Petition for Writ of Certiorari — Landry v. Air Line Pilots Association (No. 90-189)

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~ JUL 26 1990

No. i

4 JOSEPH F. SPANIOL, JR,

a —GEERK

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In The -

Supreme Court of the United States

October Term, 1990

rN

—

FRANK LANDRY, et al.,

Cross-Petitioners

V.

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,

AFL-CIO, TACA INTERNATIONAL AIRLINES

and CHARLES J. HUTTINGER,

Cross-Respondents

a

vr

CROSS-PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

yN

-

Tom W. THORNHILL, Esq.

Counsel of Record

THORNHILL & ASSOCIATES

A Professional Law Corporation

1308 Ninth Street

Slidell, Louisiana 70458

(504) 641-5010

RICHARD A. MACHEN, Esa.

1400 Gause Boulevard

Slidell, Louisiana 70458

R. NEAL WILKINSON, Esq.

835 Louisiana Avenue

Baton Rouge, Louisiana 70802

Attorneys for Cross-Petitioners

Frank Landry, et al.

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

Whether the application of the six-month Statute of

Limitation, in 10(b) of the NLRA, is correct when

former employees file suit against a labor union for

violation of its duty of fair representation and against

their former employer for its breach of the collective

bargaining agreement even though the facts do not fit

the DelCostello holding ard this Court has recently

revisited DelCostello in Chauffeurs to find the trust

analogy a closer fit for the breach of duty of fair

representation action?

LIST OF PARTIES TO THE PROCEEDINGS

The Air Line Pilots Association, International, AFL-

CIO and Charles J. Huttinger were defendants in the

district court, appellees in the court of appeals and are

cross-respondents in this court.

TACA International Airlines, S.A. was a defendant in

the district court, an appellee in the court of appeals and

is a cross-respondent in this court.

Fringe Benefit Administrators, Ltd. was a defendant

in the district court, and intervenor in the court of

appeals and is a respondent in this court.

The plaintiffs in the district court, appellants in the

court of appeals, cross-petitioners and respondents in this

court, are: Frank Landry, Jules Corona, Charles South,

Robert A. Massa, Don Johnson, T.Q. Howard, the Succes-

sion and Beneficiaries of Joe Hass, Walter Keller, Don

Jenkins and his former wife, Zeda Jenkins, Emile Cerisier,

and M. Letona. The following were plaintiffs in the dis-

trict court but were not appellants in the court of appeals,

and are not cross-petitioners in the court: Thomas Brig-

nac, Robert Lukenbell, Bert Haffner, and Gary Zriek.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................- eee eeeee i

LIST OF PARTIES TO THE PROCEEDINGS ........ ii

TABLE OF AUTHORITIES............ecceeeeeceee: iv

ei! 6 9 Te. eer. 2

SCREENS 5 cnc ccsvessossesccsscccssesecesacese 2

STATUTES INVOLVED ...... 2... ccccccccccesccccess 3

STATEMENT OF THE CASE...............----00- 3

EE eee atk cnse ces ee eens de aw intedsek ees 3

Proceedings Below ...............ceeeeeeeeeeeees 9

Te Le, PPP yey eee Eee eT ESE ETE Tee are 8

ii. Court of Appeals...............ccseeeeeeeces 10

REASONS FOR GRANTING THE WRIT ........--. 11

I. THE SIX-MONTH STATUTE OF LIMITATIONS

TO CLAIMS WHICH ARE AGAINST THE

EMPLOYER AND UNION, BUT WHICH ARE

NOT ANALOGOUS TO ARBITRATION CLAIMS,

CONFLICTS WITH DECISIONS OF THIS COURT

AND PRESENTS AN ISSUE OF COMPELLING

IMPORTANCE WARRANTING THIS COURT’S

EE Nae Uh aseahNadeesunns Venacee see ee 11

A. The rationale of DeiCostello for the applica-

tion of the six-month Statute of Limitations

does not apply to the plaintiff’s claim...... 11

B. This Court has recently revisited DelCostello in

Chauffeurs, (March 20, 1990) finding the DFR

claim is more analogous to a trust claim...... 14

NES 6s osc so 6.66 ed snncceecstesacseouses 16

en ed aki e acca bens ecbeseseen sans AAI

TABLE OF AUTHORITIES

Page

Cases

Airiine Pilots Association v. Taca International Air-

lines, S.A., 748 F.2d 965 (5th Cir. 1984), cert.

I rn Wi BO I sooo checked eceeccsoces: 4

Chauffeurs, Teamsters and Helper v. Terry, S.Ct. No.

