# Opposition Brief — Sowers v. Federal Express Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0741%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1992 - **Citation:** 506 U.S. 822 ## Text ~~ eternal No. 91-1919 IN THE Supreme Court of the Gnited States OCTOBER TERM, 1991 tICHARD M. SOWERS, Petitioner, V. FEDERAL EXPRESS CORPORATION, Respondent. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit RESPONDENT’S BRIEF IN OPPOSITION R. LARRY BROWN E. Scott SMITH CLIFFORD P. JOHNSON Counsel of Record Federal Express Corporation PauL D. JONES 2005 Corporate Avenue ForD & HARRISON Memphis, Tennessee 38132 600 Peachtree at the Circle - (901) 395-3457 = * Building 1275 Peachtree Street, N.E. Atlanta, Georgia 30309 (404) 888-3800 Attorneys for Federal Express Corporation So eee cement 1 etch tte crm PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203 ET ASE La 7 Tere COUNTERSTATEMENT OF THE QUESTIONS PRESENTED 1. Whether Petitioner’s failure to assert, at any time before filing his Petition for Re-hearing with Suggestion for Rehearing En Banc in the Court of Appeals, that rejection of his common-law theory of anticipatory breach would be tantamount to a viola- tion of Sections 2, Third, Fourth, and Ninth of the Railway Labor Act, 45 U.S.C. §§ 152, Third, Fourth, and Ninth, precludes consideration of that issue in this Court? 2. Whether the questions presented in the Petition are sufficiently grounded in the factual record to per- mit this Court any meaningful opportunity to review the ruling of the Court of Appeals? 3. Whether the Petition adequately presents any special and important reasons justifying this Court’s exercise of discretionary review? il LIST OF PARTIES The names of all parties to the proceedings in the United States Court of Appeals for the Ninth Circuit appear in the caption of the case in this Court.' ‘ There are no parent companies or subsidiaries (except wholly owned subsidiaries) to be identified pursuant to Supreme Court Rule 29.1. ill TABLE OF CONTENTS Page COUNTERSTATEMENT OF THE QUESTIONS TIRES SSO 1 no cid olisca Sess ecocapesceannacnessc i] SABLE OF CONTENTS. ..............00000cc0.c.sccsescccccesees... lll TABLE OF AUTHORITIES. .................c.ccccc.cceeeees..... iV oe osc va cnacvarnevecsnonseencsesesccs 1 cop = iy yt ) cc rr 1 COUNTERSTATEMENT OF FACTS AND PROCEED.- INGS BELOW NECESSARY TO CORRECT INAC. CURACIES OR OMISSIONS IN THE PETITION ...... 2 SUMMARY OF ARGUMENT. ........cccccccccccsccccceccceccece, 4 REASONS FOR DENYING THE WRIT I. Neither The Decision Below Nor The Record Raises Either Of The Questions Presented In _ Aa 6 II. The Questions Presented Are Important Only To The Parties, Reflect No Circuit Conflict, And Present No Significant Legal Matter Warranting Resolution By This Court ......... 10 i esc isaisedivassinnntvedsessansaercoeneconeess 12 TABLE OF AUTHORITIES Cases: Barthelemy v. Air Line Pilots Ass’n, 897 F.2d 999 ee a SII co acta eeteiaaie aca Belcher v. Stengel, 429 U.S. 118 (1976) (per I eealtlas alors satvcnataratetackadinncstaceen pcadia voce Brotherhood of Ry. & S.S. Clerks v. Virginian Ry. Co., 125 F.2d 853 (4th Cir. 1942) ........... City of Springfield v. Kibbe, 480 U.S. 257 (1987) . EEOC v. FLRA, 476 U.S. 19 (1986) oo.....eceeeeeeeeees Electromation, Inc. & Int'l. Bhd. of Teamsters, NLRB Case No. 25-CA-19818, ALJ Dee’n SE winsakdsissccss sashigunndeatantaiegieaiealea ces teteiddsdiéte cis FTC v. Grolier, Inc., 462 U.S. 19 (1983) ........ Hertzka & Knowles v. NLRB, 503 F.2d 625 (9th Cir. 1974), cert. denied, 423 U.S. 875 (1975) . Mishkin v. New York, 383 U.S. 502 (1966) ........... NLKB v. Cabot Carbon Co., 360 U.S. 203 (1959) . Texas & N.O. Ry. Co. v. Brotherhood of Ry. & S.S. Clerks, 281 U.S. 548 (1980) oo... cece ecessecceeees Statutes: Railway Labor Act RP Weis Se Wy HOI nscsicerccccecshasecsesniecsnancsecs TD WBRs. © BGR, FOO vaiivscsssciccescvcersssscvesansves National Labor Relations Act Be Acre, TE BID wsncsecccsncvsacesosescncccsacsocceose Labor Management Relations Act Ber SR Ae I esciladicor is secwiicinuchsdawehnblnicaccentace Page(s) Table of Authorities Continued Page(s) ARTICLES: Melvin Hutson, ‘“Electromation: Employee Involve- ment or Employer Domination,” 8 LAB. LAW. FU FL 5... Bee er Om Oley anc eee 11 Bennet D. Zurofsky, “‘Everything Old is New Again: Company Unions in the Era of Employee In- volvement Programs,”’ 8 LAB. LAW. (ABA) OR ERED: cn aintsiodiaboadeen nae "33 RULES: I Gets he UE sacavesnstcaseceantal Steere i IN THE Supreme Court of the GCnited States OCTOBER TERM, 1991 No. 91-1919 RICHARD M. SOWERs, Petitioner, Vv. FEDERAL EXPRESS CORPORATION, Respondent. _ On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit RESPONDENT’S BRIEF IN OPPOSITION Respondent Federal Express Corporation (‘‘Federal Express’’) respectfully urges denial of the Petition for a Writ of Certiorari to review the judgment and order entered by the United States Court of Appeals for the Ninth Circuit on January 30, 1992. JURISDICTION The jurisdictional requisites are adequately set forth in the Petition. STATUTES INVOLVED No federal or state statute was involved in either the District Court or in Petitioner’s appeal to the Ninth Circuit. In this Court, however, Petitioner raises questions arising under Sections 2, Third, Fourth, and Ninth of the Railway Labor Act, as amended (“RLA’’), 45 U.S.C. §§ 152, Third, Fourth, and Ninth. These provisions are set out at pp. 47-51 of the Petition. COUNTERSTATEMENT OF FACTS AND PROCEEDINGS BELOW NECESSARY TO CORRECT INACCURACIES OR OMISSIONS IN THE PETITION There is no record support whatsoever for Petitioner’s suggestion