Petition for Writ of Certiorari — Lindsay v. Association of Professional Flight Attendants

Supreme Court brief2010

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

FILED

No. 091310 FcB 18 2010

iw ORFICE OF THE CLERK

Supreme Court of the United States

JILL LINDSAY, ET AL, PETITIONERS

ASSOCIATION OF PROFESSIONAL FLIGHT ATTENDANTS,

A BUSINESS ENTITY OF UNKNOWN TYPE, ET AL

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Also on the brief: EMILY M. BASS

Counsel of Record

LINDA A. BACKIEL

STEVEN M. NACHMAN

MICHAELS. HABER

551 Fifth Avenue

28th Floor

New York, N.Y. 10176

(646) 810-3117

bassesq@aol.com

CURRY & TAYLOR @ 202-393-4141

QUESTIONS PRESENTED

l. Do employees and/or former employees have the

right to sue for violations of Sections 152, First and/or

152, Seventh of the Railway Labor Act (“"RLA" or “the

Act”), or is that right reserved exclusively to their union?

Z. In interpreting those sections, can Cort v. Ash, 422

U.S. 66 (1975), be relied upon to imply a cause of action in

favor of a union, but not its members, when it is only the

members, not the union, that have suffered the injuries to

be redressed?

3. Can the NLRA's Garmon doctrine be applied in

the railway labor context so as to preempt claims seeking

to vindicate balloting and ratification rights under a

Union Constitution, where the claims are neither

expressly preempted by the Railway Labor Act nor in

actual conflict with it, and there is no administrative body

to which the parties’ controversies could have been

submitted?

4. Can state-law claims alleging interference with and

violation of ratification and balloting rights under a Union

Constitution be treated as "identical" to DFR claims and,

therefore, subsumed by DFR law”?

PARTIES TO THE PROCEEDING

JILL LINDSAY, CAROL JOHNSON, DANIEL

SANTIAGO, DEBORAH WHITTINGTON, DOTTIE

LONG, JANET GOLD, JUDITH ALEXANDER,

KAREN RIVOIRA, LAURENCE E. SALOMON ITI,

PATRICIA KENNEDY, PATTY GENTRY and

REBECCA SMITH were Plaintiff-Appellants below and

are Petitioners here.

Plaintiff-Appellant CONSTANCE LaMATTINA is being

listed as a Respondent in accordance with Supreme Court

Rule 12.6.

The ASSOCIATION OF PROFESSIONAL FLIGHT

ATTENDANTS, AMR CORPORATION, AMERICAN

AIRLINES, INC., and JOHN WARD were Defendant-

Appellees below and are Respondents here.

Lil

TABLE OF CONTENTS

Page

COUPE LOPE ee Fa Oe de iiss renee |

PARTIES TO THE PROCEEDING ........... eeialek Acasa uneiteas il

TABLE OF AUTHORITIBS.......... és ad eee ll

OP LN ICING BELOW ciscssscerevesisriricns Laiechanaecee eae hes 1

FF RG ees EON wi kcndadcavntcchues cxsdtadeavalea cteae aaa

A. The Events Leading To Suit ...... ec esecereeeeeeee es 3

B. Petitioners’ Claims and Injuries................sssccccccceccesseess 5

C. Proceedings In the District Court, ...................csccceecceees 6

D. Proceedings In The Court of Appeals oc eee 7

Bes. “FRR Cr a aiccdssae wseccancasveevadneraentencchiedonns 8

REASONS FOR GRANTING THE PE'TITION.............. 8

lL THE COURT SHOULD GRANT

CERTIORARI TO DETERMINE

WHETHER EMPLOYEES AND FORMER

EMPLOYEES HAVE THE RIGHT TO SUE

FOR VIOLATIONS OF THE “STATUS QUO'

POY Bee BP Pei Mi cccancecrvicscnvitniarsracasronpnns ||

A. The Circuits Are Divided On The Issue Of

Whether Current Employees Have A Private

PSE OE FOCI ve ciicccscisnicceal Sarcudeen eaten

Lb.

IT.

When The Issue Of Standing Is Viewed From

The Opposite Perspective And The Question

Is Whether Unions Alone Have The Right To

Sue, The Second Circuit’s Decision Also

Conflicts With Controlling Decisions Of This

Court, Both In The Labor And Article II]

PIII Sie ccciscacai sans taacvasanscksstenecnsnvescatcscasvies neeus 15

1. The Seeond Cireuit’s Decision

SINE Bi Os si seen tvcandcessecasoecaaxenerecacanconnecenss 17

2. The Second Circuit’s Decision

Contravenes Warth, Hunt And Brown

PPI cca scencasractarerevcesciausspasiencanrumareruamecsndedinsereoet 18

3. The Second Circuit’s Interpretation Of

The RLA Brings It Into Direct Conflict

With The Plain Language Of 29 U.S.C. §

BN a cea secs teacededcccrslipieuentuateaipetadad caleaaaiuiannicadah 19

The Circuits Are Divided On The Issue Of

Whether A Union Can Represent Former

NIE co siicdecscisciceccntacissidp wis vac Hd bleeds datacnameil 2()

Reasons The Issue of Standing Is Lmportant:

Because The Court of Appeals Improperly

“Hybridized” — Indeed “Over-Hybridized” -

The Law And Permitted Majority Rule To

PUXUIFIBUISN V OSLO FLIGIES. .0.....00.0ccnscsrecsccuvecsssacseasenserss 22

THE COURT SHOULD GRANT

CERTIORARI TO RE-ESTABLISH ORDER

IN THE AREA OF RLA PREEMPTION

AND CLARIFY THE RELATIONSHIP

BETWEEN DFR LAW AND CLAIMS THAT

RIGHTS UNDER A UNION

CONSTITUTION HAVE BEEN VIOLATED.......... 25

»»

A. ‘The Ruling Below Contravenes Sears

ae ESS Ae NC SOD Ie ip A Le Rem eR 27

6. The Ruling Below Contravenes This Court's

Decisions In Davis, Belknap And An

Unbroken Line of Precedents .............0....ccccccessesesseeees 5]

C. On The Issue of RLA Preemption, The

Circuits Are Not Simply Divided, They Are

EOE TREC DOIN ITI iicscccicsncscvccscrsossnessvsseissavecssens OO

D. This Court’s Intervention Is Necessary To

Restore Order On This Issue. The

Consequences Of Permitting This Circuit

Spht To Persist Are Dramatic And Dangerous ........ 34

Rie RIE nocd, ios co oes adcbah ccauiesncancuvaimesssvudsauicernteddenaarene 36

APPENDIX

Circuit Court Decision ...............<.....00.. ‘claus Seesseatonsaeelelmeine la

strict Court Opinion & Order .......:.ccc0c.ccscccscorceccecesessonse se 34a

District Court Opinion & Order (38/28/06)............ccccceeeeeeeeee 100a

Berney © NIG Ce CIE) soiscissctncccccivereaseosccdecscssasscensraeas l3la

PRRTAIOONY PYOVINIOMG TNVORVEOG 6.occcscsccccconsssscicascsssccscesenonscses l4la

CASES

Adam S Vv. eae

Cir. 2001).........

Air 1'ra MSP. VU.

266 F.3d 1064 (

an)

TABLE OF AUTHORITIES

cutive Aurliies, fic., 258 F.8d 7 1"

City & County of San Francisco,

NE DUN ME aii ccec iene dadeptasiontntestovieransecnssreesionss 34

Allied Chem. & Alkali Workers, Local U/ni0n No. iv

Pittsburgh Pla

Alhis-Chalmer:

Associated Ge?

U.S. 519 (1988)

Bangor & Aro

(D.C. Cir. 1971

te Glass Co., 404 U.S. 157 (1971)... 20

g Corp. y, Lueck, 471 U.S. 202 (1985)..............32

veral Contractors v. Carpenters, 459

»stoor ke [2.4 '0. U. B.LI.£.. 4 12 I" 2d S12

Be Bs AM ALS, CEN NODE Pet TINIE CED REP TEA RE PLEO aE OE ED 20)

Beticnan Vv. Fate, 463 US. 491 (19BS)...nccesccccsesvoscssccvesrsveers 21,31]

Bensel v. Allied Pilots Ass’n, 387 F.8d 298 (Sd Cir.

P04). cert. den

bloemer v), Vo

Cir. 2005)....

a) y

HOoWwWe? Vv. [ rLiLe

4. aaa

'd. 544 U.S. LOLS (2005) 14, 15, 25, 33

d States Parcel Service, 459 U.S. 212

Breininger v. Sheet Metal Workers [nt'l Ass'n, 493

U.S. 67 (1989)

Brown v. Hotel hmployees, 468 U.S. 491 (1984) 32

Bro 192, 2). [llanois ( i ntral, 254 hy 8] 6! HA 7th ( Ir

COTE. GO GE, DOE US. BOG] COT) iccccsssessscesccssverssecesciscesscene sexascee ae

brotherhood of Railroad Trainmen v. Jacksonvull

Terminal Co., 394 U.S. G69 CLOGB)......ccccccsocccsssccceescesses 205 GOy Ot

Brotherhood of learilroad Travimen v. Smith, 251

I’.2d 282 (6'" Cir.), cert. den'd, 356 U.S. 937 (1958

Burke v. Compania Mewxicunu de Aviacion, S.A..,

SS Oe BEL OT: al ae 7) |) a er Err eT |

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

CCG, Gee, GO UF re. Fee CL hoa vnkcindcckcesuxiccanesdcodsncsscasceossscsnses 14

Chicago & N.W.R. Co. v. United Transportation

BE RO eG oS ) ee nen, | Sey y

Cleveland Electric v U/talaty Workers Union Local

OF Er ree re rts ES oc voc cas va ckcncsiensdnveaticdsananeicacucons 21

Communications Work rs v. Be ck, 187 U.S. 735

BR) DEER RR Re MADRE NEI NS SEA AER exiRH Se CURT MR DAD EN LONE AEE 23. bz

Consolidated Rail Corp. Uv. Railway Labor

Emecutives Aan, 491 U.S. ZO0 (LOGO) ....::ccsssrosrvsanecrssseeses me

Cort v. Ash, 422 U.S. 66 (1975)............. eae er EN RP U.. SNOE 19

Davis Supermarkets uv. NLRB, 2 P.3d 1162 (D.C. Cir.

1993), cert. dea'd, 511 U.S. 1008 (1994) . eres es

De Bol Ss Travs Wor fal Aw bin Cs, lic. ty Va F.2d

)

1005 (3d ¢ ti 1977), cert. den’d, 434 U.S. 837 (1977) ............... 32

DetCostetilo ¥. 1.6.7 ., 462 U.S. LOT (19S) .ccccsersssessesocseses Sty

Detroit & Toledo Shore Tane R. Coe. v. U.TLU., 396

LIS. 142 (1969)..... ees : sp hace dauecalnanede nets tawoess aCe

Dwellingham v. Thompson, 91 F.Supp. 787 (ke.D.Mo

1950), aff'd sub nom, Rolfes v. Dwellingham, 198 F.2d

See Gee Sar. BOOED acsacdiaisossscshatsacisentanee sbbaneevesatenee assed 14

lid. Dupont de Nemours & Co. v. Sawyer, 517 F.3d

Fee ET Gal BOD ocicsetinisesecctenstcncbicn una ace eee 31

Klgin v. Burley, 325 U.S. 711 (1945), adhered to on

VOT, Bet US a GSr CI ctcssecs cscs eracncerde passim

Firtle v. Continental Airlines, Inc., 136 F.3d 690 (10"

Oa ee ee pebecnbinkat hnotteekive tui ae o4

Espinal v. Northwest Airlines, 90 F.3d 1452 (9 Cir.

1996) 34

CEO ERE OOH MEER HE TEETH EEE EEE THEE EEE HEHEHE HEHEHE RHEE EHR EEE HEHEHE HEHE EEE mE E®

Hwelon Generation v. Local 15,540 F.3d 640 (7 Cir.

2008)

Fairbairn v. United Air Lines, 250 F.8d 237 (4th Cir.

MEET) xccvnsesceasaucensecmuerdseve ue ee SA yy een aE 34

(rolden Gate Trans (Corp. ». City of Los Angeles, 493

Henegar v. Banta, 27 F.3d 223 (6" Cir.), cert. den '‘d,

Sie 4s, FORT 1 se occ svnnk-duosbasnivoe tana macaneecmael Od

Hilbert v. Pennsylvania Fe. fP., 290 F.2d 881 (7th Cir.),

cert. dew'd, BGS US. Gab Ca hives 14

Hines v. Anchor Motor Freight, 24 U.S. 554 (1976)... a4

Hhirras v. Nat l RR. Pa SCM) ( ‘orp » 4 | I: Ud 218 | ‘a

hs A 5 oo SO 4

Hunt v. Washington State Apple Adver. Comm'n,

432 U.S. 333 (197'0)........-. 08 | ot eee iA passim

LA.M. v. Goodrich, 410 F.3d 204 (5™ Cir.), cert. der'd,

ES nae ae aie

1.A.M. v. Transportes Aereos Mercanittiles, 924 F.2d

1005 (11 Cir.), cert. den'd, 602 U.S. 855 (1991) ...... SSE, |

LB.EB.W. v. Citizens T'elecom. Co. of Calzafornia, 549

ye eS 6 OL: Ee Ee, ae

IE EEE TON RE TO )

L.BE.W. v. GEN Aerospace, 431 F.3d 624 (8 Cir

SS ee Asn See 2 1

International Association of Machinists v. Wisconsin

Lmployment Relations Board, 427 U.S. 182 (1976) vee 26

International Longshoremen's Ass'n v, Davis, 476

ese earlidsssacatessvoscsiscvecsseseesssssssensnees $1, 32

Kaschak v. Consolidated Rail Corp., T07 F.2d 902 (6"

Jer eerer eer et awmawoarerereseweee

Kaufman v. Allied Pilots Ass'n, 274 F.8d 197 (ath

Cir. 2001). cert. den'd. 535 U.S. 1084 (2002) 34

Kushto v. Bhd. of Rway Airline & Steamship Clerks,

818 F.2d 290 (4th Cir. 1987)... r eres 13

Lebow v. American Trans Air, Inc., 86 F.3d 661 (7°

Cir. 1996) |?

/ } fl Ni ¢ (i DD ()% Of M {(/ ( / ( [XG |

S90 (1US8S) .. seats a, ol

Loe Me) GrouD Harhe richter. 65 bod | ya n ( l!

1995 ) ia kw aes ' reer Pere >

Marquez v. Schreen Actor's Guild, 525 U.S. 33 (1998) 52

VUcCormick uv. Airerant Mech. Fraternal A:

340 Fd 642 (8 Cir. 2008) 54

Mungin v. Florida Kast Coast Rwy Co., 318 F.Sup

720 (M.D. Fla. 1970), aff'd, 441 F.2d 728 (5"" Cir.), cert

der'd, 404 U.S. 897 (1971) oo... cece ecco veces: 14

Miuvrgv ). Beli rida Ka t Coast Ru 1 Co., 116 F.2d

1169 (5'" Cir. 1969) L4

—

er.

—,

grape a J cago a \ V\ [ty

(’o., 362 US. 330 (1960) Pe

Order of Rwy Conducto f America v. Prtney, 32I

de O/ Peay Tt leq uphie } Ra oy Lf hy jj

\gency, 321 U.S. 342 (1944) le, ]

Puce Industri VLAB, 118 F.8d 585 (8" Cir. 1997)

rt. den'd, 528 U.S. 1020 (1998

Ratlroad Yardinaste

224 F.2d 226 (8d Ch

ae gional Air re Pilo

F.2d 1399 (9 Cir, 1990).

(1991).

frepst Hf Bur }) 140

(10th Cir. 1998)

(yy j

/ jf hey We) } By }) fy} I { )

‘) |

j (22 | 2a Y2Z | Ll) Ls.

) ; 1) 4 ] r ‘ | {

ae yf Robert Ma Cu NSstr1y), (CLO ity qd ODb4

oY €®

Tamburello v. Comm-Tract Corp., 6€ | 3d 073

) ed Credit Bureau. of lynerica VLRB, 643 F

1017 (4 Cir. 1981), cert. den'd, 454 U.S. 994 (1981)

l’y ted Ind / Wi yh / Galve Lon Whar . Ko |

F.2d 183 (5th Cir. 1965), 0? appeal following rena

368 F.2d 412 (1966), on appeal following second

emand. 1O0 9d BPO (1 > CETL lenied, 395 I “es

YO5 (1969)

United Steelworkers v. Cooner Tire, 474 F.3d 271 (6th

Cir. 2007)....

UJouite ai Transport. [ ILLOTL, Z. O5¢ U. Pe Lil Certl., 143

F.2d 131 (6th Cir.) cert. den’d, 404 U.S. 9388 (1971) lzZ

EFS ©. BECO, Bk TE a. FE CI) es oessessinctsesssaversorsnesensscasaves Gone

PCE Oh. re Te Se 20 EEO over ces ressevnnsnsarsvnssvvsavsvveens deg ae

Virginian R.Co. v. System Fede ration, Va. 40. 300

U.S. 515 (1987) 12

Warth v. Seldin, 422 U.S. 490 (1975) Re:

White v. White Rose Foods, 237 F.3d 174 (2d Cir.

