Petition for Writ of Certiorari — Klemens v. Air Line Pilots Ass'n, International
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IN THE | ALEXANDER L. STEVAS
Supreme Court cf the United States—
OCTOBER TERM, 1983
THOMAS D. KLEMENS, THOMAS G. GIEFER,
Roy A.C. HILL, and ROBERT G. MAIERS,
Petitioners,
-\-
AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
PETITION
DAVID T. BRYANT
National Right to Work Legal
Defense Foundation, Inc.
8001 Braddock Road, Suite 600
Springfield, Virginia 22160 °
(703) 321-8510
Counsel of Record for the
Petitioners
Of Counsel:
Rex H. Reed
National Right to Work Legal
Defense Foundation, Inc.
JERRY B. EDMONDS
Williams, Lanza, Kastner & Gibbs
1440 Washington Building
Seattle, Washington 981i1
(206) 628-6600
OO eng iemgeeinnenttemrenyretion ee oS
I.
III.
ojo
QUESTIONS PRESENTED FOR REVIEW
WHETHER AN “ASSESSMENT” IMPOSED IN VIOLA-
TION OF A UNION’S CONSTITUTION Is AN “ASSESS-
MENT” WITHIN THE MEANING OF THE PROVISO To
SECTION 2, ELEVENTH (a), OF THE RAILWAY LABOR
Act?
WHETHER AN “ASSESSMENT” IMPOSED IN VIOLA-
TION OF A UNION’S CONSTITUTION IS A “PENALTY”
INCLUDED IN THE PROVISO TO SECTION 2, ELEV-
ENTH (a), OF THE RAILWAY LABOR ACT?
WHEN A CASE IS PROPERLY BEFORE A UNITED
STATES DISTRICT COURT UNDER 28 U.S.C. § 1337,
Does THE DOCTRINE OF PENDENT JURISDICTION
EMPOWER THE COURT TO CONSIDER WHETHER AN
“ASSESSMENT” WAS AUTHORIZED By A UNION’S
CONSTITUTION?
-ii-
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ............. "
TABLE OF CONTENTS .........cccccccecceccecceceeceee J
TABLE OF AUTHORITIES ..........ccccccccccccesceee ™
REPORT OF OPINIONS BELOW.......... Sa I
STATEMENT OF JURISDICTION ..........c0cccccee. 2
STATUTES INVOLVED. .........-..ccccccccccncceceuce. 2
STATEMENT OF THE CASE.............cc.cecceccsce. 3
REASONS FOR GRANTING THE WRIT ............. 6
I. THIS CASE INVOLVES IMPORTANT
QUESTIONS OF FEDERAL LAW WHICH
HAVE NOT BEEN BUT SHOULD BE
SETTLED BY THIS COURT.........-ccccceeceeee 6
A. DENIAL OF INDIVIDUAL RIGHTS
GRANTED BY STATUTE RAISES
IMPORTANT QUESTIONS WORTHY OF
DECISION BY THIS COURT.........ccccccee. 6
B. A LEVY NOT AUTHORIZED BY THE
UNION’S CONSTITUTION IS A
WE Eten CE WEMEomR BEE AT ow... ccc cacees 8
~ill-
Page
fl. THE DECISION BELOW JIS IN
CONFLICT WITH APPLICABLE
DECISIONS OF THIS COURT ON
PENDENT JURISDICTION....‘........ peers fe 10
YS 6 wn cecaddcanadcwingesnbdakbeonk seakeees 14
APPENDIX
OPINION OF THE COURT OF APPEALS ...... la
ORDER OF THE DISTRICT COURT,
FE Sy PE na ee vi aadeacnbkecasdncices 2la
ORDER OF THE DISTRICT COURT,
ee ly GD Ka. cskcecaniasennedinssceseaks 3la
ORDER OF THE DISTRICT COURT,
PUAPIUERE ily BOD eis cctvsseccancces hanna ueene 39a
ORDER OF THE COURT OF APPEALS
DENYING PETITION FOR REHEARING...... 47a
-iV-
TABLE OF AUTHORITIES
Cases Page
Brotherhood of Railway Clerks v. Allen, 373
es RE Sn cactescccsndennentbuecenuakiunvian 6,7
Ellis v. Railway Clerk, ah dda
es Seek ER 6k c54 ie ved eaacanax haan 6,7
Felter v. Southern Pacific Co.,
Es PE an cha Kobi dkavannndeecceucbeeavees 6
International Association of Machinists v.
, ey | Ree ere 6, 7,9
International Brotherhood of Boilermakers
v. Hardeman, 401 U.S. 233 (1971) ..... 02.00 cceeees 8
Kavit v. A.L. Stamm & Co., 491 F.2d
SE Fer Ge AS Ss i dbctscnwnkscacedsacddebacaee 13
F
Klaus v. Hi-Shear Corporation,
Pan ae ee EE Ges PTE soc caciccdcnvchabanadeane 13
Mobil Oil Corporation v. Kelley,
ee fo Le rrr er 11, 13
Ohio Hoist Manufacturing Co. v.
LiRocchi, 490 F.2d 105 (6th Cir. 1974) ............. 13
Cases Page
Osborn v. Bank of the United States,
Se Ween CD POUND TO CD hc kid darccnscccenna ae
Railway Empioyes’ Department v. Hanson,
Pe Dae Be CEE 04 A vb dcenccddannkeeaneseceas . 6,7
Rosado v. Wyman, 397 U.S. 397 (1970) ............45. 9,11
Rumbaugh v. Winifrede R. Co., 331
F.2d 530 (4th Cir.), cert. denied,
Fee es Pe Skids catsiancidscecnelame 12
State of Arizona v. Cook Paint & Varnish
Co., 541 F.2d 226 (9th Cir. 1976), cert.
GN, Ga Ds SOP OTT Kvnkn cnceccesccdasciaenn 13
Tranksok Pipeline Co. v. Darks,
See Ete CESS CRE Ga, BREED cc ennpsccscccdccenscs 13
United Association of Journeymen v. Local
FOG as I Aah hi chad ineaacaccducavces 8
United Mine Workers of America v. Gibbs,
Dee Wah FER COMO 6 aKccbacducvbetidiasmuaenes 10, 13
Vanderboom v. Sexton, 422 F.2d
Ree Cee SD, GWU Ka nckacccvacddueabedususeesacee 12
Statutes
UBL. 6 oi censcscsc Gece 2
Statutes
SRR eee AR peg al ieee Ear ae
Labor Management Reporting and Disclosure Act,
Ee Ss odh cocdibawanekachaedscecdcees
Railway Labor Act, Section 2, Eleventh, 45
isn © Soily PEED sncucecsnsctusscecocscces
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No.
IN THE
Supreme Court of the Hnited States
OCTOBER TERM, 1983
THOMAS D. KLEMENS, THOMAS G. GIEFER,
Roy A.C. HILL, and ROBERT G. MAIERS,
Petitioners,
-ve
AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
PETITION
The Petitioners pray that a Writ of Certiorari be issued
to review the judgment and opinion of the United States
Court of Appeals for the Ninth Circuit entered in this
proceeding on Apmil 3, 1984.
REPORT OF OPINIONS BELOW
The opinion of the Court of Appeals is reported at 736
F.2d 491 (9th Cir. 1984). The order of the District Court
is reported at 113 L.R.R.M. 2825 (W.D. Wash. 1981).
Prior orders of the District Court in this proceeding are
reported at 484 F. Supp. 186 (W.D. Wash. 1980) and 500
F. Supp. 735 (W.D. Wash. 1980).
ae
STATEMENT OF JURISDICTION
The opinion of the Court of Appeals is dated April 3,
1984. Petitioners’ petition for rehearing was denied on
June 26, 1984 and their petition for rehearing en banc
was rejected on the same date. This Petition for a Wnt
of Certiorari is filed within 90 days of the latter date.
This Court’s jurisdiction is invoked under 28 U.S.C.
§ 1254(1).
STATUTES INVOLVED
Section 2, Eleventh, of the Railway Labor Act, 45
U.S.C. § 152, Eleventh, provides in pertinent part:
Notwithstanding any other provisions of this
chapter, or of any other statute or law of the United
States, or Territory thereof, or of any Stats, any
carrier or carriers as defined in this chapter and a
labor organization or labor organizations duly
designated and authorized to represent employees in
accordance with the requirements of this chapter
shall be permitted —
(a) to make agreements, requiring, as a condition
of continued employment, that within sixty days fol-
lowing the beginning of such employment, or the
effective date of such agreements, whichever is the
later, all employees shall become members of the
labor organization representing their craft or class:
Provided, That no such agreement shall require
such condition of employment with respect to
employees to whom membership is not available
upon the same terms and conditions as are generally
applicable to any other member or with respect to
employees to whom membership was denied or ter-
minated for any reason other than the failure of the
a
employee to tender the periodic dues, initiation fees,
and assessments (not including fines and penalties)
uniformly required as a condition of acquiring or
retaining membership.
STATEMENT OF THE CASE
The District Court summarized the faetual background
of this controversy in its order of February 12, 1980 as
follows:
In 1972, the plaintiff, Thomas D. Klemens, was
employed as a pilot by Northwest Airlines, Inc.
(Northwest). He was a member of the Air Line
Pilots Association, International (ALPA), the statu-
tory exclusive collective bargaining agent for
Northwest pilots. Since October 3, 1972, an
“agency shop” agreement was in effect between
Northwest and ALPA.
n 1972 after the termination of a pilots’ strike, a
number of Northwest pilots with low seniority were
not immediately recalled to active flying status. On
October 6, 1972, the Northwest Master Executive
Council (MEC) passed resolution 1-72, which auth-
orized an assessment upon working Northwest pilots
to pay a monthly benefit to the Northwest pilots
who were not recalled.
Mr. Klemens refused to pay the 1-72 assessment
because it was levied only against Northwest pilots
and not against the ALPA membership as a whole.
However, Mr. Klemens continued to pay his reguiar
membership dues to ALPA until October, 1975,
when he was expelled from the union for failure to
pay the 1-72 assessment.
After his expulsion from ALPA, Mr. Klemens
+
refused to pay the “service charge” (equivalent to
dues) which is generally required from non-union
employees under the “agency shop”. He based his
refusal upon Section 2, Eleventh, of the P.ailway
Labor Act [45 U.S.C.A. § 152, Eleventh].
By letter dated December 8, 1976, ALPA requested
Northwest to discharge Mr. Klemens for delin-
quency in “service charge” obligations under the
Union Security Agreement. When Northwest
threatened to discharge Mr. Klemens, the latter paid
his alleged deficiency to ALPA, whereupon the
union withdrew its request for his discharge.
On May 8, 1979, Mr. Klemens filed a Complaint
seeking a dsciaratory judgment thai he is not obli-
gated to pey the ALPA “service charge” which he is
currently rendering under protest. He is joined by
pilots Hill, Maiers, and Giefer, who are similarly if
not identically situated. .. . Their common claim is
that their union membership was “terminated for [2]
reason other than the failure . . . to tender the peri-
odic dues, initiation fees, and assessments . . . uni-
formly required as a condition of acquiring or
retaining membership.” 45 U.S.C.A. § 152, Elev-
enth (a). Plaintiffs also argue that ALPA has
breached its duty of fair representation. (484 F.
Supp. at 187.)
