UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GARY PETERSON, et al., Plaintiffs,

v. TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO,

Defendant. Case No. 1:13-cv-00170 (CRC)

MEMORANDUM OPINION This putative class act ion is the latest skirmish in a long-running dispute among

mechanics at American Airlines over which union should represent them. Following American’s bankruptcy in November 2011, its mechanics narrowly ratified a collective bargaining agreement between the airline and the Transportation Wo rkers Union (“TWU”). A group of American mechanics who would prefer to be represen ted by another union—the American Mechanics Fraternal Association (“AMFA”)—ha s filed suit over the process that led to the ratification of that agreement. They contend that in negotiatin g the agreement with the airline, TWU leadership favored mechanics who work at American’s prin cipal maintenance base in Tulsa, Oklahoma at the expense of Plaintiffs and others who work el sewhere. This preferen tial treatment, they allege, breached the union’s duty of fair repres entation and violated th eir voting rights under the Labor-Management Reporting and Disclosure Act. Plaintiffs do not seek monetary damages or th e invalidation of the co llective bargaining agreement. They request instead a declarator y judgment and permanent injunction requiring the TWU to refrain from the alleged unfair practices in future contract negotiations. Because2 Plaintiffs have not identified any impending inju ry that could be preven ted by the relief they seek, the Court concludes that they lack standing to bring this suit. For similar reasons, the Court also concludes the suit is unripe. The Court therefore will grant the TWU’s motion to dismiss the complaint for lack of subject matter jurisdiction.

I. Background Plaintiffs and their proposed class members ar e part of a “craft or class” of mechanics and related employees at American Airlines. 1 They and workers in six other employee classifications are represented by the TWU. Second Amended Complaint ¶ 18 (“SAC”). Roughly half of the mechanics and related empl oyees perform heavy ma intenance and overhaul aircraft at American’s primary maintenance base in Tulsa, Oklahoma. SAC ¶ 24. The others

work at other maintenance bases in Fort Worth or Dallas, Texas, or perfor m lighter “line” service at airports served by American th roughout the country. SAC ¶¶ 22–23. Soon after filing for bankruptcy protection in November 2011, American took steps to reject its collective bargaining agreement (“CBA ”) with the TWU and re negotiate a modified agreement. American’s first “last best offer” during the negotiations proposed to eliminate almost 4,000 line and maintenance base jobs. SAC ¶ 57. This offer failed a ratification vote. SAC ¶ 58. After further negotiatio ns, American’s second “last be st offer” proposed to save 1,439 jobs at the Tulsa maintenance base from the 2,358 that would have been eliminated under the prior offer. SAC ¶ 60. Non-Tulsa maintena nce base workers and line mechanics, however, saw their job losses increase slight ly from the first to the second offer. SAC ¶ 62. Largely on the support of employees at th e Tulsa maintenance base, a CBA reflecting American’s second offer was ratified by the narrowest of margins: 50.25% to 49.75%. SAC ¶ 78. The CBA went

1 A “craft or class” under the Railway Labor Act, 45 U.S.C. § 151 et seq., which governs American’s relationship with its mechanics, is similar to a bargaini ng unit under the National Labor Relations Act, 29 U. S.C. § 141 et seq.3 into effect in the fall of 2012 following bankrupt cy court approval. SAC ¶ 80. The agreement runs through September 2018 and will not be su bject to renegotiation until September 2016.

