Opposition Brief — Everett v. US Airways Group, Inc.

4 Court, U.&

iLEQDO

JUL 22 1999

No. 98-1875 OFFICE OF THE CAERK

IN THE

Supreme Court of the United States

M.A. EVERETT, et al.,

Petitioners,

V.

US AIRWAYS GROUP, INC., et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

NEAL D. MOLLEN

Counsel of Record

Erin M. SWEENEY

PAUL, HASTINGS, JANOFSKY

& WALKER LLP

Attorneys for Respondents

1299 Pennsylvania Avenue, N.W.

10" Floor

Washington, D.C. 20004-2400

(202) 508-9500

154057

@J Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

i

QUESTION PRESENTED

Whether arbitration boards, or “system boards of

adjustment” have exclusive jurisdiction to determine the

meaning and application of collective bargaining

agreements negotiated under the Railway Labor Act as this

Court has previously held. See, e.g., Hawaiian Airlines, Inc.

v. Norris, 512 U.S. 246 (1994); Consolidated Rail Corp. v.

RLEA, 491 U.S. 299, 305 (1989); Union Pac. R.R. v.

Sheehan, 439 U.S. 89, 94 (1978); Andrews v. Louisville &

Nashville R.R., 406 U.S. 320 (1972); Gunther v. San Diego

& Arizona Eastern Ry., 382 U.S. 257 (1965); Brotherhood

of Locomotive Eng’rs v. Louisville & Nashville R.R., 373

U.S. 33 (1963); Pennsylvania R.R. v. Day, 360 U.S. 548

(1959).

il

STATEMENT PURSUANT TO RULE 29.6

Pursuant to Supreme Court Rule 29.6, Respondents

certify the following:

1. Respondent, US Airways Group, Inc., has no parent

corporation and no publicly held company owns 10% or

more of its stock.

2. The parent company of Respondent US Airways,

Inc., is US Airways Group, Inc. The stock of US Airways

Group, Inc., is publicly traded; it owns 100% of the stock

of US Airways, Inc.

3. Respondent, Retirement Income Plan for Pilots of

USAir, Inc., has no parent corporation and no publicly held

company owns 10% or more of its stock.

PARTIES TO THIS PROCEEDING

Appendix D to the petition contains a list of all of the

parties to this proceeding. Pet. App. 26a-35a.

iii

TABLE OF CONTENTS

7 Page

Question Presented ....--.--++srsrerrrrtret 1

Statement Pursuant to Rule 29.6 .....----ss555> il

Parties to this Proceeding .....-----+++ss+++57° il

Table of Contents .....----seeeereerresteeee iil

Table of Cited Authorities .....-----sesreerree Vv

Table of Appendices .....-----++++srerrrrrrte xl

Opinions Below .....------+sssrrrrrrrrt |

Statement of Jurisdiction .....----++s+sererrre l

Statute Involved ......-----eeeer creer rrr l

Counterstatement of the Case ....-------+s+e500° 2

Summary of Argument .....-------sesserreete 6

Reasons for Denying the Writ .......---++++++> 10

I. Under This Court’s Precedents, Only

System Boards Of Adjustment Have

Jurisdiction To Construe RLA Collective

Bargaining Agreements. .....------+-++°> 10

A. This Court Has Held Explicitly That The

System Board Process Is Mandatory For

Retired Employees .....------++-+> 11

lv

Contents

Page

B. The System Board’s Jurisdiction Is Not

SEE usu veesuesuew tween eeus 14

C. The Jurisdiction Of The System Board

Is Not Dependent On The Superiority Of

Arbitral Competence In A Given Case

Re er Ty re sen ee 16

I]. Petitioners Have Failed To Identify Any

Division Of Authority Among The Circuit

Courts Relevant To Their Failure To Use The

System Board Process. ................. 17

III. Resort To The System Board Process Would

Not Have Been “Futile,” And Petitioners

Have Not Suffered Any Breach Of The Duty

Of Fair Representation Or Deprivation Of

kr ye ere ee 19

NE er yr a ee 23

SS

TABLE OF CITED AUTHORITIES

Page

Cases:

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

735 F.2d 328 (9th Cir. 1984) .....-.--- eee eee 12

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

627 F.2d 272 (D.C. Cir. 1980) .......--++-ee 16

Air Line Pilots Ass'n, Int'l v. United Air Lines, 802

F.2d 886 (7th Cir. 1986) ........- ee ee ee eee 13

Allied Chem. & Alkali Workers v. Pittsburgh Plate

Glass Co., 404 U.S. 157 (1971) ....--- + eee eee 15

Andrews v. Louisville & Nashville R.R., 406 USS.

$20 (1972) 2. cc ceccccrcccrccceseces i, 6, 10, 14, 19

Beard vy. Carrollton R.R., 893 F.2d 117 (6th Cir.

SOOT cckdcccecnsascusvenstssveuersinre 12, 16

Bowe v. Northwest Airlines, Inc., 974 F.2d 101

(8th Cir. 1992), cert. denied, 507 U.S. 992 (1993)

Brotherhood of Locomotive Eng’rs v. Louisville &

Nashville R.R., 373 U.S. 33 (1963) ....--- i, 5, 10, 20

Calvert v. Trans World Airlines, 959 F.2d 698

(8th Cir. 1992) 2.0... cece eee eee etter eee: 20

Capraro v. United Parcel Serv. Co., 993 F.2d 328

(3d Cir. 1993) ..... cece cece cece eee ccceeree 19, 20

vi

Cited Authorities

Page

Consolidated Rail Corp. v. RLEA, 491 U.S. 299

GROD 0 00605 000505-¥005-0000090000008R4 At Sy,

D'Elia v. New York, New Haven & Hartford R.R.,

230 F. Supp. 912 (D. Conn.), aff'd, 338 F.2d 701

CBE Ge CPE cccceccesecscencurtedacewen 22

De la Rosa Sanchez v. Eastern Airlines, 574 F.2d

Be EP ls SOUED oes cccccscinsseseuncesets 16

Edelman vy. Western Airlines, 892 F.2d 839 (9th Cir.

BOGOR 6-06.00 40% 005455000061 ee04 Sek 22

Edwards v. Capital Airlines, 176 F.2d 755 (D.C. Cir.

1949), cert. denied, 338 U.S. 885 (1949) ...... 22

Elgin Joliet & E. Ry. v. Brotherhood of R.R.

