Pilkington v. United Airlines

United States Court of Appeals,
Eleventh Circuit.
No. 96-2539.
Arnold D. PILKINGTON, Rick Q. Dacosta, John P. Hlavacek, William
P. O'Brien, Brian N. Walker, Meryl Getline, Joseph Salomone,
Michael S. Custer, Leonard H. Gieschen, Plaintiffs-Appellants,
v.
UNITED AIRLINES, Air Line Pilots Association, International,
International and Air Line Pilots Association, Master Executive
Council for United Airlines, Defendants-Appellees.
May 22, 1997.
Appeal from the United States District Court for the Middle
District of Florida. (No. 92-1032-CIV-T-17B), Elizabeth A.
Kovachevich, Chief Judge.
Before COX, Circuit Judge, KRAVITCH, Senior Circuit Judge, and
STAGG*, Senior District Judge.
STAGG, Senior District Judge:
Plaintiffs/appellants are nine non-striking pilots for United
Airlines ("United"). Plaintiffs brought suit against United
Airlines and the Airline Pilots Association ("ALPA") and the ALPA
Master Executive Council ("MEC")1 based on post-strike harassment
of the non-striking pilots. The district court granted summary
judgment in favor of United and ALPA, ruling that plaintiffs' civil
Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18
U.S.C. § 1961, et seq., claims were not filed within the requisite
statute of limitations and that all of plaintiffs' state-law claims
were preempted by the Railway Labor Act ("RLA"), 45 U.S.C. § 151 et
*
Honorable Tom Stagg, Senior U.S. District Judge for the
Western District of Louisiana, sitting by designation.
1
Defendants ALPA and MEC are referred to collectively as
"ALPA." The MEC is the ALPA body that represents United pilots.
seq.
The plaintiffs appeal the grant of summary judgment on all of
their federal and state-law claims against United and ALPA. The
plaintiffs' RICO claims were not filed within the four-year statute
of limitations provided for civil RICO actions and the plaintiffs'
state-law claims are preempted by the RLA.
We affirm.
I. FACTS AND PROCEDURAL HISTORY
Prior to 1985, the pilots of United operated under a
collective bargaining agreement negotiated between United and ALPA.
On May 17, 1985, ALPA declared a strike against United that lasted
twenty-nine days. In anticipation of this strike, United recruited
"fleet qualified" pilots, i.e., pilots already experienced and
qualified to operate the aircraft then in United's fleet. These
pilots were hired as permanent employees to replace the striking
pilots. United ultimately hired 539 replacement pilots, including
eight of the nine plaintiffs in this case. Plaintiff, Joseph
Salomone, was already a pilot for United when the strike began, and
he continued to work for United during and after the strike. Each
fleet qualified pilot received a letter confirming that the pilot
was being hired as a permanent replacement for striking pilots and
that the job offer would remain valid even if a settlement were
reached between United and ALPA. The employment letters also
represented that due to the fleet qualified pilots' commitment
during the strike, the pilots would have the full support of
management in any difficulties they encountered during their
employment.
The strike was settled on June 15, 1985, at which time ALPA
and United formed a new collective bargaining agreement (the "1985
Agreement") which governed the employment of all pilots employed by
United, including the plaintiffs. As part of the settlement, ALPA
and United executed a "Back-to-Work" agreement, setting forth the
terms under which striking pilots would return to their jobs. This
agreement contained a "no-reprisal" clause which provided in
pertinent part:
The Association and the Company agree that neither will engage
in or condone any activities which might constitute reprisals
or recriminations as a result of the ALPA strike.... ALPA
agrees not to level fines or take action against non-striking
pilots.
On April 3, 1987, United and ALPA executed a "Letter of
Agreement," wherein United agreed to retain the replacement fleet
qualified pilots on the condition that they be placed below the
returning fleet qualified pilots on the United-ALPA seniority list.
ALPA agreed not to challenge that placement. This agreement also
contained "no-reprisal" clauses in which ALPA agreed to take
"extensive active measures to eliminate the residual tension
between those pilots who struck and those who worked during the
strike." United further agreed "to take extensive measures to
restore a positive working relationship with all pilots."
The plaintiffs allege that harassment commenced with the
strike in May of 1985. Plaintiffs allege that they underwent
continuous, illegal harassment from ALPA pilots for working during
the strike and that the harassment continues to this date. The
harassment alleged includes, inter alia, physical threats,
vandalism, assault and battery, the theft and destruction of
personal property, ostracism by ALPA pilots at work and during
flights, hate mail, verbal insults, and ridicule.
