United States Court of Appeals For the First Circuit

No. 20-1690

JON L. BRYAN,

Plaintiff, Appellant,

v.

AMERICAN AIRLINES, INC.; ALLIED PILOTS ASSOCIATION,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Lynch, Kayatta, and Barron, Circuit Judges.

Stephen Schultz, with whom Schultz Law LLP was on brief, for appellant. Mark W. Robertson, with whom Sloane Ackerman and O'Melveny & Myers LLP were on brief, for appellee American Airlines, Inc. James P. Clark, with whom Law Offices of James P. Clark, P.C. was on brief, for appellee Allied Pilots Association.

February 16, 2021 LYNCH, Circuit Judge. In December 2017, Jon L. Bryan,

a former pilot for US Airways who retired in January 1999, brought

suit against the Allied Pilots Association ("APA") and American

Airlines, Inc. ("American Airlines") under the Railway Labor Act

("RLA"),

et seq.

In 1999, at Bryan's request, his union at the time

submitted a grievance on his behalf against his then-employer US

Airways, which US Airways denied. That grievance alleged that US

Airways violated the terms of the applicable collective bargaining

agreement by cancelling Bryan's scheduled flight retraining which

allegedly led to his premature retirement. Bryan's suit alleges

that APA, the successor to the union which first submitted his

grievance, breached its statutory duty of fair representation by

withdrawing from pursuing his nearly nineteen-year-old grievance

to arbitration based on what he alleges was an inadequate

investigation into his grievance's merits. He also brings an

alleged "hybrid" suit against American Airlines, as the successor

to US Airways, for US Airways's alleged breach of the collective

bargaining agreement that purportedly led to his premature

retirement.

The district court dismissed the claim against American

Airlines and later granted APA's motion for summary judgment.

Concluding that APA did not breach its duty of fair representation,

we affirm.

- 2 - I.

A. Facts

We refer to the district court's motion to dismiss and

summary judgment opinions, which fully set forth the facts and

issues in this case. See generally Bryan v. Allied Pilots Ass'n,

No. 17-cv-12460-DJC,

(D. Mass. June 15, 2020);

Bryan v. Allied Pilots Ass'n, No. 17-cv-12460-DJC,

(D. Mass. Dec. 19, 2018). We summarize only those facts pertinent

to the duty of fair representation claim because we conclude that

that claim against APA fails, and Bryan's counsel conceded at oral

argument that if the claim against APA fails, then so does the

"hybrid" claim against American Airlines. See Miller v. U.S.

Postal Serv.,

(1st Cir. 1993) (describing a

"joint cause" of action against a union for breach of the duty of

fair representation and an employer for breach of contract as a

"hybrid" suit and explaining that the failure to prove either

"results in failure of the entire hybrid action"); Stanton v. Delta

Air Lines, Inc.,

(1st Cir. 1982) (explaining

that courts generally do not have jurisdiction over the merits of

any employment dispute under the RLA, except to determine whether

a union has breached its duty of fair representation).

In the summer of 1998, US Airways scheduled Bryan for

flight retraining but later cancelled his training date and did

not reschedule it. In January 1999, Bryan retired as a pilot from

- 3 - US Airways under the second phase of an Early Retirement Incentive

Program into which he had opted. The program allowed up to 325

pilots to retire no later than May 2000 with certain benefits. He

received all benefits called for under the program. In February

1999, Bryan filed a grievance with the Air Line Pilots Association

("ALPA"), the then-certified collective bargaining representative

for US Airways pilots, relating to the cancellation of his flight

retraining and its consequences.

ALPA initially pursued the grievance at his request. US

Airways denied Bryan's grievance in October 1999, and it affirmed

that denial in August 2000. On August 29, 2000, ALPA submitted

Bryan's dispute to the US Airways Pilots System Board of Adjustment

for arbitration pursuant to ALPA's standard practices.

