Filed: Nov. 21, 2019
Latest Update: Mar. 03, 2020
Summary: 18-1086-cv Atlas Air, Inc. v. Int'l Bhd. of Teamsters UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2018 (Argued: May 3, 2019 Decided: November 21, 2019) Docket No. 18-1086 ATLAS AIR, INC., SOUTHERN AIR, INC., Plaintiffs-Appellees, - against - INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AIRLINE PROFESSIONALS ASSOCIATION OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL UNION NO. 1224, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AIRLINE DIVISION, Defendants-Appellants. ON APPEAL FR
Summary: 18-1086-cv Atlas Air, Inc. v. Int'l Bhd. of Teamsters UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2018 (Argued: May 3, 2019 Decided: November 21, 2019) Docket No. 18-1086 ATLAS AIR, INC., SOUTHERN AIR, INC., Plaintiffs-Appellees, - against - INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AIRLINE PROFESSIONALS ASSOCIATION OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL UNION NO. 1224, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AIRLINE DIVISION, Defendants-Appellants. ON APPEAL FRO..
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18‐1086‐cv
Atlas Air, Inc. v. Intʹl Bhd. of Teamsters
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2018
(Argued: May 3, 2019 Decided: November 21, 2019)
Docket No. 18‐1086
ATLAS AIR, INC., SOUTHERN AIR, INC.,
Plaintiffs‐Appellees,
‐ against ‐
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AIRLINE PROFESSIONALS
ASSOCIATION OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL UNION
NO. 1224, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AIRLINE DIVISION,
Defendants‐Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Before:
KEARSE, WESLEY, and CHIN, Circuit Judges.
Appeal from a judgment of the United States District Court for the
Southern District of New York (Forrest, J.) compelling arbitration of grievances
raised by plaintiffs‐appellees airlines in a dispute with the collective bargaining
representatives of their pilots. The district court granted the airlinesʹ motion for
summary judgment and to compel arbitration, holding that (1) the partiesʹ
disputes are subject to mandatory arbitration; (2) the airlinesʹ motion to compel
arbitration was timely; and (3) the disputed issues raised by the management
grievances are arbitrable.
AFFIRMED.
JUDGE KEARSE partially dissents in a separate opinion.
EDWARD GLEASON (Franklin K. Moss, on the brief), Law
Office of Edward Gleason PLLC, Washington,
DC, and Spivak Lipton LLP, New York, New
York, for Defendants‐Appellants.
ROBERT A. SIEGEL (Michael G. McGuinness and Sloane
Ackerman, on the brief), OʹMelveny & Myers LLP,
Los Angeles, California and New York, New
York, for Plaintiffs‐Appellees.
CHIN, Circuit Judge:
This labor relations case arises from the merger of two commercial
airlines, plaintiffs‐appellees Atlas Air, Inc. (ʺAtlasʺ) and Southern Air, Inc.
(ʺSouthernʺ) (together, the ʺEmployersʺ). The Atlas and Southern pilots are
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represented by defendants‐appellants International Brotherhood of Teamsters
(ʺIBTʺ), International Brotherhood of Teamsters Airline Division (ʺIBTADʺ), and
Airline Professionals Association of the International Brotherhood of Teamsters,
Local Union No. 1224 (ʺLocal 1224ʺ) (collectively, the ʺUnionʺ). Following the
announcement of the merger, disagreements arose as to the integration of the
respective employees and operations, whether the Union was required to
negotiate a new joint collective bargaining agreement (ʺJCBAʺ) to cover both sets
of pilots, and whether the disagreements were to be resolved in arbitration or
before the National Mediation Board (the ʺNMBʺ).
After the parties failed to resolve their controversies, the Employers
commenced this action below to compel arbitration of the management
grievances. The district court granted the Employersʹ motion for summary
judgment and to compel arbitration and denied the Unionʹs motion for summary
judgment. On appeal, we hold that the district court properly granted the
Employersʹ motion for summary judgment and to compel arbitration.
Accordingly, the judgment of the district court is affirmed.
-3-
BACKGROUND
I. The Facts
A. Labor Relations in the Airline Industry
The Railway Labor Act (the ʺRLAʺ), 45 U.S.C. § 151 et seq., regulates
labor relations in the airline industry. Hawaiian Airlines, Inc. v. Norris,
512 U.S.
246, 248 (1994) (citing 45 U.S.C. §§ 181‐188). The purpose of the RLA is to
prevent service interruptions in the transportation industries by encouraging
labor peace and avoiding strikes. See, e.g., CSX Transp., Inc. v. United Transp.
Union,
879 F.2d 990, 995 (2d Cir. 1989) (citing 45 U.S.C. § 151a and Detroit &
Toledo Shore Line R.R. v. UTU,
396 U.S. 142, 148 (1969)). The courtsʹ role in
ʺenforcing substantive obligations under the RLA is circumscribed by its unique
history and dispute‐resolution framework,ʺ and the statute sets forth ʺa unique
blend of moral and legal duties looking toward settlement through conciliation,
mediation, voluntary arbitration, presidential intervention, and, finally, in case of
ultimate failure of the statutory machinery, resort to traditional self‐help
measures.ʺ Air Line Pilots Assʹn, Intʹl v. Tex. Intʹl Airlines, Inc.,
656 F.2d 16, 19‐20
(2d Cir. 1981) (internal quotation marks omitted).
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The RLAʹs dispute resolution mechanisms include mediation before
the NMB and binding arbitration before ʺadjustment boards.ʺ CSX
Transp., 879
F.2d at 995‐97; accord W. Airlines, Inc. v. Intʹl Bhd. of Teamsters,
480 U.S. 1301, 1302
(1987). Adjustment boards are panels consisting of designated representatives of
the carrier and employees that resolve disputes arising under existing contracts
between labor groups and employers. See Intʹl Assʹn of Machinists v. Cent.
Airlines, Inc.,
372 U.S. 682, 686 (1963); Ollman v. Special Bd. of Adjustment No. 1063,
527 F.3d 239, 246 (2d Cir. 2008). As explained more fully below, the mechanism
that the parties must use to resolve a controversy depends on the type of dispute
between the parties, i.e., whether the dispute is a ʺmajor,ʺ ʺminor,ʺ or
ʺrepresentationʺ dispute. See CSX
Transp., 879 F.2d at 995‐98; Air Line Pilots
Assʹn, 656 F.2d at 20 n.6. Major and representation disputes fall within the
exclusive jurisdiction of the NMB, while minor disputes must be arbitrated
before an adjustment board. See CSX
Transp., 879 F.2d at 995‐98; Air Line Pilots
Assʹn, 656 F.2d at 20 n.6.
B. The Parties
Atlas is a commercial air carrier and wholly owned subsidiary of
Atlas Air Worldwide Holdings, Inc. (ʺAAWHʺ). Atlas is party to a collective
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bargaining agreement (the ʺAtlas CBAʺ) that governs the pay, rules, and working
conditions of the Atlas pilots. The Atlas CBA also covers another AAWH
subsidiary, Polar Air Cargo Worldwide, Inc. (ʺPolarʺ), which is not a party to this
action. The Atlas CBA became effective on September 8, 2011 and became
amendable ‐‐ or open for further negotiation ‐‐ on September 8, 2016.
