Opposition Brief — Landry v. Air Line Pilots Association (No. 90-189)

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IN THE

Geprve Genri of the Butteh States

OCTOBER TERM, 1990

FRANK LANDRY, et al.,

Cross-Petitioners,

Alr LINE PILOTS ASSOCIATION, INTERNATIONAL, AFL-CIO,

TACA INTERNATIONAL AIRLINES, S.A., et al.,

Cross-Respondents.

On Cross-Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF

CROSS-RESPONDENTS AIR LINE PILOTS

ASSOCIATION, INTERNATIONAL AND

CHARLES J. HUTTINGER IN OPPOSITION TO

CROSS-PETITION FOR CERTIORARI

STEPHEN B. MOLDOF

Counsel of Record

ANN E. O’SHEA

MICHAEL L. WINSTON

THOMAS N. CIANTRA

COHEN, WEISS AND SIMON

830 West 42nd Street

New York, New York 100386

(212) 563-4100

Attorneys for Cross-Respondents

Air Line Pilots Association,

International and

Charles J. Huttinger

Witeon - Eras Pawtrine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

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BEST AVAILABLE COPY (um 2).

QUESTION PRESENTED FOR REVIEW

Whether the court below properly concluded that plain-

tiffs’ claim that their union breached its duty of fair

representation and their employer breached the collective

bargaining agreement through negotiation and entry into

a new collective bargaining agreement one year before

suit was filed was barred by the six-month statute of limi-

tations established in DelCostello v. International Bhd. of

Teamsters, 462 U.S. 151 (1983) ?

(i)

ii

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

petitioners and cross-respondents in this Court.

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

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

is a respondent and cross-respondent in this Court.

Fringe Benefit Administrators, Ltd. was a defendant in

the district court, an intervenor in the court of appeals,

and is a respondent and cross-respondent in this Court.

The plaintiffs in the district court, appellants in the

court of appeals, and respondents and cross-petitioners

in this Court, are: Frank Landry, Jules Corona, Charles

South, Robert A. Massa, Don Johnson, T.Q. Howard, Joe

Hass, Walter Keller, Don Jenkins, Emile Cerisier, and

M. Letona. The following were plaintiffs in the district

court but were not appellants in the court of appeals and

are not respondents or cross-petitioners in this Court:

Thomas Brignac, Robert Lukenbill, Bert Haffner, and

Gary Zyriek.

TABLE OF CONTENTS

Page

ng gg - ; eae i

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

py SP TN iy 8 hg | Fae iv

EEE EO Ce te TE 1

pe es 6 : ) ea a 2

Samnmeeeeen Oe tee CASE ...................................... 2

Ne a 2

TTT - 8

I is ecsntcnmanenmmnetion 3

EL LTD 5

SUMMARY OF ARGUMENT .....W0. 6

REASONS WHY THE WRIT SHOULD BE DENIED .. 6

The Application by the Court Below of DelCostello

to Plaintiffs’ “Hybrid” Duty of Fair Representa-

tion/Breach of Contract Claim is Consistent with

all Post-DelCostello Decisions and Does Not Merit

Supreme Court Review .........................2....c..-c.-c0..000.-- 6

tL 11

Teen sc hconicilsenentiann la

(iii)

iv

TABLE OF AUTHORITIES

CASES Page

Air Line Pilots Ass’n, Int’l v. TACA Int'l Airlines,

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

je! Rear eae ee 2,3

Alcorn V. Burlington Northern R.R., 878 F.2d 1105

os cceatlahisicubsisine 7,8

Bailey v. Chesapeake & Ohio Ry., 852 F.2d 185

an 7,8

Barnett v. United Air Lines, Inc., 788 F.2d 358

(10th Cir.), cert. denied, 469 U.S. 1087 (1984).. 7

Barton Brands, Ltd. v. N-L.R.B., 529 F.2d 793

0 GRRE RRS ee ee 8

Brock Vv. Republic Airlines, Inc., 776 F.2d 523 (5th

GG SI cicssccansinsnicaheneneddicea Ma dtateiaAbdl kellie eT. 7

Brotherhood of R.R. Trainmen v. Jacksonville

Terminal Co., 394 U.S. 369 (1969) -....000 7

Chauffeurs, Local 391 v. Terry, 110 S.Ct. 1339

RES AS Ae ar ie ee 6, 9

DelCostello v. International Bhd. of Teamsters,

OR rs I access cavcnensereneans 4, 6, 8, 10 |

Eatz v. DME Unit of Local 3, 794 F..d 29 (2d Cir.

