Amicus Curiae Brief — Union Pacific Railroad Company, Petitioner v. Brotherhood of Locomotive Engineers and Trainmen

No. 22-220

IN THE

Supreme Court of the United States

UNION PACIFIC RAILROAD COMPANY,

Petitioner,

v.

BROTHERHOOD OF LOCOMOTIVE ENGINEERS

AND TRAINMEN,

Respondent.

On Petition For Writ of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

BRIEF OF ASSOCIATION OF AMERICAN

RAILROADS AND NATIONAL RAILWAY

LABOR CONFERENCE AS AMICI CURIAE

IN SUPPORT OF PETITIONER

DONALD J. MUNRO

Counsel of Record

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

dmunro@jonesday.com

Counsel for Amici Curiae Association of American

Railroads and National Railway Labor Conference

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... ii

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT .............................................................. 3

I.

II.

The Issues in This Case Are of Vital

Importance to the National Interest

in the Operation of the Railroad and

Airline Industries ............................................... 3

A.

Railroad Employee Disciplinary

Disputes Belong in Arbitration.................. 4

B.

The Fifth Circuit’s Ruling Allows

Unions To Evade Arbitration .................... 7

C.

The Fifth Circuit’s Ruling

Perpetuates the Mistaken

Assumption that Section 2

Third Provides an Implied

Cause of Action ......................................... 10

The Court Should Resolve the

Confusion in the Lower Courts

Over the Scope and Meaning of

Section 2 Third ................................................. 12

CONCLUSION ......................................................... 16

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Alexander v. Sandoval,

532 U.S. 275 (2001) ........................................ 10, 11

Amtrak v. IAMAW,

915 F.2d 43 (1st Cir. 1990) .................................... 7

Andrews v. Louisville & Nashville R.R.,

406 U.S. 320 (1972) ................................................ 4

Ass’n of Flight Attendants, AFL-CIO v.

Horizon Air Indus., Inc.,

280 F.3d 901 (9th Cir. 2002) .................... 7, 8, 9, 15

Bhd. of Locomotive Eng’rs v. Kan.

City S. Ry.,

26 F.3d 787 (8th Cir. 1994) .................................. 14

BMWED v. BNSF Ry.,

134 F. Supp. 3d 1208 (C.D. Cal. 2015) .................. 7

BMWED v. CSX Transp., Inc.,

143 F. App’x 155 (11th Cir. 2005) ......................... 8

BMWED v. Norfolk S. Ry.,

745 F.3d 808 (7th Cir. 2014) .............................. 7, 8

BRC v. Atchison, Topeka & Santa Fe Ry.,

894 F.2d 1463 (5th Cir. 1990) ................................ 8

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

402 U.S. 570 (1971) .............................................. 12

Consol. Rail Corp. v. Ry. Labor

Execs.’ Ass’n,

491 U.S. 299 (1989) ............................ 2, 3, 4, 6, 7, 8

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

Dempsey v. Atchison, Topeka & Santa

Fe Ry.,

16 F.3d 832 (7th Cir. 1994) .................................. 14

Gen. Comm. of Adjustment, UTU v.

CSX R.R.,

893 F.2d 584 (3d Cir. 1990) ................................... 6

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

382 U.S. 257 (1965) ................................................ 5

IAMAW v. Nw. Airlines, Inc.,

673 F.2d 700 (3rd Cir. 1982) .................................. 7

Indep. Union of Flight Attendants v.

Pan Am. World Airways, Inc.,

789 F.2d 139 (2d Cir. 1986) ............................. 7, 14

Int’l Bhd. of Teamsters, AFL-CIO

v. UPS Co.,

447 F.3d 491 (6th Cir. 2006) .................................. 7

J. I. Case Co. v. Borak,

377 U.S. 426 (1964) .............................................. 10

Nat’l R.R. Passenger Corp. v. Nat’l

Ass’n of R.R. Passengers,

414 U.S. 453 (1974) .............................................. 11

Order of Ry. Conductors of Am. v. Pitney,

326 U.S. 561 (1946) ............................................ 4, 5

Slocum v. Del., Lackawanna & W. R.R.,

339 U.S. 239 (1950) ............................................ 4, 5

Thompson v. Thompson,

484 U.S. 174 (1988) .............................................. 11

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Trans World Airlines, Inc. v. Indep.

