                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                        REVISED MARCH 29, 2007
                                                                       FILED
                IN THE UNITED STATES COURT OF APPEALS                March 7, 2007
                         FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                         _____________________                      Clerk

                              No. 05-20791
                         _____________________

MARILYN MITCHELL; KEVIN BALE;
SUSAN BOORSTEIN,

                                                    Plaintiffs-Appellants
       v.

CONTINENTAL AIRLINES, INC.;
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS,
                                                     Defendants-Appellees

                       ----------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                       ----------------------
Before KING, WIENER, and CLEMENT, Circuit Judges.

WIENER, Circuit Judge:

       Plaintiffs-Appellants      Marilyn    Mitchell,   Kevin       Bale,         and

Susan Boorstein appeal the district court’s grant of summary

judgment, dismissing without prejudice their petition to vacate

an arbitration award under the Railway Labor Act (“RLA”).1                         For

the following reasons, we affirm the district court, concluding

that    Boorstein   failed   to    exhaust    her   contractually-created

procedural remedies and that Mitchell and Bale lack standing to

bring a petition under the RLA.

1
    45 U.S.C. §§ 151 et seq.
                           I. FACTS AND PROCEEDINGS

A.   Background

     The plaintiffs are flight attendants for Defendant-Appellee

Continental    Airlines,       Inc.    (“Continental”).                As    such,   their

employment    is    governed    by     a    collective         bargaining      agreement

(“CBA”) between Continental and Defendant-Appellee International

Association of Machinists and Aerospace Workers (“IAM”).                         The CBA

provides a system of procedures for the resolution of employment

grievances, ultimately requiring that unresolved grievances be

resolved by final and binding arbitration before a Systems Board

of Adjustment (“the Board”), as is permitted by the RLA.                                In

addition, the CBA specifies that the IAM shall serve as the

exclusive bargaining representative for all flight attendants.

     Under    the    CBA,     Continental’s             flight      attendants       accrue

various types of seniority, each of which is classified as either

competitive or non-competitive.                 Continental is required to post

competitive seniority dates biennially.                       Flight attendants have

thirty days after each such posting to challenge the accuracy.

Competitive    seniority       is     not       at    issue    in     this   case;    non-

competitive seniority is, though.

     Continental      is     not      required          to     post     non-competitive

seniority    dates    for    its    flight           attendants.       Non-competitive

rankings include pay seniority, vacation seniority, and jump-seat


                                            2
and pass-riding seniority.              Instead of posting lists of non-

competitive    seniority      periodically,       they    are   communicated    in

other, more discrete ways.

B.    Boorstein

      Boorstein    had      been     employed    as   a     Continental   flight

attendant since November 1968, when in 1996, she learned that her

jump-seat seniority date had been changed from her date of hire

to a subsequent date in 1971.            She also learned that her company

service date had been unfavorably changed when, on her thirtieth

anniversary with Continental, she received a cake of the type

customarily given to flight attendants with only twenty years of

service.      Boorstein alleges that, after she inquired into the

unfavorable adjustments, her seniority status was again adjusted

adversely.     Boorstein never filed a grievance against Continental

and   never   sought   to     resolve    her    dispute    through   arbitration

before the Board.

C.    Mitchell

      Mitchell began her employment with Continental in January

1969 and began flying the next month.              In 1996, Mitchell’s pass-

riding   seniority     date    was   retroactively        adjusted   without   her

knowledge as a result of company-offered leave that she had taken




                                         3
years earlier.2       The next year, Mitchell also discovered that her

vacation seniority date was different and less advantageous than

previously     indicated.          Throughout        1997     and       1998,    Mitchell

repeatedly     contacted        and     questioned         Continental           personnel

regarding the accuracy of her seniority dates.                         She alleges that

her questioning led to even greater unfavorable adjustments.

     Unable    to    resolve     her    inquiries      satisfactorily,           Mitchell

contacted     IAM    in   1999.         After       prolonged       discussions,      IAM

eventually     permitted        Mitchell       to   file     a    grievance       against

Continental,    in    which     she    contended      that       her    non-competitive

seniority     dates       had    been      subjected         to        unfair,    adverse

adjustments.        That was in May 2000.              Her grievance was denied

following a step-one and a step-two hearing.

D.   Bale

     Bale joined Continental as a flight attendant in July 1987.

In 1997, he discovered that his vacation seniority date was less

advantageous than his records indicated it should have been.



