Petition for Writ of Certiorari — Nellis v. Air Line Pilots Ass'n International

Supreme Court, U.S,

FILED ’

931686 APR 25 1994

Nol Fite VF IK veemn

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1993

RICHARD B. NELLIS, et al.,

Petitioners,

V.

AIR LINE PILOTS ASSOCIATION INTERNATIONAL,

Respondent.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

GRAEME W. BusH, ESQUIRE

(Counsel of Record)

ALBERT G. LAUBER, JR., ESQUIRE

CAPLIN & DRYSDALE,

CHARTERED

One Thomas Circle, N.W.

Washington, D.C. 20005

(202) 862-5000

Counsel for Petitioners

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. 1-800-347-8208

QUESTIONS PRESENTED

1. Whether the implied federal duty of fair rep-

resentation preempts a union member’s state

law claims that his union breached contractual

obligations owed directly to union members?

2. Whether the implied federal duty of fair rep-

resentation, which is intended to protect union

minorities from abuse by the union majority,

permits a union to repudiate its contractual

commitments to its members simply because

the majority in the union so desires?

ii

PARTIES TO THE PROCEEDING

Petitioners in this Court are Richard B. Nellis, An-

drew R. Hawkins, Stuart Hughes, Edward J. Breen,

Jr., Raymond T. Burke, Edward L. Fugate, Fred K.

Testa, William T. Gaffney, and Vincent G. Brockle-

bank, who are suing on behalf of themselves and a

class of 2,400 former pilots for Eastern Airlines.

Respondent is the Air Line Pilots Association, Inter-

national.

TABLE OF CONTENTS

OPINIONS BELOW ......-.cecseseeessesenseensennnenscensnnnnersess

JURISDICTION ........ccccseseroeceernecessrsrersssssnneessscnnersers®

CONSTITUTIONAL PROVISION INVOLVED ......+++++

STATEMENT OF THE CASE ......:--eessseseeerrreseesereees

(i) Factual Background ........scscecesesseereersserees

(ii) Proceedings BRIO ..cccccccccccsccsvecccvescoscseees

REASONS FOR GRANTING THE WRIT ......ceeeeeeeeees

The Decision Below Preempting State Con-

tract Claims Conflicts With Decisions Of This

Court And Raises Important Questions Of

: Law Regarding The Proper Scope Of Labor

Law Preemption ........-ssseseeseerrssseseesersreeess

The Decision Below That The Du Of Fair

Representation Permits A Union To Breach

Commitments To The Union Minority On The

Ground That The Breach Is Favored By The

Majority Conflicts With The Precedents Of

This Court And The Courts Of Appeals .....

tions of Federal Labor Law And Policy Re-

ing The Extent Of The Protections

Afforded Union Minorities Against Union

Abuse Of The Exclusive Bargaining

Authority .........cececcsrsessrserersensnesrsnsensnnonsnrerees

CONCLUSION .......-scceeeeeceseressennressnenesersnssssnnressrnreree®

APPENDIX

Appendix A (Opinion of Fourth Circuit) .........-------

Appendix B (Opinion of district court granting sum-

mary judgment) ..........----r-s-rresersesnensnnerensnsnsetes

The Decision Below Raises Important Ques-

14

19

20

iv

TABLE OF AUTHORITIES

CASES Page

ALPA v. O'Neill, 499 U.S. 65 (1991) ............ 12,16,18,19

Air Wisconsin Pilots Committee v. Sanderson, 909

F.2d 213 (7th Cir. 1990), cert. denied, 498 U.S.

BE GRE wladstkatercddbenitsthansisienssisetiatabadisaiethe 14

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

EET sitncctininsussindasrecssqntdonbisinidaaictbedadien Nadine 9,13

Amalgamated Association of Street, Electric fy. &

Motor Coach Employees v. Lockridge, 403 U.S.

EG CP SED ccciccicctishecbiacbiaciatsduataaieebigheddshiies 12,13,14

Anderson v. United Paper Workers Int’l Union,

AFL-CIO, 641 F.2d 574 (8th Cir. 1981) ......... 19

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

ise ff: .. See el ee 13

Baker, Watts & Co. v. Miles & Stockbridge, 876

yf € § fs S Pier 10

Barton Brands, Ltd. v. NLRB, 529 F.2d 793 (7th

Cs TD dace ccesihdasliambetaitadeaptininsd caditaiss 16,17,18

Bautista v. Pan American World Airlines, Inc., 828

Pp GF gs Re; Peat 19

Beardsley v. Chicago & North Western Transpor-

tation Co., 850 F.2d 1255 (8th Cir. 1988), cert.

denied, 489 U.S. 1066 (1989) .............ccccceceeeees 14

Belknap v. Hale, 463 U.S. 491 (1983) ................. 12,14,19

Bender v. Highway Truck Drivers & Helpers, Local

107, 598 F. Supp. 178 (E.D.Pa. 1984), affd,

770 F.2d 1066 (3d Cir. 1985) ...............0ccceceees 11

Bernard v. ALPA, 873 F.2d 213 (9th Cir. 1989) .. 16,17

Breininger v. Sheet Metal Workers Int’l, 493 U.S.

