Opposition Brief — Lindsay v. Association of Professional Flight Attendants

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No. 09-1310

IN THE a SEE CT Ba

Supreme Court of the Anited State

JILL LINDSAY, et al.,

Petitioners,

ASSOCIATION OF PROFESSIONAL

FLIGHT ATTENDANTS, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF IN OPPOSITION OF RESPONDENTS

ASSOCIATION OF PROFESSIONAL FLIGHT

ATTENDANTS AND JOHN WARD,

AS PRESIDENT OF APFA

STEPHEN B. MOLDOF

Counsel of Record

MICHAEL L. WINSTON

TRAVIS M. MASTRODDI

COHEN, WEISS AND SIMON LLP

330 West 42nd Street

New York, New York 10036

(212) 563-4100

smoldof@cwsny.com

Counsel for Respondents

Association of Professional

Flight Attendants and John

Ward, as President of APFA

May 28, 2010

x fos RELI CTO

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

QUESTIONS PRESENTED FOR REVIEW

1. Whether the court below, after determining on

the record presented and consistently with decisions

of this Court that there was no basis for plaintiffs’

claims that the Association of Professional Flight

Attendants breached the federal duty of fair repre-

sentation (“DFR”) in its negotiation and ratification

of a collective bargaining agreement aimed at fores-

talling a credible, imminent threat of a bankruptcy

filing by American Airlines, correctly also determined

that plaintiffs’ state law claims, predicated upon the

same facts as their unsuccessful DFR claims (which

they no longer are pursuing), are preempted?

2. Did the court below, after reviewing the text and

structure of the Railway Labor Act (“RLA”) and appi-

cable case law, correctly determine that individual

employees cannot pursue claims against their employer

that seek to invalidate a collective bargaining agree-

ment (negotiated by their union and ratified by the

employees) under the RLA “status quo” provisions,

Section 2, First and Seventh, 45 U.S.C. § 152, First

and Seventh?

(1)

CORPORATE DISCLOSURE STATEMENT

Pursuant to Sup. Ct. R. 29.6, Respondents Associa-

tion of Professional Flight Attendants (“APFA”) and

John Ward, as President of APFA, hereby state that

APFA is an unincorporated association, that John

Ward, as President of APFA, is an individual, that

neither APFA nor John Ward has any parent cor-

poration, subsidiary or affiliate, and that no public

company owns 10% or more of stock in either APFA

or John Ward (there being no such issued stock).

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW.......

CORPORATE DISCLOSURE STATEMENT..... ii

TABLE OF AUT RCIRE i vscnccessecnceassrcsencessaseses iV

STATEMENT OF THE CASE ......................00065 1

Biss isaac casisecntecasenscsentatcemen eas

D. PVOCCCTU IE TRIO ssiccsincscicsiccccssessessasesesccens

Cad Re Se scatter oe 9

CE) Career’ 06F PO inisisiisctnciccerecscsase snc 11

REASONS WHY THE WRIT SHOULD BE

EPEG ON IOEE okcdses theeja retina 13

I. THE RULING BELOW THAT THE

ISSUES PRESENTED IN PLAINTIFFS’

CLAIMS ARE TO BE DETERMINED

EXCLUSIVELY BY FEDERAL LABOR

LAW IS CONSISTENT WITH DECI-

SIONS OF THIS COURT AND OTHER

APP ELAGT BLASTER C siievcesiessssrecsronseosens 13

Il. THE DETERMINATION BELOW

THAT PLAINTIFFS HEREIN HAVE

NO PRIVATE RIGHT OF ACTION

UNDER SECTION 2, FIRST AND 2,

SEVENTH OF THE RLA CREATES NO

CONFLICT WARRANTING REVIEW .... 24

CFP it OES insane sianaseieaoves caviaumenseanentereeeneene 30

(111)

TABLE OF AUTHORITIES

CASES Page

Acri v. IAM, 781 F.2d 1393 (9th Cir.

WO i vuielcsksck cave iivacesniataweoacaakGtuceamanin antes 15

Adcox v. Teledyne, Inc., 21 F.3d 1381 (6th

i ek ol ae 16

Air Line Pilots Ass’n, Int'l v. O’Neill, 499

Fi ME oiiccirs ubpd lava tdaa nding biansecu denn passim

Air Line Pilots Ass’n, Int'l v. Pan Am

World Airways, Inc., 765 F.2d 377 (2d

ee asee ac ceres vuts stu cGiee ec sestadden des 26

Air Transport Ass’n v. City and County of

San Francisco, 266 F.3d 1064 (9th Cir.

ER Sisco cece en aa als ane cane es ee ele 72

Air Wisconsin Pilots Prot. Comm. uv.

Sanderson, 909 F.2d 213 (7th Cir. 1990). 17

Allis-Chalmers Corp. v. Lueck, 471 U.S.

ID crits cocceiagecericcvanniats enageunceaeatines 14

Amalgamated Ass’n of St., Elec. Ry. &

Motor Coach Employees v. Lockridge,

es Bee ERT ih ciiotenesicncercdidanensipencnes 14, 24

Anderson v. United Paperworkers Int'l

Union, 641 F.2d 574 (8th Cir. 1981)........ 15-16

Baker v. Newspaper and Graphic Comme’ns

Union, Locai 6, 628 F.2d 156 (D.C. Cir.

| Ber TRATION SPN ree 16

Bates v. Bhd. of Locomotive Firemen and

Enginemen, 56 L.R.R.M. (BNA) 2274

CO ee a NN sei teviksesiadiiess eereeeres 16

Bensel v. Allied Pilots Ass’n, 387 F.3d 298

CE re ircsichacsiiperstevasecasccnen M4, 21, 2/. 20

Bensel vu. Allied Pilots Ass’n, 271 F.Supp.

DE GEG CE) ad, DOS) aces esccescnccesccoccnessesecss 21

TABLE OF AUTHORITIES—Continued

Page

BIW Deceived v. Local S6, Indus. Union of

Marine and Shipbuilding Workers, 132

DF cetk Che CABG AAT, TTD onc cciscicsosscecccossceneess a1

Bhd. of R.R. Trainmen v. Jacksonville

Terminal Co., 394 U.S. 369 (1969).......... passim

Bhd. of R.R. Trainmen v. Smith, 251 F.2d

Be Oe Gi I eckson cases sccectonsssabearienceres 29

Burke v. Compania Mexicana De Aviacion,

S.A., 433 F.2d 1031 (9th Cir, 1970).......... 28

Carbone v. Meserve, 645 F.2d 96 (1st Cir.

DUE taiiass tnareaeahacaneiheivnentea anomalies 29

Chicago and N.W. Ry. Co. v. United Transp.

Union, 402 U.S. 570 (1971) ............ 26-27, 28-29

Colorado Anti-Discrimination Comm'n uv.

Continental Air Lines, Inc., 372 U.S. 714

ins oa asec sci et nannedaeteteeenens 22

Communications Workers v. Beck, 487 U.S.

I i iiich os x santas acess ncindccendaaines 15, 18

Condon v. Local 2944 United Steelworkers,

683 F.2d SOD (ist Cir. 1062) «.....05.:.<<00<ses. 21.23

Consolidated Rail Corp. v. Ry. Labor

Executives’ Ass’n, 491 U.S. 299 (1989)..... 28

Cooper v. TWA Airlines, LLC, 184 L.R.R.M.

(BNA) 2801 (E.D.N.Y. 2008)..................... 11

Cooper v. TWA Airlines, LLC, 349 F.Supp.

Fe Ry Te, Bi viv v sai deeccasinciecsnceyeces 6, 21

Cooper v. TWA Airlines, LLC, 274 F.Supp.

Be Bek CEE BIN, Fc BMD vnciinsinciesacincordevecens: 10

Cort v. Aah, 422 U.S. GG (1G 1S) vccescccesiccesscss. 27

Davenport v. IBT, 166 F.3d 356 (D.C. Cir.

Rey estas ccsura Lens aeajedeaiens ste Aa ee

DeBoles v. Trans World Airlines, Inc., 552

ge BR 8 tT a ts ie 5 Ree 16

TABLE OF AUTHORITIES—Continued

Page

DelCostello v. IBT, 462 U.S. 151 (1988) ...... 17

Detroit and Toledo Shore Line R.R. Co. v.

United Transp. Union, 396 U.S. 142

ee esas egies ee twacacs adeneai nukes 26, 29

Dunn v. Air Line Pilots Ass'n, 836 F.Supp.

Fe Sc ke, COP vivksvsvcesexncenssesasstvesenss 21

Dwellingham v. Thompson, 91 F.Supp. 787

(E.D. Mo. 1950), affd sub nom., Rolfes v.

Dwellingham, 198 F.2d 591 (8th Cir.

eR cette a ced ci cbnabsanedi cauiastirnss 29-30

E.I. DuPont de Nemours & Co. v. Sawyer,

517 F.3d 785 (5th Cir. 2008)..................... 20

Elgin, J. & E. Ry. Co. v. Burley, 325 U.S.

eis scacsiahchassastaparddakisinguenbeaciinsetcein 25

Golden State Transit Corp. v. City of Los

Angeles, 475 U.S. 608 (1981).................06 18

Griffin v. Air Line Pilots Ass’n, Int'l, Case

No. 93-C-719, 1993 WL 348568 (N.D. III.

