                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

GARY PETERSON, et al.,

                       Plaintiffs,

                       v.                          Case No. 1:13-cv-00170 (CRC)

TRANSPORT WORKERS UNION OF
AMERICA, AFL-CIO,

                       Defendant.


                                     MEMORANDUM OPINION

       This putative class action is the latest skirmish in a long-running dispute among

mechanics at American Airlines over which union should represent them. Following American’s

bankruptcy in November 2011, its mechanics narrowly ratified a collective bargaining agreement

between the airline and the Transportation Workers Union (“TWU”). A group of American

mechanics who would prefer to be represented by another union—the American Mechanics

Fraternal Association (“AMFA”)—has filed suit over the process that led to the ratification of

that agreement. They contend that in negotiating the agreement with the airline, TWU leadership

favored mechanics who work at American’s principal maintenance base in Tulsa, Oklahoma at

the expense of Plaintiffs and others who work elsewhere. This preferential treatment, they

allege, breached the union’s duty of fair representation and violated their voting rights under the

Labor-Management Reporting and Disclosure Act.

       Plaintiffs do not seek monetary damages or the invalidation of the collective bargaining

agreement. They request instead a declaratory judgment and permanent injunction requiring the

TWU to refrain from the alleged unfair practices in future contract negotiations. Because
Plaintiffs have not identified any impending injury that could be prevented by the relief they

seek, the Court concludes that they lack standing to bring this suit. For similar reasons, the Court

also concludes the suit is unripe. The Court therefore will grant the TWU’s motion to dismiss

the complaint for lack of subject matter jurisdiction.

I.     Background

       Plaintiffs and their proposed class members are part of a “craft or class” of mechanics

and related employees at American Airlines.1 They and workers in six other employee

classifications are represented by the TWU. Second Amended Complaint ¶ 18 (“SAC”).

Roughly half of the mechanics and related employees perform heavy maintenance and overhaul

aircraft at American’s primary maintenance base in Tulsa, Oklahoma. SAC ¶ 24. The others

work at other maintenance bases in Fort Worth or Dallas, Texas, or perform lighter “line” service

at airports served by American throughout the country. SAC ¶¶ 22–23.

       Soon after filing for bankruptcy protection in November 2011, American took steps to

reject its collective bargaining agreement (“CBA”) with the TWU and renegotiate a modified

agreement. American’s first “last best offer” during the negotiations proposed to eliminate

almost 4,000 line and maintenance base jobs. SAC ¶ 57. This offer failed a ratification vote.

SAC ¶ 58. After further negotiations, American’s second “last best offer” proposed to save

1,439 jobs at the Tulsa maintenance base from the 2,358 that would have been eliminated under

the prior offer. SAC ¶ 60. Non-Tulsa maintenance base workers and line mechanics, however,

saw their job losses increase slightly from the first to the second offer. SAC ¶ 62. Largely on

the support of employees at the Tulsa maintenance base, a CBA reflecting American’s second

offer was ratified by the narrowest of margins: 50.25% to 49.75%. SAC ¶ 78. The CBA went
1
  A “craft or class” under the Railway Labor Act, 45 U.S.C. § 151 et seq., which governs
American’s relationship with its mechanics, is similar to a bargaining unit under the National
Labor Relations Act, 29 U.S.C. § 141 et seq.
                                                 2
into effect in the fall of 2012 following bankruptcy court approval. SAC ¶ 80. The agreement

runs through September 2018 and will not be subject to renegotiation until September 2016.

Def.’s Mot. Dismiss Ex 12.

       The CBA negotiations described above followed a history of sparring between the TWU

and AMFA. In 1998, 2003, and earlier in 2012, AMFA had organized campaigns to replace

TWU as the collective bargaining representative of American’s mechanics and related

employees. SAC ¶¶ 26, 33. See Opinion and Order, Schalk v. Transp. Workers Union, No. 03-

804, 2007 WL 1310171, at *1 (S.D.N.Y. May 3, 2007) (describing a bitter rivalry between

AMFA and TWU over representation of American mechanics). Each of those drives failed,

according to Plaintiffs, because the Tulsa mechanics consistently opposed any switch to AMFA.

SAC ¶¶ 24, 33. Several TWU members have been removed from leadership positions in the

union due to their public support of AMFA. SAC ¶¶ 30–32.