PPG £6 cadacsen sch enesebuasnalaseuadians 14, 15, 16

DelCostello v. International Bhd. of Teamsters, 462

U.S. 151, 103 S.Ct. 2281, 76 L.Ed. 2d 476 (1983)

Eee Tee TTT eT TT CT ee, Peeee 11, 12, 13, 14, 15, 16

Ruby v. TACA International Airlines, S.A., 439 F.2d

Takes seen buaniawecs 4

United Parcel Service, Inc. v. Mitchell, 452 U.S. 56

PSE MONLY > 5 Cree 2. Oe was eee creer Oe EN Oe AA rd 13

STATUTES

Judiciary and Judicial Procedure Act

ee eas ae IG oo Gk bab ddue os cob cacececesues 2

Labor Management Relations Act

29 U.S.C., § 185(a) & (b).......... a ee a oe ae 3

National Labor Relations Act

ee es ee I Ot os cuss cos cacaceceeaas 3, 13

ee ee Oo e rete OAL La a ee nae 3, 11, 12

Rules of Decision Act

Rev. Stat. § 721, 1 Stat. 92 (1789)

28 U.S.C. § 1652

No.

,’

4

In The

Supreme Court of the United States

October Term, 1990

,%

4

FRANK LANDRY, et al.,

Cross-Petitioners

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,

AFL-CIO, TACA INTERNATIONAL AIRLINES

and CHARLES J. HUTTINGER,

Cross-Respondents

,’

4

CROSS-PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

,%

vw

Frank Landry, Jules Corona, Charles South, Robert A.

Massa, Don Johnson, T.Q. Howard, the Succession and

Beneficiaries of joe Hass, Walter Keller, Don Jenkins and

his former wife, Zeda Jenkins, Emile Cerisier, and M.

Letona (“the airlines pilots’ or “TACA Pilots”) cross-

petition this Court to issue a writ of certiorari to the

United States Court of Appeals for the Fifth Circuit to

review the judgment in Landry, et al. v. Air Line Pilots

Association International, et al., No. 88-3363 (5th Cir., Jan.

31, 1990), modified April 27, 1990.

4

vy

OPINIONS BELOW

The opinion of the court of appeals, which has not

yet been officially reported, is reproduced at App. A’.

The unreported opinions of the court of appeals on peti-

tions for rehearing are reproduced at App. H and App. I.

The unreported opinions of the United States District

Court for the Eastern District of Louisiana are reproduced

at App. C through App. E. Set out as Appendix AA is the

opinion of the District Court (omitted from ALPA’s brief)

regarding it having to consider the equitable toiling argu-

ment on the request of the airline pilots and that such a

request was not sanctionable.

+

JURISDICTION

The opinion and judgment of the court of appeals

were entered on January 31, 1990. Timely petitions for

rehearing were granted in part and denied in part on

April 27, 1990. This Court’s jurisdiction is invoked pur-

suant to 28 U.S.C. § 1254(1).

This Cross-Petition is filed in accordance with Rule 13.5

of the Rules of the Supreme Court of the United States

adopted December 5, 1989, effective January 1, 1990.

+

' “App. A-E” refers to the appendix annexed to the Origi-

nal Petition for issuance of a writ of certiorari filed in this

matter by the Airline Pilots Association (ALPA).

“R. __” refers to the page number of the Record on

Appeal to the Fifth Circuit Court of Appeals.

STATUTES INVOLVED

Set out in Appendix BB are the relevant portions of

the following acts:

1. § 301 of the Labor Management Relations Act, 1947,

61 Stat. 156, 29 U.S.C. § 185(a) & (b) (1982 ed.).

2. National Labor Relations Act, 49 Stat. 449, 29 U.S.C.,

§ 159(a) & (b) (1982 ed.).

3. 10(b) of the National Labor Relations Act, 49 Stat. 453,

at amended, 29 U.S.C., § 160(b).

4. Rules of Decision Act, Rev. Stat. § 721, 1 Stat. 92, the

First Congress, 1789; 28 U.S.C. § 1652.

+

STATEMENT OF THE CASE

The airline pilots brought this suit against TACA and

ALPA alleging that ALPA violated their duty of fair rep-

resentation, TACA violated the collective bargaining

agreement and both violated RICO along with Charles J.

Huttinger. They also alleged that TACA, ALPA and FBA

breached their fiduciary duties under ERISA in the imple-

mentation and Administration of the Pilots retirement

plan.

