Opposition Brief — Brooks v. United Airlines

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OCT 20 1995 reas)

No. 95-282

In the Supreme fs LER

OF THE

United States

OCTOBER TERM, 1995

ROGER O. BROOKS, et al.,

Petitioners,

VS.

UNITED AIRLINES, INC.,

Respondent.

On Petition For Writ of Certiorari

To The Colorado Court of Appeals

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

ROBERT A. SIEGEL

Counsel of Record

CHRIS A. HOLLINGER

O’MELVENY & MYERS

400 South Hope Street

Los Angeles, California 90071

(213) 669-6005

DALE R. HARRIS

DAVIS, GRAHAM & Stusss, L.L.C.

370 17th Street

Denver, Colorado 80202

(303) 892-9400

Bowne of Los Angeles, Inc., Law Printers (213) 627-2200

TBEST AVALABLE COP

Vv ~ \

PARTIES TO THE PROCEEDING

The only appellee before the Colorado Court of

Appeals was Defendant-Respondent United Airlines, Inc.

With respect to the three individuals identified as

respondents in the Petition for Writ of Certiorari filed in

this Court (i.¢., Richard J. Ferris, James J. Hartigan and

David L. Pringle), the Colorado Court of Appeals entered

an Order on June 1, 1993 stating that those three

individuals "are not parties to this appeal." The Petitioners

did not seek review of that Order, which is reprinted in

the Appendix hereto at page A-1.

The corporate parent of Defendant-Respondent

United Airlines, Inc. is UAL Corporation. There are the

following subsidiaries: Four Star Insurance Company, Ltd.;

Mileage Plus, Inc.; UAL Leasing Corporation; Air Wis

Services, Inc.; Air Wisconsin, Inc.; United Airlines Credit

Corporation; United Aviation Fuels Corporation; Kion De

Mexico, S.A. de C.V.; United Cogen. Inc.; United

Vacations, Inc.; Covia Corporation; United Worldwide

Corporation; and Cypher Corporation.

TABLE OF CONTENTS

Page

PARTIES TO THE PROCEEDING ............-. i

TABLE OF AUTHORITIES ............--+-+-- iii

OPINIONS AND ORDERS IN THE COURTS

EE. cc ccedovrs cetaseeeeareens 2

FEES SS SP eee ee re 2

SUMMARY OF ARGUMENT ............---: 2

DE CS icc eeiaetbaa reese dais. 5

THE DECISION OF THE COLORADO

COURT OF APPEALS IS ENTIRELY

CONSISTENT WITH THIS COURT'S

DECISION IN HAWAIIAN AIRLINES,

INC. V. NORRIS AND WITH THIS

COURT’S OTHER PREEMPTION

QE cack ccc ka die eeese es? « 5

NEITHER UNITED’S STATUS AS A NON-

SIGNATORY TO THE COLLECTIVE

BARGAINING AGREEMENT NOR THE

PLAINTIFFS’ ALLEGED LACK OF AN

ALTERNATIVE REMEDY JUSTIFIES A

DEPARTURE FROM THIS COURT'S

PREEMPTION PRECEDENTS .......... 11

THERE ARE ADDITIONAL REASONS

FOR DENYING THE PETITION FOR

WRIT OF CERTIORARI ..............- 18

COE kg 6c i ave veins cienensns 20

Cases

iii

TABLE OF AUTHORITIES

471 US. 202 (1985) .......-00eeeeeees 6, 17

2 F.3d 590 oo oe i) | aS ee 7

— ~ U.S. 320 om) EG BD 6, 15

370 TOES (ies) BTS in tod dn és 12, 16

eenaaen (2d Cir. 1990) .........-- 13, 14

08 944 F.2d 1422

NE cist vee. gc ac ees 13

971 F.2d 463 (10th Cir. 1992),

cert. denied, 113 S. Ct. 2439

70 ee 7

32 F.3d 212 (6th Cir. 1994) .............. 15

872 F.2d 766 (6th Cir. 1989)........... 13, 14

60 F.3d 1416 (9th Cir. 1995)............-. 9

60 F.3d 83 (2d Cir. 1995) .........e ee ee. 14

Harris v. Hea

654 N.E.2d 975 (N.Y. Ct. App. 1995) ....... 10

114 S. Ct. 2239 (1994) ............ 2, passim

10 F.3d 1142 (Sth Cir.),

vacated, 114 S. Ce. Z732 (1994) 2... cccecss 7

ee | Airlines. |

SU EE 0 co Pods ices < 15

International Bhd. of Elec, Workers v.

Hechler, 481 U.S. 851 (1987) ............. 6

I ‘onal Union. United Mine Worl

| y. Covenant Coal Corp.,

977 F.2d 895 (4th Cir. 1992)........... 13-15

486 U.S. 399 (1988) .............. 2, passim

Local 174, Teamsters v. Lucas Flour Co.,

ae 16, 17

960 F.2d 263 (4th Cis. 1992)... ccc ccccece 7

Inc, 960 F.2d 1401 (9th Cir. 1992),

cert. denied, 113 S. Ct. 2927 (1993) ........ 13

290 F.2d 312 (7th Cir. 1961).............. 12

a 16

Pe bo Ty, Le S| 9

Statutes

EEE so. 8-6 ob ne o's p00 6 ban wale a be 2

Me a IS Id \o-s-s Gwibieis ec clases cccuevevces 2

SEE REI AS a g aereg Sa se i 3, 6

BP MA I IED, oc ccc ccccccveniuvecees 6

ey ee NE io Sr ae oo ows 3, 6

Rules

Supreme Court Rule 10 .......ccccccccccces 5, 19

Supreme Court Rule 10(c) ...............-.0. 5

No. 95-282

In The

Supreme Court Of The United States

October Term, 1995

Roger O. Brooks, et al.,

Petitioners,

Vv.

United Airlines, Inc.,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Defendant-Respondent United Airlines, Inc.

