Opposition Brief — Air Line Pilots Ass'n v. O'Neill

No. 89-1493 ä

eo 9 7

Supreme Court of the United states

October Term, 1989

AIR LINE PILOTS ASSOCIATION INTERNATIONAL,

Petitioner.

V.

JOSEPH E. O'NEILL, er ac.,

Respondents

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

„John P. Frank

Marty Harper

Allen R. Clarke

Janet Napolitano

LEWIS AND ROCA

40 North Central Ave

Phoenix, Arizona 85004

(602) 262-5311

Counsel for Respondents

Joseph E. O'Neill, et al.

*Counsel of Record

April 23, 1990

TABLE OF CONTENTS

— — ——

Zr

REASONS FOR DENYING THE WRIT ........... —

II.

IV.

This Court Should Not Issue A Writ of Cer-

tiorari To Review The Interlocutory Decision

Of The Fifth Circuit Court Of Appeals Be-

cause The Ultimate Outcome Of This Case Is

This Court’s Recent Decision In Chauffeurs,

Teamsters & Helpers, Local No. 391 v. Terry

Resolves Any Question Over The Applicable

0 TTTV—»k!B

There Is No Split Among The Circuits On

The Legal Standard Applicable To The

Union's Conduct In This Case

There Is No Conflict Between The Ruling

Below And This Court's Decision In Trans

World Airlines, Inc. v. Independent Federa-

tion of Flight Attendants

iv

TABLE OF AUTHORITIES Cont'd

Case Page

Independent Federation of Flight Attendants v.

Trans World Airlines, Inc., 819 F.2d 839 (8th Cir.

| | en 11

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

1. , ˙ ß... 12

Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41

6 ..... ˙ 7

NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963) ......4, 5, 11

NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967) .. 4

O'Neill v. ALPA, 886 F.2d 1438 (5th Cir. 1989 5, 6

Parker v. Connors Steel Co., 855 F.2d 1510 (11th Cir.

1988), cert. denied, 109 S. Ct. 2066 (1989 10

Scofield v. NLRB, 394 U.S. 423 (1969992 12

Tedford v. Peabody Coal Co., 533 F.2d 952 (5th Cir.

—füu ðX—U—I—ñ Jßßßßßßß 8, 10, 12

Thomas v. United Parcel Service, Inc., 890 F.2d 909

(7th Cir. 19899 —ü— p 10

Trans World Airlines, Inc. v. Independent Federation

of Flight Attendants, 109 S. Ct. 1225 (1989) ............ 10, 11

Trans World Airlines, Inc. v. Independent Federation

of Flight Attendants, 108 S. Ct. 1219 (1988) ............ 11

United Mine Workers of America Health & Retire-

ment Funds v. Robinson, 455 U.S. 562 (1982).......... 9. 12

Vaca v. Sipes, 386 U.S. 171 (1987 8,9

Rules, Regulations and Statutes

United States Code:

III . 0. 4

1. ͤͤç:] 2

6 USC. L 2

No. 89-1493

In The

Supreme Court of the United States

October Term, 1989

AIR LINE PILOTS ASSOCIATION INTERNATIONAL,

Petitioner,

v.

JOSEPH ü E. O'NEILL. Ir

Respondents.

—

On Nrit of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

COUNTERSTATEMENT OF

QUESTIONS PRESENTED

This is a fair representation dispute between striking pilots

and their union. The questions presented are as follows:

1. Whether review by this Court of an order remanding a

summary judgment case for trial is premature.

2. Whether the duty of fair representation precludes ar-

bitrary actions by a union in negotiating a strike settlement

and, if so, whether there is sufficient factual showing of ar-

bitrary conduct here to warrant trial.

3. Whether the criteria applied by the Fifth Circuit contlict

with any decisions of this Court or any Circuit.

2

ADDITIONAL PARTIES

In addition to the named plaintiffs listed on page ii of the

petition, Respondents (hereinafter the O'Neill Group” or the

pilots“) comprise a certified class of approximately 1,400

past or present Continental Air Lines (“Continental”) pilots

who withdrew their services from Continental at any time

from October 1, 1983 through October 31, 1985, in connec-

tion with a strike called by their union, the Air Line Pilots As-

sociation, International (“ALPA”), and who were not working

for Continental on October 31, 1985, the date the strike ended.

COUNTERSTATEMENT OF THE CASE

Brief Procedural History.