Trainmen, 302 F.2d 540 (7th Cir.), cert. denied,

FTE Wa EE RODD weccecuavennenypeiesedes 16

Elmore v. Chicago & Illinois Midland Ry., 782 F.2d

We Cree Gal. TSE occ csceseseseceendvidasxtn 22

English v. Burlington N. R.R., 18 F.3d 741 (9th Cir.

SOE 06555290520 s enh nrswnronchedeneeiie 22

Everett v. US Airways Group, Inc., 132 F.3d 770

Ses: Sl SOE: 0.040600 0neadd ke esnceatee 6

Farris v. Alaska Airlines, 113 F. Supp. 907 (W.D.

Wr SHEE + 64060 b00s ac cactaceeneonaakn 22

vil

Cited Authorities

Frey v. Commodity Exchange Auth., 547 F.2d 46

(Tile Cle. 1DTG). 0 cv cvccsevccsscsevevecessves

Gunther v. San Diego & Arizona Eastern Ry., 382

if ®t). -errerrerrerr rrr errr S

Hall v. Eastern Airlines, 511 F.2d 663 (Sth Cir. 1963)

sceeneueceeanveeenevneeoonea @esves ees ee eseeee ese eo eee

Haney v. Chesapeake & Ohio R.R., 498 F.2d 987

(DC. Cie. 19BRD . oc ccccccsvccscecvscoveeses

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246

CIODGD ov cccuencedoscwsssadtecwdssuasevese'

Hayes v. Western Weighing and Inspection Bureau,

838 F.2d 1434 (Sth Cir. 1988) ...........-.--

Henry v. Delta Airlines, 759 F.2d 870 (11th Cir.

GON voc cctccocevcusasesseceweatvensaen

Hodel v. Indiana, 452 U.S. 314 (1981) ..........

Hornsby v. Dobard, 291 F.2d 483 (Sth Cir. 1961)

s@eeceoeve weveeone Ceve Ce Cee CCC eRe e eee eer fs

Jackson v. Trans World Airlines, 457 F.2d 202

CPE Eee, TGFED co vc cccinenrwvanedswepeeves ee:

Kaschak v. Consolidated Rail Corp., 707 F.2d 902

Le Be ) ere errs 7, 17, 18, 20

Page

22

22

vill

Cited Authorities

Page

Leu v. Norfolk & Western Ry., 820 F.2d 825

t, 2h Re 3: UB te are ee eee gey 12

Long v. Flying Tiger Line, Inc. Fixed Pension Plan

for Pilots, 994 F.2d 692 (9th Cir. 1993) ....... 12, 16

McMullans v. Kansas, Oklahoma & Gulf Ry., 229

F.2d 50 (10th Cir. 1956), cert. denied, 351 U.S.

DUPE cach va cccaadis aces dbnsenes eee 16

Miklavic v. USAIR, Inc., 21 F.3d 551 (3d Cir. 1994)

PE Eee ee ere Pe Ty prep ee 18, 19

Morales v. Southern Pac. Transp. Co., 894 F.2d 743

Se es WO wh se oder bi O kwh a Pw awaee bees 20

Nelson v. Piedmont Aviation, Inc., 750 F.2d 1234

(4th Cir. 1984), cert. denied, 471 U.S. 1116 (1985)

EEE PE Ro ee ee mre en Bs MNS sop be Der 13

Pennsylvania R.R. v. Day, 360 U.S. 548 (1959) ...

SPS Hames yn ne Le Land 52 i, 6, 11, 12, 13, 14, 15

Pennsylvania R.R. v. Rychlik, 352 U.S. 480 (1957)

PE eer Ly ere er rei ee or rer more 22

Professional Cabin Crew Ass'n vy. National

Mediation Bd., 872 F.2d 456 (D.C. Cir.), cert.

denied, 493 U.S. 974 (1989) ................ 14

Robinson v. Shell Oil Co., 519 U.S. 337 (1997) ... 14

ix

Cited Authorities

Page

Steffans v. Brotherhood of Ry. Airline and Steamship

Clerks, 797 F.2d 442 (7th Cir. 1986), amended,

123 L.R.R.M. 2835 (7th Cir. 1986) .......---: 22

Thomas v. City of New York, 143 F.3d 31 (2d Cir.

|. | Pee eeeeerTToRPer ore er errr 22

Thorpe v. Housing Auth. of the City of Durham, 393

U.S. 268 (1969) ..... ccc ccccecececevcvceces 22

Union Pac. R.R. v. Price, 360 U.S. 601 (1959) ... 22

Union Pac. R.R. v. Sheehan, 439 U.S. 89 (1978) .

PPP PPE ECT TOT TT Ter TT Tir i, 10, 22

Vaca v. Sipes, 386 U.S. 171 (1967) .. 2... - esses 20

Statutes:

28 U.S.C. § 12541) .. ccc cc eres ccscceccrcees 1

29 U.S.C. § 151, ef Seq. 6. eee eee cette neers 15

45 U.S.C. $151 2... ccc ccercecccrrcccresecvess 13

4$ U.S.C. $153 20. ccccccccecrcccccccrrcserere 1, 21

45 U.S.C. § 153i) .-. ccc ce cre ncceccernceeens 15

45 U.S.C. § 184 2. cc ccccccccesccssvctcesscess 3

Rule:

Fed. R. Civ. P. $4(B) oc ccc ccccccccccrcccccvers 6

TABLE OF APPENDICES

Appendix A — Letter Re Data On Investment

Performance For 1973 To ALPA Dated February

OE ee Pe ee Pet Sere ee Ae

Appendix B — Declaration Of Marvin A. Everett

EPNNOG BERTON 16, 1996 onc ocvcsivcccrecccven

Appendix C — Retirement Income Study For Pilots

Of USAir, Inc. Dated June, 1993 .............

Page

l

Respondents, US Airways Group, Inc., US Airways, Inc.,

and Retirement Income Plan for Pilots of USAir, Inc.,

respectfully submit this brief in opposition to the petition for

certiorari.

OPINIONS BELOW

The judgment of the court of appeals (Pet. App. 1a-2a) is

not reported but is available at 1999 U.S. App. LEXIS 3979

(D.C. Cir. Feb. 19, 1999). The decision of the district court

granting respondents’ motion to dismiss (Pet. App. 7a-25a) is

reported at 927 F. Supp. 478 (D.D.C. 1996). The order of the

district court denying petitioners’ motion for reconsideration

(Pet. App. 3a-6a) is not reported. The decision of the court of

appeals dismissing petitioners’ initial appeal in this case is

reported at 132 F.3d 770 (D.C. Cir. 1998).