In April 2016, AAWH acquired Southern Air Holdings, Inc., the
parent of Southern, making Southern a subsidiary of AAWH. Southern is party
to a collective bargaining agreement (the ʺSouthern CBAʺ) that governs the pay,
rules, and working conditions of the Southern pilots. The Southern CBA became
effective on November 6, 2012 and amendable on November 6, 2016.
IBT is the certified collective bargaining representative of the Atlas
and Southern pilots under the RLA. IBTAD is a party to both the Atlas CBA and
the Southern CBA. IBTAD, through IBT, has designated Local 1224 as the local
collective bargaining agent for the Atlas and Southern pilots.
C. The Collective Bargaining Agreements
1. Atlas
The Atlas CBA recognizes Atlas and Polar as ʺa single Air Carrier
collectively referred to as the ʹCompany.ʹʺ
Id. at 38. Pursuant to a 2011
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arbitration award, AAWH is not subject to the Atlas CBAʹs ʺscope provisions,ʺ
which relate to the scope of covered work, job security, and labor protections in
the event of certain corporate transactions. Under the Atlas CBA, the partiesʹ
obligation to ʺmerge the two pre‐integration collective bargaining agreements
into one agreement,ʺ
id. at 44‐45 (Section 1.F.b.iii), that is, to negotiate a JCBA, is
triggered by the following conditions:
(i) the Company acquires another air carrier and the
Company decides there will be a complete operational
merger between the Company and such other air carrier, or if
the Company notifies the Union of its intent to integrate the
Crewmember seniority lists of the respective carriers, or (ii)
in the event the Company decides there will be a complete
operational merger between the Company and an affiliated
air carrier, or if the Company notifies the Union of its intent
to integrate the Crewmember seniority lists of the Company
and an affiliated air carrier . . . [and] the crewmembers of the
acquired carrier are represented by the Union.
Id. at 43‐44 (Section 1.F.2).
The parties have nine months to execute a JCBA from the date the
Union presents the Company with a merged seniority list. If the parties are
unable to agree on the terms of a JCBA, the parties must submit the outstanding
issues to binding interest arbitration within thirty days of the conclusion of
negotiations contemplated by the Atlas CBA.
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Section 21 of the Atlas CBA provides that the System Board of
Adjustments (the ʺAtlas Boardʺ) ʺshall have jurisdiction over all disputes
between . . . the Company and the Union, growing out of the interpretation or
application of any of the termsʺ of the Atlas CBA.
Id. at 24. In addition, Section
1.H.1 of the Atlas CBA states that ʺ[a]ny grievance filed by the Company or
Union alleging a violation of Section 1 shall bypass the initial steps of the
grievance process and shall be submitted, heard, and resolved through binding
arbitration on an expedited basis directly before the [Atlas Board].ʺ
Id. at 46.
2. Southern
The Southern CBA provides that
[i]n the event of a merger between the Company and any
other company or business that employ crewmembers of
aircraft, there shall be an integration of the two crewmember
groups . . . . A ʺmergerʺ as used in this Section, shall refer to a
transaction in which the functional departments of the
Company (e.g., operations, marketing, finance, human
resources, etc.) are integrated with those of another
certificated air carrier employing crewmembers . . . .
In the event of a merger, this Agreement shall be merged with
the merging air carrierʹs crewmember collective bargaining
agreement, if any; if such merged agreement is not completed
within nine (9) months from the date an integrated
Master Seniority List is submitted to the surviving entity, the
parties shall submit all outstanding issues to binding interest
arbitration.
-8-
Id. at 54 (Sections 1.B.2‐3).
Section 19(D)(2) of the Southern CBA also establishes a System
Board of Adjustment (the ʺSouthern Boardʺ) and provides that the Southern
Board ʺshall have jurisdiction over disputes growing out of grievances or out of
the interpretation of application of any termsʺ of the agreement.
Id. at 34.
D. The Management Grievances
On January 19, 2016, AAWH announced its intent to merge the
operations of Atlas and Southern. Both Atlas and Southern took the view that
the parties were then required to negotiate a JCBA covering both companiesʹ
pilots in accord with Sections 1.F and 1.B of their respective collective bargaining
agreements. The Union disagreed, taking the position that Atlas and Southern
were required to engage in separate negotiations to amend each companyʹs
individual collective bargaining agreement.
1. Atlas
On April 13, 2016, the Union filed an application with the NMB
pursuant to Sections 5 and 6 of the RLA for mediation of the dispute. The NMB
acknowledged the Unionʹs application by letter dated April 19, 2016, advising
that the NMB would ʺinvestigate the complexity of issues associated with this
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application prior to beginning any mediation sessions,ʺ and that the application
had been docketed.
Id. at 208‐09.
The next day, April 14, 2016, Atlas filed a management grievance
(the ʺAtlas grievanceʺ) with the Atlas Board pursuant to Section 204 of the RLA
and Section 1.H of the Atlas CBA for expedited grievance arbitration. Atlas
requested that the Atlas Board decide whether the Union was ʺ[in] violati[on of]
Section 1.F.2.b.iii of the Atlas‐IBT CBA by refusing to engage in negotiations for a
[JCBA] pursuant to the terms and conditions set forth therein in light of the
announced operational merger of Atlas and Southern Air, Inc.?ʺ
Id. at 47. The
Union responded, by letter dated April 20, 2016, that stated:
the purported management grievance is intricately
related to, and indeed dependent upon, the resolution
of RLA statutory issues underlying our dispute,
including issues relating to the NMBʹs jurisdiction and
pending investigation, the Companyʹs obligations
under 45 U.5.C. § 152, First and 45 U.S.C. § 156, and its
obligations under 45 U.S.C. §§ 155 and 156. As you
know, the System Board lacks jurisdiction to address
matters arising outside the contract, including the
statutory issues involved in the purported management
grievance. It is inappropriate for the Company to
attempt to vest the System Board with jurisdiction that
it does not have. The purported grievance is, therefore,
invalid and not arbitrable.
- 10 -
Finally, we look forward to an amicable resolution of our
dispute through consensual negotiations, as provided for
under the RLA.
Id. at 135 (emphasis added).
Subsequently, the parties engaged in ongoing discussions
concerning a proposed JCBA that would cover the Atlas, Polar, and Southern
pilots. By example, the parties met on May 10, 2016 to discuss the dispute. At
the meeting, Atlas proposed that ʺit was willing to remove the scope clause,ʺ
Section 1.B of the Atlas CBA, ʺfrom the Section 1.F interest arbitration process,
and instead bargain for a mutually acceptable scope clause in advance of the
Section 1.F process.ʺ
Id. at 152. IBT indicated that it would consider Atlasʹs
compromise proposal, and ʺon that basis, the Company temporarily deferred
pursuing arbitration on the management grievance pending a response from the
IBT.ʺ
Id.