that his “individual contract (the FCH) contained provisions for modification via a revision process [record citation omitted] wherein SOWERS was to be represented by a revocable agent [the FAB.]” (Petition, p. 10) (emphasis in original). The parties stipulated to the role played by the FAB in the FCH revision process (Petition, pp. 52-54), and no mention was ever made of Petitioner’s alleged uni- lateral right to “revoke” the FAB’s authority to ap- point pilot members to FCH revision committees for the purpose of effecting binding modifications to the FCH agreement. The FAB’s authority in that regard is conferred by the contract, not by Petitioner (Id.). Likewise, the record does not support Petitioner’s statement to this Court that the FAB is “an orga- nization that was the child of Federal Express man- agement and whose $1.1 million budget is paid completely by Federal Express ... .”’ (Petition, p. 10). The record contains neither any allegation nor any evidence addressed to either point. The only evidence adduced below concerning either the origin, the na- ture, or the operation of the FAB was also the subject of a stipulation between the parties: There exists within Federal an elected or- ganization known as the Flying [sic, Flight] Advisory Board (the “FAB”’). The FAB is elected by the pilot group and is responsible for, among other things, dealing with man- agement concerning matters of concern to crewmembers. (Appendix B, p. 8a, ¢ 14). The record is silent as to both the FAB’s creation and the amount and source of its budget. The Petition misinforms this Court that Petitioner “properly terminated his revocable agency with the ... FAB ...; this also being a stipulated fact be- tween the parties.” (Petition, p. 11). No such stipu- lation has ever existed. All matters stipulated to below were set forth in the Pretrial Order entered in the District Court (Appendix B, pp. 5a-11a), and they con- tain no suggestion that the FAB’s authority to ap- point revision committee members was either revocable or revoked. (See Jd., 44 1-3, 13-16, 20). No pleading, motion, brief, or oral argument in the District Court ever raised any question arising under the RLA. (Appendix B, pp. 3a-14a). Nor was the RLA mentioned or considered in connection with any issue Petitioner presented for review by the Ninth Circuit (Appendix C, pp. 15a-16a, “‘A Statement of the Issues Presented for Review” from Petitioner’s Opening Brief to the Ninth Circuit). Petitioner’s first mention of the RLA came in his Petition for Re-Hearing with Suggestion for Re-Hearing En Bant, which he pre- sented to the Ninth Circuit on or about February 14, 1992 (Appendix D, pp. 17a-18a). That petition was denied, apparently without any consideration being given to any issue said to arise under the RLA (Petition, p. 40). Accordingly, neither the District Court nor the Ninth Circuit has considered or passed upon the RLA’s applicability, if any, to the facts of this case. ~ SUMMARY OF ARGUMENT What began and was decided below as a breach of contract action between parties of diverse citizenship (Petition, p. 15) is presented to this Court as raising- far-reaching, if improbable, questions of federal labor policy under the RLA. To pose these questions that were neither raised nor decided below, Petitioner must either distort a detailed, stipulated factual record ‘or create a new one as he goes along. His petition at- tempts to do both. Petitioner’s thesis turns on the proposition that the Federal Express Flight Advisory Board (“‘FAB’’) must be either one of only two things: (1) his “revocable agent,’ (Petition, pp. 10, 11), or (2) a carrier-domi- nated labor organization, the existence or mainte- nance of which violates the RLA. Petitioner’s analysis ignores a third possibility: that the individual em- ployment contract into which he entered with Federal Express itself invested the FAB with authority to bind Petitioner to contract modifications. The record supports only this third alternative (Petition, pp. 52-54) and compelled the conclusion be- low that, “[a]ecording to its terms, the FCH [Flight Crewmembers Handbook] can only be modified pur- ~ suant to action of the FAB and Federal management .... The FAB-approved revision committee can bind Sowers to FCH revisions.” (Appendix A, p. 2a).2 Ac- cordingly, having stipulated to a record that defeats his breach of contract theory, Petitioner no longer complains of any conduct on the part of Federal Ex- press. Instead, his new complaint is that, on his own appeal, the Ninth Circuit, exceeded its jurisdiction by essentially anoint- ing this [now allegedly] employer-dominated ‘quality circle’ (the FAB) with all of the rights of an exclusive collective bargaining unit [sic, representative] under the Railway Labor Act but without any of the safeguards and re- sponsibilities [required by the RLA.] Petition, p. 28). These ‘‘issues” formed no part of the case Petitioner alleged, tried, lost, and appealed below. No record exists by which this Court, or any other, could possibly adjudicate the FAB’s alleged status as a car- rier-dominated labor organization proscribed by the RLA. Such a finding, though, must precede consid- eration of Petitioner’s present lament, that the ‘‘Ninth Circuit’s ... order . ... transmogrified this case from a simple contract action into a statutory quagmire .... (Petition, p. 27 n. 5). This case was and remains “a simple contract action,” and it properly presents no issue for resolution by this Court. * Appendix A is the Ninth Circuit’s two-page Memorandum also set out at pp. 32-35 of the Petition. We include it