Petition for Writ of Certiorari — Aloha Airlines, Inc. v. International Ass'n of Machinists & Aerospace Workers

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__, Supreme Court, U.S,

86-252 I FILED

AUG 19 1986

No . JOSEPH é age.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

ALOHA AIRLINES, INC.

Petitioner,

Vv.

INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AEROSPACE

WORKERS, AFL-CIO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

TORKILDSON, KATZ, * ROBERT S. KATZ

JOSSEM, FONSECA RICHARD M. RAND

& MOORE 700 Bishop Street

Amfac Building

Attorneys at Law 15th Floor

Honolulu, HI 96813

(808) 521-1051

Attorneys for

Petitioner

* Counsel of Record

QUESTION PRESENTED

Whether retroactive

application of this Court's decision

in Del Costello v. Teamsters, 462 U.S.

151 (1983) establishing a 6-month

statute of limitations to a case

arising under the Railway Labor Act,

45 U.S.C. §151 et seq. is precluded by

this Court's decision in Chevron Oil

Company v. Huson, 404 U.S. 97 (1971).

STATEMENT REQUIRED BY RULE 28.1

Aloha Airlines, Inc. is a

wholly-owned subsidiary of Aloha,

Inc. Aloha, Inc. has no parent

company, and neither has any other

wholly-owned subsidiaries nor

ownership nor interests in any other

company.

= ee

\ TABLE OF CONTENTS

Opinions Below ~~ .....ee. 1

surieesetiagn li “‘;ti*té‘“‘(( HO 2

Statutory Provision ........ 3

Statement of the Case _........ 3

Reasons For Granting

-. <4, nh rir ee eae 16

I. The Ninth Circuit's

Decision Conflicts

With This Court's

Decision In DelCostello

And Decisions Of Other

Courts of Appeals _......... 16

A. This Court Applied

Delcostello

Retroactively = ...nsvsves 16

B. The Ninth Circuit

Stands Alone In

Refusing To Apply

DelCostello Retroactively

TO BOF BM CEBIM «6 6 oie is 24

II. This Court Must Finally

Address An Important

Issue of Federal Labor

PeaaGy t—i(<“‘“‘™OSCSC; #Cw 33

COomezeeeem RROD 36

-$ii-

TABLE OF AUTHORITIES

Cases

Barina v. Gulf Trading and

Transportation Company, 726

F.2d 560, (9th Cir, 1984)......

Barnett v. United Airlines,

Inc., 738 F.2d 358 (10th

Cir. 1984), cert. denied

U.S. » nee &-GCe. S34,

83 L.Ed.2d 703 (1984) .......

Brotherhood of Locomotive

Engineers v. Atchinson,

Topeka & Santa Fe Railway

Company, 768 F.2d 914

(Fem Gee. S0GSP ~— — weaneles

Byrne v. Buffalo Creek Railway

Company, 765 F.2d 364 (2nd Cir.

ee | eee he Pr ee eg

Chevron Oil Company v. Huson,

404 U.S. 97, 92 &.Ct. 349,

OO tncBe. 20 BOG CEPTIP vce us

Cypriano v. City of Houma,

ava U8. fet, BF BB: Et.

1897, 23 L.Ed.2d 647

| re

-iv—

ll,

21,

25,

29,

Cases Page

DelCostello v. International

Brotherhood of Teamsters,

462 U.@. O24, 198 &-.Ct.

2281, 76 L.Ed.2d 476 (1983) a ae

10, ll

Lo, 26

18, 20

yy Pe

24, 25

a6, 27

28, 29

aes aa

nas 2a

24, 35

2, oF

Edwards v. Teamsters Local 36,

719 F.2d 1036 (9th Cir. 1983),

cert. denied 465 U.S. 1102,

104 S.Ct. 1599, 80 L.Ed.2d 130

|) Lay 22

Glover v. United Grocers,

Inc., 746 F.2d 1380 (9th

Cir. 1984), cert. denied 105 S.Ct.

2357, 86 L.Ed.2d 258 (1985) as ae

Goins v. Teamsters Local 639,

598 F.Supp. 1151 (D.C. 1984) ..28

Graves v. Smith Transfer Corp.,

763 F.2d 819 (lst Cir. 1984) wae

Greyhound Lines, Inc. v.

Wilhite, Um. :

106 S.Ct. 280, 88 L.Ed.2d 244

coum lt—“—iti‘“<‘ SW” 33

—-V—

Cases

Hafer v. Airline Pilots

Association, 525 F.Supp.

874

(D.Hawaii 1981), affirmed without

opinion 698 F.2d 1230 (9th Cir.

lf i ee ee Pee

Hunt v. Missouri Railroad

729 F.2d 578 (8th Cir. 19

IAM v. Aloha Airlines, In

84)

C.,

776 F.2d 812 (9th Cir. 19

Jones v. Consolidated

Freightways Corp. of

Delaware, 776 F.2d 1458

(10th Cir. 1985)

Landahl v. PPG Industries

746 F.2d 1312 (7th Cir.

Re wee eee

Lincoln v. District Nine,

85)

International Association of

Machinists, 723 F.2d 627

(8th Cir. 1983)

Macon v. ITT Continental

Baking Co., 779 F.2d 1166

(6th Cir. 1985)

Miller v. Jeep Corp., 774 F.

111 (6th Cir. 1985)

oe oe & 2S 2 8

Murray v. Branch Motor Express

Company, 723 F.2d 1146 (4th Cir.

1983), cert. denied,

» 105 §.Ct. 292, 83 L.Ed.2d

28 (1984)

-vi-

Page

.27

7, 22

14, 27

14, 26

Cases Page

Perez v. Dana Corp., Parish

Frame Division, 718 F.2d 581

t g-: ie. : er Pees 25

Robinson v. Pan American World

Airways, Inc., 777 F.2d 84

eee. see = =)—<—~—:*:*C rs ew so, 33

Rogers v. Lockheed Georgia,

720 F.2d 1248 (llth Cir.

1983), cert. denied U.S.

—. 2 ae. ee. + $

Es © ieee). | ) rere 27

Saville v. Westinghouse

Electric Corp., U.S.

___, 106 S.Ct. 280, 88

Se eB.) 33

Sine v. Local 992, International

Brotherhood of Teamsters, 730

Piae S668 t4tm Cif. 1964) ....00. 26

Sisco v. Consolidated Rail

Corp., 7132 F.20 1168

Cr. ee = § see vsenss S, on

Sisco v. Conrail, 732 F.2d

hE We a ee | ee

Smith v. General Motors

Corp., 747 F.2d 372 (6th

nee ia 6 = ff ke eke 15, 24

-vii-

Cases

Triplett v. Brotherhood of

Railway, Airline and

Steamship Clerks, 763 F.2d

625 (4th Cir. 1985) .....

United Independent Flight

Officers, Inc. v. United

Airlines, Inc., 756 F.2d

baee (vem Cart. 2965) #3 «2.

United Parcel Service,

Inc. v. Mitchell, 451

U.S. 56, 67 L.Ed.2d 732,

101 8.Ct. 3959 (1981) «.«....

United Steelworkers of

America v. Flowers, 462

U.Be BBhe £090 Ost. Bae,

76 L.Ed.2d 476 (1983) ......

Welyczko v. U.S. Air,

Inc., 733 F.2d 239 (2nd

Cir. 1984), cert. denied

U.S. , 105 §.Ct. 512,

83 L.Ed.2d 402 (1984) __......

West v. Conrail, 780 F.2d 361

(3rd Cir. 1985), cert. granted,

U.S. , 54 U.S.L.W. 3859

(sume 30, Seeee jj ewer

Zemonick v. Consolidation

Coal Company, 762 F.2d 381

(Stn Cig. 8905S) j= = § § eucve

-viii-

Page

14, 25

26, 31

18, 20

iS, 2a

OTHER AUTHORITIES

Page

Statutes

UNITED STATES CODE

Title 28

SL 2

Title 29

eeeteeees BROCE ICS) ns snnes 30

es) ee : @

5, 9

is, 17

28, 34

Te a ot. ere 17

Title 45

45 U.S.C. §151

LT eae 30, 31

| arrears 4, 5

Ce Po ttt 7

ES rere 7

HAWAII REVISED STATUTES

Bection 657-11 ccecscece +, 32

~ix-

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

ALOHA AIRLINES, INC.

