# Petition for Writ of Certiorari — Melanson v. United Air Lines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2459%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 502 U.S. 865 ## Text 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