Leroy Bensel, individually v. Allied Pilots Association

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 03-3176
LEROY BENSEL, individually and
as representative of a class consisting
of former Trans World Airlines, Inc.,
pilots employed by TWA Airlines LLC
as of April 2001,
Appellant
v.
ALLIED PILOTS ASSOCIATION;
TWA AIRLINES, LLC;
AIR LINE PILOTS ASSOCIATION;
AMERICAN AIRLINES, INC.
On Appeal From the United States
District Court for the District
of New Jersey
(D.C. Civil No. 02-cv-02917)
District Judge: Hon. Joseph E. Irenas
Argued July 12, 2004
BEFORE: RENDELL, FISHER and
VAN ANTWERPEN, Circuit Judges
(Filed October 26, 2004)
Jerald R. Cureton, Esq. (Argued)
H. Thomas Hunt, III, Esq.
Anthony Valenti, Esq.
Tara Ann Mosier, Esq.
Cureton Caplan
950B Chester Avenue
Delran, NJ 08075
Counsel for Appellant
Steven K. Hoffman, Esq. (Argued)
Edgar N. James, Esq.
James & Hoffman
1101 17th Street, N.W.
Suite 510
Washington, DC 20036
James Katz, Esq.
Jennings Sigmond
1040 North Kings Highway
Suite 300
Cherry Hill, NJ 08034
Counsel for Appellee Allied
Pilots Association
Donald L. Havermann, Esq. (Argued)
Harry Rissetto, Esq.
Morgan, Lewis & Bockius
1111 Pennsylvania Avenue, N.W.
Washington, DC 20004
Alfred J. Lechner, Jr., Esq.
Joseph A. Piesco, Jr., Esq.
Morgan, Lewis & Bockius
502 Carnegie Center
Princeton, NJ 08540
Counsel for Appellees
TWA Airlines, LLC and
American Airlines, Inc.

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

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Executive Council (“TWA M EC”) unit.1
Under American’s collective bargaining
agreement with its pilots, represented by
Defendant-Appellee All i e d Pilots
Association (“APA”), the seniority of any
new pilots who began working for
American, as a result of an acquisition by
American, would begin to accrue only at
the moment that the pilots began working
for American.
The Waiver Agreement
The TWA MEC resisted waiving its
seniority protection provisions, and on
March 15, 2001, TWA filed a motion
under 11 U.S.C. § 1113 with the
Bankruptcy Court seeking to abrogate the
provisions in its collective bargaining
agreement with ALPA. In response, on
April 2, 2001, the TWA MEC passed a
resolution waiving its seniority protection
provisions in exchange for a letter from
American in which American promised to
“use its reasonable best efforts” with APA
to “secure a fair and equitable process for
the integration of seniority” and to adopt
the procedures that result from facilitated
meetings between APA and ALPA.
Significantly, any seniority integration
agreement reached between APA and
ALPA was to be presented to American as
a proposed modification of the collective
bargaining agreement between American
and APA. On April 6, 2001, the
Bankruptcy Court entered a stipulation and
order withdrawing the section 1113 motion
and formalizing the waiver agreement.2
The ALPA / TWA-LLC
Transition Agreement
On April 9, 2001, ALPA and the
TWA MEC entered into a transition
agreement with TWA-LLC. Upon
completion of the asset purchase by
American, TWA-LLC would become a
wholly owned subsidiary of American.
Under that transition agreement, the
majority of the provisions of the collective
bargaining agreement between ALPA and
TWA would remain in effect until such
time as the National Mediation Board
(“NMB”) adjudicated TWA-LLC and
American as a “single carrier” and
extended APA’s certification to cover the
TWA-LLC pilots (comprising the Class).
The transition agreement incorporated by
reference American’s promise to use its
reasonable best efforts to ensure a fair
seniority integration process. In addition,
ALPA would continue to remain the
exclusive representative of the TWA-LLC
pilots until the NMB made the appropriate
declarations. The next day, on April 10,
2001, American’s purchase of TWA’s
1Some members of the class of
Plaintiffs in this case were also members
of the TWA MEC.
2There is a great deal of uncertainty as
to what the result might have been if
American had gone through with its
purchase of the TWA assets without
ALPA waiving its seniority integration
protections. Of course, it was precisely
this uncertainty that most likely influenced
American to request the waiver by ALPA.

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

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

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

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

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

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

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

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

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12
perfectly lawful on the face
of things, and an unfair
labor practice cannot be
made out except by reliance
o n t h e fa c t o f t h e
a g r e e m e n t ’ s o r i g i n a l
unlawful execution, an event
w h i c h , b e c a u s e o f
limitations, cannot itself be
made the subject of an
u n f a ir l a b o r p r a c t i c e
complaint, . . . permitting
resort to the principle that §
10(b) is not a rule of
evidence, in order to convert
what is otherwise legal into
something illegal, would
v i t i a t e t h e p o l i c i e s
underlying that section. 362
U.S. at 419 (emphasis
added). This reasoning
applies to bar Appellants’
claims in the instant suit
only if one accepts the
p r o p o s i ti o n t h a t t h e
limitations period associated
with ALPA’s initial breach
accrued on April 6, 2001,
and the subsequent alleged
b r e a c h e s a r e a l l
“inescapably grounded,”
362 U.S. at 422, in the
initial breach. Because
Supplement CC was not the
inevitable result of the
w ai v e r a g r e eme nt, a s
described in connection with
our “rays of hope” analysis,
and because the subsequent
f a i r r e p r e s e n t a t i o n
a l l eg a t i o n s c o n s t it u t e
breaches independent of the
initial waiver agreement,
this argum ent is not
compelling.
In any event, ALPA contends that
any challenge brought regardin g
Supplement CC accrued no later than
November 8, 2001, the date of its
execution. Again, the cases relied upon by
ALPA in support of this view are
materially distinguishable. In each case,
the union being sued was the union that
entered into the challenged agreement. As
such, the employees pressing duty of fair
representation claims against the union
were already bound by the agreement in
issue at the time that agreement was either
entered into or ratified. Those plaintiffs
suffered a definitive injury upon the date
of execution or ratification. See United
Indep. Flight Officers v. United Air Lines,
Inc., 756 F.2d 1262 (7th Cir. 1985) (initial
injury occurred when the union failed to
reach an agreement with employer and a
subsequent injury occurred when the
agreement was signed); Gvozdenovic v.
United Air Lines, Inc., 933 F.2d 1100 (2d
Cir.) (incoming flight attendants were
already employed, members of the union,
and thus bound as of the date offending
agreement was ratified), cert. denied, 502
U.S. 910, 112 S.Ct. 305, 116 L.Ed.2d 248
(1991). Significantly, Gvozdenovic found
that the statute of limitations ran not from
when the agreement was entered into, but
from when it was ratified (and presumably
effective). 933 F.2d at 1106. In contrast,
although Supplement CC was executed on

