How The Merger Went Down...

[jsn25911]

The following is the post made by Hunter - it is a good explanation of what to expect. It was responding to Liveinahotel

Obviously, you are not well versed in contract law as it relates to the IAM/TWA CBA. The scope provisions in that contract were/are enforceable in the event of either a merger or any fragmentation of TWA.

Regardless, the issues in the current seniority lawsuit brought by the former TWA F/A's does not hinge on the language of the scope provision in the IAM/TWA CBA. The issues are much more broad and consist of various tort law claims. All of these claims are civil in nature, which lowers the evidentiary bar to only a preponderance of the evidence. The former TWA F/A's need only convince the jury using the "reasonable persons" standard. I ask you, would a reasonable person see the "fairness and equity" of a 40 year former TWA F/A being sent packing in favor of a 40 day nAAitive remaining employed?

As far as your assertion that this issue is over... I remind you that the wheels of justice grind slowly, but they do indeed turn. You should not be lulled into a false sense of security simply because the issue is not front and center. APFA (John Ward) has purposely not been forthcoming concerning the gravity of this issue nor the potentially perilous position in which he has placed the APFA and its membership.

Should AA/APFA/TWA, llc.'s motion to dismiss be overcome, this case will play out before a jury of "our" peers who will look at the allegations, determine liability and assess damages. Remember, this case will be heard in New York, a notoriously "union" town. I am counting on my fellow unionists to see the unfair way in which the former TWA F/A's have been stapled. If the public admonitions of the entire ALF-CIO are any indication, all of organized labor is will be appalled at APFA's behavior when the facts of this case come to light.

 

[Hunter]

The APFA contract does have SCOPE, Article 1 of the contract.

This senioroty thing is OVER and done with. You really forgot what the IAM signed over to the APFA. That letter of agreement is all the APFA needs in court to shut you TWA folks up.

Get over it!

Okay Hotel -

Despite what my momma told me about arguing with a fool, I have to point out a few of the many errors in you most recent post.

1. The scope provisions of the APFA contract were only recently added...AFTER the TWA purchase. It might come as a surprise to you but, scope became a part of the TWA F/A's contract in late 1980’s. The language of the APFA scope provision is nearly identical to that of the former TWA FA's. Imitation is the highest form of flattery.

2. The seniority "thing", as you so casually put it, is far from over. Currently the case is pending before a federal court. The defendants in the case, APFA, AA, TWA, LLc. filed a motion to dismiss and that was robustly answered by plaintiffs. A decision from the judge is expected soon.

3. Your assertion that the TWA F/A's, through their union, voluntarily surrendered the scope provisions of their contract is not accurate. While there is a very legitimate, yet complex legal argument as to why your statement is wrong, I fear that you do not possess the legal knowledge to either understand nor the moral integrity to even attempt an unbiased view of that position.

4. If, as you claim, all APFA needs in court to “shut the TWA people upâ€￾ is the letter in which they voluntarily waived scope, why has APFA not produced it? Or, if it has been produced, why has it not “shut the TWA people upâ€￾ and the case gone away? I have explained this in several posts, but you do not seem to grasp it, so once again…

THE TWA F/A’S SENIORITY LAWSUIT DOES NOT HINGE ON WHETHER OR NOT SCOPE WAS SURRENDERED.

I hope this clears up some of the misunderstanding concerning the seniority issue. Might I suggest you ask some very hard questions of John Ward concerning the seniority lawsuit and the 10 other lawsuits pending against APFA stemming from their actions regarding the former TWA F/A's. You might find the answers enlightening.

 

[L1011Ret]

The only "scope" surrendered was the right to an arbitrated settlement under Allegheny-Mohawk rules. The TWA F/As gave up that right and that right only. They did not give up the right to a negotiated settlement of seniority issues.

 

[Garfield1966]

Hunter, Hunter, Hunter ... You should have listened to your mother. Hotel gives a bad name to fools. He/she/it has no interest in the truth. That only gets in the way. I have been accused of violating various rules of AA (none of which He/she/it has proven) and yet I am still here.

I do have a question for you. I have very little understanding of what is being discussed due to the fact that I am fortunate enough not to be represented by a union but why is AA a defendant in this whole mess? I thought the senority issue could only be determined by the unions involved? Could AA have mandated something? I guess I am asking what AA’s roll was in this cluster *&%$ aside from getting TWA to fill Ch11 and then purchasing the assets.

Please give me the readers digest version.

Thanks

 

[Royal Ambassador]

Please give me the readers digest version.

The legal brief from the court docket:

INTRODUCTION

Through this case, Plaintiffs seek to affirm the following proposition: that, if it requires only one thing, the law requires the parties to a transaction to tell the truth and honor the promises they make. A thorough examination of the motions sub judice reveals a curious thing in that there is nary a mention of the promises Plaintiffs seek to enforce, most of which occurred in the first half of 2001, a time when Plaintiffs’ bargaining relationship with the Defendants was outside the mandates of the RLA and in which Plaintiffs and Defendants negotiated with one another as parties to a commercial agreement, but not as employer and employee.
Defendant Union, for its part, altogether ignores these operative facts set forth in Plaintiffs’ Complaint. Instead, this Defendant would have the Court dismiss the Amended Complaint because, in its wholly unsupported view, “had American withdrawn its offer to Purchase TWA’s assets, it is highly likely that those assets would have been liquidated and the employees of TWA all would have lost their jobs.â€￾ Even more revealing, the Union Defendant fails to even cite, let alone discuss, the controlling United States Supreme Court precedent, Hawaiian Airlines v. Norris, 512 U.S. 246, 114 S.Ct. 2239 (1994). The alternate legal theories offered by the Union Defendant are, in fact, little more than artfully crafted red herrings designed to deflect attention from the clearly applicable precedent that Hawaiian Air represents. More importantly, they utterly ignore the inescapable conclusion that Hawaiian Air explicitly authorizes the claims Plaintiffs assert.

The Company Defendants’ Motion is similarly flawed. Not surprisingly, these Defendants seek to minimize the importance of the operative promises and representations Plaintiffs seek to enforce, which, again, occurred outside the scope of employer-employee bargaining under the RLA. Indeed, the Company Defendants make the amazing assertion that: “Plaintiffs’ Amended Complaint does present numerous contested allegations concerning the representations and circumstances related to the seniority integration of the former TWA flight attendants with the American Airlines flight attendants, which are not relevant to this Motion to Dismiss.â€￾ To the contrary, these “contested allegationsâ€￾ are at the very heart of this case. Indeed, this Court cannot decide the pending motions unless and until it has examined the legal significance of the Defendants’ “[mis]representations and circumstances related to the seniority integration of the TWA flight attendants.â€￾
Nor can the Court decide these motions without the benefit of the controlling precedent which, like their union counterpart, the Company Defendants blithely brush aside. To their credit, Company Defendants at least cite Hawaiian Air, but alas, for the wrong proposition. Indeed, Company Defendants would stand this case on its head and hold that it requires preemption of Plaintiffs’ state law claims where the opposite is clearly true.
As was made clear by a ranking member of defense counsel’s own firm, the Supreme Court’s test under Hawaiian Air for whether state law claims are pre-empted clearly grants this Court jurisdiction to hear Plaintiffs’ state law claims:

A state law claim is pre-empted by the RLA only if resolution of the claim “depends on an interpretation of the collective bargaining agreement.â€￾ A state-law claim is not pre-empted by the RLA if “it involves rights and obligations that exist independentâ€￾ of the CBA. When a case involves “purely factual questions about an employee’s conduct or an employer’s conduct and motives,â€￾ there is no need to interpret a CBA; thus, a state law claim is not pre-empted.

In the case at bar, there is no collective bargaining agreement (hereinafter “CBAâ€￾) between Plaintiffs, American and Union Defendant to even interpret. Indeed, through the Amended Complaint, Plaintiffs principally seek to hold American and Union Defendant accountable for the misrepresentations of their agents pre-dating by over a year first, a collective bargaining relationship between Plaintiffs, Union Defendant and Company Defendant under the RLA or, secondly, an obligation between Plaintiffs and Union Defendants as employees and employees representative. Hawaiian Air and the unbroken line of subsequent controlling cases from this Circuit make clear that the theories set forth in the Amended Complaint—none of which require interpretation of or even reference to a CBA--- are clearly appropriate for this Court to decide as they focus on these Defendants’ misconduct and the motives behind it. In other words, Plaintiffs’ claims are intertwined with the state law right to be free from fraud and misrepresentation in the negotiation of commercial transactions, and not with the rights of any party to any collective bargaining agreement. For this reason, Defendants’ motions must fail.



