Petition for Writ of Certiorari — Air Wisconsin Pilots Protection Committee v. Sanderson

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90-848

IN THE

Supreme Court of the United States

OcrTosBEer TERM, 1990

AIR WISCONSIN PILOTS PROTECTION

COMMITTEE, JAMES M. FENSKE, GARY M.

PELACH, RICHARD J. MAGIERA and

THOMAS K. BLY,

Petitioners,

CLIFFORD R. SANDERSON, TRUSTEE and ACTING

CHAIRMAN OF AIR WISCONSIN MASTER

EXECUTIVE COUNCIL, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ARTHUR M. WISEHART

Counsel of Record

WISEHART & KOCH

Attorneys for Petitioners

25 West 43rd Street

New York, New York 10036

(212) 730-0044

oo —— 2 _ le ee ~ - ees - 2.

QUESTIONS PRESENTED

1. Did the Seventh Circuit's grant of

summary judgment improperly deny Air

Wisconsin pilots a right to trial on

their claim that their free speech,

voting and other Landrum-Griffin rights

were infringed in connection with the

imposition of a union trusteeship?

2. In Duty of Fair Representation

cases, does the restrictive standard

followed by the Seventh Circuit unduly

circumscribe the rights of union-

represented employees to an effective

judicial remedy?

3. Are disputed contractual rights of

union members arising from a_ union

constitution and related documents

subject to drastically different rules

of interpretation by the courts than the

contractual rights of other parties

litigant?

LIST OF PARTIES

TO PROCEEDINGS BELOW

AIR WISCONSIN PILOTS PROTECTION

COMMITTEE, JAMES M. FENSKE, GARY M.

PELACH, RICHARD J. MAGIERA and THOMAS Kk.

BLY,

Petitioners,

Vv.

CLIFFORD R. SANDERSON, TRUSTEE and

ACTING CHAIRMAN OF AIR WISCONSIN MASTER

EXECUTIVE COUNCIL, AIR LINE PILOTS

ASSOCIATION, INTERNATIONAL, WILLIAM P.

HALE, TRUSTEE, and DENNIS’ HIGGINS,

TRUSTEE,

Respondents.

TABLE OF CONTENTS

QUESTIONS PRESENTED..........-

LIST OF PARTIES TO

PROCEEDING BELOW........seeee.

TABLE OF Geet ececcecceseee

TABLE OF AUTHORITIES..........

PETITION FOR WRIT OF

COPE e ccm eeecenesceneseoes

OPINIONS th 656606808668 066

WUE eUMseaeeescceccces eeee#eses

STATUTES INVOLVED.........2..--.

STATEMENT OF THE CASE.........

DEEP b abe ebeeasee teeeececec

I. THE QUESTION OF THE

LANDRUM-GRIFFIN RIGHTS

OF THE UNION DISSIDENTS

WARRANTS REVIEW..........

II. THE TREATMENT OF AN

ARBITRATION AWARD AS AN

IMMUTABLE NEGATION OF

BARGAINING DUTIES RAISES

SERIOUS RAILWAY LABOR

ACT 0

iii

III. THE SEVENTH CIRCUIT'S

“INTENTIONAL VIOLATION"

STANDARD CONFLICTS WITH THE

LESS RESTRICTIVE STANDARD

FOLLOWED BY ALL OTHER

CIRCUITS IN DFR CASES.... 37

IV. THE USE OF DRASTICALLY

DIFFERENT RULES OF

INTERPRETATION OF THE

CONTRACTUAL RIGHTS OF

UNION MEMBERS, AS OPPOSED

TO OTHER PARTIES LITIGANT,

WARRANTS REVIEW.......... 50

RE 60

CASES

Air Wisconsin Pilots

Protection Committee

v. Sanderson, 909 F.2d 213

(7th Cir. 1990) wcccccccccccecce

W ' t i

Union No. 6, mae

110 S.Ct. 424 (1989)...........

Hotel & Restaurant

Employees & Bartenders

v. Rollison, 615 F.2d 788

(9th CiP. 2980). .ccccccces

253 F.2d 149

(7th Cir. 1958) wcccccccccs

Lamb _v. Miller,

660 F.2d 792

(D.D.C. 1984).....26-. eee e

Local Union No. 657 v.

Sidell, 552 F.2d 1250

(7th cir. 1977) weccececcce

22-

24,

27,

35,

45,

53,

‘

853 F.2d 186

1 Cir. AGBS) cccccccsccccccce

M._liwright Local No. 1079

v. United Brotherhood of

Carpenters & Joiners,

878 F.2d 960 (6th Cir. 1989)..

Newell]_v. International

Workers, 789 F.2d 1186

(5th Cir. BOOS eS eecesceceveces

Perry v. International

Longshoremen's Assn.,

638 F. Supp. 1441

(S.D.N.Y. BROOD Seeoccccccccecce

Pignotti v. Local 3,

Sheet Metal Workers,

343 F. Supp. 236,

(D. Neb. 1972), aff'd,

477 F.2d 825 (8th Cir.),

cert. denied, 414 U.S.

1067 eo ST TeV ETE EETTTTe

Plumbers & Pipefitters

v. Local 334, Plumbers

& Pipefitters,

Sie Watts UR GAMES oc cc cc cccss

YY,

’

890 F.2d 1264 (2d Cir. 1989)....

Sabolsky v. Budzanski,

457 F.2d 1245 (3d Cir.)

cert. denied,

409 U.S. 853 (1972) wc ccccveceee

U.S. .

209 Bi GE. G80 CROSS)... cccccees

Vaca v. Sipes,

386 U.S. 171 (1967) ..cccccccces

Virginian Railway Co.

