Petition for Writ of Certiorari — Herring v. Delta Air Lines, Inc.

7

| Supreme Court, U.S.

FILED

JAN 11 1990

‘ CPANIOL, JR.

| oP cae

IN THE ;

Supreme Court of the United States

OCTOBER TERM, 1989

PATRICK A. HERRING, JR.. ef al...

Pe titione is

V.

DELTA AIR LINES INC. and

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL.

Re sponds nts.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

-~

RAYMOND C. Fay

Counsel of Record

THOMAS R. GIBBON

BELL, BoyD & LLoyp

1615 L Street, N.W

Suite 1200

Washington, D.C. 20036

(202) 466-6300

January 1990 Counsel fo Petitioners

WILSON - Eras Printing Cx In 789.0096 W aSrHinc ~. OC 20001

QUESTIONS PRESENTED

1. When the surviving carrier in an airline merger

promises to arbitrate merger-related labor disputes in a

merger contract, is that promise enforceable under the

Railway Labor Act by the affected employees, particu-

larly where the challenged action is tainted by threats,

intimidation, coercion, and breach of the duty of fair

representation?

2. When the surviving carrier in an airline merger

promises to arbitrate merger-related labor disputes in a

merger contract, is that promise enforceable under the

Federal Arbitration Act by the affected employees, or is

it excluded from enforcement because it is a “contract of

employment’’?

(i)

LIST OF PARTIES

The petitioners are Patrick A. Herring, Jr., and the

other 660 pilots listed in the Appendix at 27a.

The respondents are Delta Air Lines, Inc. and the Air

Line Pilots Association, International.

The parties to the proceeding below are petitioners and

respondents in this Court.

TABLE OF CONTENTS

QUESTIONS PRESENTED TATE

ore cncceneprononecronsinnactastesneneoventens =

oo tesinisccageyestochvennenniceenton

SE

STATUTES INVOLVED...........

STATEMENT OF THE CASE .....................0....2....... bie

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

I.

Il.

Il.

THE ISSUE OF WHETHER EMPLOYEES IN

THE AIRLINE INDUSTRY MAY ENFORCE

AN EMPLOYER’S PROMISE TO ARBI-

TRATE MERGER-RELATED LABOR DIS-

PUTES IS AN IMPORTANT QUESTION OF

FEDERAL LAW SINCE REGULATORY

AGENCIES NO LONGER IMPOSE OR EN-

FORCE ARBITRATION REQUIREMENTS.

THE ARBITRATION OF LPP DISPUTES

UNDER THE RLA PRESENTS AN IMPOR-

TANT QUESTION OF FEDERAL LAW

THAT WARRANTS REVIEW BY THE

wee ........... I SS ee

CERTIORARI SHOULD BE GRANTED TO

RESOLVE THE CONFLICT IN THE CIR-

CUITS CONCERNING THE SCOPE OF THE

FAA’S ENFORCEMENT PROVISIONS .........

cesses vnctnnsentores 2 SER TTT :

APPENDIX

(iii)

i)

11

17

iv

TABLE OF AUTHORITIES

Cases Page

ALPA v. Department of Transportation, 838 F.2d

Be Cas Baas SD Saccnsinciccencncinincencasteiatuinaadeciasonscs 10

ALPA v. Transamerica Airlines, 817 F.2d 510 (9th

Cir.), cert. denied, 484 U.S. 963 _...00.000 ew... 13, 14

AT&T Technologies, Inc. v. Communications

Workers of America, 475 U.S. 643 (1986). 8

Allegheny-Mohawk Merger Case, 59 C.A.B. 19

RUE cetiidakantbeteniedcccesnccknaet canon scineaenabieret Lei rege 9,11

Allegheny-Mohawk Merger Case (Complaint of

Kingston and Foster), CAB Order 79-11-53

peared in Re ve son Ea ee itso aes ie eae ae 15

American Airlines, Inc. v. CAB, 445 F.2d 891 (24

Cir. 1971), cert. denied, 404 U.S. 1015 (1972).... 12,14

American-Trans Caribbean Merger, CAB Order

Sa ia cates datas cts snnideiseedaatintariaeene 11

Bernard v. ALPA, 873 F.2d 213 (9th Cir. 1988). 16

Brotherhood of Ry. Airline & Steamship Clerks ».

Atchison, Topeka and Santa Fe Ry. Co., 847

Fae Gee fee Ge, ee os hn... 14

Brotherhood of Railroad Trainmen v. Jacksonville

Terminal Co., 394 U.S. 369 (1969) 0... 13

Chicago & Northwestern Ry. Co. v. United Trans-

portation Union, 402 U.S. 570 (1971) ............... 13, 14

Chicago River & Indiana R.R. Co. v. Brotherhood

of R.R. Trainmen, 229 F.2d 926 (7th Cir. 1956),

aff'd, 353 U.S. 30, reh’g denied, 353 U.S. 948

II, eects aikeen eh rare eae ee EAS 13

Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 218

| RE AS RRA TS ert PRACT EL cat OE a 8

Delta Air Lines, Employee Integration, 63 C.A.B.

700 (1973) . . 11-12

Delta Air Lines, Ine. v. . CAB, 574 F.2d 546 (D. Cc.

Cir.), cert. denied, 439 U.S. 819 (1978) ............. 10, 12

Delta-Chicago & Southern Merger Case, 16 C.A.B.

ih, RRR ERR sneer Sh Rem Can Met are TaN A 11,14

Flying Tiger-Slick Merger Case, 18 C.A.B. 326

i. | | See BEN Ele ELT RRA DAR ARAB 11

Genesco, Inc. v. T. Kakiuchi & Co. 815 F.2d 840

Se ts ee ae eee ke 17

Vv

TABLE OF AUTHORITIES—Continued

Page

Int’l Ass’n of Machinists v. Alaska Airlines, Inc.,

818 F.2d 1088 (9th Cir. 1967) .............................. 13

Int’l Brotherhood of Teamsters v. Texas Int'l Air-

lines, 717 F.2d 157 (5th Cir. 1983) ...................... 12

McAllister Bros., Inc. v. A&S Transportation Co.,

je £ Fwy E> S| eeeeteneee enna 17

Moses H. Cone Memorial Hosp. v. Mercury Const.

Cis re Ne BR el cicc nn netieccwericctinncenscens 8

New Orleans & Northeastern R.R. Co. v. Bozeman,

abe fe & 8 Se | ene eeee 12

Pan American—Acquisition of Control of, and

Merger with National, CAB Order 82-4-75

PRU corenesasisieitesskdaa issn coon tna eancnttnccsamednciaicaelcnttes 14

Pan American World Airways, Inc. v. CAB, 683

Fe ee re Oils ED deesicree boven ecepansnacectasvencesnns 10

Robesky v. Qantas Empire Airways Limited, 573

eB Bt Be | Rene ene Creen 16

Rodriguez De Quijas v. Shearson/American Exp.,

ERs, TS Tees Te Ae etic beccceoccncacisnteecnnsation 8,17

Rogers v. ALPA, No. H-84-3985 (S.D.Tex. Nov.

BG Fe regal icccclanseculcn bec cuplenacecsaschacupennbeeiinemsens 16

Shearson/American Express, Inc. v. McMahon,

482 U.S. 220, reh’g denied, 483 U.S. 1056

hp ERRATA RESIN nol Seen Aa a ern As ra tacks ie Ad a x

Shearson Lehman/American Express v. Bird, 110

Ce Be Reon eit abs EE 7-8

Texas & N.O.R. Co. v. Brotherhood of Ry. & SS.

Clerks, 281 U.S. 548 (1930) ......... eae eee! 16

United-Capital Merger Case, 33 C.A.B. 307

ee ee )

United Steelworkers v. Warrior & Gulf Naviga-

tion Co., 368 U.S. 574 (1960).......................... : ~

Valero Refining, Inc. v. M/T Lauberhorn, 813

fp 8 8 ft 5 Re eee ee 17

Statutes

Federal Arbitration Act, 9 U.S.C. §§ 1-13 ............ 2,8

RE Aste incaoehonadncecs SEP. ae es 17

Be ie OE snc nopneteedcdecs ona rnccnaepseuscentuidetcineanicieds 16

vi

TABLE OF AUTHORITIES—Continued

Page

I i I sddahaphclinpmenia 2

28 U.S.C. §§ 1331, 1832, 1337, 2201......... et SAR 6

Railway Labor Act, 45 U.S.C. §§ 151-163, 181-

AES lp ee ee AL AP aN Oe eT LOO EE 8

Lees ulna 2,13

45 U.S.C. § 152 First ............... eee abceavaablonmdiae ae ee

te a rae Us I ccc ncccsenenencnnesececonncone> 7

ee eens A, Or ID cc case 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No.

PATRICK A. HERRING, JR., et al.,

. Petitioners,

DELTA AIR LINES INC. and

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioners Patrick A. Herring, Jr., et al., respectfully

pray that a writ of certiorari issue to review the judg-

ment and opinion of the United States Court of Appeals

for the Ninth Circuit, entered in the above-entitled pro-

ceeding on October 13, 1989.

OPINIONS BELOW

The unpublished memorandum of the Court of Appeals

for the Ninth Circuit, entered October 13, 1989, is re-

printed in the Appendix ai la.

The unreported memorandum of decision and order of

the United States District Court for the Central District

of California (Kelleher, D.J.), entered May 12, 1988, is

reprinted in the Appendix at 9a.

Ne ee

2

JURISDICTION

The memorandum of the Court of Appeals for the

Ninth Circuit affirming the judgments of the district

court was entered on October 13, 1989. The jurisdiction

of this Court to review the judgment of the Ninth Cir-

cuit is invoked under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

Railway Labor Act, 45 U.S.C. §§ 15la, 152 First; Fed-

eral Arbitration Act, 9 U.S.C. §$ 1, 2, 4. The text of the

statutory sections is set forth in the Appendix, 2la-24a.

STATEMENT OF THE CASE

Petitioners are the majority of the former Western Air

Lines, Inc. (‘Western’) pilots who are now employed

by Delta Air Lines, Inc. (“Delta”) as a result of a mer-

ger between the two companies. They seek to enforce a

promise made by Delta to arbitrate labor disputes arising

from the merger. Plaintiffs seek arbitration of their

claim that the Western and Delta pilot seniority lists were

integrated in an unfair and inequitable manner, both as

to the list integration process and as to the product of

that process. Petitioners do not seek to have the federal

courts adjudicate the merits of the seniority list integra-

tion dispute, but seek the courts’ assistance only to en-

force Delta’s promise to arbitrate the dispute.

On September 9, 1986, Western and Delta entered into

an agreement and plan of merger which required that

Delta provide Labor Protective Provisions (“LPPs’}

which were no less favorable than the LPPs crdered by

the Civil] Aeronautics Board in previous airline mergers.

In general, such LPPs provide monetary allowances to

employees adversely affected by the transaction, the equi-

table integration of seniority lists, and binding arbitration

of disputes relating to the LPPs. Section 3 of the LPPs

requires that the seniority lists be integrated “in a fair

and equitable manner” (A.25a). Section 13 of the LPPs

3

provides that “any dispute or controversy . .. with re-

spect to the protections provided herein . . . may be

referred by any party to an arbitrator... .” Td.

Upon stockholder approval of the Delta’ Western

merger in December 1986, the Western and Delta pilot

merger committees began negotiations to arrive at an

integrated seniority list to be jointly presented to Delta.

Since both pilot groups were represented by the Air Line

Pilots Association (““ALPA”), the negotiations were sub-

ject to the provisions of ALPA Merger Policy. This proc-

ess involves only the two pilot groups whose merger

representatives have authority to deal only with each

other and do not have authority to engage in negotia-

tions with the carrier. Although the ALPA Merger Policy

process can result in ALPA arbitration between the two

pilot groups, that is separate from LPP arbitration. Ar-

bitration under the LPPs occurs if the carrier refuses to

accept the joint list or if there is a dispute over the

integrated list.