Petitioner,

Vv.

INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AEROSPACE

WORKERS, AFL-CIO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

OPINIONS BELOW

The opinion of the Court of

Appeals is reported at 781 F.2d 1400

(9th Cir. 1986), and is reproduced in

the Appendix to this Petition

(lla-68a). The opinion of the

District Court is unreported and is

reproduced in the Appendix (7la-85a).

JURISDICTION

The judgment of the Court of

Appeals was entered on February 6,

1986. Petitioner filed a timely

petition for rehearing with a

suggestion for rehearing en banc on

February 20, 1986. The petition for

rehearing was denied by order dated

May 21, 1986, in which the Court of

Appeals issued an amended opinion.

The Court of Appeals' order is

reproduced in the Appendix (la-10a).

The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. §1254(1).

STATUTORY PROVISION

Section 10(b) of the National Labor

Relations Act, 29 U.S.C. §160(b)

provides in pertinent part:

Provided, that no

complaint shall issue based

upon any unfair labor

practice occurring more than

six months prior to the

filing of the charge with the

Board and the service of a

copy thereof upon the person

against whom such charge is

made, unless the person

aggrieved thereby was

prevented from filing such

charge by reason of service

in the armed forces, in which

event the six-month period

shall be computed from the

day of his discharge.

29 U.S.C. §160(b).

STATEMENT OF THE CASE

“

This case presents an issue

which has split the Courts of Appeals:

Whether to give retroactive effect to

this Court's decision in

-3-

aly

DelCostello v. International

Brotherhood c. Teamsters, 462 U.S.

151, 103 S.Ct. 2281, 76 L.Ed.2d 476

(1983). Although this case arises

under the Railway Labor Act ("RLA")

and not the National Labor Relations

Act ("NLRA") this is a difference

without a distinction for both

applying the 6-month statute of

limitations.contained in Section 10(b)

of the NLRA, 29 U.S.C. §160(b) and for

doing so retroactively. Since the RLA

does not contain its own statute of

limitations for statutory

violations,—’” the federal interest

_1/ The RLA does contain a statute of

limitations for actions brought to

challenge an award of a System Board

of Adjustment, 45 U.S.C. §153 (First)

(r). The court in this case rejected

its applicability to a action brought

alleging contractual and statutory

violations. (42a). Other Courts of

-4-

in uniformity has led to the adoption

of the 6-month statute of limitations

in Section 10(b) of the NLRA for both

duty of fair representation actions

and actions alleging other statutory

breaches. The refusal of the Ninth

Circuit to apply its decision in this

case retroactively graphically

conflicts with the decisions of the

Second and Seventh Circuits, and is a

further illustration of the conflict

between the Ninth Circuit and other

Courts of Appeals over the retroactive

application of DelCostello.

_1/ (Cont'd)

Appeals have rejected the 2-year

statute of limitations of 45 U.S.C.

§153 (First) (r) to breach of duty

fair representation actions under the

RLA, Sisco v. Consolidated Rail Corp.,

732 F.2d 1188 (3d Cir. 1984).

-5-

‘ AS NR aN PAN INTL Sb Ea be it Wain

On March 9, 1984 the IAM

filed this action in the United States

District Court for the District of

Hawaii seeking declaratory and

injunctive relief, and damages for

Aloha's alleged breach of a collective

bargaining agreement and violations of

the RLA and an order compelling

arbitration of alleged breaches of the

contract. Aloha promptly filed a

motion to dismiss and for sanctions

contending alternatively that

dismissal of the IAM's petition to

compel arbitration in a prior case

precluded the IAM from using that

Claim and other claims which could

have joined with it,—*” or, in the

_2/ The prior action was brought by

the IAM to compel Aloha to arbitrate a

grievance it had filed over Aloha's

refusal to alter rules, rates of pay

-6-

AAATED GR BAPE Wea re

alternative, that the l-year statute

of limitations in H.R.S. Section

657-11—*” rendered the IAM's action

_2/ (Cont'd) e

and working conditions during the

status quo period mandated by

Sections 5 and 6 of the RLA, 45 U.S.C.

§155, 156. IAM v. Aloha Airlines,

Inc., 776 F.2d 812 (9th Cir. 1985).

The Ninth Circuit held that since the

issue presently was purely statutory,

exclusive jurisdiction over the IAM's

claims rested with the federal courts.

_3/ H.R.S. §657-11 Recoveries

authorized by federal statute.

Whenever any federal statute

provides for an imposition of a

Civil penalty or liquidated

damages or imposes a new liability

or enlarges any existing liability

and the statute does not specify

the period within which suit to

recover the penalty, liquidated

damages, or any sum arising out of

any new or enlarged liability may

be brought, the suit, if brought

in a state court, shall be

commenced within one year from the

date the cause of action arises or

be thereafter barred.

Ai RNS bins Meal Sa

Se ee

untimely since it had been commenced

more than one year after March l,

1983, the date Aloha believed it

accrued. The District Court treated

Aloha's motion as a motion for summary

judgment and dismissed the action on

the grounds of res judicata, and did

not breach the statute of limitations

issue.—*” The Ninth Circuit

affirmed in part and reversed in part

the District Court's grant of summary

judgment, finding only that part of .

the IAM's second action which sought

an order compelling arbitration

precluded by the doctrine of res

judicata, but holding that the IAM's

_4/ The District Court's opinion is

not reported and is reprinted in the

Appendix at 69a-83a.

-Z-

other claims could not have been

raised in the prior action and

therefore were not barred. (23a-32a)

The court then addressed the

statute of limitations issue, finding

that the RLA did not contain its own

statute of limitations for actions

alleging a breach of a collective

bargaining agreement, and statutory

violations, and that normally the most

analogous state statute of limitations

would be borrowed. Acknowledging that

every Circuit which had addressed the

issue had found that the federal

limitations period in Section 10(b) of

the NLRA, 29 U.S.C. §160(b) applied

"with equal force" to actions brought

under the RLA, the Ninth Circuit held

that the IAM’s action was governed by

a 6-month statute of limitations

~9-

(45a). The Ninth Circuit found that

the two other Circuits to address the

specific issue in cases not alleging a

breach of the duty of fair

representation had agreed that the

10(b) limitations period governed.

(45a-47a) .—*”

Although the court adopted

the reasoning of DelCostello to an

action arising under the RLA, it

refused to apply its holding to

extinguish the IAM's claims. Despite

the fact that the Complaint in this

_5/ This conclusion had been reached

by the Seventh Circuit in Brotherhood

of Locomotive Engineers v. Atchinson,

Topeka & Santa Fe Railroad Company,

768 F.2d 914 (7th Cir. 1985) and by

the Second Circuit in Robinson v. Pan

American World Airways, Inc., 777 F.2d

84 (2nd Cir. 1985).

-10-

' ¢aas

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pea virs

at aa

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—

Pi;

4ety

bean?

a -

ess

case had been filed on March 9, 1984,

nine months after DelCostelilo was

decided by this Court, the Ninth

Circuit consistent with earlier

decisions refused to apply its

decision retroactively.—*” The

Ninth Circuit relied upon this Court's

decision in Chevron Oil Company v.

Huson, 404 U.S. 97, 92 S.Ct. 349, 30

L.Ed.2d 296 (1971), as mandating an

analysis of the three factors set

forth therein. Conceding that

retroactivity would promote the prompt

resolution of labor disputes, the

Ninth Circuit found that factor

_6/ In Edwards v. Teamsters Local

Union No. 36, 719 F.2d 1036 (9th Cir.

1983), cert. denied, 465 U.S. 1102,

104 S.Ct. 1599, 80 L.Ed.2d 130 (1984),

the Court of Appeals had refused to

apply the holding of DelCostello

retroactively.

-ll-

outweighed by the fact that its

decision was establishing a new

principle of law, and would produce

inequitable results. (5la-52a).

