Petition for Writ of Certiorari — Nelson v. Piedmont Aviation, Inc.

meRDEF L STEvaAa,

IN THE

Supreme Court of the United States *

OCTOBER TERM, 1984

LLOYD LEE NELSON,

Petitioner,

V.

PIEDMONT AVIATION, INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT F. GORE

REX H. REED

c/o National Right to Work Legal

Defense Foundation, Inc.

8001 Braddock Road, Suite 600

Springfield, Virginia 22160

HAMILTON HORTON

Horton, Hendrick & Kummer

450 NCNB Plaza

Winston-Salem, North Caroiina 27101

Attorneys For Petitioner

March 28, 1985

Wo PV

she

QUESTION PRESENTED

Whether the court below erred in its statutory construc-

tion of the Railway Labor Act’s definition of “employ-

ee”; where the lower court’s interpretation, if Anowed to

stand, would:

— defeat the intent of Congress, and

— allow carriers to discriminate against “applicants

or employiment” because those applicants had

previously exercised their statutory right to

support or not support labor unions.

-ii-

TABLE OF CONTENTS

Page

ee 8g 1 8 8 9 9» RU i

PT PU TRETE DD once csc vdiccsccesccccevevesees li

pe EN Sg a) 9 5 | 5 Sar iv

REPORT OF THE OPINION BELOW ................ l

ee diss ci tebaVesecisddeavais ce tséecs vcs 2

APPLICABLE STATUTORY PROVISIONS.......... 2

DEPP EEN OF LEB CASE ......ccccccccccccsccnces 5

REASONS FOR GRANTING THE WRIT ............ 9

The Fourth Circuit’s Narrow, Literal

Construction of the Statutory Definition

of “Employee” Conflicts with Decisions

of This Court and Other Courts of Appeal............ 9

A Decision by This Court is Necessary to

Settle an Important Question of Law ................ 12

er Sedkeeiih Gp rcsa evel aovessscesecanes 13

-iii-

TaBLe oF ConTENTs—continued

Page

APPENDICES

A - Decision of the United States Court

of Appeals for the Fourth Circuit................ la

B - Decision of the United States

District Court for the Middle

District of North Carolina ...................... 10a

-jV-

TABLE OF AUTHORITIES

Cases

Air Line Pilots Association v. Alaska Airlines, Inc.

Tad Fk SON ND onan esis snvesiscces

Andrews v. Louisville & Nashville R.R., 406 U.S.

PST 6 bas ies os de es chk wa Mh ch kd

Florida East Coast Ry., NMB Case No. R-212

PE as ores <oGb dk aoa a be aed ee tas

Moore v. Illinois Central Ry., 312 U.S. 630 (1941)

Nashville, C. St. L. Ry. v. Railway Employees’

Dept., 93 F.2d 340 (6th Cir.), cert. denied,

ge ee ee eee

Nelson v. Piedmont Aviation, Inc., 750 F.2d

Se EG HE oc nsc coksascacacduscsvuusaes

Pennsylvania R.R. v. Day, 360 U.S. 548 (1959) ...

Peterson v. Air Line Pilots Association, U.S.

Dist. Ct. M.D.N.C., Civ. No. C-80-341-WS ....

Slocum v. Delaware, L. & W. R. Co., 339 U.S.

PEE ahs 53 os4i vi cca teh eeaaeien ae

Southern Pacific Lines, NMB Case No. R-426

raped nepnipebiiis de, Tie we ea tenat ee

>

-V-

TABLE oF AUTHORITIES—continued

Page

Statutes

Railway Labor Act, 45 U.S.C. § 151 et seq. ....... passim

§ 1 Fifth, 45 U.S.C. § 151 Fifth ..................06. 2

§ 2, 45 U.S.C. OPGTER Cis ceecdsn iis ceite eae 2

§ 2 Fourth, 45 U.S.C. § 152 Fourth................. 2,8

ee Ig Oe Ns Be FUROR ns nds sa sccasencasecne 2

PTE SE ashi Na cinusdvisdkvesdaeeatebeds 2

I REP AME bn sc vc evacksacdhbesendenusdauns 2

United States Code

GE: METRES hk bv dvds Wales dh aneieuskcecksswabes 2

oS ee eee ety Pre PRC ere eee ae 2

Supreme Court Rules

| ENS OTT TORT TET TST TTT ETT eT Pee 2

TS

-vi-

TaBLe oF AuUTHORiTIES—continued

Page

Miscellaneous

Fuller, The Case of the Speluncean Explorers,

62 Harv. L. Rev. 616 (1949) ..... 0... cece eee eee 9

Mes are arr ees Fe

No. 84-____

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

LLOYD LEE NELSON,

Petitioner,

Vv.

PIEDMONT AVIATION, INC..,

Respondent. ‘

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioner Lloyd Lee Nelson prays that a writ of certio-

rari issue to review the judgment of the United States

Court of Appeals for the Fourth Circuit in the above-

entitled case.

REPORT OF THE OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fourth Circuit is reported at 750 F.2d 1234 (4th Cir.

1984) and is reproduced as Appendix A to this petition.

The unreported decision of the United States District

Court for the Middle District of North Carolina is re-

produced as Appendix B to this petition.

x

JURISDICTION

The decision of the court of appeals was entered on

December 28, 1984. Jurisdiction to consider this petition

is governed by the provisions of Rule 20.2 of the Revised

Rules of this Court and Sections 1254(1) and 2101(c) of

Title 28, United States Code. (Petition to be filed within

ninety (90) days after the entry of the final judgment or

decree of the Court of Appeals.)