2
 Company-offered leave is optional leave offered by Continental to
its flight attendants.    It is offered to those attendants with
higher seniority in lieu of leave being forced on junior flight
attendants (i.e., furlough status), thereby alleviating the effect
of overstaffing and base closings.       This is advantageous to
Continental, because its payroll expense is reduced by having lower
paid flight attendants on duty, as Continental does not have to pay
its senior flight attendants who are on company-offered leave and
does not have to pay furlough pay to junior flight attendants who
would otherwise be on furlough status.

                                           4
Bale periodically inquired into the discrepancy between 1998 and

2000.      He was eventually informed that his vacation seniority

date had been adjusted for company-offered leaves that he had

taken between 1991 and 1995.

      In    August       2000,    Bale      filed     a     grievance,    complaining      of

unfair and unequal adjustment of seniority.                        In June 2001, Bale

filed a second grievance, complaining that Continental violated

the   CBA    by    including          managerial       employees    at     the     level   of

director or above in the System Seniority List.                            Both of these

grievances        were    denied       following       a    step-one     and   a     step-two

hearing.

E.    Involvement of IAM

      A stamped, and then signed and dated notice appears in the

upper,      right-hand         corner       of       both     Mitchell’s       and     Bales’

grievances,       in     which       each   attendant        acknowledged:       “I   hereby

authorize the International Association of Machinists, with full

power of attorney, to represent me in all stages of the Grievance

Procedure in the presenting and settling of this grievance.”

After      Mitchell’s          and     Bale’s        grievances        were      denied    by

Continental, they were referred to arbitration before the Board,

which    consisted        of     one    IAM      representative,         one   Continental

representative, and one neutral chairperson.                             As the IAM had

previously learned that several other flight attendants’ non-


                                                 5
competitive seniority dates had been unfavorably adjusted without

their knowledge, it presented with those of Mitchell and Bale the

grievances of four similarly-situated flight attendants in a two-

day arbitration hearing before the Board in February 2002.

     Prior to this hearing being held, Mitchell and Bale had

received numerous notices of the hearing dates and locations, the

hearing    date    having   been    postponed         and     rescheduled         numerous

times.      In    addition,   both    Mitchell          and    Bale     met   with       IAM

representatives       in    2001,    and       Mitchell        attended       a    second

preparatory meeting in February 2002.

     When the hearing was finally convened in February 2002,

Mitchell     participated     in     person       and       Bale    participated         by

telephone.        Both   Mitchell    and       Bale   allege       that,   immediately

before    the    hearing,   IAM    informed      them    that      it   would      not    be

representing them, so they would have to represent themselves.

Both claim that they thus were “ambushed” into putting on their

own, admittedly deficient, pro se case.

     In May 2002, the Board rendered its arbitral decision and

award (“the Award”).          The Board first decided that it lacked

jurisdiction over matters arising before the date that the CBA

was formed, April 1, 2000.            It then concluded that Continental

had failed to maintain “a careful record of when an individual

returned to work from a leave of absence for purposes of his or


                                           6
her seniority” and that “[a]djustments [were] made for periods of

inactivity taken by some individuals when they returned to work,

but not for others.”        After acknowledging Continental’s failure

to maintain careful records and declaring that it was unable to

“examine all of the individual employment records of the [more

than 9,000] flight attendants employed by Continental,” the Board

prescribed      the    following    procedure          to   be   used   by     flight

attendants retrospectively challenging their seniority dates and

for Continental’s use in making future adjustments:

     [F]or retroactive adjustments that occurred within the
     last two years, flight attendants may protest such
     adjustments in their seniority dates which occurred
     more than a year after the event which triggered the
     adjustment. They may do so within 30 days of the date
     on which this award is rendered, and the parties shall
     have the joint obligation of informing all flight
     attendants of this decision. . . . For the future, the
     company shall have a period of one year from the date
     on which they first were notified by the Company . . .
     to file a protest.

     In the Award, the Board also (1) decided that its ruling

would   apply    to    Bale’s   grievance        and    provided    the      IAM   and

Continental     an    opportunity   to   resolve        his   grievance      amicably

based on the rules set forth in the Award; (2) denied as untimely

those   grievances      relating    to       individuals      holding     managerial

positions at the director level and higher as untimely; and (3)

denied Mitchell’s grievances “because the adjustments were made

contemporaneously and in order to retain seniority one must be on


                                         7
the list of Company employees and to accrue seniority one must be

in the active service of the Company and be receiving pay for

such service.”          Finally, the Board retained jurisdiction over

“all     disputes      arising     based        upon    this     decision    including

questions regarding remedy.”