ALPA moved to dismiss the complaint. This motion
was denied as to the claim under the Railway Labor Act
and granted as to the claim that ALPA had breached its
duty of fair representation. 484 F. Supp. 186. Specifi-
cally the court held that “Plaintiffs have stated a cause of
action under Section 2, Eleventh, of the Railway Labor
Act, 45 U.S.C. § 152, Eleventh.” Jd. at 188. ALPA
answered the complaint and raised Section 101(a)(4) of
the Labor Management Reporting and Disclosure Act as
3
a defense to the action. ALPA also initiated discovery
to support this defense. Petitioners’ motion to strike this
defense and for a protective order was granted. 500 F.
Supp. 735. The case proceeded to tnal on stipulated
facts and cross motions for summary judgment. The
District Court ruled that:
It is implicit in Section 2, Eleventh, that unions
may only require payment of assessments which are
legally authorized. On these facts, such an assess-
ment must have complied with both the ALPA
Constitution and any applicable federal labor sta-
tutes. When a pilot is expelled for failing to pay a
union assessment, “service charges” may subsequently
be required only if the assessment was legal in the
first place.
The District Court determined that the assessment was
not authorized by the ALPA Constitution and, therefore,
that the Petitioners’ expulsion from membership relieved
them of the obligation to pay service fees to ALPA. The
court entered judgment against ALPA in the amount of
service fees paid since May 8, 1976, the period not
barred by Washington’s three year statute of limitations.
The court also enioined ALPA from requiring Petition-
ers to pay further agency shop fees to ALPA unless
union membership is again tendered to them without
further claims for the 1-72 assessment. 113 L.R.R.M.
2825.
ALPA appealed and the Ninth Circuit reversed, hold-
ing that the District Court did not have subject matter
jurisdiction to consider whether the assessment was
imposed in violation of ALPA’s Constitution. 115
L.R.R.M. 3537. The Petitioners filed a timely petition
for rehearing and suggestion for rehearing en banc. On
-6-
June 26, 1984, the petition for rehearing was denied and
the suggestion for rehearing en banc was rejected.
Appendix, page 47a.
REASONS FOR GRANTING THE WRIT
I. THIS CASE INVOLVES IMPORTANT QUESTIONS
OF FEDERAL LAW WHICH HAVE NOT BEEN BUT
SHOULD BE SETTLED BY THIS COURT.
A. Denial of Individual Rights Granted By Statute
Raises Important Questions Worthy Of Decision
By This Court.
This Court has considered controversies arising under
Section 2, Eleventh, of the RLA on severai occasions.
Ellis v. Railway Clerks, U.S. ——, 104 S. Ct. 1883
(1984); Brotherhood of Railway Clerks v. Allen, 373
U.S. 113 (1963); International Association of Machinists
v. Street, 367 U.S. 740 (1961); Felter v. Southern Pacific
Co., 359 U.S. 326 (1959); Railway Employes’ Depart-
ment v. Hanson, 351 U.S. 225 (1956). Collectively, these
Cases recognize that the scope of the provisions of this
section raises substantive questions which are worthy of
consideration by this Court. E.g., Felter v. Southern
Pacific Co., supra, at 328.
Congress did not give unions unrestricted power to
compel financial support from those persons whom they
represent. Ellis v. Railway Clerks, supra, at 1893;
Brotherhood of Railway Clerks v. Allen, supra, at 121,
122; International Association of *4achinists v. Street,
supra, at 768. Indeed the specific terms of the statute
deny a union the right to such support from one whose
te
“membership was . . . terminated for any reason other
than the failure of the employee to tender the periodic
dues, initiation fees, and assessments (not including fines
and penalties) uniformly required” for membership.
The District Court held that expulsion from member-
ship for refusing to pay a levy not authorized by the
ALPA’s Constitution was a “reason other than” within
the meaning of the statute. The Court of Appeals re-
versed, holding that the District Court had no jurisdic-
tion to decide the question.
The correct breadth of the statute has never been
decided by this Court. It is an important question,
indeed an essential one, to the proper application of the
statute. This Court has held that the term “dues” does
not include exactions spent for political and ideological
purposes not germane to collective bargaining, Street
and Allen, or for the union’s general litigation and
organizing efforts, Ellis. And the Court has indicated
that assessments for such purposes would not be autho-
rized. Railway Employes’ Department v. Hanson, supra,
at 235. Given those interpretations, it strains credulity to
believe that the Ninth Circuit was correct when it deter-
mined that a federal court lacks jurisdiction to investi-
gate whether purported “assessments” are unauthorized
by the ALPA’s Constitution.
In enacting Section 2, Eleventh, Congress determined
that financial support should not be required from those
whose membership in a union was terminated for the
wrong reason. It is inconceivable that a federal district
court is without power to determine that particular
union conduct is or is not a “reason other than” as that
:s
term is used in the statute, simply because that conduct
involves the interpretation and application of the union’s
constitution.
Union constitutions, after all, are contracts over which
federal courts generally have jurisdiction. See United
Association of Journeymen v. Local 334, 452 U.S. 615
(1981). And the provisions of a union’s constitution are
subject to examination and determination by a federal
court. International Brotherhood of Boilermakers vy.
Hardeman, 401 U.S. 233, 245 (1971).
Under the RLA, the obligation of individual employees
to provide financial support to a union is a federally
created duty. But a corollary of this duty is the federal
right not to provide that support under circumstances
involving wrongful termination of membership by the
union. Inescapably, whether such circumstances are
present is also a federal question justiciable under 28
U.S.C. § 1337, even though the interpretation and appli-
cation of the union’s constitution is involved.
B. A Levy Not Authorized By The Union’s Constitu-
tion Is A “Penalty” Under The Act.
The proviso to Section 2, Eleventh, states that a
member expelled for nonpayment of “fines and penal-
ties” is relieved of the obligation to provide financial
support to the union. Neither the RLA nor its legislative
history defines “penalties”. The context in which the
word is used makes it clear, however, that it refers to
money claimed to be due by the union, and that it is
something different from a “fine”. Obviously, the term
has some distinct and useful meaning; and a court’s duty
is to discover and give effect to the intent of Congress in
-9-
inserting that term in Section 2, Eleventh. For “courts
should construe all legislative enactments to give them
some meaning. .. .” Rosado v. Wyman, 397 U.S. 397,
415 (1970). If it is not a “penalty” to lose union mem-
bership for nonpayment of a purported financial obliga-
tion that was not even authorized by the union’s consti-
tution in the first instance, it is difficult to imagine any
union conduct that would constitute a “penalty” within
the meaning of the proviso.
To construe the statute in this fashion supports and
furthers its basic purpose. In enacting Section 2, Elev-
enth, Congress sought to insure to unions the basic
financial support they required to perform their statutory
duties and, at the same time, to protect individual
employees who were denied union membership for invid-
ious reasons. If a demand for money is not authorized
by the documents that govern the union-member rela-
tionship, it is plainly contrary to the purpose of the RLA
to hold, as the Ninth Circuit in effect did, that federal
law does not protect the individual employee from being
discharged for refusing to pay such an illegal demand for
financial support.
One of the principal purposes of the proviso to Sec-
tion 2, Eleventh, is to protect individual rights. Street,
supra, at 765-69. It enhances and furthers that purpose
to interpret “penalties” as including financial demands
prohibited by a union’s constitution. To say that such
illegal demands are beyond the reach of the federal
courts guts the RLA of the protection Congress specifi-
cally provided for the individual employee. It was to
stop just such overreaching by unions that Congress
-10-
included the phrase “fines and penalties” in Section 2,
Eleventh.
Thus the extent of the protection provided by the pro-
viso, and the jurisdiction of the federal courts thereover,
is an important question of federal law which should be
decided by this Court.
II. THE DECISION BELOW IS IN CONFLICT WITH
APPLICABLE DECISIONS OF THIS COURT ON
PENDENT JURISDICTION
Even if the Ninth Circuit were correct in holding that
the validity of the assessment under ALPA’s Constitu-
tion was not a federal question under the RLA, it should
have held that the District Court properly considered
and decided the issue under the doctrine of pendent
jurisdiction. Its refusal to do so flies in the face of
numerous decisions of this Court establishing and apply-
ing that doctrine. See, e.g. United Mine Workers of
America v. Gibbs, 383 U.S. 715 (1966); Osborn v. Bank
of the United States, 22 U.S. (9 Wheat.) 738 (1824).
Pendent jurisdiction gives federal courts power to hear
and determine state law issues. As this Cour: said in
Gibbs, supra, at 725:
Pendent jurisdiction, in the sense of judicial power,
exists whenever there is a claim “arising under [the]
Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their
Authority * * *,” U.S. Const., Art. III, § 2, and the
relationship between that claim and the-state claim
permits the conclusion that the entire aetion before
the court comprises but one constitutional “case.”
The federal claim must have substance sufficient to
ys
confer subject matter jurisdiction on the court.
Levering & Garrigues Co. v. Morrin, 289 U.S. 103,
53 S. Ct. 549, 77 L.Ed. 1062. The state and federal
claims must derive from a common nucleus of oper-
ative fact. But if, considered without regard to their
federai or state character, a plaintiff's claims are
such that he would ordinarily be expected to try
them all in one judicial proceeding, then, assuming
substantiality of the federal issues, there is power in
federal courts to hear the whole. (Footnotes
omitted.)
The justification for the doctrine lies in considerations of
judicial economy, convenience and fairness to litigants.
Id., at 721. It is a common sense policy designed to con-
serve judicial energy and avoid multiplicity of litigation.
Rosado v. Wyman, supra, at 405.
The exercise of jurisdiction is particularly appropriate
here where the state-law claim, if it is such, is but one
small part of the Petitioners’ essentially federal case.
Part I.B. of the Ninth Circuit’s opinion makes it clear
that both the state and federal claims have a common
factual background. As the Fifth Circuit said in Mobil
Oil Corporation v. Kelley, 493 F.2d 784, 788 (Sth Cir.
1974):
Decision has created an extension to the jurisdic-
tion of federal courts to meet the needs of equity to
litigants and judicial economy. Jurisdiction may be
based on the assertion of a federal claim but the
claimant may be unable to prove his allegations; the
evidence may however prove a basis for relief under
state law. In that event, a remedy may be granted
by a federal court though a complaint based solely
on the state claim would have been beyond the
-12-
court’s competency. Siler [v. Louisville & Nashville
R. Co., 213 U.S. 175 (1909)], supra; Wright, Federal
Courts, § 19; See also Moor v. County of Alameda,
1973, 411 U.S. 693, 93 S. Ct. 1785, 36 L.Ed.2d 596.
Similarly, where the complaint itself alleges a claim
with respect to which federal courts are given juris-
diction and, in addition, a claim based on state law
arising out of a common nucleus of operative fact,
the federal court may adjudicate both claims in a
single proceeding without requiring the Parties to
present the same facts to two different courts. (Cit-
ations omitted).
Another reason for application of the doctrine here is
that the relief sought by the Petitioners is entirely federal
in nature. They seek a declaration that the RLA does
not require them to pay agency-shop fees to ALPA
under the circumstances presented. If the Petitioners are
entitled to such federal-law relief, it is particularly
appropriate that that relief be granted to them by a fed-
eral court.
Exercise of federal jurisdiction is also appropriate here
because all of the Petitioners’ claims arise from a com-
mon nucleus of operative fact and are such that the Peti-
tioners would ordinarily be expected to try them all in
one judicial proceeding. See Vanderboom v. Sexton, 422
F.2d 1233 (8th Cir. 1970).