| RA EE ERI Pee IAC AO 7,8

Emporium Capwell Co. v. Western Addition Com-

munity Org., 420 U.S. 50 (1975) 00. 8

Engelhardt v. Consolidated Rail Corp., 756 F.2d

Te 7,8

Erkins Vv. United Steelworkers, 723 F.2d 837 (11th

Cir.), cert. denied, 467 U.S. 1248 (1984) ............ 7,8

Fechtelkotter v. Air Line Pilots Ass’n, Int’l, 693 |

Pe BF se, | Re 7 |

Grider v. C.V. Monin, 687 F. Supp. 324 (M.D.

NS = I ea age 9

J.I. Case Co. Vv. N.L.R.B., 321 U.S. 382 (1944)... x

Kelly v. Burlington Northern R.R., 896 F.2d 1194 ,

I 7

Lea V. Republic Airlines, Inc., 908 F.2d 624 (9th

Ne pare ioresaead octave eee 8,9

Legutko Vv. Local 816, Int’l Bhd. of Teamsters, 853

Fee OD CON Gre BD nccssntnccensecssnectosconcantenniasncns 8

a ae

v

TABLE OF AUTHORITIES—Continued

Lonengard v. Santa Fe Indus., 70 N.Y.2d 262, 519

pS ae er ee

Lucas V. Mountain States Tel. & Tel., 184 L.R.R.M.

(BNA) 3065 (10th Cir. 1990) —........222 ee...

Massey Vv. Whittaker Corp., 661 F. Supp. 1151

Gin II hoch,

Nicely v. USX, 709 F. Supp. 646 (W.D. Pa.

ieee ee itarin tes tacecetcseedeandasaetdeewise

Order of R.R. Tel. v. Railway Express Agency, 321

es ee I Sich edison tentckcnee icc ecctetinne

Ostojic v. National Cleaning Co., 736 F. Supp. 177

CG a I circa ihc cshchsincastelceiaciaestohdamlihiineninbiedadins

Palmer v. Metro-North Commuter R.R., 661

Fr. BR. Re CRs. BED eierciwremtticnssteeneenes

Public Serv. Co. v. Chase Manhattan Bank, 577

es 6 F Fh A | Ren

Quinn V. Digiulian, 739 F.2d 637 (D.C. Cir. 1984) ..

Ranieri v. United Transp. Union, 743 F.2d 598

DST Oe ee eee eee

Ratkosky v. United Transp. Union, 848 F.2d 869

CO i a ik

Ray v. W.S. Dickey Clay Mfg. Co., 584 F. Supp.

Se Ae ce

Reed v. United Transp. Union, 109 S.Ct. 621

TI iakeclials Sel i i aa a

Sisco Vv. Consolidated Rail Corp., 732 F.2d 1188 (3d

aerate ep NE TS DO Ser Pe DRE er SF ROR

Smallakoff v. Air Line Pilots Ass’n, Int’l, 825 F. 24

Re Ce I I aicircedercictanseicnceenndeiatetnccscans

Terry V. Chauffeurs, Local 391, 863 F.2d 334 (4th

Cir. 1988), aff’d, 110 S.Ct. 1839 (1990) —..........

Triplett v. Local 308, Bhd. of Ry. Clerks, 801 F.2d

I I BI oii ics cri sscenkmenas ia chasenace

Tyson V. North Car. Nat'l Bank, 305 N.C. 136,

_ § 8 - fy URSA SEEaieaerencete meme

United Indep. Flight Officers, Inc. v. United Air

Lines, Inc., 756 F.2d 1262 (7th Cir. 1985) _......

Page

10

vi

TABLE OF AUTHORITIES—Continu-d

United Parcel Serv., Inc. v. Mitchell, 459 U.S.