Def.’s Mot. Dismiss Ex 12. The CBA negotiations described above followe d a history of sparring between the TWU and AMFA. In 1998, 2003, and earlier in 2012, AM FA had organized campaigns to replace TWU as the collective bargaining representative of American’s mechanics and related employees. SAC ¶¶ 26, 33. See Opinion and Orde r, Schalk v. Transp. Workers Union, No. 03- 804, 2007 WL 1310171, at *1 (S.D.N.Y. May 3, 2007) (describing a bitter rivalry between AMFA and TWU over representation of American mechanics). Each of those drives failed, according to Plaintiffs, because the Tulsa mechan ics consistently opposed any switch to AMFA. SAC ¶¶ 24, 33. Several TWU members have been removed from leadership positions in the union due to their public suppor t of AMFA. SAC ¶¶ 30–32. Against that historical backdr op, Plaintiffs allege the TWU e ngaged in a number of unfair practices during the 2012 CBA ne gotiations to protect its supporters in Tulsa and inflict disproportionate losses on what it viewed as troublesome dissenters. They claim TWU leadership was “openly hostile” during the negotia tions to the presidents of the non-Tulsa local unions, whom it considered to be loyal to AMFA. SAC ¶ 42. Plaintiffs also contend that the TWU allowed the Tulsa local to negotiate direct ly with American bargaining representatives, resulting in reduced job losses and improved work ing conditions, while other locals were denied this access. SAC ¶¶ 49, 64. When it came time for ratification, Plaintiffs maintain the TWU refused to hold meetings outside the Tulsa base to educate members about the proposed offer. SAC ¶ 77. The TWU’s “fail[ure] to devote time and effort” on behalf of the line mechanics and non-Tulsa maintenance workers, according to Plainti ffs, resulted in a contract with inferior work4 rules in areas such as overtime and vacation da ys, loss of seniority, and increased job losses for those whom TWU leadership perceived were supporting AMFA. SAC ¶¶ 73, 74, 85.

Plaintiffs filed suit in Febr uary 2013. After an interim am endment, they filed a second amended complaint in August 2013 alleging the TWU’s actions breached the union’s duty of fair representation to them and other putative clas s members. See Vaca v. Sipes, 386 U.S. 171, 177 (1967) (unions have a duty “to serve the in terests of all member s without hostility or discrimination towards any, to exercise its disc retion with complete good faith and honesty, and to avoid arbitrary conduct”). Plaintiffs also allege that the TWU’s conduct during the CBA ratification process violated th eir right under the Labor-Managem ent Reporting and Disclosure Act (“LMRDA”) to have a “meaningful” vote in union elections. See Bunz v. Moving Picture Mach. Operators’ Protective Union Lo cal 224, 567 F.2d 1117, 1121 (D.C. Cir. 1977). Soon after Plaintiffs filed suit, American a nnounced a proposed merger with US Airways. The merger was consummated in December 2013. Def.’s Opp’n to Pls.’ Second Mot. Leave to File Supplement Ex. A, at *1. In the wake of the merger, the TWU entered into an association

with the International Association of Machinists (“IAM”), which represents mechanics and other workers at US Airways. Id. at *2. The two unions petitioned the National Mediation Board on August 6, 2014 for a finding that the merged airline is operating as a single carrier. Id. at *1. This finding is a first step to certifying a TWU-IAM joint counc il as the exclusive bargaining representative of the combined airline’s mechanics. The TWU has moved to dismiss the second amended complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6 ). At the threshold, the union contends that the Court lacks subject matter jurisdiction over the case because Plaintiffs cannot satisfy the injury-in-fact requirement of Article III sta nding in light of the numerous contingencies and uncertainties5 surrounding the timing of any future bargaining with the merged airline a nd the role of the TWU in that bargaining. The union points out that th ere are currently no planne d system-wide contract negotiations between the TWU and American a nd, due to the uncertainty over who will be representing the combined carrier going forward, there may never be. It also asserts that the TWU has installed new leadership since the last round of collectiv e bargaining that could take a different negotiating position from prior leadership. The TWU t hus argues the Plaintiffs have failed to allege a substantial likelihood of future harm as required to establish standing. It asserts, in a similar vein, that the action is unripe. As for the merits, TWU contends that Plaintiffs have failed to plead facts that would support a finding th at the union breached its duty of fair representation or violat ed their voting rights under the LM RDA. Because the Court will dismiss the second amended complaint for lack of standing, it does not address the union’s arguments that Plaintiffs failed to state a claim under Rule 12(b)(6).

