Bensel v. Allied Pilots Ass'n

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

10-26-2004

Bensel v. Allied Pilots Assn

Precedential or Non-Precedential: Precedential

Docket No. 03-3176

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PRECEDENTIAL Jerald R. Cureton, Esq. (Argued)

H. Thomas Hunt, III, Esq.

UNITED STATES COURT OF Anthony Valenti, Esq.

APPEALS FOR THE THIRD CIRCUIT Tara Ann Mosier, Esq.

Cureton Caplan

950B Chester Avenue

Delran, NJ 08075

No. 03-3176

Counsel for Appellant

Steven K. Hoffman, Esq. (Argued)

LEROY BENSEL, individually and Edgar N. James, Esq.

as representative of a class consisting James & Hoffman

of former Trans World Airlines, Inc., 1101 17th Street, N.W.

pilots employed by TWA Airlines LLC Suite 510

as of April 2001, Washington, DC 20036

Appellant

James Katz, Esq.

v. Jennings Sigmond

1040 North Kings Highway

ALLIED PILOTS ASSOCIATION; Suite 300

TWA AIRLINES, LLC; Cherry Hill, NJ 08034

AIR LINE PILOTS ASSOCIATION;

AMERICAN AIRLINES, INC. Counsel for Appellee Allied

Pilots Association

On Appeal From the United States Donald L. Havermann, Esq. (Argued)

District Court for the District Harry Rissetto, Esq.

of New Jersey Morgan, Lewis & Bockius

(D.C. Civil No. 02-cv-02917) 1111 Pennsylvania Avenue, N.W.

District Judge: Hon. Joseph E. Irenas Washington, DC 20004

Alfred J. Lechner, Jr., Esq.

Argued July 12, 2004 Joseph A. Piesco, Jr., Esq.

Morgan, Lewis & Bockius

BEFORE: RENDELL, FISHER and 502 Carnegie Center

VAN ANTWERPEN, Circuit Judges Princeton, NJ 08540

(Filed October 26, 2004) Counsel for Appellees

TWA Airlines, LLC and

American Airlines, Inc.

Daniel M. Katz, Esq. (Argued) I of the Second Amended Restated

Katz & Ranzman Complaint.

1015 18th Street, N.W.

I. Facts

Suite 801

Washington, DC 20036 As the material facts are generally

not in dispute, the facts presented below

Counsel for Appellee Air are taken in large part verbatim from the

Line Pilots Association District Court’s opinion in this case.

Additional facts are incorporated from the

parties’ submissions and appendices.

The Asset Purchase Agreement

OPINION OF THE COURT

__________ After several years of failing to

VAN ANTWERPEN, Circuit Judge make a profit, on January 9, 2001, TWA

entered into an agreement with Defendant-

In this appeal of summary Appellee American whereby American

judgment, Appellants challenge the order agreed to purchase the majority of TW A's

of the District Court which granted assets following TWA's filing for Chapter

summary judgment as to all Defendants- 11 bankruptcy protection. TWA made

Appellees and dismissed all counts of such a filing the following day, January

Appellants’ Second Amended Restated 10, 2001. As a condition of the purchase

Complaint. Plaintiffs-Appellants (the agreement, American agreed to hire almost

“Class”) are a group of airline pilots all of TWA's unionized employees

formerly employed by Trans World provided that certain labor protective

Airlines, Inc. (“TWA”). The gravamen of provisions in their various contracts were

the Class’ complaints, which arise under eliminated.

the Railway Labor Act (“RLA”), 45

One of those provisions concerned

U.S.C. §§ 151 et seq., concern the

the right of TWA's pilots to bring to

imposition of a seniority integration

arbitration issues of seniority integration in

agreement resulting from American

the event of a purchase of TWA or merger

Airlines, Inc.’s (“American”) purchase of

of TWA with another airline. American

TWA’s assets and the hiring of the Class

indicated that it would not proceed with its

by American’s subsidiary, TWA Airlines,

purchase of TWA unless this labor

LLC (“TWA-LLC”). For the reasons

protective provision, known as Allegheny-

explicated below, we reverse-in-part and

Mohawk rights, was eliminated. TWA’s

affirm-in-part the Order of the District

pilots were represented by Defendant-

Court, and remand to provide the Class

Appellee ALPA through its TWA Master

and the Air Line Pilots Association

(“ALPA”) an opportunity to conduct

discovery on the claims asserted in Count

2

Executive Council (“TWA M EC”) unit.1 order withdrawing the section 1113 motion

Under American’s collective bargaining and formalizing the waiver agreement.2

agreement with its pilots, represented by

D e f e n d a n t-A ppellee All i e d Pilots

The ALPA / TWA-LLC

Association (“APA”), the seniority of any

Transition Agreement

new pilots who began working for

American, as a result of an acquisition by On April 9, 2001, ALPA and the

American, would begin to accrue only at TWA MEC entered into a transition

the moment that the pilots began working agreement with TWA-LLC. Upon

for American. completion of the asset purchase by

American, TWA-LLC would become a

The Waiver Agreement

wholly owned subsidiary of American.

The TWA MEC resisted waiving its Under that transition agreement, the

seniority protection provisions, and on majority of the provisions of the collective

March 15, 2001, TWA filed a motion bargaining agreement between ALPA and

under 11 U.S.C. § 1113 with the TWA would remain in effect until such

Bankruptcy Court seeking to abrogate the time as the National Mediation Board

provisions in its collective bargaining (“NMB”) adjudicated TWA-LLC and

agreement with ALPA. In response, on American as a “single carrier” and

April 2, 2001, the TWA MEC passed a extended APA’s certification to cover the

resolution waiving its seniority protection TWA-LLC pilots (comprising the Class).

provisions in exchange for a letter from The transition agreement incorporated by

American in which American promised to reference American’s promise to use its

“use its reasonable best efforts” with APA reasonable best efforts to ensure a fair

to “secure a fair and equitable process for seniority integration process. In addition,

the integration of seniority” and to adopt ALPA would continue to remain the

the procedures that result from facilitated exclusive representative of the TWA-LLC

meetings between APA and ALPA. pilots until the NMB made the appropriate

Significantly, any seniority integration declarations. The next day, on April 10,

agreement reached between APA and 2001, American’s purchase of TWA’s

ALPA was to be presented to American as

a proposed modification of the collective

bargaining agreement between American 2

There is a great deal of uncertainty as

and APA. On April 6, 2001, the

to what the result might have been if

Bankruptcy Court entered a stipulation and

American had gone through with its

purchase of the TWA assets without

ALPA waiving its seniority integration

1

Some members of the class of protections. Of course, it was precisely

Plaintiffs in this case were also members this uncertainty that most likely influenced

of the TWA MEC. American to request the waiver by ALPA.

3

assets was finalized and TWA-LLC began objection to APA certification submitted

operations as a separate air carrier. At that by TWA MEC, the NMB certified APA as

point, almost all TWA pilots became the sole bargaining agent for all American

employees of TWA-LLC. pilots. As a result, the April 9, 2001

TWA-LLC/ALPA transition agreement

Seniority Integration Process

expired (by its own terms), ALPA’s

Between at least February and certification as the collective bargaining

August of 2001, the TWA MEC and APA agent for the TWA-LLC pilots terminated,

negotiated with each other over seniority and Supplement CC became effective.

integration under the auspices of a

Arbitration Proceedings

facilitator provided by American. No

agreement was reached between the Following execution of Supplement

parties. On November 8, 2001, APA and CC, ALPA pursued a grievance against

American reached an independent American and arbitrated before a System

agreement on seniority integration of the Board of Adjustment, alleging that

former TWA pilots, known as Supplement American violated the promise it made to

CC. Under Supplement CC, some TWA ALPA in the letter it wrote concurrently

pilots did receive credit for their seniority, with the April 2, 2001 waiver agreement.

and certain captains and first officer The grievance alleged that American did

positions were guaranteed for former not use its “reasonable best efforts” to

TWA pilots at the remaining pilot base for protect the TWA-LLC pilots’ seniority

TWA-LLC pilots, in St. Louis, Missouri. protections, as it had agreed to do in its

Supplement CC was not to become letter. Through the arbitration, ALPA

effective until the NMB declared sought the nullification of Supplement CC.

American and TWA-LLC to be a single The arbitrator, in a decision dated April

carrier and extended the APA’s 18, 2002, rejected the grievance and found

certification. TWA MEC refused to sign for American.

Supplement CC.

Summary of Relevant Dates

NMB Proceedings

For purposes of clarity, the dates

On November 9, 2001, APA filed a mentioned in the foregoing discussion may

petition with the NMB seeking the be summarized as follows:

declaration of “single carrier” status.

January 9, 2001: T W A e n t e rs i n to

ALPA opposed this petition, but on March

A sset Purchase

5, 2002, the NMB declared that TWA-

Agreement with

LLC and American were a “single carrier”

American.

for RLA purposes. On April 3, 2002, after

ALPA declined to submit an application to

become the bargaining representative for

the combined pilot group, and despite the

4

April 2, 2001: TWA MEC passes a effective; transition

resolution waiving agreement between

its seniority TWA-LLC and

protection provisions ALPA expires.

in exchange for

April 18, 2002: A r b i t r a t o r re j e c ts

A m e r i c a n ’ s

ALPA’s allegation

“ r e a s o n a b le b e st

that American did

efforts” promise.

not use its

April 9, 2001: ALPA and TWA “ r easo nable b e s t

M EC enter into efforts” to protect the

transition agreement TWA-LLC pilots’

with TWA-LLC. seniority integration,

as promised in its

April 10, 2001: American’s purchase

letter.

of TWA ’s assets

finalized; TWA-LLC September 3, 2002: Class action initiated

begins operations as by former TWA

a separate air carrier. pilots.

November 8, 2001: Am erican and APA January 27, 2003: Clas s file s S e co nd

execute Supplement Amended Restated

CC, an agreement Complaint.

governing the

Procedural Posture

seniority integration

of the former TWA On September 3, 2002, this class

pilots. Supplement action was initiated by filing a complaint

CC is subject to two notwithstanding a prior action by APA.

c o n d i t i o n s Pursuant to a series of consent orders

subsequent. agreed to by all parties, the parties were

realigned in their present form. The Class

March 5, 2002: N M B declares that

filed a Second Amended Restated

American and TWA-

Complaint against the four Defendants on

LLC are a “single

January 27, 2003. The District Court’s

carrier” for RLA

order dismissing the original action

purposes.

preserved the original filing dates for

April 3, 2002: NM B certifies APA statute of limitations purposes.

as the sole

II. Jurisdiction

bargaining agent for

all pilots, making Appellate jurisdiction is proper

Sup plement CC pursuant to 28 U.S.C. § 1291. The District

5

Court had subject matter jurisdiction under entitled to judgment as a matter of law.”

28 U.S.C. §§ 1331, 1367. Fed. R. Civ. P. 56(c). “In reviewing the

grant of summary judgment, we must

III. Standard of Review

affirm if the record evidence submitted by

All four Defendants filed motions the non-movant ‘is merely colorable or is

to dismiss on all claims asserted against not significantly probative.’” See Port

them. The District Court elected to treat Auth. of New York & New Jersey v.

these motions as summary judgment Affiliated FM Ins. Co., 311 F.3d 226, 232

motions.3 (3d Cir. 2002).

