# Petition for Writ of Certiorari — Safir v. Blackwell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0796%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 414 U.S. 975 ## Text IN THE Supreme Court of the Anited Sot arvay's: 202% JR.6 MAR 21 1974 OCTOBER TERM, 1973. No. 73-1416 TRANS WORLD AIRLINES, INC. AND AMERICAN AIRLINES, INC.. Petitioners. VS. ANNE B. ZIPES, PATRICIA A. SANTINI, PAMELA J. DAILING, DARLENE PRESTON, BONNIE PULSKAMP, SUSAN PRASCIUNAS, MARSHA JIMERSON, PHYLLIS STILL, ELISABETH KORENGOLD. CHERYL ROSSI, AND AIR LINE STEWARDS anD STEWARDESSES ASSOCIATION, LOCAL 550, TWU, AFL-CIO, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT JaMES A. VELDE One First National Plaza Chicago, Illinois 60670 Attorney for Petitioners Of Counsel JAMES H. DOUGLAS LAURENCE A. CARTON ELiLiot M. SCHNITZER GARDNER, CARTON, DOUGLAS, CHILGREN & WauD Gunthorp-Warren Printing Company, Chicago e@ 346-1717 we re > oe satiate het ial es ee TABLE OF CONTENTS PAGE I III Sra cra ear uly Grp ahwce: Sik aren nose ee 2 Statutory Provisions Involved ................2e0005s 2 Or oc cs vav dk hee ew ek a vee es 3 Rensons Sor Granting Wet ... 2.5 2c ccc ce eeees -oe I. The Decision Below Failed to Give Effect to a Union's Representative Authority to Make a Settle- ment in Litigation Under Title VII and Rule 23..... 9 A. Union Had Authority Under Federal Law to Represent Conflicting Seniority Interests in Negotiating Settlement. and Airlines Were Required to Negotiate with Union .......... 10 B. Congressional Intention Misinterpreted in Denial pT I, ks 8 oa oA ocean cs 16 (1) Use of Wrong Criterion of Interpretation.. 16 (2) Congressicnal Intention in Both Railway Labor Act and Title VII Can Be Given Effect Without Destroying Union Author- ity to Make a Court Approved Settlement 17 C. Rule 23(a)(4) Does Not Forbid Union Repre- sentation of Conflicting Interests ........... 24 D. Aijrline Reliance on Union Authority ........ 26 Il. The Decision Misinterprets Rule 23 in Holding Class Actions Should Have Been Brought Under Subdivi- Se Waka pda s ae eee re nase has 29 A. Clear Language of Rule 23 Shows Class Actions Were Under Subdivision (b)(2) of Rule 23 .. 30 B. Authorities Are All Contrary to Court of Appesis’ Interpretation .........0..00550- 33 C. Serious Effect on Decided Cases ............ 36 IN stort Sale ee a ee ee 37 Appendix: A. Court of Appeals Opinion ................ Al B. Excerpts from Railway Labor Act .......... Al5 C. Excerpts from Title VII-Equal Employment Opportunity, Civil Rights Act of 1964 ...... Al7 D. Rule 23. Federal Rules of Civil Procedure .... A22 CASES Alexander v. Gardner-Denver Co., . _ o eee A, ae es Os NEE 4S ene c senha eee b wos se 22-3 ALSSA v. American Airlines, 455 F. 2d 101 (C. A. 7, SE I ke kia es kei keel ehennewn ines i es 5 Arkansas Education Assn. v. Board of Education, 446 Fe ee es a Es Cras ca eee re eke aes 33 Brandt v. Owens-Illinois, Inc., F. Supp. , CON Fed. Sec. L. Rep. © 94.355 (S. D. N. Y. 1974)...... 33 Cleveland Board of Education v. LaFleur... U.S. ..........., ea. Oe ee re A CPD oro vis cae ew eeness 20n Conley v. Gibson, 355 U. S. 41 (1957) .............. 15 Cox v. United States Gypsum Co.. 284 F. Supp. 74 (N. D. ee re rs Pret: 22 Elgin. Joliet & Eastern Railway Co. v. Burley, 325 U. S. 711 (1945) reh. 327 U.S. 661 (1946) ........ 12, 15, 26 Federal Maritime Commission v. Seatrain Lines, 411 U. ». Fay Pe te LEED cin ek te ccuens Anew s 17 Ford Motor Co. v. Huffman, 345 U. S. 330 (1953) ..... 13 Gerstle v. Continental Airlines, 50 F. R. D. 213 (D. Colo. ac San te ee eae ew eae cane ea baw ee eee Hansberry v. Lee, 311 U.S. 32 (1940) .............. 25 Humphrey v. Moore, 375 U. S. 335 (1964) .......... 13, 24 NO ET Seer IE ENING Pas ce aes itl International Chemical Workers Union v. Planters Mfg. Co., 259 F. Supp. 365 (N. D. Miss. 1966) .......... 27n International Union v. Hoosier Cardinal Corp., 383 U. S. ee er re ee Pye rer ee 27n Jenkins v. United Gas Corp.. 400 F. 2d 28 (C. A. 5, 1968) 33 Local 179 v. Federal Paper Stock Co., 461 F. 2d 849 Si. SUPE oe hae oe bak ete a ee ain oes 27n Local 186 v. Minnesota Mining & Mfg. Co., 304 F. Supp. eo ee 3 eee er ee rer eer 27n Masterson v. Pergament, 203 F. 2d 315 (C. A. 6, 1953)... 