The Ninth Circuit then

proceeded to apply what it viewed as

the most analogous state statute of

limitations, that contained in H.R.S.

Section 657-11—*” and found that

although the IAM's cause of action

accrued on March 1, 1983, the date on

which the collective bargaining

“ it was

agreements terminated,—

equitably tolled until June 24, 1983,

the date on which Aloha notified

_7/ See n. 3, supra.

_8/ International Association of

Machinists v. Aloha Airlines, Inc.,

776 F.2d 812, 816 (9th Cir. 1985).

—-12-

Keisha Resapaatae iets wes

notified the IAM that it would refuse

to proceed to arbitration. (61la-62a)

The court therefore reversed the

district court's grant of summary

judgment and ordered the case to

proceed on the merits.

Since this Court announced

its decision in DelCostello, the

majority of the Courts of Appeals have

held that it should be applied

retroactively. The Ninth Circuit has

consistently refused to apply

DelCostello retroactively where the

effect would be to shorten the

applicable statute of limitations.—”

_9/ The Ninth Circuit has however

applied DelCostello retroactively

where the effect is to lengthen the

applicable statute of limitations.

Glover v. United Grocers, Inc., 746

F.2d 1380 (9th Cir. 1984), cert.

-13-

On, aia nlaahonees

The Ninth Circuit's opinion clearly

conflicts with this Court's decision

in DelCostello where it applied its

ruling retroactively to extinguish one

of the claims before it, and decisions

by the First, Second, Third, Fifth,

Sixth, Seventh, Eighth and Eleventh

Circuits.+°” Exacerbating the

_9/ (Cont'd)

denied U.S. , a8 &.Ct. 2357,

86 L.Ed.2d 258 (1985).

19/ The Tenth Circuit in Jones v.

Consolidated Freightways Corp. of

Delaware, 776 F.2d 1458 (10th Cir.

1985) refused to apply DelCostello

retroactively although it had already

done so in Barnett v. United Airlines,

ine... tao £.aG S50 (i0th Cir. 19864),

cert. denied, wee. — _ , 105 &.Ct.

594, 93 L.Ed.2d 703 (1984). The

Fourth Circuit has also been

inconsistent in its retroactive

application of DelCostello. Compare

Triplett v. Brotherhood of Railway,

Airline and Steamship Clerks, 763 F.2d

625 (4th Cir. 1985) (refusing to apply

DelCostello retroactively) with

Murray v. Branch Motor Express

Company, 723 F.2d 1146 (4th Cir.

—-14-

conflict is the fact that the Sixth

Circuit and the Second Circuit, in

most cases, have rejected the need to

apply the factors set forth in this

Court's decision in Chevron Oil

Company v. Huson, supra, in

determining whether to apply

DelCostello retroactively.+4+’ This

10/ (Cont'd)

1983), cert. denied, v.6. ., 105

S.Ct. 292, 83 L.Ed.2d 228 (1984)

(applying DelCostello retroactively).

1l/ The Sixth Circuit has adhered to

its opinion in Smith v. General Motors

Corp., 747 F.2d 372 (6th Cir. 1984)

(en banc); e.g. Miller v. Jeep Corp.,

774 F.2d 111 (6th Cir. 1985). The

Second Circuit originally rejected the

need to discuss Huson in Welyczko v.

U.S. Aare, Ine., se Fee S29 (2ee8 Cir.

1984), cert. denied - a. |

S.Ct. 312, 83 L.86.28@ 662 (1964), But

has recognized an "exception" in

Byrne v. Buffalo Creek Railroad

Company, 765 F.2d 364 (2nd Cir. 1985)

for cases where there has been a

decision on the merits.

-15-

conflict will remain unresolved and

defeat one of the policies

underpinning this Court's decision in

DelCostello -- uniformity -- until it

is addressed by this Court. Moreover,

the fact that the Courts of Appeals

themselves have been internally

inconsistent underscores the need for

a final resolution of the issue of

whether DelCostello should be applied

retroactively.

REASONS FOR GRANTING THE WRIT

THE NINTH CIRCUIT'S DECISION

CONFLICTS WITH THIS COURT'S

DECISION IN DELCOSTELLO AND

DECISIONS OF OTHER COURTS OF APPEALS

THIS COURT APPLIED

DELCOSTELLO RETROACTIVELY

In DelCostello this Court

observed that the practice of

-—-16-

borrowing the most analogous state

statute of limitations where a federal

statute does not provide a limitations

period may “be unsatisfactory vehicles

for the enforcement of federal law."

462 U.S. at 161. Recognizing the need

for prompt resolution of labor

disputes, a principle firmly rooted in

federal labor law policy, and the

parallels between the breach of duty

of fair representation and an unfair

labor practice, this Court embraced

the 6-month statute of limitations in

Section 10(b) of the NLRA as governing

actions brought by an employee under

Section 301 of the Labor Management

Relations Act 12/ for the union's

breach of its duty of fair

12/ 29 U.S.C. §185(a).

—-l17-

va 4

Wiiaitiat tiie co ria Vecldisak

representation and the employer's

breach of the collective bargaining

agreement. The Court's holding was

applied to one of the two plaintiffs

before it, reversing the Court of

Appeals' application of a state 3-year

statute of limitations for malpractice

actions ordering dismissal of the

claim.?

In United Parcel Service,

Inc. v. Mitchell, 451 U.S. 56, 101

S.Ct. 1859, 67 L.Bd.2d 732 (1981),

overruled by DelCostello v.

International Brotherhood of

Teamsters, this Court selected the

13/ United Steelworkers of America v.

Flowers, 462 U.S. 151, 103 S.Ct. 2281,

76 L.Ed.2d 476 (1983). The Second

Circuit had applied a New York statute

of limitations for malpractice actions

and found the complaint timely.

-18-

}

iii wb

state statute of limitations for

vacating arbitrations award as the

most analogous limitations period and

overturned the Court of Appeals'

selection of a six year statute of

limitations period. The effect of the

Court's decision was to extinguish the

employee's claim, and it did so

without discussing Huson.

In Chevron Oil Company v.

Huson, 404 U.S. 97, 92 S.Ct. 349, 30

L.Ed.2d 296 (1971), this Court

declined to retroactively apply its

decision substituting a state statute

of limitations for a federal statute.

This Court identified three factors;

first, whether the decision

established a new principle of law,

second, whether retroactive

application will advance or retard the

-19-

new ruling's effect, and third whether

retroactive application would produce

"substantial inequitable results".

404 U.S. at 107 quoting Cypriano v.

City of Houma, 395 U.S. 701, 706, 89

S.Ct. 1897, 23 L.Ed.2d 647, 652 (1969).

This Court did not discuss

Huson in DelCostello finding no bar to

retroactively using the 6-month

statute of limitations to extinguish

one of the claims before it.+*’

Thus, the Huson factors have no

application where a federal statute of

limitations is borrowed to promote

14/ Justice O'Connor in dissent

observed that she would continue to

apply United Parcel Service, Inc. v.

Mitchell and that "it is quite

appropriate to apply Mitchell

retroactively." citing Huson. 462

Ue, BE ore eG. 2, B80 &.00. 225i, 76

L.Ed.2d at 496 n. 2.

—-20-

uniformity and the rapid resolution of

labor disputes, policies central to

both the NLRA and the RLA.

Even if the Ninth Circuit

properly determined that the Huson

factors were applicable their

application did not foreclose

retroactivity. First, the only

applicable precedent, a decision by

the District Court, borrowed the

l-year statute of limitations under

H.R.S. Section 657-11, a limitations

period exclusively for federal causes

of actions.?’

The Ninth Circuit's

conclusion that the IAM could not have

foreseen the application of

15/ Hafer v. Airline Pilots

Association, 525 F.Supp. 874 (D.Hawaii

1981), affirmed without opinion 698

F.2d 1230 (9th Cir. 1983).

—-21-

DelCostello to cases under the RLA is

undercut by the fact that the Courts

of Appeals were quick to apply

DelCostello to actions arising under

the RLA.+*”

Indeed, the Ninth Circuit in

Barina v. Gulf Trading and

Transportation Company, 726 F.2d 560,

563-6 (9th Cir. 1984) characterized

the distinction between the RLA and

NLRA as "without import" for the

purposes of applying a federal

limitations period.