MII ii-sns:dd psucs Ges vaeceancuans padeuimessieecassaadaarebnmanbiaeoedeime eciuevewelskcuans aa

Vi SCOMRSI? CL ¢ t Ltd Shanior D359 i sd (51 if

Cur. 2008) +:

8 U.S.C. § 1254

28 U S.C. 8 1331] 1, 6

28 U.S.C. § 2201 2.5

29 U.S.C. § 185 6H. 10, 14, 16

29 U.S.C. § 401 SON

2 Seventh

Zz |- leve) t }

]

PETITION FOR A WRIT OF CERTIORARI

Petitioners, Jill Lindsay, Carol Johnson, Daniel

Santiago, Deborah Whittington, Dottie Long, Janet

Gold, Judith Alexander, Karen Rivoira, Laurence E.

Salomon, Patricia Kennedy, Patty Gentry and Rebecea

Smith, respectfully petition for a writ of certiorari to

review a judgment of the United States Court of

Appeals for the Second Circuit.

OPINIONS BELOW

The Second Circuit opinion, Lindsay v.

Association of Professional Flight Attendants (Pet.

App. 1-33), appears at 581 F.8d 47 (2d Cir. 2009). The

opinion of the United States District Court for the

Eastern District of New York on standing and DFR

issues (Pet. App. 34-98) is reported at 645 F.Supp.2d 68

(E.D.N.Y. 2008). Its earlier Opinion on ordinary

preemption (Pet. App. 99-1380) is unreported.

JURISDICTION

The Second Circuit entered its opinion and

Judgment on September 21, 2009. Justice Ginsburg

granted an extension of time to file the petition until

February 18, 2009. The District Court had jurisdiction

pursuant to 28 U.S.C. $1331 and 1367(a). This Court’s

jurisdiction is invoked under 28 U.S.C. § 1254.

RELEVANT PROVISIONS INVOLVED

The Appendix (Pet. App.141-144) reproduces

relevant provisions of the Railway Labor Act, 45 U.S.C.

$151 et seqg., the Judiciary and Judicial Procedure Act,

28 U.S.C. §§ 2201 and 2202, and the Labor Management

teporting and Disclosure Act, 29 U.S.C. §§ 401 et seq.

Two provisions are reproduced here.

§152, First of the RLA 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 hetween the carrier

and the employees thereof.

$152, Seventh of the RLA provides:

No carrier, its officers, or agents shall change

the rates of pay, rules, or working conditions of

its employees, as a class, as embodied in

agreements except in the manner prescribed in

such agreements or in section 156 of this title.

STATEMENT

The courts below interpreted the RLA so as to

transform the field of railway labor law into one in

which unionized employees (and former employees)

have only one potential right of action: a DFR claim

against their union. (Pet. App. 9, 14). Under the

rulings below, the union automatically holds and

controls all other statutory claims and it is for the union

alone to decide whether to assert them. By choosing

not to assert claims, the union can waive its members’

vested rights.

The courts below also’ transformed the

relationship between state and federal law so as to

radically alter traditional preemption analysis. The

second Circuit eliminated the third tier of the

traditional inquiry altogether, declaring that in this

field “actual conflict is not a prerequisite” (Pet. App.

23), applied a preemption rule in the railway labor

context that implemented Congressional intent under a

significantly different statute (the NLRA), and

interpreted the RLA as fully occupying a field

Congress clearly chose not to occupy.

This Court’s intervention is necessary to

definitively resolve the preemption and standing issues

raised by the RLA, the relevance of doctrines

developed under the NLRA, and the interrelationship

between state-law and federal common law that affect

millions of railway labor employees and currently

divide the Circuits. Its intervention is also required to

ensure adherence to its standing and preemption

jurisprudence.

A, The Events Leading To Suit

In 2001, American Airlines (hereinafter “the

Carrier,” “Employer” or “Airline”) and its flight

attendants concluded negotiations under Section 6 of

the Railway Labor Act. They made their collective

bargaining agreement ("CBA") amendable, at the

earliest, November 380, 2004. (Ct. Appeals Jt. Appdx

(“JA”) 2411, 95-7). With its ratification, the right to

wage and benefit levels vested through that date.

Although the CBA was supposed to remain in

force at least until November 30, 2004, in early 2003,

the Carrier suddenly demanded permanent and non-

negotiable givebacks of $340 million/year- effective May

1, 2005.

After conducting a ratification vote that was

unprecedented in the history of the American

Arbitration Association!- and that the Union formally

set aside as “tainted”— the Union agreed to the Airline’s

terms. (JA 1245-46; 1469-72). Neither the Carrier nor

the Union contend that this second CBA (referred to as

the “Restructuring Participation Agreement” or

"RPA") was the result of Section 6 procedures. At no

time did the Carrier apply to or receive the approval of

a bankruptcy court to abrogate the original agreement.

After the ratification vote, three things became

clear: (1) the level of concessions the Company

demanded were determined by long-term competitive

‘The Administrator in charge of elections at the American

Arbitration Association testified that, to the best of his knowledge,

it was the only time in AAA's history that it had ever been asked

to: extend a ratification vote beyond its original deadline, permit

balloting to continue after results were announced, and change

voting rules midstream. (JA 1245-6). AAA told the Union, "we

have never done [this] before," (JA 1246) and required APFA to

instruct it in writing. At the Airlines' urging, APFA not only

directed AAA to re-open the vote and accept new ballots, but also

to permit already-cast ballots to be changed. (JA 1482-88, 2426-27,

JA 1607-09). It did so notwithstanding the fact that, under its

Constitution, ballots received after the deadline specified for the

vote were to be treated as "void" (JA 1467; Art.VI.5.E,

Art. X1.1.E.2, Art. [X.6.A.4 ), and that it knew that a mid-term rules

change could compromise the vote's integrity. (JA 152; JA147-8;

JA2424-25 4989-91; JA 609-610).

considerations, and not—as had been represented- by

the need to meet short-term contingencies; (11) the

Company intended those concessions to be permanent,

regardless of its financial condition (JA 2412, 2414,

2422, 3632-33, 3648-49, 5689, 1354); and (il) while it was

comparing its costs to its low-cost competitors and

determining how much to demand back from its

employees, the Company had conferred significant new

benefits on high-ranking management, (JA 2412 411;

3641-42) including bonuses and a special bankruptcy-

protected retirement plan for senior officers funded

from the Company’s cash balance. (Id.) Additional facts

necessary for an understanding of Point IT are

presented there at note 21.

Petitioners are a group of American Airlines

current and former flight attendants and current and

former members of the Association of Professional

Flight Attendants (“APF A” or “the Union’) who sued

both as individuals and on behalf of some 20,000

similarly situated past and present flight attendants.

(JA 76). At least 2,000 members of the putative class

are no longer bargaining unit members. (E.g., JA 5197

4[53).

B. Petitioners’ Claims and Injuries

Three sets of claims are relevant: (1) claims

against the Carrier under the RLA and Declaratory

Judgment Act for having violated RLA Sections 152,

First and Seventh (the "status quo" or statutory

claims);? (2) state-law claims against the Union and

“Plaintiffs proceeded inder §$152, First and Seventh and 28 U.S.C.

$$2201 and 2202

Carricr for violating or interfering with members'

ratification and balloting rights ("Union Constitution"

or "UC" Claims); and (3) claims against the Union for

breaching its "duty of fair representation" (“DFR”), and

against the Airline for causing or contributing to those

breaches.

In each instance, Petitioners sought to redress

injuries inflicted on themselves and other employees,

nol injuries wmflicted on the union. They sought to

recover at least a portion of the wages and benefits

they lost as a result of the status-quo violations, and

damages for the deprivation of their balloting and

ratification rights. They did not seek a bargaining

order or damages for the union.

The District Court had jurisdiction over

Petitioners’ claims under 28 U.S.C. 8§1331 and 1367(a).

Because the state-law claims concerned the Union's

Constitution and not a collective bargaining agreement,

' they did not present "minor disputes," could not be

heard by an Adjustment Board, and were not

preempted under Norris v. Hawaiian Airlines, 512

U.S. 246 (1994).

OF Proceedings In The District Court

The action began as three separate lawsuits:

Lindsay wv. Association of Professional Flight

Attendants was commenced in the Superior Court for

the County of Los Angeles; Ford wv. Association of

‘Plaintiffs eould not assert their breach of Constitution claims

under Section 301 because 29 U.S.C. $185 does not apply to RLA

employees.

—

Professional Flight Attendants, in the Eastern District

of New York: and Marcouxz v. American Airlines, Inec..

in the Southern District of New York.

Lindsay was removed to the United States

District Court for the Central District of Calhfornia,

which denied plaintiffs motion to remand. (Pet. App.

131-140). The Union and Airline argued against

remand on the ground that “all of Plaintiff's claims

implicate and/or fall within the ambit of the duty of fair

representation ...”. (Pet. App. 186). Where that is so,

they maintained, plaintiffs claims “are governed

exclusively by federal law and are completely

preempted.” (Pet. App. 185). The District Court in

large part agreed. (Pet. App. 151-140). It also

transferred Lindsay to the Eastern District of New

York where, following transfer of Marcoux, the three

cases were assigned the same Judge and subsequently

consolidated.

In 2006 and 2008, Respondents sought dismissal

of the statutory and state-law claims on legal grounds,

and the DFR claims on the merits. The District Court

granted Defendants’ motions in their entirety,

dismissing the statutory claims for failure to state a

claim (Pet. App. 69-74) and the state law claims as

preempted (Pet. App. 107-114). It granted Defendants

summary judgment on the DFR claims (Pet. App. 81

90), and dismissed the motion for class certification as

moot (Pet. App. 91).

D. Proces dings ln The Court O] Appeals

The Second Circuit affirmed. (Pet. App. 1-33).

Like the District Court, it held that where there is a

functioning union, only the union- not its members- can

sue under the relevant sections of the Railway Labor

Act. (Pet. App. 4-16). Also like the District Court, it

found Petitioners’ “Union Constitution claims"

preempted. It did so on the ground that they were “in

substance, identical to ... DFR claims" and, thus,

preempted under Garmon. (Pet. App. 16-24, 52n.8)

Finally, it reiterated that, in the case of DFR claims,

the principal question is whether the union has acted

‘so tar outside a wide range of reasonableness" as to be

“wholly irrational or arbitrary” (Pet. App. 25, 29, 35n.9),

even when the conduct called into question relates to

internal union matters. rather’ than traditional

negotiations or grievance-handling.

hk. Lhe Statutory Scheme

The RLA is sui generis in several respects. Two

of them distinguish it from the NLRA, and those

differences are critical to the division among the

circuits submitted for this Court’s resolution.

Section 6 Procedures: ‘The Act choreographs

an elaborate and precisely sequenced set of procedures

that “carriers” and “employees” are required to follow

during the course of bargaining. The procedures are

extensive and each phase is mandatory. ‘They begin

with lengthy arms-length negotiations between the

parties’ representatives and progress’ through

mediation, voluntary arbitration, and a mandatory 30-

day cooling off period. While they are working their

way Lhrough these staves, neither party may alter the

status quo. It is only once these procedures have been

exhausted, without an agreement having been reached,

that the parties may resort to self-help. If- as a result

‘)

of this process- a collective bargaining agreement i

concluded, then, the provisions of §152 Seventh obtain.

Administrative Agencies: There are two

types of administrative agencies under the Railway

Labor Act: the National Mediation Board (“NMB”) and

Adjustment Boards. The Adjustment soards

adjudicate “minor disputes." The NMB has. no

equivalent adjudicatory authority. See, e.g., Chicago &

North Western Rwy. V. UTU, 402 U.S. 570, 580

(1971)(the NMB has no adjudicatory function under the

1926 Act); Detroit & 7.S.L.R. Co. v. UTU, 396 U.S. 142,

158 (1969)(the NMB has "no adjudicatory authority

with regard to major disputes nor has it a mandate to

issue regulations construing the Act generally"); Pan

American World Airways, Inc., 7 N.M.B. 168, 225

(1979). It has no authority to interpret the Act, enjoin

statutory violations, award damages for such violations,

or otherwise adjudicate employee-carrier claims.

Claims to the effect that the Act has been violated can

only be adjudicated by a court.

The administrative scheme established by the

RLA is thus the reverse of that established by the

NLRA. Under the NLRA, statutory violations can

only be decided by an agency (the NLRB), while claims

that a CBA has been breached come within the subject

matter jurisdiction of the courts.” See L.M.R.A., $301,

“Minor disputes’ refer to grievances that require the

interpretation of the terms of a collective bargaining agreement.

Of course, when the parties have agreed that a contractual

erievance-and-arbitration procedure shall be an employee's

exclusive remedy, the employer can defend against a claim in court

on the grounds that the employee has failed to exhaust contractual

remedies. Generally, an employee can only overcome that defens«

29 U.S.C

can only be «

has heen

Adjustment

to an

Type of

Cluumn

statut ory

violations

Claims

that a

| CBA has

| been

breached.

by owing (1) that the CBA gave

yrievance-and-arbitration process, al

grievance, Lhe Union breached its “DF

ed his union, an employee will be

claims." In other words, his ability to }

for a breach the CBA will b

relat DE R-hri by his unlor

>] S85.

breached

agency

| ciction ove}

Under the

lecided bu a court.

must

Board

under the

Under The NLRA

Primary juris

these

in the

State and

claims lie

NLRB.

federal courts

cannot entertain

them

These claims can be

brought in court,

provided the

parties have not

made a contractual

onievance-&

arbitration

procedure the

exclusive remed\

(See footnote }b.)

RLA,

while claims that a ©

In other word

NLRA

eourts under the RLA, and vice versa.

Latutory vil

brought hefore cl

, claims committed

are committed to the

In sum:

Under The RLA

Claims for

}

violations of § 152

Can only be decided

Jourd

by a court

AYCIICY or

| ha 5 yurisdi tion

Known as “minor

disputes,” these

claims can only be

brought before an

Adjustment Board

in the first instance.

not to eourt

L] inion LYoO L}

ad (i) tha n handling ti

*R.” Eve where | is not

required to prove “hybt

roceed ivalnst h emplove

i f ( yn | provitr

The fact that there is no RLA equivalent to the

National Labor Relations Board-— i.e., no agency with

Jurisdiction to interpret the RLA and rule on statutory

violations— leads to dramatic consequences. (This is

discussed at Point II).

REASONS FOR GRANTING THE PETITION

The Court SHOULD GRANT CERTIORARI TO

DETERMINE WIETHER EMPLOYEES AND FORMER

EMPLOYEES HAVE THE RIGHT TO SUE FOR

VIOLATIONS OF THE “STATUS QUO" PROVISIONS

OF THE RLA.

A. The Circuits Are Divided On The Issue Of

Whether Current Employees Have A

Private Right of Action

The Court below concluded, as a matter of first

impression, “that neither $152, First nor §152, Seventh

provides a private cause of action to individual

employees against their employers’ under the

circumstances present here.” (Pet. App. 16). Much

mischief lurks in that phrase and, if not rapidly

repaired, like a leaking oil tanker, will quickly pollute

the surrounding waters.

While the holding is ultimately qualified to mean

that the only party with standing to sue for violations of

the status quo is the union—- a conclusion in direct and

substantial conflict with this Court's “assuciational

standing” and labor law jurisprudence (see Points [.B.1

and .2 below)- it is rooted in the conviction that

relevant sections of the RLA, and perhaps the entire

Act, imply no private right of action at all. (Pet. App. 5

6, 8-10, See Opn at 5, 7, 17.) At least three Circuits

have expressly rejected the analysis upon which the

Second Circuit rested this preliminary conclusion. See

Lebow v. American Trans Air, Inc., 86 F.8d 661, 671 (7

Cir. 1996); Stepanischen v. Merchants Despatch

Transportation Corp., 722 F.2d 922, 926-27 (1* Cir.

1983); Burke v. Compania Mexicana de Aviacion, S.A.,

433 F.2d 1031, 1032-1034 (9" Cir. 1970).

Equally importantly, both this Court and every

other Circuit’ have recognized the existence of a

private right of action for violations of the status quo.

See generally, Consolidated Rail Corp. v. Railway

Labor Ewecutives Ass’n, 491 U.S. 299, 302-303 (1989);

Chicago & N.W.R. Co. vo. United Transportation Union,

402 US 570, 574-581(1971); Detroit & Toledo Shore Line

R. Co. v. United Transportation Union, 396 U.S. 142

(1969); Order of [?.2?. Telegraphers v. Chicago & N.W.

Ry. Co., 362 U.S. 380 (1960); Order of Rwy Conductors

of America v. Pitney, 326 U.S. 561, 566 (1946); Order of

Rwy Telegraphers v. Railway Eupress Agency, 321

See, ¢.g., 1. A.M. v. Transportes Aereos Mercanttles, 924 F.2d 1005

(11 Cir(under $152, First), cert. den'd, 502 U.S. 855 (1991);

United Transport. Union, L. bse v. Penn Cent., 443 F.2d 131 (6th

Cir.(under §$$152, Seventh and 156), cert. den’d, 404 U.S. 9388

(1971); Southern Ry. vo BLPFLB., 3884 F.2d 328 (D.C. Cir.

