Petition for Writ of Certiorari — Kaufman v. Allied Pilots Ass'n

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Supreme Court, U.S.

I) FILED

Q11232 FEB 192003

No. 01- DEES 06 ae ci

IN THE

Supreme Court of the United States

DR. RICHARD KAUFMAN, on behalf of himself

and all others similarly situated, et ai.,

Petitioners,

ALLIED PILOTS ASSOCIATION, et ai.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UnNitep States Court OF APPEALS FOR THE FirtH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Russet H. Beatie

Counsel of Record

BEATIE AND OsBorRN LLP

521 Fifth Avenue

New York, NY 10175

(212) 888-9000

Attorneys for Petitioners

(Additional Counsel listed on signature page)

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QUESTION PRESENTED FOR REVIEW

Should the Railway Labor Act be extended to preempt

state law claims for damages suffered while a temporary

restraining order is in effect, the union intentionally violates

the order by striking, and the claimants are not parties to the

collective bargaining agreement?

PARTIES TO THE PROCEEDINGS

Petitioners

The Petitioners, in addition to Richard Kaufman,

Dr., on behalf of himself and all others similarly situated, are:

Jack Marut, on behalf of himself and all others similarly situated;

C. Anthony Wainsright, on behalf of himself and all others

similarly situated; Jeffrey Krasnoff, Dr., on behalf of himself

and all others similarly situated; Steven Carli, on behalf of

himself and all others similarly situated; Shon Prejean, on

behalf of himself and all others similarly situated; Center for

Rehabilitative Medicine; Jim Cashion, individually and on

behalf of the plaintiff class; Joellen Cashion, individually

and on behalf of the plaintiff class; Mark Lewis, on behalf of

himself and all others similarly situated; Nancy Geidel;

Ralph A. MacDonald; Mary C. Cascino; Dave Rogers; and

Carolyn Rogers.

Respondents

The Respondents, in addition to the Allied Pilots

Association, are: Richard T. LaVoy; Brian A. Mayhew; David

Aldrich; Stanley Bissell; Ernest Dryer; J. S. Ditty; David

Duquemin; Mark Hunnibel; Jeff Marchand; Steve Roach;

Randy Trommer; L. G Foster; Robert Ames; Norman A.

Patterson; and Dennis M. Breslin.

ill

TABLE OF CONTENTS

Question Presented for Review ................

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Statement of Jurisdiction .....................

Statutory Provisions Involved .................

FRET OP TE PPT OCT ere

Reasons for Granting the Writ .................

Conclusion

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Page

TABLE OF CITEDAUTHORITIES

Page

Cases:

Anderson v. American Airlines, Inc., 2 F.3d 590 (5th

SE EE ok kc dk odo as Paco ea ee a 3

Consolidated Rail Corp. (Conrail) v. Railway Labor

Executives’ Ass'n, 491 U.S. 299 (1989) ........ 4

Davies v. American Airlines, Inc., 971 F.2d 463 (10th

Cir. 1992), cert. denied, 508 U.S. 950 (1993) ... 3

Gay v. Carlson, 60 F.3d 83 (2d Cir. 1995) ........ 3

Harris v. Hirsh, 654 N.E.2d 975 (N.Y. 1995) ..... 4

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

ib basa e wales oon wen se wees te bae bees 4, 5,6

Hirras v. Nat'l R.R. Passenger Corp., 44 F.3d 278

Ce SE iis 04 ah ois no boa sande chee 3

Lingle v. Norge Division of Magic Chef, Inc., 486

SE RE aicNS sh caaes ds +4 gs eae sued ae 4,6

Maher v. New Jersey Transit Rail Operations, Inc.,

Se Pe Pee BEE ob 65 Choon Swbee ces 3,4

San Diego Building Trades Council, Millmen’s

Union, Local 2020 v. Garmon, 359 U.S. 236

SPP Pann pe pM YC are 3,4,5,7

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Cited Authorities

Page

Shafii v. British Airways, PLC, 83 F.3d 566 (2d Cir.

| a re errr ee na 3

Taggart v. Trans World Airlines, Inc., 40 F.3d 269

CU Ge: SEE a hank dnd eee eases cee 3

Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30

hi Sp Pe Or ee ey es ree 5

Westbrook v. Sky Chefs, Inc., 35 F.3d 316 (7th Cir.

SORE 6 ancecindaksanen tiene ia 3

Wisconsin Department of Industry, Laber and

Human Relations v. Gould, Inc., 475 U.S. 282

SUNN sadn as oe aa utla bee e eetes sean 3,4

Statutes:

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TABLE OF APPENDICES

Page

Appendix A — Opinion Of The United States Court

Of Appeals For The Fifth Circuit Dated And Filed

DUOVERENOT Bi, SNUG <cecccedetewtusdesannese la

Appendix B — Memorandum Opinion And Order

Of The United States District Court For The

Northern District Of Texas, Dallas Division Dated,

Filed And Entered September 26, 2000 ........ 15a

Appendix C — Statutes Involved ............... 38a

}

The Petitioners respectfully request that this Court

issue a writ of certiorari to review the judgment entered

in this case by the United States Court of Appeals for the

Fifth Circuit.

OPINIONS BELOW

The District Court sustained Petitioners’ post-TRO

state law claim for tortious interference with contractual

relations during the period the temporary restraining order

was in effect. It dismissed Petitioners’ federal claims and

remaining state law claims with prejudice. Declining to

exercise supplemental jurisdiction, it also dismissed the

post-TRO claim for tortious interference with contractual

relations without prejudice. Jn re Allied Pilots Class Action

Litig., No. CIV.A.3:99-CV-0480P, 2000 WL 1405235

(N.D. Tex. Sept. 26, 2000). Appendix at 15a-37a.

Res~ -ndents appealed. The United States Court of Appeals

for the Fifth Circuit reversed the District Court, dismissing

the Petitioners’ TRO tortious interference claims with

prejudice. Kaufman vy. Allied Pilots Ass'n, 274 F.3d 197

(Sth Cir. 2001). Appendix at la-14a.

STATEMENT OF JURISDICTION

The opinion of the United States Court of Appeals

for the Fifth Circuit was entered on November 21, 2001.

This Court has jurisdiction under 28 U.S.C.A. § 1254(1)

(West 1993).

STATUTORY PROVISIONS INVOLVED

The relevant provisions of the Railway Labor Act,

45 U.S.C.A. §§ 15la and 184 (West 1986), are reprinted

in the Appendix at 46a to 47a. The relevant provisions of the

National Labor Relations Act, 29 U.S.C.A. §§ 157 and 158

(West 1998), are reprinted in the Appendix at 38a to 45a.

STATEMENT OF THE CASE

American Airlines (“American’’) acquired Reno Air but

decided not to apply the collective bargaining agreement it

had with its pilots to its new pilots from Reno Air. In protest,

the Allied Pilots Association (“APA”), the collective

bargaining agent for American’s pilots, led its members to

perform an illegal “sick-out” by falsely claiming they were

too sick to go to work. American canceled thousands of

scheduled flights nationwide. Because the sick-out violated

the Railway Labor Act (“RLA”), 45 U.S.C.A. § 151, et seq.,

(West 1986), the federal court entered a temporary restraining

order directing the pilots to return to work and ordering the

APA to stop encouraging the sick out. The APA intentionally

violated the restraining order by continuing to encourage the

sick out. During the restraining order period, the strike caused

American to cancel thousands of flights and disrupted travel

for tens of thousands of passengers.

Several passengers filed suit in various jurisdictions.

These suits, consolidated in the United States District Court

for the Northern District of Texas, comprise the action in

this case. Plaintiffs filed a consolidated amended class action

complaint seeking recovery under state and federal

law against the APA and its officers for both pre-TRO and

post-TRO conduct. The APA moved to dismiss, arguing that

Plaintiffs’ federal and state claims were preempted by the

RLA and should be dismissed with prejudice. The District

Court disagreed. The court concluded that Plaintiffs’ state

law claim for tortious interference with contractual relations

during the restraining order was not preempted by the

Railway Labor Act or the Airline Deregulation Act, declined

to exercise supplemental jurisdiction, and dismissed

that claim without prejudice. Jn re Allied Pilots Class

Action Litig., No. CIV.A.3:99-CV-0480P, 2000 WL 1405235

(N.D. Tex. Sept. 26, 2000).

The APA appealed. The Fifth Circuit reversed the

decision of the district court, dismissing Plaintiffs’ state law

claim. Kaufman v. Allied Pilots Ass'n, 274 F.3d 197 (Sth Cir.

2001). The Fifth Circuit reasoned that this Court’s decisions

in San Diego Building Trades Council, Millmen’s Union,

Local 2020 v. Garmon, 359 U.S. 236 (1959), and Wisconsin

Department of Industry, Labor and Human Relations v.

Gould, Inc., 475 U.S. 282 (1986) preempted the state

law claim.

The Fifth Circuit articulated a rule of universal

preemption under Garmon, focusing on the “nature of the

activities,” Allied Pilots, 274 F.3d at 200. However,

preemption has been denied in a number of labor related

disputes. Anderson v. American Airlines, Inc., 2 F.3d 590,

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

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

508 U.S. 950 (1993); Gay v. Carlson, 60 F.3d 83, 88 (2d Cir.

1995); Shafii v. British Airways, PLC, 83 F.3d 566, 570

(2d Cir. 1996); Hirras v. Nat’l R.R. Passenger Corp., 44 F.3d

278, 285 (Sth Cir. 1995); Westbrook v. Sky Chefs, Inc.,

35 F.3d 316, 317-318 (7th Cir. 1994); Taggart v. Trans World

Airlines, Inc., 40 F.3d 269, 275 (8th Cir. 1994); Maher v.