Se IEEE schetisbaksincativcdtninbbdetseaianapaabeieiaie cae 14

Brown v. Sombrotto, 523 F. Supp. 127 (S.D.N.Y.

SUDTEED . sechietiriecoundiciendeniniicith inteimibiaiaininididia didnt 11

SANA Nt it Abbi ihe iniinkDDeatselteetaAbee A. ecueinbdintime Alo ia Rehan tebe cose.Finn Re ee apie tienda

Table of Authorities Continued

Building & Construction Trades Council v. Asso-

ciated Builders & Contractors, 113 S. Ct. 1190

(199B) srsscsccsere pcvidiiaessscnennctescesissTtepeentntlasewsetseses 9,13

Doby v. Safeway, 523 F. Supp. 1162 (E.D.Va.

LGBT) -scsisoscesosheossuncesnasessonscassvenestiveviceniosassesscerees 11

Haerum v. ALPA, 892 F.2d 216 (2d Cir. 1989) ... 14

Hechler v. 1.B.E.W., 834 F.2d 942 (11th Cir.

1987) cccccceccescscsscssssecceccessesssssssssccsssssssessscscserers 11,13

Hogan v. Bhd. of Railway, Airline and Steamship

Clerks, 629 F. aa 1166 (W.D. Va. 1986),

4t

aff'd, 817 F.2d 24 By Cig. 1967) cccecccccecscess 11

LA.M. v. Gonzales, 356 U.S. 617 (1958) «....--.--+-+- 11

LB.E.W. v. Hechler, 481 U.S. 851 (1987) .......---+-. 6,11

Jones v. Trans World Airlines, Inc., 495 F.2d 790

(2d Cir. 1974) ..ecccscescesessereesceesensesssennenensesensnenes 16,17

Legutko v. Local 816, Int'l Bhd. of Teamsters, 606

F. Supp. 352 (E.D.N.Y. 1985), aff'd, 853 F.2d

1046 (2d Cir. 1988) ....--scceeccecseerseseeseneereneneserees 11

Lewis v. Tuscan Dairy Farms, Inc., 829 F. Supp.

665 (S.D.N.Y. 1993) .--ecccccceseeerseerseeseeeneeeseessees 19

Machinists v. Wisconsin Employment Relations

Comm’n, 427 U.S. 132 (1976) ...-.ccccceeeeeeeeereees 13

Malone v. White Motor Corp., 435 U.S. 497

(1978) ..ececcsceccsesecereesercecsnsecsusersesersnscrsonsncsnsasens 9

Maryland v. Louisiana, 451 U.S. 725 (1981) ........ 9

Metropolitan Life Insurance Co. ¥. Massachusetts,

AT1 U.S. 724 (1985) ...cccccccccceceeeseeeseeeesesesereres 9,12,13

Moore v, Local 569, I.B.E.W., 989 F.2d 1534 (9th

Cir, 1993) ......-sccccccsecseecerreercseesserseensensensnsserersees

O'Neill v. ALPA, 939 F.2d 1199 (5th Cir. 1991) .. 19

Rakestraw v. United Airlines, Inc., 981 F.2d 1524

(7th Cir. 1992) ....----ececceseerseresersensreneres 7,8,15,16,17

Rakestraw v. United Airlines, Inc., 989 F.2d 944

(7th Cir. 1998) .......-ceceercceeereseesssensnesserecesnerses 14,15

Table of Authorities Continued

Page

San Diego Building Trade Council v. Garmon, 359

Cra Ie NUNES: deneupicenitndetddincinithenditiiubesntntinamieis 13

Steele v. Louisville & N. R. Co., 323 U.S. 192

CEPI ntecbcchbesaialodadedsdveisibitcauecschsetciaipestssiiidiiaginns 9,14

Swatts v. United Steelworkers of America, 808 F.2d

FR es Se 19

Teamsters Local Union No. 42 v. NLRB, 825 F.2d

| gs ke, SRN Se ceeee oN 16,17

United Steelworkers of America v. Rawson, 495 U.S.

IE sivcechssatlintendidiniisersipaisdeeiaatbicibtnton 6,10,11,13

Vaca v. Sipes, 386 U.S. 171 (1967) ...............000. 7,9,12,15

Warehouse Union 860 v. NLRB, 652 F.2d 1022 (D.C.

SPI s UIED <cltitedecchbetiuiantclistaiuice Ba EE 19

Wooddell v. I.B.E.W., 112 S. Ct. 494 (1991) ......... 11

Worm v. American Cyanamid Co., 970 F.2d 1301

SEE EI UIE cic cckilavatininsabeduaditinenhinsecuddcheedsenstes 10

STATUTES

ee ee BED ctnibticieadedhiincsvik ce tdbcencthatncsibedsees 1

ea IS a 2

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1993

No. 93-

RICHARD B. NELLIS, et al.,

Petitioners,

Vv.

Arr LINE PiLots ASSOCIATION INTERNATIONAL,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

Petitioners respectfully pray that a writ of certiorari

be issued to review the judgment of the United States

Court of Appeals for the Fourth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals is reported at

15 F.3d 50 (App. 1a-5a). The opinions of the United

States District Court for the Eastern District of Vir-

ginia are reported at 805 F. Supp. 355 and 815 F.