Sept. 3, 1993), affd, 32 F.3d 1079 (7th

EE RARER Ra ON AES rr 21

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

oe oe cascade ea beiasnwtanns 22

Hendricks v. Air Line Pilots Ass’n, Int’,

696 F.2d 673 (Sth Cir. 1963)..........000.0.05.:. 26

Hilbert v. Pennsylvania R.R. Co., 290 F.2d

Be UE Fg accpcuees dndseavascacenncvcenscints 28

Hines v. Davidowitz, 312 U.S. 52 (1941)..... 20

Humphrey vu. Moore, 375 U.S. 353

hw otcuss Wagduaeowuneenanenae) 13, 16, 17

IAM v. Central Airlines, Inc., 372 U.S. 682

TR RR ey ev ne petiloneng sede ltd sine are tae 14, 15, 18

v1l

TABLE OF AUTHORITIES “d

IAM v. Transportes Aereos Mercantiles

Pan Americanados, S.A., 924 F.2d 1005

CP ME, HE Pics cadsnacibarecsscounsenkecievicsotinivs

Int'l Bhd. of Elec. Workers v. Foust, 442

Ae tg SUE 8 rE ctncastarcuthnanionscomnenenctastueeriecess

JI. Case Co. v. N.L.R.B., 321 U.S. 332

CR IIIC sc xan casaianarcdavad: ctu beupameareksanineeewensannasers

James v. Intl Bhd. of Locomotive Eng’rs,

302 F.3d 1139 (10th Cir. 2002).................

Johnson v. UFCW, Local No. 23, 828 F.2d

961 (8d Cir. 1987)............. et abausiieaeatea nites

Jones v. Pepsi Cola Bottling Co., 822

F.Supp. 396 (E.D. Mich. 1993)...............

Jones v. Trans World Airlines, 495 F 24

Pe il Be iinicasa vssatavcedesssenisacasicczans

Kasechak v. Consol. Rail Corp., 707 F.2d

ee te te BI tikdsncinedsnctacsiseervccunsns

Kaufman v. Allied Pilots Ass’n, 2774 F.3d

DE Cee Gs EF cacti cen eeanakiwnsecactadnnnees

Kushto v. Bhd. of Ry. Airline & S.S.

Clerks, 818 F.2d 290 (4th Cir. 1987)........

Leber v. Universal Music and Video Distrib.,

Inc., 225 F.Supp.2d 928 (S.D. Ill. 2002)...

Lebow v. Am. Trans. Air Inc., 86 F.3d 661

CF ee Re ss cicaindesettacithvecneaveueriniasmansnss

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

486 U.S. 399 (1988)............ Ce eee

Lodge 76, IAM v. Wisconsin Employment

Relation Comm’n, 427 U.S. 132 (1976)....

May v. Shuttle, 129 F.3d 165 (D.C. Cir.

BED ics si sn ces appacitiadinsiuia oie puak vattaassadeeraaies)

Mungin v. Florida East Coast Ry. Co., 416

F.2d 1169 (Sth Cir. 1969)..............ccescsseeess

16,

Vill

TABLE OF AUTHORITIES—Continued

Nellis v. Air Line Pilots Ass’n, 805 F.Supp.

355 (E.D. Va. 1992), affd, 15 F.3d 50

ey ici cu a puceanucanewsvanseen’

O’Neill v. Air Line Pilots Ass’n, Int'l, 939

Fe LEGS COG Car. TB). .orccccsscccccessscescees

Order of R.R. Telegraphers v. Chicago &

N.W. Ry. Co., 362 U.S. 330 (1960)............

Order of R.R. Telegraphers v. Ry. Express

Agency, 321 U.S. 342 (1944)...

Order of Ry. Conductors v. Pitney, 326

er iy I cot uaa voscekscpdnccasdbischcancdccenns

Parker v. Connors Steel Co., 855 F.2d 1510

Pe odes vaso dca ce daccncaskechsuscsexsxes

Peterson v. Air Line Pilots Ass’n, Int'l, 759

F.2d 1161 (4th Cir. 1985)............... 16, 19,

Peterson v. Kennedy, 771 F.2d 1244 (9th

eae cusemivalys

Price v, UAW, 927 F.2d 88 (2d Cir. 1991)....

Railroad Yardmasters v. Pennsylvania

R.R. Co., 224 F.2d 226 (3d Cir. 1955).......

Ry. Employees’ Dep’t v. Hanson, 351 U.S.

2S AN A en NR ee

Rakestraw v. United Airlines, Inc., 981

Fee BOS C1081 CAT. TODS). icccessscceccecscesses.

Regional Airline Pilots Ass’n, Inc. v. Wings

West Airlines, Inc., 915 F.2d 1399 (9th

ooh ais en op sant sdregaddaneniuadieoatens

Ryan v. New York Newspaper Printing

Pressman’s Union No. 2, 590 F.2d 451

Ce ess aucodaenadpincdbovees

San Diego Building Trades Council v

21, 2.

Garmon, 359 U.S. 236 (1959)..............19, 20, 23

TABLE OF AUTHORITIES—Continued

Page

Serrano v. Jones & Laughlin Steel Co., 790

PF Bee Free ii crcseccarccccccscscvesses 20

Sears, Roebuck & Co. v. Carpenters, 436

LL) BB. Bae a racctcicbcascssevsssvecsceeces 20

Sim vu. New York Mailers’ Union Number

6, 166 F.3d 465 (2d Cir. 1999).................. 16

Southern Ry. Co. v. Bhd. of Locomotive

Firemen & Enginemen, 384 F.2d 323

CED), aR aa iivrasscacsccassycossse: 29

Steele v. Brewery and Soft Drink Workers

Local 1162, 432 F.Supp. 369 (N.D. Ind.

1b Uy ff Peer re 21

Steele v. Louisville & N. R. Co., 323 U.S.

EPS (Re erates eek asesiccosdccccccess. 1S, 16, 2d

Stepanischen v. Merchants Despatch Transp.

Corp., 722 F.2d 922 (1st Cir. 1983).......... 28

Talbot v. Robert Matthews Distrib. Co.,

961 F.2d 654 (7th Cir. 1992)..................... 20

Terminal R. Ass’n of St. Louis v. Bhd. of

R.R. Trainmen, 318 U.S. 1 (1948)............ 22

Texas & N. O. R. R. Co. v. Bhd. of Ry. &

S.S. Clerks, 281 U.S. 548 (1930) .............. 26, 28

United Credit Bureau v. N.L.R.B., 643

F’.2G TOE 7 Ce BO Picasccsssccssscccccccccese 20

United Indep. Flight Officers, Inc. v.

United Air Lines, Inc., 756 F.2d 1274

TERN Eat ea vee c da dnvicsacassscesess. | 23

United Indus. Workers v. Bd. of Trs. of

Gaiveston Wharves, 351 F.2d 183 (5th

Oe OO 29

United Transp. Union, Local 63E. v. Pe run

Cent. Co., 443 F.2d 131 (6th Cir. 1971).... 29

TABLE OF AUTHORITIES—Continued

Page

Vaca v. Stipes, 386 U.S. 171 (1967) ............ passim

Virginian R.R. Co. v. Sys. Fed’n, No. 40,

300 U.S. 515 (1987)...... ssacseaedatnecniaaas 6, 29

Watson v. IBT’, 399 F.2d 875 (5th Cir.

a aa a a 26

White v. White Rose Foods, 237 F.3d 174

aE REE HII F icioaeccckscntacdxssrsiacycrettameunsonas 16

Wisconsin Cent. v. Shannon, 539 F.3d 751

Cee se MEE vation sdk sedeces<h0 cocnusavaisnacaaiiens Ze

Wisconsin Dep't of Indus. v. Gould, Inc.,

Te er ce We ick kiss endcivedesesaccaxantacadss 14

STATUTES

Adamson Act of 1916, 49 U.S.C, § 28301 22

Labor Management Reporting and Disclo

sure Act

BORE me Tl) a |. eee | 9

Section 101(a)(4), 29 U.S.C. § 411(a)(4)... 28

Railway Labor Act

> Gi ieees We Wy OF BID, cicttcrasivsnisvermremres passim

Section 2, First, 45 U.S.C. 8 152,

I loss ne ee eee 12, 24, 25, 26

Section 2, Third, 45 U.S.C. § 2, Third...... 28

Section 2, Fourth, 45 U.S.C. § 2, Fourth.. 28

Section 2, Seventh, 45 U.S.C. § 152

seventh...... is. 2%. 20

Section 2. Eleventh, 45 U.S.C. 8 152.

