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

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, FILED.

No. 91-334 SEP 24 199]

| P THE Clark

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

ZLATKO GVOZDENOVIC, et al.,

. Petitioners,

UNITED AIRLINES, INC.,

ASSOCIATION OF FLIGHT ATTENDANTS, AFL-CIO, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF IN OPPOSITION OF RESPONDENTS

ASSOCIATION OF FLIGHT ATTENDANTS,

SUSAN BIANCHI-SAND, PATRICIA FRIEND,

AND THE PRE-ACQUISITION

UNITED AIRLINES FLIGHT ATTENDANTS

STEPHEN B. MOLDOF

Counsel of Record

MICHAEL L. WINSTON

COHEN, WEISS AND SIMON

330 West 42nd Street

New York, New York 10036

(212) 563-4100

Attorneys for Respondents

Association of Flight Attendants,

Susan Bianchi-Sand,

Patricia Friend, and the

Pre-Acquisition United Airlines

Flight Attendants

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QUESTIONS PRESENTED FOR REVIEW

1. Whether the court below properly concluded that

plaintiffs’ claim that the Association of Flight Attendants

(“AFA”) breached its duty of fair representation by en-

tering into a collective bargaining agreement which pro-

vided that an arbitrator would determine plaintiffs’

competitive flight attendant seniority at United Airlines,

Inc. (“United”) was time-barred (in addition to being

meritless) where the suit was not filed until nearly two

years after the agreement was signed?

2. Whether the court below correctly declined to vacate

an arbitration award determining plaintiffs’ competitive

seniority rights at United when United and AFA were

authorized to submit the seniority issue to arbitration

and plaintiffs fully participated, without protest, in the

extensive and fair arbitration proceedings?

3. Whether the court below properly concluded that

plaintiffs’ claims that they were subjected to an unlawful

“closed shop” and that United unlawfully provided finan-

cial assistance to AFA were time-barred where suit was

not filed until nearly two years after the alleged wrongs

occurred?

(i)

ii

LIST OF PARTIES TO THE PROCEEDINGS

United Airlines, Inc., Stephen Wolf,* Association of

Flight Attendants, AFL-CIO, Susan Bianchi-Sand, Pa-

tricia Friend, and the Pre-Acquisition United Airlines

Flight Attendants were defendants in the district court,

appellees in the court of appea!s, and are respondents in

this Court.

Zlatko Gvozdenovic, Margarita Walinski, Patricia Car-

gould, Frank Perea, individually and on behalf of the

class of 1202 former Pan American Flight Attendants

now employed by United Airlines, Inc., were plaintiffs in

the district court, appellants in the court of appeals, and

are petitioners in this Court.

* Stephen Wolf, not listed as a party in the Petition, was a de-

fendant below and thus is a party to these proceedings. Supreme

Court Rule 12.4.

str

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ............... i

LIST OF PARTIES TO.THE PROCEEDINGS ....... ii

sana OF AUTHORITIES ......................................... iv

STATEMENT OF THE CASE ...............00.00.0000 1

SUMMARY OF ARGUMENT... 5

REASONS WHY THE WRIT SHOULD BE DENIED. 5

THE DECISION BELOW IS CONSISTENT

WITH DECISIONS OF THIS COURT AND

OTHER CIRCUITS AND DOES NOT MERIT

SUPREME COURT REVIEW ........................... 5

he 11

(iii)

iv

TABLE OF AUTHORITIES

CASES Page

Adkins v. General Motors Corp., 573 F. Supp. 1488

(S.D. Oh. 1983), aff'd, 769 F.2d 330 (6th Cir.

TI ies intact dc hi eee 10

Ackins v. International Union of Elec. Workers,

769 F.2d 380 (6th Cir. 1985) ................................ 6

Air Line Pilots Ass’n, Int'l v. O’Neill, 111 S.Ct.

SO a icc eee ca cet 5

Air Wisconsin Pilots Protection Comm. v. Sander-

son, 909 F.2d 213 (7th Cir. 1990), cert. denied,

DR a re a aiadetetetaccctdeaseactedcecieenwnsioss«s 5

Arriaga-Zayas Vv. ILGWU, 835 F.2d 11 (1st Cir.

