Opposition Brief — Klemens v. Air Line Pilots Ass'n, International

Office-Supreme Court, US.

FILED

v O6E 2g 19H

No. 84-464 ALEXANDER L STEVAS,

SS SSSSSS SSS SSS SSS SS SS SSS SSS SES SSS SHES ===

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1984

THOMAS D. KLEMENS, THOMAS G. GIEFER,

ROY A. C. HILL, and ROBERT G. MAIERS,

Petitioners,

Vv.

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR RESPONDENT

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL

IN OPPOSITION

GARY GREEN

1625 Massachusetts Ave.,NW

Washington, DC 20036

(202) 797-4096

Counsel for Respondent

Air Line Pilots Ass'n, Int'l

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ARGUMENT . o . > o _ . > oe > — + * 7 q

neo « 6 © ¢ * © © s+ & 6 ® @ » 18

aD es & Os £2 2's Oo ws Fe 2% fs

Detroit Council of Painters v.

Painters Local 127,

415 F.2d 1121 (9th Cir. 1969)

cert. denied, 397 U.S. 972 (1970) 16

Ellis v. Broth. of Ry. Airline and

S.S. Clerks,

hae Biles Bees (1986) . s + « 2 15

International Ass'n of Machinists v.

Street,

a a) eee Cee SG ee se Ss DS

Machinists v. Gonzalez,

7a Gees Bae Sees 8 ee el 12

Moor v. County Alameda,

> Se Se |. le) oe) 18

NLRB v. Allis-Chalmers Mfg. Co.,

poe Bees cee GAeeTE «oe 2 « « 128, 36

NLRB v. General Motors,

pe Re Mw Pe | Sl ) Re ae 1 ¢ |

Pennsylvania Railroad v. Rychlik,

Bae Goes SOG C1957) . «2 « « ohh, 12

Scofield v. NLRB,

ee ae Re.) 3S ee ye

United Mine Workers v. Gibbs,

an as. Foe Sa) «~~ « « eb?ty 18

a. <2 eo. eS

1947 Taft-Hartley Act,

ze 0.8.6. $2S6ta}(3) . . » . 9

1959 Landrum-Griffin Act,

eo. BOEeeertar « «6 «¢ « 15

Railway Labor Act,

45 U.S.C. §152, Eleventh . . Passim

MISCELLANEOUS

Cox, The Role of Law in Preserving

Union Democracy, 72 Harv. L. Rev.

Bae Sees Beeep +s te te et lle 13

Hearings on H.R. 7789 ~. . ~~ « « « 12

Senate Hearings on S. 3295... . 12

No. 84-464

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

THOMAS D. KLEMENS, THOMAS G. GIEFER,

ROY A. C. HILL, and ROBERT G. MAIERS,

Petitioners,

Vv.

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR RESPONDENT

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL

IN OPPOSITION

STATEMENT OF THE CASE

Respondent Air Line Pilots Association

("ALPA") accepts Petitioners' statement of

the case with the following modifications.

Petitioners’ Amended Complaint sets

out two causes of action. First, it alleges

that ALPA violated Section 2, Eleventh, of

the Railway Labor Act, 45 U.S.t. §152,

Eleventh, by insisting that Klemens and the

other Petitioners pay service charges, as

required by the bargaining agreement, even

after their expulsion from membership.

Second, it alleged that ALPA's insistence

also constituted a breach of the duty of

fair representation. Jurisdiction was pre-

mised entirely upon the Railway Labor Act,

and no references appeared in the Amended

Complaint to any state law.

The district court granted ALPA's motion

to dismiss the second cause of action alleg-

ing breach of “he duty of fair representa-

tion. Thereafter, the parties executed a

joint stipulation of facts and filed cross-

motions for summary judgment with respect

to the first cause of action. Petitioners

urged that they had all been expelled from

membership in ALPA for a 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 .. ." within the mean-

ing of Section 2, Eleventh. In support of

this assertion, Petitioners raised a

variety of contentions resting upon their

interpretation of Section 2, Eleventh.

In addition, Petitioners also claimed

in these summary judgment proceedings, for

the first time in any court, that Assess-

ment 1-72 was not imposed in conformity

with the provisions of ALPA's Constitution.