This Court has plenary review of Under this standard of review, if

the District Court’s decision to grant there is a material issue of fact about when

summary judgment. See Blair v. Scott the statute of limitations period began to

Specialty Gases, 283 F.3d 595, 602-03 (3d accrue, then the District Court’s granting

Cir. 2002). We apply the same standard as of summary judgment was improper.

used by the District Court. Id. A grant of

IV. Analysis

summary judgment is appropriate “if the

pleadings, depositions, answers to Count I

interrogatories, and admissions on file,

Count I of the Second Amended

together with the affidavits, if any, show

Restated Complaint asserts against ALPA

that there is no genuine issue as to any

a series of breaches of its duty of fair

material fact and that the moving party is

representation under the RLA. The

District Court found these claims to be

3 time-barred, or alternatively, that they

Notwithstanding the District Court’s

failed to state claims upon which relief

characterization of Defendants’ motions as

could be granted. As explained below,

motions for summary judgment, the

however, it follows from application of the

District Cou rt dism issed du ty of

rays of hope doctrine that Appellants’

representation claims asserted against

claims did not accrue until April 18, 2002,

ALPA for failure to state a claim. To the

the date the arbitrator of the System Board

extent we treat ALPA’s motion as a

of Ad justment de nied A ppella nts’

motion to dismiss, our review is plenary.

challenge to American’s execution of its

Felice v. Sever, 985 F.2d 1221, 1226 (3d

“best efforts” promise, or at the earliest,

Cir.), cert. denied, 509 U.S. 923, 113 S.Ct.

April 3, 2002, the date Supplement CC

3038 (1993). Plaintiffs-Appellants have

became effective. Because the Class filed

noted in their brief that the District Court

its breach claims against ALPA within six

failed to address their Rule 56(b) affidavit

months of both of these accrual dates, the

and failed to grant a Rule 56(f)

claims were timely filed, and, if proven,

continuance. That issue, however, is not

s t a t e c l a im s w a r r a n ti n g r e l ie f .

properly before us as Appellants did not

Accordingly, we reverse the District Court

base their appeal on that ruling.

6

and remand to permit the parties to discovered the acts constituting the breach

proceed with discovery and provide the at any time before rays of hope were

Class an opportunity to further explore its extinguished. See Childs, 831 F.2d at 436;

breach claims. Miklavic, 21 F.3d at 556.

A. Accrual of Claim Two significant policies underlie

the view that, despite the employee’s

It is undisputed that the statute of

awareness of the union’s breach or the

limitations for a duty of fair representation

futility of further union action, the statute

claim against a union under the RLA is six

of limitations does not accrue while the

months. Sisco v. Consolidated Rail Corp.,

union continues to represent the employee

732 F.2d 1188, 1193-94 (3d Cir. 1984).

and proffers rays of hope regarding the

As a general matter, a duty of fair latter’s claim. First,

representation claim accrues and the six

it is inefficient and unwise

month limitations period commences when

to compel an employee to

“the futility of further union appeals

sue his union in federal

becomes apparent or should have become

court while the union

apparent.” Scott v. Local 863, Int’l

continues, in good faith, to

Brotherhood of Teamsters, Chauffeurs,

pursue the employee’s

Warehousemen and Helpers of America,

claims and attempts to

725 F.2d 226, 229 (3d Cir. 1984). If,

remedy any past breach of

however, a union purports to continue to

its DFR. If the union can

represent an employee in pursuing relief,

indeed remedy the cause of

the employee’s duty of fair representation

t h e e m p loye e ’s

claim against the union will not accrue so

dissatisfaction, it should be

long as the union proffers “rays of hope”

allowed to do so, thus

that the union can “remedy the cause of the

obviating the federal judicial

employee’s dissatisfaction.” Childs v.

involvem ent.Childs, 831

Penn. Fed’n Brotherhood of Maintenance

F.2d at 434. This policy is

Way Employees, 831 F.2d 429, 434 (3d

especially befitting in the

Cir. 1987); see also Whittle v. Local 641,

context of labor disputes,

I n t’l B r otherhood of T eamste rs ,

w here Congress has

Chauffeurs, Warehousemen and Helpers of

evidenced its desire to

America, 56 F.3d 487, 490 (3d Cir. 1995);

resolve disputes through

Miklavic v. USAir, Inc., 21 F.3d 551 (3d

arbitration. Id. Second,

Cir. 1994); Vadino v. A. Valey Eng’rs,

requiring an employee to

903 F.2d 253, 261 n.11 (3d Cir. 1990). In

sue the union within six

this context, it is irrelevant if the

months of discovering the

employees were aware of or with

union’s breach puts the

reaso nable diligence should have

7

employee in an untenable certification pending an investigation into

position because “if he waits possible interference by American.

to sue the union he may lose Success in any of these endeavors would

the right to do so, but if he have prevented imposition of Supplement

sues the union immediately CC, as the single carrier determination and

he may antagonize the best e x t e n s io n o f c e r t if i c a ti o n w e r e

possible champion of his prerequisites to its enforcement. Third,

cause.” Id. at 435. had ALPA attempted to require American

and TWA-LLC to negotiate with it the

B. Application

terms of the Class’ seniority integration, or

Before applying the rays of hope attempted to challenge certification of

doctrine to the instant scenario, we note APA as the certified collective bargaining

that, contrary to the District Court’s and agent of the former TWA pilots as

ALPA’s position, Supplement CC was not requested by the TWA MEC, or attempted

the inevitable outcome of the April 2001 to seek representational rights of the

waiver of Appellants’ Allegheny-Mohawk combined pilots before the NMB, or

provisions. In other words, despite challenged Supplement CC directly,

waiving an important labor protective actions that ALPA failed to take in

provision, rays of hope remained that, with p u r p o r te d v i o l a t io n o f i t s f a ir

appropriate continued representation by representation duty to the Class, a more

ALPA, a more propitious seniority favorable integration agreement could

agreement than Supplement CC could arguably have been implemented. Finally,

have been obtained for the Class. First, because waiver of the contractual

although concession of its Allegheny- Allegheny-Mohawk provisions did not

Mohawk rights left the Class in an constitute a clear and unmistakable waiver

admittedly weak bargaining position, the of statutory bargaining rights under the

Class received in exchange for its waiver RLA, compare Gullickson v. Southwest

American’s promise to use its “reasonable Airlines Pilots’ Ass’n, 87 F.3d 1176 (10th

best efforts” to ensure “a fair and equitable Cir. 1996), Supplement CC was not the

process for the integration of seniority.” foregone conclusion of the Class’ waiver.

ALPA brought to arbitration the issue of Rays of hope were not automatically

whether American adhered to its best extinguished by virtue of the Class’ waiver

efforts promise. A favorable outcome of the Allegheny-Mohawk provisions.

could have resulted in the invalidation of Indeed, Supplement CC itself did not

Supplement CC. Second, ALPA endtail all of the former TW A pilots.

submitted an opposition to APA’s

1. NMB Certification

application to the NMB for a declaration

of single carrier status, and ALPA, through Appellants argue that the statute of

the TWA MEC, requested that the NMB limitations began to run no sooner than

stay extension of APA’s representational April 3, 2002, when ALPA lost

8

representational rights and when and ALPA would have remained in effect

Supplement CC became binding and at least until renegotiation with ALPA, and

effective. further bargaining on the issue of seniority

negotiation would have occurred. Thus,

This Court has applied the rays of

rays of hope remained at least until these

hope analysis in the absence of any

conditions subsequent were satisfied,

arbitration proceeding. Our discussion of

r e nde r ing e f f e c tive an d bin din g

the doctrine makes obvious that its

Supplement CC, a nd ALPA lost

supporting principles are not inherently

representation rights as the Class’

dependent on the presence of an arbitration

bargaining agent.

proceeding. An arbitration proceeding is

merely illustrative of one way in which a Rays of hope had to extend until at

union can proffer rays of hope that it will least April 3, 2002, when the NMB

obtain the relief the complaining employee certified APA as the sole bargaining agent

desires in spite of a breach of its duty of for all American pilots. As suit was filed

fair representation. We have also applied on September 3, 2002, the action was

the rays of hope doctrine to a union’s timely. We do not rest solely upon the

attempted renegotiation of the terms of a April 3, 2002 date because, as discussed

collective bargaining agreement with the below, we believe that rays of hope

employer on behalf of its members. extended until April 18, 2002, when the

Although the alleged breach of the duty of adverse arbitration decision was rendered.

fair representation occurred during these

2. The Arbitration Proceeding

negotiations, we found that the employees’

potential cause of action against the union Where a union represents the

did not accrue until the union was employee in an arbitration proceeding and

decertified, for only then “were the rays of proffers rays of hope concerning the

hope extinguished.” Miklavic, 21 F.3d at possibility of success in spite of its breach,

556. this Court has held that the employee’s

cause of action does not accrue until the

Although Supplement CC was

arbitration board denies the employee’s

executed on November 8, 2001, it was an

claim. Childs, 831 F.2d at 436; Whittle,

a g r e e m e n t subje ct to co ndit i o ns

56 F.3d at 490. Although forcing a

subsequent-namely, that the NM B would

plaintiff to delay pursuing a meritorious

render a single carrier determination and

duty of fair representation claim during

designate APA as the certified collective

fruitless representation by the union until

bargaining agent for all pilots. As stated

the arbitration or grievance board issues its

earlier, ALPA and TWA MEC formerly

final decision sacrifices the policy of

opposed these determinations before the

avoiding futile administrative procedures,

NMB. Had any of these conditions

this Court has determined that this policy

subsequent failed to transpire, the

is outweighed by the important federal

transition agreement between TWA-LLC

9

policies of deference to arbitration, ALPA’s attempt to distinguish

avoidance of unnecessary lawsuits and Childs and Whittle on the basis that the

certainty as to when the statute of breaches of the duty of fair representation

limitations commences. Childs, 831 F.2d asserted against the unions in those cases

at 436 n.3. involved the unions’ conduct during the

grievance proceeding or arbitration

Pursuant to this approach, the

proceeding is unpersuasive. Although

Class’ claims against ALPA accrued when

both cases arise in that posture, the

the adverse arbitration decision was

reasoning espoused in Childs and Whittle

rendered on April 18, 2002. The instant

justify its application to situations where

action was filed on September 3, 2002,

the union breach occurs outside the

within six months of accrual.

context of the arbitration proceeding itself.

In the instant case, ALPA pursued Indeed, the instant suit represents such an

an arbitration against American on behalf example. While the breaches asserted

of the former TWA pilots in an effort to against ALPA are unrelated to its conduct

establish that American did not fulfill its during the arbitration, a favorable arbitral

promise to use reasonable best efforts to outcome would have remedied those

ensure a fair seniority integration process. breaches, as described above. As such, the

In instituting the grievance, ALPA sought polices supporting our reasoning in Childs

to prevent enforcement of Supplement CC. and Whittle-- that unnecessary federal

Thus, a successful arbitral outcome would litigation should be avoided, that

have remedied and/or rendered moot administrative procedures should be given

ALPA’s supposed breaches. Had “full play,” and that an employee should

Supplement CC been invalidated, ALPA be spared the “Hobson’s choice between

could have pressed American and TWA- letting the statute of limitations run and

LLC to bargain directly with it concerning antagonizing his best advocate” Childs,

a seniority integration agreement for the 831 F.2d at 436--are unquestionably

Class. Furthermore, Supplement CC’s furthered here. Moreover, it is significant

abrogation would have rendered moot that this Court has applied the rays of hope

Appellants’ assertions that ALPA violated analysis in the absence of any arbitration

its duty of fair representation through its proceeding in Miklavic. Therefore, we

failure to seek representational rights of refuse to adopt such a narrow

the combined pilot group before the NMB, interpretation of this precedent when the

its failure to challenge certification of policies founding them are undoubtedly

APA as the certified collective bargaining furthered in circumstances that differ from

agent of the former TWA pilots as those decisions’ exact factual postures.

requested of them by the TWA-MEC, and

It is of no moment that the

its failure to take action to challenge

arbitration proceeding did not specifically

Supplement CC.

challenge the April 2001 waiver agreement

10

and was unrelated to any supposed Accordingly, we hold that

coercion of TWA MEC by ALPA to Appellants’ breach of the duty of fair

forfeit the Allegheny-Mohawk provisions representation claims against ALPA did

in violation of its fair representation duty. not accrue until April 18, 2002.

