Opposition Brief — Melanson v. United Air Lines, Inc.

Supreme Court, U.S.

FILED

_

& AUG 23 1991

”

———

No. 91-178

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

“

NICHKOL MELANSON,

Petitioner,

VS.

UNITED AIR LINES, INC.,

An Illinois Corporation,

Respondent.

7

Petition For Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

-

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

+= --—¢

MicHaet D. Rossins WiLLIAM J. Dritsas*

Trial Attorney TyLeR A. BROWN

Unitep Air Lines, INC. SEYFARTH, SHAW,

1200 E. Algonquin Road FAIRWEATHER & GERALDSON

Elk Grove Township, IL 101 California Street,

60007 Suite 2900

(708) 952-5871 San Francisco, California

94111-5858

(415) 397-2823

Attorneys for Respondent

*Counsel of Record

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

OR CALL COLLECT (402) 342-2831

\p

QUESTIONS RESTATED

1. “Whether Petitioner’s state tort claims for (1) neg-

ligent or intentional misrepresentation, (2) concealment

and (3) promise without intent to perform, all of which

relate to United Air Lines’ work rules and working condi-

tions and which would require this Court to refer to and

interpret the terms of the collective bargaining agree-

ment, are preempted by the Railway Labor Act.

2. Whether Petitioner may establish a separate

employment contract which contradicts the terms negoti-

ated by her exclusive bargaining representative.

il

STATEMENT REQUIRED BY RULE 29.1

Respondent United Air Lines, Inc. is wholly owned

by UAL Corporation, a Delaware corporation. Respon-

dent has no subsidiaries that are not wholly owned.

ili

TABLE OF CONTENTS

Page

eB oy Go. 1 oy vf 9° i

STATEMENT REQUIRED BY RULE 29.1 ........... ii

urmenerue GP ADAGUMENT..........-0cc cece veees 1

COUNTERSTATEMENT OF THE CASE ............ 2

ee EEE, PCO so cp eke ress eesvvasssess 2

eo er ee 4

ARGUMENT FOR DENIAL OF THE WRIT......... 6

A. The Supreme Court Holds That The Preemp-

tive Scope Of The RLA Is Broader Than That

ROUT 6 Obrin ess Fe eens oe 0d reese Phe. 7

1. RLA Preemption Is Broader Than § 301

Preemption Because The RLA Will Pre-

empt Those Claims That Require Reference

To The CBA, Not Merely Those Claims

That Call For The CBA’s Interpretation .. 11

2. The Ninth Circuit Properly Applied The

RLA’s Broad Preemptive Effect In The

ED eee io. Sh Leh od a eg 40 wee 14

B. Petitioner’s Argument That Her Claims Should

Not Be Preempted Because She Is Asserting

Statutory Rights Does Not Raise An Important

tae iene yee nev nc ten +s 16

C. Petitioner Cannot Construct Any Conflict In

The Circuit Courts Of Appeal With Regard To

- RLA Preemption Of State Law Tort Claims .. 17

iv

TABLE OF CONTENTS - Continued

Page

D. Petitioner Is Unable To Articulate Any Reason

Why The Ninth Circuit Was Incorrect In Deter-

mining That Pre-Employment Representations

Were Preempted By The RLA ............... 22

Se Nee ee rer ee rr ee 23

TABLE OF AUTHORITIES

CasES

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985)..... 17

Andrews v. Louisville & N. R. Co., 406 U.S. 320

RUMP UNéeR SA KO he eer ee eae 9, 10, 12, 19

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

Vas Dee SRNR vs COGN Tek UT a ane ee 20

Baldracchi v. Pratt & Whitney Aircraft Div., 814 F.2d

Pe Ce EE DU ices orc ee eee 10, 19

Beard v. Carrollton Railroad, 893 F.2d 117 (6th Cir.

BOOUs Kin ncendedecee Hua eeh iene teen 10, 18, 21

Beers v. Southern Pac. Transp. Co., 703 F.2d 425 (9th

COR TSOP +» pcre no 00a caaine es fees ed ee 13

Bernhardt v. American Airlines, Inc., 511 F.2d 1219

rane UR: Bae ics. Sov oud canes ae eee eae 13, 14

Boggs v. Consolidated Rail Corp., 112 L.R.R.M.

CEVA) Zaoo AG. FR TR ois oe os eee 14

Brotherhood of Loc. Engineers v. Louisville & N. R.

Compeny, 373 US. Th (0. ae eee 9

Brotherhood of R.R. Trainmen v. Jacksonville Terminal

Ca.,. 5: US. .30F (ISS. ae eee 8

Carlson v. Southern Ry. Co., 494 F.Supp. 1104

ib 8 OR: 5 | eronrpetierar rrr sree Gail. AAta 04: 13

Charles Dowd Box Company v. Courtney, 368 U.S.

PO SOU 0 50941555 Cone res een eee 10

Choate v. Louisville & N. R.R., 715 F.2d 369 (7th Cir.

GOP soc vkewucsedsdecces ceptor ee

vi

TABLE OF AUTHORITIES - Continued

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

er Ge GE EOD ce cee veceeaeeeeterimeneeeyen 20

De La Rosa Sanchez v. Eastern Airlines, Inc., 574 F.2d

ee ee 6 ee se gb ie eae ee eee 13, 14

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

Se a, onde esky een Uroke yeaa o, te. i7

Elgin, J]. & E. Ry. v. Burley, 325 U.S. 711 (1945)...11, 17

Essary v. Chicago & N.W. Transp. Co., 618 F.2d 13

CPU GM PO vcevSisendkesev res tern sents ee. 12

Fraley v. Hayes, 112 L.R.R.M. (BNA) 2298 (S.D. Ill.