The ultimate disposition of the Petitioners’ federal
claim is immaterial in determining whether it is suffi-
ciently substantial for the purposes of jurisdiction over
the state claim. See Rumbaugh vy. Winifrede R. Co., 331
F.2d 530 (4th Cir.), cert. denied, 379 U.S. 929 (1964).
And continuation of federal jurisdiction over the state
Laren Rete
-13-
claim is proper even though the federal claims might be
decided adversely to the Petitioners. See Mobil Oil Cor-
poration v. Kelley, supra; Kavit v. A.L. Stamm & Co.,
491 F.2d 1176 (2d Cir. 1974); Ohio Hoist Manufacturing
Co. v. LiRocchi, 490 F.2d 105 (6th Cir. 1974).
Moreover, continuation of federal jurisdiction is espe-
cially appropriate here, because the proceedings have
already been lengthy and decision on the state law issue
has already been made by the District Court. See State
of Arizona v. Cook Paint & Varnish Co., 541 F.2d 226
(9th Cir. 1976), cert. denied, 430 U.S. 915 (1977); and see
Transok Pipeline Co. v. Darks, 565 F.2d 1150 (10th Cir.
1977) (after 4 years of litigation federal jurisdiction con-
tinues even though federal claims are settled shortly
before trial).
The state and federal claims in this case derive from a
common nucleus of operative fact. The federal issues
presented are substantial and not frivolous. Therefore
the District Court had jurisdiction to adjudicate all
claims even though the basis for its ultimate decision was
state law. United Mine Workers v. Gibbs, supra, at 725;
Klaus v. Hi-Shear Corporation, 528 F.2d 225, 231 (9th
Cir. 1975).
By failing to follow the applicable precedents of this
Court, the Ninth Circuit has denied the Petitioners a
decision in a federal forum which they are entitled to
receive, and had already received from the District Court.
Only this Court can require the Ninth Circuit to re-
instate the decision that the precedents of this Court
indicate rightfully is due the Petitioners.
-14-
CONCLUSION
For the reasons stated, the Petition for Writ of Certio-
rari should be granted.
Respectfully submitted,
DAVID T. BRYANT
National Right to Work Legal
Defense Foundation, Inc.
8001 Braddock Road, Suite 600
Springfield, Virginia 22160
(703) 321-8510
Counsel Of Record For
The Petitioners
Of Counsel:
REX H. REED
National Right to Work Legal
Defense Foundation, Inc.
JERRY B. EDMONDS
Williams, Lanza, Kastner & Gibbs
1440 Washington Building
Seattle, Washington 98111
(206) 628-6600
APPENDIX
-la-
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Thomas D. Klemens, er ai.,
Plaintiffs- A ppellees-
Cross-Appellants
Nos. 81-3657
v. 81-3710
Air Line Pilots Association, D.C. No. CV 79-587
International,
OPINION
Defendant-Appellant-
Cross- Appellee.
(Filed April 3, 1984)
Appeal from the United States District Court
for the Western District of Washington
Hon. Barbara J. Rothstein, District Judge, Presiding
Argued and Submitted: December 9, 1982
BEFORE: CHOY and FLETCHER, Circuit Judges,
and MacBRIDE,” District Judge.
FLETCHER, Circuit Judge:
Defendant Air Line Pilots Association (ALPA) appeals
from a judgment in a suit brought by former ALPA
members for a declaration freeing them from the obliga-
tion to pay service charges under an agency shop agree-
* The Honorable Thomas J. MacBride, Senior District Judge for the
Eastern District of California, sitting by designation.
-2a-
ment and reimbursement of service charges paid.
On cross-motions for summary judgment, the district
court granted plaintiffs’ motion. The court found that
ALPA’s insistence that plaintiffs pay service charges was
illegal under section 2, Eleventh of the Railway Labor
Act, 45 U.S.C. § 152, Eleventh (1976).
9 I
BACKGROUND
A. The Railway Labor Act.
The purposes of the Railway Labor Act (RLA), origi-
nally enacted in 1926 and substantially revised in 1934,
see Felter v. Southern Pacific Co., 359 U.S. 326, 326 n.1
(1959), are, inter alia, to secure uninterrupted operations
by commercial rail carriers, to protect the associational
rights of the employees of such carriers, and to promote
speedy settlement of labor disputes between the employees
and the carriers. 45 U.S.C. § 1Sla (1976). Before 1951,
the RLA prohibited carriers and labor organizations
from making either union-shop or agency-shop’ agree-
ments. Felter, 359 U.S. at 330-33. In 1951, however, the
RLA was amended to allow carriers and carrier employee
unions to bargain for union or agency-shop clauses.
This amendment enabled unions to be relieved of the
burden of “free riders” (nonmembers who receive the
benefits of the union’s representation but do not support
the union). See Act of Jan. 10, 1951, ch. 1220. 64 Stat.
' A union-shop clause requires employees to join the union; an agency
shop clause requires nonmembers to pay a union service charge, equiv-
alent to dues.
-3a-
1238 (1951) (currently codified at 45 U.S.C. § 152, Elev-
enth (b) (1976)); Felter, 359 U.S. at 330-31. Subse-
quently, the Railway Labor Act, including the union
security provision of section 2, Eleventh, was made
applicable to air carriers. See 45 U.S.C. § 181 (1976).
Section 2, Eleventh (a) of the RLA, 45 U.S.C. § 152,
Eleventh (a), provides that carriers and their unions may:
make agreements, requiring, as a condition of con-
tinued employment, that . . . all employees shall
become members of the labor organization repre-
senting their craft or class: Provided, That no such
agreement shall require such condition of employ-
ment... with respect to employees to whom mem-
bership was denied or terminated for any reason
other than the failure of the employee to tender the
periodic dues, initiation fees, and assessments (not
including fines and penalties) uniformly required as
a condition of acquiring or retaining membership.
Although the statute explicitly authorizes only union-
shop agreements, it also permits agency-shop agreements.
See NLRB vy. General Motors Corp., 373 U.S. 734, 741
(1963). Collective bargair*ng agreements may include an
agency-shop clause requiring an expelled union member
to pay service charges as a condition of continued
employment if the former member is expelled for not
paying “the periodic dues, initiation fees, and assess-
ments .. . uniformly required” for membership. The
charges cannot be demanded of an employee denied
union membership or terminated from membership for
any other reason. See Local 1104, Communications
Workers of America v. NLRB, 520 F.2d 411, 416 (2d
Cir. 1975), cert. denied, 423 U.S. 1051 (1976).
B. Facts.
In 1972, plaintiffs Klemens, Hill, Geifer and Maiers
were employed as pilots by Northwest Airlines, Inc.
They were also members of ALPA. At that time, the
collective bargaining agreement between Northwest and
ALPA included an agency-shop clause proper under sec-
tion 2, Eleventh of the RLA. Following a 1972 strike at
Northwest, ALPA imposed on those pilots who had
returned to work a special one-time assessment (the I-72
assessment) to pay continuing benefits to Northwest
pilots with low seniority who had participated in the
strike but had not yet been called back to work. Plain-
tiffs refused to pay the special assessment and unsuccess-
fully challenged its legality before the ALPA appeals
board. Although their appeal was rejected, plaintiffs
continued to refuse to pay the I-72 assessment. They did
not, however, attempt any further: legal challenge to the
assessment. ALPA subsequently expelled plaintiffs for
their refusal to pay.’
After their expulsion, ALPA informed plaintiffs that
under the union security clause, they were obligated to
continue paying the equivalent of union dues or face
termination from employment. In the period imme-
diately following their expulsion, plaintiffs refused to pay
the agency-shop fees demanded by the union. ALPA
requested Northwest Airlines to discharge plaintiffs in
compliance with the agency-shop clause. Plaintiffs sub-
sequently paid the delinquent service fees and ALPA
* Plaintiff Dearing was expelled from ALPA for refusing to return an
alleged over-payment of strike vsenefits. Because his case differs sub-
stantially from that of the other plaintiffs, it will be discussed separately
below.
-S5a-
withdrew its request. Plaintiffs have continued to pay
fees under protest.
C. Procedural History.
On May 8, 1979, plaintiffs filed suit in federal district
court seeking a declaratory judgment that they could not
be required, consistently with the provisions of section 2,
Eleventh of the Railway Labor Act, to pay the disputed
service ‘charges. The pilots argued that their expulsion
from ALPA for failure to pay the special Northwest
strike assessment was not an expulsion for failure to pay
the “pericdic dues, initiation fees and assessments (not
including fines and penalties) uniformly required” for
union membership. Hence, under section 2, Eleventh,
they could no longer be required to pay union support
or service charges. The complaint further alleged that
the procedure by which ALPA had imposed the I-72
assessment violated its constitution and section 101(a)(3)
of the Labor Management Reporting and Disclosure Act
of 1959, 29 U.S.C. § 411(a)(3) (LMRDA).
The district court denied ALPA’s motion to dismiss
the complaint for lack of jurisdiction, holding that
exhaustion of grievance procedures was not required and
that the complaint stated a cause of action against the
union for violation of section 2, Eleventh of the RLA.
Klemens v. Air Line Pilots Association, International,
484 F. Supp. 186, 188, 189 (W.D. Wash. 1980).’ Follow-
* In this initial decision, the district court also granted summary judg-
ment to ALPA on the plaintiffs’ breach of duty of fair representation
claim. Klemens v. Air Line Pilots Association, International, 484 F.
Supp. at 190. The plaintiffs do not appeal from the dismissal of this
claim. .
-§a-
ing this decision, the parties entered into a joint stipula-
tion of facts, and submitted the case to the court on
cross-motions for summary judgment.
The district court held, in an unpublished opinion,
that the action was not barred by the statute of limita-
tion. It agreed with the defendants that the calculation
of payments under the I-72 assessment on the basis of a
percentage of each pilot’s salary did not violate section 2,
Eleventh’s uniformity requirement and that the assess-
ment was not a penalty. It also agreed that the statute
does not require that assessments be periodic. It deter-
mined, however, that the procedure by which the I-72
assessment was authorized was not legal under the
ALPA constitution. Consequently, the court ruled that
under section 2, Eleventh, plaintiffs’ expulsion from
ALPA for failure to pay the I-72 assessment relieved
them of any obligation to pay the equivalent of union
dues. The district court, therefore, ordered ALPA to
return to plaintiffs all service charges that they had been
required to pay within three years of filing their com-
plaint. The court did not decide two other issues raised
by plaintiffs whether the assessment was not “uniformly
required” because only Northwest pilots had to pay it
and whether the assessment violated the LMRDA.
ALPA appeals from the district court’s ruling that
plaintiffs are no longer required to pay service charges
under the agency-shop agreement. The plaintiffs cross-
appeal from the district court’s ruling on some of their
Challenges to the assessment under the RLA.
-7a-
IT
DISCUSSION
ALPA contends that the district court lacked subject
matter jurisdiction and that the statute of limitation has
run on plaintiffs’ claims. It also challenges the district
court’s decision on the merits. Because we conclude the
district court erred in finding that a claim under section
2, Eleventh, could be based on the imposition of an
assessment in violation of the union’s constitution and
by-laws, we reverse and remand for determination of
issues not yet reached by the district court.
