Petition — Air Line Pilots Ass'n v. Pelaez Del Casal

] ene Court, U.S.

‘ E |

80-1695 |, |

ll APR 9 1981

IN THE cage

Supreme Court of the United States

OCTOBER TERM, 1980

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,

. Petitioner,

J. E, PELAEZ DEL CASAL and EASTERN AIR LINES, INC.

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

DANIEL B. EDELMAN

(Counsel of record)

YABLONSKI, BOTH & EDELMAN

1140 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 833-9060

GARY GREEN

Air Line Pilots Association

International

1625 Massachusetts Ave., N.W.

Washington, D.C. 20036

Counsel for Petitioner

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

> «0

QUESTION PRESENTED

Whether the Court of Appeals erred by holding that

the duty of fair representation is violated per se in any

case where a union, which supvlies counsel in grievance

proceedings to members and to non-member agency fee

payors, fails to provide the same service to a non-member

who makes no contributions to its cost.*

* All parties to the proceeding in the United States Court of

Appeals for the Fifth Circuit are listed in the caption of the

case in this Court. Eastern Airlines, a defendant below, is listed

as a respondent pursuant to Rule 19.6.

TABLE OF CONTENTS

OPINION BELOW ...... seoranvanintantenaneniietnstantecheeinissi

FUDEOU EES sctnctminiincmsniunininiinnnaaammaaamen

DEAT SD BO VURIE EID esnscnsinstennstininiienaimammpanonanan

STATEMENT OF THE CASE .000...........ssscscsscsseseoeeees

REASONS FOR GRANTING THE WRIT ..................

THE FURNISHING OF STAFF COUNSEL FOR

ARBITRATION PROCEEDINGS AS AN INCI-

DENT OF UNION MEMBERSHIP TO INDI-

VIDUALS WHO PAY MEMBERSHIP DUES

OR EQUIVALENT SERVICE CHARGES IS A

REASONABLE ALLOCATION OF LIMITED

UNION RESOURCES AND DOES NOT VIO-

LATE THE DUTY OF FAIR REPRESENTA-

TION AS PREVIOUSLY ARTICULATED BY

THIS COURT AND OTHER COURTS OF AP-

RAED sscvinssscnscnieicnuincnstnsininipsiibadiiiiaiiahiggeenaiaamalmatiad

A. The Fifth Circuit’s decision is contrary to de-

cisions of this Court which have defined DFR’s

scope and purpose as the protection of em-

ployment status and have reserved broad dis-

cretion to the union in the exercise of its ex-

clusive representative authority. .........................

B. The Fifth Circuit’s decision conflicts with de-

cisions of other courts of appeals holding that

unions may distinguish between members and

non-members in the conferral of internal union

benefits and with decisions holding that DFR

does not require the union to furnish the griev-

ant with counsel ....................cccseccccceceeeseeccenceeeeees

CRON sscnsicesnnnnastinnenosiintmipnissiascinicianinabitinnhiantieniimnin

(iii)

13

iv

TABLE OF AUTHORITIES

Cases Page

Allied Chemical Workers Vv. Pittsburgh Plate Glass

Cs Ge Cee ee CED vettettieietinen 6

Archer v. Air Line Pilots Ass’n, 609 F.2d 934

(C.A. 9, 1979), cert. denied, 100 S.Ct. 2920.... 6

Cleveland Orchestra Committee v. Musicians, Lo-

cal 4, 808 F.2d 229 (C.A. 6, 1962) ............... , 10

Czosek Vv. O’Mara, 397 U.S. 25 (1970) .................... |

D’Elia v. N.Y., N.H. & H.R.R. Co., 230 F.Supp.

912 (D. Conn., 1964), aff'd 338 F.2d 701 (C.A.

2, 1964), cert. denied, 380 U.S. 978 .................... 10

Ford Motor Co. v. Huffman, 345 U.S. 330 ( 1953). 5, 6,

7,9,13

Golden v. Local 55, Firefighters, —— F.2d ——,

24 FEP Cases, 1340, 1842 (C.A. 9, 1980) ......... 10

Grovner V. Georgia-Pacific Corp., 625 F.2d 1289

i: ls, SNIPER: -ccsceensidisch secchactacsinibsatncntesibeeancopseapliceeenengin 10

Hines v. Anchor Motor Freight, 424 U.S. 554

UIE: seceussnesdinoslansanesnksnsiacheeshatinsibesidapiiaaltniiidiadanceaniicads 6, 7,9, 138

Hughes Tool Co. v. NLRB, 147 F.2d 69 (C.A. 5,

SII sidardcaideiaonselinsteschaciiiealiaescouidinnciatatindiatiaslicmicabuditeeons 7

Humphrey V. Moore, 375 U.S. 335 (1964) ............ 6

Int’l Assn. of Machinists v. Street, 367 U.S. 740

SOUIIIIEE > <i nisssschcnencadstencanbacioalababapsmesusempenpiianuianeonbscopmulnaeotin 8

Int'l Bhd. of Electrical Workers v. Foust, 442 U.S.

BE CUTIE: ‘dianiesbatisicedbtnienisasabacspcclamatninnianatantsiaces 6,7,9

Kuhn v. Nat. ‘Ass’ n of Letter Carriers, 528 F.2d

Be te ee I acces biiedernneeiiseascianteeacetctenientonnipene 6

Local 138, Operating Engineers v. NLRB, 321

ge Re | ee 10

Moynahan Vv. Pari-Mutuel Employees Guild, 317

Be een 9

National Labor Relations Board v. Allis-Chalmers

Pe Se Sef Re IN 9

NLRE v. Automobile Workers, 222 F.2d 95 (C.A.

i; FINI shui hdtv alten adeaiuinaaaaidapiabvadidenaloeaientons 10

NLRB v. General Motors Corp., 373 U.S. 734

REE. scacesciitgtnsaeadiniesanesielienietininedbalensibaentenialinkutinnten 10,11

Radio Officers’ Union v. NLRB, 347 U.S. 17

(1954) 8

v

TABLE OF AUTHORITIES—Continued

Page

Railway Emp. Dept. v. Hanson, 351 U.S. 225

IIE’ shetercicssasttanbinice nic tebceinlelDibseeslaednitiicalaadaaniseannbibinasen 3

Steele v. Louisville & Nashville R. Co., 323 U.S. 192

ND iit ina miiabiiheaeanteael (ie dicidamies. ew

Vaca v. Sipes, 386 U.S. 171 (1967) ................ 6, 7, 9,18

Werk v. Armco Steel Corp., -—— F.Supp. ——, 92

LRRM 38898 (S.D. Ohio, 1976) ......................00-22. 10

Statutes

EN I id ashes cern cdasnbahiagtaghaninianaananiin’ 1

45 U.S.C. 152 soles diaeieiaiteedauielasiisa 2

I i cs ih aces nck og platebpasth einen 3

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No.

