                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                  F I L E D
                             REVISED JUNE 1, 2005
                                                                    May 18, 2005
                 IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                Charles R. Fulbruge III
                                                                       Clerk


                                 No. 04-10418




      INTERNATIONAL ASSOCIATION OF
      MACHINISTS AND AEROSPACE WORKERS
      LOCAL LODGE 2121 AFL-CIO,

                                                Plaintiff-Appellee,


           versus


      GOODRICH CORPORATION, formerly
      known as BF Goodrich Company,

                                                Defendant-Appellant.




           Appeal from the United States District Court
                for the Northern District of Texas



Before GARWOOD, JONES, and PRADO, Circuit Judges.

GARWOOD, Circuit Judge:

      Defendant-appellant Goodrich Corporation (Goodrich) appeals

the   district     court’s    grant   of   partial   summary   judgment     to

plaintiff-appellee International Association of Machinists and

Aerospace Workers Local Lodge 2121 AFL-CIO (Union) on count two of

the latter’s three-count complaint in which count the Union sought
an order compelling arbitration of the parties’ dispute over

retiree benefits in their collective bargaining agreement (CBA).

We hold that we lack jurisdiction to review the district court’s

order compelling Goodrich to arbitrate.    We also conclude that we

do not have appellate jurisdiction on the theory that the district

court’s order was void for want of jurisdiction, because we further

conclude that the Union has standing under Section 301(b) of the

Labor Management Relations Act (LMRA), 29 U.S.C. § 185(b), to bring

suit on behalf of the fifty-two retirees whose authorizations for

the Union to represent them in all the matters at issue in the suit

were filed in district court below.

                     Facts and Proceedings Below

       Goodrich merged with Coltec Industries in 1998 and thereby

acquired its manufacturing facility in Euless, Texas.    The Union

represented bargaining-unit aerospace employees at this facility,

and Goodrich assumed Coltec’s responsibilities under the 1996

CBA.    Section 8.37 of the CBA provided that early retirees,

meaning those who elected to retire before turning sixty-five,

were entitled to choose between healthcare coverage under

Coltec’s own company plan or under an HMO.   If the retiree opted

for the Coltec plan, the company would cover the premiums.      If

the retiree opted for the HMO, the company would contribute an

amount equal to the premium for the company plan and the retiree

would have to make up the difference.    If, on the other hand, the



                                  2
HMO cost less than the company plan, the company would pay the

HMO premium and credit the difference between the HMO and the

company plan to the cost of coverage for the retiree’s spouse.

     On April 14, 2000, Goodrich notified the Union that it

intended to close the Euless facility.    Pursuant to 29 U.S.C. §

158(d), the parties then engaged in “effects bargaining,” and, on

August 1, 2000, signed the Plant Closure Agreement (PCA).

Paragraph sixteen of the PCA stated that Goodrich would have the

right to modify the healthcare coverage of early retirees as part

of “reasonable cost containment measures” but only to the extent

that this would not result in any “material change in the level

of benefits.”   The PCA also contained a comprehensive arbitration

clause at paragraph seventeen in which the parties agreed that

“[a]ny future disputes regarding the interpretation, application

or performance of [the PCA] or the CBA shall be resolved by [a

designated arbitrator].”    Goodrich closed the Euless facility on

November 15, 2000.

     In November of 2002, Goodrich informed the Union that,

effective February 1, 2003, it intended to offer a different HMO

option.   Under this new HMO option, the cost of HMO coverage

would for the first time exceed the cost of coverage under the

original Coltec plan.    This meant that retirees with HMO coverage

would for the first time have to pay out-of-pocket for their

healthcare coverage.    The Union contended that this change



                                  3
constituted a material alteration in the level of benefits

guaranteed by the PCA.   Goodrich not only disagreed but also

refused to submit the controversy to arbitration.

