Petition for Writ of Certiorari — Kevin D. Wickstrom, et al., Petitioners v. Air Line Pilots Association, International

NO. ________

In the

Supreme Court of the United States

KEVIN D. WICKSTROM, ET AL.,

Petitioners,

v.

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

John M. Pierce

Counsel of Record

JOHN PIERCE LAW P.C.

21550 Oxnard Street, 3rd Floor

Woodland Hills, CA 91367

(321) 961-1848

jpierce@johnpiercelaw.com

February 12, 2026

SUPREME COURT PRESS

Counsel for Petitioners

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTIONS PRESENTED

1. Whether a union’s duty of fair representation

under the Railway Labor Act includes an obligation to

enforce the Act’s status quo requirements under 45

U.S.C. § 156, or whether union “discretion” extends to

declining enforcement of mandatory statutory process

and protections when members face termination.

2. Whether a duty of fair representation claim

alleging a union’s failure to enforce mandatory statutory requirements may be dismissed at the pleading

stage for failure to prove subjective bad faith or discriminatory intent before discovery.

ii

PARTIES TO THE PROCEEDINGS

Petitioners and Plaintiffs-Appellants below

●

Kevin D. Wickstrom

●

James R. Breitsprecher

●

John Ellis

●

Christopher P. Gates

●

Forace Hogan

●

Erik W. Wichmann

●

Robert D. Williamson

Respondent and Defendant-Appellee below

●

Air Line Pilots Association, International

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Petitioners

state that no Petitioner is a corporation.

iii

LIST OF PROCEEDINGS

Pursuant to Supreme Court Rule 14.1(b)(iii), the

following proceedings are directly related to this case:

●

Wickstrom v. Air Line Pilots Ass’n, Int’l, No. 1:23cv-02631 (N.D. Ill.), dismissed with prejudice on

September 5, 2023; motion for leave to amend

denied December 11, 2024.

●

Wickstrom v. Air Line Pilots Ass’n, Int’l, No. 251036 (7th Cir.), affirmed October 8, 2025; petition

for rehearing en banc denied November 14, 2025.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

PARTIES TO THE PROCEEDINGS ......................... ii

CORPORATE DISCLOSURE STATEMENT ............ ii

LIST OF PROCEEDINGS ......................................... iii

TABLE OF AUTHORITIES ..................................... vii

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

STATUTORY PROVISIONS INVOLVED ................. 2

INTRODUCTION ....................................................... 3

STATEMENT OF THE CASE .................................... 5

A. The Railway Labor Act Framework ................ 5

B. The United Pilot Agreement and ALPA’s

Representation ................................................. 7

C. United’s Implementation of a New Employment Policy and ALPA’s Response .................. 8

D. The Grievance Proceedings ........................... 12

E. Procedural History ......................................... 14

REASONS FOR GRANTING THE PETITION ....... 16

I.

THE SEVENTH CIRCUIT’S DECISION CONFLICTS

WITH THIS COURT’S PRECEDENT ON THE SCOPE

OF UNION DISCRETION UNDER THE DUTY OF

FAIR REPRESENTATION .................................... 16

A. A Union’s Statutory Authority Under the

RLA Carries a Corresponding Obligation

to Enforce Statutory Requirements ......... 16

v

TABLE OF CONTENTS (Cont.)

Page

B. The Decision Below Improperly Extends

Union Discretion to Encompass NonEnforcement of Federal Law .................... 18

C. This Case Presents an Issue of National

Importance ................................................ 20

II. THE SEVENTH CIRCUIT’S APPLICATION OF THE

O’NEILL STANDARD IMPROPERLY HEIGHTENS

PLEADING REQUIREMENTS FOR DFR CLAIMS .. 21

A. The Decision Below Requires Proof of

Subjective Intent at the Pleading Stage .. 22

B. The Seventh Circuit’s Approach Conflicts

With This Court’s Pleading Precedent ..... 23

C. The Decision Below Exacerbates Confusion Over the Proper Pleading Standard

for DFR Claims ......................................... 24

CONCLUSION.......................................................... 25

vi

TABLE OF CONTENTS (Cont.)

Page

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion, U.S. Court of Appeals for the

Seventh Circuit (October 8, 2025) ..................... 1a

Judgment, U.S. Court of Appeals for the

Seventh Circuit (October 8, 2025) ................... 15a

Memorandum Opinion and Order, U.S. District

Court for the Northern District of Illinois

(December 11, 2024) ......................................... 16a

Judgment, U.S. District Court for the Northern

District of Illinois (December 11, 2024) ........... 31a

Notice of Issuance of Mandate, U.S. Court of

Appeals for the Seventh Circuit

(November 24, 2025) ........................................ 33a

Memorandum Opinion and Order, U.S. District

Court for the Northern District of Illinois

(September 5, 2023).......................................... 37a

REHEARING ORDER

Order Denying Petition for Rehearing,

U.S. Court of Appeals for the Seventh Circuit

(November 14, 2025) ........................................ 54a

vii

TABLE OF AUTHORITIES

TABLE OF AUTHORITIES

Page

CASES

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ........................................... 23

