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


10-26-2004

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Precedential or Non-Precedential: Precedential

Docket No. 03-3176




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


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                    PRECEDENTIAL           Jerald R. Cureton, Esq. (Argued)
                                           H. Thomas Hunt, III, Esq.
   UNITED STATES COURT OF                  Anthony Valenti, Esq.
APPEALS FOR THE THIRD CIRCUIT              Tara Ann Mosier, Esq.
                                           Cureton Caplan
                                           950B Chester Avenue
                                           Delran, NJ 08075
             No. 03-3176
                                                         Counsel for Appellant

                                           Steven K. Hoffman, Esq. (Argued)
  LEROY BENSEL, individually and           Edgar N. James, Esq.
 as representative of a class consisting   James & Hoffman
 of former Trans World Airlines, Inc.,     1101 17th Street, N.W.
pilots employed by TWA Airlines LLC        Suite 510
           as of April 2001,               Washington, DC 20036
                            Appellant
                                           James Katz, Esq.
                   v.                      Jennings Sigmond
                                           1040 North Kings Highway
 ALLIED PILOTS ASSOCIATION;                Suite 300
      TWA AIRLINES, LLC;                   Cherry Hill, NJ 08034
 AIR LINE PILOTS ASSOCIATION;
   AMERICAN AIRLINES, INC.                               Counsel for Appellee Allied
                                                         Pilots Association

  On Appeal From the United States         Donald L. Havermann, Esq. (Argued)
     District Court for the District       Harry Rissetto, Esq.
             of New Jersey                 Morgan, Lewis & Bockius
    (D.C. Civil No. 02-cv-02917)           1111 Pennsylvania Avenue, N.W.
 District Judge: Hon. Joseph E. Irenas     Washington, DC 20004

                                           Alfred J. Lechner, Jr., Esq.
        Argued July 12, 2004               Joseph A. Piesco, Jr., Esq.
                                           Morgan, Lewis & Bockius
 BEFORE: RENDELL, FISHER and               502 Carnegie Center
 VAN ANTWERPEN, Circuit Judges             Princeton, NJ 08540

       (Filed October 26, 2004)                          Counsel for Appellees
                                                         TWA Airlines, LLC and
                                                         American Airlines, Inc.
Daniel M. Katz, Esq. (Argued)                     I of the Second Amended Restated
Katz & Ranzman                                    Complaint.
1015 18th Street, N.W.
                                                                    I. Facts
Suite 801
Washington, DC 20036                                     As the material facts are generally
                                                  not in dispute, the facts presented below
              Counsel for Appellee Air            are taken in large part verbatim from the
              Line Pilots Association             District Court’s opinion in this case.
                                                  Additional facts are incorporated from the
                                                  parties’ submissions and appendices.
                                                       The Asset Purchase Agreement
     OPINION OF THE COURT
__________                                                After several years of failing to
VAN ANTWERPEN, Circuit Judge                      make a profit, on January 9, 2001, TWA
                                                  entered into an agreement with Defendant-
       In this appeal of summary                  Appellee American whereby American
judgment, Appellants challenge the order          agreed to purchase the majority of TW A's
of the District Court which granted               assets following TWA's filing for Chapter
summary judgment as to all Defendants-            11 bankruptcy protection. TWA made
Appellees and dismissed all counts of             such a filing the following day, January
Appellants’ Second Amended Restated               10, 2001. As a condition of the purchase
Complaint.       Plaintiffs-Appellants (the       agreement, American agreed to hire almost
“Class”) are a group of airline pilots            all of TWA's unionized employees
formerly employed by Trans World                  provided that certain labor protective
Airlines, Inc. (“TWA”). The gravamen of           provisions in their various contracts were
the Class’ complaints, which arise under          eliminated.
the Railway Labor Act (“RLA”), 45
                                                          One of those provisions concerned
U.S.C. §§ 151 et seq., concern the
                                                  the right of TWA's pilots to bring to
imposition of a seniority integration
                                                  arbitration issues of seniority integration in
agreement resulting from American
                                                  the event of a purchase of TWA or merger
Airlines, Inc.’s (“American”) purchase of
                                                  of TWA with another airline. American
TWA’s assets and the hiring of the Class
                                                  indicated that it would not proceed with its
by American’s subsidiary, TWA Airlines,
                                                  purchase of TWA unless this labor
LLC (“TWA-LLC”). For the reasons
                                                  protective provision, known as Allegheny-
explicated below, we reverse-in-part and
                                                  Mohawk rights, was eliminated. TWA’s
affirm-in-part the Order of the District
                                                  pilots were represented by Defendant-
Court, and remand to provide the Class
                                                  Appellee ALPA through its TWA Master
and the Air Line Pilots Association
(“ALPA”) an opportunity to conduct
discovery on the claims asserted in Count

                                              2
Executive Council (“TWA M EC”) unit.1              order withdrawing the section 1113 motion
Under American’s collective bargaining             and formalizing the waiver agreement.2
agreement with its pilots, represented by
D e f e n d a n t-A ppellee All i e d Pilots
                                                             The ALPA / TWA-LLC
Association (“APA”), the seniority of any
                                                             Transition Agreement
new pilots who began working for
American, as a result of an acquisition by                 On April 9, 2001, ALPA and the
American, would begin to accrue only at            TWA MEC entered into a transition
the moment that the pilots began working           agreement with TWA-LLC.               Upon
for American.                                      completion of the asset purchase by
                                                   American, TWA-LLC would become a
           The Waiver Agreement
                                                   wholly owned subsidiary of American.
        The TWA MEC resisted waiving its           Under that transition agreement, the
seniority protection provisions, and on            majority of the provisions of the collective
March 15, 2001, TWA filed a motion                 bargaining agreement between ALPA and
under 11 U.S.C. § 1113 with the                    TWA would remain in effect until such
Bankruptcy Court seeking to abrogate the           time as the National Mediation Board
provisions in its collective bargaining            (“NMB”) adjudicated TWA-LLC and
agreement with ALPA. In response, on               American as a “single carrier” and
April 2, 2001, the TWA MEC passed a                extended APA’s certification to cover the
resolution waiving its seniority protection        TWA-LLC pilots (comprising the Class).
provisions in exchange for a letter from           The transition agreement incorporated by
American in which American promised to             reference American’s promise to use its
“use its reasonable best efforts” with APA         reasonable best efforts to ensure a fair
to “secure a fair and equitable process for        seniority integration process. In addition,
the integration of seniority” and to adopt         ALPA would continue to remain the
the procedures that result from facilitated        exclusive representative of the TWA-LLC
meetings between APA and ALPA.                     pilots until the NMB made the appropriate
Significantly, any seniority integration           declarations. The next day, on April 10,
agreement reached between APA and                  2001, American’s purchase of TWA’s
ALPA was to be presented to American as
a proposed modification of the collective
bargaining agreement between American                 2
                                                        There is a great deal of uncertainty as
and APA.        On April 6, 2001, the
                                                   to what the result might have been if
Bankruptcy Court entered a stipulation and
                                                   American had gone through with its
                                                   purchase of the TWA assets without
                                                   ALPA waiving its seniority integration
       1
        Some members of the class of               protections. Of course, it was precisely
Plaintiffs in this case were also members          this uncertainty that most likely influenced
of the TWA MEC.                                    American to request the waiver by ALPA.

                                               3
assets was finalized and TWA-LLC began               objection to APA certification submitted
operations as a separate air carrier. At that        by TWA MEC, the NMB certified APA as
point, almost all TWA pilots became                  the sole bargaining agent for all American
employees of TWA-LLC.                                pilots. As a result, the April 9, 2001
                                                     TWA-LLC/ALPA transition agreement
      Seniority Integration Process
                                                     expired (by its own terms), ALPA’s
        Between at least February and                certification as the collective bargaining
August of 2001, the TWA MEC and APA                  agent for the TWA-LLC pilots terminated,
negotiated with each other over seniority            and Supplement CC became effective.
integration under the auspices of a
                                                             Arbitration Proceedings
facilitator provided by American. No
agreement was reached between the                           Following execution of Supplement
parties. On November 8, 2001, APA and                CC, ALPA pursued a grievance against
American reached an independent                      American and arbitrated before a System
agreement on seniority integration of the            Board of Adjustment, alleging that
former TWA pilots, known as Supplement               American violated the promise it made to
CC. Under Supplement CC, some TWA                    ALPA in the letter it wrote concurrently
pilots did receive credit for their seniority,       with the April 2, 2001 waiver agreement.
and certain captains and first officer               The grievance alleged that American did
positions were guaranteed for former                 not use its “reasonable best efforts” to
TWA pilots at the remaining pilot base for           protect the TWA-LLC pilots’ seniority
TWA-LLC pilots, in St. Louis, Missouri.              protections, as it had agreed to do in its
Supplement CC was not to become                      letter. Through the arbitration, ALPA
effective until the NMB declared                     sought the nullification of Supplement CC.
American and TWA-LLC to be a single                  The arbitrator, in a decision dated April
carrier and extended the APA’s                       18, 2002, rejected the grievance and found
certification. TWA MEC refused to sign               for American.
Supplement CC.
                                                           Summary of Relevant Dates
            NMB Proceedings
                                                           For purposes of clarity, the dates
       On November 9, 2001, APA filed a              mentioned in the foregoing discussion may
petition with the NMB seeking the                    be summarized as follows:
declaration of “single carrier” status.
                                                     January 9, 2001:     T W A e n t e rs i n to
ALPA opposed this petition, but on March
                                                                          A sset Purchase
5, 2002, the NMB declared that TWA-
                                                                          Agreement with
LLC and American were a “single carrier”
                                                                          American.
for RLA purposes. On April 3, 2002, after
ALPA declined to submit an application to
become the bargaining representative for
the combined pilot group, and despite the

                                                 4
April 2, 2001:     TWA MEC passes a                                       effective; transition
                   resolution waiving                                     agreement between
                   its         seniority                                  TWA-LLC and
                   protection provisions                                  ALPA expires.
                   in exchange for
                                                     April 18, 2002:      A r b i t r a t o r re j e c ts
                   A m e r i c a n ’ s
                                                                          ALPA’s allegation
                   “ r e a s o n a b le b e st
                                                                          that American did
                   efforts” promise.
                                                                          not          use          its
April 9, 2001:     ALPA and TWA                                           “ r easo nable b e s t
                   M EC enter into                                        efforts” to protect the
                   transition agreement                                   TWA-LLC pilots’
                   with TWA-LLC.                                          seniority integration,
                                                                          as promised in its
April 10, 2001:    American’s purchase
                                                                          letter.
                   of TWA ’s assets
                   finalized; TWA-LLC                September 3, 2002: Class action initiated
                   begins operations as                                 by former TWA
                   a separate air carrier.                              pilots.
November 8, 2001: Am erican and APA                  January 27, 2003:    Clas s file s S e co nd
                  execute Supplement                                      Amended Restated
                  CC, an agreement                                        Complaint.
                  governing the
                                                                Procedural Posture
                  seniority integration
                  of the former TWA                          On September 3, 2002, this class
                  pilots. Supplement                 action was initiated by filing a complaint
                  CC is subject to two               notwithstanding a prior action by APA.
                  c o n d i t i o n s                Pursuant to a series of consent orders
                  subsequent.                        agreed to by all parties, the parties were
                                                     realigned in their present form. The Class
March 5, 2002:     N M B declares that
                                                     filed a Second Amended Restated
                   American and TWA-
                                                     Complaint against the four Defendants on
                   LLC are a “single
                                                     January 27, 2003. The District Court’s
                   carrier” for RLA
                                                     order dismissing the original action
                   purposes.
                                                     preserved the original filing dates for
April 3, 2002:     NM B certifies APA                statute of limitations purposes.
                   as    the     sole
                                                                  II. Jurisdiction
                   bargaining agent for
                   all pilots, making                      Appellate jurisdiction is proper
                   Sup plement CC                    pursuant to 28 U.S.C. § 1291. The District


