Petition for Writ of Certiorari — Grahn v. International Brotherhood of Teamsters Airline Division

| ee

5

2 ' Yrs, —

; JD a ng fey zt

y

. ‘

Ba. &s

‘s U4

G 2 7 I oO 4 3 | aR 2 . 1993

No. —. ssid

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

VICTOR G. GRAHN; JAMES L. COOPER, JR.; RICHARD

DANIEL GALLAGHER; COURTNEY B.L. EDWARDS;

RONALD WAYNE DAGE, i..)...2.5eee ae PETITIONERS

versus

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

AIRLINE DIVISION, LOCAL 608, affiliated with the

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen, and Helpers of America, AFL-CIO; THE

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF

AMERICA, AFL-CIO; UNITED PARCEL SERVICE CO.::

INDEPENDENT PILOTS ASSOCIATION, ....RESPONDENTS

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

HOLLIS L. SEARCY

Attorneys at Law

Republic Building, Suite 400

429 West Muhammad Ali Blvd

Louisville, Kentucky 40202

(502) 582-1100

Counsel for Petitioners

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

VICTOR G. GRAHN; JAMES L. COOPER, JR.; RICHARD

DANIEL GALLAGHER; COURTNEY B.L. EDWARDS;

FPOTIREEE WEE TUE BPPURS ond ide ankncduisscanmecncas PETITIONERS

versus

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

AIRLINE DIVISION, LOCAL 608, affiliated with the

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen, and Helpers of America, AFL-CIO; THE

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF

AMERICA, AFL-CIO; UNITED PARCEL SERVICE CO.:

INDEPENDENT PILOTS ASSOCIATION, ....RESPONDENTS

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Se

HOLLIS L. SEARCY

Attorneys at Law

Republic Building, Suite 400

429 West Muhammad Ali Blvd

Louisville, Kentucky 40202

(S02) 582-1100

Counsel for Petitioners

QUESTIONS PRESENTED FOR REVIEW

WHETHER THE LANGUAGE OF THE RAILWAY

LABOR ACT AT 45 U.S.C. § 152 SEVENTH AND 45

U.S.C. § 156 PROHIBITS DEFENDANTS FROM

CHANGING THE RATES OF PAY, RULES, OR

WORKING CONDITIONS OF THE PLAINTIFFS

CONTRARY TO AND IN VIOLATION OF THE

TERMS OF THE’ EXISTING COLLECTIVE

BARGAINING AGREEMENT, AND CONTRARY TO,

AND IN VIOLATION OF THE RAILWAY LABOR

ACT, AND IF SO, WHETHER THE DECISION OF

THE DISTRICT COURT ENTERING SUMMARY

JUDGMENT DISMISSING PLAINTIFFS’ COMPLAINT

AGAINST DEFENDANT UNIONS FOR BREACH OF

DUTY OF FAIR REPRESENTATION, AND AGAINST

DEFENDANT UPS FOR BREACH OF THE

COLLECTIVE BARGAINING AGREEMENT WAS

ARBITRARY AND IN ERROR AS A MATTER OF

LAW.

WHETHER THE DISTRICT COURT ERRED IN

HOLDING THAT THE COMPANY AND UNION

REPRESENTATIVES WERE AUTHORIZED TO

CREATE A SIDE AGREEMENT PURPORTING TO

INTERPRET A PROVISION OF THE SUPPLEMENTAL

AGREEMENT RESOLVED PREVIOUSLY BY A

SYSTEM ®80ARD OF ADJUSTMENT RULING,

WITHOUT ADDRESSING THE ISSUE OF WHETHER

THE PROCEDURES ENGAGED IN TO EFFECT SUCH

CHANGES AND AMENDMENTS ULTIMATELY DID

OR DID NOT ABIDE BY THE TERMS OF THE

COLLECTIVE BARGAINING AGREEMENT, THE

PROVISIONS OF THE RAILWAY LABOR ACT, AND

A UNION’S DUTY OF FAIR REPRESENTATION.

IIT.

Li

WHETHER THE SIXTH CIRCUIT COURT OF

APPEALS FAILED TO APPLY THE CORRECT

STANDARD IN REVIEWING’ THE DISTRICT

COURT’S GRANT OF SUMMARY JUDGMENT.

1v

PARTIES

The Petitioners in this Court are Victor G. Grahn, James

L. Cooper, Jr., Richard Daniel Gallagher, Courtney B.L.

Edwards, Ronald Wayne Dabe, who were the Plaintiffs-Appellants

below.

The Respondents in this Court, who were the Defendants-

Appellees below, are International Brotherhood of Teamsters

Airline Division, Local 608, affiliated with the International

Brotherhood of Teamsters, Chauffeurs, Warehousemen, and

Helpers of America, AFL-CIO; The International Brotherhood of

Teamsters, Chauffeurs, Warehousemen, and Helpers of America,

AFL-CIO; United Parcel Service Co.; Independent Pilots

Association.

