Petition for Writ of Certiorari — Melanson v. United Air Lines, Inc.

F Sopreme Count Uk

FIUED

JUL 23 139)

No. OFFS Ur HE CCERK

In The

Supreme Court of the United States

October Term, 1991

4

NICHKOL MELANSON,

Petitioner,

VS.

UNITED AIRLINES, INC.,

An Illinois Corporation

Respondent.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

EpitH J. BENAY

Counsel of Record for Petitioner

345 Franklin Street

San Francisco, California 94102

Telephone: (415) 241-7286

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether state tort claims for pre-employment fraud

and deceit which are “independent” of the terms of the

Collective Bargaining Agreement ‘and which do not

require that the court “interpret” the terms of the Collec-

tive Bargaining Agreement are preempted under the Rail-

way Labor Act, 45 U.S.C. § 151 et seq.

2. Whether state tort claims for pre-employment fraud

and deceit which do not stem from representations

regarding specific terms of the Collective Bargaining

Agreement are preempted by the Railway Labor Act, 45

U.S.C. § 151 et seq.

3. Whether state tort claims for pre-employment fraud

and deceit which stem from representations regarding

terms of the Collective Bargaining Agreement are pre-

empted by the Railway Labor Act, 45 U.S.C. § 151 et seq.

4. Whether state tort claims for fraud and deceit which

arise from conduct occurring prior to the employment

relationship are preempted by the Railway Labor Act, 45

U.S.C. § 151 et seq.

ii

TABLE OF CONTENTS

Page

CRIBS INS PREGEINTGO ok cco snstccieundvaoeees i

CIES ND AAIW orbs as csc ete acerns ey eeameees 1

Fas ROR RPE soe 5b s a kev os hae eae ee eee ee 2

SEAT ES PO VORN ED «is scar ceeeiveuereeernewie 2

SIATEMENT OF THE CAGE... . 0.0.00 cen sneren ees 3

} BME PACTS ...cck evi 3

HN. FPROCKELINGS BELG os. ecu e esses eens 5

REASONS FOR GRANTING THE WRIT ........... 8

I. THE NINTH CIRCUIT’S ANALYSIS OF RAIL-

WAY LABOR ACT PREEMPTION OF STATE

TORT CLAIMS CONFLICTS WITH THE PRIN-

CIPLES OF LABOR LAW PREEMPTION

ARTICULATED BY THIS COURT............. 8

A. THE SUPREME COURT HAS APPLIED

THE SAME PRINCIPLES TO THE LMRA

AND) TU) THG Wade. sc chesccaeteeiee 9

B. THIS CASE ADDRESSES PREEMPTION

OF ISSUES REGARDING CLAIMS

WHICH ARE NOT BASED ON REPRE-

SENTATIONS OF SPECIFIC TERMS OF

THE CBA AS WELL AS CLAIMS WHICH

ARE BASED ON REPRESENTATIONS OF

SPECIFIC TERMS OF THE CBA......... 11

ili

TABLE OF CONTENTS - Continued

Page

C. THIS CASE RAISES A QUESTION OF

STATUTORY INTERPRETATION WITH

RESPECT TO WHETHER PRE-EMPLOY-

MENT FRAUD IS PREEMPTED BY THE

ee ake a8 Ware hs pie SORES eo ad ws ea) 9 0 3 13

Il. THE NINTH CIRCUIT CONFLICTS WITH

OTHER CIRCUITS REGARDING THE STAN-

DARD FOR RAILWAY LABOR ACT PREEMP-

TION OF STATE TORT CLAIMS............. 14

CONCLUSION

iv

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Alexander v. Gardner-Denver Co., 415 U.S. 36 [94

ee tee an sen a a clic alam eee Vo ey oF 16

Allis Chalmers Corp. v. Luecke, 471 U.S. 202 [105

let SS oc oo rest ees dee kcones tamer ec 11

Anderson v. Ford Motor Co., 803 F.2d 953 (8th Cir.

1986) cert. denied, 481 U.S. 1049 [107 S.Ct. 2181]

6 pH Ee Pla aro eri Dy pat err ee 10

Atchison, Topeka and Santa Fe Ry Co., v. Buell, 480

US. Sar fier SAR. POUGy CISG? .. 9, 15

Baldracchi v. Pratt & Whitney Aircraft Division, 814

eB Eo a ge: ER ee Pe ere ree eee 16

Beard v. Carrolton, 893 F.2d 117 (6th Cir. 1989)....... 15

Berda v. CBS Inc., 881 F.2d 20 (3rd Cir. 1989) cert.

denied, __ U.S. __ [110 S.Ct. 879] (1990).......... 9

Coppinger v. Metropolitan-North Commuter R.R., 861

eB Be ee eB ee ee re 16

Dougherty v. Parsec Inc., 872 F.2d 766 (6th Cir.

NR ae eter ee mine teen eee Ce nt 15

Edelman v. Western Airlines, Inc., 892 F.2d 839 (9th

SU UU ce hs Bc ee core een eary es Map erik vanes 7

J.1. Case Co. v. NLRB, 321 U.S. 332 [64 S.Ct. 576]

6 Senate a Ae i a n> eee eas ate Smee a ree 7, 8

Jackson v. Consolidated Rail Corp., 717 F.2d 1045 (7th

Cir. 1983) cert. denied, 465 U.S. 1007 [104 S.Ct.

PE Oooh a oe Picky dx Vere eeeeareue cnet: 14

Lingle v. Norge Division of Magic Chef, Inc., 486 U.S.

See COE Gets PTE CPEs cee een cee es passim

TABLE OF AUTHORITIES - Continued

Page

Magnuson v. Burlington Northern, Inc., 576 F.2d

1367 (9th Cir. 1977) cert. denied, 439 U.S. 930 [99

es TIE re oc heer oi ar ee ar 7

McAlester v. United Air Lines, Inc., 851 F.2d 1249

SO GE SUNN crs dan acdecassia tren es 16

Melanson v. United Airlines, 931 F.2d 558 (9th Cir.

TOR So cxdin de brane er ene rere cee eee 6, 7, 11, 12, 14

Merchant v. American S.S. Co., 860 F.2d 204 (6th Cir.

WS ke edad oa 0 eR ee Re Cee 14

Pan American World Airways v. Puchert, 472 US.

1061 [905 SC. 2693S) (CIGBE)... . 5 ook vec eeeeeccccce 15

Pennsylvania R.R. v. Day, 360 U.S. 548 [79 S.Ct.

SO NO es cs ne GS ee oe eee 13

Wells v. General Motors Corp., 881 F.2d 166 (5th Cir.

1989) cert. denied, US. __ [110 S.Ct. 1959]

6 NR S einer LA pina oe mito Me CA (Qunle f. 10

FEDERAL STATUTES

Oe Mes Tne 50a Cerne ee 2

ee Ades RES 6 ois cc hin ct eee eee 2

Se Bp PI oes sees Cs wee eee 3, 8

Ge Siac ROE So os os o's von eos tae ee 16

ok oe | Are Meme NRT: 16

Me Abts s ON as bk chk en ee 3, 5,9

ee Rha ME cc he eon eee 3, 6, 10, 11

STATE STATUTES

Cal fis ee Se... 0c hoe & 3,9, 32

Cal, Che Cae 8 WF ee... .. ee 2) te Se te

No.

r

In The

Supreme Court of the United States

October Term 1991

r

NICHKOL MELANSON,

Petitioner,

VS.

UNITED AIRLINES, INC.,

An Illinois Corporation,

Respondent.

°

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

r

PETITION FOR WRIT OF CERTIORARI

*

Petitioner Nichkol Melanson respectfully prays that a

writ of certiorari issue to review a decision of the United

States Court of Appeals for the Ninth Circuit entered on

April 24, 1991.

OPINIONS BELOW

The decision of the United States Court of Appeals

for the Ninth Circuit is reported at 931 F.2d 558. This

decision appears in the Appendix, infra. (App. 1.) The

Order of the United States District Court for the Northern

District of California granting United Airlines’ Motion to

Dismiss is not published. It appears in the Appendix,

infra. (App. 14)

JURISDICTION

Invoking federal question jurisdiction pursuant to 28

U.S.C. § 1331 United Airlines filed a petition for removal

of this action to the United States District Court for the

Northern District of California on November 14, 1988.