1L9G7)(under §152, First); United Indus. Workers v. Galveston

Wharves, 351 F.2d 188 (Sth Cir. 1965) (under $152, Seventh and

156), on appeal following remand, 368 F.2d 412 (1966), on appeal

following second remand, 400 F.2d 320 (1968), cert. denied, 395

U.S. 905 (1969); Railroad Yardmasters v. Pennsyloania &.Co., 224

2d 226 (Sd Cir. 195))under §142, Seventh).

U.S. 342, 347 (1944); Virginian R.Co. v. System

Federation, No. 40, 300 U.S. 515, 542-550 (1937); Texas

& New Orleans R.R.Co. v. Bhd. of Rwy & Steamship

Clerks, 33 F.2d 13, 14-17 (5thCir. 1929), affd, 281 U.S.

548, 565-566, 569 (1980).

Given the virtually universal reading of the

statute and status quo provisions as_ privately

enforceable, the Second Circuit ultimately rested its

decision on somewhat narrower’ grounds: even

assuming some private right of action, it is not available

to employees. (Pet. App. 9, 16).

The Circuit's position on this narrower issue can

be viewed from two perspectives: either’ that

employees do not have standing to sue under the Act,

or that only unions do. (Pet. App. 10-13, 16).

Whichever is adopted, the Second Circuit’s decision is

in conflict with other Circuits and seminal decisions of

this Court.

Seven Circuits have reviewed claims filed by

employees under one of the two status quo provisions

at issue here. The Second stands alone in finding that

employees lack standing. Every other Circuit has

either acknowledged or assumed they had standing or

would have standing where the "status quo" is actually

implicated. See, e.g., Regional Airline Pilots v. Wings

West Atrlines, 915 F.2d 1399, 1403 (9 Cir. 1990), cert.

den'd, 501 U.S. 1251 (1991)(dismissing claims by

employees and union where there had never been a

CBA or any "negotiation process instituted at all");

Kushto v. Bhd. of Rway Airline & Steamship Clerks,

818 F.2d 290 (4th Cir. 1987)(employees' claims

presented a "minor" rather than "major" dispute);

Carbone v. Meserve, 645 F.2d 96 (1st Cir.), cert. den'd,

454 U.S. 859 (1981)(same); Mungin v. Florida East

Coast Rwy Co., 318 F.Supp. 720, 724, 725, 730 (M.D.F la.

1970), aff'd, 441 F.2d 728 (5" Cir.), cert. den'd, 404 U.S.

897 (1971)on remand, reiterating holding that

employees have a cause of action); Mungin v. Florida

Fast Coast Rwy Co., 416 F.2d 1169 (5" Cir.

1969)(earlier appeal in which Circuit expressly

recognized employees’ right to sue); Hilbert ».

Pennsylvania R.R., 290 F.2d 881, 885 (7thCir.), cert.

den'd, 368 U.S. 900 (1961)(employees' claims presented

a "minor dispute"); Brotherhood of Railroad Trainmen

v. Smith, 251 F.2d 282 (6" Cir.), cert. den'd, 356 U.S. 937

(1958) (affirming injunction issued iter alia. under 152,

Seventh); Dwellingham v. Thompson, 91 F.Supp. 787

(E..D.Mo. 1950), aff'd sub nom. Rolfes v. Dwellingham,

198 F.2d 591 (8 Cir. 1952)(affirming entry, in mixed

dispute context, of preliminary injunction that restored

the status quo).' While the employees’ claims under the

“status quo” provisions did not, in many instances,

prosper, their standing to sue was. effectively

acknowledged. None of the decisions even suggests

employees may not have standing, or that only their

union would.

Only two Circuits have clearly held that

employees do not generally have a private right of

action under the Railway Labor Act: the Second

Circuit in this case and the Third Circuit in Bensel v.

See also Kaschak v. Consolidated Rail Corp., 707 F.2d 902, 908

910 (6% Cir. 1983) (analogizing an emplovee’s right to sue under the

RLA with the right to sue under section 301 and noting that “(t]he

rights of the individual employee as against the employer are not

coextensive with those of the union”).

Allied Pilots Ass'n, 387 F.3d 298 (3d Cir. 2004), cert.

den'd, 544 U.S. 1018 (2005). At best, Bensel provides

only arguable support for the Second Circuit’s decision.®

It may even support Petitioners on the specific issue of

employees’ right to sue their employer for violations of

the status quo.?

B. When The Issue Of Standing Is Viewed

From The Opposite Perspective And The

Question Is Whether Unions Alone Have

The Right To Sue, The Second Cireuit's

Decision Also Conflicts With Controlling

Decisions of This Court, Both in The

Labor And Article III Standing Context.

Because the injuries sought to be redressed in

this suit are those employees have suffered— as opposed

to those suffered by a union- the union could only have

brought this suit if it had third-party standing. See

generally Associated General Contractors v.

Carpenters, 459 U.S. 519, 541 n46, 545 (1983);

Transportation Workers Union v. Transp. Secretary,

492 F.5d 471, 475 (D.C.Cir. 2007); Trollinger v. Tyson

Foods, Inc., 370 F.3d 602, 618 (6th Cir. 2004)(noting

that a union could not sue in its own right “for

depressed wages because it does not receive wages; it

negotiates them,’ to represent employees on such a

“The employees in Bensel did not sue for status quo violations or

under §$152, First and/or Seventh.

Th P ” . . 1 fo il a “ys ° ‘ ‘ =

"In a separate part of the decision, the Third Circuit states that

plaintiffs had "statutory rights" under the status quo provisions

that they did not waive. It then treats those claims as if they had

been asserted by the employees and concludes, on the facts, that

the status quo was not violated. 487 F.3d at 315-316.

claim, it would have to sue in an “associational

capacily”).

Theoretically, there are three sources from

which a union could derive the authority to sue on

employees’ behalf. Congress could authorize it to sue.

The employees themselves could authorize it to sue.

Or, it could base its authority to sue on

“representative” or “associational standing” principles.

The Courts below relied exclusively on authority

conferred by Congress pursuant to the Railway Labor

Act.'° Under their reading of the Act, under the

statute, a union automatically acquires the right to sue

on employees’ behalf when the majority of a “craft or

class” chooses it as their bargaining agent. Its right to

sue is not only automatic, according to the Lindsay

Courts, but also exclusive, precluding employees from

suing on their own behalf. (Pet. App. 11-13, 16-17).

Each aspect of this holding contravenes this

Court’s precedents. The view that a_— union

automatically obtains the right to assert and settle

claims when it becomes employees’ exclusive

bargaining agent is contradicted by Elgin v. Burley,

325 U.S. 711 (1945), adhered to on rehearing, 327 U.S.

661 (1946), and the suggestion that it obtains an

exclusive right to sue on its employee-members’ behalf

is contradicted by this Court’s Article III “associational

standing” jurisprudence.

MAs previously noted, they could not rely on Section 301 since it

does not apply to RLA employees. (It doesn’t apply for obvious

reasons: because it authorizes suit in court for breaches of a CBA.

7 S

Under the RLA, breach-of-CBA claims are to be brought before an

Adjustment Board.)

e. The Second Circuit’s Decision

Contravenes Elgin.

In Hlgin, Joliet & Hastern Rwy Co. v. Burley,

supra, this Court drew a line between majority rule

and individual rights. It held:

(1) that one cannot assume from the fact that a

union “occupie[s] the position of collective bargaining

agent and as such ha[s] power to deal for the future,”

that it has similar authority “to settle” or “represent”

employees on claims, looking to the past. 325 U.S. at

741.

(2) that neither of the latter prerogatives is

“part of the collective agent’s exclusive statutory

authority,” id. at 740, and

(3) that, for a certified union to act in either such

capacity, it must first be expressly authorized to do so

by the employees it represents. Elgin effectively

establishes a consent rule. A union must be given

express authority “over and above any authority given

by the statute” before it can represent or settle

employees’ claims. Jd. at 741. Its authority is not

automatic.

The Second Circuit held the opposite: that the

statute conferred on APFA the exclusive authority to

sue on the flight attendants’ behalf by virtue of the fact

that it is their bargaining agent. While Elgin would not

preclude a_ finding, under the appropriate

circumstances, that a union has third-party standing, it

makes it clear that the RLA itself could not confer such

standing.

2. The Second Circuit’s Decision

Contravenes Warth, Hunt, and

Brown Group.

There is no statutory basis for third-party

standing, and no claim of express authorization here.

The only basis upon which to find third-party standing

lies in the representative or associational standing

principles developed in the context of this Court’s

Article III jurisprudence. The decision below stands

that jurisprudence on its head. It implies a cause of

action in favor of an entity that does not itself meet

Article III’s requirements (the Union), to the exclusion

of those who clearly do (the employees).

This Court has made it clear that under

representative or associational standing principles, a

union can only sue on its members’ behalf when the

members could themselves sue in their own right. See

generally, N.Y. State Club Ass’n Inc. v. City of New

York, 487 U.S. 1, 9 (1988)(“an association has standing

to sue.... when ... members would have standing to

bring the same suit”); Hunt v. Washington State Apple

Adver. Comm’n, 432 U.S. 333, 343 (1977); Warth v.

Seldin, 422 U.S. 490, 511, 516 (1975). See also United

Food & Commercial Union v. Brown Group, 517 USS.

544, 551-552 (1996). This is because the Union’s

standing in these circumstances is derived trom that of

its members. Accordingly, any standing it has is

cumulative, not exclusive. It does not displace its

members' rights. Thus, far from APFA being the only

appropriate plaintiff here, in fact APFA would only

have been able to sue because its members also have

that right.

3. The Second Circuit’s

Interpretation Of The RLA

Brings It Into Direct Conflict

With The Plain Language Of 29

U.S.C. § 411(a)(4).

In 1959, Congress passed what has generally

come to be known as the Union Member Bill of Rights.

Section 101(a)(4) of the L.M.R.D.A., 29 U.S.C. §

411(a)(4), states as follows:

No labor organization shall limit the right of any

member thereof to institute an action in any

court, or in-a_ proceeding before an

administrative agency, irrespective of whether

or not the labor organization or its officers are

named as defendants or respondents in such

action or proceeding, ...

29. U.S.C. § 411(a)(4). By holding that a designated

union inherently limits -— indeed eliminates —- its

members’ right to sue, the ruling below not only

contravenes the Railway Labor Act, it clashes with this

express Congressional prohibition.

Early in its Opinion, the Second Circuit

acknowledges that the status quo provisions "may well

benefit" employees. (Pet. App. at 10, 15). It then

proceeds, under the second and third of Cort v. Ash's

four factors,'' to imply a private right of action only in

favor of their "association." (Pet. App. 11-12, 15-16). So

doing, it not only contravened the intent of the status

quo provisions, the Act as a whole, and L.M.R.D.A.

11422 U.S. 66 (1975).

$101(a)(4), but also effected an end-run around this

Court's established “associational standing"

jurisprudence and basic Article [III requirements. (Pet.

App. 8-12, 15). This Court should grant certiorari to

make it clear that no cause of action can be "implied"

from any statute in violation of its Article III

jurisprudence.

ES. The Circuits Are Divided On The Issue Of

Whether A Union Can Represent Former

E'mployees.

Approximately one-third of the plaintiff group

and several thousand members of the putative class are

no longer employed by the Airline or members of the

Union. (See e.g., JA 5197 453). See generally, Allied

Chem. & Alkali Workers, Local Union No. 1 ».

Pittsburgh Plate Glass Co., 404 U.S. 157, 176

(1971)(“[rletirees are neither ‘employees’ nor

bargaining unit members’),

The Circuits are deeply divided on the question

of whether a union can represent former employees.

There are four views. At least two Circuits take the

position that a union does not have associational

standing to represent non-members. See United States

vw. City of Miami, 115 F.3d 870, 872-873 C11" Cir.

1997)(union not have associational standing to

represent non-members); Bangor & Arvostoock R.Co.

Vv. BLLLELE., 442 F.2d 812, 820 (D.C.Cir. 1971)(same).

See also L.BE.W. vw, Citrze WS Telecom. C'o. of

California, 549 F.8d 781, 787, 789 (9 Cir.

2008)( probably not have associational standing).'-

The Fifth, Sixth and Seventh Circuits have

effectively adopted a consent rule. See, e.g., LAM. v.

Goodrich, 410 F.3d 204 (5" Cir.), cert. den'd, 546 US.

1015 (2005); Uneted Steelworkers v. Cooper Tire, 474

F.3d 271, 2838 (6th Cir. 2007); Cleveland EHlectric v.

Utility Workers Union Locul 270, 440 F.3d 809, 818 (6

Cir. 2006); Exelon Generation v. Local 15, 540 F.3d 640

(7 Cir. 2008); Rossetto v. Pabst Brewing Co., 128 F.3d

538, 538-539 (7'" Cir. 1997), cert. den'd, 524 U.S. 927

(1998). The Eighth Circuit takes the position that a

union can incidentally represent former employees in a

suit legitimately brought in its own interests. See

I.B.E.W.v. GKN Aerospace, 431 F.3d 624 (8 Cir. 2005).

Only the Second Circuit has held that a union has

an automatic and exclusive right to sue on behalf of

former employees. (Pet. App. 2, 15-16)."’ Like the issue

concerning the union's preemptive right to represent

current employees, this is an issue that potentially

affects millions of employees in all unionized industries

and all Circuits. Also like that issue, it implicates and

must be decided in conformity with associational

Because the union had associational standing to represent those

who were still employees, it was not deprived of standing to

compel arbitration. 549 F.3d at 789.

‘Indeed, the Second Circuit appears to have believed that all of

the plaintiffs and everyone in the putative class are former

employees. (Pet. App. 2). That is mistaken. While a substantia!

number are, both the plaintiff group and putative class include past

and present employees, and former and current union members.

(Pet. App. 66, 100).

eh ee

standing principles. Given the plethora of views on the

issue, this Court's intervention is required.

LD). Reasons The Issue Of Standing Is

Important: Because The Court Of

Appeals Improperly “Hybridized” -

Indeed "Over-Hybridized" - The Law And

Permitted Majority Rule To Hatinguish

Vested Rights.

The Court of Appeals “superhybridized” the

employees’ claims against thei employer when no

hybridization was warranted. The term “hybrid

claims” is used in the labor context to characterize

claims for which an employee’s ability to sue his

employer is conditioned upon first being able to show

that his or her union breached its duty of fair

representation. The circumstances under which claims

can properly be treated as “hybrid claims” are very,

very limited.“ None of the three preconditions for

hybridizing is present here.

‘Hybrid claims” arise only when: (1) an employee sues his

employer for the breach of a collective bargaining agreement; (2)

the bargaining agreement establishes an extra-judicial procedure

(generally, a grievance-and-arbitration procedure) as_ the

employee’s exclusive remedy; and (3) the union is expressly given

control of the extra-judicial procedure by the agreement. Under

these circumstances, an employee will be relieved of his ‘‘failure to

exhaust his contractual remedics” and be permitted to proceed

against his employer in court if he can prove that, as a result of a

DFR breach by his union, he was deprived of his extra-judicial

remedy. See, e.g., Breininger v. Sheet Metal Workers Int'l Ass'n,

493 U.S. 67, 80 (1989); DelCostello v. 7.B.T., 462 U.S. 151, 163-165

(1983); UPS v. Mitchell, 451 U.S. 56, 61-62 (1981); Hines v. Anchor

Motor Freight, 24 U.S. 554, 567-570 (1976); Vaca v. Sipes, 386 USS.

at 184-186.

#>*)

“at

The decision below did not simply condition the

employees’ right to sue their employer on their first

proving a DFR breach, but substituted a DFR claim

against the union for any and all claims against the

employer. (Pet. App. 9, 14).

Unless the Second Circuit's decision is reversed,

this substitution will have far-reaching consequences.

As a practical matter, it will transform unions from an

agent and advocate for employees into a shield for

employers. As a legal matter, it will leave employees

with only one source from which to recover significant

economic losses: their union.

Making unions solely liable for losses inflicted by

employers violates principles to which this Court has

long adhered regarding the proper allocation of

damages as between an employer and a union. See, ¢.¢.,

Bowen v. United States Parcel Service, 459 U.S. 212,

221-223 (1983);" IBEW v. Foust, 442 U.S. 42, 49-50

The law of “hybrid claims” has no application to a case such as

this, Where the claims against the employer are statutory claims

rather than those brought under a collective bargaining agreement

that. provides for what parties have agreed should be a union

controlled administrative procedure As noted infra, in the

railway labor context, statutory claims can only be heard in a

judicial forum; they cannot be referred to any agency. Therefore,

statutory claims against an employer under the RIA and DFR

claims against a union cannot be made “hybrid claims.” Even when

they arise out of common facts, claims against an employer for

violating the status quo do not depend wpon the DFR claims. Sce,

e.g., Repstene v. Burlinglon Northern, Inc., 149 F.8d 1068, 1071

1072 (10th Cir. 1998).

