Petition for Writ of Certiorari — Union Pacific Railroad Company, Petitioner v. Brotherhood of Locomotive Engineers and Trainmen
Supreme Court briefSep 7, 2022
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No. _____
IN THE
Supreme Court of the United States
_______________
UNION PACIFIC RAILROAD COMPANY,
Petitioner,
v.
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
AND TRAINMEN,
Respondent.
_______________
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit
_______________
PETITION FOR A WRIT OF CERTIORARI
_______________
Robert S. Hawkins
Andrew J. Rolfes
COZEN O’CONNOR
One Liberty Place
1650 Market Street
Philadelphia, PA 19103
(215) 665-2000
Thomas H. Dupree Jr.
Counsel of Record
Philip Hammersley
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
(202) 955-8500
tdupree@gibsondunn.com
Counsel for Petitioner
QUESTIONS PRESENTED
The Railway Labor Act (“RLA”) prohibits carriers
from interfering with their employees’ “choice of representatives.” 45 U.S.C. § 152 Third.
Union Pacific began disciplinary proceedings
against six employees involved in a fistfight in a restaurant parking lot. The court of appeals held that 45
U.S.C. § 152 Third applied, and enjoined the disciplinary proceedings, because some of the employees were
local union officers, even though none was a collective
bargaining representative. The court also held that
federal jurisdiction existed based on an unwritten “antiunion animus” exception to the RLA’s provision vesting arbitrators with jurisdiction over minor disciplinary disputes, see id. § 153 First (i), even though this
Court has held that the arbitrators’ jurisdiction over
such disputes is “mandatory, exclusive, and comprehensive,” Bhd. of Locomotive Eng’rs v. Louisville &
Nashville R.R. Co., 373 U.S. 33, 38 (1963).
The questions presented are:
1. Whether union “representatives” under 45
U.S.C. § 152 Third means all union officers (as the
court below held), only those union officers serving as
collective bargaining agents (as the Sixth Circuit has
held), or only the union itself (as the Second Circuit
has held).
2. Whether the RLA contains an unwritten “antiunion animus” exception to the mandatory and exclusive arbitration procedures in 45 U.S.C. § 153 First (i).
ii
PARTIES TO THE PROCEEDING AND
RULE 29.6 STATEMENT
The caption contains the names of all the parties
to the proceeding below.
Pursuant to this Court’s Rule 14(b) and Rule 29.6,
undersigned counsel states that petitioner Union Pacific Railroad Company is a wholly owned subsidiary
of Union Pacific Corporation, a publicly traded company. No publicly traded corporation is known to own
10% of the stock of Union Pacific Corporation.
iii
STATEMENT OF RELATED PROCEEDINGS
Pursuant to this Court’s Rule 14.1(b)(iii), the following proceedings are directly related to this case:
Bhd. of Locomotive Eng’rs & Trainmen v. Union
Pac. R.R. Co., No. 21-cv-122 (W.D. Tex. June 11, 2021)
(granting motion for temporary and preliminary injunctive relief).
Bhd. of Locomotive Eng’rs & Trainmen v. Union
Pac. R.R. Co., No. 21-50544, 31 F.4th 337 (5th Cir.
Apr. 13, 2022), reh’g denied, Order at 1 (5th Cir. May
10, 2022).
There are no additional proceedings in any court
that are directly related to this case.
iv
TABLE OF CONTENTS
Page
INTRODUCTION ........................................................ 1
OPINIONS BELOW .................................................... 4
JURISDICTION .......................................................... 4
STATUTORY PROVISIONS INVOLVED ................. 4
STATEMENT OF THE CASE .................................... 5
A. The Railway Labor Act ................................... 5
B. Proceedings Below ........................................... 8
REASONS FOR GRANTING THE PETITION ....... 11
I. This Court Should Resolve The Circuit
Split Over The Scope Of The Railway
Labor Act’s Non-Interference Mandate ....... 11
A. The Circuits Are Split Over The
Meaning Of “Representative” In 45
U.S.C. § 152 Third.................................. 11
B. The Fifth Circuit’s Interpretation
Is Inconsistent With Decisions Of
This Court .............................................. 13
II. This Court Should Grant Review And
Hold There Is No Antiunion Animus
Exception ...................................................... 14
A. The Animus Exception Defies The
Statute’s Text And Purpose, And
Conflicts
With
This
Court’s
Decisions ................................................. 16
B. The Animus Exception Rewrites
The RLA And Erases Important
Distinctions
Between
Labor
Statutes .................................................. 21
III. The
Questions
Presented
Are
Exceptionally Important .............................. 22
CONCLUSION .......................................................... 27
v
TABLE OF APPENDICES
Page
APPENDIX A: Opinion of the United States
Court of Appeals for the Fifth Circuit
(April 13, 2022) .................................................. 1a
APPENDIX B: Order of the United States
District Court for the Western District of
Texas Granting Plaintiff’s Motion for
Temporary and Preliminary Injunctive
Relief (June 11, 2021) ...................................... 18a
APPENDIX C: Memorandum Opinion and
Order of the United States District Court
for the Western District of Texas Denying
the Motion to Dismiss (July 2, 2021) .............. 23a
APPENDIX D: Order of the United States
District Court for the Western District of
Texas Staying District Court Proceedings
(August 9, 2021) ............................................... 36a
APPENDIX E: Order of the United States
District Court for the Western District of
Texas Continuing the Stay of Proceedings
(June 1, 2022) .................................................. 38a
APPENDIX F: Order of the United States
Court of Appeals for the Fifth Circuit
Denying the Petition for Rehearing En
Banc (May 10, 2022) ........................................ 40a
APPENDIX G: Statutory
Provisions
Involved .............................................................. 42a
vi
TABLE OF AUTHORITIES
Page(s)
CASES
Air Line Pilots Ass’n Int’l v.
Guilford Transp. Indus., Inc.,
399 F.3d 89 (1st Cir. 2005) .................................. 21
Andrews v. Louisville & Nashville R.R. Co.,
406 U.S. 320 (1972) .............................................. 17
Ass’n of Flight Attendants, AFL-CIO v.
Horizon Air Indus., Inc.,
280 F.3d 901 (9th Cir. 2002) ................................ 14
Bhd. of Locomotive Eng’rs v.
Kan. City S. Ry. Co.,
26 F.3d 787 (8th Cir. 1994) .................................. 15
Bhd. of Locomotive Eng’rs v.
Louisville & Nashville R.R. Co.,
373 U.S. 33 (1963) .......................... 3, 16, 17, 18, 22
Bhd. of R.R. Trainmen v.