’

330 Webbe 315 C1937) wccccccccccs

United Steelworkers

v. American Mfg. Co.,

Tie we ©. |

United Steelworkers

v. Enterprise Wheel

and Car Corp.,

TE ee

v. Warrior & Gulf

’

SG ee ROOD cc wc cccccces

Textile Workers

v. Lincoln Mills,

333 G.8. S68 (2987) ....:. haa’

Thomas v. United

Parcel Service, Inc.,

890 F.2d 909 (7th Cir. 1989)...

vii

26-29

STATUTES

28 WeBeGe § 1254(1) -ccccccccces 5

The Labor-Management

and Disclosure Act of 1959

("Landrum-Griffin Act")

29 U.S.C. § 401 et seq....... 1, 5,

22, 23

24-25

27-28

Section 101(a)(1),

29 J.8.C. § 411(a) (1) eeeees 5-6

Section 101(a) (2),

29 U.S.C. § 411(a)(2)...... 6, 30

Section 302,

29 U.S.C. § ith ateée4eee 6 8 & 7, 28

Section 304,

29 U.S.C. § 464(C) .ccccccce 7-8

The Railway Labor Act

45 U.S.C. §§ 151 et seq.... 8, 28

45 U.S.C. §§ 181-182....... 8

Section 2,

45 U.S.C. § 152 First...... 8, 33

34, 40

Section 2,

45 U.8.C. § 152 Third...e.. 8-9

viii

OTHER AUTHORITIES

Frank Elkouri & Edne Elkouri.

(1985-87 Supplement)

(Washington, D.C.: BNA 1988)... 36

See Holzhauer, The

Contractual Duty of

63 Chi-Kent

L. Rev. 255 (1987) ..ccceccccves 44

Restatement of Contracts

BG © BSSccccoceceseeeces *e ff ee @ 53

Williston on Contracts,

xe + ©£ SS Ree 53-55

’

Wisehart, "Transportation

Strike Control Legislation:

A Congressional Challenge,"

66 MICH.L.REV. 1697 (1968)..... 31

No. 90-

In the Supreme Court

of the

United States

AIR WISCONSIN PILOTS PROTECTION

COMMITTEE, JAMES M. FENSKE, GARY M.

PELACH, RICHARD J. MAGIERA and THOMAS K.

BLY,

Petitioners,

Vv.

CLIFFORD R. SANDERSON, TRUSTEE and

ACTING CHAIRMAN OF AIR WISCONSIN MASTER

EXECUTIVE COUNCIL, AIR LINE PILOTS

ASSOCIATION, INTERNATIONAL, WILLIAM P.

HALE, TRUSTEE, and DENNIS’ HIGGINS,

TRUSTEE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners Air Wisconsin Pilots

Protection Committee, James M. Fenske,

Gary M. Pelach, Richard J. Magiera and

Thomas kK. Bly, plaintiffs in the

proceedjings below, respectfully request

that a writ of certiorari issue to

review the judgment and decision of the

United States Court of Appeals for the

Seventh Circuit filed on July 30, 1990.

By an order of this Court dated October

20, 1990, the time for filing a petition

for a writ of certiorari in the above

entitled case was extended to and

including November 27, 1990.

OPINIONS BELOW

The opinion of the United States

Court of Appeals for the Seventh

Circuit, Air Wisconsin Pilots Protection

Committee v. Sanderson, is found at 909

F.2d 213 (7th Cir. 1990). The

unreported decision of the United

States District Court for the Northern

District of Illinois (Eastern Division)

is set forth in the Appendix at pages

4a-20a.1

lcitations followed by the suffix

"a" refer to the Appendix annexed

hereto. Citations preceded by the

prefix "A" refer to the Appendix filed

by petitioners filed in the United

States Court of Appeals in the Seventh

Circuit.

JURISDICTION

This Court has jurisdiction under 28

U.S.C. § 1254(1). The judgment of the

Court of Appeals was entered on July

30, 1990. The time for petitioning for

certiorari was extended to and including

November 27, 1990, by an order of this

Court. (1la.)

STATUTES INVOLVED

The Labor-Management and Disclosure

Act of 1959 ("Landrum-Griffin Act"), 29

U.S.C. §§ 401 et seq., contains

provisions guaranteeing the free speech

and voting rights of union members, and

protects them against abusive

trusteeships imposed upon subordinate

bodies or officers.

Section 101(a)(1), 29 U.S.C. §

411(a)(1), provides in pertinent part

that every union member

"... Shall have equal rights and

privileges within such

organization . . . to vote in

elections or referendums of the

labor organization . . . and to

participate in the deliberations

and voting upon the business of

such meetings, subject to the

reasonable rules and regulations

in such organization's

constitution and bylaws."

Section 101(a)(2), 29 U.S.C. §

411(a)(2), guarantees to a union member

the

",.. right to meet and assemble

freely with other members; and to

express any views, arguments, or

Opinions; and to express at

meetings of the labor

organizations his views .. . upon

any business properly before the

meeting, subject to the

organization's established and

reasonable rules pertaining to the

conduct of meetings: Provided,

That nothing herein. shall be

construed to impair the right of a

labor organization to adopt and

enforce reasonable rules as to the

responsibility of every member

toward the organization as an

institution and to his refraining

from conduct which would interfere

with its performance of its legal

or contractual obligations."

(Emphasis added.)

Section 302, 29 U.S.C. § 462,

provides that trusteeships over a

subordinate union body must be

established must be established

",..only in accordance with the

constitution and bylaws of the

organization which has_ assumed

trusteeship over the subordinate

body and for the purpose of

correcting corruption or

financial malpractice, assuring

the performance of collective

bargaining agreements or other

duties of a bargaining

representative, restoring

democratic procedures, or

otherwise carrying out the

legitimate objects of such labor

organizations." (Emphasis added.)

Section 304(a), 29 U.S.C. § 464(a),

provides in pertinent part:

"Any member or subordinate body of

a labor organization affected by

any violation of this title

(except section 301) may bring a

civil action in any district court

of the United States having

jurisdiction of the labor

organization for such relief

(including injunctions) as may be

appropriate."

Section 304(c), 29 U.S.C. § 464(c),

provides in pertinent part:

"After the expiration of the

eighteen months the trusteeship

such proceeding and its

discontinuance shall be decreed

unless the labor organization

shall show by clear and convincing

proof that the continuation of the

trusteeship is necessary for a

purpose allowable under’ section

302." (Emphasis added.)

