Respondents Brief — Airline Service Providers Association, et al., Petitioners v. Los Angeles World Airports, et al.

R. App. 1

[Counsel contact information omitted]

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NO.

AIRLINE SERVICE

PROVIDERS ASSOCIATION COMPLAINT FOR

and AIR TRANSPORT

DECLARATORY AND

ASSOCIATION OF

INJUNCTIVE RELIEF

AMERICA, INC., d/b/a

AIRLINES FOR AMERICA, (Filed Nov. 20, 2014)

v.

LOS ANGELES WORLD

AIRPORTS, CITY OF LOS

ANGELES, and DOES 1-50,

Defendants.

Plaintiff Airline Service Providers Association

(“ASPA”), on behalf of its member airline service providers, and Plaintiff Air Transport Association Of America, Inc., d/b/a Airlines For America (“A4A”), on behalf

of its member air carriers, allege as follows:

Nature of the Action

1. This is an action for declaratory and injunctive

relief to declare unconstitutional and unenforceable

section 25 (“Section 25”) of the 2014 Certified Service

Provider License Agreement (“Current CSPLA”), adopted

and promulgated by Defendant City of Los Angeles by

order of and through its department Defendant Los

Angeles World Airports (“LAWA”), for all third-party

R. App. 2

vendors and entities providing airline services (“ASPs”)

at Los Angeles International Airport (“LAX”).1

2. Section 25, imposed by LAWA upon all ASPs

as a condition of operation at LAX, requires that ASPs

enter into agreements (“Labor Peace Agreements”)

with labor organizations which their employees have

not chosen to represent them. Although such labor organizations would have no legal authority to speak for

or negotiate on behalf of the employees, ASPs would

have to enter into Labor Peace Agreements that include terms usually found only in collective bargaining

agreements, including, among other things, a no strike

clause and mandatory arbitration for any unresolved

issues between the ASP and the labor organization.

Despite the language in Section 25 that it shall not

be construed to require any changes to employment

terms, union recognition or collective bargaining, it

cannot reasonably be implemented without doing precisely that, essentially regulating the labor relations

and bargaining tools of ASPs and the airlines’ selection

of ASPs. In so doing, Section 25 violates federal labor

laws and federal law governing the airline industry.

3. Section 25 is constitutionally infirm because it

violates the Supremacy Clause in that it is preempted

by the federal labor laws applicable to ASPs and the

1

As used herein, the term “Section 25” also encompasses and

includes any other LAWA provision that requires ASPs to enter

into Labor Peace Agreements, including but not limited to Section

3.6 of LAWA’s Certified Service Provider Program (“CSPP”),

which A4A and APSA also seek herein to declare unconstitutional

and unenforceable.

R. App. 3

Airline Deregulation Act of 1978. In addition, Section

25 is unconstitutionally vague in that men and women

of common intelligence must guess at its meaning and

proscriptions.

4. To redress irreparable harm to their rights,

Plaintiffs seek declaratory and injunctive relief.

Jurisdiction and Venue

5. This Court has jurisdiction of this action (a)

under 28 U.S.C. § 1331, because the case arises under

(i) the Supremacy Clause of the Constitution of the

United States, Article VI, clause 2; and (ii) the laws of

the United States, including the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq., the Railway

Labor Act (“RLA”), 45 U.S.C. § 151 et seq., and the

Airline Deregulation Act of 1978 (“ADA”), 49 U.S.C.

§ 41713(b)(1); and (b) under 28 U.S.C. §§ 2201 and

2202, since this is an actual controversy in which

Plaintiffs seek declaratory judgment.

6. Venue is proper in this District under 28

U.S.C. § 1391(b), because Defendants are residents of,

are found within, and have agents within, or transact

their affairs in this District, and the activities giving

rise to this action – the enactment of the unconstitutional provision – occurred in this District.

