Petition for Writ of Certiorari — Flight Options, LLC, et al., Petitioners v. International Brotherhood of Teamsters, Local 1108, et al.

Supreme Court briefNov 16, 2017

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No. 17-___

IN THE

FLIGHT OPTIONS, LLC, FLEXJET, LLC, ONE SKY FLIGHT,

LLC AND FLIGHT OPTIONS HOLDINGS, I, INC.

Petitioners,

v.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AIRLINE

DIVISION AND TEAMSTERS LOCAL UNION 1108,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

W. Chris Harrison

Counsel of Record

Zachary W. Hoyt

OGLETREE, DEAKINS,

NASH, SMOAK &

STEWART, P.C.

6410 Poplar Ave.

Suite 300

Memphis, TN 38119

(901) 767-6160

chris.harrison@odnss.com

zach.hoyt@odnss.com

QUESTION PRESENTED

In Consolidated Rail Corp. v. Railway Labor

Executives Ass’n, 491 U.S. 299 (1989) (“Conrail”), this

Court held that disputes over the interpretation of

collective bargaining agreements governed by the

Railway Labor Act must be arbitrated so long as the

interpretation of the contract by the party seeking

arbitration is “arguably justified” and not “frivolous”

or “obviously insubstantial.” Id. at 306-07. This Court

further held that this is a “relatively light” burden

that may be based on both implied and express terms

of the contract. Id. at 311-12.

The question presented here is: Whether the

Sixth Circuit’s decision below conflicts with this

Court’s Conrail decision and the broader body of

Railway Labor Act precedent given that the Sixth

Circuit classified a labor dispute arising from

differing interpretations of ambiguous contract terms

as a “major dispute” and enjoined the Petitioners to

either accept the Union’s interpretation or arbitrate

the dispute.

ii

RULE 29.6 STATEMENT

The parent company of Flight Options, LLC is

One Sky Flight, LLC, which is privately held. No

public company holds 10 percent or more of the stock

of the Flight Options, LLC.

The parent company of Flexjet, LLC is One Sky

Flight, LLC. No public company holds 10 percent or

more of the stock of the Flexjet, LLC.

The parent company of One Sky Flight, LLC is

Flight Options Holdings I, Inc. (now known as Epic

Aero, Inc.). No public company holds 10 percent or

more of the stock of the One Sky Flight, LLC.

The is no parent company of Flight Options

Holdings I, Inc. (now known as Epic Aero, Inc.) and

no public company holds 10 percent or more of the

stock of Flight Options Holdings, I, Inc.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

RULE 29.6 STATEMENT ........................................... v

TABLE OF AUTHORITIES ........................................ v

PETITION FOR A WRIT OF CERTIORARI .............. 1

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

RELEVANT STATUTORY PROVISIONS ................. 1

STATEMENT OF THE CASE..................................... 1

I.

Statutory Background ........................................... 3

II. Procedural History ................................................ 8

REASONS FOR GRANTING THE WRIT ................ 15

I.

The Sixth Circuit’s Decision Conflicts With

Conrail and Misconstrues the Issues ................. 16

II. The Question Presented is Important and

Recurring thus the Sixth Circuit’s Decision

Disrupts the Carefully Crafted Structure of

Disputes Under the Railway Labor Act. ............ 24

CONCLUSION .......................................................... 32

APPENDIX ............................................................... 1a

Appendix A, Court of Appeals Decision ......... 1a

Appendix B, District Court’s Decision ......... 32a

Appendix C, Order Denying Rehearing ....... 57a

Appendix D, Excerpts from the Railway

Labor Act ....................................................... 59a

iv

Appendix E, Declaration of Robert

Sullivan ......................................................... 72a

Appendix F, Excerpts from 2010 Flight

Options CBA.................................................. 80a

v

TABLE OF AUTHORITIES

CASES

PAGE(S)

Air Line Pilots Ass’n v. E. Air Lines,

869 F.2d 1519 (D.C. Cir. 1989) ........................... 27

Air Lines Pilots Ass’n v. United Air Lines,

802 F.2d 886 (7th Cir. 1986) .................................. 7

Air Line Pilots Ass’n, Int’l v. Guilford Transp.

Indus.,

399 F.3d 89 (1st Cir. 2005) ................................. 26

Am. Tradition P’ship v. Bullock,

132 S. Ct. 2490 (2012)......................................... 30

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986)....................................... 30, 31

Andrews v. Louisville & N.R.R. Co.,

406 U.S. 320 (1972)............................................. 25

Ass’n of Flight Attendants v. Horizon Air Indus.,

Inc.,

280 F.3d 901 (9th Cir. 2002)............................... 27

AT&T Technologies, Inc. v. Communications

Workers,

475 U.S. 643 (1986)............................................. 26

Bhd of R.R Trainmen v. Toledo, Peoria & W.

R.R.,

321 U.S. 50 (1944)................................................. 7

Bhd of R.R. Trainmen v. Chicago River & Ind.

R.R.,

353 U.S. 30 (1957)........................................... 4, 26

vi

TABLE OF AUTHORITIES

(continued)

Bhd of R.R. Trainmen v. Terminal Co,

394 U.S. 369 (1969)............................................... 7

Bhd. of Locomotive Eng’rs Div. 269 v. Long

Island R.R.,

85 F.3d 35 (2d Cir. 1996) .................................... 27

Bhd. of Locomotive Engineers v. Louisville &

N.R.R. Co.,

373 U.S. 33 (1963)............................................... 25

Bhd. of Maintenance of Way Employes Div. v.

Norfolk S. Ry. Co.,

745 F.3d 808 (7th Cir. 2014)............................... 26

Bhd. of Maintenance of Way Employes Div. v.

Burlington Northern Santa Fe Ry. Co.,

596 F.3d 1217 (10th Cir. 2010)........................... 26

Burlington Northern R.R. Co. v. Bhd. of

Maintenance of Way Employes,

481 U.S. 419 (1987)......................................... 4, 24

Caetano v. Massachusetts,

136 S. Ct. 1027 (2016)......................................... 30

Chicago & N.W. Ry. v. United Transp. Union,

402 U.S. 570 (1971)............................................... 7

Consolidated Rail Corp.. v. Railway Labor

Execs. Ass’n,

491 U.S. 299 (1989)..................................... passim

vii

TABLE OF AUTHORITIES

(continued)

CSX Transp., Inc. v. Bhd. of Maintenance of

Way Employes,

327 F.3d 1309 (11th Cir. 2003)........................... 26

District of Columbia v. Heller,

554 U.S. 570 (2008)............................................. 30

Elgin, J. & E. Ry. Co. v. Burley,

325 U.S. 711 (1945)............................................... 6

Flight Options, LLC v. Int’l Bhd. of Teamsters,

Local 1108,

No. 1:16-CV-00732, 2017 WL 1173143 (N.D.

