Opposition Brief — Hammond v. Air Line Pilots Ass'n

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

Davip A. HAMMOND, et al.,

Petitioners,

V.

Arr LINE PILOTS ASSOCIATION,

INTERNATIONAL AND TRANS WORLD AIRLINES, INC.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF IN OPPOSITION OF RESPONDENT

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL

STEPHEN B. MOLDOF

Counsel of Record

MICHAEL L. WINSTON

COHEN, WEISS AND SIMON

330 West 42nd Street

New York, New York 10086

(212) 563-4100

Attorneys for Respondent

Air Line Pilots Association,

International

WILSON - Ergs PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

ic ST AVAILABLE COPY) .

AUIS 65 Aah cs AB oe

QUESTION PRESENTED FOR REVIEW

Whether the court below correctly determined that the

Air Line Pilots Association, International did not breach

its duty of fair representation when its actions in connec-

tion with the acquisition by one airline of another were

designed to protect the best interests of the plaintiff pilot

class and were neither discriminatory, in bad faith, nor

wholly irrational, and the plaintiff class overwhelmingly

ratified the seniority integration agreements which their

lawsuit attempts to vacate?

(i)

TABLE OF CONTENTS

Page

Re I oo cecccnnsennncsenesnounssanvccnessnennsses iv

COUNTERSTATEMENT OF THE CASE ....................

I cranbupiiantacnetionsansentns

I I nn cencsnstscnichnensesomessonedenencanmone

SUMMARY OF ARGUMENT ................0.....---.-2-.4.-2..- 8

REASONS WHY THE WRIT SHOULD BE DE-

a die SS OR el 9

I. THE DECISION BELOW IS CONSISTENT

WITH DECISIONS OF THIS COURT ............... 9

II. THE DECISION BELOW DOES NOT ESTAB-

LISH ANY CONFLICT WITHIN THE CIR-

CUITS WARRANTING REVIEW BY THIS

III. REVIEW IS UNWARRANTED BECAUSE

PLAINTIFFS CANNOT PREVAIL ON

TE TRIE RAINE sssecnescceancecicaticenenacennsvemnsenconnce 15

I cdc encanbicansiceidesennbsaninitoveesadonnemexneqnctannse 17

(iii)

iv

TABLE OF AUTHORITIES

Cases Page

Ackley v. Local 337, Int’l Bhd. of Teamsters, 948

F.2d 267 (6th Cir. 1991), reversing on rehear-

ing, 910 F.2d 1295 (6th Cir. 1990) ~............... 10, 11, 12

Ackley v. Western Conf. of Teamsters, 958 F.2d

SO Se FP einai decate 16

Acri v. International Ass’n of Mach., 781 F.2d

1393 (9th Cir.), cert. denied, 479 U.S. 816

Aguinaga Vv. United Food Workers Int'l Union,

993 F.2d 1468 (10th Cir. 1993) -................0.000....... 12,14

Air Line Pilots Ass’n, Int'l v. O’Neill, 111 S.Ct.

Re Ne iki ectcteieienieiniciibaisinionnmnenenl passim

Air Wisconsin Pilots Protection Comm. v. Sander-

son, 909 F.2d 213 (7th Cir. 1990), cert. denied,

a ee ee EE nckshessitieiticrninntias 15

Alexander v. International Union of Op. Eng’rs,

G6 Fe TERS. COR Gar, DOGG) wiisciicssrtiiccercccccnss. 13

Alicea Vv. Suffield Poultry, Inc., 902 F.2d 125 (1st

Rt I aa nie a tele lalaiciataneneh 12

Allen v. United Transp. Union, 964 F.2d 819 (8th

I I ia cheat cach scar sandeeseectnbiaalantiipecanan iad ieciertteoin 15

Amalgamated Ass’n of Street & Motor Coach Em-

ployees V. Lockridge, 403 U.S. 274 (1971) -.....-..- 13

Anderson V. United Paperworkers, Int'l, 641 F.2d

oe Rk See Ce ena 16

Association of Contracting Plumbers v. Local

Union 2, United Ass’n of Journeymen, 841 F.2d

EB Ge BE eksceceee cn cnetinimeinines 14

Baker v. Newspaper Union, Local 6, 628 F.2d 156

pS Re | RRR eee emcee oe Saee 15, 16

Barthelemy v. Air Line Pilots Ass’ n, Int'l, 397 F.2d

eR a een 2

Bates v. Locomotive Firemen, No. 472, 56 L.R.R.M.

478 - Bt te, Se | 15

Beardsley v. Chicago & North Western Transp.,

850 F.2d 1255 (8th Cir. 1988), cert. denied, 489

U.S. 1066 (1989) ..... FEO. AULT POORER RA OO EOE 13, 14

Bennett v. Local Union 66, Glass Workers Int’l

Union, 958 F.2d 1429 (7th Cir. 1992) -..-........... 10

ee

v

TABLE OF AUTHORITIES—Continued

Bernard v. Air Line Pilots Ass’n, Int’l, 873 F.2d

CT Be vinsaccaaeeecncneatenrinciacomeds

Carter v. United Food Workers Int’l Union, Local

789, 963 F.2d 1078 (8th Cir. 1992)) _....... ecaleceieion

Chaparro-Febus v. International Longshoremen

Ass’n, Local 1575, 983 F.2d 325 (ist Cir.

I ics a eee een 10,

Chicago, M., S.P. & P.R.R. V. -RLEA, 658 F.2d

1149 (7th Cir. 1981), cert. denied, 455 U.S.

I CG eine cece be ernceec

Colon Velez v. Puerto Rico Marine Management,

Inc., 967 F.2d 988 (ist Cir. 1992) ........................

Deboles v. Trans World Airlines, 552 F.2d 1005

(3d Cir.), cert. denied, 434 U.S. 837 (1977) ........