THE FACTS

The history necessary to understand the illicit

motivation of the defendants in this case dates back to at

least the early 1960’s. The plaintiffs are former pilots

emploved by TACA Airlines, and represented by their

union, ALPA. Pursuant to a Letter of Agreement dated

February 24, 1982, which supplemented and modified the

existing collective bargaining agreement, ALPA and

TACA purportedly agreed to establish a retirement plan

for TACA pilots. In addition, TACA agreed to make

monthly contributions commencing March 31, 1982. Into

a trust account in an institution designated by ALPA’s

bargaining representative, Charles Huttinger, also a

TACA pilot.

In 1983, while negotiating a collective bargaining

agreement, TACA tried to breach its existing agreement,

withdrew its recognition of ALPA, and impose new work-

ing conditions on its pilots. Only a court ordered injunc-

tion prevented TACA from doing so. See Air Line Pilots

Association v. TACA International Airlines, S.A., 748 F.2d

965 (Sth Cir. 1984) cert. denied, 471 U.S. 1100 (1985).

TACA for years sought to move its base of operations

from New Orleans to El Salvador, through whatever

means, legal or illegal, available. Some sixteen years ago,

the Fifth Circuit Court of Appeals affirmed a determina-

tion that TACA was acting in bad faith in order to under-

mine collective bargainirsy. Ruby v. TACA International

Airlines, S.A., 439 F.2d 1359 (5th Cir. 1971). In the Spring

of 1985 ALPA was faced with threats of multi-million

dollar litigation from TACA, for ALPA directed labor

sabotage of TACA’s equipment. In order to meet TACA’s

threats and quickly settle the negotiations (no matter how

disfavorable to the pilots) Huttinger conspired with the

ALPA election board to have an election thrown out on a

procedural irregularity in voting. On July 15, 1985 a new

election was certified, and this time Huttinger was

installed as the new Captain Representative. Nine days

later Huttinger negotiated the Pilots Agreement.

Huttinger (who due to medical problems could not

fly) had lost his status to negotiate, to vote, to represent

the union, and was to be automatically severed from the

employment of TACA after five years of sick status, all in

accordance with the 1980 contract. To avoid loss of

seniority benefits, and the lump sum payments he could

receive, Huttinger refused to negotiate for ALPA unless

all of the foregoing was restored to him each month,

before negotiations began. TACA agreed to make these

alleged payments to Huttinger to induce ALPA to negoti-

ate. The union membership was unaware of this.

On July 1, 1985, the pilots received a telegram from

ALPA, which restates accusations that some pilots are

intentionally sabotaging airline equipment. TACA threats

to prosecute and to institute civil suit followed and were

only dropped after Huttinger agreed to TACA’s terms.

Because, according to ALPA’s president, ALPA was in no

position to afford protracted litigation.

On July 3, 1985, Charles Huttinger writes the pilots,

informing them that “TACA’s despicable intentions are

clear”, TACA is “determined to destroy ALPA at TACA,

escape U.S. laws, and move to [El] Salvador”. Negotia-

tions had completely broken down and would not resume

for another thirty (30) days.

Huttinger describes TACA’s proposal to cease contri-

butions to the pension plan as illegal, unfair, and ridicu-

lous. “Regardless of the outcome of these negotiations,

TACA must contribute to the plan.” The plan “should not

be the subject of these negotiations.”

On July 24, 1985, the pilots are informed by Hut-

tinger that the association has reached an agreement with

TACA. A copy of the agreement is to be sent to them

shortly. (No details are provided) The tentative agree-

ment is “(subject to ratification)”. Approximately a week

later (August 3, 1985), the pilots are informed by TACA

that they ha’ve twelve (12) days to quit and receive sever-

ance and retirement benefits, or stay on and move to El

Salvador. The pilots must decide which option they

choose. If they make no decision, or protest, then they

lose severance pay and other benefits and they lose the

right to continue employment. No mention is made of

ratification.

The July 24, 1985 “Pilots’ Agreement” superseded the

1980 collective bargaining agreement, and provided that

ALPA would not hinder or oppose TACA’s relocation

outside the United States. The agreement forced the pilots

to accept termination and retirement unless they chose to

move themselves to El Salvador.

TACA’s intentions were obvious. It only wanted the

senior experienced American captains to stay on long

enough to help keep the airline running. Once the

cheaper paid Salvadorian pilots gained enough experi-

ence to be promoted as captains, the American captains

would be expendable.

Although the permanent contract made a token offer

to keep all pilots on, it was in fact not even that. It was a

material, intentional misrepresentation of fact. Fredrico

Bloch, TACA’s vice-president, informed one co-pilot, Wal-

ter Keller, that TACA was not interested in keeping any

North American co-pilots.