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) ........................................... 23

Brotherhood of Locomotive Engineers &

Trainmen v. Union Pacific Railroad,

879 F.3d 754 (7th Cir. 2018) ............................. 19

Detroit & Toledo Shore Line R.R. v. United

Transp. Union, 396 U.S. 142 (1969) ............. 6, 20

H.K. Porter Co. v. NLRB,

397 U.S. 99 (1970) ............................................. 17

Hawaiian Airlines, Inc. v. Norris,

512 U.S. 246 (1994) ............................................. 5

Pilots Ass’n, Int’l v. O’Neill,

499 U.S. 65 (1991) ............... 4, 5, 6, 16, 17, 18, 21

Steele v. Louisville & Nashville Railroad,

323 U.S. 192 (1944) ........................................... 16

Swierkiewicz v. Sorema N.A.,

534 U.S. 506 (2002) ........................................... 23

Vaca v. Sipes,

386 U.S. 171 (1967) ....................................... 5, 21

STATUTES

28 U.S.C. § 1254(1) ..................................................... 1

45 U.S.C. § 151 et seq.,

Railway Labor Act (“RLA”) ................. 3-7, 10, 12,

................................................................. 13, 15-21

viii

TABLE OF AUTHORITIES (Cont.)

Page

45 U.S.C. § 152, First............................................ 2, 17

45 U.S.C. § 152, Fourth .............................................. 6

45 U.S.C. § 152, Seventh .............................. 2, 4, 5, 17

45 U.S.C. § 156 ....................................... i, 2, 4, 5, 6, 17

JUDICIAL RULES

Fed. R. Civ. P. 12(b)(1) .............................................. 14

Fed. R. Civ. P. 12(b)(6) .................................... 4, 14, 24

Fed. R. Civ. P. 8 ........................................................ 23

Fed. R. Civ. P. 9(b) .................................................... 23

Sup. Ct. R. 29.6 ........................................................... ii

1

OPINIONS BELOW

The Seventh Circuit’s opinion affirming the district

court’s dismissal was issued on October 8, 2025, in

Wickstrom v. Air Line Pilots Ass’n, Int’l, No. 25-1036 (7th

Cir.), and is reproduced in the Appendix at App.1a–

14a. The Seventh Circuit’s order denying rehearing en

banc is reproduced in the Appendix at App.54a.

The district court’s order granting the motion to

dismiss is available at Wickstrom v. Air Line Pilots

Ass’n, Int’l, 2023 WL 5720989 (N.D. Ill. Sept. 5, 2023),

and is reproduced in the Appendix at App.37a-53a.

The district court’s order denying leave to amend is

reproduced in the Appendix at App.16a-30a. The district

court’s judgment is reproduced in the Appendix at

App.31a.

JURISDICTION

The Seventh Circuit entered judgment on October

8, 2025. App.1a. The court denied Petitioners’ timely

petition for rehearing en banc on November 14, 2025.

App.54a. This Court has jurisdiction under 28 U.S.C.

§ 1254(1). This petition is timely filed within ninety

days of the denial of rehearing.

2

STATUTORY PROVISIONS INVOLVED

45 U.S.C. § 152, First provides:

It shall be the duty of all carriers, their officers,

agents, and employees to exert every reasonable

effort to make and maintain agreements concerning rates of pay, rules, and working conditions,

and to settle all disputes, whether arising out of

the application of such agreements or otherwise,

in order to avoid any interruption to commerce or

to the operation of any carrier growing out of any

dispute between the carrier and the employees

thereof.

45 U.S.C. § 152, Seventh provides:

No carrier, its officers, or agents shall change the

rates of pay, rules, or working conditions of its

employees, as a class, as embodied in agreements

except in the manner prescribed in such agreements

or in section 156 of this title.

45 U.S.C. § 156 provides in relevant part:

Carriers and representatives of the employees

shall give at least thirty days’ written notice of an

intended change in agreements affecting rates of

pay, rules, or working conditions . . . .

In every case where such notice of intended

change has been given, or conferences are being

held with reference thereto, or the services of the

Mediation Board have been requested by either

party, or said Board has proffered its services,

rates of pay, rules, or working conditions shall not

3

be altered by the carrier until the controversy has

been finally acted upon, as required by section

155 of this title, by the Mediation Board, unless a

period of ten days has elapsed after termination

of conferences without request for or proffer of the

services of the Mediation Board.

These provisions impose mandatory bargaining and

status-quo obligations designed to prevent unilateral

changes to working conditions pending completion of the

Railway Labor Act’s dispute-resolution procedures.

INTRODUCTION

This case presents fundamental questions about

the duty of fair representation owed by labor unions to

their members under the Railway Labor Act (“RLA”),

45 U.S.C. § 151 et seq. Specifically, it asks whether a

union’s statutory role as exclusive bargaining representative carries a corresponding obligation to enforce

the federal law that grants it that authority, or whether

union “discretion” permits a union to decline enforcement of mandatory statutory protections governing

changes to employees’ working conditions.