     On December 20, 2002, the Union filed a three-count

complaint under Section 301(b) of the LMRA, 29 U.S.C. § 185(b),

and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, seeking

in count one, pursuant to Section 301(b), specific performance of

the healthcare benefits provision of the PCA; in count two, in

the alternative and also under Section 301(b), enforcement of the

PCA’s arbitration clause; and in count three, in addition to the

relief sought under counts one or two, a declaration of the

parties’ rights and duties under the PCA.   Following discovery,

the Union filed its “Motion For Partial Summary Judgment,”

seeking “summary judgment on Count II of its complaint.”    In

support of its motion, the Union filed, inter alia, fifty-two

“retiree representation authorization” forms, each one of which

was signed by a retiree who, by the terms of the authorization,

affirmed that the Union has, and has always had, the authority to

represent him in any claim arising under the CBA and PCA.    Soon

thereafter, Goodrich filed a motion to dismiss counts one and

two, arguing that the Union lacks standing under Section 301 to

represent the retirees because Section 301(b) only authorizes a

labor organization to represent active employees.   Goodrich did

not move to dismiss count three.



                                   4
     On March 8, 2004, the district court granted the Union’s

motion for partial summary judgment and directed the parties to

arbitrate their dispute.   However, rather than enter judgment for

the Union and dismiss counts one and/or three, the district court

instead directed the clerk to “administratively” close the case

and ordered “[i]f the claims in this suit are not resolved in

arbitration, either party may move to reopen the cause, but such

motion must be filed no later than 30 days after the arbitration

process is completed.”   The district court’s ruling is contained

in a 15 page document entitled “Order Granting Plaintiff’s Motion

For Partial Summary Judgment, Compelling Arbitration, And

Administratively Closing Case.”       The district court also

determined as part of its summary judgment analysis that the

Union has standing to bring a Section 301 suit on behalf of

retirees.   Having determined that the Union has standing, the

district court in a separate order on the same day, “ordered

that” Goodrich’s motion to dismiss counts one and two on this

ground “is rendered MOOT.”1

     Goodrich timely filed proper notice of appeal.

                                  I.

     Though not raised by either party, the unusual procedural

posture of this case has led us to question our jurisdiction sua


     1
      There is no document entitled “Judgment” or “Final
Judgment.” There is no award of costs in either of the March 8,
2004 orders, or elsewhere.

                                  5
sponte.   Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987)

(“This Court must examine the basis of its jurisdiction, on its

own motion, if necessary.”).   The issue before us is whether we

can exercise appellate jurisdiction over an order granting

partial summary judgment in which the district court: (1) directs

the parties, pursuant to Section 301(b), to arbitrate their

dispute; (2) administratively closes the case without resolving

count three of the complaint, brought under the Declaratory

Judgment Act, 28 U.S.C. §§ 2201-2202; and (3) expressly retains

jurisdiction to hear any claims not resolved in arbitration.2   In

     2
      The supplemental letter briefs filed at our request
address the possibility that we could simplify this case by
holding that collective bargaining agreements are subject to the
Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 et seq. This is now
a plausible approach because in Circuit City Stores, Inc. v.
Adams, the Supreme Court held that the FAA applies to all
contracts of employment, except those in the interstate
transportation industries. 532 U.S. 105, 109 (2001). At first
blush, this holding implicitly includes collective bargaining
agreements. Nevertheless, most courts, both before and after
Circuit City, adhere to the traditional view that suits arising
under Section 301 and concerning collective bargaining agreements
are outside the scope of the FAA. See, e.g., Int’l Bhd. of Elec.
Workers, Local Union No. 545 v. Hope Elec. Corp., 380 F.3d 1084,
1097 (8th Cir. 2004) (stating that nothing in Circuit City
undermines the Supreme Court’s holding in Textile Workers v.
Lincoln Mills of Ala., 353 U.S. 448, 451-452 (1957), that “§ 301
provides an independent basis for federal jurisdiction to enforce
labor arbitration[.]”); Coca-Cola Bottling Co. of New York, Inc.
v. Soft Drink and Brewery Workers Union Local 812, Int’l Bhd. of
Teamsters, 242 F.3d 52, 53 (2d Cir. 2001) (“We hold that in cases
brought under Section 301...the FAA does not apply.”); Int’l
Chem. Workers Union v. Columbian Chemicals Co., 331 F.3d 491, 494
(5th Cir. 2003) (citing, inter alia, Coca-Coca Bottling Co. and
stating that the “district court appropriately relied only on
[Section 301, as opposed to the FAA] when it confirmed the
arbitration award because this case involves arbitration under a