This dispute arises out of a secret strike settlement reached

by ALPA with Continental. In its amended complaint, the

O'Neill Group sought recovery on four counts. Count One al-

leged a breach of the duty of fair representation which ALPA

and various ALPA officers owed the pilots under the Railway

Labor Act, 45 U.S.C. §§ 151 et seg. Count Two alleged a viola-

tion of the voting rights of the pilots guaranteed under Section

101(a)(1) of the Labor-Management Reporting and Disclosure

Act (“LMRDA”), 29 U.S.C. § 411. The O'Neill Group also as-

serted two additional claims.

The discovery was extensive and the record was complex,

comprising in excess of 6,000 pages. In August 1987, ALPA

moved for judgment on the pleadings and for summary judg-

ment on all counts. The O’Neill Group’s response included five

volumes of affidavits and other exhibits. Immediately fol-

lowing oral argument in November 1987, the trial court

granted ALPA’s summary judgment motion and dismissed the

O'Neill Group’s suit. The only explanation for the ruling were

some remarks from the bench.

The O'Neill Group appealed the summary judgment as to

the duty of fair representation and LMRDA claims and, on

October 31, 1989, the Fifth Circuit issued its opinion

affirming as to the LMRDA claim but reversing and finding

disputed issues of fact as to the duty of fair representation

claim. ALPA’s request for a rehearing and for a rehearing en

3

banc was rejected by the Fifth Circuit in an order dated

December 27, 1989.

ALPA’s Agreement To The Secret Strike Settlement.

ALPA has omitted critical facts from its statement of the

case and stated items as “fact” when they are heavily dis-

puted. We emphasize here some points that were important to

the Fifth Circuit’s ruling.

The focus of this case is a secret strike settlement that

ALPA representatives reached with Continental in October of

1985 and maneuvered to have entered as a bankruptcy court

“order and award” on October 31, 1985 (R 149).' The secret

strike settlement altered the seniority bidding system Con-

tinental used before and during the strike. Under this system

any pilot interested in a pilot position could bid for his pre-

ferred position by status (i.e., captain, first officer, second

officer), base (city), and equipment type (R 163, Att. 9). Con-

tinental then allocated vacant pilot positions solely according

to seniority, determined by the date a pilot first flew for Con-

tinental (id.).

ALPA’s secret strike settlement altered the seniority system

beginning with Continental’s “85-5 bid.” The 85-5 bid was a

posting in September 1985 of over 440 pilot vacancies that

would be available in 1986 (R 149, Ex. 80; R 163, Att. 8). Con-

tinental awarde the 85-5 bid positions to pilots who

worked during the strike (the nonstrikers“) but the positions

were still vacant when the strike ended on October 31, 1985.

ALPA nonetheless agreed with Continental to give the non-

strikers “superseniority” preferences for the 170 captain posi-

' “R” references are to the record in the district court, as identified by

that court's docket sheet. The secret strike settlement agreement (the “order

and award is No. R 149, and a copy is appended to ALPA’s petition as

Appendix 4.

* ALPA mischaracterizes the decision below as holding that strikers

could “displace” permanent replacements from the positions awarded under

the 85-5 bid (pet., p. 9). The record was uncontroverted that the positions

had not been filled by nonstrikers before the strike ended.

4

tions in the 85-5 bid and the captain positions that became

available in subsequent bids after the strike.

The settlement gave the first 100 captain positions in the

85-5 bid to nonstrikers, even though they were far less senior

than the returning strikers many of whom were captains be-

fore the strike, and the remaining 70 to returning strikers who

agreed to waive bankruptcy claims against Continental‘ (R

149, Ex. 39). It also gave the nonstrikers half of Continental’s

post-strike captain positions under a 1:1 ratio that required

one nonstriker to become a captain for every striker who ad-

vanced to captain after the strike, despite the nonstriker’s low-

er seniority (id.). In both cases the settlement permitted

nonstrikers to bid for the captain positions of their choice and

Continental assigned the returning strikers to only the posi-

tions not picked by the nonstrikers (id.).

The Long-Term Effects Of The Secret Strike

Settlement.

The secret strike settlement was a major change in Con-

tinental’s seniority bidding system. In one illustrative case,

the settlement allowed a nonstriker to become a captain ahead

3 Superseniority is a term of art that refers to granting seniority-based

benefits on some criteria other than seniority to employees whose seniority

would not otherwise entitle them to those benefits. In NLRB v. Erie Re

sistor Corp., 373 U.S. 221, 235 (1963), this Court held that superseniority

preferences based upon nonparticipation in concerted activity is “inherently

discriminatory” and, therefore, unlawful. See NLRB U Fleetwood Trailer

Co., 389 U.S. 375 (1967) (strikers are entitled to nondiscriminatory rein-

statement as vacancies become available after a strike).