16/ Barnett v. United Airlines, Inc.,

738 F.2d 358 (10th Cir. 1984); cert.

denied U.&S. » £03 8.0%. 304, 83

L.Ed.2d 703 (1984); Sisco v.

Consolidated Rail Corp., 732 F.2d 1188

(3d Cir. 1984); Welyczko v. U.S. Air,

Inc., 733 ¥.2€ 2339, ana Cic. 1566),

cert. denied U.S. 165 &.Ct.

512, 83 L.Ed.2d 402 (1984).

-22-

‘

Second, the Ninth Circuit

acknowledged that retroactive

application of its decision would

promote the prompt resolution of labor

disputes but concluded that to do so

would be inequitable. But the only

reason a retroactive application of

DelCostello would have extinguished

the IAM's claims was its inaction

after its first action has been

dismissed, hardly the basis for a

finding of inequity.+’

17/ The IAM's first attempt to compel

arbitration was denied on October 25,

1983. (17a) This action was not

filed until almost five months later -

March 9, 1984.

—-23-

a i

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ial Te

THE NINTH CIRCUIT STANDS

ALONE IN REFUSING TO

APPLY DELCOSTELLO

RETROACTIVELY TO BAR A CLAIM

The Sixth Circuit has applied

DelCostello retroactively without

engaging in a Huson analysis.

Smith v. General Motors Corp., 747

F.2d 372 (6th Cir. 1984). The Second

Circuit originally rejected the need

to discuss Huson in Welyczko v. U.S.

Air, Inc., 733 F.2d 239 (2nd Cir.

1984), cert. denied U.S. , 105

S.Ct. 512, 83 L.Ed.2d 402 (1984), but

has created an exception, Byrne v.

Buffalo Creek Railway Company, 765

F.2d 364 (2nd Cir. 1985), where it

both embraced a Huson analysis and

refused to apply DelCostello

retroactively.

—-24-

The First Circuit, applying a

Huson analysis, has found DelCostello

to be retroactive. Graves v. Smith

Transfer Corp., 763 F.2d 819 (lst Cir.

1984). The Third Circuit has taken an

identical approach. Perez v. Dana

Corp., Parish Frame Division, 718 F.2d

581 (3d Cir. 1983); Sisco v. Conrail,

732 F.2d 1188 (3d Cir. 1984) (applying

Perez to case under RLA).

The Fourth Circuit has

refused to apply DelCostello

retroactively to a breach of duty of

fair representation action arising

under the RLA in Triplett v.

Brotherhood of Railway, Airline and

Steamship Clerks, 763 F.2d 625 (4th.

Cir. 1985) and to a case under the

NLRA, Zemonick v. Consolidation Coal

Company, 762 F.2d 381 (4th Cir. 1985),

ot an eo oe

;

{

but did apply DelCostello

retroactively in Murray v. Branch

Motor Express Company, 723 F.2d 1146

(4th Cir. 1983), cert. denied

U.S. , 105 §.Ct. 292, 83 L.Ba.2¢d

228 (1984); Sine v. Local 992,

International Brotherhood of

Teamsters, 730 F.2d 964 (4th Cir.

1984) (same).

The Seventh Circuit has

applied DelCostello retroactively

after analyzing the Huson factors.

Landahl v. PPG Industries, 746 F.2d

1312 (7th Cir. 1984) (NLRA); United

Independent Flight Officers v. United

Airlines, Inc., 756 F.2d 1262 (7th

Cir. 1985) (RLA). An identical result

was reached by the Eighth Circuit in

Lincoln v. District Nine,

International Association of

-—-26-

Machinists, 723 F.2d 627 (8th Cir.

1983) (NLRA); Hunt v. Missouri

Railroad, 729 F.2d 578 (8th Cir. 1984)

(RLA) and by the Eleventh Circuit in

Rogers v. Lockheed Georgia, 720 F.2d

1247 (llth Cir. 1983), cert.

denied U.S. , 105 &.Ct. 292, 83

L.Ed.2d 227 (1984) (NLRA).

The Tenth Circuit has applied

DelCostello retroactively in an action

arising under the RLA in Barnett v.

United Airlines, Inc., 738 F.2d 358

(10th Cir. 1984), cert. denied

U.S. » £05 €.CO. 394, 82 &. 86.26

703 (1984), but has refused to do so

in a case arising under the NLRA on

the basis of Huson. Jones v.

;

en ON Net taeit A

Consolidated Freightways Corp., 776

F.2d 1458 (10th Cir. 1985) .+*7”

The Courts of Appeals are in

unison that the 10(b) statute of

limitations selected in DelCostello

for cases under the NLRA applies with

equal force to cases arising under the

RLA. In declining to give DelCostello

retroactive effect in this case, the

Ninth Circuit did not articulate any

distinction between cases arising

under the RLA and under the NLRA, but

rather ruled on its prior decisions

18/ The only Court of Appeals that has

not addressed this issue is the

District of Columbia Circuit.

However, the District Court for the

District of Columbia has applied

DelCostello retroactively after

discussing Huson. Goins v. Teamsters

Local 639, 598 F.Supp. 1151 (D.C.

1984).

—28-

oS ihe Rn a ad

which contained an analysis of the

Huson factors.+*” Thus, the

conflict between the Ninth Circuit and

the other circuits presents a question

of federal labor policy common to

actions under the NLRA and the RLA.

The Ninth Circuit stands alone in

uniformly refusing to apply

DelCostello retroactively where the

effect would be to shorten the

applicable statute of limitations and

bar the claim.

The Ninth Circuit's decision

- directly conflicts with the decisions

of the two other Courts of Appeals

19/ E.g. Edwards v. Teamsters

Local 36, 719 F.2d 1036 (9th Cir.

1983), cert. denied 465 U.S. 1102, 104

S.Ct. 1599, 80 L.Ed.2d 130 (1984);

Barina v. Gulf Trading and

Transportation Company, 726 F.2d 560

(9th Cir. 1984).

—-29-

which have applied DelCostello

retroactively to cases presenting pure

statutory actions under the RLA. In

Brotherhood of Locomotive Engineers v.

Atchinson, Topeka & Santa Fe Railway

Company, 768 F.2d 914 (7th Cir. 1985),

the Seventh Circuit applied

DelCostello to claims brought under

Section 2 (First) of the RLA,

45 U.S.C. §152 (First) reasoning that

such claims are analogous to an

employer's refusal to bargain under

Section 8(a)(5) of the NLRA.#°”

Although there was no express

discussion of retroactivity the

Seventh Circuit observed "This suit

was brought in 1982, which was too

late to complain about a refusal to

20/ 29 U.S.C. §158(a)(5).

~SG—

SOAS a Naha 5G OS ak, Tied hse tne ees Be shit anit

bargain in 1972." 768 F.2d at 919.

The Seventh Circuit had already

applied DelCostello retroactively to a

duty of fair representation action

brought under the RLA. United

Independent Flight Officers, Inc. v.

United Airlines, Inc., 756 F.2d 1262

(7th Cir. 1965).

The Second Circuit applied

DelCostello to an action brought under

Section 2 (Fourth) of the RLA,

45 U.S.C. §152 (Fourth) in Robinson v.

Pan American World Airways, Inc., 777

F.2d 84 (2nd Cir. 1985). Without

discussion the Second Circuit found

DelCostello applicable to an action

which had accrued in 1982 but remanded

the proceeding to the District Court

to rule on the plaintiffs' claims of

equitable tolling. However, nothing

«Ri~-

in the Second Circuit's opinion

intimates that its decision would not

be applied retroactively.

The conflict of the Ninth

Circuit's decision with the other

Courts of Appeals is most graphically

presented in Brotherhood of Locomotive

Engineers and Robinson v. Pan Am, but

is indicative of a much larger

conflict between the Circuits and

within the Circuits themselves on

whether to apply DelCostello

retroactively, whether to employ the

Huson analysis, and whether

retroactivity is appropriate in some

cases but not all. This conflict has

raged since DelCostello was decided,

has spread to cases under the RLA, and

is now ripe for resolution.