Four Justices, including then Associate Justice Rehnquist,

dissented in Bowen on the grounds that the employer should have

(1979); Vaca wv. Sipes, 386 U.S. 171, 196-198 (1967)

Under those principles, an employer is neither to be

relieved of nor "shielded from the = ‘natural

consequences’ of its breach by wrongful union

conduct"'® and employees are not to be left "remediless."

459 U.S. at 222. The latter principle, often referred to

as the "compensation principle," is "[o]f paramount

importance." /d. Under it, employees are entitled to be

made whole.

Substituting a “DER claim” against the union for

all claims against the employer, would institute a

scheme that violates both principles. It would relieve

employers of statutory responsibilities of which they

are not entitled to be relieved, and leave employees

with no effective remedy. I[ndeed, it would require

employees to satisfy a standard of liability that it is

virtually impossible to meet in order to obtain a

judgment against a defendant that cannot make them

whole.

been "primarily liable for all backpay;" no portion should have been

shifted to the union. 459 U.S. at 231-243

‘Thus if the petitioner in this case does not collect the damayes

apportioned ayainst the Union, the . [Rinployer| remains

secondarily liable for the full loss of backpay." Bowen, 459 U.S. at

ow eet

Fany |

If. THE COURT SHOULD GRANT CERTIORARI TO RE-

ESTABLISH ORDER IN THE AREA OF RLA

PREEMPTION AND CLARIFY THE RELATIONSHIP

BETWEEN DFR LAW AND CLAIMS THAT RIGHTS

UNDER A UNION CONSTITUTION HAVE BEEN

VIOLATED.

While this Court attempted, in Norris. v.

Hawaiian Airlines, supra, to settle the issue of RLA

preemption for all time, in the past ten years, the law

on this issue has shown greater entropy than

cohesiveness: different Circuits take widely different

views and apply markedly different tests. (See

Subpoint C, post). With the Opinion below, the Second

Circuit has accelerated the pace at which the federal

labor-law universe is expanding, and the state-law

universe contracting.

The decision below clones the rule prescribed by

San Tiego Building Trades Council v. Garmon, 359

U.S. 236 (1959), and grafts it on to the RLA." While

acknowledging that "Garmon was decided in the

context of the National Labor Relations Act," the

Circuit relies on two decisions to "extend" Garmon to

the RLA: this Court's decision in Brotherhood of

Railroad Trainmen v. Jacksenville Terminal C'o., 394

U.S. 369 (1969) and the decision in Bensel, 587 F.3d at

321. (Pet. App. 19).

Superficially, the clone is distinguishable from its NI.RA-model

in only one respect: It preempts claims concerning conduct

uclually or arguably protected or prohibited by the RLA, instead of

the NLRA. (Pet. App. 17, 19, 23, 110). Beneath the surface, the

differences are far-reaching.

Once again, the Second and Third Circuits stand

together, but alone, in their misreading of this Court's

precedents. They misread the Jacksonville Terminal

decision. This Court did not apply Garmon preemption

in that case; but rather, what has come to be known as

Machinists preemption." It even expressly cautioned

avainst confusing the two types of preemption.'” Thus,

it warned that "care must be taken to distinguish pre-

emption based on federal protection of the conduct in

question ... from that based predominantly on the

primary jurisdiction of the National Labor Relations

Board." 394 U.S. at 384 n.19. It identified Garmon as

the second type of preemption and Machinists is a

quintessential example of the first type.”

“All doubt on this question is eliminated by two facts: The

decision in Machinists adopts Jacksonville's preemption test

verbatim, and expressly credits Jacksonville with having

formulated the correct test. See Jnternational Association of

Machinists v. Wisconsin Employment Relations Board, 427 U.S.

32, 147-148 (1976) Jacksonville test embraced by the majority);

Concurrence at 155 (agreeing Jacksonole provides the correct

test): Dissent at 156-159 (Garmon should have been applied

instead)

“It alsa generally cautioned against applying NLRA policies to the

RLA: "We refer to the NLRA's policies not in order to ‘apply'

them, ... [this] would be neither justified nor practicable- but only

to determine whether [the activity in question, there picketing] is

within the general penumbra of conduct held protected by the Act,

or whether it is beyond the pale of any activity thought

permissible.” 304 U.S. at 384. It further noted that "Congress has

invested no agency with even colorable authority’ to adapt "the

NLRA's principles to railway disputes," 2d. at 391-392, and that the

RLA has no agency equivalent to the NLRB. /d. at 384.19

“Machimsts preemption protects conduct that Congress intended

to be unreguiated from regulation by state law,

Because the Second Circuit's decision misreads

Jacksonville and ignores important differences

between the RLA and the NLRA, its decision is

irreconcilable with fifty years of this Court's

preemption jurisprudence.

A. The Ruling Below Contravenes Sears

Roebuck & Co

In Sears, Roebuck & Co., 436 U.S. 180, 183,187-

188, 201-202 (1978), this Court recognized two

prerequisites to Garmon’s application: (1) an agency

with jurisdiction over the parties’ controversy; and (2)

an ability on the part of a litigant either himself to

invoke or induce his opponent to invoke its jurisdiction.

Id. Put even more simply, for Garmon to apply, there

must be an agency to which the specific controversy or

claims could have been submitted.

There is no such agency here. This is so

whether one accepts the thesis posited by the Courts

below - 1Le., that the "UC Claims" concern conduct

actually or arguably protected or prohibited by the

RLA- or whether, as Belknap v. Hale, 463 U.S. 491, 510

(1983), suggests is appropriate, one examines the

character of the claims more closely.

‘ )

1. There is No RLA Agency With

Jurisdiction Over Statutory

Claims

Even assuming plaintiffs’ "UC claims" could

arguably be characterized as stating violations of the

vailway Labor Act, this Court has made _ it

unmistakably clear that, under the RLA, statutory

violations are not consigned to any agency. See

Communications Workers v. Beck, 487 U.S. 735, 743

(1988) ("Unlike the NLRA, the RLA establishes no

agency charged with administering its provisions, and

instead leaves it to the courts to determine the validity

of activities challenged under the Act”).

2. There Is No RLA Agency With

Jurisdiction Over DFR Claims

Or Violations Of A _ Union's

Constitution

Three state-law claims are still at issue in the

lawsuit. Claim Eleven seeks damages against the

Union for having violated its members' balloting and

ratification rights under its Constitution and Bylaws.

Claims Twelve and Sixteen seek damages against the

Carrier for having intentionally interfered with the

union-member contract.

728

The Second Cireuit characterized these claims as

being "identical to" or “in substance, identical to

DFR ... claims” and therefore, arguably an RLA

violation. (Pet. App. 31 n.6, 32 n&). Petitioners

characterized them as traditional claims in contract and

tort for the violation of rights under a_ union

constitution. *'

“The fact that the "UC" and "DFR" claims arise out of the same

nucleus of operative fact does not make them “identical” or “in

substance, identical." (But see Pet. App. 32n.8). In their DFR

claims, Petitioners sought to prove that the Union had acted in bad

faith. In their "UC Claims,” Petitioners sought to preve that the

Union had violated specified provisions of its Constitution.

Specifically, they sought to prove, among other things, that:

1) APFA set up an‘electronic voting system that did not

satisfy the requirement of APFA's Constitution that a vote or

referendum be "secret." (The system it set up utilized two

numbers neither of which was secret: The first consisted of

employees' 1D numbers- known to both APFA and Airline- and

publicly emblazoned on each employee's work badge. (JA 2429

9121-122; Pet.App. 60). The second (the PINs) were assigned

sequentially, by base, in alphabetical order. Any flight

attendant with access to a list of attendants flying out of his or her

base, and knowledge of his own PIN, could easily ascertain the

PIN of every other potential voter. (JA 1738-2409; JA 2429 9123).

Using these two numbers, anyone's ballot could be accessed on a

computer. (J A1745-4),

2) while the balloting was underway, APFA and Airline

both monitored the vote, in further violation of the secrecy

requirement, (Pet. App. 26);

3) probably as a result of information gleaned from the

monitoring, they made changes to the proposed agreement while vf

was heing voted on. (This violated the Constitutional provision

requiring that the membership "be piven the cormplete chanpes to

... [the] Collective Bargaining Agreement ... prior to or at the start

of the balloting period.’ (Pet. App. 87, 93, 103). (Because of these

changes, different people voting on different days voted on

different proposed ayvreements.

Whether these claims are viewed as, “in

substance, identical to DER claims" or as distinct claims

for violations of rights under a contract, it remains clear

that there is no RLA agency to which they could have

been submitted.

4) when, an hour or two before the voting was scheduled to

close, it became apparent that the agreement was nonetheless

going to he rejected, Airline and APFA's leadership met and

agreed what to do (JA 1482-3; JA 2426-7 9999-100, JA 1607-9)

5) consistent with this agreement, APFA directed the

American Arbitration Association to re-open the vote, accept

additional ballots and permit already-cast ballots to be changed.

(The Constitution provided that ballots cast or received after the

date and time specified on the ballot were "void." (JA 1467;

Art.V1.5.E, Art.X1.1.E.2, Art.[X.6.4.4) It also required that “valid

ballots" be counted. (/d.; Art. [I1.1.B; Art.1X.1.D-F-G; JA1565-6

Art.V1.5.K; Art. V1.4). Both provisions were violated.)

6) during the extension, Company went to extraordinary

lengths to pressure flight attendants to vote, or change their votes

to "Yes." So pervasive was company interference that APF A wrote

the Company, demanding "BACK OFF AND STAY OUT OF

OUR VOTING PROCESS." Company ignored APF A's protests.

(JA 2427-8 9111-17, JA 1871; JA 1612; JA 1545; JA 1461; JA 1182-

87; JAY 58-59; JA 823-24; JA 852-54; JA 3681; JA 482-90; JA1187);

7) because of the Company's actions during the extension

and its withholding of information regarding executive bonuses

and perks, on 4/22/03, APF A's Board of Directors determined that

the ratification vote had been “tainted” and formally set it. aside.

(JA 1469-72). It directed that a new vote be conducted in

accordance with its Constitution and announced the new vote to

the membership. Jd.

8) three days later, APFA cancelled the new vote and,

despite its lack of authority to do so under its Constitution, signed

an agreement with the Company, (JA 1479-81; JA 1537-42; Pet.

App. 65-66), thereby depriving the membership of the ratification

vote the Union Constitution mandated. (JA 1467, Art.I11.2.A;

Art.X1.1).

ol]

Ten circuits have interpreted Gavrmon as have

Petitioners, requiring the preemption decision to be

made with a scalpel, not a hatchet. The test is not

whether a vast area of disputes is covered by the Act,

but whether a specialized agency has been charged

with resolving the specific controversy presented to the

court. 7

B. The kuting below Contravenes This

Court's Decisions In Davis, Belknap And

An Unbroken Line of Precedents

In an effort to avoid the problem posed by the

absence of any agency to deter to, the Second Circuit

has attempted to recast Garmon as a "choice-of-law"

rule, the objective of which is to determine whether a

particular state law might ""stand[] as an obstacle to

“These Circuits only apply Garmon to preempt state-law claims

where the controversy presented by them is "identical to one

which could have been brought before the NLRB.” See, e.g., FJ.

Dupont de Nemours & Co. v. Sawyer, 517 F.3d 783 (Sth Cir. 2008);

Felix v. Lucent Technologies, 387 F.3d 1146, 1165-1166 (10" Cir.

2004), cert. den'd, 545 U.S. 1149 (2005); Pace Industries v. NLRB,

118 F.3d 585, 589 (8“ Cir. 1997), cert. den'd, 523 U.S. 1020 (1998);

Tamburello v. Comm Tract Corp., 67 F.3d 973, 980-981 (1% Cir.

1995), cert. den'd, 517 U.S. 1222 (1996); Loewen Group ».

Haberichter, 65 F.3d 1417, 1425-1426 (7 Cir. 1995); Davis

Supermarkets v. NLRB, 2 F.3d 1162, 1178-1179 (D.C.Cir. 1993),

cert. den'd, 511 U.S. 1003 (1994); Talbet v. Robert Matthews

Distrih. Co., 961 F.2d 654, 659-660 (7" Cir. 1992): Piatt uv. Jack

Cooper Transport, 959 F.2d 91 (8 Cir. 1992); Parker v. Connors

Steel, 855 F.2d 1510, 1516-1518 (11" Cir. 1988), cert. den'd, 490 US.

1066 (1989); Serrano v. Jones & Laughlin, 790 F.2d 1279, 1288 (6"

Cir. 1986); Sheet Metal Workers Int'l uv. NLRB, 716 F.2d 1249,

1263 (9 Cir. 1983); United Credit Bureau of America v. NLRB,

643 F.2d 1017, 1025-1026 (4° Cir. 1981), cert. den'd, 454 U.S. 994

(1981).

ary

the accomplishment and execution of the full purposes

and objectives of Congress.” (Pet. App. 20). It then

attempts to meet that test by recasting Petitioners'

"UC Claims" as claims that concern "conduct central to

Congress's RLA goals" and "core- RLA conduct." (Pet.

App. 22).

In each respect, the ruling below conflicts with

both this Court's decisions and the decisions of other

Circuits. Not only are activities related to contract

ratification far from the “core” of the RLA, they are

outside its parameters entirely. See, e.g., DeBoles v.

Trans World Air Lines, Inc., 552 F.2d 1005, 1018 (38d

Cir. 1977), cert. den’d, 434 US. 837 (1977)Git is because

federal labor statutes do not address the question that

the ratification of contracts is only required “if the

union constitution or by-laws require it”); White ».

White Rose Foods, 237 F.3d 174, 182 (2d Cir. 2001).

Equally to the point, Garmon is not a "conflict-

of-law" rule. As this Court has made unmistakably

clear, Garmon presents a "choice-of-forum rather than a

choice-of-law spared " International Longshoremen's

Ass'n v. Davis, 476 U.S. 380, 381 n.9 (1986). Its purpose

is to ensure that a that should be submitted to the

NLRB are submitted there, and it achieves that

purvose by precluding other tribunals from exercising

their jurisdiction. See, e.g., Marquez v. Schreen Actor's

Guild, 525 U.S. 33, 49 (1998); Golden Gate Trans. Corp.

v. City of Los Angeles, 493 U.S. 103, 111 n.7 (1989);

Beck, 487 U.S. at 742; Longshoremen v. Davis, 376 US.

380, 391, 393 n.10 (1986); Adlis-Chalmers Corp. v.

Lueck, 471 U.S. 202, 211 (1985); Brown v. Hotel

Employees, 468 U.S. 491, 502-03 (1984); Sears, Roebuck,

supra, Jacksonville Terminal, 394 U.S. at 382 n. 17;

6) +)

ee)

Local 174, Teamster, Chauffeurs & Warehousemen v.

Lucas Flowr, 369 U.S. 95, 102 (1962); Garmon, 350 U.S.

236 (1959). Whether Garmon actually deprives them of

"subject matter" jurisdiction or is simply a claims-

processing rule is a question that need not detain us. In

either event, its principal purpose and effect is to

redirect litigants from one forum to another and not, as

the Courts below believed, to require courts to

themselves undertake an in-depth analysis of the

interplay between state and federal law. The whole

point of Garmon is that the task of evaluating and

articulating the law is to be left to the specialized

agency.

It follows that it makes absolutely no sense to

apply Garmon, as the Courts did _ below, to

circumstances in which the judicial forum is the only

forum available. It cannot protect the jurisdiction of

any forum under those circumstances; it can only

deprive litigants of any forum for their claims.

C. On The Issue Of RLA Preemption, The

Circuits Are Not Simply Divided They

Are In Considerable Disarray.

There is no longer either unanimity or clarity on

the question of which of this Court's decisions to apply

in determining RLA preemption. Over the past ten

years, there has been increasing divergence on the

issue. See, e.g., Lindsay, Pet. App. 1-33 (2d Cir.

2009)(Garmon standard); Wisconsin Cent. Ltd. v.

Shannon, 539 F.3d 751 (7'* Cir. 2008)(“‘field

preemption”); Bloemer v. Northwest Airlines, Inc., 401

F.3d 935 (8 Cir. 2005) Norris/Lingle standard); Bensel

v. Allied Pilots’ Ass’n, 387 F.5d 298, 321 (3" Cir.

2003)(Garmon); McCormick v. Arreraft Mech.

Fraternal Ass’n, 340 F38d 642, 644-45 (8 Cir.

2003)(Norris/Lingle); Kaufman v. Allied Pilots Ass'n,

274 F.3d 197 (5th Cir. 2001), cert. den'd, 535 U.S. 1034

(2002)(Garmon applied to preempt passengers’ claims

against union for damages resulting from job actions);

Air Transp. v. City & County of San Francisco, 266

F.3d) = 61064, 1076 (9th Cir. 2001)(Norris/Lingle;

Machinists), Adames v. Executive Airlines, Inc., 258

F.3d 7 (1* Cir. 2001)(Norris/Lingle); Brown v. Illinois

Central, 254 F.3d 654 (7th Cir.), cert. den'd, 5384 U.S.