("United") hereby submits the following brief in opposition

to the Petition for Writ of Certiorari filed by Plaintiffs-

Petitioners Roger O. Brooks et al. ("plaintiffs") in the

above-captioned matter.

EE EEE EEE

2

OPINIONS AND ORDERS IN THE COURTS BELOW

There are no reported opinions or orders in this

case. The opinion of the Colorado Court of Appeals, not

selected for publication, is reprinted in the Appendix

hereto at pages A-2 through A-18. United has reprinted

the lower court’s opinion in an Appendix to this Brief in

Opposition because the opinion as reprinted in the

Appendix to the Petition for Writ of Certiorari contained

numerous typographical mistakes and omissions of text.

JURISDICTION

The Colorado Court of Appeals entered its opinion

on June 16, 1994. That court entered an Order denying

the plaintiffs’ Petition for Rehearing on July 14, 1994. The

statutory basis for this Court’s jurisdiction to review on a

writ of certiorari the decision of the Colorado Court of

Appeals is 28 U.S.C. § 1257(a). The suggestion in the

Petition for Writ of Certiorari that this Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1) is incorrect.

SUMMARY OF ARGUMENT

It is a well-recognized principle that federal labor

law preempts state-law claims which would require the

interpretation of a collective bargaining agreement. See

Lingle v, Norge Div, of Magic Chef, Inc,, 486 U.S. 399, 413

(1988). This Court’s decision in Hawaiian Airlines, Inc, v,

Norris, 114 S. Ct. 2239 (1994), removed any doubt as to

3

the applicability of Lingle, decided under Section 301 of

the Labor-Management Relations Act, 29 U.S.C. § 185, to

cases involving preemption under the Railway Labor Act,

45 U.S.C. §$§ 151 et seg. It is indisputable that the

Colorado Court of Appeals applied the Lingle standard in

this case. As a result, the Colorado court’s decision poses

no conflict with the decision in Hawaiian Airlines or with

any other decision of this Court.

As required by Lingle, the Colorado Court of

Appeals analyzed the elements of each of the plaintiffs’

causes of action under Colorado law in light of the specific

circumstances of this case. The court concluded that each

of the plaintiffs’ state-law claims was dependent on a

disputed interpretation of the October 17, 1985 collective

bargaining agreement, in particular, on the meaniug of the

agreement’s restrictions on asset transactions and other

job-security provisions. The plaintiffs do not challenge

that determination in this Court. The Colorado Court of

Appeals concluded that the plaintiffs’ claims were

preempted by the Railway Labor Act, and, in so ruling,

correctly applied the Lingle standard to the plaintiffs’

claims in this case.

The plaintiffs cor.‘end that an exception to the

Lingle doctrine should be created in this case because

United was not a signatory to the October 17, 1985

collective bargaining agreement on which all of the

plaintiffs’ state-law claims are based. The plaintiffs’

position finds no support in this Court’s precedents.

4

Moreover, there is a long line of federal circuit court

decisions holding, on the authority of Lingle, that state-law

claims against a non-signatory to a collective bargaining

agreement are preempted if those claims would require an

interpretation of the labor agreement. Because the Court

in Hawaiian Airlines expressly approved the Lingle

standard, nothing in the Court’s decision in Hawaiian

Airlines called into question those circuit court decisions

on which the Colorado Court of Appeals relied in this

case. Those decisions were correctly decided: the

rationale for the preemption doctrine, i.¢. to promote

uniformity and predictability in the meaning of collective

bargaining agreements, is equally applicable whether or

not one of the litigants is a signatory to the labor

agreement.

The plaintiffs’ asserted lack of an aliernative

remedy does not change the analysis. The doctrine of

preemption addresses whether state or federal law governs

a particular subject, and it is well-established that federal

law governs the enforcement of rights based on, or

dependent on the interpretation of, a collective bargaining

agreement. The question of what remedy is available

under the controlling law, in this case federal law, is

separate and distinct from the question of which law is

applicable. It is also a question that is not before this

Court because the plaintiffs never even attempted to

invoke an alternative remedy under federal law.

5

In addition to the above reasons, this is an

inappropriate case for the Court’s review because the

decision of the Colorado court was not selected for official

publication, and therefore cannot possibly create any

confusion among the lower courts, and because this case

presents at most an alleged "misapplication of a properly

stated rule of iaw" which "rarely" supports the grant of a

petition. Sup. Ct. R. 10.

ARGUMENT

One of the "compelling reasons" to grant a petition

for writ of certiorari is when "a state court. . . has decided

an important federal question in a way that conflicts with

relevant decisions of this Court." Sup. Ct. R. 10(c). The

plaintiffs attempt to invoke that principle in this case. See,

¢€g-, Petition for Writ of Certiorari ("Petition") at 4

(asserting that the decision of the Colorado Court of

Appeals is "in direct contravention of this Court’s decisions

spanning six decades and culminating in Hawaiian

Airlines"). However, as will be demonstrated below, the

plaintiffs’ argument is based on an inaccurate and

incomplete description of this Court’s decision in Hawaiian

sirli Norri “Hawaii Airlines"),

114 S. Ct. 2239 (1994). Upon a thorough examination of

the decision in Hawaiian Airlines, it is clear that the ruling

of the Colorado Court of Appeals is entirely consistent

with this Court’s decision.

The issue in Hawaiian Airlines was what standard

should be applied in deciding whether the Railway Labor

Act, 45 U.S.C. §§ 151 et seq., preempts a state-law claim.

At the time of its decision in Hawaiian Airlines, the Court

had not decided a case involving preemption of state-law

claims by the Railway Labor Act since its 1972 decision in

Andrews v. Louisville & Nashville Railroad, 406 U.S. 320

(1972). However, the Court had issued a number of

decisions involving preemption under Section 301 of the

Labor-Management Relations Act, 29 U.S.C. § 185.’ See,

e.g., Lingle v. Norge Div, of Magic Chef, Inc,, 486 U.S. 399

(1988); International Bhd. of Elec. Workers v. Hechler,

481 U.S. 851 (1987); and Allis-Chalmers Corp, v, Lueck,

471 U.S. 202 (1985). In Lingle, the Court held that

Section 301 preempts the application of state law where

the state-law claim would require the interpretation of a

collective bargaining agreement. Lingle, 486 U.S. at 413.

