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.

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Petition for Writ of Certiorari — Union Pacific Railroad Company, Petitioner v. Brotherhood of Locomotive Engineers and Trainmen | Frix