APPLICABLE STATUTORY PROVISIONS

The statute involved is the Railway Labor Act

(“RLA”), as amended, 45 U.S.C. § 151 et seg (1982). The

relevant sections of the RLA are Section | Fifth, Section

2, Section 2 Fourth and Fifth, Section 201, and Section

202. These sections are codified as 45 U.S.C. §§ 151

Fifth, 1S5la, 152 Fourth and Fifth, 181 and 182 (1982),

respectively. These sections provide in pertinent part:

RLA § | Fifth The term “employee” as used

herein includes every person in

the service of a carrier (subject

to its continuing authority to

supervise and direct the manner

of rendition of his service) who

performs any work defined as

that of an employee or subordi-

nate official in the orders o1 :he

Interstate Commerce Commission

now in effect, and as the same

may be amended or interpreted

RLA § 2 The purposes of the [RLA] are:

RLA § 2 Fourth

RLA § 2 Fifth

_"

(1) To avoid any interruption to

commerce or to the operation of

any carrier engaged therein; (2)

to forbid any limitation upon

freedom of association among

employees or any denial, as con-

dition of employment or other-

wise, of the right of employ-

ees to join a labor organization;

Employees shall have the right

to organize and bargain collec-

tively through representatives of

their own choosing. ... No

carrier, its officers, or agents

shall deny or in any way ques-

tion the right of its employees

to join, organize, or assist in

organizing the labor organiza-

tion of their choice, and it shall

be unlawful for any carrier to

interfere in any way with the

organization cf its employees

... Or to influei *e or coerce em-

ployees in an effort to induce

them to join or remain or not to

join or remain members of any

labor organization....

No carrier, its officers, or agents

shall require any person seeking

employment to sign any ton-

tract or agreement promising to

join or not to join a labor

organization; and if any such

contract has been enforced prior

RLA § 201

RLA § 202

4-

to the effective date of this

chapter, then such carrier shall

notify the employees by an ap-

propriate order that such con-

tract has been discarded and is

no longer binding on them in

any way.

All of the provisions of [the

RLA] .. . are extended to and

shall cover every common Car-

rier by air... and every air

pilot or other person who per-

forms any work as an employee

or subordinate official of such

carrier or carriers, subject to its

or their continuing authority to

supervise and direct the manner

of rendition of his service.

The duties, requirements, penal-

ties, benefits, and privileges pre-

scribed and established by the

provisions of [the RLA]:. .

shall apply to said carriers by

air and their employees in the

same manner and to the same

extent as though such carriers

and their employees were specifi-

cally included within the defini-

tion of “carrier” and “employ-

ee”, respectively, in [section | of

the RLA].

%

STATEMENT OF THE CASE

This is a Railway Labor Act case involving the issue

of whether “applicants” for employment enjoy the pro-

tections of the statute. The petitioner, a well-qualified

airline pilot, was denied employment at Piedmont Avia-

tion, Inc. (“Piedmont”) solely because Piedmont feared

retaliation by the pilot’s union because the petitioner had

flown during the union’s strike while employed at

another air carrier.

This case arises out of a bitter labor dispute between

the Air Line Pilots Association, International (*“ALPA”)

and Wien Air Alaska (“Wien”), a small regional air car-

rier operating in the Pacific Northwest. In 1977 ALPA

commenced a strike against Wien, but the airline con-

tinued to operate its aircraft by hiring replacement pilots.

The petitioner was hired by Wien in 1978 and flew

throughcut the remainder of the strike.

This strike was to become the second longest strike in

aviation history and was finally settled in January of

1979 after Congress directed the President of the United

States to intervene and established an Emergency Board.

Presidential Emergency Board No. 95-504. The Interim

Report of the Emergency Board, which was accepted by

all of the parties, restored the striking pilots to their old

jobs and provided:

Though the replacement pilots are thus displaced

they remain on the Wien pilots seniority list. Assur-

ance lias been given by [Wien and ALPA] that no

pilots shall be subject to discrimination, fines or

harrassment, either by reason of the strike or other

-6-

protected activities, work during the strike or service

as a replacement during the strike period.

As it is our recommendation that the replace-

ments be displaced and . . . the Board recommends

. the . . . displaced replacements be provided the

monetary benefits and job opportunities with air-

lines other than Wien afforded protected employees

displaced under the [Air Line Deregulation] Act.

Emergency Board No. 95-504 Presidential Report, 7

(1979).

Notwithstanding its assurance that it would not retal-

iate against the replacement pilots, ALPA published and

distributed a “blacklist” of the pilots who had flown dur-

ing the Wien strike. After the strike was settled, the peti-

tioner and many other Wien replacement pilots sought

employment with other airlines, including the respondent

Piedmont. The petitioner’s name was included on the

“blacklist” and he had great difficulty obtaining employ-

ment interviews. '

In May of 1979, Piedmont hired one of the Wien

replacement pilots, Howard Peterson, and he com-

menced flying scheduled flights in June 1979. On July,

19th, Piedmont responded to petitioner’s application for

employment and offered to fly him to Winston-Salem for

an employment interview. This interview was scheduled

for July 31, 1979.

' There is no evidence that Piedmont was aware of the “blackiist,” and

Piedmo i was the on/y major airline to ever hire any of the Wien pilots.

However, as noted, infra, Piedmont subsequently discharged the Wien

pilot to placate ALPA.

rn Ce ene ee ee nee

dhe

In the time period between the offer of an employment

interview and petitioner’s actual interview, ALP/. discov-

ered that Piedmont had hired Howard Peterson, one of

the “blacklisted” Wien replacement pilots. ALPA offi-

cials complained to Piedmont management that the

employment of a Wien “scab” was causing pilot “morale”

problems and might affect the upcoming contract negoti-

ations. Piedmont took no action. A few days after these

ALPA complaints, there was a significant deterioration

in the “on-time performance” of Piedmont’s passenger

flight operations. Piedmont officials became concerned

that the pilots were conducting a “slowdown” over its

hiring of a Wien replacement pilot.

The petitioner flew to Greensboro, North Carolina on

July 30th for his scheduled employment interview the

next day. He rode to Winston-Salem in a limousine with

a uniformed Piedmont captain. They had an amicable

discussion about flying for Piedmoni until the captain

learned that the petitioner had flown during the Wien

strike. At this time he became very irate and stated that

“he would do everything in his power to try and prevent

him or any other Wien ‘scab’ from obtaining employ-

ment at Piedmont.” The captain also stated that if peti-

tioner was hired by Piedmont, “ALPA would make his

life miserable.”

On the following day, the petitioner had a very short

employment interview with Piedmont’s Director of Per-

sonnel who told him that “ordinarily Piedmont would be

able to offer a position to a person with his experience.”