We recognize that Appellants must have

We briefly address and dispose of

realized the general implications of

ALPA’s position. ALPA posits that the

w a i v i n g t h e A l l eg h e n y -M o h a w k

six- month statute of limitations on a duty

provisions at the time they agreed to do so.

of fair representation claim challenging a

It may be true that ALPA’s continued

collectively bargained agreement begins to

representation of the Class through

run immediately upon execution of that

arbitration could not have ameliorated the

agreement. Relying primarily on Local

C lass’ weak b argain ing p ositio n

Lodge No. 1424 v. National Labor

occasioned by that waiver. Rays of hope

Relations Board, 326 U.S. 411, 415-417,

nonetheless apply to ALPA’s alleged

80 S.Ct. 822 (1960), ALPA asserts that

conduct in the context of forcing this

this rule bars a legal challenge to both the

waiver upon the Class. The Class could

April 2, 2001 waiver agreement that was

not have appreciated or predicted the full

subsequently memorialized in the

ramifications of this waiver until at the

Stipulation and Order of the Bankruptcy

earliest when Supplement CC became

Court on April 6, 2001, and all the

effective and binding. Again, Supplement

additional duty of fair representation

CC was not the waiver’s inescapable

breaches alleged in the Second Amended

result. Moreover, and perhaps more

Restated Complaint which ALPA contends

significantly, forcing the Class to

were the inevitable result of the initial

challenge ALPA within six months of the

waiver, because those claims accrued no

waiver would have placed the Class in the

later than April 6, 2001. Local Lodge is

untenable position of antagonizing the

distinguishable in a very important respect.

union that continued to represent them in

It rejected the premise that a collective

an effort to acquire the most advantageous

bargaining agreement that contains a union

seniority integration possible. This

security clause valid on its face, but which

concern represents a fundamental basis of

was entered into when the union did not

the rays of hope doctrine. There are good

have majority status, gives rise to two

reasons for having a statute of limitations,

independent unfair labor practices, one

and we emphasize that the rays of hope

being the execution of the agreement, the

doctrine is not open-ended. The fact

other arising from its continued

pattern may vary from case to case, but

enforcement. Instead, the Supreme Court

clearly there comes a point when a union

held that

can no longer be said to proffer rays of

hope to an employee, and the rays of hope [w]here . . . [a] collective

are extinguished. bargaining agreement and

its enforcement are both

11

perfectly lawful on the face a l l eg a t i o n s c o n s t it u t e

of things, and an unfair breaches independent of the

labor practice cannot be initial waiver agreement,

made out except by reliance this argum ent is not

o n t h e fa c t o f t h e compelling.

a g r e e m e n t ’ s o r i g in a l

In any event, ALPA contends that

unlawful execution, an event

any challenge brought r e ga rdin g

which, because of

Supplement CC accrued no later than

limitations, cannot itself be

November 8, 2001, the date of its

made the subject of an

execution. Again, the cases relied upon by

u n f a ir l a b o r p r a c t i c e

ALPA in support of this view are

complaint, . . . permitting

materially distinguishable. In each case,

resort to the principle that §

the union being sued was the union that

10(b) is not a rule of

entered into the challenged agreement. As

evidence, in order to convert

such, the employees pressing duty of fair

what is otherwise legal into

representation claims against the union

something illegal, would

were already bound by the agreement in

vitiate the po licies

issue at the time that agreement was either

underlying that section. 362

entered into or ratified. Those plaintiffs

U.S. at 419 (emphasis

suffered a definitive injury upon the date

added). This reasoning

of execution or ratification. See United

applies to bar Appellants’

Indep. Flight Officers v. United Air Lines,

claims in the instant suit

Inc., 756 F.2d 1262 (7th Cir. 1985) (initial

only if one accepts the

injury occurred when the union failed to

p r o p o s i ti o n t h a t t h e

reach an agreement with employer and a

limitations period associated

subsequent injury occurred when the

with ALPA’s initial breach

agreement was signed); Gvozdenovic v.

accrued on April 6, 2001,

United Air Lines, Inc., 933 F.2d 1100 (2d

and the subsequent alleged

Cir.) (incoming flight attendants were

breaches are all

already employed, members of the union,

“inescapably grounded,”

and thus bound as of the date offending

362 U.S. at 422, in the

agreement was ratified), cert. denied, 502

initial breach. Because

U.S. 910, 112 S.Ct. 305, 116 L.Ed.2d 248

Supplement CC was not the

(1991). Significantly, Gvozdenovic found

inevitable result of the

that the statute of limitations ran not from

w ai v e r a g r e eme nt, a s

when the agreement was entered into, but

described in connection with

from when it was ratified (and presumably

our “rays of hope” analysis,

effective). 933 F.2d at 1106. In contrast,

and because the subsequent

although Supplement CC was executed on

fair representation

12

November 8, 2001, it did not purport to amendment of a pleading

bind the Class until its conditions relates back to the date of

subsequent were satisfied. This occurred the original pleading when

on April 3, 2002, when the NMB certified

....

APA as the bargaining representative for

the Class. Indeed, the actions that the (2) the claim or defense

Class asserts ALPA failed to pursue in asserted in the amended

violation of its duty of fair representation pleading arose out of the

may have invalidated Supplement CC or conduct, transaction, or

prevented its application to the Class. occurrence set forth or

attempted to be set forth in

3. Relation Back

the original pleading.In

Given our determination that the accordance with the general

Class’ claims against ALPA accrued on t h e o r y o f li b e ra l i ze d

April 18, 2002, Appellants’ claims are pleading in the federal

timely filed. Appellants initiated a class system, Rule 15(c) is

action against ALPA on September 3, premised on the notion that

2002, within the prescribed six-month a party is not entitled to the

limitations period. ALPA counters that, protection of the statute of

with the sole exception of allegedly limitations based upon the

coercing the Class into waiving the later asserti on by

Allegheny-Mohawk provisions, th e amendment of a claim or

additional purported breaches of its fair defense that arises out of the

representation duty are time-barred same conduct, transaction,

nonetheless because they were not alleged or occurrence set forth in the

until the Class’s Second Amended t i m e l y f i l e d o r i g in a l

Restated Complaint, filed on January 27, pleading. 6A Wright, Miller

2003. This is approximately nine months & Kane, Federal Practice &

following accrual of the Class’s breach Procedure § 1496 (2d ed.

claims. As explained below, ALPA’s 1990). Thus, amendments

argument is unavailing because the breach that restate the original

claims specifically enumerated in the claim with greate r

Second Amended Restated Complaint particularity or amplify the

relate back to Appellants’ original f a c t u a l c i rc u m st a n c e s

Complaint pursuant to Fed. R. Civ. P. surrounding the pertinent

15(c)(2). conduct, transaction or

occurrence in the preceding

Fed. R. Civ. P. 15(c) provides:

pleading fall within Rule

(c) Relation Back of 15(c). See, e.g., Clipper

Amendmen ts. An Exxpress v. Rocky Mt.

13

Motor Tariff Bureau, Inc., f a c i li t a te d d i s c u s si o ns

690 F.2d 1240, 1259 n.29 between ALPA and APA,

(9th Cir.), cert. denied, 459 the arbitration proceeding

U.S. 1227, 103 S.Ct. 1234, brought by ALPA, and the

75 L.Ed.2d 468 (1982). In negotiation and

essence, application of Rule implementation of

15(c) involves a search for a Supplement CC. The Class’

common core of operative breach allegations focus on

facts in the two pleadings. ALPA’s coercive role in

As such, the court looks to forcing the Class to waive

whether the opposing party its labor p rotectiv e

has had fair notice of the provisions, but further

general fact situation and charge ALPA with breach

legal theory upon which the generally. These allegations

amending party proceeds. are painted with a broad

See, e.g., Michelsen v. brush, and can easily be read

Penney, 135 F.2d 409, 416- to encompass the more

17 (2d Cir. 1943) (“[T]he particularized claims that

original complaint clearly appear in the Second

gave defendant notice that Amended Restated

he would be held for all acts Complaint. For example,

of negligence . . . . the original Co mplaint

[D]efendant was bound to broadly avers that

realize that he would be held Appellants’ claims stem

for every possible act of from ALPA’s actions in

mismanagement.”). It is causing the class to lose its

clear that the Class’ Second seniority rights. By virtue

Amended Restated of the series of events

Complaint merely expounds drafted in the original

upon and further details the Complaint, ALPA was

factual scenario and breach unquestionably on notice

claims that were roughly that it would be held liable

sketched in its original for every possible breach of

Complaint. The original its fair representation duty

Complaint outlines in broad occasioned by the outlined

terms the events facts. The additional

surrounding the Asse t purported bre a c h es

Purchase Agreement, the particularized in the Second

waiver agreement, the best Amended Restated

effo rts prom ise, the Complaint derive directly

14

from the factual In finding that these allegations failed to

circumstances adumbrated state a claim for relief, the District Court

in the original Complaint. relied on Dycus v. NLRB, 615 F.2d 820

T h is co n c l u s io n is (9th Cir. 1980). The Ninth Circuit’s

buttressed by the lack of any opinion in Dycus, which involved a

resulting disadvantage or discharged employee’s petition for review

prejudice to ALPA, who by of an order of the NLRB dismissing an

virtue of the original unfair labor practice complaint issued

Complaint was undoubtedly against two union locals, concurred with

aware of general fact the Board’s statement that “Local 598's

situation and legal theory withdrawal as bargaining agent did not

upon which the Class sought constitute a breach of the duty of fair

to hold it liable. representation.” Id. at 826 n.2. Dycus,

however, does not stand for the

The breach claims which the Class

proposition that a union’s withdrawal as a

asserted by amendment arose out of the

bargaining agent never constitutes a breach

same “conduct, transaction or occurrence

of the duty of fair representation. The

set forth . . . in the original pleading,” and

withdrawal must be done in good faith and

therefore under Rule 15(c) of the Federal

for a proper purpose. “An exclusive

Rules of Civil Procedure the amendments

bargaining agent may avoid its statutory

relate back to the date of the original

duty to bargain on behalf of the unit it

complaint. Consequently, Appellants’

represents by unequivocally and in good

claims charging ALPA with breaches of its

faith disclaiming further interest in

duty of fair representation are timely.

representing the unit. A disclaimer will

C. Failure to State a Claim not be given effect . . . if it is made for an

improper purpose . . . .” Id. at 826 (internal

The District Court alternatively

citations omitted). Because Appellants

dismissed four of Appellants’ breach of

aver that ALPA faced a conflict of interest

the duty of fair representation claims for

in representing the former TWA pilots

failure to state claims upon which relief

arising from an active organizing

can be granted. For the following reasons,

campaign to bring American pilots into

we reverse.

ALPA with the knowledge and approval of

The District Court treated together APA, it is premature to dismiss these duty

Appellants’ allegations that ALPA of fair representation claims at this time.

breached its duty of fair representation by If Appellants prove their allegations that

failing to seek representational rights of ALPA failed to take specific actions on

the combined pilot group before the NMB, behalf of its members for an improper

and by failing to challenge certification of purpose or in bad faith, they may obtain

APA as the collective bargaining agent for relief for ALPA’s breach of its fair

the combined pilot group before the NMB. representation duty.