Cent. of Ga. Ry. Co.,
305 F.2d 605 (5th Cir. 1962) ................................ 15
Bhd. of R.R. Trainmen v.
Chi. River & Ind. R.R. Co.,
353 U.S. 30 (1957) .................................... 17, 18, 23
Bhd. of R.R. Trainmen v.
Jacksonville Terminal Co.,
394 U.S. 369 (1969) .............................................. 24
vii
Bhd. of Ry. Carmen (Div. of TCU) v.
Atchison, Topeka & Santa Fe Ry. Co.,
894 F.2d 1463 (5th Cir. 1990) .............................. 20
Big Ridge, Inc. v. NLRB,
808 F.3d 705 (7th Cir. 2015) ................................ 21
Clark v. Martinez,
543 U.S. 371 (2005) .............................................. 22
Conrad v. Delta Air Lines, Inc.,
494 F.2d 914 (7th Cir. 1974) ................................ 15
Consol. Rail Corp. v. Ry. Labor Execs.’ Ass’n,
491 U.S. 299 (1989) ................................................ 7
Davies v. Am. Airlines, Inc.,
971 F.2d 463 (10th Cir. 1992) .............................. 15
Elgin, Joliet & E. Ry. Co. v. Burley,
325 U.S. 711 (1945) ........................................ 23, 24
Gen. Comm. of Adjustment v.
Mo.-Kan.-Tex. R.R. Co.,
320 U.S. 323 (1943) .......................................... 6, 14
Gunther v. San Diego & Ariz. E. Ry. Co.,
382 U.S. 257 (1965) ........................................ 23, 24
Hawaiian Airlines, Inc. v. Norris,
512 U.S. 246 (1994) .......................................... 7, 17
Indep. Union of Flight Attendants v.
Pan Am. World Airways, Inc.,
789 F.2d 139 (2d Cir. 1986) ....................... 7, 15, 20
viii
Int’l Ass’n of Machinists v. Street,
367 U.S. 740 (1961) .................................... 6, 14, 19
Int’l Bhd. of Teamsters v.
United Parcel Serv. Co.,
447 F.3d 491 (6th Cir. 2006) ............................ 1, 12
Nat’l R.R. Passenger Corp. v.
Int’l Ass’n of Machinists &
Aerospace Workers,
915 F.2d 43 (1st Cir. 1990) .................................. 15
Order of Ry. Conductors v. Pitney,
326 U.S. 561 (1946) .............................................. 25
Order of Ry. Conductors v. S. Ry. Co.,
339 U.S. 255 (1950) .............................................. 18
Shurtleff v. City of Boston,
142 S. Ct. 1583 (2022) .......................................... 16
Switchmen’s Union of N.A. v.
Nat’l Mediation Bd.,
320 U.S. 297 (1943) ........................................ 19, 23
Tex. & New Orleans R.R. Co. v.
Bhd. of Ry. & S.S. Clerks,
281 U.S. 548 (1930) .............................................. 25
Trans World Airlines, Inc. v.
Indep. Fed’n of Flight Attendants,
489 U.S. 426 (1989) .................................... 3, 18, 19
Union Pac. R.R. Co. v.
Bhd. of Locomotive Eng’rs & Trainmen,
558 U.S. 67 (2009) ................................ 7, 17, 18, 25
ix
Union Pac. R.R. Co. v. Sheehan,
439 U.S. 89 (1978) (per curiam) ...................... 7, 25
United Transp. Union v.
Nat’l R.R. Passenger Corp.,
588 F.3d 805 (2d Cir. 2009) ........... 1, 12, 13, 19, 21
Wightman v. Springfield Terminal Ry. Co.,
100 F.3d 228 (1st Cir. 1996) .......................... 14, 15
STATUTES
28 U.S.C. § 1254 .......................................................... 4
29 U.S.C. § 157 .......................................................... 21
29 U.S.C. § 158 .......................................................... 21
29 U.S.C. § 160 .......................................................... 21
45 U.S.C. § 151a .................................................... 7, 25
45 U.S.C. § 152 ................................................. passim
45 U.S.C. § 153 ................................................. passim
OTHER AUTHORITIES
Brief of Appellant,
Bhd. of Locomotive Eng’rs & Trainmen v.
Union Pac. R.R. Co., 31 F.4th 337 (5th
Cir. 2022), 2021 WL 3822940 ................................ 8
x
Hearing on Motion for Temporary and
Preliminary Injunctive Relief,
Bhd. of Locomotive Eng’rs & Trainmen v.
Union Pac. R.R. Co., No. 21-cv-122 (W.D.
Tex. June 17, 2021), Dkt. 39 ............................ 9, 12
Nat’l Mediation Bd.,
Annual Performance & Accountability
Report FY 2021 (2021) ......................................... 24
PETITION FOR A WRIT OF CERTIORARI
Union Pacific Railroad Company respectfully petitions for a writ of certiorari to review the judgment
of the United States Court of Appeals for the Fifth Circuit.
INTRODUCTION
The Railway Labor Act protects the rights of railroad employees to choose their own collective bargaining representative. That protection is enshrined in 45
U.S.C. § 152 Third, which provides that neither a railroad nor a labor organization “shall in any way interfere with, influence, or coerce the other in its choice of
representatives.”
This case presents the question of who is a “representative[ ]” entitled to protection. The Sixth Circuit
has squarely held that only a union’s collective bargaining representatives—i.e., those individuals who
negotiate a collective bargaining agreement with the
employer—are “representatives” under 45 U.S.C.
§ 152 Third. See Int’l Bhd. of Teamsters v. United Parcel Serv. Co., 447 F.3d 491, 501–02 (6th Cir. 2006)
(Sutton, J.) (Section 152 Third “only protects an employee’s choice of a collective bargaining representative” (quotation marks omitted)). The Second Circuit
has construed the statute even more narrowly, holding that “the term ‘representative’ refers to the union
or other organization designated to represent an employee, and not merely to an individual official within
that organization.” United Transp. Union v. Nat’l
R.R. Passenger Corp., 588 F.3d 805, 812 (2d Cir.
2009).
In this case, the Fifth Circuit held—in direct conflict with the Sixth and Second Circuits—that Section
2
152 Third applies to all union officers, even officers of
“a local unit” who have no involvement whatsoever in
collective bargaining. Pet. App. 16a–17a. The court
concluded that the RLA “says that carriers shall not
‘seek in any manner’ to interfere with employees’
‘choice of representatives’; there is no mention of particular offices or duties those representatives must
have.” Id. (quoting 45 U.S.C. § 152 Third).
