Bensel v. Allied Pilots Ass'n

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

10-26-2004

Bensel v. Allied Pilots Assn Precedential or Non-Precedential: Precedential

Docket No. 03-3176

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Recommended Citation "Bensel v. Allied Pilots Assn" (2004). 2004 Decisions. Paper 162. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/162

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. PRECEDENTIAL Jerald R. Cureton, Esq. (Argued) H. Thomas Hunt, III, Esq. UNITED STATES COURT OF Anthony Valenti, Esq. APPEALS FOR THE THIRD CIRCUIT Tara Ann Mosier, Esq. Cureton Caplan 950B Chester Avenue Delran, NJ 08075 No. 03-3176 Counsel for Appellant Steven K. Hoffman, Esq. (Argued) LEROY BENSEL, individually and Edgar N. James, Esq. as representative of a class consisting James & Hoffman of former Trans World Airlines, Inc., 1101 17th Street, N.W. pilots employed by TWA Airlines LLC Suite 510 as of April 2001, Washington, DC 20036 Appellant James Katz, Esq. v. Jennings Sigmond 1040 North Kings Highway ALLIED PILOTS ASSOCIATION; Suite 300 TWA AIRLINES, LLC; Cherry Hill, NJ 08034 AIR LINE PILOTS ASSOCIATION; AMERICAN AIRLINES, INC. Counsel for Appellee Allied Pilots Association On Appeal From the United States Donald L. Havermann, Esq. (Argued) District Court for the District Harry Rissetto, Esq. of New Jersey Morgan, Lewis & Bockius (D.C. Civil No. 02-cv-02917) 1111 Pennsylvania Avenue, N.W. District Judge: Hon. Joseph E. Irenas Washington, DC 20004 Alfred J. Lechner, Jr., Esq. Argued July 12, 2004 Joseph A. Piesco, Jr., Esq. Morgan, Lewis & Bockius BEFORE: RENDELL, FISHER and 502 Carnegie Center VAN ANTWERPEN, Circuit Judges Princeton, NJ 08540 (Filed October 26, 2004) Counsel for Appellees TWA Airlines, LLC and American Airlines, Inc. Daniel M. Katz, Esq. (Argued) I of the Second Amended Restated Katz & Ranzman Complaint. 1015 18th Street, N.W. I. Facts Suite 801 Washington, DC 20036 As the material facts are generally not in dispute, the facts presented below Counsel for Appellee Air are taken in large part verbatim from the Line Pilots Association District Court’s opinion in this case. Additional facts are incorporated from the parties’ submissions and appendices. The Asset Purchase Agreement OPINION OF THE COURT __________ After several years of failing to VAN ANTWERPEN, Circuit Judge make a profit, on January 9, 2001, TWA entered into an agreement with Defendant- In this appeal of summary Appellee American whereby American judgment, Appellants challenge the order agreed to purchase the majority of TW A's of the District Court which granted assets following TWA's filing for Chapter summary judgment as to all Defendants- 11 bankruptcy protection. TWA made Appellees and dismissed all counts of such a filing the following day, January Appellants’ Second Amended Restated 10, 2001. As a condition of the purchase Complaint. Plaintiffs-Appellants (the agreement, American agreed to hire almost “Class”) are a group of airline pilots all of TWA's unionized employees formerly employed by Trans World provided that certain labor protective Airlines, Inc. (“TWA”). The gravamen of provisions in their various contracts were the Class’ complaints, which arise under eliminated. the Railway Labor Act (“RLA”), 45 One of those provisions concerned U.S.C. §§ 151 et seq., concern the the right of TWA's pilots to bring to imposition of a seniority integration arbitration issues of seniority integration in agreement resulting from American the event of a purchase of TWA or merger Airlines, Inc.’s (“American”) purchase of of TWA with another airline. American TWA’s assets and the hiring of the Class indicated that it would not proceed with its by American’s subsidiary, TWA Airlines, purchase of TWA unless this labor LLC (“TWA-LLC”). For the reasons protective provision, known as Allegheny- explicated below, we reverse-in-part and Mohawk rights, was eliminated. TWA’s affirm-in-part the Order of the District pilots were represented by Defendant- Court, and remand to provide the Class Appellee ALPA through its TWA Master and the Air Line Pilots Association (“ALPA”) an opportunity to conduct discovery on the claims asserted in Count 2 Executive Council (“TWA M EC”) unit.1 order withdrawing the section 1113 motion Under American’s collective bargaining and formalizing the waiver agreement.2 agreement with its pilots, represented by D e f e n d a n t-A ppellee All i e d Pilots The ALPA / TWA-LLC Association (“APA”), the seniority of any Transition Agreement new pilots who began working for American, as a result of an acquisition by On April 9, 2001, ALPA and the American, would begin to accrue only at TWA MEC entered into a transition the moment that the pilots began working agreement with TWA-LLC. Upon for American. completion of the asset purchase by American, TWA-LLC would become a The Waiver Agreement wholly owned subsidiary of American. The TWA MEC resisted waiving its Under that transition agreement, the seniority protection provisions, and on majority of the provisions of the collective March 15, 2001, TWA filed a motion bargaining agreement between ALPA and under 11 U.S.C. § 1113 with the TWA would remain in effect until such Bankruptcy Court seeking to abrogate the time as the National Mediation Board provisions in its collective bargaining (“NMB”) adjudicated TWA-LLC and agreement with ALPA. In response, on American as a “single carrier” and April 2, 2001, the TWA MEC passed a extended APA’s certification to cover the resolution waiving its seniority protection TWA-LLC pilots (comprising the Class). provisions in exchange for a letter from The transition agreement incorporated by American in which American promised to reference American’s promise to use its “use its reasonable best efforts” with APA reasonable best efforts to ensure a fair to “secure a fair and equitable process for seniority integration process. In addition, the integration of seniority” and to adopt ALPA would continue to remain the the procedures that result from facilitated exclusive representative of the TWA-LLC meetings between APA and ALPA. pilots until the NMB made the appropriate Significantly, any seniority integration declarations. The next day, on April 10, agreement reached between APA and 2001, American’s purchase of TWA’s ALPA was to be presented to American as a proposed modification of the collective bargaining agreement between American 2 There is a great deal of uncertainty as and APA. On April 6, 2001, the to what the result might have been if Bankruptcy Court entered a stipulation and American had gone through with its purchase of the TWA assets without ALPA waiving its seniority integration 1 Some members of the class of protections. Of course, it was precisely Plaintiffs in this case were also members this uncertainty that most likely influenced of the TWA MEC. American to request the waiver by ALPA.

3 assets was finalized and TWA-LLC began objection to APA certification submitted operations as a separate air carrier. At that by TWA MEC, the NMB certified APA as point, almost all TWA pilots became the sole bargaining agent for all American employees of TWA-LLC. pilots. As a result, the April 9, 2001 TWA-LLC/ALPA transition agreement Seniority Integration Process expired (by its own terms), ALPA’s Between at least February and certification as the collective bargaining August of 2001, the TWA MEC and APA agent for the TWA-LLC pilots terminated, negotiated with each other over seniority and Supplement CC became effective. integration under the auspices of a Arbitration Proceedings facilitator provided by American. No agreement was reached between the Following execution of Supplement parties. On November 8, 2001, APA and CC, ALPA pursued a grievance against American reached an independent American and arbitrated before a System agreement on seniority integration of the Board of Adjustment, alleging that former TWA pilots, known as Supplement American violated the promise it made to CC. Under Supplement CC, some TWA ALPA in the letter it wrote concurrently pilots did receive credit for their seniority, with the April 2, 2001 waiver agreement. and certain captains and first officer The grievance alleged that American did positions were guaranteed for former not use its “reasonable best efforts” to TWA pilots at the remaining pilot base for protect the TWA-LLC pilots’ seniority TWA-LLC pilots, in St. Louis, Missouri. protections, as it had agreed to do in its Supplement CC was not to become letter. Through the arbitration, ALPA effective until the NMB declared sought the nullification of Supplement CC. American and TWA-LLC to be a single The arbitrator, in a decision dated April carrier and extended the APA’s 18, 2002, rejected the grievance and found certification. TWA MEC refused to sign for American. Supplement CC. Summary of Relevant Dates NMB Proceedings For purposes of clarity, the dates On November 9, 2001, APA filed a mentioned in the foregoing discussion may petition with the NMB seeking the be summarized as follows: declaration of “single carrier” status. January 9, 2001: T W A e n t e rs i n to ALPA opposed this petition, but on March A sset Purchase 5, 2002, the NMB declared that TWA- Agreement with LLC and American were a “single carrier” American. for RLA purposes. On April 3, 2002, after ALPA declined to submit an application to become the bargaining representative for the combined pilot group, and despite the 4 April 2, 2001: TWA MEC passes a effective; transition resolution waiving agreement between its seniority TWA-LLC and protection provisions ALPA expires. in exchange for April 18, 2002: A r b i t r a t o r re j e c ts A m e r i c a n ’ s ALPA’s allegation “ r e a s o n a b le b e st that American did efforts” promise. not use its April 9, 2001: ALPA and TWA “ r easo nable b e s t M EC enter into efforts” to protect the transition agreement TWA-LLC pilots’ with TWA-LLC. seniority integration, as promised in its April 10, 2001: American’s purchase letter. of TWA ’s assets finalized; TWA-LLC September 3, 2002: Class action initiated begins operations as by former TWA a separate air carrier. pilots. November 8, 2001: Am erican and APA January 27, 2003: Clas s file s S e co nd execute Supplement Amended Restated CC, an agreement Complaint. governing the Procedural Posture seniority integration of the former TWA On September 3, 2002, this class pilots. Supplement action was initiated by filing a complaint CC is subject to two notwithstanding a prior action by APA. c o n d i t i o n s Pursuant to a series of consent orders subsequent. agreed to by all parties, the parties were realigned in their present form. The Class March 5, 2002: N M B declares that filed a Second Amended Restated American and TWA- Complaint against the four Defendants on LLC are a “single January 27, 2003. The District Court’s carrier” for RLA order dismissing the original action purposes. preserved the original filing dates for April 3, 2002: NM B certifies APA statute of limitations purposes. as the sole II. Jurisdiction bargaining agent for all pilots, making Appellate jurisdiction is proper Sup plement CC pursuant to 28 U.S.C. § 1291 . The District 5 Court had subject matter jurisdiction under entitled to judgment as a matter of law.”