Petitioners are seven former United Airlines pilots

who were terminated following United’s implementation

of a new employment policy. They brought suit against

their union, the Air Line Pilots Association, International (“ALPA”), alleging that ALPA breached its duty

of fair representation by refusing to enforce the RLA’s

mandatory status quo requirements, which prohibit

carriers from unilaterally altering working conditions

4

without following prescribed bargaining procedures.

See 45 U.S.C. §§ 152, Seventh; 156.

The district court granted ALPA’s motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6),

and the Seventh Circuit affirmed, holding that ALPA’s

conduct fell within the “wide range of reasonableness”

afforded to unions under Air Line Pilots Ass’n, Int’l v.

O’Neill, 499 U.S. 65 (1991). In so holding, the courts

below conflated two distinct concepts: union discretion

in bargaining strategy and grievance handling, which

is entitled to deference, and union authority to decline

enforcement of mandatory federal statutory requirements, which this Court has never held to be discretionary.

The RLA imposes binding obligations on both

carriers and unions. Section 152, Seventh prohibits

carriers from changing rates of pay, rules, or working

conditions “except in the manner prescribed” by the

statute. Section 156 provides that during bargaining,

“rates of pay, rules, or working conditions shall not be

altered” until the Act’s dispute-resolution procedures

are exhausted. These provisions are not aspirational;

they are federal mandates designed to simultaneously

preserve labor stability and protect worker rights by

preventing unilateral action while statutory processes

unfold.

The decision below effectively authorizes a regime

in which employees may be disciplined or discharged

before statutory bargaining obligations are enforced—

a “terminate first, arbitrate later” approach—while

insulating the exclusive bargaining representative from

judicial review so long as the union characterizes its

inaction as a discretionary choice.

5

That result is incompatible with the structure of

the Railway Labor Act, this Court’s duty-of-fair-representation jurisprudence, and the foundational premise

that exclusive representation carries corresponding

responsibilities. This Court’s review is necessary to

clarify that union discretion under O’Neill and Vaca v.

Sipes, 386 U.S. 171 (1967), does not extend to disregarding federal statutory mandates, and to ensure that

employees are not left without recourse when their

exclusive representative declines to enforce the law

governing their employment.

STATEMENT OF THE CASE

A.

The Railway Labor Act Framework

The Railway Labor Act establishes a comprehensive framework governing labor relations in the railroad

and airline industries. 45 U.S.C. § 151 et seq. Congress

enacted the RLA “to promote stability in labor-management relations by providing a comprehensive framework

for resolving labor disputes.” Hawaiian Airlines, Inc.

v. Norris, 512 U.S. 246, 252 (1994). The Act’s fundamental purposes include avoiding “any interruption to

commerce” and promoting “the prompt and orderly

settlement of all disputes.” 45 U.S.C. § 151a.

Central to this framework is the status quo requirement. Section 152, Seventh provides that “[n]o carrier,

its officers, or agents shall change the rates of pay,

rules, or working conditions of its employees, as a class,

as embodied in agreements except in the manner

prescribed in such agreements or in section 156 of this

title.” 45 U.S.C. § 152, Seventh.

6

Section 156 establishes the procedures that must be

followed before any such change may occur. It requires

at least thirty days’ written notice of intended changes

and mandates that “rates of pay, rules, or working

conditions shall not be altered by the carrier” until the

statutory procedures, including mediation if necessary, have been exhausted. 45 U.S.C. § 156. These

procedures are designed to preserve existing working

conditions while bargaining and dispute-resolution

mechanisms are underway—before any employee faces

discipline or discharge.

These provisions are not permissive; they impose

mandatory obligations. The status quo requirement is

“designed to prevent either party from altering the

status quo during the pendency of bargaining in order

to exert economic pressure and frustrate negotiations.”

Detroit & Toledo Shore Line R.R. v. United Transp.

Union, 396 U.S. 142, 150 (1969).

The duty of fair representation arises from the

union’s role as exclusive bargaining representative

under § 152, Fourth. As this Court has explained, this

duty is “implied from the union’s exclusive authority

under the RLA to represent all members of a designated

bargaining unit” and requires the union to represent

“all members of the bargaining unit ‘without hostile

discrimination, fairly, impartially, and in good faith.’”

O’Neill, 499 U.S. at 74 (citations omitted). That exclusive authority exists within—and is constrained by—the

statutory framework governing collective bargaining

and dispute resolution under the RLA.

7

B.

The United Pilot Agreement and ALPA’s

Representation

ALPA is the exclusive bargaining representative

for pilots employed by United Airlines pursuant to the

United Pilot Agreement (“UPA”), the collective bargaining agreement between ALPA and United. App.2a. The

UPA grants ALPA exclusive representation “regarding

hours of labor, wages and other employment conditions

covering the pilots and flight instructors in the employ

of the Company in accordance with the provisions of

Title II (§ 152) of the Railway Labor Act, as amended.”

UPA § 1-A.