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13
November 8, 2001, it did not purport to
bind the Class until its conditions
subsequent were satisfied. This occurred
on April 3, 2002, when the NMB certified
APA as the bargaining representative for
the Class. Indeed, the actions that the
Class asserts ALPA failed to pursue in
violation of its duty of fair representation
may have invalidated Supplement CC or
prevented its application to the Class.
3. Relation Back
Given our determination that the
Class’ claims against ALPA accrued on
April 18, 2002, Appellants’ claims are
timely filed. Appellants initiated a class
action against ALPA on September 3,
2002, within the prescribed six-month
limitations period. ALPA counters that,
with the sole exception of allegedly
coercing the Class into waiving the
Allegheny-Mohawk provisions, th e
additional purported breaches of its fair
representation duty are time-barred
nonetheless because they were not alleged
until the Class’s Second Amended
Restated Complaint, filed on January 27,
2003. This is approximately nine months
following accrual of the Class’s breach
claims. As explained below, ALPA’s
argument is unavailing because the breach
claims specifically enumerated in the
Second Amended Restated Complaint
relate back to Appellants’ original
Complaint pursuant to Fed. R. Civ. P.
15(c)(2).
Fed. R. Civ. P. 15(c) provides:
(c) Relation Back of
A m e n d m e n t s . A n
amendment of a pleading
relates back to the date of
the original pleading when
. . . .
(2) the claim or defense
asserted in the amended
pleading arose out of the
conduct, transaction, or
occurrence set forth or
attempted to be set forth in
the original pleading.In
accordance with the general
t h e o r y o f li b e ra l i ze d
pleading in the federal
system, Rule 15(c) is
premised on the notion that
a party is not entitled to the
protection of the statute of
limitations based upon the
l a t e r a s s e r t i o n b y
amendment of a claim or
defense that arises out of the
same conduct, transaction,
or occurrence set forth in the
t i m e l y f i l e d o r i g in a l
pleading. 6A Wright, Miller
& Kane, Federal Practice &
Procedure § 1496 (2d ed.
1990). Thus, amendments
that restate the original
c l a i m w i t h g r e a t e r
particularity or amplify the
f a c t u a l c i rc u m st a n c es
surrounding the pertinent
conduct, transaction or
occurrence in the preceding
pleading fall within Rule
15(c). See, e.g., Clipper
Exxpress v. Rocky Mt.

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14
Motor Tariff Bureau, Inc.,
690 F.2d 1240, 1259 n.29
(9th Cir.), cert. denied, 459
U.S. 1227, 103 S.Ct. 1234,
75 L.Ed.2d 468 (1982). In
essence, application of Rule
15(c) involves a search for a
common core of operative
facts in the two pleadings.
As such, the court looks to
whether the opposing party
has had fair notice of the
general fact situation and
legal theory upon which the
amending party proceeds.
See, e.g., Michelsen v.
Penney, 135 F.2d 409, 416-
17 (2d Cir. 1943) (“[T]he
original complaint clearly
gave defendant notice that
he would be held for all acts
of negligence . . . .
[D]efendant was bound to
realize that he would be held
for every possible act of
mismanagement.”). It is
clear that the Class’ Second
A m e n d e d R e s t a t e d
Complaint merely expounds
upon and further details the
factual scenario and breach
claims that were roughly
sketched in its original
Complaint. The original
Complaint outlines in broad
t e r m s t h e e v e n t s
surrounding the Asset
Purchase Agreement, the
waiver agreement, the best
e f f o r t s p r o m i s e , t h e
f a c i li t a te d d i s c u s si o ns
between ALPA and APA,
the arbitration proceeding
brought by ALPA, and the
n e g o t i a t i o n a n d
i m p l e m e n t a t i o n o f
Supplement CC. The Class’
breach allegations focus on
ALPA’s coercive role in
forcing the Class to waive
i t s l a b o r p r o t e c t i v e
provisions, but further
charge ALPA with breach
generally. These allegations
are painted with a broad
brush, and can easily be read
to encompass the more
particularized claims that
appear in the Second
A m e n d e d R e s t a t e d
Complaint. For example,
the original Co mplaint
b r o a d l y a v e r s t h a t
Appellants’ claims stem
from ALPA’s actions in
causing the class to lose its
seniority rights. By virtue
of the series of events
drafted in the original
Complaint, ALPA was
unquestionably on notice
that it would be held liable
for every possible breach of
its fair representation duty
occasioned by the outlined
facts. The additional
p u r p o r t e d b r e a c h e s
particularized in the Second
A m e n d e d R e s t a t e d
Complaint derive directly

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

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16
Next, the District Court determined
that ALPA’s alleged failure to challenge
Supplement CC following its approval on
November 8, 2001 failed to state a claim
for relief. Specifically, the District Court
found there to be no duty of fair
representation right of one union to
challenge an agreement legally signed by
another union and its employer. In other
words, ALPA’s decision not to file a futile
challenge to Supplement CC cannot
legally constitute a duty of fair
representation breach. In Air Line Pilots
Ass’n v. UAL Corp., 874 F.2d 439 (7th
Cir. 1989), United’s pilots, represented by
ALPA, brought a suit against United and
United’s machinists union, complaining
that United entered into a collective
bargaining agreement with the machinists’
union to change the pilots’ terms of
employment without bargaining over the
change with the pilots. The Seventh
Circuit held that the particular disputed
provision in United’s collective agreement
with the machinists’ union violated the
Railway Labor Act. ALPA attempts to
distinguish this case by noting that it did
not involve an airline merger, and more
importantly, that it did not address the
issue of whether a carrier–American or
TWA-LLC–must bargain with a union–in
this case ALPA–that does not represent
any of its employees. It is undisputed that
in UAL Corp., the machinists and pilots
were all employees of United. This latter
distinction, however, ignores the fact that
Appellants became employees of TWA-
LLC as of April 9, 2001, and TWA-LLC
continued to exist as a wholly owned
subsidiary of American. Supplement CC
was not executed until November 8, 2001.
As such, ALPA had the right under the
RLA to negotiate with at least TWA-LLC
until March 5, 2002, when the NMB
rendered its single carrier determination,
and thereafter with American until
ALPA’s representational rights were
extinguished on April 3, 2002. Appellants
thus state a viable claim.
For the foregoing reasons, we
reverse the District Court’s opinion on
Count I of the Second Amended Restated
Complaint and remand to permit the
parties to engage in discovery. It is our
belief that at this stage of the proceedings
Plaintiffs should be given a fuller
opportunity for discovery relating to Count
I and permitted to ascertain if there is any
factual support for their claims. At this
point we ask “not whether a plaintiff will
ultimately prevail but whether the claimant
is entitled to offer evidence to support the
claims.” Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974),
overruled on other grounds, Harlow v.
Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727,
73 L.Ed.2d 396 (1982). It may be that
ALPA properly carried out its duty of fair
representation and there was nothing
ALPA could realistically accomplish under
difficult circumstances. But it is too early
to decide this issue at this point.
Count II
A. Alleged Breaches of the Duty of
Fair Representation by APA
Prior to April 3, 2002
Count II of the Second Amended
Restated Complaint asserts against APA a

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

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18
whom it does represent.” 404 U.S. at 181
n.20. Ind eed , Allie d C hemical
unequivocally held that the bargaining
agent is under no statutory duty to
represent those not members of the
bargaining unit in negotiations with the
employer. Id. Jones v. Trans World
Airlines, Inc., 495 F.2d 790 (2d Cir. 1974),
involved two separate classes of Trans
World Airlines employees--guards and
passenger relations agents--who performed
many of the same functions. 495 F.2d at
793-94. Only the guards were represented
by a union. Id. Relying on findings that
the union “insist[ed] that the passenger
relations agent jobs were in the guard unit”
and that the passenger relations agents
“had performed guard duties all along,”
the court held that the passenger relations
agents were de facto members of the guard
bargaining unit. Id. at 797. The Second
Circuit thus concluded that the union
breached its duty of fair representation by
discriminating against the passenger
relations agents based on their non-union
status. Id. at 798. This Circuit has
characterized Jones as “stand[ing] for the
limited and undisputed proposition that
discrimination against non-member
employees who are part of the bargaining
unit is impermissibly arbitrary if no
relevant distinctions exist between the
union and non-union employees.” Deboles
v. Trans World Airlines, Inc., 552 F.2d
1005 (3d Cir. 1977) (emphasis added).
Similarly, in Gvozdenovic v. United Air
Lines, Inc., 933 F.2d 1100 (2d Cir.), cert.
denied, 502 U.S. 910, 112 S.Ct. 305, 116
L.Ed.2d 248 (1991), “as of the date” the
AFA [the union representing the
incumbent flight attendants at United]
“ratified the allegedly violative [seniority]
agreement,” “the 1,202 incoming flight
attendants [from Pan American] already
had been working for United,” were
already members of the AFA, and thus
were part of the United bargaining unit to
which the AFA owed the duty of fair
representation. 933 F.2d at 1106. Bernard
v. Air Line Pilots Ass’n, 873 F.2d 213 (9th
Cir. 1989) concerned the merger of Jet
America and Alaska Airlines. Prior to the
merger, Alaska pilots were represented by
ALPA, while Jet America pilots were
unrepresented. Alaska Air Group, the
acquiring corporate parent of Alaska
Airlines, operated Jet America and Alaska
separately for several months, then
announced it would merge the carriers.
ALPA negotiated with Alaska regarding
integration of the Jet America pilots with
the Alaska pilots for purposes of seniority.
Despite repeated requests, Jet America
pilots were prohibited from partaking in
the seniority discussions both prior to and
following the effective date of merger on
October 1, 1987. An agreement between
ALPA and Alaska was not reached until
October 6, 1987. In affirming the district
court’s finding that ALPA breached of its
duty of fair representation as to the Jet
America pilots, the Ninth Circuit noted
that there was no dispute that the non-
union Jet America pilots had entered the
Alaska pilots’ bargaining unit prior to
October 6, 1987, the date the agreement
adversely affecting plaintiffs’ seniority
rights was reached between ALPA and
Alaska. 873 F.2d at 216.

