John Stanton, Plaintiff, Appellant, v. Delta Air Lines, Inc., et al., Defendants, Appellees.john Stanton, Plaintiff, Appellee, v. Delta Air Lines, Inc., et al., Defendants, Appellees.air Line Pilots Association, International, Defendant, Appellant.john Stanton, Plaintiff, Appellee, v. Delta Air Lines, Inc., Defendant, Appellant,andair Line Pilots Association, International, et al.,defendants, Appellees, 669 F.2d 833 (1st Cir. 1982)

This case involves a question of appropriate procedural remedy after a court has found that a union failed to represent a member fairly on a matter subject to grievance arbitration under the Railway Labor Act (as extended to air carriers).¹  The member, appellant John Stanton, initially sought arbitration of a grievance. The arbitration panel refused to consider his grievance on the ground that Stanton's arbitration request was too late. Stanton then brought a federal district court proceeding against both employer and union. The court found that the union's breach of the duty of fair representation it owed Stanton caused the lateness problem. As a remedy, the court, while retaining jurisdiction of Stanton's case, ordered the matter returned to the arbitration panel for consideration of the merits of the grievance. The panel decided against Stanton on the merits. Stanton now appeals the court's remedial decision, arguing inter alia that the court, not the arbitration panel, ought to have considered his grievance on its merits. We disagree and affirm the decision of the district court.

* Stanton is a pilot. In 1973, he worked for Delta Air Lines and was a member of a union, the Air Line Pilots Association ("ALPA"). In July 1973 he was arrested and charged with marijuana-related crimes. Because of his arrest, he stopped flying. He was tried and acquitted in 1975. After the acquittal Delta was willing to take Stanton back to work, but Stanton and Delta were unable to agree about whether Stanton should receive back pay and other benefits for the period after his arrest when he was not working.² 

The disagreement centered on the proper characterization, under the collective bargaining contract, of the period during which Stanton was out of work. Delta claimed that Stanton had taken a "personal leave." Under the contract, a "personal leave" is voluntary; when a pilot on personal leave returns to work, he does not receive back wages or disability benefits for injuries suffered in the interim. Stanton claimed that his leave amounted to a company-imposed suspension which under the contract is a "holding out of service." If so, Stanton is entitled to back pay and benefits. Although Stanton wrote a letter clearly requesting a "personal leave," he argued that he wrote this letter only because the company threatened to fire him if he did not do so. He added that Delta promised him it would reinstate him with back pay and benefits if he was acquitted. He stated that, had he only known at the time about the "back pay" consequences of requesting a "personal leave," he would never have requested one, or, having done so, he would immediately have filed a grievance charging Delta with coercion. Finally, Stanton pointed out that, after requesting personal leave from Delta, he had consulted with union officials, who, in his view, ought to have advised him immediately to file a grievance.

The matter finally came before the Delta Air Lines System Board of Adjustment ("System Board") for a decision on the merits, after the Board had first held the application untimely and the lower court had returned the case to the Board upon finding that the untimeliness was caused by the union's breach. The System Board rejected appellant's claims of coercion and misrepresentation.³  It relied on credited testimony of other airline officials that no threats had been made and on appellant's own testimony that his action in requesting a leave was voluntary. The Board also noted the absence of evidence of any special understanding as to back pay and benefits. And, it concluded that the preponderance of the evidence was against a reasonable belief in any such entitlement. Appellant now claims that the remand to the Board was improper and that the court should have decided the merits of the grievance.⁴ 

II

The Supreme Court has held that "(t)he appropriate remedy for a breach of a union's duty of fair representation must vary with the circumstances of the particular breach." Vaca v. Sipes, 386 U.S. 171, 195, 87 S. Ct. 903, 919, 17 L. Ed. 2d 842 (1967). In particular, "an order compelling arbitration should be viewed as one of the available remedies when a breach of the union's duty is proved." Id. at 196, 87 S. Ct. at 920. The sole issue here is whether the district judge appropriately ordered that remedy in this case.