Under the Railway Labor Act, as

amended, 45 U.S.C. §§ 151 et seq.,

which is made applicable to air carriers

by 45 U.S.C. §§ 181-182, Section 2, 45

U.S.C. § 152 First, provides in

pertinent part that bargaining agents

have the duty

",..to exert every reasonable

effort to make and maintain

agreements, concerning rates of

pay, rules, and working

conditions, and to settle all

disputes, whether arising out of

the application of such agreements

or otherwise, in order to avoid

any interruption to commerce or to

the operation of any carrier

growing out of any dispute

between the carrier and the

employees thereof."

Section 2, 45 U.S.C. § 152 Third,

provides in pertinent part that

",.. [rjepresentatives, for the

purpose of this chapter, shall be

designated by the respective

parties without interference,

influence, or coercion by either

party over the designation of

representatives by the other; and

neither party shall in any way

interfere with, influence, or

coerce the other in its choice of

representatives...."

STATEMENT OF THE CASE

This case involves a_trusteeship

imposed in 1986 by the Air Line Pilots

Association, International ("ALPA").

The trusteeship was imposed against a

subordinate unit of ALPA referred to as

the Air Wisconsin Master Executive

Council ("MEC") and against the chief

officers thereof, who were removed from

office at the same time.

The trusteeship was imposed in

November 1986, several months after a

group of Air Wisconsin pilots. had

unsuccessfully attempted to replace

ALPA as the bargaining representative

for Air Wisconsin pilots. (A-19.)

The plaintiffs in this action include

James M. Fenske, Chairman of the MEC,

and two of the other officers of the MEC

elected by Air Wisconsin pilots, Gary M.

Pelach, the Secretary-Treasurer and

Richard J. Magiera, a member of the MEC,

all of whom were removed from office by

ALPA. (A-13.) Other parties plaintiff

include the Air Wisconsin Pilots

Protection Committee and Thomas kK. Bly,

Chairman.

Defendants include ALPA and uneee of

the four trustees who have been

appointed by ALPA in succession to

replace Fenske as Chairman of the MEC.

During the four-year period of the

trusteeship, the trustees exercised

dictatorial powers over the functions

normally performed by officers of their

choice elected by the Air Wisconsin

pilots.

An assistant trustee, Ted Fergus, was

appointed by ALPA. Although he was an

assistant trustee, Fergus filed an

affidavit below that strongly objected

to the trustee's actions in suppressing

the expression of the views of the Air

Wisconsin pilots for the purpose of the

negotiation of a new collective

bargaining agreement. (A-463-470.)

The reason assigned by ALPA for

trusteeship was that Fenske, as Chairman

of the MEC, had a_e secret ballot

conducted by the Honest Ballot

Association, to ascertain the desires of

the Air Wisconsin pilots with respect to

a revised seniority list. The revised

list would modify a seniority list that

had become a part of the collective

bargaining agreement as a result of an

arbitration conducted in 1985 when a

smaller airline, Mississippi Valley, was

merged into Air Wisconsin.

The arbitration was an outgrowth of a

procedure contained in ALPA's Merger

olicies iv

Provisions issued in January 1985. (A-

102.)

The arbitration panel, chaired by

Rolf Valtin, found that as a group, the

Air Wisconsin pilots "..,. were the older

pilots - - both in terms of age and in

terms of length of service with their

company." (A-139; footnote omitted.)

Nevertheless, the seniority list

resulting from the arbitration put

Mississippi Valley pilots ahead of more

senior Air Wisconsin pilots as a result

of a "job lumping" approach used by the

arbitrators. The "job lumping" approach

was based upon the differing types of

aircraft flown by the’ respective

carriers at the time of the merger. (A-

148-149.)

Since the aircraft flown by

Mississippi Valley were relatively

smaller than those flown by Air

Wisconsin, the Mississippi Valley group

received a disproportionately large

share of captains in the combined work

force. The Air Wisconsin pilots

therefore received more junior positions

than otherwise would have been the case.

(A-148-149.)

The arbitration award is dated

October 7, 1985. (A-168.)

Following the issuance of the

arbitration decision, the resulting

seniority list was incorporated into the

new collective bargaining agreement for

the merged airlines. (A-16.)

The resulting collective bargaining

agreement had a termination date of

October 31, 1988. (A-16.)

In the secret ballot conducted by the

Honest Ballot Association, the Air

Wisconsin Pilots voted 88-25 in favor of

adopting a proposal for ae revised

seniority list that had been developed

by the Master Executive Council. The

revised seniority list embodied the

date-of-hire principle, and was

prospective in its application only.

(A-20.)

The ballot had been conducted at the

specific request of two elected

officials of ALPA Local Council 50 on

Air Wisconsin. (A-348.)

The trusteeship was imposed on the

grounds that such action constituted an

effort "to change the final and binding

nature of the seniority list resulting

from an arbitrated award under ALPA

merger policy by a majority vote,

conducted outside the auspices of the

Association ...." (A-23.)

Tne district court granted

defendants' motion for summary judgment,

and dismissed the case. It did so

notwithstanding substantial issues of

material fact shown in the affidavits

filed by plaintiffs. (4a-20a.)

In this defense, Chairman Fenske

stated that on two prior occasions in

that same year, s’milar ballots’ had

been conducted, and that he previously

had been told by an officer of ALPA

"that if we could come up with something

that a majority of the pilots wanted,

that the Airline Pilots’ Association

would then stand behind it." (A-350-

351.)

In addition, Fenske's affidavit

stated that the appointment of a trustee

was unwarranted because any future

agreement to change the seniority list

would have to be signed by the President

of ALPA in any event. (A-351.)

Fenske's affidavit also made a

showing of shocking violations of his

right to a fair hearing when the appeal

of his removal and the imposition of the

trusteeship reached the level of the

ALPA Board of Trustees in October 1988.

(A-362-367.)

