Wells v. Southern Airways, Inc., 77-2996

• Decision Date: 28 April 1980
• Docket Number: No. 77-2996,77-2996
• Parties: 104 L.R.R.M. (BNA) 2338, 88 Lab.Cas. P 12,014 Ralph WELLS, Plaintiff-Appellee Appellant, v. SOUTHERN AIRWAYS, INC., Defendant-Appellee, Air Line Pilots Association, International, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 107

616 F.2d 107

104 L.R.R.M. (BNA) 2338, 88 Lab.Cas. P 12,014

Ralph WELLS, Plaintiff-Appellee Appellant, v. SOUTHERN AIRWAYS, INC., Defendant-Appellee, Air Line Pilots Association, International, Defendant-Appellant.

No. 77-2996.

United States Court of Appeals, Fifth Circuit.

April 28, 1980.

J. R. Goldthwaite, Jr., Atlanta, Ga., Michael E. Abram, Robert S. Savelson, New York City, for Air Line Pilots Ass'n.

William M. Pate, Atlanta, Ga., for Ralph Wells.

Erle Phillips, Robert W. Ashmore, Atlanta, Ga., for Southern Airways, Inc.

Appeals from the United States District Court for the Northern District of Georgia.

Before BROWN, HILL and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

Ralph Wells, Plaintiff below, is a former pilot for Southern Airways, Inc. (Southern), employed by them from June 1960 until his discharge in 1969. The Air Line Pilots Association International (ALPA) is a labor organization representing airline pilots, under the Railway Labor Act, on almost all United States airlines, including Southern. Although ALPA is Wells' authorized bargaining representative, Wells has never been a member of ALPA, and in fact Wells worked as a pilot for Southern for the duration of an ALPA-sanctioned pilots' strike against the airline between 1960 and 1962. Wells was discharged by Southern in February 1969, based on written charges of pilot incompetence. He filed a grievance and retained his own counsel, never making a request to ALPA for assistance. In accordance with the collective bargaining agreement between Southern and ALPA, Wells presented his grievance to a five-person System Board of Adjustment. The Board found that Southern's termination of Wells was justified, and on April 6, 1970, Wells challenged this determination in district court. The court upheld Wells' claim that the Board procedure denied him due process, and ordered another hearing.

On appeal, this court reversed, Wells v. Southern Airways, Inc., 517 F.2d 132 (5th Cir. 1975). Wells' federal court action, however, had alleged not only that he was unjustly terminated by the airline, but also that ALPA had breached the duty of fair representation it owed him. Under the rule of Czosek v. O'Mara, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970), that claim is wholly outside the jurisdiction of a System Board of Adjustment. Therefore, the panel's determination that the System Board hearing comported with due process, and was therefore final and binding on all parties, did not necessarily resolve Wells' distinct claim against the union, although obviously the issues raised by the claim against the airline and those raised by the claim against the union were intertwined. Accordingly, the panel modified its order, and remanded the case to the district court to permit Wells to present his claim against the union for breach of the duty of fair representation, Wells v. Southern Airways, Inc., 522 F.2d 707 (5th Cir. 1975). On remand, Wells rested upon the pleadings and record adduced in the former trial. The district court, relying on the intervening decision by the Supreme Court in Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976), ruled that the failure of ALPA to designate as its representatives on the System Board of Adjustment arbitrating Wells' grievance persons who were not "institutionally" hostile to Wells amounted to a breach of ALPA's duty of fair representation, proximately causing Wells' termination, and awarded Wells $365,500 compensatory damages and $150,000 punitive damages. ¹

Wells makes two distinct breach of the duty of fair representation claims. The first is that ALPA wrongfully brought about his discharge. His second claim is that the union breached its statutory duty to him when it appointed as the union designees to the System Board two members of ALPA who had participated in the pilots' strike of 1960-62. Both claims involve Wells' contention that ALPA is "institutionally" hostile to him because of his activities as a strikebreaker during the 1960-1962 pilots' strike.

Wells' first claim can be disposed of summarily. To prevail on any claim asserting a breach of the union's statutory duty of fair representation, a plaintiff must demonstrate that the union's conduct towards him is arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967); Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964); Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953). In this case, however, Wells' alleged incompetence was brought to light by individual members of the union, and there is absolutely no evidence in the record to suggest any specific plan or concerted activity on the part of the union to generate those complaints. In fact, it appears that Wells himself reported the first safety violation that played a major part in his discharge, his take-off overweight from the Tallahassee Airport on January 28, 1969. On January 31, a Southern employee assigned to fly as Wells' co-pilot, adverting to the Tallahassee incident and to other occurrences in Wells' past, declined to accept the assignment except under written protest. Southern's Chief Pilot determined that the better course was to take the flight himself and to administer during the flight a routine test of Wells' ability. Normally these checks, called "line checks," are administered at six-month intervals. Southern's Vice President for Flight Operations testified, however, that a special line check would normally be administered following a report of an incident like the overweight Tallahassee take-off. The Chief Pilot considered that Wells' performance on the specially scheduled line check was deficient, and as a consequence of that negative evaluation Wells was required to undergo a special proficiency check on February 4 conducted by Southern's Vice President for Flight Operations. Wells' performance on the proficiency check was also characterized as unsatisfactory, and therefore he was removed from duty as a line pilot. Thereafter, taking into...