                                                 5
Court had subject matter jurisdiction under        entitled to judgment as a matter of law.”
28 U.S.C. §§ 1331, 1367.                           Fed. R. Civ. P. 56(c). “In reviewing the
                                                   grant of summary judgment, we must
         III. Standard of Review
                                                   affirm if the record evidence submitted by
       All four Defendants filed motions           the non-movant ‘is merely colorable or is
to dismiss on all claims asserted against          not significantly probative.’” See Port
them. The District Court elected to treat          Auth. of New York & New Jersey v.
these motions as summary judgment                  Affiliated FM Ins. Co., 311 F.3d 226, 232
motions.3                                          (3d Cir. 2002).
       This Court has plenary review of                    Under this standard of review, if
the District Court’s decision to grant             there is a material issue of fact about when
summary judgment. See Blair v. Scott               the statute of limitations period began to
Specialty Gases, 283 F.3d 595, 602-03 (3d          accrue, then the District Court’s granting
Cir. 2002). We apply the same standard as          of summary judgment was improper.
used by the District Court. Id. A grant of
                                                                    IV. Analysis
summary judgment is appropriate “if the
pleadings, depositions, answers to                                      Count I
interrogatories, and admissions on file,
                                                             Count I of the Second Amended
together with the affidavits, if any, show
                                                   Restated Complaint asserts against ALPA
that there is no genuine issue as to any
                                                   a series of breaches of its duty of fair
material fact and that the moving party is
                                                   representation under the RLA.                 The
                                                   District Court found these claims to be
    3                                              time-barred, or alternatively, that they
     Notwithstanding the District Court’s
                                                   failed to state claims upon which relief
characterization of Defendants’ motions as
                                                   could be granted. As explained below,
motions for summary judgment, the
                                                   however, it follows from application of the
District Cou rt dism issed du ty of
                                                   rays of hope doctrine that Appellants’
representation claims asserted against
                                                   claims did not accrue until April 18, 2002,
ALPA for failure to state a claim. To the
                                                   the date the arbitrator of the System Board
extent we treat ALPA’s motion as a
                                                   of Ad justment de nied A ppella nts’
motion to dismiss, our review is plenary.
                                                   challenge to American’s execution of its
Felice v. Sever, 985 F.2d 1221, 1226 (3d
                                                   “best efforts” promise, or at the earliest,
Cir.), cert. denied, 509 U.S. 923, 113 S.Ct.
                                                   April 3, 2002, the date Supplement CC
3038 (1993). Plaintiffs-Appellants have
                                                   became effective. Because the Class filed
noted in their brief that the District Court
                                                   its breach claims against ALPA within six
failed to address their Rule 56(b) affidavit
                                                   months of both of these accrual dates, the
and failed to grant a Rule 56(f)
                                                   claims were timely filed, and, if proven,
continuance. That issue, however, is not
                                                   s t a t e c l a im s w a r r a n ti n g r e l ie f .
properly before us as Appellants did not
                                                   Accordingly, we reverse the District Court
base their appeal on that ruling.

                                               6
and remand to permit the parties to                 discovered the acts constituting the breach
proceed with discovery and provide the              at any time before rays of hope were
Class an opportunity to further explore its         extinguished. See Childs, 831 F.2d at 436;
breach claims.                                      Miklavic, 21 F.3d at 556.
           A. Accrual of Claim                              Two significant policies underlie
                                                    the view that, despite the employee’s
        It is undisputed that the statute of
                                                    awareness of the union’s breach or the
limitations for a duty of fair representation
                                                    futility of further union action, the statute
claim against a union under the RLA is six
                                                    of limitations does not accrue while the
months. Sisco v. Consolidated Rail Corp.,
                                                    union continues to represent the employee
732 F.2d 1188, 1193-94 (3d Cir. 1984).
                                                    and proffers rays of hope regarding the
        As a general matter, a duty of fair         latter’s claim. First,
representation claim accrues and the six
                                                           it is inefficient and unwise
month limitations period commences when
                                                           to compel an employee to
“the futility of further union appeals
                                                           sue his union in federal
becomes apparent or should have become
                                                           court while the union
apparent.” Scott v. Local 863, Int’l
                                                           continues, in good faith, to
Brotherhood of Teamsters, Chauffeurs,
                                                           pursue the employee’s
Warehousemen and Helpers of America,
                                                           claims and attempts to
725 F.2d 226, 229 (3d Cir. 1984). If,
                                                           remedy any past breach of
however, a union purports to continue to
                                                           its DFR. If the union can
represent an employee in pursuing relief,
                                                           indeed remedy the cause of
the employee’s duty of fair representation
                                                           t h e     e m p loye e ’s
claim against the union will not accrue so
                                                           dissatisfaction, it should be
long as the union proffers “rays of hope”
                                                           allowed to do so, thus
that the union can “remedy the cause of the
                                                           obviating the federal judicial
employee’s dissatisfaction.” Childs v.
                                                           involvem ent.Childs, 831
Penn. Fed’n Brotherhood of Maintenance
                                                           F.2d at 434. This policy is
Way Employees, 831 F.2d 429, 434 (3d
                                                           especially befitting in the
Cir. 1987); see also Whittle v. Local 641,
                                                           context of labor disputes,
I n t’l B r otherhood of T eamste rs ,
                                                           w here Congress has
Chauffeurs, Warehousemen and Helpers of
                                                           evidenced its desire to
America, 56 F.3d 487, 490 (3d Cir. 1995);
                                                           resolve disputes through
Miklavic v. USAir, Inc., 21 F.3d 551 (3d
                                                           arbitration. Id. Second,
Cir. 1994); Vadino v. A. Valey Eng’rs,
                                                           requiring an employee to
903 F.2d 253, 261 n.11 (3d Cir. 1990). In
                                                           sue the union within six
this context, it is irrelevant if the
                                                           months of discovering the
employees were aware of or with
                                                           union’s breach puts the
reaso nable diligence should have


                                                7
       employee in an untenable                     certification pending an investigation into
       position because “if he waits                possible interference by American.
       to sue the union he may lose                 Success in any of these endeavors would
       the right to do so, but if he                have prevented imposition of Supplement
       sues the union immediately                   CC, as the single carrier determination and
       he may antagonize the best                   e x t e n s io n o f c e r t if i c a ti o n w e r e
       possible champion of his                     prerequisites to its enforcement. Third,
       cause.” Id. at 435.                          had ALPA attempted to require American
                                                    and TWA-LLC to negotiate with it the
              B. Application
                                                    terms of the Class’ seniority integration, or
        Before applying the rays of hope            attempted to challenge certification of
doctrine to the instant scenario, we note           APA as the certified collective bargaining
that, contrary to the District Court’s and          agent of the former TWA pilots as
ALPA’s position, Supplement CC was not              requested by the TWA MEC, or attempted
the inevitable outcome of the April 2001            to seek representational rights of the
waiver of Appellants’ Allegheny-Mohawk              combined pilots before the NMB, or
provisions.      In other words, despite            challenged Supplement CC directly,
waiving an important labor protective               actions that ALPA failed to take in
provision, rays of hope remained that, with         p u r p o r te d v i o l a t io n o f i t s f a ir
appropriate continued representation by             representation duty to the Class, a more
ALPA, a more propitious seniority                   favorable integration agreement could
agreement than Supplement CC could                  arguably have been implemented. Finally,
have been obtained for the Class. First,            because waiver of the contractual
although concession of its Allegheny-               Allegheny-Mohawk provisions did not
Mohawk rights left the Class in an                  constitute a clear and unmistakable waiver
admittedly weak bargaining position, the            of statutory bargaining rights under the
Class received in exchange for its waiver           RLA, compare Gullickson v. Southwest
American’s promise to use its “reasonable           Airlines Pilots’ Ass’n, 87 F.3d 1176 (10th
best efforts” to ensure “a fair and equitable       Cir. 1996), Supplement CC was not the
process for the integration of seniority.”          foregone conclusion of the Class’ waiver.
ALPA brought to arbitration the issue of            Rays of hope were not automatically
whether American adhered to its best                extinguished by virtue of the Class’ waiver
efforts promise. A favorable outcome                of the Allegheny-Mohawk provisions.
could have resulted in the invalidation of          Indeed, Supplement CC itself did not
Supplement CC.             Second, ALPA             endtail all of the former TW A pilots.
submitted an opposition to APA’s
                                                                1. NMB Certification
application to the NMB for a declaration
of single carrier status, and ALPA, through                 Appellants argue that the statute of
the TWA MEC, requested that the NMB                 limitations began to run no sooner than
stay extension of APA’s representational            April 3, 2002, when ALPA lost

                                                8
representational rights and when                   and ALPA would have remained in effect
Supplement CC became binding and                   at least until renegotiation with ALPA, and
effective.                                         further bargaining on the issue of seniority
                                                   negotiation would have occurred. Thus,
        This Court has applied the rays of
                                                   rays of hope remained at least until these
hope analysis in the absence of any
                                                   conditions subsequent were satisfied,
arbitration proceeding. Our discussion of
                                                   r e nde r ing e f f e c tive an d bin din g
the doctrine makes obvious that its
                                                   Supplement CC, a nd ALPA lost
supporting principles are not inherently
                                                   representation rights as the Class’
dependent on the presence of an arbitration
                                                   bargaining agent.
proceeding. An arbitration proceeding is
merely illustrative of one way in which a                  Rays of hope had to extend until at
union can proffer rays of hope that it will        least April 3, 2002, when the NMB
obtain the relief the complaining employee         certified APA as the sole bargaining agent
desires in spite of a breach of its duty of        for all American pilots. As suit was filed
fair representation. We have also applied          on September 3, 2002, the action was
the rays of hope doctrine to a union’s             timely. We do not rest solely upon the
attempted renegotiation of the terms of a          April 3, 2002 date because, as discussed
collective bargaining agreement with the           below, we believe that rays of hope
employer on behalf of its members.                 extended until April 18, 2002, when the
Although the alleged breach of the duty of         adverse arbitration decision was rendered.
fair representation occurred during these
                                                         2. The Arbitration Proceeding
negotiations, we found that the employees’
potential cause of action against the union                Where a union represents the
did not accrue until the union was                 employee in an arbitration proceeding and
decertified, for only then “were the rays of       proffers rays of hope concerning the
hope extinguished.” Miklavic, 21 F.3d at           possibility of success in spite of its breach,
556.                                               this Court has held that the employee’s
                                                   cause of action does not accrue until the
          Although Supplement CC was
                                                   arbitration board denies the employee’s
executed on November 8, 2001, it was an
                                                   claim. Childs, 831 F.2d at 436; Whittle,
a g r e e m e n t subje ct to co ndit i o ns
                                                   56 F.3d at 490. Although forcing a
subsequent-namely, that the NM B would
                                                   plaintiff to delay pursuing a meritorious
render a single carrier determination and
                                                   duty of fair representation claim during
designate APA as the certified collective
                                                   fruitless representation by the union until
bargaining agent for all pilots. As stated
                                                   the arbitration or grievance board issues its
earlier, ALPA and TWA MEC formerly
                                                   final decision sacrifices the policy of
opposed these determinations before the
                                                   avoiding futile administrative procedures,
NMB. Had any of these conditions
                                                   this Court has determined that this policy
subsequent failed to transpire, the
                                                   is outweighed by the important federal
transition agreement between TWA-LLC

