                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


BRUCE BECKINGTON; JOHN                    No. 18-15648
JURIK; JAMES VAN SICKLE,
           Plaintiffs-Appellants,          D.C. No.
                                      2:17-cv-00328-JJT
               v.

AMERICAN AIRLINES, INC.,                   OPINION
          Defendant-Appellee.


      Appeal from the United States District Court
               for the District of Arizona
      John Joseph Tuchi, District Judge, Presiding

         Argued and Submitted March 27, 2019
               San Francisco, California

                    Filed June 10, 2019

     Before: A. Wallace Tashima, Susan P. Graber,
           and Jay S. Bybee, Circuit Judges.

                Opinion by Judge Bybee
2             BECKINGTON V. AMERICAN AIRLINES

                            SUMMARY*


                             Labor Law

    The panel affirmed the district court’s dismissal for
failure to state a claim of an action brought by airline pilots,
seeking damages under the Railway Labor Act against their
employer for allegedly “colluding” with a union in the
union’s breach of its duty of fair representation.

    In 2005, US Airways and America West Airlines merged
to form a single carrier, which kept the name US Airways.
The Air Line Pilots Association represented both the US
Airways Pilots (the “East Pilots”) and the America West
pilots (the “West Pilots”). The East Pilots and the West
Pilots engaged in a seniority dispute that went to arbitration.
The East Pilots formed a new union, the US Airline Pilots
Association (“USAPA”), which became the bargaining
representative for all the pilots. In Addington I, a group of
West Pilots alleged that USAPA breached its duty of fair
representation by failing to pursue implementation of the
arbitration award, known as the “Nicolau Award.” In
Addington II, US Airways sued USAPA and the West Pilots,
seeking declaratory relief. In anticipation of a merger
between US Airways and American Airlines, the two airlines,
USAPA, and the union for American’s pilots negotiated a
memorandum of understanding (“MOU”) addressing pilot
seniority. In Addington III, a group of West Pilots alleged
that USAPA breached its duty of fair representation by
including in the MOU Paragraph 10(h), which abandoned the

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
            BECKINGTON V. AMERICAN AIRLINES                    3

Nicolau Award. The court of appeals reversed the district
court’s judgment after trial in part, holding that USAPA
breached its duty of fair representation by inserting Paragraph
10(h) into the MOU. In arbitration pursuant to the MOU, the
arbitration panel issued a decision declining to implement the
Nicolau Award and using a different methodology for
integrating the pilots’ seniority lists.

    Former West Pilots filed Addington IV, seeking damages
under the Railway Labor Act for US Airways’s “collusion”
in USAPA’s breach of its duty of fair representation.
Affirming the district court’s dismissal, and disagreeing with
the Seventh Circuit, the panel held that employees aggrieved
by a union’s breach of its duty of fair representation during
collective bargaining cannot sue their employer for
“colluding” in the union’s breach. The panel concluded that
nothing in the Railway Labor Act’s text or collective
bargaining framework supported expansion of the doctrine
that a union owes its constituents a duty of fair representation.
The panel held that the pilots’ suit was different from a
hybrid suit, in which employees sue both their employer and
their union, because the pilots made no allegation that their
employer breached its own obligations under a collective
bargaining agreement.
4          BECKINGTON V. AMERICAN AIRLINES

                        COUNSEL

Marty Harper (argued) and Andrew S. Jacob, ASU Alumni
Law Group, Phoenix, Arizona, for Plaintiffs-Appellants.

Robert A. Siegel (argued) and Chris A. Hollinger, O’Melveny
& Myers LLP, Los Angeles, California; Paul D. Jones,
American Airlines Inc., Forth Worth, Texas; for Defendant-
Appellee.


                         OPINION

BYBEE, Circuit Judge:

    The Railway Labor Act (“RLA”), 45 U.S.C. §§ 151 et
seq., authorizes employees in the railroad and airline
industries to select a union to act as their exclusive
representative for collective bargaining with their employer.
As exclusive bargaining representative, the union assumes a
duty to “represent fairly the interests of all bargaining-unit
members during the negotiation, administration, and
enforcement of collective-bargaining agreements.” Int’l Bhd.
of Elec. Workers v. Foust, 442 U.S. 42, 47 (1979). If the
union breaches its duty of fair representation, aggrieved
employees have a cause of action against the union that is
“judicially ‘implied’” under the RLA. Id. (citation omitted).
The question in this case is whether those employees may
also sue their employer under the RLA for allegedly
“colluding” with the union in the union’s breach of duty. We
conclude that the answer is no.
            BECKINGTON V. AMERICAN AIRLINES                   5

                               I

                               A

    We begin with some background on the RLA, which
“cannot be appreciated apart from the environment out of
which it came and the purposes which it was designed to
serve.” Burlington N. R.R. Co. v. Bhd. of Maint. of Way
Emps., 481 U.S. 429, 444 (1987) (quoting Elgin, Joliet & E.
Ry. Co. v. Burley, 325 U.S. 711, 751 (1945) (Frankfurter, J.,
dissenting)).

