Petition — Deboles v. Trans World Airlines, Inc.
Supreme Court brief1977
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| JUN 27 1977
| MICHAEL RODAK, JR., CLERK
Supreme Court of the United States
October Term, 1976.
No. 76-1869
CHARLES DEBOLES,
Petitioner
0.
TRANS WORLD AIRLINES, INC.,
and
INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO; DISTRICT LODGE
142, IAMAW, AFL-CIO; LOCAL LODGE 1776, IAMAW,
AFL-CIO
Respondents
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Davi C. TooMEyY
Duane, Morris & HECKSCHER
1600 Land Title Building
100 So. Broad Street
Philadelphia, PA 19110
Counsel for Petitioner
International Printing Co., 711 So, 50th St., Phila., Pa, 19143 — Tel. (215) 727-8711
INDEX.
Page
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PPLE PUEO POE VPC TET EE PT PETE CET CLTTT 3
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REASONS FOR GRANTING THE WRIT ............-0-00000005: 10
1. The Case Presents Important Questions of Federal
Law Concerning the Duties Owed by Unions to
EE so ccvundontedendkuabidbne ds kaNeees 10
2. The Decision Confli *- With the Second Circuit's De-
cision in Jones v. Trans World Airlines, Inc. ....... 14
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APPENDIX:
I 660 00-09 056664060 666060000s0805 Al
es cee e eh Ne eKN Sade nes A24
REET POE PTET CT CORT TT CE A25
Court of Appeals Judgment .....................0005- A55
District Court Final Order and Judgment ............. A57
TABLE OF CITATIONS.
Cases: Page
Conley v. Gibson, 355 U. S. 41 (1957) ..........0ccceeeeee 10
Deboles v. Trans World Airlines, Inc., 350 F. Supp. 1274
i i i ME Cccteidrencddsbavaceuacveyhesdawes 5
Ford Motor Co. v. Huffman, 345 U. S. 330 (1953) .......... 10
Jones v. Trans World Airlines, Inc., 495 F. 2d 790 (2d Cir.
EE deasusintidcaten Cun eaen ner dsbeedudeds cueae 13, 14, 15
NLRB vy. Allis-Chalmers Mfg. Co., 388 U. S. 175 (1967) .... 10
Pan American World Airways v. United Brotherhood of Car-
penters, 324 F. 2d 217 (9th Cir. 1963) cert. den’d 376
ee ED “sadbdcnbudatuadduseaetctéscceuceccel 5, 6, 12
Steele v. Louisville and Nashville R. R., 323 U. S. 192 (1944)
10, 12, 13
Vaca v. Sipes, 306 U. S. B71 (IGBZ) ... ccc cc ccccccccces 10
Miscellaneous:
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United States Code, Title 29 (National Labor Relations Act),
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United States Code, Title 45 (Railway Labor Act), § 152
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es a EE sds wack ae Ugewadeueemunwese conde 2
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IN THE
Supreme Court of the United States
OcToBEeR TERM, 1°76
No.
CHARLES DEBOLES,
Petitioner
Dv.
TRANS WORLD AIRLINES, INC.,
and
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO; DIS-
TRICT LODGE 142, IAMAW, AFL-CIO; LOCAL
LODGE 1776, IAMAW, AFL-CIO,
Respondents
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
The petitioner Charles Deboles respectfully prays that
a Writ of Certiorari issue to review the judgment and opin-
ion of the United States Court of Appeals for the Third
Circuit entered in this proceeding on March 31, 1977.
THE OPINIONS BELOW.
Neither the opinion of the Court of Appeals nor the
opinion of the District Court for the Eastern District of
Pennsy!vania is as yet reported in the official reports. The
decisions are unofficially reported at 81 CCH Lab. Cases
{ 13,158 and 78 CCH Lab. Cases { 11,397, respectively.
Copies of both Opinions are attached to this Petition in
the Appendix hereto.
2 Petition for a Writ of Certiorari
JURISDICTION.
The judgment of the Court of Appeals was entered on
March 31, 1977, and this Petition is filed within 90 days of
that date. This Court’s jurisdiction is invoked under 28
U.S.C. § 1254(1).
QUESTIONS PRESENTED.
1. Whether a Union satisfies its duty of fair repre-
sentation when it agrees with the employer to represent
a group of employees not yet hired, and then instigates an
agreement with the employer which denies to the mem-
bers of that group the seniority rights which all of the
Union's other members enjoy.
2. Whether a Union satisfies its duty of fair repre-
sentation when it hides from a group of its members the
facts concerning the denial to them of equal seniority
rights, by admitted lies and misrepresentations.
3. Whether a Union satisfies its duty of fair repre-
sentation when it rejects the employer’s proposal to pro-
vide equal seniority rights to a minority group of em-
ployees for the sole reason that the majority of the Union’s
members opposes the proposal.
4. Whether a Union may insulate itself from liability
for arbitrarily denying a minority group of employees
equal seniority rights, by submitting the matter to majority
vote of all Union members, thereby using the contract
ratification process to defeat a minority group's claim for
equal treatment.
5. Whether an Employer may escape liability to a
minority group of its employees when it knowingly enters
into agreements with the Union, which discriminate
against the minority group.
Re Tne an Dt ae el taal ok Al ele i ie ll SOOO HT PNET ET FKL er
pre
Petition for a Writ of Certiorari 3
STATUTES INVOLVED.
United States Code, Title 45 (Railway Labor Act):
f 152 (Fourth)
“Employees shall have the right to organize and
bargain collectively through representatives of
their own choosing. The majority of any craft
or class of employees shall have the right to de-
termine who shall be the representative of the
craft or class for the purposes of this chapter. No
carrier, its officers, or agents shall deny or in any
way question the right of its employees to join,
organize, or assist in organizing the labor organ-
ization of their choice, and it shall be unlawful
for any carrier to interfere in any way with the
organization of its employees, or to use the funds
of the carrier in maintaining or assisting or con-
tribuiing to any labor organization, labor repre-
sentative, or other agency of collective bargain-
ing, or in performing any work therefor, or to
influence or coerce employees in an effort to
induce them to join or remain or not to join or
remain members of any labor organization, or to
deduct from the wages of employees any dues,
fees, assessments, or other contributions payable
to labor organizations, or to collect or to assist in
the collection of any such dues, fees, assessments,
or other contributions: Provided, That nothing
in this chapter shall be construed to prohibit a
carrier from permitting an employee, individ-
ually, or local representatives of employees from
conferring with management during working
hours without loss of time, or to prohibit a car-
rier from furnishing free transportation to its em-
4 Petition for a Writ of Certiorari
ployees while engaged in the business of a labor
organization.”
By analogy, also involved is Title 29, United States Code
(National Labor Relations Act):
§ 159(a)
“Representatives designated or selected for the
purposes of collective bargaining by the majority
of the employees in a unit appropriate for such
purposes, shall be the exclusive representatives of
all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions
of employment: Provided, That any individual
employee or a group of employees shall have the
right at any time to present grievances to their
employer and to have such grievances adjusted,
without the intervention of the bargaining repre-
sentative, as long as the adjustment is not incon-
sistent with the terms of a collective-bargaining
contract or agreement then in effect: Provided
further, That the bargaining representative has
been given opportunity to be present at such
adjustment.”
wer. 0 ws CO
Petition for a Writ of Ceriiorari 5
STATEMENT OF THE CASE.
This is a class action certified under F. R. C. P.
23(b)(2),* which was brought by those employees of
Trans World Airlines (“TWA”) who were originally hired
at the Kennedy Space Center (“KSC”) in Florida, and
who continue to be employed by the company. The juris-
diction of the District Court was invoked because the
issues involve federal questions concerning the duty of fair
representation under the Railway Labor Act: 45 U. S. C.
§ 152 (Fourth).
For many years, the exclusive collective bargaining
representative of TWA’s ground employees has been the
International Association of Machinists and Aerospace
Workers, (“IAM”), pursuant to a certification issued by
the National Mediation Board (753a, 1433a). The col-
lective bargaining agreements negotiated by TWA and
the IAM have accorded the IAM members “system sen-
iority’, by which is meant nationwide job classification
seniority (128a-30a, 1436a). This affords an employee the
right to displace a junior employee anywhere in the
country in the event he faces lay-off where he is employed,
and gives him the right to transfer to openings in his
classification, wherever they may be (129a-30a, 1439a-
4la). System seniority begins to accrue from the date the
employee begins work in his classification (1436a ).
In 1963, TWA was the successful bidder on the con-
tract with the National Aeronautics and Space Administra-
tion to operate the Kennedy Space Center in Florida. To
avoid problems with other Unions, it offered the IAM the
representation of the employees it expected to employ
there (135a-38a, 278a-79a).? Negotiations on an agree-
1. Deboles v. Trans World Airlines, Inc., 350 F. Supp. 1274
(E. D. Pa., 1972).
2. The legality of this agreement is open to substantial ques-
tion. Pan American World Airways v. United Brotherhood of Car-
' (Cont'd on p. 6)
S
6 Petition for a Writ of Certiorari
ment to supplement the basic collective bargaining agree-
ment followed. In the course of the negotiations, the
Union itself proposed a clause denying system seniority
to new employees hired at KSC, although permitting
transferees from other TWA locations performing exactly
the same jobs to continue to accrue it while there (393a-
94a; 174a-75a; 1483a); the proposal was agreed to by
TWA, which itself had desired to “segregate” the KSC
operation, but had had no fixed proposal to accomplish
that segregation (139a-40a; 169a-70a; 199a; 204a). Later,
when the persons hired at KSC questioned this provision,
they were told by the IAM that NASA had insisted upon
it (488a-89a, 580a-8la).
The local agreement also provided that employees
with “system seniority” could not exercise their system
seniority to displace employees at KSC (1483a). It has
been argued in this litigation that this was a type of “trade-
off” for the denial of system seniority to persons hired at
KSC. However, this argument is challenged by the fact
that, at the time the events involved in the case actually
occurred, the efforts of the KSC employees to obtain sys-
tem seniority for themselves also involved the removal of
the clause which was allegedly protecting them (507a-
08a, 1632a). That clause was but a further effort by the
Union to keep the KSC employees separated from the
employees not hired in Florida for the protection of the
non-Florida employees (167a-68a, 1535a ).
When the national agreement came up for renegoti-
ation in 1966, the KSC employees requested the IAM to
2. (Cont'd.)
penters, 324 F. 2d 217 (9th Circ. 1963), cert. den. 376 U. S. 964
(1964). Since TWA had lost the KSC contract by the time suit
started, this question is material only to the options the KSC em-
ployees might have had, had they been told the truth about the
negotiations, discussed infra. -
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Petition for a Writ of Certiorari 7
propose equality of seniority for all of its TWA employee-
members; the IAM did not even submit the proposal, how-
ever (490a, 1488a-89a). When the KSC employees dis-
covered this, they tried to secure it in local negotiations,
but were told by the IAM that it would have to be dis-
cussed at the national bargaining table, where IAM would
obtain it (493a-50la). In fact, the IAM never pressed the
issue at the national bargaining table (290a); when the
KSC employees asked IAM representatives whv equality
of seniority had not been secured, they were told that
TWA’s adamant opposition had defeated the proposal
(50la).
In 1968, negotiations began again on the national
contract, which eventually was agreed to in January, 1970.
At the insistence of the KSC employees—who now num-
bered 1200—the IAM submitted a proposal for equality of
seniority (1518a-19a, Item No. 2); significantly, TWA’s
own written opening proposals contained an offer to give
system seniority to the KSC employees accruing from the
date they had entered their classifications (150a-51la, 309a-
10a, 369a, 1492a-93a §27). Twice during the negoti-
ations—in June, 1969, and in October, 1969-TWA re-
submitted the proposal (349a-50a, 864a-7la, 910a-12a,
1557a-6la). It was understood at KSC and at other TWA
locations that an agreement had been reached (515a-16a,
709a ).
At that point, opposition began to surface from IAM
members at non-KSC locations who had benefitted from
the restriction on the KSC employees’ seniority, and who
feared that they might be displaced if the KSC employees
were given equal seniority (1109a-10a). The IAM nego-
tiating team believed this opposition might defeat the
entire contract; as a result, the IAM dropped the proposal
(1051a-55a ), on the theory that “[s]ometimes the majority
8 Petition for a Writ of Certiorari
have to override the minority” (1057a). At the eleventh
hour of the negotiations, the IAM submitted a revised pro-
posal which gave a limited system seniority to KSC em-
ployees according them no credit for prior service with
the company, but giving them initial accrual dates as of
the date the contract was to be signed (985a, 1468a)—
ie., they were treated for seniority purposes as if they had
been hired on the date the contract was to be signed, and
as a result were placed behind all other existing TWA
employees, no matter how recently the latter had been
hired.
When the KSC employees questioned the IAM as to
the seniority agreement, the IAM stoutly insisted that
TWA’s opposition had defeated equal seniority, and that
the Union was forced to accept the limited seniority in
order to preserve the balance of a good contract (1115a,
1154a). Relying upon the word of their national leaders,
the KSC employees voted for the contract (397a), which
was ratified overwhelmingly on a national basis (1728a).
It was not until 10 months later that the KSC em-
ployees discovered the truth about the negotiations. Until
then, they had relied for 7 years on their national Union’s
good faith, and its assurances about what had occurred
during negotiations. By the time the truth was discovered,
it was too late to do anything about it; within 5 months,
TWA lost the KSC contract (552a-54a) and the KSC
employees were either immediately laid off, or were trans-
ferred to other lecations where they suffered lay-offs
shortly thereafter. The lay-offs would not have occurred
had they had system seniority on the same basis as the
other TWA employees represented by the IAM (see e.g.
401a-02a, 907a, 933a).
The District Court held that the IAM had breached
its duty of fair representation by the lies and misrep-
“eee Det!
Th OE ery ete: lyn Een
abbas PLIERS bail
Petition for a Writ of Certiorari 9
resentations which it had made to the KSC employees
over the years it had represented them, a course of con-
duct which it described as a “web of deceit” (Attached
Appendix, p. A21). It held, however, that the agreements
which restricted the KSC employees seniority were them-
selves not violations of the IAM’s duties, because they
were the product of TWA’s desire for a stable work force
at KSC (Id. pp. A5, Al7). It therefore entered a verdict
in favor of the Petitioners against the IAM, and entered
judgment in favor of TWA against the Petitioners.
