IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 between PHI, Incorporated (“PHI”) on the one hand and

certain individual pilot employees (“Individual Pilots”), Office & Professional

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.”

United States Court of Appeals

Fifth Circuit

F I L E D

September 12, 2011

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 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 and its Local 108 are

labor organizations who are certified as the bargaining representatives for PHI’s

pilots. After expiration of the then-existing collective bargaining agreement

(“CBA”), the parties’ negotiations over a new CBA broke 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), the parties were released

to “self-help” on August 28, 2006. The Unions engaged in a strike commencing

on September 20, 2006, and 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 the 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 of counsel 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

the Unions. Trans World Airlines v. IFFA, 489 U.S. 426, 442 (1989). We also

agree that this conduct did not strike such a blow, so we affirm the district

court’s disposition of this matter for substantially the same reasons expressed

in that court’s order. Because of this ruling, we do not reach the question of

whether 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. Wage Claims. The Unions also contend that certain improper

deductions were taken from “last” paychecks mailed by PHI to certain pilots and

2

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appeal the district court’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 resolution 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 the district court’s

dismissal of its injunctive claims. PHI challenges the district court’s holding

that PHI’s silence in the face of the National Mediation Board’s offer of

arbitration constituted a rejection that bars PHI’s claims for injunctive or

equitable relief. We need not decide the correctness of this ruling 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 long to seek injunctive relief

and that the declaratory relief it seeks would not resolve any live controversy. 

Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992) (“We can, of course,

affirm the district court’s judgment on any grounds supported by the record.”). 

AFFIRMED. 

Because of our disposition of these claims, we do not reach PHI’s cross-appeal

1

regarding penalty wages under Louisiana Revised Statute Section 23.532.

3

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