United States District Court, N.D. Illinois, Eastern Division
MIKE R. HOOVER, Plaintiff,
UNITED STATES AIRCREW OFFICERS ASSOCIATION and CATHAY PACIFIC AIRWAYS LIMITED, Defendants.
MEMORANDUM OPINION AND ORDER
Virginia M. Kendall, United States District Judge.
Mike R. Hoover sued his employer, Cathay Pacific Airways
Limited, and his union, the United States Aircrew Officers
Association (“USAOA”) under the Railway Labor Act
(“RLA”). Hoover brings a claim against Cathay for
breach of the Collective Bargaining Agreement
(“CBA”) that governs Cathay's relationship
with USAOA and a claim against USAOA for breach of the duty
of fair representation. Both defendants now move to dismiss
the complaint. For the reasons stated here, both motions
(Dkt. 33, 36) are granted.
considering the motions to dismiss, the Court assumes the
truth of the complaint's factual allegations, but not its
legal conclusions. See Munson v. Gaetz, 673 F.3d
630, 632 (7th Cir. 2012). The court must also consider
“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,
” along with additional facts set forth in Hoover's
briefs opposing dismissal, so long as those facts “are
consistent with the pleadings.” Geinosky v. City of
Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). The
following facts are set forth as favorably to Hoover as those
materials allow. See Gomez v. Randle, 680 F.3d 859,
864 (7th Cir. 2012).
is a pilot. He began working for Cathay as a First Officer in
April 2005. (Dkt. 29 ¶ 27.) Hoover is a Freighter pilot
and flies 747 Freighter aircraft. (Id. ¶ 30.)
He was promoted from First Officer to Captain in December
2009. (Id.) His permanent home base, where he starts
and finishes his trips, is Chicago, Illinois. (Id.
¶¶ 30, 57.)
is a Hong Kong-based international airline that offers
passenger and cargo services to its customers. (Id.
¶¶ 12, 21.) It employs pilots in the United States
who operate Passenger and Freighter aircraft. (Id.
¶ 23.) U.S.-based Passenger pilots fly 777 aircraft and
U.S.-based Freighter pilots fly 747 aircraft. (Id.)
Cathay retired its last 747 Passenger aircraft from its
Passenger fleet in October 2016. (Id. ¶ 24.)
is a trade union and is the sole and exclusive bargaining
representative for all U.S.-based pilots employed by Cathay.
(Id. ¶ 36.) USAOA is controlled by its
Executive Committee. (Id. ¶ 39.) The Executive
Committee participates in the deliberations and decisions of
the Disciplinary and Grievance Committee, including those
relating to grievances. (Id.)
History of Employment, Representation, and
April 2005 through December 2015, Hoover was employed by USA
Basing Limited, a Cathay subsidiary. (Id.
¶¶ 22, 29.) On January 1, 2016, Cathay became the
employer of all pilots based in the United States who had
previously been employed by USA Basing Limited. (Id.
¶ 22.) To secure employment with Cathay, all U.S.-based
pilots, including Hoover, had to resign from USA Basing
Limited. (Id. ¶ 25.) While employed by USA
Basing Limited, many U.S.-based pilots joined the Hong Kong
Aircrew Officer's Association (“HKAOA”), a
Hong Kong-based trade union. (Id. ¶ 31.) HKAOA
represents the interests of pilots who reside in Hong Kong
and work for Cathay and its foreign subsidiaries.
(Id. ¶ 32.)
August 2015, USAOA was certified as the sole and exclusive
bargaining representative for U.S.-based pilots employed by
Cathay. (Id. ¶ 36.) In September 2016, USAOA
and Cathay entered into their first collective bargaining
agreement (the “CBA”), which provides the
conditions of service for Cathay's U.S.-based pilots.
(Id. ¶¶ 41-42.) The CBA was entered for
the benefit of members of the USAOA, including Hoover.
(Id. ¶ 43.)
1 of the CBA contains pilot pay scales. (Id. ¶
47.) There are three pay scales titled “Unified FO and
Passenger Captain Scale, ” effective on September 1,
2016, 2017, and 2018, respectively. (Dkt. 29-1 at 78-80.)
They include salary figures grouped by “First Officer,
” “Senior First Officer, ” “Captain,
” and “Senior Captain.” (Id.)
Salaries increase based on rank and year. (Id.)
There are three additional scales titled “Freighter
Salary Scale, ” effective on the same dates.