here because the Petition’s version inadvertently drops an impcrtant line from the penultimate paragraph of that court’s decision. REASONS FOR DENYING THE WRIT I. Neither The Decision Below Nor The Record Raises Either Of The Questions Presented In The Petition. Each Question Presented in the Petition (pp. 2-3) complains of an alleged disharmony between the lower courts’ conclusions that Federal Express did not breach Petitioner’s individual contract of employment, on the one hand, and various requirements of the Railway Labor Act, on the other. But the Ninth Cir- cuit decided no such question in this proceeding. Moreover, the record will Support no such determi- nation of those issues by this Court. Like the District Court’s decision it affirmed (Petition, pp. 36-39), the Ninth Circuit’s decision does no more than hold that Petitioner’s “employment con- tract was not breached by repudiation or otherwise.” (Appendix A, p. 2a). As Petitioner has always as- serted, and continues to assert, the agreement giving rise to this dispute was ‘“‘an individual contract of employment’’ (Petition, p. 10), not a collective bar- gaining agreement. Thus, the Ninth Circuit had no occasion to consider, and did not consider, any portion of the questions now presented in the Petition. This Court ‘‘ordinarily will not decide questions not raised or litigated in the lower courts.” City of Springfield v. Kibbe, 480 U.S. 257, 259 (1987); FTC v. Grolier, Inc., 462 U.S. 19, 23 n. 6 (1983). As Kibbe also states, “‘[t]hat rule has special force where the party seeking to argue the issue has failed to[raise or preserve it.]’’ 480 U.S. at 259. If the writ requested were granted to review the Questions Presented by Petitioner, it would be dis- missed as improvidently granted after plenary con- ~] sideration. Belcher v. Stengel, 429 U.S. 118 (1976) (per curiam). The linchpin of each of the Questions Pre- sented is the allegation that the FAB is a “carrier- dominated labor organization” maintained in violation of the RLA. But because that assertion lacks any record support whatsoever, the Petition should be de- nied now, rather than the writ dismissed later. See EEOC v. FLRA, 476 U.S. 19, 23 (1986). Petitioner’s Questions Presented assume that the FAB is a carrier-dominated labor organization, but this contention was neither raised nor proved below. That assumption is itself composed of two parts: that the FAB is a “labor organization”’ and, if it is, that Federal Express ‘“‘dominates”’ ii. The RLA treats the subject of ‘‘carrier domination”’ in Section 2, Fourth. That section states, in relevant part, that: [I]t shall be unlawful for any carrier to in- terfere in any way with the organization of its employees, or to use the funds of the carrier in maintaining or assisting or con- tributing to any labor organization, labor rep- resentative, or other agency of collective bargaining, or in performing any work there- OO oka 45 U.S.C. § 152, Fourth. That section’s proscriptions are tied to Congress’s concern with eliminating a car- rier’s “actual interference with the liberty of [its] em- ployees in the selection of their representatives[,]’’ Texas & N.O. Ry. Co. v. Brotherhood of Ry. & S.S. Clerks, 281 U.S. 548, 560 (1930), a concern that has never been implicated in this case. Safeguards against improper carrier or employer influence over labor organizations are neither new nor arcane. Federal labor policy, as applied by this Court and the courts of appeal, has protected employee rights in this area for over fifty years. See, e.g., Sec- tions 2, Third, and Fourth of the Railway Labor Act, 45 U.S.C. §§ 152, Third, Fourth; Section 8(a)(2) of the National Labor Relations Act (““NLRA’’), 29 U.S.C. _§ 158(a(2); Section 302(a) of the Labor Management Relations Act, 29 U.S.C. § 186(a); and NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959). These concerns are not unknown to the circuit courts and are fully con- sidered when presented in appropriate cases. See, e.g.: Barthelemy v. Air Line Pilots Ass’n, 897 F.2d 999, 1014-1017 (9th Cir. 1990) (carrier did not violate RLA Section 2, Fourth by assuming labor organization’s $1.25 million investment-banking expense); Hertzka & Knowles v. NLRB, 503 F.2d 625 (9th Cir. 1974), cert. denied, 423 U.S. 875 (1975) (no violation of Section 8(aX2) of NLRA where cooperative employee-man- agement arrangement reflects employee free choice and not management instigation and coercion); Broth- erhood of Ry. & S.S. Clerks v. Virginian Ry. Co., 125 F.2d 853, 858-59 (4th Cir. 1942) (describing indicia of carrier domination of labor organization in violation of RLA). But the “appropriate cases” are those which pres- ent factual records upon which the courts can answer two questions: (1) the origin and operation of the employee group in question, i.e., is the group actually a “labor organization” under the relevant statute? and (2) the nature and extent of carrier or employer control, interference, assistance, or influence, i.e., is 9 66 the ‘‘labor organization”’ ‘‘carrier-dominated?” The re- cord in this case answers neither question. The only evidence before the District Court and Ninth Circuit concerning the origin and nature of the FAB is found in the parties’ one-sentence stipulation describing the FAB as “.. . elected by the pilot group and ... responsible for, among other things, dealing with management concerning matters of concern to crewmembers.” (Appendix B, p. 8a, ¢ 14). What this Court can know about the FAB’s function is limited to the single fact that the FAB appoints three of the seven members of FCH Revision Committees for