STATEMENT OF FACTS
During the first half of 2001, Defendant American Airlines, Inc. (“Americanâ€￾) began a process by which it would acquire substantially all of the assets of TWA Airlines, Inc. (“TWA Iâ€￾) [Amended Complaint (hereafter, “ACâ€￾) 1.] American formed TWA, LLC (“TWA IIâ€￾) to own and operate TWA I’s assets with the understanding that TWA II would cease to exist once American and TWA II obtained a single carrier designation from the National Mediation Board (“NMBâ€￾). AC 27. The process began in January 2001 with American’s announcement of the asset purchase agreement (“Purchase Agreementâ€￾) and TWA I’s pre-arranged bankruptcy declaration. AC 23-24.
The Purchase Agreement had to be approved by the Bankruptcy Court in a process that would last until April 9, 2001 and which, by no means, guaranteed that American (through TWA II) would ultimately close the acquisition. AC 28. During this approval process, at a time when Plaintiffs’ bargaining relationship with Company Defendants was neither governed by a Collective Bargaining Agreement (“CBAâ€￾) nor the RLA itself, American repeatedly affirmed that it would provide benefits to Plaintiffs that were equally favorable to those of similarly-situated American Employees. AC 30.

Perhaps most significantly, American, through its CEO and others, promised Plaintiffs that, if they waived their Allegheny-Mohawk labor protections and agreed to other changes in their existing CBA with TWA I, TWA II would either adopt benefits which mirrored the benefits Plaintiffs had under their CBA with TWA I or at least provide benefits no less favorable than those received by similarly-situated American employees under their CBA with American. As alleged at 42 of the Amended Complaint, this amounted, in essence, to a representation guaranteeing that Plaintiffs’ seniority system would remain unchanged. AC 42.
Some of these repeated promises were memorialized in a March 9, 2001 letter (“March 9 letterâ€￾), written by American in response to the Plaintiffs’ grave concerns about the preservation of their seniority status. AC 44-45. The March 9 letter stated unambiguously that American agreed “to use its reasonable best efforts with its labor organizations representing the mechanics and related and flight attendant crafts or classes . . . to secure a fair and equitable process for the integration of seniority. In that regard, American will engage a facilitator to organize meetings with labor organizations representing the mechanics and flight attendants and American and TWA LLC. American agrees to adopt the procedures that result from this process for seniority integration. . .â€￾ AC 45-46. (Emphasis supplied.) It is undisputable that American never engaged in the facilitation process it had promised. Nevertheless, in reliance upon American’s promise, which, again, occurred outside the realm of the RLA because American was not an “employerâ€￾ of Plaintiffs at the time the promise was made, Plaintiffs withdrew their objections to the Purchase Agreement with the Bankruptcy Court. Three days later, on March 12, 2001, the Bankruptcy Court approved the purchase. AC 49-50.
Rather than engaging the promised facilitator, the Company Defendants rewarded Plaintiffs show of good faith with an act of perfidy. On March 15, 2001, three days after Plaintiffs withdrew their objections to the Purchase Agreement, Company Defendants filed a motion under Section 1113 of the Bankruptcy Code. The motion sought, among other things, to completely abrogate the CBA between Plaintiffs and TWA I. AC 52-55. The motion was the proverbial gun to the Plaintiffs’ collective head. Plaintiffs were faced with the complete loss of, among other things, company contributions into pension and 401(k) plans, the elimination of grievance procedures, and the gutting of other important bargained-for work rules. AC 53. American advised Plaintiffs that, to avoid the full thrust of Section 1113 relief, that they would have to waive, among other things, their Allegheny-Mohawk protections. AC 54. Still, on March 15, 2001, through TWA I’s President and CEO, Company Defendants promised Plaintiffs that “waiving these [Allegheny-Mohawk] provisions will not compromise anyone’s employment or reduce benefits.â€￾ AC 55.
On March 21, 2001, in an apparent effort to pre-empt Company Defendants and circumvent the facilitation process that American had promised, Union Defendant passed a resolution which, if ultimately adopted by American, would have given flight attendants represented by the Defendant Union seniority rights greater than those afforded to Plaintiffs. AC 56-61.
Undeterred by Defendant Union’s posturing, Plaintiffs asked American to re-affirm the commitment it had made in the March 9 letter to use its reasonable best efforts with Defendant Union to secure a fair and equitable process for seniority integration. AC 62. That re-assurance came in the form of a letter from American dated March 30, 2001 (“the March 30 letterâ€￾). The March 30 letter not only re-stated American’s earlier commitment to engage in a facilitative process with the incumbent union, but to do so within 30 days of the initial operation of TWA II. Ultimately, the initial operation took place on or about April 10, 2001. AC 63. Had it been honored in good faith, this promise to engage in facilitation could have led to an equitable seniority integration agreement. While it is true that Union Defendant was not bound by American’s promises in this regard, American was likewise not obligated under its CBA with Union Defendant to accept any integration plan the Union Defendant proposed. In other words, American’s agreement would be, and ultimately was, necessary to the adoption of a seniority integration agreement.
In reliance upon American’s repeated promises of equality, in early April 2001, Plaintiffs finally entered into a transition agreement with TWA II. AC 66-67. As part of this agreement, Plaintiffs dropped their opposition to the above Section 1113 motion and, perhaps more importantly, agreed to voluntarily waive the Allegheny-Mohawk provisions of the CBA. AC 67. Also significant for purposes of deciding this motion, the transition agreement pre-dated the employment relationship between members of the Plaintiff class and TWA II. This fact was explicitly acknowledged in an April 3, 2001 letter agreement incorporated as part of the transition agreement. See Exhibit 4 to Company Defendants’ Appendix at p.6.
Throughout April 2001, American continued to re-affirm its commitment to a facilitative process designed to bring about equality in seniority treatment between American and former TWA I flight attendants. On April 16, 2001, TWA II’s website stated that former TWA I employees would retain company and pay seniority earned with the company and that Occupational Seniority would, with American’s help, be decided in a facilitative process between the incumbent Defendant Union and Plaintiffs. Two days later, American advised the Plaintiff and Defendant Unions that it was in the process of retaining a facilitator to discuss with the parties the issue of seniority integtation. AC 72.
American did go through the motion of retaining a facilitator, Richard Kasher, to assist in the integration process. AC 73 However, American did absolutely nothing to hold the Defendant Union’s feet to the fire and the meetings never took place. AC 72-74, 77. The Defendant Union refused to meet with Plaintiffs throughout the summer of 2001. AC 74,77. Thus, when the tragedy of September 11 led to cuts in the airline industry, Plaintiffs were left without protection. On September 15, 2001 American notified Plaintiffs that it would reduce operations both at TWA II and American, but promised that cuts would be felt in equal numbers at both Airlines. AC 78-79. When those cuts inevitably came in October 2001, American’s promises of proportionality were laid bare: 25 percent of the TWA flight attendants (1018) with seniority of 2 to 40 years received furlough notices, while 2 percent of American flight attendants (400), all with less than 2 years seniority, received pink slips. AC 79-80.
And still American did nothing to insure its Union’s participation in the facilitative process American had promised to Plaintiffs as an inducement to get them to consent to the Purchase Agreement at the various times above. Indeed, it is clear that, at the very same time American was promising tripartite facilitation between it and both Unions, American was secretly engaged in bi-lateral talks with the Defendant Union designed to deprive Plaintiffs of the equal integration they had been promised. AC 89-90.
On December 17, 2001, without conducting so much as a single meeting with Plaintiffs and without the RLA’s authority to bargain on behalf of Plaintiffs, Defendant Union entered into an Agreement on Seniority Integration and Related Matters (“SIAâ€￾) with American that utterly eviscerated Plaintiffs’ seniority rights, delivering almost none of the equality promised during the preceding eleven months. AC 88-90. A ranking American bargaining official admitted two days later that the bi-lateral negotiations for the SIA had been ongoing for the “past several months.â€￾ AC 90.
To borrow a phrase, for the Plaintiffs who had absolutely no say in shaping its terms but bore the brunt of its harshness, the SIA amounted to “Integration without Representation.â€￾ Indeed, Company Defendants admit that Union Defendant was not even the recognized bargaining representative of Plaintiff flight attendants until April 19, 2002, some four months after the SIA was imposed on them. American, who negotiated the employer side of the SIA, did not legally become the Plaintiffs’ employer until at least March 19, 2002.
Yet, even though the SIA involved neither their union representative nor their employer, it is undisputable that it devastated the seniority rights of the Plaintiffs and ultimately sounded the death knell for their long term employment prospects. Among other things, the SIA “stapledâ€￾ the TWA seniority list to the bottom of the American occupational seniority list. AC 92. In other words, the SIA made it possible for a TWA flight attendant with 40 years seniority to receive a pink slip before
an American flight attendant with 40 hours seniority. The SIA, in this regard, went far beyond the provisions called for in the Union Defendant’s March 21 Resolution on seniority integration. It also violated the Defendant Union’s assurance to Plaintiff Cooper that stapling would not occur.
But American did not stop there. In the period immediately following the imposition of the SIA, American decided to unilaterally abrogate other seniority rights that determined, among other things, TWA flight attendants’ classifications, company seniority and other monetary and non-monetary benefits. AC 94-95.
For purposes of deciding this motion, the above well-pled allegations must all be accepted as true. They amount, in their totality, to conduct that borders on the criminal and certainly crosses the line into the realm of the unethical and legally actionable. At the very least, as set forth, in paragraph 96 of the Amended Complaint: “Defendants’ conduct was in direct and blatant breach of their contractual obligations under the March 9th Letter Agreement, resulted in an unfavorable advantage to APFA, and, by ignoring plaintiffs’ rights, achieved American’s goal of a fast resolution to any issues that stood in its way of merging the two airlines for the greatest possible financial and competitive gain to the detriment of the Individual Plaintiffs and Members of the Class.â€￾




