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

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No. 91-334 Novae

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IN THI tae

OFF I@E OF

Supreme Court of the United States———

OCTOBER TERM, 199]

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ZLATKO GVOZDENOVIC, MARGARITA WALINSKI, PATRICIA

CARGOULD, and FRANK PERBA, individually and on behalf

of that class of 1202 FORMER PAN AM FLIGHT ATTEND

ANTS and Former Members of The Independent Union of

Flight Attendants Now Employed by United Air Lines, Inc.,

Petitioners,

SiTED AIR LINES, INC., STEPHEN WOLF, Its President, THI

ASSOCIATION OF FLIGHT ATTENDANTS, AFL-CIO, SUSAN

BIANCI-SAND, Its President, PATRICIA FRIEND, Chair-

the United Air Lines Master Executive Council.

D PREACQUISITION FLIGHT ATTENDANTS,

person of

and THE UNITI

Respondents.

ETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

URT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION TO

Eric Rosenfeld

SEYFARTH, SHAW, FAIRWEATHER

& GERALDSON

67 Third Avenue

New York, New York 10017

715-9000

Counsel of Record for Respondents

UNITED AIR LINES, INC. and

S / / Phil \ a ( )/ f, [ts President

QUESTIONS RESTATED

1. Did the court of appeals err in holding that

petitioners’ claim of violation by United and AFA of RLA

§ 2, Eleventh, by failing to accord the 1202 Pan Am flight

attendants hired February 11, 1986 a 60-day grace period to

become financial-core members of AFA, was time-barred.

2. Did the court of appeals err in holding that

petitioners’ claim of violation by United of RLA § 2,

Fourth, by making a payment of $132,700 for its arbitration

expenses to each of the two flight attendant groups party to

the arbitration proceeding over "competitive seniority" on or

about March 7, 1987, was time-barred.

ii

TABLE OF CONTENTS

QUESTIONS RESTATED ....ccccccecsvvccces i

TABLE OF CONTENTS .....2ccecesevecveees ii

TABLE OF AUTHORITIES ...........--.++.-. ill

STATEMENT OF THE CASE ..........+-e+-- 1

REASONS FOR DENYING THE WRIT ........ 7

I PETITIONERS SHOW NO CONFLICT

WITH THE COURT OF APPEALS’

HOLDING THAT THE CLAIM OF

VIOLATION BY UNITED AND AFA

OF RLA § 2, ELEVENTH IS

TIME-BARRED .......ccceceeessens 7

I] PETITIONERS MAKE NO ARGUMENT

FOR REVIEW OF THE COURT OF

APPEALS’ HOLDING THAT THE

CLAIM OF VIOLATION BY UNITED

OF RLA § 2, FOURTH IS

TIME-BARRED 2.0.0 ccccercuvevens i]

CONCLEISGION ..: so cecacecseueeuseea eee 11

ili

TABLE OF AUTHORITIES

Cases Page

DelCostello v. Int’]| Bhd. of Teamsters, :

462 U.S. 151, 103 S.Ct. 2281 (1983) .......... 2-3

Felter v. Southern Pacific Co., 359 U.S.

ee 7, 9-10

Local Lodge No. 1424, IAM v. NLRB, 362 USS.

411, 80 S.Ct. 822 (1960) .......... eee eee. 10

NLRB v. Campbell Soup Co., 378 F.2d 259

(9th Cir. 1967), cert. den. 389 U.S. 900,

ES ee 8

NLRB v. Gottfried Baking Co., 210 F.2d 772

RT tc ce vcccccercces 9

NLRB v. Sightseeing Guides and Lecturers

Union Local 20076 of Great2r N.Y.. 310

Rg )

Statutes

Labor-Management Reporting and Disclosure Act

("LMRDA")

Section 101(a)(3), 29 U.S.C. § 411(a)(3) .. 2... 2, 5

iv

Railway Labor Act ("RLA")

Section 2, Fourth, 45 U.S.C. § 152,

Eo on ie care ae a ee ie oO

Section 2, Eleventh, 45 U.S.C. § 152,

Ee ae as ea ee eee

Other Authorities

Rules of the Supreme Court of the United

SO oor ed eee so ee

Federal Rules of Civil Procedure, Rule 23

eee passim

ees passim

No. 91-334

In the

Supreme Court of the United States

October Term, 1991

ZLATKO GVOZDENOVIC; ET AL.,

Petitioners,

v.