STATEMENT OF JURISDICTION

Petitioners invoke the jurisdiction of this Court under

28 U.S.C. § 1254(1). For the reasons given by the district court

and the court of appeals, the federal courts lack subject matter

jurisdiction over the merits of petitioners’ claims.

STATUTE INVOLVED

In addition to the statutory provisions set out in the petition,

Pet. 1-2, the following statutory provision is involved in this

case:

45 U.S.C. § 153 First (q): If an employee or group

of employees, or any carrier, is aggrieved by the

failure of any division of the Adjustment Board to

make an award in a dispute referred to it, or is

aggrieved by any of the terms of an award or by the

failure of the division to include certain terms in

such award, then such employee or group of

2

employees or carrier may file in any United States

district court in which a petition under paragraph (p)

could be filed, a petition for review of the division’s

order. . . . The Court shall have jurisdiction to affirm

the order of the division or to set it aside, in whole

or in part, or it may remand the proceeding to the

division for such further action as it may direct. On

such review, the findings and order of the division

shall be conclusive on the parties, except that the

order of the division may be set aside, in whole or

in part, or remanded to the division, for failure of

the division to comply with the requirements of this

chapter, for failure of the order to conform, or

confine itself, to matters within the scope of the

division’s jurisdiction, or for fraud or corruption by

a member of the division making the order.

COUNTERSTATEMENT OF THE CASE

In certain circumstances and for certain pilots employed

by US Airways, Inc., the Retirement Income Plan for Pilots of

USAir, Inc. (the “Plan’’), provides a pension benefit based on

the “Standard & Poor’s 500 stock index (unadjusted for

dividends).” Acting as Plan Administrator, US Airways has, for

decades, interpreted the phrase to mean that the benefit is

calculated excluding dividends.'

Petitioners, conversely, claim that “unadjusted for

dividends” means that the pension benefit must be calculated

1. Petitioners suggest that this interpretation is a more recent

creation, but that claim is belied by numerous facts in the record,

including a memorandum drafted by the US Airways employee

responsible for making the calculations just three months after the

negotiation of the relevant contractual language. The memorandum

confirms that the calculation is based on “the S&P 500 stocks (without

reinvestment of dividends).” Appendix to this brief at la (emphasis

added), (Joint Appendix p. A1423 in the court of appeals).

Fe a a Oe ee

3

assuming the reinvestment of dividends. The Complaint in this

case was premised on the assertion that US Airways Inc.

(“US Airways”), has misinterpreted the Plan and thus

miscalculated petitioners’ pension benefits.

The district court, however, held that it lacked subject matter

jurisdiction to construe the labor agreement, and the court of

appeals affirmed. That jurisdictional determination — and not

the merits of petitioners’ contractual construction — is the

subject of the petition.

1. The petitioners: Petitioners are approximately 430

retired pilots and 65 pilots currently employed by US Airways,

Inc., although when the Complaint was filed, roughly one third

of the petitioners were flying for the Company. Because

petitioners were on the US Airways’ pilot seniority list as of

December 1, 1972, special provisions of US Airways’ pilot

pension plan apply to them, including the provision at issue in

this case.

All US Airways pilots are represented for purposes of

collective bargaining by the Air Line Pilots Association,

International (“ALPA” or the “Union”). ALPA has disclaimed

any interest in representing the retired pilots.

2. The Retirement Board: As required by the Railway

Labor Act (“RLA”), 45 U.S.C. § 184, the ALPA-US Airways

collective bargaining agreement establishes arbitration boards

or “system boards of adjustment.” One specialized system board

created by the agreement is called the Retirement Board. It has

exclusive authority to resolve disputes which arise out of the

application and interpretation of the collectively bargained terms

of the Plan. The Retirement Board is comprised of two

2. Allegheny Airlines changed its name to USAir in 1979, and in

1997 changed its name again to US Airways. For the sake of simplicity,

this brief refers to the airline as US Airways unless the context requires

otherwise.

4

representatives selected by ALPA and two representatives

selected by US Airways. When these board members cannot

agree on the way to resolve a particular dispute, they appoint

an Impartial Referee.

Any Plan participant (including any of the retired

petitioners) may submit any dispute he or she might have

concerning participation in or benefits under the Plan to the

Retirement Board without ALPA’s involvement or approval.

The decisions of the Retirement Board, with or without an

Impartial Referee, are final and binding on all parties. Each US

Airways pilot receives a copy of the collective bargaining

agreement, and ALPA has periodically publicized the role of

the Retirement Board to its members at US Airways.

3. The dispute: In the late 1980’s, a group of US Airways

pilots complained to both US Airways and the Union that the

Company had misconstrued the language of the contract

regarding their pension rights, and accordingly had

miscalculated their retirement benefits. US Airways

commissioned the actuarial firm Towers Perrin to study the

methods by which the Plan had been administered; Towers

Perrin confirmed that the benefit was to be calculated without

assuming the reinvestment of dividends.

ALPA also studied the matter, and then commissioned

Deloitte & Touche to review the results reached by Towers

Perrin. Deloitte & Touche agreed with Towers Perrin, i.e.,

concluded that US Airways’ administration of the Plan was

consistent with the Plan language. Jd. Appendix to this brief at

6a.’

4. The litigation: After the outside actuarial firms had

confirmed that US Airways had been administering the Plan in

3. Deloitte & Touche did recommend, however, that the letter

agreement being negotiated to memorialize Plan operations be more

explicit in confirming that the calculation is to be made without

assuming the reinvestment of dividends. /d.

5

a manner consistent with its terms, ALPA informed the

complaining pilots that it would not pursue the matter on their

behalf and urged them to obtain separate counsel. Pet. at 7;

Appendix to this brief at 4a. Rather than filing a claim with the

Retirement Board, petitioners sued US Airways, US Airways

Group, Inc. (the holding company which owns US Airways),

and the Plan under the Employee Retirement Income Security

Act (“ERISA”). Counts I and III of the Complaint alleged that

US Airways had misinterpreted and thus misapplied the

negotiated benefit terms. Count II alleged that US Airways had

inaccurately described the available benefits in the Plan’s

Summary Plan Description.

The district court concluded that the interpretation of the

collectively bargained pension benefit is the function of the

“mandatory, exclusive, and comprehensive [arbitration] system

for resolving” contractual disputes established under the

Railway Labor Act — in this instance, the Retirement Board.

See Brotherhood of Locomotive Eng’rs v. Louisville & Nashville

R.R., 373 U.S. 33, 38 (1963). The court concluded (and

petitioners did not disagree) that Counts I and III of the

Complaint turned entirely on the interpretation of the contract.