In addition, the affidavits of Fenske

and others showed that ALPA used the

trusteeship as a means of influencing

the outcome of the representation

election conducted in January 1989. (A-

366-369.)

Whereas ALPA had won the 1986

election by 13 votes (A-19), its margin

was reduced to five votes by the time of

the January 1989 election. (A-461.)

Substantial evidence of acts of

interference and intimidation by ALPA to

influence the outcome of the election

was presented. (A-450-454; 496-499.)

Therefore, since a change in only

three votes would have changed the

outcome of the 1989 election, it was

shown that but for such activities of

interference and coercion by ALPA and

its trustee, ALPA would have been voted

out. (A-450-451.)

The district court incorrectly

granted summary judgment on the basis

that “in this case Fenske has not been

removed" (17a) notwithstanding a clear

showing to the contrary from

defendants' own documents. (A-313)

The district court also incorrectly

stated, "There is no membership right to

vote." (18a.)

As stated above, similar votes on the

same subject had previously been

conducted on two prior occasions. (A-

350.)

In addition, the ALPA Constitution

and By-Laws provide that such ballots

may be conducted at the "option" of the

MEC. (A-78.)

In addition, under the ALPA

Constitution and By-Laws, the Air

Wisconsin pilots had a clear right to

vote for their representatives on the

MEC who were removed by ALPA. (A-53, A-

56.)

The MEC is a subordinate unit of ALPA

established under its Constitution and

By-Laws. The powers of the MEC are

broad in scope (A-56):

C. The Master Executive Council of

an airline is empowered to make

the final decision on any problem

or problems of the members of that

airline except as provided

elsewhere in the Constitution and

By-Laws. The decisions of the

Master Executive Council shall be

considered as the decisions of the

members of the airline and shall

be acted upon accordingly.

However, nothing in this Section

shall authorize any Master

Executive Council to initiate any

action that is inconsistent with

this Constitution and By-Laws or

with the best interests of the

Association or the general

membership."

The decision of the district court in

granting summary judgment was affirmed

by the Seventh Circuit. The Seventh

Circuit ignored the errors of the

district court referred to above.

In addition, the Seventh Circuit

incorrectly stated (909 F.2d at 214):

"The facts are not in dispute."

As shown below, a substantial number

of issues of material fact were in

dispute.

Review by this Court is warranted

because of the abuse of summary judgment

procedures in a case involving important

free speech and voting rights guaranteed

to union members.

Non-Record Subsequent Developments

It is anticipated that respondents

will seek to avert the issuance of a

writ of certiorari on grounds of recent

developments that are not of record.

It is our understanding that the

trusteeship was abruptly terminated on

or about October 28, 1990, shortly after

respondents became aware on October 20,

that petitioners' request for an

extension of time within which to file

the petition for a writ was extended by

an order of Mr. Justice Stevens. (la.)

The abrupt termination of the

trusteeship followed on the heels of the

signing of a five-year collective

bargaining agreement (two years back,

and three forward) negotiated by the

trustee and his hand-picked negotiating

committee.

Although the contract was called

"concessionary," a more apt terminology

would be "sweetheart."

The contract is in the nature of

"fruit of the poisonous tree" that

perpetuates the evils of the trusteeship

three years into the future.

Not only is the arbitrated seniority

list continued unnegotiated and hence

unchanged thereunder, but substantial

changes were made by locking in the Air

Wisconsin pilots to compulsory, dues-

paying provisions under which they are

deprived of their rights under their

customary grievance procedure.

ALPA's true motive has become

apparent in that it has already used

provisions in the new contract as a

basis for instituting disciplinary

proceedings to harass the Air Wisconsin

pilots whose objection to the four-year

trusteeship has taken the form of

withholding dues on the grounds that

they were not being represented by their

collective bargaining "agent," but by

non-elected trustees.

Further, the claims of the Air

Wisconsin pilots for damages as a result

of actions in violation of their claim

of contractual rights under the ALPA

Constitution and By-Laws, and also under

the ALPA Merger Policies and Related

Employee Protective Provisions continue

unaffected by the dissolution of the

trusteeship.

ARGUMENT

I. THE QUESTION OF THE LANDRUM-

GRIFFIN RIGHTS OF THE UNION

DISS W

The opinion below assumes that,

because the Air Wisconsin pilots lost

representation elections, they were bad

losers not deserving of a judicial

remedy under the Landrum-Griffin Act.

(909 F.2d at 215.)

It is submitted that, in such

circumstances, the intra-union voting

and free speech rights guaranteed by the

Landrum-Griffin Act are more, not less,

important.

The anti-judicial remedy bias

inherent in the mindset of the Court is

apparent from the language of the

Seventh Circuit's opinion. The

"disgruntled" Air Wisconsin pilots,

having “struck out ... twice in the

electoral marketplace," and “undaunted"

by defeat, "refused to call it quits,"

and instead "turned to the courts" in

what the writer of the opinion refers

to, with evident distaste, as "the

characteristic style of modern

Americans ...." (909 F.2d at 215.)

It is submitted that, in our

Constitutional system, it is for

Congress to say whether the public

interest requires a judicial remedy to

be made available, and it is not the

province of the Courts to erect

artificial barriers to such remedies as

may be created by Congress in statutes

such as the lLandrum-Griffin Act, no

matter how much individual judges may

disagree with the premises of such

statutory remedies as may be provided.

Having decided the case on summary

judgment, under the strict subjective

"intentional violation" standard

employed by the Seventh Circuit in Duty

of Fair Representation cases ("nothing

more is required to comply with the duty

of fair representation ... so long as

the union does not intentionally harm a

member or class of members" [909 F.2d

at 216]), the Court apparently was

unaware (a) that ALPA is the dominant

pilots' union in the airline industry

and (b) that pilots in a small feeder

airline accordingly would only with

great reluctance give up their ALPA

membership entree' to high-paying jobs

in the majors.

The question of whether Congress

intended a judicial remedy to be

withheld when a= possible electoral

remedy could create irreparable injury

of its own because of the existence of a

partial labor monopoly is of great

importance.