A. Plaintiffs’ Cause of Action Under the RLA.
The district court held that it had jurisdiction under 28
U.S.C. § 1337 (1976), which grants jurisdiction to federal
district courts over actions arising “under any Act of
Congress regulating commerce... .” The court held
that section 1337 gave it jurisdiction because plaintifffs
had stated a cause of action arising under section 2,
Eleventh of the Railway Labor Act. ALPA argues that,
for a number of reasons, this case does not present a
controversy justiciable in the federal courts. We affirm
the district court on this issue, finding that Congress
intended to create a cause of action against unions under
section 2, Eleventh in cases such as this, and that the
federal court is the appropriate forum for resolution of
the controversy.
Plaintiffs point out that actions against unions for
improper enforcement of union security agreements are
properly heard in federal courts in cases governed by the
-8a-
National Labor Relations Act (NLRA). See, e.g.. Local
1104, Communications Workers of America v. NLRB,
520 F.2d 411 (2d Cir. 1975), cert. denied, 423 U.S. 1041
(1976). This may be a starting point, but it does not
necessarily follow that such a case states a claim under
the RLA.
The NLRA and the RLA are fundamentally different.
Section 8(b)(2) of the NLRA makes it an unfair labor
practice for a union to attempt to cause an employer to
discharge an employee under a union security agreement
or to otherwise discriminate against an employee who
has been expelled from the union for a reason other than
failure to pay uniformly required dues. 29 U.S.C. §
158(b)(2). Thus, had this action been governed by the
NLRA, plaintiffs could have brought unfair labor prac-
tice charges against ALPA. See Local 1104, 520 F.2d at
313; NLRB v. Hershey Foods Corp., 513 F.2d 1083 (9th
Cir. 1975).
The RLA, however, contains no similar provision
making such union practices unlawful. Section 2, Elev-
enth allows union security agreements to be included in
collective bargaining agreements provided that they do
not require union membership as a condition of
employment with respect to employees to whom mem-
bership has been denied for a reason other than failure
to pay uniformly required dues and assessments. Agree-
ments, or specific applications of agreements, that are
inconsistent with this proviso are made unlawful only by
section 2, Fifth, which prohibits an employer from con-
ditioning employment on union membership except as
allowed by section 2, Eleventh. Nothing in these provi-
sions explicitly makes any union practice unlawful or
-Ja-
creates a cause of action against a union.
Nevertheless, we conclude that in enacting section 2,
Eleventh, Congress intended to create a cause of action
against unions that attempt to enforce agency shop
agreements in a manner inconsistent with the section 2.
Eleventh proviso. Two other circuits have so held.
In Bagnail v. Air Line Pilots Association, Interna-
tional, 626 F.2d 336 (4th Cir. 1980), cert. denied, 449
U.S. 1125 (1981), a case similar to this one, the Fourth
Circuit allowed an employee to sue its union for a viola-
tion of section 2, Eleventh, to recover service charges
paid under an agency shop agreement. The Third Cir-
cuit has held, as an alternative ground for decision, that
“in suits involving section 2 [, Eleventh] unions should
be held liable for their actions in procuring a discharge
which violates the employee{’s] statutory rights.” Brady
v. Trans World Airlines, Inc., 401 F.2d 87, 102 (3d Cir.
1968) (footnote omitted) (employee discharged after re-
fusing to pay back dues and reinstatement fee), cert.
denied, 393 U.S. 1048 (1969).
We do not believe Congress intended to deny employees
the right to hold their unions to the standard established
in section 2, Eleventh. In making union security agree-
ments lawful, Congress created an exception to section 2,
Fifth’s prohibition against employer coercion of union
membership, and explicitly overrode state “night to
work” laws prohibiting such agreements.* By the excep-
tion, Congress made it possible for unions to achieve a
* The section applies “Notwithstanding . . . any other statute or law . . .
of any state... .” 45 U.S.C. § 152, Eleventh.
-|0a-
great deal of power over employees: the power to cause
their discharge. Congress was concerned about unions’
abuse of this power, and enacted the proviso specifically
to prevent it. The report of the Senate Committee on
Labor and Public Welfare demonstrates this:
Your Committee desires to make it clear that the
proviso clauses in paragraph eieventh(a) are designed
to protect .. . employees [who are denied member-
ship in a labor organization]. . . [I]f membership is
denied or if an employee is expelled from member-
ship for any reason other than his failure to tender
the uniformly required periodic dues, initiation fees,
and assessments, he cannot be required to relinquish
his job because of his failure to join or remain a
member of a labor organization.
S. Rep. No. 2262, 8lst Cong., 2d Sess., reprinted in
1950 U.S. Code Cong. & Admin. News 4319, 4321-22.
The Supreme Court, in Steele v. Louisville & Nashville
Railroad Co., 323 U.S. 192 (1944), held that a union has
a duty under the RLA to represent all employees fairly.
The Court reasoned that in conferring on unions the
power to act as the exclusive representative of all
employees, Congress must have intended that they have
a corresponding duty to protect the interests of those
employees. 323 U.S. at 202. In finding that section 2,
Eleventh gives unions the duty to exercise their power of
discharge under union security agreements only in a
manner consistent with the statute, we adopt a similar
approach.
ALPA argues that this dispute cannot be resolved in
federal court because an adequate remedy is provided in
-lla-
the collective bargaining agreement. Under the agree-
ment, an employee may not be discharged under the
agency shop clause unless the issue has been determined
by a neutral arbitrator. The decision of the arbitrator is
final: if the employee loses, he is discharged.
We agree with the Fourth Circuit that for an employee
who does not want to risk discharge, “such a remedy is
tantamount to no remedy at all.” Bagnall, 626 F.2d at
342. We recognize that parties may, in a collective bar-
gaining agreement, waive their rights to a judicial
remedy. However, we do not find such a waiver here.
The arbitration procedures in the contract apply only to
employees who are threatened with discharge. Because
plaintiffs have continued to pay service charges, they are
in no position to invoke the arbitration remedy.
We recognize that in many areas Congress has left the
resolution of railway labor disputes to the machinery of
arbitration, mediation, and bargaining. Unless Congress
intends the right it has created to be enforceable in the
courts, they have no jurisdiction to resolve disputes.
See, e.g., Switchmen’s Union of North America v.
National Mediation Board, 320 U.S. 297 (1943) (courts
may not review Mediation Board’s choice of bargaining
representative); General Committee of Adjustment v.
Missouri-Kansas-Texas Railroad Co., 320 U.S. 323
(1943) (same); Fechtelkotter v. Airline Pilots Association,
International, 693 F.2d 899 (9th Cir. 1982) (courts lack
jurisdiction over action by employees against union for
alleged violation of agreement with employer). Courts
must “defer to the dispute settlement procedures of the
Act.” Fechtelkotter, 693 F.2d at 901. However, disputes
between a union and employees cannot be resolved by
-|2a-
adjustment boards, which were established by the RLA
to resolve grievances between employers and employees.
See 45 U.S.C. § 153, First(i) (1976); Steele, 323 U.S. at
205. Where, as in this case, the statute creates a right
but does not provide an adequate enforcement mecha-
nism, we may conclude that the right is enforceable in
federal court. “If the absence of jurisdiction of the fed-
eral courts meant a sacrifice or obliteration of a right
which Congress had created, the inference would be
strong that Congress intended the statutory provisions
governing the general jurisdiction of those courts to con-
trol.” Switchmen’s Union, 320 U.S. at 300. See Virgi-
nian Railway Co. v. System Federation No. 40, 300 U.S.
515 (1937) (courts may enforce RLA’s requirement that
employer bargain with employee representative); Texas &
New Orleans Railroad Co. v. Brotherhood of Railway &
Steamship Clerks, 281 U.S. 548 (1930) (courts may
enforce right under RLA to be free from coercion in
organization and choice of bargaining representative).
B. Propriety of the I-72 Assessment Under the Union’s
Constitution.
Although plaintiffs present a claim for violation of the
RLA over which the district court has jurisdiction under
§ 1337, we do not believe that jurisdiction encompasses
their claim that the I-72 assessment is improper under
the union’s constitution and by-laws. The district court
found that “{i]t is implicit in Section 2, Eleventh, that
unions may only require payment of assessments which
are legally authorized.” We do not agree insofar as the
legality referred tomeans conformity with the union’s
internal rules. There is nothing in the language or legis-
lative history that suggests that in enacting § 2, Eleventh,
-13a-
Congress intended to regulate the conduct of unions’
internal affairs. Congress was concerned only that
unions not use the mechanism of the union security
clause to discriminate against some members or to
enforce financial obligations (such as fines and penalties)
other than uniformly required “periodic dues, initiation
fees, and assessments... .” 45 U.S.C. § 152, Eleventh.
We find no basis for the claim that requiring service
charges for an employee expelled from the union for re-
fusing to pay am assessment not imposed in conformity
with internal union procedures violates section 2, Elev-
enth. Therefore, we must reverse the district court’s
decision on this issue.’
Such a claim may indeed constitute a breach of con-
tract justiciable under state law, but absent implication
of a statutory night, the district court has no basis for
jurisdiction under the RLA. See Fechtelkotter, 693 F.2d
at 902. Plaintiffs argue that the imposition of the
assessment violated the LMRDA. Because the district
court did not reach this issue, we decline to do so and
remand for consideration of this argument.
* Our decision is not in conflict with Bagnall, 626 F.2d at 340-42,
which, in a suit against a union alleging violation of section 2, Eleventh,
determined that the union’s attempt to collect a finance charge on non-
members’ monthly service charge payments was not authonzed under
the collective bargaining agreement’s agency shop clause. Section 2,
Eleventh, enables unions to obtain financial support from all employees
in the bargaining unit, but they may do so only pursuant to a collective
bargaining agreement. Were an employer to discharge an employee for
failure to pay union fees that were not authorized under the collective
bargaining agreement, it.would violate section 2, Fourth, which prohib-
its an employer from assisting in the collection of union dues except as
otherwise authorized by the RLA. These provisions demonstrate that
the statute is intended to prevent collection of union fees under threat
of discharge unless authorized by the collective bargaining agreement.
-|4a-
C. The I-72 Assessments Under Section 2, Eleventh.
Plaintiffs challenge the district court’s decision that the
I-72 assessment was “uniformly required,” within the
meaning of section 2, Eleventh, even though, because it
was based on percentage of salary, each pilot was
required to pay a different amount. The district court
relied on Bagnall v. A.L.P.A., 626 F.2d 336 (4th Cir.
1980), cert. denied, 449 U.S. 1125 (1981), which held that
union dues based on a percentage of earnings were “uni-
formly required” under section 2, Eleventh, noting that
the statute prescribes “uniformity” not “equality.” 626
F.2d at 339. That court held, and we agree, that the uni-
formity requirement was designed to prevent discrimina-
tion. The purpose is not violated when the imposition of
charges is based on a reasonable non-discriminatory clas-
sification. It is certainly reasonable for a union to base
dues or assessments on ability to pay. Cases decided
under the NLRA, which also contains a uniformity
requirement for dues enforced under a union security
clause, are consistent with this approach. See Aluminum
Workers Trade Council, 185 NLRB 69 (1970); Stage
Employees of Motion Picture Machine Operators Union,
140 NLRB 74 (1963); see also Schwartz v. Associated
Musicians of Greater New York, Local 802, 340 F.2d
228 (2d Cir. 1964). We affirm the district court’s deci-
sion on this issue.
ea
We also find no merit in plaintiffs’ challenge to the
district court’s findings that section 2, Eleventh, by its
terms, does not require that assessments be periodic, and
that they had failed to show the I-72 assessment was a
penalty. We do not address plaintiffs’ contention that
the assessment was not “uniformly required” because it
-|Sa-
was imposed only on Northwest pilots, which was not
decided by the court below. The district court may con-
sider the issue on remand.