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19
The parallels between this case and
that confronting the Ninth Circuit in
McNamara-Blad v. Ass’n of Professional
Flight Attendants, 275 F.3d 1165 (9th Cir.
2002) are striking. In late 1998, American
purchased 80% of Reno’s outstanding
shares and announced it would merge the
operations of the two airlines. Prior to
merger of the flight operations on August
31, 1999, APFA, the union representing
American’s flight attendants (the Reno
flight attendants were represented by
another union), reached a seniority
integration agreement with American.
This agreement endtailed all Reno flight
attendants, and was implemented as of
August 31, 1999. In affirming the district
court’s finding that, as a matter of law, the
Reno flight attendants were not in the
APFA’s bargaining unit and thus that the
APFA was not required to fairly represent
them, the Ninth Circuit explained that
“[t]he work-forces of the two merging
carrier become a single bargaining unit
only when the carriers become a ‘single
carrier’ . . . American and Reno did not
b e co m e a ‘ s i n g l e c ar r ie r ’ f or
representational purposes until August 31,
1999, after the seniority agreement
between the APFA and American was
reached.” 275 F.3d at 1170 (internal
citations omitted). The analogies between
McNamara-Blad and the instant case are
obvious.
Contrary to the Class’ assertion, the
cases discussed above indicate that it is
actual inclusion in the bargaining unit–not
“impending” inclusio n–that triggers
a tt ac h m ent of the duty of fair
representation. To the extent Howard, as
clarified by Allied Chemical is an
exception to this rule, it not implicated
here because the APA’s decision to
subordinate the seniority of most TWA-
LLC pilots was a bona fide economic
decision made to protect the interests of
American’s pilots, for whom APA did
have a statutory duty to fairly represent.
Before the NMB consolidated the TWA-
LLC pilots into the American bargaining
unit on April 3, 2002, when it certified
APA as the exclusive bargaining agent, the
pilots at American and the pilots at TWA-
LLC belonged to different bargaining
units, each with its own exclusive
bargaining representative. It is only
subsequent to April 3, 2002 that APA held
a statutory duty to the Class.
This outcome is supported from a
policy perspective. Appellants contend
that following the reasoning espoused in
McNamara-Blad will enable unions to
conspire and time events in a manner
designed to avoid duties of fair
representation that would otherwise be
owed to a group. In this case, had the
Class become employed by American (as
opposed to TWA-LLC) following closing
of the merger, APA would most probably
have been the exclusive bargaining agent
for both the Class and American’s pilots
and would have owed a statutory duty to
both groups in negotiating seniority. To
avoid a statutory duty to fairly represent
the Class, Appellants aver that APA and
American created the fiction that the two
groups of pilots were employed by
different entities (American and TWA-

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20
LLC) and that the Class was not part of the
APA bargaining unit. This fiction enabled
APA to unilaterally negotiate the Class’
seniority with American without the Class’
input. Appellants allege that Supplement
CC was intentionally entered into by APA
and American prior to APA’s petition to
extend its certification to cover the Class
to avoid the consequences of Bernard.
Nevertheless, we agree with APA that the
Class’ allegations that ALPA breached its
duties and conspired with APA to deprive
the Class of valuable rights does not justify
imposition of a fair representation duty on
APA prior to April 3, 2002.
Appellants’ conspiracy concerns,
while legitimate, run counter to an
important competing policy articulated in
McNamara-Blad. Adopting Appellants’
position “would force unions to protect the
interests of any person who might become
a bargaining unit member to the detriment
of current bargaining unit members. Such
a duty would contravene the union’s
statutory duty to protect the interests of its
own bargaining unit members.” 275 F.3d
at 1173. In light of the fact that Appellants
do have a remedy against their former
bargaining agent, ALPA, this observation
outweighs Appellants’ concerns regarding
possible collusion and conspiracy.
Because we agree with the District
Court that APA owed no duty of fair
representation to the Class prior to April 3,
2002, we affirm.
B. Alleged Breaches of the Duty of
Fair Representation by APA
Post-April 3, 2002
Count II of the Second Amended
Restated Complaint further asserts that
APA breached its duty of fair
representation to the Class after April 3,
2002 by failing to require American to
maintain the status quo as to the Class’
working conditions, including seniority.
In lieu of maintaining the status quo,
Appellants allege that Supplement CC was
imposed without following the requisite
section 6 procedures of the RLA, 45
U.S.C. § 156. The District Court
dismissed the allegations for failure to
state breaches of the duty of fair
representation, either because the
allegations are “too general in nature to
specify any actual DFR breach” or because
there was nothing for APA to negotiate on
behalf of the Class once Supplement CC
became effective. For the following
reasons, we affirm.
The “status quo” provision of
section 6 of the RLA directs that, while the
major dispute resolution procedures are
being followed, “rates of pay, rules or
working conditions shall not be altered by
the carrier until the controversy has been
finally acted upon as required by [the
RLA]. . . .” 45 U.S.C. § 156; see also id. §
152, Seventh (“No carrier . . . shall change
the rates of pay, rules, or working
conditions of its employees . . . except in
the manner prescribed in [collective
bargaining] agreements or in section 156
of this title.”). The purpose of the status
quo provisions is to impose an obligation
on the parties to make every reasonable
effort to negotiate a settlement. The
provisions promote compromise to avoid