Denver Stereotypers Union, Local 13 v. NLEB,

ve oe Be eG eS) eee vernal

Fall River Dyeing & Finishing Corp. v. NLRB,

Er re EE sates neces snicoansnoecenn atiegnics

Ford Motor Co. v. Huffman, 345 U.S. 330 (1953) -.

Goclowski v. Penn Central Transp. Co., 571 F.2d

Ie ee Re ET oka gsc ac aieeperresanncannners

Gvozdenovic Vv. United Air Lines, 933 F.2d 1100

(2d Cir.), cert. denied, 112 S.Ct. 305 (1991)...

Hines v. Anchor Motor Freight, Inc., 424 U.S. 554

"hs 2 | I eaRbagepraen Sorel RetAr ne neo Op ane a rrees eae Sones nore

Humphrey Vv. Moore, 375 U.S. 335 (1964) -..... 9, 10,

International Bhd. of Teamsters v. NLRB, 587

kh Bi, Beet ee | Re. |. | Serene nce

Jones Vv. Union P. & R. Co., 968 F.2d 937 (9th Cir.

a coecesece ese ae seeedscalgahenie ry totems nba teaiiink

Macktal v. Secretary of Labor, 923 F.2d 1150

CS Ce RD aici cae cteiicetee iecteoccicneetes

Marshall v. Local 6, Brewers and Gen. Labor

Dep’ts, 960 F.2d 1360 (8th Cir. 1992) ................

Marshall v. Local Union 6, 756 F. Supp. 408 (E.D.

Mo. 1991), aff'd in part and rev’d in part, 960

Wee Fae Cees Cat BONED ieee

NLRB v. Whiting Milk Corp., 342 F.2d 8 (1st Cir.

OGY casein eee tei ccsisdston cindecincsianaanmnninntan

Page

11,12

14

10

16

13

vi

TABLE OF AUTHORITIES—Continued

Page

Nellis v. Air Line Pilots Ass’n, Int'l, 815 F. Supp.

I EL, IID sa. scasiolcenaniaeanestindeanepenirineebubiichanes 14,15

Nicely v. USX, 767 F. Supp. 728 (W.D. Pa. 1991),

aff'd, 928 F.2d 18 (3d Cir. 1992) ~....................... 15-16

Norris v. Northeast Ill. R.R. Bd., 126 L.R.R.M.

(BNA) 2064 (N.D. Ill. 1987) ........................:..... 15

O’Neill v. Air Line Pilots Ass’n, Int’l, 989 F.2d

I IN I IEE © sovicenisntatnsiannecchanlsdeneeneannensbeniimnds 11, 12

Ooley v. Schwitzer Div., Household Mfg. Inc., 961

F.2d 1293 (7th Cir.), cert. denied, 113 S.Ct. 208

(|, ESAT ORL ne Pent ee a ee Ce Nene 12, 16

Parker v. Connors Steel, 855 F.2d 1510 (11th Cir.

1988), cert. denied, 490 U.S. 1066 (1989) ............ 16

Schick v. NLRB, 409 F.2d 395 (7th Cir. 1969) ........ 11

Self v. Drivers Local 61, 620 F.2d 439 (4th Cir.

I ita cienhs thtiedad cunigestehacaaeoeneeneaadeasendieataines 16

Sutton v. Weirton Steel Div. of Nat’l Steel, 724

F.2d 406 (4th Cir. 1983), cert. denied, 467 U.S.

call ad saonniien telehabonsnediabchaieninty’ 16

Trail v. International Bhd. of Teamsters, 542 F.2d

RE ID in csaseennniscnntenievnsienaanenannenseins 14

United Steelworkers v. Rawson, 495 U.S. 362

LO. 0a ccbincennpeblinkonicniaioe 14

Vaca Vv. Sipes, 386 U.S. 171 (1967) ..................---.---- 9

Volkmen v. United Transp. Union, 724 F. Supp.

SII E giiscnsensccansncscisbicecinnmensnsnmchaseabniions 15

Walk v. P*I*E Nationwide, Inc., 958 F.2d 1323

SI I, I ca ciniaenicsaspnaceuasnaesbigtensicsetassitaanntis 14

Warner Vv. McLean Trucking Co., 186 L.R.R.M.

(BNA) 2633 (S.D. Ohio), appeal dismissed, 137

L.R.R.M. (BNA) 3000 (6th Cir. 1991) .............. 15

Wood v. International Bhd. of Teamsters, Local

406, 807 F.2d 493 (6th Cir. 1986), cert. denied,

San IIE IS © iss nadkseantnasbsaahanabanesbennnes 16

Statutes

Labor Management Reporting and Disclosure Act,

UE I ia cecsnikinicsisoemnencevonnsameions

Railway Labor Act, 45 U.S.C. § 151 et seq. ............

an

ee

IN THE

Siuprenwe Court of the United States

OCTOBER TERM, 1993

No. 93-30

Davip A. HAMMOND, et al.,

‘ Petitioners,

AIR LINE PILOTS ASSOCIATION,

INTERNATIONAL AND TRANS WORLD AIRLINES, INC.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF IN OPPOSITION OF RESPONDENT

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL

In 1986, Trans World Airlines, Inc. (“TWA”) agreed

to acquire Ozark Airlines, Inc. (“Ozark”). Thereafter,

negotiations were conducted between the Ozark and TWA

pilots to arrive at an integrated pilot seniority list. With

the extensive mediatory assistance of the Air Line Pilots

Association, International (“ALPA’’), the exclusive bar-

gaining representative of both pilot groups, agreements

were reached between the two pilot groups, through their

chosen representatives, and with TWA (the “Merger

Agreements”). The Ozark pilots (the plaintiffs in this

lawsuit) demanded and were granted the right to have

the final say on whether the Merger Agreements could

be implemented. After being briefed on the Agreements

and advised of the alternatives to ratification, the Ozark

pilots voted for the Agreements by a 329 to 35 margin.

