Opinion
Civil No. 03-1642 (ESH)
November 3, 2003
MEMORANDUM OPINION
Pinnacle Airlines, Inc. initiated this action against defendants National Mediation Board ("Board") and Paper, Allied-Industrial, Chemical Energy Workers International Union ("PACE") pursuant to the Railway Labor Act ("RLA"), 45 U.S.C. § 151 et seq., seeking to set aside the Board's recent certification of PACE as the collective bargaining representative of the craft or class of fleet and passenger service employees in Pinnacle's service, and requesting a declaration that Pinnacle is under no obligation to bargain with PACE. PACE has counterclaimed for injunctive relief and damages based on Pinnacle's alleged violation of the RLA for, inter alia, refusing to negotiate in good faith with PACE towards the ratification of a collective bargaining agreement. Count II of PACE's counterclaim alleges that Pinnacle "unilaterally and discriminatorily abolish[ed] full time ramp positions to retaliate against and interfere with ramp employees' union activities. . . ." (PACE's Answer to Amended Complaint for Injunctive and Declaratory Relief and Amended Counterclaim for Injunctive and Declaratory Relief and Damages ("Countercl.") at 7.) Pinnacle's motion to dismiss Count II of the counterclaim for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) is now before the Court. (Motion to Dismiss Count II of Amended Counterclaim ("Pl.'s Mot.").)
STANDARD OF REVIEW
For an action to survive a Rule 12(b)(6) motion to dismiss, it need only provide a short and plain statement of the claim and the grounds on which it rests. Fed.R.Civ.P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47 (1957). To be sufficient, it must fairly put the defendant on notice of the claim against it so it has an opportunity to file a responsive answer and to prepare an adequate defense. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002).
Dismissal is inappropriate unless the claimant "can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46. The claimant need not plead the elements of a prima-facie case. Swierkiewicz, 534 U.S. at 511-14; Krieger v. Fadety, 211 F.3d 134, 136 (D.C. Cir. 2000) (a complaint "need not plead law or match facts to every element of a legal theory"); Atchinson v. Dist. of Columbia, 73 F.3d 418, 421-22 (D.C. Cir. 1996) (a complaint "need not allege all that a plaintiff must eventually prove"). Nor is a claimant required to allege the existence of evidence he might obtain through discovery. Stokes v. Cross, 327 F.3d 1210, 1216 (D.C. Cir. 2003).
Thus, the Court may dismiss a complaint for failure to state a claim only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Atchinson, 73 F.3d at 422. In deciding such a motion, the Court must accept all of the complaint's well-pled factual allegations as true and draw all reasonable inferences in the nonmovant's favor. Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). The Court need not, however, accept as true legal conclusions cast as factual allegations. Id.
Although Pinnacle frames its motion as one to dismiss pursuant to Rule 12(b)(6), some courts have construed similar motions as Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction. See Local Union No. 2000, Int'l Bhd. of Teamsters v. Northwest Airlines, Inc., 21 F. Supp.2d 751, 757 (E.D. Mich. 1998), aff'd, 182 F.3d 917 (6th Cir. 1999) (dismissing an RLA complaint on Rule 12(b)(1) grounds because it fell within the exclusive jurisdiction of the National Adjustment Board established under the RLA); see also Ass'n of Flight Attendants v. Horizon Air Indus., Inc., 280 F.3d 901, 903 (9th Cir. 2001); Nat'l R.R. Passenger Corp. v. Int'l Ass'n of Machinists Aerospace Workers, 915 F.2d 43, 53 (1st Cir. 1990). The Court, however, will not dismiss Count II of PACE'S counterclaim under either rule.
LEGAL ANALYSIS
The RLA provisions that PACE invokes prohibit employers from engaging in discriminatory actions designed to impede or inhibit employees' exercise of their right to organize for collective bargaining purposes. Atlas Air, Inc. v. Air Line Pilots Ass'n, 232 F.3d 218, 224 (D.C. Cir. 2000). Section l(a)2 of the RLA "forbid[s] any limitation upon freedom of association among employees or any denial, as a condition of employment or otherwise, of the rights of employees to join a labor organization." 45 U.S.C. § 151a(2). Section 2 specifies various employee protections. For instance, it provides that employees may select their representatives "without interference, influence, or coercion" of "any" kind. Id. § 152, Third. It further provides that
No carrier, its officers or agents, shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees . . . or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization. . . .Id. § 152, Fourth.