New Jersey Transit Rail Operations, Inc., 593 A.2d 750,

758 (N.J. 1991); Harris v. Hirsh, 654 N.E.2d 975, 978-979

(N.Y. 1995) (per curiam). The Fifth Circuit cited Gould for

the proposition that the scope of Garmon preemption

was broad and that claims made by entities not a party to a

labor agreement may be preempted. Allied Pilots, 274 F.3d

at 201-202. The court deemed activity before or after entry

of the restraining order to be the same for preemption analysis

because the conduct at issue was work stoppage. Jd. at 204.

The court further held that the state interests did not outweigh

the federal interests. Jd. at 203.

Finding preemption under Garmon, the Fifth Circuit did

not reach the issue of preemption under the ADA. Jd. at 204.

We do not address that issue in this petition.

Many cases at all levels hold that the federal government

has an interest in a national labor policy. That policy finds

protection in preemption under the various labor statutes,

i.e., Garmon, (NLRA); Lingle v. Norge Division of Magic

Chef, Inc., 486 U.S. 399 (1988) (LMRA); Hawaiian Airlines,

Inc. v. Norris, 512 U.S. 246 (1994) (RLA). These statutes

are not the same, do not define the same doctrines of

preemption, and do not define the same protected or

preempted conduct.

The RLA was created to regulate the railroad, and later,

the airline industries. It established mandatory arbitration for

“minor” disputes. Hawaiian Airlines, 512 U.S. at 252-253

(quoting Consolidated Rail Corp. (Conrail) v. Railway Labor

Executives’ Ass'n, 491 U.S. 299, 302 (1989)). “Minor”

disputes “gro[w] out of grievances or out of the interpretation

or application of agreements covering rates of pay, rules, or

working conditions” 45 U.S.C.A. § 15la (West 1986), and

relate to “controversies over the meaning of an

existing collective bargaining agreement in a particular fact

situation.” Hawaiian Airlines, 512 U.S. at 252-253 (quoting

Trainmen v. Chicago R. & LR. Co., 353 U.S. 30, 33 (1957)).

Minor disputes must be submitted to an “adjustment board,”

created by the carrier and the union.

The leading case for preemption under the NLRA is

Garmon, supra. In Garmon, this Court broadly defined claims

subject to preemption under the NLRA; but excluded from

preemption claims in which:

... the activity regulated was a merely peripheral

concern of the Labor Management Relations Act

... [o]r where the regulated conduct touched

interests so deeply rooted in local feeling and

responsibility that, in the absence of compelling

congressional direction, we could not infer

that Congress had deprived the States of the power

to act.

Garmon, 359 U.S. at 243-244 (citations omitted).

This Court recently defined RLA preemption in

Hawaiian Airlines:

A state-law cause of action is not pre-empted by

the RLA if it involves rights and obligations that

exist independent of [a collective bargaining

agreement].

Hawaiian Airlines, 512 U.S. at 260.

The court in Hawaiian Airlines reasoned that

the employee’s wrongful discharge claim involved “‘purely

factual questions’ about ... [the] employer’s conduct

and motives and [did] not ‘requir[e] a court to interpret

any term of a collective-bargaining agreement.’” Hawaiian

Airlines, 512 U.S. at 261-262 (quoting Lingle, 486 U.S. at

407). Because the rights at issue stood independent of the

collective bargaining agreement, the employee’s claim for

wrongful termination was not preempted. Hawaiian Airlines,

512 US. at 266.

REASONS FOR GRANTING THE WRIT

This petition for writ of certiorari should be granted.

The decision of the Fifth Circuit is against the weight of

authority of this Court, it involves circumstances that have

not been considered by any court prior to this, and it involves

an important question of policy.

The authorities provided by this Court for the definition

of preemption under the RLA require a search for a

connection between the dispute and a collective bargaining

agreement created under the RLA. No relationship exists

between Petitioner-passengers’ tortious interference claims

and the collective bargaining agreement between the APA

and American.

Even if the national labor policy defined by the RLA

required much broader protection under the doctrine of

preemption, the claims at issue here should not be preempted.

The strike, which violated a validly issued temporary

restraining order, was well beyond the outer boundaries of

any national labor policy defined by the RLA. As they are

exemplified by the RLA, those policies ended when the Court

entered the temporary restraining order. If any national policy

of any “interest so deeply rooted in local feeling and

responsibility” (Garmon) is involved in this case, it is a

national judicial policy, i.e., a temporary restraining order

validly entered by a valid court may not be flouted by a

disappointed litigant who chooses to exercise his judgment

in some manner other than the Court’s determination. When

the court entered the restraining order, the coverage of the

Railway Labor Act ceased and the concepts of the state and

federal judicial systems became dominant.

The Court should also review the decision of the Fifth

Circuit because it presents a question of significant national

importance that involves not one but two bodies of law.

First, it involves the protection of a uniform national labor

policy, the definition of the boundaries of preemption, and

the protection of the state law rights of the public. Second, it

involves an important consideration of the power of both

the state and federal judiciaries to stop or require specifically

identified conduct. Neither the national labor policy nor a

national judicial policy exemplified by both the federal and

state courts would be served by arbitrary decisions to ignore

judicial orders. A civil claim for damages by members of the

public deprived of dependable transportation (the most

important of the many reasons for passing the RLA) would

foster a national judicial policy and would not interfere with

a national labor policy. At the same time the deterrent effect

would be beneficial.

Last, the claim presented in this case, i.e., civil liability

to third persons for a strike violating a valid restraining order,

has never been adjudicated by any court, state or federal.

This conduct can be expected in the future, especially if the

unions have no deterrent from liability for civil damages.

CONCLUSION

For all the reasons stated above, the petition for writ of

certiorari should be granted.

Respectfully submitted,

THOMAS VERTICCHIO Russe H. BEATIE

PATZIK, FRANK Counsel of Record

& SamMoTny, Ltp. BEATIE AND OsBorN LLP

150 South Wacker Drive, 521 Fifth Avenue

Suite 900 New York, NY 10175

Chicago, IL 60606 (212) 888-9000

(312) 551-8300

JOHN L. MALESOVAS

PatrRICK E. CATALANO Davip H. Martin

Law Orrices OF Ma esovas & Martin, L.L.P.

PATRICK E. CATALANO 425 Austin Avenue, 10th Floor

781 Beach Street, Suite 333 P.O. Box 1709

San Francisco, CA 94109. Waco, TX 76703-1709

(415) 788-0207 (254) 753-1777

W.D. Masterson, III

D. ELIZABETH MASTERSON

KitGcore & KILGORE

700 McKinney Place

3131 McKinney Avenue

LB103

Dallas, TX 75204

(214) 969-9099

Attorneys for Petitioners

APPENDIX

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

DATED AND FILED NOVEMBER 21, 2001

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-11223

RICHARD KAUFMAN, ETC.; ET AL.

Plaintiffs

RICHARD KAUFMAN, DR., on behalf of himself and all

others similarly situated; JACK MARUT, on behalf of

himself and all others similarly situated; C. ANTHONY

WAINSRIGHT, on behalf of himself and all others similarly

situated; JEFFREY KRASNOFF, DR., on behalf of himself

and all others similarly situated

Plaintiffs-Appellees

versus

ALLIED PILOTS ASSOCIATION; ET AL.

Defendants

ALLIED PILOTS ASSOCIATION; RICHARD T. LAVOY;

BRIAN A. MAYHEW; DAVID ALDRICH; STANLEY

BISSELL; J.S. DITTY; ERNEST DRYER; DAVID

DUQUEMIN; MARK HUNNIBEL; JEFF MARCHAND;

STEVE ROACH; RANDY TROMMER

Defendants-Appellants

Appendix A

STEVEN CARLI, on behalf of himself and all others

similarly situated; SHON PREJEAN, on behalf of himself

and all others similarly situated

Plaintiffs-Appellees

versus

ALLIED PILOTS ASSOCIATION; RICHARD T. LAVOY;

BRIAN A. MAYHEW

Defendants- Appellants

CENTER FOR REHABILITATIVE MEDICINE

Plaintiff-Appellee

versus

ALLIED PILOTS ASSOCIATION

Defendant-Appellant

JIM CASHION, Individually and on behalf of the Plaintiff

Class; JOELLEN CASHION, Individually and on behalf of

the Plaintiff Class

Plaintiffs-Appellees ©

versus

ALLIED PILOTS ASSOCIATION; ET AL.

Defendants

ALLIED PILOTS ASSOCIATION; RICHARD T. LAVOY;

BRIAN A. MAYHEW; L.G FOSTER; ROBERT AMES;

NORMAN A. PATTERSON, JR.; DENNIS M. BRESLIN

Defendants-Appellants

Appendix A

MARK LEWIS, on behalf of himself and all others similarly

situated

Plaintiff-Appellee

versus

ALLIED PILOTS ASSOCIATION; RICHARD T. LAVOY;

BRIAN A. MAYHEW

Defendants-Appellants

NANCY GEIDEL; ET AL.

Plaintiffs

NANCY GEIDEL; RALPH A. MACDONALD; MARY C.

CASCINO; DAVE ROGERS; CAROLYN ROGERS

Plaintiffs-Appellees

versus

ALLIED PILOTS ASSOCIATION

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

Before HIGGINBOTHAM, BARKSDALE, and STEWART,

Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Appendix A

A union of airline pilots violated the order of a federal-

court by continuing its work slowdown. The union has since

paid substantial fines for violating the order and now faces

suits seeking money damages under state law for the stoppage

damages caused by the slowdown activity that violated the

court order. These claimants attempt to run their state claims

around Garmon preemption under an argument that state law

would not here interfere with the federal labor machinery

and its distinct remedial schemes for labor peace because

the conflict complained of violates a federal court order.