Invoking diversity jurisdiction pursuant to 28 U.S.C.

§ 1332 United Airlines filed a supplemental petition for

removal on December 19, 1988. On March 24, 1989 the

United States District Court for the Northern District of

California granted United Airlines’ motion for dismissal

and ordered entry of judgment as requested in said

motion on April 12, 1989. Judgment was entered on April

14, 1989.

The decision of the United States Court of Appeals

for the Ninth Circuit was issued on April 24, 1991. No

petition for rehearing was sought. This petition for a writ

of certiorari was filed within 90 days of that date. The

Court’s jurisdiction is invoked under 28 U.S.C. § 1254

subdivision (1).

STATUTES INVOLVED

The texts of the following statutes appear in the Appendix.

1. California Civil Code § 1709 (App. 30)

2. California Civil Code § 1710 (App. 30)

a

§ 301 of the Labor-Management Relations Act, 29

U.S.C. § 185 (App. 28)

4. Title I, § 1 of the Railway Labor Act, 45 U.S.C. § 151

(App. 16)

5. Title I, § 2 of the Railway Labor Act, 45 U.S.C. § 15la

(App. 18)

6. Title I, § 5 of the Railway Labor Act, 45 U.S.C. § 155

(App. 19)

9. Title II, § 201 of the Railway Labor Act, 45 U.S.C.

§ 181 (App. 24)

10. Title Il, § 202 of the Railway Labor Act, 45 U.S.C.

§ 182 (App. 24)

11. Title II, § 204 of the Railway Labor Act, 45 U.S.C

§ 184 (App. 25)

12. Title Il, § 205 of the Railway Labor Act, 45 US.C

§ 185 (App. 26)

=

STATEMENT OF THE CASE

I. THE FACTS

In late 1985 United Airlines (United) acquired Pan

American Airlines’ (Pan Am) Pacific routes. As a condi-

tion of the acquisition 1202 Pan Am flight attendants had

to voluntarily transfer to United by February 11, 1986.

Appellant Melanson had been a flight attendant for

nearly twenty-two years and was one of those whom

United recruited. In this action Melanson alleges that she

was induced to transfer by United’s representations that

the height and weight standards for United flight atten-

dants would be “waived” for Pan Am transferees. Melan-

son, who had gained weight from hormone treatments for

infertility, also alleges that she was told that United

authorized medical exceptions for flight attendants who

were on medication.

What United failed to disclose was that it was “waiv-

ing” the weight standards for hiring purposes only, but

would require strict compliance for purposes of continued

employment. United also failed to disclose that medical

exceptions were only authorized for flight attendants tak-

ing medication for life threatening diseases.

Prior to her transfer Melanson had informed United

that she was gaining weight from the hormone treatments

and she informed United that she would not transfer if

she were subject to weight requirements that would jeop-

ardize those treatments. Melanson was told, through

United agents, that United did not care about her weight

and she was hired in spite of the fact that she was

overweight by United’s standards.

In recruiting Pan Am transferees United communi-

cated directly with the flight attendants. Neither the

union which represented Pan Am employees nor the

union which represented United employees, took part in

the recruitment process.

Within six months of becoming a United employee

Melanson was suspended without pay and was forced to

stop the hormone treatments in order to lose enough

weight to avoid termination.

Melanson and several other Pan Am transferees

grieved their suspensions under the “minor dispute” pro-

visions of the RLA, as “ . . . unreasonable and arbitrary

application of its [United’s] weight program.” The arbi-

trator found that the weight program, which is incorpo-

rated into the CBA, was being properly applied.

However, due to United’s representations during the

recruitment process, the arbitratcr allowed certain excep-

tions for the grievants.

On or about September 2, 1988 Melanson filed suit in

California Superior Court for the City and County of San

Francisco alleging negligent or intentional misrepresenta-

tion, concealment and promise without intent to perform.

All three theories of fraud and deceit are codified under

Cal. Civ. Code §§ 1709 and 1710 (App. 30).

II. PROCEEDINGS BELOW

On November 14, 1988 United removed Melanson’s

action to the United States District Court for the Northern

District of California asserting federal question jurisdic-

tion. On November 19, 1988 United filed a supplemental

petition for removal asserting diversity jurisdiction.

Melanson did not seek remand.

On March 24, 1989 the United States District Court

for the Northern District of California granted United's

motion to dismiss pursuant to Federal Rule of Civil Pro-

cedure 12(b), on the ground that Melanson’s claims were

preempted by the Railway Labor Act 45 U.S.C. § 151 et

seg. Judgment was entered on April 14, 1989. Melanson

appealed the judgment to the United States Court of

Appeals for the Ninth Circuit. On April 24, 1991, after

oral argument, the court of appeals affirmed the district

court’s dismissal.

The court of appeals held that all three of Melanson’s

state law claims would “intrude” upon the collective .

bargaining system established under the Railway Labor

Act. Melanson v. United Airlines, 931 F.2d 558, 563 (9th Cir.

1991). (App. 11).

The court of appeals did not find that the theory of

“promise without intent to perform” required interpreta-

tion of the Collective Bargaining Agreement (CBA). How-

ever, it did find that this claim could not be litigated

without “reference” to the CBA because, “ ... as a

practical matter, proof of United’s intent not to perform

and its nonperformance lead inevitably to the CBA.”

Melanson, Id. at p.563. (App. 10).

The court of appeals found that in order to prevail on

her “misrepresentation” theory, Melanson would have to

show that the relevant provisions of the CBA differ sig-

nificantly from United’s representations regarding the

weight program. This would require what the court char-

acterized as “reference to and interpretation of the terms

of the CBA,” making the alleged tortious activity “... at

least ‘arguably governed’ by the CBA.” Melanson, Id. at

562-563. (App. 9).

In order to prevail on her “concealment” theory, the

court of appeals found that Melanson would have to

compare United’s representations to the relevant portions

of the weight program. This would also require “refer-

ence to and interpretation of the CBA.” Melanson, Id. at

563. (App. 9-10).

The Ninth Circuit declined to apply, by analogy,

cases discussing preemption under § 301 of the Labor-

Management Relations Act (LMRA), 42 U.S.C. § 185, on

the ground that the narrower test for § 301 preemption,

under Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399

(1988), is not necessarily determinative of preemption

under the RLA. Therefore, rather than consider whether

Melanson’s tort claims were “independent” of the CBA,

the court reviewed Melanson’s claims to determine

whether they were “minor disputes” under the RLA. The

court of appeals defined “minor disputes” as disputes

which “concern the interpretation or application of” the

CBA, Edelman v. Western Airlines, Inc., 892 F.2d 839, 843

(9th Cir. 1989), and are “inextricably intertwined with the

grievance machinery of” the CBA or the RLA, quoting

Magnuson v. Burlington Northern, Inc., 576 F.2d 1367.

The court did find that Melanson’s tort claims were

not the subject of a prior arbitration procedure, brought

under the “minor disputes” provisions of the RLA. The

grievances brought by Melanson and other Pan Am trans-

ferees alleged unreasonable and arbitrary application of

the weight program, while in this action Melanson alleges

that United fraudulently induced her to transfer by mis-

representing that the weight requirements would be

waived in her case. Melanson, 931 F.2d at 562 (App. 5-6).

The court rejected Melanson’s argument that her tort

claims were not preempted because she was not an

employee when the representations in question were

made. The court of appeals declined to hold that claims

arising from conduct occurring prior to the commence-

ment of a formal employment relationship are automat-

ically screened from the preemptive force of the RLA,

relying on J.J. Case Co. v. NLRB, 321 U.S. 332, 337-39

(1944) for the proposition that the CBA supersedes incon-

sistent individual employment contracts. The court

extended this reasoning beyond contract claims on the

ground that nearly any contract claim can be restated as a

tort claim. Id. 561 (App. 4).

= -_

REASONS FOR GRANTING THE WRIT

I.

THE NINTH CIRCUIT’S ANALYSIS OF RAILWAY

LABOR ACT PREEMPTION OF STATE TORT CLAIMS

CONFLICTS WITH THE PRINCIPLES OF LABOR LAW

PREEMPTION ARTICULATED BY THIS COURT.