1987), cert. denied, 486 U.S. 1033 (1988) ........ 6

Beardsley v. Chicago & N.W. Transp. Co., 850

F.2d 1255 (8th Cir. 1988), cert. denied, 489

8 > Race emcee aa NER 8

Bedat v. McLean Trucking Co., 119 L.R.R.M.

(BNA) 2945 (D. Conn.), aff’d without opinion,

. Be £.. Be Oe | ae 10

Boyd v. Teamsters Local Union 553, 589 F. Supp.

FS OR eee ee 6

Carter v. Newsday, Inc., 76 F.R.D. 9 (E.D.N.Y.

|) RRR eta Reinet tanner Aa nao id ten 9

Communication Workers v. Beck, 487 U.S. 735

1; SENSUAL eS EARRR ES OE RPMI RD Seance (7p SE AIERRS EARS 19

Cook v. Pan Am World Airways, Inc., 771 F.2d

635 (2d Cir. 1985), cert. denied, 474 U.S. 1109

> AES TERE Ua secre ET es ca Wey fae ee 8

DelCostello v. International Bhd. of Teamsters,

Ie I I II eet: snccecclocuateemencrmmninaravens 6,7

Delaware State College v. Ricks, 449 U.S. 250

NI a ned ce es ee 9

Electrical Workers v. Robbins & Myers, Inc., 429

Se Be IED cciceosssicechineenseneeevisatlonsastueiiemiamiases 6

Ellis v. Western Airlines, 652 F. ‘Supp. 938 (S.D.

Os a ee er ee 10

Engelhardt v. Consolidated Rail Corp., 594 F.

Supp. 1157 (N.D.N.Y. 1984), aff'd, 756 F.2d

| 8. Bs ah | SRC eee 6, 10

Felter v. Southern Pac. Co., 359 US. 326 (1959). 10

Vv

TABLE OF AUTHORITIES—Continued

Page

Hecht v. Cooperative for Am. Relief Everywhere,

Inc., 351 F. Supp. 305 (S.D.N.Y. 1972) ........... 9

Hogan v. Brotherhood of Ry. Clerks, 817 F. 2d 248

Ra i ie as rece Ae ee eee ae 7,9

International Bhd. of Teamsters, Local 117 Vv.

Washington Employees, Inc., 557 F.2d 1345 (9th

A EE we a noe ea Na er SE 8

J.I. Case Co. v. NLRB, 321 U.S. 332 (1944)........ 7

Johnson V. Railway Express Agency, Inc., 421

a I eg PE Es se en 6

Jones V. Trans World Airlines, Inc., 495 F.2d 790

NR Re ee Se Ss he SOND 8

Jones Dairy Farm v. Local P-1236, UFCW, 760

F.2d 173 (7th Cir.), cert. denied, 474 U.S. 845

i clan ee a ee 8

Local 60, United Bhd. of Carpenters Vv. NLRB,

365 U.S. 651 (1961) ........ Rae et ina reenact. 10

Local Lodge 1424, 1.A.M. v. NLRB, 362 U.S. 411

a Ce 6,9

Lorance V. AT&T, 490 U.S. 900 (1989) 2.00... 9

Movement For Opportunity and Equality v. Gen-

eral Motors Corp., 622 F.2d 1235 (7th Cir.

| __RIR R aaeaereereieneTR iAr, e | A Ann Mn 9

NLRB vy. Campbell Soup Co., 378 F.2d 259 (9th

Cir.), cert. denied, 389 U.S. 900 (1967) .......... 10

NLRB vy. Gottfried Baking Co., 210 F.2d 772 (2d

| SU Eitan A Deana da Rel Maa ere Rreecrennscanen i Das 10

NLRB v. Laney & Duke Storage Warehouse Co.,

369 F.2d 859 (5th Cir. 1966) . 7

NLRB v. Sightseeing Guides Union Local 20076,

ok FO, ee | en ene en 10

Powell v. National Football Leaque, 711 F. Supp.