Between August 2000 and September 2014, Bryan's

grievance was not scheduled for arbitration. There was a

considerable backlog of more than 400 grievances at US Airways

during that time, including grievances which were given priority

over Bryan's grievance. That backlog was exacerbated by

bankruptcies filed by US Airways in 2002 and 2004. During that

period, Bryan contacted union representatives several times

regarding his grievance.

In January 2004, Bryan sent a letter to the National

President of ALPA inquiring as to the status of his grievance and

requesting that it be scheduled for arbitration. There is no

- 4 - evidence that he received a response from the National President,

and his grievance was not scheduled for arbitration after that

inquiry. In June 2004, he emailed Captain Tracy Parrella, the

Grievance Committee chair for ALPA, requesting that she schedule

his grievance for arbitration because he believed the delay in

processing his grievance was excessive. In or around August 2004,

Parrella responded to Bryan and advised him that his "grandchildren

would be dead before the arbitration [of his grievance] was

scheduled," and Bryan interpreted this statement as hyperbole

referring to the union's lack of resources to process the backlog

of grievances. In December 2005, Bryan emailed Parrella with a

settlement proposal and threatened to initiate litigation if no

settlement was reached with US Airways regarding advancing his

grievance to arbitration. ALPA did not conduct settlement

negotiations with US Airways and Bryan did not initiate litigation.

In January 2006, Parrella notified Bryan that his grievance would

not be scheduled for arbitration in the "foreseeable future." In

October 2007, Bryan sent a letter to the National President of

ALPA stating that ALPA had failed to schedule his grievance for

arbitration, referencing a duty of fair representation on the part

of ALPA, and indicating that if no settlement could be reached

with US Airways, he would pursue legal action. ALPA did not

schedule Bryan's grievance for arbitration following that letter

nor did Bryan commence litigation against ALPA or US Airways.

- 5 - In or around May 2008, the US Airways Pilots Association

("USAPA") replaced ALPA as the certified collective bargaining

representative for US Airways pilots. Parrella remained the

Grievance Committee chair for USAPA from 2008 through 2012. At

some point during her tenure as Grievance Committee chair, Parrella

placed Bryan's grievance on a list of grievances that the union

would not pursue because the union had determined it had no merit.

In December 2011, Bryan contacted Parrella again to ask about the

status of his grievance and again threatened litigation for the

union's failure to take his grievance to arbitration. Following

this communication with Parrella, his grievance was still not

scheduled for arbitration and he did not pursue legal action.

Bryan had no further communication with USAPA regarding his

grievance between December 2011 and October 2014.

In or around 2013, Captain David Ciabattoni, who had

replaced Parrella as USAPA's Grievance Committee chair, reviewed

Bryan's grievance. He discussed that grievance with Captain Doug

Mowery, the former ALPA Grievance Committee chair at the time

Bryan's grievance was filed, who Ciabattoni considered a subject-

matter expert regarding that grievance. Based in part on that

discussion with Mowery, Ciabattoni concluded that Bryan's

grievance lacked merit and he placed Bryan's grievance on an

internal list of grievances that were candidates for withdrawal by

the union.

- 6 - In or around December 2013, US Airways completed a merger

into American Airlines. At the time of the merger, USAPA was still

the certified collective bargaining representative for the US

Airways pilots and APA was the representative for the American

Airlines pilots. In or around September 2014, APA became the

certified collective bargaining representative for the pilots of

the merged American Airlines. In October 2014, Ciabattoni notified

Bryan by email of this change in representation and the grievance

processing going forward.

In 2015, APA set up a process for reviewing the hundreds

of outstanding USAPA grievances by having former USAPA

representatives review grievance files and recommend which

grievances APA should pursue either through arbitration or

settlement. APA relied on the USAPA representatives as subject-

matter experts because they had more knowledge and information as

to the USAPA grievances. Tricia Kennedy, Esq., APA's Director of

Grievance and Dispute Resolution, asked Ciabattoni and several

other former USAPA representatives to travel to APA and review the

grievance files over several days. In November 2015, Ciabattoni

sent Kennedy an email containing a table titled "OLD USAPA

WITHDRAWN GRIEVANCES" which included Bryan's grievance. After

reviewing Bryan's grievance file for APA, Ciabattoni and other

former USAPA representatives agreed that Bryan's grievance lacked

merit and recommended to Kennedy that APA withdraw the grievance.