                                               9
policies of deference to arbitration,                       ALPA’s attempt to distinguish
avoidance of unnecessary lawsuits and               Childs and Whittle on the basis that the
certainty as to when the statute of                 breaches of the duty of fair representation
limitations commences. Childs, 831 F.2d             asserted against the unions in those cases
at 436 n.3.                                         involved the unions’ conduct during the
                                                    grievance proceeding or arbitration
       Pursuant to this approach, the
                                                    proceeding is unpersuasive. Although
Class’ claims against ALPA accrued when
                                                    both cases arise in that posture, the
the adverse arbitration decision was
                                                    reasoning espoused in Childs and Whittle
rendered on April 18, 2002. The instant
                                                    justify its application to situations where
action was filed on September 3, 2002,
                                                    the union breach occurs outside the
within six months of accrual.
                                                    context of the arbitration proceeding itself.
        In the instant case, ALPA pursued           Indeed, the instant suit represents such an
an arbitration against American on behalf           example. While the breaches asserted
of the former TWA pilots in an effort to            against ALPA are unrelated to its conduct
establish that American did not fulfill its         during the arbitration, a favorable arbitral
promise to use reasonable best efforts to           outcome would have remedied those
ensure a fair seniority integration process.        breaches, as described above. As such, the
In instituting the grievance, ALPA sought           polices supporting our reasoning in Childs
to prevent enforcement of Supplement CC.            and Whittle-- that unnecessary federal
Thus, a successful arbitral outcome would           litigation should be avoided, that
have remedied and/or rendered moot                  administrative procedures should be given
ALPA’s supposed breaches.               Had         “full play,” and that an employee should
Supplement CC been invalidated, ALPA                be spared the “Hobson’s choice between
could have pressed American and TWA-                letting the statute of limitations run and
LLC to bargain directly with it concerning          antagonizing his best advocate” Childs,
a seniority integration agreement for the           831 F.2d at 436--are unquestionably
Class. Furthermore, Supplement CC’s                 furthered here. Moreover, it is significant
abrogation would have rendered moot                 that this Court has applied the rays of hope
Appellants’ assertions that ALPA violated           analysis in the absence of any arbitration
its duty of fair representation through its         proceeding in Miklavic. Therefore, we
failure to seek representational rights of          refuse to adopt such a narrow
the combined pilot group before the NMB,            interpretation of this precedent when the
its failure to challenge certification of           policies founding them are undoubtedly
APA as the certified collective bargaining          furthered in circumstances that differ from
agent of the former TWA pilots as                   those decisions’ exact factual postures.
requested of them by the TWA-MEC, and
                                                            It is of no moment that the
its failure to take action to challenge
                                                    arbitration proceeding did not specifically
Supplement CC.
                                                    challenge the April 2001 waiver agreement


                                               10
and was unrelated to any supposed                               Accordingly, we hold that
coercion of TWA MEC by ALPA to                           Appellants’ breach of the duty of fair
forfeit the Allegheny-Mohawk provisions                  representation claims against ALPA did
in violation of its fair representation duty.            not accrue until April 18, 2002.
We recognize that Appellants must have
                                                                 We briefly address and dispose of
realized the general implications of
                                                         ALPA’s position. ALPA posits that the
w a i v i n g t h e A l l eg h e n y -M o h a w k
                                                         six- month statute of limitations on a duty
provisions at the time they agreed to do so.
                                                         of fair representation claim challenging a
It may be true that ALPA’s continued
                                                         collectively bargained agreement begins to
representation of the Class through
                                                         run immediately upon execution of that
arbitration could not have ameliorated the
                                                         agreement. Relying primarily on Local
C lass’ weak b argain ing p ositio n
                                                         Lodge No. 1424 v. National Labor
occasioned by that waiver. Rays of hope
                                                         Relations Board, 326 U.S. 411, 415-417,
nonetheless apply to ALPA’s alleged
                                                         80 S.Ct. 822 (1960), ALPA asserts that
conduct in the context of forcing this
                                                         this rule bars a legal challenge to both the
waiver upon the Class. The Class could
                                                         April 2, 2001 waiver agreement that was
not have appreciated or predicted the full
                                                         subsequently memorialized in the
ramifications of this waiver until at the
                                                         Stipulation and Order of the Bankruptcy
earliest when Supplement CC became
                                                         Court on April 6, 2001, and all the
effective and binding. Again, Supplement
                                                         additional duty of fair representation
CC was not the waiver’s inescapable
                                                         breaches alleged in the Second Amended
result. Moreover, and perhaps more
                                                         Restated Complaint which ALPA contends
significantly, forcing the Class to
                                                         were the inevitable result of the initial
challenge ALPA within six months of the
                                                         waiver, because those claims accrued no
waiver would have placed the Class in the
                                                         later than April 6, 2001. Local Lodge is
untenable position of antagonizing the
                                                         distinguishable in a very important respect.
union that continued to represent them in
                                                         It rejected the premise that a collective
an effort to acquire the most advantageous
                                                         bargaining agreement that contains a union
seniority integration possible.             This
                                                         security clause valid on its face, but which
concern represents a fundamental basis of
                                                         was entered into when the union did not
the rays of hope doctrine. There are good
                                                         have majority status, gives rise to two
reasons for having a statute of limitations,
                                                         independent unfair labor practices, one
and we emphasize that the rays of hope
                                                         being the execution of the agreement, the
doctrine is not open-ended. The fact
                                                         other arising from its continued
pattern may vary from case to case, but
                                                         enforcement. Instead, the Supreme Court
clearly there comes a point when a union
                                                         held that
can no longer be said to proffer rays of
hope to an employee, and the rays of hope                       [w]here . . . [a] collective
are extinguished.                                               bargaining agreement and
                                                                its enforcement are both

                                                    11
perfectly lawful on the face                       a l l eg a t i o n s c o n s t it u t e
of things, and an unfair                           breaches independent of the
labor practice cannot be                           initial waiver agreement,
made out except by reliance                        this argum ent is not
o n t h e fa c t o f t h e                         compelling.
a g r e e m e n t ’ s o r i g in a l
                                                    In any event, ALPA contends that
unlawful execution, an event
                                            any challenge brought r e ga rdin g
which, because of
                                            Supplement CC accrued no later than
limitations, cannot itself be
                                            November 8, 2001, the date of its
made the subject of an
                                            execution. Again, the cases relied upon by
u n f a ir l a b o r p r a c t i c e
                                            ALPA in support of this view are
complaint, . . . permitting
                                            materially distinguishable. In each case,
resort to the principle that §
                                            the union being sued was the union that
10(b) is not a rule of
                                            entered into the challenged agreement. As
evidence, in order to convert
                                            such, the employees pressing duty of fair
what is otherwise legal into
                                            representation claims against the union
something illegal, would
                                            were already bound by the agreement in
vitiate the po licies
                                            issue at the time that agreement was either
underlying that section. 362
                                            entered into or ratified. Those plaintiffs
U.S. at 419 (emphasis
                                            suffered a definitive injury upon the date
added).          This reasoning
                                            of execution or ratification. See United
applies to bar Appellants’
                                            Indep. Flight Officers v. United Air Lines,
claims in the instant suit
                                            Inc., 756 F.2d 1262 (7th Cir. 1985) (initial
only if one accepts the
                                            injury occurred when the union failed to
p r o p o s i ti o n t h a t t h e
                                            reach an agreement with employer and a
limitations period associated
                                            subsequent injury occurred when the
with ALPA’s initial breach
                                            agreement was signed); Gvozdenovic v.
accrued on April 6, 2001,
                                            United Air Lines, Inc., 933 F.2d 1100 (2d
and the subsequent alleged
                                            Cir.) (incoming flight attendants were
breaches             are       all
                                            already employed, members of the union,
“inescapably grounded,”
                                            and thus bound as of the date offending
362 U.S. at 422, in the
                                            agreement was ratified), cert. denied, 502
initial breach.          Because
                                            U.S. 910, 112 S.Ct. 305, 116 L.Ed.2d 248
Supplement CC was not the
                                            (1991). Significantly, Gvozdenovic found
inevitable result of the
                                            that the statute of limitations ran not from
w ai v e r a g r e eme nt, a s
                                            when the agreement was entered into, but
described in connection with
                                            from when it was ratified (and presumably
our “rays of hope” analysis,
                                            effective). 933 F.2d at 1106. In contrast,
and because the subsequent
                                            although Supplement CC was executed on
fair representation

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

                                               13
 Motor Tariff Bureau, Inc.,           f a c i li t a te d d i s c u s si o ns
690 F.2d 1240, 1259 n.29              between ALPA and APA,
(9th Cir.), cert. denied, 459         the arbitration proceeding
U.S. 1227, 103 S.Ct. 1234,            brought by ALPA, and the
75 L.Ed.2d 468 (1982). In             negotiation                      and
essence, application of Rule          implementation                      of
15(c) involves a search for a         Supplement CC. The Class’
common core of operative              breach allegations focus on
facts in the two pleadings.           ALPA’s coercive role in
As such, the court looks to           forcing the Class to waive
whether the opposing party            its labor p rotectiv e
has had fair notice of the            provisions, but further
general fact situation and            charge ALPA with breach
legal theory upon which the           generally. These allegations
amending party proceeds.              are painted with a broad
See, e.g., Michelsen v.               brush, and can easily be read
Penney, 135 F.2d 409, 416-            to encompass the more
17 (2d Cir. 1943) (“[T]he             particularized claims that
original complaint clearly            appear in the Second
gave defendant notice that            Amended              Restated
he would be held for all acts         Complaint. For example,
of negligence . . . .                 the original Co mplaint
[D]efendant was bound to              broadly avers that
realize that he would be held         Appellants’ claims stem
for every possible act of             from ALPA’s actions in
mismanagement.”). It        is        causing the class to lose its
clear that the Class’ Second          seniority rights. By virtue
Amended           Restated            of the series of events
Complaint merely expounds             drafted in the original
upon and further details the          Complaint, ALPA was
factual scenario and breach           unquestionably on notice
claims that were roughly              that it would be held liable
sketched in its original              for every possible breach of
Complaint. The original               its fair representation duty
Complaint outlines in broad           occasioned by the outlined
terms        the    events            facts.            The additional
surrounding the Asse t                purported bre a c h es
Purchase Agreement, the               particularized in the Second
waiver agreement, the best            Amended              Restated
effo rts prom ise, the                Complaint derive directly