On cross-appeals to the Court of Appeals,’ that Court
affirmed the District Court’s holding that the agreements
did not constitute a violation of the IAM’s duty to its KSC
members; however, it reversed the District Court’s verdict
against the IAM, on the ground that no harm had been
done to the Petitioners by the lies and misrepresentations,
since they represented such a minority of the total Union
membership that the contracts would have been ratified
over their opposition had the truth been told (Id. p. A54).
3. The District Court had entered final judgment for TWA,
and Petitioners appealed that judgment under 28 U. S. C. § 1291.
However, liability issues had earlier been severed from damage
issues, and thus the Plaintiffs’ verdict against the IAM was not a
final judgment. The District Court certified its verdict against the
IAM under 28 U. S. C. § 1292(b) and the Court of Appeals there-
after accepted interlocutory cross-appeals from that verdict. The
Petitioners appealed the holding that the agreements themselves
did not violate the IAM’s duty of fair representation, and the IAM
nealed the verdict based upon the Court’s findings of dishonesty.
10 Petition for a Writ of Certiorari
REASONS FOR GRANTING THE WRIT.
1. The Case Presents Important Questions of F'ederal Law
Concerning the Duties Owed by Urisny to Their
Members.
The duty of fair representation was developed by this
Court as a concomitant to a Union’s right to exclusive
representation of persons that it has been certified to repre-
sent: Steele v. Louisville and Nashville R. R., 323 U. S. 192
(1944). Once certified, minority groups within the Union
are unable to represent themselves: NLRB v. Allis-
Chalmers Mfg. Co., 388 U. S. 175, 180 (1967). Since they
are unable to look out for their own interests except
through the intervening strata of Union leadership, this
Court has imposed upon that leadership a fiduciary respon-
sibility to represent the entire unit as a class, and has de-
clared illegal those actions by Union leaders which arbi-
trarily sacrifice the interests of a minority to benefit the
majority: Steele v. Louisville & Nashville R. R., supra, at
199-200; Conley v. Gibson, 355 U. S. 41 (1957). While it
is of course impossible for Union leaders to satisfy every-
one it represents, the Union must nonetheless act with
honesty and “complete loyalty to . . . all it represents”,
Ford Motor Co. v. Huffman, 345 U. S. 330, 337-38 (1953).
To satisfy this duty, a Union must act “without hostility or
discrimination toward any, [must] exercise its discretion
with complete good faith and honesty, and [must] avoid
arbitrary conduct”: Vaca v. Sipes, 386 U. S. 171, 177
(1967).
Thus, it is no answer to an unfair representation case
to say, as the Court of Appeals has in effect said, that
actions satisfactory to a majority of employees satisfy the
duty of fair representation, especially when, as here, the
majority of employees have been the beneficiary of the
Union leaders’ past conduct, and has actively and hostilely
I ATT OIE IT VO RY HPts weer ag’
ENT CRP TE 7 er Pree
Petition for a Writ of Certiorari 11
opposed the minority’s quest for equality. Simply stated,
a minority has no “right” to fair representation if its com-
plaints about discrimination can be legally rejected by the
devise of putting the complaints up to a majority vote
through the ratification process. Union leaders would be
able to insulate themselves from liability by defaulting in
their leadership obligations, and simply tossing the ball of
contention into the arena of the vote. This is a particularly
harsh result when the normal ratification process involves
many issues; an employee who favors rectification of dis-
crimination against a minority group may nonetheless vote
against that claim if the proposed rejection is coupled with
a substantial wage increase. We submit, therefore, that
this Court should not let stand the concept that a minor-
ity’s legal right to fair representation can be extinguished
in the voting booth.
Closely related to the foregoing issue is the question
of whether a Union may hide its conduct behind lies and
misrepresentations, and yet escape liability. In this case,
the lies extended from the very first contract in 1964 until
after the last in 1970. The IAM leaders misrepresented to
their trusting KSC members the derivation of the restricted
seniority, their own efforts to remove it, and TWA’s posi-
tion concerning it.
There is no reason in the adversary world of labor-
management relations for Union members to doubt that
their own leaders are telling them the truth. Thus, as in
this case, circumstances of wrongdoing can be covered up
over long periods of time, and the cumulative effect is to
create a status quo which can be difficult to change. To
impose upon employees who have been the victims of dis-
crimination the burden of proving what they would have
done six years before had they only known the truth, is, in
effect, to defeat their case ab initio and relegate them to
12 Petition for a Writ of Certiorari
the status of permanent discriminatees, as has occurred
here.
We can only speculate what the KSC employees
might have done had they known that it was their national
union which was responsible for the seniority restriction.
They might, for example, have challenged TWA’s volun-
tary recognition of the Union to represent them, under
Pan American World Airways v. United Brotherhood of
Carpenters, 324 F. 2d 217 (9th Cir. 1963) cert. den’d 376
U. S. 964 (1964); they might have sought protective pro-
visions, including successorship clauses, or special provi-
sions on severance pay; they might have waged more
effective political warfare within the Union.
Any number of ideas can be conjured up; but the
point is that it is an impossible burden to show what might
have occurred when one has been lied to for so long that
the employees comprising the majority have come to rely
upon the status quo created thereby as natural conditions
of their employment. The effect of the lies in this case was,
therefore, to shape and create the political dispute which
caused the union leadership to respond by rejecting TWA’s
thrice-made proposal for equal seniority. The lies cannot
be divorced from the question of submitting minority
rights to a vote. We submit that this Court cannot let
stand a holding that a Union satisfies its fiduciary obliga-
tion to its members when it lies to them, and affirmatively
misrepresents matters which go to such important ques-
tions of job security as seniority.
As this Court held in Steele, supra, variations in con-
tracts as they apply to union members must be based upon
differences “relevant to the authorized purposes of the
contract in conditions to which they are to be applied
.” 323 U.S. at 203. The decision in this case that
the underlying seniority agreements did not amount to a
PEM ses Dale
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Petition for a Writ of Certiorari 13
breach of the IAM’s duty of fair representation substan-
tially erodes that principle.
There was no difference in skill involved in the jobs
at KSC and elsewhere; the IAM and TWA agreed to that
in the course of their 1970 negotiations (316a-18a, 75la).
Transferees to KSC accrued system seniority as they
worked there, while persons hired at KSC who did iden-
tical work did not (see, e.g. 392a-94a). The only dif-
ference between those who accrued system seniority and
those who did not was that the latter were hired in Florida
and the former were not. The purpose of this dichotomy
was to protect the Union’s members at already-existing
locations when the KSC operation began (167a-68a,
1535a). If place of hiring is a “relevant difference” within
the meaning of Steele, virtually any discrimination in
seniority can be justified.
The holding of the Court of Appeals thus stands for
the propositions that a Union may propose and bring
about arbitrary contract discriminations which protect one
group of members at the expense of others, hide its con-
duct behind lies and misrepresentations, and submit the
discriminatory provisions to a vote of the membership (a
majority of whom favor the discrimination ), thereby avoid-
ing liability for breaching the minority’s rights to fair rep-
resentation. We submit that the holding undercuts this
Court’s holdings respecting Unions’ duties, and permits
abuses of the exclusive representation provisions of the
federal labor laws.*
4. We have not discussed TWA’s pee for executing and
enforcing the contracts. That cae oe is reached only upon a de-
termination that the Union breached its duty in respect to the
agreements themselves. We propose to argue issues related to
A’s liability if certiorari is granted. In connection with TWA’s
liability, see Jones v. Trans World Airlines, Inc., 495 F. 2d 790 (2d
Cir. 1974).
14 Petition for a Writ of Certiorari
2. The Decision Conflicts With the Second Circuit’s De-
cision in Jones y. Trans World Airlines, Inc.
The Second Circuit's decision in Jones v. Trans World
Airlines, Inc., 495 F. 2d 790 (2d Cir. 1974), conflicts with
the decision in this case in principle, if not directly. The
Jones case involves the same defendants as in this case,
and also involves the 1970 collective bargaining agreement.
In Jones, TWA had acceded to the Union’s demand
that the Union be recognized as bargaining agent for a
group of employees it had not previously represented. In
subsequent negotiations, TWA and the IAM agreed that
the members of this group should not be given seniority
credit for the time they had worked for TWA, but should
be treated as newly-hired as of the date that the contract
was to be executed. Thus, they were placed behind all
other IAM members and treated as newly hired in Jan-
uary, 1970--just as were the Petitioners in this case. In-
deed, they had the same seniority date as do the
Petitioners.
The Second Circuit held that the IAM’s conduct vio-
lated its duty of fair representation, and held both the
IAM and TWA liable for reconstituted seniority and
damages.
The Third Circuit considered Jones distinguishable
on the ground that, in Jones, the Union had discriminated
against the Plaintiffs on the basis of their prior non-mem-
bership in the Union.
We respectfully find the Jones case indistinguishable
from this case. The Plaintiffs in the Jones case were in
precisely the same position in 1970 as were the Petitioners
in this case in 1964. Neither group had previously con-
sisted of Union members; and both groups were singled
out for disparate treatment which favored pre-existing
Union members. The Court in Jones based its decision on
the premise that when the Union undertook to represent
ey rr oe
Petition for a Writ of Certiorari 15
the Plaintiffs in that case, they were de facto members and
therefore could not be discriminated against: 495 F. 2d at
797. We submit that the same rationale applies to the
Petitioners.
Of course, the Jones plaintiffs were immediately tail-
ended on the system seniority roster, while the Petitioners
in this case were initially denied system seniority alto-
gether. We submit that there is no basis for a distinction
in that. When the present Petitioners were finally given
limited system seniority, they were treated exactly the same
as were the Plaintiffs in Jones. In effect, the Jones nego-
tiation between IAM and TWA was a telescoped version of
the KSC negotiations between IAM and TWA: previous
non-members ended up with tailended seniority irrespec-
tive of their skills or prior company service. To find a dis-
tinction between the two groups is to say that dues-paying,
lied-to Union members are in a worse position vis-a-vis
their Union than are non-members.
We submit that the decision in this case, and the de-
cision in the Jones case, are irreconcilable and that the
conflict, unless resolved, will lead to confusion among
Union leaders, Union members and the Courts as to the
duties of Union leaders.
CONCLUSION.
For these reasons, a Writ of Certiorari should issue to
review the judgment and conclusion of the Third Circuit.
Respectfully submitted,
Davi C. TooMEY
Duane, Morris & HECKSCHER
1600 Land Title Building
100 So. Broad St.
Philadelphia, Pa. 19110
Counsel for Petitioner
IN THE
UNITED STATES DISTRICT COURT
For THE EASTERN District OF PENNSYLVANIA
Crviz Action No. 71-2945
CHARLES DEBOLES, et al.
v.
TRANS WORLD AIRLINES, INC.
and
INTERNATIONAL ASSOCIATION OF MACHINISTS
and AEROSPACE WORKERS, AFL-CIO; DIS-
TRICT LODGE 142, IAMAW, AFL-CIO; LOCAL
LODGE 1776, IAMAW, AFL-CIO
MEMORANDUM OPINION AND ORDER.
VANARTSDALEN, J. October 31, 1975
Plaintiff, Charles Deboles, has brought a class action
on behalf of active and furloughed employees of Trans
World Airlines, Inc. (TWA) who were originally em-
ployed by TWA at the Kennedy Space Center (KSC) and
worked in job classifications represented by the Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CiO (IAM).' The defendants are the employer,
TWA, and the union, IAM.’ The gravar -n of the com-
1. By order dated March 29, 1973, pursuant to Fed. R. Civ. P.
23, a class action as a Rule 23(b)(2) class was certified.
2. Additional defendants are the subordinate body of the union
representing workers of TWA, District Lodge 142, and the local
body of the union representing TWA employees in Philadelphia,
Local Lodge 1776.
(Al)
AQ District Court Opinion
plaint is that the union violated its duty of fair representa-
tion owed to the plaintiffs by denying to them the same
seniority rights that all other IAM represented TWA em-
ployees enjoyed. TWA’s liability is premised on its par-
ticipation in the creation and enforcement of the contracts
which contained the seniority provisions.
The evidence establishes that the union defendants
actively deceived the KSC employees with regard to union
efforts to secure systemwide seniority benefits, and, in so
doing, the union breached its fiduciary duty of fair and
honest representation. Therefore, on the issue of liability,
judgment will be entered in favor of the plaintiff class
against the defendant union and its subordinate defendant
units.
Findings of Fact.
1. Plaintiff, Charles Deboles, is a resident of Media,
Pennsylvania. He was first employed by defendant, Trans
World Airlines, Inc. (TWA) at Kennedy Space Center
(KSC), Merritt Island, Florida on May 18, 1967 as a
medical technician, a non-bargaining unit position. On
February 28, 1968 he became a stores clerk which was a
job classification represented by International Association
of Machinists and Aerospace Workers, AFL-CIO (IAM).
Since that time he has continued to be a member of the
IAM and an employee of TWA although he has been on
furlough status since January 14, 1974 (N. T. 17-17a).
2. Defendant, Trans World Airlines, Inc., is a Dela-
ware corporation authorized to do business in Pennsy]l-
vania and which has an office at the Philadelphia Inter-
national Airport in Philadelphia, Pennsylvania (N. T. 16).
3. Defendant, International Association of Machinists
and Aerospace Workers, AFL-CIO, is an unincorporated
labor organization consisting of a Grand Lodge and vari-
District Court Opinion A3
ous District and Local Lodges throughout the United
States and Canada. It has duly authorized officers and
agents engaged in representing employee members in
Pennsylvania (N. T. 17).
4. At all times material hereto, the IAM has been
certified as the exclusive bargaining representative of per-
sons employed by TWA in the job classifications denom-
inated “Mechanics and Related Employees” by the Na-
tional Mediation Board under the Railway Labor Act, 45
U.S.C. § 151 et seq. (1970) (N. T. 675).