Delta’s interference in these internal ALPA negotia-

tions began almost immediately. Delta management re-

peatedly insisted that the seniority list be put together

on a timetable far more accelerated than set forth in the

ALPA Merger Policy. At the same time, Delta manage-

ment insisted upon specified “parameters” for the list

which precluded negotiation of the proposals presented by

the Western pilot merger representatives. Ultimately,

Delta mandated that the list be put together on the basis

of ‘‘a ratio by equipment category and seat”—precisely the

method of integration advanced by the Delta pilots. Delta

management increased its pressure upon the former

Western pilots by repeatedly stating, contrary to its

promises in the LPPs, that it opposed arbitration and

would not accept an arbitrated decision it did not like.

Delta’s interference in the internal ALPA negotiations

culminated in a meeting at Delta headquarters in Atlanta

that was characterized by Delta’s current Chairman as a

4

“showdown meeting.” This May 19, 1987 meeting oc-

curred just after the Western pilot merger representa-

tives had declared an “impasse” in negotiations with the

Delta pilots. At the May 19 meeting, Delta’s then Chair-

man presented an ultimatum. Delta gave the pilots just

ten days to finalize the list. If not done, Delta threatened

to take a number of actions adverse to the Western pilots,

including the furlough of one third of the Western pilot

workforce, costing more than 300 pilots their jobs.

Delta’s furlough threats against the Western pilots

were unprecedented in the industry since furloughs typ-

ically result from reduced flying needs, with pilots sys-

temwide being given the opportunity to “bump” pilots of

less seniority. Also, it was unprecedented for a carrier

to propose furlough from only a targeted segment of its

workforce. Delta’s motives against the former Western

pilots were underscored by its own prior longstanding

policy against furloughs.

On May 28, 1987, one day before Delta management’s

deadline expired, the Western representatives capitulated

and signed a seniority list with the Delta pilots which

was nearly identical to the list mandated by Delta man-

agement. While the list was also signed by Delta man-

agement, it was not made part of the collective bargain-

ing agreement since the merger representatives were not

authorized to bargain with Delta. The list was incorpo-

rated into a collective bargaining agreement several

months later, after plaintiffs filed suit requesting arbitra-

tion under the LPPs.

During the 5-month period of coercion and intimidation

against the Western pilots, ALPA repeatedly failed to

enforce its own Merger Policy or to intervene with Delta

on the pilots’ behalf to assure that the ALPA policy would

be enforced. ALPA made no attempt to rebuff Delta’s

totally unrealistic timetables for the integration process

which were three to seven months more accelerated than

the schedule in ALPA’s Merger Policy. When the West-

5

ern pilot committee advised the President of ALPA (him-

self a Delta pilot) of an “impasse” in the seniority nego-

tiations and requested the services of a mediator under

the ALPA Merger Policy, the President never responded.

The effect of Delta’s coercion and ALPA’s failure to

enforce its Merger Policy was devastating to the Western

pilots. A pilot’s place on the seniority list is the most

critical factor in his career. It affects his assigned base,

his position in the cockpit, the equipment he can fly, the

routes on which he can work, his compensation, and his

pension. Under the May 28 list, former Western pilots

fell below pre-merger Delta pilots who were hired many

years later and have substantially fewer years of service.

Near the bottom of the list, former Western pilots with

as many as five years of active service were placed on the

list below Delta probationary pilots who, at the time the

merger was announced, had never held a line assignment

with Delta or even qualified on any of Delta’s airplanes.

Even though the premerger Western Delta pilot ratio

was approximately 1 to 3, former Western pilots occupy

just 95 of the top 600 positions on the May 28 list. Over

time, the situation worsens. In a projection by plaintiffs

of the May 28 list to the year 2005, former Western pilots

_ will occupy just 5 of the top 600 positions, whereas under

a date of hire list, they would occupy 189 of the top 600

positions.

In June, 1987, in accordance with sections 3 and 13 of

the LPPs, plaintiffs protested the integrated seniority list.

They claimed that the list and the process used to inte-

grate the list were not fair and equitable as required by

the LPPs. They sought reformation of the list, and fail-

ing that, arbitration under the LPPs. Delta and ALPA

refused to reform the list. Plaintiffs then requested that

the National Mediation Board provide seven names from

which an arbitrator could be selected. When the Board

furnished the requested names, both ALPA and Delta

refused to participate in the selection process and the

arbitration.

r

9

In August, 1987 plaintiffs filed suit in the U.S. Dis-

trict Court for the Central District of California to en-

force Delta’s promise to arbitrate merger-related labor

disputes under the LPPs. Subject matter jurisdiction was

conferred by 28 U.S.C. §§ 1331, 1332, 1337, 2201. Plain-

tiffs sought to enforce the arbitration promise under the

Railway Labor Act, the Federal Arbitration Act, and

common law contract. Plaintiffs also asserted claims

against ALPA for breach of its duty of fair representa-

tion, inter alia, because of its failure to comply with its

own Merger Policy.

On May 12, 1988, the district court granted summary

judgment in favor of defendants Delta and ALPA (A.

9a). The court declared that neither the Railway Labor

Act, nor the Federal Arbitration Act, nor the LPPs pro-

vided plaintiffs with arbitration rights. The district court

denied plaintiffs’ Railway Labor Act claims on the theory

that the Act’s duty to maintain agreements and to arbi-

trate arises only with respect to disputes under collective

bargaining agreements and that the dispute did not in-

volve interpretation of a collective bargaining agreement.

Paradoxically, the court rejected plaintiffs’ Federal Ar-

bitration Act claim because it found the dispute concerned

a~collective bargaining agreement claim and thus fell

within the Act’s “contract of employment” exception.

The district court rejected plaintiffs’ showing that, even

in the presence of a union agreement, LPP arbitration

rights may be enforced if the disputed seniority list was

arrived at in bad faith, in a deliberate attempt to subvert

the LPP requirements, or in other compelling circum-

stances. The court disregarded plaintiffs’ claims of

Delta’s bad faith by stating that the coercion, intimida-

tion and threats by Delta were acceptable collective bar-

gaining practices. The court ignored plaintiffs’ conten-

tions that the coercion occurred during internal ALPA

negotiations and that the merger representatives did not

and could not bargain with Delta on the issue because

7

they were authorized to bargain only with each other—

not with the carrier. The district court, without any dis-

cussion of the facts, also granted summary judgment on

the unfair representation claim on the ground that ALPA

acted reasonably. The district court denied all other mo-

tions, including the motion to join additional plaintiffs

in the action.

Plaintiffs appealed to the Ninth Circuit. In a 7-page

unpublished opinion, the appeals court also declined to

enforce Delta’s promise to arbitrate (A.la!. It deter-

mined that plaintiffs could not enforce the promise under

the Railway Labor Act, 45 U.S.C. §§ 15la and 152 First

and Second, because it limited those sections to be ap-

plicable to disputes which arise out of collective bargain-

ing agreements. It also declined to enforce Delta’s arbi-

tration promise under the Federal Arbitration Act be-

cause Delta’s promise in the merger agreement was not

“a written agreement between the parties to arbitrate,”

and if it were, it would be excluded from FAA coverage

because it was “a contract of employment.” It did not

address the LPP precedent which authorizes arbitration

in the event of bad faith, and it also did not address

plaintiffs’ claims that the seniority list was a product of

Delta’s bad faith, coercion and intimidation.

REASONS FOR GRANTING THE WRIT

I. THE ISSUE OF WHETHER EMPLOYEES IN THE

AIRLINE INDUSTRY MAY ENFORCE AN EM-

PLOYER’S PROMISE TO ARBITRATE MERGER-

RELATED LABOR DISPUTES IS AN IMPORTANT

QUESTION OF FEDERAL LAW SINCE REGULA-

TORY AGENCIES NO LONGER IMPOSE OR EN-

FORCE ARBITRATION REQUIREMENTS

The decision of the lower court, if unreviewed, will

thwart the strong federal policy of enforcing agreements

to arbitrate. The importance of this policy favoring ar-

bitration was recently reaffirmed by this Court in the

area of pensions, Shearson Lchman/American Express v.

8

Bird, 110 S.Ct. 225 (1989), and securities transactions,

Rodriguez De Quijas v. Shearson/American Exzp., Inc.,

109 S.Ct. 1917 (1989). The Court should now enforce

this policy in the context of national transportation and

airline mergers.

The national policy in favor of arbitration is equally

strong under the Railway Labor Act (“RLA’”’), 45 U.S.C.

$§ 151-163, 181-188, and under the Federal Arbitration

Act (“FAA”), 9 U.S.C. §§ 1-13. In the labor law con-

text, this Court has stated:

(a}]n order to arbitrate .. . should not be denied un-

less it may be said with positive assurance that the

arbitration clause is not susceptible of an interpre-

tation that covers the asserted dispute. Doubts

should be resolved in favor of coverage.

AT&T Technologies, Inc. v. Communications Workers of

America, 475 U.S. 648, 650 (1986), quoting United

Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S.

574, 582-83 (1960).

Similarly, the FAA “establishes a ‘federal policy favor-

ing arbitration’ . . . requiring that ‘[courts] rigorously

enforce agreements to arbitrate’.” Shearson/American

Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332,

2337, reh’g denied, 483 U.S. 1056 (1987), quoting Moses

H. Cone Memorial Hosp. v. Mercury Const. Corp., 460

U.S. 1, 24 (19838), and Dean Witter Reynolds, Inc. v.

Byrd, 470 U.S. 218, 221 (1985). Under the FAA, “as a

matter of federal law, any doubts concerning the scope

of arbitrable issues should be resolved in favor of arbi-

tration. ...”’ Moses H. Cone, 460 U.S. at 24-25.

The lower court’s decision has created a large loophole

in the federal arbitration scheme where an employee’s

promise to arbitrate airline merger-related labor disputes

is not enforceable under either the RLA or the FAA.

This loophole is of national significance because such

9

promises to arbitrate have replaced arbitration orders

which, until recently, were imposed and enforced by the

federal agencies regulating the airline industry.

The result of the lower court’s loophole is much more

severe than in Rodriquez or Bird where the choice was

whether the dispute should be resolved through arbitra-

tion or formal court procedures. Here, as a result of

the lower court’s erroneous interpretation of the RLA

and FAA, the Jabor dispute arising under the merger

will not be resolved at all by any impartial tribunal. This

consequence is directly contrary to national labor policy

in general and to national transportation policy in par-

ticular, where the peaceful and prompt resolution of

labor issues has been declared to be in the national in-

terest.

For almost four decades, the Civil Aeronautics Board

(“CAB”), following the practice in the railroad industry

dating back to the 1930s, recognized that the merger

of air carriers is likely to causé labor disputes which

could cripple the surviving carrier’s transportation ca-

pacity and be detrimental to the national interest. Ac-

cordingly, in approving airline mergers, the CAB im-

posed Labor Protective Provisions (“LPPs’”’) upon the

surviving carrier. The form of LPPs became standard-

ized, along the lines of the Allegheny-Mohawk? LPPs

used in the Western Delta merger.

These LPPs gave the employees certain rights with

respect to transfers, moving allowances and seniority,

which are issues inherent in transportation mergers.

Among the rights provided was the right to arbitrate

any dispute arising under the LPPs. The purpose of the

LPP arbitration requirement was to resolve labor dis-

1 The history of the CAB’s imposition of LPPs in airline mergers

is recounted in United-Capital Merger Case, 33 C.A.B. 307, 323

n.71 (1961).

2 Allegheny-Mohawk Merger Case, 59 C.A.B. 19 (1972).

10

putes in a prompt, economical, and adequate fashion and

thereby to protect interstate commerce. These are the

same goals of the RLA and FAA.’