    Enacted in 1926, the RLA followed “decades of labor
unrest” in the railroad industry that threatened “wasteful
strikes and interruptions of interstate commerce.” Id. at 444,
450 (citation omitted). Disputes over wages and working
conditions led to boycotts and strikes capable of shutting
down large swaths of the nation’s railways. See Charles M.
Rehmus, Evolution of Legislation Affecting Collective
Bargaining in the Railroad and Airline Industries, in The
Railway Labor Act at Fifty 1, 2–7 (Charles M. Rehmus ed.,
1977). States were largely unable to regulate rail lines that
extended beyond their borders, see Wabash, St. Louis & Pac.
Ry. Co. v. Illinois, 118 U.S. 557, 577 (1886), and Congress’s
prior efforts at prescribing various dispute resolution
mechanisms were unsuccessful, see Int’l Ass’n of Machinists
v. Street, 367 U.S. 740, 755–57 & nn.11–12 (1961). The
strikes in many cases turned into violent riots, which often led
to sweeping strike injunctions and, in some cases,
intervention by federal troops. Wayne L. McNaughton &
Joseph Lazar, Industrial Relations and the Government 33,
95–109 (1954); see, e.g., In re Debs, 158 U.S. 564, 582–83
(1895); King v. Ohio & Miss. Ry. Co., 14 F. Cas. 539, 540–42
(C.C.D. Ind. 1877) (No. 7,800); United States v. Ry. Emps.’
6           BECKINGTON V. AMERICAN AIRLINES

Dep’t of Am. Fed’n of Labor, 283 F. 479, 492–96 (N.D. Ill.
1922).

    By 1926, the major railroads and railroad unions
recognized the need for a peaceful and effective framework
for resolving labor disputes, and after a remarkable series of
conferences and negotiations between them, both sides agreed
on a bill that Congress enacted into law. Railway Labor Act,
Pub. L. No. 69-257, 44 Stat. 577 (1926); see Tex. & New
Orleans R.R. Co. v. Bhd. of Ry. & S.S. Clerks, 281 U.S. 548,
562–63 & n.2 (1930). Congress substantially amended the
RLA in 1934, see Street, 367 U.S. at 759–60, and in 1936
extended its “benefits and obligations” to the “then small-but-
growing air transportation industry,” Int’l Ass’n of Machinists
v. Cent. Airlines, Inc., 372 U.S. 682, 685 (1963); see
45 U.S.C. §§ 181–188.

     The RLA endeavors “to promote stability in labor-
management relations by providing a comprehensive
framework for resolving labor disputes.” Hawaiian Airlines,
Inc. v. Norris, 512 U.S. 246, 252 (1994). At “[t]he heart” of
its framework is 45 U.S.C. § 152, First, which requires labor
and management “to exert every reasonable effort to make
and maintain agreements concerning rates of pay, rules, and
working conditions, and to settle all disputes . . . in order to
avoid any interruption to commerce or to the operation of any
carrier growing out of any dispute between the carrier and the
employees thereof.” Bhd. of R.R. Trainmen v. Jacksonville
Terminal Co., 394 U.S. 369, 377–78 (1969) (alteration in
original) (quoting 45 U.S.C. § 152, First). To that end, the
RLA subjects all labor-management “disputes to virtually
endless ‘negotiation, mediation, voluntary arbitration, and
conciliation,’” Burlington N., 481 U.S. at 444 (citation
omitted), with the precise procedure dependent on the nature
              BECKINGTON V. AMERICAN AIRLINES                            7

of the underlying claims, see Alaska Airlines Inc. v. Schurke,
898 F.3d 904, 916–17 (9th Cir. 2018) (en banc), cert. denied,
139 S. Ct. 1445 (2019). And to implement this framework,
the RLA prescribes a process of collective bargaining
“between the carriers on the one hand and the employees
through their unions on the other.” Street, 367 U.S. at 760
(citation omitted).

    Accordingly, a fundamental component of the RLA’s
design is the right of employees “to organize and bargain
collectively through representatives of their own choosing.”
45 U.S.C. § 152, Fourth. Employers must “treat with” the
employees’ designated bargaining representative,1 id. § 152,
Ninth, which is chosen by a majority of the employees in a
particular “craft” or bargaining unit, id. § 152, Fourth.
Employers are prohibited from “interfer[ing] in any way with
the organization of [their] employees”; using employer funds
to “maintain[] or assist[] or contribut[e] to any labor
organization [or] labor representative”; and influencing the
“designation of representatives.” Id. § 152, Third, Fourth. In
certain circumstances, employees can sue their employer for
violating these statutory commands. See, e.g., Virginian Ry.
Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 548–49 (1937)
(refusing to bargain with designated union); Ass’n of Flight
Attendants v. Horizon Air Indus., Inc., 280 F.3d 901, 904–06
(9th Cir. 2002) (interfering with right to organize);
Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999, 1015–16
(9th Cir. 1990) (per curiam) (providing financial assistance to


    1
       “The term ‘representative’ means any person or persons, labor
union, organization, or corporation designated either by a carrier or group
of carriers or by its or their employees, to act for it or them.” 45 U.S.C.
§ 151, Sixth. We use the terms “representative” and “union”
interchangeably in this opinion.
8          BECKINGTON V. AMERICAN AIRLINES

union). And “willful” violations can result in criminal
sanctions. 45 U.S.C. § 152, Tenth.

    Once a union is chosen by a majority of the employees in
a bargaining unit, the union’s bargaining power is
“exclusive.” Steele v. Louisville & Nashville R.R. Co.,
323 U.S. 192, 194 (1944). The union “act[s] on behalf of all
the employees” within its bargaining unit, a position that
“operates to exclude any other from representing” the
employees and prohibits employees from “bargain[ing]
individually on behalf of themselves as to matters which are
properly the subject of collective bargaining.” Id. at 199–200
(emphasis added). The union’s exclusivity, moreover,
imposes on the employer an “affirmative duty to treat only
with the [selected union], and hence the negative duty to treat
with no other.” Virginian Ry., 300 U.S. at 548 (emphasis
added). Thus, by “empower[ing] unions to bargain
exclusively for all employees in a particular bargaining unit,”
the RLA “subordinate[s] individual [employee] interests to
the interests of the unit as a whole.” Foust, 442 U.S. at 46.

