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LEBOUTILLIER v. AIRLINE PILOTS ASSN.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


November 21, 1984

David LEBOUTILLIER, Plaintiff,
v.
AIRLINE PILOTS ASSOCIATION, INTERNATIONAL AND TRANS WORLD AIRLINES, INC., Defendants

The opinion of the court was delivered by: GREENE

MEMORANDUM

 HAROLD H. GREENE, District Judge.

 This is an action by a former pilot-employee of Trans World Airlines (TWA) against that airline and against the Air Line Pilots Association (ALPA) *fn1" for reinstatement *fn2" and other relief. Presently before the Court are defendants' motions for summary judgment.

 I

 TWA and ALPA have for many years been operating under an "agency shop" agreement which requires those TWA pilots who are not members of the union to pay to that organization a service charge equivalent to the regular union dues. See section 25 of the current agreement between TWA and ALPA. As a non-member of ALPA, plaintiff was required to pay this charge. However, as one who regards himself as a dissenter from the imposition of this kind of charge, *fn3" plaintiff has made his displeasure with the fee known by being repeatedly delinquent in his payments, and then, at almost literally the last minute, when the union was recommending his discharge or when the discharge was about to become final, making up the delinquency. *fn4"

 These controversies came to a head in June 1983. On April 12 of that year, ALPA advised plaintiff that his account was delinquent in the amount of $386.38, and that under the agreement, unless payment was received within fifteen days, the union would request his discharge. *fn5" Plaintiff took no action. On May 25 ALPA requested TWA to discharge him, and on June 8 and 9, the company advised plaintiff of his termination effective June 22.

 On June 17 and June 23, plaintiff sent in two checks to cover the delinquency, but this fact did not become known to the union staff until June 24. In the meantime, TWA had terminated plaintiff's employment. On June 24, as soon as the union learned that a check had been received prior to the critical date -- June 22 -- it requested TWA to reinstate plaintiff. However, before the company took the necessary action, the union further learned that both checks sent in by plaintiff had been dishonored by the bank for lack of sufficient funds, and, in order to have time to study what it should do next, it requested TWA to withhold plaintiff's reinstatement until further notice. Eventually, *fn6" ALPA advised plaintiff that it would not request his reinstatement, and this lawsuit followed.

 II

 Sections 25(D) and (E) of the agreement between TWA and ALPA provide that a pilot who believes that his discharge for failure to pay the service charge obligation was improper may invoke a protest procedure. That procedure includes an appeal to the TWA vice president for labor relations, to be followed by a hearing before a neutral arbitrator. During the protest procedure, the employee retains his employment. Neither after his discharge on June 22 nor after the failure of the union to request his reinstatement in July, did plaintiff invoke the contractual remedies.

 National labor policy favors the resolution of disputes such as these through contractually-negotiated mechanisms, and the failure to employ such mechanisms acts as a bar to litigation. See Clayton v. UAW, 451 U.S. 679, 101 S. Ct. 2088, 68 L. Ed. 2d 538 (1981); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563, 96 S. Ct. 1048, 1055, 47 L. Ed. 2d 231 (1976).

 In his opposition to the motion for summary judgment, plaintiff offered no explanation or excuse for his failure to exhaust his contractual remedies other than to question whether he needs to do so when defendants have allowed other delinquent pilots to cure their agency fee problems without utilizing those remedies. *fn7" Even assuming that plaintiff's premise is correct (but see note 9, infra), it would not excuse his failure to employ the contractual procedure, for it is precisely issues such as these that should be submitted to those most familiar with labor-management relations in the particular industry or company rather than being taken directly to the courts. See, e.g., Washington Hospital Center v. Service Employees International Union, 746 F.2d 1503 (D.C.Cir. 1984). Nor could it reasonably be argued that resort to the procedures would have been futile in this case because of the presumed hostility of the decision-makers. *fn8" The agreement between TWA and ALPA establishes a system of expeditious dispute resolution by arbitrators who are entirely neutral.

 Since plaintiff failed to exhaust his contractual remedies, his action in court is subject to dismissal.

 III

 On the merits -- assuming arguendo that the Court may properly reach the merits -- plaintiff fares no better.

  Plaintiff's case rests on two contentions. *fn9" First, he argues that he should not have been discharged on June 22 because he had sent in his check prior to that time. That argument, of course, overlooks the fact that the check was a worthless piece of paper for there were no funds in the bank to back it. *fn10" Second, he contends that his discharge should have been rescinded when on June 24 the union learned that he had previously mailed in two checks. The short answer is that the union did just that: they immediately requested plaintiff's reinstatement. That reinstatement request was halted in its tracks, and properly so, both by the union and by TWA, when it was discovered that plaintiff's two checks were worthless. If plaintiff was to be reinstated, notwithstanding his game-playing, it was up to him to carry the reinstatement process forward by invoking the contractual protest procedure. Having once again created a confusing situation in his desire to frustrate the agency fee process, plaintiff could not sit back, expect the union and the company on their own to extricate him and, upon their failure to do so, expect the Court to award him damages.

 The motions for summary judgment filed by both ALPA and TWA will be granted.


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