On July 14, 2016, IBT rejected Atlasʹs compromise proposal and sent
Atlas an email that provided ʺa discussion draft of [its] proposal on how to
proceed with negotiations.ʺ
Id. at 136; see
id. at 78. Attached to IBTʹs email was a
thirteen‐page draft of a proposed letter of agreement (ʺLOAʺ), detailing how the
parties might proceed to negotiate a JCBA. Significantly, the proposed letter
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agreement included the following language: ʺWhile this LOA remains in effect
. . . Parties agree to suspend/toll/defer their dispute relating to the management
grievance.ʺ
Id. at 139. In addition, the proposal included terms relating to
arbitration.
Atlas responded with a counter‐proposal on August 12, 2016, and
IBT responded by letter dated September 2, 2012. IBTʹs response stated the
following:
Despite our concerns relating to your failure to adhere to our
mutually agreed‐upon ground rules relating to our settlement
discussions and refusal of our previous settlement offers on a
path to an equitably negotiated CBA, we continue to believe
that it is in everyoneʹs best interest to find an amicable,
expeditious resolution of our dispute. It is for this reason that
we remain ready, willing and able to meet with you and your
colleagues in a further effort to resolve our dispute. Accordingly,
please advise us at your earliest convenience whether you and
your colleagues share our desire to meet again in an effort to
amicably resolve our dispute. If you do, please also provide us
with your available dates, times and locations so that we can
schedule a follow‐up meeting.
Id. at 156 (emphasis added). Following that exchange, the parties continued to
negotiate whether and on what terms they could negotiate a JCBA or amend the
Atlas CBA. Those discussions effectively ended in February 2017.
- 12 -
2. Southern
The Union filed an application for mediation with the NMB as to its
dispute with Southern on January 10, 2017, docketed the next day, to which
Southern objected in a January 24, 2017 letter to the NMB. On January 24, 2017,
Southern filed its own management grievance (the ʺSouthern grievanceʺ) with
the Southern Board against the Union asserting a violation of Section 1.B.3 of the
Southern CBA. By letter dated February 8, 2017, the Union responded that the
Southern grievance was ʺnonarbitrableʺ and that the Union ʺlook[ed] forward to
an amicable resolution of our dispute through consensual negotiations.ʺ
Id. at
197.
II. Proceedings Below
Atlas and Southern commenced this action on February 7, 2017. The
same day, they moved for summary judgment and to compel arbitration,
arguing that the disputes over the interpretation of the Atlas CBA and the
Southern CBA were minor disputes within the meaning of the RLA, and thus
subject to mandatory arbitration before the Atlas Board and Southern Board. On
July 20, 2017, the Union moved to dismiss the action. The district court
converted the Unionʹs motion to dismiss to a cross‐motion for summary
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judgment. On March 13, 2018, the district court issued an opinion granting
summary judgment in favor of the Employers, compelling arbitration, and
denying the Unionʹs cross‐motion for summary judgment.
Judgment was entered accordingly, and this appeal followed.
DISCUSSION
We review a district courtʹs grant of summary judgment de novo
ʺwhere . . . the parties filed cross‐motions for summary judgment and the district
court granted one motion[] but denied the other.ʺ BWP Media USA Inc. v.
Polyvore, Inc.,
922 F.3d 42, 47 (2d Cir. 2019) (per curiam); Morales v. Quintel
Entmʹt, Inc.,
249 F.3d 115, 121 (2d Cir. 2001). Summary judgment is proper if
ʺthere is no genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.ʺ Rubens v. Mason,
527 F.3d 252, 254 (2d
Cir. 2008) (quoting Fed. R. Civ. P. 56(c)). We similarly review the grant of a
motion to compel arbitration de novo. Katz v. Cellco Pʹship,
794 F.3d 341, 344 n.4
(2d Cir. 2015); Abram Landau Real Estate v. Bevona,
123 F.3d 69, 72 (2d Cir. 1997).
On appeal, the Union principally contends that (1) the district court
lacked subject matter jurisdiction over the action because the dispute was
docketed by the NMB and the issues raise a representation dispute within the
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exclusive jurisdiction of the NMB; (2) Atlasʹs motion to compel is untimely
because it was filed more than six months after the Unionʹs April 20, 2016 letter
stating that the Atlas grievance was not arbitrable; and (3) the issues raised in the
dispute are not arbitrable. We discuss each argument in turn.
I. Jurisdiction over the Dispute
The Union argues that the NMB has exclusive jurisdiction over the
dispute, and therefore the district court lacks subject matter jurisdiction over the
Employersʹ claim, because (1) the Union filed a mediation application that was
docketed by the NMB and (2) the claim is a representation dispute. We discuss
each issue in turn.
A. Applicable Law
As noted, whether the parties must mediate before the NMB or
submit their claims to binding arbitration depends on whether the dispute is a
major, minor, or representation dispute. See, e.g., CSX
Transp., 879 F.2d at 995‐98;
Air Line Pilots
Assʹn, 656 F.2d at 20 n.6.
Major disputes relate to disputes involving the ʺformation of
collective agreements or efforts to secure them.ʺ CSX
Transp., 879 F.2d at 995
(quoting Elgin, J. & E. Ry. v. Burley,
325 U.S. 711, 723 (1945)). These types of
- 15 -
disputes arise ʺwhere there is no such agreement or where it is sought to change
the terms of one, and therefore the issue is not whether an existing agreement
controls the controversy.ʺ
Id. (internal quotation marks omitted). Carriers or
unions may attempt to resolve a major dispute by providing thirty daysʹ written
notice ʺof an intended change in agreements affecting rates of pay, rules or
working conditionsʺ pursuant to Section 6 of the RLA.
Id. at 996 (quoting 45
U.S.C. § 156). If the parties fail to reach an agreement via mandatory
negotiations, either party may request mediation by the NMB.
Id. Where the
NMB ʺdetermines after mediation that the parties have reached an impasse, the
NMB must ʹendeavor . . . to induce the parties to submit their controversy to
[consensual] arbitration.ʹʺ
Id. (quoting 45 U.S.C. § 155). Absent voluntary
arbitration, the parties must maintain the status quo and ʺcool offʺ for thirty days
before resorting to economic self‐help such as a strike by the union or unilateral
changes to the terms and conditions of employment by the carrier.
Id.
Alternatively, the NMB may refer an unresolved major dispute of sufficient
importance to the President for further proceedings, during which time the
parties must maintain the status quo. See
id.
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Minor disputes refer to disputes involving existing collective
bargaining agreements where the parties challenge ʺeither . . . the meaning or
proper application of a particular provision with reference to a specific situation
or to an omitted case.ʺ
Id. at 995 (internal quotation marks omitted). ʺA dispute
will be considered minor . . . if the contract is reasonably susceptible to the
carrierʹs interpretation.ʺ
Id. at 997 (internal quotation marks omitted). The
carrierʹs burden is ʺrelatively lightʺ in this regard.