The UPA establishes procedures governing disputes

between pilots and the Company. Nondisciplinary

pilot grievances permit pilots to challenge Company

conduct, but such grievances may be appealed to the

System Board of Adjustment only if ALPA elects to

advance them. App.2a. When ALPA declines to advance

a pilot’s grievance, the pilot may seek review before

the Grievance Review Panel (“GRP”), an internal union

body that may nominally direct ALPA to advance the

grievance; however, the MEC Chairman and MEC

Grievance Chairman retain joint authority to determine that a grievance shall not be submitted to or

shall be withdrawn from the System Board. Id. The

grievance process thus does not permit individual

pilots to pursue arbitration independently of ALPA.

The UPA also contains provisions governing

changes to Company personnel policies. Section 21-K

provides that “[c]ompany personnel policy which affects

pilots shall not be changed without giving advance notice

to the Association and affording them the opportunity

to comment,” and further states that “no change shall

be made to any Company personnel policy which is

8

contrary to any of the terms of this Agreement.” UPA

§ 21-K.

Section 21-U further provides that “[n]othing in

this Agreement shall be construed as a waiver of any

Pilot’s right(s) under any applicable laws and regulations.” UPA § 21-U.

In addition to the UPA, ALPA is governed by its

Constitution and By-Laws. Those governing documents

provide that any agreement “that, in the opinion of the

MEC, substantially affects the pay, working conditions,

retirement, or career security of member pilots will be

subject to membership ratification.”

Further, ALPA’s Anti-Discrimination/Anti-Harassment policy states.

ALPA members shall not engage in discrimination or harassment, including but not limited

to . . . medical status . . . . ALPA members shall

adhere to this policy and the Code of Ethics at

all times while performing duties or otherwise

acting in a professional capacity as a pilot,

ALPA member or volunteer.

(Emphasis added).

C.

United’s Implementation of a New Employment Policy and ALPA’s Response

In May 2020, ALPA warned its United pilots that

the airline might attempt to unilaterally alter the

United Pilot Agreement in response to the COVID-19

pandemic and called for a unified response to prevent

such changes. App.3a.

In January 2021, after United indicated it might

implement a vaccination requirement, ALPA took the

9

position that the UPA permitted such action, departing

from its earlier warnings. At the same time, ALPA

pledged to Congress union support for aggressive

vaccine campaigns. Id.

In May 2021, United and ALPA entered into

Letter of Agreement 21-02 (“LOA 21-02”). LOA 21-02

prohibited a mandate during its term however included

a provision allowing United to unilaterally revoke this

agreement. LOA 21-02 provided large financial incentives for voluntary vaccination and reporting, created

new work rules that threatened significant financial loss

to pilots electing to remain unvaccinated by restricting

certain flying assignments to vaccinated pilots and

removing unvaccinated pilots from trips without pay.

App.3a. The agreement acknowledged that adverse

vaccine reactions could affect a pilot’s Federal Aviation

Administration-required medical certification, recognizing the potential career implications of vaccination

for pilots. Id. ALPA’s public position remained that the

vaccine policy to be implemented was permitted by the

UPA and that any pilot remaining unvaccinated when

the LOA was revoked would be subject to termination

or forced unpaid leave.

Membership was not notified that LOA 21-02

bargaining was commencing and the final product

was not submitted for membership ratification, notwithstanding ALPA’s constitutional requirement that

agreements substantially affecting pilots’ career security

be subject to a membership vote.

On August 5, 2021, in anticipation of United’s

announcement of a vaccination requirement, ALPA’s

legal department instructed union representatives not

to communicate with pilots regarding the forthcoming

policy, citing anticipated litigation. App.3a.

10

On August 6, 2021, United announced a vaccination

requirement for pilots, effective September 27, 2021.

App.3a. On August 23, 2021, United notified ALPA

that LOA 21-02 would be revoked as of September 27,

2021. Id.

On August 24, 2021, several United pilots, including Petitioners, filed nondisciplinary grievances asserting that United’s implementation of the vaccination

requirement constituted a violation of the RLA’s status

quo requirements because the UPA had become amendable and bargaining was ongoing. App.3a. The grievances identified multiple alleged conflicts between the

new policy and existing UPA provisions, including provisions governing furlough protections, pay guarantees,

and other working conditions.

ALPA did not assist in the preparation or advancement of these grievances and refused to file an MEC

grievance challenging the alleged status quo violation,

notwithstanding its exclusive authority under the UPA

to pursue certain contractual claims. App.4a.

The September, 2021, issue of ALPA magazine

stated, “While U.S. law doesn’t prohibit companies

from taking this type of action, the Association has

been very clear that any vaccination requirements are an

issue that must be bargained for and ultimately agreed

to by each ALPA pilot group.” ALPA, as an organization, understood the RLA bargaining requirements.

The deadlines for vaccination or obtaining an

accommodation preceded the revocation of LOA 21-02

in early September. ALPA ignored this LOA violation

and further served as the enforcement arm for the

company.

11

On September 10, 2021—approximately two weeks

before the policy took effect—the Chairman of ALPA’s

Master Executive Council communicated to United’s

Senior Vice President for Flight Operations that ALPA

would not support the status quo grievances the pilots

had filed. This communication was not disclosed to the

membership. Id.