D. The Statute of Limitation.
The district court ruled that a three year statute of lim-
itation was applicable to the plaintiffs’ claim under the
Railway Labor Act.*° The parties do not contest this
conclusion.’~ The district court held that even though
plaintiffs did not file suit until more than three years
after their expulsion from ALPA, their claims were not
barred. The district court reasoned that the claim for
violation of section 2, Eleventh was based on the imposi-
tion of service charges, not on the expulsion from
ALPA. These charges were imposed within the limita-
tion period.
* Plaintiffs argue that ALPA waived the statute of limitation defense
by failing to raise it below. We reject this argument. ALPA raised the
statute of limitation defense in its memorandum in support of its
motion for summary judgment, and the district court ruled on it. A
statute of limitation defense may be raised in a motion for summary
judgment, Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.
1980), and the district court in this case clearly ruled on the statute of
limitation as it applied to the RLA. Thus, even though ALPA failed to
raise the defense in its answer or to include it as an issue in the stipu-
lated pretrial order, plaintiffs are not prejudiced by our consideration of
the statute of limitation issue, and ALPA properly can appeal from the
district court’s ruling on this issue. See Glaziers & Glassworkers Local
767 v. Custom Auto Glass Distributors, 689 F.2d 1339, 1342 n.1 (9th
Cir. 1982).
' Because the parties do not appcal this ruling, we do not decide
whether the Supreme Court’s decision in Del Costello v. Teamsters, 103
S. Ct. 2281 (1983), requires that a six-month limitation period be app-
lied in actions under the RLA. In any case, this circuit has declined to
apply Del Costello retroactively. See Edwards v. Teamsters Local
Union No. 36, 719 F.2d 1036 (9th Cir. 1983), cert. denied, 44 Sup.Ct.
Bull. (CCH) BI715 (1984).
-|6a-
In order to apply the three-year statute of limitation to
this case, we must determine when plaintiffs’ alleged
cause of action under the RLA accrued. For this we
look to federal law. Archer v. Airline Pilots Association,
International, 609 F.2d 934, 937 (9th Cir. 1979), cert.
denied, 446 U.S. 953 (1980). See also Chung v. Pomona
Valley Community Hospital, 667 F.2d 788 (9th Cir.
1982). ALPA argues vigorously that, under federal law,
the plaintiffs’ cause of action accrued, and the statute of
limitation began to run, no later than their expulsion
from ALPA. The last such expulsion occurred on
March 17, 1976, more than three years before the plain-
tiffs commenced the; instant federal suit on May 8, 1979.
To support its argument that under federal law plaintiffs’
complaint is time-barred, ALPA cites Local Lodge 1424,
International Association of Machinists v. NLRB, 362
U.S. 411 (1960) (Bryan Manujacturing). Brvan Manu-
facturing involved application of section 10(b) of the
National Labor Relations Act, 29 U.S.C. § 160(b), to an
unfair labor practice charge. Section 10(b) precludes
review of acomplaint based on an unfair labor practice
occurring more than six months prior to the filing of the
charge. In Bryan Manufacturing, the union committed
an unfair labor practice by entering into a collective bar-
gaining agreement that contained a union security clause
at a time when the union did not represent a majority of
the employees. 362 U.S. at 412-13. More than six
months after execution of the collective bargaining
agreement, an employee filed an unfair labor practice
charge challenging the continued enforcement of the
union security clause. The Supreme Court found that
the charge was time-barred because enforcement of the
union security clause by itself was permissible. /d. at
417. The enforcement could be rendered invalid only by
-17a-
resurrecting a time-barred charge, i.e., execution of the
collective bargaining agreement with a security clause at
a time when the union did not have majority status. To
convert enforcement of a collective bargaining agree-
ment, perfectly lawful on its face, to an unfair labor
practice by reference to an event that, because of a time
limitation, could not be the subject of an unfair labor
practice complaint, would have vitiated the policies
underlying the six-month limitation. /d. at 419. Thus,
although enforcement of the agreement continued, it was
not a “continuing violation” because the initial execution
of the agreement was illegal and challenge to that execu-
tion was time barred.
This court’s 1977 decision in NLRB v. Local 30, Inter-
national Longshoremen’s & Warehousemen’s Union, 549
F.2d 698 (9th Cir. 1977), interprets Bryan Manufacturing
to mean that the six-month time period for filing an
unfair labor practice charge under section 10(b) begins to
run when “the laborer [is] in a position to file the unfair
labor practice charge, i.e., upon receipt of the notice of
the penalty.” /d. at 701 (citing and discussing Bryan
Manufacturing). We elaborated on this rule of accrual
in NLRB v. California School of Professional Psychol-
ogy, 583 F.2d 1099 (9th Cir. 1978), where we stated that
“the time limit of § 10(b) should begin running when the
employee can first file an unfair labor practice charge to
protect his interests.” /d. at 1101. A simular rule is
appropriate here.
Our analysis of the cause of action under section 2,
Eleventh, makes clear that plaintiffs’ cause of action did
not accrue until the union attempted to enforce the
agency-shop clause against them. The imposition of an
-18a-
assessment and the expulsion from union membership
are not themselves actionable under section 2, Eleventh.
The statute regulates only the use of the union security
agreement to cause discharge or enforce service fees.
Because ALPA’s attempts to enforce the agency-shop
clause occurred during the three years prior to the filing
of this action, plaintiffs’ claim under the RLA is not time
barred.”
III
PLAINTIFF DEARING’S CLAIMS
Unlike the other plaintiffs, Dearing does not base his
claim on the I-72 assessment. His case centers around
his refusal to return to ALPA an overpayment of strike
benefits.
When ALPA demanded return of the overpayment,
Dearing refused and tendered his resignation. ALPA,
however, declined to accept the resignation and con-
tinued to press its claim. When Dearing again refused to
pay, ALPA expelled him from the union. The district
court found that under section 2, Eleventh, the union
could not force Dearing to pay service charges because
he had been expelled for a reason other than failure to
* We note that application of the statute of limitation to a claim chal-
lenging the legality of the assessment itself or of plaintiffs,expulsion
from the union on a theory other than violation of section 2, Eleventh,
could resuit in a different outcome. The assessment and expulsion
Occurred more than three years before the filing of this suit, and the
current obligation to pay dues may be merely a continuing effect of the
prior improper act, as in Bryan. On remand, the district court may
consider whether plaiztiffs’ remaining claims are barred by the statute
of limitation.
-19a-
pay dues and assessments. It awarded damages to Dear-
ing, reduced by the amount of unreturned strike benefits
for which ALPA had counterclaimed.
On appeal, ALPA does not challenge the conclusion
that if ALPA expelled Dearing for refusal to repay the
benefits it lost the right to demand service charges.
However, it argues that Dearing resigned voluntarily and
therefore cannot claim any protection under section 2,
Eleventh.
The district court found that ALPA had declined to
accept Dearing’s resignation, and elected to expel him
instead. This is a factual conclusion. On reviewing the
evidence, we do not find it clearly erroneous. See Fed.
R. Civ. P. 52(a). Therefore, the district court did not err
in awarding Dearing reimbursement of his service charges.
Dearing challenges the district court’s award to ALPA
On its counterclaim on two grounds. First, he contends
the counterclaim is barred by the statute of limitations.
The district court held that because ALPA’s claim arose
out of the same transaction as Dearing’s claim, it was
not time barred. We agree. A claim for recoupment
that would otherwise be barred by the statute of limita-
tion may be brought to defeat a claim arising out of the
same transaction. See 3 J. Moore, Moore's Federal
Practice § 13.11 (2d ed. 1983). ALPA’s counterclaim
arises out of the same transaction as does Dearing’s
claim.
Second, Dearing argues that under the ALPA consti-
tution, expulsion or suspension is the union’s exclusive
remedy against a member who fails to meet his or her
-20a-
financial obligations. In United Glass Workers’ Local
188 v. Seitz, 65 Wash. 2d 640, 399 P.2d 74 (1965), the
Washington Supreme Court rejected a union's civil
action for payment of a fine. The court found that the
union constitution provided for expulsion or suspension
as the exclusive remedy for failure to pay fines. Jd. at
642, 399 P.2d at 75. The court premised its conclusion
on the principle that “when parties to a contract foresee
a condition which may develop and provide in their con-
tract a remedy for the happening of that condition, the
presumption is that the parties intended the prescribed
remedy as the sole remedy... .” /d.
Even were we to agree with the reasoning of Seitz, it is
not applicable to this case. The ALPA constitution pro-
vides expulsion as the remedy for any member’s failure
to pay “his dues, dues adjustment, assessment, monetary
fines, arrangement plan obligations, or any applicable
finance charge thereon... .” It does not mention the
mistaken overpayment of strike benefits. Rather, it is
concerned with ensuring the collection of ordinary union
revenue and enforcing union penal measures. The con-
tract does not limit ALPA’s remedies for recouping the
overpaid strike benefits.
CONCLUSION
The judgment in favor of plaintiff Dearing is
AFFIRMED. The judgment in favor of the other plain-
tiffs is REVERSED and the case is REMANDED for
further proceedings consistent with this opinion.
-2la-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
Thomas D. Klemens, Colin
F. Dearing, Thomas G. No. C79-587S
Giefer, Roy A. C. Hill,
Robert G. Maiers, oa ORDER ON PLAINTIFFS’
Plaintiffs, MOTION FOR SUMMARY
ve JUDGMENT AND DEFEN-
tro ee DANT’S CROSS-MOTION
Air Line Pilots Association, FOR SUMMARY JUDG-
International,
MENT
Defendent.
(Filed February 24, 1981)
THIS CAUSE comes before the Court on the above-
captioned Motions, argued on February 13, 1981. After
reviewing the Motions, memoranda, and other pleadings
herein, and being fully advised, the Court rules as
follows:
BACKGROUND FACTS
All parties agree that the material facts in this lawsuit
are not in dispute. Therefore, the case is appropriate for
adjudication by summary judgment. Rule 56, Fed. R.
Civ. P.
Since 1972, an agency shop agreement has been in
effect between Northwest Airlines, Inc. (Northwest) and
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the Air Line Pilots Association, International (ALP).
Under this agreement, ALPA is the exclusive collective
bargaining agent for Northwest pilots.
In 1972, the Northwest pilots went on strike. ALPA
assessed its entire membership to pay strike benefits.
When the strike ended, a number of pilots with low
seniority were not immediately recalled to active flying
status. On October 6, 1972, the Northwest Master
Executive Council (MEC) passed Resolution 1-72. Pur-
suant thereto, working Northwest pilots were assessed to
pay a supplemental monthly benefit to the pilots who
had not been recalled.
Plaintiffs Klemens, Giefer, Hill, and Maiers were pilots
who refused to pay the 1-72 assessment, which they con-
tend was illegally imposed. All four pilots were conse-
quently expelled from ALPA. See Exhibits E-4, F-1, F-
2,and F-3 to Joint Stipulation, filed April 22, 1980
(hereinafter “Joint Stipulation”). They have subse-
quently continued to pay agency shop “service charges”,
but they have done so under protest. Plaintiffs now
claim relief from these union payments under Section 2,
Eleventh, of the Railway Labor Act.