Plaintiffs contend that United and ALPA have breached the
no-reprisal clauses of the aforementioned agreements by condoning
the harassment against the fleet qualified pilots. They claim that
United has failed to enforce the agreements against ALPA and that
ALPA has condoned and actually encouraged the harassment. United
initially attempted to protect the plaintiffs through various
protective measures and by making strong statements against the
harassment. It is alleged, however, that within a few years of the
strike, United determined that, in an effort to further labor
harmony, it was more beneficial for it to please ALPA than for it
to protect the plaintiffs.
On March 23, 1994, the plaintiffs filed their first amended
complaint, alleging five claims for relief based on the post-strike
harassment.2 United and ALPA filed separate motions for summary
judgment. On March 27, 1996, the district court granted the
summary judgment motions of both United and ALPA, dismissing the
RICO claim and holding that all of the plaintiffs' state-law claims
were preempted by the RLA.
Additionally, this court notes that the Tenth Circuit has
already decided a case very similar in many respects to the case
2
The five claims alleged in the first amended complaint are
(1) violation of RICO; (2) tortious interference with a
contract; (3) tortious interference with a business
relationship; (4) breach of contract; and (5) fraudulent
misrepresentation. Originally, the plaintiffs alleged a
violation of the duty of fair representation under the RLA. This
claim was dropped, and the RICO claim inserted, in the first
amended complaint.
sub judice. In Fry v. Airline Pilots Association International and
United Airlines, Inc., 88 F.3d 831 (10th Cir.1996), the court
addressed the issue of RLA preemption of many of the state-law
claims that are raised in the current controversy before this
court. The background and basic facts of Fry are virtually
identical to those in the present case. Although the plaintiffs in
Fry are different from the plaintiffs in this case, both sets of
plaintiffs were part of the same group of fleet qualified pilots
employed by United during the strike and allegedly harassed during
and after the strike.
II. STANDARD OF REVIEW
This court reviews the grant of summary judgment de novo and
must determine whether there is a genuine issue of material fact
and whether the moving party is entitled to judgement as a matter
of law. Batey v. Stone, 24 F.3d 1330, 1333 (11th Cir.1994).
III. DISCUSSION
A. Plaintiffs' RICO Claims
1. The Proper Accrual Period Of Civil RICO Claims
Civil RICO actions are subject to a four-year statute of
limitations. Bivens Gardens Office Bldg., Inc. v. Barnett Bank,
906 F.2d 1546, 1550 (11th Cir.1990), cert. denied, 500 U.S. 910,
111 S. Ct. 1695, 114 L. Ed. 2d 89 (1991), citing Agency Holding Corp.
v. Malley-Duff & Assoc., 483 U.S. 143, 107 S. Ct. 2759, 97 L. Ed. 2d
121 (1987). The Supreme Court in Agency Holding, however,
expressly left open the question of when a civil RICO cause of
action begins to accrue. Bivens, 906 F.2d at 1550. In Bivens,
this court was called upon "to decide the appropriate accrual rule
to apply when the complaint alleges that, as the result of a
conspiracy to violate RICO and substantive violations of RICO, the
plaintiffs suffered several independent harms at the hands of the
defendants over a period of eight years." Id. at 1550. Adopting
the rule of "separate accrual," this court joined the Third Circuit
in Keystone Insurance Co. v. Houghton, 863 F.2d 1125 (3d Cir.1988),
in holding that when "a plaintiff [is] injured by one or more
predicate acts, a civil RICO cause of action for damages will not
accrue until the plaintiff knows, or should have known, of his
injury and that the injury is part of a pattern of racketeering
activity." Id. at 1554.
The plaintiffs in Bivens alleged three injuries: (1) the
wrongful takeover of Bivens Center, Inc.; (2) the mismanagement
and diversion of corporate assets; and (3) the wrongful sale of
the Bivens Gardens Hotel for less than its fair market value. Id.
at 1551. They alleged that these injuries were "continuing" and
"independent" so as to extend the accrual period for each RICO
claim. Id. at 1552. We held that the injuries were "separate and
independent" from the injuries flowing from the wrongful takeover
of the hotel. Id. at 1556. Thus, under the accrual rule announced
by this court in Bivens, a new RICO claim would begin to accrue
when the plaintiffs knew, or should have known, about a new and
independent injury and that the new and independent injury was the
result of a pattern of racketeering activity. See id.
