As demonstrated in Electromation and Cabot Carbon, a labor organization need not be the formal representative of a majority of affected employees, nor must it be engaged in formal collective bargaining. The group of Atlas crew members which Beckett represented was one in which employees participated, and appears to have existed, at least in part, for the purpose of "dealing with" management regarding "grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." Thus, a reasonable trier of fact might find this group was a "labor organization" within the meaning of Section 2, Fourth of the RLA.
Summary judgment should be granted only where "there is no genuine issue as to any material fact." FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Plaintiff has raised a genuine issue of fact as to whether he was exercising his rights to "join, organize, or assist in organizing [a] labor organization" within the meaning of Section 2, Fourth of the RLA. Thus, the Court cannot find, on this summary judgment motion, that he was not engaged in activities protected by the RLA. To the extent any other courts may have implied that Section 2, Fourth protects only the organization of formal unions, see, e.g., Gullett Gin Co. v. NLRB, 179 F.2d 499, 500, 502 (5th Cir. 1950) (rejecting, in dicta, NLRB finding that small group of employees, "assembled for the purpose of gaining a raise in wages," was a "labor organization" within the meaning of section 2(5) of the NLRA), the Court declines to follow them. Such a limited reading does not comport with the broad construction of the term "labor organization" mandated by the NLRA and countenanced by the Supreme Court.
This is not to suggest Atlas was in an impossible situation, whereby terminating Beckett would subject it to a wrongful discharge claim and not doing so would subject it to a potential election challenge by the IBT. Rather, even if Beckett was engaged in protected activities, Atlas could have allayed its stated concerns about "tainting" a union election simply by discontinuing all meetings between Beckett and management regarding conditions of employment. Indeed, the factfinder may ultimately determine that Atlas did seek did to implement such a strategy. In any event, the cases cited by Atlas in which the NMB has found employer interference in union elections appear to involve more sustained or egregious patterns of interference than could be alleged here, see supra nn.2, 4, and none of those cases involves findings of election interference by an employer merely for failing to terminate an employee who mistakenly announces he is engaged in collective bargaining.
As to the remaining elements of his wrongful discharge claim, plaintiff has clearly demonstrated Atlas was aware of his activities, and has, at the very least, raised triable issues of fact concerning whether Atlas bore animus towards these activities and terminated him as a result. Therefore, defendant's motion for summary judgment must be denied.
II. LIMITATION OF LOST WAGES CLAIM
Atlas further seeks partial summary judgment on Beckett's claim for lost wages, on grounds he had no guarantee of employment after his sixtieth birthday, fifteen months after his termination. As stated above, FAA regulations require the disqualification of commercial pilots at that age. See 14 C.F.R. § 121.383(c). It is clear that, as a matter of law, Atlas had no obligation to find other positions for age-disqualified pilots, so long as it had no policy of doing so for pilots disqualified on other grounds. See TWA v. Thurston, 469 U.S. 111, 83 L. Ed. 2d 523, 105 S. Ct. 613 (1985) (ADEA case). Atlas claims it had no such policy, and Beckett does not dispute this. However, he claims he would have been hired by Atlas as a flight engineer or trainer upon his disqualification as a pilot, that he was given assurances of such future employment by Atlas management, and that other age-disqualified pilots continued to work at Atlas in such capacities. Plaintiff had no legal right to continued employment per se, and cannot recover for lost wages that are merely speculative. Nevertheless, whether he had a reasonable expectation of future employment, or was given assurances of such employment by Atlas, remains a question of fact. Although the parties dispute whether such assurances were actually extended to Beckett, his testimony regarding them, albeit somewhat vague, at the least raises issues of his credibility for the fact finder. Therefore, defendant's motion for partial summary judgment on this issue is denied.
III. AVAILABILITY OF PUNITIVE DAMAGES
Because the wrongful discharge cause of action has judicially been implied, the RLA obviously is silent on the issue of available remedies. In International Bhd. of Electrical Workers v. Foust, 442 U.S. 42, 60 L. Ed. 2d 698, 99 S. Ct. 2121 (1979), the Supreme Court determined that punitive damages are not available in an employee's action against a union for breach of the duty of fair representation under the RLA. In doing so, the Court looked to the underlying purposes of the statute -- promoting collective bargaining and industrial peace -- and the consequences of allowing such awards. The Court reasoned that allowing union members to receive windfall recoveries from their unions could: a) "deplete union treasuries, thereby impairing the effectiveness of unions as collective-bargaining agents," 442 U.S. 42 at 50-51; and b) undermine the grievance process by encouraging unions to "process frivolous claims or resist fair settlements" for fear of limitless exposure in subsequent lawsuits. Id. Relying on Foust, Atlas argues that punitive damages should not be available to Beckett as a matter of law.
