IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20578

MICHAEL A. CARR; GREGORY KATHAN; PERRY MEIER; KELLY L'ROY; 

CHARLES MULHALL; SCOTT MUND, 

 Plaintiffs - Appellants 

v. 

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, 

 Defendant - Appellee 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:14-CV-451

Before STEWART, Chief Judge, and WIENER and PRADO, Circuit Judges. 

PER CURIAM:*

Plaintiffs-Appellants, Michael Carr, Gregory Kathan, Perry Meier, Kelly 

L’Roy, Charles Mulhall, and Scott Mund (“Appellants”), formerly pilots for 

Continental Airlines (“Continental”) but now pilots for United Airlines 

(“United”), sued their collective bargaining agent, Defendant-Appellee Air Line 

Pilots Association International (“ALPA”), on behalf of themselves and all 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 13, 2017

Lyle W. Cayce

Clerk

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former Continental pilots. Appellants alleged that ALPA breached the duty of 

fair representation by interfering with the process of creating an integrated 

pilot seniority list (“seniority list”) for all pilots of the two merging airlines, 

Continental and United Airlines. The district court granted ALPA’s motion for 

a summary judgment and dismissed the Appellants’ suit. We affirm. 

I. 

FACTS AND PROCEEDINGS

A. Factual Background 

In 2010, United and Continental merged, operating thereafter as United.

ALPA represented the pilots of both airlines as their collective bargaining 

agent before and during the merger. 

ALPA had a preexisting Merger Policy which required it to “provide the 

process” when two airlines whose pilots it represented merged. That process

included the integration of the two seniority lists into one. ALPA’s 

representation structure before and during this merger included Master 

Executive Councils (“MECs”) elected to represent each airline’s pilot group.

ALPA’s role during a merger is limited to providing the Merger Policy and 

facilitating the merger in accordance with that policy. In this case, each MEC 

appointed a three-member “Merger Committee” to create the seniority list. 

Pursuant to ALPA’s Merger Policy, the Merger Committees had “complete and 

full authority” to negotiate and, if necessary, arbitrate a “fair and equitable” 

and “final and binding” seniority list. ALPA Merger Policy permitted the MECs 

and Merger Committees to “fashion their own process” for integrating the

seniority lists, while observing specified “fundamental requirements.” 

Ultimately, the MECs and Merger Committees were unable to agree on 

a seniority list. ALPA’s Merger Policy specifies that if the pilots are unable to

agree on a seniority list, arbitrators would merge the existing lists. The Merger 

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Committees voluntarily agreed to select the arbitrators from a list proffered by 

ALPA. 

During the course of the arbitration, two discovery disputes arose, and 

the Merger Committees chose a separate arbitrator to referee those two 

disputes. First, Continental requested that United provide specific W-2 data 

showing each pilot’s earnings for a period. The discovery arbitrator ruled that 

Continental could discover earnings information from the W-2s, subject to

confidentiality procedures designed to prevent disclosure of the pilots’ seniority 

numbers. Second, the arbitrator granted United’s request for Continental 

pilots’ defined-benefit plan records and did not subject that request to any 

restrictions, even though he acknowledged that the parties had agreed to 

protect the confidentiality of the information with respect to those records. 

Following 16 days of hearings, during which both sides submitted 

extensive testimony, expert witness reports, and documents, each side

presented its proposal for integrating the seniority lists. The arbitrators 

subsequently issued an award that integrated the seniority lists into one list. 

The arbitrators included a thorough explanation of how they incorporated the 

factors required by the ALPA Merger Policy. The arbitrators rejected various 

parts of Continental’s and United’s proposals in coming up with the seniority 

list. Thereafter, United implemented that list, and the combined groups of 

pilots have been working under it ever since. 

B. Procedural Background

Appellants filed the instant complaint, alleging that ALPA breached its 

duty of fair representation by acting in bad faith. Appellants requested that 

the court vacate the arbitration award and order ALPA to start a new seniority 

list integration process. 

ALPA filed a motion to dismiss on the pleadings. The district court 

denied that motion and converted it to a motion for summary judgment, 

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allowing “tailored discovery” on the issue of ALPA’s alleged breach. ALPA 

renewed its motion for summary judgment following preliminary discovery. 

The court granted that motion and Appellants timely appealed. 

II. 

STANDARD OF REVIEW

“We review a grant of summary judgment de novo under the same 

standard applied by the district court.”1 Summary judgment is appropriate 

when “there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.”2 We consider the evidence in the light 

most favorable to the nonmoving party and draw all reasonable inferences in 

its favor.3 

“Once a movant who does not have the burden of proof at trial makes a 

properly supported motion” for summary judgment, “the burden shifts to the 

nonmovant to show that [the motion] should not be granted.”4 To do so, the 

nonmovant must “identify specific evidence in the record and . . . articulate the 

precise manner in which that evidence supports his or her claim.”5 Neither we 

nor the district court have a duty to “sift through the record in search of 

evidence to support” the nonmovant’s opposition to summary judgment.6

 

1 Boone v. Citigroup, Inc., 416 F.3d 382, 392–93 (5th Cir. 2005). 2 FED. R. CIV. P. 56(a).

3 See Lawyers Title Ins. Corp. v. Doubletree Partners, L.P., 739 F.3d 848, 856 (5th Cir. 

2014).