He added, however, that since the time that the interview

had been scheduled “some things had happened so that

-8-

they were not going to be able to offer the petitioner any

encouragement for employment at that time.” The Direc-

tor of Personnel explained that Piedmont “had already

hired one Wien replacement pilot and that they were

encountering problems that seemed to be related to his

employment.” The Director of Personnel described the

problems as delays and maintenance problems which did

not normally occur. Consequently, he stated that Pied-

mont would not commit itself to hiring any additional

Wien replacement pilots.* Following this brief five-

minute interview, the petitioner was ushered out a back

door.

Although Piedmont continued to recruit and hire addi-

tional pilots, it refused to reconsider the petitioner for

employment. Eventually, because of the effectiveness of

the ALPA biacklist and other carriers’ refusals to employ

Wien pilots, the petitioner left the country and went to

Saudi Arabia to find employment as an airline pilot.

The petitioner brought suit in federal district court

alleging that Piedmont violated Section 2 Fourth of the

Railway Labor Act, 45 U.S.C. § 152 Fourth (1982) by

refusing to hire him because he was not a member of

ALPA and had flown during the Wien strike. The dis-

trict court granted Piedmont’s motion to dismiss, holding

* Three days later, Piedmont discharged the one Wien pilot it had

already hired, supposedly because of the pressure of the pilot “siow-

down.” See Peterson v. Air Line Pilots Association, et al., U.S. District

Court for the Middle District of North Carolina, Civil Action No. C-80-

341-WS, presently on appeal to the U.S. Court of Appeals for the

Fourth Circuit, Docket No. 84-1186 (argued November |, 1984). Pied-

mont is no longer a party to this litigation, having reached an out-of-

court settlement with the pilot involved.

-9-

that a “mere applicant for employment” was not pro-

tected by the Act because it oniy “applied to “employees”

as defined by the statute.

The court of appeais, while acknowledging the equities

of petitioner’s situation, nonetheless affirmed the district

court’s narrow, literal interpretation of the statutory

definition of “employee,” holding that relief would have

to come from Congress. not the courts.

REASONS FOR GRANTING THE WRIT

Although one is hard-pressed to say that the Fourth

Circuit’s narrow, literal interpretation of the term “employ-

ee” is clearly erroneous,’ the petitioner submits that such

an interpretation defeats the intent of Congress in enact-

ing the Railway Labor Act. The Fourth Circuit’s deci-

sion, if allowed to stand, turns back the clock some sixty

years and allows carriers (employers) to discriminate

against workers solely because of their union or non-

union beliefs or activities. The RLA is the oldest of the

many federal labor laws protecting the associational

rights of workers; it would be a strange twist of fate to

have it now construed to be the only federal labor law

allowing employers to discriminate against workers for

having exercised their associational rights.

The Fourth Circuit’s Narrow, Literal Construc-

tion of the Statutory Definition of “Employee”

Conflicts with Decisions of This Court and

Other Courts of Appeal.

* See Fuller, The Case of the Speluncean Explorers. 62 Harv. L. Rev.

616 (1949).

-10-

Although there are no previous RLA cases discussing

the employment status of “applicants for employment,”

there are cases which have broadly construed the RLA’s

statutory definition of “employee” to ensure that justice

was served. For example, in Pennsylvania R.R. v. Day,

360 U.S. 548 (1959), this Court had to decide whether

“retired” workers were still “employees” within the mean-

ing of the Act. Justice Black, in dissent, stated:

[s]eemingly to highlight the fact that the Act is to

govern active workers only, Congress defined “em-

ployee” as “every person in the service of a carrier

(subject to its continuing authority to supervise and

direct the manner of rendition of his service) who

performs any work defined as that of an employee

... ” The railway engineer who brought this suit

was not an employee within this definition. Prior to

the suit he had resigned his job, and had claimed an

annuity under the Railroad Retirement Act of 1937,

which requires a worker making such a claim to

relinquish all rights to return to railroad service in

the future. Under these circumstances, the retired

employee could not be, and was not “in the service”

of the railroad or “subject to its continuing author-

ity to supervise .. . the manner of rendition of his

service.”

360 U.S. at 555 (Black, J.. dissenting) (footnotes omit-

ted). Notwithstanding Justice Black’s statutory argument,

the Court broadly construed the statute and held that

“retired” workers were employees within the meaning of

the RLA. Accord Air Line Pilots Association v. Alaska

Airlines, Inc., 735 F.2d 328 (9th Cir. 1984).

Additionaily. both the National Mediation Board and

ti

Courts of Appeal have held that “furloughed” workers

are employees within the meaning of the RLA, even

though they quite obviously are not “in the service” of

the carrier or “subject to its continuing authority to

supervise . . . the-manner of rendition of his service.”

See, e.g., Nashville, C. St. L. Ry. v. Railway Employees

Dept., 93 F.2d 340 (6th Cir.), cert. denied, 303 U.S. 649

(1938); Florida East Coast Ryv., NMB Case No. R-212

(1936); Southern Pacific Lines. NMB Case No. R-426

(1938) (citing Nashville, C. St. L. Ry., supra).*

Finally, it should be noted that “discharged” workers

remain “employees” within the meaning of the RLA.

Initially this Court held that it was up to the discharged

worker whether or not he desired to be treated as an

“employee” under the statute. See Moore v. Illinois Cen-

tral Ry., 312 U.S. 630 (1941); Slocum v. Delaware, L. &

W. R. Co., 339 U.S. 239 (1950). However, in 1972 the

Court overruled Moore, holding that “discharged” workers

* It should be noted that at the time Piedmont refused to hire the peti-

tioner, he was on “furlough” from Wien and stili on its Pilots’ Seniority

List. Thus, under the rationale of the Nashville case, supra, the peti-

tioner was an “emplovee”™ within the meaning of the RLA. As pre-

viously noted, the Presidential Emergency Board recommended to the

President of the United States that the furloughed Wien pilots be given

job opportunities with other airlines and enjoy the labor protection pro-

visions (including the first right of hire) of the Airline Deregulation Act

of 1978. Thus, even if one construes the term “employee” narrowly, it is

clear that the petitioner was one of the workers that the courts and the

Emergency Board believed should be protected from discriminatory hir-

ing practices.