In the 1980s, the federal government changed its pol-

icy and declined to impose LPPs upon the merging car-

riers as a matter of course. See ALPA v. Department

of Transportation, 838 F.2d 563, 565 (D.C. Cir. 1988).

Instead, as in the Delta/Western merger at issue here,

the Department of Transportation (“DOT”), successor

to the CAB for these purposes, relied upon the adoption

of the LPPs by carriers involved. As of January 1, 1989,

DOT’s authority over airline mergers expired altogether,

see 49 U.S.C. App. § 1551(a) (7), and the legal under-

pinning for the issuance of LPPs expired with it.

Before this change in federal policy, enforcement of

the arbitration provisions in the LPPs was accomplished

in the first instance by petitions to the federal agency

which imposed the LPPs. Now, affected employees can

seek to enforce their arbitration rights only in federal

district court. By refusing to enforce the LPP arbitra-

tion clause under the FAA or the RLA, the lower court’s

decision effectively leaves employees without a remedy to

enforce arbitration rights if the employer reneges on

its arbitration promise, as Delta did here. Because the

issue of the arbitrability of airline merger seniority dis-

putes under LPPs is an important question of federal

law that will recur in other airline mergers, this Court

should grant the petition for certiorari.

3 Courts have noted that the enforcement of LPPs, and particu-

larly the LPP dispute resolution mechanism leading to arbitration,

employed labor law principles developed under the RLA. See Delta

Air Lines, Inc. v. CAB, 574 F.2d 546, 550-51 (D.C. Cir.), cert.

denied, 439 U.S. 819 (1978); Pan American World Airways, Inc.

v. CAB, 683 F.2d 554, 559 (D.C. Cir. 1982).

11

II. THE ARBITRATION OF LPP DISPUTES UNDER

THE RLA PRESENTS AN IMPORTANT QUESTION

OF FEDERAL LAW THAT WARRANTS REVIEW

BY THE COURT

In order to close the loophole opened by the court below,

the Court should review the enforceability of an em-

ployer’s arbitration promise under the RLA. The prom-

ise made by Delta here was the same Section 13 LPP

formulation formerly imposed by the regulatory agencies

that “‘any dispute or controversy . . . with respect to the

protections provided herein . . . may be referred by any

party to an arbitrator” (A.25a). The court below re-

fused to honor this promise because, in its view, the

RLA is applicable only to resolve disputes between unions

and employers which arise out of collective bargaining

agreements. It found no such disputes and, therefore,

refused to apply the RLA to permit individual employees

to enforce Delta’s arbitration promise.

First, the court below extinguished the RLA right to

arbitrate “any dispute” under the LPPs, including dis-

putes raised by employees or groups of employees other

than unions (A.3a-4a). In Allegheny-Mohawk, 59 C.A.B.

at 33, the CAB emphasized that under Section 13 a

party “has the unqualified right to demand arbitration

of any bona fide dispute of a nonfrivolous nature... .” 4

4 See Flying Tiger-Slick Merger Case, 18 C.A.B. 326, 347 (1954)

(“the arbitration provision provided by the Board in its labor pro-

tective clauses should be used to settle any dispute between em-

ployee groups as well as between employees and carriers’); Delta-

Chicago & Southern Merger Case, 16 C.A.B. 647, 655 (1952)

(““Moreover, there is nothing in the Delta-C&S proposal [Section

13] which would inhibit the right of a dissatisfied Delta employee

or group of such employees to seek arbitration of grievances

over integration of seniority lists.”); American-Trans Caribbean

Merger, CAB Order 71-5-30 at 4 (1971) (“any affected party has

the right to arbitrate any bona fide dispute of a non-frivolous

nature’); American-Trans Caribbean Merger, 60 C.A.b. 835, 837

n.4 (1972) (“clearly the provisions [LPP Section 13] were intended

to be applicable whether two or more parties are involved’’); Delta

12

The courts similarly have recognized the absolute right

to arbitrate disputes under Section 13 or similar provi-

sions. Delta Air Lines, Inc., v. CAB, 574 F.2d 546, 548

(D.C. Cir.), cert. denied, 489 U.S. 819 (1978) (Delta

“conceded its duty to arbitrate the seniority dispute upon

demand of dissatisfied stewardesses or their authorized

representative’); American Airlines, Inc. v. CAB, 445

F.2d 891, 894 (2d Cir. 1971), cert. denied, 404 U‘S.

1015 (1972) (either party has “the absolute right to

select arbitration’’).°

Second, the decision of the court below unlawfully re-

stricts the application of the RLA by confining that Act

to disputes arising out of collective bargaining agree-

ments (A.4a). This Court should grant review to con-

firm that the promise to arbitrate disputes under the

LPPs is enforceable directly under the RLA.

In 45 U.S.C. $ 152 First, the RLA imposes a duty upon

all carriers to:

exert every reasonable effort to make and maintain

agreements concerning rates of pay, rules, and work-

ing conditions, and to settle all disputes, whether

arising out of the application of such agreements or

otherwise, in order to avoid any interruption to com-

merce or to the operation of any carrier growing out

Air Lines, Employee Integration, 63 C.A.B. 700, 702 (1973)

(“Delta has conceded, at least initially, that it is under a duty

to arbitrate any unresolved seniority issue upon demand of any

dissatisfied former Northeast employee or group of employees, and

in our view that obligation is clear.’’).

5 See New Orleans & Northeastern R.R. Co. v. Bozeman, 312 F.2d

264, 268 (5th Cir. 1963) (“The language plainly means that either

party may make an election, binding on the other, to refer the

dispute to arbitration.”’) ; Jnt’l Brotherhood of Teamsters v. Texas

Int'l Airlines, 717 F.2d 157, 160 (5th Cir. 1983) (“They [LPPs]

require also that arbitration be available at the instance of any

employee or group of employees to resolve any dispute relating to

seniority integration or any other dispute about the application of

the labor protective provisions.’’).

13

of any dispute between the carrier and the employees

thereof. (Emphasis added)

See 45 U.S.C. § 15la (purposes of the Act).

A carrier’s duty under Section 152 First to “make and

maintain agreements” and to “settle all disputes” lies at

the “heart” of the RLA, and that obligation may be en-

forced “by appropriate judicial means.” Chicago &

Northwestern Ry. Co. v. Transportation Unien, 402 U.S.

570, 574, 581 (1971) (quoting in part Brotherhood of

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

369, 377 (1969)). The lower court’s holding is con-

trary to the express terms of the statute and is contrary

to the federal court’s duty to enforce the RLA. See ALPA

v. Transamerica Airlines, 817 F.2d 510, 514 (9th Cir.),

cert. denied, 484 U.S. 963 (1987); see also Int’l Ass’n of

Machinists v. Alaska Airlines, Inc., 813 F.2d 1038, 1040

(9th Cir. 1987) (federal courts have direct jurisdiction

over RLA claims where judicial enforcement is the only

means of enforcing the RLA).

In limiting Section 152 First to disputes that arise out

of collective bargaining agreements, the Ninth Circuit

apparently followed the district court’s analysis of the

RLA, which cited Chicago River & Indiana R.R. Co. v.

Brotherhood of R.R. Trainmen, 229 F.2d 926 (7th Cir.

1956), aff'd, 353 U.S. 30, reh’g denied, 353 U.S. 948

(1957). In Chicago River, the court held that the RLA

authorizes the issuance of injunctions to prevent strikes

over minor disputes. The passage relied upon by the dis-

trict court described the distinction between a major and

minor dispute. It was in reference to minor disputes that

the Chicago River court stated that “the act contem-

plates the existence of a collective agreement already

concluded.” 229 F.2d at 929. The court did not state or

even imply that a carrier’s duty under Section 152 was

limited to the settlement of minor disputes.

The dispute over plaintiffs’ right to arbitration under

the LPPs here is neither a “minor” nor a “major” dis-

alae

14

pute as the courts have employed those terms in RLA

decisions, because the LPP protections are independent

of the collective bargaining process. In these circum-

stances, the court has jurisdiction directly under the RLA

to address carrier and union violations of the LPPs. See

Chicago & Northwestern Ry., supra; Transamerica Air-

lines, supra; Brotherhood of Ry. Airline & Steamship

Clerks v. Atchison, Topeka and Santa Fe Ry. Co., 847

F.2d 403, 408 (7th Cir. 1988) (‘federal court may ex-

ercise jurisdiction over violations of the Railway Labor

act without regard to the court’s characterization of the

dispute as major or minor”’).

Third, the duty to settle disputes through arbitration

takes on even greater significance in this case where

plaintiffs claimed that the integrated seniority list was a

product of unlawful threats, intimidation and coercion

on Delta’s part and a breach of the duty of fair repre-

sentation on ALPA’s part.

In disregarding the Western pilots’ arbitral rights on

the ground that Delta and ALPA had reached an agree-

ment on the integrated seniority list, the Ninth Circuit

blinded itself to whether the means by which the list was

agreed upon vitiated the agreement itself. The court of

appeals followed the lead of the district court which er-

roneously held that Section 3 of the LPPs universally

bars arbitration where the carrier and the union have

agreed on a merged seniority list. Both courts ignored

the important exception carved out by the CAB, which

would allow arbitration despite a union-carrier agree-

ment “on a showing of bad faith .. . or other compelling

circumstances,” Delta-Chicago & Southern, 29 C.A.B. at

1349, or where the list was “tainted by the union’s breach

of its duty of fair representation,” Pan American-

Acquisition of Control of, and Merger with National,

CAB Order 82-4-75 at 3 (1982).°

® See American Airlines, Inc. v. CAB, 445 F.2d at 893 (court

upheld CAB arbitration order notwithstanding agreement between

15

The Ninth Circuit did not address the pilots’ prominent

argument that the agreement to the list was void because

it was secured by threats, intimidation, and coercion. It

also refused to address the pilots’ showing that even if

such duress was permissible as part of the give and take

of collective bargaining, no such collective bargaining took

place. The Western pilot representatives who received

Delta’s threats and signed the list were not ALPA col-

lective bargaining representatives and were not authorized

to enter into agreements with the carrier. They were

authorized only to reach agreement with the other pilot

group, after which the union’s authorized representatives

would attempt to bargain with Delta and to have the

agreement inserted in the collective bargaining agree-

ment. For this reason, Delta was able to exert its eco-

nomic power over the Western merger representatives

who lacked any authority or economic leverage to resist

Delta’s demands. If the lower court’s decision remains

unreviewed, an employer’s promise of arbitration, even

if otherwise enforceable under the RLA, could be made

hollow by using threats to force a pre-arbitration settle-

ment.’

American and the union representing American pilots); see also

Allegheny-Mohawk Merger Case (Complaint of Kingston and

Foster), CAB Order 79-11-53 at 14 (1979) (arbitration not ordered

where there was no defect in the ALPA merger procedures and no

interference by the carrier in the list merger process; carrier ‘‘as-

sumed a position of neutrality”).

7 The lower court also did not attempt to address the pilots’ claim

that the threats, coercion and intimidation were independent viola-

tions of 45 U.S.C. § 152 which requires carriers to exert every rea-

sonable effort to maintain agreements concerning labor conditions.

As the Court has recognized:

All the proceedings looking to amicable adjustments and to

agreements for arbitration of disputes, the entire policy of the

act, must depend for success on the uncoerced action of each

party through its own representatives to the end that agree-

ments satisfactory to both may be reached and the peace

16

Finally, the Jower court did not attempt to address the

pilots’ claim that ALPA violated its duty of fair repre-

sentation when it failed to follow its own internal pro-

cedures for merging the seniority lists. See Bernard v.

ALPA, 873 F.2d 213, 216 (9th Cir. 1988); Rogers v.

ALPA, No. H-84-3985 (S.D.Tex. Nov. 14, 1988); see

also Robesky v. Qantas Empire Airways Limited, 573

F.2d 1082, 1096 (9th Cir. 1978) (even non-hostile acts

of omission by union may breach duty of fair representa-

tion where they fall short of minimum standards of fair-

ness, prejudice employees, and do not relate to legitimate

union interests).