4 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). 5 Id.; accord RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).

6 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Skotak v. Tenneco Resins, 

Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)).

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III. 

ANALYSIS

A. Breach of the Duty of Fair Representation 

1. Applicable Law 

The duty of fair representation requires a union “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.”7 The fact that a union decided a dispute in a way that favored one 

group’s interests over another is not sufficient to show a breach of that duty.8 

Unions have broad discretion in resolving internal disputes, and their 

actions are judged by a “wide range of reasonableness.”9 A breach of fair duty 

occurs only when the union’s conduct is “arbitrary, discriminatory, or in bad 

faith.”10 Here, Appellants allege only bad faith. 

Bad faith occurs when a union acts with a “motive to harm” a particular 

group, and turns on the subjective motivation of the union officials.11 Bad faith 

is a “demanding standard” met only by “sufficiently egregious” union action.12

To prove that ALPA violated its duty to fairly represent all members by acting 

in bad faith, Appellants must show that the union acted intentionally to harm 

them by “seriously undermin[ing] the integrity of the arbitral process.”13 Even 

if a member shows that his union breached its duty, he must also show that 

the breach “contributed to the erroneous outcome of the . . . proceedings.”14

 

7 O’Neill v. Airline Pilots Ass’n, Int’l, 939 F.2d 1199, 1201 (5th Cir. 1991) (quoting Vaca 

v. Sipes, 386 U.S. 171, 177 (1967)).

8 Id.

9 Id. at 1204 (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953)).

10 Id. (quoting Vaca, 386 U.S. at 190). 

11 Id. at 1204.

12 Id. at 1203 (quoting Alicea v. Suffield Poultry Inc., 902 F.2d 125, 130-31 (1st Cir. 

1990)). 

13 Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567 (1976). 

14 Id. at 568. 

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2. Analysis 

Appellants allege that underlying ALPA’s bad faith was its preference 

for United pilots.15 We address Appellants’ supporting contentions in turn. 

a. Richard Harwood’s Participation 

Appellants assert that ALPA acted in bad faith by not barring – and 

allegedly encouraging – the participation of Delta Airlines pilot Richard 

Harwood (“Harwood”) in the merger proceedings. Harwood was hired by the 

United Merger Committee as a consultant and testified in the arbitration 

proceeding on the longevity factor. Then, after the hearings ended, Harwood 

worked as a member of the arbitration panel’s technical assistance team. That 

team consisted of technical experts designated by both Merger Committees to 

help the panel members obtain data required to generate the seniority list. 

Appellants focus on the fact that ALPA rules state that an MEC is 

prohibited from hiring “active member pilots” as consultants and that Harwood 

was an active member pilot. However, a separate ALPA rule in the Merger 

Policy gives the Merger Committees “complete and full authority” to act on 

behalf of the pilots they represent. That authority would include the hiring and 

paying of consultants of its choice, thereby making Harwood’s participation 

completely consistent with ALPA policy. It is unclear how these provisions are 

meant to interact, but a union’s interpretation of its own governing documents 

is entitled to deference unless the interpretation is “patently unreasonable,”16

which ALPA’s interpretation is not. The Merger Policy vests broad discretion 

in the Merger Committees to create seniority lists, and the provisions of ALPA 

 

15 After the two airlines merged, the United pilots were in the majority and could vote 

to decertify ALPA as its collective bargaining agent. This would significantly decrease 

ALPA’s membership and thus membership dues it would receive. 16 O’Neill, 939 F.2d at 1206 (quoting Newell v. Int’l Bhd. of Elec. Workers, 789 F.2d 

1186, 1189 (5th Cir. 1986)). 

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policy that prohibit active member pilots from consulting specifically limits 

this prohibition to MECs: It does not apply to Merger Committees. 

Appellants also allege that ALPA encouraged – or at least did not 

discourage – Harwood’s participation in the arbitration process. However, it 

was the United Merger Committee, not ALPA, that had the authority to hire 

Harwood as a consultant and did so. Appellants adduced no evidence to show 

that bad faith motivated ALPA’s decision not to prevent Harwood’s 

participation. 

Appellants further claim that they were misinformed as to the nature of 

Harwood’s participation in the arbitration proceedings. They claim that they 

were led to believe that Harwood would work only in a technical capacity, yet 

he also testified on longevity. Appellants did not object to Harwood’s testimony 

or service at any point during the arbitration. Moreover, the arbitrators had 

full authority to exclude Harwood if they believed that his testimony was 

inappropriate or that he lacked credibility, but they did not do so. 