                                 14
       from        the    factual                     In finding that these allegations failed to
       circumstances adumbrated                       state a claim for relief, the District Court
       in the original Complaint.                     relied on Dycus v. NLRB, 615 F.2d 820
       T h is co n c l u s io n is                    (9th Cir. 1980). The Ninth Circuit’s
       buttressed by the lack of any                  opinion in Dycus, which involved a
       resulting disadvantage or                      discharged employee’s petition for review
       prejudice to ALPA, who by                      of an order of the NLRB dismissing an
       virtue of the original                         unfair labor practice complaint issued
       Complaint was undoubtedly                      against two union locals, concurred with
       aware of general fact                          the Board’s statement that “Local 598's
       situation and legal theory                     withdrawal as bargaining agent did not
       upon which the Class sought                    constitute a breach of the duty of fair
       to hold it liable.                             representation.” Id. at 826 n.2. Dycus,
                                                      however, does not stand for the
        The breach claims which the Class
                                                      proposition that a union’s withdrawal as a
asserted by amendment arose out of the
                                                      bargaining agent never constitutes a breach
same “conduct, transaction or occurrence
                                                      of the duty of fair representation. The
set forth . . . in the original pleading,” and
                                                      withdrawal must be done in good faith and
therefore under Rule 15(c) of the Federal
                                                      for a proper purpose. “An exclusive
Rules of Civil Procedure the amendments
                                                      bargaining agent may avoid its statutory
relate back to the date of the original
                                                      duty to bargain on behalf of the unit it
complaint.        Consequently, Appellants’
                                                      represents by unequivocally and in good
claims charging ALPA with breaches of its
                                                      faith disclaiming further interest in
duty of fair representation are timely.
                                                      representing the unit. A disclaimer will
       C. Failure to State a Claim                    not be given effect . . . if it is made for an
                                                      improper purpose . . . .” Id. at 826 (internal
       The District Court alternatively
                                                      citations omitted). Because Appellants
dismissed four of Appellants’ breach of
                                                      aver that ALPA faced a conflict of interest
the duty of fair representation claims for
                                                      in representing the former TWA pilots
failure to state claims upon which relief
                                                      arising from an active organizing
can be granted. For the following reasons,
                                                      campaign to bring American pilots into
we reverse.
                                                      ALPA with the knowledge and approval of
       The District Court treated together            APA, it is premature to dismiss these duty
Appellants’ allegations that ALPA                     of fair representation claims at this time.
breached its duty of fair representation by           If Appellants prove their allegations that
failing to seek representational rights of            ALPA failed to take specific actions on
the combined pilot group before the NMB,              behalf of its members for an improper
and by failing to challenge certification of          purpose or in bad faith, they may obtain
APA as the collective bargaining agent for            relief for ALPA’s breach of its fair
the combined pilot group before the NMB.              representation duty.

                                                 15
        Next, the District Court determined         was not executed until November 8, 2001.
that ALPA’s alleged failure to challenge            As such, ALPA had the right under the
Supplement CC following its approval on             RLA to negotiate with at least TWA-LLC
November 8, 2001 failed to state a claim            until March 5, 2002, when the NMB
for relief. Specifically, the District Court        rendered its single carrier determination,
found there to be no duty of fair                   and thereafter with American until
representation right of one union to                ALPA’s representational rights were
challenge an agreement legally signed by            extinguished on April 3, 2002. Appellants
another union and its employer. In other            thus state a viable claim.
words, ALPA’s decision not to file a futile
                                                            For the foregoing reasons, we
challenge to Supplement CC cannot
                                                    reverse the District Court’s opinion on
legally constitute a duty of fair
                                                    Count I of the Second Amended Restated
representation breach. In Air Line Pilots
                                                    Complaint and remand to permit the
Ass’n v. UAL Corp., 874 F.2d 439 (7th
                                                    parties to engage in discovery. It is our
Cir. 1989), United’s pilots, represented by
                                                    belief that at this stage of the proceedings
ALPA, brought a suit against United and
                                                    Plaintiffs should be given a fuller
United’s machinists union, complaining
                                                    opportunity for discovery relating to Count
that United entered into a collective
                                                    I and permitted to ascertain if there is any
bargaining agreement with the machinists’
                                                    factual support for their claims. At this
union to change the pilots’ terms of
                                                    point we ask “not whether a plaintiff will
employment without bargaining over the
                                                    ultimately prevail but whether the claimant
change with the pilots. The Seventh
                                                    is entitled to offer evidence to support the
Circuit held that the particular disputed
                                                    claims.” Scheuer v. Rhodes, 416 U.S. 232,
provision in United’s collective agreement
                                                    236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974),
with the machinists’ union violated the
                                                    overruled on other grounds, Harlow v.
Railway Labor Act. ALPA attempts to
                                                    Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727,
distinguish this case by noting that it did
                                                    73 L.Ed.2d 396 (1982). It may be that
not involve an airline merger, and more
                                                    ALPA properly carried out its duty of fair
importantly, that it did not address the
                                                    representation and there was nothing
issue of whether a carrier–American or
                                                    ALPA could realistically accomplish under
TWA-LLC–must bargain with a union–in
                                                    difficult circumstances. But it is too early
this case ALPA–that does not represent
                                                    to decide this issue at this point.
any of its employees. It is undisputed that
in UAL Corp., the machinists and pilots                              Count II
were all employees of United. This latter
                                                      A. Alleged Breaches of the Duty of
distinction, however, ignores the fact that
                                                         Fair Representation by APA
Appellants became employees of TWA-
                                                            Prior to April 3, 2002
LLC as of April 9, 2001, and TWA-LLC
continued to exist as a wholly owned                       Count II of the Second Amended
subsidiary of American. Supplement CC               Restated Complaint asserts against APA a

                                               16
number of purported breaches of the duty                Appellants argue that when two employee
of fair representation committed prior to               groups are combined, the duty of fair
April 3, 2002. The District Court found                 representation arises from the inclusion or
that the APA owed no duty of fair                       impending inclusion within the bargaining
representation to the Class prior to April 3,           unit that the integration process seeks to
2002, and accordingly dismissed these                   create.     The cases relied upon by
claims. We agree with the District Court                Appellants, however, do not support this
and affirm for the following reasons.                   contention. With one exception that is not
                                                        applicable in the present case, none of the
        A union has the statutory duty to
                                                        cases cited by the Class stand for the
represent all members of the appropriate
                                                        proposition that a union’s duty to a group
bargaining unit fairly. See Humphrey v.
                                                        of employees may attach before those
Moore, 375 U.S. 335, 342, 84 S.Ct. 363,
                                                        employees formerly enter the pertinent
11 L.Ed.2d 370 (1964). The scope of the
                                                        bargaining unit. Instead, as explained
d u t y o f f a i r re p r e s e nt a t io n i s
                                                        below, the finding in each of these cases
commensurate with the scope of the
                                                        that the relevant union’s purported
union’s statutory authority as the exclusive
                                                        unlawful actions implicated a duty of fair
bargaining agent. Accordingly, a member
                                                        representation occurred in the context of
of the bargaining unit has a cause of action
                                                        plaintiffs-employees who were members
against the union for breach of that duty.
                                                        of the pertinent bargaining unit at the time
Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct.
                                                        the union took the allegedly unlawful
903, 17 L.Ed.2d 842 (1967). Conversely,
                                                        actions.
the union’s statutory duty of fair
representation does not extend to those                        In Brotherhood of R.R. Trainmen v.
persons who are not members of the                      Howard, 343 U.S. 768, 72 S.Ct. 1022, 96
pertinent bargaining unit. Allied Chem. &               L.Ed. 1283 (1952), the case illustrating the
Allied Workers v. Pittsburgh Plate Glass                “exception” alluded to above, the Supreme
Co., 404 U.S. 157, 181 n.20, 92 S.Ct. 383,              Court held that a union may not use the
30 L.Ed.2d 341 (1971) (holding that                     powers accorded it under the law for the
because retirees are no longer members of               purposes of racial discrimination against
the bargaining unit, the union has no duty              employees who are not members of the
to represent them in negotiations with the              bargaining unit represented by the union.
employer). In other words, exclusive                    The Supreme Court emphasized the
representation is a necessary prerequisite              narrowness and limited reach of this
to the statutory duty to represent fairly.              opinion in Allied Chemical: “But whatever
Sipes, 386 U.S. at 177.                                 its theory, [Howard] does not require a
                                                        union affirmatively to represent non-
        Recognizing the general principle
                                                        bargaining unit members or to take into
that a labor union’s statutory duty of fair
                                                        account their interests in making bona fide
representation extends only to the
                                                        economic decisions on behalf of those
bargaining unit it exclusively represents,

                                                   17
whom it does represent.” 404 U.S. at 181            incumbent flight attendants at United]
n.20.       Ind eed , Allie d C hemical             “ratified the allegedly violative [seniority]
unequivocally held that the bargaining              agreement,” “the 1,202 incoming flight
agent is under no statutory duty to                 attendants [from Pan American] already
represent those not members of the                  had been working for United,” were
bargaining unit in negotiations with the            already members of the AFA, and thus
employer. Id. Jones v. Trans World                  were part of the United bargaining unit to
Airlines, Inc., 495 F.2d 790 (2d Cir. 1974),        which the AFA owed the duty of fair
involved two separate classes of Trans              representation. 933 F.2d at 1106. Bernard
World Airlines employees--guards and                v. Air Line Pilots Ass’n, 873 F.2d 213 (9th
passenger relations agents--who performed           Cir. 1989) concerned the merger of Jet
many of the same functions. 495 F.2d at             America and Alaska Airlines. Prior to the
793-94. Only the guards were represented            merger, Alaska pilots were represented by
by a union. Id. Relying on findings that            ALPA, while Jet America pilots were
the union “insist[ed] that the passenger            unrepresented. Alaska Air Group, the
relations agent jobs were in the guard unit”        acquiring corporate parent of Alaska
and that the passenger relations agents             Airlines, operated Jet America and Alaska
“had performed guard duties all along,”             separately for several months, then
the court held that the passenger relations         announced it would merge the carriers.
agents were de facto members of the guard           ALPA negotiated with Alaska regarding
bargaining unit. Id. at 797. The Second             integration of the Jet America pilots with
Circuit thus concluded that the union               the Alaska pilots for purposes of seniority.
breached its duty of fair representation by         Despite repeated requests, Jet America
discriminating against the passenger                pilots were prohibited from partaking in
relations agents based on their non-union           the seniority discussions both prior to and
status. Id. at 798. This Circuit has                following the effective date of merger on
characterized Jones as “stand[ing] for the          October 1, 1987. An agreement between
limited and undisputed proposition that             ALPA and Alaska was not reached until
discrimination against non-member                   October 6, 1987. In affirming the district
employees who are part of the bargaining            court’s finding that ALPA breached of its
unit is impermissibly arbitrary if no               duty of fair representation as to the Jet
relevant distinctions exist between the             America pilots, the Ninth Circuit noted
union and non-union employees.” Deboles             that there was no dispute that the non-
v. Trans World Airlines, Inc., 552 F.2d             union Jet America pilots had entered the
1005 (3d Cir. 1977) (emphasis added).               Alaska pilots’ bargaining unit prior to
Similarly, in Gvozdenovic v. United Air             October 6, 1987, the date the agreement
Lines, Inc., 933 F.2d 1100 (2d Cir.), cert.         adversely affecting plaintiffs’ seniority
denied, 502 U.S. 910, 112 S.Ct. 305, 116            rights was reached between ALPA and
L.Ed.2d 248 (1991), “as of the date” the            Alaska. 873 F.2d at 216.
AFA [the union representing the