2

The Seventh Circuit affirmed the District Court’s deter-

mination that ALPA did not breach its duty of fair rep-

resentation (“DFR”) in connection with the seniority

integration because ALPA’s actions were rationally re-

lated to legitimate objectives and were neither discrimi-

natory nor undertaken in bad faith. The appellate court’s

ruling is fully consistent with DFR decisions of this

Court and other appellate courts and presents no issues

of importance warranting review.

COUNTERSTATEMENT OF THE CASE

The following counterstatement is offered to provide a

more “accurate description” of the facts and proceedings

below than that provided by petitioners. App. 43.’

A. The Facts

In 1985, Texas Air Corporation, headed by Frank

Lorenzo, tried to acquire TWA. The TWA pilots greatly

feared a Lorenzo takeover. To counter Lorenzo, the

TWA pilots assisted a competing takeover effort by Car!

Icahn, offering to accept massive concessions if Icahn pre-

vailed, which he eventually did. In exchange, Icahn

agreed, in a document known as the “Wraparound Agree-

ment,” that if Icahn/TWA subsequently acquired another

airline, the TWA pilots would be protected against any

reduction in or transfer of TWA aircraft, and that

ALPA’s consent would be required for any merger of the

pilot seniority lists of TWA and the acquired carrier.

App. 3, 46-48; see generally Barthelemy v. Air Line

Pilots Ass'n, Int'l, 897 F.2d 999, 1003-04 (9th Cir.

1990). These protections were in addition to furlough

1 “App. ” refers to the appendix submitted with the petition

for a writ of certiorari. “Pet. ——” refers to the petition. Deposi-

tion transcript excerpts (“Tr.”) and declarations (“Decl.”) from

the record on appeal are cited by the name of the deponent or

declarant. Document exhibits are identified by party and “Ex.”

number. All references to the record on appeal are to materials in

docket number R.159 unless otherwise indicated.

3

(layoff) protections that the TWA pilots had acquired

as a quid pro quo for other pre-Icahn concessions. TWA

Ex. 8.

In 1986 TWA acquired Ozark. App., 4. The Ozark

pilots did not have contractual protections comparable to

the aforementioned protections that the TWA pilots en-

joyed. App., 4, 17, 46-48, 50.

After TWA agreed to acquire Ozark, a disagreement

arose between the TWA and Ozark pilot groups over

how best to merge their seniority lists. The more senior

TWA pilot group favored an integration based on the

date each pilot was hired by his respective airline. App.,

4. The Ozark pilots (contra Pet., p. 3) proposed a dif-

ferent integration methodology which furthered their in-

terests. App., 4.

Under ALPA’s internal merger policy—which is not

binding on air carriers, App., 17—the pilots employed by

merging carriers initially attempt to arrive at a seniority

integration agreement through negotiations, “with the help

of a professional mediator if necessary.” Pet., p. 2.

Arbitration is utilized only if a prescribed lengthy period

of negotiations and mediation does not produce an agree-

ment. App., 4 (contra Pet., p. 2). In order to best serve

the affected pilots’ interests, ALPA, when implementing

merger policy, necessarily takes into account the circum-

stances presented by a particular transaction. R.196,

Duffy Decl., €€ 2-3; Duffy Tr. 65-66, 78-80; see App.,

17 (and contra Pet., pp. 2, 15, 18, 19).

The two pilot groups disagreed over whether ALPA’s

merger policy was applicable to the TWA-Ozark transac-

tion: the Ozark pilots argued that it was; the TWA pilots

believed the policy was superceded by the Wraparound

Agreement. App., 43. Notwithstanding the TWA pilots’

position, the two pilot groups proceeded as they would

have under merger policy, attempting to negotiate an

agreement. R.156, 4 30 and R.167, € A-30.

4

Both the Ozark pilots and ALPA recognized that a

prompt integration was essential to protect the Ozark

pilots from ‘‘calamitous’” consequences which the TWA-

Ozark transaction threatened, including a serious risk of

Ozark pilot furloughs. App., 17, 43. To accomplish that

objective and prevent “premature intra-union litigation”

and warfare which were likely to result from formal

implementation of merger policy at that time, App., 18,

43-44; Duffy Tr. 143-44, ALPA established an approach

for achieveing an integrated seniority list which was func-

tionally equivalent to that prescribed by the merger pol-

icy, assigning an experienced mediator to assist the two

groups in their efforts to negotiate an integrated list.

App., 4, 18; ALPA Ex. 24. Through these efforts, the

differences between the two groups were substantially

narrowed. Ettel Tr. 109-11, 129-33, 178-79 and ALPA

Exs. 70, 78-79. ALPA additionally sought to protect the

Ozark pilots by petitioning the Department of Transpor-

tation, the courts and Congress to condition approval of

the carriers’ merger on TWA’s adherence to labor pro-

tective provisions. App., 5.

While the integration efforts continued, TWA unilater-

ally acted to transfer four aircraft, of a type operated

pre-merger by both airlines, from Ozark to TWA, laid

off 86 Ozark pilots and threatened further transfers and

furloughs. App., 4, 18, 50. In response, ALPA offered

to initiate and pursue any legal challenges the Ozark

pilots desired. App., 43, 50. TWA’s actions, however,

were not prohibited by the Wraparound Agreement

(which, contra Pet., pp. 6-7, 22, “barred shrinkage at

TWA but not a transfer of planes into TWA,” App., 4;

supra, p. 2), the ALPA-Ozark collective bargaining agree-

ment (the “CBA’’), supra, p. 3, or merger policy (to

which TWA was not bound, App., 17).