The Parties

7. Plaintiff ASPA is the principal trade organization of airport service providers retained by airlines to

R. App. 4

provide airline-related services at LAX. ASPA’s members include Air Serv Corporation, Aviation Safeguards, Calop Aeroground Services, G2 Secure Staff

LLC, Gateway Group One, Hallmark Aviation Services, L.P., Integrated Airline Services, Menzies Aviation, PLC, Pacific Aviation Corporation, SAS Airline

Services Group, Scientific Concepts, Inc., Servisair,

Swissport USA Inc., Total Airport Services Inc., US

Aviation Services and World Service West, LLC. Labor

relations of ASPA’s members – which include both unionized and non-union companies – are governed by either the RLA or the NLRA. ASPA and its members

have an interest in the consistent enforcement of unitary federal regulation of airline industry labor relations pursuant to the NLRA, RLA and ADA.

8. A4A is a nonprofit corporation organized under

the laws of the District of Columbia, with its principal

place of business in Washington, D.C. A4A advocates

for its member air carriers on issues of safety, security,

customer service, environment, energy, taxes, economic

growth, and other policies and measures relevant to

the airline industry. A4A’s members are Alaska Airlines, Inc., American Airlines Group, Inc. (American

Airlines and US Airways), Atlas Air, Inc., Delta Air

Lines, Inc., Federal Express Corporation, Hawaiian

Airlines, Inc., JetBlue Airways Corp., Southwest Airlines Co., United Continental Holdings, Inc. (United

Airlines), and United Parcel Service Co. All of A4A’s

members operate at LAX. A4A’s member air carriers

contract with ASPA members who are covered by Section 25.

R. App. 5

9. ASPA and A4A bring this action on behalf of

their members under the doctrine of representational

standing in that (a) their members would otherwise

have standing to bring this action in their own right;

(b) the interests ASPA and A4A seek to protect are

germane to their purpose; and (c) neither the claims

asserted nor the relief requested require the participation of individualized members in the action. Hunt v.

Washington State Apple Adver. Comm’n, 432 U.S. 333

(1977).

10. Defendant CITY OF LOS ANGELES (“City”)

is a municipal corporation formed under the laws of

the State of California.

11. Defendant LAWA is a proprietary department of the City of Los Angeles. LAWA owns and operates three airports, including LAX.

The Facts

A. Background

12. For decades, airlines operating out of LAX

have selected and retained ASPs to provide critical services for them at LAX. Examples of such services include, but are not limited to: aircraft fueling, aircraft

cleaning, baggage handling and sorting, pushback and

marshalling of aircraft, aircraft cooling and heating,

aircraft loading and unloading, aircraft security, ID

verification, ticket counter and gate functions, and

wheelchair services. Starting around 1985, the ASPs

working at LAX typically entered into a Non-Exclusive

R. App. 6

License Agreement (“NELA”) with LAWA that established license fees and various requirements in the

context of LAX operations.

13. Starting around 2008, numerous parties, including airline and LAWA representatives met, considered and negotiated proposed terms for a Certified

Service Provider Program License Agreement that was

intended to replace NELAs. The license was to be part

of a Certified Service Provider Program (as noted,

“CSPP”) that would establish eligibility criteria, service classifications and various monitoring and enforcement procedures for companies providing services

at LAX. After the draft CSPP had been formulated, it

was shared with both the ASPs and the Service Employees International Union (“SEIU”), which had been

attempting to organize ASP employees at LAX, with

limited success.

14. Approximately four years later, on or around

August 6, 2012, LAWA approved and adopted the

terms of a Certified Service Provider Program License

Agreement (“Original CSPLA”). The Original CSPLA

included a “Labor Harmony” provision (Section 24)

that required ASPs to “abide by the requirements of all

applicable labor laws and regulations, including the

City of Los Angeles’ Living Wage Ordinance,” or else

be subject to “progressive penalties leading up to decertification” as well as reimbursement obligations for

LAWA’s “reasonable costs”; it was scheduled to replace

NELAs around July 1, 2014. A true and correct copy of

the Original CSPLA is attached hereto as Exhibit A

and incorporated herein.

R. App. 7

15. On information and belief, sometime in the

latter half of 2013, the SEIU communicated with and

lobbied LAWA and the City in an effort to implement

a significantly different Labor Harmony provision

than the one contained in the Original CSPLA. On information and belief, for approximately six or more

months, such communications and lobbying continued,

but excluded participation or input from ASPs and the

airlines.