SOR 6-00 55 40 09.09 40-8 94400 beads Ee eee 13

Gen. Com. of Adj., United Transp. Union v. CSX

Railroad Co., 893 F.2d 584 (3rd Cir. 1990)....... 12, 17

Grote v. Trans World Airlines, Inc., 901 F.2d 1307

(9th Cir.), cert. denied, _ U.S. __, 111 S.Ct. 386

UE 5 600 oe dd 660503004000 40900 de fx Oe te

Hill v. Norfolk & W. Ry., 814 F.2d 1192 (7th Cir.

re err er err rey cect re so 12, t3

International Association of Machinists v. Central

Airlines, Inc., 372 U.S. 682 (1963)... 0.56 snccesseccess 8

J. I. Case Company v. NLRB, 321 U.S. 332 (1944) ...4, 22

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

Cir. 1983), cert. denied, 465 U.S. 1007 (1984)....... 21

Leu v. Norfolk & Western Ry. Co., 820 F.2d 825 (7th

Rely TOUS ov kc 6k rere ce cea aare cess oxen 1d, 13, 24, 17

Vii

TABLE OF AUTHORITIES - Continued

Page

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

FC eh ans hae anther etearnvinay ie eeeneen passim

Louisville & N. R. v. Marshall, 586 S.W.2d 274 (Ky.

ee Ot SOU UE No Duds senda e cr oeva cer ehea rien esas 13

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

1367 (9th Cir.), cert. denied, 439 U.S. 930 (1978)

CARAES OHGT EMS UA SORE Sed anes Ce menNOea es ty Fa, Boy 89

Majors v. U.S. Air, Inc., 525 FSupp. 853 (D. Md.

ee Ee Oe ee re tn 13

McAlester v. United Airlines, Inc., 851 F.2d 1249

GWE RUN BONING ea ocas vanes vis been oc ceo ee errs 20

Merchant v. American S.S. Company, 860 F.2d 204

SS ee reer errs te ee erry 21

Order of Railroad Telegraphers v. Railway Express

Mgetey, Fei UD. FEe CIPO oo oc che ccccvcdasstesvns 22

Pan American World Airways v. Puchert, 472 U.S.

ST AE PEEE aes ters cease Rese es ta eeeeees oreene ra 19

Puchert v. Agsalud, 67 Haw. 25, 677 P.2d 449 (1984) .... 20

Railroad Labor Executives Ass'n v. Atchison, Topeka &

Santa Fe Railway Co., 430 F.2d 994 (9th Cir. 1970),

cert. denied, 400 U.S. 1021 (1971)............... 11, 17

Salcedo v. Norfolk and Western Ry. Co., 572 F.Supp.

286 (E.D. Mich. 1982), aff'd mem., 723 F.2d 911

i Se: | Sper ee rien nna fry eee 13, 14

Schroeder v. Trans World Airlines, 702 F.2d 189 (9th

eS |: Ean eerste nan PDA eatin SIM By ae oe mah delis fonda Wl 14

viii

TABLE OF AUTHORITIES —- Continued

Schwadron v. Trans World Airlines, Inc., 585 F.Supp.

og B 8 ee errr eer rere

Slocum v. Delaware, L. & W. R.R., 339 U.S. 239

pepo ain rrr rere

Spencer v. Missouri Pac. R. Co., 581 FSupp. 1220

(E.D. Mo.), aff'd, 743 F.2d 627 (8th Cir. 1984),

cert. denied, 469 U.S. 1160 (1985)...............

Stephens v. Norfolk & Western Ry., 792 F.2d 575 (6th

Se I ee Wie pace vadaee Cand ee ee ere ees Oe

Trans World Airlines, Inc. v. Independent Fed. of

Flight Attendants, 489 U.S. 426 (1989)...........

Union Pacific R. Company v. Sheehan, 439 U.S. 89

Le eee es Leh ee ser s Vareek wea e hes

Woodrum v. Southern Ry. Co., 571 F.Supp. 352 (M.D.

Ga. 1983), aff'd 750 F.2d 876 (11th Cir.) cert.

oo a A a ee

Woolridge v. National Railroad Passenger Corp., 800

CoG ges Lee, | rer errer rrr eT 12,

STATUTES

California Civil Code, Sections 1709, 1710........

Labor Management Relations Act (“LMRA”), 29

U.S.C. § 185

Labor Management Relations Act (“LMRA”), 29

U.S.C. § 173(d)

Labor Management Relations Act (“LMRA”), 61

Stat. 136, at § 101

ix

TABLE OF AUTHORITIES - Continued

Page

Labor Management Relations Act (“LMRA”), 29

eee Tem aca a) ONE Eee afl a eee 1,9

National Labor Relations Act of 1935 49 Stat. 449..... 8

Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq. ..... 1

Railway Labor Act (“RLA”), 45 U.S.C. § 15la....... 8

Railway Labor Act (“RLA”), 45 U.S.C. § 153....... 8, 9

Railway Labor Act (“RLA”), 45 U.S.C. § 184....... 8, 9

SUMMARY OF ARGUMENT

Contrary to Petitioner’s claims, the petition for a writ

of certiorari raises no important issues of law or conflict

among the circuits. Instead, the case involves the routine

application of well-settled preemption doctrine under the

Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq. Peti-

tioner, unable to challenge the Ninth Circuit Court of

Appeals’ application of RLA authority, attempts to create

an issue for certiorari by urging this Court (1) to consider

whether RLA preemption shou'd be patterned after the

more restrictive preemptive etfect of Section 301 of the

Labor Management Relations Act (“LMRA”), 29 U.S.C.

§ 185 and (2) to resolve a purported conflict between

circuit court decisions applying § 301 in the context of

this RLA preemption case. Neither claim withstands scru-

tiny nor merits granting the writ of certiorari.

Petitioner fails to acknowledge this Court’s prior

analysis of the broad preemptive scope of the RLA, as

well as the distinct differences in policy and statutory

language between the RLA and § 301. Further, there is no

RLA case which conflicts with the underlying Ninth Cir-

cuit decision. Petitioner’s attempt to create a conflict in

the circuits by relying only on § 301 cases — thereby

erroneously blurring fundamental differences between

the RLA and § 301 - is analytically unsound and should

be rejected.