+ EI PRE eR ae pe inten BAN 18

xX]

TABLE OF AUTHORITIES—Continued

Page

National Labor Relations Act

Bee Fem 2). Fee 14

Section 8(a)(3), 29 U.S.C. § 158(aX(3)....... 18

Section 14(b), 29 U.S.C. § 164(b).............. 18

Racketeer Influenced and Corrupt Organ

izations Act, 18 U.S.C. §§ 1961, ed seg. .... 9

REA 2am 81 RRS eee eee 4

TREATISES

American Bar Ass'n, THE RAILWAY LABOR

Act (Michael E. Abram, et al., eds., 2d

Cs SEES ORD DCN SA Ce es ere een SAIN 26

MISCELLANEOUS

81 Cong. Rec. 16320-33, 16371-78 (1950),

reprinted in THE RAILWAY LABOR ACT OF

1926, A LEGISLATIVE HISTORY (Michael

H. Campbell & Edward C. Brewer, III,

eds., William S. Hein & Co.) (1988) ......... 18-19

IN THE

Supreme Court of the United States

No. 09-1210

JILL LINDSAY, et al.,

Petitioners,

ASSOCIATION OF PROFESSIONAL

FLIGHT ATTENDANTS, ef? al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF LN OPPOSITION OF RESPONDENTS

ASSOCIATION OF PROFESSIONAL FLIGHT

ATTENDANTS AND JOHN WARD,

AS PRESIDENT OF APFA

STATEMENT OF THE CASE

Following the catastrophic events of 9/11, American

Airlines (“American” or “the Company”) lost billions

of dollars. By early 2003, with its condition rapidly

worsening, the Company threatened to file for

bankruptcy unless all three unions representing its

employees (including respondent Association of Pro-

fessional Flight Attendants (““APFA” or the “Union”))

entered into and ratified highly concessionary agree-

ments by a very tight, Company-dictated deadline,

and, if it filed for bankruptcy, to ground many

aircraft, seek far greater concessions and furlough

thousands more flight attendants than if it reached

agreements outside of bankruptcy.

After the three unions’ financial advisors concluded

that the Company’s bankruptcy threat was well

founded, APFA’s Board of Directors (“BOD”), its high-

est governing body, made a series of difficult deci-

sions that it believed in good faith would best protect

the American flight attendants’ interests: (1) to

negotiate a concessionary agreement with American

(which became the “Restructuring Participation

Agreement” or “RPA”); (2) to substitute an expedited

15-day telephonic member ratification process for the

Union’s normal 30-day mail ballot (in order to meet

the Company’s ratification deadline); (3) to accept

American’s offer to defer the threatened bankruptcy

by one day in order to extend member balloting; and

(4) to resolve a new dispute with American over

executive benefits that arose after the RPA had heen

ratitied and in the face of a renewed Company

bankruptcy threat.

The thrust of plaintiffs’ lawsuit was that these

collective bargaining actions breached APFA’s duty of

fair representation (“DFR”), that American was a

party to those breaches, and that the RPA should be

vacated and the prior non-concessionary 2001 collective

bargaining agreement (the “2001 CBA”) should be

restored. The Second Circuit unanimously affirmed

the district court’s determination, based on a detailed

record and governing decisions of this and other

Courts, that there was no basis for plaintiffs’ claims.

Among other things, the courts concluded that

the circumstances then confronting APFA, including

American’s dire economic straits and bankruptcy

threat, “preclude any reasonable factfinder” from con-

cluding that APFA’s decisions related to the RPA

negotiations and ratification were made “irrationally,

arbitrarily, or in bad faith,” and that plaintiffs’ state

law claims, based on the same allegations as the DFR

claims, were preempted. Pet., pp. 2la-24a, 26a-29a

(Second Circuit), 84a-90a (district court).’

Plaintiffs have now abandoned their DFR claims

and seek review only of the dismissal of their state

law claims (brought against APFA and American) and

of certain claims brought against American under the

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

1. The Facts

APFA’s “industry-leading” 2001 CBA, obtained after

years of negotiations with American, was over-

whelmingly ratified by the APFA membership on

September 12, 2001. Pet., p. 36a. There was no

membership celebration, however; the previous day

two American aircraft were hijacked and destroyed,

and colleagues’ lives were lost. JA-3522. In the

aftermath of 9/11, American suffered billions in losses

in 2001 and 2002. Pet., p. 37a. When American

projected even greater losses in the first quarter of

2003, it demanded in February 2003 that the three

unions representing Company employees’ agree to

massive concessions (including $340 million annually

”

'“Pet., p. __” refers to the petition for a writ of certiorari.

“Pet., p. _a” refers to the appendix annexed to the petition

wherein the lower court opinions in this case are reproduced.

“JA-___” refers to the documents in the joint appendix submit-

ted to the court of appeals.

* The Allied Pilots Association (“APA”) represents American’s

pilots; the Transport Workers Union (“TWU”) represents certain

American ground employees. Pet., p. 37a; JA-3485, JA-5119 (q 29).

from APFA) by March 31, and obtain membership

ratification by April 15, or the Company would file for

bankruptcy. Pet., pp. 38a-40a, 44a; see Pet., pp. 41a-

42a, 45a; see also Pet., pp. 46a-47a (American intended

to file for bankruptcy absent concessionary agree-

ments). The financia] advisors for ail three unions,

after a thorough review of Company and public

data, concluded that an imminent bankruptcy filing

was highly likely unless the unions agreed to the

Company-mandated cost reductions and deadlines.

Pet., pp. 40a-42a, 86a; JA-4042.

APFA decided to negotiate an agreement with

American “in order to avoid [an American] bank-

ruptcy,” Pet., p. 40a, but before APFA agreed to the

level of concessions the Company demanded (as did

APA and TWU, see JA-2457, JA-5146 (| 67); JA-3505,

JA-5125 (4 101)), it attempted, unsuccessfully, to

negotiate “upsides” to partly offset the concessions,

Pet., p. 46a, and considered American’s dire financial

condition, as well as the Company’s bankruptcy plan,

shared with APFA and the flight attendants, to seck,

through rejection of the 2001 CBA (under Section

1113 of the Bankruptcy Code, 11 U.S.C. § 1113), 40%

greater cost reductions ($470 million annually) and to

furlough 2,500 more flight attendants than under an

agreement reached outside of bankruptcy. Pet, pp.

40a-44a, 46a-47a, 84a-85a. And, before the BOD

decided to conduct an expedited telephonic ratification

vote under these unanticipated, emergency circums-

tances, it considered not only the views of those who

drafted the APFA Constitution, Pet., pp. 49a-51a, but

also that if it used a 30-day mail ballot, the vote

would not conclude until after the Company had filed

for bankruptcy, rendering the vote symbolic and

meaningless. Pet., pp. 49a-51a; see JA-326; JA-3500-

01; JA-3990.

Throughout the negotiations and ratification process,

the APFA leadership kept its members fully informed

with contemporaneous updates regarding the existing

circumstances and the BOD’s actions and reasoning.

Pet., pp. 43a-44a, 5la-53a. Before the ratification

balloting began, APFA provided its members with “a

detailed description of the RPA’s terms,” Pet., p. 52a,

making no effort to hide their “ugliness.” JA-3591;

JA-3546-47; Pet., p. 58a. (Nevertheless, APFA strongly

recommended that flight attendants defer voting until

they received final contract language, for which

APFA was urging American’s prompt agreement.

Pet., p. 52a; JA-3501, JA-5121 (J 85); JA-3548).

Notwithstanding APFA’s agreement to the RPA,

subject to membership ratification, it thereafter pur-

sued and obtained American’s agreement to several

improvements to lessen the RPA’s impact (shorter

duration, early reopening option, potential additional

mid-term wage increases, earlier vesting of stock

options), without providing any offsetting concessions

to American. Pet., p. 53a.

Prior to April 15, APFA President Ward “consistently

sought more [voting] time for APFA members” Pet.,

pp. 53a-54a, 85a-86a, but the Company refused to

extend the deadline until finally, in the early morning

on April 15, it offered a one-day extension. Pet., pp.

49a, 53a-54a. Ward considered the offer insufficient

and did not accept it, contra Pet., pp. 29-30 n.21

(91 4-5), but agreed to refer it to the BOD for

consideration. Pet., pp. 54a, 85a. By the time the

BOD met later that day, it was aware that APA and

TWU had ratified their RPAs and that, as of 10 AM

on April 15, the APFA RPA had been narrowly rejected

(9,842 “no” to 9,309 “yes”). Pet., p. 55a. The BOD

carefully weighed the issues and alternatives, found

multiple compelling reasons why an extension—

which the Union had been seeking all along—would

further “the best interests of the membership”

(as detailed in the district court’s findings, Pet., pp.

55a-56a), and also determined to offer flight atten-

dants the same option the other two unions had given

their members to change their initial vote if they so

desired. Pet., pp. 55a-56a, 85a-86a.° During the

balloting extension, all members were afforded the

opportunity to vote for the first time (approximately

1,300 did), to revote (either as they had previously or

by changing their vote), or to refrain from voting (in

which case their prior vote, if any, would be counted).

Pet., p. 57a.

During the extension, the Company communicated

to flight attendants regarding the continued prospect

of a bankruptcy filing, as it had throughout and

before the balloting period, which evoked an immediate

protest by Ward. Pet., pp. 57a-6la.

* Plaintiffs allege certain shortcomings with the ratification

voting that all pertain to their now abandoned DFR claims, are

irrelevant to the issues for which they seek review, and are con-

trary to the record. For example, contra Pet., pp. 29-30 n.21

(¥4] 1-4), no one knew how any flight attendant ‘ oted and there

is no evidence that vote “monitoring” was used in any way by

APFA or motivated the Company to agree to RPA enhancements

or offer to extend the balloting. JA-552; JA-599-601; JA-892;

JA-3511, JA-5129 ( 128); JA-3670; JA-3675; JA-3725; JA-3736-

37; JA-3807-10; JA-4013. Also, no evidence exists that the vote-

change option “compromise[d] the vote’s integrity” or that the

BOD “knew” that it would, contra Pet., p. 4.n.1; see JA-4992-93

(V1 89-91): on the contrary, the American Arbitration Associa-

tion (“AAA”), which conducted the balloting, Pet., p. 5la, used

extensive safeguards during the extension to ensure voting

integrity. JA-524; JA-586; JA-727-28; JA-1253; JA-1264; JA-

1271-73; see Pet., p. 57a.