1 The Labor-Management Relations Act does not

apply to an employer subject to the Railway Labor Act or

to an employee of any such employer. See 29 U.S.C.

$§ 152(2), (3).

7

Prior to the Court’s decision in Hawaiian Airlines,

some federal circuit courts had ruled that Railway Laoor

Act preemption was governed by the Lingle standard and

that the Railway Labor Act therefore preempted only

those state-law claims which would require the

interpretation of a collective bargaining agreement. See,

¢.g., Anderson v. American Airlines, Inc., 2 F.3d 590, 595-

596 (Sth Cir. 1993); Davies v, American Airlines, Inc.,

971 F.2d 463, 466-467 (10th Cir. 1992), cert. denied,

113 S. Ct. 2439 (1993). However, other courts had ruled

that Railway Labor Act preemption was not limited to

cases covered by the Lingle standard but also was

applicable to preempt state-law claims which were founded

upon some incident of the employment relationship

independent of the terms of a collective bargaining

agreement. See, ¢g. Lorenz v. CSX Transp., Inc.,

980 F.2d 263, 268 (4th Cir. 1992); Hirras v. National R.R.

Passenger Corp., 10 F.3d 1142, 1145 (Sth Cir.), vacated,

114 S. Ct. 2732 (1994).

The Court in Hawaiian Airlines resolved this

conflict among the lowe: courts, and held that the proper

standard for Railway Labor Act preemption is the Lingle

standard for cases involv: 2 preemption under Section 301.

As the Court explained. ‘we conclude that Lingle provides

an appropriate framework for addressing pre-emption

under the RLA, and we adopt the Lingle standard to

resolve claims of RLA pre-emption." Hawaiian Airlines,

114 S. Ct. at 2249.

8

Although the decision of the Colorado Court of

Appeals was issued on June 16, 1994 (see infra at A-2),

four days before this Court’s decision in Hawaiian Airlines,

the opinion of the Colorado court indisputably establishes

that the mandate of Hawaiian Airlines--to apply the Lingle

standard in cases involving preemption under the Railway

Labor Act--was followed:

"In determining whether federal

preemption exists under the RLA, the

federal circuits have turned to the test

announced under §301 of the Labor

Management Relations Act of 1947,

29 U.S.C. § 185(a) (1988). [Citations

omitted. ]}

ss 8

"The pertines question in regard to

preemption is whettier ’the state-law clair’ ./s]

can be resolved without interpreting the

agreement itself.’ Lingle v. Norge Division

of Magic Chef, Inc., supra, 486 U.S. at 410,

108 S. Ct. at 1883, 100 L. Ed. 2d at 421."

Infra at A-9.”

2 Because its opinion makes clear that the Colorado

Court of Appeals applied the Lingle standard in this case,

it would be inappropriate for this Court to remand for

reconsideration in light of Hawaiian Airlines, and the

plaintiffs have not requested such relief. |

9

Despite the foregoing, the plaintiffs contend that

the decision of the Colorado Court -f Appeals is an

example of the "pervasive preemption" that was rejected by

this Court in Hawaiian Airlines. See Petition at 5-6. This

contention is without merit. The Court’s rejection of

"pervasive preemption" was in reference t« the broad view

of Railway Labor Act preemption, previously adopted by

some lower courts, under which state-law claims were

preempted even if the claims did not require interpretation

of a collective bargaining agreement. See Hawaiian

Airlines, 114 S. Ct. at 2245 n.5. However, as demonstrated

above, the Colorado Court of Appeals did not adopt this

broad view of Railway Labor Act preemption; rather, the

Colorado court expressly applied the Lingle standard.

The plaintiffs also repeatedly assert that this Court’s

decision in Hawaiian Airlines narrowed the scope of

Railway Labor Act preemption. See Petition at 5, ey 3

and 20. However, the plaintiffs’ reliance on the

clarification of the scope of Railway Labor Act preemption

effectuated by Hawaiian Airlines is misplaced. The

Court’s decision in Hawaiian Airlines only signified a

change in the law to the extent a particular state or circuit

court had previously applied a more expansive standard of

preemption in Railway Labor Act cases than the standard

for Section 301 cases set forth in Lingle. In such

jurisdictions, Hawaiian Airlines surely did result in a

narrowing of the scope of Railway Labor Act preemption.

See, ¢.g., Felt v. Atchison, T, & S.F. Ry,, 60 F.3d 1416,

1420 (9th Cir. 1995); Westbrook v. Sky Chefs, Inc.,

10

35 F.3d 316, 317-318 (7th Cir. 1994); Harris v. Hirsh, 654

N.E.2d 975 (N.Y. Ct. App. 1995). However, the lower

court’s opinion makes clear that Colorado is not one of

those jurisdictions.

The Colorado Court of Appeals applied the

standard articulated by the Court in Lingle to the

circumstances of this case, and Hawaiian Airlines clearly

did not modify or narrow the Lingle standard. See

Hawaiian Airlines, 114 S. Ct. at 2249. There is nothing in

the Court’s opinion in Hawaiian Airlines that calls into

question any of the federal circuit court decisions applying

the Lingle standard on which the Colorado Court of

Appeals relied in this case, and the plaintiffs’ assertions to

the contrary are incorrect.’ See Petition at 14, 16.

3 Indeed, the plaintiffs did not even cite Hawaiian

Airlines in their Petition for Rehearing before the

Colorado Court of Appeals or in their Petition for

Certiorari before the Colorado Supreme Court. The

plaintiffs mentioned Hawaiian Airlines for the first time in

their Reply Brief filed with the Colorado Supreme Court

after United cited this Court’s decision in its Brief in

Opposition to Petition for Certiorari.