The Seventh Circuit also engaged in

circular reasoning in that it chose to

give weight to evidence that a motive

for the trusteeship was to retaliate

against and punish those deemed

responsible for the election attempt by

an independent union (21la-22a, 26a-27a)

and that but for direct interference by

ALPA under the auspices of the third

trustee put into the position, the

independent union would have won the

second election (28a.)

The illogic of the Seventh Circuit's

view that dissidents vulnerable to a

dominant union's power structure are

less deserving of judicial remedies that

Congress provided in the Landrun-

Griffin Act than are victims of other

types of discrimination is readily

apparent.

The Seventh Circuit stated, "It

cannot be said too often that the

judicial remedies available to employees

unhappy with their collective bargaining

representative are highly limited."

(909 F.2d at 217.)

However, that is not what this Court

said when it decided Sheet Metal

Workers' Association v. Lynn, __ U.S.

__, 109 §.Cts 639 (1989), a decision

that came down after the two prior

Seventh Circuit decisions on which that

court principally relied.

2 W ‘, Supra,

reinforces the point that a major

objective of the Landrum-Griffin Act is

insuring internal democracy within

unions by protecting the right to

discuss and criticize union policies and

leadership.

The Seventh Circuit would neuter the

Landrum-Griffin remedies by withholding

their availability from subordinate

union officials.

Although Sheet Metal Workers' is

perfunctorily cited in the opinion (909

F.2d at 219), the statement immediately

following -- "but they are not entitled

to continue to exercise a trust that

they have abused" -- is notably

circular. Whether conducting a ballot

to ascertain the desires of the

membership, in accordance with past

practice, and powers conferred by the

constitution, is an “abuse" of a trust,

or the proper implementation of such a

trust, is a matter of serious concern,

particularly in light of the Landrum-

Griffin Act's express purpose of

etanenteenneenente

"restoring democratic procedures ...."

(29 U.S.C. § 462.)

The pertinent question is whether to

discuss and debate the proper

interpretation of the ambiguous Merger

Policies and

Protective Provisions document issued by

ALPA only a short time before, in the

beginning of 1985 (A-102), constitutes

an "abuse" of the position of a

subordinate union official or, instead,

an essential part of the functioning of

the democratic process itself.

If union policies are not to be

evolved through the process’) of

discussion and argument by both union

officials and members, just how are they

to be evolved is left unanswered by the

Seventh Circuit's opinion.

However, the question was not left

unanswered in the Sheet Metal Workers'

case. That case holds that the removal

of an elected union subordinate union

official for exercising his Landrunm-

Griffin free speech rights to oppose and

criticize union policies carried out in

the process of a trusteeship violated

the Landrum-Griffin Act.

The district court's attempt to

distinguish Sheet Metal Workers' on the

ground that that case involved free

speech on matters "not legitimately

related to any union concern" (17a),

trivializes the nature of the guarantee

of free speech rights, amd mis-reads the

purport of this Court's decision.

When the views expressed are related

to matters of direct union concern, free

speech becomes vastly more important

than when they are not.

The district court's attitude is also

inconsistent with the language of the

Landrum-Griffin Act that guarantees a

member's right to “express any views,

arguments, or opinions ...." (29 U.S.C.

§ 411(a) (2); emphasis added.)

Free speech rights are not worth much

if they do not include the right either

to debate the proper interpretation or

to seek modification of policies

unilaterally proclaimed by a = union

hierarchy. The district court's

limitation of free speech to matters

"not legitimately related to any union

concern" (17a) could hardly have been

what Congress intended to protect when

it enacted the Landrum-Griffin Act.

II. THE TREATMENT OF AN ARBITRATION

AWARD AS AN IMMUTABLE NEGATION

OF BARGAINING DUTIES RAISES

SERIOUS RAILWAY LABOR ACT ISSUES

Collective bargaining agents are

created and given special statutory

status for one reason and one reason

only: to engage in collective

bargaining.

This was done under the Railway Labor

Act for an important public purpose: to

avoid interruptions to the services

provided by common carriers caused by

dissatisfaction with rates of pay, rules

and working conditions’ through

collective bargaining. (45 U.S.C. § 152

First.) See Wisehart, "Transportation

Strike Control Legislation: &

Congressional Challenge," 66 MICH.L.REV.

1697 (1968).

Seniority has long been a central

item in labor negotiations, so much so

in fact that it has been held to be a

"mandatory" requirement of the duty to

bargain. J.I. Case v. NLRB, 253 F.2d

149, 153 (7th Cir. 1958).

However, the effect of the decision

below is to foreclose forever bargaining

over an arbitrated seniority list that

became part of the bargaining agreement

following the merger of Mississippi

Valley into Air Wisconsin.

It matters not, sabes to the

courts below, that the arbitration award

was an ad hoc adjustment based upon the

configuration of the fleets of aircraft

that existed at that instant of time in

a rapidly changing industry. (A-146:

"We disregard the parties' respective

forecasts for 1986 and beyond ....")

Nor did it matter that the

arbitration itself was an "interest"

arbitration as opposed to a "rights"

arbitration, the end result of which was

merely to become part of the collective

bargaining agreement. (29a-32a.)

By some mystical process which the

Court of Appeals never bothers’ to

explain, unlike every other part of the

bargaining agreement, which can _ be

changed by negotiation, the seniority

clause is thereby rendered untouchable

in perpetuity because of ALPA's

unilateral "policy" declaration that

"final and binding" means it is forever

released from its bargaining duties to

the Air Wisconsin pilots on this one

subject that has so devastating an

effect upon their future interests

throughout the entire work-life

expectancies of so many of then.

(Fenske Aff., A-360.)

There never has been a decision that

exalts an arbitration award to such a

sacred status that so transcends the

union constitution, the collective

bargaining agreement even the

collective bargaining duty that is

central to the statutory scheme of the

Railway Labor Act. (45 U.S.C. § 152

First.)