       Continental and IAM then issued a joint notice to all flight

attendants, informing them of the existence of the Award, its

terms and conditions, and the deadline for filing claims pursuant

to   the   Award.         In   October    of    that    year,    after   negotiations

between    Bale     and    Continental         proved   unsuccessful,        the   Board

issued     a   second     arbitral     award,      finding      that   the   seniority

adjustments      of    which    Bale     complained      “were    actually     made   in

September 1998, outside the timeframe for claims that can be

submitted      under    the    [Award].”         The    Board,    therefore,       denied

Bale’s grievance.

       In May 2004, the plaintiffs filed a petition for review of

the Award in the Southern District of Florida, requesting that

the district court (1) enjoin Continental from implementing the

Award, (2) vacate the Award, and (3) remand the matter to the

Board.     The plaintiffs contended that the Award failed to comply

with and conform to the requirements of the RLA and that it

violated their constitutional right to due process.                          In August

2004, the Southern District of Florida transferred the action to


                                            8
the District Court for the Southern District of Texas, from which

this appeal is taken.

     In August 2005, the district court, treating the plaintiffs’

petition for review and defendants’ opposition to it as cross-

motions for summary judgment, denied the plaintiffs’ petition for

review and entered judgment in favor of Continental and IAM,

concluding that the plaintiffs’ failure to allege a breach of

IAM’s duty of fair representation left them without standing.          In

addition,    the      district   court   dismissed   the     plaintiffs’

constitutional due process claims, ruling that the plaintiffs had

failed to state a claim for which relief could be granted.             The

plaintiffs timely filed a notice of appeal.

                          II. LAW AND ANALYSIS

A.   Standard of Review

     We review a grant of summary judgment de novo, applying the

same standard as the district court.3        The RLA regulates labor

disputes    between    airline   carriers   and   their    employees   by

establishing mandatory procedures for the resolution of disputes,

both major and minor, to prevent the commercial interruptions

that might otherwise result.4


3
  Riverwood Int’l Corp. v. Employers Ins. of Wausau, 420 F.3d 378,
382 (5th Cir. 2005).
4
  Cont’l Airlines, Inc. v. Int’l Bhd. Of Teamsters, 391 F.3d 613,
616-17 (5th Cir. 2004).

                                    9
          The   RLA    distinguishes     disputes   by    whether      they    seek   to

create contractual rights or to enforce them.5                       A major dispute

concerns the formation of a CBA, which arises when a CBA is not

in place or when a party seeks to change the terms of a CBA.6                          A

minor       dispute        concerns   grievances    or    the    interpretation       or

application           of   agreements   covering    rates       of   pay,   rules,    or

working conditions.7             Pursuant to the RLA, minor disputes must be

resolved        through      a   compulsory,    binding    arbitration        procedure

before an adjustment board.                These arbitral procedures may be

established by the union and the employer through their CBA.8

None questions that the disputes underlying this appeal are minor

ones under the RLA.

          Prior to filing a RLA lawsuit in federal court, employees

claiming a violation of their CBA-established rights ordinarily

must first exhaust the non-judicial remedies specified in their

CBA.9       An employee may, however, bring suit without previously

exhausting these remedies if (1) the union wrongfully refuses to


5
  Consol. Rail Corp. v. Ry. Labor Executives’ Ass’n, 491 U.S. 299,
302 (1989).
6
    Id.
7
    Id. at 303.
8
    Id.
9
  Morales v. S. Pac. Transp. Co., 894 F.2d 743, 745 (5th Cir.
1990).

                                           10
process the employee’s grievance, thereby violating its duty of

fair representation; (2) the employer’s conduct amounts to a

repudiation of the specified contractual, remedial procedures; or

(3) exhaustion of the contractual remedies would be futile.10

       When an RLA lawsuit arising from a minor dispute is properly

before us, we will only review an arbitral decision and award on

one of three narrow and exclusive grounds: (1) whether the Board

failed to comply with the RLA’s requirements; (2) whether the

Board failed to confine itself to matters within the scope of its

jurisdiction; and (3) whether the Board’s decision was the result

of fraud or corruption.11     We have recognized a fourth, implied

ground for review: whether an award was rendered in violation of

a party’s due process rights.12     Absent one of these grounds, an

adjustment board’s findings and orders are binding and conclusive

as to the parties.13      Thus, unless we find that an adjustment

board’s arbitral award is “wholly baseless and completely without




10
  Rabalais v. Dresser Indus., Inc., 566 F.2d 518, 519 (5th Cir.
1978).
11
     Cont’l Airlines, 391 F.3d at 617.
12
  Bhd. of Locomotive Eng’rs v. St. Louis Sw. Ry. Co., 757 F.2d 656,
661 (5th Cir. 1985).
13
  E. Airlines, Inc. v. Transp. Workers Union, 580 F.2d 169, 172
(5th Cir. 1978).