Vv

TABLE OF CONTENTS

Page

Questions Presented for Review......................... i, ii, ili

Pe aienucscharnncoca cat eacie cea iv

re ic cccsisdiceis ccs Vii

Official and Unofficial Reports of Opinions

Pe Ne Wi iuhasacccrtetvseonerecesieee ces Vili

a seiicniintinsitavined onslacs eromummaadeenins l

Constitutional Provisions, Statutes and

Rules Involved in the Case.................... 2

Statement of the Case...............0 ccc ceceecec aces 3-11

PN i viksinanenseciatuacevene: iicukaesedeaabekebonseerin 11-26

I. The District Court Decision

Entering Summary Judgment

Dismissing Plaintiffs’ Complaint

Was Arbitrary And In Error As A

Matter Of Law Because It Failed

To Address The Issue Set Forth In

Plaintiffs’ Complaint And In The

Parties Motions For Summary

SIRS panckissucgeciccsunixscuenee, 11-14

Il]

Conclusio

Appendix

Dias hea

v1

Plaintiffs Have Presented Material

Facts Raising Genuine Issues As

To Defendant Teamsters Union's

Breach Of Its Duty of Fair

ROPTOSOMMATION, ......cccccccsevsceess

The District Court Did Not

Address The Issue Before It But

Instead Dismissed Plaintiffs’

Complaint Based On An Issue

Irrelevant To The

Case. PANEER CRA RO ATSS

15-22

22-26

26

la-23a

=

Vil

TABLE OF AUTHORITIES

Page

Cases:

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 106 S. Ct. 2505,

91 L.Ed.2d 202 (1986) 10, 23, 24, 25

sranch 6000 v. NLRB, 595 F.2d 808.

(D.C. Cir. 1979) 16

Hines v. Anchor Motor Freight, Inc.,

424 U.S. 554 (1976) 18

Ratkosky v. United Transportation Union.

843 F.2d 869 (6th Cir. 1988) 1S, 17, 19

Ruzicka v. General Motors Corp.,

$23 F.2d 306 (6th Cir. 1975) 1S, 17

Vaca v. Sipes, 386 U.S. 171, 87

S. Ct. 903, 17 L.Ed.2d 842

(1967) 1%

Statutes:

45 U.S.C. § 151 2

45 U.S.C. § 151, First 4

45 U.S.C. § 151, Fifth 3

45 U.S.C. § 152, Seventh 2. 81

45 U.S.C. § 156 2.9. t.. t2

Federal Rules Civil Procedu

56 (c) and }

Vill

OFFICIAL AND UNOFFICIAL REPORTS OF

OPINIONS IN THE CASE

Victor G. Grahn; James L. Cooper, Jr.; Richard Daniel

Gallagher; Courtney B.L. Edwards; Ronald Wayne Dabe

v. International Brotherhood of Teamsters Airline

Division, Local 608, affiliated with the International

Brotherhood of Teamsters, Chauffeurs, Warehousemen,

and Helpers of America, AFL-CIO; The International

Brotherhood of Teamsters, Chauffeurs, Warehousemen,

and Helpers of America, AFL-CIO; United Parcel Service

Co.; Independent Pilots Association, Civil Action No.

C89-0983-L(B) (W.D. Ky., 12/12/89).

Victor G. Grahn; James L. Cooper, Jr.; Richard Daniel

Gallagher; Courtney B.L. Edwards; Ronald Wayne Dabe

v. International Brotherhood of Teamsters Airline

Division, Local 608, affiliated with the International

Brotherhood of Teamsters, Chauffeurs, Warehousemen,

and Helpers of America, AFL-CIO; The International

Brotherhood of Teamsters, Chauffeurs, Warehousemen,

and Helpers of America, AFL-CIO; United Parcel Service

Co.; Independent Pilots Association, No. 92-5286 (6th

Cir. 1992).

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

VICTOR G. GRAHN; JAMES L. COOPER, JR.; RICHARD

DANIEL GALLAGHER; COURTNEY B.L. EDWARDS;

DASECPE ED WOON TE PERS BPPRIINS oicennuscaveasuccapamennonns PETITIONERS

Ws

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

AIRLINE DIVISION, LOCAL 608, affiliated with the

International Brotherhood of Teamsters, Chauffeurs,

-Warehousemen, and Helpers of America, AFL-CIO; THE

INTERNATIONAL BROTHERHOOD OF TEANSTERS,

CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF

AMERICA, AFL-CIO; UNITED PARCEL SERVICE CO.;

INDEPENDENT PILOTS ASSOCIATION........ RESPONDENTS

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JURISDICTION

The United States Court of Appeals issued its opinion on

January 5, 1993, affirming the decision of the United States

2

District Court. District Court jurisdiction was based on 28 U.S.C.

§ 1331.

The jurisdiction of this Court to review this Petition for

Writ of Certiorari is invoked under Title 28, United States Code,

Sections 1254(1) and 2101(c), and Supreme Court Rules 13 and

14.

CONSTITUTIONAL PROVISIONS, STATUTES AND

RULES INVOLVED IN THE CASE

This case involves the Railway Labor Act, 45 U.S.C. §

151 et seq. ("RLA"), which provides at § 152, Seventh:

Seventh. Change in pay, rules or working conditions .

contrary to agreement or to section 156 forbidden. No

carrier, its officers or agents shall change the rates of pay,

rules, or working conditions of its employees, as a class as

embodied in agreements except in the manner prescribed

in such agreements or in section 6 of this Act [45 USCS

§ 156].

Which provides at § 156:

Procedure in changing rates of pay, rules, and working

conditions. Carriers and representatives of the employees

shall give at least thirty days’ written notice of an intended

change in agreements affecting rates of pay, rules, or

working conditions, and the time and place for the

beginning of conference between the representatives of the

parties interested in such intended changes shall be agreed

upon within ten days after the receipt of said notice, and

said time shall be within the thirty days provided in the

notice. In every case where such notice of intended

change has been given, or conferences are being held with

reference thereto, or the services of the Mediation Board

have been requested by either party, or said board has

proffered its services, rates of pay, rules, or working

3

conditions shall not be altered by the carrier until the

controversy has been finally acted upon as required by

section 5 of this Act [45 USCS § 155], by the Mediation

Board, unless a period of ten days has elapsed after

termination of conferences without request for or proffer

of the services of the Mediation Board.