If petitioners are correct in their reading of the contract, the

court held, the system board could award the requested relief;

if they are incorrect, as a matter of law, Counts I and III of the

Complaint state no viable ERISA claim. The court accordingly

dismissed Counts I and III of the Complaint. The court

concluded, however, that petitioners might have an independent

ERISA claim under Count II — even if the Retirement Board

rejected petitioners’ construction of the contract — and so it

stayed proceedings on that Count pending completion of the

system board proceedings.

Petitioners sought reconsideration of the district court’s

ruling; the court denied the motion. Pet. App. 3a. Petitioners

then filed their first appeal in this case, but the D.C. Circuit

held that the Order was not an appealable final order, and

6

dismissed the appeal. Everett v. US Airways Group, Inc., 132

F.3d 770 (D.C. Cir. 1998).

On remand, the district court certified its Order dismissing

Counts I and III of the Complaint pursuant to Fed. R. Civ. P.

54(b). On this second appeal, the court of appeals affirmed the

judgment of the district court substantially for the reasons stated

in the district court’s opinion. Pet. App. 2a. Petitioners now

seek a writ of certiorari.

SUMMARY OF ARGUMENT

1. The only question answered by the court of appeals —

and the only one posed by the petition — concerns the exclusive

and mandatory jurisdiction of system boards of adjustment to

determine the meaning of labor contracts in the airline industry.

This Court has held repeatedly that, under the Railway Labor

Act, only statutorily mandated arbitration boards have

jurisdiction to interpret a collective bargaining agreement. This

is true even when the contract provision at issue concerns an

employee benefit otherwise regulated by the ERISA.

Petitioners insist that the Railway Labor Act and its

compulsory dispute resolution processes apply only to current

employees, not to former employees. This Court, however, has

twice held expressly that the RLA’s arbitration provisions apply

equally to current and former employees so long as “the claim

itself arises out of the employment relationship.” Pennsylvania

R.R. v. Day, 360 U.S. 548, 552 (1959) (emphasis added);

see also Andrews v. Louisville & Nashville R.R., 406 U.S. 320,

323 (1972). Any other rule, this Court has held, would result in

a gerrymandered dispute resolution process, with arbitrators

construing the contract for active employees and juries

construing the same provisions for retired employees. Such a

schizophrenic system is bound to produce inconsistent results

— with one set of rules applicable to active employees, and a

different set of rules applicable to a second, otherwise identically

7

situated group of participants. That is precisely the evil Congress

and this Court sought to avoid by requiring that all contract

disputes be channeled into the system boards.

2. Petitioners also assert that pension benefit claims are

not subject to arbitration because they do not involve “rates of

pay, rules, or working conditions.” This Court has held,

however, that a dispute is subject to the RLA’s exclusive

arbitration system so long as “a [non-frivolous] claim has been

made that the terms of an existing agreement either establish or

refute the presence of a right to take the disputed action.”

Consolidated Rail Corp. v. RLEA, 491 U.S. 299, 305 (1989).

Interpreting this standard, the courts of appeals uniformly have

held that pension and other benefit disputes fall within the

system board’s exclusive jurisdiction.

3. Petitioners claim that the court below rejected the

holding of the Sixth Circuit Court of Appeals in Kaschak v.

Consolidated Rail Corp., 707 F.2d 902 (6th Cir. 1983), thereby

creating a division of circuit authority on an important question.

The court below, however, only “reject[ed] the applicability of

[Kaschak] to the facts here. . . .” Pet. App. 2a (emphasis added).

This hardly qualifies as a split of authority requiring this Court’s

intervention.

Moreover, the court below was correct in its treatment of

Kaschak. In that case, the union had assertedly told one of its

members that it would pursue a grievance on his behalf, lulling

the individual into inaction until it was too late for him to pursue

the grievance on his own. The Sixth Circuit held that the union’s

misconduct had effectively precluded individual action and

therefore entitled the plaintiff to bypass the RLA’s arbitration

procedures. 707 F.2d at 908. Here, by contrast, ALPA explicitly

told petitioners that it would not pursue the matter for them and

urged them to secure independent counsel; petitioners failed to

press their claims before the Retirement Board only because

they thought they had a better chance on the merits in court.

4. In the absence of any real dispute about the legal

standards applicable to contract disputes under the RLA,

petitioners argue that the court of appeals misperceived the

idiosyncratic facts in this case; those facts do not give rise to

any issue worthy of this Court’s review.

Petitioners rationalize their failure to pursue the RLA’s

adjustment board procedures by asserting that to have submitted

to arbitration would have been “futile.” They assert that US

Airways and ALPA (whose members comprise the Retirement

Board) are allied against them, and therefore complain that they

were (and are) destined to lose in arbitration.

The court of appeals rejected this assertion based on the

uncontested facts. It may well be difficult to conceive how

petitioners could prevail on the merits of the claim, either before

the Retirement Board or in the district court; US Airways and

ALPA — the entities that negotiated the benefit — and two of

the nation’s most respected actuarial firms (Deloitte & Touche

and Towers Perrin) agree that petitioners are simply wrong.

The doctrine of futility, however, does not grant special rights

to those with the most baseless claims, those cases in which an

adverse result is most plainly fore-ordained. The rule urged by

petitioners would permit those with the most frivolous claims

to pick their forum, while those with worthy, or even colorable,

claims would be routed to mandatory arbitration.

Petitioners also predict that an arbitration proceeding before

the system board would deny them due process, and suggest

that if an arbitration occurs, ALPA would likely violate the

duty of fair representation it owes, at a minimum, to its current

pilots. Petitioners have not been deprived of due process,

however, and the Complaint alleged no breach of the duty of

fair representation, indeed, alleged no wrongdoing at all by

ALPA. Petitioners only make dire predictions about what likely

would result were their claims submitted to the system board.

9

Even assuming that due process protections apply to

arbitration proceedings under the RLA (and this Court has held

otherwise), the inchoate nature of petitioners’ fair representation

and due process arguments makes them particularly ill-suited

to review on certiorari. Petitioners seek to avoid the mandatory

and exclusive dispute resolution mechanism designed by

Congress simply because they find it inconvenient.

There simply is no need to except petitioners from the

jurisdiction of the RLA’s arbitration boards. Petitioners will

suffer no prejudice if they are required to submit to the RLA’s

dispute resolution processes. If petitioners go to arbitration, and

are dissatisfied with the results, the RLA explicitly permits them

to return to court in an action to impeach the award, and they

can assert the arguments they advance in the petition, but with

the benefit of a full record.