pur- poses of considering modifications to the FCH con- tract. (Petition, p. 52). This meager record provides no basis for a determination that the FAB is a “labor organization” under the RLA. Even less supported is the second prong of the determination Petitioner asks this Court to make. The record contains no evidence whatsoever that Federal Express created, influenced, controlled, or financially assisted the FAB'in any way. Petitioner merely asks this Court to accept on faith his suggestion that the FAB is ‘“‘an organization that was the child of Federal Express and whose $1.1 million budget is paid com- pletely by Federal Express ....” (Petition, p. 10). Petitioner did not allege or prove one word of that statement below (Appendix B, pp. 3a-14a); and he cannot properly ask this Court to be the initial arbiter of such significant contentions of fact. Nowhere present in the record made below are any of the allegations, facts, or findings that must nec- essarily precede consideration of the Questions Pre- sented in the Petition. The Petition seeks an advisory opinion upon a hypothetical set of assumptions that 10 has never before been alleged or proved. There is, simply, nothing for this Court to review, and, for this reason alone, the Petition should be denied. II. The Questions Presented Are Important Only To The Parties, Reflect No Circuit Conflict, And Present No Significant Legal Matter Warranting Resolution By This Court. Aware that the decisions below that Federal Ex- press did not breach his individual, common-law, em- ployment contract affect only the parties to this case and create no circuit conflict, Petitioner strains to suggest that he raises a question ‘‘the national sig- nificance and importance of [which ...] is just cur-- rently coming into focus.” (Petition, p. 28). He does not explain how this can be so, given the age of the ‘employer domination” cases, and the asserted ‘“‘sig- nificance’”’ of the issue he raises is all the more reason for this Court not to consider the question on the hypothetical record Petitioner presents. Mishkin v. Ivew York, 383 U.S. 502, 512-13 (1966) (writ dismissed as improvidently granted where ‘‘far-reaching and im- portant questions tendered ... are not presented by the record with sufficient clarity to require or justify their decision.’’) Petitioner points.to two cases now pending before the National Labor Relations Board and the National Mediation Board in which the legality of ‘quality cir- cles” or “employee involvement programs” is being tested under the NLRA and the RLA.? His reliance on these pending cases proves too much. * One of the pending cases, Electromation, Inc. & Int'l. Bhd. of Teamsters, NLRB Case No. 25-CA-19818 ALJ Dec’n (1990), has provoked some recent commentary among members of the OT 1] Petitioner himself notes that, in Electromation, an administrative law judge ‘has made findings of fact and conclusions of law that would indicate a ‘quality circle’ or ‘action committee’ . . . are [sic] inimical to the ability of labor to organize.” (Petition, p. 29). If the agencies charged with administering the NLRA and RLA should determine that ‘‘quality circles” are inimical to federal labor policy, the federal courts will have ample opportunity to review those conclusions on properly-developed records. It is precisely the ab- sence of any similar record here that makes this case especially inappropriate for review by this Court. This case, therefore, presents no significant federal question or other legal matter warranting resolution by this Court. The decision below rests entirely upon the adequate, independent, common-law ground that Petitioner’s individual contract of employment ‘was not breached by repudiation or otherwise.”’ (Appendix A, p. 2a). Because nothing else, or greater, can prop- erly be made of this case, this Court should decline Petitioner’s invitation to consider the questions he presents. labor-law bar. Compare, Bennet D. Zurofsky, “Everything Old Is New Again: Company Unions in the Era of Employee In- volvement Programs,” 8 Lab. Law. (ABA) 381 (1992), with, Melvin Hutson, ‘‘Electromation: Employee Involvement or Em- ployer Domination,” 8 Lab. Law. (ABA) 389 (1992). 12 CONCLUSION For the foregoing reasons, the Petitioner for a Writ of Certiorari should be denied. Respectfully submitted, R. LARRY BROWN E. Scott SMITH CLIFFORD P. JOHNSON Counsel of Record Federal Express Corporation PaAuL D. JONES 2005 Corporate Avenue ForD & HARRISON Memphis, Tennessee 38132 600 Peachtree at the Circle (901) 395-3457 Building 1275 Peachtree Street, N.E. Atlanta, Georgia 30309 (404) 888-3800 Attorneys for Federal Express Corporation APPENDIX x ‘* TSS is — rare er > 7 ‘ yi wi), ef Med . J nn ee eee Be é + ty 2 é Ns ere ee la APPENDIX A UNITED STATES COURT OF APPEALS | FOR THE NINTH CIRCUIT No. 90-16752 D.C. No. CV-89-00474-BRT \ RICHARD M. SOWERS, Plaintiff-Appellant, v. FEDERAL EXPRESS CORPORATION, Defendant- Appellee. Appeal from the United States District Court for the District of Nevada Bruce R. Thompson, Senior District Judge, Presiding Argued and Submitted January 13, 1992 San Francisco, California MEMORANDUM* Before: SNEED, SCHROEDER, T.G. NELSON, Circuit Judges. Mer Richard Sowers appeals the district court’s grant of summary judgment in favor of Federal Express Corpo- ration (‘Federal’). We review de novo, Kruso v. Inter- *This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3. 