Carter v. Transp. Workers Union of Am.

602 F.Supp.3d 956

Charlene CARTER, Plaintiff,

v.TRANSPORT WORKERS UNION OF AMERICA, LOCAL 556, and Southwest Airlines Co., Defendants.

Civil Action No. 3:17-CV-2278-X

United States District Court, N.D. Texas, Dallas Division.

Signed May 5, 2022

Matthew B. Gilliam, Pro Hac Vice, National Right to Work Legal Defense Foundation Inc., Springfield, VA, Bobby G. Pryor, Matthew D. Hill, Pryor & Bruce, Rockwall, TX, David E. Watkins, Jenkins & Watkins PC, Dallas, TX, Jason Edward Winford, Gordon Rees Scully Mansukhani, LLP, Dallas, TX, for Plaintiff.

Adam S. Greenfield, Cloutman & Greenfield, PLLC, Dallas, TX, Edward B. Cloutman, III, Cloutman & Cloutman, L.L.P., Dallas, TX, for Defendant Transport Workers Union of America Local 556.

Jonathan Evan Clark, Sheppard Mullin Richter & Hampton LLP, Dallas, TX, Michael Arthur Correll, Paulo B. McKeeby, Brian K. Morris, Reed Smith LLP, Dallas, TX, for Defendant Southwest Airlines Co.

MEMORANDUM OPINION AND ORDER

BRANTLEY STARR, UNITED STATES DISTRICT JUDGE

Before the Court are three motions for summary judgment.¹ The Court DENIES them, VACATES the prior scheduling order, and SETS this case for a jury trial beginning Monday, July 5, 2022.² The parties ARE ORDERED to file a joint status report within fourteen days of the issuance of this Order indicating how many jurors and how many days are needed to try this case.³

I. Factual Background

Charlene Carter "is a Christian who believes that abortion is the taking of a human life contrary to the teachings of the Bible and the will of God."⁴ She was also a Southwest Airlines flight attendant for over twenty years. She resigned from the union for Southwest flight attendants (defendant Local 556) in 2013 and was a non-member objector until her termination in 2017. During those four years, Carter was involved in various opposition efforts aimed at the union and the union's then-president, Audrey Stone. Carter supported a recall campaign, posted and sent messages on social media expressing her disapproval of the union and union leadership, and accused the union of corruption. Specifically, she sent many messages to president Stone, who never responded.

The situation escalated when, in January 2017, president Stone and other Southwest flight attendants participated in the Women's March on Washington, D.C. Planned Parenthood was an "exclusive premiere" sponsor of the Women's March.⁵ President Stone and other Southwest flight attendants marched with a banner that read "TWU Local 556 Working Women's Committee, The Union of Southwest Airlines Flight Attendants."⁶ The union used dues and fees to pay for union expenses associated with the Women's March.

Southwest flight attendants, including Carter, who were opposed to the union and engaged in the recall efforts learned about the Women's March and the union's participation. A few weeks later, Carter sent several Facebook messages to president Stone. They contained various criticisms and videos of "aborted bab[ies]."⁷ For example, Carter said in one message that accompanied a video of an "aborted baby":

This is what you supported during your Paid Leave with others at the Women's MARCH in DC.... You truly are Despicable in so many ways ... by the way the RECALL is going to Happen and you are limited in the days you will be living off of all the [Southwest Airlines Flight Attendants] .. cant wait to see you back on line.⁸

President Stone was highly disturbed by Carter's messages and reported them to Southwest. Southwest investigated, determined that Carter had violated Southwest policies, and fired her on March 16, 2017. Carter filed a grievance challenge, and the parties eventually arbitrated the dispute, with the arbitrator concluding that Southwest had "just cause" under the Collective Bargaining Agreement to terminate Carter's employment. Then, Carter filed this suit in federal court. All parties now move for summary judgment.

District courts can grant summary judgment only if the movant shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."⁹ Here, genuine disputes of material fact preclude summary judgment on all of Carter's claims.