    Of course, with great power comes great responsibility.
Although the union is selected by a majority vote, the
Supreme Court has held that, once selected, the union’s
authority as exclusive bargaining representative carries with
it “a correlative duty ‘inseparable from the power of
representation’” to “represent fairly the interests of all
bargaining-unit members during the negotiation,
administration, and enforcement of collective-bargaining
agreements.” Id. at 46–47 (emphasis added) (quoting Steele,
323 U.S. at 204). The duty of fair representation thus acts “as
a ‘bulwark to prevent arbitrary union conduct’” against
individual employees, id. at 47 (quoting Vaca v. Sipes,
386 U.S. 171, 182 (1967)), who otherwise would have “no
            BECKINGTON V. AMERICAN AIRLINES                   9

means of protecting their interests” at the bargaining table
other than to strike, a result the RLA was specifically
designed to avoid, Steele, 323 U.S. at 200–01. To fulfill its
duty of fair representation, the union is required “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, 386 U.S. at 177). A union therefore “breaches its duty
of fair representation if its actions are either ‘arbitrary,
discriminatory, or in bad faith.’” Id. at 67 (quoting Vaca,
386 U.S. at 190); see Demetris v. Transp. Workers Union of
Am., 862 F.3d 799, 805–08 (9th Cir. 2017).

    The Supreme Court has also held that employees have a
“judicially ‘implied’” cause of action under the RLA against
their union for breaching its duty of fair representation.
Foust, 442 U.S. at 47 (quoting Steele, 323 U.S. at 204).
“[R]esort to the courts” is necessary in such circumstances,
the Court has explained, because the RLA does not contain
any administrative mechanism for aggrieved employees to
remedy the breach or “secure separate representation for the
purposes of collective bargaining”; without a cause of action
against the union, the right to fair representation “would be
sacrificed or obliterated.” Steele, 323 U.S. at 206–07. Thus,
employees can sue the union in federal court and seek “the
usual judicial remedies of injunction and award of damages
when appropriate.” Id. at 207.

                               B

    We now turn to the facts of this case—the latest chapter
in “what we have called ‘a bitter seniority dispute’” between
two factions of airline pilots. Addington v. US Airline Pilots
10          BECKINGTON V. AMERICAN AIRLINES

Ass’n, 791 F.3d 967, 971 (9th Cir. 2015) (“Addington III”)
(quoting Addington v. US Airline Pilots Ass’n, 606 F.3d 1174,
1176 (9th Cir. 2010) (“Addington I”)); see also US Airways,
Inc. v. Addington, 2012 WL 5996936, at *1–3 (D. Ariz. Oct.
11, 2012) (“Addington II”). We detailed the lengthy history
of this dispute in our prior opinions, see Addington III,
791 F.3d at 971–79; Addington I, 606 F.3d at 1177–79, and
only summarize it here.

                                1

    In 2005, US Airways and America West Airlines merged
to form a single carrier, which kept the name US Airways. At
the time, the Air Line Pilots Association (“ALPA”) was the
certified bargaining representative for both the US Airways
pilots (the “East Pilots”) and the America West pilots (the
“West Pilots”). The East Pilots significantly outnumbered the
West Pilots.

    ALPA entered into a “Transition Agreement” with the
merging airlines that set forth the process for integrating the
pilot seniority lists for the two pilot groups. The Transition
Agreement required the pilots to negotiate among themselves
a single integrated list and, if negotiations failed, to submit to
binding arbitration. Once the two sides arrived at an
integrated list, it would be presented to the airlines for
acceptance. But the Transition Agreement also provided that,
before a single seniority list could be implemented, the pilots
and the airlines must ratify a new collective bargaining
agreement—known as the “Single Agreement”—that would
apply to all of the pilots. Ratification of the Single
Agreement would require approval by a majority of both pilot
groups. Until that condition was satisfied, the existing
             BECKINGTON V. AMERICAN AIRLINES                       11

seniority lists and collective bargaining agreements for the
respective pilot groups would remain in place.

    After the East and West Pilots tried but failed to negotiate
a seniority list, ALPA arranged for arbitration before a panel
led by George Nicolau. In May 2007, the arbitration panel
issued a decision known as the “Nicolau Award,” which
composed an integrated seniority list that was generally
viewed as more favorable to the West Pilots. The East Pilots
objected to the Nicolau Award so strenuously that they
created a new union—the US Airline Pilots Association
(“USAPA”)—and then used their numerical majority to
replace ALPA with USAPA as the certified bargaining
representative for all of the pilots. In subsequent negotiations
with US Airways, USAPA ignored the Nicolau Award and
pushed for a different integrated seniority list that favored the
East Pilots.

     In 2008, a group of West Pilots filed Addington I, an
action against USAPA asserting that the union had breached
its duty of fair representation by proposing a new seniority
list instead of pursuing the implementation of the Nicolau
Award.2 606 F.3d at 1178. The West Pilots prevailed in the
district court, but we vacated the judgment on appeal after
concluding that the breach-of-duty claim against USAPA
would not be ripe until a Single Agreement had been ratified
that implemented a seniority list other than the Nicolau
Award. Id. at 1179–82.




    2
     The West Pilots also brought breach-of-contract claims against US
Airways, but those claims were dismissed for lack of jurisdiction. See
Addington I, 606 F.3d at 1178.
12         BECKINGTON V. AMERICAN AIRLINES

    Shortly thereafter, US Airways filed Addington II, a
declaratory judgment action against both USAPA and the
West Pilots. 2012 WL 5996936, at *1. In that lawsuit, US
Airways sought guidance as to whether it could be liable for
assisting in a breach of USAPA’s duty of fair representation
if it entered into a bargaining agreement that did not
implement the Nicolau Award. Id. at *3. The district court
concluded that it could not “provide as much guidance as it
had hoped it could” because the matter would not be ripe
until a Single Agreement was in place. Id. at *5. The court
did, however, find that USAPA was bound by the Transition
Agreement’s requirement to pursue the arbitrated Nicolau
Award and that USAPA’s efforts to ignore it “place[d]
USAPA on dangerous ground.” Id. at *4.