-12-

were “employees” and had to utilize the mandatory arbi-

tration procedures of the RLA. Andrews v. Louisville &

Nashville R.R., 406 U.S. 320 (1972).

Although these cases can be distinguished because—at

one time or another—“furloughed,” “discharged,” or “re-

tired” workers actually satisfied the literal definition of

“employee,” they also demonstrate that federal agencies

and this Court have broadly construed the statute to

carry out the intent of Congress.

There can be little doubt that Congress, when it

enacted the RLA, intended to immunize workers from

carrier discrimination because of the employees’ union or

non-union activities. It is respectfully submitted that the

Fourth Circuit’s narrow, literal reading of the statute

frustrates the intent of Congress, while a broader con-

struction furthers the purposes of the Act. The other

protections of the statute (e.g., prohibition against “yel-

low dog” contracts) become meaningless if the carrier is

allowed to pre-screen applicants for employment and

weed out the undesirables. A writ of certiorari should

issue.

A Decision by this Court is Necessary

to Settle an Important Question of Law

The RLA governs the working lives of almost a-mil-

lion workers employed in the railway and airline indus-

tries and, in recent years, both of these industries have

undergone substantial change. For example, in 1978,

Congress passed the Airline Deregulation Act, opening

up the airline industry to intense competition, including

-13-

the entry of many new carriers. The relatively stable

transportation industries of the past are gone. If the

decision of the Fourth Circuit is allowed to stand, the

emerging carriers will be able to discriminate against

prospective workers and deny them their legitimate right

to freedom of association.

During the past one hundred years American workers

struggled against great odds to obtain freedom of associ-

ation (and non-association) in the work place. The deci-

sion of the Fourth Circuit, if allowed to stand, turns

back the clock and provides unscrupulous carriers with a

license to discriminate against workers because of their

prior union or non-union activities. Like racial and sex-

ual discrimination, discrimination based on union or

non-union activities is abhorrent to the American way of

life.

This case offers an excellent vehicle for the Court to

definitively construe the anti-discrimination provisions of

the RLA, thereby ensuring labor peace in the industries

covered bv the Railway Labor Act. A writ of certiorari

should issue.

CONCLUSION

For the reasons set forth above, it is respectfully sub-

mitted that a writ of certiorari should issue to review‘the

judgment and opinion of the Fourth Circuit.

March 28, 1985

-14-

Respectfully submitted,

ROBERT F. GORE

REX H. REED

c/o National Right to Work Legal

Defense Foundation, Inc.

8001 Braddock Road, Suite 600

Springfield, Virginia 22160

HAMILTON HORTON

Horton, Hendrick & Kummer

450 NCNB Plaza

Winston-Salem, North Carolina 27101

Attorneys For Petitioner

APPENDICES

-la-

APPENDIX A

Decision of the

United States Court of Appeals

for the Fourth Circuit

December 28, 1984

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LLOYD LEE NELSON.

Appellant,

v. No. 84-1187

PIEDMONT AVIATION, INC..

Appellee. Argued November |, 1984.

Decided December 28, 1984.

LLOYD LEE NELSON.

Appellee,

ve

No. 84-1190

PIEDMONT AVIATION, INC..

Nee eee”

Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Winston-

Salem. Eugene A. Gordon, District Judge. (C/A 82-821)

Before ERVIN and WILKINSON, Circuit Judges, and

MICHAEL, United States District Judge for the West-

ern District of Virginia, sitting by designation.

-3a-

WILKINSON, Circuit Judge:

Appellant raises the question of whether an applicant

for employment is an “employee” under the Railway

Labor Act. The District Court for the Middle District of

North Carolina held that he is not. Thus, Piedmont Avi-

ation’s alleged refusal to hire appellant because of pres-

ent non-union membership and past non-union activities

did not violate the RLA because that statute imposes no

such restrictions on the right of a carrier to select its own

employees.

Appellant points to nothing in the statutory language

or legislative history of the Railway Labor Act to sup-

port his claim to its protection. He refers us to not a sin-

gle case where a court has interpreted the term “employ-

ee” so expansively. Instead, he candidly invites us to

participate in a creative exercise in statutory redrafts-

manship. We decline that invitation and affirm the deci-

sion of the district court.

Appellant Lloyd Lee Nelson flew as a replacement

pilot for Wien Air Alaska (“Wien”) during a two-year

period when the Air Line Pilots Association (“ALPA”)

was on strike against Wien. Subsequentiy, appellant

sought employment with other American airlines, includ-

ing appellee Piedmont Aviation, Inc. (“Piedmont”). He

was granted an interview by Piedmont but was allegedly

denied employment because the airline feared delays and

maintenance problems if it hired a Wien replacement

pilot. Appellant finally found a position in Saudi Arabia.

-4a-

far from his home and family. He filed this action

against Piedmont under the Railway Labor Act (“RLA”).

45 U.S.C. § 151 et seg. (1982), seeking damages and

injunctive relief. The district court dismissed the action

for lack of subject matter jurisdiction and for failure to

state a claim upon which relief could be granted.

II

Nothing in the statutory language or the legislative his-

tory of the RLA (which extends to common carriers by

air, 45 U.S.C. § 181) supports appellant’s contention that

applicants for employment are covered. The purpose of

the statute is to establish the mechanics for collective

bargaining between interstate carriers and their employ-

ees through freely selected representatives of both par-

ties, Nashville, C. & St. L. Ry. vy. Railway Emplovees

Dept.. 93 F.2d 340 (6th Cir.), cert. denied, 303 U.S. 649

(1937): see also Virginia Ry. Co. v. Svstem Federation

No. 40, 300 U.S. 515 (1937). The statute defines an

“emplovee” in clear language:

The term “employee” as used herein includes every

person in the service of a carrier (subject to its con-

tinuing authority to supervise and direct the manner

of rendition of his service) who performs any work

defined as that of an employee or subordinate in the

orders of the Interstate Commerce Commission .. .

