Unpublished Disposition, 842 F.2d 1294 (9th Cir. 1988)

No. 87-5603.

United States Court of Appeals, Ninth Circuit.

Before O'SCANNLAIN and LEAVY, Circuit Judges, and ORRICK,^**  District Judge.

MEMORANDUM^* 

The Association of Professional Flight Attendants appeals the district court's decision that (1) American Airlines' institution of an in-flight liquor audit program constituted a "minor" dispute under the Railway Labor Act, and (2) further federal litigation was barred by the neutral arbitrator's decision. We affirm.

FACTS AND PROCEEDINGS BELOW

American Airlines has had a continuing problem with theft of liquor, as well as liquor and headphone revenues. For this reason, American's Audit and Security Department developed an in-flight audit procedure.

The audit procedure was used only six times during the 260,000 flights American flew in the seven-month period between December 1984 and July 1985. An in-flight audit team documented liquor and headphone sales by all flight attendants. Following the audits on three flights, attendants were detained and interviewed. During the interviews, only the flight attendant and two representatives of the Security Department were present; neither the flight service supervisor nor the union representative was included. If a flight attendant was suspected of theft upon completion of the interview, the auditor recommended that the flight attendant be withheld from service pending further investigation.

Because American implemented the liquor audit program without notice to or negotiation with the Association of Professional Flight Attendants (APFA), the exclusive collective bargaining representative of the flight attendants, APFA sought a temporary restraining order in the district court. It alleged that (1) the liquor audit program was a "major dispute" within the meaning of the Railway Labor Act ("RLA") because it was new, unprecedented, and not envisioned by the collective bargaining agreement; (2) there was a contractual right to union representation at the flight attendant's request under the collective bargaining agreement; and (3) the program denied a statutory right of flight attendants to union representation upon request.

The court first enjoined American from detaining any flight attendant who requested and was denied union representation, and later determined that APFA's claim to union representation during security department interviews created a "minor dispute." Such disputes, under the RLA, are to be resolved exclusively through arbitration under the System Board of Adjustment procedures.

Accordingly, APFA filed for arbitration, and an arbitration hearing was held. The arbitrator rejected APFA's claim, holding that Article 31R of the collective bargaining agreement did not contemplate union representation at theft investigations where no supervisor is present.

APFA then petitioned the district court to vacate the arbitrator's award and moved for summary judgment. APFA's argument for declaratory relief would have had the effect of grafting the judicial construction of union representation allowed under the National Labor Relations Act ("NLRA") to the RLA. The petition and the motion were denied.

American filed a motion for summary judgment. The court granted the motion. APFA timely filed this appeal.

DISCUSSION

APFA argues that this is a major dispute because American's in-flight audit program was a completely new change in procedures. Our review is de novo. International Ass'n of Machinists & Aerospace Workers v. Aloha Airlines, Inc., 790 F.2d 727, 730 (9th Cir.), cert. denied, 107 S. Ct. 400 (1986) (grant of summary judgment reviewed de novo) .

A major dispute relates to the formation of collective bargaining agreements or efforts to secure them. Switchmen's Union v. Southern Pac. Co., 398 F.2d 443, 445 (9th Cir. 1968).

A minor dispute involves a disagreement over the application or interpretation of an existing collective bargaining agreement. International Ass'n of Machinists & Aerospace Workers v. Aloha Airlines, Inc., 776 F.2d 812, 815 (9th Cir. 1985). Any controversy involving the "meaning or proper application of a particular provision in an existing collective bargaining agreement" is a minor dispute, "to be resolved through binding arbitration before an adjustment board." International Ass'n of Machinists & Aerospace Workers v. Republic Airlines, 761 F.2d 1386, 1390 (9th Cir. 1985) (citations omitted).

To determine whether particular fact situations create a major or minor dispute, our court applies the test we enunciated in Switchmen's. Where the position of one party is expressly or arguably predicated on the terms of the agreement, the question involves a minor dispute. Switchmen's, 398 F.2d at 447. See also Aloha Airlines, Inc., 776 F.2d at 816 (applies Switchmen's test); O'Donnell v. Wien Air Alaska, 551 F.2d 1141, 1146-47 (9th Cir. 1977) (uses Switchmen's to distinguish major from minor). The Switchmen's test is not a stringent one in view of the substantial and long-standing interest in removing labor disputes from the federal courts and placing them in the expert hands of the arbitration facilities. O'Donnell, 551 F.2d at 1146-47.

