International Association of MacHinists & Aerospace Workers, Afl-Cio (Iam), Iam District Lodge 143 v. Northwest Airlines, Inc.

LAY, Chief Judge,

dissenting.

I respectfully dissent. I cannot join the majority opinion for several reasons:

(1) Its analysis is without any support in law or fact.

(2) It ignores without discussion the law governing successor representation under the RLA.

(3) It wrongly concludes that IAM is bound by the Transition Agreement between BRAC and NWA to which IAM was not a signatory party; such a conclusion violates basic principles of law.

(4) It creates a false issue of contract interpretation where none exists.

(5) It legally treats without analysis the ALEA contract to be the same as the BRAC contract when the two contain provisions which are completely different.

(6) It totally miscomprehends the procedural mechanism relating to unilateral changes of working conditions under the RLA.

On May 12, 1987, after the Republic-Northwest merger, IAM won a run-off election and, as a result, was certified as the sole representative for the classes of employees represented in this suit. It is undisputed that IAM and NWA have never entered into any kind of transition agree *1125 ment. However, both parties agree that IAM is bound by and does continue to administer the old BRAC (Green Book) and ALEA (Orange Book) collective bargaining agreements. IAM and NWA are bound by these agreements not by reason of any pre-existing transition agreement but by operation of law. 1

By reason of the election and certification there is no question that IAM succeeds and becomes the representative union administering the old collective bargaining agreements. The Orange Book speaks of ALEA as the union and the Green Book denotes BRAC as the representative union. Upon election and certification IAM was simply substituted as the sole representative under those agreements in place of both ALEA and BRAC. This substitution is not operative because of the agreements; succession as bargaining representative is made expressly mandatory by reason of IAM’s election and certification. IAM succeeds ALEA and BRAC by operation of law and no terms or obligations under the contracts are changed.

The National Mediation Board has recognized this proposition in these terms:

When there is an agreement in effect between a carrier and its employees signed by one set of representatives and the employees choose new representatives who are certified by the Board, the Board has taken the position that a change in representation does not alter or cancel any existing agreement made in behalf of the employees by their previous representatives.

The First Annual Report of the National Mediation Board at 23-24 (1935) (II Joint Appendix at 312-13) (emphasis added). The Board later expanded upon that statement:

The only effect of a certification by the Board is that the employees have chosen other agents to represent them in dealing with the management under the existing agreement. * * * Conferences must then be held to agree on [any desired] changes exactly as if the original representatives had been continued. The purpose of such a policy is to emphasize a principle of the Railway Labor Act that agreements are between the employees and the carrier, and that the change of an employee representative does not automatically change the contents of an agreement. The procedures of section 6 of the Railway Labor Act are to be followed if any changes in agreements are desired.

Forty-Second Annual Report of the National Mediation Board at 39 (1976) (II Joint Appendix at 315) (emphasis added).

As stated by the Fifth Circuit Court of Appeals: “If the employees designate a new collective bargaining representative, it succeeds to the status of the former representative without alteration in the contract terms.” International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Am. (Airline Division) v. Texas Int’l Airlines, Inc., 717 F.2d 157, 163 (5th Cir.1983). NWA asserts, however, that the Green Book expressly limits dues check-off to the period when BRAC represented the employees. IAM urges in part that section 13 of the Transition Agreement must be read as substituting IAM for BRAC throughout the Green Book and therefore the carrier’s obligations do not cease. The district court in part adopted this analysis, stating that there is no susceptible reading of the two agreements that allows NWA to cease the dues check-off. NWA responds that if the contract is reasonably susceptible to two interpretations, then the dispute becomes a minor one and must go to arbi *1126 tration. If NWA is correct in urging that resolution of the dispute depends upon the interpretation of the agreements then clearly the dispute is a minor one. Elgin, Joliet & E. Ry. Co. v. Burley, 325 U.S. 711 , 65 S.Ct. 1282 , 89 L.Ed. 1886 (1945). However, in this approach, NWA creates a misleading issue. The necessity to read the contracts is not equivalent to interpreting them, and does not in itself transform a major dispute into a minor one.