At the same time the state law claimants argue that they are

not seeking to supplement the federal order by their suits.

The district court accepted these arguments. We do not and

reverse. We are persuaded that the claims are preempted under

the Garmon doctrine and do not reach the question of

preemption under the Airline Deregulation Act.

The Allied Pilots Association is the exclusive bargaining

agent for the pilots of American Airlines, Inc. From February

6 through February 9, 1999 the APA staged a “sick-out” —

an organized false reporting of illness to effect a work

stoppage. On February 10, American sought and received a

temporary restraining order from the United States District

Court for the Northern District of Texas against the APA.

The TRO, among other things, required the APA to make

“all reasonable efforts” to end the sick-out. The APA

manifestly did not do so, and on February 12, the trial judge

heard American’s motion to hold the APA in contempt.

Ultimately, the district court awarded American $45 million

Appendix A

in compensatory damages,' a ruling which was upheld by

this Court.’

This is a class action brought against the APA to recover

economic damages claimed by over 300,000 displaced

passengers as a result of the sick-out. The p!aintiffs originally

asserted both federal and state claims,’ and the district court

dismissed all claims with prejudice except a state claim of

tortious interference with contract arising from post-TRO

conduct of the APA.‘ Finding that this claim was not

preempted by federal law, the district court dismissed the

claim without prejudice to its being refiled in state court.

The APA now appeals that decision.

1. Am. Airlines, Inc. v. Allied Pilots Ass'n, 53 F. Supp.2d 909,

913 (N.D. Tex. 1999).

2. Am. Airlines, Inc. v. Allied Pilots Ass'n, 228 F.3d 574, 586-

87 (Sth Cir. 2000).

3. The plaintiffs originally asserted claims under (1) the Railway

Labor Act; (2) the Racketeer Influenced and Corrupt Organizations

Act; (3) state common law claims of civil conspiracy, negligence per

se, and tortious interference with contract.

4. The district court dismissed all of the plaintiffs’ claims that

were predicated on pre-TRO conduct, including tortious interference

with contract, which was dismissed on Garmon preemption grounds.

The plaintiffs do not appeal the dismissal of their pre-TRO-based

claims and apparently concede that those claims are properly Garmon

preempted. Therefore, our only task is to decide whether the entering

of the TRO changes this result for their post-TRO tortious interference

claims.

Appendix A

We review questions of federal preemption de novo,

including Garmon preemption, which gets its name from the

Supreme Court’s ruling in San Diego Building Trades

Council v. Garmon.* In Garmon, an employer sued a union

in state court to recover damages from picketing that allegedly

violated the National Labor Relations Act. The Court held

that this state remedy was preempted by federal law because

the state courts must yield to the exclusive jurisdiction of

the NLRB — even when the NLRB has declined to take

jurisdiction.® Preemption is necessary because “the exercise

of state power over a particular area of activity threaten[s]

interference with the clearly indicated policy of industrial

relations... .”’ Concerned with “conflict in its broadest

sense” the Court eschewed a focus on the type of state

regulation or claim, and adopted an approach that looks to

the “nature of the activities which the States have sought to

regulate.”* Garmon has broad scope, and requires federal

5. 359 U.S. 236 (1959). Garmon preemption, first applied in

the context of the National Labor Relations Act, 29 U.S.C. § 151

et seq., has been extended to the RLA. Brotherhood of R.R. Trainmen

v. Jacksonville Terminal Co., 394 U.S. 369, 383 (1969).

6. Garmon, 359 U.S. at 238.

7. Id. at 243.

8. Id.

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Appendix A

preemption of state causes of action “if they attach liability

to conduct that is arguably protected ... or arguably

prohibited” by federal labor relations law.°

Garmon itself recognized two exceptions to preemption.

First, some conduct will “touch[ ] interests so deeply rooted

in local feeling and responsibility that . . . [the Court] could

not infer Congress had deprived the States of the power to

act.”'° The classic example of this exception, provided by

the Court in Garmon itself,'' is that of union activities

involving violence.'? The second exception is for matters only

of “peripheral concern” to federal labor relations law.'?

Neither of these exceptions apply here. The sick-out was non-

violent and certainly, irrespective of the TRO issue, cannot

be characterized as “peripheral” to labor relations law, since

it is itself a work stoppage, one which a district court found

to be prohibited by the RLA."

9. Mobile Mechanical Contractors Ass'n, Inc. v. Carlough, 664

F.2d 481, 487 (Sth Cir. 1981).

10. Garmon, 359 U.S. at 244.

11. Id. at 247 (“It is true that we have allowed the States to

grant compensation for the consequences. . . of conduct marked by

violence and imminent threats to the public order.”).

12. See, e.g., Youngdahl v. Rainfair, Inc., 355 U.S. 131, 139-

40 (1957) (upholding state court injunction against violent picketing).

13. Garmon, 359 U.S. at 243.

14. The RLA requires that “minor disputes” including those over

the meaning of a collective bargaining agreement provision on pay,

(Cont’d)

Appendix A

The Court has explicitly rejected a formalistic

implementation of Garmon, and invited a balancing of state

interests and federal regulatory interests in analyzing the

preemption question.'* The Court has thus refused to apply

Garmon preemption where “it is safe to presume that judicial

supervision [by the states] will not disserve the interests

promoted by the federal labor statutes.”'®

At the same time, Garmon preemption is not confined

to state claims made by parties to the labor relationship and

third-party claims may also be preempted, because they

similarly threaten the balance of labor- management

relations.'’ In Wisconsin Department of Industry, Labor &

(Cont'd)

rules, or working conditions, be submitted to binding arbitration in

the event that negotiations fail to produce a solution. 45 U.S.C.

§ 152. Federal district courts may (as here) enjoin strikes over minor

disputes in enforcing the RLA. Consolidated Rail Corp. v. Railway

Labor Executives Ass'n, 491 U.S. 299, 304 (1989).

15. Farmer v. United Brotherhood of Carpenters and Joiners

of Am., 430 U.S. 290, 297 (1977) (stating that a court must “determine

the scope of the general rule by examining the state interests in

regulating the conduct in question and the potential for interference

with the federal regulatory scheme.”).

16. Motor Coach Employees v. Lockridge, 403 U.S. 274, 297-98

(1971); see also Windfield v. Groen Div. Dover Corp., 890 F.2d 764,

766 (Sth Cir. 1989).

17. United Mine Workers v. Gibbs, 383 U.S. 715, 718-20 (1966)

(preempting damages remedy under state law for injury resulting from

peaceful portion of union protesting at mine that caused contractor

(Cont’d)

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Appendix A

Human Relations v. Gould, Inc.,'* the Court reaffirmed the

Garmon preemption principle as “prevent[ing] states not only

from setting forth standards of conduct inconsistent with the

substantive requirements of the NLRA, but also from

-providing their own regulatory or judicial remedies for

conduct prohibited or arguably prohibited by the Act.”!”

In Gould the Court struck down a Wisconsin statute that

prevented the state from doing business with companies that

had been judicially determined to have committed three

separate violations of the NLRA within a five year period.”

“That Wisconsin has chosen to use its spending power rather

than its police power in enacting the debarment statute does

not significantly lessen the inherent potential for conflict

when two separate remedies are brought to bear on the same

activity.”?! Garmon preemption must extend to all types of

state regulation that conflicts with federal labor relations law,

whether that is by state statute, or state judicial supervision,

whether in litigation between parties to the labor relationship

or between downstream injured persons and parties to the

labor relationship.

(Cont'd)

to lose employment and haulage contract); Jacksonville Terminal,

394 U.S. at 381-82 (holding that state court could not issue injunction

against peaceful strike sought by third-party railroad terminal operator

to avoid economic damages from shutdown of terminal).

18. 475 U.S. 282 (1986).

19. Jd. at 286 (emphasis added).

20. Jd. at 283.

21. Id. at 289.

10a

Appendix A

We have previously stated that Garmon preemption is

required when a state cause of action poses “a serious risk of

conflict with national labor policy.” The Court has directed

that we look not to the effect on labor-management relations

of allowing a particular claim to proceed, but rather to conflict

in the “broadest sense.””? Gould reminds us that adding state

remedies or penalties to the mix would be a “conflict”

necessitating preemption.”*

The plaintiffs take a narrow view of what constitutes

such a conflict and argue that the federal and state legal

regimes cannot be in conflict in this case, since a violation

of the TRO is, of course, a violation of federal law. If the

two regimes are not contradictory, they reason, there can be

no preemption. This argument cannot stand in light of Gould.

In Gould the plaintiff was being punished by the

state remedial scheme for its violations of federal labor law.

There was no contradiction between the two regimes, only a

supplementation of the federal remedial scheme by the state.

22. Carlough, 664 F.2d at 487.

23. Garmon, 359 U.S. at 242 (“The nature of the judicial process

precludes an ad hoc inquiry into the special problems of labor-

management relations involved in a particular set of occurrences in order

to ascertain the precise nature and degree of the federal-state conflict.”’).

24. Gould, 475 U.S. at 286 (quoting Garmon, 359 U.S. at 247

(“[T]o allow the State to grant a remedy . . . which has been withheld

from the National Labor Relations Board only accentuates the danger

of conflict... .”)).

lla

Appendix A

Therefore, the plaintiffs’ niggardly view of “conflict” itself

conflicts with the Supreme Court’s decision in Gould, and

must be rejected.

Garmon preemption does not depend on the merits of

an adjudication of the conduct’s legality under federal labor

law — both prohibited and protected conduct are shielded

from liability under state law. Plaintiffs argue, however, and

the district court agreed, that the TRO put the APA on notice

that its conduct was illegal, and therefore Garmon preemption

is not needed to vindicate the goals of federal labor law.