Supp. 1522 (App. 49a-6la & 6a-48a).

JURISDICTION

The court of appeals entered judgment on January

24, 1994. This Court’s jurisdiction is invoked under

28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

U.S. Const. Art. VI:

This Constitution, and the laws of the United

States which shall be made in pursuance thereof

. shall be the supreme law of the land... .

STATEMENT OF THE CASE

Petitioners are nine individuals representing them-

selves and a certified class of 2400 similarly situated

former Eastern Airlines pilots whose union,

respondent Air Line Pilots Association (“ALPA’’),

breached its promises to arrange for them to be hired,

with recognition of their years of seniority at Eastern,

by air carriers that acquired Eastern’s assets during

and following the strike against Eastern in 1989.

ALPA not only failed to take any meaningful affirm-

ative steps to fulfill these promises, it actively ob-

structed their fulfillment by persuading the carriers

acquiring Eastern’s assets not to offer jobs with sen-

iority to Eastern pilots.

The courts below decided that petitioners have no

remedy against their union for this conduct. The dis-

trict court dismissed petitioners’ state law claims on

preemption grounds, holding that the exclusive rem-

edy for breach of promise by a union is the federal

duty of fair representation (App. 49a-61la). The court

then granted summary judgment to ALPA on the

duty of fair representation claim, holding that a

union’s breach of promise does not violate that duty

if the breach is favored by a majority of the union

membership (App. 6a-48a). The court of appeals

= aiesada

3

adopted these rulings as the law of the Fourth Circuit

(App. 1a-5a).

(i) Factual Background

On March 4, 1989, petitioners and the class of pilots

they represent commenced a strike against Eastern

Airlines (App. 6a-7a). Within days thereafter, Eastern

filed a petition under Chapter 11 of the Bankruptcy

Code (App. 7a).

In order to obtain support from the Eastern pilots

for the strike, ALPA made two types of promises.

ALPA first promised that it would apply its existing

“Merger Policy” to any breakup of Eastern resulting

from the strike in a manner that would ensure that

Eastern pilots would transfer with seniority to car-

riers that acquired Eastern assets as a result of the

strike (App. 13a). Independent of its Merger Policy,

ALPA also promised that it would “make every effort

to be sure that Eastern pilots go with [the transferred

assets],”’ and ‘‘mandate[d] that Eastern pilots would

be transferred with their seniority intact to any other

ALPA carrier that may acquire Eastern aircraft or

routes” (App. 13a). These promises were set forth in

resolutions of the Executive Board, one of the highest

governing bodies of ALPA, and in written and video

tape communications sent into the homes of every

striking Eastern pilot (App. 12a-13a).

The Merger Policy establishes an internal union

procedure to ensure the transfer of pilots, with sen-

jority, between airlines in connection with mergers

and other types of asset dispositions. At the time of

the Eastern strike, the Policy provided that ALPA

would “take all steps” to ensure the right of pilots

at a “donor” airline such as Eastern to obtain jobs,

with seniority, as pilots at an airline to which assets

are transferred (App. 10a). Once the acquiring carrier

committed to hire the donor carrier’s pilots, the Policy

provided a procedure for determining the number of

pilots that would transfer and the manner in which

they would be slotted into the acquiring carrier’s sen-

iority list (App. 10a).

Notwithstanding ALPA’s initial promises when it

was attempting to marshall support for the strike,

ALPA and the Master Executive Councils (““MECs’’)!

for the acquiring airlines did not support lateral trans-

fer when ALPA carriers began to acquire Eastern’s

assets. Instead, in direct contacts with the acquiring

carriers who would otherwise have been willing to

hire Eastern pilots with seniority, they objected to

lateral transfer (App. 13a-16a). Despite Pan Am man-

agement’s express willingness to hire Eastern pilots

with seniority in connection with Pan Am’s 1989 lease

of 14 aircraft from Eastern, “‘opposition within ALPA,

specifically from the Pan Am MEC, eventually caused

Pan Am to hire pilots from elsewhere’’ (App. 14a).

There was similar opposition from within ALPA to

the transfer of Eastern pilots to Midway in connection

with its 1989 acquisition of 10 Eastern planes (App.

14a). Likewise, in negotiations with USAir concerning

‘Unlike most labor organizations, ALPA is a unitary labor

organization, with a single Constitution governing all subordinate

bodies. It has no local unions. Instead, ALPA has a Master

Executive Council at each airline employing ALPA pilots, com-

posed of elected representatives from that airline’s pilot group

(App. 7a). The MECs have no existence independent from ALPA,

and under the terms of ALPA’s Constitution, ALPA—not the

MECs—is responsible for representing the pilots at each airline.

The MECs are thus bound by ALPA’s policies and ALPA is

bound by the MECs’actions.

5

its 1989 offer to purchase 15 Eastern jets, the USAir

MEC objected to the express condition in USAir’s

written offer that Eastern pilots be hired with sen-

jority (App. 14a-15a). Finally, the Delta MEC reached

a private agreement with management to the effect

that the Policy did not apply to Delta’s 1991 purchase

of 10 Eastern aircraft (App. 15a).