2a national Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990), and affirm. We may affirm on any ground finding support in the record. Jd. Sowers’ employment contract was not breached by repudiation or otherwise. The FCH was at all times amendable, according to its terms, with or without Sowers’ individual consent. The revision process concluded on Au- gust 4, 1989, in a FAB-approved revision which complied with the FCH revision process. The district court correctly concluded that Federal properly revised Section 1-96 of the FCH before performance was due, and that Sowers’ anticipatory breach theory was no more than a fiction. Furthermore, as the district court explained, Sowers failed to treat the alleged repudiation as a breach by re- signing his employment or otherwise putting Federal on notice that he considered his employment contract to be terminated. The filing of lawsuits by Sowers did nothing to affect his employment contract. We reject Sowers’ ar- gument that by continuing his employment with Federal he was merely mitigating his damages. Sowers’ arguments are an ad hoc explanation of a series of events which in reality do not support his position. Sowers would have us believe that because he ‘‘fired”’ the FAB, the modification of the FCH was invalid as to him. According to its terms, the FCH can only be modified pursuant to action of the FAB and Federal management. Sowers notified FAB that he had ‘terminated his agency with them.’’ Sowers removed himself from the amendment process; this did not affect the process or the resulting modification. The FAB-approved revision committee can bind Sowers to FCH: revisions. We have considered the other contentions of the parties and conclude that no additional discussion is necessary. The district court’s entry of summary judgment is AF- FIRMED. 3a APPENDIX B UNITED STATES DISTRICT COURT DISTRICT OF NEVADA Case No. CV-N-89-403 BRT RICHARD M. SOWERS, Plaintiff, vs. FEDERAL EXPRESS CORPORATION; TIGER INTERNATIONAL, INC.; THE FLYING TIGER LINE INC., a wholly owned subsidiary of TIGER INTERNATIONAL, INC.; Defendants. Case No. CV-N-89-474 BRT RICHARD M. SOWERS, Plaintiff, : VS. FEDERAL EXPRESS CORPORATION, Defendant. PRETRIAL ORDER Following pretrial proceedings in this cause pursuant to Local Rule 190-3, IT IS ORDERED: I. These Cases are actions for injunctive relief and dam- ages sought to remedy Defendant’s alleged breach of its 4a employment contract with Plaintiff, material portions of which are embodied in the Federal Express Flight Crew- members Handbook (‘‘FCH’’). The alleged breach arose out of Defendant Federal Express Corporation’s (‘‘Federal’’) merger with Tiger International, Inc. and its wholly-owned subsidiary, The Flying Tiger Line, Inc. (‘“Tiger’’), on Au- gust 7, 1989. On December 16, 1988, as part of its Agree- ment and Plan of Merger with Tiger International, Inc., Federal voluntarily adopted certain Labor Protective Pro- visions (‘‘LPPs’’). The LPPs require the fair and equitable integration of the seniority lists of the two pilot groups and provide that Federal must arbitrate any challenge to the fairness or equity of that integration. Following that merger, Federal is proceeding with the fair and equitable combination of the former Federal pilot seniority list and the former Tiger pilot seniority list into a single, inte- grated seniority list. Plaintiff contends that when, on or about December 16, 1988, Defendant FEDERAL EXPRESS CORPORATION vol- untarily entered into Labor Protective Provisions (LPPs) and did other acts as a part of their merger agreement with TIGER INTERNATIONAL/FLYING TIGERS, they did so knowingly and willfully violating a pre-existing individ- ual contractual right contained in the aforementioned 1- 96 of the FCH. FEDERAL EXPRESS entered into these LPPs for economic gain in violation of a pre-existing con- tractual right. These actions by FEDERAL EXPRESS inevitably caused the loss of 600 to 800 seniority positions for Plaintiff SWOERS [sic] and drastically effected his future earnings, retirement benefits and job satisfaction. Plaintiff seeks compensation sufficient to protect his ex- pectancy in inter>st in the underlying contract of employ- ment as partially expressed by 1-96 of the FCH. Federal contends that Section 1-96 of the FCH was at all times amendable; that the FCH was properly amendec a according to its terms, before the merger of Tiger into Federal; that the contract has not been breached; and that Plaintiff is not entitled to any relief whatsoever. Alter- natively, Defendant contends that Plaintiff had knowledge of Federal’s intention to comply with the LPPs from on or about December 16, 1988, and knew that such compli- ance would be inconsistent with his alleged right under FCH Section 1-96; that Plaintiff first informed Federal of his objection to Federal’s announced course of action on or about July 14, 1989, three days before he filed the first of these suits against Federal; that between December 1988 and July 1989 Plaintiff knew that Federal was ex- pending great sums of money and amounts of time pre- paring to comply with the LLPs [sic, LPPs] and that much of that time and money was expended on behalf of Plaintiff and the other Federal pilots; that Federal reasonably con- strued Plaintiff's silence as his acquiescence to Federal’s frequently-announced intentions to comply with the LPPs;: and that Plaintiff's conduct amounts to laches and equi- tably estops him from recovering any damages or other relief from Federal. Il. This Court has diversity jurisdiction over the subject matter of this action under 28 U.S.C. § 1332(a)(1). Plaintiff is a citizen and resident of the State of Nevada; Federal is a Delaware corporation with its principal place of busi- ness in Memphis, Tennessee; and the amount in contro- versy between the parties exceeds the sum or value of $50,000.00, exclusive of interest and costs. III. The following facts are admitted by the parties and require no proof: 1. On July 17, 1989, the Plaintiff filed his initial com- plaint in the action styled as Richard Sowers v. Federal 6a Express Corporation, Tiger International, Inc. and Flying Tiger Line, Inc., CV-N-89-403-BRT (D. Nev.), claiming that the seniority he had earned while working as a pilot for Federal was being jeopardized by the merger of Flying Tigers and its pilot workforce into Federal Express. 