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KLEMENS v. AIR LINE PILOTS ASSN.

February 12, 1980

Thomas D. KLEMENS, Colin F. Dearing, Thomas G. Giefer, Roy A. C. Hill, Robert G. Maiers, Plaintiffs,
v.
AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, Defendant.



The opinion of the court was delivered by: SHARP

AMENDED ORDER ON DEFENDANT'S MOTION FOR DISMISSAL, OR ALTERNATIVELY FOR SUMMARY JUDGMENT

In 1972, the plaintiff, Thomas D. Klemens, was employed as a pilot by Northwest Airlines, Inc. (Northwest). He was a member of the Air Line Pilots Association, International (ALPA), the statutory exclusive collective bargaining agent for Northwest pilots. Since October 3, 1972, an "agency shop" agreement was in effect between Northwest and ALPA.

 In 1972 after the termination of a pilots' strike, a number of Northwest pilots with low seniority were not immediately recalled to active flying status. On October 6, 1972, the Northwest Master Executive Council (MEC) passed resolution 1-72, which authorized an assessment upon working Northwest pilots to pay a monthly benefit to the Northwest pilots who were not recalled.

 Mr. Klemens refused to pay the 1-72 assessment because it was levied only against Northwest pilots and not against the ALPA membership as a whole. However, Mr. Klemens continued to pay his regular membership dues to ALPA until October, 1975, when he was expelled from the union for failure to pay the 1-72 assessment.

 After his expulsion from ALPA, Mr. Klemens refused to pay the "service charge" (equivalent to dues) which is generally required from non-union employees under the "agency shop". He based his refusal upon Section 2, Eleventh, of the Railway Labor Act (45 U.S.C.A. § 152, Eleventh).

 By letter dated December 8, 1976, ALPA requested Northwest to discharge Mr. Klemens for delinquency in "service charge" obligations under the Union Security Agreement. When Northwest threatened to discharge Mr. Klemens, the latter paid his alleged deficiency to ALPA, whereupon the union withdrew its request for his discharge.

 On May 8, 1979, Mr. Klemens filed a Complaint seeking a declaratory judgment that he is not obligated to pay the ALPA "service charge" which he is currently rendering under protest. He is joined by pilots Hill, Maiers, and Giefer, who are similarly if not identically situated. He is also joined by pilot Dearing, who was expelled from ALPA for refusing to return an alleged overpayment of strike benefits. Their common claim is that their union membership was "terminated for (a) reason other than the failure . . . to tender the periodic dues, initiation fees, and assessments . . . uniformly required as a condition of acquiring or retaining membership." 45 U.S.C.A. § 152, Eleventh (a). Plaintiffs also argue that ALPA has breached its duty of fair representation.

 The defendant responds that the above-quoted language from section 152, Eleventh, was incorporated into section (a)(1) of the Union Security Agreement between ALPA and Northwest, as follows:

 The Union contends that the plaintiffs' claims are strictly contractual and bound by the grievance-arbitration procedure set forth in section (e) of the Union Security Agreement. ALPA denies that plaintiffs have a cause of action under the Railway Labor Act which is cognizable by this Court, and it moves to dismiss the Complaint. The union insists that arbitration is compelled both by the Railway Labor Act and by general federal labor policy, as developed by case law. Finally, the defendant argues that no rights arise under the federal statute unless plaintiffs have first been discharged. As an alternative to an Order of Dismissal, ALPA seeks summary judgment in its favor.

 After reviewing the Motion, memoranda, and pleadings filed herein, and being fully advised, the Court rules as follows:

 Plaintiffs' claim is within the subject matter jurisdiction of this Court if it arises "under any Act of Congress regulating commerce." 28 U.S.C. § 1337. The Railway Labor Act has been held to qualify as such an "Act" for purposes of federal court jurisdiction. See, e.g., Felter v. Southern Pacific Co., 359 U.S. 326, at 329, 79 S. Ct. 847, at 851, 3 L. Ed. 2d 854 (1959). Indeed, Congress intended labor organizations to "be held accountable for violations of section 2 . . . (Eleventh)", Brady v. Trans World Airlines, 401 F.2d 87, at 102 (3rd Cir. 1968), cert. denied 393 U.S. 1048, 89 S. Ct. 680, 21 L. Ed. 2d 691, rehearing denied 394 U.S. 955, 89 S. Ct. 1272, 22 L. Ed. 2d 492 (1969).

 Plaintiffs have stated a cause of action under Section 2, Eleventh, of the Railway Labor Act, 45 U.S.C. § 152, Eleventh. Defendant suggests that this provision merely authorizes a union shop (and by construction, an "agency shop"). However, this reading ignores the proviso to that section which states that such labor agreements shall not require membership (or by construction, the payment of alternative "service charges") from employees whose union membership was

 
denied or terminated for any reason other than the failure of the employee to tender the periodic dues, initiation fees, and assessments . . . uniformly required as a ...

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