- 7 - Kennedy did not make any independent decisions as to which

grievances were withdrawn and only passed the recommendations on

to the APA President.

Bryan contacted APA for the first time regarding the

status of his grievance when he called Kennedy in February 2017.

Kennedy did not follow up on his inquiry and so he called her again

in April 2017. She again did not follow up with him and Bryan

contacted her again in May 2017, at which time she told him that

a meeting was scheduled with American Airlines to discuss the

grievances, including his. There is no evidence that Kennedy or

anyone else from APA told Bryan that his grievance had merit or

that APA would pursue his grievance through arbitration.

In August 2017, APA and American Airlines reached a

tentative settlement agreement in which American Airlines agreed

to pay a sum in settlement of those grievances that the USAPA

subject-matter experts had found to have merit, while APA agreed

to withdraw all the grievances that the USAPA subject-matter

experts had determined did not have merit. On October 5, 2017,

Kennedy notified Bryan of the tentative settlement agreement and

that his grievance had been withdrawn. Kennedy told him that he

could contact Paul DiOrio, the Chairman of the Philadelphia

domicile, if he had any questions about his grievance. Bryan never

contacted DiOrio or anyone else at APA to discuss his grievance or

to object to its withdrawal, though he did request his grievance

- 8 - file from Kennedy which was not provided to him until after he

filed this action. The Global Settlement Agreement, which included

the withdrawal of Bryan's grievance, was finalized and executed on

October 16, 2017.

B. Procedural History

On December 14, 2017, Bryan filed this action in the

district court, alleging a breach of APA's statutory duty of fair

representation and a breach of the collective bargaining agreement

which he asserted resulted in his allegedly premature retirement.

On March 27, 2018, APA and American Airlines each filed a motion

to dismiss for failure to state a claim. The court held a hearing

on those motions on June 26, 2018. On December 19, 2018, the

district court allowed American Airlines's motion to dismiss, but

denied APA's motion to dismiss. Bryan,

, at *8.

In dismissing the claim against American Airlines, the court held

that Bryan had failed to state a claim to relief because he failed

to allege any facts plausibly suggesting collusion between APA and

American Airlines in denying his rights under the RLA or the

collective bargaining agreement or bad faith on American

Airlines's part in entering the Global Settlement Agreement.

.

On January 31, 2020, APA filed a motion for summary

judgment. The district court held a hearing on the motion on April

2, 2020. On June 15, 2020, the court allowed APA's motion for

- 9 - summary judgment. Bryan,

, at *8. It first assumed

that APA owed a statutory duty of fair representation to Bryan

even though his grievance had been filed with ALPA.

.

It next held that the RLA's six-month statute of limitations barred

Bryan's claim against APA because he "knew or reasonably should

have known of the unions' alleged wrongdoing long before filing

suit."

. Finally, the court held that, even if his

claim against APA was not time-barred, the claim failed on the

merits because APA did not breach its duty of fair representation.

. The court concluded that APA instituted an adequate

review process in which it relied on the recommendations of former

USAPA representatives and that the review process was neither

arbitrary nor conducted in bad faith with respect to Bryan's

grievance.

Bryan timely appealed both district court decisions.

II.

Because we agree with the district court that the

evidence Bryan put forward on summary judgment does not permit a

finding of any breach of a duty of fair representation by APA, we

need not reach the statute of limitations issue. And because we

hold that Bryan's duty of fair representation claim against APA

lacks merit, we need not reach the claim against American Airlines

- 10 - which must also fail, as Bryan's counsel properly conceded.1 See

Miller,

; Stanton,

; see also Martin

v. Am. Airlines, Inc.,

(8th Cir. 2004) (holding

that, because the court concluded the union did not breach its

statutory duty of fair representation, the court lacked

jurisdiction over the minor dispute asserted against the employer

under the "hybrid" theory).