                                               18
        The parallels between this case and            representation. To the extent Howard, as
that confronting the Ninth Circuit in                  clarified by Allied Chemical is an
McNamara-Blad v. Ass’n of Professional                 exception to this rule, it not implicated
Flight Attendants, 275 F.3d 1165 (9th Cir.             here because the APA’s decision to
2002) are striking. In late 1998, American             subordinate the seniority of most TWA-
purchased 80% of Reno’s outstanding                    LLC pilots was a bona fide economic
shares and announced it would merge the                decision made to protect the interests of
operations of the two airlines. Prior to               American’s pilots, for whom APA did
merger of the flight operations on August              have a statutory duty to fairly represent.
31, 1999, APFA, the union representing                 Before the NMB consolidated the TWA-
American’s flight attendants (the Reno                 LLC pilots into the American bargaining
flight attendants were represented by                  unit on April 3, 2002, when it certified
another union), reached a seniority                    APA as the exclusive bargaining agent, the
integration agreement with American.                   pilots at American and the pilots at TWA-
This agreement endtailed all Reno flight               LLC belonged to different bargaining
attendants, and was implemented as of                  units, each with its own exclusive
August 31, 1999. In affirming the district             bargaining representative.     It is only
court’s finding that, as a matter of law, the          subsequent to April 3, 2002 that APA held
Reno flight attendants were not in the                 a statutory duty to the Class.
APFA’s bargaining unit and thus that the
                                                              This outcome is supported from a
APFA was not required to fairly represent
                                                       policy perspective. Appellants contend
them, the Ninth Circuit explained that
                                                       that following the reasoning espoused in
“[t]he work-forces of the two merging
                                                       McNamara-Blad will enable unions to
carrier become a single bargaining unit
                                                       conspire and time events in a manner
only when the carriers become a ‘single
                                                       designed to avoid duties of fair
carrier’ . . . American and Reno did not
                                                       representation that would otherwise be
b e co m e a ‘ s i n g l e c ar r ie r ’ f or
                                                       owed to a group. In this case, had the
representational purposes until August 31,
                                                       Class become employed by American (as
1999, after the seniority agreement
                                                       opposed to TWA-LLC) following closing
between the APFA and American was
                                                       of the merger, APA would most probably
reached.” 275 F.3d at 1170 (internal
                                                       have been the exclusive bargaining agent
citations omitted). The analogies between
                                                       for both the Class and American’s pilots
McNamara-Blad and the instant case are
                                                       and would have owed a statutory duty to
obvious.
                                                       both groups in negotiating seniority. To
          Contrary to the Class’ assertion, the        avoid a statutory duty to fairly represent
cases discussed above indicate that it is              the Class, Appellants aver that APA and
actual inclusion in the bargaining unit–not            American created the fiction that the two
“impending” inclusio n–that triggers                   groups of pilots were employed by
a tt ac h m ent of the duty of fair                    different entities (American and TWA-


                                                  19
LLC) and that the Class was not part of the                  Count II of the Second Amended
APA bargaining unit. This fiction enabled             Restated Complaint further asserts that
APA to unilaterally negotiate the Class’              APA breached its duty of fair
seniority with American without the Class’            representation to the Class after April 3,
input. Appellants allege that Supplement              2002 by failing to require American to
CC was intentionally entered into by APA              maintain the status quo as to the Class’
and American prior to APA’s petition to               working conditions, including seniority.
extend its certification to cover the Class           In lieu of maintaining the status quo,
to avoid the consequences of Bernard.                 Appellants allege that Supplement CC was
Nevertheless, we agree with APA that the              imposed without following the requisite
Class’ allegations that ALPA breached its             section 6 procedures of the RLA, 45
duties and conspired with APA to deprive              U.S.C. § 156.        The District Court
the Class of valuable rights does not justify         dismissed the allegations for failure to
imposition of a fair representation duty on           state breaches of the duty of fair
APA prior to April 3, 2002.                           representation, either because the
                                                      allegations are “too general in nature to
        Appellants’ conspiracy concerns,
                                                      specify any actual DFR breach” or because
while legitimate, run counter to an
                                                      there was nothing for APA to negotiate on
important competing policy articulated in
                                                      behalf of the Class once Supplement CC
McNamara-Blad. Adopting Appellants’
                                                      became effective. For the following
position “would force unions to protect the
                                                      reasons, we affirm.
interests of any person who might become
a bargaining unit member to the detriment                     The “status quo” provision of
of current bargaining unit members. Such              section 6 of the RLA directs that, while the
a duty would contravene the union’s                   major dispute resolution procedures are
statutory duty to protect the interests of its        being followed, “rates of pay, rules or
own bargaining unit members.” 275 F.3d                working conditions shall not be altered by
at 1173. In light of the fact that Appellants         the carrier until the controversy has been
do have a remedy against their former                 finally acted upon as required by [the
bargaining agent, ALPA, this observation              RLA]. . . .” 45 U.S.C. § 156; see also id. §
outweighs Appellants’ concerns regarding              152, Seventh (“No carrier . . . shall change
possible collusion and conspiracy.                    the rates of pay, rules, or working
                                                      conditions of its employees . . . except in
       Because we agree with the District
                                                      the manner prescribed in [collective
Court that APA owed no duty of fair
                                                      bargaining] agreements or in section 156
representation to the Class prior to April 3,
                                                      of this title.”). The purpose of the status
2002, we affirm.
                                                      quo provisions is to impose an obligation
   B. Alleged Breaches of the Duty of                 on the parties to make every reasonable
      Fair Representation by APA                      effort to negotiate a settlement. The
           Post-April 3, 2002                         provisions promote compromise to avoid


                                                 20
strikes. See Detroit & Toledo Shore Line                      Appellants argue that the terms and
R.R. Co. v. United Transp. Union, 396                 conditions embodied in the TWA-
U.S. 142, 148-49, 149 n.14, 90 S.Ct. 294,             LLC/ALPA transition agreement, which
24 L.Ed.2d 325 (1969). With respect to                expired by its own terms on April 3, 2002
ascertaining what the appropriate status              when the NMB extended APA’s
quo conditions are, the Supreme Court has             certification to cover the Class, constitute
counseled that “the status quo extends to             the status quo and should have continued
those actual, objective working conditions            in full force until the APA negotiated new
out of which the dispute arose, and clearly           terms with American, with the exception
these conditions need not be covered in an            of those limited terms which the parties
existing agreement.” Id. at 153. As such,             had previously agreed would change. The
it is of no moment if the relevant collective         transition agreement does not provide that
bargaining agreement upon which the                   the Class would be bound to any
dispute is based has expired. Because the             agreement entered into between American
status quo derives from the RLA, and not              and APA upon determination of single
contract, that agreement can still be used            carrier status an d the tr ansitio n
to inform the court’s status quo                      agreement’s expiration.
determination. “[T]he inquiry is not one
                                                               We agree that the Class never
which looks to the parties’ collective
                                                      waived its statutory rights under the RLA.
bargaining agreements; instead, the act
                                                      Section 6 of the RLA is not implicated,
requires an objective determination of the
                                                      h o w e v e r, beca use im positio n o f
actual status quo.” Int’l Ass’n of
                                                      Supplement CC upon on the Class on
Machinists and Aerospace Workers v.
                                                      April 3, 2002 did not constitute a change
Aloha Airlines, Inc., 776 F.2d 812, 816 (9 th
                                                      in the Class’ status quo. The facilitation
Cir. 1985). Moreover, that the focus of the
                                                      agreement, signed by ALPA, APA, TWA-
status quo inquiry is on “actual, objective
                                                      LLC and American, provides that, “in the
working conditions” does not preclude the
                                                      event that APA and ALPA reach an
parties from entering into an explicit
                                                      agreement on an integrated seniority list .
agreement defining the specific conditions
                                                      . . such agreement will be presented to
that the parties want to constitute the status
                                                      American as a proposed modification of
quo during the appropriate renegotiation
                                                      Section 13 of the collective bargaining
period, even if such conditions differ from
                                                      agreement between American and APA.”
the actual, objective status quo. In other
                                                      In essence, the status quo became a right to
words, section 6 of the RLA does not
                                                      a particular process and whatever result it
prevent the parties from altering the actual,
                                                      yielded. The facilitation agreement did not
objective status quo by agreement. Airline
                                                      explicitly detail what would occur in the
Pilots Ass’n, Int’l v. Pan-Am. World
                                                      event the two unions failed to reach an
Airways, Inc., 765 F.2d 377, 381 (2d Cir.
                                                      agreement. Implicit in its arrangement,
1985).
                                                      however, is that the Class would be bound


                                                 21
by the terms of the American-APA                    After the NMB declared USAir and
collective bargaining agreement as those            Shuttle to be a single transportation
terms existed at the time the NMB                   system, extinguished TWU’s certification,
extended APA’s certification as the                 and certified AFA as the bargaining
bargaining representative for the entire            representative for both Shuttle and USAir
Class, whether or not such terms had been           flight attendants, USAir insisted that the
modified by an agreement struck between             Shuttle employees were still covered by
APA and ALPA. As such, Supplement                   the terms of the Eastern-TWU agreement
CC provided the status quo terms for the            until a new agreement is negotiated. AFA
Class. This status quo determination is             then filed suit against USAir, contending
not, as Appellants argue, akin to finding a         that the AFA-USAir agreement necessarily
waiver of statutory rights. Instead, it             establishes the terms and conditions to be
illustrates that the Class’ statutory rights        applied to Shuttle flight attendants until a
were not in issue because there was no              new agreement is negotiated. The D.C.
modification of the status quo. Pursuant to         Circuit held that the Eastern-TWU
the facilitation agreement, the Class               agreement fixed the status quo in the
consented to be bound by the APA-                   bargaining relationship between USAir
American collective bargaining agreement,           and AFA on behalf of Shuttle flight
including Supplement CC, upon the                   attendants. Consequently, the terms of that
appropriate declarations by the NMB.                agreement govern the working conditions
                                                    of Shuttle flight attendants until USAir and
        Consideration of the terms of the
                                                    AFA agree otherwise. The Circuit defined
expired transition agreement does not alter
                                                    the issue as follows: “whether, as a matter
the analysis. With respect to the issue of
                                                    of law, the Board’s termination of TW U’s
seniority, the transition agreement did no
                                                    certification simultaneously caused the
more than rank the former TWA pilots vis-
                                                    ‘status quo’ for Shuttle flight attendants to
a-vis themselves. Indeed, it intentionally
                                                    be changed so as to be defined by the
excluded any reference as to what sort of
                                                    terms in the AFA-USAir agreement rather
seniority agreement would ensue upon a
                                                    than in the Eastern-TWU agreement.” In
determination by the NMB that TWA-LLC
                                                    answering this in the negative, the court
and American constituted a single
                                                    made several observations pertinent to our
employer.
                                                    inquiry. The court pointed out that the
       While no case is directly on point,          AFA-USAir agreement did not mandate
Ass’n of Flight Attendants v. USAir, Inc.,          that its coverage be extended to new units
24 F.3d 1432 (D.C. Cir. 1994) lends                 of flight attendants. Significantly, the
support to this position. In AFA, USAir             court states that “there is no doubt that
had assumed managerial control over                 AFA and USAir could have included some
Shuttle’s flight operations. The USAir              such clause in their agreement to cover
pilots were represented by AFA, and the             new units or groups of flight attendants
Shuttle pilots were represented by TWU.             added to the USAir transportation system.”

