     Case: 09-11210 Document: 00511305761 Page: 1 Date Filed: 11/29/2010




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

                                                 FILED
                                                                         November 29, 2010

                                       No. 09-11210                         Lyle W. Cayce
                                                                                 Clerk

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE &
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA;
INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE &
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA LOCAL 848,

                                                   Plaintiffs - Appellees
v.

VOUGHT AIRCRAFT INDUSTRIES INC,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                            U.S.D.C. No. 3:09-cv-00299


Before JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:*
       Vought Aircraft Industries, Inc., (“Vought”) appeals from the district
court’s judgment compelling Vought to arbitrate grievances filed by the
International     Union,     United     Automobile,      Aerospace,     and    Agricultural
Implement Workers of America (“UAW”) and its Local Union 848 (collectively,
the “Union”) on behalf of a former employee. We conclude that the district court

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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correctly determined the issues presented.             Because one of the two former
employees in question died prior to the issuance of this opinion, we will dismiss
the portion of the case that involves him.
                                      I. Background
       Vought operates a manufacturing facility in Dallas, Texas. The UAW and
its Local Union 848 are the exclusive collective bargaining agents for certain
defined classes of Vought employees. Vought and the Union have entered
multiple, successive collective bargaining agreements (“CBA”). At all times
relevant to this litigation, the CBA contained a seniority provision stating that
“a salaried employee may return to the bargaining unit at the highest
classification held within the job family that seniority entitled him in accordance
with the layoff procedure . . . .” The CBA also contains a grievance procedure
which requires Vought and the Union to arbitrate unresolved grievances. The
CBA expressly excludes supervisors from the bargaining unit.
       Chester Kirksey (“Kirksey”) was at one point an hourly bargaining unit
employee covered by the CBA.1 In 1996, Kirksey transferred out of the collective
bargaining unit and into a salaried supervisor position. Kirksey remained a
supervisor with Vought until he was laid off in June 2006. After Kirksey was
laid off, he sought to return to a non-supervisory job within the bargaining unit.
Vought refused to return Kirksey to the bargaining unit, and the Union filed a
grievance on his behalf alleging that he had a right to return to the collective
bargaining unit pursuant to the seniority provision in the CBA.2 Vought refused


       1
         The Union initially filed grievances on behalf of two former employees: Kirksey and
Eugene Neeper (“Neeper”). Neeper perished in a motorcycle accident earlier this year.
Therefore, all claims brought on behalf of Neeper have become moot and the district court’s
decision regarding him is vacated and the case dismissed as to that portion.
       2
         The question of whether the seniority provision contains a right of return for former
bargaining-unit employees is not before the court, and we make no holdings as to that issue.
See Int’l Ass’n of Machinists, Lodge No. 2504 v. Intercontinental Mfg. Co., 812 F.2d 219, 221
(5th Cir. 1987) (“[C]ourts should not determine the merits of the underlying grievance[.]”).

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                                  No. 09-11210

to process the grievance, arguing instead that, as a supervisor, Kirksey was not
covered by the CBA. The Union, rather than petitioning the National Labor
Relations Board (“NLRB”) for a unit clarification or unfair labor practice charge,
filed suit in district court to compel Vought to arbitrate the grievance.
      In district court, Vought initially filed a motion to dismiss for lack of
subject matter jurisdiction and lack of standing. The only argument raised
concerning the Union’s standing was whether it could represent a member who
has left the collective bargaining unit. At no time in the district court did
Vought argue that the Union lacked Kirksey’s consent to sue. The district court
denied Vought’s motion. Later, Vought and the Union filed cross-motions for
summary judgment, and Vought again asserted its jurisdictional arguments.
The district court granted the Union’s motion, denied Vought’s motion, and
entered a judgment compelling arbitration. Vought timely appealed.
                                  II. Analysis
      Vought re-urges its jurisdictional arguments on appeal. Vought first
argues that the federal courts have no subject matter jurisdiction because the
grievances are primarily representational and, therefore, the National Labor
Relations Board (“NLRB”) has exclusive jurisdiction. Secondly, Vought argues
that the Union lacks standing to assert the claims on behalf of a person no
longer in the unit.
      A. Did the district court have jurisdiction to hear this kind of case?
      “Federal courts are courts of limited jurisdiction, and absent jurisdiction
conferred by statute, lack the power to adjudicate claims.” Stockman v. Fed.
Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998). We review claimed defects
of subject matter jurisdiction de novo. Qureshi v. United States, 600 F.3d 523,
524 (5th Cir. 2010).
      The Union brought this claim under section 301 of the Labor Management
Relations Act of 1947. 29 U.S.C. § 185. Under this provision, federal courts have