Id. at 999; accord Consol. Rail
Corp. v. Ry. Labor Execs.ʹ Assʹn,
491 U.S. 299, 307 (1989).
After initial attempts to negotiate the resolution of a minor dispute,
a party ʺmay submit the dispute for resolution through binding arbitration to the
National Railroad Adjustment Board (ʺNRABʺ) . . . or to other boards of
adjustment upon which the parties agree.ʺ CSX
Transp., 879 F.2d at 997 (citations
omitted). The resolution of minor disputes is within the exclusive jurisdiction of
the appropriate adjustment board, and courts cannot adjudicate the merits of the
dispute.
Id. at 1003; Bhd. of Locomotive Engʹrs Div. 269 v. Long Island R.R. Co.,
85
F.3d 35, 37 (2d Cir. 1996) (ʺIf a dispute is characterized as minor, a court cannot
assert jurisdiction over the action nor can the parties seek judicial remedies such
as an injunction.ʺ). Even though a district court is not authorized under the RLA
- 17 -
to resolve the merits of a minor dispute, including interpreting the terms of a
collective bargaining agreement, it may compel arbitration of a minor dispute.
W.
Airlines, 480 U.S. at 1302.
ʺʹRepresentationʹ disputes involve defining the bargaining unit and
determining the employee representative for collective bargaining.ʺ
Id. ʺWhere a
representation dispute appears on the face of the complaint, even in the absence
of a challenge by a competing union or an application to the NMB, the court is
bound to dismiss the action.ʺ Air Line Pilots
Assʹn, 656 F.2d at 24; accord W.
Airlines, 480 U.S. at 1302‐03. To resolve a representation dispute, ʺ[t]he NMB
must, upon the request of either party, investigate the representation dispute and
certify within 30 days the representative of the craft or class of employees in
question.ʺ Air Line Pilots
Assʹn, 656 F.2d at 20 n.6.
B. Application
1. Docketing of Application
The Union argues that the NMB has exclusive jurisdiction over the
partiesʹ dispute simply because it docketed the Unionʹs application for
mediation. As we have explained, however, the NMBʹs jurisdiction over labor
disputes turns on whether the partiesʹ disagreement is a major, minor, or
- 18 -
representation dispute within the meaning of the RLA. Docketing is merely an
administrative act, acknowledging the filing of a petition. See Atlas Air, Inc. v.
Intʹl Bhd. of Teamsters,
293 F. Supp. 3d 457, 468 n.14 (S.D.N.Y. 2018) (ʺCourts
routinely ʹdocketʹ cases as an administrative matter before determining whether
they have jurisdiction or not.ʺ). Moreover, the NMB did not address the merits
of the Unionʹs petition, nor did it determine whether the Union was raising a
major, minor, or representation dispute. Hence, the NMBʹs docketing of the
Unionʹs mediation application by itself does not deprive the district court of
subject matter jurisdiction. See Air Line Pilots
Assʹn, 656 F.2d at 24; In re Am. Train
Dispatchers Assʹn, 43 N.M.B. 71, 82 (Feb. 23, 2016) (dismissing action for lack of
jurisdiction after assigning docket number); In Re N.C. State Ports Auth. & N.C.
Ports Ry. Commʹn, 9 N.M.B. 398, 409‐10 (June 8, 1982) (same); cf. Makarova v.
United States,
201 F.3d 110, 113 (2d Cir. 2000) (ʺA case is properly dismissed for
lack of subject matter jurisdiction . . . when the district court lacks the statutory
or constitutional power to adjudicate it.ʺ).
- 19 -
2. Type of Dispute
The NMB has jurisdiction over a case if it concerns a major dispute
or a representation dispute. See W.
Airlines, 480 U.S. at 1302‐03; CSX
Transp., 879
F.2d at 996. The instant case does not.
As a preliminary matter, the management grievances do not involve
a major dispute. The parties are subject to existing, albeit amendable, collective
bargaining agreements that govern the pay, rules, and working conditions of the
Atlas and Southern pilots. The disputes here relate to whether the Union is in
violation of those collective bargaining agreements by refusing to negotiate a
JCBA. Bhd. of Maint. of Way Employes Div. v. Burlington N. Santa Fe Ry. Co.,
596
F.3d 1217, 1222‐23 (10th Cir. 2010) (ʺThe distinguishing feature of [a minor
dispute] is that the dispute may be conclusively resolved by interpreting the
existing agreementʺ and ʺ[t]he essence of the inquiry is whether the source of a
partyʹs asserted legal right is its collective bargaining agreement.ʺ (quoting
Consol. Rail
Corp., 491 U.S. at 305)).
On its face, the Atlas CBA is ʺreasonably susceptible to [Atlasʹs]
interpretationʺ that the announcement of an operational merger between Atlas
and Southern triggered Section 1.F. and Section 1.B of the collective bargaining
- 20 -
agreements. CSX
Transp., 879 F.2d at 997 (internal quotation marks omitted).
Both agreements contain language governing the negotiation of a JCBA
following certain conditions such as a decision to complete an operational
merger with an affiliated air carrier or notification of an intent to integrate
seniority lists. Both collective bargaining agreements then establish adjustment
boards with mandatory jurisdiction over all disputes concerning the
interpretation or application of any terms of those agreements. J. Appʹx at 24
(Section 21);
id. at 34 (Section 19(D)(2)). In turn, Atlas and Southernʹs
management grievances question whether the existing merger provisions of their
collective bargaining agreements have been triggered by the decision to join
Atlas and Southern, and whether the Union is in violation of the agreements.
In contrast, the Unionʹs refusal to arbitrate the Atlas grievance is
based on its view that ʺCompanyʺ in the Atlas CBA refers only to Atlas and
Polar, and that by virtue of a prior arbitratorʹs decision to exclude AAWH from
the scope provisions of the Atlas CBA, AAWH is not bound by the Atlas CBA.
As pleaded, the Employersʹ argument that the Union violated Section 1 of the
collective bargaining agreements and is subject to binding arbitration is
ʺplausibleʺ or at least ʺnot obviously insubstantial,ʺ and the district court was
- 21 -
under no obligation to ʺweigh[] and decide who has the better of the argument.ʺ
CSX
Transp., 879 F.2d at 999; see also Consol. Rail
Corp., 491 U.S. at 305 (ʺTo an
extent, then, the distinction between major and minor disputes is a matter of
pleadingʺ and ʺ[t]he party who initiates a dispute takes the first step toward
categorizing the dispute when it chooses whether to assert an existing
contractual right to take.ʺ). Such contract interpretation issues are the hallmark
of a minor dispute and thus subject to mandatory resolution by the appropriate
adjustment boards. See Air Line Pilots Assʹn, Intʹl v. Guilford Transp. Indus., Inc.,
399 F.3d 89, 99 (1st Cir. 2005) (ʺ[I]f a dispute involves two reasonable but
competing interpretations of the partiesʹ rights under a CBA, the dispute is not
major.ʺ). Accordingly, the management grievances involve a minor dispute, and
the district court did not err in exercising jurisdiction over the Employersʹ motion
to compel arbitration of the management grievances.
The Union also frames the dispute as a representation dispute
concerning whether Atlas and Polar or Atlas and Southern constitute a single
carrier for representation purposes. The Union, however, already represents
both Atlas and Southern pilots, and the collective bargaining agreements
between them contemplate the partiesʹ obligations when a merger occurs
- 22 -
between carriers represented by the same union. See Guilford Transp.