2. According to the Plaintiff, Federal was threatening to integrate the seniority lists of the two carriers in a ‘fair and equitable manner,’’ in contravention of his con- tractual right to insist on having all Flying Tigers’ flight crewmembers placed at the bottom of any integrated sen- iority list. 3. The Plaintiff requested injunctive relief as well as $2.5 million in compensatory damages, $5 million for men- tal distress and an unspecified amount for general dam- ages, punitive damages, actual, consequential and incidental losses and attorneys’ fees and prejudgment interest. 4. Plaintiff alleges and Federal agrees that, Plaintiff has an individual contract of employment with Federal, the material terms and conditions of which are governed by the FCH. 5. Section 1-96, added to the FCH in August, 1988, provided: In the event the Company acquires or merges with another airline employing Flight Crewmem- bers, any such crewmembers selected for reten- tion will be awarded seniority in accordance with FCH 1-85, Crewmembers Seniority, with the ex- ception of FCH 1-88 [relating to the relative sen- iority of crewmembers hired on the same date]. 6. Section 1-86 of the FCH stated that: Seniority will begin to accrue on the date a pilot is employed by the Company as a crewmember and begins Initial Training and Basic Indoctri- nation. It will continue to accrue during his entire ‘i employment period, except as specified in FCH Sections 1-88 and 1-91 [relating to crewmembers assigned to non-flying duty]. 7. The FCH contains an internal dispute resolution pro- cedure known as the Guarantee of Fair Treatment Policy (“GFTP”’) which, had it been invoked in this case, could have resulted in Plaintiff’s complaint being finally resolved by a Board of Review consisting of five Federal pilots, three of whom would have been chosen by Plaintiff. Sen- lority grievances are expressly redressable by the GFTP. Plaintiff was aware of the GFTP procedures and had pre- viously invoked those procedures to resolve an earlier grievance, but he made no attempt to do so in this case. 8. On December 16, 1988, Federal and Tiger Interna- tional entered into an Agreement and Plan of Merger. As part of that Agreement, Federal agreed to adopt labor protective provisions no less favorable to employees of both carriers than those imposed by the Civil Aeronautics Board in the Allegheny-Mohawk Merger Case, 59 C.A.B. 19 (1972). 9. In accordance with that obligation, Federal voluntar- ily assumed the Federa! Express-Flying Tigers Labor Pro- tective Provisions (the ““LPPs’’). 10. Section 3 of the LPPS specifies that: Insofar as the merger affects the seniority rights of the carriers’ employees, provisions shall be made for the integration of seniority lists in a fair and equitable manner, including, where ap- plicable, agreement through collective bargaining between the carriers and the representative of the employees affected. In the event of failure to agree, the dispute may be submitted by either party for adjustment in accordance with Section 13 [providing for final and binding arbitration before a neutral arbitrator selected by the par- ties]. = 8a 12. In December, 1988, The Flying Tiger Line, Inc. was a party to a collective bargaining agreement with the Air Line Pilots Association, International, which agreement governed the rules, working conditions, and rates of pay of the Flying Tiger pilots. That agreement required, inter alia, that: In the event of a consolidation or merger of the business of the Company [Flying Tiger], with the business of another air carrier, the Company, if it is the surviving air carrier, will provide the pre-merger or pre-consolidation Company pilots covered by this Agreement with the labor pro- tective provisions specified by the Civil Aeronau- tics Board in the Allegheny-Mohawk merger (the ‘Labor Protective Provisions’’). If the Company is not the surviving air carrier the Company shall use its best efforts to cause the surviving air carrier to provide the pre-merger or pre-consol- idation Company pilots with the Labor Protective Provisions. ... 13. At no time prior to three days before he filed his original lawsuit did Richard Sowers tell Federal that he objected to Federal’s adoption of the LPPs. 14. There exists within Federal an elected organization known as the Flying [sic, Flight] Advisory Board (the “FAB”’). The FAB is elected by the pilot group and is responsible for, among other things, dealing with man- agement concerning matters of concern to crewmembers. 