                                 6
our view, there are two possible bases for jurisdiction.   The

partial summary judgment order was either a final order under 28

U.S.C. § 1291 or it was an appealable interlocutory injunction

under 28 U.S.C. § 1292(a)(1).3   We will address each in turn.

          a.   Final Order



CBA.”); but see Briggs & Stratton Corp. v. Local 232, Int’l
Union, Allied Indus. Workers of America, AFL-CIO, 36 F.3d 712,
715 (7th Cir. 1994) (“As it happens, our circuit is among the
minority that has limited § 1 [of the FAA] to the transportation
industries and therefore applies the Arbitration Act to most
collective bargaining agreements.”) (citing Pietro Scalzitti Co.
v. Operating Engineers, 351 F.2d 576, 579-580 (7th Cir. 1965)).
     We find it unnecessary to revisit our dictum in Columbian
Chemicals, 331 F.3d at 494, that only Section 301, and not the
FAA, applies to collective bargaining agreements because,
regardless of which statute applies, our appellate jurisdiction
depends in the first instance on whether the district court order
was a “final order.” Greentree Financial Corp. - Alabama v.
Randolph, 121 S. Ct. 513, 519 (2000) (holding that subsection
16(a)(3) of the FAA, 9 U.S.C. § 16(a)(3), which states that an
appeal may be taken from a “final decision with respect to an
arbitration that is subject to this title,” uses the term “final
decision” in its well-established sense under 28 U.S.C. § 1291)
(citing Evans v. United States, 504 U.S. 255 (1992)). In light
of our conclusion that the district court’s order is not final
under 28 U.S.C. § 1291 (and, as a result, appellate jurisdiction
does not exist), there is no reason to reach the question of
whether the FAA or traditional section 301 jurisprudence now
controls controversies arising under a collective bargaining
agreement.

     3
      There is no appellate jurisdiction under the collateral
order doctrine over an order staying a case pending arbitration.
Jolley v. Paine Wbber Jackson & Curtis, Inc., 864 F.2d 402, 404
(5th Cir. 1989) (citations omitted) (stating that “an order
granting a stay pending arbitration is not effectively
unreviewable on appeal from a final judgment.”); Mire v. Full
Spectrum Lending, Inc., 389 F.3d 163, 167 (5th Cir. 2004)
(holding that an administrative closure is the functional
equivalent of a stay).

                                 7
     In response to our request for additional briefing on

appellate jurisdiction, Goodrich relies primarily on Goodall-

Sanford, Inc. v. United Textile Workers of America, 353 U.S. 550,

77 S. Ct. 920 (1957), for the proposition that a district court

order compelling arbitration under Section 301 is a final order

for the purposes of appeal.   Goodrich directs our attention in

particular to Goodall-Sanford’s holding:

     “The right enforced here is one arising under § 301(a)
     of the Labor Management Relations Act of 1947.
     Arbitration is not merely a step in judicial
     enforcement of a claim nor auxiliary to a main
     proceeding, but the full relief sought. A decree under
     § 301(a) ordering enforcement of an arbitration
     provision in a collective bargaining agreement is,
     therefore, a ‘final decision’ within the meaning of 28
     U.S.C. § 1291.”