This case also involves Fed.K.Civ.P. 56 which holds at

paragraphs (c) and (e) that if the adverse parties’ response, by

affidavits or as otherwise provided in this rule (pleadings,

depositions, answers to interrogatories, and admissions on file) sets

forth specific facts showing that there is a genuine issue as to any

material fact, summary judgment is not appropriate. (Appendix

22a)

STATEMENT OF THE CASE

Plaintiffs are employees as defined in 45 U.S.C. § 151

Fifth and seek injunctive relief, damages, declaratory judgment and

other appropriate relief pursuant to the Railway Labor Act, 45

U.S.C. § 151 et seq.

Plaintiffs’ underlying Complaint arises out of the

Teamsters Union’s' breach of its duty of fair representation and

the company’s breach of the collective bargaining agreement.

Defendants have changed the working conditions of the Plaintiffs

and have changed the language of the collective bargaining

agreement depriving Plaintiffs of their rightful seniority status.

Plaintiffs allege this was effected in violation of the terms of the

collective bargaining agreement, in violation of the provisions of

the RLA, and in breach of the unions’ duty of fair representation

regarding contract changes.

Ris : m :

Teamsters Union" when used, will refer to Teamsters International,

and Teamsters Local 608, collectively

4

Plaintiffs are employed as flight crewmembers by

Defendant United Parcel Service Co. (UPS Co.) a wholly owned

Subsidiary of United Parcel Service of America, Inc. (UPS

America), a holding and management company. UPS Co. is a

carrier within the meaning of the RLA 45 U.S.C. § 151, First.

Until August 24, 1987, when UPS? announced its decision

to assume operational control of its aircraft, UPS contracted with

four contract carriers to provide air crews and maintenance crews

for the planes owned by the company and leased to the contract

carriers.

Teamsters International, in conjunction with its affiliate,

Local 608, acted as representative for the flight crewmembers in

negotiating a Collective Bargaining Agreement between the flight

crewmembers and the company.’ Also negotiated at this time,

and incorporated in Article 4 of the Supplemental Agreement, was

the "Transition Letter of Agreement" to cover, among other issues,

special seniority issues during the transition period.‘

The Transition Letter of Agreement was negotiated to

"provide the addition of complete crews to the Crewmembers

Seniority List in an orderly manner during the return of aircraft

to the Company from contractors."

e+ UPS" when used, will refer to UPS America and its wholly owned

subsidiaries

5This contract is entitled "Flight Crewmember Supplemental Agreement

to the National Master UPS Collective Bargaining Agreement.”

“The “transition period” refers to the period from August 1987, when

UPS first began hiring flight crewmembers, through calendar year 1988

5

The Transition Letter of Agreement assures that employees

hired from the four contract carriers’ during the transition period

be given a preferential seniority status designated Group I.°

Paragraph A of the Transition Letter of Agreement states that:

Group I shall be former Company contractor

crewmembers who were flying for a Company

contractor on or after September 1, 1987, and also

crewmembers who are acquired as a result of a

merger with, or acquisition of, another carrier.

The seniority position of Group I flight crewmembers

relative to each other is also defined in paragraph A of the

Transition Letter of Agreement, as follows:

Group I crewmembers will be hired in position by

status and aircraft type. Group I contractor

crewmembers will be positioned on the

administrative list by those hired September 1,

1987 and earlier, arranged by date of birth

followed by those hired after September 1, 1987,

arranged by date of birth.

As defined by the terms and conditions of the Transition

Letter of Agreement, each of the Plaintiffs are Group I employees

hired by a contract carrier prior to September 1, 1987.

UPS hired its first crewmembers on January 18, 1988.

The first seniority list was developed and published in January,

1989. after the transition period had been completed. A thirty-day

>The four contract carriers referred to in the Transition Letter of

Agreement are: Evergreen Airlines, Inc.; Interstate Airlines, Inc.; Onon Air,

and, Ryan Aviation/PHH Air.

6

Group II crewmembers are employees hired from sources other than

the four contract carriers, and this category is not an issue in the present action.

6

period was allowed for employees to review and object to the

seniority list. According to a memo from William Ferchak, who

became Trustee of Teamsters Local 608 in late 1988’, some

eighteen grievances were filed within the thirty-day period alleging

violations of Article 4 (Seniority) of the Collective Bargaining

Agreement and alleging violations (Seniority) of the Transition

Letter of Agreement.

Although Plaintiffs were former contract _ flight

crewmembers with Orion Air, hired and flying for the contract

carrier before September 1, 1987, they were incorrectly positioned

on the seniority list with those employees hired by the contract

carriers after September 1, 1987.

Article 17 of the flight crewmembers Supplemental

Agreement states that:

In compliance with Section 204, Title II of the

Railway Labor Act, as amended, is hereby

established a System Board of Adjustment for the

purpose of adjusting and deciding disputes which

may arise under the terms of this Agreement and

any amendment or additions thereto and which are

properly submitted to it, which Board shall be

known as “United Parcel Service Crewmembers

System Board of Adjustment", herein referred to

as the "Board."

Pursuant to the terms of the contract, a System Adjustment

Board hearing was held in Louisville, Kentucky, in February, 1989

to hear the above-referenced grievances. The 4-0 decision of the

February System Adjustment Board interpreted the contract

language regarding seniority to mean that:

;

Dan Darrow, a Teamster International employee was Trustee prior to

Ferchak

a

7

All crewmembers hired by the Company in 1988

who were previously working for a company

contractor and who were hired by the contractor

prior to September 1, 1987, regardless of the date

of IOE compietion, shall be placed in Group I;

followed by all crewmembers hired by the

Company in 1988 who were previously working

for a company contractor and who were hired by

the contractor on or after September 1, 1987.