We must disagree — if conduct is clearly protected or

prohibited by federal labor law, to our eyes the case for

preemption is stronger.”> Consequentially, the issuance of the

TRO, indicating that the sick-out was likely to be found

illegal under the RLA, only enhances the case for preemption

of the state claim here. The concern of Garmon is not so

much with the righting of labor wrongs, the concern of the

labor relations laws themselves, as with the uniformity and

singularity of remedy provided by federal law. It is a national

labor policy — as this case makes vivid.

25. Gould, 475 U.S. at 283-84 (finding that Garmon required

preemption of statutory regime that punished firms that “found by

judicially enforced orders of the National Labor Relations Board to

have violated the NLRA in three separate cases within a 5 year

period.”); see also Sears, Roebuck, and Co. v. San Diego County

Dist. Council of Carpenters, 436 U.S. 180, 187 (1978) (distinguishing

those activities that are “arguably” protected or prohibited from those,

even more deserving of preemption, where “it is clear or may fairly

be assumed that the subject matter which the state court sought to

regulate ... is either prohibited or protected by the Federal Act.”

(internal quotation omitted)).

12a

Appendix A

The district court also found that attaching liability to

post-TRO conduct that violates state law will not

meaningfully disrupt labor-management relations — that is,

that it will not seriously harm the federal regulatory scheme

for labor relations. Garmon preemption requires the

balancing of state interests with federal regulatory interests.”°

However, irrespective of the state interest in protecting

private parties from interference with their freedom of

contract,”’ the activities here are so fundamental that Garmon

preemption must immunize them from state tort liability if

the RLA structure is to be preserved. While courts have

refused to apply Garmon preemption to state tort claims that

served substantial state interests and did not threaten

interference with the federal regulatory scheme,” this is not

26. See Sheet Metal Workers Local Union No. 54, AFL-CIO v.

E.F. Etie Sheet Metal Co., 1 F.3d 1464, 1470 (Sth Cir. 1993) (“That

inquiry requires not only looking to the factual bases of each

controversy, but also examining the interests protected by each claim

and the relief requested.”). —

27. Cf. Local 926, Int’l Union of Operating Engineers

AFL-CIO v. Jones, 460 U.S. 669, 689 (1983) (Rehnquist, J.,

dissenting) (“There can be no doubt that safeguarding the integrity

of contractual relations is an interest of paramount importance in an

economy such as ours.”).

28. See, e.g., Farmer, 430 U.S. at 304-05 (refusing to preempt

state claim of intentional infliction of emotional distress arising out

of discrimination in hiring hall practices because proof of state claim

required proof of “outrageous conduct” and the “potential for

interference is insufficient to counterbalance the legitimate and

substantial interest of the State in protecting its citizens”); Belknap

v. Hale, 463 U.S. 491, 510-12 (1983) (holding breach of contract

(Cont'd)

13a

Appendix A

our case. Slicing the claim into before and after the TRO

does not change the reality that the state law is being asked

to take hold of the same controversy as the federal labor laws.

Finally, we are not persuaded by the plaintiffs’ effort to

distinguish the pre-TRO conduct of the APA from its post-

TRO conduct.” “It is the conduct being regulated, not the

formal description of governing legal standards, that is the

proper focus of concern.”*° The existence of a TRO does not

transform conduct constituting a work-stoppage, and

therefore central to federal labor relations law, into conduct

falling outside of the ambit of Garmon. We note also that

any effort to characterize this suit as arising out of a violation

of the TRO encounters an additional blockade — the

(Cont'd)

aud misrepresentation claims by replacement workers against

employer not preempted even though conduct was arguably prohibited

by NLRA because the Board would focus on strikers’ rights, not

replacement workers’ rights); Windfield, 890 F.2d at 769- 70 (refusing

to preempt state claims arising out of employer’s personal guarantee

to former employee because they required only a “discrete, narrow

inquiry into the relationship between [the employee] and his former

employer.”).

29. The plaintiffs argued in the district court that their claims

based upon pre-TRO conduct were not Garmon preempted, but the

district court held that those claims were preempted, and the plaintiffs

do not appeal that determination.

30. Lockridge, 403 U.S. at 292 (emphasis added) (applying

Garmon preemption to a state law claim for breach of contract arising

out of a union’s discrimination against the plaintiff).

l4a

Appendix A

plaintiffs are not entitled to any remedy for violation of a

TRO to which they are not a party.*'

iil

The APA also argues that the plaintiffs’ claims are

preempted by the Airline Deregulation Act. Since we have

concluded that those claims are Garmon preempted, we need

not reach the question of ADA preemption.

_ Because the plaintiffs’ state law claims of tortious

interference with contract are Garmon preempted, we

REMAND this case to the district court and instruct that the

claims be DISMISSED with prejudice.

31. Northside Realty Associates, Inc. v. United States, 605 F.2d

1348, 1356-57 (5th Cir. 1979) (holding that compensatory damages

for nonparties could not be granted as part of Government’s remedy

in civil contempt proceeding against real estate corporation).

15a

APPENDIX B — MEMORANDUM OPINION AND

ORDER OF THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS

DIVISION DATED, FILED AND ENTERED

SEPTEMBER 26, 2000

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CIVIL ACTION NO.

3:99-CV-0480-P

IN RE ALLIED PILOTS CLASS ACTION LITIGATION

MEMORANDUM OPINION AND ORDER

Now before the Court for consideration are:

(1) The Findings and Recommendation of the United

States Magistrate Judge filed November 15, 1999;

(2) Plaintiff’s Response to Magistrate’s Ruling

Regarding Defendants’ Motion to Dismiss filed

December 6, 1999;

(3) APA Defendants’ Opposition to Plaintiffs’

Objections filed December 16, 1999;

(4) APA Defendants’ Objections to the Findings and

Recommendation of the United States Magistrate

Judge filed December 6, 1999;

(5) Plaintiffs’ Response to Allied Pilots Association

Defendants’ Objections to Magistrate’s

Recommendation filed January 7, 2000;

l6a

Appendix B

(6) APA Defendants’ Reply in Further Support of their

Objections filed January 25, 2000;

(7) Motion of the Texas AFL-CIO State Council for

Leave to File Amicus Brief in Support of

Objections of Allied Pilots Association to

Magistrate Judge’s Findings and Recommendation

filed December 6, 1999, and

(8) Motion of Air Line Pilots Association, International

for Leave to File Amicus Brief in Support of

Objections of Allied Pilots Association to

Magistrate Judge’s Findings and Recommendation

filed December 6, 1999.

After reviewing all of the above materials along with

the relevant law, the Court hereby GRANTS the Motions

for Leave to File Amicus Briefs,' SUSTAINS the APA

Defendants’ objection to the Recommendation of the

Magistrate as to preemption of the civil conspiracy claim by

the RLA, OVERRULES Defendants’ remaining objections,

OVERRULES the Plaintiffs’ Objections to the Recommendation

of the Magistrate, and MODIFIES the Recommendation of the

Magistrate Judge as specified herein.

1. Pursuant to L.R. 7.2(b), both the AFL-CIO and the Air Line

Pilots Association, International demonstrated sufficient interest in

the outcome of the litigation to warrant leave to file the amicus briefs.

17a

Appendix B

FACTS

The facts giving rise to this case have been thoroughly

discussed in the parties’ motions, the Magistrate’s

Recommendation, and in American Airlines, Inc. v. Allied Air

Pilots Assoc., 53 F.Supp.2d 909 (N.D.Tex.1999). Therefore,

the Court will give only a brief recitation of the facts.

Allied Pilots Association (“the APA” or “the

Defendants’’) is the exclusive bargaining agent for more than

9,000 pilots of American Airlines, Inc. (“American”).

(See Pls’ Am. Compl. f¥ 2.07, 4.02). In 1998, a dispute arose

over terms of the current collective bargaining agreement

(“the CBA”) between the APA and American.” See American

Airlines, 53 F.Supp.2d at 914. The dispute culminated in a

staged sick-out by the pilot members of the APA. /d. at 915.

The sick-out began on February 6, 1999, and continued until

February 9, 1999, resulting in the cancellation of more than

1600 American flights due to lack of crew. Jd. On February

10, 1999, American applied for and received a temporary

restraining order, (“the TRO”), from Judge Kendall of the

Northern District of Texas. The TRO prohibited the union or

2. Parties stipulated and agreed, and the court found, that the

dispute leading up to the sick-out and the TRO was a “minor dispute”

under the RLA. See Stipulanon filed by the parties on April 28, 1999,

cited with authority, American Airlines, 53 F. Supp.2d at 938 n. 177;

Findings of Fact and Conclusions of Law filed February 13, 1999, at

1, cited with authority, American Airlines, 53 F.Supp.2d at 938

n. 178. As discussed infra, because this was a minor dispute, the

RLA prohibited the APA from engaging in a job action or self-help.

See Consolidated Rail Corp. (“Conrail”) v. Railway Labor Executives’

Assoc., 491 U.S. 299, 303-04 (1989) (stating that the RLA permits

the resort to self-help only when a “major dispute” is at issue).

18a

Appendix B

its officers from “calling, permitting, instigating, authorizing,

encouraging, participating in, approving or continuing any

interference with American’s airline operations, including

but not limited to any strike, work stoppage, sick-out,

slowdown or other concerted refusals to fly over a minor

dispute or otherwise in violation of the RLA, 45 U.S.C.

§§ 151-188 (1988).” See American Airlines, 53 F.Supp.2d

at 918 (quoting language from the TRO).