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21
strikes. See Detroit & Toledo Shore Line
R.R. Co. v. United Transp. Union, 396
U.S. 142, 148-49, 149 n.14, 90 S.Ct. 294,
24 L.Ed.2d 325 (1969). With respect to
ascertaining what the appropriate status
quo conditions are, the Supreme Court has
counseled that “the status quo extends to
those actual, objective working conditions
out of which the dispute arose, and clearly
these conditions need not be covered in an
existing agreement.” Id. at 153. As such,
it is of no moment if the relevant collective
bargaining agreement upon which the
dispute is based has expired. Because the
status quo derives from the RLA, and not
contract, that agreement can still be used
to inform the court’s status quo
determination. “[T]he inquiry is not one
which looks to the parties’ collective
bargaining agreements; instead, the act
requires an objective determination of the
actual status quo.” Int’l Ass’n of
Machinists and Aerospace Workers v.
Aloha Airlines, Inc., 776 F.2d 812, 816 (9th
Cir. 1985). Moreover, that the focus of the
status quo inquiry is on “actual, objective
working conditions” does not preclude the
parties from entering into an explicit
agreement defining the specific conditions
that the parties want to constitute the status
quo during the appropriate renegotiation
period, even if such conditions differ from
the actual, objective status quo. In other
words, section 6 of the RLA does not
prevent the parties from altering the actual,
objective status quo by agreement. Airline
Pilots Ass’n, Int’l v. Pan-Am. World
Airways, Inc., 765 F.2d 377, 381 (2d Cir.
1985).
Appellants argue that the terms and
conditions embodied in the TWA-
LLC/ALPA transition agreement, which
expired by its own terms on April 3, 2002
when the NMB extended APA’s
certification to cover the Class, constitute
the status quo and should have continued
in full force until the APA negotiated new
terms with American, with the exception
of those limited terms which the parties
had previously agreed would change. The
transition agreement does not provide that
the Class would be bound to any
agreement entered into between American
and APA upon determination of single
carrier status an d the tr ansitio n
agreement’s expiration.
We agree that the Class never
waived its statutory rights under the RLA.
Section 6 of the RLA is not implicated,
h o w e v e r, beca use im positio n o f
Supplement CC upon on the Class on
April 3, 2002 did not constitute a change
in the Class’ status quo. The facilitation
agreement, signed by ALPA, APA, TWA-
LLC and American, provides that, “in the
event that APA and ALPA reach an
agreement on an integrated seniority list .
. . such agreement will be presented to
American as a proposed modification of
Section 13 of the collective bargaining
agreement between American and APA.”
In essence, the status quo became a right to
a particular process and whatever result it
yielded. The facilitation agreement did not
explicitly detail what would occur in the
event the two unions failed to reach an
agreement. Implicit in its arrangement,
however, is that the Class would be bound

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22
by the terms of the American-APA
collective bargaining agreement as those
terms existed at the time the NMB
extended APA’s certification as the
bargaining representative for the entire
Class, whether or not such terms had been
modified by an agreement struck between
APA and ALPA. As such, Supplement
CC provided the status quo terms for the
Class. This status quo determination is
not, as Appellants argue, akin to finding a
waiver of statutory rights. Instead, it
illustrates that the Class’ statutory rights
were not in issue because there was no
modification of the status quo. Pursuant to
the facilitation agreement, the Class
consented to be bound by the APA-
American collective bargaining agreement,
including Supplement CC, upon the
appropriate declarations by the NMB.
Consideration of the terms of the
expired transition agreement does not alter
the analysis. With respect to the issue of
seniority, the transition agreement did no
more than rank the former TWA pilots vis-
a-vis themselves. Indeed, it intentionally
excluded any reference as to what sort of
seniority agreement would ensue upon a
determination by the NMB that TWA-LLC
and American constituted a single
employer.
While no case is directly on point,
Ass’n of Flight Attendants v. USAir, Inc.,
24 F.3d 1432 (D.C. Cir. 1994) lends
support to this position. In AFA, USAir
had assumed managerial control over
Shuttle’s flight operations. The USAir
pilots were represented by AFA, and the
Shuttle pilots were represented by TWU.
After the NMB declared USAir and
Shuttle to be a single transportation
system, extinguished TWU’s certification,
and certified AFA as the bargaining
representative for both Shuttle and USAir
flight attendants, USAir insisted that the
Shuttle employees were still covered by
the terms of the Eastern-TWU agreement
until a new agreement is negotiated. AFA
then filed suit against USAir, contending
that the AFA-USAir agreement necessarily
establishes the terms and conditions to be
applied to Shuttle flight attendants until a
new agreement is negotiated. The D.C.
Circuit held that the Eastern-TWU
agreement fixed the status quo in the
bargaining relationship between USAir
and AFA on behalf of Shuttle flight
attendants. Consequently, the terms of that
agreement govern the working conditions
of Shuttle flight attendants until USAir and
AFA agree otherwise. The Circuit defined
the issue as follows: “whether, as a matter
of law, the Board’s termination of TWU’s
certification simultaneously caused the
‘status quo’ for Shuttle flight attendants to
be changed so as to be defined by the
terms in the AFA-USAir agreement rather
than in the Eastern-TWU agreement.” In
answering this in the negative, the court
made several observations pertinent to our
inquiry. The court pointed out that the
AFA-USAir agreement did not mandate
that its coverage be extended to new units
of flight attendants. Significantly, the
court states that “there is no doubt that
AFA and USAir could have included some
such clause in their agreement to cover
new units or groups of flight attendants
added to the USAir transportation system.”

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23
This observation implies that an incoming
group would be bound by such a clause
despite not being provided any opportunity
to bargain over the clause. In the case at
bar, the American/APA collective
bargaining agreement, as supplemented by
Supplement CC, did contemplate inclusion
of Appellants. American and APA had in
fact agreed upon the terms, including the
seniority terms, that would govern the
combined pilot bargaining unit when the
N M B issued a single empl oye r
determination and extended the APA’s
representational certification to cover the
combined unit. The D.C. Circuit’s
observations here are admittedly dicta, but
lend support to the view that the status quo
provisions of the RLA are not implicated
in this case. As such, Appellants’ claim
that APA breached its duty of fair
representation after April 3, 2002 by
failing to enforce the Class’ status quo is
without merit.
Accordingly, we affirm the District
Court’s decision on Count II of the Second
Amended Restated Complaint.
Counts III & IV
Count III of Appellants’ Second
Amended Restated Complaint charges
American and TWA-LLC with breach of
the duty to treat with the Class’ certified
representative pursuant to 45 U.S.C. § 152,
Ninth. Count IV avers that American and
TWA-LLC each failed to negotiate in
good faith, pursuant to 45 U.S.C. § 152,
First.4 Appellees claim that only a certified
representative would have a right to bring
a cause of action under 45 U.S.C. § 152,
First & Ninth. The Class advances two
theories in asserting its right to bring a
cause of action under these provisions.
First, the Class argues that an implied right
of action against American and TWA-LLC
is created in its favor by 45 U.S.C. § 152,
Second & Ninth. Second, the Class
contends that its claims against American
and TWA-LLC are properly brought as the
“hybrid” claims pursuant to Childs v.
Pennsylvania Federation Brotherhood of
Maintenance Way Employees, 831 F.2d
429 (3d Cir. 1987). The District Court
found that 45 U.S.C. § 152, Second &
Ninth do not create an implied right of
action in favor of the Class and that the
Class had no standing to bring Counts III
and IV against American and TWA-LLC.
We affirm the District Court’s dismissal
on these grounds.5
4Although the RLA does not state an
express duty to negotiate in good faith, this
duty is implied throughout section 152.
While Appellants’ Second Amended
Restated Complaint cites to section 152,
First & Ninth, a duty to negotiate in good
faith is more clearly implicated in section
152, Second (“[a]ll disputes . . . shall be
considered, and, if possible, decided . . . in
conference between representatives
designated”). As explained in the text,
however, none of these provisions provide
a private cause of action for Appellants.
5Our disposition of Counts III and IV
obviates the need to consider, as argued by