28 U.S.C. §§ 1331 , 1367. Fed. R. Civ. P. 56(c). “In reviewing the grant of summary judgment, we must III. Standard of Review affirm if the record evidence submitted by All four Defendants filed motions the non-movant ‘is merely colorable or is to dismiss on all claims asserted against not significantly probative.’” See Port them. The District Court elected to treat Auth. of New York & New Jersey v. these motions as summary judgment Affiliated FM Ins. Co., 311 F.3d 226 , 232 motions.3 (3d Cir. 2002). This Court has plenary review of Under this standard of review, if the District Court’s decision to grant there is a material issue of fact about when summary judgment. See Blair v. Scott the statute of limitations period began to Specialty Gases, 283 F.3d 595, 602-03 (3d accrue, then the District Court’s granting Cir. 2002). We apply the same standard as of summary judgment was improper. used by the District Court. Id. A grant of IV. Analysis summary judgment is appropriate “if the pleadings, depositions, answers to Count I interrogatories, and admissions on file, Count I of the Second Amended together with the affidavits, if any, show Restated Complaint asserts against ALPA that there is no genuine issue as to any a series of breaches of its duty of fair material fact and that the moving party is representation under the RLA. The District Court found these claims to be 3 time-barred, or alternatively, that they Notwithstanding the District Court’s failed to state claims upon which relief characterization of Defendants’ motions as could be granted. As explained below, motions for summary judgment, the however, it follows from application of the District Cou rt dism issed du ty of rays of hope doctrine that Appellants’ representation claims asserted against claims did not accrue until April 18, 2002, ALPA for failure to state a claim. To the the date the arbitrator of the System Board extent we treat ALPA’s motion as a of Ad justment de nied A ppella nts’ motion to dismiss, our review is plenary. challenge to American’s execution of its Felice v. Sever, 985 F.2d 1221, 1226 (3d “best efforts” promise, or at the earliest, Cir.), cert. denied, 509 U.S. 923 , 113 S.Ct. April 3, 2002, the date Supplement CC 3038 (1993). Plaintiffs-Appellants have became effective. Because the Class filed noted in their brief that the District Court its breach claims against ALPA within six failed to address their Rule 56(b) affidavit months of both of these accrual dates, the and failed to grant a Rule 56(f) claims were timely filed, and, if proven, continuance. That issue, however, is not s t a t e c l a im s w a r r a n ti n g r e l ie f . properly before us as Appellants did not Accordingly, we reverse the District Court base their appeal on that ruling.

6 and remand to permit the parties to discovered the acts constituting the breach proceed with discovery and provide the at any time before rays of hope were Class an opportunity to further explore its extinguished. See Childs, 831 F.2d at 436; breach claims. Miklavic, 21 F.3d at 556. A. Accrual of Claim Two significant policies underlie the view that, despite the employee’s It is undisputed that the statute of awareness of the union’s breach or the limitations for a duty of fair representation futility of further union action, the statute claim against a union under the RLA is six of limitations does not accrue while the months. Sisco v. Consolidated Rail Corp., union continues to represent the employee 732 F.2d 1188, 1193-94 (3d Cir. 1984). and proffers rays of hope regarding the As a general matter, a duty of fair latter’s claim. First, representation claim accrues and the six it is inefficient and unwise month limitations period commences when to compel an employee to “the futility of further union appeals sue his union in federal becomes apparent or should have become court while the union apparent.” Scott v. Local 863, Int’l continues, in good faith, to Brotherhood of Teamsters, Chauffeurs, pursue the employee’s Warehousemen and Helpers of America, claims and attempts to 725 F.2d 226 , 229 (3d Cir. 1984). If, remedy any past breach of however, a union purports to continue to its DFR. If the union can represent an employee in pursuing relief, indeed remedy the cause of the employee’s duty of fair representation t h e e m p loye e ’s claim against the union will not accrue so dissatisfaction, it should be long as the union proffers “rays of hope” allowed to do so, thus that the union can “remedy the cause of the obviating the federal judicial employee’s dissatisfaction.” Childs v. involvem ent.Childs, 831 Penn. Fed’n Brotherhood of Maintenance F.2d at 434. This policy is Way Employees, 831 F.2d 429, 434 (3d especially befitting in the Cir. 1987); see also Whittle v. Local 641, context of labor disputes, I n t’l B r otherhood of T eamste rs , w here Congress has Chauffeurs, Warehousemen and Helpers of evidenced its desire to America, 56 F.3d 487, 490 (3d Cir. 1995); resolve disputes through Miklavic v. USAir, Inc., 21 F.3d 551 (3d arbitration. Id. Second, Cir. 1994); Vadino v. A. Valey Eng’rs, requiring an employee to 903 F.2d 253 , 261 n.11 (3d Cir. 1990). In sue the union within six this context, it is irrelevant if the months of discovering the employees were aware of or with union’s breach puts the reaso nable diligence should have 7 employee in an untenable certification pending an investigation into position because “if he waits possible interference by American. to sue the union he may lose Success in any of these endeavors would the right to do so, but if he have prevented imposition of Supplement sues the union immediately CC, as the single carrier determination and he may antagonize the best e x t e n s io n o f c e r t if i c a ti o n w e r e possible champion of his prerequisites to its enforcement. Third, cause.” Id. at 435. had ALPA attempted to require American and TWA-LLC to negotiate with it the B. Application terms of the Class’ seniority integration, or Before applying the rays of hope attempted to challenge certification of doctrine to the instant scenario, we note APA as the certified collective bargaining that, contrary to the District Court’s and agent of the former TWA pilots as ALPA’s position, Supplement CC was not requested by the TWA MEC, or attempted the inevitable outcome of the April 2001 to seek representational rights of the waiver of Appellants’ Allegheny-Mohawk combined pilots before the NMB, or provisions. In other words, despite challenged Supplement CC directly, waiving an important labor protective actions that ALPA failed to take in provision, rays of hope remained that, with p u r p o r te d v i o l a t io n o f i t s f a ir appropriate continued representation by representation duty to the Class, a more ALPA, a more propitious seniority favorable integration agreement could agreement than Supplement CC could arguably have been implemented. Finally, have been obtained for the Class. First, because waiver of the contractual although concession of its Allegheny- Allegheny-Mohawk provisions did not Mohawk rights left the Class in an constitute a clear and unmistakable waiver admittedly weak bargaining position, the of statutory bargaining rights under the Class received in exchange for its waiver RLA, compare Gullickson v. Southwest American’s promise to use its “reasonable Airlines Pilots’ Ass’n, 87 F.3d 1176 (10th best efforts” to ensure “a fair and equitable Cir. 1996), Supplement CC was not the process for the integration of seniority.” foregone conclusion of the Class’ waiver. ALPA brought to arbitration the issue of Rays of hope were not automatically whether American adhered to its best extinguished by virtue of the Class’ waiver efforts promise. A favorable outcome of the Allegheny-Mohawk provisions. could have resulted in the invalidation of Indeed, Supplement CC itself did not Supplement CC. Second, ALPA endtail all of the former TW A pilots. submitted an opposition to APA’s 1. NMB Certification application to the NMB for a declaration of single carrier status, and ALPA, through Appellants argue that the statute of the TWA MEC, requested that the NMB limitations began to run no sooner than stay extension of APA’s representational April 3, 2002, when ALPA lost 8 representational rights and when and ALPA would have remained in effect Supplement CC became binding and at least until renegotiation with ALPA, and effective. further bargaining on the issue of seniority negotiation would have occurred. Thus, This Court has applied the rays of rays of hope remained at least until these hope analysis in the absence of any conditions subsequent were satisfied, arbitration proceeding. Our discussion of r e nde r ing e f f e c tive an d bin din g the doctrine makes obvious that its Supplement CC, a nd ALPA lost supporting principles are not inherently representation rights as the Class’ dependent on the presence of an arbitration bargaining agent. proceeding. An arbitration proceeding is merely illustrative of one way in which a Rays of hope had to extend until at union can proffer rays of hope that it will least April 3, 2002, when the NMB obtain the relief the complaining employee certified APA as the sole bargaining agent desires in spite of a breach of its duty of for all American pilots. As suit was filed fair representation. We have also applied on September 3, 2002, the action was the rays of hope doctrine to a union’s timely. We do not rest solely upon the attempted renegotiation of the terms of a April 3, 2002 date because, as discussed collective bargaining agreement with the below, we believe that rays of hope employer on behalf of its members. extended until April 18, 2002, when the Although the alleged breach of the duty of adverse arbitration decision was rendered. fair representation occurred during these 2. The Arbitration Proceeding negotiations, we found that the employees’ potential cause of action against the union Where a union represents the did not accrue until the union was employee in an arbitration proceeding and decertified, for only then “were the rays of proffers rays of hope concerning the hope extinguished.” Miklavic, 21 F.3d at possibility of success in spite of its breach, 556. this Court has held that the employee’s cause of action does not accrue until the Although Supplement CC was arbitration board denies the employee’s executed on November 8, 2001, it was an claim. Childs, 831 F.2d at 436 ; Whittle, a g r e e m e n t subje ct to co ndit i o ns 56 F.3d at 490 . Although forcing a subsequent-namely, that the NM B would plaintiff to delay pursuing a meritorious render a single carrier determination and duty of fair representation claim during designate APA as the certified collective fruitless representation by the union until bargaining agent for all pilots. As stated the arbitration or grievance board issues its earlier, ALPA and TWA MEC formerly final decision sacrifices the policy of opposed these determinations before the avoiding futile administrative procedures, NMB. Had any of these conditions this Court has determined that this policy subsequent failed to transpire, the is outweighed by the important federal transition agreement between TWA-LLC 9 policies of deference to arbitration, ALPA’s attempt to distinguish avoidance of unnecessary lawsuits and Childs and Whittle on the basis that the certainty as to when the statute of breaches of the duty of fair representation limitations commences. Childs, 831 F.2d asserted against the unions in those cases at 436 n.3. involved the unions’ conduct during the grievance proceeding or arbitration Pursuant to this approach, the proceeding is unpersuasive. Although Class’ claims against ALPA accrued when both cases arise in that posture, the the adverse arbitration decision was reasoning espoused in Childs and Whittle rendered on April 18, 2002. The instant justify its application to situations where action was filed on September 3, 2002, the union breach occurs outside the within six months of accrual. context of the arbitration proceeding itself. In the instant case, ALPA pursued Indeed, the instant suit represents such an an arbitration against American on behalf example. While the breaches asserted of the former TWA pilots in an effort to against ALPA are unrelated to its conduct establish that American did not fulfill its during the arbitration, a favorable arbitral promise to use reasonable best efforts to outcome would have remedied those ensure a fair seniority integration process. breaches, as described above. As such, the In instituting the grievance, ALPA sought polices supporting our reasoning in Childs to prevent enforcement of Supplement CC. and Whittle-- that unnecessary federal Thus, a successful arbitral outcome would litigation should be avoided, that have remedied and/or rendered moot administrative procedures should be given ALPA’s supposed breaches. Had “full play,” and that an employee should Supplement CC been invalidated, ALPA be spared the “Hobson’s choice between could have pressed American and TWA- letting the statute of limitations run and LLC to bargain directly with it concerning antagonizing his best advocate” Childs, a seniority integration agreement for the 831 F.2d at 436 --are unquestionably Class. Furthermore, Supplement CC’s furthered here. Moreover, it is significant abrogation would have rendered moot that this Court has applied the rays of hope Appellants’ assertions that ALPA violated analysis in the absence of any arbitration its duty of fair representation through its proceeding in Miklavic. Therefore, we failure to seek representational rights of refuse to adopt such a narrow the combined pilot group before the NMB, interpretation of this precedent when the its failure to challenge certification of policies founding them are undoubtedly APA as the certified collective bargaining furthered in circumstances that differ from agent of the former TWA pilots as those decisions’ exact factual postures. requested of them by the TWA-MEC, and It is of no moment that the its failure to take action to challenge arbitration proceeding did not specifically Supplement CC. challenge the April 2001 waiver agreement 10 and was unrelated to any supposed Accordingly, we hold that coercion of TWA MEC by ALPA to Appellants’ breach of the duty of fair forfeit the Allegheny-Mohawk provisions representation claims against ALPA did in violation of its fair representation duty. not accrue until April 18, 2002. We recognize that Appellants must have We briefly address and dispose of realized the general implications of ALPA’s position. ALPA posits that the w a i v i n g t h e A l l eg h e n y -M o h a w k six- month statute of limitations on a duty provisions at the time they agreed to do so. of fair representation claim challenging a It may be true that ALPA’s continued collectively bargained agreement begins to representation of the Class through run immediately upon execution of that arbitration could not have ameliorated the agreement. Relying primarily on Local C lass’ weak b argain ing p ositio n Lodge No. 1424 v. National Labor occasioned by that waiver. Rays of hope Relations Board, 326 U.S. 411 , 415-417, nonetheless apply to ALPA’s alleged 80 S.Ct. 822 (1960), ALPA asserts that conduct in the context of forcing this this rule bars a legal challenge to both the waiver upon the Class. The Class could April 2, 2001 waiver agreement that was not have appreciated or predicted the full subsequently memorialized in the ramifications of this waiver until at the Stipulation and Order of the Bankruptcy earliest when Supplement CC became Court on April 6, 2001, and all the effective and binding. Again, Supplement additional duty of fair representation CC was not the waiver’s inescapable breaches alleged in the Second Amended result. Moreover, and perhaps more Restated Complaint which ALPA contends significantly, forcing the Class to were the inevitable result of the initial challenge ALPA within six months of the waiver, because those claims accrued no waiver would have placed the Class in the later than April 6, 2001. Local Lodge is untenable position of antagonizing the distinguishable in a very important respect. union that continued to represent them in It rejected the premise that a collective an effort to acquire the most advantageous bargaining agreement that contains a union seniority integration possible. This security clause valid on its face, but which concern represents a fundamental basis of was entered into when the union did not the rays of hope doctrine. There are good have majority status, gives rise to two reasons for having a statute of limitations, independent unfair labor practices, one and we emphasize that the rays of hope being the execution of the agreement, the doctrine is not open-ended. The fact other arising from its continued pattern may vary from case to case, but enforcement. Instead, the Supreme Court clearly there comes a point when a union held that can no longer be said to proffer rays of hope to an employee, and the rays of hope [w]here . . . [a] collective are extinguished. bargaining agreement and its enforcement are both 11 perfectly lawful on the face a l l eg a t i o n s c o n s t it u t e of things, and an unfair breaches independent of the labor practice cannot be initial waiver agreement, made out except by reliance this argum ent is not o n t h e fa c t o f t h e compelling. a g r e e m e n t ’ s o r i g in a l In any event, ALPA contends that unlawful execution, an event any challenge brought r e ga rdin g which, because of Supplement CC accrued no later than limitations, cannot itself be November 8, 2001, the date of its made the subject of an execution. Again, the cases relied upon by u n f a ir l a b o r p r a c t i c e ALPA in support of this view are complaint, . . . permitting materially distinguishable. In each case, resort to the principle that § the union being sued was the union that 10(b) is not a rule of entered into the challenged agreement. As evidence, in order to convert such, the employees pressing duty of fair what is otherwise legal into representation claims against the union something illegal, would were already bound by the agreement in vitiate the po licies issue at the time that agreement was either underlying that section. 362 entered into or ratified. Those plaintiffs U.S. at 419 (emphasis suffered a definitive injury upon the date added). This reasoning of execution or ratification. See United applies to bar Appellants’ Indep. Flight Officers v. United Air Lines, claims in the instant suit Inc., 756 F.2d 1262 (7th Cir. 1985) (initial only if one accepts the injury occurred when the union failed to p r o p o s i ti o n t h a t t h e reach an agreement with employer and a limitations period associated subsequent injury occurred when the with ALPA’s initial breach agreement was signed); Gvozdenovic v. accrued on April 6, 2001, United Air Lines, Inc., 933 F.2d 1100 (2d and the subsequent alleged Cir.) (incoming flight attendants were breaches are all already employed, members of the union, “inescapably grounded,” and thus bound as of the date offending 362 U.S. at 422 , in the agreement was ratified), cert. denied, 502 initial breach. Because U.S. 910, 112 S.Ct. 305 , 116 L.Ed.2d 248