Fed’n of Flight Attendants,

489 U.S. 426 (1989) .......................................... 8, 15

Transamerica Mortg. Advisors,

Inc. v. Lewis,

444 U.S. 11 (1979) ................................................ 11

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

439 U.S. 89 (1978) .............................................. 2, 4

United Steelworkers of Am. v. Warrior

& Gulf Navigation Co.,

363 U.S. 574 (1960) ................................................ 4

UTU v. Amtrak,

588 F.3d 805 (2d Cir. 2009) ................................... 7

Virginian Ry. v. Sys. Fed’n,

300 U.S. 515 (1937) ................................................ 3

Wightman v. Springfield Terminal Ry.,

100 F.3d 228 (1st Cir. 1996) ................................ 14

STATUTES

45 U.S.C. § 152 .......................................................... 12

45 U.S.C. § 153 ............................................................ 4

OTHER AUTHORITIES

BMWE v. CSX Transp., Inc.,

Award No. 35022, NRAB Third Div.

(Kenis, Arb.) (Oct. 25, 2000) .................................. 6

National Mediation Board Open/Closed

Case Report ............................................................ 5

v

TABLE OF AUTHORITIES

(continued)

Page(s)

TCU v. Chi., Cent. & Pac. R.R.,

Award No. 30681, NRAB Third Div.

(Malin, Arb.) (Jan. 31, 1995).................................. 6

UTU v. Soo Line R.R.,

Award No. 25200, NRAB First Div.

(Peterson, Arb.) (May 14, 2001) ............................. 6

1

INTEREST OF AMICI CURIAE 1

The Association of American Railroads (“AAR”) is

a trade association whose membership includes

freight railroads that operate approximately 77 percent of the U.S. rail industry’s line haul mileage, produce 97 percent of its freight revenues, and employ 94

percent of all railroad employees. The AAR’s members also include passenger railroads that operate intercity passenger trains and provide commuter rail

service. The AAR frequently appears before Congress,

the courts, and administrative agencies on issues of

national concern to the railroad industry.

The National Railway Labor Conference (“NRLC”)

is an unincorporated association of all of the nation’s

Class I freight railroads and a number of smaller

freight and passenger railroads. The NRLC represents its members in multi-employer collective bargaining under the RLA and with regard to other laborrelated matters of concern to the railroad industry as

a whole.

The AAR and the NRLC (and their respective

members) have a substantial interest in this case because the result below implicates the employee disciplinary dispute resolution process in the railroad industry. For the better part of 100 years, employee disIn accordance with Supreme Court Rule 37.6, amici AAR and

NRLC state that this brief was not authored in whole or in part

by any party or counsel for any party. No person or party other

than AAR, NRLC and their counsel made a monetary contribution to the preparation or submission of this brief. Counsel of record for all parties received notice of the filing of this brief in compliance with Supreme Court Rule 37.2, and each has consented

in writing to the filing of this brief.

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cipline disputes have been resolved through arbitration under Section 3 First of the RLA. Because arbitration is the most efficient and effective way of resolving employee discipline claims, the industry has a

keen interest in keeping “these so-called ‘minor’ disputes within the Adjustment Board and out of the

courts.” Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89,

94 (1978).

SUMMARY OF ARGUMENT

This is the most important case under the Railway

Labor Act to come before this Court in more than 30

years, since this Court’s decision in Consolidated Rail

Corporation v. Railway Labor Executives’ Association,

491 U.S. 299 (1989) (“Conrail”). For decades, labor unions and rail carriers have battled over how to handle

disputes that implicate the interpretation or application of collective bargaining agreements, including

challenges to employee discipline. Railroads (and airlines) have fought to preserve arbitration as the exclusive venue for employee claims. Unions, by contrast,

often want to bring these claims in court, on the theory that judges—who are less familiar than arbitrators with the nuances of the parties’ agreements—are

more likely to rule in the employees’ favor.