16. On or about March 27, 2014, LAWA presented the ASPs and the airlines with a completely rewritten Labor Harmony provision, now labeled a “Labor Peace Agreement”; the re-written provision, with

minor modification, became Section 25, the provision

at issue in this Complaint. The ASPs and airlines were

given approximately two weeks to comment on this

provision that LAWA, the SEIU and the City, on information and belief, had spent approximately seven

months crafting. After protests by ASPs and airlines,

a two-week “extension” to the comment period, until

April 25, 2014, was granted.

17. During the short period available to them,

the ASPs and airlines voiced numerous concerns, objections and questions to LAWA and the City relating

to the new, re-written Labor Peace Agreement. Despite

those concerns and questions, on or about May 5, 2014,

LAWA, through its Board of Airport Commissioners,

approved the Current CSPLA, including Section 25

thereof. Unless an ASP agrees and submits to its

terms, the ASP will not be permitted to provide airline

services at LAX. A true and correct copy of the Current

R. App. 8

CSPLA is attached hereto as Exhibit B and incorporated herein.

B. Section 25

18. Section 25 provides, among other things,

that:

25.1 Licensee shall have in place, at all required times, a labor peace agreement (“Labor

Peace Agreement”) with any organization of

any kind, or an agency or employee representation committee or plan, in which employees

participate and which exists for the purpose,

in whole or in part, of dealing with service

providers at LAX concerning grievances, labor

disputes, wages, rates of pay, hours of employment, or conditions of work (“Labor Organization”), which requests a Labor Peace

Agreement.

25.2 The Labor Peace Agreement shall include a binding and enforceable provision(s)

prohibiting the Labor Organization and its

members from engaging in the picketing, work

stoppages, boycotts, or any other economic interference for the duration of the Labor Peace

Agreement, which must include the entire

term of any CSPLA.

25.3 Licensee shall, upon LAWA’s request,

submit to LAWA a certification, signed by

Licensee and any Labor Organizations, indicating the parties have entered into a Labor

Peace Agreement.

R. App. 9

25.4 In the event that Licensee and a Labor

Organization are unable to agree to a Labor

Peace Agreement within 60 days of the Labor

Organization’s written request, they shall

submit the dispute to a mutually agreed upon

mediator to assist the parties in reaching a

reasonable Labor Peace Agreement. In the

event that Licensee and a Labor Organization

are unable to reach a reasonable Labor Peace

Agreement through mediation, the parties

shall submit the dispute to the American Arbitration Association . . .

25.5 Licensee may continue to operate at

LAX during any negotiation, mediation or arbitration related to a Labor Peace Agreement

conducted pursuant to Section 25.

25.6 In the event LAWA determines it necessary for public safety or the efficient operation of LAX to post police details or take other

actions resulting from Licensee’s violation of

Section 25 or Section 26, LAWA shall have the

authority to require that Licensee reimburse

LAWA for all reasonable costs incurred by doing so.

25.7 Nothing in Section 25 shall be construed

as requiring Licensee, through arbitration

or otherwise, to change terms and conditions

of employment for its employees, recognize

a Labor Organization as the bargaining representative for its employees, adopt any particular recognition process, or enter into a

collective bargaining agreement with a Labor

Organization.

R. App. 10

C. The Applicable Federal Statutes

RLA/NLRA

19. The provisions of Section 25 constitute an attempt by LAWA and the City to regulate labor relations of the ASPS, in violation of the RLA and/or the

NLRA, which preempt such efforts.

20. The RLA governs labor relations in the airline and railroad industries; the NLRA governs labor

relations for all other private sector employers. Both

statutory schemes provide exhaustive regulation for

labor relations, including but not limited to collective

bargaining, the selection of representation and the process for resolution of disputes.

21. Many of the ASPS are covered by the RLA;

others are covered by the NLRA. Whether an employer

is covered by the RLA or the NLRA is determined by

the National Mediation Board (“NMB”) and/or the National Labor Relations Board (“NLRB”).

22. The NMB and NLRB have exclusive jurisdiction to resolve disputes over whether and by whom

employees are represented for collective bargaining

purposes. As stated by the court in Aircraft Mechanics

Fraternal Ass’n v. United Airlines, Inc., 406 F. Supp.