-32-

II.

THIS COURT MUST FINALLY

ADDRESS AN IMPORTANT

ISSUE OF FEDERAL LABOR POLICY

Although it has had the

opportunity, this Court has refused to

resolve the conflict between the

Circuits concerning the retroactive

application of DelCostello.?“” The

anomaly created by the Ninth Circuit's

refusal to apply DelCostello

retroactively except where it would

lengthen the statute of limitations

21/ See Justice White's dissent from

the denial of certiorari in Greyhound

Lines, Inc. v. Wilhite,

U.S. , 106 S.Ct. 280, 88 L.Ed.2d

244 (1985) and Saville v. Westinghouse

Electric Corp., U.S. , 106

S.Ct. 280, 88 L.Ed.2d 245 ~ (1985), in

which he observed that the conflict

both in the retroactive application of

DelCostello, and in the applicability

of Huson warranted this Court's

attention.

-33-

destroys the principle of uniformity,

one of the foundations of this Court's

decision in DelCostello. Further, the

prompt resolution of labor disputes,

another underpinning of DelCostello,

is ill-served by having different

statutes of limitations for the same

cause of action depending on the situs

of the dispute.

This Court will soon resolve

another issue posed by DelCostello;

whether application of the 6-month

statute of limitations of Section

10(b) of the NLRA requires that the

complaint both be filed and served

within six months in order to be

timely.#4” This Court's resolution

22/ Compare West v. Conrail, 780 F.2d

361 (3rd Cir. 1985), cert.

granted, U.8. , 34 U.&.L.W.

3859 (June 30, 1986) (complaint

of that issue will inevitably spawn

another debate among the Courts of

Appeals whether it should be applied

retroactively. This Court should

utilize this opportunity to finally

resolve the retroactive application of

DelCostello.

The fact that the Courts of

Appeals cannot agree among themselves

whether DelCostello should be

retroactively applied, and are

internally inconsistent underscores

the need for a definitive resolution

22/ (Cont'd)

alleging duty of breach of fair

representation must be filed and

served within six months) with

Macon v. ITT Continental Baking Co.,

779 F.2d 1166 (6th Cir. 1985) (contra).

-3 5-

of this issue.**” The factors that

have led the Courts of Appeals to

borrow the 10(b) statute of

limitations for cases arising under

the RLA, uniformity and the prompt

resolution of labor disputes have been

undercut by their array of approaches

to retroactivity. The time has come

to resolve this conflict.

CONCLUSION

For the foregoing reasons

this Court should resolve the conflict

23/ E.g. Byrne v. Buffalo Creek

Railroad Company, 765 F.2d 364 (2nd

Cir. 1985) (fact that case had

advanced to trial on the merits

precluded retroactive application of

DelCostello); Triplett v. Brotherhood

of Railway, Airline, and Steamship

Clerks, 763 F.2d 625 (4th Cir. 1985).

(Existence of prior decisions applying

five year state statute of limitations

defeated retroactively).

—36-

among the Courts of Appeals concerning

the retroactive application of

DelCostello, grant the Petition for a

Writ of Certiorari, and reverse the

judgment of the Ninth Circuit Court of

Appeals.

August 19,

Respectfully submitted,

ROBERT S. KATZ

(Counsel of Record)

RICHARD M. RAND

Torkildson, Katz, Jossem,

Fonseca & Moore

Amfac Building, 15th Fl.

700 Bishop Street

Honolulu, Hawaii 96813

Phone: (808) 521-1051

Attorneys for

Petitioners, Aloha

Airlines, Inc.

1986

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

INTERNATIONAL No. 84-2693

ASSOCIATION OF

MACHINISTS AND D.C. No.

AEROSPACE WORKERS, CV 84-0239

Plaintiffs-

Appellants, ORDER

vs.

ALOHA AIRLINES, INC.

ue ee ee ee

Defendant-—

Appellee.

Appeal from the United States

District Court for the

District of Hawaii

Harold M. Fong, District Judge,

Presiding

Argued and submitted

November 14, 1985

Honolulu, Hawaii

Filed February 6, 1986

Before: SKOPIL, FLETCHER, and

ALARCON, Circuit Judges.

lax

The court's Opinion in this

case filed February 6, 1986 is amended

as follows:

Insert footnote 3 on page 21

of the slip opinion, line 3, (at end

of sentence) [781 F.2d at 1411, last

sentence of first paragraph continuing

from page 1410]:

, Unlike the instant case,

neither Butler nor Smart

involved a claim primarily

founded upon a statutory

violation; the claims in both

cases were grounded in the

collective bargaining

agreement. Nevertheless, the

equitable tolling doctrine

which the Eighth and Sixth

Circuits employed to avoid

penalizing the litigants for

exhausting their arbitral

remedies under their

collective bargaining

agreements is applicable in

the instant case because

until June 24, 1983, the IAM

believed that its claim was a

minor dispute primarily

founded upon the collective

bereetnine agreement and thus

was arbitrable. Although on

March 10, 1983 Aloha asserted

that the dispute was not

grievable, it was not until

June 24, 1983 that Aloha

spelled out the detail of its

position that the IAM's

complaint was a major dispute

litigable in the federal

courts.

Insert footnote 4 on page 21

of the slip opinion, line 6 (at end of

the sentence ending with the word

"agreement") [781 F.2d at 1411, after

first sentence in first full

paragraph]:

The IAM's belief that

the instant case presented a

minor dispute was reasonable

as a matter of law. Contrary

to Aloha's contentions, the

law was far from clear

regarding whether the

determination of the status

quo under the RLA was a major

dispute involving an

interpretation of the Act or

a minor dispute implicating

an interpretation of the

parties' collective

bargaining agreement. In the

predecessor case to the

instant appeal, another panel

of this court noted that "the

IAM's argument [that this was

a minor dispute] has

intuitive appeal." IAM v.

Aloha Airlines, 776 F.2d at

816. Although the panel

ultimately concluded that a

determination of the status

quo is a major dispute over

which the federal courts have

jurisdiction, see id., it

considered the question to be

sufficiently novel to warrant

publication.

We note that the

application of the tolling

doctrine t future actions of

—-5a-

PRET

this type will be extremely

limited. In light of our

decision in IAM v. Aloha

Airlines, Inc., 776 F.2d 812,

that the determination of

status quo under the RLA is a

major dispute which is not

arbitrable, a party in the

IAM's position can no longer

contend in good faith that

its grievance relating to

status quo is arbitrable.

Thus, pursuit of arbitral

remedies available under a

collective bargaining

agreement would not operate

to toll the statute of

limitations on a status quo

claim under the RLA accruing

after the date of our

decision in IAM v. Aloha

Airlines, Inc., 776 F.2d

812. See International Union

of Electrical Workers v.

Robbins & Myers, Inc., 429

U.S. 229, 238 (1976) (filing

of grievance’ under collective

bargaining agreement does not

toll limitations period

applicable to statutory claim

of racial discrimination

before the Equal Employment

Opportunity Commission).

Delete the last sentence in

the first full paragraph on page 21 of

the slip opinion [781 F.2d at 1411]

("Because this date... ."), and

substitute the following:

ee eta Mee een Se AiR de Nae kk ek oh a oe a a ere

aA ape

ee it ite aw te i

PL eee WES GH AALASS wrath

The complaint was filed on

March 9, 1984. That date is

less than one year after

June 24, 1983. Therefore,

the IAM's action was timely

filed.’*

Footnote 5 will read as follows:

. Aloha contends that a

remand to the district court

is required in order to

develop the facts concerning

the IAM's four-month delay in

filing this action following

the district court's

October 25, 1983 grant of

partial summary judgment in

Aloha's favor in the prior

lawsuit. We disagree. Under

the unique circumstances of

this case, application of the

ss os SON. Salas fe voae “

PAT IE ANG OIE 62 Re OCS EEE) beam ale OPCS OE, et. hee ote oe eo Tee E morn —_ >

"a asuilalaaaalalal FT FL ee

equitable tolling doctrine

presents a question which we

are able to resolve as a

matter of law: whether the

IAM's belief that the instant

case presented a minor

dispute was reasonable under

then-existing case law. In

‘light of our conclusion that

the IAM's cause of action did

not accrue until June 24,

1983, filing would have been

timely until June 24, 1984;

any delay in filing within

that period is irrelevant.