The Colorado Court of Appeals held that all of the

plaintiffs’ state-law claims were dependent on a disputed

interpretation of the October 17, 1985 collective

bargaining agreement. The plaintiffs do not challenge that

determination, and, as previously noted, such a

determination ordinarily would be dispositive of the

preemption issue under the standard set forth in this

Court’s precedents.

The plaintiffs, however, insist that "[t]he facts and

issues of this case are uniquely qualified for certiorari

review because this is the first instance that preemption

under the RLA has been radically expanded to preclude

state-based claims in a case involving unrelated (non-RLA)

parties who have no labor or employment relationship, in

a fashion that leaves the injured parties wholly without

remedy or recourse under law." Petition at 3. See also id.

at 10-11. The plaintiffs’ characterization of the decision of

the Colorado Court of Appeals as a radical departure from

existing preemption caselaw is, however, totally inaccurate.

Rather, in light of the relevant caselaw and the rationale

for the preemption doctrine, United’s status as a non-

a ia

12

signatory to the labor agreement and the plaintiffs’ aileged

lack of an alternative remedy do not justify a departure

from this Court’s preemption precedents.

The plaintiffs have not cited a single decision in

which this Court held that a state-law claim, which was

dependent on an interpretation of a collective bargaining

agreement, was not preempted because the defendant was

a non-signatory to the collective bargaining agreement or

because the plaintiff would allegedly have no alternative

remedy in the event the state-law claim was barred. Such

an argument should be foreclosed by this Court’s decision

in Atkinson v, Sinclair Refining Co,, 370 U.S. 238 (1962).

In that case, the employer asserted a state-law cause of

action for tortious interference with contract against 24

individual employees who had induced their co-workers to

engage in a strike in violation of a no-strike clause in a

collective bargaining agreement. The Court first held that

the employer’s state-law tort claim against its employees

was preempted by Section 301, and then held that, as a

matter of federal law, there was no cause of action against

the employees for tortiously inducing their co-workers to

violate the contractual obligation not to strike. Atkinson,

370 U.S. at 246-249. The result of the Court’s decision

was that the defendants were immune from liability for

acts tortious under state law. See Sinclair Ref. Co. v. |

Atkinson, 290 F.2d 312, 319 (7th Cir. 1961). However, |

such immunity did not render the preemption doctrine )

inapplicable in Atkinson, and United’s alleged immunity

13

likewise does not render preemption inapplicable in this

case. See Petition at 11-19.

The plaintiffs’ argument is also foreclosed by a long

line of federal circuit court decisions, under the Railway

Labor Act and Section 301, holding--without regard to

whether or not a plaintiff would have an alternative

remedy--that state-law claims against a non-signatory to a

collective bargaining agreement are preempted where

those claims would require an interpretation of the labor

agreement. See infra at A-10 through A-11 (citing

Brotherhood Rail C Mi | Pac. RR.

944 F.2d 1422 (8th Cir. 1991) (Railway Labor Act); Baylis

v. Marriott Corp,, 906 F.2d 874 (2d Cir. 1990) (same);

Mil ae hes! : Carri ng

960 F.2d 1401 (9th Cir. 1992), cert. denied, 113 S. Ct. 2927

(1993) (Section 301); International Union, United Mine

‘Workers v. Covenant Coal Corp,, 977 F.2d 895 (4th Cir.

1992) (same)).* In fact, in two of those cases, the courts

* The Section 301 decisions cited by the Colorado

Court of Appeals expressly relied on the Lingle standard.

See Milne Employees Ass’n, 960 F.2d at 1407-1408;

, 977 F.2d at 899; and Dougherty v.

Parsec, Inc., 872 F.2d 166, 767-770 (6th Cir. 1989). In the

two Railway Labor Act decisions cited by the Colorado

court, the courts ruled, consistent with Lingle, that the

State-law claims were preempted because those claims

would require an interpretation of the collective bargaining

agreement. See Brotherhood Railway Carmen, 944 F.2d

at 1430; Baylis, 906 F.2d at 877. The Second Circuit

(continued...)

14

held that the plaintiff's state-law claim was preempted

while expressly acknowledging that the plaintiff did not

have an alternative federal remedy against the non-

signatory. See Baylis, 906 F.2d at 875, 877-878; Covenant

Coal Corp., 977 F.2d at 899-900. The plaintiffs, on the

other hand, have failed to cite a single decision in which

a federal circuit court held that a state-law claim which

would require the interpretation of a collective bargaining

agreement was not preempted because the defendant was

a non-signatory or because the plaintiff allegedly did not

have an alternative remedy.

4(...continued)

recently observed that, to the extent its prior decision in

Baylis contained any statements suggesting that Railway

Labor Act preemption was broader than preemption under

Section 301, those statements were no longer correct in

light of Hawaiian Airlines. See Gay v. Carlson, 60 F.3d

83, 87 (2d Cir. 1995).

5 The plaintiffs rely heavily on statements from the

decision in Dougherty v. Parsec, Inc., 872 F.2d 766, 770-

771 (6th Cir. 1989), to the effect that the preemption

doctrine should generally be inapplicable in lawsuits

against a non-signatory. See Petition at 12-13, 15-16.

However, the basis for the Sixth Circuit’s no-preemption

holding in Dougherty was that, under Ohio law, it was not

necessary to interpret the collective bargaining agreement

to adjudicate the plaintiffs claim for tortious interference

with contract. Jd. at 770. The court’s statements about

the defendant’s status as a non-signatory were dictum.

Indeed, in subsequent decisions the Sixth Circuit has held

that state-law claims against non-signatories are preempted

(continued...)

15

The above-described decisions are analytically

correct. The question of whether or not an employee

covered by a Railway Labor Act collective bargaining

agreement has a remedy against a third party for that

person’s alleged involvement in the violation of the

employee’s rights under the labor agreement is a question

that must be answered as a matter of federal law.