II. Analysis

A. Standing Under Federal Rule of Civil Procedure 12( b)(1), a plaintiff be ars the burden of establishing jurisdiction by a pre ponderance of the evidence. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The Court must accept all factual allegations as true, and plaintiffs

receive the benefit of all favorable inferences that can be drawn from the alleged facts. Little v. Fenty, 689 F. Supp. 2d 163, 167 (D.D.C. 2010). But a c ourt scrutinizes factual allegations more closely in resolving a Rule 12(b) (1) motion than in resolving a Ru le 12(b)(6) motion to dismiss. Id. A court may also examine evidence outside the complaint to decide a Rule 12(b)(1) motion to dismiss. Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005).6 To establish standing, a plainti ff must allege: (1) an “injury in fact” that is “concrete and particularized” and “actual or imminent,” (2) a causal connection betw een the injury and the offensive conduct, and (3) likely redressability. Lujan, 504 U.S. at 561. In cases seeking an injunction or other prospective relief, a plaintiff must identify a threatened injury that is “certainly impending” and not simply “possible. ” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013). 2 “Certainly impending” does not mean that the injury must be certain to occur. Id. at 1150 n.5 (“Our cases do not uniformly require plaintiffs to demonstrate that it is literally certain that the harms th ey identify will come about.”). But there must be a “substantial risk” that the alleged injury will occur. Id. The threatened injury must also be “imminent” in the temporal sense. McConnell v. Fed. Election Comm’n, 540 U.S. 93, 226 (2003) (holding that a political candidate’s a lleged injury was “too remote” to sa tisfy Article III standing because it

would not occur until his reelecti on campaign, if at all). A court may reasonably infer future injury when a party is openly committed to the action challenged by the plaintiff. E.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 152–53 (2010); Sierra Club v. Jewell, 764 F.3d 1, 7 (D.C. Cir. 2014). But an alleged injury cannot support standing if it is based primarily on conjecture about future actions and respons es. E.g., DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344 (2006).

Plaintiffs have identified thr ee alleged future injuries from which they seek relief. The first, which Plaintiffs outline in the prayer for relief section of the second amended complaint, is discriminatory conduct during future negotiati ons between the TWU and American (or its

2 Plaintiffs’ request for a d eclaratory judgment does not reli eve them from pleading impending injury. The Declaratory Judgment Act widens the range of remedies a federal court may order, but does not enlarge federal jurisd iction. Grand Lodge of Fraterna l Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 15 n.4 (D.D.C. 2001). Therefore a plaintiff seeking a declaratory judgment must still present a “substantial controversy . . . of sufficient immediacy and reality” in order to have standing. Fed. Exp. Corp. v. Air Line Pilots Ass’n, 67 F.3d 961, 964 (D.C. Cir. 1995).7 successor) concerning a new CBA or amendments to the present agreement. SAC ¶ D. The second is unfair treatment during negotiations over a new CBA between a potential TWU-IAM joint council and the now-merged airline. Pls.’ Opp’n Mot. Dismiss at 16. And the third, which Plaintiffs raise for the first time in their opposit ion papers, is bias against them in connection with day-to-day implementation of the existi ng CBA. Id. at 13–16. Th e Court will apply the standing principles discussed above to each of these alleged future injuries.

i. System-Wide CBA Negotiations Between the TWU and American The crux of Plaintiffs’ complaint is that the TWU favored Tulsa-based mechanics in its negotiations with American over the current CBA . They therefore seek to prevent the TWU from engaging in similar favoritism in future system-wide negotiations. 3 These allegations, however, do not describe a substantially likely futu re injury for two reasons. First, as noted above, the TWU and IAM have petitioned the Nati onal Mediation Board to find that the merged American/US Airways is operating as a single car rier. Should the Board make that finding—and Plaintiffs do not suggest it will not—the TWU and IAM have indi cated they will form a joint council to be the exclusive bargaining repres entative of the combined airline’s mechanics. 4 The

3 The Plaintiffs’ primary focus on injuries st emming from further system-wide bargaining is evident from the prayer for relief in the s econd amended complaint. Plaintiffs request a permanent injunction requiring the TWU to “[r]efr ain from participating in secret bargaining sessions with the company that are undisclo sed to, or unauthorized by, any full negotiating committee[; and] . . . [r]efrain from negotiati ng with the company with less than the full complement of any constitutionally designate d negotiating committee.” SAC ¶ D. The injunction would also require the TWU to “[p]rovide reasonable advance notice to all designated members of the full or any sub negotiating committ ees, of any bargaining sessions[; and] . . . hold meetings at all stations, line or base, if a ny meetings are held at any station, for the purpose of educating members about the contents of a pr oposed contract or amendment in advance of a ratification vote.” Id. All of these requirements relate only to future system-wide bargaining.