STANDARD OF REVIEW
Plaintiffs concur in the Defendants’ reliance upon Conley v. Gibson, 355 U.S. 41 (1957) and its progeny as setting forth the appropriate standard of review that this Court must use in deciding the instant motions. The Court must take as true all well-pled facts set forth above and draw all inferences from them in a light most favorable to Plaintiffs. Under Conley, it is not the Court’s place to judge these facts, but rather to determine within the four corners of the Amended Complaint whether there are sufficient facts to support the claims it makes. Plaintiffs dispute, however, that the standard so applied can result in any result other than a denial of the relief Defendants seek.
ARGUMENT
I. PLAINTIFFS’ STATE LAW CLAIMS (II-VIII OF AMENDED COMPLAINT) ARE NOT PREEMPTED BY THE RLA BECAUSE THEY DO NOT DEPEND UPON THE INTERPRETATION OF A COLLECTIVE BARGAINING AGREEMENT, BUT, INSTEAD INVOLVE CONDUCT ONLY OF PERIPHERAL INTEREST TO THE RLA OVER WHICH THE STATES POSSESS AN INDEPENDENT REGULATORY INTEREST.

Since 1945, the United States Supreme Court has decided well over fifty cases measuring the extent to which federal labor legislation preempts the regulatory power of the states. The pre-emption doctrine has its roots in §10(a) of the National Labor Relations Act which provides the National Labor Relations Board with the power to cede jurisdiction to state agencies over labor disputes “affecting commerceâ€￾ unless the applicable state statute conflicts with a corresponding provision of the NLRA.

In 1957, the Supreme Court created in Guss v. Utah Labor Relations Bd., 353 U.S. 1 (1957), a legal no-man’s land by prohibiting state jurisdiction, even where the NLRB refused, under 10(a) to exercise jurisdiction. Congress took this problem up first during the debates that led to the Taft-Hartley Act. While various proposals were discussed , from complete federal preemption of all disputes affecting commerce to shared jurisdiction between state and federal courts, Congress ultimately punted and left it to the courts to decide the specific contours of the preemption doctrine. As the Supreme Court stated in Weber v. Anheuser-Busch, Inc., 348 U.S. 468 (1955):
By the Taft-Hartley Act, Congress did not exhaust the full sweep of legislative power over industrial relations given by the Commerce Clause. Congress formulated a code whereby it outlawed some aspects of labor activities and left others free for the operation of economic forces. As to both categories, the areas that have been pre-empted by federal authority and thereby withdrawn from state power are not susceptible of delimitation by fixed metes and bounds. Obvious conflict, actual or potential, leads to easy judicial exclusion of state action. Such was the situation in Garner v. Teamsters Union, supra. But as the opinion in that case recalled, the Labor Management Relations Act “leaves much to the states, though Congress has refrained from telling us how muchâ€￾. 346 U.S. at 488. This penumbral area can be rendered progressively clear only by the course of litigation.â€￾

348 U.S. at 480-481.
Against this backdrop, the Supreme Court decided the seminal case of San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), upon which the motions sub judice chiefly rely. Garmon required preemption unless (1) “the activity regulated was merely a peripheral concern of the Labor Management Relations Act . . .â€￾ or . . . (2) “the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction [the Courts] could not infer that Congress had deprived the States of the power to act.â€￾ 359 U.S. at 243-244. In so ruling, Garmon recognized that Congress did not intend to totally prohibit the states from labor regulation: “due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy, has required us not to find withdrawal from the States of power to regulate . . .â€￾ Id at 243.
The four decades since Garmon has seen a steady erosion in the doctrine of federal preemption. In Linn v United Plant Guard Workers of America, Local 114, 383 U.S. 53 (1966), the Supreme Court allowed a state tort claim for defamation to go forward, even though the defamatory statements were uttered in the course of a labor dispute and were, in fact, the subject of unfair labor practices justiciable by the NLRB. Similarly, eleven years later, Farmer v. Carpenters, 430 U.S. 290 (1977), found no preemption where Plaintiff sought relief for a state tort for intentional infliction of emotional distress arising out of conduct, arguably the gravamen of an unfair labor practice. In the Court’s next term, it decided Sears, Roebuck & Co. v. San Diego Dist. Council of Carpenters, 436 U.S. 180 (1978). In that case, the Court allowed a state trespass action to go forward with no preemption where the state tort claim involved only the location of picketing while a concomitant unfair labor practice charge over the same picketing would focus on the object of the picketing.
Like the case at bar, Belknap, Inc. v. Hale, 463 U.S. 491 (1983), examined, inter alia, whether the Garmon preemption doctrine prohibited state law causes of action for fraud and breach of contract. In Belknap, replacement workers sued their employer in Kentucky state court for fraud and breach of contract in connection with the employer’s promise that it had “no intentionâ€￾ of recalling strikers in the event of a strike settlement. The employer argued that the claims were preempted because they related to offers and contracts for permanent employment that were part and parcel of the arguable unfair labor practice that ultimately forced the employer to recall the strikers. On these facts, the Court held that:
It is true that whether the strike was an unfair labor practice strike and whether the offer to replacements was the kind of offer forbidden during such a dispute were matters for the Board. The focus of these determinations, however, would be on whether the rights of the strikers were being infringed. Neither controversy would have anything in common with the question whether Belknap made misrepresentations to replacements that were actionable under state law. . . t appears to us that maintaining the misrepresentation action would not interfere with the Board’s determination of matters within its jurisdiction and that such an action is of no more than peripheral concern to the Board and the federal law. At the same time, Kentucky surely has a substantial [local] interest in protecting its citizens from misrepresentations that have caused them grievous harm. It is no less true here than it was in Linn v. Plant Guard Workers, supra. at 63, that “the injuryâ€￾ remedied by the state law “has no relevance to the Board’s functionâ€￾ and that “[t]he Board can award no damages, impose no penalty, or give no reliefâ€￾ to the plaintiffs in this case. The state interests involved in this case clearly outweigh any possible interference with the Board’s function that may result from permitting the action for misrepresentation to proceed.â€￾

463 U.S. at 510-511.
The Court ruled similarly with respect to the plaintiffs’ state law breach of contract claim. Citing Farmer, the Court held that the interests of the NLRB and the preservation of a uniform national labor policy as reflected in the NLRA, on the one hand, and the interests of the state in providing its citizens with an independent remedy for contractual breaches were “discrete concerns.â€￾ Thus, by the time of the Belknap decision the erosion of the Garmon doctrine was substantial, making the present Defendants’ reliance on it dubious, at best.
At the very least, Belknap paved the way for Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246 (1994) and its progeny, the controlling precedent for this motion. Hawaiian Air marked the High Court’s best effort to apply the steadily narrowing preemption doctrine to the RLA. At its core, the case holds that “substantive protections provided by state law, independent of whatever labor agreement might govern, are not pre-empted under the RLA.â€￾ 512 U.S. at 257.
Hawaiian Air involved a claim brought by an airline mechanic terminated after he refused to sign a safety certification. The plaintiff brought a wrongful discharge claim after invoking and using the grievance procedure set forth in his CBA. He also alleged that his employer breached the terms of the CBA which required just cause for a termination. The employer removed the matter to federal court for the District of Hawaii which promptly dismissed the breach of contract claim as pre-empted by the RLA and remanded the remaining matters to the state court. The state court dismissed the public policy claim and, in a second suit against individual defendants, a whistleblower claim under state law. The Supreme Court of Hawaii reversed both decisions on the grounds that 45 U.S.C. §153 First (i) “does not support pre-emption of disputes independent of a labor agreementâ€￾ and thereby limited RLA preemption. 512 US at 251, citing Norris v. Hawaiian Airlines, Inc., 842 P.2d 634, 642. Relying upon Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399 (1988), the Hawaii Supreme Court seemed to set a bright line rule sustaining those state law claims that did not require, as part of their resolution, the interpretation of a collective bargaining agreement, but rather focused on “factual questionsâ€￾ involving the “employee’s conductâ€￾ and the “employer’s motivesâ€￾ for a particular job action. The U.S. Supreme Court granted certiorari to examine this decision.
In beginning its analysis, the U.S. Supreme Court noted that:
Pre-emption of employment standards “within the traditional police power of the Stateâ€￾ “should not be lightly inferred.â€￾ Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 21 (1987); see also Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 715 (1985) (a federal statute will be read to supercede a State’s historic powers only if this is “the clear and manifest purpose of Congress.â€￾)

