fleet. The IAM responded to US Air on August 4, 2003, indicating that any attempt to subcontract such work would be
a violation of the CBA and constitute a “major dispute†under the RLA. US Air responded in turn on August 8, 2003 indicating that the dispute was a “minor dispute†under the RLA because the disagreement involved a dispute over the
interpretation of Article 2 (Scope Clause) of the CBA and therefore required the issue to be arbitrated in accordance with the RLA. US Air did not offer any interpretation of Article 2, however, and further indicated that it had not decided how the upcoming S-Checks would be handled. The IAM subsequently refused to submit the dispute to arbitration. On October 6, 2003, US Air advised the IAM that it was contracting out the first ten Airbus aircraft S-Checks to Singapore Technologies Mobile Aerospace Engineering in Mobile, Alabama. US Air also stated that certain IAM-represented employees would be sent to Alabama to train the
subcontractor’s employees in US Air’s practices and procedures for performing heavy maintenance work on the Airbus, including gaining familiarity with the Airbus maintenance manual and related FAA guidelines. Two additional IAM-represented employees would be sent to Alabama to perform quality assurance work in connection with the subcontracting. The IAM responded by filing the instant complaint seeking a temporary, preliminary and permanent injunction directing US Air to cease and desist the subcontracting of airframe heavy maintenance work on the Airbus fleet and all other heavy maintenance work
covered by the CBA.
We reach that conclusion with some confidence based on the following, undisputed facts:
(1) the longstanding and uninterrupted practice and custom that heavy maintenance types of work such as an S-Check has always been performed by IAM-represented employees;
(2) the fact that such work has always been considered within the exclusive province of those employees under the CBA as evidenced by the aforementioned history of the parties’ actions under the CBA; and
(3) the fact that US Air recognized through bargaining conduct as late as 1999 that it had no right to subcontract such work, even though section (G) had been part of the CBA for many years. Indeed, there can be no argument that heavy maintenance work like the S-Check has been customarily contracted out to vendors because there are no facts to support such an argument.
US Air’s parsing out of this last sentence of section (G) for the proposition that it is to be read as a stand-alone provision which allows the company to contract out any work where there is a dispute as to whether there are adequate facilities or tools to perform such work is not arguably justified. Indeed, US Air could unilaterally void the entire CBA based on such interpretation simply by not providing IAM represented employees with adequate facilities or tools to
perform their work.4 Thus, US Air has not met its burden, as light as that burden is, of establishing a minor dispute. US Air’s attempts to contract out S-Checks on its Airbus fleet is not arguably justified by the CBA, particularly not by US Air’s out of context reliance on the last sentence of section (G) of the Second Clarification which claim we find to be obviously insubstantial. Under the guise of a claimed dispute about the meaning of language in the CBA, US Air is attempting to remake or amend the most elemental and consequential provisions of the CBA.
From the appellate court Judge Smith:
SMITH, Circuit Judge, Dissenting:
This case turns on whether the dispute between US Airways, Inc. (“US Airways†or “the Companyâ€) and the International Association of Machinists and Aerospace Workers (the “IAMâ€) is characterized as “major†or “minor†for purposes of the Railway Labor Act, 45 U.S.C. §§ 151 et seq. (“RLAâ€). The majority holds that it is a minor one “because both parties have asserted rights existing under the [collective
bargaining agreement], the dispute turns on the proper interpretation or
application of the CBA, and US Airways’ argument is neither frivolous nor obviously insubstantial.†Supra at 13. I agree with the majority that the
parties’ dispute is resolved by application of the CBA and the interpretation of its
terms. Where I part company with my colleagues is in their conclusion that US
Airways’ position is not frivolous. I agree, instead, with the District Court that, “nder the guise of a claimed dispute about meaning of language in the CBA, [US Airways] is attempting to remake or amend the most elemental and consequential provisions of the CBA.†Because I believe that US Airways has not presented a construction of the contract that even arguably supports its position, I respectfully dissent. A genuine dispute over the “‘meaning or proper application of a
particular provision’†in the parties’ collective bargaining agreement is “minor,†and subject to the exclusive jurisdiction of the System Board of Adjustment.