8 ee a eee

United States v. Davidoff, 359 F. Supp. 545

CEe te. SUED tddincindidniibie tee,

Welyezko v. U.S. Air, Inc., 733 F.2d 289 (2d Cir.),

cert. denied, 469 U.S. 1086 (1984) 0.

West v. Conrail, 481 U.S. 35 (1987) 20.0000.

Wholey v. Cal-Maine Foods, Inc., 530 So.2d 136

CORED. GUD, GR: BTID» cosnittctlicnintaiinasiticlabnseidatistinninse

Zapp V. United Transp. Union, 879 F.2d 1439 (7th

Cir. 1989), cert. denied, 110 S.Ct. 722 (1990)...

STATUTES AND RULES

National Labor Relations Act

ee III Sepiiniuiccninstinsitlasnticiclichéddencahishens

BF a Oe te COD ccncttcscisncctnnastcnecetdénsscnticntie

eee Be ED csicsccischuinnnccitilsmiaididiaicadiacsabatd

ee es We EP widatvsccatindsicennceuialeiiiactensadehaddadataitin

Railway Labor Act, 45 U.S.C. § 151 et seq. 0000...

State Statutes

Cal. Prob. Code § 16460 (West Supp. 1989)...

Cal. Proc. § 343 (West 1981) 200.

Colo. Rev. Stat. Ann. § 13-80-101(f) (Brad-

ford 1987) ......... REL ee a RL exer fe, Sw

Ga. Code § 9-3-27 (Michie I ee

La. Rev. Stat. Ann. §9:2234 (West 1965 &

SU TOT cncescsotsenisiansstasasienee teeta

Minn. Stat. Ann. rr 541. 05 subd. 1(7) (West

BE -0ss0ssscsssctitnmeaniniaiinedaaaiaataenee eee

192) A ee

1987 _ needs EEN LER OE AO

DeaTomNS Comes BO BBL q..cancoccsceenssuctoscsceveesesssescenseees

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-189

FRANK LANDRY, et al.,

Cross-Petitioners,

Vv.

Ar LINE PILOTS ASSOCIATION, INTERNATIONAL, AFL-CIO,

TACA INTERNATIONAL AIRLINES, 8.A., et al.,

Cross-Respondents.

On Cross-Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF

CROSS-RESPONDENTS AIR LINE PILOTS

ASSOCIATION, INTERNATIONAL AND

CHARLES J. HUTTINGER IN OPPOSITION TO

CROSS-PETITION FOR CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals is reported at 901

F.2d 404, and is reproduced at App. A.’ The opinions of

1“App. -——” refers to the appendix annexed to the petition for

a writ of certiorari submitted by the Air Line Pilots Association,

International and Charles J. Huttinger in this case (No. 89-1925).

“R. ——~-” refers to the record on appeal.

2

the court of appeals on petitions for rehearing are re-

ported at 901 F.2d 404, 437, and are reproduced at App.

H and App. I. The unreported opinions of the United

States District Court for the Eastern District of Louisi-

ana are reproduced at App. C through App. E.

STATUTES INVOLVED

Set out in the attached appendix are the following

provisions of the National Labor Relations Act

(“NLRA”): 29 U.S.C. §§ 142(3) and 152(2), (3).

STATEMENT OF THE CASE

By this lawsuit, plaintiffs seek to set aside a collective

bargaining agreement which they contend was unlawfully

negotiated by their union, the Air Line Pilots Association,

International (“ALPA”), in breach of its duty of fair

representation (“DFR”) and by their employer, TACA

International Airlines, S.A. (“TACA”), in breach of the

pre-existing collective bargaining agreement. The suit

was not filed until one year after the challenged agree

ment was reached.

A. The Facts

The negotiations which are the subject of plaintiffs’

suit began in October 1983, when TACA and ALPA

sought to amend their existing collective bargaining

agreement. Shortly thereafter, TACA attempted to re-

locate its pilot base to E] Salvador, terminate the existing

agreement, and withdraw its recognition of ALPA. App.

A, 3a. On ALPA’s motion, TACA’s conduct was en-

joined. Jd. The Fifth Circuit affirmed, but held that

TACA could “relocate its pilot base, and effect the other

intended steps” provided that it did so in accordance

with the bargaining requirements of the Railway Labor

Act (“RLA”). Air Line Pilots Ass’n, Int’l v. TACA

Int’l Airlines, S.A., 748 F.2d 965, 972 (5th Cir. 1984),

cert. denied, 471 U.S. 1100 (1985).