Indus., 399
F.3d at 105 n.11 (recognizing that union did not raise representation dispute
within exclusive jurisdiction of NMB because union had not asserted right to
represent employees not covered by collective bargaining agreement); Assʹn of
Flight Attendants v. United Airlines, Inc.,
71 F.3d 915, 919 (D.C. Cir. 1995) (holding
controversy did not concern a representation dispute in case where ʺboth groups
of employees are represented by the [union] so there is no question as to the
identity of the exclusive representativeʺ); CSX
Transp., 879 F.2d at 996 (ʺIt is a
minor dispute if there is a clearly governing provision in the present agreements,
although its precise requirements are ambiguousʺ (quoting Rutland Ry. Corp. v.
Bhd. of Locomotive Engʹrs,
307 F.2d 21, 33‐34 (2d Cir. 1962)). In these
circumstances, we reject the Unionʹs argument that the case raises issues of
representation that would fall within the exclusive jurisdiction of the NMB.
II. Statute of Limitations
The Union also argues that the Atlas grievance ‐‐ but not the
Southern one ‐‐ is barred because Atlasʹs February 7, 2017 motion to compel
arbitration was untimely. J. Appʹx at 134‐35. We disagree.
- 23 -
A. Applicable Law
The statute of limitations applicable to a motion to compel
arbitration under the RLA is an open question in this Circuit. The text of the
RLA does not prescribe a statute of limitations for such a motion. ʺWhen a
federal statute fails to specify a limitations period,ʺ we typically look to state law
for ʺthe most analogous periodʺ to apply. Robinson v. Pan Am. World Airways,
Inc.,
777 F.2d 84, 86 (2d Cir. 1985) (citing DelCostello v. Intʹl Bhd. of Teamsters,
462
U.S. 151, 158 (1983)). Where the statute concerns substantive matters of federal
labor law, however, we have held that the state limitations period may give way
to a limitations period borrowed from comparable federal statutes. Id.; Welyczko
v. U.S. Air, Inc.,
733 F.2d 239, 241 (2d Cir. 1984).
Courts have applied the six‐month limitations period for unfair
labor practice claims under Section 10(b) of the National Labor Relations Act (the
ʺNLRAʺ), 29 U.S.C. § 160(b), to other claims between unions and employers
governed by comparable labor law statutes. See, e.g.,
DelCostello, 462 U.S. at 168‐
72 (applying NLRAʹs six‐month limitations period to Labor Management
Relations Act (ʺLMRAʺ) claims). We have also looked to the NLRA to determine
the limitations period applicable to other labor law claims arising under the RLA.
- 24 -
See
Robinson, 777 F.2d at 88 (applying NLRAʹs six‐month limitations period to
claim for wrongful discharge under RLA). Moreover, we have held that ʺthe six‐
month statute of limitations under Section 10(b) of the [NLRA] applies to actions
to compel a labor arbitrationʺ under the LMRA. Associated Brick Mason
Contractors of Greater N.Y., Inc. v. Harrington,
820 F.2d 31, 37 (2d Cir. 1987).
In Harrington, we determined that the six‐month limitations period
should be applied to motions to compel arbitration of disputes under the LMRA
because of the need for: (1) ʺprompt resolution of grievances;ʺ (2) ʺʹproper
balance between the national interests in stable bargaining relationships and
finality of private settlements,ʹ . . . and a partyʹs interest in invoking the arbitral
process under the collective bargaining system;ʺ and (3) uniformity of statutes of
limitations for grievances involving conduct that may also constitute an unfair
labor practice under the NLRA.
Id. at 37 (internal citation omitted). These same
considerations apply to the transportation industries and therefore to motions to
compel arbitration under the RLA. Accordingly, as the parties agree, we now
hold that motions to compel arbitration of disputes governed by the RLA are
subject to a six‐month statute of limitations.
- 25 -
The next question is when a cause of action to compel arbitration
accrues. As we have recognized, ʺit is well established that a cause of action to
compel arbitration accrues when a party unequivocally refuses a demand to
arbitrate.ʺ
Id. at 38; accord Schweizer Aircraft Corp. v. Local 1752, Intʹl Union, United
Auto., Aerospace & Agr. Implement Workers of Am.,
29 F.3d 83, 87 (2d Cir. 1994).
Equivocality turns on the factual circumstances in each case. Diamond D Const.
Corp. v. Intʹl Union of Operating Engʹrs, Local Unions No. 17, 17A, 17B, 17C & 17R,
15 F. Supp. 2d 274, 289 (W.D.N.Y. 1998) (ʺ[T]he particular circumstances of each
case control the ʹunequivocal refusalʹ inquiry.ʺ).
At minimum, a flat refusal to arbitrate without further inquiry or
discussion of the dispute is sufficiently unequivocal. See
Schweizer, 29 F.3d at 87.
In Schweizer, we considered the unionʹs counterclaim, filed one month after
employerʹs petition to stay the arbitration, to be timely because it was the
employerʹs ʺonly unequivocal refusal to arbitrate.ʺ
Id. Importantly, there was no
mention of any attempt to resolve the underlying dispute from the time of the
unionʹs demand for arbitration, made February 2, 1993, to the date that the
employer filed the petition to stay arbitration, February 19, 1993.
Id. at 84‐87.
Similarly, in Communications Workers of America v. Western Electric Company, there
- 26 -
was no discussion of intervening activity amongst the parties that followed the
employerʹs ʺimmediate, blunt, and to the pointʺ replies that it considered its
dispute with the union ʺnon‐arbitrable.ʺ
860 F.2d 1137, 1145 (1st Cir. 1988)
(hereinafter ʺCWAʺ). Accordingly, the First Circuit concluded in that case that
the statement was an unequivocal refusal to arbitrate that commenced the statute
of limitations.
Id.
By contrast, non‐responses or equivocal statements do not cause the
statute of limitations to run. See I.B.E.W. Sys. Council U‐7 v. N.Y. State Elec. & Gas
Corp.,
180 F.3d 368, 370 (2d Cir. 1999) (per curiam) (holding that there was no
unequivocal refusal to arbitrate where party ʺsimply announced the status of the
arbitration proceeding,ʺ and nothing indicated that it would refuse to arbitrate if
asked); Local Joint Exec. Bd. of Las Vegas, Bartenders Union Local 165, Culinary
Workersʹ Local Union No. 226 v. Exber, Inc.,
994 F.2d 674, 676 (9th Cir. 1993)
(holding that constructive notice of refusal to arbitrate was insufficient, and
ʺ[b]ecause the Union never received from the employer an unequivocal, express
refusal of its demand to arbitrate, the statute of limitations never commenced
runningʺ); Aluminum Brick & Glass Workers Intʹl Union v. AAA Plumbing Pottery
Corp.,
991 F.2d 1545, 1548 (11th Cir. 1993) (holding that the motion to compel
- 27 -
arbitration was timely because the employerʹs statements that ʺIʹm sure you will
agree that the matter is closedʺ and ʺI . . . would be interested to see what the
Unionʹs position isʺ were equivocal).