5. Defendant, District Lodge 142, IAMAW, AFL-
CIO (District Lodge 142), is a delegate body of the IAM
representing bargaining unit persons employed by TWA
throughout the country (N. T. 664).
6. Defendant, Local Lodge 1776, IAMAW, AFL-CIO
(Local 1776), is the Local Lodge which represents TWA
employees at Philadelphia International Airport. It has
an office at 520 Main Street, Darby, Pennsylvania. Plain-
tiff Deboles is a member of Local 1776 and has been since
his transfer to Philadelphia on May 1, 1971 (N. T. 16-17,
306 ).
7. All defendants have been parties with each other
to collective bargaining agreements covering IAM mem-
bers employed by TWA at KSC and elsewhere since 1964
(N. T. 18).
8. In 1963, TWA submitted an ultimately successful
bid to the National Aeronautic and Space Administration
(NASA) for the base support contract at KSC. (At that
time called the Merritt Island Launch Area—MILA)
(N. T. 40, 63).
9. Prior to beginning operations at KSC, TWA ap-
proached the IAM to indicate that it would be willing to
A4 District Court Opinion
recognize the IAM as bargaining representative at KSC
(N. T. 39-42). TWA was concerned with maintaining a
stable work force at KSC and (a) it believed that it could
secure greater labor stability under the Railway Labor Act
as compared with the National Labor Relations Act (39-
42, 181-82); (b) TWA had a stable relationship with the
IAM and hoped to avoid jurisdictional disputes (N. T.
41-42),
10. In January 1964, after ratification of the main
collective bargaining agreement for TWA employees,
TWA and the IAM negotiated a supplemental agreement
to cover KSC employees. The main collective bargaining
agreement applied at KSC except as varied by the MILA
Supplement (P-3, N. T. 38, 43).
11. “System Seniority” is nationwide job classifica-
tion seniority under which TWA employees are ranked on
national system seniority rosters based upon their length
of service in that classification, regardless of the TWA lo-
cation at which they work. System seniority gives an em-
ployee the right to bid for vacancies at other locations
from the locations where they were then working, the
right to bump, or displace, employees with junior classifi-
cation seniority at other locations in the event of a fur-
lough, and preferential rights to shift assignments and days
off at the particular location where an employee is em-
ployed (N. T. 32-34, 164-65).
12. Since at least 1960, al! TWA employees repre-
sented by IAM accrued system seniority from the date
they entered their respective classifications, except em-
ployees hired by TWA at KSC (N. T. 34-35, 165).
13. The 1964 MILA Supplement provided that new
employees hired at KSC would not be listed on the system
seniority roster and would not be permitted bid or dis-
District Court Opinion A5
placement rights to other system locations. It also pro-
vided that system empioyees could bid for jobs at KSC
only on a “consideration basis,” that is, without the right
to a job on the basis of seniority. System transferees could
not use their system seniority for any purpose at KSC but
had KSC seniority from the date of transfer. However,
the system seniority continued to accrue for transferees
to KSC (P-3), but they had to remain at KSC for one
year before they were eligible to bid out (P-3, N. T. 143-
46).
14. TWA wanted to limit transfers from the TWA
system to KSC to prevent wholesale and seasonal “snow-
bird” * transfers from another station, to be able to ensure
that the skills would be usable at KSC and to minimize
disruption at KSC which would be caused by displace-
ment of KSC employees (N. T. 138-142, 152-53).
15. TWA needed a stable work force at KSC because
of the vital importance of KSC to the national space pro-
gram (N. T. 42-44).
16. At the time that the MILA Supplement was con-
cluded on February 17, 1964 (N. T. 112), there were no
TWA employees working at KSC (N. T. 65).
17. TWA began to supply base support services at
KSC on April 1, 1964.
18. There were approximately 2000 TWA employees
at KSC of which approximately 70% (1400) were in IAM
represented classifications. During the period in which
TWA operated the KSC between 60 and 90 employees
transferred to KSC (N. T. 135).
19. The rapid increase in the size of the work force
at KSC provided promotional opportunities more rapidly
3. “Snowbird” refers to a person with high seniority who trans-
fers to Florida for the winter (N. T. 143).
A6 District Court Opinion
than on the TWA system generally (N. T. 279-80, 475-
77).
20. KSC employees who were junior in seniority to
system employees were protected from being laid off or
“bumped” when layoffs occurred at other stations on the
TWA system (N. T. 279-280).
21. When union members at KSC complained about
their lack of system seniority, Mr. Miller, General Chair-
man of District Lodge 142, advised them that NASA
wanted a stable work force but that seniority rights for
KSC employees could be changed in the 1966 contract
(N. T. 482-83, 1136).
22. Prior to the 1966 collective bargaining agreement,
the employees at Local 773 (KSC) submitted a proposal
to Carl Gordon, Assistant General Chairman of District
Lodge 142 to eliminate the system seniority restrictions
for KSC employees from the supplemental agreement
(N. T. 392-94).
23. When the negotiations opened in 1965, no pro-
posal was made in the opening documents by either TWA
or the IAM with regard to changing the seniority at KSC
(N. T. 393).
24. In July 1966, all TWA employees went out on
strike (N. T. 396).
25. Union officials were concerned that the strike and
particularly its effect on the space program at KSC might
prompt Congress to pass binding arbitration legislation.
Local 773 negotiators were urged by W. J. Usery of the
IAM Grand Lodge and Gordon of District Lodge 142 to
settle on a tentative agreement for KSC employees and
return to work. A tentative agreement was reached only
as to KSC which did not grant system seniority to KSC
District Court Opinion A7
employees. This agreement was ratified and workers at
KSC returned to work a month earlier than TWA system
employees (N. T. 396-403).
26. The 1966 Supplemental Agreement (pp. 98 to
101 of P-8) did make minor changes in seniority ap-
plicable at KSC. Under paragraph 5, employees newly
hired at KSC after one year could bid for vacancies on
the system on a preference bid basis, namely, that the
bid was not of right but KSC employees wou!d be pre-
ferred over new hires at the system location. TWA sys-
tem employees who had transferred to KSC, been pro-
moted in classification or attained a lead position, and
then transferred back to the TWA system, could bid back
into the system only at the level at which they had left
the system to go to KSC (N. T. 86, 122-124, 198-200).
27. Gordon was questioned as to what had happened
and he advised Local 773 that the union had done the
best it could, but that TWA had attached unacceptable
strings to the proposal, including an additional no-strike
clause, unlimited shifts, and additional work rule changes
(N. T. 493). However, W. E. Malarkey, who was the
principal negotiator for TWA in the national negotiation
(N. T. 166), testified that he did not recall any “deep
discussions at any point in that round about seniority at
MILA.” (N. T. 193).
28. A proposal submitted by Local Lodge 773 to
incorporate KSC into the TWA system for seniority pur-
poses was submitted at the 1967 District Lodge 142 con-
vention and was approved by the convention (N. T. 409-
410).
29. On November 1, 1968 negotiations leading to the
1970 agreement cpened with an exchange of proposals.
A proposal submitted by District Lodge 14° as item 2 was
A8 District Court Opinion
to grant retroactive system seniority to KSC employees
(P-9). TWA’s 27th proposal also would have granted
retroactive system seniority to KSC employees (P-7a).
30. In the course of the negotiations, TWA expressed
a concern over the transferability of job classifications
from KSC to the TWA system because of the substantial
difference between the type of work conducted at KSC
from that at other TWA locations. An agreement was
reached by which job classifications at KSC were matched
with job classifications elsewhere on the system (N. T.
275-277).
31. Discussions of KSC issues were infrequent in the
early phase of negotiations until May 1969 (N. T. 216,
229-296),
32. In May, 1969, District Lodge 142 held its an-
nual convention in Las Vegas, Nevada, and Carl Gordon
reported that the KSC seniority issue was “very close to
settlement” but that “[a]ny full report at this time might
vary from the final draft.” (N. T. 624).
33. In late June or early July 1969, TWA submitted a
proposal to John Schwind of District Lodge 142 which
would have given retroactive system seniority to KSC.
The proposal bears the typed name of Wm. J. Malarkey
of TWA at the end. Handwritten markings were made
upon the document by Carl Gordon (N. T. 785-90).
34. Jack Barker, Vice President of District Lodge
142, and James Fowler, Assistant General Chairman of
District Lodge 142, reported to the membership of Local
773 at KSC that retroactive system seniority had been
agreed to (N. T. 417-18, 526-27, 532, 741, 837-38, 1092-
94).
District Court Opinion A9
35. On October 15, 1969, TWA submitted a docu-
ment to the union identical to that submitted in June or
July (N. T. 252-53).
36. In September and October, 1969, petitions were
generated by IAM members of Local Lodge 1650 in Kan-
sas City and circulated throughout the TWA system
opposing retroactive system seniority for KSC employees
(N. T. 633, 976-77, 1058). This was caused primarily
by the fear of system employees that they would be sub-
ject to being bumped by KSC employees (N. T. 1058-59).
Local Lodge 1650 made up approximately forty (40) per-
cent of all IAM members represented by District Lodge
142 and had the single largest membership of any local
lodge of TWA workers (N. T. 611-12). Kansas City was
the repair and maintenance center for all TWA aircraft
(N. T. 612).
37. Quentin Kerr, a member of the District Lodge
142 negotiating team was sent to Kansas City and New
York to investigate the opposition to KSC system seniority.
Kerr did not try to persuade the employees at those loca-
tions to drop their opposition (N. T. 632-34).
38. Quentin Kerr believed that it was fair to grant
only future system seniority to KSC employees because
he believed it would be impossible to apply retroactively
and would be unfair to system employees (N. T. 643-47).
39. In late November 1969, the negotiating commit-
tee of District Lodge 142 voted to remove the proposal
for retroactive system seniority for KSC from the negotiat-
ing table because the committee decided that a contract
with such a provision might not be ratified (N. T. 642-43,
976-78, 992-96). Officers and members of Local 773 and
KSC employees were not then advised of this (N. T.
1096-97 ).
Al0 District Court Opinion
40. The officers of Local 773 learned about the peti-
tions opposing granting KSC systemwide seniority rights
during November, 1969. In December, 1969, Local 773
began to send letters and telegrams to union officials
urging support for retroactive system seniority for KSC
employees (N. T. 419-24, P-51 to P-58).
41. Retroactive seniority was kept on the table as a
union proposal until the last day or so of negotiations
(N. T. 1177, 1188).
42. After the negotiating committee decision, Local
773 President, D’Andrea, was advised by union officials
that there were serious problems with the seniority pro-
posal because TWA was attaching strings such as a no-
strike agreement to it (N. T. 840-42).
43. William Blanchard, labor relations Representa-
tive for TWA at KSC, advised D’Andrea and Reilly,
Chairman of the Grievance Committee, that TWA did
not oppose retroactive system seniority for KSC employees
(N. T. 426-29).
44. During the final days of negotiation, a proposal
developed by James Fowler, Assistant General Chairman
of District Lodge 142, was agreed to by the parties. It
provided that KSC employees would begin to accrue sys-
tem seniority as of the date of contract ratification, and
system employees would begin to accrue KSC seniority
on the same date (N. T. 986-87).
45. Final agreement was reached between defendant
unions and TWA on January 16, 1970. KSC employees
were notified of the contract terms by a union bulletin
shortly thereafter as were all TWA employees (TWA-1.
N. T. 429-30). The contract required ratification by a
majoriiy of the entire IAM union membership employed
by TWA (N. T. 1125).
District Court Opinion All
46. The 1970 contract was advantageous from the
union standpoint. It provided for a revamped grievance
and arbitration procedure, beneficial pension and wage
improvements and established a new job classification
(N. T. 271-72, 641-43, 666-67).
47. The 1970 contract provided that all TWA em-
ployees initially hired at KSC would begin to accrue sys-
tem seniority 2s of the date of the contract, January 28,
1970.
48. James Fowler, Assistant Chairman of District
Lodge 142, went to KSC to conduct a ratification meeting.
First he met with the executive board of Local 773 and
advised them that the union had done everything within
its power to obtain retroactive system seniority but that
TWA had attached unacceptable conditions to the pro-
posal and that system seniority for KSC workers effective
as of the signing of the agreement was the best that could
be done (N. T. 430-32, 848-49, 920-23).
49. The primary reason that the union officials did not
obtain retroactive system seniority for KSC employees was
the fear and the risk that the contract would not be ratified
because of opposition by TWA workers at other system
locations.
50. At the ratification meetings, Fowler repeated his
statements that the union had done everything it could to
secure retroactive system seniority, but that TWA had at-
tached unacceptable conditions to it (N. T. 433-35, 708-10,
850-51).
51. The executive committee of Local 773 did not
take an official position on the contract and no member of
the executive committee spoke in support of or in opposi-
tion to ratification at ratification meetings held at KSC
(N. T. 1069).
Al2 District Court Opinion
52. The employees at KSC voted 714-69 to ratify the
contract (D-4).
53. After the voting had been concluded at each of
the two ratification meetings, Reilly of Local 773 stated to
the members that he had suspicions that either TWA or the
union was lying and urged legal action to determine the
truth (N. T. 729-732).
54. In mid-1970, Carl Gordon sent a copy of the Com-
panys offer of retroactive system seniority (P-20) to
Harold Martin, a member of Local Lodge 773 (N. T. 815-
16). Martin showed the document to Reilly and D’Andrea
(N. T. 437-39, 852-53). These men considered this letter
to be the first concrete proof they had that the Company
had in fact been willing to agree to retroactive system
seniority (N. T. 437-39, 852-53). However, they were
concerned because the document contained no signatures
(N. T. 438, 853).
55. In order to find out whether in fact the Com-
pany's proposal had been agreed to, as had been reported
to Local 773 by Barker and Fowler during the summer and
fall of 1969 (finding of fact 34), these men decided to take
the letter to the District Lodge convention in October
1970, and bluff the Union leaders into believing that they
had a copy of a document which contained a signature, in
order to see if they could get an admission that in iact the
document had been signed (N. T. 440, 561, 853, 950-51).
56. On October 30, 1970, at the convention, John
Schwind, President of District Lodge 142, was confronted
with the document and he twice admitted that he had
signed the document though in fact he had not (N. T.