Certiorari should be granted in this case because it

addresses several important issues regarding preemption

of state tort claims by the Railway Labor Act (RLA), 45

U.S.C. § 151 et seq.

Appellant Melanson states fraud and deceit claims

based on pre-employment representations made by

United Airlines. The primary issue is whether the same

principles for determining preemption of state tort

remedies should be applied to § 301 of the Labor Manage-

ment Relations Act (LMRA), 29 U.S.C. § 185, and to the

RLA.

The facts of this case raise that issue from the per-

spective of claims which are not based on representations

regarding specific terms of the CBA; claims which are

based on representations regarding specific terms of the

CBA and claims which did not arise from conduct which

occurred within the employment relationship.

The Supreme Court Has Applied The Same Principles

To The LMRA And To The RLA

The Supreme Court has not dealt directly with the

issue of RLA preemption of “independent” state law

remedies but it has articulated a theory of the limits of

federal labor law preemption which it has applied to both

the LMRA and the RLA. Both in Atchison, Topeka and Santa

Fe Ry Co. v. Buell, 480 U.S. 557 [107 S.Ct. 1410] which

addressed RLA preemption of Federal Employee Liability

Act claims, and in Lingle v. Norge Div. of Magic Chef, Inc.,

486 US. 399 [108 S.Ct. 1877] which addressed § 301

preemption of state tort claims, this Court has said:

This Court has, on numerous occasions,

declined to hold that individual employees are,

because of the availability of arbitration, barred

from bringing claims under federal statutes.

(citations omitted.) Although the analysis of the

question under each statute is quite distinct, the

theory running through these cases is that not-

withstanding the strong policies encouraging

arbitration, different considerations apply where

the employee's claim is based on rights arising out of

a statute designed to provide minimum substantive

guarantees to individual workers.

Lingle, 486 U.S. at 406 [108 S.Ct. at 1884].

Melanson’s claims do not arise out of statutes specifi-

cally designed to protect workers, but her claims do arise

out of statutes designed to provide minimum substantive

guarantees to all citizens. Cal.Civ.Code §§ 1709 & 1710

(App. 30). Several circuits have held that state tort claims

for fraud, which were “independent” of the Collective

Bargaining Agreement (CBA) were not preempted by

§ 301. See, e.g. Berda v. CBS Inc., 881 F.2d 20 (3rd Cir. 1989)

cert. denied, _ U.S. ____ [110 S.Ct. 879] (1990), (plaintiff

need only establish that CBS’ agents promised he

10

would not be laid off for a reasonable period of time

although they knew or were reckless in not knowing that

CBS was planning a reduction in force that would affect

him); Wells v. General Motors Corp., 881 F.2d 166 (5th Cir.

1989) cert. denied, U.S. __ [110 S.Ct. 1959] (1990),

(examination of the terms of a severance agreement in

order to determine what the truthful representations

should have been, established relevance of the agreement

but not necessarily substantial dependence for preemp-

tion purposes); Anderson v. Ford Motor Co., 803 F.2d 953

(8th Cir. 1986) cert. denied, 481 U.S. 1049 [107 S.Ct. 3242]

(Proof that Ford fraudulently induced employment by

misrepresenting that new hirees would not be “bumped”

by “preferential hirees” does not depend on the existence

of any contractual relationship nor do the standards for

judging fraudulent misconduct derive from any contrac-

tually established expectations of the parties).

To date, there has been nothing in this Court’s treatment

of either § 301 or the RLA to suggest that the two statutes

should not be subject to the same basic principles for deter-

mining preemptive effect on state torts. Indeed, both the

standard articulated in Lingle for § 301 preemption and Title

Il, § 205 of the RLA, 45 U.S.C. § 185 (App. 26) preempt claims

which require “interpretation” of the CBA. In this case,

however, the Ninth Circuit did not confine the RLA to

preemption of state torts which require “interpretation.” As

used by the Supreme Court in Lingle, “interpretation” means

that “ . . . pertinent principles of state law required con-

struing the relevant collective bargaining agreement.” Lingle,

486 US. at 404 ftnt. 7 [108 S.Ct. at 1882 ftnt. 7].!

1 The Ninth Circuit’s holding in this case was not based on

either “application of the CBA,” or “inextricably intertwined

(Continued on following page)

1]

B. This Case Addresses Preemption Issues Regarding

Claims Which Are Not Based On Representations

Of Specific Terms Of The CBA As Well As Claims

Which Are Based On Representations Of Specific

Terms Of The CBA

Melanson alleges that United promised it would

“waive” the weight program for Pan Am flight atten-

dants. Fraud and deceit claims based on this allegation do

not stem from any representations about specific terms of

the weight program and do not require that the court

“interpret” the CBA. At most, the court would make a

“tangential reference” to the CBA when comparing

United’s representations to its subsequent conduct. See

Allis-Chalmers Corp. v. Luecke, 471 U.S. 202, at 211, [105

S.Ct. 1904, at 1911] (1985).

Melanson also alleges that during the recruitment

period United misrepresented that the medical exception

was available to all flight attendants taking medication.

United subsequently denied Melanson’s request for a

medical exception on the ground that the exception was

limited to medications for life threatening diseases. This

(Continued from previous page)

with the grievance procedure.” 45 U.S.C. § 185. The court did

not use either of those terms in stating its reasons for preemp-

tion. Furthermore, the court found that Melanson’s claims had

not previously been arbitrated because the issue put before the

System Board of Adjustment was “misapplication of a work

rule” (emphasis added) whereas in this case Melanson claimed

that United fraudulently induced her to transfer to United

Airlines by misrepresenting that weight requirements would

be waived in her case. Melanson, 931 F.2d at 561.

12

allegation raises fraud and deceit claims based on repre-

sentations regarding a specific term of the weight pro-

gram, which is incorporated into the CBA.

Although these two allegations of misrepresentation

raise different issues with regard to RLA preemption of

state torts, neither allegation requires “interpretation” as

defined by the Supreme Court in Lingle v. Norge. As in

Lingle the inquiry is purely factual, pertaining to the

conduct and motivation of the employee and the

employer. Lingle, 486 U.S. at 404, [108 S.Ct. at 1882].

The Ninth Circuit declined to follow Lingle in this

case and imposed a significantly broader preemptive

standard on the RLA than the Supreme Court did on

§ 301. For example, the Ninth Circuit found that Melan-

son’s claim of “promise without intent to perform” was

preempted by the RLA although it did not find that this

claim required “interpretation” of the CBA. Melanson, 931

F.2d at 563.

The Ninth Circuit did find that Melanson’s claims of

“negligent or intentional misrepresentation” and “con-

cealment” require “reference to and interpretation of the

terms of the CBA” Id., 563 but in this case “interpreta-

tion” does not mean what it meant in Lingle, that the

“... pertinent principles of state law required construing

the relevant collective bargaining agreement.” Lingle, 486

U.S. at 404 ftnt. 7 [108 S.Ct. at 1882 ftnt. 7]. Cal.Civ. Code

Sections 1709 and 1710 do not hold a defendant liable for

misrepresentation or concealment of the court's interpreta-

tion of the CBA. To the extent that “resolution of the

dispute,” refers to the CBA, the relevant inquiry will be

into United’s own interpretation of the weight program at

13

the time it made the representations in question, regard-

less of whether the court would have “construed” it the

same way. It is United’s interpretation, not the court’s,

that will determine whether United misrepresented or

concealed a material fact, or made a promise it had no

intention of performing.

C. This Case Raises a Question of Statutory Interpreta-

tion With Respect to Whether Pre-Employment

Fraud is Preempted by the RLA

This case also presents a third issue regarding RLA

preemption. Melanson’s claims of “misrepresentation,”

“concealment” and “promise without intent to perform”

grow out of United’s pre-employment conduct. The Rail-

way Labor Act is expressly limited to conflicts between

employer and employee. The Supreme Court has

extended preemption to claims brought after employ-

ment, when “ the claim itself arises out of the

employment relationship which Congress regulated.”

Pennsylvania R.R. v. Day, 360 U.S. 548, 551-52 [79 S.Ct.