(Id. at 81-83.) For the Freighter scales, salary
figures are listed only for one rank, “Captain, ”
and increase based on year. (Id.) Section Five of
the CBA defines the seniority of Cathay pilots based on the
date they joined the organization. (Dkt. 29 ¶ 48.)
of Understanding 1 (“LOU 1”) between Cathay and
USAOA incorporates into the CBA a previous agreement known as
the Permanent Basings Policy Agreement 2006 (“PBPA
06”). (Id. ¶ 53, Dkt. 29-1 at 98.) PBPA
06 is a policy agreement entered into between USA Basing
Limited, Cathay, three other foreign-based Cathay
subsidiaries, and HKAOA. (Dkt. 29 ¶ 55.) PBPA 06 applies
to pilots who operate or are eligible to operate Passenger
aircraft and provides the process to allocate permanent bases
for pilots when a base vacancy is open for bidding on
Passenger aircraft. (Id. ¶¶ 57-59.) Under
PBPA 06, new base vacancies are awarded to pilots who bid on
them in order of seniority. (Id. ¶ 60.)
The Notice to Crew and Q&A Process
December 2, 2016, Cathay issued a Notice to Crew (the
“NTC”) announcing new permanent base vacancies in
Anchorage, Chicago, Los Angeles, Miami, and New York,
available to all U.S.-based pilots. (Id. ¶ 49.)
The NTC stated that all First Officer vacancies would be
compensated on the Unified pay scale, and all Captain
vacancies would be compensated on the Passenger Captain pay
scale. (Id. ¶ 51.) It also stated that all
vacancies would be for the 747 Freighter aircraft.
(Id. ¶ 52.)
held a question and answer session with USAOA and worked with
the union to clarify questions raised by U.S.-based pilots
about the PBPA 06 and the new base vacancies. (Id.
¶¶ 62-63.) Afterward, on December 23, 2016, Cathay
released the “Q&A Process.” (Id.)
The Q&A Process provided that the new base vacancies
would “be undertaken in accordance with” PBPA 06.
(Id. ¶ 64.) Like the NTC, the Q&A Process
provided that all available First Officer vacancies would be
compensated on the Unified pay scale, while all available
Captain vacancies would be compensated on the Passenger
Captain pay scale. (Id.)
Q&A Process also provided that the 747 Freighter Captains
who were awarded one of the new base vacancies would have
their 747 Freighter aircraft “treated as” 747
Passenger aircraft for pay purposes-i.e., those
Freighter Captains would be moved to the Passenger Captain
pay scale, even though they would be flying 747 Freighter
aircraft. (Id. ¶¶ 65, 67.) Meanwhile, 747
Freighter Captains who were not awarded one of the
new base vacancies, like Hoover, would continue to fly the
same 747 Freighter aircraft as the successful bidders, but
they would still be “treated as” 747 Freighter
aircraft for pay purposes and would remain on the Freighter
Captain pay scale. (Id. ¶¶ 66, 68.) For
some pilots, the difference in pay between the Freighter
Captain and Passenger Captain pay scales is about $5, 100 per
month or $62, 000 per year. (Id. ¶ 79.)
Freighter Captains with less seniority than Hoover
successfully bid on and were awarded new base vacancies in
Anchorage. (Id. ¶¶ 71-72.) The two junior
Captains fly the same aircraft and the same routes as Hoover,
they undergo the same training and they have the same flight
plans, but they are now paid on the Passenger Captain scale,
while Hoover remains on the Freighter Captain pay scale.
(Id. ¶¶ 73-75.) Hoover did not bid on
Anchorage. (Id. ¶ 71.)
USAOA Grievance Process
did not object to the NTC or the Q&A Process issued by
Cathay. (Id. ¶ 69.) On October 12, 2017, Hoover
protested the pay change for some 747 Freighter Captains, and
“how that affected his seniority for pay purposes,
” by emailing Cathay's then-Director of Flight
Operations. (Id. ¶ 78.) He sent a demand letter
on January 2, 2018. (Id.) Cathay's then-Head of
Employee Relations informed Hoover that the Q&A Process
was “agreed” with USAOA, that Hoover could have
been moved to the Passenger Captain pay scale by bidding on
one of the new base vacancies in Anchorage, and directed him
to USAOA's grievance procedure in Section 23 of the CBA.
(Id. ¶ 80.)
February 26, 2018, Hoover formally asked the USAOA Discipline
and Grievance Committee (“the Committee”) to file
a grievance on his behalf alleging Cathay's breach of the
CBA terms covering rates of pay and seniority. (Id.
¶ 81.) The CBA provides for a two-stage process to
address violations by Cathay: a grievance hearing and a
grievance appeal hearing. (Id. ¶ 82.) Once the
grievance process has been exhausted, a claim can proceed to
the System Board ...