There shall be no retroactive compensation.

A UPS crewmember revised seniority list was issued

subsequent to the Board decision reflecting Plaintiffs’ correct

seniority position in Group I, which positions them before those

contract crewmembers hired by the contract carriers after

September 1, 1987.

Article 17 of the flight crewmembers Supplemental

Agreement clearly states that:

The Board shall have jurisdiction over all disputes

growing out of grievances or Out of the

interpretation or application of any of the terms of

this Agreement... The Board shall be competent to

hear the disputes properly submitted to it and

decide said disputes by a majority vote of all

members of the Board. Decision of the Board

shall be final and binding upon the parties hereto.

(Emphasis added)

The February decision of the System Adjustment Board

was grieved by employees alleging their seniority was affected by

the Board’s decision. Although the Board was bound by the terms

of the CBA.to deny these grievances as without merit, since the

February Board decision which interpreted the contract language

regarding seniority was final and binding on all parties, a special

unannounced June System Board was called by William Ferchak,

8

Teamster Trustee of Local 608, and by Neil Konietzko, Air

Region Labor Relations Manager for UPS, to specifically hear

those grievances.* After hearing the grievances of those whose

seniority was allegedly negatively affected by the February Board

decision, the June System Board issued a communication dated

June 21, 1989, stating that:

This case is referred back to a joint company-

union committee for resolution.

On August 2, 1989, without affording Plaintiffs any

hearing, or opportunity to be heard, the company and the union

issued an “Agreement” signed by William Ferchak and Neil

Konietzko attempting to add new contract terms, and language

altering the Collective Bargaining Agreement. As the result of this

invalid decision, Plaintiffs were demoted to a new seniority

classification arbitrarily entitled "Group I-A," a classification not

authorized by the contract or the Transition Letter of Agreement.

UPS issued a revised crewmember seniority list on August 2,

1989, simultaneous with the so called "August Agreement",

reflecting this confusing, improper and invalid decision.

Subsequent to the “August Agreement”, Plaintiffs filed

grievances requesting that the Collective Bargaining

Agreement/Transition Letter of Agreement, as interpreted by the

February System Board, be adhered to and that the arbitrary and

invalid “August Agreement" be voided. Plaintiff Grahn’s

grievance was denied by the company with the curt statement that

there was "no contract violation." The union’s response to

Grahn’s grievance was that the grievance was "settled." The union

has refused Plaintiff Grahn any meaningful appeal. Further, the

Sr erchak (Teamsters Local 608) and Konietzko (representing UPS) were

two of the four System Board members who rendered the unanimous February

Board decision which definitively interpreted the contract language regarding

seniority. The other two were Lee Wallace, UPS Flight Operations Manager,

and Robert Miller, union steward.

ee

9

union has refused to process the grievances filed by the other

Plaintiffs. Plaintiffs have thus exhausted all administrative

remedies. Since the union has indicated that its decision is fixed,

any administrative remedies would be futile and are not required.

The Memorandum and Order of the District Court, dated

June 18, 1991,states at page 18a of the Appendix:

The record shows that the final disposition of the

grievance heard in June by the Board was not

accomplished by a Board decision in the manner

contemplated in Article 17(E) of the Supplemental

Agreement. There is no record that the committee ever

returned to the board to argue or to support its

recommendation, but rather the evidence suggests that the

committee submitted the recommeidation directly to the

union and the company.“™?” It does not appear that any

formal request to negotiate such an agreement was made

by either signatory or that the procedures mandated by the

Railway Labor Act, Section 156 for changing collective

bargaining agreements were followed in its adoption.

€\12 There is no written record of the Board's

consideration of the recommendation as required

in Article 17(M) of the Supplemental Agreement.

The June 18, 1991, District Court Memorandum and Order

further states:

It is undisputed that the proceedings and decision

of the February Board conformed with Article 16

and therefore the Board which convened in June

did not have the authority to settle the dispute

before it. (at 19a)

Although the District Court found that “the Board which

convened in June did not have the authority to settle the dispute

a

10

before it," the Court held the motions of the parties for summary

judgment in abeyance. Further, the District Court granted

Defendant Local 608, or any other Defendant sixty days in which

to brief and submit to the Court any memoranda or evidence

regarding apparent authority as to "whether the company and union

representatives were authorized to create a ‘side agreement’

purporting to interpret a provision of the Supplemental Agreement

resolved previously by a Board ruling."

Detendants Teamsters International Union, Teamsters

Local 608, and UPS, filed supplemental memoranda on August 19,

1991. Plaintiffs filed their motion for leave to respond to

Defendants’ supplemental memoranda, and duly filed their

responses thereto.

On January 24, 1992, the Court entered its Memorandum

and Order that the motion of the Plaintiffs for summary judgment

against the Defendants be and is hereby denied: and further that

the motion of the Defendants for summary judgment on the claims

of the Plaintiffs against them be granted and Plaintiffs’ claims be

dismissed with prejudice. (Appendix 4a)

The District Court held that:

The afiiants attest to the local union officers’

authority to negotiate binding amendments to the

Flight Crewmember Supplemental Agreement to

the CBA. Plaintiffs do not controvert the

affidavits, but argue instead that even if the local

union had authority to enter into binding side

agreements, the members of the "joint company-

union committee" who recommended the change

in the contractual provision were "self-serving."