353 U.S. at 551-552, 77 S. Ct. at 921.    In Goodrich’s view,

Goodall-Sanford in effect established a bright-line rule under

which an order to arbitrate is always a final order for the

purposes of 28 U.S.C. § 1291 as long as the order to arbitrate is

issued pursuant to Section 301 of the LMRA.    Because the district

court’s order in the instant case was indeed predicated on

Section 301, Goodrich argues that the order is accordingly a

final, and therefore appealable, order.

     We disagree.   Though we have a copy of neither the complaint

nor the district court’s final judgment in Goodall-Sanford, it is

evident on the face of the published opinions in that case that

Goodall-Sanford is procedurally distinguishable from the case at


                                 8
bar.

       First, in that case the United Textile Workers brought suit

exclusively under Section 301.    United Textile Workers of America

v. Goodall-Sanford, Inc., 129 F. Supp. 859, 860 (S.D. Maine 1955)

(“The plaintiffs have initiated this proceeding under Section 301

of the Labor Management Relations Act of 1947, 29 U.S.C. §

185.”); accord United Textile Workers of America v. Goodall-

Sanford, Inc., 131 F. Supp. 767, 767 (S.D. Maine 1955); Goodall-

Sanford, Inc. v. United Textile Workers of America, 233 F.2d 104,

105 (1st Cir. 1956); 353 U.S. at 551, 77 S. Ct. at 921.    In

addition, the United Textile Workers sought only one form of

relief, either an order to arbitrate or, in the alternative,

damages.    129 F. Supp at 860.

       Like the United Textile Workers, the Union in the instant

case similarly brought two counts under Section 301, pleading

respectively for either specific performance of the CBA or, in

the alternative, for an order compelling arbitration.    Unlike the

United Textile Workers, however, the Union here also included a

third count brought under the Declaratory Judgment Act.    This

third count was pleaded as an independent cause of action, not in

the alternative to any relief under counts one or two.    This is a

critical distinction.    In reaching its conclusion that the

judgment in Goodall-Sanford was a final order under 28 U.S.C. §

1291, the Supreme Court emphasized that the order to arbitrate


                                  9
was the “full relief sought” by the United Textile Workers.   353

U.S. at 551, 77 S. Ct. at 921.   In the instant case, on the other

hand, the Union sought declaratory relief altogether separate

from, and in addition to, the order to arbitrate, meaning that

the order compelling arbitration only granted the Union part of

the relief it sought.

     Furthermore, the decree supporting the order to arbitrate in

Goodall-Sanford was a final order in the sense that it ended the

litigation and left the district court with nothing to do but

execute the judgment.   233 F.2d at 105 (“Thus it seems that the

[district] court did not intend to reserve jurisdiction to

confirm the arbitrator’s decision.” (emphasis added)); accord id.

at 107 (“The decree also provided, as already noted, that the

award was to be ‘final and binding[.]’”).   Given that the

district court rendered a final decision on the merits of the

United Textile Workers’ claims, it is unsurprising that the

Supreme Court treated the lower court’s decree as a final order

under 28 U.S.C. § 1291.   The district court in the instant case,

however, did not render a “final and binding” judgment on the

merits.   Instead, the district court only ruled on the two

Section 301 claims and declined to address the Declaratory

Judgment Act claim.

     An additional procedural distinction is that the district

court closed the instant case administratively rather than render


                                 10
a final judgment.   We have held that such an administrative

closure is the functional equivalent of a stay and a stay will

not support appellate jurisdiction under 28 U.S.C. § 1291.     Mire

v. Full Spectrum Lending, Inc., 389 F.3d 163, 167 (5th Cir. 2004)

(holding, in a case decided under the Federal Arbitration Act

(FAA), 9 U.S.C. § 1 et seq., that an administrative closure is

identical to a stay); Apache Bohai Corp. v. Texaco China, B.V.,

330 F.3d 307, 309 (5th Cir. 2003) (holding, in an FAA case, that

a stay is not equivalent to a dismissal for the purposes of 28

U.S.C. § 1291).

