Fry v. Airline Pilots Ass'n, Intern., s. 94-1509

• Citation: 88 F.3d 831
• Decision Date: 28 June 1996
• Docket Number: 94-1523,Nos. 94-1509,s. 94-1509
• Parties: 152 L.R.R.M. (BNA) 2754, 132 Lab.Cas. P 11,625 William E. FRY, Richard B. Gifford, Thomas C. Gipson, Edwin C. Hart, Jr., Jeffrey J. Hill, William H. Palmer, Pierre W. Pippert, David C. Halverson, Leah Fry, Nancy Galios, Ginger Gipson, Birgitta Hill, Sharon Palmer, Kay Halverson, Stephen E. Galios, Plaintiffs-Appellants/Cross-Appellees, v. AIRLINE PILOTS ASSOCIATION, INTERNATIONAL, a labor organization; Airline Pilots Association, Master Executive Counsel For United Airlines, Defendants-Appellees/Cross-Appellants and United Airlines, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 831

88 F.3d 831

152 L.R.R.M. (BNA) 2754, 132 Lab.Cas. P 11,625

William E. FRY, Richard B. Gifford, Thomas C. Gipson, Edwin C. Hart, Jr., Jeffrey J. Hill, William H. Palmer, Pierre W Pippert, David C. Halverson, Leah Fry, Nancy Galios, Ginger Gipson, Birgitta Hill, Sharon Palmer, Kay Halverson, Stephen E. Galios, Plaintiffs-Appellants/Cross-Appellees, v. AIRLINE PILOTS ASSOCIATION, INTERNATIONAL, a labor organization; Airline Pilots Association, Master Executive Counsel For United Airlines Defendants-Appellees/Cross-Appellants and United Airlines, Inc., Defendant-Appellee.

Nos. 94-1509, 94-1523.

United States Court of Appeals Tenth Circuit.

June 28, 1996.

Rehearing Denied Aug. 22, 1996.

Gregory D. Barton (Murray Ogborn with him on the briefs), Harding & Ogborn, Lincoln, Nebraska, for Plaintiffs-Appellants/Cross-Appellees.

Stephen P. Berzon of Altshuler, Berzon, Nussbaum, Berzon & Rubin, San Francisco, California (Gary Green and Jonathan A. Cohen, Air Line Pilots Association, Legal Department, Washington, D.C.; Andrew W. Loewi and Robert Troyer of Brownstein, Hyatt, Farber & Strickland, Denver, Colorado; and Jeffrey B. Demain of Altshuler, Berzon, Nussbaum, Berzon & Rubin, San Francisco, California, with him on the briefs), for Defendants-Appellees/Cross-Appellants.

Robert A. Siegel (Victoria D. Stratman and Michael G. McGuinness with him on the brief), of O'Melveny & Myers, Los Angeles, California, for Defendant-Appellee, United Airlines, Inc.

Before ANDERSON, and McWILLIAMS, Circuit Judges, and HOLMES, ^* District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

INTRODUCTION

Plaintiffs/appellants, nine nonstriking pilots for United Airlines and six of their wives, brought suit against United and the Airline Pilots Association ("ALPA") ¹ based on post-strike harassment of the nonstriking pilots. The district court granted United's summary judgment motion on all claims because the claims were either preempted by the Railway Labor Act ("RLA"), 45 U.S.C. §§ 151-163, 181-188, or barred by the exclusive remedy provision of the Colorado Worker's Compensation Act, Colo.Rev.Stat. §§ 8-40-101 to 8-47-209. The court also granted ALPA's motion for summary judgment on all but three claims--the plaintiffs' claim for intentional infliction of emotional distress and the derivative claims for loss of consortium and punitive damages ("emotional distress claims")--on RLA preemption grounds and denied ALPA's motion as to the emotional distress claims.

The plaintiffs appeal the grant of summary judgment on all of their claims against United and the grant of summary judgment on all but the emotional distress claims against ALPA. We affirm. ALPA cross-appeals, pursuant to 28 U.S.C. § 1292(b), the district court's denial of its summary judgment motion on the emotional distress claims. ALPA argues, among other things, that the district court analyzed the plaintiffs' evidence using improper legal assumptions, and, when viewed properly, the plaintiffs have not presented sufficient evidence to survive summary judgment. We agree, and accordingly vacate and remand this case to the district court with instructions to grant ALPA's summary judgment motion on the remaining claims.

BACKGROUND

On May 17, 1985, ALPA declared a strike against United that lasted twenty-nine days. The strike began to appear imminent months before, so in an effort to mitigate the disruption of a strike, United began to seek replacement pilots who had been trained on equipment flown by United. United also actively recruited union pilots to cross the picket line and promised to protect and "never forsake" these "working" pilots. At the end of the strike, United and ALPA negotiated and signed a Back-to-Work Agreement ("BWA") which prohibited either side from engaging in any reprisals or recriminations. United Suppl. App. Vol. VI at 1618; see, e.g., Appellants' App. Vol. VII at 1990-91. Nevertheless, the plaintiffs and their families were subjected to continuous harassment and intimidation by ALPA members. United initially attempted to protect the working pilots through various protective measures and strong statements against those perpetrating the "campaign of violence." See, e.g., Appellants' App. Vol. VI at 1801-03; United Suppl. App. Vol. III at 705-07, 779-81; id. Vol. IV at 1187-90; id. Vol. V at 1296-97, 1467-68, 1473-76; id. Vol. XI at 3074-76. The plaintiffs contend, however, that within two years of the strike, roughly coinciding with Richard Ferris' resignation as United's CEO, United began acquiescing in ALPA's alleged persecutions in order to appease the pilot union. ²

On February 2, 1992, nine current and former United working pilots and six of their wives filed their third amended complaint alleging eleven claims for relief based on the post-strike harassment. ³ United and ALPA filed separate answers and subsequently filed separate motions for summary judgment.