                              2

   In April 2012, US Airways began the process of a merger
with American Airlines. At the time, US Airways was still
operating with two pilot collective bargaining agreements and
two pilot seniority lists.

    In anticipation of the merger, the two airlines, USAPA,
and the union for American’s pilots negotiated a multi-party
agreement called the “Memorandum of Understanding
Regarding Contingent Collective Bargaining Agreement”
(“MOU”). The MOU set forth procedures for reaching a
Joint Collective Bargaining Agreement (“JCBA”) that would
apply to all pilots employed by post-merger American. It
also addressed seniority integration for the pilots. The MOU
required the pilots to negotiate a single merged seniority list
              BECKINGTON V. AMERICAN AIRLINES                         13

and, if negotiations failed, to submit to binding arbitration
pursuant to the McCaskill-Bond Amendment.3

    The MOU also provided the following in Paragraph
10(h): “US Airways agrees that neither this Memorandum nor
the JCBA shall provide a basis for changing the seniority lists
currently in effect at US Airways other than through the
process set forth [under McCaskill-Bond].” This provision
was inserted into the MOU by USAPA, and it had the effect
of maintaining the separate seniority lists for the East and
West Pilots by ensuring that neither the MOU itself nor the
JCBA would become the “Single Agreement” for purposes of
triggering the Nicolau Award. As USAPA put it, “under the
MOU, the Nicolau Award was dead.” Addington III,
791 F.3d at 976.

                                    3

    In March 2013, a group of West Pilots filed Addington III,
a suit against USAPA and US Airways challenging the
provenance of Paragraph 10(h). See id. The West Pilots
alleged that USAPA breached its duty of fair representation
by inserting Paragraph 10(h)—which impermissibly failed to
“treat the Nicolau Award as final and binding”—without
having a “legitimate union purpose” for doing so. Id. The
West Pilots also claimed that US Airways breached the
Transition Agreement by entering into the MOU. As
remedies, the West Pilots sought (1) a declaratory judgment


    3
     The McCaskill-Bond Amendment, 49 U.S.C. § 42112 Note, codified
longstanding labor-protective provisions requiring that, during an airline
merger, seniority lists must be combined in a “fair and equitable manner”
through negotiation and arbitration. See Addington III, 791 F.3d at 978
n.5.
14         BECKINGTON V. AMERICAN AIRLINES

that USAPA violated the duty of fair representation by
abandoning the Nicolau Award, (2) a declaratory judgment
that US Airways breached the Transition Agreement, and
(3) an injunction requiring the McCaskill-Bond panel to use
the Nicolau Award to order the US Airways pilots.

    After dismissing the breach-of-contract claim against US
Airways on jurisdictional grounds, id. at 976 n.2, the district
court “certified a class of approximately 1,600 West Pilots,
held a two-day bench trial in October 2013, and issued a
decision in January 2014,” id. at 977. The court held that
USAPA did not breach its duty of fair representation to the
West Pilots after finding that USAPA had a legitimate union
purpose for inserting Paragraph 10(h)—it prevented further
argument about the use of the Nicolau Award. Id.

    On appeal, we reversed the district court’s conclusion
with respect to the breach-of-duty claim against USAPA,
holding that USAPA breached its duty of fair representation
by inserting Paragraph 10(h) into the MOU, which
“discriminat[ed] against the West Pilots” without a
“legitimate union purpose” for doing so. Id. at 985–90. As
we explained,

       when all was said and done, the East Pilots
       repudiated their promise to be bound by the
       outcome of the agreed-upon process. When
       the East Pilots did not get the outcome they
       wanted, they simply dumped the rules and
       found a new rulemaker—USAPA—that they
       could control. . . . [T]he East Pilots fixed the
       game.
           BECKINGTON V. AMERICAN AIRLINES                  15

Id. at 986. As a remedy, we declined to order an injunction
compelling the McCaskill-Bond panel to use the Nicolau
Award, as “we can never be certain whether efforts to
implement the Nicolau Award through a collective bargaining
agreement with US Airways would have succeeded.” Id. at
991 & n.12. Instead, we allowed the McCaskill-Bond
arbitration to proceed, but we directed the district court “to
enter an order enjoining USAPA from participating in the
McCaskill-Bond seniority integration proceedings . . . except
to the extent USAPA advocates [for] the Nicolau Award.” Id.
at 991. Following our decision, USAPA withdrew from the
McCaskill-Bond arbitration proceedings altogether, forcing
the East Pilots to secure new representation during the
arbitration.

    The arbitration commenced in September 2015, and a
year later, on September 6, 2016, the McCaskill-Bond panel
issued a 60-page decision. Addressing the “elephant in the
room” head on, the panel declined to implement the Nicolau
Award. The panel explained that, although the Nicolau
Award represented “an experienced arbitration panel’s best
judgment of a fair and equitable basis to integrate the
seniority of the East and West pilot groups in 2007, . . . many
of the relevant facts and circumstances and equities that must
be weighed and balanced” had “changed, some dramatically,”
in the intervening decade. Given that “[t]he courts have
uniformly declined to impose, enforce or direct
implementation of the Nicolau Award,” the panel was
ultimately “not persuaded that updating and implementing the
[Nicolau Award] is legally mandated, necessary, or
appropriate, given the facts and circumstances extant on our
16           BECKINGTON V. AMERICAN AIRLINES

snapshot date of December 9, 2013.”4             Instead of
implementing the Nicolau Award, the panel used a different
methodology that it believed would “provide[] the most
appropriate basis upon which to integrate the seniority of the
East and West Pilots.”