15. The FCH contains a Revision Process, which is ad- ministered by a Revision Committee consisting of three (3) pilots appointed by the FAB, three (3) management members appointed by the System Chief Pilot, and the System Chief Pilot. Two basic methods are specified in the FCH by which a modification to the terms of the FCH can be effectuated. Under the formal Revision Process, the Revision Committee meets to consider changes that Ya have been proposed. A quorum of five of the six crew- members, plus the Chief Pilot, is required to conduct the revision process. All crewmembers are thereafter notified of the proposed changes and have three (3) weeks to sub- mit comments to the Revision Committee. After receiving those comments, the Revision Committee determines whether to recommend the changes to the FCH, and any recommended revisions are sent to the Senior Vice Pres- ident of Air Operations who decides whether to accept the recommended revision. Any member of the Revision Com- mittee can appeal the decision of the Senior Vice President of Air Operations to the Chief Operating officer who, along with the Chairman and Chief Executive Officer, will render the final opinion regarding the proposed revision. 16. The other means for revising the FCH is the Bul- letin Process. A Notice of Exception Bulletin is used to permit exceptions to the normal FCH procedures to be made for single instances where appropriate. At least six (6) of the seven (7) Revision Committee members must endorse the proposed exception in order for it to be sent to the Senior Vice President of Air Operations for ap- proval. The determination of the Senior Vice President of Air Operations to accept or reject the exception can be appealed by any member of the Revision Committee to the Chief Operating Officer who, acting in conjunction with the Chairman and Chief Executive Officer, will render the final opinion regarding the proposed exception. 17. On July 15, 1989, T. Allen McArtor, the Senior Vice President for Air Operations at Federal, sent a memoran- dum to David Sanders, the Chairman of the FAB, and to the other members of the Revision Committee, notifying them of a proposed revision to Section 1-96 of the FCH. 18. Instead of designating the three (3) pilot members to serve on the Revision Committee from the FAB, Sand- ers sent a memorandum to McArtor, advising him that the FAB refused, at that time, to participate in any man- 10a ner in a Revision Committee that was considering revising Section 1-96 of the FCH. 19. Managements’ Revision Committee Members, acting in the absence of the pilot members from the FAB, there- after convened and a proposed revision to Section 1-96 was then sent to all crewmembers for their consideration and comments. 20. The Plaintiff then filed his second Complaint, styled as Richard Sowers v. Federal Express Corporation, CV-N- 89-474-BRT (D. Nev.), contending that the Revision Com- mittee could not adopt a change to the FCH in the absence of the FAB-appointed pilot-committee members. Based on this alleged breach of his contract, the Plaintiff sought $2.5 million in compensatory damages, $5 million for anx- iety, mental stress, humiliation and despair, injunctive re- lief to prevent any revision to the FCH, unless accomplished in accordance with the Revision Process, and his attorneys’ fees. 21. At the request of the FAB, the entire Revision Com- mittee, including all FAB-appointed Committeemen, met on August 4, 1989. The Revision Committee agreed to withdraw the proposed revision published for comment on July 15th, and, instead, unanimously approved a Bulletin exception to Section 1-96 of the FCH. 22. Under the terms of that exception, Bulletin 89-25, Section 1-96 is to remain‘-unchanged except that integra- tion of the seniority lists of the Federal and the Flying Tigers flight crewmembers is to be accomplished in a fair and equitable manner in accordance with Sections 3 and 13 of the LPPs. Bulletin 89-25 also requires that, until the integration process has been completed, the pilots of both carriers retain their previous seniority rights, and they are restricted from bidding on one another’s aircraft and routes. 23. In conformity with the Bulletin Exception process, Bulletin 89-25 as proposed by the full Revision Committee lla was approved by the Senior Vice President of Air Oper- ations on August 4, 1989, before the merger of Flying Tigers into Federal occurred on August 7. At all times since then, Federal has complied with the terms of Bulletin 89-25, and the integration of the seniority lists of the Flying Tigers and the Federal pilots is being resolved by an impartial arbitrator selected by the parties who began hearings on December 7, 1989. To date, Plaintiff has not asserted or complained of any violation of Section 1-96 of the FCH, as modified by Bulletin 89-25. 24. As of the date of this Pretrial Order, Plaintiff has suffered no economic loss whatsoever as a result of the addition of Bulletin 89-25 to the FCH as an exception to the operations of Section 1-96 of the FCH. 25. The offer and acceptance of employment were made while Plaintiff was a resident of Sacramento, California, telephonically and in writing. Subsequently, the FCH was delivered to Plaintiff during his initial training in Memphis, Tennessee. 26. FRED SMITH is the Chief Executive Officer of the FEDERAL EXPRESS CORPORATION. 27. The facts stated above in II regarding jurisdiction. IV. The following facts, though not admitted, will not be contested at trial by evidence to the contrary: None. ¥. The following are the issues of fact to be tried and determined at trial: ‘ Defendant submits that there is no genuine issue of material fact as to Defendant’s liability in these cases and, therefore, that there is nothing for a jury to determine. Accordingly, Defendant will move for summary judgment, as to the entirety of both of Plaintiff’s complaints, and will serve such motion on or before May 4, 1990. 12a 1. Where is the place of performance of the contract of employment between Plaintiff and Federal? 2. What State has the most significant interest in con- tacts with the contract of employment between Plaintiff and Federal? 