512 U.S. at 252.

The Court went on to point out that the RLA preempted only two classes of disputes: “major disputesâ€￾ which deal with disputes over the formation of collective bargaining agreements and “minor disputesâ€￾ which include “disputes growing out of grievances or out of the interpretation or application of [CBAs].â€￾ 512 U.S. at 248. The employer focused on the disjunctive “orâ€￾ to argue that “grievancesâ€￾ meant something other than “labor contract disputesâ€￾. According to the employer, the definition of “grievancesâ€￾ should include “all employment-related disputes, including those based on statutory or common law.â€￾ 512 U.S. at 253.
The High Court explicitly rejected this expansive reading of the statutory language that Defendants at bar effectively propose. The Court noted in this regard that there was no “clear and manifest congressional purpose to create a regime that broadly pre-empts substantive protections extended by the States, independent of any negotiated labor agreement.â€￾ 512 US at 255-256. Thus, the Court concluded that its “case law confirmsâ€￾ that § 151(a)’s definition of “minor disputesâ€￾ includes only those that are “grounded in the collective bargaining agreement.â€￾ 512 U.S. at 256. The Court went further to hold that the “RLA’s mechanism for resolving minor disputes does not pre-empt causes of action to enforce rights [as those sub judice] that are independent of the CBA.â€￾ Id.
In reaching this conclusion, the Court cited a long history of cases dating back as far as 1931 with Missouri Pacific R. Co. v. Norwood, 283 U.S. 249 (1931), for the proposition that a host of state health and safety regulations intersecting with CBA rights were not pre-empted as “minor disputesâ€￾. According to the Court, controlling precedent required that “substantive protections provided by state law, independent of whatever labor agreement might govern, are not pre-empted under the RLA.â€￾ 512 U.S. at 257. In conceding that this long-established precedent involved the health and safety regulations of the States, the Court pointed out that it had consistently applied this rationale to cases involving wrongful discharge where the CBA does not provide the “only sourceâ€￾ of an employee’s right not to be wrongfully discharged. Indeed, where the “only sourceâ€￾ of the rights asserted by an employee are found in “state tort law,â€￾ the Court made it clear that the violation of those rights was not a preemptible minor dispute. See also, Atchison, Topeka and Santa Fey Ry Co. v. Buell, 480 U.S. 557 (1987) (Minor disputes subject to preemption under the RLA involve only those “rights and dutiesâ€￾ under a CBA.)
This conclusion is not changed merely because a potential CBA-based remedy exists. See Lingle, supra. at 407 (Same analysis of same facts necessary to resolve parallel disputes under CBA grievance and Illinois workers compensation claim for wrongful discharge. No preemption under LMRA because “purely factual questionsâ€￾ about employee conduct and employer motives do not require interpretation of CBA.)
The Defendants’ present motions are the quintessential example of placing the pre-emption cart before the RLA horse. In other words, the Defendants seek to apply the RLA’s pre-emptive effects before demonstrating that the RLA even applies under the present set of well-pled facts. Indeed, Defendants have not cited a single case---because none exist---in which the RLA successfully pre-empted claims between parties, not bargaining for a collective bargaining agreement under the RLA, but rather bargaining essentially over the terms of their involvement in an Asset Purchase Agreement. The Amended Complaint sounds primarily in state common law and involves conduct that APFA and American freely admit pre-dates by at least a year their RLA obligation to bargain. The March 9, 2001 letter, for example, one of the first actionable events, occurred almost 12 months to the day prior to American’s designation as Plaintiffs’ legal employer on March 19, 2002. Quite simply, the conduct was regulated by state law governing the conduct of parties negotiating a commercial contract.
Yet, even assuming the RLA can be applied to the facts set forth in the Amended Complaint, it is clear that they involve “purely factual questionsâ€￾ about employee conduct and employer motives that do not require the interpretation of a CBA. Indeed the clear focus of the Amended Complaint is upon the Defendants’ motives: Did they ever intend to honor their commitments? Did they intend to deceive or mislead?

These tort theories are of “no more than peripheral concernâ€￾ to the adjustment boards and the federal law because they do not fit within Hawaiian Air’s narrow definition of a “minor disputeâ€￾ which focuses on CBA interpretation. As in Belknap, maintaining the state law misrepresentation action herein (Counts III-VI) would not interfere with the adjustment boards’ determination of matters within its jurisdiction.
This conclusion is to be weighed against the substantial state interest in protecting citizens from misrepresentations like those alleged in the Amended Complaint. This conclusion is especially appropriate under the present set of facts. It is doubtful that Plaintiffs could have successfully resorted to the adjustment board for the conduct complained of herein where, during the period when the objectionable conduct was occurring, the board’s jurisdiction would have been non-existent given the lack of both an employer-employee relationship between Plaintiffs and Company Defendants and an Employee-Union relationship between Plaintiffs and Union Defendant. As it was in Linn v. Plant Guard Workers, supra. at 63, “the injuryâ€￾ sought to be remedied by state law “has no relevance to the Board’s functionâ€￾ where “[t]he Board can award no damages, impose no penalty, or give any other reliefâ€￾ to the plaintiffs for the wrongs alleged.
The clear precedent of the Court of Appeals for the Second Circuit is in accord. In Foy v. Pratt & Whitney Group, 127 F.3d 229 (2d Cir. 1997), plaintiffs sued their employer in state court for negligent misrepresentation, intentional misrepresentation and unfair trade practices in connection with supervisors’ statements during a plant closure about transfer opportunities for union-represented employees covered by a collective bargaining agreement. Defendants removed the matter to federal court and moved for summary judgment on several grounds including federal preemption under § 301 of the LMRA. The District Court granted summary judgment on the grounds that the matters before it were preempted in that plaintiffs’ allegations also arguably constituted § 8 violations of the NLRA and were, therefore, within the jurisdiction of the NLRB. Id.
The Second Circuit disagreed. It reversed on the grounds that the matters were not preempted because they rested on “independent state law rights that do not require interpretation of the CBA.â€￾ The Court concluded that the mere fact that a CBA might be consulted in the course of litigation did not give rise to § 301's preemptive effect. In this regard, the Court of Appeals explicitly rejected the District Court’s conclusion that plaintiffs’ negligent misrepresentation claim required interpretation of the employer’s duties under the CBA. To the contrary, citing Livadas v. Bradshaw, 512 U.S. 107, 123 (1994), the Court of Appeals affirmed that there can be no preemption of “non-negotiable rights conferred on individual employees as a matter of state law.â€￾ 123 F.3d at 234. The Court also noted that the preemption doctrine was meant only to insure that federal law be used to interpret CBAs, but was absolutely silent about the “substantive rights a State may provide to workers [over and above those contained in a CBA] when adjudication of those rights does not depend upon the interpretation of such agreements.â€￾ 123 F.3d at 233. See also, Lingle, 486 U.S. at 409. In conclusion, the Court found, as a matter of law, that the plaintiffs’ tort claims, similar to the ones at bar, did not depend on an interpretation of the CBA and, therefore, were not preempted.
The case against preemption of the tort claims in the case at bar is even stronger because no CBA between Plaintiffs’ and Defendants even existed at the time when most of the actionable conduct at issue here occurred. Defendants would have this Court use the CBA and other agreements between them as a basis for preemption, even though it is clear, as a matter of law, that Defendants’ agreements with each other need not be interpreted to decide whether Defendants violated Plaintiffs’ independent state law “right to be free from economic harm caused by misrepresentation.â€￾ 127 F.3d at 235.
The same can be said with respect to the Counts sounding in contract (II, VII, and VIII). As Belknap and Farmer make clear, there is nothing inconsistent about the interests of the state in providing its citizens with an independent remedy for contractual breaches, on the one hand, and the preservation of a uniform national labor policy on the other.
The Second Circuit explicitly accepted the foregoing rationale in Hernandez v. Conriv Realty Associates, 116 F.3d 35 (2d Cir. 1997). In Hernandez, Plaintiff asserted that he voluntarily withdrew his employment as a union member and continued his employment as a non-union member. In exchange for this withdrawal, Plaintiff alleged that Defendant made certain promises, which it subsequently breached, regarding pay and job security. Of special relevance to the case at bar, Plaintiff also claimed that Defendant promised the equivalent benefits he had received as a union member under the CBA. Defendant argued that the case was preempted under § 301 of the LMRA and the District Court agreed, imposing sanctions on the Plaintiff for bringing suit.
The Second Circuit reversed. The Court of Appeals held that the matter was not preempted because, in the case of certain of the promises regarding security and pay for extra work, there was simply no need to refer to the CBA. With respect to the promise that Plaintiff would receive benefits equal to those set forth in the CBA, the Court found no preemption because the promise existed independently of the CBA. The Court reached its conclusion even though it would be necessary to refer to the CBA to determine what those benefits were. According to the Court, “when the meaning of contract terms is not the subject of dispute, the bare fact a collective bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished.â€￾ (Quoting, Livadas, 512 U.S. at 124)
This rationale is particularly applicable to the facts at bar. Plaintiffs’ contract claims exist independently from the collective bargaining process governed by the RLA. The gravamen of the state claims at issue herein involves the separate bankruptcy-related commercial transaction that resulted in American purchasing TWA I’s assets. In the course of that transaction, it is true that Plaintiffs bargained away rights secured by their CBA with another party. However, an interpretation of those rights is unnecessary to determine whether Plaintiffs received from Defendants the consideration Defendants promised, none of which was even provided for in a CBA. This Court can determine, for example, whether Defendants lived up to the promises set forth in, among other places, the March 9 and March 30 letters without interpreting the Allegheny-Mohawk provisions sacrificed in reliance upon the same promises. For these reasons, Defendants’ Motions must fail.
II. PLAINTIFFS’ CLAIMS ARE NOT PREEMPTED BY UNION DEFENDANT’S DUTY OF FAIR REPRESENTATION BECAUSE THE CONDUCT ALLEGED IN THE AMENDED COMPLAINT DEALS, NOT WITH “REPRESENTATIONAL CONDUCTâ€￾ IN AN AREA GOVERNED BY THE RLA, BUT RATHER WITH CONDUCT THE UNION DEFENDANT DIRECTED AT PLAINTIFFS OUTSIDE OF THE SCOPE OF RLA BARGAINING