II. Railway Labor Act Retaliation Claim Against Southwest and Local 556

Carter asserts a claim against both Local 556 and Southwest alleging that they retaliated against her for exercising her rights under the Railway Labor Act (the Act) to object to union activity and oppose union leadership. As for Local 556, Carter alleges that the union retaliated against her by reporting her activities and speech to Southwest. As for Southwest, Carter alleges that it retaliated against her by terminating her employment. All parties seek summary judgment on this claim.

Southwest and Local 556 contend that Carter does not have a private right of action under the Railway Labor Act, 45 U.S.C. § 152 Third and Fourth, and that, even if Carter has a private right of action, her claims constitute a "minor dispute" that deprives the Court of subject-matter jurisdiction.¹⁰

First , this is not a minor dispute. Minor disputes involve "controversies over the meaning of an existing collective bargaining agreement in a particular fact situation" while "major disputes" involve "the formation of collective bargaining agreements or efforts to secure them."¹¹

Before this matter was transferred to the undersigned, the Honorable Karen Gren Scholer denied Southwest's motion to dismiss Carter's Railway Labor Act retaliation claim on the ground that Carter had plausibly alleged that she engaged in protected speech and activity. Judge Scholer thoroughly analyzed Southwest's argument that Carter's claims were minor disputes, and she rejected it.¹² As Judge Scholer explained, Carter's claims do not rest on and require interpretation of the collective bargaining agreement and do not bring the meaning of any collective bargaining agreement provisions into dispute.¹³ Instead, Carter "alleges that Southwest terminated her employment for speech and activity protected by the [Railway Labor Act] and the Constitution, and that Southwest discriminated against her for her religious beliefs in violation of Title VII."¹⁴ Judge Scholer's conclusions were correct then and remain correct at the summary-judgment stage. This case is about a major dispute.

Second , the Court finds that Carter likely does have a private right of action under § 152 Third and Fourth of the Railway Labor Act. Section 152 Third states:

Representatives, for the purposes of this chapter, shall be designated by the respective parties without interference, influence, or coercion by either party over the designation of representatives by the other; and neither party shall in any way interfere with, influence, or coerce the other in its choice of representatives. Representatives of employees for the purposes of this chapter need not be persons in the employ of the carrier, and no carrier shall, by interference, influence, or coercion seek in any manner to prevent the designation by its employees as their representatives of those who or which are not employees of the carrier.¹⁵

Section 152 Fourth states, in pertinent part:

Employees shall have the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter. 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 use the funds of the carrier in maintaining or assisting or contributing to any labor organization, labor representative, or other agency of collective bargaining, or in performing any work therefor, 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, or to deduct from the wages of employees any dues, fees, assessments, or other contributions payable to labor organizations, or to collect or to assist in the collection of any such dues, fees, assessments, or other contributions ....¹⁶

Courts have interpreted these provisions and the Act generally as granting strong rights and protections to employees and to the unions that represent them. The Act "forbid[s] any limitation upon freedom of association among employees" and "provide[s] for the complete independence ... of employees in the matter of self-organization."¹⁷ "[T]he concept of ‘complete independence’ is inconsistent with forced representation, most especially when that forced representation is at odds with employees’ will and desires."¹⁸

It appears that every court to consider whether employees have a private right of action to pursue their § 152 Third and Fourth rights in a major dispute has answered in the affirmative. And they have done so by applying the Supreme Court's seminal opinion in Cort v. Ash .¹⁹ Cort established a four-factor test for deciding whether a statute lacking an express right of action nevertheless created one impliedly. Those factors are: (1) whether the plaintiff is "of the class for whose especial benefit the statute was enacted;" (2) whether there is "explicit or implicit" "indication of legislative intent" either "to create such a remedy or to deny one;" (3) whether implying a right of action would be "consistent with the underlying purposes of the legislative scheme;" and (4) whether the right of action is "traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a [right] of action based solely on federal law."²⁰ Subsequent Supreme Court opinions indicate that the second factor, legislative intent, is the lodestar of the analysis.²¹

Among the Circuits to have...