Petition for Writ of Certiorari — Southwest Airlines Co. v. Fennessy

Supreme Court, 0.8.

FILED

961300 FEB 1 41997

No. QEFICE OF THE CLERK

IN THE

Supreme Court of the United States

October Term, 1996

SOUTHWEST AIRLINES Co.,

Petitioner

V.

PATRICK FENNESSY,

Respondent.

On Petition for Writ of Certiorari from the

United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Of Counsel:

WELLS PINCKNEY & MCHUGH J. JOE HARRIS

A Professional Corporation 800 One Alamo Center

800 One Alamo Center 106 S. St. Mary’s St.

106 S. St. Mary’s St. San Antonio, TX 78205

San Antonio, TX 78205 Telephone: (210) 226-1166

Telecopier: (210) 226-1133

Attorney for Petitioner

PRL E TRIES Nines BE em ony

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QUESTION PRESENTED FOR REVIEW

Whether a Railway Labor Act system board of adjustment

has exclusive initial jurisdiction of an employee’s claim of

wrongful discharge in violation of section 152, Fourth of the

RLA?

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ALL PARTIES TO THE PROCEEDING

The caption of the case contains the names of all parties to

the proceeding. Southwest Airlines Co. is a Texas

corporation. It has no parent companies, subsidiaries or

affiliates that have issued shares to the public.

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TABLE OF CONTENTS

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

All Parties to the Proceeding ............... ii

WEE IE fo 5 ark a OS Db oes hee Vv

Citation of Official Report of Opinion .......... 1

Statement of Basis for Jurisdiction ............ l

Statutes Involved in the Case 2... 25. ca ee ee. 2

pens OF ie CN ss a a AS. 2

PEE IE BOEEY oS BR Sa es 3

Bevor of te Ning Circuit ee ee 3

Important Question of Federal Law Which Has Not,

But Should Be, Settled by this Court ......... 4

Traditional Minor Dispute Analysis As Applied in

Norris Is Inadequate to Statutory Claim Presently

I ME No ksi se ail g Reo eae ee 5

Function and Relationship of System Boards of

Adjustment and Federal Courts ............ 7

Competence of System Boards ............. 9

Statutory and Judicial Safeguards ........... 12

iv i

COMCIREIN 2S ea is DS a ea 8 13

Appendix |

Decision of the Ninth Circuit .......... App. 1 |

Order of the Diswict Cuat .....5 ceaas App. 2 |

Order of the Ninth Circuit Denying Rehearing App. 3 |

Relevant Provisions of the Railway Labor Act App. 4

43 U.S.0. § 19a) ces App. 4.1

QS U.S.C... 9 Tk, FO etre Se o4 App. 4.1

45 U.S.C. § 152, Fourth (partial) .... App. 4.1

45 U.S.C. § 152, Eighth (partial) .... App. 4.2

45 U.S.C. § 153, First (q) (partial ... App. 4.2

45 U.S.C. § 184 (partial) ......... App. 4.3

Vv

TABLE OF AUTHORITIES

Cases

Alexander v. Gardner-Denver Co.

415 U.S. 36, 94S. Ct. 1011 (1974) ....... 9, 10

Atchison, T. & S.F.R.R. v. Buell

480 U.S. 557, 107 S. Ct. 1410 (1987) ........ 4,5

Brotherhood of Locomotive Eng’rs v. Louisville

& N.R.R.

Sea U.S. 33, 83 SCL 1059 (1963)... wk 8k 4

Brotherhood of Locomotive Eng’rs v. Missouri-

Kansas-Texas Ry.

363 U.S. 528, 80S. Ct. 1326 (1960) ......... 8

Brotherhood of R.R. Trainmen v. Chicago R.

& I.R. Co.

Jao U8. 30, 97 @. CL GS (ISA) 6 Oe aS

Burke v. Compania Mexicana de Aviacion

Gee Scam AUER COE GAE. EP) ve oc ke sb we es 8

Consolidated Rail Corp. v. Railway Labor

Exec’s Ass’n

491 U.S. 299, 109 S. Ct. 2477 (1989) ......... 5

Elgin, J.& E. Ry. v. Burley

Seo Us. 711, 65 S: Ce: 1282 1945). . es 5

Fennessy v. Southwest Airlines

7A POG loom coe Car. FD) wo RS PIS 1

vi

Ford Motor Co. v. Huffman

345 U.S. 330, 73S. CR, GT Ge) cca es 12

Gilmer v. Interstate/Johnson Lane Corp.

500 U.S. 20, 111 S. Ct. 1647 (1991) ...... 7, 10

Hawaiian Airlines, Inc. v. Norris

_« OS... BSS) Ce eee tee 2s vs 3-6, 9

Hines v. Anchor Motor Freight, Inc.

424 U.S. 554, 96 S. Ct. 1048 (1976) ........ 13

Lingle v. Norge Div. of Magic Chef, Inc.

486 U.S. 399, 108 S. Ct. 1877 (1988) ......... 6

Mitsubishi Motors Corp. v. Soler Chrysler-

Plymouth, Inc.

473 U.S. 614, 105 S. Ct. 3346 (1985) ..... 6-8, 12

Moses H. Cone Mem. Hosp. v. Mercury Constr.

Corp.

460 U.S. 1, 103.S. Ct: 927 (1963) 6 orien cide wou 5

Roscello v. Southwest Airlines Co.

120 F208 217 CR Bg 0502 He’ ompiivien 8

Steelworkers v. Warrior & Gulf Nav. Co.

363 U.S. 574, GOS. Ce. 15947 GEG). www ee 6

Switchmen’s v. National Mediation Bd.

oa U.S. 297, G65. £4. SS CGS) ws ec ec 8,9

Texas Int’l Airlines, Inc.

68 L.A. 244 (Gruenberg, 1976) ............ 11

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Vii

Trans World Airlines v. Independent Fed’n of

Flight Attendants

489 U.S. 426, 109 S. Ct. 1225 (1989) ....... 8,9

Transportation Union v. Union Pac. R.R.

gue Ue. 857, B7 S. 0X. SP ISS). ww ke. 6

Union Pac. R.R. v. Sheehan

439 U.S. 89, 99 S. Ct. 399 (1978) (per curiam) ... 4

Vaca v. Sipes

386 U.S. 171, 87 S. Ct. 903 (1967) ....... 9, 13

Virginian Ry. v. Railway Employees

aed Wists hats OE es Rs OTD oc eee 7

Wells v. Southern Airways, Inc.

517 F.2d 132 (Sth Cir. 1975), cert. denied, 425

U.S. 914 (1976); 616 F.2d 107 (Sth Cir. 1980) 11, 12

Statutes

ST OE bk os Cr so es ee eee 1

42 U.S.C. §§ 1981, 1981a, 2000e and 2000e-4 .. 10

Railway Labor Act

ay rs ee aw alee ke ae 2

OP Sas Bey BU cae cc wees passim

Re Se eee i ee 6, 11, 12

ET heh Sin ec ce athe te ek 8 Fe It

ae Sie ee ED oe cc the eels 13

Federal Arbitration Act

SR a i ae ne 7

Viii

Federal Employers’ Liability Act

GS Ui. S38 WM ee TTS co CRT SS 4

Title VII of the Civil Rights Act of 1964, as amended

42 U.S.C. § FOS. BO 8 POA SOR 10

Miscellaneous

Elkouri & Elkouri, How Arbitration Works, 4th ed.,

1985-89 Cumulative Supplement, pp. 107-08 ...... 11

NES te

PRA i a ae ene raed

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IN THE

Supreme Court of the United States

October Term, 1996

SOUTHWEST AIRLINES Co.,

Petitioner

V.

PATRICK FENNESSY,

Respondent.

On Petition for Writ of Certiorari from the

United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Citation of Official Report of Opinion

Sought to be reviewed is a decision of the United

States Court of Appeals for the Ninth Circuit, Fennessy v.