Ne ne ccunuiccanwumssiccesevass 5

Robinson v. Pan Am World Airways, Inc., 777

fe 8 BR. | eae ay Me sonnei tana Somer 7,33

Sanders v. Air Line Pilots Ass’n, Int'l, 361 F.

Supp. 670 (S.D.N.Y. 1973) 7,8

Selzer Vv. Board of Ed., 113 F.R.D. 165 (S.D.N.Y.

ra ae ae eens Ren 9

vi

TABLE OF AUTHORITIES—Continued

Teamsters Local 764 Vv. J.H. Merritt & Co., T70

EE ESS UID cates ancocsaciocnreremndonsedennestwevees

United Air Lines, Inc. Vv. Evans, 431 U.S. 553

EN Clea ne eer OL SNe a Ie ese

United indep. Flight Officers, Inc. v. United Air

Lines, Inc., 756 F.2d 1262 (7th Cir. 1985) —........

West v. Conrail, 481 U.S. 35 (1987) ........................

Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239

(3d Cir.), cert. denied, 421 U.S. 1011 (1975) _..

Wood v. National Basketball Ass’n, 602 F. Supp.

525 (S.D.N.Y. 1984), aff'd, 809 F.2d 954 (2d

ELT ot oe easninnanes

Zimmerman V. National Football League, 632 F.

| enone

STATUTES AND RULES

Labor Management Reporting and Disclosure Act

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

Railway Labor Act

Page

3

Section 2 Fourth, 45 U.S.C. § 152 Fourth ........ 3, 10,11

Section 2 Eleventh(a), 45 U.S.C. § 152 Elev-

i REPT ISS IIS CE DTI NT SAD

Supreme Court Rule 12.4 ..................0:c.ccecscsceeceseeeesorees

TREATISES

R. Gorman, Labor Law (1976) ..........00000002-...eeeeee. ;

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-334

ZLATKO GVOZDENOVIC, et al.,

: Petitioners,

UNITED AIRLINES, INC.,

ASSOCIATION OF FLIGHT ATTENDANTS, AFL-CIO, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF IN OPPOSITION OF RESPONDENTS

ASSOCIATION OF FLIGHT ATTENDANTS,

SUSAN BIANCHI-SAND, PATRICIA FRIEND,

AND THE PRE-ACQUISITION

UNITED AIRLINES FLIGHT ATTENDANTS

STATEMENT OF THE CASE

A. In April 1985, United Airlines, Inc. (“United’’)

agreed to purchase the Pacific Division of Pan American

World Airways, Inc. (“Pan Am”). App., A.3.’ As part

of the transaction, United agreed to hire 1,202 Pan Am

flight attendants (the “1202” or “‘plaintiffs’). Jd.

1“App. - * refers to the appendix annexed to the petition for

a writ of certiorari. “Pet. -’ refers to the petition. “J.A. ,

refers to documents in the joint appendix submitted to the court of

appeals.

2

Before any Pan Am flight attendants accepted United

job offers, they were informed that, pursuant to a col-

lective bargaining agreement reached between United and

the Association of Flight Attendants (“AFA”), the bar-

gaining representative for the United flight attendants,

the competitive seniority which the 1202 would have at

United would be determined in an arbitration between the

1202 and the incumbent United flight attendants. App.,

A.4, C.3. The agreement also provided, inter alia, that

the 1202 would be: credited with their entire service at

Pan Am for determining their pay level at United;

guaranteed positions at United’s west coast international

domiciles, even if more senior United flight attendants

desired those positions; and relieved from serving the

probationary period required of newly employed flight

attendants and, as a consequence, be afforded the im-

mediate, full protections of the United-AFA collective

bargaining agreement. J.A. 164-66, 276, 632-36, 949, 976-

78, 1105-10, 1134, 13842, 1374-75; see App., A.12.2 All

Pan Am flight attendants were guaranteed continued em-

ployment with Pan Am; none was compelled to join

United. App., A.4, C.3.