3

Negotiations continued in 1984 and 1985. With the

assistance of the National Mediation Board, a July 24,

1985 “Pilots’ Agreement” was reached under which,

inter alia: ALPA would not oppose relocation of the pilot

base to El Salvador after August 31, 1985; the TACA

pilots could elect either to retain their positions with

TACA at the relocated pilot base or accept a specified

severance package; and TACA’s funding of the TACA

Pilots’ Retirement Plan (the “Plan’”) would cease as of

August 31, 1985, which, by the Plan’s terms, would

cause it to terminate. R.503-05. A December 17, 1985

“Settlement Agreement” resolved all disputes which had

arisen under the Pilots’ Agreement.

All of the plaintiffs who have joined in the cross-

petition accepted and received the severance package.* ~

B. Proceedings Below

1. District Court

A year after the Pilots’ Agreement was reached, 15

former TACA pilots (14 of whom had accepted the sev-

erance option and thereby received over $400,000, App.

A, 5a; R.68, 576) filed a “hybrid” DFR/breach of con-

tract claim against ALPA and TACA. Plaintiffs further

alleged that TACA, ALPA and Fringe Benefit Adminis-

2 Virtually all of “The Facts” set forth at pp. 3-9 of the cross-

petition (‘‘cross-pet.”) lack record support, and plaintiffs offer

none. For example, plaintiffs’ assertion that ALPA representative

Huttinger “lost his status to negotiate, to vote, to represent the

union,” cross-pet., p. 5, was found by the court below to conflict

with the uncontroverted evidence. App. A, 46a-47a. Plaintiffs’

claim that it was only this Court’s denial of certiorari in ALPA

v. TACA, 748 F.2d 965, which prompted the execution of a written

retirement plan in April 1985, cross-pet., p. 8, is spurious: cer-

tiorari was not denied until mid-May 1985. 471 U.S. 1100 (1985).

Because these and numerous other factual misstatements do not

“have a bearing on the question of what issues would properly be

before the Court if certiorari were granted,” Sup. Ct. R. 15.1, we

refrain from burdening the Court with a line-by-line refutation of

cross-petitioners’ bald assertions.

4

trators, Ltd. (““FBA”), the Plan Administrator, violated

ERISA/by delaying implementation of the Plan, failing

and refusing to disclose information about the Plan, and

paying Plan benefits to Huttinger, but not to plaintiffs.

ALPA and TACA filed motions to dismiss or, alter-

natively, for summary judgment, contending that the

DFR/breach of contract claim was barred by the statute

of limitations and that plaintiffs had failed to state a

viable ERISA claim against them. App. A, 7a.

While these motions were pending, plaintiffs made two

attempts to sidestep the limitations bar to their hybrid

claim. They first sought to have TACA found in con-

tempt of the injunction issued in 1983 in ALPA v. TACA

against relocation of the pilot base. This effort was re-

jected by the district court in Landry and by the judge

who issued the injunction. App. A, 7a. Then, for the

express purpose of avoiding the limitations bar to their

labor law claim, R. 467, plaintiffs amended their com-

plaint by repleading their RLA and ERISA claims as

an alleged violation of RICO by ALPA and TACA, add-

ing Huttinger as a defendant and trebling their damage

request to nearly $100 million.

The district court dismissed the DFR/breach of con-

tract claim as time-barred under DelCostello v. Interna-

tional Bhd. of Teamsters, 462 U.S. 151 (1983), and its

progeny, because it was not filed within six months after

the signing of the challenged 1985 ALPA-TACA agree-

ments. App. E, 95a, 99a. The ERISA claim was dis-

missed as against TACA and ALPA because plaintiffs

failed to demonstrate that these defendants were fidu-

ciaries with respect to the matters of which plaintiffs

complained. App. E, 95a-98a.

Thereafter, defendants moved to dismiss or, alterna-

tively, for summary judgment as to the RICO claim.

