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
- 2 -

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"), 45 U.S.C. §§ 151 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.
- 3 -

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, 2020 WL 3182881 (D. Mass. June 15, 2020);

Bryan v. Allied Pilots Ass'n, No. 17-cv-12460-DJC, 2018 WL 6697681 

(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., 985 F.2d 9, 10-11 (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., 669 F.2d 833, 836 (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 
- 4 -

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 
- 5 -

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.
- 6 -

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 subjectmatter 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.
- 7 -

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 subjectmatter 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.
- 8 -

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 
- 9 -

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, 2018 WL 6697681, 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. Id.

at *6-8.

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 
- 10 -

summary judgment. Bryan, 2020 WL 3182881, 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. Id. at *4-5. 

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." Id. at *5-6. 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. 

Id. at *7. 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. Id.

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
- 11 -

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

Miller, 985 F.2d at 11; Stanton, 669 F.2d at 836; see also Martin

v. Am. Airlines, Inc., 390 F.3d 601, 608 (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., 902 F.3d 16, 18 (1st Cir. 2018). We 

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

Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9, 21 (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.'" Id. at 20-21 (quoting McKenney

v. Mangino, 873 F.3d 75, 80 (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"), 29 

U.S.C. §§ 141 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, 985 F.2d at 10-12, a case which APA 

asserts applies in the RLA context and which Bryan does not contest

applies here.
- 12 -

Under the RLA, which governs labor relations in the 

airline industry, see 45 U.S.C. § 181, 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, 499 U.S. 65, 76 (1991) (quoting Vaca v. 

Sipes, 386 U.S. 171, 177 (1967)); see also Emmanuel v. Int'l 

Brotherhood of Teamsters, Loc. Union No. 25, 426 F.3d 416, 420 

(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, 499 U.S. at 67 

(citation omitted) (quoting Ford Motor Co. v. Huffman, 345 U.S. 

330, 338 (1953)); see also id. at 78; Miller, 985 F.2d at 12. "[A]

union's mere negligence or erroneous judgment will not constitute 

a breach of the duty of fair representation." Miller, 985 F.2d at 

12. "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, 964 F.3d 107, 116 & 

n.13 (1st Cir. 2020), so we focus on the law about what constitutes 

arbitrariness and bad faith.
- 13 -

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

dishonesty, and other intentionally misleading conduct." Good 

Samaritan Med. Ctr. v. NLRB, 858 F.3d 617, 630 (1st Cir. 2017) 

(alteration in original) (internal quotation marks omitted)

(quoting Spellacy v. Airline Pilots Ass'n-Int'l, 156 F.3d 120, 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, 499 U.S. at 78; see 

also Emmanuel, 426 F.3d at 420 ("[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, 985 F.2d at 

12 ("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 
- 14 -

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, 426 F.3d

at 420 (first quoting Garcia v. Zenith Elecs. Corp., 58 F.3d 1171, 

1176 (7th Cir. 1995); and then quoting Castelli v. Douglas Aircraft 

Co., 752 F.2d 1480, 1483 (9th Cir. 1985)); see also Vaca, 386 U.S. 

at 191 ("[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.
- 15 -

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, 426 

F.3d at 420 (quoting Castelli, 752 F.2d at 1483), 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, 985 F.2d at 

12. 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, 499 U.S. at 78; Emmanuel, 426 F.3d at 420; Miller, 

985 F.2d at 12. 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.
- 16 -

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, 386 U.S. at 191 (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"); id. at 194-95; Plumley v. S. 

Container, Inc., 303 F.3d 364, 374-75 (1st Cir. 2002) (applying 
- 17 -

LMRA); Miller, 985 F.2d at 12 (citing Vaca, 386 U.S. at 191). 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.