Further, the Monday morning

quarterbacking attitude of the Court of

Appeals, such a weird result should have

been foreseen by the Air Wisconsin

pilots, and they should have sued to

upset the arbitration on some such

extreme grounds as "fraud" (909 F.2d at

216), rather than relying on the common

sense assumption that the end product of

the arbitration -- a clause in the new

bargaining agreement for the merged

airline -- would be treated no

differently than the other clauses

therein and, like them, would be subject

to negotiation for future application

when the opportunity rolled around.

The Seventh Circuit's statement that

"There is no way in which ALPA's

interpretation of the provisions

bearing on the merger of seniority lists

could be thought unreasonable" (909 F.2d

at 218) is out of touch with the

realities and practice of collective

bargaining insofar as it involves

"interest" arbitrations, as shown in the

affidavit of Thomas kK. Bly. (A-445-

449.)

In the Steelworkers Trilogy, this

Court held that “rights” arbitrations

play an important part in the collective

bargaining process. United Steelworkers

v. American Mfg. Co., 363 U.S. 564

(1960); United Steelworkers v. Warrior &

Gulf Navigation Co., 363 U.S. 574

(1960); United Steelworkers vy.

593 (1960). See also Textile Workers v.

Lincoln Mills, 353 U.S. 448 (1957).

However, this Court has never held

that an arbitration award --

particularly one resulting from a non-

statutory arbitration as here involved

-- would be permitted to supersede a

collective bargaining agent's

statutorily imposed bargaining duties

on a permanent basis.

Such a result would be an anomaly

with regard to an “interest"

arbitration award that becomes a part of

the bargaining agreement itself.

The distinction between interest and

rights arbitrations is described in

Elkouri & Elkouri, How Arbitration

Works, Chapter 3, in which it is pointed

out that interest arbitrations are

"quasi-legislative" in nature because

they are not grounded in the

interpretation of a bargained-for

agreement. 2

2 Elkouri & Elkouri, How

Arbitration Works (1985-87 Supplement)

(Washington, D.C.: BNA, 1988), p. 23.

The result of the decision below is

to permit the circumvention of the

performance of bargaining duties on a

permanent basis based’ upon a "policy"

unilaterally adopted by the _ union's

hierarchy. Such a result is of grave

importance to the proper performance of

the duty of collective bargaining as

mandated by the Railway Labor Act, see

Virginian Railway Co. v. System

Federation No. 40, 330 U.S. 315 (1937),

and well worthy of this Court's

attention.

III. THE SEVENTH CIRCUIT'S

"INTENTIONAL VIOLATION" STANDARD

CONFLICTS WITH THE LESS

RESTRICTIVE STANDARD FOLLOWED BY

ALL OTHER CIRCUITS IN DFR CASES

The Seventh Circuit has long held

that the duty of fair representation is

enforceable only in “intentional

misconduct" cases, a limitation that has

37 :

given the Seventh Circuit itself

difficulty.

As noted in a recent Seventh Circuit

decision on the subject, Thomas v.

United Parcel Service, Inc., 890 F.2d

909, 922, fn. 5 (7th Cir. 1989):

"Ours is the only circuit to

require proof of intentional

misconduct."

The footnote continues with citations

to decisions in the Ninth, Sixth,

Eleventh, Fourth, Third, Fifth, Second,

Eighth, D.C., Tenth, and First Circuits,

all approving a standard less

restrictive than the subjective

"intentional misconduct" standard used

in this case. (909 F.2d at 216.)

The majority opinion in Thomas

obviously regarded the Seventh

Circuit's rule in DFR cases to be out of

step with Vaca v. Sipes, 386 U.S. ' 171

(1967), and decisions in other circuits,

but felt constrained to follow the

restrictive decisional law as it has

evolved in the Seventh Circuit.

The application of the Seventh

Circuit's intentional misconduct

standard in the context of a summary

judgment motion proved to be lethal to

plaintiffs' case. It is submitted that

the decision of the Seventh Circuit

conflicts with the cases decided in

other circuits both on the appropriate

DFR standard and on the use of summary

judgment in such cases.

Performance of the Duty of Fair

Representation is of particular

importance with regard to the issue of

seniority.

Seniority is an issue that is

uniquely within the province of the

union.

Thus if the union abdicates its

function, rather than performing its

mandatory statutory duty to bargain,

the affected employees are bereft of one

of the principal responsibilities for

which they are compulsorily required to

pay union dues to a bargaining “agent”

for representing them.

In such circumstance, ”%... the

individual employee stands alone

against a- single entity: the joint

union/employer." Breininger vy. Sheet

Metal Workers' Int') Ass'n Local Union

No, 6, ___ U.S. ___, 110 S.Ct. 424, 437

(1989).

The premise of the non-performance of

such a mandatory duty inevitably will

create enormous dissatisfaction and

unrest in the workplace, a consequence

that is particularly serious when it

invo’.ves an airline in view of safety

considerations. (45 U.S.C. § 152

First.)

The President of A:r Wisconsin stated

at his deposition that he had told the

pilots in substance that he wanted them

to come up with some revisions in the

arbitrated list in the bargaining

agreement “before all-out war breaks out

2." (A-427-428.)

The desire of the Air Wisconsin

pilots for negotiations on the subject

of seniority also finds’ substantial

support in the relevant documents

promulgated by ALPA itself. These

include the Constitution and By-Laws as

well as the Merger Policies and Related

Employee Protective Provisions issued by

ALPA in 1985.

The Constitution and By-Laws lists as

one of the union's’ fundamental

objectives the establishment of "...

uniform principles of seniority for

members of the Association ...." (Art.

I, Section 6(F); A-41.)

The Constitution and By-Laws specify

that it is a responsibility of the union

"to seek the adoption and perpetuation

thereof." (Art. I § 6(F); A-41.)

The Merger icies elated

Employee Protective Provisions document

states that seniority of pilots is to be

based upon "the length of service of a

pilot with the company." (Section

45.02.01(B); A-113.)

It is further provided that the "Home

Office" of ALPA "... is instructed to

use every means at its command in

standardizing for prospective

application" the seniority clause of

"all pilot working agreements."