Petitioner’s arguments as to the merits of her claim

also fail to raise any issue worthy of this Court’s atten-

tion. As the Ninth Circuit properly recognized, Peti-

tioner’s state tort claims are preempted by the RLA

because the dispute involves the applicability of United’s

weight program, a condition of Petitioner’s employment

relationship. Because Petitioner’s suit could not be

resolved without an examination of her employment rela-

tionship and the collective bargaining agreement

(“CBA”), it raises, under long-standing principles univer-

sally recognized by this Court and the lower courts, a

“minor dispute” within the meaning of the RLA. Such

disputes, consistent with the fundamental purpose of the

RLA, are barred from litigation in the state courts and are

subject to resolution exclusively through the RLA’s man-

datory administrative grievance procedures.

Indeed, this Court recently denied a petition for a

writ of certiorari from a Ninth Circuit decision concern-

ing the identical issues raised by the instant case. See

Grote v. Trans World Airlines, Inc., 901 F.2d 1307 (9th Cir.),

cert. denied, _; U.S. __, 111 S.Ct. 386 (1990). The same

result is warranted here.

COUNTERSTATEMENT OF THE CASE

A. Statement Of Facts

Petitioner is a flight attendant, currently employed

by Respondent United Air Lines, Inc. (“United” or

“Respondent”), who transferred from Pan American Air-

lines (“Pan Am”) after United purchased the Pacific Divi-

sion of Pan Am in 1985. As part of that acquisition,

United agreed to hire 1,202 of Pan Am’s flight attendants

to work the newly acquired routes. On August 6, 1985,

the Association of Flight Attendants (“AFA” or “Union”)

opened negotiations with United over the employment

conditions for the :an Am flight attendants transferring

to United. (Clerk’s Record, hereinafter “CR,” at 25, Ex. A,

{ 4). On September 11, 1985, in response to a request by

the AFA for information on certain employee rights, the

AFA was told that if an employee came to United with a

weight problem, that employee would be handled in

accordance with United’s policy. (CR 25, Ex. A, J 4). In

the following months, prospective United flight atten-

dants, then employed by Pan Am, were provided copies

of United’s work rules, including the United weight pro-

gram. (CR 5, Ex. 3, § III A).

As a flight attendant, Petitioner is a member of the

AFA and is covered by the collective bargaining agree-

ment to which her Union and United agreed in the month

prior to Petitioner’s commencing employment at United.

(CR 5, 4 2). That agreement expressly incorporates

United’s weight program, as well as establishes grievance

procedures which are to take effect “in the event of any

alleged action or inaction by a flight attendant.” (CR 5,

Ex. 1, p. 146). The agreement also provides that these

grievance procedures may be utilized by:

A group of flight attendants or a flight attendant

who has a grievance concerning any action of the

Company which affects her/him. ... (CR 5, Ex. 1,

§ 26) [emphasis added].

Finally, the agreement provides for a System Board of

Adjustment which is the body empowered to arbitrate

disputes:

[BJetween any employee or the Union and Com-

pany and between the Company and the Union

or any employee growing out of grievances or

out of interpretation or application of any of the

terms of this Agreement. (CR 5, Ex. 1, § 27D).

B. Procedural History

Petitioner originally filed this action in the Superior

Court of the State of California, City and County of San

Francisco. Respondent removed the case to the United

States District Court for the Northern District of Califor-

nia on the grounds of federal question and diversity

jurisdiction. (CR 1).

On or about November 18, 1988, United filed a

motion to dismiss Petitioner’s action on the ground that

her claims were preempted by the RLA. (CR 6-7). In an

order dated April 12, 1989, District Court Judge Charles

A. Legge granted United’s motion. (CR 27). Judgment

was entered on United’s behalf on the same date (CR 28)

and Petitioner’s notice of appeal to the United States

Court of Appeal for the Ninth Circuit was filed on April

27, 1989. (CR 29). On April 24, 1991, the Ninth Circuit

affirmed the District Court’s dismissal. (Petitioner’s

Appendix, hereinafter “App.,” at 1-12).

The Ninth Circuit held that Petitioner’s dispute arose

within the employment relationship and was therefore

within the preemptive force of the RLA, even though

Petitioner was not working at United at the time she

alleges she was told she would not be subject to United’s

weight program. (App. 4-5). The Ninth Circuit relied on

this Court’s ruling in J.J. Case Company v. NLRB, 321 U.S.

332, 337-39 (1944) that collective bargaining agreements

(“CBA”) supersede inconsistent individual employment

contracts of the type that Petitioner believed to have

existed. The harmful effect on the federa! labor scheme of

allowing such individual agreements to conflict with a

CBA, the Ninth Circuit held, would be the same whether

the agreement was reached prior to or during a formal

employment relationship. It is the relationship of the

claim to the CBA, not the Plaintiff’s employment status,

that determines whether a claim will be preempted.

(App. 4-5).

The Ninth Circuit then set forth the long-standing

statutory framework enacted by Congress for resolving

labor disputes in the railroad and airlines industries.

(App. 6-7). Under that framework, “minor disputes” are

relegated to exclusive and mandatory administrative

grievance procedures. “Minor disputes” are defined as

the “grievances that arise daily between employees and

carriers regarding rates of pay, rules and working condi-

tions.” (App. 6, citing Union Pacific Railroad Co. v. Sheehan,

439 U.S. 89, 94 (1978)). The Ninth Circuit has also defined

minor disputes as those which are “arguably” governed

by a CBA, have a “not obviously insubstantial” relation-

ship to the Jabor contract or “are ‘inextricably intertwined

with the grievance machinery of the collective bargaining

agreement and of the RLA.’” (App. 6-7, citing Magnuson

v. Burlington Northern, Inc., 576 F.2d 1367, 1369 (9th Cir.),

cert. denied, 439 U.S. 930 (1978); Edelman v. Western Air-

lines, Inc., 892 F.2d 839, 843 (9th Cir. 1989) (quoting Mag-

nuson, 576 F.2d at 1369)).

