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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 861

## Text

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,

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1107%3A4. Public record. Not legal advice.