     Finally, also unlike Goodall-Sanford, the district court in

the instant case expressly retained jurisdiction to entertain any

claims the arbitration fails to resolve.   This reservation of

jurisdiction for the purpose of hearing substantive claims also

precludes appellate jurisdiction because an order framed this way

is not a final judgment.   See, e.g., Mire; Apache Bohai Corp.

     Thus, when the full procedural history of Goodall-Sanford is

explicated, it becomes apparent that the Supreme Court’s decision

was based on the unambiguous finality of the underlying district

court judgment.   Where, however, as in the instant case, none of

the salient indicia of finality are present, Goodall-Sanford does

not control.   We conclude, therefore, that the order directing

the Union and Goodrich to arbitrate their dispute cannot be

considered a final order for the purposes of 28 U.S.C. § 1291


                                11
because the district court: (1) declined to resolve all of the

Union’s claims; (2) only closed the case administratively rather

than entering a final judgment; and (3) reserved jurisdiction to

hear substantive claims not resolved by the arbitration.

Accordingly, we lack jurisdiction under 28 U.S.C. § 1291 to

entertain Goodrich’s appeal.

            b.    Appealable Interlocutory Order

         We also do not have jurisdiction under 28 U.S.C. §

1292(a)(1) because the district court order staying the case and

ordering arbitration is not an interlocutory injunction.      To

understand why, it is helpful to review how appellate courts have

traditionally analyzed a decision to grant or deny a stay.

     Under the former Enelow-Ettelson doctrine,4 appellate

jurisdiction over stays under 28 U.S.C. § 1292(a)(1) only arose

when a district court granted or denied a stay of a suit at law

on the basis of a defense or counterclaim that sounded in equity.

Gulfstream Aerospace Corp. v. Mayacamas Corp., 108 S. Ct. 1133,

1139 (1988).     Appellate jurisdiction would not arise when the

decision to grant or deny a stay was in a suit at law and the

decision was predicated on legal considerations nor when, on the

other hand, the suit was in equity and the decision was

predicated on equitable considerations.     Id.    In such cases, the


     4
      So named because of two seminal cases, Enelow v. New York
Life Ins. Co., 293 U.S. 379 (1935), and Ettelson v. Metropolitan
Life Ins. Co., 317 U.S. 188 (1942).

                                  12
stay was not considered an interlocutory injunction, or denial

thereof, but instead simply a decision by a judge or chancellor

to manage his own docket.   The historical premise behind the

Enelow-Ettelson doctrine was the fact that, traditionally, a

judge at law and a chancellor at equity were two different people

with distinct purviews, and this esoteric distinction persisted

even after the powers of law and equity were united in the single

person of a federal district judge.    In modern times, the

distinctive feature of the Enelow-Ettelson doctrine was its

stubborn preservation of this distinction between law and equity

long after the Federal Rules of Civil procedure had formally

abolished it.   See, e.g., Houston General Ins. Co. v. Realex

Group N.V., 776 F.2d 514, 515 (5th Cir. 1985) (citing Tenneco

Resins, Inc. v. Davy Int’l, AG, 770 F.2d 416, 418-419 (5th Cir.

1985)).   In Gulfstream, the Supreme Court overruled the

“Byzantine” Enelow-Ettelson doctrine, holding that “orders

granting or denying stays of ‘legal’ proceedings on ‘equitable’

grounds are not automatically appealable under § 1292(a)(1).”

485 U.S. at 287, 108 S. Ct. at 1142.    In eliminating the Ennelow-

Ettelson exception, the Supreme Court disposed of a doctrine

“deficient in utility and sense” and set forth a uniform standard

establishing the non-appealability of stays.    485 U.S. at 282,

108 S. Ct. at 1140.

     Soon thereafter, we applied Gulfstream to arbitration in


                                13
Jolley v. Paine Weber Jackson & Curtis, Inc., holding that “an

order denying [or granting] a stay pending arbitration is not

appealable under § 1292(a)(1).”    864 F.2d 402, 403 (5th Cir.