Air LINE PILOTS ASSOCIATION, INTERNATIONAL,

. Petitioner,

J. E. PALAEZ DEL CASAL and EASTERN AIR LINES, INC.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OPINION BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit is reported at 634 F.2d 295 and

is an Appendix to this Petition (1a, et seq.)

JURISDICTION

The decision of the United States Court of Appeals

for the Fifth Circuit was entered on January 16, 1981.

A timely petition for rehearing en bane was denied on

February 18, 1981 (16a). By Order of March 11, 1981,

the Court of Appeals stayed issuance of its mandate to

and including April 10, 1981 to allow filing of a petition

for writ of certiorari (18a). The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

2

STATUTES INVOLVED

The duty of fair representation arises from a union’s

exclusive representational status under § 2 Fourth of the

Railway Labor Act, 45 U.S.C. 152 Fourth, which pro-

vides in pertinent part as follows:

“Employees shall have the right to organize and bar-

gain collectively through representatives of their own

choosing. The majority of any craft or class of em-

ployees shall have the right to determine who shall

be the representative of the craft or class for the

purposes of this chapter. .. .”

STATEMENT OF THE CASE

Petitioner Air Line Pilots Association (ALPA) is the

exclusive bargaining representative of air line pilots em-

ployed by Eastern Airlines, Inc. Respondent Del Casal

was employed, through the time of his discharge, by

Eastern under a collective bargaining agreement between

ALPA and Eastern. That agreement did not include a

union security provision and Del Casal was not a dues-

paying ALPA member; nor did he pay equivalent agency

fees for ALPA’s bargaining services.' Respondent was

discharged May 29, 1975 on the ground that he was an

incompetent and unsafe pilot (2a).*2 Del Casal filed a

grievance pursuant to the collective bargaining agree-

1 Under the Railway Labor Act, union security provisions re-

quiring payment of dues or equivalent agency fees as a condition

of continuing employment were specifically sanctioned by the 1951

amendment to §2 Eleventh, 45 U.S.C. 152 Eleventh, Railway

Emp. Dept. v. Hanson, 351 U.S. 225 (1956).

2 Twice prior to his discharge, Del Casal had sought to become

an ALPA member but was rejected because the member-pilots who

had flown with him considered him incompetent as a pilot. Pur-

suant to an independent and unrelated examination by Eastern

management officials of Del Casal’s proficiency, Eastern deter-

mined that he was not a competent pilot and terminated his em-

ployment.

3

ment. The grievance was rejected at the initial stages

after which ALPA—at Del Casal’s request—submitted

it for a hearing before the Eastern Airlines Pilots Sys-

tems Board of Adjustment (System Board) .*

ALPA furnishes a staff attorney to those airline em-

ployees in System Board arbitration proceedings who are

dues-paying members and also to those non-members who

pay equivalent agency fees for ALPA’s services (R. 127,

Exh. 28) (references are to the docket entry numbers

on the district court’s docket sheet). As stated above,

Del Casal was not a member of ALPA nor did he pay

agency fees. ALPA staff attorney, John Loomos, as-

sisted Del Casal at the initial stages of his grievance;

after perfecting Del Casal’s appeal to the final step of

the grievance procedure, Loomos advised Del Casal that,

because of ALPA’s policy, he would be unable to rep-

resent Del Casal at the System Board hearing. Pursuant

to Loomos’ advice, Del Casal retained David Block, Esq.

who represented him at the System Board hearing (3a).*

The Board, after extensive evidentiary proceedings,

sustained Del Casal’s termination, unanimously conclud-

ing that Eastern’s decision was based upon just cause

(4a). Del Casal thereafter brought suit against Eastern

and ALPA seeking as against Eastern to set aside the

3The system board, composed of two members from Eastern

and two members from ALPA is an arbitration tribunal estab-

lished pursuant to the Railway Labor Act, 45 U.S.C. 184, and the

collective bargaining agreement between Eastern and ALPA.

4 The record shows that not only did Loomos aid Del Casal at the

initial stages of his grievance, but also that he attempted to

appear at the System Roard hearings in order to assist, but was

excluded by Block (R. 142: Lehman Dep. at 14-20, 23; Cochran

Dep. at 10-13). Indeed, the record shows that Loomos provided

Block with copies of pertinent documents, including prior Board

awards and opinions, did attend the first hearing as an observer,

and assisted Block in every way requested (R. 82, Loomos Dep.

at p. 75; R. 78, Plaintiff's Answers to ALPA’s Interrogatories,

115, 7).

d

decision of the System Board and from ALPA to recover

attorney’s fees incurred by him in unsuccessful pursuit

of his grievance as a consequence of ALPA’s refusal to

furnish staff counsel. The district court held that ALPA’s

refusal to provide Del Casal with staff counsel breached

its duty of fair representation and entered judgment of

$35,000 against ALPA for Del Casal’s attorney’s fees.

The district court at the same time rejected Del Casal’s

claim against Eastern holding that the System Board

decision was final and binding and that the fairness of

the proceeding had not been affected by ALPA’s refusal

of staff counsel.

The Court of Appeals, concluding that Del Casal’s

grievance had been properly rejected, affirmed dismissal

of Del Casal’s claim against Eastern. It observed that

Del Casal had been represented by retained counsel

throughout the arbitration process and that there was

“no claim that a union attorney could have adduced ad-

ditional evidence in [his] favor.” (8a). At the same

time, the Court of Appeals affirmed the judgment against

ALPA, holding that ALPA had breached its duty of fair

representation by refusing Loomos a staff attorney at

the System Board hearing. The Court of Appeals con-

cluded as follows:

“The record shows that ALPA does provide attor-

neys to grievants at their hearings before the Sys-

tem Board. It is also clear from the record that

John Loomos, the ALPA staff attorney, would have

represented Del Casal but for the fact that he was

not a union member. While ALPA has the authority

to decide under what conditions an attorney will be

supplied to a grievant, the fact that the grievant is

not a member of the union can play no part in that

decision.” (lla).

Even though it found that Del Casal’s underlying griev-

ance was lacking in merit, the Fifth Circuit neverthe-

less affirmed the $35,000 judgment against ALPA.

5

REASONS FOR GRANTING THE WRIT

THE FURNISHING OF STAFF COUNSEL FOR

ARBITRATION PROCEEDINGS AS AN INCIDENT

OF UNION MEMBERSHIP TO INDIVIDUALS WHO

PAY MEMBERSHIP DUES OR EQUIVALENT SERV-

ICE CHARGES IS A REASONABLE ALLOCATION _

OF LIMITED UNION RESOURCES AND DOES NOT

VIOLATE THE DUTY OF FAIR REPRESENTATION

AS PREVIOUSLY ARTICULATED BY THIS COURT

AND OTHER COURTS OF APPEALS.