                                   C

    In February 2017, plaintiffs—former West Pilots—filed
this suit against post-merger American seeking damages
under the Railway Labor Act for US Airways’s “collusion”
in USAPA’s breach of its duty of fair representation.5
According to plaintiffs’ complaint, “[a] carrier shares liability
for a union’s [duty-of-fair-representation] breach if it colludes
in that breach.” And in this case, they allege, “[American]
(then US Airways) colluded with USAPA to eliminate its
obligation to use the Nicolau List to integrate pilot
operations” in two ways: (1) by participating in “a meeting or
series of mostly attorneys-only meetings” during which
Paragraph 10(h) was drafted, and (2) by failing to evaluate
USAPA’s proposal “to ensure that it is reasonable and
supported by a legitimate union purpose.”

    The district court granted American’s motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6). Beckington
v. Am. Airlines Inc., 2018 WL 1400074 (D. Ariz. Mar. 20,
2018). The court appeared to accept plaintiffs’ premise that


     4
      The “snapshot date” is the date that the McCaskill-Bond panel used
to assess the equities of the pilot groups.
     5
      Plaintiffs apparently entered into a settlement agreement with
USAPA that waived their ability to seek damages from USAPA for its
breach of duty.
            BECKINGTON V. AMERICAN AIRLINES                  17

an employer can be held liable under the RLA for its
“collusion” in a union’s breach of duty. Id. at *4 (citing
United Indep. Flight Officers, Inc. v. United Air Lines, Inc.,
756 F.2d 1274, 1283 (7th Cir. 1985)). But the court
dismissed plaintiffs’ claim after concluding that they failed to
adequately allege a “causal connection” between the union’s
breach of duty and the injuries alleged in this case; and failed
to adequately allege “collusion,” which the court defined as
“bad faith, discrimination or hostility toward the plaintiff.”
Id. at *5–6.      Plaintiffs appealed, and we requested
supplemental briefing on whether there is a basis—statutory
or otherwise—for a standalone claim against an employer for
“colluding” in a union’s breach of its duty of fair
representation.

                               II

    We review de novo the district court’s grant of a motion
to dismiss under Rule 12(b)(6) and may affirm on any ground
supported by the record. Ebner v. Fresh, Inc., 838 F.3d 958,
962 (9th Cir. 2016). To survive a motion to dismiss, the
complaint must contain sufficient “well-pleaded,
nonconclusory factual allegation[s],” accepted as true, to state
“a plausible claim for relief.” Ashcroft v. Iqbal, 556 U.S.
662, 679–80 (2009). Dismissal is appropriate when the
complaint lacks a “cognizable legal theory” or sufficient
factual allegations to “support a cognizable legal theory.”
Depot, Inc. v. Caring for Montanans, Inc., 915 F.3d 643, 652
(9th Cir. 2019) (citation omitted).

                              III

   Plaintiffs contend that an employee aggrieved by a
union’s breach of its duty of fair representation during
18          BECKINGTON V. AMERICAN AIRLINES

collective bargaining can sue not only the union but also the
employer for “colluding” in the union’s breach. Plaintiffs do
not specify a legal source for their collusion theory of liability
and instead invite us to “judicially create[]” one under the
RLA. We decline the invitation, because plaintiffs’ theory is
fundamentally inconsistent with the complex relationship
among employers, unions, and employees.

                               A

    The duty of fair representation owed by a union to its
constituents, and the union’s concomitant liability for
breaching that duty, derives from the text of the RLA and its
framework for collective bargaining. See Steele, 323 U.S. at
199–207. Nothing in the RLA’s text or framework supports
an expansion of that doctrine to impose liability on an
employer solely for its “collusion” in a union’s breach of
duty.

    To begin with, plaintiffs’ collusion claim seeks to create
liability for “acts not prohibited by the text of the statute.”
Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (internal
alterations omitted) (quoting Cent. Bank of Denver, N.A. v.
First Interstate Bank of Denver, N.A., 511 U.S. 164, 173
(1994)). No provision of the RLA prohibits an employer
from participating (whether “collusively” or otherwise) in a
union’s breach of duty to its members. The RLA does
impose certain duties on employers—for example, requiring
them to refrain from interfering with employees’ freedom to
self-organize and bargain collectively, see 45 U.S.C. § 152,
Third, Fourth; and to “exert every reasonable effort to make
and maintain” a collective bargaining agreement by
“treat[ing] with” the designated union, id. § 152, First,
Ninth—but plaintiffs do not contend that American (or US
             BECKINGTON V. AMERICAN AIRLINES                        19

Airways) violated any of those statutory duties.6 Their claim
instead rests solely on US Airways’s alleged participation in
USAPA’s breach of duty. The text of the RLA, however,
does not “explicitly require[]” employers to avoid this
conduct, which “bodes ill” for plaintiffs’ effort to premise
liability on it. Cent. Bank, 511 U.S. at 175 (quoting Mertens
v. Hewitt Assocs., 508 U.S. 248, 254 (1993)). We cannot
extend liability under a statute beyond the scope of conduct
“prohibited by the [statutory] text.” Jackson v. Birmingham
Bd. of Educ., 544 U.S. 167, 178 n.2 (2005) (quoting Cent.
Bank, 511 U.S. at 173); cf. Steele, 323 U.S. at 202–03
(relying on “the language of the [RLA]” to conclude that
unions have a duty of fair representation).