On September 27, 2021, LOA 21-02 was revoked

and pilots who had not voluntarily vaccinated during

the period when LOA 21-02 was in effect were immediately subjected to disciplinary proceedings. Terminations

commenced on November 1, 2021. App.4a. More than

350 United pilots were either terminated or placed on

indefinite unpaid leave.

On September 28, 2021—the day after the vaccination requirement took effect and the violative act was

allowed to occur but prior to contacting affected pilots

—ALPA filed an “instant grievance” asserting that

unvaccinated status constituted a pilot qualification

issue rather than a status quo violation requiring

bargaining. App.4a. The grievance did not challenge

United’s authority to impose the policy, but addressed

only the policy consequences of noncompliance citing

what the System Board determined to be an irrelevant

scheduling provision that could not be applied to vaccination. The act of filing the grievance claiming that

the policy consequences violated the UPA is in direct

conflict ALPA’s claim that the UPA permitted the

vaccine policy under Section 21-K.

On February 15, 2022—the System Board of Adjustment denied the grievance. The Board concluded that

United’s vaccination requirement was not a pilot qualification but rather “a new company-wide requirement”

12

for employment. ALPA failed to act based on that Board

finding. App.4a.

The facts presented clearly indicate a pattern of

intentional union conduct contrary to federal law, the

UPA, and ALPA governing documents that was intended

to coerce then eventually weed out any pilot failing to

conform with ALPA’s vaccine agenda, a distinction

based solely on medical status.

D. The Grievance Proceedings

United’s Chief Pilot denied the pilots’ nondisciplinary grievances asserting a violation of the RLA’s status

quo requirements, and ALPA declined to support their

appeals. App.4a. After United denied the appeals, the

pilots requested that the Grievance Review Panel

(“GRP”) advance the grievances to the System Board

of Adjustment.

The GRP conducted a two-day hearing. However,

under ALPA’s Master Executive Council Policy Manual,

the GRP’s role was not to adjudicate the merits of the

grievance. Rather, the GRP was charged with determining “whether the grievance seeks relief from the

System Board, which, if granted, would establish a

result that would be contrary to the agreements, commitments, understandings or policies of this organization

as the representative of the United pilots.” App.4a.

The standard thus asked not whether the pilots’ rights

had been violated, but whether vindicating those rights

might conflict with ALPA’s own institutional interests.

The GRP unanimously denied the pilots’ request

to advance the grievance, concluding that it was

“baseless” and reasoning that Section 21-K of the UPA

13

permitted United to implement the vaccination requirement. App.4a. In its written decision, the GRP stated:

It is the Panel’s unanimous decision that this

grievance could establish “a result that would

be contrary to the agreements, commitments,

understandings or policies of this organization

as the representative of the United Pilots,” and

should not be advanced to the System Board.

The two-day hearing produced a two-page conclusory report. The GRP’s decision did not address how

Section 21-K—which provides that personnel policies

may not be changed if “contrary to any of the terms of

this Agreement”—could be reconciled with other UPA

provisions identified in the grievance. Most importantly

the GRP dismissed, without explanation, Section 1-A

which requires compliance with the RLA and the need

to maintain status quo.

In a larger sense, if ALPA at this point elected to

sponsor a Section 1-A grievance, ALPA would be placed

in the position of admitting their refusal to support and

resolve the grievance before the policy took effect was

a direct violation of the UPA and federal law to which

over 350 member pilots suffered significant adverse

employment action and substantial financial loss, among

other damages. The outcome of the GRP hearings was

determined long before the two-day event occurred,

particularly given the commitment the MEC Chairman

made to United on September 10, 2021, ensuring this

grievance would not be supported by the MEC. App.4a.

Separately, ALPA filed termination grievances

on Petitioners’ behalf challenging their discharges.

App.4a. Those grievances remain pending at Petitioners’

request. Id. The termination grievances framed the

14

sole issue as whether United had “just cause” to terminate the pilots but did not identify any specific UPA

provision governing just cause for termination. The

lack of a UPA provision regarding just cause for termination places into question the Boards jurisdiction

from the outset and ALPA’s intent in filing an improper

grievance.

The grievances sought a remedy returning pilots

to “a flight status consistent with that offered to other

unvaccinated Pilots who are subject to the reasonable

accommodation process.” App.4a. This remedy exceeds

the System Board jurisdiction because, if ordered, it

would be creating a new UPA provision which is strictly

prohibited by the UPA.

The Seventh Circuit found, without meritorious

review, that these grievances were not perfunctory citing

only the activity of the events, avoiding the substance

of the grievances themselves.

E.

Procedural History

In September 2022, Petitioners filed suit against

ALPA alleging breach of the duty of fair representation. After venue was transferred to the Northern District of Illinois, ALPA moved to dismiss under Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6).

The district court denied ALPA’s motion to dismiss

for lack of ripeness under Rule 12(b)(1), concluding that

Petitioners’ alleged injuries—including termination—

had already occurred and that the dispute was concrete.

App.5a–7a.