The Fifth Circuit’s decision in this case, holding

ALPA’s policy for furnishing staff counsel in violation

of the duty of fair representation, establishes a per se

rule that unions which furnish counsel to dues-paying

members and to agency fee payors must provide the same

service to non-members who pay no part of the cost of

the service. Under the Fifth Circuit’s rule, a union fail-

ing to provide counsel faces liability for fee obligations

incurred by the non-member to individualls-retained

counsel, even if the non-member’s underlying grievance

against the employer is determined to be without merit.

This decision represents an unprecedented expansion of

the fair representation duty with substantial implica-

tions not only for ALPA but for other unions who pro-

vide counsel for those individuals who contribute to the

cost of the service.

A. The Fifth Circuit’s decision is contrary to decisions

of this Court which have defined DFR’s scope and

purpose as the protection of employment status and

have reserved broad discretion to the union in the

exercise of its exclusive representative authority.

The fair representation duty’s sole aim has previously

been to protect employees represented by an exclusive

bargaining agent from harm to their employment rights

through arbitrary exercises of the representative’s ex-

clusive authority, Steele v. Louisville & Nashville R. Co.,

328 U.S. 192 (1944); Ford Motor Co. v. Huffman, 345

6

U.S. 330 (1953). The duty has been declared “equal in

scope” with the union’s exclusive authority and “correla-

tive” thereto, Humphrey v. Moore, 375 U.S. 335, 342

(1964) ; Hines v. Anchor Motor Freight, 424 U.S. 554,

564 (1976); Int'l Bhd. of Electrical Workers v. Foust,

442 U.S. 52, —— (1979).° In exercising its exclusive

authority, the union has heretofore enjoyed a “wide

range of reasonableness”, Ford Motor Co. v. Huffman,

supra, 345 U.S. at ‘38, which includes broad discretion

in its administration of contract grievance and arbitra-

tion procedures, Vaca v. Sipes, 386 U.S. 171, 190 (1967).

Until now, it has been implicit that the fair representa-

tion duty is violated only where arbitrary exercise of

the union’s exclusive authority jeopardizes some aspect

of the employment status of the persons represented,

which the Court of Appeals acknowledged did not occur

here. In the arbitration context, this Court has held the

duty violated where a union “arbitrarily ignore[s] a

meritorious grievance or process[es] it in a perfunctory

fashion” id. at 191. Absent jeopardy to a person’s em-

ployment status through the thwarting of a meritorious

grievance, a union’s grievance administration policies

are within the area of discretion protected by Huffman

and Vaca. Here, ALPA placed Del Casal’s grievance

before the System Board precisely as asked. As stated

in Hines, where “. .. the union actually utilizes the griev-

ance and arbitration procedures in behalf of the em-

ployee, the focus is ... on whether, contrary to the ar-

bitrator’s decision, the employer breached the contract

and whether there is substantial reason to believe that a

union breach of duty contributed to the erroneous out-

5 The duty accordingly has not been held to extend to a union’s

conduct and policies outside the realm of its exclusive agency

function, Allied Chemical Workers v. Pittsburgh Plate Glass Co.,

404 U.S. 157, 181, n. 20 (1971); Kuhn v. Nat. Ass’n of Letter

Carriers, 528 F.2d 767, 770 (C.A. 8, 1976); Archer v. Air Line

Pilots Ass’n, 609 F.2d 934, 939 (C.A. 9, 1979), cert. denied, 100

S.Ct. 2920.

7

come of the contractual proceedings.” 424 U.S. at 568

(Emphasis added).

By holding the DFR violated where the union’s con-

duct in no way jeopardizes any aspect of employment—

indeed even where the underlying grievance is specifically

found to be lacking in merit—the newly-declared per se

rule violates the “focus” mandated by Hines and con-

flicts also with Huffman and Vaca. It conflicts further

with this Courts’ recent holding in Foust, supra, dis-

allowing punitive damage awards as inconsistent with

the duty’s compensatory objective. If the duty seeks only

to compensate an employee for improper harm to his em-

ployment status attributable to his union’s abuse of its

exclusive authority, it allows no compensation as a thres-

hold matter to a person whose employment rights have

not even been violated. Absent improper harm attribut-

able to union misconduct, there is no cognizable harm to

compensate. In such a context, a damage award against

the union is necessarily punitive contrary to Foust.®

Here, ALPA neither foreclosed arbitration of Del

Casal’s grievance nor thwarted its success by perfunctory

handling.’ That ALPA’s conduct in this case in no way

6It is no answer to say that the damage award “compensates”

Respondent for his fee obligation to retained counsel since that

obligation is in no way a consequence, either direct or indirect,

of a violation of Respondent’s employment rights. As _ such,

Respondent’s fee obligation simply is not harm cognizable by

DFR consistent with the prior decisions of this Court. Neither

Respondent’s discharge nor the denial of counsel violated his em-

ployment rights; the discharge was duly upheld and the furnish-

ing of counsel was in no way a term of employment under the

applicable labor contract. Absent some contract breach or other

improper derogation of employment status, there is nothing for

the DFR to compensate, Vaca, supra, 386 U.S. at 197-198; Czosek

v. O’Mara, 397 U.S. 25, 29 (1970); Hines, supra.

7 Rather than arbitrarily foreclosing arbitration of nonmembers’

grievances, see Hughes Tool Co. v. NLRB, 147 F.2d 69 (C.A. 5,

1945), ALPA placed Del Casal’s grievance before the System

8

jeopardized Del Casal’s employment status is beyond

dispute and indeed was acknowledged by the Fifth Cir-

cuit’s affirmance of the judgment upholding the integrity

of the System Board proceeding. Had the Fifth Circuit

properly conceived the scope and purpose of the fair

representation duty, it would have recognized that fur-

nishing or denial of staff counsel does not by itself im-

plicate the duty’s concern so long as union action or

inaction does not thwart a meritorious grievance and in

no way jeopardize rights of employment. Further, had

the Fifth Circuit properly respected the “wide range of

reasonableness” and “substantial discretion” reserved to

the union it would have recognized ALPA’s policy of

furnishing staff counsel’s service to employees who share

in its cost through membership dues or agency fee-service

charges—and withholding such service from “free riders”

—as a reasonable allocation of limited union resources

and a clearly proper exercise of discretion. Denial of an

expensive service to free-riders, so long as employment

status is not jeopardized in the process, harmonizes per-

fectly with a principal objective of Congress’ 1951

Amendment of the Railway Labor Act, namely:

the elimination of the ‘free riders’—those employ-

ees who obtained the benefits of the unions’ partici-

pation in the machinery of the Act without finan-

cially supporting the unions.” See Int'l Assn. of

Machinists v. Street, 367 U.S. 740, 761 (1961);

Radio Officers’ Union v. NLRB, 347 U.S. 17, 41

(1954).