296-300 ).
—
District Court Opinion Al3
57. A motion made on the floor of the October con-
vention of District Lodge 142 to renegotiate for retroactive
system seniority at KSC was defeated (N. T. 321).
58. Shortly thereafter, TWA lost its contract with
NASA and ceased its operations at KSC on April 1, 1971
(N. T. 454-55).
59. In May, 1970, plaintiff Deboles voluntarily trans-
ferred to Los Angeles and began to work there ir the same
job classification as a stores clerk on June 10, 1970 (N. T.
300-01 ).
60. Deboles was laid off at Los Angeles and displaced
into Philadelphia in May 1971 (N. T. 350).
61. Deboles worked at Philadelphia as a stores clerk
until September, 1971 when he was again laid off (N. T.
306).
62. Deboles then filed a grievance because an em-
ployee who had entered the classification of stores clerk
later than February 28, 1968—Deboles’ KSC stores clerk
seniority date—continued to work. That grievance was
denied by the Company because Deboles’ system seniority
date, based on the terms of the 1970 collective bargaining
agreement was January 28, 1970 (the same as all other
former KSC employees with transferable job classifica-
tions), and the other employee involved had an earlier
stores clerk date (N. T. 307-08).
63. Debules’ request to Local 773 to process the sec-
ond step of the grievance procedure was denied (N. T.
309-10).
64. Deboles was laid off in September, 1971, recalled
to work in July, 1972 and laid off again in January, 1974.
As of the date of trial, he remained on furlough status
(N. T. 316).
Al4 District Court Opinion
Conclusions of Law.
1. This court has jurisdiction over the subject matter
of this action. 45 U.S. C. § 152 (Fourth) and (Eleventh)
(1970); 28 U.S.C. § 1337 (1970).
2. This court has personal jurisdiction over each of
the defendants. Fed. R. Civ. P. 4(d)(3); Fed. R. Civ. P.
4(d)(7).
3. Venue is properly situated in the Eastern District
of Pennsylvania. 28 U.S. C. 1391 (1970).
4. The duty of fair representation arises under the
Railway Labor Act, 45 U. S. C. § 151 et seg. (1970), made
applicable to air carriers by 45 U. S. C. § 181 (1970).
5. The defendant unions breached their fiduciary
duty of fair representation owed to plaintiff and members
of the class in failing to make full and honest disclosure
of the union efforts (and lack of efforts) regarding KSC
system seniority from 1965 through 1970 and the reasons
therefor.
6. The defendant unions are liable to plaintiff and the
class.
7. TWA is not liable to plaintiff and the members of
the class because there is no evidence of TWA’s participa-
tion in the misleading and incomplete communications
from the IAM to the KSC employees which forms the basis
for the unions’ liability.
8. The defendants did not violate Section 2 (Fourth)
and (Eleventh) of the Railway Labor Act by requiring
KSC employees to join the union as a condition of employ-
ment hecause seniority is not a condition of union mem-
bership.
District Court Opinion Al5
9. This action is not barred by the statute of limita-
tions because suit was filed less than two years after the
unions’ breach of duty and the applicable statute of limita-
tions is six years. See Gainey v. Brotherhood of Railway
& Steamship Clerks, 275 F. Supp. 292 (E. D. Pa. 1967),
aff d 406 F. 2d 744 (3d Cir. 1968), cert. denied, 394 U. S.
998 (1969).
Discussion.
The broad outline of a union’s duty of fair representa-
tion has been set forth by the Supreme Court in several
leading cases. The seminal case in this area is Steele v.
Louisville & Nashville Railroad Co., 323 U.S. 192 (1944),
which held that the union could not discriminate in its
contracts against minority nonmembers who were ex-
cluded from membership because of race. The Railway
Labor Act, 45 U. S. C. § 151 et seq., was read to impose on
the bargaining representative a duty to exercise its power
fairly on behalf of all for whom it acts without hostile dis-
crimination. The duty springs from the role of a union as
the exclusive representative of a craft. Ford Motor Co. v.
Huffman, 345 U. § 330 (1953), upheld collective bar-
gaining agreements which gave employees seniority credit
for pre-employment military service. Thus, workers with
post-employment military service were surpassed in sen-
iority by some whose actual employment dates were later.
The Court stated:
A wide range of reasonableness must be allowed a
statutory bargaining representative in serving the unit
it represents, subject always to complete good faith
and honesty of purpe.e in the exercise of its discre-
tion. 345 U. S. at 338.
Humphrey v. Moore, 375 U. S. 335 (1964) sustained
the validity of dovetailing seniority lists. An allegation of
Al6 District Court Opinion
dishonesty and deceitful conduct was sufficient to consti-
tute a charge of breach of the union’s duty of fair repre-
sentation though, in the final analysis, the evidence did
not prove the charge. Thus, in both Huffman and Hum-
phrey, the Court found that more favorable seniority for
some employees was based upon relevant and reasonable
considerations.
The union’s enforcement of its grievance procedure
was alleged to be arbitrary in Vaca v. Sipes, 386 U. 3. 171
(1967). The Court, finding no evidence of hostility or
bad faith, stated: “A breach of the statutory duty of fair
representation occurs only when a union’s conduct toward
a member of the collective bargaining unit is arbitrary,
discriminatory, or in bad faith.” 386 U.S. at 190. It must
be determined, then, whether the conduct of the union
falls into one or more of these distinct categories. The
evidence in the instant case supports the conclusion that
while the decision to set up a separate seniority list at KSC
was not a wholly arbitrary one and the different treatment
of KSC employees was not impermissibly discriminatory
on its face, the IAM did not act with honesty and complete
good faith and therefore it violated its duty of fair repre-
sentation.
The Fourth Circuit has set forth three questions as
the test of discrimination and bad faith.
Did the plaintiff show that he received different or
substantially sub-standard representation at the hands
of the Brotherhood? If so, was it because of some im-
proper reason . . .? Did this treatment cause him
injury?
Thompson v. Brotherhood of Sleeping Car Porters, 316
F. 2d 191, 200 (4th Cir. 1963). There is no doubt that
KSC employees were treated differently with regard to
District Court Opinion Al7
seniority rights than other IAM represented TWA em-
ployees. Thus, the focus of the inquiry is on the con-
siderations prompting such different seniority status. An
improper reason would be one that is arbitrary, discrimina-
tory or in bad faith, as prohibited by Vaca v. Sipes, supra.
The plaintiff has argued that the decision was based
on improper “geographical” or “political” considerations.
While a distinction based solely on geographic location
might be arbitrary, it is necessary to inquire into the fac-
tors underlying what is, in result, a geographic distinction.
TWA wanted the KSC workers to be isolated from the
system because many of the job skills at F.SC were unique
to that operation. This was a legitimate consideration
which is supported by the fact that system transferees to
KSC were placed at the bottom of the KSC seniority list.
It is true that distinctions must not be made on the
basis of relative political strength within the union.
Sanders v. Air Line Pilots Ass'n. Int'l., 473 F. 2d 244 (2d
Cir. 1972). But proving an improper political motivation
is difficult. In the instant case, it is undisputed that the
union officials received petitions from Kansas City em-
ployees protesting any grant of retroactive system seniority
to KSC workers. Each side in this lawsuit uses this fact
as support for its respective contention. Plaintiff urges
that the petitions served as a reminder of the political clout
of the system employees. The union officials would be up
for re-election the following vear. The union defendants
maintain that the effect of the petitions was to create in
the union officials the good faith belief that an agreement
providing for retroactive system seniority for KSC workers
would not be ratified by a majority of the membership. It
is well settled that the mere fact that there is a detriment
to one group does not establish a breach of duty.
[Wle are not ready to find a breach of the collective
bargaining agent’s duty of fair representation in tak-
Al8 District Court Opinion
ing a good faith position contrary to that of some in-
dividuals whom it represents nor in supporting the
position of one group of employees against that of
another.
Humphrey v. Moore, 375 U. S. 335, 349 (1964). Simi-
larly, the Sixth Circuit stated:
[T]he mere fact that the integration of a seniority list
is detrimental to one group of employees, and favor-
able to another, does not establish that the union has
reached [sic] its duty of fair representation if it has
integrated the list in good faith and not on grounds
totally irrelevant to seniority.
Kesinger v. Universal Airlines Inc., 474 F. 2d 1127, 1130-
31 (6th Cir. 1973).
The Third Circuit considered whether the duty of
fair representation had been breached in Price v. Inter-
national Brotherhood of Teamsters, 457 F. 2d 605 (3d Cir.
1972). In that case, the decision of a grievance committee
to dovetail employees from a closed operation inte an on-
going operation rather than put them at the bottom of the
seniority list was held to be within the authority of the
committee. The court stated that the union must give
both sides “an opportunity to make their case and then
decide the question honestly and impartially. . . .” Id.
at 611. The evidence discloses in the instant case that
both KSC employees and system employees presented
their views to the negotiators from District Lodge 142 and
that those negotiators gave some consideration to the
respective positions. But to ask whether the decision was
made “honestly” and “impartially” hardly advances the
inquiry because the words are incapable of precise defini-
tion and the decision-making process is subjective.
District Court Opinion A19
The duty to represent fairly the employees in the bar-
gaining unit is a fiduciary obligation. Brady v. TWA, Inc.,
401 F. 2d 87, 94 (3d Cir. 1968), cert. denied, 393 U. S.
1048 (1969). Such an obligation is first and foremost one
of honest disclosure especially when, as here, the fiduciary
is the exclusive agent of two or more groups with poten-
tially, if not inevitably, conflicting interests. The KSC em-
ployees who did not have system seniority had an interest
adverse to the system employees with 1964-1970 seniority
dates. That the employees were aware of their divergent
interests is evidenced by the petitions signed by TWA em-
ployees in Kansas City in the fall of 1969 opposing retro-
active system seniority for those at KSC. The union was
subject to conflicting pressures and inevitably some group
would seem to suffer a disadvantage. In such a situation,
the representative may not exercise its judgment under a
pretense of vigorous advocacy of every position as it did
here. The representative must be honest to all concerned.
The “bad faith” of the union was its deceitful statements
to the KSC employees, not in its conduct at the negotiating
table.
Several circuits have held that bad faith or dishonesty
is not a prerequisite to finding a breach of fair representa-
tion where the distinction complained of is arbitrary or
unreasonable. Jones v. TWA, Inc., 495 F. 2d 790 (2d Cir.
1974); Griffin v. International Union, 469 F. 2d 181 (4th
Cir. 1972); De Arroyo v. Sindicato De Trabajadores Pack-
inghouse, 425 F. 2d 281 (1st Cir.), cert. denied, 400 U. S.
877 (1970). The converse applies to the instant case. An
arbitrary result is not essential to a finding of a breach
of a union’s fiduciary duty where as here the union officials
lied to the membership concerning the status of certain
proposals in the negotiations. To conclude otherwise
would render meaningless the fiduciary obligation of an
A20 District Court Opinion
exclusive bargaining agent to give full and honest dis-
closure of the facts to all those whom it represents no
matter how unpalatable those facts might be.
The union acted in bad faith on numerous occasions.
During the 1966 strike, Carl Gordon, Assistant General
Chairman of District Lodge 142 and W. J. Usery of the
Grand Lodge, anxious that KSC employees return to work,
assured the local negotiators that the union was vigorously
proposing to extend system seniority to KSC workers at the
on-going national negotiations. In fact, there was little
discussion of the issue during the national negotiations.
The union argues that it was not required to adhere to any
particular position or force any issue in the give and take
of negotiations and that it must be free to exercise its
judgment as to what benefits could be obtained and
whether the benefit is worth the cost. That argument
misses the point. In using its best judgment the union
has the responsibility to fully disclose to those whom it
represents what that judgment is and why. At the least,
it must not intentionally deceive its members, regardless
of its motives for so doing.
Quentin Kerr, District Lodge 142 negotiator, testified
that during the negotiations leading to the 1970 contract,
he believed that it would have been impossible to grant
retroactive system seniority because of practical difficul-
ties of administration and also because such a provision
would not be ratified by the necessary majority. Yet the
KSC employees were consistently told that the union was
doing its best to obtain this benefit for KSC, and the rea-
son that it was not agreed to was that TWA attached
unacceptable strings to the proposal, primarily a no-strike
clause. IAM officials did not tell the KSC workers the
reason given at trial which was that the union did not want
to jeopardize membership ratification by including a con-
District Court Opinion A21
troversial provision. At the ratification meeting at KSC,
Fowler of District Lodge 142, blamed TWA for the failure
to obtain retroactive system seniority when, in fact, TWA
included such a proposal in the early negotiations and at
no time strongly opposed such a provision.
Further evidence of union bad faith can be found in
the conduct of Schwind, President of District Lodge 142,
who, at the 1970 convention admitted signing the TWA
proposal regarding KSC seniority and thus converting a
proposal into a tentative agreement though he had in fact
not signed it. Apparently, Schwind could not keep track
of the web of deceit spun by the union. In any event,
this so-called “sign-off” agreement was never disclosed at
the ratification meetings.
I am convinced that the plaintiff has sustained the
burden of proving that the union officials intentionally lied
to the KSC employees. This is sufficient for a finding of
liability without the necessity of showing that the contract
would not have been ratified had there been full and
honest disclosure. Even if union officials believed that a
contract without retroactive system seniority for KSC was
good for the union as a whole, in misleading the KSC
employees regarding ‘TWA’s opposition, the union
breached its fiduciary duty of honest and fair representa-
tion.
It may be noted that Local 1776, the local lodge of
the IAM in Philadelphia, is a party to this case because
the plaintiff Deboles has been a member of that unit since
his transfer to Philadelphia. Local 1776 was not a direct
participant in the events from 1964 to 1970 which gave
rise to a finding of the union defendants’ liability. How-
ever, since there is liability and relief may involve all local
unions, it is appropriate that Local 1776 be found liable
along with the IAM and District Lodge 142.
A22 District Court Opinion
Plaintiffs’ claim against TWA cannot be sustained.