When the initial mediation efforts had not produced a

complete agreement, ALPA proceeded as the Ozark pilots

desired, R.196, Ettel Tr. 57 (contra Pet., p. 5) and

against the wishes of the TWA pilots (contra Pet., p. 4),

5

by formally initiating merger policy, App., 43, 50, and,

taking account of the prior mediation efforts, shortened

the time period before either group could trigger arbitra-

tion. O’Toole Tr., 191-92. With the assistance of ALPA-

appointed ‘“‘super-mediators,” the pilot groups reached

an agreement between themselves and with TWA upon

an integrated list which dovetailed the seniority of the

two pilot groups, granting all pilots identical credit for

their seniority at their respective carriers. App., 4-5,

18-19, 43-44, 53. The Ozark pilots were additionally

granted “protective cells,” guaranteeing many of them

captain and first officer positions which their seniority on

the integrated list would not have otherwise entitled them

to hold and which would have otherwise gone to TWA

pilots. App., 5 (contra Pet., pp. 5-6, 19—suggesting, on

the basis of a single TWA pilot’s assessment, that Merger

Agreements had no adverse impact on TWA pilots).

The Ozark pilots demanded and were granted the right

to make “the ultimate decision” whether to approve the

integration. O’Toole Tr. 214-18; Yaiser Tr. 29-30. After

being provided copies of and briefed on the Merger Agree-

ments, afforded an opportunity to ask questions of their

chosen representatives and counsel, and advised of the

consequences of their vote and available alternatives (in-

cluding returning to the bargaining table, proceeding under

merger policy, and/or instituting litigation—all of which

ALPA continued to offer), R.156 99467, 69, 70 and

R.167, § A-67, 69, 70; R.196 Duffy Decl., 49, the

Ozark pilots approved the integration by a better than

9 to 1 margin. App., 4-5, 48, 50. Only after and be-

cause of the Ozark pilots’ affirmative vote did ALPA

President Henry Duffy give the Union’s consent to the

seniority integration (contrary to the suggestion at Pet.,

pp. 10, 18 that it was ALPA that determined the senior-

ity integration) which was required for the integration

to be effective under the Wraparound Agreement. App.,

4, 10, 50.

B. Proceedings Below

Plaintiffs filed a class action suit on behalf of the

former Ozark pilots claiming that ALPA breached its

DFR, for which TWA was jointly responsible, by delay-

ing formal implementation of merger policy. App., 5, 18,

42-45. Plaintiffs additionally alleged violations of the

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

the Labor Management Reporting and Disclosure Act

(“LMRDA”’), 29 U.S.C. § 401 et seq., the Wraparound

Agreement and the Ozark-ALPA CBA. App., 5, 18, 46,

49-52.

The district court initially ruled that ALPA “did not

breach its duty of fair representation” and that “the

Ozark pilots were not coerced in any manner that would

vitiate” their ‘““overwhelming” vote “in favor of approval

of the terms of which plaintiffs complain.” App., 35, 38-

39. The Seventh Circuit denied plaintiffs’ motion for

summary reversal, App., 36-37, remanding “for the lim-

ited purpose of allowing the district court to enter a com-

plete statement of [the] reasons” for its ruling. App., 37.

The district court’s subsequent memorandum decision,

App., 40-54, applied the DFR standard established by this

Court to the record in this case, App., 42-46, and found

that “there is no genuine issue of material fact as to

whether ALPA’s actions were arbitrary, discriminatory,

or in bad faith; they were not.” App., 46. Among other

things, the district court found that: any delay in formal

merger policy implementation was the result of ALPA’s

attempt “to obtain the best bargain possible’? for the

Ozark pilots while ‘“‘resolv[ing] the seniority-list-integration

issue on a basis acceptable to both pilot groups,” App.,

44, 50; the settlement which plaintiffs’ lawsuit challenged

was a product of the “incredibly weak” bargaining posi-

tion of the Ozark pilots, “rather thun a breach of ALPA’s

[DFR]’, App., 44; any legal challenge against TWA was

“uncertain” and could have resulted in “a lengthy period

of joblessness for the Ozark pilots,’ App., 43, 50; there

Tio aeeeaneeneetnee ieee ieniaieaiaaiaaiiandatmnaiiaaiiiiaiaaiiiia

7

was “no coercion or duress that would vitiate’’ the Ozark

pilots’ overwhelming vote in favor of the Agreements,

App., 53; and there was no evidence that ALPA’s con-

duct was improperly motivated. App., 44-45. The dis-

trict court further concluded that the Ozark pilots pos-

sessed no rights under the Wraparound Agreement which

were breached and that their overwhelming vote in favor

of the Merger Agreements was not the product of any

LMRDA violation “but rather a rational decision that

the Ozark pilots were better off ratifying the agreement”

than pursuing “an uncertain lawsuit,” and disposed of

their other breach of RLA and contract claims against

TWA. App., 46-53.

The court of appeals unanimously affirmed.’ It found

that: ALPA merger policy was not binding on TWA and

“could not compel TWA to agree to anything,” App., 17;

the Wraparound Agreement imposed no limits on TWA’s

ability to move aircraft from Ozark to TWA, to “put

TWA’s pilots to work in [the Ozark] cockpits,” and to

otherwise “apply[] the screws” to the Ozark pilots, App.,

4, 17-18; and rotely “[c]ramming the ‘merger policy’

down the throats of an unwilling cadre at TWA” would

have impeded efforts to reach a seniority integration

agreement, which “‘could have been calamitous for Ozark’s

pilots.” App., 17. The appellate court further determined

that: ALPA’s merger policy was not etched in stone and

did not prohibit “experimentation and change when cir-

cumstances warrant,” App., 17; ALPA actions reflected

its attempts to amicably “bridge the gap between Ozark’s

and TWA’s pilots,” and avoid “premature intra-union

litigation,” App., 17-18; the agreed-upon dovetailed inte-

gration reflected a rational result, App., 16; ALPA with-

held its consent to a seniority integration until the pilot

groups had reached an agreement, which the Ozark pilots

overwhelming approved, App., 4, 18; and ALPA’s actions

were “rationally related to a legitimate objective.” App.,

__

2 The decision also addressed another DFR case, Rakestraw V.

United Airlines, Inc.