1322, 1324-5]. However, a claim based on pre-employ

ment conduct does not arise out of the employment rela-

tionship.

The Court of Appeals for the Ninth Circuit held that

Melanson’s employment status was not determinative

because the effect on the federal labor scheme of allowing

individual agreements that conflict with the CBA would

be the same even if the agreement was reached prior to

employment. However, in this action Melanson does not

seek to enforce a separate agreement.

The Ninth Circuit rejected this distinction on the

ground that nearly any contract claim can be restated as a

14

tort claim. Melanson, 931 F.2d at 561 (App. 5). However,

although they may be based on the same or similar facts,

the two kinds of claims have a very different impact on

the federal labor scheme. Conflicting agreements could

affect the orderly functioning of the labor force, but hold-

ing an employer financially accountable for its tortious

conduct, could not.

\

Il.

THE NINTH CIRCUIT CONFLICTS WITH OTHER

CIRCUITS REGARDING THE STANDARD FOR RAIL-

WAY LABOR ACT PREEMPTION OF STATE TORT

CLAIMS

The similarity between the standards for preemption

under the RLA and § 301 of the LMRA is highlighted by

the decisions and the dictum of various circuits.

Prior to the decision in Lingle, the Seventh Circuit

held that a state tort action for retaliatory termination

was preempted by the RLA because the defense would be

based on good cause for termination. Jackson v. Consoli-

dated Rail Corp., 717 F.2d 1045 (7th Cir. 1983), cert. denied,

465 U.S. 1007 [104 S.Ct. 1000] (1984). More recently, how-

ever, the Court of Appeals for the Sixth Circuit observed,

in dictum, that the reasoning employed in Jackson has

been repudiated by the Supreme Court's decision in Lin-

gle. Merchant v. American S.S. Co., 860 F.2d 204, 208 (6th

Cir. 1988). In Merchant the court also observed, in dictum,

that the Supreme Court’s preemption analysis in Buell,

would not have been different if the putative tort claim

had arisen under state law rather than federal law. Mer-

chant, 860 F.2d at 209.

be

The Court of Appeals for the Sixth Circuit has turned

its analysis of preemption of state torts on whether

breach of contract is an essential element of the state tort.

In so doing it has not distinguished between § 301 and

the RLA. In Beard v. Carrolton, 893 F.2d 117 (6th Cir. 1989)

the court held that the Appellant’s tort claim for wrong-

ful interference with contract was preempted by the RLA

“. . . because Kentucky makes breach of contract an

essential element of the tort.” (citations omitted.) Beard,

Id., at 122..The court distinguished its decision in Dough-

erty v. Parsec Inc., 872 F.2d 766 (6th Cir. 1989) on the

ground that Ohio law does not require breach of contract

as an essential element. Although the court speculated

that “The standards under the two statutes [§ 301 and the

RLA] may not be identical,” (emphasis added) no distinc-

tion was made in the court of appeals’ analysis. Beard, 893

F.2d at 122.

The Court of Appeals for the Second Circuit has also

analyzed § 301 and RLA preemption interchangeably.

That court relied on the Supreme Court's decision in Pan

American World Airways v. Puchert, 472 U.S. 1001, 105 S.Ct.

2693, (1985) when it said, in dictum that the RLA does not

preempt all state law claims for retaliatory discharge.

Puchert was a decision by the Supreme Court of Hawaii,

holding that a state prohibition of discharge in retaliation

for filing a worker’s compensation claim was not pre-

empted by the RLA. The United States Supreme Court

dismissed the appeal for want of federal question juris-

diction. As interpreted by the Court of Appeals for the

Second Circuit, “If the Hawaii law were preempted by

the RLA the case would necessarily have presented the

16

Court with a substantial federal question.” Baldracchi v.

Pratt & Whitney Aircraft Div., 814 F.2d 102 (2d Cir. 1987).

The Court of Appeals for the Second Circuit has also

held that a federal civil rights claim under 42 U.S.C.

§ 1983 is not preempted by the RLA because the civil

rights claim has “ ‘a legally independent origin’ ” even

when dismissal was upheld in RLA arbitration proceed-

ings. Coppinger v. Metro-North Commuter R.R., 861 F.2d 33,

36 (2d Cir. 1988), quoting from Alexander v. Gardner-

Denver Co., 415 U.S. 36, 94 S.Ct. 1011 (1973). Similarly, the

Court of Appeals for the Tenth Circuit has held that the

RLA does not preempt a claim of racial discrimination

under 42 U.S.C. § 1981, in spite of the fact that the claim

was based on the airline’s disciplinary actions. McAlester

v. United Air Lines, Inc., 851 F.2d 1249 (10th Cir. 1988).

III.

CONCLUSION

For these various reasons, this petition for certiorari

should be granted. The Ninth Circuit’s ruling extends the

preemptive effect of the RLA well beyond the preemptive

effect of § 301, and would deprive employees of air

carriers and railroads of any forum for claims based on

the fraudulent conduct of their employers.

Respectfully submitted,

EpitH J. BENAy

Counsel of Record for Petitioner

345 Franklin Street

San Francisco, California 94102

Telephone: (415) 241-7286

App. 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 89-15566

NicHkKOoL MErLANSON, ss

Plaintiff-Appellant,

V.

D.C. No.

CV-88-4551-CAL

Unitep Air Lines, INc.,

OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of California

Charles A. Legge, District Judge, Presiding

Argued and Submitted

June 6, 1990 - San Francisco, California

Filed April 24, 1991

Before: William C. Canby, Jr, John T. Noonan, Jr. and

Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Canby

OPINION

CANBY, Circuit Judge:

Appellant Nichkol Melanson appeals the dismissal of

her state law tort action against United Air Lines, Inc.

(“United”) for negligent and intentional misrepresenta-

tion, concealment, and promise without intent to per-

form. Melanson originally filed this action in state court,

but United removed it to federal court, asserting diversity

jurisdiction under 28 U.S.C. § 1332 and federal question

jurisdiction under 28 U.S.C. § 1331 and 45 U.S.C. § 151.

United then moved to dismiss the case. The district court

App. 2

granted United’s motion, finding that Melanson’s claims

are preempted by the Railway Labor Act (“RLA”), 45

U.S.C. § 151, et seq. We affirm.

FACTS

In 1985, United purchased the Pacific division of Pan

American Airlines (“Pan Am”). As part of the acquisition,

United agreed to hire 1202 of Pan Ams flight attendants

to work the newly acquired routes. In September, 1985,

the Association of Flight Attendants (“AFA”) opened

negotiations with United over employment conditions for

the transferring flight attendants. A few weeks later,

United notified the flight attendants of the acquisition

and invited them to transfer to United. United also

informed the flight attendants that work rules and

seniority integration covering their new employment at

United were being negotiated with the AFA, and sent

them a description of United’s weight requirements for

flight attendants. In December, 1985, the AFA ratified the

collective-bargaining agreement (“CBA”) which included

the terms and conditions for the transfer of employees

from Pan Am to United. The weight program is incorpo-

rated in the CBA as a term and condition of employment

between United and members of the bargaining unit.

Melanson was among those Pan Am flight attendants

eligible to transfer to United. She had served as a flight

attendant for nearly twenty-two years. She alleges that

United, while recruiting her, indicated that the weight

requirements would not apply to the transferring flight

attendants. At the time, Melanson was undergoing hor-

mone treatment for infertility that caused her to gain

App. 3

weight. She disclosed this fact to United and informed

the company that she would not transfer if she were

subject to weight requirements that would jeopardize her

infertility treatment. Through its agents, United assured

Melanson that it was not concerned with her weight. In

reliance upon this representation, Melanson transferred

to United.

Shortly after Melanson became a United employee,

she was suspended without pay for fourteen months for

failing to comply with United’s weight policy. At the time

of her suspension, Melanson was a bargaining unit

employee covered by the CBA. Along with other flight

attendants, Melanson brought a complaint regarding the

application of United’s weight program in her case before

the System Board of Adjustment (“Board”) as required by

the CBA and the RLA, 45 U.S.C. § 184. After a hearing,

the Board reinstated Melanson and awarded her back

pay, but required her to submit to an individualized

weight program. Melanson then stopped her infertility

treatments in order to lose weight to avoid termination.