25 Mullane v. Central Hanover Bank & Trust Co.. 339 U. S. SE ors oo vos ea a ER Ee eee Rea 25 Mungin v. Fiorida East Coast Railway Co.. 318 F. Supp. ee a PO xa ss cera nae aes 33 National Airlines v. International Assoc. of Machinists, 478 ee es a FD eae a EEOC, and the Title VII class actions followed. The present litigation involves, not the effect of labor law remedies outside Title VII as in the Alexander case, but the capacity of a federal statutory representative to exercise his function in the prosecution of District Court actions authorized by § 706(e) and (g) of Title VII. Another contrast with the Alexander case is that the present case involves a class action on behalf of almost 600 terminated stewardesses brought under Rule 23 of the Federal Rules of Civil Procedure. It seems certain that the opinion in the Alex- ander case, in emphasizing the individuality of an employee’s rights under Title VII, was not intended to forbid the prosecution of remedies in class actions under Rule 23. The Courts of Appeals have noted that a class action is a particularly appro- priate procedure in prosecuting remedies under Title VII.* The opinion of the Court of Appeals in the present action permits the class action to continue and even indicates that the affirma- tive remedies of reinstatement, seniority, and back pay could be disposed of by a settlement (p. Al4). If the opinion in the Alexander case does raise a question about the propriety of a class action or the settlement of class action claims under Rule 23(e). it is particularly important that this Court review the present cases in order to clarify the law in a very important area. A footnote in the Alexander opinion** criticizes union power in stating that arbitration is a less appropriate forum for Title VII issues than the Federal Courts. These remarks do not apply to class actions in the District Court under Rule 23 where objecting employees are protected by the necessity of court ap- proval of the settlement. Further, it is significant that Congress in Title VII, while expressly making a union liable for unlaw- ful discrimination, did not expressly forbid it in Title VII actions * “* Oatis Vv. ‘Crown Zellerbach Corp., 398 F. 2d 496, 498 (C. A. 5, 1968); Bowe v. Colgate-Palmolive Co., 416 F. 2d 711, 719 (C. A. 7, 1969). ** 42 U.S. L. W. 4220 n. 19. Dt Sit RA AREAS PEALE SO SS ART CREE. PI PIOELL AN Teale - . No tet em re 24 to exercise its statutory powers and duties as the representative of the majority of the craft of employees. C. Rule 23(a)(4) Does Not Forbid Union Representation of Conflicting Interests The Court of Appeals’ opinion overlooked an important distinction in the language of Rule 23(a)(4). The court held that the union’s representation of conflicting seniority interests violated the requirement of subdivision (a)(4) that “the representative parties will effectively and adequately protect the interests of the class’ (quoted p. A22. emphasis added). This provision does not specify a conflict of interests as a disquali- fication. A representative may act for a class with conflicting interests if he will adequately protect class interests. Congress has made the union a special statutory protector of the conflicting interests of union members with a substantive duty of fair representation of such interests, as held by Steele, Humphrey and other cases discussed above.* This special union representa- tion satisfies the criterion of subdivision (a) (4). contrary to the Court of Appeals’ ruling, unless there is proof of ineffective or inadequate class protection; and here, as explained above,** the District Court adjudicated the union’s effectiveness and adequacy as a representative. This interpretation of Rule 23 is supported by additional con- siderations. When the Court of Appeals stated (p. All) that the union’s adequacy as a class suit representative must be “tested and judged in the ordinary way”, the court held that subdivision (a)(4) had overridden the federal substantive law that created the union’s regular role. Under the Rules Enabling Act [48 Stat. 1064 (1934); 28 U. S. C. 2072] a procedural provision could not validly modify substantive federal law. 25 should be interpreted to sustain its validity. Further, in resorting to a class action under Rule 23, the union submitted itself to judicial supervision of its performance as a representative, includ- ing the scrutiny of any settlement by reason of the requirement of court approval in subdivision (e). This, combined with the union’s liability for breach of its substantive duty of fair repre- sentation, provides double assurance that the union “will effec- tively and adequately protect the interests of the class”. The Court of Appeals’ opinion (p. A8) raises a possible viola- tion of procedural due process, citing Hansberry v. Lee, 31} U. S. 32. 