Following the strike, ALPA interpreted and

amended the Merger Policy so as to dilute or elimi-

nate the requirement that it “‘take all steps’ to secure

lateral transfer (App. 10a-12a). ALPA then concluded

that it had complied with its amended Merger Policy

with respect to the Pan Am and Midway transactions

in 1989 and “never formally resolved the issue of

whether ALPA’s ... Policy obligations with respect

to [the Delta transaction in 1991] were completely

satisfied” (App. 17a-18a). ALPA never addressed

whether the interference by the MECs at the ac-

quiring carriers with their managements’ willingness

to hire Eastern pilots with seniority was in compli-

ance with the Policy and promises previously made

to Eastern pilots.

The allegations in the complaint, along with the fair

inferences to be drawn from the record on ALPA’s

motion for summary judgment, were that: (1) ALPA

promised to obtain lateral transfer jobs for Eastern

pilots; and (2) ALPA breached that promise by ac-

tively opposing lateral transfer. As the district court

concluded:

ALPA’s national leadership reached a deter-

mination in 1989 that obtaining jobs with lat-

eral seniority at the acquiring carriers for the

Eastern pilots would be politically unpopular

with the majority of the ALPA membership.

As a result, according to plaintiffs, ALPA

engaged in a unified strategy to minimize

and evade its obligations to the Eastern pil-

ots under the Fragmentation Policy. . . . In

the Court’s view, a reasonable jury could

draw inferences from the factual record to

accept plaintiffs’ theory (App. 35a-36a).

(ii) Proceedings Below

The complaint sought relief under state law for

breach of contract, intentional interference with con-

tractual relations, and promissory estoppel, and under

federal law for breach of ALPA’s duty of fair rep-

resentation. The district court dismissed petitioners’

state claims on the ground that they are preempted

by the federal duty of fair representation. As the

district court put it, the question to be decided was

whether

state common law of contract prohibited

ALPA from making explicit enforceable

prom:ses to its members and then reneging

on those promises, even if such conduct was

not sufficiently ‘arbitrary, discriminatory, or

in bad faith’ to satisfy the standard for

breach of the duty of fair representation

(App. 55a).

After acknowledging that this Court’s decisions in

United Steelworkers of America v. Rawson, 495 U.S.

362 (1990) and I.B.E.W. v. Hechler, 481 U.S. 851

(1987) supported the applicability of state contract law

to distinct promises made by a union to its members,

the district court nevertheless held petitioners’ claims

preempted on the theory that Rawson and Hechler do

7

not apply to promises that relate to collective bar-

gaining (App. 56a-59a).

After completion of discovery, APA moved for

summary judgment on the federal duty of fair rep-

resentation claim. The district court granted the mo-

tion, holding that ALPA’s breach of promise was not

“arbitrary, discriminatory or [in] bad faith” within the

meaning of the test set forth in Vaca v. Sipes, 386

U.S. 171 (1967). The court held first that it was not

“arbitrary” for ALPA to accede to the wishes of the

acquiring airlines’ pilots even if to do so violated a

promise to the minority Eastern pilots, because ‘‘[a]

union leadership’s decision to follow the wishes of the

majority of its members is not merely rational, but

is the vey essence of union democracy” (App. 22a)

(citing the Seventh Circuit’s decision in Rakestraw v.

United Airlines, Inc., 981 F.2d 1524, 1533 (1992)).

The district court likewise ruled that ALPA’s conduct

was not “in bad faith” because there was no evidence

that ALPA intended renege on its promises when

they were made. The court acknowledged that

“plaintiffs may justifiably be upset that ALPA did

not hold firm to its initial enthusiasm for seniority

integration,” but it concluded that “in the face of the

majority of its members who had reason to oppose

the policy, plaintiffs cannot argue that ALPA’s initial

promulgation of the policy, or ALPA’s early state-

ments in support of the policy were intended to be

‘intentionally misleading’ ”’ (App. 23a-24a).

Finally, the district court found 110 evidence of dis-

criminatory conduct by ALPA. Although purporting

to apply a separate test for “discrimination” from

that it applied to “arbitrariness,” the court again de-

ferred to ALPA’s “not patently unreasonable’’ de-

termination that it had done all that was required by

the Policy and its strike promises (App. 38a-41a). This

decision, like the decision on the “‘arbitrary’’ and “‘bad

faith’’ prongs of the duty of fair representation test,

was based on the lower court’s view of majority rule

in internal union affairs. The court found evidence

that the union majority had changed ALPA’s coin-

mitment to the minority Eastern pilots after the lat-

ter had relied upon it:

Until it became obvious which airline faced

fragmentation of its assets, pilots at all the

carriers stood an equal chance of benefitting

under the Fragmentation Policy. Only when

it became evident that it was the Eastern

pilots who were likely to benefit from the

implementation of the policy, to the rela-

tive disadvantage of the pilots at the ac-

quiring airlines, did the self interest of the

acquiring airlines’ pilots cause them to op-

pose vigorous implementation of the Policy

(App. 25a) (emphasis added).

The court nevertheless approved this conduct on the

ground that “minorities within a union must expect

that the union leadership will frequently make deci-

sions adverse to their interests, if those interests are

in conflict with the interests of the majority’”’ (App.

