Opposition Brief — May v. Shuttle, Inc.

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Supreme Court, U. >.

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No. 97-1674 i ice :

IN THE

Supreme Court of the Untied States

OcTOBER TERM, 1997

JAMES May, et ai.,

= Petitioners,

SHUTTLE, INC., et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the D.C. Circuit

BRIEF FOR RESPONDENT

INTERNATIONAL ASSOCIATION OF MACHINISTS

AND AEROSPACE WORKERS, AFL-CIO

IN OPPOSITION

JOHN A. EDMOND

(Counsel of Record)

JEFFREY A. BARTOS

ANNA L. FRANCIS

GUERRIERI, EDMOND &

CLAYMAN, P.C.

1331 F Street, N.W.

Suite 400

Washington, D.C. 20004

(202) 624-7400

Counsel for Respondent

International Association of

Machinists and Aerospace

Workers, AFL-CIO

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QUESTIONS PRESENTED

1. Whether the court below properly concluded, in

accordance with Vaca v. Sipes, 386 U.S. 171 (1967),

that petitioners’ state-law fraud claim, challenging con-

duct by a union in its capacity as collective bargaining

representative, is preempted by the federal duty of fair

representation when the same conduct was also the basis

for a fair representation claim?

2. Whether the court below properly concluded that

petitioners could not prevail on their Age Discrimination

in Employment Act claim against their former union

because they had failed to adduce any evidence demon-

Strating that the union was involved with the decision to

terminate petitioners’ employment?

3. Whether the court below properly concluded that

the National Mediation Board acted within its jurisdiction

when it made a representational determination pursuant

to a petition filed by a carrier and subsequently joined

by a union?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED 9noooi.5o..-..cccocccccccececcccece cesses i

oe ce oc tl TE I NS TOI SE Te TS SAE 1

StATEMans OF THE CASE... 1

REASONS FOR DENYING THE WRIT... 4

Ss pecpetatiee totes cog SE O E ESIEON SLT So 7

(ili)

TABLE OF AUTHORITIES

CASES

Allied Chem. and Alkali Workers of Am., Local

Union No. 1 v. Pittsburgh Plate Glass Co., 404

Cis RUE RIPE RD icin aisioneneisnincneue ace adc eae

BIW Deceived v. Local S6, Indus. Union of Marine

and Shipbuilding Workers of Am., 182 F.3d 824

CE Se We Ei sisceentannscac aia aieaoe

Carter v. Smith Food King, 765 F.2d 916 (9th Cir.

RE iri hoo cipcccecen semanas ce tuwicbalccdececeaaaaeuaa tue

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

IE sired citi vacaciones una et Cree

Johnson v. Int’l Union Local No. 23, 828 F.2d 961

CUE Be ED eisai eeerickasecaccgasuchbon cbauececeomubceemae

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

BL tele RR NUR tai iat rive On Pee ev

Maynard v. Revere Cooper Prods., Inc., 773 F.2d

ee TE Ry BID cricideecienssieisn Sdnadiins eclebbuaeanae

Nellis v. Air Line Pilots Ass’n, 15 F.3d 50 (4th

Cs I ohitciatete cmcecence pena guslincneouksk oediboame cues

Richardson v. United Steelworkers of Am., 864

Pie RE UE Eee SED sick

Vaca v. Sipes, $86 U.S. 171 (1967) ...........................

STATUTES

Railway Labor Act, 45 U.S.C. §§ 151-188 0000000.

Page

In THE

Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-1674

JAMES May, et al.,

. Petitioners,

SHUTTLE, INC., et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the D.C. Circuit

BRIEF FOR RESPONDENT

INTERNATIONAL ASSOCIATION OF MACHINISTS

AND AEROSPACE WORKERS, AFL-CIO

IN OPPOSITION

OPINIONS BELOW

The opinion of the United States District Court for the

District of Columbia granting summary judgment in favor

of respondents is unreported. Appendix to Petition for

Writ of Certiorari (“Pet. App.”) 4a-34a. The United

States Court of Appeals for the District of Columbia

Circuit adopted the district court’s opinion and published

the opinion as if it was an opinion of the Court of Ap-

peals. That opinion is reported at 129 F.3d 165.

STATEMENT OF THE CASE

This case arises from petitioners’ loss of union repre-

sentation following an election in 1992 and their subse-

quent loss of employment in 1993, when petitioners were

not represented by any union.

Until 1993, petitioners were employed as “fleet service

employees” on a succession of airlines operating a shuttle t

service between Washington, D.C., New York City, and

Boston. Most recently, petitioners were employed by

Shuttle, Inc., a corporation managed by USAir, Inc., and

doing business as the “USAir Shuttle”. For most of that

period, until August 1992, petitioners were represented

for collective bargaining purposes by the International

Association of Machinists and Aerospace Workers, AFL-

CIO (“IAM”). Pet. App. Sa-6a.