                                  11
reason,” we must affirm the Board’s decision.14

B.     Merits

       On appeal, the plaintiffs contend that the district court

erroneously granted summary judgment in favor of Continental and

IAM (collectively, “the defendants”), because (1) the plaintiffs

do have standing to bring an action under the RLA; (2) the

plaintiffs were unconstitutionally denied due process, as they

were not provided sufficient notice, and the Board failed to

maintain a record of the arbitral hearing; and (3) the Award was

“wholly baseless and completely without reason.”                  The plaintiffs

explicitly disavow any claim that the IAM breached its duty of

fair representation.

       In contrast, the defendants urge us to affirm the district

court, because (1) Boorstein failed to exhaust the requisite

arbitral remedies under the CBA; (2) all of the plaintiffs lack

standing      to      bring    an     RLA      action;   (3)    the   plaintiffs’

constitutional due-process rights were not violated; and (4) the

Award was not “wholly baseless and completely without reason.”

       i.     Boorstein’s Claim

       On appeal, Continental argues that Boorstein’s claim is not

viable      because    of     her    failure     to   exhaust   her   non-judicial

remedies under the CBA.             We agree.


14
     Id.

                                            12
       It is undisputed that Boorstein not only failed to file a

grievance     regarding   the   unfavorable          adjustment    of     her   non-

competitive seniority, but, despite receiving notice of her right

to do so, she failed to request review and correction of any

adjustment within the thirty-day period made available to all

flight attendants by the Board’s award, all in derogation of the

CBA.     Boorstein does not offer, and our own review fails to

reveal, any reason why her failure to pursue the appropriate

remedies under the CBA should be excused.

       In addition, the Board was not required to provide Boorstein

with personal notice of the February 2002 hearing.                      As a flight

attendant    and   thus   a   subscriber      to     the   CBA,   Boorstein       had

authorized the IAM to act exclusively on her behalf.                      Thus, as

the district court correctly recognized, notice to the IAM ——

Boorstein’s    representative     ——    constituted          adequate    notice    to

Boorstein and all similarly-situated employees who had not filed

individual     grievances.15      We        affirm     the     district     court’s

dismissal of Boorstein’s claims.

       ii.   Mitchell’s and Bale’s Claims

       In McNair v. United States Postal Service, we held that,




15
  See Bhd. of Ry., Airline, & S.S. Clerks v. St. Louis S.W. Ry.
Co., 676 F.2d 132, 136 (5th Cir. 1982).

                                       13
under the Labor Management Relations Act (“LMRA”),16 which was

made applicable by the Postal Reorganization Act17:

       When a collective bargaining agreement establishes a
       mandatory, binding grievance procedure and gives the
       union the exclusive right to pursue claims on behalf of
       aggrieved employees, the results obtained by the union
       are normally conclusive of the employees’ rights under
       the agreement.     This means, of course, that an
       aggrieved worker whose employment is governed by such
       an agreement normally lacks standing independently . .
       . to attack in court the results of the grievance
       process. . . .

            These rules are not, however, without exception.
       It is established that, if the union has breached its
       duty of fair representation, by arbitrarily refusing to
       pursue a claim through the grievance process or by
       doing so in a perfunctory or otherwise inadequate
       manner, an aggrieved employee is not foreclosed by the
       results of the grievance process.      He may sue his
       employer or his union or both but, in order to recover,
       he must prove that the union breached its duty of fair
       representation and that the employer breached the
       collective bargaining agreement.18

As we explained in Acuff v. United Papermakers & Paperworkers,

which    was   decided   under   the     National   Labor   Relations   Act

(“NLRA”),19 this reality is necessary to effectuate the purposes

behind federal labor statutes, which require that the interests

of particular individuals be subordinated to the interests of the



16
     29 U.S.C. §§ 141 et seq.
17
     39 U.S.C. § 1209.
18
     768 F.2d 730, 735 (5th Cir. 1985).
19
     29 U.S.C. §§ 151 et seq.

                                       14
group at the contract-negotiation stage and                           beyond.20      If an

employee could compel arbitration of a grievance without his

union’s     blessings,        a     CBA’s     contractual        conflict-resolution

procedures would be substantially undermined, “thus destroying

the employer’s confidence in the union’s authority and returning

the    individual     grievant       to     the    vagaries      of    independent        and

unsystematic        negotiation.”21          The     same     can      be   said    of     an

employee’s ability to seek judicial review of an arbitral award,

after being abandoned by his union.22

       Here, the plaintiffs recognize our decisions in McNair and

Acuff    and   do    not     dispute      their     holdings,         agreeing     that    an

individual employee lacks standing to seek review of an arbitral

award under the LMRA and NLRA, except that an employee may bring

a claim that the union breached its duty of fair representation.