(Section 45.02.01(C); A-113.)

{

Thus rather than supporting the

position of ALPA that, in view of the

arbitration decision, it will never do

anything further on the _ subject of

seniority in representing the Air

Wisconsin pilots, the language of ALPA's

own documents would lead a “reasonable

person" to conclude that, based upon the

clear discrepancy between the arbitrated

list and the “length of service"

principle, more remains to be done in

the forum of collective bargaining.

Nor is the duty thus imposed upon

ALPA inconsistent with the arbitrated

list that became a part of the first

merged working agreement.

The arbitrated list, as pointed out

above, had no life of its own beyond the

term of the collective bargaining

agreement. The duty imposed by the

ALPA Merger Policies and Related

Employee Protective Provisions does not

look backward but instead quite

specifically makes reference to

negotiating forward "for prospective

application" a "length-of-service"

seniority clause in "all pilot working

agreements." (A-113; emphasis added.)

The supposition, implicit in the

decisions below, that an arbitration

award providing a short-term solution to

flight crew assignment' problems

inv>»lving two different aircraft fleets

of a merged airline may be used

permanently to block collective

bargaining concerning one of the most

important terms in future contracts is

contrary to the principle and purpose

of collective bargaining both as it is

practiced and as it is enshrined in

national labor policy. See Holzhauer,

The Contractual Duty of Comp2tent

Representation, 63 Chi-Kent-L. Rev. 255

(1987).

The silencing of such a_ debate

regarding competing interpretations of

constitutional and related provisions by

the removal of and imposition of a

trusteeship on subordinate officials

elected by the pilots whose interests

are directly involved is jnherentiy

destructive of the very

representational form of union

government that the Seventh Circuit's

opinion purports to espouse. (909 F.2d

at 219.)

ALPA's action discriminated against

Air Wisconsin pilots by depriving them

of a meaningful right to speak and vote,

contrary to decisions in other circuits.

Pignotti v. Loca] 3, Sheet Metal

Workers, 343 F. Supp. 236, 242-43 (D.

Neb. 1972), aff'd, 477 F.2d 825 (8th

Cir.), cert. denied, 414 U.S. 1067

(1973); Sabolsky v. Budzanski, 457 F.2d

1245 (3d Cir.), cert. denied, 409 U.S.

853 (1972).

Directly contrary to the Seventh

Circuit's ruling below is a D.C. Circuit

decision, Lamb v. Miller, 660 F.2d 792,

794 (D.D.C. 1984).

Lamb v. Miller holds that removal of

a local union official for his

continuing opposition to what are stated

to be the policies of the international

is violative of the Landrum-Griffin Act.

Lamb v. Miller also holds that

summary judgment was improperly granted

because of the existence of dispute fact

issues on the subject.

The decision below therefore is

inconsistent with Lamb v. Miller in two

important respects.

Especially when good faith is in

question in such cases, as it is here,

a court must refrain from granting

summary judgment. Hotel & Restaurant

Employees & Bartenders v. Rollison, 615

F.2d 788, 793 (9th Cir. 1980).

The Seventh Circuit's comments

regarding the functions and role of the

Air Wisconsin Master Executive Council,

a subordinate unit of ALPA, itself gives

rise to the interpretation of ambiguous

provisions in the Constitution that

should have precluded summary judgment.

The Seventh Circuit's opinion fails

to consider the plain statement in the

Constitution that, subject to certain

exceptions, the Master Executive Council

of an airline “is empowerzd to make the

final decision on any problem or

problems of the members in that airline,

except as provided elsewhere in the

Constitution and By-Laws." (Art. IV, §

2C; A-56.)

The Constitution also provides that

"The decisions of the Master Executive

Council shall be considered as_ the

decisions of the members of the airline

and shall be acted upon accordingly."

(Art. IV, § 2C; A-56.)

The Seventh Circuit's denial that the

Air Wisconsin pilots had any right to be

heard on the subject of seniority

through the voting of a secret ballot,

as their elected representatives had

requested, is similarly inconsistent

not only with the Constitution and By-

Laws of ALPA, but also with the theory

of representative government which the

Seventh Circuit's opinion endorses.

ALPA's Constitution and By-Laws

create a membership right to vote upon

"Any contract, letter of agreement, or

48-

letter of understanding that, in the

opinion of 4 MEC, substantially

affects the pay, working conditions,

career security of pilot members ...."

(Art. XVIII § 2B; A-78; emphasis

added.)

The Seventh Circuit's statement about

representative democracy in the next-to-

last paragraph of its opinion totally

confounds the true nature of

representative democracy, under which

the powers flow up from those who are

represented, and from whom all powers

are ultimately derived, rather than, as

in the case of a dictatorship, from the

top down.

Trustee Hale frankly admitted that he

had blocked the right of the MEC to use

the roll-call voting procedure

specifically provided by the

Constitution and By-Laws for the choice

of the members of the all-important

Negotiating Committee. (A-321b.)

Trustee Hale himself, of course, was not

elected, but appointed. Thus the action

of the various non-elected trustees in

appointing members of the negotiating

committee meant that the process did not

constitute the working of true

representative democracy, as stated by

the Seventh Circuit's opinion (909 F.2d

at 219), but its obverse.

IV. THE USE OF DRASTICALLY DIFFERENT

RULES OF INTERPRETATION OF THE

CONTRACTUAL RIGHTS OF UNION

MEMBERS, AS OPPOSED TO OTHER

PARTIES LITIGANT, WARRANTS REVIEW

This Court has held that union

members may have enforceable contract

rights against the union itself arising

from the union constitution and related

documents. Plumbers & Pipefitters vy.

Loca] 334, Plumbers & Pipefitters, 452

U.S. 615, 619 (1961).

However, in Pipefitters, the Court

specifically declined to decide what

standard should be used by courts to

interpret the contractual rights of

members arising from a union

constitution or by-laws. (452 U.S. at

627.)