At the conclusion of balloting on April 16, the final

tally was 10,761 “yes” votes and 9,652 “no” votes,* the

AAA certified the results, and APFA and American

then considered there to be a ratified RPA. Pet., p.

57a; JA-1468.

The next morning, the press reported that the

Company had provided executives with retention

bonuses and funded a special bankruptcy-shielded

retirement plan. Pet., p. 6la. APFA expressed its

outrage for what it considered a deliberate Company

failure to timely disclose this significant information

to APFA and the flight attendants, JA-3512, JA-5129

({ 132), threatened to reballot the APFA membership

on the RPA (as did TWU with its membership,

JA-3684), and took steps to do so at an April 22 BOD

mecting. Pet., p. 62a.

After an all-day meeting on April 23 among top

officers of the Company and the three unions and four

Texas Congressional representatives, the Company

agreed to additional RPA improvements (further

shortening the duration of the three RPAs, an even

earlier reopening option, a new Annual Incentive

Program more likely to result in payments to

employees than the plan already included in the

RPAs). Pet., pp. 62a-63a, 65a-66a; JA-3819-21. Due

largely to insistence by all three unions, American’s

CEO (Don Carty) resigned on April 24. Pet., p. 63a.

APA and TWU thereafter dropped any further chal-

lenge to finalization of their RPAs, but APFA did not.

Pet., p. 63a; JA-3685. Instead, its officers met that

* Plaintiffs’ argument that votes cast during the extension

were “void” and that only votes cast prior to the extension were

“valid,” Pet., pp. 4.n.1, 29-30 n.21 (4 5), rests on their (incorrect)

contention that the BOD could not authorize a voting extension.

evening with the new American CEO (Gerard Arpey)

and urged him to defer a bankruptcy filing until after

APFA reballoted its membership on the RPA. Pet., p.

63a. Arpey refused. JA-3685-86. However, he agreed

to a specific further change in the APFA RPA that

the Union had been seeking, conditioned upon APFA’s

acceptance by the morning of April 25 and with-

drawal of its decision to reballot the membership,

absent which the Company would file for bankruptcy.

Pet., p. 63a.

Faced once again with highly undesirable alterna-

tives, the BOD determined, on the morning of April

25, to finalize the RPA without a further membership

vote and to secure the RPA improvements to which

the Company had agreed after APFA’s reballoting

threat (which, contra Pet., pp. 29-30 n.21 (4 8), did

not require membership ratification because these

additional changes were all beneficial to the member-

ship and caused no “major changes” to pay or work

rules). Pet., pp. 63a-66a; JA-779-80; JA-3529; JA-3933-

34; JA-4064. The Letter of Agreement signed on

April 25, by its terms, “resolve[d] all disputes which

existled] between [APFA and American] related to

the negotiation, ratification, and final effectiveness of

the Restructuring Agreement, dated April 16, 2003.”

Pet., p. 65a; JA-4138-41. The RPA was implemented

in May 2003. Pet., p. 66a. It is this agreement, in

effect for seven years, that plaintiffs seek to vacate

and replace with the pre-existing 2001 CBA. JA-136.

2. Proceedings Below

Plaintiffs filed a 534-paragraph, 22-count class action

complaint in which they challenged APFA decisions

and American actions related to the negotiation and

ratification of the RPA. JA-42-137. They alleged

that APFA breached its DFR (five of their causes of

action) and violated its Constitution, the Labor-

Management Reporting and Disclosure Act (“LMRDA”),

29 U.S.C. §§ 401, et seqg., and the Racketeer Influ-

enced and Corrupt Organizations Act (“RICO”), 18

U.S.C. §§ 1961, et seq.. They asserted claims against

American for violations of the RLA, state law and

RICO, and for its participation in APFA’s purported

DFR breaches. Plaintiffs sought to vacate the RPA,

to resurrect the 2001 CBA, and hundreds of millions

of dollars in damages.

(a) District Court

In March 2006, the district court dismissed the

RICO claim, two of three LMRDA claims (plaintiffs

subsequently withdrew the third), and all state law

claims against American as preempted. Following

extensive discovery, the parties filed summary judg-

ment motions.

In July 2008, the court granted defendants’ motions,

denied plaintiffs’ motion and dismissed as moot

plaintiffs’ class certification motion. In doing so, the

district court followed the teachings of Air Line Pilots

Ass’n, International v. O’Neill, 499 U.S. 65 (1991), and

its progeny, that a union fulfills its DFR when it

considers the existing factual landscape in determining

how best to protect those whom it represents, that

the union’s judgment calls are not to be second-

guessed, even if others, including courts, might

disagree with them, that a union’s constitution is not

a straitjacket that bars a union from responding

effectively to dire circumstances in order to protect

its members, and that a union does not breach its

DFR unless its conduct is “so far outside a ‘wide

range of reasonableness’ as to be wholly irrational,”

discriminatory, or taken in bad faith, id. at 67. The

district court applied these standards to the record

facts and determined that “[alll evidence indicates

that APFA’s motive was to avoid an American bank-

ruptcy and thereby preserve its members’ interests”

and that “no reasonable jury could find” that APFA

breached its DFR. Pet., pp. 88a-89a.

Among other things, the court found that: (1) APF‘A’s

actions were “rational” and neither arbitrary, in bad

faith nor discriminatory, as the Union was “faced

with the credible threat” that, if it did not reach and

ratify a concessionary agreement by the American-

required deadlines, the Company would file for

bankruptcy and would furlough far more flight

attendants and seek substantially greater concessions;

(2) “APFA’s acceptance of American’s offer for an

extension . . . cannot be viewed as arbitrary or in bad

faith” because Ward “consistently sought more [ballot]

time for APFA members to consider the proposed

RPA”; and (3) there was “no evidence” that APFA’s

decision to enter the April 25 Agreement without

membership ratification was “irrational,” “fraudulent”

or “invidious” as the Union acted on “its reasonable

fear that American would file for bankruptcy in the

absence of agreement.” Pet., pp. 84a-86a.

The district court also concluded that because the

allegations underlying plaintiffs’ state law breach of

Union Constitution claim were the same as those on

which the DFR claims were based, the state claim

was a “mere refinement” of the DFR claims and

therefore “preempted by federal law.” Pet., p. 90a.”

* In a related case brought by former flight attendants for

TWA Airlines (following American’s acquisition of ‘TWA), the

lower court denied the plaintiffs’ motion to enjoin implementa

tion of the RPA, Cooper v. TWA Airlines, LLC, 274 F.Supp.2d

231 (E.D.N.Y. 2003), and subsequently granted summary

judgment for APFA, finding that “APIA did not discriminate

(b) Court of Appeals

The Second Circuit unanimously affirmed the district

court rulings. In accord with O’Neill, 499 U.S. 65,

and like the district court, it evaluated the Union’s

conduct in light of the factual circumstances confronting

the Union at the time it made its various decisions.

It found, among other things, that: “the record is

replete with evidence that American Airlines was, in

fact, in dire economic straits at the time the parties

entered into the [RPA] negotiations”; these “circum-

stances preclude any reasonable factfinder from

concluding that APFA entered into the challenged

negotiations with American Airlines irrationally,

arbitrarily, or in bad faith”; the evidence would not

“admit an inference of arbitrariness or bad faith in the

[expedited] voting procedures used by APFA” given

the “time-sensitive nature of the circumstances”;

“APFA fhad] sought an extension lof balloting]

through the end of April” and there is “no record

evidence that would permit a factfinder to identify

bad faith in APFA’s acceptance” of the Company’s

offer of a one-day ballot extension; and there was “no

record support for plaintiffs’ claim that APFA acted

arbitrarily or in bad faith in finalizing the April 25,

2003” Agreement that provided various benefits to the

flight attendants, as American informed the Union

that “if it did not finalize the [RPA] by April 25, the

airline would declare bankruptcy.” Pet., pp. 26a-29a.

against or act in bad faith with regard to the TWA flight

attendants [in breach of the DFR] in the negotiation of the RPA

or with respect to the ratification of that agreement,” and that

plaintiffs’ state law breach of constitution claim was “preempted

by federal law” because it was based on the same allegations,

and thus a “mere refinement” of their DFR claim. Cooper v.

TWA Airlines, LLC, 184 L.R.R.M. (BNA) 2801 (E.D.N.Y. 2008)

(citation omitted). This decision was not appealed.

In affirming the lower court’s ruling that the RLA

preempted the state law breach of Union Constitu-

tion claim against APFA, the court of appeals first

reviewed a “basic tenet[]” of federal labor law that

“uniform” federal standards (for unions, the DFR

standard), not various state laws, are to govern the

conduct of an RLA union and carrier pertaining to

the formation of a collective bargaining agreement

(“CBA”). Pet., pp. 17a-2la. It then observed that

plaintiffs’ state law claim against APFA was based on

the same allegations underlying their DFR claims.

Accordingly, the Second Circuit concluded that the

state law claim was preempted, lest it “frustrate

effective implementation of the [RLA’s] processes” for

reaching CBAs by imposing “additional state regulation

on core RLA [union collective bargaining] conduct,”

Pet., pp. 2la-22a (quoting Bhd. of R.R. Trainmen uv.

Jacksonville Terminal Co., 394 U.S. 369, 380 (1969),

and further citing id. at 381); see also Pet., pp. 16a-17a,

23a-24a, 29a (plaintiffs’ related state law claims against.