The Ninth Circuit found that all three of Petitioner’s

fraud theories were preempted because each required

reference to and interpretation of the CBA. The Ninth

Circuit held that to demonstrate the falsity of United’s

alleged representations regarding its weight program,

Petitioner would have to show that the relevant provi-

sions of the CBA differed significantly from United’s

representations. This showing necessarily required refer-

ence to and interpretation of the terms of the CBA. As the

Ninth Circuit stated:

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 ref-

erence to the CBA. (App. 11).

Finally, the Ninth Circuit rejected Petitioner’s argu-

ment that the preemption issue should be analyzed in

light of this Court’s decision in Lingle v. Norge Div. of

Magic Chef, Inc., 486 U.S. 399 (1988). The Ninth Circuit

held 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. (App. 7, citing Grote, 905 F.2d

at 1310).

ARGUMENT FOR DENIAL OF THE WRIT

The petition is not worthy of this Court’s attention.

The essence of Petitioner’s argument is that this Court

should strike down long-standing authority establishing

the differences between preemption analysis under § 301

and the RLA. Yet, Petitioner is completely unable to set

forth any persuasive reason why, despite the basic differ-

ences between those statutes, the Court should constrict

the RLA preemptive scope to mirror § 301 preemption.

Moreover, Petitioner is unable to cite a single conflict

among the circuit courts on this issue. Because this case

involves, at best, a routine application of RLA preemp-

tion of state law torts, an issue which this Court has

recently elected not to review, see Grote, supra,’ the peti-

tion should be denied.

A. The Supreme Court Holds That The Preemptive

Scope Of The RLA Is Broader Than That Of § 301

Petitioner argues that because § 301 and RLA have

some similarities, and because some circuit courts have

held that § 301 does not preempt state tort claims similar

to those presented here, this Court should hold that nei-

ther statute preempts such state tort causes of action.

Furthermore, Petitioner argues that this Court’s decision

in Lingle should govern the RLA preemption analysis of

her tort causes of action.

This tortured logic, however, overlooks the funda-

mental difference between the preemptive effect of the

RLA and that of § 301. As this Court recently reiterated:

' In Grote, plaintiff claimed that after he suffered chest

pains, TWA requested that he perjure himself to the Federal

Air Surgeon in order to get recertified to resume his flight

duties. Because the CBA dealt with the company’s ability to

require such certificates, plaintiff’s claims were at least “argua-

bly governed” by that contractual language. Grote, 905 F.2d at

1309. Therefore, the Ninth Circuit held that plaintiff’s claims

for both tort and contractual causes of action were preempted

by the RLA. The court rejected plaintiff's argument that the

case should be analyzed in accordance with this Court’s anal-

ysis of § 301 under Lingle, holding the RLA’s preemptive effect

was much broader than that of § 301.

“{T]he NLRA? ‘cannot be imported wholesale into the

railway labor arena. Even rough analogies must be drawn

circumspectly with due regard for the many differences

between the statutory schemes.’” Trans World Airlines,

Inc. v. Independent Fed c* Flight Attendants, 489 U.S. 426,

432 (1989) (quoting Brotherhood of R.R. Trainmen v. Jackson-

ville Terminal Co., 394 U.S. 369, 383 (1969)).

Perhaps the most pronounced difference between the

two statutes is the manner in which Congress provided

for dispute resolution. To promote the fundamental RLA

purposes of “avoid[ing] any interruption to commerce”

and “provid[ing] for the prompt and orderly settlement

of all disputes growing out of . . . the interpretation or

application of agreements,” see 45 U.S.C. § 151la, the RLA

requires the parties’ collective bargaining agreements in

the airline industry to establish adjustment boards? and

to submit to those boards all so-called “minor disputes”

that are not resolved through the statutorily required

2 The National Labor Relations Act of 1935, 49 Stat. 449,

was amended and restated as part of the Labor Management

Relations Act of 1947 (“LMRA”), 61 Stat. 136, at § 101 (1947).

Section 301 of the LMRA was enacted at that same time.

3 Section 3 of the RLA, 45 U.S.C. § 153, establishes the

National Railroad Adjustment Board (“NRAB”) for the deter-

mination of minor disputes in the railroad industry. Section

204, 45 U.S.C. § 184, makes Section 3 applicable to air carriers

and their employees and requires the establishment of private

system boards of adjustment, analogous to the NRAB, for

resolution of minor disputes in the airline industry. See, Inter-

national Association of Machinists v. Central Airlines, Inc., 372

U.S. 682 (1963).

contractual grievance procedure. See 45 U.S.C. §§ 153,

184. This Court has often emphasized the importance of

relegating minor disputes to the exclusive jurisdiction of

the various adjustment boards. See, e.g., Union Pacific R.

Company v. Sheehan, 439 U.S. 89, 94 (1978) (per curiam)

(“Congress considered it essential to keep the so-called

‘minor’ disputes within the Adjustment Board and out of

the courts.”); Brotherhood of Loc. Engineers v. Louisville &

N. R. Company, 373 U.S. 33, 38 (1963) (“statutory griev-

ance procedure is a mandatory, exclusive, and compre-

hensive system” which cannot be circumvented “by

resorting to some other forum”); Slocum v. Delaware, L. &

W.R.R., 339 U.S. 239, 243 (1950). Thus:

[T]he notion that the grievance and arbitration

procedures provided for minor disputes in the

Railway Labor Act are optional, to be availed of

as the employee or the carrier chooses, was

never good history and is no longer good law.

Andrews v. Louisville & Nashville R. Co., 406 U.S. 320, 322

(1972).