The panel as constituted

above has voted to deny the petition

for rehearing and to reject the

suggestion for rehearing en banc.

-9a-

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.

Fed. R. App. P. 35(b).

The petition for rehearing is

denied and the suggestion for

rehearing en banc is rejected.

-10a-

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

INTERNATIONAL

ASSOCIATION OF

No. 84-2693

MACHINISTS AND D.C. No.

AEROSPACE WORKERS, CV 84-0239

Plaintiffs-

Appellants, MENDED

PINION

Vs.

ALOHA AIRLINES, INC.,

Defendant-

Appellee.

ee ee ee ee ee ee 8 ee Se”

Appeal from the United States

District Court for the

District of Hawaii

Harold M. Fong, District Judge,

Presiding

Argued and submitted

November 14, 1985

Honolulu, Hawaii

Filed February 6, 1986

Before: SKOPIL, FLETCHER, and

ALARCON, Circuit Judges.

ALARCON, Circuit Judge:

-lla-

The International Association

of Machinists and Aerospace Workers

(hereinafter IAM) appeais from the

district court's order granting

summary judgment in favor of Aloha

Airlines, Inc. (hereinafter Aloha), on

the IAM's complaint for declaratory

relief and damages for breach of the

collective bargaining agreement and

for violations of the "status quo"

provisions of the Railway Labor Act

(RLA), 45 U.S.C. §§ 151-188 (1982).

This case presents a question of first

impression in this circuit: what

statute of limitations is applicable

to an action for breach of a

collective bargaining agreement and

for violations of the "status quo”

provisions of the RLA? We conclude

that principles of res judicata bar

~iZa-

ee ee Sere a LION TIES EES A COE APNE OT

relitigation in this action of IAM's

request for compulsory arbitration.

However, IAM's requests for

declaratory relief and damages for

breach of the collective bargaining

agreement and for breach of the RLA's

status quo provisions are not barred

as they have not been litigated

previously. We further find that the

instant action was timely filed within

the limitations period then applicable.

I. PERTINENT FACTS AND

PROCEDURAL HISTORY

Aloha, a common carrier under

section 201 of the RLA, 45 U.S.C. §181

(1982), entered into a collective

bargaining agreement with the IAM on

December 6, 1979 (the Basic

Agreement). Article XXIII of the

Basic Agreement provided that the

agreement would remain in force

-13a-

onward

through December 31, and would renew

itself each year unless a notice of

intended change was served by one of

the parties.

As a result of financial

difficulties within the airline

industry during 1981-82, the IAM

agreed to temporary wage and benefit

concessions in an Interim Agreement

which became effective on April 2,

1982 and was incorporated into the

Basic Agreement. The Interim

Agreement provided that the

concessions would be effective only

through February 28, 1983, and that on

March 1, 1983, the Basic Agreement

would renew itself without change

unless either party filed a notice of

intended change.

—-14a-

On December 30, 1982, the IAM

served a notice of irtended change on

Aloha, proposing modifications in the

Basic Agreement. The parties

commenced bargaining in January 1983.

They reached an impasse, and the

dispute moved into mediation pursuant

to section 5 of the RLA, 45 U.S.C.

§155 (1982). On February 11, 1983,

Aloha advised the IAM that the terms |

of the Interim Agreement would

continue in effect beyond March l,

1983 and until further notice. The

IAM filed grievances with Aloha on

behalf of the clerical and mechanical

units concerning Aloha's proposal to

continue paying wages and benefits in

accordance with the Interim

Agreement. The grievances were

processed to a deadiock under the

—1 3a

“ai

grievance procedure set forth in

Article XV of the collective

bargaining agreement. On June 24,

1983, Aloha notified the IAM by letter

that it refused to submit the dispute

to arbitration pursuant to Articles XV

and XVI of the collective bargaining

agreement because it was a major

dispute which was not subject to

binding arbitration under the RLA.

Aloha relied upon the status quo

provisions of the RLA, which require

both parties to a coilective

bargaining agreement to preserve the

status quo after service of a notice

of intended change until a new

agreement is reached or the RLA's

mediation procedures have been

exhausted. See 45 U.S.C. §§155, 156

(1982).°

~168-

The IAM filed an action in

Hawaii state court on July 27, 1983 to

compel arbitration of the dispute.

Aloha removed the action to federal

court on the grounds that it was a

dispute arising under the RLA, and

counterclaimed for declaratory and

injunctive relief. Aloha also filed a

motion for partial summary judgment on

the issue of compelling arbitration.

The district court granted Aloha's

motion for partial summary judgment

and denied the IAM's petition to

compel arbitration on October 25,

1983. This court affirmed the

district court's judgment on the IAM's

interlocutory appeal. IAM v. Aloha

Airlines, Inc., 776 F.2d 812, 816 (9th

Cir. 3306).

-17a-

On March 9, 1984, the IAM

filed a second complaint in district

court on behalf of the clerical and

mechanical employees, seeking

declaratory relief and damages for

breach of contract and for violations

of the status quo provisions of the

RLA. The complaint also seeks an

order to arbitrate the dispute. Aloha

filed a motion to dismiss the entire

action on res judicata grounds and for

Sanctions. The district court treated

Aloha's motion as a summary judgment

motion and granted it on the grounds

that the previous ruling on the

petition to compel arbitration was res

judicata of the second action for

declaratory relief and damages.

Aloha's motion for sanctions was

denied.

—-18a-

EEE ee

II. STANDARD OF REVIEW

We review the district

court's grant of summary judgment

de novo. Grigsby v. CMI Corp., 765

F.2G 1369, 1373 (9th Cir. 19865). We

apply the same standard as that

employed by the trial court under Fed.

R. Civ. P. 56(c): we will affirm only

if the record, read in the light most

favorable to the non-moving party,

reveals no genuine issues of material

fact and establishes that the moving

party is entitled to judgment as a

matter of law. Id.

III. RES JUDICATA

Under the doctrine of res

judicata, a final judgment on the

merits precludes relitigation of

claims which were or could have been

raised in a prior action. Amaro v.

-19a-

Continental Can Co., 724 F.2d 747, 749

(9th Cir. 1984). All issues that were

litigated or that might have been

litigated as part of the prior cause

of action are barred. Los Angeles

Branch NAACP v. Los Angeles Unified

School District, 750 F.2d 731, 737

(9th Cir. 1984) (en banc), cert.

denied, 106 S.Ct. 247. The IAM

contends that the district court's

grant of partial summary judgment in

the prior action was not a judgment

"on the merits" of the present dispute

so as to preclude relitigation of

claims which were or could have been

raised in that action. Instead, the

IAM argues that the district court's

ruling that the dispute was not

arbitrable was a jurisdictional ruling.

—-20a-

a ioeleceeael

The district court's

memorandum opinion in the prior action

addresses the question whether the

IAM's grievance involved a minor

dispute subject to arbitration under

the parties' collective bargaining

agreement, or a major dispute

involving the application of the

status quo provisions of the RLA. The

district court in the prior action did

not purport to resolve the primary

question raised by the instant

complaint: whether Aloha'’s refusal to

reinstate the terms of the Basic

Agreement violates the collective

bargaining agreement and the status

quo provisions of the RLA. On the

IAM's interlocutory appeal in the

prior action another panel of this

court determined that the dispute was

—-2la-

POPE PRE, Fm

a major dispute not subject to

arbitration. IAM v. Aloha Airlines,

Inc., 776 F.2d at 816. The court

viewed the case as raising only the

narrow question whether the dispute

was arbitrable, and expressly refused

to resolve on appeal the terms and

conditions of employment which should

apply during the status quo period

under the RLA. Id. at 816-17.