This Court’s review is warranted to resolve the
clear circuit split over who is covered by 45 U.S.C.
§ 152 Third.
Review is further warranted for a related reason.
By interpreting “representative” to include any union
officer, the court of appeals dramatically expanded the
reach of § 152 Third and created federal jurisdiction
over routine disciplinary disputes that are subject to
mandatory arbitration. The RLA requires that disciplinary and other “minor” disputes be resolved by a
specialized arbitration tribunal known as an Adjustment Board. See 45 U.S.C. § 153 First (i). But many
circuits, including the court below, have seized on
§ 152 Third’s language protecting the “choice of representatives” to recognize an unwritten “antiunion animus” exception. This purported exception allows union officials to circumvent mandatory arbitration and
bring their claim directly in federal district court
merely by alleging that the railroad’s disciplinary actions were motivated by antiunion animus. The
courts that recognize the exception reason that an antiunion animus claim is intended to vindicate the statutory right protecting the “choice of representatives”
rather than a contractual right established by the collective bargaining agreement, so it is properly heard
by a federal court. See, e.g., Pet. App. 12a.
3
This Court should grant review and hold that the
RLA’s mandatory arbitration provision contains no
exception for claims allegedly motivated by “antiunion
animus.” The purported exception defies the Act’s
plain text, and conflicts with this Court’s recognition
that arbitrators have “mandatory, exclusive, and comprehensive” jurisdiction over disciplinary disputes between railroads and their employees. Bhd. of Locomotive Eng’rs v. Louisville & Nashville R.R. Co., 373 U.S.
33, 38 (1963). It also conflicts with this Court’s recognition that once the employees’ bargaining representative is selected, federal jurisdiction over post union-certification disputes is extremely limited—and
does not exist where congressionally established remedies are available. As the Court explained in Trans
World Airlines, Inc. v. Independent Federation of
Flight Attendants, 489 U.S. 426, 441 (1989) (“TWA”),
“judicial intervention in RLA procedures [is] limited
to those cases where but for the general jurisdiction of
the federal courts, there would be no remedy to enforce the statutory commands which Congress [has]
written into the Railway Labor Act.” (quotation
marks omitted).
A case involving discipline over a fistfight in a
parking lot is a textbook example of a minor disciplinary dispute that does not belong in federal court and
should have been arbitrated. By holding that the local
union officers in this case are “representatives” under
45 U.S.C. § 152 Third—and that a disciplinary action
over a fistfight can be litigated in federal court based
merely on allegations that Union Pacific’s actions
were motivated by antiunion animus—the court of appeals eviscerated the congressional scheme designed
to channel these types of garden-variety disciplinary
disputes into arbitration.
4
OPINIONS BELOW
The Fifth Circuit’s opinion is reported at 31 F.4th
337. Pet. App. 1a. The Fifth Circuit’s order denying
rehearing en banc is not reported. Id. at 40a. The
order of the district court granting temporary and preliminary injunctive relief is not reported. Id. at 18a.
Neither the order of the district court staying the district court proceedings during the pendency of the
Fifth Circuit appeal, id. at 36a, nor its order continuing the stay of district court proceedings pending disposition of this petition, id. at 38a, is reported.
JURISDICTION
The Fifth Circuit entered its judgment on April
13, 2022, and denied Union Pacific’s timely petition
for rehearing en banc on May 10, 2022. On July 6,
2022, Justice Alito granted a 30-day extension of time
to file a petition for certiorari, up to and including September 7, 2022. This Court has jurisdiction under 28
U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
The Railway Labor Act, 45 U.S.C. §§ 151–165,
provides, in relevant part:
Representatives, for the purposes of this
chapter, shall be designated by the respective
parties without interference, influence, or coercion by either party over the designation of
representatives by the other; and neither
party shall in any way interfere with, influence, or coerce the other in its choice of representatives.
45 U.S.C. § 152 Third.
5
Employees shall have the right to organize
and bargain collectively through representatives of their own choosing. The majority of
any craft or class of employees shall have the
right to determine who shall be the representative of the craft or class for the purposes
of this chapter. No carrier, its officers, or
agents shall deny or in any way question the
right of its employees to join, organize, or assist in organizing the labor organization of
their choice . . . .
45 U.S.C. § 152 Fourth.
The disputes between an employee or group
of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning
rates of pay, rules, or working conditions, including cases pending and unadjusted on
June 21, 1934, shall be handled in the usual
manner up to and including the chief operating officer of the carrier designated to handle
such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either
party to the appropriate division of the Adjustment Board with a full statement of the
facts and all supporting data bearing upon
the disputes.
45 U.S.C. § 153 First (i).
STATEMENT OF THE CASE
A. The Railway Labor Act
The RLA protects the right of workers to choose
their representatives to negotiate collective bargain-
6
ing agreements on their behalf. After Congress enacted the initial version of the Act in 1926, railway
unions complained that carriers were interfering with
employees’ right to choose representatives and “attempting to undermine the employees’ participation
in the process of collective bargaining.” Int’l Ass’n of
Machinists v. Street, 367 U.S. 740, 759 (1961).
Congress therefore amended the Act in 1934, in
an effort to protect “the choice by employees of their
collective bargaining representatives.” Gen. Comm. of
Adjustment v. Mo.-Kan.-Tex. R.R. Co., 320 U.S. 323,
329 (1943). The amendments provided that “[r]epresentatives, for the purposes of this chapter, shall be
designated by the respective parties without interference, influence, or coercion,” and that “neither party
shall in any way interfere with, influence, or coerce
the other in its choice of representatives.” 45 U.S.C.
§ 152 Third. Congress further forbade railroads from
“deny[ing] or in any way question[ing] the right of its
employees to join, organize, or assist in organizing the
labor organization of their choice” and from “interfer[ing] in any way with the organization of its employees.” Id. § 152 Fourth.
The RLA provides for the designation of a single
“representative” for a particular craft or class of employees on a system-wide basis. Once a union has
been certified as the representative for a particular
craft or class, “the carrier shall treat with the representative so certified as the representative of the craft
or class for the purposes of this chapter.” 45 U.S.C.
§ 152 Ninth.
The RLA also provides a comprehensive framework for resolving post-certification disputes between
railroads and their employees. By providing “effective
7
and efficient remedies” for labor disagreements arising out of the interpretation of collective bargaining
agreements, Union Pac. R.R. Co. v. Sheehan, 439 U.S.