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

                                               23
        The RLA does not expressly grant            U.S. 915, 97 S.Ct. 2177, 53 L.Ed.2d 225
a private right of action to enforce its            (1977); Beckett v. Atlas Air, Inc., No. 95-
provisions. Although the legislative history        0480, 1995 WL 498703 (E.D.N.Y. Aug.
of the RLA is silent on the issue of                14, 1995); Int’l Ass’n of Machinists and
whether Congress intended to imply a                Aerospace Workers v. Altair Airlines, Inc.,
private right of action under the RLA, see          481 F.Supp. 1359, 1360 (E.D. Pa. 1979).
Texas & N.O.R. Co. v. Brotherhood of Ry.            Implying a private cause of action for
& S.S. Clerks, 281 U.S. 548, 50 S.Ct. 427,          individual employees under 45 U.S.C. §
74 L.Ed 1034 (1930), “the failure of                152, Third & Fourth of the RLA is
Congress expressly to consider a private            appropriate given that those sections
remedy is not inevitably inconsistent with          prohibit carriers from discriminating
an intent on its part to make such a remedy         against employees in connection with
available.” Transamerica Mort. Advisors,            union organizing activities. See Int’l
Inc. v. Lewis, 444 U.S. 11, 17, 100 S.Ct.           Ass’n of Machinists v. Northwest Airlines,
242, 62 L.Ed.2d 146 (1979). An intent to            673 F.2d 700, 707 (3d Cir. 1982). In
imply a private remedy may lie implicitly           Adams, however, the Sixth Circuit held
in the language or structure of a statute.          that “the Railway Labor Act confers no
Id. The Supreme Court has promulgated               implied right of action upon an uncertified
factors for determining whether a private           union to maintain a suit on behalf of
remedy is implicit in a statute not                 employees it seeks to represent.” Adams,
expressly providing one. Cort v. Ash, 422           547 F.2d at 322 (emphasis added).
U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26           Furthermore, research has not revealed any
(1975).                                             cases where the federal courts have
                                                    allowed individual employees to pursue
       Courts have found private rights
                                                    RLA statutory claims outside of 45 U.S.C.
under other provisions of 45 U.S.C. § 152.
                                                    § 152, Third & Fourth, except for duty of
Applying the Cort v. Ash factors, many
                                                    fair representation suits against a union.
courts have implied a private right of
action for individual employees within 45                   In contrast to 45 U.S.C. § 152,
U.S.C. § 152, Third & Fourth of the RLA.            Third & Fourth, 45 U.S.C. § 152, Ninth &
See, e.g., Roscello v. Southwest Airlines           Second does not create a private right of
Co., 726 F.2d 217, 220 (5th Cir. 1984);             action for individual employees.          In
Adams v. Fed. Express Corp., 547 F.2d               determining whether Appellants have an
319, 321 (6th Cir. 1976), cert. denied, 431         implied right of action under 45 U.S.C. §
                                                    152, Ninth & Second of the RLA, we must
                                                    employ the four factors set forth in Cort v.
American and TWA -LLC, whether                      Ash, 422 U.S. 66, 95 S.Ct. 2080, 45
Appellants’ claims fail to state claims for         L.Ed.2d 26 (1975), specifically focusing
relief or pose a representational dispute           on the first two factors: (1) whether
subject to the exclusive jurisdiction of the        plaintiff is a member of the class “for
NM B.

                                               24
whose especial benefit the statute was                        representative.” That the statute may
enacted”; and (2) whether there is                            indicate a congressional intent to create a
evidence of legislative intent to create or                   private cause of action for a duly certified
preclude the relief sought. Id. at 78; see                    representative that is injured pursuant to
Touche Ross & Co. v. Redington, 442                           these provisions does not imply that
U.S. 560, 575-76, 99 S.Ct. 2479, 61                           Congress intended to create a private right
L.Ed.2d 82 (1979). Unlike 45 U.S.C. §                         of action for any group or groups of
152, Third & Fourth, which are directed                       individual employees claiming to act on
specifically at the employer’s relationship                   behalf of the relevant employees. Cf.
with employees, 45 U.S.C. § 152, Ninth &                      Adams.
Second are directed at the employer’s
                                                                      A number of additional factors
r e l a t i o n s h i p w i t h t h e ce r t i f i e d
                                                              militate against granting individual
representative. 45 U.S.C. § 152, Ninth of
                                                              employees a right to assert claims under 45
the RLA provides that the NMB shall
                                                              U.S.C. § 152, Second & Ninth. Allowing
resolve “disputes as to who are the
                                                              a group or groups of individual employees
representatives of the employees
                                                              to bring a cause of action under section
designated and authorized in accordance
                                                              152, Second or section 152, Ninth of the
with the requirements of this Chapter” and
                                                              RLA would undermine the provisions’
to certify a designated union as bargaining
                                                              purpose of providing for an organized
agent. 45 U.S.C. § 152, Ninth. It provides
                                                              process of negotiation between one
further that “upon receipt of such
                                                              employee representative and the employer,
certification the carrier shall treat with the
                                                              and could lead to chaos. A bargaining
representative so certified as the
                                                              agent, as opposed to any of its individual
representative of the craft or class for the
                                                              members, is in the best position to bring
purposes of this Chapter.” § 152, Ninth
                                                              forth these types of grievances because a
(emphasis added). 45 U.S.C. § 152,
                                                              union is required to act in the best interests
Second of the RLA similarly provides that
                                                              of all its principals. Moreover, and
“[a]ll disputes between a carrier . . . and its
                                                              im po rta nt ly, individ ual e m ployees
. . . employees shall be considered, and, if
                                                              claiming to be aggrieved by the failure to
possible, decided, with all expedition, in
                                                              treat or the failure to negotiate in good
conference between repre sentatives
                                                              faith already have a remedy–individual
designated and authorized so to confer, . .
                                                              employees may press a duty of fair
. ” § 152, Second (emphasis added).
                                                              repres enta tion claim again st th e
       We agree with the District Court                       appropriate representative(s), as was done
that Appellants “are not within the                           by Appellants in this case, or the certified
definition of the class that the statute was                  representative may bring a suit against the
designed to protect” because “[t]he statute                   carrier.      Pursuant to this analysis,
does not state that the carrier must ‘treat’                  Appellants as a class lack an implied
with its employees, but rather with their                     private right of action to bring claims


                                                         25
asserting breaches of the duty to bargain            proceed in federal court because he could
and duty to negotiate in good faith against          not obtain meaningful relief before the
American and TWA-LLC because they are                Board.
not and have never been a certified
                                                             Childs does not apply in this case.
representative of the TWA pilots.
                                                     To begin with, we expressly stated in
       The District Court did not address            Childs that we were addressing “the rare
the Class’ second theory in support of               case in which the union, by breaching its
federal standing in Counts III and IV--that          DFR, effectively precludes the employee’s
it could bring a “hybrid” claim under                opportunity for obtaining relief before the
Childs against American and TWA-LLC.                 NRAB.” 831 F.2d at 441. Unlike Childs,
                                                     the Class in the instant suit has not alleged
         In Childs, 831 F.2d 429, a railroad
                                                     that American and/or TWA-LLC breached
employee brought suit in federal court
                                                     a collective bargaining agreement. Childs
charging his union with a breach of its
                                                     also involved an employee’s loss of an
duty of fair representation, and also
                                                     express statutory right, whereas only an
charging his employer with a breach of the
                                                     implied right was claimed by the Class in
collective bargaining agreement. Even
                                                     the present case. M oreover, the stated goal
though the claim against the employer
                                                     of Childs was carrying out the RLA’s
constitutes a “minor dispute” within the
                                                     central policy of affording employees
exclusive jurisdiction of the NRAB, 45
                                                     some fair and efficient means of redressing
U.S.C. § 153, we held that an employee
                                                     their grievances. This is not the situation
may bring this claim against his employer
                                                     in the present case. If a union breaches its
in federal court. We held this because it
                                                     duty of fair representation by failing to
was alleged that the employee could not
                                                     require a carrier to treat with it, as required
obtain meaningful relief before the Board
                                                     by section 152, Ninth of the RLA, an
against the employer because the union’s
                                                     individual employee’s remedy lies in a
breach of its duty of fair representation had
                                                     duty of fair representation action against
precluded the employee from presenting
                                                     the union, not a major dispute claim
crucial evidence to the Board. We stated
                                                     against the carrier. As noted, Appellants
that “[o]ne important policy of the RLA .
                                                     may proceed against ALPA in this case.
. . is to afford employees means for relief.
Therefore, courts have form ulated                         Because we hold that Appellants
exceptions to the jurisdictional scheme of           may not pursue the claims averred in
the RLA where it appears that without                Counts III and IV, the District Court’s
such access to the federal courts the                dismissal of these claims is affirmed.
employee’s right to redress would be
                                                                    Counts V - IX
jeopardized.” 831 F.2d at 437. Thus, even
though an employee would normally have                     In Counts V through IX of their
to arbitrate a minor dispute before the              Second Amended Restated Complaint,
Board, the employee was permitted to                 Appellants allege state-law violations by