Therefore, TACA not only misrepresented its desire

to employ all pilots in the August 3, 1985 letter, it also

misrepresented the same stated desire to employ all

pilots in the July 24, 1985 bargaining agreement.

The move up to larger aircraft had the base not

relocated, along with yearly increases in seniority, meant

that many pilots were anticipating $120,000 to $200,000

salaries, plus benefits, prior to mandatory retirement at

age 60. Instead they were forced by the fraudulent acts of

ALPA, TACA and Huttinger into accepting one time lump

sum severance pay offs ranging from about $16,000 to

$39,000, and nonexistent retirement pensions.

Working under too short a time period to make an

informed decision, the pilots reluctantly agreed to accept

mediocre severance benefits, assuming that they had the

substantial portion of their retirement plan available. In

early 1986, when no benefits were forthcoming, several

pilots tried contacting ALPA and Huttinger. The pilots

were told that because TACA ceased its contributions in

July 1985, the plan automatically terminated and their

retirement benefits were unavailable. To date, the pilots

have received no funds from the retirement system.

Despite repeated requests, Charles Huttinger refused to

give out any information. As it turns out, one pilot is

receiving retirement benefits - Charles Huttinger.? It is

believed that Huttinger began receiving benefits from the

fund in November of 1985, two months after the plan had

terminated.

Both Huttinger and TACA claimed they were making

every effort to completely document the plan pursuant to

the Letter of Agreement dated February 24, 1982. In fact,

neither TACA, ALPA nor Huttinger made any effort to

2 One other pilot, R.B. Hall, is receiving benefits. He

retired in June of 1982, and applied long before the July, 1985

agreement was executed.

document the trust agreement as an ERISA Plan. They

only moved forward in April 1985, when this Court

rejected TACA’s effort to unilaterally move its base and

abrogate the collective bargaining agreement by denying

TACA’s writ application, effectively sustaining Judge

Feldman’s injunction.

The pension plan was created with a fraudulent eye

toward quickly terminating it. Documented in July, 1985

with a retroactive establishment date of February 1, 1982,

but then immediately made the object of implicit termina-

tion by the July 24, 1985, Pilots’ Agreement (a fact

unknown to the airline pilots), this plan served only one

pilot — Huttinger. Obviously, as head of the retirement

committee Huttinger was in a position of control. Hut-

tinger was treated as vested in the plan although his

status was contractually terminated.

Required notices of termination of the plan upon

cessation of contributions by TACA were not given by

ALPA, the plan trustee, FBA, the plan administrator and

mandatory fiduciary, or TACA, the employer.

Huttinger moved quickly to protect himself. In return

for TACA’s monthly restoration of Huttinger to the

Active Seniority List, his hospital benefits and sick pay,

Huttinger negotiated a quick agreement substantially

favorable to TACA. TACA was relieved of its heretofore

“non-negotiable” obligation to continue funding the plan.

By keeping the other pilots in the dark, and applying for

benefits timely, Huttinger could assure himself of getting

paid. He quickly filed for retirement while he, ALPA,

TACA and the FBA intentionally neglected their duty to

notify the pilots of the consequences of the termination of

TACA contributions to the plan under the proposed

Pilots’ Agreement. ALPA, the plan trustee, instructed

FBA to pay Huttinger and he began to collect retirement

pay at age 56 while older men were being deprived of

their jobs and to this date their hard earned retirement

pay.

PROCEEDINGS BELOW

i. District Court

Only July 23, 1986, (R. 1) the plaintiffs filed a com-

plaint against the Airline Pilots Association (ALPA),

Fringe Benefits Administrators, Ltd. (FBA) and TACA

International Airlines, S.A (TACA) for violations of the

Railway Labor Act (RLA) 45 U.S.C. 151, et seq., the

National Labor Relations Act (NLRA), 29 U.S.C.

1001-1461 (ERISA) and La. C.C. Art. 2315, including

claims of fraud and collusion by defendants requesting

damages and a declaratory judgment.

FBA filed an answer on October 22, 1986, (R. 261).