The Fifth Circuit’s decision is wholly oblivious to the

Railway Labor Act policy of discouraging free riders.

The fact that ALPA’s policy denies counsel to those who

pay . » share of the cost rather than suggesting breach

of the fair representation duty accentuates the policy’s

reasonableness.

Board thus fully satisfying whatever interest he had under the

collective bargaining agreement in receiving a full and fair hear-

ing of his grievance.

Since application of ALPA’s staff counsel policy was

in no way responsible for Respondent’s loss of employ-

ment, the Fifth Circuit’s per se rule holding it in viola-

tion of the DFR conflicts with this Court’s decisions in

Vaca, Hines, Huffman, and Foust.

B. The Fifth Circuit’s decision conflicts with decisions

of other courts of appeals holding that unions may

distinguish between members and non-members in

the conferral of internal union benefits and with

decisions holding that DFR does not require the

union to furnish the grievant with counsel.

The Fifth Circuit paid lip service to, but failed to

accept the inevitable application of, (1) decisions of

other courts of appeals allowing unions to distinguish

between members and non-members with respect to in-

ternal union benefits, and (2) decisions holding that the

duty of fair representation does not require the union

to furnish the grievant with counsel. The Fifth Cir-

cuit’s decision is contrary to these lines of authority.

Once the union has exercised its prerogative of invoking

arbitration, its policy with respect to furnishing the

grievant with counsel—like other internal benefits of

union membership, eligibility to participate in union

decision-making processes, and eligibility for membership

itself—does not threaten derogation of employment status

through preclusion of a meritorious grievance or other-

wise.

It is settled that the fair representation duty does not

require a union to accept any particular individual into

membership, Moynahan v. Pari-Mutuel Employees Guild,

317 F.2d 209, 211 (C.A. 9, 1963). As this Court declared

in Steele itself, while the union is obliged fairly to pro-

tect the employment status of all employees, the Railway

Labor Act “does not deny to such a bargaining labor

organization the right to determine eligibility to its mem-

bership. ...” 323 U.S. at 204; National Labor Relations

Board v. Allis-Chalmers Mfg. Co., 388 U.S. 175, {bt

10

(1967). Similarly foreign to exercise of the exclusive

agency are a union’s policies with respect to eligibility

for internal benefits. A union is not obliged to extend

to non-members the same insurance or other internal

benefits that are enjoyed by members. NLRB vy. Auto-

mobile Workers, 222 F.2d 95 (C.A. 7, 1955). Non-

members may lawfully be charged a cost-based fee for

the privilege of using a hiring hall which members fund

through their normal dues, Local 138, Operating En-

gineers V. NLRB, 321 F.2d 130, 135, 138-39 (C.A. 2,

1963). The very right to vote on whether or not to

ratify a proposed bargaining agreement can be’ lawfully

confined by a union to those employees in the bargaining

unit who are members in good standing. NLRB v. Gen-

eral Motors Corp., 373 U.S. 734, 787 (1963); Cleveland

Orchestra Committee v. Musicians, Local 4, 303 F.2d 229

(C.A. 6, 1962); Werk v. Armco Steel Corp., —— F.

Supp. ——, 92 LRRM 3393 (S.D. Ohio 1976). The per

se rule declared by the Fifth Circuit in this case con-

flicts with the foregoing decisions. ALPA’s staff counsel

policy—just as much as the internal union benefits and

rights involves in those cases—is outside the concern of

the DFR so long as the employment status of persons

represented is in no way jeopardized by its application.

Until now, no court had held the fair representation

duty, in any circumstance, to require a union to furnish

counsel for an arbitration proceeding. Indeed, all courts

of appeals addressing the question had held that the

duty does not require counsel to be furnished, D’Elia v.

N.Y., N.H., & H.R.R. Co., 230 F.Supp. 912 (D. Conn.,

1964), aff'd 338 F.2d 701 (C.A. 2, 1964), cert. denied,

380 U.S. 978; Golden v. Local 55, Firefighters, F.2d

——, 24 FEP Cases 1340, 1342 (C.A. 9, 1980). Under-

lying those decisions is recognition that furnishing or

8The Fifth Circuit itself had held that furnishing of union

counsel is not required by the duty of fair representation, Grovner

v. Georgia-Pacific Corp., 625 F.2d 1289 (C.A. 5, 1980).

11

denial of counsel will not by itself, unlike union refusal

to invoke arbitration procedures or perfunctory griev-

ance handling, jeopardize employment status by thwart-

ing meritorious grievances.

If furnishing of counsel is not as a general matter

required—and the Second and Ninth Circuits have held

along with the Fifth Circuit in Grovner, supra, that it

is not—then it follows a fortiori that a policy limiting

staff counsel to those paying their fair share of the cost

is a reasonable union policy consistent with the fair

representation duty. ALPA’s policy ra.‘ier than invidi-

ously discriminating against non-members,’ simply limits

an expensive internal benefit, which unions are not as

a general matter required to provide in order to fulfill

the duty, to those individuals who pay their fair share

of its cost.

As such, ALPA’s policy is squarely in line with the

contemplation expressed by this Court in NLRB v. Gen-

eral Motors Corp., 373 U.S. 734 (1963), that participa-

tion in union decision-making be limited to union mem-

bers and that enjoyment of union-funded internal bene-

fits, such as representation by staff counsel here, would

be limited to those contributing to the cost. In describ-

ing an arrangement under which employees would pay

agency fees but could, if they wished, refrain from be-

coming union members, the Court stated as follows:

“Employees choosing not to join would make the

required payments and, in accordance with union

custom, would share in union expenditures for strike

benefits, educational and retired member benefits,

and union publications and promotional activities,

but they would not be entitled to attend union meet-

ings, vote upon ratification of agreements negotiated

by the union, or have a voice in the internal affairs

of the union.” 373 U.S. at 737.

® Notably, ALPA does not deny counsel to all non-members

since it provides counsel to those non-members who pay service

charges.

12

ALPA’s policy of furnishing counsel as an incident of

membership to employees paying membership dues or

equivalent service charges is precisely the practice which

the Court accepted as customary and contemplated with

respect to the broad range of union-funded internal bene-

fits. Such a practice indeed advances the policy of the

Railway Labor Act of eliminating “free riders”.