In certain cases, whether a party has made an unequivocal refusal to
arbitrate has not been clear; and at least one court has questioned whether mere
formalities, such as a petition to stay arbitration, or an initial refusal to arbitrate
absent ʺ[u]nambiguous conductʺ to the same effect, ʺrise to the level of an
unequivocal refusalʺ to arbitrate.
Diamond, 15 F. Supp. 2d at 289. The district
courts in our circuit have not resolved this question uniformly. Compare
id.
(ʺ[T]his court believes that the unequivocal refusal standard does not turn on
whether the party resisting arbitration has filed a petition to stay arbitration or
has uttered the magic words ʹwe refuse to arbitrate this dispute.ʹʺ), with Raymond
v. Mid‐Bronx Haulage Corp., No. 15‐cv‐5803,
2017 WL 9882601, at *3 (S.D.N.Y. June
10, 2017) (ʺTo the contrary, courts require ʹclearʹ and ʹexpressʹ conduct, such as a
motion to stay arbitration procedures or an explicit objection to arbitration
proceedings, before finding an unequivocal refusal to arbitrate.ʺ), and Hotel
Greystone Corp. v. N.Y Hotel & Motel Trades Council,
902 F. Supp. 482, 485
(S.D.N.Y. 1995) (holding motion to stay arbitration, and not earlier letter
- 28 -
objecting to arbitratorʹs reconsideration of the award, was unequivocal refusal to
arbitrate because hotel continued to contest jurisdiction and merits and
participated in hearing before arbitrator).
When a partyʹs refusal to arbitrate does not fall neatly into the
equivocal or unequivocal classifications, some courts have resolved the inquiry
by evaluating the partiesʹ conduct following the refusing partyʹs initial
communication. See Teamsters Local Union No. 783 v. Anheuser‐Busch, Inc.,
626
F.3d 256, 259‐60 (6th Cir. 2010); Intʹl Union v. Cummins, Inc.,
434 F.3d 478, 485 (6th
Cir. 2006); Fedʹn of Westinghouse Indep. Salaried Unions v. Westinghouse Elec. Corp.,
736 F.2d 896, 898‐99 (3d Cir. 1984). We agree that in some circumstances a partyʹs
initial refusal to arbitrate can be rendered equivocal by the partiesʹ subsequent
statements and actions.
For example, in Westinghouse, the Third Circuit remanded the case
for the district court to resolve whether a companyʹs earlier statement that ʺ[t]his
dispute is not subject to demand arbitration and the Company is unwilling to
process the grievance into arbitration by special agreementʺ was rendered
equivocal by its subsequent statement that, ʺ[w]hile [it] continue[d] to believe
that the dispute [was] not arbitrable . . . , it would be willing to proceed to
- 29 -
arbitration by mutual agreement in this particular case, providing there is
agreement as to the matter to be decided by an
arbitrator.ʺ 736 F.2d at 898‐99
(first alteration in original). In some circumstances, then, a party resisting
arbitration does not meet the standard of unequivocal refusal where an initial,
express refusal is followed by statements expressing some willingness to
arbitrate.
Likewise, the Sixth Circuit concluded that an employer had not
unequivocally refused to arbitrate where it stated that it was ʺʹsurprisedʹ that the
Union was still pursuing the grievance because [it] assumed that the Union had
dropped the matter,ʺ the grievance was ʺnot arbitrable,ʺ and the union should
provide legal authority for its position.
Cummins, 434 F.3d at 483. The court
reasoned that while the employer initially stated that the grievance was not
arbitrable, ʺits subsequent conduct . . . suggested that it was still open to
negotiatingʺ and the letter ʺstat[ing] the grievance was not arbitrable without
requesting further information from the Union . . . [wa]s the date when [the
employerʹs] refusal to arbitrate became unequivocal.ʺ
Id. at 485; see also Teamsters
Local Union No.
783, 626 F.3d at 259‐60 (holding that ʺ[a] statement that a
grievance is not arbitrable, which simultaneously requests additional
- 30 -
information, does not amount to an unequivocal position that the employer will
not arbitrate,ʺ and unionʹs claim was not time‐barred where employerʹs
communications sought additional information but lacked indication that
ʺnegotiation or settlement was not feasibleʺ). We agree that notwithstanding an
initial refusal to arbitrate, a partyʹs refusal to arbitrate can be rendered equivocal
by conduct showing that it is willing to negotiate the merits or arbitrability of the
underlying dispute.
B. Application
The Employersʹ February 2017 motion to compel arbitration is
timely because the Unionʹs initial refusal to arbitrate was rendered equivocal by
its subsequent participation in negotiations with Atlas to create a JCBA or to
arbitrate the dispute.
To begin with, the parties contest whether the Unionʹs April 20, 2016
letter, which claimed that the management grievance was ʺfacially invalidʺ and
ʺnot arbitrable,ʺ J. Appʹx at 134‐35, constituted an unequivocal refusal to
arbitrate. There is some ambiguity, as the Union stated that the Employersʹ
grievances were invalid and not arbitrable at the same time it noted that it was
ʺlook[ing] forward to an amicable resolution of [the] dispute through consensual
- 31 -
negotiations.ʺ
Id. at 135. The Unionʹs indication that it was open to consensual
negotiations arguably softened its position that the Atlas grievance was not
arbitrable. As in Teamsters Local Union No. 783, there was no clear signal that
ʺnegotiation or settlementʺ of the issue in dispute ʺwas not
feasible.ʺ 626 F.3d at
260. A statement of the Unionʹs view on arbitrability followed by an invitation to
negotiate the merits of the dispute could reasonably be construed as a statement
of its initial position rather than an unequivocal refusal to arbitrate. See
Aluminum
Brick, 991 F.2d at 1548.
We need not decide, however, the close question of whether the
April 20 letter constituted an unequivocal refusal to arbitrate. Assuming,
without deciding, that it did, the Unionʹs participation in ensuing efforts to
resolve the dispute rendered its initial refusal equivocal. For example, on May
20, 2016, the parties met to discuss, inter alia, interest arbitration. The Union
indicated that it would consider Atlasʹs proposal to narrow the scope of
arbitration, and in exchange, ʺ[Atlas] temporarily deferred pursuing arbitration
on the management grievance pending a response from the IBT.ʺ J. Appʹx at 78.
Thus, as in Westinghouse, Atlasʹs restraint in pursuing its management grievance
was predicated on the Unionʹs willingness to arbitrate at least some issues,
- 32 -
including displacing the scope clause and negotiating a JCBA ‐‐ the very issues
that Atlas sought to resolve by way of its management grievance.
Later, in the LOA proposed on July 14, 2016, IBT suggested a
suspension, tolling, or deferral of the dispute relating to the Atlas grievance.
Until the breakdown in negotiations, the parties continued to indicate a
willingness to resolve the dispute by coming to terms on a JCBA while the Atlas
grievance remained pending. Both the Union and Atlas thus recognized that
negotiating a JCBA would moot the issues that formed the basis of the Atlas
grievance.