ALPA and TACA filed motions to dismiss. On January 13,

1987, (R. 383-386) the pilots noticed the depositions of

Charles Huttinger and First National Bank, eventually

postponed at the request of defendants. On February 10,

1987, (R. 408) the pilots filed motions to transfer and

consolidate this matter in the injunction proceeding, pre-

viously rendered by Judge Feldman. The defendants

objected. On March 27, 1987 the pilots’ motion to transfer

was denied. On March 11, 1987, (R. 464) the pilots filed a

motion to amend the complaint adding a second count

based on RICO violations and adding Charles Huttinger

as a defendant. Over oppositions of ALPA and TACA, the

10

amended complaint was ordered filed on April 6, 1987,

(R. 492)

In May, ALPA, TACA and Huttinger (R. 610) filed

motions to dismiss the new complaint. The court, (R. 758)

denied motions to dismiss without prejudice and ordered

the pilots to file a RICO case statement, which was filed

on August 25, 1987 (R. 764). November 18, 1987, (R. 1007)

the defendants moved for protective orders to quash

depositions of TACA, Huttinger and FBA which the pilots

had noticed for October. On December 11, 1987, (R. 1104)

the court granted the protective order.

On December 14, 1987, (R. 1108) the pilots filed a

motion for the court to reconsider the application of

tolling pxinciples to the dismissal of their DFR claims.

December 23, 1987, (R. 1117) the court denied a request

by the pilots to file supplemental brief in support of

motion to reconsider. On February 29, 1988 the court

denied the pilots’ motion for reconsideration and ordered

the pilots to respond to defendants’ request for sanctions.

On March 17, 1988 the court rendered reasons dismissing

the pilots’ new claims against TACA, ALPA and Hut-

tinger. On April 28, 1988 the court entered a Rule 54(b)

judgment dismissing ALPA and TACA, and on May 4,

1988, one dismissing Huttinger.

ii. Court of Appeals

The court of appeals affirmed dismissal of the DFR/

breach of contract claim on limitations grounds. The

court found no basis for equitable tolling, as plaintiffs

were “on inquiry notice of the labor law claims they

11

raised in this suit in the spring or summer of 1985.” App.

A, 15a.

With respect to the RICO claim, the court of appeals

affirmed the dismissal of TACA but reversed as to ALPA

and Huttinger.

The court also reversed the grant of summary judg-

ment on the ERISA claim as to ALPA and TACA.

The case was remanded for trial on the merits.

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4

REASONS FOR GRANTING THE WRIT

The case presents issues of great importance which

merit this Court’s review.

I. THE APPLICATION OF THE SIX-MONTH STAT-

UTE OF LIMITATIONS OF SECTION 10(b) OF THE

NLRA TO CLAIMS WHICH ARE AGAINST THE

EMPLOYER AND UNION, BUT WHICH ARE NOT

ANALOGOUS TO ARBITRATION CLAIMS, CON-

FLICTS WITH DECISIONS OF THIS COURT AND

PRESENTS AN ISSUE OF COMPELLING IMPOR-

TANCE WARRANTING THIS COURT’S REVIEW.

A. The rationale of DelCostello for the application

of the six-month Statute of Limitation does not

apply to the plaintiff’s claim.

The Fifth Circuit in applying § 10(b) of the National

Labor Relations Act, 29 U.S.C. § 160(b), which has a six-

month limitation period concluded that this case pre-

sented a “hybrid” action in tune with this court’s decision

of DelCostello v. International Bhd. of Teamsters, 462 U.S.,

151, 103 $.C%. 2281 (1983). Their conclusion has precluded

12

the pilots from any avenue of relief based upon their DFR

claim or Section 301 of the LMRA. As will be shown

below, their conclusion is in conflict with this court’s

policy reasons for borrowing the six-month limitation of

the NLRA as stated and affirmed in DelCostello, supra.

This Court in DelCostello, supra, reasoned that it

would not apply the state statutes of limitation, because

the hybrid action against an employer and union has no

close analogy in ordinary state law. This decision sought

to reason around the Congressional mandate of the Rules

of Decision Act, Rev. Stat. § 721, 1 Stat. 92, by looking to

the nature of the claims brought against the employer

and the union.

This Court ruled that it had “available a federal

statute of limitations actually designed to accommodate a

balance of interests very similar to that at stake here - a

statute, that is, in fact, an analogy to the present lawsuit

more apt than any of the suggested state law paral-

lels. .. . § 10(b) of the National Labor Relations Act... ”

DeiCostello, supra, 2293.

The facts of this case simply are not a close analogy

to DelCostello, supra, and therefore not a proper analogy

to § 10(b) of the National Labor Relations Act, 29 U.S.C.

§ 160(b). Here, the employees were not involved in the

grievance machinery as in DelCostello, supra. Instead, the

defendants first contracted those rights away, and then,

rather than risk an unfavorable vote when extended for

the promised right of ratification, the defendants misrep-

resented to the airline pilots that they had no choice but

to accept the TACA offer of resigning and accepting

13

meager severance benefits. The employees only recourse

for redress was the courts.

