### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-31040

P H I, INCORPORATED, Plaintiff - Appellee-Cross-Appellant

v. OFFICE & PROFESSIONAL EMPLOYEES INTERNATIONAL UNION; LOCAL 108, OFFICE & PROFESSIONAL EMPLOYEES INTERNATIONAL UNION; CYNTHIA ABER; HOWARD A. ALBECKER; THOMAS R. ANDARY; ET AL, Defendants - Appellants - Cross - Appellees

Appeals from the United States District Court for the Western District of Louisiana Dist. Ct. No. 6:06-cv-01469

Before SMITH, BENAVIDES, and HAYNES, Circuit Judges. PER CURIAM: * A labor dispute bet w e en PHI, Incorporated (“PHI”) on the one hand and certain individual pilot employees (“Individual Pilots”), Offic e & P rofessional Employees International Union (“OPEIU”), and Local 108, Office & Professional Employees International Union (“Local”) (all collectively called the “Unions”) on the other hand spawned two appeals. The case giving rise to this appeal came to be known as the “Bargaining Suit.” U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Sep tem ber 1 2, 2 011 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-31040 Document: 00511599921 Page: 1 Date Filed: 09/12/2011No. 10-31040

The facts are well-known to the parties, so we recite them only briefly here. PHI is a “carrier” under 45 U.S.C. § 181. OPEIU a nd its Local 108 are labor organizations who are certified as the bargaining representatives for PHI’s pilots. After expiration of the th e n - e xisting collective bargaining agreement (“CBA”), the parties’ negotiations over a new CBA b r o k e down. Following the Unions’ rejection of arbitration as offered by the National Mediation Board (and PHI’s silence in response to the offer of arbitration), th e parties were released to “self-help” on August 28, 2006. The Unions engaged in a strike commencing

on September 20, 2006, a n d ending on November 10, 2006. The district court wrote several very careful and thorough memorandum opinions over the two

cases (which were ultimately consolidated for trial before th e court’s ruling on dispositive motions obviated the need for a trial). Having considered the district court’s reasoning, the parties’ briefing, and the arguments o f c o unsel at oral argument, we turn to the issues in this appeal. 1. Implementing Better Terms. The Unions contend that PHI violated the Railway Labor Act (“RLA”) by making unilateral changes during self-help (but before the strike) to improve pilot pay and making those changes retroactive (by

a short time) to a period before self-help. We agree with the district court that such conduct by PHI was permissible unless it struck a “fundamental blow” to th e U n i ons. Trans World Airlines v. IFFA , 489 U.S. 426, 442 (1989). We also agree that this conduct did not strike s u c h a b l o w , so we affirm the district court’s disposition o f this matter for substantially the same reasons expressed in that court’s order. Because of this ruling, we do no t r e a c h th e question of whe th e r the pre-self-help rejection of arbitration would bar the Unions from seeking injunctive or other equitable relief for the alleged bad faith bargaining by PHI. 2. W a ge Cla i m s . Th e U n i o n s a l s o c o n t e n d that certa i n i m p r o p e r deductions were taken from “last” paychecks mailed by PHI to certain pilots and

2 Case: 10-31040 Document: 00511599921 Page: 2 Date Filed: 09/12/2011No. 10-31040

appeal the distri c t c o u rt’s dismissal of their claims under Louisiana Revised Statute Section 23:631 providing a remedy for failure to pay final wages owed. We agree with the district court that these claims are pre-empted because they require resort to the CBA for r e s o lution and therefore do not reach whether Section 23.631 offers relief to a pilot who is not discharged and does not resign. 1

3. PHI’s Cross-Appeal. PHI also cross-appeals th e district court’s dismissa l o f i t s injunctive claims. PHI challenges the district court’s holding that PHI’s silence in the face of the National Mediati o n Board’s offer of arbitration constituted a rejection that bars PHI’s claims for i njunctive or equitable relief. We need not decide the correctness of this rulin g because we agree with the Unions that PHI did not challenge the alternative bases for the district court’s ruling, including that PHI waited too lo ng to seek injunctive relief and that the declaratory relief it seeks would no t r esolve any live controversy. Sojourner T v. Edwards , 974 F.2d 27, 30 (5th C i r . 1 9 9 2) (“We can, of course, affirm the district court’s judgment on any grounds supported by the record.”). AFFIRMED.

Becaus e of our dis pos i t i o n of thes e clai ms , we do not reac h PHI’ s cro ss -ap pea l 1 regar ding pena lty wa ges unde r Louis iana Revis ed Sta tut e S ect ion 23.5 32. 3 Case: 10-31040 Document: 00511599921 Page: 3 Date Filed: 09/12/2011