There are strong reasons militating in favor of a remand for arbitration in a case such as this one. The courts have consistently favored grievance arbitration as a decentralized, informal method for settling industrial disputes. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S. Ct. 1358, 1360, 4 L. Ed. 2d 1424 (1960); Sear v. Cadillac Automobile Co. of Boston, 654 F.2d 4, 7 (1st Cir. 1981). Indeed, "grievance machinery under a collective bargaining agreement is at the very heart of the system of industrial self-government." United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, 80 S. Ct. 1347, 1351, 4 L. Ed. 2d 1409 (1960). The policy favoring arbitration extends with particular force to arbitration by "system boards of adjustment." As we have previously explained in De La Rosa Sanchez v. Eastern Airlines, Inc., 574 F.2d 29, 31-32 (1st Cir. 1978), these boards are created by the Railway Labor Act "for the resolution of disputes between an air carrier and its employees.... (T)hey are the 'mandatory, exclusive and comprehensive system for resolving grievance disputes.' Brotherhood of Locomotive Engineers v. Louisville & Nashville Railroad Co., 373 U.S. 33, 38 (83 S. Ct. 1059, 1062, 10 L. Ed. 2d 172) (1963)." Ordinarily, courts do not even have "jurisdiction over the merits of any employment dispute subject to determination by a system board of adjustment. Andrews v. Louisville & Nashville Railroad Co., 406 U.S. 320 (92 S. Ct. 1562, 32 L. Ed. 2d 95) (1972)." Id. at 32. See also Air Line Pilots Association v. Eastern Air Lines, Inc., 632 F.2d 1321, 1323 (5th Cir. 1980). There is, of course, an exception (invoked here) allowing a court jurisdiction to determine whether a union has represented the employee properly. Czosek v. O'Mara, 397 U.S. 25, 90 S. Ct. 770, 25 L. Ed. 2d 21 (1970) (Railway Labor Act); Glover v. St. Louis-San Francisco Railway Co., 393 U.S. 324, 89 S. Ct. 548, 21 L. Ed. 2d 519 (1969) (Railway Labor Act). Cf. Vaca v. Sipes, supra. But, given the strong pro-arbitration policies of the Railway Labor Act, this exception must be interpreted narrowly. Cf. Sear v. Cadillac Automobile Co. of Boston, 654 F.2d at 7. Thus, the burden here rests on those opposed to arbitration as a remedy to demonstrate why it is unsuitable.

This burden has quite clearly not been met. The arbitration system at issue here did not previously "fail" in any sense. Rather, it had simply not considered Stanton's grievance on the merits. There is no reason to believe it could not deal with that grievance effectively, once the relevant procedural obstacle was removed. Indeed, the subject matter of the grievance-the meaning of terms in the contract, and the existence of "pressure" or "misrepresentation"-involves in part an understanding of the ordinary expectations of the work place; it is thus particularly well suited for grievance arbitrators. See Goclowski v. Penn Central Transportation Co., 571 F.2d 747, 755 (3d Cir. 1977).

Most important, the union, which failed to represent Stanton properly, was not itself involved in the pressure or the misrepresentation about which Stanton complained. The union's fault in this case refers exclusively to the timeliness of Stanton's recourse to the grievance system. Cf. Czosek v. O'Mara, 397 U.S. at 29-30, 90 S. Ct. at 773-74. Indeed, Stanton agrees that the union was not approached until after he had requested leave from Delta. Thus, in this case, unlike Glover v. St. Louis-San Francisco Railway Co., supra, union and employer were not together involved in the creation of the employee's basic grievance. See Raus v. Brotherhood of Railway Carmen of United States & Canada, 663 F.2d 791 et seq. (8th Cir. 1981); Richins v. Southern Pacific Co., 620 F.2d 761, 762 (10th Cir.), cert. denied, 449 U.S. 1110, 101 S. Ct. 918, 66 L. Ed. 2d 838 (1981); Price v. Southern Pacific Transportation Co., 586 F.2d 750, 752 (9th Cir. 1978). Cf. Bagnall v. Air Line Pilots Ass'n, 626 F.2d 336, 342-44 (4th Cir.), cert. denied, 449 U.S. 1125, 101 S. Ct. 943, 67 L. Ed. 2d 112 (1981); Williams v. Pacific Maritime Ass'n, 617 F.2d 1321, 1327-28, n.13 (9th Cir.), cert. denied, 449 U.S. 1001, 101 S. Ct. 896, 66 L. Ed. 2d 827 (1981); Carroll v. Brotherhood of Railroad Trainmen, 417 F.2d 1025, 1027 (1st Cir.), cert. denied, 397 U.S. 1039, 90 S. Ct. 1359, 25 L. Ed. 2d 650 (1970). There is no basis for saying that for the employee to look to arbitration to remedy a grievance would be "wholly futile." Glover v. St. Louis-San Francisco Railway Co., 393 U.S. at 330, 89 S. Ct. at 551.

While these considerations suggest remand was proper, appellant Stanton makes three arguments to the contrary. First, he claims that the two company-designated representatives on the System Board when it made its initial procedural decision were individuals who previously had been personally involved in handling Stanton's case. This fact, Stanton argues, destroys the Board's "impartiality," see Wells v. Southern Airways, Inc., 517 F.2d 132, 134 (5th Cir.), cert. denied, 425 U.S. 914, 96 S. Ct. 1512, 47 L. Ed. 2d 765, 425 U.S. 1000, 96 S. Ct. 2217, 48 L. Ed. 2d 824 (1976), deprives the process of a "minimum" level of "integrity," cf. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567, 96 S. Ct. 1048, 1057-58, 47 L. Ed. 2d 231 (1976), and amounts to "repudiation" by the employer of the whole grievance arbitration process, see Vaca v. Sipes, 386 U.S. at 185, 87 S. Ct. at 914.