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jurisdiction over “[s]uits for violation of contracts between an employer and a
labor organization representing employees.” Id. The Union asserts that this
suit simply purports to enforce Kirksey’s contractual right to return to the
bargaining unit. Vought, on the other hand, argues that the issue presented is
primarily representational because it requires an initial determination that
Kirksey is represented by the Union. Vought argues that the district court
therefore lacked jurisdiction because “[t]he National Labor Relations Act vests
exclusive authority in the NLRB to pass on issues of representation.” W. Point-
Pepperell, Inc. v. Textile Workers Union, 559 F.2d 304, 307 (5th Cir. 1977); see
also 29 U.S.C. § 159. Vought claims that the present suit is an attempt to make
an end-run around the NLRB under the guise of a contractual dispute. See W.
Point-Pepperell, 559 F.2d at 306 (“Courts should not decide questions beyond
their jurisdiction under the guise of construing contracts under Section 301.”).
       We agree with the district court that the issue presented is contractual.
Unlike cases in which courts have declined to exercise jurisdiction because of
representational issues, resolution of the present issue does not require us to
determine whether the grievant, Kirksey, is a member of the bargaining unit.
The Union concedes that he is not. Rather, the Union asserts that Kirksey, as
a former bargaining-unit employee, accrued a right under the CBA to return to
the bargaining unit after leaving it for a salaried position. Such a question
involves interpreting the CBA, not determining who is covered by it,3 and is thus
contractual.




       3
        To the extent that ruling on a contractual issue in a collective bargaining agreement
requires determining that a grievant has rights under the CBA, the question does not always
render the issue impermissibly representational. Cf. Local Union No. 1846 of the United Bhd.
of Carpenters v. Pratt-Farnsworth, Inc., 690 F.2d 489, 518 (5th Cir. 1982) (“If anything, the
power to enforce a contract must necessarily include the ability to decide who is bound by the
contract.”)

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       The fact that Kirksey is no longer in the bargaining unit is not fatal to the
Union’s claims. Former employees, though no longer a part of the bargaining
unit, may have contractual rights pursuant to a CBA. See Allied Chem. & Alkali
Workers, Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 181 n.20
(1971) (retirees have a federal remedy under § 301); Meza v. Gen. Battery Corp.,
908 F.2d 1262 (5th Cir. 1990) (permitting suit by former employee for disability
benefits set out in CBA); see also Woosley v. Avco Corp., 944 F.2d 313, 317 (6th
Cir. 1991) (former supervisors “should be treated as members [of the bargaining
unit] in order to assert their right to return to the unit.”);4 Peerless Pressed Metal
Corp. v. Int’l Union of Elec., Radio, & Mach. Workers, 451 F.2d 19, 21 (1st Cir.
1971) (affirming order to compel arbitration where “the agreement could be read
to entitle [a supervisor] to reinstatement” into the bargaining unit). Though not
every right in a CBA necessarily extends to former employees, a contractual
right to return to the bargaining unit can logically apply only to employees who
have left the bargaining unit and therefore extends to former employees by
definition.
       Even assuming arguendo that the contractual issues in this case may
involve resolution of a representational issue, that is no bar to jurisdiction in this
circuit. As this court has noted:
       Where collateral issues of labor law, such as the determination of
       the appropriateness of a bargaining unit, become essential to the
       determination of the existence of a breach of contract under the
       independent federal remedy Congress created in section 301, a
       federal court may pass upon the issues under its congressional grant
       of jurisdiction notwithstanding the fact that a unit determination by



       4
        Before the district court, Vought argued that Woosley is distinguishable because the
supervisor in that case was entitled to return, and Kirksey is not. The form of this argument
about the meaning of the language in the CBA supports our conclusion that the issue is
primarily contractual. However, the substance of this argument goes to the merits of the
grievance, and is not properly before the court. See footnote 2, supra.