On June 14, 1994, Magistrate Judge Bruce D. Pringle filed his recommendation in favor of granting summary judgment for United on all claims and for ALPA on all claims, based on RLA preemption, except the plaintiffs' emotional distress claims. On June 27, 1994, the plaintiffs objected to the recommendation, partly based on a Supreme Court decision, Hawaiian Airlines, Inc. v. Norris, --- U.S. ----, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994), decided on June 20, 1994, subsequent to the issuance of the magistrate judge's recommendation. They contended that Norris narrowed the scope of RLA preemption and thus supported their position that their claims were not preempted. The district court sent the case back to the magistrate judge for reconsideration in light of Norris. The magistrate judge affirmed his prior recommendation noting that he relied on the standard in Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), as the rule for preemption under the RLA, which was the standard

                expressly adopted in Norris.   He also reiterated that the claims required interpretation of several collective bargaining agreements ("CBAs").   The district court adopted the magistrate judge's recommendation in an order dated September 16, 1994.   We review the district court's granting of summary judgment and the district court's RLA preemption determination de novo.  TPLC, Inc. v. United Nat'l Ins. Co., 44 F.3d 1484, 1489 (10th Cir.1995);  see Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 214, 216, 105 S.Ct. 1904, 1912-13, 1913-14, 85 L.Ed.2d 206 (1985);  Albertson's, Inc. v. Carrigan, 982 F.2d 1478, 1481-82 (10th Cir.1993)
                

DISCUSSION

I. The Railway Labor Act.

Congress enacted the RLA in 1926 to prevent strikes in vital transportation industries by providing a comprehensive framework for resolving labor disputes. The RLA establishes an arbitral remedy for the resolution of "disputes between an employee ... and a carrier ... growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions." 45 U.S.C. §§ 153 First (i) & 184. The Supreme Court has determined that the National Railroad Adjustment Board has exclusive jurisdiction over "minor" disputes. Union Pacific R.R. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 402-03, 58 L.Ed.2d 354 (1978); Andrews v. Louisville & Nashville R.R., 406 U.S. 320, 321-22, 92 S.Ct. 1562, 1563-64, 32 L.Ed.2d 95 (1972). ⁴ Norris further defines minor disputes as disputes arising over duties "rooted firmly in the collective-bargaining agreement" so that " 'any attempt to assess liability here inevitably will involve [labor] contract interpretation,' " Norris, --- U.S. at ---- - ----, 114 S.Ct. at 2247-48 (quoting Allis-Chalmers, 471 U.S. at 218, 105 S.Ct. at 1914-15), or as disputes that are dependent on the interpretation of CBAs. Id. at ----, 114 S.Ct. at 2249 (citing Lingle ).

The Court's ruling in Norris did not change the fundamental fact that employment related "minor disputes" will continue to be subject to the exclusive and mandatory jurisdiction of system boards of adjustment. Nor did Norris necessarily narrow the scope of federal preemption under the RLA as the plaintiffs contend. ⁵ Norris expressly adopted the Lingle standard (used for determining § 301 of the Labor Management Relations Act (" § 301") preemption claims) for resolving claims of RLA preemption. As indicated above, that standard requires preemption whenever a claim's resolution calls for interpretation of a CBA. This court had already applied the Lingle standard to RLA cases in Davies v. American Airlines, Inc., 971 F.2d 463, 466-67 (10th Cir.1992), cert. denied, 508 U.S. 950, 113 S.Ct. 2439, 124 L.Ed.2d 657 (1993), and the magistrate and district court judges properly employed that Under both Norris and Lingle, the threshold question remains whether resolution of the federal and state law claims of the plaintiffs requires interpretation or application of the CBAs. Norris, --- U.S. at ----, 114 S.Ct. at 2247; Lingle, 486 U.S. at 405-06, 108 S.Ct. at 1881-82. Norris also confirmed labor law's longstanding recognition that a CBA is more than the sum of its parts. It comprises express provisions, industry standards, and "norm[s] that the parties have created but have omitted from the collective bargaining agreement's explicit language." Norris, --- U.S. at ----, 114 S.Ct. at 2250; see also Allis-Chalmers, 471 U.S. at 215-16, 105 S.Ct. at 1913-14 (CBAs may contain implied as well as express terms); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578-79, 80 S.Ct. 1347, 1350-51, 4 L.Ed.2d 1409 (1960) (CBAs are intended to cover the entire employment relationship). Thus, plaintiffs' claims are minor disputes if they depend not only on a right found in the CBAs, but also if they implicate practices, procedures, implied authority, or codes of conduct that are part of the working relationship.

standard in the instant case. ⁶

Preemption of minor disputes under the RLA or § 301...