https://freeimage.host/i/JhWdxElLaw360 (March 21, 2024, 5:45 PM EDT) -- A Sixth Circuit panel pressed on Thursday a cargo airline and pilots who say they were unlawfully fired for refusing COVID-19 vaccinations about the pilots' union contract, with one judge asking whether the open questions about their collective bargaining agreement meant the discrimination case was preempted. The three-judge panel heard arguments in Kalitta Air pilots' challenge to a Michigan district court's June 2023 conclusion that their religious and disability discrimination claims, which came after they were fired for refusing COVID-19 vaccines, were largely trumped by the Railway Labor Act. The pilots' union is the Air Line Pilots Association. The RLA requires disputes rooted in the interpretation of collective bargaining agreements to be arbitrated — something U.S. Circuit Judge Karen Nelson Moore pointed out. "But if there are all these questions about how the CBA is involved — or not — doesn't RLA preemption require that this not be decided by the District Court?" asked Judge Moore.

Arguing on the pilots' behalf, John Clay Sullivan of S L Law responded that that was one of the mistakes the district court made. "Referencing the terms of the CBA [is] not the same thing as interpreting the CBA," he said. The pilots, who worked for the Michigan-based cargo airline, are seeking to revive their suit that they were illegally denied religious or medical accommodations from the company's COVID-19 vaccine mandate and were instead fired for refusing jabs. The September 2022 proposed class action was initially brought by 11 named plaintiffs.

The district court order dismissed two plaintiffs from the suit and tossed three religious- and disability-based discrimination claims made against the airline by several other plaintiffs. U.S. District Judge Thomas Ludington subsequently stayed the case for appeal on the issue of whether the dismissed claims were in fact precluded by the RLA prior to discovery kicking off on the claims that remain pending. The airline has argued that there are a litany of reasons for upholding the trial court's decision, including that any analysis of the pilots' requested accommodations would necessarily require the court to delve into the fine points of the parties' CBA. It says the RLA instructs that such analyses must be kicked to an arbitrator, not overseen by a court.

One issue that received a lot of focus Thursday is a provision in the contract that allows pilots to choose their routes and schedules based on seniority. Kalitta's lawyer, Nicholas Bart of Fitzpatrick & Hunt, cited previous Sixth Circuit decisions he said show that accommodating workers by disrupting a CBA's seniority-based bidding system "necessarily requires interpretation of the CBA and necessarily requires an undue hardship for the company, because the violation of the CBA itself is the undue burden." At several points, the judges asked whether certain sections of the CBA were in the record for them to look at, but were generally met with a no.

On Thursday, Judge Moore asked whether the CBA section on seniority was in the court record. Bart said they had "referenced relevant portions." "Don't you think it would have been helpful to the district court, and to us, to actually have that?" chimed in U.S. Senior Circuit Judge Alice M. Batchelder. "Your Honor, it may have been helpful," Bart responded. "However, when the standard is if the court must interpret any provision of the CBA, the analysis must stop. Because the dispute is a minor dispute that must be resolved by arbitration." "So you're saying no matter what it says, if it's in there, and the court eventually might have to look at it — that's all we need to know?" Judge Batchelder asked. "Your Honor, not that the court may have to look at it, but that the court may have to interpret it," Bart said. The pilots were represented at oral argument by John Clay Sullivan of S L Law. The airline was represented at oral argument by Nicholas C. Bart of Fitzpatrick & Hunt Pagano Aubert. The case is Robert Odell Jr. et al. v. Kalitta Air LLC et al., case number 23-1703, in the U.S. Court of Appeals for the Sixth Circuit.