Appellants finally insist that ALPA violated its policy by paying 

Harwood. ALPA policy provides that “ALPA shall not, under any 

circumstances, pay any legal or consulting fees incurred by pilot groups 

involved in merger activity between any two ALPA represented carriers.” 

Rather, such fees must be paid from a fund maintained by the MEC, and 

ALPA’s annual report for 2012 reflected a payment to Harwood. However, the 

record clearly shows that checks to Harwood were drawn on United’s Merger 

Assessment Fund, strictly in accordance with ALPA policy: ALPA insists that 

the inclusion of this payment on the 2012 annual report was a mistake. Thus, 

Harwood’s participation, testimony, and payment does not constitute a breach 

of the duty of fair representation by ALPA. 

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 b. Discovery Disputes 

Under its Merger Policy, ALPA was required to obtain discoverable 

records from both United and Continental and to provide those records to the 

pilot groups during arbitration. Appellants contend that ALPA helped United 

win discovery disputes. This claim relates to the arbitrator’s denial of 

Continental’s request for United pilots’ W-2s and the arbitrator’s grant of 

United’s request for the dates on which Continental pilots joined the airline’s 

defined benefits plan. 

Appellants maintain that ALPA’s decision to send a representative to the 

hearing on Continental’s request for United pilots’ W-2s supports this 

contention. Appellants allege that inappropriate ex-parte communications took 

place between the arbitrator and ALPA’s representative at the hearing, 

ultimately leading the arbitrator to deny Continental’s request. However, the 

record shows that the ALPA representative engaged only in pleasantries with 

the arbitrator and did not discuss any substantive matters. In addition, the 

arbitrator’s award at least partially favored Continental’s position because he 

concluded that parts of the W-2s were necessary and appropriate. He simply 

ordered that the request for pay data must be subject to narrow restrictions to 

address privacy concerns. 

On the other hand, ALPA did not send a representative to the hearing 

on United’s discovery request, which was granted. Appellants contend that this 

too is evidence of bad faith. As stated by the district court, however, “[t]he 

differences between the discovery sought in each of the two production requests

and the limits on the documents produced to protect individual pilot privacy 

while allowing each side to obtain needed information, are amply 

demonstrated in the record.” ALPA’s duty to facilitate and obtain discovery 

between the parties is not as sensitive when requesting for the date a defined 

benefits plan started as it is when requesting specific pilot income and tax

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information from a pilot’s W-2. Appellants have adduced no evidence that

ALPA acted with bad faith regarding the discovery disputes. 

 c. Ex Parte Communications 

Appellants also assert that ALPA’s director of representation, Bruce 

York, engaged in ex parte communications with one of the arbitrators. These 

communications include: (1) an email from York to the arbitrator stating “we’ll 

soon see all three photos on the wall in the U.S. Post Office,” (2) an email from 

the arbitrator to York stating “Will call you when I can give you a progress 

report on how things are going,” (3) a statement by the arbitrator to York that 

the panel was on schedule to issue the award and that he had “more later” to 

say, and (4) a statement by the arbitrator two days before the award was issued 

that “one of these days I’ll tell you some stories.” Such utterances might be 

unprofessional, but Appellants adduced no evidence to support their claim that 

ALPA was acting in bad faith with regard to these statements. Appellants only 

speculate that there is an underlying scheme in which the arbitrators are 

concerned about political consequences for ALPA because they want to 

continue to serve as ALPA arbitrators in future disputes. As Appellants fail to 

make a connection between these statements and bad faith on the part of 

ALPA, they do not meet the standard necessary to avoid summary judgment. 

Appellants have also failed entirely to show that any of ALPA’s conduct

“contributed to the erroneous outcome of the . . . proceedings.”17 The seniority 

list created by the arbitrators contains a full explanation of the factors that

were considered in creating that list, including all of the factors that were 

required by the ALPA Merger Policy. The panel’s seniority list is supported by 

ample evidence and by testimony that the way in which the arbitrators

considered various factors to create the list is the best approach. Appellants 

 

17 Hines, 424 U.S. at 568. 

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have raised no material fact issue that any alleged breach of the duty of fair 

representation on the part of ALPA affected the arbitrator’s award in any way. 

The district court did not err in granting ALPA’s motion for summary 

judgment. 

B. The District Court’s Focus on Fairness Versus Bad Faith 

Appellants also contend that the district court erred by improperly 

focusing on the establishment of “a fair process for determining seniority” in 

the creation of a seniority list which, they argue, is to be limited to cases in 

which there is an alleged to be breach of the duty of fair representation through 

discrimination. The district court did discuss fairness in its opinion, but 

Appellants are completely wrong in asserting that the court did not adequately 

analyze ALPA’s conduct in light of the allegation of bad faith. To the contrary, 

the court’s opinion is replete with analyses of bad faith. 

IV.

CONCLUSION

We AFFIRM the district court’s judgment dismissing Appellants’ action 

with prejudice.

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