Defendants seek to overcome the overwhelming weight of precedent set forth above by mischaractering Counts II through VIII as “mere refinementsâ€￾ of a duty of fair representation claim. This argument is especially curious given their free admission, during the operative period covered by the Amended Complaint that neither the Defendant Union nor Company Defendants had an RLA-imposed bargaining obligation toward Plaintiffs. A close reading of the cases cited by Defendants would seem to require, as a pre-condition to preemption, at the very least, that the parties be engaged in bargaining governed by the RLA.
In the present case, at the time most of the actionable misrepresentations and promises were made to Plaintiffs, it was not even an accomplished fact that Company Defendants would become their employer or that the Union Defendant would represent the Plaintiff class. Recall that the misrepresentations and promises pre-dated, in some instances, a full year before American became Plaintiffs’ employer. Before that designation could even occur, the Asset Purchase Agreement had to receive approval from the Bankruptcy Court and the NMB had to grant single carrier designation. Neither act was guaranteed at the time most of the misrepresentations and breached promises were made. In sum, during the applicable time period, by Defendants’ own admissions, Defendants and Plaintiffs bore no other relationship to each other, other than as parties attempting to negotiate an arms-length commercial agreement that would just happen to touch on future employment matters. Indeed, as is clearly alleged at 91 of the Amended Complaint, American would not even allow Plaintiffs’ certified representative into the negotiations that led to the SIA.
Defendants’ motions, once again, place the cart before the horse. The RLA only governs relations between “employees,â€￾ their “representativesâ€￾, and “carriersâ€￾. Section 151 Fifth, 45 U.S.C. 151 Fifth, defines “employeeâ€￾ to include “every person in the service of a carrier (subject to its continuing authority to supervise and direct the manner of rendition of his service) who performs any work defined as that of an employee or subordinate official . . .â€￾ (Emphasis supplied.) Under this standard, Plaintiffs clearly were not “employeesâ€￾ of American because it was not during the relevant period in a position to supervise work performed, not for American, but for TWA I & II, separate carriers until March, 2002.
All cases cited by Defendants to preempt Plaintiffs’ claims involve disputes between employees or employee representatives and carriers. Those cases cannot be used here to preclude the Plaintiffs’ claims against carriers with whom they had no employment relationship during the relevant time period and a union representative that never spoke for them. To rule otherwise, would apply the RLA where it was never intended by Congress to apply. In fact, no other Court has ever adopted the expansive reading of the RLA urged upon this Court by Defendants herein.
Therefore, Defendants’ attempts to mischaracterize Plaintiffs’ claims as unfair labor practices re-packaged as state law violations are not well-taken. Indeed, assuming that the Defendants’ actions in the fall of 2001 constituted the breach of the promises made in the spring of 2001 (as must be done in ruling on this motion to dismiss), Plaintiffs could not have raised American’s breaches/ misrepresentations with the adjustment board because American had not been designated Plaintiffs’ employer either at the time American made its commitments or at the time of their breach. Similarly, Plaintiffs could not have challenged Union Defendant’s 2001 conduct with the Board as Union Defendant had not been designated the bargaining representative of Plaintiffs until April 2002.


The language of the RLA in this regard is clear. Under sections 183 and 184 the only disputes subject to the jurisdiction of the National Mediation Board, System Board of Adjustment, and National Air Transport Adjustment Board are those between “an employee or group of employees and a carrier or carriers by air . . .â€￾ 45 U.S.C §§183-5.
In seeking to block Plaintiffs from seeking recourse in the federal courts for the wrongs alleged in the Amended Complaint, Defendants would create a legal no-man’s land, preempting federal court jurisdiction over cases the adjustment boards could never hear. As set forth above, such a result would clearly frustrate Congressional intent which never required such a broad preemptive result. For this reason, Defendants’ reliance on Nellis , May and Bensel , all cases involving employees, their representatives and their carriers, is misplaced. In each case, Plaintiffs had recourse to, and in the case of Bensel, availed themselves of the dispute resolution procedures set forth in an applicable CBA and, more importantly, could have submitted claims to the adjustment boards for remedial action.
In Nellis, which was decided five months before Hawaiian Air, the United States Court of Appeals for the Fourth Circuit affirmed a lower court ruling preempting state law claims for breach of contract, promissory estoppel, and tortious interference. However, in stating that those state law claims, in that case, were “mere refinementsâ€￾ of the union’s duty of fair representation, the Court explicitly acknowledged that “labor unions may contractually obligate themselves to duties which exceed those embodied in their federal duty of fair representation.â€￾ 15 F.3d at 51. It is precisely the claim of the Plaintiffs in this case that Union Defendant, not as their certified bargaining representative but as a separate commercial actor, breached various state law obligations it had made over and above any relevant CBA.
In May, Plaintiffs sued their certified bargaining representative for various state law violations and for a breach of its duty of fair representation. The Court found, in rather conclusory fashion, that, because the duty of fair representation claim and state law claims were identical to one another, the state law claims were pre-empted. In the case at bar, however, the conduct that forms the basis of Plaintiffs’ state law claims could not be subsumed by a DFR claim, because no such duty could possibly arise between Plaintiffs and Union Defendant. See Section III below. To begin with, the conduct involved was, not of a bargaining representative with a duty of fair representation, but rather of an unrelated third party making representations in the course of negotiations not subject to the RLA.
In addition, even assuming May’s application to the present set of facts, the conduct violating state law is separate and distinct from the conduct that would make up the DFR violation, assuming such a DFR existed. The central elements of a state law violation involve the conduct of Defendants and whether they ever intended to honor their commitments. This conduct can be measured without reference to the language in a collective bargaining agreement that does not even exist between American and Plaintiffs. Moreover, if APFA and American seek to use the CBA between Plaintiffs and TWA I & II (which they lack standing to do), there is no dispute about what the terms of that agreement say with respect to the operative issue, seniority. There is, therefore, no “interpretationâ€￾ of the seniority provisions that needs to take place.
Reliance on the recent unpublished Bensel decision, which is not binding on this Court, is similarly flawed. In Bensel, American’s incumbent union and the union representing TWA pilots attempted to negotiate an agreement on seniority integration. In stark contrast to the present set of facts, American honored its promise to engage in facilitation with the TWA pilots’ union and the incumbent American pilots’ union to secure an agreement on seniority integration. However, those negotiations proved unsuccessful. It was at that point, after first attempting to negotiate with the TWA pilots’ union, that American and its incumbent union ultimately imposed their own agreement on the non-incumbent employees. Plaintiffs’ suit followed and defendants moved to dismiss.
In ruling on the motion, Bensel (which, on information and belief is under appeal), the Court focused on the defendants’ conduct during the facilitation process which included plaintiffs’ certified union representative and, by then, the carrier for whom they legally worked. The Court found that the process was subject to the RLA and, therefore, preempted plaintiffs’ state law claims.
In the case at bar, Plaintiffs’ focus has always been on the failure to engage in the process that American provided to other crafts. This is a distinction with a difference. In Bensel, the gravamen of the complaint focused on RLA-regulated conduct during an RLA-regulated facilitation process involving the pilots’ RLA-certified bargaining representative. None of that activity ever occurred in the present case. The gravamen of the Amended Complaint at bar is on the provision of the facilitation process vel non. In the former case, the Court ruled that RLA preemption applied. In the present case, the parties never got to the point where the RLA could apply.
Reliance on Bensel is misplaced for the further reason that it was CLEARLY decided incorrectly. Indeed, Bensel relies upon Cater v. Smith Food King, 765 F.2d 916 (9th Cir. 1985), decided nearly a decade before Hawaiian Air, and Arnold v. Air Midwest, Inc., 877 F.Supp.1452
(D.Kan. 1995), which directly contrary to Judge Irenas’ opinion, ruled that Plaintiffs’ claims WERE NOT PREEMPTED under the RLA. See, Bensel at 24.
In Arnold, plaintiff challenged his termination after exhausting his remedies under the CBA. Plaintiff claimed that defendant terminated him without just cause in violation of section 19 D of his CBA and various sections of his employee handbook. He also alleged tort violations for defamation, intentional interference with contract, and retaliatory discharge for insisting that the airline defendant comply with FAA regulations.
In rejecting defendant’s “vigorousâ€￾ arguments for pre-emption, the Court made clear the proposition that Plaintiffs at bar seek to have this Court enforce: “the RLA’s mechanism for resolving disputes does not pre-empt causes of action to enforce rights that are independent of the collective bargaining agreement.â€￾ 877 F.Supp. at 1460. Citing Hawaiian Air, the Court made it clear that:
. . .[E]ven if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state law claim can be resolved without interpreting the agreement itself, the claim is “independentâ€￾ of the agreement for . . . pre-emption purposes.