1041 (2001)(applies Norris/Lingie in preclusion

context); Fazrbairn v. United Arr Lines, 250 F.3d 237

(4th Cir. 2001)(utilizing Norris/Lingle analysis, Circuit

finds that RLA doesn't preempt claims arising under

individual employment contracts); F'rtle v. Continental

Airlines, Inc., 1386 F.8d 690 (10" Cir. 1998)( Norris);

Espinal v. Northwest Airlines, 90 F.8d 1452 (9 Cir.

1996)(Norris/Lingle); Pyles v. United Airlines, 79 F.3d

1046, 1050 (11 Cir. 1996)(Norris/Lingle); Hirras. v.

Nat'l R.R. Pussenyer Corp., 44 F.8d 278 (5 Cir.

1995)(Norris/Lingle); Henegar v. Banta, 27 F.8d 228,

226-227 (6 Cir.), cert. den'd, 513 U.S. 1057

(1994)(Norris/Lingle).

D), This Court's Intervention Is Necessary

To Restore Order On This Issue. The

Consequences Of Permitting This Circuit

Spht To Persist Are Dramatic And

Dangerous.

In the final analysis, the decision below reads a

preemption provision into the RLA that is not there in

order to protect the jurisdiction of an agency that does

not exist. It also alters traditional preemption analysis

by measuring the preemptive scope of one statute (the

RLA) by the Congressional intent of a very different

one (the NLRA). It then ignores the two prerequisites,

established by myriad decisions of both this Court and

ten sister Circuits, for applying the NLRA ruwie.

Finally, it dispenses entirely with the third tier of the

preemption analysis, stating, “actual conflict is not a

prerequisite to finding a state claim preempted by the

RLA." (Pet. App. 23).

As a practical matter, left to stand, the preemption

doctrine applied below would radically affect

employees’ rights. It would deprive employees

covered by the Railway Labor Act of a right all

other employees have: the right to enforce their

union constitution. Like the ruling on standing, the

decision below on preemption means that employees

covered by the RLA essentially have no forum- state

or federal, administrative or judicial- for the kind

of claims raised here. All they have is an iliusory

right to attempt to prove their union has been "wholly

irrational." Should a court permit them to reach a jury

on that claim, they would then have the right to

attempt to obtain an uncollectible judgment.

Because here the Union Constitution clearly

gave its members contract ratification and balloting

rights, the Union abrogated its provisions, and the

Airline contributed to and/or caused its breach, none of

Petitioners' state-law claims is preempted. These

claims are not covered by the RLA's lone and very

limited express preemption provision, 45 U.S.C. § 152

Eleventh. The "field" they occupy- Le., the field of

internal union-employee relations- has not been

‘occupied" by the Railway Labor Act. And, as the

Second Circuit has tacitly acknowledged, there is no

"actual conflict" between the "UC Claims" and any

relevant federal] law. (Pet. App. 23, 31n.6, 32n.8). They

do not conflict with the RLA's substantive provisions,

with DFR law, or the jurisdiction of any agency. ‘To the

contrary, they clearly fall outside Norris/Lingle since

they do not require the interpretation of a collective

bargaining agreement.

CONCLUSION

This case presents an ideal vehicle to resolve not

only significant issues of statutory interpretation under

the RLA, but issues of preemption at the heart of our

federal system and the interpretation of Article III

standing principles in the context of labor unions and

their membe’s. In addition to resolving contradictory

rulings from different circuits and establishing a

uniform set of principles for all to follow, the resolution

of these issues would be of enormous practical

importance to millions of working men and women and

their families, as well as unions and employers under

both the RLA and NLRA.

Petitioners respectfully request that the Court

grant certiorari on all questions presented.

Respectfully submitted,

Also on the brief: EMILY M. BASS

Counsel of Record

LINDA A. RACKIEL 551 Fifth Avenue

STEVEN M. NACHMAN 28th Floor

MICHAELS. HABER New York, N.Y. 10176

(646) 810-3117

(any footnotes trail end of each document)

08-4122-cev (L), 08-4128-cv (con), 08-4130-cv (con)

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

JILL LINDSAY, individually and on behalf of all

others similarly situated, CAROL JOHNSON,

CONSTANCE LAMATTINA, DANIEL SANTIAGO,

DEBORAH WHITTINGTON, DOTTIE LONG,

JANET GOLD, JUDITH ALEXANDER, KAREN

RIVOIRA, LAURENCE E. SALOMON III,

PATRICIA KENNEDY, PATTY GENTRY,

REBECCA SMITH, Plaintiffs-Appellants,

oo Y=

ASSOCIATION OF PROFESSIONAL FLIGHT

ATTENDANTS, a business entity of unknown type,

AMR CORPORATION, a Delaware corporation, also

known as American Airlines, AMERICAN

AIRLINES, INC., also known as American Eagle, and

JOHN WARD, Defendants-Appellees.

July 6, 2009, Argued

September 21, 2009, Decided

COUNSEL: EMILY M. BASS, Brooklyn, New York

(Steven M. Nachman, New York, New York; Michael S.

Haber, New York, New York; Martin Garbus, Davis &

Gilbert, New York, New York, on the brief), for

Plaintiffs-Appellants.

For STEPHEN B. MOLDOF (Michael L. Winston,

Travis M. Mastroddi, on the brief), Cohen, Weiss and

Simon LLP, New York, New York, for Defendants-

)

Appellees Association of — Professional Flight

Attendants and John Ward.

For THOMAS E. REINERT, JR. (Jonathan C. Fritts,

on the brief), Morgan, Lewis & Bockius LLP,

Washington, D.C., for Defendants-Appellees American

Airlines, Inc. and AMR Corporation.

JUDGES: Before: RAGGI, HALL, Circuit Judges,

and BIANCO, District Judge. *

REENA RAGGI, Circuit Judge:

Plaintiffs Jill Lindsay, Carol Johnson, Constance

LaMattina, Daniel Santiago, Deborah Whittington,

Dottie Long, Janet Gold, Judith Alexander, Karen

Rivoira, Laurence E. Salomon III, Patricia Kennedy,

Patty Gentry, and Rebecca Smith, proceeding

individually, and in Ms. Lindsay's case, also on behalf of

a putative class of flight attendants, filed suit in the

United States District Court for the Eastern District of

New York (Nina Gershon, Judge), challenging the

validity of a Restructuring Participation Agreement

reached between their former employer, defendants

American Airlines and its parent AMR Corporation

(collectively, "American Airlines"), and their union,

defendant Association of Professional Flight

Attendants, and its former president defendant John

Ward (collectively, "APFA" or the “union"). Plaintiffs

now appeal an award of summary judgment entered on

July 22, 2008, in favor of American Airlines on plaintiffs’

claims under the Railway Labor Act ("RLA"), 45 U.S.C.

§ 151 et seq.; in favor of American Airlines and APF A

on plaintiffs’ state law claims; and in favor of APF'A on

plaintiffs’ claim of a breach of the duty of fair

representation. We conclude that plaintiffs’ challenge

fails because (1) the statutory sections relied on by

plaintiffs to support their RLA claim, 45 U.S.C. § 152,

First and Seventh, do not provide for a private cause of

action; (2) the RLA preempts plaintiffs’ state law

claims; and (3) plaintiffs failed to adduce sufficient

evidence of a material fact on their fair representation

claim to defeat summary judgment.

Accordingly, we affirm the judgment of the district

court in favor of defendants.

I. Backyvround

The district court's thorough opinion fairly chronicles

the complex events giving rise to defendants'

Restructuring Participation Agreement, which

plaintiffs challenge in this action. See Marcoux v. Am.

Airlines, Inc., F.Supp. 2d , 2006 U.S. Dist. LEXIS

14130, 2006 WL 842888 (E.D.N.Y. 2006). We assume

familiarity with that opinion, and we do not ourselve:

repeat the facts except as necessary to discuss

plaintiffs’ appeal of the award of summary judgment.

LI]. Discussion

A. Standard of Review

We review an award of summary judgment de novo,

“construing the evidence in the light most favorable to

the non-moving party and drawing all reasonable

inferences in its favor." SCR Joimt Venture L.P. »v.

Warshawsky, 559 F.3d 133, 187 (2d Cir. 2009).

Summary judgment muy be granted only ‘if the

pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). "An issue of fact is genuine if the evidence is such

that a reasonable jury could return a verdict for the

nonmoving party. A fact is material if it might affect

the outcome of the suit under the governing law." SCR

Joint Venture L.P. v. Warshawsky, 559 F.3d at 137.

B. Plaintiffs’ Railway Labor Act Claims

Plaintiffs contend that American Airlines violated those

provisions of the RLA codified at 45 U.S.C. § 152, First

and Seventh by supplanting an existing collective

bargaining agreement with the Restructuring

Participation Agreement. Section 152, T'irst states as

follows:

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 emplovees thereof.

Section 152, Seventh states as follows:

No carrier, its officers, or agents shall chanye the

rates of pay, rules, or working conditions of its

employees, as a class, as embodied in agreements

except in the manner prescribed in_ such

agreements or in section 156 of this title.

Id. § 152, Seventh.

No party has pointed us to any case law addressing

whether these sections provide for a private right of

action by individual employees, nor have we identified

any. In considering this question of first Impression, we

begin by reviewing the general enforcement structure

of the RLA.

1. Arbitral Resolution of Major and Minor Disputes

Under the RLA

"The Railway Labor Act was passed in 1926 to

encourage collective bargaining by railroads and their

employees in order to prevent, if possible, wasteful

strikes and interruptions of interstate commerce."

Detroit & Toledo Shore Line R.P. Co. v. United Transp.

Union, 396 U.S. 142, 148, 90 S. Ct. 294, 24 L. Ed. 2d 325

(1969); see also 45 U.S.C. § 181 (amending RLA to apply

to interstate air carriers). Toward this end, the RLA

provides an arbitral mechanism for "the prompt and

orderly settlement" of two classes of disputes between

unions and employers. Hawaiian Airlines, Inc. v.

Norris, 512 U.S. 246, 252, 114 S. Ct. 2239, 129 L. Ed. 2d

203 (1994) (quoting 45 U.S.C. § 15ta). The first class,

referred to as "major" disputes, relates to ‘the

formation of collective [bargaining] agreements or

efforts to secure them." Consolidated Rail Corp. v. Ry.

Labor Ewecutives' Ass'n, 491 U.S. 299, 302, 109 S. Ct.

2477, 105 L. Ed. 2d 250 (1989) (internal quotation marks

omitted). The second class, known as "minor" disputes,

see 2d. at 303, "grow|s]-out of grievances or out of the

interpretation or application of agreements covering

rates of pay, rules, or working conditions," 45 U.S.C. §

15la(5). In other words, "major disputes seek to create

contractual rights, minor disputes to enforce them."

Hawaiian Airlines, Inc. v. Norris, 512 U.S. at 2538.

2. Private Enforcement of the RLA

Beyond the arbitral scheme for resolving disputes

between employers and unions, the RLA also provides

for federal criminal enforcement. See 45 U.S.C. § 152,

Tenth ("It shall be the duty of any United States

attorney to whom any duly designated representative

of a carrier's employees may apply to institute in the

proper court and to prosecute under the direction of the

Attorney General of the United States, all necessary

proceedings for the enforcement of the provisions of

this section."). Although the RLA does not explicitly

provide a private civil cause of action, the Supreme

Court has found such an action by a union implicit in the

statutory scheme.

In Texas & New Orleans Railroad Co. v. Brotherhood

of Railway & Steam ship Clerks, the Supreme Court

recognized a private right of action by a union alleging

that the defendant company was "interfering with,

influencing, or coercing the clerical employees of the

railroad company in the matter of their organization

and designation of representatives" in violation of § 152,

Third. 281 U.S. 548, 555, 50 S. Ct. 427, 74 L. Ed. 1034

(1930). The Court concluded that "Congress, in the

legislation of 1926, while elaborating a plan for amicable

adjustments and voluntary arbitration of disputes

between common carriers and their employees, thought

(

it necessary to impose, and did impose, certain definite

obligations enforceable by judicial proceedings." /d. at

967. In fact, private civil proceedings constitute the

bulk of cases arising under the RLA. See United States

v. Winston, 558 F.2d 105, 108 & n.3 (2d Cir. 1977)

(noting "[t]he paucity of criminal proceedings under §

152, when contrasted with the active pursuit of civil

relief thereunder").

Although much of the case law involving private causes

of action under § 152 concerns claims brought by or

against a certified union, our sister circuits have

recognized an implied private right of action for

individual employees against their employer under

certain RLA provisions, notably § 152, Third and

Fourth. See, e.g., Bensel v. Allied Pilots Ass'n, 387

F.5d 298, 318 (3d Cir. 2004) (collecting cases); Hennessy

v. Sw. Arrlines, 91 F.3d 1359, 1362-64 (9th Cir. 1996);

Stepanischen v. Merchs. Despatch Transp. Corp., T22

F.2d 922, 927 (1st Cir. 1988). The Third Circuit

explained that "lilmplying a private cause of action for

individual employees under 45 U.S.C. § 152, Third &

Fourth is appropriate given that those sections prohibit

carriers from discriminating against employees in

connection with union organizing activities."’ Bensel v.

Allied Pilots Ass'n, 387 F.8d at 318 (emphasis in

original). By contrast, the Third Circuit declined to find

an imphed private cause of action for individual

employees in § 152, Second and Ninth because,

although the statute ‘may indicate a congressional

intent to create a private cause of action for a duly

certified representative that is injured pursuant to

that "does not imply that Congress

intended to create a private right of action for any

these provisions,

group or groups Of individual employees claiming to act

on behalf of the relevant employees."* /d. at 319.

3. Section 152, First and Seventh Do Not Provide a

Private Cause of Action

Against this background, we consider whether § 152,

First or Seventh provides an individual employee with

a private right of action against his employer. Because

our task is to ascertain Congress's intent, we look first

to the text and structure of the statute. See Aleaander

». Sandoval, 532 U.S. 275, 286-87, 121 S. Ct. 1511, 149 L.

Ed. 2d 517 (2001). If Congress has manifested no intent

to provide a private right of action, we cannot create

one. See id. We identify nothing in the RLA's text or

structure suggesting Congress's intent to create a

private remedy. We next proceed to consider "whether

a private remedy is implicit in [the] statute." Cort v.

Ash, 422 U.S. 66, 78, 95 S. Ct. 2080, 45 TL... Ed. 2d 26

(1975). In undertaking this second inquiry, four factors

guide our analysis:

First, is the plaintiff one of the class for whose

especial benefit the statute was enacted - that is,

does the statute create a federal right in favor of

the plaintiff? Second, is there any indication of

legislative intent, explicit or implicit, either to

create such a remedy or to deny one? Third, is it

consistent with the underlying purposes of the

legislative scheme to imply such a remedy for the

plaintiff? And finally, is the cause of action one

traditionally relegated to state law, in an area

basically the concern of the States, so that if

would be inappropriate to infer a cause of action

based solely on federal law?

Id. Gnternal citations and quotation marks omitted).’

For the reasons stated in the next three subsections of

this opinion, we conclude that Congress did not intend

to create a private cause of action for employees to

enforce § 152, First or Seventh. The appropriate

remedy for injuries of the sort plaintiffs allege is a claim

against their union for breach of the duty of fair

representation.*

a. Text and Structure

The text of § 152, First and Seventh reveals no

congressional intent to create a private right of action.

"Statutes that focus on the person regulated rather

than the individuals protected create no implication of

an intent to confer rights on a particular class of

persons." Alexander v. Sandoval, 532 U.S. at 289

(internal quotation marks omitted); see also Bellikoff v.

Eaton Vance Corp., 481 F.3d 110, 116 (2d Cir. 2007)

(‘[T]The absence of 'rights-creating language' indicates a

lack of congressional intent to create private rights of

action."). Section 152, First imposes a "duty" on “all

carriers, their officers, agents, and employees.’

Likewise, § 152, Seventh bars certain actions by a

carrier, its officers, or agents.’ Because both provisions

focus on the regulated parties, we discern no intent to

confer privately enforceable rights.

The statute's structure also supports this conclusion. As

the Supreme Court has recognized, “[t]he express

provision of one method of enforcing a substantive rule

suggests that Congress intended to preclude others."

Alexander v. Sandoval, 532 U.S. at 200. Here, Congress

expressly contemplated that the RLA would be

enforced through arbitral panels, see 45 U.S.C. § 184,

l0a

and criminal prosecution, see 45 U.S.C. § 152, Tenth.’

Congress's failure to provide similarly for private

enforcement signals caution in inferring any such right

of action. The prior implication of private rights under

other subsections of 45 U.S.C. § 152 warrants no

different conclusion. Indeed, Sandoval involved Title VI

of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.

In an earlier Title VI case, the Court had noted that

private plaintiffs could sue under § 601. See Cannon v.