Until now, the unions have largely failed in their

attempts to circumvent arbitration. But the Fifth Circuit’s ill-advised ruling in this case enables and invites litigation over run-of-the-mill discipline cases in

federal court. It also perpetuates the invalid notion

that Section 2 Third provides a private right of action

for employees and unions, separate and apart from

the process for enforcing Section 2 Third set forth in

Section 2 Tenth of the RLA.

3

To best ensure the efficient functioning of the national transportation system, arbitration must remain the exclusive venue for the hundreds of railroad

discipline cases that are filed each year. As it has in

the past when RLA arbitration has been questioned,

this Court should grant certiorari to preserve that

statutorily-mandated dispute resolution process.

The Court should also grant certiorari to clear up

the confusion in the lower courts over the scope of Section 2 Third. Aside from the specific circuit split identified by Union Pacific in its petition—concerning the

meaning of the term “representative” in Section 2

Third—the lower courts have also announced varied

and conflicting standards for what constitutes a violation of Section 2 Third. The existing body of case law

therefore fails to provide clear guidance to litigants

(on both sides) about how to interpret and apply Section 2 Third.

ARGUMENT

I.

The Issues in This Case Are of Vital

Importance to the National Interest in the

Operation of the Railroad and Airline

Industries.

Since 1926, when the RLA was enacted, this Court

has repeatedly granted certiorari to address questions

concerning the statutory process for resolving railroad

employee disputes. In doing so, this Court has recognized that “the peaceable settlement of labor controversies, especially where they may seriously impair

the ability of an interstate rail carrier to perform its

service to the public, is a matter of public concern.”

Virginian Ry. v. Sys. Fed’n, 300 U.S. 515, 552 (1937);

see also, e.g., Conrail, 491 U.S. at 311. The time has

4

come for the Court to once again uphold these important interests.

A. Railroad Employee Disciplinary Disputes Belong in Arbitration.

One of the most foundational principles of federal

railroad labor law is that disagreements between employees and rail carriers over employee discipline (and

related grievances) must be resolved through the

mandatory and exclusive “minor dispute” procedures—including arbitration—set forth in Section 3 of

the RLA, 45 U.S.C. § 153. This Court has repeatedly

held that these disputes belong before an arbitrator

and not in court. See, e.g., Conrail, 491 U.S. at 303–

04; Sheehan, 439 U.S. at 94; Andrews v. Louisville &

Nashville R.R., 406 U.S. 320 (1972); Slocum v. Del.,

Lackawanna & W. R.R., 339 U.S. 239, 243–44 (1950);

Order of Ry. Conductors of Am. v. Pitney, 326 U.S. 561,

567 (1946).

There are several reasons why this is so. First,

reliance on the Section 3 procedures helps to “‘maintain agreements’, by assuring that collective-bargaining contracts are enforced by arbitrators who are experts in ‘the common law of’” the industry. Conrail,

491 U.S. at 310 (quoting United Steelworkers of Am.

v. Warrior & Gulf Navigation Co., 363 U.S. 574, 579

(1960)). As this Court has explained,

The Railway Adjustment Board, composed

equally of representatives of management and

labor is peculiarly familiar with the thorny

problems and the whole range of grievances

that constantly exist in the railroad world. Its

membership is in daily contact with workers

5

and employers, and knows the industry’s language, customs, and practices. . . . Congress,

in the Railway Labor Act, invested the Adjustment Board with the broad power to arbitrate

grievances and plainly intended that interpretation of these controversial provisions should

be submitted for the decision of railroad men,

both workers and management, serving on the

Adjustment Board with their long experience

and accepted expertise in this field.

Gunther v. San Diego & Ariz. E. Ry., 382 U.S. 257,

261–62 (1965). See also Slocum, 339 U.S. at 243–44

(railroad grievances must be left for “determination by

the Adjustment Board, a congressionally designated

agency peculiarly competent in this field.”); Pitney,

326 U.S. at 567 (“An agency especially competent and

specifically designated to deal with [labor disputes]

has been created by Congress. Under these circumstances the court should exercise equitable discretion

to give that agency the first opportunity to pass on the

issue.”).