I lone) Ass'n of Machini C | Airlines, I

372 U.S. 682, 691-692 (1963). See also Andrews v.

Louisville & N, R.R,, 406 U.S. 320, 323 (1972); Textile

Workers Union v, Lincoln Mills, 353 U.S. 448, 456-457

5(...continued)

where, under the applicable state tort law, it would be

necessary to interpret the underlying labor agreement.

See, ¢.g., DeCoe v, General Motors Corp., 32 F.3d 212,

217-218 (6th Cir. 1994) (distinguishing Dougherty on the

ground that Ohio tort law did not require proof of breach

of the underlying contract).

The plaintiffs also rely on the Fourth Circuit’s

discussion in Covenant Coal Corp. of the availability of

alternative remedies. See Petition at 14. However, there

is nothing in the court’s opinion to indicate that its finding

of preemption was based on the existence of an alternative

remedy. In any event, the Fourth Circuit specifically noted

that one alternative remedy was for the union to bring suit

directly against the signatories for breach of the labor

agreement. See Covenant Coal Corp,, 977 F.2d at 899.

The plaintiffs in this case had the right under the Railway

Labor Act to pursue, directly against their employer, their

claims for breach of the collective bargaining agreement’s

job-security provisions, and the record will show that many

did so.

16.

(1957); and Local 174, Teamsters v. Lucas Flour Co.,

369 U.S. 95, 102-104 (1962). The plaintiffs’ asserted lack

of an alternative remedy under federal law for the alleged

breach of their job-security rights is, even if true, irrelevant

to the preemption inquiry. The doctrine of preemption

determines whether state or federal law governs a

particular subject. The question of what remedy is

available under the controlling federal law is a separate

and distinct question which has no bearing on the

preemption inquiry. See, eg. Atkinson v. Sinclair

Refining Co,, 370 U.S. 238, 247 n.6 (1962) ("Our holding,

however, is that the suit is a § 301 suit; whether there is a

claim upon which relief can be granted is a separate

question.").°

The federal circuit court decisions discussed above,

and the decision of the Colorado Court of Appeals in the

present case, are also fully consistent with the policy

behind federal preemption of state-law claims that are

dependent on an interpretation of the labor agreement.

That policy is to promote uniformity and predictability in

the meaning of contract terms and to avoid the confusion

of subjecting the same contract language to construction by

courts in all 50 states. As this Court has observed:

6 The question of whether the plaintiffs have an

alternative remedy under federal law is not before this

Court because the plaintiffs have chosen not to attempt to

invoke the Railway Labor Act or any other federal law as

a basis for recovery.

17

"More important, the subject matter of

§ 301(a) ’is peculiarly one that calls for

uniform law.’ The possibility that individual

contract terms might have different

meanings under state and federal law would

inevitably exert a disruptive influence upon

both the negotiation and administration of

collective agreements. Because neither

party could be certain of the rights which it

had obtained or conceded, the process of

negotiating an agreement would be made

immeasurably more difficult by the necessity

of trying to formulate contract provisions in

such a way as to contain the same meaning

under two or more systems of law which

might someday be invoked in enforcing the

contract. Once the collective bargain was

made, the _ possibility of conflicting

substantive interpretation under competing

legal systems would tend to stimulate and

prolong disputes as to its interpretation. .. .”

Local 174, Teamsters v. Lucas Flour Co.,

369 U.S. 95, 103-104 (1962) (citations

omitted), quoted with approval in Lingle,

486 U.S. at404n3. See also Lingle,

486 U.S. at 405-406; Allis-Chalmers Corp. v.

Lueck, 471 U.S. 202, 211 (1985).

Given the rationale for preemption, the status of a

defendant as a non-signatory to the collective bargaining

18

agreement or the absence of an alternative remedy is not

controlling as to the applicability of the docirine. The

application of state law to the terms of a labor agreement

frustrates uniformity of meaning whether or not a litigant

has other avenues of relief or has signed the collective

bargaining agreement.

In light of the foregoing, it is misleading for the

plaintiffs to characterize the decision of the Colorado

Court of Appeals as a radical departure from existing law.

Rather, there is ample authority for the application of the

preemption doctrine to claims against a non-signatory,

including in situations where a plaintiff allegedly would

have no alternative to the state-law remedy. Accordingly,

there is no need for this Court to review the lower court's

decision.

Ill. THERE ARE ADDITIONAL REASONS FOR

DENYING THE PETITION FOR WRIT OF

CERTIORARI.

In addition to the above reasons, this is an

inappropriate case for the Court’s review because the

opinion of the Colorado Court of Appeals was not selected

for official publication and therefore cannot be cited in the

Colorado courts except in limited circumstances not

relevant here. Thus, even if the Colorado court’s opinion

were incorrect--which it is not--the opinion still would not

create any confusion among the lower courts as to the

proper application of this Court’s preemption precedents.

19

Moreover, because it is indisputable that the

Colorado Court of Appeals applied the correct legal

standard, j.¢., the Lingle standard, to the plaintiffs’ claims

in this case, the Petition presents at most a "misapplication

of a properly stated rule of law." A petition for writ of

certiorari is “rarely granted" in such circumstances.

Sup. Ct. R. 10.

The Colorado Supreme Court did not believe this

case was worthy of certiorari review. See Petition at A-29.

United respectfully submits that this Court should reach

the same conclusion.

20

CONCLUSION

The Petition for Writ of Certiorari should be

denied.

Respectfully submitted,

Robert A. Siegel

Counsel of Record

Chris A. Hollinger

O’Melveny & Myers

400 South Hope Street

Los Angeles,

California 90071

(213) 669-6005

Dale R. Harris

Davis, Graham &

Stubbs, L.L.C.

370 17th Street

Denver, Colorado 80202

(303) 892-9400

COLORADO COURT OF APPEALS

No. 92CA1657 and 92CA1732

Roger O. Brooks, et al.,

Plaintiff-Appellants,

United Airlines, Inc., et al.,

Defendant-Appellees.