       Against that historical backdrop, Plaintiffs allege the TWU engaged in a number of unfair

practices during the 2012 CBA negotiations to protect its supporters in Tulsa and inflict

disproportionate losses on what it viewed as troublesome dissenters. They claim TWU

leadership was “openly hostile” during the negotiations to the presidents of the non-Tulsa local

unions, whom it considered to be loyal to AMFA. SAC ¶ 42. Plaintiffs also contend that the

TWU allowed the Tulsa local to negotiate directly with American bargaining representatives,

resulting in reduced job losses and improved working conditions, while other locals were denied

this access. SAC ¶¶ 49, 64. When it came time for ratification, Plaintiffs maintain the TWU

refused to hold meetings outside the Tulsa base to educate members about the proposed offer.

SAC ¶ 77. The TWU’s “fail[ure] to devote time and effort” on behalf of the line mechanics and

non-Tulsa maintenance workers, according to Plaintiffs, resulted in a contract with inferior work



                                                3
rules in areas such as overtime and vacation days, loss of seniority, and increased job losses for

those whom TWU leadership perceived were supporting AMFA. SAC ¶¶ 73, 74, 85.

       Plaintiffs filed suit in February 2013. After an interim amendment, they filed a second

amended complaint in August 2013 alleging the TWU’s actions breached the union’s duty of fair

representation to them and other putative class members. See Vaca v. Sipes, 386 U.S. 171, 177

(1967) (unions have a duty “to serve the interests of all members without hostility or

discrimination towards any, to exercise its discretion with complete good faith and honesty, and

to avoid arbitrary conduct”). Plaintiffs also allege that the TWU’s conduct during the CBA

ratification process violated their right under the Labor-Management Reporting and Disclosure

Act (“LMRDA”) to have a “meaningful” vote in union elections. See Bunz v. Moving Picture

Mach. Operators’ Protective Union Local 224, 567 F.2d 1117, 1121 (D.C. Cir. 1977).

       Soon after Plaintiffs filed suit, American announced a proposed merger with US Airways.

The merger was consummated in December 2013. Def.’s Opp’n to Pls.’ Second Mot. Leave to

File Supplement Ex. A, at *1. In the wake of the merger, the TWU entered into an association

with the International Association of Machinists (“IAM”), which represents mechanics and other

workers at US Airways. Id. at *2. The two unions petitioned the National Mediation Board on

August 6, 2014 for a finding that the merged airline is operating as a single carrier. Id. at *1.

This finding is a first step to certifying a TWU-IAM joint council as the exclusive bargaining

representative of the combined airline’s mechanics.

       The TWU has moved to dismiss the second amended complaint under Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6). At the threshold, the union contends that the Court lacks

subject matter jurisdiction over the case because Plaintiffs cannot satisfy the injury-in-fact

requirement of Article III standing in light of the numerous contingencies and uncertainties



                                                  4
surrounding the timing of any future bargaining with the merged airline and the role of the TWU

in that bargaining. The union points out that there are currently no planned system-wide contract

negotiations between the TWU and American and, due to the uncertainty over who will be

representing the combined carrier going forward, there may never be. It also asserts that the

TWU has installed new leadership since the last round of collective bargaining that could take a

different negotiating position from prior leadership. The TWU thus argues the Plaintiffs have

failed to allege a substantial likelihood of future harm as required to establish standing. It

asserts, in a similar vein, that the action is unripe. As for the merits, TWU contends that

Plaintiffs have failed to plead facts that would support a finding that the union breached its duty

of fair representation or violated their voting rights under the LMRDA. Because the Court will

dismiss the second amended complaint for lack of standing, it does not address the union’s

arguments that Plaintiffs failed to state a claim under Rule 12(b)(6).

II.     Analysis

       A.      Standing

       Under Federal Rule of Civil Procedure 12(b)(1), a plaintiff bears the burden of

establishing jurisdiction by a preponderance of the evidence. Lujan v. Defenders of Wildlife,

504 U.S. 555, 561 (1992). The Court must accept all factual allegations as true, and plaintiffs

receive the benefit of all favorable inferences that can be drawn from the alleged facts. Little v.

