SAN FRANCISCO – A panel of judges on the U.S. Court of Appeals for the 9th Circuit on Sept. 26 reversed part of a lower court's regarding arbitration between American Airlines, an employee and a union.
The 9th Circuit affirmed the court's order for arbitration between the plaintiff and American Airlines, but reversed the order for arbitration between the plaintiff and his union.
The panel of judges for this case consisted of Circuit Judges Marsha S. Berzon and N. Randy Smith, with Berzon delivering the opinion. Sitting by designation on the panel was Judge P. Kevin Castel, U.S. district judge for the Southern District of New York.
As stated in the court’s ruling, the judges said, “With respect to the retaliation claim against (Robert Steven) Mawhinney’s employer, American Airlines, we affirm. The airline did not waive its right to arbitrate by waiting to move to compel until after an agency investigation into its conduct was complete, nor is there reason to believe private AIR21 retaliation claims are inherently nonarbitrable.”
They continued by saying, “With respect to the retaliation claim against Mawhinney’s union, Transportation Workers Union, Local 591, we reverse. The union is not a party to the arbitration provision at issue in these cases and is not otherwise entitled to enforce the provision.”
The panel of judges convened to consider if the U.S. District Court for the Southern District of California was correct in ordering arbitration of Mawhinney’s claims for whistleblowing retaliation brought under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century.
Motions to dismiss were filed by both American Airlines, the employer, and Transport Workers Local 591. After consideration of the motions and other legal documents, the panel denied motions to dismiss the appeals, but affirmed the arbitration of plaintiff Mawhinney’s claim against his former employer. However, the panel reversed the district court’s order for arbitration of Mawhinney’s claim against his union.
The cause of this legal action began when Mawhinney, an aircraft maintenance technician for American Airlines in San Diego, was fired in 2001. He believed his dismissal came in retaliation for his whistleblowing activity and he filed a complaint with the Department of Labor (DOL), claiming protection through AIR21, which forbids the firing of workers who alert air carriers or federal agencies about any violation of Federal Aviation Administration regulations for air carrier safety. In his complaint to DOL, Mawhinney named as respondents both American Airlines and the Union, as he believed the two had joined in the alleged retaliation against him.
In response, American Airlines filed a motion to compel arbitration in April 2014, which was granted by the administrative law judge. Mawhinney then appealed the order to the DOL’s Administrative Review Board (ARB), which in January 2016 reversed. With respect to the latter, the ARB noted that under AIR21, the only specified federal forum for enforcing a DOL order disposing of a retaliation complaint is a district court.
In response, the airline applied for a second arbitration, to which Mawhinney refused. Thereafter, both the airline and the union filed suit in district court to compel arbitration. The court granted both motions.
In conclusion, Berzon said that the appeals panel denied the motions of both American Airlines and Transportation Workers Union, Local 591 to dismiss the district court’s order for arbitration. She stated, as quoted in the panel’s ruling, “As the present appeals are not interlocutory, the motions to dismiss are denied."
In relation to the union, she said that “applying ordinary principles of agency law, the union is not in a position to enforce the 2002 settlement agreement or the DOL order approving it."