The district court granted dismissal under Rule

12(b)(6), holding that Petitioners failed to state a

plausible claim for breach of the duty of fair represent-

15

ation. The court reasoned that Petitioners had not

adequately addressed ALPA’s contention that Section

21-K of the UPA permitted United’s implementation

of the vaccination requirement. App.10a–11a.

Petitioners moved for leave to file an amended

complaint expressly alleging that ALPA’s conduct

violated both the UPA and the RLA, including detailed

allegations concerning Sections 1-A, 21-K, and 21-U of

the UPA. The district court denied leave to amend on the

grounds that amendment would be futile. App.32a–44a.

The Seventh Circuit affirmed. App.1a–14a. The

court held that ALPA’s decision not to seek injunctive

relief was not arbitrary because its conclusion that

such relief would present a “minor dispute” under the

RLA was “not irrational.” App.9a–10a. The court further concluded that Petitioners had waived certain

arguments concerning Section 21-K by raising them

in a reply brief. App.10a–11a.

Addressing the discrimination and bad faith prongs

of the duty-of-fair-representation standard, the court

held that Petitioners failed to allege facts demonstrating

“subjective intent to discriminate” or an “improper

motive.” App.11a–14a. Although the court acknowledged

that LOA 21-02 established different work rules based

on vaccination status, it concluded that the complaint

did not support an inference that ALPA acted with

discriminatory intent. App.12a. The court rejected

Petitioners’ allegations of bad faith, characterizing

assertions of collusion as conclusory. App.13a.

Petitioners timely sought rehearing en banc. The

court denied rehearing on November 12, 2025. App.15a.

16

REASONS FOR GRANTING THE PETITION

I.

THE SEVENTH CIRCUIT’S DECISION CONFLICTS

WITH THIS COURT’S PRECEDENT ON THE SCOPE OF

UNION DISCRETION UNDER THE DUTY OF FAIR

REPRESENTATION

The Seventh Circuit’s decision rests on a fundamental misapprehension of the scope of union discretion

under the duty of fair representation. While this Court

has afforded unions a “wide range of reasonableness”

in matters of bargaining strategy and grievance

handling, Air Line Pilots Ass’n, Int’l v. O’Neill, 499

U.S. 65, 78 (1991), that discretion has never extended

to permitting a union to decline enforcement of

mandatory federal statutory requirements that govern

the collective bargaining process itself.

A. A Union’s Statutory Authority Under the

RLA Carries a Corresponding Obligation

to Enforce Statutory Requirements

The duty of fair representation arises directly

from the union’s statutory role as exclusive bargaining

representative. As this Court explained in Steele v.

Louisville & Nashville Railroad, the union’s authority

to act on behalf of all employees “involves the assumption

toward them of a duty to exercise the power in their

interest and behalf.” 323 U.S. 192, 202 (1944). That

duty is “akin to the duty owed by other fiduciaries to

their beneficiaries.” O’Neill, 499 U.S. at 74.

The Railway Labor Act’s structure depends on

the exclusive representative serving as the principal

mechanism for enforcing the Act’s procedural safe-

17

guards. Section 152, First imposes an affirmative duty

on carriers and employees to “exert every reasonable

effort” to make and maintain agreements through

the Act’s prescribed processes. Section 152, Seventh

prohibits carriers from altering rates of pay, rules, or

working conditions “except in the manner prescribed”

by the statute. Section 156 mandates maintenance of

the status quo while bargaining and dispute-resolution

procedures are ongoing.

Those provisions would be rendered ineffectual if

the exclusive representative—the only entity empowered

to invoke and enforce them on behalf of employees—

could elect not to do so based on asserted “discretion.”

This Court has repeatedly emphasized that while

Congress left the substance of collective bargaining to

the parties, it “generally regulated only ‘the process of

collective bargaining.’” O’Neill, 499 U.S. at 77 (quoting

H.K. Porter Co. v. NLRB, 397 U.S. 99, 102 (1970)).

Unions may exercise broad discretion within that

process, but they may not disregard it. Or worse, unions

use their discretion to circumvent the RLA bargaining

requirements if the process could create a roadblock

to union leadership’s personal agenda.

The question presented here is narrow: whether

ALPA breached its duty of fair representation by

failing to invoke and enforce the mandatory procedural

requirements Congress established as the foundation

of the RLA’s scheme. This is not a case asking the Court

to second-guess the substance of a negotiated agreement. It is a case about whether a union may altogether

bypass the statutory process through which any such

agreement must be reached. That failure is categorically

different from the discretionary decisions this Court

has held warrant deference.

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In O’Neill, the Court applied the “wide range of

reasonableness” standard to a union’s decision to settle

litigation concerning seniority integration—an area in

which the governing statute imposed no mandatory

procedural command beyond good-faith representation.

499 U.S. at 81–84. The Court’s deference in O’Neill presupposed compliance with the statutory framework

and addressed only how the union exercised judgment

within it.

Here, by contrast, the legal landscape included

express statutory provisions requiring maintenance of

the status quo and adherence to defined bargaining

procedures. Where Congress has imposed such mandates, union discretion does not include the authority

to decline enforcement.