Southwest Airlines, 91 F.3d 1359 (9th Cir. 1996).

Statement of Basis for Jurisdiction

The Ninth Circuit rendered its decision en August 7,

1996. (App. 1.) Thereafter, Southwest timely filed a

combined petition for rehearing and suggestion for rehearing

en banc which was denied by the Ninth Circuit by order

dated December 6, 1996. (App. 3.) This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1) to review on a

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writ of certiorari the judgment or decree of the Ninth

Circuit.

Statutes Involved in the Case

Relevant provisions of the Railway Labor Act, 45

U.S.C. § 151 ef seq. are set forth in the Appendix.

(App. 4.)

Statement of the Case

Patrick Fennessy claims that Southwest Airlines Co.

violated section 152, Fourth of the Railway Labor Act, 45

U.S.C. § 152, Fourth, by terminating his employment in

retaliation for his efforts to replace his existing union with a

different one. The district court granted summary judgment

for Southwest, concluding that Fennessy’s exclusive remedy

was through the system board of adjustment. (App. 2.) The

Ninth Circuit reversed. (App. 1.)

Fennessy was employed by Southwest as a ramp agent.

While driving a baggage cart, he struck an aircraft, resulting

in damage to the aircraft and a delay of the flight until it

could be determined whether the aircraft was airworthy.

Thereafter, Southwest conducted a factfinding session which

resulted in the termination of Fennessy’s employment. The

stated reason for Fennessy’s termination was his striking the

aircraft and failing to report it in accordance with Southwest

policy. (App. 1.2.)

Fennessy was a member of the Ramp Operations and

Provisicning Agents ("ROPA"), as required by the collective

bargaining agreement between Southwest and ROPA. ROPA

has been the recognized collective bargaining representative

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for Southwest ramp agents since 1988.' Following the

accident, Fennessy sought and obtained the assistance of the

ROPA representative. Upon his termination, Fennessy filed

a grievance through ROPA and the matter proceeded to a

hearing before a system board of adjustment, consisting of

two members of Southwest’s management and two ROPA

members. The system board of adjustment upheld

Fennessy’s termination. (App. 1.2.)

Fennessy did not seek judicial review of the system board

decision. Rather, he filed the present action in the United

States District Court for the Central District of California,

alleging that Southwest violated 45 U.S.C. § 152, Fourth, by

terminating his employment in retaliation for his having

engaged in activities to replace ROPA with the Teamsters

union. In the district court, Fennessy made no claim that

ROPA did not fairly represent him in the system board

hearing. He raised that issue for the first time on appeal to

the Ninth Circuit. (App. 1.2-3.)

Argument and Authority

Error of the Ninth Circuit

In reversing the district court, the Ninth Circuit

concluded that Fennessy had a judicially cognizable cause of

action under section 152, Fourth, and that he was not

required to submit that statutory claim to the system board

of adjustment. The Ninth Circuit fell into error in several

respects. First, it placed undue reliance upon this Court’s

decision in Hawaiian Airlines, Inc. v. Norris, U.S. ___,

' In late 1996, ROPA merged with the Transport Workers Union of

America, AFL-CIO. The entity formerly known as ROPA is now TWU

Local 555.

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114 S. Ct. 2239 (1994). The Norris decision was limited to

the issue of whether an employee’s state cause of action is

preempted by the RLA. It did not involve the issue of the

appropriate forum for resolving an individual employee’s

claim of a statutory violation of the RLA. Second, the Ninth

Circuit failed to give proper deference to the strong federal

labor policy favoring submission of employee disputes to the

arbitral tribunals mandated by the RLA.

Important Question of Federal Law Which Has Not,

But Should Be, Settled by this Court

Prior to 1934, arbitration procedures contained in the

RLA were voluntary. They proved to be ineffective.

Consequently, in 1934 the RLA was amended to provide for

a dispute resolution procedure which is "mandatory,

exclusive, and comprehensive." Brotherhood of Locomotive

Eng’rs v. Louisville & N.R.R., 373 U.S. 33, 36-38, 83 S.

Ct. 1059, 1061-62 (1963). "The Adjustment Board was

created as a tribunal consisting of workers and management

to secure the prompt, orderly and final settlement of

grievances that arise daily between employees and carriers

regarding rates of pay, rules and working conditions.

Congress considered it essential to keep these so-called

‘minor’ disputes within the Adjustment Board and out of the

courts." Union Pac. R.R. v. Sheehan, 439 U.S. 89, 94, 99

S. Ct. 399, 402 (1978) (per curiam).

Using the traditional definition of minor dispute, this

Court in Norris held that an employee’s state law claim was

not preempted by the RLA because the source of the claim

existed independently of the collective bargaining agreement.

114 S. Ct. at 2245-49. See also Atchison, T. & S.F.R.R. v.

Buell, 480 U.S. 557, 107 S. Ct. 1410 (1987) (RLA

employee may pursue judicial remedies under the Federal

— epee tee dae

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Employers’ Liability Act, 45 U.S.C. § 51 ef seqg.). Left

unanswered by the Norris and Buell decisions is the question

of whether an individual employee’s claim of wrongful

discharge in violation of section 152, Fourth of the RLA

must be submitted initially to the statutorily created

adjustment board.

Traditional Minor Dispute Analysis

As Applied in Norris Is Inadequate

to Statutory Claim Presently Before the Court

This Court has repeatedly defined "major" and "minor"

disputes under the Act. Briefly, major disputes are those

arising from the negotiation of new collective bargaining

agreements or the renegotiation of existing agreements.

Minor disputes are those arising from the interpretation and

application of existing collective bargaining agreements.

Elgin, J.& E. Ry. v. Burley, 325 U.S. 711, 723, 65 S. Ct.

1282, 1290 (1945); Consolidated Rail Corp. v. Railway

Labor Exec’s Ass'n, 491 U.S. 299, 302, 109 S. Ct. 2477,

2480 (1989). Minor disputes have been described as

“controversies over the meaning of an existing collective

bargaining agreement in a particular fact situation."

Brotherhood of R.R. Trainmen v. Chicago R.& I.R. Co. , 353

U.S. 30, 33, 77 S. Ct. 635, 637 (1957). In other words,

"major disputes seek to create contractual rights, minor

disputes to enforce them." Conrail, 491 U.S. at 302, 109

S.Ct. at 2480, citing Burley, 325 U.S. at 723, 65 S. Ct. at

1289-90.

However, the Court’s traditional minor dispute analysis

as applied in Norris is inadequate when applied to the

statutory claim presently before the Court. First, the Court

in Norris took too restrictive a view of the nature of

collective bargaining agreements when it concluded that a

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run-of-the-mill discharge case presents nothing more than

"purely factual questions’ about an employee’s conduct or

an employer’s conduct and motives [which] do not 'requir[e]

a court to interpret any term of a collective bargaining

agreement .'" Norris, 114 S. Ct. at 2248, quoting Lingle v.

Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407, 108 S.

Ct. 1877, 1882 (1988). For as this Court has repeatedly

stated: "A collective bargaining agreement is not an

ordinary contract.... ‘The collective agreement covers

the whole employment relationship. It calls into being a new

common law--the common law of a particular industry or of

a particular plant'" Transportation Union v. Union Pac.

R.R., 385 U.S. 157, 160-61, 87 S. Ct. 369, 371 (1966),

quoting Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S.

574, 578-79, 80 S. Ct. 1347, 1350-51 (1960). Moreover, in

the case presently before the Court, the statutory protection

at issue is incorporated, by statute, into every RLA

collective bargaining agreement. Specifically, under the

RLA, the rights under section 152, Fourth are incorporated

by statute into every collective bargaining agreement.