877 F. Supp at 1460 (Quoting Hawaiian Air at 262, quoting Lingle 486 U.S. at 409-410).
In the case at bar, there is, of course, no CBA between Plaintiffs and American and APFA to dispute. But, even if there were, the elements of the state law violations Plaintiffs assert can be judged separate and apart from those that would determine whether a contractual breach occurred. This conclusion is not altered merely because the same facts would be used to evaluate a putative
contractual breach as those to evaluate Plaintiffs’ other state common law claims. For that reason, Plaintiffs’ claims are not subject to RLA preemption.
III. APFA’S REPRESENTATIONAL CONDUCT ON BEHALF OF ITS MEMBERS CANNOT SERVE AS A BASIS OF FEDERAL PREEMPTION OF PLAINTIFFS’ STATE LAW CLAIMS.

Union Defendants argue that “the Courts have held that state law claims of union misconduct are preempted whenever the acts or omissions at issue involve the union’s collective bargaining or representational functions, or are otherwise subject to the union’s statutory duties as exclusive representative, because that relationship is governed solely by the federal DFR.â€￾ This would be a brilliant argument for preemption if plaintiffs herein were, during the relevant period, members of the Union Defendant. However, as the cases Union Defendant cites in support of the above proposition make clear, the preclusive effect of the federal DFR applies only where a union is acting in its representational capacity for its members. Not one single case cited by Union Defendant involved a union obtaining preemption of state law claims brought by parties the union did not represent. Since the Plaintiffs in the case at bar were never, during the relevant period covered by the Amended Complaint, represented by Union Defendant, its DFR to its members cannot be used to preempt non-members’ claims.
Attempts to use Union Defendant’s DFR to preempt Plaintiffs’ claims represent a profound misunderstanding of the unique purposes behind the duty of fair representation doctrine. As made clear by the U.S. Supreme Court in Vaca, the DFR arises only because individual employees subvert their individual interests for the collective good of all employees in a bargaining unit. 386 U.S. at 182. Because individual employees give up many of their individual rights, Vaca and its progeny impose upon unions a DFR not to act in an arbitrary or capricious manner toward an individual employee.
That concern does not apply to the present set of facts. Where, as in the present case, the allegations involve a union’s conduct toward individuals it did not represent, there can be no DFR to preempt Plaintiffs’ claims. Put more simply, where individual employees do not receive the benefit of the DFR, they cannot be required to forfeit the individual rights otherwise exchanged to secure the DFR they do not receive. To hold otherwise and foreclose judicial redress for wrongs committed by Union Defendant against Plaintiffs would give the Union Defendant, which completely disavows its DFR toward Plaintiffs, sole power to determine how those wrongs are addressed. This would stand the DFR, the individual employee’s “bulwarkâ€￾ against “arbitrary union conduct,â€￾ on its head in a way Congress clearly never intended. See, Vaca, 386 U.S. at 182.
Similarly, Union Defendant cannot immunize its wrongful conduct toward Plaintiffs merely by arguing that it occurred in furtherance of its DFR . Such an argument mischaracterizes the allegations in the Amended Complaint. Plaintiffs do not seek, as Union Defendants contend, to hold Union Defendant liable for carrying out its DFR toward its members. Plaintiffs seek to hold the Union Defendant accountable for their conduct toward Plaintiffs as opposite parties to an arms-length commercial transaction.
In other words, while it is true that federal law imposes upon the Union the duty to zealously and fairly represent its membership, state law also imposes upon the union the duty to carry out that representation according to certain proscribed rules. The federal and state duties are not mutually exclusive. A union could not, in the most extreme example, engage in activity that violates state criminal law and avoid accountability merely because it was acting in furtherance of its DFR. By the same token, Union Defendant cannot escape state law prohibitions against fraud and misrepresentation toward individuals it does not represent simply because its fraud and misrepresentation occurred during the course of its representation of its members. More bluntly, the DFR does not provide general license to labor organizations to lie to parties it does not represent. Enforcing state law in this regard does not, moreover, extend the DFR to individuals a union does not represent.
Union Defendant’s reliance in this regard upon McNamara-Blad and BIW Deceived v. Local S6, Indus. Union of Marine and Shipbuilding Workers of Am., IAMAW Dist. Lodge 4, et. al., 132 F.3d 824 (1st Cir. 1997) is misplaced as both cases are easily distinguishable. In McNamara-Blad, the specific issue for review involved whether the defendant union owed plaintiff flight attendants a DFR under the RLA. Much like the case at bar, the union represented a group of non-party flight attendants at a company that was purchased by American Airlines. The plaintiff flight attendants were members of a bargaining unit from the company American purchased. Plaintiffs’ complaint raised only the issue of whether the union’s negotiation of an integration agreement created a DFR to represent the plaintiffs, something not presently at issue in the case at bar. Significantly, in contrast to the allegations of the Amended Complaint in the present case, plaintiffs never challenged, on state law grounds, the union’s conduct outside of the negotiation of the integration agreement and, therefore, the Court never decided the issue of whether a union’s DFR toward its members could preempt state law claims brought by individuals the union did not represent.



For the same reason, BIW Deceived does not apply to the present set of facts. In that case, the United States Court of Appeals for the First Circuit evaluated a claim brought by members of the defendant union for alleged misrepresentations it made during an interview process governed by a CBA. The Court found that the union acted in a representational capacity to these members during the time in which the alleged misrepresentations were made. The Court did not specifically address whether plaintiffs’ state law claims were preempted by the DFR under Section 301 of the LMRA. In dicta, the Court suggested, however, that because Plaintiffs effectively alleged a breach of duties under the CBA, its state law claims were preempted under §301 by the union’s DFR to plaintiffs.
In doing so the Court cautioned that § 301’s preemptive effects were not “endlessly expansive.â€￾ 132 F.3d at 830. Where, as here, the claims involved “non negotiable rights conferred on individual employees as a matter of state lawâ€￾ that rely upon “purely factual questions about an employee’s conduct and an employer’s conduct or motives,â€￾ there is no preemption. Id. In other words, preemption will occur only where the claims to be preempted “depend upon the meaning of the collective bargaining agreement.â€￾ Id. Since the state law claims of the Plaintiffs at bar do not require interpretation of a collective bargaining agreement, they cannot, as a matter of law, suffer preemption.



IV. THE IAM HAS STANDING TO PURSUE CLAIMS UNDER THE RLA ON BEHALF OF PLAINTIFFS FOR MATTERS THAT OCCURRED DURING THE PERIOD WHEN IT WAS PLAINTIFFS’ CERTIFIED BARGAINING REPRESENTATIVE.

Company Defendants assert in Section II of their brief (att pps 7-11) that “non-certified individuals or groups of employees do not have standing to present . . . claims under the RLA because they have no representative status to deal with the carrier.â€￾ This conclusion overlooks the important fact that, during the period relevant to the Amended Complaint, the IAM was the certified bargaining representative of the Plaintiff class. For this reason, the cases cited by Company Defendants for this proposition are distinguishable on their facts. But, even assuming an arguable application of the facts of those cases to the ones presently before the court, the cases do not stand for the proposition that Company Defendants put forth.
Company Defendants’ dubious reliance on Chicago & N.W.Ry. Co. v. United Transportation Union, 402 U.S. 570 (1971) is illustrative. They cite the case at page 8 of their brief for the proposition that “only certified representatives may bring [§ 151 and 152 actions] against a carrier to enforce bargaining rights under the RLA.â€￾ However, the case involved a company’s suit under the Norris Laguardia Act, 29 U.S.C. 101, et. seq., to enjoin the defendant union’s strike activity. That the defendant union was a proper party was never at issue. Indeed, it was not the defendant union attempting to obtain relief on behalf of its members for any putative violations of the RLA, but rather the company seeking to hold the union accountable for an allegedly illegal strike. 402 U.S. at 574.