41a-42a). The Court below thus joins the Seventh Cir-

cuit in Rakestraw in articulating a test of almost total

deference to union majorities.

The Court of Appeals issued a per curiam opinion

adopting the two opinions of the district court as the

law in the Fourth Circuit (App. 5a).

9

REASONS FOR GRANTING THE WRIT

The Decision Below Preempting State Contract Claims

Conflicts With Decisions Of This Court And Raises

Important Questions Of Law Regarding The Proper

Scope Of Labor Law Preemption.

1. The holding below that the duty of fair repre-

sentation itself preempts state contract law (App. 55a),

conflicts with this Court’s established construction of

the Supremacy Clause. The Court has recently reaf-

firmed that it is “reluctant to infer pre-emption” in

the absence of an express statutory provision, and

that “{cjonsideration under the Supremacy Clause

starts with the basic assumption that Congress did

not intend to displace state law.” Building & Com

struction Trades Council v. Associated Builders &

Contractors, 113 S.Ct. 1190, 1194 (1993) (quoting

Maryland v. Lowisiana, 451 U.S. 725, 746 (1981).

“The question whether a certain state action is pre-

empted ... is one of Congressional intent,”’ Allis-

Chalmers Corp. v. Lueck, 471 U.S. 202, 207-08 (1985);

‘(tlhe purpose of Congress is the ultimate touch-

stone.” Metropolitan Life Insurance Co. v. Massachu-

setts, 471 U.S. at 747, citing Malone v. White Motor

Corp., 435 U.S. 497, 504 (1978).

This Court has never held that the duty of fair

representation is itself a source for preemption of

state law. Neither the duty of fair representation nor

any cause of action for its breach is contained in any

law enacted by Congress. On the contrary, the duty

was implied by the Court to protect union members

from abuse of the exclusive collective bargaining

power conferred on unions. Vaca v. Sipes, 386 U.S.

at 181; Steele v. Louisville & N. R. Co., 323 US.

192, 204 (1944). Obviously, Congress cannot have in-

‘

10

tended a cause of action created by the courts to

preempt state law; preemption in these circumstances

is unprecedented and conflicts with the Supremacy

Clause itself.’

2. Even if the duty of fair representation has some

limited preemptive force, this Court’s prior decisions

preclude it from preempting petitioners’ contract

claims here. In United Steelworkers of America, AF'L-

CIO v. Rawson, 495 U.S. 362 (1990), this Court re-

jected a union’s argument that a union member’s con-

tract claim was preempted by the duty of fair

representation observing that ‘“‘we have never held

... that, as a matter of federal law, a labor union

is prohibited from voluntarily assuming additional du-

ties to its employees by contract.” 495 U.S. at 373.

Likewise, in permitting a union member to proceed

with a contract claim for failure to maintain a safe

* See Rawson, 495 U.S. at 382 (Kennedy J., dissenting) (ci-

tations omitted):

Although we have inferred that Congress intended to

impose a duty of fair representation in § 9a), I see

no justification for the further conclusion that Con-

gress desired to grant unions an immunity from all

state tort law. Nothing about a union’s status as the

exclusive representative of a bargaining unit creates

a need to exempt it from yeneral duties to exercise

due care to avoid injuring others. At least to some

extent, therefore, I would conclude that Congress “‘by

silence indicated] a purpose to let state regulation be

imposed.”

See also, Worm v. American Cyanamid Co., 970 F.2d 1301, 1308

(4th Cir. 1992\the lack of an explicit federal cause of action for

false labeling under the Federal Insecticide, Fungicide and Ro-

denticide Act supported the court’s finding that state law claims

were not preempted by the Act); Baker, Watts & Co. v. Miles

& Stockbridge, 876 F.2d 1101, 1108 (4th Cir. 1989\en banc).

11

workplace in 1.B.E.W. v. Hechler, 481 U.S. 851, 860

(1987), this Court recognized that a union can “ac-

cept{ |] a duty of care through a contractual arrange-

ment” that it would not otherwise have under the

duty of fair representation. The Court stated that

breach of such a duty can be the subject of a state

law “action for breach of contract or a tort ... for

the injuries suffered as a result of the contractual

breach.” Id.’

The courts below held that Rawson and Hechler are

not controlling here, reasoning that a union cannot

by contract assume ‘‘additional duties . . . [that] define

bargaining positions ... or parties with whom the

union must negotiate ... [because] duties of this na-

ture would conflict with, rather than supplement, the

duty of fair representation’ (App. 58a-59a). This hold-

ing conflicts in fundamental principle with decisions

of this Court that have rejected the argument that

decisions respecting collective bargaining are immu-

* Numerous decisions have permitted union members to pursue

contract claims against their unions under section 301 of the

Labor Management Relations Act (“LMRA’’) in circumstances

governed by that statute, Wooddell v. 1.B.E.W., 112 S.Ct. 494,

498-501 (1991), Hechler v. 1.B.E.W., 834 F.2d 942, 947-49 (11th

Cir. 1987); Moore v. Local 569, 1.B.E.W., 989 F.2d 1534 (9th

Cir, 1993); Doby v. Safeway, 523 F. Supp. 1162 (E.D.Va. 1981),

v. Local 316, Int’l Bhd. of Teamsters, 606 F. Supp. 352

(E.D.N.Y. 1985), aff'd, 853 F.2d 1046 (2d Cir. 1988), and under

state law where no federal contract jurisdiction exists under

section 301. See I.A.M. v. Gonzales, 356 U.S. 617, 618-19 (1958);

Hogan v. Bhd. of Ry., Airline and Steamship Clerks, 629 F.