The mandatory and exclusive jurisdiction granted to

adjustment boards under the RLA stands in sharp con-

trast to the legislative scheme under the LMRA, of which

§ 301 is a part. Thus, in LMRA Section 203, Congress

consciously rejected compulsory arbitration and instead

established a policy that merely favors resort to admini. -

trative remedies. See 29 U.S.C. § 173(d). Indeed, § 301

itself expressly states that “Suits for violation of contracts

between an employer and a labor organization . . . may be

brought in any district court of the United States” (29

U.S.C. § 185(a) (1982)). Section 301 thereby creates con-

current state and federal jurisdiction over specified labor

10

disputes. Charles Dowd Box Company v. Courtney, 368 U.S.

502, 506 (1962).

It is this difference in the preemptive scope of the

two statutes which has led this Court, as well as inter alia

the Second, Sixth and Ninth Circuits, to conclude that the

RLA’s preemptive force is broader than that of § 301. In

Andrews v. Louisville & Nashville R. Co., 406 U.S. 320, 323

(1972), this Court held:

[S]ince the compulsory character of the adminis-

trative remedy provided by the [RLA] for dis-

putes such as that between petitioner and

respondent stems not from any contractual

undertaking between the parties but from the

Act itself, the case for insisting on resort to

those remedies is if anything stronger in cases

arising under that Act than it is in cases arising

under § 301 of the LMRA.

Andrews, 406 U.S. at 323; see also Grote, 905 F.2d at 1309-10

(“[B]ecause the RLA’s preemptive force appears on the

face of the statute and § 301 preemption is judicially

imposed, we conclude that preemption under the RLA is

broader than under § 301.”); Beard v. Carrollton Railroad,

893 F2d 117, 122 (6th Cir. 1989); Baldracchi v. Pratt &

Whitney Aircraft Div., 814 F.2d 102, 106 (2nd Cir. 1987).

Petitioner all but ignores this substantial body of case

authority in the vain hope of steering this Court away

from the broad preemptive effect of the RLA. Instead,

Petitioner would substitute the narrower interpretation of

§ 301 preemption set forth by this Court in Lingle. Taking

into account the statutory mandate of the RLA and the

policy of ensuring the continued uninterrupted operation

of the railroads and airlines, however, no basis or reason

11

exists for melding the preemption analysis of the two

statutes.

1. RLA Preemption Is Broader Than § 301 Preemp-

tion Because The RLA Will Preempt Those

Claims That Require Reference To The CBA,

Not Merely Those Claims That Call For The

CBA’s Interpretation

An examination of how each statute addresses pre-

emption readily demonstrates how the courts have main-

tained each statute’s separate identity. Preemption

analysis under § 301, as most recently defined by this

Court in Lingle, focuses on the contractual language of

the CBA. Thus, as the Lingle Court stated:

An application of state law is preempted by

Section 301 of the [LMRA] only if such applica-

tion requires the interpretation of a [CBA].

Lingle, 108 S.Ct. at 1885. (Emphasis added.)

Courts analyzing preemption under the RLA, on the

other hand, have consistently described the RLA’s man-

datory preemptive scope in much broader terms:

The [exclusive] jurisdiction of the adjustment board

is not limited to disputes arising from provisions

specifically included in a [CBA]. If the claim is

founded upon some incident of the employment

relationship, or an asserted one, the board may

determine the meaning and effect of the provi-

sions of the [CBA] with reference either to an

included or to an omitted case.

Elgin, J. & E. Ry. v. Burley, 325 U.S. 711, 723 (1945);

Railroad Labor Executives Ass'n v. Atchison, Topeka & Santa

12

Fe Railway Co., 430 F.2d 994, 997 (9th Cir. 1970), cert. denied,

400 U.S. 1021 (1971); Gen. Com. of Adj., United Transp. Union v.

CSX Railroad Co., 893 F.2d 584, 592 (3rd Cir. 1990) (“either

express or implied contractual terms, as interpreted through

established past practice, will serve to classify a dispute as

minor’); Edelman v. Western Airlines, Inc., 892 F.2d 839, 845

(9th Cir 1989) (plaintiff cannot avoid preemption by omitting

any reference to the CBA in complaint); Leu v. Norfolk &

Western Ry. Co., 820 F.2d 825, 829 (7th Cir. 1987) (if the

alleged responsibility of the carrier arises from a “course and

practice” of the carrier rather than from a provision of a

CBA, the question of whether that responsibility exists at all

requires an interpretation of the CBA).

Thus, the decision below is in complete harmony with

the holdings of this Court and those of other federal courts,

which have universally recognized that “[employees] cannot

escape the exclusive governance of the RLA by articulating

their claim in terms of a state tort action.” Leu, 820 F.2d at

830; see also, Stephens v. Norfolk & Western Ry., 792 F.2d 575,

580-81 (6th Cir. 1986). The courts have, therefore, repeatedly

and consistently held (as did the Ninth Circuit in the instant

case) that they lack subject matter jurisdiction over sucn

claims regardless of whether such claims are phrased as

wrongful termination,* “harass{ment]” or “outrageous

4 See, e.g., Andrews v. Louisville & Nashville R. Co., 406 U.S

320, 323-24 (1972); Hill v. Norfolk & W. Ry. Co., 814 F.2d 1192

(7th Cir. 1987); Woolridge v. National Railroad Passenger Corp.,

800 F.2d 647, 649 (7th Cir. 1986); Essary v. Chicago & N.W.

Transp. Co., 618 F.2d 13, 17 (7th Cir. 1980); Magnuson v. Bur

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

439 U.S. 930 (1978); Spencer v. Missouri Pac. R. Co. 581 F.Supp.

1220, 1221 (E.D. Ma.), aff'd, 743 F.2d 627 (8th Cir. 1984), cert

denied, 469 U.S. 1160 (1985).