This action followed.

DISCUSSION

A. Standard of Review

We review de novo the district court’s dismissal of

Melanson’s claims and its statutory interpretation of the

RLA. See Grote v. Trans World Airlines, Inc., 905 F 2d 1307,

1309 (9th Cir.), cert. denied, 111 S. Ct. 386 (1990); Lewy v.

Southern Pacific Transp. Co., 799 F.2d 1281, 1286 (9th Cir.

1986). In reviewing the dismissal granted under Fed. R.

App. 4

Civ. P. 12(b)(6), we accept as true the allegations of

Melanson’s complaint. Grote, 905 F.2d at 1308 n.1.

B. The Effect of Melanson’s Employment Status

Melanson first argues that because she was not an

employee of United when first informed that she would

not be subject to United’s weight program, this dispute

did not arise within an employment context and is not

covered by the CBA or the RLA. We decline to hold that

claims arising from conduct occurring prior to the com-

mencement of a formal employment relationship are

automatically screened from the preemptive force of the

RLA.

Through the federal labor scheme, Congress has

established a system of collective bargaining. Allowing

an employee or employer, by virtue of an individual

agreement, to establish an employment status different

from that of other employees would undermine the effi-

cacy of collective bargaining. Accordingly, the Supreme

Court has ruled that the CBA supersedes inconsistent

individual employment contracts. See J.J. Case Co. v.

NLRB, 321 U.S. 332, 337-39 (1944); see also Order of Raiiroad

Telegraphers v. Railway Express Agency, 321 U.S. 342, 346-47

(1944) (The principles of J.J. Case Co. apply in the RLA

context). The effect on the federal labor scheme of allow-

ing individual agreements that conflict with the CBA

would be the same whether the agreement is reached

prior to or during a formal employment relationship. The

timing of the agreement or alleged tortious act, then, is

App. 5

not necessarily determinative.' It is the relationship of the

claim to the CBA, regardless of the plaintiff's employ-

ment status, that guides the preemption analysis. The

pertinent question, therefore, is whether Melanson’s

claims are preempted.?

C. Effect of Prior Arbitration

United argues that Melanson’s claim was the subject

of a prior arbitration procedure and cannot be raised

again in this action. We disagree. The issue before the

Board was:

Whether the company ha[d] violated the Collec-

tive Bargaining Agreement by imposing disci-

pline, up to and including termination, on

several of [the] former Pan Am flight attendants,

through an unreasonable and arbitrary applica-

tion of its weight program .

1 This reasoning is not limited to contract claims. Nearly

any contract claim can be restated as a tort claim. The RLA’s

grievance procedure would become obsolete if it could be

circumscribed by artful pleading. See Magnuson v. Burlington

Northern, Inc., 576 F.2d 1367, 1369 (9th Cir.), cert. denied, 439

U.S. 930 (1978).

2 Melanson also contends that the CBA did not apply to

her at the time of the alleged misrepresentation because the

AFA did not represent her in the CBA negotiations until she

became a United employee and joined the AFA. This argument

is without merit. The Supreme Court has stated that “[t]he

labor organization chosen to be the representative of the craft

or class of employees is . . . chosen to represent all of its

members, regardless of their union affiliations or want of

them.” Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192,

200 (1944).

App. 6

Decision of the System Board of Adjustment, Application

of United Weight Program to Former Pan American

Flight Attendants 1 (Jan. 16, 1988). The issue in this

appeal, however, is different. Rather than alleging a mis-

application of a work rule, as she did before the Board,

Melanson argues here that United fraudulently induced

her to transfer by misrepresenting that the weight

requirements would be waived in her case. This issue was

not fully litigated before the Board. Again, the real ques-

tion is whether Melanson’s claims are preempted by the

RLA.

D. Preemption

Congress enacted the RLA to promote stability in

labor-management relations by providing a framework

for resolving labor disputes in the railroad industry. See

Atchison, Topeka & Santa Fe Railway Co. v. Buell, 480 U.S.

557, 562 (1987). Title Il of the RLA extends the RLA’s

coverage to the airline industry. 45 U.S.C. § 181. Congress

specifically intended the RLA to keep airline labor dis-

putes out of the courts. See Lewy, 799 F.2d at 1289. Conse-

quently, the RLA provides for mandatory administrative

grievance procedures as the exclusive remedy in claims

arising from “minor disputes” under collective-bargain-

ing agreements. See Andrews v. Louisville & N. R. Co., 406

U.S. 320, 322-23 (1972). “Minor disputes” are the “griev-

ances that arise daily between employees and carriers

regarding rates of pay, rules and working conditions.”

Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89, 94 (1978).

We have also defined “minor disputes” as those which

are “arguably” governed by the CBA or have a “not

App. 7

obviously insubstantial” relationship to the labor con-

tract, Magnuson, 576 F.2d at 1369-70, “are ‘inextricably

intertwined with the grievance machinery of the collec-

tive bargaining agreement and of the RLA,’ ” Edelman v.

Western Airlines, Inc., 892 F.2d 839, 843 (9th Cir. 1989)

(quoting Magnuson, 576 F.2d at 1369), or which involve

the interpretation of a current collective-bargaining

agreement. See International Association of Machinists &

Aerospace Workers v. Republic Airlines, 761 F.2d 1386, 1390

(9th Cir. 1985); Schroeder v. Trans World Airlines, Inc., 702

F.2d 189, 191 (9th Cir. 1983).

In resisting preemption, Melanson asks us to apply,

by analogy, cases discussing preemption under § 301 of

the Labor-Management Relations Act, 42 U.S.C. § 185.

She cites Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.

399 (1988) in support of her argument that state law

remedies “independent” of the CBA are not preempted

by § 301. Lingle held that claims are “independent” when

“the state-law claim can be resolved without interpret-

ing” the collective bargaining agreement. Id. at 410. We

have made clear, however, that the narrower test for § 301

preemption under Lingle is not necessarily determinative

of preemption under the RLA because “preemption

under the RLA is broader than under § 301.” Grote v.

Trans World Airlines, Inc., 905 F.2d 1307, 1310 (9th Cir.

1990). Thus, some claims that might escape preemption

under Lingle and § 301 may nevertheless by preempted

under the RLA.?

3 An example of the distinction may be drawn from two

cases that predate Lingle. Melanson relies in part on Tellez v.

(Continued on following page)

App. 8

We therefore review Melanson’s claims to determine

whether they are “minor disputes” under the RLA; that

is, whether they “ ‘concern the interpretation or applica-

tion of’ ” the CBA. Edelman, 892 F.2d at 843 (quoting Int'l

Ass'n of Machinists v. Aloha Airlines, Inc., 776 F.2d 812, 815

(9th Cir. 1985)). A claim is also considered a “minor

dispute” if it is “ ‘inextricably intertwined with the griev-

ance machinery of’ ” the CBA or RLA. Id., (quoting Mag-

nuson, 576 F.2d at 1360).

Melanson asserts three theories under California law

which comprise her cause of action for fraud: 1) negligent

or intentional misrepresentation; 2) concealment; and 3)

promise without intent to perform. To prevail on her

misrepresentation theory, Melanson must show, inter alia,

that United made a false representation of material fact.

See Univeral [sic] By-Products, Inc. v. City of Modesto, 43

(Continued from previous page)

Pacific Gas & Elec. Co., 817 F.2d 536, 538-39 (9th Cir.), cert.

denied, 484 U.S. 908 (1987). In Tellez, we found that section 301

did not preempt claims of defamation and intentional infliction

of emotional distress because the claims arose from the

employer’s distribution of a letter alleging that the plaintiff

had bought cocaine on the job. We held that the claims could

be resolved without reference to the CBA.

Tellez is to be contrasted with Beers v. Southern Pacific

Transp. Co., 703 F.2d 425, 428-29 (9th Cir. 1983), in which we

held that the RLA preempted a state law claim for intentional

infliction of emotional distress arising from harassment on the

job, because the claim could have been made the subject of

RLA grievance arbitration.

As we point out later in the text, however, Melanson’s

claims do not even meet the standard of Tellez; they cannot be

resolved without reference to the CBA.