45 U.S.C. § 151 Fifth (emphasis added).

In construing a statute, we must begin with the ordi-

nary meaning of the words used and, absent a clearly

expressed legislative intent to the contrary, regard the

language as conclusive. American Tobacco Co. v. Patter-

-Sa-

son, 456 U.S. 63 (1982); see also United States v. Ameri-

can Trucking Ass'n, Inc., 310 U.S. 534 (1940). Here the

statutory language does not admit of doubt. At the time

of his application to Piedmont, appellant was not “in the

service of a carrier” and did not “perform any work” for

an airline as specified by 45 U.S.C. § 151 Fifth. See

Nashville, C. & St. L. Ry. v. Railway Emplovees Dept..

93 F.2d 340 (6th Cir.), cert. denied, 303 U.S. 649 (1937).

Therefore, appellant was plainly not subject to the pro-

tections of 45 U.S.C. § 151 Fourth, prohibiting an

employer from interfering with an employee’s free choice

of whether or not to join a labor organization. The only

section of the RLA that deals with prospective employ-

ees is 45 U.S.C. § 152 Fifth, prohibiting a carrier from

requiring a person seeking employment to sign any

agreement promising to join or not to join a labor organ-

ization. The presence of this section demonstrates Con-

gress’ ability to cover prospective employees when it

wishes, and appellant makes no claim that Piedmont

attempted to extract any promises from him in violation

of this provision.

There are 1.381 pages of legislative history pertaining

to the Railway Labor Act and its several amendments.

Not one considers the possibility of extending coverage

to discrimination in the hir'ng of employees.’

No case supports appellant’s arguments. The two cases

relied on by him are inapposite. United States v. Ameri-

can Trucking Ass'n, 310 U.S. 534 (1940), does indeed

' Subcommittee on Labor of the Committee on Labor and Pubiic Wel-

fare. U.S. Senate. Legislative History of the Railway Labor Act, as

Amended (1926 through 1966) (1974).

eS ee ee ee

-6a-

stand for the proposition that “employee” is not a word

of art. and. in statutes lacking particularized definition, it

is not regarded by the courts as a word of definite con-

tent. However, where the term “employee” does receive a

particularized definition, the clear language of that defi-

nition must govern. Nashville, C. & St. L. Ry. v. Rail-

way Employees Department, 93 F.2d 340 (6th Cir.), cert.

denied, 303 U.S. 649 (1937), also cited by appellant, does

not expand the meaning of “employee” under the RLA:

there the court speaks of the “particularity” with which

Congress defined the term and proceeds to construe the

phrase “in the service of a carrier” to include furloughed

emplovees who have an obligation to return to work

when called. /d. at 342. Such persons are different from

those. such as appellant. who have never been in the

employ of the carrier.

The statutes with which appellant compares the RLA

are likewise inapposite because in each case Congress

made clear its intent to cover applicants for employment

by specific language referring to discrimination in hiring.

See Nationa! Labor Relations Act, § 8(a), 29 U.S.C.

§ 158(a) (1982);° Federal Labor-Management and Employ-

ee Relations Act § 701, 5 U.S.C. § 7116(a) (1982). The

difference in wording between those statutes and the

RLA makes clear the more limited nature of the latter’s

coverage. While the National Labor Relations Act

(“NLRA”), 29 U.S.C. § 141 ef seqg., § 158(a) (1982), and

the Federal Labor-Management and Employee Relations

Act, 5 U.S.C. § 1701 et seg., § 7116(a) (1982), protect

* The National Labor Relations Act, 29 U.S.C. § 141 ef seq.. specifi-

cally excludes from its coverage employers subject to the RLA. 29

U.S.C. § 151(2).

-Ja-

prospective employees in their spheres of coverage, the

RLA does not.

In some cases, the Supreme Court in interpreting the

Railway Labor Act has borrowed from the NLRA or

from general labor policy. See, e.g., Electrical Workers v.

Foust, 442 U.S. 42 (1979); Brotherhood of Railroad

Trainmen v. Jacksonville Terminal Co., 394 U.S. 369

(1969); Steele v. Louisville & N.R. Co., 323 U.S. 192

(1944). These cases, however, did not involve a conflict

with the plain language of the RLA. Most recently, the

Court’s disallowance of punitive damages in unfair repre-

sentation suits under the RLA, a ruling drawing on

NLRA principles, did not conflict with any wording of

the Railway Labor Act, Electrical Workers vy. Foust,

supra. Indeed, the Court has emphasized that “the Na-

tional Labor Relations Act cannot be imported whole-

sale into the railway labor area” and that “[e]ven rough

analogies must be drawn circumspectly,” Brotherhood of

Railroad Trainmen, supra, 394 U.S. 369, 383, an admo-

nition that may permit borrowing in resolving statutory

ambiguity but proscribes it where one statute contains a

plain provision that the other does not.

We appreciate the fact that appellant’s case may not

be without equities. He alleges retaliation as a result of

his legally conducted activities in flying for an airline

engaged in a sharp labor dispute with the Air Line Pilots

Association. However, Piedmont has done nothing to

violate the RLA in refusing to hire appellant. We decline

to tell a party relying on the plain meaning of legislation

that the statute says something it does not. It is with the

Congress. not the courts, that appellant must press his

-Sa-

case for statutory similarity. The policy expressed by

Congress in other labor statutes with respect to non-

discriminatory hiring is important in permitting workers

to join or not to join unions without fear of compromis-

ing their future employment prospects. However salutary

that policy may be, it is not expressed in the Railway

Labor Act.

Ill

On cross-appeal, Piedmont urges us to award costs

and attorney's fees against the National Right to Work

Legal Defense Foundation. which prosecuted appellant’s

case. The district court found there was insufficient evi-

dence to declare appellant’s claim to be totally frivolous,

unreasonable, or groundless under any statutory author-

ity or to rule that the action was filed in “bad faith”

under Federal! Rule of Civil Procedure 11. We affirm.

Attorney’s fees may be awarded against a losing party

whe has “acted in bad faith, vexatiously, wantonly, or

for oppressive reasons.” A/veska Pipeline Service Co. v.