Plaintiffs allegations’ are not sufficient to

withstand the defendants’ motion for summary

judgment. Anderson v. Liberty Lobby, Inc., 477

il

U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202

(1986). (Appendix 7a)

The District Court did not address, nor give weight to the

pleadings, depositions, answers to interrogatories and admissions

on file which clearly controverted Defendants’ affidavits, which

clearly showed that Plaintiffs’ legal argument and the facts

presented supported Plaintiffs’ allegations that the union acted

arbitrarily, discriminatorily, and in bad faith.

The District Court also failed to address the issue before

it, that even if company and union representatives were authorized

to create a Side agreement purporting to interpret a provision of the

Supplemental Agreement resolved previously by a System Board

of Adjustment ruling, the procedures Defendants engaged in did

not abide by the terms of the CBA, the provisions of the RLA, or

the Union’s duty of fair representation.

Plaintiffs appealed the decision of the District Court. The

Sixth Circuit affirmed on January 5, 1993, holding that it found

"no errors warranting reversal." (Appendix 1a)

I. THE DISTRICT COURT DECISION ENTERING

SUMMARY JUDGMENT DISMISSING PLAINTIFFS

COMPLAINT WAS ARBITRARY AND IN ERROR

AS A MATTER OF LAW BECAUSE IT FAILED TO

ADDRESS THE ISSUE SET FORTH IN PLAINTIFFS’

COMPLAINT AND IN THE PARTIES’ MOTIONS

FOR SUMMARY JUDGMENT.

The Railway Labor Act forbids changes in pay, rules or

working conditions contrary to the collective bargaining agreement

and contrary to 45 U.S.C. § 156. (45 U.S.C. § 152, Seventh)

i2

Article 2, Section | of the Master Agreement’ states:

No new Supplements, Riders or Addenda to this

Agreement shall be negotiated by any of the

parties hereto, unless otherwise agreed to by the

Employer and the Nationai Negotiating

Commitiee. Any Supplement, Rider or Addendum

not agreed to by the National Negotiating

Committee will be null and void. (Emphasis

added)

The “August Agreement” changing the terms of the

Transition Letter of Agreement, clearly, was not ratified nor

agreed to by the National Negotiating Committee and is not only

null and void, it is in violation of the CBA which does not provide

for a committee, of any number, or any make-up, to negotiate a

change in contract language regarding pay, rules or working

conditions.

Defendant Teamsters Union has stated that the August

document was not an "Agreement", but was merely an

investigation of all the “evidence compiled." (Deposition of

William Ferchak, pp. 66, 68-69). UPS contends that the "August

Agreement" was negotiated by the company and the union.

(Deposition of Lee A. Wallace, p. 140). Regardless of how it is

characterized, the "August Agreement" is invalid. The Collective

Bargaining Agreement does not provide for a "joint company-

union committee" to unilaterally and arbitrarily create new contract

language, nor does it allow for secret company-union negotiations

to change contract language.

Section 156 of the RLA sets forth certain procedures in

changing rates of pay, rules and working conditions. These

*The Flight Crewmembers Supplemental Agreement does not address

the issue of mders or addenda to the contract

—— ————“‘<sirWt:;~*~*~t~t~—~”

13

include written notice of the intended change, and agreement

between the representatives of the parties interested in such change

as to the time and place for conferencing as to the intended

change. Defendants neither complied with the terms of the CBA,

nor the provisions of the RLA. instead, they arbitrarily,

discriminatorily and in bad faith, changed Plaintiffs’ working

conditions with the publication of the document entitled "August

Agreement.”

The issue that was placed before the District Court is

whether the Union breached its duty of fair representation:

a) when it reconsidered the final and binding decision

of the February System Board of Adjustment

which definitively interpreted the contract language

regarding seniority,

b) by calling a special June System Board to hear

meritless and untimely grievances regarding a

System Board Decision which was final and

binding on all parties;

9) by referring those “new grievances” to a “joint

company-union committee” of four crewmembers

for resolution; "°

d) by approving and signing the “recommendation”

of the invalid “committee” as an agreement

between the Company and the Union, which

ba “joint company-union committee” is not an alternative provided for

in the CBA, nor can it be found in the Railway Labor Act When the Board

cannot reach a decision by majority vote, it 1s bound by the terms of the contract

to appoint an independent arbitrator Decisions of the Board with the arbitrator

are also final and binding on the parties. CBA Supplemental, Article 17, Section

E

————————

14

"Agreement" arbitrarily and discriminatorily

changed Plaintiffs’ working conditions.

Plaintiffs have alleged and shown, and the District Court

ruled, that the Board did reconsider its decision without having the

power to do so. This lower court ruling gives rise to at least a

triable issue of material fact as to the arbitrariness of that decision

Nonetheless, the court below erroneously held that the real issue

was, "Whether company and union representatives were authorized

to create a ‘side agreement’ purporting to interpret a provision of

the Supplemental Agreement resolved previously by a Board

ruling.” As Plaintiffs have argued, neither party could

“reinterpret” the provision resolved by the February Board, that

decision being final and binding on both parties. The only means

by which the provision could be found to have another meaning

was to change that provision! Defendants have admitted the

language of the Transition Letter of Agreement was changed by the

August Agreement. (Deposition of Neil Konietzko, p. 80)

The determination as to whether the company and union

were cloaked with actual or apparent authority to change by “side

agreement” the working condition provisions of the CBA,

Supplement, or Transition Letter, is absolutely immaterial to the

decision required of the District Court.

Even assuming, arguendo, that they were so authorized,

the real question remains whether the procedure engaged in to

effect those changes and amendments ultimately did or did not

abide by the terms of the CBA, the provisions of the Railway

Labor Act, and the unions’ duty of fair representation to the

Plaintifts

This issue, which 1s the basis of Plaintitts’ Complaint, was

not addressed by the District Court.