We review de novo a district court's decision to grant

a motion to dismiss for failure to state a claim. Harry v.

Countrywide Home Loans, Inc.,

(1st Cir. 2018). We

also review de novo a district court's grant of summary judgment.

Lawless v. Steward Health Care Sys., LLC,

(1st Cir.

2018). "Summary judgment is warranted if the record, construed in

the light most flattering to the nonmovant, 'presents no genuine

issue as to any material fact and reflects the movant's entitlement

to judgment as a matter of law.'"

at 20-21 (quoting McKenney

v. Mangino,

(1st Cir. 2017)); see also Fed. R.

Civ. P. 56(a).

1 Bryan and American Airlines also dispute whether case law regarding the Labor Management Relations Act ("LMRA"),

et seq., is applicable to claims brought under the RLA. Because we affirm the dismissal of the claim against American Airlines without reaching the merits, we need not resolve this dispute. This dispute over the LMRA case law does not relate to the rules set forth in Miller,

, a case which APA asserts applies in the RLA context and which Bryan does not contest applies here.

- 11 - Under the RLA, which governs labor relations in the

airline industry, see

, a certified union has a

statutory duty of fair representation that requires it "to serve

the interests of all members without hostility or discrimination

toward any, to exercise its discretion with complete good faith

and honesty, and to avoid arbitrary conduct." Air Line Pilots

Ass'n, Int'l v. O'Neill,

(1991) (quoting Vaca v.

Sipes,

(1967)); see also Emmanuel v. Int'l

Brotherhood of Teamsters, Loc. Union No. 25,

(1st Cir. 2005) ("A union breaches this duty by acting

discriminatorily, in bad faith, or arbitrarily toward a union

member.").2 "[A] union's actions are arbitrary only if, in light

of the factual and legal landscape at the time of the union's

actions, the union's behavior is so far outside a 'wide range of

reasonableness' as to be irrational." O'Neill,

(citation omitted) (quoting Ford Motor Co. v. Huffman,

(1953)); see also id. at 78; Miller,

. "[A]

union's mere negligence or erroneous judgment will not constitute

a breach of the duty of fair representation." Miller,

. "A union acts in bad faith when it acts with an improper

2 Bryan has waived any argument that there was "discrimination" against him by not arguing it in his initial brief, see Kelly v. Riverside Partners, LLC,

, 116 & n.13 (1st Cir. 2020), so we focus on the law about what constitutes arbitrariness and bad faith.

- 12 - intent, purpose, or motive, and [b]ad faith encompasses fraud,

dishonesty, and other intentionally misleading conduct." Good

Samaritan Med. Ctr. v. NLRB,

(1st Cir. 2017)

(alteration in original) (internal quotation marks omitted)

(quoting Spellacy v. Airline Pilots Ass'n-Int'l,

, 126

(2d Cir. 1998)).

"Any substantive examination of a union's

performance . . . must be highly deferential, recognizing the wide

latitude that negotiators need for the effective performance of

their bargaining responsibilities." O'Neill,

; see

also Emmanuel,

("[T]he reviewing court must accord

the union's conduct substantial deference[,] . . . [and t]his

standard of review recognizes that unions must have ample latitude

to perform their representative functions."); Miller,

("We also allow the union great latitude in determining the

merits of an employee's grievance and the level of effort it will

expend to pursue it.").

Bryan has not presented evidence of either arbitrariness

or bad faith, and the summary judgment record makes it quite clear

that he has not made out a case for breach of the duty of fair

representation.3 Bryan mischaracterizes clear law on what

3 At oral argument for this appeal, Bryan's counsel made clear that he is not bringing a duty of fair representation claim based on the various unions' failure to pursue Bryan's grievance to arbitration. Rather, the duty of fair representation claim is

- 13 - constitutes both arbitrariness and bad faith. "The duty of fair

representation mandates that a union conduct at least a 'minimal

investigation' into an employee's grievance," but "only an

'egregious disregard for union members' rights constitutes a

breach of the union's duty' to investigate." Emmanuel,

(first quoting Garcia v. Zenith Elecs. Corp.,

(7th Cir. 1995); and then quoting Castelli v. Douglas Aircraft

Co.,

(9th Cir. 1985)); see also Vaca,

("[W]e accept the proposition that a union may not

arbitrarily ignore a meritorious grievance or process it in

perfunctory fashion . . . .").