App. A, 8a. While those motions were pending, plain-

~ tiffs sought to resurrect their dismissed DFR/breach of

5

contract claim, id., contending that the court had “over-

looked the doctrine of equitable tolling.” Jd. The court

rejected this effort as “entirely without merit,’ App. D,

86a, and as indicative of the “constantly evolving nature

of plaintiffs’ claims.” R.1118. The following month, the

district court dismissed the RICO claim. App. C.

2. Court of Appeals

The .ourt of appeals affirmed the grant of summary

judgment to ALPA and TACA on the DFR/breach of

contract claim on limitations grounds, App. A, 10a-12a,

because that result was compelled by “{a] straight-for-

ward application of DelCostello....” App. A, 18a. The

court further affirmed the trial court’s determinations

that there was no basis for equitably tolling the limita-

tions period, App. A, 15a-16a, reopening the earlier

ALPA-TACA litigation, App. A, 16a-17a, or permitting

plaintiffs to escape the limitations bar by recharacteriz-

ing defendants’ actions as an improper decertification of

ALPA as bargaining representative (finding the last

issue to be within the exclusive jurisdiction of the Na-

tional Mediation Board). App. A, 17a.

The court affirmed dismissal of the RICO claim against

TACA but reversed as to ALPA and Huttinger, App. A,

38a-62a, and reversed the grant of summary judgment

on the ERISA claim. App. A, 18a-38a.

On matters not germane to the issues raised by the

cross-petition, the court granted in part, and denied in

part a petition for rehearing by ALPA and Huttinger.

App. H.

6

SUMMARY OF ARGUMENT

Plaintiffs contend that the six-month statute of limita-

tions established in DelCostello is inapplicable to their

hybrid DFR/breach of contract claim based upon the

asserted “facts of this case,” cross-pet., p. 12, and Chauf-

feurs, Local 391 v. Terry, 110 S.Ct. 1339 (1990). The

cross-petition finds no support in any post-DelCostello de-

cision, including Terry, and presents no issue meriting

Supreme Court review.

REASONS WHY THE WRIT SHOULD BE DENIED

The Application by the Court Below of DelCostello to

Plaintiffs’ “Hybrid” Duty of Fair Representation/ Breach

of Contract Claim is Consistent with all Post-DelCostello

Decisions and Does Not Merit Supreme Court Review

A. In DelCosteilo, this Court held that DFR/breach

of contract claims were subject to the six-month limita-

tions period for unfair labor practices (“ULPs”) found

in section 10(b} of the NLRA, 29 U.S.C. § 160(b). The

Court selected this limitations period in light of the close

“family resemblance” between ULP and DFR claims, 462

U.S. at 170, and because the § 10(b) six-month period

struck the “ ‘proper balance between the national inter-

ests in stable bargaining relationships and finality of

private settlements,’” and the interests of employees in

remedying the effects of asserted unjust union conduct.

Id. at 171 (quoting United Parcel Serv., Inc. v. Mitchell,

459 U.S. 56, 70 (1981) (Stewart, J., concurring)). In

addition, application of the six-month period insured

promptness and uniformity in the handling of DFR/

breach of contract claims. /d. at 168-69, 171. The Court

rejected application of differing state limitations periods

which could result in “radical variation in the treatment

of cases that are not significantly different” substan-

tively, id. at 166 n.16, tardy challenges to union/employer

conduct, id. at 168-69, and application of different limi-

—@@m@m@oelll

7

tations periods to the two components of a hybrid action.

Id. at 169 n.19.

B. The lower courts, contra cross-pet., pp. 12-14, have

uniformly applied DelCostello to all DFR claims,® even

where, unlike here, they have not been joined with claims

against employers,* or have arisen, as here, under the

RLA,® or involve allegations regarding union conduct in

% The cross-petition cites no post-DelCostello decision of this

Ccurt, contra cross-pet., p. 11 (heading under “I’’), or any lower

court decision, which even arguably conflicts with the statute of

limitations ruling below.

* Zapp v. United Transp. Union, 879 F.2d 1439, 1441 (7th Cir.

1989), cert. denied, 110 S.Ct. 722 (1990) ; Ratkosky v. United Transp.