Pinnacle argues that PACE cannot obtain relief under these provisions because they relate exclusively to pre-certification conduct. (Memorandum of Points and Authorities in Support of Motion to Dismiss Count II of Amended Counterclaim ("Pl.'s Mem.") at 5.) It asserts that the Supreme Court has effectively barred PACE'S claim by substantially circumscribing judicial intervention for claims brought under section 2, Third and Fourth once a union has been certified. ( Id. (citing TWA v. Indep. Fed'n of Flight Attendants, 489 U.S. 426 (1989)).) Pinnacle claims it is free to "make unilateral changes to terms and conditions of employment during the period between union certification and entry of an initial collective bargaining agreement" (Pl.'s Mot. at 2), although it acknowledges the propriety of court intervention when alleged post-certification anti-union acts constitute "a fundamental blow to union or employer activity and the collective bargaining agreement itself." TWA, 489 U.S. at 442. Pinnacle asserts that its conduct does not give rise to a justiciable claim because it did not strike the required "fundamental blow." (Pl.'s Mem. at 9.)
While the Court recognizes that section 2, Third and Fourth "address primarily the pre-certification rights and freedoms of unorganized employees," TWA, 489 U.S. at 440, it is unwilling to dismiss PACE'S claim based on these provisions at this stage in the litigation.
The Supreme Court has "understood judicial intervention in RLA procedures to be limited to those cases where but for the general jurisdiction of the federal courts there would be no remedy to enforce the statutory commands which Congress had written into the Railway Labor Act." Id. at 441 (internal quotations omitted). Thus, post-certification judicial intervention is more often appropriate before a collective bargaining agreement is in place, when non-judicial remedies are more limited. See Atlas, 232 F.3d at 226; Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1252-53 (2d Cir. 1992) (reversing the district court's dismissal of a union's claim that the airline violated section 2, Third and Fourth, for discharging employees who were engaged in a strike designed to enforce union certification before the creation of a collective bargaining agreement). Similarly, when an agreement is in effect, courts have jurisdiction over post-certification claims falling outside of the agreement. See Air Line Pilots Ass'n, Int'l v. Transamerica Airlines, Inc., 817 F.2d 510, 516-17 (9th Cir. 1987) (holding that a complaint stated a claim under section 2, Third and Fourth, despite union certification and the existence of collective bargaining agreement); Ry. Labor Executives' Ass'n v. Boston Maine Corp., 808 F.2d 150, 157 (1st Cir. 1986) (same). Here, no collective bargaining agreement is yet in place ( see Pl.'s Mem. at 3), and the parties have not indicated that any remedy other than judicial intervention is available. For this reason alone, TWA, a case in which the parties had a collective bargaining agreement, does not prohibit PACE'S claim.
Conversely, many courts that have dismissed unions' claims under section 2, Third and Fourth when collective bargaining agreements are in place have done so on the basis that the unions have viable non-judicial remedies available through the RLA's mandatory arbitration of "minor" disputes (defined as disagreements over the interpretation or application of existing agreements). See, e.g., Horizon Air, 280 F.3d at 907; Nat'l R.R., 915 F.2d at 50; McCarthy v. Nat'l R.R. Passenger Corp., 712 F. Supp. 5, 9 (D. Mass. 1989), aff'd, 915 F.2d 43 (1st Cir. 1990).
Furthermore, this Circuit in Atlas specifically addressed the protections employees enjoy in the window of time between union certification and the ratification of a collective bargaining agreement. Atlas held that although the RLA only prohibits unilateral changes in wages or working conditions when there is a preexisting collective bargaining agreement, "[t]he lack of an enumerated obligation to maintain the status quo pending the negotiation of a collective bargaining agreement does not absolve an employer from its obligation to refrain from activities which undermine employees' rights." Atlas, 232 F.3d at 223. The Atlas Court therefore applied Section 2, Third and Fourth to Atlas Air's policy penalizing employees who unionized by denying them profit sharing benefits.