Ohio Mar. 30, 2017) ............................................ 26

Gunther v. San Diego & E. Ry. Co.,

382 U.S. 257 (1965)............................................. 18

Hawaiian Airlines, Inc. v. Norris,

512 U.S. 246 (1994)........................................... 3, 5

Int’l Bhd. of Teamsters v. Southwest Airlines

Co.,

875 F.2d 1129 (5th Cir. 1989)............................. 27

Int’l Ass’n of Machinists v. Central Airlines,

372 U.S. 682 (1963)........................................... 3, 4

Jenkins v. Hutton,

137 S. Ct. 1769 (2017)......................................... 30

Order of R.R. Telegraphers v. Chicago & N.W.

Transp. Co.,

362 U.S. 330 (1960)............................................... 7

viii

TABLE OF AUTHORITIES

(continued)

Shore Line R.R. Co v. Transportation Union,

396 U.S. 142 (1969)............................................... 6

Southeastern Penn. Transp. Auth. v. Bhd. of

R.R. Signalmen,

882 F.2d 778 (3d Cir. 1989) ................................ 27

Texas & New Orleans R.R. v. Bhd. of Ry. Clerks,

281 U.S. 548 (1930)............................................... 7

Tolan v. Cotton,

134 S. Ct. 1861 (2014)......................................... 30

Union Pac. R.R. Co. v. Sheehan,

439 U.S. 89 (1978)................................................. 5

Union Pac. R.R. Co. v. Bhd. of Locomotive

Engineers and Trainmen,

558 U.S. 67 (2009)............................................... 25

Union Pac. R.R. Co. v. Price,

360 U.S. 601 (1959)............................................. 25

United Steelworkers v. Am. Mfg. Co.,

363 U.S. 564 (1960)............................................. 26

United Transp. Union v. Cuyahoga Valley Ry.

Co.,

979 F.2d 431 (6th Cir. 1992)................................. 3

United Transp. Union v. Kansas City Sou. Ry.

Co.,

172 F.3d 582 (8th Cir. 1999)............................... 27

ix

TABLE OF AUTHORITIES

(continued)

United Transp. Union v. South Carolina Public

Ry. Comm’n,

130 F.3d 627 (4th Cir. 1997)............................... 27

Wheeling & Lake Erie Ry. Co. v. Bhd. of

Locomotive Engineers & Trainmen,

789 F.3d 681 (6th Cir. 2015)......................... 21, 27

Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7 (2008)................................................. 28

STATUTES

28 U.S.C. § 1254(1) ..................................................... 1

28 U.S.C. § 1292(a)(1) ............................................... 13

45 U.S.C. § 155............................................................ 6

45 U.S.C. § 160............................................................ 7

45 U.S.C. §159............................................................. 4

49 U.S.C. § 42112 ........................................................ 7

McCaskill-Bond Statute, 49 U.S.C. § 42112 ..... passim

Norris-LaGuardia Act, 29 U.S.C. § 101, et seq. . 25, 28

Railway Labor Act, 45 U.S.C. ........................... passim

OTHER AUTHORITIES

Allegheny-Mohawk Labor Protective

Provisions ....................................................... passim

Edwin E. Witte, The Government in Labor

Disputes (1932) ....................................................... 3

x

TABLE OF AUTHORITIES

(continued)

Jerman & Joshi, Seniority Integration in Airline

Mergers: The Intended & Unintended

Consequences of the McCaskill-Bond Statute,

25 Air & Space Law. (No. 2 2012) .......................... 9

Stern & Gressman, Supreme Court

Practice (10th ed. 2013) ........................................ 30

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully petition for a writ of

certiorari to review the judgment of the United

States Court of Appeals for the Sixth Circuit.

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Sixth Circuit (Pet. App. 1a) is

published at 863 F.3d 529. The district court’s

decision dated May 25, 2016 (Pet. App. 32a) is

unpublished.

JURISDICTION

The Court of Appeals entered its judgment on

July 17, 2017. (Pet. App. 1a). The Court denied

Petitioners’ request for a rehearing en banc on

August 18, 2017. (Pet. App. 57a). The Court denied

the Union’s request for panel rehearing on August 23,

2017. This Court has jurisdiction pursuant to 28

U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISIONS

Pertinent provisions of the Railway Labor Act 45

U.S.C. § 151, et. seq., are reprinted in Appendix D to

this petition.

STATEMENT OF THE CASE

Congress devised the Railway Labor Act (“RLA”)

to promote labor stability by forcing parties to

arbitrate over contractual disputes rather than

litigate them in federal court.

Disputes over

contractual terms (express or implied) are termed

“minor disputes” under the RLA. Disputes over the

formation of new contracts are termed “major

disputes.” This Court has set forth clear guidelines

2

requiring courts to view the party seeking

arbitration’s interpretation of a contract deferentially

and to resolve any doubt in favor of finding a dispute

to be minor. As in other labor contexts, there is a

strong presumption in favor of arbitrability. This

case presents the question of whether a court may

find a dispute over existing, ambiguous contract

language in a CBA to be a major dispute and compel

the party seeking to avoid an injunction to either

accept the other side’s position or arbitrate the issue

in the shadow of an injunction.

The Sixth Circuit held found, without any

analysis

or

explanation,

that

Petitioners’

interpretation of the CBA was not “arguably

justified,” and therefore a major dispute. The Sixth

Circuit then enjoined Petitioners to either acquiesce

to the Union’s demands or arbitrate the issue under

the shadow of an injunction that already opined on

the underlying disputes in dicta, leaving the parties

in a position of uncertainty. This decision severely

deviated from this Court’s previous RLA precedent in

several ways. First, the Sixth Circuit misapplied

Conrail and failed to give the proper deference to

Petitioners’ interpretation of the CBA. Second, the

Sixth Circuit found an issue to be a major dispute

based on only a single contract provision when there

were multiple contested provisions related to the

dispute. Finally, the Sixth Circuit erred by ordering

a remedy – arbitration – that is directly contrary to

the required remedy for major disputes under the

RLA, while simultaneously opining on but not

resolving the underlying contractual disputes. While

arbitration is ultimately the correct outcome in this

case, that outcome is distorted when it is done under

the threat of an injunction and where the District

3

Court and Sixth Circuit have already opined on the

merits of the contractual dispute – a topic that should

be solely reserved for arbitration. This Court should

correct this gross misapplication of the law and

reverse the Sixth Circuit’s erroneous decision.

I.

Statutory Background

A. The Railway Labor Act

The Railway Labor Act (“RLA”) governs labor

relations in the railroad and airline industries. Int’l

Ass’n of Machinists v. Central Airlines, Inc., 372 U.S.

682, 685-86 (1963). Congress passed the RLA to

promote “stability in labor-management relations by

providing a comprehensive framework for resolving

labor disputes.” Hawaiian Airlines, Inc. v. Norris, 512

U.S. 246, 252 (1994). The RLA’s “underlying idea”

provides that “[carriers] and their employees best

settle their own troubles and that government ought

to intervene only when they fail.” Edwin E. Witte,

The Government in Labor Disputes 244 (1932).