This Court’s reason for selecting § 10(b) as the most

analogous action was the desire to apply a “limitations

period attuned to what it viewed as the proper balance

between the national interest in stable bargaining rela-

tionships and finality of private settlements, and an

employee’s interest in setting aside what he views as an

unjust settlement under the collective bargaining sys-

tem.” DelCostello, supra, 462 U.S. 170, quoting United

Parcel Service v. Mitchell, 452 U.S. 56 (1981), 70-71. The

employees herein were not allowed to bargain or grieve,

or for that matter to settle. Instead they were told to

resign, because they had no other choice — moving to El

Salvador not being a realistic alternative. Simply, the

employer and union executed an agreement and through

their fraud and deceit were able to effect an illegal decer-

tification of the union,? thereby allowing TACA to

3 After TACA and ALPA executed the Jnly 24, 1985 Pilots

Agreement, the ALPA representative assured the pilots of a

right to vote on the agreement. Approximately one week later,

on August 3, 1985, TACA advised the pilots that they must

choose in twelve (12) days either severance pay and retirement

benefits, or move to El Salvador to work for TACA. The ALPA

representative then represented to the pilots that they had no

choice but to accept the TACA offer of August 3, 1985. Based

on these misrepresentations, all of the United States pilots

chose the severance offered by TACA. This implicitly gave

effect to the Pilots Agreement of July 24, 1985 which provided

that ALPA was to no longer represent the TACA pilots after

August 31, 1985, all in violation of the judicially prescribed

methods regulating the termination of collective bargaining

representation and the provisions of 29 U.S.C. § 159(a) & (b).

14

circumvent the previously issued injunction’ preventing

TACA from moving its base to El Salvador.

B. This Court has recently revisited DelCostello in

Chauffeurs, (March 20, 1990) finding the DFR

claim is more analogous to a trust claim.

In Chauffeurs, Teamsters and Helpers, Local No. 391 vs.

Terry, et al., U.S. Sup. Ct. No. 88-1719 (March 20, 1990),

this Court was presented with the question of whether an

employee who seeks relief in the form of back pay for a

union’s alleged breach of its duty of fair representation

has a right to trial by jury. This Court revisited the

application of the closest analogy of an action by an

employee against the union and employer and stated that

the “court in DelCostello did not consider the trust anal-

ogy, nowever.” Chauffeurs, supra, p. 8.

This Court agreed with the union’s argument that the

employees’ duty of fair representation action is compara-

ble to an action by a trust beneficiary against a trustee for

breach of fiduciary duty. The Court stated that “Just as a

trust beneficiary can sue to enforce a contract entered

into on his behalf by the trustee only if the trustee

improperly refuses or neglects to bring an action against

the third person, RESTATEMENT (Second) of TRUSTS,

4 Although ALPA was the plaintiff in obtaining the injunc-

tion issued against TACA in 1983 (affirmed by the Fifth Circuit

Court of Appeals in 1984 and certiorari denied by this Court in

1985), and the lower courts have refused to reopen that case,

the thrust of the injunction prohibiting the transfer of the

TACA base without first complying with the RLA is the under-

lying basis for the pilots complaint in this action.

15

supra, § 282(2), so an employee can sue his employer for a

breach of the collective bargaining agreement only if he

shows that the union breached its duty of fair representa-

tion in its handling of the grievance, DelCostello, 463 U.S.,

at 163-164.” Chatffeurs at p.8. It is because of this charac-

teristic of the DFR claim that the trust analogy fits best.

As in the case of Chauffeurs, this Court should view

this case as one that “is not typical; instead it is a claim

consisting of discrete issues that would normally be

brought as two claims, one against the employer and one

against the union. . . . Consideration of the nature of the

two issues in this hybrid action is therefore warranted”

Chauffeurs, supra, p. 10, footnote 6. If this court treats each

issue separately, it may conclude, as it did in Chauffeurs,

that the § 301 issue is closely analogous to a breach of

contract claim and the DFR action is closely analogous to

a trust action. However, considering both issues as part of

one action, the application of the trust analogy to both the

§ 301 issue and the DFR issue in this lawsuit would be

correct.

Applying the trust analogy to the instant § 301 claim

and the DFR claim would not do violence to those

national policy reasons as stated in DelCostello, supra. This

is particularly the case here because the employer and the

union worked to collectively misrepresent the facts

regarding the pilots choices and to induce them to sever

their relationship with their employer and union, in order

to illegally move the TACA base outside the jurisdiction

of the United States.