Fenty, 689 F. Supp. 2d 163, 167 (D.D.C. 2010). But a court scrutinizes factual allegations more

closely in resolving a Rule 12(b)(1) motion than in resolving a Rule 12(b)(6) motion to dismiss.

Id. A court may also examine evidence outside the complaint to decide a Rule 12(b)(1) motion

to dismiss. Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C.

Cir. 2005).



                                                  5
       To establish standing, a plaintiff must allege: (1) an “injury in fact” that is “concrete and

particularized” and “actual or imminent,” (2) a causal connection between the injury and the

offensive conduct, and (3) likely redressability. Lujan, 504 U.S. at 561. In cases seeking an

injunction or other prospective relief, a plaintiff must identify a threatened injury that is

“certainly impending” and not simply “possible.” Clapper v. Amnesty Int’l USA, 133 S. Ct.

1138, 1147 (2013).2 “Certainly impending” does not mean that the injury must be certain to

occur. Id. at 1150 n.5 (“Our cases do not uniformly require plaintiffs to demonstrate that it is

literally certain that the harms they identify will come about.”). But there must be a “substantial

risk” that the alleged injury will occur. Id. The threatened injury must also be “imminent” in the

temporal sense. McConnell v. Fed. Election Comm’n, 540 U.S. 93, 226 (2003) (holding that a

political candidate’s alleged injury was “too remote” to satisfy Article III standing because it

would not occur until his reelection campaign, if at all). A court may reasonably infer future

injury when a party is openly committed to the action challenged by the plaintiff. E.g.,

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 152–53 (2010); Sierra Club v. Jewell, 764

F.3d 1, 7 (D.C. Cir. 2014). But an alleged injury cannot support standing if it is based primarily

on conjecture about future actions and responses. E.g., DaimlerChrysler Corp. v. Cuno, 547 U.S.

332, 344 (2006).

       Plaintiffs have identified three alleged future injuries from which they seek relief. The

first, which Plaintiffs outline in the prayer for relief section of the second amended complaint, is

discriminatory conduct during future negotiations between the TWU and American (or its

2
  Plaintiffs’ request for a declaratory judgment does not relieve them from pleading impending
injury. The Declaratory Judgment Act widens the range of remedies a federal court may order,
but does not enlarge federal jurisdiction. Grand Lodge of Fraternal Order of Police v. Ashcroft,
185 F. Supp. 2d 9, 15 n.4 (D.D.C. 2001). Therefore a plaintiff seeking a declaratory judgment
must still present a “substantial controversy . . . of sufficient immediacy and reality” in order to
have standing. Fed. Exp. Corp. v. Air Line Pilots Ass’n, 67 F.3d 961, 964 (D.C. Cir. 1995).
                                                   6
successor) concerning a new CBA or amendments to the present agreement. SAC ¶ D. The

second is unfair treatment during negotiations over a new CBA between a potential TWU-IAM

joint council and the now-merged airline. Pls.’ Opp’n Mot. Dismiss at 16. And the third, which

Plaintiffs raise for the first time in their opposition papers, is bias against them in connection

with day-to-day implementation of the existing CBA. Id. at 13–16. The Court will apply the

standing principles discussed above to each of these alleged future injuries.

               i.      System-Wide CBA Negotiations Between the TWU and American

        The crux of Plaintiffs’ complaint is that the TWU favored Tulsa-based mechanics in its

negotiations with American over the current CBA. They therefore seek to prevent the TWU

from engaging in similar favoritism in future system-wide negotiations.3 These allegations,

however, do not describe a substantially likely future injury for two reasons. First, as noted

above, the TWU and IAM have petitioned the National Mediation Board to find that the merged

American/US Airways is operating as a single carrier. Should the Board make that finding—and

Plaintiffs do not suggest it will not—the TWU and IAM have indicated they will form a joint

council to be the exclusive bargaining representative of the combined airline’s mechanics.4 The