Plaintiff Dearing was also a Northwest pilot in 1972.
During the strike, he received strike benefits from
ALPA. The union now claims that most of those bene-
fits were paid under a “mistaken assumption”. See
defendant’s Memorandum, filed January 12, 1981, at p.
4. When ALPA demanded return of $675.00. Mr.
Dearing refused and tendered his resignation. See
Exhibit B-5 to Joint Stipulation. The union, however,
declined to accept the resignation and continued to press
iii
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its claim for $675.00. When Mr. Dearing again refused
to pay, ALPA issued a Notice of Impending Expulsion.
Exhibit B-10 to Joint Stipulation. On March 17, 1976,
Mr. Dearing was formally expelled for his failure to
return the strike benefits. See Exhibit B-12 to Joint
Stipulation. Like the other plaintiffs, Mr. Dearing
claims that the circumstances of his expulsion from
ALPA should relieve him of any subsequent obligation
to pay agency shop fees. He, too, relies upon Section 2,
Eleventh, of the Railway Labor Act.
Section 2, Eleventh was primarily designed to assure
that every worker in a bargaining unit would pay his or
her fair share in the costs of collective bargaining. It
was intended to combat the perceived problem of “free
riders”. At the same time, however, the statute contains
an important limitation on a union’s power to require
membership (or its equivalent) as a condition of
employment:
Provided, That no such [union securty] agreement
shall require such condition of employment with
respect to...employees to whom membership was
...terminated for any reas’ u other than the failure of
the employee to tender the periodic dues, initiation
fees, and assessments (not including fines and penal-
ties) uniformly required as a condition of acquiring
or retaining membership.
45 U.S.C. § 152, Eleventh(a). Plaintiffs here do not chal-
lenge their expulsion from ALPA. The issue is whether
the union may thereafter demand from them the equiva-
lent of membership dues.
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By their Complaint, plaintiffs seek to recover the “serv-
ice charges” paid under protest since the time of their
expulsion. By its Counterclaim, ALPA seeks to recover
$675.00 of “unreturned strike benefits” from Mr. Dear-
ing. See Joint Stipulation, at p. 3.
PLAINTIFFS’ CHALLENGES UNDER LANGUAGE
OF THE PROVISO
Plaintiffs assert, on a variety of grounds, that their
union membership was terminated for reasons other than
their failure to tender the “periodic dues, initiation fees,
and assessments uniformly required”.
Plaintiffs suggest that only periodic assessments are
permitted under Section 2, Eleventh. The union cor-
rectly responds that this interpretion of the statute is
unreasonable. See defendant’s Memorandum, filed Jan-
uary 12, 1981, at p. 16. In Section 2, Eleventh, the word
“periodic” modifies the word “dues”, not the word
“assessments”.
The 1-72 assessment, like ALPA’s periodic dues, was
calculated as a percentage of each pilot’s salary. Pilots
with different salaries paid differing amounts of the
assessment. The percentage, however, was constant.
Plaintiffs argue from this that the assessment was not
“uniformly required” from the pilots. A similar issue
was recently addressed by the Fourth Circuit in Bagnall
v. ALPA, 626 F.2d 336, 339 (4th Cir. 1980). There, the
court observed properly that the Railway Labor Act
requires only uniformity, not equality. By this standard,
ALPA must be held to have used a reasonable classifica-
|
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tion when it based the 1-72 assessment on a uniform per-
centage of each pilot’s earnings.
Piaintiffs have failed to produce any legal support for
their argument that 1-72 constituted a “penalty” under
Section 2, Eleventh.
THE CASE OF MR. DEARING
Under ALPA’s Constitution, a member’s voluntary
resignation was only effective if he had fully paid all out-
standing obligations to the union. See Article II, Section
8 of Exhibit H-2 to the Joint Stipulation. For this rea-
son, ALPA properly refused to accept Mr. Dearing’s
tender of resignation.
The union could then have proceeded through avail-
able adjudicative remedies to recover its stmke payments.
Instead, however, ALPA elected to expel Mr. Dearing
from its membership. The union is now estopped from
denying the fact of expulsion, and it must face whatever
legal consequences may follow.
It is further apparent that ALPA’s claim against Mr.
Dearing cannot reasonably be characterized as one for
“periodic dues, initiation fees, or assessments”. It fol-
lows under Section 2, Eleventh, that Mr. Dearing’s
expulsion relieved him of any subsequent obligation to
pay agency shop “service charges” to the union.
As to ALPA’s Counterclaim, Mr. Dearing does not
deny that he received $675.00 in strike benefits by mis-
take. Rather, he contends that the Counterclaim is
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barred by the applicable statute of limitations in
Washington. Had the union brought its counterclaim as
an independent action, it would certainly be barred by
the passage of time. As a counterclaim, however, it
arises directly from the same facts upon which plaintiffs
bring suit. ALPA is accordingly entitled to raise its
demand for $675.00 by way of recoupment against any
judgment in favor of Mr. Dearing. ALPA’s counter-
claim against Mr. Dearing is not barred as long as Mr.
Dearing’s own action is not barred. See generally 3
Moore's Federal Practice § 13.11 at p. 13-245.
VIOLATION OF ALPA’S 1972 CONSTITUTION
It is implicit in Section 2, Eleventh, that unions may
only require payment of assessments which are legally
authorized. On these facts, such an assessment must
have complied with both the ALPA Constitution and
any applicable federal labor statutes. When a pilot is
expelled for failing to pay a union assessment, “service
charges” may subsequently be required oly if the
assessment was legal in the first piace.
Plaintiffs allege at least three legal defects in the 1-72
assessment by which Section 2, Eleventh should relieve
them from agency shop fees. First, they say that 1-72
violated the 1972 ALPA Constitution and Bylaws.
Second, they say it failed to meet the uniformity
requirements of Section 2, Eleventh, because only
Northwest pilots were assessed. Third, plaintiffs contend
that 1-72 violated section 101(a)(3) of the Labor Man-
agement Reporting and Disclosure Act (LMRDA), 29
U.S.C. § 411 (a)(3).
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At least two ALPA Appeal Boards have adjudicated
challenges to “special benefit” assessments purportedly
authorized under the ALPA Constitution by the North-
west MEC. In 1974, one Board upheld the 1-72 assess-
ment under Article [X, Section 7(C) of the 1972 ALPA
Constitution. See Exhibit D-2 to Joint Stipulation. In
1977, however, another Board struck down the same
kind of assessment in the O’Neill case. See Exhibit H-1
to Joint Stipulation.
On balance, the Court finds O’Neill to be the better
reasoned of the two Appeal Board decisions. There, the
majority said that:
...the authority to levy assessments for special bene-
fit purposes is an exception to the authorities
granted to LECs and MECs under Article IX, Sec-
tion 7 B and C of the Constitution and By Laws.
Id., at p. 2. Indeed, Article IX, Section 7(A)(3) expressly
sets forth two alternative methods for authorizing such
an assessment. It must be approved either by ALPA’s
Board of Directors or by a two-thirds’ secret vote “of the
entire active membership in good standing”. This Court
finds that those two alternative procedures were intended
as the exclusive means for authorizing a “special benefit”
assessment. If MEC’s were intended to share this
authority, the 1972 ALPA Constitution should have said
so.
There is no dispute but that 1-72 was a “special
benefit” assessment. Nor does defendant claim that the
Northwest MEC complied with either procedure under
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Article IX, Section 7(A)(3). It tollows that the 1-72
assessment was not legally authorized under the ALPA
Constitution. It further follows that any pilot expelled
for refusing to pay that assessment was entitled to re-
cover any agency shop “service charges” thereafter required
by the union. 45 U.S.C. § 152, Eleventh.
It is no defense that ALPA may subsequently have
amended its Constitution to permit an MEC to authorize
“special benefit” assessments. This case and plaintiffs’
rights must be determined as of the time when 1-72 was
imposed.
Having reached this conclusion under the 1972 ALPA
Constitution and Bylaws, it is unnecessary to address
plaintiffs’ other claim under Section 2, Eleventh, or their
claim under the LMRDA.
STATUTE OF LIMITATIONS ON
PLAINTIFFS’ CLAIMS
Defendant contends that plaintiffs’ claims are “plainly
brought too late”. Detendant’s Memorandum, filed Jan-
uary 12, 1981, at p. 20. It cites a case from this District
to the effect that LMRDA claims are barred after three
years under Washington law. See Mitchell v. Local 46,
100 LRRM 2935, 2936 (W.D. Wa. 1979). ALPA sug-
gests that “plaintiffs’ claims accrued no later than Sep-
tember 1974,” when the union’s Appeal Board upheld the
1-72 assessment. Defendant’s Memorandum, at p. 20.
Plaintiffs’ principal claim, however, is for relief from
union “service charges”. ALPA has required payment of
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these charges periodically over the years since plaintiffs’
expulsion. Even if the wrongful imposition of 1-72 took
place outside the limitations period, plaintiffs’ cause of
action could accrue thereafter, as the requirement of
agency fees continued. Cf. In re Multidistrict Vehicle
Air Pollution, 591 F.2d 68, 72 (9th Cir. 1979).
Plaintiffs suggest that this action is based on a written
contract. There is of course no question but that written
documents provide an important basis for adjudicating
this case. A pilot’s obligation to pay ALPA “service
charges” arises under the written union security agree-
ment. See Exhibit A to Joint Stipulation. The proce-
dures for authorizing “special benefit” assessments are
specified in ALPA’s wnmitten Constitution. Plaintiffs’
Complaint, however, invokes federal court jurisdiction
by a claim of statutory right. See, e.g., Order of Febru-
ary 12, 1980, reprinted at 484 F. Supp. 186. Plaintiffs’
claim for relief from ALPA “service charges” does not ~
arise from a written contract, but rather under Section 2,
Eleventh, of the Railway Labor Act. That Act contains
no statute of limitations, so this case is governed by the
applicable period under Washington law. The State of
Washington tas no statute of limitations specifically
applicable to actions for liability created by statute. See
Mitchell v. Local 46, 100 LRRM 2935, 2936 (W.D. Wa.
1979). Following this Court’s previous ruling in Mit-
chell, however, it is appropriate to apply the three-year
statute of limitations under RCW 4.16.080(2) (governing
actions for injuries to “rights of another not herein
enumerated”).
The Compiaint in this case was filed on May 8, 1979.
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Plaintiffs accordingly are entitled to claim for recovery
of any “service charges” paid during the three years
immediately preceding the Complaint (or subsequently).
Any action to recover such payments made before May
8, 1976, however, is barred.
CONCLUSION
Plaintiffs are entitled to a judgment in the amount of
any agency shop “service charges” paid to ALPA on or
since May 8, 1976. ALPA, however, is entitled to reduce
Mr. Dearing’s judgment by way of recoupment in the
amount of $675.00.
Within twenty (20) days from the date of this Order,
plaintiffs are directed to file an affidavit showing the
amount of “service charges” paid on or since May 8,
1976. A Judgment will thereafter issue accordingly.
It is further ORDERED that unless union membership
is again tenderec to plaintiffs (without further claims for
the 1-72 assessment or rebate of strike benefits) ALPA is
herewith enjoined from requiring plaintiffs to pay any
future agency shop fees.
IT IS SO ORDERED.
The Clerk of this Court is directed to mail uncertified
copies of this Order to all counsel of record.
DATED at Seattle, Washington, this 24th day of Feb-
ruary, 1981.