The appropriate method of dispute resolution

under the RLA depends on the type of dispute at

issue. There are four recognized types of disputes

under the RLA: statutory disputes; representation

disputes; major disputes; and minor disputes. This

case concerns so-called major and minor disputes

under the RLA.

Minor disputes are conflicts over the

“interpretation or application of particular provisions

of existing collective bargaining agreements.” United

Transp. Union v. Cuyahoga Valley Ry. Co., 979 F.2d

431, 434 (6th Cir. 1992). Such disputes extend to

disagreements regarding implied terms of contracts.

Conrail, 491 U.S. at 311-12. Minor disputes are

4

resolved through conferences between the parties,

followed by grievances, and then arbitration. Under

the RLA, the parties’ internal System Board of

Adjustment (“System Board”) has exclusive

jurisdiction over minor disputes between air carriers

and unions. International Ass’n of Machinists v.

Central Airlines, 372 U.S. 682, 685-86 (1963).

In the context of a minor dispute, courts only

have limited jurisdiction to compel a party to

participate in a minor dispute procedure, to enjoin

action that may frustrate the jurisdiction of an

adjustment board, or to enjoin a union from striking

over a minor dispute pending completion of the

minor-dispute procedures. Burlington N. R. Co. v.

Bhd. of Maint. of Way Employes, 481 U.S. 429, 446

(1987) (explaining that courts have jurisdiction to

compel a party to fulfill its obligations under the

RLA); Bhd of R.R. Trainmen v. Chicago River & Ind.

R.R., 353 U.S. 30, 42 (1957) (explaining that courts

have jurisdiction to enjoin a union from striking over

a minor dispute while the minor dispute procedures

are being exhausted). The authority to compel a party

in these circumstances requires not just the existence

of a minor dispute, but facts demonstrating the

necessity of an injunction. Burlington N. R. Co. v.

Bhd. of Maint. of Way Employes, 481 U.S. 429, 446

(1987) (noting that even when a violation of an RLA

mandate is shown, courts should only grant an

injunction if that remedy alone can effectively guard

the plaintiff’s rights). Courts also have very limited

jurisdiction to review the findings of a System Board.

See RLA § 9, Third; 45 U.S.C. §159 (outlining three

limited bases for impeaching a System Board’s

arbitration award).

5

While courts are not entirely devoid of

jurisdiction to uphold the mandates of the RLA when

minor disputes are involved, courts completely lack

subject-matter jurisdiction to rule on the merits of a

minor dispute. Hawaiian Airlines, Inc. v. Norris, 512

U.S. 246, 253 (1994) (“[A] minor dispute . . . must be

resolved only through the RLA mechanisms,

including the carrier’s internal dispute-resolution

processes and an adjustment board established by

the employer and the unions.”); Conrail, 491 U.S.

299, 304 (1989) (where a dispute is minor, the System

Board “has exclusive jurisdiction over minor

disputes.”); Union Pac. R.R. Co. v. Sheehan, 439 U.S.

89, 94 (1978) (“Congress considered it essential to

keep these so-called ‘minor’ disputes within the

Adjustment Board and out of the courts.”).

Labor and management often disagree on the

proper characterization of a dispute. One side may

classify it as a minor dispute over the interpretation

of an existing agreement to ensure it is resolved

through arbitration while the other side classifies the

same issue as as a major dispute in order to use or

threaten self-help or seek judicial intervention.

Whether a dispute is major or minor is a legal

question for the courts to decide. Conrail, 491 U.S. at

306. In Conrail, this Court set out clear standards for

lower courts to use when determining the proper

classification of a dispute.

First, where a party opposing judicial

intervention claims its position is allowed under, or

not prohibited by, the existing contract, the dispute is

minor so long as that party’s interpretation is

“arguably justified” by the implicit or explicit terms

of the agreement. Conrail, 491 U.S. at 307, 310. A

6

court should only find a dispute regarding the

express or implied terms of the contract to be major

where the party opposing judicial intervention’s

interpretation is so “frivolous or obviously

insubstantial” that the party is essentially seeking to

create a new agreement rather than applying the

existing one. Id. at 307. Because federal labor policy

strongly favors arbitration of disputes, the burden to

show a dispute is minor is “relatively light” and the

analysis favors a finding of arbitrability. Id. at 307.

In contrast, major disputes are disputes over the

formation of collective agreements or efforts to secure

them. They arise where there is no such agreement

or where it is sought to change the terms of one.

Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723

(1945). Parties initiate major dispute procedures by

serving written proposals for changes to collective

bargaining agreements. The RLA requires parties to

resolve major disputes through bargaining and

negotiation. See RLA § 2, First; 45 U.S.C. § 152. If

the parties fail to come to an agreement during

bargaining, they can enlist the assistance of the

National Mediation Board’s (“NMB”) mediation

service, but the NMB has no authority to compel

agreement. RLA § 5, First; 45 U.S.C. § 155.

If the NMB determines that its mediation efforts

have been unsuccessful, it offers arbitration to the

parties to resolve their dispute. RLA § 5, First; 45

U.S.C. § 155. If either party rejects the NMB’s offer of

interest arbitration, the NMB then releases the

parties from mediation, which commences a 30-day

“cooling off” period. Shore Line R.R. Co v.

Transportation Union, 396 U.S. 142, 152 (1969). Once

the 30-day cooling off period expires, the NMB may

7

recommend the appointment of a Presidential

Emergency Board (“PEB”) to make recommendations

to resolve the dispute. RLA § 10; 45 U.S.C. § 160. If

no PEB is appointed, and the parties have made

every effort to make and maintain agreements, the

NMB may release the parties to engage in self-help.

Bhd of R.R. Trainmen v. Terminal Co, 394 U.S. 369,

378 (1969).

In major disputes, courts have jurisdiction to

enforce the mandatory bargaining and mediation

procedures and enjoin parties from altering the

status quo pending completion of the statutory

dispute resolution procedures. See Chicago & N.W.

Ry. v. United Transp. Union, 402 U.S. 570, 581

(1971); Order of R.R. Telegraphers v. Chicago & N.W.

Transp. Co., 362 U.S. 330 (1960); Texas & New

Orleans R.R. v. Bhd. of Ry. Clerks, 281 U.S. 548

(1930). Although neither party is required to request

mediation or accept an offer of arbitration from the

NMB, the RLA’s mandate to exert every reasonable

effort to settle disputes includes good faith utilization

of the NMB’s procedures. See Bhd of R.R Trainmen v.

Toledo, Peoria & W. R.R., 321 U.S. 50, 60 & n.16

(1944), quoting 75 CONG. REC. 5504 (1932)

(statement of Rep. LaGuardia); see also Air Lines

Pilots Ass’n v. United Air Lines, 802 F.2d 886, 901

(7th Cir. 1986).

B. The McCaskill-Bond Statute

The McCaskill-Bond statute, 49 U.S.C. § 42112,

generally requires carriers and unions to abide by

Sections 3 and 13 of the Allegheny-Mohawk Labor

Protective Provisions when integrating seniority lists

as the result of a merger. At bottom, the AlleghenyMohawk Labor Protective Provisions mandate that

8

the seniority list integration process be fair and

equitable. The McCaskill-Bond statute is an issue of

federal law, but it often, as in this case, overlaps with

topics covered in a CBA.