3
  The Plaintiffs’ primary focus on injuries stemming from further system-wide bargaining is
evident from the prayer for relief in the second amended complaint. Plaintiffs request a
permanent injunction requiring the TWU to “[r]efrain from participating in secret bargaining
sessions with the company that are undisclosed to, or unauthorized by, any full negotiating
committee[; and] . . . [r]efrain from negotiating with the company with less than the full
complement of any constitutionally designated negotiating committee.” SAC ¶ D. The
injunction would also require the TWU to “[p]rovide reasonable advance notice to all designated
members of the full or any sub negotiating committees, of any bargaining sessions[; and] . . .
hold meetings at all stations, line or base, if any meetings are held at any station, for the purpose
of educating members about the contents of a proposed contract or amendment in advance of a
ratification vote.” Id. All of these requirements relate only to future system-wide bargaining.
4
  Although Plaintiffs do not dispute the merged airline is operating as a single carrier, they are
contesting before the National Mediation Board whether the joint council may be listed as the
incumbent on a single carrier union election ballot, an advantage they describe as “virtually
insuperable.” Pls.’ Second Mot. Leave to File Supplement Ex. 9. Plaintiffs’ challenge before the
                                                  7
TWU itself would no longer serve that role and, therefore, could not engage in the types of unfair

practices that Plaintiffs seek to enjoin.

          Second, the current CBA will not expire until September 2018, and the union cannot seek

to amend it before September 2016. As a result, even if the TWU remained the exclusive

bargaining representative of the combined airline’s mechanics, the potential for system-wide

unfair negotiating practices will not arise until sometime after 2016. Plaintiffs have not alleged

when the TWU or the airline intends to reopen negotiations, what the bargaining position of the

TWU will be, or how that position will harm the Plaintiffs’ interests. The alleged injury is

therefore not sufficiently “imminent” or “impending” to confer standing. McConnell, 540 U.S.

at 226.

          Given the distinct possibility that the TWU will not be the exclusive bargaining

representative in negotiations over the next CBA, and the lack of information regarding when

and how negotiations can be expected to unfold, Plaintiffs have not demonstrated a substantial

risk that TWU’s alleged favoritism towards the Tulsa mechanics in the last round of system-wide

bargaining will reoccur. This source of alleged future injury is therefore insufficient to establish

standing.

                 ii.     System-Wide CBA Negotiations Between a Joint Council and the Airline

          In response to the TWU’s argument that any risk of future injury would be reduced by the

formation of a joint council, Plaintiffs contend that the TWU, as a member of the joint council,

would nevertheless be in a position to influence future system-wide negotiations to Plaintiffs’

detriment. Pls.’ Opp’n Mot. Dismiss at 19–20. The distribution of powers in and composition of

any joint council have yet to be determined, however. Plaintiffs have not alleged who the TWU


Board only heightens the uncertainty regarding what entity will represent mechanics at the
merged airline going forward.

                                                  8
representatives on the joint council will be; how the TWU’s stance might be adverse to the

Plaintiffs’ interests; or, even if it proves to be adverse, whether the TWU representatives would

be in a position to compel the joint council to engage in the types of unfair practices alleged in

the second amended complaint. Given these uncertainties, the possibility that the TWU might

harm the Plaintiffs via its influence over any future joint council is too speculative to satisfy

Article III standing requirements.5

               iii.    “Day-to-Day” Negotiations over Implementation of the Current CBA

       Finally, Plaintiffs oppose the union’s motion to dismiss on the grounds that the relief they

seek is necessary to protect them from unfair treatment in the administration of the current CBA.

Emphasizing the general principle that collective bargaining is an ongoing, day-to-day process,

e.g., Conley v. Gibson, 355 U.S. 41, 46 (1957), Plaintiffs assert that continuing negotiations

between the TWU and American “on a variety of subjects” expose them to harm. Pls.’ Opp’n

Mot. Dismiss at 13. Yet the second amended complaint fails even to mention any specific day-

to-day negotiations, let alone allege injuries stemming from them. Although the Court may

examine evidence outside the complaint to decide a Rule 12(b)(1) motion to dismiss, see Jerome

Stevens Pharmaceuticals, 402 F.3d at 1253, Plaintiffs still have not meet their burden to allege

likely injury arising from day-to-day representation.

       In support of their allegations of day-to-day harm, Plaintiffs quote excerpts from several

“letters of memorandum” concerning issues the parties apparently left open for further discussion

during the 2012 CBA negotiations. As the TWU points out, however, the portions of the letters

quoted by Plaintiffs reveal that the covered topics may never be the subject of negotiations.