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24
The RLA does not expressly grant
a private right of action to enforce its
provisions. Although the legislative history
of the RLA is silent on the issue of
whether Congress intended to imply a
private right of action under the RLA, see
Texas & N.O.R. Co. v. Brotherhood of Ry.
& S.S. Clerks, 281 U.S. 548, 50 S.Ct. 427,
74 L.Ed 1034 (1930), “the failure of
Congress expressly to consider a private
remedy is not inevitably inconsistent with
an intent on its part to make such a remedy
available.” Transamerica Mort. Advisors,
Inc. v. Lewis, 444 U.S. 11, 17, 100 S.Ct.
242, 62 L.Ed.2d 146 (1979). An intent to
imply a private remedy may lie implicitly
in the language or structure of a statute.
Id. The Supreme Court has promulgated
factors for determining whether a private
remedy is implicit in a statute not
expressly providing one. Cort v. Ash, 422
U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26
(1975).
Courts have found private rights
under other provisions of 45 U.S.C. § 152.
Applying the Cort v. Ash factors, many
courts have implied a private right of
action for individual employees within 45
U.S.C. § 152, Third & Fourth of the RLA.
See, e.g., Roscello v. Southwest Airlines
Co., 726 F.2d 217, 220 (5th Cir. 1984);
Adams v. Fed. Express Corp., 547 F.2d
319, 321 (6th Cir. 1976), cert. denied, 431
U.S. 915, 97 S.Ct. 2177, 53 L.Ed.2d 225
(1977); Beckett v. Atlas Air, Inc., No. 95-
0480, 1995 WL 498703 (E.D.N.Y. Aug.
14, 1995); Int’l Ass’n of Machinists and
Aerospace Workers v. Altair Airlines, Inc.,
481 F.Supp. 1359, 1360 (E.D. Pa. 1979).
Implying a private cause of action for
individual employees under 45 U.S.C. §
152, Third & Fourth of the RLA is
appropriate given that those sections
prohibit carriers from discriminating
against employees in connection with
union organizing activities. See Int’l
Ass’n of Machinists v. Northwest Airlines,
673 F.2d 700, 707 (3d Cir. 1982). In
Adams, however, the Sixth Circuit held
that “the Railway Labor Act confers no
implied right of action upon an uncertified
union to maintain a suit on behalf of
employees it seeks to represent.” Adams,
547 F.2d at 322 (emphasis added).
Furthermore, research has not revealed any
cases where the federal courts have
allowed individual employees to pursue
RLA statutory claims outside of 45 U.S.C.
§ 152, Third & Fourth, except for duty of
fair representation suits against a union.
In contrast to 45 U.S.C. § 152,
Third & Fourth, 45 U.S.C. § 152, Ninth &
Second does not create a private right of
action for individual employees. In
determining whether Appellants have an
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.
Ash, 422 U.S. 66, 95 S.Ct. 2080, 45
L.Ed.2d 26 (1975), specifically focusing
on the first two factors: (1) whether
plaintiff is a member of the class “for
American and TWA -LLC, whether
Appellants’ claims fail to state claims for
relief or pose a representational dispute
subject to the exclusive jurisdiction of the
NM B.

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25
whose especial benefit the statute was
enacted”; and (2) whether there is
evidence of legislative intent to create or
preclude the relief sought. Id. at 78; see
Touche Ross & Co. v. Redington, 442
U.S. 560, 575-76, 99 S.Ct. 2479, 61
L.Ed.2d 82 (1979). Unlike 45 U.S.C. §
152, Third & Fourth, which are directed
specifically at the employer’s relationship
with employees, 45 U.S.C. § 152, Ninth &
Second are directed at the employer’s
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
representative. 45 U.S.C. § 152, Ninth of
the RLA provides that the NMB shall
resolve “disputes as to who are the
representatives of the employees
designated and authorized in accordance
with the requirements of this Chapter” and
to certify a designated union as bargaining
agent. 45 U.S.C. § 152, Ninth. It provides
further that “upon receipt of such
certification the carrier shall treat with the
representative so certified as the
representative of the craft or class for the
purposes of this Chapter.” § 152, Ninth
(emphasis added). 45 U.S.C. § 152,
Second of the RLA similarly provides that
“[a]ll disputes between a carrier . . . and its
. . . employees shall be considered, and, if
possible, decided, with all expedition, in
conference between repre sentatives
designated and authorized so to confer, . .
. ” § 152, Second (emphasis added).
We agree with the District Court
that Appellants “are not within the
definition of the class that the statute was
designed to protect” because “[t]he statute
does not state that the carrier must ‘treat’
with its employees, but rather with their
representative.” That the statute may
indicate a congressional intent to create a
private cause of action for a duly certified
representative that is injured pursuant to
these provisions does not imply that
Congress intended to create a private right
of action for any group or groups of
individual employees claiming to act on
behalf of the relevant employees. Cf.
Adams.
A number of additional factors
militate against granting individual
employees a right to assert claims under 45
U.S.C. § 152, Second & Ninth. Allowing
a group or groups of individual employees
to bring a cause of action under section
152, Second or section 152, Ninth of the
RLA would undermine the provisions’
purpose of providing for an organized
process of negotiation between one
employee representative and the employer,
and could lead to chaos. A bargaining
agent, as opposed to any of its individual
members, is in the best position to bring
forth these types of grievances because a
union is required to act in the best interests
of all its principals. Moreover, and
im po rta ntly, individ ual e m ployees
claiming to be aggrieved by the failure to
treat or the failure to negotiate in good
faith already have a remedy–individual
employees may press a duty of fair
repres enta tion claim again st the
appropriate representative(s), as was done
by Appellants in this case, or the certified
representative may bring a suit against the
carrier. Pursuant to this analysis,
Appellants as a class lack an implied
private right of action to bring claims

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26
asserting breaches of the duty to bargain
and duty to negotiate in good faith against
American and TWA-LLC because they are
not and have never been a certified
representative of the TWA pilots.
The District Court did not address
the Class’ second theory in support of
federal standing in Counts III and IV--that
it could bring a “hybrid” claim under
Childs against American and TWA-LLC.
In Childs, 831 F.2d 429, a railroad
employee brought suit in federal court
charging his union with a breach of its
duty of fair representation, and also
charging his employer with a breach of the
collective bargaining agreement. Even
though the claim against the employer
constitutes a “minor dispute” within the
exclusive jurisdiction of the NRAB, 45
U.S.C. § 153, we held that an employee
may bring this claim against his employer
in federal court. We held this because it
was alleged that the employee could not
obtain meaningful relief before the Board
against the employer because the union’s
breach of its duty of fair representation had
precluded the employee from presenting
crucial evidence to the Board. We stated
that “[o]ne important policy of the RLA .
. . is to afford employees means for relief.
Therefore, courts have form ulated
exceptions to the jurisdictional scheme of
the RLA where it appears that without
such access to the federal courts the
employee’s right to redress would be
jeopardized.” 831 F.2d at 437. Thus, even
though an employee would normally have
to arbitrate a minor dispute before the
Board, the employee was permitted to
proceed in federal court because he could
not obtain meaningful relief before the
Board.
Childs does not apply in this case.
To begin with, we expressly stated in
Childs that we were addressing “the rare
case in which the union, by breaching its
DFR, effectively precludes the employee’s
opportunity for obtaining relief before the
NRAB.” 831 F.2d at 441. Unlike Childs,
the Class in the instant suit has not alleged
that American and/or TWA-LLC breached
a collective bargaining agreement. Childs
also involved an employee’s loss of an
express statutory right, whereas only an
implied right was claimed by the Class in
the present case. Moreover, the stated goal
of Childs was carrying out the RLA’s
central policy of affording employees
some fair and efficient means of redressing
their grievances. This is not the situation
in the present case. If a union breaches its
duty of fair representation by failing to
require a carrier to treat with it, as required
by section 152, Ninth of the RLA, an
individual employee’s remedy lies in a
duty of fair representation action against
the union, not a major dispute claim
against the carrier. As noted, Appellants
may proceed against ALPA in this case.
Because we hold that Appellants
may not pursue the claims averred in
Counts III and IV, the District Court’s
dismissal of these claims is affirmed.
Counts V - IX
In Counts V through IX of their
Second Amended Restated Complaint,
Appellants allege state-law violations by