Supp. 1166, 1172 n.11 (W.D. Va. 1986), aff'd, 817 F.2d 248 (4th

Cir. 1987); Bender v. Highway Truck Drivers & Helpers, Local

107, 598 F. Supp. 178, 183 (E.D.Pa. 1984), aff'd, 770 F.2d 1066

(3d Cir. 1985); Brown v. Sombrotto, 523 F. Supp. 127, 133

(S.D.N.Y. 1981).

12

nized by the preemption doctrine from challenge un-

der state law. The Court has refused to preempt state

laws that require substantive terms in a collective

bargaining agreement, stating that federal labor law

“is concerned primarily with establishing an equitable

process for determining terms and conditions of em-

ployment, and not with particular substantive terms

of the bargain.’’ Metropolitan Life Ins. Co. v. Mas-

sachusetts, 471 U.S. 724, 752-53 (1985) (emphasis

added). The Court has also refused to preempt state

law fraud and contract claims by replacement hires

against an employer for refusal to honor strike prom-

ises that replacements would become permanent em-

ployees. Belknap v. Hale, 463 U.S. 491 (1983). And

the Court has repeatedly rejected arguments for spe-

cial treatment of collective bargaining under the duty

of fair representation. Vaca v. Sipes, 386 U.S. at 181

(duty of fair representation suits often involve judicial

review “of the substantive positions taken and the

policies pursued by a union in its negotiation of a

collective bargaining agreement’’); ALPA v. O’Neill,

499 U.S. 65, 73-77 (1991) (rejecting ALPA’s conten-

tion that collective bargaining is a special category

of union conduct immunized from review under the

duty of fair representation). The Court has thus re-

jected the fundamental basis for the lower court

preemption of petitioners’ breach of promise claims.

3. Finally, any preemptive force attributed to the

duty of fair representation must derive solely from

the overlap of the duty with some substantive federal

labor statute. See Vaca v. Sipes, (breach of duty of

fair representation may constitute an unfair labor

practice); Amalgamated Association of Street, Electric

Ry. & Motor Coach Employees v. Lockridge, 403 U.S.

13

274, 289 (1971).* Neither the lower court nor ALPA

has ever identified any provision of the federal labor

statutes that prohibits, protects or leaves unregulated

the voluntary obligation assumed by ALPA which

petitioners seek to enforce under state law in this

case. San Diego Building Trade Council v. Garmon,

859 U.S. 236, 244 (1989); Building & Construction

Trades Council v. Associated Builders & Contractors,

113 S.Ct. 1190, 1194-95 (1993); Machinists v. Wis-

consin Employment Relations Comm’n, 427 U.S. 132,

140 (1976); Metropolitan Life Insurance Co. v. Mas-

sachusetts, 471 U.S. 724, 750 (1985).

ALPA’s promise to ensure lateral transfer for East-

ern pilots is one of a number of acceptable courses

of action for the union to pursue when assets are

transferred between airlines, and the union does not

contend otherwise. Petitioners’ claim is simply that,

having settled on this completely valid course in ad-

vance and asked the Eastern pilots to strike in re-

liance upon the promise that it would pursue this

action, the union may be held liable in damages when

‘ Petitioners’ claims are plainly not preempted because they

infringe on the primary jurisdiction of any administrative agency

charged by Congress with administering the RLA, as the lower

court acknowledged (App. 53a n. 2), Andrews v. Louisville &

Nashville R.R. Co., 406 U.S. 320 (1972); see also Lockridge, 403

U.S. at 289 (claim would involve the primary jurisdiction of the

National Labor Relations Board), or because they seek to enforce

or otherwise depend on the interpretation of a collective bar-

gaining agreement. Andrews, supra (such suits preempted by

section 204 of the RLA); see also, Allis Chalmers v. Lueck, 471

U.S. 202 (1985Xsuits requiring interpretation of collective bar-

gaining agreement preempted by section 301 of the LMRA);

Hechler, supra (same); Rawson, supra (same).

14

it reneges afterwards and actively opposes the out-

come it previously promised to support. In such cir-

cumstances, there is no basis recognized by this Court

for intruding on “the interest of the State in provid-

ing a remedy to its citizens for breach of contract.”

Belknap, Inc. v. Hale, 463 U.S. at 512.