45 U.S.C. § 152, Eighth.

Additionally, the minor dispute analysis as applied in

Norris fails to consider that even purely statutory claims may

be appropriate for resolution in arbitral tribunals. As in the

case presently before the Court, where a discharged

employee makes a statutory claim, and where an RLA

collective bargaining agreement broadly provides for the

submission of all discharge cases to the statutorily mandated

adjustment board, this Court should look beyond its

traditional minor dispute analysis and carefully examine the

source of any claimed statutory right to determine whether

"Congress itself has evinced an intention to preclude a

waiver of judicial remedies for the statutory rights at issue."

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc..,

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473 U.S. 614, 628, 105 S. Ct. 3346, 3354-55 (1985). The

burden should be on the employee "to show that Congress

intended to preclude a waiver of a judicial forum" for his

RLA claim. Gilmer v. Interstate/Johnson Lane Corp., 500

U.S. 20, 26, 111 S. Ct. 1647, 1652 (1991). “If such an

intention exists, it will be discoverable in the text of the

[RLA], its legislative history, or an ‘inherent conflict’

between arbitration and the [RLA’s] underlying purposes."

Id. While conducting this analysis, the Court should bear in

mind that "questions of arbitrability must be addressed with

a healthy regard for the federal policy favoring arbitration."

Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp. , 460

U.S. 1, 24, 103 S. Ct. 927, 941 (1983). (Although Moses

H. Cone involved the Federal Arbitration Act, 9 U.S.C. § 1

et seq., it cannot be seriously maintained that the FAA

evinces a stronger federal policy favoring arbitration than

that mandated by the PLA.) By requiring an employee to

first submit his statutory discharge claim to the adjustment

board, he "does not forego the substantive rights afforded by

the statute; [he] only submits to their resolution in an

arbitral, rather than a judicial forum." Mitsubishi, 473 U.S.

at 628, 105 S. Ct. at 3354.

Function and Relationship of

System Boards of Adjustment and Federal Courts

Federal courts, in the exercise of their equity jurisdiction,

possess the authority to compel compliance with the duties

and obligations of the Railway Labor Act. Virginian Ry. v.

Railway Employees, 300 U.S. 515, 57 S. Ct. 592 (1937).

However, as the Court later explained, "we have understood

judicial intervention in RLA procedures to be limited to

those cases where ‘but for the general jurisdiction of the

federal courts there would be no remedy to enforce the

statutory commands which Congress had written into the

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Railway Labor Act.'" Trans World Airlines v. Independent

Fed’n of Flight Attendants, 489 U.S. 426, 441, 109 S. Ct.

1225, 1234-35 (1989), quoting Switchmen’s v. National

Mediation Bd. , 320 U.S. 297, 300, 64S. Ct. 95, 96 (1943).

Consistent with this principle, it is understandable that

where there has not yet been established a system board of

adjustment, it is appropriate for the federal courts to

entertain suits by individual employees to enforce their rights

under section 152, Fourth.” See, e.g., Burke v. Compania

Mexicana de Aviacion, 433 F.2d 1031 (9th Cir. 1970). "To

hold, in this case, that Burke may not bring suit for a

violation of section 2 (Fourth) would leave a gap in the

enforcement of that section which would blunt the

effectiveness of the congressional purpose." Jd. at 1033.

See also Roscello v. Southwest Airlines Co., 726 F.2d 217

(Sth Cir. 1984) (jurisdiction in federal court not contested

where no collective bargaining agreement existed, and

carrier declined to entertain grievance in the absence of a

collective bargaining agreement).

Additionally, of course, even where a system board has

been established, judicial intervention may be necessary in

order to preserve the integrity and jurisdiction of the board.

Brotherhood of R.R. Trainmen, 353 U.S. 30, 77 S. Ct. 635;

Brotherhood of Locomotive Eng’rs v. Missouri-Kansas-Texas

Ry., 363 U.S. 528, 80 S. Ct. 1326 (1960). Similarly, if the

employee is arbitrarily and discriminatorily denied access to

the system board, obviously, he should be permitted to

? "Section 2 Fourth was enacted as part of the 1934 amendments to

the RLA. From the time of our very first opportunity to interpret the

1934 amendments, we have viewed them as addressing primarily the

precertification rights and freedoms of unorganized employees." Trans

World Airlines, 489 U.S. at 440, 109 S. Ct. at 1234.

emnssiaiiiiiiiiiiiiiiiaiiaiiiiiiiaiiel

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proceed to federal court. Vaca v. Sipes, 386 U.S. 171, 87

S. Ct. 903 (1967).

But where, as here, there exists a contractual system

board of adjustment as required by the RLA; the relevant

collective bargaining agreement provides for the submission

of all discharge cases to the system board; the employee

invokes jurisdiction of the system board and fully participates

in that hearing; the union represents the employee in the

grievance procedure and before the system board; there is no

evidence of actual bias or impropriety; the employee makes

no claim that the union breached its duty of fair

representation until the case is pending on appeal before the

Ninth Circuit; and the system board sustains the employee’s

discharge, there is no reason in either logic or the statute

which would permit the employee to proceed to federal

court, not for the purpose of seeking review of the

adjustment board decision, but to claim, belatedly and for

the first time, that his discharge was in violation of section

152, Fourth. This is not a case where "'but for the general

jurisdiction of the federal courts there would be no remedy

to enforce the statutory commands which Congress had

written into the Railway Labor Act.'" Trans World Airlines,

489 U.S. at 441, 109 S. Ct. at 1235, quoting Switchmen’s,

320 U.S. at 300, 64 S. Ct. at 96.

Competence of System Boards

The Court’s observation in Norris and in Alexander v.

Gardner-Denver Co., 415 U.S. 36, 53-57, 94 S. Ct. 1011,

1022-24 (1974) that questions of statutory construction and

application are beyond the experience and authority of labor

arbitral tribunals is factually disputable and manifests a

continuing "suspicion of arbitration as a method of

weakening the protections afforded in the substantive law to

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would-be complainants" and, as such, is "far out of step with

our current strong endorsement of the federal statutes

favoring this method of resolving disputes." Gilmer, 500

U.S. at 30, 111 S. Ct. at 1654. Indeed, one need look no

further than footnote 21 in Gardner-Denver to find a judicial

acknowledgment that labor arbitrators routinely consider and

apply statutory rights:

We adopt no standards as to the weight to be accorded

an arbitral decision, since this must be determined in the

court’s discretion with regard to the facts and

circumstances of each case. Relevant factors include the

existence of provisions in the collective bargaining

agreement that conform substantially with Title VII,* the

degree of procedural fairness in the arbitral forum,

adequacy of the record with respect to the issue of

discrimination, and the special competence of particular

arbitrators.

Gardner-Denver, 415 U.S. at 60 n. 21, 94S. Ct. at 1025 n.

21. Similarly:

An increasing number of arbitrators have relied on Title

VII doctrine to decide their cases, especially where the

agreement explicitly stated that the parties would comply

with the anti-discrimination law.

If a nondiscrimination clause existed in the agreement,

arbitrators have construed this to require their

> Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

§ 2000e et seg. Significantly, after Gardner-Denver, Congress

encouraged alternative dispute resolution, including arbitration, to resolve

Title VII disputes. See section 118 of Pub. L. 102-166, set out as a note

under 42 U.S.C. §§ 1981, 1981a, 2000e and 2000e-4.

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consideration of Title VII. If the agreement contained

no mention of antidiscrimination, arbitrators have

continued to recognize that the concepts of just cause and

unlawful discrimination are now merged.

Elkouri & Elkouri, How Arbitration Works, 4th ed., 1985-89

Cumulative Supplement, pp. 107-08.

Moreover, of particular significance to the case sub

judice, section 152, Fourth is by statute made a part of every

collective bargaining agreement. 45 U.S.C. § 152, Eighth.

Consequently, whenever there is an allegation that an

employee has suffered discipline because of union activity,

the arbitral tribunal is required by law to interpret and apply

the statutory provision as if it were part of the collective

bargaining agreement. Texas Int’l Airlines, Inc., 68 L.A.