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27
Appellees, which they plead in the
alternative to their federal claims. Counts
V and VI allege that American, TWA-
LLC, and APA engaged in tortious and
malicious interference and fraudulent
misrepresentation with respect to the
collective bargaining agreement between
ALPA and TWA. Appellants claim that as
a result of the alleged interference and
misrepresentations, ALPA agreed to the
waiver agreement to Appellants’ detriment
and breached i t s d u t y o f f air
representation. Appellants proceed to
claim in Counts VII and VIII that
American and TWA-LLC breached the
transition agreement by failing to use their
best efforts to secure a fair and equitable
process for seniority integration. APA
allegedly tortiously interfered with
American and TWA-LLC’s contractual
obligations under the transition agreement
by causing them to breach. Finally, Count
IX alleges that American, TWA-LLC,
APA, and ALPA conspired with the
common design of abrogating the TWA
seniority integration provisions and
endtailing the vast majority of TWA pilots
in favor of the incumbent American pilots.
The District Court dismissed Counts V
though IX as preempted by the RLA.
Appellants argue that the District
Court erred in dismissing their state-law
claims against APA, American, and TWA-
LLC. The District Court’s decision relied
on the preemption doctrine established in
San Diego Building Trades Council v.
Garmon, 359 U.S. 236, 79 S.Ct. 773, 3
L.Ed.2d 775 (1959), which was extended
to the RLA in Brotherhood of Railroad
Trainmen v. Jacksonville Terminal Co.,
394 U.S. 369, 89 S.Ct. 1109, 22 L.Ed.2d
344 (1969). Under Garmon, state-law
causes of action are presumptively
preempted where they concern conduct
that is actually or arguably either protected
or prohibited by federal labor relations
law. Pennsylvania Nurses Ass’n v.
Pennsylvania State Educ. Ass’n, 90 F.3d
797, 801 (3d Cir. 1996). The two explicit
exceptions to this preemption apply to
conduct “deeply rooted in local feeling and
responsibility” and to matters of only
“peripheral concern” to federal labor
relations law. Garmon, 359 U.S. at 243-
44. Despite the generally sweeping nature
of Garmon preemption, the Supreme Court
has recognized judicial responsibility to
“determine the scope of the general rule by
examining the state interests in regulating
the conduct in question and the potential
for interference with the federal regulatory
scheme.” Farmer v. United Bhd. of
Carpenters and Joiners of Am., Local 25,
430 U.S. 290, 297, 97 S.Ct. 1056, 1062, 51
L.Ed.2d 338 (1977).
A principal purpose of the RLA is
to provide for the prompt and orderly
settlement of all disputes over pay, rules,
or working condi t io n s a n d the
interpre tation and application of
agreements concerning pay, rules, or
working conditions. RLA § 2, 45 U.S.C.
§ 151a. Appellants’ state-law claims all
involve alleged interference with their
employment rights as established by the
various agreements that govern their
wages and other benefits as well as their
right to be fairly represented under RLA §

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28
2, 45 U.S.C. § 152. Thus the property
rights at issue are founded upon federal
law, derive their strength and protection
from federal law, and exist to effectuate a
nationwide federal labor policy. See
Wilkes-Barre Pub. Co. v. Newspaper
Guild of Wilkes-Barre, Local 120, 647
F.2d 372, 380-81 (3d Cir. 1981).
Having determined that Appellants’
contractual rights are protected by federal
labor law, which satisfies the presumptive
preemption of Garmon, we now consider
whether any exception to this presumption
applies. The state-law claims alleged seek
to protect Appellants’ rights as established
through their collectively-bargained
agreements. Thus they do not concern
conduct touching interests deeply rooted in
local feeling and responsibility. See
Wilkes-Barre, 647 F.2d at 381 (holding
that tortious interference with a labor
contract is not conduct touching interests
deeply rooted in local feeling and
responsibility). Nor is this a matter of only
peripheral concern to federal law. Clearly,
the process of seniority integration in the
event of an acquisition directly affects the
wages and other benefits of workers. The
RLA determines the rights, obligations,
and duti e s o f employees, their
representatives, and carriers with respect
to negotiations and agreements concerning
such a central aspect of employment.
Thus, federal law is directly concerned
with the issues here.
Appellants argue that with respect
to their claims against APA, there can be
no preemption of state-law claims if APA
owed no duty to them. They assert that the
District Court’s finding that APA owed no
duty necessarily means that the RLA does
not apply to this conduct. For support,
Appellants rely on Krantz v. Air Line
Pilots Association, International, 427 S.E.
236 (Va. 1993), where the Virginia
Supreme Court held that the RLA did not
preempt a job applicant’s right to sue a
union for tortious interference with
pro spective em plo ymen t. Wh ile
expressing no opinion on the Krantz
holding itself, Appellants’ situation is
distinguishable. The court in Krantz based
its decision on the proposition that a job
applicant “has no federally protected right”
to employment under the RLA. Krantz,
427 S.E. at 329-30. Here Appellants seek
to protect their rights in an existing
employment relation as provided by the
relevant collective bargaining agreements
and the statutory protections of the RLA.
These rights stem from federal law, so
Krantz is inapposite.
The rights and duties of unions in
carrying out their representational
functions is an area where “the policy of
the law is so dominated by the sweep of
federal statutes that legal relations which
they affect must be deemed governed by
federal law having its source in those
statutes, rather than by local law.” Condon
v. Local 2944, United Steelworkers, 683
F.2d 590, 594-95 (1st Cir. 1982) (quoting
Local 20, Teamsters Union v. Morton, 377
U.S. 252, 261, 84 S.Ct. 1253, 1259, 12
L.Ed.2d 280 (1964)). The importance of
uniform relations among employees,
unions, and employers may call for
preemption of state protections of federal

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29
rights, even where federal law does not
impose an analogous duty. See Kaufman
v. Allied Pilots Ass’n, 274 F.3d 197 (5th
Cir. 2001) (holding airline passengers’
state-law claims against union preempted
by federal law, despite lack of equivalent
remedy to passengers). Appellants’ relief
for any violations of their contractual or
statutory rights must come in the manner
prescribed by federal law.
Appellants argue with respect to the
claims against American, that the RLA
cannot apply to the period of time for
which Appellants were not employed by
American and thus the state-law claims
cannot be preempted. Appellants rest their
argument primarily on our decision in
Felice v. Sever, 985 F.2d 1221 (3d Cir.
1993). In Felice, we held that state-law
claims that did not implicate a collective
bargaining agreement covered by § 301(a)
of the Labor Management Relations Act
(LMRA) did not give rise to immunity of
union officials under § 301(b). In part, we
reasoned that because the plaintiff in that
case was not covered by a collective
bargaining agreement and thus not
represented by a labor organization, § 301
did not apply to the relationship between
the parties and could not serve to preempt
state law. This case, though instructive, is
not directly applicable because it involves
provisions of the LMRA which have no
corresponding provision in the RLA.
Appellants urge that the RLA and
its arbitration provisions only apply to
disputes between a carrier and its
employees. However, the plain language
of the statute does not support such a
limitation on the RLA’s scope. The RLA
covers “disputes between an employee or
group of employees and a carrier or
carriers by air” not merely disputes
between a carrier and its own employees.
RLA § 204, 45 U.S.C. § 184. We thus
believe that congressional intent was to
submit such disputes to the RLA
resolution mechanisms. See Pyles v.
United Air Lines, Inc., 79 F.3d 1046,
1050-52 (11th Cir. 1996) (holding that
employees of one carrier may seek relief
under the RLA for disputes with another
carrier). Preemption of the state-law
claims is therefore appropriate, and
Appellants’ argument must be rejected.
We conclude that Appellants’ state-
law claims seek to protect their contractual
rights negotiated under the auspices of the
RLA and not any independent state-law
right. Cf. Hawaiian Airlines Inc. v. Norris,
512 U.S. 246, 260-61, 114 S.Ct. 2239,
2247-48, 129 L.Ed.2d 203 (1994) (finding
a state whistleblower statute to provide an
independent right not to be discharged).
Appellants’ state-law claims were properly
dismissed as preempted by the RLA.
V. Conclusion
We reverse and remand on Count I
of Appellants’ Second Amended Restated
Complaint. We affirm the District Court’s
dismissal of all remaining Counts of the
Second Amended Restated Complaint.
FISHER, Circuit Judge, dissenting.
I dissent because I disagree with the
majority’s analysis of Count I. I join the