American, which on appeal were all linked to the state

law claim against APFA, were similarly preempted).

The court affirmed dismissal of plaintiffs’ RLA claims

against American that also sought to supplant the

RPA with the 2001 CBA, JA-82-83 (9 223, 233);

JA-136. After reviewing the text and structure of the

statute and applicable case law, the appellate court

“concludeld] that neither § 152, First nor § 152,

Seventh lof the RLA] provides a private cause of action

to individual employees .. . under the circumstances

presented here,” Pet., p. 16a, and that “the appropri-

ate remedy for injuries of the sort plaintiffs allege is a

claim against their union for breach of the [DFR],”

Pet., p. 9a; Pet. pp. 6a-16a—a claim which, as noted,

the court determined, and plaintiffs no longer dispute,

plaintiffs could not establish

REASONS WHY THE WRIT

SHOULD BE DENIED

I. THE RULING BELOW THAT THE ISSUES

PRESENTED IN PLAINTIFFS’ CLAIMS

ARE TO BE DETERMINED EXCLUSI-

VELY BY FEDERAL LABOR LAW IS

CONSISTENT WITH DECISIONS OF

THIS COURT AND OTHER APPELLATE

COURTS

A. Plaintiffs claim that the RPA—a CBA between

parties (APFA and American) regulated by a federal

statute (the RLA)—was unlawfully negotiated and

ratified and the pre-concessionary 2001 CBA should

be restored. See JA-136 (prayer for relief). This

assertion directly implicates APFA’s collective bar-

gaining relationship with American and its repre-

sentational conduct, both of which are at the core of

federal labor policy and governed exclusively by the

DFR. Pet., pp. 9a, 22a-24a; Vaca v. Sipes, 386 U.S.

171, 174, 177 (1967); Air Line Pilots Ass’n, Inti v.

O’Neill, 499 U.S. 65 (1991). Accordingly, plaintiffs’

attempt to vacate the RPA by challenging the Union’s

representational actions could only succeed through a

showing that APFA breached its DFR and American

was a party to that breach.” As both lower courts

found, however, there was no evidentiary or legal

basis for plaintiffs’ five DFR claims and plaintiffs do

not seek review of this conclusion.

Plaintiffs have now abandoned all their federal

claims against APFA (they did not appeal from dis-

missal of their LMRDA and RICO claims) that were

the focus of their lawsuit (nine of their ten claims

" See Humphrey v. Moore, 375 U.S. 353, 373 (1964) (Goldberg,

J. concurring).

against APFA were federal claims), and instead,

before this Court, have placed exclusive attention on

a parallel state law claim for breach of the APFA

Constitution that, as plaintiffs acknowledge, is predi-

cated on “the same nucleus of operative fact|s]” as

their dismissed DFR claims. Pet., p. 29 n.21; Pet.,

pp. 22a-23a; Pet., p. 90a (district court stating same);

see JA-84-85; JA-87-95. Because subjecting federally

regulated labor law conduct to varying “state liability”

standards would undermine the need for uniformity

that underpins the “federal [labor law] scheme,” the

Second Circuit “easily conclude{d]” that this state law

claim (and related state causes of action against

American) are preempted by federal labor law. Pet.,

pp. 22a-24a. In so holding, the Second Circuit fol-

lowed decisions of this Court that have been

consistently applied by the lower courts.

B. A key tenet of federal labor law, under both the

RLA and the National Labor Relations Act (““NLRA”),

29 U.S.C. §§ 151, et seq., is the need for uniformity in

the regulation of union and employer collective bar-

gaining conduct. See, e.g., IAM v. Central Airlines,

Inc., 372 U.S. 682, 685-86 (1963) (adding that state

regulation of areas governed by RLA would impede

RLA goal of minimizing interruption to nationwide

transportation and resolving labor disputes peace-

fully).’ As this Court emphasized in Jacksonville

‘ Accord Bensel v. Allied Pilots Ass’n, 387 F.3d 298, 320-23

(3rd Cir. 2004) (RLA); see also Pet., p. 108a (district court deci

sion; RLA governs the process of negotiation of CBAs). NLRA

cases stressing the need for uniformity include Amalgamated

Ass'n of St., Elec. Ry. & Motor Coach Employees v. Lockridge,

403 U.S. 274, 292 (1974), Wisconsin Dep't of Indus. v. Gould, Inc..

475 U.S. 282, 286-87 (1986), and Allis-Chalmers Corp. v. Lueck,

471 U.S. 202, 208-13 (1985). See Lodge 76, IAM v. Wisconsin

Employment Relation Comm'n, 427 U.S. 132, 140 & n.4 (1976)

—

Terminal, “the imposition of inconsistent state obliga-

tions” on union and employer conduct regulated by

federal labor law would disrupt the “uniform|]”

federal labor law scheme and would be “fatal to the

goals of the [RLA].” 394 U.S. at 381; Kaufman uv.

Allied Pilots Ass’n, 274 F.3d 197, 203 (5th Cir. 2001)

(cited at Pet., p. 33) (federal labor preemption serves

to preserve federal labor law “uniformity”); Cooper v.

TWA Airlines, LLC, 349 F.Supp.2d 495, 505, 507

(E.D.N.Y. 2004). For similar reasons, it is federal labor

law, not state law, that provides the standard for

determining whether a “contract [under the RLA] is

valid and enforceable according to its terms.” Central

Airlines, 372 U.S. at 691; accord Ry. Employees’ Dep’t

v. Hanson, 351 U.S. 225, 232 (1956) (“A union

agreement made pursuant to the Railway Labor Act

has... the imprimatur of federal law upon it and...

could not be made illegal nor vitiated by any provi-

sion of the laws of a State”).

The DFR fits within and forms an essential part of

this federal labor law scheme, prescribing the uniform

obligations and standards for the union’s performance

of “all” representational conduct, O'Neill, 499 U.S. at

67, 77; see also Steele v. Louisville & N. R. Co., 323

U.S. 192, 202-03 (1942), including with regard to the

negotiation and ratification of CBAs,” contra Pet., p. 32,

(cited at Pet., p. 26 n.18) (federal law governs collective bargain-

ing conduct).

® Accord Vaca, 386 U.S. at 181 (DFR applies to negotiation of

CBA); Int’l Bhd. of Elec. Workers v. Foust, 442 U.S. 42, 47 (1979)

(same); Commce’'n Workers v. Beck, 487 U.S. 735, 743 (1988) (same);

Parker v. Connors Steel Co., 855 F.2d 1510, 1519-21 (llth Cir.

1988) (DFR applies to union’s negotiation of concessionary

agreement and its conduct during CBA’s ratification); Aeri v

IAM, 781 F.2d 1393, 1397 (9th Cir. 1986) (DFR applied to union

ratification conduct); Anderson v. U/nited Paperworkers Int'l

and in applying related internal union constitutional

provisions or policies.” The DFR is “federal law . . .

grounded in federal statutes,” and is governed by

“federal standards,” Vaca, 380 U.S. at 174, 177; accord

Humphrey, 375 U.S. at 341, 343-44, that are identical

under the RLA and NLRA, O’Neill, 499 U.S. at 76:

Vaca, 386 U.S. at 182-83; Steele, 323 U.S. at 202-08.

The application of uniform federal labor law stan-

dards to union conduct is reflected in: (a) the broad

deference accorded to unions when reviewing their

representational conduci, e.g., O’Neill, 499 U.S. at 67,

and their interpretations of their constitutions, Sim,

166 F.3d at 469-70; James, 302 F.3d at 1145-46,

Union, 641 F.2d 574, 578-79 (8th Cir. 1981) (same); DeBoles v.

Trans World Airlines, Inc., 552 F.2d 1005, 1018 (3d Cir. 1977)

(RLA case that, contra Pet., p. 32, explicitly holds that the DFR

“extend{s] to union conduct in contract ratification voting”); see

James v. Int'l Bhd. of Locomotive Eng’rs, 302 F.3d 1139, 1146,

1150 (10th Cir. 2002); Sim v. New York Mailers’ Union Number

6, 166 F.3d 465, 468, 472 (2d Cir. 1999) (pertaining to re-ballot

on previously rejected CBA); Davenport v. IBT, 166 F.3d 356,

361-62 (D.C. Cir. 1999); Adcox v. Teledyne, Inc., 21 F.3d 1381,

1387-88 (6th Cir. 1994); O’Neill v. Air Line Pilots Ass'n, Int'l,

939 F.2d 1199, 1201-03 (5th Cir. 1991) (following remand);

Baker v. Newspaper and Graphic Comme’ns Union, Local 6, 628

F.2d 156, 166-67 (D.C. Cir. 1980); Ryan v. New York Newspaper

Printing Pressman’s Union No. 2, 590 F.2d 451, 456 (2d Cir.

1979). Plaintiffs’ inexplicable citation to White v. White Rose

Foods, 237 F.3d 174, 182 (2d Cir. 2001), Pet., p. 32, is not to the

contrary.

° James, 302 F.3d at 1146; Rakestraw v. United Airlines, Inc.,

981 F.2d 1524, 1533 (7th Cir. 1992); Baker, 628 F.2d at 166-67:

Leber v. Universal Music and Video Distrib., Inc., 225 F.Supp.2d

928, 948 (S.D. Ill. 2002): see Peterson v. Air Line Pilots Ass’n,

Incl, 759 F.2d 1161, 1170 (4th Cir. 1985); Bates v. Bhd. of Loco-

motive Firemen and Enginemen, 56 L.R.R.M. (BNA) 2274 (M.D.