At the time USAir assumed management responsibili-

ties for Shuttle, it petitioned the National Mediation Board

(“NMB”) for a determination that USAir and Shuttle

were a “single carrier” for labor-relations purposes. On

May 12, 1992, the IAM invoked the NMB’s jurisdiction

in support of USAir’s “single carrier” petition. At that

time, the fleet service employees at Shuttle, represented by

the IAM, numbered approximately 135. The fleet service

employees at USAir, who were not represented by any

union, numbered approximately 8,000. Pet. App. 7a.

Both the IAM and the United Steelworkers of America

petitioned the NMB for an election among the USAir

fleet service employees. The successful union, if any,

would represent the combined USAir and Shuttle fleet

service employees. On August 10, 1992, the NMB

granted the “single carrier” petition, holding that USAir

and Shuttle would be treated as a single carrier. The

election votes of the combined fleet service employees

were then counted in the representation election. Less

than a majority of the employees voted for union repre-

sentation and the NMB ruled that no union would be

certified to represent these employees. Pet. App. 7a-8a.

On August 31, 1992, the IAM advised each Shuttle

fleet service employee, by letter, that they were no longer

races aed ie eR GA ee ne a

represented by a union. Petitioners stopped paying union

dues and were generally treated by the USAir Shuttle as

unrepresented employees. Pet. App. 8a.

In March 1993, Shuttle unilaterally furloughed thirty

fleet service employees, including ten of the petitioners.

Thereafter, in November 1993, Shuttle furloughed, or

provided voluntary retirement in lieu of furlough to,

eighty-eight fleet service employees, including the remain-

ing petitioners. Pet. App. 8a, 8a n.2.

Petitioners filed suit in May 1994. Against the IAM,

petitioners claimed a breach of the duty of fair represen-

tation, state-law fraud, and vioiation of the Age Discrim-

ination in Employment Act (“ADEA”). Petitioners al-

leged that the IAM breached its duty of fair representa-

tion by seeking a “single carrier” finding, by not warning

petitioners of the consequences of the NMB proceeding,

and by failing to protect petitioners after losing the elec-

tion. Petitioners also brought 2 state-law fraud claim

against the IAM, based on the same pre-election conduct

challenged in the fair representation claim, as well as a

claim pursuant to the ADEA, alleging that the IAM had

caused petitioners’ loss of employment.

The IAM moved for summary judgment on all of these

claims and the district court ruled in favor of the IAM

on each claim. With respect to the fair representation

claim, the district court held that petitioners’ claim was

barred by the statute of limitations. The district court

further held that petitioners’ state-law fraud claim, based

on the same conduct as the fair representation claim, was

preempted. Concerning the ADEA claim, the district

court found that petitioners had not identified any evi-

dence that the IAM was involved in or caused petitioners’

loss of work. Pet. App. 28a-33a. As to the “single car-

rier” proceeding, the district court found that the NMB’s

decision was jurisdictionally valid because the IAM and

the United Steelworkers of America had invoked the

NMB’s jurisdiction seeking a “single carrier” finding. Pet.

App. 24a.

Petitioners appealed the district court’s decision to the |

Court of Appeals for the District of Columbia Circuit.

The Court of Appeals affirmed the district court’s deci- |

sion and adopted its unpublished decision.

REASONS FOR DENYING THE WRIT

With regard to the IAM, the court below properly

held that petitioners’ duty of fair representation claim

preempted their identical state-law fraud claim. Peti-

tioners have not identified any reason for granting a writ

of certiorari on this count. Nor have petitioners offered

a basis to reject the lower court’s findings that petitioners

had failed to adduce any evidence to support an age

discrimination claim against the IAM. Finally, the lower

court’s decision concerning the NMB’s representational

determination was proper.’

1. Petitioners appear to challenge the holding below

that the duty of fair representation preempts petitioners’

state-law fraud claim. Petition for Writ of Certiorari

(“Pet.”) 18-20. This argument lacks merit. Petitioners’

fraud claim hinged on their assertion that the IAM, when

it was their collective bargaining representative, made

misrepresentations to them concerning matters integral to

that representation. Pet. App. 32a. This conduct was

also the basis for petitioners’ claim of a breach of the

duty of fair representation. 7d. As this Court clearly held

in Vaca v. Sipes, 386 U.S. 171 (1967), however, fed-

eral law governs a union’s duty of fair representation, a

duty which may not be subjected to potentially incon- |

sistent obligations derived from state law. Vaca, 386 U.S.

at 188-93.