The joint stipulation of facts, and its

attached exhibits, fully illuminated the

nature of the "constitutional" issue which

Z

Petitioners sought to raise. Thus, the

Keferences designated "Stip." and "Stip.

Exh." are, respectively, to the Stipulation

and its attached exhibits as they appear in

the Court of Appeals' excerpt of record.

Northwest Master Executive Council ("MEC")

is an administrative subdivision of ALPA,

consisting of representatives elected by

the ALPA members employed by Northwest Air-

lines, Inc. ALPA's Constituticn provides

for an MEC at each represented airline to

assure local coordination of labor rela-

tions with each airline's management. When

pes adeiaian refused to pay MEC Assessment

1-72, and internal union enforcement pro-

ceedings were initiated as a result, che

question was raised before ALPA's internal

tribunals -- the Hearing Board and the

Appeal Board -- whether an MEC had authority

to impose such an assessment.

The purposes for which an MEC might

impose assessments were not subject to any

express limitation in ALPA's Constitution.

Stip. Exh. C-7. But in Article IX, Sec-

tion 7, of that Constitution, ALPA's high-

est governing body, its Board of Directors,

is authorized to levy assessments on

members "

to cover extraordinary ex-

penses .. . [and] for special benefit’ pur-

poses .. .' The "constitutional" questions

posed, therefore, were whether Assessment

1-72 was a "special benefit" assessment

and, if so, whether Article IX's grant of

power to the Board of Directors was exclu-

sive.

ALPA's internal tribunals answered

these questions in September 1974, conclud-

ing that Assessment 1-72 was properly levied

by the MEC, and that Petitioners were obliged

to pay it on pain of expulsion. Stip. Exh.

H-3. Petitioners did not seek judicial re-

view of that determination. Years after

their expulsions, however, the question

arose again. A similar MEC strike benefit

assessment was imposed by the Northwest MEC

in 1976, in the wake of a subsequent strike,

and a pilot-member named O'Neill refused to

pay. In April 1977, ALPA's Appeal Board,

by a 3-2 vote, concluded that the Board of

Directors’ authority in Article IX, Section

7, to levy assessments for special benefit

purposes "preempted" the authority of the

MEC to levy a supplemental strike benefit

assessment. The union charges against

O'Neill were therefore cismissed. Stip.

Exh. H-l.

At its next meeting, ALPA's highest

governing body, the Board of Directors,

reacted by amending the ALPA Constitution

for the express purpose of overruling the

decision in the O'Neill case, reinstituting

the 1974 interpretation, and clarifying

that MECs are authorized to impose assess-

ments for any "lawful trade union purpose.”

Stip. Exh. H=-4.

Over ALPA's objections, the district

court found it "implicit in Section 2,

Eleventh" (Pet. 26a) that unions may not

impose assessments unless they are author-

ized by the union's own constitution. The

district court, viewing the foregoing stipu-

lated facts, concluded that Assessment l-

72 had not been "legally authorized under

the ALPA Constitution." Pet. 28a. Reject-

ing the 1974 Appeal Board decision in which

Petitioners participated, the district

court concluded that the 1977 O'Neill case

was “on balance .. . the better reasoned

of the two Appeal %Soard decisions" (Pet.

27a) and it applied the O'Neill rule here-

in notwithstanding that ALPA's highest

governing body had overruled O'Neill. As

a consequence, the district court found it

unnecessary to reach some of Petitioner's

other claims.

On appeal, and cross-appeal, the court

of appeals reversed the district court's

decision insofar as it held chat a2 federally

justiciable Section 2, Eleventh, claim ex-

tends far enough to incluce a claim that a

union assessment was not imposed in

conformity with the union's constitution:

"Such a claim may indeed constitute a

breach of contract justiciable under

state law, but absent implication of a

statutory right, the district court

has no basis for jurisdiction under

the [Railway Labor Act].

* * *

There is nothing in the language or

legislative history that suggests that

in enacting Section 2, Eleventh, Con-

gress 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 obliga-

tions (such as fines and penalties)

other than [those] uniformly required

w

Pet. l2a-13a.

ARGUMENT

The decision of the court of appeals

addressed by this petition is clearly

correct, and there is no conflict of deci-

Sions or other basis warranting further

review.

