     Case: 10-31040     Document: 00511599921         Page: 1     Date Filed: 09/12/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        September 12, 2011

                                       No. 10-31040                        Lyle W. Cayce
                                                                                Clerk

P H I, INCORPORATED,
                                    Plaintiff - Appellee-Cross-Appellant

v.

OFFICE & PROFESSIONAL EMPLOYEES INTERNATIONAL UNION;
LOCAL 108, OFFICE & PROFESSIONAL EMPLOYEES INTERNATIONAL
UNION; CYNTHIA ABER; HOWARD A. ALBECKER; THOMAS R.
ANDARY; ET AL,
                       Defendants - Appellants - Cross - Appellees


                  Appeals from the United States District Court
                      for the Western District of Louisiana
                            Dist. Ct. No. 6:06-cv-01469


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
        A labor dispute between PHI, Incorporated (“PHI”) on the one hand and
certain individual pilot employees (“Individual Pilots”), Office & Professional
Employees International Union (“OPEIU”), and Local 108, Office & Professional
Employees International Union (“Local”) (all collectively called the “Unions”) on
the other hand spawned two appeals. The case giving rise to this appeal came
to be known as the “Bargaining Suit.”


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 10-31040

      The facts are well-known to the parties, so we recite them only briefly
here. PHI is a “carrier” under 45 U.S.C. § 181. OPEIU and its Local 108 are
labor organizations who are certified as the bargaining representatives for PHI’s
pilots. After expiration of the then-existing collective bargaining agreement
(“CBA”), the parties’ negotiations over a new CBA broke down. Following the
Unions’ rejection of arbitration as offered by the National Mediation Board (and
PHI’s silence in response to the offer of arbitration), the parties were released
to “self-help” on August 28, 2006. The Unions engaged in a strike commencing
on September 20, 2006, and ending on November 10, 2006. The district court
wrote several very careful and thorough memorandum opinions over the two
cases (which were ultimately consolidated for trial before the court’s ruling on
dispositive motions obviated the need for a trial). Having considered the district
court’s reasoning, the parties’ briefing, and the arguments of counsel at oral
argument, we turn to the issues in this appeal.
      1. Implementing Better Terms. The Unions contend that PHI violated the
Railway Labor Act (“RLA”) by making unilateral changes during self-help (but
before the strike) to improve pilot pay and making those changes retroactive (by
a short time) to a period before self-help. We agree with the district court that
such conduct by PHI was permissible unless it struck a “fundamental blow” to
the Unions. Trans World Airlines v. IFFA, 489 U.S. 426, 442 (1989). We also
agree that this conduct did not strike such a blow, so we affirm the district
court’s disposition of this matter for substantially the same reasons expressed
in that court’s order. Because of this ruling, we do not reach the question of
whether the pre-self-help rejection of arbitration would bar the Unions from
seeking injunctive or other equitable relief for the alleged bad faith bargaining
by PHI.
      2.    Wage Claims.      The Unions also contend that certain improper
deductions were taken from “last” paychecks mailed by PHI to certain pilots and

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                                    No. 10-31040

appeal the district court’s dismissal of their claims under Louisiana Revised
Statute Section 23:631 providing a remedy for failure to pay final wages owed.
We agree with the district court that these claims are pre-empted because they
require resort to the CBA for resolution and therefore do not reach whether
Section 23.631 offers relief to a pilot who is not discharged and does not resign.1
             3. PHI’s Cross-Appeal. PHI also cross-appeals the district court’s
dismissal of its injunctive claims. PHI challenges the district court’s holding
that PHI’s silence in the face of the National Mediation Board’s offer of
arbitration constituted a rejection that bars PHI’s claims for injunctive or
equitable relief. We need not decide the correctness of this ruling because we
agree with the Unions that PHI did not challenge the alternative bases for the
district court’s ruling, including that PHI waited too long to seek injunctive relief
and that the declaratory relief it seeks would not resolve any live controversy.
Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992) (“We can, of course,
affirm the district court’s judgment on any grounds supported by the record.”).
      AFFIRMED.




      1
          Because of our disposition of these claims, we do not reach PHI’s cross-appeal
regarding penalty wages under Louisiana Revised Statute Section 23.532.

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