In determining that these injuries were "separate and
independent" injuries, the Bivens court cited with approval the
language of the Second Circuit in Bankers Trust Co. v. Rhoades, 859
F.2d 1096, 1103 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109
S. Ct. 1642, 104 L. Ed. 2d 158 (1989), that "new and independent"
injuries would begin a new accrual period for the plaintiff's RICO
claims. Id. at 1552. Applying the rules set forth in Bivens to
the present case, we find that the district court was correct in
dismissing plaintiffs' RICO claims due to the running of the
statute of limitations.
For purposes of this analysis, the court will assume that
plaintiffs' RICO claims, first pleaded in their amended complaint
in March 23, 1994, were made retroactive to the date of their
original petition, July 24, 1992. The district court found that
the plaintiffs knew, or should have known, of their injury and that
it resulted from a pattern of racketeering activity by 1987, at the
latest. In 1986, plaintiff Arnold D. Pilkington and other pilots
formed an association known as the Fleet Qualified Pilots
Association ("FQPA"). Apparently, this organization was formed to
address and combat the continuing harassment that non-striking
United pilots faced from ALPA members. In July of 1987, Pilkington
and another pilot mailed letters to the fleet qualified pilots
asking for support of the FQPA. According to the district court,
these letters indicated that by July of 1987, the pilots (1)
believed that their mental distress and intolerable work situation
were caused by the alleged pattern of harassment by striking pilots
that had begun two years before; (2) believed ALPA and United were
responsible for the harassment; and (3) had consulted counsel with
respect to injuries suffered as a result of the harassment. These
letters, contained in the record, clearly establish that by the
period of July 1987 to December 1987, the fleet qualified pilots,
including the plaintiffs, had knowledge of their injuries and knew
that the injuries were caused by a pattern of harassment that had
begun as early as May of 1985. Thus, the plaintiffs' RICO claims
must have been filed by December 1991, at the latest, to avoid the
terminal effect of the statute of limitations. Plaintiffs, who
filed their RICO claims on July 24, 1992, did not file their RICO
claims timely.
Other facts in the record indicate that plaintiffs had
knowledge of their injuries and that the injuries resulted from the
pattern of harassment more than four years prior to July 1992. In
the original and amended complaints, plaintiffs allege that the
harassment began and became pervasive by the time the strike was
ending in late June of 1985. The allegations in the complaint make
it clear that the plaintiffs knew soon thereafter that the
harassment would continue, that it was part of a pattern, that it
was affecting their job performance, and that it was causing mental
and emotional suffering. The plaintiffs allege that this ongoing
pattern of harassment began in 1985. Thus, soon thereafter the
plaintiffs either knew, or should have known, that they were
suffering injuries and that the injuries were the result of a
pattern of harassment. Thus, at the latest, the plaintiffs should
have known of their injuries by July of 1987. At the earliest,
plaintiff's should have known of their injuries as July of 1986,
one year after the continuous harassment began. Plaintiffs did not
file suit until six years after July 1986 and five years after July
of 1987.3
Plaintiffs contend, however, that they did not know, or could
not have known, that they had been injured in their business or
property until 1990 when plaintiff Leonard Gieschen ("Gieschen")
elected to take an unpaid personal leave of absence from which he
never returned. It is alleged that Gieschen left his employment
with United due to the toll that the harassment had taken on his
job performance as well as his mental and emotional well being.
The damages alleged by Gieschen, however, are not mentioned in
either complaint filed by the plaintiffs. This issue is raised
before this court in the briefs filed by the plaintiffs and the
supplemental brief filed by Gieschen. In his brief, Gieschen
alleges that severe depression and mental and emotional problems
caused his leave of absence from United in 1990.
To the extent that Gieschen, or any other plaintiff, seeks to
recover under RICO for personal injury, or pecuniary losses
resulting from personal injury, this claim is not cognizable under
RICO. See Grogan v. Platt, 835 F.2d 844 (11th Cir.), cert. denied,
488 U.S. 981, 109 S. Ct. 531, 102 L. Ed. 2d 562 (1988) (Kravitch, J.).
In Grogan we stated: "[i]n our view, the ordinary meaning of the
phrase "injured in his business or property' excludes personal
injuries, including the pecuniary losses therefrom." Id. at 847.