    Plaintiffs’ collusion theory of liability also lacks support
in the RLA’s collective bargaining framework. As outlined
above, the RLA prescribes a process of collective bargaining
“between the carriers on the one hand and the employees
through their unions on the other.” Street, 367 U.S. at 760
(citation omitted).        This process, like all collective
bargaining, “is structured and regulated on the assumption
that ‘the parties . . . proceed from contrary and to an extent
antagonistic viewpoints and concepts of self-interest.’” Gen.
Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 394
(1982) (internal alteration omitted) (quoting NLRB v. Ins.
Agents’ Int’l Union, 361 U.S. 477, 488 (1960)). On one side
of the bargaining table is the union, which has the “exclusive”
right to represent individual employees and the
“corresponding duty” to exercise that right fairly. Steele,


    6
       The employer must also comply with certain procedural
requirements for collective bargaining, see 45 U.S.C. § 152, Sixth,
Seventh, Eighth, Ninth; id. §§ 155–160, but those procedures are not at
issue here.
20          BECKINGTON V. AMERICAN AIRLINES

323 U.S. at 194, 202. On the other side is the employer,
which is “expected to represent its own interests, not those of
the employees,” Am. Postal Workers Union, Local 6885 v.
Am. Postal Workers Union, 665 F.2d 1096, 1109 (D.C. Cir.
1981), and may in fact “prefer one group of employees over
another,” Rakestraw v. United Airlines, Inc., 981 F.2d 1524,
1536 (7th Cir. 1992). Thus, for this process to work, the
“employer [must] be able to rely on” the union to fulfill its
“duty to discharge [its duty of fair representation] faithfully.”
Bowen v. U.S. Postal Serv., 459 U.S. 212, 226 (1983).

    Nothing about this framework suggests that the RLA
imposes on employers an additional duty to bargain with the
interests of particular employees in mind or to ensure that the
union does so. At the bargaining table, the employer and the
union must approach each other as respectful adversaries.
Although they must find common ground, each comes to the
table with an obligation to its own constituents—the union to
its employee members and the employer to its investors.
Expecting an employer to bargain simultaneously in favor of
its own interests and in favor of the interests of some
employees would force the employer into a game of chess
against itself, pursuing what are often competing and
inconsistent positions. And in doing so, the employer would
also likely end up stepping on the union’s own representative
efforts. An employer has no duty to tell the union how to
fulfill its duty to represent its constituents. And without a
duty, there can be no liability. See Cent. Bank, 511 U.S.
at 175.

    This conclusion, moreover, does not change by invoking
the word “collusion.” Plaintiffs are presumably using that
word in a colloquial sense, as it is not found anywhere in the
RLA. When the word “collusion” is used in the context of
            BECKINGTON V. AMERICAN AIRLINES                  21

imposing liability for violating a federal statute, it generally
acts as a synonym for “conspiracy”—i.e., an illegal
agreement among two or more parties to violate some
statutory duty owed by each party. See, e.g., TSC Indus., Inc.
v. Northway, Inc., 426 U.S. 438, 461–62 (1976) (using
“collusion” in reference to a “conspiratorial manipulation” of
a stock price in violation of the securities laws); FTC v.
Warner Commc’ns Inc., 742 F.2d 1156, 1160 (9th Cir. 1984)
(per curiam) (using “collusion” in reference to a conspiracy
among competitors to restrain trade in violation of the
antitrust laws). But a necessary predicate for imposing
liability in these circumstances—the violation of a
substantive legal duty—is missing here, because an employer
owes no duty to individual employees during collective
bargaining. Thus, whether an employer sits by as the union
neglects some of its constituents, or actively encourages the
union through some amorphous concept of “collusion,” the
employer’s conduct does not violate any duty under the RLA
and thus cannot provide the basis for liability.

    To be sure, courts occasionally use the word “collusion”
or similar language in the context of “hybrid” suits, in which
employees sue both “their employer and their union, alleging
that the employer breached a collective bargaining agreement
and that the union breached its duty of fair representation.”
Kelly v. Burlington N. R.R. Co., 896 F.2d 1194, 1195–96 (9th
Cir. 1990); see also DelCostello v. Int’l Bhd. of Teamsters,
462 U.S. 151, 164–65 (1983) (describing “hybrid” suits under
the Labor Management Relations Act). Plaintiffs argue that
their collusion claim against American is analogous to these
hybrid cases.

    Plaintiffs’ reliance on these cases is misplaced, because
the word “collusion” is being used in these cases not to create
22            BECKINGTON V. AMERICAN AIRLINES

a duty but instead to determine jurisdiction over the claim
against the employer. Recall that, under the RLA, employees
alleging that their employer breached a collective bargaining
agreement must ordinarily submit to mandatory arbitration;
“[f]ederal courts lack subject matter jurisdiction over [these]
disputes.” Konop v. Hawaiian Airlines, Inc., 302 F.3d 868,
881 (9th Cir. 2002).7 That remains true even if the employees
also claim that their union has breached its duty of fair
representation. See Crusos v. United Transp. Union,
786 F.2d 970, 972–73 (9th Cir. 1986). If, however, the
employees allege that their employer and their union “acted
‘in concert’” to discriminate against them, such that
arbitration before a panel of employer and union
representatives would be “absolutely futile,” we have held
that the employees can “circumvent the statutory
administrative remedies” and join their breach-of-contract
claim against the employer with their breach-of-duty claim
against the union in federal court. Bautista v. Pan Am. World
Airlines, Inc., 828 F.2d 546, 551 (9th Cir. 1987) (quoting
Glover v. St. Louis–S.F. Ry. Co., 393 U.S. 324, 331 (1969)).
And in describing the degree of concerted conduct necessary

