The opinion of the court was delivered by: Judge Feinerman
MEMORANDUM OPINION AND ORDER
Wanda Santiago, a retired flight attendant, brought this lawsuit under the Railway Labor Act ("RLA"), 45 U.S.C. § 151 et seq., against United Air Lines, Inc., her former employer, and the Association of Flight Attendants--CWA ("AFA"), the union that represents United flight attendants. Santiago alleges that United violated the RLA by failing to submit to arbitration her grievance regarding recent changes to United's employee travel policy, and further alleges that the AFA violated the RLA by failing to assist her with the grievance. Defendants have moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Docs. 28, 42. Santiago has moved for an injunction against United's implementation of the changes to its travel policy and for an order compelling arbitration. Docs. 4, 5. The motions are denied.
The complaint's well-pleaded facts, though not its legal conclusions, are assumed true on Rule 12(b)(1) and Rule 12(b)(6) motions. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 465 (7th Cir. 2010); Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir. 2010); Patel v. City of Chicago, 383 F.3d 569, 572 (7th Cir. 2004). In evaluating a motion to dismiss, the court must consider "the complaint itself, documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice." Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). The court also must consider additional facts included in the plaintiff's opposition brief, so long as those facts "are consistent with the pleadings." Geinosky, 675 F.3d at 745 n.1; see also Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1039 (7th Cir. 2012) (per curiam); Flying J Inc. v. City of New Haven, 549 F.3d 538, 542 n.1 (7th Cir. 2008). The following sets forth the facts as favorably to Santiago as permitted by the complaint and other materials that may be considered on a Rule 12(b) motion.
United is a commercial airline. AFA is the union that represents United flight attendants in matters related to the AFA's collective bargaining agreement ("CBA") with United. Santiago was a United flight attendant for thirty-three years until she retired in December 2009. As a retiree, Santiago is eligible for United's travel pass program, which permits current and former United employees to fly for little or no cost. In March 2011, United announced changes to the program that favor current employees over retirees with respect to boarding priority. Believing that those changes altered the terms of the 2005-2010 United-AFA CBA, Santiago asked United's legal department how the changes had come about and who represented retired United flight attendants. United attorney John Nelson told Santiago that nobody represented the retired flight attendants. Santiago asked Nelson what she should do, and he told her to raise her concerns with United CEO Jeff Smisek. On June 1, 2011, during a question and answer session, Santiago asked Smisek who represented United retirees. Smisek told Santiago that "no one" did and that she could "sue United if she did not like the answer."
On August 27, 2011, Santiago sent certified letters to Nelson and Smisek asking that her grievance regarding the change to the boarding priority policy be submitted to the United-AFA System Board of Adjustment, the arbitral body that handles disputes arising under the United-AFA CBA. Santiago also sent a certified letter to the AFA asking for assistance in pursuing her grievance. After failing to receive a response, Santiago filed this suit alleging that United violated its duty under the RLA to submit her grievance to arbitration before the System Board and that the AFA violated its duty under the RLA to fairly represent her in the grievance process. As relief, Santiago seeks an order compelling arbitration before the System Board, an order prohibiting United from implementing the new boarding priority policy, damages, and attorney fees.
I. Defendants' Motions to Dismiss
"The RLA was enacted to encourage collective bargaining by . parties in order to prevent, if possible, wasteful strikes and interruptions of commerce." Air Line Pilots Ass'n, Int'l v. United Air Lines, Inc., 802 F.2d 886, 895 (7th Cir. 1986) (quoting Detroit & Toledo Shore Line R.R. v. United Transp. Union, 396 U.S. 142, 148 (1969)) (internal quotation marks omitted). Congress amended the RLA in 1936 to cover the airline industry. See id. at 894 n.5; 45 U.S.C. § 181. The RLA provides that "[e]mployees . have the right to organize and bargain collectively through representatives of their own choosing." 45 U.S.C. § 152, Fourth. The RLA requires unions that bargain collectively to fairly represent union members. See Steele v. Louiseville Nashville R.R., 323 U.S. 192, 202-03 (1944) (the RLA "impose[s] on the bargaining representative of a craft or class of employees the duty to exercise fairly the power conferred upon it in behalf of all those for whom it acts"). The RLA thus "affords an employee an implied right of action against his union for breach of the duty of fair representation." Steffens v. Bhd. of Ry., Airline & Steamship Clerks, 797 F.2d 442, 445 (7th Cir. 1986).
"The RLA provides for mandatory arbitration over labor disputes arising out of the interpretation of collective bargaining agreements in the railway and airline industries." Miller v. Am. Airlines, Inc., 525 F.3d 520, 524 (7th Cir. 2008); see also Tice v. Am. Airlines, Inc., 288 F.3d 313, 318 (7th Cir. 2002) ("only the arbitral boards convened under the aegis of the Railway Labor Act have the authority to determine the rights conferred by a collective bargaining agreement in the airline industry"). The RLA sets forth the following procedures for the handling of such disputes:
The disputes between an employee or group of employees and a carrier or carriers by air growing out of grievances, or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions . shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to an appropriate adjustment board, as hereinafter provided, with a full statement of the facts and supporting data bearing upon the disputes.
It shall be the duty of every carrier and of its employees, acting through their representatives . to establish a board of adjustment of jurisdiction not exceeding the jurisdiction which may be lawfully exercised by system, group, or regional boards of adjustment, under the authority of section 153 of this title. 45 U.S.C. § 184. The United-AFA CBA established the United-AFA System Board of Adjustment to handle grievances arising under the CBA. Doc. 44-8 at 3.
In the airline industry, the RLA's "duties, requirements, penalties, benefits, and privileges" apply only to "carriers by air and their employees." 45 U.S.C. § 182. The RLA defines "employee" as "every person in the service of a carrier (subject to its continuing authority to supervise and direct the manner of rendition of his service) who performs any work defined as that of an employee or subordinate official in the orders of the Surface Transportation Board." 45 U.S.C. § 151, Fifth. United and the AFA seek dismissal on the sole ground that Santiago, a retiree, is not an "employee" within the meaning of the RLA. Docs. 28, 42.
Defendants are wrong to frame this argument in jurisdictional terms under Rule 12(b)(1). As the Seventh Circuit has repeatedly explained, an argument that a plaintiff cannot bring suit under a particular statute-either because the statute confers no right to sue at all, or because the plaintiff is not among those permitted to sue under the statute-implicates the suit's merits, not the district court's jurisdiction to hear the suit. See NewPage Wis. Sys., Inc. v. United Paper, Steel & Forestry, Rubber, Mfg., Energy Allied Indus. & Serv. Workers Int'l Union, 651 F.3d 775, 777 (7th Cir. 2011); Kohen v. Pac. Mgmt. Inv. Co., LLC, 571 F.3d 672, 677 (7th Cir. 2009); Harzewski v. Guidant Corp., 489 F.3d 799, 803-04 (7th Cir. 2007); Ameritech Benefit Plan Comm. v. Commc'n Workers of Am., 220 F.3d 814, 819 (7th Cir. 2000); Fry v. UAL Corp., 84 F.3d 936, 939 (7th Cir. ...