Union, 843 F.2d 869, 873 (6th Cir. 1988); Eatz v. DME Unit of

Local 3, 794 F.2d 29, 33 (2d Cir. 1986); Engelhardt v. Consolidated

Rail Corp., 756 F.2d 1368, 1370 (2d Cir. 1985); Ranieri v. United

Transp. Union, 743 F.2d 598, 600 (7th Cir. 1984); Erkins v. United

Steelworkers, 723 F.2d 837, 838 (11th Cir.), cert. denied, 467 U.S.

1243 (1984).

5 App. A, lla (decision below); Kelly v. Buriington Northern

R.R., 896 F.2d 1194, 1197 (4th Cir. 1990); Alcorn v. Burlington

Northern R.R., 878 F.2d 1105, 1108 (8th Cir. 1989); Bailey v.

Chesapeake & Ohio Ry., 852 F.2d 185, 186 (6th Cir. 1988);

Smallakoff v. Air Line Pilots Ass’n, Int’l, 825 F.2d 1544, 1546 (11th

Cir. 1987); Triplett v. Local 308, Bhd. of Ry. Clerks, 801 F.2d 700,

702 (4th Cir. 1986); Brock v. Republic Airlines, Inc., 776 F.2d

523, 525-26 (5th Cir. 1985); United Indep. Flight Officers, Inc. v.

United Air Lines, Inc., 756 F.2d 1262, 1269 (7th Cir. 1985) ; Welyczko

v. U.S. Air, Inc., 733 F.2d 239, 240 (2d Cir.), cert. denied, 469 U.S.

1036 (1984); Sisco v. Consolidated Rail Corp., 732 F.2d 1188, 1192

(3d Cir. 1984); Barnett v. United Air Lines, Inc., 738 F.2d 358,

368-64 (10th Cir.), cert. denied, 469 U.S. 1087 (1984). See also

West v. Conrail, 481 U.S. 35, 38 n.2 (1987) (parties agree that

DelCostello applies to DFR claim under RLA).

Contra cross-pet., pp. 12, 15, plaintiffs have not and cannot assert

a claim under section 301 of the NLRA, 29 U.S.C. § 185, as RLA

employers and unions are not subject to the NLRA. 29 U.S.C.

§§ 142(3), 152(2), (3). See, e.g., in addition to App. A, 47a (the

ruling below); Brotherhood of R.R. Trainmen vy. Jacksonville

Terminal Co., 394 U.S. 369, 376 (1969); Fechtelkotter v. Air Line

Pilots Ass'n, Int’l, 693 F.2d 899, 903 n.8 (9th Cir. 1982); United

States v. Davidoff, 359 F. Supp. 545, 546-47 (E.D.N.Y. 1973).

8

negotiating agreements® or union misrepresentations.’

Because a DFR suit “implicates ‘those consensual proc-

esses that federal labor law is chiefly designed to promote

—the formation of the . . . agreement and the private

settlement of disputes under it,’”’ DelCostello, 462 U.S.

at 171 (citation omitted)—no principled reason exists,

and plaintiffs offer none, for applying a different limita-

tions period for DFR actions directed at union conduct in

negotiations than where union- administration of an

agreement is at issue.* See Reed v. United Transp. Un-

ion, 109 S.Ct. 621, 628 n.5 (1989) (recognizing Del-

Costello as applicable to union conduct in both negotia-

tions and contract administration); see also Barton

Brands, Ltd. v. N.L.R.B., 529 F.2d 793, 799 (7th Cir.

1976) (unfair labor practices—to which DFR actions

bear “family resemblance,” DelCostello, 462 U.S. at 170

—reach union conduct in negotiations) .°

6 Lea v. Republic Airlines, Inc., 903 F.2d 624, 633-34 (9th Cir.

1990); Zapp, 879 F.2d at 1441; Alcorn, 878 F.2d at 1108; Legutko

v. Local 816, Int’l Bhd. of Teamsters, 853 F.2d 1046, 1051 (2d Cir.

1988); Ratkosky, 843 F.2d at 873-74; Bailey, 852 F.2d at 187;

Eatz, 794 F.2d at 33; United Indep. Flight Officers, 756 F.2d at 1271;

Engelhardt, 756 F.2d at 1369; Erkins, 723 F.2d at 838.