     7
        We need not—and do not—decide whether our prior
characterization of the arbitration requirement as “jurisdictional” survives
the Supreme Court’s recent cases stressing the distinction between
“jurisdictional” rules and “nonjurisdictional” claim-processing rules. See,
e.g., Union Pac. R.R. Co. v. Bhd. of Locomotive Engineers & Trainmen
Gen. Comm. of Adjustment, 558 U.S. 67, 81–82 (2009). Other circuits
have divided on the resolution of that issue. Compare Oakey v. U.S.
Airways Pilots Disability Income Plan, 723 F.3d 227, 237–38 (D.C. Cir.
2013) (holding that the arbitration requirement is jurisdictional), with
Emswiler v. CSX Transp., Inc., 691 F.3d 782, 789–90 (6th Cir. 2012)
(holding that the arbitration requirement is not jurisdictional). But the
distinction makes no difference here, because the arbitration requirement,
however it is characterized, has no bearing on the substantive duties
prescribed by the RLA.
             BECKINGTON V. AMERICAN AIRLINES                        23

to invoke this jurisdictional exception, we and other courts
have sometimes used the term “collusion.” Croston v.
Burlington N. R.R. Co., 999 F.2d 381, 387 (9th Cir. 1993),
abrogated on other grounds by Norris, 512 U.S. 246; accord
Emswiler v. CSX Transp., Inc., 691 F.3d 782, 791 (6th Cir.
2012); Raus v. Bhd. Ry. Carmen of U.S. & Can., 663 F.2d
791, 798 (8th Cir. 1981); Richins v. S. Pac. Co. (Pac. Lines),
620 F.2d 761, 762 (10th Cir. 1980); Goclowski v. Penn Cent.
Transp. Co., 571 F.2d 747, 761 n.18 (3d Cir. 1977).8

    Although plaintiffs in a hybrid suit may allege collusion
as a basis for jurisdiction, collusion is not the basis for
liability. A hybrid “suit, as a formal matter, comprises two
causes of action”—one against the employer for “breach of
the collective bargaining agreement,” and one against the
union for “breach of the union’s duty of fair representation.”
DelCostello, 462 U.S. at 164. The two claims may be
“inextricably interdependent,” id., but the “origin of the
liability” for each claim is “separate and distinct,” Kaiser v.
Local No. 83, 577 F.2d 642, 645 (9th Cir. 1978); see Czosek
v. O’Mara, 397 U.S. 25, 28–29 (1970). In other words, the
ability to join claims in a hybrid suit for jurisdictional
purposes does not create the “source of plaintiffs’ rights”
underlying those claims. Touche Ross & Co. v. Redington,
442 U.S. 560, 577 (1979).




    8
      The degree of concerted activity may also affect the apportionment
of damages in a hybrid suit. Cf. Czosek v. O’Mara, 397 U.S. 25, 29–30
(1970) (declining to decide whether an employer and union may be jointly
responsible for damages “when a single series of events gives rise to
claims against the employer for breach of contract and against the union
for breach of the duty of fair representation”).
24          BECKINGTON V. AMERICAN AIRLINES

    That dooms plaintiffs’ analogy, because plaintiffs do not
claim that American (or US Airways) breached its own
obligations under a collective bargaining agreement. Instead,
the only identifiable breach in this case is USAPA’s breach
of its duty of fair representation. Without a breach by
American of the collective bargaining agreement, we no
longer have a hybrid suit but instead a pure breach-of-duty
suit that seeks to hold American secondarily liable for
USAPA’s breach. The RLA, however, contains no provision
to support that theory of secondary liability, and we cannot
invent one absent an “expression of congressional direction
to do so.” Cent. Bank, 511 U.S. at 183.

    Finally, imposing liability on an employer in these
circumstances could “frustrate the basic purposes underlying
the duty of fair representation.” Foust, 442 U.S. at 49 n.12
(quoting Vaca, 386 U.S. at 183). Indeed, it may undermine
the union’s incentive to fulfill its duty of fair representation
by allowing the union to escape liability for breaching it. The
union and the employee could, for example, “agree to a
settlement pursuant to which the union would acknowledge
a breach of its duty of fair representation in exchange for the
employee’s undertaking to look to his employer for his entire
recovery,” an unsavory and “unsound[]” result that the
Supreme Court has rejected in similar circumstances. Bowen,
459 U.S. at 227 n.15. And an employer, seeking to limit its
exposure to liability for “collusion” with a union, may feel
compelled to question or even subvert the union’s
representation of its members upon any suspicion that the
union is breaching its duty. See Vaca, 386 U.S. at 191–92.
Not only could this distrust have a “detrimental effect on
labor-management relations,” Carroll v. Bhd. of R.R.
Trainmen, 417 F.2d 1025, 1028 (1st Cir. 1969), but it would
also place employers in the untenable position of possibly
            BECKINGTON V. AMERICAN AIRLINES                  25

violating the RLA’s anti-interference provisions, 45 U.S.C.
§ 152, Fourth; see Ass’n of Flight Attendants v. Horizon Air
Indus., Inc., 976 F.2d 541, 547 (9th Cir. 1992) (considering
“evidence of [the employer’s] attempt to undermine the
union’s bargaining status” in finding that the employer
violated the RLA (internal alterations omitted)).

                               B

    Plaintiffs are not the first to assert a collusion theory of
employer liability. In a handful of cases cited by plaintiffs,
courts have suggested that an employer may be liable under
the RLA for a union’s breach of duty if the employer “acts in
collusion with the union.” United, 756 F.2d at 1283. We,
however, have never adopted this theory of employer liability
and are not persuaded to do so now.

