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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2606%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 910

## Text

‘\

, 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

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001

_—
®@ ctiiu2™.. 0
raat"

Lay

° . \ ‘ i
: id ‘ A , ; | ke
rl aS rea? a 3
PS ial 3 Be
e be ~
@ oy .
y: ~ a . 2 q . ¢
- ie é | nae
’ ore }
™ + t
a? § . o
1 A ’
-< A 5 . = ’
= r! | i
i ; 3 . ‘
— ys : t ; { 4 =
’ Z nek } ay
a a — Fie } abe
: ‘ ‘ /
. - i a
* — £ { a
\ 1 , a 4 tLe s
, ~ A . ~~ f , i 9
¥ | [=
. { > 7 » 1 _ ; » *
i veri r ee ‘ i 9 =i
t b . ex = ‘
\ . = se é :
G 5 x a ’
, } ‘ ; , HEAS ek ‘ ~ a4
~ \ 4 ~ ~ - +™
~~ f A \ ‘ ‘ | nm i
| ‘ e ’ r ‘3 tes — .
| . f A , ; ;
. | ri) ~ } 7 .
> } , > Ais eit A oy 7 -
. | b ' ; es ou
? >: oa ’ nf r i 3 4
a : \ oy i
} ; 2 ‘ Gs - Z
Os ~ ng 2 7 5
‘ oe ¥ P , | =
: - L : e rm
= * \ ~ 7 \ ; 2
t 1 — ‘ s ‘ Ss > ? !
2 4 4 ; © | u rit
a . if { :
j rs | °
= / z th) ~ ;
2 t
z ( av
i ha : oX4 /
f ¥ 1 ‘

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2606%3A3. Public record. Not legal advice.