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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990

## Text

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2579%3A2. Public record. Not legal advice.