The 1202 commenced United employment on February

11, 1986. App., A.4. Thereafter, the promised arbitration

took place; the 1202 fully participated, without objection,

through their chosen committee * and counsel, as did the

incumbent United flight attendants. App., A.4-5, A.7,

C.8. In September 1987, the arbitrator, who had been

jointly selected by the two committees, issued a final

award (the “Award’’) integrating the 1202 into the

2The United-AFA Agreement was reached in December, 1985,

App., A.4, ratified in January 1986, App., B.3, and formally signed

on March 14, 1986. J.A. 636, 960-61.

3 Contrary to the caption and the list of parties in the Petition,

Pet., p. (i), the four named plaintiffs were not members of the

Co.nmittee which represented the 1202 in the arbitration. E.g.,

J.A. 197-200.

3

United seniority list in a manner which the arsitrator

considered to be most “equitable.” App., A.5; J.A. 274.

The basis for the Award was “carefully and thoroughly

described” in the arbitrator’s lengthy opinion. App., C.5.

B. On December 28, 1987, four of the former Pan Am

flight attendants filed suit on behalf of the 1202 against

United, AFA and certain officials of each organization.

App., A.5. Plaintiffs claimed, inter alia, that the Award

should be vacated because the 1202 were not parties to

the underlying agreement which provided for the arbitra-

tion, and that the Award was procured in violation of

AFA’s duty of fair representation (“DFR”). App., A.5-

6. Plaintiffs subsequently asserted that an alleged re-

quirement that the 1202 become AFA members immedi-

ately upon employment with United and the denial of

plaintiffs’ alleged right to full credit for their seniority

at Pan Am violated § 2 Eleventh(a) of the Railway Labor

Act (“RLA”), 45 U.S.C. § 152 Eleventh(a). App., A.5,

10; J.A. 458-69. Without further amending their com-

plaint, plaintiffs additionally, through briefs, alleged that

AFA received improper financial assistance from United

in violation of §2 Fourth of the RLA, 45 U.S.C. § 152

Fourth, and that AFA improperly raised the dues of

the 1202 in violation of § 101(a) (3) of the Labor Man-

agement Reporting and Disclosure Act (“LMRDA”), 29

U.S.C. § 411(a) (3). App., A.5-6, 12.

At the conclusion of a bench trial, App. A.6, B.1 (not

as plaintiffs assert, on hearing of summary judgment

motions, Pet. p. 2), the district court rejected all of plain-

tiffs’ claims related to the issues tried, App., C.1-18, find-

ing, inter alia, that plaintiffs, having “consented to” and

“active[ly]” participated in the arbitration, were bound

by the resulting Award, App., C.8, that the United-AFA

Agreement establishing the arbitration treated the two

flight attendant groups “with perfect parity,” App., C.12,

that there ‘was no failure of any duty of fair representa-

tion,’ id., and that plaintiffs’ principal claims were en-

a

4

tirely baseless and ‘fa shocking example of wasteful liti-

gation.” App., C.13. The trial court subsequently ruled

that the RLA and LMRDA statutory claims were time-

barred. App., B.4-6. |

C. The Second Circuit affirmed the district court rul-

ings in their entirety. Among other things, the appellate

court concluded that plaintiffs were bound by the Award

because they actively and voluntarily participated in the

arbitration without objection and thus by their “conduct

manifested a clear intent to arbitrate the dispute,” and

also because, under established labor law principles, they

were bound by the terms of the collectively bargained

arbitration agreement upon their becoming part of the

United flight attendant collective bargaining unit. App.,

A.7-8. The court further concluded that AFA did not

breach its DFR by agreeing with United to leave the de-

termination of plaintiffs’ competitive seniority at United

to an arbitrator, and that, in any event, the DFR claim

was time-barred because it was not filed within six months

after the signing of the challenged arbitration agree-

ment. App., A.8-9. The court of appeals also affirmed

the trial court’s ruling that plaintiffs’ RLA claims were

time-barred. App., A.10-11. While the Second Circuit

did not find the LMRDA claim untimely, it nevertheless

affirmed its dismissal on the merits not only because plain-

tiffs had failed to demonstrate that AFA illegally in-

creased the dues of the 1202, App., A.12, but also because

the 1202 were granted significant “unique employment

benefits’ which distinguished them from “newly em-

ployed flight attendants,’ App., A.12; supra, p. 2, and

thus the imposition of dues immediately upon commence-

ment of the employment of the 1202 at United was ap-

propriate under the terms of the United-AFA agreement,

upon which plaintiffs’ claim was based. App., A.12.