Here, as surely as in any case, there has been no

frustration of a meritorious grievance whether through

preclusion or mishandling of the arbitration remedy, or

otherwise. The System Board, after a full and fair

hearing in which Del Casal was represented by his own

counsel, upheld Eastern’s conclusion that Del Casal was

not a competent pilot. The integrity of that determina-

tion was upheld by judgment of the district court which

was affirmed by the Court of Appeals. If ALPA had

simply refused Del Casal’s request to place his grievance

before the System Board and Del Casal had asserted

such refusal as a violation of DFR, ALPA could have

defended by demonstrating that the grievance was with-

out merit, which is precisely what the System Board

duly concluded after a full and fair hearing. In this

case, given his grievance’s lack of merit, the full and

fair hearing which Del Casal received before the System

Board appears in retrospect as more than he could have

commanded pursuant to the duty of fair representation.

Since the sustaining of his discharge was due to his lack

of competency as a pilot and his grievance’s lack of merit

—and not to the denial of counsel or any other conduct

of ALPA—no breach of the fair representation duty can

be held to have occurred.

The Court of Appeals’ per se rule that unions which

provide counsel to grievants in arbitration proceedings

must provide this expensive service without regard to

whether the particular grievant shares in the cost (1)

violates the broad discretion reserved to unions by the

13

decisions of this Court in Huffman and Vaca; (2) ex-

tends the duty of fair representation in violation of Vaca

and Hines to a union policy which does not threaten

harm to the grievant’s employment status and, at any

rate, manifestly did not harm Del Casal’s employment

status in this case; (3) disapproves a reasonable union

policy in harmony with the Railway Labor Act policy

of discouraging “free riders”; and (4) in conflict with

Foust, upholds a damage remedy where the grievant has

suffered no violation of his employment rights and ac-

cordingly has no claim cognizable, nor compensable, by

the DFR.

The Fifth Circuit’s decision in this case will have

far-reaching implications for application of the duty of

fair representation under both the Railway Labor Act

and the Labor-Management Relations Act. The decision

passes on a highly significant issue of federal labor law

not directly resolved by this Court which fully warrants

this Court’s review.

CONCLUSION

For the reasons stated, the Petition for Writ of Cer-

torari should be granted; the decision of the Court of

Appeals should be reversed.

Respectfully submitted,

DANIEL B. EDELMAN

(Counsel of record)

YABLONSKI, BOTH & EDELMAN

1140 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 833-9060

GARY GREEN

Air fine Pilots Association

International

1625 Massachusetts Ave., N.W.

Washington, D.C. 200386

Counsel for Petitioner

APPENDIX

la

APPENDIX

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

UNIT B

Nos. 79-1880, 79-2953

J. E. PELAEZ DEL CASAL,

Plaintiff-Appellant,

v.

EASTERN AIRLINES, INC., ET AL.,

Defendants,

EASTERN AIRLINES, INC.,

Defendant-A ppellee.

J. E. PELAEZ DEL CASAL,

Plaintiff-Appellee,

v.

EASTERN AIRLINES, INC., ET AL.,

Defendants,

AIRLINE PILOTS ASSOCIATION INTERNATIONAL,

a labor organization,

Defendant-A ppellant.

Jan. 16, 1981

Appeals from the United States District Court

for the Southern District of Florida

2a

Before KRAVITCH and FRANK M. JOHNSON, JR.,

Circuit Judge, and ALLGOOD", District Judge.

ALLGOOD, District Judge:

This is a consolidated appeal from the district court’s

orders in two separate actions resulting from the same

facts. In the first case (79-1880) J. E. Pelaez Del Casal

appeals from an adverse summary judgment in favor of

defendant, Eastern Airlines, relative to the alleged

wrongful discharge of appellant as an airline pilot for

Eastern. The second case (79-2953) is before the court

upon the appeal by the Airline Pilots Association, Inter-

national (ALPA) from the district court’s order grant-

ing Del Casal’s motion for summary judgment as to lia-

bility for the breach of the duty of fair representation

and from the district court’s orders entering judgment

against ALPA in the amount of $35,000 damages and

denying a motion for judgment notwithstanding the ver-

dict, or for a new trial, or for remittitur.

I. Facts

Appellant Del Casal was a pilot employed by Eastern

Airlines. While employed by Eastern, Del Casal twice

unsuccessfully attempted to become a member of ALPA,

the exclusive bargaining agent for Eastern’s pilots. Both

times he was rejected on the basis of his incompetency

as a pilot.

On May 29, 1975, Del Casal was discharged from

Eastern on the ground that he was an incompetent and

unsafe pilot. He immediately filed a grievance pursuant

to the collective bargaining agreement between ALPA

and Eastern. During the initial stages of the grievance

procedure, Del Casal was assisted by John Loomos, an

ALPA staff attorney. When the grievance was rejected

at the initial stages, Del Casal requested a hearing be-

*Senior District Judge of the Northern District of Alabama,

sitting by designation.

8a

fore the Eastern Airlines Pilots System Board of Ad-

justment (System Board). The System Board, composed

of two members from Eastern and two members from

ALPA, is an arbitration tribunal established pursuant

to the Railway Labor Act, 45 U.S.C. § 184 and the col-

lective bargaining agreement between Eastern and

ALPA.'

Before the System Board hearing was held, Loomos,

the ALPA staff attorney, advised Del Casal that he would

not be allowed to represent him at the hearings. ALPA

had instructed Loomos to cease handling the case because

Del Casal was not a member of the union. In his letter

to the appellant informing him that he would no longer

be representing him because he was not a union member,

Loomos advised Del Casal to retain the services of an-

other attorney. Del Casal took this advice and retained

an attorney, David Block, to represent him in the matter.

A four member System Board was convened to consider

Del Casal’s grievance and his attorney presented a mo-

tion based on procedural defects of the discharge.*? The

four member board deadlocked on this issue and, pursu-

ant to the collective bargaining agreement, a fifth neu-

tral member, selected from a list of experienced arbi-

trators, was added to the board in order to break the

deadlock. The five member board met in closed executive

session and the deadlock was broken in Del Casal’s favor.

The board ruled that Eastern could not use evidence

which did not comply with the collective bargaining

agreement to support Del Casal’s discharge.

1The major provisions of the Railway Labor Act, 45 U.S.C.

§ 151 et seq., are applicable to carriers by air. See 45 U.S.C.

§ 181 et seq.

2The motion contended that Eastern’s discharge of Del Casal

was wrongful since it was based upon evidence violative of S»ction

41 of the collective bargaining agreement. Section 41 prohibits the

use of disciplinary letters over three years old or letters based

upon dissimilar infractions.

4a

Thereafter, the four member board reconvened on Sep-

tember 15, 1976, and on January 11-13, 1977, to deter-

mine whether Eastern was justified in terminating Del

Casal. Del Casal was represented by retained counsel

Block throughout the proceedings. On February 7, 1977,

the System Board issued a ruling finding that Eastern

was justified in terminating Del Casal.