45 (1940), for a statement “that a judgment in a class action can only bind absent class members where the representative's interests coincide with those of the balance of the class”. The basic due process protections of a notice* and a hearing were accorded the objectors in the present cases (I Supp. App. 55). Their attorneys (other than the union's) ap- peared at and participated fully in the hearings held in March 1972 (II Jd. 141). In Masterson v. Pergament, 203 F. 2d 315, 330 (C. A. 6, 1953), cert. den. 346 U. S. 832, rejecting con- tentions that a settlement under former Rule 23(c) was invalid because of inadequate notice and the dual role of lawyers repre- senting class members. the Court of Appeals explained that the District Judge. in granting his approval, was “a third party to the compromise” and that the objection of class members to inadequate representation at the hearing could not be sustained. Thus, in the present case, if a due process question is raised by the statutory agent's representation of conflicting employee interests. the employees are protected by the two safeguards of the union’s duty of fair representation and judicial review of the representation. * On the first appeal the Court of Appeals’ opinion, after review- ing the provisions of the July 1971 notice, later duplicated in the February 1972 notice, concluded (455 F. 2d at 108) that it “suf- ficiently conveyed the required information,” citing Mullane v. Cen- tral Hanover Bank & Trust Co., 339 U. S. 306 (1950). CONNER RENN RL RRC SIT RON RE Lk 26 D. Airline Reliance on Union Authority The airlines negotiated with the union and made a binding settlement in reliance on representations that the union had authority to act. The representations were made by the air- lines’ opponents in the litigation, the union and the stewardesses for whom it acted. The Court of Appeals, after stating that in some cases class members could so clearly acquiesce in their union’s efforts that “they would be estopped” from excluding themselves from a settlement, concluded, “Nothing revealed in this record puts these cases in that posture”.* This conclusion is based on a faulty analysis of the conduct by the union and its members in dealing with the carriers. The carriers’ reliance on representations of union settlement authority has been held to be an important factor in consider- ing union authority that might otherwise be in doubt. In the second Burley opinion, the majority said that the employee could not “stand by with knowledge or notice of what is going on with reference to his claim”, “allow matters to be thrashed out to a conclusion”, “and then come in for the first time to assert his individual rights” (327 U. S. 666-7). Twenty-five years later the Second Circuit said in the Pyzynski case (421 F. 2d at 859-860), “The Burley decisions may be said to have held that a carrier may rely on the authority of a union to negotiate a conclusive settlement . . . if it can be shown either that the union acted upon a basis of actual authority, whether individually given or to be gathered from the union constitution or bylaws or from custom and usage or that the employee had notice or knowledge of the actions taken by the union in his behalf and took no steps to negate the union’s authority”. In the National Airlines case, involving a settlement of remedies for the illegal discharge of 1000 employees, the Fifth Circuit held that 28 objecting employees, “having allowed the I. A. M. *P. Al3. TRL SR TT ms 0 , eS GRATE ERE, OE 27 [the union] to negotiate with the result that the company bar- gained under the assumption that all claimants including these twenty-eight would be bound by the settlement, may not now declare that this agreement is null and void with respect to them” (478 F. 2d at 1066). In the present controversy, the stewardesses and the union repeatedly used the processes and practices of federal labor law to pursue their Title VII remedies. In early 1970, when several terminated stewardesses took action against the pregnancy practice, they did so by filing grievances with the union, their statutory representative under the RLA (II Supp. App. p. 151). The union as their representative negotiated the dispute, unsuc- cessfully, with the airline employers. When the union as the stewardesses’ statutory representative filed charges with the EEOC (I /d. 115), the EEOC authorized the union to file actions under Title VII (I 7d. 135). In the District Court complaints filed in August 1970 the union did not sue as a person discriminated against by the pregnancy practice but as “a representative of employees as defined in the Railway Labor Act, 45 U. S. C. 151” (I Id. 2, 7). The union had broad authority to sue on behalf of employees on several grounds.* The settlement set aside by the Court of Appeals was negotiated * A union has been held capable of bringing an action under § 706(e) of Title VII as a “person aggrieved”, and the EEOC has authorized such suits by unions as it did in these cases. /nternational Chemical Workers Union v. Planters Mfg. Co., 259 F. Supp. 365. 