1989) (citation omitted) supplemented at 867 F.2d 891 (5th Cir.

1989); Turboff v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,

867 F.2d 1518, 1520 (5th Cir. 1989) (stating that there is no

appellate jurisdiction over orders granting or denying stays

pending arbitration).   Consequently, under Gulfstream and its

progeny, the district court’s order staying the instant case and

ordering arbitration was not in essence an affirmative injunction

to arbitrate.   It was instead simply an administrative decision

by the district court to manage its docket by declining to hear

the case until the parties made a good-faith effort to fulfill

their mutual, bargained-for expectation that disputes under the

CBA or PCA would be heard, at least initially, in arbitration.

Accordingly, we do not have appellate jurisdiction over the order

under 28 U.S.C. § 1292(a)(1).

                                  II.

     Arguably, however, even though we do not have appellate

jurisdiction under section 1291, because the order is not final

or within the collateral order doctrine, and is not an appealable

order under section 1292(a)(1), or under the FAA, we would still

have appellate jurisdiction if the district court wholly lacked

jurisdiction so that its order was a complete nullity.    See,


                                  14
e.g., Shepherd v. Int’l Paper Co., 372 F.3d 326, 328-29 (5th Cir.

2004).   A federal court is without jurisdiction if the only

complaining party lacks standing.    See Lujan v. Defenders of

Wildlife, 504 U.S. 553 (1992); Florida Dept. of Ins. v. Chase

Bank of Texas, 274 F.3d 924, 928-29 (5th Cir. 2001) (“. . .

standing is a component of Article III’s case or controversy

requirement, and is jurisdictional in nature”).   The Union “as

the party invoking federal jurisdiction, bears the burden of

establishing the three elements of Article III standing.”      Grant

v. Gilbert, 324 F.3d 383, 387 (5th Cir. 2003) (citing Lujan, 504

U.S. at 561).   As we stated in Florida Dept. of Ins. at 929:

     “As articulated by the Supreme Court in Lujan v.
     Defenders of Wildlife, the elements of constitutional
     standing are: (1) that the plaintiff have suffered an
     ‘injury in fact-an invasion of a legally protected
     interest which is (a) concrete and particularized, and
     (b) actual or imminent”; (2) that there is ‘a causal
     connection between the injury and the conduct
     complained of”; and (3) that the injury is likely to be
     redressed by a favorable decision. Under Lujan, courts
     must carefully examine whose injury is at issue, and to
     whom the recovery will go. If the plaintiff is not the
     party who sustained the concrete and particularized
     injury for which a remedy is sought, and is not the
     assignee or designated representative of the injured
     party, then it does not have standing.” (footnotes
     omitted).

     Goodrich in effect contends as a matter of statutory

construction that the Union could not have sustained an injury in

fact because it is only authorized by statute to bring suit on

behalf of active employees, meaning that unions are, at least in



                                15
a technical legal sense, incapable of suffering an injury when

company action redounds only to the detriment of retirees.    In

support of this contention, Goodrich repeatedly emphasizes the

plain language of Section 301(b): “Any [] labor organization may

sue or be sued as an entity and in behalf of the employees whom

it represents in the courts of the United States.”

     Goodrich’s position is not without considerable force.    The

statutory definition of employee does not include retired former

employees.5   In addition, the Supreme Court has held that

retirees are not “employees” for the purposes of the National

Labor Relations Act (NLRA), 29 U.S.C. §§ 151-169 and,

consequently, the issue of benefits extended to current retirees

is not a subject of mandatory bargaining under the NLRA.     Allied

Chemical & Alkali Workers, Local Union No. 1 v. Pittsburgh Plate

Glass, 404 U.S. 157, 172, 92 S. Ct. 383, 394 (1971) (“In this

cause, in addition to holding that pensioners are not ‘employees’