Thus, to the extent that the plaintiffs claim that the emotional
3
Of interest to the court is the fact that on October 13,
1989, seven of the nine plaintiffs in this action filed suit in
the Northern District of Illinois (Pilkington v. Air Line Pilots
Assoc., International, No. 89 C 7754 (N.D.Ill.1989)) against ALPA
and United alleging, inter alia, that they had undergone a four
year campaign of harassment. The suit was voluntarily dismissed
by the plaintiffs soon after its filing.
and mental distress suffered by the harassment caused them an
"injur[y] in [their] business or property," this claim is
unavailing. The plaintiffs' reliance on this type of injury to
avoid the statute of limitations is also misplaced. An injury not
cognizable under RICO will not suffice as an injury sufficient to
begin the act's accrual period.
Moreover, Gieschen knew, or should have known, of his
injury—injury cognizable under RICO, such as injury in his business
or property, other than personal injury—many years prior to 1990.
The first amended complaint alleges that Gieschen was first
harassed on August 20, 1985. He was then harassed in July of 1986,
and again in August of 1987. Essentially, Gieschen was undergoing
the same pattern of harassment alleged by all plaintiffs that began
soon after the strike ended in 1985. Therefore, Gieschen knew or
should have known of his injury and that the injury was the result
of a pattern of racketeering activity as early as July 1986 or as
late as August 1987. Suit was filed in July of 1992, more than
four years after either of these dates.
2. Separate Accrual Rule
Plaintiffs claim that under the separate accrual rule adopted
in Bivens, each time the plaintiffs suffered injury from the
harassment a new RICO cause of action accrued. The harassment
suffered by the plaintiffs allegedly continued well after this suit
was filed in 1992. Thus, plaintiffs contend that new RICO causes
of action were accruing even after this suit was filed. Plaintiffs
argue that each act of harassment accounts for a new and
independent injury as contemplated by Bivens.
In Bivens, we analyzed the Second Circuit's use of the terms
"new and independent" in Bankers Trust. We held that the
mismanagement and wrongful diversion of corporate assets between
1975 and 1981, and the wrongful sale of the partnership's major
asset, the Bivens Gardens Hotel, in 1981, were "new and
independent" injuries because they were not injuries that naturally
flowed from the wrongful takeover of the corporation, Bivens
Center, Inc., in 1975. See Bivens, 906 F.2d at 1551. The "new and
independent" injuries involved independent breaches of duties owed
by the defendants as corporate directors and officers. Id.
Likewise, other Circuits have used the "new and independent"
language when analyzing their separate accrual rules. These
Circuits help shed light on how this term is interpreted. The
Ninth Circuit has provided three rulings for guidance. In In re
Multidistrict Vehicle Air Pollution, 591 F.2d 68 (9th Cir.), cert.
denied, 444 U.S. 900, 100 S. Ct. 210, 62 L. Ed. 2d 136 (1979), the
plaintiff accused car manufacturers of violating the Clayton Act
because they all agreed not to purchase the plaintiff's engine
emission control devices. By 1964, all manufacturers had refused
to buy the plaintiff's device. The plaintiff claimed it suffered
a new injury because another company refused to use its device in
1965. The court held that the plaintiff had been injured in 1964
when the car manufacturers' "irrevocable, immutable, permanent, and
final" decision was made. Id. at 72. A subsequent refusal did not
create a new injury. Id.
In Pace Industries, Inc. v. Three Phoenix Co., 813 F.2d 234
(9th Cir.1987), the court held that "two elements characterize an
overt act which will restart the statute of limitations: 1) It
must be a new and independent act that is not merely a
reaffirmation of a previous act; and 2) It must inflict new and
accumulating injury on the plaintiff." Id. at 238 (emphasis
added).
In Grimmett v. Brown, 75 F.3d 506 (9th Cir.1996), the former
wife and trustee of her ex-husband's bankruptcy estate, Joanne
Siragusa, brought suit under RICO to recover from an attorney,
Patricia Brown. Brown allegedly masterminded a fraudulent scheme
to conceal the ex-husband's interest in his medical practice for
purposes of defeating the former wife's community property interest
in the practice. The court found that Siragusa's primary injury
was the loss of her interest in her ex-husband's medical practice.