Since Pipefitters, some courts--

including the Seventh Circuit -- have

failed to realize that claims by union

members alleging breach of a_ union

constitution or by-laws are essentially

breach of contract actions and have

mechanically applied pre-Pipefitters

criteria to post-Pipefitters suits.

Rather than applying the rules of

contract interpretation that courts

would apply to any other breach of

contract action, these courts, including

the decision below (909 F.2d at 218),

have relied upon pre-Pipefitters cases

and their progeny for the proposition

that courts should defer to the

interpretation of union constitutions by

the group in power in the union, no

matter how self-serving such an

interpretation may be.

Such an approach effectively negates

the jurisdiction of the courts to

provide a remedy for breach of contract

claims.

See Perry 7? . In ationa

Longshoremen's Assn., 638 F. Supp. 1441,

1446 (S.D.N.Y. 1986).

The Seventh Circuit drastically

departed from the standard rules of

interpretation applied to contractual

rights of parties litigant generally in

its evaluation of the contractual claims

of the plaintiffs below in two respects.

* First, the Seventh Circuit applied

the rule that such contractual claims—

of union members should be denied unless

the interpretation given by the

hierarchy to the constitution, by-laws,

and other promulgations by the union is

"unreasonable" and “perhaps even

‘patently unreasonable.'" (909 F.2d at

218.)

Such a rule of interpretation is

diametrically opposed to the usual rule

of contract interpretation under which

the meaning of the words used is

resolved against the party from which

the document emanated, and in favor of

the other party, or the promisee. 4

Williston on Contracts, § 621 (3d ed.

1961).

As stated in the Restatement of

Contracts 2d § 206:

Interpretation Against the

Draftsman

In choosing among the reasonable

meanings of a promise or agreement

or a term thereof, that meaning is

generally preferred which operates

against the party who supplies the

words or from whom ae writing

otherwise proceeds.

The Seventh Circuit's decision turns

the normal rule used in interpreting

contractual rights topsy-turvy.

Under the Seventh Circuit's decision,

the language is interpreted in favor of

the officialdom that wrote the document

on which the claims are based, and

against those to whom the promises were

made.

Pragmatically, the language used

should have been regarded as comparable

to that of an insurance policy in terms

of the relationship between ,the source

of the language, the ALPA headquarters

that was responsible for preparing it,

and the individual Air Wisconsin pilots

to whom the language was subsequently

issued in the form of assurances that

they relied upon in paying their dues.

That being the case, 3% - ae

fundamental that the meaning used is to

be construed most strongly against the

party using them, instead of in its

favor, as in the Seventh Circuit's

decision. See 4 Williston on Contracts

§ 621, pp. 764-5 (3d ed. 1961).

The Seventh Circuit's decision also

violates the rule that related

provisions appearing together in a

document are to be interpreted so as to

give effect to both, so that neither

clause will be rendered a nullity. 4

Williston on Contracts (3d ed. 1961) §

619, p. 731.

So construed, the "final and binding"

provision relating to arbitration

awards is interpreted, as it was here in

the practice followed by the parties, in

making it a part of the current

collective bargaining agreement. Thus

there is no necessary conflict between

that clause and the prospective duty to

bargain regarding seniority in the

negotiation of future agreements as the

"Home Office" is directed to do by a

separate but related provision in the

same document. /A-113.)

In the second place, the

interpretation of ambiguous language has

been repeatedly held to be a fact issue

precluding summary judgment in other

circuits, including the Second.

As stated in the recent case of

Record Club of America v. United

Artists Records, 890 F.2d 1264, 1270-

1271 (2d Cir. 1989):

"Summary judgment as to the

meaning of a contract term may not

be granted when the term's meaning

is not clear or is’ reasonably

susceptible to more than one

interpretation. 'Where contract

language is ambiguous, the

differing interpretations of the

contract present a triable issue

of fact. Summary judgment is

therefore inappropriate.'

[Citations omitted.]"

The Seventh Circuit's opinion

virtually concedes that the language is

ambiguous. It emasculates the "goal"

that the ALPA constitution sets forth

regarding seniority by calling it

"preamble-like." (909 F.2d at 217.)

Then, turning to the policy statement

issued by ALPA dealing specifically with

mergers, and related pilot protective

provisions, it acknowledges that it

specifically provides that "seniority as

a pilot shall be based upon the length

of service as a pilot with the Company,"

but disregards this as also being

“preambular" (909 F.2d at 218) and also

ignores the direction given to the Home’

Office for prospective application in

future agreements referred to above.

Whether the provisions to be

interpreted are "preambular" as opposed

to enforceable is a question of fact

that should have precluded summary

judgment.

Further, when direct evidence of

personal malice is presented, as here,

in the affidavits claiming that the

trusteeship was imposed in retaliation

for the attempt by Fenske, Jakawich and

others to set upon an independent union

(2la-23a) the assumption that the result

was the outcome of a "reasonable

interpretation" as opposed to being the

outgrowth of other factors is a fact

issue not determinable on summary

judgment.

Curiously, the cases relied on by

the Seventh Circuit to support its claim

that deference should be given to the

union's interpretation of contractual

rights emanating from its own documents

(909 F.2d at 218) -- Local Union No. 657

vy. Sidel], 552 F.2d 1250, 1257 (7th Cir.

1977), Millwright Local No, 1079 v,

United Brotherhood of Carpenters &

Joiners, 878 F.2d 960, 962 (6th Cir.

1989), Loretangeli vy. Critelli, 853 F.2d

186, 192 (3d Cir. 1988), and Newell v.

international Brotherhood cf Electrical

Workers, 789 F.2d 1186, 1189 (Sth Cir.

1986) -- all indicate that, contrary to

the result below, summary judgment may

not be granted when there are material

issues fact in dispute with regard to

such interpretation, as are here

presented.

CONCLUSION

For the foregoing reasons, the

petition for a writ of certiorari should

be granted.

November 26, 1990

Respectfully submitted,

WISEHART & KOCH

SR, a TY ae

Arthur M. Wisehart

(Counsel of Record)

25 West 43rd Street, Suite 1114

New York, New York 10036

(212) 730-0044

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