Supplement CC was not the (1991). Significantly, Gvozdenovic found inevitable result of the that the statute of limitations ran not from w ai v e r a g r e eme nt, a s when the agreement was entered into, but described in connection with from when it was ratified (and presumably our “rays of hope” analysis, effective). 933 F.2d at 1106 . In contrast, and because the subsequent although Supplement CC was executed on fair representation 12 November 8, 2001, it did not purport to amendment of a pleading bind the Class until its conditions relates back to the date of subsequent were satisfied. This occurred the original pleading when on April 3, 2002, when the NMB certified .... APA as the bargaining representative for the Class. Indeed, the actions that the (2) the claim or defense Class asserts ALPA failed to pursue in asserted in the amended violation of its duty of fair representation pleading arose out of the may have invalidated Supplement CC or conduct, transaction, or prevented its application to the Class. occurrence set forth or attempted to be set forth in 3. Relation Back the original pleading.In Given our determination that the accordance with the general Class’ claims against ALPA accrued on t h e o r y o f li b e ra l i ze d April 18, 2002, Appellants’ claims are pleading in the federal timely filed. Appellants initiated a class system, Rule 15(c) is action against ALPA on September 3, premised on the notion that 2002, within the prescribed six-month a party is not entitled to the limitations period. ALPA counters that, protection of the statute of with the sole exception of allegedly limitations based upon the coercing the Class into waiving the later asserti on by Allegheny-Mohawk provisions, th e amendment of a claim or additional purported breaches of its fair defense that arises out of the representation duty are time-barred same conduct, transaction, nonetheless because they were not alleged or occurrence set forth in the until the Class’s Second Amended t i m e l y f i l e d o r i g in a l Restated Complaint, filed on January 27, pleading. 6A Wright, Miller 2003. This is approximately nine months & Kane, Federal Practice & following accrual of the Class’s breach Procedure § 1496 (2d ed. claims. As explained below, ALPA’s 1990). Thus, amendments argument is unavailing because the breach that restate the original claims specifically enumerated in the claim with greate r Second Amended Restated Complaint particularity or amplify the relate back to Appellants’ original f a c t u a l c i rc u m st a n c e s Complaint pursuant to Fed. R. Civ. P. surrounding the pertinent 15(c)(2). conduct, transaction or occurrence in the preceding Fed. R. Civ. P. 15(c) provides: pleading fall within Rule (c) Relation Back of 15(c). See, e.g., Clipper Amendmen ts. An Exxpress v. Rocky Mt.

13 Motor Tariff Bureau, Inc., f a c i li t a te d d i s c u s si o ns 690 F.2d 1240 , 1259 n.29 between ALPA and APA, (9th Cir.), cert. denied, 459 the arbitration proceeding U.S. 1227, 103 S.Ct. 1234 , brought by ALPA, and the 75 L.Ed.2d 468 (1982). In negotiation and essence, application of Rule implementation of 15(c) involves a search for a Supplement CC. The Class’ common core of operative breach allegations focus on facts in the two pleadings. ALPA’s coercive role in As such, the court looks to forcing the Class to waive whether the opposing party its labor p rotectiv e has had fair notice of the provisions, but further general fact situation and charge ALPA with breach legal theory upon which the generally. These allegations amending party proceeds. are painted with a broad See, e.g., Michelsen v. brush, and can easily be read Penney, 135 F.2d 409 , 416- to encompass the more 17 (2d Cir. 1943) (“[T]he particularized claims that original complaint clearly appear in the Second gave defendant notice that Amended Restated he would be held for all acts Complaint. For example, of negligence . . . . the original Co mplaint [D]efendant was bound to broadly avers that realize that he would be held Appellants’ claims stem for every possible act of from ALPA’s actions in mismanagement.”). It is causing the class to lose its clear that the Class’ Second seniority rights. By virtue Amended Restated of the series of events Complaint merely expounds drafted in the original upon and further details the Complaint, ALPA was factual scenario and breach unquestionably on notice claims that were roughly that it would be held liable sketched in its original for every possible breach of Complaint. The original its fair representation duty Complaint outlines in broad occasioned by the outlined terms the events facts. The additional surrounding the Asse t purported bre a c h es Purchase Agreement, the particularized in the Second waiver agreement, the best Amended Restated effo rts prom ise, the Complaint derive directly 14 from the factual In finding that these allegations failed to circumstances adumbrated state a claim for relief, the District Court in the original Complaint. relied on Dycus v. NLRB, 615 F.2d 820 T h is co n c l u s io n is (9th Cir. 1980). The Ninth Circuit’s buttressed by the lack of any opinion in Dycus, which involved a resulting disadvantage or discharged employee’s petition for review prejudice to ALPA, who by of an order of the NLRB dismissing an virtue of the original unfair labor practice complaint issued Complaint was undoubtedly against two union locals, concurred with aware of general fact the Board’s statement that “Local 598's situation and legal theory withdrawal as bargaining agent did not upon which the Class sought constitute a breach of the duty of fair to hold it liable. representation.” Id. at 826 n.2. Dycus, however, does not stand for the The breach claims which the Class proposition that a union’s withdrawal as a asserted by amendment arose out of the bargaining agent never constitutes a breach same “conduct, transaction or occurrence of the duty of fair representation. The set forth . . . in the original pleading,” and withdrawal must be done in good faith and therefore under Rule 15(c) of the Federal for a proper purpose. “An exclusive Rules of Civil Procedure the amendments bargaining agent may avoid its statutory relate back to the date of the original duty to bargain on behalf of the unit it complaint. Consequently, Appellants’ represents by unequivocally and in good claims charging ALPA with breaches of its faith disclaiming further interest in duty of fair representation are timely. representing the unit. A disclaimer will C. Failure to State a Claim not be given effect . . . if it is made for an improper purpose . . . .” Id. at 826 (internal The District Court alternatively citations omitted). Because Appellants dismissed four of Appellants’ breach of aver that ALPA faced a conflict of interest the duty of fair representation claims for in representing the former TWA pilots failure to state claims upon which relief arising from an active organizing can be granted. For the following reasons, campaign to bring American pilots into we reverse. ALPA with the knowledge and approval of The District Court treated together APA, it is premature to dismiss these duty Appellants’ allegations that ALPA of fair representation claims at this time. breached its duty of fair representation by If Appellants prove their allegations that failing to seek representational rights of ALPA failed to take specific actions on the combined pilot group before the NMB, behalf of its members for an improper and by failing to challenge certification of purpose or in bad faith, they may obtain APA as the collective bargaining agent for relief for ALPA’s breach of its fair the combined pilot group before the NMB. representation duty.