Such injury was perfected upon the filing of the bankruptcy
petition by her ex-husband. See id. at 513-14. Siragusa alleged
four post-filing injuries that she argued were new: (1) mail fraud
by submitting false documents to the Bankruptcy Court; (2)
obstruction of justice by concealing documents and testifying
falsely in the proceeding; (3) defrauding a doctor of the
practice; and (4) defrauding the practice's junior owners by not
disclosing the practice's full liability to Siragusa. Id. at 514.
The court found none of these injuries to be new and independent.
See id. The injuries were all part of the same bankruptcy scheme
and all lead to the loss of Siragusa's interest in the practice;
neither the acts nor the injuries were new. See id.
In Bingham v. Zolt, 66 F.3d 553, 560 (2d Cir.1995), cert.
denied, --- U.S. ----, 116 S. Ct. 1418, 134 L. Ed. 2d 543 (1996), the
court held that additional financial losses that resulted from a
company's decision to use defective equipment were not independent
of the original actionable injury of receiving defective generators
in derogation of its contract and warranty rights. A mere
recharacterization or continuation of damages into a later period
will not serve to extend the statute of limitations for a RICO
action. Glessner v. Kenny, 952 F.2d 702, 708 (3d Cir.1991).
Likewise, the Eighth and the Tenth Circuits use the "new and
independent" language in their analysis of the separate accrual
rule. See Association of Commonwealth Claimants v. Moylan, 71 F.3d
1398 (8th Cir.1995); Bath v. Bushkin, 913 F.2d 817 (10th
Cir.1990).
In the case sub judice, the district court ruled that the
injuries suffered by the plaintiffs were not new and independent
injuries, but rather, a single, continuous course of
injury—specifically, ongoing emotional and physical distress
designed to force the plaintiffs to either leave their employment
or to lower job performance. We agree. The injury suffered by the
plaintiffs has been a continuation of the initial injury that
resulted from the harassment. With each act of harassment the
adverse impact on the plaintiffs' job performance may accumulate,
however, the injury is not new and independent. The injury
allegedly suffered by the plaintiffs after July of 1988 was not
unfamiliar, strange, or different. It was the same injury that has
been accumulating since 1986. Stated another way, the injuries
allegedly suffered after suit was filed in 1992 are merely
recharacterizations and continuations of the same injuries
previously alleged to have been suffered since 1986. See Glessner,
952 F.2d at 708.
3. Last Predicate Act Rule
Plaintiffs also contend that the statute of limitations has
not run because under the "last predicate act" rule as applied in
Keystone, they are entitled to recover for damages incurred after
1992, as long as the last predicate act committed by the defendants
occurred within four years of the time the plaintiffs filed suit.
In Bivens, we expressly rejected the application of the last
predicate act rule under these circumstances. As we explained in
Bivens, in Keystone, the plaintiff relied in part on predicate acts
that caused harm to others in order to establish the pattern of
racketeering activity. In Bivens, and in the present case, the
plaintiffs allege acts that caused harm to them. We find it
appropriate to analyze when the plaintiffs knew or should have
known that their injuries were the result of a pattern of
racketeering when determining the date their civil RICO cause of
action accrued. See Bivens, 906 F.2d at 1554. Thus, the last
predicate act rule provides the plaintiffs no relief from the
statute of limitations in this case.
B. Railway Labor Act Preemption
The district court held that all of the plaintiffs' state-law
claims were preempted by the Railway Labor Act ("RLA"), 45 U.S.C.
§ 151 et seq., because resolution of the claims necessarily relied
upon interpretation of the collective bargaining agreements
("CBAs") between United and ALPA. We agree.
Most of the provisions of the RLA apply to labor relations in
the airline industry. Pyles v. United Air Lines, Inc., 79 F.3d
1046, 1049 (11th Cir.1996). The RLA has established a framework
for the resolution of disputes between air carriers and their
employees that "grow[ ] out of grievances, or out of the
interpretation or application of agreements concerning rates of
pay, rules, or working conditions." Id., citing 45 U.S.C. § 184.
The distinguishing feature of such a dispute, termed a "minor
dispute," is that "the dispute may be conclusively resolved by
interpreting the existing [collective bargaining] agreement." Id.
(citations omitted). Congress intended that these "minor disputes"
be resolved through the grievance procedures of the RLA rather than
in federal court. Id. at 1050. "Therefore, it has long been the
rule that when the resolution of a state-law claim ... requires an
interpretation of the CBA, the claim is preempted and must be
submitted to arbitration before a system board of adjustment." Id.