Fla. 1964).

1150; Air Wisconsin Pilots Prot. Comm. v. Sanderson,

909 F.2d 213, 218 (7th Cir. 1990); O’Neill, 939 F.2d at

1201-03, 1205-06; Jones v. Pepsi Cola Bottling Co..,

822 F.Supp. 396, 403 (E.D. Mich. 1993), (b) the appli-

cation of a uniform six-month statute of limitations

for DFR claims, DelCostello v. IBT, 462 U.S. 151, 171-

72 (1983), and (c) the limitations on the type and

extent of damages available for DFR breaches, Foust,

442 U.S. at 47-53; Vaca, 386 U.S. at 195-98. Given

this focus on federal labor law uniformity, the appli-

cation of state law standards to union representa-

tional conduct “cannot be sustained,” Vaca, 386 U.S.

at 192-93; accord Humphrey, 375 U.S. at 341, 343-44

(DFR is “controlled by federal law,” not state law); see

also infra p. 21 n.13 (citing additional appellate and

district court decisions). Allowing individuals to

challenge a CBA’s validity only upon a showing that

their union breached its DFR in exercising its exclusive

statutory authority maintains the uniformity of

federal labor law and the RLA’s detailed collective

bargaining framework, Jacksonville Terminal, 394

U.S. at 378, and does not “superhybridize|]” or other-

wise improperly limit employees’ access to judicial

redress, contra Pet., p. 22. Infra pp. 23-24 n.16.

The determination below that plaintiffs’ state law

claims are preempted rests squarely on this Court’s

governing case law. The lower court concluded, as did

this Court in Jacksonville Terminal, that preemption

was essential because the “potentials for conflict, and

for the imposition of inconsistent state obligations,

are simply too great’ to allow each State to regulate

conduct central to Congress’ RLA goals,” Pet., p. 22a

(quoting Jacksonville Terminal, 394 U.S. at 381). Its

determination that “the imposition of additional state

liability on the defendants for conduct during collec-

tive bargaining negotiations would upset the ‘balance

of power’ established by the RLA, Golden State

Transit Corp. v. City of Los Angeles, 475 U.S. 608,

619 .. . (1986), and ‘frustrate effective implementa-

tion of the [Act’s] processes,” Pet., pp. 22a-23a

(quoting Jacksonville Terminal, 394 U.S. at 380),

again was drawn directly from this Court’s teachings.

So, too, was its conclusion that, given the core labor

law issues at stake, the standard for judging the

parties’ conduct herein “cannot be left to the laws of

the many States, for it would be fatal to the goals of

the Act’ if conduct were prohibited by state laws ‘even

though in furtherance of the federal scheme,” and

that “[t]he needs of the subject matter manifestly call

for uniformity.” Pet., p. 22a (quoting Central Airlines,

372 U.S. at 691-92). These determinations, which

provide the basis for the Second Circuit’s preemption

ruling, were faithful to this Court’s labor law guid-

ance; they struck no new ground. See also Pet.,

p. 110a (district court stating that preemption under

RLA and NLRA “is driven by the need for uniform

federal regulation of labor-management relations”).'°

'° Section 2, Eleventh of the RLA, 45 U.S.C. § 152, Eleventh,

contra Pet., p. 35, is irrelevant to the preemption at issue here.

In 1947, Congress amended the NLRA by, inter alia, adding

Section 14(b), 29 U.S.C. § 164(b), to provide that state right-to-

work laws were not preempted by the NLRA’s allowance of

union security clauses under Section 8a)(3), 29 U.S.C. §

158(a)(3). When four years later Congress added Section 2, Ele-

venth to the RLA to permit union security clauses, Beck, 487

U.S. at 746, it made clear that, in contrast to the NLRA, RLA

Section 2, Eleventh would preempt state right-to-work laws.

See Hanson, 351 U.S. at 231, 232 & n.5; Price v. UAW, 927 F.2d

88, 92 (2d Cir. 1991). Congress neither stated nor suggested

this meant RLA preemption would be limited to this narrow

context; indeed, the contemporaneous debate reflects Congres-

sional recognition that the RLA “has for a long time preempted

the field.” 81 Cong. Rec. 16371-78 (1950), reprinted in THE

C. The court below relied on this Court’s decision in

San Diego Building Trades Council v. Garmon, 359

U.S. 236 (1959), in precisely the same way that this

Court did in another RLA case, Jacksonville Terminal:

“for assistance” in “delineating” the type of union or

carrier conduct that 1s governed by the federal labor

law and therefore “protected against infringement by

the States,” in contrast to other situations where

state regulatory interest is “compelling” (e.g., union

violence) or that is of peripheral concern to federal

labor law. Jacksonville Terminal, 394 U.S. at 381-86

& n.19, 391 (quoting Garmon, 359 U.S. at 247, and

citing to other NLRA cases); accord Pet., pp. 17a-19a

(same, quoting Garmon, 359 U.S. at 241, 243, 244 &

n.3, 246, 247). As this Court emphasized, Garmon’s

focus on the need to protect uniform federal labor law

standards from state regulatory intrusion is just as

applicable under the RLA as it is under the NLRA—

notwithstanding that there is no RLA agency

counterpart to the National Labor Relations Board

(“NLRB”), Jackserville Terminal, 394 U.S. at 384 n.19;

Pet., p. 19a; contra Pet., pp. 25-27, 34-35—and there-

fore it is essential that union and carrier conduct

pertaining to the formation of a CBA be governed

exclusively by federal law, free of state regulation.

394 U.S. at 381. Accord Pet., pp. 22a-23a;"' Nellis v.

Air Line Pilots Ass’n, 805 F.Supp. 355, 360 n.5 (E.D.

Va. 1992); see Peterson, 759 F.2d at 1168-69.

RAILWAY LABOF ACT OF 1926, A LEGISLATIVE HISTORY 1222

(Michael H. Compbell & Edward C. Brewer, III, eds., William S.

Hein & Co.) (1988); accord id. at 16320-33 (statement of Sen.

Thomas), reprinted in THE RAILWAY LABOR ACT OF 1926, A

LEGISLATIVE HISTORY 1188.

" As the court below correctly noted, courts have applied the

reasoning of Jacksonville Terminal and Garmon in a variety of

RLA contexts. Pet., pp. 19a-23a; see also Pet., p. 110a.

The court below thus correctly concluded that

underlying “the principles animating Garmon, Jack-

sonville Terminal, and their progeny” is a “concern

with whether the particular state law at issue may

‘stand{] as an obstacle to the accomplishment and

execution of the full purposes and objectives of

Congress,” Pet., pp. 20a-2la (quoting Hines ov.

Davidowitz, 312 U.S. 52, 67 (1941)), and that applica-

tion of these principles required preemption of

plaintiffs’ state law claims."

D. There is no inter-circuit conflict regarding the

scope and effect of RLA and DFR preemption, contra

Pet., pp. 33-34. Plaintiffs cite no case that permits

prosecution of a state law claim that is premised on

the same allegations as a DFR claim and challenges

conduct that is governed by the DFR. To the con-

trary, the determination below that preemption is

required where, as here, the state law claim rests on

the same factual allegations as the DFR claims, Pet.,

pp. 22a-23a (Second Circuit), 90a (district court), is in

'? Contra Pet., p. 31 n.22, cases therein cited reflect that Garmon

preemption is predicated on the need to safeguard uniform

federal labor law standards and the “danger of state interfe-

rence with [this] national policy.” E.J. DuPont de Nemours &

Co. v. Sawyer, 517 F.3d 785, 792 (5th Cir. 2008); Talbot uv.

Robert Matthews Distrib. Co., 961 F.2d 654, 661 (7th Cir. 1992)

(preemption analysis considers “risk that the state will approve

conduct that the NLRA prohibits”); Serrano v. Jones & Laughlin

Steel Co., 790 F.2d 1279, 1287-88 (6th Cir. 1986) (state interest

“properly overridden by the need to enforce a uniform federal

labor law”); United Credit Bureau v. N.L.R.B., 643 F.2d 1017,

1026 (4th Cir. i981) (“paramount traditional consideration un-

derlying the labor preemption doctrine fis] the danger of

potential conflict between the state court and the Board specifi-

cally, .. . the ‘danger of interference with federally protected

conduct”) (quoting Sears, Roebuck & Co. v. Carpenters, 436 U.S.