15 Next, the District Court determined was not executed until November 8, 2001. that ALPA’s alleged failure to challenge As such, ALPA had the right under the Supplement CC following its approval on RLA to negotiate with at least TWA-LLC November 8, 2001 failed to state a claim until March 5, 2002, when the NMB for relief. Specifically, the District Court rendered its single carrier determination, found there to be no duty of fair and thereafter with American until representation right of one union to ALPA’s representational rights were challenge an agreement legally signed by extinguished on April 3, 2002. Appellants another union and its employer. In other thus state a viable claim. words, ALPA’s decision not to file a futile For the foregoing reasons, we challenge to Supplement CC cannot reverse the District Court’s opinion on legally constitute a duty of fair Count I of the Second Amended Restated representation breach. In Air Line Pilots Complaint and remand to permit the Ass’n v. UAL Corp., 874 F.2d 439 (7th parties to engage in discovery. It is our Cir. 1989), United’s pilots, represented by belief that at this stage of the proceedings ALPA, brought a suit against United and Plaintiffs should be given a fuller United’s machinists union, complaining opportunity for discovery relating to Count that United entered into a collective I and permitted to ascertain if there is any bargaining agreement with the machinists’ factual support for their claims. At this union to change the pilots’ terms of point we ask “not whether a plaintiff will employment without bargaining over the ultimately prevail but whether the claimant change with the pilots. The Seventh is entitled to offer evidence to support the Circuit held that the particular disputed claims.” Scheuer v. Rhodes, 416 U.S. 232 , provision in United’s collective agreement 236, 94 S.Ct. 1683 , 40 L.Ed.2d 90 (1974), with the machinists’ union violated the overruled on other grounds, Harlow v. Railway Labor Act. ALPA attempts to Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , distinguish this case by noting that it did 73 L.Ed.2d 396 (1982). It may be that not involve an airline merger, and more ALPA properly carried out its duty of fair importantly, that it did not address the representation and there was nothing issue of whether a carrier–American or ALPA could realistically accomplish under TWA-LLC–must bargain with a union–in difficult circumstances. But it is too early this case ALPA–that does not represent to decide this issue at this point. any of its employees. It is undisputed that in UAL Corp., the machinists and pilots Count II were all employees of United. This latter A. Alleged Breaches of the Duty of distinction, however, ignores the fact that Fair Representation by APA Appellants became employees of TWA- Prior to April 3, 2002 LLC as of April 9, 2001, and TWA-LLC continued to exist as a wholly owned Count II of the Second Amended subsidiary of American. Supplement CC Restated Complaint asserts against APA a 16 number of purported breaches of the duty Appellants argue that when two employee of fair representation committed prior to groups are combined, the duty of fair April 3, 2002. The District Court found representation arises from the inclusion or that the APA owed no duty of fair impending inclusion within the bargaining representation to the Class prior to April 3, unit that the integration process seeks to 2002, and accordingly dismissed these create. The cases relied upon by claims. We agree with the District Court Appellants, however, do not support this and affirm for the following reasons. contention. With one exception that is not applicable in the present case, none of the A union has the statutory duty to cases cited by the Class stand for the represent all members of the appropriate proposition that a union’s duty to a group bargaining unit fairly. See Humphrey v. of employees may attach before those Moore, 375 U.S. 335, 342 , 84 S.Ct. 363 , employees formerly enter the pertinent 11 L.Ed.2d 370 (1964). The scope of the bargaining unit. Instead, as explained d u t y o f f a i r re p r e s e nt a t io n i s below, the finding in each of these cases commensurate with the scope of the that the relevant union’s purported union’s statutory authority as the exclusive unlawful actions implicated a duty of fair bargaining agent. Accordingly, a member representation occurred in the context of of the bargaining unit has a cause of action plaintiffs-employees who were members against the union for breach of that duty. of the pertinent bargaining unit at the time Vaca v. Sipes, 386 U.S. 171, 186 , 87 S.Ct. the union took the allegedly unlawful 903, 17 L.Ed.2d 842 (1967). Conversely, actions. the union’s statutory duty of fair representation does not extend to those In Brotherhood of R.R. Trainmen v. persons who are not members of the Howard, 343 U.S. 768 , 72 S.Ct. 1022 , 96 pertinent bargaining unit. Allied Chem. & L.Ed. 1283 (1952), the case illustrating the Allied Workers v. Pittsburgh Plate Glass “exception” alluded to above, the Supreme Co., 404 U.S. 157 , 181 n.20, 92 S.Ct. 383 , Court held that a union may not use the 30 L.Ed.2d 341 (1971) (holding that powers accorded it under the law for the because retirees are no longer members of purposes of racial discrimination against the bargaining unit, the union has no duty employees who are not members of the to represent them in negotiations with the bargaining unit represented by the union. employer). In other words, exclusive The Supreme Court emphasized the representation is a necessary prerequisite narrowness and limited reach of this to the statutory duty to represent fairly. opinion in Allied Chemical: “But whatever Sipes, 386 U.S. at 177 . its theory, [Howard] does not require a union affirmatively to represent non- Recognizing the general principle bargaining unit members or to take into that a labor union’s statutory duty of fair account their interests in making bona fide representation extends only to the economic decisions on behalf of those bargaining unit it exclusively represents, 17 whom it does represent.” 404 U.S. at 181 incumbent flight attendants at United] n.20. Ind eed , Allie d C hemical “ratified the allegedly violative [seniority] unequivocally held that the bargaining agreement,” “the 1,202 incoming flight agent is under no statutory duty to attendants [from Pan American] already represent those not members of the had been working for United,” were bargaining unit in negotiations with the already members of the AFA, and thus employer. Id. Jones v. Trans World were part of the United bargaining unit to Airlines, Inc., 495 F.2d 790 (2d Cir. 1974), which the AFA owed the duty of fair involved two separate classes of Trans representation. 933 F.2d at 1106 . Bernard World Airlines employees--guards and v. Air Line Pilots Ass’n, 873 F.2d 213 (9th passenger relations agents--who performed Cir. 1989) concerned the merger of Jet many of the same functions. 495 F.2d at America and Alaska Airlines. Prior to the 793-94. Only the guards were represented merger, Alaska pilots were represented by by a union. Id. Relying on findings that ALPA, while Jet America pilots were the union “insist[ed] that the passenger unrepresented. Alaska Air Group, the relations agent jobs were in the guard unit” acquiring corporate parent of Alaska and that the passenger relations agents Airlines, operated Jet America and Alaska “had performed guard duties all along,” separately for several months, then the court held that the passenger relations announced it would merge the carriers. agents were de facto members of the guard ALPA negotiated with Alaska regarding bargaining unit. Id. at 797. The Second integration of the Jet America pilots with Circuit thus concluded that the union the Alaska pilots for purposes of seniority. breached its duty of fair representation by Despite repeated requests, Jet America discriminating against the passenger pilots were prohibited from partaking in relations agents based on their non-union the seniority discussions both prior to and status. Id. at 798. This Circuit has following the effective date of merger on characterized Jones as “stand[ing] for the October 1, 1987. An agreement between limited and undisputed proposition that ALPA and Alaska was not reached until discrimination against non-member October 6, 1987. In affirming the district employees who are part of the bargaining court’s finding that ALPA breached of its unit is impermissibly arbitrary if no duty of fair representation as to the Jet relevant distinctions exist between the America pilots, the Ninth Circuit noted union and non-union employees.” Deboles that there was no dispute that the non- v. Trans World Airlines, Inc., 552 F.2d union Jet America pilots had entered the 1005 (3d Cir. 1977) (emphasis added). Alaska pilots’ bargaining unit prior to Similarly, in Gvozdenovic v. United Air October 6, 1987, the date the agreement Lines, Inc., 933 F.2d 1100 (2d Cir.), cert. adversely affecting plaintiffs’ seniority denied, 502 U.S. 910 , 112 S.Ct. 305 , 116 rights was reached between ALPA and L.Ed.2d 248 (1991), “as of the date” the Alaska. 873 F.2d at 216 . AFA [the union representing the 18 The parallels between this case and representation. To the extent Howard, as that confronting the Ninth Circuit in clarified by Allied Chemical is an McNamara-Blad v. Ass’n of Professional exception to this rule, it not implicated Flight Attendants, 275 F.3d 1165 (9th Cir. here because the APA’s decision to 2002) are striking. In late 1998, American subordinate the seniority of most TWA- purchased 80% of Reno’s outstanding LLC pilots was a bona fide economic shares and announced it would merge the decision made to protect the interests of operations of the two airlines. Prior to American’s pilots, for whom APA did merger of the flight operations on August have a statutory duty to fairly represent. 31, 1999, APFA, the union representing Before the NMB consolidated the TWA- American’s flight attendants (the Reno LLC pilots into the American bargaining flight attendants were represented by unit on April 3, 2002, when it certified another union), reached a seniority APA as the exclusive bargaining agent, the integration agreement with American. pilots at American and the pilots at TWA- This agreement endtailed all Reno flight LLC belonged to different bargaining attendants, and was implemented as of units, each with its own exclusive August 31, 1999. In affirming the district bargaining representative. It is only court’s finding that, as a matter of law, the subsequent to April 3, 2002 that APA held Reno flight attendants were not in the a statutory duty to the Class. APFA’s bargaining unit and thus that the This outcome is supported from a APFA was not required to fairly represent policy perspective. Appellants contend them, the Ninth Circuit explained that that following the reasoning espoused in “[t]he work-forces of the two merging McNamara-Blad will enable unions to carrier become a single bargaining unit conspire and time events in a manner only when the carriers become a ‘single designed to avoid duties of fair carrier’ . . . American and Reno did not representation that would otherwise be b e co m e a ‘ s i n g l e c ar r ie r ’ f or owed to a group. In this case, had the representational purposes until August 31, Class become employed by American (as 1999, after the seniority agreement opposed to TWA-LLC) following closing between the APFA and American was of the merger, APA would most probably reached.” 275 F.3d at 1170 (internal have been the exclusive bargaining agent citations omitted). The analogies between for both the Class and American’s pilots McNamara-Blad and the instant case are and would have owed a statutory duty to obvious. both groups in negotiating seniority. To Contrary to the Class’ assertion, the avoid a statutory duty to fairly represent cases discussed above indicate that it is the Class, Appellants aver that APA and actual inclusion in the bargaining unit–not American created the fiction that the two “impending” inclusio n–that triggers groups of pilots were employed by a tt ac h m ent of the duty of fair different entities (American and TWA- 19 LLC) and that the Class was not part of the Count II of the Second Amended APA bargaining unit. This fiction enabled Restated Complaint further asserts that APA to unilaterally negotiate the Class’ APA breached its duty of fair seniority with American without the Class’ representation to the Class after April 3, input. Appellants allege that Supplement 2002 by failing to require American to CC was intentionally entered into by APA maintain the status quo as to the Class’ and American prior to APA’s petition to working conditions, including seniority. extend its certification to cover the Class In lieu of maintaining the status quo, to avoid the consequences of Bernard. Appellants allege that Supplement CC was Nevertheless, we agree with APA that the imposed without following the requisite Class’ allegations that ALPA breached its section 6 procedures of the RLA, 45 duties and conspired with APA to deprive U.S.C. § 156. The District Court the Class of valuable rights does not justify dismissed the allegations for failure to imposition of a fair representation duty on state breaches of the duty of fair APA prior to April 3, 2002. representation, either because the allegations are “too general in nature to Appellants’ conspiracy concerns, specify any actual DFR breach” or because while legitimate, run counter to an there was nothing for APA to negotiate on important competing policy articulated in behalf of the Class once Supplement CC McNamara-Blad. Adopting Appellants’ became effective. For the following position “would force unions to protect the reasons, we affirm. interests of any person who might become a bargaining unit member to the detriment The “status quo” provision of of current bargaining unit members. Such section 6 of the RLA directs that, while the a duty would contravene the union’s major dispute resolution procedures are statutory duty to protect the interests of its being followed, “rates of pay, rules or own bargaining unit members.” 275 F.3d working conditions shall not be altered by at 1173. In light of the fact that Appellants the carrier until the controversy has been do have a remedy against their former finally acted upon as required by [the bargaining agent, ALPA, this observation RLA]. . . .” 45 U.S.C. § 156 ; see also id. § outweighs Appellants’ concerns regarding 152, Seventh (“No carrier . . . shall change possible collusion and conspiracy. the rates of pay, rules, or working conditions of its employees . . . except in Because we agree with the District the manner prescribed in [collective Court that APA owed no duty of fair bargaining] agreements or in section 156 representation to the Class prior to April 3, of this title.”). The purpose of the status 2002, we affirm. quo provisions is to impose an obligation B. Alleged Breaches of the Duty of on the parties to make every reasonable Fair Representation by APA effort to negotiate a settlement. The Post-April 3, 2002 provisions promote compromise to avoid 20 strikes. See Detroit & Toledo Shore Line Appellants argue that the terms and R.R. Co. v. United Transp. Union, 396 conditions embodied in the TWA- U.S. 142, 148-49, 149 n.14, 90 S.Ct. 294 , LLC/ALPA transition agreement, which 24 L.Ed.2d 325 (1969). With respect to expired by its own terms on April 3, 2002 ascertaining what the appropriate status when the NMB extended APA’s quo conditions are, the Supreme Court has certification to cover the Class, constitute counseled that “the status quo extends to the status quo and should have continued those actual, objective working conditions in full force until the APA negotiated new out of which the dispute arose, and clearly terms with American, with the exception these conditions need not be covered in an of those limited terms which the parties existing agreement.” Id. at 153. As such, had previously agreed would change. The it is of no moment if the relevant collective transition agreement does not provide that bargaining agreement upon which the the Class would be bound to any dispute is based has expired. Because the agreement entered into between American status quo derives from the RLA, and not and APA upon determination of single contract, that agreement can still be used carrier status an d the tr ansitio n to inform the court’s status quo agreement’s expiration. determination. “[T]he inquiry is not one We agree that the Class never which looks to the parties’ collective waived its statutory rights under the RLA. bargaining agreements; instead, the act Section 6 of the RLA is not implicated, requires an objective determination of the h o w e v e r, beca use im positio n o f actual status quo.” Int’l Ass’n of Supplement CC upon on the Class on Machinists and Aerospace Workers v. April 3, 2002 did not constitute a change Aloha Airlines, Inc., 776 F.2d 812, 816 (9 th in the Class’ status quo. The facilitation Cir. 1985). Moreover, that the focus of the agreement, signed by ALPA, APA, TWA- status quo inquiry is on “actual, objective LLC and American, provides that, “in the working conditions” does not preclude the event that APA and ALPA reach an parties from entering into an explicit agreement on an integrated seniority list . agreement defining the specific conditions . . such agreement will be presented to that the parties want to constitute the status American as a proposed modification of quo during the appropriate renegotiation Section 13 of the collective bargaining period, even if such conditions differ from agreement between American and APA.” the actual, objective status quo. In other In essence, the status quo became a right to words, section 6 of the RLA does not a particular process and whatever result it prevent the parties from altering the actual, yielded. The facilitation agreement did not objective status quo by agreement. Airline explicitly detail what would occur in the Pilots Ass’n, Int’l v. Pan-Am. World event the two unions failed to reach an Airways, Inc., 765 F.2d 377 , 381 (2d Cir. agreement. Implicit in its arrangement, 1985). however, is that the Class would be bound 21 by the terms of the American-APA After the NMB declared USAir and collective bargaining agreement as those Shuttle to be a single transportation terms existed at the time the NMB system, extinguished TWU’s certification, extended APA’s certification as the and certified AFA as the bargaining bargaining representative for the entire representative for both Shuttle and USAir Class, whether or not such terms had been flight attendants, USAir insisted that the modified by an agreement struck between Shuttle employees were still covered by APA and ALPA. As such, Supplement the terms of the Eastern-TWU agreement CC provided the status quo terms for the until a new agreement is negotiated. AFA Class. This status quo determination is then filed suit against USAir, contending not, as Appellants argue, akin to finding a that the AFA-USAir agreement necessarily waiver of statutory rights. Instead, it establishes the terms and conditions to be illustrates that the Class’ statutory rights applied to Shuttle flight attendants until a were not in issue because there was no new agreement is negotiated. The D.C. modification of the status quo. Pursuant to Circuit held that the Eastern-TWU the facilitation agreement, the Class agreement fixed the status quo in the consented to be bound by the APA- bargaining relationship between USAir American collective bargaining agreement, and AFA on behalf of Shuttle flight including Supplement CC, upon the attendants. Consequently, the terms of that appropriate declarations by the NMB. agreement govern the working conditions of Shuttle flight attendants until USAir and Consideration of the terms of the AFA agree otherwise. The Circuit defined expired transition agreement does not alter the issue as follows: “whether, as a matter the analysis. With respect to the issue of of law, the Board’s termination of TW U’s seniority, the transition agreement did no certification simultaneously caused the more than rank the former TWA pilots vis- ‘status quo’ for Shuttle flight attendants to a-vis themselves. Indeed, it intentionally be changed so as to be defined by the excluded any reference as to what sort of terms in the AFA-USAir agreement rather seniority agreement would ensue upon a than in the Eastern-TWU agreement.” In determination by the NMB that TWA-LLC answering this in the negative, the court and American constituted a single made several observations pertinent to our employer. inquiry. The court pointed out that the While no case is directly on point, AFA-USAir agreement did not mandate Ass’n of Flight Attendants v. USAir, Inc., that its coverage be extended to new units 24 F.3d 1432 (D.C. Cir. 1994) lends of flight attendants. Significantly, the support to this position. In AFA, USAir court states that “there is no doubt that had assumed managerial control over AFA and USAir could have included some Shuttle’s flight operations. The USAir such clause in their agreement to cover pilots were represented by AFA, and the new units or groups of flight attendants Shuttle pilots were represented by TWU. added to the USAir transportation system.”