UNITED AIR LINES, INC., ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

1

STATEMENT OF THE CASE

This is an action by four members of a class

consisting of the 1202 former Pan Am flight attendants

hired as a group by respondent United Air Lines, Inc.

-("United"/ on February 11, 1986, as part of United’s

acquisition of Pan Am’s Pacific routes on that date, pursuant

to a Letter of Agreement dated December 6, 1985 and

ratified March 14, 1986 with respondent Association of

Flight Attendants, AFL-CIO ("AFA"), the representative of

the craft or class of United’s flight attendants for purposes

of collective bargaining under the Railway Labo: Act. The

Letter of Agreement granted a package of favorable terms

and conditions of employment to the 1202 former Pan Am

flight attendants, including exception from the regular

60-day probationary period for becoming regular employees

of United; excepted them as well from the regular 60-day

grace period to become dues-paying "financial-core"

members of AFA; and provided for arbitration of their

"competitive seniority" vis-a-vis that of United’s 11,000 pre-

acquisition flight attendants.

The burden of the action is to vacate the arbitration

award rendered September 26, 1987, in the competitive-

seniority arbitration proceeding, on the ground, among

others, that the award reflected breach by AFA of its duty

of fair representation to the 1202 former Pan Am flight

attendants. Neither United nor AFA was a party to or

otherwise participated in the arbitration proceeding; the two

and only parties to the proceeding were the 1202 former

Pan Am flight attendants, by a committee of them selected

1/ United has a parent company, UAL Corporation. It

has no non-wholly-owned subsidiaries.

2

by their former union and funded by a payment of $132,700

by United, on or about March 7, 1986, into their own

arbitration bank account, and the 11,000 pre-acquisition

United flight attendants, by a committee of them selected by

respondent AFA and funded in the same way. ‘The

payments were made pursuant to the same United-AFA

agreement ratified March 14, 1986.

The action was commenced December 28, 1987,

nearly two years later, against AFA and AFA officers only.

As commenced that date, it also complained of the

February, 1986 failure to accord the 1202 former Pan Am

flight attendants a 60-day grace period, but only as an illegal

AFA dues increase under Labor Management Reporting

and Disclosure Act ("LMRDA") § 101(a)(3), 29 U.S.C.

§ 411(a)(3). On July 18, 1988, more than a year and a half

after commencement of the action, petitioners added a

claim that the February 1986 failure to accord a 60-day

grace period also constituted a violation by United and AFA

of Railway Labor Act ("RLA") § 2, Eleventh, 45 U.S.C.

§ 152, Eleventh, which permits carriers and_ labor

organizations to make agreements requiring financial-core

union membership after the first 60 days of employment,

and that the March 1987 payments to the arbitration

accounts of the two flight attendant groups party to the

arbitration proceeding constituted a violation by United of

RLA § 2, Fourth, 45 U.S.C § 152, Fourth, which bars

carriers from using their funds to assist or contribute to any

labor organization.

The Court of Appeals first, affirming the District

Court, upheld the validity of the arbitration award (Pet.

A6-10), adding a finding that the claim of AFA breach of

duty of fair representation was time-barred under the

6-month statute of limitations recognized in DelCostello v.

3

Int’l Bhd. of Teamsters, 462 U.S. 151, 169-71, 103 S.Ct.

2281, 2293-94 (1983)(A9). This brief will not further

address this portion of the Court of Appeals’ decision,

understanding as we do that AFA will be filing a brief

giving the reasons for denying the writ as to the award-

related issues raised or sought to be raised by the petition.