15

Next, the District Court determined was not executed until November 8, 2001.

that ALPA’s alleged failure to challenge As such, ALPA had the right under the

Supplement CC following its approval on RLA to negotiate with at least TWA-LLC

November 8, 2001 failed to state a claim until March 5, 2002, when the NMB

for relief. Specifically, the District Court rendered its single carrier determination,

found there to be no duty of fair and thereafter with American until

representation right of one union to ALPA’s representational rights were

challenge an agreement legally signed by extinguished on April 3, 2002. Appellants

another union and its employer. In other thus state a viable claim.

words, ALPA’s decision not to file a futile

For the foregoing reasons, we

challenge to Supplement CC cannot

reverse the District Court’s opinion on

legally constitute a duty of fair

Count I of the Second Amended Restated

representation breach. In Air Line Pilots

Complaint and remand to permit the

Ass’n v. UAL Corp., 874 F.2d 439 (7th

parties to engage in discovery. It is our

Cir. 1989), United’s pilots, represented by

belief that at this stage of the proceedings

ALPA, brought a suit against United and

Plaintiffs should be given a fuller

United’s machinists union, complaining

opportunity for discovery relating to Count

that United entered into a collective

I and permitted to ascertain if there is any

bargaining agreement with the machinists’

factual support for their claims. At this

union to change the pilots’ terms of

point we ask “not whether a plaintiff will

employment without bargaining over the

ultimately prevail but whether the claimant

change with the pilots. The Seventh

is entitled to offer evidence to support the

Circuit held that the particular disputed

claims.” Scheuer v. Rhodes, 416 U.S. 232,

provision in United’s collective agreement

236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974),

with the machinists’ union violated the

overruled on other grounds, Harlow v.

Railway Labor Act. ALPA attempts to

Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727,

distinguish this case by noting that it did

73 L.Ed.2d 396 (1982). It may be that

not involve an airline merger, and more

ALPA properly carried out its duty of fair

importantly, that it did not address the

representation and there was nothing

issue of whether a carrier–American or

ALPA could realistically accomplish under

TWA-LLC–must bargain with a union–in

difficult circumstances. But it is too early

this case ALPA–that does not represent

to decide this issue at this point.

any of its employees. It is undisputed that

in UAL Corp., the machinists and pilots Count II

were all employees of United. This latter

A. Alleged Breaches of the Duty of

distinction, however, ignores the fact that

Fair Representation by APA

Appellants became employees of TWA-

Prior to April 3, 2002

LLC as of April 9, 2001, and TWA-LLC

continued to exist as a wholly owned Count II of the Second Amended

subsidiary of American. Supplement CC Restated Complaint asserts against APA a

16

number of purported breaches of the duty Appellants argue that when two employee

of fair representation committed prior to groups are combined, the duty of fair

April 3, 2002. The District Court found representation arises from the inclusion or

that the APA owed no duty of fair impending inclusion within the bargaining

representation to the Class prior to April 3, unit that the integration process seeks to

2002, and accordingly dismissed these create. The cases relied upon by

claims. We agree with the District Court Appellants, however, do not support this

and affirm for the following reasons. contention. With one exception that is not

applicable in the present case, none of the

A union has the statutory duty to

cases cited by the Class stand for the

represent all members of the appropriate

proposition that a union’s duty to a group

bargaining unit fairly. See Humphrey v.

of employees may attach before those

Moore, 375 U.S. 335, 342, 84 S.Ct. 363,

employees formerly enter the pertinent

11 L.Ed.2d 370 (1964). The scope of the

bargaining unit. Instead, as explained

d u t y o f f a i r re p r e s e nt a t io n i s

below, the finding in each of these cases

commensurate with the scope of the

that the relevant union’s purported

union’s statutory authority as the exclusive

unlawful actions implicated a duty of fair

bargaining agent. Accordingly, a member

representation occurred in the context of

of the bargaining unit has a cause of action

plaintiffs-employees who were members

against the union for breach of that duty.

of the pertinent bargaining unit at the time

Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct.

the union took the allegedly unlawful

903, 17 L.Ed.2d 842 (1967). Conversely,

actions.

the union’s statutory duty of fair

representation does not extend to those In Brotherhood of R.R. Trainmen v.

persons who are not members of the Howard, 343 U.S. 768, 72 S.Ct. 1022, 96

pertinent bargaining unit. Allied Chem. & L.Ed. 1283 (1952), the case illustrating the

Allied Workers v. Pittsburgh Plate Glass “exception” alluded to above, the Supreme

Co., 404 U.S. 157, 181 n.20, 92 S.Ct. 383, Court held that a union may not use the

30 L.Ed.2d 341 (1971) (holding that powers accorded it under the law for the

because retirees are no longer members of purposes of racial discrimination against

the bargaining unit, the union has no duty employees who are not members of the

to represent them in negotiations with the bargaining unit represented by the union.

employer). In other words, exclusive The Supreme Court emphasized the

representation is a necessary prerequisite narrowness and limited reach of this

to the statutory duty to represent fairly. opinion in Allied Chemical: “But whatever

Sipes, 386 U.S. at 177. its theory, [Howard] does not require a

union affirmatively to represent non-

Recognizing the general principle

bargaining unit members or to take into

that a labor union’s statutory duty of fair

account their interests in making bona fide

representation extends only to the

economic decisions on behalf of those

bargaining unit it exclusively represents,

17

whom it does represent.” 404 U.S. at 181 incumbent flight attendants at United]

n.20. Ind eed , Allie d C hemical “ratified the allegedly violative [seniority]

unequivocally held that the bargaining agreement,” “the 1,202 incoming flight

agent is under no statutory duty to attendants [from Pan American] already

represent those not members of the had been working for United,” were

bargaining unit in negotiations with the already members of the AFA, and thus

employer. Id. Jones v. Trans World were part of the United bargaining unit to

Airlines, Inc., 495 F.2d 790 (2d Cir. 1974), which the AFA owed the duty of fair

involved two separate classes of Trans representation. 933 F.2d at 1106. Bernard

World Airlines employees--guards and v. Air Line Pilots Ass’n, 873 F.2d 213 (9th

passenger relations agents--who performed Cir. 1989) concerned the merger of Jet

many of the same functions. 495 F.2d at America and Alaska Airlines. Prior to the

793-94. Only the guards were represented merger, Alaska pilots were represented by

by a union. Id. Relying on findings that ALPA, while Jet America pilots were

the union “insist[ed] that the passenger unrepresented. Alaska Air Group, the

relations agent jobs were in the guard unit” acquiring corporate parent of Alaska

and that the passenger relations agents Airlines, operated Jet America and Alaska

“had performed guard duties all along,” separately for several months, then

the court held that the passenger relations announced it would merge the carriers.

agents were de facto members of the guard ALPA negotiated with Alaska regarding

bargaining unit. Id. at 797. The Second integration of the Jet America pilots with

Circuit thus concluded that the union the Alaska pilots for purposes of seniority.

breached its duty of fair representation by Despite repeated requests, Jet America

discriminating against the passenger pilots were prohibited from partaking in

relations agents based on their non-union the seniority discussions both prior to and

status. Id. at 798. This Circuit has following the effective date of merger on

characterized Jones as “stand[ing] for the October 1, 1987. An agreement between

limited and undisputed proposition that ALPA and Alaska was not reached until

discrimination against non-member October 6, 1987. In affirming the district

employees who are part of the bargaining court’s finding that ALPA breached of its

unit is impermissibly arbitrary if no duty of fair representation as to the Jet

relevant distinctions exist between the America pilots, the Ninth Circuit noted

union and non-union employees.” Deboles that there was no dispute that the non-

v. Trans World Airlines, Inc., 552 F.2d union Jet America pilots had entered the

1005 (3d Cir. 1977) (emphasis added). Alaska pilots’ bargaining unit prior to

Similarly, in Gvozdenovic v. United Air October 6, 1987, the date the agreement

Lines, Inc., 933 F.2d 1100 (2d Cir.), cert. adversely affecting plaintiffs’ seniority

denied, 502 U.S. 910, 112 S.Ct. 305, 116 rights was reached between ALPA and

L.Ed.2d 248 (1991), “as of the date” the Alaska. 873 F.2d at 216.

AFA [the union representing the

18

The parallels between this case and representation. To the extent Howard, as

that confronting the Ninth Circuit in clarified by Allied Chemical is an

McNamara-Blad v. Ass’n of Professional exception to this rule, it not implicated

Flight Attendants, 275 F.3d 1165 (9th Cir. here because the APA’s decision to

2002) are striking. In late 1998, American subordinate the seniority of most TWA-

purchased 80% of Reno’s outstanding LLC pilots was a bona fide economic

shares and announced it would merge the decision made to protect the interests of

operations of the two airlines. Prior to American’s pilots, for whom APA did

merger of the flight operations on August have a statutory duty to fairly represent.

31, 1999, APFA, the union representing Before the NMB consolidated the TWA-

American’s flight attendants (the Reno LLC pilots into the American bargaining

flight attendants were represented by unit on April 3, 2002, when it certified

another union), reached a seniority APA as the exclusive bargaining agent, the

integration agreement with American. pilots at American and the pilots at TWA-

This agreement endtailed all Reno flight LLC belonged to different bargaining

attendants, and was implemented as of units, each with its own exclusive

August 31, 1999. In affirming the district bargaining representative. It is only

court’s finding that, as a matter of law, the subsequent to April 3, 2002 that APA held

Reno flight attendants were not in the a statutory duty to the Class.

APFA’s bargaining unit and thus that the

This outcome is supported from a

APFA was not required to fairly represent

policy perspective. Appellants contend

them, the Ninth Circuit explained that

that following the reasoning espoused in

“[t]he work-forces of the two merging

McNamara-Blad will enable unions to

carrier become a single bargaining unit

conspire and time events in a manner

only when the carriers become a ‘single

designed to avoid duties of fair

carrier’ . . . American and Reno did not

representation that would otherwise be

b e co m e a ‘ s i n g l e c ar r ie r ’ f or

owed to a group. In this case, had the

representational purposes until August 31,

Class become employed by American (as

1999, after the seniority agreement

opposed to TWA-LLC) following closing

between the APFA and American was

of the merger, APA would most probably

reached.” 275 F.3d at 1170 (internal

have been the exclusive bargaining agent

citations omitted). The analogies between

for both the Class and American’s pilots

McNamara-Blad and the instant case are

and would have owed a statutory duty to

obvious.

both groups in negotiating seniority. To

Contrary to the Class’ assertion, the avoid a statutory duty to fairly represent

cases discussed above indicate that it is the Class, Appellants aver that APA and

actual inclusion in the bargaining unit–not American created the fiction that the two

“impending” inclusio n–that triggers groups of pilots were employed by

a tt ac h m ent of the duty of fair different entities (American and TWA-

19

LLC) and that the Class was not part of the Count II of the Second Amended

APA bargaining unit. This fiction enabled Restated Complaint further asserts that

APA to unilaterally negotiate the Class’ APA breached its duty of fair

seniority with American without the Class’ representation to the Class after April 3,

input. Appellants allege that Supplement 2002 by failing to require American to

CC was intentionally entered into by APA maintain the status quo as to the Class’

and American prior to APA’s petition to working conditions, including seniority.