We do not accept this argument. Since a system board, unlike an administrative agency or a court, is deliberately made up of employer and union representatives designedly familiar with the work place,⁵  appellant's "fair process" argument is not quite so telling as he claims. Cf. Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89, 99 S. Ct. 399, 58 L. Ed. 2d 354 (1979); United Steelworkers of America v. Union Railroad Co., 648 F.2d 905, 911-12 (3d Cir. 1981); Arnold v. United Air Lines, Inc., 296 F.2d 191, 195 (7th Cir. 1961). Regardless, we need not decide the point, for the court reversed the procedural decision of the allegedly biased Board, it sent the case back for a decision on the merits to a newly constituted Board, and the "biased" representatives were not members of this new Board.

As to the repudiation question, Stanton's case is even weaker. Unlike the typical arbitration procedure under the Labor Management Relations Act, 29 U.S.C. §§ 151 et seq., the arbitration boards created by the Railway Labor Act are not voluntarily created by contracting parties, but they are bodies mandated by law. Compare Nolde Brothers, Inc. v. Bakery & Confectionery Workers Union, 430 U.S. 243, 250-51, 97 S. Ct. 1067, 1071, 51 L. Ed. 2d 300 (1977), and United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. at 582, 80 S. Ct. at 1352-53 et seq., with International Association of Machinists v. Central Airlines, Inc., 372 U.S. 682, 686, 83 S. Ct. 956, 959, 10 L. Ed. 2d 67 (1963). Thus, whether this type of arbitration can be "repudiated" is uncertain. But even if Delta had the legal power to repudiate the arbitration, its appointment of the two allegedly "biased" representatives to the initial Board does not amount to a repudiation. Obviously, Delta did not intend these appointments as a repudiation. And, given the structure of the system boards, the appointments are neither so shocking nor so likely to taint the workings of the subsequent Board that somehow Delta ought to be "estopped" from using grievance arbitration in Stanton's case. Cf. Vaca v. Sipes, 386 U.S. at 185, 87 S. Ct. at 914; Drake Bakeries, Inc. v. American Bakery & Confectionery Workers, 370 U.S. 254, 260-63, 82 S. Ct. 1346, 1350-52, 8 L. Ed. 2d 474 (1962); Boone v. Armstrong Cork Co., 384 F.2d 285, 289 (5th Cir. 1967). See generally Annot., 29 A.L.R.3d 668 (1970).

Second, Stanton claims that the reconstituted System Board lacked the requisite impartiality because the union members of the Board, fearing potential union liability for Stanton's attorney's fees, were biased against him. We see no merit in this argument. For one thing, the union is liable to Stanton, not for damages caused by Delta's acts, but, rather, only for any increase in those damages brought about by its own failure to give adequate advice to Stanton about processing his grievance. Vaca v. Sipes, 386 U.S. at 197-98, 84 S. Ct. at 920-21. These additional damages-apparently consisting of additional legal costs-were incurred (by Stanton or by his lawyer) whether or not Stanton won on the merits of his grievance. See Del Casal v. Eastern Airlines, Inc., 634 F.2d 295, 301-02 (5th Cir.), cert. denied, --- U.S. ----, 102 S. Ct. 386, 70 L. Ed. 2d 206, 108 L.R.R.M. 2656 (1981); Cf. Gorman, Labor Law, 722-724 (1976). For another thing, even if some special contractual arrangement (such as a contingent legal fee arrangement) made those costs collectible from the union only in the event of Stanton's victory on the merits (a point we do not decide), this fact, in our judgment, would not be so likely to create serious bias as to outweigh the strong reasons leading the district court to remand the grievance for arbitration on its merits. At the very least, where the point of conflict between union and employee is comparatively minor, arbitration is not to be avoided simply because "an aggrieved employee's prosecution of his claim runs the risk of making his union an adversary...." Justice requires a fair tribunal, but not necessarily an "optimal" one. Haney v. Chesapeake & Ohio Railroad Co., 498 F.2d 987, 992 (D.C. Cir. 1974).

Third, Stanton claims that the merits of his grievance should not have been sent back for arbitration because the jury, in deciding that the union did not represent him fairly, implicitly decided that he was right on the merits. The jury, however, did not decide the merits explicitly or implicitly. Rather, it decided only that the union breached its duty of fair representation. To make such a decision, it must have felt that Stanton had a plausible claim on the merits, perhaps even a fairly strong claim, for the union is not under a duty to represent employees who are raising frivolous matters. But the jury need not have decided that Stanton had a claim that he was bound to win. Although counsel for Delta Airlines made several remarks to the jury that suggested they should find for the union unless Stanton had a winning claim on the merits,⁶  the district judge made no such suggestion. To the contrary, he correctly instructed the jury in a manner that allowed it to find against the union without finding that Stanton had a winning case on the merits.⁷  Stanton's counsel told the court that he had "no objection to any part of the charge whatsoever and that it (is) a completely fair charge." And, nowhere does the record suggest any failure by the jury to comply with its "duty ... to follow the law, as it is laid down by the court." United States v. Battiste, 2 Sum. 240, 243, 24 F. Cas. 1042, 1043 (No. 14,545) (C.C.D. Mass. 1835).

For these reasons, the judgment of the district court is affirmed.

Affirmed.