The Court of Appeals next found, affirming the

District Court, that the claims of violation of RLA § 2,

Eleventh and 2, Fourth were time-barred because:

The commencement of the suit’ on

December 27, 1987 was more than six months

after both the date on which appellants were

required to become AFA _ members,

February 11, 1986, and the date on which the

Letter of Agreement was ratified, March 14,

1986. Thus, the six-month period in which

appellants were required to protest any

unlawful denial of a sixty-day grace period or

unlawful financial assistance had lapsed. Cf.

DelCostello, 462 U.S. at 172; Robinson v. Pan

Am. World Airways, Inc., 777 F.2d 84, 87-89

(2d Cir. 1985).

(A10-A11), going on to reject petitioners’ argument to the

Court of Appeals, not being made in the petition here, that

violations "continued" until the time of the award:

Likewise, appellants’ argument that continued

hiring of former Pan Am flight attendants and

withdrawals by the Pan Am arbitration

committee from the finance account up until

the time of the arbitration award bring the

claims within the six-month statute of

4

limitations is meritless. These claims do not

allege "continuing" violations because any

"vice in the enforcement of this agreement is

manifestly not independent of the legality of

its execution, as would be the case, for

example, with an agreement invalid on its

face or with one validly executed, but

unlawfully administered." Local Lodge No.

1424, 362 U.S. at 423.

(Pet. All). In this regard we note, contrary to impressions

sought to be conveyed by petitioners in their petition,

(1) that the record shows only one post-February 11, 1986

hiring of a former Pan Am flight attendant during the six

months preceding petitioners’ making of their RLA § 2,

Eleventh claim (on July 18, 1988), that of F. Trevino on

March 11, 1988 (R. No. 32, p. 2, para. 6), and, in any event,

F. Trevino is not a member of the class for which the

District Court certified petitioners as the Rule 23

representative, which is the 1202 former Pan Am flight

attendants hired February 11, 1986, and (2) that the record

does not show any withdrawal by either flight attendant

group party tc the arbitration proceeding from its United-

funded arbitration bank account during the six months

preceding petitioners’ making of their RLA § 2, Fourth

claim (on July 18, 1988). Thus, nothing happened during

the six months prior to petitioners’ making of their claims of

violation of RLA § 2, Eleventh and 2, Fourth, so far as the

record shows, which could have triggered the applicable six-

month statute of limitations. Further contrary to

impressions sought repeatedly to be conveyed by petitioners

throughout their petition, which presents a supposed

decision by the Court of Appeals on the merits of the claim

of violation of RLA § 2 Eleventh as "[t]he most grievous

error of the Court of Appeals’ decision" (Pet. 6), the Court

5

of Appeals did not address or decide the claim of violation

of RLA § 2, Eleventh (or of § 2, Fourth) on its merits.

Finally, the Court of Appeals, first rejecting the

District Court’s finding that the claim of violation of

LMRDA § 101(a)(3) was time-barred (A11-A12), decided

that claim on the merits, against petitioners, in the folloving

paragraph which petitioners erroneously project throughout

their petition as a decision on the merits of the claim of

violation of RLA § 2, Eleventh:

However, even though the section

411(a)(3) claims is not time-barred, we hold

that it properly was dismissed. Besides the

simple fact that appellants have produced

little evidence of any illegal dues assessments

or increases, the sixty-day grace period of the

United-AFA collective bargaining agreement,

upon which they base their “unlawful dues

increase" claims, applies only to conventional,

newly-hired employees, not to individuals

hired laterally as a result of a merger. The

section provides that "[n]ewly employed flight

attendants" must apply for AFA membership

within sixty days of commencing employment,

and "shall be admitted to membership in the

Union upon expiration of their probationary

period as defined in . . . the Agreement."

During the probationary period, "the seniority

provisions of [the collective bargaining

agreement] do not apply to flight attendants

unless retained in the service of the Company

after the probationary period," and "[t]he

service of flight attendants may be terminated

at any time during the probationary period

6

without a hearing." However, the Letter of

Agreement excused the incoming flight

attendants from having to undergo a

probationary period, and gave them other

unique employment benefits because of the

circumstances under which they were hired.