Virgin Atlantic Airways, Ltd. v. National Mediation Board, 956 F.2d 1245 (2nd Cir. 1992), also cited by Company Defendants to deprive IAM of standing, examined a representational dispute involving the National Mediation Board’s (“NMBâ€￾) refusal to certify the Teamsters as plaintiffs’ bargaining representative. The specific question for review by the Second Circuit involved the jurisdiction of the District Court to review the NMB’s certification decision. The issue of standing was never addressed. See also, Switchmen’s Union of N. Am. v. National Mediation Board, 320 U.S. 297 (1943) cited at page 9 of Company Defendants’ brief (Dispute between Switchmen’s Union and Brotherhood of Railroad Trainmen. Held: NMB’s certification process not subject to review by District Court’s except in limited circumstances. No discussion of standing issue.) Accord, see, Air Line Pilots Ass’n, Int’l. v. Texas International Airlines, Inc., 656 F.2d 16 (2nd Cir. 1981) (No discussion of standing issue. Held: Representational dispute within exclusive jurisdiction of NMB and not subject to judicial review.)
Adams v. Federal Express Corp., 547 F.2d 319 (6th Cir. 1976), principally relied upon by Company Defendants as support for their standing argument, did address the issue of standing. However, the facts do not square with those pled in the present Amended Complaint. In Adams, the Teamsters and four individual employees brought suit under the RLA seeking re-instatement when the individual employees were discharged after an unsuccessful attempt to have the Teamsters certified as their bargaining representative. In stark contrast to the IAM in the case at bar, the Teamsters had never been certified as bargaining representative for the plaintiffs therein.
Explicitly relying on Int’l Bhd of Teamsters, Chauffeurs, Warehousemen and Helpers of Am. v. Zantop Air Transp. Corp., 394 F.2d 36 (6th Cir. 1968), the Court found no right of action under the RLA for “an uncertified union to file suit on behalf of employees it seeks to represent.â€￾ 547 F.2d at 323. Zantop, like Adams, involved a suit brought by a union that had never been designated exclusive bargaining representative of defendant’s employees. The Sixth Circuit went out of its way, in fact, to point out that the Teamsters were not the certified representative “at the time the suit was instituted or at any time thereafter.â€￾ Id. The Court thereby suggested that a union certified prior to filing a suit could maintain an action for conduct occurring on its watch. Other than this “suggestion,â€￾ however, the Court was silent on the standing of de-certified unions to bring suit on behalf of its members for wrongful conduct occurring during the period it was certified.
In the present case, the IAM, during the relevant period in question, was not an “uncertifiedâ€￾ representative “seeking to representâ€￾ plaintiffs. During the relevant period, it was the certified representative of plaintiffs. It was not “seeking to representâ€￾ Plaintiffs. Its representation was an accomplished fact. This is an important distinction. Because the IAM was the certified representative during the relevant period of time, it was the only representative that could have brought suit under the RLA to address Defendants’ wrongful conduct.
Indeed, the obvious question posed by the Company Defendants’ rather stilted argument can be stated simply as: “If not the IAM, then whom?â€￾ Assuming it wanted to---a rather dubious assumption under the circumstances---APFA certainly could not bring suit under the RLA for conduct occurring prior to its designation as bargaining representative. Since Company Defendants argue that individual plaintiffs cannot bring such claims, the only conclusion left to draw is that Company Defendants believe that the claims Congress provided for should go unaddressed. As the Court suggested in ALPA, this would amount to providing the “rightâ€￾ to collective bargaining without the legal sanctions necessary to back that right up and give it real meaning. Such a result would “[rob] the [RLA] of its vitality and [thwart] its purpose.â€￾ 656 F.2d at 21.
V. PLAINTIFFS’ STATE LAW CLAIMS AGAINST APFA (II, III, VI and VIII) ARE WELL PLEADED AND CANNOT, AS A MATTER OF LAW, BE DISMISSED WHERE THEY RAISE TRIABLE ISSUES OF MATERIAL FACT

Section IV of Union Defendant’s brief dresses up a Rule 56 motion in Rule 12(B)(6) clothes. The resulting rhetorical outfit does not match. In argui

 

[Royal Ambassador]

Continuation:


A. COUNT II OF THE AMENDED COMPLAINT FOR BREACH OF CONTRACT STATES A CLAIM AGAINST UNION DEFENDANT AND RAISES TRIABLE ISSUES OF MATERIAL FACT.

As to Union Defendant, Count II alleges a third-party beneficiary claim for its role in breaching the SIA. Footnote 10 of Union Defendant’s brief (page 22) raises an issue of material fact as to whether Plaintiffs were intended third-party beneficiaries and, for support, cites a string of cases, none of which were decided under the rigid standards that a 12(B)(6) motion must satisfy. At best, this argument is more appropriately raised after discovery is completed and all witnesses have had an opportunity to swear an oath as to what the parties intended in entering the agreement and, specifically, whether Plaintiffs were intended beneficiaries.
Union Defendant also argues that, even if Plaintiffs were intended third-party beneficiaries of the SIA—an indisputable proposition under the contract’s plain language---the Plaintiffs received the benefit of APFA’s Faustian bargain. Again, Defendant’s argument raises a fundamental issue of material fact. It is precisely Plaintiffs’ contention that they did not receive even the severely restricted “benefits†the SIA promised in §III.B., in that Plaintiffs did not receive credit for TWA service in determining classification and company seniority. AC 94. Defendant’s argument that this denial did not breach the SIA depends upon its interpretation of the language “consistent with American’s previously-stated position†which Defendant interprets as American’s October 2001 pronouncements and Plaintiffs interpret as American’s March 2001 letter and April 16, 2001 website posting. In either event, the issue presents the classic factual dispute, inappropriate for summary decision by this Court, especially before the close of further discovery.

B. COUNT III OF THE AMENDED COMPLAINT FOR FRAUDULENT MISREPRESENTATION STATES A CLAIM AGAINST UNION DEFENDANT AND RAISES TRIABLE ISSUES OF MATERIAL FACT.

Defendants argue that Plaintiffs may not base their claim for fraudulent misrepresentation on APFA’s March 21, 2001 resolution because it was an internal statement of the APFA Board of Directors that merely guided the union’s negotiations with American. This conclusion, of course, begs the larger question of why it was released to the public on the “APFA Hotline.†AC 59. More to the point of responding to Defendant’s motion, however, the Plaintiffs are entitled through this litigation to explore their good faith belief that the resolution was intentionally made by the APFA Board of Directors with the more sinister motive of inducing Plaintiffs into a false sense of security at a time when they were weighing their options in response to TWA’s motion under section 1113 of the Bankruptcy code. After all, APFA potentially stood to gain 4200 new dues paying members if it played its cards right. In this regard, Plaintiffs find the timing of the resolution so close to the 1113 motion curious to say the least. Moreover, the fact that the resolution ultimately may have been “unacceptable to IAM and its members†is irrelevant to determining whether Plaintiffs were justified in relying on this pronouncement of APFA’s bargaining policy. Again, the conflict is factual in nature and clearly involves issues of material fact.
Defendant cannot escape this factual dispute by pointing to the consistencies between the resolution and SIA. The fact that the March 21 resolution and the SIA are largely consistent is of little import. The precise issues that the fact finder must ultimately decide is whether Union Defendant honored the commitments in these documents and in the discussions surrounding them, and, if not, whether Defendant ever intended to do so. The Plaintiffs plead “no†in response to these questions and point to, among other things, the denial of seniority benefits in section 5 of the Resolution and §III.B of the SIA and the utter abrogation of the unequivocal promise made to Plaintiff Cooper that stapling would not occur.
Resolution of the issue Union Defendant raises in this regard requires the Court to focus only on the elements necessary to establish a claim for fraudulent misrepresentation and, from there, determine whether the Amended Complaint states facts sufficient to satisfy each of those elements. As Defendant points out, a claim for misrepresentation requires that the defendant (1) with the intent to deceive and induce reliance (2) knowingly make a misrepresentation (3) of material fact (4) upon which plaintiff reasonably relies (5) in parting with something of value or refraining from obtaining something of value (6) thereby causing injury. Pappas v. Harrow Stores, Inc., 528 N.Y.S.2d 404, 407 (N.Y. App. Div. 1988), Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 421 (N.Y. 1996). These elements are clearly alleged in paragraphs 136 to 140 of the complaint and, for that reason alone, the motion under 12(B)(6) must be dismissed. Similarly, Rule 56 provides no refuge to Defendant in that Plaintiff is entitled to pursue its theory of the facts, as partially revealed in Exhibit 2, through the discovery process which has already, as set forth above, uncovered triable issues of material fact.