8

15. The court also found that ALPA had made addi-

tional efforts before Congress, governmental agencies and

in the courts to protect the Ozark pilots. App., 5.

The Seventh Circuit concluded, based on the record,

that plaintiffs’ allegations of ALPA wrongdoing were

without evidentiary support and that ALPA’s actions met

all three prongs of the DFR standard: they did not fall

“so far outside a ‘wide range of reasonableness’” as to

have been “arbitrary,” App., 10-11, 16-17; Air Line

Pilots Ass’n, Int’l v. O'Neill, 111 S.Ct. 1127, 1135-36

(1991) (citation omitted); they did not discriminate

against the Ozark pilots “for a reason forbidden on sub-

stantive grounds, such as race or internal union politics,”

App., 11, 17-18, and thus did not reflect “invidious ‘dis-

crimination’ of the kind prohibited” by the DFR, O'Neill,

111 S.Ct. at 1137; and they did not in “bad faith” in-

tentionally injure the plaintiffs. App., 11-13, 17-18. The

court held that plaintiffs’ remaining claims “founder[ed]

on their own vote in favor of the merger and the ensuing

new collective bargaining agreement,” App., 18-19, which

further dispelled any claim that ALPA’s alleged wrongs

had caused plaintiffs’ injury. App., 19. The court further

held that to permit plaintiffs to disavow their overwhelm-

ing approval of the integration as allegedly coerced would

ignore the factual and legal reality (“TWA had every

right to use economic pressure,” App., 18) and conflict

with the “peaceful . . . contractual resolution of differ-

ences” which is “[o]ne of the principal objectives of labor

law.” App., 18.

The appellate court denied plaintiffs’ petition for re-

hearing and suggestion for in banc rehearing. App.,

26-27.

SUMMARY OF ARGUMENT

The decision below involves the application of estab-

lished DFR principles to undisputed facts and is con-

sistent with decisions of this and other appellate courts.

The petition presents no issues warranting Supreme Court

review.

i,

ee

9

REASONS WHY THE WRIT SHOULD BE DENIED

I. THE DECISION BELOW IS CONSISTENT WITH

DECISIONS OF THIS COURT

The petition principally urges that review is needed

because the decision below allegedly ‘‘collapsed” this

Court’s tripartite DFR standard into “a single rationality

test.” Pet., pp. 9, 11, 13. This contention rests on a

misunderstanding of the standard and a mischaracteriza-

tion of the ruling below. The appellate court’s decision

is fully consistent, both in approach and result, with this

Court’s DFR rulings.

A. Under the DFR standards articulated by this

Court, union actions breach the DFR only if they are

discriminatory, in bad faith, or “wholly ‘irrational’ or

‘arbitrary.’” Air Line Pilots Ass’n, Int'l v. O'Neill, 111

S.Ct. 1127, 1136 (1991); see Vaca v. Sipes, 386 US.

171, 190 (1967). Unions are to be accorded wide lati-

tude and deference in addressing the competing interests

of represented employee groups. Ford Motor Co. v.

Huffman, 345 U.S. 330, 338 (1953); Humphrey v.

Moore, 375 U.S. 335, 349-50 (1964): O’Neill, 111 S.Ct.

at 1135-37. Further, union conduct must be evaluated

in light of “the strong policy favoring the peaceful settle-

ment of labor disputes” as well as “the facts and the

legal climate that confronted the [union] at the time [its]

decision was made.” O'Neill, 111 S.Ct. at 1136. Con-

trary to the petition, pp. 11, 12, this Court has not man-

dated a rigid analytical approach that the lower courts

must mechanically follow in applying the DFR standard.

B. The court below could hardly be said to have “dis-

parage[d]” or “repudiat[ed]” this Court’s DFR standard

(contra Pet., pp. 9, 11) when it applied that standard in

light of its application in prior decisions of this Court and

other appellate courts, App., 10-15, rather than by focus-

ing solely on the “arbitrary,” “discriminatory” and “bad

faith” “labels” which, as the court aptly observed, ‘are

not self-defining.” App., 11. The appellate court’s ap-

10

proach was identical to that which has been followed by

this Court and other appellate courts.*

The appellate and district courts measured ALPA’s

conduct against each prong of the DFR standard (contra

Pet., pp. 11-14). They evaluated ALPA’s actions based

on “the situation in which ALPA found itself, [and] what |

ALPA did,” App., 43, and, in “light of both the facts

and the legal climate” that then confronted the union,

O’Neill, 111 S.Ct. at 1136, and determined that ALPA

did not act arbitrarily in delaying formal policy imple-

mentation while simultaneously pursuing an approach

which was fully consistent with the merger policy’s senior-

ity integration procedures and by otherwise acting to pro-

tect the Ozark pilots. As the lower courts correctly con-

cluded, ALPA acted to “bridge the gap”’ between the two

pilot groups, to “obtain the best bargain possible” for the

Ozark pilots and to protect them from “premature intra-

union litigation” and the “calamitous” consequences with

which they were threatened. App., 17, 18, 42-44, 50.

Further, the appellate court did not, contra Pet., pp.