within the meaning of the collective-bargaining obligations of

the [NLRA], we hold that they were not and could not be


     5
      “The term ‘employee’ shall include any employee, and shall
not be limited to the employees of a particular employer...and
shall include any individual whose work has ceased as a
consequence of, or in connection with, any current labor dispute
or because of any unfair labor practice...” 29 U.S.C. § 152(3).
     Though the definitions supplied at 29 U.S.C. § 152 expressly
state that they apply only to the subchapter of the Labor
Management Relations Act entitled the National Labor Relations
Act, 29 U.S.C. §§ 151-169, which does not include Section 301(b),
those same definitions have been made applicable to the entire
LMRA by 29 U.S.C § 142(3).

                                 16
‘employees’ included in the bargaining unit.”).   If, as

Pittsburgh Plate Glass establishes, the statutory definition of

the term “employee,” found at 29 U.S.C. § 152(3), is too narrow

to allow the Union to compel Goodrich to engage in good-faith

mandatory bargaining over changes to the benefits of retirees,

then it must also be true that the Union cannot hail Goodrich

into court on the strength of its claim that the term “employees”

in Section 301(b), which is also defined at 29 U.S.C. § 152(3),

can be broadly read to include retirees.

     This conclusion finds support in our decision in Meza v.

Gen. Battery Corp., 908 F.2d 1262, 1270 (5th Cir. 1990), in which

we held that a Section 301 suit brought by a union purportedly on

behalf of all retirees was not res judicata as to a retiree who

did not know about, much less participate in, the union’s suit.

We reasoned, based on Pittsburgh Plate Glass and many other

cases, that a labor organization does not have the statutory

authority to act as the exclusive and binding agent of a retiree

in the same way that a union can so act on behalf of its active

bargaining-unit members.   Id. at 1268-1272.   See also Rossetto v.

Pabst Brewing Co., Inc., 128 F.3d 538, 541 (7th Cir. 1998); Merk

v. Jewel Cos., 848 F.2d 761, 766 (7th Cir. 1988).   On the other

hand, the Third Circuit in United Steelworkers v. Canron, 580

F.2d 77, 81 (3d Cir. 1978), held that in a section 301 suit “the

plaintiff-union has standing to represent the retirees in seeking


                                17
arbitration under its labor contract with” the defendant-

employer.

     However, we need not here ultimately resolve whether Canron

should be followed or is consistent with the statutory scheme or

our Meza decision.   We hold that the Union has standing under

section 301 to represent the fifty-two retirees whose express

authorizations of the Union to do so were filed with the district

court below, and that accordingly the district court was not so

lacking in jurisdiction that its challenged order becomes

appealable on that basis.   Cf. Kelly v. Moore, 376 F.3d 481, 484-

85 (5th Cir. 2004) (order granting new trial erroneous but not

void, and hence interlocutory and not appealable).

     Our conclusion as to the Union’s standing to represent those

authorizing retirees does not follow from a single decisive

principle.   It is instead the sum of several considerations

which, in our view, tip the scale in favor of standing to

represent those retirees.

     First, Goodrich’s emphasis on the plain language of Section

301 is unavailing in this context.   Though it is true as a

general principle that plain language controls statutory

interpretation, see, e.g., Barnhart v. Sigmon Coal Co., 534 U.S.

438, 450 (2002), the Supreme Court has carved out an exception in

the case of Section 301 and retirees.   The Court has read Section

301 expansively to include a right of action by retirees against


                                18
their former employers even though the plain language of Section

301 only creates a right of action for unions against employers

and union members against their unions.    Pittsburgh Plate Glass,

92 S. Ct. at 399 n.20 (“The retiree [has] a federal remedy under

§ 301 of the [LMRA] for breach of contract if his benefits were

unilaterally changed.”) (citations omitted)).   Indeed, neither

party disputes that the retirees have cognizable claims against

Goodrich under the CBA and PCA.    Therefore, given that the fifty-

two retirees in this case have viable causes of action against

Goodrich despite the plain language of Section 301, we do not

consider that same plain language to be an impediment to suit by

the Union when the Union has the express consent of the retirees

to represent them therein.