II. Facts and Procedural History

This case concerns the merger of two jet

fractional ownership airlines, Flight Options and

Flexjet. In December 2013, One Sky Flight, Inc.,

Flight Options’ parent company, acquired Flexjet.

Flight Options’ pilots were represented by the

International Brotherhood of Teamsters (hereinafter,

“the Union”) at the time of this acquisition; the

Flexjet pilots were unrepresented. The Union and

Flight Options were parties to a Collective

Bargaining Agreement (“CBA”) that was ratified in

2010 before the acquisition. (Pet. App. 74a). Section

1.5(c) of that CBA contained a section on procedural

requirements and employee protections in the event

of a merger between Flight Options and another

carrier. (Pet. App. 89a). This section of the CBA is at

the heart of the parties’ disputes.

The CBA contemplates a three-step process for

integrating the pilot employees into one group: (1) the

negotiation of a fence agreement, which separates the

two pilot groups from each other; (2) the integration

of the pilot seniority lists; and (3) the modification of

the 2010 CBA, as necessary to permit the integration

of the pilot groups, through negotiation and

arbitration. (Pet. App. 89a). This Petition arises from

a dispute over the second step in this process,

integration of the pilot seniority lists. (Pet. App. 90a).

The seniority integration process is critically

important to pilots. “Seniority integration affects

pilots’ pay, the planes they fly, time off, in what order

9

they are subject to furlough or lay-off in bad economic

times, bidding order, base location, routes flown, and

whether they are ‘captain[s], first officer[s], or second

officer[s]—factors that have an enormous effect on

the pilot’s income and income-related benefits such as

pensions.”’ Jerman & Joshi, Seniority Integration in

Airline Mergers: The Intended & Unintended

Consequences of the McCaskill-Bond Statute, 25 Air

& Space Law. 1, 17 (No. 2 2012) (internal citations

omitted). This importance is underscored by the

protection of the integration process under federal

law via the McCaskill-Bond Statute, and the 2010

Flight Options CBA.

Section 1.5(c)(1) of the CBA, which governs the

second step of integration, provides that “seniority

lists of the respective Pilot groups shall be integrated

pursuant to Teamsters Merger Policy if both groups

are represented by the IBT, or if the Pilots of the

acquired airline are not represented by the IBT, then

pursuant to Sections 3 and 13 of the AlleghenyMohawk Labor Protective Provisions.” (Pet. App.

90a). The CBA also states that the ultimate list may

not result in a “system flush” or “removal of Pilots

from their positions.” (Pet. App. 90a).

On August 17, 2015, Union director Rick

Dubinsky sent a letter to Flexjet indicating that the

Union had selected a committee to represent the

Flexjet pilots in the seniority integration process. The

Union did not represent Flexjet pilots at the time it

appointed this committee.1 Flexjet responded to Mr.

1 The Union eventually narrowly won an election over the

combined Flexjet and Flight Options pilot group in December

10

Dubinsky’s letter on August 20, 2015, stating that it

was inappropriate for the Union to select a seniority

integration committee before there had been a single

carrier finding by the NMB or even an election over

whether the Union would represent Flexjet pilots.

Flexjet also objected to the Union’s formation of this

committee because (1) the Union did not represent

Flexjet pilots at that point, and (2) the committee

consisted entirely of Union-friendly pilots. When the

final election of the combined pilot group took place

in December, 330 voted in favor of the Union and 314

voted in opposition.

Prior to the election, the Union disregarded

Flexjet’s objections and proceeded to devise an

integrated seniority list in closed sessions and

without any neutral Flexjet representatives present.

Flexjet and Flight Options (“the Companies”)

repeatedly requested that the Union allow a

Company representative to attend and observe the

sessions to ensure that the process was fair and

equitable as required by McCaskill-Bond and the

CBA. The Union rejected these requests.

The Union notified the Companies that an

Integrated Seniority List (“the List”) had been agreed

to by the Flexjet and Flight Options Merger

Committees on February 24, 2016. The List used

longevity-date order to determine seniority, which

had mixed effects on both Flight Options and Flexjet

pilots. The List notably contained provisions that

2015, four months after the Union unilaterally appointed a

merger committee on behalf of Flexjet pilots that it did not

represent.

11

specifically targeted Flight Options pilots who had

taken leaves of absence to fly at Flexjet after the

acquisition. (Hereinafter, “the LOA Pilots”). While

every other pilot had their years of service at their

respective companies recognized, the LOA Pilots’

time spent at Flexjet was not credited and unfairly

penalized those pilots. Because the LOA Pilots had a

reputation for being “company friendly,”2 the

Companies believed that the Union-controlled

committees specifically targeted the LOA pilots, in

violation of both the CBA’s and McCaskill-Bond’s

requirements that the process to create an integrated

seniority list be fair and equitable. The Companies

also felt that the List could potentially cause a

system flush or removal of pilots from their position

in violation of Section 1.5(c)(1) of the CBA. As a

result, the Companies refused to accept the proposed

List.

The Union filed a grievance with the System

Board of Adjustment seeking to force the Companies

to accept the Integrated Seniority List. On March 23,

2016, the Companies filed for a declaratory judgment

in the District Court for the Northern District of Ohio

to determine whether the Integrated Seniority List

process complied with McCaskill-Bond and to stay

the Union’s grievance until the Court could

determine this issue. (Pet. App. 39a). In response, the

Union filed Counterclaims seeking an injunction to

The Companies encouraged Flight Options pilots to go to

Flexjet because there was more growth and hiring needs there

compared to Flight Options. The Union publicly discouraged

pilots from taking leaves to fly at the sister company Flexjet

(non-unionized at that time).

2

12

compel the Companies to accept the Integrated

Seniority List based on the Companies’ alleged

refusal to bargain, among other things. (Pet. App.

41a). The Union’s counter-claims were substantially

broader than the Companies’ narrow declaratory

judgment that solely sought a determination based

on an interpretation of a federal statute, McCaskillBond. In response to this attempt to expand the scope

of the case, the Companies argued, among other

things, that the underlying issues were minor

disputes that the District Court did not have

jurisdiction to resolve because the claims could only

be resolved by ruling on the Companies’ defenses: (1)

that the process used to create the List violated the

fair and equitable requirements of the CBA; (2) that

the List would cause a system flush; (3) that the List

would cause the removal of Pilots from their position;

(4) that the Teamsters Merger Policy did not apply

under the CBA; and (5) that the Union did not

represent the pilots of Flexjet as required by the

CBA, all of which required interpretation of express

terms of Section 1.5(c)(1) of the Flight Options CBA .

(Pet. App. 2a).