22 This observation implies that an incoming First. 4 Appellees claim that only a certified group would be bound by such a clause representative would have a right to bring despite not being provided any opportunity a cause of action under 45 U.S.C. § 152 , to bargain over the clause. In the case at First & Ninth. The Class advances two bar, the American/APA collective theories in asserting its right to bring a bargaining agreement, as supplemented by cause of action under these provisions. Supplement CC, did contemplate inclusion First, the Class argues that an implied right of Appellants. American and APA had in of action against American and TWA-LLC fact agreed upon the terms, including the is created in its favor by 45 U.S.C. § 152 , seniority terms, that would govern the Second & Ninth. Second, the Class combined pilot bargaining unit when the contends that its claims against American N M B issued a single empl oye r and TWA-LLC are properly brought as the determination and extended the APA’s “hybrid” claims pursuant to Childs v. representational certification to cover the Pennsylvania Federation Brotherhood of combined unit. The D.C. Circuit’s Maintenance Way Employees, 831 F.2d observations here are admittedly dicta, but 429 (3d Cir. 1987). The District Court lend support to the view that the status quo found that 45 U.S.C. § 152 , Second & provisions of the RLA are not implicated Ninth do not create an implied right of in this case. As such, Appellants’ claim action in favor of the Class and that the that APA breached its duty of fair Class had no standing to bring Counts III representation after April 3, 2002 by and IV against American and TWA-LLC. failing to enforce the Class’ status quo is We affirm the District Court’s dismissal without merit. on these grounds. 5 Accordingly, we affirm the District Court’s decision on Count II of the Second 4 Although the RLA does not state an Amended Restated Complaint. express duty to negotiate in good faith, this Counts III & IV duty is implied throughout section 152. While Appellants’ Second Amended Count III of Appellants’ Second Restated Complaint cites to section 152, Amended Restated Complaint charges First & Ninth, a duty to negotiate in good American and TWA-LLC with breach of faith is more clearly implicated in section the duty to treat with the Class’ certified 152, Second (“[a]ll disputes . . . shall be representative pursuant to 45 U.S.C. § 152 , considered, and, if possible, decided . . . in Ninth. Count IV avers that American and conference between representatives TWA-LLC each failed to negotiate in designated”). As explained in the text, good faith, pursuant to 45 U.S.C. § 152 , however, none of these provisions provide a private cause of action for Appellants. 5 Our disposition of Counts III and IV obviates the need to consider, as argued by 23 The RLA does not expressly grant U.S. 915, 97 S.Ct. 2177 , 53 L.Ed.2d 225

a private right of action to enforce its (1977); Beckett v. Atlas Air, Inc., No. 95- provisions. Although the legislative history 0480, 1995 WL 498703 (E.D.N.Y. Aug. of the RLA is silent on the issue of 14, 1995); Int’l Ass’n of Machinists and whether Congress intended to imply a Aerospace Workers v. Altair Airlines, Inc., private right of action under the RLA, see 481 F.Supp. 1359, 1360 (E.D. Pa. 1979). Texas & N.O.R. Co. v. Brotherhood of Ry. Implying a private cause of action for & S.S. Clerks, 281 U.S. 548 , 50 S.Ct. 427 , individual employees under 45 U.S.C. § 74 L.Ed 1034 (1930), “the failure of 152, Third & Fourth of the RLA is Congress expressly to consider a private appropriate given that those sections remedy is not inevitably inconsistent with prohibit carriers from discriminating an intent on its part to make such a remedy against employees in connection with available.” Transamerica Mort. Advisors, union organizing activities. See Int’l Inc. v. Lewis, 444 U.S. 11, 17 , 100 S.Ct. Ass’n of Machinists v. Northwest Airlines, 242, 62 L.Ed.2d 146 (1979). An intent to 673 F.2d 700, 707 (3d Cir. 1982). In imply a private remedy may lie implicitly Adams, however, the Sixth Circuit held in the language or structure of a statute. that “the Railway Labor Act confers no Id. The Supreme Court has promulgated implied right of action upon an uncertified factors for determining whether a private union to maintain a suit on behalf of remedy is implicit in a statute not employees it seeks to represent.” Adams, expressly providing one. Cort v. Ash, 422 547 F.2d at 322 (emphasis added). U.S. 66, 78, 95 S.Ct. 2080 , 45 L.Ed.2d 26 Furthermore, research has not revealed any (1975). cases where the federal courts have allowed individual employees to pursue Courts have found private rights RLA statutory claims outside of 45 U.S.C. under other provisions of 45 U.S.C. § 152 . § 152, Third & Fourth, except for duty of Applying the Cort v. Ash factors, many fair representation suits against a union. courts have implied a private right of action for individual employees within 45 In contrast to 45 U.S.C. § 152 , U.S.C. § 152, Third & Fourth of the RLA. Third & Fourth, 45 U.S.C. § 152 , Ninth & See, e.g., Roscello v. Southwest Airlines Second does not create a private right of Co., 726 F.2d 217, 220 (5th Cir. 1984); action for individual employees. In Adams v. Fed. Express Corp., 547 F.2d determining whether Appellants have an 319, 321 (6th Cir. 1976), cert. denied, 431 implied right of action under 45 U.S.C. § 152 , Ninth & Second of the RLA, we must employ the four factors set forth in Cort v. American and TWA -LLC, whether Ash, 422 U.S. 66 , 95 S.Ct. 2080 , 45 Appellants’ claims fail to state claims for L.Ed.2d 26 (1975), specifically focusing relief or pose a representational dispute on the first two factors: (1) whether subject to the exclusive jurisdiction of the plaintiff is a member of the class “for NM B.