3. Whether or not a breach of the covenant of good faith and fair dealing occurred when Defendant FEDERAL EXPRESS CORPORATION entered into the LPPs, on or about December 16, 1988, with knowledge of the under- lying and pre-existing individual contractual rights of Plaintiff, as expressed in 1-96 of the FCH.? 4. Did Plaintiff unreasonably delay his claim of breach of his contract of employment with Federal? 5. Did Federal change its position or suffer injury or disadvantage during or as a result of Plaintiff's delay in asserting his said claim? VI. The following are the issues of law to be tried and determined upon trial or to be earlier disposed of by mo- tion: 1. Whether the FAB-approved insertion of Bulletin 89-25 into the FCH as an exception to FCH Section 1-96 amounted to a breach of contract? 2. Upon the issue of liability, may the Court properly consider events occurring after the filing of this action but before the merger of Flying Tigers into Federal? ? As noted infra in the issues of law, Federal objects to consideration of any issue relating to the covenant of good faith and fair dealing because it has not been pleaded by Plaintiff. Federal further objects to the phrase “pre-existing individual contractual rights’’ because it implies the FCH “contract” could not be changed in accordance with its terms. wo 9. 10. 11. 12. 13. 13a . Whether Plaintiffs claims for injunctive relief should be dismissed for Plaintiff’s failure to join indispensable parties? . Whether Plaintiff's claims are barred by Plaintiff’s admitted failure to exhaust the contractual remedy of processing a claim under the Guarantee of Fair Treatment Policy contained in the FCH? . Whether Plaintiff's claims are barred by laches? Whether Plaintiff is estopped from asserting his claims? Whether Plaintiff has an adequate remedy at law so that he is not entitled to injunctive relief? . Whether Plaintiff has properly pleaded a claim for breach of the implied covenant of good faith and fair dealing? Whether Plaintiff is entitled to punitive damages? Whether or not Paragraph 1-96 of the FCH was a pre-existing individual contractual right between Plaintiff and Defendant FEDERAL EXPRESS. Whether or not FEDERAL EXPRESS anticipa- torially [sic] breached the aforementioned individ- ual contract of employment when they voluntarily entered into the LPPs with TIGER INTERNA- TIONAL/FLYING TIGER LINE, INC. on or about December 16, 1988. If this was a [sic] anticipatory breach of Plaintiff's contract of employment as expressed in 1-96 of the FCH, did this breach cause damages to Plaintiff on August 2, 1989, when the instant law- suit was filed. Whether or not the revisions of the FCH made prior to August 2, 1989, mitigated/negated the 14. 15. l4a contractual rights of Plaintiff as expressed in Par- agraph 1-96 of the FCH. Whether or not any modifications to the FCH, Section 1-96, made after the filing of the instant lawsuit on August 2, 1989 serve to mitigate/ne- gate Plaintiff's damages, if any. The issues of declaratory relief; the Court deter- mining the rights of the parties concerning the provisions of the FCH (individual contract of em- ployment between Plaintiff (employee) and Defendant (employer) vis-a-vis the LPPs which are contrary to the contract of employment entered into between Defendant FEDERAL EXPRESS and TIGER INTERNATIONAL, INC./THE FLYING TI- GER LINE, INC. 15a APPENDIX C BRIEF OF APPELLANT UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT APPEAL NO. 90-14752 RICHARD M. SOWERS, Plaintiff/A ppellant, v. FEDERAL EXPRESS CORPORATION, Defendant/Appellee. APPEAL FROM JUDGMENT OF DISTRICT COURT I. A STATEMENT OF THE ISSUES PRESENTED FOR REVIEW 1. Did the Trial Court err in ruling that SOWERS’ in- dividual contract of employment was not terminated by FEDERAL EXPRESS’ (“FEDERAL”) anticipatory breach and SOWERS’ subsequent lawsuit? 2. Did the Trial Court err in ruling that FEDERAL’S attempted modification of the Flight Crewmembers’ Hand- book (“‘FCH”’) (which was agreed to by the Flight Advisory Board (‘‘FAB’’) and FEDERAL management after the filing of this lawsuit, but never agreed to by SOWERS or any agent authorized by him) severed the legal remedies avail- able to SOWERS? 3. Did the Trial Court err in ruling that SOWERS’ con- tinued employment by FEDERAL following the filing of this lawsuit was a waiver by him of legal remedies oth- l6a erwise available to him; rather than merely a reasonable and good faith attempt to mitigate his damages? 17a APPENDIX D BRIEF FOR APPELLANT UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT APPEAL NO. 90-14752 RICHARD M. SOWERS, Plaintiff/Appellant, v. FEDERAL EXPRESS CORPORATION, Defendant/Appellee. _—_—_—_— APPEAL FROM JUDGMENT OF DISTRICT COURT PETITION FOR RE-HEARING WITH SUGGESTION FOR RE-HEARING EN BANC I. STATEMENT OF THE REASONS FOR FILING THE MO- TION FOR RE-HEARING WITH SUGGESTION FOR RE- HEARING EN BANC A. Reasons for Request for Re-Hearing A material point of fact or law was overlooked/misap- prended in the decision. B. Reasons for Suggesting a Re-Hearing En Banc The instant proceeding before this Court involves a ques- tion of exceptional importance going directly to the use of employer-sponsored, employee “quality circle”, commit- tees, unions, etc., such as the Flight Advisory Board (FAB) 18a that violate either the NLRA (29 USC 151, et seq.) or the RLA (45 USC 151-180) provisions and (in this case) strip SOWERS of all individual contract rights. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0741%3A2. Public record. Not legal advice.