89, 94 (1978) (per curiam), Congress sought to achieve
“prompt and orderly settlement” of such disputes and
“[t]o avoid any interruption to commerce or to the operation of any carrier,” 45 U.S.C. § 151a.
The cornerstone of the Act’s dispute-resolution
framework is its arbitration mechanism. The Act requires that “minor” disputes be resolved through arbitration. See Union Pac. R.R. Co. v. Bhd. of Locomotive
Eng’rs & Trainmen, 558 U.S. 67, 72 (2009) (explaining
that Congress “mandate[d] arbitration of minor disputes”). A dispute qualifies as “minor” if it “grow[s]
out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or
working conditions.” 45 U.S.C. § 151a. In other
words, a dispute must be arbitrated if it “involve[s]
controversies over the meaning of an existing collective bargaining agreement in a particular fact situation.” Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246,
253 (1994) (quotation marks omitted). So long as the
party “assert[ing] a contractual right to take the contested action” is “arguably justified by the terms of the
parties’ collective-bargaining agreement,” the dispute
is considered minor. Consol. Rail Corp. v. Ry. Labor
Execs.’ Ass’n, 491 U.S. 299, 307 (1989). Disciplinary
matters have long been recognized as minor disputes.
See, e.g., Indep. Union of Flight Attendants v. Pan Am.
World Airways, Inc., 789 F.2d 139, 141 (2d Cir. 1986)
(“The labor-management boards . . . have exclusive jurisdiction over ‘minor disputes,’ which include disciplinary disputes even if involving employee discharge.”).
8
B. Proceedings Below
1. Petitioner Union Pacific Railroad Company is a
national rail carrier that operates throughout the
American West. Pet. App. 2a. Respondent Brotherhood of Locomotive Engineers and Trainmen is a labor
union that represents Union Pacific employees in collective bargaining and other matters. The union is organized into dozens of geographical divisions, each of
which elects its local representatives. Id. By its own
count, the union has more than 600 local union officers nationwide who represent Union Pacific locomotive engineers. See Brief of Appellant at 6, Bhd. of
Locomotive Eng’rs & Trainmen v. Union Pac. R.R. Co.,
31 F.4th 337 (5th Cir. 2022) (No. 21-50544), 2021 WL
3822940.
This case arises from a fistfight in a restaurant
parking lot in El Paso, Texas. In early 2021, tension
arose within Division 192—the local unit for Union
Pacific employees in and around El Paso—over the
union’s stance on employees taking extra shifts (called
“shoves”) at the railroad’s request. Pet. App. 2a. The
local union officers asked members not to accept
shoves, but one member, engineer David Cisneros,
continued to accept the extra work. Id. That did not
sit well with the Division 192 officers, some of whom
confronted Mr. Cisneros via text and social media
about his actions. Id. at 2a–3a. The disagreement
soon reached a boiling point. After arriving at a restaurant for a routine union meeting, Mr. Cisneros saw
the union officers that had confronted him—Peter
Shepard and Jose Reyes—in the restaurant parking
lot, and a fistfight ensued. Id. at 3a. In the aftermath
of the fight, Mr. Cisneros filed a complaint with Union
Pacific alleging that Mr. Shepard and Mr. Reyes had
9
threatened and assaulted him in retaliation for accepting shoves. Id.
Union Pacific began an investigation into six individuals—Mr. Shepard, Mr. Reyes, and four other Union Pacific employees, three of whom were local union
officers—who were involved in or witnessed the fight.
Pet. App. 3a. Union Pacific temporarily suspended all
six employees during the pendency of the investigation. Id. at 3a–4a.
Several days later, the union bypassed arbitration
and filed a complaint in the Western District of Texas.
Pet. App. 5a. The district court granted a preliminary
injunction, holding that the union was likely to succeed on its claim that Union Pacific’s commencement
of disciplinary proceedings interfered with employees’
“choice of representative” in violation of 45 U.S.C.
§ 152 Third. See Pet. App. 21a–22a. The court rejected Union Pacific’s argument that it lacked jurisdiction. It reasoned that, even though “the case may
also present a minor dispute,” the union had alleged
Union Pacific was motivated by antiunion animus and
the court had jurisdiction to enforce 45 U.S.C. § 152
Third. Pet. App. 28a.
2. The court of appeals affirmed, holding that
“the animus exception gave the district court jurisdiction to intervene.” See Pet. App. 2a, 17a.
First, the court rejected Union Pacific’s argument
that § 152 Third provided no basis for jurisdiction because the employees at issue were local officers who
did not represent employees in collective bargaining.
Pet. App. 16a–17a; see also Hearing on Motion for
Temporary and Preliminary Injunctive Relief at 22,
Bhd. of Locomotive Eng’rs & Trainmen v. Union Pac.
R.R. Co., No. 21-cv-122 (W.D. Tex. June 17, 2021),
Dkt. 39 (respondent’s admission that the local officers
10
were not involved in collective bargaining) (“Hearing
Transcript”). The court held that federal courts
properly “exercise[ ] jurisdiction over interference
claims involving disciplinary actions that target[ ] an
individual union representative or a particular union
branch.” Pet. App. 16a. The court noted that the RLA
“says that carriers shall not ‘seek in any manner’ to
interfere with employees’ ‘choice of representatives’;
there is no mention of particular offices or duties those
representatives must have.” Id. at 16a–17a (quoting
45 U.S.C. § 152 Third).
Second, the court held that the alleged violation
of § 152 Third triggered the antiunion animus exception, empowering the court to exercise jurisdiction rather than dismissing the case in favor of arbitration.
The court explained that federal jurisdiction exists because antiunion animus claims present a statutory
question under § 152 Third that is independent of the
collective bargaining agreement. Pet. App. 10a–11a,
13a. In short, the court concluded, “[f]ederal courts
thus have jurisdiction over postcertification disputes
alleging that railroad conduct motivated by antiunion
animus is interfering with the employees’ ‘choice of
representatives.’” Id. at 14a (quoting 45 U.S.C. § 152).
3. After the court of appeals denied rehearing en
banc, Pet. App. 40a–41a, the district court stayed all
further proceedings pending this Court’s disposition
of Union Pacific’s petition for a writ of certiorari, id.
at 38a.
11
REASONS FOR GRANTING THE PETITION
I.
This Court Should Resolve The Circuit Split
Over The Scope Of The Railway Labor Act’s
Non-Interference Mandate.