/s/ Barbara J. Rothstein
UNITED STATES DISTRICT JUDGE
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
Thomas D. Klemens, Colin
F. Dearing, Thomas G. No. C79-587S
Giefer, Roy A. C. Gill,
Robert G. Maiers, sie ORDER ON PLAINTIFFS’
Plaintiffs, MOTION TO STRIKE
ae AND MOTION FOR
Air Line Pilots Association, PROTECTIVE ORDER
International,
Defendant.
(Filed October 31, 1980)
THIS CAUSE comes before the Court on plaintiffs’
Motion to Strike and Motion for Protective Order.
After reviewing the Motions, memoranda, and other
pleadings herein, and being fully advised, the Court rules
as follows:
Since 1972, an agency shop agreement has been in
effect between Northwest Airlines, Inc. (Northwest) and
the Air Line Pilots Association, International (ALPA).
Under this agreement, ALPA is the exclusive collective
bargaining agent for Northwest pilots.
This is an action by five Northwest pilots who were
expelled from ALPA. They claim that the circumstances
of their expulsion should relieve them of any subsequent
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duty to pay agency shop “service charges”.
The Court has previously ruled that plaintiffs have
Stated a proper cause of action under section 2, Eleventh,
of the Railway Labor Act, 45 U.S.C. § 152, Eleventh.
See Order of February 12, 1980, reprinted at 484 F.
Supp. 186.
Plaintiffs are represented in this action by counsel
from the National Right to Work Legal Defense and
Education Foundation, Inc. (NRWF), a non-profit foun-
dation which provides legal aid to workers challenging
“compulsory unionism”.
On or shortly after March 4, 1980, ALPA served
plaintiffs with its First Set of Interrogatories and
Request for Production of Documents. These inquiries
seek information to support the union’s Fourth Affirma-
tive Defense. See Answer, filed August 25, 1980, at p. 3.
By that defense, ALPA alleges that NRWF is an “inter-
ested employer association” under 29 U.S.C. § 411(a)(4)
which may not lawfully represent the plaintiffs in their
Suit against the union. The disputed statute is otherwise
known as § 101(a)(4) of the Labor-Management Report-
ing and Disclosure Act of 1959 (LMRDA). It protects
the might of union members to institute legal actions
against their unions. ALPA bases its Fourth Affirmative
Defense upon the second proviso to § 101(a)(4):
..no interested employer or employer association
shall directly or indirectly finance, encourage, or
participate in, except as a party, any such action,
proceeding, appearance, or petition.
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NRWFE takes the position that § i01(a)(4) is inapplica-
bie on its face. It has accordingly moved to strike the
union’s Fourth Affirmative Defense. Even if the statute
is held to apply, NRWF resists enforcement of the
union’s discovery requests, fearing that such inquiries
into its contributor lists could undermine its financial
support and effectiveness as a legal aid organization.
Finally, NRWF suggests that the second proviso to
§ 101(a)(4), if applied, would unconstitutionally infringe
plaintiffs’ rights to legal representation.
ALPA argues for a broad construction of the second
proviso. Although § 101(a)(4) purportedly guarantees
rights onl’ to union “members”, defendant contends that
the statute and its proviso should apply equally to non-
union workers in an “agency shop”. To support this
argument, ALPA draws an analogy to the relatively
broad construction of “membership” under the National
Labor Relations Act (NLRA). For example, in NLRB
v. General Motors Corporation, 373 U.S. 734, 83 S. Ct.
1453 (1963), the Supreme Court held that the Wagner
Act, which permits labor organizations “to require as a
condition of employment membership therein” [29 U.S.C.
§ 158(a)(3)], also permits the less restrictive requirements
of an “agency shop”. Relying on General Motors, the
Ninth Circuit has heid that an employee who pays
agency shop service charges is a union “member” for
purposes of protection from discharge under sections
8(a)(3) and 8(b)(2) of the NLRA. NLRB v. Hershey
Foods Corporation, 513 F.2d 1083, 1087 (9th Cir. 1975).
For purposes of this case, however, the controlling
definition of “member” is that contained in § 3(0) of the
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LMRDA itself:
“Member” or “member in good standing”, when
used in reference to a labor organization, includes
any person who has fulfilled the requirements for
membership in such organization, and who neither
has voluntarily withdrawn from membership nor
has been expelled or suspended from membership
after appropriate proceedings consistent with lawful
provisions of the constitution and bylaws of such
organization.
29 U.S.C. § 402(0). Courts have consistently relied on
this definition to determine which persons may assert
rights and privileges under § 101(a)(4). See, e.g., Gavin
v. Structural Iron Workers, 553 F.2d 28, 30 (7th Cir.
1977); Moynahan vy. Pari-Mutuel Employees Guild of
California, Local 280, 317 F.2d 209, 210-211 (9th Cir.
1963), cert. denied, 375 U.S. 911, 84 S. Ct. 207 (1964).
Plaintiffs reason that because § 3(0) is read narrowly to
define those who may obtain relief under section
101(a)(4), it should be read in the same way to decide
who is bound by the second proviso.
Plaintiffs have also identified serious constitutional
issues which arise if the Court adopts a broad construc-
tion of “member” and applies the second proviso to
§ 101(a)(4). Applying that proviso would effectively
deprive plaintiffs of their legal counsel, even though their
Complaint has already been found to state a valid cause
of action under the Railway Labor Act. Another consti-
tutional problem is posed by ALPA’s requests for dis-
covery about NRWF contributors. Disclosure of this
information could impair the Foundation’s ability to
-35a-
continue raising funds for its legal aid activities. As the
Supreme Court said in United Transportation Union v.
State Bar of Michigan, 401 U.S. 576, 585, 91 S. = ol
1076. 1082 (1971):
The common thread running through our decisions
in NAACP v. Button, 7rainmen, and United Mine
Workers is that collective activity undertaken to
obtain meaningful access to the courts is a funda-
mental right within the protection of the First
Amendment.
Discussing the second proviso to § 101(a)(4) and its con-
stitutional implications, the D.C. Circuit has written:
Any law that adversely affects the exercise of first
amendment freedoms in connection with legal aid
activity must be necessary to correct a serious and
substantive evil and must be precsely drawn to
serve that purpose. See, UMW, District 12 v. Illi-
nois State a 217, 222, 88 S. Ct. 353, 19
L. Ed. 2d 426 (1 ¥
International Union, United Automobile Aerospace and
Agricultural Implement Workers of America, et al. v.
NRWF, 590 F.2d 1139, 1147 (D.C. Cir. 1978) (Auto
Workers).
The court in Auto Workers went on to offer the fol-
lowing rule for construing the second proviso:
When the constitutionality of a statute is drawn into
question, a court must “‘ascertain whether a con-
struction of the statute is fairly possible by which
the question may be avoided.’” JAM v. Street, 367
-36a-
U.S. 740, 749-50... In deciding among possible
interpretations of a statute, the court must select an
interpretation that appears to be consistent with the
statute's consttutionality.
590 F.2d at 1148.
Plaintiffs in this action have all been expelled from
ALPA. They do not seek reinstatement in the union.
By a literal reading of 29 U.S.C. § 402(0), they do not
qualify as “members” under the LMRDA.
By its terms, the second proviso applies to “any such
action”, which refers back to suits by union members
against their unions. The second proviso should apply
to no broader group of employees than those whose
right to sue is protected under the main part of
§ 101(a)(4). Applying the definition of “member” in
§ 3(0) of the LMRDA, plaintiffs’ suit should not be sub-
ject to the proviso.
Although ALPA argues for a broader construction of
“member”, the Court is unwilling to expand the literal
scope of § 3(0) without some clear indication that Con-
gress intended such a result. There is no such indication
in this record. Indeed, it is plaintiffs’ construction which
best corresponds to the general scope of § 101(a)(4). The
body of that statute relates to intra-union rights (e.g.
between regular members and their labor organizations).
It follows that the second proviso should correspond-
ingly apply only to actions between unions and their
members. A literal application of § 3{0) further avoids
the serious question of whether the proviso is an uncon-
stitutional restraint on plaintiffs’ access to legal counsel.
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The Court finds that plaintiffs, having been expelled
from ALPA, are not “members”, as defined by 29 U.S.C.
§ 402(0). The Court further finds that the second pro-
viso to § 101(a)(4) does not apply to legal actions by
employees who are not “members” as defined in § 3(0) of
the LMRDA. It follows that the second proviso does
not apply to plaintiffs’ action in this case.
Under Rule 12(f), Fed. R. Civ. P., the Court may
strike “from any pleading any insufficient defense”. The
striking of such defenses is a proper means for expedit-
ing legal proceedings. See, e.g., United States v. 416.8]
Acres of Land, 514 F.2d 627, 630 n.3 (7th Cir. 1975)
(opinion by Mr. Justice Clark, sitting by designation). A
defense is insufficient “if it is clearly invalid as a matter
of law”. Anchor Hocking Corporation v. Jacksonville
Electric Authority, 419 F. Supp. 992, 1000 (M.D. Fla.
1976).
The granting of motions to strike is not generally
favored, because it is difficult to establish that a defense
is clearly insufficient. When such a showing is made,
however, the Court should grant a motion to strike “to
avoid unnecessary time and money in litigating invalid,
spurious issues.” /d., at 1000.
In this case, ALPA’s Fourth Affirmative Defense is
clearly insufficient as a matter of law. This conclusion
follows from the Court’s finding that § 101(a)(4) of the
LMRDA does not apply to plaintiffs’ action. It is there-
fore appropriate that ALPA’s Fourth Affirmative Defense
be stricken from the Answer.
-38a-
With the second proviso to § 101(a)(4) having been
held inapplicable, defendant’s proposed discovery no
longer bears any apparent relation to the issues at trial.
In addition, the granting of such discovery could very
well prejudice the activities of NRWF as a legal aid
organization. On these facts, it is appropriate to deny
enforcement of ALPA’s First Set of Interrogatories and
Request for Production of Documents.
Plaintiffs’ Motion to Strike is accordingly GRANTED.
The Clerk is directed to strike the Fourth Affirmative
Defense from the copy of defendant’s Answer which was
filed on August 25, 1980.
Plaintiffs’ Motion for a Protective Order is also
GRANTED. Rule 26(c), Fed. R. Civ. P. Plaintiffs are
accordingly not required to respond to ALPA’s First Set
of Interrogatories and Request for Production of
Documents.
IT IS SO ORDERED.
The Clerk is further directed to mail uncertified copies
of this Order to all counsel of record.
DATED at Seattle, Washington, this 3lst day of
October, 1980. |
/s/ Barbara J. Rothstein
UNITED STATES DISTRICT JUDGE
ee
-39a-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
Thomas D. Klemens, Colin
F. Dearing, Thomas G. No. C79-587S
Giefer, Roy A. C. Hill,
Robert G. Maiers, ay AMENDED ORDER ON
Plaintiffs, DEFENDANT'S MOTION
- FOR DISMISSAL, OR
3 diene ata ie ALTERNATIVELY FOR
Air Line Pilots Association, SUMMARY JUDGMENT
International,
Defendant.
(Filed February 12, 1980)
In 1972, the plaintiff, Thomas D. Klemens, was
employed as a pilot by Northwest Airlines, Inc.
(Northwest). He was a member of the Air Line Pilots
Association, International (ALPA), the statutory exclu-
sive collective bargaining agent for Northwest pilots.
Since October 3, 1972, an “agency shop” agreement was
in effect between Northwest and ALPA.