Subsequently, Del Casal instituted an action seeking

to set aside the decision of the System Board and to be

granted a de novo review of his claim of wrongful dis-

charge. The thrust of his complaint was that his hearing

before the System Board was a sham and a mockery of

justice because all of the board members were biased

against him. A claim was also presented against ALPA

for monetary damages resulting from ALPA’s alleged

breach of its duty of fair representation. The district

court granted appellant’s motion for summary judgment

against ALPA as to liability for the breach of the duty

to fairly represent Del Casal and agreed that ALPA had

breached that duty by not providing him with an attor-

ney. The court explained that Del Casal was entitled

to recover attorney’s fees actually paid to his privately

retained attorney as well as any.other expenses incurred

as a direct and proximate result of having to retain pri-

vate counsel. Del Casal v. Eastern Airlines, Inc., 465

F.Supp. 1254 (S.D. Fla. 1979). The cause was set for

trial as to these damages. The district court granted

Eastern’s motion for summary judgment against Del

Casal on his claim for wrongful discharge and found

that, although ALPA had breached its duty of fair rep-

resentation to Del Casal, the court did not have jurisdic-

tion over Eastern because the breach of duty did not

“substantially undermine” the integrity of the System

Board. Thus the district court held that the System

Board decision was final and binding on Del Casal and

Eastern was dismissed as a party defendant. Jd. Del

Casal’s appeal of that part of the court’s order which

5a

dismissed Eastern as a defendant is the subject of the

first case (No. 79-1880) of this consolidated appeal.

Subsequently, a trial was held to determine damages due

Del Casal and the jury returned a verdict of $35,000

against ALPA. The district court entered judgment in

that amount with interest thereon and costs and also

denied ALPA’s motion for judgment N.O.V., or for a

new trial, or for remittitur. ALPA’s appeal of that part

of the district court’s order granting Del Casal’s motion

for summary judgment as to ALPA’s liability and from

the court’s orders entering the $35,000 judgment and

denying the above motions is the subject of the second

case (No. 79-2953) of this consolidated appeal.

II. Del Casal’s Appeal (No. 79-1880)

On appeal, Del Casal contends that the decision of the

System Board should be set aside on two grounds: (1)

he was denied fundamental due process in that he was

not accorded a hearing before an impartial tribunal, and

(2) the entire arbitral proceedings were seriously under-

mined by ALPA’s breach of its duty of fair representa-

tion. He cites Hines v. Anchor Motor Freight, Inc., 424

U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976), and

Wells v. Southern Airways, Inc., 517 F.2d 182 (5th Cir.

1975), cert. denied, 425 U.S. 914, 96 S.Ct. 1512, 47 L.Ed.

2d 765 (1976), and cert. denied Air Line Pilots Asso.,

International v. Wells, 425 U.S. 1000, 96 S.Ct. 2217, 48

L.Ed.2d 824 (1976), and later app. Wells v. Southern

Airways, Inc., 616 F.2d 107 (5th Cir. 1980), in support

of these contentions. Neither contention is sufficient, on

the facts of these cases, to require setting aside the deci-

sion of the System Board.

It is well settled that the Railway Labor Act, under

which the Eastern Airlines Pilots System Board of Ad-

justment was created, allows only limited judicial review

of arbitration decisions. In fact, its range is among the

narrowest known to the law. Eastern Airlines, Inc. V.

6a

Transport Workers Union, 580 F.2d 169, 172 (5th Cir.

1978) ; Diamond v. Terminal Ry. Alabama State Docks,

421 F.2d 228, 233 (5th Cir. 1970). See also Andrews V.

Louisville & Nashville R.R. Co., 406 U.S. 320, 325, 92

S.Ct. 1562, 1565, 32 L.Ed.2d 95 (1972). A court may

set aside an order of the System Board only on one of

three specific grounds: (1) failure of the System Board

to comply with the Act, (2) fraud or corruption, or (3)

failure of the order to conform or confine itself to mat-

ters within the System Board’s jurisdiction. 45 U.S.C.

§ 153(q).* Eastern Airlines, 580 F.2d at 172; Diamond,

421 F.2d at 233.

3 45 U.S.C. § 158(q) provides:

(q) If any employee or group of employees, or any carrier,

is aggrieved by the failure of any division of the Adjustment

Board to make an award in a dispute referred to it, or is

aggrieved by any of the terms of an award or by the failure

of the division to include certain terms in such award, then

such employee or group of employees or carrier may file in

any United States district court in which a petition under

paragraph (p) could be filed, a petition for review of the

division’s order. A copy of the petition shall be forthwith

transmitted by the clerk of the court to the Adjustment Board.

The Adjustment Board shall file in the court the record of the

proceedings on which it based its action. The court shall have

jurisdiction to affirm the order of the division or to set it

aside, in whole or in part, or it may remand the proceeding

to the division for such further action as it may direct. On

such review, the findings and order of the division shall be

conclusive on the parties, except that the order of the division

may set aside, in whole or in part or remanded to the divi-

sion, for failure of the division to comply with the require-

ments of this Act [45 U.S.C. §§ 151 et seq.], for failure of the

order to conform, or confine, itself, to matters within the scope

of the division’s jurisdiction, or for fraud or corruption by a

member of the division making the order. The judgment of

the court shall be subject to review as provided in sections

1291 and 1254 of title 28, United States Code [28 U.S.C.

§§ 1254, 1291].

Id.

Ta

Although in his original complaint Del Casal made

allegations covering these three grounds, in his briefs

filed on appeal he specifically states that he does not

contend that he fits within these statutory exceptions.

Instead, appellant argues a judicially created ground for

review and contends that the System Board’s order should

be set aside because all the members of the arbitral body

were biased against him; and he was thus denied funda-

mental due process. He argues that he could not have a

fair hearing before a System Board composed of two

company appointed members and two union appointed

members. However, he has made no showing of partial-

ity or bias on the part of individual members of the

System Board.

This court has previously rejected the contention that

a System Board’s holding must be set aside because

there was no one on the board “partisan” to the employ-

ee’s interests. In Wells v. Southern Airways, Inc., 517

F.2d 132 (5th Cir. 1975), plaintiff Wells, also a pilot,

made such an argument and prevailed in the district

court. This court reversed, noting that all members of

the System Board “are charged with the responsibility

of impartially deciding the case before the board. The

trial court did not find any bias on the part of indi-

vidual members of the board. No denial of fundamental

due process occurred, making the Board’s decision final.”

Id. at 184-35, footnote omitted.

Here, as in Wells, the members of the System Board

were obligated to determine disputes before it in an in-

dependent, impartial manner. Absent a showing of par-

tiality or bias on the part of individual members of the

System Board, this court will not disturb its conclusions.