III. CERTIORARI SHOULD BE GRANTED TO RE-

SOLVE THE CONFLICT IN THE CIRCUITS CON-

CERNING THE SCOPE OF THE FAA’S ENFORCE-

MENT PROVISIONS

There is a dispute between the Ninth Circuit and

other circuits with respect to whether signatories to an

agreement are the only parties who may enforce an

agreement to arbitrate. The court below ruled that the

Western pilots could not rely upon the FAA because the

statute “is invoked oniy by a written agreement between

the parties to arbitrate” (A.5a). Apparently, the Court

concluded that because the Western pilots did not sign

the merger agreement, they were not parties to the

agreement who were entitled to enforce the employer’s

promise to arbitrate. This reasoning is contrary to the

terms of the statute which does not limit enforcement

to contract signatories. Instead it broadly states the

principle that a written provision to settle controversies

by arbitration shall be valid, irrevocable and enforce-

able. 9 U.S.C. §2. Other circuits considering the issue

essential to the uninterrupted service of the instrumentalities

of interstate commerce may be maintained.

Texas & N.O.R. Co. v. Brotherhood of Ry. & S.S. Clerks, 281 U.S

548, 569 (1930).

17

have decided that ordinary contract principles determine

who is bound by a promise to arbitrate and that the

parties involved need not be signatories. McAllister

Bros., Inc. v. A&S Transportation Co., 621 F.2d 519, 524

(2d Cir. 1980) ; Genesco, Inc. v. T. Kakiuchi & Co., 815

F.2d 840, 846 (2d Cir. 1987); Valero Refining, Inc. v.

1/T Lauberhorn, 813 F.2d 60, 63-64 (5th Cir. 1987).

Certiorari should also be granted to resolve the im-

portant federal question concerning the “contracts of em-

ployment” exclusion under the FAA. 9 U.S.C. § 1. The

court below, apparently drawing upon the district. court’s

incorrect holding that the LPPs are “indistinguishable

from a collective bargaining agreement” (A.15a), er-

roneously held that the merger agreement between West-

ern and Delta was a contract of employment and unen-

forceable under the FAA (A.5a). The court cited no

basis for this decision, which is contrary to the Court’s

“strong endorsement of the federal statutes favoring [ar-

bitration].” Rodriguez, 109 S.Ct. at 1920.

CONCLUSION

For these reasons, a writ of certiorari should be is-

sued to review the opinion and judgment of the Ninth

Circuit.

Respectfully submitted,

RAYMOND C, Fay

Counsel of Record

THOMAS R. GIBBON

BELL, BoyD & LLOYD

1615 L Street, N.W.

Suite 1200

Washington, D.C. 20036

(202) 466-6300

January 1990 Counsel for Petitioners

APPENDIX

APPENDIX TABLE OF CONTENTS

Memorandum, U.S. Court of Appeals, Ninth Circuit

Ne ic cckdetemnembennantowses

Order denying motion for remand, U.S. Court of Ap-

peals, Ninth Circuit (September 11, 1989) —..............

Memorandum of Decision and Order, U.S. District

Court, Central District of California (May 10,

Ds atk a1 aaa Ce

Minute Order denying motion pursuant to Fed. R. Civ.

P. 60(b) (2), U.S. District Court, Central District of

ee a sciincbinssecnninisonreenee

Text of Statutes Involved In This Case...

a) Railway Labor Act, 45 U.S.C. §§ 151a, 152 First.

b) Federal Arbitration Act, 9 U.S.C. §§ 1, 2,4 .....

Text of Delta-Western Labor Protective Provisions,

Sections 3 and 13 ........ ee ee ron = Se

I intumasibdbeasmnees

Page

la

8a

9a

la

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 88-6182

DC No. CV-87-5725-RJK

PATRICK A. HERRING, JR.; RICHARD A. BREMS;

JOSEPH HALEY; RONALD L. JENKINS, et al.,

Plaintiffs-Appellants,

Vv.

DELTA AIR LINES, INC.; AIR LINE PILOTS

ASSOCIATION, INTERNATIONAL,

Defendants-A ppellees.

Appeal from the United States District Court

for the Central District of California

Robert J. Kelleher, District Judge Presiding

Argued and Submitted: June 27, 1989

Pasadena, California

MEMORANDUM *

[Filed Oct. 13, 1989]

Before: NELSON and BOOCHEVER, Circuit Judges,

and BROWNING ** District Judge.

* This disposition is not appropriate for publication and may not

be cited to or by the courts of this circuit except as provided by

Ninth Circuit Rule 36-3.

** Hon. William D. Browning, United States District Judge for

the District of Arizona, sitting by designation.

2a

The plaintiffs-appellants, Patrick Herring and a group

of Delta Airline pilots, appeal the district court’s grant

of summary judgment to defendants-appellees, Delta Air

Lines, Inc., (“Delta”) and Air Line Pilots Association,

International, (**‘ALPA”). The plaintiffs-appellants also

appeal the district court’s denial of their motions to com-

pel discovery, io strike portions of declarations, and to

add more plaintiffs to their complaint. The district court

had jurisdiction pursuant to 28 U.S.C. $$ 1331, 1332,

1337, and 2201. The appellate court has jurisdiction pur-

suant to 28 U.S.C. § 1291. We review grants of sum-

mary judgment de novo. Eagle v. Am. Tel. & Tel. Co.,

769 F.2d 541, 547 (9th Cir. 1985). We review denials

of motions to compel discovery and to strike portions of

declarations for abuse of discretion. Draper v. Coombs,

792 F.2d 915, 924 (9th Cir. 1986). We review the denial

of leave to amend after a responsive pleading has been

filed for an abuse of discretion. Klamath-Lake Pharma-

ceutical Ass’n v. Klamath Medical Serv. Bureau, 701

F.2d 1276, 1292 (9th Cir.), cert. denied, 464 U.S. 822

(1983).

In 1986, two airlines, Delta and Western Airlines,

Inc., (“Western”), agreed to merge. As part of the mer-

ger agreement, Delta, the surviving entity, pledged to

negotiate an integration of the two pilot seniority lists

with ALPA, the pilots’ union. Both Delta’s pilots and

Western’s pilots were represented by ALPA. Delta stated

that the labor issues arising during implementation of

the merger would be performed according to a system of

industry practices known as labor protection provisions

(“ree ).

The integration of a seniority list involves much more

than listing pilots according to the date that each began

work. It encompasses such variables as the pilot’s rank

(e.g., captain, first officers, ete.), and the kind of aircraft

with which a pilot has had experience. Therefore, the al-

location of employment costs and benefits created by a

3a

merger is a difficult one. After strenuous negotiations,

management reached an agreement with the union. The

agreement was incorporated into the Delta-ALPA collec-

tive bargaining agreement.

This agreement was acceptable to most of the pilots

but was unacceptable to Herring and to a majority of the

pilots who formerly had fiown for Western. These pilots

seek to overturn the agreement between Delta and ALPA

and to send the matter to arbitration. They rest their

claim on numerous grounds. The pilots allege that: 1)

the appellees violated the LPPs; 2) the appellees violated

the Railway Labor Act (“RLA’”’); 3) the appellees vio-

lated the Federal Arbitration Act (“FAA”); 4) the ap-

pellees breached a contract in which the appellants were

third-party beneficiaries; and 5) ALPA did not fulfill its

duty of fair representation (“DFR’’) to appellants. We

affirm the judgments of the district court.

DISCUSSION

I. The Labor Protection Provisions Grounds

Originally, government regulatory agencies imposed

LPPs as a condition of allowing mergers between railway

systems. The LPPs served to protect the employees whose

job security could be altered through a merger. As sim-

ilar consolidations occurred in the airline industry, the

government standardized and imposed analogous LPPs.

Following the Airline Deregulation Act of 1978, the gov-

ernment no longer imposed LPPs. However, the parties

to a merger may adopt, as part of their agreement, these

standardized provisions. In this merger, the parties vol-

untarily accepted these standardized provisions.

Section 3 of the LPPs governs the integration of senior-

ity lists following a merger between two carriers. Sec-

tion 3 provides:

In so far as the merger affects the seniority rights

of the carriers’ employees, provisions shall be made

4a

for the integration of seniority lists in a fair and

equitable manner, including, where applicable, agree-

ment through collective bargaining between the car-

riers and the representatives of the employees af-

fected. In the event of failure to agree, the dispute

may be submitted by either party for adjustment in

accordance with Section 13.

Section 3 does not provide any grounds for the appellants’

argument. First, ALPA, not the appellants, is the rep-

resentative of the pilots for collective bargaining pur-

poses. Only the collective bargaining representatives (or

the carrier) may submit a dispute over the integration

of seniority lists to arbitration.’ Second, the record shows

that no dispute exists, in fact the parties’ negotiations

resulted in an agreement. Therefore, the LPPs provide

no grounds for the appellants’ action.

II. The Railway Labor Act Grounds

The appellancs claim that Delta and ALPA violated

the RLA, 45 U.S.C. § 15la and 152 First and Second.

These sections govern disputes between business organi-

zations and labor unions that arise out of a collective

bargaining agreement. Hendricks v. Airline Pilots Ass’n,

696 F.2d 673 (9th Cir. 1983). The sections are not ap-

plicable because this case presents no dispute between

Delta and ALPA. The appellants also allege that Delta

engaged in intimidating and coercive behavior that vio-

lated section 152 Third. This section provides that em-

ployees have a right to select a collective bargaining rep-

resentative without “interference, influence, or coercion”

from the carrier. Section 152 Fourth prohibits a carrier

from interfering with its employees’ right to join or to

refrain from joining a collective bargaining unit. ALPA

1 Additionally, the pilot’s representatives working on the merger

agreement could have asked ALPA for an arbitrator if they could

not agree. ALPA also could have requested an arbitrator if it

could not agree with Delta.

5a

is the only labor organization involved in this case and

neither Delta nor ALPA attempted to influence the pilots

to join or to leave ALPA or any other union. Therefore,

these RLA sections cited by the appellants are inappli-

cable.

The appellants also argue that Delta and ALPA vio-

lated the RLA by demoting Herring and that Delta vio-

lated the RLA by refusing to allow appellants to use

Delta pilot mailboxes to communicate regarding their

protests. No private cause of action exists under the

RLA for a group of employees who assert retaliatory

conduct based upon employee activities which bear no

relationship to establishing a union, or to employer ac-

tivities that bear no relationship to undermining a union.

Klemens v. Air Line Pilots Ass’n, Int’l, 736 F.2d 491, 496

(9th Cir.), cert. denied, 469 U.S. 1019 (1984). There-

fore, these allegations, even if true, do not constitute a

violation of the RLA in this situation.

III. The Federal Arbitration Grounds

Appellants also allege that the FAA, 9 U.S.C. §§ 1-14

required the appellees to arbitrate the seniority dispute.

This statute is invoked only by a written agreement be-

tween the parties to arbitrate. Moreover, the statute

specifically excludes from coverage “contracts of employ-

ment.” Therefore, the appellants’ reliance upon the FAA

is misplaced.

IV. The Third Party Beneficiary Grounds

The appellants argued that they, as individual em-

ployees, are third party beneficiaries of a contract be-

tween Western and Delta to provide LPPs. Under this

theory, Delta became liable to appellant when it breached

the LPPs. This argument fails because Delta did not

breach the LPPs, as we discussed above.