The Railway Labor Act provides that neither a
railroad nor a labor organization shall “in any way interfere with, influence, or coerce the other in its choice
of representatives.” 45 U.S.C. § 152 Third. The circuits are intractably split over who qualifies as a “representative” entitled to protection under the statute.
This is a critically important question because, as this
case illustrates, giving “representative” an expansive
reading threatens to open the floodgates to federal
court litigation over garden-variety disciplinary actions that Congress and this Court have recognized
must be arbitrated.
A. The Circuits Are Split Over The
Meaning Of “Representative” In 45
U.S.C. § 152 Third.
The circuits have adopted conflicting interpretations as to who is a “representative.”
The Fifth Circuit holds that “representative” includes any union officer who represents union members for any purpose or in any capacity. See Pet. App.
16a–17a. Officers of a local unit are covered even if
they have no involvement in collective bargaining. In
the Fifth Circuit’s view, federal courts have long “exercised jurisdiction over interference claims involving
disciplinary actions that targeted an individual union
representative or a particular union branch.” Id. at
16a. The court rests its interpretation on “the RLA’s
text,” which “says that carriers shall not ‘seek in any
manner’ to interfere with employees’ ‘choice of representatives’; there is no mention of particular offices or
12
duties those representatives must have.” Id. at 16a–
17a (quoting 45 U.S.C. § 152 Third). Thus, the court
held that disciplinary action against the local union
officers in this case—individuals who respondent conceded had no involvement in collective bargaining, see
Hearing Transcript at 22, was nonetheless actionable
under § 152 Third. Under this approach, every one of
respondent’s more than 600 officers would qualify as
a “representative” within the meaning of § 152 Third.
The Sixth Circuit, in contrast, holds that “representative” means a collective bargaining representative and none other. In International Brotherhood of
Teamsters v. United Parcel Service Co., 447 F.3d 491
(6th Cir. 2006) (Sutton, J.), the court held that Section
152 Third “protects the rights of employees to choose
their own collective bargaining representative, not to
choose any member of any committee ever set up by a
collective bargaining agreement, whether called a
‘representative’ or not.” Id. at 501 (cleaned up). Especially when “[r]ead in conjunction with other parts
of the section,” it is clear that the provision “concerns
the collective-bargaining process and other interactions between employer and employee that occur before the parties enter into (or re-negotiate) a collective
bargaining agreement.” Id. The court concluded that
because the union officer was not involved in collective
bargaining, a dispute over the carrier’s refusal to allow that officer to serve on a safety committee was not
covered by Section 152 Third and was “subject[ ] to
mandatory arbitration.” Id.
The Second Circuit, in contrast to the Fifth and
Sixth Circuits, holds that “representative” means the
union itself, not an individual union officer. In United
Transportation Union v. National Railroad Passenger
Corp., 588 F.3d 805 (2d Cir. 2009), the court held that
13
the “provisions of the RLA suggest that the term ‘representative’ refers to the union or other organization
designated to represent an employee, and not merely
to an individual official within that organization.” Id.
at 812. Thus, the court concluded, an Amtrak employee that served as a union officer did not qualify as
a “representative” for purposes of an interference
claim under Section 152 Third. The court noted that
Section 152 Ninth provides that if there is a dispute
“among employees ‘as to who are the representatives
of such employees,’ it is the duty of the mediation
board to resolve this dispute, and thereafter, ‘the carrier shall treat with the representative so certified as
the representative of the craft or class for the purposes
of this chapter.’” Id. (quoting 45 U.S.C. § 152 Ninth).
This context, the court concluded, indicated that “representative” means the actual union rather than a union officer.
The outcome of this case would have been different if it had arisen in the Sixth or Second Circuits.
Under the Fifth Circuit’s rule, the local officers at issue here are “representatives” under § 152 Third and
the case can proceed in federal court. But under the
rule in the Sixth or Second Circuits, the local officers
would not have been “representatives” under § 152
Third and the case could not have proceeded in federal
court. It would have been sent to arbitration.
B. The Fifth Circuit’s Interpretation Is
Inconsistent With Decisions Of This
Court.
The court of appeals’ expansive interpretation of
Section 152 Third is in substantial tension with decisions of this Court. Although this Court has yet to
definitely decide the question, it has strongly suggested that “representative” in Section 152 Third does
14
not extend to all union officers but, as the Sixth Circuit held, only to those officers who serve as collective
bargaining representatives.
In General Committee of Adjustment v. MissouriKansas-Texas Railroad Co., 320 U.S. 323 (1943), the
Court explained that “Congress stated in § 2, Fourth
. . . that the choice by employees of their collective bargaining representatives should be free from the carriers’ coercion and influence.” Id. at 329. Similarly, in
International Association of Machinists v. Street, 367
U.S. 740 (1961), the Court recognized that Congress
enacted Section 152 Third “to reinforce the prohibitions against interference with the choice of representatives” and thus prevent carriers from “attempting to undermine the employees’ participation in the
process of collective bargaining.” Id. at 759.
The Fifth Circuit’s interpretation of an RLA “representative” goes well beyond the narrow scope this
Court has indicated. If this Court is correct in suggesting that Congress confined Section 152 Third to
employees’ choice of a bargaining representative, then
the court of appeals got it wrong in extending the statutory protection to all union members who can be
deemed “representatives”—regardless of the “duties
those representatives . . . have.” Pet. App. 16a–17a.
II. This Court Should Grant Review And Hold
There Is No Antiunion Animus Exception.
The court of appeals recognized and applied an
antiunion animus exception to the Railway Labor
Act’s requirement of mandatory arbitration. In doing
so, the court aligned itself with the six other circuits
that have recognized some version of the exception.
See, e.g., Ass’n of Flight Attendants, AFL-CIO v. Horizon Air Indus., Inc., 280 F.3d 901, 906 (9th Cir. 2002);
Wightman v. Springfield Terminal Ry. Co., 100 F.3d
15
228, 234 (1st Cir. 1996); Bhd. of Locomotive Eng’rs v.
Kan. City S. Ry. Co., 26 F.3d 787, 795 (8th Cir. 1994);
Davies v. Am. Airlines, Inc., 971 F.2d 463, 468 (10th
Cir. 1992); Indep. Union of Flight Attendants v. Pan
Am. World Airways, Inc., 789 F.2d 139, 142 (2d Cir.
1986); Conrad v. Delta Air Lines, Inc., 494 F.2d 914,
918 (7th Cir. 1974).
Although seven circuits have recognized the antiunion animus exception, its scope varies by circuit.
The Fifth Circuit gives it a broad reading, holding that
the exception applies to ordinary disciplinary proceedings. See, e.g., Bhd. of R.R. Trainmen v. Cent. of Ga.