492, 506 (N.D. Cal. 1976):

[A]t least where representation disputes are

concerned, the National Mediation Board has

been given complete jurisdiction under the

Railway Labor Act which is coextensive with

that of the National Labor Relations Board

R. App. 11

under the National Labor Relations Act. The

jurisdiction of both administrative bodies is

exclusive, with no power in the federal district

courts to intrude. Both bodies are empowered

to make unit (term “craft or class” under the

Railway Labor Act) determinations and to ascertain who is the true representative of the

employees and to certify that representative.

Certification entitles the representative to

exclusive status as bargaining agent, with

whom the employer must “treat” or “bargain.”

In the process of ascertaining who the true

representative is, each Board must insure

against influence or coercion being brought to

bear on the employees’ will. The methods used

and the remedies the respective boards are

authorized to prescribe to mitigate against

such unlawful influence or coercion differ significantly. But both Boards have “jurisdiction”

over the total process by which bargaining

representatives are selected.

23. Defendants may not adopt regulations that

conflict with federal labor law or that would have the

effect of regulating aspects of labor-management relations governed by those laws. State or local government actions that purport to regulate activities that

are protected, prohibited, or intentionally left unregulated by the RLA and/or NLRA are preempted. See San

Diego Bldg. Trades Council v. Garmon, 359 U.S. 236

(1959); Int’l Ass’n of Machinists v. Wisc. Employment

Rel. Comm’n, 427 U.S. 132 (1976).

24. Section 25 impermissibly intrudes into the

area of federally governed labor relations pursuant to

R. App. 12

the RLA and NLRA by requiring that an ASP enter

into a Labor Peace Agreement with any “Labor Organization” that requests one. In other words, as a condition of doing business at LAX, an ASP must agree to

negotiate and enter into a Labor Peace Agreement

with a Labor Organization that does not represent its

employees, regardless of the wishes of those employees

– and even, apparently, if the employees already have

a collective bargaining representative. The Labor Organization thus effectively would become the bargaining representative of the employees with whom the

ASP must deal without regard to the processes and requirements of the RLA and NLRA.

25. Section 25 also mandates that the Labor Peace

Agreement include a “binding and enforceable” provision

prohibiting the Labor Organization and its members

from striking or engaging in any other form of economic interference during the term of the CSPLA.

Thus, again, the Labor Organization effectively would

become the representative of the employees, without

having been certified as such by the NMB or NLRB, by

virtue of being able to negotiate over the employees’

ability to strike.

26. If the Labor Organization and ASP are unable to agree to the terms of a Labor Peace Agreement

within 60 days, the dispute must be submitted to mediation and, absent agreement, to binding arbitration

before the American Arbitration Association. In addition, although ASPs must enter into a Labor Peace

Agreement with any Labor Organization that requests

one, there is no corresponding obligation on the part of

R. App. 13

a Labor Organization to request a Labor Peace Agreement (and thus agree to a no-strike provision), or to

honor a request by an ASP to enter into a Labor Peace

Agreement.

27. These provisions, alone and in combination,

impermissibly tilt the playing field between labor and

management by giving enormous leverage to the Labor

Organizations in dealing with ASPs. It is wholly within a Labor Organization’s discretion whether to seek

a Labor Peace Agreement (with its concomitant nostrike provision) in the first place, and an ASP has no

ability to do so, even in the face of a potential strike,

picketing or other form of job action.

28. In those cases when a Labor Organization

has requested a Labor Peace Agreement, it still would

hold all the cards because the ASP must obtain a binding and enforceable no-strike provision, allowing the

Labor Organization to withhold its agreement to such

a provision unless and until it obtains significant concessions, either through negotiation, mediation or arbitration.

29. Finally, Section 25 does not appear to provide

any sanction against a Labor Organization that violates a no-strike provision entered into as part of a Labor Peace Agreement. An ASP, on the other hand, faces

the imposition of costs and other penalties – including

the possibility of losing its right to do business at LAX

altogether – associated with such a strike should Defendants conclude that the ASP violated Section 25 by

R. App. 14

failing to obtain a no-strike provision that was “binding and enforceable.”

30. For these reasons, Section 25 is preempted by

the RLA and NLRA and, therefore, is unenforceable.