Rather, the plaintiffs contend that our holdings in McNair and

Acuff are limited to LMRA and NLRA claims; so they argue that

they are not barred from bringing claims under the RLA.                                   The

plaintiffs, however, offer no support or reasoning for why claims

grounded in the RLA should be treated differently from claims

under    the   LMRA     or    the    NLRA,        other   than      their    transparent


20
     404 F.2d 169, 171 (5th Cir.1969).
21
     Vaca v. Sipes, 386 U.S. 171, 191 (1967).
22
     McNair, 768 F.2d at 735.

                                             15
acronymic differences or location within the United States Code.

       Indeed, we see the plaintiffs’ argument as constituting a

distinction without difference.                  Regardless of whether a CBA is

established        under    the    LMRA,    NLRA,      or   RLA,   its    existence    is

premised      on    effectuating      a    key   purpose      behind     federal   labor

statutes, viz., placing the interests of the group ahead of the

interests of the individual employees.                       As we have previously

recognized, it would be “paradoxical in the extreme” if a union

that     is    vested      with    the     exclusive        authority     to   bring   an

employment grievance and pursue it up to and through binding

arbitration         were    not     likewise      vested       with      the   exclusive

responsibility to instigate and prosecute a review of an arbitral

award in court.23            Thus, for the same reasons articulated in

McNair and Acuff, we conclude that, when a CBA formed pursuant to

the RLA establishes a mandatory, binding grievance procedure and

vests the union with the exclusive right to pursue claims on

behalf    of       aggrieved      employees,      an    aggrieved       employee   whose

employment is governed by the CBA lacks standing to attack the

results of the grievance process in court —— the sole exception

being the authorization of an aggrieved employee to bring an




23
     Acuff, 404 F.2d at 171.

                                            16
unfair representation claim.24

     Here, the plaintiffs expressly disavowed any claim that IAM

breached its duty of fair representation.            Moreover, the CBA

explicitly establishes that the IAM shall represent all flight

attendants     in   grievance   procedures.   Both   Mitchell   and   Bale

specifically bestowed on the IAM (and never revoked) full power

of attorney to represent them at all stages of the grievance

procedure.     We therefore affirm the district court’s conclusion

that Mitchell and Bale lacked standing to petition for review of

the Award.25


24
  Contra McQuestion v. N.J. Transit Rail Operations, 892 F.2d 352,
354-55 (3d Cir. 1990) (concluding that the plain language of 45
U.S.C. § 153 First (q) provides individual employees with uniquely
individual grievances standing to bring in federal court a petition
for review of a arbitral hearing initiated pursuant to the RLA).
Unlike the underlying arbitral hearing here, which was brought by
the IAM on behalf of all Continental flight attendants, the
arbitration in McQuestion was “conducted solely to resolve
appellants’ uniquely individual grievance,” such that the two
plaintiffs/employees in McQuestion were the “‘real parties in
interest.’” Id. at 354 (quoting McQuestion v. N.J. Transit Rail
Operations, No. 88-4037, slip op. at 10 (D.N.J. May 12, 1989)). We
do not foreclose and need not decide today whether an individual
employee may ever bring such “uniquely individual claims,”
rendering him the “real party in interest,” such that § 153 First
(q) provides him standing to bring an RLA claim. Rather, under the
facts presented here and those of our precedent, an aggrieved
employee will generally lack standing to bring an RLA action.
25
  As we have concluded that Boorstein failed to exhaust her CBA-
created procedural remedies and that Mitchell and Bale lack
standing to bring a petition for review under the RLA, we need not
reach the plaintiffs’ constitutional due-process claims or their
contention that the Award was “wholly baseless and completely
without reason.”

                                     17
                            III. CONCLUSION

      Today, we logically extend our holdings in McNair and Acuff

to RLA cases, concluding that when a CBA that is formed pursuant

to the RLA establishes a mandatory, binding grievance procedure

and gives the union the exclusive right to pursue claims on

behalf of aggrieved employees, one whose employment is governed

by the CBA lacks standing to attack the results of the grievance

process in court, except only that an employee has standing to

bring a claim of unfair representation.          We also acknowledge and

apply our precedent that requires an employee to exhaust his

procedural remedies under a CBA before commencing a RLA lawsuit.

Based on the applicable law and our extensive review of the

parties’ briefs and the record on appeal, we conclude that the

district court did not commit any error.          Accordingly, we affirm

the   summary   judgment   of   the   district   court   in   favor   of   the

defendants.

AFFIRMED.




                                      18