Ry. Co., 305 F.2d 605, 609 (5th Cir. 1962) (holding that
an individual employee subject to a disciplinary hearing could bypass arbitration and bring a § 152 Third
claim in court). Other courts, in contrast, recognize a
much narrower version of the exception. They hold
that the exception is reserved for “extraordinary”
cases—those in which the employer’s conduct rises to
such an extreme level that it threatens the collective
bargaining process or the very existence of the union
itself, and cannot be remedied through the mandatory
arbitration procedures in 45 U.S.C. § 153 First (i).
See, e.g., Nat’l R.R. Passenger Corp. v. Int’l Ass’n of
Machinists & Aerospace Workers, 915 F.2d 43, 53 (1st
Cir. 1990) (concluding that “the disciplinary investigation of the three Union representatives in the case
at hand, even if unjustified, does not approach the
kind of extraordinary anti-union animus” that opens
the doors to federal court); Wightman, 100 F.3d at 234
(“In post-certification disputes . . . we must limit our
intervention to cases in which the aggrieved union has
no other remedy to enforce the statutory commands
which Congress had written into the [RLA]” (quotation marks omitted)); Indep. Union of Flight Attendants, 789 F.2d at 141 (“The labor-management boards
16
. . . have exclusive jurisdiction over ‘minor disputes,’
which include disciplinary disputes even if involving
employee discharge.”).
This Court should grant review and hold that
there is no antiunion animus exception to the RLA’s
mandatory arbitration requirement. The purported
exception defies the plain language and purpose of the
Act, and conflicts with this Court’s precedents. This
Court has never recognized the exception. To the contrary, it has described the Act’s arbitration requirement as “mandatory, exclusive, and comprehensive.”
Bhd. of Locomotive Eng’rs v. Louisville & Nashville
R.R. Co., 373 U.S. 33, 38 (1963). The unwritten animus exception is a product of a “bygone era” when
courts took “a more freewheeling approach to interpreting legal texts.” Shurtleff v. City of Boston, 142 S.
Ct. 1583, 1603 (2022) (Gorsuch, J., concurring in the
judgment) (quotation marks omitted). Its time has
passed.
At a minimum, review is warranted to clarify the
scope of the exception. Even if this Court were to affirm the exception’s existence, it should ensure that
the circuits are applying the exception consistently.
A. The Animus Exception Defies The
Statute’s Text And Purpose, And
Conflicts With This Court’s Decisions.
1. The Railway Labor Act provides for mandatory arbitration of minor disputes—those that arise
from grievances or concern the collective bargaining
agreement—at the request of either party. The statute provides:
The disputes between an employee or group
of employees and a carrier or carriers grow-
17
ing out of grievances or out of the interpretation or application of agreements concerning
rates of pay, rules, or working conditions . . .
may be referred by petition of the parties or
by either party to the appropriate division of
the Adjustment Board with a full statement
of the facts and all supporting data bearing
upon the disputes.
45 U.S.C. § 153 First (i). The statute says nothing
about an exception for claims of antiunion animus.
In accordance with the statute’s plain language,
this Court has long recognized that arbitration of minor disputes is mandatory. See, e.g., Union Pac. R.R.
Co. v. Bhd. of Locomotive Eng’rs & Trainmen, 558
U.S. 67, 72 (2009) (Congress amended the RLA in
1934 “to mandate arbitration of minor disputes”); Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252
(1994) (“the RLA establishes a mandatory arbitral
mechanism for ‘the prompt and orderly settlement’” of
“‘minor’ disputes”); Louisville & Nashville R.R. Co.,
373 U.S. at 38 (the “statutory grievance procedure is
a mandatory, exclusive, and comprehensive system
for resolving grievance disputes”).
Parties may not frustrate that mandate by choosing to bring minor disputes in court instead of arbitration. See Andrews v. Louisville & Nashville R.R. Co.,
406 U.S. 320, 322 (1972) (holding that arbitration is
the “exclusive” remedy for minor disputes); Louisville
& Nashville R.R. Co., 373 U.S. at 38 (“the other party
may not defeat [the right to arbitration] by resorting
to some other forum”); Bhd. of R.R. Trainmen v. Chi.
River & Ind. R.R. Co., 353 U.S. 30, 34 (1957) (rejecting
the argument that “parties are free to make use of [the
arbitration] procedures if they wish to; but that there
is no compulsion on either side to allow the Board to
18
settle a dispute if an alternative remedy” is “more desirable”). After all, “if a carrier or a union could choose
a court instead of the Board, the other party would be
deprived of the privilege conferred by § 3, First (i) of
the Railway Labor Act,” Order of Ry. Conductors v. S.
Ry. Co., 339 U.S. 255, 256–57 (1950), and the mandatory arbitration scheme would be rendered a nullity.
This Court’s approach is faithful to the Act’s text
and statutory history. Chi. River & Ind. R.R. Co., 353
U.S. at 33–35 (a “literal interpretation of the [RLA]”
reveals its mandatory nature). Section 153 empowers
“either party” to submit a minor dispute to arbitration. 45 U.S.C. § 153 First (i). And the arbitral process culminates in an award that is final and binding.
Id. § 153 First (m). Only then may a party seek judicial review in connection with a minor dispute. See id.
§ 153 First (q). That Congress intended arbitration to
be mandatory for minor disputes is also evident from
the Act’s amendment history. “[T]he 1934 amendments were enacted because the scheme of voluntary
arbitration contained in the original Railway Labor
Act had proved incapable of achieving peaceful settlements of grievance disputes.” Louisville & Nashville
R.R. Co., 373 U.S. at 36 (footnote omitted; emphasis
added). By modifying the original act so that “either
party” could initiate arbitration, Congress corrected
the Act’s principal defect by making arbitration compulsory. See Union Pac. R.R. Co., 558 U.S. at 72.
2. The antiunion animus exception also conflicts
with Trans World Airlines, Inc. v. Independent Federation of Flight Attendants, 489 U.S. 426 (1989).