244 (Gruenberg, 1976).

Finally, although the RLA provides for an equal number

of union and management representatives on system boards

of adjustment, 45 U.S.C. § 153, bias should not be

presumed solely because the aggrieved employee is claiming

discrimination because of activities antithetical to the

incumbent union. For notwithstanding the origin of their

appointment, all system board members are "charged with

the responsibility of impartially deciding the case before the

Board." Wells v. Southern Airways, Inc. , 517 F.2d 132, 134

(5th Cir. 1975), cert. denied, 425 U.S. 914 (1976); 616

F.2d 107 (Sth Cir. 1980) (system board, which included

union members who had participated in strike, held

competent to hear non-union strike breaker’s claims of

retaliation, collusion and discrimination--absent evidence of

actual bias, bias would not be presumed).

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Statutory and Judicial Safeguards

The system board of adjustment is an appropriate forum

for resolving an employee’s claim under section 152, Fourth,

and sufficient statutory and judicial safeguards exist to

protect a claimant’s rights. More particularly:

(1) By statute, section 152, Fourth, is made a part of

(2)

(3)

(4)

every RLA collective bargaining agreement. 45

U.S.C. § 152, Eighth.

By requiring an employee to first submit his statutory

discharge claim to the adjustment board, he "does not

forego the substantive rights afforded by the statute;

[he] only submits to their resolution in an arbitral,

rather than a judicial forum." Mitsubishi, 473 U.S.

at 628, 105 S. Ct. at 3354.

Union/management composition of system boards is

contemplated by the RLA, and each board member is

charged with the responsibility for exercising his

duties in an unbiased and nondiscriminatory manner,

even where the claimant is by union affiliation or

non-affiliation "institutionally" adverse. Wells, 517

F.2d 132, 616 F.2d 107.

If a claimant establishes that any board member is

actually biased the board decision may be set aside.

Id. Similar to the duty of fair representation imposed

upon a statutory bargaining representative, a system

doard of adjustment, as a statutory tribunal, should

be "subject always to complete good faith and

honesty of purpose in the exercise of its discretion."

Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73

S. Ct. 681, 686 (1953).

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(5) An employee claimant has the statutory right of

judicial review of any system board decision. 45

U.S.C. § 153, First (q).

(6) A union has a duty of fair representation and may not

handle an employee’s claim in a manner which is

arbitrary, discriminatory or in bad faith. Vaca, 386

U.S. at 190, 87S. Ct. at 916. If the union’s breach

of its duty results in an inadequate presentation of the

employee’s claim, the board decision may be set

aside. Hines v. Anchor Motor Freight, Inc., 424

U.S. 554, 96 S. Ct. 1048 (1976).

Conclusion

In deciding whether an employee’s claim of wrongful

discharge in violation of section 152, Fourth must be

submitted initially to a system board of adjustment, this

Court should not limit itself to its traditional minor dispute

analysis. For although section 152, Fourth is by statute

made a part of each collective bargaining agreement, and

although virtually every wrongful discharge case will require

interpretation and application of the collective bargaining

agreement in its broader sense, i.e. the written agreement as

well as the common law of the shop, the Court should also

consider whether Congress has manifested an intention to

preclude a waiver of judicial remedies ‘or the statutory right

at issue. The burden should be on the employee to establish

such a congressional intention froza the text of the statute, its

legislative history or by demonstrating that there is an

inherent conflict between arbitration and thc RLA’s

underlying purposes. While conducting ‘iis analysis, the

Court should bear in mind that questions of arbitrability must

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be addressed with a healthy regard for the federal policy

favoring arbitration.

The text of the RLA and its legislative history evince an

indisputable congressional intent to require carriers and

employee representatives to resolve employee disputes within

the framework of the statutorily created dispute resolution

tribunals. The RLA requires carriers and unions to establish

system boards of adjustment to secure the prompt, orderly

and final settlement of grievances that arise daily between

employees and carriers. Congress considered it essential to

keep these disputes within the adjustment boards and out of

the courts. Judicial intervention should be limited to those

cases where but for the general jurisdiction of the federal

courts, there would be no adequate remedy to enforce the

employee’s statutory right. Consistent with this con-

gressional intent, a system board of adjustment must have

exclusive initial jurisdiction of an employee’s claim of

wrongful discharge in violation of section 152, Fourth of the

RLA. Restated more simply, the system is in place. Let it

work.

In the case presently before the Court, there existed a

statutory system board which possessed the experience and

authority to enforce the provisions of section 152, Fourth.

Consistent with federal policy favoring arbitration of

Statutory claims, Fennessy should have submitted his

statutory claim initially to the system board.

This is an important question of federal law which

has not been, but should be, settled by this Court.

Consequently, Petitioner prays the Court to grant its petition

15

for writ of certiorari and to settle this important question of

federal law as urged by Petitioner.

Respectfully submitted,

Of Counsel:

WELLS PINCKNEY & MCHUGH J. JOE HARRIS

A Professional Corporation 800 One Alamo Center

800 One Alamo Center 106 S. St. Mary’s St.

106 S. St. Mary’s St. San Antonio, TX 78205

San Antonio, TX 78205 Telephone: (210) 226-1166

Telecopier: (210) 226-1133

Attorney for Petitioner

APPENDIX

i]

APPENDIX TABLE OF CONTENTS

App. 1 Decision of the Ninth Circuit

App. 2 Order of the District Court

App. 3 Order of the Ninth Circuit Denying Rehearing

App. 4 Relevant Provisions of the Railway Labor Act

App. 1.1

Patrick FENNESSY, Plaintiff-Appellant,

v.

SOUTHWEST AIRLINES,

Defendant-Appellee.

No. 94-55630.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Nov. 13, 1995.

Decided Aug. 7, 1996.

Appeal from the United States District Court for the

Central District of California, Richard A. Gadbois, Jr.,

District Judge, Presiding. D.C. No. CV-93-02820-RG.

Before: FLETCHER, CANBY, and HAWKINS, Circuit

Judges.

CANBY, Circuit Judge:

Patrick Fennessy claims that Southwest Airlines Co.

violated section 152, Fourth of the Railway Labor Act

("RLA" or "the Act"), 45 U.S.C. §§ 152-188, by

terminating his employment in retaliation for his efforts to

replace his existing union with a different one. Fennessy

appeals the district court’s grant of summary judgment in

favor of Southwest. We reverse.

App. 1.2

I.

While employed as a ramp agent for Southwest, Fennessy

became a member of the Ramp Operations & Provisioning

Agents ("ROPA"), as required by the parties’ Collective

Bargaining Agreement. ROPA has been the recognized

collective bargaining representative for Southwest ramp

agents since 1988. Asserting that he was dissatisfied with

ROPA’s representation, Fennessy unsuccessfully engaged in

efforts to organize support for representation by the

Teamsters Union.

While driving a baggage cart as part of his duties as a

ramp agent for Southwest, Fennessy struck an aircraft,

causing a superficial 18-inch scratch on the plane’s surface

and a brief delay before a take-off. Southwest subsequently

held a factfinding session concerning that accident, after

which Fennessy’s employment was terminated. The stated

reason for Fennessy’s termination was his striking the

aircraft and failing to report it im accordance with

Southwest’s policy.

Following the accident, Fennessy sought and obtained the

assistance of the ROPA representative. Upon completion of

Southwest’s factfinding session, Fennessy filed a grievance

through ROPA concerning his termination. After a hearing,

a Systems Board of Adjustment, consisting of two members

of Southwest’s management and two ROPA members,

upheld Fennessy’s termination.

Fennessy then brought this action in district court,

alleging that Southwest violated 45 U.S.C. § 152, Fourth, by

terminating his employment in retaliation for his having

engaged in activities to replace ROPA with a Teamsters

representative. On appeal, Fennessy also contends that

App. 1.3

ROPA did not fairly represent him in the Adjustment Board

hearing.