Second, channeling these matters into arbitration

avoids unnecessary burdens on the courts. Railroad

employees and unions file thousands of claims every

year across the industry as a whole. See National Mediation Board Open/Closed Case Report, available at

https://nmbworkspace.secure.force.com/openclosed

(last visited Oct. 4, 2022) (noting there are currently

5,553 open claims). Inviting or encouraging transfer

of even a small percentage of those claims to the federal courts would greatly increase the workload of the

nation’s judicial system.

6

Third, the Section 3 process offers a fair and comprehensive means of addressing employee grievances,

including challenges to discipline. In particular, as

Union Pacific points out, arbitrators are fully capable

of assessing claims that discipline was motivated by

anti-union animus, and are empowered to offer a remedy if the claim is proven.2 In this case, for example,

if the employees’ position were sustained in arbitration, the arbitrator could make them whole, including

by ordering full back pay for any period during which

the employees were dismissed or otherwise held out of

service. Gen. Comm. of Adjustment, UTU v. CSX R.R.,

893 F.2d 584, 593 (3d Cir. 1990) (arbitrator “can grant

a complete and adequate remedy to the prevailing

party.”); see also Conrail, 491 U.S. at 310 n.8 (“In most

cases where the Board determines that the employer's

conduct was not justified by the contract, the Board

will be able to fashion an appropriate compensatory

remedy which takes account of the delay.”). Thus, despite union efforts to characterize railroad labor arbitration as a second-tier dispute resolution system that

deprives employees of a fair hearing or adequate remedies, it is, in fact, more-than sufficient to address any

form of challenge to discipline.

See, e.g., UTU v. Soo Line R.R., Award No. 25200, NRAB

First Div. (Peterson, Arb.) (May 14, 2001), available at

https://knowledgestore.nmb.gov (board had authority to consider

a properly filed claim that exclusion of representative from disciplinary hearing was result of anti-union animus); BMWE v. CSX

Transp., Inc., Award No. 35022, NRAB Third Div. (Kenis, Arb.)

(Oct. 25, 2000), available at https://knowledgestore.nmb.gov (rejecting claim that discipline was motivated by anti-union animus); TCU v. Chi., Cent. & Pac. R.R., Award No. 30681, NRAB

Third Div. (Malin, Arb.) (Jan. 31, 1995), available at

https://knowledgestore.nmb.gov (same).

2

7

B. The Fifth Circuit’s Ruling Allows Unions to

Evade Arbitration.

Despite the ready availability and obvious advantages of specialized railroad labor arbitration,

many unions spend a great deal of time and effort trying to convince federal courts that various employee

disciplinary disputes are, in fact, “statutory” in nature

and therefore within the jurisdiction of the courts. For

example, some unions have tried recasting disciplinary issues as a question of the parties’ duty to exert

“reasonable efforts” under Section 2 First of the RLA.

E.g., BMWED v. Norfolk S. Ry., 745 F.3d 808, 814 (7th

Cir. 2014). They have also argued that employee discipline can and should be viewed as a question of “retaliation” for filing grievances under Section 3.

BMWED v. BNSF Ry., 134 F. Supp. 3d 1208, 1214

(C.D. Cal. 2015). And, as the union did in this case,

they claim that discipline violates the representation

provisions set forth in Sections 2 Third and Fourth of

the RLA. See, e.g., UTU v. Amtrak, 588 F.3d 805, 812

(2d Cir. 2009); Ass’n of Flight Attendants, AFL-CIO v.

Horizon Air Indus., Inc., 280 F.3d 901, 906 (9th Cir.

2002); Amtrak v. IAMAW, 915 F.2d 43, 51 (1st Cir.

1990); Indep. Union of Flight Attendants v. Pan Am.

World Airways, Inc., 789 F.2d 139, 142 (2d Cir. 1986);

IAMAW v. Nw. Airlines, Inc., 673 F.2d 700, 707–08

(3rd Cir. 1982).