App. 9

Cal.App.3d 145, 151, 117 Cal. Rptr. 525, 528 (1974); Cal.

Civ. Code §§ 1709, 1710. To demonstrate the falsity of

United’s alleged representations regarding its weight pro-

gram, Melanson must show that the relevant provisions

of the CBA differ significantly from those representa-

tions. This showing requires reference to and interpreta-

tion of the .erms of the CBA. Resolution of this

misrepresentation claim, then, depends on an analysis of

the CBA, and the alleged tortious activity is at least

“arguably governed” by the CBA. Therefore, the district

court properly dismissed Melanson’s misrepresentation

claim as preempted.

The elements of Melanson’s second fraud claim, con-

cealment, are: 1) suppression of material fact; 2) by one

who is bound to disclose it, or who gives information of

other facts which are likely to mislead for want of com-

munication of that fact; 3) with intent to deceive a person

unaware of the concealed fact and who would not have

acted had he known of the fact. Cal. Civ. Code §§ 1709,

1710. Melanson contends that United improperly con-

cealed its intention to waive its weight requirements for

hiring purposes only and to reinstate the program once

the new flight attendants were hired. She also alleges that

United fraudulently concealed the fact that medical

exceptions to the weight program were limited to life-

threatening situations and did not extend to weight gain

caused by medication or medical treatment.

To determine whether United concealed a material

fact from Melanson requires a comparison of United's

representations to Melanson with the terms of the weight

program in the CBA. Thus, as the misrepresentation

App. 10

claim, this claim requires reference to and interpretation

of the CBA. Melanson’s concealment claim is preempted.

Melanson’s final fraud theory under California law is

promise without intent to perform. To establish this

claim, Melanson must prove that United made a promise

about a material matter, with no intention of honoring

that promise, that induced her to take action she other-

wise would not have taken. See Cal. Civ. Code §§ 1709,

1710, see also Cicone v. URS Corp., 183 Cal.App.3d 194, 203,

227 Cal. Rptr. 887, 892 (1986); Miller v. National American

Life Ins. Co. of California, 54 Cal.App.3d 331, 338, 126 Cal.

Rptr. 731, 734 (1976). “A promise to do something neces-

sarily implies the intention to perform, and where such

intention is absent, there is an implied misrepresentation

of fact, which is actionable fraud.” 5 B. Witken, Summary

of California Law § 685 (9th ed. 1988).

This claim presents a somewhat closer question, but

we conclude that Melanson cannot prove the elements of

this claim without reference to the CBA or to conduct

governed by the CBA and its grievance machinery. It is

true that the representations United made to Melanson

and her reliance on those representations can be estab-

lished without reference to the CBA. But as a practical

matter, proof of United’s intent not to perform and its

nonperformance lead inevitably to the CBA. The weight

standards that United enforced are incorporated into the

CBA. That enforcement constituted the repudiation of

United’s alleged promise to Melanson, and it is that repu-

diation that permits the trier of fact to infer that United

never intended to perform its promise to Melanson. “The

subsequent repudiation relates back to the original prom-

ise.” Cicone v. URS Corp., 183 Cal.App.3d 194, 203, 227

App. 11

Cal.Rptr. 887, 892 (1986). If the CBA in fact guaranteed

Melanson an exemption from the weight requirements,

her claim would clearly be affected, if not defeated. Her

claim can scarcely be litigated without reference to the

CBA.

All three of Melanson’s state law claims would

intrude, then, upon the collective bargaining system

established by Congress under the RLA. Even under the

narrower preemption test of section 301, we held similar

claims preempted in Bale v. General Telephone Co. of Califor-

nia, 795 F2d 775 (9th Cir. 1986). There, two workers

claimed fraud and misrepresentation by the employer in

representing that they, as temporary employees, would

obtain permanent status after six months, when the CBA

provided otherwise. We said:

In order to prove their fraud and negligent mis-

representation claims, [plaintiffs] would be

required to show that the terms of the collective

bargaining agreement differed significantly

from the individual employment contracts they

believed they had made. Resolution of their

state tort claims is therefore “substantially

dependent upon analysis of the terms of an

agreement made between the parties in a labor

contract.”

Id. at 780 (quoting Allis-Chalmers v. Lueck, 471 U.S. 202,

220 (1985)). The same considerations compel preemption

here, even more strongly. The entire “minor dispute”

resolution system of the RLA was intended to provide

prompt resolution, without resort to the courts, of dis-

putes arising out of the employment relation. Edelman,

892 F.2d at 843, 45 U.S.C. § 15la. Melanson’s claims are

encompassed by that purpose.

App. 12

CONCLUSION

The district court properly held that Melanson’s state

law claims are preempted by the RLA. We therefore

affirm the judgment.

AFFIRMED.

App. 13

SEYFARTH, SHAW, FAIRWEATHER & GERALDSON

WILLIAM J. DRITSAS

TYLER A. BROWN

One Post Street, Suite 2450

San Francisco, California 94104

(415) 397-2823

Attorneys for Defendant

UNITED AIR LINES, INC.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

NICH <OL MELANSON, )

ec ) Case No.

Plaintiff, =) © gg 4551 CAL

v. ) JUDGMENT BY

UNITED AIR LINES, INC.) THE COURT

and DOES I to XX, inclusive, "

) (Filed April 12, 1989)

Defendants. )

)

This Court, having on March 24, 1989 granted Defen-

dant United Air Lines, Inc.’s Motion for dismissal as to

Plaintiff's Complaint and having ordered entry of judg-

ment as requested in said motion.

IT IS ORDERED, ADJUDGED AND DECREED that

this action be and hereby is dismissed with prejudice in

its entirety and that judgment is hereby entered in favor

of Defendant and against Plaintiff.

DATED: April 12, 1989

/s/ Charles A. Legge

The Honorable Charles A. Legge

Northern District Court Judge

ENTERED IN CIVIL

DOCKET 4/14, 1989

App. 14

SEYFARTH, SHAW, FAIRWEATHER & GERALDSON

WILLIAM J. DRITSAS

TYLER A. BROWN

One Post Street, Suite 2450

San Francisco, California 94104

(415) 397-2823

Attorneys for Defendant

UNITED AIR LINES, INC.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

NICHKOL MELANSON, ) Case No.

Plaintiff, C 88 4551 CAL

o ) ORDER ON

) MOTION TO

UNITED AIR LINES, INC; ) DISMISS

and DOES I to XX, inclusive, ete

) (Filed April 12, 1989)

Defendants. )

)

Having come on for hearing before this Court on

March 24, 1989 at 9:30 a.m., or as soon thereafter as the

matter was hear, and having considered the record in

this matter, and the arguments and evidence presented by

the parties to this action, by and through their attorneys

of record, and having stated the reasons for the instant

ruling in open Court,

IT IS HEREBY ORDERED that:

(1) Defendant’s motion to dismiss be and hereby is

GRANTED in its entirety.

(2) That this action be and hereby is dismissed with

prejudice, and

App. 15

(3) That judgment be entered in favor of Defendant

and against Plaintiff.

DATED: April 12, 1989

/s/ Charles A. Legge

The Honorable Charles A. Legge

Northern District Court Judge

App. 16

45 U.S.C. § 151. Definitions; short title

When used in this chapter and for the purposes of

this chapter -

First. The term “carrier” includes any express com-

pany, sleeping-car company, carrier by railroad, subject to

subtitle IV to Title 49, and any company which is directly

or indirectly owned or controlled by or under common

control with any carrier by railroad and which operates

any equipment or facilities or performs any service (other

than trucking service) in connection with the transporta-

tion, receipt, delivery, elevation, transfer in transit, refrig-

eration or icifg, storage, and handling of property

transported by railroad, and any other receiver, trustee,

or other individual or body, judicial or otherwise, when

in the possession of the business of any such “carrier”:

Provided, however, That the term “carrier” shall not

include any street, interurban, or suburban electric rail-

way, unless such railway is operating as a part of a

general steam-railroad system of transportation, but shall

not exclude any part of the general steam-railroad system

of transportation now or hereafter operated by any other

motive power. The Interstate Commerce Commission is

authorized and directed upon request of the Mediation

Board or upon complaint of any party interested to deter-

mine after hearing whether any iine operated by electric

power falls within the terms of this proviso. The term

“carrier” shall not include any company by reason of its

being engaged in the mining of coal, the supplying of

coal to a carrier where delivery is not beyond the mine

tipple, and the operation of equipment or facilities there-

for, or in any of such activities.