Il.

Congress adopted the RLA to provide "a comprehensive

framework for the resolution of labor disputes in the railroad

industry." Atchison Topeka & Santa Fe Ry. Co. v. Buell,

480 U.S. 557, 562-63, 107 S.Ct. 1410, 1414, 94 L.Ed.2d

563 (1987).! The Act’s coverage has been extended to

airlines. 45 U.S.C. § 181. The Act sets forth procedures

for dealing with both "major" and "minor" disputes. Major

disputes are those arising "‘out of the formation or change

of collective [bargaining] agreements covering rates of pay,

rules, or working conditions.'" Buell, 480 U.S. at 562-63,

107 S.Ct. at 1414 (internal quotations omitted) (citation

omitted.). Minor disputes "grow [ ] out of grievances or out

of the interpretation or application of agreements concerning

rates of pay, rules, or working conditions." Id. at 563, 107

S.Ct. at 1414 (quoting 45 U.S.C. § 153 First (i)) (internal

quotes omitted); see also Consolidated Rail Corp. v. Railway

Labor Executives’ Ass’n ("Conrail"), 491 U.S. 299, 302-04,

109 S.Ct. 2477, 2480-81, 105 L.Ed.2d 250 (1989)

(distinguishing between major and minor disputes). The

parties agree that Fennessy’s claim is not a major dispute.

The parties disagree, however, as to whether Fennessy’s

discharge involves a minor dispute. The answer depends

upon how the dispute over the discharge is framed. The

grievance that Fennessy submitted, through ROPA, to the

1 We review a grant of summary judgment de novo, Warren v. City

of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, _ U.S.

__, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996).

App. 1.4

Adjustment Board unquestionably was a minor dispute. The

issue was whether Fennessy’s termination was based on

proper cause within the meaning of the collective bargaining

agreement. See Conrail, 491 U.S. at 307, 109 S.Ct. at 2483

("[D]ispute is minor if the action is arguably justified by the

terms of the parties’ collective bargaining agreement."); see

also Hawaiian Airlines, Inc. v. Norris, __U.S.___, __,

114 S.Ct. 2239, 2245, 129 L.Ed.2d 203 (1994). No claim

was raised in these proceedings, or asserted by Fennessy at

the time, that his discharge was in retaliation for his

organizing activities.

The Adjustment Board’s decision is binding on Fennessy

with regard to whai it decided: that his discharge did not

violate the >llective bargaining agreement. Judicial review

of the Adjustment Board’s decision of such a minor dispute

is "among the narrowest known to the law." Buell, 480

U.S. at 563, 107 S.Ct. at 1414 (internal quotations omitted)

(citation omitted). The Board’s findings and order may only

be set aside for a failure of the Board to comply with

procedural or jurisdictional requirements of the Act, for

fraud, or for corruption. 45 U.S.C. § 153, First(q).

Fennessy did not seek review of the Board’s decision,

however. Instead, he brought this action in district court,

alleging that his discharge was in retaliation for his Teamster

organizing activities and that it accordingly gave rise to an

independent statutory claim under 45 U.S.C. § 152, Fourth.

Section 152, Fourth provides:

Employees shall have the right to organize and bargain

collectively through representatives of their own

choosing. ... No carrier, its officers or agents, shall

deny or in any way question the right of its employees to

joi, organize, or assist in organizing the labor

App. 1.5

organization of their choice, and it shall be unlawful for

any carrier to interfere in any way with the organization

of its employees . . . or to influence or coerce employees

in an effort to induce them to join or remain or not to

join or remain members of any labor organization. . . .

45 U.S.C. § 152, Fourth. Fennessy argues that Southwest

Airlines terminated him in order to interfere with his right to

organize the labor organization of his choice. Fennessy

contends that, because his claim is based on a statutory

provision rather than on the collective bargaining contract,

it is not a minor dispute that must be brought to a Board of

Adjustment; it is a statutory claim that he may bring directly

in district court.

Fennessy is correct. If there was any doubt before

whether a statutory claim could constitute a minor dispute,

it was dispelled by Hawaiian Airlines v. Norris, _U.S.__,

: 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994). Norris, which

was decided after the district court ruled in this case,

involved a question whether state-law claims of discharge in

violation of public policy and discharge in violation of a

"whistleblowers’ protection” statute were preempted by the

| RLA. The discharged worker had unsuccessfully grieved his

discharge under the adjustment process, and then had sued

in state court. In holding the claims not preempted, the

Supreme Court first had to address the question whether the

claims were “minor disputes" that were subject exclusively

to the RLA grievance process, which would preempt state

law. It expressly rejected the defendants’ argument that

"'grievances' should be read to mean all employment-related

disputes, including those based on statutory or common

law." Id. at __, 114 S.Ct. at 2244. Instead, the Court held

that "the category of minor disputes contemplated by § 15la

are those that are grounded in the collective bargaining

:

App. 1.6

agreement." /d. at__, 114 S.Ct. at 2245; see also Conrail,

491 U.S. at 307, 109 S.Ct. at 2482-83. Accordingly, "the

RLA’s mechanism for resolving minor disputes does not pre-

empt causes of action to enforce rights that are independent

of the CBA.” Norris, ___ U.S. at ___, 114 S.Ct. at 2246.

Thus the mere fact that Fennessy’s discharge could be

grieved on contractual grounds under the CBA does not

mean that his statutory claim under the RLA is a minor

dispute.

The fact that Fennessy’s claim is not a minor dispute does

not ensure his success on this appeal, however. Norris is

distinguishable from this case, because it dealt with common-

law or statutory claims arising wholly apart from the RLA.

Here, Fennessy attempts to assert a private right of action

under section 152, Fourth of the RLA. Wholly apart from

the "minor dispute" issue, his ability to avail himself of that

remedy depends upon the reach of section 152, Fourth and

whether it extends to the circumstances of Fennessy’s case.

Section 152, Fourth has been viewed "as addressing

primarily the precertification rights and freedoms of

unorganized employees." Trans World Airlines, Inc. v.

Independent Fed’n of Flight Attendants, 489 U.S. 426, 440,

109 S.Ct. 1225, 1234, 103 L.Ed.2d 456 (1989). The reason

is that, once a bargaining representative is certified, the RLA

dispute-resolution system is put in place and judicial

intervention is generally unnecessary and undesirable. Jd. at

441, 109 S.Ct. at 1234-35. For this reason, the district

court concluded that section 152, Fourth offered no private

right of action to Fennessy, because a union had been

certified to represent him and the grievance procedure was

available and utilized.

App. 1.7

The difficulty with this view is that the grievance

procedure is designed, as Norris indicates, to deal with

contractual issues arising under the collective bargaining

agreement. Norris, __U.S. at__, 114 S.Ct. at 2245. If

Fennessy’s statutory rights have been violated, the fact that

ROPA may represent him before the Adjustment Board does

nothing to remedy that problem. Judicial recognition of his

cause of action would therefore seem to be one of "those

cases where ‘but for the general jurisdiction of the federal

courts there would be no remedy to enforce the statutory

commands which Congress had written into the Railway

Labor Act.'" Trans World Airlines, 489 U.S. at 441,

109 S.Ct. at 1235 (quoting Switchmen’s v. National

Mediation Bd., 320 U.S. 297, 300, 64 S.Ct. 95, 96-97,

88 L.Ed. 61 (1943)).

Southwest contends, however, that recognition of a

private right of action for employees who have a bargaining

representative will utterly defeat Congress’s intent in the

RLA "to keep railroad labor disputes out of the courts."

Lewy v. Southern Pac. Transp. Co., 799 F.2d 1281, 1289

(9th Cir.1986). For this reason, Southwest argues, the cases

that recognize a private right of action either are limited to

claims brought by employees prior to certification of a

collective bargaining representative, or depend upon a

violation of the right of fair representation that distorted the

grievance process.