366 (N. D. Miss. 1966); Local 186 v. Minnesota Mining & Mfg. Co., 304 F. Supp. 1284, 1293 (N. D. Ind. 1969); Local 179 v. Federal Paper Stock Co., 461 F. 2d 849, 851 (C. A. 8, 1972): Rosen v. Public Service Electric & Gas Co., 409 F. 2d 775, 780 (C. A. 3, 1969) and 477 F. 2d 90, 94 (C. A. 3, 1973). A union also has broad powers to sue “in behalf of” employees under § 301(b) of the Labor Management Relations Act (29 U. S. C. 185(b)) which, unlike other provisions of the statute, does not exclude persons covered by the Railway Labor Act. A union also has capacity to sue without joining the employees it represents under several clauses of Rules 17(a) and (b) of the Federal Rules of Civil Procedure. See International Union v. Hoosier Cardinal Corp., 383 U. S. 696, 700 (1966); 6 Wright and Miller, Federal Practice and Procedure, § 1552, pp. 689-91 (1971). ROA RETR GO ARAN re ota A2l would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406 of title 28 of the United States Code, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought. (g) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employ- ment practice charged in the complaini, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization. as the case may be, responsible {261] for the unlawful employment practice). Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable. No order of the court shall require the admission or reinstatement of an individual as a member of a union or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled or was refused employment or advancement or was suspended or dis- charged for any reason other than discrimination on account of race, color, religion. sex or national origin or in violation of section 704(a). PELE SIRE LBA II SE A ST A22 APPENDIX D RULE 23, FEDERAL RULES OF CIVIL PROCEDURE CLASS ACTIONS. (a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the repre- sentative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. (b) Class Actions Maintainable. An action may be main- tained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (1) the prosecution of separate actions by or against indi- vidual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incom- patible standards of conduct for the party opposing the class, or (B) adjudications with respeci to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their inter- ests; or (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or A23 (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. (c) Determination by Order Whether Class Action to be Maintained; Notice; Judgment; Actions Conducted Partially as Class Actions. (1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits. (2) In any class action maintained under subdivision (b) (3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude him from the class if he so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any mem- ber who does not request exclusion may, if he desires, enter an appearance through his counsel. (3) The judgment in an action maintained as a class action under subdivision (b)(1) or (b)(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action SE SUE EI NSERC Pris Hin TE AT RS ASIN Nk x 0 Rs Ie 6 Se — A24 maintained as a class action under subdivision (b) (3), whether or not favorable to the class, shall include and specify or de- scribe those to whom the notice provided in subdivision (c) (2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class. (4) When appropriate (A) an action may be brought or maintained as a class action with respect to particular issues, or (B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly. (d) Orders in Conduct of Actions. In the conduct of actions to which this rule applies, the court may make appropriate orders: (1) determining the course of proceedings or prescrib- ing measures to prevent undue repetition or complication in the presentation of evidence or argument; (2) requiring, for the protection of the members of the class or otherwise for the fair _conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action; (3) imposing conditions on the representative parties or on intervenors; (4) requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly; (5) dealing with similar procedural matters. The orders may be combined with an order under Rule 16. and may be altered or amended as may be desirable from time to time. (e) Dismissal or Compromise. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. As amended Feb. 28, 1966, eff. July 1, 1966. e --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0796%3A1. Public record. Not legal advice.