15

iI. PLAINTIFFS HAVE PRESENTED MATERIAL

FACTS RAISING GENUINE ISSUES AS TO

DEFENDANT TEAMSTERS UNION’S BREACH OF

ITS DUTY OF FAIR REPRESENTATION,

On January 18, 1991, each of the four Defendants filed its

Motion for Summary Judgment.

A Defendant Teamsters International.

In its Memorandum in Support of Motion for Summary

Judgment, Defendant Teamsters International stated at page 22

that

The standard by which the Union shall be judged

is whether it acted “arbitrarily, discriminatorily or

in bad faith.” Ruzicka v. General Motors Corp.,

523 F.2d 306, 309 (6th Cir. 1975), reh’g denied,

528 F.2d 912 (1975); Ratkosky v. United

Transportation Union, 843 F.2d 869, 876 (6th

Cir. 1988).

Teamsters International further stated, at page 21, that:

The Union did not participate in the committee's

deliberations nor did the Union have any input

into the criteria utilized which formed the basis for

the recommendation. No record evidence exists to

the contrary. As a result, Plaintiffs cannot meet

their burden of showing that their allegation

regarding the joint committee was “arbitrarily

discriminatory or self-serving.” More

importantly, however, the Plaintiffs fail to show a

connection to the Union which can even arguably

rise to the level of unlawful conduct on the

Union's part.

16

Clearly, this is an admission of the Union's abnegation of

its responsibility but it does not relieve the Union of its duty to

Plaintiffs. When a union’s conduct is an abdication of the

representative function that violates the duty of fair representation,

it constitutes an unfair labor practice under the Act. Branch 6000

v. NLRB, 595 F.2d 808, 816 (D.C. Cir. 1979).

Although Defendant Union erroneously states at page 18,

that neither the System Board of Adjustment nor the arbitrarily

established joint “committee” “owe the Plaintiffs a duty of fair

representation within the meaning of the Railway Labor Act as

interpreted,"

The union has_ responsibility as exclusive

bargaining agent to formulate the employees’

position on terms and conditions of employment.

This responsibility may be delegated by the union

membership...However, the delegatee, once

Selected, must in turn function as a representative

for all the employees in the bargaining unit. If a

representative's negotiating decisions are motivated

solely by self-interest, then there is a breach of the

duty of fair representation. The same result

attains when the decisionmaking function is

delegated to a group of employees with the

understanding that their actions will be motivated

solely by their own personal considerations. Id at

811-812.

Defendant Teamsters International concluded that “absent

any showing...that the Union here acted on the basis of arbitrary

factors such as race, personal animosity or sheer numbers of

employees in a given group, it cannot be found to have breached

its duty of fair representation." (At pages 26 and 27).

However, Plaintiffs have shown that precisely because of

such political pressure from another, larger group of flight

‘eee eee

17

crewmembers, the Union called a special June System Board of

Adjustment meeting to hear these new grievances, referred the

grievances to a special committee of four crewmembers, and

accepted the "recommendation" of this committee of four

crewmembers as the Union’s own “negotiation” with the company

regarding the issue of seniority. The rule announced in Vaca v

Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L.Ed.2d 842 (1967), that

4 union breaches its duty of fair representation if its actions are

either arbitrary, discriminatory, or in bad faith, applies to all union

activity, including contract negotiation. By its conduct, the union

clearly breached its duty to Plaintiffs, and violated the standards as

set out in the 6th Circuit decisions in Ruzicka, and Ratkosky and

the Supreme Court decision in Vaca vy, Sipes, 386 U.S. 171

(1967).

B. Defendant Teamsters Local 608.

In its Memorandum in Support of Motion for Summary

Judgment, Defendant Teamsters Local 608 stated at page 19 that:

It is well established that a claim of unfair

representation requires a showing of bad faith,

discrimination, or arbitrary conduct on the part of

the Union. Ratkosky v. United Transportation

Union, 843 F.2d 869, 876 (6th Cir. 1988), citing

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

At page 24 of its Memorandum, Defendant Teamsters

Local 608 stated that:

After the February-March system board issued its

decision, over 150 pilots signed a petition

protesting the decision which was presented to the

Union.

At page 25 of its Memorandum, Defendant Teamsters

Local 608 stated that:

18

Not only did representatives of those

crewmembers who grieved the March decision

appear and make lengthy presentations at the June

hearing, but, at the Union’s invitation, two

crewmembers who made major presentations at the

February-March hearing appeared and reiterated

their presentations at the June hearing."

Admitting, at page 31 of its Memorandum, that,

"Employees have ‘no absolute right to have [their] grievances

taken to arbitration’ by their Union Representatives, Vaca v. Sipes,

386 U.S. 171, 191 (1967); see also Hines v. Anchor Motor

Freight, Inc., 424 U.S. 554, 567 (1976)," the union, nonetheless,

acquiesced to a majority group and heard the new grievances at a

special June System Board of Adjustment.

Admitting at page 27 that, "the Union and UPS

incorporated the Committee’s recommendation into what ultimately

became the August Agreement,” Teamsters Local 608 went on to

categorize this action by the Union as a "reasonable and logical

approach to the dispute." Nothing can be more unreasonable or

illogical than the union’s arbitrary and discriminatory conduct.