‘Wilderness Society, 421 U.S. 240, 258-59 (1975), a crite-

rion that has come to be know as the “bad faith excep-

tion,” and that may be applied to counsel as well as to

litigants. Roadway Express, Inc. v. Piper, 447 U.S. 752,

756 (1980). Appellant and his counsel were relying upon

anti-discrimination provisions in hiring in other labor

laws that were not dissimilar in purpose and scope to the

RLA. Thus we cannot say the analogies were drawn with

no “good faith argument for the extension, modification,

or reversal of existing law.” Texror v. Bd. of Regents of

North Ill. University, 87 F.R.D. 751, 754 (N.D. Ill. 1980),

-9a-

citing DR _ 7-102(A)(2) of the Code of Professional!

Responsibility. This language has been incorporated into

the 1983 amendment to Rule 11. While the amendment

seeks to “reduce the reluctance of courts to impese sanc-

tions” for abuse of process,’ we believe that the district

court in this case, which was able to judge first hand

counsel’s conduct in the course of the action, should be

accorded deference in its judgment. See Nemeroff v.

Abelson, 704 F.2d 652, 656 (2d Cir. 1983).

We also decline to award Piedmont damages or costs

under the “frivolous appeal” provision of Rule 38 of the

Federal Rules of Appellate Procedure.’ The single issue

posed by appellant was one of statutory construction. As

noted, the National Labor Relations Act, 29 U.S.C.

§ 141 et seq. (1982), and the Federal Labor-Management

and Employee Relations Act, 5 U.S.C. § 7101 er seq.

(1982) both contain clauses prohibiting discrimination in

hiring based upon choices or activities relating to union

membership. Appellant’s attempt to extend the coverage

of the RLA by analogy to these statutes was not frivo-

lous in a case of first impression.

The judgment of the district court is

AFFIRMED.

* J. Moore, Federal Practice § 11.01{4]. citing Fed. R. Civ. P. advisory

committee note (1984).

* FRAP 38 provides: “If a court of appeals shall determine that an

appeal is frivolous, it may award just damages and single or double

cosis to the appellee.”

-l0a-

APPENDIX B

Memorandum Opinion and Judgment

of the United States District Court

for the Middle District of North Carolina

January 12, 1984

IN THE

UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF NORTH CAROLINA

WINSTON-SALEM DIVISION

LLOYD LEE NELSON, )

Plaintiff )

r ) No, C-82-821-WS

PIEDMONT AVIATION, INC..

Defendant )

MEMORANDUM OPINION

GORDON, Senior District Judge

Introduction

This matter is before the Court initially on defendant

Piedmont’s motions to dismiss the complaint on the

grounds (1) that the Court lacks subject matter jurisdic-

tion and (2) that the complaint fails to state a claim

upon which relief can be granted. Defendant Piedmont

further moves to strike paragraphs 8, 9, 11, 12, 18, 19,

20, 22. 23 and 27 of the complaint as being immaterial,

impertinent and irrelevant. Defendant Piedmont lastly

moves that costs be taxed against the plaintiff, and that

Piedmont recover attorney’s fees from the National

Right to Work Lega! Defense Foundation, Inc. Plain-

tiff thereafter filed a response, and Piedmont filed a

reply with a supplement update. Ora! arguments on

the motions were presented on November 22, 1983 in

-|2a-

Winston-Salem, North Carolina.

I. Factual Background

A brief summary of the facts reveals the following:

The parties include Piedmont Aviation, Inc. (“Pied-

mont”), an alleged “carrier” within the meaning of § 151,

First, of the Railway Labor Act, and the plaintiff, a res-

ident of Texas who sought and was denied employment

as an air line pilot by Piedmont A!though not parties to

this suit, the complaint also incorporates allegations

against the Air Lines Pilot’s [sic] Association Interna-

tional (*“ALPA”), a labor organization which is the col-

lective bargaining representative of Piedmont’s air line

pilots, and Captain Clarence E. Koone, a member of the

ALPA and a Piedmont pilot. The allegations against

ALPA and Captain Koone are the subject of the plain-

tiffs motion to strike.

In May 1977, ALPA commenced a labor strike against

Wien Air Alaska (“Wien”), a regional air line, and most

of the Wien air line pilots went on strike. Wien attempt-

ed to continue flight operations, however, and in the

years 1978 and 1979 the plaintiff was hired as a replace-

ment pilot for Wien during the Wien ALPA strike. The

strike was settled in January 1979 after the President of

the United States intervened, and thereafter the plainuff

sought employment as a pilot with other air lines, incjud-

ing Piedmont . The plaintiff was granted an interview at

' 45 U.S.C. § ISI. First. In actuality, however, Piedmont is net a car-

rier within the meaning of Section 151. First. but is a “common carrier

by air” as defined by 45 U.S.C. § 181. For the purposes of this Memo-

randum Opinion. however, such distinctions are not dispositive of the

issues.

— a

-13a-

Piedmont’s corporate office in Winston-Salem. North

Carolina on July 31, 1979. The plaintiff arrived in

Greensboro. North Carolina on July 30, 1979 for his job

interview the next day, and was escorted by Captain

Clarence E. Koone to Winston-Salem. During the limou-

sine ride to their destination. the plaintiff engaged in

conversation with Captain Koone concerning his replace-

ment pilot duties during the Wien/ ALPA strike. On the

next day, the plaintiff was interviewed for an air line

pilot position by Mr. Lester Ray Welch, Jr., Piedmont’s

Director of Personnel and Administration, and was

informed that Piedmont would not be able to offer him

employment. During a subsequent telephone conversa-

tion with Mr. Welch, the plaintiff was again informed

that Piedmont would not be able to hire him.

The complaint alleges that Piedmont’s failure to hire

the plaintiff violated § 152, Fourth, of the Railway La-

bor Act (45 U.S.C. § 152, Fourth), since the refusal to

hire the plaintiff was “solely because plaintiff was not a

member of ALPA and had flown for Wien during a

period of time when ALPA was on strike against the air

line.” See complaint, para. 29. Jurisdiction is premised

on 28 U.S.C. § 1331 (federal jurisdiction), 28 U.S.C.

§ 1337 (Congressional act regulating commerce), and 28

U.S.C. §§ 2201 and 2202 (declaratory judgment). Plain-

tiff seeks a declaratory judgment, a permanent injunc-

tion, attorney’s fees and costs, and a jury trial on all

issues triable by a jury.