While broad on paper, the Union’s counter-claims

ultimately represented a single contractual dispute:

whether the Companies were required to accept the

Integrated Seniority List. The Companies pointed out

that the District Court did not have jurisdiction to

resolve this issue because it was a minor dispute that

required broader interpretation of the 2010 Flight

13

Options CBA3, and that the only appropriate scope of

inquiry for the Court was whether the List complied

with the McCaskill-Bond statute – an issue of federal

law that did not involve the CBA. Whether the List

complied with Section 1.5(c)(1) of the CBA and

whether the CBA required the Companies to accept

the List in spite of its flaws are minor disputes that

must

be

arbitrated

because

they

require

interpretation of explicit and implicit terms of the

CBA. After reviewing the parties’ competing

arguments, the District Court concluded that

whether the CBA required the Companies’ to accept

the List was a major dispute. The Court reasoned

that the dispute was major because it dealt with the

acquisition of future rights instead of a dispute over

existing rights. (Pet. App. 43a). The District Court

then put itself in the place of the arbitrator and

ordered the Companies to accept the List. (Pet. App.

51a).

The Companies appealed from the Court’s

preliminary injunction order pursuant to 28 U.S.C.

§ 1292(a)(1). On appeal, the Companies argued that

the dispute was minor and thus the District Court

lacked jurisdiction to rule on the merits or require

the Companies to accept the Integrated Seniority

List.

The Sixth Circuit misinterpreted the central

issue on appeal as to whether the Companies had a

3 Specifically, whether the List complied with Section

1.5(c)(1)’s requirements to be created in a fair and equitable

process, to avoid a system flush, and to avoid the removal of a

pilot from his or her position.

14

right to participate in the Integrated Seniority List

process. By focusing on this sole issue, the Sixth

Circuit failed to properly apply Conrail because it

never

analyzed

whether

the

Companies’

interpretations of Section 1.5(c)(1) in the broader

context of the CBA were arguably justified. The

Court found, without analysis, that the issue was a

major dispute because one of the Companies’

arguments (whether the Carriers had an implied

right to participate in the creation of the List) of the

CBA was not arguably justified. (Pet. App. 26a). The

Sixth Circuit’s holding repeated the District Court’s

mistake by failing to address the other explicit

clauses of the CBA in dispute regarding whether the

List complied with the Allegheny-Mohawk Labor

Protective Provisions, whether the List caused a

system flush or removed pilots from their positions,

whether the Teamsters Merger policy applied, and

whether the Union represented Flexjet pilots, all

minor disputes that deprive the courts of jurisdiction

to address the merit of these disputes.

The Companies filed a petition for rehearing en

banc pointing out that the Sixth Circuit’s decision

was contrary to Conrail because it failed to give

proper deference to the Companies’ interpretation of

the CBA and properly apply the “arguably justified”

standard. The Companies further argued that the

decision disregarded the Sixth Circuit’s own postConrail precedent involving disputes over the

meaning of terms in existing agreements. The Court

denied the Companies’ petition for rehearing. (Pet.

App. 58a).

15

REASONS FOR GRANTING THE WRIT

This Court should grant a writ for three reasons.

First, the Sixth Circuit’s decision conflicts with this

Court’s RLA precedent in Conrail by misapplying the

major-minor dispute analysis by not applying the

proper deference to the Companies’ interpretation

when applying the arguably justified standard.

Conrail instructed that a carrier had only a

“relatively light” burden to show that its

interpretation of a collective bargaining agreement

was “arguably justified” rather than “frivolous” or

“obviously insubstantial.” The Companies met that

burden by demonstrating multiple plausible

contractual interpretations that supported their

refusal to accept the List.

The Sixth Circuit

disregarded the Conrail standard by not giving

proper deference to the Companies’ interpretation.

Second, the Sixth Circuit violated the principles

of Conrail by holding that an issue clearly covered by

the terms of a CBA was a major dispute because one

of the Companies’ multiple contractually-based

defenses to this action was not arguably justified.

(Pet. App. 26a).

Finally, the Sixth Circuit erred by issuing an

injunction without a finding that there was an

imminent threat that the RLA would be violated

absent an injunction. Courts can only issue an

injunction under the Railway Labor Act to prevent a

violation of the Act and, even then, only after the

party seeking an injunction has worked in good faith

to resolve the dispute outside of court. The Sixth

Circuit disregarded this principle and issued an

injunction in this case when there was no finding

16

that the parties would not have arbitrated the issue

absent the injunction. (Pet. App. 27a).

The RLA and this Court’s precedent interpreting

and applying it have helped maintain labor stability

in the railroad and airline industries for more than

90 years by requiring Parties to resolve

disagreements growing out of existing agreements

peacefully

through

grievance

handling

and

arbitration. The Sixth Circuit’s approach in this case

threatens to unsettle this stability by blurring the

lines between major and minor disputes and inviting

parties to bring contract-based labor disputes to the

courts rather than the statutorily-mandated System

Boards of Adjustment. This outcome ignores this

Court’s precedent and is in total conflict with the

language and purpose of the RLA. This Court should

grant this Petition to correct these legal and

procedural errors.

I.

The Sixth Circuit’s Decision Conflicts With

Conrail And Misconstrues The Issues.

The Sixth Circuit’s decision in this case is

profoundly incorrect. First, the Court of Appeals

failed to follow the “relatively light burden” standard

from Conrail. While the Court of Appeals nominally

mentioned these principles, it did not actually apply

them. The Sixth Circuit in reality disregarded the

deferential approach demanded by Conrail in favor of

an over-simplified, surface-level analysis that failed

to take into account the implied terms and

interconnected express terms of the CBA. As a result,

the Sixth Circuit impermissibly decided the merits of

the underlying contract interpretation dispute and

improperly interfered in the parties’ labor relations.

17

There is a long and consistent line of precedent

underlying the federal courts’ limited role under the

Railway Labor Act. The standards developed over the

years by this Court have repeatedly emphasized the

RLA’s goal of preventing labor disputes from

interrupting carrier operations from labor disputes.

To accomplish this, the test for determining whether

a dispute is major or minor strongly favors finding a

dispute to be minor. As set forth in Conrail, the

appropriate inquiry is whether the carrier’s

interpretation is “arguably justified” by the terms of

the agreement, 491 U.S. at 310, and whether the

dispute can “be conclusively resolved by interpreting

the existing agreement,” 491 U.S. at 305. The carrier

does not have to prove that its contract interpretation

is correct or likely to succeed, only that it is not

“frivolous” or “obviously insubstantial.” Id. at 306.

The carrier’s burden to satisfy these standards is

“relatively light” because of the strong presumption

in favor of arbitration. Id. at 307. If there is any

doubt as to arbitrability, the Court should defer to

the arbitral jurisdiction of the System Board. Id. at

310.