5

SUMMARY OF ARGUMENT

The decision below involves the routine application of

fundamental labor law tenets to undisputed facts, see

Pet., p.4 (plaintiffs adopt court of appeals’ statement of

the facts), and is consistent with decisions of this and

other appellate courts. The Petition presents no issues

warranting Supreme Court review.

REASONS WHY THE WRIT SHOULD BE DENIED

THE DECISION BELOW IS CONSISTENT WITH

DECISIONS OF THIS COURT AND OTHER CIR-

CUITS AND DOES NOT MERIT SUPREME COURT

REVIEW

A. The Petition, on its face, demonstrates that review

of the determination below that the DFR claim was time-

barred would be purposeless. The Second Circuit rejected

the DFR claim not only on limitations grounds but also

on the merits. App., A.10; see App., C.2-12 (district

court also rejected DFR claim on merits).* The Petition

does not seek review of the dismissal on the merits; ac-

cordingly, the dismissal of the DFR claim will be unaf-

fected by any further disposition of the limitations issue.

In any event, the limitations ruling was correct. Plain-

tiffs claimed that AFA breached its DFR by entering

into an agreement with United which left the resolution

4The appellate court correctly applied this Court’s most recent

articulation of the DFR standard, Ai Line Pilots Ass’n, Int'l v.

O’Neill, 111 S.Ct. 1127, 1136 (199]), in determining that AFA did

not breach any representational duty by entering into an agreement

which left the seniority matter to resolution by arbitration between

the two affected employee groups. App., A.9-10. Accord Air Wis-

consin Pilots Protection Comm. vy. Sanderson, 909 F.2d 213, 216

(7th Cir. 1990) (where plaintiffs are provided ‘“‘a fair [arbitration ]

process for determining [their] seniority . . . nothing more is

required to comply with the duty of fair representation”) (emphasis

in original), cert. denied, 111 S.Ct. 958 (1991).

6

of the competitive seniority issue to arbitration and which

purportedly provided for an arbitration process which

favored the incumbent Unitea flight attendants. J.A. 458-

69; App., €.7. The lower court, in accordance with es-

tablished precedent, held that a DFR claim is subject to

a six-month statute of limitations, DelCostello v. Inter-

national Bhd. of Teamsters, 462 U.S. 151, 169-71 (1983),

and when, as here, it is predicated on an allegedly im-

proper agreement, it accrues when the agreement is

reached. App., A.9.° Because plaintiffs did not sue until

nearly two years after execution of the challenged agree-

ment, the DFR claim -was time-barred. Plaintiffs’ con-

tention that the limitations period should have been

“tolled” while they awaited the arbitrator’s ruling, Pet.

pp. 11-12, even though their claim was that the arbitra-

tion proceeding was defective ab initio, would permit

plaintiffs to improperly “pin the . . . arbitration pro-

ceeding onto their [DFR] case in order to extend the ap-

plicable limitations period,” Arriaga-Zayas v. ILGWU,

835 F.2d 11, 15 (1st Cir. 1987), cert. denied, 486 U.S.

1033 (1988), and runs directly counter to the need for

“rapid final resolution of labor disputes favored by fed-

eral law.” DelCostello, 462 U.S. at 168.° None of the

5 Local Lodge 1424, 1.A.M. v. NLRB, 362 U.S. 411, 415-19 (1960) ;

United Indep. Flight Officers, Inc. v. United Air Lines, Inc., 756

F.2d 1262, 1273 (7th Cir. 1985); Engelhardt v. Consolidated Rail

Corp., 594 F. Supp. 1157, 1172 (N.D.N.Y. 1984), aff'd, 756 F.2d

1368 (2d Cir. 1985).

8 See also Adkins v. International Union of Elec. Workers, 769

F.2d 330, 335 (6th Cir. 1985) (no tolling of DFR six-month limi-

tation during pendency of National Labor Relations Board proceed-

ing addressing same conduct challenged in DFR action); Boyd v.