First, the exception conflicts with TWA’s recognition that once the employees’ bargaining representative has been selected, federal jurisdiction does not exist where congressionally established remedies are
19
available. See TWA, 489 U.S. at 441 (“judicial intervention in RLA proceedings [is] limited to those cases
where but for the general jurisdiction of the federal
courts there would be no remedy to enforce the statutory commands which Congress [has] written into the
Railway Labor Act” (quotation marks omitted)). Here,
there is an adequate alternative remedy: Animus
claims based on § 152 Third may be decided by the arbitration panel. See, e.g., United Transp. Union, 588
F.3d at 814. This Court has emphasized that when
Congress establishes an administrative remedy for
vindicating statutory rights, courts should not secondguess that remedy by allowing litigants to circumvent
it. See Switchmen’s Union of N. Am. v. Nat’l Mediation Bd., 320 U.S. 297, 300–06 (1943) (“it is for Congress to determine how the rights which it creates
shall be enforced”).
Second, the exception conflicts with the TWA
Court’s recognition that § 152 Third primarily applies
before employees choose a collective-bargaining representative. “[T]he 1934 amendments,” which modified
§ 152 Third and Fourth to strengthen protections for
the selection of “representatives,” were “directed particularly at control over the initial step in collective
bargaining—the determination of the employees’ representatives.” TWA, 489 U.S. at 441 (quotation marks
omitted; emphasis added). Accordingly, the non-interference principles established in § 152 Third and
Fourth “addres[s] primarily the precertification rights
and freedoms of unorganized employees.” Id. at 440
(emphases added). That is consistent with the Court’s
repeated admonition that § 152 Third protects the
right of employees to choose their collective bargaining representatives. See supra I.B (citing Gen. Comm.
of Adjustment v. Mo.-Kan.-Tex. R.R. Co., 320 U.S. 323
(1943), and Int’l Ass’n of Machinists v. Street, 367 U.S.
20
740 (1961)). The animus exception turns that principle on its head by using § 152 Third to justify postcertification judicial intervention into minor disputes involving officers who are not engaged in collective bargaining, and for whom the mandatory arbitration procedures under § 153 First (i) can provide complete relief.
The animus exception enables unions embroiled
in minor disputes to circumvent arbitration. Indeed,
the courts that recognize the exception acknowledge
that it pulls into federal court disputes that otherwise
would be arbitrated. See, e.g., Bhd. of Ry. Carmen
(Div. of TCU) v. Atchison, Topeka & Santa Fe Ry. Co.,
894 F.2d 1463, 1468 n.10 (5th Cir. 1990) (actions
taken “for the purpose of weakening or destroying a
union” present a “special circumstanc[e] in which federal courts may assert jurisdiction over cases that
would otherwise involve minor disputes subject to
compulsory arbitration”); Indep. Union of Flight Attendants, 789 F.2d at 141–42 (a dispute “concerning
existing rights” arising under § 153’s arbitration provision “might nonetheless” be brought in court when
“it is clear that the employer’s conduct has ‘been motivated by anti-union animus’”); see also Pet. App. 11a
(“The treatise focused on the RLA also recognizes that
courts can exercise jurisdiction over a disciplinary
proceeding that ‘raises issues that can be resolved by
interpretation of a [collective bargaining agreement]’
if ‘the plaintiff can demonstrate antiunion animus[.]’”).1
1
Some courts justify the animus exception on the basis that
animus claims present statutory questions about § 152 rather
than contractual questions about collective bargaining agree-
21
B. The Animus Exception Rewrites The
RLA And Erases Important Distinctions
Between Labor Statutes.
The antiunion animus exception also erases important distinctions that Congress created between
the Railway Labor Act and the National Labor Relations Act (“NLRA”).
The NLRA generally prohibits interference with
“concerted activity for . . . mutual aid or protection”
and makes it unlawful for employers to engage in employment discrimination in an effort to “discourage
membership in any labor organization.” 29 U.S.C.
§§ 157, 158(a)(1), (3). Moreover, the NLRA creates an
administrative agency—the National Labor Relations
Board—to adjudicate such claims. See 29 U.S.C.
§ 160. In doing so, the Board must consider whether
“antiunion animus was a substantial or motivating
factor in [an employee’s] discharge.” Big Ridge, Inc. v.
NLRB, 808 F.3d 705, 713 (7th Cir. 2015). Thus, aggrieved employees may seek redress for disciplinary
actions that are actually motivated by animus.
ments, and thus those claims simply do not qualify as minor disputes subject to arbitration. E.g., Pet. App. 12a–13a. That is
incorrect. The RLA expressly incorporates § 152 Third and
Fourth into collective bargaining agreements. 45 U.S.C. § 152
Eighth (“The provisions of” the “third [and] fourth” paragraphs
of § 152 “are made a part of the contract of employment between
the carrier and each employee, and shall be held binding upon
the parties, regardless of any other express or implied agreements between them.”). So questions about whether the carrier
acted with animus do involve the interpretation and application
of the collective bargaining agreement. See, e.g., United Transp.
Union, 588 F.3d at 814. Regardless, even if animus claims present statutory questions, “[c]ourts do not have a roving writ to
supplant” arbitration “under the guise of adjudicating ‘statutory
rights.’” Air Line Pilots Ass’n Int’l v. Guilford Transp. Indus.,
Inc., 399 F.3d 89, 105 (1st Cir. 2005).
22
The RLA, by contrast, contains no such freestanding anti-discrimination provision, nor does it
create an administrative agency to adjudicate such
claims. Section 152 Third prohibits interference with
employees’ right to select and maintain a collective
bargaining representative of their choice. Those provisions do not purport to protect all union officers from
any conduct allegedly arising from antiunion animus.
By giving § 152 Third a contrary interpretation, the
antiunion animus exception effectively rewrites the
RLA to mirror the NLRA’s anti-discrimination provision as applied to union officers, and vests federal
courts with jurisdiction over such claims because no
administrative agency exists to handle them. That is
inconsistent with the text of the two statutes and this
Court’s decisions.
***
The antiunion animus exception has no basis in
the RLA’s text and conflicts with this Court’s decisions. Reading the Railway Labor Act to include an
exception that allows parties to circumvent the statute’s “mandatory, exclusive, and comprehensive” arbitration scheme, Louisville & Nashville R.R. Co., 373
U.S. at 38, is “to invent a statute rather than interpret
one,” Clark v. Martinez, 543 U.S. 371, 378 (2005). The
Court should grant review and hold that the RLA does
not contain an antiunion animus exception.
III. The Questions Presented Are Exceptionally
Important.
This Court has long recognized the importance of
questions arising under the RLA—a statute that governs the day-to-day operations of the nation’s railroads. See, e.g., Louisville & Nashville R.R. Co., 373
U.S. at 36 (granting “certiorari to consider an obvi-
23
ously substantial question affecting the administration of the Railway Labor Act”); Chi. River & Ind. R.R.