However, the Seventh Circuit recently distinguished Foust in a case, like this one, involving a non-unionized employee's claim of wrongful discharge under the RLA. Lebow, 86 F.3d at 671-72. The court reasoned that the considerations which swayed the Foust Court are not present in this type of case:
Awarding punitive damages to non-union employees would not interfere with the collective bargaining process because there is no collective bargaining process with which to interfere. On the contrary, if an employer discharges an employee for attempting to organize a union, it is the employer that is interfering by chilling union activity. An employee cannot appeal to a union for help; his recourse is to file an individual suit, as [plaintiff] did. It is possible that if the only sanctions available are reinstatement and back pay, employers may not be sufficiently deterred from inappropriately discharging union organizers.
Id. at 672.
Several district court rulings echo Lebow's reasoning. See, e.g., Riley v. Empire Airlines, Inc., 823 F. Supp. 1016, 1021-23 (N.D.N.Y. 1993) (distinguishing cases disallowing punitive damages in RLA cases on grounds they generally relate to unionized employees); Brown v. World Airways, Inc., 539 F. Supp. 179, 181 (S.D.N.Y. 1982) (Sand, J.) ("limitation of recovery to a backpay pittance . . . might encourage such an employer to continue illegal discriminatory practices which impede efforts to unionize its employees"); Freiburger v. Emery Air Charter, 795 F. Supp. 253, 260 (N.D. Ill. 1992) (following Brown); cf. Ghartey v. St. John's Queens Hosp., 727 F. Supp. 795, 797-98 (E.D.N.Y. 1989) (Nickerson, J.) (punitive damages not available, in light of Foust, for NLRA wrongful discharge claim "inextricably intertwined" with duty of fair representation claim asserted in same action), reconsideration denied, 745 F. Supp. 125 (E.D.N.Y. 1990). But see Tipton v. Aspen Airways, Inc., 741 F. Supp. 1469, 1470-71 (D. Colo. 1990) (punitive damages not available under RLA).
In Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 66, 117 L. Ed. 2d 208, 112 S. Ct. 1028 (1992), the Supreme Court instructed that, with regard to implied statutory rights of action, "we presume the availability of all remedies unless Congress has expressly indicated otherwise." Following this directive, a number of courts have found punitive damages available in actions for wrongful or retaliatory discharge under other statutes. See Reich v. Cambridgeport Air Sys., Inc., 26 F.3d 1187 (1st Cir. 1994) (Occupational Safety and Health Act of 1970); Oldroyd v. Elmira Sav. Bank, 956 F. Supp. 393, 1997 U.S. Dist. LEXIS 887 at *9, 1997 WL 37046, at *7-9 (W.D.N.Y. 1997) (Financial Institutions Reform, Recovery, and Enforcement Act); DeLeo v. City of Stamford, 919 F. Supp. 70, 72-74 (D. Conn. 1994) (Rehabilitation Act of 1973, as amended). In light of this case law and the policy justifications articulated in Lebow, the Court concludes that punitive damages are available (although not necessarily warranted) in this RLA wrongful discharge case.
IV. RIGHT TO JURY TRIAL
The parties agree that any right to a jury trial for this implied cause of action depends solely on the interpretation of Seventh Amendment jurisprudence. The Seventh Amendment guarantees the right to trial by jury where legal, as opposed to purely equitable, rights and remedies are at issue. Chauffeurs, Teamsters & Helpers, Local 391 v. Terry, 494 U.S. 558, 564-65, 108 L. Ed. 2d 519, 110 S. Ct. 1339 (1990). While Atlas cites to a three-part test announced in Ross v. Bernhard, 396 U.S. 531, 538 n.10, 24 L. Ed. 2d 729, 90 S. Ct. 733 (1970) (status of the cause of action before merger of law and equity; nature of remedy sought; and practical ability and limitations of juries to decide issues), the more recent Terry decision appears to have dropped the last of those elements. See Wooddell v. International Bhd. of Elec. Workers, 502 U.S. 93, 97, 116 L. Ed. 2d 419, 112 S. Ct. 494 (1991) (applying two-prong test); DeLeo, 919 F. Supp. at 75-76 (same). In Terry, the Supreme Court described a two-part analysis for determining whether a cause of action sounds in law or equity:
"First, we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature." The second inquiry is more important in our analysis.
494 U.S. at 565 (quoting Tull v. United States, 481 U.S. 412, 417-18, 95 L. Ed. 2d 365, 107 S. Ct. 1831 (1987)). Once a court determines that an action "belongs in the law category," the Supreme Court directs it to inquire "whether the particular trial decision must fall to the jury in order to preserve the substance of the common-law right as it existed in 1791." Markman v. Westview Instruments, Inc., 134 L. Ed. 2d 577, 116 S. Ct. 1384, 1389 (1996).
Since collective bargaining was illegal in 18th century England, Terry at 565-66, suits alleging violation of the right to organize have no historical predecessor in the pre-merger courts of law or equity. In Terry, the Supreme Court analogized an employee's duty of fair representation claim to an action by a trust beneficiary against a trustee for breach of fiduciary duty, an historically equitable claim. 494 U.S. 558 at 566-69, 110 S. Ct. 1339, 108 L. Ed. 2d 519. The Court also found an employee's statutory claim against an employer for breach of a collective bargaining agreement comparable to a common law breach of contract claim, which is historically legal in nature. Id. at 569-70.