This is not a case where patent discrimination was incor-
porated into a collective bargaining agreement. See Rich-
ardson v. Texas and New Orleans R. R., 242 F. 2d 230
(5th Cir. 1957). Liability of the IAM is predicated on
its dishonest conduct in the context of a fiduciary relation-
ship. There is no evidence that TWA acted collusively
with the IAM to deceive the KSC employees or was in
any way aware of the untruthful statements made by
union representatives to KSC employees. TWA’s involve-
ment was tangential at most and it would be unfair to
hold it responsible for the unknown deception of union
officials. See, Carroll v. Brotherhood of Railroad Train-
men, 417 F. 2d 1025 (1st Cir. 1969), cert. denied, 397
U. S. 1039 (1970). A limitation on employer liability for
union misconduct which is unknown to the employer must
be imposed where the union liability is predicated on false
and misleading communications to members regarding the
status of an issue on the bargaining table and union efforts
to obtain a benefit.
The existence of TWA’s split seniority system did not
violate Section 2 (Fourth) and (Eleventh) of the Railway
Labor Act. Section 2 (Fourth) states that it is unlawful
for a carrier to interfere with the organization of its em-
ployees or to influence or coerce them to join or remain
members of any labor organization. Section 2 (Eleventh)
provides that there may be a union shop and union mem-
bership may be a condition of employment, so long the
membership rights will be equally available to all. But
seniority, though a condition of employment, is not a con-
dition of union membership. See Humphrey v. Moore,
375 U. S. 335 (1964); Ford Motor Company v. Huffman,
345 U. S. 330 (1953). Since the split seniority system
does not violate Section 2 (Eleventh), defendants have
District Court Opinion A23
not lost the protection afforded by that provision and,
consequently, have not violated Section 2 (Fourth) either.
This determination is limited solely to the liability of
the defendant union and its subordinate bodies. The very
difficult question of appropriate remedy including possible
punitive damages must await further hearings. The sig-
nificance of the defendants’ contention that, had it in-
sisted upon KSC employees obtaining retroactive seniority,
the favorable collective bargaining agreement that had
been negotiated probably would never have been ratified
by the membership majority will have to be carefully
considered.
To the extent that the foregoing Discussion contains
statements of fact or conclusions of law not otherwise set
forth in the foregoing Findings of Fact or Conclusions of
Law, the same shall be deemed as Findings of Fact or
Conclusions of Law.
A24 District Court Order
IN THE
UNITED STATES DISTRICT COURT
For THE EASTERN District OF PENNSYLVANIA
Crvit Action No. 71-2945
CHARLES DEBOLES, et al.
v.
TRANS WORLD AIRLINES, INC.
and
INTERNATIONAL ASSOCIATION OF MACHINISTS
and AEROSPACE WORKERS, AFL-CIO: DIS-
TRICT LODGE 142, IAMAW, AFL-CIO: LOCAL
LODGE 1776, IAMAW, AFL-CIO
ORDER.
Anp Now, this 3lst day of October, 1975, based upon
the foregoing Findings of Fact, Conclusions of. Law
and Discussion, judgment on the issue of liability is en-
tered in Favor of plaintiff class Acainst the defendants,
International Association of Machinists and Aerospace
Workers, AFL-CIO; District Lodge 142, IAMAW, AFL-
CIO; Local Lodge 1776, IAMAW, AFL-CIO. Judgment
on the issue of liability is entered in Favor of the defend-
ant Trans World Airlines, Inc. Acainst the plaintiff class.
A conference on the issues of appropriate relief, in-
cluding damages is hereby set for January 5, 1976 at 11:00
o'clock A. M. in Room 14614, U. S. Courthouse, Inde-
pendence Mall West, Philadelphia, Pennsylvania 19106.
By THE COURT:
DonaLp W. VAN ARTSDALEN, J.
Court of Appeals Opinion A25
UNITED STATES COURT OF APPEALS
For THE Tuirp Crircuir
Nos. 76-1369 and 76-1535
CHARLES DEBOLES
309 Jefferson Street
Media, Pennsylvania
and
VIRGIL O. GRIFFIS
1400 Manley Road
Walnut Hills
Apt. B-3
West Chester, Pennsylvania
On behalf of themselves as individuals and on
behalf of all others similarly situated,
Appellants in No. 76-1369
v.
TRANS WORLD AIRLINES, INC.
Philadelphia International Airport
Philadelphia, Pennsylvania
and
INTERNATIONAL ASSOCIATION OF MaA-
CHINISTS AND AEROSPACE WORKERS,
AFL-CIO; District Lodge 142, IAMAWW, AFL-
CIO; Local Lodge 1776, IAMAW, AFL-CIO
520 Main Street
Darby, Pennsylvania
A26 Court of Appeals Opinion
Charles Deboles, Virgil O. Griffis, Interna-
tional Association of Machinists and Aero-
space Workers, AFL-CIO, International
Association of Machinists and Aerospace
Workers, District Lodge 142 and IAMAW
Local Lodge 1776,
Appellants in No. 76-1535
(D. C. Civil Action No. 71-2945)
On APPEAL FrRoM THE UNtTep States Districr Court
FOR THE EASTERN DistricrT OF PENNSYLVANIA
Argued November 8, 1976
Before: ApaMs and Wels, Circuit Judges and
Gerry,° District Judge
David C. Toomey, Esquire
Duane, Morris & Heckscher
1600 Land Title Building
Philadelphia, Pa. 19110
Attorneys for Charles Deboles and
Virgil Griffis
Robert M. Landis, Esquire
Gregory D. Keeney, Esquire
Dechert, Pnce & Rhoads
3400 Centre Square West
1500 Market Street
Philadelphia, Pa. 19102
Attorneys for Trans World
Airlines, Inc.
® John F. Gerry, Uniied States District Court for the District
of New Jersey, sitting by designation.
Court of Anpeals Opinion A27
Joseph L. Rauh, Jr., Esquire
John Silard, Esquire
Rauh, Silard and Lichtman
1001 Connecticut Avenue, N. W.
Washington, D. C. 20036
Attorneys for International Association of
Machinists and Aerospace
Workers, AFL-CIO
Richard Kirschner, Esquire
Miriam L. Gafni, Esquire
Markowitz & Kirschner
1500 Walnut Street
Philadelphia, Pa. 19102
Attorneys for District Lodge 142 and
Local Lodge 1776, IAMAW, AFL-CIO
Of Counsel:
Plato Papps, Esquire
1300 Connecticut Avenue, N. W.
Washington, D. C. 20036
OPINION OF THE COURT
(Filed March 31, 1977)
Gerry, District Judge
Appellant Deboles represents a class of approximately
300 members’ of the International Association of Ma-
chinists and Aerospace Workers (hereinafter “IAM”)
1. The instant class was certified by the district court pursuant
to F. R. Civ. P. 23(b)(2). Counsel for appellants have informed
the court that the co-plaintiff below, Virgil O. Griffis, has termi-
— his employment with TWA and discontinued his interest in
e case.
A28 Court of Appeals Opinion
who were originally employed by appellee Trans World
Airlines (“TWA”) at the Kennedy Space Center in Mer-
ritt Island, Florida, for various periods of time prior to
January 28, 1970. The employees alleged below that the
TWA-IAM collective bargaining agreements providing the
Kennedy Space Center employees with seniority rights in-
ferior to those enjoyed by all other employee-members
elsewhere in the TWA system violated the duty of fair
representation implied under the Railway Labor Act, 45
U.S.C. §§ 151 et seq. (1970), as applied to air carriers by
45 U. S. C. § 181 (1970). The employees also claimed
that certain false statements by IAM officials regarding
the IAM’s failure to secure equal system seniority rights
violated the union’s duty of fair representation.
After a non-jury trial on the issue of liability, the Dis-
trict Court for the Eastern District of Pennsylvania’
found that the seniority provisions of the collective bar-
gaining agreements were not discriminatory and did not
violate the IAM’s duty of fair representation. The dis-
trict court also found, however, that the defendant unions
breached their fiduciary duty of fair representation in fail-
ing to make full and honest disclosure concerning both the
nature of union efforts toward achievement of equal sys-
tem seniority and the reasons why the union was unable
to achieve such system seniority in misstatements to these
employees in connection with the 1966 and 1970 collective
bargaining agreements. TWA was held not to be liable for
these untruthful statements of union officials, and a final
judgment order was entered in favor of TWA.
in No. 76-1369, the plaintiff below appeals pursuant
to 28 U. S. C. § 1291 from the final judgment in favor of
TWA. The district court determined that there was no
2. Deboles v. Trans World Airlines, Inc., Civil No. 71-2945
(Oct. 31, 1975) (Hon. Donald W. VanArtsdalen). The opinion
and order appear at App. 1384a-1406a.
tm 6 as at 6 old
Ae gett Uw
Court of Appeals Opinion A29
just reason for delay and properly entered judgment under
F. R. Civ. P. 54(b), inasmuch as a single appeal from that
judgment reasonably could be expected to decide the issue
of TWA’s liability without delaying appellate review until
after the conclusion of bifurcated proceedings, not involv-
ing TWA, on the amount of damages.
In No. 76-1535, the plaintiff's class of employees and
defendant unions appeal by permission of this court under
28 U. S. C. § 1292(b) from the interlocutory order deter-
mining liability in favor of the plaintiffs below and against
the unions. The employees urge that the district court
erred in not also finding that the collective bargaining
agreement unfairly discriminated against these employees,
while the unions assert that it was error to hold the unions
liable for false statements in the absence of prejudicial
effect upon the ultimate outcome of the ratification ballot.
We affirm the district court’s finding that the seniority
differences do not violate the duty of fair representation,’
and we reverse the finding that the union is liable for false
statements to these employees under the facts of this case.*,
We also affirm the finding of ao liability with respect to ,
I.
In February 1964, TWA entered into a contract with
the National Aeronautics and Space Administration
(NASA) to provide base support services at the Kennedy
Space Center in Merritt Island, Florida. At the time,
TWA had a collective bargaining agreement with the
IAM * covering many employees throughout the TWA sys-
3. See part III, infra.
4. See part IV, infra.
5. The IAM Grand Lodge or International is the certified bar-
gaining representative of the relevant bargaining unit of TWA em-
ployees in this case. The International was named as defendant
A30 Court of Appeals Opinion
tem in the aircraft industry. In early 1964, after ratifica-
tion of the main collective bargaining agreement for TWA
employees but before TWA’s operations commenced at the
Space Center, TWA and the IAM entered into a supple-
mental agreement applicable only to the TWA employees
at the Kennedy Space Center. These employees were sub-
ject to the same series of collective bargaining agreements
in 1964, 1966 and 1970, applicable to other IAM members
throughout the TWA system, except as modified by sup-
plemental agreements.
In the job classifications relevant to this action, the
TWA-IAM agreement generally applied to personnel main-
taining and servicing aircraft in TWA’s facilities at major
American airports and at the central maintenance base in
Kansas City. The Kennedy Space Center employees of
TWA were a small minority of the employees in TWA’s
national “system.”
Throughout the rest of the TWA system, employees
represented by IAM accrued “system seniority” since at
least 1960. Generally, system seniority recognizes seniority
rights which accrue from the date of entering a job classi-
fication on a regular assignment. Employees in a given
job classification are ranked on a national system seniority
roster based upon their length of time in the classification,
regardless of the TWA location at which they work. An
employee with greater system seniority who faces furlough
(layoff) may displace an employee with lesser seniority
5. (Cont'd. )
below along with IAM District Lodge 142 (the subordinate national
body of the International, representing TWA and Ozark Airlines
employees). The Local Lodges represent employees at each opera-
tion in each city; defendant Local 1776 in Philadelphia represents
TWA employees at the station from which appellant Deboles was
laid off; Local 773 was the Kennedy Space Center Lodge. Unless
otherwise indicated, “IAM” will hereinafter refer to the Inter-
national and the District Lodge collectively.
te dmibe AC Wes > picts be ES —
- ma Seed Nl Dl itn cn tl a a OR i A a in ha De telat rte Cia AR, BO. . NG aN oe
Pitti uns ee ee en ee eae
Court of Appeals Opinion A31
in the same job classification anywhere in the TWA sys-
tem. An employee with greater seniority has the right to
a “preference bid” for transfer to other jobs in the same
classification where vacancies exist.
The group of TWA employees at Kennedy Space Cen-
ter were treated differently. Under the TWA-IAM sup-
plemental agreement of 1964 (as extended in 1966), these
employees did not enjoy the benefit of system seniority.
The appellants accordingly did not accrue system seniority
credit for their period of employment at the Space Center
prior to January 28, 1970, at which time a new collective
bargaining agreement was reached between IAM and
TWA. The 1970 agreement provided that the Space Cen-
ter employees would enjoy system seniority but on a non-
retroactive basis. Appellants assert that the disregarding
of their pre-1970 period of employment at the Space Cen-
ter resulted in a situation whereby other system employees
with less time in the company but greater system seniority
received preference in the bidding for available positions
throughout the TWA system.® The appellant employees
allege that the denial of system seniority was designed to
protect employees hired at other locations from the exer-
cise of seniority rights by the Space Center employees.
The appellants were themselves protected, however,
by provisions of the supplemental agreement which pre-
6. The disadvantage of lack of pre-1970 system seniority is
illustrated by the work history of appellant Deboles. He had been
hired at the Space Center in Feary, 1968, but under the 1970
contract he accrued seniority only ©» periods of work after January,
1970. He voluntarily transferred to the TWA station in Los Angeles
in May, 1970, and worked as a stores clerk there for a year. He
was displaced to the Philadelphia station and worked for several
months until he was laid off. His position was held by an employee
who entered the stores clerk classification later than February, 1968,
but before Deboles’ seniority date of January, 1970. Deboles con-
tinues in furlough status.
A32 Court of Appeals Opinion
vented senior system employees from “bumping” Space
Center employees. A newly-hired Space Center employee
was thus free from concern for losing his or her job to a
non-Space Center person with greater seniority. A per-
son who transferred to the Space Center from elsewhere in
the TWA system was placed at the pottom of the Space
Center seniority list, although system seniority credit ac-
crued to such an employee in the event of his transfer
back to the system.’ To further discourage transfers to
the Space Center, the supplemental agreement required
any system employee who was accepted at the Space
Center to remain for at least one year prior to bidding
back into the system.