extend its certification to cover the Class In lieu of maintaining the status quo,

to avoid the consequences of Bernard. Appellants allege that Supplement CC was

Nevertheless, we agree with APA that the imposed without following the requisite

Class’ allegations that ALPA breached its section 6 procedures of the RLA, 45

duties and conspired with APA to deprive U.S.C. § 156. The District Court

the Class of valuable rights does not justify dismissed the allegations for failure to

imposition of a fair representation duty on state breaches of the duty of fair

APA prior to April 3, 2002. representation, either because the

allegations are “too general in nature to

Appellants’ conspiracy concerns,

specify any actual DFR breach” or because

while legitimate, run counter to an

there was nothing for APA to negotiate on

important competing policy articulated in

behalf of the Class once Supplement CC

McNamara-Blad. Adopting Appellants’

became effective. For the following

position “would force unions to protect the

reasons, we affirm.

interests of any person who might become

a bargaining unit member to the detriment The “status quo” provision of

of current bargaining unit members. Such section 6 of the RLA directs that, while the

a duty would contravene the union’s major dispute resolution procedures are

statutory duty to protect the interests of its being followed, “rates of pay, rules or

own bargaining unit members.” 275 F.3d working conditions shall not be altered by

at 1173. In light of the fact that Appellants the carrier until the controversy has been

do have a remedy against their former finally acted upon as required by [the

bargaining agent, ALPA, this observation RLA]. . . .” 45 U.S.C. § 156; see also id. §

outweighs Appellants’ concerns regarding 152, Seventh (“No carrier . . . shall change

possible collusion and conspiracy. the rates of pay, rules, or working

conditions of its employees . . . except in

Because we agree with the District

the manner prescribed in [collective

Court that APA owed no duty of fair

bargaining] agreements or in section 156

representation to the Class prior to April 3,

of this title.”). The purpose of the status

2002, we affirm.

quo provisions is to impose an obligation

B. Alleged Breaches of the Duty of on the parties to make every reasonable

Fair Representation by APA effort to negotiate a settlement. The

Post-April 3, 2002 provisions promote compromise to avoid

20

strikes. See Detroit & Toledo Shore Line Appellants argue that the terms and

R.R. Co. v. United Transp. Union, 396 conditions embodied in the TWA-

U.S. 142, 148-49, 149 n.14, 90 S.Ct. 294, LLC/ALPA transition agreement, which

24 L.Ed.2d 325 (1969). With respect to expired by its own terms on April 3, 2002

ascertaining what the appropriate status when the NMB extended APA’s

quo conditions are, the Supreme Court has certification to cover the Class, constitute

counseled that “the status quo extends to the status quo and should have continued

those actual, objective working conditions in full force until the APA negotiated new

out of which the dispute arose, and clearly terms with American, with the exception

these conditions need not be covered in an of those limited terms which the parties

existing agreement.” Id. at 153. As such, had previously agreed would change. The

it is of no moment if the relevant collective transition agreement does not provide that

bargaining agreement upon which the the Class would be bound to any

dispute is based has expired. Because the agreement entered into between American

status quo derives from the RLA, and not and APA upon determination of single

contract, that agreement can still be used carrier status an d the tr ansitio n

to inform the court’s status quo agreement’s expiration.

determination. “[T]he inquiry is not one

We agree that the Class never

which looks to the parties’ collective

waived its statutory rights under the RLA.

bargaining agreements; instead, the act

Section 6 of the RLA is not implicated,

requires an objective determination of the

h o w e v e r, beca use im positio n o f

actual status quo.” Int’l Ass’n of

Supplement CC upon on the Class on

Machinists and Aerospace Workers v.

April 3, 2002 did not constitute a change

Aloha Airlines, Inc., 776 F.2d 812, 816 (9 th

in the Class’ status quo. The facilitation

Cir. 1985). Moreover, that the focus of the

agreement, signed by ALPA, APA, TWA-

status quo inquiry is on “actual, objective

LLC and American, provides that, “in the

working conditions” does not preclude the

event that APA and ALPA reach an

parties from entering into an explicit

agreement on an integrated seniority list .

agreement defining the specific conditions

. . such agreement will be presented to

that the parties want to constitute the status

American as a proposed modification of

quo during the appropriate renegotiation

Section 13 of the collective bargaining

period, even if such conditions differ from

agreement between American and APA.”

the actual, objective status quo. In other

In essence, the status quo became a right to

words, section 6 of the RLA does not

a particular process and whatever result it

prevent the parties from altering the actual,

yielded. The facilitation agreement did not

objective status quo by agreement. Airline

explicitly detail what would occur in the

Pilots Ass’n, Int’l v. Pan-Am. World

event the two unions failed to reach an

Airways, Inc., 765 F.2d 377, 381 (2d Cir.

agreement. Implicit in its arrangement,

1985).

however, is that the Class would be bound

21

by the terms of the American-APA After the NMB declared USAir and

collective bargaining agreement as those Shuttle to be a single transportation

terms existed at the time the NMB system, extinguished TWU’s certification,

extended APA’s certification as the and certified AFA as the bargaining

bargaining representative for the entire representative for both Shuttle and USAir

Class, whether or not such terms had been flight attendants, USAir insisted that the

modified by an agreement struck between Shuttle employees were still covered by

APA and ALPA. As such, Supplement the terms of the Eastern-TWU agreement

CC provided the status quo terms for the until a new agreement is negotiated. AFA

Class. This status quo determination is then filed suit against USAir, contending

not, as Appellants argue, akin to finding a that the AFA-USAir agreement necessarily

waiver of statutory rights. Instead, it establishes the terms and conditions to be

illustrates that the Class’ statutory rights applied to Shuttle flight attendants until a

were not in issue because there was no new agreement is negotiated. The D.C.

modification of the status quo. Pursuant to Circuit held that the Eastern-TWU

the facilitation agreement, the Class agreement fixed the status quo in the

consented to be bound by the APA- bargaining relationship between USAir

American collective bargaining agreement, and AFA on behalf of Shuttle flight

including Supplement CC, upon the attendants. Consequently, the terms of that

appropriate declarations by the NMB. agreement govern the working conditions

of Shuttle flight attendants until USAir and

Consideration of the terms of the

AFA agree otherwise. The Circuit defined

expired transition agreement does not alter

the issue as follows: “whether, as a matter

the analysis. With respect to the issue of

of law, the Board’s termination of TW U’s

seniority, the transition agreement did no

certification simultaneously caused the

more than rank the former TWA pilots vis-

‘status quo’ for Shuttle flight attendants to

a-vis themselves. Indeed, it intentionally

be changed so as to be defined by the

excluded any reference as to what sort of

terms in the AFA-USAir agreement rather

seniority agreement would ensue upon a

than in the Eastern-TWU agreement.” In

determination by the NMB that TWA-LLC

answering this in the negative, the court

and American constituted a single

made several observations pertinent to our

employer.

inquiry. The court pointed out that the

While no case is directly on point, AFA-USAir agreement did not mandate

Ass’n of Flight Attendants v. USAir, Inc., that its coverage be extended to new units

24 F.3d 1432 (D.C. Cir. 1994) lends of flight attendants. Significantly, the

support to this position. In AFA, USAir court states that “there is no doubt that

had assumed managerial control over AFA and USAir could have included some

Shuttle’s flight operations. The USAir such clause in their agreement to cover

pilots were represented by AFA, and the new units or groups of flight attendants

Shuttle pilots were represented by TWU. added to the USAir transportation system.”

22

This observation implies that an incoming First. 4 Appellees claim that only a certified

group would be bound by such a clause representative would have a right to bring

despite not being provided any opportunity a cause of action under 45 U.S.C. § 152,

to bargain over the clause. In the case at First & Ninth. The Class advances two

bar, the American/APA collective theories in asserting its right to bring a

bargaining agreement, as supplemented by cause of action under these provisions.

Supplement CC, did contemplate inclusion First, the Class argues that an implied right

of Appellants. American and APA had in of action against American and TWA-LLC

fact agreed upon the terms, including the is created in its favor by 45 U.S.C. § 152,

seniority terms, that would govern the Second & Ninth. Second, the Class

combined pilot bargaining unit when the contends that its claims against American

N M B issued a single empl oye r and TWA-LLC are properly brought as the

determination and extended the APA’s “hybrid” claims pursuant to Childs v.

representational certification to cover the Pennsylvania Federation Brotherhood of

combined unit. The D.C. Circuit’s Maintenance Way Employees, 831 F.2d

observations here are admittedly dicta, but 429 (3d Cir. 1987). The District Court

lend support to the view that the status quo found that 45 U.S.C. § 152, Second &

provisions of the RLA are not implicated Ninth do not create an implied right of

in this case. As such, Appellants’ claim action in favor of the Class and that the

that APA breached its duty of fair Class had no standing to bring Counts III

representation after April 3, 2002 by and IV against American and TWA-LLC.

failing to enforce the Class’ status quo is We affirm the District Court’s dismissal

without merit. on these grounds. 5

Accordingly, we affirm the District

Court’s decision on Count II of the Second 4

Although the RLA does not state an

Amended Restated Complaint. express duty to negotiate in good faith, this

Counts III & IV duty is implied throughout section 152.

While Appellants’ Second Amended

Count III of Appellants’ Second Restated Complaint cites to section 152,

Amended Restated Complaint charges First & Ninth, a duty to negotiate in good

American and TWA-LLC with breach of faith is more clearly implicated in section

the duty to treat with the Class’ certified 152, Second (“[a]ll disputes . . . shall be

representative pursuant to 45 U.S.C. § 152, considered, and, if possible, decided . . . in

Ninth. Count IV avers that American and conference between representatives

TWA-LLC each failed to negotiate in designated”). As explained in the text,

good faith, pursuant to 45 U.S.C. § 152, however, none of these provisions provide

a private cause of action for Appellants.

5

Our disposition of Counts III and IV

obviates the need to consider, as argued by

23

The RLA does not expressly grant U.S. 915, 97 S.Ct. 2177, 53 L.Ed.2d 225

a private right of action to enforce its (1977); Beckett v. Atlas Air, Inc., No. 95-

provisions. Although the legislative history 0480, 1995 WL 498703 (E.D.N.Y. Aug.

of the RLA is silent on the issue of 14, 1995); Int’l Ass’n of Machinists and

whether Congress intended to imply a Aerospace Workers v. Altair Airlines, Inc.,

private right of action under the RLA, see 481 F.Supp. 1359, 1360 (E.D. Pa. 1979).

Texas & N.O.R. Co. v. Brotherhood of Ry. Implying a private cause of action for

& S.S. Clerks, 281 U.S. 548, 50 S.Ct. 427, individual employees under 45 U.S.C. §

74 L.Ed 1034 (1930), “the failure of 152, Third & Fourth of the RLA is

Congress expressly to consider a private appropriate given that those sections

remedy is not inevitably inconsistent with prohibit carriers from discriminating

an intent on its part to make such a remedy against employees in connection with

available.” Transamerica Mort. Advisors, union organizing activities. See Int’l

Inc. v. Lewis, 444 U.S. 11, 17, 100 S.Ct. Ass’n of Machinists v. Northwest Airlines,

242, 62 L.Ed.2d 146 (1979). An intent to 673 F.2d 700, 707 (3d Cir. 1982). In

imply a private remedy may lie implicitly Adams, however, the Sixth Circuit held

in the language or structure of a statute. that “the Railway Labor Act confers no

Id. The Supreme Court has promulgated implied right of action upon an uncertified

factors for determining whether a private union to maintain a suit on behalf of

remedy is implicit in a statute not employees it seeks to represent.” Adams,

expressly providing one. Cort v. Ash, 422 547 F.2d at 322 (emphasis added).

U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 Furthermore, research has not revealed any

(1975). cases where the federal courts have

allowed individual employees to pursue

Courts have found private rights

RLA statutory claims outside of 45 U.S.C.

under other provisions of 45 U.S.C. § 152.