24 whose especial benefit the statute was representative.” That the statute may enacted”; and (2) whether there is indicate a congressional intent to create a evidence of legislative intent to create or private cause of action for a duly certified preclude the relief sought. Id. at 78; see representative that is injured pursuant to Touche Ross & Co. v. Redington, 442 these provisions does not imply that U.S. 560, 575-76, 99 S.Ct. 2479 , 61 Congress intended to create a private right L.Ed.2d 82 (1979). Unlike 45 U.S.C. § of action for any group or groups of 152, Third & Fourth, which are directed individual employees claiming to act on specifically at the employer’s relationship behalf of the relevant employees. Cf. with employees, 45 U.S.C. § 152 , Ninth & Adams. Second are directed at the employer’s A number of additional factors r e l a t i o n s h i p w i t h t h e ce r t i f i e d militate against granting individual representative. 45 U.S.C. § 152 , Ninth of employees a right to assert claims under 45 the RLA provides that the NMB shall U.S.C. § 152, Second & Ninth. Allowing resolve “disputes as to who are the a group or groups of individual employees representatives of the employees to bring a cause of action under section designated and authorized in accordance 152, Second or section 152, Ninth of the with the requirements of this Chapter” and RLA would undermine the provisions’ to certify a designated union as bargaining purpose of providing for an organized agent. 45 U.S.C. § 152 , Ninth. It provides process of negotiation between one further that “upon receipt of such employee representative and the employer, certification the carrier shall treat with the and could lead to chaos. A bargaining representative so certified as the agent, as opposed to any of its individual representative of the craft or class for the members, is in the best position to bring purposes of this Chapter.” § 152, Ninth forth these types of grievances because a (emphasis added). 45 U.S.C. § 152 , union is required to act in the best interests Second of the RLA similarly provides that of all its principals. Moreover, and “[a]ll disputes between a carrier . . . and its im po rta nt ly, individ ual e m ployees . . . employees shall be considered, and, if claiming to be aggrieved by the failure to possible, decided, with all expedition, in treat or the failure to negotiate in good conference between repre sentatives faith already have a remedy–individual designated and authorized so to confer, . . employees may press a duty of fair . ” § 152, Second (emphasis added). repres enta tion claim again st th e We agree with the District Court appropriate representative(s), as was done that Appellants “are not within the by Appellants in this case, or the certified definition of the class that the statute was representative may bring a suit against the designed to protect” because “[t]he statute carrier. Pursuant to this analysis, does not state that the carrier must ‘treat’ Appellants as a class lack an implied with its employees, but rather with their private right of action to bring claims 25 asserting breaches of the duty to bargain proceed in federal court because he could and duty to negotiate in good faith against not obtain meaningful relief before the American and TWA-LLC because they are Board. not and have never been a certified Childs does not apply in this case. representative of the TWA pilots. To begin with, we expressly stated in The District Court did not address Childs that we were addressing “the rare the Class’ second theory in support of case in which the union, by breaching its federal standing in Counts III and IV--that DFR, effectively precludes the employee’s it could bring a “hybrid” claim under opportunity for obtaining relief before the Childs against American and TWA-LLC. NRAB.” 831 F.2d at 441 . Unlike Childs, the Class in the instant suit has not alleged In Childs, 831 F.2d 429 , a railroad that American and/or TWA-LLC breached employee brought suit in federal court a collective bargaining agreement. Childs charging his union with a breach of its also involved an employee’s loss of an duty of fair representation, and also express statutory right, whereas only an charging his employer with a breach of the implied right was claimed by the Class in collective bargaining agreement. Even the present case. M oreover, the stated goal though the claim against the employer of Childs was carrying out the RLA’s constitutes a “minor dispute” within the central policy of affording employees exclusive jurisdiction of the NRAB, 45 some fair and efficient means of redressing U.S.C. § 153, we held that an employee their grievances. This is not the situation may bring this claim against his employer in the present case. If a union breaches its in federal court. We held this because it duty of fair representation by failing to was alleged that the employee could not require a carrier to treat with it, as required obtain meaningful relief before the Board by section 152, Ninth of the RLA, an against the employer because the union’s individual employee’s remedy lies in a breach of its duty of fair representation had duty of fair representation action against precluded the employee from presenting the union, not a major dispute claim crucial evidence to the Board. We stated against the carrier. As noted, Appellants that “[o]ne important policy of the RLA . may proceed against ALPA in this case. . . is to afford employees means for relief. Therefore, courts have form ulated Because we hold that Appellants exceptions to the jurisdictional scheme of may not pursue the claims averred in the RLA where it appears that without Counts III and IV, the District Court’s such access to the federal courts the dismissal of these claims is affirmed. employee’s right to redress would be Counts V - IX jeopardized.” 831 F.2d at 437 . Thus, even though an employee would normally have In Counts V through IX of their to arbitrate a minor dispute before the Second Amended Restated Complaint, Board, the employee was permitted to Appellants allege state-law violations by 26 Appellees, which they plead in the Trainmen v. Jacksonville Terminal Co., alternative to their federal claims. Counts 394 U.S. 369 , 89 S.Ct. 1109 , 22 L.Ed.2d V and VI allege that American, TWA- 344 (1969). Under Garmon, state-law LLC, and APA engaged in tortious and causes of action are presumptively malicious interference and fraudulent preempted where they concern conduct misrepresentation with respect to the that is actually or arguably either protected collective bargaining agreement between or prohibited by federal labor relations ALPA and TWA. Appellants claim that as law. Pennsylvania Nurses Ass’n v. a result of the alleged interference and Pennsylvania State Educ. Ass’n, 90 F.3d misrepresentations, ALPA agreed to the 797, 801 (3d Cir. 1996). The two explicit waiver agreement to Appellants’ detriment exceptions to this preemption apply to a n d b r e ached i t s d u t y o f f a ir conduct “deeply rooted in local feeling and representation. Appellants proceed to responsibility” and to matters of only claim in Counts VII and VIII that “peripheral concern” to federal labor American and TWA-LLC breached the relations law. Garmon, 359 U.S. at 243- transition agreement by failing to use their 44. Despite the generally sweeping nature best efforts to secure a fair and equitable of Garmon preemption, the Supreme Court process for seniority integration. APA has recognized judicial responsibility to allegedly tortiously interfered with “determine the scope of the general rule by American and TWA-LLC’s contractual examining the state interests in regulating obligations under the transition agreement the conduct in question and the potential by causing them to breach. Finally, Count for interference with the federal regulatory IX alleges that American, TWA-LLC, scheme.” Farmer v. United Bhd. of APA, and ALPA conspired with the Carpenters and Joiners of Am., Local 25, common design of abrogating the TWA 430 U.S. 290, 297 , 97 S.Ct. 1056, 1062 , 51 seniority integration provisions and L.Ed.2d 338 (1977). endtailing the vast majority of TWA pilots A principal purpose of the RLA is in favor of the incumbent American pilots. to provide for the prompt and orderly The District Court dismissed Counts V settlement of all disputes over pay, rules, though IX as preempted by the RLA. or wor king c ondi t io n s a n d th e Appellants argue that the District interpre tation a nd application of Court erred in dismissing their state-law agreements concerning pay, rules, or claims against APA, American, and TWA- working conditions. RLA § 2, 45 U.S.C. LLC. The District Court’s decision relied § 151a. Appellants’ state-law claims all on the preemption doctrine established in involve alleged interference with their San Diego Building Trades Council v. employment rights as established by the Garmon, 359 U.S. 236 , 79 S.Ct. 773 , 3 various agreements that govern their L.Ed.2d 775 (1959), which was extended wages and other benefits as well as their to the RLA in Brotherhood of Railroad right to be fairly represented under RLA § 27 2, 45 U.S.C. § 152 . Thus the property District Court’s finding that APA owed no rights at issue are founded upon federal duty necessarily means that the RLA does law, derive their strength and protection not apply to this conduct. For support, from federal law, and exist to effectuate a Appellants rely on Krantz v. Air Line nationwide federal labor policy. See Pilots Association, International, 427 S.E. Wilkes-Barre Pub. Co. v. Newspaper 236 (Va. 1993), where the Virginia Guild of Wilkes-Barre, Local 120, 647 Supreme Court held that the RLA did not F.2d 372, 380-81 (3d Cir. 1981). preempt a job applicant’s right to sue a union for tortious interference with Having determined that Appellants’ pro spective em plo ymen t. Wh ile contractual rights are protected by federal expressing no opinion on the Krantz labor law, which satisfies the presumptive holding itself, Appellants’ situation is preemption of Garmon, we now consider distinguishable. The court in Krantz based whether any exception to this presumption its decision on the proposition that a job applies. The state-law claims alleged seek applicant “has no federally protected right” to protect Appellants’ rights as established to employment under the RLA. Krantz, through their collectively-bargained 427 S.E. at 329-30. Here Appellants seek agreements. Thus they do not concern to protect their rights in an existing conduct touching interests deeply rooted in employment relation as provided by the local feeling and responsibility. See relevant collective bargaining agreements Wilkes-Barre, 647 F.2d at 381 (holding and the statutory protections of the RLA. that tortious interference with a labor These rights stem from federal law, so contract is not conduct touching interests Krantz is inapposite. deeply rooted in local feeling and responsibility). Nor is this a matter of only The rights and duties of unions in peripheral concern to federal law. Clearly, carrying out their representational the process of seniority integration in the functions is an area where “the policy of event of an acquisition directly affects the the law is so dominated by the sweep of wages and other benefits of workers. The federal statutes that legal relations which RLA determines the rights, obligations, they affect must be deemed governed by a n d duti e s o f employees, the ir federal law having its source in those representatives, and carriers with respect statutes, rather than by local law.” Condon to negotiations and agreements concerning v. Local 2944, United Steelworkers, 683 such a central aspect of employment. F.2d 590, 594-95 (1st Cir. 1982) (quoting Thus, federal law is directly concerned Local 20, Teamsters Union v. Morton, 377 with the issues here. U.S. 252, 261, 84 S.Ct. 1253, 1259 , 12 L.Ed.2d 280 (1964)). The importance of Appellants argue that with respect uniform relations among employees, to their claims against APA, there can be unions, and employers may call for no preemption of state-law claims if APA preemption of state protections of federal owed no duty to them. They assert that the 28 rights, even where federal law does not limitation on the RLA’s scope. The RLA impose an analogous duty. See Kaufman covers “disputes between an employee or v. Allied Pilots Ass’n, 274 F.3d 197 (5th group of employees and a carrier or Cir. 2001) (holding airline passengers’ carriers by air” not merely disputes state-law claims against union preempted between a carrier and its own employees. by federal law, despite lack of equivalent RLA § 204, 45 U.S.C. § 184 . We thus remedy to passengers). Appellants’ relief believe that congressional intent was to for any violations of their contractual or submit such disputes to the RLA statutory rights must come in the manner resolution mechanisms. See Pyles v. prescribed by federal law. United Air Lines, Inc., 79 F.3d 1046, 1050-52 (11th Cir. 1996) (holding that Appellants argue with respect to the employees of one carrier may seek relief claims against American, that the RLA under the RLA for disputes with another cannot apply to the period of time for carrier). Preemption of the state-law which Appellants were not employed by claims is therefore appropriate, and American and thus the state-law claims Appellants’ argument must be rejected. cannot be preempted. Appellants rest their argument primarily on our decision in We conclude that Appellants’ state- Felice v. Sever, 985 F.2d 1221 (3d Cir. law claims seek to protect their contractual 1993). In Felice, we held that state-law rights negotiated under the auspices of the claims that did not implicate a collective RLA and not any independent state-law bargaining agreement covered by § 301(a) right. Cf. Hawaiian Airlines Inc. v. Norris, of the Labor Management Relations Act 512 U.S. 246, 260-61 , 114 S.Ct. 2239 , (LMRA) did not give rise to immunity of 2247-48, 129 L.Ed.2d 203 (1994) (finding union officials under § 301(b). In part, we a state whistleblower statute to provide an reasoned that because the plaintiff in that independent right not to be discharged). case was not covered by a collective Appellants’ state-law claims were properly bargaining agreement and thus not dismissed as preempted by the RLA. represented by a labor organization, § 301 V. Conclusion did not apply to the relationship between the parties and could not serve to preempt We reverse and remand on Count I state law. This case, though instructive, is of Appellants’ Second Amended Restated not directly applicable because it involves Complaint. We affirm the District Court’s provisions of the LMRA which have no dismissal of all remaining Counts of the corresponding provision in the RLA. Second Amended Restated Complaint. Appellants urge that the RLA and its arbitration provisions only apply to FISHER, Circuit Judge, dissenting. disputes between a carrier and its employees. However, the plain language I dissent because I disagree with the of the statute does not support such a majority’s analysis of Count I. I join the 29 majority’s affirmance of the remainder of waiver clearly and unmistakably included the claims on appeal. But I would affirm a waiver of the Class’ contractual right to the district court’s determination of the arbitrate seniority integration issues and untimeliness of the Class’ claims in Count their right to bargain over seniority after I asserting that the Air Line Pilots American’s purchase of TWA, any claim Association (“ALPA”) breached its duty of that ALPA breached its duty of fair fair representation (“duty”) under the representation to the Class accrued at that Railway Labor Act, 45 U.S.C. § 151 , et. time. seq. There were no rays of hope to A fundamental premise of the extend the accrual of the duty of fair majority opinion is that Supplement CC representation claims based on ALPA’s (the November 8, 2001 agreement between post-waiver actions or inaction. The American’s pilots and American regarding waiver and its attendant agreements (the seniority integration of former TWA pilots Transition Agreement between the Class and American’s pilots) was not the pilots and TWA, LLC and the “best inescapable result of the Class’ waiver of efforts” letter from American) eliminated Allegheny-Mohawk labor p rotective ALPA’s ability to effectively bargain with provisions in April of 2001. The subject either TWA, LLC or American for any of the scope of the waiver and whether it seniority integration different from that included the right to bargain over seniority which existed at the time of the waiver. integration post-purchase was precisely Because of the limitations these why American required the waiver of agreements imposed upon ALPA’s ability those rights as a condition precedent to its purchase of TWA’s assets out of bankruptcy. This was to avoid conflict between the collective ba rgainin g agreements applicable respectively to the American and TWA pilots regarding C.A.B. 22, 31-40 (1972). The collective seniority (which absent the waiver bargaining agreement between American c o n t a in e d irrecon cilable s eniorit y and its pilots (represented by the Allied provisions). 6 Because the April 2001 Pilots Association) contained a provision that pilots new to American due to the acquisition of another airline will not 6 The collective bargaining agreement begin to accrue seniority until they begin between TWA and its pilots contained working for American (endtailing). Allegheny-Mohawk labor protective Seniority governs rates of pay, flight provisions including the right to arbitrate schedules and routes, type of airplane seniority integration in the event of a flown, whether pilots fly as captain or first merger with another airline. See officer and their eligibility for furlough Allegheny-Mohawk Merger Case, 59 and recall.