The Decision Below That The Duty Of Fair Repre-

sentation Permits A Union To Breach Commitments

To The Union Minority On The Ground That Breach

Is Favored By The Majority Conflicts With The Prec-

edents Of This Court And The Courts Of Appeals

1. Beginning with Steele v. Louisville & N.N.R. Co.,

323 U.S. 192, 204 (1944), in which the Court first

acknowledged a union’s duty of fair representation

“to represent the entire membership of the craft ...

without hostile discrimination, fairly, impartially, and

in good faith,’’ cases have universally recognized that

the purpose of the duty is to protect individuals and

union minorities from abusive exercise by the union

majority of the union’s exclusive representational

power. 323 U.S. at 200; Breininger v. Sheet Metal

Workers Int’l, 493 U.S. 67, 79 (1989) (duty is an

essential means of enforcing the principle that ‘no

individual union member may suffer invidious, hostile

treatment at the hands of the majority of his co-

workers.’ ”’ (quoting Lockridge, 403 U.S. at 301 (em-

phasis added))); see also Rakestraw v. United Airlines,

Inc., 989 F.2d 944, 947 (7th Cir. 1993) (Ripple, J.,

dissenting from denial of rehearing en banc); Air Wis-

consin Pilots Committee v. Sanderson, 909 F.2d 213,

217 (7th Cir. 1990), cert. denied, 498 U.S. 1085 (1991);

Haerum v. ALPA, 892 F.2d 216, 221 (2d Cir. 1989);

Beardsley v. Chicago & North Western Transportation

Co., 850 F.2d 1255, 1266-67 (8th Cir. 1988), cert. de-

15

nied, 489 U.S. 1066 (1989). A union violates the duty

of fair representation to the union minority when its

conduct is ‘arbitrary, discriminatory or in bad faith.”

Vaca v. Sipes, 386 U.S. at 190.

When the court below followed the Seventh Cir-

cuit’s recent decision in Rakestraw v. United Airlines,

Inc., 981 F.2d 1524 (1992) and held that ALPA’s

conduct here comports with the duty of fair repre-

sentation because it represents the wishes of the ma-

jority of the union, it put itself directly at odds with

the decisions of this Court and other courts of appeals.

In Rakestraw, the Seventh Circuit rejected claims by

union minorities on the ground that “the majority is

entitled to prevail.” 981 F.2d at 1531; see also Rak-

estraw v. United Airlines, Inc., 989 F.2d at 947 (Rip-

ple, J., dissenting from denial of rehearing en banc).

The Fourth Circuit allied itself with this view of the

duty of fair representation when it adopted the dis-

trict court’s opinion that the union majority could

change ALPA’s commitment to the Eastern minority

after the minority had relied upon it. As the lower

court found, “{o]nly when it became evident that it

was the Eastern pilots who were likely to benefit

from the implementation of the policy, . . . did the

self interest of the acquiring airlines’ pilots cause them

to oppose vigorous implementation of the Policy”

(App. 25a). The decision below approves this conduct

on the ground that “minorities within a union must

expect that the union leadership will frequently make

decisions adverse to their interests, if those interests

are in conflict with the interests of the majority”

(App. 42a).

In joining the Seventh Circuit’s almost total defer-

ence to union majorities in Rakestraw, the Fourth

16

Circuit is in fundamental conflict with the very pur-

pose for which the duty of fair representation was

created by this Court. Obviously, if majority prefer-

ence is, in and of itself, a sufficient justification for

union sacrifice of minority contract rights, then the

duty cannot, by definition, serve to protect union mi-

norities from majority action.

2. The decision below, following Rakestraw, also

puts the Fourth Circuit in conflict with decisions of

the First, Second, Seventh and Ninth Circuits defin-

ing the test for “discrimination” violative of the duty

of fair representation.’ Each of those circuits holds

that a union engages in discriminatory conduct when

it makes decisions and sacrifices minority interests

solely to benefit the majority. Teamsters Local Union

No. 42 v. NLRB, 825 F.2d 608, 611 (1st Cir. 1987);

Barton Brands, Ltd. v. NLRB, 529 F.2d 793, 798-99

(7th Cir. 1976); Jones v. Trans World Airlines, Inc.,

495 F.2d 790, 797-98 (2d Cir. 1974); Bernard v.

ALPA, 873F.2d 213, 217 (9th Cir. 1989).

For example, the First Circuit in Teamsters Local

42 found that the union’s endtailing for seniority pur-

poses of the minority group of two employee groups

merging to form a new local was discriminatory:

[A] union may not neglect the interests of a

membership minority solely to advantage the

° Rakestraw dismissed the tri-partite standard discussed in

ALPA v. O'Neill, supra as “conclusions—epithets rather than

standards of conduct or tools of analysis,” 981 F.2d at 1530,

and suggested that the three prongs were subject to the same

highly deferential standard: ‘“‘Buzzwords such as ‘bad faith’ and

‘arbitrary’ being empty, O’Neill analogized the union’s choice to

that of a legislature, subject to the most deferential judicial

review.” 981 F.2d at 1532.

Ee

17

membership majority. Union members are to

be accorded equal rights, not subjugated ar-

bitrarily to the desires of a ‘stronger, more

politically favored group. . . Fy

895 F.2d at 611 (citations omitted). The union’s in-

sistence on endtailing, in the First Circuit’s view,

“eonstituted both discrimination in assigning seniority

__. and a breach of the union’s duty fairly to rep-

resent all of its members.”’ 825 F.2d at 613.