6a

V. The Duty of Fair Representation Grounds

The appellants contend that ALPA breached its duty

of fair representation (‘“‘DFR’) owed to them under the

RLA. They claim that the union breached this duty by

acting in “hostile, arbitrary, and invidious, and discrim-

inatory manner.” The appellants base this argument on

only unsupported statements that provide no concrete evi-

dence that ALPA breached the duty of fair representa-

tion. These statements are insufficient to survive the

ALPA’s summary judgment motion. The courts allow

a union a “wide range of reasonableness” in the conduct

of its representation of its members. It must be able to

focus on the needs of its whole membership without un-

due fear of law suits from individual members. Bautista

v. Pan American World Airways, 828 F.2d 546, 549 (9th

Cir. 1987). The integration of a seniority list is a diffi-

cult undertaking because of the inevitability that some

individual employees will be disadvantaged in comparison

to others. In these circumstances, a union does not

breach its duty of fair representation to others as long

as it proceeds on some reasoned basis. Clayton v. Repub-

lic Airlines, 716 F.2d 729 (9th Cir. 1983). Therefore,

the district court correctly granted summary judgment

to ALPA on this issue.

VI. The District Court’s Exercise of Discretion on

Appellants’ Motions

The appellants’ arguments that the district court

abused its discretion when it denied appellants’ motions

to compel discovery, to strike portions of declarations,

and to add more plaintiffs is without merit. The records

“show that the appellants did not pursue discovery dili-

gently before summary judgment. Brae Transp., Inc. v.

Coopers & Lybrand, 790 F.2d 1539, 1443 (sic) (9th Cir.

1986). If the portions of the ALPA declarations to

which appellants objected had been stricken, more than

sufficient evidence remained to justify summary judg-

7a

ment. California Architectural Bldg. Products, Inc. v.

Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th

Cir. 1987), cert. denied, 108 S.Ct. 698 (1988). The ad-

dition of more plaintiffs would have been a futile act

that would not have affected the issues underlying the

grant of summary judgment. Klamath-Lake Pharmaceu-

tical Ass’n, 701 F.2d at 1293. Therefore, the district

court did not abuse its discretion in denying appellants’

motions.

CONCLUSION

We AFFIRM the judgments of the district court.

8a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 88-6182

USDC No. CV 87-5725-RJK

PATRICK A. HERRING, JR.; RICHARD A. BREMS;

JOSEPH HALEY; RONALD L. JENKINS, et al.,

Plaintiffs-A ppellants,

V.

DELTA AIR LINES, INC.; AIR LINE PILOTS

ASSOCIATION, INTERNATIONAL,

Defendants-A ppellees.

ORDER

[Filed Sept. 11, 1989]

Before: NELSON and BOOCHEVER, Circuit Judges,

and BROWNING", District Judge.

Appellants’ motion for remand is DENIED.

* Hon. William D. Browning, United States District Judge for

the District of Arizona, sitting by designation.

9a

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

No. CV 87-5725-RJK (Tx)

PATRICK A. HERRING, JR., et al.,

Plaintiffs,

V.

DELTA AIR LINES, INC., and AIR LINE PILOTS

ASSOCIATION, INTERNATIONAL,

Defendants.

MEMORANDUM OF DECISION AND ORDER

[Filed May 11, 1988!

Before the Court are several motions, including each

party’s motion for summary judgment. At the hearing

of this matter on February 8, 1988, the Court stated its

inclination to grant the motions for summary judgment

filed by defendants Air Line Pilots Association, Inter-

national (“ALPA’’) and Delta Air Lines, Ine. (“Delta’’),

but afforded plaintiffs a final opportunity with which to

set forth genuine issues of material fact so as to avoid

summary judgment. The Court, having heard and read

the evidence, and having read and carefully considered

the filings submitted after the February 8, 1988 hearing,

makes its decision and order as follows:

(1) Defendant ALPA’s motion for summary judg-

ment is granted in full.

(2) Defendant Delta’s motion for summary judg-

ment is granted in full.

(3) All other motions before the Court are denied.

10a

(4) Each party is to bear its own costs for ali mo-

tions.

DISCUSSION

Cases of this nature were summed up perceptively by

then Circuit Judge, later Chief Justice, Burger, who

wrote: “By its very nature, the process of integrating

. two seniority-lists can sometimes lead to conse-

quences unfavorable to some.” Outline v. C.A.B., 284

F.2d 224, 228 (D.C.Cir. 1960). Many plaintiffs herein

are greatly dissatisfied with the consequences they face

as a result of the merger between their former employer

and Delta, as evidenced by their large turnout at the

February 8th hearing Nevertheless, as the Court then

stated, this is not a matter of great complexity. Even

if we are to accept plaintiffs’ characterization of the

events as true for purposes of defendants’ summary

judgment motions, there is no legal justification for this

Court to intervene into the agreement borne out of the

merger between Western Air Lines and Delta Air Lines.

COUNT 1

In Count 1, plaintiffs assert that Delta and ALPA vio-

lated both the Labor Protective Provisions (“LPPs’’)

and the Railway Labor Act (“RLA’’) by refusing to

arbitrate plaintiffs’ protest of the integrated seniority

list. As a matter of law, neither the LPPs nor the RLA

provide these plaintiffs with arbitration rights.

A. The LPPs

Plaintiffs rely heavily on § 13 of the LPPs. Section 13

is a general dispute resolution clause that covers a va-

riety of potential disputes which may arise out of a

merger. This is not, however, a general dispute. The

very situation that concerns us—a disputed seniority list

integration—is explicitly covered by $3 of the LPPs.

Section 3 provides:

lla

Insofar as the merger affects the seniority rights of

the carriers’ employees, provisions shall be made for

the integration of seniority lists in a fair and equi-

table manner, including, where applicable, agreement

through collective bargaining between the carriers

and the representatives of the employees affected.

In the event of failure to agree, the dispute may be

submitted by either party for adjustment in accord-

ance with Section 13.

Obviously, §3 supercedes the general dispute resolu-

tion of §13 when seniority list integration is at issue.

Moreover, arbitration of a seniority list integration dis-

pute is available under § 3 only when two conditions have

been met: (1) A “party” within the meaning of § 3

must invoke the arbitration mechanism outlined in § 13,

and (2) The “carrier and the representatives of the em-

ployees affected” must fail to agree on a list. The undis-

puted material facts show that neither condition oc-

curred.

Here, the “parties” are the carrier—Delta—and the

employees’ collective bargaining representative—ALPA.

Neither one of these parties sought to invoke § 13, and

they reached an agreement. The very language of the

LPPs denies plaintiffs the right to arbitration they claim

entitlement to. The LPPs confer no right on individual

employees, such as plaintiffs in this case, to submit their

disagreement with a negotiated seniority list to arbitra-

tion.

This construction is in accord with the consistent ad-

ministrative and judicial interpretation of identical

LPPs, which confirm that §3 does not contemplate sub-

mission of seniority list integration disputes to arbitra-

tion where the carriers and union have reached agree-

ment and the dispute is only among a group of the merg-

ing employees. See, e.g., Pan American-National, Order

No. 82-4-75, slip op. at 1 (“We have long held that,

pursuant to LPP § 3, the surviving carrier of a...

‘

12a

merger and the affected employees [via their representa-

tives of the RLA] are responsible for integrating senior-

ity lists. Only when the carrier and the employees’ rep-

resentatives disagree on seniority do we intrude, by en-

suring that the parties arbitrate.”).

B. The RLA

In Count 1 plaintiffs also allege that Delta’s and

ALPA’s refusal to arbitrate violated the RLA, appar-

ently contending that the RLA either imposes a duty to

arbitrate under the LPPs or to “engage in conference”’

concerning the plaintiffs’ protest. Plaintiffs rely on 45

U.S.C. §15la, §152 First and Second, which provide

generally for the “prompt and orderly settlement of dis-

putes concerning . . . working conditions,” and which

require carriers to “exert every effort to make and main-

tain agreements . . . and to settle all disputes [arising

thereunder }.”’

The plain language of §§ 15la and 152 make clear that

these sections do not require the carrier and collective

bargaining representative to resolve promptly eny dis-

pute that might arise, but instead are limited to com-

pelling prompt resolution of disputes arising out of a

collective bargaining agreement. As the court held in

Brotherhood of R.R. Trainmen v. Chicago River & In-

diana R.R. Co., 229 F.2d 926 (7th Cir. 1956), aff'd, 353

U.S. 30, reh’g denied, 353 U.S. 948 (1957), these pro-

visions contemplate “the existence of a collective bargain-

ing agreement already concluded,” and disputes which

relate either to the meaning or proper application of a

particular provision in such an agreement with a refer-

ence to a specific situation.

The dispute in this case does not involve the interpre-

tation of an existing collective bargaining agreement.

Instead, plaintiffs have attempted to raise a dispute be-

tween themselves and their collective bargaining repre-

sentative on the basis that ALPA should not have en-

13a

tered into the agreement concerning seniority integra-

tion. Such disputes are not covered by the express pro-

visions of the RLA. It is precisely for this reason that

courts have developed the doctrine of the duty of fair

representation which provides employees who are repre-

sented by a collective bargaining agreement with a

means of challenging the actions of the bargaining rep-

resentative under certain circumstances. The duty of

fair representation claim is discussed below under

Count 5.

Because, as a matter of law, neither defendant has

violated the RLA or breached the LPPs, they are each

entitled to summary judgment on Count 1.

COUNT 2

In Count 2, plaintiffs allege that in “intervening” with

the employee negotiations which were proceeding pur-

suant to ALPA merger policies, and in using “intimida-

tion” and “coercion,” defendants breached the LPPs and

the RLA. Even if plaintiffs’ characterization of defend-

ants’ conduct is accepted, such conduct does not violate

either the LPPs or the RLA.

In Count 2, plaintiffs rely not only on 45 U.S.C.

§§15la and 152 First and Second, discussed above, but

also on £152 Third and Fourth. A look at these sec-

tions shows that they do not apply here. Section 152

Third provides that employees have the right to select

a collective bargaining representative without “interfer-

ence, influence or coercion” from the carrier. Here, no

dispute exists concerning employee selection of a collec-

tive bargaining representative.

Section 152 Fourth states that a carrier shall not deny

the right of its employees to join or refrain from joining

a labor organization, and that it shall be unlawful for

the carrier to “interfere in any way with the organiza-

tion of its employees.” Again, ALPA was, and is, the

ee

l4a

plaintiffs’ union at all times, and Delta never once tried

to influence anyone to join or to not leave ALPA. There

is not even the suggestion that plaintiffs at any time

were attempting to organize a rival union.

On both accounts plaintiffs misconceive the purposes

and language of the Railway Labor Act. That language

refers only to influence and coercion with respect to the

selection of a collective bargaining representative. Inde-

pendent Union of Flight Attendants v. Pan American

World Airways, 789 F.2d 139 (2d Cir. 1986). It does

not purport to deal with conduct that takes place in the

collective bargaining process.

Further, even if the Court were to construe Delta’s

statements and conduct as “threats,” the courts have long

recognized that, in the context of collective bargaining,

economic threats to gain concessions at the bargaining

table are entirely lawful. First National Maintenance

Corp. v. NLRB, 452 U.S. 666 (1981). It is well settled

law that the process of labor negotiations is fundament-

ally one of “compromise and economic pressure.” NLRB

v. Amax Coal Co., 453 U.S. 322, 336 (1981). Because

the collective bargaining process necessarily contemplates

both the use and threatened use of economic weapons, the

courts have refused to rescind labor contracts which

might otherwise be considered coercive outside the con-

text of labor negotiations.

Here, Delta and ALPA reached agreement on an in-

tegrated seniority list. Absent unfair representation, the

RLA does not grant this Court jurisdiction over an un-

fair bargaining claim when the parties have bargained

and reached an agreement.

COUNT 6

In Count 6, plaintiffs contend that defendants violated

‘the Federal Arbitration Act (“FAA”), 9 U.S.C. $1 et

sey., by refusing to aribtrate the seniority dispute under

15a

the LPPs. Again accepting plaintiffs’ version of the facts,

defendants are entitled to summary judgment.