The court, having considered the response to its

order dated May 20, 1993,

ORDERS that Richard J. Ferris, James J. Hartigan

and David L. Pringle are not parties to this appeal. The

amended motion for extension of time to file answer brief

is GRANTED to and including June 4, 1993.

BY THE COURT

Dated: June 1, 1993

Copies to: Counsel of Record

COLORADO COURT OF APPEALS June 16, 1994

No. 92CA1657

No. 92CA1723 NOT SELECTED FOR PUBLICATION

[Caption Pages Intentionally Omitted]

Appeal from the District Court of the City and County of

Denver

Honorable H. Jeffrey Bayless, Judge

No. 88CV13521

No. 88CV13524

No. 88CV 16656

No. 88CV 16658

No. 88CV21047

Division V JUDGMENT AFFIRMED

Opinion by JUDGE MARQUEZ

Davidson and Briggs, JJ., concur

Kenneth A. Roberts, P.C., Kenneth A.B. Roberts, Jr.,

Denver, Colorado; Retrum, Retrum & Donaldson, Craig

W. Donaldson, Lakewood, Colorado; Richard A. Winkel,

Denver, Colorado; Richard S. Shafer, Aurora, Colorado;

A-3

Waller & Mark P.C., William C. Waller, Denis H. Mark,

Denver, Colorado, for Plaintiffs-Appellants

Davis, Graham & Stubbs, Dale R. Harris, M. James

Grode, Denver, Colorado; O’Melveny & Myers, Chris

Hollinger, Robert A. Siegel, Los Angeles, California, for

Defendants-Appellees |

In this consolidated action, plaintiffs, approximately

775 former employees of Frontier Airlines, Inc. (Frontier),

appeal a summary judgment in favor of defendants, United

Airlines, Inc. (United), a Delaware Corp., Richard J.

Ferris, James J. Hartigan and David L. Pringle. We

affirm.

This dispute centers around two contracts involving

plaintiffs, Frontier, United, and People Express, Inc.

(People). The first contract was entered into on October

17, 1985 (October 1985 agreement) between People,

Frontier, and the Frontier unions, of which plaintiffs are

members. A portion of this agreement addressed rates of

pay, rules, or working conditions, which are generally

considered collective bargaining terms. See 45 U.S.C.

§151a (1988).

Other sections of this contract address subjects that,

according to plaintiffs, are not collective bargaining terms.

As stated by plaintiffs, this non-collective-bargaining

portion was designed to "provide a security package with

A-4

specific contractual protections for plaintiffs against any

restructuring of Frontier or the unapproved sale or

disposal of Frontier’s assets." Two such provisions provide:

9. No Merger. People and

Frontier agree that Frontier will not be

merged, consolidated or otherwise combined

with any other airline, and that Frontier

employees will not be merged with

employees of any other airline, regardless of

otherwise permitted corporate or airline

relationship action, and that Frontier will be

operated as a separate entity with its own

name, colors, and uniforms until at least

February 1, 1990.

12. Sale of Holdings/ Airlines/

Frontier. People agrees that it will not

voluntarily sell or agree to sell all or part of

the stock of Frontier, or grant any proxy

with respect to the stock of Frontier, or

voluntarily take any action or agree not to

take any action with respect to the stock of

Frontier, or voluntarily take any action to

permit Frontier to issue a material amount

of common stock of Frontier, or enter into

any transaction for the sale, transfer or

control of all or a material amount of the

assets or business of Frontier, whether by

merger, consolidation, or otherwise, directly

A-5

or indirectly to any air carrier which at the

date hereof is operating under the

protection of the federal bankruptcy laws or

any affiliate of such a carrier.

In addition, paragraph 11 of the October 1985

agreement restricts the ability of People to sell Frontier’s

assets. That paragraph provides in pertinent part:

Based on the existing pool of assets,

during the term of this Agreement, Frontier

will not sell or otherwise dispose of assets,

including sales or dispositions in the

ordinary course of business, in excess of

aggregate proceeds of $25 million ....

In entering into this Agreement, People

intends that Frontier shall be a viable entity,

that Frontier be strengthened as an airline,

and that Frontier experience profitable

growth, and People and Frontier shall make

every reasonable effort to accomplish the

foregoing. In addition, given profitable

growth at Frontier, People shall endeavor

and make every reasonable effort to

promote and expand both Frontier and

People Express Airlines, Inc. at

approximately proportional rates.

A-6

The second contract was entered into on July 10,

1986, between United and People, and it provided for the

sale of Frontier by _ to United. Although plaintiffs

were not a party to this agreement, the agreement

provides that United’s purchase of assets described in the

agreement "shall be subject to (1) any approvals of

Frontier unions required pursuant to paragraph 11 of the

agreement dated October 17, 1985, between People,

Frontier, and the Frontier unions. . . .”

In this action, plaintiffs assert claims for tortious

interference with the October 1985 agreement, breach of

contract/third party beneficiaries, outrageous conduct, and

fraud and misrepresentation.

Previously, United filed motions to dismiss

plaintiffs’ complaints pursuant to C.R.C.P. 12(b)(1) and

12(b)(5). United argued that plaintiffs’ state law claims

were preempted by the Railway Labor Act, 45 U.S.C.

$151, et seq. (1982) (RLA), and these motions were

granted. On the prior appeal, a different division of this

court held that “absent a determination pursuant to

C.R.C.P. 56, we are unable to dispose of the contract issue

as a matter of law under the doctrine of preemption,” and

reversed and remanded the consolidated actions for

further proceedings. However, that division determined

that the October 1985 agreement is "in part" a collective

bargaining agreement. See, ¢g. Brooks v. United

Airlines, Inc,, (Colo. App. No. 89CA1572, February 14,

1991) (not selected for official publication).

A-7

On remand, plaintiffs filed amended complaints and

United filed a motion for summary judgment which the

trial court granted. The trial court concluded that the

October 1985 agreement was an un-severable collective

bargaining agreement under the purview of the RLA, that

United had standing to assert an RLA-based preemption

defense, and that plaintiffs’ claims were preempted as a

matter of law. We address these issues in order.