ADA

31. Section 25 also violates the provisions of the

ADA, now codified at 49 U.S.C. §41713(b)(1), which expressly provide that the States and local governments

“may not enact or enforce a law, regulation or other

provision having the force and effect of law, related to

a price, route or service of an air carrier.”

32. The Congress of the United States was explicit about its intentions in enacting the pre-emption

provisions of the Airline Deregulation Act, i.e. to “prevent conflicts and inconsistent regulations.” H. Report

No, 95-1211 at 16. The Supreme Court in Morales v.

Trans World Airlines, Inc., 504 U.S. 374, 383 (1992),

held that the use of the words “related to” in the

preemption provisions of the ADA “express a broad

pre-emptive purpose” and prohibit all state laws “relating to” the rates, routes or services of an air carrier.

Indeed, Congress expressly endorsed the holding in

Morales in 1994 when it reenacted the recodified Title

49 into positive law, noting that it “did not intend to

alter the broad preemption interpretation adopted by

the United States Supreme Court in Morales.” H.R.

Conf. Rep. No. 103-677 at p. 83 (1994).

R. App. 15

33. The preemption clause of the ADA reflects the

long-standing federal policy of preempting the field of

aviation regulation. As Justice Jackson recognized in

the early days of commercial aviation:

Congress has recognized the national responsibility for regulating air commerce. Federal

control is intensive and exclusive. Planes do

not wander about in the sky like vagrant

clouds. They move only by federal permission,

subject to federal inspection, in the hands of

federally certified personnel and under an intricate system of federal commands. The moment a ship taxies onto a runway it is caught

up in an elaborate and detailed system of controls. It takes off only by instruction from the

control tower, it travels on prescribed beams,

it may be diverted from its intended landing,

and it obeys signals and orders. Its privileges,

rights, and protection, so far as transit is concerned, it owes to the Federal Government

alone and not to any state government.

Northwest Airlines, Inc., v. State of Minnesota, 322 U.S.

292, 303 (1944) (J. Jackson, concurring).

34. Thus, “[t]he ADA’s preemption clause . . . stops

States from imposing their own substantive standards

with respect to rates, routes, or services.” American

Airlines, Inc. v. Wolens, 513 U.S. 219, 232 (1995). In

Wolens, the Supreme Court specifically noted the

“potential for intrusive regulation of airline business

practices inherent in state consumer protection legislation.” Id. at 227-8.

R. App. 16

35. Section 25 violates the preemption clause of

the ADA because it is a regulation directly and substantially related to and connected with air carrier services. The Supreme Court recently clarified that the

term “services” under the ADA encompasses precisely

the kinds of services regulated by the Current CSPLA,

such as boarding procedures, baggage handling, and

food-and-drink matters incidental to and distinct from

the actual transportation of passengers. Northwest,

Inc. v. Ginsberg, 134 S. Ct. 1422, 1425 (2014); see also

Travel All Over the World, Inc. v. Kingdom of Saudi

Arabia, 73 F.3d 1423, 1433 (7th Cir.1996).

36. The ASPs provide critical services to the

airlines, such as aircraft fueling, aircraft cleaning,

baggage sorting and ramp handling, aircraft cooling

and heating, aircraft loading and unloading, on-board

catering of food and beverage, aircraft security, ID verification, ticket counter and gate functions, and wheelchair services. As noted, these services fall within the

definition of “services” under the ADA. Section 25 will

directly impact and regulate service providers at LAX

and thus directly impact the airlines’ selection of ASPs,

the provision of airline services at LAX, and the cost of

such services. As such, and in accordance with clear

Supreme Court precedent, Section 25 is preempted by

the ADA.

37. Moreover, Section 25 is not a provision or law

of general applicability which has only an incidental

effect on air carriers. Rather, it is aimed exclusively

and solely at entities which provide airline services for

airlines, with the express purpose and direct effect of

R. App. 17

regulating and selecting which ASPs may and may not

be retained by airlines. Indeed, such entities encompass airlines themselves: on information and belief,

three non-U.S. airlines which provide airline services

to other airlines have been forced to sign the current

CSPLA as a condition of providing such services at

LAX. Section 25 therefore constitutes a direct and prohibited attempt to regulate the services of an air carrier. Morales, 504 U.S. at 383-84 (the meaning of the

phrase “related to” includes laws that have a “connection with” a service).