The language and legislative history

of Section 2, Eleventh, of the Railway

Labor Act ("RLA"), and the case law con-

struing this provision (and its counter-

part provision in the 1947 Taft-Hartley

Act, 29 U.S.C. §158(a)(3)) all confirm the

propriety of the court of appeals determin-

ation. Congress was not seeking, in enact-

ing Section 2, Eleventh, to regulate the

manner and method by which unions derived

their financial support; rather, it was

deciding whether such support could be

made a mandatory condition of employment,

despite the attendant loss of freedom of

choice to the employee. In so ruling, the

a

court of appeals was, in effect, tracing

the findings of this Court in International

Ass'n of Machinists v. Street, 367 U.S. 740,

750-764 (1961), and other ceses.

When Congress enacted Section 2, Ele-

venth, in 1951, its purposes were "clearly

revealed", Pennsylvania Railroad v. Rychlik,

352 U.S. 480, 489 (1957): to permit rail-

road and airline unions to require all re-

presented employees -- whether union members

or not -=- to provide financial support for

the work of collective bargaining. Prior

to 1951, the RLA did not allow compulsory

membership agreements at all in the rail-

road and airline industries. The 1947

Taft-Hartley amendments approved the union

shop for application in other industries,

however, and the railroad unions thereafter

‘ The history and import of this amend-

ment is reviewed in NLRB v. General Motors,

373 U.S. 734 (1963).

10

came to Congress in search of a similar

amendment. Section 2, Eleventh, of the RLA

is the direct product of that effort

Rychlik, supra, 352 U.S. at 489.

When Congress passed the 1947 union

shop amendment, it was well aware that

state law already governed questions of in-

terpretation and application of union con-

stitutions that arose in member-union dis-

putes, and it decided to leave that law

unchanged. NLRB v. Allis-Chalmers Mfg. Co.,

366. U.8.. 1754. 181-183, 1392 tise7):

ae Congress was operating within

the context of the ‘contract theory' of

the union-member relationship which

widely prevailed at that time

[and] did not propose any limitations

with respect to the internal affairs

of unions, aside from barring enforce-

ment of a union's internal regulations

to affect a member's employment status."

As the Court stated in Machinists v. Gonzalez,

356 U.S. 617, 620 (19586):

"(T]he protection of union members in

their rights as members from arbitrary

conduct by unions and union officers

has not been undertaken by federal law,

and indeed the assertion of any such

oe |

a ee ti ea ne eee ee ee

nae cecenscnenaitill

power has been expressly denied."

Advocates of the 1951 RLA amendment,

the legislative history shows, emphasized

that their proposal was not aimed at inter-

fering with any employee's job rights for

breach of union rules or for any reason

other than his refusal to pay the union's

usual financial obligations. See, e.g.,

Hearings on H.R. 7789 before the Committee

on Interstate ie Foreign Commerce, U.S.

House of Representatives, 8lst Congress,

ea Seeesoe, OC pe. 11, 72273, 77, 246-247;

Senate Hearings on S. 3295, 81st Congress,

2d Session, p. 23. When some legislators

expressed concern that compulsory member-

ship provisions might nonetheless conceiv-

ably serve as a device to punish employees

who disagreed with the union's policies or

leadership (House Hearings, pp. 19-20, 115,

142; Senate Hearings, pp. 167-169, 320),

3

Accord: Scofield v. NLRB, 394 U.S. 423,

426, n.3 (1969). *

the bill was revi_ved to emphasize its

limited nature, i.e., to compel mandatory

financial support for the union's bargain-

ing functions without exposing individual

employees to reprisal because of any other

union requirements. House Hearings, pp.

246-247. The "uniformity" clause was part

, — -

of this revision. Street, supra.

In light of these manifest legislative

concerns and objectives, the court of

appeals was clearly correct in holding that

Section 2, Eleventh, would not sanction an

inquiry into whether a particular union

assessment was duly authorized by the union's

constitutional provision. The purpose of

4 As one informed commentator put it,

"This limitation was intended to pre-

vent a union frem using control over

its members' jobs for such purposes

as punishing the exercise of free

speech, engaging in political activi-

ties distasteful to the union, or

testifying against the union." Cox,

The Role of Law in Preserving Union Demo-

cracy, 72 Harv. L. Rev. 609, 624 (Feb.

1959).

(RIC AW ahs hath 6

Le hee.