4 Returning strikers who refused to waive claims as a condition of recall

were put at the end of the recall list, regardless of their overall seniority, the

dates they offered to return to work or any other objective factor (R 149,

Ex. 39). It is unlawful to require strikers to waive such rights as a condition

of recall after a strike. American Cyanamid Co. v. NLRB, 592 F.2d 356 (7th

Cir. 1979).

5

of a returning striker who was a captain before the strike and

had 19 years more seniority ° (R 163, Att. 13).

ALPA negotiator Kirby Schnell summed up the effect of

these provisions in notes he made during the last couple days

of negotiations. In Schnell’s words, the settlement bas-

tardized [seniority] beyond all recognition” and “f—ked my

people forever (R 163, Att. 7.5). In other notes Schnell de-

scribed the 1:1 ratio as follows:

1:1 forever busts sen[iority]. Deal so far already violated

that concept I've already killed myself on that issue. To

go further bastardizes the senſiority] concept forever.

(R 149, Ex. 1.1). Indeed, the settlement was so bad that an

unconditional offer to return to work would have been better

for the striking pilots. ° ALPA therefore insisted on submitting

the settlement to the bankruptcy court rather than having

ALPA’s president sign his name to it and present it to the pi-

lots for ratification ‘ (R 149, Exs. 9, 10; R 163, Att. 4). ALPA

This is nearly identical to the preference the Court struck down in

NLRB v. Erie Resistor Corp, 373 U.S. 221 (1963) (unlawfui for employer to

give nonstrikers a 20-year seniority preference in post-strike advancement).

The record below showed that Continental maintained its seniority

bidding procedure throughout the strike and allowed crossovers to bid their

full pre-strike seniority while still on the preferential recall list awaiting re-

call. Continental had previously returned striking flight attendants and

machinists to work in seniority order to available positions when their un-

ions made unconditional offers to return to work (R 163, Att. 5.5). ALPA’s

outside lawyers advised ALPA that Continental would be required to fill va-

cancies with returning strikers (R 163, Att. 5.5), just as United was required

to do in litigation concluded two months earlier. See ALPA v. L’nited Air

Lines, Inc, 614 F, Supp. 1020 (N.D. Ill. 1985), aff'd in relevant part, 802

F.2d 886 (7th Cir. 1986), cert. denied, 480 U.S. 946 (1987). Additionally,

Continental told ALPA in September 1985 that it would reinstate strikers

with full seniority under an unconditional offer to return (R 163, Att. 1).

There was uncontroverted evidence that ALPA promised the pilots

they would be permitted to ratify any strike settlement with Continental (R

149, Exs. 47, 56, 67; R 163, Att. 5.1), as the Fifth Circuit noted in its opin-

ion. See 886 F.2d at 1448. The pilots and the Continental Master Executive

Council, however, never heard about the settlement until atter it had been

entered by the bankruptcy court.

6

has consistently blamed the bankruptcy judge for the settle-

ment terms (R 149, Exs. 15, 16).

These changes were not simply a “temporary transition” as

ALPA asserts (pet., p. 10 n.6). Under the secret strike settle-

ment, as well as under Continental's prior bidding system,

bidding is for future vacancies, not present positions. Thus, a

less senior nonstriker who obtains a captain position under the

settlement cannot be displaced in later bids by even the most

senior pilot. As Mr. Schnell’s notes reflect, these changes last

“forever” (R 163, Att. 7.5; R 149, Ex. 1.1).

Decision Of The Fifth Circuit Court Of Appeals.

Upon review of the circumstances surrounding the secret

strike settlement and the long-term effects it will have on the

seniority system by favoring nonstrikers over strikers, the

Fifth Circuit held that summary judgment on the pilots’ duty

of fair representation claim was wrong for at least two reasons.

First, the Fifth Circuit concluded that a fact-finder could find

that had ALPA simply agreed to an unconditional return to

work, the pilots would have been able to retain both their

seniority and their litigation rights against Continental.

O'Neill u. ALPA, 886 F.2d 1438, 1446 (5th Cir. 1989). To en-

ter into a secret strike settlement that was worse than an un-

conditional offer to return to work, the Fifth Circuit reasoned,

would be arbitrary and irrational and, thus, a breach of the

duty of fair representation. 886 F.2d at 1444.