Because this court's

resolution of the IAM's previous

action settled the question whether

the IAM's grievance was arbitrable,

the IAM's request in its second

complaint for an order compelling

arbitration is barred by the doctrine

of res judicata. The remainder of the

IAM's second action, however, is not

barred by res judicata principles.

—-22a-

The merits of the dispute -- whether

Aloha's refusal to reinstate the terms

of the Basic agreement violates the

collective bargaining agreement and

the status quo provisions of the

RLA -- were not actually litigated in

the prior action to compel arbitration.

The claims raised by the IAM

in the instant case could not have

been raised in the prior action. When

faced with a petition to compel

arbitration, a court's role is limited

to "'ascertaining whether the party

seeking arbitration is making a claim

which on its face is governed by the

contract.'" United Food & Commercial

Workers Union v. Alpha Beta Co., 736

F.2d 1371, 1374 (9th Cir. 1984)

(quoting United Steelworkers v.

American Manufacturing Co., 363 U.S.

—23a-

564, 567-68 (1960)). The court

neither resolves the underlying

factual controversy nor weighs the

relative merits of the parties'

claims. URS Co.-Kansas City v. Titus

County Hospital Dist., 604 F.Supp.

423, 424 (W.D. Mo. 1985).

Aloha nevertheless contends

that the IAM should have joined its

motion to compel arbitration and its

claim for aE aE ECOLY relief and

damages in a single action, and argues

that the IAM gambled and lost by

deliberately splitting its cause of

action. Aloha's argument is

meritless. Applying the standard

enunciated by this court in

Costantini v. Trans World Airlines,

681 F.2d 1199 (9th Cir.), cert.

denied, 459 U.S. 1087 (1982), we find

—-24a-

that the two actions involve different

claims. In Costantini, we established

the following criteria for determining

whether successive lawsuits involve a

single cause of action:

"{1) whether rights or

interests established in the

prior judgment would be

destroyed or impaired by

prosecution of the second

action; (2) whether

substantially the same

evidence is presented in the

two actions; (3) whether the

two suits involve

infringement of the same

richt; and (4) whether the

two suits arise out of the

same transactional nucleus of

facts." Harris v. Jacobs,

623..7.28 341, 343 (9th Cir.

1980). The last of these

criteria is the most

important. Id.

Costantini, 681 F.2d at 1201-02

(footnote omitted).

The instant action and the

prior action do share a common nucleus

of underlying facts. We are

-25a-

persuaded, however, that it would be

inequitable to require a party to

simultaneously assert that the federal

courts lack jurisdiction over a

dispute because it is a minor dispute

subject to arbitration, and that the

federal courts have jurisdiction to

resolve the merits of the dispute

because it is a major dispute governed

by the RLA. Moreover, the remaining

criteria circumscribing the boundaries

of a single claim are not met.

Prosecution of the second action would

not impair Aloha's right to have the

dispute resolved under the RLA in

federal court rather than by an

arbitrator; in fact, it would further

that right. The question whether

different evidence would be required

does not offer any guidance in the

~36a-

context of the instant case because

the facts are not in dispute: the

sole questions raised by both actions

are legal in character rather than

factual.

Finally, the two actions

allege the infringement of different

rights. In the first action, the IAM

sought to vindicate Aloha's alleged

infringement of its contractual right

to arbitration. In the second action,

the IAM seeks to enforce its statutory

right to require Aloha to maintain the

status quo during mediation of their

bargaining dispute. Not only would it

be inequitable to require a party to a

collective bargaining agreement to

consolidate in a single action a

request for arbitration and a

contradictory request for adjudication

—-27a-

of the underlying dispute by the

court, but such a requirement would

destroy the utility of a petition to

compel arbitration.

Aloha's reliance on Towers,

Perrin, Forster & Crosby, Inc. v.

Brown, 732 F.2d 345 (3d Cir. 1984) is

misplaced. In Towers, Brown filed an

action in state court requesting

interpretation of noncompetition and

forfeiture provisions in a contract

and seeking a declaratory judgment.

Id. at 346-47. Towers answered and

filed a petition to compel arbitration

pursuant to the California Arbitration

Act. Id. at 347. The superior court

denied the petition to compel, and its

ruling was ultimately affirmed on

appeal. Id. While the appeal was

pending, Towers filed a second

—-28a-

petition to compel arbitration

pursuant to the Federal Arbitration

Act in federal court, which the

district court granted. Id.

The Third Circuit reversed,

finding that res judicata barred the

pending case because the California

court had already ruled on the motion

to compel arbitration. Id. at 348.

The court reasoned that the two

actions sought exactly the same

relief --- arbitration -- and opined

that Towers could not split its cause

of action by gambling that it would

win on a state law theory, and when it

lost, seeking to assert a federal

theory which it had apparently held in

reserve. Id. at 348, 351.

Towers is readily

distinguishable from the instant case,

-29a-

where the second action is not another

motion to compel arbitration on a

different legal theory, but instead

seeks to litigate the merits of the

dispute. Indeed, Towers provides

support for the IAM's argument that

the merits of a dispute arguably

subject to arbitration constitute a

separate claim from the claim that the

dispute is arbitrable. In rejecting

Towers' argument that the California

order was not res judicata because the

merits had not yet been decided, the

Third Circuit stated:

Although a trial on the

merits has yet to take place,

we do not believe that the

finality of the order denying

arbitration is affected.

There were essentially two

separate actions in the

California trial court:

TPFC's [Towers'] special

proceeding to compel

arbitration, and Brown and

Riding's action for a

—-30a-

declaratory judgment and

damages. In our view, the

special proceeding finally

determined the merits

therein, i.e., the

arbitrability of the

dispute. Once a dispute has

been found not arbitrable,

the issue of arbitrability

should not arise again during

proceedings on the merits.

The finality of the order

entered in the special

proceeding is not undermined

by the fact that the outcome

of the dispute itself must be

resolved by a separate

action. See Cole v. BT & G,

Inc., 141 Cal. App. 3d 995,

190 Cal. Rptr. 690 (1983)

(order in special proceeding

was a final judgment although

merits of underlying dispute

remained to be litigated in a

separate action).

Id. at 349.

The district court erred in

ruling that the prior petition to

compel arbitration was res judicata of

all the claims set forth in the second

complaint. The portion of the IAM's

second complaint in which it seeks an

~3ta-

order compelling arbitration was,

however, properly dismissed on res

judicata grounds.

IV. STATUTE OF LIMITATIONS

Aloha also contends that the

IAM's second action is barred by the

statute of limitations. This argument

was raised below but the district

court did not address it in its

unpublished memorandum opinion.

Although Aloha did not file a

cross-appeal from the district court’s

ruling, we exercise our discretion to

decide the statute of limitations

question because it is a purely legal

issue, the injection of which would

not have caused the parties to develop

new or different facts. See

Donovan v. Crisostomo, 689 F.2d 869,

874 (9th Cir. 1982) (court heard and

-32a-

decided statute of limitations issue

which was raised in defendant's answer

but was not considered by trial court;

issue is one of law and requires no

further factual development); see also

Abex Corp. v. Ski's Enterprises, 748

F.2d 513, 516 (9th Cir. 1984) (whether

Equal Access to Justice Act abrogates

the priority of outstanding tax liens

to allow attorneys' fees award to

interpleader plaintiff is purely legal

question which may be resolved on

appeal even though not raised below).

A. UNIFORM FEDERAL STANDARD

The RLA does not contain a

statute of limitations for actions

such as the present combined claim for

breach of the collective bargaining

agreement and breach of the RLA's

status quo provisions. Ordinarily,

-33a-

when Congress has not expressly

provided a statute of limitations

governing actions based upon a federal

statute, the courts may apply the most

closely analogous state statute.

United Parcel Service, Inc. v.

Mitchell, 451 U.S. 56, 60 (1981)

(citing Auto Workers v. Hoosier

Cardinal Corp., 383 U.S. 696, 704-05

(1966)), overruled on other grounds,

DelCostello v. International

Brotherhood of Teamsters, 462 U.S. 151

(1983).

In DelCostello v.