Unconstitutional Vagueness

38. Section 25 violates the constitutional requirement of due process in that it does not properly

distinguish conduct which is permissible from that

which is impermissible. It is unconstitutionally void

for vagueness because it does not clearly distinguish

conduct which is unlawful from that which is lawful.

39. The following terms, purported definitions or

phrases render Section 25 void for vagueness: the term

“Labor Peace Agreement,” the definition of “Labor

Organization,” the phrase “arbitration conducted in accordance with the AAA rules,” and the term “reasonable Labor Peace Agreement.”

40. The terms “Labor Peace Agreement” and

“reasonable Labor Peace Agreement,” beyond the requirement that such an agreement prohibit a Labor

Organization and its members from engaging in the

picketing, work stoppages, boycotts, or any other

R. App. 18

economic interference for its duration, is subject to

broad and unreasonable interpretation and could include anything demanded by any party at any time

that is not facially inconsistent with Section 25.7.

41. The definition of “Labor Organization” as constituting “any organization of any kind, or an agency or

employee representation committee or plan, in which

employees participate and which exists for the purpose, in whole or in part, of dealing with service providers at LAX concerning grievances, labor disputes,

wages, rates of pay, hours of employment, or conditions

of work” is subject to broad and unreasonable interpretation and could include or exclude any kind of person

or entity claiming or seeking to represent workers.

42. The phrase “arbitration conducted in accordance with the AAA rules” is subject to broad and unreasonable interpretation in that the AAA has different sets

of rules, including but not limited to those dealing with

binding arbitration, non-binding arbitration and labor

matters.

43. Nor does the Current CSPLA contain provisions explaining how Section 25 is to be interpreted or

implemented; some examples of missing terms include

but are not limited to:

a.

Who would bear the costs of the mediation and arbitration procedures discussed

in Section 25;

b.

Which of the different sets of rules of the

American Arbitration Association would

R. App. 19

apply to the arbitration contemplated by

Section 25;

c.

What specific terms of a Labor Peace

Agreement would be considered standard

or acceptable to LAWA in the event arbitration failed to resolve any dispute between an ASP and a Labor Organization;

d.

Whether an ASP would be bound by Section 25 if a Labor Organization did not

honor the terms applicable to it;

e.

If and how a penalty would be assessed

towards an ASP from alleged non-compliance

with Section 25;

f.

Whether there would be any penalty

against a Labor Organization, its members, and/or ASP employees that violated

a no-strike provision in a Labor Peace

Agreement;

g.

Whether an ASP would be obligated to

enter into multiple Labor Peace Agreements if asked to do so by more than one

Labor Organization;

h.

Whether a Labor Organization could request a Labor Peace Agreement from an

ASP whose employees already had a collective bargaining representative.

D. Imminent Harm

44. All ASPs seeking to provide services at LAX

must agree to the Current CSPLA, including Section

R. App. 20

25. If an ASP refuses to sign the Current CSPLA it

will lose its right to do business at LAX. A4A’s member

airlines would also be damaged by such loss of certification because competition among ASPs would be diminished; the airlines would have fewer ASPs from

which to select; and the cost of the services provided

would increase.

45. Alternatively, if ASPs submit to Section 25

but fail to reach an agreement with a “Labor Organization” containing the conditions mandated by LAWA,

they would be similarly subject to decertification and

the loss of the right to be retained by airlines. And, if

an ASP is forced to enter a Labor Peace Agreement, the

Labor Organization would of course seek something in

return, altering the terms of employment for the ASP’s

employees, and increasing costs to the ASP and the airlines.

46. Thus, the members of A4A and ASPA will

suffer injury if enforcement of Section 25 is not enjoined. As in Morales, ASPA’s members here are “faced

with a Hobson’s choice: continually violate [state] law

and expose themselves to potentially huge liability; or

violate the law once as a test case and suffer the injury

of obeying the law during the pendency of the proceedings and any further review.” Airlines will suffer because there will be uncertainty over whether any

particular ASP will be certified to do business at LAX;

airlines will have fewer ASPs with which to contract;

and the cost of services will increase. Further, the

ability of the air carrier members of A4A to provide

efficient service to the traveling public would be

R. App. 21

undermined, rather than enhanced, if airline services

are to be subject to multiple forms of regulation at the

hundreds of airports in the nation.