B. The Decision Below Improperly Extends

Union Discretion to Encompass NonEnforcement of Federal Law

The Seventh Circuit held that ALPA acted within

its discretion in declining to challenge United’s alleged

violation of the RLA’s status quo requirements. App.9a–

11a. The court reasoned that ALPA’s conclusion that

the dispute would be classified as “minor” under the

RLA was “not irrational,” and therefore that ALPA

was not required to seek judicial relief. App.10a.

That analysis improperly conflates two distinct

inquiries: the classification of a dispute for purposes

of determining the appropriate forum for resolution,

and the union’s obligation, as exclusive representative,

to pursue available remedies for an alleged violation

of federal statutory requirements. Even where a dispute

is properly classified as “minor” and subject to arbitration

rather than injunctive relief, the union remains respon-

19

sible for invoking and pursuing the statutory and contractual processes through which that dispute may be

resolved. The major/minor distinction determines where

a dispute is heard; it does not determine whether the

exclusive representative must act at all.

The decision below effectively treats a union’s discretionary assessment of forum as a basis for declining

enforcement altogether. Nothing in the RLA or this

Court’s precedent authorizes such a result. To the contrary, the Act presumes that disputes—whether major

or minor—will be addressed through the procedures

Congress prescribed, with the exclusive representative acting on behalf of the bargaining unit.

The Seventh Circuit’s acceptance of ALPA’s reliance on Section 21-K of the UPA reflects the same

analytical error. Section 21-K permits changes to personnel policies only so long as those changes are not

“contrary to any of the terms of this Agreement.”

ALPA argued that nothing in the UPA specifically

prohibited the vaccine mandate, and that Section 21-K

therefore permitted it. But contractual silence does not

authorize unilateral changes to matters covered by

the RLA. As the Seventh Circuit itself has recognized,

“such a rule cannot be squared with the RLA” because

“any change to pay, rules, or conditions must be authorized by contract or as the result of bargaining.”

Brotherhood of Locomotive Engineers & Trainmen v.

Union Pacific Railroad, 879 F.3d 754, 757 (7th Cir.

2018). Whether the vaccine mandate was “contrary to”

the UPA presents a question of contract interpretation

committed to the arbitral process — a merits inquiry

far exceeding what is permitted at the pleading stage.

By allowing the union to preempt that process through

its own asserted interpretation of Section 21-K, the

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decision below permits the exclusive representative to

insulate contested policy changes from the very disputeresolution mechanisms the RLA requires.

Finally, the court’s forfeiture and waiver rulings

compound the structural problem. Under the rule

adopted below, a union’s decision not to invoke mandatory statutory procedures may foreclose judicial

review altogether, so long as individual employees fail

to anticipate and rebut the union’s litigation posture

at the pleading stage—before discovery and without

access to the union’s internal deliberations. That allocation of burdens is incompatible with the structure of

the RLA and this Court’s duty-of-fair-representation

jurisprudence, which imposes fiduciary obligations on

the exclusive representative, not on the employees it

represents.

C. This Case Presents an Issue of National

Importance

The Seventh Circuit’s decision has significant

implications for labor relations throughout the airline

and railroad industries governed by the Railway Labor

Act. If unions may invoke “discretion” to decline

enforcement of the Act’s mandatory status quo requirements, employees lose the principal statutory safeguard

Congress enacted to prevent unilateral changes to

working conditions during bargaining.

The status quo requirement lies at the core of the

RLA’s framework. As this Court has explained, it is

designed to prevent either party “from altering the

status quo during the pendency of bargaining in order

to exert economic pressure and frustrate negotiations.”

Detroit & Toledo Shore Line R.R. v. United Transp.

Union, 396 U.S. 142, 150 (1969). If an exclusive repre-

21

sentative may elect not to invoke that protection, the

statutory scheme no longer functions as Congress

intended.

The rule adopted below creates a structural accountability gap with nationwide consequences. Under the

RLA, individual employees generally lack authority to

enforce status quo obligations independently; enforcement depends on action by the exclusive bargaining

representative. The duty of fair representation is the

sole judicial mechanism for ensuring that this exclusive

authority is exercised in accordance with statutory

requirements. By holding that union discretion encompasses the decision not to enforce federal law, the

Seventh Circuit’s decision leaves employees without any

effective remedy when their exclusive representative

declines to act.

This Court’s review is warranted to clarify that

union discretion under O’Neill and Vaca v. Sipes, 386

U.S. 171 (1967), does not extend to abandoning enforcement of mandatory federal statutory protections, and

to ensure uniform application of the Railway Labor

Act across the industries it governs.

II. THE SEVENTH CIRCUIT’S APPLICATION OF THE

O’NEILL STANDARD IMPROPERLY HEIGHTENS

PLEADING REQUIREMENTS FOR DFR CLAIMS

The Seventh Circuit’s decision imposes a pleading

standard for duty-of-fair-representation claims that

conflicts with this Court’s precedent and the Federal

Rules of Civil Procedure. By requiring plaintiffs to plead

evidence of subjective bad faith and discriminatory

intent at the motion-to-dismiss stage, the decision

below effectively forecloses DFR claims before discovery

22

can occur and transforms the “wide range of reasonableness” standard into a pleading-stage immunity.