§ 152, Third & Fourth, except for duty of

Applying the Cort v. Ash factors, many

fair representation suits against a union.

courts have implied a private right of

action for individual employees within 45 In contrast to 45 U.S.C. § 152,

U.S.C. § 152, Third & Fourth of the RLA. Third & Fourth, 45 U.S.C. § 152, Ninth &

See, e.g., Roscello v. Southwest Airlines Second does not create a private right of

Co., 726 F.2d 217, 220 (5th Cir. 1984); action for individual employees. In

Adams v. Fed. Express Corp., 547 F.2d determining whether Appellants have an

319, 321 (6th Cir. 1976), cert. denied, 431 implied right of action under 45 U.S.C. §

152, Ninth & Second of the RLA, we must

employ the four factors set forth in Cort v.

American and TWA -LLC, whether Ash, 422 U.S. 66, 95 S.Ct. 2080, 45

Appellants’ claims fail to state claims for L.Ed.2d 26 (1975), specifically focusing

relief or pose a representational dispute on the first two factors: (1) whether

subject to the exclusive jurisdiction of the plaintiff is a member of the class “for

NM B.

24

whose especial benefit the statute was representative.” That the statute may

enacted”; and (2) whether there is indicate a congressional intent to create a

evidence of legislative intent to create or private cause of action for a duly certified

preclude the relief sought. Id. at 78; see representative that is injured pursuant to

Touche Ross & Co. v. Redington, 442 these provisions does not imply that

U.S. 560, 575-76, 99 S.Ct. 2479, 61 Congress intended to create a private right

L.Ed.2d 82 (1979). Unlike 45 U.S.C. § of action for any group or groups of

152, Third & Fourth, which are directed individual employees claiming to act on

specifically at the employer’s relationship behalf of the relevant employees. Cf.

with employees, 45 U.S.C. § 152, Ninth & Adams.

Second are directed at the employer’s

A number of additional factors

r e l a t i o n s h i p w i t h t h e ce r t i f i e d

militate against granting individual

representative. 45 U.S.C. § 152, Ninth of

employees a right to assert claims under 45

the RLA provides that the NMB shall

U.S.C. § 152, Second & Ninth. Allowing

resolve “disputes as to who are the

a group or groups of individual employees

representatives of the employees

to bring a cause of action under section

designated and authorized in accordance

152, Second or section 152, Ninth of the

with the requirements of this Chapter” and

RLA would undermine the provisions’

to certify a designated union as bargaining

purpose of providing for an organized

agent. 45 U.S.C. § 152, Ninth. It provides

process of negotiation between one

further that “upon receipt of such

employee representative and the employer,

certification the carrier shall treat with the

and could lead to chaos. A bargaining

representative so certified as the

agent, as opposed to any of its individual

representative of the craft or class for the

members, is in the best position to bring

purposes of this Chapter.” § 152, Ninth

forth these types of grievances because a

(emphasis added). 45 U.S.C. § 152,

union is required to act in the best interests

Second of the RLA similarly provides that

of all its principals. Moreover, and

“[a]ll disputes between a carrier . . . and its

im po rta nt ly, individ ual e m ployees

. . . employees shall be considered, and, if

claiming to be aggrieved by the failure to

possible, decided, with all expedition, in

treat or the failure to negotiate in good

conference between repre sentatives

faith already have a remedy–individual

designated and authorized so to confer, . .

employees may press a duty of fair

. ” § 152, Second (emphasis added).

repres enta tion claim again st th e

We agree with the District Court appropriate representative(s), as was done

that Appellants “are not within the by Appellants in this case, or the certified

definition of the class that the statute was representative may bring a suit against the

designed to protect” because “[t]he statute carrier. Pursuant to this analysis,

does not state that the carrier must ‘treat’ Appellants as a class lack an implied

with its employees, but rather with their private right of action to bring claims

25

asserting breaches of the duty to bargain proceed in federal court because he could

and duty to negotiate in good faith against not obtain meaningful relief before the

American and TWA-LLC because they are Board.

not and have never been a certified

Childs does not apply in this case.

representative of the TWA pilots.

To begin with, we expressly stated in

The District Court did not address Childs that we were addressing “the rare

the Class’ second theory in support of case in which the union, by breaching its

federal standing in Counts III and IV--that DFR, effectively precludes the employee’s

it could bring a “hybrid” claim under opportunity for obtaining relief before the

Childs against American and TWA-LLC. NRAB.” 831 F.2d at 441. Unlike Childs,

the Class in the instant suit has not alleged

In Childs, 831 F.2d 429, a railroad

that American and/or TWA-LLC breached

employee brought suit in federal court

a collective bargaining agreement. Childs

charging his union with a breach of its

also involved an employee’s loss of an

duty of fair representation, and also

express statutory right, whereas only an

charging his employer with a breach of the

implied right was claimed by the Class in

collective bargaining agreement. Even

the present case. M oreover, the stated goal

though the claim against the employer

of Childs was carrying out the RLA’s

constitutes a “minor dispute” within the

central policy of affording employees

exclusive jurisdiction of the NRAB, 45

some fair and efficient means of redressing

U.S.C. § 153, we held that an employee

their grievances. This is not the situation

may bring this claim against his employer

in the present case. If a union breaches its

in federal court. We held this because it

duty of fair representation by failing to

was alleged that the employee could not

require a carrier to treat with it, as required

obtain meaningful relief before the Board

by section 152, Ninth of the RLA, an

against the employer because the union’s

individual employee’s remedy lies in a

breach of its duty of fair representation had

duty of fair representation action against

precluded the employee from presenting

the union, not a major dispute claim

crucial evidence to the Board. We stated

against the carrier. As noted, Appellants

that “[o]ne important policy of the RLA .

may proceed against ALPA in this case.

. . is to afford employees means for relief.

Therefore, courts have form ulated Because we hold that Appellants

exceptions to the jurisdictional scheme of may not pursue the claims averred in

the RLA where it appears that without Counts III and IV, the District Court’s

such access to the federal courts the dismissal of these claims is affirmed.

employee’s right to redress would be

Counts V - IX

jeopardized.” 831 F.2d at 437. Thus, even

though an employee would normally have In Counts V through IX of their

to arbitrate a minor dispute before the Second Amended Restated Complaint,

Board, the employee was permitted to Appellants allege state-law violations by

26

Appellees, which they plead in the Trainmen v. Jacksonville Terminal Co.,

alternative to their federal claims. Counts 394 U.S. 369, 89 S.Ct. 1109, 22 L.Ed.2d

V and VI allege that American, TWA- 344 (1969). Under Garmon, state-law

LLC, and APA engaged in tortious and causes of action are presumptively

malicious interference and fraudulent preempted where they concern conduct

misrepresentation with respect to the that is actually or arguably either protected

collective bargaining agreement between or prohibited by federal labor relations

ALPA and TWA. Appellants claim that as law. Pennsylvania Nurses Ass’n v.

a result of the alleged interference and Pennsylvania State Educ. Ass’n, 90 F.3d

misrepresentations, ALPA agreed to the 797, 801 (3d Cir. 1996). The two explicit

waiver agreement to Appellants’ detriment exceptions to this preemption apply to

a n d b r e ached i t s d u t y o f f a ir conduct “deeply rooted in local feeling and

representation. Appellants proceed to responsibility” and to matters of only

claim in Counts VII and VIII that “peripheral concern” to federal labor

American and TWA-LLC breached the relations law. Garmon, 359 U.S. at 243-

transition agreement by failing to use their 44. Despite the generally sweeping nature

best efforts to secure a fair and equitable of Garmon preemption, the Supreme Court

process for seniority integration. APA has recognized judicial responsibility to

allegedly tortiously interfered with “determine the scope of the general rule by

American and TWA-LLC’s contractual examining the state interests in regulating

obligations under the transition agreement the conduct in question and the potential

by causing them to breach. Finally, Count for interference with the federal regulatory

IX alleges that American, TWA-LLC, scheme.” Farmer v. United Bhd. of

APA, and ALPA conspired with the Carpenters and Joiners of Am., Local 25,

common design of abrogating the TWA 430 U.S. 290, 297, 97 S.Ct. 1056, 1062, 51

seniority integration provisions and L.Ed.2d 338 (1977).

endtailing the vast majority of TWA pilots

A principal purpose of the RLA is

in favor of the incumbent American pilots.

to provide for the prompt and orderly

The District Court dismissed Counts V

settlement of all disputes over pay, rules,

though IX as preempted by the RLA.

or wor king c ondi t io n s a n d th e

Appellants argue that the District interpre tation a nd application of

Court erred in dismissing their state-law agreements concerning pay, rules, or

claims against APA, American, and TWA- working conditions. RLA § 2, 45 U.S.C.

LLC. The District Court’s decision relied § 151a. Appellants’ state-law claims all

on the preemption doctrine established in involve alleged interference with their

San Diego Building Trades Council v. employment rights as established by the

Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 various agreements that govern their

L.Ed.2d 775 (1959), which was extended wages and other benefits as well as their

to the RLA in Brotherhood of Railroad right to be fairly represented under RLA §

27

2, 45 U.S.C. § 152. Thus the property District Court’s finding that APA owed no

rights at issue are founded upon federal duty necessarily means that the RLA does

law, derive their strength and protection not apply to this conduct. For support,

from federal law, and exist to effectuate a Appellants rely on Krantz v. Air Line

nationwide federal labor policy. See Pilots Association, International, 427 S.E.

Wilkes-Barre Pub. Co. v. Newspaper 236 (Va. 1993), where the Virginia

Guild of Wilkes-Barre, Local 120, 647 Supreme Court held that the RLA did not

F.2d 372, 380-81 (3d Cir. 1981). preempt a job applicant’s right to sue a

union for tortious interference with

Having determined that Appellants’

pro spective em plo ymen t. Wh ile

contractual rights are protected by federal

expressing no opinion on the Krantz

labor law, which satisfies the presumptive

holding itself, Appellants’ situation is

preemption of Garmon, we now consider

distinguishable. The court in Krantz based

whether any exception to this presumption

its decision on the proposition that a job

applies. The state-law claims alleged seek

applicant “has no federally protected right”

to protect Appellants’ rights as established

to employment under the RLA. Krantz,

through their collectively-bargained

427 S.E. at 329-30. Here Appellants seek

agreements. Thus they do not concern

to protect their rights in an existing

conduct touching interests deeply rooted in

employment relation as provided by the

local feeling and responsibility. See

relevant collective bargaining agreements

Wilkes-Barre, 647 F.2d at 381 (holding

and the statutory protections of the RLA.

that tortious interference with a labor

These rights stem from federal law, so

contract is not conduct touching interests

Krantz is inapposite.

deeply rooted in local feeling and

responsibility). Nor is this a matter of only The rights and duties of unions in

peripheral concern to federal law. Clearly, carrying out their representational

the process of seniority integration in the functions is an area where “the policy of

event of an acquisition directly affects the the law is so dominated by the sweep of

wages and other benefits of workers. The federal statutes that legal relations which

RLA determines the rights, obligations, they affect must be deemed governed by

a n d duti e s o f employees, the ir federal law having its source in those

representatives, and carriers with respect statutes, rather than by local law.” Condon

to negotiations and agreements concerning v. Local 2944, United Steelworkers, 683

such a central aspect of employment. F.2d 590, 594-95 (1st Cir. 1982) (quoting

Thus, federal law is directly concerned Local 20, Teamsters Union v. Morton, 377

with the issues here. U.S. 252, 261, 84 S.Ct. 1253, 1259, 12

L.Ed.2d 280 (1964)). The importance of

Appellants argue that with respect

uniform relations among employees,

to their claims against APA, there can be

unions, and employers may call for

no preemption of state-law claims if APA

preemption of state protections of federal

owed no duty to them. They assert that the

28

rights, even where federal law does not limitation on the RLA’s scope. The RLA

impose an analogous duty. See Kaufman covers “disputes between an employee or

v. Allied Pilots Ass’n, 274 F.3d 197 (5th group of employees and a carrier or

Cir. 2001) (holding airline passengers’ carriers by air” not merely disputes

state-law claims against union preempted between a carrier and its own employees.