The day after Judge Kendall ordered an end to the APA’s

staged sick-out, the number of canceled flights actually

increased, so that on February 11, 1999, American canceled

approximately 1200 flights. See American Airlines,

53 F.Supp.2d at 915. On February 12, 1999, Judge Kendall

held a hearing on American’s motion tc hold the APA in

contempt for violating the terms of the TRO. At the

conclusion of the hearing. Judge Kendall adjudged the

Defendants to be in civil contempt of court and ordered the

APA to place $10,000,000 into the Registry of the Court

pending resolution of the amount necessary to reimburse

American the amount of money lost because of the APA’s

contumacious acts. See American Airlines, 53 F.Supp.2d at

916. After reviewing additional evidence, the court issued

its findings of facts and conclusions of law, which resulted

in a civil contempt finding of more than $45,000,000

damages due to American by the APA. See American Airlines,

53 F.Supp.2d at 937.

3. The Plaintiffs allege that American canceled over 2,200

scheduled flights between February 10, 1999 and February 17, 1999

“as a direct, intended, and foreseeable result of the Defendants’ acts

in furtherance of the Sick-Out.” (Pls’ Am. Compl. § 4.21).

19a

Appendix B

The case currently before this Court is a class action to

recover economic damages suffered by passengers as a

result of the APA’s illegal sick-out. Plaintiffs represent

ticketed passengers whose flights were either delayed or

canceled as a result of the sick-out. They assert claims under:

(1) the Railway Labor Act (“RLA”), 45 U.S.C. §§ 151-188

(1986); (2) the Racketeer Influenced and Corrupt

Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968 (1984);

and (3) state common law theories of civil conspiracy,

negligence per se, and tortious interference with contract.

Defendants filed a motion to dismiss the action under Rule

12(b)(6) of the Federal Rules of Civil Procedure. The matter

was referred to United States Magistrate Judge Kaplan for

Findings and Recommendation, which was issued on

November 15, 1999. Magistrate Judge Kaplan recommended

a dismissal of Plaintiffs’ federal claims finding that the RLA

does not permit a private cause of action for monetary

damages and that Plaintiffs failed to satisfy the elements of

a RICO claim. (See Findings and Recommendation at 8, 10).

He also recommended dismissing Plaintiffs’ claim for

negligence per se after finding that claim requires an

interpretation of the CBA and is therefore preempted by the

RLA. (See Findings and Recommendation at 12-13).

In addressing the remaining state law claims of tortious

interference with contract and civil conspiracy, Magistrate

Kaplan divided the Plaintiffs into two sub-classes: those

whose claims rested on acts occurring prior to the issuance

of the TRO and those whose claims rested on acts occurring

after the issuance of the back to work order. After analyzing

the preemption arguments, he then found that the former

group’s claims should be preempted by the RLA while the -

20a

Appendix B

latter group’s claims should not be preempted. (See Findings

and Recommendation at 11-12). Finally, Magistrate Kaplan

recommended that this Court decline supplemental

jurisdiction over the surviving state law claims and dismiss

them without prejudice so that Plaintiffs could institute their

claims in state court. Jd. at 18. Both parties filed objections

to the Findings and Recommendations.

STANDARD

Pursuant to 28 U.S.C. § 636(b), this Court will make a

de novo determination of those specified proposed findings

and recommendations to which the parties make an objection.

However, the Court need not consider frivolous, conclusory

or general objections. See DFW Vending, Inc. v. Jefferson

- County, Tex., 991 F.Supp. 578, 583 (E.D.Tex.1998) (stating

that a blanket objection fails the specificity requirement of

Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636).

I. Defendants’ Objections

Defendants advance four separate arguments in objecting

to the Magistrate’s finding that some of Plaintiffs’ state law

claims should not be dismissed with prejudice: (1) that federal

labor law preempts and precludes state law remedies for damages

resulting from a peaceful labor dispute; (2) that federal labor

law preempts all of Plaintiffs’ state law claims because their

resolution depends upon an interpretation of the CBA;

(3) that federal law precludes actions by non-parties for

breach of a federal court order; and (4) that the Airline

Deregulation Act of 1978 (“ADA”), Pub.L. No. 95-504,

92 Stat. 1705 (codified as amended in scattered sections of

2la

Appendix B

49 U.S.C.), preempts all of the state law claims.‘ After

reviewing Defendants’ Objections, the amicus curiae briefs,

and Plaintiffs’ Response, the Court must agree with

Defendants except as to the tortious interference with contract

claim arising after the TRO was issued.

A. The RLA and the Nature of the Sick-Out

Congress enacted the Railway Labor Act of 1926 in

order “to promote stability in labor-management relations

by providing a comprehensive framework for resolving labor

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

252 (1994). In furtherance of that goal, the RLA provides a

mechanism of mandatory arbitration for the “prompt and

orderly settlement” of disputes. 45 U.S.C. § 151a. “Major”

disputes concern “rates of pay, rules or working conditions,”

id., and relate to “the formation of collective [bargaining]

agreements or efforts to secure them.” Consolidated Rail

Corp. (Conrail) v. Railway Labor Executives’ Assoc.,

491 U.S. 299, 302 (1989). “Minor” disputes “gro[w] out of

grievances or out of the interpretation or application of

agreements covering rates of pay, rules, or working conditions,”

45 U.S.C. § 151la, and thus involve “controversies over the

meaning of an existing collective bargaining agreement in a

particular fact situation.” Trainmen v. Chicago R. & LR. Co.,

353 US. 30, 33 (1957). “The distinguishing feature of [a minor

dispute] is that the dispute may be conclusively resolved by

interpreting the existing [CBA].” Conrail, 491 U.S. at 305.

4. The APA specifically cites 49 U.S.C. § 41713(b)(1) to support

the preemption theory, which reads as follows: “[A] State ... may

not enact or enforce a law, regulation, or provision having the force

and effect of law related to a price, route, or service of an air carrier

that may provide air transportation under this subpart.”

22a

Appendix B

The courts recognized parties could face risks when categorizing

disputes as major and minor. Therefore, the Supreme Court

established a rule that disputes shall be classified as “minor” if

a party’s actions can be “arguably justified” by the terms of an

existing CBA. Conrail, 491 U.S. at 306.

During the initial proceedings before Judge Kendall,

American and the APA stipulated that the dispute between

the parties was a minor dispute under the terms of the RLA.

See American Airlines, 53 F.Supp.2d at 917. Moreover, in

issuing the TRO, Judge Kendall ruled that the dispute was a

minor dispute. See id. at 917 n. 178. This determination was

very important when considering the issuance of the TRO

because under the RLA, unions retain no right to strike over

a minor dispute. See Conrail, 491 U.S. at 305. Because the

RLA prohibited the APA from striking over this minor

dispute, Judge Kendall found that the sick-out was an illegal

job action. See American Airlines, 53 F.Supp.2d at 917.

B. Lingle/Norris Preemption

The RLA preempts any state law claim where the

resolution of that claim depends upon the interpretation of

the CBA. See Hawaiian Airlines v. Norris, 512 U.S. 246,

262 (1994) (extending preemption of the LMRA as discussed

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

405-06 (1988) to the RLA). All disputes, however, do not

result in preemption under the RLA. “Purely factual

questions” about the conduct of an employer or employee

do not require the court to interpret a CBA and are therefore

not preempted by the RLA. See Hawaiian Airlines, 512 US.

at 261. Under this analysis, substantive protections provided

by the state, independent of the existence of a collective

23a

Appendix B

bargaining agreement, are not preempted by the RLA. See Hirras

v. National Railroad Passenger Corp., 44 F.3d 278, 282

(5th Cir. 1995). The Supreme Court provided three examples

of these types of claims that the RLA does not preempt:

(1) a state law prohibiting the termination of an employee for

reasons against public policy, such as whistleblowing; (2) a state ©

law requiring cabooses on all trains; and (3) a state law requiring

a certain number of employees to handle a certain type of railroad

equipment. See Hawaiian Airlines, 512 U.S. at 256-57.

The Supreme Court similarly provided an example of a state

claim which was preempted by the RLA. In that case, the

employee sued the employer for wrongful discharge, but the

only basis for claiming that he should not have been discharged

was his allegation that the action violated the terms of the CBA.

Id. at 257. Therefore, his claim did not exist independently of

the CBA and was preempted by the RLA. /d. Even if the

resolution of the CBA dispute and the state claim requires the

consideration of the same set of facts, the state law claim will

not be preempted so long as the claim is derived from a source

independent of the collective bargaining agreement. Hirras,

44 F.3d at 282.

The APA contends that the RLA preempts Plaintiffs’ state

law claims for tortious interference with contract and civil

conspiracy because the resolution of those claims requires

an interpretation of the CBA. The Court addresses each claim

in turn.

1. Tortious Interference with Contract

In order to make a claim for tortious interference, a plaintiff

must prove: (1) the existence of a contract subject to

interference; (2) willful and intentional interference with that

24a

Appendix B

contract; (3) the intentional interference was a proximate

cause of plaintiff’s damages; and (4) actual damage or loss

occurred. See Victoria Bank & Trust Co. v. Brady, 811 S.W.2d

931, 939 (Tex. 1991). As Magistrate Kaplan correctly stated,

none of the elements of tortious interference requires the

Court to interpret the CBA to resolve the claim. (See Findings

and Recommendation at 11). Ascertaining each element

demands only a purely factual inquiry. Specifically, the

element of “willful and intentional interference” can be

established without reference to the CBA.

Plaintiffs need not prove that the interference was illegal

or unjustified in order to establish the elements of their claim.

Yet conversely, Defendants assert that because they argue

that their job action was justified and legal, preemption must

result, even if the conflict is later judged to be a “minor

dispute.” Defendants contend that their proffered affirmative

defense of justification demands an interpretation of the CBA

to determine if the conflict was a “major dispute” that would

justify Defendant’s job action.’ This Court will assume

arguendo that if such interpretation of the CBA were necessary,

then Plaintiffs’ claim would be preempted.