Relying on this Court’s decision in Conrail, 491

U.S. at 303–04, the lower federal courts have usually

rejected efforts to reframe minor disputes as some

form of “statutory” issue (such as a violation of Section

2 Third and/or Fourth). See, e.g., Int’l Bhd. of Teamsters, AFL-CIO v. UPS Co., 447 F.3d 491, 503 (6th Cir.

2006) (“The union offers no explanation why we

8

should ignore the path charted by other courts that

have addressed this issue and why instead we should

grant federal jurisdiction to post-certification ‘representation’ disputes over the meaning of a collective

bargaining agreement, notwithstanding the existence

of the system adjustment boards, which were established for this precise purpose.”). 3 In doing so, the

lower courts have generally adhered to this Court’s

admonition that they should be wary of any invitation

to intervene in a minor dispute—including disputes

over employee discipline—given the availability of arbitration under the RLA. See Trans World Airlines,

Inc. v. Indep. Fed’n of Flight Attendants, 489 U.S. 426,

441 (1989) (“TWA”) (cautioning against “judicial intervention in RLA procedures” except where “‘there

would be no remedy to enforce the statutory commands’” of the RLA).

Now, however, the unions can point to the Fifth

Circuit’s decision, saying it throws open the courthouse doors to any aggrieved employee who merely alleges that his or her discipline was motivated by “antiunion animus.” While tacitly acknowledging that the

See also, e.g., Norfolk S. Ry., 745 F.3d at 815 (in case where

“dispute grew out of the application of the parties’ collective bargaining agreement in employee disciplinary actions,” union cannot rely on § 2 First to establish federal court jurisdiction);

BMWED v. CSX Transp., Inc., 143 F. App’x 155, 160–62 (11th

Cir. 2005) (“Virtually any dispute over the meaning of a term of

an agreement could be recast as a dispute over the corresponding

§ 2 First requirements . . .”); Horizon Air, 280 F.3d at 906 (dispute over wearing of union pins can be decided in arbitration,

rejecting argument that the dispute is statutory in nature); BRC

v. Atchison, Topeka & Santa Fe Ry., 894 F.2d 1463, 1466–69 (5th

Cir. 1990) (Conrail analysis applies despite union argument regarding “direct statutory violation of the RLA’s prohibition

against direct dealing”).

3

9

disciplinary question could be handled by an arbitrator, the Fifth Circuit nevertheless concluded that a

union can still bring a claim in court so long as the

employee discipline at issue allegedly “target[s] an individual union representative or a particular union

branch.” Pet. App. 16a.

That is a radical expansion of judicial oversight of

railroad employee disciplinary matters. Unions decide

which and how many of their members should have

some official position in the organization. In the industry’s estimation, at least ten percent of the approximately 100,000 unionized employees of the Class I

freight railroads—as many as 10,000 individuals—

claim to have some form of union role or status. Many

of them are so-called “working” local officers, meaning

that they hold full-time jobs with a railroad but also

perform some union-related duties on the side. Moreover, even employees who have no official role in the

union could presumably allege that they have been

singled out for discipline because of their pro-union

sympathies or support for their organization. See,

e.g., Horizon Air, 280 F.3d at 903–04 (alleged retaliation against flight attendants who wore pro-union

pins). Under the Fifth Circuit’s reasoning, any of

those employees can now challenge virtually any discipline in court rather than in arbitration.4 And with

hundreds of discipline-related grievances filed each

year, it is easy to see how this could quickly become a

It is little comfort to say that an employee must be able to

allege discriminatory animus in order to file in court. The experience of the federal courts with the volume of cases under Title

VII and similar anti-discrimination laws shows how easy it is for

a disgruntled employee to allege that almost any adverse employment action was motivated by protected status.

4

10

strain on the resources of both the railroads and the

courts.