by federal law, despite lack of equivalent RLA § 204, 45 U.S.C. § 184. We thus

remedy to passengers). Appellants’ relief believe that congressional intent was to

for any violations of their contractual or submit such disputes to the RLA

statutory rights must come in the manner resolution mechanisms. See Pyles v.

prescribed by federal law. United Air Lines, Inc., 79 F.3d 1046,

1050-52 (11th Cir. 1996) (holding that

Appellants argue with respect to the

employees of one carrier may seek relief

claims against American, that the RLA

under the RLA for disputes with another

cannot apply to the period of time for

carrier). Preemption of the state-law

which Appellants were not employed by

claims is therefore appropriate, and

American and thus the state-law claims

Appellants’ argument must be rejected.

cannot be preempted. Appellants rest their

argument primarily on our decision in We conclude that Appellants’ state-

Felice v. Sever, 985 F.2d 1221 (3d Cir. law claims seek to protect their contractual

1993). In Felice, we held that state-law rights negotiated under the auspices of the

claims that did not implicate a collective RLA and not any independent state-law

bargaining agreement covered by § 301(a) right. Cf. Hawaiian Airlines Inc. v. Norris,

of the Labor Management Relations Act 512 U.S. 246, 260-61, 114 S.Ct. 2239,

(LMRA) did not give rise to immunity of 2247-48, 129 L.Ed.2d 203 (1994) (finding

union officials under § 301(b). In part, we a state whistleblower statute to provide an

reasoned that because the plaintiff in that independent right not to be discharged).

case was not covered by a collective Appellants’ state-law claims were properly

bargaining agreement and thus not dismissed as preempted by the RLA.

represented by a labor organization, § 301

V. Conclusion

did not apply to the relationship between

the parties and could not serve to preempt We reverse and remand on Count I

state law. This case, though instructive, is of Appellants’ Second Amended Restated

not directly applicable because it involves Complaint. We affirm the District Court’s

provisions of the LMRA which have no dismissal of all remaining Counts of the

corresponding provision in the RLA. Second Amended Restated Complaint.

Appellants urge that the RLA and

its arbitration provisions only apply to

FISHER, Circuit Judge, dissenting.

disputes between a carrier and its

employees. However, the plain language I dissent because I disagree with the

of the statute does not support such a majority’s analysis of Count I. I join the

29

majority’s affirmance of the remainder of waiver clearly and unmistakably included

the claims on appeal. But I would affirm a waiver of the Class’ contractual right to

the district court’s determination of the arbitrate seniority integration issues and

untimeliness of the Class’ claims in Count their right to bargain over seniority after

I asserting that the Air Line Pilots American’s purchase of TWA, any claim

Association (“ALPA”) breached its duty of that ALPA breached its duty of fair

fair representation (“duty”) under the representation to the Class accrued at that

Railway Labor Act, 45 U.S.C. § 151, et. time.

seq.

There were no rays of hope to

A fundamental premise of the extend the accrual of the duty of fair

majority opinion is that Supplement CC representation claims based on ALPA’s

(the November 8, 2001 agreement between post-waiver actions or inaction. The

American’s pilots and American regarding waiver and its attendant agreements (the

seniority integration of former TWA pilots Transition Agreement between the Class

and American’s pilots) was not the pilots and TWA, LLC and the “best

inescapable result of the Class’ waiver of efforts” letter from American) eliminated

Allegheny-Mohawk labor p rotective ALPA’s ability to effectively bargain with

provisions in April of 2001. The subject either TWA, LLC or American for any

of the scope of the waiver and whether it seniority integration different from that

included the right to bargain over seniority which existed at the time of the waiver.

integration post-purchase was precisely Because of the limitations these

why American required the waiver of agreements imposed upon ALPA’s ability

those rights as a condition precedent to its

purchase of TWA’s assets out of

bankruptcy. This was to avoid conflict

between the collective ba rgainin g

agreements applicable respectively to the

American and TWA pilots regarding C.A.B. 22, 31-40 (1972). The collective

seniority (which absent the waiver bargaining agreement between American

c o n t a in e d irrecon cilable s eniorit y and its pilots (represented by the Allied

provisions). 6 Because the April 2001 Pilots Association) contained a provision

that pilots new to American due to the

acquisition of another airline will not

6

The collective bargaining agreement begin to accrue seniority until they begin

between TWA and its pilots contained working for American (endtailing).

Allegheny-Mohawk labor protective Seniority governs rates of pay, flight

provisions including the right to arbitrate schedules and routes, type of airplane

seniority integration in the event of a flown, whether pilots fly as captain or first

merger with another airline. See officer and their eligibility for furlough

Allegheny-Mohawk Merger Case, 59 and recall.

30

to bargain with TWA, LLC 7 or American representation of TWA pilots both prior

regarding seniority, any meaningful ray of and subsequent to American’s purchase of

hope was extinguished. The only actions TWA out of bankruptcy. The Class

that ALPA could take were collateral to contends that in April 2001, ALPA

the real issue – a desire by the TWA pilots coerced the TWA Master Executive

to get that which was waived in April 2001 Council into waiving the TWA pilots’

– the right to demand a fair and equitable contractual labor protective provision to

seniority integration. Consequently, the arbitrate over seniority integration because

claim that ALPA breached its duty of fair of ALPA’s alleged interest in organizing

representation is untimely and the district the American pilots, who were then

court’s grant of summary judgment should represen ted by the Allied Pilots

be affirmed.8 Association. In its Second Amended

Restated Complaint filed January 27,

I.

2003, the Class pleaded for the first time

The Class alleges in Count I that additional duty claims, all of which flow

ALPA violated its du ty of fair from the waiver of the right to arbitrate

representation relating to ALPA’s seniority integration. Those claims are

that ALPA: (1) failed to require American

7

and TWA, LLC to negotiate the terms of

TWA, LLC was the wholly-owned the seniority integration with ALPA while

subsidiary of American that employed the ALPA remained the certified collective

former TWA pilots upon American’s bargaining agent for the Class; (2) failed to

purchase of TW A’s assets fro m take action to challenge Supplement CC

bankruptcy. though the agreement was entered into to

8 control matters relating to rates of pay,

Summary judgment arose in the

rules and working conditions of the Class

context of the Appellees’ motion to

and was entered into with other than

dismiss the second amended class

ALPA as the Class’ collective bargaining

complaint pursuant to Rule 12 (b)(6) of the

agent in violation of the Railway Labor

Federal Rules of Civil Procedure. Because

Act; and (3) that ALPA permitted

the parties relied on information outside

American and TWA, LLC to require the

the pleadings, the 12(b)(6) motion was

TWA Master Executive Council 9 to

converted to a motion for summary

negotiate seniority integration with

judgment. The Class filed a Rule 56(f)

American’s pilots’s union, the Allied

affidavit in opposition to the motion.

However, that Affidavit did not provide

with any specificity the information sought

9

to be discovered to defeat the pending TWA pilots were represented by

motion. But the question of the propriety ALPA through the Master Executive

of the conversion in light of the Rule 56 Council comprised of TWA pilots,

motion is not before us. including some members of the Class.

31

Pilots Association. waiving their sen iority integration

protections or fighting to retain them at the

At the crux of the Class’ claims are

risk of forcing TWA into liquidation. See

the various agreements made on behalf of

In re Trans World Airlines, Inc., 322 F.3d

the TWA pilots in April of 2001 in relation

360 (3d Cir. 2000). In response to the

to American’s purchase of TWA assets,

motion, the TWA Master Executive

which combined to prevent ALPA from

Council resolved to waive the seniority

negotiating seniority integration for the

integration protections in exchange for

former TWA pilots. A brief recitation of

American’s assurances that it would “use

the relevant agreements evidencing the

its reasonable best efforts” with Allied

scope of the waiver and events

Pilots Association to “secure a fair and

surrounding their execution is necessary to

equitable process for the integration of

frame the accrual analysis.

seniority” upon the sale of TWA to

II. American.10

On January 9, 2001, American TWA and its pilots’ Master

Airline subsidiary TWA, LLC agreed to

purchase TW A assets out of bankruptcy.

10

TWA’s January 10, 2001 filing for The letter by American to TWA

bankruptcy protection was part of the Master Executive Council President

planned acquisition by American. But an Robert Pastore provides:

essential condition of American’s purchase

of the TWA assets was that American, I understand that you wish to have

which agreed to hire almost all of TW A’s confirmation o f A me r ican ’s

unionized employees through its wholly- commitment on its part with respect

owned subsidiary TWA, LLC, required the to process for resolving integration

elimination of labor protective provisions of seniority. For its part American

within TWA’s collective bargaining Airlines, Inc. (“American”) agrees

agreements with its unions. Specifically, to use its reasonable best efforts

American required the waiver of the right with its labor organizatio n

of TWA pilots to arbitrate seniority representing the airline pilots craft

integration in the event of a purchase of or class to secure a fair and

TWA by another airline. equitable process for the integration

of seniority. In that regard,

TWA filed a motion in bankruptcy

American will engage a facilitator

court on March 15, 2001, pursuant to 11

to organize meetings with the labor

U.S.C. § 1113 seeking to abrogate the

organizations representing airline

TWA-ALPA collective bargainin g

pilots and American and TWA-

agreement for the pilots’ refusal to forego

LLC. American agrees to adopt the

their seniority integration protections. The

procedures that result from this

TWA pilots were faced with the choice of

process for seniority integration.

32

Executive Council subsequently entered any bargaining obligations under the

into a Stipulation approved by the Railway Labor Act, TWA, LLC’s sole

Bankruptcy Court on April 6, 2001. obligation shall be to confer with ALPA

Pursuant to that Stipulation, TWA on all changes...” and provide those

withdrew its section 1113 motion and was changes in writing.

authorized to eliminate the seniority

III.

integration protections from its pilot’s

collective bargaining agreement. The Claims for breach of the duty of fair

terms of the Stipulation and the representation under the Railway Labor

circumstances and import of the waiver of Act are subject to a six-month limitations

seniority integration protections were period. Miklavic v. USAir, Inc., 21 F.3d

echoed in the April 3, 2001 announcement 511, 556 (3d Cir. 1994); Sisco v.

made to TWA pilots by Robert Pastore, Consolidated Rail Corp., 732 F.2d 1188

President of the pilot’s Master Executive (3d Cir. 1984) (applying DelCostello v.

Council. Int’l Board of Teamsters, 462 U.S. 151,

158 (1983). The district court concluded

On April 9, 2001, the Bankruptcy

that the Class’ claims against ALPA for

Court approved the sale of TWA’s assets,

breach of the duty of fair representation

resulting in the Class becoming employees

accrued at the latest by April 6, 2001,

of TWA, LLC. That same date, ALPA

when the Stipulation waiving seniority

and TWA, LLC entered into a “Transition

integration rights was entered by the

Agreement,” providing that ALPA would

Bankruptcy Court. The court reasoned

rema in the ex clusiv e bargainin g

that since the resolution waiving seniority

representative for the former TW A pilots

integration rights was agreed to on April 2,

until the National Mediation Board found

2001, and approved by the Bankruptcy

American and TWA, LLC to be a single

Court on April 6, 2001, the claims against

carrier whose pilots were represented by

ALPA, which were not filed until

the Allied Pilots Association. By its terms

September 3, 2002, clearly were beyond

(set forth in Section 30), the Transition

the six-month limitations period. In so

Agreement was not amendable during the

holding, the district court relied upon

transition period and would expire upon

Local Lodge No. 1424 v. National Labor

National Mediation Board certification of

Relations Board, 326 U.S. 411, 415-17

single carrier status. Section 1B of the

(1960) for the proposition that the

Transition Agreement further provided

limitations period begins to run from the

that TWA-LLC could modify the work

date of the execution of the challenged

rules and benefits as necessary upon 21-

agreement. Bensel v. Allied Pilots Ass’n,

days notice in order to effect the transition

271 F. Supp 616, 622 (D. N.J. 2003).

of the former TWA pilots to American.