Teamsters Local Union 558, 589 F. Supp. 794, 796 (S.D.N.Y. 1984)

(same); cf. Electrical Workers v. Robbins & Myers, Inc., 429 U.S.

229, 236 (1976) (no toiling of Title VII statute of limitations while

plaintiff pursues relief through grievance proceedings for same

alleged wrongdoing); Johnson v. Railway Express Agency, Inc.,

421 U.S. 454, 460-66 (1975) (time for filing claim under 28 U.S.C.

§ 1981 not tolled by pursuit of administrative remedy directed at

same conduct).

7

cases on which plaintiffs rely (Pet., pp. 11-12) supports

“tolling” the statute of limitations here.’

B. Plaintiffs’ contention that they are not bound by

the Award or the underlying arbitration agreement be-

cause they were not employees of United when the agree-

ment was reached, Pet., pp. 12-13, is at odds with basic

principles of federal labor law. As the Second Circuit

correctly held, App., A.7, a collective bargaining agree-

ment, including one providing for arbitration, applies not

only to employees in the bargaining unit when the agree-

ment is reached, but also to those who join the bargaining

unit during the agreement’s duration; an employer and

union need not renegotiate or reaffirm their agreement

each time a new employee is hired in order to bind the

individual to the agreement’s terms.* Sanders v. Air Line

Pilots Ass’n, Int'l, 361 F.Supp. 670, 672-73 (S.D.N.Y.

1973), Pet., pp. 12-13, merely confirms the uncontest-

able tenet that employees of the surviving company in a

merger (in our case, the incumbent United flight at-

7West v. Conrail, 481 U.S. 35, 36 (1987), confirms that a DFR

action begins to run when plaintiffs learn of the union’s alleged

breach. Robinson v. Pan Am World Airways, Inc., 777 F.2d 84, 89

(2d Cir. 1985), discusses the applicability of equitable tolling in a

situation, indisputably absent here, where defendants have actively

misled plaintiffs as to the facts giving rise to their cause of action.

No arbitration proceeding or award was involved in Hogan V.

Brotherhood of Ry. Clerks, 817 F.2d 248, 250 (4th Cir. 1987), and

nothing in DelCostello, 462 U.S. at 172, holds that the limitation

period of a DFR claim that is founded, as here, on the terms of a

collective bargaining agreement, is tolled until issuance of an arbi-

tration award.

8 JI. Case Co. v. NLRB, 321 U.S. 332, 335-36 (1944); NLRB v.

Laney & Duke Storage Warehouse Co., 369 F.2d 859, 866 (5th Cir.

1966); Wood v. National Basketball Ass’n, 602 F. Supp. 525, 529

(S.D.N.Y. 1984), aff'd, 809 F.2d 954 (2d Cir. 1987); Powell v.

National Football League, 711 F. Supp. 959, 962-63 (D. Minn.

1989); Zimmerman V. National Football League, 632 F. Supp. 398,

405 (D.D.C. 1986); R. Gorman, Labor Law 377 (1976). Different

principles apply when dealing with commercial arbitrations, App.,

8

A.7, as in the cases cited at Pet., p. 12.

tendants) are not bound by the collective bargaining

agreement between the acquired company and its em-

ployees’ union (here, the agreement between Pan Am and

the bargaining representative of the Pan Am flight at-

tendants). Further, both Sanders, 361 F.Supp. at 678,

677, and Cook v. Pan Am World Airways, Inc., 771 F.2d

635, 645-46 (2d Cir. 1985), cert. denied, 474 U.S. 1109

(1986), Pet., p. 13, reflecting established law, including

the ruling below, App., A.7, hold that, where, as here,

plaintiffs’ interests have been represented in an arbitra-

tion proceeding, they are bound by the ensuing award.’

C. Plaintiffs’ request for review of the dismissal of

their RLA Section 2 Eleventh(a) claim rests on a mis-

construction of the ruling below and a misreading of the

applicable law.

First, contra Pet., pp. 5-6, the Second Circuit only

determined that the RLA claim was time-barred, App.

A.10-11; it did not purport to address the scope of the

statutory provision.