The Orange Book does not contain a clause limiting dues check-off only for ALEA. There is no limitation in the Orange Book as contained in the Green Book. The majority in footnote 4, although admitting the Green Book’s “drop dead” clause is not contained in the Orange Book (the old ALEA contract), nonetheless finds that “similar considerations” govern the analysis of both agreements. This is absurd. There exists no cessation clause in the Orange Book. IAM simply succeeds to the representative state of ALEA and is substituted for ALEA throughout that agreement. The majority’s reasoning would allow NWA to void the entire agreement or whatever part it chooses because IAM is not the union originally designated or defined in the preamble of the Orange Book. This clearly is not the law and such analysis ignores the entire purpose and spirit of the RLA. 2 IAM was not even a party to the Transition Agreement between BRAC and NWA. Nonetheless, as previously stated, NWA and IAM are obligated to continue the terms of the Green and Orange Books, not by agreement but by operation of law. Under such circumstances no cessation of the existing terms of the agreements affecting working conditions may be unilaterally implemented by either party until the mediation procedures under section 6 of the RLA have been exhausted.

In this regard Manning v. American Airlines, Inc., 329 F.2d 32 (2d Cir.), cert. denied, 379 U.S. 817 , 85 S.Ct. 33 , 13 L.Ed.2d 29 (1964) succinctly states another controlling principle. Manning involved a dues check-off clause that by its terms expired on April 30, 1963, unless renewed by mutual agreement between the union and the carrier. The rest of the collective bargaining agreement renewed automatically unless written notice was given as provided under section 6 of the RLA. On May 1, 1963, the carrier discontinued dues check-off. The Second Circuit held that if the carrier were permitted to discontinue dues check-off under the terms of the contract, then the parties to a collective bargaining agreement could completely avoid the effects of section 6 of the RLA. That court had no difficulty in concluding that dues check-off constituted a working condition within section 6. Judge Friendly reasoned: “The purpose of § 6 was to prevent rocking of the boat by either side until the procedures of the Railway Labor Act were exhausted; interpreting ‘working conditions’ to include an agreed check-off accomplishes that purpose better than a narrower construction.” Id. at 35. Judge Friendly also stated that when working conditions are involved, “[t]he effect of § 6 is to prolong agreements subject to its provisions regardless of what they say as to termination.” Id. at 34.

*1127 Thus, I must conclude that continuation of working conditions (union dues check-off and union security provisions) during the notice and mediation provisions of the RLA is not governed by the purported limitation of dues check-off and union security to the predecessor union by contract interpretation, but by reason of the RLA itself.

Section 6 of the Railway Labor Act, 45 U.S.C. § 156 , sets forth the procedures to be followed to effect a change of rates of pay, rules, or working conditions. “The objective of the Railway Labor Act is continuance of the status quo until the statutory procedures of the Act have been exhausted.” United Indus. Workers of the Seafarers Int’l Union of N. Am. v. Board of Trustees of Galveston Wharves, 400 F.2d 320, 329 (5th Cir.1968) (footnote omitted), ce rt. denied, 395 U.S. 905 , 89 S.Ct. 1747 , 23 L.Ed.2d 219 (1969). “The term ‘working conditions’ is to be broadly interpreted.” Independent Fed’n of Flight Attendants v. Trans World Airlines, Inc., 655 F.2d 155, 157 (8th Cir.1981). This court, as well as the courts of other circuits, has found that working conditions include both union security and dues checkoff provisions. See, e.g., Trans World Airlines, Inc. v. Independent Fed’n of Flight Attendants, 809 F.2d 483 (8th Cir.1987) (union security and dues check-off) aff'd per curiam by an equally divided court, — U.S. —, 108 S.Ct. 1101 , 99 L.Ed.2d 150 (1988); Manning v. American Airlines, Inc., 329 F.2d 32 (2d Cir.) (dues check-off), cert. denied, 379 U.S. 817 , 85 S.Ct. 33 , 13 L.Ed.2d 29 (1964).

Judge Magill ignores this entire body of law. The rule in all of these cases comports with the universal principle that federal district courts may issue injunctions to preserve the status quo of working conditions even though the agreements have expired by their own terms. Brotherhood of Railway, Airline and Steamship Clerks v. REA Express, Inc., 523 F.2d 164, 168 (2d Cir.), cert. denied, 423 U.S. 1017 , 96 S.Ct. 451 , 46 L.Ed.2d 388 (1975); United Indus. Workers of the Seafarers Int’l Union of N. Am. v. Board of Trustees of Galveston Wharves, 351 F.2d 183 , 190 n. 26 (5th Cir.1965).

In Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142 , 90 S.Ct. 294 , 24 L.Ed.2d 325 (1969) the Supreme Court defined the status quo provisions of the RLA that govern here. The Court said:

There are three status quo provisions in the Act, each covering a different stage of the major dispute settlement procedures. Section 6, the section of immediate concern in this case, provides that “rates of pay, rules, or working conditions shall not be altered” during the period from the first notice of a proposed change in agreements up to and through any proceedings before the National Mediation Board. Section 5 First provides that for 30 days following the closing of Mediation Board proceedings “no change shall be made in the rates of pay, rules, or working conditions or established practices in effect prior to the time the dispute arose,” unless the parties agree to arbitration or a Presidential Emergency Board is created during the 30 days. Finally, § 10 provides that after the creation of an Emergency Board and for 30 days after the Board has made its report to the President, “no change, except by agreement, shall be made by the parties to the controversy in the conditions out of which the dispute arose.” These provisions must be read in conjunction with the implicit status quo requirement in the obligation imposed upon both parties by § 2 First, “to exert every reasonable effort” to settle disputes without interruption to interstate commerce. 3

*1128 Id. at 150-51, 90 S.Ct. at 299-300 (some footnotes omitted).

Because the dues check-off and union security provisions are working conditions, they must be maintained pending completion of the procedures contemplated in section 6 of the RLA. Issuance by the district court of an injunction is proper to maintain the working conditions. I conclude NWA’s unilateral attempt to change those conditions under the contracts is impermissible without compliance with section 6 of the RLA. 4

. The Transition Agreement entered into between BRAC and NWA on July 13, 1986, provides that it would be binding on any successor labor union. Judge Magill finds a need to interpret this Transition Agreement along with the Green Book in order to support his "minor dispute" premise. This is an irrational straw man. The old BRAC-NWA Transition Agreement is totally immaterial and irrelevant to this case. To suggest otherwise violates basic contract principles. IAM was not a party to that agreement and BRAC and NWA could not bind IAM to any terms without IAM’s consent. NWA tried to obtain a separate transition agreement with IAM but it did not succeed. Thus, the majority’s basic assumption of contract interpretation is fallacious.

. As Judge Bright succinctly stated recently in Trans World Airlines, Inc. v. Independent Fed’n of Flight Attendants, 809 F.2d 483 (8th Cir.1987) aff'd per curiam by an equally divided court, — U.S. —, 108 S.Ct. 1101 , 99 L.Ed.2d 150 (1988):

Congress, in enacting these detailed procedures, sought “to encourage collective bargaining by railroads and their employees in order to prevent, if possible, wasteful strikes and interruptions of interstate commerce." Detroit & Toledo Shore Line R.R., 396 U.S. [142] at 148, 90 S.Ct. [294] at 298 [ 24 L.Ed.2d 325 (1969) ] (footnote omitted). This detailed statutory scheme has bargaining as its major thrust. At the same time, it seeks to avoid any interruption in commerce. Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 377-78 , 89 S.Ct. 1109, 1114-15 , 32 L.Ed.2d 344 (1969). The Act attempts to provide the parties with every opportunity to resolve their labor disputes through bargaining and negotiation.

Id. at 486 .

The majority’s analysis in this case would, if adopted, radically defeat the purpose of the mechanisms under the RLA and cause self-help and disastrous interruptions of commerce whenever there was a change of the certified representative following a merger of two carriers. Surely Congress did not intend such a result.

. As stated in the RLA:

It shall be the duty of all carriers, their officers, agents, and employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.

45 U.S.C. § 152 First (quoted in Shore Line, 396 U.S. at 151 n. 18, 90 S.Ct. at 300 n. 18).

. IAM asserts that this case is moot, because the district court stated that the injunction was to cease on August 5, 1987, as to all employees who did not complete a new authorization card for dues check-off. I disagree. At oral argument it was conceded that over eighty percent of the relevant employees had in fact filled out the cards. Thus, at least as to them, the district court's injunction still exists.