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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 1016

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0922%3A1. Public record. Not legal advice.