Univ. of Chicago, 441 U.S. 677, 694-96, 99 S. Ct. 1946, 60

L. Ed. 2d 560 (1979). Nevertheless, that consideration

was not relevant to Sandoval's textual and structural

analysis of whether § 602 created a similar private

remedy. We therefore conclude that the RLA's text

and structure does not manifest Congress's intent to

create a private enforcement mechanism for all

provisions of the statute.

b. Section 152, First

Our analysis of the four Cort v. Ash factors bolsters

this conclusion. The statutory requirement in § 152,

First that carriers strive to “maintain agreements

concerning rates, rules, and working conditions," may

well benefit individual employees, the first relevant

factor under Cort v. Ash, 422 U.S. at 78. This is not

sufficient, however, to imply a private right of action

because the statutory scheme achieves its purpose by

collectivizing employees’ individual interests. See

NLRB v. Allis-Chalmers Mfg. C 0., 388 U.S. 175, 180,

87 S. Ct. 2001, 18 L. Ed. 2d 1123 (1967) (noting that

‘majority-rule concept is today unquestionably at the

center of our federal labor policy" Gnternal quotation

marks omitted)). Thus, § 152, First is distinguishable

from § 152, Third and Fourth, for which private rights

lla

of action have been recognized, in that the latter

provisions are specifically aimed at preventing

employer interference with individual employees'

ability to join a collective bargaining scheme. With that

interest protected, however, Congress clearly intended

that individual preferences give way to the collective

position embodied by the certified union

representative. It is agreements reached by such

representatives with employers that are the focus of §

152, First. See Virginian Ry. Co. v. Sys. Fed'n No. 40,

300 U.S. 515, 548, 57 S. Cc. 592, 81 L. Ed. 789 (1937)

(observing that § 152, First is concerned with

negotiations between an employer and the "authorized

representative of its employees”).

Indeed, the second Cort v. Ash factor signals that

Congress did not intend to provide a private cause of

action for individual employees in § 152, First. See 422

U.S. at 7&8. Seetion 152, Second states that "[a]}l

disputes between a carrier... and its... employees

shall be considered, and, if possible, decided, with all

expedition, in conference between representatives

designated and authorized so to confer, respectively, by

the carricr...and by the employees thereof interested

in the dispute.” 45 U.S.C. & 152, Second (emphasis

added). Section 152, Fourth explains that the very

‘right to organize and = bargain collectively" is

accomplished ‘through representatives of [the

employees'] own choosing.’ 45 U.S.C. §$ 152, Fourth

(emphasis added). That provision further states that

"[L]he majority of any craft or class of employees shall

have the right to determine who shall be the

representative of the craft or class for the purposes of

this chapter." Id. Taken together, these provisions

leave no doubt that, where, as here, a “craft or class of

l2a

employees" has selected a _ representative union,

Congress intended the power to "make" and the duty to

‘maintain agreements concerning rates of pay, rules,

and working conditions,” id. § 152, First, to run between

the representative union and the company. Indeed, the

Supreme Court has explained that "members [of a craft

or class] cannot bargain individually on behalf of

themselves as to matters which are properly the

subject of collective bargaining." Steele v. Lowisville &

N.J2. Co., 323 U.S. 192, 200, 65 S. Ct. 226, 89 L. Ed. 178

(1944); see also Virginian Ry. Co. v. Sys. Fed'n No. 40,

300 U.S. at 548.

le under the third Cort wv. Ash

factor that it would not be consistent "with the

Relatedly, we conclu

underlying purposes of the legislative scheme" to imply

a private cause of action for employees under § 152,

First. By its terms, § 152, First links its requirement to

make and maintain agreements to the larger RLA

purpose "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, First; see also id. § 15la(1). As deseribed

above, the statute seeks to achieve this goal by vesting

collective bargaining authority in representative

unions. The Supreme Court has explained that, in

enacting the RLA, "Congress has seen fit to clothe the

bargaining representative with powers comparable to

those possessed by a legislative body both to create and

restrict the rights of those whom it represents, but it

has also imposed on the representative a corresponding

duty." Steele v. Lowisville & N.R. Co., 323 U.S. at 202.

As such, the RIA is consistent with a

Isa

[njational labor policy ... built on the premise

that by pooling their economic strength and

acting through a labor organization freely chosen

by the majority, the employees of an appropriate

unit have the most effective means of bargaining

for improvements in wages, hours, and working

conditions. The policy theretore extinguishes the

individual employee's power to order his own

relations with his employer and creates a power

vested in the chosen representative to act in the

interests of all employees.

NLRB wv. Allis-Chalmers Mfg. Co., 388 U.S. at 180. The

union's ability to exercise this vested authority is

protected by the RLA. At the same time, it is the

union's "corresponding duty" to those it represents that

ensures the fair exercise of this authority. Steele wv.

Louisville & N.R. Co., 323 U.S. at 202. It could not be

otherwise in a statutory regime that prioritizes

continuity and "majority-rule" over the "complete

satisfaction of all who are represented.” NLRB v. Allis-

Chalmers Mfg. Co., 388 U.S. at 180.

The facts of this case demonstrate why individual

employee actions under § 152, First would be

inconsistent with a statutory scheme embodying tnese

principles. The Restructuring Participation Agreement,

which plaintiffs complain fails to maintain a 2001

collective bargaining agreement ("CBA"), was agreed to

by APFA on April 8, 2005, and approved by APFA 's

members on April 16, 2003. In that document, "the

parties agree that the 2001 CBA shall remain in full

force and effect except as modified herein." Among the

modifications here at issue was the date for possible

amendment of the CBA, with the union and _ its

Ida

membership agreeing to an extension from November

30, 2004, to April 30, 2009. Following the disclosure of

the Special Executive Retirement Plan on April 17,

2003, the union extracted a concession from American

Airlines on the point, making the 2001 CBA amendable

one year earlier, on April 30, 2008.

However dissatisfied individual employees may be with

these modifications to the 2001 CBA, allowing them to

sue American Airlines under § 152, First to set aside a

Restructuring Participation Agreement agreed to by

their union representative and ratified by the union

membership would risk the very disruption in

commerce that the RLA seeks to avoid. Indeed, under

the agreed-to modifications, American Airlines cannot

simply revert to the original terms of the 2001 CHA.

Plaintiffs’ dispute is thus not with American Airlines,

which could not take the action plaintiffs seek without

violating the modified CBA, but rather with the union,

which negotiated for the modified CBA terms that now

bind American Airlines and that form the basis of

plaintiffs’ claim. A claim of this nature is appropriately

brought against the union for breach of the duty of fair

representation. See NLRB v. Allis-Chalmers Mfg. Co.,

388 U.S. at 181 ("It was because the national labor

policy vested unions with power to order the relations

of employees with their employer that this Court found

it necessary to fashion the duty of fair representation."):

see also infra [25-31] (discussing plaintiffs’ duty of fair

representation claim).

e. Section 152. Seventh

The statutory provision prohibiting carriers from

changing “rates of pay, rules, or working conditions’

lba

except as prescribed by agreement or statute, 45 U.S.C.

§ 152, Seventh, may also benefit employees, but here

too we do not recognize an implied private right of

action by individual employees against an employer.

As the Supreme Court has observed, the purpose of §

152, Seventh is twofold: "it operates to give legal and

binding effect to collective agreements, and it lays

down Che requirement that collective agreements can

be changed only by the statutory precedures." Detroit

& Toledo Shore Line R.R. Co, v. United Transp. Union,

396 U.S. at 156. Thus, § 152, Seventh is a "status quo"

provision, requiring "that parties to a CBA governed by

the RLA maintain objective working conditions during

the pendency of any dispute arising under (or during

the re-negotiation of) their CBA." Jn re Nw. Airlines

Corp., 483 F.3d 160, 167 (2d Cir. 2007). M ore

specifically, in the event of a "major dispute," § 152,

Seventh preserves the status quo while the employer

and the union engage in the negotiation required by 45

U.S.C. §§ 155 and 156. See Consolidated Rail Corp.

Ry. Labor Bvecutives Ass'n, 491 U.S. at 302-08.

Precisely because the statutory scheme as interpreted

by the courts recognizes the representative union as

the proper party to invoke § 152, Seventh, we conclude

that the second and third Cort v. Ash factors weigh

heavily against recognition of a private right of action

by individual employees. See 422 U.S. at 78. The

provision is only implicated where a “craft or class" of

employees has already selected a representative to

bargain collectively on its behalf, 45 U.S.C. § Lodz,

Fourth, and where an employer allernpls to make

changes that affect the employees ‘as a class," § 152,

Seventh. Under those circumstances, an individual

L6a

employee's ‘power to order his own relations with his

employer’ is ‘extinguishe[d]" in) favor of “a power

vested in the chosen representative to act in the

interests of all employees." NLRB v. Allis-Chalmers

Mfy. Co., 388 U.S. at 180.

Because we conde lude that nelt her 8 152, I irst nor S byYA

seventh provides a private cause of action to individual

employees against their employers under the

circumstances presented here, we affirm the district

court's dismissal of these claims and its entry of

judgment in favor of defendant

Plaintiffs assert that the district court erred in

concluding that their state law claims against American

Airlines were preempted by the RLA. See Marcoux +

Lou. Airlines, Tne : I. Supp 2d P2006 U.S. Dist

LEXIS 14130, 2006 WL 842888, at *7. In their reply

brief, plaintiffs clarify that they appeal only the

dismissal of (1) Claim Eleven, in which they charge

APFA with breach of its contractual relationship with

plaintiffs as set forth in the union's constitution and

bylaws; (2) Claim Twelve, in which they charge

American Airlines with intentional interference with

the contractual relationship between APFA and its

members; and (8) Claim Sixteen, in which plaintiffs

charge American Airlines with intentionally causing

APFA to breach certain provisions of its constitution

and bylaws relating to balloting and electioneering

practices. Accordingly, we limit our discussion to those

claims. See Maloney Cuomo. 554 F.3d 56. 58 n.2 (2d

Cir. 2009) (noting that claims not pursued on appeal are

deemed walved Like the d L} { url, We conclude

that these claims are preempted vv the RIA ire Ve

therefore affirm thei dismissal

lL. Preemption in Labor Cases Generally

The Supreme Court established the basic tenet

federal preemption in the labor context in San Diego

building Trades Council v. Garnion, 359 U.S. 236. 79S

Ct. 775, 3 L. Ed. 2d 775 (1959). In Garmon, the Court

considered whether California could provide damage

under state law to an employer based on employee

picketing, which the California Supreme Court

determined was an uniair trade practice. see id. al 258

YY. The employer had begun a simultanecou proceed n¢

before the National Labor Relations Board ("NLRB

ver which the Remonal Director had declined

exercise jurisdiction "presumably because the amount

if interstate commerce involved did not meet the

Boards monetary standards in taking jurisdicti f

UL ides

the Cou dentihied lt L( enh »>Whic!

the variegated laws of the several States are displace

r\ ct single, uniform, national ruie, namel the

National Labor Relations Act. /d. at 241. The | rt

oncluded as follow

When it clear oO la ur’ Ime ha

mar IVILIe vhich a State puUrpor > rev

are protected by i otf the National Labo

Relations A ct, or constitute an unfair labo:

practice under $ &, due reyvard for the feder:

enactment requires that state Juri diction must

yield. To leave the State free to regulate

conduct so plainly within the central aim «

federal revulation Involve , y mpreat lange) yf

lSa

conflict between power asserted by Congress

and requirements imposed by stare law

Id. at 244 Stated differently, ‘[tj]he governing

consideration is that to allow the States to control

ictivities that are potentially subject to federal!

regulation involves too great a danger of conflict with

national labor policy." /d. at 246. This principle, the

Court explained, apples regardless of whether the

state law at issue was "tort law of general application

lor] specialized labor relations statutes." /d. at 244 n.3

Iinally, the Court explained that, even if application of

state law in a particular situation would not, in fact,

conflict with "the active assertion of federal authority,’

it would nevertheless involve| | a conflict with federal!

policy in that it involves allowing two law-making

‘)

sources to vovern ld al 247

The Garmon rule is subject to two exceptions. First

States retain power to regulate activity that is ‘a

merely peripheral concern of the Labor Management

Relations Act.” /d. at 243. Second, federal labor law

does not preempt state law where “the regulated

conduct touched interests so deeply rooted in local

feeline and responsibility that, in the absence of

compelling congressional direction, [the Court] could

not infer that Congress had deprived the States of the

power to act.” /d. at 244. As an example of the second

exception, the Court pointed to states’ continued ability

to regulate ‘violence and imminent threats to the publi

order." Jd. at 247.

Preemption in RILA Cases

19a

Although Garmon was decided in the context of the

National Labor Relations Act, similar reasoning

animated the Supreme Court's application of

preemption to the Railway Labor Act in brotherhood of

Railroad Tra unmen v. Jacksonville Terminal Co., 394

U.S. 369, 89 S. Ct. 1109, 22 L. Ed. 2d 344 (1969); see,

e.g., Bensel v. Allied Pilots Ass'n, 387 F.3d at 321

(suggesting that Garmon was "extended" to the RLA in

Jacksonville Terminal). In Jacksonville Terminal, the

Court considered whether, in the context of a "major"

labor dispute governed by the RLA, a Florida court

had the authority to enjoin the picketing of a freight

rail terminal facility under state tort and labor laws.

394 U.S. at 372-77. The Court concluded that it cid not

because "the exercise of plenary state authority to

curtail or entirely probit self-help would frustrate

effective implementation of the |RLA's] processes." Id.

at 380. The Court reached this conclusion even wile

acknowledging that, unlike the situation presented in

(;armon, in a major dispute under the RLA there is "ao

administrative agency equivalent to the NLRB with

jurisdiction over railway labor disputes." /d. at 384 n.19.

In the years since Jacksonville Terminal and Garmon

were decided, this and other circuits have applied their

reasoning to major RLA disputes, see, e.g., Bensel v.

Allied Pilots Ass'n, 887 F.8d at 320-23 (applying

Garmon and Jacksonville Terminal to RLA major

dispute and affirming dismissal of, inter alia, tortious

and malicious interference, fraudulent

misrepresentation, and breach of contract claims); to

a RLA an ag sec, e.g., Beers v.S.Pac. Transp.

'o., 708 F.2d 425, 428-29 (9th Cir. 1983) (holding that

aaa infliction of emotional distress claim brought

in context of "mmor" RLA dispute was preempted

20a

under Garmon); and to RLA_ issues, like’ those

presented here, not falling squarely within either

category, see, e.g., Kaufman v. Allied Pilots Ass'n, 274

F.3d 197, 202-03 (5th Cir. 2001) (applying Garmon to

hold third-party tortious interference claim preempted

by RLA); Air Transp. Ass'n of Am. v. City & County of

San Francisco, 266 F.3d 1064, 1076 (9th Cir. 2001)

(noting that "[s]tate laws that frustrate the purpose of

the RLA are preempted"); Peterson v. Air Line Pilots

Ass'n, Int'l, 759 F.2d 1161, 1170-71 (4th Cir. 1985)

(holding that RLA preempts state law claim for

wrongful discharge even where RLA arbitral

mechanism not implicated because "state claims seek to

vindicate rights largely secured by federal law"); cf.

Delta Air Lines v. Kramarsky, 650 F.2d 1287, 1301-02

(2d Cir. 1981) (applying Garmon analysis to claim that

New York Disability Benefits Law ("DBL") was

preempted by RLA, and holding that because DBL

"voverns matters outside the intended reach of the

RLA ... the RLA therefore does not preempt the

DBL"), vacated in part on different grounds on

rehearing by 666 F.2d 21, 26 (2d Cir. 1981), affirmed in

part and vacated in part on other grounds by Shaw v.

Delta Air Lines, Inc., 463 U.S. 85, 92 n.8, 103 S. Ct.

2890, 77 L. Ed. 2d 490 (1983) (noting that Second

Circuit resolved RLA preemption claim against Delta,

but that claim was not before Supreme Court).

Contrary to plaintiffs’ assertion, these cases

demonstrate that the principles animating Garmon,

Jacksonville Terminal, and their progeny = are

applicable to plaintiffs’ state law claims. Underlying

these principles is a concern with whether the

particular state law at issue may "stand[] as an obstacle

to the accomplishment and execution of the full

Zla

purposes and objectives of Congress." Hines v.

Davidowitz, 312 U.S. 52, 67, 61S. Ct. 399, 85 L. Ed. 581

(1941). Accordingly, courts have invoked Garmon to

preempt certain state law causes of action even where

the RLA claim at issue is not subject to the exclusive

primary jurisdiction of the National Railroad

Adjustment Board ("NRA B"). See 45 U.S.C. § 158;

Pennsylvania R.R. Co. v. Day, 360 U.S. 548, 552, 79'S.

Ct. 1522, 3 L. Ed. 2d 1422 (1959) (discussing exclusive

primary jurisdiction of NRAB over minor RLA

disputes). Similarly, courts have applied Jacksonville

Terminal to preempt more than just those state law

claims that attempt "to regulate economic wartare

between disputants subject to the [RLA's] processes."

See Brotherhood of R.R. Trainmen v. Jacksoniille

Terminal Co., 394 U.S. at 380. Although expansive

views of the preemption doctrine have not escaped

criticism, see Wyeth v. Levine, 1298. Ct. 1187, 1211, 175

L. Ed. 2d 51 (2009) (Thomas, J., concurring), we need

not here reach the outer boundaries of the doctrine to

conclude that the maintenance of plaintiffs’ state tort

claims “would frustrate effective implementation of the

[RLA's] processes." Brotherhood of R.I. Trainmen v.