Appellant Del Casal also contends that the union’s

breach of its duty of fair representation so infects the

System Board’s proceedings that its conclusions must be

set aside. In Hines, the Supreme Court held that a

8a

union’s breach of its duty of fair representation may in-

validate an otherwise binding arbitrated decision if it

“seriously undermines the integrity of the arbitral proc-

ess.” 424 U.S. at 567, 96 S.Ct. at 1058. Here, the union’s

breach of its duty of fair representation, which is dis-

cussed further below, did not “seriously undermine” the

integrity of the arbitral process in this case.

In Hines, the union told claimants that they need not

hire counsel because the union would process their griev-

ance. However, at the arbitration hearing the union

attorney presented no evidence in favor of the claimants,

and the arbitrators ruled against them. After arbitra-

tion, claimants retained their own counsel who uncovered

evidence which exonerated claimants of the charges upon

which their discharges from employment had been based.

The Supreme Court’s focus in Hines was upon the claim-

ant’s lack of representation which seriously undermined

the arbitral process.

In the instant case, however, appellant was advised

to obtain counsel, and he did so. Retained counsel repre-

sented appellant throughout the arbitration process.

There is no claim that a union attorney could have ad-

duced additional evidence in appellant’s favor. Thus,

appellant’s argument that the union’s breach undermined

the integrity of the arbitration proceeding is mere con-

jecture and invalid. The district court was, therefore,

correct in concluding that the System Board’s order deny-

ing relief to appellant Del Casal is final and binding and

Eastern was correctly dismissed as a party defendant

in this case.

III. ALPA’s Appeal (No. 79-2953)

A. The Duty of Fair Representation

On appeal, ALPA contends that the district court

erred in holding that the union violated its duty of fair

representation by refusing to provide Del Casal with a

9a

union staff attorney to represent him at the System

Board hearing. ALPA argues that the services of a staff

attorney are one of the benefits of union membership

and the furnishing of such is not required by contract

or law. Furthermore, the union argues that the duty of

fair representation does not require a union to accept

any particular individual into membership, Moynahan v.

Pari-Mutuel Employees Guild of Cal. Local 280, 317 F.2d

209, 211 (9th Cir. 1963), cert. denied, 375 U.S. 911, 84

S.Ct. 207, 11 L.Ed.2d 150 (1963), and that a union is

not obliged to extend to nonmembers the same insurance,

social, or other internal benefits which are enjoyed by

members. NLRB v. International Union, United Auto

Workers, 222 F.2d 95 (7th Cir. 1955). ALPA notes

that a union may refuse to prosecute a grievance which

it considers to be lacking in merit. Vaca v. Sipes, 386

U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) ; Sander-

son V. Ford Motor Co., 483 F.2d 102 (5th Cir. 1973);

Encina v. Tony Lama Boot Co., 448 F.2d 1264 (5th Cir.

1971). Noting also that the district court declined to

follow Encina because it found that ALPA’s refusal to

supply a staff attorney was based upon Del Casal’s non-

membership, rather than the lack of merit in his griev-

ance, the union argues that Del Casal’s nonmembership

and the lack of merit in his grievance were only opposite

sides of the same coin since Del Casal was refused mem-

bership only because of his incompetence as a pilot and

that the decision not to supply him with a staff attorney

was based on that incompetency.

The court accepts ALPA’s arguments that the duty of

fair representation does not require a union to accept a

particular individual into membership, that a union is

not obligated to extend those internal benefits enjoyed by

its members to nonmembers, and that a union may refuse

to prosecute a grievance which it considers to be lacking

in merit; however, these arguments are not dispositive

of the issue in this case. The issue in this case is whether

10a

a union may refuse to represent a member of the bar-

gaining unit on the ground that he is not a member of

the union without violating its duty of fair representa-

tion. Thirty-five years ago this court established the

principle that a union may not discriminate against

members of its bargaining unit on the basis of that per-

son’s status as a nonmember of the union. Hughes Tool

Co. v. NLRB, 147 F.2d 69 (5th Cir. 1945).

The United States Supreme Court noted the exclusive

authority of a bargaining agent to represent the inter-

ests of all employees without regard to union membership

and commented on a union’s duty of fair representation

in Hines, 424 U.S. at 564, 96 S.Ct. at 1056, when it

stated that “the controlling statutes have long been in-

terpreted as imposing upon the bargaining agent a re-

sponsibility equal in scope to its authority, ‘the responsi-

bility and duty of fair representation.’” That court had

earlier defined the union’s duty of fair representation in

Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d

842, when it stated that the agent’s “statutory authority

to represent all members of a designated unit includes

a statutory obligation to serve the interests of all mem-

bers without hostility or discrimination toward any, to

exercise its discretion in complete good faith and hon-

esty, and to avoid arbitrary conduct.” Jd. at 177, 87

S.Ct. at 909. The court continued, saying that “[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.” Id. at 190, 87 S.Ct. at 916. The proposi-

tion that discrimination against nonmember employees

who are part of the bargaining unit is impermissibly

arbitrary if no relevant distinctions exist between the

union and nonunion employees is reiterated in Deboles

v. Trans World Airlines, Inc., 552 F.2d 1005, 1016 (3rd

Cir. 1977), cert. denied, 434 U.S. 837, 98 S.Ct. 126, 54

L.Ed.2d 98 (1977).

lla

In the instant case the appellee Del Casal argues that

ALPA’s discriminatory refusal to allow a staff attorney

to represent him at the System Board hearing based

upon his nonmember status constituted a breach of

ALPA’s duty to fairly represent him. We agree. The

record shows that ALPA does provide attorneys to griev-

ants at their hearings before the System Board. It is

also clear from the record that John Loomos, the ALPA

staff attorney, would have represented Del Casal but for

the fact that he was not a union member. While ALPA

has the authority to decide under what conditions an

attorney will be supplied to a grievant, the fact that the

grievant is not a member of the union can play no part

in that decision.

B. The Damages

Appellant ALPA further contends that Del Casal is

not due any damages for the breach of the duty of fair

representation and, alternatively, that the damages are

excessive. ALPA relies upon the district court’s finding

that the breach of duty had no prejudicial effect upon

the System Board’s review and determination of Del

Casal’s grievance to argue that a monetary award should

not be allowed for an employee who, despite the union’s

breach, has prosecuted his own grievance and received a

full and fair hearing. Relying on cases such as Cronin

v. Sears, Roebuck & Co., 588 F.2d 616, 619 (8th Cir.

1978) ; Deboles v. Trans World Airlines, 552 F.2d 1005;

St. Clair v. Local Union No. 515 of Int. Bro. of Team-

sters, Inc., 422 F.2d 128, 1382 (6th Cir. 1969), ALPA

presses the argument that where the grievant would have

lost even if there were no breach by the union, an award

of damages is not permitted. It is ALPA’s position that

if the grievance process is untainted by a union’s breach,

the employee is in the same position he would have been

had there been no breach and should not be compensated.