Section 2 of the FAA requires a written agreement to

arbitrate in order to invoke the Act. As was discussed

in the analysis of Count 1, the LPPs do not provide for

arbitration of the integrated seniority list at the request

of individuals when those individuals are represented by

a collective bargaining representative, and they do not

provide for arbitration at all in cases where the carrier

and the collective bargaining representative have agreed

upon a list. On this basis alone Count 6 fails.

Moreover, § 1 of the FAA specifically excludes ‘“con-

tracts of employment of seamen, railroad employees or

any other class of workers engaged in foreign or inter-

state commerce.” The statute does not specifically define

“contracts of employment,” but it is nonsensical to accept

plaintiffs’ argument that the LPPs are a commercial con-

tract and not a contract of employment.

The LPPs are designed specifically for the area of

mergers, and are for the protection of employees, They

are the subject of many cases in the labor area. In effect,

they are indistinguishable from a collective bargaining

agreement: they establish conditions and terms of em-

ployment for the benefit of an identifiable sroup; they

provide for collective bargaining over that term or con-

dition; and they set forth procedures for resolving dis-

putes if the union and employer cannot reach agreement.

Further, as in the context of a collective bargaining

agreement, in Count 5 plaintiffs allege that ALPA

breached its duty of fair representation in connection

with its negotiations over the integrated seniority list.

In short, the LPPs do not grant these plaintiffs a right

to invoke the Federal Arbitration Act, and defendants

should be granted summary judgment on Count 6.

l6a

COUNT 7

In Count 7, plaintiffs allege that they are third-party

beneficiaries of the agreement between Delta and West-

ern vo provide LPPs, and that because Delta “breached”

the LPPs they have a claim for breach of contract.

As discussed above, defendants did not breach the

LPPs. Since no breach occurred, plaintiffs cannot be the

beneficiaries of any such breached contract, and Count

7 fails.

COUNT 5

In Count 5, plaintiffs contend that ALPA breached its

duty of fair representation under the RLA by acting in

a “hostile, arbitrary, invidious, and discriminatory man-

ner.” Plaintiffs contend that their supplementary State-

ment of Genuine Issues of Material Fact helps demon-

strate that defendants’ summary judgment motions

should be denied. This document, however, simply sum-

marizes what plaintiffs claim to believe.

Similar tactics were rejected in a duty of fair repre-

sentation (“DFR”) suit in United Independent Flight

Officers, Inc. v. United Air Lines, Inc., 572 F. Supp. 1494

(N.D.Ill. 1983), aff'd, 756 F.2d 1274 (7th Cir. 1985).

There, the court held that “[pJ]laintiffs’ attempt to de-

velop their allegations by unsupported statements in their

memorandum opposing summary judgment” provided no

“concerete evidence” of a breach of the duty of fair rep-

resentation and could not defeat ALPA’s motion for sum-

mary judgment. /d. at 1508.

Here, plaintiffs’ DFR allegations are steeped in in-

nuendo. The facts show that ALPA was at no time

bound to arbitrate the integrated seniority list. In the

context of representing its members at the bargaining

table, a union must be allowed “a wide range of reason-

ableness” because it must be able to “focus on the needs

of its membership as a whole without undue fear of law-

17a

suits from individual members disgruntled by the result

of the collective process.” Bautista v. Pan American

world (sic) Airways, 828 F.2d 546, 549 (9th Cir. 1987).

ALPA’s conduct fell well within the “wide range of rea-

sonableness” the Court must accord it. “Partisan ex-

hortation delivered under conditions of conflict” are not

the basis of a DFR suit. Jd. at 551.

There is a body of cases extant which deals with DFR

suits within the integration of seniority lists-merger area.

See, e.g., Humphrey v. Moore, 375 U.S. 335 (1962).

These cases have observed that within this context, it is

almost inevitable that some individuals will be injured,

and that even where the same union represents both

bodies of employees, it does not breach its DFR to in-

dividual members so long as it proceeds on some reasoned

basis. Clayton v. republic (sic) Airlines, 716 F.2d 729

(9th Cir. 1983). The facts, when sifted from the innu-

endo, show that ALPA at the very least met this stand-

ard and is entitied to summary judgment on Count 5.

COUNTS 3 & 4

Count 3 alleges that by demoting Herring, Delta vio-

lated the RLA, and adds in an allegation that ALPA

participated in this violation. Count 4 alleges that Delta

(ALPA is not named in Count 4) violated the RLA by

refusing to allow plaintiffs to use Delta pilot mailboxes to

communicate regarding their protest.

There is absolutely no evidence to tie in ALPA to the

alleged facts in Count 3, and they are entitled to sum-

mary judgment on that basis. Moreover, defendants are

entitled to summary judgment on Counts 3 and 4 be-

cause both the pvlain language of the RLA and the cases

decided thereunder make clear that the RLA does not

cover the activity alleged. These plaintiffs were not en-

gaged in union-related activity, as is required if one

wishes to state a private cause of action under the RLA.

There are no controlling cases, including the cases cited

18a

by plaintiffs in their papers, that hold that a private

cause of action exists under the RLA for a group of em-

ployees who assert retaliatory conduct based upon activi-

ties which bear no relationship to organizing to establish

a union or company activity designed to undermine a

union.

THEREFORE, IT IS ORDERED that each defend-

ant’s motion for summary judgment be GRANTED. IT

IS FURTHER ORDERED that all other motions before

the Court are DENIED. Each party is to bear its own

costs for all motions.

The Clerk shall send, by United States mail, a copy of

this Memorandum of Decision and Order to counsel for

the parties.

DATED: May 10, 1988.

‘s/ Robert J. Kelleher

ROBERT J. KELLEHER

Senior Judge

19a

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. CV 87-5725-RJK

PATRICK HERRING, et al.

Vv.

DELTA AIR LINES, INC., et al.

Present: HON. ROBERT J. KELLEHER, Judge

JAMES A. KIMBALL, Deputy Clerk

CIVIL MINUTES—GENERAL

July 25, 1989

PROCEEDINGS: Plaintiffs’ Motion for Relief from

Judgment Pursuant to Fed.R.Civ.P.

60 (b) (2)

THE COURT has before it plaintiffs’ motion for relief

from judgment pursuant to Federal Rule of Civil Pro-

cedure 60(b) (2) and defendants’ opposition thereto. Said

motion was taken under submission on July 17, 1989, the

parties having waived oral argument pursuant to Local

Rule 7.11.

By this motion plaintiffs seek to reopen the Court’s

Order of May 12, 1988 granting summary judgment in

favor of defendants on all counts. Plaintiffs have ap-

pealed the Order, and their appeal is presently pending.

The filing of the notice of appeal divests this Court of

jurisdiction to dispose of a Rule 60(b) motion absent a

20a

remand from the Court of Appeals. Long v. Bureau of

Economic Analysis, 646 F.2d 1310, 1318 (9th Cir. 1981) ;

Smith v. Lujan, 588 F.2d 1304, 1307 (9th Cir. 1979).

The Court is therefore limited to indicating whether it

will entertain or grant the motion. Jd.

IT IS HEREBY ORDERED that the Court will not

entertain or grant plaintiffs’ motion.

The Clerk will send a copy of this Order to counsel.

/s/ JAK

Initials of Deputy Clerk

21a

STATUTORY PROVISIONS

RAILWAY LABOR ACT

$15la. General purposes

The purposes of the chapter are: (1) To avoid any

interruption to commerce or to the operation of any car-

rier 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 employees to join a labor organization; (3) to provide

for the complete independence of carriers and of em-

ployees in the matter of self-organization to carry out

the purposes of this chapter; (4) to provide for the

prompt and orderly settlement of ali disputes concerning

rates of pay, rules, or working conditions; (5) to provide

for the prompt and orderly settlement of all disputes

growing out of grievances or out of the interpretation or

application of agreements covering rates of pay, rules, or

working conditions.

§ 152. General duties

First. Duty of carriers and employees to settle disputes

It shall be the duty of all carriers, their officers, agents,

and employees to exert every reasonable effort to make

and maintain agreements concerning rates of pay, rules,

and working conditions, and to settle all disputes, whether

arising out of the application of such agreements or other-

wise, in order to avoid any interruption to commerce or

to the operation of any carrier growing out of any dis-

pute between the carrier and the employees thereof.

22a

FEDERAL ARBITRATION ACT

$1. “Maritime transactions” and “commerce” defined;

exceptions to operation of title

“Maritime transactions’, as herein defined, means char-

ter parties, bills of lading of water carriers, agreements

relating to wharfage, supplies furnished vessels or repairs

to vessels, collisions, or any other matters in foreign

commerce which, if the subject of controversy, would be

embraced within admiralty jurisdiction; “commerce’’, as

herein defined, means commerce among the several States

or with foreign nations, or in any Territory of the United

States or in the District of Columbia, or between any

such Territory and another, or between any such Terri-

tory and any State or foreign nation, or between the Dis-

trict of Columbia and any State or Territory or foreign

nation, but nothing herein contained shall apply to con-

tracts of employment of seamen, railroad employees, or

any other class of workers engaged in foreign or inter-

state commerce.

$2. Validity, irrevocability, and enforcement of agree-

ments to arbitrate

A written provision in any maritime transaction or a

contract evidencing a transaction involving commerce to

settle by arbitration a controversy thereafter arising out

of such contract or transaction, or the refusal to perform

the whole or any part thereof, or an agreement in writ-

ing to submit to arbitration an existing controversy aris-

ing out of such a contract, transaction, or refusal, shall

be valid, irrevocable, and enforceable, save upon such

grounds as exist at law or in equity for the revocation

of any contract.

23a

$4. Failure to arbitrate under agreement; petition to

United States court having jurisdiction for order

to compel arbitration; notice and service thereof;

hearing and determination

A party aggrieved by the alleged failure, neglect, or re-

fusal of another to arbitrate under a written agreement

for arbitration may petition any United States district

court which, save for such agreement, would have juris-

diction under Title 28, in a civil action or in admiralty

of the subject matter of a suit arising out of the contro-

versy between the parties, for an order directing that

such arbitration proceed in the manner provided for in

such agreement. Five days’ notice in writing of such ap-

plication shall be served upon the party in default. Serv-

ice thereof shall be made in the manner provided by the

Federal Rules of Civil Procedure. The court shall hear

the parties, and upon being satisfied that the making of

the agreement for arbitration or the failure to comply

therewith is not in issue, the court shall make an order

directing the parties to proceed to arbitration in accord-

ance with the terms of the agreement. The hearing and

proceedings, under such agreement, shall be within the

district in which the petition for an order directing such

arbitration is filed. If the making of the arbitration

agreement or the failure, neglect, or refusal to perform

the same be in issue, the court shall proceed summarily

to the trial thereof. If no jury trial be demanded by the

party alleged to be in default, or if the matter in dispute

is within admiralty jurisdiction, the court shall hear and

determine such issue. Where such an issue is raised, the

party alleged to be in default may, except in cases of

admiralty, on or before the return day of the notice of

application, demand a jury trial of such issue, and upon

such demand the court shall make an order referring the

issue or issues to a jury in the manner provided by the

Federal Rules of Civil Procedure, cr may specially call a

jury for that purpose. If the jury find that no agree-

24a

ment in writing for arbitration was made or that there

is no default in proceeding thereunder, the proceeding

shall be dismissed. If the jury find that an agreement

for arbitration was made in writing and that there is a

default in proceeding thereunder, the court shall make

an order summarily directing the parties to proceed with

the arbitration in accordance with the terms thereof.

25a

DELTA-WESTERN

LABOR PROTECTIVE PROVISIONS

Section 3. Insofar as the merger affects the seniority

rights of the carriers’ employees, provisions shall be

made for the integration of seniority lists in a fair and

equitable manner, including, where applicable, agreement

through collective bargaining between the carriers and

the representatives of the employees affected. In the

event of failure to agree, the dispute may be submitted

by either party for adjustment in accordance with sec-

tion 13.