II. Motions to Dismiss

Section 152. Fourth, of the Railway Labor Act (“RLA”)

-14a-

provides as follows:

Fm*yloyees shall have the right to organize and

bargain collectively through representatives of their

own choosing. The majority of any craft or class of

employees shali have the right to determine who

shall be the representative of the craft or class for

the purposes of this chapter. No carrier, its officers.

or agents shall deny or in any way question the

right of its employees to join. organize, or assist in

organizing the labor organization of their choice,

and it shal] be unlawful for any carrier to interfere

in any way with the organization of its employees,

or to use the funds of the carrier in maintaining or

assisting or contributing to any labor organization,

labor representative, or other agency of collective

bargaining, or in performing any work therefor, or

to influence or coerce employees in any effort to

induce them to join or remain or not to join or

remain members of any labor organization. or to

deduct from the wages of employees any dues, fees.

assessments, or other contributions payable to labor

organizations, or to collect or to assist in the collec-

tion of any such dues, fees, assessments, or other

contributions: Provided, That nothing in this chap-

ter shall be construed to prohibit a carrier from

permitting an employee, individually, or local repre-

sentatives of employees from conferring with man-

agement during working hours without loss of time,

or to prohibit a carrier from furnishing free trans-

portation to its employees while engaged in the bus-

iness of a labor organization.

The plaintiff contends that Piedmont’s failure to hire

him constituted a violation of § 152 Fourth, of the RLA.

-|5a-

Piedmont’s motion to dismiss counters, first, that this

Court lacks subject matter jurisdiction, because the

plaintiff as a mere applicant for employment has no

rights under the RLA, which Act only covers carriers

and their “employees.” In addition, Piedmont also argues

that § 152, Fourth, contains no restrictions upon a carri-

er’s rights to hire its employees nor confers any right on

the plaintiff to be hired. Accordingly, it is contended, the

complaint fails to state a claim upon which relief can be

granted as there is no allegation that Piedmont has

deniec the plaintiff any right conferred on him by the

RLA.

A review of the specific language. purpose and legisla-

tive history of § 152, Fourth, of the RLA reveals that

Piedmont’s motions to dismiss should be granted. See

American Tobacco Co. v. Patterson, U.S.

102 S.Ct. 1534 (1982) (which holds that statutory con-

struction must necessarily be gleaned from the statutory

language and legislative history of the Act of Congress in

o.stion). At the outset, the unambiguous language of

§ 152, Fourth. deals only with (1) the right of “/e/m-

ployees . . . to organize and bargain collectively through

representatives of their own choosing,” and with (2) the

duty of “carriers, its officers or agents” not to “deny or

im any way question the right of its employees to join,

organize or assist in organizing the labor organization of

their choice.” 45 U.S.C. § 152, Fourth (emphasis added).

Other than the mere fact that § 152. Fourth, applies to

carriers and their “employees” as defined in § 151, Fifth,

(45 U.S.C. § 151, Fifth), or carriers by air and their

“employees” as defined in § 181 (45 U.S.C. § 181), no

statutory language is mentioned by the plaintiff which

-16a-

would extend coverage of § 152, Fourth, of the RLA to

include “applicants for employment.” Thus, nothing in

the plain meaning of § 152, Fourth, can be construed to

make the provisions of the RLA applicable to a mere

applicant for employment as opposed to an “employee,”

as defined under the Act.

Moreover, the plaintiff gains no support in the pur-

pose or legislative history of § 152, Fourth, of the RLA

for his proposition that non-employees are provided

rights under the Act in regards to hiring by carriers. Sec-

tion 15la, which amended the RLA in 1934, declares

that the purposes of the RLA, including § 152, Fourth,

are, among others,

(1) [‘t]o avoid any interruption to commerce or to

the operation of any carrier engaged therein; (2) to

forbid any limitation upon freedom of association

among employees or any denial, as a condition of

employment or otherwise, of the right of emplovees

to join a labor organization, . . . [and, (3)] to pro-

vide for the prompt and orderly settlement of all

disputes concerning rates of pay, rules or working

conditions. ...

45 U.S.C. § 1Sla (emphasis added). The provisions of

the Act and its purpose, therefore, establish that the

RLA was only meant to cover carriers and their

“employees,” and “labor organizations” composed of car-

rier’s employees, see Virginia Railwav Co. v. Svstem

Federation No. 40, 300 U.S. 515 (1937). and the purpose

of the Act does not encompass anv restriction upon or

regulation of a carrier’s right to select its emplovees.

Likewise, there is nothing in the legislative history of the

17:

-17a-

RLA which would support the plaintiff's claim that

Piedmont’s failure to employ him violates § 152, Fourth.

In surveying the intent of Congress “to provide for the

prompt disposition of disputes between carriers and their

emplovees....” H. R. REP. No. 606, 69th Cong., Ist

Sess. 54 (1926) (emphasis added), the debates on the

original Act in 1926,° and the amendments of 1934,’

1936.° and 1951,° reveal nothing suggesting any intent of

Congress to restrict or regulate any rights of an applicant

seeking employment with a carrier or carrier by air.

Plaintiff's attempts to characterize the statutory lan-

guage and legislative intent of § 152, Fourth, of the RLA

as being “broad enough” to impose a duty on carriers

not to discriminate against applicants for hire on the

basis of union or non-union membership or activity only

serve to skew the issue at hand. See Plaintiff's Reponse,

p. 2. The sole issue is whether or not the plaintiff, as an

applicant for hire, can be considered an “employee”

within the plain meaning of the Act, and the plaintiff

finds no statutory or case law to support his contention

that an applicant for employment is the same as an

“employee” under the Act. See, e.g., 45 U.S.C. § 181.

The RLA simply does not create as a protected class

persons seeking employment by carriers. The only pro-

* 44 Stat. 577-78: Public Law No. 69-257 (May 20, 1926). See H. R.

REP. No. 606. 69th Cong., Ist Sess. 54 (1926).

* 48 Stat. 1185-1197: Public Law No. 73-442 (June 21, 1934). See H. R.