The Louisiana Trust Code, L.S.A. 9:2234 has a one

year limitation period for a beneficiary to bring an action

16

against the trustee. It is respectfully suggested that Chauf-

feurs implicitly requires that the Court allow the pilots in

this case one year within which to file their hybrid DFR

claim. Doing so, the Court would be allowing for filling

claims during the shortest of available analogous state

law actions promoting prompt resolution of labor law

claims without doing violence to the Rules of Decision

Act. Rev. Stat. § 721, 1 Stat. 92.

”*

—

CONCLUSION

For the foregoing reasons, this petition for a writ of

certiorari should be granted. This case does not fit the

parameters established for DelCostello type hybrid claims.

More importantly, this Court has clearly expressed its

intent to reconsider the DelCostello analogies in state law

and considers the trust claim as most closely analogous,

leading to a one year period for filing this suit and

making the same timely filed.

Respectfully submitted

Tom W. THORNHILL

Counsel of Record

1308 Ninth Street

Slidell, LA 70458

(504) 641-5010

RicHarp A. MAacnen, Eso.

1400 Gause Boulevard

Slidell, Louisiana 70458

R. Neat WILKINSON, Eso.

835 Louisiana Avenue

Baton Rouge, Louisiana 70802

Attorneys for Cross-Petitioners

Frank Landry, et al.

ee

AAI

APPENDIX AA

MINUTE ENTRY

ARCENEAUx, J.

APRIL 11, 1988 CIVIL

ACTION

FRANK LANDRY, ET AL NO. 86-3196

VERSUS SECTION:

AIRLINE PILOTS’ ASSOCIATION, “K” (3)

INTERNATIONAL, AFL-CIO, ET AL

(Filed April 12, 1988)

On April 24, 1987, this Court dismissed the plaintiffs’

claims against ALPA and TACA under the Railway Labor

Act and ERISA. On March 17, 1988, the Court dismissed

the plaintiffs’ RICO claims against ALPA, TACA and

Charles Huttinger. The only remaining issue between the

plaintiffs and ALPA and TACA is the defendants’ request

for imposition of sanctions under Fed.R.Civ.P. 11 for the

allegedly baseless filing of a motion for reconsideration

of the Court’s dismissal of the Railway Labor Act claims.

The Court has determined that sanctions are not war-

ranted in this matter and therefore denies the defendants’

request.

In Thomas v. Capital Sec. Services, Inc., 836 F.2d 866

(5th Cir. 1983), the Court of Appeals for the Fifth Circuit,

on rehearing, restated its position as to the interpretation

of Fed.R.Civ.P. 11. The Court dispensed with the require-

ment previously imposed upon district courts that spe-

cific findings of fact and conclusions of law be stated in

every instance in which Rule 11 sanctions were

requested. Id. at 883. Although the imposition of sanc-

tions remains mandatory upon the finding of a violation

of Rule 11, the appropriateness of a sanction is left to the

AA2

discretion of the district court, which is to impose the

least severe sanctions adequate to serve the purpose of

the Rule. /d. at 878.

The plaintiffs’ motion for reconsideration, while

somewhat cryptic, was not baseless. In dismissing the

plaintiffs’ Railway Labor Act claims, the Court specifi-

cally addressed the issue of the point of accrual of the

plaintiffs’ claims for relief, but did not specifically men-

tion the words “equitable tolling.” In view of the enor-

mity of the plaintiffs’ claims for damages and the sheer

number of plaintiffs, the Court cannot say that the plain-

tiffs were wrong to file the motion for reconsideration.

While the motion could have been prepared with greater

care, the Court finds that it was not frivolous.

Accordingly,

IT Is ORDERED that the request of the defendants

for the imposition of sanctions is DENIED.

/s/ George Arceneaux, Jr.

United States District Judge

BB1

APPENDIX BB

SUBCHAPTER IV - LIABILITIES OF AND

RESTRICTIONS ON LABOR AND MANAGEMENT

§ 185. Suits by and against labor organizations

venue, amount, and citizenship

(a) Suits for violation of contracts between an

employer and a labor organization representing

employees in an industry affecting commerce as defined

in this chapter, or between any such labor organizations,

may be brought in any district court of the United States

having jurisdiction of the parties, without respect to the

amount in controversy or without regard to the citizen-

ship of the parties.

Responsibility for acts of agent; entity for purposes

of suit; enforcement of money judgments

(b) Any labor organization which represents

employees in an industry affecting commerce as defined

in this chapter and any employer whose activities affect

commerce as defined in this chapter shall be bound by

the acts of its agents. Any such labor organization may

sue or be sued as an entity and in behalf of the employees

whom it represents in the courts of the United States.