International Brotherhood of

Teamsters, the Supreme Court held that

hybrid section 301/duty of fair

representation claims under the Labor

Management Relations Act (LMRA), 29

U.S.C. §§141-187 (1982), are to be

-34a-

governed by a uniform federal

limitations period. DelCostello, 462

U.S. at 171. The Court reasoned that

state legislegmres do not devise their

limitations periods with national

interests in mind, and noted that the

lengthy state limitations periods

analogous to duty of fair

representation claims (i.e., the three

to six year period applicable to legal

malpractice claims in most states)

would frustrate "the relatively rapid

final resolution of labor disputes

favored by federal law." Id. at 168 &

nh.is.

The Court concluded that a

more analogous limitations period was

the six-month period specified in

section 10(b) of the NLRA, 29 U.S.C.

§160(b) (1982), which governs the

-35a-

bringing of an unfair labor practice

charge before the National Labor

Relations Board. DelCostello, 462

U.S. at 169. The Court opined that

the need for national uniformity is

greater in such a hybrid action than

in an action for damages resulting

from a breach of the collective

bargaining agreement because a hybrid

action involves "'those consensual

processes that federal labor law is

chiefly designed to promote -- the

formation of the collective agreement

and the private settlement of disputes

under it.'" Id. at 162-63 (quoting

Auto Workers v. Hoosier Cardinal

Corp., 383 U.S. 696, 702 (1966)). The

Court found that the six-month

limitations period specified in

section 10(b) properly accommodated

-36a-

the competing interests. DelCostello,

462 U.S. at 171.’

Every circuit which has

addressed the question has held that

the same policies which led the Court

to adopt a federal limitations statute

for hybrid claims brought under the

LMRA apply with equal force to similar

actions brought under the RLA, which

governs labor-management disputes in

common-carrier industries. See, e.g.,

Dozier v. Trans World Airlines, Inc.,

760 F.2d 849, 851 (7th Cir. 1985);

Linder v. Berge, 739 F.2d 686, 689

(lst Cir. 1984); Barnett v. United Air

Lines, Inc., 738 F.2d 358, 363-64

(10th Cir.), cert. denied, 105 S.Ct.

594 (1984); Welyczko v. U.S. Air,

Inc., 733 F.2d 239, 240 (2d Cir.),

cert. denied, 105 S.Ct. 512 (1984);

-37a-

Sisco v. Consolidated Rail Corp., 732

F.2d 1188, 1192-93 (3d Cir. 1984).

Although this circuit has not yet

addressed the question, see Klemens v.

Air Line Pilots Ass'n, International,

736 F.2d 491, 499 n.7 (9th Cir.),

cert. denied, 105 S.Ct. 435 (1984), we

have indicated in dicta that the

distinction between actions brought

under the RLA and those brought under

section 301 of the LMRA is "without

import." Barina v. Gulf Trading &

Transportation Co., 726 F.2d 560, 563

n.6 (9th Cir. 1984).

Although we recognize that

the claim in the instant case is one

step removed from a hybrid section

301/fair representation claim because

it does not involve a claim for breach

of the duty of fair representation, we

-38a-

are persuaded that a combined claim

for breach of the collective

bargaining agreement and breach of the

status quo provisions of the RLA bears

a greater similarity to the hybrid

claim at issue in DelCostello than it

does to the straightforward breach of

collective bargaining agreement claim

‘alleged in Auto Workers v. Hoosier

Cardinal Corp. Unlike the claim in

Hoosier but like the claim in

DelCostello, the instant claim

involves an agreement to submit

disputes to arbitration. See

DelCostello, 462 U.S. at 162.

Further, national uniformity is a mure

important concern in a case such as

this which, like DelCostello,

implicates the consensual processes

which labor law was designed to

—-39a-

promote: it raises questions

regarding the appropriate terms and

conditions to be maintained under the

RLA's status quo provisions during the

negotiation of a new collective

bargaining agreement. See id. at

162-63. Finally, as discussed in

detail infra, section IV C, the

present action more closely resembles

an action founded upon violation of a

federal statute than it does an action

for breach of contract. Therefore, we

believe that the Court's reasoning in

DelCostello governs the case before

us, and we conclude that federal law,

not state law, is the source of the

limitations period applicable to a

combined claim for breach of the

collective bargaining agreement and

-40a-

violation of the RLA's status quo

provisions.

There are two federal

statutes of limitations which may

apply to the instant case: the

six-month period of section 10(b) of

the NLRA or the two-year period

provided in the RLA for suits

challenging the decisions of the

National Railroad Adjustment Board, 45

U.S.C. §153 First (r) (1982). Because

the IAM's second action was filed more

than six months but less than two

years after Aloha gave notice that it

would continue to implement the terms

of the Interim Agreement, we must

decide which federal limitations

period governs. Cf. Linder v. Berge,

739 F.2d at 689 (declining to choose

between two-year period and six-month

-4la-

period because action was time-barred

under either statute).

The IAM's suggestion that the

applicable period is the two-year

period specified in section 153 First

(r) of the RLA is meritless. On its

face, the two-year limitations period

of section 153 is applicable only to

actions to review an award of the

National Railroad Adjustment Board

(NRAB). Section 153 governs the

establishment, composition, powers and

duties of the NRAB, which has

jurisdiction over disputes between

common carriers and their employees.

45 U.S.C. §153 First (h). Subsection

First (q) provides that employees or

Carriers aggrieved by the terms of an

NRAB award or by the NRAB's failure to

make an award in a dispute referred to

-42a-

it, may file an action in federal

court for review of the NRAB's order.

Subsection First (r) of the statute

provides: "All actions at law based

upon the provisions of this section

shall be begun within two years from

the time the cause of action accrues

under the award of the division of the

Adjustment Board, and not after."

(emphasis added).

Furthermore, the nature of

judicial review of an NRAB order is

very different from that appropriate

to actions for breach of a federal

statute. NRAB awards are reviewed

under a narrow standard of review.

See 45 U.S.C. §153 First (q); Union

Pacific R.R. Co. v. Sheehan, 439 U.S.

89, 93 (1978) (per curiam). Where an

NRAB award exists, the award provides

—-43a-

sufficient information for the

reviewing court to exercise the

requisite narrow scope of review. In

contrast, the dispute in the instant

case was never referred to the NRAB

and no award was made. Indeed, the

dispute was a major dispute concerning

the formation of a collective

bargaining agreement or efforts to

secure new rights and incorporate them

into future agreements, and binding

arbitration was not available. IAM v.

Aloha Airlines, Inc., 776 F.2d at

815-16; cf. Gordon v. Eastern Air

Lines, Inc., 268 F. Supp. 210, 213

(W.D. Va. 1967) (two-year limitations

period in section 153 of the RLA is

applicable to airline industry dispute

where dispute was a minor dispute

already submitted to and resolved by

—-44a-

lthe System Board of Adjustment).

Therefore, the two-year limitations

period contained in section 153 of the

RLA is not applicable to the instant

action. See Sisco v. Consolidated

Rail Corp., 732 F.2d at 1193-94

(two-year period in section 153 of the

RLA is not applicable to duty of fair

representation claim under RLA).

We agree with Aloha that the

limitations period applicable to a

combined claim for breach of the

collective bargaining agreement and

breach of the status quo provisions of

the RLA is the six-month period

contained in section 10(b) of the

NLRA. In Brotherhood of Locomotive

Engineers v. Atchison, Topeka & Santa

Fe Railway Co., 768 F.2d 914 (7th Cir.

1985), the Seventh Circuit held that

--45a-

an action for damages and injunctive

relief based upon a combined claim for

breach of the collective bargaining

agreement and for breach of RLA §152

First (duty to bargain in good faith)

and RLA §156 (obligation to provide

advance notice of any unilateral

change in working conditions), was

governed by the six-month period in

NLRA §10(b). Id. at 919. The court

reasoned that because a refusal to

bargain is a classic unfair labor

practice, the analogy to section 10(b)

is stronger than in a duty of fair

representation case. Id. The court

stated that although two different

sections of the RLA were invoked in

the complaint, they covered the same

ground because a "refusal to bargain

consists in unilaterally --that is,

-46a-

without negotiations, without

bargaining -- altering the collective

bargaining agreement.” Id. at 920.