The Supreme Court has adopted the preemption standard applied
in cases under the Labor Management Relations Act ("LMRA").
Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 263, 114 S. Ct.
2239, 2249, 129 L. Ed. 2d 203 (1994); see Lingle v. Norge Div. of
Magic Chef, Inc., 486 U.S. 399, 108 S. Ct. 1877, 100 L. Ed. 2d 410
(1988). The LMRA standard narrows the otherwise broad preemptive
scope of the RLA by precluding preemption of state-law claims that
enforce rights independent of the CBA. Pyles, 79 F.3d at 1050,
citing Hawaiian Airlines, 512 U.S. at 256-62, 114 S.Ct. at 2246-48.
The fact that reference to a CBA may be required, particularly
where factual issues are involved, is insufficient of itself to
preempt an independent state-law claim; only where interpretation
of a CBA is required will the claim be preempted. Pyles, 79 F.3d
at 1050 (citations omitted).
In Pyles, we found that the breach of contract claim—involving
the breach of a letter of agreement similar to the one entered into
here between United and ALPA—between United and ALPA in that case
was preempted by the RLA. See id. at 1050. We found that the
letter agreement was "by its terms, a modification of the CBA
between United and its employees." Id. Thus, to interpret the
letter was to interpret a portion of the CBA. See id. Because the
CBA was "the only potential source of any rights [the plaintiff]
may have to employment with United, one must interpret the CBA to
determine what those rights are." Id.
Likewise, in Lingle v. Norge Div. of Magic Chef, 486 U.S. 399,
407, 108 S. Ct. 1877, 1881, 100 L. Ed. 2d 410 (1988), the Court stated
"if the resolution of a state-law claim depends upon the meaning of
a collective bargaining agreement, the application of state law
(which might lead to inconsistent results since there could be as
many state-law principles as there are States) is pre-empted and
federal labor-law principles—necessarily uniform throughout the
Nation—must be employed to resolve the dispute." In Farmer v.
United Brotherhood of C. & J. of America, Local 25, 430 U.S. 290,
300, 97 S. Ct. 1056, 1063, 51 L. Ed. 2d 338 (1977), the Court
established a balancing test, requiring the courts to make "a
balanced inquiry into such factors as the nature of the federal and
state interests in regulation and the potential for interference
with federal regulation." In Farmer, the Court held that federal
labor law did not preempt a union member's suit against the union
for intentional infliction of emotional distress. Such a claim,
however, is not present in the case sub judice.
1. Claims Against United
Plaintiffs' claims against United are for breach of contract
and fraudulent misrepresentation. Plaintiffs allege that by way of
the letters of employment sent to them from United, United promised
to protect the plaintiffs from the harassment they received after
the strike in 1985. Additionally, plaintiffs attach to their
original complaint the "Back-to-Work" agreement and "Letter of
Agreement" between United and ALPA as evidence of United's promise
to protect its employees.
In plaintiffs' original complaint at paragraph 50, they allege
that the ALPA owes the plaintiffs, who are all part of the
bargaining unit at United, a duty of fair representation. 4 Thus,
the plaintiffs, in effect, allege that they are, or were, members
of ALPA. Further evidence of the plaintiffs' union membership
includes the fact that the plaintiffs are all United pilots and
that ALPA is the bargaining unit for all pilots employed by United.
Resolution of whether United breached a promise made to plaintiffs
and the ALPA to protect the plaintiffs from harassment necessarily
depends on the interpretation of the CBAs for the following
reasons.
United's duty to confront the post-strike harassment on the
plaintiffs' behalf comes from the language of both the
4
In the plaintiffs' original complaint, they stated a claim
for violation of a duty of fair representation under the RLA.
Subsequently, plaintiffs dropped this claim in their amended
complaint filed on March 23, 1994.
"Back-to-Work" agreement and "Letter of Agreement" which are both
part of the CBA. The "Back-to-Work" agreement was collectively
bargained between ALPA and United. The agreement also states that
it is subject to the 1985 collective bargaining agreement already
in place at the time the "Back-to-Work" agreement was completed.
The "Letter of Agreement" was also collectively bargained and in
its first paragraph makes reference to the fact that it is entered
into in accordance with the provisions of the RLA. See Pyles, 79
F.3d at 1050 (where the identical language contained in a letter of
agreement was one of the factors used by the court in determining
that a claim for breach of contract was preempted by the RLA).