Plaintiffs contend that the trial court erred by

treating the court of appeals’ statement that the October

1985 agreement "is, in part, a collective bargaining

agreement” as the law of the case. We disagree.

The pronouncement of an appellate court on an

issue in a case presented to it becomes the law of the case.

People v. Roybal, 672 P.2d 1003 (Colo. 1983). This rule,

however, does not extend to matters other than those

which in fact were decided upon issues presented and

considered in the initial review. Dando Co. V. Mangini,

107 Colo. 170, 109 P.2d 1055 (1941).

Here, the determination was made as a matter of

law and was designed to guide the trial court on remand.

Moreover, we agree with the determination that the

October 1985 agreement is, at least in part, a collective

bargaining agreement because, as stated in 45 U.S.C.

cin iiiniitaieaiataacadi|

A-8

$151a, 152 (1988), it is an agreement "concerning rates of

pay, rules, and working conditions.”

Il.

We further conclude that the trial court properly

determined that the contract is a whole and is not

severable.

The primary objective in the severability inquiry is

to ascertain the intent of the contracting parties. The

relevant question is whether a number of promises

constitute one contract or more than one, and such issue

is to be determined by inquiring whether the parties

assented to all the promises as a single whole, so that

there would have been no bargain whatever if any promise

or set of promises were struck out. John v. United

Advertising, Inc,, 165 Colo. 193, 439 P.2d 53 (1968).

Here, the trial court ruled that continued labor

concessions were the consideration for the promise not to

merge or sell off assets of the airline. It further noted that

the written contract contained no indication of the

intention of the parties for the contract to be severable.

We thus conclude that the trial court properly

determined that the contract was not severable.

A-9

Il.

The dispositive determination thus becomes

whether plaintiffs’ claims are preempted as a matter of

law. We conclude, as did the trial court, that they are

preempted.

In determining whether federal preemption exists

under the RLA, the federal circuits have turned to the test

announced under §301 of the Labor Management

Relations Act of 1947, 29 U.S.C. §185(a) (1988). See

Baylis v. Marriott Corp., 906 F.2d 874 (2d Cir. 1990);

Beard v. Carrollton R.R., 893 F.2d 117 (6th Cir. 1989).

Under §301, "if the resolution of a state-law claim

depends upon the meaning of a collective-bargaining

agreement, the application of state law (which might lead

to inconsistent results since there could be as many state-

law principles as there are States) is preempted... ."

Lingle v, Norge Division of Magic Chef, Inc,, 486 U.S. 399,

405-06, 108 S.Ct. 1877, 1881, 100 L-Ed.2d 410, 426 (1988)

(citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105

S.Ct. 1904, 85 L.Ed.2d 206 (1985)).

The pertinent question in regard to preemption is

whether “the state-law claim[s] can be resolved without

interpreting the agreement itself." Lingle v. Norge

Division of Magic Chef, Inc., supra, 486 U.S. at 410, 108

S.Ct. at 1883, 100 L.Ed.2d at 421.

ee ee CO ee SR ee iT a. seer” fate Ese ry

ie res saben me

A.

First, however, relying on 45 U.S.C. $152, which

addresses “any dispute between the carrier and the

employees thereof," plaintiffs contend that the Railway

Labor Act, by its terms, applies only to collective

bargaining issues between an employer and its employees,

and not employees of a third party. Plaintiffs assert that

the dispute in this action is between United Airlines and

former employees of Frontier Airlines and that the RLA

precludes preemption. We disagree.

The preemption analysis set forth in Lingle has

been applied in cases involving claims against a

nonsignatory to a collective bargaining agreement. See

, ional Union, United Mine Worl 7 wae

Covenant Coal Corp., 977 F.2d 895, 899 (4th Cir. 1992)

("holding that section 301 of the LMRA bars a federal

cause of action for tortious interference with contract, yet

simultaneously preempts the identical state law cause of

action"); Dougherty v. Parsec, Inc, 872 F.2d 766 (6th Cir.

1989) (holding that a state-law claim for tortious

interference with a business relationship was not

preempted under the Lingle test); see also Milne

Employees Ass’n v, Sun Carriers. Inc,, 960 F.2d 1401 (9th

Cir. 1991) (holding that a nonsignatory to a CBA has

Standing to remove a case on the basis of section 301

preemption if resolution of the state law claim requires

interpretation of the collective bargaining agreement and,

then, applying the Lingle test to the state-law claims

A-11

raised); Baylis v. Marriott Corp., supra (holding that a

state-law claim for tortious inducement or breach of

contract was preempted); Brotherhood Railway Carmen v.

Missouri Pacific R.R. Co., 944 F.2d 1422 (8th Cir. 1991)

(holding that tortious interference claim was preempted).

Further, we conclude that United has standing to

raise this defense.

Because of our resolution of this issue, we need not

address plaintiffs’ claim that the trial court erred by

applying the law of the case doctrine to conclude that

United had standing to raise a preemption defense.

B.

We now turn to plaintiffs’ claims and apply the

Lingle test. Here, plaintiffs’ first claim for relief is for

intentional interference with contractual relations.

This tort has been defined as follows:

One who intentionally and

improperly interferes with the performance

of a contract... between another and a

third person by inducing or otherwise

causing the third person not to perform the

contract, is subject to liability to the other

for the pecuniary loss resulting to the other

A-12

from the failure of the third person to

perform the contract.

; I Oivmpian Sales & M

Consultants, Inc,, 690 P.2d 207, 210 (Colo. 1984); see

Dougherty v. Parsec, Inc., supra.

In their amended complaints, plaintiffs allege that

United tortiously interfered with the October 1985

agreement by “wrongfully converting indispensable

Frontier assets with the intended and foreseeable result

that plaintiffs would be irreparably damaged." Plaintiffs

further contend that "[b]y wrongfully obtaining Frontier’s

key assets, and then reneging on the Agreement

{presumably the July 1986 Agreement] to purchase the

stock and integrate the employees, United destroyed all

Frontier operations and assured the non-existence of the

jobs of the plaintiffs." In plaintiffs’ response to United's

motion for summary judgment on the issue of preemption,

they contend that United tortiously interfered with the

October 1985 agreement by inducing People to violate the

agreement.