12a

The cases relied upon by ALPA are inapposite and

mislead because they hold that if a grievance is merit-

less, a plaintiff suffers no actual loss because of the union

breach. ALPA’s argument ignores the fact that the

plaintiff here suffered loss in the form of fees to be paid

to his privately retained attorney. The applicable law

on damages in cases such as this was set forth in Vaca

v. Sipes, 386 U.S. at 197, 87 S.Ct. at 920, when the

court stated, “The governing principle, then, is to appor-

tion liability between the employer and the union accord-

ing to the damage caused by the fault of each.” 7d.

Here, the damage caused by the union was the attorney’s

fee which Del Casal incurred as a result of the union’s

breach. Judgment was correctly entered against ALPA

only for the damage caused by the breach of the duty to

fairly represent Del Casal in the System Board hearings.

ALPA argues, alternatively, that the $35,000 awarded

by the jury is excessive and that the court erred in re-

fusing to impose a remittitur upon the jury’s award.

We do not agree. The jury’s award was well within the

limits of the proof. In order for an award to be reduced,

“the verdict must be so gross or inordinately large as

to be contrary to right reason.” Machado v. States Ma-

rine-Isthmian Agency, Inc., 411 F.2d 584, 586 (5th Cir.

1969). The court “will not disturb an award unless

there is a clear showing that the verdict is excessive as

a matter of law.” Anderson v. Eagle Motor Lines, Inc.,

423 F.2d 81, 85 (5th Cir. 1970). The award, in order

to be overturned, must be “grossly excessive” or “shock-

ing to the conscience.” LaForest v. Autoridad de Las

Fuentas Fluviales, 586 F.2d 443 (1st Cir. 1976). Plain-

tiff’s testimony showed that a reasonable hourly fee for

his attorney could have been $75.00 per hour. The testi-

mony showed that the attorney had spent 783 hours in

the preparation and trial of the System Board case

which dragged on for over a year. While defendant pro-

13a

duced conflicting testimony, the jury’s award was well

within the evidence presented.

We have considered the other points raised by the

appellants and find them to be without merit. Both

cases are AFFIRMED.

l4a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 79-2953

D.C. Docket No. 77-2279-Civ-J AC

J. E. PELAEZ DEL CASAL,

Plaintiff-Appellee,

versus

EASTERN AIRLINES, INC., ET AL.,

Defendants,

AIRLINE PILOTS ASSOCIATION INTERNATIONAL,

a labor organization,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Florida

Before KRAVITCH and FRANK M. JOHNSON, Cir-

cuit Judges, and ALLGOOD”, District Judge.

JUDGMENT

This cause came on to be heard or the transcript of the

record from the United States District Court for the

Southern District of Florida, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

*Senior District Judge of the Northern District of Alabama,

sitting by designation.

l5a

of the said District Court in this cause be, and the same

is hereby, affirmed;

IT IS FURTHER ORDERED that plaintiff-appellant

pay to defendant-appellee the costs on appeal, to be taxed

by the Clerk of this Court.

January 16, 1981

Issued as Mandate: Mar. 3, 1981

* Senior District Judge of the Northern District of Alabama,

sitting by designation.

16a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNIT B

No. 79-2953

J. E. PELAEZ DEL CASAL,

Plaintiff-Appellee,

versus

EASTERN AIRLINES, INC., ET AL.,

Defendants,

AIRLINE PILOTS ASSOCIATION INTERNATIONAL,

a labor organization,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Florida

ON PETITION FOR REHEARING AND

PETITION FOR REHEARING EN BANC

(Opinion January 16, 1981,

5 Cir., 198—, —— F.2d ——).

(February 18, 1981)

17a

Before KRAVITCH and FRANK M. JOHNSON, Cir-

cuit Judges, and ALLGOOD", District Judge.

PER CURIAM:

(X) The Petition for Rehearing is DENIED and no

member of this panel nor Judge of this Administrative

Unit in regular active service having requested that the

Court be polled on rehearing en banc (Rule 35, Federal

Rules of Appellate Procdure; Local Fifth Circuit Rule

16; Fifth Circuit Judicial Council Resolution of Janu-

ary 14, 1981), the suggestion for Rehearing En Banc is

DENIED.

( ) The Petition for Rehearing is DENIED and the

judges in regular active service of this Administrative

Unit having been polled at the request of one of said

judges and a majority of said judges not having voted in

favor of it (Rule 35, Federal Rules of Appellate Proce-

dure; Local Fifth Circuit Rule 16; Fifth Circuit Judicial

Council Resolution of January 14, 1981), the suggestion

for Rehearing En Banc is also DENIED.

( ) A member of this Administrative Unit in active

service having requested a poll on the reconsideration in

this cause en banc, and a majority of the judges in

active service of said unit not having voted in favor of it,

rehearing en banc is DENIED.

ENTERED FOR THE COURT:

/s/ Phyllis Kravitch

United States Circuit Judge

*Senior District Judge of the Northern District of Alabama,

sitting by designation.

18a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNIT B

No. 79-2953

J. E. PELAEZ DEL CASAL,

Plaintiff-Appellee,

versus

EASTERN AIRLINES, INC., ET AL.,

Defendants,

AIRLINE PILOTS ASSOCIATION INTERNATIONAL,

a labor organization,

Defendant-A ppellant.

Appeal from the United States District Court for the

Southern District of Florida

ORDER:

( ) The motion of appellant, AIRLINE PILOTS AS-

SOCIATION, INTERNATIONAL, for stay of the

issuance of the mandate pending petition for writ

of certiorari is DENIED.

(X) The motion of appellant, AIR LINE PILOTS AS-

SOCIATION, INTERNATIONAL, for stay of the

issuance of the mandate pending petition for writ

(

) The motion of

19a

of certiorari is GRANTED to and including April

10, 1981, the stay to continue in force until the

final disposition of the case by the Supreme Court,

provided that within the period above mentioned

there shall be filed with the Clerk of this Court the

certificate of the Clerk of the Supreme Court that

the certiorari petition has been filed. The Clerk

shall issue that mandate upon the filing of a copy

of an order of the Supreme Court denying the

writ, or upon the’ expiration of the stay yranted

herein, unless the above mentioned certificate shall

be filed with the Clerk of this Court within that

time.

for a further stay of the issuance of the mandate

is GRANTED to and including

under the same conditions as set forth in the pre-

ceding paragraph.

IT IS ORDERED that the motion of

for a further stay of

the issuance of the Mandate is DENIED.

/s/ Phyllis Kravitch

United States Circuit Judge