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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1210

## Text

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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PA ns aig Pm

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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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i

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0272%3A1. Public record. Not legal advice.