13

the "uniformity" proviso is to protect en-

ployees against discharge if they comply

with the union's normal and customary fin-

ancial requirements, and not to open to

federal scrutiny the union-member relation-

ships created by the union's constitution.

Moreover, any effort to find in the

terms of Section 2, Eleventh, an authori-

zation for federal court enforcement of a

union's constitution would conflict with

the realities of subsequent legislative

history. As the Court explained in

5

Indeed, it was precisely because the

1951 amendment left the railroad unions

"completely free to make their own bylaws

and requirements" and contained "no limita-

tion whatever on the amount of dues, fees

or assessments", that railroad management

opposed the bill. Statement of Daniel P.

Loomis, Chairman of the Association of

Western Railways, House Hearings at pp. 160,

172-73. As the Court recently observed in

Ellis v. Broth. of Ry. Airline and §S.S.

Clerks, —— U.S. ——, 104 S.Ct. 1883, 1891

(1984): "Indeed, several witnesses appear-

ing before the congressional committees ob-

jected to the absence of any explicit limi-

tation on the scope or amount of fees and

dues that could be compelled .. . Congress

enacted the provision over these objections

w

. . .

Allis-Chalmers, supra,

"The 1959 Landrum-Griffin amendments

[were] thought to be the first compre-

hensive regulation by Congress of the

conduct of internal union affairs

In 1959 Congress did seek to protect

union members in their relationship to

the union .. . The Eighty-Sixth Con-

gress was thus plainly of the view

that union self-government was not

regulated [under preexisting federal

lawl «3. SSS ULE. GE SR RRS «

Petitioners cite no authority for their

assertion that the court of appeals erred,

and no evidence that the subject of its

ruling is an important or recurring problem

in any event.

Petitioners' assertion (Pet. 8-10) that

membership levies not actually authorized

. To be sure, the 1959 Landrum-Griffin

Act does require dues and assessments to

be imposed only after specified minimal

procedural requirements, aimed at insur-

ing democratic process, are observed. 29

U.S.C. $411(a) (3). See Detroit Council of

Painters No. 16 v. Painters Local 127, 415

F.2d 1121 (9th Cir. 1969), cert. denied,

397 U.S. 972 (1970). Petitioners have

also argued that Assessment 1-72 violates

this statutory provision but neither the

district court nor the court of appeals

has yet addressed the question (Pet. 13a)

and it is not presented here.

15

re

by a union constitution are necessarily

"penalties" within the meaning of Section

2, Eleventh, is likewise unsupported by

any authority and simply illustrates and

restates Petitioners’ desires for an un-

warranted expansion of the statute.

Finally, Petitioners complain that the

court of appeals violated the teachings of

this Court on the subject of pendent juris-

diction. According to Petitioners, Pet.

10-13, if the validity of the assessment

under ALPA's Constitution is a state law

question, as the court of appeals held,

that question should nevertheless have

been considered and decided because of the

pendent jurisdiction doctrine elucidated

by the Court in United Mine Workers v. Gibbs,

383 U.S. 715 (1966). This assertion fails

to raise an issue worthy of the Court's

attention.

"It has consistently been recognized

that pendent jurisdiction is a doctrine

16

ACM Ae eR Oe ee

of discretion, not of plaintiff's right.

Gibbs, supra, 383 U.S. at 726.

The power to hear a state law claim, even

where it exists, "need not be exercised in

every case", Id., and the district courts

must be given a "broad discretion" in such

matters. Moor v. County of Alameda, 441

U.S. 693, 716 (1973).

In this case, it surely suffices to note

that Petitioners never identified a state

law claim or asked the district court to

assert pendent jurisdiction; indeed, the

notion of pendent jurisdiction itself was

only introduced into these proceedings in

the petition fer rehearing filed after the

issuance of the court of appeals decision

which is the subject of this petition.

There are other sound reasons which might

be marshalled to support an exercise of

discretion herein declining any ruling on

a state law issue, see Gibbs, supra, at

726-27, but the fact that Petitioners never

even made a timely request for such a ruling

is of itself dispositive.

CONCLUSION

For reasons stated, the petition for a

writ of certiorari in No. 84-464 should be

denied.

Respectfully submitted,

“dh

GARY GREEN

Counsel for Respondent

Air Line Pilots Ass'n,

International

1625 Massachusetts Ave. NI

Washington, DC 20036

(202) 797-4096

October /f, 1984

18