180, 202-03 (1978)).

line with a long series of decisions, e.g., Nellis, 805

F.Supp. at 360 (preemption required where state

claim is a “mere refinement” of a DFR claim), affd,

15 F.3d 50 (4th Cir. 1994),’° and in conflict with none.

The cases plaintiffs cite to suggest “disarray” among

the circuits have nothing to do with union and

employer conduct in the formation of a CBA that is at

the heart of the present case. See JA-136 (prayer for

relief). Because this case is about CBA formation, not

Accord Cooper, 349 F.Supp.2d at 508 (claim preempted if

“based on the same conduct that would support” DFR claim);

Bensel v. Allied Pilots Ass’n, 387 F.3d at 322 (DFR is an area

“dominated by the sweep of federal statutes” and thus union

representational conduct is “governed by federal law . . . rather

than by local law”), affg in part and rev’g in part on other

grounds, 271 F.Supp.2d 616, 629 (D.N.J. 2003); May v. Shuttle,

129 F.3d 165, 179 (D.C. Cir. 1997) (state law fraud claim “same

as” DFR claim preempted); Dunn v. Air Line Pilots Ass’n, 836

F.Supp. 1574, 1580, 1584 (S.D. Fla. 1993) (claim that union dis-

regarded its internal policy was “nothing more” than assertion

of arbitrary and bad faith conduct that “clearly falls within the

[DFR]” and is “preempted” and “governed exclusively by federal

law”); Griffin v. Air Line Pilots Ass’n, Intl, No. 93-C-719, 1993

WL 348568, *7-8 (N.D. Ill. Sept. 3, 1993) (state tort claim “based

on the identical conduct underlying [DFR] claim” preempted due

to “unacceptable threat of disruption to the scheme of federal

labor relations” that could result from “conflicting standards”),

affd, 32 F.3d 1079, 1084-85 n.2 (7th Cir. 1994); Johnson v.

UFCW, Local No. 23, 828 F.2d 961, 967 (3d Cir. 1987); Peterson,

759 F.2d at 1169-71 (preempting state claims having “signifi-

cant overlap” with DFR claim); Steele v. Brewery and Soft Drink

Workers Local 1162, 432 F.Supp. 369, 375-76 (N.D. Ind. 1977)

(state claim based on same conduct as DFR claim preempted);

see BIW Deceived v. Local S6, Indus. Union of Marine and Ship-

building Workers, 132 F.3d 830, 832 (1st Cir. 1997) (negligence

claim challenging union’s “representational” conduct preempted

by DFR); James, 302 F.3d at 1150; Condon v. Local 2944 United

Steelworkers, 683 F.2d 590, 594-95 (1st Cir. 1982).

interpretation, cases applying the distinct “Norris/

Lingle” preemption doctrine, Pet., pp. 33-34, that

turn upon whether a state law claim requires inter-

pretation of a CBA (a so-called RLA “minor dispute”),

are irrelevant. See also Pet., pp. 113a-14a (district

court noting that plaintiffs “obfuscate|] the difference

between federal preemption over [formation of a CBA]

under the RLA, which is at issue here, and federal

preemption of disputes regarding the interpretation

of collectively bargained agreements, which is not at

issue”). Similarly irrelevant are decisions cited at

Pet., pp. 33-34, holding that local laws prohibiting

discriminatory employment practices or setting mini-

mum substantive labor standards are not pre-

empted;”° these areas have long been recognized as

unimpeded by the RLA. Colorado Anti-Discrimination

Comm’n v. Continental Atr Lines, Inc., 372 U.S. 714,

724 (1963) (RLA does not preclude local laws

prohibiting discriminatory hiring practices); Terminal

R. Ass’n of St. Louis v. Bhd. of R.R. Trainmen, 318

U.S. 1, 6-7 (1943) (RLA does not preempt “the field of

regulating working conditions themselves”).

E. Plaintiffs assert that the court below erred in

applying a “potential for conflict” standard rather

' See Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252-53

(1994); Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399,

413 (1988).

'’ Air Transport Ass'n v. City and County of San Francisco,

266 F.3d 1064, 1076-78 (9th Cir. 2001) (local law precluding dis

crimination in provision of employee benefits by local govern-

ment contractors). Wisconsin Cent. v. Shannon, 539 F.3d 751

(7th Cir. 2008) (Pet., p. 33), in which the court held that a state

regulation of rail employee overtime pay was preempted by the

Adamson Act of 1916, 49 U.S.C. § 28301, id. at 754-55, contra

Pet., p. 33, also does not support plaintiffs’ “circuit disarray”

argument.

than requiring an “actual conflict” to find their state

claims preempted. Pet., p. 35. Once again, however,

plaintifts fault the Second Circuit for adhering to the

decisions of this Court. See, e.g., Jacksonville Ter-

minal, 394 U.S. at 381 (preemption required because

the “potentials for conflict [were] .. . simply too great

to allow each State ... to decide for itself” what law

applies to an RLA dispute, quoted in part in Pet., p.

23a); Vaca, 386 U.S. at 178-79 (“potentially conflict-

ing” state laws “cannot be permitted to operate”

where the DFR governs); Garmon, 359 U.S. at 249-50;

see also Peterson, 759 F.2d at 1169-70; Condon, 683

F.2d at 594-95.

In any event, as the court below correctly found,

contra, Pet., p. 35, and as the Petition itself makes

clear, the conflict here between state and federal law

is not only potential but real. Pet., p. 23a. Plaintiffs

offer as a reason against preemption that the exact-

ing DFR standard, e.g., O’Neill, 499 U.S. at 76-78, is

“virtually impossible to meet,” Pet., p. 24. If true,

that only serves to demonstrate precisely why

preemption is necessary here and why the decision

below is fully consistent with established case law.

Plaintiffs are unable to succeed not because of

preemption, but because, as the courts below found,

there was no evidence to support the five DFR claims

that plaintiffs asserted against both defendants.

Pet., pp. 24a-29a, 89a-90a; see JA-87-94 (][] 241, 257,

267, 277, 291).'® To permit plaintiffs, nevertheless, to

claims can be pursued and relief ordered against both a union

and an employer for a DFR breach. See, e.g., Davenport, 166

F.3d at 361-62; United Indep. Flight Officers, Inc. v. United Air

Lines, Inc., 756 F.2d 1274, 1283 (7th Cir. 1985); Jones v. Trans

World Airlines, 495 F.2d 790, 798 (2d Cir. 1974); see generally

Vaca, 386 US. at 196-97 & n.17; Pet., p. 14a (Second Circuit

apply a less demanding state law standard and

obligations to this same evidence would be to sanc-

tion precisely what the carefully constructed DFR

preemption doctrine is intended to avoid—the elimi-

nation of “the rationality and symmetry the Supreme

Court has finally brought to the [DFR] law,” Peterson

uv. Kennedy, 771 F.2d 1244, 1259 (9th Cir. 1985); see

also Jacksonville Terminal, 394 U.S. at 378-81 (uni-

form federal labor law scheme “would become mea-

ningless” if state law could apply and present poten-

tial conflict); Lockridge, 403 U.S. at 285-86 (federal

labor law preemption is needed “to avoid conflicting

regulation” of unions and employers); supra pp. 14-

18.

ok * *

In sum, there is no divergence between the decision

below and the labor law preemption decisions of this

Court or other circuits that warrants Supreme Court

review.

Il. THE DETERMINATION BELOW THAT

PLAINTIFFS HEREIN HAVE NO PRI-

VATE RIGHT OF ACTION UNDER

SECTION 2, FIRST AND 2, SEVENTH OF

THE RLA CREATES NO CONFLICT

WARRANTING REVIEW

There also is no conflict among the circuits or other

extraordinary reason to review the dismissal of plain-

tiffs’ claims under RLA Section 2, First and Seventh,

45 U.S.C. § 152, First and Seventh.

A. Section 2, First addresses the obligation of carri-

ers and unions to make every reasonable effort to

rejecting argument that DFR preemption left plaintiffs without

a remedy).

make and maintain agreements. Section 2, Seventh

prohibits unilateral changes by carriers in terms and

conditions embodied in CBAs prior to exhaustion of

the RLA’s bargaining procedures. Fundamental

principles of federal labor law and the text and struc-

ture of the RLA, as the Second Circuit correctly

concluded, preclude an individual employee right of

action under Section 2, First or Seventh where, as

here, the employees are represented by a union and

the claims are directed at the collective bargaining

conduct of the union and the employer. Pet., pp. 9a-16a.

Under the RLA (as under the NLRA), once em-

ployees are represented by a union, their individual

interests necessarily are “subordinate[d]” to the “col-

lective interests of all employees in [the] bargaining

unit,” Vaca, 386 U.S. at 182, and it is the union,

alone, and not individual employees, that can negotiate

and conclude CBAs. Steele, 323 U.S. at 202 (under

RLA); Order of #.R. Telegraphers v. Ry. Express

Agency, 321 U.S. 342, 347 (1944) (under RLA); J.J.

Case Co. v. N.L.R.B., 321 U.S. 332, 339 (1944) (under

NLRA); Pet. pp. lla-12a (citing Steele).'’ Here, APFA

exercised this authority by negotiating, through the

RPA, changes to the existing 2001 CBA.

The purpose of the RLA status quo requirements is

to encourage peaceable settlement of labor contro-

versies and prohibit unilateral conduct that could

'? Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711 (1945), con-

cerned, unlike here, a so-called RLA “minor dispute” (pertaining

to a dispute over the meaning of CBA provisions). It lends no

support to plaintiffs, contra Pet., pp. 16-17. To the contrary its

statement that the RLA “vests exclusive authority to negotiate

and to conclude agreements ... in the duly selected [union],”

325 U.S. at 722-24, 728 (emphasis added), is fully consistent

with the decision below.

disrupt interstate travel (e.g., a strike or a carricr’s

unilateral alteration of terms and conditions of em-

ployment that could provoke a strike) prior to

exhaustion of the RLA’s statutory bargaining pro-

cesses. Detroit and Toledo Shore Line R.R. Co. v.

United Transp. Union, 396 U.S. 142, 148-53 (1969);

Jacksonville Terminal, 394 U.S. at 378; 45 U.S.C.

§ 152, First (status quo obligation imposed “in order

to avoid any interruption to commerce or to the

operation of any carrier”); see Virginian Ry. Co. v.