     Next, cases like Pittsburgh Plate Glass and Meza, which

restricted the scope of a union’s authority to act as the binding

bargaining agent of retirees, stand for the proposition that

unions cannot overreach and arrogate to themselves power that

Congress has not clearly given them.    See also Int’l Union, UAW

v. Yard-Man, Inc., 716 F.2d 1476, 1484-1485 (6th Cir. 1983)

(holding that retirees are entitled to settle a claim against the

company arising under a CBA even when the retirees’ former union

has a suit pending on the same issue), cert. denied 465 U.S. 1007

(1984).   We find that this concern is not implicated by holding

that unions may bring a section 301 suit on behalf of retirees


                                  19
who have authorized the union to do so on their behalf.    Nothing

in our decision today would authorize a union to sue on behalf of

individual retirees but against their wishes.     See Anderson v.

Alpha Portland Indus., 752 F.2d 1293, 1296 (8th Cir.) (en banc)

(stating that the law does not “establish that a union which does

bargain for its retirees becomes their exclusive representative

and that the retirees then must proceed through the union.”)

(emphasis in original), cert. denied 471 U.S. 1102 (1985); Merk,

848 F.2d at 766 (“[U]nions may bargain on behalf of retirees if

the employer is willing, although the retirees need not accept

the offer of representation.   Former employees might choose the

union as their agent for purposes of implementing or compromising

claims arising under a [CBA].”).     Nor have we held that a union

may sue on behalf of a retiree who has not consented.6

     Finally, Section 301 is not simply a procedural statute but


     6
      The Seventh Circuit specifically addressed the question of
union standing under Section 301 to represent retirees and
concluded, that there is no standing unless the retirees consent
to representation. Rossetto, 128 F.3d at 541. The Rossetto
court went one step further, however, and held that a union’s
standing in federal court also depends on whether the company, in
addition to the retirees, has consented to union representation
of the consenting retirees. Id. The Rossetto court cites no
authority for the proposition that a plaintiff’s Article III
standing depends on consent of the defendant, and we decline to
follow that aspect of the opinion’s holding. Given that a
defendant cannot give standing where is it does not properly
exist, Nat’l Org. for Women v. Scheidler, 510 U.S. 249, 255
(1994) (stating that standing is jurisdictional and, hence, not
subject to waiver), it follows a fortiori that a defendant cannot
take away standing where it does properly exist.

                                20
a source of substantive labor law.   Textile Workers Union of

America v. Lincoln Mills of Ala., 77 S. Ct. 912, 917-918 (1957).

The Supreme Court has instructed the courts to fashion this

common law with an eye toward the overarching themes of federal

labor policy.   Id. at 918 (“We conclude that the substantive law

to apply in suits under § 301(a) is federal law, which the courts

must fashion from the policy of our national labor laws.”).     Our

holding today is consistent with that policy.   Granting the Union

standing to represent the consenting fifty-two retirees provides

a convenient vehicle for litigating their collective claim that

Goodrich has failed to honor contractual rights that have vested

under the CBA and PCA.   Furthermore, finding standing recognizes

that the Union, as both signatory to the CBA and PCA and former

exclusive agent of retirees, has a legitimate interest in

honoring the request of the retirees that it represent them to

enforce their rights that it and Goodrich provided for in the CBA

and PCA.   These interests, while not dispositive, lend marginal

additional support to our conclusion that granting limited

standing to the Union to represent the consenting fifty-two

retirees is consistent with national labor policy.

                            Conclusion

     For the foregoing reasons, we conclude that we lack

jurisdiction to review the district court’s order.   Accordingly,

the appeal is


                                21
DISMISSED FOR WANT OF APPELLATE JURISDICTION.




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