REP. No. 9861, 73rd Cong., 2d Sess. 1008 (1934). See also House

Comm. on Interstate and Foreign Commerce Report No. 1944, 73rd

Cong., 2d Sess. 919 (1934).

* 49 Stat. 1189; Public Law No. 74-487 (April 10, 1936}. See CONG.

REC., 74th Cong., 2d Sess. 5038 (1936).

* 64 Stat. 1238-1239; Public Law No. 81-914 (January 10, 1951). See

CONG. REC.. 81st Cong., 2d Sess. 17.046 (1951).

-18a-

tection afforded by the RLA to persons seeking such

employment is afforded to all persons seeking such

employment, whether union or non-union. No individual

seeking employment by a carrier has to give up the right

to join a union as a condition of employment, 45 U.S.C.

§ 15la, or has to promise to join or not to join a union,

45 U.S.C. § 152, Fifth. Otherwise, the RLA imposes no

restraint upon the rights of carriers to select their

employees, and, thus, this Court finds no support for the

plaintiff's tenuous claim that Piedmont’s failure to

employ him violated § 152, Fourth, or any other provi-

sion, of the RLA. Accordingly, the Court concludes sub-

ject) matter jurisdiction is lacking because the plaintiff, as

a non-employee, has no perceivable rights under § 152,

Fourth, of the RLA, which Act covers only carriers and

their “employees.”

Despite the fact that there is no existing statutory or

case law support for a finding that an applicant for hire

can be considered as an “employee” under the Act, the

plaintiff further urges this Court to find, as a general

policy matter, that Piedmont’s decision to refuse to hire

him because of his past non-union activities resulted in a

“direct, coercive and influencing impact on the minority

employees of Piedmont Airlines.” Plaintiff's Response, at

p. 9. In support of such an argument, the plaintiff cites

one Circuit Court of Appeals’ decision stating in dictum

that the RLA could apply if an employer’s policy regard-

ing the selection of employees were to impair “the collec-

tive bargaining process,” see Beeler v. Chicago, R. I. and

P. Rv. Co., 169 F.2d 557 (10th Cir. 1948), and attempts

to draw an analogy to the National Labor Relations

Act’s statutory scheme of protecting non-employee super-

-19a-

visors when an employer's conduct directed at the super-

visor has a direct impact on the organizational rights of

employees. Cf. 29 U.S.C. § et seq. (1976).

However, the plaintiff makes no allegations which tend

to show how Piedmont’s employee selection process

actually has any impact on the collective bargaining pro-

cess or the organizational rights of employees and unions

at Piedmont. Furthermore, the complaint contains no

allegations that Piedmont ever attempted to influence or

coerce other employees regarding their decisions to join

or not to join a union through the emplovee selection

process. Even if such contentions were alleged, the Court

doubts such a claim could be considered without includ-

ing such necessary and interested parties as the union

and other employees so affected. Therefore, in this

regard, the plaintiff's allegations that Piedmont’s failure

to hire him violated § 152, Fourth, of the RLA fails to

state a proper claim upon which relief can be granted.

Accordingly, for the foregoing reasons, the Court con-

cludes that the defendant Piedmont’s motions to dismiss

for lack of subject matter jurisdiction and for failure to

state a claim upon which relief can be granted should be

ALLOWED.

III. Other Motions

Piedmont further moves pursuant to Rule 12(f), Fed.

R. Civ. P.. to strike certain paragraphs of the complaint

as being immaterial, impertinent and irrelevant. The mat-

tiers which Piedmont moves to strike essentially relate to

allegations regarding ALPA and a Piedmont/ALPA

-20a-

pilot, Captain Clarence E. Koone, neither of whom is a

party to this action. The plaintiff counters that the chal-

lenged paragraphs relate to the factual and legal theories

of the plaintiff's case. However, as this Court has now

ruled that the plaintiff finds no support for his claim that

Piedmont’s failure to hire him violated § 152. Fourth, of

the RLA, Piedmont’s motion to strike is thereby ren-

dered moot, and, therefore, must be DENIED.

Piedmont lastly moves that this Court tax the costs of

this action against the plaintiff, and award them attor-

ney’s fees from the National Right to Work Legz!

Defense Foundation, Inc. Although plaintiff's counsel

concedes that this case of first impression was filed at the

outside limit of the statute of limitations “in the hope

that a case of some precendential value relative to this

litigation would have been decided,” see Plaintiff's

Response, at pp. 14-15, the Court, nevertheless, does not

find sufficient evidence showing that plaintiff's claim is

totally frivolous, unreasonable or groundless under any

Statutory authority, see Christianburg Garment Co. v.

EEOC, 434 U.S. 412, 422 (1978), or that it was filed

under the “bad-faith exception.” See Aleyska [sic] Pipe-

line Service Co. v. Wilderness Society, 421 U.S. 240,

258059 [sic] (1975); Roadway Express, Inc. v. Piper, 447

U.S. 752, 766 (1980). Accordingly, Piedmont’s motion

for attorney’s fees is also DENIED.

CONCLUSION

In summary, therefore, Piedmont’s motions to dismiss

for lack of subject matter jurisdiction and for failure to

state a claim upon which relief can be granted wiil be

-2la-

ALLOWED, Piedmont’s motion to strike will be DE-

NIED as being moot, Piedmont’s motion for costs and

attorney's fees will be DENIED, and this action will be

dismissed with prejudice in a separate Order filed con-

temporaneously with this Memorandum Opinion.

s/ Eugene A. Gordon

Eugene A. Gordon

United States District Judge

January 12, 1984

-22a-

IN THE

UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF NORTH CAROLINA

WINSTON-SALEM DIVISION

LLOYD LEE NELSON.

Plaintiff

No. C-82-821-WS

Vv.

PIEDMONT AVIATION, INC.,

Defendant

ed

JUDGMENT

For the reasons stated in a Memorandum Opinion

filed contemporaneously herewith, it is

ORDERED that the defendant’s motions to dismiss

are granted: the defendant’s motion to strike is denied as

being moot; the defendant’s motion for costs and attor-

ney’s fees is denied; and the action is dismissed with

prejudice.

s Eugene A. Gordon

Eugene A. Gordon

United States District Judge

lanuary 12. 1984