Applying a similar approach, the Lebow court found RLA wrongful discharge claims analogous to common-law breach of contract and tort claims, each historically legal in nature. 86 F.3d at 668-69. The court reasoned that the RLA creates, as an implied term of employment, the condition that an employee may not be terminated for engaging in union activities. Id. at 668. Thus, terminations in violation of that implied term are akin to breaches of contract. Id. Also, the court stated, the RLA defines a legal duty of employers (to allow employees to engage in union organizing) and allows tort-like actions for breach of that duty. Id. at 669; see also Reich, 26 F.3d at 1192 ("retaliatory discharge has been treated as an intentional tort"); Oldroyd, 956 F. Supp. 393, 1997 U.S. Dist. LEXIS 887, *24, 1997 WL 37046, at *9 (same).
In Maas v. Frontier Airlines, Inc., 676 F. Supp. 224, 225-26 (D. Colo. 1987), the court ruled that a RLA wrongful discharge plaintiff was not entitled to trial by jury, partly because "the claim has no common law counterpart." Id. at 226. The Maas court did not attempt to draw analogies to common law causes of action, as the Supreme Court has directed, and the Court finds Lebow's analysis more persuasive. The Seventh Circuit's analogies to common law actions, particularly the comparison with common-law tort actions, are reasonable, and mitigate in favor of finding that RLA wrongful discharge claims are analogous to pre-merger actions at law. Cf. Caputo v. National Ass'n of Letter Carriers, 730 F. Supp. 1221, 1234-36 (E.D.N.Y. 1990) (Glasser, J.) (right to jury trial exists in duty of fair representation action).
The next question, then, is whether the remedies Beckett seeks are legal or equitable in nature. In Lebow, the Seventh Circuit concluded that because "punitive damages have traditionally been viewed as a legal remedy that must be imposed by a jury," a court's determination that such damages are available in a RLA wrongful discharge case is determinative of the question of the right to jury trial. 86 F.3d at 669-70, 672 n.15 ("we cannot agree that Lebow could have a right to request punitive damages but not to demand a jury trial. . . . Because we hold that Lebow has the right to seek one form of legal relief (punitive damages), a jury trial is necessary, and we need not decide whether the other relief sought (reinstatement with back pay and benefits) qualifies as legal or equitable.").
But, in Hodges v. Virgin Atlantic Airways, 714 F. Supp. 75, 76-78 (S.D.N.Y. 1988) (Stanton, J.), the court held that an RLA wrongful discharge action seeking reinstatement and back pay was equitable in nature, and the "mere fact that plaintiffs seek punitive damages does not change the nature of their claim to a legal one." The court's statement regarding punitive damages is supported by a citation to, and extensive quotation of, Lynch v. Pan Am. World Airways, Inc., 475 F.2d 764, 765 (5th Cir. 1973). Lynch states that "unsupported allegations for . . . punitive damages [will not] alter the genre of the proceeding." Id. The Lebow court explicitly distinguished Lynch, ruling that the wrongful discharge plaintiff in that case had gone beyond "unsupported allegations" by "properly alleging the type of intentional misconduct (firing him for engaging in protected activity) for which punitive damages may be awarded." 86 F.3d at 670. Also, the Third Circuit explicitly rejected Lynch in Laskaris v. Thornburgh, 733 F.2d 260, 263-64 (3d Cir.), cert. denied, 469 U.S. 886, 83 L. Ed. 2d 196, 105 S. Ct. 260 (1984), holding that a claim for punitive damages entitles a plaintiff to trial by jury if appropriately raised in the pleadings; no specific additional facts or evidence need be presented. In this case, the Court concludes that, because punitive damages are available for this cause of action, the remedies sought are at least partially legal. Because, as stated above, the nature of the claim itself is also legal, Beckett is entitled to a jury trial.
Even if the claim for punitive damages alone were not sufficient to require a jury, Beckett also seeks compensatory damages, which are considered legal in nature, Terry, 494 U.S. at 570 (money damages are traditional form of legal relief), except to the extent this demand represents a claim for back pay which is incidental to injunctive relief such as reinstatement. See Terry, 494 U.S. at 571; Russell v. Northrop Grumman Corp., 921 F. Supp. 143, 151-53 (E.D.N.Y. 1996) (Seybert, J.); Hodges, 714 F. 635-36 (E.D.N.Y. 1982) (Neaher, J.) (42 U.S.C. § 1981 back pay claim not tied to reinstatement is legal).
For the reasons articulated above, defendant's motion for summary judgment is denied, as are its motions to limit plaintiff's claim for lost wages and to strike plaintiff's demands for punitive damages and trial by jury.
Dated: Brooklyn, New York
June 24, 1997
RAYMOND J. DEARIE
United States District Judge