The exception urged by petitioners would inject

unnecessary confusion and uncertainty into a settled and

predictable area of the law. Currently, both employees and

employers know that all of their contract construction disputes

will go to a system board, and will be considered promptly by

individuals with intimate knowledge of the industry, the parties,

and the history of collective bargaining between them. The rule

urged by petitioners would result in parallel proceedings in

arbitration and in federal court, with the accompanying potential

for inconsistent results and labor unrest. The petition is

premature and inconsistent with the RLA. It should be denied.

10

REASONS FOR DENYING THE WRIT

I.

UNDER THIS COURT’S PRECEDENTS, ONLY

SYSTEM BOARDS OF ADJUSTMENT HAVE

JURISDICTION TO CONSTRUE RLA COLLECTIVE

BARGAINING AGREEMENTS.

The central question posed by the merits of petitioners’

claims is the meaning of the phrase “unadjusted for dividends”

— a question of contract interpretation. The courts below,

however, properly recognized that under the Railway Labor

Act, the business of contract interpretation is a monopoly owned

by system boards of adjustment — here the Retirement Board,

established pursuant to the RLA and implemented by the ALPA-

US Airways collective bargaining agreement. The statutory

arbitration procedure for resolving contract interpretation, or

“minor,” disputes is “a mandatory, exclusive, and

comprehensive system.” Brotherhood of Locomotive Eng’rs v.

Louisville & Nashville R.R., 373 U.S. 33, 38 (1963). “[T]he

compulsory character of [the system board procedures] stems

not from any contractual undertaking between the parties but

from the [RLA] itself.” Andrews v. Louisville & Nashville R.R.,

406 U.S. 320, 323 (1972). “Congress considered it essential to

keep these so-called ‘minor’ disputes within the Adjustment

Board and out of the courts.”” Union Pac. R.R. v. Sheehan, 439

U.S. 89, 94 (1978) (citations omitted).

The court of appeals’ jurisdictional determination is

supported by an unbroken line of decisions from this Court and

a uniform body of circuit law. Petitioners are left to nibble at

the margins of forty years of established precedent. There is no

issue worthy of certiorari present in this case.

11

A. This Court Has Held Explicitly That The System Board

Process Is Mandatory For Retired Employees

Petitioners claim that the system board procedures do not

apply to them because some of them are retired, and therefore,

at least the retired petitioners are not “employees” under the

purported “plain language” of the RLA. The claim is frivolous, ~~

foreclosed by the language of the statute, this Court’s decision

in Pennsylvania R.R. v. Day, 360 U.S. 548 (1959), and every

subsequent lower court decision to decide the point. Specifically,

the Court in Day said that:

The [RLA arbitration process] was established as a

tribunal to settle disputes arising out of the

relationship between carrier and employee. All the

considerations which led Congress to entrust an

expert administrative board with the interpretation

of collective bargaining agreements are equally

applicable when, as here, the employee has retired

from service .... The same collective bargaining

agreement must be construed with the same need

for uniformity of interpretation and orderly

adjustment of differences. There is nothing in the

[RLA] which requires that the employment

relationship subsist throughout the entire process of

administrative settlement. The purpose of the [RLA]

is fulfilled if the claim itself arises out of the

employment relationship which Congress regulated.

Id. at 551-52 (emphasis added).

Petitioners’ contrary rule would turn retirees into a “class

of preferred claimants”:

[Under a contrary rule,] [rJetired employees would

be allowed to bypass the Board specially constituted

for hearing . . . disputes whenever they deemed it

12

advantageous to do so, whereas all other employees

would be required to present their claims to the

Board. . . . To allow [the retired respondent] now to

try his claim in the District Court would only

accentuate the danger of inequality of treatment and

its consequent discontent which it was the aim of

the [RLA] to eliminate. ... Since nothing is a

greater spur to conflicts ... than ... unfair

differentials, not to respect the centralized

determination of these questions through the [RLA]

Adjustment [procedure] would hamper if not defeat

the central purpose of the [RLA].

Day, 360 U.S. at 553 (emphasis added).

Day is no aberration; every court to consider the question

has concluded that RLA adjustment procedures must be

followed even by individuals who are no longer active

employees, as long as the underlying claim arose out of the

employment relationship.*

Petitioners seek precisely the result Day was intended to

prevent. Well over one hundred of the petitioners still worked

4. See, e.g., Long v. Flying Tiger Line, Inc. Fixed Pension Plan

for Pilots, 994 F.2d 692, 695 (9th Cir. 1993) (court lacked subject matter

jurisdiction over former employee’s ERISA claim); Bowe v. Northwest

Airlines, Inc., 974 F.2d 101, 103 (8th Cir. 1992) (same), cert. denied,

507 U.S. 992 (1993); Beard v. Carrollton R.R., 893 F.2d 117 (6th Cir.

1989) (former employee who alleged that railroad lied to insurance

company following his termination about his entitlement to post-

termination benefits is obligated to follow RLA procedure); Leu v.

Norfolk & Western Ry., 820 F.2d 825, 832 n.10 (7th Cir. 1987) (former

employee’s claim that railroad improperly offset medical charges from

settlement is subject to RLA procedures); Air Line Pilots Ass'n Int'l v.

Alaska Airlines, Inc., 735 F.2d 328, 329 (9th Cir. 1984) (retired

employee’s grievance regarding calculation of retirement benefits, filed

several months after retirement, is subject to RLA adjustment

procedures).

Mi i ha tt

13

as pilots for US Airways when this lawsuit was filed. Even

under petitioners’ reading of Day, those petitioners still

employed by US Airways would be obligated to use the RLA’s

contract dispute procedures, but the remaining petitioners would

be free to pursue a federal court action.* Neither case law nor

logic supports such a bizarre result.

Petitioners’ “plain language” argument is also faulty as a

matter of statutory construction. Petitioners say that as retired

employees of US Airways, they are not “employees” under the

RLA because they are no longer “in the service of [a] carrier.”

45 U.S.C. § 151 Fifth. The statutory term “employee,” however,

“includes every person in the service of a carrier,”® but it does

not exclude, either expressly or by implication, individuals who

were, but no longer are, “in the service of a carrier.”’ Id.

(emphasis added). Petitioners seek to read into the statute

language of limitation that simply does not exist.

5. At oral argument in the court of appeals, petitioners’ counsel

suggested that so long as one of the group of claimants had retired,

they would all be excused from pursuing the RLA’s dispute resolution

process.

6. Petitioners excised the word “includes” from their excerpted

definition of the term “employee.” Pet. at 12.