The Seventh Circuit has likewise disapproved of

endtailing a group of employees “solely for the benefit

of a stronger, more politically favored group.” Barton

Brands, Ltd., 529 F.2d at 798-99. That Court distis-

guished other cases that had approved seniority de-

terminations because in those cases the “affected

employees ... were [not] prejudiced by relinquishing

other employment opportunities in reliance on the

dovetailing arrangement” later withdrawn by the

union. Id. at 800.* To the same effect is the Ninth

Circuit decision in Bernard, where the Court ap-

proved a judgment that ALPA breached its duty of

fair representation in violating the terms of its Merger

Policy and negotiating the integration of the seniority

lists of two merging carriers in a manner that dis-

criminated against the less politically powerful group,

which had been non-union prior to the merger. See

also Jones, 495 F.2d at 797-98 (discriminatory to make

seniority determination on basis of length of union

membership).

*The panel opinion in Rakestraw cited Barton Brands with

approval, 981 F.2d at 1535, while the dissent from denial of

rehearing en banc suggested that the panel decision was incon-

sistent with Barton Brands. 989 F.2d at 947.

18

The decision of the court below conflicts with the

decisions of these circuits. The lower court explicitly

concluded that there was evidence, sufficient to go

to a jury, that “‘ALPA engaged in a unified strategy

to evade and minimize its obligation to the Eastern

pilots” because lateral transfer “‘was politically un-

popular with the majority of the ALPA membership”

(App. 35a). As in Barton Brands, 529 F.2d at 800,

moreover, ALPA here did not write on a clean slate—

its prior commitment to the Eastern pilots to secure

lateral seniority, upon which they relied in determin-

ing to risk their jobs by striking, limited the action

the union might otherwise have been able to take

without violating its duty to the Eastern minority.

When the court below approved ALPA’s elimination

of the Eastern pilots’ rights to lateral transfer be-

cause ‘“‘minorities within a union must expect that the

union leadership will frequently make decisions ad-

verse to their interests, if those interests are in con-

flict with the interests of the majority’ (App. 42a),

it squarely rejected the discrimination rulings of the

First, Second, Seventh and Ninth Circuits.’

7 The decision below also conflicts with the arbitrariness test

articulated by this Court. This Court has never suggested that

majority preference alone satisfies the tesi for rationality under

the arbitrariness test, as the court below holds (App. 22a\‘‘{a]

union’s decision to follow the wishes of the majority of its mem-

bers is not merely rational, but is the very essence of union

democracy.”). This Court has, moreover, rejected analysis of

union conduct in isolation from the “factual and legal

at the time of the union’s actions.” ALPA v. O’Neill, 499 U.S.

at 67. The lower court’s failure to consider the factual context—

the union promises and the union interference with the acquiring

carriers’ willingness to hire Eastern pilots laterally—in deter-

mining that ALPA’s conduct was rational misapplies the O’Neill

19

The Decision Below Raises Important Questions of

Federal Labor Law And Policy Regarding The Extent

Of The Protections Afforded Union Minorities Against

Union Abuse Of The Exclusive Bargaining Authority

The decision below raises important questions of

federal labor law and policy regarding the protections

afforded union minorities against abuse of power by

the union majority. The preemption of state contract

claims in favor of a toothless duty of fair represen-

tation leaves union members in the Fourth Circuit

with no meaningful remedy for a union’s breach of

contract and grants unions a license to make and

break commitments to their members with impunity.

By preempting state law remedies and making the

principle of majority rule the touchstone under federal

law, the court below distorted the purpose of the duty

of fair representation and turned it from a shield for

union minorities into a sword that unions may use to

arbitrariness test. See, e.g., Lewis v. Tuscan Dairy Farms, Inc.,

829 F. Supp. 665, 667-69 (S.D.N.Y. 1993).

The lower court application of the bad faith test conflicts with

decisions of the District of Columbia and Eighth Circuits. The

First, Fifth and Seventh Circuits, now joined by the Fourth

Circuit, take the view that strike promises later disavowed are

in bad faith only if the union intended not to honor them when

they were made. Swatts v. United Steelworkers of America, 808

F.2d 1221, 1224-25 (7th Cir. 1986); O’Neill v. ALPA, 939 F.2d

1199, 1201 (5th Cir. 1991); Bautista v. Pan American World

Airlines, Inc., 828 F.2d 546, 550 (9th Cir. 1987). The District

of Columbia and Eighth Circuits hold that such promises are

actionable without regard to the union’s intent at the time the

promises were made. Warehouse Union 860 v. NLRB, 652 F.2d

1022 (D.C. Cir. 1981); Anderson v. United Paper Workers Int'l

Union, AFL-CIO, 641 F.2d 574 (8th Cir. 1981); cf. Belknap v.

Hale, 463 U.S. 508 (1983) (permitting suit against employer for

strike promises and misrepresentations).

20

oppress those who hold unpopular views. This almost

complete emasculation of the remedies available to

injured minority union members raises important is-

sues of federal labor law and policy of wide applic-

ability which should be addressed and clarified by this

Court.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

GRAEME W. BUSH, ESQUIRE

(Counsel of Record)

ALBERT G. LAUBER, JR., ESQUIRE

CAPLIN & DRYSDALE,

CHARTERED

One Thomas Circle, N.W.

Washington, DC 20005

(202) 862-5000

April 25, 1994