Under Texas law, justification is a defense to a claim for

tortious interference with contract. See Victoria Bank, 811

5. In the Findings and Recommendation, Magistrate Kaplan did

not consider whether the Court would need to reference the CBA

in resolving the APA’s justification defense. (See Findings and

Recommendation at 11). However, this Court will assume without

deciding that “[t]he claim is also preempted if [the defendant] seeks

to defend its conduct on the ground that the conduct was justified

by the CBA.” Polich v. Burlington N., Inc., 942 F.2d 1467, 1470

(9th Cir. 1991).

25a

Appendix B

S.W.2d at 939. Justification may be shown if Defendants

acted so as to protect or further their own legal rights or to

protect a colorable legal right that equals or exceeds the rights

of Plaintiffs. See Bennett v. Computer Assoc. Intern., Inc.,

932 S.W.2d 197, 202 (Tex. App. — Amarillo 1996, writ

denied) (citing Texas Beef Cattle Co. v. Green, 921 S.W.2d

203, 210 (Tex. 1996)). Defendants contend that “their actions

were indeed justified because the dispute with American was

arguably a ‘major’ dispute under the RLA involving

American’s unilateral abrogation or alteration of the existing

collective bargaining agreement.” (APA Defendants’

Objections at 14).

Defendants’ argument fails with respect to post-TRO

conduct because the issuance of the TRO precluded any

justification defense premised upon the CBA. It is irrelevant

to inquire whether Judge Kendall correctly interpreted the

CBA in finding the conflict to constitute a “minor dispute,”

whether the TRO was therefore rightly or wrongly issued, or

whether or not the sick-out was justified under the CBA.

As the Plaintiffs argued, “[a]fter Judge Kendall’s Back-To-

Work Order, a judicial decree that the APA had no legal

right to engage in or solicit the sick out, nothing in the CBA

could even arguably justify the Defendants’ conduct in

maintaining the sick-out.” (Pls’ Response to APA’s Obj. at 14).

Judge Kendall’s findings need not be consulted by this Court;

once Judge Kendall issued the TRO, his order trumped any

possible justification defense based upon the rights conferred

by the CBA. Ordinarily, parties should always obey the

court’s orders, regardless of whether they think the orders

are correct. See Maness v. Meyers, 419 U.S. 449, 458 (1975).

The only appropriate remedy is to appeal the order, and absent

26a

Appendix B

a stay, the order must be complied with during appeal. /d.

The terms of the CBA, a contract between labor and

management, offer no legal justification for violating a court

order under any interpretation. Since Defendants thus had

no possible legal justification under the CBA, there is no

need to interpret it.° Therefore, because the elements of

tortious interference with contract as well as the affirmative

defense thus involve purely factual inquiries not requiring

reference to the CBA, the claim is not preempted by the RLA.

See Hawaiian Airlines, 512 U.S. at 261.

It is important to note that Plaintiffs’ claim does not rely

upon establishing a violation of the TRO. As the discussion

of the civil conspiracy claim makes clear, infra, third parties

to a TRO may not base claims upon the violation of the TRO.

Here, Plaintiffs can establish all of the elements of tortious

interference regardless of the existence of the TRO. The TRO

merely negates a possible affirmative defense that Defendants .

might wish to raise to justify their conduct. As Plaintiffs state:

as part of their common law action for tortious

interference with contract, Plaintiffs merely

premise their claims on Allied Pilots’ conduct

which just happens to have already been found

contemptuous by Judge Kendall. Plaintiffs

properly plead the undeniable fact that such

conduct was specifically prohibited by Judge

Kendall’s Back-To- Work Order. Plaintiffs do not

6. The same logic would nullify a justification defense for civil

conspiracy based upon the CBA. The Court does not reach this

issue because the civil conspiracy claim is dismissed on other

grounds, infra.

27a

Appendix B

seek liability against the APA Defendants merely

because Judge Kendall prohibited their conduct,

but rather, Plaintiffs point to Allied Pilots’

violation of the Back-To-Work Order as evidence,

arguably conclusive, of the lack of justification

for Allied Pilots’ tortious conduct.

(Pls’ Response to APA’s Obj. at 14-15). Indeed, as for

justification based upon the CBA, the existence of the TRO

conclusively precludes such a defense.

2. Civil Conspiracy

A civil conspiracy is “a combination of two or more persons

to accomplish an unlawful purpose or to accomplish a lawful

purpose by unlawful means.” Triplex Communications, Inc. v.

Riley, 900 S.W.2d 716, 719 (Tex. 1995). Unlike the tortious

interference claim, Plaintiffs cannot establish the elements of

their civil conspiracy claim without relying upon the TRO or

the CBA. Plaintiffs claim therefore fails.

By violating a court order, even one that is later set aside

as incorrect, a party risks being held in civil or criminal

contempt. See Maness v. Meyers, 419 U.S. 449, 458 (1975).

Holding the offending party in either civil or criminal

contempt is the remedy for the violation of a TRO. /d. The

TRO may only be enforced by parties to the suit from which

the order emanated. See Northside Realty Associates, Inc. v.

United States, 605 F.2d 1348, 1356-57 (5th Cir. 1979).

A non-party to the action may not receive civil contempt

damages, nor may an individual institute an independent

claim for civil contempt. See D. Patrick, Inc. v. Ford Motor

28a

Appendix B

Co., 8 F.3d 455, 459 (7th Cir. 1993). Furthermore, a TRO is

not a final judgment for the purposes of collateral estoppel

or res judicata. See Texas v. Wellington Resources Corp.,

706 F.2d 533, 537 (Sth Cir. 1983) (“Hearings on these

nonpermanent injunctions do not serve the same purpose as

a hearing on the merits; they only preserve the status quo

awaiting resolution of the merits.”)

The passengers who have brought suit could not have

brought an action to enforce the back-to-work order. Nor can

the passengers claim that the TRO conclusively proves that

the APA’s actions were illegal. Accordingly, Plaintiffs cannot

rely upon the issuance of the TRO alone to demonstrate

unlawfulness necessary to prove the civil conspiracy claim.

Plaintiffs seem to recognize this limitation by arguing that

their claims are not prefaced upon the violation of the TRO

but that it merely demonstrates the wrongfulness of the APA’s

conduct. But Plaintiffs demonstrate no basis for claiming the

illegality of the conduct other than the violation of the TRO,

as any claim based upon the CBA would be preempted by

the RLA.’ Since Plaintiffs have failed to satisfy the elements

of the civil conspiracy claim, the claim is dismissed.

C. Garmon/Terminal Preemption

With all of the same concerns in mind for a single, federal

regulatory scheme for labor law, the Supreme Court

7. Plaintiffs’ status as total strangers to the labor/management

relationship and the relevant CBA does not require any different

outcome. In fact, the NLRA has previously been held to preempt the

claims of parties who were similarly situated as third parties to the

CBA. See Rehmar v. Smith, 555 F.2d 1362, 1366 (Sth Cir. 1977).

29a

Appendix B

developed another form of preemption referred to as Garmon

preemption.’ See San Diego Building Trades Council v.

Garmon, 359 U.S. 236 (1959). The Garmon Court indicated

a concern “with the potential conflict of two law-enforcing

authorities, with the disharmonies inherent in two systems,

one federal the other state, of inconsistent standards of

substantive law and differing remedial schemes.” Garmon,

359 U.S. at 242. The Supreme Court identified as the common

theme of its cases its “regard to the fact that Congress has

entrusted administration of the labor policy for the Nation to

a centralized administrative agency, armed with its own

procedures, and equipped with its specialized knowledge and

cumulative experience.” Jd. at 242. Due to its concern with

conflict “in the broadest sense,” the judicial system began to

focus on the nature of the activities which the states sought

to regulate rather than the method of regulation imposed by

the states. Jd. at 243. “When the exercise of state power over

a particular area of activity threatened interference with the

clearly indicated policy of industrial relations, it has been

judicially necessary to preclude the States from acting.” Jd.

The Supreme Court went on to state that it does not matter

“whether the States have acted through laws of general

application rather than laws specifically directed towards the

governance of industrial relations. Regardless of the mode

adopted, to allow the States to control the conduct which is

the subject of national regulation would create potential

frustration of national purpose.” Jd. at 244. This does not

remove all power from the states to regulate labor activities

8. Although Garmon addressed claims preempted by the NLRA,

the Court has regularly referred to the NLRA for assistance in

construing the RLA. See Brotherhood of Railroad Trainmen v.

Jacksonville Terminal Co., 394 U.S. 369, 383 (1969).

30a

Appendix B

in some aspects. The Court clearly delineated two areas that

would remain within the states’ power of control: regulation of

activity that is a merely peripheral concern of federal labor law

and regulations where the activity touches an interest deeply

rooted in local feeling and responsibility. /d. at 243-244.

While Garmon began as a case that focused on the

primary jurisdiction of the National Labor Relations Board,

see Jacksonville Terminal, 394 U.S. at 384 n. 19, it has come

to stand for a more sweeping proposition. According to the

Fifth Circuit, “[t]he fundamental precept of Garmon is that

liability under a state cause of action is preempted whenever

it poses a serious risk of conflict with national labor policy.”

Mobile Mechanical Contractors Ass'n, Inc. v. Carlough,

664 F.2d 481, 487 (Sth Cir. 1981). In Carlough, the Fifth

Circuit preempted the plaintiff’s state law claims for damages

resulting from an unlawful, but peaceful, strike. The Court

reasoned, “[t}he basis of the association’s state claims — and

the activity from which its alleged damages flow — is not the

union’s demand . . . but the strike in support of that demand.”

Carlough, 664 F.2d at 487. In short, the focus has shifted from

the labor board’s arguable jurisdiction over the subject matter

to a preference for a unified area of labor law that is relatively

immune from external pressures exerted by the state.