Such an unwarranted expansion of Section 2

Third is of concern not just to Union Pacific, but to all

railroads subject to the RLA (and presumably to airlines as well, who are subject to essentially the same

statutory scheme for resolution of employee disciplinary grievances). Given the significance of these industries to the national economy and the major impact that the ruling below would have on the efficient

resolution of employee disputes in the transportation

sector, this Court should grant certiorari and restore

Section 3 arbitration as the mandatory and exclusive

forum for disciplinary grievances.

C. The Fifth Circuit’s Ruling Perpetuates the

Mistaken Assumption that Section 2 Third Provides

an Implied Cause of Action.

In addition to its overly expansive interpretation

of Section 2 Third, the Fifth Circuit assumed that Section 2 Third provides an implied cause of action for

employees and unions. This Court should grant certiorari to correct that long-standing but clearly erroneous view.

Many years ago—in the era when this Court last

addressed the meaning of Section 2 Third—federal

courts generally believed that it was their duty to

“provide such remedies as are necessary to make effective the congressional purpose” expressed by a statute. J. I. Case Co. v. Borak, 377 U.S. 426, 433 (1964).

However, as this Court explained in Alexander v.

Sandoval, 532 U.S. 275 (2001), that is no longer the

law. Modern jurisprudence provides that “private

rights of action to enforce federal law must be created

11

by Congress.” Id. at 286. And whether Congress has

created a private right of action is a question of statutory intent, as revealed, first and foremost, by the text

of the statute in question. Id. at 286–87 (“Without

[congressional intent], a cause of action does not exist

and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.”); Thompson v. Thompson, 484

U.S. 174, 179, (1988) (“[U]nless this congressional intent can be inferred from the language of the statute,

the statutory structure, or some other source, the essential predicate for implication of a private remedy

simply does not exist.”).

In determining whether Congress intended to create an implied private right of action, this Court has

emphasized that the existence of an express cause of

action will typically foreclose judicial creation of additional rights. See, e.g., Transamerica Mortg. Advisors,

Inc. v. Lewis, 444 U.S. 11, 20, 23–24 (1979) (“In view

of these express provisions for enforcing the duties imposed . . . , it is highly improbable that ‘Congress absentmindedly forgot to mention an intended private

action.’”); Nat’l R.R. Passenger Corp. v. Nat’l Ass’n of

R.R. Passengers, 414 U.S. 453, 458 (1974) (“[W]hen

legislation expressly provides a particular remedy or

remedies, courts should not expand the coverage of

the statute to subsume other remedies.”).

When these modern rules are applied to Section 2

Third, it is quite clear that there is no implied right of

action. In Section 2 Tenth of the RLA, Congress expressly provided a process for addressing violations of

Section 2 Third. It provides that the “willful failure or

refusal of any carrier . . . to comply with the terms of

the third, fourth, fifth, seventh, or eighth paragraph

12

of this section shall be a misdemeanor . . . .” 45 U.S.C.

§ 152 Tenth.5 It further provides that the “duly designated representative of a carrier’s employees”—i.e. a

labor union—must “apply” to the United States attorney in the “proper court,” who then must prosecute the

matter “under the direction of the Attorney General of

the United States.” Id. There is no mention of an additional or alternative private right of action by unions or their members.

The lower courts’ mistaken creation of an implied

cause of action under Section 2 Third has been a significant burden for the railroads (and airlines), who

are forced to litigate those claims. That burden will

now only grow with the Fifth Circuit’s expansion of

the private cause of action. The Court should grant

certiorari and hold that, as the text of the RLA states,

unions and employees need to apply to the United

States attorney if they wish to pursue a claim under

Section 2 Third.

II. The Court Should Resolve the Confusion in

the Lower Courts Over the Scope and

Meaning of Section 2 Third.

In its Petition, Union Pacific sets forth a complete

and cogent explanation of how the circuits are split on

the meaning of the term “representative” under Section 2 Third. Pet. at 11–14. As it shows, the lower

The other provisions of Section 2 are not mentioned in Section 2 Tenth, indicating that Congress intended that those provisions would be enforceable by private right of action. See Chi.

& N. W. Ry. v. United Transp. Union, 402 U.S. 570, 577 (1971)

(finding that Section 2 First of the RLA is “enforceable by whatever appropriate means might be developed on a case-by-case basis”).