    At the front of this line appears to be the Seventh
Circuit’s decision in United. There, a group of pilots brought
suit against both their union and their employer, United,
alleging that the union “breached its duty of fair
representation” and that “United was a party to that breach.”
Id. at 1281. After concluding that the pilots had failed to
show that the union’s conduct amounted to a breach of duty,
the court turned to the pilots’ claim that United was “a party
to [the union’s] breach.” Id. at 1283. Of course, the court
had just held that there was no breach by the union, which
prompted the court to observe the “conceptual anomaly that
would arise if [an employer] were held liable as a party where
[the union], the principal, had been held not to have violated
its duty.” Id. Nevertheless, the court forged ahead,
proclaiming that “[a]n employer is liable together with the
union for the union’s breach of its [duty of fair
representation] if it acts in collusion with the union.” Id.
26           BECKINGTON V. AMERICAN AIRLINES

(citing Alvey v. Gen. Elec. Co., 622 F.2d 1279, 1290 (7th Cir.
1980)). The court then proceeded to analyze the employees’
“evidence supporting their assertion of collusion,” only to
find evidence of “negotiation” between United and the union,
which it deemed insufficient.9 Id.

    A few district courts have followed United’s lead, setting
up the possibility of a freestanding collusion claim only to
knock it down in the absence of “conduct that rises to the
level of ‘collusion.’” Am. Airlines Flow-Thru Pilots Coal. v.
Allied Pilots Ass’n, 2015 WL 9204282, at *2–3 (N.D. Cal.
Dec. 17, 2015); see In re AMR Corp., 2018 WL 2997104, at
*26–27 (Bankr. S.D.N.Y. June 12, 2018); Cunningham v.
United Airlines, Inc., 2014 WL 441610, at *11 (N.D. Ill. Feb.
4, 2014); Rakestraw v. United Airlines, Inc., 765 F. Supp.
474, 493–94 (N.D. Ill. 1991), aff’d in part, rev’d in part,
981 F.2d 1524; see also Davenport v. Int’l Bhd. of Teamsters,
166 F.3d 356, 361–62 & n.5 (D.C. Cir. 1999) (citing United
as providing a possible “standard for determining whether an
employer can be implicated in a union’s breach of duty” but
declining to adopt it). A few other courts, also relying on
United, have purported to recognize collusion claims but
dismissed them because the union had not breached its duty.
See Flight Attendants in Reunion v. Am. Airlines, Inc.,
813 F.3d 468, 475 (2d Cir. 2016); Bishop v. Air Line Pilots
Ass’n, Int’l, 1998 WL 474076, at *18–19 (N.D. Cal. Aug. 4,
1998); Caudle v. Pan Am. World Airways, Inc., 676 F. Supp.
314, 323 (D.D.C. 1987).

    With respect, we are “convinced the parade is marching
in the wrong direction.” United States v. Smith, 440 F.2d

    9
      This conclusion was arguably an advisory opinion, as there was no
breach by the union to which liability against United could attach.
            BECKINGTON V. AMERICAN AIRLINES                  27

521, 527 (7th Cir. 1971) (Stevens, J., dissenting). The core
proposition in United—that, apart from any breach of
contract, an employer is liable for a union’s breach of duty “if
it acts in collusion with the union,” 756 F.2d at 1283—is
unmoored from the RLA. The only authority cited by the
Seventh Circuit to support this statement was a hybrid case
that included a direct claim against an employer for
“breach[ing] its collective bargaining agreements.” Alvey,
622 F.2d at 1282. That case was inapposite; like the plaintiffs
in this case, the employees in United did “not bring a direct
claim against [their employer].” 756 F.2d at 1283. Indeed,
the United court went out of its way to acknowledge that it
did not have before it the “usual hybrid case” in which the
breach-of-contract claim against the employer is “distinct
from the [breach-of-duty] claim against the union.” Id. That
observation should have ended the discussion for the reasons
we have explained—without a direct claim against the
employer for breaching some contractual (or statutory)
obligation, there is no basis for imposing liability on the
employer.

    Any doubt on this score can be dispelled by the inability
of courts following United to come up with a coherent
standard for identifying conduct that amounts to actionable
collusion. The United court stated that an employer’s mere
“negotiation” with a union is insufficient, id., but that is
hardly a helpful benchmark, as employers are in fact required
to negotiate with unions under the RLA, see 45 U.S.C. § 152,
First, Second, Ninth. And although later courts have insisted
on “something more” than negotiation, Am. Airlines Flow-
Thru Pilots, 2015 WL 9204282, at *3, without a statutory
mooring, any effort to divine what “more” is required quickly
devolves into the sort of “free-wheeling judicial exercise[]”
that we must avoid, Jacksonville Terminal, 394 U.S. at 383.
28          BECKINGTON V. AMERICAN AIRLINES

One court, for example, has suggested relying on “general
principles” about “when it may be appropriate to hold one
entity liable for another’s breach of duty.” Am. Airlines
Flow-Thru Pilots, 2015 WL 9204282, at *3. But without a
statutory hook, we—and more problematically, employers
subject to the RLA and its penalties—would only be able to
guess at what those “general principles” could be. Another
court simply repurposed the standard used for identifying a
breach of duty by a union, requiring a showing of “bad faith
or discriminat[ion]” by the employer that reflects “hostility or
contempt” toward the employees. Rakestraw, 765 F. Supp.
at 493–94. Of course, an employer is not a union, and “the
duties the RLA imposes on [one] cannot be imposed
wholesale on [the other].” Barthelemy, 897 F.2d at 1007.
Although an employer’s discrimination or hostility toward
individual employees during collective bargaining might in
some circumstances violate an existing bargaining agreement
or some other statute, nothing in the RLA supports what
plaintiffs are trying to do here—transform a theory of union
liability into a theory of employer liability.

                              IV

    Under the RLA, employees can hold their union liable for
breaching its duty of fair representation during collective
bargaining. The RLA does not, however, support the
imposition of liability on an employer solely for its
“collusion” in the union’s breach of duty. The district court’s
judgment dismissing plaintiffs’ claim against American is
AFFIRMED.