Any money judgment against a labor organization in a

district court of the United States shall be enforceable

only against the organization as an entity and against its

assets, and shall not be enforceable against any individ-

ual member or his assets.

BB2

§ 158a. Providing facilities for operations of Federal

Credit Unions

Provision by an employer of facilities for the opera-

tions of a Federal Credit Union on the premises of such

employer shall not be deemed to be intimidation, coer-

cion, interference, restraint or discrimination within the

provisions of sections 157 and 158 of this title, or acts

amendatory thereof.

Dec. 6, 1937, c. 3, § 5, 51 Stat. 5.

§ 159. Representatives and elections — Exclusive repre-

sentatives; employees’ adjustment of grievances

directly with employer

(a) Representatives designated or selected for the

purposes of collective bargaining by the majority of the

employees in a unit appropriate for such purposes, shall

be the exclusive representatives of all the employees in

such unit for the purposes of collective bargaining in

respect to rates of pay, wages, hours of employment, or

other conditions of employment: Provided, That any indi-

vidual employee or a group of employees shall have the

right at any time to present grievances to their employer

and to have such grievances adjusted, without the inter-

vention of the bargaining representative, as long as the

adjustment is not inconsistent with the terms of a collec-

tive-bargaining contract or agreement then in effect: Pro-

vided further, That the bargaining representative has been

given opportunity to be present at such adjustment.

BB3

Determination of bargaining unit by Board

(b) The Board shall decide in each case whether, in

order to assure to employees the fullest freedom in exer-

cising the rights guaranteed by this subchapter, the unit

appropriate for the purposes of collective bargaining

shall be the employer unit, craft unit, plant unit, or subdi-

vision thereof: Provided, That the Board shall not (1)

decide that any unit is appropriate for such purposes if

such unit includes both professional employees and

employees who are not professional employees unless a

majority of such professional employees vote for inclu-

sion in such unit; or (2) decide that any craft unit is

inappropriate for such purposes on the ground that a

different unit has been established by a prior Board deter-

mination, unless a majority of the employees in the pro-

posed craft unit vote against separate representation or

(3) decide that any unit is appropriate for such purposes

if it includes, together with other employees, any individ-

ual employed as a guard to enforce against employees

and other persons rules to protect property of the

employer or to protect the safety of persons on the

employer’s premises; but no labor organization shall be

certified as the representative of employees in a bargain-

ing unit of guards if such organization admits to member-

ship, or is affiliated directly or indirectly with an

organization which admits to membership, employees

other than guards.

BB4

§ 1652. State laws as rules of decision

The laws of the several states, except where the Con-

stitution or treaties of the United States or Acts of Con-

gress otherwise require or provide, shall be regarded as

rules of decision in civil actions in the courts of the

United States, in cases where they apply. June 25, 1948, c.

646, 62 Stat. 944.

29 U.S.C. § 160

Complaint and notice of hearing; answer; court

rules of evidence applicable

(b) Whenever it is charged that any person has

engaged in or is engaging in any such unfair labor prac-

tice, the Board, or any agent or agency designated by the

Board for such purposes, shall have power to issue and

cause to be served upon such person a complaint stating

the charges in that respect, and containing a notice of

hearing before the Board or a member thereof, or before a

designated agent or agency, at a place therein fixed, not

less than five days after the serving of said complaint:

Provided, That no complaint shall issue based upon any

unfair labor practice occurring more than six months

prior to the filing of the charge with the Board and the

service of a copy thereof upon the person against whom

such charge is made, unless the person aggrieved thereby

was prevented from filing such charge by reason of ser-

vice in the armed forces, in which event the six-month

period shall be computed from the day of his discharge.

Any such complaint may be amended by the member,

BB5

agent, or agency conducting the hearing or the Board in

its discretion at any time prior to the issuance of an order

based thereon. The person so complained of shall have

the right to file an answer to the original or amended

complaint and to appear in person or otherwise and give

testimony at the place and time fixed in the complaint. In

the discretion of the member, agent, or agency conduct-

ing the hearing or the Board, any other person may be

allowed to intervene in the said proceeding and to pre-

sent testimony. Any such proceeding shall, so far as prac-

ticable, be conducted in accordance with the rules of

evidence applicable in the district courts of the United

States under the rules of civil procedure for the district

courts of the United States, adopted by the Supreme

Court of the United States pursuant to section 2072 of

Title 28.