5

13

courts have adopted multiple inconsistent interpretations. At one end of the spectrum, the Second Circuit

has held that “representative” means the singular entity—the organization—that is the duly designated

bargaining representative, not officers of the union. At

the other end, we now have the Fifth Circuit’s holding

that “representative” encompasses any individual officer (even if the person has no role in collective bargaining). The Sixth Circuit is somewhere in-between.

The industry agrees with Union Pacific that these

courts’ interpretations of “representative” are irreconcilable and thus reflect a clear and mature circuit split

that this Court should resolve.

There is, however, a further problem with the

body of case law under Section 2 Third that this Court

should also address. The circuit courts have adopted

widely varying standards regarding what is necessary

to show a violation of Section 2 Third (and/or Section

2 Fourth of the RLA, which both courts and parties

often treat as interchangeable with 2 Third). Those

formulations include—but are not limited to—the following:

•

First Circuit: “[W]e will intervene upon

demonstration of carrier conduct reflecting

anti-union animus, an attempt to interfere

with employee choice of collective bargaining

representative, discrimination, or coercion. In

addition, we will intervene when a carrier commits acts of intimidation that cannot be remedied by administrative means, or commits a

fundamental attack on the collective bargaining process or makes a direct attempt to de-

14

stroy a union.” Wightman v. Springfield Terminal Ry., 100 F.3d 228, 234 (1st Cir. 1996) (citation omitted).

•

Second Circuit: “[F]ederal judicial intervention” is “warranted[] only where” “the statutorily-created adjustment board procedure

might . . . be considered ineffective . . . .” Indep.

Union of Flight Attendants, 789 F.2d at 141–

42.

•

Seventh Circuit: “The only basis for judicial

intervention pursuant to Section 2, Fourth at

this [post-certification] stage is when either

side to the dispute has employed self-help

measures that are ‘inherently destructive of

union or employer activity.’” Dempsey v.

Atchison, Topeka & Santa Fe Ry., 16 F.3d 832,

841 (7th Cir. 1994).

•

Eighth Circuit: “[N]o cause of action lies under § 2 Third when the complaining party

‘fail[s] to present adequate evidence that [the

railroad’s] actions have been motivated by

anti-union animus or that [the railroad’s] actions were an attempt to interfere with its employees’ choice of their collective bargaining

representative.’” Bhd. of Locomotive Eng’rs v.

Kan. City S. Ry., 26 F.3d 787, 795 (8th Cir.

1994).

•

Ninth Circuit: “Judicial intervention in postcertification RLA cases has traditionally been

limited to those instances where ‘but for the

general jurisdiction of the federal courts there

would be no remedy to enforce the statutory

commands which Congress had written into

15

the Railway Labor Act.’” Horizon Air, 280 F.3d

at 905 (quoting TWA, 489 U.S. at 441).

Given the inconsistent language in these decisions, the current state of the law under Section 2

Third is, at best, murky. What is required for an employee or a union to bring a claim? Just an allegation

of any form of “anti-union animus”? Or does the claimant have to plead a “fundamental attack” that

amounts to an attempt to “destroy” the union? Is it

necessary to show that Section 3 arbitration would be

“ineffective” or unavailable? Or, as the Fifth Circuit

held in this case, is a claimant entitled to proceed in

court even though the allegations could be addressed

in arbitration? As matters stand, parties are left to

guess.

*

*

*

It has been 33 years since this Court last addressed Section 2 Third. In that time, the debates between railroads and unions over arbitration of disciplinary disputes have intensified, while the lower

courts have (in many cases) drifted away from the text

of the statute. Thus, the time has come for the Court

to once again provide direction as to the proper interpretation of this important provision of the Railway

Labor Act.

16

CONCLUSION

The Court should grant the petition for writ of certiorari.

OCTOBER 7, 2022

Respectfully submitted,

DONALD J. MUNRO

Counsel of Record

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

dmunro@jonesday.com

Counsel for Amici Curiae Association of American

Railroads and National Railway Labor Conference