Sys. Fed’n, No. 40, 300 U.S. 515, 548 (1937) (RLA

“aimed at securing settlement of labor disputes”);

Texas & N. O. R. Co. v. Bhd. of Ry. & S.S. Clerks, 281

U.S. 548, 565 (1930) (RLA intended to protect

interstate commerce from disruptions caused by labor

disputes). The entry of APFA and American into the

RPA furthered these objectives. Because American

did not unilaterally alter the existing contractual

terms, there was no status quo violation. The fact

that these negotiated changes of the RPA were

accomplished during the term of an existing CBA is

of no import; the RLA “explicitly allows the parties to

alter the status quo by agreement.” Air Line Pilots

Ass'n, Intl v. Pan Am World Airways, Inc., 765 F.2d

377, 381 (2d Cir. 1985) (emphasis in original); accord

Hendricks v. Air Line Pilots Ass'n, Int'l, 696 F.2d 673,

677 (9th Cir. 1983) (quoting Watson v. IBT, 399 F.2d

875, 879 (5th Cir. 1968)); American Bar Ass’n, THE

RAILWAY LABOR AcT 323 (Michuel E. Abram, et al.,

eds., 2d ed. 2005).

If, as was not the case, American had unilaterally

altered the terms and conditions of employment, it

would be APFA, the other party to the bargaining

relationship, that would be authorized to sue to

enforce American’s RLA status quo obligations. See

Chicago and N.W. Ry. Co. v. United Transp, Union,

402 U.S. 570, 575-79 (1971) (Congress intended

Section 2, First to be “enforceable” by carriers and

unions); see also cases referenced infra pp. 28-29 n.22

(citing cases where a union or carrier sued to enforce

status quo obligations). This follows from the Union’s

status as exclusive bargaining representative, not,

contra Pet., pp. 15-18, 20-22, because of the “associa-

tional standing” doctrine.’”

As the Second Circuit correctly observed, permit-

ting disgruntled employees to invoke the RLA status

quo provisions to challenge the product of collective

bargaining—here, a CBA reached by APFA and

American, and ratified by the employees—“would risk

the very disruption in commerce that the RLA seeks

to avoid,” Pet., p. 14a, and be “[inJconsistent with the

underlying purposes of the [RLA’s] legislative scheme”:

to promote labor peace, Cort v. Ash, 422 U.S. 66, 78

(1975); Pet., pp. 12a-l4a; accord Bensel, 387 F.3d at

319 (allowing individual employees to challenge CBAs

“would undermine the [RLA’s purpose] of providing

for an organized process of negotiation between one

employee representative and the employer, and could

lead to chaos”).’*

'® Plaintiffs assert some impropriety in having the potential

claims of retirees within their purported class left to APFA to

pursue, Pet., pp. 20-22, but that has no applicability here. The

RPA made no changes to the flight attendants’ retirement plan

and did not affect any allegedly accrued retiree entitlements.

JA-435; JA-1335-36; JA-3526; JA-3625-26; see Pet., p. 46a; JA-

3680. Furloughed flight attendants are covered by the CBA and

thus represented by APFA; contra Pet., p. 20, they are not “for-

mer employees.”

'’ Contra, Pet., p. 19, the Second Circuit concluded that plain-

liffs lack standing to pursue their RLA claims against American

based on the wording, structure and purposes of the RLA, Pet.,

pp. 9a-10a, 16a, not on any notion that a union “inherently lim-

B. Contrary to Pet., pp. 12-13, no court decision,

including those cited by plaintiffs, conflicts with the

standing determination of the Second Circuit. See

Bensel, 387 F.3d at 317-19 and n.4 (finding no cases

supporting an implied right in individual employees

to pursue claims under Sections 2, First, Second and

Ninth of the RLA). The decisions cited by plaintiffs

are addressed to entirely distinct and readily dis-

tinguishable matters: (1) claims under RLA Section

2, Third and Fourth, 45 U.S.C. § 152, Third and

Fourth,”’ which (unlike Section 2, First and Seventh)

are intended to safeguard individual employees’

rights to join and support a union, see Pet., pp. 10a-lla

(Second Circuit distinguishing Section 2, First from

Section 2, Third and Fourth “for which |[individual

employee] private rights of action have been recog-

nized”); Bensel, 387 F.3d at 318 (same); (2) RLA

minor disputes,”’ which, as noted, supra pp. 21-22,

are unrelated to the issues here; (3) claims brought

by the union or carrier, not by individual employees;”

its .. . its members’ right to sue,” Pet., p. 19. APFA placed no

limitations on plaintiffs’ right to sue and Section 101(a)(4) of the

LMRDA (which prohibits labor organizations from “limit{ing]

the right of any member thereof to institute” a lawsuit, 29

U.S.C. § 411(a)(4)) has no applicability here.

(7th Cir, 1996); Stepanischen v. Merchants Despatch Transp. Corp.,

722 F.2d 922 (1st Cir. 1983); Burke v. Compania Mexicana De

Aviacion, S.A., 433 F.2d 1031 (9th Cir. 1970); see also Texas &

N. O. R., 281 U.S. 548 (RLA § 152, Third judicially enforceable

by union).

*! Pet., pp. 13-14 and n.7: Kushto v. Bhd. of Ry. Airline &

S.S. Clerks, 818 F.2d 290 (4th Cir. 1987); Kaschak v. Consol.

Rail Corp., 707 F.2d 902, 908, 910 (6th Cir. 1983); Hilbert v.

Pennsylvania R.R. Co., 290 F.2d 881, 885 (7th Cir. 1961).

* Pet., pp. 12-14 and n.6: Consol. Rail Corp. v. Ry. Labor

Executives’ Ass’n, 491 U.S. 299 (1989) (suit by union); Chicago &

or (4) claims which, unlike those presented here,

challenge conduct of unions that were not the

plaintiffs’ exclusive representative and thus which

did not implicate the DFR.” The Second Circuit’s

N.W. Ry. Co., 402 U.S. 570 (employer suit against union to

enjoin strike); Detroit & Toledo Shore Line R.R. Co., 396 U.S.

142 (same; union counterclaimed); Order of R.R. Telegraphers v.

Chicago. & N. W. Ry. Co., 362 U.S. 330 (1960) (employer suit

against union to enjoin strike); Order of Ry. Conductors uv.

Pitney, 326 U.S. 561 (1946) (suit by union that required CBA

interpretation; referred to Adjustment Board); Order of R.R.

Telegraphers v. Ry. Express Agency, 321 U.S. 342 (1944) (suit by

union); Virginian Ry. Co., 300 U.S. 515 (suit by union under

Section 2, Ninth); JAM v. Transportes Aereos Mercantiles Pan

Americanados, S.A., 924 F.2d 1005 (11th Cir. 1991) (suit by

union); l/nited Transport. Union, Local 63E v. Penn Cent. Co.,

443 F.2d 131 (6th Cir. 1971) (same); Southern Ry. Co. v. Bhd. of

Locomotive Firemen & Enginemen, 384 F.2d 323 (D.C. Cir.

1967) (same); United Indus. Workers v. Bd. of Trs. of Galveston

Wharves, 351 F.2d 183 (5th Cir. 1965) (same); Railroad Yard-

masters v. Pennsylvania R.R. Co., 224 F.2d 226, 227 (3d Cir.

1955) (same); see Regional Airline Pilots Ass’n, Inc. v. Wings

West Airlines, Inc., 915 F.2d 1399 (9th Cir. 1990) (same; also

including Section 2, Third and Fourth claims that individuals

may appropriately assert, supra p. 28); Carbone v. Meserve, 645

F.2d 96, 98, 100 (1st Cir. 1981) (suit by union; dispute concern-

ing an alleged CBA breach, as in the cases noted supra n.21,

and not “relate[d] to the formation or modification of the [CBA]”).

In Mungin v. Florida East Coast Ry. Co., 416 F.2d 1169 (5th Cir.

1969) (Pet., p. 14), employees challenged the carrier’s refusal to

reinstate them pursuant to a status quo injunction obtained by

the government after their union, acting without authority and

in breach of “its duty of faithful representation” (unlike the sit-

uation here), agreed that the carrier need not reinstate them.

Id. at 1172-74, 1178.

*3 Pet., p. 14: Bhd. of R.R. Trainmen v. Smith, 251 F.2d 282

(6th Cir. 1958) (union that was not the employees’ representa-

tive sought employee’s discharge through enforcement of its

union shop agreement); Dwellingham v. Thompson, 91 F.Supp.

787 (E.D. Mo. 1950) (dispute resolution between carrier and

conclusion that plaintiffs cannot challenge the

product of collective bargaining negotiations by

directly suing their employer where, as here, their

bargaining representative fulfilled its DFR in

entering the challenged CBA is consistent with all

other authorities and the wording and structure of

the RLA and there is no reason to review it.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

STEPHEN B. MOLDOF

Counsel of Record

MICHAEL L. WINSTON

TRAVIS M. MASTRODDI

COHEN, WEISS AND SIMON LLP

330 West 42nd Street

New York, New York 10036

(212) 563-4100

smoldof@ewsny.com

Counsel for Respondents

Association of Professional

Flight Attendants and John

Ward, as President of APFA

May 28, 2010

union that was not the emplovees’ bargaining representative

resulted in displacement of the employees), affd sub nom.,

Rolfes v. Dwellingham, 198 F.2d 591 (8th Cir. 1952).

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