Second, the Fifth Circuit found that a secret strike settle-

ment that expressly favors nonstrikers over strikers is

evidence that the union intentionally discriminated against

the striking pilots. 886 F.2d at 1447. Although ALPA con-

tended that the secret strike settlement was the only option

open to it, the Fifth Circuit properly found that the record

contained facts supporting the pilots on that question.

Some “bumping” can take place in a reduction in force, but that has

not occurred. Certain equipment freezes and other aspects of the bidding

system not important here also operate to lock pilots into their positions

and make the settlement provisions more than temporary (R 149, Ex. 103).

7

REASONS FOR DENYING THE WRIT

I. This Court Should Not Issue A Writ Of Certiorari

To Review The Interlocutory Decision Of The

Fifth Circuit Court Of Appeals Because The

Ultimate Outcome Of This Case Is Not Known.

A determinative fact in this Court’s decision whether to

grant ALPA’s petition is that no final judgment exists in this

case. The Fifth Circuit merely found that there were disputed

issues precluding entry of summary judgment against the pi-

lots and remanded to the district court for further proceed-

ings. The lack of finality is “of itself alone” grounds for denial

of ALPA’s petition. Hamilton-Brown Shoe Co. v. Wolf Bros. &

Co., 240 U.S. 251, 258 (1916). See Brotherhood of Locomotive

Firemen v. Bangor & Aroostook Railroad Co., 389 U.S. 327,

328 (1967) (denying certiorari because the Court of Appeals

remanded the case and thus it was not yet ripe for review).

In the few instances where this Court has taken review of

interlocutory orders, it has done so only on extraordinary

grounds, such as reversing an improvident and unusual ex-

ercise of jurisdiction, Myers v. Bethlehem Shipbuilding Corp.,

303 U.S. 41, 52 (1938), or compelling the court of appeals to

issue a writ of mandamus requiring the district court to hold a

jury trial. Beacon Theatres v. Westover, 359 U.S. 500 (1959).

No extraordinary circumstances are presented here. De-

pending on the facts to be developed at trial, ALPA can be

found guilty of discriminatory conduct toward the pilots. If the

trial court makes such a finding, there will be no need to de-

cide the issue ALPA now presents, which is whether ALPA’s

arbitrary conduct breached the duty of fair representation.

Thus, any review by this Court must await the outcome of the

proceedings on remand and ALPA’s current petition must be

denied.

8

ll. This Court’s Recent Decision In Chauffeurs,

Teamsters & Helpers, Local No. 391 v. Terry

Resolves Any Question Over The Applicable

Standard.

The first issue ALPA raises in its petition is whether the

standard articulated in Vaca v. Sipes, 386 U.S. 171 (1967)

(hereinafter Vaca), applies to union conduct in negotiating an

agreement. This Court's recent decision in Chauffeurs, Team-

sters & Helpers, Local 391 b. Terry, 58 US.L.W. 4345

(March 20, 1990) (hereinafter Terry), makes clear that the

Vaca standard applies squarely to unien conduct in negotia-

tions. Vaca is not limited, as ALPA asserts, to union conduct

in administering a collective bargaining agreement.

The duty fof fair representation] requires a union “to

serve the interests of all members [in a bargaining unit

without hostility or discrimination toward any, to ex-

ercise its discretion with complete good faith and hones-

ty, and to avoid arbitrary conduct.” A union must

discharge its duty both in bargaining with the employer

and in its enforcement of the resulting collective bar-

gaining agreement.

* ALPA also construes Ford Motor Co. v. Huffman, 345 U.S. 330 (1953).

too narrowly. There the Court affirmed a di-crict court decision finding that

the seniority system at issue was not “ ‘arbitrary. discriminatory or in any

respect unlawful.” 345 U.S. at 333 (quoting the district court). The Court

held that a union is empowered to make concessions “in the light of al! rele

vant considerations.” Id at 338. This is the same “arbitrary” standard ar

ticulated later in Vaca, 386 U.S. at 177. followed by the Fifth Circuit in

Tedford v. Peabody Coal Co, 533 F 2d 952, 957 (Sth Cir. 1976), and im the

decision below

9

58 U.S.L.W. at 4346, quoting Vaca, 386 U.S. at 177.

Terry vitiates any possible dispute as to whether the Fifth

Circuit applied the proper legal standard and moots any per-

ceived need to review this case to reconcile decisions in other

circuits.

III. There Is No Split Among The Circuits On The

Legal Standard Applicable To The Union's

Conduct In This Case.