C. COUNT VI OF THE AMENDED COMPLAINT FOR BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING STATES A CLAIM AGAINST UNION DEFENDANT AND RAISES TRIABLE ISSUES OF MATERIAL FACT.

Implied in every contract is the duty of good faith and fair dealing. Rowe v. Great Atlantic & Pacific Tea Co., Inc., 46 N.Y. 2d 62 (N.Y. 1978). The duty is breached when a party “acts in a manner that, although not expressly forbidden by any contractual provision, would deprive the other party of the right to receive the benefits under their agreement.†Jaffe v. Paramount Communications, Inc., 222 A.D. 2d 17, 22-23 (N.Y. App. Div. 1996). The fact-bound theory expressed in Count VI against Union Defendant is simply this: that it acted in a manner that frustrated Plaintiffs’ ability to enjoy the wilted fruits provided to them as third-party beneficiaries under the SIA. None of the cases cited by Union Defendant deny a third-party beneficiary of an agreement from receiving the protection of the implied covenant of good faith and fair dealing. Indeed, it would seem inconsistent with the doctrine’s purpose to provide the protection it provides to a party, but deny it to an intended beneficiary. Perhaps because this conclusion is so fundamental, there does not appear to be any case law examining that issue.
Moreover, to state, as Union Defendant has, that the only violation of the covenant alleged by the Plaintiffs was the so-called “stapling†of the TWA seniority list, once again, misapprehends the allegations in the complaint. While Union Defendant’s complicity in the “stapling†certainly helped American accomplish its breach of the duty, Union Defendant’s conduct as a whole as alleged throughout the amended complaint and in paragraphs 1-102, incorporated by reference into Count VI, was the instrument by which it acted to deprive Plaintiffs of their right under §III.B of the SIA to receive proper classification and company seniority.


D. COUNT VIII OF THE AMENDED COMPLAINT FOR QUANTUM MERUIT STATES A CLAIM AGAINST UNION DEFENDANT AND RAISES TRIABLE ISSUES OF MATERIAL FACT.

Union Defendant argues that Plaintiffs fail to establish the elements for a claim of unjust enrichment which Plaintiffs concede include the following: “(1) the performance of services in good faith; (2) acceptance of the services by the person to whom they are rendered; (3) an expectation of compensation therefor; and (4) the reasonable value of the services.†See, Union Defendant’s Brief in Support of Motion to Dismiss at 26 (citing Joan Hansen & Co., Inc. v. Everlast World’s Boxing Headquarters Corp., 744 N.Y.S.2d 384, 389 (N.Y. App. Div. 2002)). However, Union Defendant’s application of the above standard to the present set of facts necessarily depends upon a reading of the term “services†that is far too narrow. Union Defendant apparently reads the term to include services rendered in the performance of an employment obligation without any citation to authority for the proposition. While the issue has apparently never arisen in any other reported case, Plaintiffs assert that the term “service†is more synonymous with “performance.â€
The performance or service Plaintiffs provided in good faith to Defendant Union involved the waiver of its LPPs which the March 21 resolution and prior conduct sought to induce. Union Defendant certainly did nothing to dissuade or stop Plaintiffs from the waiver and thereby implicitly accepted it along with the union dues Defendant eventually obtained from Plaintiffs after it was certified as their bargaining representative. Plaintiffs certainly expected that they would at least receive the benefits set forth in the March 21 APFA resolution and undeniably gave value to all Defendants by waiving the LPPs. Company Defendants accomplished a multi-million dollar acquisition under budget and Union Defendant got the benefit of the greater opportunity provided by American’s expanded capacity. Accordingly, Union Defendant’s motion in this regard must be denied.
CONCLUSION
Plaintiffs, 4200 hard-working Americans that routinely put their lives at risk for the flying public, seek only to have this Court affirm their basic right as citizens to allow a jury of their peers hear their plea for justice. Plaintiffs believe strongly that they were lied to and duped into sacrificing the security that they fought their entire careers to obtain. This Court has an obligation to see to it that those lies be punished. The alternative leaves to a soulless and heartless Darwinian economic system, the hopes, dreams and security of common people. More importantly, dismissal sends the wrong message to commercial actors that lying is acceptable commercial behavior. Any system founded on these twin principles in unjust and doomed to fail.
Plaintiffs claims deserve the sunlight that a jury’s focus and a public trial bring. Under the clear fifty year line of precedent cited herein, they are not properly per-empted. They clearly set forth adequate facts to state claims under state law. For all of these reasons, the 4200 members of the putative class beg this Court to affirm their fundamental right to be told the truth.
Respectfully submitted

 

[QQ3270]

THEY ARE GOING TO LOOSE LIKE WE DID JUST AMATTER OF TIME

THEY ALL READY LOST ONE OF THE ROUNDS IN COURT


TIME WILL TELL

 

[Royal Ambassador]

THEY ARE GOING TO LOOSE LIKE WE DID JUST AMATTER OF TIME

THEY ALL READY LOST ONE OF THE ROUNDS IN COURT


TIME WILL TELL

Yours is a knee jerk reaction if I ever saw one. I have barely posted it a couple of minutes ago. Even Evelyn Woods' star students would not have been able to read it in the period of time that passed between the time it was posted and the time that your reply appeared.

 

[twasilverbullet]

Reno,
That "round" had nothing to do with this case. Read before you reply and stop making a fool of yourself.

 

[Hunter]

THEY ARE GOING TO LOOSE LIKE WE DID JUST AMATTER OF TIME

THEY ALL READY LOST ONE OF THE ROUNDS IN COURT


TIME WILL TELL

So, which is it?

1. They are going to loose.

2. Time will tell.

In all seriousness, I have read your case and unfortunately for you, the facts are very dissimilar to those of the former TWA F/As case. Regretably, Reno F/A's were not successful in their claim for seniority integration. Comparing the facts of the TWA F/A's case to that of Reno F/A's is like comparing apples to oranges. In the courts, cases often turn on very subtle differences in facts.

Your prediction about the outcome of this case is not supported by either an alternative legal theory or case law. Just because you have an opinion on an issue, does not mean that you should embarrass yourself by expressing it if it does not add anything to the conversation.

 

[MCI transplant]

<_< People, people, people! I do believe that a.a.and it's Unions, have misjudged the charictor of the TWA employee! We didn't keep TWA flying all those years because we were easy marks, or slackers! We've seen at least three seperate managements plonder the assests of a once great Airline, and still we had the fortitude to keep it going! So if you think we'll just roll-over and "Live with it!" Think again!!! :down:

 

[Garfield1966]

Royal,

That'st the readers digest version? Geez, I would hate to know what the unabridged version looks like. I'll try and read it when I get home.

Would it be possible for some one to make a clifff notes version?

 

[jsn25911]

Royal,

That'st the readers digest version? Geez, I would hate to know what the unabridged version looks like. I'll try and read it when I get home.

Would it be possible for some one to make a clifff notes version?

Garfield - Several people have tried numerous of times to give the "digest version" however, the statements we get are "get over it and move on". People do not want to face the facts of what was promised, nor how a union should act. I blame most of this on the current leadership of apfa. Had apfa had leadership that informed the membership of the real issues (rather than had their head in the sand) - we would not have the division that we have now. We should be working together to save our working rules and ALL jobs. Instead the inexperience of Ward led to gutting your contract just to harm the TWA people! It is quite abvious.

APFA has really created a MESS that I don't ever see any alleviationn until we all work together.

Another thought: If AA needed so much money to operate - where in the hell is it getting the money to purchase a shuttle? They have played this union like a "FOOL"

 

[jsn25911]

THEY ARE GOING TO LOOSE LIKE WE DID JUST AMATTER OF TIME

THEY ALL READY LOST ONE OF THE ROUNDS IN COURT


TIME WILL TELL

Yours is a knee jerk reaction if I ever saw one. I have barely posted it a couple of minutes ago. Even Evelyn Woods' star students would not have been able to read it in the period of time that passed between the time it was posted and the time that your reply appeared.

Yes - it is correct that the posting was made at 9:50a.m. and the reply was at 9:52.

Sometimes when people are not able to understand the concepts - they reply in denial. Unfortunately, I really like the RENO people, because I believe they were not treated fairly. Therefore, I will just accept that this person can not face the facts that TWA people have a good case, so therefore they need the denial in order to cope.

 

[FWAAA]

APFA has really created a MESS that I don't ever see any alleviationn until we all work together.

Another thought: If AA needed so much money to operate - where in the hell is it getting the money to purchase a shuttle? They have played this union like a "FOOL"

I agree with you that the union really created this mess, not AA.

On the possible shuttle purchase, would you rather that another airline get the US shuttle for a cheap price or would you rather that AA buy it (increasing AA's revenue and increasing the odds that former TWA FAs eventually get recalled)?? I'm in favor of the latter, not the former.

Where is AA getting the money? Concessions, sale of Orbitz stock, sale of convertible notes, operating cash flow, etc. $3 billion in the bank and eight times that much in debt, but sometimes you gotta spend money to make money.