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30
majority’s affirmance of the remainder of
the claims on appeal. But I would affirm
the district court’s determination of the
untimeliness of the Class’ claims in Count
I asserting that the Air Line Pilots
Association (“ALPA”) breached its duty of
fair representation (“duty”) under the
Railway Labor Act, 45 U.S.C. § 151, et.
seq.
A fundamental premise of the
majority opinion is that Supplement CC
(the November 8, 2001 agreement between
American’s pilots and American regarding
seniority integration of former TWA pilots
and American’s pilots) was not the
inescapable result of the Class’ waiver of
Allegheny-Mohawk labor protective
provisions in April of 2001. The subject
of the scope of the waiver and whether it
included the right to bargain over seniority
integration post-purchase was precisely
why American required the waiver of
those rights as a condition precedent to its
purchase of TWA’s assets out of
bankruptcy. This was to avoid conflict
between the collective bargainin g
agreements applicable respectively to the
American and TWA pilots regarding
seniority (which absent the waiver
contained irrecon cilable s eniorit y
provisions).6 Because the April 2001
waiver clearly and unmistakably included
a waiver of the Class’ contractual right to
arbitrate seniority integration issues and
their right to bargain over seniority after
American’s purchase of TWA, any claim
that ALPA breached its duty of fair
representation to the Class accrued at that
time.
There were no rays of hope to
extend the accrual of the duty of fair
representation claims based on ALPA’s
post-waiver actions or inaction. The
waiver and its attendant agreements (the
Transition Agreement between the Class
pilots and TWA, LLC and the “best
efforts” letter from American) eliminated
ALPA’s ability to effectively bargain with
either TWA, LLC or American for any
seniority integration different from that
which existed at the time of the waiver.
Because of the limitations these
agreements imposed upon ALPA’s ability
6The collective bargaining agreement
between TWA and its pilots contained
Allegheny-Mohawk labor protective
provisions including the right to arbitrate
seniority integration in the event of a
merger with another airline. See
Allegheny-Mohawk Merger Case, 59
C.A.B. 22, 31-40 (1972). The collective
bargaining agreement between American
and its pilots (represented by the Allied
Pilots Association) contained a provision
that pilots new to American due to the
acquisition of another airline will not
begin to accrue seniority until they begin
working for American (endtailing).
Seniority governs rates of pay, flight
schedules and routes, type of airplane
flown, whether pilots fly as captain or first
officer and their eligibility for furlough
and recall.

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31
to bargain with TWA, LLC7 or American
regarding seniority, any meaningful ray of
hope was extinguished. The only actions
that ALPA could take were collateral to
the real issue – a desire by the TWA pilots
to get that which was waived in April 2001
– the right to demand a fair and equitable
seniority integration. Consequently, the
claim that ALPA breached its duty of fair
representation is untimely and the district
court’s grant of summary judgment should
be affirmed.8
I.
The Class alleges in Count I that
ALPA violated its du ty of fair
representation relating to ALPA’s
representation of TWA pilots both prior
and subsequent to American’s purchase of
TWA out of bankruptcy. The Class
contends that in April 2001, ALPA
coerced the TWA Master Executive
Council into waiving the TWA pilots’
contractual labor protective provision to
arbitrate over seniority integration because
of ALPA’s alleged interest in organizing
the American pilots, who were then
represented by the Allied Pilots
Association. In its Second Amended
Restated Complaint filed January 27,
2003, the Class pleaded for the first time
additional duty claims, all of which flow
from the waiver of the right to arbitrate
seniority integration. Those claims are
that ALPA: (1) failed to require American
and TWA, LLC to negotiate the terms of
the seniority integration with ALPA while
ALPA remained the certified collective
bargaining agent for the Class; (2) failed to
take action to challenge Supplement CC
though the agreement was entered into to
control matters relating to rates of pay,
rules and working conditions of the Class
and was entered into with other than
ALPA as the Class’ collective bargaining
agent in violation of the Railway Labor
Act; and (3) that ALPA permitted
American and TWA, LLC to require the
TWA Master Executive Council9 to
negotiate seniority integration with
American’s pilots’s union, the Allied
7TWA, LLC was the wholly-owned
subsidiary of American that employed the
former TWA pilots upon American’s
purchase of TW A’s assets fro m
bankruptcy.
8Summary judgment arose in the
context of the Appellees’ motion to
dismiss the second amended class
complaint pursuant to Rule 12 (b)(6) of the
Federal Rules of Civil Procedure. Because
the parties relied on information outside
the pleadings, the 12(b)(6) motion was
converted to a motion for summary
judgment. The Class filed a Rule 56(f)
affidavit in opposition to the motion.
However, that Affidavit did not provide
with any specificity the information sought
to be discovered to defeat the pending
motion. But the question of the propriety
of the conversion in light of the Rule 56
motion is not before us.
9TWA pilots were represented by
ALPA through the Master Executive
Council comprised of TWA pilots,
including some members of the Class.

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

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

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limitations period associated with ALPA’s
initial breach of its duty accrued on April
6, 2001, and that all subsequent breaches
of its duty were “inescapably grounded” in
that breach. It did not find that these
conditions were met. Local Lodge, 326
U.S. at 422. Unlike the majority, however,
I conclude that both of these conditions
were met to warrant application of Local
Lodge for accrual purposes. I disagree that
Supplement CC11 and the allegations that
ALPA breached its duty of fair
representation post-waiver constituted
breaches separate from the initial breach of
ALPA’s duty – that it coerced the pilots
into waiving their seniority integration
protections. Rather, I conclude, as the
district court recognized, that the waiver
subsumed any rights to bargain for
seniority integration from April 2001
forward. That includes the claims that
subsequent to the waiver, ALPA breached
its duty by failing to challenge Supplement
CC, failing to negotiate seniority
integration with the Allied Pilots
Association during the transition period,
and permitting American to dictate that
seniority integration would be negotiated
between the two pilot’s unions.
A.
The waiver must be viewed not as
a singular act in April 2001 but as a series
of agreements that effectively waived any
right to bargain for seniority integration
with either TWA, LLC or American. First,
the TWA Master Executive Council
agreed to waive seniority integration
protections in exchange for TWA’s
withdrawal of its bankruptcy motion to
eliminate its contractual obligations with
its unions. That waiver also was
conditioned on American’s promise to use
its “best efforts” to facilitate an agreement
between the two pilot’s unions regarding
seniority integration. But that promise by
American represented an obligation merely
to support the process of negotiation
between the dueling unions in their
attempt to reach an agreement concerning
a “fair and equitable” seniority integration.
It was not an obligation for American to
bargain with ALPA or the Master
Executive Council regarding a “fair and
equitable” seniority integration. That is
what was forfeited in April 2001 when the
seniority integration protections were
11From February to October 2001, the
Allied Pilots Association and the TWA
Master Executive Council attempted to
negotiate seniority integration terms, even
using the services of a mediator paid for by
American. When those negotiations failed
to produce an agreement regarding
seniority integration, American and its
pilots executed a seniority integration
agreement known as Supplement CC on
November 8, 2001, which called for some
dovetailing of TWA pilots among the
American pilots for seniority purposes.
That agreement amended Section 13 of the
original agreement between American and
its pilots that otherwise would have
governed seniority integration. Supplement
CC would not become effective until
single-carrier designation and certification
of a collective bargaining agent for the
combined pilot class.