13

conduct,”5 wrongful or malicious withholding of bene-

fits,© infliction of “severe anguish” or “mental suffer-

ing,””? “fabricating documents concerning [the

employee’s] case,”® “constitutional” violations,?

defamation,! false imprisonment,'! fraud,!? interference

5 See, e.g., Beers v. Southern Pac. Transp. Co., 703 F.2d 425,

427, 429 (9th Cir. 1983).

6 See, e.g., De La Rosa Sanchez v. Eastern Airlines, Inc., 574

F.2d 29, 32 (1st Cir. 1978).

7 See, ¢.g., Beers, 703 F.2d at 429; Choate v. Louisville & N.

R.R., 715 F.2d 369, 371 (7th Cir. 1983); Magnuson, 576 F.2d at

1369; Salcedo v. Norfolk and Western Ry. Co., 572 F.Supp. 286, 288

(E.D. Mich. 1982), aff'd mem., 723 F.2d 911 (6th Cir. 1983).

8 See, e.g., Hill v. Norfolk & W. Ry., 814 F.2d 1192 (7th Cir.

1987); Woolridge v. National Railroad Passenger Corp., 800 F.2d

647, 648-49; Magnuson, 576 F.2d at 1369-70.

9 See, e.g., Woodrum v. Southern Ry. Co., 571 F.Supp. 352, 359

(M.D. Ga. 1983), aff'd 750 F.2d 876 (11th Cir.) cert. denied, 474

U.S. 821 (1985); Bernhardt v. American Airlines, Inc., 511 F.2d

1219 (9th Cir. 1975) (per curiam).

10 See, e.g., Majors v. U.S. Air, Inc., 525 F.Supp. 853 (D. Md.

1981); Carlson v. Southern Ry. Co., 494 FSupp. 1104 (D.S.C.

1979); Fraley v. Hayes, 112 L.R.R.M. (BNA) 2298 (S.D. Ill. 1982);

Louisville & N. Rv. Marshall, 586 S.W.2d 274 (Ky. Ct. App.

1979).

11 See, Majors v. U.S. Air, Inc., 525 F.Supp. 853 (D. Md.

1981).

12 See, e.g., Leu v. Norfolk & Western Ry. Co., 820 F.2d 825

(7th Cir. 1987); Woodrum v. Southern Ry. Co., 571 F.Supp. 352

(M.D. Ga. 1983); aff'd, 750 F.2d 876 (11th Cir.), cert. denied, 474

U.S. 821 (1985).

14

with contractual relations,'? negligent misrepresenta-

tion,'* unlawful business practices,'5 “deliberate breach

of an obligation designed to cause damage to another,”16

conspiracy,'” wrongful refusal to recall from furlough,'®

conversion,'? or breach of the implied covenant of good

faith and fair dealing.?°

2. The Ninth Circuit Properly Applied The

RLA’s Broad Preemptive Effect In The

Instant Case

Given the broad standard for determining the scope

of RLA preemption set forth by this Court and the circuit

courts, it is clear that the Ninth Circuit properly applied

that standard in the instant case. The Ninth Circuit found

that to prevail on her misrepresentation theories,

"3 See, Salcedo v. Norfolk & Western Ry., 572 FSupp. 286

(E.D. Mich. 1982), aff'd mem., 723 F.2d 911 (6th Cir. 1983).

'4 See, Schwadron v. Trans World Airlines, Inc., 585 F.Supp.

1371 (W.D. Pa. 1984).

15 See, Schroeder v. Trans World Airlines, 702 F.2d 189 (9th

Cir. 1983).

16 See, De La Rosa Sanchez v. Eastern Airlines, Inc., 574 F.2d

29 (1st Cir. 1978).

17 See, e.g., Bernhardt v. American Airlines, Inc., 511 F.2d

1219 (9th Cir. 1975); Spencer v. Missouri Pac. R. Co., 581 F.Supp.

1220 (E.D. Mo.) aff'd, 743 F.2d 627 (8th Cir. 1984), cert. denied,

469 U.S. 1160 (1985).

18 See, Boggs v. Consolidated Rail Corp., 112 L.R.R.M. (BNA)

2295 (D.C. Pa. 1982).

"9 See, Leu v. Norfolk & W. Ry., 820 F.Supp. 825 (7th Cir.

1987).

20 See, Woolridge v. National Railroad Passenger Corp., 800

F.2d 647 (7th Cir. 1986).

permenant

15

Petitioner would have to show that United made a false

representation of material fact regarding its weight pro-

gram, which showing in turn would require that the

relevant provisions of the CBA differ significantly from

those representations. Petitioner’s claims, therefore, nec-

essarily require reference to and interpretation of the

terms of the collective bargaining agreement; only by

examining the provisions of the weight program could

the trier of fact determine if the alleged misrepresenta-

tions were, in fact, false.

Petitioner’s only rejoinder is to fall back on her ques-

tion-begging ipse dixit that the stricter standards of § 301

preemption should govern and that, under Lingle, her

claims do not require “interpretation” of the CBA.?' As

this case concerns the broader RLA preemptive force,

21 Petitioner’s claim also suffers from an overly restrictive

definition of the term “interpretation.” Again mistakenly rely-

ing on Lingle, Petitioner asks this Court to adopt a definition of

“interpretation” that is tantamount to requiring an analysis or

study of contractual terms to ascertain their meaning or effect.

This is too strict a definition because it does not take into

account the broader RLA preemption that merely asks whether

a claim requires reference to the CBA. For example, in Grote,

_the plaintiff claimed that the airline required him to perjure

himself to the Federal Air Surgeon in order to obtain medical

certification. A paragraph of the CBA dealt with the airline’s

ability to require any of its pilots to obtain a current medical

certificate. Thus, the court held that the subject of Grote’s claim

was arguably governed by that paragraph of the agreement

and found that the claim was preempted by the RLA. Grote, 905

F.2d at 1309. Similarly, here, the provisions of the weight

program arguably govern Petitioner’s claims and inescapably

lead to preemption.