10, 23, ignore plaintiffs’ accusations of bad faith or dis-

criminatory ALPA conduct. Instead, it again turned to

other cases for guidance to ascertain the parameters of

those components of the DFR standard, and, like the dis-

trict court, carefully reviewed the record presented. The

Seventh Circuit recognized that “‘a union may not take

away the seniority of some employees for no reason other

than that the losers have too few votes to affect the out-

8 F.g., O’Neill, 111 S.Ct. at 1135-37; Humphrey, 375 U.S. at 342;

Chaparro-Febus v. International Longshoremen Ass’n, Local 1575,

983 F.2d 325, 330-31 (1st Cir. 1992); Bennett v. Local Union 66,

Glass Workers Int’l Union, 958 F.2d 1429, 1437-38 (7th Cir. 1992)

(cited at Pet., p. 17); Gvozdenovic v. United Air Lines, 933 F.2d

1100, 1106-07 (2d Cir.), cert. denied, 112 S.Ct. 305 (1991); Ackley

v. Local 387, Int’l Bhd. of Teamsters, 910 F.2d 1295, 1807-08 (6th

Cir. 1990) (original dissenting opinion adopted as opinion of court

on rehearing in light of intervening O’Neill decision, see 948 F.2d

267 (6th Cir. 1991)).

11

come of an intra-union election, or that they opposed the

union’s leadership,”’ or “sell an employee down the river

for no reason at all, or for a reason forbidden on sub-

Stantive grounds, such as race or internal union politics.”

App., 11. Thus, the court did not (contra Pet., p. 10 and

App., 31, dissent from denial of rehearing) view “rote

majority rule” as the measure of the DFR. However, the

court also correctly recognized that plaintiffs must do

more than simply affix “discrimination” or “bad faith”

“‘label[s]”” to ALPA’s actions. App., 15. Turning to the

evidence, the lower courts found nothing which demon-

strated (contra Pet., pp. 22-23) that ALPA acted “to

placate a larger more politically powerful segment of its

membership at the expense of a much smaller, weaker

group; [or] to advance the political interest of its Presi-

dent, Hank Duffy,” App. 44; id., 11, 13, 17-18, or that

ALPA acted in bad faith. App., 11, 12, 15, 17-18, 45.4

Any claim of discrimination or bad faith was further

dispelled by ALPA’s extensive efforts specifically aimed

at protecting the Ozark pilots, supra, pp. 4-5, by

ALPA’s willingness “to back the Ozark pilots if they

chose to stand on their presumed rights and not ratify”

the Merger Agreements, App., 50, and to withhold con-

sent unless and until the Ozark pilots approved the Agree-

ments, App., 4, 18, 50, and by the identical treatment

accorded both pilot groups through the dovetailing of the

seniority lists. App., 16. See Humphrey, 375 U.S. at 347

(dovetailing is “‘a familiar and frequently equitable solu-

tion to the inevitably conflicting interests which arise in

the wake” of a merger or acquisition).°

*The appellate court’s discussion of “mixed motives” on which

the petition focuses, see Pet., p. 24, pertained only to the Rakestraw

case. App., 19-20. As indicated, the lower courts found no evidence

of improper ALPA motivation in Hammond.

5 As the court below correctly observed, even “endtailing” of merg-

ing employee groups has been held to satisfy the DFR. App., 16;

Schick v. NLRB, 409 F.2d 395, 398-99 (7th Cir. 1969); Ackley,

948 F.2d at 267; Marshall v. Local 6, Brewers and Gen. Labor

12

In sum, there is no divergence between the decision

below and this Court’s DFR caselaw which warrants Su-

preme Court review.

II. THE DECISION BELOW DOES NOT ESTABLISH

ANY CONFLICT WITHIN THE CIRCUITS WAR-

RANTING REVIEW BY THIS COURT

Plaintiffs also cannot establish that the decision below

presents a conflict within the circuits or raises “recurring

issues concerning the scope of each of the three prongs”

of the DFR standard, Pet., p. 15, that require intervention

by this Court.

A. Since this Court “clarified the [DFR] standard” in

O’Neill, 111 S.Ct. at 1130, the lower courts have not

demonstrated any difficulty in understanding its param-

eters. The standard has been consistently applied in all

circuits, including the Seventh. For example, the appel-

late courts, like Hammond, supra, pp. 8, 10-11, have rec-

ognized that under the DFR standad established by this

Court (and contra Pet., pp. 20-21), intentional union

misconduct must exist to establish a “discriminatory” or

“bad faith’ DFR breach.® O’Neill, 111 S.Ct. at 1137

Dep’ts, 960 F.2d 1360, 1870 (8th Cir. 1992); NLRB v. Whiting

Milk Corp., 342 F.2d 8, 11 (1st Cir. 1965); see also Chaparro-

Febus, 983 F.2d at 330-31 (cannot establish DFR breach merely by

showing that the seniority system selected favors one employee

group over another); O’Neill v. Air Line Pilots Ass’n, Int’l (on

remand), 939 F.2d 1199, 1204 (5th Cir. 1991) (same).

6 Carter Vv. United Food Workers Int’l Union, Local 789, 963 F.2d

1078, 1082 (8th Cir. 1992) (cited at Pet., p. 12) (“union inten-

tionally and invidiously discriminated against” a protected class) ;

Bennett, 958 F.2d at 1436-37, 1438 n.6 (Pet., p. 17) (“somewhat

harder to find intentional misconduct,” as required under DFR bad

faith element, than arbitrary action by union) ; Aguinaga v. United

Food Workers Int’l Union, 993 F.2d 1468, 1470 (10th Cir. 1993)

(Pet., pp. 12, 18, 17, 28, 25) (discrimination and bad faith prongs

require showing of “invidious” discrimination and “fraud, or deceit-

ful or dishonest action,” respectively); Ooley v. Schwitzer Div.,

13

(plaintiff must demonstrate “invidious ‘discrimination’ vat

Humphrey, 375 U.S. at 348 (must demonstrate “sub-

Stantial evidence of fraud, deceitful action or dishon-

est conduct”); see also Amalgamated Ass’n of Street &

Motor Coach Employees v. Lockridge, 403 US. 274, 301

(1971).?