App. 17

Second. The term “Adjustment Board” means the

National Railroad Adjustment Board created by this

chapter.

Third. The term “Mediation Board” means the

National Mediation Board created by this chapter.

Fourth. The term “commerce” means commerce

among the several States or between any State, Territory,

or the District of Columbia and any foreign nation, or

between any Territory or the District of Columbia and

any State, or between any Territory and other Territory, or

between any Territory and the District of Columbia, or

within any Territory or the District of Columbia, or

between points in the same State but through any other

State or any Territory or the District of Columbia or any

foreign nation.

Fifth. The term “employee” as used herein includes

every person in the service of a carrier (subject to its

continuing authority to supervise and direct the manner

of rendition of his service) who performs any work

defined as that of an employee or subcrdinate official in

the orders of the Interstate Commerce Commission now

in effect, and as the same may be amended or interpreted

by orders hereafter entered by the Commission pursuant

to the authority which is conferred upon it to enter orders

amending or interpreting such existing orders: Provided,

however, That no occupational classification made by

order of the Interstate Commerce Commission shall be

construed to define the crafts according to which railway

employees may be organized by their voluntary action,

nor shall the jurisdiction or powers of such employee

Organizations be regarded as in any way limited or

App. 18

defined by the provisions of this chapter or by the orders

of the Commission.

The term “employees” shall not include, any individ-

ual while such individual is engaged in the physical

operations consisting of the mining of coal, the prepara-

tion of coal, the handling (other than movement by rail

with standard railroad locomotives) of coal not beyond

the mine tipple, or the loading of coal at the tipple.

Sixth. The term “representative” means any person

or persons, labor union, organization, or corporation des-

ignated either by a carrier or group of carriers or by its or

their employees to act for it or them.

Seventh. The term “district court” includes the

United States District Court for the District of Columbia;

the term “court of appeals” includes the United States

Court of Appeals for the District of Columbia.

This chapter may be cited as the “Railway Labor

Act.”

45 U.S.C. § 15la. General purposes

The purposes of the chapter are: (1) To avoid any

interruption to commerce or to the operation of any car-

rier engaged therein; (2) to forbid any limitation upon

freedom of association among employees or any denial,

as a condition of employment or otherwise, of the right of.

employees to join a labor organization: (3) to provide for

the complete independence of carriers and of employees

App. 19

in the matter of self-organization to carry out the pur-

poses of this chapter: (4) to provide for the prompt and

orderly settlement of all disputes concerning rates of pay,

rules, or working conditions; (5) to provide for the

prompt and orderly settlement of all disputes growing

out of grievances or out of the interpretation of applica-

tion of agreements covering rates of pay, rules, or work-

ing conditions.

45 U.S.C. § 155. Functions of Mediation Board

First, Disputes within jurisdiction of Mediation Board

The parties, or either party, to a dispute between an

employee or group of employees and a carrier may

invoke the services of the Mediation Board in any of the

following cases:

(a) A dispute concerning changes in rates of pay,

rules or working conditions not adjusted by the parties in

conference.

(b) Any other dispute not referable to the National

Railroad Adjustment Board and not adjusted in confer-

ence between the parties or where conferences are

refused.

The Mediation Board may proffer its services in case

any labor emergency is found by it to exist at any time.

In either event the said Board shall promptly put

itself in communication with the parties to such contro-

versy, and shall use its best efforts, by mediation, to bring

App. 20

them to agreement. If such efforts to bring about an

amicable settlement through mediation shall be unsuc-

cessful, the said Board shall at once endeavor as its final

required action (except as provided in paragraph third of

this section and in section 160 of this title) to induce the

parties to submit their controversy to arbitration, in

accordance with the provisions of this chapter.

If arbitration at the request of the Board shall be

refused by one or both parties, the Board shall at once

notify both parties in writing that its mediatory efforts

have failed and for thirty days thereafter, unless in the

intervening period the parties agree to arbitration, or an

emergency board shall be created under section 160 of

this title, no change shall be made in the rates of pay,

rules, or working conditions or established practices in

effect prior to the time the dispute arose.

Second, Interpretation of agreement.

In any case in which a controversy arises over the

meaning or the application of any agreement reached

through mediation under the provisions of this chapter,

either party to the said agreement, or both, may apply to

the Mediation Board for an interpretation of the meaning

or application of such agreement. The said Board shall

upon receipt of such request notify the parties to the

controversy, and after a hearing of both sides give its

interpretation within thirty days.

App. 21

Third. Duties of Board with respect to arbitration of

disputes; arbitrators; acknowledgment of agree-

ment; notice to arbitrators; reconvening of arbi-

trators; filing contract with Board; custody of

records and documents

The Mediation Board shall have the following duties

with respect to the arbitration of disputes under section

157 of this title:

(a) On failure of the arbitrators named by the parties

to agree on the remaining arbitrator or arbitrators within

the time set by section 157 of this title, it shall be the duty

of the Mediation Board to name such remaining arbitrator

or arbitrators. It shall be the duty of the Board in naming

such arbitrator or arbitrators to appoint only those whom

the Board shall deem wholly disinterested in the contro-

versy to be arbitrated and impartial and without bias as

between the parties to such arbitration. Should, however,

the Board name an arbitrator or arbitrators not so disin-

terested and impartial, then, upon proper investigation

and presentation of the facts, the Board shall promptly

remove such arbitrator.

If an arbitrator named by the Mediation Board, in

accordance with the provisions of this chapter, shall be

removed by such Board as provided by this chapter, or if

such an arbitrator refuses or is unable to serve, it shall be

the duty of the Mediation Board, promptly, to select

another arbitrator, in the same manner as provided in this

chapter for an original appointment by the Mediation

Board.

(b) Any member of the Mediation Board is autho-

rized to take the acknowledgment of an agreement to

App. 22

arbitrate under this chapter. When so acknowledged, or

when acknowledged by the parties before a notary public

or the clerk of a district court or a court of appeals of the

United States, such agreement to arbitrate shall be deliv-

ered to a member of said Board or transmitted to said

Board, to be filed in its office.

(c) When an agreement to arbitrate has been filed

with the Mediation Board, or with one of its members, as

provided by this section, and when the said Board has

been furnished the names of the arbitrators chosen by the

parties to the controversy it shall be the duty of the Board

to cause a notice in writing to be served upon said

arbitrators, notifying them of their appointment, request-

ing them to meet promptly to name the remaining arbi-

trator or arbitrators necessary to complete the Board of

Arbitration, and advising them of the period within

which, as provided by the agreement to arbitrate, they

are empowered to name such arbitrator or arbitrators.

(d) Either party to an arbitration desiring the recon-

vening of a board of arbitration to pass upon any contro-

versy arising over the meaning or application of an

award may so notify the Mediation Board in writing,

stating in such notice the question or questions to be

submitted to such reconvened Board. The Mediation

Board shall thereupon promptly communicate with the

members of the Board of Arbitration or a subcommittee

of such Board appointed for such purpose pursuant to a

provision in the agreement to arbitrate, and arrange for

the reconvening of said Board of Arbitration or subcom-

mittee, and shall notify the respective parties to the con-

troversy of the time and place at which the Board, or the

subcommittee, will meet for hearings upon the matters in

App. 23

controversy to be submitted to it. No evidence other than

that contained in the record file with the original award

shall be received or considered by such reconvened Board

or subcommittee, except such evidence as may be neces-

sary to illustrate the interpretations suggested by the

parties. If any member of the original Board is unable or

unwilling to serve on such reconvened Board or subcom-

mittee thereof, another arbitrator shall be named in the

Same manner and with the same powers and duties as

such original arbitrator.