Our reading of the cases does not bear out Southwest’s

contention. It is quite true that some courts have expressed

considerable uneasiness in recognizing a private right of

action for employees who have a bargaining representative.

Perhaps most explicit is International Ass’n of Machinists v.

Northwest Airlines, Inc., 673 F.2d 700 (3rd Cir.1982).

There a union sued an airline for several disciplinary actions

App. 1.8

that it contended were designed to undermine the union’s

representation. The disciplinary actions were initially

grieved. The Third Circuit discussed the precertification

emphasis of section 152, Fourth, and stated that it found a

lack of authority for entertaining an action under that statute

when a collective bargaining agreement was in existence.

Id. at 709. It added, however: "We do not foreclose the

possibility that given the appropriate case and the appropriate

circumstances such an action could be brought in federal

court." Jd. Moreover, the court denied the right of action

only because the employer’s affidavits denying anti-union

motivation went uncontroverted. /d. at 710-12.

Our seminal decision under section 152, Fourth was

Burke v. Compania Mexicana De Aviacion, S.A., 433 F.2d

1031 (9th Cir.1970). Burke involved a claim where the

grievance procedure was unavailable, and we made some

point of thai fact:

[Burke] was discharged [from his employment] before he

was able to extend union coverage to his unit. Thus he

is not a member of the union, and the union has no duty

or desire to represent him. If Burke cannot sue to

enforce the Act, no one can. Such a result is inconsistent

with Congress’ concern that [§ 152, Fourth] be backed by

adequate penalties and could not have been intended.

Id.

We relied on no such rationale, however, when later we

entertained an action under section 152, Fourth in Arcamuzi

v. Continental Air Lines, Inc., 819 F.2d 935 (9th Cir. 1987).

In that case, we permitted union pilots returning to work

after the conclusion of a strike to seek to enjoin polygraph

examinations that they alleged were imposed as anti-union

App. 1.9

discrimination. We stated that "[a]n implied right of action

exists under this section." Jd. at 936; see also Price v. PSA,

Inc., 829 F.2d 871 (9th Cir.1987) (citing Arcamuzi for

proposition that "[t]his circuit has held that an implied

private right of action exists under RLA [§ 152, Fourth]."),

cert. denied, 486 U.S. 1006, 108 S.Ct. 1732, 100 L.Ed.2d

196 (1988). We did not discuss whether a certified

bargaining representative existed or whether a grievance

procedure was in place; we simply applied the statute.

Other cases relied upon by Southwest also do not appear

to depend upon an absence of a collective bargaining

representative. In Stepanischen v. Merchants Despatch

Transp. Corp., 722 F.2d 922 (ist Cir.1983), the First

Circuit upheld a private right of action for an inspector who

was discharged because he sought to organize the inspectors.

No bargaining representative appears to have been certified,

but the First Circuit did not mention that point. In rejecting

the employer’s contention that section 152, Fourth was only

enforceable by criminal proceedings, the court simply noted

that every court that had considered the question had found

an implied right of action under section 152, Fourth. /d. at

924.

? Because we believe the outcome of this appeal is controlled by

cases in which we have previously recognized a private right of action

under § 152, Fourth of the RLA, we do not analyze Fennessy’s assertion

of a private right of action under the standards enunciated in Cort v. Ash,

422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). Cf. Stepanischen

v. Merchanis Despatch Transp. Corp., 722 F.2d 922 (1st Cir. 1983)

(applying Cort to question of whether plaintiff could maintain a private

right of action under the RLA § 152, Fourth). We recognized a private

right of action under § 152, Fourth before Cort, see Burke v. Compania

Mexicana De Aviacion, S.A., 433 F.2d 1031, 1033-34 (9th Cir.1970),

and have followed our holding in Burke after Cort, see, e.g., Arcamuzi

v. Continental Air Lines Inc., 819 F.2d 935, 936 (9th Cir.1987) (citing

App. 1.10

We find the same phenomenon when we examine the

post-certification cases that Southwest asserts are dependent

upon a finding of a violation of the duty of fair

representation. In Roscello v. Southwest Airlines Co.,

726 F.2d 217 (Sth Cir.1984), an operations agent sued the

airline under section 152, Fourth. He had attempted without

success to organize the agents under the Teamsters. The

airline recognized a competing union, and three days later

fired the agent. He grieved his discharge through the new

union without success. He then sued the airline and added

an unfair representation claim against the new union. The

Fifth Circuit held that the agent was entitled to a jury trial

on his unfair representation claim, and with regard to the

statutory claim noted:

The parties do not question whether the plaintiff has a

private right of action for wrongful discharge under the

Railway Labor Act. Therefore we assume without

deciding that plaintiff has properly stated a claim.

Furthermore, there seems to be no doubt that this claim,

which rests not upon a collective bargaining contract, but

upon a charge that Southwest violated the statute, was

within the jurisdiction of the district court rather than an

adjustment board.

Id. at 220 n. 2 (internal citations omitted). No mention was

made of the necessity for an unfair representation claim to

accompany the section 152, Fourth claim.

Similarly, in Conrad v. Delta Air Lines, Inc., 494 F.2d

914 (7th Cir. 1974), the Seventh Circuit entertained a claim

Burke for proposition that "[aJn implied right of action exists under [§

152, Fourth of the RLA]."). See generally Siepanischen, 722 F.2d at

925-27 (concluding that our reasoning in Burke survived Cort).

Pe ae es

App. 1.11

under section 152, Fourth of a probationary pilot who had

been dischaRged. The union had refused to grieve his

discharge, and he added a claim against it for violation of

the duty of fair representation. The court of appeals held

that the pilot had raised a triable issue of fact on his section

152, Fourth claim, but had not raised a triable issue against

the union for violation of the duty of fair representation.

Id. at 917-19. Conrad accordingly cannot be said to depend

on a requirement of a fair representation violation; quite the

contrary, it demonstrates that a triable statutory claim can be

brought in the absence of such a violation.

There is a common-sense reason why these cases do not

depend on a violation of the right of fair representation in

order for an employee to maintain a private action under

section 152, Fourth. Because the Board of Adjustment has

no jurisdiction over the statutory claim, fair representation

in the grievance proceeding is of no use to the statutory-

claim plaintiff.

It is fortunate for Fennessy that a viable fair

representation claim is not a requisite for maintenance of a

private action under section 152, Fourth. Fennessy did not

raise an unfair representation argument until he reached this

court. He pleaded no claim of violation of the right of fair

representation, and he laid no evidentiary groundwork in the

district court to support such a claim. Consequently, no

unfair representation claim is properly before us.

Ii.

In summary, we conclude that Fennessy has a private

right of action under section 152, Fourth, and that his

statutory claim is not a minor dispute. The district court,

acting without the benefit of the Supreme Court’s recent

App. 1.12

decision in Norris, erred in ruling to the contrary. We

therefore reverse its judgment and remand for further

appropriate proceedings. We decline to rule on other issues

not reached by the district court.

App. 2.1

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

PATRICK FENNESSY, )

)

Plaintiff, ) CASE NO. CV 93-2820 RG (Sx)

v. )

)

SOUTHWEST AIRLINES )

CO., et al. ) ORDER’

)

Defendants. )

)

Defendant Southwest Airlines Co.’s ("Southwest")

Motion for Summary Judgment came on for hearing before

this Court on Monday, March 28, 1994, at 10:00 a.m.

Having considered the moving and opposition papers and

arguments of counsel, the Court hereby makes the following

findings of fact and conclusions of law:

I. Introduction

Plaintiff Patrick Fennessy ("Fennessy" or "plaintiff") was

employed as a ramp agent for defendant Southwest Airlines

Co. ("Southwest") at Southwest’s Burbank station from

March 1990 through December 1992. As required by the

parties’ collective bargaining agreement, Fennessy became

a member of the Ramp Operations and Provisioning Agents

("ROPA") following his date of employment with Southwest.