ALPA overstates the conflict among the circuits that ex-

isted prior to Terry. Cases in both the Seventh and Ninth

Circuits apply Vaca in the negotiating context. See Bernard v.

ALPA, 873 F.2d 213 (9th Cir. 1989); Hendricks v. ALPA,

696 F.2d 673, 677 (9th Cir. 1983) (recognizing that arbitrary

union conduct in negotiations breaches the duty of fair repre-

sentation); Alvey v. General Electric Co., 622 F.2d 1279, 1289

(7th Cir. 1980) (relying upon the Fifth Circuit's decision in

'© Terry follows other recent decisions of this Court that adhere to Vaca

as the proper duty of fair representation standard. See Breininger Sheet

Metal Workers Int'l, 110 S8. Ct. 424, 429 (1989) (“We have long recognized

that a labor organization has a statutory duty of fair representation ... ‘to

serve the interests of all members without hostility or discrimination toward

any, to exercise its discretion with complete good faith and honesty, and to

avoid arbitrary conduct, quoting Vaca, 386 U.S. at 177; Communications

Workers of America v. Beck, 108 S. Ct. 2641, 2645 (1988); United Mine

Workers of America Health & Retirement Funds i Robinson, 455 U.S. 562,

575-76 n.20 (1982) (“in the collective bargaining process, the union must

fairly represent the interests of all employees in the unit,” citing Vaca, 386

U.S. at 177). In Breininger the Court rejected the union's argument that the

duty of fair representation is analoguus to 29 U.S.C. § 158(b) (proscribing

intentional union discrimination), which is much like the standard ALPA

argues for here. The Court held squarely that the duty of fair representation

goes further to prevent arbitrary union conduct against individuals

stripped of traditional forms of redress by the provisions of federal labor

las 110 S. Ct. at 436, quoting Vaca, 386 U.S. at 182.

In Bernard the Ninth Circuit affirmed summary judgment against

ALPA for violating its duty of fair representation by discriminating against

former Jet America pilots in negotiations over a seniority integration agree

ment with Alaska Air. 873 F.2d at 218. The same result can be reached on

this record.

10

Tedford v. Peabody Coal Co., 533 F.2d at 957); Barton

Brands, Ltd. v. NLRB, 529 F.2d 793, 799 (7th Cir. 1976) Car-

bitrary conduct without evidence of bad faith has been held by

this Circuit to constitute a breach of the duty”). .

In the Eleventh Circuit, Parker v. Connors Steel Co., 855

F.2d 1510 (11th Cir. 1988), cert. denied, 109 S. Ct. 2066

(1989), the case ALPA cites as in conflict with the Fifth Cir-

cuit, holds squarely that arbitrary conduct in negotiations vio-

lates the duty of fair representation:

A violation of the Union's duty of fair representation

in the context of negotiations with the Company is estab-

lished if the Union's conduct in negotiations is arbitrary,

irrational, or undertaken in bad faith.

Id. at 1520. Parker also recognizes, as did the court below,

that union misconduct in the ratification of an agreement vio-

lates the duty of fair representation. /d. at 1521.

IV. There Is No Conflict Between The Ruling Below

And This Court’s Decision In Trans World

Airlines, Inc. v. Independent Federation of Flight

Attendants.

ALPA erroneously asserts that the decision below is con-

trary to this Court's decision in Trans World Airlines, Inc. v.

Independent Federation of Flight Attendants, 109 S. Ct. 1225

(1989) (hereinafter TWA). First, the court below cited the

'2 In Barton Brands, the Seventh Circuit held that the union would be

found in violation of its duty of fair representation for abridging the long

established senwrity rights of a minority of employees unless, on remand. it

showed “some objective justification for its conduct.” 529 F.2d at 800. This

holding accords squarely with the decision below and with the Fifth Cir

cuit's prior decision in Tedford, 533 F.2d at 957. Phomas v. United Parce'

Service, Inc, 890 F.2d 909 (7th Cir. 1989), the Seventh Circuit case cited

by ALFA in conflict with the decision helow, was a grievance case and did

not overrule Barton Brands. Moreover, in Thomas, the court recognized a

difference between it and other circuits but reconciled the difference when :t

held that the “arbitrary, discriminatory, or in bad faith” standard of Vaca

applies generally, although a union may be given greater deference in mat

ters of judgment, such as negotiations. 890 F.2d at 922

11

Eighth Circuit's decision in TWA for the point that pilot posi-

tions that were not yet occupied at the end of the strike were

vacancies to which strikers were entitled to return. Indepen

dent Federation of Flight Attendants v. Trans World Airlines,

Inc., 819 F.2d 839 (8th Cir. 1987) (trainees who had not yet

served in positions were not permanent replacements and re-

turning strikers were entitled to those positions). Accord

ALPA v. United Air Lines, Inc, 614 F. Supp. 1020 (N.D. III.