IBT engaged in negotiations and discussions that, if successful,
would have obviated the need for arbitration. Indeed, these discussions
included the possibility of arbitration in the event the negotiations and
discussions were not successful. Moreover, throughout the discussions, Atlas
consistently reserved all rights (as did IBT). As the Third Circuit held in
Cummins, we agree that ʺthe employer must essentially determine that
negotiation or persuasion is not feasible before the statute of limitations will
begin to
run.ʺ 434 F.3d at 484. Atlas did not make that determination until
negotiations stalled in February 2017, and then it promptly filed this action.
- 33 -
Finally, we note that one of the principal purposes of the RLA is ʺto
encourage use of the nonjudicial processes of negotiation, mediation and
arbitration for the adjustment of labor disputes.ʺ Aircraft Serv. Intʹl, Inc. v. Intʹl
Bhd. of Teamsters,
779 F.3d 1069, 1079 (9th Cir. 2015) (quoting Bhd. of R.R.
Trainmen, Enter. Lodge, No. 27 v. Toledo, P. & W. R. R.,
321 U.S. 50, 58 (1944)). By
filing its motion to compel only after it became clear that the Unionʹs refusal to
arbitrate was unequivocal, Atlas acted in accordance with the spirit of the RLA.
Accordingly, we agree with the district court that Atlasʹs motion to compel
arbitration of its management grievance was timely.
III. Arbitrability of the Employersʹ Grievances
Finally, the Union raises three arguments with respect to the
arbitrability of the Employersʹ management grievances: (1) the Southern CBA
does not permit the employer to file a grievance that could be the basis of
arbitration; (2) the Atlas grievance is not arbitrable because AAWH, and not the
Company, initiated the merger so that the obligation to negotiate a JCBA has not
been triggered; and (3) the adjustment board of one air carrier cannot exercise
authority over the pilots of the other.
- 34 -
A. Applicable Law
Arbitrability concerns ʺwhether a particular dispute is to be
arbitrated under the terms of the contract.ʺ Metro. Life Ins. Co. v. Bucsek,
919 F.3d
184, 190 (2d Cir. 2019). Courts must decide whether a collective bargaining
agreement requires the parties to arbitrate a grievance unless the agreement
provides otherwise. AT & T Techs., Inc. v. Commcʹns. Workers of Am.,
475 U.S. 643,
649 (1986) (ʺUnder our decisions, whether or not the company was bound to
arbitrate, as well as what issues it must arbitrate, is a matter to be determined by
the Court on the basis of the contract entered into by the parties.ʺ (internal
quotation marks omitted)); Collins & Aikman Prods. Co. v. Bldg. Sys., Inc.,
58 F.3d
16, 19 (2d Cir. 1995) (ʺ[F]ederal law does not require parties to arbitrate when
they have not agreed to do so.ʺ (internal quotation marks omitted)). Determining
arbitrability, however, does not permit courts to address the merits of the
underlying claims. AT &
T, 475 U.S. at 650.
B. Application
The Unionʹs three arguments as to the arbitrability of the Employersʹ
management grievances fail.
- 35 -
First, Southern is permitted to unilaterally file a grievance with the
Southern Board. While the Union argues that the Southern CBA only provides
for grievances filed by the Union, that authorization is permissive in that the
ʺUnion may fileʺ a grievance, J. Appʹx at 32, 34; the agreement does not expressly
prohibit Southern from filing grievances, cf. Bhd. of
Maint., 596 F.3d at 1224
(ʺContractual silence can be construed as a reservation to the employer of the
right to act unilaterally.ʺ (internal quotation marks omitted)). In any event, the
Southern CBA gives the Southern Board mandatory authority ʺover disputes
growing out of grievances or out of the interpretation of application of any of the
termsʺ of the agreement. J. Appʹx at 34. That provision governs subject matter,
not parties. Moreover, the language of the Southern CBA echoes that of Section
204 of the RLA, which provides:
[D]isputes between an employee or group of employees
and a carrier or carriers by air growing out of
grievances, or out of the interpretation or application of
agreements concerning rates of pay, rules, or working
conditions . . . may be referred by petition of the parties
or by either party to an appropriate adjustment board.
45 U.S.C. § 184 (emphasis added). Therefore, under the Southern CBA and the
RLA, Southern was entitled to file a management grievance with the Southern
- 36 -
Board regarding the interpretation of Section 1.B.3 of the collective bargaining
agreement.
Second, the district court correctly determined that it lacked
authority to decide whether the merger provisions of the Atlas CBA were
prompted by the announced operational merger of Atlas and Southern. Unlike
cases in which the district court must determine whether a party agreed to be
bound by a collective bargaining agreement, here, the parties have removed that
issue from the district courtʹs consideration and placed it squarely before the
Atlas Board ‐‐ the parties agreed that disputes over the interpretation or
application of the collective bargaining agreements are to be decided by the
boards of adjustment. See
Buscek, 919 F.3d at 189‐91. And whether Section 1.F of
the Atlas CBA encompasses AAWH as a parent company, as the Employers
argue, or only applies to the ʺCompanyʺ in reference to Atlas and Polar as a
single air carrier, as the Union argues, is a question of contract interpretation that
is at the heart of the Atlas grievance. Thus, the district court is not permitted to
address the merits of the underlying claim. AT &
T, 475 U.S. at 650.
Third, the Union contends that the partiesʹ dispute is not arbitrable
on the ground that it would require one employerʹs adjustment board to exercise
- 37 -
jurisdiction over the employees of the other employer. This argument is
unpersuasive. Atlas and Southern each submitted a management grievance to
their respective board of adjustments. Accordingly, the Atlas Board and the
Southern Board must make two independent determinations as to whether the
Union must negotiate a JCBA under Section 1.F of the Atlas CBA and Section 1.B
of the Southern CBA. The Atlas Board will only decide whether the Atlas CBA
requires Atlas pilots to negotiate a JCBA , and the Southern Board will only
decide whether the Southern CBA requires Southern pilots to do so.1 Nothing in
the process of interpreting the provisions of the two collective bargaining
agreements purports to bind Atlas or Southern pilots to the terms of another
existing collective bargaining agreement. Therefore, the Unionʹs third argument
fails, and the dispute is arbitrable.
1 We acknowledge that this framework could produce the strange result that one
adjustment board finds that the relevant CBA requires negotiation of a JCBA, but the
other finds the opposite. In that case, one group of pilots would be required to
negotiate a JCBA with a non‐existent counterparty. At this time, we need not decide the
proper course of action should this outcome obtain, as it is not currently before this
Court. We note, however, that the parties, both sophisticated and counseled, appear to
have bargained for this possibility by including JCBA provisions in their original CBAs.
- 38 -
CONCLUSION
For the reasons set forth above, we AFFIRM the judgment of the
district court.