Jacksonville Terminal Co., 394 U.S. at 380.

3. Claims Eleven, Twelve, and Sixteen Are Preempted

by the RLA

Claims ‘Twelve and Sixteen allege that actions of

American Airlines in negotiating the Restructuring

Participation Agreement caused APFA to breach its

contractual duties to its members, see Compl. 44 304-

07, 325-35, while Claim Eleven alleges that APFA

breached its contract with its members in the course of

negotiating and ratifying the Restructuring

QO.

Participation Agreement, see id. 9 § 299-303. These

claims are akin to those discussed by the Third Circuit

in Bensel v. Allied Pilots’ Association:

[AJll involve’ alleged interference — with

| plaintiffs'| employment rights as established by

the various agreements that govern their wages

and other benefits as well as their right to be

fairly represented under [§ 152]. Thus the

rights at issue are founded upon federal law,

derive their strength and protection trom federal

law, and exist to effectuate a nationwide federal

labor policy.

337 F.3d at 321. Such claims must rise or fall based on

their merit under the RLA

Parties whose conduct is governed by the RLA

approach collective bargaining negotiations mindful of

the incentives and penalties set forth in the Act. As in

Jacksonville Terminal, the imposition of additional state

regulation on core RLA conduct would er the

balance struck by Congress in this regard. See 394 U.S.

at 381. "|Tlhe 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's RILA goals. Id. (internal citations

omitted). This task "'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

thor gh in furtherance of the federal scheme. The needs

of the subject matter manifestly call for uniformity." Id.

(quoting International Ass'n Of Wachinists AFL-CTO

v. Cent. Airlines, Inc., 372 U.S. 682, 691-92. 83S. ¢

956, 10 L. Ed. 2d 67 (1963)). We easily conclude that the

Zod

imposition of additional state lability on the defendants

for conduct during collective bargaining negotiations

would upset the "balance of power" established by the

RLA, Golden State Transit Corp. i). City of Los

Angeles, 475 U.S. 608, 619, 106 S. Ct. 1395, 89 L. Ed. 2d

616 (1986), and "frustrate effective implementation ol

the [Act S| processes, Brotherhood of R.R. T'rarnme i a B,

Jacksonville Terminal Co., 394 U.S. at 380.

Plaintiffs submit that there is, in fact, "no conflict

between their state common law claims and the RLA.

Appellants’ Br. at 37. The point requires little

discussion. In Garmon, the Supreme Court observed

that, even if application of state law "in a particular

situation will not, in fact, conflict with the active

assertion of federal authority,” the state claim is

nevertheless preempted because "two law-making

sources’ may not govern labor policy. San Diego Bldg.

Trades Council, Millmen's Union, Local 2020

Garmon, 359 U.S. at 247. Similarly, in Jacksonville

Terminal, the Court held the state regulation

preempted not because it actually conflicted with the

RLA, but because of the "potentials for conflict" that

would arise if each state were entitled to set its own

standard. 394 U.S. at 381. In sum, actual conflict 1s not a

prerequisite to finding a state claim preempted by the

RLA.

Plaintiffs have failed to offer any compelling argument

as to why their state law claims are not governed by

the well-settled line of precedents deriving from

Garmon and Jacksonville Terminal.‘ Nor have plaintiffs

a.tempted to demonstrate that either of the exceptions

recognized in Garmon applies to their claims.

Accordingly, we conclude that the district court

24a

correctly dismissed Courts Eleven, Twelve, and

Sixteen as preempted by the P.LA.*

I). Plaintiffs’ Claim of a Breach of the Duty of Fair

Representation

Plaintiffs submit that the district court erred in

granting summary judgment in favor of APFA on the

claim of a breach of the union's duty of fair

representation. We disagree.

1. The Duty of Fair Representation Under the RLA

"The statutory duty of fair representation was

developed [in the 1940s} in a series of cases involving

alleged racial discrimination by unions certified as

exclusive bargaining representatives under the

Railway Labor Act." Vaca v. Stipes, 386 U.S. 171, 177, 87

S. Ct. 903, 17 L. Ed. 2d 842 (1967). In these cases, the

Supreme Court ruled that "the exclusive agent's

statutory authority to represent all members of a

designated unit includes a statutory obligation to serve

the interests of all members without hostility or

discrimination toward any, to exercise its discretion

with complete good faith and honesty, and to avoid

arbitrary conduct." Id.; see Ramey v. Dist. 141, Int'l

Ass'n of Machinists & Aerospace Workers, 378 F.8d

269, 276 -77 (2d Cir. 2004). This "tripartite standard!’

applies to "challenges leveled not only at a union's

contract administration and enforcement efforts but at

its negotiation activities as well,” Le., to both "major"

and "minor" disputes under the RLA. Air Line Pilots

Ass'n, Int'l v. O'Neill, 499 U.S. 65, 77, 111 S. Ct. 1127,

118 L. Ed. 2d 51 (1991) (quoting Communication,

Workers v. Beck, 487 U.S. 735, 743, 108 S. Ct. 2641, 101

L. Ed. 2d 634 (1988)).!

The Supreme Court has emphasized that a court's

‘substantive examination of a union's performance [is]

highly deferential, recognizing the wide latitude that

negotiators need for the effective performance of their

bargaining responsibilities." Air Line Pilots Ass'n, Int'l

v. O'Neill, 499 U.S. at 78. "For that reason, the final

product of the bargaining process may constitute

evidence of a breach of duty only if it can be fairly as so

far outside a wide range of reasonableness that it is

wholly irrational or arbitrary." Id. (internal citation and

quotation marks omitted). The rationality of a union's

decision must be evaluated "in hight of both the facts

and the legal climate that confronted the negotiators at

the time the decision was made." Id. ‘lo demonstrate

“bad faith" representation by a union, a party must

show "improper intent, purpose, or motive.” Spellacy v.

Airline Pilots Ass'n-Int'l, 156 F.3d 120, 126 (2d Cir.

1998) (observing that "[bJad faith encompasses fraud,

dishonesty, and other intentionally misleading

conduct"). Even if a party makes such a showing, it

must further demonstrate a causal connection between

the union's misconduct and the complained-of injury. Jd.

2. Plaintiffs’ Failure To Adduce Evidence of Irrational]

or Arbitrary Conduct

Plaintiffs point to numerous decisions taken by APFA

In its negotiations with American Airlines that they

submit raise triable issues of fact as to the irrationality

and arbitrariness of the union's representation. See

Red. R. Civ. P. 56(c). We consider each in turn and

conclude that plaintiffs’ argument is without merit

26a

At the outset, we note that the record is replete with

evidence that American Airlines was, in fact, in clire

economic straits at the time the parties entered into the

negotiations that led to the Restructuring Participation

Agreement. For example, American Airlines had a net

loss of $ 3.5 billion in 2002, and by 2003 the airline was

experiencing cash losses of approximately $ 5 million

per day. Further, two of American Airlines’ primary

competitors, US Airways and United Airlines, had filed

for bankruptcy protection in August 2002 and

December 2002, respectively. These circumstances

preclude any reasonable factfinder from concluding that

APFA entered into the challenged negotiations with

American Airlines irrationally, arbitrarily, or in bad

faith.

Nor will the evidence admit an_ inference of

arbitrariness or bad faith in the voting provedures used

by APFA in seeking membership ratification of the

Restructuring Participation Agreement. Plaintiffs take

issue with the union's use of a telephonic balloting

service provided by American Airlines rather than

mail-in balloting, and with the use of a password

supplied by American Airlines to monitor such

balloting. Given the time-sensitive nature of the

circumstances, APF'A's reliance on telephonic balloting

and (ts monitoring of the vote through a website

established by American Airlines 1s insufficient, by

itself, to permit a finding of bad faith.

Plaintitfs suggest that a jury could infer APF A's bad

faith from its agreement to a ratification voting

deadline of April 15, 2008, two days before American

Airlines filed its 1OK ftorm revealing the terms of a

Special Executive Retirement Plan. Plaintiffs failed,

2fa

however, to adduce any admissible evidence supporting

their conclusory assertion that APF A officials knew of

the retirement plan when they agreed to the voting

schedule. Indeed, plaintiffs do not address testimonial

evidence that APFA officials did not have any notice of

the retirement plan until its public disclosure on April

17. This record is insufficient to demonstrate a genuine

dispute of material fact warranting trial. See Fed. R.

Civ. P. 56(¢).

Plaintiffs further submit that APFA's decisions to

extend the voting deadline to April 16 and to permit

members to change votes were taken in bad faith. Once

again, plaintiffs make a bald assertion -- that "the

principal, or sole, reason APF A did so was to reverse

the [initial negative] outcome,” Appellants' Br. at 42 --

without pointing to any supporting admissible evidence.

In fact, the record evidence demonstrates that APFA

sought an extension through the end of April to provide

iis members with more time to consider the terms of

the Restructuring Participation Agreement and to

accommodate certain members who had had trouble

easting votes. It was American Airlines that refused to

agree to such an extension and, on April 15, offered the

alternative of one further day of voting. There is no

record evidence that would permit a ftactfinder to

identify bad faith in APF A's acceptance of the one-day

extension. See generally Parker v. Connors Steel Co.,

855 F.2d 1510, 1521 (11th Cir. 1988) (finding no breach

of the duty of fair representation where union urged

ratification of collective bargaining agreement because

it accurately reflected its negotiation efforts with the

Company and the economic crisis in the steel industry’).

Like the distmet court, we also identify no record

28a

support for plaintiffs’ claim that APFA acted

arbitrarily or in bad faith in finalizing the April 25, 2005

acceptance of a modified Restructuring Participation

Agreement. Following disclosure of the Special

Executive Retirement Plan, on April 22, 2003, APFA

determined that the Restructuring Participation

Agreement was no longer valid and would have to be

put to a re-vote. The next day, a _ four-person

congressional delegation met wilh Various American

Airlines officials, including CEO Donald Carty, APFA

head John Ward, and the heads of two other unions that

had ratified the Restructuring [Participation

Agreement. As a result of those discussions, American

Airlines unilaterally acceded to several APFA

demands, including a one-year reduction in the duration

of the Restructuring Participation Agreement, an

option for the union to reopen that Agreement after

three years, and an "Annual Incentive Program."

Plaintiffs do not dispute that these concessions

benefitted APFA members. As a result of these

discussions, American Airlines CHO Carty also

resigned.

APFA leaders met with the new American Airlines

CEO, Gerard Arpey, on April 24, 2008. The union

requested that the airline defer filing for bankruptcy

until after the re-vote, and it sought an additional

amendment to the "“underfly" provision of the

Restructuring Participation Agreement. American

Airlines agreed to remove the “underfly" provision and

to substitute a different concession of equal value in its

place, but it informed APF'A that, if it did not finalize

the Restructuring Participation Agreement by April

25, the airline would declare bankruptcy. The APFA

Board of Directors considered this proposal and, on

ova

April 25, finalized the agreement. This record provides

no support for plaintiffs' assertion that APF A's actions

were "so far outside a wide range of reasonableness" as

to be irrational. Air Line Pilots Ass'n, Int'l v. O'Neill,

499 U.S. at 78 Ginternal quotation marks omitted).

Accordingly, we conclude that summary judgment was

appropriately entered in favor of APFA on plaintiffs’

claim of breach of the duty of fair representation.

IIL. Conclusion

To summarize, we conclude as follows:

1. Plaintiffs’ RLA claims against American Airlines

pursuant to 45 U.S.C. § 152, First and Seventh were

properly dismissed because those provisions donot

provide a private cause of action for an employee

against an employer.

2. Plaintiffs' state law claims against American Airlines

and APFA for breach of contract and intentional

interference with contract were properly dismissed

because these state law claims are preempted by the

RLA.

4. Summary judgment was properly entered in favor of

APFA on plaintifts' claim of breach of the duty of fair

representation because plaintiffs failed to adduce

evidence raising a colorable question of fact on the issue

of whether APF‘A's actions were so far outside a wide

range of reasonableness as to be wholly irrational,

arbitrary, or undertaken in bad faith.

30a

Accordingly, the judgment of the district court in favor

of defendants is A KkI RMED

kootnotes

‘Judge Joseph F. Bianco, of the United States District

Court for the Eastern District of New York, sitting by

designation.

ISection 152, Fourth instructs that an employer may

not "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." 45 U.S.C. § 152,

Fourth. Section 152, Third instructs that neither labor

nor management may “interfere with, influence, or

coerce the other [party] in its choice of representative."

45 U.S.C. § 152, Third

2ZS8ection 152, Second instructs that all disputes

between a carrier and its employees "shall be

considered, and, if possible, decided aie in a conterence

between [designated | representatives.” 45 U.S.C. § 152.

Second. Section 152, Ninth instructs the Mediation

Board to resolve disputes "as to who are the

{designated ] representatives." 45 U.S.C. § 152, Ninth.

4We have expressed some doubt about whether, in

light of more recent cases, we may still imply a private

right of action hased on the Cort v. Ash factors. See

Hallwood Realty Partners, L.P. v. Gotham Partners,

L,.P., 286 F.3d 618, 619 (2d Cir. 2002) (noting that, after

Cort v. Ash, the Supreme Court "focused the analysis

on the single question of whether congressional intent

Lu creale a private cause of action can be found in the

relevant statute"); Olmsted v. Pruco Life Ins. Co. of

N_J., 283 F.8d 429, 484 (2d Cir. 2002) (noting that recent

Supreme Court decisions have ‘subordinat[ed the Cort

v. Ash factors] to statutory text"). Sandoval, however,

does not purport to overrule Cort v. Ash. Accordingly,

we apply these factors to illuminate our analysis of

congressional intent.

iWe discuss plaintiffs’ claim against APFA for breach

of the duty of fair representation infra at [25-51].

SThe RLA provides for criminal enforcement of § 152,

Third, Fourth, Fifth, Seventh, and Eighth -- not § 152,

First. See 45 17.S.C. 8 152. Tenth

6We note, with respect to plaintiffs’ breach claim

ayainst APFA, that plaintiffs have alleged no

independent duty owed them individually under the

contract. See United Steelworkers O} Am. v. Rawson,

195 U.S. 362, 374, 110 S. Ct. 1904, 109 L. led. 2d 862

(1990) (‘If an employee claims that a union owes him a

more far-reaching duty [than the duty of fair

representation], he must be able to point to language in

the collective-baryuining uvreement specifically

indiculing an intent to create obligations enforceable

against the union by the individual employees.'); see

also May wv. Shuttle, Tne. 129 F.8d 165, 179, B27 US

App. D.C. &2 (D.C. Cir. 1997) (holding RLA duty of fair

representation claim preempts ‘identical Stule lav

claims otf traud and deceit); Nellis +. Air Line Pilot

Ass'n, 10 I'.3d 50, 51 (4th Cir. 1994) (same); Petersor

Air Line Pilots Ass'n, Intl, 759 F.2d 1161, 1170 (4th

(oir LUSDS (notLing that state law tort claims were

} . .

essentially identical’ to duty of fair representatio1

‘yey

claim ind = therefore dismissing ‘tate claims a

preempted by RLA)

7Plaintiffs cite several non-RLA cases to support then

contrary argument, none of which is relevant to our

U.S. 51. 68, 123 S. Ct. 518, 154 L. Ed. 2d 466 (2002)

(construing the express preemption clause of the

Federal Boat Safety Act of 1971 and concluding that 11

does not preempt common law claims); Medtronic, Liu

Lohr, 518 U.S. 470, 495, 116 S. Ct. 2240, 135 L. Ed. 2d

700 =(1996) (eonstruing the express preemption

provision of the Medical Device Amendments of 1976);

Brg igh tline r ( orp ) Myrick, 514 U.S. 280, 289. llos

Cr. 1483, 131 L. Ed. 2d 385 (1995) (construing

preemption provision of National Traffic and Motor

Vehicle Safety Act of 1966 and concluding that it did

not preempt common law claim on issue for which

ederal law provided no standard)

SPlaintiffs also argue that the district court erred in

concluding that the APFA constitution is nol

enforceable as a contract. The court held no such thing

Indeed, the court had ho need LO determine whether

the constitution was enforceable as a contract because

dismissed the contract claim on a different yvround,

e., that "[t}he allegations underlying plaintilfs’ clan

for "breach of the union constitution’ are, in substance

identical to those in plaintiffs’ DFR [duty of fan

representation] claims" and are therefore preempted b)

the RLA. Marcouwe vo. Am. Airlines, Ine., F.Supp. 2d

2008 U.S. Dist. LEXIS 557451. ZOOS WIL 2828509, at

26. Because we affirm on that same ground, we need

ara ress the eEeNnToree ability Sle

DOA

9The district court properly identified this tripartite

standard and fairly applied it in thoroughly reviewing

the evidence relevant to plaintiffs’ fair representation

claim. See Marcoux v. Am. Airlines, Inc., 2008 US.