®B.g., Teamsters Local 764 Vv. J.H. Merritt & Co., 770 F.2d 40, 42

(3d Cir. 1985); Jones Dairy Farm vy. Local P-1236, UFCW, 760

F.2d 173, 175 (7th Cir.), cert. denied, 474 U.S. 845 (1985); Inter-

national Bhd. of Teamsters, Local 117 Vv. Washington Employees,

Inc., 557 F.2d 1345, 1350 (9th Cir. 1977).

Beardsley Vv. Chicago & N.W. Transp. Co., 850 F.2d 1255 (8th—

Cir. 1988), cert. denied, 489 U.S. 1066 (1989), and Jones v. Trans

World Airlines, Inc., 495 F.2d 790, 797-98 (2d Cir. 1974), Pet.,

pp. 13-14, sharply contrast with the situation here in which the

United-AFA Agreement left the seniority issues to determination

through an arbitration in which plaintiffs were full and equal

participants. In Beardsley, the agreement (to which the arbitrator

improperly deferred) determined plaintiffs’ substantive seniority

rights (placing them at the bottom of the seniority list), and was

negotiated by local union officers in violation of both the require-

ments imposed by the governing collective bargaining agreement

negotiated by the local’s parent international union and the inter-

national’s construction of its constitution. 850 F.2d at 1259, 1261-63,

1268-71. In Jones, the union negotiated an agreement which placed

a group of employees who were already in the bargaining unit at the

bottom of the seniority list solely because they were not union

members. 495 F.2d at 797-98.

9

Second, the appellate court’s rejection of plaintiffs’

“continuing” violation theory, App., A.11, is in accord with

decisions of this Court and other appellate courts. Be-

cause the alleged improper requirement that plaintiffs

join AFA upon employment at United was embodied in

the United-AFA agreement, see Pet., p. 11 (plaintiffs’

compulsory union membership claim “inextricably bound

up” with agreement), it accrued at the latest when the

agreement was signed (March 14, 1986), and is time-

barred. App., A.11; Local Lodge 1424, 362 U.S. at 423;

Hogan, 817 F.2d at 250 (six-month limitation applicable

to RLA §2 Eleventh claim); supra, p. 6 & n.5. Fur-

ther, even assuming arguendo that plaintiffs were en-

titled to a 60 day “grace period” under Section 2 Elev-

enth before AFA membership could be required, member-

ship indisputedly could have been required, and thus any

alleged violation would have ceased, 60 days after the em-

ployment of the 1202 commenced, 7.e., by April 12, 1986.

Hogan, 817 F.2d at 250 (claim of improper compulsion

to join union accrues when alleged unlawful coercion

ends). The refusal of the lower court to permit plain-

tiffs to sidestep the limitations bar by characterizing

their claim as “continuing,” App. A.11, or by relying on

alleged timely claims of a handful of subsequently hired

former Pan Am flight attendants who were not class

members, see App., B.5, conforms with decisions of this

Court and the lower courts in the Title VII context,’ as

10 Lorance V. AT&T, 490 U.S. 900, 906-08 (1989) (limitation

period commenced when alleged discrimination occurred) ; Delaware

State College v. Ricks, 449 U.S. 250, 257-59 (1980) (same); United

Air Lines, Inc. Vv. Evans, 431 U.S. 553, 558-60 (1977) (same). See

Movement For Opportunity and Equality v. General Motors Corp.,

622 F.2d 1235, 1248 (7th Cir. 1980) (timely claims of certain class

members cannot revive time-barred claims of others); Wetzel Vv.

Liberty Mutual Ins. Co., 508 F.2d 239, 246 (3d Cir.) (same), cert.

denied, 421 U.S. 1011 (1975); Selzer v. Board of Ed., 113 F.R.D.

165, 168 (S.D.N.Y. 1986) (same); Carter v. Newsday, Inc., 76

F.R.D. 9, 15 (E.D.N.Y. 1976) (same); Hecht v. Cooperative for

Am. Relief Everywhere, Inc., 351 F. Supp. 305, 310 (S.D.N.Y. 1972)

(same).