APA more than satisfied its duty to conduct at least a

"minimal investigation" into Bryan's grievance. It is undisputed

that APA brought in former USAPA representatives to review the

grievances APA had inherited from USAPA, and APA relied on these

former USAPA representatives to provide recommendations as to the

merits of those grievances. At least one of these former USAPA

representatives had previously reviewed Bryan's grievance and

determined that it lacked merit, including it on a table of old

USAPA grievances that had been designated as candidates for

withdrawal which was provided to APA. These representatives also

based only on APA's purportedly inadequate investigation as to the merits of Bryan's grievance and decision to withdraw the grievance without Bryan's participation. We analyze only that claim.

- 14 - unanimously recommended that Bryan's grievance be withdrawn by

APA. APA's reliance on the expertise of these former USAPA

representatives in choosing to withdraw Bryan's grievance did not

reflect an "egregious disregard" for Bryan's rights, Emmanuel,

(quoting Castelli,

), and Bryan cites

no controlling case law which suggests that APA's review process

here was not at least a minimally adequate investigation.

Bryan posits that the experts on which APA relied were

required by the duty of fair representation to truly be experts,

including being familiar with the particular collective bargaining

provision at issue in Bryan's grievance and understanding the

nature of the grievance. Without accepting this contention, even

so, mere negligence or erroneous judgment does not constitute a

breach of the duty of fair representation. Miller,

. The USAPA representatives were at least more familiar with

the former USAPA grievances and applicable collective bargaining

agreement than was APA. We must afford substantial deference to

the decision not to pursue the grievance further to arbitration.

See O'Neill,

; Emmanuel,

; Miller,

. Two bankruptcies, a change in unions, a 400-case

backlog, and the passage of almost two decades reasonably explain

why APA did not need to do more to investigate a claim that the

predecessor union had several times marked for dropping after the

airline had rejected it.

- 15 - In addition, Bryan presents no evidence that APA, or the

former USAPA representatives on which it relied, acted in bad faith

in reviewing Bryan's grievance or that APA acted in bad faith in

withdrawing it. Bryan has presented no evidence that anyone from

APA ever told him that his grievance had merit or that the union

would pursue it through arbitration. Bryan was told the name of

the APA agent to contact if he had any questions regarding the

withdrawal of his grievance. It was his choice not to contact

that agent.

Nor was APA under an obligation to give him even more

notice than he was given of its decision not to pursue his

grievance to arbitration. Bryan argues that he had a right to

pursue his grievance individually "at his own expense," and that

the failure of APA to notify him sooner deprived him of that

opportunity. Bryan has cited no controlling authority for the

proposition that an employee has an individual right under the RLA

to pursue a grievance against his employer where the employee's

certified representative has declined to pursue that grievance,

nor has he explained why such a right exists under the statute.

Cf. Vaca,

(holding that, under the LMRA, an

"individual employee has [no] absolute right to have his grievance

taken to arbitration regardless of the provisions of the applicable

collective bargaining agreement");

; Plumley v. S.

Container, Inc.,

(1st Cir. 2002) (applying

- 16 - LMRA); Miller,

(citing Vaca,

). To

the extent that such a right exists under the RLA, we reject that

it was violated on these facts because Bryan was notified of the

withdrawal of his grievance and given an opportunity to contact an

APA agent about his grievance more than a week before the Global

Settlement Agreement became final. That he chose not to contact

that agent about his grievance despite having more than a week to

do so defeats his claim that he was entitled to more notice.

III.

We hold that APA did not breach its duty of fair

representation under the RLA. Based on Bryan's concession at oral

argument, we also hold that Bryan cannot maintain a claim against

American Airlines. The judgment of the district court is affirmed.

- 17 -