16

Petitioner’s arguments are without merit and do not war-

rant review by this Court.22

B. Petitioner’s Argument That Her Claims Should

Not Be Preempted Because She Is Asserting

Statutory Rights Does Not Raise An Important

Issue Of Law

Petitioner relies on Lingle for the proposition that

employees’ claims based on rights arising out of a statute

designed to provide minimum substantive guarantees to

individual workers are not preempted by § 301. Lingle, 486

U.S. at 406. Petitioner asserts that her claims arise out of

statutes designed to provide minimum substantive guaran-

tees to all citizens (Cal. Civ. Code §§ 1709, 1710) and there-

fore should not be preempted by the RLA.

Aside from the fact that this case concerns the RLA

and not § 301, Petitioner’s argument again misperceives

the focus of RLA preemption analysis. This Court and all

circuit courts applying the RLA unanimously hold that a

court faced with a preemption issue must examine the

extent to which a cause of action is founded on the

employment relationship or requires reference to the

CBA, not whether that cause of action is based on a

22 Implicit in Petitioner’s argument is the assumption that the

Ninth Circuit’s decision in this case would have been different if

the court had analyzed the issues under Lingle. As the Ninth

Circuit properly held, however, Petitioner’s claims would not only

require reference to the CBA, but would actualiy require its inter-

pretation. (App. 9-11). Moreover, the Court stated that its analysis

would not change if the more restrictive § 301 standard was

applied. (App. 7-8 at fn. 3.) Thus, Petitioner’s claims are preempted

regardless of the statute under which they are analyzed.

17

statute. Elgin, J. & E. Ry. v. Burley, 325 U.S. 711, 723 (1945);

Railroad Labor Executives Ass'n v. Atchison, Topeka & Santa

Fe Railway Co., 430 F2d 994, 997 (9th Cir. 1970), cert.

denied, 400 U.S. 1021 (1971); Gen. Com. of Adj., United

Transp. Union v. CSX Railroad Co., 893 F.2d 584 (3rd Cir.

1990); Edelman v. Western Airlines, Inc., 892 F.2d 839, 843

(9th Cir. 1989); Leu v. Norfolk & Western Ry. Co., 820 F.2d

825, 828, fn. 7 (7th Cir. 1987). Thus, Petitioner’s “statu-

tory” argument merely rehashes her argument that the

RLA and § 301 should be analyzed similarly. Neither

argument is worthy of this Court’s review.??

C. Petitioner Cannot Construct Any Conflict In

The Circuit Courts Of Appeal With Regard To

RLA Preemption Of State L. w Tort Claims

In arguing that a conflict exists among the circuit

courts of appeal, Petitioner repeats her earlier mistake by

claiming that the Ninth Circuit’s RLA preemption anal-

ysis conflicts with those courts that, she believes, analyze

23 Moreover, on a common sense level, virtually every

statute or local ordinance is designed to provide some “mini-

mum substantive guarantees to citizens.” Further, most dis-

putes can be recharacterized as involving some state statutory

claim, even though the crux of the conduct involves the work-

ing conditions governed by federal law. Permitting employees

to circumvent the preemptive force of the RLA any time a state

statutory right existed would make a mockery of the RLA’s

regulatory scheme. The logical conclusion of Petitioner’s argu-

ment would result in the destruction of the exclusive alterna-

tive dispute resolution procedures required by the RLA and

cause the loss of the stability that the RLA was enacted to

provide. Cf., Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220

(1985).

18

the RLA and § 301 interchangeably. While there are cer-

tainly cases in which courts have analogized between the

two statutes, Petitioner’s argument fails because, as set

forth above, the RLA is not interchangeable with § 301,

but rather is far broader in preemptive effect. In fact, the

manner in which the circuit courts of appeal have han-

dled preemption of state tort claims under the RLA is

perfectly consistent and requires no clarification by this

Court.

For example, Beard v. Carrollton Railroad, 893 F.2d 117

(6th Cir. 1989}, held that a state law tort claim was pre-

empted by the RLA because state law made breach of

contract an essential element of the tort and, therefore,

required interpretation of the CBA. Beard, 893 F.2d at 122.

In sc holding, the court recognized that the Lingle

approach was instructive and consistent with preemption

analysis under the RLA. The court, however, also recog-

nized that the RLA was broader and that “it is probably

more likely that a state law claim will interfere with

federal interests in the context of {the RLA].” Beard, 893

F.2d at 122. Thus, rather than supporting Petitioner’s

assertion that § 301 and the RLA are interchangeable,

Beard makes it clear that there are significant differences

between the two statutes.

Likewise, the Ninth Circuit’s holding in the instant

case is perfectly consistent with Beard. In both cases, the

courts properly held that the inquiry should focus on

whether the asserted causes of action require the court to

refer to the CBA. As both the Beard causes of action and

19

Melanson’s fraud claims-required reference to the CBA,

preemption was appropriate.*4

Petitioner cites Baldracchi v. Pratt & Whitney Aircraft

Division, 814 F.2d 102 (2nd Cir. 1987), a case analyzing

preemption under § 301, apparently because that decision

relies in part on this Court’s ruling in Pan American World

Airways v. Puchert, 472 U.S. 1001 (1985). In Puchert, this

Court dismissed the appeal from the Hawaiian Supreme

Court, without discussion, for want of a federal question.

The Hawaiian Supreme Court had held that the RLA did

not preempt a state cause of action for discharge in retal-

iation for filing a workers’ compensation claim. The Bal-

dracchi court reasoned that if the broader preemption

scheme of the RLA did not cover that claim, that a similar

claim would therefore not be preempted ly § 301.