10

well as other lower court labor law decisions."' The au-

thorities cited by plaintiffs, Pet. pp. 9-10, are either con-

sistent with the ruling below, NLRB v. Campbell Soup

Co., 378 F.2d 259 (9th Cir.), cert. denied, 389 U.S. 900

(1967) ,’* or inapposite.*

D. Plaintiffs also provide no basis for review of the

Second Circuit’s refusal to treat plaintiffs’ claim under

§ 2 Fourth of the RLA, 45 U.S.C. § 152 Fourth, as ‘“con-

11 United Indep. Flight Officers, 756 F.2d at 1273 & n.14 (reject-

ing assertion of continuing violation and determining that claim

accrued when alleged wrong occurred); Engelhardt, 594 F. Supp.

at 1171-72 (same); Bedat v. McLean Trucking Co., 119 L.R.R.M.

(BNA) 2945, 2946-47 (D. Conn.) (same), aff'd without opinion,

794 F.2d 676 (2d Cir. 1984); Adkins v. General Motors Corp., 573

F. Supp. 1188, 1193 (S.D. Oh. 1983) (same), aff'd, 769 F.2d 330

(6th Cir. 1985).

12Tn Campbell, the reimbursement of one month’s dues for viola-

tion of a 30 day “grace period” provided under the National Labor

Relations Act was available only to those “employees hired within

six months prior to the time the charge was filed... .” 378 F.2d

at 260-61.

13 Felter v. Southern Pac. Co., 359 U.S. 326, 331 (1959), provided

simply that an individual cannot be subjected to a union dues check-

off (of which, contra, Pet., p. 10, there is none at issue in the in-

stant case) until the employee executes a checkoff assignment, and,

contra, Pet., p. 10, makes no mention of a “‘six month” period or its

“tolling” or ‘‘waiver.” Neither does Communication Workers v.

Beck, 487 U.S. 735 (1988), which, like Ellis v. Western Airlines,

652 F. Supp. 938 (S.D. Cal. 1986), concerned issues related to the

chargeability of union expenditures to objecting non-members which

have nothing to do with this case. NLRB v. Sightseeing Guides

Union Local 20076, 310 F.2d 40, 41 (2d Cir. 1962), and NLRB v.

Gottfried Baking Co., 210 F.2d 772, 780 (2d Cir. 1954), involved

illegal closed-shop agreements which, unlike here, continued to favor

the hiring of union members over non-union members within six

months of the filing of NLRB charges. Further, even where a

closed-shop agreement exists, no dues reimbursement is required

where, as here, there is no evidence that union membership was

compelled. Local 60, United Bhd. of Carpenters v. NLRB, 365 U.S.

651, 654 (1961). See App., B. 3 (15% of plaintiffs’ class elected not

to become AFA members).

11

tinuing” beyond the limitations period. The § 2 Fourth

claim was based on United’s provision of equal funding to

the committees representing the two flight attendant

groups for activities related to the arbitration. App.,

A. 4; see also J.A. 639, 1480-81 (funding not provided

to AFA).™ Because all payments were made in March

1986, id., plaintiffs’ failure to sue within six months

thereafter was fatal, as the court below properly held.

App., A. 10-11. Accord Robinson, 777 F.2d at 87-89 (six-

month limitation applicable to RLA § 2 Fourth claim) ;

see cases cited supra, pp. 9-10 & nn.10, 11 (claim does

not continue once allegeu violation ended).

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

STEPHEN B. MOLDOF

Counsel of Record

MICHAEL L. WINSTON

COHEN, WEISS AND SIMON

330 West 42nd Street

New York, New York 10036

(212) 563-4100

Attorneys for Respondents

Association of Flight Attendants,

Susan Bianchi-Sand,

Patricia Friend, and the

Pre-Acquisition United Airlines

Flight Attendants

144The funding arrangements which AFA _ secured benefitted

plaintiffs by eliminating the significant financial advantage which

the incumbent United flight attendants, who outnumbered the 1202

by 9 to 1, would have enjoyed had the two groups been required to

underwrite their own arbitration-related legal fees and costs through

an assessment of their respective flight attendant constituents.

J.A. 491 © H, 639, 1480-82,

a