Def.’s Reply Mot. Dismiss at 4 n.16 (Letter 9 (“referring to a Committee that may ‘recommend

5
 The Court notes that the requested declaratory judgment and injunction against the TWU
would not bind any future joint council, which would be a different entity.

                                                  9
possible changes’) . . . ; Letter 15 (recognizing need for negotiations ‘if the Company designs a

schedule that consists of more than an eight (8) hour workday’) . . . ; Letter 18 (stating that the

parties ‘may revisit [certain] practices if necessary’”)) (emphasis added).6 Plaintiffs do not allege

that either side intends to open negotiations over the topics covered by these letters, or, if it did,

when those negotiations might occur or what their outcome might be.

        The TWU also contends that any day-to-day negotiations on topics left open in the CBA

would be conducted by TWU locals, which are not hostile to Plaintiffs. Indeed, two of the

Plaintiffs are presidents of local unions. Id. at 4–5; Drummond Decl. ¶ 3, Jan. 15, 2014.

Plaintiffs counter that the national union would nonetheless have veto power over local

decisions. In support of this argument, Plaintiffs cite a June 2014 letter from TWU International

to two union locals ordering them to cease negotiations with the merged airline. Pls.’ Opp’n

Mot. Dismiss Ex. 6. Plaintiffs argued at the hearing that this letter demonstrates that TWU

refuses to let union locals conduct negotiations. The letter, however, concerned bargaining over

a new general contract, not local work arrangements. Id. It therefore does not rebut the union’s

argument that authority over day-to-day CBA implementation lies with the locals. Given the

uncertainty regarding the likelihood of future discussions under the letters of memorandum and

the degree of local control over such day-to-day contract administration, Plaintiffs have not

established that the letters of memorandum give rise to a “substantial risk” of future injury.

Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1150 n.5 (2013). In sum, because none of the

Plaintiffs’ alleged future injuries is “certainly impending,” they have not met their burden to

establish standing.

6
  Aside from Letter of Memorandum 8, Pls.’ Opp’n Mot. Dismiss Ex. 8, which merely lists local
letters of agreement that are no longer in force, Plaintiffs did not include these letters of
memorandum as exhibits to their opposition brief, so the complete letters are not a part of the
record before the Court.
                                                  10
       B.      Ripeness

       This case is also unripe. Article III prohibits “courts from issuing advisory opinions on

speculative claims.” Am. Tort Reform Ass’n v. Occupational Safety & Health Admin., 738 F.3d

387, 396 (D.C. Cir. 2013). Thus, the Court may not entertain a claim unless it is constitutionally

ripe. Nevada v. Dep’t of Energy, 457 F.3d 78, 83 (D.C. Cir. 2006). The ripeness doctrine

requires the Court to examine “the ‘fitness of the issues for judicial decision’ and the ‘hardship to

the parties of withholding court consideration.’” Id. (quoting Abbott Labs. v. Gardner, 387 U.S.

136, 149 (1967)).

       Here, the ripeness analysis overlaps substantially with the standing inquiry discussed

above; the lack of an impending injury means this Court does not have jurisdiction under Article

III. The Ninth Circuit recently affirmed the dismissal of a similar case due to lack of ripeness.

Addington v. U.S. Airline Pilots Ass’n, 606 F.3d 1174 (9th Cir. 2010). In that matter, the union

was “constitutionally committed” to a bargaining position in upcoming CBA negotiations that

the plaintiffs considered adverse to their interests. Id. at 1177. The Ninth Circuit nevertheless

found that multiple contingencies—concerning what proposal would be acceptable to the airline

and whether members would ratify it—made the claims unduly speculative. Id. at 1179–80.

Here, system-wide negotiations may not reoccur as alleged, or at all, and there are no concrete

effects or actions to evaluate against the union’s obligations. The second amended complaint is

therefore unripe for adjudication.




                                                 11
III.   Conclusion

       For the foregoing reasons, the Court will grant the TWU’s Motion to Dismiss the

complaint. The TWU’s motions to supplement the record also will be granted. Plaintiffs’

motion to certify the class will be denied as moot. The Court will issue a separate Order

consistent with this Opinion.




                                                            CHRISTOPHER R. COOPER
                                                            United States District Judge


Date: December 1, 2014




                                               12