In 1972 after the termination of a pilots’ strike, a
number of Northwest pilots with low seniority were not
immediately recalled to active flying status. On October
6, 1972, the Northwest Master Executive Council (MEC)
passed resolution 1-72, which authomzed an assessment
upon working Northwest pilots to pay a monthly benefit
to the Northwest pilots who were not recalled.
-40a-
Mr. Klemens refused to pay the 1-72 assessment
because it was levied only against Northwest pilots and
not against the ALPA membership as a whole. How-
ever, Mr. Klemens continued to pay his regular member-
ship dues to ALPA until October. 1975, when he was
expelled from the union for failure to pay the 1-72
assessment.
After his expulsion from ALPA, Mr. Klemens refused
to pay the “service charge” (equivalent to dues) which is
generally required from non-union employees under the
“agency shop”. He based his refusal upon Section 2,
Eleventh, of the Railway Labor Act [45 U.S.C.A. § 152,
Eleventh].
By letter dated December 8, 1976, ALPA requested
Northwest to discharge Mr. Klemens for delinquency in
“service charge” obligations under the Union Security
Agreement. When Northwest threatened to discharge
Mr. Klemens, the latter paid his alleged deficiency to
ALPA, whereupon the union withdrew its request for his
discharge.
On May 8, 1979, Mr. Kiemens filed a Complaint seek-
ing a declaratory judgment that he is not obligated to
pay the ALPA “service charge” which he is currently
rendering under protest. He is joined by pilots Hill,
Maiers, and Giefer, who are similarly if not identically
situated. He is also joined by pilot Dearing, who was
expelled from ALPA for refusing *o return an alleged
overpayment of strike benefits. Their common claim is
that their union membership was “terminated for [a] rea-
son other than the failure...to tender the periodic dues,
initiation fees, and assessments...uniformly required as a
-4]a-
condition of acquiring or retaining membership.” 45
U.S.C.A. § 152, Eleventh (a). Plaintiffs also argue that
ALPA has breached its duty of fair representation.
The defendant responds that the above-quoted lan-
guage from section 152, Eleventh, was incorporated into
section (a)(1) of the Union Security Agreement between
ALPA and Northwest, as follows:
Membership in the Association or payment of the
aforesaid service charge shall not be a condition of
employment for any pilot to whom membership is
denied or terminated for any reason other than the
failure to tender the periodic dues, initiation fees
and assessments (not including fines and penalties)
uniformly required as a condition of acquiring or
retaining membership in the Association, ...
The Union contends that the plaintiffs’ claims are strictly
contractual and bound by the grievance-arbitration
procedure set forth in section (e) of the Union Security
Agreement. ALPA denies that plaintiffs have a cause of
action under the Railway Labor Act which is cognizable
by this Court, and it moves to dismiss the Complaint.
The union insists that arbitration is compelled both by
the Railway Labor Act and by general federal labor pol-
icv, as developed by case law. Finally, the defendant
argues that no rights arise under the federal statute
unless plaintiffs have first been discharged. As an alter-
native to an Order of Dismissal, ALPA seeks summary
judgment in its favor.
After reviewing the Motion, memoranda, and plead-
ings filed herein, and being fully advised, the Court rules
as follows:
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Plaintiffs’ claim is within the subject matter jurisdic-
tion of this Court if it arises “under any Act of Congress
regulating commerce.” 28 U.S.C. § 1337. The Railway
Labor Act has been held to qualify as such an “Act” for
purposes of federal court jurisdiction. See, e.g., Felter v.
Southern Pacific Co., 359 U.S. 326, at 329, 79 S. Ct.
847, at 851 (1959). Indeed, Congress intended labor
Organizations to “be held accountable for violations of
section 2 ... (Eleventh)”, Brady v. Trans World Airlines,
401 F.2d 87, at 102 (3rd Cir. 1968), cert. denied 393 U.S.
1048, rehearing denied 394 U.S. 955 (1969).
Plaintiffs have stated a cause of action under Section
2, Eleventh, of the Railway Labor Act, 45 U.S.C. § 152,
Eleventh. Defendant suggests that this provision merely
authorizes a union shop (and by construction, an
“agency shop”). However, this reading ignores the pro-
visoO to that section which states that such labor agree-
ments shall not require membership (or by construction,
the payment of alternative “service charges”) from
employees whose union membership was
denied or terminated for any reason other than the
failure of the employee to tender the periodic dues,
initiation fees, and assessments...uniformly required
as a condition of acquiring or retaining membership.
The mere fact that section (a) of the Union Security
Agreement between Northwest and ALPA incorporates
the language of Section 2, Eleventh, does not reduce
public rights under the statute to exclusively private con-
tractual rights. See Brady, supra, 401 F.2d at 95-96.
This Court’s jurisdiction over claims arising under fed-
eral statutes is not so easily foreclosed.
-43a-
Moreover, the defendant has cited no specific language
in the Railway Labor Act which requires the present dis-
pute to be arbitrated. At 45 U.S.C. §§ 183-184, the Act
designates certain disputes “between an employee or [a]
group of employees and a carrier or carriers” for media-
tion or arbitration, but the Act does not require such
handling of disputes between employees and their bar-
gaining represeritatives. In fact, the defendant conceded
that the present claim is not within the jurisdiction of the
System Board of Adjustment (in oral argument before
this Court, October 12, 1979). See also Brady, supra,
401 F.2d at 92. It follows that
Since the controversy arises under the laws of the
United States, 45 U.S.C., Section 151 et seq., ... the
case is within the jurisdiction of the District Court,
28 U.S.C., Sections 1332 and 1337, unless under the
Railway Labor Act jurisdiction is vested in one of
the administrative boards.
Brotherhood of Railroad Trainmen v. Smith, 25| F.2d
282, at 285 (6th Cir. 1958).
The defendant union contends that broad federal pol-
icy favors the arbitration of this labor dispute, but its
authority for this contention is inapposite. ALPA cites
cases arising in the collective bargaining context, L.e.
between labor and management. There, arbitration is
favored as a “substitute for industrial strife”, United
Steelworkers v. Warrior and Gulf Navigation Co., 363
U.S. 574, at 578, 80 S. Ct. 1347, at 1350 (1960), or as a
quid pro quo for a union’s agreement not to strike, Boys
Markets, Inc. v. Retail Clerk’s Union, Local 770, 398
U.S. 235, at 248, 90 S. Ct. 1583, at 1591 (1970). Those
rationales for arbitration do not apply in the present suit
—t4a-
by employees against their bargaining representative.
Moreover, this case is distinguishable from those cited
by the defendant in which federal courts required
employees to pursue intraunion remedies before going to
court. See Buzzard v. Local Lodge 1040 of the Interna-
tional Association of Machinists and Aerospace Workers.
480 F.2d 35 (9th Cir. 1973); Frederickson v. System Feda-
eration No. 114, 436 F.2d 764 (9th Cir. 1970). Here, by
contrast, there is no allegation of unexhausted remedies
available under ALPA’s Constitution or bylaws. Rather,
the question is whether the grievance procedure outlined
in section (e) of the Union Security Agreement is binding
upon plaintiffs in the claim at bar.
On these facts, section (e) of the Union Security
Agreement is not applicable. By its express terms, it
applies only to
A grievance by an employee who is to be discharged
as the result of an interpretation or application of
the provisions of this Union Security Agreement....
The plaintiffs correctly point out that
since the Plaintiffs are currently paying the required
service fees, there is nothing to trigger the sequence
of events leading up to the contractual arbitration ©
proceeding.
Plaintiffs’ Memorandum, filed September 14, 1979, at
pp. 5-6. The defendant concedes that there is no allega-
tion that ALPA has a pending request for Northwest to
discharge the plaintiffs. Therefore, this Court need not
mentee.
ll
East ab. sore ae
-4Sa-
now decide whether section (e) would bind the plaintiffs
in the event of their discharge. It is enough to decide
that where, as here, the employees have neither been dis-
charged nor face imminent discharge, the grievance
procedure under section (e) is inapplicable.
In addition, there is no ment to defendant’s suggestion
that plaintiffs have no justiciable claim until they are dis-
charged. Their payment under protest of union service
charges, if wrongfully required of them, gives rise to
actionable damages under the proviso to 45 U.S.C.
§ 152, Eleventh.
Because neither the Railway Labor Act nor the Union
Security Agreement requires the arbitration of plaintiffs’
dispute, they may invoke the jurisdiction of this Court to
pursue their statutory claims under 28 U.S.C. § 1337.
The defendant’s Motion to Dismiss is accordingly
DENIED.
There is, however, some merit to defendant’s prayer
for summary judgment regarding plaintiffs’ allegation
that ALPA breached its duty of fair representation.
Writing for the Ninth Circuit, Judge Eugene A. Wnght
explained that
Fair representation is a statutory duty of the union
to represent fairly all its members, both in the con-
duct of collective bargaining and in the enforcement
of the resulting collective bargaining agreement.
Vaca v. Sipes, 366 U.S. I71, 37 5. Ce. G3, ...
(1967). ...
Of course, for such a claim to succeed, there must
be “substantial evidence of fraud, deceitful action,
or dishonest conduct” on the part of the union.
-46a-
[citing cases]
Buzzard, supra, 480 F.2d 35, at 40. The Fifth Circuit
added
A DFR [duty of fair representation] breach occurs
only when a union’s dealings with the employer,
ostensibly on behalf of a member of the bargaining
unit, show that the union’s conduct toward the
member has been arbitrary, discriminatory, or in
bad faith.
Smith v. Sheet Metal Workers, 500 F.2d 741, at 750 (5th
Cir. 1974). Plaintiffs’ present claim does not arise from
ALPA’s representing plaintiffs in “dealings with the
employer”. Rather, it arises in the direct relationship
between a union and members of its bargaining unit.
The statutory duty of “fair representation” does not
apply in this context, and the defendant is entitled to a
partial summary judgment as a matter of law. Federal
Rule 56(c}. Therefore, and only as to plaintiffs’ claim
that ALPA breached its duty of fair representation,
summary judgment is GRANTED. As to plaintiffs’
other claims arising under the Railway Labor Act, sum-
mary judgment is DENIED.
The Clerk of this Court is directed to send uncertified
copies of this Order to all counsel of record.
DATED at Seattle, Washington, this 12th day of Feb-
ruary, 1780.
/s/ Morell E. Sharp
UNITED STATES DISTRICT JUDGE
-47a-
UNITED STATES COURT OF APPEALS
bas FOR THE NINTH CIRCUIT
Thomas D. Klemens, et ai.,
Plaintiffs- A ppellees-
Cross-Appellants
Nos. 81-3657
VS. 81-3710
Air Line Pilots Association,
International,
Defendant- Appellant- ORDER
Cross-Appeliee.
(Filed June 20, 1984)
BEFORE: CHOY and FLETCHER, Circuit Judges,
and MacBRIDE,” District Judge.
The panel as constituted in the above case has voted
to deny the petition for rehearing and Judges Choy and
Fletcher have voted to reject the suggestion for rehearing
en banc.
The full court has been advised of the suggestion for
rehearing en banc, and no judge of the court has
requested a vote on the suggestion for rehearing en banc.
FRAP 35(b).
The petition for rehearing is denied and the suggestion
for a rehearing en banc is rejected.
* The Honorable Thomas J. MacBride, Senior District Judge for the
Eastern District of California, sitting by designation.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.