Baldracchi is in complete accord with the Ninth Cir-

cuit’s decision in this case. In Baldracchi, the Connecticut

statute stated that a charge thereunder was not to be

decided by reference to a labor contract. Accordingly,

24 Petitioner also mistakenly relies on the absence of a

decision by this Court expressly holding a state tort (as

opposed to contract) claim preempted by the RLA. Petition

(“Pet.”) at 9-10. See, Andrews, 406 U.S. at 324 (“wrongful dis-

charge” claim preempted). Petitioner also asserts that there is a

difference in how courts analyze preemption of tort and con-

tract clauses of action. Pet. 10. Petitioner is again incorrect. The

issue is not tort versus contract, but rather whether the cause

of action requires reference to the CBA and the employment

relationship. Magnuson, 576 F.2d at 1369.

20

unlike the instant case, there was no need to refer to or

interpret the contract.25

Finally, Petitioner misplaces reliance on two cases

which hold that the RLA does not preempt federal statu-

tory causes of action where the claims have legally inde-

pendent origins, separate and apart from the CBA. In

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

36 (2nd Cir. 1988) and McAlester v. United Airlines, Inc.,

851 F.2d 1249, 1252-1255 (10th Cir. 1988), independent

federal statutory schemes for redressing constitutional

wrongs to aggrieved individuals were at stake; nothing in

either statutory plan suggested that a prior determination

in an arbitration proceeding prevented a plaintiff from

bringing suit in federal court or divested that court of

jurisdiction. Coppinger, 861 F.2d at 37; McAlester, 851 F.2d

at 1255-56. Most important, however, in neither case was

the court required to refer to the language of the CBA in

resolving the issue. Coppinger, 861 F.2d at 36; McAlester,

851 F.2d at 1253. Accordingly, there is no inconsistency

between these two opinions and the Ninth Circuit's deci-

sion in the instant case. On the contrary, Coppinger and

McAlester merely follow this Court’s holding in Atchison,

Topeka and Santa Fe Ry. Co. v. Buell, 480 U.S. 557 (1987),

2° Nor does the Puchert decision conflict with traditional

RLA preemption analysis. The Hawaiian Supreme Court held

that the resolution of the dispute in question did not hinge on

the application or interpretation of the CBA, but rather was

solely dependent on the statutory language. Puchert v. Agsalud,

67 Haw. 25, 30, 677 P.2d 449, 454 (1984). Other cases holding

that state law claims were preempted by the RLA were deemed

distinguishable by the Hawaiian Supreme Court on the

grounds that the claims in those cases were identical to the

contractual claims provided for in the CBA. Id.

21

that Congress has the power to limit the ambit of its own

laws. See also Grote, 905 F.2d at 1310.%°

The cases cited by Petitioner do not establish the

existence of a conflict among the circuit courts as to the

analysis of RLA preemption of state law tort claims. As

there is no conflict, the instant petition should be denied.

26 Petitioner also relies on Merchant v. American S.S. Com-

pany, 860 F.2d 204 (6th Cir. 1988), a § 301 case, as an example of

the Sixth Circuit’s criticism of RLA preemption of state law”

claims under Jackson v. Consolidated Rail Corp., 717 F.2d 1045

(7th Cir. 1983), cert. denied, 465 U.S. 1007 (1984). As Merchant is

a case decided under § 301, and as its comments regarding the

RLA are merely dicta, Merchant does not even begin to-suggest

a conflict in the way in which circuit courts interpret the RLA

after Lingle. If such a conflict existed, the Ninth Circuit's deci-

sion in Grote, supra, would have provided an opportunity for

this Court to review that conflict. Just as this Court elected not

to accept certiorari on Grote, so too should it deny Petitioner’s

request here.

Moreover, Merchant is hardly persuasive authority given the

fact that the Honorable David A. Nelson, Circuit Judge and

author of that opinion, also wrote the majority opinion in

Beard, supra, a Sixth Circuit case decided a year after Merchant.

In Beard, Judge Nelson expressly relied on Jackson in determin-

ing that state law tort claims required interpretation of the

CBA and were, therefore, preempted by the RLA. Beard, 893

F.2d at 122.

22

D. Petitioner Is Unable To Articulate Any Reason

Why The Ninth Circuit Was Incorrect In Deter-

mining That Pre-Employment Representations

Were Preempted By The RLA

Petitioner argues that the Ninth Circuit was incorrect

in determining that the timing of the alleged misrepre-

sentations was not fatal to RLA preemption. The Ninth

Circuit relied on this Court's rulings in J. J. Case Company

v. NLRB, 321 U.S. 332, 337-39 (1944) and Order of Railroad

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

(1944) to find that the collective bargaining agreement

supersedes inconsistent individual employment con-

tracts. According to the Ninth Circuit:

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 employ-

ment relationship. The timing of the agreement

or alleged tortious act, then, is not necessarily

determinative. It is the relationship of the claim to

the CBA, regardless of the plaintiff's employment

status, that guides the preemption analysis.

App. 4-5. (Emphasis added.)

Petitioner’s only response to this forceful argument is

that she is not attempting to enforce a separate agree-

ment. Nevertheless, Petitioner cannot deny that if United

indeed made misrepresentations, those misrepresenta-

tions would form the terms cf a separate agreement dif-

ferent from those of the collective bargaining agreement.

Under these circumstances, the threat to the federal labor

scheme is clear and cannot be permitted, regardless of

Petitioner’s employment status at the time of the alleged

misrepresentations. As the claim relates to the CBA, Peti-

tioner’s employment status is wholly irrelevant.

CONCLUSION

For the reasons stated, the petition for a writ of

certiorari should be denied.

MicHaAEL D. Rossins

Trial Attorney

Unitep Arr Lines, INc.

1200 E. Algonquin Road

Elk Grove Township, IL

60007

(708) 952-5871

August 22, 1991

*Counsel of Record

Respectfully submitted,

WILLIAM J. Dritsas*

TyLeR A. BROWN

SEYFARTH, SHAW,

FAIRWEATHER & GERALDSON

101 California Street,

Suite 2900 _

San Francisco, California

94111-5858

(415) 397-2823

Attorneys for Respondent

United Air Lines, Inc.