Thus, it seems clear that the incoming flight

attendants were not "newly employed flight

attendants" as defined in the collective

bargaining agreement and were constrained to

pay the AFA dues immediately upon

commencing employment.

(A12). We repeat: whatever emanations this paragraph

may Or may not give as to how the Court of Appeals would

have decided the claim of violation of RLA § 2, Eleventh

on the merits, if it had decided that claim on the merits, it

didn’t decide that claim on the merits, and this case does

not, therefore, present that question to this Court on this

petition. Sup. Ct. R. 15.1.

7

REASONS FOR DENYING THE WRIT

There is no conflict, as petitioners assert (Pet.

Point III pp. 9-11), between the holding of the Court of

Appeals that the claim of violation of RLA § 2, Eleventh is

time-barred, and decisions of this Court and of "other

circuits," and petitioners do not even take the trouble to

argue their naked assertion that the holding of the Court of

Appeals that the claim of violation of RLA § 2, Fourth is

time-barred, presents such a conflict.

PETITIONERS SHOW NO CONFLICT WITH

THE COURT OF APPEALS’ HOLDING THAT THE

CLAIM OF VIOLATION BY UNITED AND AFA

OF RLA § 2, ELEVENTH IS TIME-BARRED

Petitioners appear to argue, in relation to ‘he claim

of violation of RLA § 2, Eleventh, that the decision of the

Court of Appeals in this case -- that the six-month statute of

limitations for suing on the allegedly violative union-security

agreement and its enforcement in this case ran from no

later than "the date on which appe!ants were required to

become AFA members, February 11, 1986, and the date on

which the Letter of Agreement was ratified, March 14, 1986"

(A10), whereas petitioners did not make the claim until

1988 (JA 1204-5) -- conflicts (A) with a Ninth Circuit

decision and two Second [sic] Circuits decisions,

Tespectively, "[finding] violations of union security clause

provisions to be continuing violations until terminated" (Pet.

9), and (B) with this Court’s decision in Felter v. Southern

Pacific Co., 359 U.S. 326, 79 S.Ct. 847 (1959), requiring,

according to petitioners, that “until such time as a valid

agreement and assignment is executed in compliance with

8

RLA Section 152 Eleventh" (Pet. 10), the statute of

limitations for suing on the union-security agreement in this

case "is tolled" (Pet. 10).

The cited Ninth and Second Circuit decisions do not

conflict with the holding of the Court of Appeals. In NLRB

v. Campbell Soup Co., 378 F.2d 259 (9th Cir. 1967), cert.

den. 389 U.S. 900, 88 S.Ct. 220 (1967), the Ninth Circuit

enforced an NLRB order directing both (1) an employer

who had required newly hired employees to join the union

immediately, and had deducted union dues and initiation

fees from the employees’ pay, during their first 30 days of

employment, and forwarded them to the union, and (2) the

union, jointly and severally,

"to reimburse all employees hired within six

months prior to the time the charge was filed

in this case for their first month’s dues, and to

reimburse those employees who, during the

same period, paid initiation fees but worked

less than thirty days for the initiation fees so

deducted."

(378 F.2d at 260) (emphasis added). This order, if issued in

this case, would not require United or AFA to pay a penny,

since petitioners and the class they represent were all hired

nearly 2-1/2 years prior to petitioners’ making of the charge

of violation of RLA § 2, Eleventh, and no dues deducted

during their first 60 days of employment were deducted

during the six months prior to the making of the charge.

How Campbell Soup comforts petitioners is a mystery. It is

implicit authority for the Court of Appeals decision in the

case at bar that petitioners’ claim of violation of RLA § 2,

Eleventh was time-barred because not made within six

9

months of the execution/ratification or enforcement of the

allegedly violative union-security agreement.

In NLRB v. Sightseein ides an rers Union

Local 20076 of Greater N.Y., 310 F.2d 40 (2d Cir. 1962),

and NLRB v. Gottfried Baking Co., 210 F.2d 772 (2d Cir.