A. The Decision Below Requires Proof of

Subjective Intent at the Pleading Stage

Addressing the discrimination prong of the dutyof-fair-representation standard, the Seventh Circuit

held that Petitioners failed to plausibly allege that

ALPA acted with “subjective intent to discriminate”

against unvaccinated pilots. App.12a. Although the court

acknowledged that the challenged conduct resulted in

different work rules and consequences based on vaccination status, it concluded that allegations of disparate

treatment were insufficient absent specific allegations

of discriminatory intent. App.11a–12a. The decisions

ALPA made throughout the process were calculated and

intentional with a consistent theme of excluding membership from any opportunity to meaningfully protect

their personal decision to remain unvaccinated consistent with the protections provided by the UPA and federal

law.

The court applied a similar approach to Petitioners’

bad-faith allegations, requiring “subsidiary facts” demonstrating improper motive and dismissing allegations of

collusion as conclusory. App.12a–13a. In both contexts,

the court demanded factual detail regarding internal

decision-making and motivation that is ordinarily

unavailable to plaintiffs prior to discovery and uniquely

within the control of the union.

Nothing in this Court’s duty-of-fair-representation jurisprudence requires plaintiffs to plead evidence

of subjective intent at the threshold. To the contrary,

allegations of arbitrary, discriminatory, or bad-faith

conduct have traditionally been evaluated based on

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the plausibility of the alleged course of conduct, with

discovery serving as the mechanism for testing intent

and motivation.

B. The Seventh Circuit’s Approach Conflicts

With This Court’s Pleading Precedent

The pleading requirements imposed by the decision below are inconsistent with this Court’s decisions

in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Those

cases require a complaint to allege sufficient factual

content to permit a reasonable inference of liability—

not to prove the plaintiff’s case at the outset.

As this Court has emphasized, plausibility “does

not impose a probability requirement,” and a complaint

may proceed even where actual proof appears uncertain

or unlikely. Twombly, 550 U.S. at 556. Rule 8 permits

intent to be pleaded generally, with discovery providing the means to test subjective motivation and internal

deliberations. See Fed. R. Civ. P. 9(b); Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 511 (2002).

This case is complex and analysis of ALPA’s actions

for arbitrariness or bad faith conduct require a contextual understanding of multiple areas of the UPA and

past practice, far exceeding what is permitted in the

pleading stage. Here, Petitioners alleged concrete

actions taken by the exclusive bargaining representative that, viewed collectively, plausibly suggested

arbitrary or bad-faith conduct. Rather than accepting

those allegations and drawing reasonable inferences

in Petitioners’ favor, the Seventh Circuit weighed

competing explanations, credited the union’s asserted

conclusory justifications, and rejected Petitioners’ infer-

24

ences as implausible. That analysis resembles summary judgment, not a Rule 12(b)(6) inquiry.

C. The Decision Below Exacerbates Confusion Over the Proper Pleading Standard

for DFR Claims

The Seventh Circuit’s approach highlights a

broader lack of uniformity among the courts of appeals

regarding the pleading standard applicable to duty-offair-representation claims. Some circuits permit such

claims to proceed to discovery based on plausible allegations of arbitrary or bad-faith conduct, while others

impose heightened requirements that effectively demand

evidence of intent at the pleading stage.

This divergence creates uncertainty for both

unions and employees operating under federal labor

statutes. Absent clarification from this Court, similarly

situated workers may be denied access to discovery—

and to any judicial forum—based solely on the circuit

in which they work.

This Court’s review is warranted to clarify that

the duty-of-fair-representation standard does not

override ordinary pleading principles, and that plausible

allegations of arbitrary, discriminatory, or bad-faith

conduct are sufficient to permit discovery and adjudication on the merits.

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CONCLUSION

For the foregoing reasons, Petitioners respectfully

request that this Court grant the petition for a writ of

certiorari.

This case presents fundamental questions concerning the duty of fair representation under the

Railway Labor Act: whether a union’s discretion as

exclusive bargaining representative extends to declining

enforcement of mandatory federal statutory requirements, and whether duty-of-fair-representation claims

may be dismissed at the pleading stage based on an

asserted failure to provide substantial evidence or

prove subjective intent before discovery.

The Railway Labor Act’s framework depends on

the exclusive representative serving as the principal

mechanism for enforcing statutory bargaining and

status quo obligations. If unions may decline to invoke

those protections based on assertions of discretion,

employees are left without effective means of enforcing

the statutory scheme Congress enacted. The decision

below expands union discretion beyond the limits this

Court has recognized and undermines the statutory

framework governing labor relations in the airline

and railroad industries.

This Court’s review is warranted to restore the

proper balance between union discretion and statutory

obligation, and to ensure uniform application of the

duty of fair representation across the federal courts.

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Respectfully submitted,

John M. Pierce

Counsel of Record

JOHN PIERCE LAW P.C.

21550 Oxnard Street, 3rd Floor

Woodland Hills, CA 91367

(321) 961-1848

jpierce@johnpiercelaw.com

Counsel for Petitioners

February 12, 2026