Section 13. (a) In the event that any dispute or con-

troversy (except as to matters arising under section 9)

arises with respect to the protections provided herein,

which cannot be settled by the parties within 20 days

after the controversy arises, it may be referred by any

party to an arbitrator selected from a panel of seven

names furnished by the National Mediation Board for

consideration and determination, Unless an extension of

time is agreed upon in writing by all parties, the party

desiring arbitration shall give the other party or parties

and the National Mediation Board written notice of the

party’s decision to invoke arbitration no later than 45

days after the controversy arises. The parties shall

select the arbitrator from such panel alternately strik-

ing names until only one remains, and he shall serve as

arbitrator. Expedited hearings and decisions will be

expected, and a decision shall be rendered within 90 days

after the controversy arises, unless an extension of time

is mutually agreeable to all parties. The salary and ex-

penses of the arbitrator shall be borne equally by the

carrier and (i) the organization or organizations rep-

resenting the employee or employees, or (ii) if unrepre-

sented, the employee or employees or group or groups of

employees. The decision of the arbitrator shall be final

and binding on the parties.

26a

(b) The above condition shall not apply if the parties

by mutual agreement determine that an alternative

method for dispute settlement or an alternative proce-

dure for selection of an arbitrator is appropriate in their

particular dispute. No party shall be excused from com-

plying with the above condition by reason of having sug-

gested an alternative method or procedure, unless and

until that alternative method or procedure shall have

been agreed to by all the parties.

_ —_aar

27a

LIST OF PETITIONERS

PURSUANT TO RULE 14.1(b)

Aakhus, Donovan E.

Abel, Richard C.

Adams, Robert A.

Akana, Akaiko A.

Allen, Jack L.

Allen, R.E.

Allen, Robert J.

Allen, Thomas R.

Alley, Michael L.

10. Amos, Walter N.

11. Anderson, Clarence A.

12. Anderson, J. Eric

13. Archer, Gregg B.

14. Arnold, Ronald J.

15. Arps, Stephen G.

16. Asay, Donald E.

17. Ashworth, David B.

18. Attwood, Guy E.

19. Avary, Donald D.

20. Aversman, James R.

21. Azemard, Anthony

22. Baccitich, David J.

23. Bagley, Kent K.

24. Baker, Harry C.

25. Baker, Lawrence E.

26. Bokos, Thomas M.

27. Banks, Richard A.

28. Barnhart, James R., Jr.

29. Barnum, Lewis, III

30. Barstow, James L.

31. Bartz, Charles E.

32. Bastiani, James

33. Bauer, David

34. Bauer, Philip G.

35. Bauer, Russell B.

36. Beal, David R.

BWHNAar op

a

37.

38.

39.

40.

41.

42.

43.

44.

45.

46.

47.

48.

49.

50.

51.

52.

53.

54.

55.

56.

57.

58.

59.

60.

61.

62.

63.

64.

65.

66.

67.

68.

69.

70.

71.

72.

73.

74.

28a

Beck, Richard A.

Bell, William W.

Bendik, Car] M.

Bennett, Robert W.

Benson, Jerome A.

Benton, Douglas A.

Berens, Roger J.

Berryhill, Joseph A.

Best, Henry G.

Betts, Charles C.

Bibb, Harry L., Jr.

Birch, Frederick R.

Bishop, Ross M.

Black, Eugene R.

Blackman, Douglas E.

Blair, Thomas W.

Blake, A.G.

Blandford, John R.

Bodmer, John A.

Bodnar, James J.

Boline, Laurel F.

Bone, John R.

Bonfiglio, Peter, Jr.

Booher, Bruce R.

Boschetto, Dale N.

Boswell, Lance

Bourland, D.L.

Boyce, A.W.

Bradfield, Richard C.

Brady, John M.

Brant, William C.

Brems, Richard A.

Brennan, George A., Jr.

Brennan, James W.

Brickert, Richard T.

Brigham, Don

Brittenham, John C.

Brown, Frank D.

29a

75. Brown, John Michael

76. Brown, Robert D.

77. Browne, Paul D.

78. Brushwylor, Robert

79. Buck, Peter D.

80. Buckelew, Arthur L.

81. Buechler, Richard P.

82. Buisson, James L.

83. Burgess, Jerald C.

84. Burkland, R.W.

85. Burnett, Gerald R.

86. Burns, John E.

87. Burrell, Russell K.

88. Burson, Gene Douglas

89. Busby, Leon R.

90. Bush, Jack B.

91. Butler, Ronald V.

92. Byrne, Charles R.

93. Byron, A.W.

94. Bytheway, Alvin R.

95. Calderon, Kenneth A.

96. Cameron, Murdo O.

97. Campbell, Donald E.

98. Cardon, Vern R.

99. Carollo, Robert A.

100. Carrol, Paul L., Jr.

101. Carter, D.L.

102. Cartwright, Allan L.

103. Castle, C.N.

104. Causey, O.H.

105. Cecka, R.J.

106. Chakerian, Gregory V.

107. Chamberlin, Alvin W.

108. Chambers, Jack P.

109. Chambre’, Rudy R.

110. Chapman, Donald Ray

111. Chapman, Duane

112. Cheney, C.J.

I seacetineneeeteeeenaiiill

113.

114.

115.

116.

117.

118.

119.

120.

121.

122.

123.

124.

125.

126.

127.

128.

129.

130.

131.

132.

133.

134.

135.

136.

137.

138.

139.

140.

141.

142.

143.

144.

145.

146.

147.

148.

149.

150.

30a

Clark, Glen D.

Clark, John M.

Clausen, Christian M.

Clounch, Mark R.

Coe, K.M.

Cole, Richard D.

Colette, Thomas J.

Collins, Clifton M.

Collins, Marshall W.

Coln, William A., III

Compton, Raymond D.

Connel, Allan A., III

Cook, H.K.

Cook, Martin T.

Cook, Wendell L.

Cook, William S.

Cope, James M.

Coxe, Charles R.

Crawford, Thomas P.

Creeden, Wilcox J.

Cullem, Daniel F.

Davies, Donald E.

Davila, Manuel

Davis, Edward H.

Davis, Gale C.

Davis, Robert B.

Davis, T.H.

Deakers, Richard P.

Degnan, James E.

DeLong, Roger L.

Delzer, L.C.

Demosthenes, T.A.

Dent, C.S.

Der Manuel, E.M.

Detwiler, Mark J

DeVaney, Daniel T.

DeVaney, Roy W., Jr.

Diehl, Ross E.

3la

151. Dishon, Larry E.

152. Doherty, Francis A.

153. Doiron, W. David

154. Dorris, John D.

155. Douglass, Clement J., III

156; Dowell, Lester R.

157. Doyle, Michael A.

158. Dressler, David C.

159. Duncan, Roderick M.

160. Dunlap, James V.

161. Dunn, Edward D.

162. Duran, Frank T.

163. Duricka, Richard M.

164. Edson, Robert A.

165. Edwards, Monte R.

166. Eldred, Clarence W.

167. Elin, Richard A.

168. Ellis, Ernest F.

169. Ellison, Martin D.

170. Ellmore, C.A.

171. Elmore, Jerry O.

172. Elsner, Bernard M.

173. Elstad, Erik L.

174. Engel, Robert D.

175. Erwin, William T.

176. Etter, George W.

177. Eustis, James B.

178. Evans, Earl E., Jr.

179. Evans, Stuart C.

180. Everson, Ken W., Jr.

181. Exley, Ronald W.

182. Farrell, Robert J.

183. Ferg, Richard G.

184. Ferguson, James T., III

185. Fernandez, Peter S.

186. Fernandez, Ralph E.

187. Ferrell, H. Lee

188. Ferrell, Mallory H., Jr.

32a

189. Ferris, Roger E.

190. Finnegan, John M.

191. Flaherty, George F.

192. Flandreau, Donald H.

193. Fletcher, Ferinand E.

194. Fletcher, Steve

195. Forster, Thomas L.

196. Foster, David V.

197. Fowler, Arthur H.

198. Fowler, Steve

199. Fox, Jim

200. Franks, Stanley K., Jr.

201. Freeding, Richard A., Jr.

202. Frey, T.E.

203. Frye, Arthur R.

204. Fuller, Roger Dell, Jr.

205. Gaeb, H. Michael

206. Gaillard, William B.

207. Gaines, Alan L.

208. Gallagher, J.P.

209. Gallagher, William R., Jr.

210. Gerrior, William P.

211. Gibbons, James A.

212. Gibbs, James Paul

213. Giery, Patrick J.

214. Gilbert, Ronald G.

215. Gillease, Dennis B.

216. Gillespie, A.A.

217. Gilmore, Ronald G.

218. Givens, Williams G.

219. Glazar, Richard C.

220. Glazier, Patrick M.

221. Goggin, John L., Jr.

222. Goldt, Thomas G.

223. Goltry, W.H.

224. Gomez, Alfred, Jr.

225. Gonzales, Dennis M.

226. Gorrell, Don L.

33a

227. Gottschalk, Gary L.

228. Graff, Randall M.

229. Grammer, Bryan K.

230. Graue, James T.

231. Gray, Michael Lewis

232. Greenwood, Jeffrey G.

233. Grimditch, William H.

234. Grippo, Lawrence A.

235. Grohs, Joseph M.

236. Grose, Dennis R.

237. Grundy, Joel R.

238. Guest, Raymond R.

239. Guiton, Leonard A., Jr.

240. Gullickson, Reese E.

241. Gustaveson, Roy C.

242. Haas, Tallmadge J.

243. Halcomb, Robert D., Jr.

244. Hales, Dent

245. Haley, Joseph

246. Hall, Edward M.

247. Hallinen, John C.

248. Hallor, A.E.

249. Hallsman, Charles

250. Hamilton, Roger L.

251. Hannan, Michael T.

252. Hanson, David E.

253. Harbold, Dean R.

254. Harman, Barry W.

255. Harrison, John C.

256. Hartman, William

257. Harwood, James C.

258. Hash, George J.

259. Hathcock, Richard B.

260. Hayes, James L.

261. Hearn, R.A.

262. Heatherly, James C.

263. Hedges, Grant K.

264. Heinrich, Edwin C., Jr.

I ilies

265.

266.

267.

268.

269.

270.

271.

272.

273.

274.

275.

276.

277.

278.

279.

280.

281.

282.

283.

284.

285.

286.

287.

288.

289.

290.

291.

292.

293.

294.

295.

296.

297.

298.

299.

300.

301.

302.

34a

Heintz, Kenneth H.

Heinz, H.C., Jr.

Helker, Harlen J.

Hellwig, Erwin Douglas

Hemminger, John A.

Herring, Patrick A., Jr.

Herrington, Norman L.

Herriott, Robert P.

Hicks, Gerald F.

Hill, Robert Daniel

Hines, Johnny H.

Hitcheock, Thomas .

Hoffman, Peter T.

Hoffman, William C.

Hogan, John V.

Holiday, Ray K.

Homann, Robert L.

Honeycutt, Jimmy L.

Horrell, Roger T.

Horton, Larry F.

Hoskins, Lonnie, Jr.

Houdeshel, Harry F., III

Housel, Herschel C.

Howatt, J.O.

Hoyt, Lewis E.

Huerta, J. Jess

Hunter, Thomas E., Jr.

Hymel, Philip J.

Ice, Willard F., Jr.

Interrieden, Richard L.

Insogna, Dominic M.

Inzana, Anthony F., II

Isler, Robert T.

James, Tommy L.

Jeffery, Kirk W.

Jeffrey, Kent A.

Jella, Jeffrey D.

Jenkins, Ronald L.