At page 26 of its Memorandum in Support of Motion for

Summary Judgment, Local 608 stated that the dispute was

"irreconcilable." In reality, the dispute had been reconciled by the

February System Board. The Board’s decision was consistent with

the language of the collective bargaining agreement and was final

and binding on all parties. Also, on page 26 of its Memorandum,

Local 608 characterized the August 2, 1989, agreement, as a

"compromise." The August agreement can hardly be considered

a compromise, when all members of the “joint company union

11 .

These two. union-invited crewmembers are the same_ two

crewmembers the union appointed as “committee” members

19

committee" benefitted from their "recommendation" at the expense

of Plaintiffs.

The acceptance and implementation of such a biased

agreement by Local 608 is clearly an arbitrary and discriminatory

action made in bad faith.

ce. Defendant UPS.

In its Memorandum in Support of Motion for Summary

Judgment, Defendant UPS stated at page 23 that:

The standard by which Local 608’s conduct is to

be measured has been set forth by the Sixth

Circuit Court of Appeals in Ratkosky v. United

Transportation Union, supra. In order to establish

a breach of the duty of fair representation,

Plaintiffs must make "a showing of bad faith,

discrimination, or arbitrary conduct on the part of

the union.”

Defendant UPS further stated at page 25 that:

Over one hundred and fifty crewmembers who had

heen moved down on the seniority lists filed a

petition protesting the March 9, 1989 System

Board decision as being contrary to the contract

and to what they had been told when hired.

Neil Konietzko and William Ferchak decided to

call a special System Board of Adjustment to hear

the grievances which protested the March 9, 1989

System Board decision. (Konietzko, page 31.)

20

D. Defendant Independent Pilots Association,

In its Memorandum in Support of Motion for Summary

Judgment, Defendant Independent Pilots Association stated at

pages 4 and S that:

Initially, a four member System Board composed

of Company and Union members agreed with this

interpretation and sustained the grievances. UPS

Exh. 10.

The decision required reconfiguration of seniority

placement and, naturally, provoked grievances

from adversely affected pilots. Indeed, over one

hundred grievances were filed against the System

Board’s decision. Grahn Dep. 68.

Although admitting that a decision of the February System

Board regarding seniority would “naturally provoke grievances

from adversely affected pilots," the fact that over 100 grievances

were filed, is suggested by Defendant IPA to be the significant

factor as to why the Union breached its duty of good faith toward

Plaintiffs and arbitrarily and discriminatorily changed the contract

language.

Union Trustee William Ferchak, when asked in his

deposition what evidence he relied on in adopting the August

Agreement, replied that he relied on the letters from the four

contract negotiators’? and the recommendations of the committee.

(Ferchak deposition, pages 47-49.) Ferchak also testified at pages

43-45 of his deposition that he considered Greene’s letter as

improper evidence, doubted the credibility of Landsman’s

"The four contract negotiators were Richard Greene, Peter Landsman,

Bill Reid and Bill Mann (former IPX employees, who held the first 25 seniority

numbers.

21

testimony, and felt that Mann “at that particular time was under a

lot of duress because the rank and file was getting on him for the

contract and some other things that he had done, so I couldn't put

too much stock into any of them, to be very truthful." Yet, in

spite of this improper evidence and non-credible testimony, the

Union Trustee, William Ferchak, issued the August Agreement in

conjunction with the employer, UPS, which, (as admitted by the

Defendant UPS) changed the contract language and the working

conditions of the Plaintiffs. To allow four crewmembers, not

authorized by the contract, and with self-serving interests to

"weigh" the decision of the February System Board was an

abdication of the Union's representative function and clearly

violated the duty of fair representation. This constitutes an unfair

labor practice.

Although both Plaintiffs’ Complaint and the Defendants’

Motions for Summary Judgment all dealt with the issue as to

whether the Union breached its duty of fair representation and

whether the Company breached the collective bargaining

agreement, the District Court in its Memorandum and Order of

June 18, 1991, granted Defendant Local 608, or any other

Defendant sixty days in which to brief and submit to the Court any

memoranda or evidence regarding an entirely different issue, the

apparent authority as to “whether the company and union

representatives were authorized to create a side agreement

purporting to interpret a provision of the supplemental agreement

resolved previously by a Board ruling.” All Defendants responded

to the invitation of the District Court. Plaintiffs filed a motion for

leave to respond to the submitted memoranda.

This side issue, newly presented by the District Court, in

no way supersedes the issues in Plaintiffs’ Complaint and the

issues before the Court; breach of duty of fair representation,

breach of the CBA. However, in its Order of January 24, 1992,

granting Defendants’ Motion for Summary Judgment against the

Plaintiffs and denying Plaintiffs’ summary judgment against the

Defendants, the District Court disregarded the pleadings,

22

depositions, answers to interrogatories, and admissions on file

regarding the issues of bad faith and breach of contract. The

Court held that Plaintiffs did not controvert Defendants’ affidavits

regarding the extraneous issue of the Union’s authority to create

a side agreement purporting to interpret a provision of the

supplemental agreement resolved previously by a System Board of

Adjustment ruling.

The District Court did not address the issue of whether the

procedures the Defendants engaged to effect such changes, if

indeed they were authorized to make them, did or did not abide by

the terms of the collective bargaining agreement, the provisions of

the Railway Labor Act, and a union’s duty of fair representation,

il. THE DISTRICT COURT DID NOT ADDRESS THE

ISSUE BEFORE IT BUT INSTEAD DISMISSED

PLAINTIFFS’ COMPLAINT BASED ON AN ISSUE

IRRELEVANT TO THE CASE.

The issue before the Court was whether Defendant Union

breached its duty of fair representation and whether Defendant

UPS breached the collective bargaining agreement.