Significantly, during that 21-day notice The majority concluded that Local

period, section 1B specified that “in lieu of Lodge bars the Class’ claims only if the

33

limitations period associated with ALPA’s district court recognized, that the waiver

initial breach of its duty accrued on April subsumed any rights to bargain for

6, 2001, and that all subsequent breaches seniority integration from April 2001

of its duty were “inescapably grounded” in forward. That includes the claims that

that breach. It did not find that these subsequent to the waiver, ALPA breached

conditions were met. Local Lodge, 326 its duty by failing to challenge Supplement

U.S. at 422. Unlike the majority, however, CC, failing to negotiate seniority

I conclude that both of these conditions integration with the Allied Pilots

were met to warrant application of Local Association during the transition period,

Lodge for accrual purposes. I disagree that and permitting American to dictate that

Supplement CC 11 and the allegations that seniority integration would be negotiated

ALPA breached its duty of fair between the two pilot’s unions.

representation post-waiver constituted

A.

breaches separate from the initial breach of

ALPA’s duty – that it coerced the pilots The waiver must be viewed not as

into waiving their seniority integration a singular act in April 2001 but as a series

protections. Rather, I conclude, as the of agreements that effectively waived any

right to bargain for seniority integration

with either TWA, LLC or American. First,

11 the TWA Master Executive Council

From February to October 2001, the

agreed to waive seniority integration

Allied Pilots Association and the TWA

protections in exchange for TWA’s

Master Executive Council attempted to

withdrawal of its bankruptcy motion to

negotiate seniority integration terms, even

eliminate its contractual obligations with

using the services of a mediator paid for by

its unions. That waiver also was

American. When those negotiations failed

conditioned on American’s promise to use

to produce an agreement regarding

its “best efforts” to facilitate an agreement

seniority integration, American and its

between the two pilot’s unions regarding

pilots executed a seniority integration

seniority integration. But that promise by

agreement known as Supplement CC on

American represented an obligation merely

November 8, 2001, which called for some

to support the process of negotiation

dovetailing of TWA pilots among the

between the dueling unions in their

American pilots for seniority purposes.

attempt to reach an agreement concerning

That agreement amended Section 13 of the

a “fair and equitable” seniority integration.

original agreement between American and

It was not an obligation for American to

its pilots that otherwise would have

bargain with ALPA or the Master

governed seniority integration. Supplement

Executive Council regarding a “fair and

CC would not become effective until

equitable” seniority integration. That is

single-carrier designation and certification

what was forfeited in April 2001 when the

of a collective bargaining agent for the

seniority integration protections were

combined pilot class.

34

waived. B.

Second, the Transition Agreement The w aiver c l ea r l y and

by its terms was not amendable and unequivocally included the right to bargain

expired by its own terms once TWA, LLC with either TWA, LLC or American

and American are deemed a single carrier regarding seniority. See Gullickson v.

by the National Mediation Board. Nor did Southwest Airline Pilots’ Association, 87

it require that TWA, LLC engage in any F.3d 1178 (10th Cir. 1996).

bargaining with ALPA regarding changes

Gullickson involved the purchase of

to work rules or benefits during the

Morris Air, whose pilots were non-union,

transition period. All that was required

by Southwest Airlines. Southwest sought

was written notice 21 days before any

a waiver of the scope provisions of its

changes were to be made.

agreement with the Southwest pilots’

Given these agreements, the claims union. Despite the fact that Morris pilots

concerning ALPA’s breach of its duty were not represented by it, the Southwest

subsequent to the waiver are in fact pilots’ union met with Morris pilot

“inescapably grounded” in the waiver and representatives and obtained a list of

the attendant agreements of April of 2001. priorities regard ing job secu rity.

All that was left was a promise by Thereafter, the union met with the

American to use its “best efforts” to Southwest and reached a Letter Agreement

support union to union negotiations containing a scope of waiver clause as well

regarding seniority integration. The claims as seniority provisions giving Morris pilots

that ALPA breached its duty of fair an effective seniority date of January 1,

representation thus are inescapably 1994. Morris pilots attended various

grounded in ALPA’s conduct in

negotiating the waiver. Consequently, the

claims are untimely. 12

the reasons stated within this opinion, I

diverge from the majority’s conclusion

that “rays of hope” tolled the accrual of the

12

The majority finds that the claims that initial claim that ALPA breached its duty

ALPA also breached its duty post-waiver until April 2002. Rather, because that

are timely using “relation back” under Fed. breach of duty claim accrued at the time of

R. Civ. P.15 (c). However, that analysis is the waiver, relation back cannot save the

premised on the finding that the initial claims that ALPA breached it duty

claim that ALPA breached its duty filed on subsequent to the waiver. The initial

September 3, 2002 – that ALPA coerced complaint must have been timely in order

the TWA M aster Executive Council into for relation back to save the claims that

waiving seniority integration given ALPA breached its duty subsequent to the

ALPA’s interest in organizing the waiver. See e.g., Henderson v. Bolanda,

American pilots – was timely filed. For 253 F.3d 928, 931 (7 th Cir. 2001).

35

informational meetings conducted by the “[a] voluntary choice may not be

Southwest pilots’ union regarding the withdrawn because the choice was an

terms of that Letter Agreement. effort to make the best of a bad situation.

Adult pilots, of sound mind and well

In February 1994, the Southwest

aware of the consequences of their acts,

pilots’ union became the collective

must expect to keep contracts, even when

bargaining representative for the Morris

they wish they could have made better

pilots. Three months later, Morris pilots

deals.” Rakestraw v. United Airlines, Inc.,

ratified a collective bargaining agreement.

981 F.2d 1524, 1534 (7 th Cir. 1992).

On June 29, 1994, Morris pilots sued the

Southwest pilots’ union and Southwest for IV.

breach of the duty of fair representation

Nor would I apply the “ray of hope”

resulting from the endtailing of the Morris

doctrine to toll the accrual of the claims

pilots in the course of a seniority

that ALPA breached its duty until April

integration and failure to permit Morris

18, 2002, the date the arbitrator of the

pilots an opportunity to ratify the Letter

System Board of Adjustment denied the

Agreement. But the Court found that the

Class’ challenge based on American’s

language of the Southwest-Mo rris

“best efforts” promise. See Childs v.

collective bargaining agreement was

Penn. Fed’n Brotherhood of Maintenance

sufficiently clear to inform M orris pilots

Way Employees, 831 F.2d 429, 434 (3d

that ratification of it necessarily ratified

Cir. 1987) (holding that duty of fair

the effect of the Letter of Agreement

representation claim does not accrue while

between the Southwest pilots union and

the union continues to actively represent

Southwest regarding seniority integration.

the employee and offers rays of hope that

Likewise, as the comments of TWA the employee’s cause will prevail). The

Master Executive Council President Class contends, and the majority accepted,

Robert Pastore to the entire pilot group that ALPA’s arbitration of American’s

reveal, the TWA M aster Executive alleged breach of its “best efforts” letter

Council took the best option available – necessarily impacted the viability of

agreeing to the waiver to facilitate the Supplement CC, which could have

purchase of TWA by American and to resulted in the invalidation of Supplement

save as many contractual provisions as CC.

possible while still having to negotiate

The fundamental flaw in the

seniority integration with the American

majority’s application of the Childs “ray of

pilots’ union during the transition period.

hope” doctrine is its reliance on the

This, when coupled with the language of

premise that Supplement CC was not the

the various agreements (as discussed supra

inescapable result of the waiver of the

at part III.A), supports the conclusion that

seniority integration protections in April of

there was a clear and unmistakable waiver

2001. “Rays of hope” cannot sustain a

of the right to bargain for seniority. But

36

claim when the waiver of seniority Childs recognized that “[i]f the union can

integration protections gutted any chance indeed remedy the cause of the employee’s

that ALPA could continue to represent the dissatisfaction, it should be allowed to do

Class to reach a more advantageous so, thus obviating federal judicial

seniority integration agreement. For the involvement.” Childs, 831 F.2d at 434;

reasons stated previously, the waiver of see also Whittle v. Local 6 41,

seniority integration protections, and the International Brotherhood of Teamsters,

attendant agreements executed in early Chauffeurs, Warehousemen and Helpers of

April 2001, eliminated both contractual America, AFL-CIO, 59 F.3d 487 (3d Cir.

and any statutory duties to bargain for 1995).

seniority thereafter. In other words, it

Childs and Whittle both dealt with

stripped ALPA of any real negotiating

claims to overturn unfavorable arbitration

strength or bargaining leverage with

awards on grounds that the union

respect to the seniority integration of

committed errors in the arbitration

former TWA pilots within American.

proceedings. In Childs, the union declined

Moreover, even if ALPA prevailed in the

to represent Childs before the Board due to

arbitration concerning the “best efforts”

a lack of corroborative evidence which

letter, and American was found to have

Childs claimed to have provided to the

breached its “best efforts” promise, it still

Union during the grievance process. In

would not eliminate the fact that the

Whittle, the union allegedly failed to

Transition Agreement between ALPA and

prosecute a seniority case vigorously

TWA, LLC was not amendable and

before the joint local committee. Those

precluded negotiations with TWA, LLC

decisions are premised upon the policy to

concerning seniority integration. Nor

resolve disputes where possible through

would a victory require American to

arbitration, thus obviating the need for

bargain with ALPA concerning seniority

judicial involvement if the union is able to

integration. In order for a “ray of hope” to

remedy the cause to the employees’

exist, there must be a meaningful hope that

satisfaction. See Childs, 831 F.2d at 434.

i t c a n r e m ed y t h e e m p l o ye e ’s

The claims in those cases therefore did not

dissatisfaction.

accrue for statute of limitations purposes

Childs was premised on promoting until the employee learned of the

the federal labor policies of: (1) avoiding arbitrator’s award. Otherwise, there was

unnecessary federal litigation; (2) allowing no way for employees to know whether

full play of the administrative procedure; they suffered any loss from the union’s

and (3) sparing the employee the Hobson’s alleged breach until the arbitration

choice between letting the statute of decision issued. Whittle, 56 F.3d at 490.

limitations run and antagonizing his best

Here, however, the cause of the

advocate. 831 F.2d 434-35, 436. As to

employee’s dissatisfaction was not

avoiding unnecessary federal litigation,

American’s breach of its “best efforts”

37

obligation. Rather, the Class sought

exactly that which it sacrificed in order to

facilitate American’s purchase of TWA –

the right to arbitrate or otherwise dictate

the senio rity integration process.

Extending a “ray of hope” here, where the

waiver extinguished any meaningful

prospect that the TWA pilots could control

seniority integration, is not warranted on

this record.

IV.

For the foregoing reasons, I would

affirm the judgment of the district court

granting summary judgment on Count I

regarding all of the alleged breaches of the

duty of fair representation. I concur in the

remainder of the majority opinion.

38