35a

303. Johnson, Christopher W.

304. Johnson, David C.

305. Johnson, Dennis A.

306. Johnson, Donald M., Jr.

307. Johnson, Kenneth L.

308. Johnson, Lance J.

309. Johnson, Linn V.

310. Johnson, Mark L.

311. Johnson, Richard A.

312. Johnson, Scott L.

313. Jones, John Douglas

314, Jones, Walter B.

315. Jones, William Larry

316. Jorgensen, Stanley Alfred

317. Joslyn, Wilbert C.

318. Just, Peter G.

319. Kaminski, Steve

320. Kastler, Mark N.

321. Katka, Doran W.

322. Keesey, I.L.

323. Keliy, Budd J.

324. Kennedy, Michael E.

325. Kerr, David T.

326. Keyes, Jack L.

327. Kimbrel, Michael G.

328. Kisla, Daniel F.

229. Knutson, James D.

330. Komberec, C.R.

331. Koski, Duane M.

332. Koster, Kenneth K.

333. Kowalzyk, Dennis J.

334. Kramer, David W.

335. Kratzer, Frank

336. Krayniak, George L.

337. Krebs, Richard G.

338. Kuntz, Gordon B.

339. Lagomarsino, Dan A.

340. Landroth, Dale M.

b

etal

341.

342.

343.

344.

345.

346.

347.

348.

349.

350.

351.

352.

353.

354.

355.

356.

357.

358.

359.

360.

361.

362.

363.

364.

365.

366.

367.

368.

369.

370.

371.

372.

373.

374.

375.

376.

377.

378.

36a

LaPierre, Valmere M.

Laraux, Charles

Larsen, Mark H.

Law, C.W.

Layman, Phillip B.

Lecy, H.E.

Leddy, P.F.

Lee, John B.

Lentz, Gregory P.

Leseberg, Mark, E.

Lewis, Donald W.

Lewis, Robert H.

Lindquist, Robert M.

Little, Frank R.

Loeber, A. Wayne

Loucka, William M.

Lovell, William C., Jr.

Lowenberg, Larry W.

Loyd, Tracy E.

Lugar, Jeffrey R.

Luger, Jerome R.

Lundblad, Kurt D.

Luplow, Kenneth B.

Lyon, David E.

Lyon, Robert G., Jr.

Lyons, Terence

MacKenzie, J.D.

MacLean, William

Maddox, Donald L.

Madigan, Edwin F.

Magnell, Michael K.

Maher, Michael P.

Mainwaring, Stephen A.

Malone, D.P.

Mantei, Ronald H.

Margolin, Donald B.

Marshall, Sheff

Martin, Daryl T.

37a

379. Martin, Richard D.

380. Mason, Wallace J.

381. Massey, Calvin L., Jr.

382. Mather, David R.

383. Mayer, John S.

384. Maxey, W.R.

385. McAdams, John A.

386. McCarthy, Matthew A.

387. McCauley, Keith C.

388. McCrary, Richard A.

389. McCready, James L.

390. McCullough, Charles J.

391. McDole, Joe C.

392. McDonald, Clinton R.

393. McDonald, Gerald H.

394. McGaw, William A.

395. McGee, Michael R.

396. McGibney, Michael D.

397. McGrath, P.R.

398. McGuire, Fay W.

399. McHargue, Gary R.

400. McKelvey, David J.

401. McKinnon, Alan J.

402. McLaughlin, John E.

403. McMahan, William R.

404. McMillan, Gerald M.

405. MeMullen, William T.

406. Means, Don R.

407. Meier, L. Duane

408. Melton, Michael L.

409. Merena, David Bruce

410. Messmore, Michael H.

411. Messner, Michael W.

412. Meyers, James Y.

413. Miller, Gary L.

414. Miller, Harlan L., Jr.

415. Milliken, John L., Jr.

416. Miltner, John H.

417.

418.

419.

420.

421.

422.

423.

424.

425.

426.

427.

428.

429.

430.

431.

432.

433.

434.

435.

436.

437.

438.

439.

440.

441.

442.

443.

444.

445.

446.

447.

448.

449.

450.

451.

452.

453.

454.

38a

Misevic, Bruno V.

Moeller, Terry J.

Mongold, Joe W.

Monroe, Robert S.

Moody, J.D.

Moore, Arthur A.

Moore, Edward L.

Morrison, Alexander J.

Mosdale, Kent B.

Moyer, Gilbert, Jr.

Mrak, John R.

Mueller, Rodney A.

Muesegaes, Fred G.

Mullan, Brian F.

Mullen, David D.

Mullin, Michael

Mumford, Richard

Munton, James W.

Murphy, James C.

Myli, Howard O.

Nagy, Steve B.

Neff, Evan A.

Nelson, Jack L.

Nelson, Ronald L.

Nevitt, James E.

Newlon, Gene W.

Nichols, Peter D.

Nielson, Frederick P.

Nilsson, Mervin

Norstrom, John S.

Norton, Lynn M.

Oberg, Seth M.

O’Brien, Jerold

O’Brien, Martin J.

O’Dell, Thomas M.

O’Gara, Michael L.

Olbright, Lawrence D.

Onion, Brad

455.

456.

457.

458.

459.

460.

461.

462.

463.

464.

465.

466.

467.

468.

469.

470.

471.

472.

473.

474.

475.

476.

477.

478.

479.

480.

481.

482.

483.

484.

485.

486.

487.

488.

489.

490.

491.

492.

39a

Orgera, Winthrop B.

Osburn, S.R.

Paciolla, Anthony F.

Pack, David E.

Palmer, William Ware, III

Pankratz, Richard L.

Patton, Hersch

Paulsen, Paul E.

Pedrazzini, Donald J.

Peel, Dale F.

Penrose, Michael P.

Peri, Edward L.

Peterman, Joseph A.

Peters, Gordon E.

Peterson, Larry W.

Pfister, Henry C., Jr.

Picard, Robert D.

Pierce, Louis R.

Pierce, Richard S.

Pierce, Robert A.

Piland, Ray G.

Pittman, James R.

Plummer, David A.

Poland, Peter A.

Pollak, James E.

Pollock, Robert D., Jr.

Poplet, Keith R.

Poschwatta, Carl L.

Poste, James D.

Potter, Gerald G.

Potter, Harold R.

Poust, Charles E.

Powell, Leo V., III

Prentke, Lawrence A.

Primich, Charles G.

Prosch, Thomas J.

Quilter, Charles John, II

Rajala, Orlin John

40a

493. Rand, William C.

494. Ransford, Dale E.

495. Ray, R.E.

496. Reaume, Ronald R.

497. Rector, John C.

498. Reed, David L.

499. Reed, Gary L.

500. Reed, Peter T.

501. Rees, Paul J.

502. Reinhard, David J.

503. Rhoades, C.A.

504. Rhymers, Craig A.

505. Rich, Ronald P.

506. Richardson, Harold J.

507. Richardson, Terril J.

508. Rinderknecht, Ronald T.

509. Rinehart, Terry L.

510. Roberson, Floyd

511. Robertson, Wesley L., III

512. Robinson, Charles E., Jr.

513. Rockness, Norman P.

514. Rogers, Gordon G.

515. Rosenberg, Stephen M.

516. Ross, M.E.

517. Rottschafer, Gerald Jay

518. Roy, Allan H.

519. Royall, Michael B.

520. Rozema, Melvin A.

521. Ruminer, William L.

522. Rusher, Robert C.

523. Salz, Les

524. Saner, Carl M.

525. Saporito, J.N.

526. Sap ennis J.

527. Scan James P.

528. Schachle, P.J.

529. Scheinblum, Robert P.

530. Schmid, Robert

531.

532.

533.

534.

535.

536.

537.

538.

539.

540

541.

542.

543.

544.

545.

546.

547.

548.

549.

550.

551.

552.

553.

554.

555.

556.

557.

558.

559.

560.

561.

562.

563.

564.

565.

566.

567.

568.

4la

Schmutte, Gene

Schultz, Fred N.

Schwartz, James L.

Scott, Charles A.

Scott, R.D.

Scott, Roland B., Jr.

Seim, Raymond L.

Sellards, Robert L.

Seward, Scott B.

. Shackelford, Kenneth L.

Sharp, Harry G.

Sheldon, Geoffrey H.

Shepperd, Robert K.

Sherman, Charles Arthur, Jr.

Sherman, Craig A.

Shurtleff, Bruce K.

Sievers, Richard B.

Simpson, William A.

Sledge, L.F.

Sluyter, V.C.

Smith, D.F.

Smith, Daniel E.

Smith, Gary P.

Smith, Lawrence D.

Smith, Robert E.

Snider, William F.

Snipes, Tom

Sordi, Roy J.

Sork, Mark P.

Speth, Stephen A.

Spielman, Robert W.

Sponhauer, Richard G.

Sprenkle, John H.

Stamps, Jerry L.

Starkey, J. Paul _

Stayton, Van A.

Stears, Thomas M.

Stedfield, William C.

42a

569. Steele, Kenneth R.

570. Stefferud, Christian D.

571. Stewart, Duncan M.

572. Sticka, Dale A.

573. Stokes, Howard Warner

574. Stuppy, Laurence J., Il

575. Sublett, Gail Wm.

576. Swanson, John E.

577. Takabayashi, Glenn

578. Takoushian, Allan

579. Taylor, Curtis A.

580. Taylor, Gene

581. Taylor, J.B.

582. Tebay, Richard D.

583. Tekrony, Kent D.

584. Thomas, Frank G.

585. Thomas, Jack E.

586. Thompson, Gary N.

587. Thompson, Robert L.

588. Thorn, Donald L.

589. Thornburgh, Jon

590. Thornbury, David W.

591. Tichacek, Rich F.

592. Tidwell, James A.

593. Tieken, Robert

594. Timmons, Clifford E.

595. Tugaw, Leslie

596. Tuthill, Timothy A.

597. Twaddle, Robert R.

598. Tynan, Martin F.

599. Uhlenhop, Michael H.

600. Urdahl, Richard O.

601. Utter, David E.

602. Valadez, Ernesto E.

603. Valenzuela, John M.

604. Van Dyke, Richard E.

605. Veon, Roger

606. Vincenz, Gary

a

48a

607. Wadsley, Victor J.

608. Wait, Dwight R.

609. Wakefield, Anthony L.

610. Walker, Gary D.

611. Walker, Valerie J.

612. Wall, David R.

613. Wallintner, Thomas M.

614. Walton, Michael J.

615. Warburton, James M.

616. Warner, Robert W.

617. Wascher, Vernon E.

618. Watson, Michael D.

619. Watson, Thomas D.

620. Weatherly, James G.

621. Weaver, R. Taft

622. Weber, Stephen J.

623. Weeks, Roy F.

624. Weigel, William R., Jr.

625. Welsh, Jack S.

626. Wendelbo, Lee R.

627. West, James E.

628. West, Thomas E.

629. Wetzsteon, Sterling M.

630. White, Benny E.

631. Whitehouse, R.E.

632. Whitesell, Jeffrey H.

633. Wilkening, James A.

634. Will, Howard E., Jr.

635. Willetts, Peter J.

636. Williams, Delmar P.

637. Williams, James E.

638. Williams, James L.

639. Willis, Paul C.

640. Wills, Dennis L.

641. Wills, Ronald H.

642. Wilson, Maurice G.

643. Wilson, William L.

644. Winkler, W.H.

645.

646.

647.

648.

649.

650.

651.

652.

653.

654.

655.

656.

657.

658.

659.

660.

661.

44a

Wolfe, James L.

Wood, John O.

Wood, Richard S.

Wood, Robert G.

Wood, Vern M.

Wood, Winfield W.

Wright, Michael D.

Yonaka, Steven R.

Young, W. Bruce

Youngblood, R. Ricardo

Younker, Melvin E.

Zajic, Halden M.

Zamarin, Mark W.

Zavislak, Raymond W.

Zimmer, Edward T.

Zink, W.W.

Gooch, Richard A.