7 E.g., Erkins, 723 F.2d at 837; Ray v. W.S. Dickey Clay Mfg. Co.,

584 F. Supp. 1225, 1227 (D. Kan. 1984).

8 Plaintiffs assert that DelCostello should not apply because plain-

tiffs were denied the opportunity “to bargain” or otherwise “settle”

with their employer, cross-pet., p. 13, but negotiations between em-

ployers and individual employees are barred as a matter of law

where, as here, there is a recognized bargaining representative.

Emporium Capwell Co. v. Western Addition Community Org., 420

U.S. 50, 62, 67-70 (1975); Order of R.R. Tel. v. Ratlway Express

Agency, 321 U.S. 342, 347 (1944); J.J. Case Co. v. N.L.R.B., 321

U.S. 332, 335-36 (1944).

® While plaintiffs claim that the limitations ruling below leaves

them remediless, cross-pet., pp. 11-12, the Fifth Circuit, by its treat-

ment of the RICO claim, has permitted plaintiffs to bypass the limi-

tations bar, and potentially to secure three times the damages they

sought through their time-barred DFR claim, by simply repackaging

9

C. Contrary to plaintiffs’ cross-petition, pp. 14-16,

nothing in Terry addresses or “revisits,” let alone pur-

ports to replace, alter or “reconsider” the holding of Del-

Costello.” The issue in Terry—whether an employee who

seeks backpay in a DFR action “has a right to trial by

jury,” 110 S.Ct. at 1342—required the Court to “look

for an analogous cause of action that existed in the 18th

century.” Id. at 1345. The Court neither stated nor sug-

gested that the action to which this analysis led—a bene-

ficiary’s suit against a trustee—bore a closer “family

resemblance” to a DFR action than an unfair labor prac-

tice charge. Because ULPs did not exist in the 18th cen-

tury, such comparison could not have been made in ad-

dressing the jury trial issue in Terry.”

it as a RICO action. This result, which directly conflicts with funda-

mental federal labor law policy and decisions of this Court and

other circuits, is addressed in the pending petition for certiorari of

ALPA and Huttinger in this action (No. 89-1925).

10 Plaintiffs’ discussion of Terry demonstrates the facial incon-

sistency in the cross-petition. In part I, plaintiffs argue not that

DelCostello is dead law, but that it only applies to union conduct

in administering a contract, which is exactly what was at issue in

Terry. 110 S.Ct. at 1343. The thrust of Part II of the cross-petition

is that Terry overrules DelCostello sub silentio in all DFR contexts.

11 Decisions pre-dating Terry which upheld a right to jury trial

in a DFR action considered the DelCostello statute of limitations

analysis to have “no application to an issue of the right to trial by

jury.” Terry v. Chauffeurs, Local 291, 863 F.2d 334, 338 (4th Cir.

1988), aff'd, 110 S.Ct. 13839 (1990). Accord Quinn v. Digiulian, 739

F.2d 637, 646 (D.C. Cir. 1984); Nicely v. USX, 709 F. Supp. 646,

650-51 (W.D. Pa. 1989); Massey v. Whittaker Corp., 661 F. Supp.

1151, 1153 n.2 (N.D. Ohio 1987) ; Palmer v. Metro-North Commuter

R.R., 661 F. Supp. 1178, 1179 (S.D.N.Y. 1987); Grider v. C.V.

Monin, 637 F. Supp. 324, 326 (M.D. Tenn. 1986).

Since Terry, the lower courts have continued to apply the six-

month limitations period to DFR claims. E.g., Lea, 903 F.2d at 633-

34; Lucas v. Mountain States Tel. & Tel., 134 L.R.R.M. (BNA)

3065, 3065-66 (10th Cir. 1990) (per curiam); Ostojic v. National

Cleaning Co., 736 F. Supp. 177, 179 (N.D. Ill. 1990).

10

Further, regardless of the similarity between a bene-

ficiary’s action against a trustee and a DFR action, the

former still “suffers from objections peculiar to the reali-

ties of labor relations and litigation,” as noted in Del-

Costello, 462 U.S. at 167. For example, the Court there

found a three-year malpractice limitations period un-

acceptably long. Jd. at 168-69. While the Louisiana

trust statute which plaintiffs seek to substitute for the

DelCostello period has a one-year limitations period, La.