The underlying basis for the claim appears to be

that People sold Frontier’s assets to United either because

1) United tortiously induced People to enter into the July

1986 agreement and fraudulently induced plaintiffs to

approve the agreement which resulted in a violation of

plaintiffs’ rights under the October 1985 agreement; or 2)

United tortiously induced People to enter into the July

A-13

1986 agreement and without obtaining plaintiffs’ approval,

in violation of plaintiffs’ rights under the October 1985

agreement.

In either case, plaintiffs’ rights under this claim for

relief stem from those terms of the October 1985

agreement which define or integrally involve plaintiffs’

working conditions and consideration provided for

plaintiffs’ acceptance of those working conditions. In our

view, the state-law claim could not be determined without

deciding plaintiffs’ continuing rights and obligations under

the October 1985 agreement.

Moreover, plaintiffs’ claim ultimately requires a

determination of the continuing validity of the October

1985 agreement. We recognize that this presents a

different question than that of interpreting the meaning of

the term in an admittedly valid collective-bargaining

agreement. However, the supreme court in Lingle v.

Norge Division of Magic Chef, Inc,, supra, again confirmed

that the underlying rationale in preempting state-law

claims is to avoid inconsistent results under

collective-bargaining agreements.

In the usual case, the validity of the agreement is

not in question and the issue is whether the state-law

claim depends upon the meaning of terms contained in the

admittedly valid agreement. However, when the state-law

claim depends upon a determination of the very validity of

A-14

the collective-bargaining agreement, inconsistent results

are no less a concern.

We therefore conclude that, in the unusual

circumstances presented here, because the state-law claim

would in effect depend on our determination of the

validity of the July 1986 agreement, which in turn would,

in effect, determine the continuing validity of the October

1985 agreement, pre-emption is equally appropriate.

C.

Plaintiffs’ second claim for relief is for "Breach Of

Contract/Third Party Beneficiaries.”

The July 1986 agreement provides:

yf The foregoing transaction is

subject to the conclusion by no later than

July 31, 1986, subject to ratification by the

unions if required, by August 31, 1986, of

agreements satisfactory to United with labor

unions representing its employees and the

employees of Frontier, concerning the terms

and conditions applicable to United’s

acquisition and operation of Frontier.

United agrees to use its best efforts to

cbtain such agreements.

A-15

In addition, United’s purchase of assets under the

July 1986 agreement was "subject to (1) any approvals of

Frontier unions required pursuant to paragraph 11 of the

agreement dated October 17, 1985."

To determine whether United breached the July 10,

1986 agreement requires an interpretation of the October

17, 1985 agreement.

Thus, we conclude that this claim is also preempted.

D.

Plaintiffs’ third claim for relief is for intentional

infliction of emotional distress and extreme and

outrageous conduct.

Outrageous conduct is committed if, by extreme and

Outrageous conduct, an individual intentionally or

recklessly causes severe emotional distress to another.

Rubenstein v, South Denver National Bank, 762 P.2d 755

(Colo. App. 1988); CJI Civ, 3d 23:1 (1989). To qualify as

outrageous, the offending conduct must go beyond all

possible bounds of decency and be regarded as atrocious

and utterly intolerable in a civilized community. Churchey

yv. Adolph Coors, 759 P.2d 1336 (Colo. 1988); CJI Civ. 3d

23:2 (1989).

In their amended complaints plaintiffs claim that

United’s “acts and/or omissions and other wrongful

:

#:

:

A-16

conduct" amount to extreme and outrageous conduct.

Plaintiffs do not specify particulars concerning the

Outrageous conduct, except by incorporating previous

allegations under this claim.

However, as the trial court noted:

Plaintiffs in this case are not able to

State the elements of their claim for

outrageous conduct without reference to the

October 17, 1985 contract. What plaintiffs

are alleging, in essence, is that the

Outrageous act was obtaining Frontier’s

corporate operational assets. Even if true

such action standing alone is not outrageous.

It may become outrageous only in relation

to a contract which prohibits such action.

Therefore, under the unique facts of this

case the claim of outrageous conduct would

of necessity call for an interpretation of the

October 17, 1985 contract.

Because the conduct here involves interpretation of

a collective bargaining term, we conclude that plaintiffs’

claim is preempted.

E.

In their fourth claim for relief, plaintiffs contend

that United induced plaintiffs to accept and agree to the

A-17

July 1986 agreement with fraudulent representations that

United would not only purchase the assets of Frontier but

also its stock, and would continue the business and thereby

protect Frontier’s employees.

The elements of fraud include: (1) a false

representation of a material existing fact; (2) knowledge

on the part of the one making the representation that it is

false; (3) ignorance on the part of the one to whom the

representation is made of the falsity; (4) intention by the

one making the representation that it be acted upon; (5)

and action on the representation resulting in damage.

Kinsey v. Preeson, 746 P.2d 542 (Colo. 1987). Moreover,

"{iJn all averments of fraud or mistake, the circumstances

constituting fraud or mistake shall be stated with

particularity." C.R.C.P. 9(b).

The crux of this claim for relief is that United used

fraud or misrepresentations to induce plaintiffs’ approval

as required by the July 1986 agreement. Without

plaintiffs’ approval or waiver, the sale would violate both

the October 1985 agreement and the July 1986 agreement.

Under the fifth requirement, plaintiffs must act on

the representation. Here, plaintiffs must demonstrate that,

through fraud, plaintiffs relinquished protections they had

obtained in the October 1985 agreement.

Once again, plaintiffs’ claim requires interpretation

of the October 1985 agreement and, thus, is preempted.

A-18

The judgment is affirmed.

JUDGE DAVIDSON and JUDGE BRIGGS concur.

i . Free