During the growth of the national space effort in the
1960's, promotions occurred significantly more rapidly for
Space Center employees than for their counterparts else-
where in the TWA system.* The employees already at the
Space Center filled the promotion slots, since they were
protected from “bidding in” by others elsewhere in the
7. The 1966 modification of the supplemental agreement made
changes favorable to the appellant-employees. Workers hired origi-
nally at the Space Center could bid for vacancies on the system
after one year on a “preference” basis, that is, without displacement
rights but with preference over new hires at a system station. A
worker transferring to the Space Center, on the other hand, could
not enjoy re-transfer privileges back to the system in any job classi-
fication to which he or she had been promoted while at Space
Center.
8. After TWA operations at the Space Center commenced on
April 1, 1964, employment grew from 300 to about 2,000, of which
70% were represented by the IAM. During the nearly 7 years of
TWA operations, only 60 to 90 employees transferred ate the sys-
tem to the Space Center. Higher classifications and lead position
slots abounded at the Space Center, where employees reached posi-
tions customarily in a few months which would have taken years to
achieve in the system. For example, in the regular system it took
about 8 years for an employee to advance from stores clerk to the
position of mechanic, while from 1964-1970, Space Center stores
clerks made the same jump in an average of 7 months.
basi
ee ee Se ee eee kG ee ae
Pita ites 2e Neds nent Cao 2 rede art a, Omi
Court of Appeals Opinion A33
system; layoffs were rare at the Space Center, in contrast
to the regular TWA stations.°
The district court found that in 1964 TWA opposed
transfers to and from the Space Center because of its con-
cern for a stable work force in the space program. TWA
was found to be concerned about “snowbird” transfers
(i.e., system employees who would use higher seniority
rights to transfer to the Space Center in Florida in the
winter and return to their regular post in the TWA sys-
tem in the summers). The meshing of skills between the
space-oriented employees in Florida and the TWA air-
craft workers elsewhere was also a concern. The problems
of “snowbirds” and meshing of skills were thus minimized,
and a more stable work force was made possible by erect-
ing a seniority barrier between Space Center employees
and those in the TWA system.
The appellants urge that the reason for the different
treatment for the Space Center was not TWA’s desire for
a stable werk force, as the court below found, but was in-
stead IAM’s desire to protect its own members elsewhere
in the system from the risk of being bumped from their
positions in the event of termination of TWA’s contract
with NASA at the Space Center. Some support for this
assertion is found in the direct testimony of TWA’s Calvin
Filson, negotiator of the 1964 supplemental agreement,
and also in a 1964 letter by TWA’s J. J. Manning, man-
ager of labor relations at the Space Center.*® The denial
9. Seasonal layoffs were customary in the TWA system, but
because of protection from incoming transfers the Space Center
employees enjoyed stability and growth unknown elsewhere in the
system. Many employees at the Space Center worked uninter-
ruptedly during most of the pre-1970 period, while their more senior
counterparts elsewhere in the system were on layoff. The first layoff
at the Space Center did not occur until August, 1969.
10. Filson’s testimony (App. 167a-168a) and Manning’s 1964
letter to the general chairman of District Lodge 142 (App. 1535a)
A34 Court of Appeals Opinion
of system seniority to Space Center employees was, how-
ever, only one part of a package of special job stability
10. (Cont'd. )
indicated their belief that Section 5(b) of the 1964 supplemental
agreement (restricting system seniority rights but allowing for a
preference for furloughed Space Center employees over new hires
at system stations) “was primarily addressed to a furlough of em-
ployees in the event of termination of TWA’s [contract] with
NASA.” The district court apparently gave little weight to Filson’s
testimony in view of Filson’s admittedly oe memory of the events
of 1964 (see, e.g., App. 168a-171la, 198a-199a, 207a-208a).
Section 5(b) of the supplemental agreement reads as follows
(App. 1483a):
New employees hired for the [Space Center] operation, who do
not have seniority rights at another point, shall not be listed on
the system seniority roster and shall not be permitted bid or
displacement rig! ts elsewhere on the TWA system. In the
event of furlough, such employees shall, however, be permitted
to file a Request for Consideration form for vacancies on the
TWA system which are not filled by employees listed on the
TWA-IAM system seniority roster. These requests may be filed
at any time and withdrawn at any time prior to the opening of
a vacancy, and shall automatically expire on January 1 and
July 1 of each year. When the furloughed employee is selected
for a vacancy, the Company shall notify him only at the last
address filed with the Company, and he must report on the
date specified, unless an extension of time is mutually agreed
to. Any furloughed employee who does not file or renew a
Request for Consideration, or who fails to accept a position re-
quested, shall have his name removed from the [Space Center]
——— seniority roster. An employee filling a vacancy under
this will not receive credit for previous seniority
accrual.
That Section 5(b) may have been “primarily addressed” to furlough
procedures does not compel the conclusion that the overall policy
of restricting employee movement to and from the Space Center
was at the behest of concerned system employees. Although part
of Section 5(b) restricts seniority upon transfer from the Space
Center, its motivation cannot be assessed in a vacuum. Elsewhere
in the supplemental agreement it is clear that TWA could refuse an
application for transfer to the Space Center “for operational rea-
sons” (Section 4(b), App. 1483a), unlike voluntary transfers or
promotions between stations on the TWA system which were gen-
erally granted as a matter of seniority alone. (See Art. VI of main
collective bargaining agreement, App. 1472a-1479a). TWA’s opera-
tional concerns were thus evidenced in the supplemental contract
itself, as well as in the negotiations which produced the contract
(see note 11 infra).
eee
Court of Appeals Opinion A35
provisions, described above, many of which benefited the
appellants to the detriment of their system counterparts.
Ample evidence supports the district court’s finding that
TWA’s desire for a stable work force was the dominant
motivation for the 1964 distinctions."
II.
The district court found that members of Local 773
(Space Center) favored elimination of system seniority
restrictions from the supplemental agreement prior to the
1966 negotiations, and that officials of the IAM made sev-
eral misstatements from 1966 to 1970 regarding the IAM’s
efforts and enthusiasm in attempting but failing to achieve
this gain.
The first misstatements occurred after the 1966
negotiations failed to produce for the appellants the de-
11. Testimony by Mr. Filson ( App. 239a-243a) detailed TWA’s
fears of disruption by employment swings if employment at the
Space Center operation were fully integrated with the rest of the
TWA system. Problems of seasonal system layoffs, the prospect of
temporary mass migration of aircraft line station employees to the
Space Center, and the difficulty of meshing work skills between the
aircraft-oriented system and the missile-lauching operations were
company concerns articulated by TWA during the 1966 negotia-
tions. See App. 1533a-1534a (minutes of 1964 negotiations) and
App. 132a-133a, 139a-140a (deposition testimony of D. C. Crombie,
} Nake vice president for industrial relations). According to Mr.
rombie:
Our [TWA’s] objective was to provide a certain segregation of
the [Space Center] work group because we felt that the job of
putting together a work force down there from the beginning
and rising rapidly to 1500, 2000 people, was quite a difficult job
under the time stringencies of the agreement . . . with the
Government.
We wanted to have assurances that those people would be a
relatively stable group of people when we got them on and
when they became experienced they oul stay and they
wouldn't be fleeing to Kansas City and Los Angeles... . I
am talking now in terms of company objectives.
App. 139a-140a.
A36 Court of Appeals Opinion
sired abolition of seniority restrictions. Employees at the
Space Center, acting through Local 773, had submitted
such a proposal to the District Lodge 142 (national) bar-
gaining committee.
When the 1966 negotiations reached an impasse,
Space Center employees, along with their TWA counter-
parts throughout the system, went on strike. IAM officials
William J. Usery (a representative of the International,
later U. S. Secretary of Labor), and Carl Gordon ( District
Lodge 142 assistant chairman) urged members of Local
773 to return to work to avert the danger of binding arbi-
tration legislation then pending in a Congress concerned
with delay in the space program. The district court found
that Usery and Gordon also assured the Local 773 nego-
tiators that the IAM was vigorously proposing to extend
system seniority to Space Center workers at the ongoing
national negotiations. The evidence also showed that
Gordon and Usery said that there would be no difficulty
in removing these restrictions. The Local 773 members
returned to work under a tentative agreement, applicable
only to the Space Center, which did not include retroactive
system seniority rights. The national IAM-TWA agree-
ment, reached four weeks later, did not eliminate the sys-
tem seniority restrictions.
The assurances to Local 773 indicating IAM’s expec-
tation of success in negotiations, as well as a later statement
by Gordon advising Local 773 that the District Lodge had
done the best it could but that TWA had attached un-
acceptable strings to the proposal, were found to be mis-
statements constituting bad faith, inasmuch as the proposal
had in fact scarcely been discussed with TWA.
The appellant urges that members of Local 773 re-
turned to work and ratified the supplemental and national
agreements in reliance upon the IAM’s misstatements. The
district court, however, did not so find, and the testimony
,
|
:
0 et ee Oee
Cie, em
Court of Appeals Opinion A37
of Local 773 negotiator M. J. Reilly,’* cited by appellant,
does not support the assertion of detrimental reliance.
There was evidence that the Space Center employees re-
turned to work in 1966 because the avoidance of legislation
compelling arbitration was of paramount importance to
both the IAM and Local 773.%% The evidence does not
demonstrate that members of Local 773, had they been told
the truth in 1966 that their union would not press for the
proposed seniority rights, would have refused either to end
the strike or to ratify the supplemental and national agree-
ments. Approval of the 1966 contract was recommended
by Local 773’s leadership, and it was ratified by the
merabers.
The second round of alleged misstatements occurred
during the 1969-70 negotiations. The Local 773 members
had submitted a second proposal in 1967, again urging the
IAM District negotiators to demand incorporating the
Space Center employees into the TWA system with retro-
active seniority. In the November, 1968, exchange of pro-
posals, the District Lodge and TWA both favored retro-
active system seniority. In May, 1969, Mr. Gordon
reported that the Space Center seniority issue was “very
close to settlement” but cautioned that “[a]ny full report
at this time might vary from the final draft.”'* Follow-
ing receipt by the IAM negotiators of a written TWA
proposal to grant retroactive system seniority, two officials
of District Lodge 142 (Barker and Fowler) reported to
the membership of Local 773 that a retroactive system
seniority agreement had been negotiated.
12. App. 493a-501a.
13. App. 494a-495a.
14. See App. 1634a-1635a, 512a-513a, 70la-702a. Mr. Gordon
was the chief negotiator for IAM in the discussions leading to the
1970 contract.
A38 Court of Appeals Opinion
In August, 1969, the situation changed when the
Space Center suffered its first layoffs after five years of
rapid growth. The district court found that opposition to
Space Center seniority grew within the IAM; petitions
were circulated throughout the TWA system by members
of Local 1650 in Kansas City, which had the largest
membership of any IAM local lodge, with 40 per cent of
the District's membership. The intra-union opposition
stemmed from the fear of system employees that, in view
of the imminent reductions in force at the Space Center, a
retroactive grant of system seniority would result in fur-
loughed Space Center workers bumping others with lesser
seniority throughout the system. Local 773 at the Space
Center, aware of this opposition, sent letters and telegrams
urging support for retroactive system seniority.”
The negotiating committee of District Lodge 142,
sensing the growing opposition to system seniority within
the union, voted to remove its own proposal in late Novem-
ber because the committee decided that a contract with
such a provision might not be ratified. The members of
Local 773 were not advised of this decision; instead, IAM
officials advised them that TWA was attaching a no-strike
agreement to this proposal. Meanwhile, a TWA official
advised several officers of Local 773 that TWA did not
oppose the proposal.”*
15. Petitions opposing retroactive seniority bearing some 2,900
signatures were submitted to the IAM leadership by TWA em-
ployees at Kansas City, New York and Los Angeles. In response
to the petitions, a member of the District Lodge negotiating team
went to New York and Kansas City and reported back that a con-
tract providing retroactive system seniority for the Space Center
would not be ratified due to heavy opposition.
16. Whether TWA actually offered any ee to the pro-
posal by attaching “strings” is unclear. The district court found
that the “primary reason” that retroactive system seniority was not
achieved was “the fear and the risk that the contract would not be
ratified because of opposition by TWA workers at other system loca-
_ — ee
baa Gia Be
Court of Appeals Opinion A39
The final agreement implicitly rejected retroactive
sysiem seniority for the Space Center employees, and it
included a provision for accrual of prospective seniority
only, as suggested by James Fowler, assistant chairman of
District Lodge 142. All TWA employees initially hired at
the Space Center began to accrue system seniority as of
the date of the contract, January 28, 1970, and received no
credit for prior working years at the Space Center in the
event of transfer to a station on the system.
This contract required ratification by a majority of the
entire IAM union membership emz!oyed by TWA. Two
ratification meetings were held for the Space Center
workers of Local 773. Mr. Fowler met first with the execu-
tive board of Local 773, and then with the entire Local
773 membership, and to both groups he repeated the ad-
mittedly false statement that the union had done every-
thing in its power to obtain retroactive system seniority,
but that TWA had attached unacceptable conditions to
the proposal.
The 1970 contract was found to have been advan-
tageous to the union with beneficial pension and wage im-
provements and a revamped procedure for grievances and
arbitration. The Local 773 membership ratified the con-
tract, despite knowledge of the lack of a favorable system
16. (Cont'd.)
tions” (App. 1393a). TWA was found to have “included such a
proposal in the early negotiations and ai no time strongly’ opposed
such a provision” (App. 1402a). The union points out that TWA’s
negotiator was still asking for a no-strike requirement for the Space
Center as late as January 12, 1970 (App. 116la, 1204a-1205a), the
day before final sign-off by the International and TWA. Nonethe-
less, ample evidence supports the district court's finding that IAM
otiators withdrew their proposal for retroactive system seniority
and that only the proposal for prospective seniority, as suggested
by Fowler of the District Lodge, received seudibeation by the
negotiators during the weeks prior to final agreement in January,
1970.