30 to bargain with TWA, LLC 7 or American representation of TWA pilots both prior regarding seniority, any meaningful ray of and subsequent to American’s purchase of hope was extinguished. The only actions TWA out of bankruptcy. The Class that ALPA could take were collateral to contends that in April 2001, ALPA the real issue – a desire by the TWA pilots coerced the TWA Master Executive to get that which was waived in April 2001 Council into waiving the TWA pilots’ – the right to demand a fair and equitable contractual labor protective provision to seniority integration. Consequently, the arbitrate over seniority integration because claim that ALPA breached its duty of fair of ALPA’s alleged interest in organizing representation is untimely and the district the American pilots, who were then court’s grant of summary judgment should represen ted by the Allied Pilots be affirmed.8 Association. In its Second Amended Restated Complaint filed January 27, I. 2003, the Class pleaded for the first time The Class alleges in Count I that additional duty claims, all of which flow ALPA violated its du ty of fair from the waiver of the right to arbitrate representation relating to ALPA’s seniority integration. Those claims are that ALPA: (1) failed to require American 7 and TWA, LLC to negotiate the terms of TWA, LLC was the wholly-owned the seniority integration with ALPA while subsidiary of American that employed the ALPA remained the certified collective former TWA pilots upon American’s bargaining agent for the Class; (2) failed to purchase of TW A’s assets fro m take action to challenge Supplement CC bankruptcy. though the agreement was entered into to 8 control matters relating to rates of pay, Summary judgment arose in the rules and working conditions of the Class context of the Appellees’ motion to and was entered into with other than dismiss the second amended class ALPA as the Class’ collective bargaining complaint pursuant to Rule 12 (b)(6) of the agent in violation of the Railway Labor Federal Rules of Civil Procedure. Because Act; and (3) that ALPA permitted the parties relied on information outside American and TWA, LLC to require the the pleadings, the 12(b)(6) motion was TWA Master Executive Council 9 to converted to a motion for summary negotiate seniority integration with judgment. The Class filed a Rule 56(f) American’s pilots’s union, the Allied affidavit in opposition to the motion. However, that Affidavit did not provide with any specificity the information sought 9 to be discovered to defeat the pending TWA pilots were represented by motion. But the question of the propriety ALPA through the Master Executive of the conversion in light of the Rule 56 Council comprised of TWA pilots, motion is not before us. including some members of the Class.

31 Pilots Association. waiving their sen iority integration protections or fighting to retain them at the At the crux of the Class’ claims are risk of forcing TWA into liquidation. See the various agreements made on behalf of In re Trans World Airlines, Inc., 322 F.3d the TWA pilots in April of 2001 in relation 360 (3d Cir. 2000). In response to the to American’s purchase of TWA assets, motion, the TWA Master Executive which combined to prevent ALPA from Council resolved to waive the seniority negotiating seniority integration for the integration protections in exchange for former TWA pilots. A brief recitation of American’s assurances that it would “use the relevant agreements evidencing the its reasonable best efforts” with Allied scope of the waiver and events Pilots Association to “secure a fair and surrounding their execution is necessary to equitable process for the integration of frame the accrual analysis. seniority” upon the sale of TWA to II. American.10 On January 9, 2001, American TWA and its pilots’ Master Airline subsidiary TWA, LLC agreed to purchase TW A assets out of bankruptcy. 10 TWA’s January 10, 2001 filing for The letter by American to TWA bankruptcy protection was part of the Master Executive Council President planned acquisition by American. But an Robert Pastore provides: essential condition of American’s purchase of the TWA assets was that American, I understand that you wish to have which agreed to hire almost all of TW A’s confirmation o f A me r ican ’s unionized employees through its wholly- commitment on its part with respect owned subsidiary TWA, LLC, required the to process for resolving integration elimination of labor protective provisions of seniority. For its part American within TWA’s collective bargaining Airlines, Inc. (“American”) agrees agreements with its unions. Specifically, to use its reasonable best efforts American required the waiver of the right with its labor organizatio n of TWA pilots to arbitrate seniority representing the airline pilots craft integration in the event of a purchase of or class to secure a fair and TWA by another airline. equitable process for the integration of seniority. In that regard, TWA filed a motion in bankruptcy American will engage a facilitator court on March 15, 2001, pursuant to 11 to organize meetings with the labor U.S.C. § 1113 seeking to abrogate the organizations representing airline TWA-ALPA collective bargainin g pilots and American and TWA- agreement for the pilots’ refusal to forego LLC. American agrees to adopt the their seniority integration protections. The procedures that result from this TWA pilots were faced with the choice of process for seniority integration.