7. For this reason, petitioners cannot rely on Nelson v. Piedmont

Aviation, Inc., 750 F.2d 1234, 1236-37 (4th Cir. 1984), cert. denied,

471 U.S. 1116 (1985), which held that applicants for employment are

not yet RLA employees. Unlike former employees, the claims of

applicants will not involve “either incidents that occurred or benefits

that accrued while they had been employed and subject to the

protections of the RLA.” Air Line Pilots Ass'n, Int'l v. United Air

Lines, 802 F.2d 886, 912 (7th Cir. 1986) (holding that pilots who never

performed any work for United nor submitted to United’s supervision

of them in their work were not “employees” under the RLA;

distinguishing pilots’ status under the RLA from the status of former

employees who are “employees” under the RLA, according to Day),

cert. denied, 480 U.S. 946 (1987).

14

Petitioners’ constricted reading of the term “employee” is

patently inconsistent with this Court’s decisions in both Day

and Andrews. Both cases involved claims by individuals who

formerly worked for the carrier (i.e., those no longer “in the

service of acarrier’’), both raised disputes about the meaning of

the collective agreement, and this Court determined that both

claims were within the exclusive jurisdiction of the RLA’s

arbitration boards.

Indeed, if petitioners’ reading of the statute were correct,

system boards of adjustment would be powerless to hear

wrongful discharge claims, since, by definition, the grievant in

these cases will always be a former employee — no longer “in

the service of [the] carrier” — by the time the matter was grieved.

This unjustifiably narrow reading of the term would bleed the

statute of its most important employee protections. Accord

Professional Cabin Crew Ass'n v. National Mediation Bd. , 872

F.2d 456, 460 (D.C. Cir.) (rejecting union’s “plain language”

argument that former strikers are not “employees” under the

RLA; the word “includes” in the RLA definition of “employee”

is not intended to be a word of limitation; holding that the union’s

“extreme position has been rebuffed by the [National Mediation]

Board and courts alike”), cert. denied, 493 U.S. 974 (1989); cf.

Robinson v. Shell Oil Co., 519 U.S. 337, 341-42 (1997) (term

“employee” as used in Title VII includes former employees,

inter alia because the term as used in the statute includes no

“temporal qualifier”; “Congress . . . could have used the phrase

‘current employees’ ”’).

B. The System Board’s Jurisdiction Is Not Optional

Petitioners make two further efforts to distinguish Day;

neither is meaningful:

1. Petitioners argue that Day does not apply because the

employee there filed a grievance under the RLA prior to quitting;

petitioners note that they “did not commence the RLA process

while they were employees.”

me Pha er

15

Day, however, expressly rejected this proffered

distinction. The determining factor is not the claimant’s

employment status at any particular point in the dispute

resolution process; rather “(t]he purpose of the [RLA] is

fulfilled [and its mandatory arbitration system applies] if the

claim itself arises out of the employment relationship which

Congress regulated.” Day, 360 U.S. at 552 (emphasis added).

Petitioners’ entitlement to pension benefits arises, if at all,

out of their employment relationships with US Airways.*

2. Similarly, petitioners contend that their pension

benefit claim is not subject to arbitration because it is not a

“minor” dispute — i.e., it does not “grow| ] out of grievances

or out of the interpretation or application of agreements

concerning rates of pay, rules, or working conditions.”

45 U.S.C. § 153(i). As this Court has held, a dispute is minor

as long as “a [non-frivolous] claim has been made that the

terms of an existing agreement either establish or refute the

presence of a right to take the disputed action.” Consolidated

Rail Corp. v. RLEA, 491 U.S. 299, 305 (1989).

Petitioners’ claim is wholly contingent on the meaning

of the negotiated plan language. Thus, Petitioners’ claim

8. Petitioners also rely on Allied Chem. & Alkali Workers v.

Pittsburgh Plate Glass Co., 404 U.S. 157 (1971) (“PPG”), for the

proposition that because the term “employee” as used in the National

Labor Relations Act (“NLRA”), 29 U.S.C. § 151, et seq., does not

include retirees, the same is true under the RLA. Petitioners’ reading

of PPG is selective at best (since the PPG opinion suggested that

the remedy available to the retired employees was to arbitrate their

claim to benefits, id. at 181 n.20), but more importantly, the case

interprets the wrong statute — one where arbitration is an option

rather than a statutory mandate — and answers an entirely different

question about the scope of the bargaining duty. It did not overrule,

limit, or even mention Day. It is irrelevant.

16

unarguably is a minor dispute — subject to the exclusive

jurisdiction of the system board.’

C. The Jurisdiction Of The System Board Is Not

Dependent On The Superiority Of Arbitral Competence

In A Given Case

Petitioners also argue that the RLA’s mandatory arbitration

system does not apply whenever labor arbitrators generally lack

specialized knowledge regarding the contractual issue presented.

9. The courts of appeals have uniformly held that disputes over

pensions and other post-retirement benefits are minor disputes, and

that pension benefits are comprehended within the phrase “rates of

pay, rules, or working conditions.” See Long, supra, 994 F.2d at 695

(“In determining the extent of the pilots’ benefits under the collectively

bargained pension agreement, it was within the Retirement Board’s

jurisdiction to consider the weight that should be accorded to the

summary plan description”); Bowe, supra, 974 F.2d at 103 (affirming

dismissal for lack of subject matter jurisdiction because former

employee’s “claim for disability benefits requires the interpretation

or application of the collective bargaining agreement”); Beard, supra,

893 F.2d at 123 (holding that Adjustment Board had exclusive

jurisdiction over benefit claim, even though claim filed after plaintiff

left railroad’s employ); Air Line Pilots Ass'n, Int'l v. Northwest Airlines,

627 F.2d 272, 275 (D.C. Cir. 1980) (“[A]ir carriers and their employees

are obliged to bargain collectively over ‘rates of pay, rules, or working

conditions’ terms which include employee pensions”) (citation

omitted); De la Rosa Sanchez v. Eastern Airlines, 574 F.2d 29, 32-33

(Sth Cir. 1978) (“The determination of whether plaintiff was entitled

to any pension payments from [the airlines] was exclusively for the

Pilots System Board of Adjustment”); Jackson v. Trans World Airlines,

457 F.2d 202, 204 (2d Cir. 1972) (“Retirement and pension plans are

recognized as mandatory subjects of the collective bargaining process’’)

(citations omitted); Elgin Joliet & E. Ry. v. Brotherhood of R.R.