The courts’ role in determining whether a

dispute is major or minor is narrow. The court can

neither interpret the contract nor decide which

party’s interpretation is correct. Id. at 318. The RLA

places exclusive jurisdiction to resolve these contract

interpretation disputes in System Boards that have

special expertise in interpreting labor agreements

and an intimate familiarity of the parties’ bargaining

history. Id. at 310-11. This Court has found that

system boards are better equipped than courts to

resolve disputes over the interpretation of collective

bargaining agreements, because they are expert in

18

the industry and familiar with its jargon and the “law

of the shop.” See, Gunther v. San Diego & E. Ry. Co.,

382 U.S. 257, 261 (1965).

The relevant issues regarding the Integrated

Seniority List in this case were classic minor

disputes. The Union sought to compel the Companies

to accept the Integrated Seniority List, arguing that

this was required by Section 1.5(c)(1) of the Flight

Options CBA. That section of the CBA states, in part,

that “The Company or other Successor, as

appropriate, shall accept the integrated seniority

list.” (Pet. App. 90a). The Companies argued that this

overly narrow focus was improper because (1) the

List did not comply with McCaskill-Bond, (2) the List

did not comply with the CBA because the Companies

were excluded from the creation process, (3) the List

and the process used to create it were not fair and

equitable as required by Section 1.5(c)(1) of the CBA,

(4) the List may cause a System Flush which would

violate Section 1.5(c)(1) of the CBA, (5) the List may

cause pilots to lose their positions in violation of

Section 1.5(c)(1) of the CBA; (6) the List was

improperly created under the Teamsters Merger

Policy when that Policy did not apply under the

terms of the CBA; and (7) the process used to create

the List was improper because the Union did not

represent Flexjet pilots.

The McCaskill-Bond issue was proper for a

federal court to decide because it was an issue of pure

federal law that did not require an interpretation of

the CBA. The remaining issues, however, required

the court to interpret implicit or explicit CBA terms

and should have been left to the parties to resolve

through the System Board of Adjustment process.

19

The Companies’ right to participate in (or at

least observe) the Integrated Seniority List process is

an implied term of the contract based on the

language requiring the List to comply with Sections 3

and 13 of the Allegheny-Mohawk Labor Protective

Provisions, which require the process used to create

the list to be fair and equitable. This requirement is

an affirmative duty on both the Companies and the

Union, and in order for the Companies to fulfill their

duty they needed to be involved at some level in the

creation of the List. The remaining issues regarding

whether the List complies with the AlleghenyMohawk Labor Protective Provisions, whether the

List caused a system flush, whether the List caused

the removal of pilots from their positions, whether

the List was improper because it used the Teamsters

Merger Policy, and whether the process used to

create the List was improper because the Union did

not represent Flexjet pilots are conflicts over explicit

and implicit terms in Section 1.5(c)(1) of the CBA. All

of these issues are minor disputes because they can

only be resolved by interpreting terms in the CBA.

The Court of Appeals disregarded the

Companies’ arguments and focused solely on the

issue of whether the CBA provided the Companies a

right to participate in the creation of the List. (Pet.

App. 24a). The Court of Appeals incorrectly held that

the Companies’ interpretation of this issue was not

“arguably justified,” and therefore a major dispute.

The Court of Appeals further erred by issuing an

injunction on this sole basis when there were

multiple other minor disputes that related to the

ultimate issue of whether the Companies were

required to accept the List. The Court’s

20

determination and subsequent

erroneous for several reasons.

injunction

were

First, the Court of Appeals misunderstood the

ultimate issue: whether the Union’s claim that the

CBA’s requirement for the Companies to “accept the

List” was a major dispute. The District Court held

that it was, finding the language of the CBA dealt

with “acquisition of rights for the future” rather than

“rights claimed to have vested in the past.”4 (Pet.

App. 43a). When analyzing this issue on appeal, the

Court of Appeals ignored the Union’s claim, and

chose instead to focus on only one of the Companies’

multiple CBA-based arguments for not accepting the

List. In doing so, the Court implicitly ruled that,

where a party proffers multiple interpretations, the

existence of one arguably unjustified interpretation

renders an issue a major dispute regardless of how

many other arguably justified interpretations / minor

disputes are present. This reasoning is contrary to

Conrail and is not supported by any rational

interpretation of the Railway Labor Act.

Even if the argument regarding the Carrier’s

ability to participate in the creation of the List was

unjustified, the Court of Appeals still erred by

deciding that this was a major dispute. The Court of

Appeals held that “the district court did not err in

finding that the 2010 CBA does not arguably justify

the Carriers’ assertion that they have a right to

The District Court also improperly decided the minor

dispute regarding whether the List complied with the CBA’s

requirement that the List satisfy the Allegheny-Mohawk

Sections 3 and 13 Labor Protective Provisions. (Pet. App. 44a).

4

21

participate in the ISL process.” (Pet. App. 26a).

However, the District Court never made this finding.

(Pet. App. 43a et seq). The District Court did not

apply the Conrail standard at all. Instead, it

improperly applied the standard from another

problematic Sixth Circuit RLA case, Wheeling & Lake

Erie Ry. Co. v. Bhd. of Locomotive Engineers &

Trainmen, 789 F.3d 681, 690 (6th Cir. 2015). The

issue of whether the Companies have a right to

participate in the creation of the Integrated Seniority

List turns on whether the Companies’ position that it

was an implied term of the CBA was “arguably

justified” under Conrail. However, the District Court

ignored this approach and instead looked to whether

the issue was related to “future rights.” This “future

rights” language was an improper interpretation of

dicta in previous RLA jurisprudence and ignored the

critical “arguably justified” test set forth in Conrail.

Further, there were no “future rights” being

negotiated. This issue concerned existing implicit

and explicit terms in the 2010 Flight Options CBA,

into which the Flexjet pilots were ultimately being

merged. Rather than correct this error, the Court of

Appeals simply pretended that the District Court

applied the correct standard, then upheld that ruling

without any independent analysis of its own. (Pet.

App. 26a).

Even ignoring this procedural error, the Sixth

Circuit also erred in concluding that the Companies’

interpretation of the CBA regarding their duties

relative to the Integrated Seniority List was not

arguably justified. The CBA is a joint agreement

between Flight Options and the Union. Unless

specifically stated otherwise, any rule or obligation in

the CBA applies with equal force to both parties, and

22

any allegation that either side is failing to abide by

their obligations can be arbitrated by the System

Board. In this case, the CBA contained a clause

requiring that, if pilots of an acquired carrier are

hired by the Company, the seniority lists of the

respective pilot groups “shall be integrated.” (Pet.

App. 90a). The CBA does not specify which party is

responsible for creating the List. The Companies

interpreted the CBA to implicitly require their

involvement in the process. Even if the ultimate

decision on creating the List was left to the Union,

the Companies still had an obligation under the CBA

to ensure the process that created the List was fair

and equitable under Sections 3 and 13 of the

Allegheny-Mohawk Labor Protective Provisions.

Since the Companies could not comply with this

requirement

without

either

observing

or

participating in this process, the CBA must have an

implied term allowing or requiring some level of

Company involvement in the creation of the List.

Finally, regardless of whether there was an implied

right for the Companies to participate in the creation

of the List, there were explicit terms in the CBA

requiring the Companies to ensure the process used

to create the List complied with Allegheny-Mohawk,

and did not cause a system flush or remove pilots

from their positions.