A40 Court of Appeals Opinion
seniority provision, by a vote of 714-69, and nationally the
contract was ratified by an overwhelming margin. There
is no evidence that the voting outcome would have been
different had the members been told the truth about the
union leadership’s unwillingness to achieve retroactive
system seniority. Based on the total national vote, even
if all Space Center voting members had voted “no,” the
contract would still have been ratified by a national margin
of almost 3 to 1.
Finally, the trial judge found that there was no evi-
dence of TWA’s participation in the misleading and in-
complete communications from the IAM to Local 773.
Il.
We first consider whether the IAM breached its duty
of fair representation by favoring and entering into an
agreement with TWA which provided Space Center em-
ployees with seniority rights different from those held by
all other members of the union.
The origin of the doctrine of the duty of fair represen-
tation rests in the landmark case of Steele v. Louisville &
Nashville R. R. Co., 323 U.S. 192 (1944), which held that
a union certified under the Railway Labor Act”™ to rep-
resent all employees of a collective bargaining unit may not
enter into a collective bargaining agreement which favors
white union members at the expense of black non-member
employees in the bargaining unit. The Supreme Court
found that the Railway Labor Act requires “that the or-
ganization chosen to represent a craft is to represent all its
members, the majority as well as the minority, and it is to
act for and not against those whom it represents.” Id.
17. As in Steele v. Louisville & Nashville R. R. Co., supra, the
union herein was the certified bargaining representative under § 2
1970). of the Railway Labor Act, 45 U. S. C. § 152 (Fourth)
1970).
Court of Appeals Opinion A4l
202. The Court went on t., state that this duty does not
mean that a union cannot make contracts which unfavor-
ably affect some members, but those variations must be
“relevant to the authorized purposes of the contract in
conditions to which they are to be applied... .” Id. 203.
In finding that union discrimination based upon race in a
collective bargaining agreement is impermissible, the Court
concluded:
[I]t is enough for present purposes to say that the
statutory power to represent a craft and to make con-
tracts . . . does not include the authority to make
among members of the craft discriminations not based
on such relevant differences. Id.
The early cases focused upon racial distinctions in the
railroad industry,* but the duty was soon applied to cases
of non-racial discrimination and to industries reached by
the National Labor Relations Act."* It is clear that a union
which is the exclusive bargaining agent has a federally-
created statutory duty to fairly represent all members of
the bargaining unit in the negotiation, administration and
enforcement of the collective bargaining agreement.*°
18. Tunstall v. Brotherhood of Locomotive Firemen & Engine-
men, 323 U. S. 210 (1944); Graham v. Brotherhood of Locomotive
Firemen & Enginemen, 338 VU. S. 232 (1949).
19. See Ford Motor Co. v. Huffman, 345 U. S. 330 (1953);
Syres v. Oil Workers International Union, 350 U. S. 892 (1955).
20. The development of this important labor law doctrine has
been chronicled elsewhere and need not be repeated here. See
Hines v. Anchor Motor Freight, Inc., 424 U. S. 554, 563-567 (1976);
Vaca v. Sipes, 386 U. S. 171, 177-188 (1967); Humphrey v. Moore,
375 U. S. 335, 342 (1964); Bazarte v. United Transp. Union, 429 F.
2d 868, 871-872 (3d Cir. 1970); Brady v. TWA, Inc., 401 F. 2d 87,
94 (3d Cir. 1968), cert. denied sub nom. IAM v. Brady, 393 U. S.
1048 (1969); see also Clark, The Duty of Fair Representation: A
Theoretical Structure, 51 Texas L. Rev. 1119 (1973); Cox, The
Duty of Fair Representation, 2 Vill. L. Rev., 151 (1957).
A42 Court of Appeals Opinion
The requirements of fair representation were summarized
by the Supreme Court in Vaca v. Sipes, 386 U. S. 171, 177
( 1967 ):
Under this doctrine, the exclusive agent’s statutory
authority to represent all members of a designated
unit includes a statutory obligation to serve the inter-
ests of all members without hostility or discrimination
toward any, to exercise its discretion with complete
good faith and honesty, and to avoid arbitrary con-
duct.
The case law indicates that seniority differences and
seniority adjustments among employee groups governed
by a single contract are within the union’s discretion and
judgment, so long as the seniority disadvantage is not the
result of arbitrary reasons unrelated to relevant differ-
ences. Thus, seniority differences disadvantageous to a
scgment of a collective bargaining unit have been upheld
in, e.g., Ford Motor Co. v. Huffman, 345 VU. S. 330 (1953);
Humphrey v. Moore, 375 U. S. 335 (1964); Price v. Inter-
national Brotherhood of Teamsters, 457 F. 2d 605 (3d Cir.
1972); and Bruen v. Electrical Workers Local 492, 425
F. 2d 190 (3d Cir. 1970), where the distinctions were
found to fall within the range of reasonableness which gov-
erns the union’s fiduciary responsibility to its members.”
In Ford Motor Co. v. Huffman, supra, seniority dis-
tinctions in favor of previously-employed veterans return-
21. Other cases finding non-arbitrary reasons for pag Kn
tinctions based on relevant differences include: NLRB v. Whitin
Milk Corp., 342 F. 2d 8 (1st Cir. 1965); Hiatt v. New York Centra
R. R., 444 F. 2d 1397 (7th Cir. 1971); vi: 4 v. Brotherhood
of Locomotive Engineers, 510 F. 2d 853 (8th Cir. 1975); Laturner
v. Burlington Northern, Inc., 501 F. 2d 593 (9th Cir. 1974), cert.
denied, 419 U. S. 1109 (1975); Northeast Master Executive Council
v. CAB, 506 F. 2d 97 (D. C. Cir. 1974), cert. denied, 419 U. S. 1110
(1975).
Court of Appeals Opinion A43
ing from war were found to be valid since the collective
bargaining agreement could reasonably reward employees
who had been called away from their jobs in wartime to
perform services in the national interest. “Inevitably,”
according to the Supreme Court, “differences arise in the
manner and degree to which the terms of any negotiated
agreement affect individual employees and classes of em-
ployees. . . . A wide range of reasonableness must be
allowed” to the union, “subject always to complete good
faith and honesty of purpose in the exercise of its dis-
cretion.” 345 U.S. at 338.
Likewise, in the context of a consolidation of the
operations of two companies, the union representing the
relevant employee units at both companies could validly
favor a meshing of seniority to establish a master list, even
though the combined seniority system disadvantaged the
union members who had been employed by the younger of
the two consolidated companies. Humphrey v. Moore,
supra. This dovetailing of seniority lists was found to be
“neither unique or arbitrary. On the contrary, it is a
familiar and frequently equitable solution to the inevitably
conflicting interests which arise in the wake of a merger
or an absorption. . . .” 375 U.S. at 347. In such a case
of inevitable conflict, the union must be free to take a
stand, even if that position is contrary to the interests of a
group of members. 375 U. S. at 349-350. It is “inevi-
table” that the absorption, merger or elimination of one
enterprise by another will hurt some employees to the ex-
tent that fewer total jobs are available.
This court's decision in Price v. International Brother-
hood of Teamsters, supra, recognized the wide latitude to
be accorded to the decision to dovetail seniority lists where
a company decides to close down one of its operations.
The joint list included employees of a closed trucking ter-
A44 Court of Appeals Opinion
minal, to the disadvantage of system employees with lesser
seniority. This arrangement was held not to be arbitrarily
discriminatory either against the jwnior system employees
who were subsequently “bumped’/ or against several em-
ployees of the closed terminal who had previously trans-
ferred to the system with no seniority under an earlier
agreement. The Price decision. however, depended also
upon a factor not present here; namely, that the decision
was reached by a joint grievance committee, the equivalent
of arbitrators under the contract. Congressional policies
favoring arbitration abor disputes dictate that such a
decision will not ' yverturned unless it is “dishonest,
capricious, or beyond its authority under the collective
bargaining agreement.” Price v. International Brother-
hood of Teamsters, supra, 457 F. 2d at 611. The union
committee’s duty was discharged when it gave the con-
tending sides an opportunity to make their case and then
made a decision honestly and impartially. Id.
The instant case presents a closer question than ex-
isted in Price because the dispute arises from a negotiated
agreement rather than an arbitrator’s decision. Further-
more, unlike the dovetailing cases discussed supra, this
case involves a separate seniority roster for the Space
Center with endtailing of seniority upon transfer to the
system prior to the 1970 contract and limited dovetailing
based upon the artificial Space Center seniority date
thereafter.
Nonetheless, this court is persuaded, as was the court
below, that the seniority distinctions in the instant case
fall within the zone of reasonableness by which a union’s
conduct must be measured. As discussed above, a certi-
fied bargaining agent offends the duty of fair representa-
tion if it enters a collective bargaining agr-ement which
makes arbitrary distinctions between classes of employees
Court of Appeals Opinion A45
within the appropriate unit which are not based on rele-
vant differences between the emplovees or operations.
The district court found that the policy of denying
system seniority benefits to Space Center members of IAM
was a seniority distinction based upon recognition of rel-
evant differences betwen the Space Center operation and
the rest of the TWA system. It then found that the 1964
supplemental agreement reflected TWA’s desire to mini-
mize movement between the Space Center and the system
in order to achieve a stable work force. These factual con-
clusions are not clearly erroneous, and therefore they are
accepted by this reviewing court.
TWA’s desire for a stable work force was based upon
TWA’s sufficiently reasonable belief that differences in
skills and the prospects of “snowbird” transfers between
the system and TWA would disrupt operations both at the
Space Center and throughout the airline system, unless
transfers were curtailed. The motivation for the separa-
tion was not arbitrary.
Furthermore, that reciprocal barriers were erected as
part of TWA’s separation policy in order to discourage
system employees from transferring to the Space Center
also demonstrates the reasonableness of the seniority dis-
tinctions. The lack of system seniority was hardly arbi-
trarily disadvantageous to the Space Center employees
who were simultaneously protected from being “bumped”
by senior system employees; the Space Center employees
carried no more than a fair and reasonable share of the
burden of the TWA separation policy.
The appellants argue that the seniority distinction in
the instant case is indistinguishable from a discriminatory
provision of the contract between TWA and IAM which
was found by the Second Circuit to be invalid in Jones v.
Trans World Airlines, Inc., 495 F. 2d 790 (2d Cir. 1974).
A46 Court of Appeals Opinion
In Jones, the IAM and TWA agreed that certain non-union
Passenger Relations Agents at Kennedy Airport in New
York would henceforth be included in the unionized
“Guards” classification, since both groups performed sim-
ilar duties. The Passenger Relations Agents were sub-
sumed into the Guards category, but they were given end-
tail seniority at the bottom of the Guards list regardless
of prior length of employment with TWA. The Second
Circuit held that the non-union Passenger Relations Agents
were de facto members of the represented Guard unit for
negotiating purposes leading to the 1970 contract, and as
such they were entitled to seniority rights under the exist-
ing 1966 contract which could not be taken away discrim-
inatorily by the union’s bargaining team in the 1970 con-
tract negotiations. 495 F. 2d at 797. The court found
that the only factor distinguishing the favored Guards
from the disfavored former Passenger Relations Agents
was the fact of prior non-membership in the union. Where
the two groups performed almost identical duties prior to
1970, non-membership was an arbitrary distinction which
was impermissible under the union’s duty of fair rep-
resentation to all members of the bargaining unit.
Jones thus stands for the limited and undisputed
proposition that discrimination against non-member em-
ployees who are part of the bargaining unit is impermis-
sibly arbitrary if no relevant distinctions exist between the
union and non-union employees. The court held, 495 F.
2d at 797, that “[dl]iscrimination in seniority based on
nothing else but union membership is arbitrary and in-
vidious and violates the union’s duty to represent fairly all
members of the bargaining unit.” It emphasized that
“we do not suggest that a union has a duty to dovetail
seniority when consolidating two groups of employees. . . .
We hold only that union membership was not a proper
Court of Appeals Opinion A47
ground for determining seniority.”** Thus, the Second
Circuit’s decision can give little support to the position of
the Space Center employees herein, because the distinc-
tions in seniority did not arise from non-membership in
the union but instead were related to meaningful differ-
ences between the Space Center and the airline system
which were reflected in TWA’s policy of discouraging
transfers. 495 F. 2d at 798.
Similarly, the instant action does not involve a union
attempt to reduce or cancel seniority benefits already con-
ferred upon a minority in a pre-existing agreement. See
Barton Brands, Ltd. v. NLRB, 529 F. 2d 793, 800 (7th
Cir. 1976); Hargrove v. Brotherhood of Locomotive En-
gineers, 116 F. Supp. 3 (D. D. C. 1953). The courts in
such cases have held that the union breaches its duty of
fair representation to the minority unless it can demon-
strate “some objective justification for its conduct” to
render such discrimination non-arbitrary.** The 1966 and
1970 agreements herein did not deprive the employees of
any accrued seniority benefit.
22. Jones v. TWA, Inc., supra, is part of a well-established line
of fair representation cases which have determined that discrimina-
tion based upon non-membership in the union is unreasonable and
arbitrary. See Steele v. Louisville & Nashville R. R., 323 U.S. 192
(1944) (involved discrimination against Negroes who were non-
members of the union); Radio Officers’ Union v. NLRB, 347 U. S.
17, 46-48 Apt (concerned wage discrimination against non-
members of representative union); see generally Clark, The Duty
of Fair Representation: A Theoretical Structure, 51 Texas L. Rev.
1119 (1973).
23. Barton Brands, Ltd. v. NLRB, supra, 529 F. 2d at 800. End-
tail seniority has been upheld in numerous cases where the endtail-
ing was not arbitrarily discriminatory, such as in consolidations
where it is held not unreasonable to endtail the employees of the
newly a quired or defunct operations. See, e.g., NLRB v. Whiting
Milk Corp., 342 F. 2d 8 (1st Cir. 1965); Morris v. Werner-Conti-
nental, Inc., 466 F. 2d 1185 (6th Cir. 1972), cert. denied, 411 UV. S.
965 (1973); Schick v. NLRB, 409 F. 2d 395 (7th Cir. 1969).