Trainmen, 302 F.2d 540, 543-44 (7th Cir.) (holding that pension plans

are encompassed by the phrase “rates of pay, rules, and working

conditions,” and therefore are a mandatory subject of collective

bargaining), cert. denied, 371 U.S. 823 (1962); McMullans v. Kansas,

Oklahoma & Gulf Ry., 229 F.2d 50, 54-55 (10th Cir. 1956) (same),

cert. denied, 351 U.S. 918 (1956).

17

Under petitioners’ thesis, a district judge is entitled to conclude

in any given case that he or she is more competent on the

particular subject matter of the contract than are arbitrators as a

class, and on that basis deny the system board’s jurisdiction.

But Congress and this Court have plainly drawn an unbreachable

line marking out the boundaries of the system board's

jurisdiction. If the dispute “relates . . . to the meaning or proper

application of a particular provision” of a collective bargaining

agreement, it must be handled by the RLA’s arbitration boards

and not the courts. Consolidated Rail, 491 U.S. at 303. There

simply is no room for the case-by-case competence inquiry

petitioners propose.

I.

PETITIONERS HAVE FAILED TO IDENTIFY ANY

DIVISION OF AUTHORITY AMONG THE CIRCUIT

COURTS RELEVANT TO THEIR FAILURE TO USE

THE SYSTEM BOARD PROCESS.

There is no genuine inter-circuit conflict on any issue posed

by the petition. Petitioners argue that the court below rejected

the Sixth Circuit’s holding in Kaschak v. Consolidated Rail

Corp., 707 F.2d 902 (6th Cir. 1983). In fact, the D.C. Circuit

acknowledged Kaschak, but correctly concluded that the

Kaschak holding did not apply.

The plaintiff in Kaschak sued his employer, Conrail, for

wrongful discharge. Conrail moved to dismiss the claim because

Kaschak had failed to grieve his discharge through the system

board process. The district court granted the motion, but the

Sixth Circuit reversed, holding that the union, through no fault

of Kaschak, had failed to initiate Kaschak’s grievance in a timely

manner. The court observed:

While there is no doubt that an employee may not

opt to have his minor dispute resolved before a court

rather than before the Board, that is not the situation

——

18

which Kaschak’s claim presents to this Court.

Kaschak contends that he never had the chance to

choose between the Board and the district court.

Rather, he claims that he requested the Union to

present his grievance to the Board and that the time

for individual resort to the Board passed while he

was relying on the Union to represent him.

Id. at 908 (emphasis added in part; footnote omitted). In order

for Kaschak to sue Conrail in federal court, the Sixth Circuit

concluded, he would have to meet the “extreme” burden of

establishing: (1) that his failure to request arbitration before

the Board individually was caused by the Union’s breach of the

duty of fair representation (i.e., its failure to process his

grievance); and (2) that it was reasonable for him to rely on the

union to process the grievance. /d. at 913.

As the court below concluded, Kaschak does not apply to

this case. Petitioners failed to initiate a claim before the

Retirement Board — not because ALPA falsely promised that

it would pursue the grievance on their behalf — but because

petitioners believed they could get a more sympathetic hearing

in court. Indeed, ALPA explicitly told petitioners that the Union

would not pursue their claim and urged them to get their own

lawyer. Pet. at 7. Petitioners were not “lulled” into inaction by

union misfeasance; they were tempted into federal court by the

prospect of a decisionmaker less familiar with the contract, its

history, and the parties’ negotiating relationship.

That is why the D.C. Circuit explicitly held: “We reject the

applicability of [Kaschak] to the facts here... .” Pet. App. at 2a

(emphasis added).'® This hardly qualifies as a split of circuit

authority requiring this Court’s intervention.

10. Curiously, Petitioners also cite the Third Circuit's decision

in Miklavic v. USAIR, Inc., 21 F.3d 551 (3d Cir. 1994), to excuse their

failure to initiate arbitration. In that case, however, the Third Circuit

held that the rule announced in Kaschak did not excuse the plaintiffs’

(Cont'd)

19

Il.

RESORT TO THE SYSTEM BOARD PROCESS WOULD

NOT HAVE BEEN “FUTILE,” AND PETITIONERS

HAVE NOT SUFFERED ANY BREACH OF THE DUTY

OF FAIR REPRESENTATION OR DEPRIVATION

OF DUE PROCESS.

Petitioners assert that resort to the Retirement Board would

be “futile” — that they would be the victim of a breach of the

duty of fair representation by ALPA — because US Airways

and ALPA purportedly “are openly and unequivocally adverse

to [their] position.” Pet. at 21. Petitioners predict that if they

actually pursued their claim before the system board, they would

lose. This argument suffers from several flaws; each is

independently fatal to the petition:

|. The doctrine of futility does not grant special nights to

those with the most baseless claims, i.e., those cases in which

an adverse result is most plainly fore-ordained. Such a regime

would be patently inconsistent with the RLA. See Andrews,

supra, 406 U.S. at 322 (“[T]he notion that the grievance and

arbitration procedures provided for minor disputes in the

Railway Labor Act are optional, to be availed of as the employee

or the carrier chooses, was never good history and is no longer

good law”). As the Third Circuit has explained, “[a]n employee

whose substantive claims are clearly foreclosed by the language

of the collective bargaining agreement might argue that

submission of his claim to the Adjustment Board would be futile;

yet clearly, this is not the sort of futility that would, in itself,

warrant access to a judicial forum.” Capraro v. United Parcel

(Cont'd)

failure to initiate arbitration, because this failure was “simply no fault

of the union.” /d. at 558. The petitioners remained “free to file a timely

grievance, even without the [union].” /d. Accordingly, their complaint,

which asserted only a minor dispute, was dismissed for lack of subject

matter jurisdiction. /d.

20

Serv. Co., 993 F.2d 328, 335 n.11 (3d Cir. 1993); see also

Kaschak, supra, 707 F.2d at 908 (“[T]here is no doubt that an

employee may not opt to have his minor dispute resolved before

a court rather than before the Board”). The rule urged by

petitioners would give those with the most frivolous claims a

choice of fora, while those with worthy, or even colorable,

claims would be routed to mandatory arbitration.

2. Petitioners claim that they are bound to lose in

arbitration, not because of the merits of their claim, but because

ALPA has a hidden, self-interested agenda in rejecting

petitioners’ construction of the contract. They predict that this

self-interest would manifest itself during the hearing when

ALPA would join US Airways in rejecting petitioners’ claims

on the merits.

Petitioners, however, cannot bypass the “mandatory,

exclusive, and comprehensive system”'' for resolving

contractual disputes simply because they suspect that the union

might act out of self-interest. As this Court explained in Vaca v.