47. Plaintiffs’ members have no adequate remedy at law. If an injunction is granted, the Defendants

will not suffer any cognizable harm. Defendants cannot claim injury from an order compelling them to comply with preexisting Federal law. Far greater injury

will be inflicted upon the members of the Plaintiffs,

their employees and the traveling public by the refusal

to grant the relief sought herein than Defendants will

suffer by the grant of the declaratory and injunctive

relief requested.

Count One

Violation of the National Labor Relations Act

and the Railway Labor Act (Preemption)

(Against all Defendants)

48. Plaintiffs repeat and reallege paragraphs 1

through 47 of this Complaint as though fully set forth

herein.

49. The provisions of Section 25 are invalid and

unenforceable because they are preempted by the RLA

and NLRA and therefore unconstitutional pursuant

to the Supremacy Clause of the Constitution of the

United States, Article VI.

R. App. 22

Count Two

Violation of the Airline

Deregulation Act of 1978 (Preemption)

(Against all Defendants)

50. Plaintiffs repeat and reallege paragraphs 1

through 47 of this Complaint as though fully set forth

herein.

51. The provisions of Section 25 are invalid and

unenforceable because they violate the express preemption provisions of the Airline Deregulation Act of

1978, now codified at 49 U.S.C. §41713(b)(1), and therefore unconstitutional pursuant to the Supremacy Clause

of the Constitution of the United States, Article VI.

Count Three

Due Process (Void for Vagueness)

(Fifth and Fourteenth Amendments

of the United States Constitution)

(Against all Defendants)

52. Plaintiffs repeat and reallege paragraphs 1

through 47 of this Complaint as though fully set forth

herein.

53. Anyone of reasonable intelligence must necessarily guess what conduct is permitted or prohibited

under Section 25.

54. Section 25 is impermissibly vague in all of its

applications, in violation of the Fifth and Fourteenth

Amendments to the United States Constitution.

R. App. 23

Prayer for Relief

WHEREFORE, Plaintiffs ASPA and A4A, on behalf of their respective members, pray that this Court:

1. Issue a Declaratory Judgment that Section

25 (and any other LAWA provision that requires ASPs

to enter into Labor Peace Agreements) is invalid and

unenforceable because it is pre-empted by the Constitution and laws of the United States and is impermissibly vague; and

2. Issue a preliminary injunction, the same to be

made permanent on final judgment:

A. Restraining and enjoining the Defendants, their agents and employees, and all persons acting in concert or participation with

them, from, in any manner or by any means,

enforcing or seeking to enforce the provisions

of Section 25 and any other LAWA provision

that requires ASPs to enter into Labor Peace

Agreements, determined by this Court to be

invalid, pre-empted by federal law and impermissibly vague;

B. Requiring the Defendants to issue such

notices, and take such steps as shall be necessary and appropriate to carry into effect the

substance and intent of paragraph “A” above,

including but not limited to, the requirement

that Defendants publicly withdraw and rescind any directions, requests or suggestions

to any ASP that it is bound by or must be

bound by Section 25 and any other LAWA provision that requires ASPs to enter into Labor

R. App. 24

Peace Agreements, determined by this Court

to be invalid, pre-empted by federal law and

impermissibly vague; and

C. Grant such other, further or different relief as to which the Plaintiffs may be entitled.

Dated: November 20, 2014

Matthew P. Kanny

MANATT, PHELPS &

PHILLIPS, LLP

By: /s/ Matthew P. Kanny

Attorneys for Plaintiff

AIRLINE SERVICE

PROVIDERS

ASSOCIATION

Dated: November 20, 2014

Robert S. Span

Douglas R. Painter

STEINBRECHER &

SPAN LLP

Douglas W. Hall

(pro hac vice app. pending)

FORD & HARRISON LLP

By: /s/ Douglas R. Painter

Attorneys for Plaintiff

AIR TRANSPORT ASSOCIATION OF

AMERICA, INC.,

d/b/a AIRLINES

FOR AMERICA

[Exhibits A and B to Complaint omitted]