1 Petitioners do not challenge the Court of Appeals’ decision that

petitioners’ duty of fair representation claim is barred by the

statute of limitations.

LL RENT NT RET ee Nr MAE SSO TOS SR

Following Vaca, the courts of appeals invariably have

held that state claims identical to fair representation

claims and relating only to a union’s conduct as the col-

lective bargaining representative are preempted by the

federal duty of fair representation. See BIW Deceived

v. Local S6, Indus. Union of Marine and Shipbuilding

Workers of Am., 132 F.3d 824, 830 (1st Cir. 1997);

Nellis v. Air Line Pilots Ass’n, 15 F.3d 50, 51 (4th Cir.

1994); Richardson v. United Steelworkers of Am., 864

F.2d 1162, 1166-67 (Sth Cir. 1989); Johnson v. Int'l

Union Local No. 23, 828 F.2d 961, 967 (3rd Cir.

1987); Carter v. Smith Food King, 765 F.2d 916, 921

(9th Cir. 1985); Maynard v. Revere Cooper Prods., Inc.,

773 F.2d 733, 735-36 (6th Cir. 1985). The decision of

the Court of Appeals below to deny petitioners’ state-law

claim on this ground is in conformity with these appellate

decisions and with this Court’s directive in Vaca.

Petitioners sidestep this line of precedent and instead

argue that this Court’s decision in Hawaiian Airlines, Inc.

v. Norris, 512 U.S. 246 (1994) saves their claims. Pet.

19-20. But there is no conflict between the decision

below and that case. In Hawaiian Airlines, this Court

held only that state-law claims involving rights and obli-

gations that arise separately from collective bargaining

agreements are not “minor disputes” under the Railway

Labor Act, 45 U.S.C. §§ 151-188. 512 U.S. at 256-62.

This Court did not hold, as petitioners suggest, that all

state-law claims which are not “minor disputes” may be

maintained in the face of other federal law. Indeed, this

Court has recognized that federal labor law preempts

state law in a variety of contexts not addressed by Ha-

waiian Airlines. See generally, Lingle v. Norge Div. of

Magic Chef, Inc., 486 U.S. 399, 409 n.8 (1988).

Here, no party claims, and no court has held, that the

conduct alleged in petitioners’ state-law claim constitutes

a “minor dispute” subject to mandatory arbitration. Here,

———

pursuant to Vaca, the federal duty of fair representation

preempts petitioners’ state-law fraud claim as it challenges

the IAM’s conduct in its capacity as collective bargaining

representative.

Nineteen of the petitioners further argue, for the first |

time in this proceeding, that their state-law claim against

the IAM cannot be preempted by the duty of fair repre-

sentation because they have retired from Shuttle and are

no longer covered by the Railway Labor Act. Pet. 20.

These petitioners rely upon Allied Chemical and Alkali

Workers of America, Local Union No. 1 v. Pittsburgh

Plate Glass Co., 404 U.S. 157 (1971), in which this

Court held that retirees are not “employees” as defined

by the National Labor Relations Act and are not part of

a bargaining unit for the purposes of collective bargaining.

Of course, the current retirement status of the nineteen

petitioners alters neither the duty of fair representation

that the IAM owed to them during their employment nor

the fact that the fraud claim is derived from the IAM’s

conduct prior to their retirement. As with the other peti-

tioners, the misconduct alleged under state law could im- |

plicate the duty of fair representation under federal law. |

In fact, these nineteen petitioners expressly sought recov- |

ery pursuant to the federal duty of fair representation |

for the alleged misrepresentations made by the IAM.

These petitioners cannot now claim they were not owed

a duty of fair representation due to their status as retirees

and seek recovery pursuant to state law.

2. Petitioners also argue that the court below failed

to apply the appropriate standard of proof to their claims

under the ADEA and instead imposed a heightened bur-

den on them. Pet. 22-25. With regard to the ADEA

claim raised against the IAM, however, the lower court

found “no evidence of record that IAM had anything to

do with plaintiffs’ furloughs ... .” Pet. App. 33a. Pe-

titioners do not now point to any evidence demonstrating

that the IAM participated in or was involved with the

decision to furlough petitioners. It is clear that peti-

tioners’ ADEA claim against the IAM failed not due to an

erroneous standard of proof, but due to a lack of any

evidence to support their claim.

3. Petitioners also challenge the NMB’s jurisdiction

in the single-carrier proceeding, as well as the NMB’s

conduct of the representation election. To the extent these

charges are pertinent to petitioners’ claims against the

IAM, the IAM incorporates by reference the Brief For

Respondents USAir, Inc. And Shuttle, Inc. In Opposition.

CONCLUSION

Respondent IAM respectfully requests that the petition

for writ of certiorari be denied.

Respectfully submitted,