Co., 353 U.S. at 33 (granting “certiorari in order to resolve an important question concerning interpretation
and application of the Railway Labor Act”); Elgin, Joliet & E. Ry. Co. v. Burley, 325 U.S. 711, 713 (1945)
(granting certiorari “to resolve . . . important questions affecting application and operation of the [Railway Labor] Act”); Switchmen’s Union, 320 U.S. at 300
(granting certiorari “because of the importance of the
problems which are raised”); see also Gunther v. San
Diego & Ariz. E. Ry. Co., 382 U.S. 257, 260 (1965)
(granting certiorari because the holding of the lower
courts “r[a]n counter to the requirements of the Railway Labor Act as [the Court] ha[s] construed it”).
Resolving the RLA circuit split presented here is
critically important because the court of appeals’ mistaken approach threatens to inundate the courts with
litigation over ordinary disciplinary decisions. The
number of union members who could claim to be “representatives” of one sort or another is astronomical. It
would include officers of local divisions, such as the
individuals involved in this case. And it would include
union members who serve on the universe of national
or local committees and would consequently claim to
represent union members in that capacity. Even considering only the single union involved in this case, it
has more than 600 officers that would fall under § 152
Third even though the majority of them have nothing
to do with the collective bargaining process. If the
court of appeals’ decision is allowed to stand, routine
disputes about whether an employee’s actions warranted discipline will morph into federal court litigation over whether the carrier has interfered with its
employees’ choice of representative. Giving federal
courts jurisdiction over garden-variety disciplinary
24
actions is precisely what Congress sought to avoid by
enacting the Railway Labor Act.
Nor can the importance of the second question
presented be seriously questioned. The antiunion animus exception strikes at “[t]he heart of the Railway
Labor Act”—its dispute-resolution procedures. See
Bhd. of R.R. Trainmen v. Jacksonville Terminal Co.,
394 U.S. 369, 377–78 (1969). The exception guts the
“mandatory” and “exclusive” arbitral scheme by permitting unions to circumvent the RLA merely by alleging that routine disciplinary actions involving employees who happen to hold union office are motivated
by antiunion animus. If the mere allegation of animus
in violation of § 152 Third suffices to sue in federal
court, Pet. App. 13a–14a, the Act’s carefully wrought
arbitration scheme will disintegrate at an accelerated
pace as the thousands of arbitrations that occur per
year may now more easily be channeled into federal
court, see Nat’l Mediation Bd., Annual Performance &
Accountability Report FY 2021, at 38 (2021).
The animus exception likewise frustrates the
Act’s statutory purposes. After witnessing a “complete breakdown” in the Act’s dispute-resolution process when arbitration was voluntary, Congress
amended the Act to make arbitration mandatory. Elgin, 325 U.S. at 725–27. It did so because it determined that disputes about the application of workplace rules were best adjudicated by “an expert body”
uniquely “familiar with the thorny problems and the
whole range of grievances that constantly exist in the
railroad world.” See Gunther, 382 U.S. at 261. The
Adjustment Board, whose membership “is in daily
contact with workers and employers, and knows the
industry’s language, customs, and practices,” provided the expertise Congress desired. Id. The animus
25
exception turns the Act upside down by rerouting untold numbers of minor disputes away from the Adjustment Board and towards the courts.
Worse still, the animus exception flouts the Act’s
stated goal of prompt settlement of minor disputes. 45
U.S.C. § 151a. Congress channeled minor disputes
through arbitration to streamline their resolution; it
deemed it “essential” to keep those disputes “out of the
courts.” Union Pacific R.R. Co. v. Sheehan, 439 U.S.
89, 94 (1978) (emphasis added). The Act’s limitations
on judicial review are thus an important feature of the
statutory design—not a bug. See Union Pac., 558 U.S.
at 74 (explaining that the RLA “largely ‘foreclose[d]
litigation’ over minor disputes” (alteration in original)); Order of Ry. Conductors v. Pitney, 326 U.S. 561,
566 (1946) (“Congress . . . intended to leave a minimum responsibility to the courts” over minor disputes.). But the antiunion animus exception diverts
cases back into court, which inevitably delays dispute
resolution and threatens to “interrup[t]” the “operation of [railroads]” engaged in commerce. 45 U.S.C.
§ 151a.
The animus exception has the pernicious effect of
entangling federal courts in the day-to-day operations
of carriers. Nearly a century ago, the Court emphasized that the Act “does not interfere with the normal
exercise of the right of the carrier to select its employees or to discharge them.” Tex. & New Orleans R.R.
Co. v. Bhd. of Ry. & S.S. Clerks, 281 U.S. 548, 571
(1930) (emphasis added). It is instead focused on “the
right of employees to have representatives of their
own choosing.” Id. This case illustrates how far
courts have departed from that understanding. The
court of appeals upheld an injunction requiring the
26
railroad to end its disciplinary investigation immediately, rescind the suspension, and order the return of
those employees to work. Pet. App. 4a–5a, 14a. Under the guise of enforcing § 152 Third, the animus exception co-opts federal courts into policing contractbased workplace disputes, all in defiance of the mandatory arbitration scheme Congress created.
This case is an excellent vehicle for resolving the
circuit split over the meaning of “representative” and
for deciding whether the Railway Labor Act contains
an antiunion animus exception. The questions are
cleanly presented because the court of appeals’ judgment rests entirely on its interpretation of § 152
Third. The court of appeals squarely decided the
question of who qualifies as a “representative” in a
way that directly conflicts with decisions from other
circuits. The court of appeals also squarely held that
the RLA contains an antiunion animus exception.
And there are no factual disputes that would prevent
this Court from resolving the pure questions of statutory interpretation. Neither of the questions presented requires further percolation in the lower
courts. The circuit split is mature, and the majority
of circuits—7 of 13—have already ruled on the existence of the exception. Although the case comes to this
Court in an interlocutory posture, the district court
proceedings have been stayed since Union Pacific appealed to the Fifth Circuit, Pet. App. 36a–39a, and the
proceedings will remain stayed pending disposition of
this petition. Consequently, there is no risk of this
dispute becoming moot; the district court proceedings
have been suspended and will remain suspended until
this Court rules.
27
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
Robert S. Hawkins
Andrew J. Rolfes
COZEN O’CONNOR
One Liberty Place
1650 Market Street
Philadelphia, PA 19103
(215) 665-2000
Thomas H. Dupree Jr.
Counsel of Record
Philip Hammersley
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
(202) 955-8500
tdupree@gibsondunn.com
Counsel for Petitioner
September 7, 2022
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.