Jim Chancellor Decl. ¢ 2; Fennessy Depo. p. 46, 1.24 - p.

* Filed March 28, 1994, Clerk, U.S. District Court, Central District

of California; entered March 30, 1994, Clerk, U.S. District Court,

Central District of California.

App. 2.2

47, 1.10. ROPA has been the recognized collective

bargaining unit for Southwest Ramp agents since 1988. Jim

Chancellor (Ground Operations Dept. Director) Decl. ¢ 2.

On December 4, 1992, while carrying out his duties as

a ramp agent for Southwest, Fennessy struck an aircraft

while driving a baggage cart, causing a superficial 18"

scratch on the plane’s surface and a brief delay before take-

off.

On December 7, 1992, Southwest held a fact-finding

session at the Burbank station concerning the December 4

accident, after which Fennessy’s employment was

terminated. The stated reason for Fennessy’s termination

was his striking the airc) «ft and failing to report it in

accordance with Southwest policy.

At the time of the December 4 accident, plaintiff sought

and obtained the assistance of the ROPA representative at the

Burbank station in connection with the December 7 fact-

finding meeting. Fennessy then filed a grievance concerning

his termination through ROPA. On January 25, 1993, a

Systems Board of Adjustment hearing was held regarding

Fennessy’s termination. The Systems Board, consisting of

two members of defendant’s management and two ROPA

members, upheld Fennessy’s termination.

The congressional policy behind the RLA was to

promote stability in labor-management relations by

“provid[ing] a comprehensive framework for the resolution

of labor disputes in the railroad industry." Edelman v.

Ay Adan we nel a:

App. 2.3

Western Airlines, Inc., 892 F.2d 839, 842-43 (9th Cir.

1989) (quoting Atchison, Topeka & Santa Fe Railway Co. v.

Buell, 480 U.S. 557, 562 (1987) ("Buell")). This

framework was to provide for the resolution of disputes

"growing out of grievances or out of . . . agreements

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

45 U.S.C. § 15la, outside the courts. Lewy v. Southern

, 799 F.2d 1281, 1289 (9th Cir.

1986) ("Congress specifically intended the RLA to keep

railroad labor disputes out of the courts."). The RLA’s

coverage is extended to airlines as well as railroads in Title

Il of the RLA. 45 U.S.C. § 181.

A. What is a "Minor Dispute?"

Disputes which "“grow[] out of grievances” are

considered "minor disputes," Buell, 480 U.S. at 563, and are

dealt with by a specific procedure provided for in section

184 of the RLA. Initially, these disputes must be dealt with

through an airline’s internal dispute resolution processes, and

if not settled there, may be submitted to a Board of

Adjustment, which is a statutorily created body with

jurisdiction over such claims. 45 U.S.C. § 184.

Generally, a party who has litigated an issue before the

board of adjustment on the merits may not relitigate that

issue in an independent judicial proceeding. Andrews v.

Louisville & Nashville Railroad Co., 406 U.S. 320, 325

(1972). An aggrieved party may seek review in the courts

only for the board’s failure to follow the procedures

provided for in the RLA or for fraud or corruption of a

board member. 45 U.S.C. § 153(q).

App. 2.4

B. Ninth Circuit Law

The Ninth Circuit has classified wrongful discharge

claims, such as the one at bar, as "minor disputes” subject

to the exclusive jurisdictional provisions of section 184.

Magnuson v. Burlington Northern Inc., 576 F.2d 1367 (9th

Cir.), cert. denied, 439 U.S. 930 (1978); Lewy v. Southern

Pacific Transportation Co.. oO En Oe 1986);

ston V. gti yrthe ya , 999 F.2d 381

(9th Cir. 1993). See also Consolidated Rail Corp. v.

Railway Labor Executives’ Ass’n, 491 U.S. 299, 105

L.Ed.2d 250, 261 (1989) ("major disputes seek to create

contractual rights, minor disputes to enforce them"); Hirras

vy. Nat'l Railroad Passenger Corp., 10 F.3d 1142, 1145 (Sth

Cir. 1994) (minor disputes include any claims "founded upon

some incident of the employment relationship" even

independent of the collective bargaining agreement).

In sum, as plaintiff herein is seeking redress for harm

suffered as a result of his discharge from Southwest, and his

employment relationship is governed by the ROPA

agreement, this Court considers his claim a "minor dispute"

subject to the provisions of section 184 of the RLA.

Because this claim has already been considered by the board

of adjustment, and plaintiff does not allege any procedural

improprieties with that process, this Court lacks jurisdiction

to consider the merits of plaintiff's claim.

Plaintiff, however, disputes that his claim is a "minor

dispute” subject to the exclusive jurisdiction of the board of

adjustment. For support, plaintiff relies primarily on the

Tenth Circuit’s decision in Davies v. American Airlines,

App. 2.5

Inc., 971 F.2d 463 (10th Cir. 1992), cert. denied, 124 L.

Ed. 2d 657 (10th Cir. 1992).

In Davies, the "gravamen" of plaintiff’s action was that

his employer’s primary motivation in firing him, regardless

of any "just cause", was to stop his unionizing activity. Id.

at 466. The Davies court adopted a position contrary to that

of this circuit, namely that Davies’ action did not require

interpretation of a collective bargaining agreement and was

thus not preempted by the RLA. The Davies court extended

the holding of Lingle v. Magic Chef, 486 U.S. 399 (1988),

a case involving a retaliatory discharge claim under the

Labor Management Relations Act ("LMRA")', to RLA

claims.

However, the Ninth Circuit had previously refused to

make the same extension of Lingle, and distinguished Lingle

as applying to LMRA cases, not RLA cases. See Grote v.

Trans World Airlines, Inc., 905 F.2d 1307 (9th Cir.), cert.

denied, 498 U.S. 958 (1990) ("[t]he preemption created

under the RLA and that arising under § 301 of the LMRA

are not analogous. . . . [BJecause the RLA’s preemptive

force appears on the face of the statute and § 301 preemption

is judicially imposed, we conclude that preemption under the

RLA is broader than under § 301."). Since Davies is not the

law of this circuit, plaintiff's argument must fail and his

claim deemed a "minor dispute" subject to the arbitral

provisions of the RLA.

' Section 301 of the LMRA states that “suits for violation of

contracts between an employer and a labor organization . . . May be

brought in any district court of the United States." 29 U.S.C. § 185(a)

(1982).

App. 2.6

Ul. EAainiEl 2. Sanne SS SIA Dt

152, Fourth,

Right of A = Ir ted

by a ive ining R ive.

Fennessy also attempts to state a claim under section

152, (Fourth) of the RLA, which provides, in pertinent part:

No carrier, its officers, or agents shall deny or in

any way question the right of its employees to join,

organize, or assist in organizing the labor

organization of their choice, and it shall be unlawful

for any carrier to interfere in any way with the

organization of its employees . . . or to influence or

coerce employees in an effort to induce them to join

or remain or not to join or remain members of any

labor organization.

45 U.S.C. § 152 (Fourth). By enactment of this provision,

Congress sought to protect employees’ rights by ensuring

that employees’ designation of bargaining representatives

would be free from employer coercion or interference.

International Ass’n of Machinists & Aerospace Workers v.

Northwest Airlines, 673 F.2d 700, 707 (3d Cir. 1982). To

further this aim, Congress empowered the National

Mediation Board to resolve representational disputes. 45

U.S.C. § 152 (Ninth).

Plaintiff asserts that he can maintain a private right of

action under section 152 (Fourth) for his wrongful discharge.