                                                26
Appellees, which they plead in the                  Trainmen v. Jacksonville Terminal Co.,
alternative to their federal claims. Counts         394 U.S. 369, 89 S.Ct. 1109, 22 L.Ed.2d
V and VI allege that American, TWA-                 344 (1969). Under Garmon, state-law
LLC, and APA engaged in tortious and                causes of action are presumptively
malicious interference and fraudulent               preempted where they concern conduct
misrepresentation with respect to the               that is actually or arguably either protected
collective bargaining agreement between             or prohibited by federal labor relations
ALPA and TWA. Appellants claim that as              law.     Pennsylvania Nurses Ass’n v.
a result of the alleged interference and            Pennsylvania State Educ. Ass’n, 90 F.3d
misrepresentations, ALPA agreed to the              797, 801 (3d Cir. 1996). The two explicit
waiver agreement to Appellants’ detriment           exceptions to this preemption apply to
a n d b r e ached i t s d u t y o f f a ir          conduct “deeply rooted in local feeling and
representation. Appellants proceed to               responsibility” and to matters of only
claim in Counts VII and VIII that                   “peripheral concern” to federal labor
American and TWA-LLC breached the                   relations law. Garmon, 359 U.S. at 243-
transition agreement by failing to use their        44. Despite the generally sweeping nature
best efforts to secure a fair and equitable         of Garmon preemption, the Supreme Court
process for seniority integration. APA              has recognized judicial responsibility to
allegedly tortiously interfered with                “determine the scope of the general rule by
American and TWA-LLC’s contractual                  examining the state interests in regulating
obligations under the transition agreement          the conduct in question and the potential
by causing them to breach. Finally, Count           for interference with the federal regulatory
IX alleges that American, TWA-LLC,                  scheme.” Farmer v. United Bhd. of
APA, and ALPA conspired with the                    Carpenters and Joiners of Am., Local 25,
common design of abrogating the TWA                 430 U.S. 290, 297, 97 S.Ct. 1056, 1062, 51
seniority integration provisions and                L.Ed.2d 338 (1977).
endtailing the vast majority of TWA pilots
                                                            A principal purpose of the RLA is
in favor of the incumbent American pilots.
                                                    to provide for the prompt and orderly
The District Court dismissed Counts V
                                                    settlement of all disputes over pay, rules,
though IX as preempted by the RLA.
                                                    or wor king c ondi t io n s a n d th e
       Appellants argue that the District           interpre tation a nd application of
Court erred in dismissing their state-law           agreements concerning pay, rules, or
claims against APA, American, and TWA-              working conditions. RLA § 2, 45 U.S.C.
LLC. The District Court’s decision relied           § 151a. Appellants’ state-law claims all
on the preemption doctrine established in           involve alleged interference with their
San Diego Building Trades Council v.                employment rights as established by the
Garmon, 359 U.S. 236, 79 S.Ct. 773, 3               various agreements that govern their
L.Ed.2d 775 (1959), which was extended              wages and other benefits as well as their
to the RLA in Brotherhood of Railroad               right to be fairly represented under RLA §


                                               27
2, 45 U.S.C. § 152. Thus the property                District Court’s finding that APA owed no
rights at issue are founded upon federal             duty necessarily means that the RLA does
law, derive their strength and protection            not apply to this conduct. For support,
from federal law, and exist to effectuate a          Appellants rely on Krantz v. Air Line
nationwide federal labor policy. See                 Pilots Association, International, 427 S.E.
Wilkes-Barre Pub. Co. v. Newspaper                   236 (Va. 1993), where the Virginia
Guild of Wilkes-Barre, Local 120, 647                Supreme Court held that the RLA did not
F.2d 372, 380-81 (3d Cir. 1981).                     preempt a job applicant’s right to sue a
                                                     union for tortious interference with
       Having determined that Appellants’
                                                     pro spective em plo ymen t.          Wh ile
contractual rights are protected by federal
                                                     expressing no opinion on the Krantz
labor law, which satisfies the presumptive
                                                     holding itself, Appellants’ situation is
preemption of Garmon, we now consider
                                                     distinguishable. The court in Krantz based
whether any exception to this presumption
                                                     its decision on the proposition that a job
applies. The state-law claims alleged seek
                                                     applicant “has no federally protected right”
to protect Appellants’ rights as established
                                                     to employment under the RLA. Krantz,
through their collectively-bargained
                                                     427 S.E. at 329-30. Here Appellants seek
agreements. Thus they do not concern
                                                     to protect their rights in an existing
conduct touching interests deeply rooted in
                                                     employment relation as provided by the
local feeling and responsibility. See
                                                     relevant collective bargaining agreements
Wilkes-Barre, 647 F.2d at 381 (holding
                                                     and the statutory protections of the RLA.
that tortious interference with a labor
                                                     These rights stem from federal law, so
contract is not conduct touching interests
                                                     Krantz is inapposite.
deeply rooted in local feeling and
responsibility). Nor is this a matter of only               The rights and duties of unions in
peripheral concern to federal law. Clearly,          carrying out their representational
the process of seniority integration in the          functions is an area where “the policy of
event of an acquisition directly affects the         the law is so dominated by the sweep of
wages and other benefits of workers. The             federal statutes that legal relations which
RLA determines the rights, obligations,              they affect must be deemed governed by
a n d duti e s o f employees, the ir                 federal law having its source in those
representatives, and carriers with respect           statutes, rather than by local law.” Condon
to negotiations and agreements concerning            v. Local 2944, United Steelworkers, 683
such a central aspect of employment.                 F.2d 590, 594-95 (1st Cir. 1982) (quoting
Thus, federal law is directly concerned              Local 20, Teamsters Union v. Morton, 377
with the issues here.                                U.S. 252, 261, 84 S.Ct. 1253, 1259, 12
                                                     L.Ed.2d 280 (1964)). The importance of
        Appellants argue that with respect
                                                     uniform relations among employees,
to their claims against APA, there can be
                                                     unions, and employers may call for
no preemption of state-law claims if APA
                                                     preemption of state protections of federal
owed no duty to them. They assert that the

                                                28
rights, even where federal law does not             limitation on the RLA’s scope. The RLA
impose an analogous duty. See Kaufman               covers “disputes between an employee or
v. Allied Pilots Ass’n, 274 F.3d 197 (5th           group of employees and a carrier or
Cir. 2001) (holding airline passengers’             carriers by air” not merely disputes
state-law claims against union preempted            between a carrier and its own employees.
by federal law, despite lack of equivalent          RLA § 204, 45 U.S.C. § 184. We thus
remedy to passengers). Appellants’ relief           believe that congressional intent was to
for any violations of their contractual or          submit such disputes to the RLA
statutory rights must come in the manner            resolution mechanisms. See Pyles v.
prescribed by federal law.                          United Air Lines, Inc., 79 F.3d 1046,
                                                    1050-52 (11th Cir. 1996) (holding that
        Appellants argue with respect to the
                                                    employees of one carrier may seek relief
claims against American, that the RLA
                                                    under the RLA for disputes with another
cannot apply to the period of time for
                                                    carrier). Preemption of the state-law
which Appellants were not employed by
                                                    claims is therefore appropriate, and
American and thus the state-law claims
                                                    Appellants’ argument must be rejected.
cannot be preempted. Appellants rest their
argument primarily on our decision in                       We conclude that Appellants’ state-
Felice v. Sever, 985 F.2d 1221 (3d Cir.             law claims seek to protect their contractual
1993). In Felice, we held that state-law            rights negotiated under the auspices of the
claims that did not implicate a collective          RLA and not any independent state-law
bargaining agreement covered by § 301(a)            right. Cf. Hawaiian Airlines Inc. v. Norris,
of the Labor Management Relations Act               512 U.S. 246, 260-61, 114 S.Ct. 2239,
(LMRA) did not give rise to immunity of             2247-48, 129 L.Ed.2d 203 (1994) (finding
union officials under § 301(b). In part, we         a state whistleblower statute to provide an
reasoned that because the plaintiff in that         independent right not to be discharged).
case was not covered by a collective                Appellants’ state-law claims were properly
bargaining agreement and thus not                   dismissed as preempted by the RLA.
represented by a labor organization, § 301
                                                                  V. Conclusion
did not apply to the relationship between
the parties and could not serve to preempt                We reverse and remand on Count I
state law. This case, though instructive, is        of Appellants’ Second Amended Restated
not directly applicable because it involves         Complaint. We affirm the District Court’s
provisions of the LMRA which have no                dismissal of all remaining Counts of the
corresponding provision in the RLA.                 Second Amended Restated Complaint.
       Appellants urge that the RLA and
its arbitration provisions only apply to
                                                    FISHER, Circuit Judge, dissenting.
disputes between a carrier and its
employees. However, the plain language                     I dissent because I disagree with the
of the statute does not support such a              majority’s analysis of Count I. I join the

                                               29
majority’s affirmance of the remainder of           waiver clearly and unmistakably included
the claims on appeal. But I would affirm            a waiver of the Class’ contractual right to
the district court’s determination of the           arbitrate seniority integration issues and
untimeliness of the Class’ claims in Count          their right to bargain over seniority after
I asserting that the Air Line Pilots                American’s purchase of TWA, any claim
Association (“ALPA”) breached its duty of           that ALPA breached its duty of fair
fair representation (“duty”) under the              representation to the Class accrued at that
Railway Labor Act, 45 U.S.C. § 151, et.             time.
seq.
                                                           There were no rays of hope to
           A fundamental premise of the             extend the accrual of the duty of fair
majority opinion is that Supplement CC              representation claims based on ALPA’s
(the November 8, 2001 agreement between             post-waiver actions or inaction. The
American’s pilots and American regarding            waiver and its attendant agreements (the
seniority integration of former TWA pilots          Transition Agreement between the Class
and American’s pilots) was not the                  pilots and TWA, LLC and the “best
inescapable result of the Class’ waiver of          efforts” letter from American) eliminated
Allegheny-Mohawk labor p rotective                  ALPA’s ability to effectively bargain with
provisions in April of 2001. The subject            either TWA, LLC or American for any
of the scope of the waiver and whether it           seniority integration different from that
included the right to bargain over seniority        which existed at the time of the waiver.
integration post-purchase was precisely             Because of the limitations these
why American required the waiver of                 agreements imposed upon ALPA’s ability
those rights as a condition precedent to its
purchase of TWA’s assets out of
bankruptcy. This was to avoid conflict
between the collective ba rgainin g
agreements applicable respectively to the
American and TWA pilots regarding                   C.A.B. 22, 31-40 (1972). The collective
seniority (which absent the waiver                  bargaining agreement between American
c o n t a in e d irrecon cilable s eniorit y        and its pilots (represented by the Allied
provisions). 6 Because the April 2001               Pilots Association) contained a provision
                                                    that pilots new to American due to the
                                                    acquisition of another airline will not
    6
    The collective bargaining agreement             begin to accrue seniority until they begin
between TWA and its pilots contained                working for American (endtailing).
Allegheny-Mohawk labor protective                   Seniority governs rates of pay, flight
provisions including the right to arbitrate         schedules and routes, type of airplane
seniority integration in the event of a             flown, whether pilots fly as captain or first
merger with another airline.           See          officer and their eligibility for furlough
Allegheny-Mohawk Merger Case, 59                    and recall.