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       the Board might be available if one of the parties filed an unfair
       labor practice charge or sought a unit clarification.


Pratt-Farnsworth, 690 F.2d at 519 (5th Cir. 1982); see also Carey v. Westinghouse
Elec. Corp., 375 U.S. 261, 268 (1964) (“[A] suit . . . in the federal courts, as
provided by § 301 . . . is proper, even though an alternative remedy before the
Board is available.”). Such exercise of jurisdiction is particularly unlikely to
offend the careful balance of authority between the federal courts and the NLRB
where, as here, the NLRB has made no prior determination nor has proceedings
on the issue currently before it. See Pratt-Farnsworth, 690 F.2d at 515-17 &
n.12 (noting that jurisdictional issues are different depending on whether the
NLRB has intervened or not).
       The Supreme Court has similarly noted:
       By allowing the dispute to go to arbitration its fragmentation is
       avoided to a substantial extent; and those conciliatory measures
       which the Congress deemed vital to “industrial peace” and which
       may be dispositive of the entire dispute, are encouraged. The
       superior authority of the [NLRB] may be invoked at any time.
       Meanwhile, the therapy of arbitration is brought to bear in a
       complicated and troubled area.


Carey, 375 U.S. at 272 (internal citations omitted). We therefore hold that the
district court properly determined that it could hear such a case.
       B. Can the Union Act on Behalf of a Former Member of the Unit?
       In the district court, Vought argued unsuccessfully that the Union can
never represent a person no longer in the Unit.5 We agree with the district court
that Kirksey’s departure from the Unit is not fatal to the Union’s ability to
represent him here. The Union may represent former employees, but only with
their consent. Meza, 908 F.2d at 1271 (“Employees who are not exclusively

       5
         It stated: “A labor union is not authorized to act on behalf of individuals outside of
the bargaining unit.”

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represented by a union are free to choose whether they want the union to
represent them.”); cf. Int’l Ass’n of Machinists v. Goodrich, 410 F.3d 204, 212
(5th Cir. 2005) (finding that a union had standing because retirees had given
their express consent to its representation). A showing of consent is required
because the Union owed no duty of fair representation to Kirksey. Cooper v.
Gen. Motors Corp., 651 F.2d 249, 250 (5th Cir. 1981).
       The issue of whether Kirksey had consented to this suit was raised for the
first time at oral argument. Because this issue was raised for the first time on
appeal,6 the district court record was not fully developed on this issue. However,
Kirksey filed an affidavit with this court, to which Vought objects, which
establishes his consent.7       Vought does not offer any basis to conclude that
Kirksey’s affidavit is erroneous. Thus, while we might ordinarily remand to
develop the facts, here we conclude such remand is unnecessary given the
procedural posture of this case. Having waited until oral argument to raise the
issue of Kirksey’s consent, Vought cannot now complain about an affidavit
establishing same.
       AFFIRMED as to portion addressing Kirksey, VACATED                               AND
DISMISSED as to portion addressing Neeper.




       6
          Although it is true that Vought did contest standing in the district court, it did so
on the basis that a union can never represent a former employee not on the basis that this
particular employee did not consent to union representation in this lawsuit.
       7
         After oral argument, the Union filed an affidavit from Kirksey indicating that he
requested the Union’s handling of his grievance and affirming his desire that the Union
continue to represent him. Vought argues that we cannot consider this affidavit, citing
Summers v. Earth Island Inst., 129 S. Ct. 1142, 1150 (2009). In that case, the party contesting
standing had raised the precise issue before the district court prior to a judgment on the
merits, whereas in our case, the issue of consent was not raised until appellate oral argument
following a district court decision to send the case to arbitration.

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