4 Although Plaintiffs do not dispute the merged ai rline is operating as a si ngle carrier, they are contesting before the National Mediation Board whether the joint council may be listed as the incumbent on a single carrier union election ballot, an advantage th ey describe as “virtually insuperable.” Pls.’ Second Mot. Leave to File S upplement Ex. 9. Plaintiffs’ challenge before the8 TWU itself would no longer serve that role and, ther efore, could not engage in the types of unfair practices that Plaintiffs seek to enjoin. Second, the current CBA will not expire un til September 2018, and the union cannot seek to amend it before September 2016. As a result, even if the TWU remained the exclusive bargaining representative of the combined airline’s mechanics, the potential for system-wide unfair negotiating practices will not arise until sometime after 2016. Plaintiffs have not alleged when the TWU or the airline intends to reopen negotiations, what the ba rgaining position of the TWU will be, or how that position will harm the Pl aintiffs’ interests. The alleged injury is therefore not sufficiently “imminent” or “impe nding” to confer standi ng. McConnell, 540 U.S.

at 226. Given the distinct possibility that the TWU will not be the exclusive bargaining representative in negotiations over the next CBA , and the lack of information regarding when and how negotiations can be expected to unfold, Pl aintiffs have not demonstrated a substantial risk that TWU’s alleged favoritism towards the Tulsa mechanics in the last round of system-wide bargaining will reoccur. This source of alleged fu ture injury is therefore insufficient to establish standing.

ii. System-Wide CBA Negotiations Between a Joint Council and the Airline In response to the TWU’s argument that any risk of future injury would be reduced by the formation of a joint council, Plaintiffs contend that the TWU, as a member of the joint council, would nevertheless be in a position to influence future system-wide negotiations to Plaintiffs’ detriment. Pls.’ Opp’n Mot. Dismiss at 19–20. The distribution of powers in and composition of any joint council have yet to be determined, howev er. Plaintiffs have not alleged who the TWU

Board only heightens the uncertainty regarding what entity will represent mechanics at the merged airline going forward.9 representatives on the joint c ouncil will be; how the TWU’s stance might be adverse to the Plaintiffs’ interests; or, even if it proves to be adverse, whether the TWU representatives would be in a position to compel the jo int council to engage in the types of unfair practices alleged in the second amended complaint. Given these uncer tainties, the possibility that the TWU might harm the Plaintiffs via its influence over any future joint council is too speculative to satisfy Article III standing requirements. 5

iii. “Day-to-Day” Negotiations over Impl ementation of the Current CBA Finally, Plaintiffs oppose the union’s motion to dismiss on the grounds that the relief they seek is necessary to protect them from unfair treatment in the ad ministration of the current CBA. Emphasizing the general principle that collective bargaining is an ongoing, day-to-day process, e.g., Conley v. Gibson, 355 U.S. 41, 46 (1957), Plain tiffs assert that co ntinuing negotiations between the TWU and American “on a variety of subjects” expose them to harm. Pls.’ Opp’n

Mot. Dismiss at 13. Yet the s econd amended complaint fails even to mention any specific dayto-day negotiations, let alone allege injuri es stemming from them. Although the Court may examine evidence outside the complaint to decide a Rule 12(b)(1) motion to dismiss, see Jerome Stevens Pharmaceuticals, 402 F.3d at 1253, Plaintiffs still have not meet their burden to allege likely injury arising from da y-to-day representation. In support of their allegations of day-to-day harm, Plaintiffs quote excerpts from several “letters of memorandum” concerning issues the part ies apparently left open for further discussion during the 2012 CBA negotiations. As the TWU points out, however , the portions of the letters quoted by Plaintiffs reveal that the covered topi cs may never be the subject of negotiations. Def.’s Reply Mot. Dismiss at 4 n.16 (L etter 9 (“referring to a Committee that may ‘recommend