32 Executive Council subsequently entered any bargaining obligations under the into a Stipulation approved by the Railway Labor Act, TWA, LLC’s sole Bankruptcy Court on April 6, 2001. obligation shall be to confer with ALPA Pursuant to that Stipulation, TWA on all changes...” and provide those withdrew its section 1113 motion and was changes in writing. authorized to eliminate the seniority III. integration protections from its pilot’s collective bargaining agreement. The Claims for breach of the duty of fair terms of the Stipulation and the representation under the Railway Labor circumstances and import of the waiver of Act are subject to a six-month limitations seniority integration protections were period. Miklavic v. USAir, Inc., 21 F.3d echoed in the April 3, 2001 announcement 511, 556 (3d Cir. 1994); Sisco v. made to TWA pilots by Robert Pastore, Consolidated Rail Corp., 732 F.2d 1188

President of the pilot’s Master Executive (3d Cir. 1984) (applying DelCostello v. Council. Int’l Board of Teamsters, 462 U.S. 151, 158 (1983). The district court concluded On April 9, 2001, the Bankruptcy that the Class’ claims against ALPA for Court approved the sale of TWA’s assets, breach of the duty of fair representation resulting in the Class becoming employees accrued at the latest by April 6, 2001, of TWA, LLC. That same date, ALPA when the Stipulation waiving seniority and TWA, LLC entered into a “Transition integration rights was entered by the Agreement,” providing that ALPA would Bankruptcy Court. The court reasoned rema in the ex clusiv e bargainin g that since the resolution waiving seniority representative for the former TW A pilots integration rights was agreed to on April 2, until the National Mediation Board found 2001, and approved by the Bankruptcy American and TWA, LLC to be a single Court on April 6, 2001, the claims against carrier whose pilots were represented by ALPA, which were not filed until the Allied Pilots Association. By its terms September 3, 2002, clearly were beyond (set forth in Section 30), the Transition the six-month limitations period. In so Agreement was not amendable during the holding, the district court relied upon transition period and would expire upon Local Lodge No. 1424 v. National Labor National Mediation Board certification of Relations Board, 326 U.S. 411 , 415-17 single carrier status. Section 1B of the (1960) for the proposition that the Transition Agreement further provided limitations period begins to run from the that TWA-LLC could modify the work date of the execution of the challenged rules and benefits as necessary upon 21- agreement. Bensel v. Allied Pilots Ass’n, days notice in order to effect the transition 271 F. Supp 616, 622 (D. N.J. 2003). of the former TWA pilots to American. Significantly, during that 21-day notice The majority concluded that Local period, section 1B specified that “in lieu of Lodge bars the Class’ claims only if the 33 limitations period associated with ALPA’s district court recognized, that the waiver initial breach of its duty accrued on April subsumed any rights to bargain for 6, 2001, and that all subsequent breaches seniority integration from April 2001 of its duty were “inescapably grounded” in forward. That includes the claims that that breach. It did not find that these subsequent to the waiver, ALPA breached conditions were met. Local Lodge, 326 its duty by failing to challenge Supplement U.S. at 422. Unlike the majority, however, CC, failing to negotiate seniority I conclude that both of these conditions integration with the Allied Pilots were met to warrant application of Local Association during the transition period, Lodge for accrual purposes. I disagree that and permitting American to dictate that Supplement CC 11 and the allegations that seniority integration would be negotiated ALPA breached its duty of fair between the two pilot’s unions. representation post-waiver constituted A. breaches separate from the initial breach of ALPA’s duty – that it coerced the pilots The waiver must be viewed not as into waiving their seniority integration a singular act in April 2001 but as a series protections. Rather, I conclude, as the of agreements that effectively waived any right to bargain for seniority integration with either TWA, LLC or American. First, 11 the TWA Master Executive Council From February to October 2001, the agreed to waive seniority integration Allied Pilots Association and the TWA protections in exchange for TWA’s Master Executive Council attempted to withdrawal of its bankruptcy motion to negotiate seniority integration terms, even eliminate its contractual obligations with using the services of a mediator paid for by its unions. That waiver also was American. When those negotiations failed conditioned on American’s promise to use to produce an agreement regarding its “best efforts” to facilitate an agreement seniority integration, American and its between the two pilot’s unions regarding pilots executed a seniority integration seniority integration. But that promise by agreement known as Supplement CC on American represented an obligation merely November 8, 2001, which called for some to support the process of negotiation dovetailing of TWA pilots among the between the dueling unions in their American pilots for seniority purposes. attempt to reach an agreement concerning That agreement amended Section 13 of the a “fair and equitable” seniority integration. original agreement between American and It was not an obligation for American to its pilots that otherwise would have bargain with ALPA or the Master governed seniority integration. Supplement Executive Council regarding a “fair and CC would not become effective until equitable” seniority integration. That is single-carrier designation and certification what was forfeited in April 2001 when the of a collective bargaining agent for the seniority integration protections were combined pilot class.

34 waived. B. Second, the Transition Agreement The w aiver c l ea r l y and by its terms was not amendable and unequivocally included the right to bargain expired by its own terms once TWA, LLC with either TWA, LLC or American and American are deemed a single carrier regarding seniority. See Gullickson v. by the National Mediation Board. Nor did Southwest Airline Pilots’ Association, 87 it require that TWA, LLC engage in any F.3d 1178 (10th Cir. 1996). bargaining with ALPA regarding changes Gullickson involved the purchase of to work rules or benefits during the Morris Air, whose pilots were non-union, transition period. All that was required by Southwest Airlines. Southwest sought was written notice 21 days before any a waiver of the scope provisions of its changes were to be made. agreement with the Southwest pilots’ Given these agreements, the claims union. Despite the fact that Morris pilots concerning ALPA’s breach of its duty were not represented by it, the Southwest subsequent to the waiver are in fact pilots’ union met with Morris pilot “inescapably grounded” in the waiver and representatives and obtained a list of the attendant agreements of April of 2001. priorities regard ing job secu rity. All that was left was a promise by Thereafter, the union met with the American to use its “best efforts” to Southwest and reached a Letter Agreement support union to union negotiations containing a scope of waiver clause as well regarding seniority integration. The claims as seniority provisions giving Morris pilots that ALPA breached its duty of fair an effective seniority date of January 1, representation thus are inescapably 1994. Morris pilots attended various grounded in ALPA’s conduct in negotiating the waiver. Consequently, the claims are untimely. 12 the reasons stated within this opinion, I diverge from the majority’s conclusion that “rays of hope” tolled the accrual of the 12 The majority finds that the claims that initial claim that ALPA breached its duty ALPA also breached its duty post-waiver until April 2002. Rather, because that are timely using “relation back” under Fed. breach of duty claim accrued at the time of R. Civ. P.15 (c). However, that analysis is the waiver, relation back cannot save the premised on the finding that the initial claims that ALPA breached it duty claim that ALPA breached its duty filed on subsequent to the waiver. The initial September 3, 2002 – that ALPA coerced complaint must have been timely in order the TWA M aster Executive Council into for relation back to save the claims that waiving seniority integration given ALPA breached its duty subsequent to the ALPA’s interest in organizing the waiver. See e.g., Henderson v. Bolanda, American pilots – was timely filed. For 253 F.3d 928, 931 (7 th Cir. 2001).

35 informational meetings conducted by the “[a] voluntary choice may not be Southwest pilots’ union regarding the withdrawn because the choice was an terms of that Letter Agreement. effort to make the best of a bad situation. Adult pilots, of sound mind and well In February 1994, the Southwest aware of the consequences of their acts, pilots’ union became the collective must expect to keep contracts, even when bargaining representative for the Morris they wish they could have made better pilots. Three months later, Morris pilots deals.” Rakestraw v. United Airlines, Inc., ratified a collective bargaining agreement.

981 F.2d 1524 , 1534 (7 th Cir. 1992). On June 29, 1994, Morris pilots sued the Southwest pilots’ union and Southwest for IV. breach of the duty of fair representation Nor would I apply the “ray of hope” resulting from the endtailing of the Morris doctrine to toll the accrual of the claims pilots in the course of a seniority that ALPA breached its duty until April integration and failure to permit Morris 18, 2002, the date the arbitrator of the pilots an opportunity to ratify the Letter System Board of Adjustment denied the Agreement. But the Court found that the Class’ challenge based on American’s language of the Southwest-Mo rris “best efforts” promise. See Childs v. collective bargaining agreement was Penn. Fed’n Brotherhood of Maintenance sufficiently clear to inform M orris pilots Way Employees, 831 F.2d 429, 434 (3d that ratification of it necessarily ratified Cir. 1987) (holding that duty of fair the effect of the Letter of Agreement representation claim does not accrue while between the Southwest pilots union and the union continues to actively represent Southwest regarding seniority integration. the employee and offers rays of hope that Likewise, as the comments of TWA the employee’s cause will prevail). The Master Executive Council President Class contends, and the majority accepted, Robert Pastore to the entire pilot group that ALPA’s arbitration of American’s reveal, the TWA M aster Executive alleged breach of its “best efforts” letter Council took the best option available – necessarily impacted the viability of agreeing to the waiver to facilitate the Supplement CC, which could have purchase of TWA by American and to resulted in the invalidation of Supplement save as many contractual provisions as CC. possible while still having to negotiate The fundamental flaw in the seniority integration with the American majority’s application of the Childs “ray of pilots’ union during the transition period. hope” doctrine is its reliance on the This, when coupled with the language of premise that Supplement CC was not the the various agreements (as discussed supra inescapable result of the waiver of the at part III.A), supports the conclusion that seniority integration protections in April of there was a clear and unmistakable waiver 2001. “Rays of hope” cannot sustain a of the right to bargain for seniority. But 36 claim when the waiver of seniority Childs recognized that “[i]f the union can integration protections gutted any chance indeed remedy the cause of the employee’s that ALPA could continue to represent the dissatisfaction, it should be allowed to do Class to reach a more advantageous so, thus obviating federal judicial seniority integration agreement. For the involvement.” Childs, 831 F.2d at 434 ; reasons stated previously, the waiver of see also Whittle v. Local 6 41, seniority integration protections, and the International Brotherhood of Teamsters, attendant agreements executed in early Chauffeurs, Warehousemen and Helpers of April 2001, eliminated both contractual America, AFL-CIO, 59 F.3d 487 (3d Cir. and any statutory duties to bargain for 1995). seniority thereafter. In other words, it Childs and Whittle both dealt with stripped ALPA of any real negotiating claims to overturn unfavorable arbitration strength or bargaining leverage with awards on grounds that the union respect to the seniority integration of committed errors in the arbitration former TWA pilots within American. proceedings. In Childs, the union declined Moreover, even if ALPA prevailed in the to represent Childs before the Board due to arbitration concerning the “best efforts” a lack of corroborative evidence which letter, and American was found to have Childs claimed to have provided to the breached its “best efforts” promise, it still Union during the grievance process. In would not eliminate the fact that the Whittle, the union allegedly failed to Transition Agreement between ALPA and prosecute a seniority case vigorously TWA, LLC was not amendable and before the joint local committee. Those precluded negotiations with TWA, LLC decisions are premised upon the policy to concerning seniority integration. Nor resolve disputes where possible through would a victory require American to arbitration, thus obviating the need for bargain with ALPA concerning seniority judicial involvement if the union is able to integration. In order for a “ray of hope” to remedy the cause to the employees’ exist, there must be a meaningful hope that satisfaction. See Childs, 831 F.2d at 434 . i t c a n r e m ed y t h e e m p l o ye e ’s The claims in those cases therefore did not dissatisfaction. accrue for statute of limitations purposes Childs was premised on promoting until the employee learned of the the federal labor policies of: (1) avoiding arbitrator’s award. Otherwise, there was unnecessary federal litigation; (2) allowing no way for employees to know whether full play of the administrative procedure; they suffered any loss from the union’s and (3) sparing the employee the Hobson’s alleged breach until the arbitration choice between letting the statute of decision issued. Whittle, 56 F.3d at 490 . limitations run and antagonizing his best Here, however, the cause of the advocate. 831 F.2d 434 -35, 436. As to employee’s dissatisfaction was not avoiding unnecessary federal litigation, American’s breach of its “best efforts”

37 obligation. Rather, the Class sought exactly that which it sacrificed in order to facilitate American’s purchase of TWA – the right to arbitrate or otherwise dictate the senio rity integration process. Extending a “ray of hope” here, where the waiver extinguished any meaningful prospect that the TWA pilots could control seniority integration, is not warranted on this record. IV. For the foregoing reasons, I would affirm the judgment of the district court granting summary judgment on Count I regarding all of the alleged breaches of the duty of fair representation. I concur in the remainder of the majority opinion.

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