In this same trend, the Supreme Court later ruled that

states cannot make laws refusing to contract with employers

who regularly violate labor laws because such a prohibition

would “interfere with Congress’ ‘integrated scheme of

regulation’ by adding a remedy to those already prescribed

by the NLRA.” Wisconsin Department of Industry v. Gould,

475 U.S. 282, 287 (1986). According to the Supreme Court,

3la

Appendix B

it does not “matter that a supplemental remedy is different

in kind from those that may be ordered by the Board, for

“judicial concern has necessarily focused on the nature of ~

the activities which the States have sought to regulate, rather

than on the method of regulation adopted.” /d. at 287 (internal

quotes omitted). The Fifth Circuit similarly recognized this

principle in Carlough in stating that “to permit the association

to supplement the [NLRB’s] remedy with additional state

damages runs counter to the teachings of Garmon.” Carlough,

664 F.2d at 488 (finding that an award of damages can interfere

with national policy just as preventative regulation can).

1. Pre-TRO Conduct

In the matter at hand, allowing plaintiffs’ state law claims

premised on pre-TRO conduct to proceed would directly and

substantially interfere with federal regulation of the APA’s

strike. The relationship between management and labor exists

in a delicate balance. “The obligation to pay compensation

can be, indeed is designed to be, a potent method of governing

conduct and controlling policy.” Garmon, 359 U.S. at 247.

Allowing the state law tort claims to proceed under these

circumstances, regardless of the legality of the strike, would

place an incredible advantage in the hands of management.

This principle has been regularly noted in cases involving

strikes by public employees. In one case, a New York Court

of Appeals wrote, “[a private action for damages] would be

a powerful deterrent to public employee strikes, but it would

also, as the claims for damages in the Burnes Jackson

. complaint, impose a crushing burden on the unions and each

of the employees participating in the strike.” Burns Jackson

Miller Simms & Spitzer v. Linder, 59 N.Y.2d 314, 329

(N.Y. Ct. App. 1983).

32a

Appendix B

Other cases have also noted the power associated

with awarding damages for illegal strikes by a union.

One court expressed reluctance to allow employers and

unions “to use the club of damages against each other.”

CSX Transportation Inc. v. Marquar, 980 F.2d 359, 379

(6th Cir. 1992). The potential advantage to management

prompted the Fifth Circuit to explicitly refuse an employer’s

claim for damages against a union for losses incurred as the

result of an illegal strike. See Burlington Northern R.R. Co.

v. Brotherhood of Maintenance of Way Employees, 961 F.2d

86, 89 (Sth Cir. 1992); Louisville and Nashville R.R. Co. v.

Brown, 252 F.2d 149, 155 (Sth Cir. 1958). The Fourth Circuit

recently came to the same conclusion and refused an-

employer’s claim for damages resulting from a union’s illegal

strike over a minor dispute. See Norfolk Southern Railway v.

Brotherhood of Locomotive Engineers, 164 LRRM 2641

(4th Cir. 2000).

Regardless of whether the damages are sought by the

employer or a third party, the imbalance to the bargaining

process would be just as profound. As Magistrate Kaplan

recognized, the award of damages for damages incurred in

the “collective bargaining process would, in effect, give the

employer a weapon with which to keep the unions and their

agents “in line.” The risk is no less when the party seeking

damages is a stranger to the collective bargaining process,

such as airline customers affected by an illegal work

stoppage. Management would still be able to use the threat

of large damage awards in potential class actions such as

this one to keep the unions and their agents ‘in line.’ ”

(Findings and Recommendation at 7) (quoting National

Airlines, Inc. v. Airline Pilots Association International,

431 F.Supp. 53, 54 (S.D.Fla.1976)).

33a

Appendix B

All of the above cases dealt with claims brought under

the RLA. However, that is not dispositive of the issue

currently before the Court. Whether the threat of damages

comes under the RLA or common law, the result would be

the same. The best way to produce more unified results and

allow the parties to focus their attention on resolving the

labor dispute is to allow the federal courts and federal law

sole jurisdiction to implement any remedy.

In looking to the nature of the union’s actions, one must

acknowledge that the sick-out was the APA’s response to the

dispute with American. Regardless of the legality of the

strike, the union’s actions and the ability to strike lie at the

heart of labor law. In most cases, strikes by participants of

major industrial companies will affect thousands and

thousands of people who are not a party to the CBA. Due to

the far-reaching consequences of any action taken by these

players, such strikes as the APA’s cannot be considered

peripheral to the concerns of labor law. Moreover, there is

no evidence that the strike used any threats or violence or

concerned any other matter that is grounded in local control

SO as to avoid preemption.

2. Post-TRO Conduct

The Court is mindful that the same factors justifying

preemption of pre-TRO conduct could arguably justify

preemption of post-TRO conduct. Nevertheless, this Court

finds that permitting liability to third parties for conduct

occurring after issuance of a TRO will not meaningfully

disrupt the balance between labor and management.

34a

Appendix B

As discussed above, a TRO must be obeyed until set

aside. Maness v. Meyers, 419 U.S. 449, 458 (1975). Thus,

neither a union nor an employer may hz've any reasonable

expectation or good-faith belief that its conduct in violation

of the TRO is legal, let alone legally protected by federal

labor policy. Those who violate a court order do so at their

peril, and merit no federal license to continue engaging in

conduct that violates the rights of third parties even after a

judge has forbidden them to do so. Further, there is no

ambiguity in a rule refusing to exempt post-TRO conduct

from valid state laws not implicating a CBA. The clear bright

line is crossed only when a party continues to act contrary to

state law after a court has forbidden such conduct by issuing

a restraining order or injunction. There can be no confusion

that such conduct no longer enjoys special legal protection.

The Court notes that the APA did, in fact, pay for the

consequences of violating the court order. As a result of the

sick-out, Judge Kendall imposed a civil contempt fine of

$45,000,000 against the APA. Yet this award does nothing

to compensate third parties damaged by illegal conduct. Third

parties are not foreclosed by federal labor policy from seeking

compensation for damage they suffered when such claims

will not disrupt that federal policy. Indeed, national labor

policy is not disrupted by permitting post-TRO conduct to

be subject to state law; there is no “potential frustration of

national purpose.” Cf. Garmon, 359 U.S. at 242. Parties do

not forfeit any rights granted under a CBA or subject to

federal management. They merely are not permitted to hide

behind the shield of federal preemption doctrine for conduct

in violation of state law. All conduct prior to a court order

continues to be subject to federal preemption, as does all

35a

Appendix B

post-TRO conduct that implicates a CBA. Employers gain

no new weapon in their arsenal with which to bludgeon

potential strikers; unions will not be more hesitant to strike,

for they incur potential liability to third parties only for

conduct that takes place after a court order is issued.

Note again that enforcing the issuance of a TRO as the

bright line between special legal protection and ordinary

subjection to valid laws does not permit claims to be based

upon the TRO itself. The TRO is instead a boundary; it marks

the point at which the interest of national labor policy no

longer outweighs the peculiarly local concerns of the courts

enforcing state laws. Cf, Garmon, 359 U.S. at 243-244.

D. ADA Preemption

Defendants argue that Plaintiffs’ common law causes of

action are preempted by the Airline Deregulation Act of 1978

(“ADA”), Pub.L. No. 95-504, 92 Stat. 1705 (codified as

amended in various sections of Title 49). This Court adopts

the finding and recommendation of the magistrate to find no

ADA preemption of Plaintiffs’ claims.

E. Liability for Peaceful Labor Strike

This Court adopts the finding and recommendation of

Magistrate Judge Kaplan to reject any defense that no

common law claims can arise from a peaceful labor strike as

inapplicable to this case.

36a

Appendix B

F. Disposition of Remaining State Law Claim

This Court adopts the findings and recommendation of

the magistrate to dismiss the surviving state law claim

without prejudice. The interests of clarity, judicial economy,

and the appropriateness of addressing state law claims in state

courts all counsel against this Court attempting to disentangle

surviving and dismissed claims, surviving and dismissed

plaintiffs, and then remanding them to their separate

originating state courts. This Court chooses not to exercise

its supplemental jurisdiction in this case.

II. Plaintiffs’ Objections

Plaintiffs made three objections to the Findings and

Recommendation. The first two object to Magistrate Kaplan’s

recommendation to dismiss rather than remand Plaintiffs’

surviving state law causes of action. Plaintiffs’ objections

are OVERRULED. The Court’s ruling makes clear that the

state law claim remaining after this Court’s previous rulings

is dismissed without prejudice.

Plaintiffs’ third objection is titled a conditional objection

and argues that in the event the Court sustains the Defendants’

objections, Plaintiffs object to the portions of the Findings

and Recommendation that dismiss Plaintiffs’ claims under

the RLA, RICO, and the claims against the individual

Defendants. Plaintiffs give no specific reason for their

objection and merely incorporate by reference the legal

arguments set forth in their briefs and response to Defendants’

Motion to Dismiss. This objection is precisely the type of

blanket objection that the Court need not consider. See DFW

37a

Appendix B

Vending, Inc. v. Jefferson County, Tex., 991 F.Supp. 578, 583

(E.D. Tex.1998). Accordingly, the Court OVERRULES

Plaintiffs’ Objections to the Findings and Recommendation.

DATED: September 26, 2000

s/ Jorge A. Solis

Jorge A. Solis

UNITED STATES DISTRICT

COURT JUDGE

38a

APPENDIX C — STATUTES INVOLVED

29 U.S.C.A. § 157. Right of employees as to organization,

collective bargaining, etc.