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

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

                                               32
Executive Council subsequently entered               any bargaining obligations under the
into a Stipulation approved by the                   Railway Labor Act, TWA, LLC’s sole
Bankruptcy Court on April 6, 2001.                   obligation shall be to confer with ALPA
Pursuant to that Stipulation, TWA                    on all changes...” and provide those
withdrew its section 1113 motion and was             changes in writing.
authorized to eliminate the seniority
                                                                         III.
integration protections from its pilot’s
collective bargaining agreement. The                         Claims for breach of the duty of fair
terms of the Stipulation and the                     representation under the Railway Labor
circumstances and import of the waiver of            Act are subject to a six-month limitations
seniority integration protections were               period. Miklavic v. USAir, Inc., 21 F.3d
echoed in the April 3, 2001 announcement             511, 556 (3d Cir. 1994); Sisco v.
made to TWA pilots by Robert Pastore,                Consolidated Rail Corp., 732 F.2d 1188
President of the pilot’s Master Executive            (3d Cir. 1984) (applying DelCostello v.
Council.                                             Int’l Board of Teamsters, 462 U.S. 151,
                                                     158 (1983). The district court concluded
        On April 9, 2001, the Bankruptcy
                                                     that the Class’ claims against ALPA for
Court approved the sale of TWA’s assets,
                                                     breach of the duty of fair representation
resulting in the Class becoming employees
                                                     accrued at the latest by April 6, 2001,
of TWA, LLC. That same date, ALPA
                                                     when the Stipulation waiving seniority
and TWA, LLC entered into a “Transition
                                                     integration rights was entered by the
Agreement,” providing that ALPA would
                                                     Bankruptcy Court. The court reasoned
rema in the ex clusiv e bargainin g
                                                     that since the resolution waiving seniority
representative for the former TW A pilots
                                                     integration rights was agreed to on April 2,
until the National Mediation Board found
                                                     2001, and approved by the Bankruptcy
American and TWA, LLC to be a single
                                                     Court on April 6, 2001, the claims against
carrier whose pilots were represented by
                                                     ALPA, which were not filed until
the Allied Pilots Association. By its terms
                                                     September 3, 2002, clearly were beyond
(set forth in Section 30), the Transition
                                                     the six-month limitations period. In so
Agreement was not amendable during the
                                                     holding, the district court relied upon
transition period and would expire upon
                                                     Local Lodge No. 1424 v. National Labor
National Mediation Board certification of
                                                     Relations Board, 326 U.S. 411, 415-17
single carrier status. Section 1B of the
                                                     (1960) for the proposition that the
Transition Agreement further provided
                                                     limitations period begins to run from the
that TWA-LLC could modify the work
                                                     date of the execution of the challenged
rules and benefits as necessary upon 21-
                                                     agreement. Bensel v. Allied Pilots Ass’n,
days notice in order to effect the transition
                                                     271 F. Supp 616, 622 (D. N.J. 2003).
of the former TWA pilots to American.
Significantly, during that 21-day notice                   The majority concluded that Local
period, section 1B specified that “in lieu of        Lodge bars the Class’ claims only if the


                                                33
limitations period associated with ALPA’s           district court recognized, that the waiver
initial breach of its duty accrued on April         subsumed any rights to bargain for
6, 2001, and that all subsequent breaches           seniority integration from April 2001
of its duty were “inescapably grounded” in          forward. That includes the claims that
that breach. It did not find that these             subsequent to the waiver, ALPA breached
conditions were met. Local Lodge, 326               its duty by failing to challenge Supplement
U.S. at 422. Unlike the majority, however,          CC, failing to negotiate seniority
I conclude that both of these conditions            integration with the Allied Pilots
were met to warrant application of Local            Association during the transition period,
Lodge for accrual purposes. I disagree that         and permitting American to dictate that
Supplement CC 11 and the allegations that           seniority integration would be negotiated
ALPA breached its duty of fair                      between the two pilot’s unions.
representation post-waiver constituted
                                                                         A.
breaches separate from the initial breach of
ALPA’s duty – that it coerced the pilots                    The waiver must be viewed not as
into waiving their seniority integration            a singular act in April 2001 but as a series
protections. Rather, I conclude, as the             of agreements that effectively waived any
                                                    right to bargain for seniority integration
                                                    with either TWA, LLC or American. First,
   11                                               the TWA Master Executive Council
      From February to October 2001, the
                                                    agreed to waive seniority integration
Allied Pilots Association and the TWA
                                                    protections in exchange for TWA’s
Master Executive Council attempted to
                                                    withdrawal of its bankruptcy motion to
negotiate seniority integration terms, even
                                                    eliminate its contractual obligations with
using the services of a mediator paid for by
                                                    its unions.       That waiver also was
American. When those negotiations failed
                                                    conditioned on American’s promise to use
to produce an agreement regarding
                                                    its “best efforts” to facilitate an agreement
seniority integration, American and its
                                                    between the two pilot’s unions regarding
pilots executed a seniority integration
                                                    seniority integration. But that promise by
agreement known as Supplement CC on
                                                    American represented an obligation merely
November 8, 2001, which called for some
                                                    to support the process of negotiation
dovetailing of TWA pilots among the
                                                    between the dueling unions in their
American pilots for seniority purposes.
                                                    attempt to reach an agreement concerning
That agreement amended Section 13 of the
                                                    a “fair and equitable” seniority integration.
original agreement between American and
                                                    It was not an obligation for American to
its pilots that otherwise would have
                                                    bargain with ALPA or the Master
governed seniority integration. Supplement
                                                    Executive Council regarding a “fair and
CC would not become effective until
                                                    equitable” seniority integration. That is
single-carrier designation and certification
                                                    what was forfeited in April 2001 when the
of a collective bargaining agent for the
                                                    seniority integration protections were
combined pilot class.

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

                                               35
informational meetings conducted by the             “[a] voluntary choice may not be
Southwest pilots’ union regarding the               withdrawn because the choice was an
terms of that Letter Agreement.                     effort to make the best of a bad situation.
                                                    Adult pilots, of sound mind and well
        In February 1994, the Southwest
                                                    aware of the consequences of their acts,
pilots’ union became the collective
                                                    must expect to keep contracts, even when
bargaining representative for the Morris
                                                    they wish they could have made better
pilots. Three months later, Morris pilots
                                                    deals.” Rakestraw v. United Airlines, Inc.,
ratified a collective bargaining agreement.
                                                    981 F.2d 1524, 1534 (7 th Cir. 1992).
On June 29, 1994, Morris pilots sued the
Southwest pilots’ union and Southwest for                               IV.
breach of the duty of fair representation
                                                           Nor would I apply the “ray of hope”
resulting from the endtailing of the Morris
                                                    doctrine to toll the accrual of the claims
pilots in the course of a seniority
                                                    that ALPA breached its duty until April
integration and failure to permit Morris
                                                    18, 2002, the date the arbitrator of the
pilots an opportunity to ratify the Letter
                                                    System Board of Adjustment denied the
Agreement. But the Court found that the
                                                    Class’ challenge based on American’s
language of the Southwest-Mo rris
                                                    “best efforts” promise. See Childs v.
collective bargaining agreement was
                                                    Penn. Fed’n Brotherhood of Maintenance
sufficiently clear to inform M orris pilots
                                                    Way Employees, 831 F.2d 429, 434 (3d
that ratification of it necessarily ratified
                                                    Cir. 1987) (holding that duty of fair
the effect of the Letter of Agreement
                                                    representation claim does not accrue while
between the Southwest pilots union and
                                                    the union continues to actively represent
Southwest regarding seniority integration.
                                                    the employee and offers rays of hope that
        Likewise, as the comments of TWA            the employee’s cause will prevail). The
Master Executive Council President                  Class contends, and the majority accepted,
Robert Pastore to the entire pilot group            that ALPA’s arbitration of American’s
reveal, the TWA M aster Executive                   alleged breach of its “best efforts” letter
Council took the best option available –            necessarily impacted the viability of
agreeing to the waiver to facilitate the            Supplement CC, which could have
purchase of TWA by American and to                  resulted in the invalidation of Supplement
save as many contractual provisions as              CC.
possible while still having to negotiate
                                                           The fundamental flaw in the
seniority integration with the American
                                                    majority’s application of the Childs “ray of
pilots’ union during the transition period.
                                                    hope” doctrine is its reliance on the
This, when coupled with the language of
                                                    premise that Supplement CC was not the
the various agreements (as discussed supra
                                                    inescapable result of the waiver of the
at part III.A), supports the conclusion that
                                                    seniority integration protections in April of
there was a clear and unmistakable waiver
                                                    2001. “Rays of hope” cannot sustain a
of the right to bargain for seniority. But

                                               36
claim when the waiver of seniority                   Childs recognized that “[i]f the union can
integration protections gutted any chance            indeed remedy the cause of the employee’s
that ALPA could continue to represent the            dissatisfaction, it should be allowed to do
Class to reach a more advantageous                   so, thus obviating federal judicial
seniority integration agreement. For the             involvement.” Childs, 831 F.2d at 434;
reasons stated previously, the waiver of             see also Whittle v. Local 6 41,
seniority integration protections, and the           International Brotherhood of Teamsters,
attendant agreements executed in early               Chauffeurs, Warehousemen and Helpers of
April 2001, eliminated both contractual              America, AFL-CIO, 59 F.3d 487 (3d Cir.
and any statutory duties to bargain for              1995).
seniority thereafter. In other words, it
                                                             Childs and Whittle both dealt with
stripped ALPA of any real negotiating
                                                     claims to overturn unfavorable arbitration
strength or bargaining leverage with
                                                     awards on grounds that the union
respect to the seniority integration of
                                                     committed errors in the arbitration
former TWA pilots within American.
                                                     proceedings. In Childs, the union declined
Moreover, even if ALPA prevailed in the
                                                     to represent Childs before the Board due to
arbitration concerning the “best efforts”
                                                     a lack of corroborative evidence which
letter, and American was found to have
                                                     Childs claimed to have provided to the
breached its “best efforts” promise, it still
                                                     Union during the grievance process. In
would not eliminate the fact that the
                                                     Whittle, the union allegedly failed to
Transition Agreement between ALPA and
                                                     prosecute a seniority case vigorously
TWA, LLC was not amendable and
                                                     before the joint local committee. Those
precluded negotiations with TWA, LLC
                                                     decisions are premised upon the policy to
concerning seniority integration. Nor
                                                     resolve disputes where possible through
would a victory require American to
                                                     arbitration, thus obviating the need for
bargain with ALPA concerning seniority
                                                     judicial involvement if the union is able to
integration. In order for a “ray of hope” to
                                                     remedy the cause to the employees’
exist, there must be a meaningful hope that
                                                     satisfaction. See Childs, 831 F.2d at 434.
i t c a n r e m ed y t h e e m p l o ye e ’s
                                                     The claims in those cases therefore did not
dissatisfaction.
                                                     accrue for statute of limitations purposes
        Childs was premised on promoting             until the employee learned of the
the federal labor policies of: (1) avoiding          arbitrator’s award. Otherwise, there was
unnecessary federal litigation; (2) allowing         no way for employees to know whether
full play of the administrative procedure;           they suffered any loss from the union’s
and (3) sparing the employee the Hobson’s            alleged breach until the arbitration
choice between letting the statute of                decision issued. Whittle, 56 F.3d at 490.
limitations run and antagonizing his best
                                                           Here, however, the cause of the
advocate. 831 F.2d 434-35, 436. As to
                                                     employee’s dissatisfaction was not
avoiding unnecessary federal litigation,
                                                     American’s breach of its “best efforts”

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




                                               38
