A union representing more than 9,000 Southwest Airlines pilots will get to proceed in court with its allegations the airline unfairly intimidated and disciplined its members after the Fifth Circuit found the lawsuit’s claims were sufficient to prevent the dispute from being handled in arbitration.
The Monday ruling from a three-judge panel of the Fifth Circuit reverses a September 2023 order from U.S. District Judge Barbara M.G. Lynn that had determined the lawsuit, which alleges violations of the Railway Labor Act, must be handled in arbitration. The Fifth Circuit found the so-called “anti-union animus” exception applied here to give courts jurisdiction over the litigation.
“These facts sufficiently support the union’s claim that Southwest intended to ‘weaken’ or ‘destroy’ the operational capacity of the union,” the Fifth Circuit wrote.
The union is alleging the airline has a history of thwarting its efforts to represent two elite segments of Southwest Airlines pilots, those known as “check pilots” and those one tier above that called “standards check pilots.” Only about 300 of the airline’s roughly 9,000 pilots are check pilots and only 30 of them have qualified as standards check pilots.
In particular, the union alleges that Southwest Airlines has unilaterally, without bargaining with the union, established the rules and pay governing check pilots and has routinely intimidated check pilots and standards check pilots with threats that they would lose their special qualifications if they affiliated with the union.
The result of that practice, the union alleges, is that check pilots and standards check pilots are “uncomfortable” contacting the union for representation and have also stopped attending union open house meetings.
To fight that trend and to bolster its representation of check pilots, the union in 2018 formed a Check Pilot Committee and put out a call for pilots of that caliber to volunteer to serve. In turn, the union alleges, Southwest Airlines updated its flight operations training manual to prohibit check pilots from participating in any union committees.
The prohibition was later rescinded, but the union alleges Southwest continued to engage in anti-union actions via “whisper campaigns and private admonishments against pilots from getting involved” with the union.
“Although this policy was ultimately retracted, its publication bolsters the Union’s allegations that Southwest waged a campaign against Union representation for check pilots,” the Fifth Circuit held.
The airline’s “campaign against union activity came to a head when it allegedly stripped the check-pilot qualifications from one pilot, Captain Timothy Roebling, for his decision to join the Check Pilot Committee,” the Fifth Circuit wrote in its opinion.
Roebling was selected to become a check pilot in 2013 and later received standards check pilot qualifications. Despite being allegedly warned of the consequences, Roebling joined the union committee as a cochair in June 2019. Roebling alleges he was shunned by his peers, taken off projects, not assigned to new projects and called “traitor” and “turncoat” by fellow check pilots.
He stepped down from the committee in December 2020, according to the opinion, and months later was terminated from his check pilot duties.
Southwest has alleged the action was justified and based on Roebling’s inappropriate comments in a private text message group with other pilots. The union alleges the justification is pretextual.
The union filed this lawsuit in October 2021, asking the court to prohibit Southwest from disciplining union members and from “unlawfully interfering with” the union. The suit also sought Roebling’s reinstatement as a check pilot.
A month after Judge Lynn sided with Southwest and tossed the complaint, the pilots union filed notice of appeal in October 2023.
The crux of the issue on appeal is whether the allegations constitute a “minor dispute” or a “major dispute.” Under the RLA, a minor dispute — which “contemplates the existence of a collective agreement” and “relates either to the meaning or proper application of a particular provision” — is subject to “compulsory and binding arbitration” before the National Railroad Adjustment Board, the Fifth Circuit explained in its 18-page ruling. Major disputes, on the other hand, relate to the “formation of collective agreements or efforts to secure them.” Major disputes are subject to a “lengthy process of bargaining and mediation,” the opinion explains.
But two exceptions apply to minor disputes and give federal courts authority to resolve them.
If the “dispute-resolution framework of the RLA is either ineffective . . . or unavailable” or if the actions of the carrier were carried out with an “anti-union animus” intended to weaken or destroy the union, the litigation can stay in court.
Judge Lynn found this case presented a minor dispute and that the anti-union animus exception did not apply. The Fifth Circuit disagreed with the second finding.
“Southwest’s alleged anti-union coercion and threats led to decreased attendance at union events and reduced contact between check pilots and the union, interfering with the representation of check pilots,” the panel wrote. “Southwest’s disciplining of Captain Roebling and removal of him from projects ‘because of his [Union] activity’ further support the union’s allegation that Southwest intended to ‘hamper, impede and hinder’ check pilot representation and isolate check pilots from union activity. Accordingly, the union has sufficiently pleaded the animus exception.”
Chief Judge Jennifer Walker Elrod and Judges Jacques L. Weiner Jr. and Cory T. Wilson sat on the panel.
Southwest Airlines Pilots Association is represented by Joseph Gillespie, Hal Gillespie and James Sanford of Gillespie Sanford.
Southwest Airlines is represented by Robert Sheeder, Clayton M. Davis and Jonathan C. Fritts of Morgan, Lewis & Bockius.
The case number is 23-11065.