However, as defendant aptly points out, section 152 (Fourth)

provides only limited rights outside the context of

representational disputes. See International _Ass’n_of

Machinists, 673 F.2d at 707. For instance, plaintiff would

have had a right against wrongful discharge for his

Ske tlk a de i ee

App. 2.7

participation in union organizing campaigns prior to a

designation of a representative or to a certification by the

mediation board. See, e.g., Burke v. Compania Mexicana

De Aviacion, S.A., 433 F.2d 1031 (9th Cir. 1970) (a private

right of action exists for Sn ties a

(Fourth) se no relevance ¢ once a bargaining representative,

such as ROPA here, has been designated, because with a

bargaining agreement in place, employees have a viable

mechanism (the board of adjustment) through which to

dispute their discharges. International Ass’n of Machinists,

673 F.2d at 707, 707 n.6.* But see Independent Union of

Flight Attendants v. Pan American, 789 F.2d 139, 141-42

(2d Cir. 1985) (the statutorily-created adjustment board

procedure might be considered ineffective, and federal

judicial intervention is warranted, only where it is c lear that

th ’sS "been motiv: i-union

animus or . . . an attempt to interfere with its employees’

choice of their collective bargaining representative.")

(quoting Tello v. Soo Line R.R., 772 F.2d 458, 462 (8th

Cir. 1985)) (emphasis added).

* International _Ass’n of Machinists involved a claim by a

recognized collective bargaining agent that four shop stewards had been

discharged or suspended on sham charges because of their employer's

anti-union animus. Pursuant to a procedure provided in the collective

bargaining agreement, the stewards had brought grievances and had

hearings before a board of adjustment. The Third Circuit vacated the

district court’s finding of jurisdiction and held that the board of

adjustment was the sole and proper method for resolving these disputes.

3 This Court need not analyze plaintiff's claim under the Eighth

Circuit’s interpretation of section 152 (Fourth) in Telio, 772 F.2d at 462.

However, even if Tello applies, it is not clear to this Court that the board

of adjustment procedure in which plaintiff participated was ineffective

App. 2.8

As plaintiff has had an adequate remedy to dispute his

discharge (the board of adjustment hearing), this Court holds

that plaintiff’s claim under section 152 (Fourth) must fail as

a matter of law.

IV. Plaintiff's Complaint Does Not Mention a

Claim Which Would Not

In his opposition papers, plaintiff presents, for the

first time, a claim that his discharge violated California

Labor Code section 923, which states in pertinent part that

an employee "shall be free from the interference, restraint,

or coercion of employers of labor, or their agents, in the

designation of [union] representatives .. ." As plaintiff's

Complaint asserted that "[t]his is an action arising under the

Railway Labor Act. . .", and plaintiff made no mention of

a state law employment claim, plaintiff has not met the

requirements for notice pleading set forth in Fed. Rule Civ.

Proc. 8.

In any event, as explained in section II, supra, any

claim relating to plaintiff's alleged wrongful discharge is

preempted by the RLA. See Edelman, 892 F.2d at 843 (if

the basic injury complained of is wrongful discharge, the

complaint involves a minor dispute which must be arbitrated

in accordance with the RLA).

due to anti-union animus on the part of Southwest management or ROPA.

See International Ass’n of Machinists, 673 F.2d at 712 (plaintiff may not

rely on “conclusory allegations" that the employer interfered with the

union’s representation of its members).

App. 2.9

V. Conclusion

It is THEREFORE ORDERED, ADJUDGED, AND

DECREED that defendant Southwest’s Motion for Summary

Judgment is HEREBY GRANTED in its entirety. As

plaintiff Fennessy’s claims for wrongful discharge and

violation of 45 U.S.C. § 152 (Fourth) are "minor disputes"

subject to the provisions of the Railway Labor Act, this

Court is without jurisdiction to decide them. Furthermore,

any state claim plaintiff may proffer is likewise preempted.

IT IS SO ORDERED.

/s/

RICHARD A. GADBOIS, JR.

United States District Judge

DATED: March 28, 1994

App. 3.1

NOT FOR PUBLICATION

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICK FENNESSY, )

Plaintiff-Appellant CA No. 94-55630

v. DC No. CV-93-02820-RG

SOUTHWEST AIRLINES, ORDER“

Defendant-Appellee )

BEFORE: FLETCHER, CANBY, and HAWKINS, Circuit Judge

The panel has voted to deny defendant-appellee’s

petition for rehearing and to reject the suggestion for

rehearing en banc.

The full court has been advised of the suggestion for

rehearing en banc and no active judge has requested a vote

on whether to rehear the matter en banc. Fed. R. App. P.

35.

The petition for rehearing is denied and the

suggestion for rehearing en banc is rejected.

* Filed December 6, 1996, Cathy A. Catterson, Clerk, U.S. Court

of Appeals.

App. 4.1

Relevant Provisions of the Railway Labor Act

45 U.S.C. § 151la provides in relevant part:

The purposes of the chapter are: (1) to avoid any

interruption to commerce or to the operation of any

carrier engaged therein; (2) to forbid any limitation

upon freedom of association among employees or any

denial, as a condition of employment or otherwise, of

the right of employees to join a labor organization;

... (5) to provide for the prompt and orderly

settlement of all disputes growing out of grievances

or out of the interpretation or application of

agreements covering rates of pay, rules, or working

conditions.

45 U.S.C. § 152, First provides:

It shall be the duty of all carriers, their officers,

agents, and employees to exert every reasonable

effort to make and maintain agreements concerning

rates of pay, rules, and working conditions, and to

settle all disputes, whether arising out of the

application of such agreements or otherwise, in order

to avoid any interruption to commerce or to the

operation of any carrier growing out of any dispute

between the carrier and the employees thereof.

45 U.S.C. § 152, Fourth provides in relevant part:

Employees shall have the right to organize and

bargain collectively through representatives of their

own choosing.... No carrier, its officers or

agents, shall deny or in any way question the right of

its employees to join, organize, or assist in

App. 4.2

organizing the labor organization of their choice, and

it shall be unlawful for any carrier to interfere in any

way with the organization of its employees... .

45 U.S.C. § 152, Eighth provides in relevant part:

Every carrier shall notify its employees by printed

notices . . . that all disputes between the carrier and

its employees will be handled in accordance with the

requirements of this chapter, and in such notices

there shall be printed verbatim, in large type, the

third, fourth and fifth paragraphs of this section. The

provisions of said paragraphs are hereby made a part

of the contract of employment between the carrier

and each employee, and shall be held binding upon

the parties, regardless of any other express or implied

agreements between them.

45 U.S.C. § 153, First (q) provides in relevant part:

If any employee ... is aggrieved by any of the

terms of an award or by the failure of the division to

include certain terms in such award, then such

employee . . . may file in any United States district

court ... a petition for review of the division’s

order.... The court shall have jurisdiction to

affirm the order of the division or to set it aside, in

whole or in part, or it may remand the proceeding to

the division for such further action as it may direct.

On such review, the findings and order of the

division shall be conclusive on the parties, except that

the order of the division may be set aside, in whole

or in part, or remanded to the division for failure of

the division to comply with the requirements of this

chapter, for failure of the order to conform, or

App. 4.3

confine itself, to matters within the scope of the

division’s jurisdiction, or for fraud or corruption by

a member of the division making the order. The

judgment of the court shall be subject to review as

provided in sections 1291 and 1254 of Title 28.

45 U.S.C. § 184 provides in relevant part:

The disputes between an employee or group of

employees and a carrier or carriers by air growing

out of grievances, or out of the interpretation or

application of agreements concerning rates of pay,

rules, or working conditions, . . . shall be handled in

the usual manner up to and including the chief

operating officer of the carrier designated to handle

such disputes; but, failing to reach an adjustment in

this manner, the disputes may be referred by petition

of the parties or by either party to an appropriate

adjustment board... .

It shall be the duty of every carrier and of its

employees, acting through their representatives,

selected in accordance with the provisions of this

subchapter, to establish a board of aujustment of

jurisdiction not exceeding the jurisdiction which may

be lawfully exercised by system ... boards of

adjustment under section 153 of this title.