Sipes, 386 U.S. 171, 184 (1967) (emphasis added; citation

omitted), “it is settled that the employee must at least attempt

to exhaust exclusive grievance and arbitration procedures

established by the bargaining agreement.” More specifically,

‘‘a potential conflict between ALPA and [petitioners] does not

alone render the proceedings before the Adjustment Board

futile.’ Calvert v. Trans World Airlines, 959 F.2d 698, 701 (8th

Cir. 1992) (rejecting argument that “any attempt to seek relief

before the Adjustment Board would be futile” because of alleged

hostility of the union); Morales v. Southern Pac. Transp. Co.,

894 F.2d 743, 745 (Sth Cir. 1990) (claim that union officials

were hostile towards employees was insufficient to show

futility).

11. Brotherhood of Locomotive Eng’rs v. Louisville & Nashville

R.R., 373 U.S. 33, 38 (1963).

21

The Railway Labor Act provides petitioners an orderly

process to test their theories of hostility: if petitioners had

litigated their claim before the system board, and had lost, and

if ALPA’s conduct had suggested fraud or corruption, the

resulting award would have been subject to impeachment in

federal court under 45 U.S.C. § 153 First (q). In this scenario,

petitioners could have asserted the arguments they advance in

the petition, but with the benefit of a full record.

But petitioners argue that Congress’ design is just a waste

of their time. Their petition poses what amounts to a claim of

“anticipatory corruption,” but no facts support it and no law —

from this Court or any other court — would authorize the

procedural bypass they seek.

For all of the foregoing reasons, petitioners’ claims of

futility are predictions, not facts, and the arguments advanced

in the petition are premature. To be sure, petitioners’ claim is

an unlikely one at best in any forum. But petitioners cannot

know what position ALPA might take in arbitration or whether

ALPA will vote to appoint a Referee. The RLA provides an

orderly process for adjusting contract interpretation disputes;

petitioners cannot shed themselves of this statutory mandate

simply because they find it inconvenient.

Similarly, petitioners’ due process claim is premature. They

have not suffered any depravation of due process'’; they merely

suggest that they would likely have suffered some deprivation

12. The due process clause does not even apply to system board

proceedings under the Railway Labor Act (although the Court need not

reach this question given the inchoate nature of petitioners’ claim). In

Sheehan, the plaintiff argued that he had been denied a “fair hearing”

on the merits of his claim, but this Court emphasized that “[jJudicial

review of Adjustment Board orders is limited to [the] three specific

grounds [set forth in the statute itself]. [Arbitration orders under the

RLA] may be set aside only for the three reasons specified therein. We

have time and again emphasized that this language means just what it

says.” Id. 439 U.S. 89, 93 (emphasis added).

Bs

had they actually proceeded to arbitration.'* Significantly, all

but one of the RLA decisions cited by petitioners in support of

their due process claim, Pet. Br. at 23-27, involved post-hearing

challenges made on a full record.'* The other decision — Haney

v. Chesapeake & Ohio R.R., 498 F.2d 987 (D.C. Cir. 1994) —

explicitly rejected the type of pre-hearing challenge petitioners

are attempting here, instructing the plaintiff to proceed to

13. Cf. Hodel v. Indiana, 452 U.S. 314, 335-36 (1981) (holding

that due process challenge to statute's civil penalty procedures was

“premature” because plaintiffs did not show they were ever assessed

civil penalties, much less that they were injured); Thorpe v. Housing

Auth. of the City of Durham, 393 U.S. 268, 284 (1969) (holding that a

decision on petitioner's due process claims regarding hearing

procedures would be “premature,” because intervening events, such as

an administrative finding for the petitioner, may obviate the need for a

challenge to the procedures); Thomas v. City of New York, 143 F.3d 31,

34-35 (2d Cir. 1998) (holding that due process challenge to license

issuance process was “premature” before a hearing or the issuance of

written findings); Frey v. Commodity Exchange Auth., 547 F.2d 46, 49

(7th Cir. 1976) (dismissing pre-hearing due process challenge because

it was uncertain how the administrative law judge would rule).

14. See Union Pac. R.R. v. Sheehan, 439 U.S. 89, 89-90 (1978)

(Board decision rendered after hearing); Union Pac. R.R. v. Price, 360

U.S. 601, 602 (1959) (same); Pennsylvania R.R. v. Rychlik, 352 U.S.

480, 482-83 (1957) (same); English v. Burlington N. R.R., 18 F.3d 741,

743 (9th Cir. 1994) (same); Edelman v. Western Airlines, 892 F.2d 839,

841 (9th Cir. 1989) (same); Hayes v. Western Weighing and Inspection

Bureau, 838 F.2d 1434, 1436 (Sth Cir. 1988); Steffans v. Brotherhood

of Ry. Airline and Steamship Clerks, 797 F.2d 442, 443-44 (7th Cir.

1986) (same), amended, 123 L.R.R.M. 2835 (7th Cir. 1986); Elmore v.

Chicago & Illinois Midland Ry., 782 F.2d 94, 94-95 (7th Cir. 1986)

(same); Henry v. Delta Airlines, 759 F.2d 870, 871 (11th Cir. 1985)

(same); Hall v. Eastern Airlines, 511 F.2d 663, 663 (Sth Cir. 1963)

(same); Hornsby v. Dobard, 291 F.2d 483, 484 (Sth Cir. 1961) (same);

Edwards v. Capital Airlines, 176 F.2d 755, 756 (D.C. Cir. 1949) (same),

cert. denied, 338 U.S. 885 (1949): D’Elia v. New York, New Haven &

Hartford R.R., 230 F. Supp. 912, 913 (D. Conn.) (same), aff'd, 338

F.2d 701 (2d Cir. 1964); Farris v. Alaska Airlines, 113 F. Supp. 907,

908 (W.D. Wash. 1953) (same).

23

arbitration and use the Act’s processes to challenge any

subsequent union malfeasance.

The orderly processes of the Railway Labor Act serve

: important goals; the court of appeals correctly concluded that

petitioners were obligated to process their claims through the

Act’s procedures. No decision of this court or any court of

appeals would suggest a different result.

CONCLUSION

For the foregoing reasons, the Court petition for writ of

certiorari should be denied.

Respectfully submitted,

NEAL D: MOLLEN

Counsel of Record

ERIN M. SWEENEY

PAUL, HASTINGS, JANOFSKY

& WALKER LLP

Attorneys for Respondents

1299 Pennsylvania Avenue, N.W.

10" Floor

Washington, D.C. 20004-2400

(202) 508-9500