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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 865

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2459%3A2. Public record. Not legal advice.