(e) Within sixty days after June 21, 1934, every car-

rier shall file with the Mediation Board a copy of each

contract with its employees in effect on the Ist day of

April 1934, covering rates of pay, rules, and working

conditions. If no contract with any craft or class of its

employees have been entered into, the carrier shall file

with the Mediation Board a statement of that fact includ-

ing also a statement of the rates of pay, rules, and work-

ing conditions applicable in dealing with such craft or

class. When any new contract is executed or change is

made in an existing contract with any class or craft of its

employees covering rates of pay, rules, or working condi-

tions, or in those rates of pay, rules, and working condi-

tions of employees not covered by contract, the carrier

shall file the same with the Mediation Board within thirty

days after such new contract or change in existing con-

tract has been executed or rates of pay, rules, and work-

ing conditions have been made effective.

(f) The Mediation Board shall be the custodian of all

papers and documents heretofore filed with or trans-

ferred to the Board of Mediation bearing upon the settle-

ment, adjustment, or determination of disputes between

App. 24

carriers and their employees or upon mediation or arbi-

tration proceedings held under or pursuant to the provi-

sions of any Act of Congress in respect thereto; and the

President is authorized to designate a custodian of the

records and property of the Board of Mediation until the

transfer and delivery of such records to the Mediation

Board and to require the transfer and delivery to the

Mediation Board of any and all such papers and docu-

ments filed with it or in its possession.

45 U.S.C. § 181. Application of subchapter I to carriers

by air

All of the provisions of subchapter I of this chapter,

except section 153 of this title, are extended to and shall

cover every common carrier by air engaged in interstate

‘or foreign commerce, and every carrier by air transport-

ing mail for or under contract with the United States

Government, and every air pilot or other person who

performs any work as an employee or subordinate official

of such carrier or carriers, subject to its or their continu-

ing authority to supervise and direct the manner of rendi-

tion of his service.

45 U.S.C. § 182. Duties, penalties, benefits, and privi-

leges of subchapter I applicable

The duties, requirements, penalties, benefits, and

privileges prescribed and established by the provisions of

App. 25

subchapter I of this chapter, except section 153 of this

title, shall apply to said carriers by air and their

employees in the same manner and to the same extent as

though such carriers and their employees were specifi-

cally included within the definition of “carrier” and

“employee”, respectively, in section 151 of this title.

45 U.S.C. § 184. System, group, or regional boards of

adjustment

The disputes between an employee or group of

employees and a carrier or carriers by air growing out of

grievances, or out of the interpretation or application of

agreements concerning rates of pay, rules or working

conditions, including cases pending and unadjusted on

April 10, 1936, before the National Labor Relations Board

shall be handled in the usual manner up to and including

the chief operating officer of the carrier designated to

handle such disputes; but, failing to reach an adjustment

in this manner, the disputes may be referred by petition

of the parties or by either party to an appropriate adjust-

ment board as hereinafter provided, with a full statement

of the facts and supporting data bearing upon the dis-

putes.

It shall be the duty of every carrier and of its

employees, acting through their representatives, selected

in accordance with the provisions of this subchapter, to

establish a board of adjustment of jurisdiction not exceed-

ing the jurisdiction which may be lawfully exercised by

App. 26

system, group or regional boards of adjustment, under

the authority of section 153 of this title.

Such boards of adjustment may be established by

agreement between employees and carriers either on any

individual carrier, or system, or group of carriers by air

and any class or classes of its or their employees; or

pending the establishment of a permanent National

Board of Adjustment as hereinafter provided. Nothing in

this chapter shall prevent said carriers by air, or any class

or classes of their employees, both acting through their

representatives selected in accordance with provisions of

this subchapter, from mutually agreeing to the establish-

ment of a National Board of Adjustment of temporary

duration and of similarly limited jurisdiction.

45 U.S.C. § 185. National Air Transport Adjustment

Board

When, in the judgment of the National Mediation

Board, it shall be necessary to have a permanent national

board of adjustment in order to provide for the prompt

and orderly settlement of disputes between said carriers

by air, or any of them, and its or their employees, grow-

ing out of grievances or out of the interpretation or

application of agreements between said carriers by air or

any of them, and any class or classes of its or National

Mediation Board is hereby empowered and directed, by

its order duly made, published, and served, to direct the

said carriers by air and such labor organizations of their

App. 27

employees, national in scope, as have been or may be

recognized in accordance with the provisions of this

chapter, to select and designate four representatives who

shall constitute a board which shall be known as the

“National Air Transport Adjustment Board.” Two mem-

bers of said National Air Transport Adjustment Board

shall be selected by said carriers by air and two members

by the said labor organizations of the employees, within

thirty days after the date of the order of the National

Mediation Board, in the manner and by the procedure

prescribed by section 153 of this title for the selection and

designation of members of the National Railroad Adjust-

ment Board. The National Air Transport Adjustment

Board shall meet within forty days after the date of the

order of the National Mediation Board directing the selec-

tion and designation of its members and shall organize

and adopt rules for conducting its proceedings, in the

manner prescribed in section 153 of this title. Vacancies in

membership or office shall be fiiled, members shall be

appointed in case of failure of the carriers or of labor

organizations of the employees to select and designate

representatives, members of the National Air Transport

Adjustment Board shall be compensated, hearings shall

be held, findings and awards made, stated, served, and

enforced, and the number and compensation of any nec-

essary assistants shall be determined and the compensa-

tion of such employees shall be paid, all in the same

manner and to the same extent as provided with refer-

ence to the National Railroad Adjustment Board by sec-

tion 153 of this title. The powers and duties prescribed

and established by the provisions of section 153 of this

title with reference to the National Railroad Adjustment

App. 28

Board and the several divisions thereof are conferred

upon and shall be exercised and performed in like man-

ner and to the same extent by the said National Air

Transport Adjustment Board, not exceeding, however, the

jurisdiction conferred upon said Nationai Air Transport

Adjustment Board by the provisions of this subchapter.

From and after the organization of the National Air

Transport Adjustment Board, if any system, group, or

regional board of adjustment established by any carrier

or carriers by air and any class or classes of its or their

employees is not satisfactory to either party thereto, the

said party, upon ninety days’ notice to the other party,

may elect to come under the jurisdiction of the National

Air Transport Adjustment Board.

29 U.S.C. 185. Suits by and against labor organizations

Venue, amount, and citizenship

(a) Suits for violation of contracts between an

employer and a labor organization representing

employees in an industry affecting commerce as defined

in this chapter, or between any such labor organization,

may be brought in any district court of the United States

having jurisdiction of the parties, without respect to the

amount in controversy or without regard to the citizen-

ship of the parties.

Responsibility for acts of agent; entity for purposes of

suit; enforcement of money judgments

(b) Any labor organization which represents

employees in an industry affecting commerce as defined

in this chapter and any employer whose activities affect

App. 29

commerce as defined in this chapter shall be bound by

the acts of its agents. Any such labor organization may

sue or be sued as an entity and in behalf of the employees

whom it represents in the courts of the United States.

Any money judgment against a labor organization in a

district court of the United States shall be enforceable

only against the organization as an entity and against its

assets, and shall not be enforceable against any individ-

ual member or his assets.

Jurisdiction

(c) For the purposes of actions and proceedings by

or against labor organizations in the district courts of the

United States, district courts shall be deemed to have

jurisdiction of a labor organization (1) in the district in

which such organization maintains its principal office, or

(2) in any district in which its duly authorized officers or

agents are engaged in representing or acting for

employee members.

Service of process

(d) The service of summons, subpena, or other legal

process of any court of the United States upon an officer

or agent of a labor organization, in his capacity as such,

shall constitute service upon the labor organization.

Determination of question of agency

(e) For the purposes of this section, in determining

whether any person is acting as an “agent” of another

person so as to make such other person responsible for

App. 30

his acts, the question of whether the specific acts per-

formed were actually authorized or subsequently ratified

shall not be controlling.

California Civil Code section 1709,

One who willfully deceives another with intent

to induce him to alter his position to his injury

or risk, is liable for any damage which he

thereby suffers.

California Civil Code section 1710,

A deceit, within the meaning of the last section,

is either;

1. The suggestion, as a fact, of that which is not

true, by one who does not believe it to be true;

2. The assertion, as a fact, of that which is not

true, by one who has no reasonable ground for

believing it to be true.

3. The suppression of a fact, by one who is

bound to disclose it, or who gives information

of other facts which are likely to mislead for

want of communication of that fact; or,

4. A promise, made without any intention of

performing it.