A48 Court of Appeals Opinion
The achievement of prospective system seniority in
1970, establishing an artificial 1970 seniority date for em-
ployees wishing to transfer to or from the Space Center,
likewise was not unfairly discriminatory. Undoubtedly,
Space Center employees who transferred into the airline
system after 1970 have suffered layoffs due to their
artificially low system seniority, which would not have oc-
curred if the 1970 agreement had instead reckoned system
seniority retroactively from the date of entry into the em-
ployee’s relevant job classification. In effect, the Space
Center employees were required by the pre-1970 provi-
sions to forego system seniority accrual in return for job
security at the Space Center by means of protection from
incoming transfers. This protection was hardly false or
illusory. We cannot say that the 1970 agreement’s failure
to provide Space Center employees with retroactive sys-
tem credit for the periods of work performed while re-
ceiving significant job security benefits was arbitrary, un-
reasonable or invidiously discriminatory.
If, on the other hand, the 1970 agreement had con-
ferred retroactive system seniority upon Space Center em-
ployees, effectively dovetailing the existing seniority lists,
the displaced low seniority system employees who had
endured pre-1970 layoffs and slower promotions might
equally well be heard to complain that the pre-1970 re-
strictions against their transfer to the greener pastures of
the Space Center had unfairly discriminated against low-
seniority system employees without conferring any off-
setting benefit of separation.
Accordingly, we conclude that the district judge did
not err when he found that the plaintiffs failed to demon-
strate that the seniority differences in the 1964, 1966 or
1970 collective bargaining agreements constituted a breach
by their union of the duty of fair representation.
Court of Appeals Opinion A49
IV.
We next consider whether the deliberate misstate-
ments of union officials to employees at the Space Center
violated the union’s duty of fair representation. As framed
by the district court,** the question for review is as follows:
Is a union liable to a segment of its members because
union officials lied to that segment of members con-
cerning the union’s efforts to secure certain seniority
rights, in order to obtain membership ratification of a
negotiated contract, where there is no proof that the
contract would not have been ratified had those mem-
bers been told the full truth?
The district court answered in the affirmative, finding
union liability for the false statements. We reverse be-
cause false statements may not create liability under the
federal labor laws absent a showing of tangible injury
proximately resulting from a falsehood.
Although the question for review focuses upon mis-
statements during the course of the Space Center ratifica-
tion of the 1970 contract, it is clear that the district court
was influenced by what it termed a “web of deceit” by
IAM officials reaching back to 1966. We think that the
IAM’s conduct from 1966 to 1970 must be assessed by the
standard required in the fair representation doctrine be-
cause we recognize that the cumulative effect of falsehoods
over that period of time heightened the importance of the
1970 misstatements immediately prior to the ratification
vote at the Space Center. Even the inclusion of the 1966
24. See Opinion and Order (Jan. 30, 1976) (entering Rule
54(b) final judgment and certification for 28 U. S. C. § 1292(b)
interlocutory appeal), App. 1424a, 1428a.
25. App. 1402a. The district court, after tracing the develop-
ment of fair representation doctrine, recounted the instances of de-
ceitful statements to Space Center employees from 1966 onward, as
discussed herein in Part II, supra.
A50 Court of Appeals Oj:inion
misstatements, however, does not alter the analysis which
follows, inasmuch as the district court did not find thot
the IAM’s 1966 promises caused injury, such as through
detrimental reliance by the members at the Space Center
in returning to work or ratifying the 1966 agreement.
Similarly, the 1970 IAM misstatements placing the onus
of compromise upon TWA, while admittedly false, were
not found to have caused ratification of the contract which
would not otherwise have been ratified had the truth been
told.”
Preliminarily, we reject the IAM’s claim that the duty
of fair representation does not extend to union conduct in
contract ratification voting. Citing the decision in Con-
federated Independent Unions v. Rockwell-Standard Co..,
465 F. 2d 1137 (3d Cir. 1972), the union would foreclose
liability in post-negotiation intra-union balloting. In that
case, the court rejected a claim that federal law affords
employees the right to approve or reject the contract nego-
tiated by the union on their behalf, holding:
The law does not require that a collective bargaining
agreement be submitted to a local union or the union
membership for authorization, negotiation or ratifica-
tion, in the absence of an express requirement in the
agreement, or in the constitution, by-laws or rules and
regulations of the union [citations omitted]. 465
F. 2d at 1140.
26. Although conceding that there is no proof that the IAM’s
misstatements colored the outcome of the vote to ratify the 1970
contract, the one eo assert (in Reply Brief for Appellants at 17-
19) that they nonetheless were damaged because the misstatements
covered up the union’s conduct. Had they known the truth, they
now say, fn might have challenged the union’s original recogni-
tion as bargaining represeniative, or they might have sought sepa-
rate representation. Such speculative, post hoc reasoning does not
suffice to demonstrate concrete injury caused by the misstatements
absent supporting evidence in the record below.
Court of Appeals Opinion A51
The converse, however, is also true: federal law does re-
quire a ratification vote if the union constitution or by-
laws require it. In the instant case, the 1970 ratification
vote was required by the union constitution.” We see no
reason why the fiduciary duty of fair representation, in-
asmuch as it applies to the negotiation, administration and
enforcement of the collective bargaining agreement, should
not be applied with equal force to union conduct in the
ratification process where such ratification is required by
the agreement or by the constitution, by-laws or rules and
regulations of the union.
Although it is clear that a bargaining agent must be
honest and forthright in dealings with its members, and
“as the statutory representative of the employees [it] is
‘subject always to complete good faith and honesty of
purpose in the exercise of its discretion, Ford Motor Co.
v. Huffman, supra, at 338,” Hines v. Anchor Motor Freight,
424 U. S. 554, 565 (1976), the federal courts have consist-
ently required a direct nexus between breach of this duty
and resultant damages to the individual or minority seg-
ment as an element of liability. For example, in Hines v.
Anchor Motor Freight, supra, the Supreme Court found
that an erroneous arbitration decision could not stand,
despite the strong policy of labor law favoring the finality
of arbitration of grievances when so provided in a collec-
tive bargaining agreement, if “the employee's representa-
tion by the union has been dishonest, in bad faith or
discriminatory” so as to “seriously undermine the integ-
rity of the arbitral process.” Id. 561, 567. The union’s
breach of duty must be found to have “contributed to the
erroneous outcome of the contractua! proceedings.” Id.
568.
27. The IAM concedes that, a strike vote having been approved
in 1969, the contract ratification vote was required / Art. VIII, § 4
of the IAM Constitution. Brief for Cross-Appellant Unions at 26
n. 9.
A52 Court of Appeals Opinion
Similarly, in Humphrey v. Moore, supra, a group of
employees alleged inadequate union representation in a
seniority dispute which was submitted to a joint conference
committee for resolution after a hearing. The Supreme
Court rejected this contention because the employees
failed to demonstrate “that the result would have been
different had the matter been differently presented.” 375
U. S. at 350-351.
The decisions of this court, while requiring a union’s
conduct toward its members to adhere to the fiduciary
standards inherent in its position as bargaining agent,
Brady v. Trans World Airlines, Inc., 401 F. 2d 87, 94 (3d
Cir. 1968), cert. denied, 393 U. S. 1048 (1969), have none-
theless implicitly required a demonstration of injury to
the members proximately caused by the breach.”*
Furthermore, numerous labor law decisions limiting
relief only to redress of specific injuries and refusing to
impose punitive sanctions also indicate that liability in the
instant case may not be found in the absence of injury
proximately caused by the misrepresentations. In the
absence of such injury, any remedy against the union
would necessarily be a “punishment” for a harmless lie.
Punitive damages have been consistently rejected in un-
28. For example, in Bieski v. Eastern Automobile Forwarding
Co., 396 F. 2d 32 (3d Cir. 1968), the jurisdictional decision of a
joint union-management committee in a seniority dispute was found
to be arbitrary and unreasonable. This court was persuaded that
the union’s neutrality may have deprived the losing segment of ef-
fective advocacy of their position before the joint committee. Cit-
a v. Moore, supra, 375 U. S. at 351, the court found a
sufficient probability that “the result would have been different had
the matter been differently presented,” 396 F. 2d at 40, thus estab-
lishing the nexus to injury occasioned by the procedure which pro-
duced the erroneous decision.
Similarly, in Brady v. TWA, Inc., supra, 401 F. 2d at 99-100,
the union’s refusal to accept Brady’s past dues and consequent
wrongful expulsion of Brady from the union was found to be the
direct cause of Brady’s loss of employment.
Court of Appeals Judgment A53
fair labor practice cases under the National Labor Rela-
tions Act, see Republic Steel Corp. v. NLRB, 311 U. S. 7,
10-12 (1940); Carpenters Local 60 v. NLRB, 365 U. S.
651, 655 (1961); NLRB wv. United States Steel Corp., 278
F. 2d 896, 900-901 (3d Cir. 1960), cert. denied, 366 U. S.
908 (1961); in actions for recovery of tortious damages
under § 303 of the Labor-Management Relations Act, 29
U. S. C. § 187, Teamsters Local 20 v. Morton, 377 U. S.
252, 260- 261 (1964); and in actions arising under § 301
of the Labor-Management Relations Act, 29 U. S. C. § 185,
United Shoe Workers v. Brooks Shoe Mfg. Co., 298 F. 2d
277 (3d Cir. 1962) (per curiam en banc), in which Chief
Judge Biggs, concurring, found that “it is the general
policy of the federal labor lews, to which the federal courts
are to look for guidance in Section 301 actions, to supply
remedies rather than punishments.” Id. 284.”
There is no indication that the Railway Labor Act
deviates from this general pattern of remedies, at least
with respect to union misconduct. Reballoting is the stat-
utory remedy for instances where a vote has been im-
paired by misconduct of the carrier. Section 2 (Ninth) of
the Railway Labor Act, 42 U.S. C. § 152 (Ninth). Crimi-
nal sanctions are imposed by Section 2 (Tenth) of the
Act upon carriers (and not unions) but only with respect
to willful failure or refusal of a carrier to comply with the
certain of the Act’s duties, such as the duty to refrain from
interference with the organization chosen by the em-
ployees. 42 U.S.C. § 152 (Tenth).
We need not decide whether any circumstances exist
in which a punitive-type remedy on behalf of employees
against a union for union misconduct might be implied
29. See also the much-auoted statement of Judge Learned
Hand who ruled in Western Union Telegraph Co. v. NLRB, 113 F.
2d 992, 997 (2d Cir. 1940) that liability under the labor law must
rest on “proof that ‘the unfair labor menped actually impinged
upon the putative victims and caused them pecuniary age.
A54 Court of Appeals Judgment
under the Railway Labor Act. In the absence of actual
injury occasioned by the union’s wrongful misstatements,
imposing liability in the instant case would be punitive
and discordant with the limited remedies available under
the Act.
In conclusion, we hold that liability for a labor union’s
deceptive conduct in breach of the fiduciary duty of fair
representation arises only if the breach directly causes
damage to an individual or group to whom the duty is
owed. There is no liability in this case where false staie-
ments by union officials concerning the union’s efforts and
bargaining position did not materially affect the result of
the subsequent ratification vote.
V
The judgment of the district court in No. 1369 wil! be
affirmed. The judgment of the district court in No. 1535
will be reversed, and the cause will be remanded for fur-
ther action consistent with this opinion.
Court of Appeals Judgment A55
UNITED STATES COURT OF APPEALS
For THE Tuirp Circuit
Nos. 76-1369 and 76-1535
CHARLES DEBOLES
309 Jefferson Street
Media, Pennsylvania
and
VIRGIL O. GRIFFIS
1400 Manley Road
Walnut Hills
Apt. B-3
West Chester, Pennsylvania
On behalf of themselves as
individuals and on behalf of
all others similarly situated,
Appellants in No. 76-1369
0.
TRANS WORLD AIRLINES, INC.
Philadelphia International Airport
Philadelphia, Pennsylvania
and
INTERNATIONAL ASSOCIATION OF MA-
CHINISTS AND AEROSPACE WORKERS,
AFL-CIO; District Lodge 142, IAMAW, AFL-
CIO; Local Lodge 1776, IAMAW, AFL-CIO
520 Main Street
Darby, Pennsylvania
A56 Court of Appeals Judgment
Charles Deboles, Virgil O. Griffis, Interna-
tional Association of Machinists and Aero-
space Workers, AFL-CIO, International
Association of Machinists and Aerospace
Workers, District Lodge 142 and IAMAW
Local Lodge 1776,
Appellants in No. 76-1535
(D. C. Civil Action No. 71-2945)
On APPEAL FROM THE UNITED STATES Districr Court
For THE EASTERN District OF PENNSYLVANIA
Present: ApAMs and Wels, Circuit Judges and Gerry °*,
District Judge.
° John F. Gerry, United States District Court for the District
of New Jersey, sitting by designation.
JUDGMENT.
This cause came on to be heard on the record from
the United States District Court for the Eastern District
of Pennsylvania and was argued by counsel on November
8, 1976.
On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the said Dis-
trict Court filed January 30, 1976, and appealed at our
No. 76-1369 be, and the same is hereby affirmed. It is
further ordered that the judgment of the said district
court appealed at our No. 76-1535 be, and the same is
hereby reversed and the cause remanded for further action
in accordance with the opinion of this Court.
District Court Final Order and Judgment A57
IN THE
UNITED STATES DISTRICT COURT
For THE EASTERN DistTRICT OF PENNSYLVANIA
Civit Action No. 71-2945
CHARLES DEBOLES, et al.
v.
TRANS WORLD AIRLINES, INC., et al.
FINAL ORDER AND JUDGMENT.
Anp Now, this 19th day of May, 1977, upon the re-
mand of Civil Action No. 71-2945 from the United States
Court of Appeals for the Third Circuit, judgment is hereby
entered in Favor of the defendants, International Associa-
iton of Machinists and Aerospace Workers, AFL-CIO;
District Lodge 142, IAMAW, AFL-CIO; Local Lodge
1776, IAMAW, AFL-CIO and Acarnst the plaintiffs in-
dividually and as a class.
Judgment having heretofore been entered in Favor
of the defendant, Trans World Airlines, Inc., AGArnst the
plaintiffs individually and as a class, Civil Action No.
71-2945 is DisMissED.
By THE COURT:
DonaALD W. VAN ARTSDALEN, J.
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