Rev. Stat. Ann. § 9:2234 (West 1965 & Supp. 1990),

other states apply far lengthier limitations periods to

such actions.’* Moreover, because a trust action is not

analogous to a breach of contract claim against an em-

ployer, the latter would be subject to a different limita-

tions period than applicable, under plaintiffs’ proposal, to

the DFR half of the hybrid action, a result DelCostello

found unacceptable. 462 U.S. at 169 n.19. See also Reed,

109 S.Ct. at 627 n.4 (“important” consideration in Del-

Costello in departing from “normal practice of borrow-

ing state statute of limitations” was that a hybrid action

“yokes together interdependent claims that could only

very impractically be treated as governed by different

statutes of limitations’’).

12 F.g., 10 year limitations period: Ga. Code § 9-3-27 (Michie

1982) ; Miss. Code Ann. § 15-1-39 (Lawyers’ Coop. 1972) (for equi-

table actions) ; see Wholey v. Cal-Maine Foods, Inc., 530 So.2d 136,

139 (Miss. Sup. Ct. 1988); 6 years: Minn. Stat. Ann. § 541.05 subd.

1(7) (West 1988); New York—see Public Serv. Co. v. Chase Man-

hattan Bank, 577 F. Supp. 92, 109 (S.D.N.Y. 1983); Lonengard v.

Santa Fe Indus., 70 N.Y.2d 262, 267, 519 N.Y.S.2d 801, 804 (1987);

$3 or 4 years (depending on factual circumstances): Cal. Prob. Code

§ 16460 and Leg. Committee Comment (West Supp. 1989); Cal.

Proc. § 343 (West 1981); 3 years: Colo. Rev. Stat. Ann. § 13-80-

101(f) (Branford 1987); Wash. Rev. Code Ann. § 11.96.060 (West

1987); North Carolina—see Tyson v. North Car. Nat’l Bank, 305

N.C, 136, 286 S.E.2d 561, 565 (1982).

emer caeraeina teeta ie

11

CONCLUSION

For the foregoing reasons, the cross-petition for a

writ of certiorari should be denied.

Respectfully submitted,

‘ STEPHEN B. MOLDOF

Counsel of Record

ANN E. O’SHEA

MICHAEL L. WINSTON

THOMAS N. CIANTRA

COHEN, WEISS AND SIMON

330 West 42nd Street

New York, New York 10036

(212) 563-4100

Attorneys for Cross-Respondents

Air Line Pilots Association,

International and

Charles J. Huttinger

APPENDIX

la

APPENDIX

National Labor Relations Act, 29 U.S.C. § 141 et seq.:

29 U.S.C. § 142. Definitions

When used in this chapter—

(3) The terms “commerce”, “labor disputes”, “em-

ployer’, “employee”, “labor organization”, “representa-

tive”, “person”, and “supervisor” shall have the same

mearing as when used in subchapter II of this chapter.

Subchapter II—National Labor Relations

29 U.S.C. § 152. Definitions

When used in this subchapter—

(2) The term “employer” includes any person acting

as an agent of an employer, directly or indirectly, but

shall not include the United States or any wholly owned

Government corporation, or any Federal Reserve Bank,

or any State or political subdivision thereof, or any per-

son subject to the Railway Labor Act [45 U.S.C.A. § 15)

et seq.], as amended from time to time, or any labor

organization (other than when acting as an employer),

or anyone acting in the capacity of officer or agent of

such labor organization.

(3) The term “employee” shall include any employee,

and shall not be limited to the employees of a particular

employer, unless this subchapter explicitly states other-

wise, and shall include any individual whose work has

ceased as a consequence of, or in connection with, any

current labor dispute or because of any unfair labor

2a

practice, and who has not obtained any other regular and

substantially equivalent employment, but shall not include

any individual employed as an agricultural laborer, or

in the domestic service of any family or person at his

home, or any individual employed by his parent or spouse,

or any individual having the status of an independent

contractor, or any individual employed as supervisor, or

any individual employed by an employer subject to the

Railway Labor Act [45 U.S.C.A. §151 et seq.], as

amended from time to time, or by any other person who

is not an employer as herein defined.