How does USAPA's benefit by getting the Declaratory Relief action dismissed or stalled? The mediator will certainly be impressed if USAPA were somehow to get this dismissed. She would ask why you want my help when you dismiss a company lawsuit that could have cleared the way for your internal union dispute that is currently an unripe DFR action.
I seriously doubt that Silver will dismiss a Declaratory Relief action by the company under this factual scenario. Remember, in any Motion to Dismiss all inferences of fact are, by law, decided in favor of the plaintiff and/or cross claimant.
I seriously doubt that Silver will retain jurisdiction when Wake already dismissed the compnay FOR LACK OF SUBJECT MATTER JURISDICTION.
Jurisdiction does not depend on any statement or interpretation of facts. Here is what judge Wake said in his order in Dkt.#84 20, Nov. 2008.
B. Subject Matter Jurisdiction: Claims Against US Airways (Counts One and Two)
Of course, no relief can be granted by this court in the absence of subject matter jurisdiction. Defendants argue that jurisdiction is lacking because the Plaintiff West Pilots failed to exhaust their administrative remedies. The Railway Labor Act provides that disputes between employees and their employers concerning the interpretation of labor agreements may be referred by petition of either party to the Board of Adjustment. 45 U.S.C. § 184 (airline industry); 45 U.S.C. § 153 First (i) (railroad counterpart). Both of the claims against the airline arise under the operative terms of the Transition Agreement: the first alleges a violation of its substantive terms, and the second alleges a violation of the obligation imposed by that agreement to exert every reasonable effort in negotiations. These disputes are deemed “minor” in the Railway Labor Act parlance because they involve the “interpretation or application of collective bargaining agreements.” Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO v. Aloha Airlines, Inc., 776 F.2d 812, 815 (9th Cir. 1985). In minor disputes, the Board of Adjustment provides the exclusive remedy. Consol. Rail Corp. v. Ry. Labor Execs. Ass’n, 491 U.S. 299, 310 (1989). However, where a union acts “in concert” with the carrier–employer, setting up “schemes and contrivances” to stymie aggrieved employees, no administrative remedy need be pursued. Glover v. St. Louis-S.F. Ry. Co., 393 U.S. 324, 331 (1969); Croston v. Burlington N. R.R., 999 F.2d 381, 387 (9th Cir. 1993).
Rather, “[j]oinder of the employer is permissible” in the court proceedings against the union. Raus v. Bhd. Ry. Carmen of the U.S. and Can., 663 F.2d 791, 797-98 (8th Cir. 1981).
The Plaintiff West Pilots have neither alleged nor presented any specific facts suggesting collusion. “[A]ccusations of ‘bad faith’ do not excuse an attempt to use the grievance–arbitration machinery.” Bailey v. Bicknell Minerals, Inc, 819 F.2d 690, 693 (7th Cir. 1987); see also Anderson v. Babbitt, 230 F.3d 1158, 1164 (9th Cir. 2000) (requiring objective evidence to substantiate allegations of administrative bias). While no exhaustion is required where the plaintiff makes specific allegations that the employer colluded in the union’s breach of the duty to represent fairly, the conclusory allegations in this case are insufficient to establish collusion. Crusos v. United Transp. Union, Local 1201, 786 F.2d 970, 973 (9th Cir. 1986); Masy v. N.J. Transit Rail Operations, Inc., 790 F.2d 322, 327 (3d Cir. 1986). The Plaintiff West Pilots point to no specific instance where US Airways acted in concert with USAPA to thwart operational integration. There is no indication that US Airways intends to stall negotiations in order to avoid implementing the Nicolau Award.
Before dismissal of the airline is ordered, however, it must be considered whether Fed. R. Civ. P. 19 requires the employer to be joined as a party because its presence may be necessary for complete relief in the claim against the union. As the Third Circuit has noted, “the presence of the employer should not be a means of circumventing the [Board of Adjustment’s] exclusive jurisdiction over minor contractual disputes.” Masy, 790 F.2d at 327. Nor is it “appropriate to join an employer to a breach of duty of fair representation claim so that binding arbitration or some similar remedy may be ordered” because the Plaintiff West Pilots have not sought an order compelling their union to arbitrate. Id. Because no facts have been alleged or shown connecting union malfeasance with the company’s actions, no remedy lies against the company in this court, and complete relief may be granted against USAPA in its absence. See Czosek v. O’Mara, 397 U.S. 25, 28-29 (1970) (holding that a union may be held independently liable for damages that flowed from its own conduct). US Airways need not remain a party and will be dismissed.5
IT IS FURTHER ORDERED that Defendant US Airways’ Motion to Dismiss for lack of jurisdiction (docs. # 30) is granted.
Prior to this ruling USAPA offered the System Board of Adjustment to the plaintiffs without any Union involvement. That means the plaintiffs would have been able to go to the Arbitrator alone without any USAPA interference to state their claims. The declined to pursue this avenue.
Judge Silver will dismiss because subject matter jurisdiction is not dependent on any outside facts. The plaintifffs were offered relief via the system board and they didn't take it. Judge Wake stated the issue was subject to the purvue of the system board. He reaffirmed it in Docket # 666 on October 18, 2010
Dismissing US Airways for lack of jurisdiction, which has collateral benefits for USAPA.
If one Federal judge has dismissed based on subject matter jurisdiction anonther is not likely to take the case. This is a stalling and delay tactic
by management and they are setting the statge for DFRII by claiming exhaustion of legal remedies.
