# Petition for Writ of Certiorari — Lindsay v. Association of Professional Flight Attendants > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1915%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 561 U.S. 1038 ## 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”? 11 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. D. IT. 0) 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. i —, 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) dd 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, 2 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 %) oO 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. 4 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). 2) 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 yg t) 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. — f 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 Q 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 A 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} 1) 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 © he 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 No 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 1] 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 12 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). 1s 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); 14 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”). 15 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. 16 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.) 17 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. 18 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. 19 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). 20 $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 21 California, 549 F.8d 781, 787, 789 (9 Cir. t 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). Oo 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 92 ow eet Or 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. 26 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, 27 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. ‘ ) 28 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. 30 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 Kd 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 9 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. 34 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 35 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 36 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 la (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- ) 2a 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 Oa 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 da 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: me No carrier, its officers, or agents shall chanye the rates of pay, rules, or working conditions of its da 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, Ha 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 oa ( a 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, Sa 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? 9a 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 we 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 la 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 cl 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 analysis. see, ©.8., Sprretsma Q?). Me reury Mayr ne, Ns | 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. T [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1915%3A4. Public record. Not legal advice.