The RLA contains "status quo" provisions that by their express terms only prohibit unilateral changes in wages or working conditions when there is a preexisting collective bargaining agreement. See Williams v. Jacksonville Terminal Co., 315 U.S. 386, 402-03 (1942). For example, section 2, Seventh provides that "[n]o carrier, its officers or agents shall change the rates of pay, rules, or working conditions of its employees, as a class as embodied in agreements except in the manner prescribed in such agreements. . . ." 45 U.S.C. § 152, Seventh. Section 6 requires that employers and employee representatives "shall give at least thirty days' written notice of an intended change in agreements affecting rates of pay, rules, or working conditions. . . ." Id. § 156. Because the parties have no collective bargaining agreement in place here, the RLA status quo provisions do not apply. See Atlas, 232 F.3d at 223.
While we continue to recognize that the employer may alter status quo working conditions, so long as no collective bargaining agreement exists between the parties, where the challenged modification to the status quo is far from merely formal, and is in fact the equivalent of a substantial decrease in compensation having a real and material impact on the conditions of employment, and is justified on no other grounds than union certification, we may presume that the carrier's actions were motivated by anti-union animus and are in violation of RLA Section 2, Third and Fourth. To hold otherwise would allow a carrier, without legal consequence, to slash to subsistence levels the wages of those employees who elect to unionize.Id. at 226. Thus, "the real question" in cases challenging an employer's post-certification pre-agreement conduct is whether "the carrier has discriminated against its employees because they have engaged in activities protected by the RLA. . . ." Id. at 224 (quoting Boston Maine, 808 F.2d at 157).
Based on these authorities, it is premature dismiss PACE'S claim without further factual discovery to determine whether it can adduce sufficient evidence to raise an inference that anti-union animus was a substantial or motivating factor behind the challenged action. Held v. Am. Airlines, Inc., 13 F. Supp.2d 20, 26 (D.D.C. 1998) (citing ALP A v. Eastern Airlines, Inc., 863 F.2d 891, 902 (D.C. Cir. 1988)). In Held, for example, the union demonstrated sufficient facts to make out a claim under Section 2, Third and Fourth where it alleged that a ban on all non-work related communications in flight operation areas unlawfully interfered with internal union affairs. Id. Here, PACE alleges that less than a month after its certification as the employees' representative, Pinnacle announced — and subsequently affected — the abolition of full time ramp positions and their replacement with part time positions. (Countercl. ¶ 12.) It alleges that "45 or more" employees lost full time employment as a result of Pinnacle's actions, claiming that the number of employees impacted will not be known until discovery. (Def.'s Opp. at 8.) It asserts that Pinnacle's management targeted the group of ramp workers, which represents the largest contingent of union supporters, specifically to retaliate against them for selecting union representation. (Countercl. ¶ 15.)
Once the union has proffered evidence sufficient to create a presumption of anti-union animus, the employer "must prove that it would have taken those measures absent any anti-union animus by citing a legitimate business purpose for its action." Id. (citing Eastern, 863 F.2d at 902 (finding that the carrier had legitimate business motivations independent of any effort to discourage employees from exercising their rights under the RLA)).
Pinnacle argues that its actions (as alleged by PACE) do not amount to the Supreme Court's requisite "fundamental blow" to union activity because they have not caused "massive disruption" to the union by affecting a large percentage of union members. ( See Pl.'s Mem. at 6.) In this Circuit, however, the magnitude of the effect is not dispositive. Instead, an employer's action is considered "inherently destructive" and appropriate for judicial review and remedy if the employer "discriminate[s] solely on the basis of union membership." Atlas, 232 F.3d at 225 (quoting Eastern, 863 F.2d at 902). While Pinnacle's actions here arguably did not have as broad an impact on unionized employees as the employer's actions in Atlas, PACE may be able to demonstrate, through further discovery, that the acts were "inherently destructive" and thus a violation of section 2, Third and Fourth.
Even if the instant motion were better framed as a 12(b)(1) motion to dismiss for lack of jurisdiction, further discovery is appropriate. See Int'l Ass'n of Machinists Aerospace Workers v. Northwest Airlines, Inc., 673 F.2d 700, 710-11 (3d Cir. 1982) (in determining jurisdiction, the district court "must of necessity proceed to a decision which impacts on the merits" and "examine the entire record before it" where it is alleged that the airline's actions violated section 2, Third and Fourth); Northwest Airlines, 21 F. Supp.2d at 757 (a motion to dismiss for lack of jurisdiction was granted after "two days of exhaustive testimony" demonstrating that the union fell "far short of meeting its burden to come forth with evidence indicating anti-union animus at a level that would vest [the] court with jurisdiction under the RLA in this post-certification dispute").