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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REASONS FOR GRANTING THE WRIT ............-0-00000005: 10

1. The Case Presents Important Questions of Federal

Law Concerning the Duties Owed by Unions to

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2. The Decision Confli *- With the Second Circuit's De-

cision in Jones v. Trans World Airlines, Inc. ....... 14

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APPENDIX:

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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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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-

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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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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