1954), the Second Circuit enforced NLRB orders directing

a union which had caused an employer to discharge

(Sightseeing) or to refuse to hire (Gottfried) an employee

who refused to join the union during his first 30 days of

employment, and (in Gottfried only) the employer, to make

the employee whole for any loss of pay suffered, and to

cease and desist from maintaining and enforcing a contract

clause illegally conditioning employment upon membership

in the union. It is true but irrelevant that in both cases the

charge was filed more than six months after execution of the

agreement containing the illegal union-security clause. The

point is that in both cases there were union-security

violations -- discriminatory action causing loss of pay by an

individual, and maintaining of an illegal clause -- during the

six months preceding the filing of the charge. By contrast,

there were no violations during the corresponding six-

months limitations period in the case at bar. The violations,

if they were violations, which United and AFA disputed to

the hilt and which the Court of Appeals never decided, had

all taken place in 1986, two-plus years before the charges

were made in 1988 (JA 1204-S).

Nor does Felter conflict with the decision of the

Court of Appeals. Felter was an action, brought by an

employee 10 days (359 U.S. at 339, 79 S.Ct. at 856)

(dissenting opinion) after his union declined to honor his

written revocation of a previous check-off authorization

because he had not used the revocation form required by

the collective bargaining agreement, to invalidate that

10

requirement as violative of the proviso of RLA § 2,

Eleventh (b):

"that no such agreement [permitting a carrier

and a labor organization to make a dues

check-off agreement] shall be effective with

respect to any individual employee until he

shall have furnished the employer with a

written assignment to the labor organization

. . » Which shall be revocable in writing after

the expiration of one year"

(emphasis added). This Court held the contractual

requirement to be violative of the § 2, Eleventh (b)-proviso.

Felter presented no statute of limitations question, and no

such question was addressed or decided in Felter. Yet

petitioners argue that Felter "tolls" the statute of limitations

in this case "until such time as a valid agreement and

assignment is executed in compliance with RLA Section 152

Eleventh" (Pet. 10). That cannot be, else the statute of

limitations would be tolled forever; in any event, no such

notion is found in Felter. Felter could fairly be argued to

stand for the proposition that, in regard to a union-security

provision argued to be invalid on it face, as in the case at

bar, the statute of limitations runs not only from the date of

execution (or ratification) of the agreement but from its

actual enforcement as to a particular individual as well.

The Court was so to state in Local Lodge No. 1424, IAM v.

NLRB, 362 U.S. 411, 423, 80 S.Ct. 822, 830 (1960). That

proposition, of course, would not aid petitioners, since they

failed to sue until 1988 (JA 1204-5) over either the

execution/ratification in 1986, or the enforcement, also in

1986, of the agreement requiring them and their class to pay

AFA dues during their first 60 days of employment which

started February 11, 1986.

11

There is no circuit or other conflict, such as

petitioners assert, justifying review.

Il

PETITIONERS MAKE NO ARGUMENT FOR

REVIEW OF THE COURT OF APPEALS’

HOLDING THAT THE CLAIM OF VIOLATION BY

UNITED OF RLA § 2, FOURTH IS TIME-BARRED

Petitioners, though they announce in their Question

Presented 3 (Pet. i) and in their point heading III (Pet. 9)

that they wish to challenge the holding of the Court of

Appeals that their claim of violation by United of RLA § 2,

Fourth was time-barred, make no argument for the point.

Perhaps they forgot. No sensible argument could have been

made: petitioners did not make their claim of violation by

United of RLA § 2, Fourth until July, 1988 (JA 1205),

whereas United had made the payments in question to the

two arbitration bank accounts in March, 1987, some 16

months earlier, and had done nothing in the premises during

the six months prior to July, 1988.

CONCLUSION

The petition for a writ of certiorari should be denied.

Dated: September 25, 1991

Respectfully submitted,

Eric Rosenfeld

Attorney for Respondents

UNITED AIR LINES, INC.

and STEPHEN WOLF, Its

President

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