5 The Court notes that the re quested declaratory judgment and injunc tion against the TWU would not bind any future joint council, which would be a different entity.10 possible changes’) . . . ; Letter 15 (recognizing need fo r negotiations ‘ if the Company designs a schedule that consists of more than an eight (8 ) hour workday’) . . . ; Letter 18 (stating that the parties ‘ may revisit [certain] practices if necessary ’”)) (emphasis added). 6 Plaintiffs do not allege that either side intends to open negotiations over the topics cove red by these letters, or, if it did, when those negotiations might occur or what their outcome might be. The TWU also contends that any day-to-day negotiations on topics left open in the CBA would be conducted by TWU locals, which are not hostile to Plaintiffs. Indeed, two of the Plaintiffs are presidents of local unions. Id. at 4–5; Drummond Decl. ¶ 3, Jan. 15, 2014.

Plaintiffs counter that the national union would nonetheless have veto power over local decisions. In support of this argument, Plaintiffs cite a June 2014 letter from TWU International to two union locals ordering them to cease negotia tions with the merged airline. Pls.’ Opp’n Mot. Dismiss Ex. 6. Plaintiffs argued at the h earing that this letter demonstrates that TWU refuses to let union locals conduct negotiations. The letter, however, concerned bargaining over a new general contract, not local work arrangement s. Id. It therefore does not rebut the union’s argument that authority over day-to-day CBA im plementation lies with the locals. Given the uncertainty regarding the likelihood of future di scussions under the lett ers of memorandum and the degree of local control over such day-to-day contract administration, Plaintiffs have not

established that the letters of me morandum give rise to a “substan tial risk” of future injury. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1150 n.5 (2013). In sum, because none of the Plaintiffs’ alleged future injuri es is “certainly impending,” they have not met their burden to establish standing.

6 Aside from Letter of Memorandum 8, Pls.’ Opp’ n Mot. Dismiss Ex. 8, which merely lists local letters of agreement that are no longer in for ce, Plaintiffs did not in clude these letters of memorandum as exhibits to their opposition brief, so the complete letters are not a part of the record before the Court.11 B. Ripeness This case is also unripe. Ar ticle III prohibits “courts from issuing advisory opinions on speculative claims.” Am. Tort Reform Ass’n v. Occupational Safety & Health Admin., 738 F.3d 387, 396 (D.C. Cir. 2013). Thus, the Court may not entertain a claim unless it is constitutionally ripe. Nevada v. Dep’t of Energy, 457 F.3d 78, 83 (D.C. Cir. 2006). The ripeness doctrine requires the Court to examine “the ‘fitness of the issues for judicial decision’ and the ‘hardship to the parties of withholding court consideration.’” Id. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). Here, the ripeness analysis overlaps substant ially with the standi ng inquiry discussed above; the lack of an impending in jury means this Court does not have jurisdiction under Article III. The Ninth Circuit recently affirmed the dismissal of a similar case due to lack of ripeness. Addington v. U.S. Airline Pilots Ass’n, 606 F.3d 1174 (9th Cir. 2010). In that matter, the union was “constitutionally committed” to a bargaini ng position in upcoming CBA negotiations that the plaintiffs considered adverse to their interest s. Id. at 1177. The Ni nth Circuit nevertheless found that multiple contingencies—concerning what proposal would be acceptable to the airline and whether members would ratify it—made th e claims unduly speculative. Id. at 1179–80. Here, system-wide negotiations may not reoccur as alleged, or at all, and there are no concrete effects or actions to evaluate against the union ’s obligations. The second amended complaint is therefore unripe for adjudication.12 III. Conclusion For the foregoing reasons, the Court will grant the TWU’s Motion to Dismiss the complaint. The TWU’s motions to supplement the record also will be granted. Plaintiffs’ motion to certify the class will be denied as moot. The Court will issue a separate Order consistent with this Opinion.

CHRISTOPHER R. COOPER United States District Judge

Date: December 1, 2014