Thus, the only question before this court is whether American's position was arguably predicated on the terms of the collective bargaining agreement so as to create a minor dispute.¹  In examining the language of a collective bargaining agreement, we are mindful that it must be read in the context of the practices of the particular industry. Anaconda Co. v. Great Falls Mill & Smeltermen's Union, 402 F.2d 749, 752 (9th Cir. 1968) (quoting United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 581-82 (1960)). Looking at the evidence in the light most favorable to APFA, we examine four factors in APFA's claim that American's in-flight audit program was outside the terms of the agreement: (1) probable cause, (2) surveillance, (3) detention and (4) questioning.

APFA first claimed that by auditing every attendant on a given aircraft, American lacked probable cause for the investigation. American's regular practice utilized informants or observers to establish probable cause. We find that the use of computer programs to identify "high-risk" flight attendants was a reasonable extension of established practice.

On the second issue of surveillance, APFA asserted it was a new procedure to put observers onboard to surveil the entire flight crew. We again stress our acceptance of the reasonable evolution of security techniques. To prove the validity of an in-flight audit, the security department had to audit all attendants on the same flight.

Third, APFA strongly claimed that it was a new procedure to detain an entire flight crew while only a few were under suspicion. We find it reasonable that all attendants on the flight should be detained as witnesses until the auditors had questioned everyone. It would have been unreasonable to let the witnesses leave before the questioning of all attendants had been completed. Further, the airline routinely detained crew members for investigation of wrongdoing. They had also detained an entire crew when necessary after incidents such as attempted hijacking. This was a not unreasonable extension of that practice.

On the fourth issue of questioning the attendants without a union representative being present, we find that this was again established practice. Routine Security Department questioning did not include the presence of anyone outside the Security Department and the flight attendant. The evidence further shows that in past contract negotiations, APFA had agreed to no union representation during Security Department investigations.

We therefore find that American's position was predicated on the terms of the existing collective bargaining agreement, and the issue of the interpretation of the existing contract was properly referred to System Board Arbitration.

APFA argues that we should vacate the arbitrator's award. An arbitration award under the RLA is subject to very narrow ultra vires judicial review. See International Ass'n of Machinists & Aerospace Workers Dist. Lodge # 19 v. Southern Pac. Transp. Co., 626 F.2d 715, 717 (9th Cir. 1980); Brotherhood of Locomotive Eng'rs v. Atchison, Topeka & Santa Fe Ry. Co., 768 F.2d 914, 922 (7th Cir. 1985). Judicial review of Adjustment Board orders is limited to three specific grounds: (1) failure of the Adjustment Board to comply with the requirements of the Railway Labor Act; (2) failure of the Adjustment Board to confine itself to matters within the scope of its jurisdiction, and (3) fraud or corruption. Union Pac. Ry. Co. v. Sheehan, 439 U.S. 89, 93 (1978).

APFA does not argue that the System Board violated any of these grounds. Instead, they assert that the arbitrator failed to draw the essence from the contract. We will not review a board's interpretation for its soundness, but only to discover whether it was "rationally inferable from the letter and purpose of the collective bargaining agreement." International Ass'n of Machinists, 626 F.2d at 717.

At issue between the parties at arbitration was whether Article 31R of the collective bargaining agreement included a right to union representation during investigative proceedings by the Security Department. The arbitrator examined the history and purpose of Article 31R to establish that it did not cover union representation at security investigations. We do not review the accuracy of that finding, but rather whether it was "rationally inferable." We find that it was, and therefore we must affirm the arbitrator's decision.

3. "Weingarten Rights"

APFA made two additional arguments: first, that the arbitrator should not have ruled on APFA's assertion of Weingarten rights, and additionally that this court should engraft Weingarten rights established in N.L.R.B. v. Weingarten, 420 U.S. 251 (1975) under the National Labor Relations Act to the Railway Labor Act (a statutory right under the N.L.R.A. to have union representation at investigatory interviews which an employee reasonably believes might result in disciplinary action against him.)

The arbitrator's jurisdiction extends over questions of law raised by the parties. Sheehan, 439 U.S. at 93. APFA raised the Weingarten issue before the arbitrator, and his ruling must stand. We therefore do not reach the merits of APFA's argument that Weingarten rights should be extended to the Railway Labor Act.

We conclude that the institution of American's in-flight audit procedure constituted a minor dispute, upon which a neutral arbitrator has ruled. We affirm the district court's grant of summary judgment for American.

AFFIRMED.