- 39 -
18-1086
Atlas Air, Inc. v. Int'l Bhd. of Teamsters
1 KEARSE, Circuit Judge, dissenting in part:
2 I respectfully dissent from so much of the majority's decision as rules that
3 plaintiffs' motion to compel arbitration, under the collective bargaining agreement
4 between defendants (collectively the "Union") and plaintiff Atlas Air, Inc. ("Atlas"),
5 of the April 2016 management grievance filed by Atlas was timely. I agree with the
6 majority that an action to compel arbitration of a dispute governed by the Railway
7 Labor Act ("RLA") is subject to a statute of limitations of six months, and that that
8 limitations period begins when the party sought to be compelled has unequivocally
9 refused a demand to arbitrate, see, e.g., Associated Brick Mason Contractors of Greater
10 New York, Inc. v. Harrington,
820 F.2d 31, 37-38 (2d Cir. 1987); that a party's apparently
11 unequivocal refusal can properly be viewed as not unequivocal in light of its
12 subsequent conduct or statements, see, e.g., Federation of Westinghouse Independent
13 Salaried Unions v. Westinghouse Electric Corp.,
736 F.2d 896, 902 (3d Cir. 1984)
14 ("Westinghouse"); and that determination of the date on which a party has
15 communicated such a refusal unequivocally depends on the particular circumstances
16 of the case, see, e.g., I.B.E.W. System Council U-7 v. New York State Electric & Gas Corp.,
17
180 F.3d 368, 370 (2d Cir. 1999). I disagree with the majority's view that the Union's
1 April 20, 2016 refusal to accede to Atlas's arbitration demand was not unequivocal--or
2 that it became equivocal.
3 On or about April 14, 2016, Atlas sent the Union its management
4 grievance (the "Atlas Grievance"), complaining that, by refusing to engage in
5 bargaining with respect to the integration
6 of staff and operations following the merger of Atlas and Southern Air, Inc.
7 ("Southern"), the Union had "violat[ed] Section 1.F.2.b.iii of the" collective bargaining
8 agreement between Atlas and the Union. The Atlas Grievance demanded arbitration
9 pursuant to the Atlas-Union collective bargaining agreement.
10 The Union responded to the Atlas Grievance in a two-page letter dated
11 April 20, 2016 ("Union's April 20 Letter" or "Letter") by stating that as the rights of
12 Southern employees were "inextricably related to the allegations relating to the Atlas
13 Air, Inc. collective bargaining agreement"--to which the Southern employees were not
14 party--"the entire purported management grievance . . . is not arbitrable." (Union April 20
15 Letter at 1 (emphases added).) After describing "another reason" that "[t]he
16 purported grievance is invalid" (id. at 1-2), the Union Letter reiterated that "[t]he
17 purported grievance is . . . invalid and not arbitrable" (id. at 2 (emphases added)). I view
18 this as an arbitration refusal that was unequivocal.
2
1 In that Letter, the Union concluded by stating "we look forward to an
2 amicable resolution of our dispute through consensual negotiations, as provided for
3 under the RLA" (id. (emphasis added)). The majority--while declining to decide
4 whether the Union's "April 20 letter constituted an unequivocal refusal to arbitrate,"
5 Majority Opinion ante at 32--says that the Union's concluding statement "arguably
6 softened" the Union's "position that the Atlas grievance was not arbitrable" (id.
7 (emphasis added)). I see no such softening. Unlike the Westinghouse case, relied on
8 by the majority, in which that company, after originally refusing arbitration, stated
9 that it, conditionally, "would be willing to proceed to arbitration by mutual agreement in
10 this particular
case," 736 F.2d at 899 (emphasis added), here the Union's stated
11 willingness to resolve the dispute simply through "consensual negotiations" does not
12 at all suggest a willingness to submit the dispute to a third entity for adjudication by
13 that entity.
14 The majority concludes that "the Union's participation in ensuing efforts
15 to resolve the dispute rendered its initial refusal equivocal," Majority Opinion ante at
16 32. Again I disagree. The efforts referred to by the majority are principally that "on
17 May 20, 2016, the parties met to discuss, inter alia, interest arbitration" (id. (emphasis
18 added)), and that in July 2016 the parties had a proposed letter of agreement that the
3
1 majority says "suggested a suspension, tolling, or deferral of the dispute relating to
2 the Atlas grievance,"
id. at 33. I see nothing here to indicate that the Union had
3 retreated from its stance that the Atlas Grievance was not arbitrable. First of all,
4 "[i]nterest arbitration" involves referring a dispute to an arbitration
5 panel in order for it to establish the terms and conditions of a
6 future collective bargaining agreement. It differs from the more
7 typical grievance arbitration, which involves interpreting an existing
8 employment contract to determine whether its conditions have been
9 breached.
10 Mulvaney Mechanical, Inc. v. Sheet Metal Workers International Ass'n,
288 F.3d 491, 494
11 (2d Cir. 2002) (emphases added), vacated on other grounds,
538 U.S. 918 (2003). The
12 parties did indeed proceed to discuss interest arbitration, because they sought to
13 enter into a future contract--one that would, unlike any existing agreement, cover the
14 crew members of both Atlas (along with its affiliate "Polar") and Southern.
15 Further, the July 2016 "Proposed Letter of Agreement" ("LOA") to which
16 the majority refers--and which was headed "DRAFT FOR DISCUSSION"--stated that
17 "[t]he purpose of this LOA is to establish a process to negotiate a joint collective
18 bargaining agreement ('JCBA') covering the Atlas, Polar and Southern Crewmembers"
19 (emphases added). Atlas itself, in an August 12, 2016 letter to the Union, noted that
20 both sides proposed to "require interest arbitration" "only . . . if the parties cannot
21 reach agreement on the terms of a JCBA."
4
1 While the majority views this as the Union "engag[ing] in negotiations
2 and discussions that, if successful, would have obviated the need for arbitration,"
3 Majority Opinion ante at 33, the issue as to whether a refusal to arbitrate was
4 unequivocal is not whether the dispute could be resolved without arbitration. The
5 reference to a "need" for arbitration seems to presume arbitration's availability--which
6 the Union had steadfastly denied--and such a presumption of availability ignores the
7 fundamental principle that the source of any obligation to arbitrate is a contract
8 between the parties:
9 [A]rbitration is a matter of contract and a party cannot be required
10 to submit to arbitration any dispute which he has not agreed so to
11 submit.
12 United Steelworkers v. Warrior & Gulf Navigation Co.,
363 U.S. 574, 582 (1960). The
13 parties plainly were free to negotiate a new agreement that would include a
14 requirement for arbitration of a grievance such as that asserted in Atlas's April 14
15 demand. But I cannot infer that a party's evincing willingness to negotiate for
16 inclusion of an arbitration requirement in a new agreement amounts to a deviation
17 from its prior insistence that there was no relevant authorization for arbitration in the
18 existing agreement.
5
1 In sum, in my view the Union's April 20, 2016 Letter rejected Atlas's
2 request for arbitration unequivocally, stating that the Atlas management grievance
3 was "not arbitrable." The Union's statement that it was willing to resolve the Atlas
4 dispute "through consensual negotiations" did not suggest a willingness to have the
5 dispute adjudicated by an arbitrator. And the Union's participation in negotiations
6 toward providing for arbitration in a new contract did not imply any alteration of its
7 April 20, 2016 position that the Atlas Grievance was not arbitrable under the existing
8 contract. I thus would conclude that the present action filed in February 2017, more
9 than six months later, is untimely.
6