1985), aff'd in relevant part, 802 F.2d 886 7th Cir. 1986),

cert. denied, 480 U.S. 946 (1987). This Court did not grant

certiorari on this “vacancy” point. Trans World Airlines, Inc.

v. Independent Federation of Flight Attendants, 108 S. Ct.

1219 (1988) (certiorari granted only to consider displacement

of crossovers).

Second, the record was uncontroverted that all of the 85-5

bid positions were still vacant when the strike ended on Oc-

tober 31, 1985; there was no evidence that the nonstrikers had

even begun training for those positions by that date. The

Fifth Circuit's determination that unfilled positions are vacan-

cies available to returning strikers does not conflict with this

Court’s TWA decision. 199 S. Ct. at 1232 (“positions occupied

by newly hired replacements .. are simply not available posi-

tions’ to be filled” by returning strikers) (emphasis added).

V. The Fifth Circuit Correctly Concluded That

ALPA’s Conduct Could Be Found Violative Of Its

Duty Of Fair Representation.

The facts in this record and the controlling case law compel

the conclusion that the Fifth Circuit correctly held that

ALPA’s conduct in secretly settling this strike on terms that

could be found violative of the union's duty of fair representa-

tion. It is beyond dispute that superseniority preferences of

the type embraced in the secret strike settlement are unlawful.

NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963); Great

Lakes Carbon Corp. v. NLRB, 360 F.2d 19, 22 (4th Cir. 1966)

(supersenicrity plan favoring employees who worked during a

strike is unlawful on its face).

12

A union breaches its duty of fair representation when its

conduct is antithetical to the statute that authorizes the un-

ion’s existence and charges it with furthering the statute's

goals. Courts have had no difficulty in finding that unions

have breached their duty of fair representation for conduct

just like ALPA's conduct here.

Furthermore, the Fifth Circuit correctly discerned that the

union in this case entered into a strike settlement agreement

that is worse for the pilots who were on strike than an uncon-

ditional offer to return to work, with no explanation beyond

argument of counsel. This is enough for the fact-finder to find

that ALPA acted arbitrarily and irrationally. See Tedford v.

Peabody Coal Co., 533 F.2d 952 (5th Cir. 1976); Barton

Brands, Ltd. v. NLRB, 529 F.2d 793 (7th Cir. 1976). See also

Ford Motor Co. v. Huffman, 345 U.S. at 338 (union must act

“in the light of all relevant considerations”).

CONCLUSION

For the foregoing reasons, the Petition for Writ of Certiorari

should be denied.

'S See United Mine Workers of America Health & Retirement Funds

Robinson, 455 U.S. 562, 575 (1982) (“The terms of any collective-bargaining

must also be substantively consistent with the National Labor Relations

Act. , Scofield v. NLRB, 394 U.S. 423, 430 (1969) (union may not choose a

position which interferes with a “policy Congress has imbedded in the labor

laws”).

„ Bernard v ALPA, 873 F.2d 213 (9th Cir. 1989) (granting summary

judgment against ALPA for discrimination against former Jet America pi

lots in a senwrity integration agreement); Bouman. Tennessee Valley Au

thority, 744 F.2d 1207 (6th Cir. 1984), cert. dened, 470 U.S. 1084 (1985)

(union's agreement to seniority provisions which discriminated on basis of

concerted activity breached its duty of fair representation); Jones « Tran»

World Airlines, Inc, 495 F 2d 790, 797 (2d Cir. 1974) ("Discrimination in

seniority based on nothing else but Union membership is arbitrary and in.

vidious and violates the union's duty to represent fairly all members of the

bargaining unit Chrapliwy v Uniroyal, Inc, 458 F Supp. 252, 282 (ND

Ind. 1977) (granting summary judgment against union on female employees

fair representation claim where union negotiated a contract discriminating

against them)

13

RESPECTFULLY SUBMITTED.

LEWIS AND ROCA

April 23,1990 By

John P. Frank

Marty Harper

Allen R. Clarke

Janet Napolitano

40 North Central Avenue

Phoenix, Arizona 85004-4429

(602) 262-5311

Counsel for Respondents

Joseph E. O'Neill, et al.