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35
waived.
Second, the Transition Agreement
by its terms was not amendable and
expired by its own terms once TWA, LLC
and American are deemed a single carrier
by the National Mediation Board. Nor did
it require that TWA, LLC engage in any
bargaining with ALPA regarding changes
to work rules or benefits during the
transition period. All that was required
was written notice 21 days before any
changes were to be made.
Given these agreements, the claims
concerning ALPA’s breach of its duty
subsequent to the waiver are in fact
“inescapably grounded” in the waiver and
the attendant agreements of April of 2001.
All that was left was a promise by
American to use its “best efforts” to
support union to union negotiations
regarding seniority integration. The claims
that ALPA breached its duty of fair
representation thus are inescapably
grounded in ALPA’s conduct in
negotiating the waiver. Consequently, the
claims are untimely.12
B.
T h e w a i v e r c l ea r l y a n d
unequivocally included the right to bargain
with either TWA, LLC or American
regarding seniority. See Gullickson v.
Southwest Airline Pilots’ Association, 87
F.3d 1178 (10th Cir. 1996).
Gullickson involved the purchase of
Morris Air, whose pilots were non-union,
by Southwest Airlines. Southwest sought
a waiver of the scope provisions of its
agreement with the Southwest pilots’
union. Despite the fact that Morris pilots
were not represented by it, the Southwest
pilots’ union met with Morris pilot
representatives and obtained a list of
priorities regard ing job secu rity.
Thereafter, the union met with the
Southwest and reached a Letter Agreement
containing a scope of waiver clause as well
as seniority provisions giving Morris pilots
an effective seniority date of January 1,
1994. Morris pilots attended various
12The majority finds that the claims that
ALPA also breached its duty post-waiver
are timely using “relation back” under Fed.
R. Civ. P.15 (c). However, that analysis is
premised on the finding that the initial
claim that ALPA breached its duty filed on
September 3, 2002 – that ALPA coerced
the TWA M aster Executive Council into
waiving seniority integration given
ALPA’s interest in organizing the
American pilots – was timely filed. For
the reasons stated within this opinion, I
diverge from the majority’s conclusion
that “rays of hope” tolled the accrual of the
initial claim that ALPA breached its duty
until April 2002. Rather, because that
breach of duty claim accrued at the time of
the waiver, relation back cannot save the
claims that ALPA breached it duty
subsequent to the waiver. The initial
complaint must have been timely in order
for relation back to save the claims that
ALPA breached its duty subsequent to the
waiver. See e.g., Henderson v. Bolanda,
253 F.3d 928, 931 (7th Cir. 2001).

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36
informational meetings conducted by the
Southwest pilots’ union regarding the
terms of that Letter Agreement.
In February 1994, the Southwest
pilots’ union became the collective
bargaining representative for the Morris
pilots. Three months later, Morris pilots
ratified a collective bargaining agreement.
On June 29, 1994, Morris pilots sued the
Southwest pilots’ union and Southwest for
breach of the duty of fair representation
resulting from the endtailing of the Morris
pilots in the course of a seniority
integration and failure to permit Morris
pilots an opportunity to ratify the Letter
Agreement. But the Court found that the
language of the Southwest-Mo rris
collective bargaining agreement was
sufficiently clear to inform Morris pilots
that ratification of it necessarily ratified
the effect of the Letter of Agreement
between the Southwest pilots union and
Southwest regarding seniority integration.
Likewise, as the comments of TWA
Master Executive Council President
Robert Pastore to the entire pilot group
reveal, the TWA M aster Executive
Council took the best option available –
agreeing to the waiver to facilitate the
purchase of TWA by American and to
save as many contractual provisions as
possible while still having to negotiate
seniority integration with the American
pilots’ union during the transition period.
This, when coupled with the language of
the various agreements (as discussed supra
at part III.A), supports the conclusion that
there was a clear and unmistakable waiver
of the right to bargain for seniority. But
“[a] voluntary choice may not be
withdrawn because the choice was an
effort to make the best of a bad situation.
Adult pilots, of sound mind and well
aware of the consequences of their acts,
must expect to keep contracts, even when
they wish they could have made better
deals.” Rakestraw v. United Airlines, Inc.,
981 F.2d 1524, 1534 (7th Cir. 1992).
IV.
Nor would I apply the “ray of hope”
doctrine to toll the accrual of the claims
that ALPA breached its duty until April
18, 2002, the date the arbitrator of the
System Board of Adjustment denied the
Class’ challenge based on American’s
“best efforts” promise. See Childs v.
Penn. Fed’n Brotherhood of Maintenance
Way Employees, 831 F.2d 429, 434 (3d
Cir. 1987) (holding that duty of fair
representation claim does not accrue while
the union continues to actively represent
the employee and offers rays of hope that
the employee’s cause will prevail). The
Class contends, and the majority accepted,
that ALPA’s arbitration of American’s
alleged breach of its “best efforts” letter
necessarily impacted the viability of
Supplement CC, which could have
resulted in the invalidation of Supplement
CC.
The fundamental flaw in the
majority’s application of the Childs “ray of
hope” doctrine is its reliance on the
premise that Supplement CC was not the
inescapable result of the waiver of the
seniority integration protections in April of
2001. “Rays of hope” cannot sustain a

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37
claim when the waiver of seniority
integration protections gutted any chance
that ALPA could continue to represent the
Class to reach a more advantageous
seniority integration agreement. For the
reasons stated previously, the waiver of
seniority integration protections, and the
attendant agreements executed in early
April 2001, eliminated both contractual
and any statutory duties to bargain for
seniority thereafter. In other words, it
stripped ALPA of any real negotiating
strength or bargaining leverage with
respect to the seniority integration of
former TWA pilots within American.
Moreover, even if ALPA prevailed in the
arbitration concerning the “best efforts”
letter, and American was found to have
breached its “best efforts” promise, it still
would not eliminate the fact that the
Transition Agreement between ALPA and
TWA, LLC was not amendable and
precluded negotiations with TWA, LLC
concerning seniority integration. Nor
would a victory require American to
bargain with ALPA concerning seniority
integration. In order for a “ray of hope” to
exist, there must be a meaningful hope that
i t c a n r e m ed y t h e e m p l o ye e ’s
dissatisfaction.
Childs was premised on promoting
the federal labor policies of: (1) avoiding
unnecessary federal litigation; (2) allowing
full play of the administrative procedure;
and (3) sparing the employee the Hobson’s
choice between letting the statute of
limitations run and antagonizing his best
advocate. 831 F.2d 434-35, 436. As to
avoiding unnecessary federal litigation,
Childs recognized that “[i]f the union can
indeed remedy the cause of the employee’s
dissatisfaction, it should be allowed to do
so, thus obviating federal judicial
involvement.” Childs, 831 F.2d at 434;
see also Whittle v. Local 6 41,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL-CIO, 59 F.3d 487 (3d Cir.
1995).
Childs and Whittle both dealt with
claims to overturn unfavorable arbitration
awards on grounds that the union
committed errors in the arbitration
proceedings. In Childs, the union declined
to represent Childs before the Board due to
a lack of corroborative evidence which
Childs claimed to have provided to the
Union during the grievance process. In
Whittle, the union allegedly failed to
prosecute a seniority case vigorously
before the joint local committee. Those
decisions are premised upon the policy to
resolve disputes where possible through
arbitration, thus obviating the need for
judicial involvement if the union is able to
remedy the cause to the employees’
satisfaction. See Childs, 831 F.2d at 434.
The claims in those cases therefore did not
accrue for statute of limitations purposes
until the employee learned of the
arbitrator’s award. Otherwise, there was
no way for employees to know whether
they suffered any loss from the union’s
alleged breach until the arbitration
decision issued. Whittle, 56 F.3d at 490.
Here, however, the cause of the
employee’s dissatisfaction was not
American’s breach of its “best efforts”

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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.

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