The Sixth Circuit also erred by limiting its

analysis to the explicit terms of the collective

bargaining agreement. A collective bargaining

agreement includes express and implied terms and

both must be considered in determining whether a

dispute is an RLA minor dispute. Conrail, 491 U.S. at

308 (“Collective bargaining agreements often

incorporate express or implied terms that are

23

designed to give management . . . a degree of freedom

of action within a specified area of activity.”). This

Court has repeatedly held that a collective

bargaining agreement “is not an ordinary contract for

the purchase of goods and services, nor is it governed

by the same old common-law concepts which control

such private contracts . . . .” Id. at 311. As this Court

recognized, “the general framework of a collective

bargaining agreement leaves some play in the joints,

permitting management some range of flexibility in

responding to changed conditions.” Id. at 309 n. 7. A

court must therefore consider unwritten past

practices as well as express agreement terms when

analyzing whether an interpretation is arguably

covered by the terms of a CBA. Id.

Here, the Court of Appeals should have allowed

for the possibility that the express language on the

scope of the rule allowed some “play in the joints” and

could be interpreted to require the Companies to be

involved in the Seniority List Integration process.

But neither the district court nor the court of appeals

addressed this issue. Instead, these courts solely

relied on a surface-level, myopic, and inaccurate

reading of an unrelated term in the CBA that does

not control the issue. This violates the deferential

standard in Conrail.

The Sixth Circuit’s error is made plain by the

second part of its analysis on the Integrated Seniority

List issue. After ruling that the issue of whether the

Companies were required to accept the List was a

major dispute, the Court of Appeals then continued to

find that the CBA’s arbitration provision was also

part of the status quo, and that therefore the

Companies should be enjoined to either accept the

24

List or submit a grievance over the List. This result

is nonsensical. By recognizing that the dispute at

issue is both subject to the arbitration provisions of

the CBA and that the dispute should be arbitrated,

the Court of Appeals implicitly recognized that the

issue was a minor dispute. Indeed, the practical effect

of the Court of Appeals’ decision is similar to if it had

correctly found the issue was a minor dispute, but

with the added burden of a meritless and

inappropriate injunction that opines on the merits of

the issue in dicta and which the Union will likely use

in subsequent proceedings against the Companies.

II. The Question Presented Is Important And

Recurring Thus The Sixth Circuit’s

Decision Disrupts The Carefully Crafted

Structure Of Disputes Under The Railway

Labor Act.

The issues in this case have recurring

significance for the stability of labor relations in the

railroad and airline industries. In enacting the

Railway Labor Act, Congress recognized the vital

importance that these industries play. Railroads and

Airlines work in a complex inter-connected web. The

entire system can be thrown into disarray if even

small nodes in this web shut down due to labor strife.

And since the transportation system is so

interconnected to the broader economy at large, a

shutdown can have ripple effects far beyond the scope

of labor disputes in other industries.5 That is why

This is exacerbated by the fact that the RLA does not

regulate secondary picketing or prevent a striking RLA union

from targeting neutral employers. See Burlington Northern R.R.

5

25

Congress designed the RLA to mandate that disputes

growing out of the interpretation of collective

bargaining agreements be resolved in arbitration and

limited labor injunctions to a narrow set of

circumstances when all efforts have been expended to

reach an amicable agreement.6

This case requires Supreme Court review

because the Sixth Circuit did not simply misapply the

Conrail standards. Instead, the Court of Appeals

followed a completely different approach by failing to

examine or give any deference to the Companies’

interpretation of the disputed CBA terms. This is

contrary to this Court’s RLA precedents that it is a

light burden for the non-moving party to show an

issue is a minor dispute and that, if there is any

doubt, the court should find in favor of arbitration.

This presumption of arbitrability is a cornerstone

of this Court’s labor relations jurisprudence. See, e.g.,

Union Pacific R.R. Co. v. Bhd. of Locomotive

Engineers and Trainmen, 558 U.S. at 74 (“In creating

the scheme of mandatory arbitration superintended

by the NRAB, the 1934 amendments largely

‘foreclose[d] litigation’ over minor disputes,” quoting

Union Pacific R.R. Co. v. Price, 360 U.S. 601, 616

(1959)). See also Andrews v. Louisville & N.R.R. Co.,

406 U.S. 320, 322-23 (1972) (minor disputes must be

resolved by RLA arbitration boards, not courts); Bhd.

Co. v. Bhd. of Maintenance of Way Employes, 481 U.S. 419

(1987).

This duty is reinforced by the Norris-LaGuardia Act, 29

U.S.C. § 101, et seq., which was also improperly disregarded by

the Court of Appeals in this case.

6

26

of Locomotive Engineers v. Louisville & N.R.R. Co.,

373 U.S. 33, (1963) (dispute over meaning of

arbitration award could not be resolved through

strike); Bhd. of R.R. Trainmen v. Chicago River &

Ind. R.R. Co., 353 U.S. 30 (1957) (union cannot strike

over minor dispute). This presumption in the Railway

Labor Act was born out of this Court’s precedent

under the LMRA, which similarly has a presumption

in favor of arbitration. See, e.g., United Steelworkers

v. Am. Mfg. Co., 363 U.S. 564 (1960); AT&T

Technologies, Inc. v. Communications Workers, 475

U.S. 643, 648 (1986). These cases have recognized

that confining labor disputes over the interpretations

over CBA’s has led to a relatively peaceful and stable

labor-relations environment that minimizes strikes

and lockouts. See AT&T, 475 U.S. at 648 (“These

precepts have served the industrial relations

community well, and have led to continued reliance

on arbitration, rather than strikes or lockouts, as the

preferred method of resolving disputes arising during

the term of a collective-bargaining agreement.”).

This Court’s decision in Conrail has led to

similar stability in the railroad and airline

industries. Until recently, the Circuit Courts of

Appeals have uniformly applied the Conrail test as it

was set forth by this Court.7 The Sixth Circuit bucked

7 See, e.g., Bhd. of Maint. of Way Emps. Div./IBT v.

Norfolk S. Ry. Co., 745 F.3d 808, 815 (7th Cir. 2014); Bhd. of

Maintenance of Way Employes Div. v. Burlington Northern

Santa Fe Ry. Co., 596 F.3d 1217, 1223 (10th Cir. 2010); Air Line

Pilots Ass’n, Int’l v. Guilford Transp. Indus., 399 F.3d 89, 99 (1st

Cir. 2005); CSX Transp., Inc. v. Bhd. of Maintenance of Way

Employes, 327 F.3d 1309, 1322 (11th Cir. 2003); Ass’n of Flight

27

this trend when it failed to properly consider implied

terms and apply the deferential Conrail standard in

Wheeling & Lake Erie Ry. Co. v. Bhd. of Locomotive

Engineers & Trainmen, 789 F.3d 681 (6th Cir. 2015).