Thus, these agreements are part of the CBA, and any claims against
United for breaches of the duties or representations contained
therein necessarily require interpretation of the CBAs and are,
therefore, preempted by the RLA.
Moreover, the ability of United to confront and discipline the
harassment by ALPA members, or install preventative measures
against the harassment, depends on the authority granted to United
through the CBAs. United's ability to affect the employment
situation of ALPA members is governed exclusively through the CBAs.
Thus, any alleged breach of contract or fraudulent
misrepresentation claim made against United is preempted by the RLA
on the basis that resolution of such claims requires the
interpretation of the CBA of 1985, the "Back-to-Work" agreement and
the "Letter of Agreement" entered into by United and ALPA on behalf
of United employees.
2. Claims Against ALPA
Plaintiffs' claims against ALPA include tortious interference
with a contract and tortious interference with a business
relationship. To prevail on a claim of tortious interference with
a business relationship under Florida law, a plaintiff must
establish four elements: (1) the existence of a business
relationship, not necessarily evidenced by an enforceable contract;
(2) knowledge of the relationship on the part of the defendant;
(3) an intentional and unjustified interference with the
relationship by the defendant; and (4) damage to the plaintiff as
a result of the breach of the relationship. T. Harris Young &
Assoc. v. Marquette Electronics, 931 F.2d 816, 825-26 (11th Cir.),
cert. denied, 502 U.S. 1013, 112 S. Ct. 658, 116 L. Ed. 2d 749 (1991).
Tortious interference with a contract and tortious interference
with a business relationship are basically the same cause of
action. Smith v. Ocean State Bank, 335 So. 2d 641, 642 (Fla. 1st
Dist.Ct.App.1976). The only material difference appears to be that
in one there is a contract and in the other there is only a
business relationship. Id.
The plaintiffs contend that ALPA's actions in collectively
bargaining with United and United's interest in appeasing the union
caused United to forsake the plaintiffs by violating the agreement
alleged to have been entered into between the plaintiffs and
United. The court also reads the amended complaint to include an
allegation by the plaintiffs that the harassment caused
interference with the relationship formed between the plaintiffs
and United.
In its CBAs with United, ALPA agreed not to engage in, and in
fact to deter, the harassment that allegedly caused the breach of
United's contract with plaintiffs and injured United's relationship
with plaintiffs. The allegations made against ALPA are also very
tightly intertwined with the alleged duty that United had to
protect the plaintiffs. Indeed, assessment of ALPA's actions and
the duty of United to protect against these actions can only be
done by interpreting the CBAs. It may be found that some of the
conduct engaged in by the ALPA is allowed under the CBAs. This
will not be known, however, until the arbitration steps provided in
the CBAs are undertaken.
Application of the Farmer factors also impels RLA preemption.
First, we assess the federal interests involved in this case. The
present suit involves three parties, all of whom are governed in
their employment relationships by the aforementioned CBAs.
Additionally, this is a suit by union members against their union
and their employer. Thus, the federal concerns regarding the
stability of labor relations and the uniformity of handling labor
disputes are strong. On the other hand, the state does have an
interest in protecting its citizens against conduct that is found
to be "outrageous." The Court in Farmer found that the claim of
intentional infliction of emotional distress—encompassing a certain
type of outrageous conduct—avoided federal preemption. The claim
pursued in Farmer, however, is not the nature of the claims pursued
in this case. Lastly, we must consider to what extent avoiding
preemption will interfere with the federal regulatory scheme
designed to control labor relations. The determinative fact is
that the CBAs control the relationships and employment activities
of this employment triangle. All parties—either by their
membership in the ALPA, their status as employees of United or as
the employer—are controlled by the CBAs regarding the issues of
labor relations. Entertaining state-law remedies in federal court
under these circumstances would be to by-pass the CBAs agreed to by
all parties to this litigation.