Dist. LEXIS 55751, 2008 WL 2828599, at *22-26. Thus,

there is no merit to plaintiffs’ argument that the award

of summary judgment on this claim was infected by

application of an incorrect legal standard. In any event,

we review the challenged judgment de novo and

conclude for ourselves that judgment was_ properly

entered in favor of API°A.

34a

04 CV 1376 (NG) KAM),03 CV 4987 (NG) KAM),04 CV

634 (NG) KAM)

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT

CF NEW YORK

ANNE M. MARCOUX, JILL LINDSAY, KIRSTEN

EVANS, CONSTANCE LaMATTINA, ELIZABETH

LEE PRICE, JUDITH ALEXANDER, DEBORAH

DEAN, CHRISTINA FORD, PATTI GENTRY,

LaTONYA K. GILLMORE, JANET GOLD, DALE

HAGAR, JULIE HORAN, LOUIS HORTER,

CAROL JOHNSON, MOLLY KAIMAN,

BEVERLEY KALKHOPF, NANCYANNE KELLO,

PATRICIA KENNEDY, JANET KIRBY, JOHN

KLINE, DOTTIE LONG, KAREN RIVOIRA,

LAURENCE E. SALOMON III], DANIEL

SANTIAGO, REBECCA SMITH, and DEBORAH

WHITTINGTON on Behalf of themselves and all

others similarly situated (i.e., the "Class");

CONSTANCE LaMATTINA also on behalf of Subclass

I, KIRSTEN EVANS, JILL LINDSAY and

ELIZABETH LEE PRICE also on Behalf of Subclass

Il; DEBORAH WHITTINGTON also on Behalf of

Subclass [I], and JANET KIRBY also on Behalf of

Subclass EV,

Plaintiffs,

-against-

AMERICAN AIRLINES, INC., A.M.R.

CORPORATION, ASSOCIATION OF

PROFESSIONAL FLIGHT ATTENDANTS, and

JOHN WARD, as President of Association of

Protessional Flight Attendants,

2) oe

are re |

Defendants.

July 22, 2008, Decided

July 22, 2008, Filed

OPINION AND ORDER

GERSHON, United States District Judge:

Plaintiffs bring this action against Defendants

American Airlines, Inc. ("American," or the "Company’"),

A.M.R. Corporation ("AMR" or, together with

American, the "Company Defendants"), the Association

of Professional Flight Attendants ("APFA" cr the

"Union"), and John Ward, in his capacity as President of

APFA ('Ward," also included in "“APFA" or the

“Union"). In light of this court's previous Order, see

Mareoux v. Am. Airlines, Inc., 2006 U.S. Dist. LEXIS

14150 (i2.D.N.Y. March 238, 2006), remaining against

Company Defendants are hybrid claims for breach of

the duty of fair representation ("DFR") and violations

of the Railway Labor Act ("RLA"), 45 U.S.C. $8151 ef

seq.; remaining against APF'A are claims for breach of

the DFR and breach of the APF’ A constitution.

All defendants move for summary judgment dismissing

the remaining claims. Plaintiffs move for class

certification and for summary judgment on all claims

except the claim against APF A for breach of the APF A

constitution. For the reasons set forth below, the

motions for summary judgment filed by Company

Defendants and APFA are granted in their entirety;

plaintiffs’ motion for summary judgment is denied, and

their motion for class certification is denied as moot.

26a

FACTS

Linless otherwise indicated, the facts set forth below

are undisputed. American is a "carrier by air" within

the meaning of the RLA, 45 U.S.C. § 181. AMR is the

publicly-traded parent company of American. At all

pertinent times, APFA was the certified and exclusive

representative of the class of flight attendants

employed by American and is a “labor organization"

within the meaning of the RLA. Ward served as

President of APFA from April 2000 through August

2004. At al! pertinent times, plaintiffs were members of

APF A.

I. The 2001 Collective Bargaining Agreement and

Events Leading to Negotiation of the Restructuring

Participation Agreement

A. Collective Bargaining Between APFA and

American Between 1998 and 2001

Between 1998 and 2001, APFA and American engaged

in Section 6 negotiations under RLA, 45 U.S.C. § 156. °

In June 2001, om the lust day of the "cooling-off' period,

APF'A and American reached a tentative agreement on

the terms of a new Collective Bargaining Agreement

(the "2001 CBA" *). The tentative agreement provided

"industry-leading wages' and working conditions and

was ratified by a 96% affirmative vote of the APFA

membership, tabulated on September 12, 2001. The

CBA was to continue until becoming “amendable’ on

November 30, 2004. * Early in 2001, as part of what

would come to be known as the "turnaround plan,’

American responded to financial difficulties by altering

ola

its business plan to remain competitive with low-cost

carriers.

B. September 11, 2001

As a result of the terrorist attacks of September 11,

2001, the major airlines suffered billions of dollars of

losses. American's net loss in 2002 was $ 3.5 billion and

it projected an additional loss of $ 1 billion in the first

quarter of 2003.

Thus, in 2002, after comparing its labor costs to those of

its competitors, American developed a_ cost-cutting

strategy relating to its’ pilots, mechanics, flight

attendants, and other non-labor sources. American

decided it needed to cut labor costs associated with the

flight attendant group by $ 340 million annually to

remain competitive. It also identified $ 2 billion in

annual cost reductions that could be obtained through

sourees other than labor. Notwithstanding these cost-

cutting plans, American, during this period, funded a

retirement plan providing —bankruptcy-protected

pension benefits to senior officers. See below Facts §

IV.

By letter dated December 6, 2002 from American's

then-CEO, Don Carty ("Carty"), and its then-President,

Gerard Arpey ("Arpey"}, American requested that

APFA, as well asthe Allied Pilots Association ("APA"),

and the Transport Workers Union ("TWU"), the

bargaining representative for the Company's mechanics

and other ground employees, agree to forgo two

upcoming compensation increases provided under the

2001 CBA, namely, a 3% pay increase scheduled to take

effect January 1, 2003, and a further increase scheduled

Joa

to take effect in July 2008. American recognized at the

time that, even if AFFA agreed to the requested

concessions, American's ecenomic turnaround would

not be complete. American stated that the concessions

were non-negotiable.

In response to American's December 2002 request to

forgo pay increases, APFA informed the Company that

it would conduct a detailed review of the Company's

finances to determine if there was a legitimate need for

the relief American sought. APF A retained Mark King

as a financial advisor to assist with its review of

American's finances. King had assisted the APFA

Negotiating Committee in the negotiations that led to

the 2001 CBA. By January 1, 2003, however, APF A's

financial review had not yet concluded, and the

Company implemented the 3% pay increase as required

under the 2001 CBA.

C. American's Requests for Labor Concessions and

APFA's Initial Response

The Company's financial condition declined in the first

quarter of 2005 to a greater extent than previously

projected. American was losing cash from operations at

the rate of approximately $5 million per day -- nearly $

7.5 million per day if capital expenditures and deht

service were included, and between $ 14 and $ 21

million per day 1f pension contributions were included.

In early February 2003, the Company made additional

demanas for cost-saving contractual concessions from

each of its unions, including APFA. Specifically, it

demanded $ 1.6 billion in annual "permanent" labor cost

reductions, 1.e., cost savings of $ 1.6 billion per year on

an ongoing basis, from APF'A, the APA, and TWU. Of

39a

this amount, the Company indicated that $ 340 million

annually would be required from the flight attendant

workforce.

Soon after APFA received American's February 2003

demand for concessions, Ward convened a meeting of

the APFA Board of Directors ("BOD") on February 11-

12, 2003. ' The BOD "received a thorough briefing and

analysis from [its]... advisors and a presentation from

the APFA Negotiating Committee." Ward Dep. 257-58.

On February 12, 2008, the BOD adopted a resolution

stating that

APFA is committed to the survival of the

Company and recognizes the importance to the

membership of taking appropriate steps to

ensure that the Company is a_ viable’ and

successful entity which, at the same _ time,

respects the needs and legitimate rights and

expectations of its employees and specifically of

the American... flight attendants.

It turther provided for ‘a comprehensive, multi-faceted

plan of action" designed to continue APF A's financial

analysis of the Company and prepare for concessionary

negotiations that might ensue. The BOD directed "the

Negotiating Committee, under the direction of the

APF A President, ... to take all necessary action . . . to

be able to expeditiously address varying contingencies."

ld. The BOLD ; "overriding obligation was to... best

protect the interests of the Flight Attendants."

President's Report, Ward Ex. 10.

D. Risk of Bankruptcy

40a

In late February or early March 2003, American CEO

Carty informed APF A, at a special APFA BOD

meeting, that American would file for bankruptcy

protection unless it obtained an agreement from APF A

by March 31, 2003 that provided the $ 340 million in

annual cost reductions that American was demanding.

American set the same deadline for APA and TWU to

reach agreements, in the absence of which the

Company would file for bankruptcy.

The APFA BOD met again in the second week of

March 2003. At that meeting, it adopted a Resolution

dated March 10, 2008 stating, "the best interests of the

membership will be served by taking all appropriate

action to expeditiously address the Company's financial

situation,’ and directing APF'A President Ward and the

APFA negotiating team and advisors "to take any and

all actions needed to reach a negotiated consensual

agreement with American .. . in order to avoid

bankruptcy." The BOD adopted this Resolution after

receiving "presentations regarding the Company's

financial situation and the time constraints from

APFA's outside economic consultant, . . . APFA's

Standing Negotiating Team," and "representatives of

TWU, APA and American Airlines concerning the

validity of the [Company's] request [for concessions] . . .

To assist APFA in its dealings with American, APFA

retained, in addition to King, Leon Potok (another

financial advisor), to further assess the Company's

financial situation. APFA's advisors reviewed publicly

available information and information provided by the

Company, consulted with advisors retained by APA

and TWU, and conferred with APFA's Negotiating

41a

Team, the LJnion's Officers, and () ompany

representatives. American "made its financial plans and

backup information available to |APFA] and to [its]

financial advisors... toa far greater extent than it ever

had done before." President's Report, Ward Ex. 10.

On February 11, 20083, King advised the APFA

negotiating team in a power point presentation that the

relief APFA should grant the company should be of a

short-term nature because American faced a short-term

cash problem. He further advised APFA that, because

American was forecasting improvement, "il would be

desirable to wait until May or June to determine

whether cash relief is needed." King Dep. 65-66.

However, in March 2008, King revised earlier

evaluations and concluded that American's financial

situation was deteriorating faster than he had

previously believed, although he "never completely

agreed with the company's position that it was

deteriorating as quickly as it said it was." Jd. at 144-45.

Potok reached the conclusion that American's requests

for financial concessions were warranted. At his

deposition, he explained his conclusion:

The company had lost significant amount of

money, it was projecting to lose a significant

amount of money, it was not simply a cyclical

problem they were facing, it was structural, they

had to address, as did the other main line

airlines, and in the absence of fixing their

problems no prudent management or board

would continue coasting along throwing money

out the windows.

424

Potok Dep. 212-18. He reealled that, in March of 2008,

he advised APFA with regard to whether the

management of American had a hasis for seeking

Chapter 11 bankruptcy protection:

‘The company was seeking to get cost reductions

in a time when it was in a negative cash flow,

projected negative cash flow situation. And in

the absence of such cost savings and in the

absence of a deal with labor, it was reasonable to

expect that the company would file for Chapter

11.

Id. at 37. Based on the analysis and presentation of

APFA's | financial advisors, APFA's _ leadership

concluded that American's threats to file’ for

bankruptcy in the absence of concessions were serious.

II. March 2003 APF A-American Discussions Lead to

a Tentative Agreement

A. The APF A-American Discussions

In March 2003, American advised APFA that, if the

Company filed for bankruptcy, it intended to reduce its

aircraft fleet by 85 to 90 planes, with the consequence

that at least 2,500 flight attendants would be

furloughed over and above the furloughs that would

result from implementation of the $ 340 million

concessionary agreement. Also, in bankruptcy,

American would seek at least an additional $ 180 million

a year in cuts above the concessions it was seeking out

of bankruptcy and lay off substantially more employees.

These additional concessions would have been required

to offset the substantial costs associated with

doa

bankruptey. The Company communicated — both

privately and publicly to the three unions that it was

prepared to file for bankruptcy on March 31, 2008,

During these discussions, neither side served the other

With a Section 6 notice or said it was proceeding under

Section 6 of the RLA. Both sides recognized that the

changes to the CBA sought by American were

substantial.

To provide information to fight attendants regarding

the negotiation process, Ward recorded a telephone

hotline message accessible to union members. He stated

that APFA was willing to make concessions because,

"as dreadful as the Restructuring Agreement is, the

Company's bankruptcy proposal -- that is what they

would seek to achieve in bankruptcy from the court -- Is

far worse.” APFA Hotline Message, April 4, 2003.

Also during this period, APFA issued an update to

membership stating:

The three labor unions, alter exhaustive

research by each union's economic advisors, have

determined that |American|] is in serous

financial trouble, This situation is deteriorating

rapidly...

The APFA Negotiating Table Team .. . [is]

working tirelessly Lo come up with a consensual

tentative agreement on a concessionary package.

How much this package will be worth (as

compared to the Company's $ 3840 million

request) has not yet been agreed to by the

parties, However, |American] indicates it neecs

the full amount to avoid a bankruptcy filing. ...

If... a package is concluded then it will then be

submitted to the membership for a ratification

vote, . . . If any single group rejects their

respective package, the Company represents

that it will likely be filing for bankruptcy.

The APFA_ Leadership believes avoiding

bankruptcy is in our membership's best interest.

Bankrupt airlines often shrink operations,

furlough employees and use the bankruptcy laws

to abrogate parts of union contracts. Use of the

Section 1113 process of the federal bankruptcy

law may cause greater sacrificesan areas we do

not necessarily desire,

Because APIA is acting responsibly, it 1s

seriously attempting to avoid bankruptcy.

[We still believe that obtaining an agreement

between the parties is likely to be better than

leaving the decision to a bankruptcy judge.

Because of this, we will try to reach a deal

regardless of how pessimistic things look.

American provided the restructuring terms on a take-

it-or-leave-it basis. In mid-March 2008, American

established unilaterally an April 15, 2003 deadline for

APFA, TWU and APA to complete their respective

membership ratification processes on the agreements

they were required to reach with American by March

$1, 2008, and informed the three Unions that, if they did

not provide ratified agreements by the April 15, 2008

deadline, the Company would file for bankruptcy. Ward

informed American that the APKFA Consti.ution

required a 30-day balloting period. American refused to

extend the deadline.

During discussions in the second half of March,

American adhered to its previously-stated position

that APIA would have to provide $ 340 million per

year in cost savings to the Company and that anything

less was unacceptable. During this time period, the

Company stated that the Union could make proposals

regarding the specific concessions to be included in the

agreement, but the overall package would have to

result in total annual savings valued by the Company at

$ 340 million. APFA attempted to interject its own

terms, but American was _ not receptive to them.

tather, American provided APFA with a list. of

possible concessions and placed a value on each. Steve

Boilini, a flight attendant and member of APF'A's

negotiating committee, interpreted the BOD's direction

to ‘take any and all necessary actions needed to reach a

negotiated consensual agreement" to mean that "the

negotiating team wasn't going in to actually negotiate. .

.|Wle were going in to do anything we could to make

sure American Airlines did not go bankrupt." Boilini

Dep. 25. Mr. Boilini understood it was the negotiating

teams purpose to conclude an agreement. Jd. The

APF A leadership felt that American had "a gun to our

heads." Ward Dep. 119-22. The situation "was nothing

[APFA] had ever experienced before.’ Liz Mallon

(member of APFA BOD) Dep. 113-14.

To meet the $ 340 million fiyure solely through wage

cuts would have required reductions in flight attendant

wage rates of 55%. APFA determined to avoid a Wwape

reduction of this magnitude. demanding — that

46a

alternative concessions be included in the overall

agreement. During the last two weeks of March 2003,

APFA proposed contractual "snapbacks" providing a

return to pre-concession terms and conditions of

employment during the life of the agreement, as well as

significant pay raises while the agreement remained in

effect. The Company refused these requests because it

viewed the concessions, not as a short-term change, but

"a change in how the airline was going to operate in the

future. . . . [WJhat [American was] doing would

permanently change the company in light of what was

happening in the industry." Jeffrey Brundage (former

American Vice President of Employee Relations) Dep.

342-48. APFA also proposed other "upsides" for the

flight attendants, e.g., unlimited recall rights for

furloughees and a profit-sharing program, both of

which were rejected by the Company. The Company

sought to eliminate the flight attendants’ defined

benefit pension plan. APFA resisted these changes.

b. The Company's Bankruptcy Preparation and

Section 1113 Proposal

The Company retained legal and financial advisors to

help prepare for a bankruptcy filing. The Company also

discussed with a group of financial institutions an

arrangement to provide $ 1.5 billion in financing for the

Company's operations while in bankruptey. The

Company intended to file for bankruptey on April 15,

2003 if all three Unions did not ratify agreements by

that date.

Shortly before the Company's March 81, 2008 deadline

for the three unions to reach agreements with

American, the Company provided APFA with its "S

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.