B. Plaintiffs cannot manufacture an inter-circuit con-

flict warranting review simply by pointing to other deci-

sions in which the DFR has been found to have been

breached based on factual circumstances which differ

radically from those found in Hammond. For example,

the Ozark pilots were not denied input into the determi-

nation of their seniority (as in Bernard v. Air Line Pilots

Ass'n, Int’l, 873 F.2d 213, 216-17 (9th Cir. 1989) (Pet.,

pp. 13-14, 16, 18-20) and Beardsley v. Chicago & North

Western Transp., 850 F.2d 1255, 1269 (8th Cir. 1988),

cert. denied, 489 U.S. 1066 (1989) (Pet., p. 21)), or

denied a promised contract ratification (as in Alexander

v. International Union of Op. Eng’rs, 624 F.2d 1235,

1240 (Sth Cir. 1986), International Bhd. of Teamsters

Vv. NLRB, 587 F.2d 1176, 1183 (D.C. Cir. 1978), and

Household Mfg. Inc., 961 F.2d 1293, 1303-04 (7th Cir.), cert. denied,

113 S.Ct. 208 (1992) (requiring “invidious discrimination” to

Satisfy discrimination prong) ; Chaparro-Febus, 988 F.2d at 330-

31 (union’s determination on seniority must amount to “invidious

discrimination” to breach DFR) ; O’Neill (on remand), 939 F.2d at

1203 (ALPA’s actions not “sufficiently egregious,” “intentionally

misleading” or “invidious” enough to establish bad faith DFR

breach) ; Ackley, 910 F.2d at 1307-08 (original dissenting opinion

—adopted as the ccurt’s opinion on rehearing in light of O’Neill,

see 948 F.2d 267—no DFR breach where union did not discriminate

against a protected group) ; see also Alicea v. Suffield Poultry, Inc.,

902 F.2d 125, 130 (1st Cir. 1990); Jones v. Union P. & R. Co.,

968 F.2d 937, 941 (9th Cir. 1992) (Pet., p. 12) (DFR “is narrowly

construed by the courts ... so that unions may act freely in what

they perceive are the best interests of their members generally’).

7 Contrary to Pet., p. 10, O’Neill only questioned the Seventh

Circuit’s use of an intentional misconduct requirement as applied

to the ”arbitrary” prong of the DFR standard. 111 S.Ct. at 1134-

35.

i

14

Trail v. International Bhd. of Teamsters, 542 F.2d 961,

968 (6th Cir. 1976) (all cited at Pet., p. 17)). Neither

did ALPA ignore its merger policy, Bernard, 873 F.2d

at 216-17; cf. Nellis v. Air Line Pilots Ass’n, Int'l, 815

F.Supp. 1522, 1533, 1539 (E.D. Va. 1993) (Pet., pp.

16, 17) (no DFR breach where ALPA, as here, did not

“ignore” its merger policy and undertook reasonable steps

to benefit and protect plaintiffs’ interests), otherwise dis-

criminate against a protected class or act in bad faith (as

in Carter, 963 F.2d at 1082 (Pet., p. 12) and Denver

Stereotypers Union, Local 13 v. NLRB, 623 F.2d 134,

137-38 (10th Cir. 1980) (Pet., p. 17)), or bargain

away substantive rights already conferred upon a minor-

ity group in a collective bargaining agreement (as did the

unions in Beardsley, 850 F.2d at 1269, Goclowski v.

Penn Central Transp. Co., 571 F.2d 747, 751 (3d Cir.

1977) (Pet., pp. 17, 26),° Aguinaga, 993 F.2d at 1470-

71 (Pet., pp. 12-13, 17, 23, 25), Colon Velez v. Puerto

8 On remand in Goclowski, the district court concluded that the

union, as here, did not contract away plaintiffs’ seniority rights,

but instead “acted to protect the interests of these employees as

best it could.” 545 F. Supp. 337, 346-47 (W.D. Pa. 1982), aff’d, 707

F.2d 1401 (8d Cir. 1982). See also Association of Contracting

Plumbers v. Local Union 2, United Ass’n of Journeymen, 841 F.2d

461, 469 (2d Cir. 1988) (Pet., p. 17) (affirming lower court ruling

that the union’s breach of its constitution “does not give rise to a

duty of fair representation” claim); Walk v. P*I*E Nationwide,

Inc., 958 F.2d 1323, 1829-30 (6th Cir. 1992) (Pet., p. 12) (affirming

summary judgment because union’s conduct, at most, amounted to

“negligen[ce]” or a “mistake in judgment, [which is] not a basis

for finding a failure of fair representation”).

Contrary to Pet., p. 16, the issue in United Steelworkers Vv.

Rawson, 495 U.S. 362, 376 (1990), was not whether the union vio-

lated its DFR, but whether it had assumed and violated a con-

| tractual obligation to employees under a CBA. Further, even if, as

plaintiffs contend, Pet., p. 16, the merger policy is somehow analo-

gous to a CBA, plaintiffs asserted no breach of contract claim based

upon an alleged violation of the merger policy. Even if they had,

ALPA’s actions in establishing procedures consistent with its

merger policy negate any claim that ALPA “failfed] to act” on

any obligation owed to plaintiffs. Rawson, 495 U.S. at 375.

ar |

15

Rico Marine Management, Inc., 957 F.2d 933, 940-41

(Ist Cir. 1992) (Pet., p. 12) and Volkmen vy. United

Transp. Union, 724 F.Supp. 1282, 1329-31 (D. Kan.

1989) (Pet., p. 21)).°

In sum, plaintiffs have not identified and cannot estab-

lish any conflict in the circuits over the application of the

DFR standard.

