Acree v. Air Line Pilots Association

• Decision Date: 13 February 1968
• Docket Number: No. 24626.,24626.
• Citation: 390 F.2d 199
• Parties: John A. ACREE et al., Appellants, v. AIR LINE PILOTS ASSOCIATION et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

390 F.2d 199 (1968)

John A. ACREE et al., Appellants, v. AIR LINE PILOTS ASSOCIATION et al., Appellees.

No. 24626.

United States Court of Appeals Fifth Circuit.

February 13, 1968.

Thomas L. Carter, Jr., Gilbert & Carter, Atlanta, Ga., for appellants.

Henry Weiss, Herbert A. Levy, New York City, for Air Line Pilots Assn.

J. R. Goldthwaite, Jr., Atlanta, Ga., W. Glen Harlan, New York City, Charles A. Moye, Jr., Atlanta, Ga., for Eastern Air Lines, Inc.

Before BROWN, Chief Judge, and GEWIN and WRIGHT,^* Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

On June 23, 1962, the employees of Eastern Air Lines represented by the Flight Engineers International Association (FEIA) went on strike over the question of representation of cockpit personnel, a problem which has plagued the airlines industry since the advent of jet aircraft. In essence the dispute was a jurisdictional one between rival unions, FEIA and the Air Line Pilots Association (ALPA). The history and outcome of the dispute has been fully set out elsewhere,¹ and need not be repeated here. In the end, ALPA prevailed and in 1964 was certified by the National Mediation Board as the bargaining agent for Eastern's flight engineers. In the meantime the striking FEIA members had been replaced.

This suit is but the latest effort in an extended series of unsuccessful administrative and judicial proceedings which FEIA has brought against Eastern and ALPA charging a conspiracy between them to force FEIA members to go on strike and lose their jobs.² But unlike its predecessors, which were brought in the name of the union, the present litigation is a class action brought in the names of appellants individually and as representatives of all permanently replaced flight engineers who struck Eastern on June 23, 1962. The claim here is for reinstatement by Eastern and $29,090,100 damages against ALPA. The District Court dismissed the complaint for lack of subject matter jurisdiction and, alternatively, as barred by res judicata. We find the claim barred by res judicata, consequently we do not reach the other basis for dismissal below.

In our judgment the Second Circuit's decision in Flight Engineers Int. Ass'n, EAL Chapter v. Eastern Air Lines, Inc., 359 F.2d 303 (1966), which affirmed the District Court's grant of summary judgment in favor of Eastern and ALPA for "lack of jurisdiction over the subject matter," adjudicated the same claims which appellants now seek to raise before this court. Since, in our view, the suit is also between the same parties and seeks the same remedies, principles of res judicata foreclose our consideration of these claims. The questions whether the two suits involve the same parties or their privies and the same cause of action are but two sides of the same coin. Nevertheless we shall try to analyze them as separate issues.

Same Cause of Action.

Stripped of nonessential allegations, the original complaint and the amended complaint in this case allege a conspiracy between ALPA and Eastern to force FEIA to strike so that ALPA members could take the flight engineers' jobs. In the amended complaint the charge of conspiracy as to Eastern was tempered to some extent, but the allegations of wrongdoing and bad faith remain essentially the same. These are the same allegations of wrongdoing which appellants made in their complaint before the Second Circuit. Paragraph 51 of the complaint there alleged that

"the unlawful refusal of Eastern to reinstate the Flight Engineers to their employment has caused plaintiff and the members represented by it, damage in the amount of $11,500,000 for back wages and other fringe benefits."

Paragraphs 52, 57, 58 and 63 charged that Eastern and ALPA provoked appellants to strike for the purpose of obtaining their jobs. Paragraph 56 charged a conspiracy between Eastern and ALPA to confer appellants' jobs on ALPA pilots. The New York complaint also prayed for the same remedies sought here:

"(4) Issue a mandatory injunction against Eastern ordering and directing it to offer to the striking flight engineers reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and ordering and directing Eastern to dismiss, if necessary, any employees hired to replace the striking Flight Engineers * * *."

And, as in the suit here, it asked for huge damages covering back pay and fringe benefits.

Thus the cause of action relied on in the Second Circuit litigation and the one here are identical. The remedy requested is also identical. True the identical words have not been used. The complaints were prepared by different lawyers. But essentially they are the same. What difference exists is in form, and we have long held that in determining res judicata it is the substance of the action that counts. "What is important and determinative now as to the identity of causes of action, is not identity of form, but of grounds." Wilson Cypress Co. v. Atlantic Coast Line R. Co., 5 Cir., 109 F.2d 623, 627, cert. denied, 310 U.S. 653, 60 S.Ct. 1101, 84 L. Ed. 1418 (1940).

In deciding whether the substances of two actions are for res judicata purposes the same, various tests have been advanced: Is the same right infringed by the same wrong? Would a different judgment obtained in the second action impair rights under the first judgment? Would the same evidence sustain both judgments? See 1B J. W. Moore, Federal Practice ¶ 0.4101, pp. 1157-1158 (2d ed. 1965), and cases there cited. Under any of these tests the cause of action in suit here is identical with the cause of action alleged in the New York complaint. There may be some difference in the legal theory supporting the actions, but the substance, for res judicata purposes at least, is the same. See Norman Tobacco & Candy Co. v. Gillette Safety Razor Co., 5 Cir., 295 F.2d 362 (1961).

Appellants deny that the cause of action here was included in the Second Circuit litigation, arguing that "the second New York proceeding rested wholly upon a cause of action asserting institutional, or recognitional, claims by the plaintiff union there, FEIA as a statutory collective bargaining organization; and that, that said proceeding in no way presented plaintiffs' individual rights, asserted here, against ALPA's hostile and invidious discrimination against plaintiffs individually — not FEIA, and abuse by ALPA of its statutory bargaining franchise and power." (Emphasis in appellants' brief.)

It may be true that the New York proceeding covered institutional claims by FEIA as a collective bargaining agent, but the Second Circuit treated it as also including, as it obviously did, individual claims for reinstatement of its members and back pay. Certainly those claims are the same claims being made here, and the alleged bases for those claims are identical with the bases alleged in the New York proceeding. Under the plain allegations of the two complaints, other than Chinese copies it would be difficult indeed to find causes of action and claims for relief more similar than those asserted in the New York action and those asserted here.

The Same Parties or Their Privies.

In all the prior proceedings the plaintiff was FEIA, an unincorporated association, suing for itself and its members who lost their jobs at Eastern, whereas this is a class action with appellants, members of FEIA, suing individually and for the other members of FEIA who lost their jobs. Thus in effect we have two class actions and the members of the classes are identical. Or as the District Court here held: "In sum, the FEIA was composed of the class which plaintiffs seek to represent; as an unincorporated association, it was no more nor no less than the class itself."

Indeed, even if the second action were not a class action, the individuals actually represented by FEIA would be bound by the first action to the extent their interests were there represented. Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673 (1921); System Federation No. 91 v. Reed, 6 Cir., 180 F.2d 991 (1950); Ingersoll v. Brotherhood of Locomotive Engineers, N.D. Ohio, 192 F.Supp. 669 (196...