Persuasive on this issue, and supportive of this court's
ruling, is Fry v. Airline Pilots Assoc., International, 88 F.3d 831
(10th Cir.1996). The suit brought by Fry and other plaintiffs,
also fleet qualified pilots, was similar, if not identical in many
ways, to the case before this court. In Fry, the plaintiffs'
state-law claims against United were (1) intentional infliction of
emotional distress; (2) conspiracy to inflict emotional distress;
(3) breach of contract; and (4) false representation (this cause
of action voluntarily dismissed). Id. at 834 n. 3 (emphasis
added). The claim against the ALPA was tortious interference with
a contract. Id. (emphasis added). At issue in Fry was whether the
RLA preempted these state-law claims. The court noted that
"plaintiffs often [attempt] to avoid federal jurisdiction under §
301 by framing their complaints in terms of such diverse state law
theories as wrongful discharge, intentional infliction of emotional
distress, conspiracy, and misrepresentation." Id. at 836
(citations omitted). The court held that "[a]fter careful review
of the record, we conclude that the district court properly
determined that plaintiffs' state law claims, based on the theory
that United reneged on its responsibility to protect the
plaintiffs, cannot be understood without reference to the various
CBAs." Id. at 836. The court further stated "[i]n this case ...
the alleged outrageous conduct is inextricably bound up with
agreements and promises made to protect, and then actions allegedly
forsaking, the plaintiffs." Id. With respect to the claim for
tortious interference with a contract against ALPA, the court
determined "[w]hether ALPA caused United to breach its contract to
protect the plaintiffs cannot be determined without examining and
comparing the promised protections afforded by United and the
alleged withdrawal of those protections as decided in subsequent
negotiating sessions." Id. at 838-39. The court did not, however,
find the plaintiffs' emotional distress claims preempted. See id.
at 841.
The decision by the Tenth Circuit is not binding authority for
this court. It is, however, persuasive authority that provides
valuable insight. The background and basic facts of Fry are the
same as in this case. Fry covers the same strike by ALPA against
United, the same CBAs, the same post-strike harassment, and the
same post-strike actions taken by United and ALPA. The two
material differences between Fry and this case are that the
plaintiffs in Fry were different pilots than in this case and some
of the claims alleged in the Fry complaint were different than
those alleged here. However, all of the state-law causes of action
alleged in the case sub judice are covered in Fry. Indeed, the
Tenth Circuit's ruling on RLA preemption under virtually the same
set of facts as the present case is very instructive.
The plaintiffs argue that their claims should fall under the
Farmer exception to the preemption doctrine. Farmer held that an
otherwise preempted claim could be prosecuted in state or federal
court if the conduct alleged was sufficiently outrageous. In
Farmer, the cause of action alleged was intentional infliction of
emotional distress. No such claim is alleged in the present case.
All of plaintiffs' claims in this case sound in contract or
quasi-contract. Merely because the plaintiffs allege outrageous
conduct as the means by which their contracts were breached does
not bring this case under the Farmer exception. Additionally, as
discussed above, application of the Farmer balancing test calls for
RLA preemption in this case.
Lastly, plaintiffs contend that Belknap, Inc. v. Hale, 463
U.S. 491, 103 S. Ct. 3172, 77 L. Ed. 2d 798 (1983), applies in this
case to avoid federal preemption. In Belknap, the Court held that
non-union employees' breach of contract claims should not be
preempted. Id. at 500, 103 S.Ct. at 3178. The Court reached this
holding because it determined that innocent third parties, that is,
employees of the employer but not members of the union and not
implicated in any CBAs, should not be deprived of their normal
state-law remedies. See id. "It is one thing to hold that the
federal law intended to leave the employer and the union free to
use their economic weapons against one another, but it is quite
another to hold that either the employer or the union is free to
injure innocent third parties without regard to the normal rules of
law governing those relationships." Id. Thus, Belknap is
applicable in a situation where a non-union employee does not have
at his disposal the protections of the union and the CBAs, but
rather has only his normal state-law remedies against the union or
his employer.
As mentioned above, the plaintiffs are or were ALPA members,
as alleged in paragraph 50 of the original complaint. They are
pilots for United, and ALPA is the sole bargaining unit for the
United pilots. Additionally, we agree with the district court in
its ruling that once the striking workers returned to work under
the newly negotiated CBA, the rights and duties of all parties
involved, including the plaintiffs as United employees, were
governed by the newly formed CBAs. Therefore, Belknap is
inapposite. Likewise, the Tenth Circuit in Fry reached the same
holding regarding the applicability of Belknap. See Fry, 88 F.3d
at 838 & n. 9.
IV. CONCLUSION
The plaintiffs' civil RICO action was properly dismissed by
the district court because the statute of limitations had run. The
district court properly found that all of the plaintiffs' state-law
claims were preempted by the RLA because all of these claims
necessarily require interpretation of the CBAs between United and
ALPA. Therefore, we affirm the district court's granting of
summary judgment in favor of United and ALPA.
AFFIRMED.