III. REVIEW IS UNWARRANTED BECAUSE PLAIN-

TIFFS CANNOT PREVAIL ON THEIR DFR CLAIM

Review of the decision below is additionally unwar-

ranted because it would serve no purpose. The Ozark

pilots’ overwhelming approval of the Merger Agreements

eliminated their ability to prove, as required, that ALPA

was legally responsible for the injuries they allegedly suf-

fered. App., 19 (“A wrong is actionable only when it

causes injury . . .”); Marshall v. Local Union 6, 756

F.Supp. 408, 413 (E.D. Mo. 1991) (ratification of sen-

iority agreement is “intervening event which eliminated”

any improper union actions), aff’d in part and rev’d in

part, 960 F.2d 1360, 1370 (8th Cir. 1992) (no DFR

breach where union negotiated modified endtailing agree-

ment which employees ratified); Nicely v. USX, 767

® Consistent with the Seventh Circuit’s determination that the

merger policy did not strip ALPA of its ability to take actions

designed to protect the interest of those employees it represented,

other courts have afforded unions “flexib[ility]” in applying in-

ternal constitutions and policies in integrating seniority lists or in

otherwise protecting employee interests. Allen v. United Transp.

Union, 964 F.2d 819, 821 (8th Cir. 1992); Air Wisconsin Pilots

Protection Comm. vy. Sanderson, 909 F.2d 213, 218 (7th Cir. 1990),

cert. denied, 498 U.S. 1085 (1991); Baker vy. Newspaper Union,

Local 6, 628 F.2d 156, 166 (D.C. Cir. 1980) ; Nellis, 815 F. Supp. at

1538-40; Bates v. Locomotive Firemen, No. 472, 56 L.R.R.M. (BNA)

2271, 2274 (M.D. Fla. 1964); Norris v. Northeast Ill. R.R. Bd.,

126 L.R.R.M. (BNA) 2954, 2958 (N.D. Ill. 1987); Warner v.

McLean Trucking Co., 136 L.R.R.M. (BNA) 2638, 2637-88 (S.D.

Ohio), appeal dismissed, 187 L.R.R.M. (BNA) 3000 (6th Cir. 1991).

eT

16

F.Supp. 728, 731-32 (W.D. Pa. 1991), afd, 928 F.2d

13 (3d Cir. 1992).

The Ozark pilots’ informed and “voluntary” vote,

contra Pet., p. 26, could ‘“‘not be withdrawn because the

choice was an effort to make the best of a bad situation,”

or because plaintiffs later “wish they could have made

better deals.” App., 18-19. Accord App., 50, 53. Col-

lective bargaining agreements entered into when prospects

are dire are no less binding than those fashioned in a

favorable economic climate. Parker v. Connors Steel,

855 F.2d 1510, 1520-21 (11th Cir. 1988) (affirming

summary judgment for union against employees who rati-

fied concessionary agreement after company threatened to

close plant), cert. denied, 490 U.S. 1066 (1989); Baker,

628 F.2d at 166; Sutton v. Weirton Steel Div. of Nat'l

Steel, 724 F.2d 406, 409, 412 (4th Cir. 1983), cert.

denied, 467 U.S. 1205 (1984); Macktal v. Secretary of

Labor, 923 F.2d 1150, 1156 n.26 (Sth Cir. 1991). TWA

legally “had every right to use economic pressure’ in

furtherance of its objectives, however repugnant that may

have been to the Ozark pilots or ALPA. App., 18. The

courts below properly rejected plaintiffs’ attempt to dis-

avow their vote as the product of “coercion.” App.,

18-19, 53.”

10 Accord Anderson V. United Paperworkers, Int’l, 641 F.2d 574,

580 (8th Cir. 1981); Ackley v. Western Conf. of Teamsters, 958

F.2d 1463, 1472-73 (9th Cir. 1992); Acri v. International Ass’n of

Mach., 781 F.2d 1393, 1397 (9th Cir.), cert. denied, 479 U.S. 816

(1986) ; Deboles v. Trans World Airlines, 552 F.2d 1005, 1019-20

(3d Cir.), cert. denied, 434 U.S. 837 (1977); Ooley, 961 F.2d at

1304; Wood v. International Bhd. of Teamsters, Local 406, 807

F.2d 493, 502-03 (6th Cir. 1986), cert. denied, 483 U.S. 1006 (1987) ;

Self v. Drivers Local 61, 620 F.2d 439, 443 (4th Cir. 1980); see

Hines vy. Anchor Motor Freight, Inc., 424 U.S. 554, 572 (1976).

11 The dissent from the Seventh Circuit’s denial] of a rehearing

in bane nowhere even suggests that ALPA’s actions in the TWA-

Ozark transaction violated the DFR. App., 27-32.

17

Plaintiffs also cannot establish that ALPA caused them

injury when the record conclusively establishes, contrary

to Pet., pp. 4-5, 10, 21, 23, 24, that “TWA, not the

union, was applying the screws,” App., 18, and alone

made the decisions to transfer Ozark planes and furlough

Ozark pilots, supra, pp. 4, 7, 8; App., 50 (“economic pres-

sure applied by TWA”)—carrier decisions that were not

barred by merger policy, by the Wraparound Agreement

or by the Ozark-ALPA CBA.” Supra, pp. 3, 7, 8.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfuily submitted,

STEPHEN B. MOLDOF

Counsel of Record

MICHAEL L. WINSTON

COHEN, WEISS AND SIMON

330 West 42nd Street

New York, New York 10036

(212) 563-4100

Attorneys for Respondent

Air Line Pilots Association,

International

12 The continued efficacy of the Ozark-ALPA CBA following

finalization of the merger was, at the least, uncertain. See Fall

River Dyeing & Finishing Corp. V. NLRB, 482 U.S. 27, 40 (1987)

(successor “not bound by the substantive provisions of the prede-

cessor’s” CBA); Chicago, M., S.P. & P.R.R. Vv. RLEA, 658 F.2d

1149, 1174 (7th Cir. 1981) (same under RLA), cert. denied, 455

U.S. 1000 (1982). And, a transition agreement entered into by,

inter alia, representatives of the Ozark pilots expressly confirmed

that the Ozark CBA was extinguished. App., 18, 538,