Employees shall have the right to self-

organization, to form, join, or assist labor

organizations, to bargain collectively through

representatives of their own choosing, and to

engage in other concerted activities for the

purpose of collective bargaining or other mutual

aid or protection, and shall also have the right to

refrain from any or all of such activities except to

the extent that such right may be affected by an

agreement requir:ng membership in a labor

organization as a condition of employment as

authorized in section 158(a)(3) of this title.

29 U.S.C.A. § 158. Unfair labor practices

(a) Unfair labor practices by employer

It shall be an unfair labor practice for an employer —

(1) to interfere with, restrain, or coerce

employees in the exercise of the rights guaranteed

in section 157 of this title;

(2) to dominate or interfere with the

formation or administration of any labor

organization or contribute financial or other

support to it: Provided, That subject to rules and

regulations made and published by the Board

pursuant to section 156 of this title, an employer

39a

Appendix C

shall not be prohibited from permitting employees

to confer with him during working hours without

loss of time or pay;

(3) by discrimination in regard to hire or

tenure of employment or any term or condition of

employment to encourage or discourage

membership in any labor organization: Provided,

That nothing in this subchapter, or in any other

statute of the United States, shall preclude an

employer from making an agreement with a labor

organization (not established, maintained, or

assisted by any action defined in this subsection

as an unfair labor practice) to require as a

condition of employment membership therein on

or after the thirtieth day following the beginning

of such employment or the effective date of such

agreement, whichever is the later, (i) if such labor

organization is the representative of the employees

as provided in section 159(a) of this title, in the

appropriate collective-bargaining unit covered by

such agreement when made, and (ii) unless

following an election held as provided in section

159(e) of this title within one year preceding the

effective date of such agreement, the Board shall

have certified that at least a majority of the

employees eligible to vote in such election have

voted to rescind the authority of such labor

organization to make such an agreement: Provided

further, That no employer shall justify any

discrimination against an employee for

nonmembership in a labor organization (A) if he

40a

Appendix C

has reasonable grounds for believing that such

membership was not available to the employee

on the same terms and conditions generally

applicable to other members, or (B) if he has

reasonable grounds for believing that membership

was denied or terminated for reasons other than

the failure of the employee to tender the periodic

dues and the initiation fees uniformly required as

a condition of acquiring or retaining membership;

(4) to discharge or otherwise discriminate

against an employee because he has filed charges

or given testimony under this subchapter;

(5) to refuse to bargain collectively with the

representatives of his employees, subject to the

provisions of section 159(a) of this title.

(b) Unfair labor practices by labor organization

It shall be an unfair labor practice for a labor

organization or its agents —

(1) to restrain or coerce (A) employees in the

exercise of the rights guaranteed in section 157

of this title: Provided, That this paragraph shall

not impair the right of a labor organization to

prescribe its own rules with respect to the

acquisition or retention of membership therein;

or (B) an employer in the selection of his

representatives for the purposes of collective

bargaining or the adjustment of grievances;

4ia

Appendix C

(2) to cause or attempt to cause an employer

to discriminate against an employee in violation

of subsection (a)(3) of this section or to

discriminate against an employee with respect to

whom membership in such organization has been

denied or terminated on some ground other than

his failure to tender the periodic dues and the

initiation fees uniformly required as a condition

of acquiring or retaining membership;

(3) to refuse to bargain collectively with an

employer, provided it is the representative of his

employees subject to the provisions of section

159(a) of this title;

(4) (i) to engage in, or to induce or encourage

any individual employed by any person engaged

in commerce or in an industry affecting commerce

to engage in, a strike or a refusal in the course of

his employment to use, manufacture, process,

transport, or otherwise handle-or work on any

goods, articles, materials, or commodities or to

perform any services; or (ii) to threaten, coerce,

or restrain any person engaged in commerce or in

an industry affecting commerce, where in either

case an object thereof is —

(A) forcing or requiring any employer or

self-employed person to join any labor or

employer organization or to enter into any

agreement which is prohibited by subsection (e)

of this section;

42a

Appendix C

(B) forcing or requiring any person to cease

using, selling, handling, transporting, or otherwise

dealing in the products of any other producer,

processor, or manufacturer, or to cease doing

business with any other person, or forcing or

requiring any other employer to recognize or

bargain with a labor organization as the

representative of his employees unless such labor

organization has been certified as the

representative of such employees under the

provisions of section 159 of this title: Provided,

That nothing contained in this clause (B) shall be

construed to make unlawful, where not otherwise

unlawful, any primary strike or primary picketing;

recognize or bargain with a particular labor

organization as the representative of his

employees if another labor organization has been

certified as the representative of such employees

under the provisions of section 159 of this title;

(D) forcing or requiring any employer to

assign particular work to employees in a particular

labor organization or in a particular trade, craft,

or class rather than to employees in another labor

organization or in another trade, craft, or class,

unless such employer is failing to conform to an

order or certification of the Board determining the

bargaining representative for employees performing

such work:

43a

Appendix C

Provided, That nothing contained in this subsection

shall be construed to make unlawful a refusal by

any person to enter upon the premises of any

employer (other than his own employer), if the

employees of such employer are engaged in a

strike ratified or approved by a representative of

such employees whom such employer is required

to recognize under this subchapter: Provided

further, That for the purposes of this paragraph

(4) only, nothing contained in such paragraph shall

be construed to prohibit publicity, other than

picketing, for the purpose of truthfully advising

the public, including consumers and members of

a labor organization, that a product or products

are produced by an employer with whom the labor

organization has a primary dispute and are

distributed by another employer, as long as such

individual employed by any person other than the

primary employer in the course of his employment

to refuse to pick up, deliver, or transport any

goods, or not to perform any services, at the

establishment of the employer engaged in such

distribution; ‘

(5) to require of employees covered by an

agreement authorized under subsection (a)(3) of

this section the payment, as a condition precedent

to becoming a member of such organization, of a

fee in an amount which the Board finds excessive

or discriminatory under all the circumstances.

In making such a finding, the Board shall consider,

44a

Appendix C

among other relevant factors, the practices and

customs of labor organizations in the particular

industry, and the wages currently paid to the

employees affecied;

(6) to cause or attempt to cause an employer

to pay or deliver or agree to pay or deliver any

money or other thing of value, in the nature of an

exaction, for services which are not performed or

not to be performed; and

(7) to picket or cause to be picketed, or

threaten to picket or cause to be picketed, any

employer where an object thereof is forcing or

requiring an employer to recognize or bargain with

a labor organization as the representative of his

employees, or forcing or requiring the employees

of an employer to accept or select such labor

organization as their collective bargaining

representative, unless such labor organization is

currently certified as the representative of such

employees:

(A) where the employer has lawfully

recognized in accordance with this subchapter any

other labor organization and a question concerning

representation may not appropriately be raised

under section 159(c) of this title,

(B) where within the preceding twelve

months a valid election under section 159(c) of

this title has been conducted, or

45a

Appendix C

without a petition under section 159(c) of this title

being filed within a reasonable period of time not

to exceed thirty days from the commencement of

such picketing: Provided, That when such a

petition has been filed the Board shall forthwith,

without regard to the provisions of section

159(c)(1) of this title or the absence of a showing

of a substantial interest on the part of the labor

organization, direct an election in such unit as the

Board finds to be appropriate and shall certify the

results thereof: Provided further, That nothing in

this subparagraph (C) shall be construed to

prohibit any picketing or other publicity for the

purpose of truthfully advising the public

(including consumers) that an employer does not

employ members of, or have a contract with, a

labor organization, unless an effect of such

picketing is to induce any individual employed

by any other person in the course of his

employment, not to pick up, deliver or transport

any goods or not to perform any services.

Nothing in this paragraph (7) shall be

construed to permit any act which would

otherwise be an unfair labor practice under this

subsection.

46a

Appendix C

45 U.S.C.A. § 15la. General purposes

The purposes of the chapter are: (1) To avoid

any interruption to commerce or to the operation

of any carrier engaged therein; (2) to forbid any

limitation upon freedom of association among

employees or any denial, as a condition of

employment or otherwise, of the right of employees

to join a labor organization; (3) to provide for the

complete independance of carriers and of employees

in the matter of self-organization to carry out the

purposes of this chapter; (4) to provide for the

prompt and orderly settlement of all disputes

concerning rates of pay, rules, or working

conditions; (5) to provide for the prompt and

orderly settlement of all disputes growing out of

grievances or out of the interpretation or

application of agreements covering rates of pay,

rules, or working conditions.

45 U.S.C.A. § 184. System, group, or regional boards

of adjustment

The disputes between an employee or group of

employees and a carrier or carriers by air growing

out of grievances, or out of the interpretation or

application of agreements concerning rates of pay,

rules, or working conditions, including cases

pending and unadjusted on April 10, 1936, before

the National Labor Relations Board, shall be

handled in the usual manner up to and including

the chief operating officer of the carrier designated

47a

Appendix C

to handle such disputes; but, failing to reach an

adjustment in this manner, the disputes may be

referred by petition of the parties or by either party

to an appropriate adjustment board, as hereinafter

provided, with a full statement of the facts and

supporting data bearing upon the disputes.

It shall be the duty of every carrier and of its

employees, acting through their representatives,

selected in accordance with the provisions of this

subchapter, to establish a board of adjustment of

jurisdiction not exceeding the jurisdiction which

may be lawfully exercised by system, group, or

regional boards of adjustment, under the authority

of section 153 of this title.

Such boards of adjustment may be established

by agreement between employees and carriers

either on any individual carrier, or system, or

group of carriers by air and any class or classes of

its or their employees; or pending the

establishment of a permanent National Board of

Adjustment as hereinafter provided. Nothing in

this chapter shall prevent said carriers by air, or

any class or classes of their employees, both acting

through their representatives -selected in

accordance with provisions of this subchapter,

from mutually agreeing to the establishment of a

National Board of Adjustment of temporary

duration and of similarly limited jurisdiction.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.