The Court of Appeals used that precedent as a

launching pad to take Sixth Circuit jurisprudence

even further from the rule in Conrail. This upsets the

careful balance that Congress and this Court have

established. Now that there is a Circuit that is more

likely to wade into the merits of a labor dispute, there

is a danger that parties will purposely seek out that

forum, which would lead to increased protracted

litigation and potential disruption to the airline and

railroad industries. Indeed, the instant case is a

prime example of that. Not long after the District

Court mistakenly granted the Union an injunction in

this case, the Union quickly returned seeking yet

another injunction over a different minor dispute. See

Flight Options, LLC v. Int'l Bhd. of Teamsters, Local

1108, No. 1:16-CV-00732, 2017 WL 1173143 (N.D.

Ohio Mar. 30, 2017). This Court should step in to

reaffirm the standards in Conrail and correct this

emerging split in the circuits before it leads to

Attendants v. Horizon Air Indus., Inc., 280 F.3d 901, 904 (9th

Cir. 2002); United Transp. Union v. Kansas City Sou. Ry. Co.,

172 F.3d 582, 588 (8th Cir. 1999); United Transp. Union v.

South Carolina Public Ry. Comm’n, 130 F.3d 627, 635 (4th Cir.

1997); Bhd. of Locomotive Eng’rs Div. 269 v. Long Island R.R.,

85 F.3d 35, 38 (2d Cir. 1996); Southeastern Penn. Transp. Auth.

v. Bhd. of R.R. Signalmen, 882 F.2d 778, 786 (3d Cir. 1989) Air

Line Pilots Ass’n v. E. Air Lines, 869 F.2d 1519, 1521 (D.C. Cir.

1989); Int’l Bhd. of Teamsters v. Southwest Airlines Co., 875

F.2d 1129, 1135 (5th Cir. 1989) (en banc).

28

further improper and destabilizing court intervention

in labor relations.

This case is particularly troubling in that it not

only misapplied the Conrail standard, but it did so in

a way that completely distorted the basic distinction

between major and minor disputes. The ultimate

result of the Sixth Circuit’s decision was to enjoin the

Companies to either accept the List or arbitrate the

issue in front of the System Board. At first blush, this

result seems to have a similar practical effect as if

the Court of Appeals had properly found the issue to

be a minor dispute and dismissed the case to be

arbitrated. After all, an arbitrator will ultimately

resolve the issues in this case even though the Court

of Appeals erred in finding it a major dispute. But

this seemingly benign result is a serious deviation

from the procedure established by the RLA and

improperly blurs the lines between major and minor

disputes.

Injunctions are an extraordinary remedy, even

more so in the labor context. See Winter v. Nat. Res.

Def. Council, Inc., 555 U.S. 7, 24 (2008). Congress has

recognized this in both the Railway Labor Act and

the Norris-LaGuardia Act, which require a party

seeking an injunction to exert every reasonable effort

to resolve the issue amicably before seeking an

injunction. There is nothing in the record that would

justify an injunction in this case. There were no

findings that the status quo would be violated absent

an injunction or any other basis that could justify an

injunction. There was no need or justification for an

injunction here because the parties had already

shown a willingness to arbitrate all disputes but the

narrow McCaskill-Bond issue. In effect, the Court of

29

Appeals issued an injunction requiring the parties to

act exactly as they had already planned.

Furthermore, an injunction is generally only

appropriate under the Railway Labor Act in the

event of a major dispute that threatens to disrupt the

status quo or to prevent another violation of the RLA.

While the Court of Appeals nominally found this to

be a major dispute, it also contradictorily (implicitly)

held that the disputes over the Integrated Seniority

List were non-frivolous disputes subject to be

arbitrated pursuant to the CBA’s arbitration clause.

This nonsensical ruling crosses the streams

between major and minor disputes and effectively

authorizes injunctions for any minor dispute. Such a

finding is contrary to the RLA and undermines the

entire statutory scheme that requires parties to

resolve minor disputes through arbitration. By giving

the court a toehold into minor disputes like this, it

encourages parties to go to court first rather than to

proceed through the RLA’s mandated arbitration

process.

Even if the end result is that the court will

simply issue an injunction to compel a party to

arbitrate, that still disrupts the purpose of the RLA

by unnecessarily complicating and prolonging the

resolution of everyday disputes over the terms of a

CBA. This is exactly what Congress tried to avoid

when drafting the RLA. This Court should step in to

correct this problem and avoid any further

unnecessary entanglement between labor-relations

and the judiciary.

30

SUMMARY REVERSAL

As an alternative to granting oral argument for

this petition, the Court could summarily reverse the

Sixth Circuit’s decision and remand with instructions

that, under a proper application of Conrail, the

dispute over the Integrated Seniority List is a minor

dispute within the meaning of the RLA.

This Court has granted summary reversal of

lower court decisions when they are clearly erroneous

and contrary to controlling Supreme Court precedent.

Stern & Gressman, Supreme Court Practice 345

(10th ed. 2013) (citing Am. Tradition P’ship v.

Bullock, 132 S. Ct. 2490 (2012)). While relatively

rare, this Court has summarily reversed decisions

that failed to follow well-established precedent its

precedents such as the instant case. See, e.g., Jenkins

v. Hutton, 137 S. Ct. 1769, 1772 (2017) (reversing the

Sixth Circuit Court of Appeals for failing to follow the

narrow review of habeas claims under AEDPA);

Caetano v. Massachusetts, 136 S. Ct. 1027 (2016)

(reversing the Massachusetts Supreme Court for

failing to follow the Second Amendment guidelines in

District of Columbia v. Heller, 554 U.S. 570 (2008));

Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014)

(reversing the Fifth Circuit Court of Appeals for

failing to follow the well-established summary

judgment standard from Anderson v. Liberty Lobby,

Inc., 477 U.S. 242 (1986)).

As explained in this petition, the Sixth Circuit

failed to give effect to this Court’s decision in Conrail

regarding the proper classification of RLA labor

disputes as major or minor. Furthermore, the Sixth

Circuit’s ruling is contrary to the plain text of the

RLA that limits the use of injunctions to cases where

31

there is a threat of a status quo violation or other

violation of the Act. These errors were not nuanced

readings of the established law or distinguishable on

their facts – the Sixth Circuit completely disregarded

nearly thirty years of precedent under the RLA based

on this Court’s decision in Conrail. This serious error

undermines the entire statutory scheme of the RLA

by broadening the permissible role of the courts in

labor disputes in a way contrary to the letter and

intent of the statute. The Sixth Circuit’s errors in this

case are as serious and plain as the failure of other

courts to follow well-established principles of law

such as Liberty Lobby and Heller. Such obvious errors

should be summarily reversed.

32

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

W. Chris Harrison

Counsel of Record

Zachary W. Hoyt

OGLETREE, DEAKINS,

NASH, SMOAK &

STEWART, P.C.

6410 Poplar Ave.

Suite 300

Memphis, TN 38119

chris.harrison@ogletree.com

zachary.hoyt@ogletree.com

NOVEMBER 16, 2017

Counsel for Petitioners

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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