Clearly, the Court misunderstood or misinterpreted the

issues. The Complaint alleges and the parties’ Motions for

Summary Judgment argue the issue of whether the Union breached

its duty of fair representation and whether the company breached

the collective bargaining agreement. The new “issue” presented

by the District Court is irrelevant to the Complaint and to the

Motions for Summary Judgment before it.

Plaintiffs maintain that even if the Union had the authority

to reconsider a final and binding decision, or whether the company

and the union representatives were authorized to create a side

agreement purporting to interpret a provision of the supplemental

agreement resolved previously by a Board ruling, the issue placed

before the Court is whether the procedures engaged in by the

'

23

Defendants to effect such changes and amendments ultimately did

or did not abide by the terms of the collective bargaining |

agreement, the provisions of the Railway Labor Act, and a union’s

duty of fair representation regarding contract changes.

Citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

106 S. Ct. 2505, 91 L.Ed.2d 202 (1986), the District Court held

that Plaintiffs’ allegations are not sufficient to withstand the

Defendants’ motion for summary judgment. However, the Court

does not identify to which allegations it refers. The allegations in

the Complaint, the allegations in Plaintiffs’ Motion for Summary

Judgment, the allegations in Plaintiffs’ Response and Objection to

Defendants’ Motions for Summ.» Judgment, or Plaintiffs’

Response to Defendants’ Supplemental Memoranda and Evidence

regarding the issue of apparent union authority to enter into

binding side agreements.

In Anderson v. Liberty Lobby, Inc., 477 U.S. at page 248,

regarding the issue as to materiality, the court held that:

As to materiality, the substantive law will identify

which facts are material. Only disputes over facts

that might affect the outcome of the suit under the

governing law will properly preclude the entry of

summary judgment. Factual disputes that are

irrelevant or unnecessary will not be counted. See

generally 1OA C. Wright, A. Miller, & M. Kane,

Federal Practice and Procedure, Section 2725, pp

93-95 (1983).

...More important for present purposes, summary

judgment will not lie if the dispute about a

material fact is "genuine," that is, if the evidence

is such that a reasonable jury could return a

verdict for the nonmoving party.

24

In the present action, Plaintiffs allege that the Union

breached its duty of fair representation and the company breached

the collective bargaining agreement. Defendants filed a motion for

summary judgment arguing that the Union’s action was not

arbitrary, discriminatory or in bad faith. As nonmoving or

adverse parties, Plaintiffs responded, based on the pleadings,

depositions, answers to interrogatories, and admissions on file,

showing that there is indeed a genuine issue as to material fact and

that the moving parties, Defendants Union and company, are not

entitled to summary judgment as a matter of law.

In Anderson, the Supreme Court held that, “at the

summary judgment stage the judge’s function is not himself to

weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial."

The court in Anderson further stated at page 255 that:

Our holding that the clear and convincing standard

of proof should be taken into account in ruling on

summary judgment motions does not denigrate the

role of the jury. It by no means authorizes trial

on affidavits. Credibility determinations, the

weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury

functions, not those of a judge, whether he is

ruling on a motion for summary judgment or for

a directed verdict. The evidence of the nonmovant

is to be believed and all justifiable inferences are

to be drawn in his favor. Adickes, 398 U.S., at

158-159, 26 L.Ed.2d 142, 90 S. Ct. 1598.

Neither do we suggest that the trial court should

act other than with caution in granting summary

judgment or that the trial court may not deny

Summary judgment in a case where there is reason

to believe that the better course would be to

proceed to a full trial. Kennedy v. Silas Mason

25

Co., 334 U.S. 249, 92 L.Ed. 1347, 68 S. Ct.

1031 (1948).

The Court of Appeals issued its affirming decision on

January 5, 1993, stating only that, "having carefully reviewed the

record and the issues presented in the appellate briefs and the

arguments of counsel, we find no error warranting reversal."

In Anderson v. Liberty Lobby, Inc., a libel action brought

by a public figure, Plaintiff was required under the first

amendment to prove by clear and convincing evidence that the

defendant acted with actual malice. The court held that:

...{A] court ruling on a motion for summary

judgment must be guided by the New York Times

"clear and convincing" evidentiary standard in

determining whether a genuine issue of actual

malice exists - that is, whether the evidence

presented is such that a reasonable jury might find

that actual malice had been shown with convincing

clarity. Because the Court of Appeals did not

apply the correct standard in reviewing the District

Court’s grant of summary judgment, we vacate its

decision and remand the case for further

proceedings consistent with this opinion.

In the present action, Plaintitts allege that the Defendant

union breached its duty of fair representation and the Defendant

employer breached the collective bargaining agreement. The

evidentiary standard in determining whether a genuine issue of

breach of duty and breach of contract exists is whether the union

acted arbitrarily, discriminatorily, or in bad faith and whether the

Company’s actions were contrary to the terms of the CBA.

The District Court did not address the issue before it, but

instead, ruled on an “issue” irrelevant to the case, and dismissed

26

Plaintiffs’ Complaint based on that erroneous ruling. Plaintiffs

appealed the decision of the District Court.

The issue before the Court now is whether the Court of

Appeals, in affirming the District Court decision, did or did not

apply the correct standard in reviewing the District Court’s grant

of summary judgment.

CONCLUSION

For these reasons, a Petition for a Writ of Certiorari

should therefore be granted, and this Court should vacate the

decision below, and remand the case for further proceedings in

light of the stated issues before the District Court.

Respectfully submitted,

Hollis L. Searcy

Attorneys at Law

Republic Building, Suite 400

429 West Muhammad Ali Blvd.

Louisville, Kentucky 40202

(502) 582-1100

COUNSEL FOR PETITIONERS